Case: 3:17-cv-4701 As of: 03/09/2020 07:39 AM PDT 1 of 24
ADRMOP,APPEAL,CLOSED,RELATE
U.S. District Court California Northern District (San Francisco) CIVIL DOCKET FOR CASE #: 3:17−cv−04701−WHO

State of California, ex rel. XAVIER BECERRA, in his official capacity as Attorney General of the State of California v. Sessions et al Assigned to: Judge William H. Orrick Relate Case Case: 3:17−cv−00485−WHO
Case in other court: 18−17311 Cause: 28:1331 Fed. Question
Plaintiff

Date Filed: 08/14/2017 Date Terminated: 10/05/2018 Jury Demand: None Nature of Suit: 890 Other Statutory Actions Jurisdiction: U.S. Government Defendant

State of California, ex rel. XAVIER BECERRA, in his official capacity as Attorney General of the 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 ATTORNEY TO BE NOTICED

Sarah Elizabeth Belton Supervisiong Deputy Attorney General 1515 Clay Street, Suite 2100 Oakland, CA 94612 510−879−0009 Email: Sarah.Belton@doj.ca.gov ATTORNEY TO BE NOTICED

Lee Isaac Sherman California Department of Justice 300 S. Spring Street Los Angeles, CA 90013 (213) 269−6404 Email: lee.sherman@doj.ca.gov ATTORNEY TO BE NOTICED

V. Defendant Jefferson Beauregard Sessions, III

represented by Antonia Konkoly U.S. Department of Justice Federal Programs Branch 20 Massachusetts Avenue NW Washington, DC 20530 202−514−2395 Email: antonia.konkoly@usdoj.gov ATTORNEY TO BE NOTICED
August Flentje U.S. Department of Justice Civil Division 950 Pennsylvania Avenue NW Room 3613 Washington, DC 20530 202−514−3309 Email: august.flentje@usdoj.gov ATTORNEY TO BE NOTICED
Daniel D. Mauler

Case: 3:17-cv-4701 As of: 03/09/2020 07:39 AM PDT 2 of 24

Defendant Acting Asst. AG Alan R Hanson
Defendant United States Department of Justice
Defendant Laura L. Rogers

U.S. Department of Justice Civil Division − Federal Programs Branch 20 Massachusetts Ave, NW Room 6141 Washington, DC 20530 202−616−0773 Email: dan.mauler@usdoj.gov ATTORNEY TO BE NOTICED
W. Scott Simpson U.S. Department of Justice, Civil Division 318 South Sixth Street, Room 244 Springfield, IL 62701 202−514−3495 Email: scott.simpson@usdoj.gov ATTORNEY TO BE NOTICED
represented by Antonia Konkoly (See above for address) ATTORNEY TO BE NOTICED
August Flentje (See above for address) ATTORNEY TO BE NOTICED
Daniel D. Mauler (See above for address) ATTORNEY TO BE NOTICED
W. Scott Simpson (See above for address) ATTORNEY TO BE NOTICED
represented by Antonia Konkoly (See above for address) ATTORNEY TO BE NOTICED
August Flentje (See above for address) ATTORNEY TO BE NOTICED
Daniel D. Mauler (See above for address) ATTORNEY TO BE NOTICED
W. Scott Simpson (See above for address) ATTORNEY TO BE NOTICED
represented by Antonia Konkoly (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
W. Scott Simpson (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
August Flentje

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Defendant Matt M. Dummermuth
Defendant Phil E. Keith
Defendant Mathew Whitaker
Defendant William P. Barr Interested Party Tara M. Steeley
Amicus Current and Former Prosecutors and Law Enforcement Leaders

(See above for address) ATTORNEY TO BE NOTICED
represented by W. Scott Simpson (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
August Flentje (See above for address) ATTORNEY TO BE NOTICED
represented by W. Scott Simpson (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
August Flentje (See above for address) ATTORNEY TO BE NOTICED
represented by W. Scott Simpson (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
August Flentje (See above for address) ATTORNEY TO BE NOTICED
represented by W. Scott Simpson (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
represented by Tara M. Steeley San Francisco City Attorney's Office City Hall, Room 234 1 Dr. Carlton B. Goodlett Place San Francisco, CA 94102 415−554−4655 Fax: 415−554−4699 Email: tara.steeley@sfcityatty.org LEAD ATTORNEY ATTORNEY TO BE NOTICED
represented by Matthew J. Piers Hughes, Socol, Piers, Resnick & Dym, Ltd. Three First National Plaza 70 West Madison Street, Suite 4000 Chicago, IL 60602 (312) 580−0100 Fax: (312) 580−1994 Email: mpiers@hsplegal.com

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Amicus Administrative Law, Constitutional Law, and Immigration Law Scholars Amicus Anti−Defamation League
Amicus County of Los Angeles
Amicus District of Columbia

LEAD ATTORNEY ATTORNEY TO BE NOTICED
represented by Jamison Davies Patterson Belknap Webb and Tyler LLP 1133 Avenue of the Americas New York, NY 10036 212−336−2455 Email: jdavies25@gmail.com TERMINATED: 07/11/2018
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
represented by Margaret Louise Carter O'Melveny and Myers LLP 400 S. Hope Street Los Angeles, CA 90071−2899 (213) 430−7592 Fax: (213) 430−6407 Email: mcarter@omm.com LEAD ATTORNEY ATTORNEY TO BE NOTICED
Daniel R. Suvor O'Melveny & Myers LLP 400 South Hope Street Los Angeles, CA 90071 (213) 430−7669 Fax: (213) 430−6407 Email: dsuvor@omm.com ATTORNEY TO BE NOTICED
James Wesley Crooks O'Melveny and Myers 1625 Eye Street NW Washington, DC 20006 202−383−5178 Email: jcrooks@omm.com ATTORNEY TO BE NOTICED
represented by Jimmy Rock Office of Attorney General, D.C. Public Advocacy Division 441 Fourth Street NW Suite 600−S Washington, DC 20001 202−741−0770 Email: jimmy.rock@dc.gov ATTORNEY TO BE NOTICED

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Amicus Public Counsel
Amicus American Civil Liberties Union Foundation Immigrants' Rights Project
Amicus American Civil Liberties Union Foundation of Northern California, Inc.
Amicus National Immigrant Justice Center

represented by Daniel Stanley John Nowicki Gibson Dunn and Crutcher 1881 Page Mill Road Palo Alto, CA 94304−1211 (650) 849−5300 Email: dnowicki@gibsondunn.com LEAD ATTORNEY ATTORNEY TO BE NOTICED
represented by Cody H. Wofsy ACLU Immigrants' Rights Project 39 Drumm Street San Francisco, CA 94111 415−343−0785 Fax: 415−395−0950 Email: cwofsy@aclu.org ATTORNEY TO BE NOTICED
Mark M. Fleming National Immigrant Justice Center 208 S. LaSalle Street Suite 1300 Chicago, IL 60604 312−660−1628 Email: mfleming@heartlandalliance.org ATTORNEY TO BE NOTICED
Spencer Elijah Wittmann Amdur ACLU Immigrants' Rights Project 125 Broad Street, 18th Floor New York, NY 10004 (212) 549−2572 Email: samdur@aclu.org ATTORNEY TO BE NOTICED
represented by Cody H. Wofsy (See above for address) ATTORNEY TO BE NOTICED
Mark M. Fleming (See above for address) ATTORNEY TO BE NOTICED
Spencer Elijah Wittmann Amdur (See above for address) ATTORNEY TO BE NOTICED
represented by Cody H. Wofsy (See above for address) ATTORNEY TO BE NOTICED
Mark M. Fleming (See above for address) ATTORNEY TO BE NOTICED
Spencer Elijah Wittmann Amdur (See above for address) ATTORNEY TO BE NOTICED

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Amicus Amici Curiae Immigrant Legal Resource Center
Amicus Asian Americans Advancing Justice − Asian Law Caucus
Amicus National Day Laborer Organizing Network
Amicus Kamala Harris
Amicus Richard Blumenthal
Amicus Cory Booker
Amicus Richard J. Durbin
Amicus Mazie K. Hirono

represented by W. Hardy Callcott Sidley Austin LLP 555 California Street Suite 2000 San Francisco, CA 94104 (415)772−1200 Fax: (415)772−7400 Email: hcallcott@sidley.com LEAD ATTORNEY ATTORNEY TO BE NOTICED
represented by W. Hardy Callcott (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
represented by W. Hardy Callcott (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
represented by Elizabeth B. Wydra Constitutional Accountability Center 1200 18th Street, NW Suite 501 Washington, DC 20036 202 296 6889 Fax: 202 296 6895 Email: elizabeth@theusconstitution.org LEAD ATTORNEY ATTORNEY TO BE NOTICED
represented by Elizabeth B. Wydra (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
represented by Elizabeth B. Wydra (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
represented by Elizabeth B. Wydra (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
represented by Elizabeth B. Wydra (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

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Amicus Patrick J. Leahy
Amicus Robert Menendez
Amicus Sheldon Whitehouse
Amicus Ron Wyden
Amicus Zoe Lofgren
Amicus Nancy Pelosi
Amicus Pete Aguilar
Amicus Nanette Diaz Barragan
Amicus Karen Bass
Amicus Judy Chu

represented by Elizabeth B. Wydra (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
represented by Elizabeth B. Wydra (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
represented by Elizabeth B. Wydra (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
represented by Elizabeth B. Wydra (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
represented by Elizabeth B. Wydra (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
represented by Elizabeth B. Wydra (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
represented by Elizabeth B. Wydra (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
represented by Elizabeth B. Wydra (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
represented by Elizabeth B. Wydra (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
represented by Elizabeth B. Wydra (See above for address) LEAD ATTORNEY

Case: 3:17-cv-4701 As of: 03/09/2020 07:39 AM PDT 8 of 24

Amicus Mark DeSaulnier
Amicus Anna G. Eshoo
Amicus Jimmy Gomez
Amicus Congressman Jared Huffman
Amicus Pramila Jayapal
Amicus Barbara Lee
Amicus Ted W. Lieu
Amicus Alan Lowenthal
Amicus Doris O. Matsui
Amicus Jerry McNerney

ATTORNEY TO BE NOTICED
represented by Elizabeth B. Wydra (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
represented by Elizabeth B. Wydra (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
represented by Elizabeth B. Wydra (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
represented by Elizabeth B. Wydra (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
represented by Elizabeth B. Wydra (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
represented by Elizabeth B. Wydra (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
represented by Elizabeth B. Wydra (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
represented by Elizabeth B. Wydra (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
represented by Elizabeth B. Wydra (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
represented by Elizabeth B. Wydra (See above for address)

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Amicus Grace F. Napolitano
Amicus Lucille Roybal−Allard
Amicus Eric Swalwell
Amicus Mike Thompson
Amicus Norma Torres
Amicus State of New York
Amicus State of Connecticut
Amicus State of Delaware
Amicus State of Illinois

LEAD ATTORNEY ATTORNEY TO BE NOTICED
represented by Elizabeth B. Wydra (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
represented by Elizabeth B. Wydra (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
represented by Elizabeth B. Wydra (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
represented by Elizabeth B. Wydra (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
represented by Elizabeth B. Wydra (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
represented by Linda Fang New York State Office of the Attorney General 28 Liberty Street New York, NY 10005 212−416−8656 Fax: 212−416−8962 Email: linda.fang@ag.ny.gov ATTORNEY TO BE NOTICED
represented by Linda Fang (See above for address) ATTORNEY TO BE NOTICED
represented by Linda Fang (See above for address) ATTORNEY TO BE NOTICED
represented by Linda Fang (See above for address) ATTORNEY TO BE NOTICED

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Amicus State of Iowa
Amicus State of Maryland
Amicus Commonwealth of Massachusetts
Amicus State of New Jersey
Amicus State of New Mexico
Amicus State of Oregon
Amicus State of Rhode Island
Amicus State of Washington
Amicus District of Columbia

represented by Linda Fang (See above for address) ATTORNEY TO BE NOTICED
represented by Linda Fang (See above for address) ATTORNEY TO BE NOTICED
represented by Linda Fang (See above for address) ATTORNEY TO BE NOTICED
represented by Linda Fang (See above for address) ATTORNEY TO BE NOTICED
represented by Linda Fang (See above for address) ATTORNEY TO BE NOTICED
represented by Linda Fang (See above for address) ATTORNEY TO BE NOTICED
represented by Linda Fang (See above for address) ATTORNEY TO BE NOTICED
represented by Linda Fang (See above for address) ATTORNEY TO BE NOTICED
represented by Linda Fang (See above for address) ATTORNEY TO BE NOTICED

Date Filed 08/14/2017
08/14/2017 08/14/2017

# Docket Text
1 COMPLAINT FOR DECLARATORY AND INJUNCTIVE RELIEF against All Defendants ( Filing fee $ 400, receipt number 0971−11630590.). Filed byState of California, ex rel. XAVIER BECERRA, in his official capacity as Attorney General of the State of California. (Attachments: # 1 Exhibit A, # 2 Exhibit B)(Sherman, Lee) (Filed on 8/14/2017) (Entered: 08/14/2017)
2 Civil Cover Sheet by State of California, ex rel. XAVIER BECERRA, in his official capacity as Attorney General of the State of California . (Sherman, Lee) (Filed on 8/14/2017) (Entered: 08/14/2017)
3 Proposed Summons. (Sherman, Lee) (Filed on 8/14/2017) (Entered: 08/14/2017)

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08/15/2017
08/15/2017 08/15/2017 08/25/2017 08/25/2017 08/28/2017 10/13/2017 10/13/2017 10/13/2017 10/19/2017 10/19/2017 10/23/2017 10/25/2017

4 Case assigned to Magistrate Judge Maria−Elena James.
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 8/29/2017. (jmlS, COURT STAFF) (Filed on 8/15/2017) (Entered: 08/15/2017)
5 Initial Case Management Scheduling Order with ADR Deadlines: Case Management Statement due by 11/9/2017. Initial Case Management Conference set for 11/16/2017 10:00 AM. (hdjS, COURT STAFF) (Filed on 8/15/2017) Modified on 8/15/2017 (hdjS, COURT STAFF). (Entered: 08/15/2017)
6 Summons Issued as to Alan R Hanson, Jefferson Beauregard Sessions, III, United States Department Of Justice, Atrorney General Office, U.S. Attorney and U.S. Attorney General (hdjS, COURT STAFF) (Filed on 8/15/2017) (Entered: 08/15/2017)
7 ORDER RELATING CASE to Case No. 17−cv−485−WHO and additional related matters. Signed by Judge William H. Orrick on 08/25/2017. (jmdS, COURT STAFF) (Filed on 8/25/2017) (Entered: 08/25/2017)
8 AFFIDAVIT of Service for Process Server Affidavit served on Jefferson B. Sessions on 8.25.2017, filed by State of California, ex rel. XAVIER BECERRA, in his official capacity as Attorney General of the State of California. (Sherman, Lee) (Filed on 8/25/2017) (Entered: 08/25/2017)
9 Case reassigned to Judge Hon. William H. Orrick. Magistrate Judge Maria−Elena James 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 (srnS, COURT STAFF) (Filed on 8/28/2017) (Entered: 08/28/2017)
10 NOTICE of Appearance by Lisa Catherine Ehrlich (Ehrlich, Lisa) (Filed on 10/13/2017) (Entered: 10/13/2017)
11 AMENDED COMPLAINT For Declaratory and Injunctive Relief against Jefferson Beauregard Sessions, III. Filed byState of California, ex rel. XAVIER BECERRA, in his official capacity as Attorney General of the State of California. (Sherman, Lee) (Filed on 10/13/2017) (Entered: 10/13/2017)
12 CERTIFICATE OF SERVICE by State of California, ex rel. XAVIER BECERRA, in his official capacity as Attorney General of the State of California (Ehrlich, Lisa) (Filed on 10/13/2017) (Entered: 10/13/2017)
13 CERTIFICATE OF SERVICE by State of California, ex rel. XAVIER BECERRA, in his official capacity as Attorney General of the State of California (Ehrlich, Lisa) (Filed on 10/19/2017) (Entered: 10/19/2017)
14 CASE MANAGEMENT CONFERENCE ORDER − Case Management Conference set for 11/21/2017 02:00 PM in Courtroom 2, 17th Floor, San Francisco. Case Management Statement due by 11/14/2017. Signed by Judge William H. Orrick on 10/19/2017. (jmdS, COURT STAFF) (Filed on 10/19/2017) (Entered: 10/19/2017)
15 CERTIFICATE OF SERVICE by State of California, ex rel. XAVIER BECERRA, in his official capacity as Attorney General of the State of California re 14 Case Management Scheduling Order, (Ehrlich, Lisa) (Filed on 10/23/2017) (Entered: 10/23/2017)
16 NOTICE of Appearance by Sarah Elizabeth Belton (Belton, Sarah) (Filed on 10/25/2017) (Entered: 10/25/2017)

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10/31/2017 10/31/2017 10/31/2017 10/31/2017 10/31/2017 10/31/2017 10/31/2017 10/31/2017 11/07/2017 11/07/2017
11/07/2017 11/07/2017

17 MOTION for Preliminary Injunction filed by State of California, ex rel. XAVIER BECERRA, in his official capacity as Attorney General of the State of California. Motion Hearing set for 12/6/2017 02:00 PM in Courtroom 2, 17th Floor, San Francisco before Judge William H. Orrick. Responses due by 11/14/2017. Replies due by 11/21/2017. (Sherman, Lee) (Filed on 10/31/2017) (Entered: 10/31/2017)
18 Request for Judicial Notice re 17 MOTION for Preliminary Injunction filed byState of California, ex rel. XAVIER BECERRA, in his official capacity as Attorney General of the State of California. (Attachments: # 1 Exhibit Part 1, # 2 Exhibit Part 2)(Related document(s) 17 ) (Sherman, Lee) (Filed on 10/31/2017) (Entered: 10/31/2017)
19 Declaration of Lee I. Sherman in Support of 17 MOTION for Preliminary Injunction filed byState of California, ex rel. XAVIER BECERRA, in his official capacity as Attorney General of the State of California. (Attachments: # 1 Exhibit)(Related document(s) 17 ) (Sherman, Lee) (Filed on 10/31/2017) (Entered: 10/31/2017)
20 Declaration of Mary Jolls in Support of 17 MOTION for Preliminary Injunction filed byState of California, ex rel. XAVIER BECERRA, in his official capacity as Attorney General of the State of California. (Attachments: # 1 Exhibit Part 1, # 2 Exhibit Part 2)(Related document(s) 17 ) (Sherman, Lee) (Filed on 10/31/2017) (Entered: 10/31/2017)
21 Declaration in Support of 17 MOTION for Preliminary Injunction filed byState of California, ex rel. XAVIER BECERRA, in his official capacity as Attorney General of the State of California. (Attachments: # 1 Exhibit)(Related document(s) 17 ) (Sherman, Lee) (Filed on 10/31/2017) (Entered: 10/31/2017)
22 Declaration in Support of 17 MOTION for Preliminary Injunction filed byState of California, ex rel. XAVIER BECERRA, in his official capacity as Attorney General of the State of California. (Related document(s) 17 ) (Sherman, Lee) (Filed on 10/31/2017) (Entered: 10/31/2017)
23 Proposed Order re 17 MOTION for Preliminary Injunction by State of California, ex rel. XAVIER BECERRA, in his official capacity as Attorney General of the State of California. (Sherman, Lee) (Filed on 10/31/2017) (Entered: 10/31/2017)
24 CERTIFICATE OF SERVICE by State of California, ex rel. XAVIER BECERRA, in his official capacity as Attorney General of the State of California re 18 Request for Judicial Notice, 19 Declaration in Support, 17 MOTION for Preliminary Injunction , 21 Declaration in Support, 20 Declaration in Support, 22 Declaration in Support, (Sherman, Lee) (Filed on 10/31/2017) (Entered: 10/31/2017)
25 ADMINISTRATIVE MOTION Leave to File Excess Pages re Amended Motion for Preliminary Injunction filed by State of California, ex rel. XAVIER BECERRA, in his official capacity as Attorney General of the State of California. Responses due by 11/13/2017. (Attachments: # 1 Proposed Order Stipulation and Proposed Order)(Sherman, Lee) (Filed on 11/7/2017) (Entered: 11/07/2017)
26 Amended MOTION for Preliminary Injunction filed by State of California, ex rel. XAVIER BECERRA, in his official capacity as Attorney General of the State of California. Motion Hearing set for 12/13/2017 02:00 PM in Courtroom 2, 17th Floor, San Francisco before Judge William H. Orrick. Responses due by 11/21/2017. Replies due by 11/28/2017. (Attachments: # 1 Proposed Order)(Sherman, Lee) (Filed on 11/7/2017) (Entered: 11/07/2017)
27 Request for Judicial Notice re 26 Amended MOTION for Preliminary Injunction filed byState of California, ex rel. XAVIER BECERRA, in his official capacity as Attorney General of the State of California. (Attachments: # 1 Exhibit RJN Exs. A−E, # 2 Exhibit RJN Exs. F−I, # 3 Exhibit RJN Exs. J−X)(Related document(s) 26 ) (Sherman, Lee) (Filed on 11/7/2017) (Entered: 11/07/2017)
28 Declaration of Lee Sherman in Support of 26 Amended MOTION for Preliminary Injunction filed byState of California, ex rel. XAVIER BECERRA, in his official capacity as Attorney General of the State of California. (Attachments: # 1 Exhibit Exs. A−L)(Related document(s) 26 ) (Sherman, Lee) (Filed on 11/7/2017) (Entered: 11/07/2017)

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11/07/2017
11/07/2017
11/07/2017 11/07/2017
11/08/2017 11/08/2017
11/09/2017 11/09/2017
11/09/2017 11/13/2017 11/14/2017 11/14/2017 11/20/2017 11/21/2017

29 Declaration of Mary Jolls in Support of 26 Amended MOTION for Preliminary Injunction filed byState of California, ex rel. XAVIER BECERRA, in his official capacity as Attorney General of the State of California. (Attachments: # 1 Exhibit A−C, # 2 Exhibit D)(Related document(s) 26 ) (Sherman, Lee) (Filed on 11/7/2017) (Entered: 11/07/2017)
30 Declaration of Christopher Caligiuri in Support of 26 Amended MOTION for Preliminary Injunction filed byState of California, ex rel. XAVIER BECERRA, in his official capacity as Attorney General of the State of California. (Attachments: # 1 Exhibit A−D)(Related document(s) 26 ) (Sherman, Lee) (Filed on 11/7/2017) (Entered: 11/07/2017)
31 Declaration of Jim McDonnell in Support of 26 Amended MOTION for Preliminary Injunction filed byState of California, ex rel. XAVIER BECERRA, in his official capacity as Attorney General of the State of California. (Related document(s) 26 ) (Sherman, Lee) (Filed on 11/7/2017) (Entered: 11/07/2017)
32 CERTIFICATE OF SERVICE by State of California, ex rel. XAVIER BECERRA, in his official capacity as Attorney General of the State of California re 26 Amended MOTION for Preliminary Injunction , 29 Declaration in Support, 31 Declaration in Support, 30 Declaration in Support, 28 Declaration in Support, 27 Request for Judicial Notice, 25 ADMINISTRATIVE MOTION Leave to File Excess Pages re Amended Motion for Preliminary Injunction (Sherman, Lee) (Filed on 11/7/2017) (Entered: 11/07/2017)
33 STIPULATION WITH PROPOSED ORDER re 26 Amended MOTION for Preliminary Injunction and Responsive Pleading Briefing filed by State of California, ex rel. XAVIER BECERRA, in his official capacity as Attorney General of the State of California. (Sherman, Lee) (Filed on 11/8/2017) (Entered: 11/08/2017)
34 CERTIFICATE OF SERVICE by State of California, ex rel. XAVIER BECERRA, in his official capacity as Attorney General of the State of California re 33 STIPULATION WITH PROPOSED ORDER re 26 Amended MOTION for Preliminary Injunction and Responsive Pleading Briefing (Sherman, Lee) (Filed on 11/8/2017) (Entered: 11/08/2017)
35 NOTICE of Appearance by Antonia Konkoly (Konkoly, Antonia) (Filed on 11/9/2017) (Entered: 11/09/2017)
36 Joint ADMINISTRATIVE MOTION Relief from Automatic Referral to the ADR Multi−Option Program filed by Alan R Hanson, Jefferson Beauregard Sessions, III, United States Department of Justice. Responses due by 11/13/2017. (Attachments: # 1 Proposed Order Stipulation and Proposed Order)(Konkoly, Antonia) (Filed on 11/9/2017) (Entered: 11/09/2017)
37 Order Granting Plaintiff State of California's Administrative Motion for Leave to Exceed Page Limits by Judge William H. Orrick granting 25 Stipulation. (jmdS, COURT STAFF) (Filed on 11/9/2017) (Entered: 11/09/2017)
38 ORDER RE SCHEDULING MATTERS granting 33 Stipulation. Signed by Judge William H. Orrick on 11/13/2017. (jmdS, COURT STAFF) (Filed on 11/13/2017) (Entered: 11/13/2017)
39 NOTICE of Appearance by W. Scott Simpson (Simpson, W.) (Filed on 11/14/2017) (Entered: 11/14/2017)
40 CASE MANAGEMENT STATEMENT & [PROPOSED] ORDER; filed by State of California, ex rel. XAVIER BECERRA, in his official capacity as Attorney General of the State of California. (Sherman, Lee) (Filed on 11/14/2017) Modified on 11/15/2017 (aaaS, COURT STAFF). (Entered: 11/14/2017)
41 ORDER REGARDING AMICUS BRIEFING. Signed by Judge William H. Orrick on 11/20/2017. (jmdS, COURT STAFF) (Filed on 11/20/2017) (Entered: 11/20/2017)
43 Minute Entry for proceedings held before Judge William H. Orrick: Case Management Conference held on 11/27/2018. Close of Fact Discovery: 6/29/2018. Dispositive Motion to be heard by 9/5/2018. Pretrial Conference set for

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11/22/2017
11/27/2017 11/27/2017 11/29/2017 11/29/2017
11/29/2017
11/29/2017 11/29/2017 11/29/2017 11/29/2017
11/29/2017
11/29/2017 11/29/2017

11/13/2018 02:00 PM and Bench Trial set for 12/10/2018 09:00 AM, both in Courtroom 2, 17th Floor before Judge William H. Orrick. FTR Time: 2:39−2:59. Plaintiff Attorneys: Aileen McGrath, Mollie Lee, Lisa Ehrlich, Sarah Belton, and Lee Sherman. Defendant Attorneys: Antonia Konkoly and W. Scott Simpson. (jmdS, COURT STAFF) (Date Filed: 11/21/2017) Matter transcribed by Victoria Valine. (notewarelS, COURT STAFF). (Entered: 11/27/2017)
42 OPPOSITION/RESPONSE to (re 26 Amended MOTION for Preliminary Injunction) filed by Alan R Hanson, Jefferson Beauregard Sessions, III, United States Department of Justice. (Attachments: # 1 Declaration of Alan R. Hanson, # 2 Declaration of Andrew A. Dorr, # 3 Request for Referendum, # 4 Declaration of Jim Brown)(Simpson, W.) (Filed on 11/22/2017) (Entered: 11/22/2017)
44 CIVIL PRETRIAL ORDER. Signed by Judge William H. Orrick on 11/27/2017. (jmdS, COURT STAFF) (Filed on 11/27/2017) (Entered: 11/27/2017)
45 Order Granting Joint Motion for Relief from Automatic Referral to the ADR Multi−Option Program by Judge William H. Orrick granting 36 Administrative Motion. (jmdS, COURT STAFF) (Filed on 11/27/2017) (Entered: 11/27/2017)
46 ADMINISTRATIVE MOTION Leave to File Brief Amici Curiae filed by Current and Former Prosecutors and Law Enforcement Leaders. Responses due by 12/4/2017. (Attachments: # 1 Exhibit Brief Amici Curiae, # 2 Proposed Order)(Piers, Matthew) (Filed on 11/29/2017) (Entered: 11/29/2017)
47 ADMINISTRATIVE MOTION Leave to File Amici Curiae Brief in Support of Plaintiff's Motion for a Preliminary Injunction filed by Administrative Law, Constitutional Law, and Immigration Law Scholars. Responses due by 12/4/2017. (Attachments: # 1 Exhibit Brief Amici Curiae, # 2 Proposed Order)(Davies, Jamison) (Filed on 11/29/2017) (Entered: 11/29/2017)
48 ADMINISTRATIVE MOTION for Leave to File Statement of Amicus Curiae Anti−Defamation League in Support of Plaintiff's Amended Motion for Preliminary Injunction filed by Anti−Defamation League. Responses due by 12/4/2017. (Attachments: # 1 Amicus Curiae Brief, # 2 Proposed Order)(Perrin, Robert) (Filed on 11/29/2017) (Entered: 11/29/2017)
49 NOTICE of Appearance by Margaret Louise Carter for Amicus Curiae County of Los Angeles (Carter, Margaret) (Filed on 11/29/2017) (Entered: 11/29/2017)
50 NOTICE of Appearance by Daniel R. Suvor for Amicus Curiae County of Los Angeles (Suvor, Daniel) (Filed on 11/29/2017) (Entered: 11/29/2017)
51 NOTICE of Appearance by James Wesley Crooks for Amicus Curiae County of Los Angeles (Crooks, James) (Filed on 11/29/2017) (Entered: 11/29/2017)
52 First ADMINISTRATIVE MOTION acceptance of Amicus Brief in support of Plaintiff's Motion for Preliminary Injunction filed by District of Columbia. Responses due by 12/4/2017. (Attachments: # 1 Errata Cover Sheet for Exhibit 1 to Motion, # 2 Exhibit 1 to Administrative Motion − proposed Amicus brief, # 3 Exhibit A to proposed Amicus Brief, # 4 Proposed Order)(Rock, Jimmy) (Filed on 11/29/2017) (Entered: 11/29/2017)
53 MOTION for Leave to File / Administrative Motion for Leave to File Brief of Amici Curiae 5 Counties and 9 Cities in Support of Plaintiff's Amended Motion for Preliminary Injunction (ECF. No. 26) filed by County of Los Angeles. (Attachments: # 1 Attachment − 1 Amicus Brief, # 2 Proposed Order)(Carter, Margaret) (Filed on 11/29/2017) (Entered: 11/29/2017)
54 ADMINISTRATIVE MOTION To File Amicus Curiae Brief in Support of Plaintiff's Motion for a Preliminary Injunction filed by Public Counsel. Responses due by 12/4/2017. (Attachments: # 1 Proposed Order)(Nowicki, Daniel) (Filed on 11/29/2017) (Entered: 11/29/2017)
55 MOTION to File Amicus Curiae Brief filed by American Civil Liberties Union Foundation Immigrants' Rights Project, American Civil Liberties Union Foundation of Northern California, Inc., National Immigrant Justice Center. Motion Hearing set for 12/13/2017 02:00 PM before Judge William H. Orrick. Responses due by 12/13/2017.

Case: 3:17-cv-4701 As of: 03/09/2020 07:39 AM PDT 15 of 24

11/29/2017
11/30/2017 11/30/2017 11/30/2017 12/01/2017 12/01/2017
12/01/2017 12/01/2017
12/01/2017 12/04/2017 12/04/2017 12/07/2017 12/11/2017

Replies due by 12/20/2017. (Attachments: # 1 Exhibit Proposed Amicus Brief, # 2 Proposed Order)(Amdur, Spencer) (Filed on 11/29/2017) (Entered: 11/29/2017)
56 MOTION for Leave to File Amicus Curiae Brief in Support of Plaintiff State of California's Motion for Preliminary Injunction filed by Amici Curiae Immigrant Legal Resource Center, Asian Americans Advancing Justice − Asian Law Caucus, National Day Laborer Organizing Network. (Attachments: # 1 [Proposed} Amicus Curiae Brief, # 2 Proposed Order)(Callcott, W.) (Filed on 11/29/2017) Modified on 12/4/2017 (wv, COURT STAFF). Modified on 12/4/2017 (wv, COURT STAFF). (Entered: 11/29/2017)
57 NOTICE of Appearance by Cody H. Wofsy (Wofsy, Cody) (Filed on 11/30/2017) (Entered: 11/30/2017)
58 NOTICE of Appearance by Mark M. Fleming (Fleming, Mark) (Filed on 11/30/2017) (Entered: 11/30/2017)
59 TRANSCRIPT ORDER for proceedings held on 11/21/2017 before Judge William H. Orrick by State of California, ex rel. XAVIER BECERRA, in his official capacity as Attorney General of the State of California, for Court Reporter FTR − San Francisco. (Sherman, Lee) (Filed on 11/30/2017) (Entered: 11/30/2017)
60 REPLY (re 26 Amended MOTION for Preliminary Injunction ) in support of its Motion for Preliminary Injunction filed byState of California, ex rel. XAVIER BECERRA, in his official capacity as Attorney General of the State of California. (Sherman, Lee) (Filed on 12/1/2017) (Entered: 12/01/2017)
61 Request for Judicial Notice in support of State of California's Reply in Support of its 26 Motion for Preliminary Injunction filed byState of California, ex rel. XAVIER BECERRA, in his official capacity as Attorney General of the State of California. (Sherman, Lee) (Filed on 12/1/2017) Modified on 12/4/2017 (aaaS, COURT STAFF). (Entered: 12/01/2017)
62 Declaration of Jim Hart In support of Plaintiff's Reply in SUppoort of its 26 Motion for Preliminary Injunction filed byState of California, ex rel. XAVIER BECERRA, in his official capacity as Attorney General of the State of California. (Sherman, Lee) (Filed on 12/1/2017) Modified on 12/4/2017 (aaaS, COURT STAFF). (Entered: 12/01/2017)
63 Declaration of Lee Sherman In support of Plaintiff's Reply in Support of its 26 Motion for Preliminary Injunction filed byState of California, ex rel. XAVIER BECERRA, in his official capacity as Attorney General of the State of California. (Sherman, Lee) (Filed on 12/1/2017) Modified on 12/4/2017 (aaaS, COURT STAFF). (Entered: 12/01/2017)
64 STIPULATION WITH PROPOSED ORDER RE scheduling matters filed by State of California, ex rel. XAVIER BECERRA, in his official capacity as Attorney General of the State of California. (Sherman, Lee) (Filed on 12/1/2017) (Entered: 12/01/2017)
65 Order re Scheduling Matters by Judge William H. Orrick granting 64 Stipulation. Close of Fact Discovery: 7/31/2018. Motion Hearing set for 2/28/2018 02:00 PM in Courtroom 2, 17th Floor, San Francisco before Judge William H. Orrick. (jmdS, COURT STAFF) (Filed on 12/4/2017) (Entered: 12/04/2017)
66 NOTICE by Alan R Hanson, Jefferson Beauregard Sessions, III, United States Department of Justice re 42 Opposition/Response to Motion, Notice of Administrative Action (Attachments: # 1 FY 2017 CAMP Award)(Simpson, W.) (Filed on 12/4/2017) (Entered: 12/04/2017)
67 RESPONSE to re 66 Notice (Other), by State of California, ex rel. XAVIER BECERRA, in his official capacity as Attorney General of the State of California. (Attachments: # 1 Declaration)(Sherman, Lee) (Filed on 12/7/2017) (Entered: 12/07/2017)
68 CLERK'S NOTICE OF CHANGE IN HEARING TIME − Hearing as to 26 Amended MOTION for Preliminary Injunction reset for 12/13/2017 03:00 PM in Courtroom 4, 17th Floor, San Francisco before Judge William H. Orrick. (This is a text−only entry generated by the court. There is no document associated with this entry.) (jmdS, COURT STAFF) (Filed on 12/11/2017) (Entered: 12/11/2017)

Case: 3:17-cv-4701 As of: 03/09/2020 07:39 AM PDT 16 of 24

12/11/2017 12/11/2017 12/13/2017 12/14/2017 12/15/2017
12/15/2017 12/19/2017
01/10/2018 01/10/2018 01/16/2018

Reset Deadlines as to 26 Amended MOTION for Preliminary Injunction. Motion Hearing reset for 12/13/2017 03:00 PM in Courtroom 4, 17th Floor, San Francisco before Judge William H. Orrick. (jmdS, COURT STAFF) (Filed on 12/11/2017) (Entered: 12/11/2017)
69 RESPONSE to re 67 Response ( Non Motion ) Reply to Plaintiff's Response to Notice of Administrative Action by Alan R Hanson, Jefferson Beauregard Sessions, III, United States Department of Justice. (Simpson, W.) (Filed on 12/11/2017) (Entered: 12/11/2017)
73 Minute Entry for proceedings held before Judge William H. Orrick: Motion Hearing held on 12/13/2017 re 17 MOTION for Preliminary Injunction. Total Time in Court: 1 hour, 5 minutes. Court Reporter: Katherine Sullivan. Plaintiff Attorneys: Lee I. Sherman, Lisa Ehrlich, and Sarah E. Belton. Defendant Attorneys: Chad Readler, W. Scott Simpson, and Steven J. Saltiel. (jmdS, COURT STAFF) (Date Filed: 12/13/2017) (Entered: 12/18/2017)
70 TRANSCRIPT ORDER for proceedings held on 12/13/2017 before Judge William H. Orrick by State of California, ex rel. XAVIER BECERRA, in his official capacity as Attorney General of the State of California, for Court Reporter Katherine Powell. (Sherman, Lee) (Filed on 12/14/2017) (Entered: 12/14/2017)
71 Transcript of Proceedings held on 12/13/17, before Judge William H. Orrick. Court Reporter/Transcriber Katherine Powell Sullivan, Katherine_Sullivan@cand.uscourts.gov. 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 70 Transcript Order, ) Redaction Request due 1/5/2018. Redacted Transcript Deadline set for 1/16/2018. Release of Transcript Restriction set for 3/15/2018. (Related documents(s) 70 ) (Sullivan, Katherine) (Filed on 12/15/2017) (Entered: 12/15/2017)
72 TRANSCRIPT ORDER for proceedings held on 12/13/2017 before Judge William H. Orrick by Alan R Hanson, Jefferson Beauregard Sessions, III, United States Department of Justice, for Court Reporter Katherine Powell. (Simpson, W.) (Filed on 12/15/2017) (Entered: 12/15/2017)
74 Transcript of Proceedings held on November 21, 2017, before Judge William H. Orrick. Court Reporter/Transcriber Victoria L. Valine, telephone number victoriavalinecsr@gmail.com. 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 (58 in 3:17−cv−04642−WHO) Transcript Order, (59 in 3:17−cv−04701−WHO) Transcript Order, ) Redaction Request due 1/9/2018. Redacted Transcript Deadline set for 1/19/2018. Release of Transcript Restriction set for 3/19/2018. (vlv, COURT STAFF) (Filed on 12/19/2017) (Entered: 12/19/2017)
75 Joint ADMINISTRATIVE MOTION Leave to Exceed Otherwise Applicable Page Limits filed by Alan R Hanson, Jefferson Beauregard Sessions, III, United States Department of Justice. Responses due by 1/16/2018. (Attachments: # 1 Proposed Order)(Konkoly, Antonia) (Filed on 1/10/2018) (Entered: 01/10/2018)
76 ORDER GRANTING THE PARTIES' JOINT ADMINISTRATIVE MOTION FOR LEAVE TO EXCEED OTHERWISE APPLICABLE PAGE LIMITS by Judge William H. Orrick granting 75 Administrative Motion for Leave to Exceed Page Limits. (jmdS, COURT STAFF) (Filed on 1/10/2018) (Entered: 01/10/2018)
77 MOTION to Dismiss filed by Alan R Hanson, Jefferson Beauregard Sessions, III, United States Department of Justice. Motion Hearing set for 2/28/2018 02:00 PM in Courtroom 2, 17th Floor, San Francisco before Judge William H. Orrick. Responses due by 1/30/2018. Replies due by 2/6/2018. (Attachments: # 1 Request for Judicial Notice, # 2 Proposed Order)(Simpson, W.) (Filed on 1/16/2018) (Entered: 01/16/2018)

Case: 3:17-cv-4701 As of: 03/09/2020 07:39 AM PDT 17 of 24

01/18/2018 01/18/2018 01/30/2018
02/05/2018 02/05/2018 02/06/2018 02/28/2018
03/01/2018 03/02/2018
03/05/2018 03/05/2018 03/05/2018

78 NOTICE by State of California, ex rel. XAVIER BECERRA, in his official capacity as Attorney General of the State of California Notice of Effective Date of California Values Act and Amended Trust Act (Sherman, Lee) (Filed on 1/18/2018) (Entered: 01/18/2018)
79 Request for Judicial Notice re 26 Amended MOTION for Preliminary Injunction Second Supplemental Request for Judicial Notice in Support of State of California's Motion for Preliminary Injunction filed byState of California, ex rel. XAVIER BECERRA, in his official capacity as Attorney General of the State of California. (Related document(s) 26 ) (Sherman, Lee) (Filed on 1/18/2018) (Entered: 01/18/2018)
80 OPPOSITION/RESPONSE (re 77 MOTION to Dismiss ) PLAINTIFF STATE OF CALIFORNIAS OPPOSITION TO DEFENDANTS MOTION TO DISMISS filed byState of California, ex rel. XAVIER BECERRA, in his official capacity as Attorney General of the State of California. (Attachments: # 1 REQUEST FOR JUDICIAL NOTICE IN SUPPORT OF STATE OF CALIFORNIAS OPPOSITION TO DEFENDANTS MOTION TO DISMISS, # 2 DECLARATION OF LEE SHERMAN IN SUPPORT OF OPPOSITION TO DEFENDANTS' MOTION TO DISMISS)(Sherman, Lee) (Filed on 1/30/2018) (Entered: 01/30/2018)
81 Consent ADMINISTRATIVE MOTION Leave to Exceed Otherwise Applicable Page Limits filed by Alan R Hanson, Jefferson Beauregard Sessions, III, United States Department of Justice. Responses due by 2/9/2018. (Attachments: # 1 Proposed Order)(Konkoly, Antonia) (Filed on 2/5/2018) (Entered: 02/05/2018)
82 Order by Judge William H. Orrick granting 81 Administrative Motion to Exceed Page Limits. (jmdS, COURT STAFF) (Filed on 2/5/2018) (Entered: 02/05/2018)
83 REPLY (re 77 MOTION to Dismiss ) filed byAlan R Hanson, Jefferson Beauregard Sessions, III, United States Department of Justice. (Konkoly, Antonia) (Filed on 2/6/2018) (Entered: 02/06/2018)
85 Minute Entry for proceedings held before Judge William H. Orrick: Motion Hearing held on 2/28/2018 re: motions to dismiss. Motions taken under submission; written order to follow. Case Management Statement due by 3/20/2018. Case Management Conference set for 3/27/2018 02:00 PM in San Francisco, Courtroom 02, 17th Floor. Total Time in Court: 1 hour. Court Reporter: Lydia Zinn. (jmdS, COURT STAFF) (Date Filed: 2/28/2018) (Entered: 03/01/2018)
84 TRANSCRIPT ORDER for proceedings held on 02/28/2018 before Judge William H. Orrick by State of California, ex rel. XAVIER BECERRA, in his official capacity as Attorney General of the State of California, for Court Reporter Lydia Zinn. (Sherman, Lee) (Filed on 3/1/2018) (Entered: 03/01/2018)
86 Transcript of Proceedings held on 2/28/2018, before Judge William H. Orrick. Court Reporter/Transcriber Lydia Zinn, telephone number (415) 531−6587. 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 (84 in 3:17−cv−04701−WHO) Transcript Order, (75 in 3:17−cv−04642−WHO) Transcript Order, (74 in 3:17−cv−04642−WHO) Transcript Order ) Redacted Transcript Deadline set for 4/2/2018. Release of Transcript Restriction set for 5/31/2018. (zinnlr62S, COURT STAFF) (Filed on 3/2/2018) (Entered: 03/02/2018)
87 TRANSCRIPT ORDER for proceedings held on 2/28/2018 before Judge William H. Orrick by Alan R Hanson, Jefferson Beauregard Sessions, III, United States Department of Justice, for Court Reporter Lydia Zinn. (Simpson, W.) (Filed on 3/5/2018) (Entered: 03/05/2018)
88 ORDER DENYING 77 MOTION TO DISMISS by Judge William H. Orrick. (jmdS, COURT STAFF) (Filed on 3/5/2018) (Entered: 03/05/2018)
89 Order by Judge William H. Orrick denying 26 Amended Motion for Preliminary Injunction. (jmdS, COURT STAFF) (Filed on 3/5/2018) (Entered: 03/05/2018)

Case: 3:17-cv-4701 As of: 03/09/2020 07:39 AM PDT 18 of 24

03/13/2018
03/13/2018 03/14/2018 03/14/2018 03/15/2018 03/20/2018 03/23/2018 03/23/2018
03/27/2018 03/27/2018 03/29/2018 04/04/2018

90 ERRONEOUSLY E−FILED: PLEASE SEE DOCKET NUMBER 91 FOR THE CORRECTION First MOTION for Reconsideration re 89 Order on Motion for Preliminary Injunction PLAINTIFF STATE OF CALIFORNIAS NOTICE OF MOTION AND MOTION FOR RECONSIDERATION OF THE COURTS MARCH 5, 2018 ORDER ON THE AMENDED MOTION FOR PRELIMINARY INJUNCTION filed by State of California, ex rel. XAVIER BECERRA, in his official capacity as Attorney General of the State of California. (Attachments: # 1 Motion for Reconsideration and Memorandum of Authorities, # 2 RJN with all Exhibits, # 3 Proposed Order Proposed Order)(Sherman, Lee) (Filed on 3/13/2018) Modified on 3/14/2018 (aaaS, COURT STAFF). (Entered: 03/13/2018)
91 MOTION for Leave to File a Motion for Reconsideration filed by State of California, ex rel. XAVIER BECERRA, in his official capacity as Attorney General of the State of California. (Attachments: # 1 Motion for Reconsideration and Memorandum of Authorities, # 2 RJN with exhibits A−D, # 3 Proposed Order)(Sherman, Lee) (Filed on 3/13/2018) (Entered: 03/13/2018)
92 MOTION for Extension of Time to File Answer re 11 Amended Complaint, filed by Alan R Hanson, Jefferson Beauregard Sessions, III, United States Department of Justice. (Attachments: # 1 Declaration of W. Scott Simpson, # 2 Proposed Order)(Simpson, W.) (Filed on 3/14/2018) (Entered: 03/14/2018)
93 OPPOSITION/RESPONSE (re 92 MOTION for Extension of Time to File Answer re 11 Amended Complaint, ) Opposition to Motion to Extend filed byState of California, ex rel. XAVIER BECERRA, in his official capacity as Attorney General of the State of California. (Attachments: # 1 Declaration)(Sherman, Lee) (Filed on 3/14/2018) (Entered: 03/14/2018)
94 ORDER GRANTING REQUEST FOR ENLARGEMENT OF TIME by Judge William H. Orrick granting (79) Motion for Extension of Time to Answer in case 3:17−cv−04642−WHO and (92) Motion for Extension of Time to Answer in case 3:17−cv−04701−WHO. (jmdS, COURT STAFF) (Filed on 3/15/2018) (Entered: 03/15/2018)
95 CASE MANAGEMENT STATEMENT (Supplemental) filed by Alan R Hanson, Jefferson Beauregard Sessions, III, United States Department of Justice. (Simpson, W.) (Filed on 3/20/2018) (Entered: 03/20/2018)
96 NOTICE by Alan R Hanson, Jefferson Beauregard Sessions, III, United States Department of Justice (Notice of Filing of Administrative Record) (Attachments: # 1 Index of Administrative Record, # 2 AR−00001 − AR−00508, # 3 AR−00509 − AR−00616, # 4 AR−00617 − AR−01037)(Simpson, W.) (Filed on 3/23/2018) (Entered: 03/23/2018)
97 ORDER REGARDING CASE MANAGEMENT CONFERENCE − Case Management Conference continued to 4/10/2018 02:00 PM in San Francisco, Courtroom 02, 17th Floor. Signed by Judge William H. Orrick on 03/23/2018. If the parties are able to agree on a briefing schedule, given the guidance of this order, they should submit a stipulated schedule prior to April 3, 2018; and, if it is acceptable, the Court will vacate the CMC. (jmdS, COURT STAFF) (Filed on 3/23/2018) (Entered: 03/23/2018)
98 STIPULATION WITH PROPOSED ORDER re 97 Order,, Set Deadlines/Hearings, filed by Alan R Hanson, Jefferson Beauregard Sessions, III, United States Department of Justice. (Simpson, W.) (Filed on 3/27/2018) (Entered: 03/27/2018)
99 STIPULATION WITH PROPOSED ORDER re 97 Order,, Set Deadlines/Hearings, (CORRECTED) filed by Alan R Hanson, Jefferson Beauregard Sessions, III, United States Department of Justice. (Simpson, W.) (Filed on 3/27/2018) (Entered: 03/27/2018)
100 ORDER REGARDING SCHEDULE by Judge William H. Orrick granting (86) Stipulation in case 3:17−cv−04642−WHO. Associated Cases: 3:17−cv−04642−WHO, 3:17−cv−04701−WHO. (jmdS, COURT STAFF) (Filed on 3/29/2018) (Entered: 03/29/2018)
101 ANSWER to 11 Amended Complaint; by Alan R Hanson, Jefferson Beauregard Sessions, III, United States Department of Justice. (Konkoly, Antonia) (Filed on

Case: 3:17-cv-4701 As of: 03/09/2020 07:39 AM PDT 19 of 24

04/24/2018 05/09/2018 05/14/2018 05/14/2018 05/25/2018 05/25/2018
06/04/2018 06/19/2018 06/21/2018
06/22/2018
06/22/2018 06/25/2018 06/29/2018 07/03/2018

4/4/2018) Modified on 4/5/2018 (aaaS, COURT STAFF). (Entered: 04/04/2018)
102 ORDER DENYING 91 REQUEST FOR LEAVE TO FILE MOTION FOR RECONSIDERATION by Judge William H. Orrick. (jmdS, COURT STAFF) (Filed on 4/24/2018) (Entered: 04/24/2018)
103 STIPULATION WITH PROPOSED ORDER (Protective and 502(d) Order) filed by Alan R Hanson, Jefferson Beauregard Sessions, III, United States Department of Justice. (Simpson, W.) (Filed on 5/9/2018) (Entered: 05/09/2018)
104 NOTICE of Appearance by Daniel D. Mauler (Mauler, Daniel) (Filed on 5/14/2018) (Entered: 05/14/2018)
105 PROTECTIVE AND 502(D) ORDER by Judge William H. Orrick granting (89) Stipulation in case 3:17−cv−04642−WHO. Associated Cases: 3:17−cv−04642−WHO, 3:17−cv−04701−WHO (jmdS, COURT STAFF) (Filed on 5/14/2018) (Entered: 05/14/2018)
106 STIPULATION WITH PROPOSED ORDER re 100 Order on Stipulation to Modify Upcoming Discovery and Briefing Deadlines filed by Alan R Hanson, Jefferson Beauregard Sessions, III, United States Department of Justice. (Simpson, W.) (Filed on 5/25/2018) (Entered: 05/25/2018)
107 ORDER TO MODIFY UPCOMING DISCOVERY AND BRIEFING DEADLINES by Judge William H. Orrick granting (92) Stipulation in case 3:17−cv−04642−WHO. Associated Cases: 3:17−cv−04642−WHO, 3:17−cv−04701−WHO. (jmdS, COURT STAFF) (Filed on 5/25/2018) (Entered: 05/25/2018)
108 ORDER GRANTING 46 , 47 , 48 , 52 , 53 , 54 , 55 , 56 ADMINSTRATIVE MOTIONS FOR LEAVE TO FILE AMICUS CURIAE BRIEF. (jmdS, COURT STAFF) (Filed on 6/4/2018) (Entered: 06/04/2018)
109 NOTICE of Change of Address by W. Scott Simpson (Simpson, W.) (Filed on 6/19/2018) (Entered: 06/19/2018)
110 STIPULATION WITH PROPOSED ORDER Stipulation and [Proposed] Order to Modify Deadline to Raise Discovery Disputes Related to Defendants' Supplemental Document Production filed by State of California, ex rel. XAVIER BECERRA, in his official capacity as Attorney General of the State of California. (Sherman, Lee) (Filed on 6/21/2018) (Entered: 06/21/2018)
111 ORDER TO MODIFY DEADLINE TO RAISE DISCOVERY DISPUTES RELATED TO DEFENDANTS' SUPPLEMENTAL DOCUMENT PRODUCTION by Judge William H. Orrick granting (95) Stipulation in case 3:17−cv−04642−WHO. Associated Cases: 3:17−cv−04642−WHO, 3:17−cv−04701−WHO. (jmdS, COURT STAFF) (Filed on 6/22/2018) (Entered: 06/22/2018)
112 STIPULATION WITH PROPOSED ORDER re 107 Order on Stipulation (to Modify Deadline to Raise Discovery Disputes Regarding Plaintiff's Designation of Expert Witness) filed by Alan R Hanson, Jefferson Beauregard Sessions, III, United States Department of Justice. (Simpson, W.) (Filed on 6/22/2018) (Entered: 06/22/2018)
113 ORDER TO MODIFY DEADLINE TO RAISE DISCOVERY DISPUTES REGARDING PLAINTIFF'S DESIGNATION OF EXPERT WITNESS by Judge William H. Orrick granting 112 Stipulation. (jmdS, COURT STAFF) (Filed on 6/25/2018) (Entered: 06/25/2018)
114 Letter from Counsel for the Parties Re: Discovery Dispute . (Attachments: # 1 Plaintiff's Rule 26(a)(2) Disclosures)(Simpson, W.) (Filed on 6/29/2018) (Entered: 06/29/2018)
115 ORDER by Judge William H. Orrick granting (97) Stipulation in case 3:17−cv−04642−WHO. (wholc3, COURT STAFF) (Filed on 7/3/2018) (Entered: 07/03/2018)

Case: 3:17-cv-4701 As of: 03/09/2020 07:39 AM PDT 20 of 24

07/09/2018
07/09/2018
07/09/2018
07/09/2018 07/11/2018 07/16/2018 07/16/2018 07/20/2018 07/31/2018

116 MOTION for Summary Judgment MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT filed by State of California, ex rel. XAVIER BECERRA, in his official capacity as Attorney General of the State of California. Motion Hearing set for 9/5/2018 02:00 PM in San Francisco, Courtroom 02, 17th Floor before Judge William H. Orrick. Responses due by 7/23/2018. Replies due by 7/30/2018. (Attachments: # 1 Proposed Order GRANTING PLAINTIFF STATE OF CALIFORNIA'S MOTION FOR SUMMARY JUDGMENT, # 2 Declaration PLAINTIFF'S MOTION FOR SUMMARY JUDGMENT APPENDIX A, # 3 Exhibit 1 − 9 TO PLAINTIFF'S MOTION FOR SUMMARY JUDGMENT APPENDIX A, # 4 Exhibit 10 − 13 TO PLAINTIFF'S MOTION FOR SUMMARY JUDGMENT APPENDIX A, # 5 Declaration OF LEE SHERMAN IN SUPPORT OF PLAINTIFF'S MOTION FOR SUMMARY JUDGMENT, # 6 Exhibit A − G TO DECLARATION OF LEE SHERMAN IN SUPPORT OF PLAINTIFF'S MOTION FOR SUMMARY JUDGMENT)(Sherman, Lee) (Filed on 7/9/2018) (Entered: 07/09/2018)
117 Request for Judicial Notice re 116 MOTION for Summary Judgment MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT filed byState of California, ex rel. XAVIER BECERRA, in his official capacity as Attorney General of the State of California. (Attachments: # 1 Exhibit 1 − 17 TO REQUEST FOR JUDICIAL NOTICE IN SUPPORT OF STATE OF CALIFORNIA'S MOTION FOR SUMMARY JUDGMENT, # 2 Exhibit 18 − 34 TO REQUEST FOR JUDICIAL NOTICE IN SUPPORT OF CALIFORNIA'S MOTION FOR SUMMARY JUDGMENT, # 3 Exhibit 35 − 51 TO REQUEST FOR JUDICIAL NOTICE IN SUPPORT OF CALIFORNIA'S MOTION FOR SUMMARY JUDGMENT)(Related document(s) 116 ) (Sherman, Lee) (Filed on 7/9/2018) (Entered: 07/09/2018)
118 Administrative Motion to File Under Seal filed by State of California, ex rel. XAVIER BECERRA, in his official capacity as Attorney General of the State of California. (Attachments: # 1 Declaration OF LISA C. EHRLICH IN SUPPORT OF PLAINTIFF STATE OF CALIFORNIA'S ADMINISTRATIVE MOTION TO FILE UNDER SEAL, # 2 Proposed Order GRANTING PLAINTIFF STATE OF CALIFORNIA'S ADMINISTRATIVE MOTION TO FILE UNDER SEAL, # 3 Declaration REDACTED VERSION OF DECLARATION OF CHRISTOPHER CALIGIURI IN SUPPORT OF PLAINTIFF'S MOTION FOR SUMMARY JUDGMENT, # 4 Declaration UNREDACTED VERSION OF DECLARATION OF CHRISTOPHER CALIGIURI IN SUPPORT OF PLAINTIFF'S MOTION FOR SUMMARY JUDGMENT)(Ehrlich, Lisa) (Filed on 7/9/2018) (Entered: 07/09/2018)
119 ORDER ON 114 JOINT DISCOVERY DISPUTE LETTER. Signed by Judge William H. Orrick on 07/09/2018. (jmdS, COURT STAFF) (Filed on 7/9/2018) (Entered: 07/09/2018)
120 NOTICE of Change In Counsel by Jamison Davies (Davies, Jamison) (Filed on 7/11/2018) (Entered: 07/11/2018)
121 STIPULATION WITH PROPOSED ORDER Regarding Use of Deposition Transcript from United States v. California filed by Alan R Hanson, Jefferson Beauregard Sessions, III, United States Department of Justice. (Simpson, W.) (Filed on 7/16/2018) (Entered: 07/16/2018)
122 ORDER REGARDING USE OF DEPOSITION TRANSCRIPT by Judge William H. Orrick granting 121 Stipulation. (jmdS, COURT STAFF) (Filed on 7/16/2018) (Entered: 07/16/2018)
123 ADMINISTRATIVE MOTION to Strike Certain Exhibits re 117 Request for Judicial Notice,, filed by Alan R Hanson, Jefferson Beauregard Sessions, III, United States Department of Justice. Responses due by 7/24/2018. (Attachments: # 1 Declaration of W. Scott Simpson, # 2 Proposed Order)(Simpson, W.) (Filed on 7/20/2018) (Entered: 07/20/2018)
124 MOTION for Summary Judgment and MEMORANDUM IN SUPPORT THEREOF AND IN OPPOSITION TO PLAINTIFF'S MOTION FOR SUMMARY JUDGMENT filed by Alan R Hanson, Jefferson Beauregard Sessions, III, United States Department of Justice. Motion Hearing set for 9/5/2018 02:00 PM in San Francisco, Courtroom 02, 17th Floor before Judge William H. Orrick. Responses due by 8/14/2018. Replies due by 8/20/2018. (Attachments: # 1 Attachment 1 −Madrigal Decl, # 2 Attachment 2 − Atsatt Decl, # 3 Attachment 3 − Dorr Decl, # 4 Attachment 4 − Konkoly Decl, # 5

Case: 3:17-cv-4701 As of: 03/09/2020 07:39 AM PDT 21 of 24

07/31/2018 08/13/2018 08/13/2018 08/14/2018
08/22/2018
08/22/2018 08/22/2018 08/22/2018 09/05/2018

Attachment 5 − Homan Decl, # 6 Attachment 3 − Wong Depo Tr.)(Konkoly, Antonia) (Filed on 7/31/2018) (Entered: 07/31/2018)
125 Request for Judicial Notice filed byAlan R Hanson, Jefferson Beauregard Sessions, III, United States Department of Justice. (Attachments: # 1 Exhibit A, # 2 Exhibit B, # 3 Exhibit C, # 4 Exhibit D, # 5 Exhibit E, # 6 Exhibit F, # 7 Exhibit G)(Konkoly, Antonia) (Filed on 7/31/2018) (Entered: 07/31/2018)
126 MOTION for Extension of Time to File Response/Reply as to 124 MOTION for Summary Judgment and MEMORANDUM IN SUPPORT THEREOF AND IN OPPOSITION TO PLAINTIFF'S MOTION FOR SUMMARY JUDGMENT filed by Jefferson Beauregard Sessions, III, United States Department of Justice, Laura L. Rogers. (Attachments: # 1 Declaration of W. Scott Simpson, # 2 Proposed Order)(Simpson, W.) (Filed on 8/13/2018) (Entered: 08/13/2018)
127 Order by Judge William H. Orrick granting (116) Motion for Extension of Time to File Reply re (113 in 3:17−cv−04642−WHO) continuing deadline to file reply to Motions for Summary Judgment by 8/22/2018. Associated Cases: 3:17−cv−04642−WHO, 3:17−cv−04701−WHO. (jmdS, COURT STAFF) (Filed on 8/13/2018) (Entered: 08/13/2018)
128 REPLY (re 116 MOTION for Summary Judgment MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT, 124 MOTION for Summary Judgment and MEMORANDUM IN SUPPORT THEREOF AND IN OPPOSITION TO PLAINTIFF'S MOTION FOR SUMMARY JUDGMENT ) filed byState of California, ex rel. XAVIER BECERRA, in his official capacity as Attorney General of the State of California. (Attachments: # 1 Declaration OF LISA C. EHRLICH IN SUPPORT OF STATE OF CALIFORNIA'S OPPOSITION TO DEFENDANTS' MOTION FOR SUMMARY JUDGMENT AND REPLY IN SUPPORT OF CALIFORNIA'S MOTION FOR SUMMARY JUDGMENT, # 2 SUPPLEMENTAL REQUEST FOR JUDICIAL NOTICE IN SUPPORT OF STATE OF CALIFORNIA'S OPPOSITION TO DEFENDANTS' MOTION FOR SUMMARY JUDGMENT AND REPLY IN SUPPORT OF CALIFORNIA'S MOTION FOR SUMMARY JUDGMENT)(Ehrlich, Lisa) (Filed on 8/14/2018) (Entered: 08/14/2018)
129 Consent ADMINISTRATIVE MOTION Leave To File Amici Curiae Brief of Members of Congress filed by Kamala Harris, Richard Blumenthal, Cory Booker, Richard J. Durbin, Mazie K. Hirono, Patrick J. Leahy, Robert Menendez, Sheldon Whitehouse, Ron Wyden, Zoe Lofgren, Nancy Pelosi, Pete Aguilar, Nanette Diaz Barragan, Karen Bass, Judy Chu, Mark DeSaulnier, Anna G. Eshoo, Jimmy Gomez, Jared Huffman, Pramila Jayapal, Barbara Lee, Ted W. Lieu, Alan Lowenthal, Doris O. Matsui, Jerry McNerney, Grace F. Napolitano, Lucille Roybal−Allard, Eric Swalwell, Mike Thompson, Norma Torres. Responses due by 8/27/2018. (Attachments: # 1 Exhibit Proposed Amici Curiae Brief, # 2 Proposed Order)(Wydra, Elizabeth) (Filed on 8/22/2018) (Entered: 08/22/2018)
130 Consent ADMINISTRATIVE MOTION Leave to File Brief Amici Curiae filed by Current and Former Prosecutors and Law Enforcement Leaders. Responses due by 8/27/2018. (Attachments: # 1 Exhibit Proposed Brief Amici Curiae, # 2 Proposed Order)(Piers, Matthew) (Filed on 8/22/2018) (Entered: 08/22/2018)
131 REPLY (re 124 MOTION for Summary Judgment and MEMORANDUM IN SUPPORT THEREOF AND IN OPPOSITION TO PLAINTIFF'S MOTION FOR SUMMARY JUDGMENT ) filed byLaura L. Rogers, Jefferson Beauregard Sessions, III, United States Department of Justice. (Konkoly, Antonia) (Filed on 8/22/2018) (Entered: 08/22/2018)
132 Consent ADMINISTRATIVE MOTION for leave to file amicus brief filed by State of New York, State of Connecticut, State of Delaware, State of Illinois, State of Iowa, State of Maryland, Commonwealth of Massachusetts, State of New Jersey, State of New Mexico, State of Oregon, State of Rhode Island, State of Washington, District of Columbia. Responses due by 8/27/2018. (Attachments: # 1 Exhibit Proposed amicus brief, # 2 Exhibit Appendum to proposed brief with legislative history materials, # 3 Proposed Order)(Fang, Linda) (Filed on 8/22/2018) (Entered: 08/22/2018)
134 Minute Entry for proceedings held before Judge William H. Orrick: Motion Hearing held on 9/5/2018 regarding motions for summary judgment. Motions

Case: 3:17-cv-4701 As of: 03/09/2020 07:39 AM PDT 22 of 24

09/06/2018 09/10/2018 09/14/2018
10/05/2018 10/05/2018 10/12/2018 10/15/2018 10/15/2018 10/16/2018 10/18/2018 10/18/2018

taken under submission; written order to follow. Total Time in Court: 59 minutes. Court Reporter: Debra Pas. (jmdS, COURT STAFF) (Date Filed: 9/5/2018) (Entered: 09/07/2018)
133 TRANSCRIPT ORDER for proceedings held on 09/05/2018 before Judge William H. Orrick by State of California, ex rel. XAVIER BECERRA, in his official capacity as Attorney General of the State of California, for Court Reporter Debra Pas. (Sherman, Lee) (Filed on 9/6/2018) (Entered: 09/06/2018)
135 RELATED CASE ORDER by Judge William H. Orrick granting (216) Administrative Motion in case 3:17−cv−00485−WHO (Associated Cases: 3:17−cv−00485−WHO, 3:17−cv−04642−WHO, 3:17−cv−04701−WHO). Case Nos. 3:18cv5169−KAW and 3:18cv5146−JSC are found to be related. (jmdS, COURT STAFF) (Filed on 9/10/2018) (Entered: 09/10/2018)
136 Transcript of Proceedings held on 9−5−2018, before Judge William H. Orrick. Court Reporter/Transcriber Debra L. Pas, CRR, telephone number (415) 431−1477/Email: Debra_Pas@cand.uscourts.gov. 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 133 Transcript Order, ) Release of Transcript Restriction set for 12/13/2018. (Related documents(s) 133 ) (Pas, Debra) (Filed on 9/14/2018) (Entered: 09/14/2018)
137 ORDER REGARDING MOTIONS FOR SUMMARY JUDGMENT by Judge William H. Orrick. alifornia and San Franciscos motions for summary judgment are GRANTED and the DOJ's motions for summary judgment are DENIED. (jmdS, COURT STAFF) (Filed on 10/5/2018) (Entered: 10/05/2018)
138 JUDGMENT. Signed by Judge William H. Orrick on 10/05/2018. (jmdS, COURT STAFF) (Filed on 10/5/2018) (Entered: 10/05/2018)
139 MOTION to Alter Judgment of October 5, 2018 filed by Jefferson Beauregard Sessions, III, United States Department of Justice, Matt M. Dummermuth, Phil E. Keith. Motion Hearing set for 11/28/2018 02:00 PM in San Francisco, Courtroom 02, 17th Floor before Judge William H. Orrick. Responses due by 10/26/2018. Replies due by 11/2/2018. (Attachments: # 1 Proposed Order)(Simpson, W.) (Filed on 10/12/2018) (Entered: 10/12/2018)
140 Consent ADMINISTRATIVE MOTION re 139 MOTION to Alter Judgment of October 5, 2018 filed by State of California, ex rel. XAVIER BECERRA, in his official capacity as Attorney General of the State of California. Responses due by 10/19/2018. (Attachments: # 1 Declaration, # 2 Proposed Order)(Sherman, Lee) (Filed on 10/15/2018) (Entered: 10/15/2018)
141 ORDER granting 140 Consent ADMINISTRATIVE MOTION to advance deadlines re: 139 MOTION to Alter Judgment of October 5, 2018. Response due by 10/18/2018. Reply due by 10/23/2018. Motion Hearing specially set for 10/26/2018 10:00 AM in San Francisco, Courtroom 02, 17th Floor before Judge William H. Orrick. Signed by Judge William H. Orrick on 10/15/2018. (jmdS, COURT STAFF) (Filed on 10/15/2018) (Entered: 10/15/2018)
142 NOTICE of Appearance by W. Scott Simpson (Additional Counsel for Defendants) (Simpson, W.) (Filed on 10/16/2018) (Entered: 10/16/2018)
143 OPPOSITION/RESPONSE (re 139 MOTION to Alter Judgment of October 5, 2018 ) filed byState of California, ex rel. XAVIER BECERRA, in his official capacity as Attorney General of the State of California. (Attachments: # 1 Declaration of Mary Jolls and Exhibit A, # 2 Declaration of Leo Chyi, # 3 Declaration of Karen Fletcher, # 4 Declaration of Lee Sherman and Exhibit A)(Sherman, Lee) (Filed on 10/18/2018) (Entered: 10/18/2018)
144 Request for Judicial Notice re 143 Opposition/Response to Motion, filed byState of California, ex rel. XAVIER BECERRA, in his official capacity as Attorney General of the State of California. (Attachments: # 1 Exhibit A−K)(Related document(s) 143 )

Case: 3:17-cv-4701 As of: 03/09/2020 07:39 AM PDT 23 of 24

10/23/2018 10/26/2018 10/26/2018
10/29/2018 10/29/2018
10/30/2018 11/02/2018 11/09/2018 11/20/2018 11/20/2018 11/28/2018
11/28/2018

(Sherman, Lee) (Filed on 10/18/2018) (Entered: 10/18/2018)
145 REPLY (re 139 MOTION to Alter Judgment of October 5, 2018 ) filed byMatt M. Dummermuth, Phil E. Keith, Jefferson Beauregard Sessions, III, United States Department of Justice. (Attachments: # 1 Declaration of Tracey J. Trautman, # 2 Request for Judicial Notice)(Simpson, W.) (Filed on 10/23/2018) (Entered: 10/23/2018)
146 TRANSCRIPT ORDER for proceedings held on 10/26/2018 before Judge William H. Orrick by Tara M. Steeley, for Court Reporter Katherine Sullivan. (Steeley, Tara) (Filed on 10/26/2018) (Entered: 10/26/2018)
149 Minute Entry for proceedings held before Judge William H. Orrick: Motion Hearing held on 10/26/2018 re 139 MOTION to Alter Judgment. Supplemental filings permitted as specified in attached document image. Total Time in Court: 29 minutes. Court Reporter: Katherine Sullivan. Plaintiff Attorney: Lee I. Sherman. Defendant Attorney: James H. Percival and Chad Readler. (jmdS, COURT STAFF) (Date Filed: 10/26/2018) (Entered: 10/29/2018)
147 TRANSCRIPT ORDER for proceedings held on 10/26/2018 before Judge William H. Orrick by State of California, ex rel. XAVIER BECERRA, in his official capacity as Attorney General of the State of California, for Court Reporter Katherine Powell. (Sherman, Lee) (Filed on 10/29/2018) (Entered: 10/29/2018)
148 Transcript of Proceedings held on 10/26/18, before Judge William H. Orrick. Court Reporter/Transcriber Katherine Powell Sullivan, Katherine_Sullivan@cand.uscourts.gov. 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 146 Transcript Order, 147 Transcript Order, ) Redaction Request due 11/19/2018. Redacted Transcript Deadline set for 11/29/2018. Release of Transcript Restriction set for 1/28/2019. (Related documents(s) 146 , 147 ) (Sullivan, Katherine) (Filed on 10/29/2018) (Entered: 10/29/2018)
150 TRANSCRIPT ORDER for proceedings held on 10/26/2018 before Judge William H. Orrick by Matt M. Dummermuth, Jefferson Beauregard Sessions, III, United States Department of Justice, for Court Reporter Katherine Sullivan. (Simpson, W.) (Filed on 10/30/2018) (Entered: 10/30/2018)
151 Letter from Defendants . (Simpson, W.) (Filed on 11/2/2018) (Entered: 11/02/2018)
152 RESPONSE to re 151 Letter by State of California, ex rel. XAVIER BECERRA, in his official capacity as Attorney General of the State of California. (Attachments: # 1 Proposed Order)(Sherman, Lee) (Filed on 11/9/2018) (Entered: 11/09/2018)
153 ORDER ON DEFENDANTS' 139 MOTION TO ALTER OR AMEND JUDGMENT AND ORDER OF OCTOBER 5, 2018 by Judge William H. Orrick. (jmdS, COURT STAFF) (Filed on 11/20/2018) (Entered: 11/20/2018)
154 AMENDED JUDGMENT AND ORDER re 138 Judgment. Signed by Judge William H. Orrick on 11/20/2018. (jmdS, COURT STAFF) (Filed on 11/20/2018) (Entered: 11/20/2018)
155 MOTION to Enforce Judgment filed by State of California, ex rel. XAVIER BECERRA, in his official capacity as Attorney General of the State of California. Motion Hearing set for 12/21/2018 10:00 AM in San Francisco, Courtroom 02, 17th Floor before Judge William H. Orrick. Responses due by 12/7/2018. Replies due by 12/14/2018. (Attachments: # 1 Proposed Order, # 2 Declaration of Gina Buccieri−Harrington and Exs. A−C, # 3 Declaration of Lee Sherman and Exs. A−B)(Sherman, Lee) (Filed on 11/28/2018) (Entered: 11/28/2018)
156 Request for Judicial Notice re 155 MOTION to Enforce Judgment and Exhibits A−W filed byState of California, ex rel. XAVIER BECERRA, in his official capacity as Attorney General of the State of California. (Related document(s) 155 ) (Sherman, Lee) (Filed on 11/28/2018) (Entered: 11/28/2018)

Case: 3:17-cv-4701 As of: 03/09/2020 07:39 AM PDT 24 of 24

12/03/2018 12/07/2018 12/07/2018 12/14/2018 12/17/2018 12/19/2018 12/21/2018
12/27/2018 01/03/2019
02/04/2019 02/21/2019

157 NOTICE OF APPEAL to the 9th Circuit Court of Appeals filed by Matt M. Dummermuth, United States Department of Justice, Matthew G. Whitaker. Appeal of Order 154 (Appeal fee FEE WAIVED.) (Simpson, W.) (Filed on 12/3/2018) (Additional attachment(s) added on 12/7/2018: # 1 USCA NUMBER 18−17311) (aaaS, COURT STAFF). (Entered: 12/03/2018)
158 USCA Case Number 18−17311 for 157 Notice of Appeal filed by United States Department of Justice, Matthew G. Whitaker, Matt M. Dummermuth. (aaaS, COURT STAFF) (Filed on 12/7/2018) (Entered: 12/07/2018)
159 OPPOSITION/RESPONSE (re 155 MOTION to Enforce Judgment ) filed byMatt M. Dummermuth, United States Department of Justice, Matthew G. Whitaker. (Attachments: # 1 Defendants' Request for Judicial Notice, # 2 Declaration of Tracey J. Trautman)(Simpson, W.) (Filed on 12/7/2018) (Entered: 12/07/2018)
160 REPLY (re 155 MOTION to Enforce Judgment ) filed byState of California, ex rel. XAVIER BECERRA, in his official capacity as Attorney General of the State of California. (Attachments: # 1 Declaration of Chris Caligiuri, # 2 Supplemental Request for Judicial Notice and Exhibits A−D)(Sherman, Lee) (Filed on 12/14/2018) (Entered: 12/14/2018)
161 NOTICE of Appearance by August Flentje (Flentje, August) (Filed on 12/17/2018) (Entered: 12/17/2018)
162 Clerk's Notice CONSENTING TO Video Recording of hearing re: 155 Motion to Enforce in Case No. 17−cv−4701−WHO. (jmdS, COURT STAFF) (Filed on 12/19/2018) (Entered: 12/19/2018)
163 Minute Entry for proceedings held before Judge William H. Orrick: Motion Hearing held on 12/21/2018 re 155 MOTION to Enforce Judgment. The motion is denied. The substantive issues California raises in its motion to enforce the Judgment may be brought in a separate action when the issues are ripe. There will be no further written order on this motion. Total Time in Court: 25 minutes. Court Reporter: Belle Ball. Plaintiff Attorneys: Lee I. Sherman and Sarah E. Belton. Defendant Attorney: August Flentje. (jmdS, COURT STAFF) (Date Filed: 12/21/2018) (Entered: 12/21/2018)
164 TRANSCRIPT ORDER for proceedings held on 12/21/2018 before Judge William H. Orrick by State of California, ex rel. XAVIER BECERRA, in his official capacity as Attorney General of the State of California, for Court Reporter Belle Ball. (Sherman, Lee) (Filed on 12/27/2018) (Entered: 12/27/2018)
165 Transcript of Proceedings held on December 21, 2018, before Judge William H. Orrick. Court Reporter Belle Ball, CSR, CRR, RDR, telephone number (415)373−2529, belle_ball@cand.uscourts.gov. 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 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 164 Transcript Order, ) Release of Transcript Restriction set for 4/3/2019. (Related documents(s) 164 ) (ballbb15S, COURT STAFF) (Filed on 1/3/2019) (Entered: 01/03/2019)
166 NOTICE by Matt M. Dummermuth, United States Department of Justice, Mathew Whitaker re 142 Notice of Appearance Notice of Withdrawal of Counsel for Defendants (Simpson, W.) (Filed on 2/4/2019) (Entered: 02/04/2019)
167 TRANSCRIPT ORDER for proceedings held on 12/21/2018 before Judge William H. Orrick by Matt M. Dummermuth, United States Department of Justice, William P. Barr, for Court Reporter Belle Ball. (Simpson, W.) (Filed on 2/21/2019) (Entered: 02/21/2019)

 
 Case 3:17-cv-04701-MEJ Document 1 Filed 08/14/17 Page 1 of 25

1 XAVIER BECERRA

Attorney General of California

2 ANGELA SIERRA

Senior Assistant Attorney General

3 MICHAEL NEWMAN

Supervising Deputy Attorney General

4 SARAH BELTON

LISA EHRLICH

5 LEE SHERMAN

Deputy Attorneys General

6 State Bar No. 272271

300 S. Spring St., Suite 1702

7

Los Angeles, CA 90013

Telephone: (213) 897-2409

8

Fax: (213) 897-7605

E-mail: Lee.Sherman@doj.ca.gov

9 Attorneys for the State of California

10

IN THE UNITED STATES DISTRICT COURT

11

FOR THE NORTHERN DISTRICT OF CALIFORNIA

12

SAN FRANCISCO DIVISION

13

14

Case No. 17-cv-4701

STATE OF CALIFORNIA, ex rel. XAVIER

15 BECERRA, in his official capacity as

Attorney General of the State of California

16

COMPLAINT FOR DECLARATORY

Plaintiff, AND INJUNCTIVE RELIEF

17

v.

18

19 JEFFERSON B. SESSIONS, in his official capacity as Attorney General of the United
20 States; ALAN R. HANSON, in his official capacity as Acting Assistant Attorney
21 General; UNITED STATES DEPARTMENT OF JUSTICE; and DOES
22 1-100,

23

Defendants.

24

25

26

27

28
1
Complaint for Declaratory and Injunctive Relief

Case 3:17-cv-04701-MEJ Document 1 Filed 08/14/17 Page 2 of 25

1

INTRODUCTION

2

1. Plaintiff State of California, ex rel. Xavier Becerra, in his official capacity as Attorney

3 General of the State (“Plaintiff”) brings this complaint to protect California from the Trump

4 Administration’s attempt to usurp the State and its political subdivisions’ discretion to determine

5 how to best protect public safety in their jurisdictions. The Administration has threatened to

6 withhold congressionally appropriated federal funds unless the State and local jurisdictions

7 acquiesce to the President’s immigration enforcement demands. This is unconstitutional and

8 should be halted.

9

2. Congress has appropriated $28.3 million in law enforcement funding to California and its

10 political subdivisions pursuant to the Edward Byrne Memorial Justice Assistance Grant (“JAG”)

11 program. The United States Department of Justice (“USDOJ”), led by Attorney General

12 Jefferson B. Sessions III, and the Office of Justice Programs (“OJP”), led by Acting Assistant

13 Attorney General Alan R. Hanson (collectively, with USDOJ and Attorney General Sessions, the

14 “Defendants”), are responsible for administering these grants.

15

3. JAG awards are provided to each state, and certain local jurisdictions within each state, to,

16 among other things, support law enforcement programs, reduce recidivism, conduct prevention

17 and education programs for at-risk youth, and support programs for crime victims and witnesses.

18 Every state is entitled by law to a share of these funds.

19

4. The JAG authorizing statute, 42 U.S.C. §§ 3750-3758, requires that jurisdictions comply

20 with “applicable Federal laws.” The statute governing OJP, 42 U.S.C. § 3712(a)(6) (“Section

21 3712”), also allows for the imposition of “special conditions,” which historically have been

22 understood to refer to conditions imposed to address performance issues with particular high-risk

23 grantees, and not as conditions to be placed on all grantees.

24

5. In this year’s JAG FY 2017 State Solicitation (“JAG State Solicitation”), for the first time,

25 Defendants imposed two additional so-called “special conditions” on all JAG recipients that

26 require compliance with immigration enforcement activities. These conditions require

27 jurisdictions to: (a) provide federal immigration enforcement agents with the Department of

28 Homeland Security (“DHS”) access to detention facilities to interview inmates who are “aliens”
2
Complaint for Declaratory and Injunctive Relief

Case 3:17-cv-04701-MEJ Document 1 Filed 08/14/17 Page 3 of 25

1 or believed to be “aliens” (the “access condition”); and (b) provide 48 hours’ advance notice to

2 DHS regarding the scheduled release date of an “alien” upon request by DHS (the “notification

3 condition”). In effect, they attempt to create, without congressional approval, a national

4 requirement that state and local law enforcement engage in specific behaviors to assist in the

5 Executive’s approach to federal immigration enforcement.

6

6. Based on one reading of these new conditions, California believes that its laws, in fact,

7 comply with them. Nevertheless, Defendants’ incorrect conclusions about California law have

8 placed at risk the $28.3 million in JAG funds received by the State and its political subdivisions.

9 The Transparency and Responsibility Using State Tools Act (“TRUST Act”), Cal. Gov’t Code §

10 7282 et seq., defines the circumstances in which a local law enforcement agency (“LEA”) may

11 detain an individual at the request of federal immigration authorities. The Transparent Review of

12 Unjust Transfers and Holds (“TRUTH Act”), Cal. Gov’t Code § 7283 et seq., provides notice

13 protections to inmates in state and local custody whom Immigration and Customs Enforcement

14 (“ICE”) wishes to interview. Defendant Sessions has inaccurately characterized California’s laws

15 as denying ICE access to jails in California.

16

7. To compound upon the peril to the State caused by Defendant Sessions’ misinterpretation

17 of California law, the grant conditions regarding access and notification also suffer from

18 ambiguity. The access condition fails to specify whether jurisdictions are prohibited from

19 notifying inmates of their basic rights prior to an ICE interview, which would conflict with the

20 TRUTH Act. The notification condition is ambiguous as to whether it requires LEAs to hold

21 individuals past their ordinary release when, for example, an individual is booked for a low-level

22 infraction and promptly released, pays bail, or has his or her charges dropped. USDOJ has

23 signaled that it interprets the notification condition as requiring that, once immigration officials

24 have requested notice, state and local officials may not release an individual until federal agents

25 have had 48 hours to try to take him or her into custody—even if the federal notification request

26 came less than 48 hours before the person’s ordinary release. To comply with this requirement,

27 LEAs would in some instances not only have to violate the TRUST Act, but would also have to

28 violate the Fourth Amendment—because ICE notification and detainer requests are not typically
3
Complaint for Declaratory and Injunctive Relief

Case 3:17-cv-04701-MEJ Document 1 Filed 08/14/17 Page 4 of 25

1 supported by the probable cause required for detentions under the Fourth Amendment.

2

8. The ambiguity regarding how the Defendants will interpret and enforce the access and

3 notification conditions harms California and its local jurisdictions. If California and local

4 jurisdictions do not accept the funds authorized by the JAG statute and appropriated by Congress,

5 important programs will need to be cut. And if this ambiguity pressures the State and/or its

6 localities to change their public-safety oriented laws and policies in order to ensure they comply

7 with these ambiguous conditions, they will have abandoned policies that the State and local

8 jurisdictions have found to be effective in their communities. As a result, the State and its

9 localities will lose control of their ability to focus their resources on fighting crime rather than

10 federal immigration enforcement. And the trust and cooperation that the State’s laws and local

11 ordinances are intended to build between law enforcement and immigrant communities will be

12 eroded.

13

9. Moreover, while Section 3712 allows for the imposition of “special conditions,” it does

14 not provide OJP with the authority to add these particular substantive immigration conditions.

15 These are not special conditions, as that term is generally understood, since they are applicable to

16 all recipients, not just high-risk grantees. In addition, they conflict with the JAG authorizing

17 statute’s Congressional intent to: (a) guarantee the delivery of appropriated formula grant funding

18 to particular state and local jurisdictions so long as they satisfy the requirements found in federal

19 law; and (b) not condition funding on immigration enforcement related activities.

20

10. Defendants also have exceeded constitutional limits under the Spending Clause of the

21 United States Constitution. The access and notification conditions are not sufficiently related to

22 the federal purpose areas of the JAG funding scheme designed by Congress, and the access and

23 notification conditions are too ambiguous to provide clear notice to the State or its political

24 subdivisions as to what is needed to comply. And depending on how compliance is measured, the

25 notification condition would further offend the Spending Clause prohibition on conditioning

26 funding on unconstitutional activities, here, by attaching funding conditions that may lead to a

27 violation of the Fourth Amendment.

28

11. These conditions also violate the Administrative Procedure Act (“APA”), 5 U.S.C. § 551

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1 et seq., because of their constitutional infirmities, and because Defendants acted in excess of their

2 statutory authority and in an arbitrary and capricious manner.

3

12. The California Legislature, as well as local governments throughout the State, carefully

4 crafted a statutory scheme that allows law enforcement resources to be allocated in the most

5 effective manner to promote public safety for all people in California, regardless of immigration

6 status, national origin, ancestry, or any other characteristic protected by California law. The

7 Defendants’ actions and statements threaten that design and intrudes on the sovereignty of

8 California and its local jurisdictions.

9

13. California must apply for its JAG award by August 25, 2017, and the State’s local

10 jurisdictions that apply directly to USDOJ for JAG funding must apply by September 5, 2017,

11 subject to the same conditions as the State. (JAG Solicitation for local jurisdictions (“JAG Local

12 Solicitation”) attached as Exhibit B. The JAG Local Solicitation, with the JAG State Solicitation,

13 are referred to as “JAG Solicitations.”) USDOJ is expected to provide its award notifications to

14 state and local jurisdictions by September 30, 2017, but Defendants have announced that they will

15 not provide any awards to jurisdictions that do not meet the access and notification conditions.

16 California therefore immediately faces the prospect of losing $28.3 million for these “criminal

17 justice” programs. Without this grant funding, California’s award recipients and the programs

18 funded will be harmed, which will have a detrimental effect on state and local law enforcement

19 and budgets.

20

14. For these reasons, and those discussed below, the Court should strike down the access

21 and notification conditions in the JAG Solicitations as unconstitutional and as a violation of the

22 APA.

23

JURISDICTION AND VENUE

24 15. Jurisdiction is proper in this Court pursuant to 28 U.S.C. § 1331 because this case
25 involves a civil action arising under the Constitution and the laws of the United States. The Court
26 also has jurisdiction under 28 U.S.C. § 1346 because this is a civil action against the federal
27 government founded upon the Constitution and an Act of Congress. Jurisdiction is proper under
28
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1 the judicial review provisions of the Administrative Procedure Act, 5 U.S.C. §§ 701-06. The

2 Court has authority to provide relief under the Declaratory Judgment Act, 28 U.S.C. § 2201.

3

16. Pursuant to 28 U.S.C. § 1391(e)(1) and (3), venue is proper in the Northern District of

4 California because the Attorney General and the State of California have offices at 455 Golden

5 Gate Avenue, San Francisco, California and at 1515 Clay Street, Oakland, California and

6 Defendants have offices at 450 Golden Gate Avenue, San Francisco, California.

7

INTRADISTRICT ASSIGNMENT

8

17. Assignment to the San Francisco Division of this District is proper pursuant to Civil

9 Local Rule 3-2(c)-(d) because Plaintiff, the State of California, and Defendants both maintain

10 offices in the District in San Francisco.

11

PARTIES

12

18. Plaintiff State of California is a sovereign state in the United States of America. Xavier

13 Becerra is the Attorney General of California, and as such, is the chief law officer in the State and

14 has “direct supervision over every … sheriff and over such other law enforcement officers as may

15 be designated by laws, in all matters pertaining to their respective offices.” Cal. Const., art. V, §

16 13; Cal. Gov’t Code § 12500, et seq; see Pierce v. Super., 1 Cal.2d 759, 761-62 (1934) [Attorney

17 General “has the power to file any civil action or proceeding directly involving the rights and

18 interests of the state. . . and the protection of public rights and interests.”]. California is aggrieved

19 by the actions of Defendants and has standing to bring this action because of the injury to its

20 sovereignty as a state caused by the challenged federal actions. The inclusion of unconstitutional

21 and unlawful conditions as part of the JAG award impairs the State’s exercise of its police power

22 in a manner it deems necessary to protect the public safety. As a result of Defendants’

23 unconstitutional actions, the State of California, including its political subdivisions, is in

24 imminent danger of losing $28.3 million this fiscal year, including $17.7 million that is owed to

25 the State itself.

26

19. Plaintiff Attorney General Xavier Becerra, on behalf of California, has standing to bring

27 this action because funding for law enforcement throughout the State is at stake and as the

28 Attorney General of the State of California, he is responsible for enforcing and protecting
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1 California’s laws, such as the TRUST and TRUTH Acts, which the access and notification

2 conditions threaten.

3

20. Defendant U.S. Department of Justice (“USDOJ”) is an executive department of the

4 United States of America pursuant to 5 U.S.C. § 101 and a federal agency within the meaning of

5 28 U.S.C. § 2671. As such, it engages in agency action, within the meaning of 5 U.S.C. § 702

6 and is named as a defendant in this action pursuant to 5 U.S.C. § 702. USDOJ is responsible for

7 administering the JAG funds appropriated by Congress.

8

21. Defendant Sessions III, is Attorney General of the United States, and oversees the

9 USDOJ, including the Office of Justice Programs (“OJP”). Defendant Sessions has declared that

10 “[s]ome jurisdictions, including the State of California and many of its largest counties and cities,

11 have enacted statutes and ordinances designed to specifically prohibit or hinder ICE from

12 enforcing immigration law by prohibiting communication with ICE, and denying requests by ICE

13 officers and agents to enter prisons and jails to make arrests.” Defendant Sessions also made a

14 statement announcing the access and notification conditions on the U.S. Department of Justice

15 website on July 25, 2017. He is sued in his official capacity pursuant to 5 U.S.C. § 702.

16

22. Defendant Alan R. Hanson is Acting Assistant Attorney General in charge of the OJP,

17 which administers JAG funding and which set forth the so-called “special conditions” at issue.

18 He is sued in his official capacity pursuant to 5 U.S.C. § 702.

19

23. Each of the Defendants named in this Complaint is an agency of the United States

20 government bearing responsibility, in whole or in part, for the acts enumerated in this Complaint.

21

24. The true names and capacities of Defendants identified as DOES 1-100 are unknown to

22 Plaintiff, and Plaintiff will amend this Complaint to insert the true names and capacities of those

23 fictitiously named Defendants when they are ascertained.

24

FACTUAL ALLEGATIONS

25 I. 26

CALIFORNIA’S LAWS SEEK TO PROTECT THE STATE RESIDENTS’ SAFETY AND WELFARE BY FOCUSING LAW ENFORCEMENT ON CRIMINAL ACTIVITY AND BY BUILDING TRUST BETWEEN LAW ENFORCEMENT AND COMMUNITIES

27

25. California state and local LEAs, guided by the duly enacted laws of the State and

28 ordinances of local jurisdictions, are tasked with effectively policing, protecting, and serving all
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1 residents, including more than 10 million foreign-born individuals, who live in the State.

2 California’s laws implicated in this suit, the TRUST Act and the TRUTH Act, are a valid exercise

3 of the State’s police power to regulate regarding the health, welfare, and public safety of its

4 residents.

5

26. California has also enacted other laws that strengthen community policing efforts by

6 encouraging undocumented victims to report crimes to local law enforcement. For example,

7 California’s Immigrant Victims of Crime Equity Act, Cal. Penal Code § 679.10, which took

8 effect on January 1, 2016, ensures that all immigrant crime victims have equal access to the U

9 nonimmigrant visa. Laws such as this are specifically designed to encourage immigrants to report

10 crimes so that perpetrators are apprehended before harming others.

11

27. The purpose of these California laws is to ensure that law enforcement resources are

12 focused on a core public safety mission and to build trust and cooperation between law

13 enforcement and the State’s immigrant communities. When local and state LEAs engage in

14 immigration enforcement, as Defendants contemplate, vulnerable victims and witnesses are less

15 likely to come forward to report crimes.

16

28. California’s laws are not unique. Many jurisdictions across the country have policies

17 that define the circumstances under which local law enforcement personnel expend time and

18 resources in furtherance of federal immigration enforcement. Those jurisdictions variously

19 impose limits on compliance with ICE detainer requests, ICE notification requests about release

20 dates, and ICE’s access to detainees, or provide additional procedural protections to them.

21

A. The TRUST Act

22

29. In 2013, California enacted the TRUST Act, Cal. Gov’t Code, § 7282 et seq. The

23 TRUST Act defines the circumstances under which local LEAs may detain an individual at the

24 request of federal immigration authorities. The TRUST Act went into effect on January 1, 2014.

25

30. The TRUST Act was intended to address numerous public safety concerns regarding the

26 federal practice of issuing detainers to local law enforcement. Among the Legislature’s concerns

27 were that federal courts have concluded that detainer requests do not provide sufficient probable

28 cause, and data showing that detainer requests “have erroneously been placed on United States
8
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1 citizens, as well as immigrants who are not deportable.” Assem. Bill No. 4, 1st Reg. Sess. (Cal.

2 2013) § 1(c).

3

31. The Legislature also found that “immigration detainers harm community policing efforts

4 because immigrant residents who are victims of or witnesses to crime, including domestic

5 violence, are less likely to report crime or cooperate with law enforcement when any contact with

6 law enforcement could result in deportation.” Id. § 1(d). The Legislature also considered data

7 demonstrating that the vast majority of individuals detained had no criminal history or were only

8 convicted of minor offenses, and research establishing that “immigrants, including undocumented

9 immigrants, do not commit crimes at higher rates than American-born residents.” Id.

10

32. The TRUST Act sets forth two conditions that must be met for local law enforcement to

11 have discretion to detain a person pursuant to an “immigration hold” (also known as a “detainer

12 request” or “detainer hold”) that occurs when a federal immigration agent requests that the law

13 enforcement official “maintain custody of the individual for a period not to exceed 48 hours,

14 excluding Saturdays, Sundays, and holidays.” Cal. Gov’t Code § 7282(c). First, the detention

15 cannot “violate any federal, state, or local law, or any local policy,” which includes the Fourth

16 Amendment of the U.S. Constitution. Id. § 7282(a). Second, law enforcement officers may only

17 detain someone with certain, specified criminal backgrounds, an individual on the California Sex

18 and Arson Registry, or a person charged with a serious or violent felony who was the subject of a

19 probable cause determination from a magistrate judge. Id. § 7282.5(a)(1)-(6). Only when both of

20 these conditions are met may local law enforcement detain an individual “on the basis of an

21 immigration hold after the individual becomes eligible for release from custody.” Id. § 7282.5(b).

22

33. The TRUST Act limits an LEA’s discretion as to when it may detain individuals

23 pursuant to an immigration hold beyond their ordinary release. This limitation is consistent with

24 federal law, in that USDOJ, DHS and the courts have repeatedly characterized detainer requests

25 as voluntary.

26

34. The TRUST Act, however, does not limit, in any way, a jurisdiction from complying

27 with notification requests so long as the jurisdiction is not required to hold the individual beyond

28 when he or she is otherwise legally eligible for release. It also does not prohibit a jurisdiction
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1 from allowing federal immigration enforcement agents to access its jails to interview inmates.

2

B. The TRUTH Act

3

35. In 2016, California enacted the TRUTH Act, Cal. Gov’t Code § 7283 et seq., which took

4 effect on January 1, 2017. The purpose of the TRUTH Act is to increase transparency about

5 immigration enforcement and “to promote public safety and preserve limited resources because

6 entanglement between local law enforcement and ICE undermines community policing strategies

7 and drains local resources.” Assem. Bill No. 2792, Reg. Sess. (Cal. 2016) § 2(a)-(c), (g)-(i).

8

36. Under the TRUTH Act, before an interview with ICE takes place, a local law enforcement

9 officer must provide the detained individual with a “written consent form that explains the purpose

10 of the interview, that the interview is voluntary, and that he or she may decline to be interviewed

11 or may choose to be interviewed only with his or her attorney present.” Cal. Gov’t Code §

12 7283.1(a). In addition, when a local LEA receives a detainer hold, notification, or transfer request,

13 the local LEA must “provide a copy of the request to the [detained] individual and inform him or

14 her whether the law enforcement agency intends to comply with the request.” Id. § 7283.1(b). If

15 the LEA complies with ICE’s request to notify ICE as to when the individual will be released, it

16 must also “promptly provide the same notification in writing to the individual and to his or her

17 attorney or to one additional person who the individual shall be permitted to designate.” Id.

18

37. The TRUTH Act does not limit, in any way, a jurisdiction from complying with

19 notification requests; rather, it only requires that the jurisdiction also provide notice to the

20 individual of its actions. It also does not prohibit a jurisdiction from allowing ICE to access its

21 jails to interview inmates.

22 II. CONGRESS DID NOT INTEND JAG TO BE CONDITIONED ON STATE AND LOCAL LAW ENFORCEMENT ASSISTING IN FEDERAL IMMIGRATION ENFORCEMENT
23

24

38. JAG is administered by OJP within USDOJ. JAG funding is authorized by Congress

25 under 42 U.S.C. §§ 3750-58. The authorizing statute has been amended numerous times since its

26 inception in 1988, evolving into the JAG program as it exists today.

27

39. The Anti-Drug Abuse Act of 1988 amended the Omnibus Crime Control and Safe Streets

28 Act of 1968 to create the Edward Byrne Memorial State and Local Law Enforcement Assistance
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1 Programs grants (“Byrne Grants”) “to assist States and units of local government in carrying out

2 specific programs which offer a high probability of improving the functioning of the criminal

3 justice system.” Anti-Drug Abuse Act of 1988, Pub. L. No. 100-690, tit. VI, § 6091(a), 102 Stat.

4 4181 (1988) (repealed 2006). Congress placed a “special emphasis” on programs that support

5 national drug control priorities across states and jurisdictions. Id. Congress identified 21

6 “purpose areas” for which Byrne Grants could be used. Many of the purpose areas relate to the

7 investigation, enforcement, and prosecution of drug offenses. See id., tit. V, § 5104. Immigration

8 enforcement was never specified in any of the grant purpose areas.

9

40. In amendments between 1994 and 2000, Congress identified eight more purpose areas

10 for which Byrne funding could be used, bringing the total to 29. 42 U.S.C. § 3751(b) (as it

11 existed on Dec. 21, 2000) (repealed 2006). For Fiscal Year 1996, Congress separately authorized

12 Local Law Enforcement Block Grants (“LLEBG”) that directed payment to units of local

13 government for the purpose of hiring more police officers or “reducing crime and improving

14 public safety.” Local Government Law Enforcement Block Grants Act of 1995, H.R. 728, 104th

15 Cong. (1995). Congress identified eight “purpose areas” for LLEBG, none of which were

16 immigration enforcement.

17

41. The Byrne Grant and LLEBG programs were then merged to eliminate duplication,

18 improve their administration, and to provide State and local governments “more flexibility to

19 spend money for programs that work for them rather than to impose a ‘one size fits all’ solution”

20 to local law enforcement. Pub. L. No. 108-447, 118 Stat. 2809 (2004); H.R. Rep. No. 109-233, at

21 89 (2005); see also 42 U.S.C. § 3750(a), (b)(1).

22

42. Now the JAG authorizing statute enumerates eight purpose areas for: (A) law

23 enforcement programs; (B) prosecution and court programs; (C) prevention and education

24 programs; (D) corrections and community corrections programs; (E) drug treatments and

25 enforcement programs; (F) planning, evaluation, and technology improvement programs; (G)

26 crime victim and witness programs; and (H) mental health programs related to law enforcement

27 and corrections. 42 U.S.C. §3751(a)(1).

28

43. The purpose areas for these grants are to support “criminal justice” programs;

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1 immigration enforcement is generally civil in nature. See Arizona v. U.S., 567 U.S. 387, 396

2 (2012). Immigration enforcement was also never specified in the purpose areas for any of these

3 grants throughout this entire legislative history.

4

44. In 2006, Congress repealed the only immigration-related requirement that had ever

5 existed for JAG funding, a requirement that the chief executive officer of the state receiving JAG

6 funding provide certified records of criminal convictions of “aliens.” See Immigration Act of

7 1990, Pub. L. No. 101-649, tit. V, § 507(a), 104 Stat. 4978, 5050-51 (1990); Miscellaneous and

8 Technical Immigration and Naturalization Amendments of 1991, Pub. L. No. 102-232, tit. III, §

9 306(a)(6), 105 Stat. 1733, 1751 (1991) (repealed 2006). The repeal of this provision evidences

10 Congress’ intent not to condition JAG funding on immigration enforcement-related activities.

11 This is consistent with the statutory scheme that does not include a purpose area connected to

12 immigration enforcement.

13

45. In addition, more recently, Congress has considered but declined to adopt legislation that

14 would penalize cities for setting their own law enforcement priorities and attempting to impose

15 conditions similar to the conditions here.1

16 III. THE JAG AUTHORIZING STRUCTURE REQUIRES THAT STATE AND LOCAL JURISDICTIONS RECEIVE FORMULA GRANTS
17

18

A. The JAG Formula Structure and Conditions

19

46. When creating the merged JAG funding structure in 2006, Congress set a formula to

20 apportion JAG funds to state and local jurisdictions. 42 U.S.C. § 3755. Population and violent

21 crime rates are used to calculate each state’s allocation. 42 U.S.C. § 3755(a)(1). Congress

22 guarantees to each state a minimum allocation of JAG funds. 42 U.S.C. § 3755(a)(2).

23

47. In addition to determining the amount of money received by grantees within each state,

24 Congress set forth how that money is to be shared between state and local jurisdictions. Under

25 the statutory formula, 60 percent of the total allocation to a state must be given directly to the

26 state. 42 U.S.C. § 3755(b)(1).

27 1 See, e.g., Stop Dangerous Sanctuary Cities Act, S. 3100, 114th Cong. (2016) (cloture on the
28 motion to proceed rejected).
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1

48. The statutory formula also provides that 40 percent of the total allocation to a state must

2 be given to local governments within the state. 42 U.S.C. § 3755(d)(1). Each unit of local

3 government receives funds based on its crime rate. 42 U.S.C. § 3755(d)(2)(A).

4

49. According to Congress’s JAG funding scheme, states and local governments that apply

5 for JAG funds are required to make limited certifications and assurances. Beyond ministerial

6 requirements identified in the authorizing statute, the chief executive officer of each applicant

7 must certify that: (A) the law enforcement programs to be funded meet all requirements of the

8 JAG authorizing statute; (B) all information in the application is correct; (C) there was

9 coordination with affected agencies; and (D) the applicant will comply with all provisions of the

10 JAG authorizing statute. 42 U.S.C. § 3752(a)(5).

11

50. Congress has enacted reductions or penalties in JAG funds when certain conditions

12 occur, such as a state failing to substantially implement the Sex Offender Registration and

13 Notification Act or a governor not certifying compliance with the national Prison Rape

14 Elimination Act standards. See 42 U.S.C. §§ 16925, 15607(e)(2). Unlike the access and

15 notification conditions, these conditions were explicitly added by Congress.

16

B. California’s Allocation and Use of the JAG Award

17

51. Based on the formula prescribed by statute, California is expected to receive

18 approximately $28.3 million in JAG funding in FY 2017, with $17.7 million going to the Board

19 of State and Community Corrections (“BSCC”), the entity that receives the formula grant funds

20 that are allocated to the State.

21

52. BSCC disburses JAG funding using subgrants predominately to local jurisdictions

22 throughout California to fund programs that meet the purpose areas identified in the JAG

23 authorizing statute. Between FY 2015-17, BSCC funded 32 local jurisdictions and the California

24 Department of Justice.

25

53. In the past, BSCC prioritized subgrants to those jurisdictions that focus on education and

26 crime prevention programs, law enforcement programs, and court programs, including indigent

27 defense. Some examples of California jurisdictions’ purpose-driven use of JAG funds include:

28 (a) implementing educational programs to improve educational outcomes, increase graduation
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1 rates, and curb truancy; (b) providing youth and adult gang members with multi-disciplinary

2 education, employment, treatment, and other support services to prevent gang involvement,

3 reduce substance abuse, and curtail delinquency and recidivism; (c) implementing school-wide

4 prevention and intervention initiatives for some of the county’s highest-risk students; (d)

5 providing comprehensive post-dispositional advocacy and reentry services to improve outcomes

6 and reduce recidivism for juvenile probationers; (e) providing a continuum of detention

7 alternatives to juvenile offenders who do not require secure detention, which includes assessment,

8 referral, case advocacy, home detention, reporting centers, non-secure, shelter, intensive case

9 management and wraparound family support services; and (f) funding diversion and re-entry

10 programs for both minors and young adult offenders.

11 IV. OJP HAS EXCEEDED ITS STATUTORY AUTHORITY BY IMPOSING THE NEW CONDITIONS
12

13

A. Description of the JAG Solicitation

14

54. On July 25, 2017, OJP announced the FY 2017 State JAG Solicitation. OJP set the

15 deadline for applications as August 25, 2017. On August 3, 2017, OJP announced the FY 2017

16 JAG Local Solicitation with a deadline of September 5, 2017.

17

55. In the JAG Solicitations, for the first time in Fiscal Year 2017, OJP announced two

18 additional substantive “special conditions” related to federal immigration enforcement. To

19 receive a JAG award, jurisdictions must:

20

• permit personnel of the U.S. Department of Homeland Security (“DHS”) to access any

21

correctional or detention facility in order to meet with an “alien” (or an individual

22

believed to be an “alien”) and inquire as to his or her right to be or remain in the

23

United States (the “access condition”); and

24

• provide at least 48 hours’ advance notice to DHS regarding the scheduled release date

25

and time of an “alien” in the jurisdiction’s custody when DHS requests such notice in

26

order to take custody of the individual pursuant to the Immigration and Nationality

27

Act (the “notification condition”).

28 Exh. A, at 32. Both of these conditions exist in the State and Local JAG Solicitations.
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1

56. Grant recipients, including the BSCC, must execute “Certified Standard Assurances” that

2 it “will comply with all award requirements,” including the access and notification conditions.

3 See id. at Appx. IV.

4

57. Subgrantees must assure that they will comply with all award conditions, including the

5 access and notification conditions. See id. at 20-21.

6

58. Based on information and belief, the state recipient must execute the Certified Standard

7 Assurances by the application deadline on August 25, 2017. “OJP expects to issue award

8 notifications by September 30, 2017.” Id. at 31.

9

59. At no point has USDOJ or OJP provided any explanation as to how the access and

10 notification conditions relate to Congress’s intent in authorizing JAG.

11

B. OJP Lacks Statutory Authority to Impose “Special Conditions” of this

Type 12

13

60. JAG’s authorizing statute provides no authority for OJP to impose the access and

14 notification conditions (the so-called “special conditions”) on all grant recipients. Indeed, the

15 same statute that authorizes JAG funding, the Omnibus Crime Control and Safe Streets Act of

16 1968, also authorizes funding pursuant to the Violence Against Women Act (“VAWA”) that

17 permits the Attorney General to “impose reasonable conditions on grant awards.” 42 U.S.C. §

18 3796gg-1(e)(3). Congress’s clear direction to USDOJ to add “reasonable conditions” pursuant to

19 VAWA, but not for JAG, strongly indicates that Congress did not intend to confer discretion on

20 OJP to add unlimited substantive conditions at its whim.

21

61. Although nothing related to the access and notification conditions is found within the

22 statutory text or legislative history related to JAG, OJP claims it has the authority to add these

23 conditions under Section 3712, which allows OJP to add “special conditions on all grants.”

24

62. OJP’s basis for using its purported authority to add these conditions here, without

25 limitation, is statutorily and constitutionally flawed.

26

63. In 2006, when Section 3712 was amended to permit OJP to “plac[e] special conditions

27 on all grants,” the term “special conditions” had a precise meaning. According to a USDOJ

28 regulation in place at the time, the agency could impose “special grant or subgrant conditions” on
15
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1 “high-risk grantees” if the grant applicant: (a) had a history of poor performance; (b) was not

2 financially stable; (c) had a management system that did not meet certain federal standards; (d)

3 had not conformed to the terms and conditions of a previous grant award; or (e) was not otherwise

4 responsible. 28 C.F.R. § 66.12 (removed December 25, 2014). This language was based on the

5 grants management common rule adopted by the Office of Management and Budget (“OMB”),

6 and followed by “all Federal agencies” when administering grants to state and local governments.

7 OMB Circular A-102 (as amended Aug. 29, 1997). Other federal statutes and regulations have

8 also historically identified “special conditions” as those that federal agencies may place on

9 particular high-risk grantees who have struggled or failed to comply with grant conditions in the

10 past, not on all grantees irrespective of performance.

11

64. Interpreting OJP’s authority to permit it to impose any substantive conditions with

12 respect to formula grants, like JAG, beyond what is allowed under federal law further conflicts

13 with Congressional intent in establishing a prescribed formula grant structure. Congress designed

14 JAG so that “each State” receives an allocation according to a precise statutory formula. 42

15 U.S.C. § 3755(a) (emphasis added). Likewise, Congress’s formula provides allocation to “each

16 unit of local government.” 42 U.S.C. § 3755(d)(2) (emphasis added). As such, if USDOJ makes

17 grants from funds that Congress appropriated to JAG, OJP must disburse the funds according to

18 the statutory formula enacted by Congress so long as the jurisdiction complies with the conditions

19 that exist in federal law.

20

65. The conditions also conflict with the immigration enforcement scheme set forth by

21 Congress in the Immigration and Naturalization Act (“INA”) that makes cooperation with

22 immigration enforcement agencies voluntary. There is no provision in the INA, or any federal

23 law, that requires jurisdictions to assist with otherwise voluntary immigration enforcement related

24 activities in order to receive these federal funds.

25

66. While USDOJ has the ability to add conditions to JAG awards, it cannot add substantive

26 grant conditions such as these, that are not tethered to any federal statute. For instance, it could

27 add “special conditions” for high-risk grantees as described above. It could add conditions that

28 stem from the authorizing JAG statute. And it could add conditions that Congress directed be
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1 applied to federally funded programs. See, e.g., 42 U.S.C. § 2000d-1; 29 U.S.C. § 794(a)(1); 20

2 U.S.C. § 1681(a)(1); 42 U.S.C. § 6102.

3

C. The Access and Notification Conditions do not Provide Jurisdictions with

Clear Notice of what the Conditions Require 4

5

67. It is ambiguous what the access and notification conditions require grant recipients to do.

6 For example, it is unclear whether the condition requiring jurisdictions to provide ICE jail access

7 for interview purposes prohibits grant recipients from informing inmates of their right to have a

8 lawyer present or decline an interview with ICE, which would implicate the notice requirements

9 in the TRUTH Act.

10

68. It is also ambiguous as to whether the condition requiring compliance with immigration

11 notification requests should be applied when an individual is scheduled to be released less than 48

12 hours after the jurisdiction receives a notification request, or if the individual becomes eligible for

13 release without advance warning (i.e., released on bail).

14

D. Interpreting the Notification Condition as a Requirement to Hold an

Individual Past His or Her Ordinary Release would mean OJP is

15

Conditioning Funding on Unconstitutional Activities

16

69. If OJP interprets the ambiguous notification condition to require a jurisdiction to hold an

17 individual beyond his or her scheduled release date and time in order to comply with the 48-hour

18 notice requirement, OJP would be transforming the notification request into a secondary

19 immigration hold request. This would force jurisdictions to risk engaging in activities barred by

20 the Fourth Amendment of the U.S. Constitution in order to receive federal funding. That is

21 because jurisdictions would be required to detain individuals beyond when they would otherwise

22 be eligible for release even if the jurisdiction lacks probable cause to do so.

23

70. As a matter of practice, when issuing detainer notification requests, ICE checks a box

24 identifying whether: (a) there is a final order of removal; (b) removal proceedings are pending as

25 to the individual; (c) “[B]iometric confirmation of the alien’s identity and a records check of

26 federal databases that affirmatively indicate, by themselves or in addition to other reliable

27 information, that the alien either lacks immigration status or notwithstanding such status is

28 removable under U.S. immigration law;” and/or (d) “[S]tatements made by the alien to an
17
Complaint for Declaratory and Injunctive Relief

Case 3:17-cv-04701-MEJ Document 1 Filed 08/14/17 Page 18 of 25

1 immigration officer and/or reliable evidence that affirmatively indicate that the alien either lacks

2 immigration status or notwithstanding such status is removable under U.S. immigration law.”2

3

71. The notification and detainer requests alone do not provide jurisdictions with any other

4 individually particularized information about the basis for removability. And detainer and

5 notification requests are typically only accompanied by an ICE administrative warrant, which has

6 not been reviewed and approved by a neutral magistrate. As federal courts throughout the

7 country have determined, jurisdictions that hold individuals beyond their ordinary release

8 pursuant to ICE detainer requests violate the Fourth Amendment of the U.S. Constitution if the

9 detainer requests are not supported by independent probable cause or a judicial warrant. See, e.g.,

10 Cty of Santa Clara., slip op. at 6 (N.D. Cal. Apr. 25, 2017).

11

72. OJP appears to interpret the notification condition as requiring jurisdictions to hold an

12 individual beyond when he or she is otherwise eligible for release if necessary to provide 48-hour

13 notice to ICE before release. On August 3, 2017, OJP sent a letter to four local jurisdictions,

14 including the California cities of Stockton and San Bernardino, interested in the Public Safety

15 Partnership (“PSP”) Program, a non-formula grant funding source administered through JAG.

16 The letter asked jurisdictions to inform ICE whether the jurisdiction has a “statute, rule,

17 regulation, policy, or practice that is designed to ensure that your correctional and detention

18 facilities provide at least 48 hours’ advance notice, where possible, to DHS regarding the

19 scheduled release date and time of an alien in the jurisdiction’s custody when DHS requests such

20 notice in order to take custody of the alien.”3

21

73. A similar “where possible” limitation is not included in the JAG Solicitations. It thus

22 appears that OJP may expect jurisdictions to detain individuals beyond their release date in order

23 to comply with the condition—which would require the recipient jurisdictions to potentially

24 violate the Fourth Amendment. But even adding a “where possible” limitation does not cure the

25 existing ambiguity. To cure the ambiguity and the Fourth Amendment problems with the

26 2 See Department of Homeland Security, Immigration Detainer – Notice of Action, I-
27 247A, https://www.ice.gov/sites/default/files/documents/Document/2017/I-247A.pdf. 3 See U.S. Department of Justice, Alan Hanson Letters to Jurisdictions re PSP (Aug 3.
28 2017), https://www.justice.gov/opa/press-release/file/986411/download (emphasis added).
18
Complaint for Declaratory and Injunctive Relief

Case 3:17-cv-04701-MEJ Document 1 Filed 08/14/17 Page 19 of 25

1 notification condition, OJP would need to explicitly state that jurisdictions do not need to detain

2 an individual beyond his or her ordinary release in order to comply with the condition.

3 V. USDOJ HAS MADE CLEAR THAT IT DOES NOT BELIEVE CALIFORNIA COMPLIES WITH THE ACCESS AND NOTIFICATION CONDITIONS
4

5

74. Although California’s laws comply with the access and notification conditions under one

6 interpretation of the conditions, Defendants have consistently stated or suggested their perception

7 that California and its local jurisdictions fail to comply with these conditions.

8

A. California Has a Credible Fear that USDOJ Will Wrongly Withhold

Funding Based on the Access Condition 9

10

75. On March 29, 2017, Defendant Sessions and then-DHS Secretary John Kelly sent a joint

11 letter to the Chief Justice of California. The letter, which responded to the Chief Justice’s

12 expression of concern about ICE arrests occurring in state courthouses, stated that “[s]ome

13 jurisdictions, including the State of California and many of its largest counties and cities, have

14 enacted statutes and ordinances designed to specifically prohibit or hinder ICE from enforcing

15 immigration law by prohibiting communication with ICE, and denying requests by ICE officers

16 and agents to enter prisons and jails to make arrests.”4

17

76. No California law prohibits ICE’s access to jails. The TRUST Act only limits

18 circumstances under which local law enforcement have discretion to comply with detainer

19 requests. And the TRUTH Act only provides protections so that inmates are aware of their rights

20 before they make the voluntary decision of whether to speak to ICE.

21

77. Defendant Sessions’ inaccurate characterization of California law as denying ICE access

22 to jails, and thereby failing to satisfy this new condition in the JAG Solicitations, places

23 California and local jurisdictions at risk of not receiving the JAG funds.

24

25

26

27

4 Attorney General Jefferson B. Sessions and Secretary John F. Kelly Letter to the

Honorable Tani G. Cantil (Mar. 29, 2017), 28 https://www.nytimes.com/interactive/2017/03/31/us/sessions-kelly-letter.html.

19

Complaint for Declaratory and Injunctive Relief

Case 3:17-cv-04701-MEJ Document 1 Filed 08/14/17 Page 20 of 25

1

B. California Has a Credible Fear that USDOJ Will Wrongly Withhold

Funding Based on the Notification Condition

2

3

78. California has a credible fear that the notification condition requires local jurisdictions to

4 hold an individual beyond his or her ordinary release and, therefore, USDOJ will find that

5 California and its political subdivisions fail to comply with this condition because of the TRUST

6 Act.

7

79. In addition to the ambiguous wording of the notification condition, Defendant Sessions

8 has made numerous statements asserting his desire to take federal funding away from

9 jurisdictions that do not comply with detainer requests. For instance, on March 27, 2017,

10 Defendant Sessions exclusively discussed “policies” regarding refusals “to detain known felons

11 under federal detainer requests.”5 Defendant Sessions threatened that “policies” that limit

12 compliance with detainer requests placed jurisdictions “at risk of losing valuable federal dollars.”6

13

80. Defendant Sessions’ statements targeting jurisdictions that do not universally comply

14 with detainer holds further corroborate that USDOJ intends to enforce this condition to require

15 jurisdictions to hold individuals beyond their ordinary release.

16 VI. THE IMPOSITION OF THE ILLEGAL FUNDING CONDITIONS WILL CREATE IRREPARABLE HARM TO THE STATE AND ITS LOCAL JURISDICTIONS
17 81. The ambiguity in the access and notification conditions, in combination with Defendants’

18 interpretations of California law, create the prospect that the State and/or its local jurisdictions

19 will not apply for JAG unless there is clarification about the scope of the new conditions. That

20 means a loss of up to $28.3 million in critical funds that would otherwise go toward programs

21 throughout the State that reduce recidivism for at-risk youth, counter the distribution of illegal

22 drugs, advance community policing, and improve educational outcomes.

23 82. Another prospect is that the State and/or its localities accept the funding and change their

24 public-safety oriented laws and policies in order to ensure they are viewed as complying with

25 these ambiguous access and notification conditions. Abandoning these policies, that law

26

5 U.S. Department of Justice, Attorney General Jeff Sessions Delivers Remarks on 27 Sanctuary Jurisdictions (Mar. 27, 2017), https://www.justice.gov/opa/speech/attorney-general-

jeff-sessions-delivers-remarks-sanctuary-jurisdictions.

28

6 Id.

20

Complaint for Declaratory and Injunctive Relief

Case 3:17-cv-04701-MEJ Document 1 Filed 08/14/17 Page 21 of 25

1 enforcement has found to be effective in their communities, could divert resources away from

2 fighting crime and erode trust between the state and local governments and their immigrant

3 communities that the TRUST and TRUTH Acts, as well as local ordinances, are intended to

4 build.

5

83. In order to compel jurisdictions to adopt its federal immigration program, the

6 Administration has admitted that it intends to force state and local jurisdictions to abandon

7 policies these jurisdictions have adopted based on their considered judgment on how best to

8 enhance public safety. The ambiguity of these conditions is part and parcel of the

9 Administration’s plan to create a chilling effect that makes state and local jurisdictions think

10 twice about maintaining their current policies. If Defendants clarify the access condition to

11 explain that they expect jurisdictions to not provide any procedural protections to detainees before

12 an ICE interview, or the notification condition to mean that jurisdictions must provide ICE with

13 48-hour notice even if it means holding someone beyond his or her ordinary release, jurisdictions

14 will still feel pressured to change their laws or policies to avoid losing any federal funding.

15

84. Compelling state and local governments to make a decision without providing clarity

16 about the scope of the conditions, or construing these funding conditions to prohibit jurisdictions

17 from providing notice protections for inmates or requiring jurisdictions to detain individuals

18 beyond their ordinary release, undermines public safety, is unconstitutional, and should be halted.

19

FIRST CLAIM FOR RELIEF

20

VIOLATION OF CONSTITUTIONAL SEPARATION OF POWERS

21

85. Plaintiff incorporates the allegations of the preceding paragraphs by reference.

22

86. Article I, Section I of the United States Constitution enumerates that “[a]ll legislative

23 Powers herein granted shall be vested in [the] Congress.”

24

87. Article I, Section VIII of the United States Constitution vests exclusively in Congress the

25 spending power to “provide for . . . the General Welfare of the United States.”

26

88. Defendants have exceeded Congressional authority by adding conditions requiring

27 jurisdictions to provide access to detention facilities to interview inmates and to comply with

28 notification requests that are not conferred by the JAG authorizing statute or any other federal
21
Complaint for Declaratory and Injunctive Relief

Case 3:17-cv-04701-MEJ Document 1 Filed 08/14/17 Page 22 of 25

1 law. See 42 U.S.C. §§ 3750-58. The new access and notification conditions therefore unlawfully

2 exceed the Executive Branch’s powers and intrude upon the powers of Congress.

3

89. For the reasons stated herein, the access and notification conditions in the JAG

4 Solicitations are unlawful, unconstitutional, and should be set aside under 28 U.S.C. § 2201.

5

SECOND CLAIM FOR RELIEF

6

VIOLATION OF CONGRESSIONAL SPENDING AUTHORITY

7

90. Plaintiff incorporates the allegations of the preceding paragraphs by reference.

8

91. Congress’ spending power is not unlimited. When “Congress desires to condition the

9 States’ receipt of federal funds, it ‘must do so (a) unambiguously …, enable[ing] the States to

10 exercise their choice knowingly, cognizant of the consequences of their participation;’” (b) by

11 placing conditions that are related “to the federal interest in particular national projects or

12 programs;” and (c) to not “induce the States to engage in activities that would themselves be

13 unconstitutional.” South Dakota v. Dole, 483 U.S. 203, 207 (1987).

14

92. To the extent that Congress delegated its authority to impose conditions (special

15 conditions or otherwise) on JAG funding (which Plaintiff does not concede), the access and

16 notification conditions violate the Spending Clause of the U.S. Constitution.

17

93. The access and notification conditions are unrelated to the “federal interest in particular

18 national projects or programs” for which Congress intended JAG funding to be used.

19

94. The access and notification conditions violate the Spending Clause because they are

20 ambiguous and do not provide the State with notice to make a “choice knowingly” of whether to

21 comply.

22

95. Additionally, if the notification condition requires jurisdictions to hold individuals beyond

23 their ordinary release to comply with the notification condition, that condition would also violate

24 the independent constitutional bar prong of the Spending Clause by requiring local law

25 enforcement to comply even when doing so would violate the Fourth Amendment of the U.S.

26 Constitution.

27

96. For the reasons stated herein, the access and notification conditions in the JAG

28 Solicitations are unlawful, and should be set aside under 28 U.S.C. § 2201.
22
Complaint for Declaratory and Injunctive Relief

Case 3:17-cv-04701-MEJ Document 1 Filed 08/14/17 Page 23 of 25

1

THIRD CLAIM FOR RELIEF

2

VIOLATION OF ADMINISTRATIVE PROCEDURE ACT

3

(Constitutional Violations and Excess of Statutory Authority)

4

97. Plaintiff incorporates the allegations of the preceding paragraphs by reference.

5

98. Defendant USDOJ is an “agency” under the APA, 5 U.S.C. § 551(1), and the JAG

6 solicitation is an “agency action” under the APA, id. § 551(13).

7

99. The JAG Solicitations constitute “[a]gency action made reviewable by statute and final

8 agency action for which there is no other adequate remedy in a court.” Id. § 704.

9

100. The APA requires that a court “hold unlawful and set aside agency action, findings,

10 and conclusions found to be … contrary to constitutional right, power, privilege, or immunity,” or

11 “in excess of statutory jurisdiction, authority, or limitations, or short of statutory right.” Id. §

12 706(2)(B)-(C).

13

101. Defendants’ imposition of the access and notification conditions in the JAG

14 Solicitations is unconstitutional because Defendants overstepped their powers by exercising

15 lawmaking authority that is solely reserved to Congress under Article I, Section I of the U.S.

16 Constitution. Also, Defendants’ imposition of the access and notification conditions in the JAG

17 Solicitations was in excess of their statutory authority. Furthermore, both conditions violate the

18 Spending Clause because they are unrelated to the federal purpose of the grant, ambiguous,

19 and/or tied to unconstitutional activities.

20

102. Because Defendants acted unconstitutionally and in excess of their statutory authority

21 through the JAG Solicitations, these actions are unlawful and should be set aside under 5 U.S.C. §

22 706.

23

FOURTH CLAIM FOR RELIEF

24

VIOLATION OF THE ADMINISTRATIVE PROCEDURE ACT

25

(Arbitrary and Capricious )

26

103. Plaintiff incorporates the allegations of the preceding paragraphs by reference.

27

104. Defendant USDOJ is an “agency” under the APA, 5 U.S.C. § 551(1), and the JAG

28 solicitation is an “agency action” under the APA, id. § 551(13).
23
Complaint for Declaratory and Injunctive Relief

Case 3:17-cv-04701-MEJ Document 1 Filed 08/14/17 Page 24 of 25

1

105. The JAG Solicitations constitute “[a]gency action made reviewable by statute and

2 final agency action for which there is no other adequate remedy in a court.” Id. § 704.

3

106. The APA requires that a court “hold unlawful and set aside agency action, findings,

4 and conclusions found to be … arbitrary, capricious, an abuse of discretion, or otherwise not in

5 accordance with law.” Id. § 706(2)(A).

6

107. The imposition of the access and notification conditions is arbitrary and capricious and

7 an abuse of discretion because Defendants have relied on factors that Congress did not intend by

8 adding these conditions to JAG funding.

9

108. For the reasons discussed herein, the access and notification conditions in the JAG

10 solicitation are unlawful and shall be set aside under 5 U.S.C. § 706 for being arbitrary and

11 capricious and an abuse of discretion.

12

FIFTH CLAIM FOR RELIEF

13

DECLARATORY RELIEF

14

109. Plaintiff incorporates the allegations of the preceding paragraphs by reference.

15

110. An actual controversy between California and Defendants exists as to whether the

16 State of California and its localities comply with the access and notification conditions on the

17 basis of the TRUST and TRUTH Acts. Although California law actually complies with an

18 interpretation of the conditions, Defendants’ statements indicate that they will determine that

19 California does not comply with the conditions.

20

111. Plaintiff is entitled to a declaration that the TRUST and TRUTH Acts do not violate

21 the access and notification conditions, and thus, should not be a basis for withholding,

22 terminating, disbarring, or making ineligible federal funding from the State and its political

23 subdivisions.

24

PRAYER FOR RELIEF

25

26

WHEREFORE, Plaintiff, including the State of California, respectfully that this Court enter

27 judgment in its favor, and grant the following relief:

28
24
Complaint for Declaratory and Injunctive Relief

Case 3:17-cv-04701-MEJ Document 1 Filed 08/14/17 Page 25 of 25

1

1. Issue a declaration that the access and notification conditions in the JAG Solicitations

2 are unconstitutional and/or unlawful because (a) they exceed the Congressional authority

3 conferred to the Executive Branch; (b) to the extent there is Congressional authorization, exceeds

4 the Congress’s spending powers under Article I of the Constitution; and (c) they violate the

5 Administrative Procedures Act;

6

2. Permanently enjoin Defendants from using the access and notification conditions as

7 restrictions for JAG funding;

8

3. Permanently enjoin Defendants from withholding, terminating, disbarring or making

9 any state entity or local jurisdiction ineligible for JAG funding on account of the TRUTH Act or

10 any law or policy that provides procedural protections to inmates about their rights;

11

4. Permanently enjoin Defendants from withholding, terminating, disbarring, or making

12 any state entity or local jurisdiction ineligible for JAG funding on account of the TRUST Act or

13 any law or policy that limits compliance with detainer requests;

14

5. In the alternative, declare that the State’s TRUST and TRUTH Acts comply with the

15 access and notification conditions in the JAG Solicitations; and

16

6. Award the State costs and grant such other relief as the Court may deem just and

17 proper.

18 Dated: August 14, 2017
19 20 21 22 23 24 25 26
OK2017900935
27

Respectfully submitted,
XAVIER BECERRA Attorney General of California ANGELA SIERRA Senior Assistant Attorney General MICHAEL NEWMAN Supervising Deputy Attorney General SARAH BELTON LISA EHRLICH Deputy Attorneys General
/s/ Lee Sherman
LEE SHERMAN Deputy Attorney General Attorneys for the State of California

28
25
Complaint for Declaratory and Injunctive Relief

Case 3:17-cv-04701-MEJ Document 1-1 Filed 08/14/17 Page 1 of 45
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Case 3:17-cv-04701-MEJ Document 1-1 Filed 08/14/17 Page 2 of 45

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Case 3:17-cv-04701-MEJ Document 1-1 Filed 08/14/17 Page 3 of 45
This deadline does not apply to the certification regarding compliance with 8 U.S.C. § 1373. As explained below, a State may not validly accept an award, however, unless that certification is submitted to OJP on or before the day the State submits the signed award acceptance documents. For additional information, see How to Apply in Section D. Application and Submission Information.
Contact Information
For technical assistance with submitting an application, contact the Grants Management System Support Hotline at 888-549-9901, option 3, or via email at GMS.HelpDesk@usdoj.gov. The GMS Support Hotline operates 24 hours a day, 7 days a week, including on federal holidays. An applicant that experiences unforeseen GMS technical issues beyond its control that prevent it from submitting its application by the deadline must email the National Criminal Justice Reference Service (NCJRS) Response Center at grants@ncjrs.gov within 24 hours after the application deadline in order to request approval to submit its application. Additional information on reporting technical issues appears under “Experiencing Unforeseen GMS Technical Issues” in the How to Apply in Section D. Application and Submission Information. For assistance with any other requirement of this solicitation, applicants may contact the NCJRS Response Center by telephone at 1-800-851-3420; via TTY at 301-240-6310 (hearing impaired only); by email at grants@ncjrs.gov; by fax to 301-240-5830, or by web chat at https://webcontact.ncjrs.gov/ncjchat/chat.jsp. The NCJRS Response Center hours of operation are 10:00 a.m. to 6:00 p.m. eastern time, Monday through Friday, and 10:00 a.m. to 8:00 p.m. eastern time on the solicitation close date. Applicants also may contact the appropriate BJA State Policy Advisor.
Grants.gov number assigned to this solicitation: BJA-2017-11360 Release date: July 25, 2017
2

Case 3:17-cv-04701-MEJ Document 1-1 Filed 08/14/17 Page 4 of 45
Contents
A. Program Description................................................................................................... 5 Overview ......................................................................................................................5 Program-Specific Information.......................................................................................5 Permissible uses of JAG Funds – In general ............................................................5 Limitations on the use of JAG funds .........................................................................6 State obligations regarding use of JAG funds and units of local government ...........8 Required compliance with applicable federal laws....................................................9 Potential funding reductions for noncompliance with PREA and SORNA.................9 BJA Areas of Emphasis ..........................................................................................10 Goals, Objectives, and Deliverables ..........................................................................11 Evidence-Based Programs or Practices.....................................................................12
B. Federal Award Information ....................................................................................... 12 Type of Award ............................................................................................................13 Financial Management and System of Internal Controls............................................14 Budget and Financial Information...............................................................................14 Cost Sharing or Match Requirement ..........................................................................15 Pre-Agreement Costs (also known as Pre-award Costs) ...........................................15 Prior Approval, Planning, and Reporting of Conference/Meeting/Training Costs.......15 Costs Associated with Language Assistance (if applicable).......................................15
C. Eligibility Information ................................................................................................ 16 D. Application and Submission Information .................................................................. 16
What an Application Should Include...........................................................................16 How to Apply..............................................................................................................28 E. Application Review Information ................................................................................ 30 Review Process .........................................................................................................30 F. Federal Award Administration Information................................................................ 31 Federal Award Notices...............................................................................................31 Statutory and Regulatory Requirements; Award Conditions ......................................31 General Information about Post-Federal Award Reporting Requirements .................32 G. Federal Awarding Agency Contact(s) ...................................................................... 33 H. Other Information ..................................................................................................... 33 Freedom of Information Act and Privacy Act (5 U.S.C. § 552 and 5 U.S.C. § 552a)..33 Provide Feedback to OJP ..........................................................................................34 Application Checklist..................................................................................................... 35
3

Case 3:17-cv-04701-MEJ Document 1-1 Filed 08/14/17 Page 5 of 45 Appendix I..................................................................................................................... 37 Appendix II.................................................................................................................... 39 Appendix III................................................................................................................... 41 Appendix IV .................................................................................................................. 43
4

Case 3:17-cv-04701-MEJ Document 1-1 Filed 08/14/17 Page 6 of 45
Edward Byrne Memorial Justice Assistance Grant Program
FY 2017 State Solicitation CFDA #16.738
A. Program Description
Overview
The Edward Byrne Memorial Justice Assistance Grant (JAG) Program is the primary provider of federal criminal justice funding to States and units of local government. BJA will award JAG program funds to eligible States under this FY 2017 JAG Program State Solicitation. (A separate solicitation will be issued for applications to BJA directly from units of local government.)
Statutory Authority: The JAG program statute is Subpart I of Part E of Title I of the Omnibus Crime Control and Safe Streets Act of 1968. Title I of the “Omnibus Act” generally is codified at Chapter 26 of Title 42 of the United States Code; the JAG program statute is codified at 42 U.S.C. §§ 3750-3758. See also 28 U.S.C. § 530C(a).
Program-Specific Information
Permissible uses of JAG Funds – In general
In general, JAG funds awarded to a State under this FY 2017 solicitation may be used to provide additional personnel, equipment, supplies, contractual support, training, technical assistance, and information systems for criminal justice, including for any one or more of the following—
• Law enforcement programs. • Prosecution and court programs. • Prevention and education programs. • Corrections and community corrections programs. • Drug treatment and enforcement programs. • Planning, evaluation, and technology improvement programs. • Crime victim and witness programs (other than compensation). • Mental health programs and related law enforcement and corrections programs,
including behavioral programs and crisis intervention teams.
Under the JAG program, States may use award funds for broadband deployment and adoption activities as they relate to criminal justice activities.
5

Case 3:17-cv-04701-MEJ Document 1-1 Filed 08/14/17 Page 7 of 45
Limitations on the use of JAG funds
Prohibited and controlled uses of funds. JAG funds may not be used (whether directly or indirectly) for any purpose prohibited by federal statute or regulation, including those purposes specifically prohibited by the JAG program statute as set out at 42 U.S.C. § 3751(d):
(1) Any security enhancements or any equipment to any nongovernmental entity that is not engaged in criminal justice or public safety.
(2) Unless the Attorney General certifies that extraordinary and exigent circumstances exist that make the use of such funds to provide such matters essential to the maintenance of public safety and good order—
(A) vehicles (excluding police cruisers), vessels (excluding police boats), or aircraft (excluding police helicopters);
(B) luxury items; (C) real estate; (D) construction projects (other than penal or correctional institutions); or (E) any similar matters.
For additional information on expenditures prohibited under JAG, as well as expenditures that are permitted but “controlled,” along with the process for requesting approval regarding controlled items, refer to the JAG Prohibited and Controlled Expenditures Guidance. Information also appears in the JAG FAQs.
Cap on use of JAG award funds for administrative costs – A State may use up to 10 percent of a JAG award, including up to 10 percent of any earned interest, for costs associated with administering the award.
Prohibition of supplanting; no use of JAG funds as “match” – JAG funds may not be used to supplant State or local funds, but must be used to increase the amounts of such funds that would, in the absence of Federal funds, be made available for law enforcement activities. See the JAG FAQs on BJA’s JAG web page for examples of supplanting.
Although supplanting is prohibited, as discussed under “What An Application Should Include,” the leveraging of federal funding is encouraged.
Absent specific federal statutory authority to do so, JAG award funds may not be used as “match” for the purposes of other federal awards.
Other restrictions on use of funds. If a State chooses to use its FY 2017 JAG funds for particular, defined types of expenditures, it must satisfy certain preconditions.
 Body-Worn Cameras (BWC)
A State that proposes to use FY 2017 JAG award funds to purchase BWC equipment, or to implement or enhance BWC programs, must provide to OJP a certification(s) that the State (or, if applicable, that any unit of local government that will receive funds from the State for BWC purposes) has policies and procedures in place related to BWC equipment usage, data storage and access, privacy considerations, training, etc. The certification can be found at https://www.bja.gov/Funding/BodyWornCameraCert.pdf.
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A State that proposes to use JAG funds for BWC-related expenses (including through a unit of local government receiving funds from the State) will have funds withheld until the required certification is submitted and approved by OJP.
The BJA BWC Toolkit provides model BWC policies and best practices to assist departments in implementing BWC programs.
Apart from the JAG program, BJA provides funds under the Body-Worn Camera Policy and Implementation Program (BWC Program). The BWC Program allows jurisdictions to develop and implement policies and practices required for effective program adoption, and address program factors including the purchase, deployment, and maintenance of camera systems and equipment; data storage and access; and privacy considerations. Interested States may wish to refer to the BWC web page for more information. States should note, however, that JAG funds may not be used as any part of the 50 percent match required by the BWC Program.
 Body Armor
Ballistic-resistant and stab-resistant body armor can be funded through the JAG Program, as well as through BJA’s Bulletproof Vest Partnership (BVP) Program. The BVP Program is designed to provide a critical resource to State and local law enforcement through the purchase of ballistic-resistant and stab-resistant body armor. For more information on the BVP Program, including eligibility and application, refer to the BVP web page. States should note, however, that JAG funds may not be used as any part of the 50 percent match required by the BVP Program.
Body armor purchased with JAG funds may be purchased at any threat level, make, or model from any distributor or manufacturer, as long as the body armor has been tested and found to comply with the latest applicable National Institute of Justice (NIJ) ballistic or stab standards. In addition, body armor purchased must be made in the United States.
As is the case in the BVP Program, States that propose to purchase body armor with JAG funds must certify that law enforcement agencies receiving body armor have a written “mandatory wear” policy in effect. FAQs related to the mandatory wear policy and certifications can be found at https://www.bja.gov/Funding/JAGFAQ.pdf. This policy must be in place for at least all uniformed officers before any FY 2017 funding can be used by the State for body armor. There are no requirements regarding the nature of the policy other than it being a mandatory wear policy for all uniformed officers while on duty. The certification must be signed by the Authorized Representative and must be attached to the application, if proposed as part of the application. If the State proposes to change project activities to utilize JAG funds to purchase body armor after the award is accepted, the State must submit the signed certification to BJA at that time. A mandatory wear concept and issues paper and a model policy are available by contacting the BVP Customer Support Center at vests@usdoj.gov or toll free at 1–877– 758–3787. The certification form related to mandatory wear can be found at: www.bja.gov/Funding/BodyArmorMandatoryWearCert.pdf.
 DNA Testing of Evidentiary Materials and Upload of DNA Profiles to a Database
If JAG program funds will be used for DNA testing of evidentiary materials, any resulting eligible DNA profiles must be uploaded to the Combined DNA Index System (CODIS,
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the national DNA database operated by the FBI) by a government DNA lab with access to CODIS. No profiles generated with JAG funding may be entered into any other nongovernmental DNA database without prior express written approval from BJA.
In addition, funds may not be used for purchase of DNA equipment and supplies when the resulting DNA profiles from such technology are not accepted for entry into CODIS.
 Interoperable Communication
States (including subrecipients) that use FY 2017 JAG funds to support emergency communications activities (including the purchase of interoperable communications equipment and technologies such as voice-over-internet protocol bridging or gateway devices, or equipment to support the build out of wireless broadband networks in the 700 MHz public safety band under the Federal Communications Commission [FCC] Waiver Order) should review FY 2017 SAFECOM Guidance. The SAFECOM Guidance is updated annually to provide current information on emergency communications policies, eligible costs, best practices, and technical standards for State, local, tribal, and territorial grantees investing federal funds in emergency communications projects. Additionally, emergency communications projects should support the Statewide Communication Interoperability Plan (SCIP) and be coordinated with the full-time Statewide Interoperability Coordinator (SWIC) in the State of the project. As the central coordination point for their State’s interoperability effort, the SWIC plays a critical role, and can serve as a valuable resource. SWICs are responsible for the implementation of the SCIP through coordination and collaboration with the emergency response community. The U.S. Department of Homeland Security Office of Emergency Communications maintains a list of SWICs for each of the States and territories. Contact OEC@hq.dhs.gov. All communications equipment purchased with FY 2017 JAG program funding should be identified during quarterly performance metrics reporting.
In order to promote information sharing and enable interoperability among disparate systems across the justice and public safety community, OJP requires the recipient to comply with DOJ's Global Justice Information Sharing Initiative guidelines and recommendations for this particular grant. Recipients must conform to the Global Standards Package (GSP) and all constituent elements, where applicable, as described at: https://www.it.ojp.gov/gsp_grantcondition. Recipients must document planned approaches to information sharing and describe compliance to the GSP and appropriate privacy policy that protects shared information, or provide detailed justification for why an alternative approach is recommended.
State obligations regarding use of JAG funds and units of local government
A State that applies for and receives an FY 2017 JAG award must—
 Pass-through a predetermined percentage of funds to “units of local government.” (For purposes of the JAG program, a “unit of local government” includes a city, county, township, town, and certain federally-recognized Indian tribes.) This predetermined percentage (often referred to as the “variable pass-through” or VPT) is calculated by OJP's Bureau of Justice Statistics (BJS), based on the total criminal justice expenditures by the State and its units of local government. The variable pass-through percentages that will apply to an FY 2017 award to a recipient State can be found at: https://www.bja.gov/jag/pdfs/VPT-for-SAAs-updated-June-2017.pdf. (If a State believes
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the VPT percentage has been calculated incorrectly, the State may provide pertinent, verifiable data to BJA and ask OJP to reconsider.)
In certain circumstances, some or all of a project administered by a recipient State may count as part of the variable pass-through. In general, a State may do so to the extent that— (1) the State-administered project will directly benefit a unit of local government, and (2) one unit (or more) of local government voluntarily agrees and acknowledges in an appropriate written certification that the specified amount of State-administered funds would directly benefit the unit of local government in question and agrees that funding the project at the State level is in the best interests of the unit of local government. See the JAG FAQs for an example.
 Appropriately use or distribute the amount of funds that are added to the State’s FY 2017 award because certain units of local government within the State are ineligible for a direct FY 2017 award of JAG funds because of their small size. (These small-size units of local government sometimes are referred to as “less-than-$10,000 jurisdictions.”) The State must provide these additional funds included in its FY 2017 award to State police departments that provide criminal justice services to the “lessthan-$10,000 jurisdictions” within the State and/or subaward the funds to such jurisdictions.
• Ensure that any court disposition or other records generated by JAG-funded programs are made available to State repositories if they are relevant to the National Instant Background Check System (NICS) determinations.
Required compliance with applicable federal laws
By law, the chief executive (e.g., the governor) of each State that applies for an FY 2017 JAG award must certify that the State will “comply with all provisions of [the JAG program statute] and all other applicable Federal laws.” To satisfy this requirement, each State applicant must submit two properly-executed certifications, using the forms shown at Appendix I and II.
All applicants should understand that OJP awards, including certifications provided in connection with such awards, are subject to review by DOJ, including by OJP and by the DOJ Office of the Inspector General. Applicants also should understand that a materially false, fictitious, or fraudulent statement (or concealment or omission of a material fact) in a certification submitted to OJP in support of an application may be the subject of criminal prosecution, and also may result in civil penalties and administrative remedies for false claims or otherwise. Administrative remedies that may be available to OJP with respect to an FY 2017 award include suspension or termination of the award, placement on the DOJ high-risk grantee list, disallowance of costs, and suspension or debarment of the recipient.
Potential funding reductions for noncompliance with PREA and SORNA
Prison Rape Elimination Act of 2003 (PREA). In 2012, DOJ published National PREA Standards, which were promulgated to prevent, detect, and respond to sexual victimization and abuse in confinement settings. The PREA Standards are set out at 28 C.F.R. Part 115, and apply to confinement facilities including adult prisons and jails, juvenile facilities, police lockups, and community corrections facilities.
Under PREA, if a State’s chief executive (e.g., governor) does not certify full compliance with the National PREA Standards, the State is subject to the loss of 5 percent of certain DOJ grant
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funds, including JAG award funds, unless: (1) the chief executive submits an assurance to DOJ that no less than 5 percent of such funds will be used solely for the purpose of enabling the State to achieve and certify full compliance with the Standards in future years; or (2) the chief executive requests that the affected funds be held in abeyance by DOJ. See 42 U.S.C. § 15607(e)(2).
A reduction of a JAG award to a State under the provisions of PREA will not affect the portion of the JAG award that is reserved for local jurisdictions.
For additional information concerning PREA implementation, send inquiries to the PREA Management Office at PREACompliance@usdoj.gov and/or review the PREA FAQs.
Sex Offender Registration and Notification Act (SORNA). SORNA, which is Title I of the Adam Walsh Child Protection and Safety Act of 2006, mandates a 10-percent reduction in JAG award to a “State” that has failed to substantially implement SORNA. For such States, the 10-percent reduction has been applied to JAG awards since FY 2012 and will continue to be applied in each subsequent year until the JAG recipient has substantially implemented SORNA. Further, States that have substantially implemented SORNA have an ongoing obligation to maintain that status each year. A JAG reduction will be applied each year a jurisdiction has failed to have substantially implemented SORNA.
A reduction of a JAG award to a State under the provisions of SORNA will not affect the portion of the JAG award that is reserved for local jurisdictions.
For additional information regarding SORNA implementation, including requirements and a list of States that will be affected in FY 2017 by the 10-percent reduction to JAG awards, contact Samantha Opong with the OJP Office of Sex Offender Sentencing, Monitoring, Apprehending, Registering, and Tracking (SMART Office) at Samantha.Opong@usdoj.gov or 202-514-9320. Additional SORNA guidance can be found within the SORNA FAQs.
BJA Areas of Emphasis
BJA recognizes that there are significant pressures on State and local criminal justice systems. In these challenging times, shared priorities and leveraged resources can make a significant impact. BJA intends to focus much of its work as a component of OJP on the areas of emphasis described below, and encourages each State recipient of an FY 2017 JAG award to join us in addressing these challenges.
Reducing Gun Violence – Gun violence has touched nearly every State and local government in America. While our nation has made great strides in reducing violent crime, some municipalities and regions continue to experience unacceptable levels of violent crime at rates far in excess of the national average. BJA encourages States to invest JAG funds in programs to combat gun violence, enforce existing firearms laws, and improve the process for ensuring that persons prohibited from purchasing guns are prevented from doing so, by enhancing reporting to the FBI’s NICS.
National Incident-Based Reporting System (NIBRS) – The FBI has formally announced its intentions to establish NIBRS as the law enforcement (LE) crime data reporting standard for the nation. The transition to NIBRS will provide a more complete and accurate picture of crime at the national, State, and local level. Once this transition is complete, the FBI will no longer collect summary data and will accept data only in the NIBRS format. Also, once the transition is
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complete, JAG award amounts will be calculated on the basis of submitted NIBRS data. Transitioning all law enforcement agencies to NIBRS is the first step in gathering more comprehensive crime data. BJA encourages State recipients of FY 2017 JAG awards to use JAG funds to expedite the transition to NIBRS.
Officer Safety and Wellness – The issue of law enforcement safety and wellness is an important priority for the Department of Justice. Preliminary data compiled by the National Law Enforcement Officers Memorial Fund indicates that there were 135 line-of-duty law enforcement deaths in 2016 – the highest level in the past five years, and a 10 percent increase from 2015 (123 deaths).
Firearms-related deaths continued to be the leading cause of death (64), increasing 56 percent from 2015 (41). Of particular concern is that, of the 64 firearms-related deaths, 21 were as a result of ambush-style attacks representing the highest total in more than two decades. Trafficrelated deaths continued to rise in 2016 with 53 officers killed, a 10 percent increase from 2015 (48 deaths). Additionally, there were 11 job-related illness deaths in 2016, mostly heart attacks.
BJA sees a vital need to focus not only on tactical officer safety concerns, but also on health and wellness as they affect officer performance and safety. It is important for law enforcement to have the tactical skills necessary, and also be physically and mentally well, to perform, survive, and be resilient in the face of the demanding duties of the profession. BJA encourages States to use JAG funds to address these needs by providing training, such as paying for tuition and travel expenses related to attending trainings such as the VALOR training, as well as funding for health and wellness programs for law enforcement officers.
Border Security – The security of the United States borders is critically important to the reduction and prevention of transnational drug-trafficking networks and combating all forms of human trafficking networks within the United States (sex and labor trafficking of foreign nationals and U.S. citizens of all sexes and ages). These smuggling operations on both sides of the border contribute to a significant increase in violent crime and United States deaths from dangerous drugs. Additionally, illegal immigration continues to place a significant strain on federal, State, and local resources—particularly those agencies charged with border security and immigration enforcement—as well as the local communities into which many of the illegal immigrants are placed. BJA encourages States to use JAG funds to support law enforcement hiring, training, and technology enhancement in the area of border security.
Collaborative Prosecution – BJA supports strong partnerships between prosecutors and police as a mean to improve case outcomes and take violent offenders off the street. BJA strongly encourages State and local law enforcement to foster strong partnerships with prosecutors to adopt new collaborative strategies aimed at combating increases in crime, particularly violent crime. (BJA's “Smart Prosecution” Initiative is a related effort by OJP to promote partnerships between prosecutors and researchers to develop and deliver effective, data-driven, evidencebased strategies to solve chronic problems and fight crime.)
Goals, Objectives, and Deliverables
In general, the FY 2017 JAG State program is designed to provide additional personnel, equipment, supplies, contractual support, training, technical assistance, and information systems for criminal justice. Although the JAG State program provides assistance directly to States, through pass-through (and similar) requirements, the JAG State program also is designed to assist units of local government with respect to criminal justice.
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As discussed in more detail below, a State that receives an FY 2017 JAG award will be required to make various types of reports and to submit data related to performance measures and accountability. The Goals, Objectives and Deliverables are directly related to the JAG Progam accountability measures at https://bjapmt.ojp.gov/help/jagdocs.html.
Evidence-Based Programs or Practices
OJP strongly emphasizes the use of data and evidence in policy making and program development in criminal justice, juvenile justice, and crime victim services. OJP is committed to:
• Improving the quantity and quality of evidence OJP generates. • Integrating evidence into program, practice, and policy decisions within OJP and the
field. • Improving the translation of evidence into practice.
OJP considers programs and practices to be evidence-based when their effectiveness has been demonstrated by causal evidence, generally obtained through one or more outcome evaluations. Causal evidence documents a relationship between an activity or intervention (including technology) and its intended outcome, including measuring the direction and size of a change, and the extent to which a change may be attributed to the activity or intervention. Causal evidence depends on the use of scientific methods to rule out, to the extent possible, alternative explanations for the documented change. The strength of causal evidence, based on the factors described above, will influence the degree to which OJP considers a program or practice to be evidence-based. The OJP CrimeSolutions.gov website is one resource that applicants may use to find information about evidence-based programs in criminal justice, juvenile justice, and crime victim services.
A useful matrix of evidence-based policing programs and strategies is available through the Center for Evidence-Based Crime Policy at George Mason University. BJA offers a number of program models designed to effectively implement promising and evidence-based strategies through the BJA “Smart Suite” of programs including Smart Policing, Smart Supervision, Smart Pretrial, Smart Defense, Smart Prosecution, Smart Reentry, and others (see https://www.bja.gov/Programs/CRPPE/smartsuite.html). BJA encourages States to use JAG funds to support these “smart on crime” strategies, including effective partnerships with universities and research partners and with non-traditional criminal justice partners.
BJA Success Stories The BJA Success Stories web page features projects that have demonstrated success or shown promise in reducing crime and positively impacting communities. This web page will be a valuable resource for States, localities, territories, tribes, and criminal justice professionals who seek to identify and learn about JAG and other successful BJA-funded projects linked to innovation, crime reduction, and evidence-based practices. BJA strongly encourages the recipient to submit success stories annually (or more frequently).
If a State has a Success Story it would like to submit, it may be submitted through My BJA account, using “add a Success Story” and the Success Story Submission form. Register for a My BJA account using this registration link.
B. Federal Award Information
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BJA expects to make up to 56 awards of up to $17.7 million, with an estimated total amount awarded of up to $174.4 million.
BJA plans to make awards for a four-year period of performance, to begin on October 1, 2016. An extension should not exceed 12 months. An extension beyond this period may be made on a case-by-case basis at the discretion of BJA and must be requested via GMS no less than 30 days prior to the end of the period for performance.
The expected allocations by State for the FY 2017 JAG program can be found at: https://www.bja.gov/Funding/17JAGStateAllocations.pdf.
All awards are subject to the availability of appropriated funds and to any modifications or additional requirements that may be imposed by statute.
Type of Award BJA expects that any award under this solicitation will be in the form of a grant. See Statutory and Regulatory Requirements; Award Conditions, under Section F. Federal Award Administration Information, for a brief discussion of important statutes, regulations, and award conditions that apply to many (or in some cases, all) OJP grants.
JAG awards are based on a statutory formula as described below:
Once each fiscal year’s overall JAG Program funding level is determined, BJA works with BJS to begin a four-step grant award calculation process, which, in general, consists of:
1. Computing an initial JAG allocation for each State, based on its share of violent crime and population (weighted equally).
2. Reviewing the initial JAG allocation amount to determine if the State allocation is less than the minimum award amount defined in the JAG legislation (0.25 percent of the total). If this is the case, the State is funded at the minimum level, and the funds required for this are deducted from the overall pool of JAG funds. Each of the remaining States receive the minimum award plus an additional amount based on its share of violent crime and population.
3. Dividing each State’s final award amount (except for the territories and District of Columbia) between the State and its units of local governments at a rate of 60 and 40 percent, respectively.
4. Determining unit of local government award allocations, which are based on their proportion of the State’s 3-year violent crime average. If the “eligible award amount” for a particular unit of local government as determined on this basis is $10,000 or more, then the unit of local government is eligible to apply directly to OJP (under the JAG Local solicitation) for a JAG award. If the “eligible award amount” to a particular unit of local government as determined on this basis would be less than $10,000, however, the funds are not made available for a direct award to that particular unit of local government, but instead are added to the amount that otherwise would have been awarded to the State. (The State's obligations with respect to this additional amount for the “less-than-$10,000 jurisdictions” are summarized above.)
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Financial Management and System of Internal Controls Award recipients and subrecipients (including recipients or subrecipients that are pass-through entities1) must, as described in the Part 200 Uniform Requirements2 as set out at 2 C.F.R. 200.303:
(a) Establish and maintain effective internal control over the Federal award that provides reasonable assurance that [the recipient (and any subrecipient)] is managing the Federal award in compliance with Federal statutes, regulations, and the terms and conditions of the Federal award. These internal controls should be in compliance with guidance in “Standards for Internal Control in the Federal Government” issued by the Comptroller General of the United States and the “Internal Control Integrated Framework”, issued by the Committee of Sponsoring Organizations of the Treadway Commission (COSO).
(b) Comply with Federal statutes, regulations, and the terms and conditions of the Federal awards.
(c) Evaluate and monitor [the recipient’s (and any subrecipient’s)] compliance with statutes, regulations, and the terms and conditions of Federal awards.
(d) Take prompt action when instances of noncompliance are identified including noncompliance identified in audit findings.
(e) Take reasonable measures to safeguard protected personally identifiable information and other information the Federal awarding agency or pass-through entity designates as sensitive or [the recipient (or any subrecipient)] considers sensitive consistent with applicable Federal, State, local, and tribal laws regarding privacy and obligations of confidentiality.
To help ensure that applicants understand administrative requirements and cost principles, OJP encourages prospective applicants to enroll, at no charge, in the DOJ Grants Financial Management Online Training, available here.
Budget and Financial Information
Trust Fund – SAAs may draw down JAG funds either in advance or on a reimbursement basis. To draw down in advance, a trust fund must be established in which to deposit the funds. The trust fund may or may not be an interest-bearing account. If subrecipients draw down JAG funds in advance, they also must establish a trust fund in which to deposit funds.
Tracking and reporting regarding JAG funds used for State administrative costs – As indicated earlier, a State may use up to 10 percent of a JAG award, including up to 10 percent of any earned interest, for costs associated with administering the award. Administrative costs (when utilized) must be tracked separately; a recipient must report in separate financial status reports
1 For purposes of this solicitation, the phrase “pass-through entity” includes any recipient or subrecipient that provides a subaward ("subgrant”) to carry out part of the funded award or program. 2 The "Part 200 Uniform Requirements” refers to the DOJ regulation at 2 C.F.R Part 2800, which adopts (with certain modifications) the provisions of 2 C.F.R. Part 200.
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(SF-425) those expenditures that specifically relate to each particular JAG Award during any particular reporting period.
No commingling. Both the State recipient and all subrecipients of JAG funds are prohibited from commingling funds on a program-by-program or project-by-project basis. For this purpose, use of the administrative JAG funds to perform work across all active awards in any one year is not considered comingling.
Cost Sharing or Match Requirement The JAG program does not require a match.
For additional cost sharing and match information, see the DOJ Grants Financial Guide.
Pre-Agreement Costs (also known as Pre-award Costs) Pre-agreement costs are costs incurred by the applicant prior to the start date of the period of performance of the grant award.
OJP does not typically approve pre-agreement costs. An applicant must request and obtain the prior written approval of OJP for any such costs. All such costs incurred prior to award and prior to approval of the costs are incurred at the sole risk of the applicant. (Generally, no applicant should incur project costs before submitting an application requesting federal funding for those costs.)
Should there be extenuating circumstances that make it appropriate for OJP to consider approving pre-agreement costs, the applicant may contact the point of contact listed on the title page of this solicitation for the requirements concerning written requests for approval. If approved in advance by OJP, award funds may be used for pre-agreement costs, consistent with the recipient’s approved budget and applicable cost principles. See the section on “Costs Requiring Prior Approval” in the DOJ Grants Financial Guide for more information.
Prior Approval, Planning, and Reporting of Conference/Meeting/Training Costs OJP strongly encourages every applicant that proposes to use award funds for any conference-, meeting-, or training-related activity (or similar event) to review carefully—before submitting an application—the OJP and DOJ policy and guidance on approval, planning, and reporting of such events, available at https://www.ojp.gov/financialguide/DOJ/PostawardRequirements/chapter3.10a.htm.
OJP policy and guidance (1) encourage minimization of conference, meeting, and training costs; (2) require prior written approval (which may affect project timelines) of most conference, meeting, and training costs for cooperative agreement recipients, as well as some conference, meeting, and training costs for grant recipients; and (3) set cost limits, which include a general prohibition of all food and beverage costs.
Costs Associated with Language Assistance (if applicable) If an applicant proposes a program or activity that would deliver services or benefits to individuals, the costs of taking reasonable steps to provide meaningful access to those services or benefits for individuals with limited English proficiency may be allowable. Reasonable steps to provide meaningful access to services or benefits may include interpretation or translation services, where appropriate.
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For additional information, see the “Civil Rights Compliance” section under “Overview of Legal Requirements Generally Applicable to OJP Grants and Cooperative Agreements - FY 2017 Awards” in the OJP Funding Resource Center.
C. Eligibility Information
For information on eligibility, see the title page of this solicitation.
Note that, as discussed in more detail below, the certification regarding compliance with 8 U.S.C. § 1373 must be executed and submitted before a State can make a valid award acceptance. Also, a State may not receive award funds (and its award will include a condition that withholds funds) until it submits a properly-executed “Certifications and Assurances by Chief Executive of Applicant Government.”
D. Application and Submission Information
What an Application Should Include This section describes in detail what an application should include. An applicant should anticipate that if it fails to submit an application that contains all of the specified elements, it may negatively affect the review of its application; and, should a decision be made to make an award, it may result in the inclusion of award conditions that preclude the recipient from accessing or using award funds until the recipient satisfies the conditions and OJP makes the funds available.
An applicant may combine the Budget Narrative and the Budget Detail Worksheet in one document. If an applicant submits only one budget document, however, it must contain both narrative and detail information. Please review the “Note on File Names and File Types” under How to Apply to be sure applications are submitted in permitted formats.
OJP strongly recommends that applicants use appropriately descriptive file names (e.g., “Program Narrative,” “Budget Detail Worksheet and Budget Narrative,” “Timelines,” “Memoranda of Understanding,” “Résumés”) for all attachments. Also, OJP recommends that applicants include résumés in a single file.
In general, if a State fails to submit required information or documents, OJP either will return the State's application in the Grants Management System (GMS) for submission of the missing information or documents, or will attach a condition to the award that will withhold award funds until the necessary information and documents are submitted. (As discussed elsewhere in this solicitation, the certification regarding compliance with 8 U.S.C. § 1373 – which is set out at Appendix II – will be handled differently. Unless and until that certification is submitted, the State will be unable to make a valid acceptance of the award.)
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1. Information to Complete the Application for Federal Assistance (SF-424)
The SF-424 is a required standard form used as a cover sheet for submission of preapplications, applications, and related information. GMS takes information from the applicant’s profile to populate the fields on this form.
To avoid processing delays, an applicant must include an accurate legal name on its SF424. Current OJP award recipients, when completing the field for “Legal Name,” should use the same legal name that appears on the prior year award document, which is also the legal name stored in OJP’s financial system. On the SF-424, enter the Legal Name in box 5 and Employer Identification Number (EIN) in box 6 exactly as it appears on the prior year award document. An applicant with a current, active award(s) must ensure that its GMS profile is current. If the profile is not current, the applicant should submit a Grant Adjustment Notice updating the information on its GMS profile prior to applying under this solicitation.
A new applicant entity should enter the Official Legal Name and address of the applicant entity in box 5 and the EIN in box 6 of the SF-424.
Intergovernmental Review: This solicitation (“funding opportunity”) is within the scope of Executive Order 12372, concerning State opportunities to coordinate applications for federal financial assistance. See 28 C.F.R. Part 30. An applicant may find the names and addresses of State Single Points of Contact (SPOCs) at the following website: https://www.whitehouse.gov/omb/grants_spoc/. If the State appears on the SPOC list, the applicant must contact the State SPOC to find out about, and comply with, the State’s process under E.O. 12372. In completing the SF-424, an applicant whose State appears on the SPOC list is to make the appropriate selection in response to question 19 once the applicant has complied with its State E.O. 12372 process. (An applicant whose State does not appear on the SPOC list should answer question 19 by selecting the response that the “Program is subject to E.O. 12372 but has not been selected by the State for review.”)
2. Project Abstract
Applications should include a high-quality project abstract that summarizes the proposed project in 400 words or less. Project abstracts should be:
• Written for a general public audience. • Submitted as a separate attachment with “Project Abstract” as part of its file name. • Single-spaced, using a standard 12-point font (Times New Roman) with 1-inch margins. • Include applicant name, title of the project, a brief description of the problem to be
addressed and the targeted area/population, project goals and objectives, a description of the project strategy, any significant partnerships, and anticipated outcomes. • Identify up to 10 project identifiers that would be associated with proposed project activities. The list of identifiers can be found at www.bja.gov/funding/JAGIdentifiers.pdf.
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3. Program Narrative
The following sections should be included as part of the program narrative3:
a. Statement of the Problem – Identify the State's strategy/funding priorities for the FY 2017 JAG funds, the subgrant award process and timeline, and a description of the programs to be funded over the 4-year grant period. States are strongly encouraged to prioritize the funding on evidence-based projects.
b. Project Design and Implementation – Describe the State's strategic planning process that guides its priorities and funding strategy. This should include a description of how local communities are engaged in the planning process and the data and analysis utilized to support the plan; it should identify the stakeholders currently participating in the strategic planning process, the gaps in the State's needed resources for criminal justice purposes, and how JAG funds will be coordinated with State and related justice funds.
c. Capabilities and Competencies – Describe any additional strategic planning/coordination efforts in which the State participates with other criminal justice criminal/juvenile justice agencies in the State.
d. Plan for Collecting the Data Required for this Solicitation’s Performance Measures – OJP will require each successful applicant to submit specific performance measures data as part of its reporting under the award (see “General Information about PostFederal Award Reporting Requirements” in Section F. Federal Award Administration Information). The performance measures correlate to the goals, objectives, and deliverables identified under “Goals, Objectives, and Deliverables” in Section A. Program Description. Post award, recipients will be required to submit quarterly performance metrics through BJA’s PMT, located at https://bjapmt.ojp.gov. The application should describe the applicant's plan for collection of all of the performance measures data listed in the JAG Program accountability measures at: https://bjapmt.ojp.gov/help/jagdocs.html.
BJA does not require applicants to submit performance measures data with their application. Performance measures are included as an alert that BJA will require successful applicants to submit specific data as part of their reporting requirements. For the application, applicants should indicate an understanding of these requirements and discuss how they will gather the required data, should they receive funding.
Note on Project Evaluations An applicant that proposes to use award funds through this solicitation to conduct project evaluations should be aware that certain project evaluations (such as systematic investigations designed to develop or contribute to generalizable knowledge) may constitute “research” for purposes of applicable DOJ human subjects protection regulations. However, project evaluations that are intended only to generate internal improvements to a program or service, or are conducted only to meet OJP’s performance measure data reporting requirements, likely do
3 For information on subawards (including the details on proposed subawards that should be included in the application), see "Budget and Associated Documentation" under Section D. Application and Submission Information.
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not constitute “research.” Each applicant should provide sufficient information for OJP to determine whether the particular project it proposes would either intentionally or unintentionally collect and/or use information in such a way that it meets the DOJ regulatory definition of research that appears at 28 C.F.R. Part 46 (“Protection of Human Subjects”).
Research, for the purposes of human subjects protection for OJP-funded programs, is defined as “a systematic investigation, including research development, testing and evaluation, designed to develop or contribute to generalizable knowledge.” 28 C.F.R. 46.102(d).
For additional information on determining whether a proposed activity would constitute research for purposes of human subjects protection, applicants should consult the decision tree in the “Research and the Protection of Human Subjects” section of the “Requirements related to Research” web page of the “Overview of Legal Requirements Generally Applicable to OJP Grants and Cooperative Agreements - FY 2017” available through the OJP Funding Resource Center. Every prospective applicant whose application may propose a research or statistical component also should review the “Data Privacy and Confidentiality Requirements” section on that web page.
4. Budget and Associated Documentation
a. Budget Detail Worksheet A sample Budget Detail Worksheet can be found at www.ojp.gov/funding/Apply/Resources/BudgetDetailWorksheet.pdf. An applicant that submits its budget in a different format should use the budget categories listed in the sample budget worksheet. The Budget Detail Worksheet should break out costs by year.
For questions pertaining to budget and examples of allowable and unallowable costs, see the DOJ Grants Financial Guide.
b. Budget Narrative The budget narrative should thoroughly and clearly describe every category of expense listed in the proposed budget detail worksheet. OJP expects proposed budgets to be complete, cost effective, and allowable (e.g., reasonable, allocable, and necessary for project activities). This narrative should include a full description of all costs, including administrative costs (if applicable).
An applicant should demonstrate in its Budget Narrative how it will maximize cost effectiveness of award expenditures. Budget narratives should generally describe cost effectiveness in relation to potential alternatives and the goals of the project. For example, a budget narrative should detail why planned in-person meetings are necessary, or how technology and collaboration with outside organizations could be used to reduce costs, without compromising quality.
The Budget Narrative should be mathematically sound and correspond clearly with the information and figures provided in the Budget Detail Worksheet. The narrative should explain how the applicant estimated and calculated all costs, and how those costs are necessary to the completion of the proposed project. The narrative may include tables for clarification purposes, but need not be in a spreadsheet format. As with the Budget Detail Worksheet, the budget narrative should describe costs by year.
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c. Information on Proposed Subawards (if any), as well as on Proposed Procurement Contracts (if any) Applicants for OJP awards typically may propose to make “subawards.” Applicants also may propose to enter into procurement “contracts” under the award.
Whether–for purposes of federal grants administrative requirements–a particular agreement between a recipient and a third party will be considered a “subaward” or instead considered a procurement “contract” under the award is determined by federal rules and applicable OJP guidance. It is an important distinction, in part because the federal administrative rules and requirements that apply to “subawards” and procurement “contracts” under awards differ markedly.
In general, the central question is the relationship between what the third-party will do under its agreement with the recipient and what the recipient has committed (to OJP) to do under its award to further a public purpose (e.g., services the recipient will provide, products it will develop or modify, research or evaluation it will conduct). If a third party will provide some of the services the recipient has committed (to OJP) to provide, will develop or modify all or part of a product the recipient has committed (to OJP) to develop or modify, or conduct part of the research or evaluation the recipient has committed (to OJP) to conduct, OJP will consider the agreement with the third party a subaward for purposes of federal grants administrative requirements.
This will be true even if the recipient, for internal or other non-federal purposes, labels or treats its agreement as a procurement, a contract, or a procurement contract. Neither the title nor the structure of an agreement determines whether the agreement–for purposes of federal grants administrative requirements–is a “subaward” or is instead a procurement “contract” under an award.
Additional guidance on the circumstances under which (for purposes of federal grants administrative requirements) an agreement constitutes a subaward as opposed to a procurement contract under an award is available (along with other resources) on the OJP Part 200 Uniform Requirements web page.
(1) Information on proposed subawards and required certification regarding 8 U.S.C. § 1373 from certain subrecipients
General requirement for federal authorization of any subaward; statutory authorizations of subawards under the Byrne JAG program statute. Generally, a recipient of an OJP award may not make subawards (“subgrants”) unless the recipient has specific federal authorization to do so. Unless an applicable statute or DOJ regulation specifically authorizes (or requires) particular subawards, a recipient must have authorization from OJP before it may make a subaward.
JAG subawards that are required or specifically authorized by statute (see 42 U.S.C. § 3751(a) and 42 U.S.C. § 3755) do not require prior approval to authorize subawards. This includes subawards made by States under the JAG program.
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A particular subaward may be authorized by OJP because the recipient included a sufficiently detailed description and justification of the proposed subaward in the application as approved by OJP. If, however, a particular subaward is not authorized by federal statute or regulation, and is not sufficiently described and justified in the application as approved by OJP, the recipient will be required, post-award, to request and obtain written authorization from OJP before it may make the subaward.
If an applicant proposes to make one or more subawards to carry out the federal award and program, and those subawards are not specifically authorized (or required) by statute or regulation, the applicant should: (1) identify (if known) the proposed subrecipient(s), (2) describe in detail what each subrecipient will do to carry out the federal award and federal program, and (3) provide a justification for the subaward(s), with details on pertinent matters such as special qualifications and areas of expertise. Pertinent information on subawards should appear not only in the Program Narrative, but also in the Budget Detail Worksheet and budget narrative.
NEW Required certification regarding 8 U.S.C. § 1373 from any proposed subrecipient that is a unit of local government or “public” institution of higher education. Before a State may subaward FY 2017 award funds to a unit of local government or to a public institution of higher education, it will be required (by award condition) to obtain a properly-executed certification regarding compliance with 8 U.S.C. § 1373 from the proposed subrecipient. (This requirement regarding 8 U.S.C. § 1373 will not apply to subawards to Indian tribes). The specific certification the State must require from a unit of local government will vary somewhat from the specific certification it must require from a public institution of higher education. The forms will be posted and available for download at https://ojp.gov/funding/Explore/SampleCertifications8USC1373.htm.
(2) Information on proposed procurement contracts (with specific justification for proposed noncompetitive contracts over $150,000)
Unlike a recipient contemplating a subaward, a recipient of an OJP award generally does not need specific prior federal authorization to enter into an agreement that—for purposes of federal grants administrative requirements—is considered a procurement contract, provided that (1) the recipient uses its own documented procurement procedures and (2) those procedures conform to applicable federal law, including the Procurement Standards of the (DOJ) Part 200 Uniform Requirements (as set out at 2 C.F.R. 200.317 - 200.326). The Budget Detail Worksheet and budget narrative should identify proposed procurement contracts. (As discussed above, subawards must be identified and described separately from procurement contracts.)
The Procurement Standards in the (DOJ) Part 200 Uniform Requirements, however, reflect a general expectation that agreements that (for purposes of federal grants administrative requirements) constitute procurement “contracts” under awards will be entered into on the basis of full and open competition. If a proposed procurement contract would exceed the simplified acquisition threshold—currently, $150,000—a recipient of an OJP award may not proceed without competition, unless and until the recipient receives specific advance authorization from OJP to use a non-competitive approach for the procurement.
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An applicant that (at the time of its application) intends—without competition—to enter into a procurement contract that would exceed $150,000 should include a detailed justification that explains to OJP why, in the particular circumstances, it is appropriate to proceed without competition. Various considerations that may be pertinent to the justification are outlined in the DOJ Grants Financial Guide.
d. Pre-Agreement Costs For information on pre-agreement costs, see Section B. Federal Award Information.
5. Indirect Cost Rate Agreement (if applicable)
Indirect costs may be charged to an award only if:
a) The recipient has a current (that is, unexpired), federally-approved indirect cost rate; or
b) The recipient is eligible to use, and elects to use, the “de minimis” indirect cost rate described in the (DOJ) Part 200 Uniform Requirements, as set out at 2 C.F.R. 200.414(f).
Note: This rule does not eliminate or alter the JAG-specific restriction in federal law that charges for administrative costs may not exceed 10 percent of the award amount, regardless of the approved indirect cost rate.
An applicant with a current (that is, unexpired) federally-approved indirect cost rate is to attach a copy of the indirect cost rate agreement to the application. An applicant that does not have a current federally-approved rate may request one through its cognizant federal agency, which will review all documentation and approve a rate for the applicant entity, or, if the applicant’s accounting system permits, applicants may propose to allocate costs in the direct cost categories.
For assistance with identifying the appropriate cognizant federal agency for indirect costs, please contact the OCFO Customer Service Center at 1-800-458-0786 or at ask.ocfo@usdoj.gov. If DOJ is the cognizant federal agency, applicants may obtain information needed to submit an indirect cost rate proposal at www.ojp.gov/funding/Apply/Resources/IndirectCosts.pdf.
Certain OJP recipients have the option of electing to use the “de minimis” indirect cost rate. An applicant that is eligible to use the “de minimis” rate that wishes to use the “de minimis” rate should attach written documentation to the application that advises OJP of both: (1) the applicant’s eligibility to use the “de minimis” rate, and (2) its election to do so. If an eligible applicant elects the “de minimis” rate, costs must be consistently charged as either indirect or direct costs, but may not be double charged or inconsistently charged as both. The “de minimis” rate may no longer be used once an approved federally-negotiated indirect cost rate is in place. (No entity that ever has had a federally-approved negotiated indirect cost rate is eligible to use the “de minimis” rate.)
6. Financial Management and System of Internal Controls Questionnaire (including applicant disclosure of high-risk status)
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Every State is to download, complete, and submit the OJP Financial Management and System of Internal Controls Questionnaire as part of its application.
Among other things, the form requires each applicant to disclose whether it currently is designated “high-risk” by a federal grant-making agency outside of DOJ. For purposes of this disclosure, high risk includes any status under which a federal awarding agency provides additional oversight due to the applicant’s past performance, or other programmatic or financial concerns with the applicant. If an applicant is designated high risk by another federal awarding agency, the applicant must provide the following information:
• The federal awarding agency that currently designates the applicant high risk. • The date the applicant was designated high risk. • The high-risk point of contact at that federal awarding agency (name, phone number,
and email address). • The reasons for the high-risk status, as set out by the federal awarding agency.
OJP seeks this information to help ensure appropriate federal oversight of OJP awards. An applicant that is considered “high-risk” by another federal awarding agency is not automatically disqualified from receiving an OJP award. OJP may, however, consider the information in award decisions, and may impose additional OJP oversight of any award under this solicitation (including through the conditions that accompany the award document).
7. Disclosure of Lobbying Activities
An applicant that expends any funds for lobbying activities is to provide all of the information requested on the form Disclosure of Lobbying Activities (SF-LLL).
8. Certifications and Assurances by the Chief Executive of the Applicant Government
A JAG application is not complete, and a State may not receive award funds, unless the chief executive of the applicant State (e.g., the governor) properly executes, and the State submits, the “Certifications and Assurances by the Chief Executive of the Applicant Government” attached to this solicitation as Appendix I.
OJP will not deny an application for an FY 2017 award for failure to submit these “Certifications and Assurances by the Chief Executive of the Applicant Government” by the application deadline, but a State will not receive award funds (and its award will include a condition that withholds funds) until it submits these certifications and assurances, properlyexecuted by the chief executive of the State (e.g., the governor).
9. Certification of Compliance with 8 U.S.C. § 1373 by the Chief Legal Officer of the Applicant Government
The chief legal officer of an applicant State (e.g., the Attorney General of the State) is to carefully review the “State or Local Government: FY 2017 Certification of Compliance with 8
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U.S.C. § 1373” that is attached as Appendix II to this solicitation. If the chief legal officer determines that he or she may execute the certification, the State is to submit the certification as part of its application.
As discussed further below, a State applicant will be unable to make a valid award acceptance of an FY 2017 JAG award unless and until a properly-executed certification by its chief legal officer is received by OJP on or before the day the State submits an executed award document.
10. State Strategic Plan (if applicable)
States are strongly encouraged to use JAG funding in support of an existing statewide strategic plan. An applicant State should attach a current version of the State strategic plan to its application, if one exists. If a State does not have such a plan, the program narrative should describe the State’s timeline and process for developing such a strategic plan.
ALERT A recent amendment to the JAG program statute requires, starting with the FY 2019 JAG program, that States have in place and submit a strategic plan that identifies stakeholders, describes evidencebased approaches that will be used, and illustrates how the State will allocate funding. By law, strategic plans are to be updated every five years.
Training and technical assistance (TTA) is available from BJA’s TTA providers to assist States with the development of their strategic planning process and plan.
To help ensure that States consider the impact of JAG funding decisions across the entire criminal justice system, BJA strongly encourages each State to bring all criminal justice system stakeholders together in the strategic planning process. The strategic planning process should include local governments, and representatives of all segments of the criminal justice system, including judges, prosecutors, law enforcement personnel, and corrections personnel, as well as providers of indigent defense services, victim services, juvenile justice delinquency prevention programs, community corrections, and reentry services. For more information, see the National Center for Justice Planning website.
11. Additional Attachments
a. Applicant Disclosure of Pending Applications Each applicant is to disclose whether it has (or is proposed as a subrecipient under) any pending applications for federally-funded grants or cooperative agreements that (1) include requests for funding to support the same project being proposed in the application under this solicitation, and (2) would cover identical cost items outlined in the budget submitted to OJP as part of the application under this solicitation. The applicant is to disclose applications made directly to federal awarding agencies, and also applications for subawards of federal funds (e.g., applications to State agencies that will subaward (“subgrant”) federal funds).
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OJP seeks this information to help avoid any inappropriate duplication of funding. Leveraging multiple funding sources in a complementary manner to implement comprehensive programs or projects is encouraged and is not seen as inappropriate duplication.

Each applicant that has one or more pending applications as described above is to provide the following information about pending applications submitted within the last 12 months:

• The federal or State funding agency. • The solicitation name/project name. • The point of contact information at the applicable federal or State funding
agency.

Federal or State Funding Agency
DOJ/Office of Community Oriented Policing Services (COPS) Health & Human Services/ Substance Abuse & Mental Health Services Administration

Solicitation Name/Phone/Email for Point of Contact at

Name/Project Federal or State Funding Agency

SAMPLE Name
COPS Hiring Program

Jane Doe, 202/000-0000; jane.doe@usdoj.gov

Drug-Free Communities Mentoring Program/ North County Youth Mentoring Program

John Doe, 202/000-0000; john.doe@hhs.gov

Each applicant should include the table as a separate attachment to its application. The file should be named “Disclosure of Pending Applications.” The applicant Legal Name on the application must match the entity named on the disclosure of pending applications statement.

Any applicant that does not have any pending applications as described above is to submit, as a separate attachment, a statement to this effect: “[Applicant Name on SF424] does not have (and is not proposed as a subrecipient under) any pending applications submitted within the last 12 months for federally-funded grants or cooperative agreements (or for subawards under federal grants or cooperative agreements) that request funding to support the same project being proposed in this application to OJP and that would cover identical cost items outlined in the budget submitted as part of this application.”

b. Research and Evaluation Independence and Integrity (if applicable)
If an application involves research (including research and development) and/or evaluation, the applicant must demonstrate research/evaluation independence and integrity, including appropriate safeguards, before it may receive award funds. The

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applicant must demonstrate independence and integrity regarding both this proposed research and/or evaluation, and any current or prior related projects.
Each application should include an attachment that addresses both i. and ii. below.
i. For purposes of this solicitation, each applicant is to document research and evaluation independence and integrity by including one of the following two items:
a. A specific assurance that the applicant has reviewed its application to identify any actual or potential apparent conflicts of interest (including through review of pertinent information on the principal investigator, any co-principal investigators, and any subrecipients), and that the applicant has identified no such conflicts of interest – whether personal or financial or organizational (including on the part of the applicant entity or on the part of staff, investigators, or subrecipients) – that could affect the independence or integrity of the research, including the design, conduct, and reporting of the research.
OR
b. A specific description of actual or potential apparent conflicts of interest that the applicant has identified – including through review of pertinent information on the principal investigator, any co-principal investigators, and any subrecipients – that could affect the independence or integrity of the research, including the design, conduct, or reporting of the research. These conflicts may be personal (e.g., on the part of investigators or other staff), financial, or organizational (related to the applicant or any subrecipient entity). Some examples of potential investigator (or other personal) conflict situations are those in which an investigator would be in a position to evaluate a spouse’s work product (actual conflict), or an investigator would be in a position to evaluate the work of a former or current colleague (potential apparent conflict). With regard to potential organizational conflicts of interest, as one example, generally an organization would not be given an award to evaluate a project, if that organization had itself provided substantial prior technical assistance to that specific project or a location implementing the project (whether funded by OJP or other sources), because the organization in such an instance might appear to be evaluating the effectiveness of its own prior work. The key is whether a reasonable person understanding all of the facts would be able to have confidence that the results of any research or evaluation project are objective and reliable. Any outside personal or financial interest that casts doubt on that objectivity and reliability of an evaluation or research product is a problem and must be disclosed.
ii. In addition, for purposes of this solicitation, each applicant is to address possible mitigation of research integrity concerns by including, at a minimum, one of the following two items:
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a. If an applicant reasonably believes that no actual or potential apparent conflicts of interest (personal, financial, or organizational) exist, then the applicant should provide a brief narrative explanation of how and why it reached that conclusion. The applicant also is to include an explanation of the specific processes and procedures that the applicant has in place, or will put in place, to identify and prevent (or, at the very least, mitigate) any such conflicts of interest pertinent to the funded project during the period of performance. Documentation that may be helpful in this regard may include organizational codes of ethics/conduct and policies regarding organizational, personal, and financial conflicts of interest. There is no guarantee that the plan, if any, will be accepted as proposed.
OR
b. If the applicant has identified actual or potential apparent conflicts of interest (personal, financial, or organizational) that could affect the independence and integrity of the research, including the design, conduct, or reporting of the research, the applicant is to provide a specific and robust mitigation plan to address each of those conflicts. At a minimum, the applicant is expected to explain the specific processes and procedures that the applicant has in place, or will put in place, to identify and eliminate (or, at the very least, mitigate) any such conflicts of interest pertinent to the funded project during the period of performance. Documentation that may be helpful in this regard may include organizational codes of ethics/conduct and policies regarding organizational, personal, and financial conflicts of interest. There is no guarantee that the plan, if any, will be accepted as proposed.
OJP will assess research and evaluation independence and integrity based on considerations such as the adequacy of the applicant’s efforts to identify factors that could affect the objectivity or integrity of the proposed staff and/or the applicant entity (and any subrecipients) in carrying out the research, development, or evaluation activity; and the adequacy of the applicant’s existing or proposed remedies to control any such factors.
c. State Governing Body Review
Applicants must submit information via the Certification and Assurances by the Chief Executive (See Appendix I) which documents that the JAG application was made available for review by the governing body of the state, or to an organization designated by that governing body, for a period that was not less than 30 days before the application was submitted to BJA. The same Chief Executive Certification will also specify that an opportunity to comment on this application was provided to citizens prior to the application submission to the extent applicable law or established procedures make such opportunity available. In the past, this has been accomplished via submission of specific review dates; now OJP will only accept a Governor’s certification to attest to these facts. States may continue to submit actual dates of review should they wish to do so, in addition to the submission of the Chief Executive Certification.
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How to Apply An applicant must submit its application through the Grants Management System (GMS), which provides support for the application, award, and management of awards at OJP. Each applicant entity must register in GMS for each specific funding opportunity. Although the registration and submission deadlines are the same, OJP urges each applicant entity to register promptly, especially if this is the first time the applicant is using the system. Find complete instructions on how to register and submit an application in GMS at www.ojp.gov/gmscbt/. An applicant that experiences technical difficulties during this process should email GMS.HelpDesk@usdoj.gov or call 888-549-9901 (option 3), 24 hours every day, including during federal holidays. OJP recommends that each applicant register promptly to prevent delays in submitting an application package by the deadline.
Note on File Types: GMS does not accept executable file types as application attachments. These disallowed file types include, but are not limited to, the following extensions: “.com,” “.bat,” “.exe,” “.vbs,” “.cfg,” “.dat,” “.db,” “.dbf,” “.dll,” “.ini,” “.log,” “.ora,” “.sys,” and “.zip.”
Every applicant entity must comply with all applicable System for Award Management (SAM) and unique entity identifier (currently, a Data Universal Numbering System [DUNS] number) requirements. If an applicant entity has not fully complied with applicable SAM and unique identifier requirements by the time OJP makes award decisions, OJP may determine that the applicant is not qualified to receive an award and may use that determination as a basis for making the award to a different applicant.
All applicants should complete the following steps:
1. Acquire a unique entity identifier (DUNS number). In general, the Office of Management and Budget requires every applicant for a federal award (other than an individual) to include a “unique entity identifier” in each application, including an application for a supplemental award. Currently, a DUNS number is the required unique entity identifier.
A DUNS number is a unique nine-digit identification number provided by the commercial company Dun and Bradstreet. This unique entity identifier is used for tracking purposes, and to validate address and point of contact information for applicants, recipients, and subrecipients. It will be used throughout the life cycle of an OJP award. Obtaining a DUNS number is a free, one-time activity. Call Dun and Bradstreet at 866-705-5711 to obtain a DUNS number or apply online at www.dnb.com. A DUNS number is usually received within 1-2 business days.
2. Acquire registration with the SAM. SAM is the repository for certain standard information about federal financial assistance applicants, recipients, and subrecipients. All applicants for OJP awards (other than individuals) must maintain current registrations in the SAM database. Each applicant must update or renew its SAM registration at least annually to maintain an active status. SAM registration and renewal can take as long as 10 business days to complete.
Information about SAM registration procedures can be accessed at https://www.sam.gov/.
3. Acquire a GMS username and password. New users must create a GMS profile by selecting the “First Time User” link under the sign-in box of the GMS home page. For more
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information on how to register in GMS, go to www.ojp.gov/gmscbt. Previously registered applicants should ensure, prior to applying, that the user profile information is up-to-date in GMS (including, but not limited to, address, legal name of agency and authorized representative) as this information is populated in any new application.
4. Verify the SAM (formerly CCR) registration in GMS. OJP requires each applicant to verify its SAM registration in GMS. Once logged into GMS, click the “CCR Claim” link on the left side of the default screen. Click the submit button to verify the SAM (formerly CCR) registration.
5. Search for the funding opportunity on GMS. After logging into GMS or completing the GMS profile for username and password, go to the “Funding Opportunities” link on the left side of the page. Select BJA and FY 17 Edward Byrne Memorial State Justice Assistance Grant (JAG) Program.
6. Register by selecting the “Apply Online” button associated with the funding opportunity title. The search results from step 5 will display the “funding opportunity” (solicitation) title along with the registration and application deadlines for this solicitation. Select the “Apply Online” button in the “Action” column to register for this solicitation and create an application in the system.
7. Follow the directions in GMS to submit an application consistent with this solicitation. Once the application is submitted, GMS will display a confirmation screen stating the submission was successful. Important: In some instances, applicants must wait for GMS approval before submitting an application. OJP urges each applicant to submit its application at least 72 hours prior to the application due date.
Note: Application Versions If an applicant submits multiple versions of the same application, OJP will review only the most recent system-validated version submitted.
Experiencing Unforeseen GMS Technical Issues An applicant that experiences unforeseen GMS technical issues beyond its control that prevent it from submitting its application by the deadline may contact the GMS Help Desk or the SAM Help Desk (Federal Service Desk) to report the technical issue and receive a tracking number. The applicant is expected to email the NCJRS Response Center identified in the Contact Information section on the title page within 24 hours after the application deadline to request approval to submit its application after the deadline. The applicant’s email must describe the technical difficulties, and must include a timeline of the applicant’s submission efforts, the complete grant application, the applicant’s DUNS number, and any GMS Help Desk or SAM tracking number(s).
Note: OJP does not automatically approve requests to submit a late application. After OJP reviews the applicant’s request, and contacts the GMS Help Desk to verify the reported technical issues, OJP will inform the applicant whether the request to submit a late application has been approved or denied. If OJP determines that the untimely application submission was due to the applicant’s failure to follow all required procedures, OJP will deny the applicant’s request to submit its application.
The following conditions generally are insufficient to justify late submissions to OJP solicitations:
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• Failure to register in SAM or GMS in sufficient time (SAM registration and renewal can take as long as 10 business days to complete).
• Failure to follow GMS instructions on how to register and apply as posted on the GMS website.
• Failure to follow each instruction in the OJP solicitation. • Technical issues with the applicant’s computer or information technology environment,
such as issues with firewalls.
E. Application Review Information
Review Process OJP is committed to ensuring a fair and open process for making awards. BJA reviews the application to make sure that the information presented is reasonable, understandable, measurable, and achievable, as well as consistent with the solicitation. BJA will also review applications to help ensure that JAG program-statute requirements have been met.
Pursuant to the (DOJ) Part 200 Uniform Requirements, before awards are made, OJP also reviews information related to the degree of risk posed by applicants. Among other things, to help assess whether an applicant that has one or more prior federal awards has a satisfactory record with respect to performance, integrity, and business ethics, OJP checks whether the applicant is listed in SAM as excluded from receiving a federal award. In addition, if OJP anticipates that an award will exceed $150,000 in federal funds, OJP also must review and consider any information about the applicant that appears in the non-public segment of the integrity and performance system accessible through SAM (currently, the Federal Awardee Performance and Integrity Information System; “FAPIIS”).
Important note on FAPIIS: An applicant, at its option, may review and comment on any information about itself that currently appears in FAPIIS and was entered by a federal awarding agency. OJP will consider any such comments by the applicant, in addition to the other information in FAPIIS, in its assessment of the risk posed by the applicant.
The evaluation of risks goes beyond information in SAM, however. OJP itself has in place a framework for evaluating risks posed by applicants. OJP takes into account information pertinent to matters such as—
1. Applicant financial stability and fiscal integrity. 2. Quality of the management systems of the applicant, and the applicant’s ability to meet
prescribed management standards, including those outlined in the DOJ Grants Financial Guide. 3. Applicant’s history of performance under OJP and other DOJ awards (including compliance with reporting requirements and award conditions), as well as awards from other federal agencies. 4. Reports and findings from audits of the applicant, including audits under the (DOJ) Part 200 Uniform Requirements. 5. Applicant's ability to comply with statutory and regulatory requirements, and to effectively implement other award requirements.
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Absent explicit statutory authorization or written delegation of authority to the contrary, the Assistant Attorney General will make all final award decisions.
F. Federal Award Administration Information
Federal Award Notices OJP expects to issue award notifications by September 30, 2017. OJP sends award notification by email through GMS to the individuals listed in the application as the point of contact and the authorizing official. The email notification includes detailed instructions on how to access and view the award documents, and steps to take in GMS to start the award acceptance process. GMS automatically issues the notifications at 9:00 p.m. eastern time on the award date.
NOTE: In order validly to accept an award under the FY 2017 JAG program, a State must submit to GMS the certification by its chief legal officer regarding compliance with 8 U.S.C. § 1373, executed using the form that appears in Appendix II. (The form also may be downloaded at https://ojp.gov/funding/Explore/SampleCertifications-8USC1373.htm.) Unless the executed certification either— (1) is submitted to OJP together with the signed award document, or (2) is uploaded in GMS no later than the day the signed award document is submitted, OJP will reject as invalid any submission by a State that purports to accept an award under this solicitation.
Rejection of an initial submission as an invalid award acceptance is not a denial of the award. Consistent with award requirements, once the State does submit the necessary certification regarding 8 U.S.C. § 1373, the State will be permitted to submit an award document executed by the State on or after the date of that certification.
Also, in order for a State applicant validly to accept an award under the FY 2017 JAG program, an individual with the necessary authority to bind the applicant will be required to log in; execute a set of legal certifications and a set of legal assurances; designate a financial point of contact; thoroughly review the award, including all award conditions; and sign and accept the award. The award acceptance process requires physical signature of the award document by the authorized representative and the scanning of the fully-executed award document (along with the required certification regarding 8 U.S.C. § 1373, if not already uploaded in GMS) to OJP.
Statutory and Regulatory Requirements; Award Conditions If selected for funding, in addition to implementing the funded project consistent with the OJPapproved application, the recipient must comply with all award requirements (including all award conditions), as well as all applicable requirements of federal statutes and regulations (including those referred to in assurances and certifications executed as part of the application or in connection with award acceptance, and administrative and policy requirements set by statute or regulation).
OJP strongly encourages prospective applicants to review information on post-award legal requirements generally applicable to FY 2017 OJP awards and common OJP award conditions prior to submitting an application.
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Applicants should consult the “Overview of Legal Requirements Generally Applicable to OJP Grants and Cooperative Agreements - FY 2017 Awards,” available in the OJP Funding Resource Center. In addition, applicants should examine the following two legal documents, as each successful applicant must execute both documents in GMS before it may receive any award funds.
• Certifications Regarding Lobbying; Debarment, Suspension and Other Responsibility Matters; and Drug-Free Workplace Requirements
• OJP Certified Standard Assurances (attached to this solicitation as Appendix IV)
The web pages accessible through the “Overview of Legal Requirements Generally Applicable to OJP Grants and Cooperative Agreements - FY 2017 Awards” are intended to give applicants for OJP awards a general overview of important statutes, regulations, and award conditions that apply to many (or in some cases, all) OJP grants and cooperative agreements awarded in FY 2017. Individual OJP awards typically also will include additional award conditions. Those additional conditions may relate to the particular statute, program, or solicitation under which the award is made; to the substance of the funded application; to the recipient's performance under other federal awards; to the recipient's legal status (e.g., as a for-profit entity); or to other pertinent considerations.
Individual FY 2017 Byrne JAG awards will include two new express conditions that, with respect to the “program or activity” that would be funded by the FY 2017 award, are designed to ensure that States and units of local government that receive funds from the FY 2017 Byrne JAG award: (1) permit personnel of the U.S. Department of Homeland Security (“DHS”) to access any correctional or detention facility in order to meet with an alien (or an individual believed to be an alien) and inquire as to his or her right to be or remain in the United States; and (2) provide at least 48 hours’ advance notice to DHS regarding the scheduled release date and time of an alien in the jurisdiction’s custody when DHS requests such notice in order to take custody of the alien pursuant to the Immigration and Nationality Act.
Compliance with the requirements of the two foregoing new award conditions will be an authorized and priority purpose of the award. The reasonable costs (to the extent not reimbursed under any other federal program) of developing and putting into place statutes, rules, regulations, policies, or practices as required by these conditions, and to honor any dulyauthorized request from DHS that is encompassed by these conditions, will be allowable costs under the award.
General Information about Post-Federal Award Reporting Requirements A State recipient of an award under this solicitation will be required to submit the following reports and data.
Required reports. Recipients typically must submit quarterly financial status reports, semiannual progress reports, final financial and progress reports, and, if applicable, an annual audit report in accordance with the (DOJ) Part 200 Uniform Requirements or specific award conditions. Future awards and fund drawdowns may be withheld if reports are delinquent. (In appropriate cases, OJP may require additional reports.)
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Awards that exceed $500,000 will include an additional condition that, under specific circumstances, will require the recipient to report (to FAPIIS) information on civil, criminal, and administrative proceedings connected with (or connected to the performance of) either the OJP award or any other grant, cooperative agreement, or procurement contract from the federal government. Additional information on this reporting requirement appears in the text of the award condition posted on the OJP website at https://ojp.gov/funding/FAPIIS.htm
Data on performance measures. In addition to required reports, each recipient of an award under this solicitation also must provide data that measure the results of the work done under the award. To demonstrate program progress and success, as well as to assist DOJ with fulfilling its responsibilities under GPRA and the GPRA Modernization Act of 2010, OJP will require State recipients to provide accountability metrics data. Accountability metrics data must be submitted through BJA’s Performance Measurement Tool (PMT), available at https://bjapmt.ojp.gov. The accountability measures are available at: https://bjapmt.ojp.gov/help/jagdocs.html. (Note that if a law enforcement agency receives JAG funds from a State, the State must submit quarterly accountability metrics data related to training that officers have received on use of force, racial and ethnic bias, de-escalation of conflict, and constructive engagement with the public.)
OJP may restrict access to award funds if a recipient of an OJP award fails to report required performance measure data in a timely manner.
G. Federal Awarding Agency Contact(s)
For OJP contact(s), see the title page of this solicitation.
For contact information for GMS, see the title page.
H. Other Information
Freedom of Information Act and Privacy Act (5 U.S.C. § 552 and 5 U.S.C. § 552a) All applications submitted to OJP (including all attachments to applications) are subject to the federal Freedom of Information Act (FOIA) and to the Privacy Act. By law, DOJ may withhold information that is responsive to a request pursuant to FOIA if DOJ determines that the responsive information either is protected under the Privacy Act or falls within the scope of one of nine statutory exemptions under FOIA. DOJ cannot agree in advance of a request pursuant to FOIA not to release some or all portions of an application.
In its review of records that are responsive to a FOIA request, OJP will withhold information in those records that plainly falls within the scope of the Privacy Act or one of the statutory exemptions under FOIA. (Some examples include certain types of information in budgets, and names and contact information for project staff other than certain key personnel.) In appropriate circumstances, OJP will request the views of the applicant/recipient that submitted a responsive document.
For example, if OJP receives a request pursuant to FOIA for an application submitted by a nonprofit or for-profit organization or an institution of higher education, or for an application that involves research, OJP typically will contact the applicant/recipient that submitted the
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application and ask it to identify—quite precisely—any particular information in the application that applicant/recipient believes falls under a FOIA exemption, the specific exemption it believes applies, and why. After considering the submission by the applicant/recipient, OJP makes an independent assessment regarding withholding information. OJP generally follows a similar process for requests pursuant to FOIA for applications that may contain law-enforcement sensitive information. Provide Feedback to OJP To assist OJP in improving its application and award processes, OJP encourages applicants to provide feedback on this solicitation, the application submission process, and/or the application review process. Provide feedback to OJPSolicitationFeedback@usdoj.gov. IMPORTANT: This email is for feedback and suggestions only. OJP does not reply to messages it receives in this mailbox. A prospective applicant that has specific questions on any program or technical aspect of the solicitation must use the appropriate telephone number or email listed on the front of this solicitation document to obtain information. These contacts are provided to help ensure that prospective applicants can directly reach an individual who can address specific questions in a timely manner. If you are interested in being a reviewer for other OJP grant applications, please email your résumé to ojppeerreview@lmsolas.com. (Do not send your résumé to the OJP Solicitation Feedback email account.) Note: Neither you nor anyone else from your organization or entity can be a peer reviewer in a competition in which you or your organization/entity has submitted an application.
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Application Checklist

Edward Byrne Memorial Justice Assistance Grant (JAG) Program: FY 2017 State Solicitation

This application checklist has been created as an aid in developing an application.

What an Applicant Should Do:

Prior to Registering in GMS:

_____ Acquire a DUNS Number

(see page 28)

_____ Acquire or renew registration with SAM

(see page 28)

To Register with GMS:

_____ For new users, acquire a GMS username and password* (see page 28)

_____ For existing users, check GMS username and password*

to ensure account access

(see page 29)

_____ Verify SAM registration in GMS

(see page 29)

_____ Search for correct funding opportunity in GMS

(see page 29)

_____ Select correct funding opportunity in GMS (see page 29)

_____ Register by selecting the “Apply Online” button associated with the funding opportunity

title

(see page 29)

_____ Read OJP policy and guidance on conference approval, planning, and reporting

available at ojp.gov/financialguide/DOJ/PostawardRequirements/chapter3.10a.htm

(see page 15)

_____ If experiencing technical difficulties in GMS, contact the NCJRS Response Center (see

page 29)

*Password Reset Notice – GMS users are reminded that while password reset capabilities exist, this function is only associated with points of contact designated within GMS at the time the account was established. Neither OJP nor the GMS Help Desk will initiate a password reset unless requested by the authorized official or a designated point of contact associated with an award or application.

Overview of Post-Award Legal Requirements:

_____ Review the “Overview of Legal Requirements Generally Applicable to OJP Grants and Cooperative Agreements - FY 2017 Awards” in the OJP Funding Resource Center.

Scope Requirement:

_____ The federal amount requested is within the allowable limit(s) of the FY 2017 JAG Allocations List as listed on BJA’s JAG web page.

What an Application Should Include: _____ Application for Federal Assistance (SF-424)

(see page 17)

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_____ Intergovernmental Review

(see page 17)

_____ Project Abstract

(see page 17)

_____ Program Narrative

(see page 18)

_____ Budget Detail Worksheet

(see page 19)

_____ Budget Narrative

(see page 19)

_____ Indirect Cost Rate Agreement (if applicable)

(see page 22)

_____ Financial Management and System of Internal Controls Questionnaire (see 22)

_____ Disclosure of Lobbying Activities (SF-LLL) (if applicable) (see page 23)

_____ Certifications and Assurances by Chief Executive (see page 23)

_____ Certification of Compliance with 8 U.S.C. § 1373 by Chief Legal Officer (see page 23)

_____ State Strategic Plan (if applicable)

(see page 24)

_____ Additional Attachments

_____ Applicant Disclosure of Pending Applications (see page 24)

_____ Research and Evaluation Independence and Integrity (if applicable)

(see page 25)

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Appendix I
Certifications and Assurances by the Chief Executive of the Applicant Government
Template for use by chief executive of the “State” (e.g., the governor)
Note: By law, for purposes of the JAG program, the term “States” includes the District of Columbia, the Commonwealth of Puerto Rico, the Northern Mariana Islands, the U.S. Virgin Islands, Guam, and American Samoa.
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Appendix II
State or Local Government: Certification of Compliance with 8 U.S.C. § 1373
Template for use by chief legal officer of the “State” (e.g., the State Attorney General)
Available for download at: https://ojp.gov/funding/Explore/SampleCertifications-8USC1373
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Appendix III
8 U.S.C. § 1373
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8 U.S.C. § 1373 (as in effect on June 21, 2017)
Communication between government agencies and the Immigration and Naturalization Service
(a) In general Notwithstanding any other provision of Federal, State, or local law, a Federal, 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, the Immigration and Naturalization Service information regarding the citizenship or immigration status, lawful or unlawful, of any individual. (b) Additional authority of government entities
Notwithstanding any other provision of Federal, State, or local law, no person or agency may prohibit, or in any way restrict, a Federal, State, or local government entity from doing any of the following with respect to information regarding the immigration status, lawful or unlawful, of any individual:
(1) Sending such information to, or requesting or receiving such information from, the Immigration and Naturalization Service.
(2) Maintaining such information. (3) Exchanging such information with any other Federal, State, or local government entity. (c) Obligation to respond to inquiries The Immigration and Naturalization Service shall respond to an inquiry by a Federal, State, or local government agency, seeking to verify or ascertain the citizenship or immigration status of any individual within the jurisdiction of the agency for any purpose authorized by law, by providing the requested verification or status information.
See also provisions set out at (or referenced in) 8 U.S.C. § 1551 note (“Abolition … and Transfer of Functions”)
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Appendix IV
OJP Certified Standard Assurances
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Exhibit B

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U.S. Department of Justice
Office of Justice Programs Bureau of Justice Assistance

OMB No. 1121-0329 Approval Expires 12/31/2018

The U.S. Department of Justice (DOJ), Office of Justice Programs (OJP), Bureau of Justice Assistance (BJA) is seeking applications for the Edward Byrne Memorial Justice Assistance Grant (JAG) Program. This program furthers the Department’s mission by assisting State, local, and tribal efforts to prevent or reduce crime and violence.
Edward Byrne Memorial Justice Assistance Grant Program
FY 2017 Local Solicitation
Applications Due: September 5, 2017
Eligibility
Only units of local government may apply under this solicitation. By law, for purposes of the JAG Program, the term “units of local government” includes a town, township, village, parish, city, county, borough, or other general purpose political subdivision of a state; or, it may also be a federally recognized Indian tribal government that performs law enforcement functions (as determined by the Secretary of the Interior). A unit of local government may be any law enforcement district or judicial enforcement district established under applicable State law with authority to independently establish a budget and impose taxes; for example, in Louisiana, a unit of local government means a district attorney or parish sheriff.
A JAG application is not complete, and a unit of local government may not receive award funds, unless the chief executive of the applicant unit of local government (e.g., a mayor) properly executes, and the unit of local government submits, the “Certifications and Assurances by Chief Executive of Applicant Government” attached to this solicitation as Appendix I.
In addition, as discussed further below, in order validly to accept a Fiscal Year (FY) 2017 JAG award, the chief legal officer of the applicant unit of local government must properly execute, and the unit of local government must submit, the specific certification regarding compliance with 8 U.S.C. § 1373 attached to this solicitation as Appendix II. (Note: this requirement does not apply to Indian tribal governments.) (The text of 8 U.S.C. § 1373 appears in Appendix II.)
Eligible allocations under JAG are posted annually on the JAG web page under “Funding.”

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Deadline
Applicants must register in the OJP Grants Management System (GMS) prior to submitting an application under this solicitation. All applicants must register, even those that previously registered in GMS. Select the “Apply Online” button associated with the solicitation title. All registrations and applications are due by 5 p.m. eastern time on September 5, 2017.
This deadline does not apply to the certification regarding compliance with 8 U.S.C. § 1373. As explained below, a unit of local government (other than an Indian tribal government) may not validly accept an award unless that certification is submitted to the Office of Justice Programs (OJP) on or before the day the unit of local government submits the signed award acceptance documents.
For additional information, see How to Apply in Section D. Application and Submission Information.
Contact Information
For technical assistance with submitting an application, contact the Grants Management System (GMS) Support Hotline at 888–549–9901, option 3, or via email at GMS.HelpDesk@usdoj.gov. The GMS Support Hotline operates 24 hours a day, 7 days a week, including on federal holidays.
An applicant that experiences unforeseen GMS technical issues beyond its control that prevent it from submitting its application by the deadline must email the National Criminal Justice Reference Service (NCJRS) Response Center at grants@ncjrs.gov within 24 hours after the application deadline in order to request approval to submit its application. Additional information on reporting technical issues appears under “Experiencing Unforeseen GMS Technical Issues” in How to Apply in Section D. Application and Submission Information.
For assistance with any other requirement of this solicitation, applicants may contact the NCJRS Response Center by telephone at 1–800–851–3420; via TTY at 301–240–6310 (hearing impaired only); by email at grants@ncjrs.gov; by fax to 301–240–5830, or by web chat at https://webcontact.ncjrs.gov/ncjchat/chat.jsp. The NCJRS Response Center hours of operation are 10:00 a.m. to 6:00 p.m. eastern time, Monday through Friday, and 10:00 a.m. to 8:00 p.m. eastern time on the solicitation close date. Applicants also may contact the appropriate BJA State Policy Advisor.
Funding opportunity number assigned to this solicitation: BJA-2017-11301
Release date: August 3, 2017
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Contents
A. Program Description................................................................................................... 5 Overview ..........................................................................................................................5 Program-Specific Information ..........................................................................................5 Permissible uses of JAG Funds – In general ...................................................................5 Limitations on the use of JAG funds ................................................................................6 Required compliance with applicable federal laws...........................................................8 BJA areas of emphasis ....................................................................................................9 Goals, Objectives, and Deliverables ..............................................................................10 Evidence-Based Programs or Practices ........................................................................10 B. Federal Award Information ....................................................................................... 11 Type of Award................................................................................................................11 Financial Management and System of Internal Controls ...............................................12 Budget and Financial Information ..................................................................................13 Cost Sharing or Match Requirement..............................................................................14 Pre-Agreement Costs (also known as Pre-award Costs)...............................................14 Prior Approval, Planning, and Reporting of Conference/Meeting/Training Costs...........14 Costs Associated with Language Assistance (if applicable) ..........................................14 C. Eligibility Information ................................................................................................ 15 D. Application and Submission Information .................................................................. 15 What an Application Should Include ..............................................................................15 How to Apply..................................................................................................................26 E. Application Review Information ................................................................................ 28 Review Process .............................................................................................................28 F. Federal Award Administration Information................................................................ 29 Federal Award Notices ..................................................................................................29 Statutory and Regulatory Requirements; Award Conditions..........................................29 General Information about Post-Federal Award Reporting Requirements.....................30 G. Federal Awarding Agency Contact(s) ...................................................................... 31 H. Other Information ..................................................................................................... 31 Freedom of Information Act and Privacy Act (5 U.S.C. § 552 and 5 U.S.C. § 552a) .....31 Provide Feedback to OJP ..............................................................................................32 Application Checklist..................................................................................................... 33 Appendix I..................................................................................................................... 35
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Edward Byrne Memorial Justice Assistance Grant Program
FY 2017 Local Solicitation CFDA #16.738
A. Program Description
Overview The Edward Byrne Memorial Justice Assistance Grant (JAG) Program is the primary provider of federal criminal justice funding to States and units of local government. BJA will award JAG Program funds to eligible units of local government under this FY 2017 JAG Program Local Solicitation. (A separate solicitation will be issued for applications to BJA directly from States.)
Statutory Authority: The JAG Program statute is Subpart I of Part E of Title I of the Omnibus Crime Control and Safe Streets Act of 1968. Title I of the “Omnibus Act” generally is codified at Chapter 26 of Title 42 of the United States Code; the JAG Program statute is codified at 42 U.S.C. §§ 3750-3758. See also 28 U.S.C. § 530C(a).
Program-Specific Information
Permissible uses of JAG Funds – In general In general, JAG funds awarded to a unit of local government under this FY 2017 solicitation may be used to provide additional personnel, equipment, supplies, contractual support, training, technical assistance, and information systems for criminal justice, including for any one or more of the following:
• Law enforcement programs • Prosecution and court programs • Prevention and education programs • Corrections and community corrections programs • Drug treatment and enforcement programs • Planning, evaluation, and technology improvement programs • Crime victim and witness programs (other than compensation) • Mental health programs and related law enforcement and corrections programs,
including behavioral programs and crisis intervention teams
Under the JAG Program, units of local government may use award funds for broadband deployment and adoption activities as they relate to criminal justice activities.
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Limitations on the use of JAG funds Prohibited and controlled uses of funds – JAG funds may not be used (whether directly or indirectly) for any purpose prohibited by federal statute or regulation, including those purposes specifically prohibited by the JAG Program statute as set out at 42 U.S.C. § 3751(d):
(1) Any security enhancements or any equipment to any nongovernmental entity that is not engaged in criminal justice or public safety.
(2) Unless the Attorney General certifies that extraordinary and exigent circumstances exist that make the use of such funds to provide such matters essential to the maintenance of public safety and good order—
(a) Vehicles (excluding police cruisers), vessels (excluding police boats), or aircraft (excluding police helicopters)
(b) Luxury items (c) Real estate (d) Construction projects (other than penal or correctional institutions) (e) Any similar matters
For additional information on expenditures prohibited under JAG, as well as expenditures that are permitted but “controlled,” along with the process for requesting approval regarding controlled items, refer to the JAG Prohibited and Controlled Expenditures Guidance. Information also appears in the JAG FAQs.
Cap on use of JAG award funds for administrative costs – A unit of local government may use up to 10 percent of a JAG award, including up to 10 percent of any earned interest, for costs associated with administering the award.
Prohibition of supplanting; no use of JAG funds as “match” – JAG funds may not be used to supplant State or local funds but must be used to increase the amounts of such funds that would, in the absence of federal funds, be made available for law enforcement activities. See the JAG FAQs on BJA’s JAG web page for examples of supplanting.
Although supplanting is prohibited, as discussed under “What An Application Should Include,” the leveraging of federal funding is encouraged.
Absent specific federal statutory authority to do so, JAG award funds may not be used as “match” for the purposes of other federal awards.
Other restrictions on use of funds – If a unit of local government chooses to use its FY 2017 JAG funds for particular, defined types of expenditures, it must satisfy certain preconditions:
Body-Worn Cameras (BWC) A unit of local government that proposes to use FY 2017 JAG award funds to purchase BWC equipment or to implement or enhance BWC programs, must provide to OJP a certification(s) that the unit of local government has policies and procedures in place related to BWC equipment usage, data storage and access, privacy considerations, training, etc. The certification can be found at: https://www.bja.gov/Funding/BodyWornCameraCert.pdf.
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A unit of local government that proposes to use JAG funds for BWC-related expenses will have funds withheld until the required certification is submitted and approved by OJP.
The BJA BWC Toolkit provides model BWC policies and best practices to assist departments in implementing BWC programs.
Apart from the JAG Program, BJA provides funds under the Body-Worn Camera Policy and Implementation Program (BWC Program). The BWC Program allows jurisdictions to develop and implement policies and practices required for effective program adoption and address program factors including the purchase, deployment, and maintenance of camera systems and equipment; data storage and access; and privacy considerations. Interested units of local government may wish to refer to the BWC web page for more information. Units of local government should note, however, that JAG funds may not be used as any part of the 50 percent match required by the BWC Program.
Body Armor Ballistic-resistant and stab-resistant body armor can be funded through the JAG Program, as well as through BJA’s Bulletproof Vest Partnership (BVP) Program. The BVP Program is designed to provide a critical resource to local law enforcement through the purchase of ballistic-resistant and stab-resistant body armor. For more information on the BVP Program, including eligibility and application, refer to the BVP web page. Units of local government should note, however, that JAG funds may not be used as any part of the 50 percent match required by the BVP Program.
Body armor purchased with JAG funds may be purchased at any threat level, make, or model from any distributor or manufacturer, as long as the body armor has been tested and found to comply with the latest applicable National Institute of Justice (NIJ) ballistic or stab standards. In addition, body armor purchased must be made in the United States.
As is the case in the BVP Program, units of local government that propose to purchase body armor with JAG funds must certify that law enforcement agencies receiving body armor have a written “mandatory wear” policy in effect. FAQs related to the mandatory wear policy and certifications can be found at: https://www.bja.gov/Funding/JAGFAQ.pdf. This policy must be in place for at least all uniformed officers before any FY 2017 funding can be used by the unit of local government for body armor. There are no requirements regarding the nature of the policy other than it being a mandatory wear policy for all uniformed officers while on duty. The certification must be signed by the Authorized Representative and must be attached to the application if proposed as part of the application. If the unit of local government proposes to change project activities to utilize JAG funds to purchase body armor after the award is accepted, the unit of local government must submit the signed certification to BJA at that time. A mandatory wear concept and issues paper and a model policy are available by contacting the BVP Customer Support Center at vests@usdoj.gov or toll free at 1–877–758–3787. The certification form related to mandatory wear can be found at: www.bja.gov/Funding/BodyArmorMandatoryWearCert.pdf.
DNA Testing of Evidentiary Materials and Upload of DNA Profiles to a Database
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If JAG Program funds will be used for DNA testing of evidentiary materials, any resulting eligible DNA profiles must be uploaded to the Combined DNA Index System (CODIS, the national DNA database operated by the Federal Bureau of Investigation [FBI]) by a government DNA lab with access to CODIS. No profiles generated with JAG funding may be entered into any other non-governmental DNA database without prior express written approval from BJA.
In addition, funds may not be used for purchase of DNA equipment and supplies when the resulting DNA profiles from such technology are not accepted for entry into CODIS.
Interoperable Communication Units of local government (including subrecipients) that use FY 2017 JAG funds to support emergency communications activities (including the purchase of interoperable communications equipment and technologies such as voice-over-internet protocol bridging or gateway devices, or equipment to support the build out of wireless broadband networks in the 700 MHz public safety band under the Federal Communications Commission [FCC] Waiver Order) should review FY 2017 SAFECOM Guidance. The SAFECOM Guidance is updated annually to provide current information on emergency communications policies, eligible costs, best practices, and technical standards for State, local, tribal, and territorial grantees investing federal funds in emergency communications projects. Additionally, emergency communications projects should support the Statewide Communication Interoperability Plan (SCIP) and be coordinated with the fulltime Statewide Interoperability Coordinator (SWIC) in the State of the project. As the central coordination point for their State’s interoperability effort, the SWIC plays a critical role, and can serve as a valuable resource. SWICs are responsible for the implementation of SCIP through coordination and collaboration with the emergency response community. The U.S. Department of Homeland Security Office of Emergency Communications maintains a list of SWICs for each of the States and territories. Contact OEC@hq.dhs.gov. All communications equipment purchased with FY 2017 JAG Program funding should be identified during quarterly performance metrics reporting.
In order to promote information sharing and enable interoperability among disparate systems across the justice and public safety communities, OJP requires the recipient to comply with DOJ's Global Justice Information Sharing Initiative guidelines and recommendations for this particular grant. Recipients must conform to the Global Standards Package (GSP) and all constituent elements, where applicable, as described at: https://www.it.ojp.gov/gsp_grantcondition. Recipients must document planned approaches to information sharing and describe compliance to GSP and an appropriate privacy policy that protects shared information, or provide detailed justification for why an alternative approach is recommended.
Required compliance with applicable federal laws By law, the chief executive (e.g., the mayor) of each unit of local government that applies for an FY 2017 JAG award must certify that the unit of local government will “comply with all provisions of [the JAG program statute] and all other applicable Federal laws.” To satisfy this requirement, each unit of local government applicant must submit two properly executed certifications using the forms shown in Appendix I and Appendix II.
All applicants should understand that OJP awards, including certifications provided in connection with such awards, are subject to review by DOJ, including by OJP and by the DOJ
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Office of the Inspector General. Applicants also should understand that a materially false, fictitious, or fraudulent statement (or concealment or omission of a material fact) in a certification submitted to OJP in support of an application may be the subject of criminal prosecution, and also may result in civil penalties and administrative remedies for false claims or otherwise. Administrative remedies that may be available to OJP with respect to an FY 2017 award include suspension or termination of the award, placement on the DOJ high risk grantee list, disallowance of costs, and suspension or debarment of the recipient.
BJA areas of emphasis BJA recognizes that there are significant pressures on local criminal justice systems. In these challenging times, shared priorities and leveraged resources can make a significant impact. As a component of OJP, BJA intends to focus much of its work on the areas of emphasis described below, and encourages each unit of local government recipient of an FY 2017 JAG award to join us in addressing these challenges:
• Reducing Gun Violence – Gun violence has touched nearly every State and local government in America. While our nation has made great strides in reducing violent crime, some municipalities and regions continue to experience unacceptable levels of violent crime at rates far in excess of the national average. BJA encourages units of local government to invest JAG funds in programs to combat gun violence, enforce existing firearms laws, and improve the process for ensuring that persons prohibited from purchasing guns are prevented from doing so by enhancing reporting to the FBI’s National Instant Criminal Background Check System (NICS).
• National Incident-Based Reporting System (NIBRS) – The FBI has formally announced its intentions to establish NIBRS as the law enforcement crime data reporting standard for the nation. The transition to NIBRS will provide a more complete and accurate picture of crime at the national, State, and local levels. Once this transition is complete, the FBI will no longer collect summary data and will accept data only in the NIBRS format. Also, once the transition is complete, JAG award amounts will be calculated on the basis of submitted NIBRS data. Transitioning all law enforcement agencies to NIBRS is the first step in gathering more comprehensive crime data. BJA encourages recipients of FY 2017 JAG awards to use JAG funds to expedite the transition to NIBRS.
• Officer Safety and Wellness – The issue of law enforcement safety and wellness is an important priority for the Department of Justice. Preliminary data compiled by the National Law Enforcement Officers Memorial Fund indicates that there were 135 line-ofduty law enforcement deaths in 2016—the highest level in the past 5 years and a 10 percent increase from 2015 (123 deaths).
Firearms-related deaths continued to be the leading cause of death (64), increasing 56 percent from 2015 (41). Of particular concern is that of the 64 firearms-related deaths, 21 were as a result of ambush-style attacks representing the highest total in more than two decades. Traffic-related deaths continued to rise in 2016 with 53 officers killed, a 10 percent increase from 2015 (48 deaths). Additionally, there were 11 job-related illness deaths in 2016, mostly heart attacks.
BJA sees a vital need to focus not only on tactical officer safety concerns but also on health and wellness as they affect officer performance and safety. It is important for law enforcement to have the tactical skills necessary, and also be physically and mentally well, to perform, survive, and be resilient in the face of the demanding duties of the
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profession. BJA encourages units of local government to use JAG funds to address these needs by providing training, including paying for tuition and travel expenses related to attending trainings such as VALOR training, as well as funding for health and wellness programs for law enforcement officers.
• Border Security – The security of United States borders is critically important to the reduction and prevention of transnational drug-trafficking networks and combating all forms of human trafficking within the United States (sex and labor trafficking of foreign nationals and U.S. citizens of all sexes and ages). These smuggling operations on both sides of the border contribute to a significant increase in violent crime and U.S. deaths from dangerous drugs. Additionally, illegal immigration continues to place a significant strain on federal, State, and local resources—particularly on those agencies charged with border security and immigration enforcement—as well as the local communities into which many of the illegal immigrants are placed. BJA encourages units of local government to use JAG funds to support law enforcement hiring, training, and technology enhancement in the area of border security.
• Collaborative Prosecution – BJA supports strong partnerships between prosecutors and police as a means to improve case outcomes and take violent offenders off the street. BJA strongly encourages State and local law enforcement to foster strong partnerships with prosecutors to adopt new collaborative strategies aimed at combating increases in crime, particularly violent crime. (BJA's “Smart Prosecution” Initiative is a related effort by OJP to promote partnerships between prosecutors and researchers to develop and deliver effective, data-driven, evidence-based strategies to solve chronic problems and fight crime.)
Goals, Objectives, and Deliverables In general, the FY 2017 JAG Program is designed to provide additional personnel, equipment, supplies, contractual support, training, technical assistance, and information systems for criminal justice. The JAG Local Program is designed to assist units of local government with respect to criminal justice.
As discussed in more detail below, a unit of local government that receives an FY 2017 JAG award will be required to prepare various types of reports and to submit data related to performance measures and accountability. The Goals, Objectives, and Deliverables are directly related to the JAG Progam accountability measures.
Evidence-Based Programs or Practices OJP strongly emphasizes the use of data and evidence in policy making and program development in criminal justice, juvenile justice, and crime victim services. OJP is committed to:
• Improving the quantity and quality of evidence OJP generates • Integrating evidence into program, practice, and policy decisions within OJP and the
field • Improving the translation of evidence into practice
OJP considers programs and practices to be evidence-based when their effectiveness has been demonstrated by causal evidence, generally obtained through one or more outcome evaluations. Causal evidence documents a relationship between an activity or intervention (including technology) and its intended outcome, including measuring the direction and size of a change, and the extent to which a change may be attributed to the activity or intervention.
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Causal evidence depends on the use of scientific methods to rule out, to the extent possible, alternative explanations for the documented change. The strength of causal evidence, based on the factors described above, will influence the degree to which OJP considers a program or practice to be evidence-based. The OJP CrimeSolutions.gov website is one resource that applicants may use to find information about evidence-based programs in criminal justice, juvenile justice, and crime victim services.
A useful matrix of evidence-based policing programs and strategies is available through the Center for Evidence-Based Crime Policy at George Mason University. BJA offers a number of program models designed to effectively implement promising and evidence-based strategies through the BJA “Smart Suite” of programs, including Smart Policing, Smart Supervision, Smart Pretrial, Smart Defense, Smart Prosecution, Smart Reentry, and others (see: https://www.bja.gov/Programs/CRPPE/smartsuite.html). BJA encourages units of local government to use JAG funds to support these “smart on crime” strategies, including effective partnerships with universities, research partners, and non-traditional criminal justice partners.
BJA Success Stories The BJA Success Stories web page features projects that have demonstrated success or shown promise in reducing crime and positively impacting communities. This web page will be a valuable resource for States, localities, territories, tribes, and criminal justice professionals that seek to identify and learn about JAG and other successful BJA-funded projects linked to innovation, crime reduction, and evidence-based practices. BJA strongly encourages the recipient to submit success stories annually (or more frequently).
If a unit of local government has a success story it would like to submit, it may be submitted through My BJA account, using “add a Success Story” and the Success Story Submission form. Register for a My BJA account using this registration link.
B. Federal Award Information
BJA estimates that it will make up to 1,100 local awards totaling an estimated $83,000,000.
Awards of at least $25,000 are 4 years in length, and award periods will be from October 1, 2016 through September 30, 2020. Extensions beyond this period may be made on a case-bycase basis at the discretion of BJA and must be requested via GMS no less than 30 days prior to the grant end date.
Awards of less than $25,000 are 2 years in length, and award periods will be from October 1, 2016 through September 30, 2018. Extensions of up to 2 years can be requested for these awards via GMS no less than 30 days prior to the grant end date, and will be automatically granted upon request.
All awards are subject to the availability of appropriated funds and to any modifications or additional requirements that may be imposed by statute.
Type of Award BJA expects that any award under this solicitation will be in the form of a grant. See Statutory and Regulatory Requirements; Award Conditions, under Section F. Federal Award Administration Information, for a brief discussion of important statutes, regulations, and award conditions that apply to many (or in some cases, all) OJP grants.
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JAG awards are based on a statutory formula as described below.
Once each fiscal year’s overall JAG Program funding level is determined, BJA works with the Bureau of Justice Statistics (BJS) to begin a four-step grant award calculation process, which, in general, consists of:
(1) Computing an initial JAG allocation for each State, based on its share of violent crime and population (weighted equally).
(2) Reviewing the initial JAG allocation amount to determine if the State allocation is less than the minimum award amount defined in the JAG legislation (0.25 percent of the total). If this is the case, the State is funded at the minimum level, and the funds required for this are deducted from the overall pool of JAG funds. Each of the remaining States receive the minimum award plus an additional amount based on its share of violent crime and population.
(3) Dividing each State’s final award amount (except for the territories and District of Columbia) between the State and its units of local governments at a rate of 60 and 40 percent, respectively.
(4) Determining unit of local government award allocations, which are based on their proportion of the State’s 3-year violent crime average. If the “eligible award amount” for a particular unit of local government as determined on this basis is $10,000 or more, then the unit of local government is eligible to apply directly to OJP (under the JAG Local solicitation) for a JAG award. If the “eligible award amount” to a particular unit of local government as determined on this basis would be less than $10,000, however, the funds are not made available for a direct award to that particular unit of local government, but instead are added to the amount that otherwise would have been awarded to the State.
Financial Management and System of Internal Controls Award recipients and subrecipients (including recipients or subrecipients that are pass-through entities1) must, as described in the Part 200 Uniform Requirements2 as set out at 2 C.F.R. 200.303:
(a) Establish and maintain effective internal control over the Federal award that provides reasonable assurance that [the recipient (and any subrecipient)] is managing the Federal award in compliance with Federal statutes, regulations, and the terms and conditions of the Federal award. These internal controls should be in compliance with guidance in “Standards for Internal Control in the Federal Government” issued by the Comptroller General of the United States and the “Internal Control Integrated Framework”, issued by the Committee of Sponsoring Organizations of the Treadway Commission (COSO).
(b) Comply with Federal statutes, regulations, and the terms and conditions of the Federal awards.
1 For purposes of this solicitation, the phrase “pass-through entity” includes any recipient or subrecipient that provides a subaward ("subgrant”) to carry out part of the funded award or program. 2 The "Part 200 Uniform Requirements” refers to the DOJ regulation at 2 C.F.R Part 2800, which adopts (with certain modifications) the provisions of 2 C.F.R. Part 200.
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(c) Evaluate and monitor [the recipient’s (and any subrecipient’s)] compliance with statutes, regulations, and the terms and conditions of Federal awards.
(d) Take prompt action when instances of noncompliance are identified including noncompliance identified in audit findings.
(e) Take reasonable measures to safeguard protected personally identifiable information and other information the Federal awarding agency or pass-through entity designates as sensitive or [the recipient (or any subrecipient)] considers sensitive consistent with applicable Federal, State, local, and tribal laws regarding privacy and obligations of confidentiality.
To help ensure that applicants understand the administrative requirements and cost principles, OJP encourages prospective applicants to enroll, at no charge, in the DOJ Grants Financial Management Online Training, available here.
Budget and Financial Information Trust Fund – Units of local government may draw down JAG funds either in advance or on a reimbursement basis. To draw down in advance, a trust fund must be established in which to deposit the funds. The trust fund may or may not be an interest-bearing account. If subrecipients draw down JAG funds in advance, they also must establish a trust fund in which to deposit funds.
Tracking and reporting regarding JAG funds used for State administrative costs – As indicated earlier, a unit of local government may use up to 10 percent of a JAG award, including up to 10 percent of any earned interest, for costs associated with administering the award. Administrative costs (when utilized) must be tracked separately; a recipient must report in separate financial status reports (SF-425) those expenditures that specifically relate to each particular JAG award during any particular reporting period.
No commingling – Both the unit of local government recipient and all subrecipients of JAG funds are prohibited from commingling funds on a program-by-program or project-by-project basis. For this purpose, use of the administrative JAG funds to perform work across all active awards in any one year is not considered comingling.
Disparate Certification – In some cases, as defined by the legislation, a disparity may exist between the funding eligibility of a county and its associated municipalities. Three different types of disparities may exist:
• The first type is a zero-county disparity. This situation exists when one or more municipalities within a county are eligible for a direct award but the county is not; yet the county is responsible for providing criminal justice services (such as prosecution and incarceration) for the municipality. In this case, the county is entitled to part of the municipality’s award because it shares the cost of criminal justice operations, although it may not report crime data to the FBI. This is the most common type of disparity.
• A second type of disparity exists when both a county and a municipality within that county qualify for a direct award, but the award amount for the municipality exceeds 150 percent of the county’s award amount.
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• The third type of disparity occurs when a county and multiple municipalities within that county are all eligible for direct awards, but the sum of the awards for the individual municipalities exceeds 400 percent of the county’s award amount.
Jurisdictions certified as disparate must identify a fiscal agent that will submit a joint application for the aggregate eligible allocation to all disparate municipalities. The joint application must determine and specify the award distribution to each unit of local government and the purposes for which the funds will be used. When beginning the JAG application process, a Memorandum of Understanding (MOU) that identifies which jurisdiction will serve as the applicant or fiscal agent for joint funds must be completed and signed by the Authorized Representative for each participating jurisdiction. The signed MOU should be attached to the application. For a sample MOU, go to: www.bja.gov/Funding/JAGMOU.pdf.
Cost Sharing or Match Requirement The JAG Program does not require a match.
For additional cost sharing and match information, see the DOJ Grants Financial Guide.
Pre-Agreement Costs (also known as Pre-award Costs) Pre-agreement costs are costs incurred by the applicant prior to the start date of the period of performance of the grant award.
OJP does not typically approve pre-agreement costs. An applicant must request and obtain the prior written approval of OJP for any such costs. All such costs incurred prior to award and prior to approval of the costs are incurred at the sole risk of the applicant. (Generally, no applicant should incur project costs before submitting an application requesting federal funding for those costs.)
Should there be extenuating circumstances that make it appropriate for OJP to consider approving pre-agreement costs, the applicant may contact the point of contact listed on the title page of this solicitation for the requirements concerning written requests for approval. If approved in advance by OJP, award funds may be used for pre-agreement costs, consistent with the recipient’s approved budget and applicable cost principles. See the section on “Costs Requiring Prior Approval” in the DOJ Grants Financial Guide for more information.
Prior Approval, Planning, and Reporting of Conference/Meeting/Training Costs\ OJP strongly encourages every applicant that proposes to use award funds for any conference-, meeting-, or training-related activity (or similar event) to review carefully—before submitting an application—the OJP and DOJ policy and guidance on approval, planning, and reporting of such events, available at: https://www.ojp.gov/financialguide/DOJ/PostawardRequirements/chapter3.10a.htm.
OJP policy and guidance (1) encourage minimization of conference, meeting, and training costs; (2) require prior written approval (which may affect project timelines) of most conference, meeting, and training costs for cooperative agreement recipients, as well as some conference, meeting, and training costs for grant recipients; and (3) set cost limits, which include a general prohibition of all food and beverage costs.
Costs Associated with Language Assistance (if applicable) If an applicant proposes a program or activity that would deliver services or benefits to individuals, the costs of taking reasonable steps to provide meaningful access to those services
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or benefits for individuals with limited English proficiency may be allowable. Reasonable steps to provide meaningful access to services or benefits may include interpretation or translation services, where appropriate.
For additional information, see the “Civil Rights Compliance” section under “Overview of Legal Requirements Generally Applicable to OJP Grants and Cooperative Agreements - FY 2017 Awards” in the OJP Funding Resource Center.
C. Eligibility Information
For information on eligibility, see the title page of this solicitation.
Note that, as discussed in more detail below, the certification regarding compliance with 8 U.S.C. § 1373 must be executed and submitted before a unit of local government (other than an Indian tribal government) can make a valid award acceptance. Also, a unit of local government may not receive award funds (and its award will include a condition that withholds funds) until it submits a properly executed “Certifications and Assurances by Chief Executive of Applicant Government.”
D. Application and Submission Information
What an Application Should Include This section describes in detail what an application should include. An applicant should anticipate that if it fails to submit an application that contains all of the specified elements, it may negatively affect the review of its application; and, should a decision be made to make an award, it may result in the inclusion of award conditions that preclude the recipient from accessing or using award funds until the recipient satisfies the conditions and OJP makes the funds available.
An applicant may combine the Budget Narrative and the Budget Detail Worksheet in one document. If an applicant submits only one budget document, however, it must contain both narrative and detail information. Please review the “Note on File Names and File Types” under How to Apply to be sure applications are submitted in permitted formats.
OJP strongly recommends that applicants use appropriately descriptive file names (e.g., “Program Narrative,” “Budget Detail Worksheet and Budget Narrative,” “Timelines,” “Memoranda of Understanding,” “Résumés”) for all attachments. Also, OJP recommends that applicants include résumés in a single file.
In general, if a unit of local government fails to submit required information or documents, OJP either will return the unit of local government’s application in the Grants Management System (GMS) for submission of the missing information or documents, or will attach a condition to the award that will withhold award funds until the necessary information and documents are submitted. (As discussed elsewhere in this solicitation, the certification regarding compliance with 8 U.S.C. § 1373—which is set out at Appendix II—will be handled differently. Unless and until that certification is submitted, the unit of local government (other than an Indian tribal government) will be unable to make a valid acceptance of the award.)
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1. Information to Complete the Application for Federal Assistance (SF-424) The SF-424 is a required standard form used as a cover sheet for submission of preapplications, applications, and related information. GMS takes information from the applicant’s profile to populate the fields on this form.
To avoid processing delays, an applicant must include an accurate legal name on its SF424. Current OJP award recipients, when completing the field for “Legal Name,” should use the same legal name that appears on the prior year award document, which is also the legal name stored in OJP’s financial system. On the SF-424, enter the Legal Name in box 5 and Employer Identification Number (EIN) in box 6 exactly as it appears on the prior year award document. An applicant with a current, active award(s) must ensure that its GMS profile is current. If the profile is not current, the applicant should submit a Grant Adjustment Notice updating the information on its GMS profile prior to applying under this solicitation.
A new applicant entity should enter the Official Legal Name and address of the applicant entity in box 5 and the EIN in box 6 of the SF-424.
Intergovernmental Review: This solicitation (“funding opportunity”) is within the scope of Executive Order 12372, concerning State opportunities to coordinate applications for federal financial assistance. See 28 C.F.R. Part 30. An applicant may find the names and addresses of State Single Points of Contact (SPOCs) at the following website: https://www.whitehouse.gov/omb/grants_spoc/. If the State appears on the SPOC list, the applicant must contact the State SPOC to find out about, and comply with, the State’s process under E.O. 12372. In completing the SF-424, an applicant whose State appears on the SPOC list is to make the appropriate selection in response to question 19 once the applicant has complied with its State E.O. 12372 process. (An applicant whose State does not appear on the SPOC list should answer question 19 by selecting the response that the “Program is subject to E.O. 12372 but has not been selected by the State for review.”)
2. Project Abstract Applications should include a high-quality project abstract that summarizes the proposed project in 400 words or less. Project abstracts should be:
• Written for a general public audience. • Submitted as a separate attachment with “Project Abstract” as part of its file name. • Single-spaced, using a standard 12-point font (Times New Roman) with 1-inch margins. • Include applicant name, title of the project, a brief description of the problem to be
addressed and the targeted area/population, project goals and objectives, a description of the project strategy, any significant partnerships, and anticipated outcomes. • Identify up to 10 project identifiers that would be associated with proposed project activities. The list of identifiers can be found at www.bja.gov/funding/JAGIdentifiers.pdf.
3. Program Narrative The following sections should be included as part of the program narrative3:
a. Statement of the Problem – Identify the unit of local government’s strategy/funding priorities for the FY 2017 JAG funds, the subgrant award process and timeline, and a
3 For information on subawards (including the details on proposed subawards that should be included in the application), see "Budget and Associated Documentation" under Section D. Application and Submission Information.
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description of the programs to be funded over the grant period. Units of local government are strongly encouraged to prioritize the funding on evidence-based projects.
b. Project Design and Implementation – Describe the unit of local government’s strategic planning process, if any, that guides its priorities and funding strategy. This should include a description of how the local community is engaged in the planning process and the data and analysis utilized to support the plan; it should identify the stakeholders currently participating in the strategic planning process, the gaps in the needed resources for criminal justice purposes, and how JAG funds will be coordinated with State and related justice funds.
c. Capabilities and Competencies – Describe any additional strategic planning/coordination efforts in which the units of local government participates with other criminal justice criminal/juvenile justice agencies in the State.
d. Plan for Collecting the Data Required for this Solicitation’s Performance Measures – OJP will require each successful applicant to submit specific performance measures data as part of its reporting under the award (see “General Information about PostFederal Award Reporting Requirements” in Section F. Federal Award Administration Information). The performance measures correlate to the goals, objectives, and deliverables identified under “Goals, Objectives, and Deliverables” in Section A. Program Description. Post award, recipients will be required to submit quarterly performance metrics through BJA’s Performance Measurement Tool (PMT), located at: https://bjapmt.ojp.gov. The application should describe the applicant's plan for collection of all of the performance measures data listed in the JAG Program accountability measures at: https://bjapmt.ojp.gov/help/jagdocs.html.
BJA does not require applicants to submit performance measures data with their application. Performance measures are included as an alert that BJA will require successful applicants to submit specific data as part of their reporting requirements. For the application, applicants should indicate an understanding of these requirements and discuss how they will gather the required data, should they receive funding.
Note on Project Evaluations An applicant that proposes to use award funds through this solicitation to conduct project evaluations should be aware that certain project evaluations (such as systematic investigations designed to develop or contribute to generalizable knowledge) may constitute “research” for purposes of applicable DOJ human subjects protection regulations. However, project evaluations that are intended only to generate internal improvements to a program or service, or are conducted only to meet OJP’s performance measure data reporting requirements, likely do not constitute “research.” Each applicant should provide sufficient information for OJP to determine whether the particular project it proposes would either intentionally or unintentionally collect and/or use information in such a way that it meets the DOJ regulatory definition of research that appears at 28 C.F.R. Part 46 (“Protection of Human Subjects”).
Research, for the purposes of human subjects protection for OJP-funded programs, is defined as “a systematic investigation, including research development, testing and evaluation, designed to develop or contribute to generalizable knowledge.” 28 C.F.R. 46.102(d).
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For additional information on determining whether a proposed activity would constitute research for purposes of human subjects protection, applicants should consult the decision tree in the “Research and the Protection of Human Subjects” section of the “Requirements related to Research” web page of the “Overview of Legal Requirements Generally Applicable to OJP Grants and Cooperative Agreements - FY 2017” available through the OJP Funding Resource Center. Every prospective applicant whose application may propose a research or statistical component also should review the “Data Privacy and Confidentiality Requirements” section on that web page.
4. Budget and Associated Documentation
(a) Budget Detail Worksheet A sample Budget Detail Worksheet can be found at www.ojp.gov/funding/Apply/Resources/BudgetDetailWorksheet.pdf. An applicant that submits its budget in a different format should use the budget categories listed in the sample budget worksheet. The Budget Detail Worksheet should break out costs by year.
For questions pertaining to budget and examples of allowable and unallowable costs, see the DOJ Grants Financial Guide.
(b) Budget Narrative The Budget Narrative should thoroughly and clearly describe every category of expense listed in the proposed Budget Detail Worksheet. OJP expects proposed budgets to be complete, cost effective, and allowable (e.g., reasonable, allocable, and necessary for project activities). This narrative should include a full description of all costs, including administrative costs (if applicable).
An applicant should demonstrate in its Budget Narrative how it will maximize cost effectiveness of award expenditures. Budget narratives should generally describe cost effectiveness in relation to potential alternatives and the goals of the project. For example, a budget narrative should detail why planned in-person meetings are necessary, or how technology and collaboration with outside organizations could be used to reduce costs, without compromising quality.
The Budget Narrative should be mathematically sound and correspond clearly with the information and figures provided in the Budget Detail Worksheet. The narrative should explain how the applicant estimated and calculated all costs, and how those costs are necessary to the completion of the proposed project. The narrative may include tables for clarification purposes, but need not be in a spreadsheet format. As with the Budget Detail Worksheet, the Budget Narrative should describe costs by year.
(c) Information on Proposed Subawards (if any), as well as on Proposed Procurement Contracts (if any) Applicants for OJP awards typically may propose to make “subawards.” Applicants also may propose to enter into procurement “contracts” under the award.
Whether—for purposes of federal grants administrative requirements—a particular agreement between a recipient and a third party will be considered a “subaward” or instead considered a procurement “contract” under the award is determined by federal rules and applicable OJP guidance. It is an important distinction, in part because the
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federal administrative rules and requirements that apply to “subawards” and procurement “contracts” under awards differ markedly.
In general, the central question is the relationship between what the third party will do under its agreement with the recipient and what the recipient has committed (to OJP) to do under its award to further a public purpose (e.g., services the recipient will provide, products it will develop or modify, research or evaluation it will conduct). If a third party will provide some of the services the recipient has committed (to OJP) to provide, will develop or modify all or part of a product the recipient has committed (to OJP) to develop or modify, or conduct part of the research or evaluation the recipient has committed (to OJP) to conduct, OJP will consider the agreement with the third party a subaward for purposes of federal grants administrative requirements.
This will be true even if the recipient, for internal or other non-federal purposes, labels or treats its agreement as a procurement, a contract, or a procurement contract. Neither the title nor the structure of an agreement determines whether the agreement—for purposes of federal grants administrative requirements—is a “subaward” or is instead a procurement “contract” under an award.
Additional guidance on the circumstances under which (for purposes of federal grants administrative requirements) an agreement constitutes a subaward as opposed to a procurement contract under an award is available (along with other resources) on the OJP Part 200 Uniform Requirements web page.
(1) Information on proposed subawards and required certification regarding 8 U.S.C. § 1373 from certain subrecipients
General requirement for federal authorization of any subaward; statutory authorizations of subawards under the JAG Program statute. Generally, a recipient of an OJP award may not make subawards (“subgrants”) unless the recipient has specific federal authorization to do so. Unless an applicable statute or DOJ regulation specifically authorizes (or requires) particular subawards, a recipient must have authorization from OJP before it may make a subaward.
JAG subawards that are required or specifically authorized by statute (see 42 U.S.C. § 3751(a) and 42 U.S.C. § 3755) do not require prior approval to authorize subawards. This includes subawards made by units of local government under the JAG Program.
A particular subaward may be authorized by OJP because the recipient included a sufficiently detailed description and justification of the proposed subaward in the application as approved by OJP. If, however, a particular subaward is not authorized by federal statute or regulation and is not sufficiently described and justified in the application as approved by OJP, the recipient will be required, post award, to request and obtain written authorization from OJP before it may make the subaward.
If an applicant proposes to make one or more subawards to carry out the federal award and program, and those subawards are not specifically authorized (or required) by statute or regulation, the applicant should: (1) identify (if known) the proposed subrecipient(s), (2) describe in detail what each subrecipient will do to carry out the federal award and federal program, and (3) provide a justification for the
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subaward(s), with details on pertinent matters such as special qualifications and areas of expertise. Pertinent information on subawards should appear not only in the Program Narrative but also in the Budget Detail Worksheet and budget narrative.
NEW Required certification regarding 8 U.S.C. § 1373 from any proposed subrecipient that is a unit of local government or “public” institution of higher education. Before a unit of local government may subaward FY 2017 award funds to another unit of local government or to a public institution of higher education, it will be required (by award condition) to obtain a properly executed certification regarding compliance with 8 U.S.C. § 1373 from the proposed subrecipient. (This requirement regarding 8 U.S.C. § 1373 will not apply to subawards to Indian tribes). The specific certification the unit of local government must require from another unit of local government will vary somewhat from the specific certification it must require from a public institution of higher education. The forms will be posted and available for download at: https://ojp.gov/funding/Explore/SampleCertifications-8USC1373.htm.
(2) Information on proposed procurement contracts (with specific justification for proposed noncompetitive contracts over $150,000)
Unlike a recipient contemplating a subaward, a recipient of an OJP award generally does not need specific prior federal authorization to enter into an agreement that— for purposes of federal grants administrative requirements—is considered a procurement contract, provided that (1) the recipient uses its own documented procurement procedures and (2) those procedures conform to applicable federal law, including the Procurement Standards of the (DOJ) Part 200 Uniform Requirements (as set out at 2 C.F.R. 200.317 - 200.326). The Budget Detail Worksheet and budget narrative should identify proposed procurement contracts. (As discussed above, subawards must be identified and described separately from procurement contracts.)
The Procurement Standards in the (DOJ) Part 200 Uniform Requirements, however, reflect a general expectation that agreements that (for purposes of federal grants administrative requirements) constitute procurement “contracts” under awards will be entered into on the basis of full and open competition. If a proposed procurement contract would exceed the simplified acquisition threshold—currently, $150,000—a recipient of an OJP award may not proceed without competition, unless and until the recipient receives specific advance authorization from OJP to use a non-competitive approach for the procurement.
An applicant that (at the time of its application) intends—without competition—to enter into a procurement contract that would exceed $150,000 should include a detailed justification that explains to OJP why, in the particular circumstances, it is appropriate to proceed without competition. Various considerations that may be pertinent to the justification are outlined in the DOJ Grants Financial Guide.
(d) Pre-Agreement Costs For information on pre-agreement costs, see Section B. Federal Award Information.
5. Indirect Cost Rate Agreement (if applicable) Indirect costs may be charged to an award only if:
(a) The recipient has a current (that is, unexpired), federally approved indirect cost rate; or
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(b) The recipient is eligible to use, and elects to use, the “de minimis” indirect cost rate described in the (DOJ) Part 200 Uniform Requirements, as set out at 2 C.F.R. 200.414(f).
Note: This rule does not eliminate or alter the JAG-specific restriction in federal law that charges for administrative costs may not exceed 10 percent of the award amount, regardless of the approved indirect cost rate.
An applicant with a current (that is, unexpired) federally approved indirect cost rate is to attach a copy of the indirect cost rate agreement to the application. An applicant that does not have a current federally approved rate may request one through its cognizant federal agency, which will review all documentation and approve a rate for the applicant entity, or, if the applicant’s accounting system permits, applicants may propose to allocate costs in the direct cost categories.
For assistance with identifying the appropriate cognizant federal agency for indirect costs, please contact the OCFO Customer Service Center at 1–800–458–0786 or at ask.ocfo@usdoj.gov. If DOJ is the cognizant federal agency, applicants may obtain information needed to submit an indirect cost rate proposal at: www.ojp.gov/funding/Apply/Resources/IndirectCosts.pdf.
Certain OJP recipients have the option of electing to use the “de minimis” indirect cost rate. An applicant that is eligible to use the “de minimis” rate that wishes to use the “de minimis” rate should attach written documentation to the application that advises OJP of both: (1) the applicant’s eligibility to use the “de minimis” rate, and (2) its election to do so. If an eligible applicant elects the “de minimis” rate, costs must be consistently charged as either indirect or direct costs, but may not be double charged or inconsistently charged as both. The “de minimis” rate may no longer be used once an approved federally-negotiated indirect cost rate is in place. (No entity that ever has had a federally approved negotiated indirect cost rate is eligible to use the “de minimis” rate.)
6. Tribal Authorizing Resolution (if applicable) An applicant that proposes to provide direct services or assistance to residents on tribal lands should include in its application a resolution, a letter, affidavit, or other documentation, as appropriate, that demonstrates (as a legal matter) that the applicant has the requisite authorization from the tribe(s) to implement the proposed project on tribal lands.
OJP will not deny an application for an FY 2017 award for failure to submit such tribal authorizing resolution (or other appropriate documentation) by the application deadline, but a unit of local government will not receive award funds (and its award will include a condition that withholds funds) until it submits the appropriate documentation.
7. Financial Management and System of Internal Controls Questionnaire (including applicant disclosure of high-risk status) Every unit of local government is to complete the OJP Financial Management and System of Internal Controls Questionnaire as part of its application. In accordance with the Part 200 Uniform Requirements as set out at 2 C.F.R. 200.205, federal agencies must have in place a framework for evaluating the risks posed by applicants before they receive a federal award.
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8. Applicant Disclosure of High Risk Status Applicants that are currently designated high risk by another federal grant making agency must disclose that status. For purposes of this disclosure, high risk includes any status under which a federal awarding agency provides additional oversight due to the applicant’s past performance, or other programmatic or financial concerns with the applicant. If an applicant is designated high risk by another federal awarding agency, the applicant must provide the following information:
• The federal agency that currently designated the applicant as high risk • Date the applicant was designated high risk • The high risk point of contact at that federal awarding agency (name, phone number,
and email address). • Reasons for the high risk status, as set out by the federal awarding agency
OJP seeks this information to help ensure appropriate federal oversight of OJP awards. An applicant that is considered “high risk” by another federal awarding agency is not automatically disqualified from receiving an OJP award. OJP may, however, consider the information in award decisions, and may impose additional OJP oversight of any award under this solicitation (including through the conditions that accompany the award document).
9. Disclosure of Lobbying Activities An applicant that expends any funds for lobbying activities is to provide all of the information requested on the form Disclosure of Lobbying Activities (SF-LLL).
10. Certifications and Assurances by the Chief Executive of the Applicant Government A JAG application is not complete, and a unit of local government may not receive award funds, unless the chief executive of the applicant unit of local government (e.g., the mayor) properly executes, and the unit of local government submits, the “Certifications and Assurances by the Chief Executive of the Applicant Government” attached to this solicitation as Appendix I.
OJP will not deny an application for an FY 2017 award for failure to submit these “Certifications and Assurances by the Chief Executive of the Applicant Government” by the application deadline, but a unit of local government will not receive award funds (and its award will include a condition that withholds funds) until it submits these certifications and assurances, properly executed by the chief executive of the unit of local government (e.g., the mayor).
11. Certification of Compliance with 8 U.S.C. § 1373 by the Chief Legal Officer of the Applicant Government The chief legal officer of an applicant unit of local government (e.g., the General Counsel) is to carefully review the “State or Local Government: FY 2017 Certification of Compliance with 8 U.S.C. § 1373” that is attached as Appendix II to this solicitation. If the chief legal officer determines that he or she may execute the certification, the unit of local government is to submit the certification as part of its application. (Note: this requirement does not apply to Indian tribal governments.)
As discussed further below, a unit of local government (other than an Indian tribal government) applicant will be unable to make a valid award acceptance of an FY 2017 JAG
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award unless and until a properly executed certification by its chief legal officer is received by OJP on or before the day the unit of local government submits an executed award document.

12. Additional Attachments

(a) Applicant Disclosure of Pending Applications
Each applicant is to disclose whether it has (or is proposed as a subrecipient under) any pending applications for federally funded grants or cooperative agreements that (1) include requests for funding to support the same project being proposed in the application under this solicitation and (2) would cover identical cost items outlined in the budget submitted to OJP as part of the application under this solicitation. The applicant is to disclose applications made directly to federal awarding agencies, and also applications for subawards of federal funds (e.g., applications to State agencies that will subaward (“subgrant”) federal funds).

OJP seeks this information to help avoid any inappropriate duplication of funding. Leveraging multiple funding sources in a complementary manner to implement comprehensive programs or projects is encouraged and is not seen as inappropriate
duplication.

Each applicant that has one or more pending applications as described above is to provide the following information about pending applications submitted within the last 12 months:

• The federal or State funding agency • The solicitation name/project name • The point of contact information at the applicable federal or State funding agency

Federal or State Funding Agency
DOJ/Office of Community Oriented Policing Services (COPS) Health & Human Services/ Substance Abuse and Mental Health Services Administration

Solicitation Name/Phone/Email for Point of Contact at

SAMPLE Name/Project
Name COPS Hiring

Federal or State Funding Agency Jane Doe, 202/000-0000; jane.doe@usdoj.gov

Program

Drug-Free Communities Mentoring Program/ North County Youth Mentoring Program

John Doe, 202/000-0000; john.doe@hhs.gov

Each applicant should include the table as a separate attachment to its application. The file should be named “Disclosure of Pending Applications.” The applicant Legal Name on
the application must match the entity named on the disclosure of pending applications statement.

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Any applicant that does not have any pending applications as described above is to submit, as a separate attachment, a statement to this effect: “[Applicant Name on SF424] does not have (and is not proposed as a subrecipient under) any pending applications submitted within the last 12 months for federally funded grants or cooperative agreements (or for subawards under federal grants or cooperative agreements) that request funding to support the same project being proposed in this application to OJP and that would cover identical cost items outlined in the budget submitted as part of this application.”
(b) Research and Evaluation Independence and Integrity (if applicable) If an application involves research (including research and development) and/or evaluation, the applicant must demonstrate research/evaluation independence and integrity, including appropriate safeguards, before it may receive award funds. The applicant must demonstrate independence and integrity regarding both this proposed research and/or evaluation, and any current or prior related projects.
Each application should include an attachment that addresses both i. and ii. below.
i. For purposes of this solicitation, each applicant is to document research and evaluation independence and integrity by including one of the following two items:
a. A specific assurance that the applicant has reviewed its application to identify any actual or potential apparent conflicts of interest (including through review of pertinent information on the principal investigator, any co-principal investigators, and any subrecipients), and that the applicant has identified no such conflicts of interest—whether personal or financial or organizational (including on the part of the applicant entity or on the part of staff, investigators, or subrecipients)—that could affect the independence or integrity of the research, including the design, conduct, and reporting of the research.
OR
b. A specific description of actual or potential apparent conflicts of interest that the applicant has identified—including through review of pertinent information on the principal investigator, any co-principal investigators, and any subrecipients—that could affect the independence or integrity of the research, including the design, conduct, or reporting of the research. These conflicts may be personal (e.g., on the part of investigators or other staff), financial, or organizational (related to the applicant or any subrecipient entity). Some examples of potential investigator (or other personal) conflict situations are those in which an investigator would be in a position to evaluate a spouse’s work product (actual conflict), or an investigator would be in a position to evaluate the work of a former or current colleague (potential apparent conflict). With regard to potential organizational conflicts of interest, as one example, generally an organization would not be given an award to evaluate a project, if that organization had itself provided substantial prior technical assistance to that specific project or a location implementing the project (whether funded by OJP or other sources), because the organization in such an
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instance might appear to be evaluating the effectiveness of its own prior work. The key is whether a reasonable person understanding all of the facts would be able to have confidence that the results of any research or evaluation project are objective and reliable. Any outside personal or financial interest that casts doubt on that objectivity and reliability of an evaluation or research product is a problem and must be disclosed.
ii. In addition, for purposes of this solicitation, each applicant is to address possible mitigation of research integrity concerns by including, at a minimum, one of the following two items:
a. If an applicant reasonably believes that no actual or potential apparent conflicts of interest (personal, financial, or organizational) exist, then the applicant should provide a brief narrative explanation of how and why it reached that conclusion. The applicant also is to include an explanation of the specific processes and procedures that the applicant has in place, or will put in place, to identify and prevent (or, at the very least, mitigate) any such conflicts of interest pertinent to the funded project during the period of performance. Documentation that may be helpful in this regard may include organizational codes of ethics/conduct and policies regarding organizational, personal, and financial conflicts of interest. There is no guarantee that the plan, if any, will be accepted as proposed.
OR
b. If the applicant has identified actual or potential apparent conflicts of interest (personal, financial, or organizational) that could affect the independence and integrity of the research, including the design, conduct, or reporting of the research, the applicant is to provide a specific and robust mitigation plan to address each of those conflicts. At a minimum, the applicant is expected to explain the specific processes and procedures that the applicant has in place, or will put in place, to identify and eliminate (or, at the very least, mitigate) any such conflicts of interest pertinent to the funded project during the period of performance. Documentation that may be helpful in this regard may include organizational codes of ethics/conduct and policies regarding organizational, personal, and financial conflicts of interest. There is no guarantee that the plan, if any, will be accepted as proposed.
OJP will assess research and evaluation independence and integrity based on considerations such as the adequacy of the applicant’s efforts to identify factors that could affect the objectivity or integrity of the proposed staff and/or the applicant entity (and any subrecipients) in carrying out the research, development, or evaluation activity; and the adequacy of the applicant’s existing or proposed remedies to control any such factors.
(c) Local Governing Body Review Applicants must submit information via the Certification and Assurances by the Chief Executive (See Appendix I) which documents that the JAG application was made available for review by the governing body of the unit of local government, or to an organization designated by that governing body, for a period that was not less than 30
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days before the application was submitted to BJA. The same Chief Executive Certification will also specify that an opportunity to comment on this application was provided to citizens prior to the application submission to the extent applicable law or established procedures make such opportunity available. In the past, this has been accomplished via submission of specific review dates; now OJP will only accept a chief executive’s certification to attest to these facts. Units of local government may continue to submit actual dates of review should they wish to do so, in addition to the submission of the Chief Executive Certification.
How to Apply An applicant must submit its application through the Grants Management System (GMS), which provides support for the application, award, and management of awards at OJP. Each applicant entity must register in GMS for each specific funding opportunity. Although the registration and submission deadlines are the same, OJP urges each applicant entity to register promptly, especially if this is the first time the applicant is using the system. Find complete instructions on how to register and submit an application in GMS at www.ojp.gov/gmscbt/. An applicant that experiences technical difficulties during this process should email GMS.HelpDesk@usdoj.gov or call 888–549–9901 (option 3), 24 hours every day, including during federal holidays. OJP recommends that each applicant register promptly to prevent delays in submitting an application package by the deadline.
Note on File Types: GMS does not accept executable file types as application attachments. These disallowed file types include, but are not limited to, the following extensions: “.com,” “.bat,” “.exe,” “.vbs,” “.cfg,” “.dat,” “.db,” “.dbf,” “.dll,” “.ini,” “.log,” “.ora,” “.sys,” and “.zip.”
Every applicant entity must comply with all applicable System for Award Management (SAM) and unique entity identifier (currently, a Data Universal Numbering System [DUNS] number) requirements. If an applicant entity has not fully complied with applicable SAM and unique identifier requirements by the time OJP makes award decisions, OJP may determine that the applicant is not qualified to receive an award and may use that determination as a basis for making the award to a different applicant.
All applicants should complete the following steps:
1. Acquire a unique entity identifier (DUNS number). In general, the Office of Management and Budget requires every applicant for a federal award (other than an individual) to include a “unique entity identifier” in each application, including an application for a supplemental award. Currently, a DUNS number is the required unique entity identifier.
A DUNS number is a unique nine-digit identification number provided by the commercial company Dun and Bradstreet. This unique entity identifier is used for tracking purposes, and to validate address and point of contact information for applicants, recipients, and subrecipients. It will be used throughout the life cycle of an OJP award. Obtaining a DUNS number is a free, one-time activity. Call Dun and Bradstreet at 866–705–5711 to obtain a DUNS number or apply online at www.dnb.com. A DUNS number is usually received within 1–2 business days.
2. Acquire registration with the SAM. SAM is the repository for certain standard information about federal financial assistance applicants, recipients, and subrecipients. All applicants for OJP awards (other than individuals) must maintain current registrations in the SAM database.
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Each applicant must update or renew its SAM registration at least annually to maintain an active status. SAM registration and renewal can take as long as 10 business days to complete.
Information about SAM registration procedures can be accessed at https://www.sam.gov/.
3. Acquire a GMS username and password. New users must create a GMS profile by selecting the “First Time User” link under the sign-in box of the GMS home page. For more information on how to register in GMS, go to www.ojp.gov/gmscbt. Previously registered applicants should ensure, prior to applying, that the user profile information is up-to-date in GMS (including, but not limited to, address, legal name of agency and authorized representative) as this information is populated in any new application.
4. Verify the SAM (formerly CCR) registration in GMS. OJP requires each applicant to verify its SAM registration in GMS. Once logged into GMS, click the “CCR Claim” link on the left side of the default screen. Click the submit button to verify the SAM (formerly CCR) registration.
5. Search for the funding opportunity on GMS. After logging into GMS or completing the GMS profile for username and password, go to the “Funding Opportunities” link on the left side of the page. Select BJA and FY 17 Edward Byrne Memorial Local Justice Assistance Grant (JAG) Program.
6. Register by selecting the “Apply Online” button associated with the funding opportunity title. The search results from step 5 will display the “funding opportunity” (solicitation) title along with the registration and application deadlines for this solicitation. Select the “Apply Online” button in the “Action” column to register for this solicitation and create an application in the system.
7. Follow the directions in GMS to submit an application consistent with this solicitation. Once the application is submitted, GMS will display a confirmation screen stating the submission was successful. Important: In some instances, applicants must wait for GMS approval before submitting an application. OJP urges each applicant to submit its application at least 72 hours prior to the application due date.
Note: Application Versions If an applicant submits multiple versions of the same application, OJP will review only the most recent system-validated version submitted.
Experiencing Unforeseen GMS Technical Issues An applicant that experiences unforeseen GMS technical issues beyond its control that prevent it from submitting its application by the deadline may contact the GMS Help Desk or the SAM Help Desk (Federal Service Desk) to report the technical issue and receive a tracking number. The applicant is expected to email the NCJRS Response Center identified in the Contact Information section on the title page within 24 hours after the application deadline to request approval to submit its application after the deadline. The applicant’s email must describe the technical difficulties, and must include a timeline of the applicant’s submission efforts, the complete grant application, the applicant’s DUNS number, and any GMS Help Desk or SAM tracking number(s).
Note: OJP does not automatically approve requests to submit a late application. After OJP reviews the applicant’s request, and contacts the GMS Help Desk to verify the reported technical issues, OJP will inform the applicant whether the request to submit a late application
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has been approved or denied. If OJP determines that the untimely application submission was due to the applicant’s failure to follow all required procedures, OJP will deny the applicant’s request to submit its application.
The following conditions generally are insufficient to justify late submissions to OJP solicitations:
• Failure to register in SAM or GMS in sufficient time (SAM registration and renewal can take as long as 10 business days to complete.)
• Failure to follow GMS instructions on how to register and apply as posted on the GMS website
• Failure to follow each instruction in the OJP solicitation • Technical issues with the applicant’s computer or information technology environment
such as issues with firewalls
E. Application Review Information
Review Process OJP is committed to ensuring a fair and open process for making awards. BJA reviews the application to make sure that the information presented is reasonable, understandable, measurable, and achievable, as well as consistent with the solicitation. BJA will also review applications to help ensure that JAG program-statute requirements have been met.
Pursuant to the (DOJ) Part 200 Uniform Requirements, before awards are made, OJP also reviews information related to the degree of risk posed by applicants. Among other things, to help assess whether an applicant that has one or more prior federal awards has a satisfactory record with respect to performance, integrity, and business ethics, OJP checks whether the applicant is listed in SAM as excluded from receiving a federal award. In addition, if OJP anticipates that an award will exceed $150,000 in federal funds, OJP also must review and consider any information about the applicant that appears in the non-public segment of the integrity and performance system accessible through SAM (currently, the Federal Awardee Performance and Integrity Information System; “FAPIIS”).
Important note on FAPIIS: An applicant, at its option, may review and comment on any information about itself that currently appears in FAPIIS and was entered by a federal awarding agency. OJP will consider any such comments by the applicant, in addition to the other information in FAPIIS, in its assessment of the risk posed by the applicant.
The evaluation of risks goes beyond information in SAM, however. OJP itself has in place a framework for evaluating risks posed by applicants. OJP takes into account information pertinent to matters such as—
1. Applicant financial stability and fiscal integrity 2. Quality of the management systems of the applicant, and the applicant’s ability to meet
prescribed management standards, including those outlined in the DOJ Grants Financial Guide 3. Applicant’s history of performance under OJP and other DOJ awards (including compliance with reporting requirements and award conditions), as well as awards from other federal agencies
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4. Reports and findings from audits of the applicant, including audits under the (DOJ) Part 200 Uniform Requirements
5. Applicant's ability to comply with statutory and regulatory requirements, and to effectively implement other award requirements
Absent explicit statutory authorization or written delegation of authority to the contrary, the Assistant Attorney General will make all final award decisions.
F. Federal Award Administration Information
Federal Award Notices OJP expects to issue award notifications by September 30, 2017. OJP sends award notifications by email through GMS to the individuals listed in the application as the point of contact and the authorizing official. The email notification includes detailed instructions on how to access and view the award documents, and steps to take in GMS to start the award acceptance process. GMS automatically issues the notifications at 9:00 p.m. eastern time on the award date.
NOTE: In order validly to accept an award under the FY 2017 JAG Program, a unit of local government (other than an Indian tribal government) must submit to GMS the certification by its chief legal officer regarding compliance with 8 U.S.C. § 1373, executed using the form that appears in Appendix II. (The form also may be downloaded at https://ojp.gov/funding/Explore/SampleCertifications-8USC1373.htm.) Unless the executed certification either (1) is submitted to OJP together with the signed award document or (2) is uploaded in GMS no later than the day the signed award document is submitted, OJP will reject as invalid any submission by a unit of local government (other than an Indian tribal government) that purports to accept an award under this solicitation.
Rejection of an initial submission as an invalid award acceptance is not a denial of the award. Consistent with award requirements, once the unit of local government does submit the necessary certification regarding 8 U.S.C. § 1373, the unit of local government will be permitted to submit an award document executed by the unit of local government on or after the date of that certification.
Also, in order for a unit of local government applicant validly to accept an award under the FY 2017 JAG Program, an individual with the necessary authority to bind the applicant will be required to log in; execute a set of legal certifications and a set of legal assurances; designate a financial point of contact; thoroughly review the award, including all award conditions; and sign and accept the award. The award acceptance process requires physical signature of the award document by the authorized representative and the scanning of the fully executed award document (along with the required certification regarding 8 U.S.C. § 1373, if not already uploaded in GMS) to OJP.
Statutory and Regulatory Requirements; Award Conditions If selected for funding, in addition to implementing the funded project consistent with the OJPapproved application, the recipient must comply with all award requirements (including all award conditions), as well as all applicable requirements of federal statutes and regulations (including those referred to in assurances and certifications executed as part of the application or in
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connection with award acceptance, and administrative and policy requirements set by statute or regulation).
OJP strongly encourages prospective applicants to review information on post-award legal requirements generally applicable to FY 2017 OJP awards and common OJP award conditions prior to submitting an application.
Applicants should consult the “Overview of Legal Requirements Generally Applicable to OJP Grants and Cooperative Agreements - FY 2017 Awards,” available in the OJP Funding Resource Center. In addition, applicants should examine the following two legal documents, as each successful applicant must execute both documents in GMS before it may receive any award funds.
• Certifications Regarding Lobbying; Debarment, Suspension and Other Responsibility Matters; and Drug-Free Workplace Requirements
• OJP Certified Standard Assurances (attached to this solicitation as Appendix IV)
The web pages accessible through the “Overview of Legal Requirements Generally Applicable to OJP Grants and Cooperative Agreements - FY 2017 Awards” are intended to give applicants for OJP awards a general overview of important statutes, regulations, and award conditions that apply to many (or in some cases, all) OJP grants and cooperative agreements awarded in FY 2017. Individual OJP awards typically also will include additional award conditions. Those additional conditions may relate to the particular statute, program, or solicitation under which the award is made; to the substance of the funded application; to the recipient's performance under other federal awards; to the recipient's legal status (e.g., as a for-profit entity); or to other pertinent considerations.
Individual FY 2017 JAG awards will include two new express conditions that, with respect to the “program or activity” that would be funded by the FY 2017 award, are designed to ensure that States and units of local government that receive funds from the FY 2017 JAG award: (1) permit personnel of the U.S. Department of Homeland Security (DHS) to access any correctional or detention facility in order to meet with an alien (or an individual believed to be an alien) and inquire as to his or her right to be or remain in the United States and (2) provide at least 48 hours’ advance notice to DHS regarding the scheduled release date and time of an alien in the jurisdiction’s custody when DHS requests such notice in order to take custody of the alien pursuant to the Immigration and Nationality Act.
Compliance with the requirements of the two foregoing new award conditions will be an authorized and priority purpose of the award. The reasonable costs (to the extent not reimbursed under any other federal program) of developing and putting into place statutes, rules, regulations, policies, or practices as required by these conditions, and to honor any duly authorized requests from DHS that is encompassed by these conditions, will be allowable costs under the award.
General Information about Post-Federal Award Reporting Requirements A unit of local government recipient of an award under this solicitation will be required to submit the following reports and data:
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Required reports. Recipients typically must submit quarterly financial status reports, semiannual progress reports, final financial and progress reports, and, if applicable, an annual audit report in accordance with the (DOJ) Part 200 Uniform Requirements or specific award conditions. Future awards and fund drawdowns may be withheld if reports are delinquent. (In appropriate cases, OJP may require additional reports.)
Awards that exceed $500,000 will include an additional condition that, under specific circumstances, will require the recipient to report (to FAPIIS) information on civil, criminal, and administrative proceedings connected with (or connected to the performance of) either the OJP award or any other grant, cooperative agreement, or procurement contract from the federal government. Additional information on this reporting requirement appears in the text of the award condition posted on the OJP website at: https://ojp.gov/funding/FAPIIS.htm
Data on performance measures. In addition to required reports, each recipient of an award under this solicitation also must provide data that measure the results of the work done under the award. To demonstrate program progress and success, as well as to assist DOJ with fulfilling its responsibilities under GPRA and the GPRA Modernization Act of 2010, OJP will require State recipients to provide accountability metrics data. Accountability metrics data must be submitted through BJA’s Performance Measurement Tool (PMT), available at https://bjapmt.ojp.gov. The accountability measures are available at: https://bjapmt.ojp.gov/help/jagdocs.html. (Note that if a law enforcement agency receives JAG funds from a State, the State must submit quarterly accountability metrics data related to training that officers have received on use of force, racial and ethnic bias, de-escalation of conflict, and constructive engagement with the public.)
OJP may restrict access to award funds if a recipient of an OJP award fails to report required performance measures data in a timely manner.
G. Federal Awarding Agency Contact(s)
For OJP contact(s), see the title page of this solicitation.
For contact information for GMS, see the title page.
H. Other Information
Freedom of Information Act and Privacy Act (5 U.S.C. § 552 and 5 U.S.C. § 552a) All applications submitted to OJP (including all attachments to applications) are subject to the federal Freedom of Information Act (FOIA) and to the Privacy Act. By law, DOJ may withhold information that is responsive to a request pursuant to FOIA if DOJ determines that the responsive information either is protected under the Privacy Act or falls within the scope of one of nine statutory exemptions under FOIA. DOJ cannot agree in advance of a request pursuant to FOIA not to release some or all portions of an application.
In its review of records that are responsive to a FOIA request, OJP will withhold information in those records that plainly falls within the scope of the Privacy Act or one of the statutory exemptions under FOIA. (Some examples include certain types of information in budgets, and names and contact information for project staff other than certain key personnel.) In appropriate
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circumstances, OJP will request the views of the applicant/recipient that submitted a responsive document. For example, if OJP receives a request pursuant to FOIA for an application submitted by a nonprofit or for-profit organization or an institution of higher education, or for an application that involves research, OJP typically will contact the applicant/recipient that submitted the application and ask it to identify—quite precisely—any particular information in the application that applicant/recipient believes falls under a FOIA exemption, the specific exemption it believes applies, and why. After considering the submission by the applicant/recipient, OJP makes an independent assessment regarding withholding information. OJP generally follows a similar process for requests pursuant to FOIA for applications that may contain law-enforcement sensitive information. Provide Feedback to OJP To assist OJP in improving its application and award processes, OJP encourages applicants to provide feedback on this solicitation, the application submission process, and/or the application review process. Provide feedback to OJPSolicitationFeedback@usdoj.gov. IMPORTANT: This email is for feedback and suggestions only. OJP does not reply to messages it receives in this mailbox. A prospective applicant that has specific questions on any program or technical aspect of the solicitation must use the appropriate telephone number or email listed on the front of this solicitation document to obtain information. These contacts are provided to help ensure that prospective applicants can directly reach an individual who can address specific questions in a timely manner. If you are interested in being a reviewer for other OJP grant applications, please email your résumé to ojppeerreview@lmsolas.com. (Do not send your résumé to the OJP Solicitation Feedback email account.) Note: Neither you nor anyone else from your organization or entity can be a peer reviewer in a competition in which you or your organization/entity has submitted an application.
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Application Checklist

Edward Byrne Memorial Justice Assistance Grant (JAG) Program: FY 2017 Local Solicitation

This application checklist has been created as an aid in developing an application.

What an Applicant Should Do:

Prior to Registering in GMS:

_____ Acquire a DUNS Number

(see page 27)

_____ Acquire or renew registration with SAM

(see page 27)

To Register with GMS:

_____ For new users, acquire a GMS username and password*

(see page 27)

_____ For existing users, check GMS username and password* to ensure account access

(see page 27)

_____ Verify SAM registration in GMS

(see page 27)

_____ Search for correct funding opportunity in GMS

(see page 27)

_____ Select correct funding opportunity in GMS

(see page 27)

_____ Register by selecting the “Apply Online” button associated with the funding opportunity

title

(see page 27)

_____ Read OJP policy and guidance on conference approval, planning, and reporting

available at ojp.gov/financialguide/DOJ/PostawardRequirements/chapter3.10a.htm

(see page 14)

_____ If experiencing technical difficulties in GMS, contact the NCJRS Response Center

(see page 2)

*Password Reset Notice – GMS users are reminded that while password reset capabilities exist, this function is only associated with points of contact designated within GMS at the time the account was established. Neither OJP nor the GMS Help Desk will initiate a password reset unless requested by the authorized official or a designated point of contact associated with an award or application.

Overview of Post-Award Legal Requirements:

_____ Review the “Overview of Legal Requirements Generally Applicable to OJP Grants and Cooperative Agreements - FY 2017 Awards” in the OJP Funding Resource Center.

Scope Requirement:

_____ The federal amount requested is within the allowable limit(s) of the FY 2017 JAG Allocations List as listed on BJA’s JAG web page.

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What an Application Should Include:

_____ Application for Federal Assistance (SF-424)

(see page 16)

_____ Project Abstract

(see page 16)

_____ Program Narrative

(see page 17)

_____ Budget Detail Worksheet

(see page 18)

_____ Budget Narrative

(see page 18)

_____ Indirect Cost Rate Agreement (if applicable)

(see page 21)

_____ Tribal Authorizing Resolution (if applicable)

(see page 21)

_____ Financial Management and System of Internal Controls Questionnaire (see page 22)

_____ Disclosure of Lobbying Activities (SF-LLL) (if applicable)

(see page 22)

_____ Certifications and Assurances by Chief Executive

(see page 22)

_____ Certification of Compliance with 8 U.S.C. § 1373 by Chief Legal Officer (Note: this

requirement does not apply to Indian tribal governments.)

(see page 23)

_____ OJP Certified Standard Assurances

(see page 40)

_____ Additional Attachments

_____ Applicant Disclosure of Pending Applications

(see page 23)

_____ Research and Evaluation Independence and Integrity (if applicable)

(see page 24)

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Appendix I
Certifications and Assurances by the Chief Executive of the Applicant Government
Template for use by chief executive of the “Unit of local government” (e.g., the mayor)
Note: By law, for purposes of the JAG Program, the term “unit of local government ” includes a town, township, village, parish, city, county, borough, or other general purpose political subdivision of a state; or, it may also be a federally recognized Indian tribal government that performs law enforcement functions (as determined by the Secretary of the Interior). A unit of local government may be any law enforcement district or judicial enforcement district established under applicable State law with authority to independently establish a budget and impose taxes; for example, in Louisiana, a unit of local government means a district attorney or parish sheriff.
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Appendix II
State or Local Government: Certification of Compliance with 8 U.S.C. § 1373
Template for use by the chief legal officer of the “Local Government” (e.g., the General Counsel) (Note: this Certification is not required by Indian tribal
government applicants.) Available for download at: https://ojp.gov/funding/Explore/SampleCertifications-8USC1373.htm
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Appendix III
8 U.S.C. § 1373 (as in effect on June 21, 2017)
Communication between government agencies and the Immigration and Naturalization Service
(a) In general Notwithstanding any other provision of Federal, State, or local law, a Federal, 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, the Immigration and Naturalization Service information regarding the citizenship or immigration status, lawful or unlawful, of any individual. (b) Additional authority of government entities Notwithstanding any other provision of Federal, State, or local law, no person or agency may prohibit, or in any way restrict, a Federal, State, or local government entity from doing any of the following with respect to information regarding the immigration status, lawful or unlawful, of any individual: (1) Sending such information to, or requesting or receiving such information from, the Immigration and Naturalization Service. (2) Maintaining such information. (3) Exchanging such information with any other Federal, State, or local government entity. (c) Obligation to respond to inquiries The Immigration and Naturalization Service shall respond to an inquiry by a Federal, State, or local government agency, seeking to verify or ascertain the citizenship or immigration status of any individual within the jurisdiction of the agency for any purpose authorized by law, by providing the requested verification or status information.
See also provisions set out at (or referenced in) 8 U.S.C. § 1551 note (“Abolition … and Transfer of Functions”)
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Appendix IV
OJP Certified Standard Assurances
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 Case 3:17-cv-04701-WHO Document 11 Filed 10/13/17 Page 1 of 310

1 XAVIER BECERRA

Attorney General of California

2 ANGELA SIERRA

Senior Assistant Attorney General

3 SATOSHI YANAI

Supervising Deputy Attorney General

4 SARAH BELTON

LISA EHRLICH

5 LEE SHERMAN

Deputy Attorneys General

6 State Bar No. 272271

300 S. Spring St., Suite 1702

7

Los Angeles, CA 90013

Telephone: (213) 269-6404

8

Fax: (213) 897-7605

E-mail: Lee.Sherman@doj.ca.gov

9 Attorneys for the State of California

10 IN THE UNITED STATES DISTRICT COURT
11 FOR THE NORTHERN DISTRICT OF CALIFORNIA
12 SAN FRANCISCO DIVISION
13

14

15 STATE OF CALIFORNIA, ex rel. XAVIER Case No. 17-cv-4701 BECERRA, in his official capacity as
16 Attorney General of the State of California

17

18

v.

Plaintiff, FIRST AMENDED COMPLAINT FOR DECLARATORY AND INJUNCTIVE RELIEF

19 JEFFERSON B. SESSIONS, in his official
20 capacity as Attorney General of the United States; ALAN R. HANSON, in his official
21 capacity as Acting Assistant Attorney General; UNITED STATES
22 DEPARTMENT OF JUSTICE; and DOES 1-100,
23 Defendants.
24

25

26

27

28

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1

INTRODUCTION

2

1. Plaintiff State of California, ex rel. Xavier Becerra, California Attorney General

3 (“Plaintiff”) brings this complaint to protect California from the Trump Administration’s attempt

4 to usurp the State and its political subdivisions’ discretion to determine how to best protect public

5 safety in their jurisdictions. The Administration has threatened to withhold congressionally

6 appropriated federal funds unless the State and local jurisdictions acquiesce to the President’s

7 immigration enforcement demands, and is misinterpreting federal law to do so. The State now

8 faces the immediate prospect of losing $31.1 million between two federal grants as a byproduct of

9 the federal government’s pattern of trying to intimidate state and local governments into altering

10 their public-safety oriented laws and policies. This is unconstitutional and should be halted.

11

2. Congress has appropriated $28.3 million in law enforcement funding to California and

12 its political subdivisions pursuant to the Edward Byrne Memorial Justice Assistance Grant

13 (“JAG”) program. The United States Department of Justice (“USDOJ”), led by Attorney General

14 Jefferson B. Sessions III, and the Office of Justice Programs (“OJP”), led by Acting Assistant

15 Attorney General Alan R. Hanson (collectively, with USDOJ and Attorney General Sessions, the

16 “Defendants”), are responsible for administering these grants.

17

3. JAG awards are provided to each state, and certain local jurisdictions within each

18 state, to, among other things, support law enforcement programs, reduce recidivism, conduct

19 crime prevention and education programs for at-risk youth, and support programs for crime

20 victims and witnesses. Every state is entitled by law to a share of these funds.

21

4. The JAG authorizing statute, 34 U.S.C. § 10151 et seq., requires that jurisdictions

22 comply with “applicable Federal laws.” The statute governing OJP, 34 U.S.C. § 10102(a)(6)

23 (“Section 10102”), also allows for the imposition of “special conditions,” which historically have

24 been understood to refer to conditions imposed to address performance issues with particular

25 high-risk grantees, and not as conditions to be placed on all grantees.

26

5. Defendants have added three immigration enforcement related conditions to JAG,

27 each of which are relevant to this lawsuit. First, in Fiscal Year 2016, USDOJ added a condition

28 requiring recipient jurisdictions to comply with 8 U.S.C. § 1373 (“Section 1373”), which
1
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1 prohibits restrictions on certain exchanges of immigration and citizenship status information, and

2 the maintaining of immigration status information (the “JAG Section 1373 Condition”).

3 Defendants kept the Section 1373 condition in the JAG Fiscal Year 2017 State Solicitation that 4 they announced on July 25, 2017.1 Meanwhile, in Fiscal Year 2017, USDOJ has added a similar

5 Section 1373 condition to the Community Oriented Policing Services (“COPS”) grant, for which

6 the California Department of Justice (“CalDOJ”) has two applications pending worth $2.8 million

7 dollars for investigating illicit drug distribution (“COPS Section 1373 Condition,” collectively

8 with the JAG Section 1373 Condition, the “Section 1373 Conditions”).2

9

6. Also in this year’s JAG Solicitations, for the first time, Defendants imposed two

10 additional so-called “special conditions” on all JAG recipients that require compliance with

11 immigration enforcement activities. These conditions require jurisdictions to: (a) provide federal

12 immigration enforcement agents with the Department of Homeland Security (“DHS”) access to

13 detention facilities to interview inmates who are “aliens” or believed to be “aliens” (the “Access

14 Condition”); and (b) provide 48 hours advance notice to DHS regarding the scheduled release

15 date of an “alien” upon request by DHS (the “Notification Condition”). In another litigation by

16 the City of Chicago surrounding these same conditions, USDOJ attached to a declaration by

17 Defendant Hanson submitted in opposition to the city’s motion for preliminary injunction what

18 USDOJ represented to be the final conditions. Those represented final conditions show that

19 jurisdictions will have to enact an affirmative “statute,” “rule,” “regulation,” “policy” or

20 “practice” that is “designed to ensure” compliance with these conditions. In effect, Defendants

21 attempt to create, without congressional approval, a national requirement that state and local law

22 enforcement engage in specific behaviors to assist in the Executive’s approach to federal

23 immigration enforcement.

24

1 U.S. Dep’t of Justice, Edward Byrne Memorial Justice Assistance Grant Program: FY

2017 State Solicitation (“JAG State Solicitation) (attached as Ex. A); see also U.S. Dep’t of 25 Justice, Edward Byrne Memorial Justice Assistance Grant Program: FY 2017 Local Solicitation

(“JAG Local Solicitation, collectively with the JAG State Solicitation, “JAG Solicitations”) 26 (attached as Ex. B).

2 U.S. Dep’t of Justice, 2017 COPS Anti-Methamphetamine (CAMP) Application Guide 27 (“CAMP Solicitation”) (attached as Ex. C); U.S. Dep’t of Justice, 2017 COPS Office Anti-Heroin

Task Force (AHTF) Program Application Guide (“AHTF Solicitation,” collectively with the 28 CAMP Solicitation, the “COPS Solicitations”) (attached as Ex. D).

2

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1

7. Moreover, while Section 10102 allows for the imposition of “special conditions,” it

2 does not provide OJP with the authority to add these particular substantive immigration

3 conditions. These are not special conditions, as that term is generally understood, since they are

4 applicable to all recipients, not just high-risk grantees. In addition, they conflict with the JAG

5 authorizing statute’s Congressional intent to: (a) guarantee the delivery of appropriated formula

6 grant funding to particular state and local jurisdictions so long as they satisfy the requirements

7 found in federal law; and (b) not condition funding on immigration enforcement related activities.

8

8. Defendants also have exceeded constitutional limits under the Spending Clause of the

9 United States Constitution. The JAG Section 1373, Access, and Notification Conditions are not

10 sufficiently related to the federal purpose areas of the JAG funding scheme designed by Congress,

11 and the Access and Notification Conditions are too ambiguous to provide clear notice to the State

12 or its political subdivisions as to what is needed to comply.

13

9. The JAG Section 1373, Access, and Notification Conditions also violate the

14 Administrative Procedure Act (“APA”), 5 U.S.C. § 551 et seq., because of their constitutional

15 infirmities, and because Defendants acted in excess of their statutory authority and in an arbitrary

16 and capricious manner.

17

10. Defendants have threatened to find California in violation of Section 1373, indicating

18 they will enforce the Section 1373 Conditions against the State and its local jurisdictions, thus

19 disqualifying them from receiving the JAG and COPS awards. Since California’s laws comply

20 with Section 1373, the State is left to guess what Defendants may possibly do, and which laws

21 Defendants may find to be offensive. Defendants have made statements indicating that they find

22 one group of State statutes that define the circumstances where state or local law enforcement

23 may assist in federal immigration enforcement, i.e. the Transparency and Responsibility Using

24 State Tools Act (“TRUST Act”), Cal. Gov’t Code § 7282 et seq., the Transparent Review of

25 Unjust Transfers and Holds (“TRUTH Act”), Cal. Gov’t Code § 7283 et seq., and the California

26 Values Act, Cal. Gov’t Code § 7284 et seq., as violating Section 1373, although they do not

27 restrict the exchanging or maintaining of immigration and/or citizenship status information. With

28 respect to the California Values Act, recently signed into law on October 5, 2017, President
3
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1 Trump directly threatened that he would use de-funding “as a weapon” against the State if the bill

2 became law.

3

11. Alternatively, the only arguably relevant State statutes that even touch upon

4 immigration or citizenship status information are the State’s confidentiality statutes that protect

5 residents’ personal information, and are necessary for the State and its local governments to

6 effectuate governmental activities (“Shield Confidentiality Statutes”). Interpreting Section 1373

7 as to the first group of statutes (the TRUST, TRUTH, and Values Acts) would be in contravention

8 of the intent of Section 1373, which only limits restrictions on the exchanging and maintaining of

9 immigration and/or citizenship status information. Reading Section 1373 as applying to the

10 Shield Confidentiality Statutes would be inconsistent with the intent of the rest of the

11 Immigration and Naturalization Act (“INA”), substantially interfere with fundamental State and

12 local governmental functions, and amount to an infringement on the State’s sovereignty that the

13 Tenth Amendment of the U.S. Constitution does not allow.

14

12. Since the State has a credible fear that Defendants will find the State non-compliant

15 with Section 1373, there is a case and controversy, and the State is entitled to a declaration that

16 these State laws comply with Section 1373. Such a declaration is particularly necessary now

17 when the State entity that receives the State’s share of JAG funding, the Board of State and

18 Community Corrections (“BSCC”) was one of ten jurisdictions that already provided Defendants

19 with a requested legal opinion confirming compliance with Section 1373. Defendants have failed

20 to timely respond to inform the State whether they believe the State complies with Section 1373.

21 Instead, on October 12, 2017, Defendants announced the results of a preliminary compliance

22 assessments on all of the other nine jurisdictions except California, including determining that

23 five jurisdictions do not appear to comply with Section 1373. Defendants’ letters communicating

24 preliminary non-compliance determinations to these five jurisdictions only add to the State’s

25 credible fear because Defendants’ assessments demonstrate that they are wrongfully seeking to

26 enforce Section 1373 as to laws and policies that regulate the disclosure of release dates, protect

27 the disclosure of information regarding victims of crime, and potentially, to laws and policies that

28 prohibit the initiation of immigration status investigations. The State and its local jurisdictions
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1 will soon have to submit an unqualified certification of compliance with Section 1373 under

2 penalty of perjury without knowing Defendants’ position on the State’s laws in the face of

3 Defendants’ determinations on other jurisdictions.

4

13. All three conditions, in conjunction with Defendants likely enforcement of Section

5 1373 against the State, harm California and its local jurisdictions. If California and local

6 jurisdictions do not accept the funds authorized by the JAG statute and appropriated by Congress,

7 important programs will need to be cut. The same holds true with respect to the State and the

8 COPS grants. And if these conditions pressure the State and/or its localities to change their

9 public-safety oriented laws and policies in order to ensure they comply with these ambiguous

10 conditions or Defendant’s incorrect interpretation of Section 1373, they will have abandoned

11 policies that the State and local jurisdictions have found to be effective in their communities. As

12 a result, the State and its localities will lose control of their ability to focus their resources on

13 fighting crime rather than on federal immigration enforcement. And the trust and cooperation

14 that the State’s laws and local ordinances are intended to build between law enforcement and

15 immigrant communities will be eroded.

16

14. The California Legislature, as well as local governments throughout the State,

17 carefully crafted a statutory scheme that allows law enforcement resources to be allocated in the

18 most effective manner to promote public safety for all people in California, regardless of

19 immigration status, national origin, ancestry, or any other characteristic protected by California

20 law. The Defendants’ actions and statements threaten that design and intrude on the sovereignty

21 of California and its local jurisdictions.

22

15. Defendants originally indicated that they aimed to send JAG and COPS award

23 notifications by September 30, 2017. The State has yet to receive an award notification, and upon

24 information and belief, its local jurisdictions have yet to receive award notifications either. Once

25 Defendants send the JAG award notification to the State and its localities, according to USDOJ,

26 the State and its local jurisdictions will have 45 days to accept the award conditions and execute

27 the necessary certifications. Defendants have announced that they will not provide any awards to

28 jurisdictions that do not meet the JAG Section 1373, Access, and Notification Conditions.
5
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1 Defendants’ actions and statements also raise doubt as to whether the State will receive COPS

2 funding conditioned on compliance with Section 1373, which USDOJ expects to award “as

3 quickly as possible.” In light of Defendants’ actions with respect to California, and their Section

4 1373 determinations as to other jurisdictions, the State therefore immediately confronts the

5 prospect of losing $31.1 million for these critical law enforcement programs between these two

6 programs. Without this grant funding, California’s award recipients and the programs funded will

7 be harmed, which will have a detrimental effect on state and local law enforcement and budgets.

8

16. For these reasons, and those discussed below, the Court should strike down the

9 Section 1373, Access, and Notification Conditions in the JAG Solicitations as unconstitutional

10 and/or as a violation of the APA, and declare that the State’s statutes identified in this Complaint

11 comply with Section 1373 and do not render the State or its jurisdictions ineligible for JAG

12 funding, and the State ineligible for COPS funding.

13

JURISDICTION AND VENUE

14

17. Jurisdiction is proper in this Court pursuant to 28 U.S.C. § 1331 because this case

15 involves a civil action arising under the Constitution and the laws of the United States. The Court

16 also has jurisdiction under 28 U.S.C. § 1346 because this is a civil action against the federal

17 government founded upon the Constitution and an Act of Congress. Jurisdiction is proper under

18 the judicial review provisions of the Administrative Procedure Act, 5 U.S.C. §§ 701-06. The

19 Court has authority to provide relief under the Declaratory Judgment Act, 28 U.S.C. § 2201.

20

18. Pursuant to 28 U.S.C. § 1391(e)(1) and (3), venue is proper in the Northern District of

21 California because the Attorney General and the State of California have offices at 455 Golden

22 Gate Avenue, San Francisco, California and at 1515 Clay Street, Oakland, California and

23 Defendants have offices at 450 Golden Gate Avenue, San Francisco, California.

24

INTRADISTRICT ASSIGNMENT

25

19. Assignment to the San Francisco Division of this District is proper pursuant to Civil

26 Local Rule 3-2(c)-(d) because Plaintiff, the State of California, and Defendants both maintain

27 offices in the District in San Francisco.

28 ///

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1

PARTIES

2

20. Plaintiff State of California is a sovereign state in the United States of America.

3

21. Xavier Becerra is the Attorney General of California, and as such, is the chief law

4 officer in the State and has “direct supervision over every … sheriff and over such other law

5 enforcement officers as may be designated by laws, in all matters pertaining to their respective

6 offices.” Cal. Const., art. V, § 13; Cal. Gov’t Code § 12500, et seq.; see Pierce v. Super., 1

7 Cal.2d 759, 761-62 (1934) (Attorney General “has the power to file any civil action or proceeding

8 directly involving the rights and interests of the state. . . and the protection of public rights and

9 interests.”).

10

22. California is aggrieved by the actions of Defendants and has standing to bring this

11 action because of the injury to its sovereignty as a state caused by the challenged federal actions.

12 The inclusion of unconstitutional and unlawful conditions as part of the JAG award impairs the

13 State’s exercise of its police power in a manner it deems necessary to protect the public safety.

14 The JAG Access and Notification Conditions, and Defendants’ actions with respect to the Section

15 1373 Conditions, burden California’s exercise of its sovereign power to enforce its laws. The

16 JAG Section 1373, Access, and Notification Conditions place a regulatory burden on California

17 as a funding recipient, obligating the State to continuously monitor compliance of all subgrantees

18 throughout the State, which will result in increased staff time and expenses. Defendants’

19 imposition of the Access and Notification Conditions also place a burden on any entity with a

20 State or State-contracted correctional or detention facility that receives JAG funds to impose

21 affirmative policies to comply with the conditions.

22

23. As a result of Defendants’ unconstitutional actions, the State of California, including

23 its political subdivisions, is in imminent danger of losing federal funding, including $28.3 million

24 from the JAG program this fiscal year, of which $17.7 million is owed to the State itself, and $2.8

25 million from the COPS grants.

26

24. Plaintiff Attorney General Xavier Becerra is the chief law officer of the State and the

27 head of the California Department of Justice, which is a subgrantee for JAG and recipient of

28 COPS grant funding. Cal. Const., art. V, § 13. Attorney General Becerra, on behalf of
7
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1 California, has standing to bring this action because funding for law enforcement throughout the

2 State is at stake. As the Chief Law Officer, the Attorney General is responsible for ensuring that

3 the laws of the State are enforced. Id. The JAG Access and Notification Conditions, and

4 Defendants’ apparent interpretation of Section 1373, threaten California statutes. In addition, the

5 Attorney General has standing on the basis of the requirement that his office certify compliance

6 with Section 1373, as applicable to the “program or activity” to be funded, for CalDOJ with

7 respect to the COPS grants and for the State and “any entity, agency, or official” of the State for

8 JAG.

9

25. Defendant U.S. Department of Justice (“USDOJ”) is an executive department of the

10 United States of America pursuant to 5 U.S.C. § 101 and a federal agency within the meaning of

11 28 U.S.C. § 2671. As such, it engages in agency action, within the meaning of 5 U.S.C. § 702

12 and is named as a defendant in this action pursuant to 5 U.S.C. § 702. USDOJ is responsible for

13 administering the JAG and COPS funds appropriated by Congress.

14

26. Defendant Jefferson B. Sessions III, is Attorney General of the United States, and

15 oversees the USDOJ, including the Office of Justice Programs (“OJP”), which administers JAG,

16 and the Office of Community Oriented Policing Services, which administers COPS grants.

17 Defendant Sessions made statements announcing the JAG Access and Notification Conditions on

18 the USDOJ website on July 25, 2017. He is sued in his official capacity pursuant to 5 U.S.C. §

19 702.

20

27. Defendant Alan R. Hanson is Acting Assistant Attorney General in charge of the OJP,

21 which administers JAG funding and which set forth the so-called “special conditions” at issue.

22 He is sued in his official capacity pursuant to 5 U.S.C. § 702.

23

28. Each of the Defendants named in this Complaint are acting in their official capacity

24 for the United States government bearing responsibility, in whole or in part, for the acts

25 enumerated in this Complaint.

26

29. The true names and capacities of Defendants identified as DOES 1-100 are unknown

27 to Plaintiff, and Plaintiff will amend this Complaint to insert the true names and capacities of

28 those fictitiously named Defendants when they are ascertained.
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1

FACTUAL ALLEGATIONS

2 I. 3 4

CALIFORNIA’S LAWS SEEK TO PROTECT THE STATE RESIDENTS’ SAFETY AND WELFARE BY FOCUSING LAW ENFORCEMENT ON CRIMINAL ACTIVITY AND BY BUILDING TRUST BETWEEN LAW ENFORCEMENT AND COMMUNITIES
30. California state and local law enforcement agencies (“LEAs”), guided by the duly

5 enacted laws of the State and ordinances of local jurisdictions, are tasked with effectively

6 policing, protecting, and serving all residents, including more than 10 million foreign-born

7 individuals, who live in the State. California’s laws implicated in this suit are a valid exercise of

8 the State’s police power to regulate regarding the health, welfare, and public safety of its

9 residents. These laws strengthen community policing efforts by encouraging undocumented

10 victims to report crimes to local law enforcement so that perpetrators are apprehended before

11 harming others.

12

31. The purpose of these California laws is to ensure that law enforcement resources are

13 focused on a core public safety mission and to build trust and cooperation between law

14 enforcement and the State’s immigrant communities. When local and state LEAs engage in

15 immigration enforcement, as Defendants contemplate, vulnerable victims and witnesses are less

16 likely to come forward to report crimes.

17

32. California’s laws are not unique. Many jurisdictions across the country have policies

18 that define the circumstances under which local law enforcement personnel may expend time and

19 resources in furtherance of federal immigration enforcement. Those jurisdictions variously

20 impose limits on compliance with Immigration and Customs Enforcement (“ICE”) detainer

21 requests, ICE notification requests about release dates, and ICE’s access to detainees, or provide

22 additional procedural protections to them.

23

A. The TRUST Act

24

33. In 2013, California enacted the TRUST Act, Cal. Gov’t Code § 7282 et seq. The

25 TRUST Act defined the circumstances under which local LEAs may detain an individual at the

26 request of federal immigration authorities. The TRUST Act went into effect on January 1, 2014.

27

34. The TRUST Act was intended to address numerous public safety concerns regarding

28 the federal practice of issuing detainers to local law enforcement. Among the Legislature’s
9
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1 concerns were that federal courts have concluded that detainer requests do not provide sufficient

2 probable cause, and data showing that detainer requests “have erroneously been placed on United

3 States citizens, as well as immigrants who are not deportable.” Assem. Bill No. 4, Reg. Sess.

4 (Cal. 2013) § 1(c).

5

35. The Legislature found that “immigration detainers harm community policing efforts

6 because immigrant residents who are victims of or witnesses to crime, including domestic

7 violence, are less likely to report crime or cooperate with law enforcement when any contact with

8 law enforcement could result in deportation.” Id. § 1(d). The Legislature also considered data

9 demonstrating that the vast majority of individuals detained had no criminal history or were only

10 convicted of minor offenses, and research establishing that “immigrants, including undocumented

11 immigrants, do not commit crimes at higher rates than American-born residents.” Id.

12

36. The TRUST Act set forth two conditions that local law enforcement must meet to

13 have discretion to detain a person pursuant to an “immigration hold” (also known as a “detainer

14 request” or “detainer hold”) that occurs when a federal immigration agent requests that the law

15 enforcement official “maintain custody of the individual for a period not to exceed 48 hours,

16 excluding Saturdays, Sundays, and holidays.” Cal. Gov’t Code § 7282(c). First, the detention

17 could not “violate any federal, state, or local law, or any local policy,” which includes the Fourth

18 Amendment of the U.S. Constitution. Id. § 7282.5(a). Second, law enforcement officers could

19 only detain someone with certain, specified criminal backgrounds, an individual on the California

20 Sex and Arson Registry, or a person charged with a serious or violent felony who was the subject

21 of a probable cause determination from a magistrate judge. Id. § 7282.5(a)(1)-(6). Only when

22 both of these conditions were met could local law enforcement detain an individual “on the basis

23 of an immigration hold after the individual becomes eligible for release from custody.” Id. §

24 7282.5(b).

25

B. The TRUTH Act

26

37. In 2016, California enacted the TRUTH Act, Cal. Gov’t Code § 7283 et seq., which

27 took effect on January 1, 2017. The purpose of the TRUTH Act is to increase transparency about

28 immigration enforcement and “to promote public safety and preserve limited resources because
10
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1 entanglement between local law enforcement and ICE undermines community policing strategies

2 and drains local resources.” Assem. Bill No. 2792, Reg. Sess. (Cal. 2016) § 2(a)-(c), (g)-(i).

3

38. Under the TRUTH Act, before an interview with ICE takes place, a local law

4 enforcement officer must provide the detained individual with a “written consent form that explains

5 the purpose of the interview, that the interview is voluntary, and that he or she may decline to be

6 interviewed or may choose to be interviewed only with his or her attorney present.” Cal. Gov’t

7 Code § 7283.1(a). In addition, when a local LEA receives a detainer hold, notification, or transfer

8 request, the local LEA must “provide a copy of the request to the [detained] individual and inform

9 him or her whether the law enforcement agency intends to comply with the request.” Id. §

10 7283.1(b). If the LEA complies with ICE’s request to notify ICE as to when the individual will be

11 released, it must also “promptly provide the same notification in writing to the individual and to

12 his or her attorney or to one additional person who the individual shall be permitted to designate.”

13 Id.

14

39. The TRUTH Act has never prohibited a jurisdiction from allowing ICE to access its

15 jails to interview inmates.

16

C. The California Values Act

17

40. On October 5, 2017, Governor Edmund G. Brown Jr. signed the California Values

18 Act, Cal. Gov’t Code § 7284 et seq, into law effective January 1, 2018. In conjunction with this

19 measure, California amended the TRUST Act.

20

41. Consistent with the Legislature’s purpose in passing the TRUST and TRUTH Acts, in

21 its findings, the Legislature emphasized that “a relationship of trust between California’s

22 immigrant community and state and local agencies” is “central to the public safety of the people

23 of California.” Cal. Gov’t Code § 7284.2(b). The Legislature recognized “[t]his trust is

24 threatened when state and local agencies are entangled with federal immigration enforcement,

25 with the result that immigrant community members fear approaching police when they are

26 victims of, and witnesses to, crimes, seeking basic health services, or attending school, to the

27 detriment of public safety and the well-being of all Californians.” Id. § 7284.2(c). The

28 Legislature declared that the focus of the Value Act is on “[e]nsur[ing] effective policing, to
11
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1 protect the safety, well-being, and constitutional rights of the people of California, and to direct

2 the state’s limited resources to matters of greatest concern to state and local governments.” Id. §

3 7284.2(f).

4

42. The Values Act generally prohibits LEAs from using agency money or personnel to

5 ask an individual about his or her immigration status for immigration enforcement purposes. See

6 id. § 7284.6(a)(1)(A) (effective Jan. 1, 2018).

7

43. The Values Act, expanding upon the limitations contained in the prior iteration of the

8 TRUST Act, prohibits compliance with detainer requests. See id. § 7284.6(a)(1)(B) (effective

9 Jan. 1, 2018). In conjunction with the passage of the Values Act, the TRUST Act was amended

10 to identify the circumstances when local law enforcement has discretion to respond to

11 “notification requests.” Id. § 7282.5(a) (effective Jan. 1, 2018). “Notification requests” are

12 requests by an immigration authority asking that a law enforcement official inform it “of the

13 release date and time in advance of the public of an individual in its custody.” See id. §§ 7282(c)

14 (effective Jan. 1, 2018), 7283(f).

15

44. Under the Values Act, LEAs have discretion to comply with notification requests if

16 doing so would not “violate any federal, state, or local law, or any local policy.” Id. § 7282.5(a)

17 (effective Jan. 1, 2018); see id. § 7284.6(a)(1)(C) (effective Jan. 1, 2018). In addition, the Values

18 Act allows LEAs to comply with notification requests under one of two scenarios. First, LEAs

19 may respond to notification requests regarding someone who was previously convicted of one or

20 more of a multitude of felonies or misdemeanors identified in the TRUST Act, a person charged

21 with one or more of an array of felonies who was subject to a probable cause determination from

22 a magistrate judge, or an individual on the California Sex and Arson Registry. Id. § 7282.5(a)(1)-

23 (5) (effective Jan. 1, 2018). Alternatively, LEAs may comply with a notification request if the

24 information requested is already “available to the public.” Id. § 7284.6(a)(1)(C) (effective Jan. 1,

25 2018).

26

45. The Values Act also prohibits LEAs from using agency or department money or

27 personnel to “provid[e] personal information, as defined in Section 1798.3 of the Civil Code,

28 about an individual” “for immigration enforcement purposes,” unless that information is publicly
12
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1 available. Id. § 7284.6(a)(1)(D) (effective Jan. 1, 2018). “Personal information” is defined in the

2 Civil Code as any information “that identifies or describes an individual, including, but not

3 limited to, his or her name, social security number, physical description, home address, home

4 telephone number, education, financial matters, and medical or employment history” and

5 “includes statements made by, or attributed to, the individual.” Cal. Civ. Code § 1798.3(a).

6

46. The Values Act includes a savings clause that permits compliance with all aspects of

7 Section 1373:

8

This section does not prohibit or restrict any government entity or official from sending to,

9

or receiving from, federal immigration authorities, information regarding the citizenship

10

or immigration status, lawful or unlawful, of an individual, or from requesting from

11

federal immigration authorities immigration status information, lawful or unlawful, of any

12

individual, or maintaining or exchanging that information with any other federal, state, or

13

local government entity, pursuant to Sections 1373 and 1644 of title 8 of the United States

14

Code.

15 Cal. Gov’t Code § 7284.6(e).

16

47. Neither the Values nor TRUTH Acts prohibit a jurisdiction from allowing ICE to

17 access its jails to interview inmates. The Values Act explicitly reaffirms the absence of any such

18 restriction, and requires only that state and local law enforcement, including the California

19 Department of Corrections and Rehabilitation, comply with the TRUTH Act when providing such

20 access to immigration authorities. Id. §§ 7284.6(b)(5), 7284.10(a) (both effective Jan. 1, 2018).

21

D. State Shield Confidentiality Statutes

22

48. California has also enacted statutes aimed at protecting the confidentiality of sensitive

23 information the State and its localities collect and maintain in a number of discrete circumstances.

24 California does this, in part, by directing governmental employees, officers, and agents to

25 affirmatively act, as part of their official duties, to protect information and records containing the

26 citizenship or immigration status of individuals, along with other types of personal information.

27

49. These statutes are not intended to be a “sword” to interfere with the federal

28 government’s programs. Rather, these confidentiality statutes are a “shield” meant to protect
13
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1 residents’ personal information from third parties when the State has determined that such

2 confidentiality is essential to the performance of particular state and local government functions.

3 Assurances of confidentiality in these instances are necessary for the proper operation of the state

4 and local criminal and juvenile justice systems.

5

50. The Shield Confidentiality Statutes discussed below are those that are arguably

6 applicable to the “program or activity” to be funded for State recipients of a JAG award.

7

51. California Penal Code sections 679.10 (effective January 1, 2016) and 679.11

8 (effective January 1, 2017) are the State laws that implement a federal process of immigration

9 benefits for victims of certain enumerated crimes who have cooperated or are currently

10 cooperating with law enforcement in the investigation or prosecution of a crime (U-Visas),

11 including victims of human trafficking (T-Visas). See 8 C.F.R. § 214.14. Under both California

12 Penal Code sections 679.10 and 679.11, certifying entities are prohibited from disclosing the

13 immigration status of a victim to anyone, except to comply with federal law or legal process, or if

14 authorized by the victim or person requesting the certification form. Cal. Pen. Code §§

15 679.10(k), 679.11(k). The purpose for preserving this confidentiality is to promote the shared

16 federal and state mission to encourage victims of rape, torture, and human trafficking to report

17 these serious crimes to law enforcement.

18

52. Similarly, California Penal Code section 422.93, effective January 1, 2005, protects

19 information provided by victims and witnesses of hate crimes. The Legislature’s purpose for

20 section 422.93 is to further California’s interest in protecting the public from hate crimes and

21 violence by “encouraging all persons who are victims of or witnesses to crimes, or who otherwise

22 can give evidence in a criminal investigation, to cooperate with the criminal justice system, and

23 not to penalize these persons for being victims or for cooperating with the criminal justice

24 system.” Id. § 422.93(a). Subdivision (b) of section 422.93 accomplishes this legislative purpose

25 by providing:

26

Whenever an individual is a victim of or witness to a hate crime, or who otherwise can

27

give evidence in a hate crime investigation, is not charged with or convicted of

28

committing any crime under state law, a peace officer may not detain the individual

14

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1

exclusively for any actual or suspected immigration violation or report or turn the

2

individual over to federal immigration authorities.

3 Id. § 422.93(b).

4

53. California has a well-established policy of preserving the confidentiality of juvenile

5 case files and information collected in the juvenile justice system. The Legislature has found that

6 “[c]onfidentiality is integral to the operation of the juvenile justice system in order to avoid

7 stigma and promote rehabilitation for all youth.” Cal. Welf. & Inst. Code § 831(a). Thus, as a

8 general rule, juvenile court records are kept confidential and only made available to statutorily

9 designated parties or by court order. See id. § 827; Cal. R. of Ct. 5.552(b)-(c). Declaratory of

10 this long-standing law, California Welfare and Institutions Code section 831, effective January 1,

11 2016, makes clear that this prohibition applies equally to immigration status information in

12 juvenile case files as to all other covered personal information. Cal. Welf. & Inst. Code § 831.

13

54. This prohibition is consistent with California’s implementation of the “Special

14 Immigrant Juvenile” federal process through which certain abused, neglected, or abandoned

15 undocumented immigrant children may seek legal immigration status only after obtaining a

16 predicate order from a state court. 8 U.S.C. § 1101(a)(27)(J). California Code of Civil Procedure

17 section 155, effective January 1, 2015, guides California courts in making the judicial

18 determinations that are necessary for a predicate order. Under the statute, information about the

19 child’s immigration status must “remain confidential and shall be available for inspection only by

20 the court, the child who is the subject of the proceeding, the parties, the attorneys for the parties,

21 the child’s counsel and the child’s guardian.” Cal. Civ. Proc. Code § 155(c). Preserving this

22 confidentiality protects already vulnerable children who may apply for Special Immigrant

23 Juvenile status in order to provide for their long-term safety and security.

24 II. CONGRESS DID NOT INTEND JAG TO BE CONDITIONED ON STATE AND LOCAL LAW ENFORCEMENT ASSISTING IN FEDERAL IMMIGRATION ENFORCEMENT
25

26

55. JAG is a formula grant administered by OJP within USDOJ. JAG funding is

27 authorized by Congress under 34 U.S.C. § 10151, et seq. The authorizing statute has been

28 amended numerous times since its inception in 1988, evolving into the JAG program as it exists
15
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1 today.
2 56. The Anti-Drug Abuse Act of 1988 amended the Omnibus Crime Control and Safe
3 Streets Act of 1968 to create the Edward Byrne Memorial State and Local Law Enforcement
4 Assistance Programs grants (“Byrne Grants”) “to assist States and units of local government in
5 carrying out specific programs which offer a high probability of improving the functioning of the
6 criminal justice system.” Anti-Drug Abuse Act of 1988, Pub. L. No. 100-690, tit. VI, § 6091(a),
7 102 Stat. 4181 (1988) (repealed 2006). Congress placed a “special emphasis” on programs that
8 support national drug control priorities across states and jurisdictions. Id. Congress identified 21
9 “purpose areas” for which Byrne Grants could be used. Many of the purpose areas relate to the
10 investigation, enforcement, and prosecution of drug offenses. See id., tit. V, § 5104. Immigration
11 enforcement was never specified in any of the grant purpose areas.
12 57. In amendments between 1994 and 2000, Congress identified eight more purpose areas
13 for which Byrne funding could be used, bringing the total to 29. 42 U.S.C. § 3751(b) (as it
14 existed on Dec. 21, 2000) (repealed 2006). Immigration enforcement was not specified in any of
15 these eight additional purpose areas.
16 58. For Fiscal Year 1996, Congress separately authorized Local Law Enforcement Block
17 Grants (“LLEBG”) that directed payment to units of local government for the purpose of hiring
18 more police officers or “reducing crime and improving public safety.” Local Government Law
19 Enforcement Block Grants Act of 1995, H.R. 728, 104th Cong. (1995). Congress identified eight
20 “purpose areas” for LLEBG, none of which were immigration enforcement.
21 59. The Byrne Grant and LLEBG programs were then merged to eliminate duplication,
22 improve their administration, and to provide State and local governments “more flexibility to
23 spend money for programs that work for them rather than to impose a ‘one size fits all’ solution”
24 to local law enforcement. Pub. L. No. 108-447, 118 Stat. 2809 (2004); H.R. Rep. No. 109-233, at
25 89 (2005); see also 34 U.S.C. § 10151(a), (b)(1).
26 60. Now the JAG authorizing statute enumerates eight purpose areas for: (A) law
27 enforcement programs; (B) prosecution and court programs; (C) prevention and education
28
16
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1 programs; (D) corrections and community corrections programs; (E) drug treatments and

2 enforcement programs; (F) planning, evaluation, and technology improvement programs; (G)

3 crime victim and witness programs; and (H) mental health programs related to law enforcement

4 and corrections. 34 U.S.C. § 10152(a)(1).

5

61. The purpose areas for these grants are to support “criminal justice” programs;

6 immigration enforcement is generally civil in nature. See Arizona v. U.S., 567 U.S. 387, 396

7 (2012). Immigration enforcement was also never specified in the purpose areas for any of these

8 grants throughout this entire legislative history.

9

62. In 2006, Congress repealed the only immigration enforcement related requirement that

10 had ever existed for JAG funding, a requirement that the chief executive officer of the state

11 receiving JAG funding provide certified records of criminal convictions of “aliens.” See

12 Immigration Act of 1990, Pub. L. No. 101-649, tit. V, § 507(a), 104 Stat. 4978, 5050-51 (1990);

13 Miscellaneous and Technical Immigration and Naturalization Amendments of 1991, Pub. L. No.

14 102-232, tit. III, § 306(a)(6), 105 Stat. 1733, 1751 (1991) (repealed 2006). The repeal of this

15 provision evidences Congress’ intent not to condition JAG funding on immigration enforcement

16 related activities. This is consistent with the statutory scheme that does not include a purpose

17 area connected to immigration enforcement.

18

63. In addition, more recently, Congress has considered but declined to adopt legislation

19 that would penalize cities for setting their own law enforcement priorities and attempt to impose 20 conditions similar to those here.3

21 III. THE JAG AUTHORIZING STRUCTURE REQUIRES THAT STATE AND LOCAL JURISDICTIONS RECEIVE FORMULA GRANTS
22

23

A. The JAG Formula Structure and Conditions

24

64. When creating the merged JAG funding structure in 2006, Congress set a formula to

25 apportion JAG funds to state and local jurisdictions. 34 U.S.C. § 10156. Population and violent

26 crime rates are used to calculate each state’s allocation. 34 U.S.C. § 10156(a)(1). Congress

27 3 See, e.g., Stop Dangerous Sanctuary Cities Act, S. 3100, 114th Cong. (2016) (cloture on the
28 motion to proceed rejected).
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1 guarantees to each state a minimum allocation of JAG funds. 34 U.S.C. § 10156(a)(2).

2

65. In addition to determining the amount of money received by grantees within each

3 state, Congress set forth how that money is to be shared between state and local jurisdictions.

4 Under the statutory formula, 60 percent of the total allocation to a state must be given directly to

5 the state. 34 U.S.C. § 10156(b)(1).

6

66. The statutory formula also provides that 40 percent of the total allocation to a state

7 must be given to local governments within the state. 34 U.S.C. § 10156(d)(1). Each unit of local

8 government receives funds based on its crime rate. 34 U.S.C. § 10156(d)(2)(A).

9

67. According to Congress’s JAG funding scheme, states and local governments that

10 apply for JAG funds are required to make limited certifications and assurances. Beyond

11 ministerial requirements identified in the authorizing statute, the chief executive officer of each

12 applicant must certify that: (A) the law enforcement programs to be funded meet all requirements

13 of the JAG authorizing statute; (B) all information in the application is correct; (C) there was

14 coordination with affected agencies; and (D) the applicant will comply with all provisions of the

15 JAG authorizing statute. 34 U.S.C. § 10153(a)(5).

16

68. Congress has enacted reductions or penalties in JAG funds when certain conditions

17 occur, such as a state failing to substantially implement the Sex Offender Registration and

18 Notification Act or a governor not certifying compliance with the national Prison Rape

19 Elimination Act standards. See 34 U.S.C. §§ 20927, 30307(e)(2). Unlike the Access and

20 Notification Conditions, these conditions were explicitly added by Congress.

21

B. California’s Allocation and Use of the JAG Award

22

69. Based on the formula prescribed by statute, California is expected to receive

23 approximately $28.3 million in JAG funding in Fiscal Year 2017, with $17.7 million going to the

24 Board of State and Community Corrections (“BSCC”), the entity that receives the formula grant

25 funds that are allocated to the State.

26

70. The BSCC disburses JAG funding using subgrants predominately to local jurisdictions

27 throughout California to fund programs that meet the purpose areas identified in the JAG

28 authorizing statute. Between Fiscal Years 2015-17, the BSCC funded 32 local jurisdictions and
18
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1 CalDOJ.

2

71. In the past, the BSCC prioritized subgrants to those jurisdictions that focus on

3 education and crime prevention programs, law enforcement programs, and court programs,

4 including indigent defense. Some examples of California jurisdictions’ purpose-driven use of

5 JAG funds include: (a) implementing programs to improve educational outcomes, increase

6 graduation rates, and curb truancy; (b) providing youth and adult gang members with multi-

7 disciplinary education, employment, treatment, and other support services to prevent gang

8 involvement, reduce substance abuse, and curtail delinquency and recidivism; (c) implementing

9 school-wide prevention and intervention initiatives for some of the county’s highest-risk students;

10 (d) providing comprehensive post-dispositional advocacy and reentry services to improve

11 outcomes and reduce recidivism for juvenile probationers; (e) providing a continuum of detention

12 alternatives to juvenile offenders who do not require secure detention, which includes assessment,

13 referral, case advocacy, home detention, reporting centers, non-secure shelter, intensive case

14 management and wraparound family support services; and (f) funding diversion and re-entry

15 programs for both minors and young adult offenders.

16 IV. DEFENDANTS ADDED THE SECTION 1373 CONDITION AND THE AMBIGUOUS ACCESS

AND NOTIFICATION CONDITIONS WITHOUT SUFFICIENTLY EXPLAINING THE

17

RELATIONSHIP BETWEEN THE CONDITIONS TO THE JAG PROGRAM

18

A. Description of the JAG Solicitation

19

72. On July 25, 2017, OJP announced the Fiscal Year 2017 State JAG Solicitation. OJP

20 set the deadline for applications as August 25, 2017. On August 3, 2017, OJP announced the

21 Fiscal Year 2017 JAG Local Solicitation with a deadline of September 5, 2017.

22

73. In the JAG Solicitations, OJP announced that jurisdictions will have to comply with

23 three conditions that are related to immigration enforcement. To start, recipients will have to

24 certify compliance with Section 1373. Section 1373 is entitled “Communication between

25 government agencies and the Immigration and Naturalization Services” (the “JAG Section 1373

26 Condition”). Section 1373(a) provides:

27

Notwithstanding any other provision of Federal, State, or local law, a Federal state or local

28

government entity or official may not prohibit, or in any way restrict any government

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1

entity or official from sending to, or receiving from [federal immigration enforcement

2

authorities] information regarding the citizenship or immigration status, lawful or

3

unlawful, of any individual.

4 8 U.S.C. § 1373(a).

5

74. Section 1373(b) also prohibits any “person or agency” from restricting federal, state,

6 or local government entities from “requesting” immigration status information from federal

7 immigration authorities, “maintaining” such information, or “exchanging” such information with

8 federal, state, or local government entities. Id. § 1373(b).

9

75. In Fiscal Year 2016, OJP first announced that Section 1373 was an “applicable law”

10 under JAG, and would be a required condition for all grantees receiving JAG funds. For that

11 fiscal year, OJP required the BSCC to submit a legal opinion validating its compliance with

12 Section 1373.

13

76. In addition to the requirement that jurisdictions certify compliance with Section 1373,

14 for the first time in Fiscal Year 2017, OJP announced two additional substantive “special

15 conditions” related to federal immigration enforcement. To receive a JAG award, jurisdictions

16 must:

17

• permit personnel of the U.S. Department of Homeland Security (“DHS”) to access any

18

correctional or detention facility in order to meet with an “alien” (or an individual

19

believed to be an “alien”) and inquire as to his or her right to be or remain in the

20

United States (the “Access Condition”); and

21

• provide at least 48 hours’ advance notice to DHS regarding the scheduled release date

22

and time of an “alien” in the jurisdiction’s custody when DHS requests such notice in

23

order to take custody of the individual pursuant to the Immigration and Nationality

24

Act (the “Notification Condition”).

25 Ex. A, at 32. Both of these conditions, as well as the JAG Section 1373 Condition, exist in the

26 State and Local JAG Solicitations.

27

77. The State and its local jurisdictions will also have to make the following

28 representations about the immigration enforcement related conditions in order to receive a grant
20
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1 or subgrant:

2

• The chief law officer of the jurisdiction, including the California Attorney General,

3

must sign an affidavit certifying compliance with Section 1373, under penalty of

4

perjury, on behalf of the State and “any entity, agency, or official” of the State as

5

applicable to the “program or activity” to be funded. See Exh. A, Appx. II.

6

• The chief executive officer of the jurisdiction, including the Governor of the State of

7

California, must sign an affidavit making a number of assurances, under penalty of

8

perjury, including that the chief executive adopts the chief law officer’s certification of

9

compliance with Section 1373. See Exh. A, Appx I.

10

• The subrecipients must certify compliance with Section 1373, as applicable to the

11

program and award to be funded, and assure that they will comply with all award

12

conditions, including the Access and Notification Conditions. See id. at 20-21.

13

78. Based on information and belief, Plaintiff understands that Defendants instructed

14 applicants that they would not accept altered certifications.

15

79. On August 25, 2017, the BSCC submitted the State’s application for JAG. In that

16 application, the BSCC stated that it “withholds any commitment at this time concerning new

17 grant conditions, pending receipt of the award documents.”

18

80. In the JAG Solicitations, OJP anticipated that it would “issue award notifications by

19 September 30, 2017.” Id. at 31. The USDOJ Financial Guide explains that jurisdictions “have

20 45 days from the award date to accept [an] OJP … award document or the award may be 21 rescinded.”4

22

81. At no point has any Defendant provided an explanation as to how the Section 1373,

23 Access, and Notification Conditions are consistent with Congress’s intent in adopting and

24 authorizing funds for the JAG program.

25

B. Description of the Represented JAG Award Final Conditions

26

82. The State has not received the final award conditions as of the date of this filing.

27 4 U.S. Dep’t of Justice, 2015 DOJ Grants Financial Guide, § 2.2,
28 https://www.justice.gov/ovw/file/892031/download.
21
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1

83. USDOJ identified what it represented to be the final award conditions in its filing in

2 the lawsuit challenging these same conditions pending in the Northern District of Illinois. See Ex.

3 A and B to the Decl. of Alan R. Hanson, City of Chicago v. Sessions, Case No. 17-cv-5720 (N.D.

4 Ill. Aug. 24, 2017), ECF No. 32-1. Paragraphs 53 and 54 of those represented final conditions

5 describe the JAG Section 1373 Condition. In addition to completing the Section 1373

6 certification described above, the grant recipient for the state must obtain a certification of

7 compliance with Section 1373 from any subgrantees before issuing an award. Id., Ex. A, ¶ 53(2).

8 The grant recipient must also monitor the subgrantee’s compliance with the JAG Section 1373

9 Condition and “promptly notify OJP (in writing) if the recipient, from its requisite monitoring of

10 compliance with award conditions or otherwise, has credible evidence that indicates that the

11 funded ‘program or activity’ of the recipient, or of any [governmental] subrecipient” does not

12 comply with Section 1373. Id. at ¶¶ 53(3), 54(1)(D).

13

84. Paragraph 55 of the represented final conditions describes the Access and Notification

14 Conditions as requiring states to have an affirmative statute, rule, regulation, policy, or practice

15 “designed to ensure” compliance with the conditions for state or state-contracted correctional

16 facilities “[w]ith respect to the ‘program or activity’ that is funded.” The “[r]equirement” in full

17 says:

18

1. Requirement

19

With respect to the “program or activity” that is funded (in whole or in part) by this

20

award, as of the date the recipient accepts this award, and throughout the remainder of

21

the period of performance for the award—

22

A. A State statute, or a State rule, -regulation, -policy, or –practice, must be in place

23

that is designed to ensure that agents of the United States acting under color of federal

24

law in fact are given to access any State (or State-contracted) correctional facility for

25

the purpose of permitting such agents to meet with individuals who are (or are

26

believed by such agents to be) aliens and to inquire as to such individuals’ right to be

27

or remain in the Unites States.

28

B. A State statute, or a State rule, -regulation, -policy, or –practice, must be in place

22

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1

that is designed to ensure that, when a State (or State-contracted) correctional facility

2

receives from DHS a formal written request authorized by the Immigration and

3

Nationality Act that seeks advance notice of the scheduled release date and time for a

4

particular alien in such facility, then such facility will honor such request and– as early

5

as practicable (see para. 4.B. of this condition) – provide the requested notice to

6

DHS.5

7 Id. at ¶ 55(1).

8

85. Paragraph 56 of the represented final conditions impose similar obligations on local

9 government recipients and subrecipients. Recipients that disburse funding to subrecipients must

10 “monitor[] subrecipient compliance with the requirements of this condition.” Id. at ¶ 55(2).

11

C. The Access and Notification Conditions do not Provide Jurisdictions with

Clear Notice of what the Conditions Require 12

13

86. It is ambiguous whether the Access and Notification Conditions prohibit grant

14 recipients from possessing certain laws and practices. For example, it is unclear whether the

15 condition requiring jurisdictions to provide ICE jail access for interview purposes prohibits grant

16 recipients from informing inmates of their right to have a lawyer present or decline an interview

17 with ICE, which would implicate the notice requirements in the TRUTH Act.

18

87. Both conditions also fail to provide clear notice of what affirmative actions are

19 required by grant recipients to comply with the conditions. For example, the represented final

20 Access and Notification Conditions require that a state “rule, -regulation, -policy, or –practice,

21 must be in place that is designed to ensure” either access for DHS agents or compliance with

22 DHS notification requests. The conditions provide no guidance or further information as to the

23 5 The represented final conditions state that “[n]othing in this condition shall be
24 understood to authorize or require any recipient, any subrecipient at any tier, any State or local government, or any other entity or individual to maintain (or detain) any individual in custody
25 beyond the date and time the individual would have been released in the absence of this condition.” Id. at ¶ 55(4)(B). The condition also states that it “imposes NO requirements as to …
26 DHS requests for detention.” Id. (emphasis added). If these clarifications do not appear in the actual final conditions that the State receives, the condition would otherwise be ambiguous and/or
27 unconstitutional for the independent reason that it would condition funding on LEAs, in at least some instances, violating the Fourth Amendment—because DHS notification and detainer
28 requests are not typically supported by probable cause.
23
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1 meaning of the ambiguous term “designed to ensure.” Among other issues, this term is unclear

2 whether the “policy” or “practice” must be directed specifically to the Access and Notification

3 Conditions, or may be encompassed in other regulations or practices dealing with the treatment of

4 detention facilities more generally.

5 V. OJP HAS EXCEEDED ITS STATUTORY AUTHORITY BY IMPOSING THE ACCESS AND NOTIFICATION CONDITIONS
6

7

88. JAG’s authorizing statute provides no authority for OJP to impose the Access and

8 Notification Conditions (the so-called “special conditions”) on all grant recipients. Indeed, the

9 same statute that authorizes JAG funding, the Omnibus Crime Control and Safe Streets Act of

10 1968, also authorizes funding pursuant to the Violence Against Women Act (“VAWA”) that

11 permits the Attorney General to “impose reasonable conditions on grant awards.” 34 U.S.C. §

12 10446(e)(3). Congress’s clear direction to USDOJ to add “reasonable conditions” pursuant to

13 VAWA, but not for JAG, indicates that Congress did not intend to confer discretion on OJP to

14 add unlimited substantive conditions at its whim.

15

89. Although nothing related to the Access and Notification Conditions is found within

16 the statutory text or legislative history related to JAG, OJP claims it has the authority to add these

17 conditions under Section 10102, which allows OJP to add “special conditions on all grants.” 34

18 U.S.C. § 10102(a)(6).

19

90. OJP’s basis for using its purported authority to add these conditions here, without

20 limitation, is statutorily and constitutionally flawed.

21

91. In 2006, when this provision was amended to permit OJP to “plac[e] special

22 conditions on all grants,” the term “special conditions” had a precise meaning. According to a

23 USDOJ regulation in place at the time, the agency could impose “special grant or subgrant

24 conditions” on “high-risk grantees” if the grant applicant: (a) had a history of poor performance;

25 (b) was not financially stable; (c) had a management system that did not meet certain federal

26 standards; (d) had not conformed to the terms and conditions of a previous grant award; or (e)

27 was not otherwise responsible. 28 C.F.R. § 66.12 (removed December 25, 2014). This language

28 was based on the grants management common rule adopted by the Office of Management and
24
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1 Budget (“OMB”), and followed by “all Federal agencies” when administering grants to state and

2 local governments. OMB Circular A-102 (as amended Aug. 29, 1997). Other federal statutes

3 and regulations have also historically identified “special conditions” as those that federal agencies

4 may place on particular high-risk grantees who have struggled or failed to comply with grant

5 conditions in the past, not on all grantees irrespective of performance.

6

92. Interpreting OJP’s authority to permit it to impose any substantive conditions with

7 respect to formula grants, like JAG, beyond what is allowed under federal law further conflicts

8 with Congressional intent in establishing a prescribed formula grant structure. Congress designed

9 JAG so that “each State” receives an allocation according to a precise statutory formula. 42

10 U.S.C. § 10156(a) (emphasis added). Likewise, Congress’s formula provides allocation to “each

11 unit of local government.” 34 U.S.C. § 10156(d)(2) (emphasis added). As such, if USDOJ

12 makes grants from funds that Congress appropriated to JAG, OJP must disburse the funds

13 according to the statutory formula enacted by Congress so long as the jurisdiction complies with

14 the conditions that exist in federal law.

15

93. The conditions also conflict with the immigration enforcement scheme set forth by

16 Congress in the INA that makes cooperation with immigration enforcement agencies voluntary.

17 There is no provision in the INA, or any federal law, that requires jurisdictions to assist with

18 otherwise voluntary immigration enforcement related activities in order to receive these federal

19 funds.

20

94. While USDOJ has the ability to add conditions to JAG awards, it cannot add

21 substantive grant conditions such as these, that are not tethered to any federal statute. For

22 instance, it could add “special conditions” for high-risk grantees as described above. It could add

23 conditions that stem from the authorizing JAG statute. And it could add conditions that Congress

24 directed be applied to federally funded programs. See, e.g., 42 U.S.C. § 2000d-1; 29 U.S.C. §

25 794(a)(1); 20 U.S.C. § 1681(a)(1); 42 U.S.C. § 6102.

26 VI. FOR FISCAL YEAR 2017, USDOJ IMPOSED A REQUIREMENT OF CERTIFYING COMPLIANCE WITH SECTION 1373 ON COPS GRANTS THAT THE STATE RECEIVES
27 A. California’s Prior Use of COPS Grant Funds
28
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1

95. COPS is a competitive grant administered by the Office of Community Oriented

2 Policing Services (“COPS Office”) within USDOJ. 28 C.F.R. §§ 0.119-0.121. COPS funding is

3 authorized by Congress under 34 U.S.C. § 10381 et seq.

4

96. Beginning in Fiscal Year 2014, Congress appropriated funds for “competitive grants

5 to State law enforcement agencies” for “investigative purposes to locate or investigate illicit

6 activities, including precursor diversion, laboratories, or methamphetamine traffickers,” and has

7 continued to set aside COPS grant funds for that purpose ever since. See, e.g., Consolidated

8 Appropriations Act, 2014, Pub. L. No. 113-76, div. B, tit. II, 128 Stat. 65 (2014). Beginning in

9 2015, Congress appropriated funds for “competitive grants to State law enforcement agencies” for

10 “investigative purposes to locate or investigate illicit activities, including activities related to the

11 distribution of heroin and prescription opioid traffickers,” and has done so ever since.

12 Consolidated Appropriations Act, 2015, Pub. L. No. 113-235, div. B, tit. II, 128 Stat. 2196

13 (2015).

14

97. Since the inception of the COPS program, CalDOJ has received over $11 million to

15 support law enforcement efforts around the State, including work on multi-jurisdictional task

16 forces. Every year since Congress appropriated funds for the COPS Anti-Methamphetamine

17 Program (“CAMP”) in 2014, CalDOJ has applied for and received funds to support Group 22, a

18 part of the Los Angeles Interagency Metropolitan Police Apprehension Crime Task Force (LA

19 IMPACT). Group 22 is responsible for targeted enforcement efforts of large-scale

20 methamphetamine drug trafficking organizations, including dismantling operations in California

21 or elsewhere in the country. A CalDOJ special agent is the Executive Director of LA IMPACT

22 and in 2016, CalDOJ used its $1,447,880 COPS grant to cover salaries, benefits, and other costs

23 in support of the State’s anti-methamphetamine efforts. CalDOJ’s 2017 CAMP application seeks

24 to continue and expand its support of Group 22.

25

98. Similarly, every year since Congress appropriated funds for the COPS Anti-Heroin

26 Task Force (“AHTF”) Program, CalDOJ has applied for and received funds to support efforts to

27 combat heroin in the State’s 14 multi-disciplinary and interdisciplinary task forces. These task

28 forces conduct large-scale heroin investigations, seize heroin, share data and intelligence among
26
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1 law enforcement personnel throughout the state, and conduct education sessions in the

2 community about drug abuse awareness. In 2016, California received $1,276,924 to cover

3 equipment, consultants, and other costs in support of the State’s anti-heroin efforts. CalDOJ’s

4 2017 ATHF application seeks to continue and expand its support of these task forces.

5

B. California Applied for Fiscal Year 2017 COPS Funding that was

Conditioned on Section 1373 6

99. On or about May 22, 2017, the COPS Office announced the Fiscal Year 2017 COPS

7

Solicitations. The COPS Office set July 10, 2017 as the deadline for applications.

8

100. In the COPS Solicitations, the COPS Office announced that applicant entities must

9

certify compliance with Section 1373 (“COPS Section 1373 Certifications”). See Ex. C at 2, 30,

10

and Appx. D; Ex. D at 2, 29, and Appx. D. Specifically, to be considered for COPS funding, the

11

chief legal office of the applicant entities had to certify that:

12

As of the date of this certification, no state or local government entity or official has in

13

effect (or purports to have in effect) any prohibition that is applicable to the program or

14

activity to be funded in whole or in part under the FY 2017 program and that deals with

15

sending to, requesting or receiving from, maintaining, or exchanging information of the

16

types described in 8 U.S.C. §1373(a) or (b).

17

101. CalDOJ’s Division of Law Enforcement (“DLE”) applied for AHTF and CAMP

18

COPS grants on July 7 and 10, respectively. As part of the applications, DLE included the COPS

19

Section 1373 Certifications.

20

102. As part of its applications, the DLE included a supplemental statement by CalDOJ in

21

connection with the COPS Section 1373 Certifications. In the supplemental statement, CalDOJ

22

clarified that the COPS Section 1373 Certifications were made “as that federal statute is lawfully

23

interpreted.” CalDOJ also expressly reserved its rights to challenge “any unconstitutional

24

enforcement of Section 1373.”

25

103. As of the date of this filing, DLE has not yet received any response to its applications.

26

USDOJ acknowledged that it would not meet its intended September 30 deadline for making

27

award announcements, but in a September 7, 2017 e-mail, USDOJ “committed to finishing

28

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1 application reviews and announcing this year’s award recipients as quickly as possible.”

2 VII. DEFENDANTS’ STATEMENTS REVEAL THAT THEY INTEND TO WRONGFULLY

WITHHOLD FUNDING FROM CALIFORNIA BASED ON A MISTAKEN BELIEF THAT THE

3

STATE DOES NOT COMPLY WITH SECTION 1373

4

104. Although California’s laws comply with the Section 1373 Conditions, Defendants

5 have consistently stated or suggested their perception that California and its local jurisdictions

6 potentially violate Section 1373, and will withhold and/or take JAG and COPS funding away

7 from the State on that basis.

8

105. Now that the State has enacted the Values Act, that fear is more immediate. In

9 response to a question from Bill O’ Reilly about what he would do if California enacted the

10 Values Act, President Trump said that he would use de-funding “as a weapon” against 11 California.6

12

A. An Office of Inspector General Report that Defendants Have Relied Upon

Indicates that they Mistakenly Believe California’s Laws Violate Section

13

1373

14

106. In May 2016, the USDOJ’s Office of Inspector General (“OIG”) completed a report

15 analyzing practices of ten state or local jurisdictions that limit compliance with requests from

16 immigration authorities (“OIG Report”). The OIG Report was in response to a request by

17 Congressman John Culberson to determine whether USDOJ grant recipients violate Section 1373.

18 The State of California was identified as one of the ten jurisdictions on the basis of the TRUST

19 Act, although its laws were not discussed in detail in the OIG Report.7

20

107. Although the OIG Report acknowledged that Section 1373 only governs immigration

21 and citizenship status information, it said “[a] reasonable reading of Section 1373, based on its ‘in

22 any way restrict’ language, would be that it applies not only to the situation where a local law or

23 policy specifically prohibits or restricts an employee from providing citizenship or immigration

24 status information, but also where the actions of local officials result in prohibitions or restrictions

25

6 Donald Trump Super Bowl interview transcript with Fox News’ Bill O’ Reilly, SBNation

(released Feb. 5, 2017), https://www.sbnation.com/2017/2/5/14516156/donald-trump-interview26 transcript-bill-oreilly-super-bowl-2017.

7 Memorandum from Michael E. Horowitz, Inspector Gen., U.S. Dep’t of Justice, to Karol 27 V. Mason, Assistant Attorney Gen., Office of Justice Program, U.S. Dep’t of Justice, Department

of Justice Referral of Allegations of Potential Violations of 8 U.S.C. § 1373 by Grant Recipients, 28 U.S. Department of Justice, Office of the Inspector General 13 (May 31, 2016).

28

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1 on employees providing such information to ICE.” OIG Rep. at 7 n.9. OIG remarked that laws

2 and policies that “apply to the handling of ICE detainer requests, may have a broader practical

3 impact on the level of cooperation afforded to ICE by these jurisdictions and may, therefore, be

4 inconsistent with at least the intent of Section 1373.” Id. at 7. OIG identified several

5 jurisdictions as possibly violating Section 1373 because they either prohibited the disclosure of

6 release dates or defined the parameters under which the jurisdictions may respond to such

7 requests. Id. at 7-8. Furthermore, it noted that one jurisdiction that both prohibited the initiation

8 of immigration status investigations and regulated law enforcement’s response to an ICE request

9 for an inmate’s release date, “raises a … concern as to the limits it places on the authority of [law

10 enforcement] officials to share information on that topic with ICE.” Id.

11

108. Defendants appear to rely on OIG’s findings. On March 27, 2017, in formal

12 “Remarks Announcing Sanctuary Jurisdictions” discussing Section 1373, Defendant Sessions

13 cited the OIG Report to support his statement that policies that limit compliance with detainer

14 requests “violate federal laws.” Defendant Sessions claimed that such policies limiting

15 compliance with detainer requests put jurisdictions “at risk of losing valuable federal dollars.”8

16

109. In Congressional testimony three months later, ICE Acting Director Thomas Homan

17 told Congress that he viewed violators of Section 1373 as those that “have some sort of policy

18 where they don’t honor detainers or allow [ICE] access to the jails.”9 Homan also said in that

19 testimony that Section 1373 not only covers “sharing the information, but allow[ing] us access to 20 the jails.” Id. at 45-46.10

21

8 Attorney General Jeff Sessions, Attorney General Jeff Sessions Delivers Remarks on

Sanctuary Jurisdictions, U.S. Dep’t of Justice (Mar. 27, 2017), 22 https://www.justice.gov/opa/speech/attorney-general-jeff-sessions-delivers-remarks-sanctuary-

jurisdictions.

23

9 ICE and CBP F.Y. 2018 Budget Request: Hearing Before the Subcomm. on Homeland

Security of the H. Appropriations Comm. Hr’g Tr., 115th Cong., Fed. News Serv. Transcripts, 24 2017 WLNR 18737622, 33-34 (June 13, 2017) (statement of ICE Acting Director Thomas

Homan).

25

10 Although, California’s laws do not prohibit ICE’s access to detention facilities, in a

letter to the Chief Justice of California sent on March 31, 2017, Defendant Sessions and then26 DHS Secretary John F. Kelly said that the “the State of California and many of its largest counties

and cities, have enacted statutes and ordinances designed to specifically prohibit or hinder ICE 27 from enforcing immigration law by … denying requests by ICE officers and agents to enter

prisons and jails to make arrests.” Attorney General Jefferson B. Sessions and Secretary John F. 28

29

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1

110. On April 21, 2017, Defendant Hanson sent letters to nine of the ten jurisdictions

2 identified in the OIG Report that received a JAG award in 2016, including the BSCC, demanding

3 that they submit an official legal opinion validating their compliance with Section 1373.11 In a

4 connected press release, Defendant USDOJ claimed that OIG had previously identified these

5 jurisdictions, including the State of California, “as having laws that potentially violate 8 U.S.C. §

6 1373.”12 In a speech that same day in San Diego, California, Defendant Sessions reiterated that

7 “the Department of Justice sent letters to jurisdictions that were identified (by the Obama

8 administration) as having policies that potentially violate federal law to receive millions in federal

9 grants.”13 Defendant Sessions identified the State of California as being one of those jurisdictions

10 potentially in violation of Section 1373.

11

B. Defendants’ Actions since California’s Submission of a Legal Opinion

Validating Compliance Support a Credible Fear that Defendants Will

12

Wrongfully Withhold Funding on the Basis of Section 1373

13

111. Given Defendants’ reliance on OIG’s erroneous interpretation of Section 1373,

14 California has a credible fear that Defendants will withhold JAG and COPS funding away from

15 the State.

16

112. On June 29, 2017, the BSCC, the State entity that directly receives the JAG award,

17 submitted its legal opinion explaining that the State’s laws, including the TRUST and TRUTH

18 Acts, do not violate Section 1373.

19

113. Subsequently, on July 6, 2017, Defendant Sessions suggested, without any support,

20 that the jurisdictions that submitted the Section 1373 legal opinions may not be in compliance

21 with Section 1373, saying, “It is not enough to assert compliance, the jurisdictions must actually

22

Kelly Letter to the Honorable Tani G. Cantil, N.Y. Times (Mar. 31, 2017), 23 https://www.nytimes.com/interactive/2017/03/31/us/sessions-kelly-letter.html.
11 Press Release, U.S. Dep’t of Justice, Department of Justice Sends Letter to Nine 24 Jurisdictions Requiring Proof of Compliance with 8 U.S.C. § 1373 (Apr. 21, 2017),

https://www.justice.gov/opa/pr/department-justice-sends-letter-nine-jurisdictions-requiring-proof-

25 compliance-8-usc-1373.

12 Id.

26

13 Attorney General Jeff Sessions, Attorney General Jeff Sessions Delivers Remarks

Before Media Availability in San Diego, California, U.S. Dep’t of Justice (Apr. 21, 2017), 27 https://www.justice.gov/opa/speech/attorney-general-jeff-sessions-delivers-remarks-media-

availability-san-diego-california. 28

30

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1 be in compliance.”14

2

114. On that same date, Defendant USDOJ asserted that it would make a determination

3 soon whether the jurisdictions that submitted the requested legal opinions comply with Section

4 1373.

5

115. In August 2017, Defendants informed at least two of those jurisdictions that they

6 comply with Section 1373.

7

116. On October 12, 2017, Defendants announced results of their preliminary compliance

8 assessments for the remaining jurisdictions except California. Defendants announced that they

9 had found no evidence that two of the jurisdictions are currently out of compliance with Section

10 1373. Defendants announced that they had preliminarily determined that five of the jurisdictions

11 do not appear to comply with Section 1373. Defendants determined that four of the five

12 jurisdictions appear to violate Section 1373 on its face because they regulate the sharing of

13 release dates. Defendants determined that one of the five jurisdictions appears to violate Section

14 1373 because it protects the disclosure of information regarding victims of crime. And

15 Defendants noted that all five of the jurisdictions that limit inquiries into one’s immigration status

16 may violate Section 1373, depending on how their laws or policies are applied.15

17

117. As a result of the above, California must assume, based on Defendants USDOJ and

18 Sessions’ rhetoric and Defendants’ determinations as to other jurisdictions, that California is in

19 danger of being found not to be in compliance with Section 1373.

20 VIII. THE IMPOSITION OF THE ILLEGAL FUNDING CONDITIONS WILL CREATE IRREPARABLE HARM TO THE STATE AND ITS LOCAL JURISDICTIONS
21

22

118. Defendants’ actions create the prospect that the State and/or its local jurisdictions will

23 have to decide whether they may have to forego acceptance of their JAG awards, unless there is

24

14 Press Release, U.S. Dep’t of Justice, Department of Justice Reviewing Letters from Ten 25 Potential Sanctuary Jurisdictions (July 6, 2017), https://www.justice.gov/opa/pr/department-

justice-reviewing-letters-ten-potential-sanctuary-jurisdictions.

26

15 Press Release, U.S. Dep’t of Justice, Justice Department Provides Last Chance for

Cities to Show Section 1373 Compliance (Oct. 12, 2017), https://www.justice.gov/opa/pr/justice27 department-provides-last-chance-cities-show-1373-compliance (Section 1373 Compliance

Determination Letters sent to Chicago, Cook County, New Orleans, New York, and 28 Philadelphia).

31

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1 clarification about the scope of the new conditions and Defendants’ interpretation of Section

2 1373. That means a loss of critical law enforcement funds of up to $28.3 million for JAG and

3 $2.8 million for COPS, in the event those monies are withheld by Defendants, that would

4 otherwise go toward programs throughout the State that reduce recidivism for at-risk youth,

5 counter the distribution of illegal drugs, advance community policing, and improve educational

6 outcomes.

7

119. Another prospect is that the State and/or its localities accept the funding and change

8 their public-safety oriented laws and policies in order to ensure they are viewed as complying

9 with these ambiguous JAG Access and Notification Conditions, and with Section 1373 based on

10 the Defendants’ actions seeking to interpret and enforce Section 1373 in an erroneous and

11 unconstitutional manner. Abandoning these policies, that law enforcement has found to be

12 effective in their communities, would divert resources away from fighting crime and erode trust

13 between the State and local governments and their immigrant communities that the TRUST and

14 TRUTH Acts, the Values Act, and the Shield Confidentiality Statutes, as well as local ordinances,

15 are intended to build.

16

120. In order to compel jurisdictions to adopt its federal immigration enforcement

17 program, the Administration has admitted that it intends to force state and local jurisdictions to

18 abandon policies these jurisdictions have adopted based on their considered judgment on how

19 best to enhance public safety. The ambiguity of these conditions is part and parcel of the

20 Administration’s plan to create a chilling effect that makes state and local jurisdictions think

21 twice about maintaining their current policies. If Defendants clarify the JAG Access Condition to

22 explain that they expect jurisdictions to not provide any procedural protections to detainees before

23 an ICE interview, jurisdictions will still feel pressured to change their laws or policies to avoid

24 losing any federal funding. Defendants’ (perhaps intentional) silence on how they interpret the

25 State’s compliance with Section 1373 only adds to this pressure.

26

121. By their actions, Defendants are compelling state and local governments to make a

27 decision about whether to modify or abandon public safety policies or forego federal funding

28 without providing clarity about the scope of the conditions, or even Defendant’s interpretation of
32
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1 Section 1373 as applied to the State. This forces jurisdictions to sign an unqualified certification

2 under penalty of perjury within 45 days of receiving the final JAG award conditions in the face of

3 the doubt that Defendants have created through their specious interpretations of Section 1373 and

4 their failure to timely respond to the BSCC’s legal opinion. And this makes it unlikely that the

5 State will receive the COPS awards that will be granted soon. Defendants’ scheme undermines

6 public safety, is unconstitutional, and should be halted.

7

FIRST CLAIM FOR RELIEF

8

VIOLATION OF CONSTITUTIONAL SEPARATION OF POWERS

9

(JAG Access and Notification Conditions)

10

122. Plaintiff incorporates the allegations of the preceding paragraphs by reference.

11

123. Article I, Section I of the United States Constitution enumerates that “[a]ll legislative

12 Powers herein granted shall be vested in [the] Congress.”

13

124. Article I, Section VIII of the United States Constitution vests exclusively in Congress

14 the spending power to “provide for . . . the General Welfare of the United States.”

15

125. Defendants have exceeded Congressional authority by adding conditions requiring

16 jurisdictions to provide access to detention facilities to interview inmates and to comply with

17 notification requests that are not conferred by the JAG authorizing statute or any other federal

18 law. See 34 U.S.C. §§ 10151-58 et seq. The new Access and Notification Conditions therefore

19 unlawfully exceed the Executive Branch’s powers and intrude upon the powers of Congress.

20

126. For the reasons stated herein, the Access and Notification Conditions in the JAG

21 Solicitations are unlawful, unconstitutional, and should be set aside under 28 U.S.C. § 2201.

22

SECOND CLAIM FOR RELIEF

23

VIOLATION OF CONGRESSIONAL SPENDING AUTHORITY

24

(JAG Section 1373, Access, and Notification Conditions)

25

127. Plaintiff incorporates the allegations of the preceding paragraphs by reference.

26

128. Congress’ spending power is not unlimited. When “Congress desires to condition the

27 States’ receipt of federal funds, it ‘must do so (a) unambiguously …, enabl[ing] the States to

28 exercise their choice knowingly, cognizant of the consequences of their participation;’” and (b)
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1 by placing conditions that are related “to the federal interest in particular national projects or

2 programs.” South Dakota v. Dole, 483 U.S. 203, 207 (1987).

3

129. To the extent that Congress delegated its authority to impose conditions (special

4 conditions or otherwise) on JAG funding (which Plaintiff does not concede), the Section 1373,

5 Access, and Notification Conditions violate the Spending Clause of the U.S. Constitution.

6

130. The Section 1373, Access, and Notification Conditions are unrelated to the “federal

7 interest in particular national projects or programs” for which Congress intended JAG funding to

8 be used.

9

131. The Access and Notification Conditions violate the Spending Clause because they

10 are ambiguous and do not provide the State with notice to make a “choice knowingly” of whether

11 to comply.

12

132. For the reasons stated herein, the Section 1373, Access, and Notification Conditions

13 in the JAG Solicitations are unlawful, unconstitutional, and should be set aside under 28 U.S.C. §

14 2201.

15

THIRD CLAIM FOR RELIEF

16

VIOLATION OF ADMINISTRATIVE PROCEDURE ACT

17 (Constitutional Violations and Excess of Statutory Authority as to the JAG Section 1373,

18

Access, and Notification Conditions)

19

133. Plaintiff incorporates the allegations of the preceding paragraphs by reference.

20

134. Defendant USDOJ is an “agency” under the APA, 5 U.S.C. § 551(1), and the JAG

21 Solicitations are “agency action[s]” under the APA, id. § 551(13).

22

135. The JAG Solicitations constitute “[a]gency action[s] made reviewable by statute and

23 final agency action for which there is no other adequate remedy in a court.” Id. § 704.

24

136. The APA requires that a court “hold unlawful and set aside agency action, findings,

25 and conclusions found to be … contrary to constitutional right, power, privilege, or immunity,” or

26 “in excess of statutory jurisdiction, authority, or limitations, or short of statutory right.” Id. §

27 706(2)(B)-(C).

28

137. Defendants’ imposition of the Access and Notification Conditions in the JAG

34

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Case 3:17-cv-04701-WHO Document 11 Filed 10/13/17 Page 36 of 310

1 Solicitations is unconstitutional because Defendants overstepped their powers by exercising

2 lawmaking authority that is solely reserved to Congress under Article I, Section I of the U.S.

3 Constitution. Also, Defendants’ imposition of the Access and Notification Conditions in the JAG

4 Solicitations was in excess of their statutory authority. Furthermore, the Section 1373, Access,

5 and Notification Conditions violate the Spending Clause because they are unrelated to the federal

6 purpose of the grant and/or are ambiguous.

7

138. Because Defendants acted unconstitutionally and in excess of their statutory authority

8 through the JAG Solicitations, these actions are unlawful and should be set aside under 5 U.S.C. §

9 706.

10

FOURTH CLAIM FOR RELIEF

11

VIOLATION OF THE ADMINISTRATIVE PROCEDURE ACT

12 (Arbitrary and Capricious as to the JAG Section 1373, Access, and Notification Conditions)

13

139. Plaintiff incorporates the allegations of the preceding paragraphs by reference.

14

140. Defendant USDOJ is an “agency” under the APA, 5 U.S.C. § 551(1), and the JAG

15 Solicitations are “agency action[s]” under the APA, id. § 551(13).

16

141. The JAG Solicitations constitute “[a]gency action[s] made reviewable by statute and

17 final agency action for which there is no other adequate remedy in a court.” Id. § 704.

18

142. The APA requires that a court “hold unlawful and set aside agency action, findings,

19 and conclusions found to be … arbitrary, capricious, an abuse of discretion, or otherwise not in

20 accordance with law.” Id. § 706(2)(A).

21

143. The imposition of the Section 1373, Access, and Notification Conditions is arbitrary

22 and capricious and an abuse of discretion because Defendants have relied on factors that

23 Congress did not intend by adding these conditions to JAG funding.

24

144. For the reasons discussed herein, the Section 1373, Access and Notification

25 Conditions in the JAG Solicitations are unlawful and should be set aside under 5 U.S.C. § 706 for

26 being arbitrary and capricious and an abuse of discretion.

27

FIFTH CAUSE OF ACTION

28

DECLARATORY RELIEF

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1

(JAG and COPS Section 1373 Conditions)

2

145. Plaintiff incorporates the allegations of the preceding paragraphs by reference.

3

146. An actual controversy exists as to whether the State of California and its localities

4 comply with the Section 1373 Conditions in the JAG and COPS Solicitations on the basis of the

5 TRUST, TRUTH, and Values Acts and California’s Shield Confidentiality Statutes. Although

6 California law complies with Section 1373, Defendants’ statements indicate that they will

7 determine that California does not comply with Section 1373, and thus, the conditions.

8

147. Section 1373 only governs restrictions on the sharing and receiving of immigration

9 and citizenship status information, and requesting from federal immigration enforcement agents,

10 and maintaining of, immigration status information. Section 1373 does not prohibit restrictions

11 on asking an individual about his or her immigration status, detainer requests, notification

12 requests, ICE’s access to jails, or requests for other personal information. See Steinle v. City and

13 County of San Francisco, 230 F. Supp.3d 994, 1015-16 (N.D. Cal. 2017). Therefore, the TRUST,

14 TRUTH, and Values Acts comply with Section 1373

15

148. Section 1373 must be read in the context of the entire INA and in light of limitations

16 set forth in the U.S. Constitution. The Supreme Court has often “read significant limitations

17 into . . . immigration statutes in order to avoid their constitutional invalidation.” Zadvydas v.

18 Davis, 533 U.S. 678, 689 (2001).

19

149. The Tenth Amendment further prohibits the federal government from requiring states

20 and localities “to govern according to Congress’s instructions” or “command[ing] state

21 officers … to administer or enforce a federal regulatory program.” Printz v. United States, 521

22 U.S. 898, 935 (1997); see also New York v. United States, 505 U.S. 144, 161 (1992).

23 Specifically, where the “whole object” of a provision of a federal statute is to “direct the

24 functioning” of state and local governments, that provision is unconstitutional. Printz, 521 U.S.

25 at 932.

26

150. If Section 1373 is read to extend to the TRUST, TRUTH, and Values Act and/or

27 California’s Shield Confidentiality Statutes, that would undermine the State’s ability to ensure

28 law and order, and execute over sovereign state and local government functions. As a result, the
36
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Case 3:17-cv-04701-WHO Document 11 Filed 10/13/17 Page 38 of 310

1 federal government would be commandeering the State and its political subdivisions by directing

2 their personnel how to act and handle data under State and local control in order to advance a

3 federal program. Such an interference would be a violation of the Tenth Amendment. See Printz,

4 521 U.S. at 932 & n.17, 935.

5

151. Thus, any non-disclosure about immigration status information that the State’s Shield

6 Confidentiality Statutes direct is consistent with Section 1373 when read in light of the U.S.

7 Constitution.

8

152. Pursuant to 28 U.S.C. § 2201, Plaintiff is entitled to a declaration that the TRUST,

9 TRUTH, and Values Acts and the State’s Shield Confidentiality Statutes comply with Section

10 1373 as properly interpreted and construed, and thus, should not be a basis for withholding and

11 terminating federal funding, or disbarring and making ineligible the State and its political

12 subdivisions.

13

153. Alternatively, Plaintiff is entitled to a declaration that Section 1373 cannot be

14 constitutionally enforced against the TRUST, TRUTH, and Values Act and the State’s Shield

15 Confidentiality Statutes under the Tenth Amendment of the U.S. Constitution, and thus, should

16 not be a basis for withholding and terminating federal funding, or disbarring and making

17 ineligible the State and its political subdivisions.

18

PRAYER FOR RELIEF

19

WHEREFORE, Plaintiff, including the State of California, respectfully requests that this

20 Court enter judgment in its favor, and grant the following relief:

21

1. Issue a declaration that the Section 1373, Access, and Notification Conditions in the

22 JAG Solicitations are unconstitutional and/or unlawful because (a) they exceed the Congressional

23 authority conferred to the Executive Branch; (b) to the extent there is Congressional

24 authorization, they exceed the Congress’s spending powers under Article I of the Constitution;

25 and/or (c) they violate the Administrative Procedure Act;

26

2. Permanently enjoin Defendants from using the Section 1373, Access, and

27 Notification Conditions as restrictions for JAG funding;

28
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Case 3:17-cv-04701-WHO Document 11 Filed 10/13/17 Page 39 of 310

1

3. Permanently enjoin Defendants from withholding and terminating, or disbarring and

2 making ineligible the State and its political subdivisions for JAG and COPS funding on account

3 of the TRUST, TRUTH, and Values Acts;

4

4. Permanently enjoin Defendants from withholding, terminating, disbarring, or making

5 any state entity or local jurisdiction ineligible for JAG and COPS funding on account of the

6 State’s Shield Confidentiality Statutes;

7

5. Issue a declaration that the TRUST, TRUTH, and Values Acts comply with Section

8 1373;

9

6. Issue a declaration that California’s Shield Confidentiality Statutes comply with

10 Section 1373;

11

7. In the alternative, issue a declaration that Section 1373 cannot be lawfully enforced as

12 to the TRUST, TRUTH, and Values Acts;

13

8. In the alternative; issue a declaration that Section 1373 cannot be lawfully enforced as

14 to California’s Shield Confidentiality Statutes; and

15

9 Award the State costs and grant such other relief as the Court may deem just and

16 proper.

17 Dated: October 13, 2017
18 19 20 21 22 23 24 25 26

Respectfully submitted,
XAVIER BECERRA Attorney General of California ANGELA SIERRA Senior Assistant Attorney General SATOSHI YANAI Supervising Deputy Attorney General SARAH BELTON Deputy Attorney General
/s/Lee Sherman /s/Lisa C. Ehrlich LEE SHERMAN LISA EHRLICH Deputy Attorneys General Attorneys for the State of California

27

28
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Case 3:17-cv-04701-WHO Document 11 Filed 10/13/17 Page 40 of 310 EXHIBIT A-STATE JAG SOLICITATION

Case 3:17-cv-04701-WHO Document 11 Filed 10/13/17 Page 41 of 310

U,S. Department of Justice Office of Justice Programs Bureau of Justice Assistance

0MB No, 1121-0329 Approval Expires 12/31/2018

The U.S. Department of Jlistice (DOJ), Office of Justice Programs (OJP), Bureau of Justice Assistance (BJA) is seeking applications for the Edward Byrne Memorial Justice Assistance Grant (JAG) Program. This program furthers the Department's mission by assisting State, local, and tribal efforts to prevent or reduce crime and violence.
Edward Byrne Memorial Justice Assistance Grant Program
FY 2017 State Solicitation
Applications Due: August 25, 2017
Eligibility
Only States may apply under this solicitation, By law, for purposes of the JAG program, the term "States" includes the District of Columbia, the Commonwealth of Puerto Rico, the No1thern Mariana Islands, the U.S, Virgin Islands, Guam, and American Samoa, (Throughout this solicitation, each reference to a State or States includes all of these 56 jurisdictions.)
A JAG application is not complete, and a State may not receive award funds, unless the chief executive of the applicant State (e,g,, the governor) properly executes, and the State submits, the "Certifications and Assurances by Chief Executive of Applicant Government" attached to this solic:itation as Appendix L
In addition, as discussed further below, in order validly to accept an FY 2017 JAG award, the
chief legal officer of the applicant State must properly execute, and the State must submit, the
specific certification regarding compliance with 8 U.S.C, § 1373 attached to this solicitation as Appendix IL (The text of 8 U,S,C, § 1373 appears in Appendix Ill,)
The expected allocations by State for the FY 2017 JAG program can be found at:
https://www.bia.gov/Fundinq/17 JA£,SlateAllocations.pdf
Deadline
Applicants must register in the OJP Grants Management System (GMS). prior to submitting an application under this solicitation. All applicants must register, even those. that previously registered in GMS, Select the "Apply Online" button associated with the solicitation title. All registrations and applications are due by 5 p,m, eastern time on August 25, 2017,
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Case 3:17-cv-04701-WHO Document 11 Filed 10/13/17 Page 42 of 310
This deadline does not apply to the certification regarding compliance with 8 U.S.C. § 1373. As explained below, a State may not validly accept an award, however, unless that certification is submitted to OJP on or before the day the State submits the signed award acceptance documents. For additional information, see How to Apply in Section D. Application and Submission Information.
Contact Information
For technical assistance with submitting an application, contact the Grants Management System Support Hotline at 888-549-990·1, option 3, or via email at GMS.HelpDesk@usdoj.gov. The GMS Support Hotline operates 24 hours a day, 7 days a week, including on federal holidays.· An applicant that experiences unforeseen GMS technical issues beyond its control that prevent it from submitting its application by the deadline must email the National Criminal Justice Reference Service (NCJRS) Response Center at grants@ncjrs.gov within 24 hours after the application deadline in order to request approval to submit its application, Additional information on reporting technical issues appears under "Experiencing Unforeseen GMS Technical Issues" in the How to Apply in Section D Application and Submission Information, For assistance with any other requirement of this solicitation, applicants may contact the NCJRS Response Center by telephone at 1-800-851-3420; via TTY at 301-240-6310 (hearing impaired only); by email at grants@ncjrs.gov; by fax to 301-240-5830, or by web chat at https://webcontact.ncjrs.gov/ncichat/chat.jsp. The NCJRS Response Center hours of operation are 10:00 a.m. to 6:00 p.m. eastern time, Monday through Friday, and 10:00 a.m. to 8:00 p.m, eastern time on the solicitation close date. Applicants also may contact the appropriate BJA State Policy Advisor.
Grants.gov number assigned to this solicitation: BJA-2017-11360 Release date: July 25, 2017
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Contents
A. Program Description ...................... '.············································································ 5 Overview ......................................................................................................................5 Program-Specific Information .......................................................................................5 Permissible uses of JAG Funds - In general ............................................................5 Limitations on the use of JAG funds .........................................................................6 State obligations regarding use of JAG funds and units of local government.. ......... 8 Required compliance with applicable federal laws.....................................................9 Potential funding reductions for noncompliance with PREA and SORNA................. 9 BJA Areas of Emphasis ..........................................................................................10 Goals, Objectives, and Deliverables .......................................................................... 11 Evidence-Based Programs or Practices ..................................................................... 12
B. Federal Award Information ....................................................................................... 12 Type of Award ...........................................................................................................13 Financial Management and System of Internal Controls ............................................ 14 Budget and Financial lnformation ...............................................................................14 Cost Sharing or Match Requirement ..........................................................................15 Pre-Agreement Costs (also known as Pre-award Costs) ...........................................15 Prior Approval, Planning, and Reporting of Conference/Meeting/Training Costs ....... 15 Costs Associated with Language Assistance (if applicable) ....................................... 15
C. Eligibility Information ................................................................................................ 16 D. Application and Submission Information .................................................................. 16
What an Application Should lnclude...........................................................................16 How to Apply ..............................................................................................................28 E. Application Review Information ................................................................................ 30 Review Process .........................................................................................................30 F. Federal Award Administration Information ................................................................ 31 Federal Award Notices ...............................................................................................31 Statutory and Regulatory Requirements; Award Conditions ......................................31 General Information about Post-Federal Award Reporting Requirements ................. 32 G. Federal Awarding Agency Contact(s) ...................................................................... 33 H. Other Information ..................................................................................................... 33 Freedom of Information Act and Privacy Act (5 U.S.C. § 552 and 5 U.S.C. § 552a) .. 33 Provide Feedback to OJP ..........................................................................................34 Application Checklist. .................................................................................................... 35
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Case 3:17-cv-04701-WHO Document 11 Filed 10/13/17 Page 45 of 310
Edward Byrne Memorial Justice Assistance Grant Program
FY 2017 State Solicitation CFDA #16.738
A. Program Description
OveU"View
The Edward Byrne Memorial Justice Assistance Grant (JAG) Program is the primary provider of federal criminal justice funding to States and units of local government. BJA will award JAG program funds to eligible States under this FY 2017 JAG Program State Solicitation. (A separate solicitation will be issued for applications lo BJA directly from units of local government.)
Statutory Authority: The JAG program statute is Subpart I of Part E of Title I of the Omnibus Crime Control and Safe Streets Act of 1968. Title I of the "Omnibus Act" generally is codified at Chapter 26 of Title 42 of the United States Code; the JAG program statute is codified at 42 U.S.C. §§ 3750-3758. See also 28 U.S.C. § 530C(a).
Program-Specific Information
Permissible uses of JAG Funds - In general
In general, JAG funds awarded to a State under this FY 2017 solicitation may be used to provide additional personnel, equipment, supplies, contractual support, training, technical assistance, and information systems for criminal justice, including for any one or more of the following-
• Law enforcement programs. • Prosecution and court programs. • Prevention and education programs. • Corrections and community corrections programs. • Drug treatment and enforcement programs. • Planning, evaluation, and technology improvement programs. • Crime victim and witness programs (other than compensation). • Mental health programs and related law enforcement and corrections programs,
including behavioral programs and crisis intervention teams.
Under the JAG program, States may use award funds for broadband deployment and adoption activities as they relate to criminal justice activities.
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Case 3:17-cv-04701-WHO Document 11 Filed 10/13/17 Page 46 of 310

Um!tations on the use of JAG funds

Prohibited and controlled uses of funds. JAG funds may not be used (whether directly or indirectly) for any purpose prohibited by federal statute or regulation, including those purposes specifically prohibited by the JAG program statute as set out at 42 U.S.C. § 3751 (d):

(1) Any security enhancements or any equipment to any nongovernmental entity that is not engaged in criminal justice or public safety.

(2) Unless the Attorney General certifies that extraordinary and exigent

circumstances exist that make the use of such funds to provide such matters

essential to the maintenance of public safety and good order-

·

(A) vehicles (excluding police cruisers), vessels (excluding police boats), or aircraft (excluding police helicopters);
(B) luxury items; {C) real estate; (D) construction projects (other than penal or correctional institutions); or (E) any similar matters.

For additional information on expenditures prohibited under JAG, as well as expenditures that are permitted but "controlled," along with the process for requesting approval regarding· controlled items, refer to the JAG Prohibited and Controlled Expenditures Guidance. Information also appears in the JAG FAQs..
Cap on use of JAG award funds for administrative costs - A State may use up to 1Opercent of a JAG award, including up to 1Opercent of any earned interest, for costs associated with administering the award.
Prohibition of supplanting; no use of JAG funds as "match" - JAG funds may not be used to supplant State or local funds, but must be used to increase the amounts of such funds that would, in the absence of Federal funds, be made available for law enforcement activities. See the JAG FAQs on BJA's JAG web page for examples of supplanting.
Although supplanting is prohibited, as discussed under "What An Application Should Include," the leveraging offederal funding is encouraged.
Absent specific federal statutory authority to do so, JAG award funds may not be used as "match" for the purposes of other federal awards.
Other restrictions on use of funds. If a State chooses to use its FY 2017 JAG funds for particular, defined types of expenditures, it must satisfy certain preconditions.
• Body-Worn Cameras (BWC)
A State that proposes to use FY 2017 JAG award funds to purchase BWC equipment, or to implement or enhance BWC programs, must provide to OJP a certification(s) that the State (or, if applicable, that any unit of local government that will receive funds from the State for BWC purposes) has policies and procedures in place related to BWC equipment usage, data storage and access, privacy considerations, training, etc. The certification can be found at https://www.bia.gov/Funding/BodyWornCameraCert.pdf.

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Case 3:17-cv-04701-WHO Document 11 Filed 10/13/17 Page 47 of 310

A State that proposes to use JAG funds for BWC-related expenses {including through a

unit of local government receiving funds from the State) will have funds withheld until the

required certification is submitted and approved by OJP.

·

The BJA BWC Toolkit provides model BWC policies and best practices to assist departments in implementing EiWC programs.

Apart from the JAG program, BJA provides funds under the Body-Worn Camera Policy and Implementation Program (BWC Program). The BWC Program allows jurisdictions to develop and implement policies and practices required for effective program adoption, and address program factors including the purchase, deployment, and maintenance of camera systems and equipment; data storage and access; and privacy considerations. Interested States may wish to refer to the BWC web page for more information. States should note, however, that JAG funds may not be used as any part of the 50 percent match required by the BWC Program.

• Body Armor

Ballistic-resistant and stab-resistant body armor can be funded through the JAG Program, as well as through BJA's Bulletproof Vest Pa1inership (BVP) Program. The BVP Program is designed to provide a critical resource to Slate and local law enforcement through the purchase of ballistic-resistant and stab-resistant body armor. For more information on the BVP Program, inc.luding eligibility and application, refer to the BVP web page. States should note, however, that JAG funds may not be used as any part of the 50 percent match required by the BVP Program.

Body armor purchased with JAG funds may be purchased at any threat level, make, or model from any distributor or manufacturer, as long as the body armor has been tested and found to comply with the latest applicable National Institute of Justice (NIJ) ballistic or stab standards. In addition, body armor purchased must be made in the United States.

As is the case in the BVP Program, States that propose to purchase body armor with JAG funds must certify that law enforcement agencies receiving body armor have a written "mandatory wear" policy in effect. FAQs related to the mandatory wear policy and
certifications can be found at http8://www.bia.gov/Funding/JAGFAQ.pdf. This policy
must be in place for at least all uniformed officers before any FY 2017 funding can be
used by the State for body armor. There are no requirements regarding the nature of the policy other than it being a mandatory wear policy for all uniformed officers while on duty. 1he certification must be signed by the Authorized Representative and must be attached to the application, if proposed as part of the application. If the State proposes to change project activities to utilize JAG funds to purchase body armor after the award is accepted, the State must submit the signed certification to BJA at that time. A mandatory wear concept and issues paper and a model policy are available by
contacting the BVP Customer Support Center at vests@usdoj.gov or toll free at 1-877758-3787. The certification form related to mandatory wear can be found at:
www. bia.qov/Funding/BodyArmorMandatoryWearCert. R!if.

• DNA Testing of Evidentiary Materials and Upload of DNA Profiles to a Database

If JAG program funds will be used for DNA testing of evidentiary materials, any resulting eligible DNA profiles must be uploaded to the Combined DNA Index System (CODIS,
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Case 3:17-cv-04701-WHO Document 11 Filed 10/13/17 Page 48 of 310
the national DNA database operated by the FBI) by a government DNA lab with access to CODIS. No profiles generated with JAG funding may be entered into any other nongovernmental DNA database without prior express written approval from BJA.
In addition, funds may not be used for purchase of DNA equipment and supplies when the resulting DNA profiles from such technology are not accepted for entry into CODIS.
• Interoperable Communication
States (including subrecipients) that use FY 2017 JAG funds to support emergency communications activities (including the purchase of interoperable communications equipment and technologies such as voice-over-internet protocol bridging or gateway devices, or equipment to support the build out of wireless broadband networks in the 700 MHz public safety band under the federal Communications Commission [FCC] Waiver Order) should review FY 2017 SAFECOM Guidance. The SAFECOM Guidance is updated annually to provide current information on emergency communications policies, eligible costs, best practices, and technical standards for State, local, tribal, and territorial grantees investing federal funds in emergency communications projects. Additionally, emergency communications projects should support the Statewide Communication Interoperability Plan (SCIP) and be coordinated with the full-time Statewide Interoperability Coordinator (SWIC) in the State of the project. As the central coordination point for their State's interoperability effort, the SWIC plays a critical role, and can serve as a valuable resource. SWICs are responsible for the implementation of the SClP through coordination and collaboration with the emergency response community. The U.S. Department of Homeland Security Office of Emergency Communications maintains a list of SWICs for each of the States and territories. Contact OEC@hq.dhs.gov. All communications equipment purchased with FY 2017 JAG program funding should be identified during quarterly performance metrics reporting.
In order to promote information sharing and enable interoperability among disparate systems across the justice and public safety community, OJP requires the recipient to comply with DOJ's Global Justice Information Sharing Initiative guidelines and recommendations for this particular grant. Recipients must conform to the Global Standards Package (GSP) and all constituent elements, where applicable, as described
. at: https://www.it.ojp.gov/gsp grantcondition. Recipients must document planned
approaches to information sharing and describe compliance to the GSP and appropriate privacy policy that protects shared information, or provide detailed justification for why an alternative approach is recommended.
State obligations regarding use of JAG funds and units of local government
A State that applies for and receives an FY 2017 JAG award m1Jst-
• Pass-through a predetermined percentage of funds to "units of local government" (For purposes of the JAG program, a "unit of local government" includes a city, county, township, town, and certain federally-recognized Indian tribes.) This predetermined percentage (often referred to as the "variable pass-through" or VPT) is calculated by OJ P's Bureau of Justice Statistics (BJS ), based on the total criminal justice expenditures by the State and its units of local government. The variable pass-through percentages that will apply to an FY 2017 award lo a recipient State can be found at: https://www.bia.gov/iag/pdfsNPT-for-SAAs-updated-June-2017.pdf. (If a State believes
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the VPT percentage has been calculated incorrectly, the State may provide pertinent, verifiable data to BJA and ask OJP to reconsider.)
In certain circumstances, some or all of a project administered by a recipient State may count as part of the variable pass-through. In general, a State may do so to the extent that- (1) the State-administered project will directly benefit a unit of local government, and (2) one unit (or more) of local government voluntarily agrees and acknowledges in an appropriate written certification that the specified amount of State-administered funds would directly benefit the unit of local government in question and agrees that funding the project at the State level is in Ille best interests of the unit of local government. See the JAG FAQs for an example.
• Appropriately use or distribute the amount of funds that are added to the State's FY 2017 award because certain units of local government within the State are ineHgible for a direct FY 2017 award of JAG funds because of their small size. {These small-size units of local government sometimes are referred to as "less-than-$·10,000 jurisdictions.") The State must provide ihese additional funds included in its FY 2017 award lo State police departments that provide criminal justice services to the "lessthan-$10,000 jurisdicti6ns" within the State and/or subaward the funds to such jurisdictions.
• Ensure that any court disposition or other records generated by JAG-funded programs are made available to State repositories if they are relevant to the National Instant Background Check System (NICS) determinations.
Required compliance with applicable federal laws
By law, the chief executive (e.g., the governor) of each State that applies for an FY 2017 JAG award must ce1iify that the State will "comply with all provisions of [the JAG program statute] and all other applicable Federal laws." To satisfy this requirement, each State applicant must submit two properly-executed certifications, using the forms shown at Appendix I and II.
All applicants should understand that OJP awards, including certifications provided in connection with such awards, are subject to review by DOJ, including by O,IP and by the DOJ Office of the Inspector General. Applicants also should understand that a materially false, fictitious, or fraudulent statement (or concealment or omission of a material fact) in a . certification submitted to OJP in support of an application may be the subject of criminal prosecution, and also may result in civil penalties and administrative remedies for false claims or otherwise. Administrative remedies that may be available to OJP with respect to an FY 2017 award include suspension or termination of the award, placement on the DOJ high-risk grantee list, disallowance of costs, and suspension or debarment of the recipient.
Potential funding reductions for noncompliance with PREA and SORNA
Prison Rape Elimination Act of 2003 (PREA). In 2012, DOJ published National PREA Standards, which were promulgated to prevent, detect, and respond to sexual victimization and abuse in confinement settings. The PREA Standards are set out at 28 C.F.R. Part 115, and apply to confinement facilities including adult prisons and jails, juvenile facilities, police lockups, and community corrections facilities.
Under PREA, if a State's chief executive (e.g., governor) does not certify full compliance with the National PREA Standards, the State is subject to the loss of 5 percent of certain DOJ grant
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funds, including JAG award funds, unless: (1) the chief executive submits an assurance to DOJ that no less than 5 percent of such funds will be used solely for the purpose of enabling the
State to achieve and certify full compliance with the Standards in future years: or (2) the chief
executive requests that the affected funds be held in abeyance by DOJ. See 42 U.S.C. § 15607(e)(2).
A reduction of a JAG award to a State under the provisions of PREA will not affect the portion
of the JAG award that is reserved for local jurisdictions.
For additional information concerning PREA implementation, send inquiries to the PREA Management Office at PREACompliance@usdoj.gov and/or review the PREA FAQs.
Sex Offender Registration and Notification Act (SORNA). SORNA, which is Title I of the Adam Walsh Child Protection and Safety Act of 2006, mandates a 10-percent reduction in JAG award to a "State" that has failed to substantially implement SORNA. For such States, the 10-percent reduction has been applied to JAG awards since FY 2012 and will continue to be applied in each subsequent year until the JAG recipient has substantially implemented SORNA. Further, States that have substantially implemented SORNA have an ongoing obligation to maintain that status each year. A JAG reduction will be applied each year a jurisdiction has failed to have substantially implemented SORNA.
A reduction of a JAG award to a State under the provisions of SORNA will not affect the portion of the JAG award that is reserved for local jurisdictions.
For additional information regarding SOl'{NA implementation, including requirements and a list of States that will be affected in FY 2017 by the 10-percent reduction to JAG awards, contact Samantha Opong with the OJP Office of Sex Offender Sentencing, Monitoring, Apprehending, Registering, and Tracking (SMART Office) at Samantha,Opong@usdoj.gov or 202-514-9320. Additional SORNA guidance can be found within the SORNA FAQs.
BJA Areas of Emphasis
BJA recognizes that there are significant pressures on State and local criminal justice systems. In these challenging times, shared priorities and leveraged resources can make a significant impact. BJA intends to focus much of its work as a component of OJP on the areas of emphasis described below, and encourages each State recipient of an FY 2017 JAG award to join us in addressing these challenges.
Reducing Gun Violence - Gun violence has touched nearly every State and local government in America. While our nation has made great strides in reducing violent crime, some municipalities and regions continue to experience unacceptable levels of violent crime al rates far in excess of the national average. BJA encourages States to invest JAG funds in programs to combat gun violence, enforce existing firearms laws, and improve the process for ensuring that persons prohibited from purchasing guns are prevented from doing so, by enhancing reporting to the FBl's NICS.
National Incident-Based Reporting System (NIBRS) - The FBI has formally announced its intentions to establish NIBRS as the law enforcement (LE) crime data reporting standard for the nation. The transition to NIBRS will provide a more complete and accurate picture of crime at the national, State, and local level. Once this transition is complete, the FBI will no longer collect summary data and will accept data only in the NIBRS format. Also, once the transition is
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complete, JAG award amounts will be calculated on the basis of submitted N!BRS data. Transitioning all law enforcement agencies to NIBRS is the first step in gathering more
comprehensive crime data. BJA encourages State recipients of FY 2017 JAG awards to use
JAG funds to expedite the transition to NIBRS.
Officer Safety and Wellness - The issue of law enforcement safety and wellness is an important priority for the Department of Justice. Preliminary data compiled by the National Law
Enforcement Officers Memorial Fund indicates that there were 135 line-of-duty law enforcement deaths in 2016 - the highest level in the past five years, and a 1Opercent increase from 2015
(123 deaths).
Firearms-related deaths continued to be the leading cause of death (64), increasing 56 percent
from 2015 (41). Of particular concern is that, of the 64 firearms-related deaths, 21 were as a
result of ambush-style attacks representing the highest total in more than two decades. Traffic-
related deaths continued lo rise in 2016 with 53 officers killed, a 10 percent increase from 2015 (48 deaths). Additionally, there were 11 job-related illness deaths in 2016, mostly heart attacks.
BJA sees a vital need to focus not only on tactical officer safety concerns, but also on health
and wellness as they affect officer performance and safety. It is important for law enforcement
to have the tactical skills necessary, and also be physically and mentally well, to perform, survive, and be resilient in the face of the demanding duties of the profession. BJA encourages States to use JAG funds to address these needs by providing training, such as paying for tuition and travel expenses related to attending trainings such as the VALOR training, as well as funding for health and wellness programs for law enforcement officers.
Border Security- The security of the United States borders is critically important to the
reduction and prevention of transnational drug-trafficking networks and combating all forms of human trafficking networks within the United States (sex and labor trafficking offoreign · nationals and U.S. citizens of all sexes and ages). These smuggling operations on both sides of the border contribute to a significant increase in violent crime and United States deaths from dangerous drugs. Additionally, illegal immigration continues to place a significant strain on federal, State, and local resources-particularly those agencies charged with border security and immigration enforcement-as well as the local communities into which many of the illegal immigrants are placed. BJA encourages States to use JAG funds to support law enforcement hiring, training, and technology enhancement in the area of border security.
Collaborative Prosecution - BJA supports strong partnerships between prosecutors and police
as a mean to improve case outcomes and take violent offenders off the street. BJA strongly
encourages State and local law enforcement to foster strong partnerships with prosecutors to adopt new collaborative strategies aimed at combating increases in crime, particularly violent crime. (BJA's "Smart Prosecution" Initiative is a related effort by OJP to promote partnerships between prosecutors and researchers to develop and deliver effective, data-driven, evidencebased strategies to solve chronic problems and fight crime.)
Goals, Objectives, and Deliverables
In general, the FY 2017 JAG State program is designed to provide additional personnel,
equipment, supplies, contractual support, training, technical assistance, and information systems for criminal justice. Although the JAG State program provides assistance directly to States, through pass-through (and similar) requirements, the JAG State program also is designed to assist units of local government witll respect to criminal justice.
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As discussed in more detail below, a State that receives an FY 2017 JAG award will be required
to make various types of reports and to submit data related to performance measures and
accountability. The Goals, Objectives and Deliverables are directly related to the JAG Progam accountability measures at https://bjapmLoip.gov/help/iagdocs.htmL
.Evidence-Based Programs or Practices
OJP strongly emphasizes the use of data and evidence in policy making and program development in criminal justice, juvenile justice, and crime victim services. OJP is committed to:
• Improving the quantity and quality of evidence OJP generates. • Integrating evidence into program, practice: and policy decisions within OJP and the
field. • Improving the translation of evidence into practice.
O,lP considers programs and practices to be evidence-based when their effectiveness has been demonstrated by causal evidence, generally obtained through one or more outcome evaluations. Causal evidence documents a relationship between an activity or intervention (including technology) and its intended outcome, including measuring the direction and size of a change. and the extent to which a change may be attributed to the activity or intervention. Causal evidence depends on the use of scientific methods to rule out, to the extent possible, alternative explanations for the documented change. The strength of causal evidence, based on the factors described above, will influence the degree to which OJP considers a program or practice to be evidence-based. The OJP CrimeSolytions.gQy website is one resource that applicants may use to find information about evidence-based programs in criminal justice, juvenile justice, and crime victim services.
A useful matrix of evidence-based policing programs and strategies is available through the Center for Evidence-Based Crime Policy at George Mason University. BJA offers a number of program models designed to effectively implement promising and evidence-based strategies through the BJA "Smart Suite" of programs including Smart Policing, Smart Supervision, Smart Pretrial, Smart Defense, Smart Prosecution, Smart Reentry, and others (see https:l/www.bia.gov/Prograrns/CRPPE/smartsuite.html). BJA encourages States to Lise JAG funds to support these "smart on ·crime" strategies, including effective partnerships with universities and research partners and with non-traditional criminal justice partners.
B,JA Success Stories The BJA Success Stories web page features projects that have demonstrated success or shown promise in reducing crime and positively impacting communities. This web page will be a valuable resource for States, localities, territories, tribes, and criminal justice professionals who seek to identify and learn about JAG and other successful BJA-funded projects linked to innovation, crime reduction, and evidence-based practices. BJA strongly encourages the recipient to submit success stories annually {or more frequently).
If a State has a Success Story it would like to submit, it may be submitted through My BJA account, using "add a Success Story" and the Success Story Submission form. Register for a My BJA account using this registration link.
8. Federal Aware! Information
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BJA expects to make up to 56 awards of up to $17.7 million, with an estimated total amount awarded of up to $174.4 million.
BJA plans to make awards for a four-year period of performance, to begin on October 1, 2016. An extension should not exceed 12 months. An extension beyond this period may be made on a case-by-case basis at the discretion of BJA and must be requested via GMS no less than 30 days prior to the end of the period for performance.
The expected allocations by State for the FY 2017 JAG program can be found at: _https://www.bia.gov/Funding/17JAGStaleAJlocations. pd/.
All awards are subject to the availability of appropriated funds and to any modifications or additional requirements that may be imposed by statute.
Type of Award BJA expects that any award under this solicitation will be in the form of a grant. See Statutory and Regulatory Requirements: Award Conditions, under Section F. Feder.ii Award Administration Information, for a brief discussion of important statutes, regulations, and award conditions that apply to many (or in some cases, all) OJP grants.
JAG awards are based on a statutory formula as described below:
Once each fiscal year's overall JAG Program funding level is determined, BJA works with BJS to begin a four-step grant award calculation process, which, in general, consists of:
1. Computing an initial JAG allocation for each State, based on its share of violent crime
and population (weighted equally).
2. Reviewing the initial JAG allocation amount to determine if the State allocation is Jess
than the minimum award amount defined in the JAG legislation (0.25 percent of the
total). If this is the case, the State is funded at the minimum level, and the funds required
for this are deducted from the overall pool of JAG funds. Each of the remaining States receive the minimum award plus an additional amount based on its share of violent crime and population.
3. Dividing each State's final award amount (except for the territories and District of Columbia) between the State and its units of local governments at a rate of 60 and 40 percent, respectively.
4. Determining unit of local government award allocations, which are based on their
proportion of the State's 3-year violent crime average. If the "eligible award amount" for a particular unit of local government as determined on this basis is $10,000 or more, !hen the unit of local government is eligible to apply directly to OJP (under the JAG Local solicitation) for a JAG award. If the "eligible award amount" to a pa,ticular unit of local government as determined on this basis would be less than $10,000, however. the funds are not made available for a direct award to that particular unit of local government, but instead are added to the amount that otherwise would have been awarded to the State. (The State's obligations with respect to this additional amount for the "less-than-$10,000 jurisdictions" are summarized above.)
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Financial Management and System of Internal Controls Award recipients and subrecipients (including recipients or subrecipients that are pass-through entities 1) must, as described in the Part 200 Uniform Requirements 2 as set out at 2 C.F.R.
200.303:
(a) Establish and maintain effective internal control over the Federal award that provides reasonable assurance that [the recipient (and any subrecipient)] is managing the Federal award in compliance with Federal statutes, regulations, and the terms and conditions of the Federal award. These internal controls should be in compliance with guidance in "Standards for Internal Control in the Federal Government" issued by the Comptroller General of the United States and the "Internal Control Integrated Framework", issued by the Committee of Sponsoring Organizations of the Treadway Commission (COSO).
(b) Comply with Federal statutes, regulations, and the terms and conditions of the Federal awards.
(c) Evaluiite and monitor [the recipient's (and any subrecipient's)] compliance with statutes, regulations, and the terms and conditions of Federal awards.
(d) Take prompt action when instances of noncompliance are identified including noncompliance identified in audit findings.
(e) Take reasonable measures to safeguard protected personally identifiable information and other information the Federal awarding agency or pass-through entity designates as sensitive or [the recipient (or any subrecipient)J considers sensitive consistent with applical,le Federal, State, local, and tribal laws regarding privacy and obligations of confidentiality.
To help ensure that applicants understand administrative requirements and cost principles, OJP encourages prospective applicants to enroll, at no charge, in the DOJ Grants Financial Management Online Training, available here.
Budget and Financial Information
Trust Fund- SMs may draw down JAG funds either in advance or on a reimbursement basis.
To draw down in advance, a trust fund must be established in which to deposit the funds. The trust fund may or may not be an interest-bearing account. If subrecipients draw down JAG funds in advance, they also must establish a trust fund in which to deposit funds.
Tracking and reporting regarding JAG funds used for State administrative costs - As indicated earlier, a State may use up to 1Opercent of a JAG award, including up to ·10 percent of any earned interest, for costs associated with administering the award. Administrative costs (when utilized) must be tracked separately; a recipient must report in separate financial status reports
1 For purposes of this solicitation, the phrase "pass-through entity" includes any recipient or subreclpient that provides a subaward ("subgrant") to carry out part of the funded award or program. 2 The "Part 200 Uniform Requirements" refers to the DOJ regulation at 2 C.F.R Part 2800, which adopts (with certain modifications) the provisions of 2 C.F.R. Part 200.
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(SF-425) those expenditures that specifically relate to each particular JAG Award during any particular reporting period.
No commingling. Both the State recipient and all subrecipients of JAG funds are prohibited from commingling funds on a program-by-program or project-by-project basis. For this purpose, use of the administrative JAG funds to perform work across all active awards in any one year is not considered comingling.
Cost Sharing or Match Requirement The JAG program does not require a match.
For additional cost sharing and match information, see the DOJ Grants Financial Guide.
Pre-Agreement Costs (also known as Pre-awarcl Costs) Pre-agreement costs are costs incurred by the applicant prior to the start date of the period of performance of the grant award.
OJP does not typically approve pre-agreement costs. An applicant must request and obtain the prior written approval of OJP for any such costs. All such costs incurred prior to award and prior to approval of the costs are incurred al the sole risk of the applicant. (Generally, no applicant should incur project costs before submitting an application requesting federal funding for those costs.)
Should there be extenuating circumstances that make ii appropriate for OJP to consider approving pre-agreement costs, the applicant may contact the point of contact listed on the title page of this solicitation for the requirements concerning written requests for approval. If approved in advance by OJP, award funds may be used for pre-agreement costs, consistent with the recipient's approved budget and applicable cost principles. See the section on "Costs Requiring Prior Approval" in the DOJ Grants Financial Guide for more information.
Prior Approval, Planning, and Reporting of Conference/Meeting/Training Costs OJP strongly encourages every applicant that proposes to use award funds for any conference-, meeting-, or training-related activity (or similar event) to review carefully-before submitting an application-the OJP and DOJ policy and guidance on approval, planning, and reporting of such events, available at https://www.oip.gov/financialguide/DOJ/PostawardRequirements/chapter3.1 Oa. htm.
OJP policy and guidance (1) encourage minimization of conference, meeting, and training costs; (2) require prior written approval (which may affect project timelines) of most conference, meeting, and training costs for cooperative agreement recipients, as well as some conference, meeting, and training costs for grant recipients; and (3) set cost limits, which include a general prohibition of all food and beverage costs.
Costs Associated with Language Assnstaroce (if applicable) If an applicant proposes a program or activity that would deliver services or benefits to
individuals, the costs of taking reasonable steps to provide meaningful access to those services or benefits for individuals with limited English proficiency may be allowable. Reasonable steps to provide meaningful access to service,s or benefits may include interpretation or translation services, where appropriate.
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For additional information, see the "Civil Rights Compliance" section under "Overview of Legal Requirements Generally Applicable to OJP Grants and Cooperative Agreements - FY 2017 Awards" in the OJP Funding Resource Center.
C. Eligibility Information
For information on eligibility, see the title page of this solicitation.
Note that, as discussed in more detail jielow, the certification regarding compliance with 8 U.S.C. § 1373 must be executed and submitted before a State can make a valid award acceptance. Also, a State may not receive award funds (and its award will include a condition that withholds funds) until it submits a properly-executed "Certifications and Assurances by Chief Executive of Applicant Government."
D. Application and Submission Information
What an Application Should Include This section describes in detail what an application should include. An applicant should anticipate that if it fails to submit an application that contains all of the specified elements, it may negatively affect the review of its application; and, should a decision be made to make an award, it may result in the inclusion of award conditions that preclude the recipient from accessing or using award funds until the recipient satisfies the conditions and OJP makes the funds available.
An applicant may combine the Budget Narrative and the Budget Detail Worksheet in one document. If an applicant submits only one budget document, however, it must contain both ·narrative and detail information. Please review .the "Note on File Names and File Types" under How to Apply to be sure applications are submitted in permitted formats.
OJP strongly recommends that applicants use appropriately descriptive file names (e.g., "Program Narrative," ''Budget Detail Worksheet and Budget Narrative," "Timelines," "Memoranda of Understanding," "Resumes") for all attachments. Also, OJP recommends that applicants include resumes in a single file.
In general, if a State falls to submit required information or documents, OJP either wm
return the State's application in the Grants Management System (GMS) for submission of the missing information or documents, or will attach a condition to the award that will withhold award funds until the necessary information and documents are submitted. (As discussed elsewhere in this sollcitatlon, the certification regarding compliance with 8
U.S.C. § 1373 - which Is set out at Appendix II - will be handled differently. Unless and
until that certification is submitted, the State will be unable to make a valid acceptance of the award.)
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1. Information to Complete the Application for Federal Assistance (SF-424)

The SF-424 is a required standard form used as a cover sheet for submission of preapplications, applications, and related information. GMS takes information from the applicant's profile to populate the fields on this form.

To avoid processing delays, an applicant must include an accurate legal name on its SF424. Current OJP award recipients, when completing the field for "Legal Name," should use the same legal name that appears on the prior year award document, which is also the legal name stored in OJP's financial system. On the SF-424, enter the Legal Name in box 5 and
Employer Identification Number {EIN) in box 6 exactly as it appears on the prior year award
document. An applicant with a current, active award(s) must ensure that its GMS profile is current. If the profile is not current, the applicant should submit a Grant Adjustment Notice updating the information on its GMS profile prior to applying under this solicitation.

A new applicant entity should enter the Official Legal Name and.address of the applicant
entity in box 5 and the EIN in box 6 of the SF-424.

Intergovernmental Review: This solicitation ("funding opportunity") is within the scope of

Executive Order 12372, concerning State opportunities to coordinate applications for federal·

financial assistance. See 28 C.F.R. Part 30. An applicant may find the names and

addresses of State Single Points of Contact {SPOCs) at the following website:

https://www.whitehouse.gov/omb/grants spoc/. If the State appears on the SPOC list, the

applicant must contact the State SPOC to find out about, and comply with, the State's

process under E.O. 12372. In completing the SF-424, an applicant whose State appears on

the SPOC list is to make the appropriate selection in response to question 19 once the

·

.applicant has complied with its State E.O. 12372 process. (An applicant whose State does

not appear on the SPOC list should answer question 19 by selecting the response that the

"Program is subject to E.0. 12372 but has not been selected by the State for review.")

2. Project Abstract
Applications should include a high-quality project abstract that summarizes the proposed project in 400 words or less. Project abstracts should be:
• Written for a general public audience. • Submitted as a separate attachment with "Project Abstract" as part of its file name. • Single-spaced, using a standard 12-point font (Times New Roman) with Hnch margins. • Include applicant name, title of the project, a brief description of the problem to be
addressed and the targeted area/population, project goals and objectives, a description of the project strategy, any significant partnerships, and anticipated outcomes. • Identify up to 10 project identifiers that would be associated with proposed project activities. The list of identifiers can be found at www.bia.gov/funding/JAGldentifiers.pdf.

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3. Program Narrative
The following sections should be included as part of the program narrative1:
a. Statement of the Problem - Identify the State's strategy/funding priorities for the FY 2017 JAG funds, the subgrant award process and timeline, and a description of the programs to be funded over the 4-year grant period. States are strongly encouraged to prioritize the funding on evidence-based projects.
b. Project Design and Implementation -· Describe the State's strategic planning process that guides its priorities and funding strategy. This should include a description of how local communities are engaged in the planning process and the data and analysis utilized to support the plan; it should identify the stakeholders currently participating in the strategic planning process, t11e gaps in the State's needed resources for criminal justice purposes, and how JAG funds will be coordinated with State and related justice funds.
c. Capabilities and Competencies - Describe any additional strategic planning/coordination efforts in which the State participates with other criminal justice criminal/juvenile justice agencies in the State.
d. Plan for Collecting the Data Required for this Solicitation's Performance Measures OJP will require each successful applicant to submit specific performance measures data as part of its reporting under the_award (see "General Information about PostFederal Award Reporting Requirements" in Section F. Federal Award Administration Information). The performance measures correlate to the goals, objectives, and deliverables identified under "Goals. Obfectives. and Deliverables" in Section A. Program Description. Post award, recipients will be required to submit quarterly performance metrics through BJA's PMT, located at https://biapmt.ojp.gov. The application should describe the applicant's plan for collection of all of the performance measures data listed in the JAG Program accountability measures at: https://biapmt.oip.gov/help/jagdocs.htmL
BJA does not require applicants to submit performance measures data with their application. Performance measures are included as an alert that BJA will require successful applicants to submit specific data as part of their reporting requirements. For the application, applicants should indicate an understanding of these requirements and discuss how they will gather the required data, should they receive funding.
Note on Project Evaluations An applicant that proposes to use award funds through this solicitation to conduct project evaluations should be aware that certain project evaluations (such as systematic investigations designed to develop or contribute to generalizable knowledge) may constitute "research" for purposes of applicable DOJ human subjects protection regulations. However, project evaluations that are intended only to generate internal improvements to a program or service, or are conducted only to meet OJP's performance measure data reporting requirements, likely do
3 For information on subawards (including the details on proposed subawards that should be included in the application), see "Budget and Associated Documentation" under Section D. AQJ2lication and Submission Information.
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not constitute "research." Each applicant should provide sufficient information for OJP to determine whether the particular project it proposes would either intentionally or unintentionally collect and/or use information in such a way that it meets the DOJ regulatory definition of research that appears al 28 C.F.R. Part 46 ("Protection of Human Subjects").
Research, for the purposes of human subjects protection for OJP-funded programs, is defined as "a systematic investigation, including research development, testing and evaluation, designed to develop or contribute lo generalizable knowledge." 28 C.F.R. 46.102(d).
For additional information on determining whether a proposed activity would constitute research for purposes of human subjects protection, applicants should consult the decision tree in the "Research and the Protection of Human Subjects" section of the "Requirements related to Research" web page of the "Overview of Legal Requirements Generally Applicable to OJP Grants and Cooperative Agreements - FY 2017" available through the OJP Funding Resource Center. Every prospective applicant whose application may propose a research or statistical component also should review the "Data Privacy and Confidentiality Requirements· section on that web page.
4. Budget and Associated Documentation
a. Budget Detail Worksheet A sample Budget Detail Worksheet can be found al www.ojp.gov/funding/Apply/Resources/BudgetDetailWorksheet. pdf An applicant that submits its budget in a different format should use the budget categories listed in the sample budget worksheet. The Budget Detail Worksheet should break out costs by year.
For questions pertaining to budget and examples of allowable and unallowable costs, see the DOJ Grants Financial Guide.
b. Budget Narrative The budget narrative should thoroughly and clearly describe every category of expense listed In the proposed budget detail worksheet. OJP expects proposed budgets to be complete, cost effective, and allowable (e.g., reasonable, allocable, and necessary for project activities). This narrative should include a full description of all costs, including administrative costs (if applicable).
An applicant should demonstrate in its Budget Narrative how it will maximize cost effectiveness of award expenditures. Budget narratives should generally describe cost effectiveness in relation to potential alternatives and the goals of the project. For example, a budget narrative should detail why planned in-person meetings are necessary, or how technology and collaboration with outside organizations could be used to reduce costs, without compromising quality.
The Budget Narrative should be mathematically sound and correspond clearly with the information and figures provided in the Budget Detail Worksheet. The narrative should explain how the applicant estimated and calculated all costs, and how those costs are necessary to the completion of the proposed project. The narrative may include tables for clarification purposes, but need not be in a spreadsheet format. As with the Budget Detail Worksheet, the budget narrative should describe costs by year,
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c. Information on Proposed Subawards (if any), as wen as on Proposed Procurement
Contracts (If any) Applicants for OJP awards typically may propose to make "subawards." Applicants also may propose to enter into procurement "contracts" under the award.
Whether-for purposes of federal grants administrative requirements-a particular agreement between a recipient and a third party will be considered a "subaward" or instead considered a procurement "contract" under the award is det,,rmined by federal rules and applicable OJP guidance. It is an important distinction, in part because the federal administrative rules and requirements that apply to "subawards" and procurement "contracts': under awards differ markedly.
In general, the central question is the relationship between what the third-party will do under its agreement with the recipient and what the recipient has committed (to OJP) to do under its award to further a public purpose (e.g., services the recipient will provide, products it will develop or modify, research or evaluation it will conduct). If a third party
or will provide some of the services the recipient has committed (to OJP) lo provide, will
develop or modify all part of a product the recipient has committed (to OJP) to develop or modify, or conduct part of the research or .evaluation the recipient has committed (to OJP) to conduct, OJP will consider the agreement with the third party a subaward for purposes of federal grants administrative requirements.
This will be true even if the recipient, for Internal or other non-federal purposes, labels or
treats its agreement as a procurement, a contract, or a procurement contract. Neither the title nor the structure of an agreement determines whether the agreement-for purposes of federal grants administrative requirements-is a "subaward" or is instead a procurement "contract" under an award.
Additional guidance on the circumstances under which (for purposes of federal grants administrative requirements) an agreement constitutes a subaward as opposed to a procurement contract under an award is available (along with other resources) on the OJP Part 200 Uniform Requirements web page.
(1) Information on proposed sUJbawards and required certification regarding 8 U.S.C. § 1373 from certain subrecipients
General requirement for federal authorization of any subaward; statutory a11thorizations of subawards under the Byme JAG program statute. Generally, a recipient of an OJP award may not make subawards ("subgrants") unless the recipient has specific federal authorization to do so. Unless an applicable statute or DOJ regulation specifically authorizes (or requires) particular subawards, a recipient must have authorization from OJP before it may make a subaward.
JAG subawards that are required or specifically authorized by statute (see 42
U.S.C. § 37511a) and 42 U.S.C. § 3765) do not require prior approval to authorize subawards. This includes subawards
made by States under the JAG program.
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A particular subaward may be authorized by OJP because the recipient included a sufficiently detailed description and justifica1ion of the proposed subaward in the application as approved by OJP. If, however, a particular subaward is not authorized by federal statute or regulation, and is not sufficiently described and justified in the application as approved by OJP, the recipient will be required, post--award, to request and obtain written authorization from OJP before it may make the subaward.
If an applicant proposes to make one or more subawards to carry out the federal award and program, and those subawards are not specifically authorized (or required) by statute or regulation, the applicant should: (1) identify (if known) the proposed · subrecipient(s), (2) describe in detail what each subrecipient will do to carry out the federal award and federal program, and (3) provide a justification for the subaward(s), with details on pertinent matters such as special qualifications and areas of expertise. Pertinent information on subawards should appear not only in the Program Narrative, but also in the Budget Detail Worksheet and budget narrative.
NEW Required certification regarding 8 U.S.C. § 1373 from any proposed
su/Jrecipient that is a unit of local government or "public" institution of higher
education. Before a State may subaward FY 2017 award funds to a unit of local government or to a public institution of higher education. it will be required (by award condition) to obtain a properly-executed certification regarding compliance with 8 U.S.C.
§ 1373 from the proposed subrecipient. (This requirement regarding 8 U.S.C. § 1373 will
not apply to subawards to Indian tribes). The specific certification the State must require from a unit of local government will vary somewhat from the specific certification it must require from a public institution of higher education. The forms will be posted and available for download at https://ojp.gov/fundinq/Exolore/SampleCertifications8USC1373.htm.
(2) Information on proposed procurement contracts (with specific justification for proposed noncompetitive contracts over $150,000)
Unlike a recipient contemplating a subaward, a recipient of an OJP award generally does not need specific prior federal authorization to enter into an agreement that-for purposes of federal grants administrative requirements-is considered a procurement contract, provided that (1) the recipient uses its own documented procurement procedures and (2) those procedures conform to applicable federal law, including the Procurement Standards of the (OOJ) Part 200 Uniform Requirements (as set out at 2 C.F.R. 200.317 - 200.326). The 13udget Detail Worksheet and budget narrative should identify proposed procurement contracts. (As discussed above, subawards must be identified and described separately from procurement contracts.)
The Procurement Standards in the (00,J) Part 200 Uniform Requirements, however, reflect a general expectation that agreements that (for purposes of federal grants administrative requirements) constitute procurement "contracts" under awards will be entered into on the basis of full and open competition. If a proposed procurement contract would exceed the simplified acquisition threshold-currently, $150,000-a recipient of an OJP award may not proceed without competition, unless and until the recipient receives specific advance authorization from OJP to use a non-competitive approach for the procurement.
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An applicant that (at the time of its application) intends-without competition-to enter into a procurement contract that would exceed $150,000 should include a detailed
justification that explains to OJP why, in the particular circumstances, it is appropriate to
proceed without competition. Various considerations that may be pertinent to the justification are outlined in the DOJ Grants Financial Guide.
d. Pre-Agreement Costs For information on pre-agreement costs, see Section B. Federal Award Information.
5. Indirect Cost Rate Agreement (if applicable)
Indirect costs may be charged to an award only if:
a) The recipient has a current (that is, unexpired), federally-approved indirect cost rate; or
b) The recipient is eligible to use, and elects to use, the "de minimis" indirect cost rate described in the (DOJ) Part 200 Uniform Requirements, as set out at 2 C.F.R. 200.414(f).
Note: This rule does not eliminate or alter the JAG-specific restriction in federal law that charges for administrative costs may not exceed 10 percent of the award amount, regardless of the approved indirect cost rate.
An applicant with a current (that is, unexpired) federally-approved indirect cost rate is to attach a copy of the indirect cost rate agreement to the application. An applicant that does
not have a current federally-approved rate may request one through its cognizant federal
agency, which will review all documentation and approve a rate for the applicant entity, or, if the applicant's accounting system permits, applicants may propose to allocate costs in the direct cost categories.
For assistance with identifying the appropriate cognizant federal agency for indirect costs, please contact the OCFO Customer Service Center at 1-800"458"0786 or at ask.ocfo@usdoj.gov. If DOJ is the cognizant federal agency, applicants may obtain information needed to submit an indirect cost rate proposal at www.ojp.gov/funding/Apply/Resources/lndirectCosts.pdf.
Certain OJP recipients have the option of electing to use the "de minim is" indirect cost rate. An applicant that is eligible to use the "de minimis" rate that wishes to use the "de minimis" rate should attach written documentation to the application that advises OJP of both: (1) the applicant's eligibility to use the "de minim is" rate, and (2) its election to do so. If an eligible applicant elects the "de minimis" rate, costs must be consistently charged as either indirect or direct costs, but may not be double charged or inconsistently charged as both. The "de
minlmis" rate may no longer be used once an approved federally-negotiated indirect cost
rate is in place. (No entity that ever has had a federally-approved negotiated indirect cost rate is eligible to use the "de mini mis" rate.)
6. Financial Management and System of Internal Controls Questionnaire (including applicant disclosure of high-risk status)
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Every State is to download, complete, and submit the OJP Financial Management and System of Internal Controls Questionnaire as part of Its application.
Among other things, the form requires each applicant to disclose whether it currently is designated "high-risk" by a federal grant-making agency outside of DOJ. For purposes of this disclosure, high risk includes any status under which a federal awarding agency provides additional oversight due to the applicant's past performance, or other programmatic or financial concerns with the applica11t. If an applicant is designated high risk by another federal awarding agency, the applicant must provide the following information:
• The federal awarding agency that currently designates the applicant high risk. • The date the applicant was designated high risk. • The high-risk point of contact at that federal awarding agency (name, phone number,
and email address). • The reasons for the high-risk status, as set out by the federal awarding agency.
OJP seeks this information to help ensure appropriate federal oversight of OJP awards_ An applicant that is considered "high-risk" by another federal awarding agency is not automatically disqualified from receiving an OJP award. OJP may, however, consider the information in award decisions, and may impose additional OJP oversight of any award under this solicitation (including through the conditions that accompany the award document).
7. Disclosure of Lobbying Activities
An applicant that expends any funds for lobbying activities is to provide all of the information requested on the form Disclosure of Lobbying Activities (SF-LLL}.
8. Certifications ancl Assurances by the Chief Executive of the Applicant Government
A JAG application is not complete, and a State may not receive award funds, unless the chief executive of the applicant State (e.g., the governor) properly executes, and the State submits, the "Certifications and Assurances by the Chief Executive of the Applicant Government" attached to this solicitation as Appendix I.
OJP will not deny an application for an FY 2017 award for failure to submit t11ese "Certifications and Assurances by the Chief Executive of the Applicant Government" by the application deadline, but a State will not receive award funds (and its award will include a condition that withholds funds) until it submits these certifications and assurances, properlyexecuted by the chief executive of the State (e.g., the governor).
9. Certification of Compliance with 8 U.S.C. § 1373 by the Chief Legal Officer of the
Applicant Government
The chief legal officer of an applicant State (e.g., the Attorney General of the State) is to carefully review the "State or Local Government: FY 2017 Certification of Compliance with 8
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U.S.C. § 1373" that is attached as Appendix II to this solicitation. If the chief legal officer determines that he or she may execute the certification, the State is to submit the certification as part of its application.
As discussed further below, a State applicant will be unable to make a valid award acceptance of an FY 2017 JAG award unless and until a properly-executed certification by
its chief legal officer is received by OJP on or before the day the State submits an executed
award document.
10. State Strategic Plan (if applicable)
States are strongly encouraged to use JAG funding in support of an existing statewide strategic plan. An applicant State should attach a current version of the State strategic plan to its application, if one exists. If a State does not have such a plan, the program narrative should describe the State's timeline ·and process for developing such a strategic plan.
ALERT A recent amendment to the JAG program statute requires, starling with the FY 2019 JAG program, that States have in place and submit a strategic plan that identifies stakeholders, describes evidencebased approaches that will be used, and illustrates how the State will allocate funding. By law, strategic plans are to be updated every five years.
Training and technical assistance (TTA) is available from BJA's TTA providers to assist States with the development of their strategic planning process and plan.
To help ensure that States consider the impact of JAG funding decisions across the entire criminal justice system, BJA strongly encourages each State to bring all criminal justice system stakeholders together in the strategic planning process. The strategic planning process should include local governments, and representatives of all segments of the criminal justice system, including judges, prosecutors, law enforcement personnel, and corrections personnel, as well as providers of indigent defense services, victim services, juvenile justice delinquency prevention programs, community corrections, and reentry services. For more information, see the National Center for Justice Planning website.
11. Additional Attachments
a. Applicant rnsclosure of Pending Applications
Each applicant is to disclose whether it has (or is proposed as a subrecipient under) any
pending applications for federally-funded grants or cooperative agreements that (1) include requests for funding to support the same project being proposed in the application under this solicitation, and (2) would cover identical cost items outlined in the
budget submitted to OJP as part of the application under this solicitation. The applicant
is to disclose applications made directly to federal awarding agencies, and also
applications for subawards of federal funds (e.g., applications to State agencies that will
subaward ("subgrant") federal funds).
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OJP seeks this information to help avoid any inappropriate duplication of funding. leveraging multiple funding sources in a complementary manner to implement comprehensive programs or projects is encouraged and is not seen as inappropriate duplication.

Each applicant that has one or more pending applications as described above is to provide the following information about pending applications submitted within the last 12 months:

• The federal or State funding agency. • The solicitation name/project name. • The point of contact information at the applicable federal or State funding
agency.

Federal or State Funding Agency
DOJ/Office of Community Oriented Policing Services /COPS\ Health & Human Services/ Substance Abuse & Mental Health Services Administration

Solicitation Name/Project Name
COPS Hiring Program

Name/Phone/Email for Point of Contact at Federal or State Funding Agency
Jane Doe, 202/000-0000: jane.doe@usdoj.gov

Drug-Free Communities Mentoring Program/ North County Youth Mentoring Pronram

John Doe, 202/000-0000; john.doe@hhs.gov

Each applicant should include the table as a separate attachment to its application. The file should be named "Disclosure of Pending Applications." The applicant Legal Name on the application must match the entity named on the disclosure of pending applications
statement.

Any applicant that does not have any pending applications as described above is to submit, as a separate attachment, a statement to this effect: "[Applicant Name on SF424] does not have (and is not proposed as a subrecipient under) any pending applications submitted within the last 12 months for federally-funded grants or cooperative agreements (or for subawards under federal grants or cooperative agreements) that request funding to support the same project being proposed in this application to OJP and that would cover identical cost items outlined in the budget submitted as part of this application."

b. Research and Evaluation Independence and Integrity (if applicable)
If an application involves research (including research and development) and/or evaluation, the applicant must demonstrate research/evaluation Independence and integrity, including appropriate safeguards, before it may receive award funds. The

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applicant must demonstrate independence and integrity regarding both this proposed research and/or evaluation, and any current or prior related projects.
Each application should include an attachment that addresses both i. and ii. below.
i. For purposes of this solicitation, each applicant is to document research and evaluation independence and integrity by including one of the following two items:
a. A specific assurance that the applicant has reviewed its application to identify any actual or potential apparent conflicts of interest (including through review of pertinent information on the principal investigator, any co-principal investigators, and any subrecipients), and that the applicant has identified no such conflicts of interest - whether personal or financial or organizational (including on the part of the applicant entity or on the part of staff, .investigators, or subrecipients) - that could affect the independence or integrity of the research, including the design, conduct, and reporting of the research.
OR
b. A specific description of actual or potential apparent conflicts of interest that the applicant has identified - including through review of pertinent information on the principal investigator. any co-principal investigators, and any subrecipients - that could affect the independence or integrity of the research, including the design, conduct, or reporting of the research. These conflicts may be personal (e.g., on the part of investigators or other staff), financial, or organizational (related to the. applicant or any subrecipient entity). Some examples of potential investigator (or other personal) conflict situations are those in which an investigator would be in a position to evaluate a spouse's work product (actual conflict). or an investigator would be in a position to evaluate the work of a former or current colleague (potential apparent conflict). With regard to potential organizational conflicts of interest, as one example, generally an organization would not be given an award to evaluate a project, if that organization had Itself provided substantial prior technical assistance to that specific project or a location implementing the project (whether funded by OJP or other sources), because the organization in such an instance might appear to be evaluating the effectiveness of its own prior work. The key is whether a reasonable person understanding all of the facts would be able to have confidence that the results of any research or evaluation project are objective and reliable. Any outside personal or financial interest that casts doubt on that objectivity and reliability of an evaluation or research product is a problem and must be disclosed.
ii. In addition, for purposes of this solicitation, each applicant is to address possible mitigation of research integrity concerns by including, at a minimum, one of the following two items:
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a. If an applicant reasonably believes that no actual or potential apparent conflicts of interest (personal, financial, or organizational) exist, then. the
applicant should provide a brief narrative explanation of how and why it reached that conclusion. The applicant also is to include an explanation of the specific processes and procedures that the applicant has in place, or will put in place, to identify and prevent (or, at the very least, mitigate) any such conflicts of interest pertinent to the funded project during the period of performance. Documentation that may be helpful in this regard may include organizational codes of ethics/conduct and policies regarding organizational, personal, and financial conflicts of interest There is no guarantee that !he plan, if any, will be accepted as proposed.

OR

b. If the applicant has identified actual or potential apparent conflicts of interest (personal, financial, or organizational) that could affect the independence and .integrity of the research, including the design, conduct, or reporting of the research, the applicant is to provide a specific and robust mitigation plan to address each of those confllcts. At a minimum, the applicant is expected to explain the specific processes and procedures that the applicant has in place, or will put in place, to identify and eliminate (or, at the very least, mitigate) any such conflicts of interest pertinent to the funded project during the period of performance, Documentation that may be helpful in this regard may include organizational codes of ethics/conduct and policies regarding organizational, personal, and financial conflicts of interest There is no guarantee that the plan, if any, will be accepted as proposed.

OJP will assess research and evaluatio:n independence and integrity based on

considerations such as the adequacy of the applicant's efforts to identify factors that

could affect the objectivity or integrity of the proposed staff and/or the applicant entity

(and any subrecipients) in carrying out the research, development, tJr evaluation activity;

and the adequacy of the applicant's existing or proposed remedies to control any such

factors.

·

c. State Governing Body Review

Applicants must submit information via the Certification and Assurances by the Chief Executive (See e1ppendix I) which documents that the JAG application was made available for review by the governing body of the state, or to an org,~nization designated by that governing body, for a period that was not less than 30 days before the application was submitted to BJA The same Chief Executive Certification will also specify that an opportunity to comment on this application was provided to citizens prior to the application submission to the extent applicable law or established procedures make such opportunity available. In the past, this has been accomplished via submission of specific review dates; now OJP will only accept a Governor's certification to attest to these facts. States may continue to submit actual dates of review should they wish to do so, in addition to the submission of the Chief Executive Certification.

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How to Apply An applicant must submit its application through the Grants Management System /GMS), which
provides support for the application, award, and management of awards at OJP. Each applicant
entity must register in GMS for each specific funding opportunity. Although the registration
and submission deadlines are the same, OJP urges each applicant entity to register promptly. especially if this is the first time the applicant is using the system. Find complete instructions on how to register and submit an application in GMS at www.ojp.gov/gmscbt/. An applicant that experiences technical difficulties during this process should email GMS.HelpDesk@usdoj.gov or call 888-549-9901 (option 3), 24 hours every day, including during federal holidays. OJP recommends that each applicant register promptly to prevent delays in submitting an application package by the deadline.

Note on File Types: GMS does not accept executable file types as application

attachments. These disallowed file types include, but are not limited to, the following

extensions:

11 .comt

'1.bat 1"

.exe 11

11

1

c'.vbst

11 .cfg/

11 .dat,1'

11 .db/

'\dbf/

".dll/

".ini/

0 .log,11

".ora/1

11 .sys/

and 0 .zip."

Every applicant entity must comply with all applicable System for Award Management (SAM) and unique entity identifier (currently, a Data Universal Numbering System [DUNS] number) requirements. If an applicant entity has not fully complied with applicable SAM and unique identlfler requirements by the time OJP makes award decisions, OJP may determine that the applicant is not qualified to receive an award and may use that determination. as a basis for making the award to a different applicant.

All applicants should complete the following steps:

1. Acquire a unique entity identifier (DUNS number). In general, the Office of Management and Budget requires every applicant for a federal award (other than an individual) to include a "unique entity identifier'' in each application, including an application For a supplemental award. Currently, a DUNS number is the required unique entity identifier.

A DUNS number is a unique nine-digit identification number provided by the commercial company Dun and Bradstreet. This unique entity identifier is used for tracking purposes, and to validate address and point of contact information for applicants, recipients, and subreclpients. It will be used throughout the life cycle of an OJP award. Obtaining a DUNS number is a free, one-time activity. Call Dun and Bradstreet at 866-705-5711 to obtain a DUNS number or apply online al www.dnb.com. A DUNS number is usually received within 1-2 business days.

2. Acquire registration with the SAM. SAM is the repository for certain standard information about federal financial assistance applicants, recipients, and subrecipients. All applicants for OJP awards (other than individuals) must maintain current registrations in the SAM database. Each applicant must update or renew its SAM registration at least annually to maintain an active status. SAM registration and renewal can take as long as 10 business days to complete.

Information about SAM registration procedures can be accessed at https://www.sam.gov/.

3. Acquire a GMS username and password. New users must create a GMS profile by selecting the "First Time User" link under the sign-in box of the GMS l1ome page. For more
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information on how to register in GMS, go to www.oip.gov/gmscbt. Previously registered applicants should ensure, prior to applying, that the user profile information is up-to-date in GMS (including, but not limited to, address, legal name of agency and authorized representative) as this information is populated in any new application.
4. Verify the SAM (formerly CCR) registration in GMS. OJP requires each applicant to verify its SAM registration in GMS. Once logged into GMS, click the "CCR Claim" link on the left side of the default screen. Click the submit button to verify the SAM (formerly CCR) registration.
5. Search for the funding opportunity on GMS. After logging into GMS or- completing the GMS profile for username and password, go to the "Funding Opportunities" link on the left side of the page. Select BJA and FY 17 Edward Byrne Memorial State Justice Assistance Grant {JAG) Program.
6. Register by selecting the "Apply Online'' button associated with the funding opportunity title. The search results from step 5 will display the "funding opportunity" (solicitation) title along with the registration and application deadlines for this solicitation. Select the "Apply Online" button in the "Action" column to register for this solicitation and create an application in the system.
7. Follow the directions in GMS to submit an application consistent with this solicitation. Once the application is submitted, GMS will display a confirmation screen stating the submission was successful. Important: In some instances, applicants must wait for GMS approval before submitting an application. OJP urges each applicant to submit its application at least 72 hours prior to the application due date.
Note: Application Versions If an applicant submits multiple versions of the same application, OJP will review only the most recent system-validated version submitted.
Experiencing Unforeseen GMS Technical Issues An applicant that experiences unforeseen GMS technical issues beyond Its control that prevent it from submitting its application by the deadline may contact the GMS Help Desk or the SAM Help Desk (Federal Service Desk) to report the technical issue and receive a tracking number. The applicant is expected to email the NCJRS Response Center identified in the Contact Information section on the title page within 24 hours after the application deadline to request approval to submit its application after the deadline. The applicant's email must describe the technical difficulties, and must include a time line of the applicant's submission efforts, the complete grant application, the applicant's DUNS number, and any GMS Help Desk or SAM tracking number(s).
Note: OJP does not automatically approve requests to submit a iate application. After OJP reviews the applicant's request, and contacts the GMS Help Desk to verify the reported
technical issues, OJP will inform the applicant whether the request to submit a late application
has been approved or denied. If OJP determines that the untimely application submission was due to the applicant's failure to follow all required procedures, OJP will deny the applicant's request to submit its application.
The following conditions generally are insufficient to justify late submissions to OJP solicitations:
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• Failure to register in SAM or GMS in sufficient time (SAM registration and renewal can
take as long as 10 business days to complete).
• Failure to follow GMS instructions on how to register and apply as posted on the GMS website.
• Failure to follow each instruction in the OJP solicitation. • Technical issues with the applicant's computer or information technology environment,
such as issues with firewalls.
E. Application Review Information
Review Process OJP is committed to ensuring a fair and open process for making awards. BJA reviews the application to make sure that the information presented is reasonable, understandable, measurable, and achievable, as well as consistent with the solicitation. BJA will also review applications to help ensure that JAG program-statute requirements have been met.
Pursuant to the (DOJ) Part 200 Uniform Requirements, before awards are made, OJP also
reviews information related to the degree of risk posed by applicants. Among other things, to help assess whether an applicant that has one or more prior federal awards has a satisfactory record with respect to performance, integrity, and business ethics, OJP checks whether the applicant is listed in SAM as excluded from receiving a federal award. In addition, if OJP
anticipates that an aware! will exceed $150,000 in federal funds, OJP also must review and
consider any information about the applicant that appears in the non-public segment of the integrity and performance system accessible through SAM (currently, the Federal Awardee Performance and Integrity Information System; "FAPIIS").
lmportant note on FAPl!S: An applicant. at its option, may review and comment on any information about itself that currently appears in FAPIIS and was entered by a federal awarding agency. OJP will consider any such comments by the applicant, in addition to the other information in FAPIIS, in its assessment of the risk posed by the applicant.
The evaluation of risks goes beyond information in SAM, however. OJP itself has in place a framework for evaluating risks posed by applicants. OJP takes into account information pertinent to matters such as-
1. Applicant financial stability and fiscal integrity.
2. Quality of the management systems of the applicant, and the applicant's ability to meet
prescribed management standards, including those outlined in the DOJ Grants Financial Guide. 3. Applicant's history of performance under OJP and other DOJ awards (including compliance with reporting requirements and aware! conditions), as well as awards from other federal agencies. 4. Reports and findings from audits of the applicant, including audits under the (DOJ) Part
200 Uniform Requirements. 5. Applicant's ability to comply with statutory and regulatory requirements, and to effectively
implement other award requirements.
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Absent explicit statutory authorization or written delegation of authority to the contrary, the Assistant Attorney General will make .all final award decisions.

F. Federal Awa rel Administration information

Federal Award Notices OJP expects to issue award notifications by September 30, 2017. OJP sends award notification by email through GMS to the individuals listed in the application as the point of contact and the authorizing official. The email notification includes detailed instructions on how to access and view the award documents, and steps to take in GMS to start the award acceptance process. GM$ automatically issues the notifications at 9:00 p.m. eastern time on the award date.

NOTE: In order validly to accept an award under the FY 2017 JAG program, a State must

submit to GMS the certification by its chief.legal officer regarding compliance with 8 U.S.C.

§ 1373, executed using the form that appears in Appendix 11. (The Form also may be

downloaded at https://ojp,qov/funding/Explore/SampleCertifications-8USC 1373.htm,) Unless

the executed certification either- (1) .is submitted to OJP together with the signed award

document, or (2) is uploaded in GMS no later than the day the signed award document is

submitted, OJP will reject as invalid any submission by a State that purports to accept an

award under this solicitation.

·

Rejection of an initial submission as an invalid award acceptance is not a denial of the award.
Consistent with award requirements, once the State does submit the necessary certification regarding 8 U.S.C. § 1373, the State will be permitted to submit an award document executed
by the State on or after the date of that certification.
Also, in order for a State applicant validly to accept an award under the FY 2017 JAG program,
an individual with the necessary authority to bind the applicant will be required to log in; execute a set of legal certifications and a set of legal assurances; designate a financial point of contact; thoroughly review the award, including all award conditions: and sign and accept the award. The award acceptance process requires physical signature of the award document by the authorized representative and the scanning of the fully-executed award document (along with the required certification regarding 8 U.S.C. § 1373, if not already uploaded in GMS) to OJP.

Statutory and Regulatory Requirements; Award Conditions If selected for funding, in addition to implementing the funded project consistent with the OJPapproved application, the recipient must comply with all award requirements (including all award conditions), as well as all applicable requirements of federal statutes and regulations (including those referred to in assurances and certifications executed as part of the application or in connection with award acceptance, and administrative and policy requirements set by statute or regulation).
OJP strongly encourages prospective applicants to review information on post-award legal requirements generally applicable to FY 2017 OJP awards and common OJP award conditions
prior to submitting an application.

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Applicants should consult the "Overview of Legal Requirements Generally Applicable to OJP Grants and Cooperative Agreements - FY 2017 Awards," available in the OJP Funding Resource Center. In addition, applicants should examine the following two legal documents, as each successful applicant must execute both documents in GMS before it may receive any award funds.
o Certifications Regarding Lobbying: Debarment, Suspension and Other Responsibility Matters: and Drug-Free Workplace Requirements
• OJP Certified Standard Assurances (attached to this solicitation as Appendix IV)
The web pages accessible through the "Overview of Legal Requirements Generally Applicable to OJP Grants and Cooperative Agreements - FY 2017 Awards" are intended to give applicants for OJP awards a general overview of important statutes, regulations, and award conditions that apply to many (or in some cases, all) O,IP grants and cooperative agreements awarded in FY 2017. Individual OJP awards typically also will include additional award conditions. Those additional conditions may relate to the particular statute, program, or solicitation under which the award is made; to the substance of the funded application; to the recipient's performance under other federal awards; to the recipient's legal status (e.g., as a for-profit entity); or to other pertinent considerations.
Individual FY 2017 Byrne JAG awards will include two new express conditions that, with respect to the "program or activity" that would be funded by the FY 2017 award, are designed to ensure that States and units of local government that receive funds from the FY 2017 Byrne JAG award: (1) permit personnel of the U.S. Department of Homeland Security ("OHS") to access any correctional or detention facility in order to meet with an alien (or an individual believed to be an alien) and inquire as to his or her right to be or remain in the United States: and (2) provide at least 48 hours' advance notice to D:HS regarding the scheduled release date and time of an alien in the jurisdiction's custody when OHS requests such notice in order to take custody of the alien pursuant to the Immigration and Nationality Act.
Compliance with the requirements of the two foregoing new award conditions will be an authorized and priority purpose of the award. The reasonable costs (to the extent not reimbursed under any other federal program) of developing and putting into place statutes, rules, regulations, policies, or practices as required by these conditions, and to honor any dulyauthorized request from DHS that is encompassed by these conditions, will be allowable costs under the award.
General Information about Post-Federal Award Reporting Requirements A State recipient of an award under this solicitation will be required to submit the following reports and data.
Required reports. Recipients typically must submit quarterly financial status reports, semiannual progress reports, final financial and progress reports, and, if applicable, an annual audit report in accordance with the (DOJ) Part 200 Uniform Requirements or specific award conditions. Future awards and fund drawdowns may be withheld if reports are delinquent. (In appropriate cases, OJP may require additional reports.)
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Awards that exceed $500,000 will include an additional condition that, under specific circumstances, will require the recipient to report (to FAPIIS) information on civil, criminal, and administrative proceedings connected with (or connected to the petformance of) either the OJP award or any other grant, cooperative agreement, or procurement contract from the federal government. Additional information on this reporting requirement appears in the text of the award condition posted on the OJP website at https://ojp.govlfunding/FAPIIS.htm
Data on performance measures. In addition to required reports, each recipient of an award under this solicitation also must provide data that measure the results of the work done under the award. To demonstrate program progress and success, as well as to assist DOJ with fulfilling its responsibilities under GPRA and the GPRA Modernization Act of 2010, OJP will require State recipients to provide accountability metrics data. Accountability metrics data must be submitted through BJA's Performance Measurement Tool (PMT), available at
https://bjapmt.ojp.gov. The accountability measures are available .at:
https://biapmt.ojp.gov/help/iagdocs.html. (Note that if a law enforcement agency receives JAG funds from a State, the State must submit quarterly accountability metrics data related to, · training that officers have received on use of force, racial ancl ethnic bias, de-escalation of conflict, and constructive engagement with the public.)
OJP may restrict access to award funds if a recipient of an OJP award fails to report required performance measure data in a timely manner.
G. Federal Awarding Agency Contact(s)
For OJP contact(s), see the title page of this solicitation.
For contact information for GMS, see the title page.
H. Other Information
Freedom of Information Act and Privacy Act (5 U.S.C. § 552 ancl 5 U.S.C. § 552a) All applications submitted to OJP (including all attachments to applications) are subject to the federal Freedom of Information Act (FOIA) and to the Privacy Act. By law, DOJ may withhold information that is responsive to a request pursuant to FOIA if DOJ determines that the responsive information either is protected under the Privacy Act or falls within the scope of one of nine statutory exemptions under FOIA. DOJ cannot agree in advance of a request pursuant to FOIA not to release some or all portions of an application.
In its review of records that are responsive to a FOIA request, OJP will withhold information in those records that plainly falls within the scope of the Privacy Act or one of the statutory exemptions under FOIA. (Some examples include certain types of information in budgets, ancl names and contact information for project staff other than certain key personnel.) In appropriate circumstances, OJP will request the views of the applicant/recipient that submitted a responsive document.
For example, if OJP receives a request pursuant to FOIA for an application submitted by a nonprofit or for-profit organization or an institution of higher education, or for an application that involves research, OJP typically will contact the applicant/recipient that s~1bmitted the
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application and ask it to identify-quite precisely-any particular information in the application that applicant/recipient believes falls under a FOIA exemption, the specific exemption it believes applies, and why. After considering the submission by the applicanUrecipient, OJP makes an independent assessment regarding withholding information. OJP generally follows a similar process for requests pursuant to FOlA for applications that may contain law-enforcement sensitive information. Provide Feedback to OJP To assist OJP in improving its application and award processes, OJP encourages applicants to provide feedback on this solicitation, the application submission process, and/or the application review process. Provide feedback to OJPSolicilationFeedback@usdoj.gov.
IMPORTANT: This email is for feedback and suggestions only. OJP does not reply to
messages it receives in this mailbox. A prospective applicant that has specific questions on any program or technical aspect of the solicitati.on must use the appropriate telephone number or email listed on the front of this solicitation document to obtain information. These contacts are provided to help ensure that prospective applicants can directly reach an individual who can address specific questions in a timely manner. If you are interested in being a reviewer for other OJP grant applications, please email your resume to Qippeerrevlew@lmsolas.com. (Do not send your resume to the OJP Solicitation Feedback email account.) Note: Neither you nor anyone else from your organization or entity can be a peer reviewer in a competition in which you or your organization/entity has submitted an application.
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Application Checklist

Edward Byrne Memorial Justice Assistance Grant (JAG) Program: FY 2017 State Solicitation

This application checklist has been created as an aid in developing an application.

What an Applicant Should Do:

Prior to Registering in GMS:

_ _ Acquire a DUNS Number

(see page 28)

_ _ Acquire or renew registration with SAM

(see page 28)

To Rf!gister with GMS:

_ _ For new users, acquire a GMS username and password* (see page 28)

_ _ For existing users, check GMS username and password'

to ensure account access

(see page 29)

_ _ Verify SAM registration in GMS

(see page 29)

_ _ Search for correct funding opportunity in GMS

(see page 29)

_ _ Select correct funding opportunity in GMS (see page 29)

_ _ Register by selecting the "Apply Online" button associated with the funding opportunity

title

(see page 29)

_ _ Read OJP policy and guidance on conference approval, planning, and reporting

available at ojp,gov/financialguide/DOJ/PostawardRequirements/chapter3.10a.htm

(see page 15)

_ _ If experiencing technical difficulties in GMS, contact the NCJRS Response Center (see

page 29)

*Password Reset Notice - GMS users are reminded that while password reset capabilities exist, this function is only associated with points of contact designated within GMS at the time the account was established. Neither OJP nor the GMS Help Desk will initiate a password reset unless requested by the authorized official or a designated point of contact associated with an award or application.

Overview of Post-Award Legal Requirements:

_ _ Review the "Overview of Legal Requirements Generally Applicable to OJP Grants and Cooperative.Agreements - FY 2017 Awards" in the OJP Funding Resource Center.

Scope Requirement:

_ _ The federal amount requested is within the allowable limit(s) of the FY 2017 JAG Allocations List as listed on BJA's JAG web page.

What an Application Shoulcll Include:
_ _ Application for Federal Assistance (SF-424)

(see page 17)

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_ _ Intergovernmental Review

(see page 17)

_ _ Project Abstract

(see page 17)

_ _ Program Narrative

(see page 18)

_ _ Budget Detail Worksheet

(see page 19)

_ _ Budget Narrative

(see page 19)

_ _ Indirect Cost Rate Agreement (if applicable)

(see page 22)

_ _ Financial Management and System of Internal Controls Questionnaire (see 22)

_ _ Disclosure of Lobbying Activities (SF-LLL) (if applicable) (see page 23)

_ _ Certifications and Assurances by Chief Executive (see page 23)

_ _ Certification of Compliance with 8 U.S.C. § 1373 by Chief Legal Officer (see page 23)

_ _ State Strategic Plan (if applicable)

(see page 24)

- - Additional Attachments _ _ Applicant Disclosure of Pending Applications (see page 24)

_ _ Research and Evaluation Independence and Integrity (if applicable)

(see page 25)

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Appendix I
Certifications and Ass1.1rances by the Chief Executive of tlhe Applicant Government
Template for use by chief executive of the "State" (e.g., the governor) Note: By law, for purposes of the JAG program, the term "States" includes the District
of Columbia, the Commonwealth of Puerto Rico, the Northern Mariana Islands, the U.S. Virgin Islands, Guam, and American Samoa.
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U.S. DEPARTMENT OF JUSTICE
OFFICE OF JUSTICE PROGRAMS

Edward Byrne Justice Assistance Grant Program
FY 2017 State Sollcltation
C-er;ifi,:3t!ons ,ir.d t-.ss~rr;,n:;f•t::: b·,· ~t'.P r:hl~f f:,.,:-;".'u~i-.•e of th,-: .tt.r_,:--,h:;mt Gr'!\.:":11m .. ,,r

O.n !x>h~lf of the .appl)~11t ·~st~t~~ named below, in support of that St.;it>?'s app!iC'.3tion fur an ,1ward untl~r the FY 2017

E:dwm-d S)'me Justice Assistance ()rant ["JAG..) Progr~1n. and further to •4:2 U,S.C. § '37:52(a), I certify VMder penatty of

rusooJ·~. ~IJury to th~ Offioo ~ Justiw Programs COJP"), U.S. Dep:.vtn1ent of Justice-

'!h,:;t all of the fo-llm\lin-ei ;:ire

itru!l:t ahd CQITl;"CJ::

.

1. 1am~ chief ,exe-cu1l\ie of th~ :appllcMt State nam>:ti bi:1ow, and I h~v" the auth,otity It> m..:.:iir.e the rottmt,,'ing r,epre!re~t.atlons on my own behalf and on beh.:=ilr of the applicant StatP.-. I undo?l'St;g·nd that the~e r"li-~Jols&nt.atk,n~ wUI
be- r~li,ed upon .as mater-bl in ::my OJP d~ci~io11 10 make an .:,ward, tmder the ~ppficgtJon desoribe-d ab<we. to lh<:app1icant Stale.

2. I c,;ert\fy that no ferler.l! 'furid;;; mad-? availabfe by the mtJ.rd (lf any) th,11 OJP maki's b.ased on the applic.ation
dasclib-ed abcwe, will 00 u~d to supptant State or !OC::IJ fund~. but v,iH be used to rnoMas~ the amounts of such fuf\dt 1hat wout<l. m tht' ..ibs-11nce of federal funds. 00 made availa'bf-e for !aw entorcemem .:1c.~i\/!ties.

3. I assure- l.hat ~he applica'!ion described abov~ {and .~my amsndrne-m to that apptica~ion) •was submrtted for revi~w 10 t/"f.e g<:iveming body of the S.tah: {e.g_. t~ Stare 1,S,glstaturo}. or10 ;n'I orgs3nizatiori d-esiqr,at~d by th.l'l gov~miog body, not !,&ss. than 30 d,1ys befCll""e th~ data? o1 this oorJflt.";;!t:icr,

4. I assure that be-lbre th!? date of this e&rtifirotkin- (a) th~ .:tppll:eation f.1(.!scribed abo'.',e (.lnd any ~rnendment \o, 1h9, app1i¢.=1tion) was made publlc: -and (bl 3:rt o_ppcrtun.ity to oornment on thi'il~ appflcation {er am-.endm>£.>nt) wa!, pttr.tirli?d to dtit.,etts and to neigh,borhood or 00:mmunTt:y•bJse,d org3niU:1tWJns. to '!he e,;.terr. ~pplicable /3W rx &S'ta.blisMd procedure made- wcl'l aJ1 oppo-Ttunity ,.waH.l!ble
5. l assure that. for each fi~c,.-;! y.a.'ilr of the- aw3rd ftf any)1h111 OJP mak~ based on the .ipplication: d~seribed ~hove, the app1icant S~te wll'I malnt"a1n a.nd report such data, recorrls, and infonT1.atlon (programm.atfo and 1'1nt1n.ei.1sl}, as OJP trtJ.y r,ea.sor\.itb!y r~quiM

8, I Nrtify th.st-ta) the proG'.tffrt.'S to~ ~de-0 by the aw:ard {if a...,y) th,nt OJP ma:kes b:a'!.ed on th~ .apolicat~n described alx>ve- me,et all th~ ret,tuitem-erits of t~t> JAG Pro.gr.am s!atvt-e (-12 U.S.C -§§ 3750·3158}; (b} 13Jl ftte fnrormation o::mblnoed in that apptit..:rli-On fs cott~ci.: (c) in oonnectkin with ma~ appllca!ion. there h;;ts been ,3pprop,ri.,te o::iordination wiih .ttffoote-d ag~·nCies: and (dl it\ ¢0flfl>?Ctkln with that .award (if any). th•? ..,. ppli~nt St<1~!l' wl/J oornp?y Witf-i all provi:s:.kms of the- JAG pq-ogram statute .lnd all other apolic,3b,1e f-ederal 1-avt.5.
7. I have exarr-.itnrd oerific.:;,t<in ,enffl:le:d ~st.ate or local C't-01,·-emment: FY 2017 CE-rtifiwticf'l of CCYl"lpliaiel:? with 8 U .S,-C. § 1373" e"t:et:utad by the ,cJ;fef leg.ii offle:er of the- :Appfi¢!nt goveml't'te-nt with- fi!s,:.e,:t to the FY 20 t7 JAG proQram and submit:e<J in support of the ar.,pli~tion d-escrlbied above, .Jmf I hereby .3dop1 ~h.3t or:rtrfi.:.at:ior, a·s my own on behalf of that gove,mme-nt.

I acknowtedge that a matari~l!y false, f.clifioos, or fraudulent s.tJ:lernent for- C:ct"!C-!?3lrr-ent m et'nissioo of ,1 1nah?MI fad) iri ~his ~rtrfication. or In the ap,:,Ji;.ufon thai. lt •su-pports, may be the subje-ct of orlmfnal PfO!.reJ!ion (incltJ<.11<;,g under tS
U.S.C. §-§ 1001 and!or 1621, and'c,r 42 U.S.C. § :3795,a), .1.nd also m.1y s1;1Jl-e,::1 tne- ;;ind the applicant St..s!e to dvif pen.."Jti.es and adminlstti:J~lve r:emedles. forfafs.e olairn-s or otherwis.e (including under 31 U. S.C. §§ 37?.{1~3730 and §,§ 3S0t-3B12). 1also Jc$:nt:,W!edg-e that OJP aw::1rds, i.ncluding eert~~lcns p,rovk:l~d in cenneotion with such swar,js., are subj1aoot to r'€cview by USDOJ, Ir.eluding by OJP ar,d by '!he USOOJ Offio-e of the lnsr:,ector Gen>?rat

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Appendix II
State or Local Government: Certification of Compliance with 8 U.S.C. § 1373
Template for use by chief ieg,.al officer of the "State" (e.g., the State Attorney General)
Available for download at: https://oip.gov/funding/Explore/SampleCertifications"8USC 1373
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U.S. DEPARTMENT OF JUSTICE
OFFICE Of JUSTICE PROGRAMS

St.:ite or L')c;1f Government: FY 211H Certification of Cc,rnplifmc~ wit!1 :3 U,S,C. § 1J71

On ~\If of 1he 3PJ::l~nt go1<.~mment ent'.ly n3me,1 below, .:md In supp:,1': of its ;9pplicatil)'\, I o;rti~r und~r penalty of perjury ro th,e ()ffice cf ..lmit'.ce Pro,;,•.Js'l"IS (OJP"}, U S. 0,aparnTii;int of .;last~ ("USDOJ1. tnat 311 o' {J;F., ~/Jki\'.ing are true and corr~ct

(1) l i1m the d't'~f r~~ olftw- of lne S~E or local gowmn,ent of w:'t;c:h lhe applic3nt entity n.lmed belO'II is a part ('th>2 juti$d,ct-,o,n. at'..:i I ha'.M- th...: authi::~:-ty !O 1'1).~E thls ce-.1if-.::.:16on oo behllf of lhe jurlsdiclicn a.t1d lhe appHcant en~t~' {that is., the ~tity a.ppfying cfre.,;-JJy toOJP). Iur,C.S,,"51:rid t.'lat OJP wilt r.;,ly upon this. certific.aHon .;is a material
rep~swtat'.ori in .t1r1y 6eds-io.-. to ~ke.an ,tWJrd l!t'.'.l tr~ applicaro,t e-r,tity.

(2) I lwie Cl'ti:.i.fu!ly revi:e·1.1ed g U.S.C. § 1Jn{'a) and lb). rlduding 'the proh\Oitions on c~rttn cl¢tions by State and local go,fl:'ffl'fl!Mt erit.1ies, ~ie:s, an-d -offk:.~ ,,e.gard,ng inf,:.vrnaoo<1 on dt:zensY'!lp ;;ind immlgt:;;tion stlb.Js. l ;1Jso hav.;,. ,v1J':$VJ~d the JX'OVis.,o:r,'S .set out at (or ~furence<.T inJ s U.S~C. § l 551 note rAbalition ... and Tt'3"1-sfer of Functions.~}.
pur!i.uan1'1o which ref.w.e..~s to It~ "!:mm~ralion ard NaturJliz.a.tion Service' in 8 U.S.C. § 1~73 ara to be rr~<td~ as a lt"gal matter. .J.s ra~r;s to p3rt::Cular r.omp..~. t s of th>!!-U.S. ~mi:'>'\1 of HonW.w:d Si:Cti'f.1-y

(3) l {:ind "Jlso t1>o? applicar1t e.1ity) :JOO',e,rsbnQ that the U. S, D~p3rtment of ..laste>= 'MIi require Staff.ls an<d lot.1~ gov.e-mments {~ agen,:i>E-S or- ofM,r ent,lJes th.~~ 10 ocom]);Yvllth BU.S.C. § ·1373, w:1h ft:SP,?r.:t to any ·pri;,.gram or

aO"liVlty" ;,:.,..ni:1-00 in vihole or In PM with the W.graJ f'p4ri..::ial 35s_;_:st:Y'ii:e provided thl'OI-.Jgh the 'FY 2017 OJP program u11cfl:ir whioh th$ ieertflCJtlon is he--1r'9 submltled j""1.he- FY 20t7 OJP Program· idenr..ii~d N-n,.1), s;.oedfically lnckr:ding
:.ant s.\Kh "'~m or aoti'/1.y' of a Q"~h:mni='lltal .;ntityot -jg ency that is a -subreoipient (at:Jn,J 'U~rJ of funds under the

FY20170JPP,,,,,.ram.

(4) I (and also th;!- sippU0,31'\1 e<n-1ity) vr..dsw'!:,t:.\".d ~ l 5::o!' pu.rpo~ of this certffJC,3tlon, 'pro.gram or JCtivtty· rr"nms wllat It

m-eMS troo\s;r tide VJ of the Cj,.,; Rig-his A.ct of I ~ ~-!=E>& 42 U.S.C, § 2000d-4a} cind 'that temis us.ia-,1 in this renifi.cat'C,~

O!-·ata.re-di;:f,tye,d lt1 S U.S.C. § 110t m*.an whal they n-,9n under !hilt ~.ti::m 1101. e):c.ept !ha-t !he term ·state• al$D

~ Inc!"~ ftr.i-~~an Sa'hro td. 42 U.S.C. §J,;,,Jt{a}f2~). AJso. l ~~t'Stct'\tlliut forpllrpt:J.$e5 of thi.s oortr.ication.

n~ll'il.E1 a "p-,ftT,~· En-stitl..lt'i:::17l .o! high~r OO~~oon (i.e._ on>: that is 01,•ff*d, rontrof!i:td, or dir,a,clly ~Jr.ded by 3 State or local

s~~,e go~.ment) nor an tn1.f~ tri.oo is oonsioer'ed a

or lo0,;1( gc\':!mment entity or -aqe-ooy.

(5) I hav-E: ~:.cte<i: (ort1Jt.1~ to be odnduO!ed for me} a: diligent inq(Jiry and relJlew oonCP.mirig bolh-

(a~ the ..PfOiJ'3f'fl ('ll' a~1i\1'1tf to b-e funded fa\ i,trde or n p::1rt) \'ith the federal finanooll asSi$t3nt:-? $1.YJ~,t
by the ai;,i:[-¢ant ent':y under 1hl$ F'( 2017 OJP Ptt>T-$IT1; ,3nd

(b) any 1:,m~~iions.-or rest,.,,,::tot1:s }X'Jten~ a,pp':eable to the "p!cqam or ar.::tiv'ly" wJ-qht to~ fur~ 1Jt1.je,rt1* FY 2011 OJP Pr~, that deal with ~t>-nding to, re<fJ%t.~ or f~:,;frmg fron1. 1~h1"3ining, o; exchanging infurrn.alion of'tht- 'l'J'PSS ".fe-s.crhoo 1n BU.S.C. § t-37:?.ta) or ib), whe!J'/l?f ir-,,\w;:ed by a
Stat,e. or ~ I gcwemmw.t -e.1.Ury. -agency. or ---0-ft".;e.l:aL

(~1 As of lii-e dat(!> of lh-.s certlfi:ca11on. n~itrP.t ~ juriSC<ceoo nor ~".y~tity. age-n1~. or oftlal of th.:Jurlsd'cl~ has in effi?c!:, ~ ' i s lo have in effr:<:'t 05 i!!i si,.t';~ to er 00..r,~ b)'. any prtf!ib}tion or an:;
restrction 1h:.;it W)ll~ :appl~· IX> fiw "program or a.::-.tivity" ~o b e ~ in whole win P-l,ri \JOO& ti",-.;. FY 2017 OJP
e.. Program (wh:.rn. ~ thoe- s-pe<::if,e, P'JtPOS.I;'! of this paragraph shall /'ldt: be unrlerstood to iii.dud': any such
'program or Xtvitf of ~1'\J subrec,;pstl ~ .my tier}. and th.:il deals w-Ith enher- p) a govemnw,n l?:'\lity
or--0ff,ci;ril sending or ~·ving 1\-forma"Jon ll;i<JJe,i-a'.1"',g c.'"tizem;hlp or irnmig1"3tk,n status as rJE.sork,.ed in B
U.S.C. § f373-fa): fJ! (2} a gave-.wnent .:mt:ty ar ~n<:-y se<".d~ to, r~esth;J or"='c:i:ivi~ from rt1jlr,t1inlngT or exoh3ri,.;;thg inmmlaton, of the- cype.s 1and with resp.:ct to !n.e entfties) deSf.;rabed 'n 8 U S.C. § 13-731:b)

I aekticwl.OOge t'i\.a1. ~ ma1erialty f.:llse. "fflous. or N'.3"Jdu'.'att st31errerl'I {c." oo~:!lmer1t or om!ss.ior.: of a rn,R~..".'il ~t) ln lhis oortirY"--3"".k:l.'l, or in the W:caOOn t~<tt it-supports, may be 17w. ~.e,:t or crmlnal pro-s~ci.mcn (:mluding under 1S U.S.C. §§ 1DO r ,md:lo! 1621 andlor 42 U.S.C. § 37G5a). and also may suttect me ima the applicant mtil'y 10 oiv-J penalti',e-s ~ :admhcStta,ir,,e rerneo'."li?Sforf.31~ cums orotht>rwise {hcluding ur~ 31 U_S,C. §fi 372Q-.3730 ~ §§ 'l-E.01...._':1,$12). I also acknoWWge th:;it OJP .alo'tards. incl\1dt.g D?rtif-<'.aoon'S ptl,:)1,.lided 11 conr.~fon w,th -sud\ 3w.wds_ are subje-cl to review by USOOJ, ,nduding by
OJ:P and .by the USDOJ Off'A:'e of the ln~tiY General

·s;gnat•.J~ of Chief Legal Officer of the Jurisdklicn

Ptir;teo Nam,e of Chief tP--gal Offic-e,r

Date of Certlfictrtior+

1itle of Chi~f u~g·al Offbe.r of 'the Jurisdiction

Name of Applic.~nt Gov,e:,-mlent Entity (i.e., th-e applicant ta th& FY 2017 OJP Program kl~ntifi-e.d lx!low)

FY 2017 OJP Proqrom: Byrne Justice Assistance Grant («JAG") Program

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Appendix Ill
8 U.S.C . § 1373
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8 U.S.C. § 1373 (as in effect on June 21, 2017)
Communication between government agencies and the Immigration and Naturalization Service
(a) In general Notwithstanding any other provision of Federal, State, or local law, a Federal, 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, the Immigration and Naturalization Service information regarding the citizenship or immigration status, lawful or unlawful, of any individual. (b) Additional authority of government entities
Notwithstanding a11y other provision of Federal, State, or local law, no person or agency may prohibit, or in any way restrict, a Federal,. State, or local government entity from doing any of the following with respect to information regarding the immigration status, lawful or unlawful, of any individual;
(1) Sending such information to, or requesting or receiving such information from, the Immigration and Naturalization Service.
(2) Maintaining such information. (3) Exchanging such information with any other Federal, State, or local government entity. (c) Obligation to respond to inquiries The Immigration and Naturalization Service shall respond to an inquiry by a Federal, State, or local government agency, seeking to verify or ascertain the citizenship or immigration status of any individual within the jurisdiction of the agency for any purpose authorized by Jaw, by providing the requested verification or status information.
See also provisions set out at (or referenced in) 8 U.S.C. § 1551 note ("Abolition ... and
Transfer of Functions")
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Appendix IV
OJP c.ertifiecl Standard Assurances
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U.S. OEPARTMENTOF JUSTICE OFFICE Of JUS,TICE PROOAAM~

OMl3- No. '121·01-40 i;,.,p,re1. Of31120 t 0

CERTIFIED STANDARD ASSURANCES

On beh:ilf o:' !ns Applic~t and :;n s.u~x:nt of lhls .Jpplks~h~.n for a grant or ooop.:!r:s.Uve .;igr-e-em;rit, 1certify unc~· penalty of p<;-,1•Jry to
ihe Off.::e eif Justi0:e Ptcgrarns fOJPt U.S. Dep;irtrlE'nt of JU"&tioo ("Or.-p.1r1rr.;,nt' 1 that all o; the follov.ing ;;in. 1rue -"Id ootte:ct:

{t) I h3\le ltl4l!c :iulhOOty to make lhefulloving r~,,.enbt/Qi'lS on ~ f ctf "7)":J:>'f aoo·the Appic.ant. It.'l'le$rsra'YJ tta th~e
r~tJt'«rs v,";i be- r,..lioo upon~ nuteri.:i lna")' OJP deds.ioo tortlai:e ~ d'!l;tfd ~th?ft....ri;ilic.wt bJsed oo tis ~"'.$'en

{2} I u.,rtlfy that the Jlfi,S/k.anthas th'2 ~ ~ t o ~ for~ ~ .HiSlstY;o.i 5-':'J(11t by lhe a,."Pf\:,11iM. are th:.t it~ 1111:! "rnluijoo:,I, mTiagE!'lal, .;nd ftli.m0,il c~.,_,t:,Jfy Mdud.ng funds s'iffici/J.llt to p;,y ;r,y re_.qu.rej noo,.?~ 5rote of p.toja'i oosl:s) to J,iari, rnY1~, .zttd c."lrpll?tt> lr-E prqcet dac.ri/:.00 n ths ~~Mpropgly_

(3J l .aa;.st.re 1!-1:t., lhrotqioot ~ ~,,.zd of p;rfcmoroeiorttie ai,vard- (ff .Jnf) rn.sda by OJP b2.~ Cf1 th4- .a,pp.'i~
;,J\varo- fa) the ,\.'1)11c.:W w11 cc:trdywith ill aw..'td~l""d'Mnts and al ~rat sbillte-s. ID:! r~Jl;;iitr!S a·Pj'.1U~ 10 the

{b) too Ji.wllroni: 1\011\'lq'J/re .JU subr~-t'l~rrts 10 COITiJ:'1y y,;t,, a1 ~ l i e ~\7.!ld 'E<IU~ai1S Yid ";?7 ~iC'.xl,E-fada·ct s ~ ;;;n:i r,;,gi..t.st..ns·. and

tel !N:~<'.3fif. 1•,rn mtiW-211 ~ams ro aootess .N preve.'i .::irl}'~nUJC>".31 ocrrl'Jct m r"~t iln,j JJ'r;o ta prti'iiqit
eJT~O)'lt9S from ,isng ~ir pO-;ltlOI'\$ 111 -...y ntr1,~f-< th3t ~~- nr ai:t-"-?m to ?,"Se. ,a ~ : t Ct" ftn:r.wl Cfflftitt of ..~ . .

{4)

.TWh.i;

A~pcp!r'i.tc;!s'UPtcuinfdioea(S~tyaJln'Qcliu.:l:!fii.lltst-hte~feesdEan.~ds~talt!aJltaigtt3"n$:l~r~-3n,."i1n.cgttsl.o

~~e
ttW f\glts

to ltw J'J'3'd ~\f a1y) ~ by OJPw-se-d a°"' nc,r.iJfscn,,11:r.at1M. Sl)ct. in ~OOn--

oo

the

eo l.!I tM A.,.;:,liront uroer~..e111ds th-3f lhe ~flcab'.e ~~ ~ r i ~ to ei\11 rights wif indi..de- sectk'n i of-tll'.!' C.vi Ri{t.~ .i!<d of
!004 ('12 U.S.C. § ~:iJOd); secti:::o rot of th.: R'm.JbliG.'bi Art ct rnn{.29: U.3.C. § 7?4): ~ctioo rot cflhe EdJ:-a"itrl ~lrmrns
d 1972 (20 U.S.C. § 16131): N <J.G,.."ticri 31.)3 of the tv;p 0G;..~nV'.3fion Act. of Ji)75 (~2 lJ.S.C. _§-8102:t

(b} 1M AtpliCM'I ~\;.'lrld'!; ~ the ~k-~t ~ 6 ~r-t~ to nood~rrnna~ ~ incl..:r'A ~er. 9l5ic-) ofH!e Ict the Co1tiws Crime Centro! Md S..~ Str,;,e,i::s kt ci tOO.S r-42 U.S.C.. §3780tl(c)); ~Y'JJ 1?07(e) of the V\ctirmd Crin'P. Actd i·tl'S4 ~.1,2 U.S.C. § 10004(,e-}); sooliC112W.fl{b}cf thi! J.,"i'-mie .Just't>= Yid C~Y..qu£..ol"o~ Pr.u,,ntiCfl Act of 21)32 {~2 U.S.-C. § f~7:-fol): ~ rut the 9JW1f ,::~ition sel(IIJI al x'Olitn 400'.l2t'bj(1$) of ff Vlol~ Aga1ist ·~1'cirren k:t. f4-2 U.S.C. § 12.92e{b)(t3)J a!sn rn.;iy ..:;wy;

ft) IN- ~c.ant l.Y'.dersian:JS Iha! t rr'l..lst r«¥,Jira any sttfOOpl~ to-ron.."fywiih .111 sum ~iCJbls- st>.fut-Ml (a"d 3$So,·:fattt!
,egOOt'cns); ~

{d} tn bat~ r.,f 'the /¢'~. I nuke ft "Stecifc ~!':UfJTC>l'.'$ sel cut~ 2B: C.FR. §§ 42. 100-Mld 42,104

{5) Th£> A~~t Sso l.VlOerstancls NI: (fl add:OC\'l tc• any applli::ab'e $:W"JWll-':pecifiC ~!11bns 3".d to :.;:pt~e 5ooer.:i ~~~ th::t: ~:in to ci...il lights a'Jd nY-..:lisuirrinaTion} 1h~ fe-d;;ral r1;1~.1latiMS -appl1~ lo &-.e ,31.'121\1 j{ any) n ~ hy OJP b..!6e(l_·oo ~
~cntrla.)' lrdl.l-Je, rut M!'notr1r1;te:d1tJ, :2 C.F.R. Part ~O'J t'lnE- DOJ 'Pan2(l(] ll-Mc,rn Pr-qu--,r<:2FTl'!flts"I ~.25 C.F.R. Parl:5 22
{cr.a'lf;dMtii'tfy ~ res.earuh wj st.wstica' i ~ t i ) , :'3 (airrln~ r-.teillg~ sy&ems), ;J11d 41 (nurrun -=uli,ects ~~nJ,

{~j t as'SIN"e l:il-3t the Atplic.w,,.,rn s91t OJP as n~~ {md 'MI_I ~~iro: Sib'flcipiools a.'Xl·ot~"'tm: -to assist as ~ l ii'di tM ~1rfE.nt's ~<alli;:>?, \..tth !ioolion 100 of the Halli:~ Hisloric:?w"..<YV?.tcfl Acl: elf 19&• (!:-4 U.S.C, § :ID3100J, !he ~rchEclogh.."'41 ::ind H.~~ Prt.~onhtfl 11774 (M U.S.C. §§31ffll1-31Z.008), andihe N;ni(YU Errvir-«'.-trwital Pti',r,J,0.ctof tOOQ (42 U.S.C. §§, 4'3:ll--433-S). a"d 28 C.F.R P;;ru; di ~f\EF'AI and fi:.{floo:IJMI~ .md wetl;m.k;).

17) I~'SS-i.111? ti.at it'll'.? At,pllt.31"11' nll gYe the Oiepa.1tmnt ,J!",d the ~l"l'lla'lt Acto(.m,l:abNity Off,,:.,,c, lhrwgh MY authned re~ati..,2. ~s.10, ar.d Ci!){XYtll'lily ro ~'lne, all paper or ~ ~ . e roxirds related to -!I~ :siwaro \if a'lyt rn.'£1e by OJP rosed w the:
~~C,,:.
« {St I a!i.S\/re Uvd, lhE AJ:;plloant is a tJO',~tal entity, vlllh ~ t o ~ ai.ViP$ (11' at1y) tr~ by OJP b:lsed oo Im, u~iooton~

(a} it W') OO'q:lly with th:! req~1r~"'f:I.S of thE- Uniform ~003rir.<t Assisbrlre art:1 Re-ail ~ Acq.,is.tl(.T).$ lid ei 1970 (42 U.S.C, §§ 4tl01-4e.E6J, ..,.,...1>:i'l i7AIM1 th~ tte31n·~t d ~,ns cisd~ as. .1 ~t.!1 cf federal and fE(lel';l;-y--lS'!iist,e.d ~ 5 - ;;m.j

~) ilvl:J ~y\',ith req..riremeNsof 5 U.S.C. §§ 1001~1009.31Y.17324--73.ZS. v.hWlitwt~YlpcHtit.ll ~/.-ti'<'Scf~or~ ~rrtrlffit ~~00,-00.s v.tioo.e priri::i,,.,\3J Ml~~nt Is. 11 00""4'!ection with 2'1 actil.l\'\y fitunMd it'l 1.'A."'ole orin µ-t by 'k-d~
as.sis~~-

1ar.krct'Aedge-that a m~t.-t\:Jtyh!.w. 1io1JWJ'S. or fraudulent stJtE.e.11ent (or.:onoi;,.;,lr,-,.ent ot-oml,ssion of a material fa.ct) in this ~rtifloa~ioo. er TI lr..e apj';foa1100 that It :s1,.,pports. may be lh~ SJJbjet;t of ctimimi1 p;,i:.sw..Jtion (f!lO!udlng uOO:or 18 U.S.C. §§ 1001 ~,<!fer 1e,2t, ;mdftir 42 U.S.C. "§ 3-7~). and ats.o may !lllbj1;c1 me i!nd the Appllt:anl to civil pen3.t11?s and 3dministrafve .remedie'$ for ~e
d..ilrm: or oeheMi~ (incfud',n,g under31 U.S.C §§ 2.729-3730 and 3901-2812). l ~so .~~tnO\vledge th;!!t OJ? aw,3•ds, inc.'i.xf"'9 e~rtffiaMions prov'ide: in cannecllon wili1 ruch awards, ;,ire subje« ttl rr,wiel'I by !he De~rtment indl<di1\J by OJP ;,ind by the
Dapartment's CY.fi':.:E! of !he tn'!'.v?Ct.or Gerieral.

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EXHIBIT B - LOCAL JAG SOLICITATION

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U.S. Department of Justice Office of Justice Programs Bureau of Justice Assistance

0MB No. 1121-0329 Approval Expires 12/31/2018

The U.S. Department of Justice (DOJ), Office of Justice Prooran,s {O,JP), Bureau of Justice As$istance (BJA) is seeking applications for the Edward Byrne Memorial Justice Assistance Grant (JAG) Program. This program furthers the Department's mission by assisting State, local, and tribal efforts to prevent or redL1ce crime and violence.
Edward Byrne Memorial Justice Assistance Grant Program
FY 2017 Local Solicitation
Applications Due: September 5, 2017
Eligibility
Only units of local government may apply under this solicitation. By law, for purposes of the JAG Program, the term ''units of local government" includes a town, township, village, parish, city, county, borough, or 0th.er general purpose political subdivision of a state; or, it may also b.e a federally recognized Indian tribal government that performs law enforcement functions (as determined by the Secretary of the Interior). A unit of local government may be any law enforcement di$lrict or judicial enforcement district established under applicable State law with authority to independently establish a budget and impose taxes; for example, in Louisiana, a unit of local government means a district attorney or parish sheriff.
A JAG application is not complete, and a unit of local government may not receive award funds, unless the chief executive of the applicimt unit of local government (e.g., a mayor) properly executes, and the unit of local government submits, the "Certifications and Assurances by Chief Executive of Applicant Government" attached to this solicitation as Appendix I.
In addition, as discussed further J:telow, in order validly to accept a Fiscal Year (FY) 2017 JAG award, the chief legal officer of the applicant unit of local government must properly execute, and the unit of local government must submit, the specific certification regarding compliance with 8 U.S.C. § 1373 attached to this solicitation as 6,ppendix II. (Note: this requirement does not apply to Indian tribal governments.) (The text of 8 U.S.C. § 1373 appears in ~ndix 11.)
Eligible allocations under JAG are posted annually on the JAG web page under "Funding "

Case 3:17-cv-04701-WHO Document 11 Filed 10/13/17 Page 87 of 310
Deadline
Applicants mus! register in the OJP Grants Manao~ment System {GMS). prior to submitting an application under this solicitation. All applicants tnLISt register, even those that previously registered in GMS. Select the "Apply Online" button associated with the solicitation title. All registrations and applications are due by 5 p.m. eastern lime on September 5, 2017.
This deadline does not apply to the certification regarding compliance with 8 U.S.C. § 1373. As
explained belo,.y, a unit of focal government (other than an Indian tribal government) may not validly accept an award Lmless that certification is submitted to the Office of Justice Programs (OJP) on or before the day the unit of local government submits the signed award acceptance documents.
For additional information, see HowJ.P. AQPJy in SE)f:tion D. 8rmll£a..!}on and SL1bmission Information.
Contact Information
For technical assistance with submitting an application, contact the Grants Management System (GMS} SL1pport Hotline at 888~549-9901, optiol1 3, or via email at
GMS.HelpDeg@usdoj.gov. The QM§ SLipport Hotline operates 24 hours a day, 7 days a week,
including on federal holidays.
An applicant that experiences unforeseen GMS technical Issues beyond its control that prevent it from submitting its application by the deadline must email the National Criminal Justice Reference Service (NCJRS} Response Center at grc1nts(@.ncirs.llQJ!..w1thln 24 hours after the application de.adllne in order to ret:iuest approval to submit its application. Additional Information on reporting technical issues appears under "Experiencing Unforeseen GMS Technical lssL1es" In How to ApQ.L',! In Sec:ion D Ai;i!ill.cat;OIJJn,j Stibmfssion ln'orm:i(ion.
For assistance with any other requirement of this solicita:tlon, applicants may contact the NCJRS Response Center by telephone at 1-800-851-3420; vi.a TTY at 301-2.40-6310 (hearing impaired only); by emall at grants@.ncjrs gov; by fax to 301-240-6830, or by web chat
at p..!!J2s://w§Q£9Jl\~P ncirs.oov/ncjfhatl,;;J:l§Ll.§.!2. The NCJRS Response Center hours of operation are 10:00 a.m. lo 6:00 p.m. eastern time, Monday through Friday, and 10:00 a.m. ta !tOO p.m. eastern time on the solicitation close date. Applicants also may contact the
appropriate BJA S\ate Policy Advisor.
. Funding opportunity number assigned to this solicitation: BJA-2017-11301 i ·! Release date: August 3, 2017
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Contents
A. Program Description ................................................................................................... 5 Overview ..........................................................................................................................5 Program-Specific.Information ..........................................................................................5 Permissible uses of JAG Funds - In general ...................................................................5 . . Limitations on the use of JAG funds ................................................................................6 Required compliance with applicable federal laws ..........................................................8 BJA areas of emphasis ...............................................................:....................................9 Goals, Objectives, and Deliverables ....................................:......................................... 10 Evidence-Based Programs or Practices .............................................:.......................... 1O B. Federal Award Information ....................................................................................... 11 Type of Award .................................... ,...........................................................................11 Financial Management and System of Internal Controls ............................................... 12 Budget and Financial Information ..................................................................................13 Cost Sharing or Match Requirement.............................................................................,14 Pre-Agreement Costs (also known as Pre-award Costs) ............................................... 14 Prior Approval, Planning, and Reporting of Conference/Me.eting/Training Costs ........... 14 Costs Associated with Language Assistance (if applicable) ...........................................14 C. Eligibillty Information ................................................................................................ 15 D. Application and Submission Information .................................................................. 15 What an Application Should Include .............................................................................15 How to Apply ....................................... ,..........................................................................26
E. Application Review Information ................................................................................ 28
Review Process ............ ,, ...............................................................................................28 F. Federal Award Administration Information .......................:........................................ 29 Federal Award Notices ...............................................................,..................................29 Statutory and Regulatory Requirements; Award Conditions ..........................................29 General Information about Post-Federal Award Reporting Requirements .....................30 G. Federal Awarding Agency Contact(s) ...................................................................... 31 H. Other Information ..................................................................................................... 31 Freedom of Information Act and Privacy Act (5 U.S.C. § 552 and 5 U.S.C. § 552a) ..... 31 Provide Feedback to OJP ..............................................................................................32 Application Checklist. .................................................................................................... 33 Appendix I ..................................................................................................................... 35
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Edward Byrne Mennorial Justice Assistance Grant Program
FY 2017 Local Solicitation CFDA #16.738
A. Program Description
Overview The Edward Byrne Memorial Justice Assistance Grant (JAG) Program is the primary provider of federal crimlnal justice funding to States and units of local government. BJA will award JAG Program funds to eligible units of local government under this FY 2017 JAG Program local Solicitation. (A separate solicitation will be issued for applications to BJA directly from States.)
Statutory Authority: The JAG Program statut\:l ls Subpart I of Part E of Title I of the Omnibus Crime Control and Safe Streets Act of 1968. Title I of the "Omnibus Act" generally is codified at Chapter 26 of Title 42 of the United States Code; the JAG Program statute ls codified at 42 U,S.C. §§ 3750-3758, See also 28 U.S.C. § 530C(a).
Program-Sp.ec.ific Information
Permissible uses of JAG Funds - In general In general, JAG funds awarded to a unit of local government under this FY 2017 solicitation may be used to provide additional personnel, equipment, supplies, contractual support, training, technical assistance, and information systems for criminal justice, including for any one or more of the following:
Law enforcement. programs • Prosecution and court programs
Prevention and education programs Corrections and community corrections programs • Dru.g treatment and enforcement programs Planning, evaluation, and technology improvement programs Crime victim and witness programs (other than compensation) Mental health programs and related law enforcement and corrections programs, including behavioral programs and crisis intervention teams
Under the JAG Program, units of local government may use award funds for broadband deployment and adoption activities as they relate to criminal justice activities.
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Limitations on the use of JAG funds Pro/Jibited and controlled uses of funds - JAG funds may not be used (whether directly or indirectly) for any purpose prohibited by federal statute or regulation, including those purposes specifically prohibited by the JAG Program statute as set out at 42 U.S.C. § 3751 (d):
( 1) Any security enl1ancements or any equipment to any nongovernmental entity that is not engaged in criminal justice or public safety.
(2) Unless the Attorney General certifies that extraordinary and exigent circumstances exist that make the use of such funds to provide such matters essential to the maintenance of public safety and good order-
(a) Vehicles (excluding police cruisers), vessels (excluding police boats), or aircraft (excluding police helicopters)
(b) Luxury Items (c) Real estate (d) Construction projects (other than penal or correctional. institutions) (e) Any similar malters

For additional information on expenditures prohibited under JAG, as well as expenditures that are permitted but "controlled," along with the process for requesting approval regarding controlled items, refer to the ,IAG Prohibited and Controlled Expenditures Gtiida,1_1ce. Information
also appears in the JAG FAQs.

Cap on use of JAG award funds for administrative c;osts- A unit of local government may use
up to 1Opercent of a JAG award, including up to 10 percent of any earned interest, for costs
associated with administering the award.

Prohibition of supplanting; no use of JAG funds8s "match" - JAG funds may not be used to supplant State or local funds but must be used to increase the amounts of such funds that would, in the absence of federal funds, be made available for law enforcement activities. See
the JAG FAQs on BJA's JAG web page for examples of supplanting.

Although supplanting is prohibited, as disoussed under "What An~tw!Tcation Shovld !Delude," the leveraging of federal funding is encouraged.

Absent specific federal statutory authority to do so, JAG award funds may not be used as

"match" for the purposes of other federal awards,

·

Other restrictions 011 use of funds - 11 a unit of local government chooses to use its FY 2017
JAG funds for particular, defined types of expenditures, it must satisfy certain preconditions:

0 Body-Worn Cameras (BWC)
A unit of local government that proposes to use FY 2017 JAG award funds to purchase BWC equipment or to implement or enhance BWC prograh1s, must provide to OJP a certification(s) that the unit of local government has policies and procedures in place related to BWC equipment usage, data storage and access, privacy considerations,
training, etc. 1'he certification can be found at: llttps://www.bia.g9v/Funding/BodyWom.CarneraCert.pd!.

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A unit of local government that proposes to use JAG funds for BWC-related expenses will have funds withheld c1ntil the required certification is submitted and approved by OJP.
The SJA BWC Till!lhliprovides model BWC policies and best practices to assist departments In implementing BINC programs.
Apart from the JAG Program. BJA provides funds under the Body-Worn Camera Policy and Implementation Program (BWC Program). The BWC Program allows jurisdiction$ to develop and implement policies and practices required for effective program adoption and address program factors including the purchase, deployment, ahd maintenance of camera systems and equipment; data storage and access; and privacy considerations. Interested units of local government may wish to refer to the BWC web oage for more information. Units of local government should note, however, that JAG flinds may not be used as any part of the 50 percent match required by the BWC Program.
D Body Armor
Bmltistic-resistant and stab-resistant body armor can be funded through the JAG Program, as well as through BJA's BulletprO<>fVest Partnership (BVP) Program, The BVP Program is designed to provide a critical resource to local law enforcement through the purchase of ballistic-resistant and stab-resistant body armor. For more information on the BVP Program, including eligil~ility and application, refer to the BVP 111~.l:JJ.laqe. Units of local government should note, however, that JAG funds may not be used as any part of the 50 percent match required by the BVP Program.
Body armor ptirchased with JAG funds may be purchased at any threat level, make, or model from any distributor or manufacturer, as long as the body armor has been tested and found to comply with !he latest applk:able National Institute of Justice (Nl,J) ballistic
or stab standards. In addition, body armor purchased must be made in the United
States.
As is the case In the BVP Program, units of local government that propose to purchase body armor with JAG funds must certify that law enforcement agencies receiving body armor have a wr\tten "mandatory wear" policy In effect FAQs related to the mandatory wear policy and certifications can be found at: 11Hcs:li:ll.\!'lW.QllLqov/FundJDg/,JAGFAQ,pdf, This policy must be in place for at least all uniformed officers before any FY 2017 funding can be used by the unit of local government for body armor. There are no requirements regarding the nature of the policy other than it being a mandatory wear policy for all uniformed officers while on duty. The certification must be signed by the Authorized Representative and must be attached to the application If proposed as part of the application. If the unit of local government proposes to change project activities to utilize JAG fu11ds to purchase body armor after the award is accepted, the unit of local government must submit the signed certification to EJA al that time. A mandatory wear concept and issues paper and a model policy are available by contacting the BVP Customer Support Genter at vests@L1sdoL,c1QY or toll free at 1-677-758-3787. The certification form related to mandatory wear can be found at: www. b.@g ov/F undina/Bodx,l\:morMand atoi:yWe;,,rCerl pdf.
OONA Testing of Evidentiary Materials and Upload of DNA Profiles to a Database
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If JAG Program funds will be used for DNA testing of evidentiary materials, any resulting eligible DNA profiles must be uploaded to the Combined DNA Index System (CODIS, the national DNA database operated by the Federal Bureau of Investigation [FBI]) by a government DNA lab with access to CODIS. No profiles generated with JAG funding may be entered Into any other non-governmental DNA database without prior express written approval from BJA.

In addition, funds may not be used for purchase of DNA equipment and supplies when the resulting DNA profiles from such technology are not accepted for entry into CODI$.

0

Interoperable Communication

Units of local government (including subreciplents) that use FY 2017 JAG funds to

support emergency communications activities (including the purchase of interoperable

communications equipment and technologies such as voice-over-Internet protocol

bridging or gateway devices, or equipment to support t11e build out ai wireless

broadband networks in the 700 MHz. public safety band· under the Federal

Communications Commission [FCC! Waiver Order) should review FY 2.017 E)AFECOM

GtJLg_ai-,ce. The SAFECOM Guidance is updated annually to provide cLirrent information

on emergency communications policies, eligible costs, best practices, and technical

standards for State, local, tribal, and territorial 91-antees investing federal funds in

emergency communications projects, Additionally, emergency communications projects

should support the Statewide communication Interoperability Plan (SCIP) and be

coordin.ited with the fulltime Statewide Interoperability Coordinator (SWIG) ln the State

of the project. As the central coordination point for their State's interoperabi!.ity effort, the

SWJC plays a critical role, and can serve as a valuable resource. SWIGs are responsible

for the implementation of SCIP through coordination and collaboration with the

emergency response community. The U.S. Department of Homeland Security Office of

Emergency Communications maintains a list of SW!Cs for each of the States and

territorie11. Contact OFG@hg.dhs gov: All communications equipment purohased with FY

:2017 JAG Program funding should l:le identified during quarterly performance metrics

reporting.

In order to promote information sharing and enable interoperability among disparate systems across the justice and public safety communities, OJP requires the recipient to comply with DOJ's Global Justice Information Sharing Initiative guidelines and recommendations for this particular grant Recipients must conform to the Global
Standards Package (GSP) and all constituent elements, where applicable, as. described
at: t1ttps://www.it.oip.govL9.filL9Ifil119filtill!ioQ. Recipients n'lust document planned approaches to Information sharing and describe compliance lo GSP and an appropriate privacy policy that protects shared information, or provide detailed justification for why an alternative approach is recommended.

Required compllaf!ce with applicable federal laws By law. the chief executive (e.g., the mayor) of each unit of local government that applies for an FY 2017 JAG award must certify that the Llnil of local government will "comply with all provisions of [the JAG program statute] and all other applicable Federal laws." Ta satisfy this requirement, each unit of local government applicant must submit two properly executed certifications using
!he forms shown in Appendix l and Appendix IL

All applicants should understand that OJP awards, Including certifications provided iri connection with such awards. are subject to review by DOJ, including by OJP and by the DOJ
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Office of the Inspector General. Applicants also should understand that a materially false, fictitious, or fraudulent statement (or concealment or omission of a material fact) in a certification submitted to OJP in support of an application may be the subject of criminal prosecution, and also may result in civil penalties and administrative remedies for false claims or otherwise. Administrative remedies that may be available to OJP with respect to an FY 2017 award include suspension or termination of the award, placement on the DOJ high risk grantee list. disallowance of costs, and suspension or debarment of the recipient.
BJA areas of emphasis BJA recognizes that there are significant pressures on local criminal justice systems. In these challenging times, shared priorities and leveraged resources can make a significant impact. As a component of OJP, BJA intends to focus much of its work on the areas of emphasis described below, and encourages each unit of local government recipient of ah FY 2017 JAG award to join us In addressing these challenges:
• Reducing Gun Violence - Gun violence has touched nearly every State and local government in America. While our nation has made great strides in reducing violent crime, some mLmicipalities and regions continue to experience cinacceptable levels of violent crime at rates far in excess of the national average. BJA encourages units of local government to invest JAG funds in programs to combat gun violence, enforce existing firearms laws, and improve the process for ensuring that persons prohibited from purchasing guns are prevented from doing so by enhancing reporting to the FBl's National Instant Criminal Background Check System (NlCS},
National Incident-Based Reporting System (NIBRS)- The FBI has formally announced its intentions to establish NIBRS as the law enforcement crime data reporting standard for the nation, The transition to NIBRS will provide a more complete and accurate picture of crime at the national, State, and local levels. Once this transition is complete, the FBI will no longer collect sumrnary data and will accept data only in the NIBRS format. Also, once tl1e transition is complete, JAG award amounts will be calculated on the basis of submitted NIBRS data. Transitioning all law enforcement agencies to NIBRS Is the first step in gathering more comprehensive crime data. BJA encourages recipients of 2017 JAG awards to use JAG funds to expedite the transition to NIBRS.
• Offloer Safety and Wel/noss - The Issue of law enforcement safety and wellness is an important priority for the Department of Justice. Preliminary data compiled by the National Law Enforcement Officers Memorial Flmd indicates that there were 135 Hne-of~ duty law enforcement deaths in 2016-the highest level in the past 5 years and a 10 percent increase from 2015 (123 deaths).
Firearms•related deaths continued to be the leading cause of death (64), increasing 56 percent from 2015 (41). Of particular concern is that of the 64 firearms-related deaths, 21 were as a result of ambush-style atlacks representing the highest total in more than two decades. Traffic-related deaths continued to rise In 2016 with 53 officers killed, a 10 percent increase from 2015 (48 deaths). Additionally, there were 11 job-related illness deaths in 2016, mostly heart attacks.
BJA sees a vital need to focus not only on tactical officer safety concerns but also on health and wellness as they affect officer performance and safety. It is important for law enforcement lo have the tactical skills necessary, and also be physically and mentally well, to perform. survive, and be resilient in the face of the demanding duties of the
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profession. BJA encourages units of local government to use JAG funds to address
these needs by providing training, including paying for tuition and travel expenses
related to attending trainlligs such as VALOR tr;;ijning, as well as funding for health and
wellness programs for law enforcement officers.

Border Security- The security of United States borders is critically important to the reduction and prevention of transnational drug-trafficking networks and combating all forms of human trafficking within the United States (sex and labor trafficking of foreign nationals and U.S. citizens of all sexes and ages). These smuggling operations on both sides of the border contribute to a significant increase in violent crime and U.S. deaths from dangerous drugs. Additionally, illegal immigration continues to place a slgnificant strain on federal, State, and local resources-particularly on those agencies charged with border security and immigration enforcement-as well as the local communities into which many of the illegal immigrants are placed. BJA en.courages units of local government to use JAG funds to support law enforcement hirlng, training, and technology enhancement in the area of border security.

• Collaborative Prosecution - BJA supports strong partnerships between prosecutors and police as a means to improve case outcomes and take violent offenders off the street. BJA strongly encourages State and local taw enforcement to foster strong partnerships with prosecutors lo adopt new collaborative strategies aimed at combating increases in crime, particularly violent crime. (BJA's "Smart ProsecL1tlon" Initiative Is a related effort by OJP to promote partnerships between prosecutors and researchers to develop and
deliver effective, data-driven, evidence-based strategies to solve chronic problems and
fight crime.)

Goals, Objectives, and Deliveral:>les
In general, the FY 2017 JAG Program is designed to provide additional personnel, equipment.
supplies, contractual support, training, technical assistar10e, and information systems for
criminal justice. The JAG Local Program is designed to assist units of local government with resp!i!Ct to criminal justice.

As discussed in more detail below, a unit of local government that receives an FY 2017 JAG

I • I

award will be required to prepare various types of reports and to submit data related to

performance measures and accountability. The Goals, Objectives, and Deliverables are directly

related to the _JAG Progan:i accot1r:!abilitv measure~.-

Evldence,Sased Programs or Practices OJP strongly emphasizes the use of data and evidence in policy making and program development in criminal justice, JUvenite justice, and crime victim services. OJP is committed to:

• Improving the quantity and quality of evidence OJP generates • Integrating evidence into program, practice, and policy decisions witl1in OJP and the
field , Improving the translation of evidence into practice

OJP considers programs and practices to be evidence-based when their effectiveness has been demonstrated by causal evidence, generally obtained througl, one or more outcome evaluations. Causal evidence documents a relationship between an activity or intervention (including technology) and its intended outcome, including measuring the direction and size of a change, and the extent to which a change may be attributed to the activity or intervention.
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Causal evidence depends on the use of scientific methods to rnle out, to the extent possible, alternative explanations for the documented change. The strength of causal evidence, based on the factors described above, will influence the degree lo which OJP considers aprogram or practice to be evidence-based. The OJP CrimeSolLJ!lons.qo_y website is one resource that applicants may use to find information about evidence-based programs in criminal justice, juvenile justice, and crime victim services.
A useful matrix of. evidence-based policing programs and strategies is available through the Center for Evidence:_Based Crime Policv. at George Mason University. BJA offers e number of program models designed to effectively Implement promising and evidence-based strategies through the BJA "Smart Suite" of programs, including Smart Policing, Smart Supervision, Smart Pretrial, Smart Defense, Smart Prosecution, Smart Reentry, and others (see: hltps:l/www.bia.gov/Pro_grams/CRPPE/smartsuite.html). BJA encourages units of local government to use JAG funds to support these "smart on crlme" strategies, including effective partnerships with universities, research partners, and non:traditional criminal justice partners.
BJA Success Stories The BJA Suoce_ss Stories web page features projects that have demonstrated success or
shown promise in redL1cing crime and positively impacting communities. This web page will be a
.valuable resource for States, localities, territories, tribes, and criminal justice professionals that seek to identify and learn about JAG and other successful BJA-funded projects linked ta innovation, crime reduction, and evidence-based practices. BJA strongly em:ourages the recipient to submit success stories annually (or more fr&quently).
If a unit of local government has a success story 1t would like ta submit, it may be submitted
through My BJA account, I.Ising "add a Success Story" and !tie Success Story Submission form. Register for a My 8JA account using th\s I§!9]l,Jration link.
B. Federal Award Information
BJA estimates that it will make up to 1,100 local awards totaling an estimated $83,000,000.
Awards of at least $25,000 are 4 years in length, and award periods will be from October 1, 2016 through September 30, 2020. Extensions beyond this period may be made on a case-by-
case basis at the discretion of BJA and must be requested via GMS no less than 30 days prior
to the grant end date.
Awards of less than $25,000 are 2 years in length, and award periods will be from October 1, 2016 through September 30, 201. 8. Extensions of up ta 2 years can be requested for these awards via GMS no less than 30 days prior to the grant end date, and w!JI be automatically granted L1pon request.
All awards are subject to the availability of appropriated funds and to any modifications or additional requirements that may be imposed 'by statute.
Type of Award BJA expects that any award under this solicitation will be in the form of a grant. See Statutol':,' §.!:lS!.Begulatory Requirements: Award Conditions, under Section F. Federal f'l\Nard. Adrninistratiq,n Information, for a brief discussion of Important statutes, regulations, and award conditions that apply to many (or in some ceses, all) OJP grants.
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JAG awards are based on a statutory for111ula as described below.

Once each fiscal year's overall JAG Program funding level is determined, BJA works with the Bureau of Justice Statistics (BJS) to begin a four-step grant award calculation process, which, in general, consists of:

(1) Computing an initial JAG allocation for each State, based on its share of violent crime and population (weighted equally).

(2) Reviewing the initial JAG allocation amount to determine if the State· allocation is less

than the minimum award amount defined in the JAG legislation (0.25 percent of the

total). If this is the case, the State is funded at the minimum level, and the funds required

for this are deducted frorn the overall pool of JAG funds. Each of the remaining States

receive the minimum award plus an additional amount based on its share of violent

crime and population.

'

(3) Dividing each State's final award amount (except for the territories and Distrlct of Columbia) between the State and its units of local governments at a rate of 60 and 40 percent, respectively.

(4) Determining unit of local government award allocations, which are based on their
proportion of the State's 3-year violent crime average. If the "eligible award amount" for a particular unit of local government as determined oh this basis is $10,000 or more, then the unit of local government is eligible to apply directly to OJP (under the JAG Local
solicitation) for a JAG award. If the "eligible award amount" to a particular unit of local
government as determined on this basis would be less than $10,000, however, the funds are not made available for a direct award to that particular unit of local government, bu! instead are added to the amount that otherwise would have been awarded to the State.

Financial Management and System of Internal Controls Award recipients and subrecipients (including recipients or subrecfpients that are pass-through entfties1) must, as described in the Part 200 Uniform Requirements2 as set out at 2 C.F.R.
200.303:

(a) Establish and maintain effective internal control over the Federal award that provides reasonable assurance t11a! [the recipient (and any subrecipient)] is managing the Federal award in compliance with Federal statutes, regulatfons, and the terms and conditions of the Federal award. These internal controls should be in compliance with guidance in "Standards for Internal Control in the Federal Government" 'issued by the Comptroller General of the United States and the "Internal Control Integrated Framework", issued by the Committee of Sponsoring Organizations of the Treadway Commission (COSO).
(b) Comply with Federal statutes, regulations, and the terms and conditions of the Federal awards.

1 For purposes of this solicitation, the phrase "pass-through entity" includes any recipient or subreclplent that provides a subaward ("subgrant") to carry out part of U,e funded award or program.
'The "Part 200 Uniform Requirements" refers to the DOJ regulation at 2 C.F.R Part 2800, which adopts (with certain modiFlcations) the provisions of 2 C.F.R. Part 200.
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(c) Evaluate and monitor [the recipient's (and any subrecipient's)J compliance with statutes, regulations, and the terms and conditions of Federal awards.
(d) Take prompt action when instances of noncompliance are identified including noncompliance identified in audit findings.
(e) Take reasonable measures to safeguard protected personally identifiable information and other information the Federal awarding agency or pass-through entity designates as sensitive or [the recipient (or any subreciplent)J considers sensitive consistent with applicable Federal, State, local, and tribal laws regarding privacy and obligations of confidentiality.
To help ensure that applicants understand the administrative requirements and cost principles. OJP encourages prospective applicants to enroll, at no charge, in the DOJ Grants Financial Management Online Training, available here_.
Budget and Financial Information Trusl Fund - Units of local government may draw down JAG Funds either in advance or on a reimbursement basis. To draw down In advance, a trust fund must be established in which to deposit the funds. The trust fund may or may not be an interest-bearing account If subrecipients draw down JAG funds In advance, they also must establish a trust fund in which to deposit funds.
Tracking and repotting regarding JAG funds used for State .administrative costs -As Indicated earlier, a unit of local government may use up to i Opercent of a JAG award, Including up to 10 percent of any earned interest, for costs associated with administering the award. Administrative costs (when utilized) must be tracked separately: a recipient must report in separate financial stat.us reports (SF-425) those expenditures that specifically relate to each particular JAG award during any particular reporting period.
No commingling- Both the unit of local government recipient and all subrecipienls of JAG funds are prohibited from commingling funds on a program-by-program or project-by-project basis. For this purpose, use of the administrative JAG funds to perform work across all active awards in any one year is not consfdered comingling.
Disparate Certification - In some cases, as defined by the legislation, a disparity may exist between the funding eligibility of a county and its associated municipalities. Three different types of disparities may exist:
• The first type is a zero-county disparity. This situation exists when one or more rnunicipafitiE)S within a county are eligible for a direct award but the county is not: yet the county is responsible for providing criminal justice services (such as prosecution and incarceration) for the municipality. In this case, the county is entitled to part of the municipality's award because ii shares the cost of criminal justice operations, although it may not report crime data lo the FBI. This is the most common type of disparity.
A second type of disparity exlsts when both a county and a municipality within that county qualify for a direct award, but the award amount for the municipality exceeds 150 percent of the county's award amount.
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• The third type of disparity occurs when a county and multiple municipalities within that county are all eligible for direct awards, but the sum of the awards for the individllal municipalities exceeds 400 percent of the 00L1nty's award amollnt
Jurisdictions certified as disparate must identify a fiscal agent that will submit a joint application
for the aggregate eligible allocation to all disparate municipalities. The joint application must determine and specify the award distribution to each unit of local government and the purposes for which the funds will be used. When beginning the JAG application process, a Memorandum of Understanding (MOU) that identifies Which jurisdiction will serve as the applicant or fiscal agent for joint funds must be completed and signed by the Authorized Representative for each
participating jurisdiction. The signed MOU should be attached to the application. For a sample
MOU, go to: www.bi!J,govli=undinq/JAGMOU.pdf.
Cost Sharing or Match Requlram~mt The JAG Program does not require a matcl1.
For additional cost sharing and match information, see the DQ,J Grants F1nar1cial Guide.
Pre-Agreement Costs (also known as Pre-award Costs}
Pre-agreement costs are costs lncurred by the applicant prior to the sta1i date of the period of
performance of the grant award.
OJP does not typically approve pre-agreement costs. An applicant must request and obtain the prior written approval of OJP for any such costs. All such costs incurred prior to award and prior to approval of the costs are incurred at the sole risk of the applicant. (Generally, no applic!lnt should incur project costs before submitting an application requesting federal fLmding for tl1ose
costs.)
Should there be extenuating circumstances that make it appropriate for OJP to consider approving pre-agreement costs, the applicant may contact the point of contact listed on the title page of this solicitation for the requirements concerning written requests for approval. If
approved in advance by OJP, award funds may be used for pre-agreement costs, consistent
with the recipient's approved budget and applicable cost principles. See the section on "Costs Requiring Prior Approval" in the DOJ Grants Financial Guide for rnore information.
Prior Approval, Planning, and Reporting of Conference/lllleeting/Training Costs\
OJP strongly encourages every applicant that proposes to use award funds for any conference-,
meeting-, or training-related activity (or similar event) to review carefully-before submitting an · application--the OJP and OOJ policy and guidance on approva1, planning, and reporting of such events, !lVailable at: b.Jtps:/lwww.ojp~J'.lovlfinancia!guir;l_eJDQ,J/PostawardReguirements/chaoter3, 10a htm.
OJP policy and guidance (1) encourage minimization of conference, meeting, and training costs; (2) require prior written approval (Which may affect project timelines) of most conference, meeting, and training costs for cooperative agreement recipients, as well as some conference, meeting, and training costs for grant recipients; and (3) set cost limits, which include a general prohibition of all food and beverage costs.
Costs Associated with Language Assistance (if applicable)
If an applicant proposes a program or activity that would deliver services or benefits to individuals, the costs of taking reasonable steps to provide meaningful access to those services
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or benefits for individuals with limited En~11ish proficiency may be allowable. Reasonable steps to provide meaningful access to services or benefits may include interpretation or translation services, where appropriate.
For additional information, see the "Civil Rights Compliance'' section under "Ovs,rview of Legal Requirements Genecally Applicable to OJP .Grants and Cooperative Agreements. FY 2017 Award~" in the OJP Funding Resource Center.

C. Eligibility Information
For information on eligibility, see the title page of this solicitation.
Note that, as discussed in more detail below, the certification regarding .compl.iance with 8 U.S.C. § 1373 must be executed and submitted before a unit of local government (other than an Indian tribal government) can make a valid award acceptance. Also, a unit of local government may not receive award funds (and its award will include a condition that withholds funds) until it submits a properly executed "Certifications and Assurances by Chief Executive of · Applicant Government."

D. Application and Submission Information

What an Application Should Include
This section describes in detail what an application should include. An applicant should anticipate that if It fails to submit an application that contains all of the specified elements, it may negatively affect the review of its application; and, should a dec.ision be made to make an award, it may result in the inclusion of award conditions that preclude the recipient from accessing or using award funds until the reciplent satisfies the conditions and OJP makes the funds available.
An applicant may combine the Budget Narratlve and the Budget Detail Worksheet fn one document. If an applicant submits only one budget document, however, it must contain both narrative and detail information. Please review the 'Note on File Names and File Types• under How to AppJY. to be sure applicatio11s are submitted in permitted formats.

OJP strongly recommends that applicants use appropriately descriptive file names (e,g.,

"Program Narrative," "Budget Detail Worksheet and Budget Narrative," "Timelines,"

"Memoranda of Understanding," "Resumes") for all attachments. Also, OJP recommends that

applicants include resumes in a single file.

·

.l.n general, If a unit of local government fails to submit required info1mation or documents, OJP either will return the unit. of local governrnent'oS application in the Grants Management System (GMS) for submission of the missing Information or documents, or
will attach a condition to the award that will withhold award funds until the necessary
information and documents are submitted. (As discussed elsewhere in this solicitation, t.he certification regarding compliance with 8 U.S.C. § 1373-which is set out at Am;i:endlx
!!-will be handled differently. Unless and until that c.ertiflca.Uon ls submitted, the unit of
local government (other than an lnclian tribal government) will be unable to make a valid
acceptance of the award.)

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1. Information to Complete the Application for Federal Assistance (SF-424) The SF-424 is a required standard form used as a cover sheet for submission of preapplicatians, applications, and related information. GMS takes information from the applicant's profile ta populate the fields an this form.
To avoid processing delays, an applicant must include an accurate legal name on its SF424. Current OJP award recipients, when completing the field for "Legal Name," should use the same legal name that appears on the prior year award document, which is also the legal name stored in OJP's financial system. On the SF-424, enter the Legal Name in box 5 and Employer Identification Number (EIN) in box 6 exactly as it appears on the prior year award document. An applicant with a cun·ent, active award(s) must ensure that its GMS profile is current. lf the profile is not current, the applicant should submit a Grant Adjustment Notice updating the informatron on its GMS profile prior to applying under this solicitaUon.
A new applicant entity should enter the Official Legal Name and address of the applicant entity in box 5 and the EiN in box 6 of the SF-424.
Intergovernmental Review: This solicitation ("funding opportunity") Is within the scope of Executive Order 12372, concerning State opportunities to coordinate applicatiom, for federal financial assistance. See 28 C.F.R. Part 30. An applicant may find the n.imes and addresses of Slate Single Points of Contact (SPOCs) at the fallowing website: h!tps:l/www.wtJitS'house.gov/omb/grants spocl. If tl1e State appears on the SPOC list, the applicant must contact the State SPOC to find out about, and comply with, the State's process under E.O. 12372, In completing the SF-424, an applicant whose State appears on the SPOC list is to make the appropriate selection in response to question 19 once the applicant has complied with its State E,O. 12372 process. (An applicant whose State does not appear on the SPOC list should answer question 19 by selecting the response tl~at the
"Program is subject to E.0. 12372 but has not been selected by the State for review.")
Project Abstract Applications should include a high-quality project abstract that summarizes the proposed project in 400 words or less. Project abstracts should be:
Written for a general public audience. Submitted as a separate attachment with "Project Abstract" as part of its file name. • Single-spaced, using a standard 12-point font (Times New Roman) with 1-inch margins. Include applicant name, title of the project, a brief description of the problem to be addressed and the targeted area/population, project goals and objectives, a description of the project strategy, any significant partnerships, and anticipated outcomes. Identify up to 10 project identifiers that would be associated with proposed project activities. The list of identifiers can be found at www.bja.gov/funding/JAGldentifiers,pdf.
3. Program Narrative The following sections should be included as part ofthe program narrative":
.a. Statement of the Problem - Identify the unit of local government's strategy/funding priorittes for the FY 2017 JAG funds, the subgrant award process and timeline, and a
3 For information on subawards (Including the details on proposed subawards that should be Included in the application), see "Budget and Associated Documentation" under Section D. AQplicalion a.no Submission lnfor1nation.
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description of the programs to be funded over the grant period. Units of local government are strongly encouraged to prioritize the funding on evidence-based projects.
b. Project Design and Implementation - Describe the unit of local government's strategic planning process, if any, that guides its priorities and funding strategy. This should include a description of how the local community is engF.1ged in the planning process and the data and analysis utilized to support the plan; it should identify the stslkeholders currently participating in the strategic planning process, the gaps in the needed resource.s for criminal justice ptirposes, and how JAG funds will be coordinated with State and related Justice funds.
c. Capabilities and Competencies - Describe any additional strategic planning/coord1nation efforts in which the units of local government participates with other criminal justice criminal/Juvenile justice agencies in the State..
d. Plan for Collecting the Data Required for this Solicitation's Performance Measures -
OJP will require each successful applicant to submit specific performance measures data as part of its reporting under the award (see "GenP,;:2.JJnfgrmation about Post· federal Award R"ill.Q_rtmg ReouTrementg" ln Section F. Fedf·ra!. Award ,A.d;;,in'c,qtratio'T lnfor1J.1ation). The performance measures correlate to the go.a ls, objectives, and
deliverables identified under "Goa[p, Obiectives, @nd Dr,!liverables" In Set;11911 A Pro9rart1
Description. Post award, recipients will be required to submit quarterly performance
metrics through BJA's Performance Measurement Tool (PMT), located at:
!TI!P...e;llbjaprnt.oir}.gov. The application should describe the applicant's plan for collectlon of all of the performance measures data listed in the JAG Program accountability measures at: htlos://bjapnJLoip.qov/help/iagdocs html.
BJA does not require appllcants to submit performance me1;1sures data with their application. Performance measures are included as an alert that BJA will re.quire successful applicants to submit specific data as part of their reporting requirements. For the application, applicants should indicate an understanding of these requirements and discuss how they will gather the reql1ired data, should they receive funding.
Note on Project Evaluations An applicant that proposes to use award funds through this solicitation to conduct project evaluations should be aware that certain project evaluations (such as systematic Investigations designed to develop or contribute to generalizable knowledge) may constitute "research" for purposes of applicable DOJ human subjects protection regulations. However, projec! evaluations that are intended only to generate internal improvement!! to a program or service, or are conducted only to meet OJ P's performance measure data reporting requirements, likely do not constitute "research," Each applicant should provide sufficient information for OJP to determine whetl1er the pa1iicular project it proposes would either intentionally or unintentionally collect and/or use information in such a way that it meets the DOJ regulatory definition of research that appears at 28 C.F.R. Part 46 ("Protection of Human Subject$").
Research, for the purposes of human subjects protection for OJP-funded programs. is defined as "a systematic investigation, including research development, testing and ·
evaluation, designed to develop or contribute to generalizable knowledge." 28 C.F.R.
46.102(d).
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For additional information on determining whether a proposed activity would constitute
research for purposes of human subjects protection, applicants should consult the decision tree in the "Research and the Protection of HL!man Subjects" section of !he "Requirements related to Research" web page of the "Overview of Legal Requ1rerri.ents Gene1·,;i[y t,i;iplicable to OJP Graf]\§J;lilg__Qg.QQQrative Agrn:,:,ments. FY 2017" available through the OJP Fu11dlng Resource Center. Every prospective applicant whose application may propose
a research or statistical component also should review the "Data Privacy and Confidentiality
Requirements" section on that web page.

4. Budget and Associated Documentation

(a) Budget Detail Worksheet
A sample Budget Deteiit Worksheet can be found at www.oip.goy/funrJJmffiJ2!2ly/Resources/BudgeJDetailWork$heet.pdf. An applicant that submits its budget in a different formal should use the budget categories listed in the sample budget worksheet. The Budget Detail Worksheet should break out costs by year.

For questions pertaining to budget and examples of allowable and unallowable costs, see the DOJ Grnnts Fi['§.1.f'!Clal Guide.

(b) Budget Narrative

The Budget Narrative should thoroughly and clearly describe every category of expense

listed in the proposed Budget Detail Worksheet. OJP

proposed budgets to be

complete, cost effective, and allowable (e.g., reasonable, allocable, and necessary for

project activities). This narrative should include a full description of all costs, including

administrative costs (if applicable).

An applicant should demonstrate in its. Budget Narrative how it will maximize cost effectiveness of award expenditl1res. Budget narratives should generally describe cost effectiveness in relation to potential alternatives and the goals of the project. For example, a budget narrative should detail why planned in-person meetings are necessary, or how !echnoh:,gy and collaboration with outside organiz:alions could be used to reduce costs, without compromising quality.

The Budget Narrative should be mathematically sound and correspond clearly with the information and figures provided in the Budget Detail Worksheet. The narrative should explain how the applicant estimated and calculated all costs, and how those costs are necessary to the completion of the proposed project. The narrative may include tables for clarification purposes, but need not be in a spreadsheet format. As with the Budget Detail Worksheet, the Budget Narrative should describe costs by year.

(cl Information on Proposed Subawards (if any), as well as on Proposed Procurement
Contracts (if any)
Applicants for OJP awards typically may propose to make "subawards." Applicants also may propose to enter into procurement "contracts" under the award.

Whether-for purposes of federal grants administrative requirements-a particular agreement between a recipient and a third party will be considered a "subaward" or
instead considered a procurement "contract" under the award is determined by federal
rules and applicable OJP guidance. It Is an important distinction, in part because the
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federal administrative rules and requirements that apply to "subawards" and procurement "contracts" under awards differ markedly.

In general, the central question is the relationship between what the third party Will do under its agreement with the recipient and what the recipient has committed (to OJP) to do under its award to further a public purpose (e.g., services the recipient will provide, products it will develop or modify. research or evaluation It will c011duct). If a third party will provide some of the services the recipient has committed (to OJP) to provide, will develop or modify all or part of a product the recipient has committed (to OJP) to develop or modify, or conduct part of the research or evaluation the recipient has committed (ta OJP) ta condc1ct, OJP will consider the agreement with the third party a subaward for purposes of federal grants administrative requirements.

This Will be true even if the recipient, for internal or other non-federal purposes, labels or
treats its agreement as a procurement, a contnsict, or a procurement contract. Neither the title nor the structure of an agreement determines whether the agreement-for purposes of federal gr1mts administnitive requirements-is a "subaward" or is Instead a procurement "contract" under an award.

Additional guidance on the circumstances under which (for purposes of federal grants
administrative requirements) an agreement constitutes a subaward as opposed to a
procurement contract under an award is available (along with other resources) on the
OJP Part 200 U1~!f.Qrr11 f:i.equireme11ts web page.

(1) Information on proposed subawards and required certification regarding 8 U.S.C. § 1373 from certain subreciplents

General requirement for federal authorization ofany subaward; statutory authorizations of .subawards under the JAG Program statute. Generally, a recipient of an OJP award may not make subawards ("subgrants"J unless the recipient has specific federal authorization ta do so. Unless an applicable statute or
DOJ regulation specifically authorizes (or requires) particular subawards, a recipient must have authorization from OJP before it may make a subaward.

JAG subawards are required or specifically authorized by statute (see 42

U.S,C. § 3751(a>

U.S.C. § 3755) do not require prior approval ta

authorize 1mbawards. This includes subawards made by uni'ts of local

government under the JAG Program.

A particular subaward may be authorized by OJP because the recipient included a sufficiently detailed description and justification of the proposed subaward in the application as approved by OJP. If, however, a particular subaward is not authorized by federal statute or regulation and is not sufficiently described and justified in the application as approved by OJP, the recipient will be required, post award, to request and obtain written authorization from OJP before it may make the subaward.

If an applicant proposes to make one or more subawards to carry out the federal award and program, and those subawards are not specifically aut11orized (or required) by statute or regulation, the applicant should: (1) identify (if known) the proposed subrecipient(s), (2) describe in detail what each subrecipient will do to carry out the federal award and federal program, and (3) provide a jU'Stiflcation for the
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subaward(s), with details on pertinent matters such as special qualifications and areas of expertise. Pertinent information on subawards should appear not only in the Program Narrative but also in the Budget Detail Worksheet and budget narrative.
NEW Required certification .regarding 8 U.S.C. § 1373 from any proposed subrecipient that Is a unit of locaf government or "public" Institution of higher education. Before a unit of local government may subaward FY 2017 award funds to another unit of local government or to a public institution of higher education, it will be required (by award condition) to obtain a properly executed certification regarding compliance with 8 U.S.C. § 1373 from the proposed subrecipient. (This requirement regarding 8 U.S.C. § 1373 will not apply to subawards to .Indian tribes). The specific certification the unit of local government must require from another unit of local government will vary somewhat from the specific certification it must require from a public Institution of higher ecluoation. The forms will be posted and available for download at: https:/loip.gov/funding1Exploc.etSampleCertifications-8USC1373.htm.
(2) Information on proposed procurement contracts (with specific justification for proposed noncompetitive contracts over $150,000)
Unlike a recipient contempls1ting a subaward, a recipient of an OJP award generally does not need specific prior federal authorization to enter into an agreem1ent that~ for purposes. of federal grants administrative requirements-is considered a procurement contract, provided that (1) the recipient uses its own documented procurement procedures and (2) those procedures conform to applicable federal law, including the Procurement Standards of the (DOJ) Part 200 Uniform Requirements (as set out at 2 C.F.R. 200.317 • 200.326). The Budget Detail Worksheet and budget narrative should klentify proposed procurement contracts, (As discussed above, subawards must be Identified and described separately from procurement contracts.)
The Procurement Standards in the (DOJ) Part 200 Unlform Requirements, however, reflect a general expectation that agreements that (for purposes of federal grants administrative requirements) constitute procurement "contracts" under awards will be entered into on the .basis of full and open competition. If a proposed procurement contract would exceed the stmplified acquisition threshold-currently, $150,000-a recipient of an OJP award may not proceed without competition, unless and until the recipient receives specific advance authorization from OJP to use a non-competitive approach for the procurement.
An appltcant that (at the time of its application) intends-without competition-to enter into a procurement contract that would exceed $150,000 should include a detailed justification that explains ta OJP why, in the particular circumstances, it is appropriate to proceed without competition. Various considerations that may be pertinent to the justification are outlined in the DOJ Gn,1nts Financial Guide.
(d} Pre-Agreement Costs For information on pre-agreement costs, see ,Section B Federal Award lnf9rmaJj(rn.
5. Indirect Cost Rate Agreement (if f~pplicable) Indirect costs may be charged to an award only if:
(a) The recipient has a current (that is, unexpired), federally approved indirect cost rate; or
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(b) The recipient is eligible to use, and elects to use, the "de minimis" indirect cost rate described in the (DOJ) Part 200 Uniform Requirements, as set out at 2 C.F.R. 200.414(f).

Note: This rule does not elimrnate or alter the JAG-specific restriction in federal law that charges for administrative costs may not exceed 10 percent of the award amount, regardless of the approved indirect cost rate.

An applicant with a current (Iha! is, qnexpired) federally approved indirect cost rate is to attach a copy of the indirect cost rate agreement to the application. An applicant that does not have a current federally approved rate may request one through its cognizant federal agency, which will review all documentation and approve a rate for the applicant entity, or, if the applicant's accounting system permits, applicants may propose to allocate costs ln the
direct cost categories.

For assistance with identifying the appropriate cognizant federal agency for indirect costs,

please contact the OCFO Customer Service Center at 1-800-458-0786 or at

ask.ocfotal1,sd0Lg_Q1'.. If DOJ is the cognizant federal agency, applicants may obtain

information needed to submit an indirect cost rate proposal at:

·

www. oj p_,J;lQV.lfunding/.8.Qpl y/Reso urces/1 n.dlrectCos.tsc odf.

Certain OJP recipients have the option of electing to use the "de minimis" indirect coS't rate. An applicant that is eligible to use the "de mlnimis" rate that wishes to use the "de minimis" rate should attach written documentation to the application that advises OJP of both: (1) the applicant's eligibility to use the "de minimis" rate, and (2) its election to do so. If an eligible applicant elects the "de minimis" rate, costs must be consistently charged a.s either indirect or direct costs, but may not be double charged or inconsistently charged as both.. The "de minimis" rate may no longer be used once an approved federally-negotiated indirect cost rate is in place. (No entity that ever has had a federally approved negotiated indirect cost
rate is eligible to use the "de minimis" rate.)

6. Tribal Authorizing Resolution (if applieabfe} An applicant thal proposes to provide direct services or assistance to residents on tribal lands should Include in its application a resolution, a letter, affidavit, or other documentation, as appropriate, that demonstrates (as a legal matter) that the applicant has the requisite
authorization from the tribe(s} to implement the proposed project on tribal lands.

OJP will not deny an application for an FY 20'17 award for failure to submit such tribal authorizing resolution (or other appropriate documentation) by the application deadline, but a unit of local government will not receive award funds (and its award will include a condition that withholds funds) until it .submits the appropriate documentation.

7. Financial Management and System of Intern.al Controls Questionnaire (including
applicant disclosure of high-risk status} Every unit of local government is to complete the OJP Financial Manaaement and System of
Internal Controls_QuesJionnaire as part of its application. In accordance with the Part 200 Uniform Requirements as set out at 2 C.F.R. 200.205, federal agencies mus\ have in place a framework for evaluating the risks posed by applicants before they receive a federal
award.

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8. Applicant Disclosure of High Risk Status Applicants that are currently designated high risk by another federal grant making agency must disclose that status. For purposes of this disclosure, high risk includes any status under which a federal awar<llng agency provides additional oversight due to the applicant's past performance, or other programmatic or financial concerns with the applicant. If an applicant is designated high risk by another federal awarding agency, the applicant must provide the fallowing Information:
• The federal agency that currently designated the applicant as high risk Date the applicant was designated high risk The high risk point of contact at that federal awardil1g agency (name, phone number, and email address).
• Reasons for the high risk status, as set out by the federal awarding agency
OJP seeks this information to help ensure appropriate federal oversight of OJP awards. An
applicant that is considered "hlgh risk" by another federal awarding agency is not
automatically disqualified from receiving an OJP award. OJP may, however, consider the information in award decisions, and may impose additi.onal OJP oversight of any award
under this solicitation (including through the conditions that accompany the award document).
9. Disclosure of Lobbying Activities An applicant that expends any funds for lobbying activities J.s to provide all of the information requested on fue form Disclosure of Lobbying Activities (SF.::b!J.1.
10. Certifications and Assurances by the Chief Executive of tl'!e Applicant Government A JAG application is not complete, and a unit of local government may not receive award funds, unless the chief executive of U,e applicant unit of local government (e.g., the mayor) properly executes, 1md the unit of local government SL1bmits, the "Certifications and Assurances by the Chief Executive of the Applicant Government" attached to this solicitation as 6Qpet,dix.J.
OJP will not deny an. application for an FY 2017 award for failure to submit these
"Certifications and Assurances by the Chief Executive of the Applicant Government" by the application deadline, but a unit of local government will not receive award funds (and its award will include a condition that withholds funds) until it submits these certifications and assurances, properly executed by the chief executive of the unit of local government (e.g., the mayor).
11. Certification of Com!)liance with 8 U.S.C, § 1373 by the Chief Legal Offfc,ar the Applicant Govemrnent The chief legal officer of an applicant unit of local government (e.g., the General Counsel) is to carefully review the 'State or local Government: FY 2017 Certification of Compliance with B U.S.C. § 1373" that is attached as f,,ppendix 11 to this solicitation. If the chief legal officer determines that he or she may execute the certification, the unit of local government is to submit the certification as part of its appllcation. (Note: this requirement does not apply to Indian tribal governments.)
As discussed further below, a unit of local government (other than an Indian tribal government) applicant will be unable lo make a valid award acceptance of an FY 2017 JAG
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award unless and until a properly executed certification by its chief legal officer is received by OJP on or before tl1e day the unit of local government Sllbmits an executed award · document.

12. Additional Attachments

(a) Applicant Disclosure of Pending Applications
Each applicant is to disclose whether it has (or is proposed as a subrecipient under) any pending applications for federally funded grants or cooperative agreements that (1} include requests for funding to support the same project being proposed in the application under this solicitation apd (2) would cover identical cost items outlined in the budget submitted to OJP as part of the application under !his solicitation. The applicant is to disclose applications made directly lo federal awarding agencies, and also
applications for subawards of federal funds (e.g.,. applications to State agencies that will
subaward ("subgrant") federal funds).

OJP seeks this information lo help avoid any inappropriate duplication of funding. Leveraging mL1ltiple funding sources in a complementi,ry manner to implement comprehensive programs or projects is encouraged and is not seen as inappropriate duplication.

Each applicant that has one or more pending applications as described above Is to provide the folkiwlng Information about pending applications submitted within the last 12 months:

, The federal or State funding agency , The solicitation name/project name
The point of contact information at the applicable federal or State funding agency

Federal or State Funding Agency

Solicitation Name/Project
Name

Name/Phone/Email for Point of Contact at Federal or State Funding Agency

DOJ/Oflice of Community Oriented Policing Services (COPSl
Health & Human Services/ Substance Abuse and Mental Health Services Administration

COPS Hiring Program

Jane Ooe, 202/000-0000; jane.doe@usdoj.gov

Drug-Free Communities Mentoring Program/ North County Youth Men1oring Pronram

John Doe, 202/000-0000; john.doe@hhs.gov

Each applicant should include the table as a separate attachment to its application. The file should be named "Disclosure of Pending Applications.'' The applicant Legal Name on the application must match the entity named on the disclosure al pending applications statement.

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Any applicant that does not have any pending applications as described above is to submit, as a separate attachment, a statement to this effect: "[Applicant Name on SF424] does not have (and is not proposed as a subrecipient under) any pending
applications submitted within the last 12 months for federally funded grants or
cooperative agreements (or for subawar·ds under federal grants or cooperative agreements) that request funding to support the same project being proposed in this application to OJP and that would cover identical cost items outlined in the budget submitted as part of this applfcation."
(b) Research and Evaluation Independence and Integrity (if applicable)
If an application involves research (including research and development) and/or evaluation, the appllcant must demonstrate research/evaluation independence and integrity, including appropriate safeguards, before it may receive award funds. The applicant must demonstrate Independence and integrity regarding both this proposed research .and/or evaluation, and any current or prior related projects.
Each application should include an attachrnent that addresses both i. and ii. below.
i. For purposes of this solicitation, each applicant is to document researcl1 and eve1luation independence and integrity by including one of the following two items:
a. A specific assurance that the applicant has reviewed its application to identify any actual or potential apparent conflicts of interest (Including through review of pertinent information on the principal investigator, any co-pr'incipal investigators, and any subrecipients), and that the applican\ has identified no such conflicts of in!erest-wl1ether personal or financial or organizational (including on the part of the applicant enilty or on the part of staff, lnvestigators, or subrecipients)-that could affect the independence or integrity of the research, including the design, conduct, and reporting of the research.
OR
b. A specific description of actual or potential apparent conflicts of interest that the applicant has identified-including through review of pertinent inJormatlon on the principal investigator, any co-prlnclpal investigators, and any subrecipients-that could affect the independence or integrity of the research, Including the design, conduct, or reporting of the research. These conflicts may be personal (e.g., on the part of investig.ators or other staff), financial, or organizational (related to the applicant or any subreciplent entity). Some examples of potential invesfigator (or other personal) conflict situations are those _in which an investigator would be in a position to evaluate a spouse's work product (actual conflict), or an investigator would be in a position to evaluate the work of a former or current colleague (potential apparent conflict). With regard to potential organizational conflicts of interest, as one example, generally an organization would not be given an award to evaluate a project, if that organization had itself provided substantial prior technical assistance to that specific project or a location implementing the project (whether funded by OJP or other sources), because tt1e organization in such an
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instance might appear to be evaluating the effectiveness of its own prior work. The key is whether a reasonable person understanding all of the facts would be able to have confidence that the results of any research or evaluation project are objective and reliable. Any outside personal or financial interest that casts doubt on that objectivity and reliability of an evaluation or research product is a problem and must be disclosed.
ii. In addition, for purposes of this solicitatron, each applicant is tp address possible
mitigation of research integrity concerns by including, at a minimum, one of the following two items:
a. If an applicant reasonably believes that no actual or potential apparent
conflicts of interest (personal, financial, or organizational) exist, then the applicant should provide a brief narrative explanation of how and why I! reached that conclusion. The applicant also is to include an explanation of the specific processes and procedures that the applicant has in place, or
will put in place, to identify and prevent (or, at the very least, mitigate) sny
such confllcts of interest pertinent to the funded project during the period of performance. Documentation that may be helpful in this regard may include organizational codes of ethics/conduct and policies regarding organizational, personal, and financial conflicts of interest. There is no guarantee that the plan, if any, will be accepted as proposed.
OR
b. If the applicant has identified actual or potential apparent conflicts of
interest (personal, financial, or organizational) that could affect the
independence and integrity of the research, including the design, conduct, or reporting of I.he research, the applicant is to provide a specific and robust mitigation plan to addre$S each of those conflicts. At a minimum, the applicant is expected to explain the specific processes and procedure,.. that the applicant has in place, or will put in place, to identlfy and eliminate (or, at the very least, mitigate) any such conflicts of interest pertinent to the fltnded project during thee period of performance.
Documentation that may be helpful in this regard may include organizational codes of ethics/conduct and policies regarding
organizational, personal, and financial conflicts of interest. There is no guarantee that the plan, If any, will be accepted as proposed.
OJP will assess research and evaluation independence and integrity based on considerations such as the adequacy of the applicant's efforts to identify factors that could affect tl1e objectivity or integrity of the proposed staff and/or the applicant entity (and any subrecipients) in carrying out the research, development, or evaluation activity; and the adequacy of the applicant's existing or proposed remedies to control any such factors.
(c) Local Governing Body Review Applicants must submit information via the Certification and Assurances by the Chief Executive (See Appendix I) which documents that the JAG application was made
available for review by the governing body of the unit of local government, or to an organization designated by that governing body, for a period that was not less than 30
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days before the application was submitted to BJA. The same Chief Executive Certification will also specify that an opportunity to comment on this application was provided to citizens prior to the application submission to the extent applicable law or established procedures make such opportunity available. In the past, this has been accomplished via submission of specific review dates; now OJP will only accept a chief executive's certification to attest lo these facts. Units of local government may continue to submit actual dates of review should they wish to do so, in addition to the submission of the Chief Executive Certification.

How to Apply

An applicant must submit its application through the Gr::mts Mariagement System (GMSl, which

provides support forthe application, award, and management of awards at OJP. Each applicant

entity must register In GMS for each specific funding opportunity. Although the registration

and submission deadlines are the s1;1me, OJP urges each applicant entity to register promptly,

especially if this is the first time the applicanl is using the system. Fln.d complete instructions on

how to register and submit an application in GMS at www.oip.gov/gmsc;bt/. An applicant that

experiences technical difficulties during this process should. email GMS,Helpt:lesk@usdoi.gov or

call 888-549-9901 (option 3),.24 hours every day,. including during federal holidays. OJP

recommends that each apj'.)licant regis.ter pron1ptly to prevent delays in submitting an

application package by the deadline.

·

Note on FIie Types: GMS does not accept executable file types as application attachments. These disa.llowed file types include, but are not limited to, the following extensions: 11.eom/ !I.bat" 11 .exe,"' 0 .vbe.1' \cfg, 1111.dar1 0 .dbt 11 .dbf/ ".dll/' 11 .ini«11 l'.log/' 11 .ora/1 11 .sys/ and ''.zip."
Every applicant entity mvst comply with all applicable System for Award Management (SAM) and unique entity identifier (currently, a Data Universal Numbering System [DUNS] number) requirements. If an applicant entity has not fully complied with applicable SAM and unique identifier requirements by the time OJP makes award decisions, OJP may determine that the applicant is not qualified to receive an award and may use that determination as a basis for making the award to a different applicant.

All applicants should complete the following steps:

1. Acquire a unique entity identifier (DUNS number). In 9eneral, the Office of Management and Budget requires every applicant for a federal award (other than an individual) to include a "unique entity identifier" in e.!lch appOcation, Including an application for a supplemental award. Currently, a DUNS number is tile required unique entity identifier.

A DUNS number is a unique nine-digit identification number provided by the commercial company Dun and Bradstreet. This unique entity identifier is used for tracking purposes, and to validate addrass and point o.f contact information for applicants, recipients, and subreclpients. It will be used throughout the life cycle of an OJP award. Obtaining a DUNS number is a free, one-time activity. Call Dun and Bradstreet at 866-705-5711 to obtain a DUNS number or apply online at ~vww.dnb.com. A DUNS number is usually received within 1-2 business days.

2. Acquire registration with the SAM. SAM is the repository for. certain standard information about federal financial assistance applicants, recipients, and subrecipients. All applicants for OJP awards (other than individuals) must maintain current registrations in the SAM database.

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Each applicant must update or renew its SAIi/i registration at least annually to maintain an active status. SAM registration and renewal can take as long as 10 business days to complete.
Information about SAM registration procedures can be accessed at https://www.sam.gov/..
3. Acquire a GMS usel'name and password. New users must create a GMS profile by
selecting the "First Time User" link under the eign-in box of the GMS home page. For lllore information on how to register in GMS, go to wv~w.oj12.aov/gmscbt. Previously registered applicants should ensure, prior to applying, that the user profile Information is up-to-date in GMS (including, but not limited to, address, legat name of agency and authorized representative) as this information is populated in any new application.
4. Verify the SAM (formerly CCR) registration In GMS. OJP requires each applicant to verify
its SAM registration in GM$. Once logged into GMS, click the "CCR Claim" link on the left. side
of the default screen. Click the submit button to verify the SAM {formerly CCR) registration.
5. Search for the funding opportunity on GMS. After logging into GMS or completing the
GMS profile for username and password, go to the "Funding Opportunities" llhl< on the left side of the page. Select BJA and FY 17 Edward Byrne Memorial Local Justice Assistance Grant
(JAG) Program.
G. Register by selecting the "Apply Online" button associated with the funding opportunity title. The search results fmm step 5 will display the "funding oppo1tunity" (soilcitation) title along with the registration and application deadlines for this solicitation. Select
the "Apply Online" button in the "Action" column to register for this solicitation and create an
application in the system. ·
7. Fo.llow the directions in GMS to submit an application consistent with this
solicitation. Once the application is submitt.ed, GMS will display a confirmation screen stating the submission was auccessful. lmpgrtant: In soma instances, applicants must wait for GMS approval before submitting an application. OJP urges each applicant to submit its application at least 72 hours prior to the application due date.
Note; Appllcation Versions
If an applicant submits multiple versions of the same application, OJP will review only the most recent system-validated version submitted.
Experiencing Unforeseen GMS Technical Issues
An applicant that experiences unforeseen GMS technical issues beyond its control that prevent
ft from submitting its application by the deadline may contact the GMS H1:lp Desk or the SAM
Help Desk (Federal Service Desk) to report the technical issue and receive a tracking number.
The applicant is expected to emall the NCJRS Response Center identified in the Contact
Information section on the title page within 24 hours after the application deadline to request approval to submit its application after the deadline. The applicant's email rnust describe the technical difficulties, and must include a timeline of the applicant's submission efforts, the complete grant application, the applicant's DUNS number, and any GMS Help desk or SAM tracking number(s).
Note: OJP does not automatically approve requests to submit a late application. After OJP reviews the applicant's request, and contacts the GMS Help Desk to verify the reported technical issues, OJP will inform the applicant whether the request to submit a late application
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has been approved or denied. If OJP determines that the untimely application submission was due to the applicant's failure to follow all required procedures, OJP will deny the applicant's request to submit its application.
The following conditions generally are insufficient to justify late submissions to OJP solicitations:
Failure to register in SAM or GMS in sufficient time (SAM registration and renewal can
take as long as 10 business days to complete.)
Failure to follow GIVIS instructions on how to register and apply as posted on the GMS website Failure to follow each instruction in the OJP solicitation • Technical issues with the applicant's computer or information technology envlronment such as issues wlth firewalls
E. Application Review Information
Review Process OJP is committed to ensuring a fair and open process for making awards. BJA reviews the application to make sure that the information presented is reasonable, uncierstandable, measurable, and achievable, as well as conSi$tent with the solicitation. BJA wifl also review applications to help ensure that JAG program-statute requirements have been met.
Pursuant to the (DOJ) Part 200 Uniform Requirements. before awards are made, OJP also
reviews information related to the degree of risk posed by applicants. Among other things, to help assess whether ah applicant that has one or more prior federal awards has a satisfactory record with respect to performance, integrity, and business ethics, OJP checks whether the applicant is listed in SAM as ex.eluded from receivlng a federal award. In addition, if OJP
anticipates that an award will exceed $150,000 in federal funds, OJP also must review and
consider any informatlon about the applicant that appears in the non-public segment of the integrity and performance system accessible through SAM (currently, the Federal Awardee Performance and Integrity Information System; "FAPIIS'\
Important note on FAPIIS: An applicant, at its option, may review and cornment on any information about itself that currently appears in FAPIIS and was entered by a federal awarding agency. OJP will consider any such comments by the appllcan!, in addition to the other information in FAPIIS, in its assessment of the risk posed by the applicant.
The evaluation of risks goes beyond information in SAM, however. OJP itself has in place a framework for evaluating risks posed by applicants. OJP takes into account information pertinent to matters such as~
1. Applicant financial stability and fiscal integrity 2. Quality of the management systems of the applicant, and the applicant's ability to meet
prescribed management standards, Including those outlined in the DOJ Grants Financial Guide 3. Applicant's history of performance under OJP and other DOJ awards (including compliance with reporting requirements and award conditions), as well as awards from other federal agencies
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4. Reports and findings from audits of the applicant, including audits under the (DOJ) Pa1i 200 Uniform Requirements
5. Applicant's ability to comply with statutory and regulatory requirements, and to effectively implement other award requirements
Absent explicit statutory authorization or written delegation of authority to the contrary, the Assistant Attorney General will make all final award decisions.
F. Federal Award Administration Information
Federal Award Notices OJP expects to issue award notifications by September 30, 2017, OJP sends award notificatrons by email through GMS to the individuals listed in the application as the point of contact and the authorizing official. The email notification includes detailed instructions on how to access and view the award documents, and steps to take in GMS to startthe award acceptance process, GMS automatically issues the notifications at 9:00 p.m. eastern time on the award date.
NOTE: In order validly to accept an award under the FY 2017 JAG Program, a unit of local
government (other than an Indian tribal government) must submit to GMS the certification by its chief legal officer regarding compliance with 8 U.S.C, § 1373, executed using the form that appears in 6gpendix II. (The form also may be downloaded at ht!ps://-9lJ;lgov/fundioo/Explorel.SampleCe1tifications..SUSC1373.htm.) Unless the executed certification either (i) is submitted to OJP together with the signed award document or (2) is
uploaded in GMS no later than the day the signed award document is submitted, OJP will
reject as invalid any submission by a unit of local government (other than an Indian tribal government) that purports to accept an award under this solicitation.
Rejection of an initial submission as an invalid award acceptance is not a denial of the award. Consistent with award requirements, once the unit of local government does submit the
necessary certification regarding 8 U.S.C. § 1373, the unit of local government will be permitted
to submit an award document executed by the unit of local government on or after the date of that certificatron.
Also, in order for a unit of local government applicant validly to accept an award under the FY
2017 JAG Program, an individual with the necessary authority to bind the applicant wm be
required to log in; execute a set of legal certifications and a set of legal assurances; designate a
financial point of contact; thorOL1ghly review the award, including all award conditions; and sign
and accept the award. The award acceptance process requires physical signature of the award document by the authorized representative and the scanning of the fully executed award
document (along with the required certification regarding 8 U.S.C. § 1373, if not already
uploaded in GMS) to O,JP.
Statutory and Regulatory Requirements; Award Conditions If selected for funding, in addition to implementing the funded project consistent with the OJPapproved application, the recipient must comply with all award requirements (including al1 award conditions), as well as all applicable requirements of federal statutes and regulations (including those referred to in assur1;1nces and certifications executed as part of the application ar in
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connection with award acceptance, and administrative and policy requirements set by statute or

regulation).

. ·

·

OJ P strongly encourages prospective applicants to review information on post-award legal requirements generally applicable to FY 2017 OJP awards and common OJP award conditions prior to submitting an application.

Applicants should consult the "Overview of Legal Rfilluirements Generally Applicable to OJP Grants and Copperative Aqreeme_rts - FY 2017 Awards," available in the OJP Funding
.B..esource Cents!L In addition, applicants should examine the following two legal documents, as
each successful applicant must execute both documents in GMS before it may receive any
award funds.

• Certifiqitions Reg2 rding LobQ.Ylni;i;_Qebarment. Suspension and Qiher R_esponsibility Mattr:irs: and Drug-Free Workplace Reguireme_nt~

• · OJ P Certified Standard Assurances (attached to this solicltatton as L',ppendix IV)

The web pages accessible through the "Ovefl/iew ofleqal Reguiremants Generally Applicable \g_QJP ~r.ants and Cooperative Agr:E?ements - F_Y 2017 Awartj,;1" are intended to give applicants for OJP awards a general overview of important statutes, regulations, and award conditions that apply to many (or in some cases, all) O.IP grants and cooperative agreements awarded in FY 2017. Individual OJP awards typically also will include additional award conditions. Those additional conditions may relate to the particular statute, program, or solicitation under which the award is made; to the substance of the funded application; to the recipient's performance under other federal awards; to the recipient's legal status (e.g., as a for-profit entity); or to other
pertinent considerations.
Individual FY 2017 JAG awards will include two new express conditions t11at, with respect to the 'program or activity" that would be funded by the FY 2017 award, are designed to ensure that States and units of local government that receive funds from the FY 2017 JAG award.: (1) permit p1mmnnel of the U.S. Department of Homeland Security (OHS) to access any correctional or detention facility in order to meet with an alien (or an individual believed to be an alien) and inquire as to his or her right to be or remain in the United States and (2) provide at least 48 hours' advance notice to OHS regarding the scheduled release date and time of an alien in the jurisdiction's custody when DHS requests such notice in order to take custody of the alien pursuant to the Immigration and Nationality Act.

Compliance with the requirements of the two foregoing new award conditions will be an authorized and priority purpose of the award. The reasonable costs (to the extent not reimbursed under any other federal program) of developing and putting Into place statutes, rules, regulations. policies, or practices as required by these conditions, and to honor any duly authorized requests from OHS that is encompassed by ihese conditions, will be allowable costs
under the award.

General Information about Post-Federal Award Reporting Requirements A unit of local government recipient of an award under this solicitation will be required to submit
the following reports and data:

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Required reports. Recipients typically must submit quarterly financial status reports, semiannual progress reports, final financial and progress reports, and, if applicable, an annual audit report in accordance with the (DOJ) Part 200 Uniform Requirements or specific award conditions. Future awards and fund drawdowns may be withheld if repo11s are delinquent. (In appropriate cases, OJP may require additional reports.)
Awards that exceed $500,000 will include an additional condition that, under specific circumstances, will req1Jire the recipient to report (to FAPIIS) information on civil, criminal, and administrative proceedings connected with (or connected to the performance of) either the OJP award or any other grant, cooperative agreement, or procurement contract from the federal government. Additional information on this reporting requirement appears in the text of the award condition posted on the OJP website at: https;//oip.gov/fundl119/FAPIIS.l1tn1
Data on performance measures. In addition to required reports, each recipient of an award under this soltcitation also must provide data that measure the results of the work done under the award. To demonstrate program progress and .success, as well as to assist POJ with fulfilling its responsibilities under GPRA and the GPRA Modernization Act of 2D10, OJP will require Statia recipients to provide accountability metrics data. Accountability metrics data mus! be submitted through BJA's Performance Measurement Tool (PMT), available at httgs://bjap.mtgjp.qov. The accountability measures are available at:
htlps://bjapmtoi12,&ov/help/jagdocs.htmL (Note that if a law enforcement agency receives
JAG funds from a State, the State must submit quarterly accountability metrics data related to training that officers have received on use of force, racial and ethnic bias, de-escalation of conflict, and constructive engagement with the pLiblic.)
OJP may restrict access to award funds if a recip.ient of an OJP award tails to report required performance measures data in a timely manner.
G. Federal Awarding Agency Contact(s)
For O,JP contact(s), see the tit.le page of this solicitation.
For contact information for GMS, see the title page.
H. Other Information
Freedom of Information Act and Privacy Act (5 U.S.C. § 552 and Ii U.S.C. § 552a)
All applications submitted to OJP (including all attachments to applica.tlons) are subject to the federal Freedom of Information Act (FOIA) and to the Privacy Act By law, DOJ may withhold information that is responsive to a request pursuant to FOIA if DOJ determines that the responsive information either is protected under the Privacy Act or falls within the scope of one of nine statutory exemptions under FOIA DOJ cannot agree In advance of a request pursuant to FOIA not to release some or all portions of an application.
In its review of records that are responsive to a FOIA request, OJP will withhold information in those records that plainly falls within the scope of the Privacy Act or one of the statutory exemptions under FOIA, (Some examples include certain types of information in budgets, and names and contact Information for project staff other than certain key personnel.) In appropriate
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circumstances, OJP will request the views of the applicant/recipient that submitted a responsive document. For example, if OJP receives a request pursuant to FOIA for an application submitted by a nonprofit or for-profit organization or an institution of higher education, or for an application that invo.lves research, OJP typically will contact the applicant/recipient that submitted the application and ask it to identify-quite precisely-any particular information in the application that applicant/recipient believes falls under a FOIA exemption, the specific exemption it believes applies, and why. After considering the submission by the applicant/recipient, OJP makes an independent assessment regarding withholding information. OJP gener<1lly follows a similar process for requests pursuant to FOIA for applications that may contain law-enforcement sensitive information. Provide Feedback to OJP To assist OJP in improving its application and award processes, OJP encourages applicants to provide feedback on this solicitation, the application submission process, and/or the application review process. Provide feedback to OJPSolicitGtionFeedback@9sdoj.gov. IMPORTANT: This email is for feedback and sug:gestions only. OJP does not rsply to messages it receives In this mailbox. A prospective applicant that has specific questions on any program or technical aspect of the solicitation must use the appropriate telephone number or email listed on the front of this solicitation document to obtain information. These contacts are provided to help ensure that prospective applicants can directly reach an individual who can .address, specific questions in a timely manner.
If you are interested in being a reviewer tor other OJP grant applications, please email your
resume to g_ippeerreview@lmsolas com. (Do not send your resume to the OJP Solicitation Feedback email account.) Note: Neither you nor anyone else from your organization or entity can be a peer reviewer in a competition in which you or your organization/entity has submitted an application.
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Application Checklist

Edward Byrne Memorial. Justice As.sistance Grant (JAG) Program: FY 2017 Local Solicitation

This application checklist has been created as an aid in developing an application.

What an Applicant Should Do:

Prior to Registering in GMS: _ _ Acquire a DUNS Number _ _ Acquire or renew registration with SAM

(see page 27) (see page 27)

To Register with GMS:
_ _ For new users, acquire a GMS usemame and password'

{see page 27)

_ _ For existing users, checl< GMS username and password• to ensure account access (see page 27)

_ _ Verify SAM registration in GMS

(see page 27)

_ _ Search for correct funding opportunity fn GMS

(see page 27)

_ _ Select correct funding opportunity in GMS

(s.ee page 27)

_ _ Register by selecting the "Apply Online" button associated with tbe funding opportunity

title

(see page 27)

_ _ Read OJP pojicy and guidance on conference approval, µlanning, and reporting

available at Qjp~Q_\11-financialguidelDOJ/PostawardRequirementslchapter3. ·10a.rrtm (see page 14)

_ _ If experiencing technical difficultles in GM8, contact the NCJR8 Response Center (see psge 2)

*Password Reset Notice -GMS users are reminded that while password reset capabilities exist, this function is only associated wit11 points of contact designated within GMS at the time the account was established. Neither OJP nor the GMS Help Desk will initiate a pa1,sword reset unless requested by the authorized official or a designated point of contact associated with iin
award or application.

Overview of Post-Award Legal Requirements:
_ _ Review the "Q.'LElfVi.ew of Legal Rec1uirements Generafly Appligable to OJP Grants and .Coot:l!)Irllive AgreeQ1e11ls - FY 2017 Awards" in the OJP Funding Resource Center.

Scope Requirement:
_ _ The federal amount requested is within the allowable limit(s) of the FY 2017 JAG Allocations List as listed on BJA's JAG_Y!i_Qb paa.st

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What an Application Should Include:

_ _ Application for Federal Assistance (SF-424)

(see page 16)

_ _ Project Abstract

(see page 16)

_ _ Program Narrative

(see page '17)

_ _ Budget Detail Worksheet

(see page 18)

_ _ Budget Narrative

(see page 18)

_ _.Indirect Cost Rate Agreement (if applicable)

(see page 21)

_ _ Tribal Authorizing Resolution (if applicable)

(see page 21)

_ _ Financial Management and System of Internal Controls Questionnaire (see page 22)

_ _ Disclosure of Lobbying Activities (SF··LLL) (if applicable)

(see page 22)

_ _ Certifications and Assurances by Chief Executive

(see page 22)

_ _ Certification of Compliance with 8 U.S.C. § 1373 by Chief Legal Officer (Note: this

requirement does not apply to Indian tribal governments.)

(see page 23)

_ _ OJP Certified Standard Assurances

(see page 40)

_ _ Additional Attachments

_ _ Applicant Disclosure of Pending Applications

(see page 23)

_ _ Research and Evaluation Independence and Integrity (If applicable)

(see page 24)

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Appendix I
Certifications and Assurances by the Chief Executive of the Applicant Government Template for use by chief executive of the "Unit of local government"
(e.g., the mayor)
Note: By law, for purposes of the JAG Program, the term ''lmit of local government " includes a town, township, village, parish, city, county, borough, or other general purpose political subdivision of a state; or, it may also be a federally recognized Indian tribal government that performs law enforcement functions (as determined by the Secretary of the Interior). A unit of local government may be any law enforcement district or judicial enforcement district established under applicable St<1te law with authority to independently establlsh a budget and impose taxes; for example, in Louisiana, a unit of local government means a district attorney or parish sherift ·
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U.S. DEPARTlnENT Of JUSTICE
OFFfCE OF Just!CE PROO~AldS
Edward Byrne Justice Assistance Grant PrOi)rarn FY 2017 Local s.oJicitatlon
C,:rHfir21\Jf)f:S. :1ii•11\.;s.ur.'H<t::e;S
t:ry the Chl?f fx-e-cl!!.iv»: or th':' A;:,plk ,1\)t G r:-\11."•r,1mc-nt
On behalf ,:if the. appflrant v:nit ol !oo.1I giowmmecnr. named belo«. in '!upi:,~rt of that JooafiWs application fCf an award
ur,d+r:t th";< FY 2017 Edwa1d Symt> Justice Assis~oe- Gr.an\ ("JAG") ?to.gr.am•. and further to 42 U.S.-C. ! 37.'52{a). I
oortlfy undi;;,r µem:1!ty pf p1£-.l']ury to thtr Office of Jusb Pn;...gr.;;ms roJP"}. U.S. OepartmE"tt of J11:Stk:e fUSOOJ"), lh~ ttll ffl' the fc.llowint=;1 !lire true an<! Wrrac\:
1. ~am i.hP. clue€ e,xt:ou!lve of-\t\e applic.;int unitof 'kleal governnufnt na.rMd b.!low, Jaod I hi:v.re the authority to m.:l.ka 1he: folfC'JWing raprassnbtior:is (;)I", my cwm behalf and. cm bM.:ilf or th.e a:pp,lii::mr.l ·ul'l:n of local gowmrnerll I undl!f'l<ta:nd that th-E-Se repre:;e,.ntis1ions: will be re&d upon as rmJe.ri."i1 in ~riy OJP dee~ lo make an: .)Ward. under 1h-a :¥Pptic.1:Jion desetihOO ;c1bove, to tne appliwnt urwt of J,oc.til ga,.remment 2. 1Cf!riify that no federal ft.l'ndss rnade av.:tl!abi-0- by the award flf ;my) that QJP rook,es hss.ed on th.a app.floS:fon described 3hove ,..,Hl bl'? U'.S'=ld kt su:pplant!~J funds, but win be used tQ lnctel'i~ll Uw at00uots of such ftmds lhat woWd. 1n the i5 bsenee, of te,der,3.f funds. b>? m.cidt avaltabte fbr taw· en1bteem>ffit .;.c,Jvhio;;s. 3. I assurl:! th.:ll the applic:mon de..sa1b-l-d ,3:bove fand _any .simefldment to th.atappllca:tion) was $0..Jbmltt.etl fol re\OO!W to-th~ Q0\'1,!,'11iny b:ldyof'lhe unit. c4· Ice.al Qa!J'-1e-mmant(e.g= C;hy council o.rcounfy {XlmlfTilssfon). or to JI'\ c1rgaf'iizatioo des/..gn.3t-1a-d bylhat g;ow:mi.ng. bed!,'. not les·s 1h.;.n SO days. biafor~ th~ d3te of tN·s: C£:nffic:atlon. 4, I :a,;;~ur,;: lh3t, bti011: the dat-ti c,f this ot>rtif\~oo- {,g} the :"lpplicabon d&9'cibecl: ,atove (and ~ny amendment to th3t ..:lipplic:s'lit::r1)w~s ma® piJblic; Md (bl .m opporturitty to cc.1nrnent on; lhia:l $pp.'b-3tioo (or amen~f'lft) w;.s pro•1id.,.d ~o ,-:iliuns a<itl- :o ner..Jhborh::rod pr ccmmurmty~OO:s~ ~izatltms, ti> the P.:Ci:e·nt appbb4e: i.ww 01 estilbtished r,rooP.mJra ma<le-·1,octl'I an o,ppot11:111JQ/ avaiktb1i?..
f!i:. I as:!iure !hJI:, for eadl fisoal yaa.r ,tJf the atWaro (rf .ar'ry) 1hlllt OJP makes ba$ed .en ·t11e- a.ppliQili:loh desc,'ib-;;;d anove.
the ~licant imrt of k:tCR\! ~mn·1f¢nt •Nill m3frrmfl and R!por{ such dau. ~ .wid lnfo.rma.1fon, (pflC.lgratnrnllltk, and fuiancla!), a,s OJ P rn..::ty te.rtS.Onab1~· T,;tq.ufr,a, 6:, l t:.?lf'li()' th.:it- (J} the progr,arr,;;; to be funded b;t ~he ~ward (If any) lttat OJP m3ks;,s ba_s:ed on !he appfk:.atil){l GP.Seribed above- me.el afil the ro:quirements oHhe JAG P'ro9~am statute {42 tlS.C. §§ 3750-37,58~ (b} an 1M lnf,:lml~n oontaineid in that appl'iei;itlon 1-s ~ (1.i) tn oonn>.10.tion with ~Nfi 3ppk.;11jon, IM.~ has b-s-...n .;ppfi:,~riatl.t rocirdinalion with affMled agenci%: .and {d) 1.1'! oo~tion with U'l.&"t ,aw.:awd (ff 1H1y}., the ~l'ieSnt unit. of IO""~I Q:0\1$"1T111"1ef\t \vii! ooro-µly wi!h .;;II p.rovtsioris. of the JAG Program stlt.uta and all other.applie;;ibl\:'c '%-der:at law$. 7. l have el'"Zlm~ oertifi-c.3tii;>n enUU&cl "St?i;w. or LQC.'1,1 Gove;rJ"ll'M,nt FY 2011 Certification of Complf3!1~ Willi 8 U.S~C, § 137::r- l'!'X~d b.y the ohfefr~ ofooc.rofihe,.app-UeantQOW:mlfltmtwiffl r,es~t to the-FY 2017 JAG progf'.am and $000,irt~ in supp,on ofthe llppll<:Gtiort tl~'lb,-ed ~bove.• ,:ind I hereby .adept tt\st ~ ! I o n ~s my own on Mhakfof 1.h,;,t gt,vann~n'L t .sck:oowfed.ge that a rr..,n.-rlaAlyfa.lse. ficiffiolJ·!, or fnr,Jd:utent ruitemeol (-Or ooncealrnenl or cmlss!on o1 ~1 rna:JP-ri&;I f,.'lci:} in t,\b oertiiicalk,l'l, or in 1.he .:ippli~on th.'.\t tt 5 support:s:, n,a,,y be -rne, $Ubject a0! ontr'M.MI pws&vUtioo (indur.lin.a: under 1"S.
U.S.C. §§ 100 r and!or 1621, .antV,ar 42 U.S..C.. .§ ~7,95a). and also may subj'.:'.!ci. me and: the app!iCJntt1riit-ofloca!
~mie-n1 to civil pen:atM:s ::ind adrmt"rlstra~ ri:niOOles !or fai'!;:e ~!ms- or Cv':l"d11N.+;,e~tl'U)ltiding unde,r 31 U.S,C. §§ 37~37':Kl t1nd §§ 3801~~12). I al5¢ ~knOVIIOOge that OJP ».;rrd~lnclt!dinQ oertffi~ns-provid~d ir, oonnec'tiOrt wi1h ~ aw;)rd.s. ar<!!" subjec1 to (€111~11 by U'SOOJ. incftidln_g bV 0-JP Md by th:<9 USOOJ Offioe of the inspi;:•etoi,: C-..er..&raL
Signatur~ ot Chi.?4 Exerutiv!;! oftM-App»enint t_lnit c<
L;,;:'lcii! Oovemml!?flt
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Appendix II
State or Local Government: Certification of Compliance with 8 U.S.C. § 1373 Template for use by the chief legal officer of the "local Government"
(e.g., the General Counsel) (Note'. this Certification is not required by Indian tribal
government applicants.) Available for download at: IJ!!12s:l/oip.gov/fum:l]!lg/Explore/Sarrmlil.Q_~rtiflc;atio11s-8USC 1373.htm
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U.S. OEPARThlENTOF JUS'rlCE OFFICE OF JUSTICE PROGRAMS

On be~ of fh~ ~nt{io~.ent E<ntity name<ll bebw, and in suppo-rt. of Its appllcati«I. l rertify under penalty of pel)!.!ry to ff'.ie Offi;;,I; of Jusi,c;a '?rogt,;<(l']S fOJP"), ti S. OepartrneM! of Ju!.tire rusDOJ''}, 1.hat all ~f 1.he fbkl.ving Jrn, true arid i!'.Ol'J'ect:

(1) I am the dwf reg~ offie$' of ttie 'State a lQC:."lf gO\'E<tn'n':!nt cr~cn ·the app'!ironl emrt<j mimed m!O'f1 ilii ~ part ("'lfl:i!. j u ~ " ) , aNi f ha\."e l!,,e a u ~ -to !'l1tlkf: this· ~i""w5.."'lfi Ofl bfflalf of frle jurlsd[ction :IDd th~ appfrttant entity (lh..it is, the ~lty app!yi119 \l:ir,E,i»"y to- OJP~ 1\J:t'"j(\::fsi:M,d ht OJF' will te1y upon this ~rtificalioo as a rn&l\!f\:al
r;a-r,resent~ in J.ny d;,olsk>n'k't ~£"an awY~ to ~ appliC3.'lt dty_

(2) I have """My rel",e,~od 8 U.S.C § 1:ll73(a) and ibl, noludlnQ1l1~-·>lMon,on cert,tnacfioo; hyStato and local
go·~emn,e1t enMi.r:s, ~ e s..and -offi~ rEsg3,,;,::n_g ir1fi:m!:~ on Citizensh? -and iruriigrS!liion -statu'S. r'3lso:. hilV;l!
rev~d !he prov~s set od!. at{or re'fe:nmced int E: U.S.C. § 1551 no\~ (~Abolition ·~- .md Tomsflu -of Functions")..
purs~1et w_hict. refere.oc:es to !he 'lrlm'ig-railon :)rd M~rafiution S,;:rvice· ln BU.S.t:., §.1:273' are to be read. as a
leg;sl frl3tier,. as r e ~ s to. partkul:at o o , ~ s . of N lJ,S. ~ ~ . n t <A H<::im~Md Sswrity.

11) I {;m;;J a.ls,o !he app<iO!llll •nnty) UNl- th"11l1e US. O ~ t of Jvs,;.., mil require States and 1ocs,1 Q011i!m:ments (1100 agene:e1> om orrr.-r en~es ~Jf} io 6'.ll"fW 't'lfl!l BU.S.C, § 1373. wlb rape<:t to ·any ~program or acii~~!y' fun.iw'.! fn whol¢ i::ir in p§t vmh the-~ fror;dal' ~s-is~· provided 1hrough the FY Wt 7 OJP progr~m
und~rwhich 1!,,$~caiion ~ ~~f.tl'ad rthe FY 2017 OJ? Program"" 1den!'.;iis:d~). ~:JfiCJlly lnol'Jdll\·g any s:udi " ~ N actl1i.'tf of J goverrrmeiM.n! ~~ty or •agency that ls a subrec'ipje'YI (at my lier} of ii.rn-ds under 1he
FY20170JP~

(4) I f.:i>nd also tbe 3:~i~l e'ttll:1} t1!\d-€1Stir!C !hat, kit r , u ~ m' thls. e:erlifieatton, '"program or :actl1,11lty' me~li$- ¥mat ft

11'1,;:,a~ ~ lliUe VI Of !he Cfv.4 RiifJm'!s ~t of tGe>4 (~e -iti USC. § :200(}d..4a:}, and 1hat. ~s u~ ln this -i:.:rtlf.a.at·x.

lh:;;,tare deFi,ti;a,d:in a U.S.C. ~ 1101 ~ wm;:.i ihe'f ~ undet1h~1 ~11 1·1ot. e:i:~pttfud lh~term ·st;}te" also

lia'"'" ,Mil inclludo -<'~an

(d 42 U.S.C. § IIOl(.ilf2>; Also, I\11.,..a>d !Ml for P""I">""' of !his c,;nl!jc,llon,

r,el!h8 a \."tl'tl..-:F ms~~ of higf,e:r ~IB('m tl~s- one lhat !s ~-0. ,eontroted. or direetl;, fundf.1-d by a State or lomJ

QO\>',emmertt:) nor M. \!'Ai11:n !Th is o,;x·ts:i<li:'rod a S~E- Qrloc:a; go·lli'mlllent e:nt\l'j or ~ag"!ri.e}'.

f5) l ha!J'& ~ t ' i ! d {or caused to be tC,(Jflduote-0 for lf('l'e) ~dil!gem !ruJuff)' am:I raiAii!w ooncarnlng bJ:.1~1-

(3') the ~~ or a0<W~ to be fuMdE;id (f. ~ or !11 part) W&'i.t"t the fede-ra! iinan~ assist:in~ ~

·1""9= ""*"'' bythe ~~nt £:ntity ur1dl?r 1his FY :2017 OJP Pril)."',n.rn: and
lb) •"l' iro'>ibiticrn, or llliil1\el>MS fX)!enilalJJj ,ip¢'"3bio I<> -01~

or ao!Mty"

lo l>e fund~

!Jffl.",\12f th'6' FY 201 f OJP P l ~ 1h3l deal •1Jtth ~ t o . ~..:,;st:r,g or r~i'l1ng "ht'irn. maiflt.linlng:.

CJ' er.chan,gir:.g GOmta'!lon of :the ~ s d,et,~ in 8 US.C.. § 1372,(3) or ib), Wh'='thi'l" ~sed by a

Stat• or!«.alg<W<m1Mllt'"'1ir:,, -•g•noy, or 4ilclol.

(61 As of !!I• dal:o <iiJM os,rtilio>llon, nei!hor 1!1'l.ju,_ nor ;myen!ity. agency, oro!iicial cl 111•
Ju1i~io.'l h;M. In ~ . pu~ tio ha~ in err~. et is ~~·ert ro o r ~ by, ,;inypmhibWoo or any
t5mcilon 1hat""'1ll<f•pply" 1111! '\>roQrnm or d!l\lj'• 10.t-, ~ in.,.hole o, in port- tile FY 20'!7 0.JP
Pnl!lram (vm;d,. l<>r h l t ~ f i o - • of !his p""'!Jraph 6, ,shall ""'be underEtcoo lo illl:lude •oy ,uch
·pn;)(lran or ~:Vity" l(Jf :any subreoey;~ :5t any t111t}, and that deals w,1h ec.11her- ('l} a~rrr-,!}t ~ Pr ~off,.cfal 1;:e.11d1ng.or-rt~ing *·da~on ~uo:L-,g c,~iz~/\Shfp- or immigration. itatus- as des.o:r~d in 8'
a U.S.C. ·§: t3.1j,{a); or a)3 govermnent enlily or ..~~-Y ~ \\Cr, 1~estlng or (,;);~hi~ fnlhl r,nalntaJning..
01 J?l:~nJ1in!Qffl'lat.1¢1tl oi~ cypeS- (and with re.sp.;;c:fi'b.:l- entities) dei::ribed tn U.S.C. _§_ t3Wfb}.

1aunOIN!.©J!!: !ha't a ~1erialty faB~. ~ticus, or ~ 1 "Stwi'>!!ment{a cooei;:alment or on\'5$Joo of a ffli'tt:Er..al f.ait:t:) in this ~ii$c,.;;il;k"'. or in 't1~ ;1pplb2160,., lfWi!lt it supports. may tie lh~ ~ t 0: erfmlnal ·pr$;etuti.on {ir.:.ludin.g: uNl-ar-1B U.S£_ §§ 10CH andl1:< 1621. andlo, 42 U;S.C, § 37\l!i>). and ""1 - sul:je« m• Md 111• applic"'1l lffl!lty!o oiv> ponai!i;,s ll'<I admirostra11v•
"'""°"' for fol"' wim• ar (>lhermse (including - 31 U$.C. §£ 3729-3730 •nd §§ &Ol-:ill12). ! also sckn0<'1«11!• !hat w~, OJ"P avrallds. in~~ Cffll~toris pt0'11kl1ed fl: reR1«:l::on !!itldl aw3!tls·, -are su~je~! 10 revi.e-w by USDOJ, fududing. by
OJ P and by the usuuJ Office of the: ln.s:;;ee:D' GenJ:traL

F'f l017 CIJF' Pr.,m·tin;:· Byme Justke Assistemce Grant ("IAG"l Prog1·am

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Appendix Ill

8 U.S.C. § 1373 (as in effect on June 21, 2017)

Communication between government agencies and the Immigration and Naturalization Service

(a) In general
Notwithstanding any other provision of Federal, State, or local law, a Federal, 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, the Immigration and Naturalization Service information regarding the citizenship or immTgration status, lawful or unlawful, of any ind\vidual.

(b) Additional authority of government entities
Notwithstanding any other provision of Federal, State, or local law, no person or agency may prohibit, or in any way restrict, a Federal, State, or local government entity from do.Ing any of the following with respect to information regarding the immigration status, lawful or unlawful, of any individual:
(1) Sending such information to, or requesting or receiving such information from, the
Immigration and Naturalization Service. (2) Maintaining such information. (3) Exchanging such information with any other Federal, State, or local governmententity.

{c} Obligation to respond to inquiries

The immigration and Naturalization Service shall respond to an inquiry by a Federal, State, or

local government agency, seeking to verify or ascertain the citizenship or immigration status of

any individual within the jurisdiction of the agency for any purpose authorized by law, by

providing the requested verification or status information.

·

See also provisions set out at (or referenced in) 8 U.S.C. § 1551 note ("Abolition ... and
Transfer of Functions")

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Appendix IV
OJP Certified Standard Assurances
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Case 3:17-cv-04701-WHO Document 11 Filed 10/13/17 Page 126 of 310

U.S. DEPARTMENT OF Jurncr
OFFICE OF JUS11CE P l ~ S

OMS No. 1121-01.!0 8tpfres~/3.U201Q

CERTIFIED STANDARD ASSURMICES

On ~half ofr.:i,;: App!fe?flt and ·fl wppott c,f this ;;ippllootio11 fur a grant or«>epP.~fw.a:t)t£efJ'IRf'.t, l ~ i1m:'~ penalty of pc~t!I)' 1P 1ne- Oi~e of Justice Programs fOJPt. V.S Dep,:irtrr,ent of Ju:s1fr:.e ('01?-p;irtrruml'J. tltat all ol the foUowfr1g are true ood oouect:

{~ ) Ih.w1a the,.'ilJlh.'Yitt ~ l'l'la};e the fo,,'kh'iwq l"Ef-(:;?Sint31lort6 oo b.ilatf ol rn,s~ 3rd the Applir:Y'L. l l~W:d ~ lhe6>'?
t ~ t ~ , - s \'f)·OO rsilleiJ 1,,ep:,n .as f1\.'lfenti In ,jfl'j OJ? ~1*n {()mah m ZINNd w, atMAppllront ba:$£-d w itt. ..pt,t'G.:i-ti::r>,.
! [2) ""'"1y1h2< ,,. Aq,/lron1 has !ho lcgct li1Jll1/;ol)' to;,;,,,>,• fef ~.., _as"""1<>1 =it< by !h> 3l'Oil@m an:! <It< it has lhe
mllul:lr.:n:lJ, m.11·.~ena!. :and f ~ ~1"/ ~nclud.og~ ~ t o pil}'"il!'IJ ~-r~ n«"l--f~ ~ olrfl."!ectoosls) to dan, ~ . 30,:1 corrpl;:,<ie I.M ~~~ n'lhe ~k-3ti"oo~-

{l) I as9._,, 1tla{, ~rourj\O.~ ltw p ~ of {:effcr;n.ara.ior h iWi'3!d (ff any) rt'C'lCWby OJP 1:asecl 01 i;ra- ~cat'«i-

(.a1 !l"ut- ~1¢.'liit wll ~y,M1- al1 ;.vmdmq!Jirernen!S 311d it fed&ai ~tmute-s and ~rttkm.~r~·to the z~..~:
[bl the ~cam 'MIi ~real1 ~11br~err1Sm~ v.ift iiJW,~ dWal'IJ-~,m,d al'J l:IWlc..U~f~ ~ m:i
J€g!..t1aikns ~

{c) tr2~twill r,,.:dntain sx'egu~ds t o ~ ~ ~ e t J.fl'f OV,!nacoal OMfiict of Tees!. am ~:so top!V1bit 'i:n~im;nt~ !r~rpc,5llic.-s \n "¥r/ l'l\."W'E!in3t~. or a;,pews to:p::>Sflr, a~~ orffl~ ccoHict-of ftW3t.

{4)

Th<, Al'f{c.cr, ~on s~

.u;-ra~J'.Yy i.rldsl.>!Oro::t's1tha<t>utfe<:s;:ia«n;;d,r, _ ~~ "11i~t<1!(iJi'-1'c1<'gcmto

""'"""e ot/lr',7lts

tolhe zn:I r

n-t1\dIiW~")"(il;.i-\!.>;iNit.'On1 J~ I' b.1SE<I "1

the

u.s.c. !al lhe Awfi~ ur.<;'~d$ I.hat 'th'<' apf.{i,:;.:;U'=" ~ ~ 10 <:hAI righT..s wit 111d:o:l.e Si?ct~:tl 001 ofilie G,n ~-is kl. of

tW:14 (42

§ 3l)Od~; ~ 504· of~ Rehdut.m NJ. of !-!dB (29 U.S.C. .§ 7~); sedion ro1 dihe Edoo:aticn Atr«.drre"lts

~ l'JJi2 !20U.S.C.§ le.81'\':'Md~ ~offfie~Osaimh:rtiooAct of1975 (42·U,S.C. ti'5102):

{t,} trwJ.r.plicant~s.tl\at the a..~i~ st:mJ;,s~rfr,g 10 l'Y'J'li:f1S<mr.aii-~-" m:.y ir.!'l'~ wctiu:,:$1~ie) ofT~ l Uthe ~ Crirre Corrtl'.'d.~ -S3f<" Srr-,xtsMr.1 \00.~ ('42U.S.C. ~ 3789dfG)); xctko t-407{~) of !:ha Vi00:rns.cfCnrre-A.""t·cf1W \42 U.S.C. _§ 10C04{~l}: sectloo2(t.~AtbJ of the Ju,~!~ Justt::i-~:I Qeirqu~"<.i1 ~ Act of.2t)'l1 i?2 US.C. ,& ~l'J72fc)); ~ 'n.'"lt the p-lt~lltrt) $8ttool: 'llt~cn,40032/b}{l'3) of thc.'V1cl~ ~ t \~J1Aci: (4~ U.S,C. § 1;:.;i-2-:<bX13"1'1 ilso rray· ;;.pj'fy,

~re.- le} tf:ti:. ~cwt u~"s.t:al:tis th3t t rrtJS! rsq.ii1'! MY s~pfert lo OC",mp/y wt'.h ~I svcl'1

~ {av.f~.!a'd

¥~~t«l£);~

!tn on 00~! of~ Aw·'~ tmat,.eh ~ ~ , ) E S sa,c,u1·,n 1B C,F.F.,, §§ ~2 1M:and<t2~

fS} ~ ~ ¥ i n t i ~farm trot (:n sJd~k,n w ?lYi ap;:Ue;ti,;c ;<O'J(am·-~'1 r,ag.ilsIDnS an.-1 ta ;ipp!c;t;ie ~~£ ~"'JX«ls lriai: f,'ei:.iliilil 10'i;Mf riJ;JlfS ,Jin(! noodist.:ririirrafkn:J the fa~ rJW",,ulatims- ~i~ \o the 3l~fri B\Y} rr~t, QJP b..1u,d on li"P~onm..w, incJLCE, but aretfmlffi<i-to., 2.C,F.R. Patt ~DJ {ti".; 00Jr1~'lft2liU·Jroo\,~iJ..t=fT'.$'itS')and2&C.f,R_ l?art:. 2l k~~,ty ~ ~ulvh N'>d ~~ l ~ ) . Zl(crirrlnai L~liges-0-2 ~oorn:_l, :and 46' fr1..1ma11 s:u~ ~ l ,

(6j IZl$.'i't.R- ~-th& ~'f!MW,~ J/ii!ll~ OJ? !6 J';,..."<.eS~ (end ',\~\ ta:t_Jr.:: s>..Uoct;:i'~ ~,:I cr.-nlra::tco. to ns~ist :J:S. ~53"f} vi.1h
1he ~ts~w~~Wl:hseclion 10-J ofthi: r..atia"-3 H-s-tc:tt.Pr~.:.n~ o11gre{eAV.S.C.-§3'Cl1100J,the
1 ~ ~ ~ P t ~ o n h $ . d W 7 4 ( 5 4 U . S C , § § 1 1 2.i.'JJ1-31:?:08),..n1hh-&f~ErniirC£'.rnenL'.>lFr:foykt-df IQ6ij (42"U,S,C. §§ 4321·4'33-5}. ai,d 28-CfR. ~ 6:t tN::PA) z.nct ID ;i1c:o:li:~0$ztid wt'Hlarx!-s}.

{7) r;,:tf,SU(e ltsat !he- ~'{;Nicait 1/dll ~ lite ~ P l ! and:tl'm G::l.'ffl'!ITe-:f ~ m t ~ l Office, lhtt1.1gh iinl i.'l~'i'ltx:ri?.ed rt((e.5ef.twi,ve., ~ s TO, Q ~urrtyto 0.'3TliM, all jli.~(lt" -el~-mc.ct® re!;.J;edtt, tl1'le JMls:rd (rf j)fl,~1} ~ t,y OJP b<ISfld 01 th!i! ~~stin
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,,rn (a) ~ curc~y 'Mlh ti-'&? seq..-ir~.is of !he JJoifoot1 Rel~ ~ i 1 1 R i ~ ~~9tior;s NA d iit10 (42 UJ3.C.
§§4t1Q\,4f.:t), W'',kJ1 ~m th~ trt.7<1n"M't/'p!i~Ssd~.sa-l'IWSU't.:i'f~~~$ted~~

!l>) ltWil """lliY ,"1tl reqal"""""' of 5US.C §§ 1£l)1-1'mllnd73l,l-73'2!<.wiii::olimit_p,ll!irnt/_ ofS...u~r,n.,nt~~ \\Jit&i p<lrr~ ~ t Is 11 ~oo,ilh ;:-;:tt ~ f i ~ tr1Vllf-de arin pxtby1~
as>sisl.MC>1,

I aiek>"w:r;,tedg~ th;,t a m.1t~r'.:l.&y fals..a, fit.1i00Us. or fraOOulenr atat~nt (vrtt:lnceal1•nt e< om!5,sf0fl of .a n'laOOJl;d fact} in thl.s
cerr:iiwticn, /;ff .r, tbe 4pplic.11ion d1at It supports., fYJ.JJ!/ be ·u,e- 'S!Jbje¢Jt of «lminal pros~t.utkm {including uM~f iS U.S.C.. §§ i 001 &-..,;ftor
tt•Zt, ~clfor-42 U,S.C. § J7n5.a), .and also rm1y $ijbl/Xltme and the Applicant lo civ!I ren~·d;:,!$, and -;:dmirii~tratN& re,inedif:.S f«- f;a!se
elairns ot °"11~~,u, (in{.fudil\g und:er 31 U;~LC. §§ .3723-3730.snd 3.80i-3H2). 1.~p ae;W.."M'ledge thal OJP avr~. lntru~
orrrtflo.N.iortli- ~ in C()MP.O\ion with sru,eh .IWJf'ds, are subject to re11iew by tl)e- Dep;lttrMnt inclWin;J by QJ'P- and tty-the
Dep.;irtrtwni's Ofice of 01>? !n~tCil' General..

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Case 3:17-cv-04701-WHO Document 11 Filed 10/13/17 Page 127 of 310
EXHIBIT C

Case 3:17-cv-04701-WHO Document 11 Filed 10/13/17 Page 128 of 310
COPS
o, COMMllfflf'lOll/hUD P()UCIHO ttllrWS
UA. OUIIRTMlltt ,1unn:1r
The U.S. Department of Justice, Office of Community Oriented Policing Services (COPS Office, www.cop5.usdol,gov) is pleased to announce that it is seeking applications for funding for the COPS Office FY 2017 COPS Anti-Methamphetamine Program (CAMP). This program furthers the department's mission of advancing public safety through community pol Icing by addressing the department's goal of assisting state, local, and tribal efforts to prevent or reduce crime and violence.
2017 COPS Anti-Methamphetamine Program (CAMP) Application Guide
CFDA#: 16.710
Funding Opportunity Number: COPS-CAMP-APPLICATION-2017
Eligibility
The fiscal year {FY) 2017 COPS Anti-Methamphetamine Program (CAMP) is a competitive award program with a focus on advancing public safety by providing funds to investigate illicit activities related to the manufacture and distribution of methamphetamine. CAMP provides funding directly to state law enforcement agencies in states with high seizures of precursor chemicals, finished methamphetamine, laboratories, and laboratory dump seizures for. the purpose of locating and investigating illicit activities including precursor diversion, laboratories, or niethamphetamine traffickers. Only state law enforcement agencies authorized by law or by a state agency to engage in or to supervise anti-methamphetamine inve.stigative activities are eligible to apply for funding. Additional consideration will be given to agencies participating in anti-methamphetamine task forces with multljurisdictional reach and lnterdlsclpllnary team structures. All awards are subject to the availability of appropriated funds and any modifications or additional requirements that may be imposed by law. ·
Deadline/application period
The application period for the 2017 CAMP begins May 22, 2017. All applications must be submitted July 10, 2017, at 7:59 p.m. EDT. Applications submitted after July 10, 2017, at 7:59 p.m. EDT will not be considered for funding.
Completing an application under the CAMP solicitation is a two-step process. Applicants are first required to register via WJNW,grants.gov and complete an SF-424, submitting it through the Grants.gov website. Once the SF424 has been submitted via Grants.gov, the COPS Office will send an invitation e-mail to the applicant with instructions on completing the second part of the CAMP application through the COPS Office Online Application System (see "Registration" on page 3 and "How to Apply" on page 14). If you have not renewed your COPS Office Account Access information, contact the COPS Office Response Center at Asl$l;Qpfa(C@~sdoj.gov or 800-421-6770. An application is not considered submitted until both of these steps are completed.
U.S. Department of Justice, Office of Community Oriented Policing Services
www.cops.usdoj.gov

Case 3:17-cv-04701-WHO Document 11 Filed 10/13/17 Page 129 of 310
Contact information
For technical assistance with submitting the SF-424, call the .Grants.gov customer service hotline at 800-518-4726,
send questions via e-mail to ~!!11Jlort@Grant5,gm,,_.or consult the Grants.gov Organization Applicant User Guide at http2 ://www,grant~ov/help[btmllh.e.!J1/lndex.htm. For programmatic assistance with the requirements of this
program or with submitting the application through the COPS Office Online Application System, please call the
COPS Office Response Center at 800-421-6770 or send questions via e-mail to AskCopsRC.@!!sdoj.gov.
U.S. Department of Justice Office of Community Oriented Policing Services Russell Washington, Acting Director www.cops.usdol,gQy
2017 COPS Anti-Methamphetamine Program (CAMP) Application Guide
The COPS Office Application Guide is designed to assist applicants in applying for COPS Office award programs. This guide includes general information on the administrative and legal requirements governing CAMP as well as detailed program-specific information. For more information about COPS Office awards, please call the COPS Office Response Center at 800-421-6770.
U.S. Department of Justice Office of Community Oriented Policing Services 145 N Street NE Washington, DC 20530 Visit the COPS Office on line: www.cops.usd'!i,gQy May 2017

Case 3:17-cv-04701-WHO Document 11 Filed 10/13/17 Page 130 of 310
2017 COPS Anti-Methamphetamlne Program {CAMP} Application Gulde
Contents
COPS Anti-Methamphetamine Program (CAMP) (CFDA 16.710) Overview .................................................................. 1 COPS Anti-Methamphetamine Program (CAMP) description and federal award information ................................. 1
Registration ........................................................................................................................:..........................................3
Deadline: Application ....................................................................................................................................................4
Eligibility Requirements .................................................................................................................................................5
Program-Specific Information .......................................................................................................................................6 Program goal .............................................................................................................................................................6 Length of award term, maximum federal share, and local share requirements .......................................................6 Federal funding: Allowable and unallowable costs ...................................................................................................7 Monitoring, reporting, and evaluation requirements .............................................................................................11
Performance Measures ...............................................................................................................................................13
How to Apply/Application Submission ........................................................................................................................14 Electronic submission of the SF-424 in two parts via Grants.gov and the COPS Office website ............................. 14 Obtaining a Data Universal Numbering System (DUNS) number ............................................................................15 Registering with the System for Award Management (SAM) .................................................................................17 Geographic Names Information System (GNIS) ID number ....................................................................................18 Deadline/Application period ....................................................................................................................................19 Helpful online resources .........................................................................................................................................19 Audit requirement ...................................................................................................................................................19 Civil rights ................................................................................................................................................................19 Section 508 of the Rehabilitation Act......................................................................................................................20 Award terms and conditions/Funding restrictions ..................................................................................................20 COPS Office Application Attachment to SF-424 ......................................................................................................34 Section 1. COPS Office program request ....................................:............................................................................39 Section 2. Agency eligibility information .................................................................................................................39 Section 3. General agency information ...................................................................................................................39 Section 4. Executive information ............................................................................................................................41 Section 5. COPS Office officer request - Not applicable under CAMP ....................................................................,41 Section 6. Law enforcement and community policing strategy ..............................................................................41 Section 7. Need for federal assistance ....................................................................................................................41
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2017 COPS Antl-Methamphetamine Program /CAMP} Application Guide
Section 8. Continuation of project after federal funding ends ...............................................................................42 Section 9. School safety assessment - Not applicable under CAMP .......................................................................42 Section 10. Executive summary ...............................:.......................................................,. .......................................42 Section 11. Project description (narrative} ..............................................................................................................42 Section 12. Official partner(s} contact information .................................................................................................43 Section 13. Application attachments ......................................................................................................................43 Section 14. Budget detail worksheets and budget narrative attachment ..............................................................43 Section 15. Assurances and Certlfications .........................................................................................:.....................51 Section 16. Disclosure of lobbying activities ...........................................................................................................51 Section l6B. Certification of Compliance with 8 U.S.C. 1373 ..................................................................................52 Section 17. Reviews and certifications ....................................................................................................................52 Sectio.n 18. Application data verification - Not applicable at time of application ...................................................53
Appendices ..................................................................................................................................................................54 Appendix A. Glossary of COPS Office program terms .............................................................................................54 Appendix B. Assurances ..........................................................................................................................................59 Appendix C. Certifications Regarding Lobbying; Debarment, Suspension and Other Responsibility Matters; Federal Taxes and Assessments; Drug-Free Workplace Requirements; and Coordination with Affected Agencies...................................................62 Appendix D. Compliance with 8 U.S.C. 1373 ...........................................................................................................66 Appendix E: Appendix II to Part 200-Contract Provisions for Non-Federal Entity Contracts Under Federal Awards .............................................................................................67
Appendix F: Appendix XII to Part 200-Award Term and
Condition for Recipient Integrity and.Performance Matters ..................................................................................69 Appendix G: 41 U.S.C. § 4712 -Pilot program for enhancement of contractor protection from reprisal for disclosure of certain Information .............................................................71 Appendix H. Intergovernmental review process, points of contact by state ..........................................................75 Appendix I. Federal Funding Accountability and Transparency Act (FFATA}-Reporting subaward and executive compensation award term .............................................................76 AppendixJ. System for Award Management (SAM} and universal identifier award term .....................................80 Appendix K. Step-by-step instructions for two-part application submission process .............................................82
Paperwork Reduction Act Notice ................................................................................................................................85
About the COPS Office .................................................................................................................................................86
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Case 3:17-cv-04701-WHO Document 11 Filed 10/13/17 Page 132 of 310
2017 COPS Anti-Methamphetamlne Program (CAMP} Application Guide
COPS Anti-Methamphetamine Program (CAMP) (CFDA
16.710) Overview
COPS Anti-Methamphetamine Program (CAMP) description and federal award information
This program is authorized under Omnibus Crime Control and Safe Streets Act of 1968, 42 U.S.C. 3796dd et seq., as amended and the Violent Crime Control and Law Enforcement Act of 1994, Title I, Part Q, Public Law 103-322.
The use of methamphetamine-a central nervous system stimulant often referred to by its street names such as crank, speed, ice, or crystal-has been a persistent problem for law enforcement agencies across the United States in recent years. Methamphetamine is cheap and addictive and was traditionally developed In clandestine laboratories that were often located in remote areas. Methamphetamine use spreads quickly, most noticeably in rural areas, largely because of the simple preparation methods used and manufacturers' easy access to the necessary precursor chemicals. In more recent years, changing trends in methamphetamine production and distribution have created new obstacles for law enforcement and public health agencies. While law enforcement efforts and precursor chemical sale restrictions have been successful in decreasing the domestic production of methamphetamine, foreign drug traffickers have capitalized on this decreased availability by quickly expanding their avenues of methamphetamine distribution as users have sought out new, reliable supplies. 1
Since 1998, the COPS Office has invested more than $500 million nationwide to combat the spread of methamphetamine. The COPS Office encourages agencies to focus on community policing approaches to methamphetamine reduction. The COPS Office also works directly with state and local law enforcement agencies to craft innovative strategies, track and evaluate their implementation, and disseminate results to other jurisdictions confronting similar challenges. To combat methamphetamine in their communities, the COPS Office encourages sites to develop partnerships with other agencies, such as the Environmental Protection Agency, fire departments, local businesses, mental health organizations, child protection services, and other local law enforcement entities. The COPS Office also encourages data collection and information-sharing efforts aimed at better identifying and responding to the needs of drug endangered children.
For example, the Drug Enforcement Administration (DEA) uses COPS Office funds to provide training to state and local law enforcement professionals on clandestine lab enforcement operations including basic certification, officer safety, and tactical training. The DEA also uses COPS Office funding to improve the clandestine lab informationgathering capabilities of the El Paso Intelligence Center, carry out regional information-sharing conferences, and. assist state and local law enforcement in cleaning up methamphetamine lab sites. In FY 2014, the DEA received $10 million in COPS Office funds for methamphetamine lab cleanup efforts.
The FY 2017 COPS Anti-Methamphetamine Program (CAMP) is designed to advance public safety by providing funds to investigate illicit activities related to the manufacture and distribution of methamphetamine. CAMP provides funding for 24 months to state law enforcement agencies for equipment, overtime, and other approved personnel costs for law enforcement officers assigned to the investigation of methamphetamine production and
1 National Drug Threat Assessment 2011 (Johnstown, PA: National Drug Intelligence Center, 2011),
hJ!P.;L/ww"'1Justice,mv/archive/ndic/gubs44/44842/44849p~11.c;!f.
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Case 3:17-cv-04701-WHO Document 11 Filed 10/13/17 Page 133 of 310
2017 COPS Anti-Methamphetamlne Program {CAMP} Application Guide
trafficking. Funding awarded to state law enforcement agencies may be used to support law enforcement personnel costs for allied agencies' officers participating in a state anti-methamphetamine task force. The COPS Office anticipates making approximately five 2017 CAMP awards for a total of approximately $7,000,000. Funding requests under this program will be capped at $1,500,000 per award.
New Certification Requirement
All state or local government entity applicants (e.g., police departments, sheriff's departments, state police) are required to certify compliance with 8 U.S.C. § 1373 regarding prohibitions or restrictions on sending to, requesting or receiving from, maintaining, or exchanging Information on citizenship or immigration status, including any prohibitions or restrictions imposed or established by a state or local government entity or official.
In FY 2017, all state or local government entity applicants (e.g., police departments, sheriff's departments, state police) are required to certify compliance with 8 U.S.C. § 1373 regarding prohibitions or restrictions on sending to, requesting or receiving from, maintaining, or exchanging information on citizenship or immigration status, including any prohibitions or restrictions imposed or established by a state or local government entity or official. This certification must be completed by the governing body's chief legal officer (e.g., city or county attorney).
a. Set up a new user and roles in the COPS Office Agency Portal at httpsJLportal.cops.usdoj,gov/. Establish accounts for the law enforcement executive (LE)/ program official (PO), government executive (GE)/ financial official (FO), and chief legal officer (CLO).
b. Set up an e-signature in the COPS Office Agency Portal at J:m~JJ!Q!.tal.grn1,~~9l?l,WL Establish an electronic signature for all officials (LE/PO, GE/FO, and CLO). This is critical as it enables your agency to sign important documents in the application
process.
We strongly recommend notifying your governing body's chief legal counsel of this certification requirement as soon as the CAMP application period opens so that they may conduct the required reviews necessary for completing the certification before the application deadline.
Questions regarding the certification requirement may be directed to the COPS Office Legal Division at 202-514· 3750.
Please be advised that a hold may be placed on any application if it is deemed that the applicant agency is not in good standing on other U.S. Department of Justice awards, has other award compliance issues that would make the applicant agency ineligible to receive COPS Office funding, or is not cooperating with an ongoing U.S. Department of Justice award review or audit. A hold may also be placed on any application if it is deemed that the applicant agency is no.tin compliance with federal civil rights laws or is not cooperating with an ongoing federal civil rights investigation.
Misuse of COPS Office funds or failure to comply with all COPS Office award requirements may result in suspension or termination of award funds, the repayment of award funds, or other remedies available by law.
Under the False Claim Act, any credible evidence that a person has submitted a false claim or has committed a criminal or civil violation of laws pertaining to fraud, conflict of interest, bribery, gratuity, or similar misconduct involving COPS Office funds may be referred to the Office of Inspector General (OIG). The OIG may be contacted at Qjg,hotllne@usdoj.gov, or 800-869·4499.
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2017 COPS Antl-Methamphetamine Program (CAMP/ Application Guide
Registration
All FY 2017 CAMP applicants are required to have a valid ORI number. The ORI number is assigned by the Federal Bureau of Investigation (FBI) and is your agency's unique Identifier. Please contact the COPS Office Response Center at 800-421-6770 to verify your agency's ORI number. If you do not have an ORI number, a COPS Office Response Center Specialist will assign one to you for the purpose of tracking your award application. This is required before you begin your application on Grants.gov. In addition, the Federal Government requires that all applicants for federal awards and cooperative agreementswith the exception of individuals other than sole proprietors-have a Data Universal Numbering System (DUNS) number and be registered in the System for Award Management (SAM) database prior to submitting an application. See "section 3: General Agency Information" on page 39 of this guide for more information regarding DUNS and SAM. Completing an application under CAMP is a two-step process. Applicants are first required to register via www.grants.gov and complete an SF-424, the government-wide standard application form for federal assistance. Once you have registered and submitted your SF-424 through Grants.gov, you will receive an e-mail from the COPS Office within one business day with instructions on completing the second part of the CAMP application process, which is the COPS Office Application Attachment to the SF-424 through the COPS Office Online Application System. If you have not renewed your COPS Office Account Access information, contact the COPS Office Response Center at AskCoPSRC@usdQ),gov or 800-421-6770. It is strongly recommended that applicants register immediately on )!!Ww.,grants.gov. In addition, applicants are strongly encouraged to complete the SF-424 and section 1 on Grants.gov as quickly as possible. Any delays in registering with Grants.gov or submitting the SF-424 may result in insufficient time for processing your application through Grants.gov or the COPS Office Online Application System. For technical assistance with submitting the SF-424, call Grants.gov Customer Service Hotline at 800-518-4726, email rnpport@grant5.gov, or consult the Grants.gov Applicant User Guide at bl!ps://www.grants.gov[bltlQ. [btmllbJ1ilifGet Started[Get Started.him. See "How to Apply/Application Submission" on page 14 of this guide for more information. For technical assistance with submitting the online application via the COPS Office website, please call 800-421· 6770 or send questions via e-mail to AskCQm>R<;;@J.lsdoj,gov. See "How to Apply/Application Submission" on page 14 of this guide for more information.
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Deadline: Application
All completed applications must be submitted by July 10 2017 at 7:59 p.m. EDT. Please see "How to Apply/Application Submission" for more information. Applications for this program must be submitted in two parts. First, applicants must apply online via www.mnts.goy to complete the SF-424. Applicants will then be directed to the COPS Office website
(www.cops.usdoj,gov) to complete the second part of the application by July 10 2017 at 7:59 p.m. EDT.
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Eligibility Requirements
FY 2017 CAMP is a competitive award program, with a focus on advancing public safety by providing funds to investigate illicit activities related to the manufacture and distribution of methamphetamine. CAMP provides funding directly to state law enfor.cement agencies in states with high seizures of precursor chemicals, finished methamphetamine, laboratories, and laboratory dump seizures for the purpose of locating and investigating illicit activities, including precursor diversion, laboratories, or methamphetamine traffickers. Only state law enforcement agencies authorized by law or by a state agency to engage in or to supervise anti-methamphetamine investigative activities are eligible to apply for funding. Additional consideration will be given to agencies participating in anti-methamphetamine task forces with multljurisdictional reach and interdisciplinary team structures. FY 2017 CAMP does not have a local match requirement. For additional information, please contact the COPS Office Response Center at 800-421-6770 or send questions via e-mail to AskCo~~doj.gov.
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Program-Specific Information
All awards are subject to the availability of appropriated funds and any modifications or additional requirements that may be imposed by law.
This solicitation is being announced as an open competition targeted at state law enforcement agencies authorized by law or by a state agency to engage in or to supervise anti-methamphetamine investigative activities. Funding is limited, and this solicitation is expected to be very competitive. Approximately $7,000,000 in funding may be available for FY 2017 CAMP, and a maximum of$1,500,000 may be awarded to each recipient. Strong applications should demonstrate a multijurisdlctional reach and participation in interdisciplinary team structures (i.e., task forces). Strong applications should also include multiyear state level methamphetamine seizure data to support their proposal. The COPS Office reserves the right to limit awards to one per state at the time of award announcement.
Program goal
FY 2017 CAMP seeks to address the growing problem of methamphetamine abuse by assisting state law enforcement agencies in collaboration with other service providers and stakeholders to
• increase efforts to locate and investigate illicit methamphetamine activities including precursor diversion, laboratories, or traffickers;
• establish new or enhance existing multijurisdictional and interdisciplinary task forces to investigate and lead to the seizure of precursor chemicals, finished methamphetamine, laboratories, and laboratory dump. seizures;
• increase the use of community policing strategies during the investigation phase (including problem solving, partnerships, and organizational changes) to reduce the manufacture, distribution, and use of methamphetamine;
• increase anti-methamphetamine collaboration efforts during investigations with federal, state, local, and/or tribal partners involved in prevention, intervention and treatment, identification of drug endangered children, and enforcement activities.
Length of award term, maximum federal share, and local share requirements
All awards will have a performance period of two years (24 months) in duration, and there is no local match required.
The COPS Office will review reasonable requests made for no-cost time extensions in the event that all funds granted have not been expended within the two-year award period. CAMP recipients will be provided an opportunity to extend approximately 90 days prior to the award end date. Any extensions granted will be for time only and not for additional funding. Please be advised that all extension requests must be received by the COPS Office prior to the official award end date.
At present, this is a one-time funding opportunity and the COPS Office expects that all items, personnel, and/or training requested will be purchased or hired and the project implemented within the award period.
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The COPS Office statutory nonsupplanting requirement mandates that CAMP funds be used to supplement (increase) the recipient's budget and may not supplant (replace) state, local, or Bureau of Indian Affairs funds that a recipient would otherwise have spent on sworn officer positions in the absence of the CAMP award.
Federal funding: Allowable and unallowable costs
All items requested will be considered on a case-by-case basis during the budget review process. Items under the program must be purchased using the legislative guidelines established by the appropriations legislation that governs this funding. In addition, each item requested must programmatically link to the activities described in your application. To the greatest extent practical, all equipment and products purchased with these funds must be American-made.
Allowable costs: Fundable requests
Applications should include a clear and demonstrated plan for implementing comprehensive antimethamphetamine strategies. Each award application must explain how the proposed project would fit into an overall effort to increase and/or enhance methamphetamine investigation efforts. Budget.requests may be made in the categories described in the following sections.
Sworn officer positions (salaries and benefits)
Sworn officer salary and fringe benefits apply to new, full-time sworn career law enforcement officers not already funded in the applicant's local budget. A "career law enforcement officer" is a person hired on a permanent basis who is authorized by law or by a state, local, or tribal agency to engage in or oversee the prevention, detection, and/or invesiigation of violations of criminal la':"s. Officers must be hired on or after the award start date, and positions must directly relate to the CAMP project. Officers previously employed by your agency may be re-hired using CAMP award funds. If current personnel are redeployed into this program, they must be paid with local funds. COPS Office award funds may be used to backfill the resulting vacancy with newly hired personnel for an equivalent amount of time. [Please note: Overtime for sworn officers engaging in CAMP-related activities is an allowable cost; however, any overtime expenses requested for sworn officer positions must be listed in the "Other Costs" section of your application's budget. Overtime expenses must exceed the expenditures that your agency is obligated or funded to pay in its current budget.]
Civilian/Non-sworn personnel (salaries and benefits)
Civilian salary and fringe benefits apply to new personnel not already funded in the applicant's local budget. Staff must be hired on or after the award start date, and positions must directly relate to the CAMP project. Examples of allowable personnel and fringe benefits costs include those for civilian CAMP project coordinators or antimethamphetamine/drug problem analysts.
Equipment/Technology
Equipment and/or technology costs shall provide agencies with the ability to purchase new or enhance existing equipment exclusively related to methamphetamine investigations. All items requested must be clearly linked to the enhancement or implementation of the CAMP project.
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Supplies
Generally, supplies include any materials that are expended or consumed during the course of the CAMP project. Such costs may include training manuals, paper, printer ink, pens, postage, etc.
Travel/Training
Travel/training costs include award-related travel costs for the recipient or other (non-recipient) individuals to attend CAMP-related training and technical assistance conferences, seminars, or classes or to visit a site specified in the application. Expenses for transportation, lodging, meals, and incidental expenses (if travel is more than 50 miles from the program location) and temporary dependent care costs will be reviewed in accordance with applicable guidelines as part of the application process.
Contracts/Consultants
Consultant expenses and contracts include goods or services that directly contribute to the implementation or enhancement of the project. The use of a consultant should be more economical than direct employment. Contract/consultant costs may include costs to provide one-time training to staff for equipment operation/usage and contracting/consulting services that provide such things as needs analysis, installation, and testing. Compensation for individual consultant services procured under a COPS Office award must be reasonable and allocable in accordance with 0MB cost principles and consistent with that paid for similar services in the marketplace. Unless otherwise approved by the COPS Office, consultant rates will be based on the salary a · consultant receives from his or her primary employer, as applicable, up to $650 per day. For consultant or contractor rates that exceed $650 per day, the COPS Office requires written justification if the consultants or contractors are hired through a noncompetitive bidding process, and recipients must receive COPS Office approval of those rates before drawing down funds. Determinations will be made on a case-by-case basis.
Other costs
Other costs may include such items as software and prepaid warranties or maintenance agreements (not to exceed 24 months), overtime costs for sworn officers engaging In CAMP-related investigative activities, or other miscellaneous items that have a direct correlation to the overall success of a recipient's project objectives and are necessary for the project to reach full implementation.
Applicants must provide sufficient explanation for items requested via the "Budget Narrative" section of this application. Applicants will be notified of any points of clarification the COPS Office may require. Requests may be made only for items or positions that are not otherwise budgeted with state, local, or Bureau of Indian Affairs (BIA) funds and would not be funded in the absence of this COPS Office award.
In addition, any publication material developed and/or purchased with federal award funds must contain the following designation: "This project was supported by Award Number_ awarded by the U.S. Department of Justice, Office of Community Oriented Policing Services. The opinions contained herein are those of the author(s) and do not necessarily represent the official position or policies of the U.S. Department of Justice. References to specific agencies, companies, products, or services should not be considered an endorsement by the author(s) or the U.S. Department of Justice. Rather, the references are illustrations to supplement discussion of the issues."
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Unallowable costs: Requests will NOT be funded
The items listed below are generally considered to be unallowable and may only be funded under extremely limited and extenuating circumstances and at the discretion of the COPS Office based on clear demonstration of a direct link between the requested Item and the applicant's CAMP project. Before including any of these items in your project proposal, please contact the COPS Office Response Center at 800-421-6770.
This is not an exhaustive list, and items not listed below will·be reviewed on a case-by-case basis. The COPS Office reserves the right to deny funding for items that may not be included on this list. Agencies are expected to request items that show a direct link between the requested item and the applicant's CAMP project. All requests must contribute directly to the specific purpose of the award project and relate to the parameters stipulated in the appropriations language enacted for FY 2017.
Requests for reimbursement of items purchased or expenses incurred prior to the award start date will not be funded.
Personnel
• Salaries and benefits of existing employees • Salaries and benefits of award writers or other staff who do not directly contribute to the implementation of
the program • Salaries and benefits for personnel engaged in prosecution
Please note: Restrictions on overtime costs are listed under "Supplies and Other Costs."
Equipment/Technology
• Armored vehicles • Bicycles • Body wire equipment • Bulletproof vests and accessories • Bunker shield(s) • Cellular or satellite phone airtime • Clandestine drug laboratory cleanup equi'pment • Communications towers • Construction and renovation costs • Dictation systems • Fitness equipment • General police vehicles (including patrol cars and leased vehicles) • Handcuffs, weapons, and ammunition (including training ammunition) • Incentives for research and/or participation in program activities • Office equipment (copiers, fax machines, etc.) • Pagers (including service time) • Phone lines and voice-mail systems • Prisoner transport vehicles • Radar guns/equipment • Standard issue police vehicle equipment (including light bars, cages, and siren packages)
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• Televisions /VCRs/DVD players/projectors • Trinkets and other conference takeaways • Unmanned aircraft systems (also commonly referred to as unmanned aerial vehicles or "drones"} • Weaponized aircraft and vessels and weaponized vehicles of any kind
Travel/Training
• Local travel costs (lodging, meals, per diem, or transportation costs} within a SO-mile radius of the program location
• Mileage reimbursement, rental cars, parking fees, and/or taxi fare for local travel • Meals and/or refreshment costs associated with meetings • Training in topics that are not directly linked to the CAMP award
Contracts/Consultants
• Any consultant fees in excess of $650 per day must receive prior written approval from the COPS Office, contingent upon written justification by the recipient, If the consultant or contractor is hired through a noncompetitive bidding process
• Contractual agreements that cannot be directly linked to the CAMP award • Maintenance and/or service contracts that extend the life of the award period (multi-year contracts and
extended warranties are allowable but must be paid in full within the initial award period}
Supplies and other costs
• Animals • Clandestine laboratory cleanup costs • Education and awareness campaigns • Evaluation Costs • Indirect costs • Overtime for civilian positions • Overtime for personnel not directly involved in the department's project • Funding for buy-back and/or confidential informant purposes • Office furniture (desks, file cabinets, etc.} • Office rental/lease space • Standard office supplies not directly related to the CAMP award • Standard or dress uniforms or uniform accessories • Subawards • Treatment programs • Vehicle repair/maintenance/fuel
This program will not provide funding for any positions or items that are funded in the applicant agency's budget with other sources of funding (state, local, or BIA}. You may apply only for otherwise unfunded positions or items to supplement your agency's law enforcement budget.

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Prohibited and Controlled Equipment:
COPS Office funds may not be used to purchase items listed at: https:LLwww,!!ja.govLpublicatiom;. /!EEWG Report Final.pjlf.
This controlled purchase list represents items controlled under the Executive Order on "Federal Support for Local Law Enforcement Equipment Acquisition" that was signed on January 16, 2015. Pursuant to Executive Order 13688 (Federal Support for Local Law Enforcement Equipment Acquisition), a federal lnteragency working group has been charged with, developing a consistent government-wide list of controlled equipment allow-able for acquisition by LEAs, as well as a list of those items that can only be transferred with special authorization and use limitations.
No items'on this list can be purchased without first submitting a detailed justification that supports the need for this equipment. Applicants must show both extraordinary and exigent circumstances that require the purchase of such equipment. The requested item must be an allowable cost under the program. Recipients are strongly encouraged to submit this justification at the time of application. In particular, any justification that cannot show the exigent nature of the purchase and why it could not be submitted at time of application may not be approved.
Over the past several years, the COPS Office has provided funds in concert with the Drug Enforcement Administration (DEA) to support state and local law enforcement agencies with services necessary for the cleanup of hazardous waste seized during clandestine methamphetamine laboratory investigations. While the FY 2017 COPS Anti-Methamphetamine Program does not allow for the funding of clandestine laboratory cleanup activities, state and local law enforcement agencies may contact the DEA for assistance with properly and safely disposing of hazardous waste from clandestine laboratory sites. For further information and assistance in clan-lab cleanup activities, please contact the DEA at 202-307-4724.
Monitoring, reporting, and evaluation requirements
Federal law requires that law enforcement agencies receiving federal funding from the Federal Government must be monitored to ensure compliance with their award conditions and other applicable statutory regulations. The COPS Office is also interested in tracking the progress of our programs and the advancement of community policing. Both aspects of award implementation-compliance and programmatic benefits-are part of the monitoring process coordinated by the U.S. Department of Justice. Award monitoring activities conducted by the COPS Office include site visits, enhanced office-based grant reviews, alleged noncompliance reviews, financial and programmatic reporting and audit resolution. If awarded funds, you agree to cooperate with and respond to any requests for information pertaining to your award in preparation for any of the above-referenced award monitoring activities.
Awarded agencies will be responsible for submitting Programmatic Progress Reports and Federal Financial Reports on a quarterly basis. Additionally, awarded agencies will be responsible fort.he timely submission of a final Closeout Report and any other required final reports. All COPS Office recipients will be required to participate in such award monitoring activities of the U.S. Department of Justice including, but not limited to, the COPS Office, the Office of the inspector General, or any entity designated by the COPS Office.
Please note that the COPS Office may take a number of monitoring approaches, such as site visits, enhanced officebased grant reviews, alleged noncompliance reviews, and periodic surveys to gather information and to ensure compliance. The COPS Office may seek information including, but not limited to, your agency's compliance with nonsupplanting and both programmatic and financial requirements of the award, and your agency's progress

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toward achieving your community policing strategy. Program and Monitoring Specialists as well as auditors are particularly interested in confirming that the purchase of items and/or services is consistent with the applicant's approved award budget as reflected on the Financial Clearance Memo and Final Funding Memorandum.
Though a formal assessment is not a requirement, awarded agencies are strongly encouraged to conduct an independent assessment of their respective award-funded projects. Project evaluations have proven to be valuable tools in helping departments identify areas in need of improvement, providing data of successful processes and reducing vulnerabilities.
Reporting
If awarded, recipients will be required to electronically submit their financial reports using the SF-425 form by the 30th day following the end of each calendar quarter, and a final report is due 90 days following the award end date. Recipients who do not submit SF-425 reports by the due date will be unable to drawdown funds.
In addition, if awarded, recipients will be required to electronically submit quarterly progress reports and a final progress report. The COPS Office will notify the recipient when the progress report is due and provide instructions for submission.
Please feel free to contact the COPS Office Response Center at 800-421-6770 to discuss any questions or concerns you may have regarding the.monitoring, reporting, and evaluation requirements.

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Performance Measures

To assist in fulfilling the U.S. Department of Justice's responsibilities under the Government Performance and Results Act Modernization Act (GPRA Modernization Act of 2010, P.L. 111-352, recipients who receive funding from the Federal Government must measure the results of work that funding supports. This Act specifically requires the COPS Office and other federal agencies to set program goals, measure performance against those goals, and publicly report progress in the form of funding spent, resources used, activities performed, services delivered, and results achieved.

Performance measures for CAMP are as follows:

: . Objective

.T\;l'~rfPI!)\~oce ineasures

.D'dal'J'.;,Yniie··c::1.·-p/1,·e. r-.it prov,d, _es.<

Increase the capacity of law enforcement agencies to implement community policing strategies that strengthen partnerships for safer communities and enh_ance law enforcement's capacity to prevent, solve, and control crime through funding for personnel, equipment, and

To what extent has COPS Office award funding (e.g., officers, equipment/training, technical assistance) increased your agency's community policing capacity? To what extent have COPS Office knowledge resources (e.g., training or publications) increased your agency's community policing

Periodic progress reports providing an overview of COPS AntiMethamphetamine Program award purchases/implementation and implementation of community policing strategies.

training, ······-------·-· ... ___ _capacity? -- -- - -· -

COPS Office_ awards target increasing recipient capacity to implement community policing strategies within the three primary elements of community policing: (1) problem solving; (2) partnerships; and (3) organizational transformation. The COPS Office requires all CAMP applicants to describe how the personnel, technology, equipment, and/or training requested will assist the applicant in implementing community policing strategies. For more information on community policing, please go to the COPS Office website at 1,11ww.c_Q~s.usdo],ltQJ!.

As part of the programmatic progress report, CAMP recipients be required to report on their progress toward implementing community policing strategies. Based on the data collected from recipients, the COPS Office may make improvements to CAMP to better meet the program's objective and law enforcement agency needs.

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How to Apply/Application Submission

,'Primary Step's Required to Complete Application

Complete?

..

.

If necessary, request an ORI through the COPS Office Response Center at AskCopsRC@usdoj.gov or 800-

D

421-6770.

If you have not renewed your COPS Office Account Access information since November 15, 2013, contact

D

the COPS Office Response Center at

AskCopsRC@usdoj.gov or 800-421-6770.

Register with Grants.gov/Confirm registration.

D

Obtain a DUNS number/Confirm DUNS number.

D

Register with SAM database/Confirm SAM number.

D

Complete SF-424 on Grants.gov (funding number:

D

CO PS-AHTF-Applicati o n-2017 ).

Upon receipt of an e-mail from the COPS Office

D

confirming successful submission of the SF-424 on

Grants.gov, complete th'e second part of the

application on the COPS Office Online Application

System.

<, ,{,, .

Electronic submission of the SF-424 in two parts via Grants.gov and the COPS Office website

Please read the following important information before attempting to submit your application via the COPS Office website:
• Completing a CAMP application is a two-step process. Applicants are first required to register via WWIIJ!o&rants_,gQl( and complete an SF-424. The Grants.gov funding code for this solicitation Is COPS-CAMPApplication-2017. Once the SF-424 has been submitted, applicants will receive an e-mail from the COPS Office with instructions on completing the second part of the CAMP application through the COPS Office Online Application System. If you have not renewed your COPS Office Account Access information, contact the COPS Office Response Center at /',skC.imsRC@usdoj.gov or 800-421-6770.
• It is strongly recommended that applicants register immediately on Grants.gov. In addition, applicants are strongly encouraged to complete the SF-424 as quickly as possible. Any delays in registering with Grants.gov or submitting the SF-424 may result in insufficient time for processing your application through Grants.gov or the COPS Office Online Application System. An application is not considered submitted until you have submitted your SF-424 on Grants.gov and the second part of the application on the COPS Office website.
• Confirmation of submission: After completing the second part of the application and clicking "Submit," applicants will receive a message stating "Your application has been successfully recorded." The confirmation page will also provide the submission date, ORI, confirmation number, and program ·type.
• For technical assistance with submitting the SF-424, call the Grants.gov Contact Center at 800-518- 4726 oremail SJ!lmort@J;i.rants.gov. For assistance with submitting the application through the COPS Office Online Application System, please call the COPS Office Response Center at 800-421-6770 or send questions via email to AskCopsRC@umQJ,gov.

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• To apply for funding, applicants must have a DUNS number (DUNS numbers are required of all agencies requesting federal funding) and have an active registration with the System for Award Management (SAM) database.
• Applicants must comply with any word and/or field limit requirements described in the COPS Office Application Guide.
• Applicants will have the opportunity to print a copy of th.e application prior to submission and another copy of the application after it has been submitted, Please note that the application package cannot be submitted until all required fields have been completed. Note: If Internet access is not available to print a copy of the application package, contact the Response Center at 800-421-6770 to request that a printed copy be sent to you.
• Applicants will be able to print a copy of the application package only for reference while completing the application oniine via the COPS Office website. The COPS Office will not accept applications submitted via mail or e-mail.
• Do not wait until the application deadline date to begin the application process through the COPS Office website. The registration steps may take several days to complete, and if you wait until the application deadline date you may be unable to submit your application online.
In addition, all applicants are required to maintain current registrations in the System for Award Management (SAM) database. SAM replaces the Central Contractor Registration (CCR) database as the repository for standard information about federal financial assistance applicants, recipients, and subrecipients. The U.S. Department of Justice requires that all applicants (other than individuals) for federal financial assistance maintain current registrations in the SAM database. Applicants must update or renew their SAM registration annually to maintain an
active status.
Applicants that were previously registered in the CCR database must at a minimum
• create a SAM account;
• log in to SAM and migrate permissions to the SAM account (all the entity registrations and records should already have been migrated).
Applicants that were not previously registered in the CCR database must register in SAM prior to registering in Grants.gov. Information about SAM r,egistration procedures can be accessed at www.sam,llQJ1.
Obtaining a Data Universal Numbering System (DUNS) number
The Federal Government requires that all applicants for federal awards and cooperative agreements, with the exception of individuals other than sole proprietors, have a Data Universal Numbering System (DUNS) number prior to application submission. The DUNS number is used to identify related organizations that are receiving funding under awards and cooperative agreements and to provide consistent name and address data for electronic award application systems. A DUNS number may be obtained by telephone at 866-705-7511 or via the Internet at fedgQv.dnb.com/webform.

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Data Universal Numbering System {DUNS) number
• The DUNS number is a unique nine- or thirteen-digit identification number provided by Dun & Bradstreet {D&B).
• The DUNS number is site-specific. Therefore, each distinct physical location of an entity {such as branches, divisions, and headquarters) may be assigned a DUNS number. Organizations should try to keep DUNS numbers to a minimum. In many instances, a central DUNS number with a DUNS number for each major division/department/agency that applies for an award may be sufficient.
• You should verify that you have a DUNS number or take the steps needed to obtain one as soon as possible, if there is a possibility you will be applying for future federal awards or cooperative agreements. There is no need to wait until you are submitting a particular application.
• If you already have a DUNS number. If you, as the entity applying for a federal award or cooperative agreement, previously obtained a DUNS number in connection with the federal acquisition process or requested or had one assigned to you for another purpose, you' should use that number on all of your applications. It is not necessary to request another DUNS number from D&B. You may request D&B to supply a family-tree report of the DUNS numbers associated with your organization. Organizations should work with D&B to ensure the right information is on the report. Organizations should not establish new numbers, but use existing numbers and update or validate the information associated with the number.
• If you are not sure whether you have a DUNS number, call D&B using the toll-free number 866-705-5711 and indicate that you are a federal award applicant or prospective applicant. D&B will tell you if you already have a number. If you do not have a DUNS number, D&B will ask you to provide the information listed below and will immediately assign you a number, free of charge.
To obtain your DUNS number
• The requester may obtain a DUNS number via the Internet at fedgov.dnb.com/webform. • The requester may also obtain a DUNS number via telephone at 866-705-5711. The phone is staffed from
8:00 a.m.to 6:00 p.m. {local time of the caller when calling from within the contiguous United States). Calls placed to the above number outside of those hours will receive a recorded message requesting the caller to call back between the operating hours. The process to request a number takes about 5-10 minutes. A DUNS number will be assigned at the conclusion of the call. You will need to provide the following information: • Legal name • Headquarters name and address for your organization • Doing business as {DBA) or other name by which your organization is commonly known or recognized • Physical address, city, state, and ZIP code • Mailing address {if separate from headquarters and/or physical address) • Telephone number • Contact name and title • Number of employees at your physical location

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Managing your DUNS number
• D&B periodically contacts organizations with DUNS numbers to verify that their information is current. Organizations with multiple DUNS numbers may request a free family tree listing from D&B to help determine what branches or divisions have numbers and whether the information is current. Please call the dedicated toil-free DUNS number request line at 866-705-5711 to request your family tree.
• D&B recommends that organizations with multiple DUNS numbers have a single point of contact for controlling DUNS number requests to ensure that the appropriate branches or divisions have DUNS numbers for federal purposes.
• As a result of obtaining a DUNS number you have the option to be included on D&B's marketing list that is sold to other companies. If you do not want your name or organization included on this marketing list, request to be de-listed from D&l3's marketing file when you are speaking with a D&B representative during your DUNS number telephone application.
Obtaining a DUNS number is absolutely free for ail entities doing business with the Federal Government. This includes award and cooperative agreement applicants or prospective applicants and federal contractors. Be certain to identify yourself as a federal award applicant or prospective applicant.
Registering with the System for Award Management (SAM)
Applicants for ail federal awards are required to register with the System for Award Management (SAM). If your organization already has an Employer identification Number (EIN), your SAM registration will take up to two weeks to process. if your organization does not have an EIN, then you should allow two to five weeks for obtaining the information from the IRS when requesting the EIN via phone, fax, mail, or Internet. Follow the steps listed below to register in the SAM:
To register in SAM, follow the next steps:
Step 1.
Obtain a DUNS number at l'l/Jl!LW.dnb.c.om/us/ or call 866-705-5711.
Step 2.
Access the SAM on line registration through the SAM home page at ww.sam.gQY and follow the online instructions for new SAM users.
Step 3.
Complete and submit the online registration. If you already have the necessary information on hand, the on line registration takes approximately 30 minutes to complete, depending upon the size and complexity of your business or organization. Please note that organizations must update or renew their SAM registration at least once
a year to maintain an active status.
To migrate your legacy system user account from Central Contractor Registration (CCR), Fed Reg, ORCA, or EPLS, you must first create a personal account in SAM by clicking on "Create an Account" on the homepage. An individual account is required to manage entity registrations in SAM. You will not be able to manage your registration unless you create a system account in SAM. Once you validate that you have access to the e-mail

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address you provided during the registration process and login, you will see a message on the user dashboard (My SAM) that will ask you, "Would you like to migrate a legacy system account?" Click "Yes" to begin the migration process. Alternatively, you may click on "Manage My User Roles," then on "Migrate Legacy Account" link to begin · the migration process. The roles you had with the legacy system will be mapped to your SAM account.
To update your entity's SAM registration, follow the next steps:
Step 1.
Go to the SAM homepage (www.sarn,gov), enter yam username and password, and then click the "Log In" button.
Step 2.
Select "Complete Registrations" under Registration/Update Entity" in the left navigation pane.
Step 3.
Select the entity record that you want to update and click the "Update" button.
For more details on updating your registration, please refer to the SAM User Guide, available at l!l[WW.~.m.gov.
If awarded funds, your agency must maintain the currency of your information in the SAM until you submit the final financial report required under this award or receive the final payment, whichever is later. This requires that you review and update the Information at least annually after the initial registration, and more frequently if required by changes in your Information or another award term.
To review the System for Award Management and Universal Identifier Award Term, please see appendix Don page 66 of this guide.
Geographic Names Information System (GNIS) ID number
The Geographic Names Information System (GNIS) database is maintained by the U.S. Geological Survey, U.S. Department of the Interior. The database assigns a unique, permanent feature identifier, the feature ID, which is the only standard federal key for integrating or reconciling feature data from multiple datasets.
To determine your jurisdiction's feature ID number, follow these steps: • Go to httl?£1Lggonames.usg~ov and click on "Search Domestic Names." • From this screen, you can enter the name of your jurisdiction (for example, "Cleveland"). • Select your state ("Ohio"). • Click "Send Query." (The results will show that Cleveland, Ohio, is a populated place with a feature ID of 1066654.) • Enter this seven-digit number into your application form. Some jurisdictions may have feature IDs of less than seven digits; for example, American University is a school in the District of Columbia with a feature ID of 531560. In this case, you should place a "O" in front of the number to ensure that seven digits are entered into the application form (e.g., 0531560).

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Dead line/Application period
The application period for 2017 CAMP begins May 22, 2017. All applications must be submitted by July 10, 2017, at 7:59 p.m. EDT. Applications submitted after July 10, 2017, at 7:59 p.m. EDT will not be considered for funding.
Helpful online resources
DUNS Number Information: fedgov,dnb.com.JwebformLdisplayJiomePage.do
System for Award Management (SAM): www.sam.gov
Audit requirement
The Uniform Administrative Requirements, Cost Principles, and Audit Requirements for Federal Awards at 2 C.F.R. Part 200, Subpart F -Audit Requirements, available Jmps;L[wwlll(,~/~i-bin/texJ.: idx?tp1=/ecfrbrowseLJltle02/Jcfr200 main 02.tpl, establish the requirements for organizational audits that apply to COPS Office recipients. Recipients must arrange for the required organization-wide (not award-by-award) audit in accordance with the requirements of Subpart F.
Civil rights
All recipients are required to comply with nondiscrimination requirements contained in various federal laws. A memorandum addressing federal civil rights statutes and regulations from the Office for Civil Rights, Office of Justice Programs will be included in the award package for recipients. All applicants should consult the Assurances form to understand the applicable legal and administrative requirements.
Please be advised that a hold may be placed on this application if it is deemed that the applicant agency is not in compliance with federal civil rights law and/or is not cooperating with an ongoing federal civil rights investigation.

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Section 508 of the Rehabilitation Act
If you are an applicant using assistive technology and you encounter difficulty when applying using the COPS Office on line system {y,ww.co~s.usdoj,gov), please contact:
Donte Turner U.S. Department of Justice, COPS Office 202-616-9427 or Donte.Turner@usdoj.gov
The department Is committed to ensuring equal access to all applicants and will assist any applicant who may experience difficulties with assistive technology when applying for awards using the COPS Office on line system.
Award terms arid conditions/Funding restrictions
The following section describes all of the compliance terms and conditions that applicants should be aware of before applying to COPS Office programs. The table on page 21 further defines which of the legal requirements are applicable to the program for which you are applying. Please review each section carefully. The signatures of the applicant's Authorized Organizational Representative, Law Enforcement Executive/Program Official, and Government Executive/Financial Official on section 17: Reviews and Certifications assure the COPS Office that your agency will comply with all legal and administrative requirements that govern the applicant for acceptance.

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= = Key: Y Yes; N No;
'.)=v2017 Program . ' . Assurances

.. . /i ·•

.. .

Certifications

Disclosure of Lobbying Activities

Supplementing, Not Supplanting

Sole Source Justification

Criminal Intelligence Systems

Certification to Mitigate Possible Adverse Health Safety & Environment Impacts

Community Policing Self Assessment Tool (CP-SAT) (if applicable)

System for Award Management (SAM) and Universal Identifier Requirements

Federal Funding Accountability and Transparency Act (FFATA) - Reporting Subaward and

Executive Compensation

Contract Provisions

Prior Approval Planning and Reporting of Conference/Meeting/Training Costs

Curriculum Development

Restriction oli Internal Confidentiality Agreements

Mandatory Disclosure

Debarment and Suspension

Recipient Integrity and Performance Matters

False Statements

Duplicative Funding

Additional High-Risk Recipient Requirements

Modification

Evaluations

Allowable Costs

Local Match

Equal Employment Opportunity Plan

Employment Eligibility

Whistleblower Protection

Federa I Civil Rights

Conflict of Interest

.

Reports/Performance Goals

Extensions

Computer Network Requirement

Award Monitoring Activities

Community Policing

Retention

Contracts and/or MO Us with Other Jurisdictions

Travel Costs

State Information

Public Release Information

News Media

Paperwork Reduction Act

Copyright

Human Subjects Research

Compliance with 8 U.S.C. 1373

. CAMP
y y y y y
y
N N y y
y y
N
y y y y y y· y y y y
N ·y y y y y y y y
y y
N
y y y
N N
y
N N
y

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I. & II. Assurances and Certifications (also refer to section 15 on page 51 of this
application guide and Standard Application forms.)
Applicants to COPS Office programs are required to sign the standard Assurances and Certifications forms. Signing these documents assures the COPS Office that you have read and understood and that you accept the terms and conditions as outlined In the Assurances and Certifications. Please read these documents carefully, as signatures on these documents are treated as material representation of fact upon which reliance will be placed when the U.S. Department of Justice determines to make an award.
Ill. Disclosure of [obbying Activities (also refer to section 16 on page 51 of this Application Guide and Standard Application forms,)
This disclosure form shall be completed by the reporting entity, whether subrecipient or prime federal recipient, at the initiation or receipt of a covered federal action, or a material change to a previous filing, pursuant to title 31 U.S.C. § 1352. The filing of a form is required for each payment or agreement to make payment to any lobbying entity for influencing or attempting to influence an officer or employee of any agency, a member of Congress, an officer or employee of Congress, or an employee of a member of Congress in connection with a covered federal action. Complete all items that apply for both the initial filing and material change reports. Refer to the implementing guidance published by the Office of Management and Budget for additional information.
If this applies to your agency, you are required to complete the disclosure form in section 16 of the application. If you need to complete and submit additional forms, please complete and submit them as attachments to your application online.
IV. Nonsupplanting requirement
The COPS Office nonsupplanting requirement mandates that award funds not be used to replace state or local funds (or, for tribal recipients, BIA funds) that would, in the absence offederal assistance, be made available for award purposes (hiring, training, purchases, and/or other activities). Instead, award funds must be used to increase the total amount of funds that would otherwise be made available for award purposes.
An award recipient may not use COPS Office funds to pay for any item or cost associated with this funding request that the recipient is already obligated to pay. Nonfederal funds allocated to pay for award purposes, may not be reallocated to other purposes or refunded should COPS Office funding be awarded. Nonfederal funds must remain available for and devoted to that purpose, with COPS Office funds supplementing those nonfederal funds. Funding awarded cannot be obligated until after the award start date (unless an exception is authorized in writing by the COPS Office). This means that COPS Office funds cannot be applied to any agency.cost incurred prior to the award start date.
The possibility of supplanting will be the subject of careful application review, possible pre-award review, and postaward monitoring and audit. Any supplanting of nonfederal funds by COPS Office award funds may be grounds for potential suspension.
If you have questions concerning the nonsupplanting requirement while completing this application, please contact the COPS Office Response Center at 800-421-6770 or AskCopsRC@ufil!Qj.gQY for further information.

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V. Procurement and sole source justification
Sole source, or procurement by noncompetitive proposals, is procurement through solicitation of a proposal from only one source. Sole source procurements must adhere to the standards set forth in the Uniform Administrative Requirements, Cost Principles, and Audit Requirements for Federal Awards, 2 C.F.R. § 200.318, as adopted by the U.S. Department of Justice in 2 C.F.R. § 2800.101.
For the purchase of equipment, technology, or services under a COPS Office award, recipients must follow their own policies and procedures on procurement as long as those requirements conform to the federal procurement requirements set forth in 2 C.F.R. § 200.320 as adopted by the U.S. Department of Justice in 2 C.F.R. § 2800.101. A sole source justification request should be submitted if a recipient determines that the award of a contract through a competitive process is infeasible. If a recipient determines that the award of a contract through a competitive process is infeasible, and if one of the following circumstances applies-(1) the item or service is available only from one source; (2) the public exigency or emergency for the requirement will not permit a delay resulting from competitive solicitation; (3) competition is determined inadequate after solicitation of a number of sources. Based on one or more of the circumstances above, the COPS Office expressly authorizes noncompetitive proposals in response to a written request from the law enforcement entity-the award recipient must seek written authorization from the COPS Office for sole source procurements in excess of $150,000. Written approval for sole source procurements from the COPS Office must be received prior to purchasing equipment, technology or services; obligating funding for a contract; or entering into a contract with award funds.
Requests for sole source procurements of equipment, technology, or services in excess of $150,000 must be submitted to the COPS Office in writing certifying that the award of the contract through full and open competition ls infeasible. The sole source request must be prepared on department letterhead,
The request should also include the following information:
Section I-A brief description of the project, the amount to be designated for the sole source procurement, and the purpose of the contract,
Section II -A statement Identifying which one (or more) of the four circumstances identified below apply to the procurement transaction and an explanation as to why it is necessary to contract in a noncompetitive manner. Include supporting information as identified below under the applicable section(s).
1. The item or service is available only from one source.
• Uniqueness of Items or services to be procured from the proposed contractor or vendor (compatibility, patent issues, etc.)
• How the agency determined that the item or service is only available from one source (market survey results, independent agency research, patented or proprietary system, etc.)
• Explanation of need for contractor's expertise linked to the current project (knowledge of project management, responsiveness, experience of contractor personnel, prior work on earlier phases of project, etc.)
• Any additional information that would support the case
2. The public exigency or emergency for the requirement will not permit a delay resulting from competitive solicitation.
• When the contractual coverage is required by your department and why

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• Impact on project if deadline dates are not met • How long it would take an alternate contractor to reach the same required level of competence (equate to
dollar amounts, if desired) • Any additional information that would support the case 3. The COPS Office authorizes noncompetitive proposals in response to a written request from the recipient. 4. Competition is determined inadequate after solicitation of a number of sources.
• Results of a market survey to determine competition availability; if no survey is conducted, please explain why not
• Any additional information that would support the case
Section Ill -A declaration that this action or choice is In the best interest of the agency.
Upon receipt of the request for sole source authorization, the COPS Office will review to determine if competition is infeasible, and your agency will be contacted if any of the identified Information is missing or if additional supporting information is required. If the COPS Office determines that the request does not meet the standards set forth above, the request will be denied.
Please be advised that conflicts of interest are prohibited under the procurement standards set forth in 2 C.F.R. § 200.318 as adopted by the U.S. Department of Justice in 2 C.F.R. § 2800.101.
If you have any questions regarding the federal requirements that guide procurement procedures, please contact the COPS Office Response Center at 800-421-6770.
VI. Criminal intelligence systems/28 C.F.R. Part 23 compliance
If your agency is receiving COPS Office funding for equipment or technology that will be used to operate an interjurisdictional criminal intelligence system, you must agree to comply with the operating principles found at 28 C.F.R. Part 23. An "interjurisdictional criminal Intelligence system" is generally defined as a system that receives, stores, analyzes, exchanges, or disseminates data regarding ongoing criminal activities (such activities may include, but are not limited to, loan sharking, drug or stolen property trafficking, gambling, extortion, smuggling, bribery, and public corruption) and shares this data with other law enforcement jurisdictions. 28 C.F.R. Part 23 contains operating principles for these interjurisdictional criminal information systems which protect individual privacy and constitutional rights.
If you are simply using the COPS Office funds to operate a single agency database (or other unrelated forms of technology) and will not share criminal intelligen~e data with other jurisdictions, 28 C.F.R. Part 23 does not apply to this award.

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VII. Certification to mitigate possible adverse health, safety, and environmental impacts - Not applicable under any FY17 COPS Office programs
VIII. Community Policing Self-Assessment Tool (CP-SAT) - Not applicable under CAMP
IX. System for Award Management (SAM) and Universal Identifier requirements
Unless exempted from this requirement under 2 C.F.R. § 25.110, the recipients must maintain the currency of their information in the SAM until submission of the final financial report required under this award or receipt of the . final payment, whichever is later. This requires recipients to review and update the information at least annually after the initial registration and more frequently if required by changes in information or other award term.
To review the System for Award Management and Universal Identifier Award Term, please see the appendices of this guide.
X. Federal Funding Accountability and Transparency Act {FFATA) - Reporting subaward and executive compensation information
The Federal Funding Accountability and Transparency Act of 2006 (FFATA) requires, among other things, that information on federal awards (federal financial assistance and expenditures) be made available to the public via a single, searchable website, which Is www,_USASpending.,~.
Applicants should note that all recipients of awards of $25,000 or more under this solicitation, consistent with FFATA, will be required to report award information on any first-tier subawards totaling $25,000 or more and, in certain cases, to report information on the names and total compensation of the five most highly compensated executives of the recipient and first-tier subrecipients. If applicable, the FFATA Subaward Reporting System (FSRS), accessible via the Internet at www.fs!],llQY, is the reporting tool recipients under this solicitation will use to capture and report subaward information and any executive compensation data ·required by FFATA.
The subaward information entered in FSRS will then be displayed on www.USA~end[ng,gov, associated with the prime award, furthering federal spending transparency.
Each applicant entity must ensure that it has the necessary processes and systems in place to comply with the applicable reporting requirements should it receive funding.
To review the FFATA Reporting Subaward and Executive Compensation Award Term, please see the appendices of this guide,
XI. Contract provision under federal award
All contracts made by the recipients under the Federal award must contain the provisions required under 2 C.F.R. part 200, Appendix II to Part 200-Contract Provisions for Non-Federal Entity Contracts Under Federal Awards.
For the full text of 2 C.F.R. Appendix II to Part 200, please refer to the appendices of this guide.

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XII. Prior approval, planning, and reporting of conference/meetings/training costs
Recipients are required to obtain written approval from the COPS Office prior to entering into any contract, agreement or other obligation for costs related to any conference, meeting, retreat, seminar1 symposium, training activity, or similar event funded under this award. For more information on allowable costs, please visit www.Qjp,fillv/jum!ing/confcost.htm.
XIII. Curriculum development - Not applicabl.e under CAMP
XIV. Restrictions on internal confidentiality agreements
Recipients, subrecipients, or entities that receive a contract or subcontract with any funds under this award, may not require any employee or contractor to sign an internal confidentiality agreement or statement that prohibits or otherwise restricts the lawful reporting of waste, fraud, or abuse to an investigative or law enforcement representative of a federal department or agency authorized to receive such information.
XV. Mandatory disclosure
Recipients and subrecipients are required to timely disclose in writing to the COPS Office or pass-through entity, as applicable, all federal criminal law violations involving fraud, bribery, or gratuity that may potentially affect the awarded federal funding. Recipients agree to report certain civil, criminal, or administrative proceedings In SAM, if it received an award with the Term and Condition for Recipient Integrity and Performance Matters as .outlined in 2 C.F.R. Part 200, Appendix XII to Part 200. Failure to make required disclosures can result in any of the remedies, including suspension and debarment, described in 2C.F.R. § 200.338.
XVI. Debarment and Suspension
Recipients agree not to award Federal funds under this program to any party which is debarred or suspended from participation In Federal assistance programs.
XVII. Recipient Integrity and Performance Matters
Recipients that received $500,000 or more in a federal award, agree to comply with the terms and conditions outlined in 2 C.F.R. Part 200, Appendix XII to part 200 - Terms and Condition for Recipient Integrity and Performance Matters.
For the full text, please see the appendices of this guide.
XVIII. False Statements
False statements or claims made in connection with COPS Office awards may result in fines, imprisonment, or debarment from participating in federal awards or contracts, and/or any other remedy available by law.
XIX. Duplicative Funding
Recipients agree to notify the COPS Office if they receive, from any other source, funding for the same item(s) or service(s) also funded under this award.

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XX. Additional High-Risk Recipient Requirements
Recipients agree to comply with any additional requirements that may be imposed during the award performance period if the awarding agency determines that the recipient is a high-risk recipient (Uniform Administrative Requirements, Cost Principles, and Audit Requirements for Federal Awards, 2 C.F.R. § 200.207 as adopted by the Department of Justice in 2 C.F.R. § 2800.101).
XXI. Modifications
Occasionally, a change in an agency's fiscal or law enforcement situation necessitates a change in its COPS Office award. Award modifications are evaluated on a case-by-case basis. All modification requests involving new budget items must be approved, in writing, by the COPS Office prior to their implementation. In addition, please be aware that the COPS Office will not approve any modification request that results in an increase of federal funds.
XXII. Evaluations
The COPS Office may conduct monitoring or sponsor national evaluations of COPS Office award programs. Recipients agree to cooperate with the monitors and evaluators.
XXIII. Allowable Costs
The funding under this award is for the payment of approved costs identified in the Financial Clearance Memorandum (FCM). Recipients may not earn or keep any profit resulting from the award unless expressly authorized, in writing, by the COPS Office.
XXIV. Local Match - Not applicable under CAMP
XXV. Equal Employment Opportunity Plan
Recipients agree to comply with the federal regulations pertaining to the development and implementation of an Equal Employment Opportunity Plan (28 C.F.R. Part 42 subpart E).
XXVI. Employment Eligibility
Recipients agree to complete and keep on file, as appropriate, a Bureau of Citizenship and Immigration Services Employment Eligibility Verification Form (1-9). This form is to be used by recipients of federal funds to verify that persons are eligible to work in the United States.
XXVII. Whistleblower Protection
Recipients agree not to discharge, demote, or otherwise discriminate against an employee as reprisal for the employee disclosing information that he/she reasonably believes is evidence of gross mismanagement of a federal contract or award, a gross waste of federal funds, an abuse of authority relating to a federal contract or award, a substantial and specific danger to public health or safety, or a violation of law, rule, or regulation related to a federal contract (including the competition for or negotiation of a contract) or grant. Recipients also agree to provide to their employees in writing (in the predominant native language of the workforce) of the rights and remedies provided in 41 U.S.C. § 4712. Please see the appendices of this guide for a full text of the statute,

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XXVIII. Federal Civil Rights

As a condition of receipt of federal financial assistance, recipients acknowledge and agree that they will not (and

will

require

any

subreclpient1

contractors,

successors,

transferees,

and

assignees

not

to) 1

on

the

grounds

of

race,

color, religion, national origin, sex, or disability unlawfully exclude any person from participation in, deny the

benefits of, or employment to any person, or subject any person to discrimination in connection with any

programs or activities funded in whole or in part with federal funds. They will also not discriminate in the delivery

of benefits or services based on age. These civil rights requirements are found in the non-discrimination provisions

ofTitle VI of the Civil Rights Act of 1964, as amended (42 U.S.C. § 2000d); the Omnibus Crime Control and Safe

Streets Act of 1968, as amended (42 U.S.C. § 3789d); Section 504 of the Rehabilitation Act of 1973, as amended (29

U.S.C. § 794); the Age Discrimination Act of 1975, as amended (42 U.S.C. § 6101); Title IX of the Education

Amendments of 1972, as amended (20 U.S.C. § 1681); and th.e corresponding U.S. Department of Justice

regulations implementing those statutes at 28 C.F.R. Part 42 (subparts C, D, E, G, and I). They will also comply with

Executive Order 13279, as amended by Executive Order 13559, and the implementing regulations at 28 C.F.R Part

38, Partnerships With Faith-Based and Other Neighborhood Organizations, which requires equal treatment of

religious organizations in the funding process and prohibits religious discrimination against beneficiaries.

XXIX. Conflict of Interest

Recipients must disclose in writing to the COPS Office or pass-through entity, as applicable, any potential conflict of interest affecting the awarded federal funding in accordance with the Uniform Administrative Requirements, Cost Principles, and Audit Requirements for Federal Awards, 2 C.F.R. § 200.112 as adopted by the Department of Justice in 2 C.F.R. § 2800.101.

XXX. Reports/Performance Goals

Recipients are responsible for submitting quarterly programmatic progress reports that describe project activities during the reporting period and quarterly Federal Financial Reports using Standard Form 425 (SF-425). The progress report is used to track recipient's progress toward implementing community policing strategies and to collect data to gauge the effectiveness of increasing your agency's community policing capacity through COPS Office funding.
XXXI. Extensions

Recipients may request an extension of the award period to receive additional time to implement your award program. Such exte.nsions do not provide additional funding. Awards may be extended a maximum of 34 months beyond the initial award expiration date, Any request for an extension beyond 24 months will be evaluated on a case-by-case basis. Only recipients that can provide a reasonable justification for delays will be granted no-cost extensions. Reasonable justifications may include technology implementation delays, procurement challenges, change in administration, staff turnover of key award/award-funded personnel, training delays, hiring and recruitment delays or other circumstances that interrupt the 24-month award funding period. An extension allows recipient to compensate for such delays by providing additional time to complete the full 24 months of funding. Extension requests must be received prior to the end date of the award.·

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XXXII. Computer Network Requirement
Recipients agree that no award funds may be used to maintain or establish a computer network unless such network blocks the viewing, downloading, and exchanging of pornography. Nothing in this requirement limits the use of funds necessary for any federal, state, tribal, or local law enforcement agency or any other entity carrying out criminal investigations, prosecution, or adjudication activities.
XXXIII. Grant Monitoring Activities
Federal law requires that law enforcement agencies receiving federal funding from the COPS Office must be monitored to ensure compliance with their grant conditions and other applicable statutory regulations. The COPS Office is also interested in tracking the progress of our programs and the advancement of community policing. Both aspects of award implementation-compliance and programmatic benefits-are part of the monitoring process coordinated by the U.S. Department of Justice. Grant monitoring activities conducted by the COPS Office include site visits, enhanced office-based grant reviews, alleged noncompliance reviews, financial and programmatic reporting, and audit resolution. Recipients agree to cooperate with and respond to any requests for information pertaining to their award.
XXXIV. Community Policing
Community policing activities to be initiated or enhanced by recipients were Identified and described in their grant application. Recipients develop a community policing plan for the grant with specific reference to a crime or disorder problem and the following elements of community policing: a) problem solving-a recipient's plan to . assess and respond to the problem identified; b) community partnerships and support, including related governmental and community initiatives that complement a recipient's proposed use of funding; and c) organizational transformation-how a recipient will. use the funds to reorient its mission to community policing or enhance its involvement in and commitment to community policing. Throughout the award period recipients are required to implement the community policing plan they set forth In the grant application.
XXXV. Retention - Not applicable under CAMP
XXXVI. Contracts and/or MOUs with Other Jurisdictions
Equipment, technology, training, vehicles, sworn law enforcement officer positions and civilian positions, awarded may only be used for law enforcement activities or services that exclusively benefit the recipient/taskforce and the population that it serves.
XLI 11. Travel Costs
Travel costs for transportation, lodging and subsistence, and related items are allowable under CAMP with prior approval from the COPS Office. Payment for allowable travel costs will be in accordance with 2 C.F.R. § 200.474 . (Uniform Administrative Requirements, Cost Principles, and Audit Requirements for Federal Awards) as adopted by the Department of Justice in 2 C.F.R. § 2800.101.

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XLIV. State Information Technology Point of Contact
Recipients agree to ensure that the appropriate State Information Technology Point of Contact receives written notification regarding any information sharing or technology project funded by a COPS Office award. This is to facilitate communication among local and state governmental entitles regarding various information technology projects being conducted with these award funds, In addition, recipients agree to maintain an administrative file documenting the meeting of this requirement. For a list of State Information Technology Points of Contact, go to http;//jt.ojp.gov/default.aspx?area=_p3lfig,j\ndPractlce&page=l046.
XXXIX. Public Release Information - Not applicable under CAMP
XL. News Media - Not applicable under CAMP
XLI. Paperwork Reduction Act
Recipients agree, if required, to submit all surveys, interview protocols, and other information collections to the COPS Office for submission to the Office of Management and Budget (0MB) for clearance under the Paperwork Reduction Act (PWRA) of 1995.
XLII. Copyright- Not applicable under CAMP
XLIII. Human Subjects Research~ Not applicable under CAMP
XLIV. Compliance with 8 U.S.C. 1373.
To obligate or expend FY 2017 award funding, all State or local government entities must comply with a new grant condition requiring compliance with 8 U.S.C. § 1373 regarding prohibitions or restrictions on sending to, requesting or receiving from, maintaining, or exchanging information on citizenship or immigration status, including any prohibitions or restrictions imposed or established by a State or local government entity or official. This condition applies throughout the grant award period: The full text of this grant condition may be found in the appendices.
Application review information
The COPS Office is committed to ensuring a fair and open process for making awards. The COPS Office will review the application to make sure that the information presented is reasonable, understandable, measurable, achievable, and consistent with the solicitation.
This review will also assess whether costs are reasonable, necessary, and allocable under applicable federal cost principles and agency regulations. This financial review will be conducted by the COPS Office staff or in collaboration with the peer review process.
Peer reviewers will be reviewing the applications submitted under this program that meet eligibility and/or basic minimum requirements. Each program may use either internal peer reviewers, external peer reviewers, or a combination to review the applications under this solicitation. Applications that meet eligibility and basic minimum requirements will be evaluated and ranked by peer reviewers.

Case 3:17-cv-04701-WHO Document 11 Filed 10/13/17 Page 162 of 310
2017 COPS Antl-Methamphetamine Program (CAMP) Application Guide
Peer reviewers will review the applicant's project narrative and evaluate the following: {a) problem identification, {b) current activities, {c) task force participation, {d) collaboration and partnerships, {e) proposed strategies, and {f) budget items requested.
Successful applications will
• identify and describe the problem in detail using relevant facts, statistics, or other supporting information; • comprehensively detail their current investigative activities; • describe their participation, structure, responsibilities, and role in their task force or their plan to establish
one; • describe their current and proposed collaboration efforts with federal, state, local, and/or tribal partners; • provide a budget that is complete, allowable, supports the total cost of the project, and directly relates to
and supports the activities described in the proposal.
Each section of the project narrative will be scored on the following scale:
• 5-Comprehensive. The application provides a thorough discussion of all elements identified for the section with no substantial weaknesses. The discussion is clear, detailed, and supported by the information provided. The information provided clearly supports the information provided in other sections of the application.
• 4-Substantial. The application provides a strong discussion of all key elements identified for the section. The discussion is clear, detailed, and supported by the information provided. A limited number of elements may be incomplete.
• 3-Satisfactory. The application provides an adequate discussion of all key elements identified for the section. The discussion is clear and supported by the information provided. Multiple elements may be incomplete.
• 2-Marginal. The application provides Inadequate discussion of some elements identified for the section. The discussion may be unclear, Jacking in detail, or not supported by the information provided.
• 1-Poor. The application lacks discussion of many elements identified for the section. The discussion provided is unclear, lacking_ in detail, and/or not supported by the information provided.
• 0-Unresponsive.
Applications that meet eligibility and basic minimum requirements will be evaluated and ranked by peer reviewers as not recommended, recommended, or highly recommended.
Highly recommended. The full proposal provides a superior explanation of the requested selection criteria and presents the material in a sound and/or innovative approach. The full proposal comprehensively addresses the requested selection criteria. The result of the proposal has the potential to make significant impact in the field.
Recommended. The full proposal provides a satisfactory design and demonstrates the potential for making an impact in the field. The full proposal addresses the requested selection criteria.
Not recommended. The full proposal does not provide satisfactory explanation of the requested selection criteria. The program approach is weak. The application needs significant revisions and clarifications.
Within each of these rankings, each proposal will be ranked again based on seizure data provided. The highest ranking proposals will be considered for funding.
Priority consideration will be given to applicants that receive a "Highly Recommended" rating AND were not previously funded under CAMP.

Case 3:17-cv-04701-WHO Document 11 Filed 10/13/17 Page 163 of 310
2017 COPS Anti-Methamphetamlne Program /CAMP) Application Guide
Priority consideration may also be given to applicants that partner with federal law enforcement to address illegal immigration.
Prior to award, applications for potential awards will receive a financial integrity review to evaluate the fiscal integrity and financial capability of applicants and to examine proposed costs and the extent to which the budget detail worksheet and narrative accurately supports and explains project costs. This review will also assess whether c.osts are reasonable, necessary, and allocable under applicable federal cost principles and agency regulations. This financial review will be conducted by the COPS Office staff.
In addition, prior to making an award greater than the simplified acquisition threshold (currently set at $150,000), any information about applicants that is in the designated integrity and performance system accessible through SAM will be reviewed and considered. Applicants may review and comment on any information about them in SAM that a Federal awarding agency previously entered In the designated integrity and performance system, and such applicant comments will also be reviewed and considered.
Past performance on previous awards may be in an indicator in this review process. Financial and programmatic
performance factors may be included in the past performance review.
Absent explicit statutory authorization or written delegation ofauthority to the contrary, all final award decisions will be made by the Director of the COPS Office, who may also give consideration to factors including, but not limited to, underserved populations, population served, geographic diversity, strategic priorities, past performance, and available funding when making awards.
The award document
The award document is the document indicating your official award funding amount, the number of officer positions awarded, the type of positions awarded, the award number, the award conditions, and the award start and end dates.
The award document is preprinted with your agency's law enforcement and government executives' names. If this information is incorrect or has changed, please update your "Agency Contacts" online at ,ww_w.com;~usdoj.gov through the "Account Access" link. If the law enforcement or government official has changed since the time of application, please have the current law enforcement executive or government executive for your agency create an account through the "Account Access" link, log in, and sign the award document once your agency contacts have been updated online. Once you have reviewed your award document, please electronically sign it and make a copy of all pages of the document for your records, along with all award condition pages, within 90 days of the date shown on the award congratulatory letter.
The award start date indicated on the award document means that your agency may be reimbursed for any allowable costs incurred on or after this date. The duration of your CAMP award is 24 months of funding for each award.
Your award number is in the following format: 2017-AMWX-OOOO for awards awarded in FY 2017. The COPS Office tracks award information based upon this number. Therefore, it is important to have your agency's award number (or your agency's ORI number) readily available when corresponding with the COPS Office.
Your originating agency identifier (ORI) number begins with your state abbreviation followed by five numbers or ietters (e.g., VAOOOOO). This number is assigned by the Federal Bureau of Investigation (FBI) for use in tracking

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2017 COPS Antl-Methamphetamlne Program {CAMP} Application Gulde
information for the Uniform Crime Report (UCR). The COPS Office tracks programmatic award information based upon this ORI number. If your agency does not have an ORI number assigned by the FBI, the COPS Office assigns a nonofficial ORI code to use as an agency identifier (in such cases, the last two characters will be "ZZ"). lfyou have any questions regarding your award, please refer to your award number or your agency's ORI number when you contact the COPS Office.
The award conditions are listed on your agency's award document. By accepting thi.s award, you are obtaining federal funds from the COPS Office. As part of that agreement, if awarded, your agency will acknowledge that it will comply with these conditions (and, if applicable, additional special conditions specific to your agency).
In limited circumstances, your award may be subject to special conditions that prevent your agency from drawing down or accessing award funds until the special conditions are satisfied as determined by the COPS Office. Any special conditions will be included with your award.
Administrative and national policy requirements
If selected for funding, in addition to implementing the funded project consistent with the approved project proposal and budget, the recipient must comply with award terms and conditions, and other legal requirements including, but not limited to, 0MB, DOJ, or other federal regulations that will be included in the award or incorporated into the award by reference or are otherwise applicable to the award.
Please see general terms and conditions on page 20.
Suspension or termination of funding
The COPS Office may suspend, in whole or in part, or terminate funding or impose other sanctions on a recipient for the following reasons:
• Failure to substantially comply with the requirements or objectives of the Public Safety Partnership and Community Policing Act of 1994, program guidelines,. or other provisions of federal law
• Failure to make satisfactory progress toward the goals or strategies set forth in this application • Failure to adhere to award agreement requirements or special conditions • Proposing substantial plan changes to the extent that, if originally submitted, would have resulted in the
application not being selected for funding • Failure to submit required or requested reports • Filing a false statement or certification in this application or other report or document • Other go·od cause shown
Prior to imposing sanctions, the COPS Office will provide reasonable notice to the recipient of its intent to impose sanctions and will attempt to resolve the problem informally. Appeal procedures will follow those in the U.S. Department of Justice regulations in 28 C.F.R. Part 18.
Awards terminated due to non-compliance with the federal statutes, regulations, or award terms and conditions, will be reported to the integrity and performance system accessible through SAM (currently FAPIIS).
False statements or claims made in connection with COPS Office awards may result in fines, imprisonment, debarment from participating in federal awards or contracts, and/or any other remedy available by law.

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2017 COPS Antl-Methamphetamine Program (CAMP) Appl/cation Guide
Please be advised that recipients may not use COPS Office funding for the same item or service also funded by another U.S. Department of Justice Award.
COPS Office Application Attachment to SF-424
What an application must include
Detailed explanations of required documents can be found on the following pages.
Required application documents and sections for the COPS Anti-Methamphetamine Program
The table on page 35 is a chart that shows the required documentation that must be completed and submitted for your CAMP application to be considered complete. Failure to submit all required documentation at the time of the application may delay processing and/or result in the denial of your application. Unless otherwise noted, each section listed must be completed In its entirety. You can use this chart as an application checklist to ensure you have met all of the necessary requirements.

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2017 COPS Antl-Methamphetamine Program {CAMP} Application Gulde

-<, ' ;) \A;ep·Cptliidc~a'stio--n/- d:o·_c- um·ent- s"--and

Required? Yes; lid/or ~bssible -> [ Completed? ·

,/ >

': .

.

.·

Standard Form 424 (to be

Yes

D

completed on Grants.gov)

COPS Office Application

Yes

D

Attachment to SF-424 (to be

completed via COPS Office Online

Application System)

Section 1. COPS Office Program

Yes

D

Request

Section 2. Agency Eligibility

Yes (section 2C only)

D

Information

Section 3. General Agency

Yes

D

Information

Section 4. Executive Information

Yes

D

Section 5. co~s Office Hiring

No

D

Request Form

Section 6. Law Enforcement and

Yes (section 6A only)

D

Community Policing Strategy

Section 7. Need for Federal

Yes (section A only)

D

Assistance

Section 8. Continuation of Project Yes (section B only)

D

after Federal Funding Ends

Section 9. School Safety

No

D

Assessment

Section 10. Executive Summary

Yes

D

Section 11. Project Description

Yes

D

(Narrative)

Section 12. Official Partner(s)

, Possible

D

Contact Information

Section 13. Application

Yes

D

Attachments

Project Narrative (Required)

Budget Narrative (Required)

Section 14. Budget Detail

Yes

D

Worksheets

Section 15. Assurances and

Yes

D

Certifications

Section 16. Disclosure of Lobbying Possible

D

Activities

Section 17. Reviews and

Yes

D

Certifications

Section 18. Application and Data

Possible

D

Verification

General information

The applicant's SF-424 must be submitted on line via www.grants.gQv. Once the SF-424 has been submitted via Grants.gov, the COPS Office will send an invitation e-mail to the applicant with instructions on completing the second part of the CAMP application through the COPS Office on line via the COPS Office website (www.copJ.usdQj.gov).

Case 3:17-cv-04701-WHO Document 11 Filed 10/13/17 Page 167 of 310
2017 COPS Anti-Methamphetamine Program {CAMP) Application Guide
Instructions: Application for Federal Assistance SF-424
Public reporting burden for this collection of information is estimated to average 60 minutes per response including time for reviewing instructions, searching existing data sources, gathering and maintaining the data needed, and completing and reviewing the collection of information. Send comments regarding the burden estimate or any other aspect of this collection of information, including suggestions for reducing this burden, to the Office of Management and Budget, Paperwork Reduction Project (0348-0043), Washington, DC 20503.
PLEASE DO NOT RETURN YOUR COMPLETED FORM TO THE OFFICE OF MANAGEMENT AND BUDGET. SEND IT TO THE ADDRESS PROVIDED BY THE SPONSORING AGENCY.
The Instructions for the Application for Federal Assistance SF-424 on page 36 is a standard form (including the
continuation sheet) required for use as a cover sheet for submission of pre-applications and applications and
related information under discretionary programs. Some of the items are required and some are optional at the discretion of the applicant or the federal agency.
Required items are identified with an asterisk on the form and are specified in the instructions below. In addition to the instructions provided below, applicants must consult agency instructions to determine specific requirements.
1. Type of Submission (required). Select orie type of submission in accordance with agency instructions. • Pre-application • Application • Changed/corrected application-If requested by the agency, check if this submission is to change or correct a previously submitted application. Unless requested by the agency, applicants may not use this to submit changes after the closing date.
2. Type of Application (required). Select one type of application in accordance with agency instructions. • New-An application that is being submitted to an agency for the first time. • Continuation-An extension for an additional funding/budget period for a project with a projected completion date. This can include renewals. • Revision-Any change in the Federal Government's financial obligation or contingent liability from an existing obligation. If a revision, enter the appropriate letter(s). More than one may be selected. If "other" is selected, please specify in text box provided.
A. .Increase award B. Decrease award C. Increase duration D. Decrease duration E. Other (specify)
3. Date Received. Leave this field blank. This date will be assigned by the federal agency. 4. Applicant Identifier. Enter the entity identifier assigned by the federal agency, if any, or the applicant's control
number if applicable. Sa. Federal Entity Identifier. Enter the number assigned to your organization by the federal agency, if any. Sb. Federal Award Identifier. For new applications, leave blank. For a continuation or revision to an existing
award, enter the previously assigned federal award identifier number. If a changed/corrected application, enter the federal identifier in accordance with agency instructions.

Case 3:17-cv-04701-WHO Document 11 Filed 10/13/17 Page 168 of 310
2017 COPS Anti-Methamphetamine Program (CAMP} Application Gulde
6. Date Received by State. Leave this field blank. This date will be assigned by the state, if applicable. 7. State Application Identifier. Leave this field blank. This identifier will be assigned by the state, if applicable. 8. Applicant Information. Enter the following in accordance with agency instructions:
a. Legal name (required). Enter the legal name of the applicant who will undertake the assistance activity.
This is what the organization has registered with the System for Award Management. Information on registering with SAM may be obtained by visiting the Grants.gov website.
b. Employer/Taxpayer number /EIN/TIN) (required). Enter the Employer or Taxpayer Identification Number
(EIN or TIN) as assigned by the Internal Revenue Service. If your organization is not in the United States, enter 44-4444444.
c. Organizational DUNS (required). Enter the organization's DUNS or DUNS+4 number received from Dun
and Bradstreet. Information on obtaining a DUNS number may be obtained by visiting the Grants.gov website.
d. Address. Enter the complete address as follows: Street address (line 1 required), City (required), County,
State (required, if country is United States), Province, Country (required), ZIP/Postal Code (required, if country is United States).
e. Organizational Unit. Enter the name of the primary organizational unit (and department or division, if
applicable) that will undertake the assistance activity, if applicable.
f. Name and contact information of person to be contacted on matters involving this application (required) and organizational affiliation (if affiliated with an organization): Enter the name (first and last name, then
the application organization), telephone number (required), fax number, and e-mail address (required) of the person to contact on matters related to this application.
9. Type of Applicant (required). Select up to three applicant type(s) in accordance with agency instructions. State government County government City or township government Special District government Regional Organization U.S. Territory or possession Independent school district Public/state controlled institution of higher education Indian/Native American Tribal Government (federally recognized) Indian/Native American Tribal Government (other than federally recognized.) Indian/Native American tribally designated organization Public/Indian housing Nonprofit Private institution of higher education Individual For-profit organization (other than small business) Small business Hispanic-serving institution Historically Black colleges and universities (HBCU) Tribally controlled colleges and universities (TCCU) Alaska Native and Native Hawaiian serving institutions Nondomestic (non-U.S.) entity other (specify)

Case 3:17-cv-04701-WHO Document 11 Filed 10/13/17 Page 169 of 310
2017 COPS Anti-Methamphetamine Program (CAMP) Application Guide

10. Name of Federal Agency (required). Enter the name of the federal agency from which assistance is being

requested with this application.

11. Catalog of Federal Domestic Assistance Number/Title. Enter the Catalog of Federal Domestic Assistance

number and title of the program under which assistance is requested, as found in the program

announcement, if applicable.

12. Funding Opportunity Number/Title (required). Enter the Funding Opportunity Number and title of the

opportunity under which assistance is requested, as found in the program announcement.

13. Competition Identification Number/Title. Enter the Competition Identification Number and title of the

competition under which assistance is requested, if applicable.

14. Areas Affected by Project. List the areas or entities using the categories (e.g., cities, counties, states) specified

in agency instructions. Use the continuation sheet to enter additional areas, if needed.

15. Descriptive Title of Applicant's Project (required). Enter a brief descriptive title of the project. If appropriate,

attach a map showing project location (e.g., construction or real property projects). For pre-applications,

attach a summary description of the project.

16. Congressional Districts Of (required).

i. 16a.

Enter the applicant's congressional district, and

ii. 16b.

Enter all district(s) affected by the program or project. Enter in the format:

Two-character state abbreviation Three-character district number e.g., CA-005 for California 5th district, CA-012 for California 12th district, NC-103 for North Carolina 103rd district If all congressional districts in a state are affected, enter "all" for the district number, e.g., MD-all for all congressional districts in Maryland. If nationwide, i.e., all districts within all states are affected, enter U.S.-all. If the program/project is outside th~ United States, enter 00-000.

17. Proposed Project Start and End Dates (required). Enter the proposed start date and end date of the project. 18. Estimated Funding (required). Enter the amount requested or to be contributed during the first
funding/budget period by each contributor. Value of in-kind contributions should be included on appropriate lines, as applicable. If the action will result in a dollar change to an existing award, indicate only the amount of the change. For decreases, enclose the amounts in parentheses. 19. Is Application Subject to Review by State under Executive Order 12372 Process? Applicants should contact the state single point of contact (SPOC) for Federal Executive Order 12372 to determine whether the application is subject to the state intergovernmental review process. Select the appropriate box. If "a" is selected, enter the date the application was submitted to the state. 20. Is the Applicant Delinquent on Any Federal Debt? (required) Select the appropriate box. This question applies to the applicant organization, not to the person who signs as the authorized representative. Categories of debt include delinquent audit disallowances, loans, and taxes. If yes, include an explanation on the continuation sheet. 21. Authorized Representative (required). To be signed and dated by the authorized representative of the applicant organization. Enter the name (first and last name required), title (required), telephone number (required), fax number, and e-mail address (required) of the person authorized to sign for the applicant. A copy of the governing body's authorization for you to sign this application as the official representative must be on file in the applicant's office. (Certain federal agencies may require that this authorization be submitted as part of the application.)

Case 3:17-cv-04701-WHO Document 11 Filed 10/13/17 Page 170 of 310
2017 COPS Anti-Methamphetamlne Program (CAMP} Application Guide
Section 1. COPS Office program request
Please ensure that the correct program box is checked. If you p.lan to apply for other COPS Office programs, a separate application must be completed for each COPS Office program for which you are applying. Please ensure that you read, understand, and agree tci comply with the applicable terms and conditions as outlined in this application guide before finalizing your selections.
Section 2. Agency eligibility information
FY 2011·CAMP is a competitive award program with a focus on advancing public safety by providing funds to investigate illicit activities related to the manufacture and distribution of methamphetamine. CAMP provides funding directly to state law enforcement agencies in states with high seizures of precursor chemicals, finished methamphetamine, laboratories, and laboratory dump seizures for the purpose of locating and investigating illicit activities including precursor diversion, laboratories, or methamphetamine traffickers. Only state law enforcement agencies authorized by law or by a state agency to engage in or to supervise anti-methamphetamine investigative activities are eligible to apply for funding. Additional consideration will be given to agencies participating in antimethamphetamine task forces with multijurisdictional reach and interdisciplinary team structures.
Before proceeding with this application, we ask that you please log on to the COPS Office Agency Portal to update the agency providing law enforcement services as your Law Enforcement Executive/Agency Executive Information. This information will be pre-populated from the COPS Office Agency Portal in section 4 of this application, so please ensure its accuracy.
Section 3. General agency information
Please provide accurate agency information, as this information is used to identify your agency and may be used along with other data collected to determine funding eligibility. Applicant ORI number
The ORI number is assigned by the FBI and is your agency's unique identifier. The COPS Office uses the first seven characters of this number. The first two letters are your state abbreviation, the next three numbers are your county's code, and the next two numbers identify your jurisdiction within your county. If you do not currently have an ORI number, the COPS Office will assign one to your agency for the purpose of tracking your award. ORI numbers assigned to agencies by the COPS Office may end In "ZZ."
Applicant Data Universal Numeric System (DUNS) number
The Federal Government requires that all applicants for federal awards, with the exception of individuals other than sole proprietors, have a Data Universal Numbering System (DUNS) number prior to application submission. A DUNS number is a unique nine- or thirteen-digit sequence recognized as the standard identifier for entities receiving federal funds, and provides consistent name and address data for electronic award application systems. A DUNS number may be obtained by telephone at 866-705-7511 or via the Internet at fedgov.dnb.com[webform. For more information about how to obtain a DUNS number, plea.se refer to the "How to Apply" section of this application guide.

Case 3:17-cv-04701-WHO Document 11 Filed 10/13/17 Page 171 of 310
2017 COPS Antf-Methamphetamfne Program {CAMP} Application Guide
System for Award Management (SAM)
The System for Award Management (SAM) database is the repository for standard information about federal financial assistance applicants, recipients, and subrecipients. The Federal Government requires that all applicants of federal award funds and cooperative agreements-with the exception of individuals other than sole proprietors-be registered in the database prior to application submission. Please contact the SAM Service Desk at 866-606-8220 or view or update your registration information at www.sam_,gQ.I{. If your SAM registration is set to expire prior to September 30, 2017, please renew your SAM registration prior to completing this application. All applicants are required to maintain current registrations in the SAM database. Please note that applicants must update or renew their SAM at least once per year to maintain an active status. For more information about how to register with SAM, please refer to the "How to Apply" section of this application guide.
Geographic Names Information System {GNIS) ID
The Geographic Names Information System (GNIS) identification number is a unique ID assigned to all geographic entities by the U.S. Geological Survey. To look up your GNIS Feature ID, please go to geonames.us@J!.oefdomestic/index.html. For more information about how to obtain a GNIS number, please refer to the "How to Apply" section of this application guide.
Cognizant Federal Agency
A Cognizant Federal Agency, generally, is the federal agency from which your jurisdiction receives the most federal funding. Your Cognizant Federal Agency also may have been previously designated by the Office of Management and Budget. Applicants that have never received federal funding should select the "U.S. Department of Justice" as the Cognizant Federal Agency.
Fiscal year
Enter the month, day, and year of the legal applicant's fiscal year.
Law enforcement agency sworn force Information - Not applicable under CAMP Civilian staffing - Not applicable under CAMP U.S. Department of Justice and other federal funding
Applicants are required to disclose whether they have pending applications for federally funded assistance or active federal awards that support the same or similar activities or services for which award funding is being requested under this application.
Be advised that COPS Office award funding may not be used for the same item or service funded through another funding source. However, leveraging multiple funding sources In a complementary manner to implement comprehensive programs or projects is encouraged and Is not seen as inappropriate. To aid the COPS Office in the prevention of awarding potentially duplicative funding, please indicate whether your agency has a pending application and/or an active award with any other federal funding source (e.g., direct federal funding or indirect federal funding through state subawarded federal funds) that supports the same or similar activities or services as being proposed in this COPS Office application. Check all that apply using the check boxes provided in the application.

Case 3:17-cv-04701-WHO Document 11 Filed 10/13/17 Page 172 of 310
2017 COPS Antl-Methamphetamine Program (CAMP) Application Guide
Section 4. Executive information
Please ensure that information listed is current. If these officials are "Interim" or "Acting" at the time of application, check the appropriate b6x. Please note that this information will be used for any future correspondence regarding this grant application, and ultimately, If an award is funded, this information will be. used for any award notifications.
Applicant executive/agency executive information
A. For law enforcement agencies
This is the highest ranking law enforcement official within your Jurisdiction (e.g., chief of police, sheriff, or equivalent). If the award is funded, the person in this position will ultimately be responsible for the programmatic implementation of the award. B. For government agencies
This is the highest ranking government official within your jurisdiction (e.g., mayor, municipal administrator, tribal chairman, or equivalent). If the award is funded, the person in this position will ultimately be responsible for the financial management of the award. Please note that information for non executive positions (e.g., clerks or trustees) is not acceptable.
This section will be prepopulated from the information listed in your COPS Office Agency Portal account. If this information is no longer correct, please log in to your COPS Office Agency Portal account and make the necessary corrections before proceeding with this application. For assistance, please call the COPS Office Response Center at 800-421°6770.
Note: Listing individuals without ultimate programmatic and financial authority for the award could delay the review of your application, or remove your application from consideration.
Application contact information
Enter the name and contact information for the person completing this application.
Section 5. COPS Office officer request- Not applicable under CAMP
Section 6. Law enforcement and community policing strategy
Please complete questions CPl and CP2.
Section 7. Need for federal assistance
Section 7A. Explanation of need for federal assistance
All applicants are required to explain their Inability to address the need for this award without federal assistance. Please note that the character limit for this response Is 3,000 characters.

Case 3:17-cv-04701-WHO Document 11 Filed 10/13/17 Page 173 of 310
2017 COPS Anti-Methamphetamlne Program {CAMP/ Application Guide
Section 78. Service pppulation - Not applicable under CAMP
Section7C. Fiscal health - Not applicable under CAMP
Section 7D. Property crime/violent crime - Not applicable under CAMP
Section 8. Continuation of project after federal funding ends
Section 8A. For COPS Office awards with a retention plan requirement - Not applicable under CAMP
Section 88. For COPS Office awards with no retention plan requirement
The questions in this section will be used for programs without a retention requirement to report any plans to continue the program or activity after the conclusion of federal funding. Please identify the source(s) of funding that your agency plans to utilize to continue the program, project, or activity following the conclusion of federal support. Check all that apply.
Section 9. School safety assessment - Not applicable under CAMP
Section 10. Executive summary
Applicants are required to.complete section 10 of the COPS Office Application Attachment to the SF-424 Form. Briefly summarize (in 3,000 characters or less) how your agency intends to use this award, if funded. This information may be used to keep Congress or other executive branch agencies informed about CAMP projects.
Section 11. Project description (narrative)
FY 2017, CAMP applicants must submit their entire project description as an attachment in section 13 of this application. The project narrative portion a/the application is limited to 15 pages (maximum), double spaced, 12point font. Submit this narrative as an attachment under section 13 of the application. The required information that you will need to complete and attach in section 13 is available at: b!!p_:Lh/,,!/>lw,ccms,usQQ.j,fil!JL[11.ctl/.1017~W!!Ic;!J:tam.camp/CAMP proiecLNarra@Jl.,J1df.
The project narrative will address problem identification, current investigative activities, task force involvement, collaboration efforts, proposed project goals and objectives, project implementation plan, program outcomes, and seizure data for the last three years.
The narrative will be a significant factor in the application review and approval process. Failure to provide this information will eliminate your application from consideration.
Your agency is not required to submit supporting documentation with this application. However, your agency must maintain copies of the records used in this award submission for future review in the event of a site visit, audit, or other request. Data used must be data that was recorded in official records.
Please do not submit any confidential data or reports with your application.

Case 3:17-cv-04701-WHO Document 11 Filed 10/13/17 Page 174 of 310
2017 COPS Antl-Methamphetamine Program (CAMP) Application Guide

Section 12. Official partner(s) contact information

If applicable, please submit a list of partnering agencies including contact person, organization name, address, phone number, and e-mail address. Applications that represent multijurisdictional taskforces are strongly encouraged to apply.
Section 13. Application attachments

Project Narrative and Budget Narrative

This section should be used to submit the required project narrative described in section 11 (maximum 15 pages, double-spaced, 12-point font) and the budget narrative (see section 14). The total size per attachment must not exceed 20 MB, and .zip files are not acceptable attachments and must not be submitted. All CAMP applicants must attach both a project narrative and a budget narrative. Your project narrative attachment must address each element on the following form: http:f!www.cop~l,!sdof,K1:i.~lru!!LZQUAw_ardD9£s/cam11L CAMP Project Narratlve.ru!f. Your budget narrative attachment must address each element on the following form: bttp:[Lwww.cops.usdof.govLru!fl?017AwargJ/9_c;~[cam_pli;t\MP Bud_get Narrative.rujf. The budget narrative must (1) describe each Item requested or group of similar items requested and (2) link each item or group of items to the proposed project. All items will be reviewed on a case-by-case basis and in context of the allowable and unallowable costs lists. See section 14, budget detail worksheets and budget narrative attachment, for additional guidance.
Please use appropriately descriptive file names (e.g., Program Narrative, Budget Detail Worksheet and Budget Narrative, Timelines, Memoranda of Understanding, Resumes, etc.) for all attachments.

Please do not submit executable file types as application attachments. These disallowed file types include, but are

not

limited

to 1

the

following

extensions:

.com,

.bat1

.exe,

.vbs,

.cfg,

.dat,

.db,

.dbf,

.dll,

.ini 1

.log1

.ora,

.sys,

and

.zip.

The system may reject applications with files that use these extensions.

Section 14. Budget detail worksheets and budget narrative attachment

Instructions for completing the budget detail worksheets and budget narrative attachment
Included within this section are instructions and sample information for completing the budget detail worksheets and budget narrative. Please complete each section of the budget detail worksheets as applicable. If you are requesting new entry-level full-time officer positions not currently funded in your agency's local budget, please indicate the number of positions. If you are not requesting anything under a particular budget category, please check the appropriate box in that category indicating that no positions or items are requested. Budget requests must not exceed the two year award period. Please Insert zeros for all categories in year 3.

Case 3:17-cv-04701-WHO Document 11 Filed 10/13/17 Page 175 of 310
2017 COPS Antl-Methamphetamine Program /CAMP} Application Guide
The budget detail worksheets request that you provide a specific description for each item and explain how it supports the project goals and objectives outlined in your application. Applicants will be providing this information as port of the budget narrative attachment and not as part of the budget detail worksheets Please note: ALL CAMP APPLICANTS MUST ATTACH THE BUDGET NARRATIVE AS PART OF SECTION 13. /Attachment available at:
h!!PJL/ww_w_,_c_Qps.usdQJ,govLpdf/1_017AwardDocs/camp/CAMP Budget Narrative&f!f./
In the budget narrative attachment, you must provide a brief description of the item(s) proposed for purchase, their purpose, and how the item(s) relate to the overall project. Sections A, B, C, D, E, F, and G and the budget summary of the COPS Office budget detail worksheets are applicable to the COPS Anti-Methamphetamine Program. Like items may be grouped together for ease of reporting. Each item in the budget narrative must fall under one of seven categories:
1. Sworn officer positions and fringe benefits 2. Civilian/Nonsworn personnel and fringe benefits 3. Equipment/Technology 4. Supplies 5. Travel/ Training 6. Contracts/Consultants 7. Other costs
Finally, every item included on the budget detail worksheets must be included in the budget narrative attachment. For your convenience, we have included a sample budget narrative and budget detail worksheets. For more information, please see the "Allowable and Unallowable Costs" section.
All final calculations should be rounded to the nearest whole dollar. Also, please note that the total project amount requested in your COPS Anti-Methamphetamine Program may not exceed the program cap of $1,500,000. Once the budget for your application has been completed, a budget summary page will reflect the total amounts requested in each category and the total project costs.
Sample budget detail worksheets
The following budget detail worksheets are designed to allow all COPS Office award applicants to use the same budget forms to request funding. Please refer to the" Allowable/Unallowable Costs" section of this application guide, because these costs vary widely among programs.
To assist you, sample budget detail worksheets are included in this application guide.
If you need assistance in completing the budget detail worksheets, please call the COPS Office Response Center at 800-421-6770.

Case 3:17-cv-04701-WHO Document 11 Filed 10/13/17 Page 176 of 310
2017 COPS Anti-Methamphetamine Program {CAMP) Application Guide

S. BUDGET SUMMARY

ln,trnoilons, ~"""' revmlV 1h9 calejlory 10131s ai,~ 11'1<> !Olal pr~JOd ros!S !J<ik>w If the ealCQIJIY totals and prOf"~\ amo,,Ms shw,n ar<l«>rred. plenW coot01ue "'ith lhe S\lbmrssloo of your npphc~tmn. Shoukl you need to ,nal(e rm,s,ons !o a budget <;;!\og{)ry ploa,m rtlum lo u,., Dndge,! D>llai Wolk>ii<lel

~l(lll

-- - _______ _________ - .. --- ------ OudgetCol•,,go,y

,,.. C•togcry Tat;,.!

. A. Sworn om.,., Po•;lkm•

$0 00

--------------------+- $1)00 --j----

~~-'"-'"-m._._. ._ , _ o o h ~ ~ - - - - - - - , - - - - 1 c " ' 7 0 0 ~ - - t - - - - ;

D. Suppllf$

$0 00

E. Trovel & T"'lning

gon1rno-t, & Con,uhont,

. _

- '--'-·--·-"--~-"-------------- ~--+-------<

H.lndlroolC<nl•

··--..·--·-~· "SU. O-O------ - ------

TO!al f'rojet\ Amount

$U 00

- - - F~slNmtl(l
["
L._._____l
Tele1ITTm1e Ntlmb,"
L. I
=
Sworn officer positions
Instructions
This worksheet will assist your agency in reporting your agency's current salary and benefits and identifying the total salary and benefits request per officer position for the length of the award term. Please list the current base salary and fringe benefits rounded to the nearest whole dollar for one full-time sworn officer position within your agency. Please list only your agency's contribution of each fringe benefit item; do not include employee contributions. Please insert zeros for all categories in year 3.
Please note:
If sick leave and/or vacation leave costs are already reflected in the base salary figure provided in section 14A, subsection A. Base salary information, please DO NOT also list these costs individually under fringe benefits (section 14A, subsection B).

Case 3:17-cv-04701-WHO Document 11 Filed 10/13/17 Page 177 of 310
2017 COPS Antl-Methamphetamine Program (CAMP} Appl/cation Guide

SECTION 14A: BUDGET DETAIL WORKSHEETS

"""'J ln,1ruetlon,: lh1s ,...,,1<,ooet .,;1 ••~.-~ yoor agc11cy in rep(ll\o~g your aooncy'• C111mnl sal,uy Qnd l>en~h\s aad ,denl,l),lllg U,o to;,I .salary and bmel1s ''1<11""'1 per olJt<er p0Mm11 lor lho lenglh ol lhe g,~nt term. f'le,,,e li,l lho ~,11,ent base ,alary Md

lnr'l\le bmeals roumk><l m lhe near"'9l v.hole dollar fm""" ~•~1,me sworn ott,cer pos,1100 WLThITT ywr ngancy. I lo nol >ldL<le emflo';.-e oontnl"'lmrn. (f'I= refer to hll!)Jl,w,w.oops

gov/I )eJault;,r,r,''11c,n•46 Im 1nlorrnal\o11 on !he le11Qlh or It.ii

w,u~ w,m 1<11 ~'" rm~J""" 11<,<1t>1·wtud, yrn, am ca11P)'ing )

Svc•••I 110le regrud,ng '"""'" ofl,cer l11r<ge bonc,fit, Fu, agenc,os u.,,, do ool 11\d!lde fm,ge t>ermfils as pa,! ol lt•e blise ,ala1y cwts arid lyr.,raby t11k.'U!ate tllese sepa-ately, Ui,, a!owable e,:µen<,hlun1,i 1m,y be ,11crw.fod uncle, Part 1, Seclmn 8. Any
lria11<1 ~•no!IIS that ore alteady lnolud•d "' p.,r1 ol tho ooonoy'• bou sabry (Par11, Soellon A or the Swom Offl<or 8u"9ot Workoh•etl ~hould not al•o be Included In tho ""P>r•t• hinge ll•llng (Por11, Soo11on a), Phme rnf<.1 10 lll1p rlwl,w.lXll]'3 us<l<~ govme!aull M~?llt.•rn-.41.\ for .,Jo,mal,ori Wioot ;,IIOW"able and urmlluwablo fm,ge IJ\.S>eli\s Joi' sworn officer poomoo, reqoosled under Um pmgmm 10 wt,rn your ogmcy '" uppilj•,g

A. SWORN Ol'flCER POSITIONS

full,llmo Swom omoarBan Sol~ry l1>fonnatlon

Pon 1: lru,tn,cito.1s. Plt'i>Se corr,ptr,1~ the qu~s11om OOlow bo,ed on your agenc)'s •!!lmy and l>eoof,ls P<l"kf!O" fur Ql.l!.: hx.,,11y.fuidoo nlf,r:,,r poo1ion. Ao oWli<'a!>k pc< 1/1<> p,og,om,spr,r:trl~ ,w,ltcMioI> guldi!. you moy "'"" IX' mq,Jirecl ro 1,mjec! Y~nr 2 arK1Ye,,1.1salarn,,.

t,. "~"" S~l~f'/ !l>lunno\1011

l'""''""'"""'r'""'''"'
,m"'""""'"·
c:::::J

.e),:,n",,,.·".·.",~,".,"";','""'"""""' ''
c:::::J

Lsoiii'il'Oiio:~) ~~·~:~~~:,
."'"~"•.""""'""

l'f~<I~~-

~J~::.,'~.'d~d~ s;o1<,,.-,.,.~,,

~{,-<j~~Yl~;~""~''u°,":0''':."'t.'''"'

"o ,"f l'e" " ' " ' ' " '

Nor,t.l>s..,e~<.\V..

fllINt:E UfNHirS,
~)~i,s::~:~t ~~:;.n••• ~Exompt ~5.~% Clr!xod fl•t•
' ~: .: ~':,~:~~o:_~1•S% ::::~~•rnpt (~1.4~% CFlxod Rato
HoaU.h I"-'"""'" (ra,nilvcovotaga}

=-i.£dl11;1, O~n"lll,;
~~~ s:Z:v ~!!CJ
L:J~
~

l.!lilt...i..f.rlllD!!.l!fill~ffi~ to~, """'
W 1 8A!/[ ""'"'" 12
lCJ§C]
c=Jc:J

Life Insurance Vacation Sick Le.ave Retirement

lo Number of Hours Annually: lo Number of Hours Annually:

Worker's Compensation
unemployment Insurance other

DExempt DExempt

Other

other

Benefits Sub*Total Per Year (1 Position)

lo oo

C. Tol.:il Salary + Benefits Per Year (1 Position)

lo oo

D, Total Salary and Benefits for Years 1 and 2 (l Position): lo oo

10.00

10.00

E:J x

# of Posltlons Llli_o_o_ _ __,

Civilian positions
Salaries of personnel are costs based on the percentage of time spent (FTE) working directly on the-project. The total salary percentage should be comparable and consistent with organizational policy. The total amount paid is comparable to industry standards and the type of work being performed.

Case 3:17-cv-04701-WHO Document 11 Filed 10/13/17 Page 178 of 310
2017 COPS Antl-Methamphetamine Program {CAMP} Appl/cation Gulde

8. BASE SALARY AND FRINGE BENEFITS FOR CIVILJAN/NON·SWORN PERSONNEL
lnstni,:llons: Please cornpl!l!e d1<1 questims below for one nnn.,.vmrro 1>os1~m1 sala,y and b,me~tl< p"ckage As Hj'.~J!io;;iblc, Pl'' 1he r•1><J1,m1.,;pecific appli<:.ili011 guide. Yl>ll may ~IM> Ix, rnqui,.,<l to pnoje<:I year ?. am! year 3 $almie8 Please ll'ft1 W 1,up,,www t',x>S u~1.gc~IDelm1l1 uop?Hcm~46 rur iuforma~oo al>outallowablo and unallowable fri1190 bcmofilo ro, civiliur\fno1i-swom personnel 1equeolod uMcr tlm prl>(lmm Jo which yOLr agency Is apply(ng
fl. CIVILIAN POSITIONS [_ Re~,e Po~l!cl_~_j

i A. llosft Sala,·v lnlormntlon i
I I Po•ltlon rltle iry1,~ha<olo,.ma,o t.!po•Jtlon
' Ooscrlption

Ent<,thofin< ~·•' ffltry,!o,ol ~"" ..,• ..., fo, tl1i,:d;~,oo/11M• ~npo,ition
1"0~. "·'""'.".1."'"''"

'Yn['"<";.>'',"•",r;'"",'."I"t","','~"n"'{""nf""oo"'roId-
.c:=:::J ,wo,npo~tio"

I

1·s~i;;:rA·a, . :-~] ;.'r:~1~:td:
Vo,:olion=<l<1 No,0<<0l«!Vu

~~locta_,,,;; i'~;>:r;",yt~~fu'J:
vootc,a,t.i,o.n,,c.et<tvt.1..

0,110,

o,tlo,

~~·:·.-.;. l?:i~tr:,~.~·: 5;,,:,..,.,,,...1 ...•,1~•••~••1•,;tv..

.,~.. @~~~t§i'~ ~j:~'\:.:i~J: "'"<I ',ltl< , ...,. Plo-•el•'1V•<•

U. rr!nge 8enem costs 5hould bs colculot<!d for each veer of the gr,mt lern,.

HUNQE HSJllUl rs:

.YlHl.r.. Lf-rJUU.!LlJl:Qllln~
COST %Of !IM~ SAlAl<V

i Me<llcan, <'Xpen,.,, i <3m,ot <'l}(c<1<d 1.45%
: Hea!lh '"""'"""" Ufe ln•uranoe
i Va~ati<m

Y.!WL~...ttill!ll!..l!lml!ll.l~ COST % Of
IIASE SAU.RV
c:J~
[CJ~
c:Jc:J c:Jc:J E:JE:J

Fringe benefits

Aside from Social Security, Medicare, health insurance, and life insurance, the foll owing are allowable fringe benefits:
1. Dental insurance 2. Vision insurance 3. Prescription drugs 4. Sick days (if not included in base salary-calculate using 8-hour workdays) 5. Vacation days (if not included in base salary-calculate using 8-hour workdays) 6. Holiday pay (if not included In base salary) 7. Retirement pension 8. Worker's compensation 9. Unemployment 10. Disability insurance 11. Accidental death and disability 12. 401(k) plan 13. Liability insurance 14. Shift differential pay (if not included in base salary) 15. Accident insurance 16. Bonding insurance 17. Police trust 18. State funded retirement system

Case 3:17-cv-04701-WHO Document 11 Filed 10/13/17 Page 179 of 310
2017 COPS Antl-Methamphetamine Program /CAMP} Appl/cation Gulde

19. Professional liability insurance 20. Federal Unemployment Tax Act (FUTA) tax 21. Survivor benefit

Other benefits1 such as training1 equipment (e.g., uniforms1 weapons, or vehicles)1 severance pay1 and hazard pay, are not allowed.

Sick Leave Retirement

Number of Houri; Annually:

Worker's Compensation
U11employm~nt Insurance Other

Ot:xompt DExempt

Other

Other

[s~1;c1oi;

__ . __·__.i]EE::==JJEE::==JJ

Benefits Sub-Total Per Year (1 11ositian) C. Total Salary + Benefits f>er Yoar (1 Position) D. Total Salary and Benefits for Years 1 an,I 2 (1 Position): 10.00

x@=i # of Positions

Equipment/Technology
Necessary equipment must be specifically purchased to implement or enhance the proposed project. Equipment is tangible, nonexpendable personal property, including exempt property, having a useful life of more than one year and an acquisition cost of $5,000 or more per unit.

C. EQUIPMENT/TECHNOLOGY

'. ]No ~ulprno11UT~eh11ol<l{JY lloquo,tod

lnstnictlons: UM """ axpen<lilll!B jt~.ms Iha! are to be purcl111S,,,d_ Pmvldo ~ •peorn~ duoriptlon for eooh Item lij !he (11>,GrlP!lon bo•e• below ond e,ploln how the Item suppon, the pr<>Jecl goal$ and objec1lvn og oUll!nod In your cppll~allon, Non ,e,pcndilblt) equ,pme,~ ,, 1ar1g1ble pi<ijlerty (e.g , 1nform~~on 1e<:hrmlogy sysl,_.m,) "'""'0 a usdul 1,1,;, of rno.-e lhnn mie Jear and an acquo;i~(l)l cost or $5,000 or morn per unil. Expendable ,ro.ns shuukl Ile m,·Jlllfed mlher ,n II"'
"Slfl'PLIES" or "OTI!ER" ca!Ol)o,ius. Appllcanl• shoold anal¥"' the cost benefi1s of pu1tha1,n11 v;;rous leaSOl!l eq\"J~ner1L e,p~c,alll fol l>i~h-jl/10: ,\erris and lhOse subje<:l to rapid tecl,rOcal a!lwlr><.,$. Rer,led o, \ea,;ed ~4"1P'""''( cosl, shoul~ 1,e liste<I "' ~w "CONlRACTS /CONSULTANTS" ~•l"!.lOf\l
l'f"'"" he a<Msed 1hal. to 11,e grealesl eslem prm:tlral. all oqu1pmoo1 an<I prodw::I• purchased w11h tlw.oe 1Lmds amst be Aawnt.an-mada

~<>r ogoncl"' purc:11,,o[rig ltoa'" r•1•1•d to ~nhanud communlcottoa• ,y.i....,,, lhf COPS Offie~ O>p<icl5 ond ffiooura~•~ that, who,~v•r ro»lblf, 1uch vcloo or da!a communl~lon• equipment should I><- lnoorpornted lnlo an Intro- or

lnlerjurl,dlcUori<>I stratew, lo!' oon,munloa!lo"• 1nl•ropornblli1y among fodor~I, s!al<>, ond local law ""fon,omorit aganoioo.

·

,up, Sec hnp !!www Mdoj ~<'.l'11D<'fAllll aspi'Uem,,,~6 fQr a 1,si or ~llowabteJ"""'""'"bl~ cost,, for lhrs progmni Pl<,ass ~nit your Ooacriplloo• \o 1000 L:11arac"-""

UernName

l>lio6m,t[lo.o"o===:::il ~ [!l@!'ooC::===J Tolal :[!O!'OOC::===J

Case 3:17-cv-04701-WHO Document 11 Filed 10/13/17 Page 180 of 310
2017 COPS Anti-Methamphetamine Program (CAMP} Application Guide

Supplies
Supply costs consist of those incurred for purchased goods and fabricated parts directly related to an award proposal. Supplies differ from equipment in that they are consumable, expendable, and of a relatively low unit cost, defined as less than $5,000 per unit. Such costs may include paper, printer ink, pens, pencils, laptops, etc.

E. TRAVEL/TRAINING

L No Trnv<>UTrnlnlng R•quosted

Jnstruc!IOM: Ttavel com 311' !he. expen;e,, k,r 1ran'f'O~a11on, loclfjing. subsl,ianc<>, an~ r~lai..-Jilem, m<1med by •mnloyee• \WO are n 1ravel ,mlLis on off<dal husi11e<s ol lhe. nonfedernl ~nl,ly. 11em,,e gra11l,relatt1cl lra¥m m:pe'1S<l$ ol grant'"'

n pe~on!lfll (<'.i<d,Ml,ng 00110<llanlo, whow ~.xponses am l>sle.d mS&.lton by evenl (<'-0 . man<lln,xy tra,n,.,9, struf lo uaonlfl{I_ ficld lrllcrvle.wa advlscry groop mect11,g,). ldm11,fy u,e loc.aMn ,)I tmvd whenever ix,,,,ihl<l, arid show !he numb"' or sla~

,,,,ts exr,oclul lo a11<!nd web event Trnining lees, lroosp0Ha1"'1>, lodging arid per diem r"te,; [or lrd1<1e<."J otio,id be Oslod"" •(lf/iJ1alo travel 1icms. Orantce !r"""I

spec,J,c la 1ho g,aot rxojecl a,ay 00 ~asc~1 <>11 l~e l)!ar~c'C's wr~len uavel policy,

""' "'"i'llJ th" oo,ts me 1oos0Jmbl". G1aotees will1out a wruten ~uvd j'.<11,cy n•ust foUO'N U,e ~~lablished lecl~•"I rate, (fouM al ht\,·/!www g,ffi.g"") (o, loclgmg, mClllo, orsl per diem. F<0 al y,on!ees (with"' Wilht)lll a w11Uen b»vol p(H,ey), a11far,, 1r.wet

<:<isls "'""I (1ll 011r, \l[ lhc Mowmg Ille klWIJSI dom:,,.,,i ,;,x01me1t1'11 ai11arn. slaorl,ud t•Jil<t, ,ail.ire, or !he Federal Go"·'"""'"l C'Ull!U'1 a,rfa"' (,J a"lhOll<~d m.i ,,emi.>l>I<>).

See htlp"i/W\•m.oono "W'l gov/tlofautt asp'lll6m0 ~tl for a Ost of allowableJunallowabk\ costs for Ui,s prOf)ran, I 'rn,,de a sper.ff,r. fescripl!nn in the <le,a!plion booes 1>1,1ow for eac.h nan, rum rocplaln h<>w th~ oie.m ouppOM; lhe prqect l)Oals and ohj0<l1'll!s

~ o~mnr.d ill yo,x appllci11iM. Pleaoe llmil your descriptions to 1000 charactors.
Event Tirt~ and Locm.,n

mtNiiiiiiF

~----~i ""'---~,@::=:J "'""~---~ L. TrMsp1,ofa1ion: !0,00

•

Addlrem

Travel/Training

Travel costs include the costs of transportation, lodging, meals, temporary dependent care, and incidental expenses incurred by personnel while on official business, such as attendance at a award-related meeting or conference when travel is further than 50 miles from the program location. Travel and subsistence estimates are based on the contemplated number of trips, places to be visited, length of stay, transportation costs, subsistence allowances, and the recipient's own travel policies. When charging travel costs to federal awards, recipients must adhere to their internal travel policy.
If a recipient does not have a written travel policy, it must adhere to the Federal Travel Regulations (FTR).

For information on the FTR and U.S. Government General Service Administration {GSA) per diem rates by
geographic area, please visit ww~ov/portal/conteD(/10'!Z90.

E. TRAVEL/TRAINING

('JNo Trave!ITr<>lnlne Roques1e<I

el<f)en..,. ln,ttuetl<>noe ·rravel coots are lhe ''"P'"''''° lortransportalmn, !O!lD"'II, Sllbslslenc<>, .mcl reJ;,ied ;1.,_m, '""'"'"" by employe"' \\ho are "'1ravd ,1alt1s on orndal busi"""" <>f the oonlederal r.nldy. h~.rrv<> ~rn<>l·rela1erl l@vel

ol grantee

per.sonne! (exc!,Hl,n~ COJ1St!trn,1s, "'"""' cxpr,nses n,., hsled ;,,se,:1,on F) by C!'l'1nl ("-!I . mand,1!0fy tmin"'fl, stall lo u,..nir>\I, a.rct 11140fl'1ews. mM.sory qroup meer,ngs)_ lctmUy lh<1 location or tmVfll when"""' possible, Olld show the numb~ ol smtt

eicp,,r,lo<I to a11<,fld """" OVMt. 'f,a/nlfl(l le%. \fllTl>l>(l1 taru>n, lodging imci per dlem rnle, l<>r trainees shOll!d be !J.sled as sCjl,1r.ue travel 1lrsns. Grantoo lrl!Ycl cools spec111c lo Iha grenl projocl may 00 00000 oo tho uranloo'.s wnltnn travel pol,cy,

°"" ;m,u,ro!,,g ~,~ C.IJS~ are raamnshlll Gra111ffl,; v,ilhou! a ""111en u;wal policy nlllst ro11o-,n10 es1obl1shoo ladernl milts (!ou11d al hl{j}·/lwm1 gsa a"'l for lodgln~. ill<'.als, and per diem. focal granl<t<!.s (w'1h ot \'alhol,l ~ wriltm, lrawl J)o1ir,1'), aidam trawJ
cool~ 11,u,t l1e ol lhe (l!U,,,/U\g· lh<l kwfflsl rkscouri! co,ntn<lttttll ,.,fare, s1a11daJd coach iillfore, Of lhe F~slr>la! Gwe1ru,..,n C(>fllrnr.l "Jt!alll (~ 001h11rw/d an<I ,wa,l>ihle)

Soo ht1vi1W,,w.oops u«ki (l<Wil)eJmlil asp·m,.n,-1o !or a i;,1 of anowablollmallowabt~ cost• for"''" prOf)ran, Provide ~ ar,ecifu: daaoiplioo ,n lhe desr.rlplkm ho>:es below lo, oath H~rn MN ••Plain how U>e ilem suw0r1, ilffi project goal,; and ot,Jocl•ves

~ outlined ,n ~our i!Wic.a1i,;m, I'lease lilfli\ your ([esc<iplioo<; lo 1QOO ct,aracters. Ev;,nlTllle~n<llocatlro

Ill

• '

Dalele

Mdl1"01
•
• • • •

Include each trip as an individual entry in the Travel/Training section. The name should reflect the name/title of the trip and should not be a group of trips. Registration Includes the amount for the registration of the training/conference attendance. Lodging includes the amount for the hotel and any taxes/fees associated. Per diem includes the amount for GSA-approved meals and incidentals. Transportation includes all ground and air transportation as well as public transportation and parking fees.

Case 3:17-cv-04701-WHO Document 11 Filed 10/13/17 Page 181 of 310
2017 COPS Antl-Methamphetamlne Program /CAMP} Application Guide

Contracts/Consultants
Consultant expenses and contracts include goods or services that directly contribute to the implementation or enhancement of the project. The use of a consultant should be more economical than direct employment. Compensation for individual consultant services procured under a COPS Office award must be reasonable and allocable in accordance with Office of Management and Budget (0MB) cost principles and consistent with that paid for similar services in the marketplace. The services should be commensurate with the rate or salary paid by the primary employer. Unless otherwise approved by the COPS Office, independent consultant rates will be approved based on the salary a consultant receives from his or her primary employer, as applicable, up to $650 per day.

F. CONTRACTSICONSULTANTS
[I No C<>nlrnet C1"1$ RoquHled
,is lr,w1,o!lon<; Seo l1!1j>·l,,,,,w c"I" us<l"I gov.'Uelau~ ~,p?llerns46 fur a r.., of alluwable/unaUowable O\>Sls for the parUcul.,r pwy,an lo 1'1111ch yoo •re appl\'lr,g Pm.;de a sp""'[11: desct1pbui, 11, U>e dl>oc<1p\101\ 001<,,. bolow Fo, each ,lem a11d e,;plalo how
ll,~ ,ten, ,~,pf>M• JlmjOCI ~'"'1i 1md obJe<ljw~., oomrwd 111 y0<,r appl""'IOJl Pk,ase unul yam de.st:rirnrom lo 1000 ci11uDt1,,ro
fl'•" C,,,,tr~!'.L'\' Prnv,tle a ""I '"'"!I/lie k,r ll"' [)1()<11HJ or smwe l<> be rmcllmd l>y <:on~acl. Appl.,;a11ls ar<> mcoumged kl pmmole hco 30~ ()/)<ID comt•elilion in "™"1100 ronlra,:ls. lf awrud<..s( ,,,.iw,,sts !0< sale s,,u1w 1,iou11e~K1n\s of e[lmpmenl,
lechnCJlO(JY, or seMC~-• in ""'"''" or U50.(~~) mus\ 00 ,.,tim,ue,I u, lho CUPS. ()10.,, Joc •PP<Wal (S<'<' 1>11p /lw1vw~l0fl'.,.,1q.911wnor,mllosp'llte.m=~~ fOI "'°'e ,nformafon on Um r;,quired st1bn11ssioh) F1. !~lr~cl C:O.ls
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Case 3:17-cv-04701-WHO Document 11 Filed 10/13/17 Page 182 of 310
2017 COPS Antl-Methamphetamine Program /CAMP/ Appl/cation Guide

• Include name of contract/consultant/travel/expense with a description of the scope of the work. • Unless justification is provided, the daily rate for the consultant should not exceed $650/day. • Consultant travel should follow the same format as the travel section detailed in the section above. • Similar to supplies and equipment, consultant expenses should be broken out by item rather than one
grouping.
Other Costs
Items not included in the above categories but which have a direct correlation to the overall success of a recipient's project objectives and are necessary for the project to reach full implementation will be considered on a case-by-case basis by the COPS Office. Please include all' overtime costs in this section.

G. OTHER COSTS

lnmuctlons, L.sl o!hor roques!ed ilerns lha1 w,11 support the f«l!e<I goals ann nl1jec.1Nes as rn1ttiood ill your ,ippl,ca;on. Provl<lo a s1,oolfio do,cripHon f<>r oacl, lt•m In tb• desorlp~o11 box•~ holow ~nd o,pioln h<iw trHI itom ~upport, th•

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Section 15. Assurances and Certifications
Applicants to COPS Office programs are required to sign the standard Assurances and Certifications forms. Signing these documents assures the COPS Office that you have read and understood and that you accept the award t_erms and conditions as outlined in the Assurances and Certifications. Please read these documents carefully, as sign·atures on these documents are treated as material representation of fact upon which reliance will be placed when the U.S. Department of Justice determines to award the covered award.
Section 16. Disclosure of lobbying activities
This disclosure form shall be completed by the reporting entity, whether subawardee or prime federal recipient, at the initiation or receipt of a covered federal action, or a material change to a previous filing, pursuant to title 31 U.S.C. § 1352. The filing of a form is required for each payment or agreement to make payment to any lobbying entity for influencing or attempting to influence an officer or employee of any agency, a member of Congress, an officer or employee of Congress, or an employee of a member of Congress in connection with a covered federal action. Complete all items that apply for both the initial filing and material change report. Refer to the implementing guidance published by the Office of Management and Budget for additional information.
If this applies to your agency, you are required to complete the disclosure form. If you need to submit additional forms, please submit them as attachments to your application online in section 13, Application atta.chments.

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Section 16B. Certification of Compliance with 8 U.S.C. 1373
In FY 2017, all State or local government entity applicants (e.g., police departments, sheriff's departments, state police) are required to certify compliance with 8 U.S.C. § 1373 regarding prohibitions or restrictions on sending to, requesting or receiving from1 maintaining, or exchanging information on citizenship or immigration status1 including any prohibitions or restrictions imposed or established by a State or local government entity or official.
This c.ertification must be completed by the governing body's chief legal officer (e.g., City or County Attorney).
We strongly recommend notifying your governing body's chief legal counsel of this certification requirement as soon as the CAMP application period opens so that they may conduct the required reviews necessary for completing the certification before the application deadline.
Questions regarding the certification requirement may be directed to the COPS Office Legal Division at 202-5143750.
Section 17. Reviews and certifications
Please be advised that an application may not be funded or, if awarded, a hold may be placed on this application if it is deemed that the applicant is not in compliance with federal civil rights laws, and/or is not cooperating with an ongoing federal civil rights investigation, and/or is not cooperating with a Department of Justice award review or audit.
Applicants must certify whether or not their agency will use COPS Office funds (if awarded) to operate an interjurisdictional criminal intelligence system. If yes, the applicant assures the COPS Office that it will comply with the requirements of 28 C.F.R. Part 23.
The signatures of the law enforcement executive/agency executive, government executive/financial official, and the person submitting this application on the reviews and certifications represent to the COPS Office that
• the signatories have been legally and officially authorized by the appropriate governing body to submit this application and act on behalf of the award applicant entity;
• the applicant will comply with all legal, administrative, and programmatic requirements that govern the applicant for acceptance and use of federal funds as outlined in the applicable COPS Office application guide, the COPS Office award owner's manual, Assurances, Certifications, ·and all other applicable program regulations, laws, orders and circulars;
1
• the applicant understands that false statements or claims made in connection with COPS Office programs may result in fines; imprisonment; debarment from participating in federal awards, cooperative agreements, or contracts; and/or any other remedy available by law to the Federal Government;
• the information provided in this application, including any amendments, sha.11 be treated as material representations of fact upon which reliance will be placed when the U.S. Department of Justice determines to fund the covered award;
• the applicant understands that as a general rule COPS Office funding may not be used for the same item or service funded through another funding source;
• the applicant and any required or identified official partner(s) listed in section 12 are partners in this award project and mutually agreed to this partnership prior to this award application.

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The signatures of the law enforcement executive/agency executive and the government executive/financial official in the application must be the same as those Identified in section 4 of the application. Applications with missing, incomplete, or inaccurate signatories or responses may not be considered for funding.
Section 18. Application data verification - Not applicable at time of application
After submission of this application, the COPS Office may require your department to verify data provided in the application. This section is to be completed once the data has been reviewed, confirmed, and/or updated. Failure to respond to the request may eliminate the application from 2017 funding consideration. The purpose of this section is to confirm the following:
• That the person reviewing, confirming, and/or updating the data is authorized by the appropriate governing body to act on behalf of the award applicant entity
• That the Information provided, including any amendments, be treated as material representations of/act upon which reliance will be placed when the U.S. Department of Justice determines fund award the covered award
• That the applicant understands that false statements or claims made in connection with COPS Office programs may result in fines; imprisonment; debarment from participating in federal awards, cooperative agreements, or contracts; and/or other remedy available to by law to the Federal Government.

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Appendices
Appendix A. Glossary of COPS Office program terms
The following Information is provided to assist you with the completion of your COPS Office award program application forms. The list includes some of the most common terms that are used in the application forms. For additional assistance or clarification regarding any part of the application, please contact your Gra"nt Program Specialist at 800-421-6770.
allowable costs. Allowable costs are costs that will be paid for by this award program.
authorized officials. The authorized officials are the individuals in your organization who have final authority and responsibility for all programmatic and financial decisions regarding your application and, if awarded, your award. For law enforcement agencies, the listed law enforcement executive (usually chief of police, sheriff, etc.) and the government executive (usually mayor, board president, etc.) are your agency's authorized officials.
authorized organizational representative (AOR). A person authorized by your e-business POC to submit applications to Grants.gov. This privilege should be provided only to those individuals who currently have signature authority for submitting award applications. The name of the individual designated as an AOR will be populated by the Grants.gov system in award application package forms, which require signatures. An organization can assign as many AORs to use Grants.gov as necessary.
automated booking system. An automated booking system captures arrestee fingerprints and photographic information electronically and often has the ability to transfer that information to a departmental or state-wide database.
automated fingerprint identification system (AFIS), An AFIS Is a highly specialized biometrics system that compares a single fingerprint image with a database of fingerprint images. Fingerprint images are collected from crime scenes or are taken from criminal suspects when they are arrested. Fingerprint images may b~ captured by placing a finger on a scanner or by electronically scanning inked impressions on paper.
award number. If funded, the award number identifies your agency's specific award, and can be found on your award document. This number should be used as a reference when corresponding with the COPS Office. The COPS Office tracks award information based upon this number.
award start date. This is the date on or after which your agency is authorized to purchase items or hire positions that were approved by the COPS Office. If awarded, the award start date is found on your award document. Recipients may not make any purchases or hire any positions prior to this date without written approval from the COPS Office.
career law enforcement officer. The COPS Office statute defines a career law enforcement officer as a person hired on a permanent basis who is authorized by law or by a state or local public agency to engage in or oversee the prevention, detection, or Investigation of violations of criminal laws.
Catalog of Federal Domestic Assistance (CFDA). The CFDA is an annual government-wide publication that contains a description and index of all forms of federal assistance. Each program Is assigned a CFDA number, which is used by auditors to track grant revenues under the Single Audit Act. It is also used in participating states by state single

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points of contact in conducting the required Intergovernmental reviews under Executive Order 12372. The CFDA number for all COPS Office programs is 16.710.

closeout. The process in which the awarding agency, the COPS Office, determines that all applicable administrative actions and all required work and conditions of the award have been completed and met by the recipient and awarding agency.

cognizant federal agency. The federal agency that generally provides the most federal financial assistance to the recipient of funds. Cognizance is assigned by the Office of Management and Budget (0MB).

community oriented policing. Comm~nity oriented policing is a philosophy that promotes organizational strategies that support the systematic use of partnerships and problem-solving techniques to proactively address the immediate conditions that give rise to public safety issues such as crime, social disorder, and fear of crime.

computer aided dispatch (CAD) system. A CAD system is a computer database that can track calls for service, maintain status of units available, provide various reports, produce address histories, and support electronic mail. With the installation of integrated CAD systems, officers are able to receive calls for service on their mobile data terminals rather than over the radio. Radios can then be used only for serious emergencies.

computing devices. Computing devices are machines used to acquire, store, analyze, process, and publish data and

other

information

electronically,

including

accessories

(or

11peripherals11 )

for

printing transmitting, 1

and

receiving,

or storing electronic information.

consortium. A consortium is a group of two· or more governmental entities that agree to form a partnership to provide law enforcement services to their constituent communities.

COPS Office. The Office of Community Oriented Policing Servic:es (COPS Office) is the office within the U.S. Department of Justice that, if funded, is your awarding agency for your COPS Office award. The COPS Office is responsible for administering your award for the entire award period. You can reach the COPS Office at 800-4216770.

COPS Office finance staff. Members of the COPS Office finance staff handle your agency's financial and budgetary needs related to your application. A financial analyst is assigned to your state, and is available to answer any questions that ypu may have concerning the financial aspects of your award, if funded. To identify your state assigned financial analyst, please call the COPS Office Response Center at 800-421-6770, or visit the COPS Office web site at www.cops.usdoj.gov.

DUNS number. DUNS stands for "data universal numbering system." DUNS numbers are issued by Dun and Bradstreet (D&B) and consist of nine or thirteen digits. If your institution does not have one, call 866-70S-S711 to receive one free of charge. You can also request your DUNS number on line at www.dnb.com/us.

e-business point of contact (POC). Your e-business POC Is the person who will designate which staff members can submit applications through Grants.gov. When you register with SAM, your institution will be asked to designate an e-Business POC.

EPIC (El Paso Intelligence Center) National Clandestine Laboratory Seizure Database. The U.S. Department of Justice maintains this database to track seizure of clandestine drug laboratories. It contains addresses of some locations where law enforcement agencies reported they found chemicals or other items that indicated the presence of either clandestine drug laboratories or dumpsites.

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equipment. Equipment is tangible personal property (including information technology systems) having a useful life of more than one year and a per-unit acquisition cost that equals or exceeds $5,000.
federally recognized tribe. Tribal entities that are recognized and eligible for funding and services from the Bureau of Indian Affairs by virtue of their status as Indian tribes. They are acknowledged to have the Immunities and privileges available to other federaUy acknowledged Indian tribes by virtue of their government-to-government relationship with the United States as well as the responsibilities, power, limitation, and obligations of such tribes. Only federally recognized tribes are eligible to apply for COPS Office tribal award funds. For further information, contact: Bureau of Indian Affairs, Division a/Tribal Government Services, MS-4631-MIB, 1849 CStreet NW, Washington, DC 20240, 202-208-2475.
GNIS ID: The Geographic Names Information System (GNIS) database is maintained by the U.S. Geological Survey, U.S. Department of the Interior. The database assigns a unique, permanent feature identifier, the Feature ID, which is the only standard federal key for integrating or reconciling feature data from multiple datasets.
global positioning system (GPS). Global Positioning Systems are a series of 24 geosynchronous satellites that continuously transmit their position. Each system is used in personal tracking, navigation, and automatic vehicle location technologies.
Interoperable communications. Communications interoperability refers to the ability to talk across disciplines and jurisdictions via radio communications networks on demand, in real time. Interoperable communications equipment and technology is used to increase interoperability and data Information- sharing among the law enforcement, fire service, and emergency medical service communities.
Local Area Unemployment Statistics {LAUS), The Bureau of Labor Statistics' LAUS program provides monthly estimates of unemployment for communities. For more information and detailed instructions for looking up your local area's unemployment rate, please visit www.bls.gQYf.lau/data,htm.
local budget cycle. Your agency's fiscal year. Some common examples include January 1 to December 31, October 1 to September 30, and July 1 to June 30. Some local budget cycles may extend up to 24 months.
M-PIN. Password used by your e-business point of contact to designate which staff members can submit applications to Grants.gov.
matching funds. What a locality must contribute as a cash match toward total allowable project costs over the life of the program.
mobile data computer/laptop. A Mobile Data Computer (MDC) is a computer terminal mounted in a vehicle that is linked via wireless communication to a network that is often integrated with a CAD system. MDCs enable officers to complete previously handwritten reports on a computer. This often eliminates the need to enter duplicate information on multiple reports.
National Incident-Based Reporting System (NIBRS). A comprehensive reporting database. Agencies provide individual records for eight index crimes and 38 other offenses.
obligation of funds. If this application Is awarded, the COPS Office obligates federal funds when the award document is signed by the director or his or her designated official. For the recipient, award funds are obligated
when monies are spent directly on purchasing items approved under the award. The term encumbrance is often

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used at the local and state levels to describe this type of transaction. Liquidated obligations are considered cash outlays or monies actually spent. Unliquidated obligations are obligations incurred and recorded but not yet paid (accrual basis of accounting) or not yet recorded and not yet paid (cash basis of accounting).
OJP vendor number/EIN number. This is your agency's nine-digit federal tax identification number assigned to you by the IRS. Your accounting/bookkeeping department should have this number.
If your EIN previously has been assigned to another agency within your jurisdiction, the Office of the Comptroller will assign a new OJP vendor number to you. The new assigned number is to be used for administrative purposes only, in connection with this award program, and should not be used for IRS purposes.
ORI (Originating Agency Identifier) number. This number is assigned by the FBI and is your agency's originating agency identifier. The first two letters are your state abbreviation, the next three numbers are your county's code, and the final two numbers identify your jurisdiction within your county. When you contact the COPS Office with a question, you can use the ORI number, and we will be able to assist you. If you are a previous COPS Office award recipient, you may have been assigned an ORI number through the COPS Office if the FBI had not previously assigned your agency this identifier number.
primary law enforcement authority. An agency with primary law enforcement authority is defined as the first responder to calls for service for all types of criminal incidents within its jurisdiction. Agencies are not considered to have primary law enforcement authority if they only respond to or investigate specific type(s) of crime(s); respond to or investigate crimes within a correctional institution; serve warrants; provide courthouse security; transport prisoners; and/or have cases referred to them for investigation or investigational support.
Public Safety Partnership and Community Policing Act of 1994. The COPS Office is charged with fulfilling the mandates of this law. The purposes of the law are to
• increase the number of community policing officers on the beat; • provide additional and more effective training to law enforcement officers to enhance their problem solving,
service, and other skills needed in interacting with members of the community; • encoura.ge the development and implementation of innovative programs to permit members of the
community to assist law E;nforcement agencies in the.prevention of crime; • encourage the development of new technologies to assist law enforcement agencies in reorienting the
emphasis of their activities from reacting to crime to preventing crime.
recipient. A non-Federal entity that receives a Federal award directly from a Federal awarding agency to carry out an activity under a federal program. The term recipient does not include subreciplents. See also §200.69 NonFederal entity." 2 CFR 200.86
school resource officer (SRO). A career law enforcement officer, with sworn authority, deployed in communityoriented policing, and assigned by the employing police department or agency to work in collaboration with schools and community-based organizations to (a) address crime and disorder problems, gangs, and drug activities affecting or occurring in our around and elementary or secondary school; (b) deploy or expand crime prevention efforts for students; (C) educate likely school-age victims in crime prevention and safety; (d) develop or expand community Justice initiatives for students; (e) train students in conflict resolution, restorative justice, and crime awareness; (f) assist in the identification of physical changes in the environment that may reduce crime in or around the school; and (g) assist in developing school policy that addresses crime and to recommend procedural changes.

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supplanting. COPS Office award funds may not be used to supplant (replace) state, local, or Bureau of Indian Affairs (BIA) funds that would be made available In the absence of federal COPS Office award funding. Program funds must be used to increase the amount of state, local, or BIA funds otherwise budgeted for the award purposes, plus any additional state, local, or BIA funds budgeted for these purposes.
System for Award Management (SAM). Institutions applying for any type of award from the Federal Government must register with SAM. The SAM database is the repository for standard information about federal financial assistance applicants, recipients, and sub-recipients. Applicants must update or renew their SAM at least once per year to maintain an active status. Information about registration procedures can be accessed at www.sam,gov.

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Appendix B. Assurances
Several provisions of federal law and policy apply to all award programs. The Office of Community Oriented Policing Services ("COPS Office") needs to secure your assurance that the applicant will comply with these provisions. If you would like further information about any of these assurances, please contact your state's COPS Office Grant Program Specialist at 800-421-6770.
By signing this form, the applicant assures that It will comply with all legal and administrative requirements that govern the applicant for acceptance and use of federal award funds. In particular, the applicant assures us of the following:
1. It has been legally and officially authorized by the appropriate governing body (for example, mayor or city council) to apply for this award and that the persons signing the application and these assurances on its behalf are authorized to do so and to act on its behalf with respect to any issues that may arise during processing of this application.
2. It will comply with the provisions of federal law, which limit certain political activities of employees whose principal employment Is in connection with an activity financed in whole or in part with this award. These restrictions are set forth in 5 U.S.C. § 1501 et seq.
3. It will comply with the minimum wage and maximum hours provisions of the Fair Labor Standards Act (29 U.S.C. § 201 et seq.), if applicable.
4. It will establish safeguards, if it has not done so already, to prohibit employees from using their positions
for a purpose that is, or gives the appearance of being motivated by a desire for private gain for
themselves or others, particularly those with whom they have family, business or other ties. In addition, it will disclose (in writing) to the COPS Office any potential conflict of interest arising during the course of performance of the award and also will require such written disclosures by any subrecipients. 5. As required by 42 U.S.C. § 3796dd-6, it will give the U.S. Department of Justice or the Comptroller General access to and the right to examine records and documents related to the award. 6. It will comply with all requirements imposed by the U.S. Department of Justice as a condition or administrative requirement of the award, including but not limited to: the requirements of 2 C.F.R. Part 200 (Uniform Administrative Requirements, Cost Principles, and Audit Requirements for Federal Awards) as adopted by the U.S. Department of Justice in 2 C.F.R. § 2800.101; 48 C.F.R. Part 31 (FAR Part 31) {Contract Cost Principles and Procedures); the applicable provisions of the Omnibus Crime Control and Safe Streets Act of 1968, as amended; 28 C.F.R. Part 38 (Partnerships With Faith-Based and Other Neighborhood Organizations); the applicable COPS Office application guide; the applicable COPS Office award owner's manual; and with all other applicable program requirements, laws, orders, or regulations. 7. As required by 42 U.S.C. § 3796dd-l(c) (11), it will, to the extent practicable and consistent with applicable law, seek, recruit and hire qualified members of racial and ethnic minority groups and qualified women in order to further effective law enforcement by increasing their ranks within the sworn positions in the · agency. 8. It will not (and will require any subrecipient, contractors, successors, transferees, and assignees not to), on the grounds of race, color, religion, national origin, sex, or disability unlawfully exclude any person from participation in, deny the benefits of, or employment to any person, or subject any person to discrimination in connection with any programs or activities funded in whole or in part with federal funds. It will also not discriminate in the delivery of benefits or services based on age. These civil rights requirements are found In the non-discrimination provisions of Title VI of the Civil Rights Act of 1964, as amended (42 U.S.C. § 2000d); the Omnibus Crime Control and Safe Streets Act of 1968, as amended (42

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U.S.C. § 3789d); Section 504 of the Rehabilitation Act of 1973, as amended (29 U.S.C. § 794); the Age Discrimination Act of 1975, as amended (42 U.S.C. § 6101); Title IX of the Education Amendments of 1972, as amended (20 U.S.C. § 1681); and the corresponding U.S. Department of Justice regulations implementing those statutes at 28 C.F.R. Part 42 (subparts C, D, E, G, and I). It will also comply with Executive Order 13279, as amended by Executive Order 13559, and the implementing regulations at 28 C.F.R Part 38, Partnerships With Faith-Based and Other Neighborhood Organizations, which requires equal treatment of religious organizations in the funding process and prohibits religious discrimination against beneficiaries. A. In the event that any court or administrative agency makes a finding of discrimination on grounds of
race, color, religion, national origin, or sex against the applicant after a due process hearing, it agrees to forward a copy of the finding to the Office for Civil Rights, Office of Justice Programs, 810 7th Street, NW, Washington, D.C. 20531. B. If your organization is a government agency or private business and has received a single award for $25,000 or more and has fifty or more employees (counting both full- and part-time employees but excluding political appointees), then it has to prepare a Utilization Report and submit it to the Office for Civil Rights (OCR) within 120 days from the date of the award. Although the OCR has discretion to review all submitted Utilization Reports, it will review the Utilization Reports from recipients that receive an award of $500,000 or more.
To begin developing a Utilization Report, please consult the OCR's website at hill11ilwww.Qjp.usdgbgov/aboutlc>ci:fJ!=Atm and click EEOP Reporting Tool Login. Additional assistance can be found online at the bottom of the same webpage by clicking the EEO Reporting Tool Job Aid and Frequently Asked Questions.
If your organization has less than fifty employees or receives an award of less than $25,000 or is a nonprofit organization, a medical institution, an educational institution, or an Indian tribe, then it is exempt from the EEOP requirement. To claim the exemption, however, your organization must certify that it is exempt by logging into the EEO Reporting Tool on the OCR website at http:/fwww.ojp,.u~doi.gqy/about/ocr/e~_Jltm, providing the contact and organizational profile information, and then submitting a Certificate of Exemption.
If you have further questions regarding the EEOP requirements, you may contact an EEOP specialist at the OCR by telephone at 202-307-0690, by TTY at 202-307-2027, or by e-mail at EEOPforms@usdoj.gov.
9. Pursuant to U.S. Department of Justice guidelines (June 18, 2002 Federal Register, Volume 67, Number 117, pages 41455-41472), under Title VI of the Civil Rights Act of 1964, it will ensure meaningful access to its programs and activities by persons with limited English proficiency.
10. It will ensure that any facilities under its ownership, lease or supervision which shall be utilized in the accomplishment of the project are not listed on the Environmental Protection Agency' (EPA) list of Violating Facilities and that it will notify us if advised by the EPA that a facility to be used in this grant is under consideration for such listing by the EPA.
11. If the applicant's state has established a review and comment procedure under Executive Order 12372 and has selected this program for review, it has made this application available for review by the state Single Point of Contact.

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12. It will submit all surveys, interview protocols, and other information collections to the COPS Office for submission to the Office of Management and Budget for clearance under the Paperwork Reduction Act of 1995 if required.
13. It will comply with the Human Subjects Research Risk Protections requirements of 28 C.F.R. Part 46 if any part of the funded project contains non-exempt research or statistical activities which involve human subjects and also with 28 C.F.R. Part 22, requiring the safeguarding of individually identifiable information collected from research participants.
14. Pursuant to Executive Order 13043, it will enforce on-the-job seat belt policies and programs for employees when operating agency-owned - or - rented or personally-owned vehicles.
15. As required by 42 U.S.C. § 3796dd-3(a), it will not use COPS Office funds to supplant (replace) state, local, or Bureau of Indian Affairs funds that otherwise would be made available for the purposes of this award, as applicable.
16. If the award contains a retention requirement, it will retain the increased officer staffing level or the increased officer redeployment level, as applicable, with state or local funds for a minimum of 12 months following expiration of the award period.
17. It will not use any federal funding directly or indirectly to influence in any manner a Member of Congress, a jurisdiction, or an official of any government, to favor, adopt, or oppose, by vote or otherwise, any legislation, law ratification, policy or appropriation whether before or after th.e introduction of any bill, measure, or resolution proposing such legislation, law, ratification, policy or appropriation as set forth in the Anti- Lobby Act, 18 U.S.C. § 1913.
18. In the event that a portion of award reimbursements are seized to pay off delinquent federal debts through the Treasury Offset Program or other debt collection process, it agrees to increase the nonfederal share (or, if the award does not contain a cost sharing requirement, contribute a nonfederal share) equal to the amount seized in order to fully implement the award project.
False statements or claims made in connection with COPS Office award may result in fines, imprisonment, debarment from participating in federal awards or contracts, and/or any other remedy available by law.
I certify that the assurances provided are true and accurate to the best of my knowledge.
Elections or other selections of new officials will not relieve the recipient of its obligations under this award.
Signature of Law Enforcement Executive/Agency Executive Date
(For your electronic signature, please type in your name)
Signature of Government Executive/Financial Official Date
(For your electronic signature, please type in your name)

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Appendix C. Certifications Regarding Lobbying; Debarment, Suspension and Other Responsibility Matters; Federal Taxes and Assessments; Drug-Free Workplace Requirements; and Coordination with Affected Agencies.
Although the U.S. Department of Justice has made every effort to simplify the application process, other provisions of federal law require us to seek your agency's certification regarding certain matters. Applicants should carefully review the statutes and regulations cited below and the instructions for certification to understand the requirements and whether they apply to a particular applicant. Signing this form complies with the certification and notice requirements under 28 C.F.R. Part 69 "New Restrictions on Lobbying"; 2 C.F.R. Part 2867 "Nonprocurement Debarment and Suspension"; 2 C.F.R. Part 200 "Uniform Administrative Requirements, Cost Principles, and Audit Requirements for Federal Awards"; the general provisions in the applicable Appropriations Act; 28 C.F.R. Part 83 "Government-Wide Requirements for Drug-Free Workplace (Grants)"; and the Public Safety Partnership and Community Policing Act of 1994. The certifications shall be treated as a material representation of fact upon which reliance will be placed when the U.S. Department of Justice determines to make the covered award.
1. Lobbying As required by 31 U.S.C. § 1352, implemented at 28 C.F.R. Part 69, for persons entering into a grant or cooperative agreement over $100,000, and 2 C.F.R. § 200.450 as adopted by the U.S. Department of Justice in 2 C.F.R. § 2800.101, the applicant certifies to the following:
A. No federal appropriated funds have been paid or will be paid, by or on behalf of the undersigned, to any person for influencing or attempting to influence an officer or employee of any agency, a member of Congress, an officer or employee of Congress, or an employee of a member of Congress in connection with the making of any federal grant; the entering into of any cooperative agreement; or the extension, continuation, renewal, amendment or modification of any federal grant or cooperative agreement.
B. If any funds other than federal appropriated funds have been paid or will be paid to any person for influencing or attempting to influence an officer or employee of any agency, a member of Cohgress, an officer or employee of Congress, or an employee of a member of Congress in connection with this federal grant or cooperative agreement, the undersigned shall complete and submit Standard Form LLL, "Disclosure of Lobbying Activities," in accordance with its instructions.
C. If applicant is a nonprofit organization or an institution of higher education, it will comply with the additional lobbying restrictions set forth in 2 C.F.R. § 200.450(c) as adopted by the U.S. Department of Justice in 2 C.F.R. § 2800.101.
D. The undersigned shall require that the language of this certification be included in the award documents for all subawards at all tiers (including subgrants, contracts under grants and cooperative agreements, and subcontracts) and that all subrecipients shall certify and disclose accordingly.

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2. Debarment, Suspension and Other Responsibility Matters (Direct Recipient) Pursuant to Executive Order 12549, Debarment and Suspension, as implemented at 2 C.F.R. Part 2867, for prospective participants in primary covered transactions, as defined at 2 C.F.R. § 2867.20(a), and other requirements, the applicant certifies that it and its principals:
A. Are not presently debarred, suspended, proposed for debarment, declared ineligible, sentenced to a denial of federal benefits by a state or federal court, or voluntarily excluded from covered transactions by any federal department or agency;
B. Have not within a three-year period preceding this application been convicted of a felony criminal violation under any federal law, or been convicted or had a civil judgment rendered against them for commission of fraud or a criminal offense in connection with obtaining, attempting to obtain, or performing a public (federal, state or local) or private agreement or transaction; violation of federal or state antitrust statutes or commission of embezzlement, theft, forgery, bribery, falsification or destruction of records, making false statements, tax evasion or receiving stolen property, making false claims, or obstruction of justice, or commission. of any offense indicating a lack of business integrity or business honesty that seriously and directly affects your present responsibility;
C. Are not presently indicted for or otherwise criminally or civilly charged by a governmental entity (federal, state or local) with commission of any of the offenses enumerated in paragraph B. of this certification; and
D. Have not within a three-year period preceding this application had one or more public transactions (federal, state or local) terminated for cause or default.
3. Mandatory Disclosure Pursuant to the Uniform Administrative Requirements, Cost Principles, and Audit Require.ments for Federal Awards, 2 C.F.R. § 200.113 as adopted by the U.S. Department of Justice in 2 C.F.R. § 2800.101, the applicant certifies that it:
A. Has not violated any federal criminal law involving fraud, bribery, or gratuity that may potentially affect the federa I award;
Shall timely disclose in writing to the federal awarding agency or pass-through entity, as applicable, any violation of federal criminal law involving fraud, bribery, or gratuity that may potentially affect the federal award; and
Shall require that the language of this certification be included in the award documents for all subawards (including subgrants and cooperative agreements) and shall require all subrecipients certify and disclose accordingly.
4. Federal Taxes and Assessments A. If applicable, an applicant who receives an award in excess of $5,000,000 certifies that, to the best of its knowledge and belief, the applicant has filed all federal tax returns required during the three years preceding the certification, has not been convicted of a criminal offense under the Internal Revenue Code of 1986, and has not, more than 90 days prior to certification, been notified of any unpaid federal tax assessment for which the liability remains unsatisfied, unless the assessment is the subject of an installment agreement or offer in compromise that has been approved by the Internal Revenue Service and is not in default, or the assessment is the subject of a non-frivolous administrative or judicial proceeding.

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B. The applicant certifies that it does not have any unpaid federal tax liability that has been assessed, for which all judicial and administrative remedies have been exhausted or have lapsed, and that is not being paid in a timely manner pursuant to an agreement with the authority responsible for collecting the tax liability.
5. Drug-Free Workplace As required by the Drug-Free Workplace Act of 1988 (41 U.S.C. § 8103), implemented at 28 C.F.R. Part 83, for recipients other than individuals as defined at 28 C.F.R. § 83.660 -
A. The applicant certifies that it will, or will continue to, provide a drug- free workplace by doing the following:
(i) Publishing a statement notifying employees that the unlawful manufacture, distribution, dispensing, possession or use of a controlled substance is prohibited in the grantee's workplace and specifying the actions that will be taken against employees for violation of such prohibition; (ii) Establishing an on-going drug-free awareness program to inform employees about -
(a) the dangers of drug abuse in the workplace; (b) the grantee's policy of maintaining a drug-free workplace;
(c) any available drug counseling, rehabilitation and employee assistance programs; and
(d) the penalties that may be imposed upon employees for drug-abuse violations occurring in the workplace; (iii) Making it a requirement that each employee to be engaged in the performance of the grant be given a copy of the statement required by paragraph (i); (iv)Notifying the employee in the statement required by paragraph (i) that, as a condition of employment under the grant, the employee will -
(a) abide by the terms of the statement; and
(b) notify the employer in writing of his or her conviction for a violation of a criminal drug statute occurring in the workplace no later than five calendar days after such conviction; (v) Notifying the agency in writing within 10 calendar days after receiving notice under subparagraph (iv)(b) from an employee or otherwise receiving actual notice of such conviction. Employers of convicted employees must provide notice, including position title, to: COPS Office, 145 N Street, NE, Washington, D.C. 20530. Notice shall include the identification number(s) of each affected grant;
(vi) Taking one of the following actions within 30 calendar days of receiving notice under subparagraph (iv)(b) with respect to any employee who is so convicted -
(a) Taking appropriate personnel action against such an employee, up to and including termination, consistent with the requirements of the Rehabilitation Act of 1973, as amended; or
(b) Requiring such employee to participate satisfactorily in a drug abuse assistance or rehabilitation program approved for such purposes by a federal, state or local health, law enforcement or other appropriate agency;
(vii) Making a go_od faith effort to continue to maintain a drug-free workplace through implementation of paragraphs (i), (ii), (iii), (iv), (v), and (vi).

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B. The applicant further certifies that it will identify all known workplaces under each COPS Office award, keep the identification documents on file, and make them available for inspection upon request by the U.S. Department of Justice officials or their designated representatives.
6. Coordination As required by 42 U.S.C. § 3796dd-l(c)(S) of the Public Safety Partnership and Community Policing Act of 1994, applicants must certify that there has been appropriate coordination with all agencies that may be affected by the applicant's grant proposal if approved. Affected agencies may include, among others, the Office of the United States Attorney, state or local prosecutors, or correctional agencies. The applicant certifies that there has been appropriate coordination with all affected agencies.
Ill Where the applicant is unable to certify to any of the statements in this Certifications form, he or she shall attach an explanation to this application regarding the particular statement that cannot be certified. Please check the box . if an explanation is attached to this application. Please note that the applicant is still required to sign the Certifications form to certify to all the other applicable statements.
False statements or claims made In connection with COPS Office awards may result in fines, imprisonment, debarment from participating in federal awards or contracts, and/or any other remedy available by law. I certify that the assurances provided are true and accurate to the best of my knowledge. Elections or other selections of new officials will not relieve the recipient entity of its obligations under this award.
Signature of Law Enforcement Executive/Agency Executive Date (For your electronic signature, please type in your name)
Signature of Government Executive/Financial Official Date (For your electronic signature, please type In your name)

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Appendix D. Compliance with 8 U.S.C. 1373
1. Authority to obligate or expend contingent on compliance with 8 U.S.C. 1373 NOTE: This grant condition applies only to State or local government entities or to non-State or local government entities that make subawards with these funds to a State or local government entity.
State or local government entity recipients of this award, and any subrecipient of this award at any tier that is an entity of a State or of a unit of local government, may not obligate or expend award funds if - at the time of the obligation or expenditure-the "program or activity" of the recipient funded in whole or in part with the award funds (which includes any such program or activity of any subrecipient at any tier) is subject to any prohibitions or restrictions on sending to, requesting or receiving from, maintaining, or exchanging information on citizenship or immigration status as described in 8 U.S.C. 1373(a) or (b), including any prohibitions or restrictions imposed or established by a State or local government entity or official.
A subrecipient of this award (at any tier) that is an entity of a State or of a unit of local government may not obligate or expend award funds if - at the time of the obligation or expenditure - the "program or activity" of the subrecipient (which includes any such program or activity of any subrecipient at any further tier) funded (in whole or in part) with award funds is subject to any prohibitions or restrictions on sending to, requesting or receiving from, maintaining, or exchanging information on citizenship or immigration status as described in 8 U.S.C. 1373(a) or (b}, including any prohibitions or restrictions imposed by a State or local government entity or official.
Any obligations or expenditures of a recipient or subrecipient that are impermissible under this condition shall be unallowable costs for purposes of this award.
Rules of Construction. For purposes of this condition, "program or activity" means what it means under section 606 of title VI of the Civil Rights Act of 1964 (42 U.S.C. 2000d-4a).
Pursuant to 8 U.S.C. 1551 note, references to the Immigration and Naturalization Service in 8 U.S.C. 1373 are to be read, as a legal matter, as references to particular components of the U.S. Department of Homeland Security.
Should any provision of a condition of this award be held to be invalid or unenforceable by its terms, then that provision shall first be applied with a limited construction so as to give it the maximum effect permitted by law (to any person or circumstance) under this award. Should it be held, instead, that a condition (or a provision thereof} is of utter invalidity or unenforceability, such conditi'on (or such provision) shall be deemed severable from this award.
Any questions about the meaning or scope of this condition should be directed, prior to acceptance of this award, to the Office of Community Oriented Policing Services Legal Division at 202-514-3750.

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Appendix E: Appendix II to Part 200-Contract Provisions for Non-
Federal Entity Contracts Under Federal Awards
In addition to other provisions required by the Federal agency or non-Federal entity, all contracts made by the non-Federal entity under the Federal award must contain provisions covering the following, as applicable.
(A) Contracts for more than the simplified acquisition threshold currently set at $150,000, which is the inflation adjusted amount determined by the Civilian Agency Acquisition Council and the Defense Acquisition Regulations Council (Councils) as authorized by 41 U.S.C. 1908, must address administrative, contractual, or legal remedies in instances where contractors violate or breach contract terms, and provide for such sanctions and penalties as appropriate. (B) All contracts in excess of $10,000 must address termination for cause and for convenience by the nonFederal entity including the manner by which it will be effected and the basis for settlement. (C) Equal Employment Opportunity. Except as otherwise provided under 41 CFR Part 60, all contracts that meet the definition of "federally assisted construction contract" in 41 CFR Part 60-1.3 must include the equal opportunity clause provided under 41 CFR 60-1.4(b), in accordance with Executive Order 11246, "Equal Employment Opportunity" (30 FR 12319, 12935, 3 CFR Part, 1964-1965 Comp., p. 339), as amended by Executive Order 11375, "Amending Executive Order 11246 Relating to Equal Employment Opportunity," and implementing regulations at 41 CFR part 60, "Office of Federal Contract Compliance Programs, Equal Employment Opportunity, Department of Labor." (D) Davis-Bacon Act, as amended (40 U.S.C. 3141-3148). When required by Federal program legislation, all prime construction contracts in excess of $2,000 awarded by non-Federal entities must include a provision for compliance with the Davis-Bacon Act (40 U.S.C. 3141-3144, and 3146-3148) as supplemented by Department of Labor regulations (29 CFR Part 5, "Labor Standards Provisions Applicable to Contracts Covering Federally Financed and Assisted Construction"). In accordance with the statute, contractors must be required to pay wages to laborers and mechanics at a rate not less than the prevailing wages specified in a wage determination made by the Secretary of Labor. In addition, contractors must be required to pay wages not less than once a week. The non-Federal entity must place a copy of the current prevailing wage determination issued by the Department of Labor in each solicitation. The decision to award a contract or subcontract must be conditioned upon the acceptance of the wage determination. The non-Federal entity must report all suspected or reported violations to the Federal awarding agency. The contracts must also include a provision for compliance with the Copeland "Anti-Kickback" Act (40 U.S.C. 3145), as supplemented by Department of Labor regulations (29 CFR Part 3;"Contractors and Subcontractors on Public Building or Public Work Financed in Whole or in Part by Loans or Grants from the United States"). The Act provides that each contractor or subrecipient must be prohibited from inducing, by any means, any person employed in the construction, completion, or repair of public work, to give up any part of the compensation to which he or she is otherwise entitled. The non-Federal entity must report all suspected or reported violations to the Federal awarding agency. (E) Contract Work Hours and Safety Standards Act (40 U.S.C. 3701-3708). Where applicable, all contracts awarded by the non-Federal entity in excess of $100,000 that involve the employment of mechanics or laborers must include a provision for compliance with 40 U.S.C. 3702 and 3704, as supplemented by Department of Labor regulations (29 CFR Part 5). Under 40 U.S.C. 3702 of the Act, each contractor must be required to compute the wages of every mechanic and laborer on the basis of a standard work week of 40 hours. Work in excess of the standard work week is permissible provided that the worker is compensated at a rate of not less than one and a halftimes the basic rate ot'pay for all hours worked in excess of 40 hours in the work week. The requirements of 40 U.S.C. 3704 are applicable to construction work and provide that no

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laborer or mechanic must be required to work in surroundings or under working conditions which are unsanitary, hazardous or dangerous. These requirements do not apply to the purchases of supplies or materials or articles ordinarily available on the open market, or contracts for transportation or transmission of intelligence. (F) Rights to Inventions Made Under a Contract or Agreement. If the Federal award meets the definition of "funding agreement" under 37 CFR §401.2 (a) and the recipient or subrecipient wishes to enter into a contract with a small business firm or nonprofit organization regarding the substitution of parties, assignment or performance of experimental, developmental, or research work under that "funding agreement," the recipient or subrecipient must comply with the requirements of 37 CFR Part 401, "Rights to Inventions Made by Nonprofit Organizations and Small Business Firms Under Government Grants, Contracts and Cooperative Agreements," and any implementing regulations issued by the awarding agency. (G) Clean Air Act (42 U.S.C. 7401-7671q.) and the Federal Water Pollution Control Act (33 U.S.C. 12511387), as amended-Contracts and subgrants of amounts in excess of $150,000 must contain a provision that requires the non-Federal award to agree to comply with all applicable standards, orders or regulations issued pursuant to the Clean Air Act (42 U.S.C. 7401-7671q) and the Federal Water Pollution Control Act as amended (33 U.S.C. 1251-1387). Violations must be reported to the Federal awarding agency and the Regional Office of the Environmental Protection Agency (EPA). (H) Debarment and Suspension (Executive Orders 12549 and 12689)-A contract award (see 2 CFR 180.220) must not be made to parties listed on the government-wide exclusions in the System for Award Management (SAM), in accordance with the 0MB guidelines at 2 CFR 180 that implement Executive Orders 12549 (3 CFR part 1986 Comp., p. 189) and 12689 (3 CFR part 1989 Comp., p. 235), "Debarment and Suspension." SAM Exclusions contains the names of parties debarred, suspended, or otherwise excluded by agencies, as well as parties declared ineligible under statutory or regulatory authority other than Executive Order 12549. (I) Byrd Anti-Lobbying Amendment (31 U.S.C. 1352)-Contractors that apply or bid for an award exceeding $100,000 must file the required certification. Each tier certifies to the tier above that it will not and has not used Federal appropriated funds to pay any person or organization for influencing or attempting to influence an officer or employee of any agency, a member of Congress, officer or employee of Congress, or an employee of a member of Congress in connection with obtaining any Federal contract, grant or any other award covered by 31 U.S.C. 1352. Each tier must also disclose any lobbying with non-Federal funds that takes place in connection with obtaining any Federal award. Such disclosures are forwarded from tier to tier up to the non-Federal award. (J) See §200.322 Procurement of recovered materials.
[78 FR 78608, Dec. 26, 2013, as amended at 79 FR 75888, Dec. 19, 2014]

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Appendix F: Appendix XII to Part 200-Award Term and Condition for Recipient Integrity and Performance Matters
General Reporting Requirement
If the total value of your currently active grants, cooperative agreements, and procurement contracts from all Federal awarding agencies exceeds $10,000,000 for any period of time during the period of performance of this Federal award, then you as the recipient during that period of time must maintain the currency of information reported to the System for Award Management (SAM) that is made available in the designated integrity and performance system (currently the Federal Awardee Performance and Integrity Information System (FAPIIS)) about civil, criminal, or administrative proceedings described in paragraph 2 of this award term and condition. This is a statutory requirement under section 872 of Public Law 110-417, as amended (41 U.S.C. 2313). As required by section 3010 of Public Law 111-212, all information posted in the designated integrity and performance system on or after April 15, 2011, except past performance reviews required for Federal procurement contracts, will be publicly available.
Proceedings About Which You Must Report
Submit the information required about each proceeding that: a. Is in connection with the award or performance of a grant, cooperative agreement, or procurement contract from the Federal Government; b. Reached its final disposition during the most recent five year period; and c. ls one of the following: (1) A criminal proceeding that resulted in a conviction, as defined in paragraph 5 of this award term and condition; (2) A civil proceeding that resulted in a finding of fault and liability and payment of a monetary fine, penalty, reimbursement, restitution, or damages of $5,000 or more; (3) An administrative proceeding, as defined in paragraph 5. of this award term and condition, that resulted in a finding of fault and liability and your payment of either a monetary fine or penalty of $5,000 or more or reimbursement, restitution, or damages in excess of $1001000; or (4) Any other criminal, civil, or administrative proceeding if: (i) It could have led to an outcome described in paragraph 2.c.(1), (2), or (3) of this award term and condition; (ii) It had a different disposition arrived at by consent or compromise with an acknowledgment of fault on your part; and (iii) The requirement in this award term and condition to disclose information about the proceeding does not conflict with applicable laws and regulations.

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Reporting Procedures
Enter in the SAM Entity Management area the information that SAM requires about each proceeding described in paragraph 2 of this award term and condition. You do not need to submit the information a second time under assistance awards that you received if you already provided the information through SAM because you were required to do so under Federal procurement contracts that you were awarded.
Reporting Frequency
During any period of time when you are subject to the requirement in paragraph 1 of this award term and condition, you must report proceedings Information through SAM for the most recent five year period, either to report new information about any proceeding(s) that you have not reported previously or affirm that there is no new information to report. Recipients that have Federal contract, grant, and cooperative agreement awards with a cumulative total value greater than $10,000,000 must disclose semiannually any information about the criminal, civil, and administrative proceedings.
Definitions
For purposes of this award term and condition: a. Administrative proceeding means a non-judicial process that is adjudicatory in nature in order to make a determination of fault or liability (e.g., Securities and Exchange Commission Administrative proceedings, Civilian Board of Contract Appeals proceedings, and Armed Services Board of Contract Appeals proceedings). This includes proceedings at the Federal and State level but only in connection with performance of a Federal contract or grant. It does not include audits, site visits, corrective plans, or Inspection of deliverables. b. Conviction, for purposes of this award term and condition, means a judgment or conviction of a criminal offense by any court of competent jurisdiction, whether entered upon a verdict or a plea, and includes a conviction entered upon a plea of nolo contendere. c. Total value of currently active grants, cooperative agreements, and procurement contracts includes(1) Only the Federal share of the funding under any Federal award with a recipient cost share or match; and (2) The value of all expected funding increments under a Federal award and options, even if not yet exercised. d. [Reserved)
[80 FR 43310, July 22, 2015)

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Appendix G: 41 U.S.C. § 4712 -Pilot program for enhancement of contractor protection from reprisal for disclosure of certain information
Prohibition of reprisals
(1) In general. An employee of a contractor, subcontractor, or recipient may not be discharged, demoted, or otherwise discriminated against as a reprisal for disclosing to a person or body described in paragraph (2) information that the employee reasonably believes is evidence of gross mismanagement of a Federal contract or grant, a gross waste of Federal funds, an abuse of authority relating to a Federal contract or grant, a substantial and specific danger to public health or safety, or a violation of law, rule, or regulation related to a Federal contract (including the competition for or negotiation of a contract) or grant. (2) Persons and bodies covered. The persons and bodies described in this paragraph are the persons and bodies as follows:
(A) A Member of Congress or a representative of a committee of Congress.
(B) An Inspector General. (C) The Government Accountability Office. (D) A Federal employee responsible for contract or award oversight or management at the relevant agency. (E) An authorized official of the Department of Justice or other law enforcement agency.
(F) A court or grand jury. (G) A management official or other employee of the contractor, subcontractor, or recipient who has the responsibility to investigate, discover, or address misconduct.
(3) Rules of construction. For the purposes of paragraph (1) (A) an employee who initiates or provides evidence of contractor, subcontractor, or recipient misconduct in any judicial or administrative proceeding relating to waste, fraud, or abuse on a Federal contract or award shall be deemed to have made a disclosure covered by such paragraph; and (B) a reprisal described in paragraph (1) is prohibited even if it is undertaken at the request of an executive branch official, unless the request takes the form of a non-discretionary directive and is within the authority of the executive branch official making the request.
Investigation of complaints
(1) Submission of complaint. A person who believes that the person has been subjected to a reprisal· prohibited by subsection (a) may submit a complaint to the Inspector General of the executive agency involved. Unless the Inspector General determines that the complaint is frivolous, fails to allege a violation of the prohibition in subsection (a), or has previously been addressed in another Federal or State judicial or administrative proceeding initiated by the complainant, the Inspector General shall investigate the complaint and, upon completion of such investigation, submit a report of the findings of the investigation to the person, the contractor or recipient concerned, and the head of the agency.

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(2) Inspector General action.
{A) Determination or submission of report on findings. Except as provided under subparagraph (B), the Inspector General shall make a determination that a complaint is frivolous, fails to allege a violation of the prohibition in subsection (a), or has previously been addressed in another Federal or State judicial or administrative proceeding initiated by the complainant or submit a report under paragraph (1) within 180 days after receiving the complaint.
(B) Extension of time. If the Inspector General is unable to complete an investigation in time to submit a report within the 180-day period specified in subparagraph (A) and the person submitting the complaint agrees to an extension of time, the Inspector General shall submit a report under paragraph (1) within such additional period of time, up to 180 days, as shall be agreed upon between the Inspector General and the person submitting the complaint.
(3) Prohibition on disclosure. The Inspector General may not respond to any inquiry or disclose any information from or about any person alleging the reprisal, except to the extent that such response or disclosure is
(A) made with the consent of the person alleging the reprisal;
(B) made in accordance with the provisions of section 552a of title 5 or as required by any other applicable Federal law; or
(C) necessary to conduct an investigation of the alleged reprisal.
(4) Time limitation. A complaint may not be brought under this subsection more than three years after the date on which the alleged reprisal took place.
Remedy and enforcement authority
(1) In general. Not later than 30 days after receiving an Inspector General report pursuant to subsection (b), the head of the executive agency concerned shall determine whether there is sufficient basis to conclude tha.t the contractor or recipient concerned has subjected the complainant to a reprisal prohibited by subsection {a) and shall either issue an order denying relief or shall take one or more of the following actions:
(A) Order the contractor or recipient to take affirmative action to abate the reprisal.
(B) Order the contractor onecipient to reinstate the person to the position that the person held before the reprisal, together with compensatory damages (including back pay), employment benefits, and other terms and conditions of employment that would apply to the person in that position if the reprisal had not been taken.
(C) Order the contractor or recipient to pay the complainant an amount equal to the aggregate amount of all costs and expenses (including attorneys' fees and expert witnesses' fees) that were reasonably incurred by the complainant for, or in connection with, bringing the complaint regarding the reprisal, as determined by the head of the executive agency.
(2) Exhaustion of remedies. If the head of an executive agency issues an order denying relief under paragraph (1) or has not issued an order within 210 days after the submission of a complaint under subsection (b), or in the case of an extension of time under paragraph (b)(2)(B), not later than 30 days after the expiration of the extension of time, and there is no showing that such delay is due to the bad faith of the complainant, the complainant shall be deemed to have exhausted all administrative remedies

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with respect to the complaint, and the complainant may bring a de nova action at law or equity against the contractor or recipient to seek compensatory damages and other relief available under this section in the appropriate district court of the United States, which shall have jurisdiction over such an action without regard to the amount in controversy. Such an action shall, at the request of either party to the action, be tried by the court with a jury. An action under this paragraph may not be brought more than two years after the date on which remedies are deemed to have been exhausted.
(3) Admissibility of evidence, An inspector General determination and an agency head order denying relief under paragraph (2) shall be admissible in evidence in any de nova action at law or equity brought pursuant to this subsection.
(4) Enforcement of orders. Whenever a person fails to comply with an order issued under paragraph (1), the head of the executive agency concerned shall file an action for enforcement of such order in the United States district court for a district in which the reprisal was found to have occurred. In any action brought under this paragraph, the court may grant appropriate relief, including injunctive relief, compensatory and exemplary damages, and attorney fees and costs. The person upon whose behalf an order was issued may also file such an action or join in an action filed by the head of the executive agency.
(5) Judicial review. Any person adversely affected or aggrieved by an order issued under paragraph (1) may obtain review of the order's conformance with this subsection, and any regulations issued to carry out this section, in the United States court of appeals for a circuit in which the reprisal is alleged in the order to have occurred. No petition seeking such review may be filed more than 60 days after issuance of the order by the head of the executive agency. Review shall conform to chapter 7 of title 5. Filing such an appeal shall not act to stay the enforcement of the order of the head of an executive agency, unless a stay is specifically entered by the court.
(6) Burdens of proof. The legal burdens of proof specified in section 1221(e) of title 5 shall be controlling for the purposes of any investigation conducted by an Inspector General, decision by the head of an executive agency, or judicial or administrative proceeding to determine whether discrimination prohibited under this section has occurred.
(7) Rights and remedies not waivabie. The rights and remedies provided for in this section may not be waived by any agreement, policy, form, or condition of employment.
Notification of employees
The head of each executive agency shall ensure that contractors, subcontractors, and recipients of the agency inform their employees in writing of the rights and remedies provided under this ·section, in the predominant native language of the workforce.
Construction
Nothing in this section may be construed to authorize the discharge of, demotion of, or discrimination against an employee for a disclosure other than a disclosure protected by subsection (a) or to modify or derogate from a-right or remedy otherwise available to the employee.

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Exceptions
(1) This section shall not apply to any element of the intelligence community, as defined in section 3(4) of the National Security Act of 1947 {SO U.S.C. 401a(4)). (2) This section shall not apply to any disclosure made by an employee of a contractor, subcontractor, or recipient of an element of the intelligence community if such disclosure--
(A) relates to an activity of an element of the intelligence community; or (B) was discovered during contract, subcontract, or recipient services provided to an element of the intelligence community.
Definitions
In this section: (1) The term "abuse of authority" means an arbitrary and capricious exercise of authority that is inconsistent with the mission of the executive agency concerned or the successful performance of a contract or award of such agency. (2) The term "Inspector General" means an Inspector General appointed under the Inspector General Act of 1978 and any Inspector General that receives funding from, or has oversight over contracts or awards funded, for or on behalf of, the executive agency concerned.
Construction
Nothing in this section, or the amendments made by this section, shall be construed to provide any rights to disclose classified information not otherwise provided by law.
Duration of section
This section shall be in effect for the four-year period beginning on the date that is 180 days after the date the enactment of this section.

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Appendix H. Intergovernmental review process, points of contact by
state
Executive Order 12372 requires applicants from state and local units of government or other organizations or individuals providing service within a state to submit a copy of the application to the state single point of contact (SPOC), if one exists and if this program has been selected for review by the state. Before the application due date, you must contact your state SPOC to find out if this program has been selected for review and comply with the state's process under Executive Order 12372. The Catalog of Federal Domestic Assistance reference for this program is number 16.710, "Public Safety and Community Policing Grants."
A current list of state SPOCs is listed at ht\.lIBL,'w_w"!,.a!f!JJve§~gQl{/Jg_g_eral-reglster/codification~!'CUYl/.~: ordetl!2372.html. States that are not listed have chosen not to participate in the intergovernmental review process and therefore do not have an SPOC.

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Appendix I. Federal Funding Accountability and Transparency Act (FFATA)-Reporting subaward and executive compensation award term
Appendix A to Part 170-Award term I. Reporting Subawards and Executive Compensation. a. Reporting offirst-tier subawards.
1. Applicability. Unless you are exempt as provided in paragraph d. of this award term, you must report each action that obligates $25,000 or more in Federal funds that does not include Recovery funds (as defined in section 1512(a)(2) of the American Recovery and Reinvestment Act of 2009, Pub. L. 111-5) for a subaward to an entity (see definitions in paragraph e. of this award term).
2. Where and when to report.
i. You must report each obligating action described in paragraph a.1. of this award term to
hJtp://www.fsrs.,ggy.
ii. For subaward information, report no later than the end of the month following the month in which the obligation was made. (For example, if the obligation was made on November 7, 2010, the obligation must be reported by no later than December 31, 2010.)
3. What to report. You must report the information about each obligating action that the submission
instructions posted at htt!ll/l!Mww.fsrs.gov specify.
b. Reporting Total Compensation of Recipient Executives. 1. Applicability and what to report. You must report total compensation for each of your five most highly compensated executives for the preceding completed fiscal year, if-
i. the total Federal funding authorized to date under this award is $25,000 or more; ti. in the preceding fiscal year, you received-
(A) 80 percent or more of your annual gross revenues from Federal procurement contracts (and subcontracts) and Federal financial assistance subject to the Transparency Act, as defined at 2 CFR 170.320 (and subawards); and
(B) $25,000,000 6r more in annual gross revenues from Federal procurement contracts (and subcontracts) and Federal financial assistance subject to the Transparency Act, as defined at 2 CFR 170.320 (and subawards); and Iii. The public does not have access to Information about the compensation of the executives through periodic reports filed under section 13(a) or lS(d) of the Securities Exchange Act of 1934 (15 U.S.C. 78m(a), 78o(d)) or section 6104 of the Internal Revenue Code of 1986. (To determine if the public has access to the compensation information, see the U.S. Security and Exchange
Commission total compensation filings at http_:/fwww.sec.gov/answers/execomp,htm.)

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2. Where and when to report. You must report executive total compensation described In paragraph b.1. of this award term:
i. As part of your registration profile at https:ljwww.sam.gov. . ii. By the end of the month following the month in which this award is made, and annually thereafter.
c. Reporting of Total Compensation of Subrecipient Executives.
1. Applicability and what to report. Unless you are exempt as provided in paragraph d. of this award term, for each first-tier subrecipient under this award, you shall report the names and total compensation of each of the subrecipient's five most highly compensated executives for the sub recipient's preceding completed fiscal year, ii-
i. in the subrecipient's preceding fiscal·year, the subrecipient received-
(A) 80 percent or more of its annual gross revenues from Federal procurement contracts (and subcontracts) and Federal financial assistance subject to the Transparency Act, as defined at 2 CFR 170.320 (and subawards); and
(Bl $25,000,000 or more in annual gross revenues from Federal procurement contracts (and subcontracts), and Federal financial assistance subject to the Transparency Act (and subawards); and
ii. The public does not have access to information about the compensation of the executives through periodic reports filed under section 13(a) or lS(d) of the Securities Exchange Act of 1934 (15 U.S.C. 78m(a), 78o(d)) or section 6104 of the Internal Revenue Code of 1986. (To determine if the public has access to the compensation information, see the U.S. Security and Exchange Commission total compensation filings at http:/Lwww.sec,g!!YLanswer~execorrrPfam.)
2. Where and when to report. You must report sub recipient executive total compensation described in paragraph c.1. of this award term:
i. To the recipient. ii. By the end of the month foll owing the month during which you make the subaward. For example, if a subaward is obligated on any date during the month of October of a given year (i.e., between October 1 and_ 31), you must report any required compensation information of the subrecipient by November 30 of that year.
d. Exemptions If, in the previous tax year, you had gross income, from all sources, under $300,000, you are exempt from the requirements to report:
i. Subawards,
and
ii. The total compensation of the five most highly compensated executives of any subrecipient.

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e. Definitions. For purposes of this award term: 1. Entity means all of the following, as defined in 2 CFR part 25: i. A Governmental organization, which is a State, local government, or Indian tribe; ·ii.A foreign public entity; iii. A domestic or foreign nonprofit organizatio.n; iv. A domestic or foreign for-profit organization; v. A Federal agency, but only as a subrecipient under an award or subaward to a non-Federal entity. 2. Executive means officers, managing partners, or any other employees in management positions. 3. Subaward: i. This term means a legal instrument to provide support for the performance of any portion of the substantive project or program for which you received this award and that you as the recipient award to an eligible sub recipient. ii. The term does not include your procurement of property and services needed to carry out the project or program (for further explanation, see Sec._ .210 of the attachment to 0MB Circular A-133, "Audits of States, Local Governments, and Non-Profit Organizations"). iii. A subaward may be provided through any legal agreement, including an agreement that you or a subrecipient considers a contract. 4. Subrecipient means an entity that: i. Receives a subaward from you (the recipient) under this award; and ii. Is accountable to you for the use of the Federal funds provided by the subaward.

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5. Total compensation means the cash and noncash dollar value earned by the executive during the
recipient's or subrecipient's preceding fiscal year and includes the following {for more information see 17 CFR 229.402{c){2)):
i. Salary and bonus. ii. Awards ofstock, stock options, and stock appreciation rights. Use the dollar amount
recognized for financial statement reporting purposes with respect to the fiscal year in accordance with the Statement of Financial Accounting Standards No. 123 {Revised 2004) {FAS 123R), Shared Based Payments.
iii. Earnings for services under non-equity incentive plans. This does not include group life, health,
hospitalization or medical reimbursement plans that do not discriminate in favor of executives, and are available generally to all salaried employees.
iv. Change in pension value. This is the change in present value of defined benefit and actuarial
pension plans.
v. Above-market earnings on deferred compensation which is not tax-qualified.
vi. Other compensation, if the aggregate value of all such other compensation {e.g. severance, termination payments, value of life insurance paid on behalf of the employee, perquisites or property) for the executive exceeds $10,000.

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Appendix J. System for Award Management (SAM) and universal identifier award term
Appendix A to Part 25-Award Term
I. System for Award Management and Universal Identifier Requirements
A. Requirement for System for Award Management
Unless you are exempted from this requirement under 2 CFR 25.110, you as the recipient must maintain the currency of your information in the SAM until you submit the final financial report required u·nder this award or receive the final payment, whichever is later. This requires that you review and update the information at least annually after the initial registration, and more frequently if required by changes in your information or another award term.
B. Requirement for unique entity identifier
If you are authorized to make subawards under this award, you: 1. Must notify potential subrecipients that no entity {see definition in paragraph Cof this award term) may receive a subaward from you unless the entity has provided its unique entity identifier to you. 2. May not make a subaward to an entity unless the entity has provided its unique entity identifier to you.
C. Definitions
For purposes of this award term:
1. System for Award Management (SAM) means the Federal repository into which an entity must provide
information required for the conduct of business as a recipient. Additional information about registration procedures may be found at the SAM Internet site {currently at http://www.sarn.gov).
2. Unique entity identifier means the identifier required for SAM registration to uniquely identify business
entities.
3. Entity, as it is used in this award term, means all of the following, as defined at 2 CFR part 25, subpart C:
a. A Governmental organization, which is a State, local government, or Indian Tribe; b. A foreign public entity; c. A domestic or foreign nonprofit organization; d. A domestic or foreign for-profit organization; and e. A Federal agency, but only as a subreciplent under an award or subaward to a non-Federal entity.
4. Subaward:
a. This term means a legal instrument to provide support for the performance of any portion of the substantive project or program for which you received this award and that you as the recipient award to an eligible sub recipient.
b. The term does not include your procurement of property and services needed to carry out the project or program {for further explanation, see 2 CFR 200.330). c. A subaward may be provided through any legal agreement, including an agreement that you consider a contract.

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2017 COPS Antl-Methamphetamlne Program (CAMP) Application Gulde 5. Subrecipient means an entity that: a. Receives a subaward from you under this award; and b. Is accountable to you for the use of the Federal funds provided by the subaward.
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Appendix K. Step-by-step instructions for two-part application submission process
FY 2017 COPS Office grant online application procedures
Note: If your agency has previously applied for grants using Grants.gov, and you already have an account set up with your username and password, please skip Step 1 and proceed to Step 2. For additional instructions on how to
register with Grants.gov please visit https;/hNw"!.,grants.gov/web/gr~rtilli!Jl.P[icants/9,rg~nlzatlon.r:JlElli.tratlon.htm)..
Step 1
Please click the link below for details on how to register with Grants.gov.
Steps for registering with Grants.gov h!!ps,;//www,gnu~,JIQYL.hel1Y~ml/h..filP..l index,htm?callingAp~=custom#t=Get Started%2FGet Started.htm.
Step 2. Submitting a COPS Office grant application using Grants.gov
1. Log in to www.grants.gov.
2. Scroll to the center of the page and click the"Apply for Grants" link in the center of the page. 3. Click on the "Download a Grant Application Package" link. 4. Scroll down to the "Funding Opportunity Number" box and enter COPS-CAMP-Application-2017. Then click on
uDownload Package." 5. Click the "Download" link at the bottom right of the page under the "Instructions & Application" heading. 6. To view the SF-424 instructions, click the "Download Application Instructions" link. 7. To start the application, click "Download Application Package," which is the second link. 8. Enter an application filing name of your choice {e.g., agency legal name and program type for which you are
applying) into the "Application File Name" text box, which is highlighted yellow with a red border. 9. In the "Mandatory Documents" field, do the following:
a. Select the "Application for Federal Assistance {SF-424)" document then click on the "Move Form to Complete" button so that the form appears under the "Mandatory Documents for Submission" field.
iii. Select "COPS Short Application Attachment to SF-424," then click the "Move Form to Complete" button so that the form appears under the "Mandatory Documents for Submission" field.
10. Select "Application for Federal ·Assistance" and click on the "Open Form" button. Be sure to fill in all required fields on the displayed documents, which are highlighted yellow with red borders. Last, select the program to which you are applying and enter or re-enter a correct ORI.
11. Click the "Save" button at the very top of the document.

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12. In the "Save As" dialogue box, do the following: a. Select a location that is easy to find within your computer (e.g., Desktop or My Documents).
b. Select the "Save" button to save the file to your selected location on your computer.
** Note: You will be required to save this document twice. You may either save it in the same location, which will
overwrite the first one, or save itin a different location for redundancy.
13. Click on the "Save & Submit" button at the top of the document. 14. In the "Save As" dialogue box, do the following:
a. Select a location that is easy to find within your computer (e.g., Desktop or My Documents). b. Select the "Save As" button to save the file to your selected location on your computer.
15. Enter your username and password for the authorized organizational representative (AOR). This is set up while registering with Grants.gov.
16. Wait until "Confirmation Page" appears to close the document. Take note of the grant ID number provided by Grants.gov for your file.
17. After the SF-424 has been successfully submitted, you will receive three e-mails from Grants.gov: a. One e-mail thanking the applicant for submission
b. A second e-mail confirming Grants.gov validation c. A third e-mail stating the application was received by the agency 18. Within one business day, you will receive one of two e-mails from the COPS Office: a. An e-mail stating your application passed the COPS Office validation and providing a link to the COPS
Office Application Program System.

Or b.

An e-mail stating that the COPS Office validation failed and that the issues must be corrected and resubmitted.

Correcting COPS Office validation errors
1. Open the application that was saved in step 12 above. 2. Edit fields that had errors. 3. Select the "Save & Submit" button. 4. In the "Save As" dialogue box, do the following:
a. Select a location that is easy to find within your computer (e.g., Desktop or My Documents). b. Select the "Save" button to save the file to your selected location on your computer.
Overwrite the existing application or save as a different file name on your computer. 5. Enter your username and password for the AOR account. 6. Wait until "Confirmation Page" appears to close the document.
Take note of the new grant ID number provided by Grants.gov for your file.

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7. After the SF-424 has been successfully submitted, you will receive three e-mails from Grants.gov. a. One e-mail thanking the applicant for submission.
b. A second e-mail confirming Grants.gov validation.
c. A third e-mail stating the application was received by the agency.
8. Within one business day, you will receive one of two e-mails from the COPS Office: a. An e-mail stating your application passed the COPS Office validation and providing a link to the COPS Office Application Program System.

Or b.

An e-mail stating that the.COPS Office validation failed and that the issues must be corrected and resubmitted.

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Paperwork Reduction ·Act Notice
The public reporting burden for this collection of information is estimated to be up to 11.3 hours per response, depending upon the COPS Office program being applied for, which includes time for reviewing instructions. Send comments regarding this burden estimate or any other aspects of the collection of this information, including suggestions for reducing this burden, to the Office of Community Oriented Policing Services, U.S. Department of Justice, 145 N Street NE, Washington, DC 20530; and to the Public Use Reports Project, Office of Information and Regulatory Affairs, Office of Management and Budget, Washington, DC 20503.
You are not required to respond to this collection of information unless it displays a valid 0MB control number. The 0MB control number for this application is 1103-0098, and the expiration date is 05/31/2020.

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About the COPS Office
The Office of Community Oriented Policing Services (COPS Office) is the component of the U.S. Department of Justice responsible for advancing the practice of community policing by the nation's state, local, territory, and tribal law enforcement agencies through information and award resources.
Community policing is a philosophy that promotes organizational strategies that support the systematic use of partnerships and problem-solving techniques, to proactively address the immediate conditions that give rise to public safety issues such as crime, social disorder, and fear of crime.
Rather than simply responding to crimes once they have been committed, mmmunity policing concentrates on preventing crime and eliminating the atmosphere of fear it creates. Earning the trust of the community and making those individuals stakeholders in their own safety enables law enforcement to better understand and address both the needs of the community and the factors that contribute to crime.
The COPS Office awards funding to state, local, territory, and tribal law enforcement agencies to hire and train community policing professionals, acquire and deploy cutting-edge crime fighting technologies, and develop and test innovative policing strategies. COPS Office funding also provides training and technical assistance to community members and local government leaders and all levels of law enforcement. The COPS Office has produced and compiled a broad range of information resources that can help law enforcement better address specific crime and operational issues, and help community leaders better understand how to work cooperatively with their law enforcement agency to reduce crime.
• Since 1994, the COPS Office has invested more than $14 billion to add community policing officers to the nation's streets, enhance crime fighting technology, support crime prevention initiatives, and provide training and technical assistance to help advance community policing.
• To date, the COPS Office has funded more than 129,000 additional officers to over 13,000 of the nation's 16,000 law enforcement agencies across the country In small and large jurisdictions alike.
• Nearly 700,000 law enforcement personnel, community members, and government leaders have been trained through COPS Office-funded training organizations.
• To date, the COPS Office has distributed more than 2 million topic-specific publications, training curricula, white papers, and resource CDs.
COPS Office resources, covering a wide breadth of community policing topics-from school and campus safety to gang violence-are available, at no cost, through Its on line Resource Center at www.cops.usdq1g_ov. This easy-tonavigate website is also the grant application portal, providing access to online application forms.

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U.S. Department of Justice Office of Community Oriented Policing Services 145 N Street NE Washington, DC 20530 To obtain details about COPS Office programs, call the COPS Office Response Center at 800-421-6770. Visit the COPS Office online:_www.cops.usd.lli,.gov Published May 2017

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EXHIBIT D

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The U.S. Department of Justice, Office of Community Oriented Policing Services (COPS Office, ',ll)Nw.cops.us!!Qi,gp)".) is pleased to announce that it Is seeking applications for funding for the COPS Office FY 2017 Anti-Heroin Task Force (AHTF) program. This program furthers the department's mission of advancing public safety through community policing by addressing the department's goal of assisting state, local, and tribal efforts to ·prevent or reduce crime and vio1!=nce.
2017 COPS Office Anti-Heroin Task Force (AHTF) Program Application Guide
CFDA#: 16.710
Funding Opportunity Number: COPS-AHTF-APPLICATION-2017
Eligibility
The fiscal year (FY) 2017 COPS Anti-Heroin Task Force Program (AHTF) is a competitive program with a focus on advancing public safety by providing funds to investigate illicit activities related to the distribution of heroin or unlawful distribution of prescription opioids, or unlawful heroin and prescription opioid traffickers through statewide collaboration. AHTF funds awarded in this program shall be used for investigative purposes to locate or investigate illicit activities, including activities related to the distribution of heroin or unlawful distribution of prescription opioids or unlawful diversion and distribution of prescription opioids. AHTF will be open to state law enforcement agencies with multijurisdictional reach and an interdisciplinary team (e.g. task force) structures. These state law enforcement agencies must have primary law enforcement authority over heroin and other opioids seizures.
All awards are subject to the availability of appropriated funds and any modifications or additional requirements that may be imposed by law.
Deadline/application period
The application period for the 2017 AHTF program begins May 22, 2017. All applications must be submitted July 10, 2017, at 7:59 p.m. EDT. Applications submitted after July 10, 2017, will not be considered for funding.
Completing an application under the AHTF solicitation is a two-step process. Applicants are first required to
register via www.g_rants~gQy and complete an SF-424, submitting It through the Grants.gov website. Once the SF-
424 has been submitted via Grants.gov, the COPS Office will send an invitation e-mail to the applicant with instructions on completing the second part of the AHTF application through the COPS Office Online Application System (see "Registration" on page 3 and "How to Apply" on page 14). if you have not renewed your COPS Office Account Access information, contact the COPS Office Response Center at ~kCopsfil:.@!!.sdoj.gov or 800-421-6770. An application is not considered submitted until both of these steps are completed.

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Contact information
For technical assistance with submitting the SF-424, call the Grants.gov customer service hotline at 800-518-4726, send questions via e-mail to g,_pport@Gran§.gov, or consult the Grants.gov Organization Applicant User Guide at htt~//www.grants,&Q!UjJell1L_html/helllL!.!!f!ex.htm. For programmatic assistance with the requirements of this program or with submitting the application through the COPS Office Online Application System, please call the COPS Office Response Center at 800-421-6770 or send questions via e-mail to AskCJ!P.sR!;J/!lusdoj.gov. U.S. Department of Justice Office of Community Oriented Policing Services Russell Washington, Acting Director
WWW,CQP£USQ.Qj"'1!0V
2017 COPS Office Anti-Heroin Task Force (AHTF) Program Application Guide
The COPS Office Application Guide is designed to assist applicants in applying for COPS Office award programs. This guide includes general information on the administrative and legal requirements governing the COPS Office AHTF Program as well as detailed program-specific information. For more information about COPS Office awards, please call the COPS Office Response Center at 800-421-6770.
U.S. Department of Justice Office of Community Oriented Policing Services 145 N Street NE Washington, DC 20530 Visit the COPS Office online: ~ww.cops.usi;i.QidlQ.V May 2017

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2017 COPS Office Anti~Heroin Task Force (AHTF) Program Application Guide
Contents
COPS Office Anti-Heroin Task Force (AHTF) Program (CFDA 16.710) Overview............................................................ 1 COPS Anti-Heroin Task Farce (AHTF) program description and federal award information .................................... 1
Registration ........... ,.,... ,... ,.,,,,,,,,.. ,,,,,,.. ,,...... ,.,,,,,,,.. ,,,,,,... ,,.... ,,,.. ,,,,,,,,,,.. ,.. ,,,.. ,,,,.. ,,,,......... ,,,,,,,,,,,,,,,,,,,,.... ,,,,,,,,,,,,,,,,,,,,3
Dead Ii ne: Application ........... ,.... ,.,.,,,,.. ,........... ,.,,..............................................,,,,,,.. ,.. ,,,,,,,,,.. ,,,,,,.. ,,,,,,,,,,,,.. ,,,,,,,,.. ,,.. ,,4
El igi bi lity Requirements ,,,,...... ,,,,,,,,,,,,,.... ,,,,,,,,,,,,.. ,.. ,,,,.. ,,,,,.. ,,,,,,,,,.. ,,,,,,,,,,,,,,,,,,,,,,,.. ,,,,,.. ,,,,,,,,,,,,,,,,,.. ,,... ,,,.,,,...... ,,,.. ,.. 5
Program-Specific Information ............ ,,,,,.. ,,.. ,,,,,,,,.. ,,,,,.... ,,...... ,.... ,,,,,,,,,,,.. ,,,,,,,.. ,.. ,.. ,,,,,.. ,,,,.. ,,.. ,,,,.. ,,.. ,,,.. ,,,.... ,,,,,.. ,,,.. , 6 Program goa I .,,....... ,,,.. ,,,,,.. ,,.. ,,,,.... ,,,.,.....................................,,.. ,.......... ,... ,... ,.... ,............................,,... ,,.... ,,,,,.... ,.. , 6 Length of award term, maximum federal share, and local share requirements.......................................................6 Federal funding: Allowable and unallowable costs:..................................................................................................7 Monitoring, reporting, and evaluation requirements ............................................................................................. 11
Pe rforma nee Measures ......................,,,..............................................................................,,,.,,,,.,.,..........................,.13
How to Apply/Application Submission ........................................................................................................................14 Electronic submission of the SF-424 in two parts via Grants.gov and the COPS Office website.............................14 Obtaining a Data Universal Numbering System (DUNS) number ............................................................................ 15 Registering with the System for Award Management (SAM) .................................................................................17 Geographic Names Information System (GNIS) ID number .................................................................................... 18 Dead Ii ne/Application period ....... ,................ ,.................................,.... ,.,,.....................................,.......................... 18 Helpful on line resources ........ ,,,,,, .. ,,.,,,,,,,,, ,,,,,, ..................................... ,., .... ,, ............... ,, ,, ..........,........................... 19 Audit requirement..,,,,, .... ,,,,,,,,,,,,,,, .... ,,,,,,.,.,,,,, .. ,.. ,,.,,,.,,,,, .. ,,, .. ,,,,,,,, .. ,,, .. ,,, .. ,,, .. ,, .. ,,,,,,,.,,,,,,,,,,,,,,.. ,,, ......... ,, .. ,,,, ..... ,19 Civil rights ,,,.. ,,,,,,,,.. ,,,.... ,,,,,.. ,,.. ,,,,,,.. ,.,,.. ,,,,.,,,.. ,,,.. ,,.. ,,.,.... ,,,.... ,,,,.. ,,.. ,,,.. ,,,.. ,,,,,,,.. ,.. ,,.. ,,,,,.......... ,,,,,,,,,,,,.. ,,.. ,,,,,,,.. ,19 Section 508 of the Rehabilitation Act.. ....................................................................................................................19 Award terms and conditions/Funding restrictions .... ,.. ,..............................................................................,.......... ,19 COPS Office Application Attachment to SF-424 ......................................................................................................33 Section 1. COPS Office program request .................................................................................................................38 Section 2, Agency eligibility information .................................................................................................................38 Section 3. General agency information ...................................................................................................................38 Section 4. Executive information ..........................................,.,., ......... ,., ..... ,.....................,.. ,, .. ,,.,,,,, .. ,.. ,,, .. ,,,,,,,,,,, .. ,40 Section 5. COPS Office officer request- Not applicable under the AHTF program ................................................40 Section 6. Law enforcement and community policing strategy ..............................................................................40 Section 7. Need for federal assistance ....................................................................................................................41
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Section 8. Continuation of project after federal funding ends................................................................................41 Section 9. School safety assessment - Not applicable under the AHTF program ...................................................41 Section 10. Executive summary...............................................................................................................................41 Section 11. Project description (narrative) ..............................................................................................................41 Section 12. Official partner(s) contact information.................................................................................................42 Section 13. Application attachments ......................................................................................................................42 Section 14. Budget detail worksheets and budget narrative attachment ..............................................................43 Section 15. Assurances and Certifications ...............................................................................................................51 Section 16A. Disclosure of lobbying activities .........................................................................................................51 Section l6B. Certification of Compliance with 8 U.S.C. 1373 ..................................................................................52 Section 17. Reviews and certifications ....................................................................................................................52 Section 18. Application data verification -Not applicable at time of application ..................................................53
Appendices ..................................................................................................................................................................54 Appendix A. Glossary of COPS Office program terms .............................................................................................54 Appendix B. Assurances ..........................................................................................................................................59 · Appendix C. Certifications Regarding Lobbying; Debarment, Suspension and Other Responsibility Matters; Federal Taxes and Assessments; Drug-Free Workplace Requirements; and Coordination with Affected Agencies . ............ .. .. ........... .. ....... ....··..... ·.................................................................................................................................62 Appendix D. Compliance with 8 U.S.C. 1373 ., .........................................................................................................66 Appendix E: Appendix II to Part 200-Contract Provisions for Non-Federal Entity Contracts Under Federal Awards .....................................................................................................................................................................67
Appendix F: Appendix XII to Part 200-Award Term and Condition for Recipient Integrity and Performance
Matters ....................................................................................................................................................................69 Appendix G: 41 U.S.C. § 4712 - Pilot program for enhancement of contractor protection from reprisal for disclosure of certain information ............................................................................................................................71 Appendix H. Intergovernmental review process, points of contact by state .......................................................... 75 Appendix I. Federal Funding Accountability and Transparency Act (FFATA)-Reporting subaward and executive compensation award term ......................................................................................................................................76 Appendix J. System for Award Management (SAM) and universal identifier award term ......................................80 Appendix K. Step-by-step instructions for two-part application submission process .............................................82
Paperwork Reduction Act Notice.................................................................................................................................84
About the COPS Office .................................................................................................................................................85
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2017 COPS Office AntiHHeroin Task Force (AHTF) Program Application Guide
COPS Office Anti-Heroin Task Force (AHTF) Program (CFDA 16.710) Overview
COPS Anti-Heroin Task Force (AHTF) program description and federal award information
This program is authorized under Omnibus Crime Control and Safe Streets Act of 1968, 42 U.S.C. 3796dd et seq., as amended, and the Violent Crime Control and Law Enforcement Act of 1994, Title I, Part Q, Public Law 103-322. Drug overdose deaths and opioid-involved deaths continue to increase in the United States. Deaths from drug overdose are.up among both men and women, all races, and adults of nearly all ages. More than three out of five drug overdose deaths involve an opioid, Opioids are substances that work on the nervous system in the body or specific receptors in the brain to reduce the intensity of pain. Overdose deaths from opioids, including prescription opioids and heroin, have more than quadrupled since 1999. Overdoses involving opioids killed more than 28,000 people in 2014. More than half of those deaths were from prescr'1ption opioids.' The FY 2017 COPS Anti-Heroin Task Force (AHTF) program is designed to advance public safety by providing funds to investigate illicit activities related to the distribution of heroin or unlawful distribution of prescription opioids or to unlawful heroin and prescription opioid traffickers through statewide collaboration. AHTF provides funding for 24 months directly to state law enforcement agencies with high rates of primary treatment admissions for heroin and other opioids. AHTF funds awarded in this program shall be used for investigative purposes to locate or investigate illicit activities, including activities related to the distribution of heroin or unlawful distribution of prescription opioids or unlawful diversion and distribution of prescription opioids. AHTF will be open to state law enforcement agencies with multijurisdictional reach and an interdisciplinary team (e.g., task force) structures. These state law enforcement agencies must have primary law enforcement authority over heroin and other opioids seizures. The COPS Office anticipates making approximately six 2017 AHTF awards for a total of approximately $10,000,000. Fu'nding requests under this program will be capped at $1,500,000 per award.
New Certification Requirement
All state or local government entity applicants (e.g., police departments, sheriff's departments, state police) are required to certify compliance with 8 U.S.C. § 1373 regarding prohibitions or restrictions on sending to, requesting or receiving from, maintaining, or exchanging information on citizenship or immigration status, including any prohibitions or restrictions imposed or established by a State or local government entity or official.
1 Rose A. Rudd et al., "Increases in Drug and Opioid-Involved Overdose Deaths-United States, 2010-2015," Morbidity and Mortality Weekly Report /MMWR) 65, no. 50-51 (December 30, 2016), 1445-1452, htms:f/www.cdc.g_o,y.fmrJLwJjvolumesj~wr.JJnm655051e1.htm.
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2017 COPS Office Anti-He_roin Task Force (AHTF) Program Application Guide
In FY 2017, all state or local government entity applicants (e.g., police departments, sheriff's departments, state police) are required to certify compliance with 8 U.S.C. § 1373 regarding prohibitions or restrictions on sending to, requesting or receiving from, maintaining, or exchanging information on citizenship or immigration status, including any prohibitions or restrictions imposed or established by a state or local government entity or official. This certification must be completed by the governing body's chief legal officer (e.g., city or county attorney).
a. Set up a new user and roles in the COPS Office Agency Portal at
lmJ1s://portal.<;QJ1s.usdoj.gov/. Establish accounts for the law enforcement executive (LE)/
program official (PO), government executive (GE)/ financial official (FO), and chief legal officer (CLO). b. Set up an e-signature in the COPS Office Agency Portal at
h.1tJl_'!'LLPortal.cops.usdoj,g.Q.\!L. Establish an electronic signature for all officials (LE/PO, GE/FO,
and CLO). This is critical as it enables your agency to sign important documents in the application process. We strongly recommend notifying your governing body's chief legal counsel of this certification requirement as soon as the AHTF application period opens so that they may conduct the required reviews necessary for completing the certification before the application deadline. Questions regarding the certification requirement may be directed to the COPS Office Legal Division at 202-5143750. Please be advised that a hold may be placed on any application if it is deemed that the applicant agency is not in good standing on other U.S. Department of Justice awards, has other award compliance issues that would make the applicant agency ineligible to receive COPS Office funding, or is not cooperating with an ongoing U.S. Department of Justice award review or audit. A hold may also be placed on any application if it is deemed that the applicant agency is not in compliance with federal civil rights laws or is not cooperating with an ongoing federal civil rights investigation. Misuse of COPS Office funds or failure to comply with all COPS Office award requirements may result in suspension or termination of award funds, the repayment of award funds, or other remedies available by law. Under the False Claim Act, any credible evidence that a person has submitted a false claim or has committed a criminal or civil violation of laws pertaining to fraud, conflict of interest, bribery, gratuity, or similar misconduct involving COPS Office funds may be referred to the Office of Inspector General (OIG). The OIG may be contacted at
Q!g,llotling_@~sdof.fill.11, or 800-869-4499.
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2017 COPS Office Anti-Heroin Task Force (AHTF) Program Application Gulde
Registration
All FY 2017 AHTF applicants are required to have a valid ORI number. The ORI number is assigned by the Federal Bureau of Investigation (FBI) and is your agency's unique identifier. Please contact the COPS Office Response Center at 800-421-6770 to verify your agency's ORI number. If you do not have an ORI number, a COPS Office Response Center Specialist will assign one to you for the purpose of tracking your award application. This is required before you begin your application on Grants.gov. In addition, the Federal Government requires that all applicants for federal awards and cooperative agreementswith the exception of individuals other than sole proprietors-have a Data Universal Numbering System (DUNS) number and be registered In the System for Award Management (SAM) database prior to submitting an application. See "Section 3: General Agency Information" on page 38 of this guide for more information regarding DUNS and SAM. Completing an application under the AHTF program is a two-step process. Applicants are first required to register
. via www.grants.gov and complete an SF-424, the government-wide standard application form for federal
assistance. Once you have registered and submitted your SF-424 through Grants.gov, you will receive an e-mail from the COPS Office within one business day with instructions on completing the second part of the AHTF application process, which is the COPS Office Application Attachment to the SF-424 through the COPS Office Online Application System. If you have not renewed your COPS Office Account Access information, contact the COPS Office Response Center at AskCopsR<;.@>usdoj,.gQ.y or 800-421-6770.
It is strongly recommended that applicants register immediately on www.grants,gov. In addition, applicants are
strongly encouraged to complete the SF-424 and section 1 on Grants.gov as quickly as possible. Any delays in registering with Grants.gov or submitting the SF-424 may result in insufficient time for processing your application through Grants.gov or the COPS Office Online Application System. For technical assistance with submitting the SF-424, call Grants.gov Customer Service Hotline at 800-518-4726, e-
mail ~YIW.Q_'1@JIT~nt5,gov, or consult the Grants.gov Applicant User Guide at ht!Ps:L/w""~,mnts.ggy/JJ.~!P /htmj/J,elp/Get StartedLGet Started.htm. See "How to Apply/Application Submission" on page 14 of this guide
for more information. For technical assistance with submitting the on line application via the COPS Office website, please call 800-4216770 or send questions via e-mail to 8skCopsRC@usdoj,gQ.y. See "How to Apply/Application Submission" on page 14 of this guide for more information.
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2017 COPS Office Anti-Heroin Task Force {AHTF) Program Application Guide
Deadline: Application
All completed applications must be submitted by July 10, 2017, at 7:59 p.m. EDT. Please see "How to Apply/Application Submission" for more information. Applications for this program must be submitted in two parts. First, applicants must apply on line via www.grants.gov to complete the SF-424. Applicants will then be directed to the COPS Office website (www.cops.usdoj.gov) to complete the second part of the application by July 10, 2017, at 7:59 p.m. EDT.
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2017 COPS Office Anti-Heroin Task Force {AHTF} Program Application Gulde
Eligibility Requirements
The COPS Anti-Heroin Task Force (AHTF) program is open to state law enforcement agencies with multijurisdictional reach and interdisciplinary team (e.g., task force) structures. These state law enforcement agencies must have primary authority over state seizures of heroin and other opioids. This program does not have a local match requirement. For additional information, please contact the COPS Office Response Center at 800-421-6770 or send qu~stions via e-mail to /lskCopsRC@usdo1&Q.v.
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2017 COPS Office AntiMHeroln Task Force {AHTF) Program Application Guide
Program-Specific Information
All awards are subject to the availability of appropriated funds and any modifications or additional requirements that may be imposed by law.
This solicitation is being announced as an open competition targeted at state law enforcement agencies authorized by law or by a state agency to engage in or to supervise anti-heroin investigative activities. Funding is limited and this solicitation is expected to be very competitive. Approximately $10,000,000 in funding may be available for the FY 2017 AHTF program and a maximum of $1,500,000 may be awarded to each _recipient. Strong applications should demonstrate a multijurisdictional reach and participation in interdisciplinary team structures {i.e., task forces). Strong applications should also include multiyear state level primary treatment data to supp_ort their proposal. The COPS Office reserves the right to limit awards to one per state at the time of award announcement.
Program goal
The FY 2017 AHTF program seeks to address the growing problem of heroin and other opioid abuse by assisting state law enforcement agencies in collaboration with other service providers and stakeholders to
• increase efforts to locate and investigate illicit heroin and other opioid activities; • establish new or enhance existing multijurisdictional and interdisciplinary task forces to investigate heroin
and other opioid activities; • increase the use of community policing strategies during the investigation phase {including problem solving,
partnerships, and organizational changes) to investigate heroin and other opioid activities; • increase anti-heroin collaboration efforts during investigations with federal, state, local, and tribal partners
involved in prevention, intervention, and treatment; identification of drug endangered children; and enforcement activities.
Length of award term, maximum federal share, and local share requirements
All awards will have a performance period of two years {24 months) in duration, and there is no local match required.
The COPS Office will review reasonable requests made for no-cost time extensions in the event that all funds awarded have not been expended within the two-year award period. AHTF recipients will be provided an opportunity to extend approximately 90 days prior to the award end date. Any extensions granted will be for time only and not for additional funding. Please be advised that all extension requests must be received by the COPS Office prior to the official award end date.
At present, this is a one-time funding opportunity, and the COPS Office expects that all items, personnel, and/or training requested will be purchased or hired and the project Implemented within the award period.
The COPS Office statutory nonsupplanting requirement mandates that AHTF funds must be used to supplement {increase) the recipient's budget and may not supplant (replace) state, local, or Bureau of'lndian Affairs {BIA) funds that a recipient would otherwise have spent on sworn officer positions in the absence of the AHTF award.
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2017 COPS Office Anti-Heroin Task Force {AHTF) Program Application Guide
Federal funding: Allowable and.unallowable costs
All items requested will be considered on a case-by-case basis during the budget review process. Items under the program must be purchased using the legislative guidelines established by the appropriations legislation that governs this funding. In addition, each item requested must programmatically link to the activities described in your application. To the greatest extent practical, all equipment and products purchased with these funds must be American~made.
Allowable costs: Fundable requests
Applications should include a clear and demonstrated plan for implementing comprehensive anti-heroin strategies. Each award application must explain how the proposed project would fit into an overall effort to increase and/or enhance heroin investigation efforts. Budget requests may be made in the categories described in the following sections.
Sworn officer positions (salaries and benefits)
Sworn officer salary and fringe benefits apply to new, full-time, sworn career law enforcement officers not already funded in the applicant's local budget. A "career law enforcement officer" is a person hired on a permanent basis who is authorized by law or by a state, local, or tribal agency to engage in or oversee the prevention, detection, and/or investigation of violations of criminal laws. Officers must be hired on or after the award start date, and positions must directly relate to the AHTF project. Officers previously employed by your agency may be re-hired using AHTF award funds. If current personnel are redeployed into this program, they must be paid with local funds. COPS Office award funds may be used to backfill the resulting vacancy with newly hired personnel for an equivalent amount of time. [Please note: Overtime for sworn officers engaging in AHTF-related activities is an allowable cost; however, any overtime expenses requested for sworn officer positions must be listed in the "Other Costs" section of your application's budget. Overtime expenses must exceed the expenditures that your agency is obligated or funded to pay in its current budget.]
Civi/ion/Nonsworn personnel (salaries and benefits)
Civilian salary and fringe benefits apply to new personnel not already funded in the applicant's local budget. Staff must be hired on or after the award start date and positions must directly relate to the AHTF project. Examples of allowable personnel and fringe benefits costs include those for civilian AHTF project coordinators or antiheroin/drug problem analysts.
Equipment/Technology
Equipment and/or technology costs shall provide agencies with the ability to purchase new or enhance existing equipment exclusively related to heroin investigations. All items requested must be clearly linked to the enhancement or implementation of the AHTF project.
Supplies
Generally, supplies include any materials that are expended or consumed during the course of the AHTF project. Such costs may include training manuals, paper, printer ink1 pens, postage, etc.
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2017 COPS Office Anti-Heroin Task Force {AHTF) Program Application Guide
Travel/Training
Travel/training costs include award-related travel costs for the recipient or other {non-recipient) individuals to attend AHTF-related training and technical assistance conferences, seminars, or classes or to visit a site specified in the application. Expenses for transportation, lodging, meals, incidental expenses {if travel is more than 50 miles from the program location), and temporary dependent care costs will be reviewed in accordance with applicable guidelines as part of the application process.
Contracts/Consultants
Consultant expenses and contracts include goods or services that directly contribute to the implementation or enhancement of the project. The use of a consultant should be more economical than direct employment. Contract/consultant costs may include costs to provide one-time training to staff for equipment operation/usage and contracting/consulting services that provide such things as needs analysis, installation, and testing. Compensation for individual consultant services procured under a COPS Office award must be reasonable and allocable in accordance with 0MB cost principles, and consistent with that paid for similar services in the marketplace. Unless otherwise approved by the COPS Office, consultant rates will be based on the salary a consultant receives from his or her primary employer, as applicable, up to $650 per day. For consultant or contractor rates that exceed $650 per day, the COPS Office requires written justification if the consultants or contractors are hired through a noncompetitive bidding process and recipients must receive COPS Office approval of those rates before drawing down funds. Determinations will be made on a case-by-case basis.
Other costs
Other costs may include such items as software and prepaid warranties or maintenance agreements {not to exceed 24 months), overtime costs for sworn officers engaging in AHTF-related investigative activities, or other miscellaneous items that have a direct correlation to the overall success of a recipient's project objectives and are necessary for the project to reach full implementation.
Applicants must provide sufficient.explanation for items requested via the "Budget Narrative" section of this application. Applicants will be notified of any points of clarification the COPS Office may require. Requests may be made only for items or positions that are not otherwise budgeted with state, local, or BIA funds and would not be funded in the absence of this COPS Office award.
In addition, any publication materials developed and/or purchased with federal award funds must contain the following designation: "This project was supported by Award Number _ _ awarded by the U.S. Department of Justice, Office of Community Oriented Policing Services. The opinions contained herein are those of the author{s) and do not necessarily represent the official position or policies of the U.S. Department of Justice. References to specific agencies, companies, products, or services should not be considered an endorsement by the author{s) or the U.S. Department of Justice. Rather, the references are illustrations to supplement discussion of the issues."
Unallowable costs: Requests will NOT be funded
The items listed below are generally considered to be unallowable and may only be funded under extremely limited and extenuating circumstances and at the discretion of the COPS Office based on clear demonstration of a direct link between the requested Item and the applicant's AHTF project. Before including any of these items in your project proposal, please contact the COPS Office Response Center at 800-421-6770.
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2017 COPS Office Anti-Heroin Task Force {AHTF) Program Application Guide
This is not an exhaustive list, and items not listed below will be reviewed on a case-by-case basis. The COPS Office reserves the right to deny funding for items that may not be included on this list. Agencies are expected to request items that show a direct link between the .requested item and the applicant's AHTF project. All requests must contribute directly to the specific purpose of the award project and relate to the parameters stipulated in the appropriations language enacted for FY 2017.
Requests for reimbursement of items purchased or expenses incurred prior to the award start date will not be funded.
Personnel
• Salaries and benefits of existing employees • Salaries and benefits of award writers or other staff who do not directly contribute to the implementation of
the program • Salaries and benefits for personnel engaged in prosecution
Please note: Restrictions on overtime costs are listed under "Supplies and Other Costs."
Equipment/Technology
• Armored vehicles • Bicycles • Body wire equipment • Bulletproof vests and accessories • Bunker shield(s) • Cellular or satellite phone airtime • Clandestine drug laboratory cleanup equipment • C6mmunications towers • Construction and renovation costs • Dictation systems • Fitness equipment • General police vehicles (Including patrol cars and leased vehicles) • Handcuffs, weapons, and ammunition (including training ammunition) • Incentives for research and/or participation in program activities • Office equipment (copiers, fax machines, etc.) • Pagers (including service time) • Phone lines and voice-mail systems • Prisoner transport vehicles • Radar guns/equipment • Standard issue police vehicle equipment (including light bars, cages, and siren packages) • Televisions /VCRs/DVD players/projectors • Trinkets and other conference takeaways • Unmanned aircraft systems (also commonly referred to as unmanned aerial vehicles or 11drones'1 ) • Weaponized aircraft and· vessels and weaponized vehicles of any kind
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2017 COPS Office Anti-Heroin Task Force {AHTF} Program Application Gulde
Travel/Training
• Local travel costs (lodging, meals, per diem, or transportation costs) within a SO-mile radius of the program location
• Mileage reimbursement, rental cars, parking fees, and/or taxi fare for local travel • Meals and/or refreshment costs associated with meetings • Training in topics that are not directly linked to the AHTF award
Contracts/Consultants
• Any consultant fees in excess of $650 per day must receive prior written approval from the COPS Office, contingent upon written justification by the recipient, if the consultant or contractor is hired through a noncompetitive bidding process
• Contractual agreements that cannot be directly linked to the AHTF award • Maintenance and/or service contracts that extend the life of the award period (multiyear contracts and
extended warranties are allowable but must be paid in full within the initial award period)
Supplies and other costs
• Animals • Clandestine laboratory cleanup costs • Education and awareness campaigns • Evaluation Costs • Indirect costs • Overtime for civilian positions • Overtime for personnel not directly involved in the department's project • Funding for buy-back and/or confidential informant purposes • Office furniture (desks, file cabinets, etc.) • Office rental/lease space • Naloxone • Standard office supplies not directly related to the AHTF award • Standard or dress uniforms or uniform accessories • Subawards • Treatment programs • Vehicle repairs/maintenance/fuel
This program will not provide funding for any positions or items that are funded in the applicant agency's budget with other sources of funding (state, local, or BIA). You may apply only for otherwise unfunded positions or items to supplement your agency's law enforcement budget.
Prohibited and Controlled Equipment:
COPS Office funds may not be used to purchase items listed at: https://www.bja.gov/publicatlons/ LEEWG Rep-0rt Final.Pl!(.
This controlled purchase list represents items controlled under the Executive Order on "Federal Support for Local Law Enforcement Equipment Acquisition" that was signed on January 16, 2015. Pursuant to Executive Order 13688 (Federal Support for Local Law Enforcement Equipment Acquisition), a federal inter-agency working group has

Case 3:17-cv-04701-WHO Document 11 Filed 10/13/17 Page 234 of 310
2017 COPS Office Anti-Heroin Task Force (AHTF) Program Application Guide
been charged with, developing a consistent government-wide list of controlled equipment allow-able for acquisition by LEAs, as well as a list of those items that can only be transferred with special authorization and use limitations.
No items on this list can be purchased without first submitting a detailed justification that supports the need for this equipment. Applicants must show both extraordinary and exigent circumstances that require the purchase of such equipment. The requested item must be an allowable cost under the program. Recipients are strongly encouraged to submit this justification at the time of application. In particular, any justification that cannot show the exigent nature of the purchase and why it could not be submitted at time of application may not be approved.
Monitoring, reporting, and evaluation requirements
Federal law requires that law enforcement agencies receiving federal funding from the Federal Government must be monitored to ensure compliance with their award conditions and other applicable statutory regulations. The COPS Office is also interested in tracking the progress of our programs and the advancement of community policing. Both aspects of award implementation-compliance and programmatic benefits-are part of the monitoring process coordinated by the U.S. Department of Justice. Award monitoring activities conducted by the COPS Office include site visits, enhanced office-based grant reviews, alleged noncompliance reviews, financial and programmatic reporting and audit resolution. If awarded funds, you agree to cooperate with and respond to any requests for information pertaining to your award in preparation for any of the above-referenced award monitoring activities.
Awarded agencies will be responsible for submitting Programmatic Progress Reports and Federal Financial Reports on a quarterly basis. Additionally, awarded agencies will be responsible for the timely submission of a final Closeout Report and any other required final reports. All COPS Office recipients will be required to participate in such award monitoring activities of the U.S. Department of Justice including, but not limited to, the COPS Office, the Office of the Inspector General, or any entity designated by the COPS Office.
Please note that the COPS Office may take a number of monitoring approaches, such as site visits, enhanced officebased grant reviews, alleged noncompliance reviews, and periodic surveys to gather information and to ensure compliance. The COPS Office may seek Information including, but not limited to, your agency's compliance with nonsupplanting and both programmatic and financial requirements of the award, and your agency's progress toward achieving your community policing strategy. Program and Monitoring Specialists as
well as auditors are particularly Interested in confirming that the purchase of items and/or services is consistent with the applicant's approved award budget as reflected on the Financial Clearance Memo and Final Funding Memorandum.
Though a formal assessment is not a requirement, awarded agencies are strongly encouraged to conduct an independent assessment of their respective award-funded projects. Project evaluations have proven to be valuable tools in helping departments identify areas in need of improvement, providing data of successful processes and reducing vulnerabilities.
Reporting
If awarded, recipients will be required to electronically submit their financial reports using the SF-425 form by the 30th day following the end of each calendar quarter, and a final report is due 90 days following the award end date. Recipients who do not submit SF-425 reports by the due date will be unable to drawdown funds.

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In addition, if awarded, recipients will be required to electronically submit quarterly progress reports and a final progress report. The COPS Office will notify the recipient when the progress report is due and provide instructions for submission.
Please feel free to contact the COPS Office Response Center at 800-421-6770 to discuss any questions or concerns you may have regarding the monitoring, reporting, and evaluation requirements.

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Performance Measures

To assist In fulfilling the U.S. Department of Justice's responsibilities under the Government Performance and Results Act Modernization Act (GPRA Modernization Act of 2010, P.l. 111-352, recipients who receive funding from the Federal Government must measure the results of work that funding supports. This Act specifically requires the COPS Office and other federal agencies to set program goals, measure performance against those goals, and publicly report progress In the form of funding spent, resources used, activities performed, services delivered, and results achieved.

Performance measures for AHTF are as follows:

Objective

Performance measures

Increase the capacity of law

To what extent to which COPS

enforcement agencies to

Office funding (e.g., officers,

implement community policing

equipment/training, technical

strategies that strengthen

assistance) has increased your

partnerships for safer communities agency's community policing

and enhance law enforcement's

capacity? To what extent to which

capacity to prevent, solve, and control crime through funding for

COPS Office knowledge resources (e.g., publications, podcasts,

personnel, technology, equipment, training) have increased your

and training.

agency's community policing

capacity?

Data recipient provides Data will be collected quarterly through recipient's progress reports. Recipients will rate the effectiveness of the CO PS AntiHeroin Task Force program funding in increasing community policing capacity.

COPS Office awards target increasing recipient capacity to implement community policing strategies within the three primary elements of community policing: (1) problem-solving; (2) partnerships; and (3) organizational transformation. The COPS Office requires all AHTF applicants to describe how the personnel, technology, equipment, or training requested will assist the applicant in implementing community policing strategies. For more information on community policing, please visit the COPS Office website at www.cops.usdpj.gov.

As part of the programmatic progress report, AHTF recipients will be required to report on their progress toward implementing community policing strategies. Based on the data collected from recipients, the COPS Office may make improvements to the AHTF program to better meet the program's objective and law enforcement agency needs.

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How to Apply/Application Submission

Primary Steps Required to Complete Application If necessary, request an ORI through the COPS Office Response Center at AskCopsRC@usdoj.gov or 800421-6770. If you have not renewed your COPS Office Account Access information since November 15, 2013, contact the COPS Office Response Center at AskCopsRC@usdoj.gov or 800-421-6770. Register with Grants.gov/Confirm registration.
Obtain a DUNS number/Confirm DUNS number.
Register with SAM database/Confirm SAM number.
Complete SF-424 on Grants.gov (funding number: COPS-AHTE-Appl ication-2017). Upon receipt of an e-mail from the COPS Office confirming successful submission of the SF-424 on Grants.gov, complete the second part of the application on the COPS Office Online Application System.

Complete?
D
D
D D D D
.
D

Electronic submission of the SF-424 in two parts via Grants.gov and the COPS Office website

Please read the following important information before attempting to submit your application via the COPS Office website:
• Completing an AHTF application is a two-step process. Applicants are first required to register via www.grants.gov and complete an SF-424. The Grants.gov funding code for this solicitation is COPS-AHTFApplication-2017. Once the SF-424 has been submitted, applicants will receive an e-mail from the COPS Office with instructions on completing the second part of the AHTF application through the COPS Office Online Application System. If you have not renewed your COPS Office Account Access information, contact the COPS Office Response Center at AskCopsRC@usdoj.gov or 800-421-6770.
• It is strongly recommended that applicants register immediately on Grants.gov. In addition, applicants are strongly encouraged to complete the SF-424 as quickly as possible. Any delays in registering with Grants.gov or submitting the SF-424 may result In insufficient time for processing your application through Grants.gov or the COPS Office Online Application System. An application is not considered submitted until you have submitted your SF-424 on Grants.gov and the second part of the application on the COPS Office website.
• Confirmation of submission: After completing the second part of the application and clicking "Submit," applicants will receive a message stating "Your application has been successfully recorded." The confirmation page will also provide the submission date, ORI, confirmation number, and program type.
• For technical assistance with submitting the SF-424, call the Grants.gov Contact Center at 800-518-4726 oremail fil!PJ1.!li:!.@Grant5.gov. For assistance with submitting the application through the COPS Office Online Application System, please call the COPS Office Response Center at 800-421-6770 or send questions via e, mail to AskCop§RC@ysdJ!j.gov.

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• To apply for funding, applicants must have. a DUNS number {DUNS numbers are required of all agencies requesting federal funding) and have an active registration with the System for Award Management {SAM) database.
• Applicants must comply with any word and field limit requirements described in the COPS Office Application Guide.
• Applicants will have the opportunity to print a copy of the application prior to submission and another copy of the application after it has been submitted. Please note that the application package cannot be submitted until all required fields have been completed. Note: If Internet access is not available to print a copy of the application package, contact the Response Center at 800-421-6770 to request that a printed copy be sent to you.
• Applicants will be able to print a copy of the application package only for reference while completing the application on line via the COPS Office website. The COPS Office will not accept applications submitted via mail or e-mail.
• Do not wait until the application deadline date to begin the application process through the COPS Office website. The registration steps may take several days to complete, and if you wait until the application deadline date you may be unable to submit your application online.
In addition, all applicants are required to maintain current registrations in the System for Award Management {SAM) database. SAM replaces the Central Contractor Registration {CCR) database as the repository for standard information about federal financial assistance applicants, recipients, and subrecipients. The U.S. Department of Justice requires that all applicants {other than individuals) for federal financial assistance maintain current registrations in the SAM database. Applicants must update or renew their SAM registration annually to maintain an active status.
Applicants that were previously registered in the CCR database must at a minimum
• create a SAM account;
• log in to SAM and migrate permissions to the SAM account {all the entity registrations and records should already have been migrated).
Applicants that were not previously registered in the CCR database must register in SAM prior to registering in Grants.gov. Information about SAM registration procedures can be accessed at www.san:i.,gQ.~.
Obtaining a Data Universal Numbering System (DUNS) number
The Federal Government requires that all applicants for federal awards and cooperative agreements, with the exception of individuals other than sole proprietors, have a Data Universal Numbering System {DUNS) number prior to application submission. The DUNS number is used to identify related organizations that are receiving funding under awards and cooperative agreements and to provide consistent name and address data for electronic award application systems. A DUNS number may be obtained by telephone at 866-705-7511 or via the Internet at
fedgov.dnb.com/y,,ebform.

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Data Universal Numbering System (DUNS) number
• The DUNS number is a unique nine- or thirteen-digit identification number provided by Dun & Bradstreet (D&B).
• The DUNS number is site-specific. Therefore, each distinct physical location of an entity (such as branches, divisions, and headquarters) may be assigned a DUNS number. Organizations should try to keep DUNS numbers to a minimum. In many instances, a central DUNS number with a DUNS number for each major division/department/agency that applies for an award may be sufficient.
• You should verify that you have a DUNS number or take the steps needed to obtain one as soon as possible, if there is a possibility you will be applying for future federal awards or cooperative agreements. There is no need to wait until you are submitting a particular application.
• If you already have a DUNS number. If you, as the entity applying for a federal award or cooperative agreement, previously obtained a DUNS number In connection with the federal acquisition process or requested or had one assigned to you for another purpose, you should use that number on all of your applications. It Is not necessary to request another DUNS number from D&B. You may request D&B to supply a family-tree report of the DUNS numbers associated with your organization. Organizations should work with D&B to ensure the right information is on the report. Organizations should not establish new numbers, but use existing numbers and update or validate the information.associated with the number.
• If you are not sure whether you have a DUNS number, call D&B using the toll-free number 866-705-5711 and indicate that you are a federal award applicant or prospective applicant. D&B will tell you if you already have a number. If you do not have a DUNS number, D&B will ask you to provide the information listed below and will immediately assign you a number, free of charge.
To obtain your DUNS number
• The requester may obtain a DUNS number via the Internet at fedgov.dnb.comLwebform. • The requester may also obtain a DUNS number via telephone at 866-705-5711. The phone is staffed from
8:00 a.m.to 6:00 p.m. (local time of the caller when calling from within the contiguous United States). Calls placed to the above number outside of those hours will receive a recorded message requesting the caller to call back between the operating hours. The process to request a number takes about 5-10 minutes. A DUNS number will be assigned at the conclusion of the call. You will need to provide the following information:
• Legal name • Headquarters name and address for your organization • Doing business as (DBA) or other name by which your organization is commonly known or
recognized • Physical address, city, state, and ZIP code • Mailing address (if separate from headquarters and/or physical address) • Telephone number • Contact name and title • Number of employees at your physical location
Managing your DUNS number
• D&B periodically contacts organizations with DUNS numbers to verify that their information is current. Organizations with multiple DUNS numbers may request a free family tree listing from D&B to help determine what branches or divisions have numbers and whether the information is current. Please call the dedicated toll-free DUNS number request line at 866-705-5711 to request your family tree.

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• D&B recommends that organizations with multiple DUNS numbers have a single point of contact for controlling DUNS number requests to ensure that the appropriate branches or divisions have DUNS numbers for federal purposes.
• As a result of obtaining a DUNS number you have the option to be included on D&B's marketing list that is sold to other companies. If you do not want your name or organization included on this marketing list, request to be de-listed from D&B's marketing file when you are speaking with a D&B representative during your DUNS number telephone application.
• Obtaining a DUNS number is absolutely free for all entities doing business with the Federal Government. This includes award and cooperative agreement applicants or prosp.ective applicants and federal contractors. Be certain to identify yourself as a federal award applicant or prospective applicant.
Registering with the System for Award Management (SAM)
Applicants for all federal awards are required to register with the System for Award Management (SAM). If your organization already has an Employer Identification Number (EIN), your SAM registration will take up to two weeks to process. If your organization does not have an EIN, then you should allow two to five weeks for obtaining the information from the IRS when requesting the EIN via phone, fax, mail, or Internet. Follow the steps listed below to register in the SAM:
To register in SAM, follow the next steps:
Step 1.
Obtain a DUNS number at www.dnb.com or call 866-705-5711.
Step 2.
Access the SAM on line registration through the SAM home page at www.sam.gov and follow the online instructions for new SAM users.
Step 3.
Complete and submit the on line registration. If you already have the necessary information on hand, the on line registration takes approximately 30 minutes to complete, depending upon the size and complexity of your business or organization. Please note that organizations must update or renew their SAM registration at least once a year to maintain an active status.
To migrate your legacy system user account from Central Contractor Registration °(CCR), Fed Reg, ORCA, or EPLS, you must first create a personal account in SAM by clicking on "Create an Account" on the homepage. An individual account is required to manage entity registrations in SAM. You will not be able to manage your registration unless you create a system account in SAM. Once you validate that you have access to the e-mail address you provided during the registration process and login, you will see a message on the user dashboard (My SAM) that will ask you, "Would you like to migrate a legacy system account?" Click "Yes" to begin the migration process. Alternatively, you may click on "Manage My User Roles," then on "Migrate Legacy Account" link to begin the migration process. The roles you had with the legacy system will be mapped to your SAM account.

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To update your entity's SAM registration, follow the next steps:
Step 1.
Go to the SAM homepage (ww)lll.sam.llQl/), enter your username and password, and then click the "Log In" button.
Step 2.
Select "Complete Registrations" under Registration/Update Entity" in the left navigation pane.
Step 3.
Select the entity record that you want to update and click the "Update" button.
For more details on updating your registration, please refer to the SAM User Guide, available at www.sam.gov.
If awarded funds, your agency must maintain the currency of your information in the SAM until you submit the final financial report required under this award or receive the final payment, whichever is later. This requires that you review and update the information at least annually after the initial registration, and more frequently if required by changes In your information or another award term.
To review the System for Award Management and Universal Identifier Award Term, please see the appendices of this guide.
Geographic Names Information System (GNIS) ID number
The Geographic Names Information System (GNIS) database is maintained by the U.S. Geological Survey, U.S. Department of the Interior. The database assigns a unique, permanent feature identifier, the feature ID, which is the only standard federal key for integrating or reconciling feature data from multiple datasets.
To determine your jurisdiction's feature ID number, follow these steps: • Go to !J!.~;L/geonames,u<;K~ov and click on "Search Domestic Names." • From this screen, you can enter the name of your jurisdiction (for example, "Cleveland"). • Select your state ("Ohio"). • Click "Send Query." (The results will show that Cleveland, Ohio, is a populated place with a feature ID of 1066654.) • Enter this seven-digit number into your application form. Some jurisdictions may have feature IDs of less than seven digits; for example, American University is a school in the District of Columbia with a feature ID of 531560. In this case, you should place a "O" in front of the number to ensure that seven digits are entered into the application form (e.g., 0531560).
Deadline/Application period
The application period for the 2017 AHTF Program begins May 22, 2017. All applications must be submitted by July 10 2017, at 7:59 p.m. EDT. Applications submitted after July 10 2017, at 7:59 p.m. EDT will not be considered for funding.

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Helpful online resources
DUNS Number Information: fedgov.dnb.com/webformjdlsQlfil'jiomep;,g_~Ao
System for Award Management (SAM): www.sam.g_ov
Audit requirement
The Uniform Administrative Requirements, Cost Principles, and Audit Requirements for Federal Awards at 2 C.F.R. _Part 200, Subpart F - Audit Requirements, available at .htt~wWW&ffr,!ll!l!Lfgl-bi'lftextidx?tpl=/ecfrbrqwse/Titie02/2cfr200 main...Qb!Q[, establish the requirements for organizational audits that apply to COPS Office recipients. Recipients must arrange for the required organization-wide (not award-by-award) audit in accordance with the requirements of Subpart F.
Civil rights
All recipients are required to comply with nondiscrimination requirements contained in various federal laws. A memorandum addressing federal civil rights statutes and regulations from the Office for Civil Rights, Office of Justice Programs will be included In the award package for recipients. All applicants should consult the Assurances form to understand the applicable legal and administrative requirements. Please be advised that a hold may be placed on this application if it is deemed that the applicant agency is not in compliance with federal civil rights law and/or is not cooperating with an ongoing federal civil rights investigation.
Section 508 of the Rehabilitation Act
If you are an applicant using assistive technology and you encounter difficulty when applying using the COPS Office online system (www,co~.usdoj,gov), please contact:
Donte Turner U.S. Department of Justice, COPS Office 202-616-9427 or Dqnte.Turne.r@usd<!1.gov
The department is committed to ensuring equal access to all applicants and will assist any applicant who may experience difficulties with asslstive technology when applying for awards using the COPS Office on line system.
Award terms and conditions/Funding restrictions
The following section describes the compliance terms and conditions that applicants should be aware of before applying to COPS Office programs. The table on page 20 further defines which of the legal requirements are applicable to the program for which you are applying. Please review each section carefully. The signatures of the applicant's Authorized Organizational Representative, Law Enforcement Executive/Program Official, and Government Executive/Financial Official on section 17: Reviews and Certifications a.ssure the COPS Office that your agency will comply with all legal and administrative requirements that govern the applicant for acceptance.

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l<ey: Y = Yes; N = No
FY 2017 Program Assurances Certifications Disclosure of Lobbying Activities Supplementing, Not Supplanting Sole Source Justification Criminal Intelligence Systems Certification to Mitigate Possible Adverse Health Safety & Environment Impacts Community Policing Self Assessment Tool (CP-SAT) System for Award Management (SAM) and Universal Identifier Requirements Federal Funding Accountability and Transparency Act (FFATA) • Reporting Subaward and Executive Compensation Contract Provisions Prior Approval Planning and Reporting of Conference/Meeting/Training Costs Curriculum Development Restriction on Internal Confidentiality Agreements Mandatory Disclosure Debarment and Suspension Recipient Integrity and Performance Matters False Statements Duplicative Funding Additional High-Risk Recipient Requirements Modification Evaluations Allowable Costs Local Match Equal Employment Opportunity Plan Employment Eligibility Whistleblower Protection Federal Civil Rights Conflict of Interest Reports/Performance Goals Extensions Computer Network Requirement Award Monitoring Activities Community Policing Retention Contracts and/or MO Us with Other Jurisdictions Travel Costs State Information Public Release Information News Media Paperwork Reduction Act Copyright XLIII. Human Subjects Research N XLIV. Compliance with 8 U.S.C. 1373 Y

AHTF y y y y y y
N N
y y
y y
N
y y y y y y y y y y
N
y y y y y y y y y y
N
y y y
N N
y
N

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I. & II. Assurances and Certifications (also refer to section 15 on page 51 of this
application guide and Standard Application forms}
Applicants to COPS Office programs are required to sign the standard Assurances and Certifications forms. Signing . these documents assures the COPS Office that you have read and understood and that you accept the terms and conditions as outlined In the Assurances and Certifications. Please read these documents carefully, as signatures on these documents are treated as material representation of fact upon which reliance will be placed when the U.S. Department of Justice determines to make an award.
Ill. Disclosure of Lobbying Activities (also refer to section 16 on page Si of this
application guide and Standard Application forms}
This disclosure form shall be completed by the reporting entity, whether sub recipient or prime federal recipient, at the Initiation or receipt of a covered federal action, or a material change to a previous filing, pursuant to title 31 U.S.C. § 1352. The filing of a form is required for each payment or agreement to make payment to any lobbying entity for influencing or attempting to influence an officer or employee of any agency, a member of Congress, an officer or employee of Congress, or an employee of a member of Congress in connection with a covered federal action. Complete all items that apply for both the initial filing and material change reports. Refer to the implementing guidance published by the Office of Management and Budget for additional information.
If this applies to your agency, you are required to complete the disclosure form in section 16 of the application. If you need to complete and submit additional forms, please complete and submit them as attachments to your application online.
IV. Nonsupplanting requirement
The COPS Office nonsupplanting requirement mandates that award funds not be used to replace state or local funds (or, for tribal recipients, BIA funds) that would, in the absence of federal assistance, be made available for award purposes (hiring, training, purchases, and/or other activities). Instead, award funds must be used to increase the total amount cif funds that would otherwise be made available for award purposes.
An award recipient may not use COPS Office funds to pay for any item or cost associated with this funding request that the recipient is already obligated to pay. Nonfederal funds allocated to pay for award purposes, may not be reallocated to other purposes or refunded should COPS Office funding be awarded. Nonfederal funds must remain available for and devoted to that purpose, with COPS Office funds supplementing those nonfederal funds. Funding awarded cannot be obligated until after the award start date (unless an exception is authorized in writing by the COPS Office). This means that COPS Office funds cannot be applied to any agency cost incurred prior to the award start date.
The possibility of supplanting will be the subject of careful application review, possible pre-award review, and postaward monitoring and audit. Any supplanting of nonfederal funds by COPS Office award funds may be grounds for potential suspension.
If you have questions concerning the nonsupplanting requirement while completing this application, please contact the COPS Office Response Center at 800-421-6770 or AskCopsRC@usdoj.gov for further information.

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V. Procurement and sole source justification
Sole source, or procurement by noncompetitive proposals, is procurement through solicitation of a proposal from only one source. Sole source procurements must adhere to the standards set forth In the Uniform Administrative Requirements, Cost Principles, and Audit Requirements for Federal Awards, 2 C.F.R. § 200.318, as adopted by the U.S. Department of Justice in 2 C.F.R. § 2800.101.
For the purchase of equipment, technology, or services under a COPS Office award, recipients must follow their own policies and procedures on procurement as long as those requirements conform to the federal procurement requirements set forth in 2 C.F.R. § 200.320 as adopted by the U.S. Department of Justice in 2 C.F.R. § 2800.101. A sole source justification request should be submitted if a recipient determines that the award of a contract through a competitive process is infeasible. If a recipient determines that the award of a contract through a competitive process is infeasible, and if one of the following circumstances applies- (1) the item or service is available only from one source; (2) the public exigency or emergency for the requirement will not permit a delay resulting from competitive solicitation; (3) competition is determined inadequate after solicitation of a number of sources. Based on one or more of the circumstances above, the COPS Office expressly authorizes noncompetitive proposals in response to a written request from the law enforcement entity-the award recipient must seek written authorization from the COPS Office for sole source procurements in excess of $150,000. Written approval for sole source procurements from the COPS Office must be received prioi to purchasing equipment, technology, or services; obligating funding for a contract; or entering into a contract with award funds.
Requests for sole source procurements of equipment, technology, or services in excess of $150,000 must be submitted to the COPS Office in writing certifying that the award of the contract through full and open competition is infeasible. The sole source request must be prepared on department letterhead.
The request should also include the following information:
Section I -A brief description of the project, the amount to be designated for the sole source procurement, and the purpose of the contract.
Section II -A statement identifying which one (or more) of the four circumstances identified below apply to the procurement transaction and an explanation as to why it is necessary to contract in a noncompetitive manner. include supporting information as identified below under the applicable section(s).
1. The item or service is available only from one source.
• Uniqueness of items or services to be procured from the proposed contractor or vendor (compatibility, patent issues, etc.)
• How the agency determined that the item or service is only available from one source (market survey results, independent agency research, patented or proprietary system, etc.)
• Explanation of need for contractor's expertise linked to the current project (knowledge of project management responsiveness, experience of contractor personnel, prior work on earlier phases of
1
project, etc.) • Any additional information that would support the case

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2. The public exigency or emergency for the requirement will not permit a delay resulting from competitive solicitation.
• When the contractual coverage is required by your department and why • Impact on project if deadline dates are not met • How long it would take an alternate contractor to reach the same required level of competence
(equate to dollar amounts, if desired) • Any additional information that would support the case
3. The COPS Office authorizes noncompetitive proposals in response to a written request from the recipient. 4. Competition is determined inadequate after solicitation of a number of sources.
• Results of a market survey to determine competition availability; if no survey is conducted, please explain why not
• Any additional information that would support the case
Section Ill - A declaration that this action or choice is in the best interest of the agency.
Upon receipt of the request for sole source authorization, the COPS Office will review to determine if competition . is infeasible, and your agency will be contacted if any of the identified information is missing or if additional
supporting information is required. If the COPS Office determines that the request does not meet the standards set forth above, th.e request will be denied.
Please be advised that conflicts of interest are prohibited under the procurement standards set forth in 2 C.F.R. § 200.318 as adopted by the U.S. Department of Justice in 2 C.F.R. § 2800.101.
If you have any questions regarding the federal requirements that guide procurement procedures, please contact the COPS Office Response Center at 800-421-6770.
. VI. Criminal intelligence systems/28 C.F.R. Part 23 compliance
If your agency is receiving COPS Office funding for equipment or technology that will be used to operate an interjurisdictional criminal intelligence system, you must agree to comply with the operating principles found at 28 C.F.R. Part 23. An "interjurisdictional criminal intelligence system" is generally defined as a system that receives, stores, analyzes, exchanges, or disseminates data regarding ongoing criminal activities (such activities may include, but are not limited to, loan sharking, drug or stolen property trafficking, gambling, extortion, smuggling, bribery, . and public corruption) and shares this data with other law enforcement jurisdictions. 28 C.F.R. Part 23 contains operating principles for these interjurisdlctional criminal information systems which protect individual privacy and constitutional rights.
If you are simply using the COPS Office funds to operate a single agency database (or other unrelated forms of technology) and will not share criminal Intelligence data with other jurisdictions, 28 C.F.R. Part 23 does not apply to this award.

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VII. Certification to mitigate possible adverse health, safety, and environmental impacts - Not applicable under any FY17 COPS Office programs
VIII. Community Policing Self-Assessment Tool (CP-SAT)- Not applicable under the AHTF program
IX. System for Award Management (SAM) and Universal Identifier requirements
Unless exempted from this requirement under 2 C.F.R. § 25.110, the recipients must maintain the currency of their information in the SAM until submission of the final financial report required under this award or receipt of the final payment, whichever is later. This requires recipients to review and update the information at least annually after the initial registration and more frequently if required by changes in information or other award term.
To review the System for Award Management and Universal Identifier Award Term, please see the appendices of this guide.
X. Federal Funding Accountability and Transparency Act (FFATA) - Reporting subaward and executive compensation information
The Federal Funding Accountability and Transparency Act of 2006 (FFATA) requires, among other things, that information on federal awards (federal financial assistance and expenditures) be made available to the public via a single, searchable website, which is www,.USASp_g11dlng.gov.
Applicants should note that all recipients of awards of $25,000 or more under this solicitation, consistent with FFATA, will be required to report award information on any first-tier subawards totaling $25,000 or more and, in certain cases, to report information on the names and total compensation of the five most highly compensated executives of the recipient and first-tier subrecipients. If applicable, the FFATA Subaward Reporting System (FSRS), accessible via the Internet at www.fsr~Q_~, is the reporting tool recipients under this solicitation will use to capture and report subaward information and any executive compensation data required by FFATA.
The subaward information entered in FSRS will then be displayed on www.USA~ending,gov, associated with the prime award, furthering federal spending transparency.
Each applicant entity must ensure that it has the necessary processes and systems in place to comply with the applicable reporting requirements should it receive funding.
To review the FFATA Reporting Subaward and Executive Compensation Award Term, please seethe appendices of this guide.
XI. Contract provision under federal award
All contracts made by the recipients under the Federal award must contain the provisions required under 2 C.F.R. part 200, Appendix II to Part 200-Contract Provisions for Non-Federal Entity Contracts Under Federal Awards.
For the full text of 2 C.F.R. Appendix II to Part 200, please refer to the appendices of this guide.

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XII. Prior approval, planning, and reporting of conference/meetings/training costs
Recipients are required to obtain written approval from the COPS Office prior to entering into any contract, agreement or other obligation for costs relat€d to any conference, meeting, retreat, seminar, symposium, training activity, or similar event funded und~r this award. For more information on allowable costs, please visit
www.ojp.gov/fundiQE/con/cost. htm.
XIII. Curriculum development- Not applicable under the AHTF program
XIV. Restrictions on internal confidentiality agreements
Recipients, subrecipients, or entities that receive a contract or subcontract with any funds under this award, may not require any employee or contractor to sign an internal confidentiality agreement or statement that prohibits or otherwise restricts the lawful reporting of waste, fraud, or abuse to an investigative or law enforcement representative of a federal department or agency authorized to receive such information.
XV. Mandatory disclosure
Recipients and subrecipients are required to timely disclose in writing to the COPS Office or pass-through entity, as applicable, all federal criminal law violations involving fraud, bribery, or gratuity that may potentially affect the awarded federal funding. Recipients agree to report certain civil, criminal, or administrative proceedings in SAM if they received an award with the Term and Condition for Recipient Integrity and Performance Matters as outlined in 2 C.F.R. Part 200, Appendix XII to Part 200. Failure to make required disclosures can result in any of the remedies, including suspension and debarment, described in 2C.F.R. § 200.338.
XVI. Debarment and Suspension
Recipients agree not to award federal funds under this program to any party which is debarred or suspended from participation in federal assistance programs.
XVII. Recipient Integrity and Performance Matters
Recipients that receive $500,000 or more in a federal award, agree to comply with the terms and conditions outlined in 2 C.F.R. Part 200, Appendix XII to part 200 -Term and Condition for Recipient Integrity and Performance Matters.
For the full text, please see the appendices of this guide.
XVIII. False Statements
False statements or claims made in connection with COPS Office awards may result in fines, imprisonment, or debarment from participating in federal awards or contracts, and/or any other remedy available by law.
XIX. Duplicative Funding
Recipients agree to notify the COPS Office if they receive, from any other source, funding for the same item(s) or service(s) also funded under this award.

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XX. Additional High-Risk Funding Recipient Requirements
Recipients agree to comply with any additional requirements that may be imposed during the award performance period if the awarding agency determines that the recipient is a high-risk recipient (Uniform Administrative Requirements, Cost Principles, and Audit Requirements for Federal Awards, 2 C.F.R. § 200.207 as adopted by the Department of Justice in 2 C.F.R. § 2800.101).
XXI. Modifications
Occasionally, a change in an agency's fiscal or law enforcement situation necessitates a change in its COPS Office award. Award modifications are evaluated on a case-by-case basis. All modification requests involving new budget items must be approved, in writing, by the COPS Office prior to their implementation. In addition, please be aware that the COPS Office will not approve any modification request that results in an increase of federal funds.
XXII. Evaluations
The COPS Office may conduct monitoring or sponsor national evaluations of COPS Office award programs. Recipients agree to cooperate with the monitors and evaluators.
XXIII. Allowable Costs
The funding under this award is for the payment of approved costs identified in the Financial Clearance Memorandum (FCM). Recipients may not earn or keep any profit resulting from the award unless expressly authorized, in writing, by the COPS Office.
XXIV. Local Match - Not applicable under the AHTF program
XXV. Equal Employment Opportunity Plan
Recipients agree to comply with the federal regulations pertaining to the development and implementation of an Equal Employment Opportunity Plan (28 C.F.R. Part 42 subpart E).
XXVI. Employment Eligibility
Recipients agree to complete and keep on file, as appropriate, a Bureau of Citizenship and Immigration Services Employment Eligibility Verification Form (1-9). This form is to be used by recipients of federal funds to verify that persons are eligible to work in the United States.
XXVII. Whistleblower Protection
Recipients agree not to discharge, demote, or otherwise discriminate against an employee as reprisal for the employee disclosing information that he/she reasonably believes is evidence of gross mismanagement of a federal contract or award, a gross waste of federal funds, an abuse of authority relating to a federal contract or award, a substantial and specific danger to public health or safety, or a violation of law, rule, or regulation related to a federal contract (including the competit'ion for or negotiation of a contract) or award. Recipients also agree to provide to their employees in writing (in the predominant native language of the workforce) of the rights and remedies provided in 41 U.S.C. § 4712. Please see the appendices of this guide for a full text of the statute.

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XXVIII. Federal Civil Rights
As a concjition of receipt of federal financial assistance, recipients acknowledge and agree that they will not (and will require any subrecipient, contractors1 successors, transferees, and assignees not to}, on the grounds of race, color, religion, national origin, sex, or disability unlawfully exclude any person from participation in, deny the benefits of, or employment to any person, or subject any person to discrimination in connection with any programs or activities funded In whole or in part with federal funds. They will also not discriminate in the delivery of benefits or services based on age. These civil rights requirements are found in the non-discrimination provisions of Title VI of the Civil Rights Act of 1964, as amended (42 U.S.C. § 2000d); the Omnibus Crime Control and Safe Streets Act of 1968, as amended (42 U.S.C. § 3789d); Section 504 of the Rehabilitation Act of 1973, as amended (29 U.S.C. § 794); the Age Discrimination Act of 1975, as amended (42 U.S.C. § 6101); Title IX of the Education Amendments of 1972, as amended (20 U.S.C. § 1681); and the corresponding U.S. Department of Justice regulations implementing those statutes at 28 C.F.R. Part 42 (subparts C, D, E, G, and I). They will also comply with . Executive Order 13279, as amended by Executive Order 13559, and the implementing regulations at 28 C.F.R Part 38, Partnerships With Faith-Based and Other Neighborhood Organizations, which requires equal treatment of religious organizations in the funding process and prohibits religious discrimination against beneficiaries.
XXIX. Conflict of Interest
Recipients must disclose in writing to the COPS Office or pass-through entity, as applicable, any potential conflict of interest affecting the awarded federal funding in accordance with the Uniform Administrative Requirements, Cost Principles, and Audit Requirements for Federal Awards, 2 C.F.R. § 200.112 as adopted by the Department of . Justice in 2 C.F.R. § 2800.101.
XXX. Reports/Performance Goals
Recipients are responsible for submitting quarterly programmatic progress reports that describe project activities during the reporting period and quarterly Federal Financial Reports using Standard Form 425 (SF-425). The progress report is used to track recipient's progress toward implementing community policing strategies and to collect data to gauge the effectiveness of increasing your agency's community policing capacity through COPS Office funding.
XXXI. Extensions
Recipients may request an extension of the award period to receive additional time to implement your award program. Such extensions do not provide additional funding. Awards may be extended a maximum of 24 months beyond the initial award expiration date. Any request for an extension beyond 24 months will be evaluated on a case-by-case basis. Only recipients that can provide a reasonable justification for delays will be granted no-cost extensions. Reasonable justifications may include technology implementation delays, procurement challenges, change in administration, staff turnover of key award/award-funded personnel, training delays, hiring and recruitment delays, or other circumstances that interrupt the 24-month award funding period. An extension allows recipients to compensate for such delays by providing additional time,to complete the full 24 months of funding. Extension requests must be received prior to the end date of the award.

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XXXII. Computer Network Requirement
Recipients agree that no award funds may be used to maintain or establish a computer network unless such network blocks the viewing, downloading, and exchanging of pornography. Nothing in this requirement limits the use of funds necessary for any federal, state, tribal, or local law enforcement agency or any other entity carrying out criminal investigations, prosecution, or adjudication activities.
XXXIII. Grant Monitoring Activities
Federal law requires that law enforcement agencies receiving federal funding from the COPS Office must be monitored to ensure compliance with their award conditions and other applicable statutory regulations. The COPS Office is also interested in tracking the progress of our programs and the advancement of community policing. Both aspects of award implementation-compliance and programmatic benefits-are part of the monitoring process coordinated by the U.S. Department of Justice. Grant monitoring activities conducted by the COPS Office include site visits, enhanced office-based grant reviews, alleged noncompliance reviews, financial and programmatic reporting, and audit resolution. Recipients agree to cooperate with and respond to any requests for information pertaining to their award.
XXXIV. Community Policing
Community policing activities to be initiated or enhanced by recipients were identified and described in their application. Recipients develop a community policing plan for the award with specific reference to a crime or disorder problem and the following elements of community policing: a) problem solving-a recipient's plan to assess and respond to the problem identified; b) community partnerships and support, including related governmental and community initiatives that complement a recipient's proposed use of funding; and c) organizational transformation-how a recipient will use the funds to reorient its mission to community policing or enhance its involvement in and commitment to community policing. Throughout the award period recipients are required to implement the community policing plan they set forth in the award application.
XXXV. Retention - Not applicable under the AHTF program
XXXVI. Contracts and/or MOUs with Other Jurisdictions
Equipment, technology, training, vehicles, sworn law enforcement officer positions, and civilian positions awarded may only be used for law enforcement activities or services that exclusively benefit the recipient/taskforce and the population that it serves.
XLIII. Travel Costs
Travel costs for transportation, lodging and subsistence, and related items are allowable under the AHTF Program with prior approval from the COPS Office. Payment for allowable travel costs will be in accordance with 2 C.F.R. § 200.474 (Uniform Administrative Requirements, Cost Principles, and Audit Requirements for Federal Awards) as adopted by the Department of J.ustice in 2 C.F.R. § 2800.101.

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XLIV. State Information Technology Point of Contact
Recipients agree to ensure that the appropriate State Information Technology Point of Contact receives written notification regarding any information sharing or technology project funded by a COPS Office award. This is to facilitate communication among local and state governmental entities regarding various information technology projects being conducted with these award funds. In addition, recipients agree to maintain an administrative file documenting the meeting of this requirement. For a list of State Information Technology Points of Contact, go to http://it.ojp.gov/defau1t.aspx?area=policyAndPractice&page=1046.
XXXIX. Public Release Information - Not applicable under the AHTF program
XL. News Media - Not applicable under the AHTF program
XU. Paperwork Reduction Act
Recipients agree, if required, to submit all surveys, interview protocols, and other information collections to the COPS Office for submission to the Office of Management and Budget (0MB) for clearance under the Paperwork Reduction Act (PWRA) of 1995.
XLII. Copyright- Not applicable under the AHTF program
XLIII. Human Subjects Research- Not applicable under the AHTF program
XLIV. Compliance with 8 U.S.C. 1373.
To obligate or expend FY 2017 award funding, all State or local government entities must comply with a new grant condition requiring compliance with 8 U.S.C. § 1373 regardingprohibitions or restrictions on sending to, requesting or receiving from, maintaining, or exchanging information on citizenship or immigration status, including any' prohibitions or restrictions imposed or established by a State or local government entity or official. This condition applies throughout the grant award period. The full text of this grant condition may be found in the appendices.
Application review information
The COPS Office is committed to ensuring a fair and open process for making awards. The COPS Office will review the application to make sure that the information presented is reasonable, understandable, measurable, achievable, and consistent with the solicitation.
This review will also assess whether costs are reasonable, necessary, and allocable under applicable federal cost principles and agency regulations. This financial review will be conducted by the COPS Office staff or in collaboration with the peer review process.
Peer reviewers will be reviewing the applications submitted under this program that meet eligibility and/or basic minimum requirements. Each program may use either internal peer reviewers, external peer reviewers, or a combination to review the applications under this solicitation. Applications that meet eligibility and basic minimum requirements will be evaluated and ranked by peer reviewers.

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Peer reviewers will review the applicant's project narrative and evaluate the following: (a) problem identification, (b) current activities, (c) task force participation, (d) collaboration and partnerships, (e) proposed strategies, and (f) budget items requested.
Successful applications will
• identify and describe the problem in detail using relevant facts, statistics, or other supporting information; • comprehensively detail their current investigative activities; • describe their participation, structure, responsibilities, and role in their task force or their plan to establish
one; • describe their current and proposed coliaboration efforts with federal, state, local, and/or tribal partners; • provide a budget that is complete, allowable, supports the total cost of the project, and directly relates to
and supports the activities described in the proposal.
Each section of the project narrative will be scored on the following scale:
5-Comprehensive. The application provides a thorough discussion of all elements identified for the section with no substantial weaknesses. The discussion is clear, detailed, and supported by the information provided. The information provided clearly supports the information provided in other sections of the application.
4-Substantial. The application provides a strong discussion of all key elements identified for the section. The discussion is clear, detailed, and supported by the information provided. A limited number of elements may be incomplete.
3-Satisfactory. The application provides an adequate discussion of all key elements identified for the section. The discussion is clear and supported by the information provided. Multiple elements may be incomplete.
2-Marginal. The application provides inadequate discussion of some elements identified for the section. The discussion may be unclear, lacking in detail, or not supported by the information provided.
1-Poor. The application lacks discussion of many elements identified for the section. The discussion provided is unclear, lacking in detail, and/or not supported by the information provided.
0-Unresponsive,
Applications that meet eligibility and basic minimum requirements will be evaluated and ranked, by peer reviewers as: not recommended, recommended, or highly recommended.
Highly recommended. The full proposal provides a superior explanation of the requested selection criteria and presents the material in a sound and/or innovative approach. The full proposal comprehensively addresses the requested selection criteria. The result of the proposal has the potential to make significant impact in the field. The panel highly recommends the proposal for funding by the COPS Office. The proposal does not require revisions or clarification.
Recommended. The full proposal provides a satisfactory design and demonstrates the potential for making an impact in the field. The full proposal addresses the requested selection criteria. The panel recommends possible funding but the proposal may need minor revisions and/or clarifications.
Not recommended. The full proposal does not provide satisfactory explanation of the requested selection criteria. The program approach is weak. The application needs significant revisions and clarifications.

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Within each of these rankings, each proposal will be ranked again based on primary treatment admissions data provided. The highest ranking proposals will be considered for funding.
Priority consideration will be given to applicants who receive a "Highly Recommended" rating AND were not previously fund.ed under the AHTF program.
Priority consideration may also be given to applicants that partner with federal law enforcement to address illegal immigration.
Prior to award, applications for potential awards will receive a financial integrity review to evaluate the fiscal integrity and financial capability of applicants and to examine proposed costs and the extent to which the budget detail worksheet and narrative accurately supports and explains project costs. This review will also assess whether costs are reasonable, necessary, and allocable under applicable federal cost principles and agency regulations. This financial review will be conducted by the COPS Office staff.
In addition, prior to making an award greater than the simplified acquisition threshold (currently set at $150,000), any information about applicants that is in the designated integrity and performance system accessible through SAM will be reviewed and considered. Applicants may review and comment on any information about them in SAM that a federal awarding agency previously entered in the designated integrity and performance system, and such applicant comments will also be reviewed and considered.
Past performance on previous awards may be an indicator in this review process. Financial and programmatic performance factors may be included in the past performance review.
Absent explicit statutory authorization or written delegation of authority to ttie contrary, all final award decisions will be made by the Director of the COPS Office, who may also give consideration to factors including, but not limited to, underserved populations, population served, geographic diversity, strategic priorities, past performance, and available funding when making awards.
Federal award administration information
The award document
The award document is the document indicating your official award funding amount, the number of officer positions awarded, the type of positions awarded, the award number, the award conditions, and the award start and end dates.
The award document is preprinted with your agency's law enforcement and government executives' names. If this information is incorrect or has changed, please update your "Agency Contacts" on line at www.coes.usdoj.gov through the "Account Access" link. If the law enforcement or government official has changed since the time of application, please have the current law enforcement executive or government executive for your agency create an account through the "Account Access" link, log in, and sign the award document once your agency contacts have been updated on line. Once you have reviewed your award document, please electronically sign it and make a copy of all pages of the document for your records, along with all award condition pages, within 90 days of the date shown on the award congratulatory letter.

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The award start date indicated on the award document means that your agency may be reimbursed for any allowable costs incurred on or after this date. The duration of your AHTF award is 24 months of funding for each award.
Your award number is in the following format: 2017-HPWX-OOOO for awards funded in FY 2017. The COPS Office tracks award information based upon this number. Therefore, it is important to have your agency's award number (or your agency's ORI number) readily available when corresponding with the COPS Office.
Your originating agency identifier (ORI) number begins with your state abbreviation followed by five numbers or letters (e.g., VAOOOOO). This number is assigned by the Federal Bureau of Investigation (FBI) for use in tracking information for the Uniform Crime Report (UCR). The COPS Office tracks programmatic award information based upon this ORI number. If your agency does not have an ORI number assigned by the FBI, the COPS Office assigns a nonofficial ORI code to use as an agency identifier (in such cases, the last two characters will be "ZZ"). If you have any questions regarding your award, please refer to your award number or your agency's ORI number when you contact the COPS Office.
The award conditions are listed on your agency's award document. By accepting this award, you are obtaining federal funds from the COPS Office. As part of that agreement, if awarded, your agency will acknowledge that it will comply with these conditions (and, if applicable, additional special conditions specific to your agency).
In limited circumstances, your award may be subject to special conditions that prevent your agency from drawing down or accessing award funds until the special conditions are satisfied as determined by the COPS Office. Any special conditions will be included with your award.
Administrative and national policy requirements
If selected for funding, in addition to implementing the funded project consistent with the approved project proposal and budget, the recipient must comply with award terms and conditions, and other legal requirements including, but not limited to, 0MB, DOJ, or other federal regulations that will be included in the award or. incorporated Into the award by reference or are otherwise applicable to the award.
Please see general terms and conditions on page 19.
Suspension or termination of funding
The COPS Office may suspend, in whole or in part, or terminate funding or impose other sanctions on a recipient for the following reasons:
• Failure to substantially comply with the requirements or objectives of the Public Safety Partnership and Community Policing Act of 1994, program guidelines, or other provisions of federal law
• Failure to make satisfactory progress toward the goals or strategies set forth in this application • Failure to adhere to award agreement requirements or special conditions • Proposing substantial plan changes to the extent that, if originally submitted, would have resulted in the
application not being selected for funding • Failure to submit required or requested reports • Filing a false statement or certification in this application or other report or document • Other good cause shown

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Prior to imposing sanctions, the COPS Office will provide reasonable notice to the recipient of its intent to impose sanctions and will attempt to resolve the problem informally. Appeal procedures will follow those in the U.S. Department of Justice regulations in 28 C.F.R. Part 18.
Awards terminated due to non-compliance with the federal statutes, regulations, or award terms and conditions, will be reported to the integrity and performance system accessible through SAM (currently FAPIIS).
False statements or claims made in connection with CDPS Office awards may result in fines, imprisonment, debarment from participating in federal awards or contracts, and/or any other remedy available by law.
Please be advised that recipients may not use COPS Office funding for the same item or service also funded by another U.S. Department of Justice award.
COPS Office Application Attachment to SF-424
What an application must include
Detailed explanations of required documents can be found on the following pages.
Required application documents and sections for the COPS Anti-Heroin Task Force program
The table on page 34 Is a chart that shows the required documentation that must be completed and submitted for your AHTF application to be considered complete. Failure to submit all required documentation at the time of the application may delay processing and/or result in the denial of your application. Unless otherwise noted, each section listed must be completed in its entirety. You can use this chart as an application checklist to ensure you have met all of the necessary requirements.

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Application documents and

Required? Yes, no, or possible

Completed?

sectiolis

··.

.

Standard Form 424 (to be

Yes

D

completed on Grants.gov}

COPS Office Application

Yes

D

Attachment to SF-424 (to be

completed via COPS Office Online

Application System}

Section 1. COPS Office Program

Yes

D

Request

Section 2. Agency Eligibility

Yes (section 2C only}

D

Information

Section 3. General Agency

Yes

D

Information

Section 4. Executive Information

Yes

D

Section 5. COPS Office Hiring

No

D

Request Form

Section 6. Law Enforcement and

Yes (section 6A only}

D

Community Policing Strategy

Section 7. Need for Federal

Yes (section A only}

D

Assistance

Section 8. Continuation of Project Yes (section B only}

D

after Federal Funding Ends

Section 9. School Safety

No

D

Assessment

Section 10. Executive Summary

Yes

D

Section 11. Project Description

Yes

D

(Narrative}

Section 12. Official Partner(s}

Possible

D

Contact Information

Section 13. Application

Yes

D

Attachments

Project Narrative (Required}

Budget Narrative (Required}

Section 14. Budget Detail

Yes

D

Worksheets

Section 15. Assurances and

Yes

D

Certifications

Section 16. Disclosure of Lobbying Possible

D

Activities

Section 17. Reviews and

Yes

D

Certifications

Section 18. Application and Data

Possible

D

Verification

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General information
The applicant's SF-424 must be submitted online via www.grants_,gov. Once the SF-424 is submitted via Grants.gov, the COPS Office will send an invitation e-mail to the applicant with instructions on completing the second part of the AHTF application through the COPS Office online via the COPS Office website ()IVj!VW.~Q!J~usdqj.gov).
Instructions: Application for Federal Assistance SF-424
Public reporting burden for this collection of information is estimated to average 60 minutes per response including time for reviewing instructions, searching existing data sources, gathering and maintaining the data needed, and completing and reviewing the collection of information. Send comments regarding the burden
estimate or any other aspect di this collection of information, including suggestions for reducing this burden, to
the Office of Management and Budget, Paperwork Reduction Project (0348-0043), Washington, DC 20503.
PLEASE DO NOT RETURN YOUR COMPLETED FORM TO THE OFFICE OF MANAGEMENT AND BUDGET. SEND IT TO THE ADDRESS PROVIDED BY THE SPONSORING AGENCY.
· The instructions for the Application for Federal Assistance SF-424 on page 35 is a standard form (including the continuation sheet) required for use as a cover sheet for submission of pre-applications and applications and related information under discretionary programs. Some of the items are required and some are optional at the discretion of the applicant or the federal agency.
Required items are Identified with an asterisk on the form and are specified in the instructions below. In addition to the instructions provided below, applicants must consult agency instructions to determine specific requirements.
1. Type of Submission (required). Select one type of submission in accordance with agency instructions.
• Pre-application • Application • Changed/corrected application-if requested by the agency, check if this submission is to change or
correct a previously submitted application, Unless requested by the agency, applicants may not use this to submit changes after the closing date.
2. Type of Application (required). Select one type of application in accordance with agency instructions.
• New-An application submitted to an agency for the first time. • Continuation-An extension for an additional funding/budget period for a project with a projected
completion date. This can include renewals. • Revision-Any change in the Federal Government's financial obligation or contingent liability from
an existing obligation. If a revision, enter the appropriate ietter(s). More than one may be selected. If "other" is selected, please specify in text box provided. A. increase award B. Decrease award C. increase duration D. Decrease duration E. Other (specify)

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3. Date Received. Leave this field blank. This date will be assigned by the federal agency. 4. Applicant Identifier. Enter the entity identifier assigned by the federal agency, if any, or the applicant's
control number if applicable. Sa. Federal Entity Identifier. Enter the number assigned to your organization by the federal agency, if any. Sb. Federal Award Identifier. For new applications, leave blank. For a continuation or revision to an existing
award, enter the previously assigned federal award identifier number. If a changed/corrected application, enter the federal identifier in accordance with agency instructions. 6. Date Received by State. Leave this field blank. This date will be assigned by the state, if applicable. 7. State Application Identifier. Leave this field blank. This identifier will be assigned by the state, if applicable. 8. Applicant Information. Enter the following In accordance with agency instructions: a. Legal name (required). Enter the legal name of the applicant who will undertake the assistance
activity. This is what the organization has registered with the System for Award Management. Information on registering with SAM may be obtained by visiting the Grants.gov website. b. Employer/Taxpayer number (EIN/TIN) (required). Enter the Employer or Taxpayer Identification Number (EIN or TIN) as assigned by the Internal Revenue Service. If your organization is not in the United States, enter 44-4444444. c. Organizational DUNS (required). Enter the organization's DUNS or DUNS+4 number received from Dun and Bradstreet. Information on obtaining a DUNS number may be obtained by visiting the Grants.gov website. d. Address. Enter the complete address as follows: Street address (line 1 required), City (required), County, State (required, if country is United States), Province, Country (required), ZIP/Postal Code (required, if country is United States). e. Organizational Unit. Enter the name of the primary organizational unit (and department or division, if applicable) that will undertake the assistance activity, if applicable. f. Name and contact information of person to be contacted on matters involving this application (required) and organizational affiliation (if affiliated with an organization): Enter the name (first and last name, then the application organization), telephone number (required), fax number, and e-mail address (required) of the person to contact on matters related to this application. 9. Type of Applicant (required). Select up to three applicant type(s) in accordance with agency instructions.
A. State government B. County government C. City or township government D. Special District government E. Regional Organization F. U.S. Territory or possession G. Independent school district H. Public/state controlled institution of higher education I. Indian/Native American Tribal Government (federally recognized) J. Indian/Native American Tribal Government (other than federally recognized) I<. Indian/Native American tribally designated organization L. Public/Indian housing M. Nonprofit N. Private institution of higher education 0. Individual

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P. For-profit organization (other than small business) Q. Small business R. Hispanic-serving institution S. Historically Black colleges and universities (HBCU) T. Tribally controlled colleges and universities (TCCU) U. Alaska Native and Native Hawaiian serving institutions V. Nondomestic (non-U.S.) entity W. Other (specify)

10. Name of Federal Agency (required). Enter the name of the federal agency from which assistance is being

requested with this application.

11. Catalog of Federal Domestic Assistance Number/Title. Enter the Catalog of Federal Domestic Assistance

number and title of the program under which assistance is requested, as found in the program

announcement, if applicable.

12. Funding Opportunity Number/Title (required). Enter the Funding Opportunity Number and title of the

opportunity under which assistance is requested, as found in the program announcement.

13. Competition Identification Number/Title. Enter the Competition Identification Number and title of the

competition under which assistance is requested, if applicable.

14. Areas Affected by Project. List the areas or entities using the categories (e.g., cities, counties, states)

specified in agency instructions. Use the continuation sheet to enter additional areas, if needed.

15. Descriptive Title of Applicant's Project (required). Enter a brief descriptive title of the project. If

appropriate, attach a map showing project location (e.g., construction or real property projects). For pre-

applications, attach a summary description of the project.

16. Congressional Districts Of (required).

16a.

Enter the applicant's congressional district, and

16b.

Enter all distrlct(s) affected by the program or project. Enter in the format:

• Two-character state abbreviation • Three-character district number
e.g., CA-005 for California 5th district, CA-012 for California 12th district, NC-103 for North Carolina 103rd district • If all congressional districts in a state are affected, enter "all" for the district number, e.g., MD-all for all congressional districts in Maryland. • If nationwide, i.e., all districts within all states are affected, enter U.S.-all. • If the program/project is outside the United States, enter 00-000.

17. Proposed Project Start and End Dates (required), Enter the proposed start date and end date of the project.
18. Estimated Funding (required). Enter the amount requested or to be contributed during the first funding/budget period by each contributor. Value of in-kind contributions should be included on appropriate lines, as applicable. If the action will result in a dollar change to an existing award, indicate only the amount of the change. For decreases, enclose the amounts in parentheses.
19. Is Application Subject to Review by State under Executive Order 12372 Process? Applicants should contact the state single point of contact (SPOC) for Federal Executive Order 12372 to determinewhether the application is subject to the state intergovernmental review process. Select the appropriate box. If "a" is selected, enter the date the application was submitted to the state.

Case 3:17-cv-04701-WHO Document 11 Filed 10/13/17 Page 261 of 310
2017 COPS Office Anti-Heroin Task Force (AHTF} Program Application Guide
20. Is the Applicant Delinquent on Any Federal Debt? (required) Select the appropriate box. This question applies to the applicant organization, not to the person who signs as the authorized representative. Categories of debt include delinquent audit disallowances, loans, and taxes. If yes, include an explanation on the continuation sheet.
21. Authorized Representative (required). To be signed and dated by the authorized representative of the applicant organization. Enter the name (first and last name required), title (required), telephone number (required), fax number, and e-mail address (required) of the person authorized to sign for the applicant. A copy of the governing body's authorization for you to sign this application as the official representative must be on file in the applicant's office. (Certain federal agencies may require that this authorization be submitted as part of the application.)
Section 1. COPS Office program request
Please ensure that the correct program box is checked. If you plan to apply for other COPS Office programs, a separate application must be completed for each COPS Office program for which you are applying. Please ensure that you read, understand, and agree to comply with the applicable terms and conditions as outlined in this application guide before finalizing your selections.
Section 2. Agency eligibility information
The COPS Anti-Heroin Task Force (AHTF) program is open to state law enforcement agencies with multijurisdictional reach and interdisciplinary team (e.g., task force) structures. These state law enforcement agencies must have primary authority over state seizures of heroin and other opioids. This program does not have a local match requirement.
Before proceeding with this application, we ask that you please log onto the COPS Office Agency Portal to update the agency providing law enforcement services as your Law Enforcement Executive/Agency Executive Information. This information will be pre-populated from the COPS Office Agency Portal in section 4 of this application, so please ensure its accuracy.
Section 3. General agency information
Please provide accurate agency information, as this information is used to identify your agency and may be used along with other data collected to determine funding eligibility.
A. Applicant ORI number
The ORI number is assigned by the FBI and is your agency's unique identifier. The COPS Office uses the first seven characters of this number. The first two letters are your state abbreviation, the next three numbers are your county's code, and the next two numbers identify your jurisdiction within your county. If you do not currently have an ORI number, the COPS Office will assign one to your agency for the purpose of tracking your award. ORI numbers assigned to agencies by the COPS Office may end in "ZZ."

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2017 COPS Office Anti-Heroin Task Force {AHTF) Program Application Gulde
B. Applicant Data Universal Numeric System (DUNS) number
The Federal Government requires that all applicants for federal awards, with the exception of individuals other than sole proprietors, have a Data Universal Numbering System (DUNS) number prior to application submission. A DUNS number is a unique nine- orthirteen-diglt sequence recognized as the standard identifier for entities receiving federal funds, and provides consistent name and address data for electronic award application systems. A DUNS number may be obtained by telephone at 866-705-7511 or via the Internet at fed~ov.dnb.com/webform. For more information about how to obtain a DUNS number, please refer to the "How to Apply" section of this application guide.
C. System for Award Management (SAM)
The System for Award Management (SAM) database is the repository for standard information about federal financial assistance applicants, recipients, and subrecipients. The Federal Government requires that all applicants of federal award funds and cooperative agreements-with the exception of individuals other than sole proprietors-be registered in the database prior to application submission. Please contact the SAM Service Desk at 866-606-8220 or view or update your registration information at www.sam.gov. If your SAM registration is set to expire prior to September 30, 2017, please renew your SAM registration prior to completing this application. All applicants are required to maintain current registrations in the SAM database. Please note that applicants must update or renew their SAM at least once per year to maintain an active status. For more information about how to register with SAM, please refer to the "How to Apply" section of this application guide.
D. Geographic Names Information System (GNIS) ID
The Geographic Names Information System (GNIS) identification number is a unique ID assigned to all geographic entities by the U.S. Geological Survey. To look up your GNIS Feature ID, please go to .https:/Lfil!onames.us~gg_y/domes!lf/lndex,html. For more information about how to obtain a GNIS number, please refer to the "How to Apply" section of this application guide.
E. Cognizant Federal Agency
A Cognizant Federal Agency, generally, is the federal agency from which your jurisdiction receives the most federal funding. Your Cognizant Federal Agency also may have been previously designated by the Office of Management and Budget. Applicants that have never received federal funding should select the "U.S. Department of Justice" as the Cognizant Federal Agency.
F. Fiscal year
Enter the month, day, and year ofthe legal applicant's fiscal year.
G. Law enforcement agen.cy sworn force information - Not applicable under the AHTF program H. Civilian staffing- Not applicable under the AHTF program I. U.S. Department of Justice and other federal funding
Applicants are required to disclose whether they have pending applications for federally funded assistance or active federal awards that support the same or similar activities or services for which award funding is being requested under this application. Be advised that COPS Office award funding may not be used for the same item or service funded through another funding source. However, leveraging multiple funding sources in a complementary manner to

Case 3:17-cv-04701-WHO Document 11 Filed 10/13/17 Page 263 of 310
2017 COPS Office Anti-Heroin Task Force (AHTF} Program Appl/cot/on Guide
implement comprehensive programs or projects is encouraged and is not seen as inappropriate. To aid the COPS Office In the prevention of awarding potentially duplicative funding, please indicate whether your agency has a pending application and/or an active award with any other federal funding source (e.g., direct federal funding or indirect federal funding through state subawarded federal funds) that supports the same or similar activities or services as being proposed in this COPS Office application. Check all that apply using the check boxes provided in the application.
Section 4. Executive information
Please ensure that information listed is current. If these officials are "Interim" or "Acting" at the time of application, check the appropriate box. Please note that this information will be used for any future correspondence regarding this award application, and ultimately, if an award is funded, this information will be used for any award notifications.
Applicant executive/agency executive information
A. For law enforcement agencies
This is the highest ranking law enforcement official within your jurisdiction (e.g., chief of police, sheriff, or equivalent). If the award is funded, the person in this position will ultimately be responsible for the pr.ogrammatic implementation of the award. B. For government agencies
This is the highest ranking government official within your jurisdiction (e.g., mayor, municipal administrator, tribal chairman, or equivalent). If the award is funded, the person in this position will ultimately be responsible for the financial management of the award. Please note that information for non executive positions (e.g., clerks. or trustees) is not acceptable.
This section will be prepopulated from the information listed in your COPS Office Agency Portal account. If this information is no longer correct, please log in to your COPS Office Agency Portal account and make the necessary corrections before proceeding with this application. For assistance, please call the COPS Office Response Center at 800-421-6770.
Note: Listing individuals without ultimate programmatic and financial authority for the award could delay the review of your application, or remove your application from consideration.
Application contact information
Enter the name and contact information for the person completing this application.
Section 5. COPS Office officer request - Not applicable under the AHTF program
Section 6. Law enforcement and community policing strategy
Please complete questions CPl and CP2.

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2017 COPS Office Anti-Heroin Task Force {AHTF} Program Appl/cation Guide
Section 7. Need for federal assistance
Section 7A. Explanation of need for federal assistance
All applicants are required to explain their Inability to address the need for this award without federal assistance. Please note that the character limit for this response is 3,000 characters.
Section 78. Service population - Not applicable under the AHTF program
Section 7C. Fiscal health - Not applicable under the AHTF program
Section 70. Property crime/violent crime- Not applicable under the AHTF program
Section 8. Continuation of project after federal funding ends
Section 8A. For COPS Office awards with a retention plan requirement- Not applicable under the AHTF program
Section 88. For COPS Office awards with no retention plan requirement
The questions in this section will be used for programs without a retention requirement to report any plans to continue the program or activity after the conclusion of federal funding. Please identify the source(s) of funding that your agency plans to utilize to continue the program, project, or activity following the conclusion of federal support. Check all that apply.
Section 9. School safety assessment- Not applicable under the AHTF program
Section 10. Executive summary
Applicants are required to complete section 10 of the COPS Office Application Attachment to the SF-424 Form. Briefly summarize (in 3,000 characters or less) how your agency intends to use this award, if funded. This information may be used to keep Congress or other executive branch agencies informed about AHTF projects.
Section 11. Project description (narrative)
FY 2017 AHTF applicants must submit their entire project description as an attachment in section 13 of this application. The project narrative portion of the application is limited to 15 pages (maximum), double-spaced, 12 ·point font. Sub_mit this narrative as an attachment under section 13 of the application. The required information form that you will need to complete and attach in section 13 is available at
h.tw.s:l/_c<>.J:JS·!l~<l_Q_j,gQl/[pill/_?llE.ll,y.,_;i[<l[:1QC~/-"htill_OJ] AH.IF Budget Narrative 508,l!d~.

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2017 COPS Office Anti-Heroin Task Force /AHTF} Program Appl/cation Guide
The project narrative will address problem identification, current investigative activities, task force involvement, collaboration efforts, proposed project goals and objectives, project implementation plan, program outcomes, and seizure data for the last three years.
The narrative will be a significant factor in the application review and approval process. Failure to provide this information will eliminate your application from consideration.
Your agency is not required to submit supporting documentation with this application. However, your agency must maintain copies of the records used in this award submission for future review in the event of a site visit, audit, or other request. Data used must be data that is recorded in official records.
Please do not submit any confidential data or reports with your application.
Section 12. Official partner(s) contact information
If applicable, please submit a list of partnering agencies including contact person, organization name, address, phone number, and e-mail address.
Applications that represent multijurisdictional taskforces are strongly encouraged to apply.
Section 13. Application attachments
Project Narrative and Budget Narrative
This section should be used to submit the required project narrative described In section 11 (maximum 15 pages, double-spaced, 12 point font) and the budget narrative (see section 14). The total size per attachment must not exceed 20 MB, and .zip files are not acceptable attachments and must not be submitted. All AHTF applicants must attach both a project narrative and a budget narrative. Your project narrative attachment must address each element on the following form: _bttps:lif!'J2~,!1.!i.!l<!hgg_v/pdf/2017Aw.~r.<!Pocs/ahtf/201Li:\!:iTF Budget_ Narrative 50~.pdf. Your budget narrative attachment must address each element on the following form: hty,s://cops.usdgj,gov/pdf/2017AwardDocs/ahtf/20.1} AHTF Bucjgi,t Narrative 508,p~J The budget narrative must (1) describe each item requested or group of similar items requested; and (2) link each item or group of items to the proposed project. All items will be reviewed on a case-by-case basis and in context of the allowable and unallowable costs lists. See section 14, budget detail worksheets and budget narrative attachment, for additional guidance.
Please use appropriately descriptive file names (e.g., Program Narrative, Budget Detail Worksheet and Budget Narrative, Timelines, Memoranda of Understanding, Resumes, etc.) for all attachments.
Please do not submit executable file types as application attachments. These disallowed file types include, but are not limited to, the following extensions: .com, .bat, .exe, .vbs, .cfg, .dat, .db, .dbf, .dll, .ini, .log, .ora, .sys, and .zip. The system may reject applications with files that use these extensions.

Case 3:17-cv-04701-WHO Document 11 Filed 10/13/17 Page 266 of 310
2017 COPS Office Anti-Heroin Task Force (AHTF) Program Application Gulde
Section 14. Budget detail worksheets and budget narrative attachment
Instructions for completing the budget detail worksheets and budget narrative attachment
Included within this section are instructions and sample information for completing the budget detail worksheets and budget narrative. Please complete each section of the budget detail worksheets as applicable. If you are requesting new entry-level full-time officer positions not currently funded in your agency's local budget, please indicate the number of positions. If you are not requesting anything under a particular budget category, please check the appropriate box in that category indicating that no positions or items are requested. Budget re~uests must not exceed the two year award period. Please insert zeros for all categories in year 3.
The budget detail worksheets request that you provide a specific description for each item and explain how it supports the project goals and objectives outlined in your application. Applicants will be providing this information as part of the budget narrative attachment and not as part of the budget detail worksheets. Please note: ALL AHTF APPLICANTS MUST ATTACH THE BUDGET NARRATIVE AS PART OF SECTION 13. (Attachment available at
l:!!t11s.;L/cops.l!~dol,BQY./p.JifllQJ,'l~Y.!lardDqcs/ahtf/2011 AHTF Bu<!g__ei_Narratiye SOJ!,J>J!f.)
In the budget narrative attachment, you must provide a brief description of the item(s) proposed for purchase, their purpose, and how the item(s) relate to the overall project. Sections A, B, C, D, E, F, and G and the budget summary of the COPS Office budget detail worksheets are applicable to the COPS Anti-Heroin Task Force program. Like items may be grouped together for ease of reporting. Each Item in the budget narrative must fall under one of seven categories:
1. Sworn officer positions and fringe benefits 2. Civilian/Nonsworn personnel and fringe benefits 3. Equipment/Technology 4. Supplies 5. Travel/ Training 6. Contracts/Consultants 7. Other costs
Finally, every item included on the budget detail worksheets must be included in the budget narrative attachment. For your convenience, we have included a sample budget narrative and budget detail worksheets. For more information, please see the "Allowable and Unallowable Costs" section.
All final calculations should be rounded to the nearest whole dollar. Also, please note th.at the total project amount requested in your COPS Anti-Heroin Task Force Program application may not exceed the program cap of
$1;soo,ooo. Once the budget for your application has been completed, a budget summary page will reflect the
total amou.nts requested in each category and the total project costs.

Case 3:17-cv-04701-WHO Document 11 Filed 10/13/17 Page 267 of 310
2017 COPS Office Anti-Heroin Task Force {AHTF) Program Application Gulde

S. BUDGET SUMMARY

lnstnwUons: Pkwoo uwlew lhe C111euory tolals w,d lllll tolaf p1u)~>ct ooo!s below If 11,11 c11tegcny1ot11t:l m1oJ project arnm1nls shown 1.1recor,ec1, plea$e w111lnuewllll 1h11 submission o! your .ipplle11Hon. Sllould yuu nuoo !onmke nivlslons lo 111:».1~get calatJory, 1~e.i~ nilum tu ltie Um.l{Jot Dela~ Wo11:.&11eul.
Section

13udgel Catoooty A, Sworn Offloor Pos!\lone

Category Total ,_ $\31002.50

a. Non.sworn Personnel C. equlpn1e11t & Tochnology o. Suppllos E, navel & Training

-·--- $96005.00 $1000.00 $1000.00 $4200.00

F, ContrMts & ConsultMts

$20400.00

a. Othnr Costs

$2000.00

H. Indirect costs

$0.00

Total Project Amount

$200047.ij()

·-·-·

Total Federal Share Amount: {Tola I ProJeotAmoont X Fedoml Shmo Pmwntage/\l!CIW'~b!e)

$200047,50

100J)D0000%

Total Loeul Share Amo411t(lfijpptlcable):
(Tot~.1.Projec\ Amount.- To~1~.!.:~ern_l .?_(mre _A~!)

"'·"' - --..-·-·-····

O.OODl/00%
- " "

Contact Information for Budget Questions Please provide contact Information of the financial official thal the COPS Offk,e may conlaci with questions rf.lated to your budget submission, First Name: !Jolin Last N?me:
looe
Title: !Budget Officer Telephone Number: 17894561239
Fax:

Email Address: ldoe@appticant.org

Sample budget detail worksheets
The following budget detail worksheets are designed to allow all COPS Office award applicants to use the same budget forms to request funding. Please refer to the "Allowable/Unallowable Costs" section of this application guide, because these costs vary widely among programs.
To assist you, sample budget detail worksheets are included in this application guide.
If you need assistance in completing the budget detail worksheets, please call the COPS Office Response Center at 800-421-6770.
Sworn officer positions
Instructions
This worksheet will assist your agency in reporting your agency's current salary and benefits and identifying the total salary and benefits request per officer position for the length of the award term. Please list the current base salary and fringe benefits rounded to the nearest whole dollar for one full-time sworn officer position within your agency. Please list only your agency's contribution of each fringe benefit item; do not include employee contributions. Please insert zeros for all categories in year 3.

Case 3:17-cv-04701-WHO Document 11 Filed 10/13/17 Page 268 of 310
2017 COPS Office Anti-Heroin Task Force (AHTF/ Program Application Gulde
Please note:
If sick leave and/or vacation leave costs are already reflected in the base salary figure provided in section 14A, subsection A. Base salary information, please DO NOT also list these costs individually under fringe benefits (section 14A, subsection B).
----------·····-··--SECTION 14A: BUDGET DETAIL WORKSHEETS
Jnt.lmcuom.: 1his w6rk!J!ww1. Will 1H~!M yollf ilgu;cy in mpoflll)fJ your SQ&n<:y·s current i!,!llnry aM !Jenotllfl and ldMtif,<inj) the toted !lllhuy Afld berttlllt;S requaes! pe1 omcer posmoo 101 the let19Ch ol the g1mll tm1n. Plcmm ust 1h11 011n(ml tlaoo ~am1y :md hinge blxmnm roonclod 10 tM rmmilil!wno1n,;101w 1or one lu!Hanecswooi Ol!lr.er Plmll1on wmm1 yi:ll!r ng[)n(.y. oo no11och1rln ein111tJY(lil con11muuoou. (Pfease roler lo h:tp:tMWI\' COJ1!1.u~(!()j.()O!IIOor:iu11 ~sp'/itcm;,t(i. [-OI 1nrorma11011on me ltrb(Jlll ol ll1* 9rnn1 llNl!I forttte progrnJn 1rnder'Whtctl yoo 11ro npplylng) Sp,i:,ciid •mlr. IL1J111<~119 5W(!tn oHkx,r fnnrJ1: t,,;r1chll!: H1t no~nrre:i. llm\ <.lo llol inclu,le 1/tngr. ll<l'rlllnl~ ,1~ pm! or 11lt: lu131: ,snt11ty w,!s ;,rnJ lypii:ally calculate !hL"* ~epnrok,ly, th<! nllow,mlt: exµf;n,rnwrcs m;1y br. ~)l;l1Jtllld wltl1.'I Pmt 1, &:clio11'ELAny fringe iwm,ms tlnit eflt alrom.fy lm:ludeci u p.11rt Qf Uiu ,1gency>s b~i11,1huy (Part 1, Soullon A of Uni sworn ome11r iUudyet Wo1ll~ha11t) 5helllci not ahlo be · lneludod In IM soparml! frin{Jt litUng (P~rt 1, So,ctl(>ll BJ, f>1e!i$(1 r¢16'rto hll1:r.1/wv,w.t.1.>[)6.UW(1j.{j(IVl['.l}/a1ilt.asp?lt€0>"401Min1orma11on aoout allowable arid uoo!li'.vlvabl!! f!WJI! bentlltS rOI $Worn oflleer pocl~on!l rnqrn:m!o(htw.ler !h1,1 pf09!Um 11' 1vhk:l1 your agericy l~ applytng.
A. SWORN OFFICER l'OSl110NS Ful1-nn1a Swilrn omcer SMa salary lnf<>nn.1uon P~It 11 ln~lf(l(:jlqns· Pli~aso oompllllo lhtHJ<1ealiPn1l hnlow ll/laed OI\ you1 /l.9!IIIC)''$ Mlnry anti 1!11111if,w. packtlf.lC for ll!.l.!! Joo."ll!y-runl!M o!!rf:nr p<l$lllon. All llpp{l~.tll.'a pu thff p~ram-:,p~dtlc npp!<Cll/lofl gufoo, you may 111;,(, be 1~quired fo pro/<Y:/ Ynr 2 and Ye.ar3 sa!aifeg.

... ... . , ,., , F<t<,rmnm" ~
~for"'o"o"oI~'""""'""'"· ~

iYos v'.li<>••tl•~1,.,• -~ola,yi,fdud•
Y"'"'"""WAll l>l,>,,s•~•l<>•t·,. .
"'""

vi:,.'t;";J~:;';
vo<.>r,i,,,oo.W! N•os~•,>!<><<V"' ~r t1>0.

-v] :;~;r'\'!:.,'; [YW ------~.iJ ~~~'./~::';

"$1'"<"k,",..~.o.,J~•<.1..n.s.j "'""·

"'''' '""'"' """"'
i•lo.>,u ,~le'<' Ve~,
~,u~.

8. Fringe Benefit costs should be calculated for each \fear of the grant term.

fRINGE BENEFITS:

Year 1 fringe Benefits

Socl.:11 security expenses

cannot

exceed

6

_2

o; 0

Dcxempt Ell6.2% Llf--lxed Rate

Medicare expenses rnnnot exceed 1.45%

DExempt Rli.45% Dnxed REite

Health Insurance (Family Covernge)

COST % OF BASE S/\LARY
I ~ 11mao
114500 1~
[CJ~

Life Insurance

[CJ~

Vacation

10 Number of Hours Annually:

[CJ~

Sick Leave

10 Number of Hours Annually:

[C][oC]

Retirement

[CJ~

Worker's Compensation DExempt

[CJ~

Unemployment Insurance Olher
other
other

DExempt

[CJ~

;:===========-~====~@=]~ --~-o---0,[6=]~

[CJ~

Year 2 Fringe Benefits

COST

%OF

OIi.SE SALARY
I ~ 1n30_00

I ~ 1211so

[CJ~ [CJ~ [CJ~ [6=]@:ocC]

[C][oC]

[CJ~ [CJ~

[C][oC]

[CJ~ [CJ~

Reneflt's Sub-Tota! Per Year (.1 Position) C. Total Salary+ 13eneflts Per Year (1 Position) D. Total Stilary and Benefits for Years 1 and 1 {l Position.}:

1765000 . 110765000 [2691250

11147°50
116147050
X ~ # of Positions 1134562.50

Case 3:17-cv-04701-WHO Document 11 Filed 10/13/17 Page 269 of 310
2017 COPS Office Anti-Heroin Task Force {AHTF} Program Application Gulde
Civilian positions
Salaries of personnel are costs based on the percentage of time spent (FTE) working directly on the project. The total salary percentage should be comparable and consistent with organizational policy. The total amount paid is comparable to Industry standards and the type of work being performed.
8. BASE SALARY ANO FRINGE BENEFITS FOR CIVILIAN/NON-SWORN PERSONNEL
ln;tru11Uor1s: PICl!M'. r.omf)INr. Uw. qul!5UOJU below f('j( OM non.s11>ruro fl(l~l11nf1 ~alary .iiM benellt!. Jlllcirn(!I!- AS appllc:,1ble per me r,rogmm.~peeln(l npjllk"4lUOfl (.!Wde. Y® J\l/lY alnt') l)e re1J1tl1ed to project ye11.r 2 and }'liar 3 l>illml!:/5, P!ear.o reterto '1U!):ltwww.Ulf)S U!ldOj.gO\/llkl11ulter,p'lltem""'lll l01 lnfllflllfll!o/1 aholrt llllol'l!lbleMd uMl!Owabl6 frilli]O l)ooefi1$ /0rcil/Jlb1Nr.oo.swom p~rnonnel requesl«l l.Hlder lhe pro,gmm to:i wt.1,111 your agniicy 1~ l!fl{lly1fl{I. ff. GIVLLIAN POSITIONS

A, m,sii Snlnry lnforma1Jrm
l'MlliOn IIUe
(}<,~~•lpli<.lfl

Yrmrl~Dil)JV
r,.,.... I~~~'"
·-~r,by 1..,.1 W1•0,,4o,yr,,,
"S'M""<"nJ''l"<".."ltiJ"O"""· '
e~,~~:J
X~',,cllOot<o,,o,o""l
pooo() I
l!~-·-·--·-VJ ix:y11;:~.rv':' v.-~,i:oa "'""1 ... 1,~. l!torn•d•ct'fuf>
· .;;r.,;,.,hoh..,..
'u1o,y lll<lu~,
W;ki,n,,o ,oru1
P""~,~•onw,
... uo.

Yr.m•".,o,·nttlf,\"l",'.".',",~,
l>0!<t.,!>0y!or 1"'<<'"1llarv,,.,,. wo<nµ<>,<ltloo.
i"'""" ~]
~~"""'°"'"""~<"""1 I'™
··._.;rw.,nl!•ll><• ··""'•1!1\<J"''"
liRltl.<~"*'<><10,
"''""'•""1<l -~-

Fringe benefits

Aside from Social Security, Medicare, health insurance,.and life insurance, the following are allowable fringe benefits:
• Dental insurance • Vision insurance • Prescription drugs • Sick days (if not included in base salary-calculate using 8-hour workdays) • Vacation days (if not included in base salary-calculate using 8-hour workdays) • Holiday pay (if not included in base salary) • Retirement pension • Worker1s compensation • Unemployment • Disability insurance • Accidental death and disability • 401(k) plan • Liability insurance • Shift differential pay (if not included in base salary) • Accident insurance • Bonding insurance • Pol Ice trust

Case 3:17-cv-04701-WHO Document 11 Filed 10/13/17 Page 270 of 310
2017 COPS Office Anti-Heroin Task Force (AHTF) Program Application Guide

• State funded retirement system • Professional liability insurance • Federal Unemployment Tax Act (FUTA) tax · • Survivor benefit

Other benefits, such as training, equipment (e.g., uniforms, weapons, or vehicles), severance pay, and hazard pay, are not allowed.

'! B. Fringe Benefit costs should be calculated for ec1ch year of the grant term.

HUNGE BENEl-~ I'S:

Social security expenses cannot exceed 6.2%

DExernpt bZJ0.2%

DFlxed Rall:!

Medicare expenses rnnnol excet!d 1.45%

n1:::xim1pt ~L45% DRxed Rate

Health Insurance

Life In,~urance

Vticatlon

Number of Hours Annually:

Vear 1 fringe Benefits

COSI

% Of

BAS£ 611.l.l\RY

P'''°'' I~

poo.oo I ~

@=]~
@=]~
@=JI§::]

Sick Lenve R11tlre111en1

Number of Hours Armually:

Worfair's Compensation DExempt

@=]~
@=]~ @=]~

IJnemp[oyment lnsurnnnci

DExempt

@=J~

Other

: [s:::"e=·1e.::"::.o::':.:' =========·=-~]@=]~

Other

rselecl Orie. . . - - - -... _··---.--~]@=]~

other

r~~~~{1~:e.

:~~---· ~l@=J~

Veal''). Frinr,c Denefits
COS! % Of BAS!', SALARY
lrnsoool~
i"''' II~
E::J§::]
E::J~ E::J~ E::J§::] @=]~ @=]§::]
E::J§::]
E::J§::] E::J§::] E::Jlo oo__]

Benefits Sub-lotal Per Year (1 Position) C. Total Sall'lry + Benefits Per Year (1 Position) D, Total Salary cmll Benefits for Years 1 and 'J. ( l Position):

11,530.00 12.f,530,00 146442.50

\_1912.50

126912.50

# of Posltions

196005.00

j

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2017 COPS Office Anti-Heroin Task Force (AHTF) Program Appl/cation Guide
Equipment/Technology
Necessary equipment must be specifically purchased to implement or enhance the proposed project. Equipment is tangible, nonexpendable personal property, including exemp/ property, having a useful life of more than one year and an acquisition cost of $5,000 or more per unit.
C. EQUIPMENT/TECHNOLOGY
IJNo Squlpm~nllTe..:hMlogy Roquo,ted
ln1<liu,:lkms: Lisi noo ClpentJnblc i!~Jr,s ltral me k>be pu1d1,l!led. Pro~lda 11 "P""Uin rlomipUan !(Ir eod, Item ln lhe daJ1mlplf<>rihox11s 1Nilow 11nd a~p!nln how\ho 1~m suppa1ts Iha projo<1l 9011\s ,rnd objudlv11, 11$outll1111d In )'OLJr ll?fllk11llon. Non e~fterl(la\~e ,.:qwpru,:ml Is tangible pn!fWrly(t:.\)., JnfommUon ted1n<1l(){Jy ~y:,U':ln,) hr1vmg ~ u~dul hleofmaie lilllJl m1<: Y"lll aml ;m ,;1:;qulsl~m, r.csl nl $(;,OO!l or rno,e p,!lf unit. icit11'lmlfllile 11nm~1111n11ld b<l lrl!'JudCl<l e1merln IM "SIJPPL.lES!' or~olHeR~ ontll(l(lflllS.. Al)flliMnln ~llffild nn!llyte lhecMl bt111efdul)f pun;h.1~1no wirn.ui, 1r.a~1no nq,11pm1;~1. esper.1.ill~ Im high..pn~r. i1011'1$ 11.M U\(lMI $Ubje~t kl mpld Ulclmk':.11 ndW:mCt:U. 1<11ritm! or kmstldt1<111tf)rMnl eot.1!1 &IIOUld ll6 llfil1ld to 111!1. "CONTRAQTS /OOUSlJLiANTS" r~11!'-(1{11'/, Pl1tJ1,~ll tJeJ1dvlsu;J lh!'II, to Urn grnn!esl ,:,xtenl p(uclical, 11U equi1rn1ITT1t 111\1.1 p10,:JuU'i purduuwdwllh lheoo food~ 1111,~t ~(l /\!111Jdam-11UJd&. Fur ugonolcs purcllatltlg \l,;ims rlllatod \\I onhancod CK1fnmm1tc&Uons 11Yulem'II, \he COPS omoe oxpects and en~ouragv:1 that, wl1trovor fe1ulblo, suol1 vo!OI; or ®I.ii c11mmunfl:atlons eqlllpmenl should be loecr11CH'nlod lntQ an Intra• or lntcrj1.11h1t!lcUonal slnltegy for CQmmunlcaUons lrileropombillty arn11n11 federal, sl!lle, onci local Jaw e11rorc1rmen\ ayenQJe~.
Seo l1Up:ll.w,w ror,~ !.!~J-OOVJOofault.n~p?Jt(ml"'JO /or a b$1 ol ~fk)wablllf1JOOll01•1,11ml 0001$ fl)t U11~ p1tgrom. l'INl~e llmll :f)!.lr do,mr"il}tiOM lo 10(1(J cil<lmcinN..
ltemNauw
DOlOl<l
Mrll!em
Supplies
Supply costs consist of those incurred for purchased goods and fabricated parts directly related to a award proposal. Supplies differ from equipment in that they are consumable, expendable, and of a relatively low unit cost, defined as less than $5,000 per unit. Such costs may include paper, printer ink, pens, pencils, laptops, etc.
D. SUPPLIES
(.J N-o St1ppll@s Re<1M6"lad lnstru~tlo11s: 1,1slJ!em5by tyf)lil tomoe si1p\11l!l'$;PQStawi: ~o111~n11 m~tl!lrf1.1lt. wpy111g poµcr; IJoo~: har\lU1ato:l tape rcooidm:r.: co111Put!119d\fllewscosting Jes~ than $MOO; ,:ilG). /trovkfe II !!peelfil.1 de-rmlpllon for euoh nem \n tht duscrlptlon bOXl!s below und n~pluln how It sup11or1, Uie pwJoct goals ~nd obJ~lltll'1ls oullfMd In your applleatl<;m. Gem.Holly, supr,lle~ lm:!.udenny mu!mlal$ l.halt1rc uxpend~llle at C1J11oorrw'1 dW!fl!l !he 0011111e or the pitjuci, too!lll!I km tlllm :i,5,000. s,11, hllfJJ/wWl.'f.cuJl!l.<1"'10/.91w/01'f•lult.,,~1,?U...,,~4a fm a bt,0J 1111ow,1bllllona.!lowable wi,t5 rur 111is p-1,~ni,n Pl1ta~e lim\l yrnu- (lef.(.tlplio,is lo 1000 chri-rncicr~. Hern Nunwi

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2017 COPS Office Anti-Heroin Task Force {AHTF} Program Application Guide

Travel/Training
Travel costs i,nclude the costs of transportation, lodging, meals, temporary dependent care, and incidental expenses incurred by personnel while on official business, such as attendance at an award-related meeting or conference when travel is further than 50 miles from the program location. Travel and subsistence estimates are based on the contemplated number of trips, places to be visited, length of stay, transportation costs, subsistence allowances, and the recipient's own travel policies. When charging travel costs to federal awards, award recipients must adhere to their internal travel policy.
If a recipient does not have a written travel policy, it must adhere to the Federal Travel Regulations (FTR),
For information on the FTR and U.S. Government General Service Administration (GSA) per diem rates by geographic area, please visit '!!/.\NW,Jlsa.JlQ.11/portal/content/104790,

E. TRAVEUTRAINING

: ·:wo Traval/Tr111r.111g R11q1.1o11atod

111sm1etro1W: lwv-01 fmts 11ro uw $:PQIW,\11 /()I trBD$pormuon, lQ~19, i;1J!Jsta!r,1100, ;,mct relate!l ~Q/TlU ~led by lJfllf)IOyces who an., m travel l!it!ltlW on omcm1 bl1urntm1 Qf tne nonWJOffll cr'l1!tv. 11,m1tm

granl.fC1ll1101J 1111\'tll ~,imruarn (l! gnu1.toe j\llf/lt'>MCI 1mi:e11,1mng wr,~ulmm~, \'l'holl'! oxp[lj,siw am IUl11l<'l m Si!el!Ol'I F} by 1wi:n1 {n.o,, l'tliirwMtmy 1r.11nmg, 111/ltr 10 1min~1g, nnld 1ri10Mnw~. llf!Vl~tllY \Wru11

n11w.11ng1.:J. lr!r.rmry me lor11t1on ol tr11~1 v.11e,nr.1'!:\r r,:)l'aSlllle, ~1111 ~how 11m !\ll/11!l~H1f slnll eJtf)f:tlted m f\\U!'l!d l'All.'h event. !mloll'l!J tees, tm~ltfrn, llldglrig rum per a1em ml~ Jot U/!lf\el'~ s1m11111 be 11~tr.d

::'/::.~!~~!i~:t!:r~':;,(!~: :1:1.:il t~;~,~~~~;.~;;;~~:.r:~::~!i°~:~~~;~~,•t:~~'~!~'~;:~,: ;~;~'l::;:r:t.::i:~~I•;!) ~ir[11m !t;;Wl OtuHlf as sr.pc1ri\tc lr.lllt'! 11.,rm_ Grnnl,:i, 1o~w.1 M5ls ~1xec:ltl<, lo lh" griml pmjr::<,I m~y be bft<ed on me grnnb:.,•, wrll\en 1n1w.l pn1k>J, 11~mm11,·,91hr, t'J;)SL", o,e ,.,»W)flilb4:. Grut>1e¢1 Wlllmut »\'lfll!Cl1 !lmv.l fl<lllq musl

ii w,J!k!n lr.iva! p<)!lcy),

~o;;t,HmlSI bn

the (o!kfflln!]: tho

""' - - • Sec fltlp·l1Www.r.nfi..11srmJ.1JOV!lk!n1<ll.>1~pflll,m.,,m r« iJ llsl al nlk!\'r.able/uMr'<mnt.,h, OO>fo r,,, 11,i~ procyom. PrO\lide u 5p(!<'Jllc de~c:rfpllon in tt,e d<,=Jpll<ln ll!lx~b"k>w lor e'ildl l!mn and e1pl.illl how ltre
limn ~uppurl; Ille 1,rnyidgoo!~ and obj1!dM!~ ll~ ra,lllrn!d In y,,m applU:.a111ln. l'l!!a,;,, limil ~llUr d,,:sc,ip\illns tn 1MO ,Jmrn~lm,;
Evc,1111111c nnd tm:aUon

N.:1.m6

Dttcrtpllon

" ~

•

~ <

--

u

; '

; Dek:le

Include each trip as an individual entry in the Travel/Training section. The name should reflect the name/title of the trip and should not be a group of trips. Registration includes the amount for the registration of the training/conference attendance. Lodging includes the amount for the hotel and any taxes/fees associated. Per diem includes the amount for GSA-approved meals and incidentals. Transportation includes all ground and air transportation as well as public transportation and parking fees.

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2017 COPS Office Anti-Heroin Task Force (AHTF} Program Appl/cation Guide

Contracts/Consultants
Consultant expenses and contracts include goods or services that directly contribute to the implementation or enhancement of the project. The use of a consultant should be more economical than direct employment. Compensation for individual consultant services procured under a COPS Office award must be reasonable and allocable in accordance with Office of Management and Budget (0MB) cost principles and consistent with that paid for similar services in the marketplace. The services should be commensurate with the rate or salary paid by the primary employer. Unless otherwise approved by the COPS Office, independent consultantrates will be approved based on the salary a consultant receives from his or her primary employer, as applicable, up to $650 per day.

F. CONTRACTS/CONSULTANTS

:Jno Contrn<.ll costll R1qv*1lt11(1

lnstrucllo11a: 5coo h!lp;_llwwW UJPl!,Uoooj go..•/06IB11ltai,p?lt1~m"'46 fm a ~$1 Ci! 1;1tklwi1bl,M1nallowflble u.r.\s !Ol' Ul<l parllc1.1l11r prqimrn lo wltlch yoo 111 e ap~~lr,g. P!ovkle a f;peciflc !IBsalplloo Jn 1l1e descr1pllon lloxtffl l)Clo\\l J1lf tJrn;l1 ltom m1d e::,:pltlln l!OI.\' lllil R\lm'J.uppi:,ns proJOI"~ 90011! Md oojOCUVl{ls a~ oi1UiIIOIJ tn yl.lwapp11c.:tlfon. Plw~o 1111111 yow (1($;iil)t101m to 10[)0 cn,1r.attms.

Oon!rar:.t&: Pmvklc a cost ,wt1111at11 fol Uttt pnx:h.u..l or s,;-r~k:e 10 br::, procurn<l by o:mhact ApPlfC<j1lJs me tlfl(;()UHl{)fl<J to pro1row 111,q i!iml ope11 o:mijJclilJ(Jfl In aw~r>:.llnu oonlfllf,hi, II awrm:led. mquesls for solo

souit~ p10C1Jroowll\$ of eq1.1tpment, 1eC1111,:,J(XJY,W MNICl!l> 111 excess cf $100,00() 111Wt b¢ W!)n>l\Ks:I tomcCOl'S Ottlrn lQf prior apPfOVal (5~'0 hl4rJIWww COj:l(i.1J$1'.k)l,flW1Dafa1m ,l$fJ~1to111",J6 tor ffOCll'O

lnlottlk1UOI\ on lM rn,:i1Met1 tlUtmllHIOO.)

....,.

' '

'

•'I,.,,,

!

UNo C,;,l\$UU:ant Ftes RO(lll0$IOd
fnstru~tl1:m~: :Swe hUp:ltM\w.wp~.uli<JoJ.!JUVID!ilf;mlt.i!qJ1111ITTF1£ lo! a l[i;Lofallow'.ib!elwillllowalie cm,W flll Ul(l'. pa11irula1 pmgramlo \\11!ct1 )'W ate apptyil)~. Pro11hl11a specitic !.li1'$1~!pllon in Um tf~i;(;tii,li<Jr\ bQ:<oo bek!W tor euctl !Wrn mil.I expluln tww nu.1 item suppolts Uie ~'lo/~ ~®Iii an(I Obj~"l!vw ll$ Ol!IU!Hii.l 111 ~11r applll.i!fu:m, Pl¢a00 limit )'{J!J! lle~cdp!IQn$ k:11000 cimm~t~'N.
COO$l!Hant F!1a~: For eoro oonsu1t1m1 enter ttru Mme (II ~n011·11). ~er/ire to btl ~ . hO\lr'ly or tlrnl~ ree {Msetl ul](Jn an /!.lltltif day), 111\d .,$1imr:,1fld length of time €\fl Ulc pmJerl. Unfesil otM11'1!ire
,ray -0pprov.ea by tM COPS Offlf,e, approved oon5ullilrit ro1et:1 wlll lll'l Mw.d on Ult sal.ril'f 11 OOl\suttant rood~es rmm lir.l or Iler ptirt•'.ff}' emplwer. coo~o11llnt f8ls io ext.eM of SIJ.50 per roq11lre ll<liiltional wlilltln
'Jns!llk;111!or1 anl'l 1m1.<l h<,> lll(M1f)f1tl{JVji!ll In wdB"ll by tt\C COPS omca ii !hu ,;tm~ullant I$ h!r!/<.f via a hlJt>COmpellt!w. bWl.fir,g pi,IO'!~s
Fl. conoul!nnt Fe~~

i(l(}h1, kM curn, l'X".lrelt!IMI ~I ~1(1();'11'
lla$t!WM:l.@[00---::J ~ ~ ~ - ] !
!
!

I{);)la!!!: I

,,1No eornml!nl'lt Tmvel Roque8\ell m;tni,;.tlorw: sco 1'tlp. 1/\VM'I.rop,;.l.i&doJ 1JOWOefa1.1IL.1tp?Hern...<1tHor ll 1141 Ill alk;,wawetunanovr.illle CO!ll!I. t,r !no pmll~Mm pr.:igmm to "111ch you are applying. Pro~J(IO a tPQCl!lc de!JWp!IGll m tho, <WSf)lpUon
oo~ 1)1:tlow 10r eadl 1wm aM explain now mo ltlJlll $tipfY.ll1S u10 prOJ(lGI 'IJ'XW.I Jtltl Olljt.'<.1i\t{.'\l ns ot11nnerJ in yo11r appll(;,itlOCT, f>lruiso llm!( ymu de:::ctlj.l\!<:m 10 HHJO cilaracter;. Cornmlbml lrmiel: LJij\ au 1m,oke!1Jted oxpmn,-0s \o 00 J>ald from lh<!'graril!o Uro ~ldMtllml COJ1su1t11nta {eg.. ln,rn,prn!itlloo, 11,a11!s. loi:tgtr.m¥<1paru!a lrorrdhf:it Cf',,llS\lltanl fCIW
F3. Gormull!lnl Tmvel

Case 3:17-cv-04701-WHO Document 11 Filed 10/13/17 Page 274 of 310
2017 COPS Office Anti-Heroin Task Force (AHTF) Program Appl/cation Gulde

_-::NeaC(mSultont E)(jle1moa Roquostod

1'11,lwclloni;.: s,,., hllr,1J\w.w.,>1f>5 usdoJ gov/0.!fau.i! ;;t,p?l!um=~O lo, :i llsl o! allO\'r.ib:i,/urwllmw•lllf! oosls rra OW pmlieolm pmgrarn tc,who:h you me 11pplylrnJ P,ovlrlP. "sp!ldff<l dr,st,1ipl11JO 111 Um <k!~WJ~lon JJox.e~ \mlow !(l{ euch limn m1,111xp1ah1 how\h!l 1\11111 ~ur11101t~ llm projo,;Lgu~hi 11110 obJe,UVc& iis ou1lk100 ~1 l",)l.lr uppl1callc11. Pl11u1a hmll Jl<lUr ije~o11[!1ion~ le> 1000 Cliaru~\~rn.

- · · · • <lon~ultm,t E.xp<'n~..,: I.M i!U <1!tmr e~pcn,cs lobe p,1/d lrom tilt! grr1111 to tf•i lridw~b101 P011"1iit.in1!est?prn.1l~ Imm 1111:;, <:mmult,.nl foe~ nnd 1,,.,,.,1 ,:,xfK'll~cs (,:.9., mt11pitkt cqu1pmerd ar'l<I oflit:<r .supplic~)
1'4. COO$l!1Wnl l:~O'l'!I

[J}i,1,1,,tllll'AT~>\IM

cm~,"'~"'~--~1 ] t}a~c~to>l:

(C ·-1 (foo(foo------, 1

___l

= i n1.11:~_____

Include name of contract/consultant/travel/expense with a description of the scope of the work. Unless justification is provided, the daily rate for the consultant should not exceed $650/day. Consultant travel should follow the same format as the travel section detailed in the section above. Similar to supplies and equipment, consultant expenses should be broken out by item rather than one grouping.
Other Costs
Items not included in the above categories but which have a direct correlation to the overall success of a recipient's project objectives and are necessary for the project to reach full implementation will be considered on a case-by-case basis by the COPS Office. Please include all overtime costs in this section.

G. OTHER COSTS

U No Olher Co:sl:s Requ~s-t~cl

Instruction~: WITT !Jllnx reque~\-IKl nom~ Umt will s1Jpl}l,1\ Ole projt!Cl Ql)llls mu.I c,~je,li\'!:!S-OS ouUiflUtJ In your applitu11on. Provide It SP11Clfi11 d111,1;rlptl,;,n !or o;mch iwm In Ut11 dvsof1pt1onbQJ1;'l'$ bvl<.>waftd

11xpl111ffl MWth11 llern WP)l(lrl11 UW pr!'.!j(tc\ go111~ amt Qbjeotlvillt u~ out111111d Ln your (tpp!h;,atlon.

,. ,oo~ F'lITTl$1t ll~ ;,,1vls~I !hnt, lei ~11! om.Mutt oo.Jenl p,rn.1,r,,11, ;;ill ffl11ilpm,;rrt and pn,d1!(;1:s pmf.lmsed wttt1 lllnw

mt,slba /\mll,lciin,.made.

$11-1 !11\p:ll\W.w,oop~.1mdoj.gow'Ol1fa<AL:1:1~r111rnu,.,tt.1 r01 u 11:a1 o! Gllowallklfwmlkll'mble coots tr;ir th@ pwgrnm. P!eam1 urn~ your iklo&t.:tlplion$ to 1000 mmrnctei:i.

•

j Deletti

Section 15. Assurances and Certifications
Applicants to COPS Office programs are required to sign the standard Assurances and Certifications forms. Signing these documents assures the COPS Office that you have read and understood and that you accept the award terms and conditions as outlined in the Assurances and Certifications. Please read these documents carefully, as signatures on these documents are treated as material representation of fact upon which reliance will be placed when the U.S. Department of Justice determines to fund the covered award.
Section 16A. Disclosure of lobbying activities
This disclosure form shall be completed by the reporting entity, whether subawardee or prime federal recipient, at the initiation or receipt of a covered federal action, or a material change to a previous filing, pursuant to title 31 U.S.C. § 1352. The filing of a form is required for each payment or agreement to make payment to any lobbying entity for influencing or attempting to influence an officer or employee of any agency, a member of Congress, an officer or employee of Congress, or an employee of a member of Congress in connection with a covered federal

Case 3:17-cv-04701-WHO Document 11 Filed 10/13/17 Page 275 of 310
2017 COPS Office Anti-Heroin Task Force (AHTF} Program Appl/cation Guide
action. c.omplete all items that apply for both the initial filing and material change report. Refer to the implementing guidance published by the Office of Management and Budget for additional information. If this applies to your agency, you are required to complete the disclosure form. If you need to submit additional forms, please submit them as attachments to your application on line in section 13, Application attachments.
Section 16B. Certification of Compliance with 8 U.S.C. 1373
In FY 2017, all State or local government entity applicants (e.g., police departments, sheriff's departments, state police) are required to certify compliance with 8 U.S.C. § 1373 regarding prohibitions or restrictions on sending to, requesting or receiving from, maintaining, or exchanging information on citizenship or immigration status, including any prohibitions or restrictions imposed or established by a State or local government entity or official.
This certification must be completed by the governing body's chief legal officer (e.g., City or County Attorney). We strongly recommend notifying your governing body's chief legal counsel of this certification requirement as soon as the AHTF application period opens so that they may conduct the required reviews necessary for completing the certification before the application deadline.
Questions regarding the certification requirement may be directed to the COPS Office Legal Division at 202-5143750.
Section 17. Reviews and certifications
Please be advised that an application may not be funded or, if awarded, a hold may be placed on this application if it is deemed that the applicant is not in compliance with federal civil rights laws, and/or is not cooperating with an ongoing federal civil rights investigation, and/or is not cooperating with a U.S. Department of Justice award review or audit.
Applicants must certify whether or not their agency will use COPS Office funds (if awarded) to operate an . interjurisdictional criminal intelligence system. If yes, the applicant assures the COPS Office that it will comply with the requirements of 28 C.F.R. Part 23.
The signatures of the law enforcement executive/agency executive, government executive/financial official, and the person submitting this application on the reviews and certifications represent to the COPS Office that
• .the signatories have been legally and officially authorized by the appropriate governing body to submit this application and act on behalf of the award applicant entity;
• the applicant will comply with all legal, administrative, and programmatic requirements that govern the applicant for acceptance and use of federal funds as outlined in the applicable COPS Office application guide, the COPS Office award owner's manual, Assurances, Certifications, and all other applicable program regulations, laws, orders, and circulars;
• the applicant understands that false statements or claims made in connection with COPS Office programs may result in fines; imprisonment; debarment from participating in federal grants, cooperative agreements, or contracts; and/or any other remedy available by law to the Federal Government;
• the Information provided in this application, including any amendments, shall be treated as material representations of fact upon which reliance will be placed when the U.S. Department of Justice determines to
award the covered award;

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2017 COPS Office Anti-Heroin Task Force (AHTF) Program Appl/cation Guide
• the applicant understands that as a general rule COPS Office funding may not be used for the same item or service funded through another funding source;
• the applicant and any required or identified official partner(s) listed in section 12 are partners in this award project and mutually agreed to this partnership prior to this award application.
The signatures of the law enforcement executive/agency executive and the government executive/financial official in the application must be the same as those identified in section 4 of the application. Applications with missing, incomplete, or inaccurate signatories or responses may not be considered for funding.
Section 18. Application data verification - Not applicable at time of application
After submission of this application, the COPS Office may require your department to verify data provided in the application. This section is to be completed once the data has been reviewed, confirmed, and/or updated. Failure to respond to the request may eliminate the application from 2017 funding consideration. The purpose of this section is to confirm the following:
• That the person reviewing, confirming, and/or updating the data is authorized by the appropriate governing body to act on behalf of the award applicant entity
• That the information provided, including any amendments, be treated as material representations of fact upon which reliance will be placed when the U.S. Department of Justice determines to fund the covered award
• That the applicant understands that false statements or claims made in connection with COPS Office programs may result in fines; imprisonment; debarment from participating in federal awards, cooperative agreements, or contracts; and/or other remedy available to by law to the Federal Government.

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Appendices
Appendix A. Glossary of COPS Office program terms
The following information is provided to assist you with the completion of your COPS Office award program application forms. The list includes some of the most common terms. that are used in the application forms. For additional assistance or clarification regarding any part of the application, please contact your Grant Program Specialist at 800-421-6770.
allowable costs. Allowable costs are costs that will be paid for by this award program.
authorized officials. The authorized officials are the individuals in your organization who have final authority and responsibility for all programmatic and financial decisions regarding your application and, if funded, your award. For law enforcement agencies, the listed law enforcement executive (usually chief of police, sheriff, etc.) and the government executive (usually mayor, board president, etc.) are your agency's authorized officials.
authorized organizational representative (AOR). A person authorized by your e-business POC to submit applications to·Grants.gov. This privilege should be provided only to those individuals who currently have signature authority for submitting award applications. The name of the individual designated as an AOR will be populated by the Grants.gov system in award application package forms, which require signatures. An organization can assign as many AO Rs to use Grants.gov as necessary.
automated booking system. An automated booking system captures arrestee fingerprints and photographic information electronically and often has the ability to transfer that information to a departmental or state-wide database.
automated fingerprint identification system {AFIS). An AFIS is a highly specialized biometrics system that compares a single fingerprint image with a database of fingerprint images. Fingerprint images are collected from crime scenes or are taken from criminal suspects when they are arrested. Fingerprint images may be captured by placing a finger on a scanner or by electronically scanning inked impressions on paper.
award number. If funded, the award riumber identifies your agency's specific award, and can be found on your award document. This number should be used as a reference when corresponding with the COPS Office. The COPS Office tracks award information based upon this number.
award start date. This is the date on or after which your agency is authorized to purchase items or hire positions that were approved by the COPS Office. If funded, the award start date is found on your award document. Recipients may not make any purchases or hire any positions prior to this date without written approval from the COPS Office.
career law enforcement officer. The COPS Office statute defines a career law enforcement officer as a person hired on a permanent basis who is authorized by law or by a state or local public agency to engage in or oversee the prevention, detection, or investigation of violations of criminal laws.

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Catalog of Federal Domestic Assistance {CFDA), The CFDA is an annual government-wide publication that contains a description and index of all forms of federal assistance. Each program is assigned a CFDA number, which is used by auditors to track grant revenues under the Single Audit Act. It is also used in participating states by state single points of contact in conducting the required intergovernmental reviews under Executive Order 12372. The CFDA number for all COPS Office programs is 16.710.
closeout. The process in which the awarding agency, the COPS Office, determines that all applicable administrative actions and all required work and conditions of the award have been completed and met by the recipient and awarding agency.
cognizant federal agency. The federal agency that generally provides the most federal financial assistance to the recipient of funds. Cognizance is assigned by the Office of Management and Budget (0MB).
Community-oriented policing. Community-oriented policing is a philosophy that promotes organizational strategies that support the systematic use of partnerships and problem-solving techniques to proactively address the immediate conditions that give rise to public safety issues such as crime, social disorder, and fear of crime.
Computer-aided dispatch {CAD) system. A CAD system is a computer database that can track calls for service, maintain status of units available, provide various reports, produce address histories, and support electronic mail. With the installation of integrated CAD systems, officers are able to receive calls for service on their mobile data terminals rather than over the radio. Radios can then be used only for serious emergencies.
computing devices. Computing devices are machines used to acquire, store, analyze, process, and publish data and other information electronically, including accessories (or "peripherals") for printing, transmitting, and receiving, or storing electronic inforniation.
consortium. A consortium is a group of two or more governmental entities that agree to form a partnership to provide law enforcement services to their constituent communities.
COPS Office, The Office of Community Oriented Policing Services (COPS Office) is the office within the U.S. Department of Justice that, if funded, is your awarding agency for your COPS Office award. The COPS Office is responsible for administering your award for the entire award period. You can reach the COPS Office at 800-421· 6770.
COPS Office finance staff. Members of the COPS Office finance staff handle your agency's financial and budgetary needs related to your application. A financial analyst is assigned to your state, and is available to answer any questions that you may have concerning the financial aspects of your award, if funded. To identify your state assigned financial analyst, please call the COPS Office Response Center at 800-421-6770, or visit the COPS Office web site at www.copA,usdoj,gQy.
DUNS number. DUNS stands for "data universal numbering system." DUNS numbers are issued by Dun and Bradstreet (D&B) and consist of nine or thirteen digits. If your institution does not have one, call 866-705-5711 to receive one free of charge. You can also request your DUNS number on line at www.dnb.com.
e-business point of contact (POC}. Your e-business POC is the person who will designate which staff members can submit applications through Grants.gov. When you register with SAM, your institution will be asked to designate an e-Business POC.

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EPIC (El Paso Intelligence Center) National Clandestine Laboratory Seizure Database. The U.S. Department of Justice maintains this database to track seizure of clandestine drug laboratories. It contains addresses of some locations where law enforcement agencies reported they found chemicals or other items that indicated the presence of either clandestine drug laboratories or dumpsites.
equipment. Equipment is tangible personal property (including information technology systems) having a useful life of more than one year and a per-unit acquisition cost that equals or exceeds $5,000.
federally recognized tribe. Tribal entities that are recognized and eligible for funding and services from the Bureau of Indian Affairs by virtue of their status as Indian tribes. They are acknowledged to have the immunities and privileges available to other federally acknowledged Indian tribes by virtue of their government-to-government relationship with the United States as well as the responsibilities, power, limitation, and obligations of such tribes. Only federally recognized tribes are eligible to apply for COPS Office tribal award funds. For further information, contact: Bureau of Indian Affairs, Division a/Tribal Government Services, MS-4631-MIB, 1849 CStreet NW, Washington, DC 20240, 202-208-2475 .
. GNIS ID. The Geographic Names Information System (GNIS) database is maintained by the U.S. Geological Survey, U.S. Department of the Interior. The database assigns a unique, permanent feature identifier, the Feature ID, which is the only standard federal key for integrating or reconciling feature data from multiple datasets.
global positioning system (GPS). Global positioning systems are a series of 24 geosynchronous satellites that continuously transmit their position. Each system is used in personal tracking, navigation, and automatic vehicle location technologies.
interoperable communications. Communications interoperability refers to the ability to talk across disciplines and jurisdictions via radio communications networks on demand, in real time. Interoperable communications equipment and technology is used to increase interoperability and data information- sharing among the law enforcement, fire service, and emergency medical service communities.
Local Area Unemployment Statistics (LAUS). The Bureau of Labor Statistics' LAUS program provides monthly
estimates of unemployment for communities. For more information and detailed instructions for looking up your
local area's unemployment rate, please visit www.bls,g!>J!Llau/data.htm.
local budget cycle. Your agency's fiscal year. Some common examples include January 1 to December 31, October 1 to September 30, and July 1 to June 30. Some local budget cycles may extend up to 24 months.
M-PIN. Password used by your e-business point of contact to designate which staff members can submit applications to Grants.gov.
matching funds. What a locality must contribute as a cash match toward total allowable project costs over the life of the program.
mobile data computer/laptop. A mobile data computer (MDC) is a computer terminal mounted in a vehicle that is linked via wireless communication to a network that is often integrated with a CAD system. MDCs enable officers to complete previously handwritten reports on a computer. This often eliminates the need to enter duplicate information on multiple reports.
National Incident-Based Reporting System (NIBRS). A comprehensive reporting database. Agencies provide individual records for eight index crimes and 38 other offenses.

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obligation of funds. If this application is awarded, the COPS Office obligates federal funds when the award document is signed by the director or his or her designated official. For the recipient, award funds are obligated when monies are spent directly on purchasing items approved under the award. The term encumbrance is often used at the local and state levels to describe this type of transaction, Liquidated obligations are considered cash outlays or monies actually spent. Unliquidated obligations are obligations incurred and recorded but not yet paid. (accrual basis of accounting) or not yet recorded and not yet paid (cash basis of accounting).
OJP vendor number/EIN number. This is your agency's nine-digit federal tax identification number assigned to you by the IRS. Your accounting/bookkeeping department should have this number. If your EIN previously has been assigned to another agency within your jurisdiction, the Office of the Comptroller will assign a new OJP vendor number to you. The new assigned number is to be used for administrative purposes only, in connection with this award program, and should not be used for IRS purposes.
ORI {Originating Agency Identifier) number. This number is assigned by the FBI and is your agency's originating agency identifier. The first two letters are your state abbreviation, the next three numbers are your county's code, and the final two numbers identify your jurisdiction within your county. When you contact the COPS Office with a question, you can use the ORI number, and we will be able.to assist you. If you are a previous COPS Office award recipient, you may have been assigned an ORI number through the COPS Office if the FBI had not previously assigned your agency this identifier number.
primary law enforcement authority. An agency with primary law enforcement authority is defined as the first responder to calls for service for all types of criminal incidents within its jurisdiction. Agencies are not considered to have primary law enforcement authority if they only respond to or investigate specific type(s) of crime(s); respond to or investigate crimes within a correctional institution; serve warrants; provide courthouse security; transport prisoners; and/or have cases referred to them for investigation or investigational support.
Public Safety Partnership and Community Policing Act of 1994. The COPS Office is charged with fulfilling the mandates of this law. The purposes of the law are to
• increase the number of community policing officers on the beat; • provide additional and more effective training to law enforcement officers to enhance their problem solving,
service, and other skills needed in interacting with members of the community; • encourage the development and implementation of innovative programs to permit members of the
community to assist law enforcement agencies in the prevention of crime; • encourage the development of new technologies to assist law enforcement agencies in reorienting the
emphasis of their activities from reacting to crime to preventing crime.
recipient. A nonfederal entity that receives a federal award directly from a federal awarding agency to carry out an activity under a federal program. The term recipient does not include subrecipients. See also §200.69 NonFederal entity." 2 CFR 200.86
school resource officer {SRO), A career law enforcement officer, with sworn authority, deployed in communityoriented policing, and assigned by the employing police department or agency to work in collaboration with schools and community-based organizations to (a) address crime and disorder problems, gangs, and drug activities affecting or occurring in our around and elementary or secondary school; (b) deploy or expand crime prevention efforts for students; (C) educate likely school-age victims in crime prevention and safety; (d) develop or expand community justice initiatives for students; (e) train students in conflict resolution, restorative justice, and crime

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awareness; (f) assist in the identification of physical changes in the environment that may reduce crime in or around the school; and (g) assist in developing school policy that addresses crime and to recommend procedural changes.
supplanting. COPS Office award funds may not be used to supplant (replace) state, local, or Bureau of Indian
Affairs (BIA) funds that would be made available in the absence of federal COPS Office award funding. Program funds must be used to increase the amount of state, local, or BIA funds otherwise budgeted for the award purposes, plus any additional state, local, or BIA funds budgeted for these purposes.
System for Award Management (SAM). Institutions applying for any type of award from the Federal Government
must register with SAM. The SAM database is the repository for standard information about federal financial assistance applicants, recipients, and sub-recipients. Applicants must update or renew their SAM at least once per year to maintarn an active status. Information about registration procedures can be accessed at ~ww.sam.ggy.

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Appendix B. Assurances
Several provisions of federal law and policy apply to all award programs. The Office of Community Oriented Policing Services ("COPS Office") needs to secure your assurance that the applicant will comply with these provisions. If you would like further information about any of these assurances, please contact your state's COPS Office Grant Program Specialist at 800-421-6770.
By signing this form, the applicant assures that it will comply with all legal and administrative requirements that govern the applicant for acceptance and use of federal award funds. In particular, the applicant assures us of the following:
1. It has been legally and officially authorized by the appropriate governing body (for example, mayor or city council) to apply forth is award and that the persons signing the application and these assurances on its behalf are authorized to do so and to act on its behalf with respect to any issues that may arise during processing of this appllcation.
2. It will comply with the provisions of federal law, which limit certain political activities of employees whose principal employment is in connection with an activity financed in whole or in part with this award. These restrictions are set forth in 5 U.S.C. § 1501 et seq.
3. It will comply with the minimum wage and maximum hours provisions of the Fair Labor Standards Act (29 U.S.C. § 201 et seq.), if applicable.
4. It will establish safeguards, if it has not done so already, to prohibit employees from using their positions for a purpose that is, or gives the appearance of being motivated by a desire for private gain for themselves or others, particularly those with whom they have family, business or other ties. In addition, it will disclose (in writing) to the COPS Office any potential conflict of interest arising during the course of performance of the award and also will require such written disclosures by any subrecipients.
5. As required by 42 U.S.C. § 3796dd-6, it will give the U.S. Department of Justice or the Comptroller General access to and the right to examine records and documents related to the award.
6. It will comply with all requirements imposed by the U.S. Department of Justice as a condition or administrative requirement of the award, including but not limited to: the requirements of 2 C.F.R. Part 200 (Uniform Administrative Requirements, Cost Principles, and Audit Requirements for Federal Awards) as adopted by the U.S. Department of Justice in 2 C.F.R. § 2800.101; 48 C.F.R. Part 31 (FAR Part 31) (Contract Cost Principles and Procedures); the applicable provisions of the Omnibus Crime Control and Safe Streets Act of 1968, as amended; 28 C.F.R. Part 38 (Partnerships With Faith-Based and Other Neighborhood Organizations); the applicable COPS Office application guide; the applicable COPS Office award owner's manual; and with all other applicable program requirements, laws, orders, or regulations.
7. As required by 42 U.S.C. § 3796dd-l(c) (11), it will, to the extent practicable and consistent with applicable law, seek, recruit and hire qualified members of racial and ethnic minority groups and qualified women in order to further effective law enforcement by increasing their ranks within the sworn positions in the agency.
8. It will not (and will require any subrecipient, contractors, successors, transferees, and assignees not to), on the grounds of race, color, religion, national origin, sex, or disability unlawfully exclude any person from participation in, deny the benefits of, or employment to any person, or subject any person to discrimination in connection with any programs or activities funded In whole or in part with federal funds. It will also not discriminate in the delivery of benefits or services based on age. These civil rights requirements are found in the non-discrimination provisions of Title VI of the Civil Rights Act of 1964, as amended (42 U.S.C. § 2000d); the Omnibus Crime Control and Safe Streets Act of 1968, as amended (42 U.S.C. § 3789d); Section 504 of the

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Rehabilitation Act of 1973, as amended (29 U.S.C. § 794); the Age Discrimination Act of 1975, as amended (42 U.S.C. § 6101); Title IX of the Education Amendments of 1972, as amended (20 U.S.C. § 1681); and the corresponding U.S. Department of Justice regulations implementing those statutes at 28 C.F.R. Part 42. (subparts C, D, E, G, and I). It will also comply with Executive Order 13279, as amended by Executive Order 13559, and the implementing regulations at 28 C.F.R Part 38, Partnerships With Faith-Based and Other Neighborhood Organizations, which requires equal treatment of religious organizations in the funding process and prohibits religious discrimination against beneficiaries. A. In the event that any court or administrative agency makes a finding of discrimination on grounds of race,
color, religion, national origin, or sex against the applicant after a due process hearing, it agrees to forward a copy of the finding to the Office for Civil Rights, Office of Justice Programs, 810 7th Street, NW, Washington, D.C. 20531. B. If your organization is a government agency or private business and has received a single award for $25,000 or more and has fifty or more employees (counting both full- and part-time employees but excluding political appointees), then it has to prepare a Utilization Report and submit it to the Office for Civil Rights (OCR) within 120 days from the date of the award. Although the OCR has discretion to review all submitted Utilization Reports, it will review the Utilization Reports from recipients that receive an award of $500,000 or more. To begin developing a Utilization Report, please consult the OCR's website at
h!!P.1L&ww.ojp.usdoj,&Qv/ab'1l!!Locr/eeop.j,tm and click EEOP Reporting Tool Login. Additional
assistance can be found on line at the bottom of the same webpage by clicking the EEO Reporting Tool Job Aid and Frequently Asked Questions. If your organization has less than fifty employees or receives an award of less than $25,000 or is a nonprofit organization, a medical institution, an educational institution, or an Indian tribe, then it is exempt from the EEOP requirement. To claim the exemption, however, your organization must certify that it is exempt by logging into the EEO Reporting Tool on the OCR website at
b!!P~//WW!!Y,.!fil!.USq.QJ,gov/about/ocr/ee<:rn,h!m, providing the contact and organizational profile
information, and then submitting a Certificate of Exemption. If you have further questions regarding the EEOP requirements, you may contact an EEOP specialist at the
OCR by telephone at 202-307-0690, by TIY at 202-307-2027, or by e-mail at EEOPforms@usdoj.gov.
9. Pursuant to U.S. Department of Justice guidelines (June 18, 2002 Federal Register, Volume 67, Number 117, pages 41455-41472), under Title VI of the Civil Rights Act of 1964, it will ensure meaningful access to its programs and activities by persons with limited English proficiency.
10. It will ensure that any facilities under its ownership, lease or supervision which shall be utilized in the accomplishment of the project are not listed on the Environmental Protection Agency' (EPA) list of Violating Facilities and that it will notify us if advised by the EPA that a facility to be used in this grant is under consideration for such listing by the EPA.
11. If the applicant's state has established a review and comment procedure under Executive Order 12372 and has selected this program for review, it has made this application available for review by the state Single Point of Contact.
12. It will submit all surveys, interview protocols, and other information collections to the COPS Office for submission to the Office of Management and Budget for clearance under the Paperwork Reduction Act of 1995 if required.

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13. It will comply with the Human Subjects Research Risk Protections requirements of 28 C.F.R. Part 46 if any part

of the funded project contains non-exempt research or statistical activities which involve human subjects and

also with 28 C.F.R. Part 22, requiring the safeguarding of individually identifiable information collected from

research participants.

14. Pursuant to Executive Order 13043, it will enforce on-the-job seat belt policies and programs for employees

when operating agency-owned· or- rented or personally-owned vehicles.

15. As required by 42 U.S.C. § 3796dd·3(a), it will not use COPS Office funds to supplant (replace) state, local, or

Bureau of Indian Affairs funds that otherwise would be made available for the purposes of this award, as

applicable.

16. If the award contains a retention requirement, it will retain the increased officer staffing level or the increased

officer redeployment level, as applicable, with state or local funds for a minimum of 12 months following

expiration of the award period.

17. It will not use any federal funding directly or indirectly to influence in any manner a Member of Congress, a

jurisdiction 1

or

an

official

of

any

government,

to

favor,

adopt,

or

oppose,

by

vote

or

otherwise,

any

legislation1

law ratification, policy or appropriation whether before or after the introduction of any bill, measure, or

resolution proposing such legislation, law, ratification, policy or appropriation as set forth in the Anti- Lobby

Act, 18 U.S.C. § 1913.

18. In the event that a portion of award reimbursements are seized to pay off delinquent federal debts through

the Treasury Offset Program or other debt collection process, it agrees to increase the nonfederal share (or, if

the award does not contain a cost sharing requirement, contribute a nonfederal share) equal to the amount

seized in order to fully implement the award project.

False statements or claims made in connection with COPS Office award may result in fines, imprisonment, debarment from participating in federal awards or contracts, and/or any other remedy available by law.

I certify that the assurances provided are true and accurate to the best of my knowledge.

Electio.ns or other selections of new officials will not relieve the recipient of its obligations under this award.

Signature of Law Enforcement Executive/Agency Executive Date (For your electronic signature, please type in your name)

Signature of Government Executive/Financial Official

Date

(For your electronic signature, please type In your name)

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Appendix C. Certifications Regarding Lobbying; Debarment, Suspension and Other Responsibility Matters; Federal Taxes and Assessments; Drug-Free Workplace Requirements; and Coordination with Affected Agencies.
Although the U.S. Department of Justice has made every effort to simplify the application process, other provisions of federal law require us to seek your agency's certification regarding certain matters. Applicants should carefully review the statutes and regulati6ns cited below and the instructions for certification to understand the requirements and whether they apply to a particular applicant. Signing this form complies with the certification and notice requirements under 28 C.F.R. Part 69 "New Restrictions on Lobbying"; 2 C.F.R. Part 2867 "Nonprocurement Debarment and Suspension"; 2 C.F.R. Part 200 "Uniform Administrative Requirements, Cost Principles, and Audit Requirements for Federal Awards"; the general provisions in the applicable Appropriations Act; 28 C.F.R. Part 83 "Government-Wide Requirements for Drug-Free Workplace (Grants)"; and the Public Safety Partnership and Community Policing Act of 1994. The certifications shall be treated as a material representation of fact upon which reliance will be placed when the U.S. Department of Justice determines to make the covered award.
1. Lobbying
As required by 31 U.S.C. § 1352, implemented at 28 C.F.R. Part 69, for persons entering into a grant or cooperative agreement over $100,000, and 2 C.F.R. § 200.450 as adopted by the U.S. Department of Justice in 2 C.F.R. § 2800.101, the applicant certifies to the following:
A. No federal appropriated funds have been paid or will be paid, by or on behalf of the undersigned, to any person for influencing or attempting to influence an officer or employee of any agency, a member of Congress, an officer or employee of Congress, or an employee of a member of Congress in connection with the making of any federal grant; the entering into of any cooperative agreement; or the extension, continuation renewal, amendment or modification of any federal grant or cooperative agreement.
1
B. If any funds other than federal appropriated funds have been paid or will be paid to any person for Influencing or attempting to influence an officer or employee of any agency, a member of Congress, an officer or employee of Congress, or an employee of a member of Congress in connection with this federal grant or cooperative agreement, the undersigned shall complete and submit Standard Form - LLL, "Disclosure of Lobbying Activities," in accordance with its instructions.
C. If applicant is a nonprofit organization or an institution of higher education, it will comply with the additional lobbying restrictions set forth in 2 C.F.R. § 200.450(c) as adopted by the U.S. Department of Justice in 2 C.F.R. § 2800.101.
D. The undersigned shall require that the language of this certification be included in the award documents for all subawards at all tiers (including subgrants, contracts under grants and cooperative agreements, and subcontracts) and that all subrecipients shall certify and disclose accordingly.

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2. Debarment, Suspension and Other Responsibility Matters (Direct Recipient)
Pursuant to Executive Order 12549, Debarment and Suspension, as implemented at 2 C.F.R. Part 2867, for prospective participants in primary covered transactions, as defined at 2 C.F.R. § 2867.20(a), and other requirements, the applicant certifies that it and its principals:
A. Are not presently debarred, suspended, proposed for debarment, declared ineligible, sentenced to a denial of federal benefits by a state or federal court, or voluntarily excluded from covered transactions by any federal department or agency;
B. Have not within a three-year period preceding this application been convicted of a felony criminal violation under any federal law, or been convicted or had a civil judgment rendered against them for commission of fraud or a criminal offense in connection with obtaining, attempting to obtain, or performing a public (federal, state or local) or private agreement or transaction; violation of federal or state antitrust statutes or commission of embezzlement, theft, forgery, bribery, falsification or destruction of records, making false statements, tax evasion or receiving stolen property, making false claims, or obstruction of justice, or commission of any offense indicating a lack of business integrity or business honesty that seriously and directly affects your present responsibility;
C. Are not presently indicted for or otherwise criminally or civilly charged by a governmental entity (federal, state or local) with commission of any of the offenses enumerated in paragraph B. of this certification; and
D. Have not within a three-year period preceding this application had one or more public transactions (federal, state or local) terminated for cause or default.
3. Mandatory Disclosure
Pursuant to the Uniform Administrative Requirements, Cost Principles, and Audit Requirements for Federal Awards, 2 C.F.R. § 200.113 as adopted by the U.S. Department of Justice in 2 C.F.R. § 2800.101, the applicant certifies that it:
A.· Has not violated any federal criminal law involving fraud, bribery, or gratuity that may potentially affect t.he federal award;
B. Shall timely disclose in writing to the federal awarding agency or pass-through entity, as applicable, any violation of federal criminal law involving fraud, bribery, or gratuity that may potentially affect the federal award; and
C. Shall require that the language of this certification be included in the award documents for ail subawards (in'cluding subgrants and cooperative agreements) and shall require ail subrecipients certify and disclose accordingly.
4. Federal Taxes and Assessments A. If applicable, an applicant who receives an award in excess of $5,000,000 certifies that, to the best of its knowledge and belief, the applicant has filed all federal tax returns required during the three years preceding the certification, has not been convicted of a criminal offense under the Internal Revenue Code of 1986, and has not, more than 90 days prior to certification, been notified of any unpaid federal tax assessment for which the liability remains unsatisfied, unless the assessment is the subject of an installment agreement or offer in compromise that has been approved by the Internal Revenue Service and is not in default, or the assessment is the subject of a non-frivolous administrative or judicial proceeding.

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B. The applicant certifies that it does not have any unpaid federal tax liability that has been assessed, for which all judicial and administrative remedies have been exhausted or have lapsed, and that is not being paid in a timely manner pursuant to an agreement with the authority responsible for collecting the tax liability.
5. Drug-Free Workp.lace
As required by the Drug-Free Workplace Act of 1988 (41 U.S.C. § 8103), implemented at 28 C.F.R. Part 83, for recipients other than individuals as defined at 28 C.F.R. § 83.660-
A. The applicant certifies that it will, or will continue to, provide a drug- free workplace by doing the following: i. Publishing a statement notifying employees that the unlawful manufacture, distribution, dispensing, possession or use of a controlled substance is prohibited in the grantee's workplace and specifying the actions that will be taken against employees for violation of such prohibition; ii. Establishing an on-going drug-free awareness program to inform employees about a. the dangers of drug abuse in the workplace; b. the grantee's policy of maintaining a drug-free workplace; c. any available drug counseling, rehabilitation and employee assistance programs; and d. the penalties that may be imposed upon employees for drug-abuse violations occurring in the workplace; iii. Making it a requirement that each employee to be engaged in the performance of the grant be given a copy of the statement required by paragraph (i); iv. Notifying the employee in the statement required by paragraph (i) that, as a condition of employment under the grant, the employee will a. abide by the terms of the statement; and b. notify the employer in writing of his or her conviction for a violation of a criminal drug statute occurring in the workplace no later than five calendar days after such conviction; v. Notifying the agency in writing within 10 calendar days after receiving notice under subparagraph (iv)(b) from an employee or otherwise receiving actual notice of such conviction. Employers of convicted employees must provide notice, including position title, to: COPS Office, 145 N Street, NE, Washington, D.C. 20530. Notice shall include the identification number(s) of each affected grant; vi. Taking one of the following actions within 30 calendar days of receiving notice under subparagraph (iv)(b) with respect to any employee who is so convicted a. Taking appropriate personnel action against such an employee, up to and including termination, consistent with the requirements of the Rehabilitation Act of 1973, as amended; or · b. Requiring such employee.to participate satisfactorily in a drug abuse assistance or rehabilitation program approved for such purposes by a federal, state or local health, law enforcement or other appropriate agency; vii. Making a good faith effort to continue to maintain a drug-free workplace through implementation of paragraphs (i), (ii), (iii), (iv), (v), and (vi).
B. The applicant further certifies that it will identify all known workplaces under each COPS Office award, keep the identification documents on file, and make them available for inspection upon request by the U.S. Department of Justice officials or their designated representatives.

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6. Coordination
As required by 42 U.S.C. § 3796dd-l(c)(5) of the Public Safety Partnership and Community Policing Act of 1994, applicants must certify that there has been appropriate coordination with all agencies that may be affected by the applicant's grant proposal if approved. Affected agencies may include, among others, the Office of the United States Attorney, state or local prosecutors, or correctional agencies. The applicant certifies that there has been appropriate coordination with all affected agencies.
Where the applicant is unable to certify to any of the statements in this Certifications form, he or she shall attach an explanation to this application regarding the particular statement that cannot be certified. Please check the box if an explanation is attached to this application. Please note that the applicant is still required to sign the Certifications form to .certify to all the other applicable statements.
False statements or claims made in connection with COPS Office awards may result in fines, Imprisonment, debarment from participating in federal awards or contracts, and/or any other remedy available by law.
I certify that the assurances provided are true and accurate to the best of my knowledge.
Elections or other selections of new officials will not relieve the recipient entity of its obligations under this award.

Signature of Law Enforcement Executive/Agency Executive (For your electronic signature, please type in your name)

Date

Signature of Government Executive/Financial Official

Date

(For your electronic signature, please type in your name)

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Appendix D. Compliance with 8 U.S.C. 1373
1. Authority to obligate or expend contingent on compliance with 8 U.S.C. 1373
NOTE: This grant condition applies only to State or local government entities or to non-State or local government entities that make subawards with these funds to a State or local government entity.
State or local government entity recipients of this award, and any subrecipient of this award at any tier that is an entity of a State or of a unit of local government, may not obligate or expend award funds if- at the time of the obligation or expenditure -the "program or activity" of the recipient funded in whole or in part with the award funds (which includes any such program or activity of any subrecipient at any tier) is subject to any prohibitions or restrictions on sending to, requesting or receiving from, maintaining, or exchanging information on citizenship or immigration status as described in 8 U.S.C. 1373(a) or (b), including any prohibitions or restrictions imposed or established by a State or local government entity or official.
A subrecipient oft.his award (at any tier) that is an entity of a State or of a unit of local government may not obligate or expend award funds if - at the time of the obligation or expenditure -the "program or activity" of the sub recipient (which includes any such program or activity of any subrecipient at any further tier) funded (in whole or in part) with award funds is subject to any prohibitions or restrictions on sending to, requesting or receiving from, maintaining, or exchanging information on citizenship or immigration status as described in 8 U.S.C. 1373(a) or (b), including any prohibitions or restrictions imposed by a State or local government entity or official.
Any obligations or expenditures of a recipient or subrecipient that are impermissible under this condition shall be unallowable costs for purposes of this award.
Rules of Construction. For purposes of this condition, 11program or activity" means what it means under section 606 of title VI of the Civil Rights Act of 1964 (42 U.S.C. 2000d-4a).
Pursuant to 8 U.S.C. 1551 note, references to the Immigration and Naturalization Service in 8 U.S.C. 1373 are to be read, as a legal matter, as references to particular components of the U.S. Department of Homeland Security.
Should any provision of a condition of this award be held to be invalid or unenforceable by its terms, then that provision shall first be applied with a limited construction so as to give it the maximum effect permitted by law (to any person or circumstance) under this award. Should it be held, instead, that a condition (or a provision thereof) is of utter invalidity or unenforceability, such condition (or such provision) shall be deemed severable from this award.
Any questions about the meaning or scope of this condition should be directed, prior to acceptance of this award, to the Office of Community Oriented Policing Services Legal Division at 202-514-3750.

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Appendix E: Appendix II to Part 200-Contract Provisions for NonFederal Entity Contracts Under Federal Awards
In addition to other provisions required by the Federal agency or non-Federal entity, all contracts made by the non-Federal entity under the Federal award must contain provisions covering the following, as applicable.
(A) Contracts for more than the simplified acquisition threshold currently set at $150,000, which is the inflation adjusted amount determined by the Civilian Agency Acquisition Council and the Defense Acquisition Regulations Council (Councils) as authorized by 41 U.S.C. 1908, must address administrative, contractual, or legal remedies in instances where contractors violate or breach contract terms, and provide for such sanctions and penalties as appropriate.
(B) All contracts in excess of $10,000 must address termination for cause and for convenience by the non-Federal entity including the manner by which it will be effected and the basis for settlement.
(C) Equal Employment Opportunity. Except as otherwise provided under 41 CFR Part 60, all contracts that meet the definition of "federally assisted construction contract" in 41 CFR Part 60-1.3 must include the equal opportunity clause provided under 41 CFR 60-1.4(b), in accordance with Executive Order 11246, "Equal Employment Opportunity" (30 FR 12319, 12935, 3 CFR Part, 1964-1965 Comp., R· 339), as amended by Executive Order 11375, "Amending Executive Order 11246 Relating to Equal Employment Opportunity," and implementing regulations at 41 CFR part 60, "Office of Federal Contract Compliance Programs, Equal Employment Opportunity, Department of Labor."
(D) Davis-Bacon Act, as amended (40 U.S.C. 3141-3148). When required by Federal program legislation, all prime construction contracts in excess of $2,000 awarded by non-Federal entities must include a provision for compliance with the Davis-Bacon Act (40 U.S.C. 3141-3144, and 3146-3148) as supplemented by Department of Labor regulations (29 CFR Part 5, "Labor Standards Provisions Applicable to Contracts Covering Federally Financed and Assisted Construction"). In accordance with the statute, contractors must be required to pay wages to laborers and mechanics at a rate not less than the prevailing wages specified in a wage determination made by the Secretary of Labor. In addition, contractors must be required to pay wages not less than once a week. The nonFederal entity must place a copy of the current prevailing wage determination issued by the Department of Labor in each solicitation. The decision to award a contract or subcontract must be conditioned upon the acceptance of the wage determination. The non-Federal entity must report all suspected or reported violations to the Federal awarding agency. The contracts must also include a provision for compliance with the Copeland "Anti-Kickback" Act (40 U.S.C. 3145), as supplemented by Department of Labor regulations (29 CFR Part 3, "Contractors and Subcontractors on Public Building or Public Work Financed in Whole or in Part by Loans or Grants from the United States"). The Act provides that each contractor or sub recipient must be prohibited from inducing, by any means, any person employed in the construction, completion, or repair of public work, to give up any part of the compensation to which he or she is otherwise entitled. The non-Federal entity must report all suspected or reported violations to the Federal awarding agency.
(El Contract Work Hours and Safety Standards Act (40 U.S.C. 3701-3708). Where applicable, all contracts awarded by the non-Federal entity in excess of $100,000 that involve the employment of mechanics or laborers must include a provision for compliance with 40 U.S.C. 3702 and 3704, as supplemented by Department of Labor regulations (29 CFR Part 5). Under 40 U.S.C. 3702 of the Act, each contractor must be required to compute the wages of every mechanic and laborer on the basis of a standard work week of 40 hours. Work in excess of the

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standard work week is permissible provided that the worker is compensated at a rate of not less than one and a half times the basic rate of pay for all hours worked in excess of 40 hours in the work week. The requirements of 40 U.S.C. 3704 are applicable to construction work and provide that no laborer or mechanic must be required to work in surroundings or under working conditions which are unsanitary, hazardous or dangerous. These requirements do not apply to the purchases of supplies or materials or articles ordinarily available on the open market, or contracts for transportation or transmission of intelligence.
(F) Rights to Inventions Made Under a Contract or Agreement. If the Federal award meets the definition of "funding agreement" under 37 CFR §401.2 (a) and the recipient or subrecipient wishes to enter into a contract with a small business firm or nonprofit organization regarding the substitution of parties, assignment or performance of experimental, developmental, or research work under that "funding agreement/ the recipient or subrecipient must comply with the requirements of 37 CFR Part 401, "Rights to Inventions Made by Nonprofit Organizations and Small Business Firms Under Government Grants, Contracts and Cooperative Agreements," and any implementing regulations issued by the awarding agency.
(G) Clean Air Act (42 U.S.C. 7401-7671q.) and the Federal Water Pollution Control Act (33 U.S.C. 1251-1387), as amended-Contracts and subgrants of amounts in excess of $150,000 must contain a provision that requires the non-Federal award to agree to comply with all applicable standards, orders or regulations issued pursuant to the Clean Air Act (42 U.S.C. 7401-7671q) and the Federal Water Pollution Control Act as amended (33 U.S.C. 12511387). Violations must be reported to the Federal awarding agency and the Regional Office of the Environmental Protection Agency (EPA).
.(H) Debarment and Suspension (Executive Orders 12549 and 12689)-A contract award (see 2 CFR 180.220) must not be made to parties listed on the government-wide exclusions in the System for Award Management (SAM), in accordance with the 0MB guidelines at 2 CFR 180 that implement Executive Orders 12549 (3 CFR part 1986 Comp., p. 189) and 12689 (3 CFR part 1989 Comp., p. 235), "Debarment and Suspension." SAM Exclusions contains the names of parties debarred, suspended, or otherwise excluded by agencies, as well as parties declared ineligible under statutory or regulatory authority other than Executive Order 12549.
(I) Byrd Anti-Lobbying Amendment (31 U.S.C.1352)-Contractors that apply or bid for an award exceeding $100,000 must file the required certification. Each tier certifies to the tier above that it will not and has not used Federal appropriated funds to pay any person or organization for influencing or attempting to influence an officer or employee of any agency, a member of Congress, officer or employee of Congress, or an employee of a member of Congress in connection with obtaining any Federal contract or any other award covered by 31 U.S.C. 1352. Each tier must also disclose any lobbying with non-Federal funds that takes place in connection with obtaining any Federal award. Such disclosures are forwarded from tier to tier up to the non-Federal award.
(J) See §200.322 Procurement of recovered materials.
[78 FR 78608, Dec. 26, 2013, as amended at 79 FR 75888, Dec. 19, 2014]

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Appendix F: Appendix XII to Part 200-Award Term and Condition for Recipient Integrity and Performance Matters
General Reporting Requirement
If the total value of your currently active grants, cooperative agreements, and procurement contracts from all Federal awarding agencies exceeds $10,000,000 for any period of time during the period of performance of this Federal award, then you as the recipient during that period of time must maintain the currency of information reported to the System for Award Management (SAM) that is made available in the designated integrity and performance system (currently the Federal Awardee Performance and Integrity Information System (FAPIIS)) about civil, criminal, or administrative proceedings described in paragraph 2 of this award term and condition. This is a statutory requirement under section 872 of Public Law 110-417, as amended (41 U.S.C. 2313). As required by section 3010 of Public Law 111-212, all information posted in the designated integrity and performance system on or after April 15, 2011, except past performance reviews required for Federal procurement contracts, will be publicly available.
Proceedings About Which You Must Report
Submit the information required about each proceeding that: a. Is in connection with the award or performance of a grant, cooperative agreement, or procurement contract from the Federal Government; b. Reached its final disposition during the most recent five year period; and c. Is one of the following: (1) A criminal proceeding that resulted in a conviction, as defined in paragraph 5 of this award term and condition; (2) A civil proceeding that resulted in a finding of fault and liability and payment of a monetary fine, penalty, reimbursement, restitution, or damages of $5,000 or more; (3) An administrative proceeding, as defined in paragraph 5. of this award term and condition, that resulted in a finding of fault and liability and your payment of either a monetary fine or penalty of $5,000 or more or reimbursement, restitution, or damages in excess of $100,000;
or
(4) Any other criminal, civil, or administrative proceeding if: (i) It could have led to an outcome described in paragraph 2.c.(l), (2), or (3) of this award term and condition; (ii) It had a different disposition arrived at by consent or compromise with an acknowledgment of fault on your part; and (iii) The requirement in this award term and condition to disclose information about the proceeding does not conflict with applicable laws and regulations.

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Reporting Procedures
Enter in the SAM Entity Management area the information that SAM requires about each proceeding described in paragraph 2 of this award term and condition. You do not need to submit the information a second time under assistance awards that you received if you already provided the information through SAM because you were required to do so under Federal procurement contracts that you were awarded.
Reporting Frequency
During any period of time when you are subject to the requirement in paragraph 1 of this award term and condition, you must report proceedings information through SAM for the most recent five year period, either to report new information about any proceeding(s) that you have not reported previously or affirm that there is no new information to report. Recipients that have Federal contract, grant, and cooperative agreement awards with a cumulative total value greater than $10,000,000 must disclose semiannually any information about the criminal, civil, and administrative proceedings.
Definitions
For purposes of this award term and condition: a. Administrative proceeding means a non-judicial process that is adjudicatory in nature in order to make a determination of fault or liability (e.g., Securities and Exchange Commission Administrative proceedings, Civilian Board of Contract Appeals proceedings, and Armed Services Board of Contract Appeals proceedings). This includes proceedings at the Federal and State level but only in connection with performance of a Federal contract or grant. It does not include audits, site visits, corrective plans, or Inspection of deliverables. b. Conviction, for purposes of this award term and condition, means a judgment or conviction of a criminal offense by any court of competent jurisdiction, whether entered upon a verdict or a plea, and includes a conviction entered upon a plea of nolo contendere. c. Total value of currently active grants, cooperative agreements, and procurement contracts includes(1) Only the Federal share of the funding under any Federal award with a recipient cost share or match; and (2) The value of all expected funding increments under a Federal award and options, even if not yet exercised. d. [Reserved]
[80 FR 43310, July 22, 2015]

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Appendix G: 41 U.S.C. § 4712 - Pilot program for enhancement of contractor protection from reprisal for disclosure of certain information
Prohibition of reprisals
(1) In general. An employee of a contractor, subcontractor, or recipient may not be discharged, demoted, or otherwise discriminated against as a reprisal for disclosing to a person or body described in paragraph (2) information that the employee reasonably believes is evidence of gross mismanagement of a Federal contract or grant, a gross waste of Federal funds, an abuse of authority relating to a F.ederal contract or grant, a substantial and specific danger to public health or safety, or a violation of law, rule, or regulation related to a Federal contract (including the competition for or negotiation of a contract) or grant.
(2) Persons and bodies covered. The persons and bodies described in this paragraph are the persons and bodies as follows:
(A) A Member of Congress or a representative of a committee of Congress.
(B) An Inspector General.
(C) The Government Accountability Office.
(D) A Federal employee responsible for contract or award oversight or management at the relevant agency.
(E) An authorized official of the Department of Justice or other law enforcement agency.
(F) A court or grand jury.
(G) A management official or other employee of the contractor, subcontractor, or recipient who has the responsibility to investigate, discover, or address misconduct.
(3) Rules of construction. For the purposes of paragraph (1)
(A) an employee who initiates or provides evidence of contractor, subcontractor, or recipient misconduct in any judicial or administrative proceeding relating to waste, fraud, or abuse on a Federal contract or award shall be deemed to have made a disclosure covered by such paragraph; and
(B) a reprisal described in paragraph (1) is prohibited even if it is undertaken at the request of an executive branch official, unless the request takes the form of a non-discretionary directive and is within the authority of the executive branch official making the request.
Investigation of complaints
(1) Submission of complaint. A person who believes that the person has been subjected to a reprisal prohibited by subsection (a) may submit a complaint to the Inspector General of the executive agency involved. Unless the Inspector General determines that the complaint is frivolous, fails to allege a violation of the prohibition in subsection (a), or has previously been addressed In another Federal or State judicial or administrative proceeding

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initiated by the complainant, the Inspector General shall investigate the complaint and, upon completion of such investigation, submit a report of the findings of the investigation to the person, the contractor or recipient concerned, and the head of the agency.
(2) Inspector General action.
(A) Determination or submission of report on findings. Except as provided under subparagraph (B), the Inspector General shall make a determination that a complaint is frivolous, fails to allege a violation of the prohibition in subsection (a), or has previously been addressed in another Federal or State judicial or administrative proceeding initiated by the complainant or submit a report under paragraph (1) within 180 days after receiving the complaint.
(B) Extension oftime. If the Inspector General is unable to complete an investigation in time to submit a report within the 180-day period specified in subparagraph (A) and the person submitting the complaint agrees to an extension of time, the Inspector General shall submit a report under paragraph (1) within such additional period of time, up to 180 days, as shall be agreed upon between the Inspector General and the person submitting the complaint.
(3) Prohibition on disclosure. The Inspector General may not respond to any inquiry or disclose any information from or about any person alleging the reprisal, except to the extent that such response or disclosure is
(A) made with the consent of the person alleging the reprisal;
(B) made in accordance with the provisions of section 552a of title 5 or as required by any other applicable Federal law; or
(C) necessary to conduct an investigation of the alleged reprisal.
(4) Time limitation. A complaint may not be brought under this subsection more than three years after the date on which the alleged reprisal took place.
Remedy and enforcement authority
(1) In general. Not later than 30 days after receiving an Inspector General report pursuant to subsection (b), the head of the executive agency concerned shall determine whether there is sufficient basis to conclude that the contractor or recipient concerned has subjected the complainant to a reprisal prohibited by subsection (a) and shall either issue an order denying relief or shall take one or more of the following actions:
(A) Order the contractor or recipient to take affirmative action to abate the reprisal.
(B) Order the contractor or recipient to reinstate the person to the position that the person held before the reprisal, together with compensatory damages (including back pay), employment benefits, and other terms and conditions of employment that would apply to the person in that position if the reprisal had not been taken.
(C) Order the contractor or recipient to pay the complainant an amount equal to the aggregate amount of all costs and expenses (including attorneys' fees and expert witnesses' fees) that were reasonably incurred by the complainant for, or in connection with, bringing the complaint regarding the reprisal, as determined by the head of the executive age.ncy.

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(2) Exhaustion of remedies. If the head of an executive agency issues an order denying relief under paragraph (1) or has not issued an order within 210 days after the submission of a complaint under subsection (b), or in the case of an extension of time under paragraph (b)(2)(B), not later than 30 days after the expiration of the extension of time, and there is no showing that such delay is due to the bad faith of the complainant, the complainant shall be deemed to have exhausted all administrative remedies with respect to the complaint, and the complainant may bring a de novo action at law or equity against the contractdr or recipient to seek compensatory damages and other relief available under this section in the appropriate district court of the United States, which shall have jurisdiction over such an action without regard to the amount in controversy. Such an action shall, at the request of either party to the action, be tried by the court with a jury. An action under this paragraph may not be brought more than two years after the date on which remedies are deemed to have been exhausted.
(3) Admissibility of evidence. An Inspector General determination and an agency head order denying relief under paragraph (2) shall be admissible in evidence in any de novo action at law or equity brought pursuant to this
subsection.
(4) Enforcement of orders. Whenever a person fails to comply with an order issued under paragraph (1), the head of the executive agency concerned shall file an action for enforcement of such order in the United States district court for a district in which the reprisal was found to have occurred. In any action brought under this paragraph, the court may grant appropriate relief, including injunctive relief, compensatory and exemplary damages, and attorney fees and costs. The person upon whose behalf an order was issued may also file such an action or join in an action filed by the head of the executive agency.
(5) Judicial review. Any person adversely affected or aggrieved by an order issued under paragraph (1) may obtain review of the order's conformance with thi, subsection, and any regulations issued to carry out this section, in the United States court of appeals for a circuit in which the reprisal is alleged in the order to have occurred. No petition seeking such review may be filed more than 60 days after issuance of the order by the head of the executive agency. Review shall conform to chapter 7 of title 5. Filing such an appeal shall not act'to stay the enforcement of the order of the head of an executive agency, unless a stay is specifically entered by the court.
(6) Burdens of proof. The legal burdens of proof specified in section 1221(e) of title 5 shall be controlling for the purposes of any investigation conducted by an Inspector General, decision by the head of an executive agency, or judicial or administrative proceeding to determine whether discrimination prohibited under this section has occurred.
(7) Rights and remedies not waivable. The rights and remedies provided for in this section may not be waived by any agreement, policy, form, or condition of employment.
Notification of employees
The head of each executive agency shall ensure that contractors, subcontractors, and recipients of the agency inform their employees in writing of the rights and remedies provided under this section, in the predominant native language of the workforce.
Construction
N'othing in this section may be construed to authorize the discharge of, demotion of, or discrimination against an employee for a disclosure other than a disclosure protected by subsection (a) or to modify or derogate from a right or remedy otherwise available to the employee.

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Exceptions
(1) This section shall not apply to any element of the intelligence community, as defined in section 3(4) of the National Security Act of 1947 (50 U.S.C. 401a(4)).
(2) This section shall not apply to any disclosure made by an employee of a contractor, subcontractor, or recipient of an element of the intelligence community if such disclosure-(A) relates to an activity of an element of the intelligence community; or
(B) was discovered during contract, subcontract, or recipient services provided to an element of the intelligence community.
Definitions
In this section: (1) The term "abuse of authority" means an arbitrary and capricious exercise of authority that is inconsistent with the mission of the executive agency concerned or the successful performance of a contract or award of such agency. '(2) The term "Inspector General" means an Inspector General appointed under the Inspector General Act of 1978 and any Inspector General that receives funding from, or has oversight over contracts or awards funded, for or on behalf of, the executive agency concerned.
Construction
Nothing in this section, or the amendments made by this section, shall be construed to provide any rights to disclose classified information not otherwise provided by law.
Duration of section
This section shall be in effect for the four-year period beginning on the date that is 180 days after the date the enactment of this section.

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Appendix H. Intergovernmental review process, points of contact by
state
Executive Order 12372 requires applicants from state and local units of government or other organizations or individ~als providing service within a state to submit a copy of the application to the state single point of contact (SPOC), if one exists and if this program has been selected for review by the state. Before the application due date, you must contact your state SPOC to find out if this program has been selected for review and comply with the state's process under Executive Order 12372. The Catalog of Federal Domestic Assistance reference for this program is number 16.710, "Public Safety and Community Policing Grants."
A current list of state SPOCs is listed at ht!Rs:[[yvJ,11yv.arc!![Y.es,gQy[federal-reglster/codification/ex_ecutiveorder[!2372.html. States that are not listed have chosen not to participate in the intergovernmental review
process and therefore do not have an SPOC.

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Appendix I. Federal Funding Accountability and Transparency Act {FFATA)-Reporting subaward and executive compensation award term
Appendix A to Part 170-Award term
I. Reporting Subawards and Executive Compensation.
a. Reporting of first-tier subawards.
1. Applicability. Unless you are exempt as provided in paragraph d. of this award term, you must report each action that obligates $25,000 or more in Federal funds that does not include Recovery funds (as defined in section 1512(a)(2) of the American Recovery and Reinvestment Act of 2009, Pub. L. 111-5) for a subaward to an entity (see definitions in paragraph e. of this award term).
2. Where and when to report.
i. You must report each obligating action described in paragraph a.1. of this award term to
http:/LY,t.ww. fsrs._gov.
ii. For subaward information, report no later than the end of the month following the month in which the obligation was made. (For example, if the obligation was made on November 7, 2010, the obligation must be reported by no later than December 31, 2010.)
3. What to report. You must report the information about each obligating action that the submission instructions
posted at ht!J)://www.fsrs.gov specify.
b. Reporting Total Compensation of Recipient Executives.
1. Applicability and what to report. You must report total compensation for each of your five most highly compensated executives for the preceding completed fiscal year, if-
i. the total Federal funding authorized to date under this award is $25,000 or more;
ii. in the preceding fiscal year, you received-
(A) 80 percent or more of your annual gross revenues from Federal procurement contracts (and subcontracts) and Federal financial assistance subject to the Transparency Act, as defined at 2 CFR 170.320 (and subawards); and
(B) $25,000,000 or more in annual gross revenues from Federal procurement contracts (and subcontracts) and Federal financial assistance subject to the Transparency Act, as defined at 2 CFR 170.320 (and subawards); and
iii. The public does not have access to information about the compensation of the executives through periodic reports filed under section 13(a) or 15(d) of the Securities Exchange Act of 1934 (15 U.S.C. 78m(a), 78o(d)) or section 6104 of the Internal Revenue Code of 1986. (To determine if the public has access to the compensation information, see the U.S. Security and Exchange
Commission total compensation filings at httpjil!,,ww.s~ov/answers/ftxecol!1Jl,htm.)

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2. Where and when to report. You must report executive total compensation described in paragraph b.1. of this award term:
i. As part of your registration profile at !illJ!s:ll.www.sam.ggy.
ii. By the end of the month following the month in which this award is made, and annually thereafter.
c. Reporting of Total Compensation of Subrecipient Executives.
1. Applicability and what to report. Unless you are exempt as provided in paragraph d. of this award term, for each first-tier sub recipient under this award, you shall report the names and total compensation of each of the sub recipient's five most highly compensated executives for the subrecipient's preceding completed fiscal year, if-
i. in the subrecipient's preceding fiscal year, the subrecipient received-
(A) 80 percent or more of its annual gross revenues from Federal procurement contracts (and subcontracts) and Federal financial assistance subject to the Transparency Act, as defined at 2 CFR 170.320 (and subawards); and
(B) $25,000(000 or more in annual gross revenues from Federal procurement contracts (and subcontracts), and Federal financial assistance subject to the Transparency Act (and subawards); and
ii. The public does not have access to information about the compensation of the executives through periodic reports filed under sectioi113(a) or 15(d) of the Securities Exchange Act of 1934 (15 U.S.C. 78m(a), 78o(d)) or section 6104 of the Internal Revenue Code of 1986. (To determine if the public has access to the compensation information, see the U.S. Security and Exchange
Commission total compensation filings at b!tJd/www.sg~,1!ov/answemexecoJ:!1_p.htm.)
2. Where and when to report. You must report subrecipient executive total compensation described in paragraph c.1. of this award term:
i. To the recipient.
ii. By the end of the month following the month during which you make the subaward. For example, if a subaward is obligated on any date during the month of October of a given year (i.e., between October 1 and 31), you must report any req.uired compensation information of the subrecipient by November 30 of that year.
d. Exemptions
If, in the previous tax year, you had gross income, from all sources, under $300,000, you are exempt from the requirements to report:
i. Subawards,
and
ii. The total compensation of the five most highly compensated executives of any subrecipient.

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e. Definitions. For purposes of this award term:

1. Entity means all of the following, as defined in 2 CFR part 25:

i. A Governmental organization, which is a State, local government, or Indian tribe;

ii. A foreign public entity;

iii. A domestic or foreign nonprofit organization;

iv. A domestic or foreign for-profit organization;

v. A Federal agency, but only as a subrecipient under an award or subaward to a non-Federal entity.

2. Executive means officers, managing partners, or any other employees in management positions.

3. 5ubaward:

i. This term means a legal instrument to provide support for the performance of any portion of the substantive project or program for which you received this award and that you as the recipient award to an eligible subrecipient.
ii. The term does not include your procurement of property and services needed to carry out the project or program (for further explanation, see Sec._ .210 of the attachment to 0MB Circular A-133, "Audits of States, Local Governments, and Non-Profit Organizations").

iii. A subaward may be provided through any legal agreement, including an agreement that you or a subrecipient considers a contract.

4. Sub recipient means an entity that:

i. Receives a subaward from you (the recipient) under this award; and

ii. Is accountable to you for the use of the Federal funds provided by the subaward.

5. Total compensation means the cash and noncash dollar value earned by the executive during the recipient's or subrecipient's preceding fiscal year and includes the following (for more information see 17 CFR 229.402(c)(2)):

i. Salary and bonus.

ii. Awards of stock, stock options, and stock appreciation rights. Use the dollar amount recognized for financial statement reporting purposes with respect to the fiscal year in accordance with the Statement of Financial Accounting Standards No. 123 (Revised 2004) (FAS 123R), Shared Based Payments.

iii. Earnings for services under non-equity incentive plans. This does not include group life, health, hospitalization or medical reimbursement plans that do not discriminate in favor of executives, and are available generally to all salaried employees.

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iv. Change in pension value. This is the change in present value of defined benefit and actuarial pension plans. v. Above-market earnings on deferred compensation which is not tax-qualified. vi. Other compensation, if the aggregate value of all such other compensation (e.g. severance, termination payments, value of life insurance paid on behalf of the employee, perquisites or property) for the executive exceeds $10,000.

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Appendix J. System for Award Management (SAM) and universal identifier award term
Appendix A to Part 25-Award Term
I. System for Aw.ard Management and Universal Identifier Requirements
A. Requirement for System for Award Management Unless you are exempted from this requirement under 2 CFR 25.110, you as the recipient must maintain the currency of your information in the SAM until you submit the final financial report required under this award or receive the final payment, whichever is later. This requires that you review and update the information at least annually after the initial registration, and more frequently if required by changes in your information or another award term. B. Requirement for unique entity identifier If you are authorized to make subawards under this award, you: 1. Must notify potential subrecipients that no entity (see definition in paragraph C of this award term) may receive a subaward from you unless the entity has provided its unique entity identifier to you. 2. May not make a subaward to an entity unless the entity has provided its unique entity identifier to you.
C. Definitions For purposes of this award term: 1. System for Award Management (SAM) means the Federal repository into which an entity must provide information required for the conduct of business as a recipient. Additional information about registration procedures may be found at the SAM Internet site (currently at www.~am.g9~). 2. Unique entity identifier means the identifier required for SAM registration to uniquely identify business entities. 3. Entity, as it is used in this award term, means all of the following, as defined at 2 CFR part 25, subpart C: a. A Governmental organization, which is a State, local government, or Indian Tribe; b. A foreign public entity; c. A domestic or foreign nonprofit organization; d. A domestic or foreign for-profit organization; and e. A Federal agency, but only as a subrecipient under an award or subaward to a non-Federal entity.

Case 3:17-cv-04701-WHO Document 11 Filed 10/13/17 Page 304 of 310
2017 COPS Office Anti-Heroin Task Farce (AHTF} Program Application Gulde
4. Subaward: a. This term means a legal Instrument to provide support for the performance of any portion of the substantive project or program for which you received this award and that you as the recipient award to an eligible subrecipient. b. The term does not include your procurement of property and services needed to carry out the project or program (for further explanation, see 2 CFR 200.330). c. A subaward niay be provided through any legal agreement, including an agreement that you consider a contract. 5. Subrecipient means an entity that: a. Receives a subaward from you under this award; and b. is accountable to you for the use of the Federal funds provided by the subaward.

Case 3:17-cv-04701-WHO Document 11 Filed 10/13/17 Page 305 of 310
2017 COPS Office Anti-Heroin Task Force (AHTF) Program Application Guide
Appendix I<. Step-by-step instructions for two-part application submission process
FY 2017 COPS Office grant online application procedures
Note: If your agency has previously applied for grants using Grants.gov, and you already have an account set up with your username and password, please skip Step 1 and proceed to Step 2. For additional instructions on how to register with Grants.gov please visit ht~_..,wW.Jl@l)ts.gqy/we~/grantsl;ml!]lcant_~QrKanizatlo_n: registration.html.
Step 1
Please click the link below for details on how to register with Grants.gov.
Steps for registering with Grants.gov b!!J:!s://www.grants.gpv/nell?Lbtml/he1P/ index.htm?callln_g_/\l!P:ecustom#t=Get Started%2FGet Started.him.
Step 2. Submitting a COPS Office grant application using Grants.gov
1. Log in to w~w.gran_t~. 2. Scroll to the center of the page and click the "Apply for Grants" link in the center of the page. 3. Click on the "Download a Grant Application Package" link. 4. Scroll down to the "Funding Opportunity Number" box and enter COPS-AHTF-Application-2017. Then click
on 11Download Package.11 5. Click the "Download" link at the bottom right of the page under the "Instructions & Application" heading. 6. To view the SF-424 instructions, click the "Download Application Instructions" link. 7. To start the application, click "Download Application Package," which is the second link. 8. Enter an application filing name of your choice (e.g., agency legal name and program type for which you
are applying) into the "Application File Name" text box, which is highlighted yellow with a red border. 9. In the "Mandatory Documents" field, do the following:
i. Select the "Application for Federal Assistance (SF-424)" document then click on the "Move Form to Complete" button so that the form appears under the "Mandatory Documents for Submission" field.
ii. Select "COPS Short Application Attachment to SF-424," then click the "Move Form to Complete" button so that the form appears under the "Mandatory Documents for Submission" field.
10. Select "Application for Federal Assistance" and click on the "Open Form" button. Be sure to fill in all required fields on the displayed documents, which are highlighted yellow with red borders. Last, select the program to which you are applying and enter or re-enter a correct ORI.
11. Click the "Save" button at the very top of the document. 12. In the "Save As" dialogue b_ox, do the following:
a. Select a location that is easy to find.within your computer (e.g., Desktop or My Documents). b. Select the "Save" button to save the file to your selected location on your computer.
** Note: You will be required to save this document twice. You may either save it in the same location, which will
overwrite the first one, or save it in a different location for redundancy.

Case 3:17-cv-04701-WHO Document 11 Filed 10/13/17 Page 306 of 310
2017 COPS Office Antl~Heroln Task Force {AHTF} Program Application Gulde
13. Click on the "Save & Submit" button at the top of the document. 14. In the "Save As" dialogue box, do the following:
a. Select a location that is easy to find within your computer (e.g., Desktop or My Documents).
b. Select the "Save As" button to save the file to your selected location on your computer.
15. Enter your username and password for the authorized organizational representative (AOR). This is set up while registering with Grants.gov.
16. Wait until "Confirmation Page" appears to close the document. Take note of the grant ID number provided by Grants.gov for your file.
17. After the SF-424 has been successfully submitted, you will receive three e-mails from Grants.gov:
a. One e-mail thanking the applicant for submission b. A second e-mail confirming Grants.gov validation
c. A third e-mail stating the application was received by the agency
18. Within one business day, you will receive one of two e-mails from the COPS Office: a. An e-mail stating your application passed the COPS Office validation and providing a link to the COPS Office Application Program System.
Or
iii. b.An e-mail stating that the COPS Office validation failed and that the issues must be corrected and resubmitted.
Correcting COPS Office validation errors
1. Open the application that was saved In step 12 above. 2. Edit fields that had errors. 3. Select the "Save & Submit" button. 4. In the "Save As" dialogue box, do the following:
a. Select a location that is easy to find within your computer (e.g., Desktop or My Documents).
b. Select the "Save" button to save the file to your selected location on your computer. Overwrite the existing application or save as a different file name on your computer.
5. Enter your username and password for the AOR account. 6. Wait until "Confirmation Page" appears to close the document.
Take note of the new grant ID number provided by Grants.gov for your file. 7. After the SF-424 has been successfully submitted, you will receive three e-mails from Grants.gov.
a. One e-mail thanking the applicant for submission.
b. A second e-mail confirming Grants.gov validation.
c. A third e-mail stating the application was received by the agency.
8. Within one business day, you will receive one of two e-mails from the COPS Office: iv. a. An e-mail stating your application passed the COPS Office validation and providing a link to the COPS Office Application Program System.
Or
b. An e-mail stating that the COPS Office validation failed and that the issues must be corrected and resubmitted.

Case 3:17-cv-04701-WHO Document 11 Filed 10/13/17 Page 307 of 310
2017 COPS Office Anti-Heroin Task Force {AHTF) Program Application Gulde
Paperwork Reduction Act Notice
The public reporting burden for this collection of information Is estimated to be up to 11.3 hours per response, depending upon the COPS Office program being applied for, which includes time for reviewing instructions. Send comments regarding this burden estimate or any other aspects of the collection of this information, including suggestions for reducing this burden, to the Office of Community Oriented Policing Services, U.S. Department of Justice, 145 N Street NE, Washington, DC 20530; and to the Public Use Reports Project, Office of Information and Regulatory Affairs, Office of Management and Budget, Washington, DC 20503.
You are not required to respond to this collection of information unless it displays a valid 0MB control number. The 0MB control number for this application is 1103-0098, and the expiration date is 05/31/2020.

Case 3:17-cv-04701-WHO Document 11 Filed 10/13/17 Page 308 of 310
2017 COPS Office Anti-Heroin Task Force (AHTF} Program Application Guide
About the COPS Office
The Office of Community Oriented Policing Services (COPS Office} is the component of the U.S. Department of Justice responsible for advancing the practice of community policing by the nation's state, local, territory, and tribal law enforcement agencies through information and award resources.
Community policing is a philosophy that promotes organizational strategies that support the systematic use of partnerships and problem-solving techniques, to proactively address the immediate conditions that give rise to public safety issues such as crime, social disorder, and fear of crime.
Rather than simply responding to crimes once they have been committed, community policing concentrates on preventing crime and eliminating the atmosphere of fear it creates. Earning the trust of the community and making those individuals stakeholders in their own safety enables law enforcement to better understand and address both the needs of the community and the factors that contribute to crime.
The COPS Office awards funding to state, local, territory, and tribal law enforcement agencies to hire and train community policing professionals, acquire and deploy cutting-edge crime fighting technologies, and develop and test innovative policing strategies. COPS Office funding also provides training and technical assistance to community members and local government leaders and all levels of law enforcement. The COPS Office has produced and compiled a broad range of information resources that can help law enforcement better address specific crime and operational issues, and help community leaders better understand how to work cooperatively with their law enforcement agency to reduce crime.
• Since 1994, the COPS Office has invested more than $14 billion to add community policing officers to the nation's streets, enhance crime fighting technology, support crime prevention initiatives, and provide training and technical assistance to help advance community policing.
• To date, the COPS Office has funded more than 129,000 additional officers to over 13,000 of the nation's 18,000 law enforcement agencies across the country in small and large jurisdictions alike.
• Nearly 700,000 law enforcement personnel, community_ members, and government leaders have been trained through COPS Office-funded training organizations.
• To date, the COPS Office has distributed more than 2 million topic-specific publications, training curricula, white papers, and resource CDs.
COPS Office resources, covering a wide breadth of community policing topics-from school and campus safety to gang violence-are available, at no cost, through its on line Resource Center at J!IIWW.cops.usdoi,KQY. This easy-tonavigate website is also the grant application portal, providing access to on line application forms.

Case 3:17-cv-04701-WHO Document 11 Filed 10/13/17 Page 309 of 310
U.S. Department of Justice Office of Community Oriented Policing Services 145 N Street NE Washington, DC 20530 To obtain details about COPS Office programs, call the COPS Office Response Center at 800-421-6770. Visit the COPS Office online:.www.copJi,USdol,gov Published May 2017

Case 3:17-cv-04701-WHO Document 11 Filed 10/13/17 Page 310 of 310

CERTIFICATE OF SERVICE

Case Name: State v. Sessions

No. 17-cv-4701

I hereby certify that on October 13, 2017, I electronically filed the following documents with the Clerk of the Court by using the CM/ECF system:
FIRST AMENDED COMPLAINT FOR DECLARATORY AND INJUNCTIVE RELIEF
Participants in the case who are registered CM/ECF users will be served by the CM/ECF system.
I am employed in the Office of the Attorney General, which is the office of a member of the California State Bar at which member's direction this service is made. I am 18 years of age or older and not a party to this matter. I am familiar with the business practice at the Office of the Attorney General for collection and processing of correspondence for mailing with the United States Postal Service. In accordance with that practice, correspondence placed in the internal mail collection system at the Office of the Attorney General is deposited with the United States Postal Service with postage thereon fully prepaid that same day in the ordinary course of business.
I further certify that some of the participants in the case are not registered CM/ECF users. On October 13, 2017, I sent by electronic mail to the following non-CM/ECF participant:

W. Scott Simpson U.S. Department of Justice Room 7210 Post Office Box 883 Washington, VA 20044 Email Address: ssimpson@civ.usdoj.gov

I declare under penalty of perjury under the laws of the State of California the foregoing is true and correct and that this declaration was executed on August 25, 2017, at Los Angeles, California.

Haiarpi Petrosyan Declarant
LA2017506536
Certificate of Service Amended Complaint.docx

/s/Haiarpi Petrosyan Signature

 
 Case 3:17-cv-04701-WHO Document 17 Filed 10/31/17 Page 1 of 33

XAVI ER BECERRA Attorney General of California
2 ANG ELA SIERRA Senior Assistant Attorney General
3 SATOSHI YANAI Supervising Deputy Attorney General
4 SARAH E. BELTON
LISA C. EHRLICH 5 LEE SHERMAN (SBN 272271)
Deputy Attorneys General 6 300 S. Spring St., Suite 1702
Los Angeles, CA 90013 7 Telephone: (213) 269-6404
Fax: (213) 879-7605 8 E-mail: Lee.Shcrrnan@doj .ca.gov
Attorneysfor PlaintiffState ofCalifornia
9

10

IN THE UNITED STATES DISTRICT COURT

11

FOR THE NORTHERN DISTRICT OF CALIFORNIA

12

SAN FRANCISCO DIVISION

13

14 STATE OF CALIFORNIA, ex rei, XAVIER Case No. 17-cv-4701

15 BECERRA, in his official capacity as

Attorney General of the State of California,

16
17
v.
18

Plaintiff,

PLAINTIFF STATE OF CALIFORNIA'S NOTICE OF MOTION AND MOTION FOR PRELIMINARY INJUNCTION; MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT THEREOF

19 JEFFERSON B. SESSIONS, in his official capacity as Attorney General of the United Date:

December 6, 20I 7

20 States; ALAN R. HANSON, in his official Time:

2:00p.m.

capacity as Acting Assistant Attorney

Dept:

2

21 General; UNITED STATES

Judge:

Honorable William H. Orrick

DEPARTMENT OF JUSTICE; and DOES Trial Date: None Set

22 1-100,

Action Filed: 8114/2017

23

Defendants.

24

25

26

27

28

Plaintiff's Not. of Mot. and Motion for Preliminary Injunction; MPA in Support Thereof (17-cv-470 I)

Case 3:17-cv-04701-WHO Document 17 Filed 10/31/17 Page 2 of 33

TABLE OF CONTENTS

2

Page

3 Notice of Motion and Motion for Preliminary Injunction .............................................................. 1

4 Memorandum of Points and Authorities ......................................................................................... 1 Introduction ......... .................................. .............................................. ............................................ 1
5 Background ....................................................................................................... .............................. 4

6

A. Section 1373 and the INA ........................................................................... 4

7

B. California's Statutes ... ................ ................................................................. 5

C. The History and Purpose of JAG ......................... ,...................................... 7

8

D. Cal ifornia's Use of JAG and COPS Funds ...... ....................... .... .... ............ 9

9

E. JAG and COPS Requirements in Relation to Section 1373...................... 10

10

F. Defendants' Other Actions Threatening to Find the State in Violation of Section 1373 ......................................................................... 11

11 Legal Argument ............. ....................... .................................................... .................................... 12

12

I.

Legal Standard ...................................................................................................... 12

II. California is Likely to Succeed on Its Claims that the JAG Section 1373

13

Condition is Unlawful ........................................................................................... 13

14

A. The JAG Section 1373 Condition Violates the Spending Clause Because it is Unrelated to the Purpose of JAG ......................................... 13

15

B. Imposition of the JAG Section 1373 Condition is Arbitrary and

Capricious ............. .................................................................................. .. 14

16

III. California is Likely to Succeed in Showing that California's Statutes Do

17

Not Violate Section 1373 ...................................................................................... 15

A. Section 1373 Cannot be Lawfully Interpreted or Enforced to Reach

18

California's Confidentiality Statutes ......................................................... 15

19

1. California's Confidentiality Statutes Do Not Conflict with Section 1373 ............................................... ................................... 16

20

2. The Tenth Amendment Does Not Allow for Section 1373 to

Commandeer the State in its Control over Governmental

21

Employees and its Residents' Confidential Personal

Infonnation.................. ............................. ..................................... 17

22

B . Section 1373 Does Not Conflict with The Plain Text of the TRUTH

23

Act, and Would Constitute Unconstitutional Commandeering if it Did................................................................. ............................................ 22

24

IV. Without Court Intervention, the Section 1373 Conditions wi ll Cause the

State Imminent and Irreparable Hann ..................... .......................... .................... 23

25

V. The Balance of Hardships Favors Granting a Preliminary Injunction ... .... ........... 25

26 Conclusion ...........,............................................. .... ......................... .............................. ................ 25

27

28

Plaintifrs Not. of Mot. and Motion for Preliminary Injunction; MPA in Support Thereof ( 17-cv-470 I)

Case 3:17-cv-04701-WHO Document 17 Filed 10/31/17 Page 3 of 33

TABLE OF AUTHORITIES

2

3 CASES

4 Alfred L. Snapp & Son, Inc. v. Puerto Rico ex ref. Barez 458 U.S. 592 (1982) ........................... ..................................... ..................................................25
5

6

Am. Trucking Ass 'ns, Inc. v. City ofLos Angeles 559 F.3d 1046 (9th Cir. 2009)............................................ ... .... ..........................................23, 24

7

Ariz. Dream Act Coalition v. Brewer

8

757 F.3d 1053 (9th Cir. 2014)................. .... .... ............................. ........ ............... ........ .... ..........25

9 Arizona v. United States 567 U.S. 387 (2012) ....................... ........................... .... ............................................................13
10

11

Atascadero State Hospital v. Scanlon 473 U.S. 234 ( 1985) .................................................................................................................. 17

12 Bond v. United States

13

134 S. Ct. 2077 (201 4) ................................................................................................... ........... 17

14 Cape May Greene, Inc. v. Warren
698 F.2d 179 (3d Cir. 1983)...................................................................................................... 15 15

City ofChicago v. Sessions

16

No. 17-cv-5720, 2017 WL 4081821 (N. D. Ill. Sept. 15, 2017) ....................................21, 22,24

17 City ofNew York v. United States

18

179 F.3d 29 (2d Cir. 1999) .......... ................................................. ................................. 19, 2 1, 22

19 Cty . o_j'Santa Clara v. Trump 250 F . Supp. 3d 497 (N.D. Cal. 20 17) ............................ ...... .................... .. ............. ................. 13

20

Davis v. Mich. Dep 't. ofTreasury

21

u.s. 489

803 (1989) ................................................................... ......................................... 16, 17

22 Encino Motorcars, LLC v. Navarro

23

136 S.Ct. 2117 (2016) .............................. ........................................ ........................ .... ........ ..... 15

24 FCC v. Fox Television Stations, Inc. 556 U.S. 502 (2009) .............................. ............... ....... ............................................ .................. 14

25

PERC v. Mississippi

26

456 U.S. 742 (1982) ...................... ............................................................................................20

27 Giovani Carandola, Ltd. v. Bason

28

303 F.3d 507 (4th Cir. 2002)....... ........ ............... ........ ... .... .... ... .......................... ... ................. ...25

II

Plaintifrs Not. of Mot. and Motion for Preliminary Injunction; MPA in Support Thereof ( I 7-cv-470 1)

Case 3:17-cv-04701-WHO Document 17 Filed 10/31/17 Page 4 of 33

1

TABLE OF AUTHORITIES

(continued)

2

3 Gregory v. Ashcroft

u.s. 501

452 (1991) ...................................................... .............. ....... ........................... .... .. 17, 20

4

Kansas v. United States

5

249 F.3d 1213 (lOth Cir. 2001)..... .... ............ .... .... ....................................................................23

6 Koog v. United States

7

79 F.3d 452 (5th Cir. 1996) ................................ .... ..................... ............................... ... 18, 19, 20

-8 Massachusetts v. United States 435 U.S . 444 ( 1978) ................... ........................ ...................... ....... ... .................·................... ... 13

9

Morales v. Trans World Airlines

lO

u.s. 504 374 ( 1992) .................................... .... ..........................................................................23

ll Motor Vehicle Mfrs. Ass 'n ofthe U.S. v. State Farm Mut. Auto. Ins. Co.

12

u.s. 463

29 ( 1983) ... ... ........ ........ ............ .... .... ...................... ................................. ........ ..... 14, 15

13 Nat 'I Cable & Telecomms. Ass 'n v. Brand X Internet Servs. 545 U.S. 967 (2005) ........................ ............................... ......................................... .................. 14

14

New York v. United States

15

505 U.S. 144 (1992) ................. ... ........ .... ........ .... ................................ .... ................ 17, 18, 20,22

16 Nken v. Holder

17

556 U.S. 418 (2009) ..................................................................................................................25

18 Printz v. United States 52 1 U.S. 898 (1997) ................. ....... ......................... .......... ....... .... ... .... .... ........ .17, 18, 19, 20,22

19

Raygor v. Regents ofUniv. ofMinn.

20

534 u.s. 533 (2002) ..................................................................................................................17

21 Romero v. United States

22

883 F.Supp. 1076 (W.D. La. 1995) ... .................... ... .... ........... ... .... ....... ........ ... ........................ .19

23

South Dakota v. Dole 483 U.S . 203 (1987) .......................................... ............................. ........................................... 13

24

Steinle v. City & Cty. ofSan Francisco

25

230 F. Supp. 3d 994 (N.D. Cal. 2017) ........... .... ....... .... ....... .... ... .......................................... ....22

26 Stuller, Inc. v. Steak N Shake Enterprises, Inc. 695 F.3d 676 (7th Cir. 20 12)... ..................................................................................................24
27

28
Ill
Plaintifrs Not. of Mot. and Motion for Preliminary Injunction; MPA in Support Thercof(l7-cv-470 1)

Case 3:17-cv-04701-WHO Document 17 Filed 10/31/17 Page 5 of 33

TABLE OF AUTHORITIES
(continued) 2

3 Texas v. United States No. 15-cv-151, 2016 WL 4138632 (N.D. Tex. Aug. 4, 2016)........ .......................................... 14
4

Trump v. Int 'I Refugee Assistance Project

5

137 S.Ct. 2080 (2017) .................. .......................................... ...................................... ............. 13

6 United States v. Lopez

7

514 U.S. 549 (1995) ..................................................................................................................20

8 United States v. Morrison

u.s. 529

598 (2000) ······· ···················· ........................................................... .................... ........19

9

United States v. North Carolina

10

192 F. Supp. 3d 620 (M.D.N.C. 2016)......................................................................................24

11 Univ. ofTexas v. Camenisch

12

451 U.S. 390 (1981) .......................................................'........................................................... 12

13 Winter v. Nat. Res. Def Council, Inc. 555 U.S. 7 (2008) ....................................... ................... ........... ...................................... 12, I3, 25

14

Zadvydas v. Davis

15

533 U.S. 678 (2001) ............ ...................................................................................................... 18

16 FEDERAL STATUTES
17 5 U.S.C. § 706 ......... ........................................................................................................................ 14
18 8 U.S .C. § 11 01 ...........................................................................................................................5, 16 19 8 U.S.C. § 1367 ...........................................................................................................................5, 16 20
8 U.S.C. § 13 73 ......:.. .............................................................................................................. passim 21
8 U.S.C. § 1644 ......... ........................................... ............... ..............................................................4 22 23 34 U.S.C. §§ 10151-58 ..................................................... .... ..................... ........................................7
24 34 U.S.C. § I0152 ........... ................... .... ................ ...................... .............. ........... ................8, 13, 14
25 34 u.s.c. § 10153 .............................................................................................................................8
26 34 u.s.c. § 10156 ......... ................... ............................... .................. ...................... ........................ ..7

27

28
IV
Plaintiff's Not. of Mot. and Motion for Preliminary Injunction; MPA in Support Thcreof(l7-cv-4701)

Case 3:17-cv-04701-WHO Document 17 Filed 10/31/17 Page 6 of 33

TABLE OF AUTHORITIES
(contin u ed)
2

3 CALIFORNIA STATUTES

4 Cal. Civ. Proc. Code § 155(c) ..... ....................................... ...................................... ........................................... passim
5

6

Cal. Gov't Code § 7282 et seq. .................................... .........................................................................................2

7

§ 7283 et seq. ..... ................ .............................................. ........... ... ................... .................1, 2, 7

8

§ 7284 et seq. ......... ............ ............... ..................... .... ....... ........... ..............................................2

9

Cal. Penal Code

10

§ 422.93 ................. ................................ ........ ........... .... ... .... ....... .... .................. ..... ............ passim

11

§ 679. 10 ........................ ..................... .... ............... .......................... ....... ............... ..... ........ passim § 679.11 ......................... ................ ........ ................... ......................................................... passim

12
Cal. Welf. & Inst. Code

13

§ 827................ ... ........... .. ....................... .... ................... .... ..................... ............ .... ... ........ passim

§ 83 1............................ ....................... .................... ....... ........... .................................. .... ... passim

14

CONSTITUTIONAL PROVISIONS
15

Cal. Const., art. II, § 10 ...... .... .... ................ .... .... ........... .... .................. .................. ..................... .... ...3 16

17 Cal. Const., art. IV, § 8 .....................................................................................................................3

18 U. S. Const., art. I, § 8, cl. 4 .................... ..... ... ................ .................. ... .... ................... ........... ...........4

19 COU RT RULES 20 Cal. R. of Ct. 5.552 ...........................................................................................................................7

2 1 O THER AUTHORITIES

22 Anti -Drug Abuse Act of 1988, Pub. L. No. 100-690 ........................................................................8

23 Dep' t of Commerce, Justice, and State, the Judiciary, and Related Agencies

24

Appropriations Act of 1996, Pub. L. No. 104-1 34....... ....... .................. .... ............ .... ................. .8

25

Illegal Immigration Reform and Immigrant Responsibility Act of 1996, Pub. L. 104-208 ............ ... ................ .... ................ .... ............... ......................... ................ ... ................. ....5

26 Immigration Act of 1990, Pub. L. No. 10 1-649 .... ........... ....... .................................................. ........8
27

28
v
Plainli ff's Not. of Mol. and Motion for Preliminary Injunction; MPA in Support Thereof ( 17-cv-470 1)

Case 3:17-cv-04701-WHO Document 17 Filed 10/31/17 Page 7 of 33
TABLE OF AUTHORITIES (continued)
2 3 Technical Imm igration and and Naturalization Amendments of 1991, Pub. L. No.
I02-232 ................. ........................ ........................ ......................................................................8 4 5
6 7 8 9 10
II 12 13 14 15 16 17 18 19 20 21 22 23 24 25
26 27 28
VI
Plaintiff's Not. of Mot. and Motion for Preliminary Injunction; MPA in Support Tbereof(l7-cv-4701)

Case 3:17-cv-04701-WHO Document 17 Filed 10/31/17 Page 8 of 33

NOTICE OF MOTION AND MOTION FOR PRELIMINARY INJUNCTION

2

PLEASE TAKE NOTICE that on Wednesday, December 6, 2017, at 2:00p.m. or as soon

3 thereafter as it may be heard before the Honorable William H. Orrick in Courtroom 2 of the U . S.

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

5 CA 94102, Plaintiff State of Californ ia, ex rel. Xavier Becerra, California Attorney General will 6 and does hereby move the Court pursuant to F.R.C.P. 65 for a preliminary injunction against 7 Defendants Attorney General Jefferson Sessions, Assistant Attorney General Alan Hanson, and

8 the United States Department of Justice, and thei r officers, agents, servants, employees, and

9 attorneys, and any other persons who are in active concert or participation with them.

10

California moves the Court to enter a preliminary injunction prohibiting Defendants from

11 requiring comp liance with 8 U.S.C. § 1373 as a condition for the State and its political 12 subdivisions to receive funding pursuant to the Edward Byrne Memorial Justice Assistance Grant

13 ("JAG") program. In the alternative, because the State's laws comply with Section 1373,

14 California seeks an order enjoining Defendants from interpreting or enforcing Section 1373 in

15 such a manner to withhold or terminate funding from, or disbar or make ineligible, the State or

16 any of its po litical subdivisions that apply for JAG or Community Policing Services grants on

17 account of the fo llowing state statutes: California Government Code section 7283 et seq., Penal 18 Code sections 422.93, 679.10, 679.11, California Welfare and Institutions Code sections 827 and

19 831, and California Code of Civil Procedure section 155. This Motion is based on this Notice of 20 Motion and Motion, the Memorandum of Points and Authorities, the declarations, the Request for

21 Judicial Notice, as well as the papers, evidence and records on file, and any other written or oral

22 evidence or argument as may be presented.

23

MEMORANDUM OF POINTS AND AUTHORITIES

24

INTRODUCTION

25

Plaintiff State of California, ex rel. Xavier Becerra, California Attorney General moves for

26 a preliminary injunction preventing Defendants from enforcing conditions requiring the State and

27 its political subdivisions to comply with 8 U.S.C. § 1373 in order to receive $31.1 million in law
28 enforcement funding pursuant to the Edward Byrne Memorial Justice Assistance Grant ("JAG")

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and Community Oriented Policing Services ("COPS") grants.1 Starting with President Trump's

2 Executive Order No. 13768 directed at so-called "sanctuary jurisdictions," that has already been

3 found likely unconstitutional, the Trump Administration has sought to interpret and use Section 4 1373 in an constitutionally impermissible manner as a cudgel to force state and local jurisdictions

5 to acquiesce to the President's immigration enforcement demands. Defendants now require
6 jurisdictions to certify compliance with Section 1373, a statute restricting federal, state, and local

7 jurisdictions from prohibiting the exchange of information regarding an individual's immigration

8 and citizenship status, in order to receive grants that arc unrelated to immigration enforcement.

9

Although Defendants lack constitutional and legal authority to impose the Section 1373

10 conditions, under normal circumstances there would be no dispute because the State's laws 11 comply with Section 1373. To be sure, California has enacted confidentiality statutes that protect

12 residents ' personal information, including immigration status information, when the State has 13 deemed such statutes necessary for the State and its local governments to effectuate governmental 14 activities. California has also enacted the Transparent Review of Unjust Transfers and Holds

15 ("TRUTH") Act, Cal. Gov't Code§ 7283 et seq. to provide greater transparency about 1ocal law

16 enforcement involvement in immigration enforcement activities. These statutes are designed to

17 improve the public safety of all Californians by promoting relationships of trust between the State

18 and its 10 million foreign-born residents and their family members, and encourages victims and

19 witnesses of crime to come forward. Reading Section 1373 as applying to the TRUTH Act would

20 conflict with the text of Section 1373, while reading Section 1373 as to California's

21 confidentiality statutes would be inconsistent with the remainder of the Immigration and

22 Naturalization Act ("INA") and the federal government's own handling of immigration status

23 information. And either would violate the Tenth Amendment of the U.S. Constitution?

24 1 The FY 2017 State and Local Solicitations for JAG are Exhibits A and B, respectively, to the
Request for Judicial Notice accompanying this Motion. The FY 2017 COPS Application Guides 25 for the Anti-Methamphetamine Program and Anti-Heroin Task Forces are Exhibits C and D,
respectively, to the Judicial Notice Request.
26 2 As reflected in the State's First Amended Complaint ("FAC") (filed Oct. 13, 2017), on October
5, 2017, California enacted an amended TRUST Act, Cal. Gov't Code§ 7282 et seq. and the 27 Values Act, Cal. Gov 't Code§ 7284 et seq. On October 17, 2017, the California Department of
Justice received a proposed statewide referendum on both laws. Given the proposed referendum, 28
2
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Defendants have nevertheless indicated their view that statutes and policies similar to those 2 in California are incompatible with Section 1373. On October 12, 20 17, Defendants announced

3 preliminary assessments with respect to seven jurisdictions across the country from which

4 Defendants sought legal opinions validating their compliance with Section 1373. Defendants

5 determined that five of the jurisdictions had laws or policies that appear to violate Section 1373,

6 including one jurisdiction because it had policies regulating the disclosure of information

7 regarding victims of crime. The federal government has also indicated that laws and policies that

8 regulate immigration authorities' access to detention facilities violate Section 1373. California

9 too submitted a legal opinion that analyzed California's laws and concluded that the State does

I 0 not violate Section 1373. Unlike the other jurisdictions that submitted legal opinions, however,

11 California has yet to receive any response from the Defendants. Now, in order to receive FY

12 2017 JAG funding, Defendants demand that the State submit an unqualified certification of

13 compliance, under penalty of perjury, without providing any response to the State's legal opinion.

14 USDOJ will soon make awards for the COPS grants, which Defendants will either deny to the

15 State or demand that the State accept only if it assures that it will comply with all applicable laws,

16 which would include compliance with Defendants' misinterpretation of Section 1373.

17

Defendants' actions cause irreparable harm to the State's sovereignty, public safety, and

18 operations. Congress has appropriated $28.3 million in JAG funding to California to support

19 criminal justice programs. Among other things, these programs support crime victims and

20 witnesses, reduce recidivism, facilitate crime prevention education for at-risk youth, and fund

21 other law. enforcement programs. The State is also expected to receive $2.8 million pursuant to

22 two COPS grants, grants that the State has received every year they have existed, which are used

23 which at a minimum delays the effective date ofthe new laws (see Cal. Const., art. II,§ lO(a); id.
24 art. IV,§ 8(c)(2)), the State does not address the Values Act or amended TRUST Act in this Motion. Nonetheless, a decision on this Motion regarding the State's Confidentiality Statutes and
25 the TRUTH Act will allow the State and its political subdivisions to make an informed decision about the interplay between Section 1373, and thus, the grant conditions, and the Values Act and
26 amended TRUST Act when those laws come into effect. California reserves its right to move for preliminary injunction and seek any other relief once these laws become effective or if
27 Defendants seck to enforce the Section 1373 conditions against the State or its political subdivisions on account of these laws that have yet to go into effect.
28
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to investigate illicit drug distribution. Loss of these funds will harm public safety. But public

2 safety will also be harmed if the State and its political subdivisions must accede to Defendants'

3 demands in order to receive these federal dollars. Defendants' misinterpretation ofSection 1373 4 further means that Californians will not be able to hold its state and local officials appropriately

5 accountable for policy changes that are beyond their control- the very harm the Tenth
6 Amendment aims to prevent. To prevent these harms, a preliminary injunction is necessary.3

7

BACKGROUND

8

A. Section 1373 and the INA

9

The U.S. Constitution grants Congress the power to regulate immigration and

10 naturalization. See art. I, § 8, cl. 4. Congress bas done so via the comprehensive framework 11 codified in the INA. Two provisions of the INA restrict federal, state, and local governments in

12 how they may control the exchange of information regarding an individual's immigration and 13 citizenship status. The statute relevant to this litigation is 8 U.S.C. § 1373.4 Paragraph (a) of

14 Section 1373 provides as follows:

15

Notwithstanding any other provision of Federal, State, or local law, a Federal, State,

or local government entity or official may not prohibit, or in any way restrict, any

16

government entity or official from sending to, or receiving from [federal immigration

authorities] information regarding the citizenship or immigration status, lawful or

17

unlawful, of any individual.

18 Paragraph (b) forbids federal, state, or local governments from prohibiting the following: (i)

19 "[s]ending [immigration status] information to, or requesting or receiving such information from

20 [federal immigration authorities];" (ii) " [m]aintaining such information;" or (iii) "[e]xchanging

21 such information with any other Federal, State, or local government entity."

22

Other provisions of the INA provide information-sharing safeguards for certain vulnerable

23 immigrants, including those who are undocumented. For example, the INA offers protections and

24 3 California has also brought claims challenging Defendants' imposition of conditions requiring .jurisdictions to respond to requests by the Department of Homeland Security ("DHS") for
25 inmates' release dates and to provide DHS agents access to detention facilities for interview purposes. See, e.g., FAC, ,1,1122- 144. Those conditions are currently subject to a nationwide
26 injunction. See City ofChicago v. Sessions, No. 17-cv-5720, ECF No. 78 (N.D. Ill. Sept. 15, 2017). California reserves its right to seek a preliminary injunction as to those conditions if the
27 nationwide injunction is stayed or modified. 4 The other statute, 8 U.S.C. § 1644, exists in a chapter within the INA for "Restricting Welfare
28 and Public Benefits for Aliens" and contains restrictions that are encompassed by Section 1373. 4
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benefits to victims and witnesses of crime by creating specialized U-visas for those who have 2 cooperated with law enforcement in investigating or prosecuting enumerated crimes such as 3 domestic violence and child abuse, and T -visas for those who have cooperated in prosecuting 4 human trafficking. !d. § 1101 (a)( 15)(T)-(U). Title 8, Section 1367, which was enacted as part of 5 the Illegal Immigration Reform and Immigrant Responsibility Act of 1996, Pub. L. 104-208, the 6 same Act that created Section 1373,5 generally prohibits the "use by or disclosure" of any 7 information provided during the process of applying for U- or T- visas, or other benefits available 8 for immigrant witnesses and victims of crime, "to anyone" other than identified federal 9 departments. See 8 U.S.C. § 1367(a)(1)-(2). It also prohibits using the information provided to 10 "make an adverse determination of admissibility or deportability" for the immigrant victims and 11 witnesses of crime. ld. Moreover, the INA details a "Special Immigrant Juvenile" process, 12 through which certain abused, neglected, or abandoned undocumented immigrant children may 13 seek legal immigration status. !d. § 110l(a)(27)(J). Federal law relies on state courts to make the 14 predicate determination for youth who are eligible to apply for this status. See id.

15

B. California's Statutes

16

California's laws are consistent with the INA. Relevant to this Motion are the State's laws

17 impacted by Defendants' interpretation of Section 1373, and arguably implicated by the Section

18 1373 conditions. Those are the TRUTH Act and six state statutes relating to confidentiality, the

19 "State's Confidenti ality Statutes": Penal Code sections 422.93, 679.10, 679.11, Welfare and

20 Institutions Code sections 827 and 831, and Code of Civi l Procedure section 155.

21

California has historically enacted statutes like these to strengthen community policing

22 efforts.6 Exercising its discretion, California has concluded that statutes like these improve public

23 safety in light of evidence that immigrants are no more likely to commit crimes than native-born

24 Americans/ and that a clear distinction between local law enforcement and immigration

25 enforcement results in safer communities. See, e.g., RJN Exs. Fat 5, Gat 8. The California

26 5 Compare id. § 384 with id. § 642.
27 6 See, e.g., 2016 Cal. Legis. Serv. Ch. 768 § 2(i) (A.B. 2792 or the "TRUTH Act"); 2013 Cal. t-egis. Serv. Ch. 570 § 1(~)(A.B. 4 or the "TRUST Act"); Cal. Penal Code§ 422.93(a).
28 See, e.g., 2013 Cal. Leg1s. Serv. Ch. 570 § 1(d) (A.B. 4); RJN Ex. Eat 6.
5
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Legislature has relied on law enforcement officers' statements about the public safety benefits of

2 practices that reduce the entanglement between their agencies and immigration enforcement. See,

3 e.g., RJN Ex. Gat 9. Law enforcement agencies ("LEAs") throughout the State continue to build

4 trust between LEAs and immigrant communities so that "people could come forward if they are a

5 crime victim or ... witness to a crime without fear of being deported." See Decl. ofL.A. Cty.

6 Sheriff Jim McDonnell in Supp. of PI. 's Mot. for Prelim. Inj. ("McDonnell Decl."), ~,II 0-13; see

7 also Compl., City and Cty. ofSan Francisco v. Sessions, No. 17-4642 (N.D. Cal. Aug. 11, 20 17)

8 ("S.F. Compl.") ,[~ 19, 28. These laws and local practices protect the public safety of all

9 Californians, regardless of immigration status. See, e.g., FAC, ~,114, 30-32.

10

To ensure the proper operation of state and local criminal and juvenile justice systems, the

11 State's Confidentiality Starues protect, in discrete circumstances, the confidentiality of sensitive

12 information that the State and its localities collect and maintain. These Confidentiality Statutes

13 can be broken down into two categories. The first category (Cal. Penal Code§§ 422.93, 679.10,

14 679.I 1) consists of starutes that protect the confidential information of victims and witnesses of

15 crime, in order to "encourag[e]""victims of or witnesses to crime, or [those] who otherwise can

16 give evidence in a criminal investigation, to cooperate with the criminal justice system." See,

17 e.g., Cal. Penal Code§ 422.93(a). California Penal Code sections 679.10 and 679.11 implement

18 the state and local LEA's role in the federal U- and T-visa process by, among other things,

19 prohibiting certifying entities from "disclosing the immigration status of a victim" or other person

20 requesting certification "except to comply with federa l law or legal process, or if authorized by

21 the victim or person requesting [the certification form]." !d. §§ 679. 10(k), 679.11(k). These

22 confidentiality protections impact thousands of immigrants who come forward to cooperate with

23 law enforcement. For example, in 2016, the year Section 679.10 came into effect for U-visa

24 applicants, L.A. County Sheriffs Department received double the number of U-visa applications

25 from the year before (954 in total, 80 percent of which were certified), and in 2017, L.A. County

26 has already processed 774 applications, 90 percent of which have been certified. McDonnell

27 Dec!., ,114. The third state statute in this category, Penal Code section 422.93, protects hate-

28 crime victims or witnesses who are "not charged with or convicted of committing any crime 6
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under State law" by prohibiting law enforcement from "detain[ing] the individual exclusively for

2 any actual or suspected immigration violation or report[ing] or tum[ing] the individual over to

3 federal immigration authorities." Cal. Penal Code§ 422.93(b).

4

The second category of statutes (Cal. Welf. & Inst. Code§§ 827, 831; Cal. Civ. Proc. Code

5 § 155) protects the confidential information of youth in the State's juvenile court system. The

6 Legislature determined that"[c]onfidentiality is integral to the operation of the juvenile system in

7 · order to avoid stigma and promote rehabilitation for all youth." Cal. Welf. & Inst. Code§ 831(a).

8 As a general rule, juvenile court records and the information therein is confidential except to

9 statutorily designated parties. Cal. Welf. & Inst. Code§ 827; see also Cal. R. of Ct. 5.552(b)-(c).

l0 Consistent with that general requirement, the State has implemented its role in the federal Special

11 Immigrant Juvenile process, through its dependency court system, by directing that "information

12 regarding the child's immigration status ... remain confidential and shall be available for

13 inspection only" to a handful of enumerated parties. Cal. Civ. Proc. Code § I 55(c). Information

14 about a child's immigration status in any juvenile court proceeding must "remain confidential"

15 just like all other information in the youth's court records. See Cal. Welf. & lnst. Code § 831(e).

16

In addition, in 2016 the State enacted the TRUTH Act, which increased transparency about

17 local LEA's involvement when federal immigration authorities seek to interview an individual in

18 local custody. Under the TRUTH Act, local jails must notify individuals that the interviews are

19 voluntary, and that they have the right to seck counsel. Cal. Gov't Code§ 7283.I (a). And, upon

20 receipt of a detainer, notification, or transfer request, a LEA must provide the subject a copy and

21 inform him or her whether the LEA intends to comply. !d. § 7283 .I (b).

22

· C. The History and Purpose of JAG

23

JAG is a formula grant authorized by Congress and administered by OJP. 34 U.S .C. §§

24 1015 1-58. The statutory formula guarantees to each state a minimum allocation based on the

25 state's population and violent crime rate. Sixty percent of a state's tota l allocation goes directly

26 to the state and the remainder goes directly to local government~. !d. § 10 156(a), (b)( 1), (d).

27

The current JAG program descended from two earlier programs. Congress created the

28 Edward Byrne Memorial State and Local Law Enforcement Assistance Program grants ("Byrne 7
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Grants") as part of the Anti-Drug Abuse Act of 1988. The purpose was "to assist States and units

2 oflocal government in carrying out specific programs which offer a high probability of

3 improving the functioning of the criminal justice system." Anti-Drug Abuse Act of 1988, Pub. L.

4 No. 100-690, tit. VI,§ 6091(a), 102 Stat. 4181 , 4329 (1988). Between 1988 and 2006, Congress
5 identified 29 purposes for which Byrne Grants could be used. See 42 U.S.C. § 3751(b) (Dec.

6 2000) (as it existed on Jan. 4, 2006). Separately, Congress identified nine purposes for Local 7 Law Enforcement Block Grants ("LLEBG").8 Immigration enforcement never appeared as a 8 purpose for either the Byrne Grants or LLEBG.9

9

In 2006, Congress merged the Byrne Grant and LLEBG programs to create the current JAG

10 program. Pub L. No. 109-162, 119 Stat. 2960, 3094 (2006). The merger aimed to eliminate 11 duplication, and to provide state and local governments "more flexibility to spend money for

12 programs that work for them rather than to impose a 'one size fits' all solution" to local law

13 enforcement. H.R. Rep. No. 109-233, at 89 (2005). Following the 2006 merger, Congress

14 consolidated the "purpose areas" down to eight: (A) law enforcement programs; (B) prosecution

15 and court programs; (C) prevention and education programs; (D) corrections and community

16 corrections programs; (E) drug treatment and enforcement programs; (F) planning, evaluation,

17 and technology improvement programs; (G) crime victim and witness programs; and (H) mental

18 health programs related to law enforcement and corrections. 34 U.S.C. § l0152(a)(1).

19

Congress never created a "purpose area" of immigration enforcement in either the former or

20 current iterations of JAG. Only one immigration-related requirement ever existed in any iteration

21 of the JAG authorizing statute: a requirement that the chief executive officer of the recipient state
° 22 provide certified records of"criminal convictions ofaliens." 1 Congress repealed that

23 requirement in the 2006 merger that created the current JAG program. See 34 U.S.C. § I 0 I 53(a).

24 8 Local Government Law Enforcement Block Grants Act of 1995, H.R. 728, 104th Cong. (1995)
25 first authorized as part of the Dep 't of Commerce, Justice, and State, the Judiciary, and Related Agencies Appropriations Act of 1996, Pub. L. No. 104-134, tit. I, 110 Stat. 1321, 1321 -12 (1996).
26 9 See Decl. ofLce Sherman in Supp. ofPI. 's Mot. for Prelim. Inj. ("Sherman Decl.") Exs. H ~identifying the 29 Byrne Grant purposes), I (identifying the 9 LLEBG purposes).
27 0 See Immigration Act of 1990, Pub. L. No. 101-649, tit. V, § 507(a), 104 Stat. 4978,5050-51 ( 1990); Miscellaneous and Technical Immigration and Naturalization Amendments of 1991, Pub.
28 L. No. 102-232, tit. Ill,§ 306(a)(6), 105 Stat. 1733, 1751 (1991) (repealed 2006).
8
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D. California's Use of JAG and COPS Funds

2

California's Board of State and Community Corrections ("BSCC") is the State entity that

3 receives California's allocation of the JAG program's formula grant funds. The State has

4 received $252.7 million pursuant to JAG since 2006, excluding funding that the federal

5 government granted directly to the State's local jurisdictions. See DecI. of Mary Jolls in Supp. of

6 Pl.'s Mot. for Prelim. Inj. ("Jolls Decl."), ~ 7. Based on the statutory formula, California is

7 expected to receive approximately $28.3 million in JAG funding in FY 2017, with $17.7 million

8 going to BSCC. !d. ,[5. The BSCC uses the State's share of the JAG award to issue subgrants to

9 jurisdictions that propose using the funds for education and crime prevention programs, law

10 enforcement programs, and court programs, including toward the goals of improving educational

11 outcomes, increasing graduation rates, curbing truancy, reducing substance abuse, and curtailing

12 delinquency and recidivism for at-risk youth and young adults. !d. ~~ 8, 10 & Ex. A. For

13 example, L.A. County uses JAG funding to support anti-drug trafficking programs and

14 investigations, intervention programs for vulnerable youth, mental health programs, and anti-gang

15 enforcement activities. McDonnell Dec I. , ~,[4-9. The City and County of San Francisco relies

16 on JAG to fund, among other thing, projects that seek to reduce recidivism by providing an

17 alternative to suspension and other services for at-risk juveniles and young adults. S.F. Compl., ~~

18 42-45. BSCC currently funds programs for 32 local jurisdictions, as well as the California

19 Department of Justice ("CalDOJ") to support task forces focused on criminal drug enforcement,

20 violent crime, and gang activity. Jolls Decl., ~ 10; DecI. of Christopher Caligiuri in Supp. of Pl.'s

21 Mot. for Prelim. Inj. ("Caligiuri Decl."), ~~ 19-21. The BSCC plans on using FY 2017 JAG

22 funds to support programs similar to those that it has funded in the past. Jolls Decl., ~ 11.

23

The Division of Law Enforcement ("DLE") within CalDOJ is the State entity that receives

24 COPS competitive grants. Since the inception of the COPS program, CaiDOJ has received over

25 $11 million to support law enforcement etiorts around the State, including work on rnulti-
26 jurisdictional task forces. Caligiuri Decl., ,14. For this fiscal year, CaiDOJ applied for two COPS

27 grants worth $2.8 million. See id. ~~ 10, 16. CalDOJ applied for the COPS Anti-

28 Methamphetamine Program ("CAMP") grant to cover salaries, benefits, and other costs to 9
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continue the State's leadership in a task force whose targeted enforcement against large-scale 2 methamphetamine drug trafficking organizations has resulted in the seizure of upwards of $60 3 million of methamphetamine, cocaine, and heroin. See id. ~~ 6-8, 10. CalDOJ also applied for 4 the COPS Anti-Heroin Task Force ("AHTF") grant, to cover equipment, including potentially5 lifesaving TruNarc handheld narcotics analyzers, consultants, and other costs in support of 14 6 heroin-related task forces that conduct large scale heroin investigations, share data and 7 intelligence among law enforcement personnel throughout the State, and hold education sessions
8 in the community about drug abuse awareness. See id. ,[,[ 12-14, 16. CalDOJ has been awarded 9 CAMP and AHTF grants for each year these programs have been in existence. See id. ~~ 5, 12.

I 0

E. JAG and COPS Requirements in Relation to Section 1373

II

In FY 2016, USDOJ declared Section 1373 an "applicable law" for JAG, RJN Ex. H, and

12 specifically required BSCC to submit a legal opinion validating its compliance with Section 1373.

13 Jolls Decl., Ex. 8, ~55. For FY 2017, Defendants announced that all jurisdictions receiving JAG

14 funds must certify compliance with Section 1373. E.g., RJN, Ex. A at I, Ex. Bat 1. Each grant

15 recipient's chief law officer, the Attorney General in the State's case, must sign a standard

16 affidavit, under penalty of perjury, affirming compliance with Section 1373 on behalf of the State

17 and "any entity, agency, or official" of the State as applicable to the "program or activity to be

18 funded." RJN, Ex. A, Appx. II. The grant recipient's chief executive officer, the Governor in the

19 State' s case, must adopt that certification, under penalty of perjury. ld., Appx. I. Grant recipients

20 must collect Section 1373 certifications from all subgrant recipients before issuing an award.

21 RJN Ex. J, ~ 53(2). In addition, USDOJ's represented final award conditions require grantees to

22 monitor their subgrantees' compliance with Section 1373 and to promptly notify OJP if any

23 subgrantee does not comply. Id. ~~ 53(3), 54(l)(D). USDOJ's Financial Guide explains that

24 jurisdictions "have 45 days from the award date to accept (an] OJP ... award document or the

25 award may be rescinded," which includes the requisite certifications. See RJN, Ex. K, § 2.2.

26

USDOJ announced that COPS applicants for 2017 must execute a similar Section 1373

27 certification of compliance with respect to the "program or activity to be funded." RJN, Ex. Cat

28 2 & Appx. D; Ex. D at 1-2 & Appx. D. CalDOJ submitted its applications with the executed 10
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certifications for AHTF and CAMP on July 7 and 10, respectively. Caligiuri Decl., ~~ 9, 15 &

2 Exs. B, D. As part of their applications, DLE included a supplemental statement by CaJDOJ in 3 connection with the COPS Section 1373 Certifications. !d. There, CaiDOJ clarified that the 4 COPS Section 1373 Certifications were made "as that federal statute is lawfully interpreted," and 5 reserved its rights to challenge "any unconstitutional enforcement of Section 1373." I d., Exs. B, 6 D. On September 7, 2017, USDOJ communicated to applicants that it was "committed" to 7 "announcing this year's award recipients as quickly as possible." Sherman Decl., Ex. J. As has

8 been required in years' past, once CAMP and AHTF COPS awards are announced, recipients will 9 have to execute award conditions certifying that they will comply with all applicable laws, which I0 includes Section 1373. See Caligiuri Dec!., ,1,15, 13 & Exs. A,~ I, C, ~ I. On October 23, 2017, II USDOJ announced COPS awards for other programs, RJN Ex. L, but as of the date of this filing, 12 DLE has not received any response to its applications. See Caligiuri Decl., ~~ 11, 17.

13

F. Defendants' Other Actions Threatening to Find the State in Violation of

Section 1373

14

15

On April 21, 2017, Defendants sent letters to nine jurisdictions that received the JAG award

16 in 2016, including the BSCC, demanding that they submit an official legal opinion validating

17 their compliance with Section 1373. RJN, Exs. I, M. That same day, Defendants Sessions and

18 USDOJ both stated that the State of Cahfornia has laws "that potentially violate 8 U.S.C. § 19 1373," relying on an Office oflnspector General Report. 11 RJN Exs. M, N. On June 29, the 20 BSCC submitted the requested legal opinion explaining the State's laws do not violate Section 21 1373, focusing on the applications ofSection 1373 discussed in that OIG Report. See Jolls Decl., 22 Ex. C. On July 6, Defendant Sessions suggested, without offering any support, that the nine 23 jurisdictions may not be in compliance with Section 1373 saying,_" It is not enough to assert 24 compliance, the jurisdictions must actually be in compliance." RJN, Ex. P.

25

26 11 Defendants are incorrect in claiming that the OIG Report found California in "potential" violation of Section 1373. The State of California was identified in the OIG report, in large part,
27 because of the relatively large amount of money it receives in federal funding from USDOJ. See RJN, Ex. 0 at 3. While the OIG Report commented about some jurisdictions' compliance with
28 Section 1373, the report did not discuss in detail California's law as it existed at that time.
11
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In August 2017, Defendants informed two of those jurisdictions that they comply with

2 Section 1373. On October 12, 2017, Defendants announced that they made preliminary

3 compliance assessments on the other six jurisdictions (plus one other jurisdiction). See RJN, Ex.

4 Q. Defendants announced that they found no evidence of non-compliance with Section 1373 as

5 to two of the seven jurisdictions. Id. Defendants preliminarily determined that the other five

6 jurisdictions appeared not to comply with Section 1373. !d. For one jurisdiction, Defendants

7 based the ir determination, in part, on the jurisdiction's protections against the disclosure of crime

8 victims' information, see RJN, Ex. Rat 1-2, which California's laws also protect in some

9 instances. California remains the only j urisdiction that provided a legal opinion to which

10 Defendants have not responded, making the Defendants' last word their prior erroneous

II statements about California's "potential" non-compliance with Section 1373.

12

The Administration has made additional statements suggesting it has an even broader

13 interpretation of Section 1373 than communicated in the preliminary assessment letters, and a

14 misunderstanding about California's laws. On June 13, 2017, the Acting Director of Immigration

15 and Customs Enforcement ("ICE"), Thomas Homan, testified before Congress that jurisdictions

16 that " have some sort of policy where they don't ... allow [ICE] access to the jails" violate Section

17 1373. See RJN, Ex. Sat 35, 47-48. Although California's TRUTH Act does not prohibit LEAs

18 from providing such access, Defendant Sessions has stated that "the State of California . . . [has]

19 enacted statutes ... designed to specifically prohibit or hinder ICE from enforcing immigration

20 law by . . . denying requests by ICE oftlcers and agents to enter prisons and jails to make arrests."

21 RJN, Ex. Tat 2.

22 23 I. 24

LEGALARGUMENT
LF..GALSTANDARD " The purpose of a preliminary injunction is merely to preserve the relative position of the

25 parties until a trial on the merits can be held." Uni v. ofTexas v. Camenisch, 451 U.S. 390, 395

26 (1981 ). "A plaintiff seeking a preliminary injunction must establish that he is likely to succeed on

27 the merits, that he is likely to suffer irreparable harm in the absence of preliminary relief, that the

28 balance of equities tips in h is favor, and that an injunction is in the public interest." Winter v. 12
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Nat. Res. Def Council, Inc., 555 U.S. 7, 20 (2008). A preliminary injunction is "often dependent 2 as much on the equities of[the] case as the substance of the legal issues it presents." Trump v.

3 lnt 'l Refugee Assistance Project, 137 S.Ct. 2080, 2087 (2017).

4 II. CALIFORNIA IS LIKELY TO SUCCEED ON ITS CLAIMS THAT THE JAG SECTION 1373
CONDITION IS UNLAWFUL
5

6

Before considering whether California's laws comply with Section 1373, the Court must

7 first determine whether Defendants may even lawfully impose the JAG Section 1373 Condition.

8 They cannot: The State is likely to succeed on its claims that this Section 1373 Condition violates

9 the Spending Clause and is arbitrary and capricious under the Administrative Procedure Act.

10

A. The JAG Section 1373 Condition Violates the Spending Clause Because it

is Unrelated to the Purpose of JAG

11

12

Congress may only use its spending power to place conditions on federal funds that arc

13 related '"to the federal interest in particular national projects or programs."' South Dakota v.

14 Dole, 483 U.S. 203, 207 (1987) (quoting Massachusetts v. United States, 435 U.S. 444, 461

15 (1978)). This Court has determined that the same test applies when the Executive Branch

16 imposes a condition by purported delegation from Congress, and that "funds conditioned on

17 compliance with Section 1373 must have some nexus to immigration enforcement." See Cty. of

18 Santa Clara v. Trump, 250 F. Supp. 3d 497, 532 (N.D. Cal. 2017).

19

Section 1373 has no such nexus to the JAG program. Congress has never identified

20 immigration enforcement as a "purpose area" for JAG, and repealed the only immigration-

21 enforcement related condition that it had ever authorized for JAG fund ing. Supra at 8. The

22 present statute identifies eight purpose areas for JAG, which the State predominantly uses to fund

23 community policing initiatives for crime prevention and education for at risk youth, drug

24 treatment and enforcement, and mental health programs. See lolls Dccl., ,1~ 8, 10.

25

Congress has been clear in identifying these as purposes areas to fund "criminal justice"

26 initiatives, 34 U.S.C. § 10152, (emphasis added), whereas, immigration enforcement is generally

27 civil in nature and predominantly the responsibility of the federal government. See Arizona v.

28 United States, 567 U.S. 387, 396 (2012). In reinforcement of this distinction, the only 13
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immigration enforcement related condition that ever existed for JAG required jurisdictions to

2 provide records for "criminal convictions of aliens." Supra at 8. _The Executive Branch's

3 unilateral act to add Section 1373 as an "applicable law" violates the nexus prong of the Spending

4 Clause as it requires state and local jurisdictions to comply with a condition to support a different 5 program (the federal government's civil immigration priorities) than the "criminal justice" 6 program being funded. 34 U.S.C. §§ 10152; see Texas v. United States, No. 15-cv-151, 2016 WL 7 4138632, at *17 (N.D. Tex. Aug. 4, 2016) (holding that a Spending Clause claim.was viable 8 because a challenged health insurance fee was not '"directly related,' let alone 'reasonably 9 related"' to Medicaid since its purpose was to fund a different federal program).

10

B. Imposition of the JAG Section 1373 Condition is Arbitrary and Capricious

11

Defendants' identification of Section 1373 as an "applicable law" for JAG is arbitrary and

12 capricious in violation ofthc Administrative Procedure Act. 5 U.S.C. § 706(2)(A). "[A]n agency

13 must cogently explain why it has exercised its discretion in a given manner." Motor Vehicle 14 Mfrs. Ass 'n ofthe US. v. State Farm Mut. Auto. ins. Co., 463 U.S. 29,48 (1983). Before 2016,

15 JAG was never linked to Section 1373 at any point in the nearly twenty years that Section 1373

16 has been law. In response to an inquiry by one Congressman, and without providing any 17 evidence that Congress intended for immigration enforcement to be a purpose area for JAG, in

18 2016, USDOJ declared Section 1373 an "applicable law," with which JAG recipients must

19 comply. See RJN, Ex. H. At no point, either for FY 2016 or 2017, have Defendants "show[n] 20 that there are good reasons for the new policy." FCC v. Fox Television Stations, Inc., 556 U.S.

21 502, 515 (2009); see also State Farm , 463 U.S. at 50 ("It is well established that an agency's

22 action must be upheld, if at all, on the basis articulated by the agency itself.").

23

Indeed, Defendants have put forth nothing- no studies, no reports, no analysis- to support

24 the JAG Section 1373 Condition. The OIG Report does not discuss or contemplate how the .25 Section 1373 Condition is consistent with the underlying goals of JAG, or Congress' intent in 26 adopting JAG. See Nat 'I Cable & Telecomms. Ass 'n v. Brand X Internet Servs., 545 U.S. 967, 27 981 (2005) ("Unexplained inconsistency is... a reason for holding an interpretation to be an 28 arbitrary and capricious change from agency practice under the Administrative Procedure Act.");
14
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Cape May Greene, In c. v. Warren, 698 F.2d 179, 186-87 (3d Cir. 1983) (invalidating agency

2 action on grant conditions as arbitrary and capricious where the agency sought "to accomplish

3 matters not included in that statute"). Neither do the JAG Solicitations. A general recitation of

4 "Border Security" as an area of emphasis in the JAG Solicitations, RJN, Ex. A at 11, falls "short

5 of the agency's duty to explain why it deemed it necessary to overrule its previous position,"

6 particularly where Congress never identified Border Security as a purpose. Encino Motorcars,

7 LLC v. Navarro , 136 S.Ct. 2117,2125,2126 (2016); see id. ("Agencies are free to change their

8 existing policies as long as they provide a reasoned explanation for the change.").

9

There is also nothing to suggest that Defendants considered the empirical evidence and law

10 enforcement perspectives that jurisdictions around the country, including the State and its

I 1 political subdivisions, have relied upon in exercise of their sovereign discretion, that policies that

I 2 build trust and cooperation with immigrant communities result in positive criminal enforcement

13 and safety outcomes. See, e.g. , RJN, Exs. E-G; McDonnell Decl., ~ 12; S.F. Compl., ~ 28; see

14 also State ~Farm, 463 U.S. at 43 ("Normally, an agency rule would be arbitrary and capricious if

15 the agency has ... entirely failed to consider an important aspect of the problem....").

16 III. CALIFORNIA IS LIKELY TO SUCCEED IN SHOWING THAT CALIFORNIA'S STATUTES Do NOT VIOLATE SECTION 1373 .
17

18

Even if the JAG Section 1373 Condition is lawful, the State is likely to succeed in showing

19 that the applicable State's statutes do not conflict with Section 1373, or, alternatively, Section

20 1373 cannot be enforced against those statutes, which is relevant to both JAG and COPS.

21

A. Section 1373 Cannot be Lawfully Interpreted or Enforced to Reach

California's Confidentiality Statutes

22

23

California 's Confidentiality Statutes protect the confidentiality of sensitive information the

24 State collects in the course of undertaking core state functions. These statutes do not conflict with

25 Section 1373 read in the context ofthe entire INA. Furthermore, reading Section 1373 to

26 invalidate these statutes would constitute commandeering prohibited by the Tenth Amendment.

27 Ill
28

15
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1. California's Confidentiality Statutes Do Not Conflict with Section 1373
2

3

Section 1373 must be read in the context of the rest of the INA. See Davis v. Mich. Dep 't.

4 ofTreasury, 489 U.S. 803,809 (1989) ("It is a fundamental canon of statutory construction that

5 the words of a statute must be read in their context and with a view to their place in the overall

6 statutory scheme."). The INA specifically protects the confidentiality of information about those

7 who have been victims of or witnesses to certain crimes. Section 1367(a)(2), enacted as part of

8 the same legislative act as Section 1373, prevents federal employees from "disclos[ing] to anyone

9 [with exceptions] any information which relates to an alien who is the beneficiary of an

10 application for relief" under the statute, i.e. certain victims and witnesses of crime including U-

11 and T-visa recipients. The Defendants' reading of Section 1373 would require federal employees

12 to violate Section 1373(b)(3 )'s prohibitions on limits to the disclosure of immigration status

13 information from federal employees to other governmental entiti es to implement the general

14 disclosure prohibitions in Section 1367(a)(2).

15

The INA also provides protections and support for certain juveniles. For example, the

16 "Special Immigrant Juvenile" process allows abused, abandoned and neglected immigrant youth

17 to secure lawful immigration status, demonstrating the INA's broader concern with the long-term

18 safety ofsueh children generally. See 8 U.S.C. § 110l(a)(27)(J). Furthermore, in implementing

19 the Deferred Action for Childhood Arrivals ("DACA") program, United States Citizenship and

20 Immigration Services ("USCIS") specifically determined that the information provided by DACA

21 applicants must be "protected from disclosure to ICE and CBP for the purpose of immigration

22 enforcement proceedings," with limited exceptions. See RJN, Ex. U, QI9.

23

Accordingly, reading the text of Section 1373 in the context of the rest of the INA shows

24 that the prohibition on limiting information-sharing should not be properly interpreted to cover

25 the limited circumstances encompassed by the State's Confidentiality Statutes. The persons

26 covered by the State's statutes are similar classes of individuals to those that the INA (and the

27 federal government) itself seeks to protect both through confidentiality and other protections: (a)

28 16
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victims and witnesses of crime (Cal. Penal Code§§ 422.93, 679.IO(k), and 679.ll(k)); and (b)

2 vulnerable youth (Cal. Civ. Proc. Code§ 155(c); Welf. & lnst. Code§§ 827, 831).

3

The plain language of Section 1373 does not demand a different reading. The words in

4 Section 1373 regarding the immigration status of "any individual," must "be read in their context

5 and with a view to their place in the overall statutory scheme." Davis, 489 U.S. at 809. For

6 example, in Atascadero State Hospital v. Scanlon, 473 U.S. 234 (1985), the Supreme Court read

7 "any recipient ofFederal assistance" to not include every recipient, but instead to exclude state

8 defendants. !d. at 245-46 (emphasis in original), superseded by statute; see also Raygor v.

9 Regents of Univ. ofMinn., 534 U.S. 533, 545-46 (2002) ("any claim" did not include every claim,

10 but instead excluded certain claims against state defendants). In this instance, "any individual"

11 should be read in the context of the rest of the INA to exclude those individuals protected by

12 other specific sections of the INA. That is particularly so given the serious constitutional

13 questions about the statute that would otherwise arise, as discussed below. See Bond v. United

14 States, 134 S. Ct. 2077, 2089 (2014) ('" [l]t is incumbent upon the federal courts to be certain of

15 Congress' intent before finding that federal law overrides' the 'usual constitutional balance of

16 federal and state powers."') (quoting Gregory v. Ashcroft, 501 U.S. 452, 460 ( 1991 )).

17

2. The Tenth Amendment Does Not Allow for Section 1373 to

Commandeer the State in its Control over Governmental Employees

18

and its Residents' Confidential Personal Information

19

The Supreme Court has read the Tenth Amendment to impose recognized limits on

20 Congressional enactments. The Framers "explicitly chose a Constitution that confers upon

21 Congress the power to regulate individuals, not States" and the Constitution "has never been

22 understood to confer upon Congress the ability to require the States to govern according to

23 Congress' instructions." New York v. United States, 505 U.S. 144, 162, 166 (1992). As such, the

24 Supreme Court held in New York and Printz v. United States, 521 U.S. 898 (1997) that the federal

25 government may not "commandeer" state and local governments and officials "by directly

26 compelling them to enact and enforce a federal regulatory program." Printz, 521 U.S. at 935;

27 New York, 505 U.S. at 162. Both cases advance the principles that: (i) "the federal government

28 may not compel the States to enact or administer a federal regulatory program" e.g., New York, 17
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505 U.S. at 188; (ii) such coercion is impermissible where the "whole object" of the

2 Congressional action is direction of state functions, e.g., Printz, 521 U.S. at 932; and (iii) the

3 intrusion on state sovereignty is "worse" where the federal government "strips" away at state and

4 local government's discretion at policy-making. E.g., Printz, 521 U.S. at 927-28; see also Koog

5 v. United States, 79 F.3d 452, 457-60 (5th Cir. 1996). These principles ensure that state and local

6 governments remain politically accountable to their residents. See Printz, 521 U.S. at 920, 922-

7 23; Koog, 79 F.3d at 460-61 . Reading Section 1373 to cover the State's Confidentiality Statutes

8 violates these principles and upsets constitutional notions of political accountability. The Court

9 should thus construe Section 1373 in a manner that prevents its "invalidation." See Zadvydas v.

10 Davis, 533 U.S. 678,689 (2001) ("We have read significant limitations into other immigration

11 statutes in order to avoid their constitutional invalidation.").

12

First, construing Section 1373 to cover the State's Confidentiality Statues would compel the

13 State to participate in the administration of a federal regulatory program of immigration

14 enforcement. See New York, 505 U.S. at 176, 188. The state statutes at issue here apply to

15 criminal and juvenile systems, which the State and local governments must provide for. To

16 comply with Defendants' apparent reading of Section 1373, the State Legislature, in setting

17 policy for those systems where the State's residents' immigration status information may be

18 relevant, would either have to make no assurances about the confidentiality of that information, or

19 affirmatively make exceptions to allow for disclosure to federal immigration authorities, even

20 when disclosure is prohibited in other instances. See Cal. Penal Code§§ 679.10-.11; Cal. Civ.

21 Proc. Code§ 155(c); Cal. Welf. & Inst. Code§§ 827, 831. Regardless of what the State does, it

22 would have to act in furtherance of a federal program that is not its own. Where the who le

23 purpose of some of these statutes is to encourage residents to report crimes (see, e.g., Cal. Penal

24 Code§§ 422.93, 679.1 0-.11), the enforcement of Section 1373 against these statutes would force

25 the State to surrender its own judgment regarding the importance of providing confidentiality

26 assurances to encourage the reporting of crime in favor of the federal government's preference

27 that federal immigration enforcement should prevail over all other concerns. This is "tantamount

28 to forced state legislation" and coercion to administer a federal program that the Tenth 18
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Amendment prohibits. See Koog, 79 F.3d at 458.

2

Second, construing Section 1373 in a manner to negate the State's Confidentiality Statutes

3 would make the "whole object of [Section 1373] to direct the functioning of the state executive,"

4 a state of affairs that the Supreme Court has found to destabilize the framework of dual

5 sovereignty ingrained in the Constitution. See Printz, 521 U.S . at 932. Whether Section 1373

6 could be enforced against a categorical prohibition on sharing of immigration status information

7 with federal immigration authorities, see City ofNew York v. United States, 179 F.3d 29, 35 (2d

8 Cir. 1999), is not at issue in this case. When applied to the State's Confidentiality Statutes,

9 however, Section 1373 directs action at the core of the State's sovereign power to make its own

I 0 determination about how to best address crime and public safety. See United States v. Morrison,

11 529 U.S. 598,618 (2000) ("[W]e can think of no better example ofthe police power, which the

12 founders denied the National Government and reposed in the States, than the suppression of

13 violent crime and vindication of its victims."). It is the State or its political subdivisions that have

14 the responsibility to certify U- or T-visa requests, receive reports from victims and witnesses of

15 crimes, and operate the juvenile court system. If applied to these statutes, Section 1373 would be

16 enforced against the use of information that "belongs to the State" and that is "available to [law

17 enforcement officers] only in their official capacity." Printz, 521 U.S. at 932 n.17 . Section 1373

18 is, thus, inevitably an "object .. . to direct the functioning of the State" if the statute is enforced

19 against these aspects of the State's sovereignty. See id. at 932; see also Romero v. United States,

20 883 F.Supp. 1076, 1086-87 (W.D. La. 1995) (holding Tenth Amendment limits Congress's ability

21 to preempt "state regulation for the maintenance of public order" where a statute "remove[d] [the

22 sherifrs] ability to perform certain tasks assigned him by the state which preserve the public

23 order and therefore remove their sovereign authority to maintain public order").

24

Third, construing Section 1373 to encompass the State's Confidentiality Statutes would

25 take away the State's discretion in establishing policies about how governmental employees may

26 handle private information about the State's residents within the custody and control of the State,

27 thus "worsen[ing] the intrusion upon state sovereignty." See Printz, 521 U.S. at 927-28. The

28 State has no blanket prohibition on government employees sharing immigration status 19
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information with federal immigration enforcement agents. Instead, the State has made nuanced

2 decisions regulating the specific circumstances where such information is protected from

3 disclosure in general (not solely as to immigration enforcement agents), and the limited class of

4 individuals to whom such protections apply. See Cal. Penal Code§§ 422.93 (limited to hate

5 crime victims and witnesses, who are not perpetrators of crime); 679.10-11 (limited to U- or T-

6 visa applicants); Cal. Civ. Proc. Code,§ 155(c) (limited to "Special Immigrant Juvenile"

7 applicants); Cal. Welf & Inst. Code§§ 827 & 831 (limiting disclosure ofjuvenile case files to all

8 except statutorily designated parties). The enforcement of Section 1373 as to these statutes would

9 weaken the State's ability to regulate the actions of their own governmental employees, see

10 Gregory, 501 U.S. at 160, and "foreclose[] the State[] from experimenting and exercising [its]

I 1 own judgment in an area to which States lay claim by right of history and expertise." See United

12 States v. Lopez, 514 U.S. 549,583 (1995). "Whatever the outer limits of state sovereignty may

13 be, it surely encompasses the right to set the duties of office for state-created officials and to

14 regulate the internal affairs of government bodies." Koog, 79 F.3d at 460 (citing PERC v.

15 Mississippi, 456 U.S. 742,761 (1982)).

16

Fourth, commandeering the State in the handling of its residents' personal information

17 undermines state and local accountability. The U.S. Constitution's structure of dual sovereignty

18 between the federal government and the states "reduce[s] the risk of tyranny and abuse from

19 either front." Printz, 521 U.S. at 921 (quoting Gregory, 501 U.S. at 458). Commandeering

20 forces the states to "bear the brunt of public disapproval." New York, 505 U.S. at 169. As the

21 Court warned in Printz, ''[t]he power of the Federal Government would be augmented

22 immeasurably if it were able to impress into its service-and at no cost to itself- the police

23 officers of the 50 States." 521 U.S. at 922. This is exactly what Defendants would be permitted

24 to accomplish if Section 1373 were construed to forbid states and localities from ensuring that

25 LEAs safeguard the confidentiality of victims' and witness' personal information. Should

26 Section 1373 be enforced as to the State's Confidentiality Statutes, some witnesses and victims

27 will be less inclined to report crimes, see RJN, Ex. V, and relationships between immigrant

28 communities and state and local officials would be strained. State and local governments would 20
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"face the brunt of public disapproval," rather than the Defendants who effectively coerced the

2 State and localities to act according to a federal program.

3

Although two federal courts have upheld Section 1373 against challenges of facial

4 unconstitutionality, neither ruling is dispositive to the issues presented in this case. In fact, both

5 decisions reflect significant concern about extending Section 1373 to apply to confidentiality

6 statutes such as those at issue here. In City ofChicago v. Sessions, No. 17-cv-5720 (N.D. Ill.

7 Sept. 15, 2017), while the district court held that there was a likelihood that Section 1373 was

8 facially constitutional, it also expressed concern about its potential applications. The court noted

9 that Section 1373 "mandate[s]" state and local governments to give employees the option of
10 providing information to federal immigration agents. 2017 WL 4081821, at *12. The court

11 found that the "practical" impact is that state and local governments are "limited [in their] ability

12 to decline to administer or enforce a federal regulatory program" and "extricate their state or

13 municipality's involvement in a federal program." !d.

14

In City ofNew York, the city argued that Section 1373 was facially unconstitutional, in part,

15 because it interfered with the use of confidential information and control over the city's

16 employees in a range of local government functions. The Second Circuit held Section 1373

17 facially constitutional, but recognized:

18

The City's concerns [about confidentiality] are not insubstantial. The obtaining of

pertinent information, which is essential to the performance of a wide variety of state

19

and local governmental functions, may in some cases be difficult or impossible if

some expectation of confidentiality is not preserved. Preserving confidentiality may

20

in tum require that state and loca£ governments regulate the use of such information

by their employees. 21

22 179 F.3d at 36. The Second Circuit acknowledged that the Tenth Amendment may limit Section

23 1373 from being "an impermissible intrusion on state and local power to control information

24 obtained in the course of official business or to regulate the duties and responsibilities of state and

25 local governmental employees," but it did not consider these arguments in earnest because the

26 city's executive order promoted a policy of "non-cooperation while allowing City employees to

27 share freely the infonnation in question with the rest of the world." See id. at 37. The Second

28 Circuit determined that the city was attempting to transform "the Tenth Amendment' s shield 21
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against the federal government's using state and local governments to enact and administer

2 federal programs into a sword allowing states and localities to engage in passive resistance that

3 frustrates federal programs." !d. at 35.

4

That is not so with the State's Confidentiality Statutes. They either generally prohibit

5 disclosure to a wide range of individuals, not just to federal agents, or narrowly tailor the segment

6 of the population that is protected. As a result, these statutes possess the qualities that eluded the

7 jurisdictions' facial challenges in City ofNew York and Chicago, and underscore the serious

8 constitutional issues that the Second Circuit and the Northern District of Illinois found troubling

9 in Section's 1373's practical application. See Chicago, 2017 WL 4081821, at *12 ("practically

10 limit[ing] the ability of state and local governments to decline to administer or enforce a fe deral

11 regulatory program" could "implicate the logic underlying the Printz decision") .

12

B. Section 1373 Does Not Conflict with The Plain Text of the TRUTH Act,

and Would Constitute Unconstitutional Commandeering if it Did

13

14

The TRUTH Act does not conflict with Section 1373 because it does not regulate the

15 sharing of"information regarding the citizenship or immigration status" of individuals. 8 U.S.C.

16 § 1373 (emphasis added). The TRUTH Act simply provides transparency surrounding inmates or

17 LEAs' interactions with ICE by requiring LEAs to notify inmates of their rights before they make

18 the voluntary decision of whether to speak to ICE. It does not fall within the ambit of Section

19 1373 because "no plausible reading of 'information regarding . .. citizenship or immigration

20 status"' encompasses requirements on LEAs to notify inmates of their rights before allowing ICE

21 access to interviews. See Steinle v. City & Cty. ofSan Francisco, 230 F. Supp. 3d 994, 101 5

22 (N.D. Cal. 2017). In addition, interpreting Section 1373 to encompass the TRUTH Act would

23 amount to unconstitutional commandeering for the reasons discussed supra III(A)(2), particularly

24 since the federal government would be compelling the State to not inform detainees ' of their

25 rights in furtherance of a federal immigration enforcement program. See Printz, 521 U.S. at 932;

26 New York, 505 U.S. at 176, 188.

27 Ill
28

22
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IV. WITHOUT COURT INTERVENTION, THE SECTION 1373 CONDITIONS WILL CAUSE
THE STATE IMMINENT AND IRREPARABLE HARM 2

3

"(C]onstitutional violation[s] alone, coupled with the damages incurred, can suffice to show

4 irreparable harm." Am. Trucking Ass 'ns, Inc. v. City ofLos Angeles, 559 F.3d 1046, 1058-59 (9th

5 Cir. 2009) (relying on Morales v. Trans World Airlines, Inc., 504 U.S. 374 (1992)). Moreover, 6 injuries where "sovereign interests and public policies [are] at stake" are irreparable. Kansas v.

7 United States, 249 F.3d 1213, 1228 (I Oth Cir. 2001).

8

California will suffer a constitutional injury to the State's sovereignty if Defendants

9 effectively coerce the State and its political subdivisions to carry out their federal immigration

10 enforcement agenda, particularly under their misinterpretation of Section 1373. A plaintiff can

11 suffer a constitutional injury by being forced either to comply with an unconstitutional law or else

12 face community and financial injury. See Am. Trucking Ass 'ns, Inc., 559 F.3d at 1058-59

13 (plaintiffs were injured where they were faced with the choice of signing unconstitutional

14 agreements or a loss of customer goodwill and significant business). Such is the case here where

15 the State is confronted with making an unqualified certification of compliance under penalty of

16 perjury under the shadow of Defendants' statements about the State's potential Section 1373 17 noncompliance and the preliminary noncompliance of other jurisdictions with similar policies. 12

18 See Morales, 504 U.S. at 380-81 (injunctive relief proper where "respondents were faced with a

19 Hobson's choice: continually violate the Texas law and expose themselves to potentially huge

20 liability; or violate the law once as a test case and suffer the injury of obeying the law during the

21 dependency of the proceedings").

22

Construing Section 1373 to invalidate the State's statutes will also cause real harm to our

23 communities, no matter what the State does. If the State changes its laws to comply with a

24 constitutionally impermissible interpretation of Section 1373, the relationship of trust that these

25 State statutes are intended to build between law enforcement and immigrant communities will

26 12 Even if the State submits a statement explaining why the State's laws comply with Section
27 1373, notwithstanding Defendants' apparent interpretation, the State still has to submit the
standard certification required by Defendants in order to receive funding, and Defendants may 28 deny the State funding on the basis of this explanatory statement.
23
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erode. See McDonnell Decl., 11 10, 12; San Francisco Compl., 1 28. Alternatively, if the State

2 preserves. its laws and Defendants cut millions of dollars in JAG funding that the State is

3 otherwise entitled to by statutory formula, the State would be unable to fund critical public safety

4 programs, see lolls Decl., ,1 19; Caligiuri Decl., ,1,119-22, and local jurisdictions' programs will 5 be detrimentally impacted, including the possibility that programs and staff positions will be
6 eliminated in their entirety. See McDonnell Decl., 11 8-9, 15; S.F. Compl., 1 46; see United
7 States v. North Carolina, 192 F. Supp. 3d 620, 629 (M.D.N.C. 20 16) (finding irreparable harm 8 where the lack of funds was "likely to have an immediate impact on [the state's] ability to provide

9 critical resources to the public, causing damage that would persist regardless of whether funding

10 [was] subsequently reinstated"). Furthermore, without any guidance from Defendants, BSCC

11 will be placed in the position of having to monitor subgrantees and repo rt them for having

12 policies that the State and/or the subgrantees determined benefit public safety. See RJN, Ex. J, 11

13 53(3), 54(1)(D); see also lolls Decl., 11 21-22.

14

The harm to the State from the loss of COPS grants is at least as immediate. USDOJ is

15 poised to "quickly" issue COPS awards and demand compliance with applicable laws, including

16 Section 1373, based on their apparent misreading ofthe statute. See supra at 11. IfCalDOJ does

17 not receive the COPS grants based on Defendants' interpretation of Section 1373 or they arc

18 conditioned based on this apparent misinterpretation, CalDOJ will be unable to fund task forces

19 and equipment that combat heroin and methamphetamine distribution, creating harm that will

20 extend to the local jurisdictions that those task forces serve. See Caligiuri Decl., ,, 10, 16.

21

The damages incurred here-the deprivation of constitutional rights, the loss of community

22 goodwill, decrease in public safety, and the loss ofmillions of dollars offunding-"sufficc to

23 show irreparable harm." See Am. Trucking Ass 'ns, Inc., 559 F.3d at I 058; Stuller, Inc. v. Steak N 24 Shake Enterprises, Inc., 695 F.3d 676, 680 (7th Cir. 2012) (injuries to goodwill not easily

25 measurable and often irreparable). These arc the same types of damages that the court in Chicago

26 recently found to be irreparable in enjoining other immigration enforcement related conditions for

27 JAG. See Chicago, 2017 WL 4081821, at* 12-14.

28 24
Plaintiff's Not. of Mot. and Motion for Preliminary Injunction; MPA in Support Thereof(l7-cv-470 1)

Case 3:17-cv-04701-WHO Document 17 Filed 10/31/17 Page 32 of 33

V. THE BALANCE OF HARDSHIPS FAVORS GRANTING A PRELIMINARY INJUNCTION

2

A party seeking a preliminary injunction "must establish ... that the balance of equities tips

3 in his favor, and that an injunction is in the public interest." Winter, 555 U.S . at 20. These two

4 factors merge when the government is a party. Nken v. Holder, 556 U.S . 418, 435 (2009). And

5 the balance of the hardships and public interest both favor "'prevent[ing] the violation of a party's

6 constitutional rights."' Ariz. Dream Act Coalition v. Brewer, 757 F.3d 1053, 1069 (9th Cir. 2014)

7 (quotingMelendres v. Arpaio, 695 F.3d 990, 1002 (9th Cir. 2012)).

8

Here, the balance of the hardships and the public interest favor an injunction. California

9 has determined that the public safety requires protecting its residents' personal information and

10 requires transparency about its participation in immigration enforcement. Defendants-who have

11 chosen to leave California in the dark about its position on the State's compliance, even when

12 providing clarity to other jurisdictions-are forcing California, under extreme time pressure, to

13 consider undermining these policies to avoid losing critical federal funding. An injunction

14 protects the public interest in shielding the State's sovereignty from unconstitutional conditions

15 without harm to the federal government's ability to enforce federal laws with federal resources.

16

The Government "is in no way harmed by issuance of a preliminary injunction which

17 prevents the [federal government] from enforcing restrictions likely to be found unconstitutional.

18 lf anything, the system is improved by such an injunction." See Giovani Carandola, Ltd. v.

19 Bason, 303 F.3d 507, 521 (4th Cir. 2002) (citation omitted). This is particularly true when an

20 injunction protects a State's interest in "the exercise of sovereign power over individuals and

21 entities within ... [their] jurisdiction that involves the power to create and enforce a legal code,

22 both civil and criminal." See Alfred L. Snapp & Son, Inc. v. Puerto Rico ex rei. Barez, 458 U.S.

23 592, 60 l ( 1982). The potential impact on numerous local jurisdictions further tips the balance of

24 interests. See, e.g., McDonnell Decl., ~ 8-9, 15; S.F. Compl., ,146. In contrast, Defendants face

25 no harm since the status quo would remain, and would only have to provide money that Congress

26 has already appropriated.

27

CONCLUSION

28

For the foregoing reasons, California requests this Court grant its Motion.

25

Plaintiffs Not. of Mot. and Motion for Preliminary Injunction; MPA in Support Thcreof(l7-cv-4701)

Case 3:17-cv-04701-WHO Document 17 Filed 10/31/17 Page 33 of 33

2 Dated: October 31, 2017 3 4 5 6 7

Respectfully Submitted,
XAVIER B ECERRA
Attorney General of California
ANGELA SIERRA
Senior Assistant Attorney General
SATOSHI YANAl
Supervising Deputy Attorney General S ARAH E. B ELTON Deputy Attorney General

8

Is/ LEE S HERMAN

9

Is/ LISA C. E HRLICH

LEE S HERMAN

10

LISA C. EHRLICH

Deputy Attorney General

11

Attorneys/or Plaintiff

State ofCalifornia

12

13

14

15

16

17

18

19

20.

21

22

23

24

25

26

27

28 26
Plaintiffs Not. of Mot. and Motion for Preliminary Injunction; MPA in Support Thereof (I 7-cv-470 I)

 
 Case 3:17-cv-04701-WHO Document 26 Filed 11/07/17 Page 1 of 36

1 XAVIER BECERRA Attorney General of California
2 ANGELA SIERRA Senior Assistant Attorney General
3 SATOSHI YANAI Supervising Deputy Attorney General
4 SARAH E. BELTON LISA C. EHRLICH
5 LEE SHERMAN (SBN 272271) Deputy Attorneys General
6 300 S. Spring St., Suite 1702 Los Angeles, CA 90013
7 Telephone: (213) 269-6404 Fax: (213) 879-7605
8 E-mail: Lee.Sherman@doj.ca.gov Attorneys for Plaintiff State of California
9

10

IN THE UNITED STATES DISTRICT COURT

11

FOR THE NORTHERN DISTRICT OF CALIFORNIA

12

SAN FRANCISCO DIVISION

13

14

STATE OF CALIFORNIA, ex rel, XAVIER Case No. 17-cv-4701

15 BECERRA, in his official capacity as

Attorney General of the State of California,

16

Plaintiff, PLAINTIFF STATE OF CALIFORNIA’S

17

NOTICE OF AMENDED MOTION AND

v.

AMENDED MOTION FOR

18

PRELIMINARY INJUNCTION;

MEMORANDUM OF POINTS AND

19 JEFFERSON B. SESSIONS, in his official AUTHORITIES IN SUPPORT THEREOF

capacity as Attorney General of the United

20 States; ALAN R. HANSON, in his official Date:

December 13, 2017

capacity as Acting Assistant Attorney

Time:

2:00 p.m.

21 General; UNITED STATES

Dept:

2

DEPARTMENT OF JUSTICE; and DOES Judge:

Honorable William H. Orrick

22 1-100,

Trial Date: None Set

Action Filed: 8/14/2017

23

Defendants.

24

25

26

27

28

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Case 3:17-cv-04701-WHO Document 26 Filed 11/07/17 Page 2 of 36

1

TABLE OF CONTENTS

2

Page

3

4 Notice of Amended Motion and Amended Motion for Preliminary Injunction ............................. 1 Memorandum of Points and Authorities ......................................................................................... 1
5 Introduction ……………………………………………………………………………………..1

6 Background ................................................................................................................................ 4

7

A. Section 1373 and the INA ........................................................................... 4

B. California’s Statutes .................................................................................... 5

8

1. The TRUST, TRUTH and Values Acts .......................................... 6

9

2. California’s Confidentiality Statutes............................................... 8

10

C. The History and Purpose of JAG ................................................................ 9

D. California’s Use of JAG and COPS Funds ............................................... 10

11

E. JAG and COPS Requirements in Relation to Section 1373...................... 12

12

F. Defendants’ Other Actions Threatening to Find the State in

Violation of Section 1373 ......................................................................... 13

13 Legal Argument ............................................................................................................................ 15

14 I.

Legal Standard ...................................................................................................... 15

15 II.

California is Likely to Succeed on Its Claims that the JAG Section 1373 Condition is Unlawful ........................................................................................... 15

16
17
18 III.
19

A. The JAG Section 1373 Condition Violates the Spending Clause Because it is Unrelated to the Purpose of JAG ......................................... 15
B. Imposition of the JAG Section 1373 Condition is Arbitrary and Capricious ................................................................................................. 16
California is Likely to Succeed in Showing that California’s Statutes Do Not Violate Section 1373 ............................................................................................. 17

20

A. The Values, TRUST, and TRUTH Acts Do Not Conflict with Section 1373.............................................................................................. 18

21

B. California’s Confidentiality Statutes Do Not Conflict with Section

1373........................................................................................................... 19

22

C. The Tenth Amendment Does Not Allow for Section 1373 to

23

Commandeer the State in its Control over Governmental Employees and its Residents’ Confidential Personal Information............ 20

24 IV. 25 V.

Without Court Intervention, the Section 1373 Conditions will Cause the State Imminent and Irreparable Harm............................................................................ 25
The Balance of Hardships Favors Granting a Preliminary Injunction .................. 27

26 Conclusion .................................................................................................................................... 28

27

28
i Plaintiff’s Not. of Am. Mot. and Am. Motion for Preliminary Injunction; MPA in Support Thereof (17-cv-4701)

Case 3:17-cv-04701-WHO Document 26 Filed 11/07/17 Page 3 of 36

1

TABLE OF AUTHORITIES

2 3 CASES

Page

4 Alfred L. Snapp & Son, Inc. v. Puerto Rico ex rel. Barez

5

458 U.S. 592 (1982) ..................................................................................................................28

6 Am. Trucking Ass’ns, Inc. v. City of Los Angeles 559 F.3d 1046 (9th Cir. 2009).......................................................................................25, 26, 27

7 Ariz. Dream Act Coalition v. Brewer

8

757 F.3d 1053 (9th Cir. 2014)...................................................................................................28

9 Arizona v. United States 567 U.S. 387 (2012) ..................................................................................................................16
10

11

Atascadero State Hospital v. Scanlon 473 U.S. 234 (1985) ..................................................................................................................20

12 Bond v. United States

13

134 S. Ct. 2077 (2014) ..............................................................................................................20

14 Cape May Greene, Inc. v. Warren 698 F.2d 179 (3d Cir. 1983)......................................................................................................17
15

16

Chamber of Commerce of U.S. v. Whiting 563 U.S. 582 (2011) ..................................................................................................................18

17 City of Chicago v. Sessions

18

No. 17-cv-5720, 2017 WL 4081821 (N.D. Ill. Sept. 15, 2017) ....................................24, 25, 27

19 City of New York v. United States

179 F.3d 29 (2d Cir. 1999)............................................................................................22, 24, 25 20

Cty. of Santa Clara v. Trump

21

250 F. Supp. 3d 497 (N.D. Cal. 2017) ......................................................................................15

22 Davis v. Mich. Dep’t. of Treasury

23

489 U.S. 803 (1989) ............................................................................................................19, 20

24 Encino Motorcars, LLC v. Navarro

136 S.Ct. 2117 (2016) ...............................................................................................................17

25

FCC v. Fox Television Stations, Inc.

26

556 U.S. 502 (2009) ............................................................................................................16, 17

27 FERC v. Mississippi

28

456 U.S. 742 (1982) ..................................................................................................................23

ii

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Case 3:17-cv-04701-WHO Document 26 Filed 11/07/17 Page 4 of 36

1

TABLE OF AUTHORITIES

(continued)

2

Page

3 Giovani Carandola, Ltd. v. Bason 303 F.3d 507 (4th Cir. 2002).....................................................................................................28
4

5

Gregory v. Ashcroft 501 U.S. 452 (1991) ............................................................................................................20, 23

6 Kansas v. United States

7

249 F.3d 1213 (10th Cir. 2001).................................................................................................25

8 Koog v. United States

79 F.3d 452 (5th Cir. 1996)...........................................................................................21, 22, 23 9

Massachusetts v. United States

10

435 U.S. 444 (1978) ..................................................................................................................15

11 Melendres v. Arpaio

12

695 F.3d 990 (9th Cir. 2012).....................................................................................................28

13 Morales v. Trans World Airlines

504 U.S. 374 (1992) ..................................................................................................................25 14

Motor Vehicle Mfrs. Ass’n of the U.S. v. State Farm Mut. Auto. Ins. Co.

15

463 U.S. 29 (1983) ..............................................................................................................16, 17

16 Nat’l Cable & Telecomms. Ass’n v. Brand X Internet Servs.

17

545 U.S. 967 (2005) ..................................................................................................................17

18 New York v. United States

505 U.S. 144 (1992) ......................................................................................................20, 21, 23

19

Nken v. Holder

20

556 U.S. 418 (2009) ..................................................................................................................27

21 Printz v. United States

22

521 U.S. 898 (1997) ................................................................................................20, 21, 22, 23

23 Raygor v. Regents of Univ. of Minn. 534 U.S. 533 (2002) ..................................................................................................................20

24

Romero v. United States

25

883 F. Supp. 1076 (W.D. La. 1994)..........................................................................................22

26 South Dakota v. Dole

27

483 U.S. 203 (1987) ..................................................................................................................15

28 iii
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Case 3:17-cv-04701-WHO Document 26 Filed 11/07/17 Page 5 of 36

1

TABLE OF AUTHORITIES

(continued)

2

Page

3 Steinle v. City & Cty. of San Francisco 230 F. Supp. 3d 994 (N.D. Cal. 2017) ......................................................................................18
4

5

Stuller, Inc. v. Steak N Shake Enterprises, Inc. 695 F.3d 676 (7th Cir. 2012).....................................................................................................27

6 Texas v. United States

7

No. 15-cv-151, 2016 WL 4138632 (N.D. Tex. Aug. 4, 2016)..................................................16

8 Trump v. Int’l Refugee Assistance Project

137 S.Ct. 2080 (2017) ...............................................................................................................15 9

United States v. Lopez

10

514 U.S. 549 (1995) ..................................................................................................................23

11 United States v. Morrison

12

529 U.S. 598 (2000) ..................................................................................................................22

13 United States v. North Carolina

192 F. Supp. 3d 620 (M.D.N.C. 2016)......................................................................................27 14

Univ. of Texas v. Camenisch

15

451 U.S. 390 (1981) ..................................................................................................................15

16 Winter v. Nat. Res. Def. Council, Inc.

17

555 U.S. 7 (2008) ................................................................................................................15, 27

18 Zadvydas v. Davis 533 U.S. 678 (2001) ..................................................................................................................21
19 FEDERAL STATUTES
20 5 U.S.C. § 706 .................................................................................................................................16
21
22 8 U.S.C. § 1101 ...........................................................................................................................5, 19
23 8 U.S.C. § 1367 ...........................................................................................................................5, 19
24 8 U.S.C. § 1373 ....................................................................................................................... passim

25 8 U.S.C. § 1644 .................................................................................................................................4

26 34 U.S.C. §§ 10151-58......................................................................................................................9

27 34 U.S.C. § 10152 .....................................................................................................................10, 16

28 iv
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Case 3:17-cv-04701-WHO Document 26 Filed 11/07/17 Page 6 of 36

1

TABLE OF AUTHORITIES

(continued)

2

Page

3 34 U.S.C. § 10153 ...........................................................................................................................10

4 34 U.S.C. § 10156 .............................................................................................................................9

5 CALIFORNIA STATUTES

6 Cal. Civ. Code

7

§ 1798.3.......................................................................................................................................7

8 Cal. Civ. Proc. Code

§ 155.................................................................................................................................. passim

9

Cal. Gov’t Code

10

§ 7282 .........................................................................................................................................6

11

§ 7282.5.......................................................................................................................................6 § 7282.5 (amended and chaptered on Oct. 5, 2017)..................................................7, 18, 21, 23

12

§ 7283.1.................................................................................................................................7, 21

§ 7284.2 (chaptered on Oct. 5, 2017)......................................................................................6, 7

13

§ 7284.6 (chaptered on Oct. 5, 2017)................................................................................ passim

14 Cal. Penal Code

15

§ 422.93............................................................................................................................. passim § 679.10............................................................................................................................. passim

16

§ 679.11............................................................................................................................. passim

17 Cal. Welf. & Inst. Code

§ 827.................................................................................................................................. passim

18

§ 831.................................................................................................................................. passim

19 CONSTITUTIONAL PROVISIONS

20 U. S. Const., art. I, § 8, cl. 4 ..............................................................................................................4

21 COURT RULES

22 Cal. R. of Ct. 5.552 ...........................................................................................................................9

23 OTHER AUTHORITIES

24

Anti-Drug Abuse Act of 1988, Pub. L. No. 100-690, 102 Stat. 4181 (1988) ...................................9

25

Dep’t of Commerce, Justice, and State, the Judiciary, and Related Agencies

26

Appropriations Act of 1996, Pub. L. No. 104-134, 110 Stat. 1321 (1996)...............................10

27 Illegal Immigration Reform and Immigrant Responsibility Act of 1996, Pub. L.

28

104-208, 110 Stat. 3009-546 (1996) ...........................................................................................5

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Case 3:17-cv-04701-WHO Document 26 Filed 11/07/17 Page 7 of 36

1

TABLE OF AUTHORITIES

(continued)

2

Page

3 Immigration Act of 1990, Pub. L. No. 101-649, 104 Stat. 4978 (1990) .........................................10

4 Technical Immigration and Naturalization Amendments of 1991, Pub. L. No. 102-

5

232, 105 Stat. 1733 (1991) ........................................................................................................10

6 Violence Against Women and Department of Justice Reauthorization Act of 2005, Pub. L. No. 109-162, 119 Stat. 2960 (2006) .............................................................................10
7

8

9

10

11

12

13

14

15

16

17

18

19

20

21

22

23

24

25

26

27

28 vi
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Case 3:17-cv-04701-WHO Document 26 Filed 11/07/17 Page 8 of 36

1

NOTICE OF AMENDED MOTION AND AMENDED MOTION FOR PRELIMINARY INJUNCTION

2

PLEASE TAKE NOTICE that on Wednesday, December 13, 2017, at 2:00 p.m. or as soon

3 thereafter as it may be heard before the Honorable William H. Orrick in Courtroom 2 of the U. S.

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

5 CA 94102, Plaintiff State of California, ex rel. Xavier Becerra, California Attorney General will

6 and does hereby move the Court pursuant to F.R.C.P. 65 for a preliminary injunction against

7 Defendants Attorney General Jefferson Sessions, Assistant Attorney General Alan Hanson, and

8 the United States Department of Justice, and their officers, agents, servants, employees, and

9 attorneys, and any other persons who are in active concert or participation with them.

10

California moves the Court to enter a preliminary injunction prohibiting Defendants from

11 requiring compliance with 8 U.S.C. § 1373 as a condition for the State and its political

12 subdivisions to receive funding pursuant to the Edward Byrne Memorial Justice Assistance Grant

13 (“JAG”) program. In addition, because the State’s laws comply with Section 1373, California

14 seeks an order enjoining Defendants from interpreting or enforcing Section 1373 in such a

15 manner to withhold, terminate, or claw-back funding from, or disbar or make ineligible, the State

16 or any of its political subdivisions that apply for JAG or Community Policing Services grants on

17 account of the following state statutes: California Government Code sections 7282 et seq., 7283

18 et seq., 7284 et seq., Penal Code sections 422.93, 679.10, 679.11, California Welfare and

19 Institutions Code sections 827 and 831, and California Code of Civil Procedure section 155. This

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

21 Authorities, the declarations, the Request for Judicial Notice, as well as the papers, evidence and

22 records on file, and any other written or oral evidence or argument as may be presented.

23

MEMORANDUM OF POINTS AND AUTHORITIES

24

INTRODUCTION

25

Plaintiff State of California, ex rel. Xavier Becerra, California Attorney General moves for

26 a preliminary injunction preventing Defendants from enforcing against the State and its political

27 subdivisions conditions requiring compliance with 8 U.S.C. § 1373 in order to receive $31.1

28 million in law enforcement funding pursuant to the Edward Byrne Memorial Justice Assistance 1
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Case 3:17-cv-04701-WHO Document 26 Filed 11/07/17 Page 9 of 36

1 Grant (“JAG”) and Community Oriented Policing Services (“COPS”) grants.1 Starting with

2 President Trump’s Executive Order No. 13768 directed at so-called “sanctuary jurisdictions,” that

3 has already been found likely unconstitutional, the Trump Administration has sought to interpret

4 and use Section 1373 in a constitutionally impermissible manner as a cudgel to force state and

5 local jurisdictions to acquiesce to the President’s immigration enforcement demands. Defendants

6 now require jurisdictions to certify compliance with Section 1373, a statute restricting federal,

7 state, and local jurisdictions from prohibiting the exchange of information regarding an

8 individual’s immigration and citizenship status, in order to receive grants that are unrelated to

9 immigration enforcement.

10

Although Defendants lack constitutional and legal authority to impose the Section 1373

11 condition for JAG, under normal circumstances there would be no dispute because the State’s

12 laws comply with Section 1373. To be sure, California has enacted one group of statutes that set

13 parameters for when and how state or local law enforcement agencies (“LEAs”) may engage in

14 immigration enforcement activities—such as prolonging an individual’s ordinary release on the

15 basis of a Department of Homeland Security (“DHS”) detainer request, notifying DHS agents of

16 an individual’s release date, and informing those detainees that DHS seeks to interview of their

17 rights. But these statutes do not touch upon the activities regulated by Section 1373. California

18 has also enacted confidentiality statutes that protect residents’ personal information, including

19 immigration status information, when the State has deemed such protection necessary to

20 effectuate State and local governmental activities. All of these statutes are designed to improve

21 the public safety of all Californians by promoting relationships of trust between the State and its

22 10 million foreign-born residents and their family members, and encourage victims and witnesses

23 of crime to come forward. Reading Section 1373 as applying to the first group of statutes would

24 conflict with the text of Section 1373, while reading Section 1373 as to California’s

25 confidentiality statutes would be inconsistent with the remainder of the Immigration and

26 1 The FY 2017 State and Local Solicitations for JAG are Exhibits A and B, respectively, to the
27 Request for Judicial Notice accompanying this Motion. The FY 2017 COPS Application Guides for the Anti-Methamphetamine Program and Anti-Heroin Task Forces are Exhibits C and D,
28 respectively, to the Judicial Notice Request. 2
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Case 3:17-cv-04701-WHO Document 26 Filed 11/07/17 Page 10 of 36

1 Naturalization Act (“INA”) and the federal government’s own handling of immigration status

2 information. And either would violate the Tenth Amendment of the U.S. Constitution.

3

Defendants have nevertheless indicated that at least one of California’s laws may be

4 incompatible with Section 1373, and that other jurisdictions’ statutes and policies similar to those

5 in California are incompatible with Section 1373. On October 12, 2017, Defendants announced

6 preliminary assessments with respect to seven jurisdictions from which Defendants sought legal

7 opinions validating their compliance with Section 1373. Defendants determined that five of the

8 jurisdictions had laws or policies that appear to violate Section 1373, including one jurisdiction

9 because it, like California, regulates the disclosure of information regarding victims of crime.

10

California too submitted a legal opinion that analyzed California’s laws and concluded that

11 the State does not violate Section 1373. The day after the State filed its initial Motion for

12 Preliminary Injunction (“PI Mot”), ECF No. 17, Defendants informed the State of their

13 determination that the recently adopted California Values Act, California Government Code

14 section 7284 et seq.,2 a law that has not taken effect yet, “may violate [Section 1373], depending

15 on how your jurisdiction interprets and applies [it].”3 Moreover, Defendants expressly stated that

16 they may take action on other California statutes. Defendants’ interpretation of Section 1373 as

17 communicated in that letter interferes with the State’s ability to submit an unqualified

18 certification of compliance with Section 1373, under penalty of perjury, that the State must do in

19 order to receive JAG funding. In addition, USDOJ will soon make awards for the COPS grants,

20 which Defendants will either deny to the State or demand that the State accept only if it assures

21 that it will comply with all applicable laws, which would include compliance with Defendants’

22 misinterpretation of Section 1373.

23

Defendants’ actions cause irreparable harm to the State’s sovereignty, public safety, and

24 operations. Congress has appropriated $28.3 million in JAG funding to California to support

25 2 All references to provisions in Government Code section 7284 et seq. refer to the law that was
26 chaptered on October 5, 2017, and is set to take effect on January 4, 2018.
27 3 Defendants’ November 1, 2017 letter, which seeks to enforce Section 1373 against the Values Act as to FY 2016 funds already awarded, although the law was not in effect in that fiscal year,
28 leaves no doubt that the Values Act and amended TRUST Act are ripe for determination here. 3
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Case 3:17-cv-04701-WHO Document 26 Filed 11/07/17 Page 11 of 36

1 criminal justice programs. Among other things, these programs support crime victims and

2 witnesses, reduce recidivism, facilitate crime prevention education for at-risk youth, and fund

3 other law enforcement programs. The State is also expected to receive $2.8 million pursuant to

4 two COPS grants, grants that the State has received every year they have existed, which are used

5 to investigate illicit drug distribution. Loss of these funds will harm public safety. But public

6 safety will also be harmed if the State and its political subdivisions must accede to Defendants’

7 demands in order to receive these federal dollars. Defendants’ misinterpretation of Section 1373

8 further means that Californians will not be able to hold their state and local officials appropriately

9 accountable for policy changes that are beyond their control—the very harm the Tenth

10 Amendment aims to prevent. To prevent these harms, a preliminary injunction is necessary.4

11

BACKGROUND

12

A. Section 1373 and the INA

13

The U.S. Constitution grants Congress the power to regulate immigration and

14 naturalization. See art. I, § 8, cl. 4. Congress has done so via the comprehensive framework

15 codified in the INA. Two provisions of the INA restrict federal, state, and local governments in

16 how they may control the exchange of information regarding an individual’s immigration and

17 citizenship status. The statute relevant to this litigation is 8 U.S.C. § 1373.5 Paragraph (a) of

18 Section 1373 provides as follows:

19

Notwithstanding any other provision of Federal, State, or local law, a Federal, State,

or local government entity or official may not prohibit, or in any way restrict, any

20

government entity or official from sending to, or receiving from [federal immigration

authorities] information regarding the citizenship or immigration status, lawful or

21

unlawful, of any individual.

22 Paragraph (b) forbids federal, state, or local governments from prohibiting the following: (i)

23 “[s]ending [immigration status] information to, or requesting or receiving such information from

24 4 California has also brought claims challenging Defendants’ imposition of conditions requiring jurisdictions to respond to DHS requests for inmates’ release dates and to provide DHS agents
25 access to detention facilities for interview purposes. See, e.g., FAC, ¶¶ 122-144. Those conditions are currently subject to a nationwide injunction. See City of Chicago v. Sessions, No.
26 17-cv-5720, ECF No. 78 (N.D. Ill. Sept. 15, 2017). California reserves its right to seek a preliminary injunction as to those conditions if the nationwide injunction is stayed or modified.
27 5 The other statute, 8 U.S.C. § 1644, exists in a chapter within the INA for “Restricting Welfare
28 and Public Benefits for Aliens” and contains restrictions that are encompassed by Section 1373.
4
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Case 3:17-cv-04701-WHO Document 26 Filed 11/07/17 Page 12 of 36

1 [federal immigration authorities];” (ii) “[m]aintaining such information;” or (iii) “[e]xchanging

2 such information with any other Federal, State, or local government entity.”

3

Other provisions of the INA provide information-sharing safeguards for certain vulnerable

4 immigrants, including those who are undocumented. For example, the INA offers protections and

5 benefits to victims and witnesses of crime by creating specialized U-visas for those who have

6 cooperated with law enforcement in investigating or prosecuting enumerated crimes such as

7 domestic violence and child abuse, and T-visas for those who have cooperated in prosecuting

8 human trafficking. Id. § 1101(a)(15)(T)-(U). Title 8, Section 1367, which was enacted as part of

9 the Illegal Immigration Reform and Immigrant Responsibility Act of 1996, Pub. L. No. 104-208,

10 110 Stat. 3009-546, the same Act that created Section 1373,6 generally prohibits the “use by or

11 disclosure” of any information provided during the process of applying for U- or T-visas, or other

12 benefits available for immigrant witnesses and victims of crime, “to anyone” other than identified

13 federal departments. See 8 U.S.C. § 1367(a)(1)-(2). It also prohibits using the information

14 provided to “make an adverse determination of admissibility or deportability” for the immigrant

15 victims and witnesses of crime. Id. The INA also details a “Special Immigrant Juvenile” process,

16 through which certain abused, neglected, or abandoned undocumented immigrant children may

17 seek legal immigration status. Id. § 1101(a)(27)(J). Federal law relies on state courts to make the

18 predicate determination for youth who are eligible to apply for this status. See id.

19

B. California’s Statutes

20

California’s laws are consistent with the INA. Relevant to this Motion are the State’s laws

21 impacted by Defendants’ interpretation of Section 1373, and arguably implicated by the Section

22 1373 conditions. These laws fit into two categories: (a) those laws that define the circumstances

23 under which LEAs may assist in immigration enforcement (the TRUTH, TRUST, and Values

24 Acts); and (b) six state statutes safeguarding confidentiality, the “State’s Confidentiality

25 Statutes”: Penal Code sections 422.93, 679.10, and 679.11, Welfare and Institutions Code

26 sections 827 and 831, and Code of Civil Procedure section 155.

27 6 Compare id. tit. III, § 384, 110 Stat. at 3009-652-53 with id. tit. VI, § 642, 110 Stat. at 3009707.
28 5
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1

California has enacted these statutes to strengthen community policing efforts.7 Exercising

2 its discretion, California has concluded that statutes like these improve public safety in light of

3 evidence that immigrants are no more likely to commit crimes than native-born Americans,8 and

4 that a clear distinction between local law enforcement and immigration enforcement results in

5 safer communities. See, e.g., RJN, Exs. F at 5, G at 8; W at 8. The California Legislature has

6 relied on law enforcement officers’ statements about the public safety benefits of practices that

7 reduce the entanglement between their agencies and immigration enforcement. See, e.g., RJN,

8 Exs. G at 9; X at 7. LEAs throughout the State continue to build trust between LEAs and

9 immigrant communities so that “people could come forward if they are a crime victim or . . .

10 witness to a crime without fear of being deported.” See Decl. of L.A. Cty. Sheriff Jim McDonnell

11 in Supp. of Pl.’s Am. Mot. for Prelim. Inj. (“McDonnell Decl.”), ¶¶ 10-13; see also Compl., City

12 and Cty. of San Francisco v. Sessions, No. 17-4642 (N.D. Cal. Aug. 11, 2017) (“S.F. Compl.”) ¶¶

13 19, 28. These laws and local practices protect the public safety of all Californians, regardless of

14 immigration status. See, e.g., Cal. Gov’t Code § 7284.2(f); RJN, Ex. X at 1.

15

1. The TRUST, TRUTH and Values Acts

16

In 2013, California enacted the TRUST Act, Cal. Gov’t Code § 7282 et seq., which defined

17 when local LEAs could detain an individual for up to 48 hours after the person’s ordinary release

18 on the basis of a detainer request. See id. §§ 7282(c), 7282.5. The TRUST Act allowed

19 compliance with detainers if they did not “violate any federal, state, or local law, or any local

20 policy,” and the subject possessed a specified criminal background (including a prior conviction

21 of one of hundreds of crimes), was on the California Sex and Arson Registry, or was held after a

22 magistrate’s finding of probable cause for a serious or violent felony. See id. § 7282.5(a).

23

Three years later, the State enacted the TRUTH Act, Cal. Gov’t Code § 7283 et seq., which

24 increased transparency about local LEA’s involvement when federal immigration authorities seek

25 to interview someone in a jail’s custody. Under the TRUTH Act, a jail must notify such an

26 7 See, e.g., Cal. Gov’t Code § 7284.2(c); 2016 Cal. Legis. Serv. Ch. 768 § 2(i) (the “TRUTH
27 Act”); 2013 Cal. Legis. Serv. Ch. 570 § 1(d) (the “TRUST Act”); Cal. Penal Code § 422.93(a).
28 8 See, e.g., 2013 Cal. Legis. Serv. Ch. 570 § 1(d) (the “TRUST Act”); RJN, Ex. E at 6. 6
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1 individual that interviews are voluntary and the detainee has the right to seek counsel. Id. §

2 7283.1(a). Upon receipt of a detainer, notification, or transfer request, a LEA must provide the

3 subject a copy and inform him or her whether the LEA intends to comply. Id. § 7283.1(b).

4

On October 5, 2017, Governor Edmund G. Brown signed into law the California Values

5 Act, Cal. Gov’t Code § 7284 et seq., intended “to ensure effective policing, to protect the safety,

6 well-being, and constitutional rights of the people of California, and to direct the state’s limited

7 resources to matters of greatest concern to state and local governments.” Id. § 7284.2(f). The

8 Values Act accomplishes these goals by generally prohibiting “[i]nquiri[es] into an individual’s

9 immigration status,” meaning LEAs cannot ask an individual about his or her immigration status

10 for immigration enforcement purposes. See id. § 7284.6(a)(1)(A). In order to ensure compliance

11 with federal court decisions that have found Fourth Amendment violations when law enforcement

12 holds inmates beyond their ordinary release pursuant to a warrantless detainer request, the Values

13 Act prohibits compliance with such requests. See id. §§ 7284.2(e), 7284.6(a)(1)(B). The Values

14 Act amends the TRUST Act to define when LEAs have discretion to respond to “notification

15 requests,” which are requests by an immigration authority asking an LEA to inform it “of the

16 release date and time in advance of the public of an individual in its custody.” See id. §§

17 7282.5(a) (chaptered Oct. 5, 2017), 7283(f), 7284.6(a)(1)(C). LEAs may notify immigration

18 authorities about the release dates of individuals with a prior criminal conviction of one of

19 hundreds of crimes, or if the information is already “available to the public.” See id. §

20 7284.6(a)(1)(C). The Values Act also prohibits the use of LEA money or personnel to “provid[e]

21 personal information,” about an individual “for immigration enforcement purposes,” unless that

22 information is “available to the public.”9 Id. § 7284.6(a)(1)(D). This “personal information”

23 includes information about victims and witnesses of crime that a LEA would also possess.

24

Notwithstanding any of the above, the Values Act contains a savings clause that expressly

25 permits compliance with all aspects of Section 1373:

26 9 “Personal information” is defined as “any information that is maintained by an agency that identifies or describes an individual, including, but not limited to, his or her name, social security
27 number, physical description, home address, home telephone number, education, financial matters, and medical or employment history. It includes statements made by, or attributed to, the
28 individual.” Cal. Civ. Code § 1798.3(a). 7
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1

This section does not prohibit or restrict any government entity or official from

sending to, or receiving from, federal immigration authorities, information regarding

2

the citizenship or immigration status, lawful or unlawful, of an individual, or from

requesting from federal immigration authorities immigration status information,

3

lawful or unlawful, of any individual, or maintaining or exchanging that information

with any other federal, state, or local government entity, pursuant to Sections 1373

4

and 1644 of title 8 of the United States Code.

5 Id. § 7284.6(e). The Values Act also explicitly does not prohibit any jurisdiction from allowing

6 immigration authorities access to jails. Id. § 7284.6(b)(5).

7

2. California’s Confidentiality Statutes

8

To ensure the proper operation of state and local criminal and juvenile justice systems, the

9 State’s Confidentiality Statues protect, in discrete circumstances, the confidentiality of sensitive

10 information that the State and its localities collect and maintain. These Confidentiality Statutes

11 can be broken down into two subcategories. The first subcategory (Cal. Penal Code §§ 422.93,

12 679.10, 679.11) consists of statutes that protect the confidential information of victims and

13 witnesses of crime, in order to “encourag[e]” “victims of or witnesses to crime, or [those] who 14 otherwise can give evidence in a criminal investigation, to cooperate with the criminal justice 15 system.” See, e.g., id. § 422.93(a). California Penal Code sections 679.10 and 679.11 implement 16 the state and local LEA’s role in the federal U- and T-visa process by, among other things, 17 prohibiting certifying entities from “disclosing the immigration status of a victim” or other person 18 requesting certification “except to comply with federal law or legal process, or if authorized by 19 the victim or person requesting [the certification form].” Id. §§ 679.10(k), 679.11(k). These 20 confidentiality protections impact thousands of immigrants who come forward to cooperate with 21 law enforcement. For example, in 2016, the year Section 679.10 came into effect for U-visa

22 applicants, L.A. County Sheriff’s Department received double the number of U-visa applications

23 from the year before (954 in total, 80 percent of which were certified), and in 2017, L.A. County

24 has already processed 774 applications, 90 percent of which have been certified. McDonnell 25 Decl., ¶ 14. The third state statute in this subcategory, Penal Code section 422.93, protects hate26 crime victims or witnesses who are “not charged with or convicted of committing any crime 27 under State law” by prohibiting law enforcement from “detain[ing] the individual exclusively for

28 8
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1 any actual or suspected immigration violation or report[ing] or turn[ing] the individual over to

2 federal immigration authorities.” Cal. Penal Code § 422.93(b).

3

The second subcategory of statutes (Cal. Welf. & Inst. Code §§ 827, 831; Cal. Civ. Proc.

4 Code § 155) protects the confidential information of youth in the State’s juvenile court system.

5 The Legislature determined that “[c]onfidentiality is integral to the operation of the juvenile

6 system in order to avoid stigma and promote rehabilitation for all youth.” Cal. Welf. & Inst.

7 Code § 831(a). As a general rule, juvenile court records and the information therein is

8 confidential except to statutorily designated parties. Id. § 827; see also Cal. R. of Ct. 5.552(b)-

9 (c). Consistent with that general requirement, the State implemented its role in the federal Special

10 Immigrant Juvenile process, through its dependency court system, by directing that “information

11 regarding the child’s immigration status . . . remain confidential and shall be available for

12 inspection only” to a handful of enumerated parties. Cal. Civ. Proc. Code § 155(c). Information

13 about a child’s immigration status in any juvenile court proceeding must “remain confidential”

14 just like all other information in the youth’s court records. See Cal. Welf. & Inst. Code § 831(e).

15

C. The History and Purpose of JAG

16

JAG is a formula grant authorized by Congress and administered by OJP. 34 U.S.C. §§

17 10151-58. The statutory formula guarantees to each state a minimum allocation based on the

18 state’s population and violent crime rate. Id. § 10156(a). Sixty percent of a state’s total

19 allocation goes directly to the state and the remainder goes directly to local governments. Id. §

20 10156(b)(1), (d).

21

The current JAG program descended from two earlier programs. Congress created the

22 Edward Byrne Memorial State and Local Law Enforcement Assistance Program grants (“Byrne

23 Grants”) as part of the Anti-Drug Abuse Act of 1988. The purpose was “to assist States and units

24 of local government in carrying out specific programs which offer a high probability of

25 improving the functioning of the criminal justice system.” Anti-Drug Abuse Act of 1988, Pub. L.

26 No. 100-690, tit. VI, § 6091(a), 102 Stat. 4181, 4329 (1988). Between 1988 and 2006, Congress

27 identified 29 purposes for which Byrne Grants could be used. See 42 U.S.C. § 3751(b) (Dec.

28 2000) (as it existed on Jan. 4, 2006). Separately, Congress identified nine purposes for Local 9
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1 Law Enforcement Block Grants (“LLEBG”).10 Immigration enforcement never appeared as a

2 purpose for either the Byrne Grants or LLEBG.11

3

In 2006, Congress merged Byrne Grant and LLEBG, creating the current JAG program,

4 Pub. L. No. 109-162, 119 Stat. 2960, 3094 (2006), to provide state and local governments “more

5 flexibility to spend money for programs that work for them rather than to impose a ‘one size fits’

6 all solution.” to local law enforcement. H.R., Rep. No. 109-233, at 89 (2005). Following that

7 merger, Congress consolidated the “purpose areas” down to eight: (A) law enforcement

8 programs; (B) prosecution and court programs; (C) prevention and education programs; (D)

9 corrections and community corrections programs; (E) drug treatment and enforcement programs;

10 (F) planning, evaluation, and technology improvement programs; (G) crime victim and witness

11 programs; and (H) mental health programs. 34 U.S.C. § 10152(a)(1).

12

Congress never created a “purpose area” of immigration enforcement in either the former or

13 current iterations of JAG. Only one immigration-related requirement ever existed in any iteration

14 of the JAG authorizing statute: a requirement that the chief executive officer of the recipient state

15 provide certified records of “criminal convictions of aliens.”12 Congress repealed that

16 requirement in the 2006 merger that created the current JAG program. See 34 U.S.C. § 10153(a).

17

D. California’s Use of JAG and COPS Funds

18

California’s Board of State and Community Corrections (“BSCC”) is the State entity that

19 receives California’s allocation of JAG’s formula grant funds. The State has received $252.7

20 million pursuant to JAG since 2006, excluding funding that the federal government granted

21 directly to the State’s local jurisdictions. See Decl. of Mary Jolls in Supp. of Pl.’s Am. Mot. for

22 Prelim. Inj. (“Jolls Decl.”), ¶ 7. Based on the statutory formula, California is expected to receive

23 10 Local Government Law Enforcement Block Grants Act of 1995, H.R. 728, 104th Cong. (1995)
24 first authorized as part of the Dep’t of Commerce, Justice, and State, the Judiciary, and Related Agencies Appropriations Act of 1996, Pub. L. No. 104-134, tit. I, 110 Stat. 1321, 1321-12 (1996).
25 11 See Decl. of Lee Sherman in Supp. of Pl.’s Mot. for Prelim. Inj. (“Sherman Decl.”) Exs. H
26 (identifying the 29 Byrne Grant purposes), I (identifying the 9 LLEBG purposes).
27 12 Immigration Act of 1990, Pub. L. No. 101-649, tit. V, § 507(a), 104 Stat. 4978, 5050-51 (1990); Miscellaneous and Technical Immigration and Naturalization Amendments of 1991, Pub.
28 L. No. 102-232, tit. III, § 306(a)(6), 105 Stat. 1733, 1751 (1991) (repealed 2006). 10
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1 approximately $28.3 million in JAG funding in FY 2017, with $17.7 million going to the BSCC.

2 Id. ¶ 5. The BSCC uses the State’s share of the JAG award to issue subgrants to jurisdictions that

3 propose using the funds for education and crime prevention programs, law enforcement

4 programs, and court programs, including toward the goals of improving educational outcomes,

5 increasing graduation rates, curbing truancy, reducing substance abuse, and curtailing

6 delinquency and recidivism for at-risk youth and young adults. Id. ¶¶ 8, 10 & Ex. A. For

7 example, L.A. County uses JAG funding to support anti-drug trafficking programs and

8 investigations, intervention programs for vulnerable youth, mental health programs, and anti-gang

9 enforcement activities. McDonnell Decl., ¶¶ 4-9. The City and County of San Francisco relies

10 on JAG to fund, among other thing, projects that seek to reduce recidivism by providing an

11 alternative to suspension and other services for at-risk juveniles and young adults. S.F. Compl., ¶¶

12 42-45. The BSCC currently funds programs for 32 local jurisdictions, as well as the California

13 Department of Justice (“CalDOJ”) to support task forces focused on criminal drug enforcement,

14 violent crime, and gang activity. Jolls Decl., ¶ 10; Decl. of Christopher Caligiuri in Supp. of Pl.’s

15 Am. Mot. for Prelim. Inj. (“Caligiuri Decl.”), ¶¶ 19-21. The BSCC plans on using FY 2017 JAG

16 funds to support programs similar to those that it has funded in the past. Jolls Decl., ¶ 11.

17

The Division of Law Enforcement (“DLE”) within CalDOJ is the State entity that receives

18 COPS competitive grants. Since the inception of the COPS program, CalDOJ has received over

19 $11 million to support law enforcement efforts around the State, including work on multi-

20 jurisdictional task forces. Caligiuri Decl., ¶ 4. For this fiscal year, CalDOJ applied for two COPS

21 grants worth $2.8 million. See id. ¶¶ 10, 16. CalDOJ applied for the COPS Anti-

22 Methamphetamine Program (“CAMP”) grant to cover salaries, benefits, and other costs to

23 continue the State’s leadership in a task force whose targeted enforcement against large-scale

24 methamphetamine drug trafficking organizations has resulted in the seizure of upwards of $60

25 million of methamphetamine, cocaine, and heroin. See id. ¶¶ 6-8, 10. CalDOJ also applied for

26 the COPS Anti-Heroin Task Force (“AHTF”) grant to cover equipment, including potentially-

27 lifesaving TruNarc handheld narcotics analyzers, consultants, and other costs in support of 14

28 heroin-related task forces that conduct large scale heroin investigations, share data and 11
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1 intelligence among law enforcement personnel throughout the State, and hold education sessions

2 in the community about drug abuse awareness. See id. ¶¶ 12-14, 16. CalDOJ has been awarded

3 CAMP and AHTF grants for each year these programs have been in existence. Id. ¶¶ 5, 12.

4

E. JAG and COPS Requirements in Relation to Section 1373

5

In FY 2016, USDOJ declared Section 1373 an “applicable law” for JAG, RJN, Ex. H, and

6 specifically required BSCC to submit a legal opinion validating its compliance with Section 1373.

7 Jolls Decl., Ex. B, ¶ 55. For FY 2017, Defendants announced that all jurisdictions receiving JAG

8 funds must certify compliance with Section 1373. E.g., RJN, Ex. A at 1, Ex. B at 1. Each grant

9 recipient’s chief law officer, the Attorney General in the State’s case, must sign a standard

10 affidavit, under penalty of perjury, affirming compliance with Section 1373 on behalf of the State

11 and “any entity, agency, or official” of the State as applicable to the “program or activity to be

12 funded.” RJN, Ex. A, Appx. II. The grant recipient’s chief executive officer, the Governor in the

13 State’s case, must adopt that certification, under penalty of perjury. Id., Appx. I. Grant recipients

14 must collect Section 1373 certifications from all subgrant recipients before issuing an award.

15 RJN, Ex. J, ¶ 53(2). In addition, USDOJ’s represented final award conditions require grantees to

16 monitor their subgrantees’ compliance with Section 1373 and to promptly notify OJP if any

17 subgrantee does not comply. Id. ¶¶ 53(3), 54(1)(D). USDOJ’s Financial Guide explains that

18 jurisdictions “have 45 days from the award date to accept [an] OJP . . . award document or the

19 award may be rescinded,” which includes the requisite certifications. See RJN, Ex. K, § 2.2.

20

USDOJ announced that COPS applicants for 2017 must execute a similar Section 1373

21 certification of compliance with respect to the “program or activity to be funded.” RJN, Ex. C at

22 2 & Appx. D; Ex. D at 1-2 & Appx. D. CalDOJ submitted its applications with the executed

23 certifications for AHTF and CAMP on July 7 and 10, respectively. Caligiuri Decl., ¶¶ 9, 15 &

24 Exs. B, D. As part of their applications, DLE included a supplemental statement by CalDOJ in

25 connection with the COPS Section 1373 Certifications. Id. There, CalDOJ clarified that the

26 COPS Section 1373 Certifications were made “as that federal statute is lawfully interpreted,” and

27 reserved its rights to challenge “any unconstitutional enforcement of Section 1373.” Id., Exs. B,

28 D. On September 7, 2017, USDOJ communicated to applicants that it was “committed” to 12
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1 “announcing this year’s award recipients as quickly as possible.” Sherman Decl., Ex. J. As has

2 been required in years’ past, once CAMP and AHTF COPS awards are announced, recipients will

3 have to execute award conditions certifying that they will comply with all applicable laws, which

4 includes Section 1373. See Caligiuri Decl., ¶¶ 5, 13 & Exs. A, ¶ 1, C, ¶ 1. On October 23, 2017,

5 USDOJ announced COPS awards for other programs, RJN, Ex. L, but as of the date of this filing,

6 DLE has not received any response to its applications. See id. ¶¶ 11, 17.

7

F. Defendants’ Other Actions Threatening to Find the State in Violation of

Section 1373 8

9

On April 21, 2017, Defendants sent letters to nine jurisdictions that received the JAG award

10 in 2016, including the BSCC, demanding they submit an official legal opinion validating their

11 compliance with Section 1373. RJN, Exs. I, M. That same day, Defendants Sessions and USDOJ

12 both stated that the State of California has laws “that potentially violate 8 U.S.C. § 1373,” relying

13 on an Office of Inspector General Report.13 RJN, Exs. M, N. On June 29, the BSCC submitted

14 the requested legal opinion explaining the State’s laws do not violate Section 1373, focusing on

15 the applications of Section 1373 discussed in that OIG Report. See Jolls Decl., Ex. C.

16

In August 2017, Defendants informed two of the nine jurisdictions that they comply with

17 Section 1373. On October 12, 2017, Defendants announced that they made preliminary

18 compliance assessments on six of the other jurisdictions (plus one other jurisdiction). See RJN,

19 Ex. Q. Defendants announced that they found no evidence of non-compliance with Section 1373

20 as to two jurisdictions, and preliminarily determined that the remaining five appeared not to

21 comply with Section 1373. Id. For one jurisdiction’s negative preliminary determination,

22 Defendants based their determination, in part, on the jurisdiction’s protections against the

23 disclosure of crime victims’ information, see RJN, Ex. R at 1-2, which California’s laws also

24 protect against in some instances.

25

26 13 Defendants are incorrect in claiming that the OIG Report found California in “potential” violation of Section 1373. The State of California was identified in the OIG report, in large part,
27 because of the relatively large amount of money it receives in federal funding from USDOJ. See RJN, Ex. O at 3. While the OIG Report commented about some jurisdictions’ compliance with
28 Section 1373, the report did not discuss in detail California’s law as it existed at that time. 13
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1

Having not received a preliminary assessment letter, on October 31, California filed its

2 initial PI Motion to prevent enforcement of the Section 1373 conditions as to the TRUTH Act and

3 the State’s Confidentiality Statutes, but not the laws that have yet to go in effect. On November

4 1, Defendants sent the State a preliminary compliance assessment letter asserting that three

5 provisions of the Values Act may “violate 8 U.S.C. § 1373, depending on how [the State]

6 interprets and applies them.” RJN, Ex. P at 1. Those are the provisions regulating: (i) inquiries

7 into an individual’s immigration status (Gov’t Code, § 7284.6(a)(1)(A)); (ii) responses to

8 notification requests (id. § 7284.6(a)(1)(C)); and (iii) the sharing of “personal information” (id. §

9 7284.6(a)(1)(D)). RJN, Ex. P at 1-2. As to the first provision, Defendants said that to comply

10 with Section 1373, the State must certify it interprets that provision as “not restrict[ing] California

11 officers and employees from requesting information regarding immigration status from federal

12 immigration officers.” Id. at 2. For the notification request and personal information provisions

13 to comply with Section 1373, Defendants said the State must certify it “interprets and applies

14 these provisions to not restrict California officers from sharing information regarding immigration

15 status with federal immigration officers, including information regarding release date[s] and

16 home address[es].” Id. at 1. If the State cannot so “certify,” then “[USDOJ] has determined that

17 these provisions violate [Section 1373].” Id at 1-2. Defendants further “reserve[d] [their] right to

18 identify additional bases of potential violation of 8 U.S.C. § 1373.” Id. at 2.

19

The Administration has made additional statements suggesting it has an even broader

20 interpretation of Section 1373 than communicated in the preliminary assessment letters, and a

21 misunderstanding about California’s laws. On June 13, 2017, the Acting Director of Immigration

22 and Customs Enforcement (“ICE”), Thomas Homan, testified before Congress that jurisdictions

23 that “have some sort of policy where they don’t . . . allow [ICE] access to the jails” violate

24 Section 1373. See RJN, Ex. S at 35, 47-48. Although California’s TRUTH Act does not prohibit

25 LEAs from providing such access, Defendant Sessions has stated that “the State of California . . .

26 [has] enacted statutes . . . designed to specifically prohibit or hinder ICE from enforcing

27 immigration law by . . . denying requests by ICE officers and agents to enter prisons and jails to

28 make arrests.” RJN, Ex. T at 2. 14
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1

LEGAL ARGUMENT

2 I.

LEGAL STANDARD

3

“The purpose of a preliminary injunction is merely to preserve the relative position of the

4 parties until a trial on the merits can be held.” Univ. of Texas v. Camenisch, 451 U.S. 390, 395

5 (1981). “A plaintiff seeking a preliminary injunction must establish that he is likely to succeed on

6 the merits, that he is likely to suffer irreparable harm in the absence of preliminary relief, that the

7 balance of equities tips in his favor, and that an injunction is in the public interest.” Winter v.

8 Nat. Res. Def. Council, Inc., 555 U.S. 7, 20 (2008). A preliminary injunction is “often dependent

9 as much on the equities of [the] case as the substance of the legal issues it presents.” Trump v.

10 Int’l Refugee Assistance Project, 137 S.Ct. 2080, 2087 (2017).

11 II. CALIFORNIA IS LIKELY TO SUCCEED ON ITS CLAIMS THAT THE JAG SECTION 1373 CONDITION IS UNLAWFUL
12

13

Before considering whether California’s laws comply with Section 1373, the Court must

14 first determine whether Defendants may even lawfully impose the JAG Section 1373 Condition.

15 They cannot: the State is likely to succeed on its claims that this Section 1373 Condition violates

16 the Spending Clause and is arbitrary and capricious under the Administrative Procedure Act.

17

A. The JAG Section 1373 Condition Violates the Spending Clause Because it

is Unrelated to the Purpose of JAG

18

19

Congress may only use its spending power to place conditions on federal funds that are

20 related “‘to the federal interest in particular national projects or programs.’” South Dakota v.

21 Dole, 483 U.S. 203, 207 (1987) (quoting Massachusetts v. United States, 435 U.S. 444, 461

22 (1978)). This Court has determined that the same test applies when the Executive Branch

23 imposes a condition by purported delegation from Congress, and that “funds conditioned on

24 compliance with Section 1373 must have some nexus to immigration enforcement.” See Cty. of

25 Santa Clara v. Trump, 250 F. Supp. 3d 497, 532 (N.D. Cal. 2017).

26

Section 1373 has no such nexus to the JAG program. Congress has never identified

27 immigration enforcement as a “purpose area” for JAG, and repealed the only immigration-

28 enforcement related condition that it had ever authorized for JAG funding. Supra at 9-10. The 15
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1 present statute identifies eight purpose areas for JAG, which the State predominantly uses to fund

2 community policing initiatives for crime prevention and education for at-risk youth, drug

3 treatment and enforcement, and mental health programs. See Jolls Decl., ¶¶ 8, 10.

4

Congress has been clear in identifying these as purposes areas to fund “criminal justice”

5 initiatives, 34 U.S.C. § 10152, (emphasis added), whereas, immigration enforcement is generally

6 civil in nature and predominantly the responsibility of the federal government. See Arizona v.

7 United States, 567 U.S. 387, 396 (2012). In reinforcement of this distinction, the only

8 immigration enforcement related condition that ever existed for JAG required jurisdictions to

9 provide records for “criminal convictions of aliens.” Supra at 10. The Executive Branch’s

10 unilateral act to add Section 1373 as an “applicable law” violates the nexus prong of the Spending

11 Clause as it requires state and local jurisdictions to comply with a condition to support a different

12 program (the federal government’s civil immigration priorities) than the “criminal justice”

13 program being funded. 34 U.S.C. §§ 10152; see Texas v. United States, No. 15-cv-151, 2016 WL

14 4138632, at *17 (N.D. Tex. Aug. 4, 2016) (holding that a Spending Clause claim was viable

15 because a challenged health insurance fee was not “‘directly related,’ let alone ‘reasonably

16 related’” to Medicaid since its purpose was to fund a different federal program).

17

B. Imposition of the JAG Section 1373 Condition is Arbitrary and Capricious

18

Defendants’ identification of Section 1373 as an “applicable law” for JAG is arbitrary and

19 capricious in violation of the Administrative Procedure Act. 5 U.S.C. § 706(2)(A). “[A]n agency

20 must cogently explain why it has exercised its discretion in a given manner.” Motor Vehicle

21 Mfrs. Ass’n of the U.S. v. State Farm Mut. Auto. Ins. Co., 463 U.S. 29, 48 (1983). Before 2016,

22 JAG was never linked to Section 1373 at any point in the nearly twenty years that Section 1373

23 has been law. In response to an inquiry by one Congressman, and without providing any

24 evidence that Congress intended for immigration enforcement to be a purpose area for JAG, in

25 2016, USDOJ declared Section 1373 an “applicable law,” with which JAG recipients must

26 comply. See RJN, Ex. H. At no point, either for FY 2016 or 2017, have Defendants “show[n]

27 that there are good reasons for the new policy.” FCC v. Fox Television Stations, Inc., 556 U.S.

28 16
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1 502, 515 (2009); see also State Farm, 463 U.S. at 50 (“It is well established that an agency’s

2 action must be upheld, if at all, on the basis articulated by the agency itself.”).

3

Indeed, Defendants have put forth nothing—no studies, no reports, no analysis—to support

4 the JAG Section 1373 Condition. The OIG Report does not discuss or contemplate how the

5 Section 1373 Condition is consistent with the underlying goals of JAG, or Congress’ intent in

6 adopting JAG. See Nat’l Cable & Telecomms. Ass’n v. Brand X Internet Servs., 545 U.S. 967,

7 981 (2005) (“Unexplained inconsistency is. . . a reason for holding an interpretation to be an

8 arbitrary and capricious change from agency practice under the Administrative Procedure Act.”);

9 Cape May Greene, Inc. v. Warren, 698 F.2d 179, 186-87 (3d Cir. 1983) (invalidating agency

10 action on grant conditions as arbitrary and capricious where the agency sought “to accomplish

11 matters not included in that statute”). Neither do the JAG Solicitations. A general recitation of

12 “Border Security” as an area of emphasis in the JAG Solicitations, RJN, Ex. A at 11, falls “short

13 of the agency’s duty to explain why it deemed it necessary to overrule its previous position,”

14 particularly where Congress never identified Border Security as a purpose. Encino Motorcars,

15 LLC v. Navarro, 136 S.Ct. 2117, 2125, 2126 (2016); see id. (“Agencies are free to change their

16 existing policies as long as they provide a reasoned explanation for the change.”).

17

There is also nothing to suggest that Defendants considered the empirical evidence and law

18 enforcement perspectives that jurisdictions around the country, including the State and its

19 political subdivisions, have relied upon in exercise of their sovereign discretion, that policies that

20 build trust and cooperation with immigrant communities result in positive criminal enforcement

21 and safety outcomes. See, e.g., RJN, Exs. E-G, X; McDonnell Decl., ¶ 12; S.F. Compl., ¶ 28; see

22 also State Farm, 463 U.S. at 43 (“Normally, an agency rule would be arbitrary and capricious if

23 the agency has . . . entirely failed to consider an important aspect of the problem. . . .”).

24 III. CALIFORNIA IS LIKELY TO SUCCEED IN SHOWING THAT CALIFORNIA’S STATUTES DO NOT VIOLATE SECTION 1373
25

26

Even if the JAG Section 1373 Condition is lawful, the State is likely to succeed in showing

27 that the applicable state statutes do not conflict with Section 1373, or, alternatively, Section 1373

28 cannot be enforced against those statutes, which is relevant to both JAG and COPS. The Values, 17
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1 TRUST, and TRUTH Acts do not regulate the activities covered by Section 1373. The State’s

2 Confidentiality Statutes do not conflict with Section 1373 when read in the context of the rest of

3 the INA. And reading Section 1373 to invalidate all of these statutes would constitute

4 unconstitutional commandeering that the Tenth Amendment prohibits.

5

A. The Values, TRUST, and TRUTH Acts Do Not Conflict with Section 1373

6

The TRUST, TRUTH, and Values Acts do not conflict with Section 1373 because they do

7 not regulate the sharing of “information regarding the citizenship or immigration status” of

8 individuals. 8 U.S.C. § 1373. The TRUTH Act simply provides transparency surrounding LEAs’

9 interactions with ICE. The Values and amended TRUST Acts identify when LEAs have

10 discretion to respond to “notification requests,” i.e., requests for release dates. Cal. Gov’t Code

11 §§ 7282.5(a); 7284.6(a)(1)(C) (both chaptered Oct. 5, 2017). These provisions do not fall within

12 the ambit of Section 1373 because “no plausible reading of ‘information regarding . . . citizenship

13 or immigration status’ encompasses the release date of an undocumented inmate.” Steinle v. City

14 & Cty. of San Francisco, 230 F. Supp. 3d 994, 1015 (N.D. Cal. 2017).

15

In fact, the Values Act’s savings clause explicitly permits the exchange of such information

16 in complete accordance with Section 1373. See Cal. Gov’t Code § 7284.6(e). The “authoritative

17 statement” of a statute is its “plain text,” including its “savings clause.” Chamber of Commerce

18 of U.S. v. Whiting, 563 U.S. 582, 599 (2011). In light of the Values Act’s plain text, including its

19 savings clause, none of the Values Act’s provisions restrict communications on immigration

20 status information between LEAs and federal immigration authorities. For instance, the

21 prohibition on “[i]nquiring into an individual’s immigration status” means that LEAs may not ask

22 an individual about his or her immigration status, or may not ask for that information from non-

23 governmental third parties. Although Defendants suggested in their letter to the State, RJN, Ex.

24 P, that this prohibition may restrict requesting immigration status information from federal

25 officials, the savings clause makes clear that is not the case. The savings clause, however, does

26 not limit the scope of the notification request or “personal information” provisions since such

27 information, including home addresses, are not covered by Section 1373.

28 18
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1

B. California’s Confidentiality Statutes Do Not Conflict with Section 1373

2

Section 1373 must be read in the context of the rest of the INA. See Davis v. Mich. Dep’t.

3 of Treasury, 489 U.S. 803, 809 (1989) (“It is a fundamental canon of statutory construction that

4 the words of a statute must be read in their context and with a view to their place in the overall

5 statutory scheme.”). The INA specifically protects the confidentiality of information about those

6 who have been victims of or witnesses to certain crimes. Section 1367(a)(2), enacted as part of

7 the same legislative act as Section 1373, prevents federal employees from “disclos[ing] to anyone

8 [with exceptions] any information which relates to an alien who is the beneficiary of an

9 application for relief” under the statute, i.e. certain victims and witnesses of crime including U-

10 and T-visa recipients. The Defendants’ reading of Section 1373 would require federal employees,

11 in implementing Section 1367(a)(2)’s general disclosure prohibitions, to violate Section

12 1373(b)(3)’s prohibitions on limits to the disclosure of immigration status information from

13 federal employees to other governmental entities.

14

The INA also provides protections and support for certain juveniles. For example, the

15 “Special Immigrant Juvenile” process allows abused, abandoned and neglected immigrant youth

16 to secure lawful immigration status, demonstrating the INA’s broader concern with the long-term

17 safety of such children generally. See 8 U.S.C. § 1101(a)(27)(J). Furthermore, in implementing

18 the Deferred Action for Childhood Arrivals (“DACA”) program, United States Citizenship and

19 Immigration Services (“USCIS”) specifically determined that the information provided by DACA

20 applicants must be “protected from disclosure to ICE and CBP for the purpose of immigration

21 enforcement proceedings,” with limited exceptions. See RJN, Ex. U, Q19.

22

Accordingly, reading the text of Section 1373 in the context of the rest of the INA shows

23 that the prohibition on limiting information-sharing should not be properly interpreted to cover

24 the limited circumstances encompassed by the State’s Confidentiality Statutes. The persons

25 covered by the State’s statutes are similar classes of individuals to those that the INA (and the

26 federal government) itself seeks to protect both through confidentiality and other protections: (a)

27 victims and witnesses of crime (Cal. Penal Code §§ 422.93, 679.10(k), and 679.11(k)); and (b)

28 vulnerable youth (Cal. Civ. Proc. Code § 155(c); Welf. & Inst. Code §§ 827, 831). 19
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1

The plain language of Section 1373 does not demand a different reading. The words in

2 Section 1373 regarding the immigration status of “any individual,” must “be read in their context

3 and with a view to their place in the overall statutory scheme.” Davis, 489 U.S. at 809. For

4 example, in Atascadero State Hospital v. Scanlon, 473 U.S. 234 (1985), the Supreme Court read

5 “any recipient of Federal assistance” to not include every recipient, but instead to exclude state

6 defendants. Id. at 245-46 (emphasis in original), superseded by statute; see also Raygor v.

7 Regents of Univ. of Minn., 534 U.S. 533, 545-46 (2002) (“any claim” did not include every claim,

8 but instead excluded certain claims against state defendants). In this instance, “any individual”

9 should be read in the context of the rest of the INA to exclude those individuals protected by

10 other specific sections of the INA. That is particularly so given the serious constitutional

11 questions about the statute that would otherwise arise, as discussed below. See Bond v. United

12 States, 134 S. Ct. 2077, 2089 (2014) (“‘[I]t is incumbent upon the federal courts to be certain of

13 Congress’ intent before finding that federal law overrides’ the ‘usual constitutional balance of

14 federal and state powers.’”) (quoting Gregory v. Ashcroft, 501 U.S. 452, 460 (1991)).

15

C. The Tenth Amendment Does Not Allow for Section 1373 to Commandeer

the State in its Control over Governmental Employees and its Residents’

16

Confidential Personal Information

17

The Supreme Court has read the Tenth Amendment to impose recognized limits on

18 Congressional enactments. The Framers “explicitly chose a Constitution that confers upon

19 Congress the power to regulate individuals, not States” and the Constitution “has never been

20 understood to confer upon Congress the ability to require the States to govern according to

21 Congress’ instructions.” New York v. United States, 505 U.S. 144, 162, 166 (1992). As such, the

22 Supreme Court held in New York and Printz v. United States, 521 U.S. 898 (1997) that the federal

23 government may not “commandeer” state and local governments and officials “by directly

24 compelling them to enact and enforce a federal regulatory program.” Printz, 521 U.S. at 935;

25 New York, 505 U.S. at 162. Both cases advance the principles that: (i) “the federal government

26 may not compel the States to enact or administer a federal regulatory program” e.g., New York,

27 505 U.S. at 188; (ii) such coercion is impermissible where the “whole object” of the

28 Congressional action is direction of state functions, e.g., Printz, 521 U.S. at 932; and (iii) the 20
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1 intrusion on state sovereignty is “worse” where the federal government “strips” away at state and

2 local government’s discretion at policy-making. E.g., Printz, 521 U.S. at 927-28; see also Koog

3 v. U.S., 79 F.3d 452, 457-60 (5th Cir. 1996). These principles ensure that state and local

4 governments remain politically accountable to their residents. See Printz, 521 U.S. at 920, 922-

5 23; Koog, 79 F.3d at 460-61. Reading Section 1373 to cover the Values, TRUST, and TRUTH

6 Acts and the State’s Confidentiality Statutes violates these principles and upsets constitutional

7 notions of political accountability. The Court should thus construe Section 1373 in a manner that

8 prevents its “invalidation.” See Zadvydas v. Davis, 533 U.S. 678, 689 (2001) (“We have read

9 significant limitations into other immigration statutes in order to avoid their constitutional

10 invalidation.”).

11

First, construing Section 1373 to cover these statutes would compel the State to participate

12 in the administration of a federal regulatory program of immigration enforcement. See New York,

13 505 U.S. at 176, 188. The state statutes at issue here apply to criminal and juvenile systems,

14 which the State and local governments must provide for. To comply with Defendants’ reading of

15 Section 1373, the State Legislature, in setting policy for those systems where the State’s

16 residents’ immigration status information may be relevant, would either have to make no

17 assurances about the confidentiality of that information, or affirmatively make exceptions to

18 allow for disclosure to federal immigration authorities, even when disclosure is prohibited in

19 other instances. See Cal. Penal Code §§ 679.10-.11; Cal. Civ. Proc. Code § 155(c); Cal. Welf. &

20 Inst. Code §§ 827, 831. Regardless of what the State does, it would have to act in furtherance of

21 a federal program that is not its own. Furthermore, where the whole purpose of the statute is to

22 encourage residents to report crimes (see, e.g., Cal. Penal Code §§ 422.93, 679.10-.11), or to

23 define the roles of state and local law enforcement (see, e.g., Cal. Gov’t Code §§ 7282.5(a)

24 (chaptered Oct. 5, 2017), 7283.1, 7284.6(a)(1)(C)-(D)), the enforcement of Section 1373 against

25 these statutes would force the State to surrender its own judgment regarding the public safety risk

26 of entangling local law enforcement in federal immigration matters in favor of the federal

27 government’s preference that federal immigration enforcement prevails over all other concerns.

28 This is “tantamount to forced state legislation” and coercion to administer a federal program that 21
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1 the Tenth Amendment prohibits. See Koog, 79 F.3d at 458.

2

Second, construing Section 1373 in a manner to negate the Values, TRUST, and TRUTH

3 Acts and the State’s Confidentiality Statutes would make the “whole object of [Section 1373] to

4 direct the functioning of the state executive,” see Printz, 521 U.S. at 932, by commanding solely

5 state and local governments to allow the unfettered use of their resources and personnel to act in

6 furtherance of a federal immigration enforcement program. Whether Section 1373 could be

7 enforced against a categorical prohibition on sharing of immigration status information with

8 federal immigration authorities, see City of New York v. United States, 179 F.3d 29, 35 (2d Cir.

9 1999), is not at issue in this case. When applied to these State statutes, however, Section 1373

10 directs action at the core of the State’s sovereign power to make its own determination about how

11 to best address crime and public safety. See United States v. Morrison, 529 U.S. 598, 618 (2000)

12 (“[W]e can think of no better example of the police power, which the Founders denied the

13 National Government and reposed in the States, than the suppression of violent crime and

14 vindication of its victims.”). It is the State or its political subdivisions that have the responsibility

15 to manage detention facilities, operate the juvenile court system, certify U- or T-visa requests, and

16 receive reports from victims and witnesses of crime. If applied to these statutes, Section 1373

17 would be enforced against the use of information that “belongs to the State” and that is “available

18 to [law enforcement officers] only in their official capacity.” Printz, 521 U.S. at 932 n.17.

19 Section 1373 is, thus, inevitably an “object … to direct the functioning of the State” if the statute

20 is enforced against these aspects of the State’s sovereignty. See id. at 932; see also Romero v.

21 United States, 883 F. Supp. 1076, 1086-87 (W.D. La. 1994) (the Tenth Amendment limits

22 Congress from preempting “state regulation for the maintenance of public order” that “remove[d]

23 [the sheriff’s] ability to perform certain tasks assigned him by the state which preserve the public

24 order and therefore remove their sovereign authority to maintain public order”).

25

Third, construing Section 1373 to encompass the Values, TRUST, and TRUTH Acts and

26 the State’s Confidentiality Statutes would take away the State’s discretion in establishing policies

27 about how governmental employees may handle private information about the State’s residents

28 within the custody and control of the State and local governments, thus “worsen[ing] the intrusion 22
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1 upon state sovereignty.” See Printz, 521 U.S. at 927-28. The State has no blanket prohibition on

2 government employees sharing immigration status information with federal immigration

3 enforcement agents. Instead, the State has made nuanced decisions regulating the specific

4 circumstances where immigration status information, personal information, and release dates are

5 protected from disclosure in general (not solely as to immigration enforcement agents), and/or the

6 limited class of individuals to whom such protections apply. See Cal. Penal Code §§ 422.93

7 (limited to hate crime victims and witnesses, who are not perpetrators of crime); 679.10-11

8 (limited to U- or T-visa applicants); Cal. Civ. Proc. Code § 155(c) (limited to “Special Immigrant

9 Juvenile” applicants); Cal. Welf & Inst. Code §§ 827 & 831 (limiting disclosure of juvenile case

10 files to all except statutorily designated parties); Cal. Gov’t Code, §§ 7282.5(a) (chaptered Oct. 5,

11 2017), 7284.6(a)(1)(C)-(D) (defining when release dates and personal information may be

12 disclosed, including when “available to the public”). The enforcement of Section 1373 as to these

13 statutes would weaken the State’s ability to regulate the actions of their own governmental

14 employees, see Gregory, 501 U.S. at 160, and “foreclose[] the State[] from experimenting and

15 exercising [its] own judgment in an area to which States lay claim by right of history and

16 expertise.” See United States v. Lopez, 514 U.S. 549, 583 (1995). “Whatever the outer limits of

17 state sovereignty may be, it surely encompasses the right to set the duties of office for state-

18 created officials and to regulate the internal affairs of government bodies.” Koog, 79 F.3d at 460

19 (citing FERC v. Mississippi, 456 U.S. 742, 761 (1982)).

20

Fourth, commandeering the State in the handling of its residents’ personal information

21 undermines state and local accountability. The U.S. Constitution’s structure of dual sovereignty

22 between the federal government and the states “reduce[s] the risk of tyranny and abuse from

23 either front.” Printz, 521 U.S. at 921 (quoting Gregory, 501 U.S. at 458). Commandeering

24 forces the states to “bear the brunt of public disapproval.” New York, 505 U.S. at 169. As the

25 Court warned in Printz, “[t]he power of the Federal Government would be augmented

26 immeasurably if it were able to impress into its service—and at no cost to itself—the police

27 officers of the 50 States.” 521 U.S. at 922. This is exactly what Defendants would be permitted

28 to accomplish if Section 1373 were construed to forbid states and localities from ensuring that 23
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1 LEAs safeguard the confidentiality of victims’ and witness’ personal information, or to prevent

2 the setting of boundaries on law enforcement’s involvement in immigration enforcement. Should

3 Section 1373 be enforced as to the Values, TRUST, and TRUTH Acts and the Confidentiality

4 Statutes, witnesses and victims will be less inclined to report crimes, see, e.g., RJN, Ex. V, and

5 relationships between immigrant communities and state and local officials would be strained.

6 State and local governments would “face the brunt of public disapproval,” rather than the

7 Defendants who effectively coerced the State and localities to act according to a federal program.

8

Although two federal courts have upheld Section 1373 against facial constitutional

9 challenges, neither ruling is dispositive to the issues presented in this case. In fact, both decisions

10 reflect significant concern about extending Section 1373 to apply to statutes such as those at issue

11 here. In City of Chicago v. Sessions, while the district court held that there was a likelihood that

12 Section 1373 was facially constitutional, it also expressed concern about its potential applications.

13 The court noted that Section 1373 “mandate[s]” state and local governments to give employees

14 the option of providing information to federal immigration agents. 2017 WL 4081821, at *12.

15 The court found that the “practical” impact is that state and local governments are “limited [in

16 their] ability to decline to administer or enforce a federal regulatory program” and “extricate their

17 state or municipality’s involvement in a federal program.” Id.

18

In City of New York, the city argued that Section 1373 was facially unconstitutional, in part,

19 because it interfered with the use of confidential information and control over the city’s

20 employees in a range of local government functions. The Second Circuit held Section 1373

21 facially constitutional, but recognized:

22

The City’s concerns [about confidentiality] are not insubstantial. The obtaining of

pertinent information, which is essential to the performance of a wide variety of state

23

and local governmental functions, may in some cases be difficult or impossible if

some expectation of confidentiality is not preserved. Preserving confidentiality may

24

in turn require that state and local governments regulate the use of such information

by their employees. 25

26 179 F.3d at 36. The Second Circuit acknowledged that the Tenth Amendment may limit Section

27 1373 from being “an impermissible intrusion on state and local power to control information

28 obtained in the course of official business or to regulate the duties and responsibilities of state and 24
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1 local governmental employees,” but it did not consider these arguments in earnest because the

2 city’s executive order promoted a policy of “non-cooperation while allowing City employees to

3 share freely the information in question with the rest of the world.” See id. at 37. The Second

4 Circuit determined that the city was attempting to transform “the Tenth Amendment’s shield

5 against the federal government’s using state and local governments to enact and administer

6 federal programs into a sword allowing states and localities to engage in passive resistance that

7 frustrates federal programs.” Id. at 35.

8

That is not so with the State’s Confidentiality Statutes, the only statutes that are arguably

9 relevant to the grants at issue that place limited regulations on the sharing of immigration status

10 information. They either generally prohibit disclosure to a wide range of individuals, not just to

11 federal agents, or narrowly tailor the segment of the population that is protected. The same is true

12 of the notification request provision in the Values and amended TRUST Acts and the personal

13 information provision in the Values Act which allow for disclosure when the information is

14 already “available to the public.” And the TRUTH Act does not regulate the sharing of any

15 information. As a result, these statutes possess the qualities that eluded the jurisdictions’ facial

16 challenges in City of New York and Chicago, and underscore the serious constitutional issues that

17 the Second Circuit and the Northern District of Illinois found troubling in Section’s 1373’s

18 practical application. See Chicago, 2017 WL 4081821, at *12 (“practically limit[ing] the ability

19 of state and local governments to decline to administer or enforce a federal regulatory program”

20 could “implicate the logic underlying the Printz decision”).

21 IV. WITHOUT COURT INTERVENTION, THE SECTION 1373 CONDITIONS WILL CAUSE THE STATE IMMINENT AND IRREPARABLE HARM
22

23

“[C]onstitutional violation[s] alone, coupled with the damages incurred, can suffice to show

24 irreparable harm.” Am. Trucking Ass’ns, Inc. v. City of Los Angeles, 559 F.3d 1046, 1058-59 (9th

25 Cir. 2009) (relying on Morales v. Trans World Airlines, Inc., 504 U.S. 374 (1992)). Moreover,

26 injuries where “sovereign interests and public policies [are] at stake” are irreparable. Kansas v.

27 United States, 249 F.3d 1213, 1228 (10th Cir. 2001).

28 25
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1

California will suffer a constitutional injury to the State’s sovereignty if Defendants

2 effectively coerce the State and its political subdivisions to carry out their federal immigration

3 enforcement agenda, particularly under their misinterpretation of Section 1373. A plaintiff can

4 suffer a constitutional injury by being forced either to comply with an unconstitutional law or else

5 face community and financial injury. See Am. Trucking Ass’ns, Inc., 559 F.3d at 1058-59

6 (plaintiffs were injured where they faced the choice of signing unconstitutional agreements or a

7 loss of customer goodwill and business). Such is the case here where the State is confronted with

8 making an unqualified certification of compliance under penalty of perjury under the shadow of

9 Defendants’ misinterpretation of Section 1373, specifically as to the State’s law. Defendants’

10 November 1 letter makes clear that Defendants view the State as currently ineligible to receive

11 grant funds because of the Values Act, and that the State likely will face legal jeopardy should it

12 execute the certification based on Defendants’ erroneous interpretation of Section 1373.14 See

13 Morales, 504 U.S. at 380-81 (injunctive relief proper where “respondents were faced with a

14 Hobson’s choice: continually violate the Texas law and expose themselves to potentially huge

15 liability; or violate the law once as a test case and suffer the injury of obeying the law during the

16 pendency of the proceedings”).

17

Construing Section 1373 to invalidate the State’s statutes will also cause real harm to our

18 communities, no matter what the State does. If the State changes its laws to comply with an

19 unlawful and constitutionally impermissible interpretation of Section 1373, the relationship of

20 trust that these State statutes are intended to build between law enforcement and immigrant

21 communities will erode. See McDonnell Decl., ¶¶ 10, 12; San Francisco Compl., ¶ 28.

22 Alternatively, if the State preserves its laws and Defendants cut millions of dollars in JAG

23 funding that the State is otherwise entitled to by statutory formula, the State would be unable to

24 fund critical public safety programs, see Jolls Decl., ¶ 19; Caligiuri Decl., ¶¶ 19-22, and local

25 jurisdictions’ programs will be detrimentally impacted, including the possibility that programs

26 14 Even if the State submits a statement explaining why the State’s laws comply with Section
27 1373, notwithstanding Defendants’ misinterpretation, the State still has to submit the standard certification required by Defendants in order to receive funding, and Defendants may deny the
28 State funding on the basis of this explanatory statement. 26
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1 and staff positions will be eliminated in their entirety. See McDonnell Decl., ¶¶ 8-9, 15; S.F.

2 Compl., ¶ 46; see United States v. North Carolina, 192 F. Supp. 3d 620, 629 (M.D.N.C. 2016)

3 (finding irreparable harm where the lack of funds was “likely to have an immediate impact on

4 [the state’s] ability to provide critical resources to the public, causing damage that would persist

5 regardless of whether funding [was] subsequently reinstated”). Furthermore, without any

6 guidance from Defendants, BSCC will be placed in the position of having to monitor subgrantees

7 and report them for having policies that the State and/or the subgrantees determined benefit

8 public safety. See RJN, Ex. J, ¶¶ 53(3), 54(1)(D); see also Jolls Decl., ¶¶ 21-22.

9

The harm to the State from the loss of COPS grants is at least as immediate. USDOJ is

10 poised to issue COPS awards and demand compliance with applicable laws, including Section

11 1373, based on their apparent misreading of the statute. See supra at 12-13. If CalDOJ does not

12 receive the COPS grants based on Defendants’ interpretation of Section 1373 or they are

13 conditioned based on this misinterpretation, CalDOJ will be unable to fund task forces and

14 equipment that combat heroin and methamphetamine distribution, creating harm that will extend

15 to the local jurisdictions that those task forces serve. See Caligiuri Decl., ¶¶ 10, 16.

16

The damages incurred here—the deprivation of constitutional rights, the loss of community

17 goodwill, decrease in public safety, and the loss of millions of dollars of funding —“suffice to

18 show irreparable harm.” See Am. Trucking Ass’ns, Inc., 559 F.3d at 1058; Stuller, Inc. v. Steak N

19 Shake Enterprises, Inc., 695 F.3d 676, 680 (7th Cir. 2012) (injuries to goodwill not easily

20 measurable and often irreparable). These are the same types of damages that the court in Chicago

21 recently found to be irreparable in enjoining other immigration enforcement related conditions for

22 JAG. See Chicago, 2017 WL 4081821, at *12-14.

23 V. THE BALANCE OF HARDSHIPS FAVORS GRANTING A PRELIMINARY INJUNCTION

24

A party seeking a preliminary injunction “must establish . . . that the balance of equities tips

25 in his favor, and that an injunction is in the public interest.” Winter, 555 U.S. at 20. These two

26 factors merge when the government is a party. Nken v. Holder, 556 U.S. 418, 435 (2009). And

27 the balance of the hardships and public interest both favor “‘prevent[ing] the violation of a party’s

28 27
Plaintiff’s Not. of Am. Mot. and Am. Motion for Preliminary Injunction; MPA in Support Thereof (17-cv-4701)

Case 3:17-cv-04701-WHO Document 26 Filed 11/07/17 Page 35 of 36

1 constitutional rights.’” Ariz. Dream Act Coalition v. Brewer, 757 F.3d 1053, 1069 (9th Cir. 2014)

2 (quoting Melendres v. Arpaio, 695 F.3d 990, 1002 (9th Cir. 2012)).

3

Here, the balance of the hardships and the public interest favors an injunction. California

4 has determined that the public safety requires protecting its residents’ personal information and

5 limiting law enforcement’s entanglement in immigration enforcement. Defendants are forcing

6 California, under extreme time pressure, to consider undermining these policies to avoid losing

7 critical federal funding. An injunction protects the public interest in shielding the State’s

8 sovereignty from unconstitutional conditions without harm to the federal government’s ability to

9 enforce federal laws with federal resources.

10

The Government “is in no way harmed by issuance of a preliminary injunction which

11 prevents the [federal government] from enforcing restrictions likely to be found unconstitutional.

12 If anything, the system is improved by such an injunction.” See Giovani Carandola, Ltd. v.

13 Bason, 303 F.3d 507, 521 (4th Cir. 2002) (citation omitted). This is particularly true when an

14 injunction protects a State’s interest in “the exercise of sovereign power over individuals and

15 entities within . . . [their] jurisdiction that involves the power to create and enforce a legal code,

16 both civil and criminal.” See Alfred L. Snapp & Son, Inc. v. Puerto Rico ex rel. Barez, 458 U.S.

17 592, 601 (1982). The potential impact on numerous local jurisdictions further tips the balance of

18 interests. See, e.g., McDonnell Decl., ¶ 8-9, 15; S.F. Compl., ¶ 46. In contrast, Defendants face

19 no harm since the status quo would remain, and they would only have to provide money that

20 Congress has already appropriated.

21

CONCLUSION

22

For the foregoing reasons, California requests this Court grant its Motion.

23

24

25

26

27

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Case 3:17-cv-04701-WHO Document 26 Filed 11/07/17 Page 36 of 36

1 Dated: November 7, 2017

Respectfully Submitted,

2

XAVIER BECERRA

Attorney General of California

3

ANGELA SIERRA

Senior Assistant Attorney General

4

SATOSHI YANAI

Supervising Deputy Attorney General

5

SARAH E. BELTON

Deputy Attorney General

6

/s/ Lee Sherman

7

/s/ Lisa C. Ehrlich

8

LEE SHERMAN

LISA C. EHRLICH

9

Deputy Attorneys General

Attorneys for Plaintiff

10

State of California

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-04701-WHO Document 26-1 Filed 11/07/17 Page 1 of 3

1 XAVIER BECERRA Attorney General of California
2 ANGELA SIERRA Senior Assistant Attorney General
3 SATOSHI YANAI Supervising Deputy Attorney General
4 SARAH E. BELTON LISA C. EHRLICH
5 LEE SHERMAN (SBN 272271) Deputy Attorneys General
6 300 S. Spring St., Suite 1702 Los Angeles, CA 90013
7 Telephone: (213) 269-6404 Fax: (213) 879-7605
8 E-mail: Lee.Sherman@doj.ca.gov Attorneys for Plaintiff State of California
9 IN THE UNITED STATES DISTRICT COURT
10 FOR THE NORTHERN DISTRICT OF CALIFORNIA
11 SAN FRANCISCO DIVISION
12

13

14 STATE OF CALIFORNIA, ex rel, XAVIER Case No. 17-cv-4701

BECERRA, in his official capacity as

15 Attorney General of the State of California, [PROPOSED] ORDER GRANTING

PLAINTIFF STATE OF CALIFORNIA’S

16

Plaintiff, AMENDED MOTION FOR

PRELIMINARY INJUNCTION

17

v.

Date:

December 13, 2017

18

Time:

2 p.m.

JEFFERSON B. SESSIONS, in his official Dept:

2

19 capacity as Attorney General of the United Judge:

Honorable William H. Orrick

States; ALAN R. HANSON, in his official Trial Date: None Set

20 capacity as Acting Assistant Attorney

Action Filed: 8/14/2017

General; UNITED STATES

21 DEPARTMENT OF JUSTICE; and DOES

1-100,

22

Defendants.

23

24

25

26

27

28

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Case 3:17-cv-04701-WHO Document 26-1 Filed 11/07/17 Page 2 of 3

1

On November 7, 2017, Plaintiff State of California, ex rel. Xavier Becerra, California

2 Attorney General (“the State” or “California”) filed an Amended Motion for Preliminary

3 Injunction (“Motion”) and a hearing on the Motion was held on Wednesday, December 13, 2017

4 at 2:00 p.m.

5

The Court has considered the Motion and documents filed therewith, all of the papers on

6 file in this action, and the evidence and arguments presented at the hearing, and hereby GRANTS

7 California’s Motion. The Court finds that each of the necessary elements for issuing a

8 preliminary injunction are met. In particular, the Court finds that California is likely to prevail on

9 the merits of its claims; absent a preliminary injunction, California would be likely to suffer an

10 irreparable injury in the form of constitutional, community, and economic injury; the balance of

11 the equities favors California; and the requested relief is in the public interest.

12

PRELIMINARY INJUNCTION

13

Now, therefore, it is hereby ORDERED that:

14

Defendants Jefferson B. Sessions, in his official capacity as Attorney General of the United

15 States, Alan R. Hanson, in his official capacity as Assistant Attorney General of the United

16 States, and the United States Department of Justice, and their officers, agents, servants,

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

18 them, ARE HEREBY RESTRAINED AND ENJOINED from committing, or performing,

19 directly and indirectly, any and all of the following acts: Requiring compliance with 8 U.S.C. §

20 1373 (“Section 1373”) as a condition for the State and its political subdivisions to receive funding

21 pursuant to the Edward Byrne Memorial Justice Assistance Grant (“JAG”) program.

22

It is further ORDERED that Defendants and their officers, agents, servants, employees, and

23 attorneys, and any other persons who are in active concert or participation with them, ARE

24 HEREBY RESTRAINED AND ENJOINED from withholding, terminating, or clawing back

25 funding from, or disbarring or making ineligible, the State and its political subdivisions for JAG

26 or Community Oriented Policing Service grants based on an interpretation of Section 1373 as

27 applied to California Government Code Sections 7282 et seq. (the “TRUST Act”) (chaptered Oct.

28 5, 2017), 7283 et seq. (the “TRUTH Act”), or 7284 et seq. (the “California Values Act”)
1 [Proposed] Order Granting Plaintiff’s Amended Motion for Preliminary Injunction (17-cv-4701)

Case 3:17-cv-04701-WHO Document 26-1 Filed 11/07/17 Page 3 of 3

1 (chaptered Oct. 5, 2017); California Penal Code Sections 422.93, 679.10, or 679.11; California

2 Code of Civil Procedure Section 155; or California Welfare and Institutions Code Sections 827 or

3 831.

4

The State has demonstrated a likelihood of success on its claim that these statutes comply

5 with Section 1373 as lawfully interpreted and/or Section 1373 cannot be constitutionally enforced

6 as to these statutes.

7 Dated:
8
9

The Honorable William H. Orrick

10

11

12

13

14

15

16

17

18

19

20

21

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2 [Proposed] Order Granting Plaintiff’s Amended Motion for Preliminary Injunction (17-cv-4701)

 
 Case 3:17-cv-04701-WHO Document 42 Filed 11/22/17 Page 1 of 39

1 CHAD A. READLER

Principal Deputy 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

ANTONIA KONKOLY Trial Attorney

7 Department of Justice, Room 7210
Civil Division, Federal Programs Branch

8 20 Massachusetts Avenue, NW

Washington, D.C. 20530
9 Telephone: (202) 514-3495

10

Facsimile: E-mail:

(202) 616-8470 scott.simpson@usdoj.gov

11 COUNSEL FOR DEFENDANTS
JEFFERSON B. SESSIONS III, Attorney

12 General of the United States; ALAN R.

HANSON, Acting Assistant Attorney General;
13 and U.S. DEPARTMENT OF JUSTICE

14

15

IN THE UNITED STATES DISTRICT COURT

16

FOR THE NORTHERN DISTRICT OF CALIFORNIA

17

SAN FRANCISCO DIVISION

18 STATE OF CALIFORNIA, ex rel. XAVIER

19 BECERRA, Attorney General of the State of
California,

20

Plaintiff,

21

v.

No. 3:17-cv-04701-WHO
OPPOSITION TO PLAINTIFF’S AMENDED MOTION FOR PRELIMINARY INJUNCTION

22 JEFFERSON B. SESSIONS III, Attorney 23 General of the United States, et al.,

Date: Time:

December 13, 2017 2:00 p.m.

24

Defendants.

25

26

27

28

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Case 3:17-cv-04701-WHO Document 42 Filed 11/22/17 Page 2 of 39

1

TABLE OF CONTENTS

2 3 TABLE OF AUTHORITIES...............................................................................................................iii

4 INTRODUCTION ................................................................................................................................ 1

5

6 STATUTORY AND ADMINISTRATIVE BACKGROUND........................................................... 3

7

I. The Immigration and Nationality Act ......................................................................... 3

8

II. DOJ Office of Justice Programs and the Byrne JAG Program.................................. 3

9

III. The DOJ Office of Community Oriented Policing Services and the Anti-Methamphetamine and Anti-Heroin Task Force Programs ............................... 6

10

IV. Recent Developments .................................................................................................. 7

11

12 ARGUMENT ........................................................................................................................................ 8

13

I. Plaintiff Cannot Establish a Likelihood of Success on the Merits ............................. 8

14

A. The Section 1373 Condition in the Byrne JAG Program Is Consistent with Law .................................................................................... 8

15

1. The Section 1373 Condition Is Consistent with

16

the Spending Clause ............................................................................ 9

17

2. The Section 1373 Condition Is Consistent with the Administrative Procedure Act..................................................... 11

18

B. Plaintiff Is Unlikely to Succeed in Showing that None

19

of Its Laws Violate Section 1373 .................................................................. 13

20

1. Plaintiff’s Claims Regarding Compliance with Section 1373 Are Non-Justiciable .................................................... 14

21

a. Plaintiff Lacks Standing to Seek a Ruling Regarding

22

Any State Statute Other Than the Values Act ...................... 15

23

b. Plaintiff’s Request for a Ruling Regarding the Values Act Is Unripe ............................................................. 17

24

2. Plaintiff Is Unlikely to Succeed in Showing that None of Its

25

Laws Would Violate the Section 1373 Compliance Condition ....... 18

26

C. Plaintiff Is Unlikely to Succeed in Showing that the Section 1373 Compliance Condition Violates the Tenth Amendment .............................. 22

27

II. Plaintiff Fails to Establish Irreparable Harm Absent Preliminary Relief................. 26

28

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1

III. The Public Interest and the Balance of Harms Militate Against

the Entry of a Preliminary Injunction ........................................................................ 28

2

3 CONCLUSION................................................................................................................................... 28

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

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1

TABLE OF AUTHORITIES

2 3 CONSTITUTIONS

4 U.S. Const. art. I, § 8, cl. 1 ............................................................................................................... 9

5 U.S. Const. art. III, § 2, cl. 1 .......................................................................................................... 14

6 Cal. Const. art. II, § 9(c)................................................................................................................. 18 7

8 CASES

9 Abbott Labs. v. Gardner, 387 U.S. 136 (1967) .............................................................................. 15

10 Am. Trucking Ass’ns v. City of Los Angeles, 559 F.3d 1046 (9th Cir. 2009) .................................. 8
11
Arc of Cal. v. Douglas, 757 F.3d 975 (9th Cir. 2014).................................................................... 26
12
Arcsoft, Inc. v. Cyberlink Corp., 153 F. Supp. 3d 1057 (N.D. Cal. 2015) ..................................... 26
13
Ardalan v. McHugh, 2014 WL 3846062 n.10 (N.D. Cal. Aug. 4, 2014)....................................... 17
14
15 Arizona v. United States, 567 U.S. 387 (2012) .......................................................................... 3, 10

16 Arlington Cent. Sch. Dist. Bd. of Educ. v. Murphy, 548 U.S. 291 (2006) ....................................... 9

17 Barbour v. Wash. Metro. Area Transit Auth., 374 F.3d 1161 (D.C. Cir. 2004) ............................ 10

18 Bigelow v. Virginia, 421 U.S. 809 (1975)...................................................................................... 14
19
Boardman v. Pac. Seafood Grp., 822 F.3d 1011 (9th Cir. 2016) .................................................. 27
20
Bologna v. San Francisco, 121 Cal. Rptr.3d 46 (Cal. App. 2011) ................................................ 20
21 22 Caribbean Marine Servs. Co. v. Baldridge, 844 F.2d 668 (9th Cir. 1988).................................... 26
23 Chicago v. Sessions, 2017 WL 4081821 (N.D. Ill. Sept. 15, 2017) .......................................... 7, 25

24 Chicago v. Sessions, 2017 WL 5499167 (N.D. Ill. Nov. 16, 2017)........................................... 7, 17

25 City of New York v. United States, 179 F.3d 29 (2d Cir. 1999) ..................................................... 25

26 Davis v. Fenton, 26 F. Supp. 3d 727 (N.D. Ill. 2014) .................................................................... 20

27

Dean v. United States, 556 U.S. 568 (2009) .................................................................................. 20

28

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1
Demore v. Kim, 538 U.S. 510 (2003)............................................................................................. 10
2
3 Envtl. Def. Ctr., Inc. v. EPA, 344 F.3d 832 (9th Cir. 2003) ........................................................... 23

4 FCC v. Fox Television Stations, Inc., 556 U.S. 502 (2009)..................................................... 12, 13

5 Freilich v. Upper Chesapeake Health, Inc., 313 F.3d 205 (4th Cir. 2002) ............................... 24, 25

6 Fullilove v. Klutznick, 448 U.S. 448 (1980)................................................................................... 28
7 Gallo Cattle Co. v. USDA, 159 F.3d 1194 (9th Cir. 1998) ............................................................ 11 8
Haw. Cty. Green Party v. Clinton, 14 F. Supp. 2d 1198 (D. Haw. 1998) ..................................... 14
9
Invention Submission Corp. v. Rogan, 357 F.3d 452 (4th Cir. 2004) ............................................ 11
10
11 Lopez v. Brewer, 680 F.3d 1068 (9th Cir. 2012).............................................................................. 8

12 Mayweathers v. Newland, 314 F.3d 1062 (9th Cir. 2002) ....................................................... 10, 11

13 Morales v. Trans World Airlines, 504 U.S. 374 (1992) ................................................................. 20

14 Nat’l Fed’n of Indep. Bus. v. Sebelius, 567 U.S. 519 (2012) ............................................... 2, 23, 27
15
Nat’l Parks & Conservation Ass’n v. BLM, 606 F.3d 1058 (9th Cir. 2010).................................. 11
16
New York v. United States, 505 U.S. 144 (1992) ................................................................... 2, 9, 23
17 18 Nken v. Holder, 556 U.S. 418 (2009)............................................................................................. 28
19 Or. Bureau of Labor & Indus. ex rel. Richardson v. U.S. W. Commc’ns, Inc.,
288 F.3d 414 (9th Cir. 2002) ..................................................................................................... 14
20
Painsolvers, Inc. v. State Farm Mut. Auto. Ins. Co., 685 F. Supp. 2d 1123 (D. Haw. 2010) ........ 27
21 22 Philadelphia v. Sessions, 2017 WL 5489476 (E.D. Pa. Nov. 15, 2017).......................................... 7
23 Pollara v. Radiant Logistics Inc., 2012 WL 12887095 (C.D. Cal. Sept. 13, 2012) ...................... 14

24 Pollution Denim & Co. v. Pollution Clothing Co.,
2009 WL 10672270 (C.D. Cal. Feb. 9, 2009) ..................................................................... 15, 16
25
26 Preap v. Johnson, 831 F.3d 1193 (9th Cir. 2016).......................................................................... 22

27 Printz v. United States, 521 U.S. 898 (1997) ................................................................................. 25

28

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1 Rattlesnake Coal. v. EPA, 509 F.3d 1095 (9th Cir. 2007) ............................................................. 11

2 Reno v. Condon, 528 U.S. 141 (2000)...................................................................................... 24, 26
3 San Diego v. Whitman, 242 F.3d 1097 (9th Cir. 2001).................................................................. 12 4
Sec’y of Labor v. Fitzsimmons, 805 F.2d 682 (7th Cir. 1986) ....................................................... 28
5
Sofinet v. INS, 188 F.3d 703 (7th Cir. 1999).................................................................................. 28
6
7 South Dakota v. Dole, 483 U.S. 203 (1987) .................................................................................... 9

8 Steel Co. v. Citizens for a Better Env’t, 523 U.S. 83 (1998).................................................... 14, 16

9 Steinle v. San Francisco, 230 F. Supp. 3d 994 (N.D. Cal. 2017) .................................................. 20

10 Texas v. United States, 523 U.S. 296 (1998) ..................................................................... 15, 17, 18
11
Thomas v. Zachry, 256 F. Supp. 3d 1114 (D. Nev. 2017) ............................................................... 8
12
U.S. Bank, N.A. v. SFR Invs. Pool 1, LLC, 124 F. Supp. 3d 1063 (D. Nev. 2015) .......................... 8
13
United States v. Elkins, 683 F.3d 1039 (9th Cir. 2012) ................................................................. 11
14
15 United States v. Gould, 568 F.3d 459 (4th Cir. 2009) ................................................................... 11

16 United States v. Kebodeaux, 133 S. Ct. 2496 (2013) ..................................................................... 11

17 United States v. Richardson, 754 F.3d 1143 (9th Cir. 2014) ......................................................... 23

18 Whitmore v. Arkansas, 495 U.S. 149 (1990) ..................................................................... 14, 15, 17
19
Winter v. NRDC, 555 U.S. 7 (2008)..................................................................................... 8, 26, 28
20

21 STATUTES
22 5 U.S.C. § 553(a)(2) ....................................................................................................................... 13 23
5 U.S.C. § 704 ................................................................................................................................ 11
24
8 U.S.C. §§ 1101 et seq.................................................................................................................... 3
25 26 8 U.S.C. § 1101(a)(15) ................................................................................................................... 21

27 8 U.S.C. § 1226(a) ............................................................................................................. 10, 21, 22

28

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1 8 U.S.C. § 1226(c) ................................................................................................................... 10, 22

2 8 U.S.C. § 1226(c)(1) ................................................................................................................. 2, 21
3
8 U.S.C. § 1226(d) ......................................................................................................................... 13
4
8 U.S.C. § 1227(a) ................................................................................................................. 2, 3, 24
5 6 8 U.S.C. § 1227(a)(1)(C) ............................................................................................................... 21
7 8 U.S.C. § 1227(a)(2) ............................................................................................................... 10, 12

8 8 U.S.C. § 1228 ...................................................................................................................... 2, 3, 24

9 8 U.S.C. § 1231 ........................................................................................................................ 10, 13

10 8 U.S.C. § 1231(a) ......................................................................................................................... 22
11
8 U.S.C. § 1231(a)(1)(B)(iii) ......................................................................................................... 21
12
8 U.S.C. § 1231(a)(4) ..................................................................................................................... 21
13
8 U.S.C. § 1231(i) .......................................................................................................................... 28
14
15 8 U.S.C. § 1252c ............................................................................................................................ 10

16 8 U.S.C. § 1324(c) ......................................................................................................................... 10

17 8 U.S.C. § 1357(a)(1) ................................................................................................................. 2, 22

18 8 U.S.C. § 1357(g) ................................................................................................................... 10, 13
19
8 U.S.C. § 1357(g)(10)(A) ....................................................................................................... 21, 22
20
8 U.S.C. § 1373 .............................................................................................................................. 13
21 22 8 U.S.C. § 1373(a) ......................................................................................................................... 19
23 8 U.S.C. §§ 1226(c) & 1231(a) ...................................................................................................... 22

24 8 U.S.C. §§ 1226(d) ....................................................................................................................... 13

25 8 U.S.C. § 1357(a)(1) ....................................................................................................... 2, 3, 22, 24

26 18 U.S.C. § 2725(3) ....................................................................................................................... 24

27
34 U.S.C. §§ 10101 et seq................................................................................................................ 3

28

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1
34 U.S.C. § 10102(a)(2) ............................................................................................................. 3, 13
2
3 34 U.S.C. § 10102(a)(6) ................................................................................................................... 4

4 34 U.S.C. § 10108 ............................................................................................................................ 4

5 34 U.S.C. §§ 10151-10158............................................................................................................... 4

6 34 U.S.C. § 10152(a)(1) ................................................................................................................... 4
7
34 U.S.C. § 10153(a) ....................................................................................................................... 4
8
34 U.S.C. § 10153(a)(5)(C) ........................................................................................................... 13
9 10 34 U.S.C. § 10153(a)(5)(D) ............................................................................................................. 4
11 34 U.S.C. § 10154 ................................................................................................................ 4, 12, 17

12 34 U.S.C. § 10156 ............................................................................................................................ 4

13 34 U.S.C. §§ 10221-10238............................................................................................................... 4
14 34 U.S.C. § 10223 .......................................................................................................................... 17 15
34 U.S.C. § 10263 ............................................................................................................................ 4
16
34 U.S.C. § 10251(a)(1) ................................................................................................................... 4
17
18 34 U.S.C. §§ 20901 et seq.............................................................................................................. 10

19 34 U.S.C. § 20927(a) ............................................................................................................... 11, 23

20 42 U.S.C. § 11133 .......................................................................................................................... 24

21 42 U.S.C. § 11134 .......................................................................................................................... 24

22 Pub. L. No. 90-351, 82 Stat. 197 (1968)........................................................................................... 3
23
Consolidated Appropriations Act, 2017, Pub. L. No. 115-31, 131 Stat. 135 ............................. 4, 6, 7
24
Cal. Civ. Code § 1798.3(a)............................................................................................................. 19
25
26 Cal. Civ. Proc. Code § 155............................................................................................................... 1

27 Cal. Gov’t Code §§ 7282-7282.5 ..................................................................................................... 1

28

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1 Cal. Gov’t Code § 7282.5(a) .......................................................................................................... 19

2 Cal. Gov’t Code §§ 7283-7283.2 ..................................................................................................... 1
3
Cal. Gov’t Code §§ 7284-7284.12 ............................................................................................. 1, 19
4
Cal. Gov’t Code § 7284.6(a) .......................................................................................................... 19
5 6 Cal. Gov’t Code § 7284.6(a)(1)(C) ............................................................................................ 2, 26
7 Cal. Gov’t Code § 7284.6(a)(1)(D)............................................................................................ 2, 26

8 Cal. Penal Code § 422.93 ................................................................................................................. 1

9 Cal. Penal Code § 679.10 ................................................................................................................. 1

10 Cal. Penal Code § 679.11 ................................................................................................................. 1
11
Cal. Welf. & Inst. Code § 827.......................................................................................................... 1
12
Cal. Welf. & Inst. Code § 831.......................................................................................................... 1
13

14 LEGISLATIVE HISTORY
15
S. Rep. No. 104-249 (1996) ........................................................................................................... 24
16

17 18 REGULATIONS

19 2 C.F.R. § 200.203(c)(2) .................................................................................................................. 5

20 28 C.F.R. § 0.119 ............................................................................................................................. 6

21 28 C.F.R. § 0.120 ............................................................................................................................. 6
22
28 C.F.R. Part 18...................................................................................................................... 12, 17
23

24
OTHER AUTHORITIES

25
Black’s Law Dict. (5th ed. 1979) ................................................................................................... 20

26

Mem. from Michael E. Horowitz, Inspector Gen., to Karol V. Mason, Assistant Att’y Gen.,
27 Office of Justice Programs, Department of Justice Referral of Allegations of Potential

28

Violations of 8 U.S.C. § 1373 by Grant Recipients (May 31, 2016) ........................................... 5 viii

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1
Webster’s New Intern’l Dict. (2d ed. 1958)................................................................................... 21
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

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1

INTRODUCTION

2

This case asks the Court to determine whether the U.S. Department of Justice (“USDOJ”)

3 can require the recipients of certain law enforcement grants to comply with federal law. Section

4 1373 of Title 8, U.S. Code, part of the Immigration of Nationality Act (“INA”), bars state and local

5 governments from prohibiting or restricting the exchange of “information regarding the . . . citizen-

6 ship or immigration status” of any individual with federal immigration authorities. USDOJ requires

7 grantees in certain programs to comply with this requirement, but plaintiff argues that imposing this

8 condition in the Edward Byrne Memorial Justice Assistance Grant Program (“Byrne JAG

9 Program”), which provides funding for law enforcement, violates the Spending Clause of the U.S.

10 Constitution and the Administrative Procedure Act (“APA”). Those claims are without merit,

11 however, because – as the INA makes clear – immigration enforcement and law enforcement are

12 inextricably linked.

13

Alternatively, plaintiff seeks an order enjoining defendants from finding that any of several

14 state laws violate the Section 1373 compliance condition in either the Byrne JAG Program or two

15 other programs. Specifically, plaintiff seeks an order that Section 1373 is not violated by Califor-

16 nia’s “TRUST Act,” Cal. Gov’t Code §§ 7282-7282.5; the “TRUTH Act,” Cal. Gov’t Code §§

17 7283-7283.2; the “California Values Act,” Cal. Gov’t Code §§ 7284-7284.12 (“Values Act”);

18 California Penal Code §§ 422.93, 679.10, or 679.11; California Code of Civil Procedure § 155; or

19 California Welfare and Institutions Code §§ 827 or 831 (Dkt. No. 26-1). USDOJ has not, however,

20 indicated that any of those state statutes other than the Values Act might violate the Section 1373

21 condition, and even as to that Act, USDOJ has not yet reached a final decision. Moreover, the

22 Values Act is not now in effect and may never take effect because of a voter referendum requested

23 for the November 2018 election. Therefore, plaintiff lacks standing to seek an order regarding any

24 of those statutes other than Values Act, and even plaintiff’s claim regarding that Act is unripe.

25

In any event, even if this alternative claim were justiciable, plaintiff is unlikely to succeed

26 on the merits of its claim that the Values Act would comply with the Section 1373 condition. The

27 Values Act, among other things, prohibits state and local agencies from disclosing an individual’s

28 release date, personal information (including home address), or “other information,” with certain

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1 exceptions not referencing federal immigration authorities. See Cal. Gov’t Code § 7284.6(a)(1)(C),

2 (D). Section 1373 however, bars prohibiting or restricting the exchange of “information regarding”

3 immigration status with federal immigration authorities, which necessarily encompasses informa-

4 tion regarding custody status and location as needed to carry out the federal responsibilities to

5 “interrogate any . . . person believed to be an alien as to his right to be or to remain in the United

6 States,” to take non-citizens into federal custody upon release from state or local custody, and to

7 remove certain classes of non-citizens from the United States as ordered by the Attorney General or

8 the Secretary of Homeland Security. 8 U.S.C. §§ 1357(a)(1), 1226(c)(1), 1227(a), 1228.

9

Plaintiff lastly argues that Section 1373 would violate the Tenth Amendment if defendants

10 construe it as conflicting with any of the state statutes listed above. Finding that the Values Act –

11 the only state statute legitimately at issue here – violates Section 1373 would not, however, “compel

12 [California] to enact or administer a federal regulatory program” or to “act on the Federal Govern-

13 ment’s behalf” in violation of the Tenth Amendment. See New York v. United States, 505 U.S. 144,

14 188 (1992); Nat’l Fed’n of Indep. Bus. v. Sebelius, 567 U.S. 519, 620 (2012) (hereinafter NFIB).

15 This case involves a grant condition that the State is free to accept or reject, and, in any event,

16 merely protecting the exchange of information with federal authorities does not compel state and

17 local governments to administer a federal program.

18

Finally, plaintiff fails to establish that it would suffer irreparable harm absent a preliminary

19 injunction, and the public interest and balance of equities militate against the relief sought. The

20 State’s claim of irreparable harm from implementation of the Section 1373 condition is belied by its

21 certification – without objection or complaint – of such compliance in accepting a FY 2016 Byrne

22 JAG award. Moreover, compliance with Section 1373 on the part of state and local governments is

23 important to enforcement of the federal immigration laws – in particular, locating and removing

24 aliens who are in police custody because they have committed crimes – which represents the

25 ultimate “public interest” here.

26

For all these reasons, plaintiff’s motion for preliminary injunction should be denied.

27

28

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1

STATUTORY AND ADMINISTRATIVE BACKGROUND

2 I. The Immigration and Nationality Act

3

Enforcement of the immigration laws, including and especially the investigation and appre-

4 hension of criminal aliens, is quintessentially a law enforcement function. Through the INA, 8

5 U.S.C. §§ 1101 et seq., Congress granted the Executive Branch significant authority to control the

6 entry, movement, and other conduct of foreign nationals in the United States. These responsibilities

7 are assigned to law enforcement agencies, as the INA authorizes the Department of Homeland

8 Security (“DHS”), USDOJ, and other Executive agencies to administer and enforce the immigration

9 laws. The INA permits the Executive Branch to exercise considerable discretion to direct enforce-

10 ment pursuant to federal policy objectives. See Arizona v. United States, 567 U.S. 387, 396 (2012).

11

The INA includes several provisions that protect the ability of federal officials to investigate

12 the status of non-citizens in the United States and otherwise enforce the immigration laws. For

13 example, the statute provides that a federal immigration officer “shall have power without warrant

14 . . . to interrogate any alien or person believed to be an alien as to his right to be or to remain in the

15 United States.” 8 U.S.C. § 1357(a)(1). Separately, pursuant to Section 1373, “a Federal, State, or

16 local government entity or official may not prohibit, or in any way restrict, any government entity

17 or official from sending to, or receiving from, [federal immigration authorities] information regard-

18 ing the citizenship or immigration status, lawful or unlawful, of any individual.” Id. § 1373(a). The

19 INA provides that certain classes of non-citizens shall be removed from the United States upon

20 order of the Attorney General or Secretary of Homeland Security. See, e.g., id. §§ 1227(a), 1228.

21 II. DOJ Office of Justice Programs and the Byrne JAG Program

22

Title I of the Omnibus Crime Control and Safe Streets Act of 1968 established the Office of

23 Justice Programs, and provides for OJP to be headed by an Assistant Attorney General. See Pub. L.

24 No. 90-351, 82 Stat. 197 (1968), codified as amended at 34 U.S.C. §§ 10101 et seq. Congress gave

25 the AAG certain “[s]pecific, general and delegated powers,” including the power to “maintain

26 liaison with the executive and judicial branches of the Federal and State governments in matters

27 relating to criminal justice.” 34 U.S.C. § 10102(a)(2). Most notably for this case, the statute also

28

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1 authorizes the AAG to “exercise such other powers and functions as may be vested in [him]

2 pursuant to this chapter or by delegation of the Attorney General, including placing special

3 conditions on all grants, and determining priority purposes for formula grants.” Id. § 10102(a)(6)

4 (emphasis added).

5

The same title of the Omnibus Crime Control Act also established the Byrne JAG Program.

6 See generally 34 U.S.C. §§ 10151-58. Under this program, OJP is authorized to “make grants to

7 States and units of local government . . . to provide additional personnel, equipment, . . . and

8 information systems for criminal justice, including for any one or more of [certain enumerated]

9 programs.” Id. § 10152(a)(1). In the same chapter, “criminal justice” is defined broadly to include

10 various activities of the police, the courts, and “related agencies.” Id. § 10251(a)(1). Various other

11 provisions of the same enactment also apply to OJP and the Byrne JAG Program. See, e.g., id. §

12 10108 (period of availability of grant funds); §§ 10221-10238 (administrative provisions); § 10263

13 (audit requirements and other provisions). To request funds under the Program, applicants must,

14 inter alia, “submit an application to the Attorney General . . . in such form as the Attorney General

15 may require,” id. § 10153(a), and provide a “certification” that “the applicant will comply with all

16 . . . applicable Federal laws,” id., § 10153(a)(5)(D). Before issuing a final disapproval of any

17 application, the Attorney General must “afford[] the applicant reasonable notice of any deficiencies

18 in the application and opportunity for correction and reconsideration.” Id. § 10154.

19

The Byrne JAG Program provides “formula grants” – that is, grants that, when awarded,

20 must follow a statutory formula based on population, the rate of violent crime, and other factors. Id.

21 §§ 10152(a)(1), 10156. Funding under the Program is subject to annual appropriations. For FY

22 2017, Congress appropriated $396,000,000 for the Byrne JAG Program, with certain carve-outs

23 from that amount obligated to specific initiatives. See Consolidated Appropriations Act, 2017, Pub.

24 L. No. 115-31, Div. B, Title II, 131 Stat. 135, 203.

25

The federal grant-making process, including the issuance of Byrne JAG grants, contains

26 several steps. The awarding agency typically issues a solicitation that contains “sufficient infor-

27 mation to help an applicant make an informed decision about whether to submit an application.”

28

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1 See generally Office of Management and Budget, Uniform Administrative Requirements, Cost

2 Principles, and Audit Requirements for Federal Awards (“OMB Uniform Guidance”), 2 C.F.R.

3 § 200.203(c)(2). Applicants respond to the solicitation by submitting an application in the form

4 specified and with the relevant information requested. See generally OJP Grant Process Overview,

5 available at https://ojp.gov/funding/ Apply/GrantProcess.htm. The deadline for States to submit

6 Byrne JAG applications for FY 2017 was August 25, 2017. See Byrne JAG Program, FY 2017

7 State Solicitation (Dkt. No. 27-1 at 2-45).

8

In past years, OJP has included a variety of conditions in Byrne JAG award documents,

9 including, for example, conditions requiring the grantee to comply with regulations pertaining to

10 civil rights and nondiscrimination, conditions requiring that body armor purchased with grant

11 funding meet certain quality standards, and conditions designed to encourage grantees to adopt

12 policies banning employees from text messaging while driving on duty. These conditions have

13 varied over time, depending on national law enforcement necessities and USDOJ priorities.

14

In FY 2016, OJP included for the first time in its Byrne JAG awards an explicit recognition

15 that Section 1373, described above, is an applicable federal law under the Program. See Declaration

16 of Alan R. Hanson ¶ 3 & Ex. A (Attachment 1 hereto).1 The State accepted the Section 1373

17 compliance condition (as well as 54 other conditions) for its FY 2016 grant without objection or

18 legal challenge. See Hanson Decl. ¶ 3 & Ex. A. In July 2017, OJP published a solicitation seeking

19 applications from state governments for participation in the FY 2017 Byrne JAG Program (Dkt. No.

20 27-1 at 2-45). As relevant to the instant motion for preliminary relief, that solicitation notified

21 potential applicants that the award documents for FY 2017 would again include a condition that

22 grantees certify their compliance with Section 1373 (id. at 31).2

23

1 That recognition was prompted by a memorandum issued by USDOJ’s Inspector General,

24

expressing concern that several state and local governments receiving federal grants, including California, may not have been complying with Section 1373. See Mem. from Michael E. Horowitz,

25 Inspector Gen., to Karol V. Mason, Assistant Att’y Gen., Office of Justice Programs, Department of

Justice Referral of Allegations of Potential Violations of 8 U.S.C. § 1373 by Grant Recipients (May

26 31, 2016) (Dkt. No. 27-3 at 58-74).

2 The FY 2017 solicitation also notified potential applicants that the award documents for
27 this Fiscal Year would contain two new special conditions, designed to ensure that grantees would

28

permit access to correctional facilities for immigration authorities to meet with non-citizens and 5

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1

2

III.

The DOJ Office of Community Oriented Policing Services and the Anti-Methamphetamine and Anti-Heroin Task Force Programs

3

In addition to the Byrne JAG Program, plaintiff’s motion refers to two programs

4 administered by the Office of Community Oriented Policing Services (“COPS Office”). Pursuant to

5 authority granted by the Violent Crime Control and Law Enforcement Act of 1994 (“VCCLEA”),

6 the Attorney General created the COPS Office to administer certain community policing grants. See

7 Declaration of Andrew A. Dorr ¶ 2 (Attachment 2 hereto). The Office is headed by a Director

8 appointed by the Attorney General. Id.; 28 C.F.R. §§ 0.119, 0.120.

9

The COPS Office currently administers six programs, including the COPS Anti-Metham-

10 phetamine Program (“CAMP”) and the Anti-Heroin-Task Force Program (“AHTF”). CAMP

11 “provid[es] funds directly to state law enforcement agencies to investigate illicit activities related to

12 the manufacture and distribution of methamphetamine.” COPS Fact Sheet, FY 2017 COPS Anti-

13 Methamphetamine Program, available at https://cops.usdoj.gov/pdf/2017AwardDocs/

14 camp/Fact_Sheet.pdf. AHTF “provid[es] funds to investigate illicit activities related to the distribu-

15 tion of heroin or unlawful distribution of prescriptive opioids, or unlawful heroin and prescription

16 opioid traffickers[.]” COPS Fact Sheet, FY 2017 COPS Anti-Heroin Task Force Program,

17 available at https://cops.usdoj.gov/pdf/2017AwardDocs/ahtf/Fact_Sheet.pdf. Both programs are

18 authorized by the Consolidated Appropriations Act, 2017. 131 Stat. at 207.

19

Like all programs administered by the COPS Office, CAMP and AHTF are discretionary

20 programs, meaning all applicants must compete against each other for limited available funds. See

21 Dorr Decl. ¶ 4. Funding under these programs is subject to annual appropriations. For FY 2017,

22 Congress appropriated $7,000,000 “for competitive grants to State law enforcement agencies in

23 States with high seizures of precursor chemicals, finished methamphetamine, laboratories, and

24 laboratory dump seizures” (i.e., CAMP), and $10,000,000 “for competitive state grants to statewide

25 law enforcement agencies in States with high rates of primary treatment admissions for heroin and

26

27 would notify federal authorities regarding the scheduled release of any non-citizen (Dkt. No. 27-1 at

28

273). Plaintiff challenges these conditions here, but they are not at issue in the instant motion. 6

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1 other opioids” (i.e., AHTF). 131 Stat. at 207.

2

CAMP and AHTF grantees, like all federal grantees, are required to comply with all

3 applicable federal laws. There is no statutorily prescribed method for evaluating CAMP and AHTF

4 applications. Dorr Decl. ¶ 9. Rather, the COPS Office has discretion to determine how best to allo-

5 cate each program’s finite funds every year, and to evaluate and score applications. Id.3 Beginning

6 with FY 2016, the COPS Office has advised each CAMP and AHTF applicant that this requirement

7 includes compliance with 8 U.S.C. § 1373. See Dorr Decl. ¶ 8. In FY 2017, the COPS Office

8 required certification of compliance with Section 1373 as a threshold eligibility requirement. Id.

9 IV. Recent Developments

10

In a challenge brought by Chicago, a district court recently declined to enter a preliminary

11 injunction against the Section 1373 condition in Byrne JAG. See Chicago v. Sessions, 2017 WL

12 4081821, at *8 (noting that “Congress could [rationally] expect an entity receiving federal funds to

13 certify its compliance with [Section 1373], as the entity is – independent of receiving such funds –

14 obligated to comply”) (“Chicago I”). But see Philadelphia v. Sessions, 2017 WL 5489476 (E.D.

15 Pa. Nov. 15, 2017) (enjoining Section 1373 condition as to Philadelphia). More recently, the

16 Chicago court denied the plaintiff’s motion for reconsideration as to its Section 1373 ruling,

17 holding that any review of the City’s compliance with Section 1373 would be “premature.”

18 Chicago v. Sessions, 2017 WL 5499167, at *1 (N.D. Ill. Nov. 16, 2017) (“Chicago II”).

19

California submitted its application for an FY 2017 Byrne JAG award on August 25, 2017.

20 See Hanson Decl. ¶ 4. On November 1, 2017, OJP sent California a letter setting forth its “prelim-

21 inary assessment” of the State’s compliance with Section 1373. Id. ¶ 13 & Ex. F. On November 13,

22 California, as requested, replied in writing. Id. ¶ 14 & Ex. G. At present, OJP is assessing Califor-

23 nia’s letter of November 13, and has not yet reached a decision on the issues. Id. ¶ 15. Further, at

24 this time OJP is not issuing FY 2017 Byrne JAG award documents to any applicants while awaiting

25

26

3 Beginning with FY 2017, the COPS Office offered applicants the opportunity to receive

additional points in the scoring process by certifying the existence of circumstances similar to those
27 called for in the Byrne JAG access and notice conditions described above. See Dorr Decl. ¶ 10.

28

Those scoring factors are not at issue in this motion for preliminary injunction. 7

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1 developments in the Chicago litigation. Id. ¶ 10. California has also submitted applications to the

2 COPS Office for awards under CAMP and AHTF, which also remain pending. See Dorr Decl. ¶ 12.

3

Finally, as explained in plaintiff’s original motion for preliminary injunction and as

4 discussed further below, on October 17, 2017, the California Department of Justice received a

5 request for a proposed statewide voter referendum regarding the Values Act (Dkt. No. 17 at 2 n.2).

6

ARGUMENT

7

A preliminary injunction is “an extraordinary and drastic remedy” that should not be

8 granted “unless the movant, by a clear showing, carries the burden of persuasion.” Lopez v. Brewer,

9 680 F.3d 1068, 1072 (9th Cir. 2012). “A plaintiff seeking a preliminary injunction must establish

10 that he is likely to succeed on the merits, that he is likely to suffer irreparable harm in the absence of

11 preliminary relief, that the balance of equities tips in his favor, and that an injunction is in the public

12 interest.” Winter v. NRDC, 555 U.S. 7, 20 (2008) (emphasis added). Critically, this is “a four-part

13 conjunctive test, not . . . a four-factor balancing test”; thus, Winter “reject[ed] the sliding-scale test

14 as to the irreparable-injury prong” previously used by some courts. U.S. Bank, N.A. v. SFR Invs.

15 Pool 1, LLC, 124 F. Supp. 3d 1063, 1070 (D. Nev. 2015); see Am. Trucking Ass’ns v. City of Los

16 Angeles, 559 F.3d 1046, 1052 (9th Cir. 2009) (“To the extent that our cases have suggested a lesser

17 standard, they are no longer controlling, or even viable.”) (footnote omitted). Plaintiff fails to

18 satisfy any of these requirements for a preliminary injunction.

19 I. Plaintiff Cannot Establish a Likelihood of Success on the Merits

20

“The sine qua non of preliminary injunction inquiry is likelihood of success on the merits:

21 if the moving party cannot demonstrate that he is likely to succeed in his quest, the remaining

22 factors become matters of idle curiosity.” Thomas v. Zachry, 256 F. Supp. 3d 1114, 1118 (D. Nev.

23 2017).

24

A. The Byrne JAG Section 1373 Condition Is Consistent with Law

25

Plaintiff’s first argument is that, notwithstanding that the State is bound to comply with

26 Section 1373, the requirement that the State certify such compliance as a condition of receiving

27 Byrne JAG funds violates both the Spending Clause and the APA. As set forth below, plaintiff’s

28

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1 arguments are unavailing, and thus fail to demonstrate any likelihood of success on the merits.

2

1. The Section 1373 Condition Is Consistent with the Spending Clause

3

Article I of the Constitution confers on Congress the authority to “lay and collect Taxes,

4 Duties, Imposts and Excises, to pay the Debts and provide for the common Defence and general

5 Welfare of the United States.” U.S. Const. art. I, § 8, cl. 1. It is well-established that the Spending

6 Clause authority is “broad,” and empowers Congress to “set the terms on which it disburses federal

7 money to the States[.]” Arlington Cent. Sch. Dist. Bd. of Educ. v. Murphy, 548 U.S. 291, 296

8 (2006); see also, e.g., South Dakota v. Dole, 483 U.S. 203, 206 (1987) (noting that Congress has

9 “repeatedly employed the [spending] power to further broad policy objectives by conditioning

10 receipt of federal moneys upon compliance by the recipient with federal statutory and adminis-

11 trative directives.”) (citations omitted).

12

For purposes of the instant motion, plaintiff does not dispute that the Byrne JAG Section

13 1373 condition is – as required under the Supreme Court’s Spending Clause jurisprudence – both

14 “in pursuit of the general welfare” and “unambiguous[],” thus properly enabling California to

15 “exercise [its] choice” to participate (or not) in the Program “knowingly, cognizant of the conse-

16 quences of [its] participation.” Dole, 483 U.S. at 207 (internal citations omitted).

17

Rather, the sole Spending Clause-related argument presently advanced by the plaintiff is

18 that the Section 1373 compliance condition purportedly does not have a sufficient “nexus” to the

19 JAG program (Dkt. No. 26 at 15-16). According to California, the Section 1373 condition is

20 insufficiently related to the purpose of the Byrne JAG Program because “it requires state and local

21 jurisdictions to comply with a condition to support a different program (the federal government’s

22 civil immigration priorities) than the ‘criminal justice’ program being funded” (id. at 16). This

23 argument fails, on multiple grounds.

24

First, courts have generally found that the relatedness showing does not pose a difficult

25 hurdle. In Dole itself, the Supreme Court upheld conditioning the receipt of federal highway funds

26 on the only loosely-related requirement that a State adopt a minimum drinking age of twenty-one.

27 See 483 U.S. at 208; see also New York, 505 U.S. at 167 (stating that only “some relationship” is

28

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1 necessary between spending conditions and “the purpose of federal spending.”). The Ninth Circuit

2 has emphasized that conditions on federal grants “might be illegitimate if the conditions share no

3 relationship to the federal interest in particular national projects or programs,” Mayweathers v.

4 Newland, 314 F.3d 1062, 1066 (9th Cir. 2002), and characterized this bar as one that, at most,

5 constitutes a “low-threshold” test that “is a far cry from . . . an exacting standard for relatedness,”

6 id. at 1067. As the D.C. Circuit has observed, the Supreme Court has never “overturned Spending

7 Clause legislation on relatedness grounds.” Barbour v. Wash. Metro. Area Transit Auth., 374 F.3d

8 1161, 1168 (D.C. Cir. 2004).

9

Second, plaintiff is simply wrong in viewing immigration enforcement as unrelated to law

10 enforcement. Numerous provisions of the INA link these two subjects. A conviction for any of a

11 wide array of criminal offenses renders an alien removable from this country, see 8 U.S.C.

12 § 1227(a)(2), and thus, once deported, no longer present here with the potential to re-offend. See

13 Demore v. Kim, 538 U.S. 510, 518 (2003) (discussing Congress’s strong interest in effective

14 removal of aliens who have committed criminal offenses); 8 U.S.C. § 1226(a), (c) (authorizing

15 detention of criminal alien during removal proceedings and requiring detention for certain criminal

16 aliens); id. § 1231 (providing for continued detention during removal period). The INA also

17 repeatedly contemplates cooperation among state and local officers and federal officials on immi-

18 gration enforcement. See, e.g., 8 U.S.C. § 1357(g) (providing for formal agreements under which

19 local officers may perform specified immigration functions relating to the investigation, apprehen-

20 sion, or detention of aliens); id. § 1324(c) (authorizing state and local officers to make arrests for

21 violations of INA’s prohibition against smuggling, transporting, or harboring aliens); id. § 1252c

22 (authorizing state and local officers to arrest certain felons who have unlawfully returned). Under

23 authorities such as these, “state officers may perform the functions of an immigration officer.”

24 Arizona, 567 U.S. at 408. Thus, given that the INA expressly contemplates local law enforcement

25 activity with respect to immigration law enforcement, it is perfectly germane and appropriate for

26 USDOJ to condition grant funding to promote this purpose.4

27

4 California’s argument also fails to account for the federal Sex Offender Registration and

28

Notification Act (“SORNA”), 34 U.S.C. § 20901 et seq., which – like the federal immigration 10

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1

Accordingly, because there is a clear relationship between the Section 1373 condition and

2 the Byrne JAG Program’s goals, the condition easily satisfies the “low-threshold” relatedness

3 inquiry. Mayweathers, 314 F.3d at 1067.

4

2. The Section 1373 Condition Is Consistent with the APA

5

Plaintiff further contends that imposition of the Section 1373 condition in Byrne JAG is

6 “arbitrary and capricious” under the APA. But there has been no final determination that California

7 is in violation of the condition, meaning that this APA claim fails at the threshold because the State

8 does not challenge “final agency action.” 5 U.S.C. § 704. Further, even if APA review were some-

9 how available, the challenged condition is well-supported by a reasoned explanation.

10

a. The APA “does not provide judicial review for everything done by an administrative

11 agency.” Invention Submission Corp. v. Rogan, 357 F.3d 452, 459 (4th Cir. 2004) (internal citation

12 omitted)). One limitation is that “[u]nder the [APA], only ‘final agency action’ is subject to judicial

13 review.” Nat’l Parks & Conservation Ass’n v. BLM, 606 F.3d 1058, 1064 (9th Cir. 2010) (quoting 5

14 U.S.C. § 704)). “Agency action is ‘final’ if a minimum of two conditions are met.” Gallo Cattle Co.

15 v. USDA, 159 F.3d 1194, 1198 (9th Cir. 1998). “[F]irst, the action must mark the consummation of

16 the agency’s decision making process . . . [I]t must not be of a merely tentative or interlocutory

17 nature. And second, the action must be one by which rights or obligations have been determined, or

18 from which legal consequences will flow.” Id. at 1198-99. Consistent with this framework, and as

19 relevant here, in the Ninth Circuit, there is no “final agency action” in the context of a federal grant

20 program “until [the agency] has reviewed a grant application and decided to disburse [or withhold]

21 the funds.” Rattlesnake Coal. v. EPA, 509 F.3d 1095, 1103 (9th Cir. 2007).

22

Plaintiff fails to identify any agency action that satisfies these tests for finality. Although

23 OJP has sent California a letter containing a “preliminary assessment” of the State’s compliance

24 regime – is “a civil regulatory scheme rather than a criminal one.” United States v. Elkins, 683 F.3d

25 1039, 1044-45 (9th Cir. 2012). Yet, notwithstanding that SORNA is civil in nature, a state’s

compliance with the same is directly tied, by statute, to its entitlement to its otherwise full allotment

26 of Byrne JAG funding. 34 U.S.C. § 20927(a); see, e.g., United States v. Kebodeaux, 133 S. Ct.

2496, 2504-05 (2013) (observing with approval that SORNA “used Spending Clause grants to
27 encourage States to adopt its uniform definitions and requirements. It did not insist that the States

28

do so.”); United States v. Gould, 568 F.3d 459, 463 n.1 (4th Cir. 2009). 11

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1 with Section 1373, Hanson Decl. ¶ 13 & Ex. F, to which the State has now replied, Id. ¶ 14 & Ex.

2 G, OJP is, at present, still assessing California’s response, and has not yet reached a decision on the

3 issues addressed therein. Id. ¶ 15. This administrative review-and-reconsideration process is statu-

4 torily mandated prior to any “final[] disapprov[al]” of a Bryne JAG grant application, 34 U.S.C.

5 § 10154 – and even were OJP to determine, at the conclusion of this conferral process, to deny

6 plaintiff’s grant application, the State would be entitled to invoke regulatory appeal procedures. See

7 generally 28 C.F.R. Part 18 (Office of Justice Programs hearing and appeal procedures applicable

8 to certain agency actions). Until this administrative appeal process is completed, “judicial review is

9 premature.” San Diego v. Whitman, 242 F.3d 1097, 1101 (9th Cir. 2001).

10

b. Even if APA review of the challenged conditions were available here (which it is not),

11 plaintiff’s claim is unlikely to succeed. Claims arising under the APA are accorded a “narrow

12 standard of review” under which “a court is not to substitute its judgment for that of the agency, and

13 should uphold a decision of less than ideal clarity if the agency’s path may reasonably be

14 discerned.” FCC v. Fox Television Stations, Inc., 556 U.S. 502, 513-14 (2009) (citation omitted).

15 “[I]t suffices that the new policy is permissible under the statute, that there are good reasons for it,

16 and that the agency believes it to be better.” Id. at 515.

17

Here, “the agency’s reasons for” imposing the challenged conditions “were entirely

18 rational.” Fox Television, 556 U.S. at 517. USDOJ publicly offered – before FY 2017 applications

19 were due and before any FY 2017 awards were made – a sound explanation for the challenged

20 conditions. Federal immigration enforcement undoubtedly intersects with criminal justice, at a

21 minimum for the simple reason that a conviction for any of a wide array of criminal offenses

22 renders an alien removable from this country. Once removed, a criminal alien who has committed

23 such an offense – such as an aggravated felony, certain firearm offenses, domestic violence, or child

24 abuse – is no longer present in this country with the potential to re-offend. See 8 U.S.C.

25 § 1227(a)(2). Accordingly, as stated in USDOJ’s July 25, 2017 “Backgrounder on Grant Require-

26 ments,” available at https://www.justice.gov/opa/press-release/file/984346/download, the condi-

27

28

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1 tions have a “goal of increasing information sharing between federal, state, and local law enforce-

2 ment” so that “federal immigration authorities have the information they need to enforce the law

3 and keep our communities safe.”

4

Further, plaintiff’s demand for supporting “studies” or “analysis” (Dkt. No. 26 at 17),

5 ignores that Congress did not intend to encumber agencies with burdensome procedures for

6 determining grant conditions; to the contrary, Congress expressly exempted “grants” from the

7 APA’s notice-and-comment procedures. 5 U.S.C. § 553(a)(2). It suffices that the challenged

8 conditions rationally promote interests in “maintain[ing] liaison” among the various branches of

9 government “in matters relating to criminal justice,” 34 U.S.C. § 10102(a)(2), and in ensuring

10 “appropriate coordination with affected agencies,” id. § 10153(a)(5)(C), and that they comport with

11 the cooperation between federal, state, and local authorities in immigration enforcement that

12 Congress contemplates. See, e.g., 8 U.S.C. §§ 1226(d), 1231, 1357(g), 1373; cf. Fox Television, 556

13 U.S. at 521 (“[E]ven in the absence of evidence, the agency’s predictive judgment (which merits

14 deference) makes entire sense” as “an exercise in logic rather than clairvoyance.”). Finally, while

15 attempting to impose heightened scrutiny because USDOJ has allegedly departed from past

16 practice, California ignores both that compliance with Section 1373 has been required since the

17 statute’s enactment in 1996, and that a requirement to certify compliance with Section 1373 was

18 first imposed by the prior Administration in the FY 2016 grant cycle and accepted at that time by

19 the State as a condition of its Byrne JAG award. See 2016 California Award ¶ 55.

20

For all of these reasons, even if APA review were available, plaintiff is unlikely to succeed

21 on the merits of its claim regarding the Byrne JAG Section 1373 compliance condition.

22

B. Plaintiff Is Unlikely to Succeed in Showing that None of Its Laws

23

Violate Section 1373

24

Plaintiff also seeks an order enjoining the defendants from “withholding, terminating, or

25 clawing back funding” under the Byrne JAG Program or any COPS Office program from “the State

26 and its political subdivisions” based on Section 1373 and any of several state statutes (Dkt. No. 26

27

28

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1 at 1). In other words, plaintiff seeks an order enjoining the defendants from “interpreting or enforc-

2 ing Section 1373” in such a way that any of those state statutes renders the State or its political sub-

3 divisions ineligible for funding under Byrne JAG or any COPS Office program.

4

Plaintiff lacks standing to seek a ruling regarding any state statutes other than the Values

5 Act, and even its request for a ruling on the Values Act is unripe. Alternatively, if plaintiff’s claim

6 regarding the Values Act were justiciable, the State would be unlikely to succeed in showing that

7 that law does not violate Section 1373.

8

1. Plaintiff’s Claims Regarding Compliance with Section 1373

9

Are Non-Justiciable

10

Under Article III of the Constitution, the jurisdiction of the federal courts extends only to

11 “Cases” and “Controversies.” U.S. Const. art. III, § 2, cl. 1. Matters outside this rubric are “non-

12 justiciable.” Or. Bureau of Labor & Indus. ex rel. Richardson v. U.S. W. Commc’ns, Inc., 288 F.3d

13 414, 416 (9th Cir. 2002). Two principles of justiciability are involved here: standing and ripeness.

14 “While standing is concerned with who is a proper party to litigate a particular matter, the doctrines

15 of mootness and ripeness determine when that litigation may occur.” Haw. Cty. Green Party v.

16 Clinton, 14 F. Supp. 2d 1198, 1201 (D. Haw. 1998). Where a plaintiff lacks standing or its claims

17 are unripe, the court lacks jurisdiction, and where jurisdiction is lacking, the plaintiff necessarily

18 cannot show a likelihood of success for purposes of a preliminary injunction. See Pollara v. Radiant

19 Logistics Inc., 2012 WL 12887095, at *5 (C.D. Cal. Sept. 13, 2012) (noting that “standing to bring

20 a claim . . . is a necessary predicate to demonstrate a likelihood of success on the merits”).

21

To satisfy the “irreducible constitutional minimum” of standing, a plaintiff must demon-

22 strate an “injury in fact,” a “fairly traceable” causal connection between the injury and defendant’s

23 conduct, and redressability. Steel Co. v. Citizens for a Better Env’t, 523 U.S. 83, 102-03 (1998). The

24 injury needed for constitutional standing must be “concrete,” “objective,” and “palpable,” not

25 merely “abstract” or “subjective.” See Whitmore v. Arkansas, 495 U.S. 149, 155 (1990); Bigelow v.

26 Virginia, 421 U.S. 809, 816-17 (1975). Additionally, the injury must be “certainly impending”

27

28

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1 rather than “speculative.” Whitmore, 495 U.S. at 157, 158. In short, for the plaintiff to have stand-

2 ing, “an actual, live controversy must exist between parties with adverse legal interests.” Pollution

3 Denim & Co. v. Pollution Clothing Co., 2009 WL 10672270, at *8 (C.D. Cal. Feb. 9, 2009).

4

Constitutional justiciability also requires that a dispute be ripe for judicial consideration –

5 that is, that the challenged action “has been formalized and its effects felt in a concrete way by the

6 challenging parties.” Abbott Labs. v. Gardner, 387 U.S. 136, 148-49 (1967). In other words, “[a]

7 claim is not ripe for adjudication [under the Constitution] if it rests upon contingent future events

8 that may not occur as anticipated, or indeed may not occur at all.” Texas v. United States, 523 U.S.

9 296, 300 (1998) (internal quotation marks omitted).

10

Applying these standards here, the plaintiff cannot show the “injury in fact” needed for

11 constitutional standing, and its claims are not constitutionally ripe for judicial review. First,

12 defendants have not withheld or threatened to withhold grant funding based on any state statute

13 other than the Values Act, such that plaintiff lacks standing to seek a ruling regarding any of the

14 other statutes listed. Second, there is no ripe controversy regarding the Values Act itself because

15 (1) defendants have not yet made a final determination regarding whether the Values Act violates

16 Section 1373, (2) the Act is not currently in effect, and it may never come into effect because of a

17 proposed voter referendum.

18

a. Plaintiff Lacks Standing to Seek a Ruling Regarding

19

Any State Statute Other Than the Values Act

20

As described above, on April 21, 2017, OJP wrote to the California agency responsible for

21 administering Byrne JAG grants, asking that it document its compliance with 8 U.S.C. § 1373. See

22 Hanson Decl. ¶ 11 & Ex. D. That letter did not refer to any specific California statutes. On June 29,

23 2017, the State responded that “there are no state laws of general application that violate Section

24 1373,” and specifically discussed only two enactments – the TRUST Act and the TRUTH Act –

25 asserting that those statutes do not “create tension with Section 1373.” Id. ¶ 12 & Ex. E.

26

In its reply of November 1, 2017, OJP stated that the Department of Justice had determined

27 that two provisions of a different enactment – namely, the Values Act – “may violate 8 U.S.C.

28

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1 § 1373, depending on how your jurisdiction interprets and applies them”: specifically, Sections

2 7284.6(a)(1)(A) and 7284.6(a)(1)(C) and (D) of that Act, which prohibit a law enforcement agency

3 from using money or personnel to “[i]nquir[e] into an individual’s immigration status” or to

4 disclose, with certain exceptions, an individual’s release date, personal information (including home

5 address), or “other information.” Id. ¶ 13 & Ex. F. OJP asked the State to “certify that it interprets

6 and applies [Section 7284.6(a)(1)(A)] to not restrict California officers and employees from

7 requesting information regarding immigration status from federal immigration officers” and that it

8 “interprets and applies [Section 7284.6(a)(1)(C) and (D)] to not restrict California officers from

9 sharing information regarding immigration status with federal immigration officers, including

10 information regarding release date and home address.” Id.

11

California responded on November 13, 2017 – nine days ago – stating (1) that Section

12 7284.6(a)(1)(A) “prohibits law enforcement officers from asking an individual about his or her

13 immigration status, or from asking for that information from non-governmental third parties, but

14 does not restrict law enforcement from inquiring about an individual’s immigration status from

15 government entities,” and (2) that Section 7284.6(a)(1)(C) and (D) prohibit the disclosure of release

16 dates and home addresses, but purportedly “do not violate Section 1373 because Section 1373 only

17 prohibits restrictions on ‘citizenship or immigration status information,’ not other information.” Id.

18 ¶ 14 & Ex. G. OJP has not yet responded to California’s letter of November 13, and has not yet

19 determined administratively whether the State’s laws comply with Section 1373. Id. ¶ 15.

20

Under these circumstances, plaintiff lacks standing to seek a ruling on whether any state

21 laws other than the Values Act violate Section 1373 such that defendants may withhold federal

22 grant funds based on non-compliance. Given that USDOJ has not addressed whether any provisions

23 of California law other than the Values Act may violate Section 1373 and thus render California

24 ineligible for grant funds, there is no “live controversy” regarding whether any other state statutes

25 comply with Section 1373 and no foreseeable “injury in fact” arising out of defendants’ application

26 of any such statutes. See Pollution Denim & Co., 2009 WL 10672270, at *8; Steel Co., 523 U.S. at

27 102-03. Any assumption that defendants might one day withhold grant funds based on any

28

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1 California statute other than the Values Act would be “speculative,” and thus cannot be the basis for

2 standing. See Whitmore, 495 U.S. at 157, 158.

3

b. Plaintiff’s Request for a Ruling Regarding the

4

Values Act Is Unripe

5

Plaintiff’s request for a ruling on whether defendants can withhold grant funds based on the

6 Values Act, is also non-justiciable, for three reasons. First, as noted already, OJP has not yet

7 responded to California’s letter regarding the Values Act, and has not determined administratively

8 whether the Act violates Section 1373. See Hanson Decl. ¶ 15. OJP has only stated that portions of

9 the Values Act “may” violate Section 1373, and has not had an opportunity to fully consider the

10 State’s arguments to the contrary. Id. Exs. D, F. Moreover, OJP’s letter of November 1 stated

11 explicitly that it was only a “preliminary assessment of [California’s] compliance with 8 U.S.C.

12 § 1373” and did not “constitute final agency action.” Id. Ex. F; see 34 U.S.C. § 10223 (stating that

13 OJP’s “determinations, findings, and conclusions shall be final and conclusive upon all

14 applications”). As the district court in Chicago recently explained, “addressing an as-applied

15 challenge to Section 1373 based on [USDOJ’s preliminary determination regarding plaintiff’s

16 compliance] is premature.” Chicago II, 2017 WL 5499167, at *1. Moreover, even after OJP

17 determines whether the Values Act violates Section 1373, the State will have an opportunity to

18 appeal that initial determination administratively. See 34 U.S.C. § 10154; see generally 28 C.F.R.

19 Part 18. OJP could decide, either upon consideration of the State’s letter of November 13, 2017, or

20 upon consideration of any administrative appeal, that the Values Act does not violate Section 1373

21 and thus that USDOJ will not withhold grant funds on that basis. Therefore, plaintiff’s request for a

22 ruling on whether the Values Act violates Section 1373 “rests upon contingent future events that 23 may not occur as anticipated, or indeed may not occur at all.” Texas, 523 U.S. at 300.5

24

Second, the Values Act is not currently in effect, and it may never come into effect because

25

5 Defendants’ alternative argument below that plaintiff is unlikely to show that part of the

Values Act does not violate Section 1373 does not make this claim ripe, given that OJP must still be

26 permitted to consider the State’s arguments in the administrative process. Cf. Ardalan v. McHugh,

2014 WL 3846062, at *12 n.10 (N.D. Cal. Aug. 4, 2014) (noting that “the futility exception [to
27 administrative exhaustion] requires a plaintiff [to] show it is certain that the claim will be denied on

28

appeal, or that resort to administrative remedies is clearly useless”) (citations omitted). 17

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1 of a referendum request. The Values Act was approved by the Governor on October 5, 2017 (Dkt.

2 No. 28-1 p. 54). But on October 17, 2017, the Attorney General received a referendum request

3 (Attachment 3 hereto);6 under California law, proponents of the referendum have until January 3,

4 2018, to submit the requisite number of signatures. If the proposed referendum is submitted with the

5 required signatures by that deadline, the referendum will appear on the ballot for “the next general

6 election.” See Cal. Const. art. II, § 9(c). The Values Act will not go into effect until this process is

7 concluded, and if a referendum on November 6, 2018, results in rejection of the Values Act, it will

8 never become effective.

9

Finally, this case is not justiciable because a ruling that the Values Act does not violate

10 Section 1373 would not free the State from legal jeopardy unless all its laws, together with policies

11 implementing those laws, are consistent with Section 1373. That is a fact-intensive inquiry, and is

12 much better handled through the administrative process rather than through the type of ruling

13 sought here. As noted earlier, that process is ongoing and is narrowing the scope of the dispute

14 between the parties. Importantly, if this Court does address the Values Act, that ruling cannot

15 properly immunize the State from liability under Section 1373 if it turns out, in fact, that the State is

16 implementing the Act in a way that violates Section 1373.

17

Under these circumstances, plaintiff’s request for an order regarding whether the Values Act

18 would violate the Section 1373 compliance condition is constitutionally unripe, in that it “rests upon

19 contingent future events that may not occur as anticipated, or indeed may not occur at all.” Texas,

20 523 U.S. at 300. Thus, any judicial consideration of this issue should await further developments.

21

2. Plaintiff Is Unlikely to Succeed in Showing that None of Its Laws

22

Would Violate the Section 1373 Compliance Condition

23

Alternatively, even if plaintiff’s request for an order against withholding grant funds based

24 on any California laws were justiciable at this point, the State could not establish a likelihood of

25 success on its claim that none of its laws would violate the Section 1373 compliance condition. As

26 explained already, the only state law that may legitimately be at issue here is the California Values

27

6 Also available at https://oag.ca.gov/system/files/initiatives/pdfs/17-0040%20%28

28

Referendum%20of%20SB%2054%29_0.pdf (last visited Nov. 22, 2017). 18

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1 Act, Cal. Gov’t Code §§ 7284-7284.12. Assuming this issue were justiciable, however, plaintiff is

2 unlikely to show that the Values Act is consistent with Section 1373.

3

The Values Act provides, among other things, that California law enforcement agencies

4 shall not use “moneys or personnel to investigate persons “for immigration enforcement purposes,”

5 including by “[p]roviding information regarding a person’s release date or responding to requests

6 for notification by providing release dates or other information unless that information is available

7 to the public, or is in response to a notification request from immigration authorities in accordance

8 with Section 7282.5, or by “[p]roviding personal information, as defined in Section 1798.3 of the

9 Civil Code, about an individual, including, but not limited to, the individual’s home address or work

10 address unless that information is available to the public.” Cal. Gov’t Code § 7284.6(a). Section

11 7282.5 of the Government Code, referenced in the Values Act, sets forth a very specific list of

12 circumstances in which a law enforcement agency is permitted to “cooperate with federal immigra-

13 tion officials,” based mostly on whether the individual in question has committed any of certain

14 listed felonies. Id. § 7282.5(a). Section 1798.3 of the Civil Code, also cited in the Values Act,

15 defines “personal information” as “any information that is maintained by an agency that identifies

16 or describes an individual, including, but not limited to, his or her name, social security number,

17 physical description, home address, home telephone number, education, financial matters, and

18 medical or employment history.” Cal. Civ. Code § 1798.3(a).

19

As described earlier, 8 U.S.C. § 1373 provides, among other things:

20

Notwithstanding any other provision of . . . law, a Federal, State, or local govern-

21

ment entity or official may not prohibit, or in any way restrict, any government

entity or official from sending to, or receiving from, [federal authorities] information

22

regarding the citizenship or immigration status . . . of any individual.

23 8 U.S.C. § 1373(a). The Values Act cannot be squared with this statute.

24

a. Section 1373 forbids a state or local government from prohibiting the exchange of

25 “information regarding” an individual’s immigration status, not merely the individual’s immigra-

26 tion status, as California argues in its attempt to narrow the reach of the federal law. Congress’s use

27 of “information regarding” was clearly intended to broaden the scope of information covered, as

28

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1 demonstrated by comparing Section 1373(a) to Section 1373(c), which uses the alternative phrase

2 “[immigration] status information.” See Dean v. United States, 556 U.S. 568, 573 (2009) (“Where

3 Congress includes particular language in one section of a statute but omits it in another section of

4 the same Act, it is generally presumed that Congress acts intentionally and purposely in the

5 disparate inclusion or exclusion.”) (citations omitted). And the meaning of the word “regarding” is

6 quite broad. See Morales v. Trans World Airlines, 504 U.S. 374, 383 (1992) (citing Black’s Law

7 Dict. 1158 (5th ed. 1979)) (interpreting the closely analogous words “relating to,” and concluding

8 that the “ordinary meaning of these words is a broad one – ‘to stand in some relation; to have

9 bearing or concern; to pertain; refer; to bring into association with or connection with….’”); Davis

10 v. Fenton, 26 F. Supp. 3d 727, 740 (N.D. Ill. 2014) (concluding that the term “regarding” is “just as

11 broad of a term as ‘arising out of’ and ‘relating to’”). The breadth of the provision is also reinforced

12 by the language Congress used, such as making clear that no local policy could “in any way

13 restrict” the sharing of such information, reinforcing Congress’s overarching interest in halting

14 policies that might stymie the sharing of information between local law enforcement and

15 immigration authorities. See Bologna v. San Francisco, 121 Cal. Rptr.3d 46, 414 (Cal. App. 2011)

16 (law “’designed to prevent any State or local law . . . that prohibits or in any way restricts any

17 communication between State and local officials and the INS’”) (quoting House report) (emphasis

18 added). Indeed, California’s cramped reading of Section 1373 would render it largely meaningless,

19 as DHS already is aware of an individual’s legal right to be present in the United States. See

20 Steinle v. San Francisco, 230 F. Supp. 3d 994, 1016 (N.D. Cal. 2017) (explaining that “ICE was

21 already aware of Lopez-Sanchez’s immigration status”). Such an overly narrow interpretation, so as

22 to render the congressional enactment all but meaningless, should not be adopted. See Dkt. No. 26

23 at 19 (“Section 1373 must be read in the context of the rest of the INA.”).

24

b. The Values Act prevents sharing personal and identifying information that plainly

25 qualifies as information regarding immigration status. First, California law defines personal

26 information very broadly as “any information . . . that identifies . . . an individual” such as name or

27 address. Thus, under the law, state officials would be unable to confirm or reveal the identity of

28

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1 individuals in state custody. But a person’s identity and name are highly relevant to determining

2 immigration status and removability: No such evaluation can be made if the person’s identity is not

3 disclosed. And the person’s address directly relates to whether the person is “lawfully present in the

4 United States,” which Congress described as a component of “immigration status.” 8 U.S.C.

5 § 1357(g)(10)(A) (emphasis added); see Webster’s New Intern’l Dict. (2d ed. 1958) (defining

6 “present” as “being in a certain place and not elsewhere”). Identity and other personal information

7 are also relevant to many immigration status issues, such as whether the person was born outside

8 the United States, whether the person derived citizenship from a relative, whether the person quali-

9 fies for immigrant status under 8 U.S.C. § 1101(a)(15), whether the alien’s place of residence quali-

10 fies them as a non-resident visitor, 8 U.S.C. § 1227(a)(1)(C), and to facilitate taking the alien into

11 custody for lawful removal proceedings, id. § 1226(a). The restrictions on sharing personal

12 information cannot be squared with Section 1373.

13

c. The Values Act provisions that prevent the sharing of prisoner release dates also violate

14 Section 1373 because an alien’s release date is information regarding the person’s immigration

15 status. An alien’s release date is directly relevant to when the alien can ultimately be removed from

16 the country. Federal immigration law recognizes the importance of allowing States and localities to

17 impose criminal punishment on individuals who are in this country illegally and commit crimes, to

18 allow state and local governments to vindicate their core criminal law enforcement interests. Thus,

19 federal law specifies that, except in limited circumstances, DHS “may not remove an alien who is

20 sentenced to imprisonment until the alien is released from imprisonment.” 8 U.S.C. § 1231(a)(4).

21 But that law – and the comity interests that underlie it – render the time of an alien’s release from

22 state custody critical information regarding the alien’s immigration status, as the alien is subject to

23 removal only at the end of that custody period. See id. § 1231(a)(1)(B)(iii) (removal period “begins

24 on . . . the date the alien is released from [state criminal] detention”). Similarly, the statute requiring

25 the detention of criminal aliens specifies that immigration detention for removal proceedings must

26 begin “when the alien is released” from state criminal custody. Id. § 1226(c)(1). The Ninth Circuit

27 has held that this statute requires that immigration custody begin immediately upon the release from

28

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1 state criminal custody, underscoring the importance of the release date to the person’s status under

2 the immigration laws. See Preap v. Johnson, 831 F.3d 1193, 1202 (9th Cir. 2016) (Section 1226(c)

3 “governs the full life cycle of the criminal aliens’ detention” including “specifying the requirements

4 for taking them into custody”), petition for cert filed, No. 16-1363 (May 11, 2017). Other INA

5 provisions also confirm that an alien release date is highly relevant to the person’s status under the

6 immigration laws given the relevance of that persons’ location within the United States. See 8

7 U.S.C. § 1357(g)(10)(A) (“immigration status” includes whether individual is “lawfully present in

8 the United States”); id. § 1357(a)(1) (immigration officers “shall have power without warrant . . . to

9 interrogate any alien or person believed to be an alien as to his right to be or to remain in the United

10 States”); id. § 1226(a) (“alien may be arrested and detained” on a warrant). Because a key premise

11 of these immigration statutes is that when an alien commits a crime subject to punishment by a state

12 or locality, that locality will first have the opportunity to prosecute and punish for that crime, and

13 then the alien will be detained to consider whether removal is appropriate and, if so, to effectuate

14 removal. See id. §§ 1226(c) & 1231(a). Given that premise, release date information relates to that

15 persons’ status under the immigration laws because it is a core aspect of the enforcement process

16 Congress designed.

17

In light of all the above, although no final agency decision has been made by OJP, plaintiff

18 is unlikely to show that the Values Act does not violate Section 1373, and the State cannot prevail

19 in its request for an injunction regarding conformity of its laws with Section 1373.

20

C. Plaintiff Is Unlikely to Succeed in Showing that the Section 1373

21

Compliance Condition Violates the Tenth Amendment

22

California’s final argument is that the Section 1373 compliance condition would violate the

23 Tenth Amendment if the statute were construed to “cover” the state statutes identified in plaintiff’s

24 motion (Dkt. No. 26 at 21). The Tenth Amendment provides that “[t]he powers not delegated to the

25 United States by the Constitution, nor prohibited by it to the States, are reserved to the States

26 respectively, or to the people.” It stands for the proposition that “[t]he Federal Government may not

27 compel the States to enact or administer a federal regulatory program” or to “act on the Federal

28

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1 Government’s behalf.” New York, 505 U.S. at 188; NFIB, 567 U.S. at 620.

2

As explained above, only one state statute could possibly become legitimately at issue here

3 under the present circumstances: the Values Act. The question under plaintiff’s Tenth Amendment

4 claim, therefore, is whether applying the Section 1373 compliance condition in such a way that the

5 Values Act violates the condition would “compel the State[] to enact or administer a federal regula-

6 tory program” or to “act on the Federal Government’s behalf.” For several reasons, it would not.

7

First, the dispute here does not involve a federal statutory mandate that directly regulates

8 California, but rather a condition on receipt of federal funds that the State and its subdivisions are

9 free to accept or reject. Thus, the relevant question here is not whether Section 1373, as an indepen-

10 dent statutory obligation, would violate the Tenth Amendment. Instead, the only pertinent question

11 is whether conditioning the receipt of federal funds on compliance with Section 1373 is a valid

12 exercise of the spending power – which, as discussed above, it is. In this context, it is well-settled

13 that the federal government “may offer funds to the States, and may condition those offers on

14 compliance with specified conditions..” NFIB, 567 U.S. at 537; cf. Envtl. Def. Ctr., Inc. v. EPA, 344

15 F.3d 832, 847 (9th Cir. 2003) (“[A]s long as the alternative to implementing a federal regulatory

16 program does not offend the Constitution’s guarantees of federalism, the fact that the alternative is

17 difficult, expensive or otherwise unappealing is insufficient to establish a Tenth Amendment

18 violation.”) (citation omitted). In effect, by requesting funds from the Federal Government, the

19 State acts voluntarily and waives any Tenth Amendment concerns. 7

20

Second, the purpose and effect of Section 1373 and the challenged grant condition are to

21 further the express goals of the INA, not to “commandeer” state officials. As noted earlier, the INA

22

7 As discussed above, SORNA provides an instructive analogy. That statute generally
23 requires States to comply with various requirements related to the maintenance of sex offender

24

databases – including “provid[ing] the information in the registry” to various national and local law enforcement agencies and community organizations – on penalty of forfeiture of 10% of the state’s

25 otherwise allotted Byrne JAG grant funds. 34 U.S.C. § 20927(a). Courts have uniformly rejected

Tenth Amendment challenges to this requirement. As the Ninth Circuit explained, “SORNA does

26 not compel states or state officials to comply with its requirements; rather, Congress engaged in a

constitutionally valid exercise of its spending power by conditioning the receipt of [Byrne JAG]
27 federal funds on the implementation of SORNA.” United States v. Richardson, 754 F.3d 1143, 1146

28 (9th Cir. 2014) (emphasis added).

23

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1 provides that a federal immigration officer “shall have power without warrant . . . to interrogate any

2 alien or person believed to be an alien as to his right to be or to remain in the United States.” 8

3 U.S.C. § 1357(a)(1). The INA also provides that certain classes of non-citizens, including certain

4 criminal aliens, shall be removed from the United States upon the order of the Attorney General or

5 the Secretary of Homeland Security, see, e.g., id. §§ 1227(a), 1228. Federal officials cannot carry

6 out these duties without knowing where those persons are located. Indeed, the legislative history of

7 Section 1373 indicates that the statute was intended to counteract passive resistance to sharing

8 information. See, e.g., S. Rep. No. 104-249, at 19-20 (1996) (noting that “the acquisition,

9 maintenance, and exchange of immigration-related information by State and local agencies is

10 consistent with, and potentially of considerable assistance to, the Federal regulation of immigration

11 and the achieving of the purposes and objectives of the [INA]”).

12

Third, even if an outright mandate rather than a grant condition were involved here, a mere

13 requirement not to prohibit individuals from providing information would not violate the Tenth

14 Amendment. The courts have rejected Tenth Amendment challenges to a number of federal statutes

15 that regulated the handling of information. For example, in Reno v. Condon, the Supreme Court

16 rejected a challenge to a federal law regarding information on motor vehicle operators, which both

17 required States to disclose the information in certain circumstances and prohibited its disclosure in

18 other circumstances. 528 U.S. 141, 143-46, 149-150 (2000).8 Similarly, in Freilich v. Upper

19 Chesapeake Health, Inc., the Fourth Circuit rejected a challenge to a federal statute that required

20 health care entities to provide certain information regarding physicians to the State Board of Medi-

21 cal Examiners, and required state boards to forward that information to a federal database under the

22 auspices. 313 F.3d 205, 213-14 (4th Cir. 2002); see 42 U.S.C. §§ 11133, 11134. In rejecting that

23 claim, the court wrote that the federal statute “does not commandeer the state legislature or execu-

24 tive” and “does not compel states to implement a federal regulatory program either. . . . All that the

25

26

8 Plaintiff objects that the information covered by the Values Act includes “private

information” (Dkt. No. 26 at 22), but the federal statute in Condon regulated the disclosure or non-
27 disclosure of drivers’ “personal information,” including their addresses, “medical or disability

28

information,” photographs, and Social Security numbers. 528 U.S. at 144; 18 U.S.C. § 2725(3). 24

Opposition Prelim. Injunction

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Case 3:17-cv-04701-WHO Document 42 Filed 11/22/17 Page 35 of 39

1 [statute] requires of states is the forwarding of information.” 313 F.3d at 213-14. Further, the

2 Second Circuit has rejected a Tenth Amendment challenge to Section 1373 on this very basis,

3 noting that the statute does not “directly compel states or localities to require or prohibit anything.

4 Rather, [it] prohibit[s] state and local governmental entities or officials only from directly restricting

5 the voluntary exchange of immigration information . . . .” City of New York v. United States, 179

6 F.3d 29, 35 (2d Cir. 1999); accord Chicago I, 2017 WL 4081821, at *10.

7

Fourth, contrary to plaintiff’s contention, the Section 1373 grant condition – again, even

8 assuming it were more than a mere grant condition – does not “command[]” state and local

9 governments “to allow the unfettered use of their resources and personnel to act in furtherance of a

10 federal immigration enforcement program” (Dkt. No. 26 at 22). For this proposition and others,

11 plaintiff cites Printz v. United States, 521 U.S. 898, 918 (1997), but that decision actually undercuts

12 the State’s Tenth Amendment claim. There, the Supreme Court struck down certain provisions of

13 the Brady Act, which required local law enforcement officers to conduct background checks on

14 prospective handgun purchasers. The Act required much more than the forwarding of information,

15 compelling law enforcement officers to “make a reasonable effort to ascertain within 5 business

16 days whether receipt or possession [of a handgun by a prospective purchaser] would be in violation

17 of the law, including research in whatever State and local recordkeeping systems are available and

18 in a national system designated by the Attorney General,” and to provide, upon request, a written

19 statement of the reasons for any contrary determination. Id. at 903. Other federal laws requiring

20 action by state or local officials were cited in support of the constitutionality of those provisions,

21 but the Court rejected the relevance of those laws, observing that some of them were “connected to

22 federal funding measures, and [could] perhaps be more accurately described as conditions upon the

23 grant of federal funding than as mandates to the States” and that others “require[d] only the provi-

24 sion of information to the Federal Government” and thus did not “involve the precise issue before

25 us here, which is the forced participation of the States’ executive in the actual administration of a

26 federal program.” Id. at 917-18. Unlike the Brady Act, Section 1373 only involves the exchange of

27 information with federal authorities, and it is only a prohibition on policies that bar sharing

28

25

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1 information, not an affirmative obligation to share information.

2

Moreover, merely barring a state or local government grantee from prohibiting or

3 restricting the exchange of certain information with federal immigration authorities does not

4 “weaken the State’s ability to regulate the actions of [its] own governmental employees” (Dkt. No.

5 26 at 23), any more than did the statutes at issue in Condon and Freilich. Indeed, the Court in

6 Condon expressly acknowledged that the provisions in that case regarding the disclosure or non-

7 disclosure of driver information would “require time and effort on the part of state employees,” but

8 the Court rejected plaintiff’s argument that those effects constituted a violation of the Tenth

9 Amendment. 528 U.S. at 149-50.

10

Fifth and finally, because only the Values Act is involved here, plaintiff’s motion presents

11 no issue regarding “encourag[ing] residents to report crimes” or potentially “entangling local law

12 enforcement in federal immigration matters” (Dkt. No. 26 at 21). Section 1373 merely protects the

13 Federal Government’s receipt of “information regarding the citizenship or immigration status” of

14 individuals, and the Values Act, as relevant here, only prohibits disclosing release dates, “personal

15 information” such as home addresses, and “other information.” Cal. Gov’t Code § 7284.6(a)(1)(C),

16 (D). In seeking a preliminary injunction, therefore, the State cannot rely on the avowed purposes of

17 the other state statutes it has cited, such as the TRUST Act, which governs when a law enforcement

18 agency may detain an individual at the request of federal authorities, or Penal Code § 422.93, which

19 prohibits “reporting” the victim or witness of a hate crime to federal immigration authorities.

20 II. Plaintiff Fails to Establish Irreparable Harm Absent Preliminary Relief

21

“[P]laintiffs seeking preliminary relief [must] demonstrate that irreparable injury is likely in

22 the absence of an injunction,” not merely that it is possible. Arc of Cal. v. Douglas, 757 F.3d 975,

23 990 (9th Cir. 2014) (quoting Winter, 555 U.S. at 22). Further, “[t]he threat of irreparable harm must

24 . . . be ‘immediate.’” Arcsoft, Inc. v. Cyberlink Corp., 153 F. Supp. 3d 1057, 1071 (N.D. Cal. 2015)

25 (quoting Caribbean Marine Servs. Co. v. Baldridge, 844 F.2d 668, 674 (9th Cir. 1988)). “A plain-

26 tiff must do more than merely allege imminent harm sufficient to establish standing; a plaintiff must

27 demonstrate immediate threatened injury as a prerequisite to preliminary injunctive relief.”

28

26

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1 Boardman v. Pac. Seafood Grp., 822 F.3d 1011, 1022 (9th Cir. 2016) (citation omitted). Further,

2 where the plaintiff “has failed to establish a likelihood of irreparable harm,” a court need not even

3 consider the other requirements. Painsolvers, Inc. v. State Farm Mut. Auto. Ins. Co., 685 F. Supp.

4 2d 1123, 1139 (D. Haw. 2010).

5

Here, as both a preliminary and a dispositive matter, plaintiff’s claim of irreparable harm is

6 belied by its acceptance of a requirement to certify compliance with Section 1373 in the FY 2016

7 Byrne JAG cycle, and its long delay in raising any legal challenge. At minimum, this delay

8 disqualifies the State from demonstrating immediate irreparable harm, as necessary to obtain the

9 relief it here seeks. See Boardman, 822 F.3d at 1022.

10

Further, even apart from California’s own conduct demonstrating a lack of urgency, its

11 claim that the condition causes irreparable harm by attempting to unconstitutionally coerce the State

12 into abandoning its right to self-government also fails. The Supreme Court has admonished that

13 “courts should not conclude that [an enactment] is unconstitutional on this ground unless the

14 coercive nature of an offer is unmistakably clear,” NFIB, 567 U.S. at 681 (plurality), such as where

15 a State is subjected to the risk of losing “over 10 percent of a State’s overall budget” if it declines to

16 adopt certain conditions. Id. at 582 (emphasis added). The amount of potential funding at stake to

17 California through the subject programs does not come close to meeting that threshold. Plaintiff

18 asserts that it expects to receive $28.3 million in FY 2017 Byrne JAG funding, as well as a

19 combined $2.8 million from the two COPS programs (Dkt. No. at 26 at 3-4, 52). However, the

20 State’s FY 2017 budget estimated obligations of more than $125 billion. See California 2017-18

21 State Budget Overview, available at http://www.ebudget.ca.gov/ budget/2017-18EN/#/Home.

22 Thus, the combined funds that are even potentially at issue constitute approximately 0.025% of

23 California’s overall budget. Such a miniscule impact on the State’s finances does not come close to

24 establishing unconstitutional coercion. See NFIB, 567 U.S. at 581 (noting that in Dole “the

25 threatened loss of less than half of one percent of South Dakota’s budget left that State with a

26 ‘prerogative’ to reject Congress’s desired policy”). Plaintiff thus does not meet its burden to

27 demonstrate it will suffer irreparable harm absent preliminary relief.

28

27

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1 2 III.

The Public Interest and the Balance of Equities Militate Against the Entry of a Preliminary Injunction

3

Lastly, a party seeking a preliminary injunction must “establish . . . that the balance of

4 equities tips in [its] favor, and that an injunction is in the public interest.” Winter, 555 U.S. at 20.

5 These factors merge in a suit against the Federal Government. Nken v. Holder, 556 U.S. 418, 435

6 (2009). Here, the public interest weighs heavily against plaintiff’s attempt to enjoin statutorily

7 authorized Executive Branch policies that are designed to promote enforcement of federal immi-

8 gration law in jurisdictions that receive federal law enforcement funds. Courts have routinely held

9 that “the United States has an interest in enforcing federal law . . . .” Sec’y of Labor v. Fitzsimmons,

10 805 F.2d 682, 693 (7th Cir. 1986) (emphasis omitted). The State’s requested relief threatens, in

11 particular, “the public interest in the speedy and effective enforcement of the immigration

12 laws . . . .” Sofinet v. INS, 188 F.3d 703, 708 (7th Cir. 1999), as well as the Federal Government’s

13 interest in seeing that federal funds are used “to further broad policy objectives by conditioning

14 receipt of federal moneys upon compliance by the recipient with federal statutory and

15 administrative directives.” Fullilove v. Klutznick, 448 U.S. 448, 474 (1980).

16

As discussed in the accompanying DHS declaration, the challenged Section 1373

17 compliance condition promotes those interests by promoting operational efficiency by conserving

18 the resources needed by DHS to execute its mission; supporting the federal ability to remove

19 criminal aliens from the country; and helping reduce federal expenditures on the State Criminal

20 Alien Assistance Program, see 8 U.S.C. § 1231(i), under which the federal government compen-

21 sates states and localities for their incarceration of certain criminal aliens. See Declaration of Jim

22 Brown ¶¶ 6-11 (Attachment 4 hereto). At bottom, encouraging cooperation among local govern-

23 ments and federal immigration authorities promotes the public interest in executing federal laws

24 that require removal of criminal aliens. See id. These concrete interests tip the equities in this case

25 sharply toward denying an injunction.

26

CONCLUSION

27

Accordingly, plaintiff’s motion for preliminary injunction should be denied.

28

28

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Case 3:17-cv-04701-WHO Document 42 Filed 11/22/17 Page 39 of 39

1 Dated: November 22, 2017 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. Injunction No. 3:17-cv-04701-WHO

Respectfully submitted, CHAD A. READLER Principal Deputy Assistant Attorney General BRIAN STRETCH United States Attorney JOHN R. TYLER Assistant Director /s/ W. Scott Simpson W. SCOTT SIMPSON (Va. Bar #27487) ANTONIA KONKOLY Trial Attorney Attorneys, Department of Justice Civil Division, Room 7210 Federal Programs Branch 20 Massachusetts Avenue, NW Washington, D.C. 20530 Telephone: (202) 514-3495 Facsimile: (202) 616-8470 E-mail: scott.simpson@usdoj.gov COUNSEL FOR DEFENDANTS JEFFERSON B. SESSIONS III, Attorney General of the United States; ALAN R. HANSON, Acting Assistant Attorney General; and U.S. DEPARTMENT OF JUSTICE
29

Case 3:17-cv-04701-WHO Document 42-1 Filed 11/22/17 Page 1 of 77
California ex rel. Xavier Becerra v. Jefferson B. Sessions III, et al., No. 3:17-cv-04701-WHO
Opposition to Plaintiff’s Amended Motion for Preliminary Injunction
Attachment 1 Declaration of Alan R. Hanson Principal Deputy Assistant Attorney General
Office of Justice Programs U.S. Department of Justice

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EXHIBIT A

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EXHIBIT B

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U.S. Department of Justice Office of Justice Programs
Bureau of Justice Assistance

Grant

PAGE 1 OF 20

1 RECIPIENT NAME AND ADDRESS (Including Zip Code) County of Greenville 301 University Ridge, Suite 600 Greeville, SC 29601
2a GRANTEE IRS/VENDOR NO
[REDACTED]
2b GRANTEE DUNS NO
[REDACTED]
3 PROJECT TITLE Judicial Support and Law Enforcement Enhancements 2017

4 AWARD NUMBER: 2017-DJ-BX-0002

5 PROJECT PERIOD: FROM BUDGET PERIOD: FROM

10/01/2016 TO 09/30/2020 10/01/2016 TO 09/30/2020

6 AWARD DATE 08/23/2017
8 SUPPLEMENT NUMBER 00

7 ACTION Initial

9 PREVIOUS AWARD AMOUNT 10 AMOUNT OF THIS AWARD

$ 0 $ 163,164

11 TOTAL AWARD

$ 163,164

12 SPECIAL CONDITIONS
THE ABOVE GRANT PROJECT IS APPROVED SUBJECT TO SUCH CONDITIONS OR LIMITATIONS AS ARE SET FORTH ON THE ATTACHED PAGE(S)

13 STATUTORY AUTHORITY FOR GRANT This project is supported under FY17(BJA - JAG State and JAG Local) Title I of Pub L No 90-351 (generally codified at 42 U S C 3711 - 3797ff-5), including subpart 1 of part E (codified at 42 U S C 3750 - 3758); see also 28 U S C 530C(a)
14 CATALOG OF DOMESTIC FEDERAL ASSISTANCE (CFDA Number) 16 738 - Edward Byrne Memorial Justice Assistance Grant Program
15 METHOD OF PAYMENT GPRS

AGENCY APPROVAL 16 TYPED NAME AND TITLE OF APPROVING OFFICIAL
Alan R Hanson Acting Assistant Attorney General

GRANTEE ACCEPTANCE 18 TYPED NAME AND TITLE OF AUTHORIZED GRANTEE OFFICIAL
Joseph M Kernell County Administrator

17 SIGNATURE OF APPROVING OFFICIAL

19 SIGNATURE OF AUTHORIZED RECIPIENT OFFICIAL 19A DATE

AGENCY USE ONLY

20 ACCOUNTING CLASSIFICATION CODES

FISCAL FUND BUD

DIV

YEAR CODE ACT OFC REG SUB POMS AMOUNT

21 SDJUGT0339

X

B

DJ

80

00

00

163164

OJP FORM 4000/2 (REV 5-87) PREVIOUS EDITIONS ARE OBSOLETE OJP FORM 4000/2 (REV 4-88)

Case 3:17-cv-04701-WHO Document 42-1 Filed 11/22/17 Page 26 of 77

U.S. Department of Justice Office of Justice Programs
Bureau of Justice Assistance

AWARD CONTINUATION SHEET
Grant

PAGE 2 OF 20

PROJECT NUMBER 2017-DJ-BX-0002

AWARD DATE

08/23/2017

SPECIAL CONDITIONS
1. Requirements of the award; remedies for non-compliance or for materially false statements
The conditions of this award are material requirements of the award. Compliance with any certifications or assurances submitted by or on behalf of the recipient that relate to conduct during the period of performance also is a material requirement of this award.
Failure to comply with any one or more of these award requirements -- whether a condition set out in full below, a condition incorporated by reference below, or a certification or assurance related to conduct during the award period -may result in the Office of Justice Programs ("OJP") taking appropriate action with respect to the recipient and the award. Among other things, the OJP may withhold award funds, disallow costs, or suspend or terminate the award. The Department of Justice ("DOJ"), including OJP, also may take other legal action as appropriate.
Any materially false, fictitious, or fraudulent statement to the federal government related to this award (or concealment or omission of a material fact) may be the subject of criminal prosecution (including under 18 U.S.C. 1001 and/or 1621, and/or 42 U.S.C. 3795a), and also may lead to imposition of civil penalties and administrative remedies for false claims or otherwise (including under 31 U.S.C. 3729-3730 and 3801-3812).
Should any provision of a requirement of this award be held to be invalid or unenforceable by its terms, that provision shall first be applied with a limited construction so as to give it the maximum effect permitted by law. Should it be held, instead, that the provision is utterly invalid or -unenforceable, such provision shall be deemed severable from this award.
2. Applicability of Part 200 Uniform Requirements
The Uniform Administrative Requirements, Cost Principles, and Audit Requirements in 2 C.F.R. Part 200, as adopted and supplemented by DOJ in 2 C.F.R. Part 2800 (together, the "Part 200 Uniform Requirements") apply to this FY 2017 award from OJP.
The Part 200 Uniform Requirements were first adopted by DOJ on December 26, 2014. If this FY 2017 award supplements funds previously awarded by OJP under the same award number (e.g., funds awarded during or before December 2014), the Part 200 Uniform Requirements apply with respect to all funds under that award number (regardless of the award date, and regardless of whether derived from the initial award or a supplemental award) that are obligated on or after the acceptance date of this FY 2017 award.
For more information and resources on the Part 200 Uniform Requirements as they relate to OJP awards and subawards ("subgrants"), see the OJP website at https://ojp.gov/funding/Part200UniformRequirements htm.
In the event that an award-related question arises from documents or other materials prepared or distributed by OJP that may appear to conflict with, or differ in some way from, the provisions of the Part 200 Uniform Requirements, the recipient is to contact OJP promptly for clarification.
3. Compliance with DOJ Grants Financial Guide
The recipient agrees to comply with the DOJ Grants Financial Guide as posted on the OJP website (currently, the "2015 DOJ Grants Financial Guide" available at https://ojp.gov/financialguide/DOJ/index htm), including any updated version that may be posted during the period of performance.

OJP FORM 4000/2 (REV 4-88)

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U.S. Department of Justice Office of Justice Programs
Bureau of Justice Assistance

AWARD CONTINUATION SHEET
Grant

PAGE 3 OF 20

PROJECT NUMBER 2017-DJ-BX-0002

AWARD DATE

08/23/2017

SPECIAL CONDITIONS
4. Required training for Point of Contact and all Financial Points of Contact
Both the Point of Contact (POC) and all Financial Points of Contact (FPOCs) for this award must have successfully completed an "OJP financial management and grant administration training" by 120 days after the date of the recipient's acceptance of the award. Successful completion of such a training on or after January 1, 2015, will satisfy this condition.
In the event that either the POC or an FPOC for this award changes during the period of performance, the new POC or FPOC must have successfully completed an "OJP financial management and grant administration training" by 120 calendar days after-- (1) the date of OJP's approval of the "Change Grantee Contact" GAN (in the case of a new POC), or (2) the date the POC enters information on the new FPOC in GMS (in the case of a new FPOC). Successful completion of such a training on or after January 1, 2015, will satisfy this condition.
A list of OJP trainings that OJP will consider "OJP financial management and grant administration training" for purposes of this condition is available at https://www.ojp.gov/training/fmts htm. All trainings that satisfy this condition include a session on grant fraud prevention and detection.
The recipient should anticipate that OJP will immediately withhold ("freeze") award funds if the recipient fails to comply with this condition. The recipient's failure to comply also may lead OJP to impose additional appropriate conditions on this award.
5. Requirements related to "de minimis" indirect cost rate
A recipient that is eligible under the Part 200 Uniform Requirements and other applicable law to use the "de minimis" indirect cost rate described in 2 C.F.R. 200.414(f), and that elects to use the "de minimis" indirect cost rate, must advise OJP in writing of both its eligibility and its election, and must comply with all associated requirements in the Part 200 Uniform Requirements. The "de minimis" rate may be applied only to modified total direct costs (MTDC) as defined by the Part 200 Uniform Requirements.
6. Requirement to report potentially duplicative funding
If the recipient currently has other active awards of federal funds, or if the recipient receives any other award of federal funds during the period of performance for this award, the recipient promptly must determine whether funds from any of those other federal awards have been, are being, or are to be used (in whole or in part) for one or more of the identical cost items for which funds are provided under this award. If so, the recipient must promptly notify the DOJ awarding agency (OJP or OVW, as appropriate) in writing of the potential duplication, and, if so requested by the DOJ awarding agency, must seek a budget-modification or change-of-project-scope grant adjustment notice (GAN) to eliminate any inappropriate duplication of funding.

OJP FORM 4000/2 (REV 4-88)

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U.S. Department of Justice Office of Justice Programs
Bureau of Justice Assistance

AWARD CONTINUATION SHEET
Grant

PAGE 4 OF 20

PROJECT NUMBER 2017-DJ-BX-0002

AWARD DATE

08/23/2017

SPECIAL CONDITIONS
7. Requirements related to System for Award Management and Universal Identifier Requirements
The recipient must comply with applicable requirements regarding the System for Award Management (SAM), currently accessible at https://www.sam.gov/. This includes applicable requirements regarding registration with SAM, as well as maintaining the currency of information in SAM.
The recipient also must comply with applicable restrictions on subawards ("subgrants") to first-tier subrecipients (first-tier "subgrantees"), including restrictions on subawards to entities that do not acquire and provide (to the recipient) the unique entity identifier required for SAM registration.
The details of the recipient's obligations related to SAM and to unique entity identifiers are posted on the OJP web site at https://ojp.gov/funding/Explore/SAM htm (Award condition: System for Award Management (SAM) and Universal Identifier Requirements), and are incorporated by reference here.
This condition does not apply to an award to an individual who received the award as a natural person (i.e., unrelated to any business or non-profit organization that he or she may own or operate in his or her name).
8. All subawards ("subgrants") must have specific federal authorization
The recipient, and any subrecipient ("subgrantee") at any tier, must comply with all applicable requirements for authorization of any subaward. This condition applies to agreements that -- for purposes of federal grants administrative requirements -- OJP considers a "subaward" (and therefore does not consider a procurement "contract").
The details of the requirement for authorization of any subaward are posted on the OJP web site at https://ojp.gov/funding/Explore/SubawardAuthorization htm (Award condition: All subawards ("subgrants") must have specific federal authorization), and are incorporated by reference here.
9. Specific post-award approval required to use a noncompetitive approach in any procurement contract that would exceed $150,000
The recipient, and any subrecipient ("subgrantee") at any tier, must comply with all applicable requirements to obtain specific advance approval to use a noncompetitive approach in any procurement contract that would exceed the Simplified Acquisition Threshold (currently, $150,000). This condition applies to agreements that -- for purposes of federal grants administrative requirements -- OJP considers a procurement "contract" (and therefore does not consider a subaward).
The details of the requirement for advance approval to use a noncompetitive approach in a procurement contract under an OJP award are posted on the OJP web site at https://ojp.gov/funding/Explore/NoncompetitiveProcurement htm (Award condition: Specific post-award approval required to use a noncompetitive approach in a procurement contract (if contract would exceed $150,000)), and are incorporated by reference here.

OJP FORM 4000/2 (REV 4-88)

Case 3:17-cv-04701-WHO Document 42-1 Filed 11/22/17 Page 29 of 77

U.S. Department of Justice Office of Justice Programs
Bureau of Justice Assistance

AWARD CONTINUATION SHEET
Grant

PAGE 5 OF 20

PROJECT NUMBER 2017-DJ-BX-0002

AWARD DATE

08/23/2017

SPECIAL CONDITIONS 10. Requirements pertaining to prohibited conduct related to trafficking in persons (including reporting requirements and
OJP authority to terminate award)
The recipient, and any subrecipient ("subgrantee") at any tier, must comply with all applicable requirements (including requirements to report allegations) pertaining to prohibited conduct related to the trafficking of persons, whether on the part of recipients, subrecipients ("subgrantees"), or individuals defined (for purposes of this condition) as "employees" of the recipient or of any subrecipient.
The details of the recipient's obligations related to prohibited conduct related to trafficking in persons are posted on the OJP web site at https://ojp.gov/funding/Explore/ProhibitedConduct-Trafficking htm (Award condition: Prohibited conduct by recipients and subrecipients related to trafficking in persons (including reporting requirements and OJP authority to terminate award)), and are incorporated by reference here.
11. Compliance with applicable rules regarding approval, planning, and reporting of conferences, meetings, trainings, and other events
The recipient, and any subrecipient ("subgrantee") at any tier, must comply with all applicable laws, regulations, policies, and official DOJ guidance (including specific cost limits, prior approval and reporting requirements, where applicable) governing the use of federal funds for expenses related to conferences (as that term is defined by DOJ), including the provision of food and/or beverages at such conferences, and costs of attendance at such conferences.
Information on the pertinent DOJ definition of conferences and the rules applicable to this award appears in the DOJ Grants Financial Guide (currently, as section 3.10 of "Postaward Requirements" in the "2015 DOJ Grants Financial Guide").
12. Requirement for data on performance and effectiveness under the award
The recipient must collect and maintain data that measure the performance and effectiveness of work under this award. The data must be provided to OJP in the manner (including within the timeframes) specified by OJP in the program solicitation or other applicable written guidance. Data collection supports compliance with the Government Performance and Results Act (GPRA) and the GPRA Modernization Act of 2010, and other applicable laws.
13. OJP Training Guiding Principles
Any training or training materials that the recipient -- or any subrecipient ("subgrantee") at any tier -- develops or delivers with OJP award funds must adhere to the OJP Training Guiding Principles for Grantees and Subgrantees, available at https://ojp.gov/funding/ojptrainingguidingprinciples htm.
14. Effect of failure to address audit issues
The recipient understands and agrees that the DOJ awarding agency (OJP or OVW, as appropriate) may withhold award funds, or may impose other related requirements, if (as determined by the DOJ awarding agency) the recipient does not satisfactorily and promptly address outstanding issues from audits required by the Part 200 Uniform Requirements (or by the terms of this award), or other outstanding issues that arise in connection with audits, investigations, or reviews of DOJ awards.
15. Potential imposition of additional requirements
The recipient agrees to comply with any additional requirements that may be imposed by the DOJ awarding agency (OJP or OVW, as appropriate) during the period of performance for this award, if the recipient is designated as "highrisk" for purposes of the DOJ high-risk grantee list.

OJP FORM 4000/2 (REV 4-88)

Case 3:17-cv-04701-WHO Document 42-1 Filed 11/22/17 Page 30 of 77

U.S. Department of Justice Office of Justice Programs
Bureau of Justice Assistance

AWARD CONTINUATION SHEET
Grant

PAGE 6 OF 20

PROJECT NUMBER 2017-DJ-BX-0002

AWARD DATE

08/23/2017

SPECIAL CONDITIONS
16. Compliance with DOJ regulations pertaining to civil rights and nondiscrimination - 28 C.F.R. Part 42
The recipient, and any subrecipient ("subgrantee") at any tier, must comply with all applicable requirements of 28 C.F.R. Part 42, specifically including any applicable requirements in Subpart E of 28 C.F.R. Part 42 that relate to an equal employment opportunity program.
17. Compliance with DOJ regulations pertaining to civil rights and nondiscrimination - 28 C.F.R. Part 54
The recipient, and any subrecipient ("subgrantee") at any tier, must comply with all applicable requirements of 28 C.F.R. Part 54, which relates to nondiscrimination on the basis of sex in certain "education programs."
18. Compliance with DOJ regulations pertaining to civil rights and nondiscrimination - 28 C.F.R. Part 38
The recipient, and any subrecipient ("subgrantee") at any tier, must comply with all applicable requirements of 28 C.F.R. Part 38, specifically including any applicable requirements regarding written notice to program beneficiaries and prospective program beneficiaries. Part 38 of 28 C.F.R., a DOJ regulation, was amended effective May 4, 2016.
Among other things, 28 C.F.R. Part 38 includes rules that prohibit specific forms of discrimination on the basis of religion, a religious belief, a refusal to hold a religious belief, or refusal to attend or participate in a religious practice. Part 38 also sets out rules and requirements that pertain to recipient and subrecipient ("subgrantee") organizations that engage in or conduct explicitly religious activities, as well as rules and requirements that pertain to recipients and subrecipients that are faith-based or religious organizations.
The text of the regulation, now entitled "Partnerships with Faith-Based and Other Neighborhood Organizations," is available via the Electronic Code of Federal Regulations (currently accessible at https://www.ecfr.gov/cgibin/ECFR?page=browse), by browsing to Title 28-Judicial Administration, Chapter 1, Part 38, under e-CFR "current" data.
19. Restrictions on "lobbying"
In general, as a matter of federal law, federal funds awarded by OJP may not be used by the recipient, or any subrecipient ("subgrantee") at any tier, either directly or indirectly, to support or oppose the enactment, repeal, modification, or adoption of any law, regulation, or policy, at any level of government. See 18 U.S.C. 1913. (There may be exceptions if an applicable federal statute specifically authorizes certain activities that otherwise would be barred by law.)
Another federal law generally prohibits federal funds awarded by OJP from being used by the recipient, or any subrecipient at any tier, to pay any person to influence (or attempt to influence) a federal agency, a Member of Congress, or Congress (or an official or employee of any of them) with respect to the awarding of a federal grant or cooperative agreement, subgrant, contract, subcontract, or loan, or with respect to actions such as renewing, extending, or modifying any such award. See 31 U.S.C. 1352. Certain exceptions to this law apply, including an exception that applies to Indian tribes and tribal organizations.
Should any question arise as to whether a particular use of federal funds by a recipient (or subrecipient) would or might fall within the scope of these prohibitions, the recipient is to contact OJP for guidance, and may not proceed without the express prior written approval of OJP.

OJP FORM 4000/2 (REV 4-88)

Case 3:17-cv-04701-WHO Document 42-1 Filed 11/22/17 Page 31 of 77

U.S. Department of Justice Office of Justice Programs
Bureau of Justice Assistance

AWARD CONTINUATION SHEET
Grant

PAGE 7 OF 20

PROJECT NUMBER 2017-DJ-BX-0002

AWARD DATE

08/23/2017

SPECIAL CONDITIONS
20. Compliance with general appropriations-law restrictions on the use of federal funds (FY 2017)
The recipient, and any subrecipient ("subgrantee") at any tier, must comply with all applicable restrictions on the use of federal funds set out in federal appropriations statutes. Pertinent restrictions, including from various "general provisions" in the Consolidated Appropriations Act, 2017, are set out at https://ojp.gov/funding/Explore/FY17AppropriationsRestrictions htm, and are incorporated by reference here.
Should a question arise as to whether a particular use of federal funds by a recipient (or a subrecipient) would or might fall within the scope of an appropriations-law restriction, the recipient is to contact OJP for guidance, and may not proceed without the express prior written approval of OJP.
21. Reporting potential fraud, waste, and abuse, and similar misconduct
The recipient, and any subrecipients ("subgrantees") at any tier, must promptly refer to the DOJ Office of the Inspector General (OIG) any credible evidence that a principal, employee, agent, subrecipient, contractor, subcontractor, or other person has, in connection with funds under this award-- (1) submitted a claim that violates the False Claims Act; or (2) committed a criminal or civil violation of laws pertaining to fraud, conflict of interest, bribery, gratuity, or similar misconduct.
Potential fraud, waste, abuse, or misconduct involving or relating to funds under this award should be reported to the OIG by-- (1) mail directed to: Office of the Inspector General, U.S. Department of Justice, Investigations Division, 950 Pennsylvania Avenue, N.W. Room 4706, Washington, DC 20530; (2) e-mail to: oig hotline@usdoj.gov; and/or (3) the DOJ OIG hotline: (contact information in English and Spanish) at (800) 869-4499 (phone) or (202) 616-9881 (fax).
Additional information is available from the DOJ OIG website at https://www.usdoj.gov/oig.

OJP FORM 4000/2 (REV 4-88)

Case 3:17-cv-04701-WHO Document 42-1 Filed 11/22/17 Page 32 of 77

U.S. Department of Justice Office of Justice Programs
Bureau of Justice Assistance

AWARD CONTINUATION SHEET
Grant

PAGE 8 OF 20

PROJECT NUMBER 2017-DJ-BX-0002

AWARD DATE

08/23/2017

SPECIAL CONDITIONS
22. Restrictions and certifications regarding non-disclosure agreements and related matters
No recipient or subrecipient ("subgrantee") under this award, or entity that receives a procurement contract or subcontract with any funds under this award, may require any employee or contractor to sign an internal confidentiality agreement or statement that prohibits or otherwise restricts, or purports to prohibit or restrict, the reporting (in accordance with law) of waste, fraud, or abuse to an investigative or law enforcement representative of a federal department or agency authorized to receive such information.
The foregoing is not intended, and shall not be understood by the agency making this award, to contravene requirements applicable to Standard Form 312 (which relates to classified information), Form 4414 (which relates to sensitive compartmented information), or any other form issued by a federal department or agency governing the nondisclosure of classified information.
1. In accepting this award, the recipient--
a. represents that it neither requires nor has required internal confidentiality agreements or statements from employees or contractors that currently prohibit or otherwise currently restrict (or purport to prohibit or restrict) employees or contractors from reporting waste, fraud, or abuse as described above; and
b. certifies that, if it learns or is notified that it is or has been requiring its employees or contractors to execute agreements or statements that prohibit or otherwise restrict (or purport to prohibit or restrict), reporting of waste, fraud, or abuse as described above, it will immediately stop any further obligations of award funds, will provide prompt written notification to the federal agency making this award, and will resume (or permit resumption of) such obligations only if expressly authorized to do so by that agency.
2. If the recipient does or is authorized under this award to make subawards ("subgrants"), procurement contracts, or both--
a. it represents that--
(1) it has determined that no other entity that the recipient's application proposes may or will receive award funds (whether through a subaward ("subgrant"), procurement contract, or subcontract under a procurement contract) either requires or has required internal confidentiality agreements or statements from employees or contractors that currently prohibit or otherwise currently restrict (or purport to prohibit or restrict) employees or contractors from reporting waste, fraud, or abuse as described above; and
(2) it has made appropriate inquiry, or otherwise has an adequate factual basis, to support this representation; and
b. it certifies that, if it learns or is notified that any subrecipient, contractor, or subcontractor entity that receives funds under this award is or has been requiring its employees or contractors to execute agreements or statements that prohibit or otherwise restrict (or purport to prohibit or restrict), reporting of waste, fraud, or abuse as described above, it will immediately stop any further obligations of award funds to or by that entity, will provide prompt written notification to the federal agency making this award, and will resume (or permit resumption of) such obligations only if expressly authorized to do so by that agency.

OJP FORM 4000/2 (REV 4-88)

Case 3:17-cv-04701-WHO Document 42-1 Filed 11/22/17 Page 33 of 77

U.S. Department of Justice Office of Justice Programs
Bureau of Justice Assistance

AWARD CONTINUATION SHEET
Grant

PAGE 9 OF 20

PROJECT NUMBER 2017-DJ-BX-0002

AWARD DATE

08/23/2017

SPECIAL CONDITIONS
23. Compliance with 41 U.S.C. 4712 (including prohibitions on reprisal; notice to employees)
The recipient (and any subrecipient at any tier) must comply with, and is subject to, all applicable provisions of 41 U.S.C. 4712, including all applicable provisions that prohibit, under specified circumstances, discrimination against an employee as reprisal for the employee's disclosure of information related to gross mismanagement of a federal grant, a gross waste of federal funds, an abuse of authority relating to a federal grant, a substantial and specific danger to public health or safety, or a violation of law, rule, or regulation related to a federal grant.
The recipient also must inform its employees, in writing (and in the predominant native language of the workforce), of employee rights and remedies under 41 U.S.C. 4712.
Should a question arise as to the applicability of the provisions of 41 U.S.C. 4712 to this award, the recipient is to contact the DOJ awarding agency (OJP or OVW, as appropriate) for guidance.
24. Encouragement of policies to ban text messaging while driving
Pursuant to Executive Order 13513, "Federal Leadership on Reducing Text Messaging While Driving," 74 Fed. Reg. 51225 (October 1, 2009), DOJ encourages recipients and subrecipients ("subgrantees") to adopt and enforce policies banning employees from text messaging while driving any vehicle during the course of performing work funded by this award, and to establish workplace safety policies and conduct education, awareness, and other outreach to decrease crashes caused by distracted drivers.
25. Cooperating with OJP Monitoring
The recipient agrees to cooperate with OJP monitoring of this award pursuant to OJP's guidelines, protocols, and procedures, and to cooperate with OJP (including the grant manager for this award and the Office of Chief Financial Officer (OCFO)) requests related to such monitoring, including requests related to desk reviews and/or site visits. The recipient agrees to provide to OJP all documentation necessary for OJP to complete its monitoring tasks, including documentation related to any subawards made under this award. Further, the recipient agrees to abide by reasonable deadlines set by OJP for providing the requested documents. Failure to cooperate with OJP's monitoring activities may result in actions that affect the recipient's DOJ awards, including, but not limited to: withholdings and/or other restrictions on the recipient's access to award funds; referral to the DOJ OIG for audit review; designation of the recipient as a DOJ High Risk grantee; or termination of an award(s).
26. FFATA reporting: Subawards and executive compensation
The recipient must comply with applicable requirements to report first-tier subawards ("subgrants") of $25,000 or more and, in certain circumstances, to report the names and total compensation of the five most highly compensated executives of the recipient and first-tier subrecipients (first-tier "subgrantees") of award funds. The details of recipient obligations, which derive from the Federal Funding Accountability and Transparency Act of 2006 (FFATA), are posted on the OJP web site at https://ojp.gov/funding/Explore/FFATA htm (Award condition: Reporting Subawards and Executive Compensation), and are incorporated by reference here.
This condition, including its reporting requirement, does not apply to-- (1) an award of less than $25,000, or (2) an award made to an individual who received the award as a natural person (i.e., unrelated to any business or non-profit organization that he or she may own or operate in his or her name).

OJP FORM 4000/2 (REV 4-88)

Case 3:17-cv-04701-WHO Document 42-1 Filed 11/22/17 Page 34 of 77

U.S. Department of Justice Office of Justice Programs
Bureau of Justice Assistance

AWARD CONTINUATION SHEET
Grant

PAGE 10 OF 20

PROJECT NUMBER 2017-DJ-BX-0002

AWARD DATE

08/23/2017

27. Use of program income

SPECIAL CONDITIONS

Program income (as defined in the Part 200 Uniform Requirements) must be used in accordance with the provisions of the Part 200 Uniform Requirements. Program income earnings and expenditures both must be reported on the quarterly Federal Financial Report, SF 425.

28. Justice Information Sharing
In order to promote information sharing and enable interoperability among disparate systems across the justice and public safety community, the recipient (and any subrecipient at any tier) must comply with DOJ's Global Justice Information Sharing Initiative (DOJ's Global) guidelines and recommendations for this particular award. The recipient shall conform to the Global Standards Package (GSP) and all constituent elements, where applicable, as described at: https://it.ojp.gov/gsp_grantcondition. The recipient shall document planned approaches to information sharing and describe compliance to the GSP and appropriate privacy policy that protects shared information, or provide detailed justification for why an alternative approach is recommended.

29. Avoidance of duplication of networks
To avoid duplicating existing networks or IT systems in any initiatives funded by BJA for law enforcement information sharing systems which involve interstate connectivity between jurisdictions, such systems shall employ, to the extent possible, existing networks as the communication backbone to achieve interstate connectivity, unless the recipient can demonstrate to the satisfaction of BJA that this requirement would not be cost effective or would impair the functionality of an existing or proposed IT system.

30. Compliance with 28 C.F.R. Part 23
With respect to any information technology system funded or supported by funds under this award, the recipient (and any subrecipient at any tier) must comply with 28 C.F.R. Part 23, Criminal Intelligence Systems Operating Policies, if OJP determines this regulation to be applicable. Should OJP determine 28 C.F.R. Part 23 to be applicable, OJP may, at its discretion, perform audits of the system, as per the regulation. Should any violation of 28 C.F.R. Part 23 occur, the recipient may be fined as per 42 U.S.C. 3789g(c)-(d). The recipient may not satisfy such a fine with federal funds.

31. Protection of human research subjects
The recipient (and any subrecipient at any tier) must comply with the requirements of 28 C.F.R. Part 46 and all OJP policies and procedures regarding the protection of human research subjects, including obtainment of Institutional Review Board approval, if appropriate, and subject informed consent.

32. Confidentiality of data
The recipient (and any subrecipient at any tier) must comply with all confidentiality requirements of 42 U.S.C. 3789g and 28 C.F.R. Part 22 that are applicable to collection, use, and revelation of data or information. The recipient further agrees, as a condition of award approval, to submit a Privacy Certificate that is in accord with requirements of 28 C.F.R. Part 22 and, in particular, 28 C.F.R. 22.23.

OJP FORM 4000/2 (REV 4-88)

Case 3:17-cv-04701-WHO Document 42-1 Filed 11/22/17 Page 35 of 77

U.S. Department of Justice Office of Justice Programs
Bureau of Justice Assistance

AWARD CONTINUATION SHEET
Grant

PAGE 11 OF 20

PROJECT NUMBER 2017-DJ-BX-0002

AWARD DATE

08/23/2017

SPECIAL CONDITIONS 33. Verification and updating of recipient contact information
The recipient must verify its Point of Contact(POC), Financial Point of Contact (FPOC), and Authorized Representative contact information in GMS, including telephone number and e-mail address. If any information is incorrect or has changed, a Grant Adjustment Notice (GAN) must be submitted via the Grants Management System (GMS) to document changes.
34. Law enforcement task forces - required training
Within 120 days of award acceptance, each current member of a law enforcement task force funded with award funds who is a task force commander, agency executive, task force officer, or other task force member of equivalent rank, must complete required online (internet-based) task force training. Additionally, all future task force members must complete this training once during the period of performance for this award, or once every four years if multiple OJP awards include this requirement.
The required training is available free of charge online through the BJA-funded Center for Task Force Integrity and Leadership (www.ctfli.org). The training addresses task force effectiveness, as well as other key issues including privacy and civil liberties/rights, task force performance measurement, personnel selection, and task force oversight and accountability. If award funds are used to support a task force, the recipient must compile and maintain a task force personnel roster, along with course completion certificates.
Additional information regarding the training is available through BJA's web site and the Center for Task Force Integrity and Leadership (www.ctfli.org).
35. Required attendance at BJA-sponsored events
The recipient (and its subrecipients at any tier) must participate in BJA-sponsored training events, technical assistance events, or conferences held by BJA or its designees, upon BJA's request.
36. Justification of consultant rate
Approval of this award does not indicate approval of any consultant rate in excess of $650 per day. A detailed justification must be submitted to and approved by the OJP program office prior to obligation or expenditure of such funds.

OJP FORM 4000/2 (REV 4-88)

Case 3:17-cv-04701-WHO Document 42-1 Filed 11/22/17 Page 36 of 77

U.S. Department of Justice Office of Justice Programs
Bureau of Justice Assistance

AWARD CONTINUATION SHEET
Grant

PAGE 12 OF 20

PROJECT NUMBER 2017-DJ-BX-0002

AWARD DATE

08/23/2017

SPECIAL CONDITIONS
37. Compliance with National Environmental Policy Act and related statutes
Upon request, the recipient (and any subrecipient at any tier) must assist BJA in complying with the National Environmental Policy Act (NEPA), the National Historic Preservation Act, and other related federal environmental impact analyses requirements in the use of these award funds, either directly by the recipient or by a subrecipient. Accordingly, the recipient agrees to first determine if any of the following activities will be funded by the grant, prior to obligating funds for any of these purposes. If it is determined that any of the following activities will be funded by the award, the recipient agrees to contact BJA.
The recipient understands that this condition applies to new activities as set out below, whether or not they are being specifically funded with these award funds. That is, as long as the activity is being conducted by the recipient, a subrecipient, or any third party, and the activity needs to be undertaken in order to use these award funds, this condition must first be met. The activities covered by this condition are:
a. New construction;
b. Minor renovation or remodeling of a property located in an environmentally or historically sensitive area, including properties located within a 100-year flood plain, a wetland, or habitat for endangered species, or a property listed on or eligible for listing on the National Register of Historic Places;
c. A renovation, lease, or any proposed use of a building or facility that will either (a) result in a change in its basic prior use or (b) significantly change its size;
d. Implementation of a new program involving the use of chemicals other than chemicals that are (a) purchased as an incidental component of a funded activity and (b) traditionally used, for example, in office, household, recreational, or education environments; and
e. Implementation of a program relating to clandestine methamphetamine laboratory operations, including the identification, seizure, or closure of clandestine methamphetamine laboratories.
The recipient understands and agrees that complying with NEPA may require the preparation of an Environmental Assessment and/or an Environmental Impact Statement, as directed by BJA. The recipient further understands and agrees to the requirements for implementation of a Mitigation Plan, as detailed at https://bja.gov/Funding/nepa html, for programs relating to methamphetamine laboratory operations.
Application of This Condition to Recipient's Existing Programs or Activities: For any of the recipient's or its subrecipients' existing programs or activities that will be funded by these award funds, the recipient, upon specific request from BJA, agrees to cooperate with BJA in any preparation by BJA of a national or program environmental assessment of that funded program or activity.
38. Establishment of trust fund
If award funds are being drawn down in advance, the recipient (or a subrecipient, with respect to a subaward) is required to establish a trust fund account. (The trust fund may or may not be an interest-bearing account.) The fund, including any interest, may not be used to pay debts or expenses incurred by other activities beyond the scope of the Edward Byrne Memorial Justice Assistance Grant Program (JAG). The recipient also agrees to obligate the award funds in the trust fund (including any interest earned) during the period of performance for the award and expend within 90 days thereafter. Any unobligated or unexpended funds, including interest earned, must be returned to OJP at the time of closeout.

OJP FORM 4000/2 (REV 4-88)

Case 3:17-cv-04701-WHO Document 42-1 Filed 11/22/17 Page 37 of 77

U.S. Department of Justice Office of Justice Programs
Bureau of Justice Assistance

AWARD CONTINUATION SHEET
Grant

PAGE 13 OF 20

PROJECT NUMBER 2017-DJ-BX-0002

AWARD DATE

08/23/2017

SPECIAL CONDITIONS 39. Prohibition on use of award funds for match under BVP program
JAG funds may be used to purchase vests for an agency, but they may not be used as the 50% match for purposes of the DOJ Bulletproof Vest Partnership (BVP) program.
40. Certification of body armor "mandatory wear" policies
The recipient agrees to submit a signed certification that all law enforcement agencies receiving body armor purchased with funds from this award have a written "mandatory wear" policy in effect. The recipient must keep signed certifications on file for any subrecipients planning to utilize funds from this award for ballistic-resistant and stabresistant body armor purchases. This policy must be in place for at least all uniformed officers before any funds from this award may be used by an agency for body armor. There are no requirements regarding the nature of the policy other than it be a mandatory wear policy for all uniformed officers while on duty.
41. Body armor - compliance with NIJ standards
Ballistic-resistant and stab-resistant body armor purchased with JAG award funds may be purchased at any threat level, make or model, from any distributor or manufacturer, as long as the body armor has been tested and found to comply with applicable National Institute of Justice ballistic or stab standards and is listed on the NIJ Compliant Body Armor Model List (https://nij.gov/). In addition, ballistic-resistant and stab-resistant body armor purchased must be American-made. The latest NIJ standard information can be found here: https://nij.gov/topics/technology/bodyarmor/pages/safety-initiative.aspx.
42. Required monitoring of subawards
The recipient must monitor subawards under this JAG award in accordance with all applicable statutes, regulations, award conditions, and the DOJ Grants Financial Guide, and must include the applicable conditions of this award in any subaward. Among other things, the recipient is responsible for oversight of subrecipient spending and monitoring of specific outcomes and benefits attributable to use of award funds by subrecipients. The recipient agrees to submit, upon request, documentation of its policies and procedures for monitoring of subawards under this award.
43. Reporting requirements
The recipient must submit quarterly Federal Financial Reports (SF-425) and semi-annual performance reports through OJP's GMS (https://grants.ojp.usdoj.gov). Consistent with the Department's responsibilities under the Government Performance and Results Act (GPRA) and the GPRA Modernization Act of 2010, the recipient must provide data that measure the results of its work. The recipient must submit quarterly performance metrics reports through BJA's Performance Measurement Tool (PMT) website (www.bjaperformancetools.org). For more detailed information on reporting and other JAG requirements, refer to the JAG reporting requirements webpage. Failure to submit required JAG reports by established deadlines may result in the freezing of grant funds and future High Risk designation.
44. Required data on law enforcement agency training
Any law enforcement agency receiving direct or sub-awarded funding from this JAG award must submit quarterly accountability metrics data related to training that officers have received on the use of force, racial and ethnic bias, deescalation of conflict, and constructive engagement with the public.

OJP FORM 4000/2 (REV 4-88)

Case 3:17-cv-04701-WHO Document 42-1 Filed 11/22/17 Page 38 of 77

U.S. Department of Justice Office of Justice Programs
Bureau of Justice Assistance

AWARD CONTINUATION SHEET
Grant

PAGE 14 OF 20

PROJECT NUMBER 2017-DJ-BX-0002

AWARD DATE

08/23/2017

45. Prohibited Expenditures List

SPECIAL CONDITIONS

Award funds may not be used for items that are listed on the Prohibited Expenditure List at the time of purchase or acquisition, including as the list may be amended from time to time. The Prohibited Expenditure List may be accessed here: https://www.bja.gov/funding/JAGControlledPurchaseList.pdf

46. Controlled expenditures - prior written approval required
Award funds may not be used for items that are listed on the Controlled Expenditure List at the time of purchase or acquisition, including as the list may be amended from time to time, without explicit written prior approval from BJA. The Controlled Expenditure List, and instructions on how to request approval for purchase or acquisitions are set out at https://www.bja.gov/funding/JAGControlledPurchaseList.pdf

47. Controlled expenditures - incident reporting
If an agency uses award funds to purchase or acquire any item on the Controlled Expenditure List at the time of purchase or acquisition, including as the list may be amended from time to time, the agency must collect and retain (for at least 3 years) certain information about the use of-- (1) any federally-acquired Controlled Equipment in the agency's inventory, and (2) any other controlled equipment in the same category as the federally-acquired controlled equipment in the agency's inventory, regardless of source; and the agency must make that information available to BJA upon request. Details about what information must be collected and retained are set out at https://ojp.gov/docs/LEEquipment-WG-Final-Report.pdf.

48. Sale of items on Controlled Expenditure List
Notwithstanding the provision of the Part 200 Uniform Requirements set out at 2 C.F.R. 200.313, no equipment listed on the Controlled Expenditure List that is purchased with award funds may be transferred or sold to a third party, except as described below:
a. Agencies may transfer or sell any controlled equipment, except riot helmets and riot shields, to a Law Enforcement Agency (LEA) after obtaining prior written approval from BJA. As a condition of that approval, the acquiring LEA will be required to submit information and certifications to BJA as if it were requesting approval to use award funds for the initial purchase of items on the Controlled Expenditure List.
b. Agencies may not transfer or sell any riot helmets or riot shields purchased under this award.
c. Agencies may not transfer or sell any Controlled Equipment purchased under this award to non-LEAs, with the exception of fixed wing aircraft, rotary wing aircraft, and command and control vehicles. Before any such transfer or sale is finalized, the agency must obtain prior written approval from BJA. All law enforcement-related and other sensitive or potentially dangerous components, and all law enforcement insignias and identifying markings must be removed prior to transfer or sale.
The recipient must notify BJA prior to the disposal of any items on the Controlled Expenditure List purchased with award funds, and must abide by any applicable laws (including regulations) in such disposal.

49. Prohibited or controlled expenditures - Effect of failure to comply
Failure to comply with an award condition related to prohibited or controlled expenditures may result in denial of any further approvals of controlled expenditures under this or other federal awards.

OJP FORM 4000/2 (REV 4-88)

Case 3:17-cv-04701-WHO Document 42-1 Filed 11/22/17 Page 39 of 77

U.S. Department of Justice Office of Justice Programs
Bureau of Justice Assistance

AWARD CONTINUATION SHEET
Grant

PAGE 15 OF 20

PROJECT NUMBER 2017-DJ-BX-0002

AWARD DATE

08/23/2017

SPECIAL CONDITIONS
50. Controlled expenditures - Standards
Consistent with recommendation 2.1 of Executive Order 13688, a law enforcement agency that acquires controlled equipment with award funds must adopt robust and specific written policies and protocols governing General Policing Standards and Specific Controlled Equipment Standards. General Policing Standards includes policies on (a) Community Policing; (b) Constitutional Policing; and (c) Community Input and Impact Considerations. Specific Controlled Equipment Standards includes policies specifically related to (a) Appropriate Use of Controlled Equipment; (b) Supervision of Use; (c) Effectiveness Evaluation; (d) Auditing and Accountability; and (e) Transparency and Notice Considerations. Upon OJP's request, the recipient must provide a copy of the General Policing Standards and Specific Controlled Equipment Standards, and any related policies and protocols.
51. Authorization to obligate (federal) award funds to reimburse certain project costs incurred on or after October 1, 2016
The recipient may obligate (federal) award funds only after the recipient makes a valid acceptance of the award. As of the first day of the period of performance for the award (October 1, 2016), however, the recipient may choose to incur project costs using non-federal funds, but any such project costs are incurred at the recipient's risk until, at a minimum-- (1) the recipient makes a valid acceptance of the award, and (2) all applicable withholding conditions are removed by OJP (via a Grant Adjustment Notice). (A withholding condition is a condition in the award document that precludes the recipient from obligating, expending, or drawing down all or a portion of the award funds until the condition is removed.)
Except to the extent (if any) that an award condition expressly precludes reimbursement of project costs incurred "atrisk," if and when the recipient makes a valid acceptance of this award and OJP removes each applicable withholding condition through a Grant Adjustment Notice, the recipient is authorized to obligate (federal) award funds to reimburse itself for project costs incurred "at-risk" earlier during the period of performance (such as project costs incurred prior to award acceptance or prior to removal of an applicable withholding condition), provided that those project costs otherwise are allowable costs under the award.
Nothing in this condition shall be understood to authorize the recipient (or any subrecipient at any tier) to use award funds to "supplant" State or local funds in violation of the recipient's certification (executed by the chief executive of the State or local government) that federal funds will be used to increase the amounts of such funds that would, in the absence of federal funds, be made available for law enforcement activities.
52. "Certification of Compliance with 8 U.S.C. 1373" required for valid award acceptance by a unit of local government
In order validly to accept this award, the applicant local government must submit the required "Certification of Compliance with 8 U.S.C. 1373" (executed by the chief legal officer of the local government). Unless that executed certification either-- (1) is submitted to OJP together with the fully-executed award document, or (2) is uploaded in OJP's GMS no later than the day the signed award document is submitted to OJP, any submission by a unit of local government that purports to accept the award is invalid.
If an initial award-acceptance submission by the recipient is invalid, once the unit of local government does submit the necessary certification regarding 8 U.S.C. 1373, it may submit a fully-executed award document executed by the unit of local government on or after the date of that certification.
For purposes of this condition, "local government" does not include any Indian tribes.

OJP FORM 4000/2 (REV 4-88)

Case 3:17-cv-04701-WHO Document 42-1 Filed 11/22/17 Page 40 of 77

U.S. Department of Justice Office of Justice Programs
Bureau of Justice Assistance

AWARD CONTINUATION SHEET
Grant

PAGE 16 OF 20

PROJECT NUMBER 2017-DJ-BX-0002

AWARD DATE

08/23/2017

SPECIAL CONDITIONS
53. Ongoing compliance with 8 U.S.C. 1373 is required
1. With respect to the "program or activity" funded in whole or part under this award (including any such "program or activity" of any subrecipient at any tier), throughout the period of performance for the award, no State or local government entity, -agency, or -official may prohibit or in any way restrict-- (1) any government entity or -official from sending or receiving information regarding citizenship or immigration status as described in 8 U.S.C. 1373(a); or (2) a government entity or -agency from sending, requesting or receiving, maintaining, or exchanging information regarding immigration status as described in 8 U.S.C. 1373(b). For purposes of this award, any prohibition (or restriction) that violates this condition is an "information-communication restriction."
2. Certifications from subrecipients. The recipient may not make a subaward to a State or local government or a "public" institution of higher education, unless it first obtains a certification of compliance with 8 U.S.C. 1373, properly executed by the chief legal officer of the jurisdiction or institution that would receive the subaward, using the appropriate form available at https://ojp.gov/funding/Explore/SampleCertifications-8USC1373 htm. Similarly, the recipient must require that no subrecipient (at any tier) may make a further subaward to a State or local government or a "public" institution of higher education, unless it first obtains a certification of compliance with 8 U.S.C. 1373, properly executed by the chief legal officer of the jurisdiction or institution that would receive the further subaward, using the appropriate OJP form.
3. The recipient's monitoring responsibilities include monitoring of subrecipient compliance with the requirements of this condition.
4. Allowable costs. Compliance with these requirements is an authorized and priority purpose of this award. To the extent that such costs are not reimbursed under any other federal program, award funds may be obligated (including for authorized reimbursements) for the reasonable, necessary, and allocable costs (if any) that the recipient, or any subrecipient at any tier that is a State or local government or a "public" institution of higher education, incurs to implement this condition.
5. Rules of Construction
A. For purposes of this condition:
(1) "State" and "local government" include any agency or other entity thereof, but not any institution of higher education or any Indian tribe.
(2) A "public" institution of higher education is one that is owned, controlled, or directly funded by a State or local government.
(3) "Program or activity" means what it means under title VI of the Civil Rights Act of 1964 (see 42 U.S.C. 2000d-4a).
(4) "Immigration status" means what it means for purposes of 8 U.S.C. 1373 (Illegal Immigration Reform and Immigrant Responsibility Act of 1996); and terms that are defined in 8 U.S.C. 1101 (Immigration and Nationality Act) mean what they mean under that section 1101, except that the term "State" also shall include American Samoa (cf. 42 U.S.C. 901(a)(2)).
(5) Pursuant to the provisions set out at (or referenced in) 8 U.S.C. 1551 note ("Abolition … and Transfer of Functions"), references to the "Immigration and Naturalization Service" in 8 U.S.C. 1373 are to be read as references to particular components of the Department of Homeland Security (DHS).
B. Nothing in this condition shall be understood to authorize or require any recipient, any subrecipient at any tier, any State or local government, any "public" institution of higher education, or any other entity (or individual) to violate any federal law, including any applicable civil rights or nondiscrimination law.

OJP FORM 4000/2 (REV 4-88)

Case 3:17-cv-04701-WHO Document 42-1 Filed 11/22/17 Page 41 of 77

U.S. Department of Justice Office of Justice Programs
Bureau of Justice Assistance

AWARD CONTINUATION SHEET
Grant

PAGE 17 OF 20

PROJECT NUMBER 2017-DJ-BX-0002

AWARD DATE

08/23/2017

SPECIAL CONDITIONS
IMPORTANT NOTE: Any questions about the meaning or scope of this condition should be directed to OJP, before award acceptance.
54. Authority to obligate award funds contingent on compliance with 8 U.S.C. 1373; unallowable costs; obligation to notify
1. If the recipient is a State or local government--
A. The recipient may not obligate award funds if, at the time of the obligation, the "program or activity" of the recipient (or of any subrecipient at any tier that is a either a State or unit of local government or a "public" institution of higher education) that is funded in whole or in part with award funds is subject to any "information-communication restriction."
B. In addition, with respect to any project costs it incurs "at risk," the recipient may not obligate award funds to reimburse itself if -- at the time it incurs such costs -- the "program or activity" of the recipient (or of any subrecipient at any tier that is a either a State or unit of local government or a "public" institution of higher education) that would be reimbursed in whole or in part with award funds was subject to any "information-communication restriction."
C. Any drawdown of award funds by the recipient shall be considered, for all purposes, to be a material representation by the recipient to OJP that, as of the date the recipient requests the drawdown, the recipient and all subrecipients (regardless of tier) are in compliance with 8 U.S.C. 1373.
D. The recipient must promptly notify OJP (in writing) if the recipient, from its requisite monitoring of compliance with award conditions or otherwise, has credible evidence that indicates that the funded "program or activity" of the recipient, or of any subrecipient at any tier that is either a State or a local government or a "public" institution of higher education, may be subject to any "information-communication restriction." In addition, any subaward (at any tier) to a subrecipient that is either a State or a local government or a "public" institution of higher education must require prompt notification to the entity that made the subaward, should the subrecipient such credible evidence regarding an "information-communication restriction."
2. Any subaward (at any tier) to a subrecipient that is either a State or a local government or a "public" institution of higher education must provide that the subrecipient may not obligate award funds if, at the time of the obligation, the "program or activity" of the subrecipient (or of any further such subrecipient at any tier) that is funded in whole or in part with award funds is subject to any "information-communication restriction."
3. Absent an express written determination by DOJ to the contrary, based upon a finding by DOJ of compelling circumstances (e.g., a small amount of award funds obligated by the recipient at the time of a subrecipient's minor and transitory non-compliance, which was unknown to the recipient despite diligent monitoring), any obligations of award funds that, under this condition, may not be made shall be unallowable costs for purposes of this award. In making any such determination, DOJ will give great weight to evidence submitted by the recipient that demonstrates diligent monitoring of subrecipient compliance with the requirements set out in the award condition entitled "Ongoing compliance with 8 U.S.C. 1373 is required."
4. Rules of Construction
A. For purposes of this condition "information-communication restriction" has the meaning set out in the award condition entitled "Ongoing compliance with 8 U.S.C. 1373 is required."
B. Both the "Rules of Construction" and the "Important Note" set out in the award condition entitled "Ongoing compliance with 8 U.S.C. 1373 is required" are incorporated by reference as though set forth here in full.

OJP FORM 4000/2 (REV 4-88)

Case 3:17-cv-04701-WHO Document 42-1 Filed 11/22/17 Page 42 of 77

U.S. Department of Justice Office of Justice Programs
Bureau of Justice Assistance

AWARD CONTINUATION SHEET
Grant

PAGE 18 OF 20

PROJECT NUMBER 2017-DJ-BX-0002

AWARD DATE

08/23/2017

SPECIAL CONDITIONS 55. Required State-level rules or practices related to aliens; allowable costs
The following provisions apply to the recipient of this award, if the recipient is a State government, and also apply to any State-government subrecipient at any tier (whether or not the recipient is a State government).
1. Requirements
With respect to the "program or activity" that is funded (in whole or in part) by this award, as of the date the recipient accepts this award, and throughout the remainder of the period of performance for the award--
A. A State statute, or a State rule, -regulation, -policy, or -practice, must be in place that is designed to ensure that agents of the United States acting under color of federal law in fact are given to access any State (or State-contracted) correctional facility for the purpose of permitting such agents to meet with individuals who are (or are believed by such agents to be) aliens and to inquire as to such individuals' right to be or remain in the United States.
B. A State statute, or a State rule, -regulation, -policy, or -practice, must be in place that is designed to ensure that, when a State (or State-contracted) correctional facility receives from DHS a formal written request authorized by the Immigration and Nationality Act that seeks advance notice of the scheduled release date and time for a particular alien in such facility, then such facility will honor such request and -- as early as practicable (see para. 4.B. of this condition) -- provide the requested notice to DHS.
2. Monitoring
The recipient's monitoring responsibilities include monitoring of subrecipient compliance with the requirements of this condition.
3. Allowable costs
Compliance with these requirements is an authorized and priority purpose of this award. To the extent that such costs are not reimbursed under any other federal program, award funds may be obligated (including for authorized reimbursements) for the reasonable, necessary, and allocable costs (if any) of-- (1) developing and putting into place statutes, rules, regulations, policies, and practices to satisfy this condition, and (2) permitting access as described in para. 1.A. above, and (3) honoring any request from DHS that is encompassed by para. 1.B. above.
4. Rules of construction
A. For purposes of this condition--
(1) the term "alien" means what it means under section 101 of the Immigration and Nationality Act (see 8 U.S.C. 1101(a)(3)).
(2) the term "correctional facility" means what it means under the Title I of the Omnibus Crime Control and Safe Streets Act of 1968 (see 42 U.S.C. 3791(a)(7)).
B. Nothing in this condition shall be understood to authorize or require any recipient, any subrecipient at any tier, any State or local government, or any other entity or individual to maintain (or detain) any individual in custody beyond the date and time the individual would have been released in the absence of this condition.
Current DHS practice is ordinarily to request advance notice of scheduled release "as early as practicable (at least 48 hours, if possible)." (See DHS Form I-247A (3/17)). In the event that (e.g., in light of the date DHS made such request) the scheduled release date and time for an alien are such as not to permit the advance notice that DHS has requested, it shall not be a violation of this condition to provide only as much advance notice as practicable.

OJP FORM 4000/2 (REV 4-88)

Case 3:17-cv-04701-WHO Document 42-1 Filed 11/22/17 Page 43 of 77

U.S. Department of Justice Office of Justice Programs
Bureau of Justice Assistance

AWARD CONTINUATION SHEET
Grant

PAGE 19 OF 20

PROJECT NUMBER 2017-DJ-BX-0002

AWARD DATE

08/23/2017

SPECIAL CONDITIONS NOTE: Current DHS practice is to use one form (DHS Form I-247A (3/17)) for two distinct purposes -- to request advance notice of scheduled release, and to request that an individual be detained for up to 48 hours AFTER the scheduled release. This condition imposes NO requirements as to such DHS requests for detention.
C. Both the "Rules of Construction" and the "Important Note" set out in the award condition entitled "Ongoing compliance with 8 U.S.C. 1373 is required" are incorporated by reference as though set forth here in full.
56. Required local-government-level rules or practices related to aliens; allowable costs
The following provisions apply to the recipient of this award, if the recipient is a unit of local government, and also apply to any local-government subrecipient of this award at any tier (whether or not the recipient itself is a unit of local government).
1. Requirements
With respect to the "program or activity" that is funded (in whole or in part) by this award, as of the date the recipient accepts this award, and throughout the remainder of the period of performance for the award--
A. A local ordinance, -rule, -regulation, -policy, or -practice (or an applicable State statute, -rule, -regulation, policy, or -practice) must be in place that is designed to ensure that agents of the United States acting under color of federal law in fact are given access a local-government (or local-government-contracted) correctional facility for the purpose of permitting such agents to meet with individuals who are (or are believed by such agents to be) aliens and to inquire as to such individuals' right to be or remain in the United States.
B. A local ordinance, -rule, -regulation, -policy, or -practice (or an applicable State statute, -rule, -regulation, policy, or -practice) must be in place that is designed to ensure that, when a local-government (or local-governmentcontracted) correctional facility receives from DHS a formal written request authorized by the Immigration and Nationality Act that seeks advance notice of the scheduled release date and time for a particular alien in such facility, then such facility will honor such request and -- as early as practicable (see "Rules of Construction" incorporated by para. 4.B. of this condition) -- provide the requested notice to DHS.
2. Monitoring
The recipient's monitoring responsibilities include monitoring of subrecipient compliance with the requirements of this condition.
3. Allowable costs
Compliance with these requirements is an authorized and priority purpose of this award. To the extent that such costs are not reimbursed under any other federal program, award funds may be obligated (including for authorized reimbursements) for the reasonable, necessary, and allocable costs (if any) of-- (1) developing and putting into place statutes, ordinances, rules, regulations, policies, and practices to satisfy this condition, (2) permitting access as described in para. 1.A. above, and (3) honoring any request from DHS that is encompassed by para. 1.B. above.
4. Rules of construction
A. The "Rules of Construction" and the "Important Note" set out in the award condition entitled "Ongoing compliance with 8 U.S.C. 1373 is required" are incorporated by reference as though set forth here in full.
B. The "Rules of Construction" set out in the award condition entitled "Required State-level rules or practices related to aliens; allowable costs" are incorporated by reference as though set forth here in full.

OJP FORM 4000/2 (REV 4-88)

Case 3:17-cv-04701-WHO Document 42-1 Filed 11/22/17 Page 44 of 77

U.S. Department of Justice Office of Justice Programs
Bureau of Justice Assistance

AWARD CONTINUATION SHEET
Grant

PAGE 20 OF 20

PROJECT NUMBER 2017-DJ-BX-0002

AWARD DATE

08/23/2017

SPECIAL CONDITIONS 57. Use of funds for DNA testing; upload of DNA profiles
If award funds are used for DNA testing of evidentiary materials, any resulting eligible DNA profiles must be uploaded to the Combined DNA Index System ("CODIS," the DNA database operated by the FBI) by a government DNA laboratory with access to CODIS.
No profiles generated under this award may be entered or uploaded into any non-governmental DNA database without prior express written approval from BJA.
Award funds may not be used for the purchase of DNA equipment and supplies unless the resulting DNA profiles may be accepted for entry into CODIS.
58. Encouragement of submission of "success stories"
BJA strongly encourages the recipient to submit annual (or more frequent) JAG success stories. To submit a success story, sign in to a My BJA account at https://www.bja.gov/Login.aspx to access the Success Story Submission form. If the recipient does not yet have a My BJA account, please register at https://www.bja.gov/profile.aspx. Once registered, one of the available areas on the My BJA page will be "My Success Stories." Within this box, there is an option to add a Success Story. Once reviewed and approved by BJA, all success stories will appear on the BJA Success Story web page at https://www.bja.gov/SuccessStoryList.aspx.

OJP FORM 4000/2 (REV 4-88)

Case 3:17-cv-04701-WHO Document 42-1 Filed 11/22/17 Page 45 of 77
EXHIBIT C

Case 3:17-cv-04701-WHO Document 42-1 Filed 11/22/17 Page 46 of 77

U.S. Department of Justice Office of Justice Programs
Bureau of Justice Assistance

Grant

PAGE 1 OF 20

1 RECIPIENT NAME AND ADDRESS (Including Zip Code) City of Binghamton 38 Hawley Street Binghamton, NY 13901-3777
2a GRANTEE IRS/VENDOR NO
[REDACTED]
2b GRANTEE DUNS NO
[REDACTED]
3 PROJECT TITLE BJA FY 2017 Edward Byrne Memorial Assistance Grant JAG (Parks)

4 AWARD NUMBER: 2017-DJ-BX-0001

5 PROJECT PERIOD: FROM BUDGET PERIOD: FROM

10/01/2016 TO 09/30/2018 10/01/2016 TO 09/30/2018

6 AWARD DATE 08/23/2017
8 SUPPLEMENT NUMBER 00

7 ACTION Initial

9 PREVIOUS AWARD AMOUNT 10 AMOUNT OF THIS AWARD

$ 0 $ 24,259

11 TOTAL AWARD

$ 24,259

12 SPECIAL CONDITIONS
THE ABOVE GRANT PROJECT IS APPROVED SUBJECT TO SUCH CONDITIONS OR LIMITATIONS AS ARE SET FORTH ON THE ATTACHED PAGE(S)

13 STATUTORY AUTHORITY FOR GRANT This project is supported under FY17(BJA - JAG State and JAG Local) Title I of Pub L No 90-351 (generally codified at 42 U S C 3711 - 3797ff-5), including subpart 1 of part E (codified at 42 U S C 3750 - 3758); see also 28 U S C 530C(a)
14 CATALOG OF DOMESTIC FEDERAL ASSISTANCE (CFDA Number) 16 738 - Edward Byrne Memorial Justice Assistance Grant Program
15 METHOD OF PAYMENT GPRS

AGENCY APPROVAL 16 TYPED NAME AND TITLE OF APPROVING OFFICIAL
Alan R Hanson Acting Assistant Attorney General

GRANTEE ACCEPTANCE 18 TYPED NAME AND TITLE OF AUTHORIZED GRANTEE OFFICIAL
Richard C David Mayor

17 SIGNATURE OF APPROVING OFFICIAL

19 SIGNATURE OF AUTHORIZED RECIPIENT OFFICIAL 19A DATE

AGENCY USE ONLY

20 ACCOUNTING CLASSIFICATION CODES

FISCAL FUND BUD

DIV

YEAR CODE ACT OFC REG SUB POMS AMOUNT

21 SDJUGT0338

X

B

DJ

80

00

00

24259

OJP FORM 4000/2 (REV 5-87) PREVIOUS EDITIONS ARE OBSOLETE OJP FORM 4000/2 (REV 4-88)

Case 3:17-cv-04701-WHO Document 42-1 Filed 11/22/17 Page 47 of 77

U.S. Department of Justice Office of Justice Programs
Bureau of Justice Assistance

AWARD CONTINUATION SHEET
Grant

PAGE 2 OF 20

PROJECT NUMBER 2017-DJ-BX-0001

AWARD DATE

08/23/2017

SPECIAL CONDITIONS
1. Requirements of the award; remedies for non-compliance or for materially false statements
The conditions of this award are material requirements of the award. Compliance with any certifications or assurances submitted by or on behalf of the recipient that relate to conduct during the period of performance also is a material requirement of this award.
Failure to comply with any one or more of these award requirements -- whether a condition set out in full below, a condition incorporated by reference below, or a certification or assurance related to conduct during the award period -may result in the Office of Justice Programs ("OJP") taking appropriate action with respect to the recipient and the award. Among other things, the OJP may withhold award funds, disallow costs, or suspend or terminate the award. The Department of Justice ("DOJ"), including OJP, also may take other legal action as appropriate.
Any materially false, fictitious, or fraudulent statement to the federal government related to this award (or concealment or omission of a material fact) may be the subject of criminal prosecution (including under 18 U.S.C. 1001 and/or 1621, and/or 42 U.S.C. 3795a), and also may lead to imposition of civil penalties and administrative remedies for false claims or otherwise (including under 31 U.S.C. 3729-3730 and 3801-3812).
Should any provision of a requirement of this award be held to be invalid or unenforceable by its terms, that provision shall first be applied with a limited construction so as to give it the maximum effect permitted by law. Should it be held, instead, that the provision is utterly invalid or -unenforceable, such provision shall be deemed severable from this award.
2. Applicability of Part 200 Uniform Requirements
The Uniform Administrative Requirements, Cost Principles, and Audit Requirements in 2 C.F.R. Part 200, as adopted and supplemented by DOJ in 2 C.F.R. Part 2800 (together, the "Part 200 Uniform Requirements") apply to this FY 2017 award from OJP.
The Part 200 Uniform Requirements were first adopted by DOJ on December 26, 2014. If this FY 2017 award supplements funds previously awarded by OJP under the same award number (e.g., funds awarded during or before December 2014), the Part 200 Uniform Requirements apply with respect to all funds under that award number (regardless of the award date, and regardless of whether derived from the initial award or a supplemental award) that are obligated on or after the acceptance date of this FY 2017 award.
For more information and resources on the Part 200 Uniform Requirements as they relate to OJP awards and subawards ("subgrants"), see the OJP website at https://ojp.gov/funding/Part200UniformRequirements htm.
In the event that an award-related question arises from documents or other materials prepared or distributed by OJP that may appear to conflict with, or differ in some way from, the provisions of the Part 200 Uniform Requirements, the recipient is to contact OJP promptly for clarification.
3. Compliance with DOJ Grants Financial Guide
The recipient agrees to comply with the DOJ Grants Financial Guide as posted on the OJP website (currently, the "2015 DOJ Grants Financial Guide" available at https://ojp.gov/financialguide/DOJ/index htm), including any updated version that may be posted during the period of performance.

OJP FORM 4000/2 (REV 4-88)

Case 3:17-cv-04701-WHO Document 42-1 Filed 11/22/17 Page 48 of 77

U.S. Department of Justice Office of Justice Programs
Bureau of Justice Assistance

AWARD CONTINUATION SHEET
Grant

PAGE 3 OF 20

PROJECT NUMBER 2017-DJ-BX-0001

AWARD DATE

08/23/2017

SPECIAL CONDITIONS
4. Required training for Point of Contact and all Financial Points of Contact
Both the Point of Contact (POC) and all Financial Points of Contact (FPOCs) for this award must have successfully completed an "OJP financial management and grant administration training" by 120 days after the date of the recipient's acceptance of the award. Successful completion of such a training on or after January 1, 2015, will satisfy this condition.
In the event that either the POC or an FPOC for this award changes during the period of performance, the new POC or FPOC must have successfully completed an "OJP financial management and grant administration training" by 120 calendar days after-- (1) the date of OJP's approval of the "Change Grantee Contact" GAN (in the case of a new POC), or (2) the date the POC enters information on the new FPOC in GMS (in the case of a new FPOC). Successful completion of such a training on or after January 1, 2015, will satisfy this condition.
A list of OJP trainings that OJP will consider "OJP financial management and grant administration training" for purposes of this condition is available at https://www.ojp.gov/training/fmts htm. All trainings that satisfy this condition include a session on grant fraud prevention and detection.
The recipient should anticipate that OJP will immediately withhold ("freeze") award funds if the recipient fails to comply with this condition. The recipient's failure to comply also may lead OJP to impose additional appropriate conditions on this award.
5. Requirements related to "de minimis" indirect cost rate
A recipient that is eligible under the Part 200 Uniform Requirements and other applicable law to use the "de minimis" indirect cost rate described in 2 C.F.R. 200.414(f), and that elects to use the "de minimis" indirect cost rate, must advise OJP in writing of both its eligibility and its election, and must comply with all associated requirements in the Part 200 Uniform Requirements. The "de minimis" rate may be applied only to modified total direct costs (MTDC) as defined by the Part 200 Uniform Requirements.
6. Requirement to report potentially duplicative funding
If the recipient currently has other active awards of federal funds, or if the recipient receives any other award of federal funds during the period of performance for this award, the recipient promptly must determine whether funds from any of those other federal awards have been, are being, or are to be used (in whole or in part) for one or more of the identical cost items for which funds are provided under this award. If so, the recipient must promptly notify the DOJ awarding agency (OJP or OVW, as appropriate) in writing of the potential duplication, and, if so requested by the DOJ awarding agency, must seek a budget-modification or change-of-project-scope grant adjustment notice (GAN) to eliminate any inappropriate duplication of funding.

OJP FORM 4000/2 (REV 4-88)

Case 3:17-cv-04701-WHO Document 42-1 Filed 11/22/17 Page 49 of 77

U.S. Department of Justice Office of Justice Programs
Bureau of Justice Assistance

AWARD CONTINUATION SHEET
Grant

PAGE 4 OF 20

PROJECT NUMBER 2017-DJ-BX-0001

AWARD DATE

08/23/2017

SPECIAL CONDITIONS
7. Requirements related to System for Award Management and Universal Identifier Requirements
The recipient must comply with applicable requirements regarding the System for Award Management (SAM), currently accessible at https://www.sam.gov/. This includes applicable requirements regarding registration with SAM, as well as maintaining the currency of information in SAM.
The recipient also must comply with applicable restrictions on subawards ("subgrants") to first-tier subrecipients (first-tier "subgrantees"), including restrictions on subawards to entities that do not acquire and provide (to the recipient) the unique entity identifier required for SAM registration.
The details of the recipient's obligations related to SAM and to unique entity identifiers are posted on the OJP web site at https://ojp.gov/funding/Explore/SAM htm (Award condition: System for Award Management (SAM) and Universal Identifier Requirements), and are incorporated by reference here.
This condition does not apply to an award to an individual who received the award as a natural person (i.e., unrelated to any business or non-profit organization that he or she may own or operate in his or her name).
8. All subawards ("subgrants") must have specific federal authorization
The recipient, and any subrecipient ("subgrantee") at any tier, must comply with all applicable requirements for authorization of any subaward. This condition applies to agreements that -- for purposes of federal grants administrative requirements -- OJP considers a "subaward" (and therefore does not consider a procurement "contract").
The details of the requirement for authorization of any subaward are posted on the OJP web site at https://ojp.gov/funding/Explore/SubawardAuthorization htm (Award condition: All subawards ("subgrants") must have specific federal authorization), and are incorporated by reference here.
9. Specific post-award approval required to use a noncompetitive approach in any procurement contract that would exceed $150,000
The recipient, and any subrecipient ("subgrantee") at any tier, must comply with all applicable requirements to obtain specific advance approval to use a noncompetitive approach in any procurement contract that would exceed the Simplified Acquisition Threshold (currently, $150,000). This condition applies to agreements that -- for purposes of federal grants administrative requirements -- OJP considers a procurement "contract" (and therefore does not consider a subaward).
The details of the requirement for advance approval to use a noncompetitive approach in a procurement contract under an OJP award are posted on the OJP web site at https://ojp.gov/funding/Explore/NoncompetitiveProcurement htm (Award condition: Specific post-award approval required to use a noncompetitive approach in a procurement contract (if contract would exceed $150,000)), and are incorporated by reference here.

OJP FORM 4000/2 (REV 4-88)

Case 3:17-cv-04701-WHO Document 42-1 Filed 11/22/17 Page 50 of 77

U.S. Department of Justice Office of Justice Programs
Bureau of Justice Assistance

AWARD CONTINUATION SHEET
Grant

PAGE 5 OF 20

PROJECT NUMBER 2017-DJ-BX-0001

AWARD DATE

08/23/2017

SPECIAL CONDITIONS 10. Requirements pertaining to prohibited conduct related to trafficking in persons (including reporting requirements and
OJP authority to terminate award)
The recipient, and any subrecipient ("subgrantee") at any tier, must comply with all applicable requirements (including requirements to report allegations) pertaining to prohibited conduct related to the trafficking of persons, whether on the part of recipients, subrecipients ("subgrantees"), or individuals defined (for purposes of this condition) as "employees" of the recipient or of any subrecipient.
The details of the recipient's obligations related to prohibited conduct related to trafficking in persons are posted on the OJP web site at https://ojp.gov/funding/Explore/ProhibitedConduct-Trafficking htm (Award condition: Prohibited conduct by recipients and subrecipients related to trafficking in persons (including reporting requirements and OJP authority to terminate award)), and are incorporated by reference here.
11. Compliance with applicable rules regarding approval, planning, and reporting of conferences, meetings, trainings, and other events
The recipient, and any subrecipient ("subgrantee") at any tier, must comply with all applicable laws, regulations, policies, and official DOJ guidance (including specific cost limits, prior approval and reporting requirements, where applicable) governing the use of federal funds for expenses related to conferences (as that term is defined by DOJ), including the provision of food and/or beverages at such conferences, and costs of attendance at such conferences.
Information on the pertinent DOJ definition of conferences and the rules applicable to this award appears in the DOJ Grants Financial Guide (currently, as section 3.10 of "Postaward Requirements" in the "2015 DOJ Grants Financial Guide").
12. Requirement for data on performance and effectiveness under the award
The recipient must collect and maintain data that measure the performance and effectiveness of work under this award. The data must be provided to OJP in the manner (including within the timeframes) specified by OJP in the program solicitation or other applicable written guidance. Data collection supports compliance with the Government Performance and Results Act (GPRA) and the GPRA Modernization Act of 2010, and other applicable laws.
13. OJP Training Guiding Principles
Any training or training materials that the recipient -- or any subrecipient ("subgrantee") at any tier -- develops or delivers with OJP award funds must adhere to the OJP Training Guiding Principles for Grantees and Subgrantees, available at https://ojp.gov/funding/ojptrainingguidingprinciples htm.
14. Effect of failure to address audit issues
The recipient understands and agrees that the DOJ awarding agency (OJP or OVW, as appropriate) may withhold award funds, or may impose other related requirements, if (as determined by the DOJ awarding agency) the recipient does not satisfactorily and promptly address outstanding issues from audits required by the Part 200 Uniform Requirements (or by the terms of this award), or other outstanding issues that arise in connection with audits, investigations, or reviews of DOJ awards.
15. Potential imposition of additional requirements
The recipient agrees to comply with any additional requirements that may be imposed by the DOJ awarding agency (OJP or OVW, as appropriate) during the period of performance for this award, if the recipient is designated as "highrisk" for purposes of the DOJ high-risk grantee list.

OJP FORM 4000/2 (REV 4-88)

Case 3:17-cv-04701-WHO Document 42-1 Filed 11/22/17 Page 51 of 77

U.S. Department of Justice Office of Justice Programs
Bureau of Justice Assistance

AWARD CONTINUATION SHEET
Grant

PAGE 6 OF 20

PROJECT NUMBER 2017-DJ-BX-0001

AWARD DATE

08/23/2017

SPECIAL CONDITIONS
16. Compliance with DOJ regulations pertaining to civil rights and nondiscrimination - 28 C.F.R. Part 42
The recipient, and any subrecipient ("subgrantee") at any tier, must comply with all applicable requirements of 28 C.F.R. Part 42, specifically including any applicable requirements in Subpart E of 28 C.F.R. Part 42 that relate to an equal employment opportunity program.
17. Compliance with DOJ regulations pertaining to civil rights and nondiscrimination - 28 C.F.R. Part 54
The recipient, and any subrecipient ("subgrantee") at any tier, must comply with all applicable requirements of 28 C.F.R. Part 54, which relates to nondiscrimination on the basis of sex in certain "education programs."
18. Compliance with DOJ regulations pertaining to civil rights and nondiscrimination - 28 C.F.R. Part 38
The recipient, and any subrecipient ("subgrantee") at any tier, must comply with all applicable requirements of 28 C.F.R. Part 38, specifically including any applicable requirements regarding written notice to program beneficiaries and prospective program beneficiaries. Part 38 of 28 C.F.R., a DOJ regulation, was amended effective May 4, 2016.
Among other things, 28 C.F.R. Part 38 includes rules that prohibit specific forms of discrimination on the basis of religion, a religious belief, a refusal to hold a religious belief, or refusal to attend or participate in a religious practice. Part 38 also sets out rules and requirements that pertain to recipient and subrecipient ("subgrantee") organizations that engage in or conduct explicitly religious activities, as well as rules and requirements that pertain to recipients and subrecipients that are faith-based or religious organizations.
The text of the regulation, now entitled "Partnerships with Faith-Based and Other Neighborhood Organizations," is available via the Electronic Code of Federal Regulations (currently accessible at https://www.ecfr.gov/cgibin/ECFR?page=browse), by browsing to Title 28-Judicial Administration, Chapter 1, Part 38, under e-CFR "current" data.
19. Restrictions on "lobbying"
In general, as a matter of federal law, federal funds awarded by OJP may not be used by the recipient, or any subrecipient ("subgrantee") at any tier, either directly or indirectly, to support or oppose the enactment, repeal, modification, or adoption of any law, regulation, or policy, at any level of government. See 18 U.S.C. 1913. (There may be exceptions if an applicable federal statute specifically authorizes certain activities that otherwise would be barred by law.)
Another federal law generally prohibits federal funds awarded by OJP from being used by the recipient, or any subrecipient at any tier, to pay any person to influence (or attempt to influence) a federal agency, a Member of Congress, or Congress (or an official or employee of any of them) with respect to the awarding of a federal grant or cooperative agreement, subgrant, contract, subcontract, or loan, or with respect to actions such as renewing, extending, or modifying any such award. See 31 U.S.C. 1352. Certain exceptions to this law apply, including an exception that applies to Indian tribes and tribal organizations.
Should any question arise as to whether a particular use of federal funds by a recipient (or subrecipient) would or might fall within the scope of these prohibitions, the recipient is to contact OJP for guidance, and may not proceed without the express prior written approval of OJP.

OJP FORM 4000/2 (REV 4-88)

Case 3:17-cv-04701-WHO Document 42-1 Filed 11/22/17 Page 52 of 77

U.S. Department of Justice Office of Justice Programs
Bureau of Justice Assistance

AWARD CONTINUATION SHEET
Grant

PAGE 7 OF 20

PROJECT NUMBER 2017-DJ-BX-0001

AWARD DATE

08/23/2017

SPECIAL CONDITIONS
20. Compliance with general appropriations-law restrictions on the use of federal funds (FY 2017)
The recipient, and any subrecipient ("subgrantee") at any tier, must comply with all applicable restrictions on the use of federal funds set out in federal appropriations statutes. Pertinent restrictions, including from various "general provisions" in the Consolidated Appropriations Act, 2017, are set out at https://ojp.gov/funding/Explore/FY17AppropriationsRestrictions htm, and are incorporated by reference here.
Should a question arise as to whether a particular use of federal funds by a recipient (or a subrecipient) would or might fall within the scope of an appropriations-law restriction, the recipient is to contact OJP for guidance, and may not proceed without the express prior written approval of OJP.
21. Reporting potential fraud, waste, and abuse, and similar misconduct
The recipient, and any subrecipients ("subgrantees") at any tier, must promptly refer to the DOJ Office of the Inspector General (OIG) any credible evidence that a principal, employee, agent, subrecipient, contractor, subcontractor, or other person has, in connection with funds under this award-- (1) submitted a claim that violates the False Claims Act; or (2) committed a criminal or civil violation of laws pertaining to fraud, conflict of interest, bribery, gratuity, or similar misconduct.
Potential fraud, waste, abuse, or misconduct involving or relating to funds under this award should be reported to the OIG by-- (1) mail directed to: Office of the Inspector General, U.S. Department of Justice, Investigations Division, 950 Pennsylvania Avenue, N.W. Room 4706, Washington, DC 20530; (2) e-mail to: oig hotline@usdoj.gov; and/or (3) the DOJ OIG hotline: (contact information in English and Spanish) at (800) 869-4499 (phone) or (202) 616-9881 (fax).
Additional information is available from the DOJ OIG website at https://www.usdoj.gov/oig.

OJP FORM 4000/2 (REV 4-88)

Case 3:17-cv-04701-WHO Document 42-1 Filed 11/22/17 Page 53 of 77

U.S. Department of Justice Office of Justice Programs
Bureau of Justice Assistance

AWARD CONTINUATION SHEET
Grant

PAGE 8 OF 20

PROJECT NUMBER 2017-DJ-BX-0001

AWARD DATE

08/23/2017

SPECIAL CONDITIONS
22. Restrictions and certifications regarding non-disclosure agreements and related matters
No recipient or subrecipient ("subgrantee") under this award, or entity that receives a procurement contract or subcontract with any funds under this award, may require any employee or contractor to sign an internal confidentiality agreement or statement that prohibits or otherwise restricts, or purports to prohibit or restrict, the reporting (in accordance with law) of waste, fraud, or abuse to an investigative or law enforcement representative of a federal department or agency authorized to receive such information.
The foregoing is not intended, and shall not be understood by the agency making this award, to contravene requirements applicable to Standard Form 312 (which relates to classified information), Form 4414 (which relates to sensitive compartmented information), or any other form issued by a federal department or agency governing the nondisclosure of classified information.
1. In accepting this award, the recipient--
a. represents that it neither requires nor has required internal confidentiality agreements or statements from employees or contractors that currently prohibit or otherwise currently restrict (or purport to prohibit or restrict) employees or contractors from reporting waste, fraud, or abuse as described above; and
b. certifies that, if it learns or is notified that it is or has been requiring its employees or contractors to execute agreements or statements that prohibit or otherwise restrict (or purport to prohibit or restrict), reporting of waste, fraud, or abuse as described above, it will immediately stop any further obligations of award funds, will provide prompt written notification to the federal agency making this award, and will resume (or permit resumption of) such obligations only if expressly authorized to do so by that agency.
2. If the recipient does or is authorized under this award to make subawards ("subgrants"), procurement contracts, or both--
a. it represents that--
(1) it has determined that no other entity that the recipient's application proposes may or will receive award funds (whether through a subaward ("subgrant"), procurement contract, or subcontract under a procurement contract) either requires or has required internal confidentiality agreements or statements from employees or contractors that currently prohibit or otherwise currently restrict (or purport to prohibit or restrict) employees or contractors from reporting waste, fraud, or abuse as described above; and
(2) it has made appropriate inquiry, or otherwise has an adequate factual basis, to support this representation; and
b. it certifies that, if it learns or is notified that any subrecipient, contractor, or subcontractor entity that receives funds under this award is or has been requiring its employees or contractors to execute agreements or statements that prohibit or otherwise restrict (or purport to prohibit or restrict), reporting of waste, fraud, or abuse as described above, it will immediately stop any further obligations of award funds to or by that entity, will provide prompt written notification to the federal agency making this award, and will resume (or permit resumption of) such obligations only if expressly authorized to do so by that agency.

OJP FORM 4000/2 (REV 4-88)

Case 3:17-cv-04701-WHO Document 42-1 Filed 11/22/17 Page 54 of 77

U.S. Department of Justice Office of Justice Programs
Bureau of Justice Assistance

AWARD CONTINUATION SHEET
Grant

PAGE 9 OF 20

PROJECT NUMBER 2017-DJ-BX-0001

AWARD DATE

08/23/2017

SPECIAL CONDITIONS
23. Compliance with 41 U.S.C. 4712 (including prohibitions on reprisal; notice to employees)
The recipient (and any subrecipient at any tier) must comply with, and is subject to, all applicable provisions of 41 U.S.C. 4712, including all applicable provisions that prohibit, under specified circumstances, discrimination against an employee as reprisal for the employee's disclosure of information related to gross mismanagement of a federal grant, a gross waste of federal funds, an abuse of authority relating to a federal grant, a substantial and specific danger to public health or safety, or a violation of law, rule, or regulation related to a federal grant.
The recipient also must inform its employees, in writing (and in the predominant native language of the workforce), of employee rights and remedies under 41 U.S.C. 4712.
Should a question arise as to the applicability of the provisions of 41 U.S.C. 4712 to this award, the recipient is to contact the DOJ awarding agency (OJP or OVW, as appropriate) for guidance.
24. Encouragement of policies to ban text messaging while driving
Pursuant to Executive Order 13513, "Federal Leadership on Reducing Text Messaging While Driving," 74 Fed. Reg. 51225 (October 1, 2009), DOJ encourages recipients and subrecipients ("subgrantees") to adopt and enforce policies banning employees from text messaging while driving any vehicle during the course of performing work funded by this award, and to establish workplace safety policies and conduct education, awareness, and other outreach to decrease crashes caused by distracted drivers.
25. Cooperating with OJP Monitoring
The recipient agrees to cooperate with OJP monitoring of this award pursuant to OJP's guidelines, protocols, and procedures, and to cooperate with OJP (including the grant manager for this award and the Office of Chief Financial Officer (OCFO)) requests related to such monitoring, including requests related to desk reviews and/or site visits. The recipient agrees to provide to OJP all documentation necessary for OJP to complete its monitoring tasks, including documentation related to any subawards made under this award. Further, the recipient agrees to abide by reasonable deadlines set by OJP for providing the requested documents. Failure to cooperate with OJP's monitoring activities may result in actions that affect the recipient's DOJ awards, including, but not limited to: withholdings and/or other restrictions on the recipient's access to award funds; referral to the DOJ OIG for audit review; designation of the recipient as a DOJ High Risk grantee; or termination of an award(s).
26. FFATA reporting: Subawards and executive compensation
The recipient must comply with applicable requirements to report first-tier subawards ("subgrants") of $25,000 or more and, in certain circumstances, to report the names and total compensation of the five most highly compensated executives of the recipient and first-tier subrecipients (first-tier "subgrantees") of award funds. The details of recipient obligations, which derive from the Federal Funding Accountability and Transparency Act of 2006 (FFATA), are posted on the OJP web site at https://ojp.gov/funding/Explore/FFATA htm (Award condition: Reporting Subawards and Executive Compensation), and are incorporated by reference here.
This condition, including its reporting requirement, does not apply to-- (1) an award of less than $25,000, or (2) an award made to an individual who received the award as a natural person (i.e., unrelated to any business or non-profit organization that he or she may own or operate in his or her name).

OJP FORM 4000/2 (REV 4-88)

Case 3:17-cv-04701-WHO Document 42-1 Filed 11/22/17 Page 55 of 77

U.S. Department of Justice Office of Justice Programs
Bureau of Justice Assistance

AWARD CONTINUATION SHEET
Grant

PAGE 10 OF 20

PROJECT NUMBER 2017-DJ-BX-0001

AWARD DATE

08/23/2017

27. Use of program income

SPECIAL CONDITIONS

Program income (as defined in the Part 200 Uniform Requirements) must be used in accordance with the provisions of the Part 200 Uniform Requirements. Program income earnings and expenditures both must be reported on the quarterly Federal Financial Report, SF 425.

28. Justice Information Sharing
In order to promote information sharing and enable interoperability among disparate systems across the justice and public safety community, the recipient (and any subrecipient at any tier) must comply with DOJ's Global Justice Information Sharing Initiative (DOJ's Global) guidelines and recommendations for this particular award. The recipient shall conform to the Global Standards Package (GSP) and all constituent elements, where applicable, as described at: https://it.ojp.gov/gsp_grantcondition. The recipient shall document planned approaches to information sharing and describe compliance to the GSP and appropriate privacy policy that protects shared information, or provide detailed justification for why an alternative approach is recommended.

29. Avoidance of duplication of networks
To avoid duplicating existing networks or IT systems in any initiatives funded by BJA for law enforcement information sharing systems which involve interstate connectivity between jurisdictions, such systems shall employ, to the extent possible, existing networks as the communication backbone to achieve interstate connectivity, unless the recipient can demonstrate to the satisfaction of BJA that this requirement would not be cost effective or would impair the functionality of an existing or proposed IT system.

30. Compliance with 28 C.F.R. Part 23
With respect to any information technology system funded or supported by funds under this award, the recipient (and any subrecipient at any tier) must comply with 28 C.F.R. Part 23, Criminal Intelligence Systems Operating Policies, if OJP determines this regulation to be applicable. Should OJP determine 28 C.F.R. Part 23 to be applicable, OJP may, at its discretion, perform audits of the system, as per the regulation. Should any violation of 28 C.F.R. Part 23 occur, the recipient may be fined as per 42 U.S.C. 3789g(c)-(d). The recipient may not satisfy such a fine with federal funds.

31. Protection of human research subjects
The recipient (and any subrecipient at any tier) must comply with the requirements of 28 C.F.R. Part 46 and all OJP policies and procedures regarding the protection of human research subjects, including obtainment of Institutional Review Board approval, if appropriate, and subject informed consent.

32. Confidentiality of data
The recipient (and any subrecipient at any tier) must comply with all confidentiality requirements of 42 U.S.C. 3789g and 28 C.F.R. Part 22 that are applicable to collection, use, and revelation of data or information. The recipient further agrees, as a condition of award approval, to submit a Privacy Certificate that is in accord with requirements of 28 C.F.R. Part 22 and, in particular, 28 C.F.R. 22.23.

OJP FORM 4000/2 (REV 4-88)

Case 3:17-cv-04701-WHO Document 42-1 Filed 11/22/17 Page 56 of 77

U.S. Department of Justice Office of Justice Programs
Bureau of Justice Assistance

AWARD CONTINUATION SHEET
Grant

PAGE 11 OF 20

PROJECT NUMBER 2017-DJ-BX-0001

AWARD DATE

08/23/2017

SPECIAL CONDITIONS 33. Verification and updating of recipient contact information
The recipient must verify its Point of Contact(POC), Financial Point of Contact (FPOC), and Authorized Representative contact information in GMS, including telephone number and e-mail address. If any information is incorrect or has changed, a Grant Adjustment Notice (GAN) must be submitted via the Grants Management System (GMS) to document changes.
34. Law enforcement task forces - required training
Within 120 days of award acceptance, each current member of a law enforcement task force funded with award funds who is a task force commander, agency executive, task force officer, or other task force member of equivalent rank, must complete required online (internet-based) task force training. Additionally, all future task force members must complete this training once during the period of performance for this award, or once every four years if multiple OJP awards include this requirement.
The required training is available free of charge online through the BJA-funded Center for Task Force Integrity and Leadership (www.ctfli.org). The training addresses task force effectiveness, as well as other key issues including privacy and civil liberties/rights, task force performance measurement, personnel selection, and task force oversight and accountability. If award funds are used to support a task force, the recipient must compile and maintain a task force personnel roster, along with course completion certificates.
Additional information regarding the training is available through BJA's web site and the Center for Task Force Integrity and Leadership (www.ctfli.org).
35. Required attendance at BJA-sponsored events
The recipient (and its subrecipients at any tier) must participate in BJA-sponsored training events, technical assistance events, or conferences held by BJA or its designees, upon BJA's request.
36. Justification of consultant rate
Approval of this award does not indicate approval of any consultant rate in excess of $650 per day. A detailed justification must be submitted to and approved by the OJP program office prior to obligation or expenditure of such funds.

OJP FORM 4000/2 (REV 4-88)

Case 3:17-cv-04701-WHO Document 42-1 Filed 11/22/17 Page 57 of 77

U.S. Department of Justice Office of Justice Programs
Bureau of Justice Assistance

AWARD CONTINUATION SHEET
Grant

PAGE 12 OF 20

PROJECT NUMBER 2017-DJ-BX-0001

AWARD DATE

08/23/2017

SPECIAL CONDITIONS
37. Compliance with National Environmental Policy Act and related statutes
Upon request, the recipient (and any subrecipient at any tier) must assist BJA in complying with the National Environmental Policy Act (NEPA), the National Historic Preservation Act, and other related federal environmental impact analyses requirements in the use of these award funds, either directly by the recipient or by a subrecipient. Accordingly, the recipient agrees to first determine if any of the following activities will be funded by the grant, prior to obligating funds for any of these purposes. If it is determined that any of the following activities will be funded by the award, the recipient agrees to contact BJA.
The recipient understands that this condition applies to new activities as set out below, whether or not they are being specifically funded with these award funds. That is, as long as the activity is being conducted by the recipient, a subrecipient, or any third party, and the activity needs to be undertaken in order to use these award funds, this condition must first be met. The activities covered by this condition are:
a. New construction;
b. Minor renovation or remodeling of a property located in an environmentally or historically sensitive area, including properties located within a 100-year flood plain, a wetland, or habitat for endangered species, or a property listed on or eligible for listing on the National Register of Historic Places;
c. A renovation, lease, or any proposed use of a building or facility that will either (a) result in a change in its basic prior use or (b) significantly change its size;
d. Implementation of a new program involving the use of chemicals other than chemicals that are (a) purchased as an incidental component of a funded activity and (b) traditionally used, for example, in office, household, recreational, or education environments; and
e. Implementation of a program relating to clandestine methamphetamine laboratory operations, including the identification, seizure, or closure of clandestine methamphetamine laboratories.
The recipient understands and agrees that complying with NEPA may require the preparation of an Environmental Assessment and/or an Environmental Impact Statement, as directed by BJA. The recipient further understands and agrees to the requirements for implementation of a Mitigation Plan, as detailed at https://bja.gov/Funding/nepa html, for programs relating to methamphetamine laboratory operations.
Application of This Condition to Recipient's Existing Programs or Activities: For any of the recipient's or its subrecipients' existing programs or activities that will be funded by these award funds, the recipient, upon specific request from BJA, agrees to cooperate with BJA in any preparation by BJA of a national or program environmental assessment of that funded program or activity.
38. Establishment of trust fund
If award funds are being drawn down in advance, the recipient (or a subrecipient, with respect to a subaward) is required to establish a trust fund account. (The trust fund may or may not be an interest-bearing account.) The fund, including any interest, may not be used to pay debts or expenses incurred by other activities beyond the scope of the Edward Byrne Memorial Justice Assistance Grant Program (JAG). The recipient also agrees to obligate the award funds in the trust fund (including any interest earned) during the period of performance for the award and expend within 90 days thereafter. Any unobligated or unexpended funds, including interest earned, must be returned to OJP at the time of closeout.

OJP FORM 4000/2 (REV 4-88)

Case 3:17-cv-04701-WHO Document 42-1 Filed 11/22/17 Page 58 of 77

U.S. Department of Justice Office of Justice Programs
Bureau of Justice Assistance

AWARD CONTINUATION SHEET
Grant

PAGE 13 OF 20

PROJECT NUMBER 2017-DJ-BX-0001

AWARD DATE

08/23/2017

SPECIAL CONDITIONS 39. Prohibition on use of award funds for match under BVP program
JAG funds may be used to purchase vests for an agency, but they may not be used as the 50% match for purposes of the DOJ Bulletproof Vest Partnership (BVP) program.
40. Certification of body armor "mandatory wear" policies
The recipient agrees to submit a signed certification that all law enforcement agencies receiving body armor purchased with funds from this award have a written "mandatory wear" policy in effect. The recipient must keep signed certifications on file for any subrecipients planning to utilize funds from this award for ballistic-resistant and stabresistant body armor purchases. This policy must be in place for at least all uniformed officers before any funds from this award may be used by an agency for body armor. There are no requirements regarding the nature of the policy other than it be a mandatory wear policy for all uniformed officers while on duty.
41. Body armor - compliance with NIJ standards
Ballistic-resistant and stab-resistant body armor purchased with JAG award funds may be purchased at any threat level, make or model, from any distributor or manufacturer, as long as the body armor has been tested and found to comply with applicable National Institute of Justice ballistic or stab standards and is listed on the NIJ Compliant Body Armor Model List (https://nij.gov/). In addition, ballistic-resistant and stab-resistant body armor purchased must be American-made. The latest NIJ standard information can be found here: https://nij.gov/topics/technology/bodyarmor/pages/safety-initiative.aspx.
42. Required monitoring of subawards
The recipient must monitor subawards under this JAG award in accordance with all applicable statutes, regulations, award conditions, and the DOJ Grants Financial Guide, and must include the applicable conditions of this award in any subaward. Among other things, the recipient is responsible for oversight of subrecipient spending and monitoring of specific outcomes and benefits attributable to use of award funds by subrecipients. The recipient agrees to submit, upon request, documentation of its policies and procedures for monitoring of subawards under this award.
43. Reporting requirements
The recipient must submit quarterly Federal Financial Reports (SF-425) and semi-annual performance reports through OJP's GMS (https://grants.ojp.usdoj.gov). Consistent with the Department's responsibilities under the Government Performance and Results Act (GPRA) and the GPRA Modernization Act of 2010, the recipient must provide data that measure the results of its work. The recipient must submit quarterly performance metrics reports through BJA's Performance Measurement Tool (PMT) website (www.bjaperformancetools.org). For more detailed information on reporting and other JAG requirements, refer to the JAG reporting requirements webpage. Failure to submit required JAG reports by established deadlines may result in the freezing of grant funds and future High Risk designation.
44. Required data on law enforcement agency training
Any law enforcement agency receiving direct or sub-awarded funding from this JAG award must submit quarterly accountability metrics data related to training that officers have received on the use of force, racial and ethnic bias, deescalation of conflict, and constructive engagement with the public.

OJP FORM 4000/2 (REV 4-88)

Case 3:17-cv-04701-WHO Document 42-1 Filed 11/22/17 Page 59 of 77

U.S. Department of Justice Office of Justice Programs
Bureau of Justice Assistance

AWARD CONTINUATION SHEET
Grant

PAGE 14 OF 20

PROJECT NUMBER 2017-DJ-BX-0001

AWARD DATE

08/23/2017

45. Prohibited Expenditures List

SPECIAL CONDITIONS

Award funds may not be used for items that are listed on the Prohibited Expenditure List at the time of purchase or acquisition, including as the list may be amended from time to time. The Prohibited Expenditure List may be accessed here: https://www.bja.gov/funding/JAGControlledPurchaseList.pdf

46. Controlled expenditures - prior written approval required
Award funds may not be used for items that are listed on the Controlled Expenditure List at the time of purchase or acquisition, including as the list may be amended from time to time, without explicit written prior approval from BJA. The Controlled Expenditure List, and instructions on how to request approval for purchase or acquisitions are set out at https://www.bja.gov/funding/JAGControlledPurchaseList.pdf

47. Controlled expenditures - incident reporting
If an agency uses award funds to purchase or acquire any item on the Controlled Expenditure List at the time of purchase or acquisition, including as the list may be amended from time to time, the agency must collect and retain (for at least 3 years) certain information about the use of-- (1) any federally-acquired Controlled Equipment in the agency's inventory, and (2) any other controlled equipment in the same category as the federally-acquired controlled equipment in the agency's inventory, regardless of source; and the agency must make that information available to BJA upon request. Details about what information must be collected and retained are set out at https://ojp.gov/docs/LEEquipment-WG-Final-Report.pdf.

48. Sale of items on Controlled Expenditure List
Notwithstanding the provision of the Part 200 Uniform Requirements set out at 2 C.F.R. 200.313, no equipment listed on the Controlled Expenditure List that is purchased with award funds may be transferred or sold to a third party, except as described below:
a. Agencies may transfer or sell any controlled equipment, except riot helmets and riot shields, to a Law Enforcement Agency (LEA) after obtaining prior written approval from BJA. As a condition of that approval, the acquiring LEA will be required to submit information and certifications to BJA as if it were requesting approval to use award funds for the initial purchase of items on the Controlled Expenditure List.
b. Agencies may not transfer or sell any riot helmets or riot shields purchased under this award.
c. Agencies may not transfer or sell any Controlled Equipment purchased under this award to non-LEAs, with the exception of fixed wing aircraft, rotary wing aircraft, and command and control vehicles. Before any such transfer or sale is finalized, the agency must obtain prior written approval from BJA. All law enforcement-related and other sensitive or potentially dangerous components, and all law enforcement insignias and identifying markings must be removed prior to transfer or sale.
The recipient must notify BJA prior to the disposal of any items on the Controlled Expenditure List purchased with award funds, and must abide by any applicable laws (including regulations) in such disposal.

49. Prohibited or controlled expenditures - Effect of failure to comply
Failure to comply with an award condition related to prohibited or controlled expenditures may result in denial of any further approvals of controlled expenditures under this or other federal awards.

OJP FORM 4000/2 (REV 4-88)

Case 3:17-cv-04701-WHO Document 42-1 Filed 11/22/17 Page 60 of 77

U.S. Department of Justice Office of Justice Programs
Bureau of Justice Assistance

AWARD CONTINUATION SHEET
Grant

PAGE 15 OF 20

PROJECT NUMBER 2017-DJ-BX-0001

AWARD DATE

08/23/2017

SPECIAL CONDITIONS
50. Controlled expenditures - Standards
Consistent with recommendation 2.1 of Executive Order 13688, a law enforcement agency that acquires controlled equipment with award funds must adopt robust and specific written policies and protocols governing General Policing Standards and Specific Controlled Equipment Standards. General Policing Standards includes policies on (a) Community Policing; (b) Constitutional Policing; and (c) Community Input and Impact Considerations. Specific Controlled Equipment Standards includes policies specifically related to (a) Appropriate Use of Controlled Equipment; (b) Supervision of Use; (c) Effectiveness Evaluation; (d) Auditing and Accountability; and (e) Transparency and Notice Considerations. Upon OJP's request, the recipient must provide a copy of the General Policing Standards and Specific Controlled Equipment Standards, and any related policies and protocols.
51. Authorization to obligate (federal) award funds to reimburse certain project costs incurred on or after October 1, 2016
The recipient may obligate (federal) award funds only after the recipient makes a valid acceptance of the award. As of the first day of the period of performance for the award (October 1, 2016), however, the recipient may choose to incur project costs using non-federal funds, but any such project costs are incurred at the recipient's risk until, at a minimum-- (1) the recipient makes a valid acceptance of the award, and (2) all applicable withholding conditions are removed by OJP (via a Grant Adjustment Notice). (A withholding condition is a condition in the award document that precludes the recipient from obligating, expending, or drawing down all or a portion of the award funds until the condition is removed.)
Except to the extent (if any) that an award condition expressly precludes reimbursement of project costs incurred "atrisk," if and when the recipient makes a valid acceptance of this award and OJP removes each applicable withholding condition through a Grant Adjustment Notice, the recipient is authorized to obligate (federal) award funds to reimburse itself for project costs incurred "at-risk" earlier during the period of performance (such as project costs incurred prior to award acceptance or prior to removal of an applicable withholding condition), provided that those project costs otherwise are allowable costs under the award.
Nothing in this condition shall be understood to authorize the recipient (or any subrecipient at any tier) to use award funds to "supplant" State or local funds in violation of the recipient's certification (executed by the chief executive of the State or local government) that federal funds will be used to increase the amounts of such funds that would, in the absence of federal funds, be made available for law enforcement activities.
52. "Certification of Compliance with 8 U.S.C. 1373" required for valid award acceptance by a unit of local government
In order validly to accept this award, the applicant local government must submit the required "Certification of Compliance with 8 U.S.C. 1373" (executed by the chief legal officer of the local government). Unless that executed certification either-- (1) is submitted to OJP together with the fully-executed award document, or (2) is uploaded in OJP's GMS no later than the day the signed award document is submitted to OJP, any submission by a unit of local government that purports to accept the award is invalid.
If an initial award-acceptance submission by the recipient is invalid, once the unit of local government does submit the necessary certification regarding 8 U.S.C. 1373, it may submit a fully-executed award document executed by the unit of local government on or after the date of that certification.
For purposes of this condition, "local government" does not include any Indian tribes.

OJP FORM 4000/2 (REV 4-88)

Case 3:17-cv-04701-WHO Document 42-1 Filed 11/22/17 Page 61 of 77

U.S. Department of Justice Office of Justice Programs
Bureau of Justice Assistance

AWARD CONTINUATION SHEET
Grant

PAGE 16 OF 20

PROJECT NUMBER 2017-DJ-BX-0001

AWARD DATE

08/23/2017

SPECIAL CONDITIONS
53. Ongoing compliance with 8 U.S.C. 1373 is required
1. With respect to the "program or activity" funded in whole or part under this award (including any such "program or activity" of any subrecipient at any tier), throughout the period of performance for the award, no State or local government entity, -agency, or -official may prohibit or in any way restrict-- (1) any government entity or -official from sending or receiving information regarding citizenship or immigration status as described in 8 U.S.C. 1373(a); or (2) a government entity or -agency from sending, requesting or receiving, maintaining, or exchanging information regarding immigration status as described in 8 U.S.C. 1373(b). For purposes of this award, any prohibition (or restriction) that violates this condition is an "information-communication restriction."
2. Certifications from subrecipients. The recipient may not make a subaward to a State or local government or a "public" institution of higher education, unless it first obtains a certification of compliance with 8 U.S.C. 1373, properly executed by the chief legal officer of the jurisdiction or institution that would receive the subaward, using the appropriate form available at https://ojp.gov/funding/Explore/SampleCertifications-8USC1373.htm. Similarly, the recipient must require that no subrecipient (at any tier) may make a further subaward to a State or local government or a "public" institution of higher education, unless it first obtains a certification of compliance with 8 U.S.C. 1373, properly executed by the chief legal officer of the jurisdiction or institution that would receive the further subaward, using the appropriate OJP form.
3. The recipient's monitoring responsibilities include monitoring of subrecipient compliance with the requirements of this condition.
4. Allowable costs. Compliance with these requirements is an authorized and priority purpose of this award. To the extent that such costs are not reimbursed under any other federal program, award funds may be obligated (including for authorized reimbursements) for the reasonable, necessary, and allocable costs (if any) that the recipient, or any subrecipient at any tier that is a State or local government or a "public" institution of higher education, incurs to implement this condition.
5. Rules of Construction
A. For purposes of this condition:
(1) "State" and "local government" include any agency or other entity thereof, but not any institution of higher education or any Indian tribe.
(2) A "public" institution of higher education is one that is owned, controlled, or directly funded by a State or local government.
(3) "Program or activity" means what it means under title VI of the Civil Rights Act of 1964 (see 42 U.S.C. 2000d-4a).
(4) "Immigration status" means what it means for purposes of 8 U.S.C. 1373 (Illegal Immigration Reform and Immigrant Responsibility Act of 1996); and terms that are defined in 8 U.S.C. 1101 (Immigration and Nationality Act) mean what they mean under that section 1101, except that the term "State" also shall include American Samoa (cf. 42 U.S.C. 901(a)(2)).
(5) Pursuant to the provisions set out at (or referenced in) 8 U.S.C. 1551 note ("Abolition … and Transfer of Functions"), references to the "Immigration and Naturalization Service" in 8 U.S.C. 1373 are to be read as references to particular components of the Department of Homeland Security (DHS).
B. Nothing in this condition shall be understood to authorize or require any recipient, any subrecipient at any tier, any State or local government, any "public" institution of higher education, or any other entity (or individual) to violate any federal law, including any applicable civil rights or nondiscrimination law.

OJP FORM 4000/2 (REV 4-88)

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U.S. Department of Justice Office of Justice Programs
Bureau of Justice Assistance

AWARD CONTINUATION SHEET
Grant

PAGE 17 OF 20

PROJECT NUMBER 2017-DJ-BX-0001

AWARD DATE

08/23/2017

SPECIAL CONDITIONS
IMPORTANT NOTE: Any questions about the meaning or scope of this condition should be directed to OJP, before award acceptance.
54. Authority to obligate award funds contingent on compliance with 8 U.S.C. 1373; unallowable costs; obligation to notify
1. If the recipient is a State or local government--
A. The recipient may not obligate award funds if, at the time of the obligation, the "program or activity" of the recipient (or of any subrecipient at any tier that is a either a State or unit of local government or a "public" institution of higher education) that is funded in whole or in part with award funds is subject to any "information-communication restriction."
B. In addition, with respect to any project costs it incurs "at risk," the recipient may not obligate award funds to reimburse itself if -- at the time it incurs such costs -- the "program or activity" of the recipient (or of any subrecipient at any tier that is a either a State or unit of local government or a "public" institution of higher education) that would be reimbursed in whole or in part with award funds was subject to any "information-communication restriction."
C. Any drawdown of award funds by the recipient shall be considered, for all purposes, to be a material representation by the recipient to OJP that, as of the date the recipient requests the drawdown, the recipient and all subrecipients (regardless of tier) are in compliance with 8 U.S.C. 1373.
D. The recipient must promptly notify OJP (in writing) if the recipient, from its requisite monitoring of compliance with award conditions or otherwise, has credible evidence that indicates that the funded "program or activity" of the recipient, or of any subrecipient at any tier that is either a State or a local government or a "public" institution of higher education, may be subject to any "information-communication restriction." In addition, any subaward (at any tier) to a subrecipient that is either a State or a local government or a "public" institution of higher education must require prompt notification to the entity that made the subaward, should the subrecipient such credible evidence regarding an "information-communication restriction."
2. Any subaward (at any tier) to a subrecipient that is either a State or a local government or a "public" institution of higher education must provide that the subrecipient may not obligate award funds if, at the time of the obligation, the "program or activity" of the subrecipient (or of any further such subrecipient at any tier) that is funded in whole or in part with award funds is subject to any "information-communication restriction."
3. Absent an express written determination by DOJ to the contrary, based upon a finding by DOJ of compelling circumstances (e.g., a small amount of award funds obligated by the recipient at the time of a subrecipient's minor and transitory non-compliance, which was unknown to the recipient despite diligent monitoring), any obligations of award funds that, under this condition, may not be made shall be unallowable costs for purposes of this award. In making any such determination, DOJ will give great weight to evidence submitted by the recipient that demonstrates diligent monitoring of subrecipient compliance with the requirements set out in the award condition entitled "Ongoing compliance with 8 U.S.C. 1373 is required."
4. Rules of Construction
A. For purposes of this condition "information-communication restriction" has the meaning set out in the award condition entitled "Ongoing compliance with 8 U.S.C. 1373 is required."
B. Both the "Rules of Construction" and the "Important Note" set out in the award condition entitled "Ongoing compliance with 8 U.S.C. 1373 is required" are incorporated by reference as though set forth here in full.

OJP FORM 4000/2 (REV 4-88)

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U.S. Department of Justice Office of Justice Programs
Bureau of Justice Assistance

AWARD CONTINUATION SHEET
Grant

PAGE 18 OF 20

PROJECT NUMBER 2017-DJ-BX-0001

AWARD DATE

08/23/2017

SPECIAL CONDITIONS 55. Required State-level rules or practices related to aliens; allowable costs
The following provisions apply to the recipient of this award, if the recipient is a State government, and also apply to any State-government subrecipient at any tier (whether or not the recipient is a State government).
1. Requirements
With respect to the "program or activity" that is funded (in whole or in part) by this award, as of the date the recipient accepts this award, and throughout the remainder of the period of performance for the award--
A. A State statute, or a State rule, -regulation, -policy, or -practice, must be in place that is designed to ensure that agents of the United States acting under color of federal law in fact are given to access any State (or State-contracted) correctional facility for the purpose of permitting such agents to meet with individuals who are (or are believed by such agents to be) aliens and to inquire as to such individuals' right to be or remain in the United States.
B. A State statute, or a State rule, -regulation, -policy, or -practice, must be in place that is designed to ensure that, when a State (or State-contracted) correctional facility receives from DHS a formal written request authorized by the Immigration and Nationality Act that seeks advance notice of the scheduled release date and time for a particular alien in such facility, then such facility will honor such request and -- as early as practicable (see para. 4.B. of this condition) -- provide the requested notice to DHS.
2. Monitoring
The recipient's monitoring responsibilities include monitoring of subrecipient compliance with the requirements of this condition.
3. Allowable costs
Compliance with these requirements is an authorized and priority purpose of this award. To the extent that such costs are not reimbursed under any other federal program, award funds may be obligated (including for authorized reimbursements) for the reasonable, necessary, and allocable costs (if any) of-- (1) developing and putting into place statutes, rules, regulations, policies, and practices to satisfy this condition, and (2) permitting access as described in para. 1.A. above, and (3) honoring any request from DHS that is encompassed by para. 1.B. above.
4. Rules of construction
A. For purposes of this condition--
(1) the term "alien" means what it means under section 101 of the Immigration and Nationality Act (see 8 U.S.C. 1101(a)(3)).
(2) the term "correctional facility" means what it means under the Title I of the Omnibus Crime Control and Safe Streets Act of 1968 (see 42 U.S.C. 3791(a)(7)).
B. Nothing in this condition shall be understood to authorize or require any recipient, any subrecipient at any tier, any State or local government, or any other entity or individual to maintain (or detain) any individual in custody beyond the date and time the individual would have been released in the absence of this condition.
Current DHS practice is ordinarily to request advance notice of scheduled release "as early as practicable (at least 48 hours, if possible)." (See DHS Form I-247A (3/17)). In the event that (e.g., in light of the date DHS made such request) the scheduled release date and time for an alien are such as not to permit the advance notice that DHS has requested, it shall not be a violation of this condition to provide only as much advance notice as practicable.

OJP FORM 4000/2 (REV 4-88)

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U.S. Department of Justice Office of Justice Programs
Bureau of Justice Assistance

AWARD CONTINUATION SHEET
Grant

PAGE 19 OF 20

PROJECT NUMBER 2017-DJ-BX-0001

AWARD DATE

08/23/2017

SPECIAL CONDITIONS NOTE: Current DHS practice is to use one form (DHS Form I-247A (3/17)) for two distinct purposes -- to request advance notice of scheduled release, and to request that an individual be detained for up to 48 hours AFTER the scheduled release. This condition imposes NO requirements as to such DHS requests for detention.
C. Both the "Rules of Construction" and the "Important Note" set out in the award condition entitled "Ongoing compliance with 8 U.S.C. 1373 is required" are incorporated by reference as though set forth here in full.
56. Required local-government-level rules or practices related to aliens; allowable costs
The following provisions apply to the recipient of this award, if the recipient is a unit of local government, and also apply to any local-government subrecipient of this award at any tier (whether or not the recipient itself is a unit of local government).
1. Requirements
With respect to the "program or activity" that is funded (in whole or in part) by this award, as of the date the recipient accepts this award, and throughout the remainder of the period of performance for the award--
A. A local ordinance, -rule, -regulation, -policy, or -practice (or an applicable State statute, -rule, -regulation, policy, or -practice) must be in place that is designed to ensure that agents of the United States acting under color of federal law in fact are given access a local-government (or local-government-contracted) correctional facility for the purpose of permitting such agents to meet with individuals who are (or are believed by such agents to be) aliens and to inquire as to such individuals' right to be or remain in the United States.
B. A local ordinance, -rule, -regulation, -policy, or -practice (or an applicable State statute, -rule, -regulation, policy, or -practice) must be in place that is designed to ensure that, when a local-government (or local-governmentcontracted) correctional facility receives from DHS a formal written request authorized by the Immigration and Nationality Act that seeks advance notice of the scheduled release date and time for a particular alien in such facility, then such facility will honor such request and -- as early as practicable (see "Rules of Construction" incorporated by para. 4.B. of this condition) -- provide the requested notice to DHS.
2. Monitoring
The recipient's monitoring responsibilities include monitoring of subrecipient compliance with the requirements of this condition.
3. Allowable costs
Compliance with these requirements is an authorized and priority purpose of this award. To the extent that such costs are not reimbursed under any other federal program, award funds may be obligated (including for authorized reimbursements) for the reasonable, necessary, and allocable costs (if any) of-- (1) developing and putting into place statutes, ordinances, rules, regulations, policies, and practices to satisfy this condition, (2) permitting access as described in para. 1.A. above, and (3) honoring any request from DHS that is encompassed by para. 1.B. above.
4. Rules of construction
A. The "Rules of Construction" and the "Important Note" set out in the award condition entitled "Ongoing compliance with 8 U.S.C. 1373 is required" are incorporated by reference as though set forth here in full.
B. The "Rules of Construction" set out in the award condition entitled "Required State-level rules or practices related to aliens; allowable costs" are incorporated by reference as though set forth here in full.

OJP FORM 4000/2 (REV 4-88)

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U.S. Department of Justice Office of Justice Programs
Bureau of Justice Assistance

AWARD CONTINUATION SHEET
Grant

PAGE 20 OF 20

PROJECT NUMBER 2017-DJ-BX-0001

AWARD DATE

08/23/2017

SPECIAL CONDITIONS 57. Use of funds for DNA testing; upload of DNA profiles
If award funds are used for DNA testing of evidentiary materials, any resulting eligible DNA profiles must be uploaded to the Combined DNA Index System ("CODIS," the DNA database operated by the FBI) by a government DNA laboratory with access to CODIS.
No profiles generated under this award may be entered or uploaded into any non-governmental DNA database without prior express written approval from BJA.
Award funds may not be used for the purchase of DNA equipment and supplies unless the resulting DNA profiles may be accepted for entry into CODIS.
58. Encouragement of submission of "success stories"
BJA strongly encourages the recipient to submit annual (or more frequent) JAG success stories. To submit a success story, sign in to a My BJA account at https://www.bja.gov/Login.aspx to access the Success Story Submission form. If the recipient does not yet have a My BJA account, please register at https://www.bja.gov/profile.aspx. Once registered, one of the available areas on the My BJA page will be "My Success Stories." Within this box, there is an option to add a Success Story. Once reviewed and approved by BJA, all success stories will appear on the BJA Success Story web page at https://www.bja.gov/SuccessStoryList.aspx.
59. Initial period of performance; requests for extension
The recipient understands that the initial period of performance for this award is two years. The recipient further understands that any requests for an extension of the period of performance for this award will be approved automatically for up to a total of two additional years, pursuant to 42 U.S.C. 3751(f) and in accordance with the program solicitation associated with this award.
Any request for an extension of the period of performance beyond a four-year award period will require approval, and the approval (if any) will be at the discretion of the Director of BJA.
60. Withholding of funds: Budget narrative
The recipient may not obligate, expend, or draw down any award funds until the recipient submits, and OJP has reviewed and accepts, the budget narrative for the award, and a Grant Adjustment Notice (GAN) has been issued to remove this condition.
61. Withholding of funds: Program narrative
The recipient may not obligate, expend, or draw down any award funds until the recipient submits, and OJP has reviews and accepts, the program narrative for this award, and a Grant Adjustment Notice (GAN) has been issued to remove this condition.
62. Withholding of funds: Memorandum of Understanding
The recipient may not obligate, expend, or draw down any award funds until OJP has reviewed and approved the Memorandum of Understanding (MOU), and a Grant Adjustment Notice (GAN) has been issued to remove this condition.

OJP FORM 4000/2 (REV 4-88)

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EXHIBIT D

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EXHIBIT E

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EXHIBIT F

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EXHIBIT G

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Case 3:17-cv-04701-WHO Document 42-2 Filed 11/22/17 Page 1 of 5
California ex rel. Xavier Becerra v. Jefferson B. Sessions III, et al., No. 3:17-cv-04701-WHO
Opposition to Plaintiff’s Amended Motion for Preliminary Injunction
Attachment 2 Declaration of Andrew A. Dorr Office of Community Oriented Policing Services
U.S. Department of Justice

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California ex rel. Xavier Becerra v. Jefferson B. Sessions III, et al., No. 3:17-cv-04701-WHO
Opposition to Plaintiff’s Amended Motion for Preliminary Injunction
Attachment 3 Request for Referendum
October 17, 2017

Case 3:17-cv-04701-WHO Document 42-3 Filed 11/22/17 Page 2 of 15
17-0040 


October 17, 2017
VIA PERSONAL DELIVERY
The Honorable Xavier Becerra Attorney General 1300 I Street, 17th Floor P.O. Box 944255 Sacramento, CA 95814

RECEIVED
OCT 17 2017
INITIATIVE COORDINATOR ATTORNEY GENERAL'S OFFICE

Attn: Initiative Coordinator

Re: Request for Title and Summary for Proposed Referendum

Dear Mr.. Becerra,

Pursuant to Article II, Section 10(d) of the California· Constitution, I hereby submit the attached proposed statewide referendum of all portions of Senate Bill 54 (2017 Regular Session of the California Legislature) to your office and request that you prepare a title and summary of the measure as provided by law. Included with this submission is the required proponent affidavit signed by the proponent of this measure pursuant to section 9608 of the California Elections Code. My address as a registered voter is attached to this letter, along with a check for $2,000.00.

All inquiries or correspondence relative to this referendum should be directed to:

Ben Bergquam 4974 N. Fresno Street Suite 614 Fresno, CA 93726 (559)618-1109

Thank you for your assistance.

arco ut errez, Proponent 3985 Bolinas Place Discovery Bay, CA 94505
Enclosure: Proposed Referendum Statute

Case 3:17-cv-04701-WHO Document 42-3 Filed 11/22/17 Page 3 of 15
REFERENDUMAGAINST AN ACTPASSEDBYTHELEGISLATURE 1 7 - 0 0 4 0 

NOTICE: CHAPTER 495, STATUTES OF 2017 (SB 54), IS BEING SUBMITTED FOR 
 APPROVAL OR REJECTION BY THE VOTERS IN ITS ENTIRETY
CHAPTER495
An act to amend Sections 7282 and 7282.5 of, and to add Chapter 17.25 (commencing with Section 7284) to Division 7 of Title 1 of, the Government Code, and to repeal Section 11369 of the Health and Safety Code, relating to law enforcement.
LEGISLATIVE COUNSEL'S DIGEST
SB 54, De Leon. Law enforcement: sharing data.
Existing law provides that when there is reason to believe that a person arrested for a violation of specified controlled substance provisions may not be a citizen ofthe United States, the arresting agency shall notify the appropriate agency ofthe United States having charge of deportation matters.
This bill would repeal those provisions.
Existing law provides that whenever an individual who is a victim of or witness to a hate crime, or who otherwise can give evidence in a hate crime investigation, is not charged with or convicted of committing any crime under state law, a peace officer may not detain the individual exclusively for any actual or suspected immigration violation or report or tum the individual over to federal immigration authorities.
This bill would, among other things and subject to exceptions, prohibit state and local law enforcement agencies, including school police and security departments, from using money or personnel to investigate, interrogate, detain, detect, or arrest persons for immigration enforcement purposes, as specified, and would, subject to exceptions, proscribe other activities or conduct in connection with immigration enforcement by law enforcement agencies. The bill would apply those provisions to the circumstances in which a law enforcement official has discretion to cooperate with immigration authorities. The bill would require, by October 1, 2018, the Attorney General, in consultation with the appropriate stakeholders, to publish model policies limiting assistance with immigration enforcement to the fullest extent possible for use by public schools, public libraries, health facilities operated by the state or a political subdivision ofthe state, and courthouses, among others. The bill would require, among others, all public schools, health facilities operated by the state or a political subdivision ofthe state, and courthouses to implement the model policy, or an equivalent policy. The bill would state that, among others, all other organizations and entities that provide services related to physical or mental health and wellness, education, or access to justice, including the University of California, are encouraged

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REFERENDUM AGAINST AN ACT PASSED BY THE LEGISLATURE 

to adopt the model policy. The bill would require that a law enforcement agency that chooses to participate in a joint law enforcement task force, as defined, submit a report annually pertaining to task force operations to the Department of Justice, as specified. The bill would require the Attorney General, by March 1, 2019, and annually thereafter, to report on the types and frequency ofjoint law enforcement task forces, and other information, as specified, and to post those reports on the Attorney General's Internet Web site. The bill would require law enforcement agencies to report to the department annually regarding transfers ofpersons to immigration authorities. The bill would require the Attorney General to publish guidance, audit criteria, and training recommendations regarding state and local law enforcement databases, for purposes of limiting the availability of information for immigration enforcement, as specified. The bill would require the Department of Corrections and Rehabilitation to provide a specified written consent form in advance of any interview between a person in department custody and the United States Immigration and Customs Enforcement regarding civil immigration violations. This bill would state findings and declarations ofthe Legislature relating to these provisions. By imposing additional duties on public schools and local law enforcement agencies, this bill would impose a state-mandated local program. The California Constitution requires the state to reimburse local agencies and school districts for certain costs mandated by the state. Statutory provisions establish procedures for making that reimbursement. This bill would provide that, ifthe Commissio'n on State Mandates determines that the bill contains costs mandated by the state, reimbursement for those costs shall be made pursuant to the statutory provisions noted above. Digest Key Vote: MAJORITY Appropriation: NO Fiscal Committee: YES Local Program: YES
The people ofthe State ofCalifornia do enact as follows:
SECTION 1. Section 7282 ofthe Government Code is amended to read:
7282. For purposes ofthis chapter, the following terms have the following meanings: (a) "Conviction" shall have the same meaning as subdivision (d) of Section 667 of the Penal Code. (b) "Eligible for release from custody" means that the individual may be released from custody because one ofthe following conditions has occurred: (1) All criminal charges against the individual have been dropped or dismissed.

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REFERENDUM AGAINST AN ACT PASSED BY THE LEGISLATURE 

(2) The individual has been acquitted of all criminal charges filed against him or her.
(3) The individual has served all the time required for his or her sentence.
(4) The individual has posted a bond.
(5) The individual is otherwise eligible for release under state or local law, or local policy.
(c) "Hold request," "notification request," and ''transfer request" have the same meanings as provided in Section 7283. Hold, notification, and transfer requests include requests issued by the United States Immigration and Customs Enforcement or the United States Customs and Border Protection as well as any other immigration authorities.
(d) "Law enforcement official" means any local agency or officer of a local agency authorized to enforce criminal statutes, regulations, or local ordinances or to operate jails or to maintain custody of individuals in jails, and any person or local agency authorized to operate juvenile detention facilities or to maintain custody of individuals in juvenile detention facilities.
(e) "Local agency" means any city, county, city and county, special district, or other political subdivision of the state.
(f) "Serious felony" means any of the offenses listed in subdivision (c) of Section 1192.7 ofthe Penal Code and any offense committed in another state which, if committed in California, would be punishable as a serious felony as defined by subdivision (c) of Section 1192.7 ofthe Penal Code.
(g) "Violent felony" means any of the offenses listed in subdivision (c) of Section 667.5 ofthe Penal Code and any offense committed in another state which, if committed in California, would be punishable as a violent felony as defined by subdivision (c) of Section 667.5 ofthe Penal Code.
SEC. 2. Section 7282.5 of the Government Code is amended to read:
7282.5. (a) A law enforcement official shall have discretion to cooperate with immigration authorities only if doing so would not violate any federal, state, or local law, or local policy, and where permitted by the California Values Act (Chapter 17.25 (commencing with Section 7284)). Additionally, the specific activities described in subparagraph (C) of paragraph (1) of subdivision (a) of, and in paragraph (4) of subdivision (a) of, Section 7284.6 shall only occur under the following circumstances:

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REFERENDUM AGAINST AN ACT PASSED BY THE LEGISLATURE 

(1) The individual has been convicted of a serious or violent felony identified in subdivision (c) of Section 1192.7 of, or subdivision (c) of Section 667.5 of, the Penal Code.
(2) The individual has been convicted of a felony punishable by imprisonment in the state prison.
(3) The individual has been convicted within the past five years of a misdemeanor for a crime that is punishable as either a misdemeanor or a felony for, or has been convicted within the last 15 years of a felony for, any of the following offenses:
(A) Assault, as specified in, but not limited to, Sections 217.1, 220,240, 241.1, 241.4, 241.7, 244, 244.5, 245, 245.2, 245.3, 245.5, 4500, and 4501 ofthe Penal Code.
(B) Battery, as specified in, but not limited to, Sections 242, 243.1, 243.3, 243.4, 243.6, 243.7, 243.9, 273.5, 347, 4501.1, and 4501.5 ofthe Penal Code.
(C) Use ofthreats, as specified in, but not limited to, Sections 71, 76, 139, 140, 422, 601, and 11418.5 of the Penal Code.
(D) Sexual abuse, sexual exploitation, or crimes endangering children, as specified in, but not limited to, Sections 266, 266a, 266b, 266c, 266d, 266f, 266g, 266h, 266i, 266j, 267,269,288,288.5, 311.1, 311.3, 311.4, 311.10, 311.11, and 647.6 ofthe Penal Code.
(E) Child abuse or endangerment, as specified in, but not limited to, Sections 270, 271, 271a, 273a, 273ab, 273d, 273.4, and 278 ofthe Penal Code.
(F) Burglary, robbery, theft, fraud, forgery, or embezzlement, as specified in, but not limited to, Sections 211,215,459, 463, 470,476,487,496, 503, 518, 530.5, 532, and 550 ofthe Penal Code.
(G) Driving under the influence of alcohol or drugs, but only for a conviction that is a felony.
(H) Obstruction ofjustice, as specified in, but not limited to, Sections 69, 95, 95.1, 136.1, and 148.10 ofthe Penal Code.
(D Bribery, as specified in, but not limited to, Sections 67, 67.5, 68, 74, 85, 86, 92, 93, 137, 138, and 165 ofthe Penal Code.
(J) Escape, as specified in, but not limited to, Sections 107, 109, 110, 4530, 4530.5, 4532, 4533, 4534, 4535, and 4536 ofthe Penal Code.
(K) Unlawful possession or use of a weapon, firearm, explosive device, or weapon of mass destruction, as specified in, but not limited to, Sections

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REFERENDUM AGAINST AN ACT PASSED BY THE LEGISLATURE 

171b, 171c, 171d, 246,246.3, 247,417,417.3, 417.6, 417.8, 4574, 11418, 11418.1, 12021.5, 12022, 12022.2, 12022.3, 12022.4, 12022.5, 12022.53, 12022.55, 18745, 18750, and 18755 of, and subdivisions (c) and (d) of Section 26100 of, the Penal Code.
(L) Possession of an unlawful deadly weapon, under the Deadly Weapons Recodification Act of2010 (Part 6 (commencing with Section 16000) of the Penal Code).
(M) An offense involving the felony possession, sale, distribution, manufacture, or trafficking of controlled substances.
(N) Vandalism with prior convictions, as specified in, but not limited to, Section 594.7 ofthe Penal Code.
(0) Gang-related offenses, as specified in, but not limited to, Sections 186.22, 186.26, and 186.28 ofthe Penal Code.
(P) An attempt, as defined in Section 664 of, or a conspiracy, as defined in Section 182 of, the Penal Code, to commit an offense specified in this section.
(Q) A crime resulting in death, or involving the personal infliction of great bodily injury, as specified in, but not limited to, subdivision (d) of Section 245.6 of, and Sections 187, 191.5, 192, 192.5, 12022.7, 12022.8, and 12022.9 of, the Penal Code.
(R) Possession or use of a firearm in the commission of an offense.
(S) An offense that would require the individual to register as a sex offender pursuant to Section 290, 290.002, or 290.006 ofthe Penal Code.
(T) False imprisonment, slavery, and human trafficking, as specified in, but not limited to, Sections 181,210.5, 236, 236.1, and 4503 ofthe Penal Code.
(U) Criminal profiteering and money laundering, as specified in, but not limited to, Sections 186.2, 186.9, and 186.10 of the Penal Code.
(V) Torture and mayhem, as specified in, but not limited to, Section 203 of the Penal Code.
(W) A crime threatening the public safety, as specified in, but not limited to, Sections 219, 219.1, 219.2, 247.5, 404,404.6, 405a, 451, and 11413 of the Penal Code.
(X) Elder and dependent adult abuse, as specified in, but not limited to, Section 368 ofthe Penal Code.

Case 3:17-cv-04701-WHO Document 42-3 Filed 11/22/17 Page 8 of 15
REFERENDUM AGAINST AN ACT PASSED BY THE LEGISLATURE 

(Y) A hate crime, as specified in, but not limited to, Section 422.55 ofthe Penal Code.
(Z) Stalking, as specified in, but not limited to, Section 646.9 ofthe Penal Code.
(AA) Soliciting the commission of a crime, as specified in, but not limited to, subdivision (c) of Section 286 of, and Sections 653j and 653.23 of, the Penal Code.
(AB) An offense committed while on bail or released on his or her own recognizance, as specified in, but not limited to, Section 12022.1 ofthe Penal Code.
(AC) Rape, sodomy, oral copulation, or sexual penetration, as specified in, but not limited to, paragraphs (2) and (6) of subdivision (a) of Section 261 of: paragraphs (1) and (4) of subdivision (a) of Section 262 of, Section 264.1 of, subdivisions (c) and (d) of Section 286 of, subdivisions (c) and (d) of Section 288a of, and subdivisions (a) and G) of Section 289 of, the Penal Code.
(AD) Kidnapping, as specified in, but not limited to, Sections 207, 209, and 209.5 of the Penal Code.
(AE) A violation of subdivision (c) of Section 20001 ofthe Vehicle Code.
(4) The individual is a current registrant on the California Sex and Arson Registry.
(5) The individual has been convicted of a federal crime that meets the definition of an aggravated felony as set forth in subparagraphs (A) to (P), inclusive, of paragraph (43) of subsection (a) of Section 101 of the federal Immigration and Nationality Act (8 U.S.C. Sec. 1101), or is identified by the United States Department of Homeland Security's Immigration and Customs Enforcement as the subject of an outstanding federal felony arrest warrant.
(6) In no case shall cooperation occur pursuant to this section for individuals arrested, detained, or convicted of misdemeanors that were previously felonies, or were previously crimes punishable as either misdemeanors or felonies, prior to passage of the Safe Neighborhoods and Schools Act of2014 as it amended the Penal Code.
(b) In cases in which the individual is arrested and taken before a magistrate on a charge involving a serious or violent felony, as identified in subdivision (c) of Section 1192.7 or subdivision (c) of Section 667.5 ofthe Penal Code, respectively, or a felony that is punishable by imprisonment in state prison, and the magistrate makes a finding of probable cause as to that charge pursuant to Section 872 of the Penal Code, a law enforcement official shall additionally have discretion to cooperate with immigration

Case 3:17-cv-04701-WHO Document 42-3 Filed 11/22/17 Page 9 of 15
REFERENDUM AGAINST AN ACT PASSED BY THE LEGISLATURE 

officials pursuant to subparagraph (C) of paragraph (1) of subdivision (a) of Section 7284.6.
SEC. 3. Chapter 17.25 (commencing with Section 7284) is added to Division 7 ofTitle 1 of the Government Code, to read: CHAPTER 17.25. Cooperation with Immigration Authorities
7284. This chapter shall be known, and may be cited, as the California Values Act.
7284.2. The Legislature finds and declares the following:
(a) Immigrants are valuable and essential members of the California community. Almost one in three Californians is foreign born and one in two children in California has at least one immigrant parent.
(b) A relationship of trust between California's immigrant community and state and local agencies is central to the public safety of the people of California.
(c) This trust is threatened when state and local agencies are entangled with federal immigration enforcement, with the result that immigrant community members fear approaching police when they are victims of, and witnesses to, crimes, seeking basic health services, or attending school, to the detriment of public safety and the well-being ofall Californians.
(d) Entangling state and local agencies with federal immigration enforcement programs diverts already limited resources and blurs the lines of accountability between local, state, and federal governments.
(e) State and local participation in federal immigration enforcement programs also raises constitutional concerns, including the prospect that California residents could be detained in violation ofthe Fourth Amendment to the United States Constitution, targeted on the basis of race or ethnicity in violation ofthe Equal Protection Clause, or denied access to education based on immigration status. See Sanchez Ochoa v. Campbell, et al. (E.D. Wash. 2017) 2017 WL 3476777; Trujillo Santoya v. United States, et al. (W.D. Tex. 2017) 2017 WL 2896021; Moreno v. Napolitano (N.D. Ill. 2016) 213 F. Supp. 3d 999; Morales v. Chadbourne (1st Cir. 2015) 793 F.3d 208; Miranda-Olivares v. Clackamas County (D. Or. 2014) 2014 WL 1414305; Galarza v. Szalczyk (3d Cir. 2014) 745 F.3d 634.
(f) This chapter seeks to ensure effective policing, to protect the safety, well-being, and constitutional rights ofthe people of California, and to direct the state's limited resources to matters of greatest concern to state and local governments.

Case 3:17-cv-04701-WHO Document 42-3 Filed 11/22/17 Page 10 of 15
REFERENDUM AGAINST AN ACT PASSED BY THE LEGISLATURE 

(g) It is the intent of the Legislature that this chapter shall not be construed as providing, expanding, or ratifying any legal authority for any state or local law enforcement agency to participate in immigration enforcement.
7284.4. For purposes ofthis chapter, the following terms have the following meanings:
(a) "California law enforcement agency" means a state or local law enforcement agency, including school police or security departments. "California law enforcement agency" does not include the Department of Corrections and Rehabilitation.
(b) "Civil immigration warrant" means any warrant for a violation of federal civil immigration law, and includes civil immigration warrants entered in the National Crime Information Center database.
(c) "Immigration authority" means any federal, state, or local officer, employee, or person performing immigration enforcement functions.
(d) "Health facility" includes health facilities as defined in Section 1250 of the Health and Safety Code, clinics as defined in Sections 1200 and 1200.1 of the Health and Safety Code, and substance abuse treatment facilities.
(e) "Hold request," "notification request," "transfer request," and "local law enforcement agency" have the same meaning as provided in Section 7283. Hold, notification, and transfer requests include requests issued by United States Immigration and Customs Enforcement or United States Customs and Border Protection as well as any other immigration authorities.
(f) "Immigration enforcement" includes any and all efforts to investigate, enforce, or assist in the investigation or enforcement of any federal civil immigration law, and also includes any and all efforts to investigate, enforce, or assist in the investigation or enforcement ofany federal criminal immigration law that penalizes a person's presence in, entry, or reentry to, or employment in, the United States.
(g) "Joint law enforcement task force" means at least one California law enforcement agency collaborating, engaging, or partnering with at least one federal law enforcement agency in investigating federal or state crimes.
(h) "Judicial probable cause determination" means a determination made by a federal judge or federal magistrate judge that probable cause exists that an individual has violated federal criminal immigration law and that authorizes a law enforcement officer to arrest and take into custody the individual.
(i) "Judicial warrant" means a warrant based on probable cause for a violation of federal criminal immigration law and issued by a federal judge or a federal magistrate judge that authorizes a law enforcement officer to arrest and take into custody the person who is the subject ofthe warrant.

Case 3:17-cv-04701-WHO Document 42-3 Filed 11/22/17 Page 11 of 15
REFERENDUM AGAINST AN ACT PASSED BY THE LEGISLATURE 

G) "Public schools" means all public elementary and secondary schools under the jurisdiction of local governing boards or a charter school board, the California State University, and the California Community Colleges.
(k) "School police and security departments" includes police and security departments of the California State University, the California Community Colleges, charter schools, county offices ofeducation, schools, and school districts.
7284.6. (a) California law enforcement agencies shall not:
(1) Use agency or department moneys or personnel to investigate, interrogate, detain, detect, or arrest persons for immigration enforcement purposes, including any ofthe following:
(A) Inquiring into an individual's immigration status.
(B) Detaining an individual on the basis of a hold request.
(C) Providing information regarding a person's release date or responding to requests for notification by providing release dates or other information unless that information is available to the public, or is in response to a notification request from immigration authorities in accordance with Section 7282.5. Responses are never required, but are permitted under this subdivision, provided that they do not violate any local law or policy.
(D) Providing personal information, as defined in Section 1798.3 ofthe Civil Code, about an individual, including, but not limited to, the individual's home address or work address unless that information is available to the public.
(E) Making or intentionally participating in arrests based on civil immigration warrants.
(F) Assisting immigration authorities in the activities described in Section 1357(a)(3) ofTitle 8 ofthe United States Code.
(G) Performing the functions of an immigration officer, whether pursuant to Section 1357(g) of Title 8 ofthe United States Code or any other law, regulation, or policy, whether formal or informal.
(2) Place peace officers under the supervision of federal agencies or employ peace officers deputized as special federal officers or special federal deputies for purposes of immigration enforcement. All peace officers remain subject to California law governing conduct ofpeace officers and the policies ofthe employing agency.

Case 3:17-cv-04701-WHO Document 42-3 Filed 11/22/17 Page 12 of 15
REFERENDUM AGAINST AN ACT PASSED BY THE LEGISLATURE 

(3) Use immigration authorities as interpreters for law enforcement matters relating to individuals in agency or department custody.
(4) Transfer an individual to immigration authorities unless authorized by a judicial warrant or judicial probable cause determination, or in accordance with Section 7282.5.
(5) Provide office space exclusively dedicated for immigration authorities for use within a city or county law enforcement facility.
(6) Contract with the federal government for use of California law enforcement agency facilities to house individuals as federal detainees, except pursuant to Chapter 17.8 (commencing with Section 7310).
(b) Notwithstanding the limitations in subdivision (a), this section does not prevent any California law enforcement agency from doing any ofthe following that does not violate any policy ofthe law enforcement agency or any local law or policy ofthe jurisdiction in which the agency is operating:
(1) Investigating, enforcing, or detaining upon reasonable suspicion of, or arresting for a violation of, Section I326(a) of Title 8 ofthe United States Code that may be subject to the enhancement specified in Section 1326(b)(2) of Title 8 of the United States Code and that is detected during an unrelated law enforcement activity. Transfers to immigration authorities are permitted under this subsection only in accordance with paragraph (4) of subdivision (a).
(2) Responding to a request from immigration authorities for information about a specific person's criminal history, including previous criminal arrests, convictions, or similar criminal history information accessed through the California Law Enforcement Telecommunications System (CLETS), where otherwise permitted by state law.
(3) Conducting enforcement or investigative duties associated with a joint law enforcement task force, including the sharing of confidential information with other law enforcement agencies for purposes of task force investigations, so long as the following conditions are met:
(A) The primary purpose of the joint law enforcement task force is not immigration enforcement, as defined in subdivision (f) of Section 7284.4.
(B) The enforcement or investigative duties are primarily related to a violation of state or federal law unrelated to immigration enforcement.
(C) Participation in the task force by a California law enforcement agency does not violate any local law or policy to which it is otherwise subject.
(4) Making inquiries into information necessary to certify an individual who has been identified as a potential crime or trafficking victim for a T or U Visa

Case 3:17-cv-04701-WHO Document 42-3 Filed 11/22/17 Page 13 of 15
REFERENDUM AGAINST AN ACT PASSED BY THE LEGISLATURE 

pursuant to Section 1101(a)(15)(T) or 1101(a)(l5)(U) ofTitle 8 ofthe United States Code or to comply with Section 922(d)(5) ofTitle 18 of the United States Code.
(5) Giving immigration authorities access to interview an individual in agency or department custody. All interview access shall comply with requirements ofthe TRUTH Act (Chapter 17.2 (commencing with Section 7283)).
(c) ( 1) If a California law enforcement agency chooses to participate in a joint law enforcement task force, for which a California law enforcement agency has agreed to dedicate personnel or resources on an ongoing basis, it shall submit a report annually to the Department of Justice, as specified by the Attorney General. The law enforcement agency shall report the following information, if known, for each task force ofwhich it is a member:
(A) The purpose ofthe task force.
(B) The federal, state, and local law enforcement agencies involved.
(C) The total number of arrests made during the reporting period.
(D) The number of people arrested for immigration enforcement purposes.
(2) All law enforcement agencies shall report annually to the Department of Justice, in a manner specified by the Attorney General, the number oftransfers pursuant to paragraph (4) of subdivision (a), and the offense that allowed for the transfer, pursuant to paragraph (4) of subdivision (a).
(3) All records described in this subdivision shall be public records for purposes ofthe California Public Records Act (Chapter 3.5 (commencing with Section 6250)), including the exemptions provided by that act and, as permitted under that act, personal identifying information may be redacted prior to public disclosure. To the extent that disclosure of a particular item of information would endanger the safety of a person involved in an investigation, or would endanger the successful completion ofthe investigation or a related investigation, that information shall not be disclosed.
(4) If more than one California law enforcement agency is participating in a joint task force that meets the reporting requirement pursuant to this section, the joint task force shall designate a local or state agency responsible for completing the reporting requirement.
(d) The Attorney General, by March 1, 2019, and annually thereafter, shall report on the total number of arrests made by joint law enforcement task forces, and the total number of arrests made for the purpose of immigration enforcement by all task force participants, including federal law enforcement agencies. To the extent that disclosure ofa particular item of information would endanger the safety of a person involved in an investigation, or would endanger the successful completion ofthe investigation or a related

Case 3:17-cv-04701-WHO Document 42-3 Filed 11/22/17 Page 14 of 15
REFERENDUM AGAINST AN ACT PASSED BY THE LEGISLATURE 

investigation, that information shall not be included in the Attorney General's report. The Attorney General shall post the reports required by this subdivision on the Attorney General's Internet Weh site.
(e) This section does not prohibit or restrict any government entity or official from sending to, or receiving from, federal immigration authorities, information regarding the citizenship or immigration status, lawful or unlawful, of an individual, or from requesting from federal immigration authorities immigration status information, lawful or unlawful, of any individual, or maintaining or exchanging that information with any other federal, state, or local government entity, pursuant to Sections 1373 and 1644 of Title 8 ofthe United States Code.
(f) Nothing in this section shall prohibit a California law enforcement agency from asserting its own jurisdiction over criminal law enforcement matters.
7284.8. (a) The Attorney General, by October 1, 2018, in consultation with the appropriate stakeholders, shall publish model policies limiting assistance with immigration enforcement to the fullest extent possible consistent with federal and state law at public schools, public libraries, health facilities operated by the state or a political subdivision of the state, courthouses, Division of Labor Standards Enforcement facilities, the Agricultural Labor Relations Board, the Division of Workers Compensation, and shelters, and ensuring that they remain safe and accessible to all California residents, regardless of immigration status. All public schools, health facilities operated by the state or a political subdivision ofthe state, and courthouses shall implement the model policy, or an equivalent policy. The Agricultural Labor Relations Board, the Division of Workers' Compensation, the Division of Labor Standards Enforcement, shelters, libraries, and all other organizations and entities that provide services related to physical or mental health and wellness, education, or access to justice, including the University of California, are encouraged to adopt the model policy.
(b) For any databases operated by state and local law enforcement agencies, including databases maintained for the agency by private vendors, the Attorney General shall, by October 1, 2018, in consultation with appropriate stakeholders, publish guidance, audit criteria, and training recommendations aimed at ensuring that those databases are governed in a manner that limits the availability of information therein to the fullest extent practicable and consistent with federal and state law, to anyone or any entity for the purpose of immigration enforcement. All state and local law enforcement agencies are encouraged to adopt necessary changes to database governance policies consistent with that guidance.
(c) Notwithstanding the rulemaking provisions of the Administrative Procedure Act (Chapter 3.5 (commencing with Section 11340) of Part 1 of Division 3 of Title 2), the Department of Justice may implement, interpret, or make specific this chapter without taking any regulatory action.

Case 3:17-cv-04701-WHO Document 42-3 Filed 11/22/17 Page 15 of 15
REFERENDUM AGAINST AN ACT PASSED BY THE LEGISLATURE
7284.10. (a) The Department of Corrections and Rehabilitation shall:
(1) In advance of any interview between the United States Immigration and Customs Enforcement (ICE) and an individual in department custody regarding civil immigration violations, provide the individual with a written consent form that explains the purpose ofthe interview, that the interview is voluntary, and that he or she may decline to be interviewed or may choose to be interviewed only with his or her attorney present. The written consent form shall be available in English, Spanish, Chinese, Tagalog, Vietnamese, and Korean.
(2) Upon receiving any ICE hold, notification, or transfer request, provide a copy ofthe request to the individual and inform him or her whether the department intends to comply with the request.
(b) The Department of Corrections and Rehabilitation shall not:
(1) Restrict access to any in-prison educational or rehabilitative programming, or credit-earning opportunity on the sole basis of citizenship or immigration status, including, but not limited to, whether the person is in removal proceedings, or immigration authorities have issued a hold request, transfer request, notification request, or civil immigration warrant against the individual.
(2) Consider citizenship and immigration status as a factor in determining a person's custodial classification level, including, but not limited to, whether the person is in removal proceedings, or whether immigration authorities have issued a hold request, transfer request, notification request, or civil immigration warrant against the individual.
7284.12. The provisions ofthis act are severable. If any provision ofthis act or its application is held invalid, that invalidity shall not affect other provisions or applications that can be given effect without the invalid provision or application.
SEC. 4. Section 11369 ofthe Health and Safety Code is repealed. SEC. 5. Ifthe Commission on State Mandates determines that this act contains costs mandated by the state, reimbursement to local agencies and school districts for those costs shall be made pursuant to Part 7 (commencing with Section 17500) ofDivision 4 ofTitle 2 ofthe Government Code.

Case 3:17-cv-04701-WHO Document 42-4 Filed 11/22/17 Page 1 of 6
California ex rel. Xavier Becerra v. Jefferson B. Sessions III, et al., No. 3:17-cv-04701-WHO
Opposition to Plaintiff’s Amended Motion for Preliminary Injunction
Attachment 4 Declaration of Jim Brown Office of Enforcement and Removal Operations U.S. Immigration and Customs Enforcement

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 Case 3:17-cv-04701-WHO Document 69 Filed 12/11/17 Page 1 of 3

1 CHAD A. READLER

Principal Deputy 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

ANTONIA KONKOLY Trial Attorney

7 Department of Justice, Room 7210
Civil Division, Federal Programs Branch

8 20 Massachusetts Avenue, NW

Washington, D.C. 20530
9 Telephone: (202) 514-3495

10

Facsimile: E-mail:

(202) 616-8470 scott.simpson@usdoj.gov

11 COUNSEL FOR DEFENDANTS
(See signature page for parties represented.)

12
IN THE UNITED STATES DISTRICT COURT
13

FOR THE NORTHERN DISTRICT OF CALIFORNIA
14

15

SAN FRANCISCO DIVISION

16 STATE OF CALIFORNIA, ex rel. XAVIER
BECERRA, Attorney General of the State of
17 California,

18

Plaintiff,

19

v.

20 JEFFERSON B. SESSIONS III, Attorney
General of the United States, et al.,
21

22

Defendants.

No. 3:17-cv-04701-WHO
DEFENDANTS’ REPLY TO PLAINTIFF’S RESPONSE TO NOTICE OF ADMINISTRATIVE ACTION

23

Defendants respectfully submit the following reply to plaintiff’s Response to Defendants’

24 Notice of Administrative Action (Dkt. No. 67):

25

1. In awarding a grant to California under the COPS Anti-Methamphetamine Program

26 (“CAMP”), the USDOJ Office of Community Oriented Policing Services (“COPS Office”) noted

27 that the Office of Justice Programs (“OJP”) was inquiring into the grantee’s compliance with 8

28 U.S.C. § 1373 and that the grantee would be unable to obligate or draw down funds until that

Defs’ Reply - Notice of Admin. Action No. 3:17-cv-04701-WHO

Case 3:17-cv-04701-WHO Document 69 Filed 12/11/17 Page 2 of 3

1 inquiry is resolved. Plaintiff complains that that inquiry relates to a state agency other than the

2 agency “responsible for administering COPS funds.” The OJP inquiry, however, addresses

3 whether Section 1373 is violated by the California Values Act, which applies to all state agencies.

4 See Declaration of Alan R. Hanson ¶¶ 13-15 & Exs. F, G (Dkt. No. 42-1); Cal. Gov’t Code

5 §§ 7284-7284.12.

6

2. The COPS Office’s letter notifying California of its CAMP award was dated

7 November 16, 2017, and stated that the grantee needed to accept the award within 90 days from

8 the date of the letter. Plaintiff complains that it did not receive the letter until December 4,1

9 creating “confusion” as to the deadline for acceptance. The award letter and the accompanying

10 “Award Terms and Conditions,” however, cited the “2017 CAMP Award Owner’s Manual,”

11 which states that grantees needing more than 90 days to accept an award may submit a request for

12 extension, “explain[ing] the circumstances that prevent [the] agency from signing the award

13 document within the 90-day period and identify[ing] the date by which the award document will

14 be electronically signed.” See 2017 COPS Anti-Methamphetamine Program (CAMP) Award

15 Owner’s Manual at 34, available at https://cops.usdoj.gov/pdf/2017AwardDocs/camp/AOM.pdf.

16 The pendency of California’s compliance with Section 1373 would likely justify such an

17 extension.

18
Dated: December 11, 2017
19
20

Respectfully submitted,

21

CHAD A. READLER

Principal Deputy Assistant Attorney General

22

BRIAN STRETCH

23

United States Attorney

24

JOHN R. TYLER

25

Assistant Director

26

1 The COPS Office’s usual practice is to date the award letters as of when it makes the

grant decisions internally and obligates the funds. The 2017 CAMP awards “remain[ed]
27 pending” as of November 21, 2017, because the Office had not yet announced the awards. See

28

Declaration of Andrew A. Dorr ¶ 12 (Dkt. No. 42-2). 2

Defs’ Reply - Notice of Admin. Action

No. 3:17-cv-4701-WHO

Case 3:17-cv-04701-WHO Document 69 Filed 12/11/17 Page 3 of 3

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
Defs’ Reply - Notice of Admin. Action No. 3:17-cv-4701-WHO

/s/ W. Scott Simpson W. SCOTT SIMPSON (Va. Bar #27487) ANTONIA KONKOLY Trial Attorney Attorneys, Department of Justice Civil Division, Room 7210 Federal Programs Branch 20 Massachusetts Avenue, NW Washington, D.C. 20530 Telephone: (202) 514-3495 Facsimile: (202) 616-8470 E-mail: scott.simpson@usdoj.gov COUNSEL FOR DEFENDANTS JEFFERSON B. SESSIONS III, Attorney General of the United States; ALAN R. HANSON, Principal Deputy Assistant Attorney General; and U.S. DEPARTMENT OF JUSTICE
3

 
 Case 3:17-cv-04701-WHO Document 77 Filed 01/16/18 Page 1 of 40

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

ANTONIA KONKOLY Trial Attorney

7 Department of Justice, Room 7210 Civil Division, Federal Programs Branch

8 20 Massachusetts Avenue, NW

Washington, D.C. 20530 9 Telephone: (202) 514-3495

10

Facsimile: E-mail:

(202) 616-8470 scott.simpson@usdoj.gov

11 COUNSEL FOR DEFENDANTS JEFFERSON B. SESSIONS III, Attorney

12 General of the United States; ALAN R.

HANSON, Principal Deputy Assistant Attorney 13 General; and U.S. DEPARTMENT OF JUSTICE

14

15

IN THE UNITED STATES DISTRICT COURT

16

FOR THE NORTHERN DISTRICT OF CALIFORNIA

17

SAN FRANCISCO DIVISION

18 STATE OF CALIFORNIA, ex rel. XAVIER

19 BECERRA, Attorney General of the State of California,

20

Plaintiff,

21

v.

22 JEFFERSON B. SESSIONS III, Attorney
23 General of the United States, et al.,

No. 3:17-cv-04701-WHO

DEFENDANTS’ NOTICE OF MOTION AND MOTION TO DISMISS; MEMORANDUM OF POINTS AND AUTHORITIES

Date: Time:

February 28, 2018 2:00 p.m.

24

Defendants.

25

26

27

28

Defs’ Motion to Dismiss; Memo. No. 3:17-cv-04701-WHO

Case 3:17-cv-04701-WHO Document 77 Filed 01/16/18 Page 2 of 40

1

TABLE OF CONTENTS

2

3 TABLE OF AUTHORITIES.............................................................................................................. iii

4 NOTICE OF MOTION AND MOTION TO DISMISS..................................................................... 1

5 MEMORANDUM OF POINTS AND AUTHORITIES.................................................................... 1

6 INTRODUCTION ............................................................................................................................... 1

7 STATUTORY AND ADMINISTRATIVE BACKGROUND .......................................................... 3

8

I. The Immigration and Nationality Act......................................................................... 3

9

II. DOJ Office of Justice Programs and the Byrne JAG Program .................................. 4

10

III. DOJ Office of Community Oriented Policing Services and the Anti-Methamphetamine and Anti-Heroin Task Force Programs............................... 6

11

IV. Recent Developments ................................................................................................. 8

12 ARGUMENT....................................................................................................................................... 8

13

I. The Challenged Immigration-Related Byrne JAG Conditions Are Lawful .............. 9

14

A. The Access and Notice Conditions Are Authorized by Statute

15

and Do Not Violate the Separation of Powers ............................................... 9

16

B. The Notice, Access, and Section 1373 Conditions Are Consistent with the Spending Clause .................................................... 11

17

1. The Notice and Access Conditions Are Unambiguous ................... 11

18

2. The Notice, Access, and Section 1373 Conditions Are

19

Related to the Purposes of the Byrne JAG Program........................ 13

20

C. Plaintiff’s APA Claims Must be Dismissed for Additional Reasons ....................................................................................... 16

21

1. The APA Claims Do Not Challenge Final Agency Action

22

Reviewable under the APA .............................................................. 16

23

2. The Challenged Conditions Are Not Arbitrary or Capricious ........ 17

24

II. Plaintiff’s Claim for a Declaration Regarding its Statutes’ Compliance with Section 1373 Should Be Dismissed.................................................................. 19

25

A. Plaintiff’s Request for a Ruling Regarding Compliance with

26

Section 1373 Is Non-Justiciable ................................................................... 19

27

1. Plaintiff Lacks Standing to Seek a Ruling Regarding Any State Statute Other Than the Values Act.................................. 21

28

Defs’ Motion to Dismiss; Memo.

i

No. 3:17-cv-04701-WHO

Case 3:17-cv-04701-WHO Document 77 Filed 01/16/18 Page 3 of 40

1

2. Plaintiff’s Request for a Ruling Regarding the

Values Act Is Constitutionally Unripe ............................................. 22

2

B. The Court Should Dismiss Plaintiff’s Claim for Declaratory

3

Judgment Regarding the Values Act on Its Merits ...................................... 24

4

III. Section 1373 Is Consistent with the Tenth Amendment .......................................... 27

5 CONCLUSION.................................................................................................................................. 30

6

7

8

9

10

11

12

13

14

15

16

17

18

19

20

21

22

23

24

25

26

27

28

Defs’ Motion to Dismiss; Memo.

ii

No. 3:17-cv-04701-WHO

Case 3:17-cv-04701-WHO Document 77 Filed 01/16/18 Page 4 of 40

1

TABLE OF AUTHORITIES

2 3 CONSTITUTION

4 U.S. Const. art. I, § 8, cl. 1 ............................................................................................................. 11

5 U.S. Const. art. III, § 2, cl. 1........................................................................................................... 19

6

7 CASES

8 Abbott Labs. v. Gardner, 387 U.S. 136 (1967) ............................................................................ 20

9 Abbs v. Sullivan, 963 F.2d 918 (7th Cir. 1992) ............................................................................ 17
10 Ardalan v. McHugh, 2014 WL 3846062 (N.D. Cal. Aug. 4, 2014) ............................................. 23
11 Arizona v. United States, 567 U.S. 387 (2012) .................................................................. 3, 15, 19
12 13 Arlington Cent. Sch. Dist. Bd. of Educ. v. Murphy, 548 U.S. 291 (2006) .................................... 11
14 Barbour v. Wash. Metro. Area Transit Auth., 374 F.3d 1161 (D.C. Cir. 2004) ........................... 14

15 Bennett v. Spear, 520 U.S. 154 (1997) ......................................................................................... 16

16 Benning v. Georgia, 391 F.3d 1299 (11th Cir. 2004) ................................................................... 13
17 Bigelow v. Virginia, 421 U.S. 809 (1975) .................................................................................... 20 18
Bologna v. San Francisco, 121 Cal. Rptr. 3d 406 (Cal. App. 2011) ............................................ 25 19
Charles v. Verhagen, 348 F.3d 601 (7th Cir. 2003) ..................................................................... 13 20 21 Chicago v. Sessions, 264 F. Supp. 3d 933 (N.D. Ill. 2017) ...................................................... 8, 30

22 Chicago v. Sessions, 2017 WL 5499167 (N.D. Ill. Nov. 16, 2017) ............................................. 23

23 Citizens Alert Regarding Env't v. EPA, 102 F. App’x 167 (D.C. Cir. 2004) ............................... 16

24 Citizens for Appropriate Rural Roads v. Foxx, 815 F.3d 1068 (7th Cir. 2016) ........................... 17

25 Citizens to Preserve Overton Park, Inc. v. Volpe, 401 U.S. 402 (1971) ...................................... 17
26 City of New York v. United States, 179 F.3d 29 (2d Cir. 1999) ................................................... 29
27
Clinton v. City of New York, 524 U.S. 417 (1998) ......................................................................... 9 28

Defs’ Motion to Dismiss; Memo.

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1 Conservation Force v. Salazar, 646 F.3d 1240 (9th Cir. 2011) ..................................................... 8

2 Coons v. Lew, 762 F.3d 891 (9th Cir. 2014) ................................................................................ 21
3 Courthouse News Serv. v. Planet, 750 F.3d 776 (9th Cir. 2014) ................................................... 8
4 Davis v. Fenton, 26 F. Supp. 3d 727 (N.D. Ill. 2014) .................................................................. 25
5 6 Dean v. United States, 556 U.S. 568 (2009) ................................................................................ 25
7 DKT Mem’l Fund Ltd. v. AID, 887 F.2d 275 (D.C. Cir. 1989) ...................................................... 9

8 Duvall v. Att’y Gen. of U.S., 436 F.3d 382 (3d Cir. 2006) ........................................................... 14

9 Envtl. Def. Ctr., Inc. v. EPA, 344 F.3d 832 (9th Cir. 2003) ......................................................... 28

10 FCC v. Fox Television Stations, Inc., 556 U.S. 502 (2009) ................................................... 18, 19
11 Freilich v. Bd. of Directors, 142 F. Supp. 2d 679 (D. Md. 2001) ................................................ 30
12 Freilich v. Upper Chesapeake Health, Inc., 313 F.3d 205 (4th Cir. 2002) ................................... 29
13
14 Haw. Cty. Green Party v. Clinton, 14 F. Supp. 2d 1198 (D. Haw. 1998) .................................... 20

15 J&G Sales Ltd. v. Truscott, 473 F.3d 1043 (9th Cir. 2007) ......................................................... 17

16 Karst Envtl. Educ. & Prot., Inc. v. EPA, 403 F. Supp. 2d 74 (D.D.C. 2005), aff’d, 475 F.3d 1291 (D.C. Cir. 2007) ..................................................................................... 16
17
18 Koslow v. Pennsylvania, 302 F.3d 161 (3d Cir. 2002) ................................................................. 14

19 Lee v. City of Los Angeles, 250 F.3d 668 (9th Cir. 2001) .............................................................. 8

20 Louisiana Mun. Police Emps.’ Ret. Sys. v. Wynn, 829 F.3d 1048 (9th Cir. 2016) ......................... 8

21 Madison v. Virginia, 474 F.3d 118 (4th Cir. 2006) ...................................................................... 12
22 Mayweathers v. Newland, 314 F.3d 1062 (9th Cir. 2002) ........................................................... 14
23 Morales v. Trans World Airlines, Inc., 504 U.S. 374 (1992) ....................................................... 25
24 Nat’l Fed’n of Indep. Bus. v. Sebelius, 567 U.S. 519 (2012) ................................................... 3, 28
25
26 Navarro v. Block, 250 F.3d 729 (9th Cir. 2001) ............................................................................. 8

27 New York v. United States, 505 U.S. 144 (1992) ......................................................... 3, 12, 14, 28

28

Defs’ Motion to Dismiss; Memo.

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1 Or. Bureau of Labor & Indus. ex rel. Richardson v. U.S. W. Commc’ns, Inc., 288 F.3d 414 (9th Cir. 2002) ................................................................................................... 19
2
3 Or. Nat. Desert Ass’n v. U.S. Forest Serv., 465 F.3d 977 (9th Cir. 2006) ................................... 16

4 Padilla v. Kentucky, 559 U.S. 356 (2010) .................................................................................... 14

5 Pollara v. Radiant Logistics Inc., 2012 WL 12887095 (C.D. Cal. Sept. 13, 2012) ..................... 20

6 Pollution Denim & Co. v. Pollution Clothing Co., 2009 WL 10672270

7

(C.D. Cal. Feb. 9, 2009) ....................................................................................................... 20, 22

8 Preap v. Johnson, 831 F.3d 1193 (9th Cir. 2016) .................................................................. 15, 27

9 Printz v. United States, 521 U.S. 898 (1997) ......................................................................... 29, 30

10 Providence Yakima Med. Ctr. v. Sebelius, 611 F.3d 1181 (9th Cir. 2010) .................................. 17
11 Rattlesnake Coal. v. EPA, 509 F.3d 1095 (9th Cir. 2007) ........................................................... 16
12 Reno v. Condon, 528 U.S. 141 (2000) .......................................................................................... 29
13
14 S. Dakota v. Dole, 483 U.S. 203 (1987) ........................................................................... 11, 12, 14

15 Steel Co. v. Citizens for a Better Env’t, 523 U.S. 83 (1998) .................................................. 20, 22

16 Steinle v. San Francisco, 230 F. Supp. 3d 994 (N.D. Cal. 2017) ................................................. 26

17 Stone v. Immigration & Naturalization Serv., 514 U.S. 386 (1995) ............................................ 11

18 Texas v. United States, 523 U.S. 296 (1998) .......................................................................... 20, 23

19 United States v. Miami Univ., 294 F.3d 797 (6th Cir. 2002) ........................................................ 12
20

Wash. Legal Found. v. Legal Found. of Wash., 271 F.3d 835 (9th Cir. 2001),

21

aff’d sub nom. Brown v. Legal Found. of Wash., 538 U.S. 216 (2003) .................................... 20

22 Whitmore v. Arkansas, 495 U.S. 149 (1990) .......................................................................... 20, 22
23

24 STATUTES

25 5 U.S.C. § 704 .............................................................................................................................. 16

26 8 U.S.C. § 1101 ........................................................................................................................ 3, 26

27 8 U.S.C. § 1226 ...................................................................................................... 3, 15, 19, 26, 27
28

Defs’ Motion to Dismiss; Memo.

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1 8 U.S.C. § 1227 ........................................................................................................ 3, 4, 14, 26, 29

2 8 U.S.C. § 1228 .................................................................................................................... 3, 4, 29
3 8 U.S.C. § 1231 ...................................................................................................................... 15, 27
4 8 U.S.C. § 1252c ........................................................................................................................... 15
5 6 8 U.S.C. § 1324(c) ........................................................................................................................ 15
7 8 U.S.C. § 1357 ..................................................................................................................... passim

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

9 18 U.S.C. § 1913 .......................................................................................................................... 13

10 28 U.S.C. § 530C(a)(4) ................................................................................................................. 10
11 31 U.S.C. § 1352 .......................................................................................................................... 13
12 34 U.S.C. § 10101 .................................................................................................................... 4, 10
13
14 34 U.S.C. § 10102(a) .................................................................................................... 4, 10, 14, 19

15 34 U.S.C. § 10110 .......................................................................................................................... 9

16 34 U.S.C. §§ 10151-58 ................................................................................................................... 4

17 34 U.S.C. § 10152(a) ............................................................................................................ 4, 5, 14
18 34 U.S.C. § 10153(a) ........................................................................................................................... 5 19
34 U.S.C. § 10154 .................................................................................................................. 16, 23 20
34 U.S.C. § 10156 ................................................................................................................................ 5 21
22 34 U.S.C. § 10202 .......................................................................................................................... 5

23 34 U.S.C. § 10223 ........................................................................................................................ 23

24 34 U.S.C. § 10251(a)(1) ....................................................................................................................... 5

25 34 U.S.C. § 10444(7) ................................................................................................................... 10

26 42 U.S.C. § 11133 ........................................................................................................................ 29
27 42 U.S.C. § 11134 ........................................................................................................................ 29
28

Defs’ Motion to Dismiss; Memo.

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1 Consolidated Appropriations Act, Pub. L. No. 115-31, 131 Stat. 135 (2017) ............................... 5, 7

2 Dep’t of Justice Reauthorization Act of 2005, Pub. L. No. 109-162, 119 Stat. 2960 (2006) ...... 10

3 Joint Resolution Making Continuing Appropriations for FY 1985,

4

Pub. L. No. 98-473, 98 Stat. 1837 (1984) ............................................................................... 10

5 Pub. L. No. 90-351, 82 Stat. 197 (1968) ............................................................................................. 4

6 Cal. Civ. Code § 1798.3 ................................................................................................... 24, 25, 26
7 Cal. Gov’t Code §§ 7282-7282.5 ....................................................................................... 2, 19, 24
8 Cal. Gov’t Code §§ 7283-7283.2 ............................................................................................. 2, 19
9 10 Cal. Gov’t Code §§ 7284-7284.12 ..................................................................................... 2, 19, 24
11 Cal. Gov’t Code § 7284.6 ............................................................................................. 2, 21, 22, 24

12 California Code of Civil Procedure § 155 ................................................................................ 2, 19

13 California Penal Code § 422.93 ................................................................................................ 2, 19
14 California Penal Code § 679.10 ................................................................................................ 2, 19 15
California Penal Code § 679.11 ................................................................................................ 2, 19 16
California Welfare and Institutions Code § 827 ....................................................................... 2, 19 17 18 California Welfare and Institutions Code § 831 ....................................................................... 2, 19

19 LEGISLATIVE MATERIALS
20 H.R. Rep. No. 109-233 (2005) ..................................................................................................... 10
21
22 S. Rep. No. 104-2490 (1996) ............................................................................................................. 29

23 ADMINISTRATIVE AND EXECUTIVE MATERIALS
24 28 C.F.R. Part 18 .................................................................................................................... 16, 23
25
26 28 C.F.R. § 0.119 ........................................................................................................................... 7

27 28 C.F.R. § 0.120 ........................................................................................................................... 7

28 Exec. Order No. 13,688, 80 Fed. Reg. 3451 (Jan. 16, 2015) ......................................................... 5

Defs’ Motion to Dismiss; Memo.

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1

2 OTHER AUTHORITIES
3 Black’s Law Dictionary (5th ed. 1979) .................................................................................. 25, 26
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

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1

NOTICE OF MOTION AND MOTION TO DISMISS

2

PLEASE TAKE NOTICE that on Wednesday, February 28, 2018, 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, to dismiss this action under Rule 12(b)(1) and

6 12(b)(6) of the Federal Rules of Civil Procedure. This motion is based on the following Memo-

7 randum of Points and Authorities, Defendants’ Request for Judicial Notice, the other evidence

8 and records on file in this action, and any other written or oral evidence or argument that may be

9 presented at or before the time this motion is heard by the Court.1

10

MEMORANDUM OF POINTS AND AUTHORITIES

11

INTRODUCTION

12

This case asks the Court to determine whether the U.S. Department of Justice (“USDOJ” or

13 “Department”) can require, in exchange for certain federal law enforcement grants, that state and

14 local governments comply with federal law and cooperate in providing certain information needed

15 for federal law enforcement. USDOJ distributes federal grant funds to aid law enforcement in

16 jurisdictions throughout the country. These funds serve to aid both local and cooperative law

17 enforcement priorities. Consistent with federal prerogatives, the Department has long imposed

18 conditions on these grants, including in the Edward Byrne Memorial Justice Assistance Grant

19 Program (“Byrne JAG Program”). If plaintiff’s theories were correct, all of these longstanding and

20 never-before-challenged conditions would be in jeopardy.

21

To receive grant funds, Byrne JAG Program recipients are required to certify compliance

22 with Section 1373 of Title 8, U.S. Code, part of the Immigration of Nationality Act (“INA”), which

23 bars state and local governments from prohibiting or restricting the exchange of “information

24 regarding the . . . citizenship or immigration status” of any individual with federal immigration

25

26

1 Plaintiff names “DOES 1-100” as defendants in this matter but does not identify those

27 individuals or specify the capacity in which they are being sued. See Am. Compl. ¶ 29 (Dkt. No. 11). Undersigned counsel does not purport to represent those individuals, and claims against

28 them are not at issue in this motion to dismiss. Moreover, because those individuals have not been named or served, granting this motion would resolve this litigation in its entirety.

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Case 3:17-cv-04701-WHO Document 77 Filed 01/16/18 Page 11 of 40

1 authorities. Also, grants under the Byrne JAG Program are conditioned on giving federal

2 immigration authorities access to correctional facilities to meet with aliens and on notifying federal

3 authorities “as early as practicable” before the scheduled release of an alien from custody. Plaintiff

4 argues that these grant conditions are ultra vires and violate the constitutional Separation of Powers,

5 the Spending Clause, and the Administrative Procedure Act (“APA”). Those claims are without

6 merit, however, because – as the INA makes clear – immigration enforcement and law enforcement

7 are inextricably linked. The INA contemplates that federal, state, and local authorities will

8 cooperate on immigration enforcement and that federal authorities will take custody of certain

9 aliens upon their release from state or local custody.

10

Alternatively, plaintiff seeks an order enjoining defendants from finding that any of several

11 state laws violate the Section 1373 compliance condition in either the Byrne JAG Program or two

12 other programs. Specifically, plaintiff seeks an order that Section 1373 is not violated by Califor-

13 nia’s “TRUST Act,” Cal. Gov’t Code §§ 7282-7282.5; the “TRUTH Act,” Cal. Gov’t Code §§

14 7283-7283.2; the “California Values Act,” Cal. Gov’t Code §§ 7284-7284.12 (“Values Act”);

15 California Penal Code §§ 422.93, 679.10, or 679.11; California Code of Civil Procedure § 155; or

16 California Welfare and Institutions Code §§ 827 or 831 (Dkt. No. 26-1). In considering awarding

17 the Byrne JAG grants, the Office of Justice Programs (“OJP”) has not, however, indicated that any

18 of those state statutes other than the Values Act might violate the Section 1373 condition, and even

19 as to that Act, OJP has not yet reached a final decision. Therefore, plaintiff lacks standing to seek

20 an order regarding any of those statutes other than Values Act, and even plaintiff’s claim regarding

21 that Act is unripe.

22

In any event, even if this alternative claim were justiciable, plaintiff’s request for a ruling

23 that the Values Act complies with the Section 1373 condition should be dismissed on its merits.

24 The Values Act, among other things, prohibits state and local agencies from disclosing an

25 individual’s release date, personal information (including home address), or “other information,”

26 with certain exceptions not referencing federal immigration authorities. See Cal. Gov’t Code

27 § 7284.6(a)(1)(C), (D). Section 1373 however, bars prohibiting or restricting the exchange of

28 “information regarding” immigration status with federal immigration authorities, which necessarily

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1 encompasses information regarding custody status and location as needed to carry out the federal

2 responsibilities to “interrogate any . . . person believed to be an alien as to his right to be or to

3 remain in the United States,” to take aliens into federal custody upon release from state or local

4 custody, and to remove certain classes of aliens from the United States as ordered by the Attorney

5 General or the Secretary of Homeland Security. 8 U.S.C. §§ 1357(a)(1), 1226(c)(1), 1227(a), 1228.

6

Finally, plaintiff argues that Section 1373 would violate the Tenth Amendment if

7 defendants construe it as conflicting with any of the state statutes listed above. Finding that the

8 Values Act – the only state statute legitimately at issue here – violates Section 1373 would not,

9 however, “compel [California] to enact or administer a federal regulatory program” or to “act on the

10 Federal Government’s behalf” in violation of the Tenth Amendment. See New York v. United

11 States, 505 U.S. 144, 188 (1992); Nat’l Fed’n of Indep. Bus. v. Sebelius, 567 U.S. 519, 620 (2012).

12 This case involves a grant condition that the State is free to accept or reject, and, in any event,

13 merely protecting the exchange of information with federal authorities does not compel state and

14 local governments to administer a federal program.

15

For these reasons, plaintiff’s First Amended Complaint and all of its claims should be

16 dismissed.

17

STATUTORY AND ADMINISTRATIVE BACKGROUND

18 I. The Immigration and Nationality Act

19

Enforcement of the immigration laws, including and especially the investigation and appre-

20 hension of criminal aliens, is quintessentially a law enforcement function. Through the INA, 8

21 U.S.C. §§ 1101 et seq., Congress granted the Executive Branch significant authority to control the

22 entry, movement, and other conduct of foreign nationals in the United States. These responsibilities

23 are assigned to law enforcement agencies, as the INA authorizes the Department of Homeland

24 Security (“DHS”), USDOJ, and other Executive agencies to administer and enforce the immigration

25 laws. The INA permits the Executive Branch to exercise considerable discretion to direct enforce-

26 ment pursuant to federal policy objectives. See Arizona v. United States, 567 U.S. 387, 396 (2012).

27

The INA includes several provisions that protect the ability of federal officials to investigate

28 the status of aliens in the United States and otherwise enforce the immigration laws. For example,

Defs’ Motion to Dismiss; Memo.

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1 the statute provides that a federal immigration officer “shall have power without warrant . . . to

2 interrogate any alien or person believed to be an alien as to his right to be or to remain in the United

3 States.” 8 U.S.C. § 1357(a)(1). Separately, pursuant to Section 1373, “a Federal, State, or local

4 government entity or official may not prohibit, or in any way restrict, any government entity or

5 official from sending to, or receiving from, [federal immigration authorities] information regarding

6 the citizenship or immigration status, lawful or unlawful, of any individual.” Id. § 1373(a).2 The

7 INA provides that certain classes of aliens shall be removed from the United States upon order of

8 the Attorney General or Secretary of Homeland Security. See, e.g., id. §§ 1227(a), 1228.

9 II. DOJ Office of Justice Programs and the Byrne JAG Program

10

Title I of the Omnibus Crime Control and Safe Streets Act of 1968 established the Office of

11 Justice Programs (“OJP”), and provides for OJP to be headed by an Assistant Attorney General

12 (“AAG”). See Pub. L. No. 90-351, 82 Stat. 197 (1968), codified as amended at 34 U.S.C. §§ 10101

13 et seq. Congress gave the AAG certain “[s]pecific, general and delegated powers,” including the

14 power to “maintain liaison with . . . State governments in matters relating to criminal justice.” 34

15 U.S.C. § 10102(a)(2) (emphasis added). Notably, the statute also authorizes the AAG to “exercise

16 such other powers and functions as may be vested in [him] pursuant to this chapter or by delegation

17 of the Attorney General, including placing special conditions on all grants, and determining

18 priority purposes for formula grants.” Id. § 10102(a)(6) (emphasis added).

19

The same title of the Omnibus Crime Control Act also established the Byrne JAG Program.

20 See generally 34 U.S.C. §§ 10151-58. Under this program, OJP is authorized to “make grants to

21 States and units of local government . . . to provide additional personnel, equipment . . . and

22 information systems for criminal justice, including for any one or more of [certain enumerated]

23 programs.” Id. § 10152(a)(1). In the same chapter, “criminal justice” is defined broadly to include

24

25

2 Additionally, 8 U.S.C. § 1373(b) provides that “[n]otwithstanding any other provision

of Federal, State, or local law, no person or agency may prohibit, or in any way restrict, a Federal,

26 State, or local government entity from doing any of the following with respect to information

regarding the immigration status, lawful or unlawful, of any individual: (1) Sending such infor27 mation to, or requesting or receiving such information from, [federal immigration authorites].

28

(2) Maintaining such information. (3) Exchanging such information with any other Federal, State, or local government entity.”

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1 various activities of the police, the courts, and “related agencies.” Id. § 10251(a)(1).

2

The Byrne JAG Program provides “formula grants” – that is, grants that, when awarded,

3 must follow a statutory formula based on population, the rate of violent crime, and other factors. Id.

4 §§ 10152(a)(1), 10156. Funding under the Program is subject to annual appropriations. For FY

5 2017, Congress appropriated $396,000,000 for the Byrne JAG Program, with certain carve-outs

6 from that amount obligated to specific initiatives. See Consolidated Appropriations Act, Pub. L.

7 No. 115-31, Div. B, Title II, 131 Stat. 135, 203 (2017). By statute, in order to request a Byrne JAG

8 grant, the chief executive officer of a State or unit of local government must submit an application

9 “in such form as the Attorney General may require,” 34 U.S.C. § 10153(a); and the application

10 must include, among other things, “[a] certification, made in a form acceptable to the Attorney

11 General . . . that . . . the applicant will comply with . . . all . . . applicable Federal laws,” id.

12 § 10153(a)(5)(D). The application also must contain several assurances, including “[a]n assurance

13 that, for each fiscal year covered by an application, the applicant shall maintain and report such

14 data, records, and information (programmatic and financial) as the Attorney General may

15 reasonably require.” Id. § 10153(a)(4).

16

OJP has historically included a variety of conditions in Byrne JAG award documents. For

17 example, OJP has imposed, without objection, conditions related to information sharing and

18 privacy protection, see Request for Judicial Notice (“RJN”), Ex. A ¶ 27, research using human

19 subjects, see id. ¶ 30, and training, see id. ¶¶ 33-34. Other historical conditions imposed by the

20 Assistant Attorney General have been inspired by Executive Branch prerogatives, and in some

21 instances resulted in subsequent congressional codification. One such condition, which prohibits

22 use of Byrne JAG funds to purchase military style equipment, relates in part to an Executive

23 Order issued by President Obama in 2015. See id. ¶ 43; Exec. Order No. 13,688, 80 Fed. Reg.

24 3451 (Jan. 16, 2015). Since 2012, other conditions have required that recipients (a) comply with

25 specific national standards when purchasing body armor and (b) institute a “mandatory wear”

26 policy for any purchased armor. RJN, Ex. A ¶¶ 39-40. While those conditions have now been

27 codified by Congress, see 34 U.S.C. §§ 10202(c)(1)(B), (C), they originated as exercises of

28 USDOJ’s authority to impose special conditions. And the Assistant Attorney General has

Defs’ Motion to Dismiss; Memo.

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1 imposed an “American-made” requirement for body armor purchases, something Congress did

2 not choose to codify last year. RJN, Ex. A ¶ 39. The conditions attached to Byrne JAG grants

3 have varied over time, depending on national law enforcement necessities and USDOJ priorities.

4

For the current Byrne JAG grant cycle, Fiscal Year (“FY”) 2017, OJP notified applicants

5 that awards under the Program will include three conditions requiring modest cooperation with

6 federal law enforcement prerogatives in the immigration setting. Those conditions will require

7 grantees to (1) have a policy of providing DHS with advance notice of the scheduled release date of

8 certain individuals held in state or local correctional facilities (the “notice condition”); (2) have a

9 policy permitting federal agents to access state or local correctional facilities for certain immigra-

10 tion enforcement purposes (the “access condition”); and (3) comply with 8 U.S.C. § 1373, which, as

11 noted above, prohibits state and local government and law enforcement entities or officials from

12 restricting certain communications with DHS (the “Section 1373 condition”). RJN, Ex. B

13 (Greenville SC Award 2017) ¶¶ 53, 55, 56; RJN, Ex. C (Binghamton NY Award 2017) ¶¶ 16, 24,

14 41; Am. Compl. ¶¶ 75-77, 84 (Dkt. No. 11).

15

Under the “Rules of Construction” within those grant conditions, the award documents

16 make clear that nothing in the notice or access conditions requires a grantee to detain “any

17 individual in custody beyond the date and time the individual would have been released in the

18 absence of this condition.” RJN, Ex. B ¶¶ 53, 55, 56; RJN, Ex. C ¶¶ 53, 55, 56. The documents

19 also make clear that these conditions impose no requirements in relation to any requests by

20 federal immigration authorities to detain non-citizens, and that the notice condition requires “only

21 as much advance notice as practicable” before the release of a non-citizen. Id. Finally, the

22 conditions apply only to the “program or activity” to be funded under the award (as stated above),

23 and they allow awarded funds to be used for costs incurred in implementing the conditions. See

24 id.

25 III. 26

DOJ Office of Community Oriented Policing Services and the Anti-Methamphetamine and Anti-Heroin Task Force Programs

27

Pursuant to authority granted by the Violent Crime Control and Law Enforcement Act of

28 1994 (“VCCLEA”), the Attorney General created the Office of Community Oriented Policing

Defs’ Motion to Dismiss; Memo.

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1 Services (“COPS Office”) to administer certain community policing grants. The Office is headed

2 by a Director appointed by the Attorney General, 28 C.F.R. §§ 0.119, 0.120, and currently

3 administers several programs, including the COPS Anti-Methamphetamine Program (“CAMP”)

4 and the Anti-Heroin-Task Force Program (“AHTF”). CAMP “provid[es] funds directly to state law

5 enforcement agencies to investigate illicit activities related to the manufacture and distribution of

6 methamphetamine.” RJN, Ex. D (CAMP Fact Sheet 2017). AHTF “provid[es] funds to investigate

7 illicit activities related to the distribution of heroin or unlawful distribution of prescriptive opioids,

8 or unlawful heroin and prescription opioid traffickers[.]” RJN, Ex. E (AHTF Fact Sheet 2017); see

9 Am. Compl. ¶¶ 95-96. Both programs are authorized by the Consolidated Appropriations Act,

10 2017. 131 Stat. at 207.

11

Like all programs administered by the COPS Office, CAMP and AHTF are discretionary

12 programs, meaning all applicants must compete against each other for limited available funds. See

13 Am. Compl. ¶¶ 95-96. Funding under these programs is subject to annual appropriations. For FY

14 2017, Congress appropriated $7,000,000 “for competitive grants to State law enforcement agencies

15 in States with high seizures of precursor chemicals, finished methamphetamine, laboratories, and

16 laboratory dump seizures” (i.e., CAMP), and $10,000,000 “for competitive grants to statewide law

17 enforcement agencies in States with high rates of primary treatment admissions for heroin and other

18 opioids” (i.e., AHTF). 131 Stat. at 208.

19

CAMP and AHTF grantees, like all federal grantees, are required to comply with all

20 applicable federal laws. There is no statutorily prescribed method for evaluating CAMP and AHTF

21 applications. Rather, the COPS Office develops factors and methods to determine how best to allo-

22 cate each program’s finite funds each year, and to evaluate and score applications. RJN, Ex. F

23 (2017 CAMP Methodology), Ex. G (2017 AHTF Methodology). Beginning with FY 2016, the

24 COPS Office has advised each CAMP and AHTF applicant that this requirement includes

25 compliance with 8 U.S.C. § 1373. RJN, Ex. H at 1 (CAMP Award Owner’s Manual 2016), Ex. I at

26 1 (AHTF Award Owner’s Manual 2016). In FY 2017, the COPS Office required certification of

27 compliance with Section 1373 as a threshold eligibility requirement. RJN, Ex. J at 5 (CAMP Pre-

28 Award FAQs 2017), Ex. K at 5 (AHTF Pre-Award FAQs 2017).

Defs’ Motion to Dismiss; Memo.

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1 IV. Recent Developments

2

On September 15, 2017, a federal district court entered a partial preliminary injunction in

3 similar litigation brought by the City of Chicago. Chicago v. Sessions, 264 F. Supp. 3d 933, 945

4 (N.D. Ill. 2017) (“Chicago I”). The Chicago court enjoined the notice and access conditions in the

5 Byrne JAG Program, but declined plaintiff’s request to enjoin the Section 1373 condition. See id.

6 (noting that “Congress could [rationally] expect an entity receiving federal funds to certify its

7 compliance with [Section 1373], as the entity is – independent of receiving federal funds –

8 obligated to comply”). Defendants appealed the preliminary injunction order; that appeal is now

9 fully briefed and scheduled to be argued before the U.S. Court of Appeals for the Seventh Circuit

10 on January 19, 2018, Chicago v. Sessions, 17-2991 (7th Cir.).

11

ARGUMENT

12

Defendants move for dismissal of this action under Rule 12(b)(1) and 12(b)(6) of the

13 Federal Rules of Civil Procedure. A motion under Rule 12(b)(1) challenges the subject matter

14 jurisdiction of the court to reach a claim. “A ‘facial’ attack [on jurisdiction] asserts that a

15 complaint’s allegations are themselves insufficient to invoke jurisdiction,” Courthouse News

16 Serv. v. Planet, 750 F.3d 776, 780 n.3 (9th Cir. 2014), while a factual challenge to jurisdiction

17 “relies on affidavits or any other evidence properly before the court to contest the truth of the

18 complaint’s allegations,” id. at 780 (citation omitted). A motion under Rule 12(b)(6) “tests the

19 legal sufficiency of a claim.” Navarro v. Block, 250 F.3d 729, 732 (9th Cir. 2001). Dismissal

20 under this rule is proper if there is a “lack of a cognizable legal theory or the absence of sufficient

21 facts alleged under a cognizable legal theory.” Conservation Force v. Salazar, 646 F.3d 1240,

22 1241-42 (9th Cir. 2011) (internal citation omitted). Under both 12(b)(1) and 12(b)(6), the court

23 “may take judicial notice of matters of public record.” Lee v. City of Los Angeles, 250 F.3d 668,

24 689 (9th Cir. 2001) (citation omitted); see Louisiana Mun. Police Emps.’ Ret. Sys. v. Wynn, 829

25 F.3d 1048, 1063 (9th Cir. 2016).

26

Plaintiff’s constitutional and APA challenges to the access, notice, and Section 1373

27 conditions in the Byrne JAG Program should be dismissed on their merits under Rule 12(b)(6).

28 Further, plaintiff’s request for a ruling that none of its statutes violate Section 1373 should be

Defs’ Motion to Dismiss; Memo.

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1 dismissed under both Rule 12(b)(1) and 12(b)(6): Plaintiff lacks standing to seek an order regard-

2 ing any of the state statutes it identifies other than the California Values Act and the claim regarding

3 the Values Act is unripe – thus depriving the Court of jurisdiction. And even if the Court had

4 jurisdiction over plaintiff’s request for a ruling regarding the Values Act, the request should be

5 dismissed on its merits under Rule 12(b)(6). Finally, plaintiff’s claim that Section 1373 violates the

6 Tenth Amendment should also be dismissed on its merits.

7 I.

The Challenged Immigration-Related Byrne JAG Conditions Are Lawful

8

A. The Access and Notice Conditions Are Authorized by Statute

9

and Do Not Violate the Separation of Powers

10

In the First and Third Claims for Relief in its Amended Complaint,3 California alleges that

11 the notice and access conditions in the Byrne JAG Program – although not, notably, the Section

12 1373 compliance condition – are ultra vires and violate the Constitution’s separation of powers.

13 Am. Compl. ¶¶ 122-26, 133-38. Both theories rest fundamentally on the State’s incorrect view

14 that Congress has not authorized USDOJ to impose these conditions. See id. ¶¶ 88-94.

15

As a threshold matter, there is no serious dispute that Congress may delegate to the

16 Executive Branch the authority to attach conditions on funding. See, e.g., Clinton v. City of New

17 York, 524 U.S. 417, 488 (1998) (“Congress has frequently delegated the President the authority to

18 spend, or not to spend, particular sums of money.”); DKT Mem’l Fund Ltd. v. AID, 887 F.2d 275,

19 280-81 (D.C. Cir. 1989) (upholding statutory delegation to the Executive to impose terms and

20 conditions on federal spending programs). Further, and as relevant here, the Attorney General

21 has “final authority over all functions, including any grants” made by OJP, which administers the

22 Byrne JAG Program. 34 U.S.C. § 10110. Under the Attorney General’s authority, an Assistant

23 Attorney General heads OJP. See id. § 10101; 28 U.S.C. § 530C(a)(4). In setting forth the duties

24 3 The theories pled under the First Claim for Relief (which purports to arise directly under
25 the Constitution) and the Third Claim for Relief (which is pled under the APA) are substantively

26

identical (except insofar as the Third Claim also reiterates, under the aegis of the APA, the constitutional Spending Clause theory additionally pled as a stand-alone constitutional claim in

27 the Second Claim for Relief). For the reasons stated in Section I.C. below, the Third Claim should be dismissed for the additional threshold reason that California fails to identify a

28 challengeable final agency action under the APA.

Defs’ Motion to Dismiss; Memo.

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1 and functions of the AAG, Congress stated that the AAG is to “exercise such other powers and

2 functions as may be vested in the Assistant Attorney General pursuant to this chapter or by

3 delegation of the Attorney General, including placing special conditions on all grants, and

4 determining priority purposes for formula grants.” 34 U.S.C. § 10102(a)(6).

5

Thus, a plain reading of the statutory text indicates that the AAG’s power includes, at a

6 minimum, the power to “plac[e] special conditions on all grants” administered by OJP. Id. The

7 breadth of the AAG’s statutory power is reinforced by the authority to “determin[e] priority

8 purposes for formula grants.” Id. Confirming the statute’s plain text, a report accompanying the

9 enactment of this language stated that the provision “allows the Assistant Attorney General to

10 place special conditions on all grants and to determine priority purposes for formula grants.”

11 H.R. Rep. No. 109-233, at 101 (2005).

12

Indeed, the particular statutory language at issue here – the authority for “placing special

13 conditions on all grants, and determining priority purposes for formula grants” – was added as

14 part of the very same legislation that created the Byrne JAG Program. See DOJ Reauthorization

15 Act of 2005, Pub. L. No. 109-162, § 1152(b), 119 Stat. 2960 (2006) (adding language to

16 subsection (a)(6)); id. § 1111 (creating Byrne JAG Program). Prior to that 2006 enactment, the

17 provision stated only that the AAG for OJP “exercise[s] such other powers and functions as may

18 be vested in the Assistant Attorney General pursuant to this title or by delegation of the Attorney

19 General.” Joint Resolution Making Continuing Appropriations for FY 1985, Pub. L. No. 98-473,

20 § 603, 98 Stat. 1837 (1984). Also, by contrast, the organic statute for the head of a separate

21 USDOJ grant-making component, enacted in 2002, continues to contain substantially the same,

22 more limited language as Section 10102 earlier contained, without the additional “special

23 conditions” and “priority purposes” powers that Congress elected to bestow with respect to OJP.

24 See 34 U.S.C. § 10444(7) (providing only that Director of Violence Against Women Office

25 “[e]xercis[es] such other powers and functions as may be vested in the Director pursuant to this

26 subchapter or by delegation of the Attorney General”). This context confirms that Congress

27 intended the “special conditions” and “priority purposes” language to confer distinctive and

28 meaningful power. “When Congress acts to amend a statute, [courts] presume it intends its

Defs’ Motion to Dismiss; Memo.

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1 amendment to have real and substantial effect.” Stone v. INS, 514 U.S. 386, 397 (1995).

2

Thus, the notice and access conditions – which merely promote intergovernmental law

3 enforcement cooperation, so that grantee policies do not impair federal policies – come

4 comfortably within the fonts of delegated power in Section 10102(a)(6). Pursuant to this

5 authority, the AAG may prioritize formula grants, like the Byrne JAG Program, for jurisdictions

6 that cooperate with federal authorities in achieving federal law enforcement priorities, including

7 removal of criminal aliens under immigration law.

8

B. The Notice, Access, and Section 1373 Conditions

9

Are Consistent with the Spending Clause

10

The Second and Third Claims for Relief in the Amended Complaint4 allege that the

11 notice, access, and Section 1373 conditions in the Byrne JAG Program violate the Spending

12 Clause. Am. Compl. ¶¶ 127-32, 137. More specifically, these claims allege that the notice and

13 access conditions – although, again, not the Section 1373 compliance condition – are

14 impermissibly ambiguous, id. ¶¶ 86-87, 131, and further that all three conditions are insufficiently

15 related to the statutory purposes of the Byrne JAG Program, id. ¶ 130; see id. ¶ 137. Both

16 contentions are wrong.

17

1. The Notice and Access Conditions are Unambiguous

18

Article I of the Constitution confers on Congress the authority to “lay and collect Taxes,

19 Duties, Imposts and Excises, to pay the Debts and provide for the common Defence and general

20 Welfare of the United States.” U.S. Const. art. I, § 8, cl. 1. It is well-established that the Spending

21 Clause authority is “broad,” and empowers Congress to “set the terms on which it disburses federal

22 money to the States[.]” Arlington Cent. Sch. Dist. Bd. of Educ. v. Murphy, 548 U.S. 291, 296

23 (2006); see also, e.g., S. Dakota v. Dole, 483 U.S. 203, 206 (1987) (noting that Congress has

24 “repeatedly employed the [spending] power to further broad policy objectives by conditioning

25

26

4 As with the separation of powers claims in the First and Third Claims for Relief discussed above, there is substantial overlap between the Second and Third Claims for Relief, the

27

latter of which reiterates the theories of the First and Second Claims, but under the aegis of the APA. Defendants again note that, for the reasons stated in Section I.C. below, the Third Claim

28

fails for the additional threshold reason that California fails to identify a challengeable final agency action under the APA.

Defs’ Motion to Dismiss; Memo.

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1 receipt of federal moneys upon compliance by the recipient with federal statutory and adminis-
2 trative directives.”) (citations omitted); United States v. Miami Univ., 294 F.3d 797, 808 (6th Cir.
3 2002) (“Spending clause legislation, when knowingly accepted by a fund recipient, imposes
4 enforceable, affirmative obligations” on the recipient).
5 While it is beyond cavil that the Spending Clause confers “broad” authority, that authority is
6 nonetheless subject to certain discrete limitations, including that any terms attached to the receipt of
7 federal funds must be “unambiguous[],” and thus enable the potential recipient to “exercise [its]
8 choice” to participate (or not) in the program “knowingly, cognizant of the consequences of [its]
9 participation.” Dole, 483 U.S. at 207 (citations omitted); see also, e.g., Madison v. Virginia, 474
10 F.3d 118, 124 (4th Cir. 2006) (the Spending Clause is a “‘permissible method of encouraging a
11 State to conform to federal policy choices,’ because ‘the ultimate decision’ of whether to conform is
12 retained by the States – wh[ich] can always decline the federal grant.”) (quoting New York, 505
13 U.S. at 168)). Contrary to plaintiff’s assertions, the notice and access conditions easily satisfy the
14 clear-notice requirement.
15 These conditions clearly state what conduct is required, so that grantees can “exercise
16 their choice knowingly, cognizant of the consequences of their participation.” Dole, 483 U.S. at
17 207 (citation omitted). They require grantees (1) to give “agents of the United States acting under
18 color of federal law” access to correctional facilities “to meet with individuals who are (or are
19 believed by such agents to be) aliens and to inquire as to such individuals’ right to be or remain in
20 the United States,” and (2) to notify DHS, upon “formal written request” and “as early as
21 practicable,” before “the scheduled release date and time for a particular alien in such facility.”
22 RJN, Ex. B (Greenville SC Award 2017) ¶¶ 55, 56; RJN, Ex. C (Binghamton NY Award 2017)
23 ¶¶ 55, 56. The award documents also specify that nothing in these conditions requires a grantee
24 to detain “any individual in custody beyond the date and time the individual would have been
25 released in the absence of this condition”; that the conditions impose no requirements regarding
26 any requests by federal immigration authorities to detain aliens; and that the notice condition
27 requires “only as much advance notice as practicable.” Id. Moreover, to the extent any uncer-
28

Defs’ Motion to Dismiss; Memo.

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1 tainty might remain, the FY 2017 Byrne JAG solicitation invited any prospective grantee with a

2 question about “any . . . requirement of this solicitation” to contact OJP’s Response Center

3 (customer service center) by telephone, email, or Internet chat. See Am. Compl., Ex. A at 2. A

4 prospective grantee could also contact the appropriate “State Policy Advisor” – that is, a specific,

5 named OJP employee assigned to work with jurisdictions within a specified geographical area.

6 Id.; BJA Programs Office Contact Information, available at https://www.bja.gov/ About/

7 Contacts/ ProgramsOffice.html (last visited Jan. 16, 2018).5

8

Further, to the extent there is any uncertainty at the margins of the notice and access

9 conditions, such a penumbra would not render these conditions unconstitutionally ambiguous.

10 Indeed, “the exact nature of [grant] conditions may be largely indeterminate, provided that the

11 existence of the conditions is clear, such that States have notice that compliance with the

12 conditions is required.” Charles v. Verhagen, 348 F.3d 601, 607 (7th Cir. 2003) (citation

13 omitted); see, e.g., Benning v. Georgia, 391 F.3d 1299, 1306 (11th Cir. 2004) (“Once Congress

14 clearly signals its intent to attach federal conditions to Spending Clause legislation, it need not

15 specifically identify and proscribe in advance every conceivable state action that would be

16 improper.”) (citation omitted). Moreover, plaintiff does not complain about the clarity of any

17 other Byrne JAG conditions, such as those requiring compliance with restrictions on lobbying

18 under 18 U.S.C. § 1913 and 31 U.S.C. § 1352, RJN, Ex. B (Greenville SC Award 2017) ¶ 19;

19 compliance with “federal appropriations statutes” generally, id. ¶ 20; reporting of evidence of

20 violations of the False Claims Act, id. ¶ 21; and compliance with prohibitions on reprisal under

21 41 U.S.C. § 4712, id. ¶ 23.

22

2. The Notice, Access, and Section 1373 Conditions Are

23

Related to the Purposes of the Byrne JAG Program

24

California further alleges that the notice, access, and Section 1373 compliance conditions

25 are not adequately related to the purposes of the Byrne JAG Program to satisfy the Spending

26 Clause. Am. Compl. ¶ 130. This argument also fails on its face.

27

28

5 “BJA” refers to the Bureau of Justice Assistance, the OJP component that administers the Byrne JAG Program.

Defs’ Motion to Dismiss; Memo.

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1

First, any relatedness inquiry required by the Spending Clause does not pose a difficult

2 hurdle; to the contrary, the Ninth Circuit has emphasized that this is a “low-threshold” inquiry that

3 “is a far cry from . . . an exacting standard for relatedness.” Mayweathers v. Newland, 314 F.3d

4 1062, 1067 (9th Cir. 2002); see id. (stating that conditions on federal grants “might be illegitimate if

5 the conditions share no relationship to the federal interest in particular national projects or

6 programs”) (citation omitted)). Thus, in Dole, the Supreme Court upheld conditioning the receipt

7 of federal highway funds on the loosely-related requirement that a State adopt a minimum drinking

8 age. See 483 U.S. at 208-09; see also New York, 505 U.S. at 167 (stating that only “some relation-

9 ship” is necessary between spending conditions and “the purpose of the federal spending.”); Koslow

10 v. Pennsylvania, 302 F.3d 161, 175 (3d Cir. 2002) (explaining that there need only be a “discern-

11 able relationship” between a condition imposed pursuant to the Spending Clause and the “federal

12 interest in a program it funds”). As the D.C. Circuit has observed, the Supreme Court has never

13 “overturned Spending Clause legislation on relatedness grounds.” Barbour v. Wash. Metro. Area

14 Transit Auth., 374 F.3d 1161, 1168 (D.C. Cir. 2004).

15

The grant conditions at issue here easily satisfy this “low-threshold” relatedness inquiry.

16 Mayweathers, 314 F.3d at 1067. The Byrne JAG Program’s organic statute specifies that program

17 funds are designed to provide resources “for criminal justice,” to support programs including law

18 enforcement, prosecution, crime prevention, and corrections. 34 U.S.C. § 10152(a)(1). These

19 goals are also reflected in the responsibilities of the AAG, which involve “disseminat[ing] infor-

20 mation” and “maintain[ing] liaison with . . . State governments” in matters relating to “criminal

21 justice.” 34 U.S.C. § 10102(a)(1), (2) (emphasis added). Further, immigration enforcement,

22 which the conditions promote, undoubtedly intersects with the Byrne JAG Program’s criminal

23 justice purposes, at a minimum for the simple reason that a conviction for any of a wide array of

24 criminal offenses renders an alien removable from this country. See 8 U.S.C. § 1227(a)(2).

25 Indeed, “[a] primary goal of several recent overhauls of the INA has been to ensure and expedite

26 the removal of aliens convicted of serious crimes.” Duvall v. Att’y Gen. of U.S., 436 F.3d 382,

27 391 (3d Cir. 2006); see Padilla v. Kentucky, 559 U.S. 356, 360 (2010) (observing that “deporta-

28 tion or removal is now virtually inevitable for a vast number of noncitizens convicted of crimes”)

Defs’ Motion to Dismiss; Memo.

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1 (citation omitted). Once removed, a criminal alien who has committed a removable offense – for

2 example, an aggravated felony, domestic violence, child abuse, or certain firearm offenses – is no

3 longer present in this country with the potential to re-offend.

4

The Immigration and Nationality Act also repeatedly contemplates cooperation among

5 state and local officers and federal officials on immigration enforcement. See, e.g., 8 U.S.C.

6 § 1357(g) (authorizing formal cooperative agreements under which trained and qualified state

7 and local officers may perform specified functions of a federal immigration officer in relation

8 to the investigation, apprehension, or detention of aliens); id. § 1324(c) (authorizing state and

9 local officers to make arrests for violations of the INA’s prohibition against smuggling,

10 transporting, or harboring aliens); id. § 1252c (authorizing state and local officers to arrest certain

11 felons who have unlawfully returned to the United States). Under authorities such as these, “state

12 officers may perform the functions of an immigration officer.” Arizona, 567 U.S. at 408.

13 Furthermore, given that the INA contemplates the federal detention of certain aliens upon their

14 release from state or local custody, see 8 U.S.C. § 1226(c), the conditions can be understood as

15 seeking to ensure that a state or local grantee’s law enforcement activities not impair the law

16 enforcement activities of the federal government. Congress has mandated that certain aliens who

17 have committed criminal offenses be taken into federal custody pending removal proceedings, but

18 only “when the alien is released” from state custody. Id. § 1226(c)(1); see Preap v. Johnson, 831

19 F.3d 1193, 1199 (9th Cir. 2016) (holding that mandatory detention provision applies only to

20 aliens who are detained promptly after their release from criminal custody). With respect to

21 incarcerated aliens subject to a final removal order, the INA establishes a “removal period” of 90

22 days that begins with the date of the alien’s release. 8 U.S.C. § 1231(a)(1)(B). It is crucial to this

23 cooperative law enforcement framework that states and localities respond to requests for release

24 date information, give federal agents access to detainees in their custody, and avoid restricting

25 communication of information regarding immigration status to DHS.

26

27

28

Defs’ Motion to Dismiss; Memo.

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1

C. Plaintiff’s APA Claims Must Be Dismissed for Additional Reasons

2

1. The APA Claims Do Not Challenge Final Agency Action

3

Reviewable under the APA

4

“To obtain judicial review under the APA, [a plaintiff] must challenge a final agency

5 action.” Or. Nat. Desert Ass’n v. U.S. Forest Serv., 465 F.3d 977, 982 (9th Cir. 2006) (citing 5

6 U.S.C. § 704). “[F]inality is . . . a jurisdictional requirement,” id. (internal citation omitted),

7 which is satisfied only when the challenged action (1) “mark[s] the consummation of the

8 agency’s decisionmaking process,” and (2) is “one by which rights or obligations have been

9 determined, or from which legal consequences will flow.” Bennett v. Spear, 520 U.S. 154, 177-

10 78 (1997) (citations omitted).

11

Notwithstanding this black-letter requirement, neither of California’s APA claims (the

12 Third and Fourth Claims for Relief) identifies any qualifying final agency action. Indeed,

13 California initiated this litigation before even seeing the text of the actual conditions, and even

14 now USDOJ has not yet reached a final determination as to whether to grant or deny the State’s

15 FY 2017 Byrne JAG application. To the contrary, the Department has, to date, issued only a

16 “preliminary assessment” of California’s compliance with Section 1373, RJN, Ex. L, and the

17 State’s response to the same, RJN, Ex. M, remains under consideration. Further, even if OJP

18 determined to deny California’s grant application at the conclusion of this process, the State would

19 then be entitled to invoke regulatory appeal procedures before any such denial could become

20 statutorily “final[].” 34 U.S.C. § 10154; see generally 28 C.F.R. Part 18. In such circumstances,

21 no final, reviewable agency action will exist until OJP has thoroughly “reviewed [the] grant

22 application and decided [whether] to disburse the funds.” Rattlesnake Coal. v. EPA, 509 F.3d

23 1095, 1103-04 (9th Cir. 2007) (emphasis added); see, e.g., Citizens Alert Regarding Env't v.

24 EPA, 102 F. App’x 167, 168 (D.C. Cir. 2004) (“Until EPA completes its review and reaches a

25 decision [as to whether to award a proposed grant], there has been no final agency action . . . and

26 the matter is not ripe for judicial review.”); Karst Envtl. Educ. & Prot., Inc. v. EPA, 403 F. Supp.

27 2d 74, 81 (D.D.C. 2005) (no final agency action where agency had taken “some action with

28 respect to the grant application, but “had not yet decided whether to award the grant”), aff’d, 475

Defs’ Motion to Dismiss; Memo.

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1 F.3d 1291 (D.C. Cir. 2007).
2 Thus, as concerns California’s challenge to the conditions, the consummation of OJP’s
3 decision-making process has not yet occurred, plaintiff’s “rights or obligations” have not been
4 determined, and no “legal consequences” have arisen. Cf. Citizens for Appropriate Rural Roads
5 v. Foxx, 815 F.3d 1068, 1079 (7th Cir. 2016) (affirming dismissal because “a challenge to agency
6 conduct is ripe only if it is filed after the final agency action”; the challenge otherwise “rests upon
7 contingent future events that may not occur as anticipated, or that may not occur at all”); Abbs v.
8 Sullivan, 963 F.2d 918, 927 (7th Cir. 1992) (“A challenge to administrative action . . . falls
9 outside the grant of jurisdiction in . . . the Administrative Procedure Act when the only harm the
10 challenger seeks to avert is the inconvenience of having to go through the administrative process
11 before obtaining a definitive declaration of his legal rights.”). This Court should, accordingly,
12 dismiss both of California’s APA claims on this threshold jurisdictional ground alone.
13 2. The Challenged Conditions Are Not Arbitrary or Capricious
14 Plaintiff’s Fourth Claim for Relief alleges that the notice, access, and Section 1373
15 conditions are arbitrary or capricious in violation of the APA. See Am. Compl. ¶¶ 139-44. As an
16 initial matter, if the conditions are statutorily authorized and comport with the Spending Clause –
17 which plaintiff largely concedes at least for the Section 1373 condition6 – it is unclear how 18
“arbitrary or capricious” scrutiny could otherwise limit USDOJ’s broad discretion. In any event, 19
when the courts review an agency’s action under the “arbitrary or capricious” standard, it is 20
“required to be ‘highly deferential,’” and to “presum[e] the agency action to be valid” as long as 21
it is supported by a rational basis. Providence Yakima Med. Ctr. v. Sebelius, 611 F.3d 1181, 1190 22
(9th Cir. 2010) (quoting J&G Sales Ltd. v. Truscott, 473 F.3d 1043, 1051 (9th Cir. 2007)). This 23
standard of review is “narrow,” and does not authorize a district court “to substitute its judgment 24
for that of the agency.” Citizens to Preserve Overton Park, Inc. v. Volpe, 401 U.S. 402, 416 25
(1971). 26

27

6 As explained above, the Amended Complaint raises no claim that the Section 1373

compliance condition violates the separation of powers, is ultra vires, or offends the “ambiguity”

28 inquiry under the Spending Clause.

Defs’ Motion to Dismiss; Memo.

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1

Here, plaintiff’s claim fails because “the agency’s reasons for” imposing the challenged

2 conditions “were entirely rational.” FCC v. Fox Television Stations, Inc., 556 U.S. 502, 517

3 (2009). The imposition of the challenged conditions is understandable as a result of a May 2016

4 report by the Department’s Office of Inspector General (“OIG”) finding deteriorating local

5 cooperation with “efforts to remove undocumented criminal aliens from the United States.” RJN,

6 Ex. N (OIG Memorandum) at 1-2 n.1. The 2016 OIG report advised that “the information we

7 have learned to date during our recent work about the present matter differs significantly from

8 what OIG personnel found nearly 10 years ago” in a 2007 audit, in which federal immigration

9 authorities had “commented favorably to the OIG with respect to cooperation and information

10 flow they received from the seven selected jurisdictions” that were examined. Id. The OIG

11 report focused on California, among other jurisdictions, in reaching its conclusions about the

12 changed state of affairs in 2016. See id. at 13.

13

In the FY 2016 grant cycle, USDOJ under the prior Administration instituted a

14 requirement for grantees to certify compliance with Section 1373. RJN, Ex. C ¶ 55 (California

15 Byrne JAG Award 2016). For the FY 2017 cycle, the Department maintained that condition and

16 added the notice and access conditions, publicly offering a sound explanation for all three

17 conditions. The Department’s “Backgrounder on Grant Requirements” of July 25, 2017, RJN,

18 Ex. O, stated that the conditions have a “goal of increasing information sharing between federal,

19 state, and local law enforcement” so that “federal immigration authorities have the information

20 they need to enforce the law and keep our communities safe.” Id. The Backgrounder also noted

21 that some jurisdictions have “refus[ed] to cooperate with federal immigration authorities in

22 information sharing about illegal aliens who commit crimes,” and stated that the conditions will

23 “prevent the counterproductive use of federal funds for policies that frustrate federal immigration

24 enforcement.” Id. Thus, the three conditions are “common-sense measures,” id., and “even in the

25 absence of evidence, the agency’s predictive judgment (which merits deference) makes entire

26 sense” as “an exercise in logic rather than clairvoyance.” Fox Television, 556 U.S. at 521.

27

Finally, as discussed above in relation to the Spending Clause, immigration enforcement

28 undoubtedly relates to criminal justice. Numerous federal statutes expressly connect these two

Defs’ Motion to Dismiss; Memo.

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1 subjects. See supra text at 13-15. The challenged conditions thus rationally promote interests in

2 “maintain[ing] liaison” among tiers of government “in matters relating to criminal justice,” 34

3 U.S.C. § 10102(a)(2), and comport with the intergovernmental cooperation that Congress

4 contemplates in immigration enforcement. See, e.g., 8 U.S.C. §§ 1226(d), 1357(g), 1373;

5 Arizona, 567 U.S. at 411-12 (“Consultation between federal and state officials is an important

6 feature of the immigration system” and Congress “has encouraged the sharing of information

7 about possible immigration violations.”).

8 II. 9

Plaintiff’s Claim for a Declaration Regarding its Statutes’ Compliance with Section 1373 Should Be Dismissed

10

Aside from the Byrne JAG grant conditions, plaintiff’s Fifth Claim for Relief seeks a

11 declaration that several California statutes “comply with Section 1373” – specifically, the TRUST

12 Act, Cal. Gov’t Code §§ 7282-7282.5; the TRUTH Act, Cal. Gov’t Code §§ 7283-7283.2; the

13 California Values Act, Cal. Gov’t Code §§ 7284-7284.12 (“Values Act”); California Penal Code §§

14 422.93, 679.10, and 679.11; California Code of Civil Procedure § 155; and California Welfare and

15 Institutions Code §§ 827 or 831. See Am. Compl. ¶¶ 145-153. Plaintiff also seeks an order

16 enjoining the defendants from “withholding [funding] and terminating, or disbarring and making

17 ineligible the State and its political subdivisions” under the Byrne JAG Program or any COPS

18 Office program based on Section 1373 and any of those state statutes. Id. at 38. Plaintiff lacks

19 standing, however, to seek a ruling regarding any state statutes other than the Values Act, and its

20 request for a ruling on the Values Act is unripe. Alternatively, if plaintiff’s claim regarding the

21 Values Act were justiciable, the Court should deny on its merits the State’s request for a declaration

22 that the Act does not violate Section 1373.

23

A. Plaintiff’s Request for a Ruling Regarding Compliance

with Section 1373 Is Non-Justiciable

24

Under Article III of the Constitution, the jurisdiction of the federal courts extends only to

25

“Cases” and “Controversies.” U.S. Const. art. III, § 2, cl. 1. Matters outside this rubric are “non-

26

justiciable.” Or. Bureau of Labor & Indus. ex rel. Richardson v. U.S. W. Commc’ns, Inc., 288 F.3d

27

414, 416 (9th Cir. 2002). Two principles of justiciability are involved here: standing and ripeness.

28

Defs’ Motion to Dismiss; Memo.

19

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1 “While standing is concerned with who is a proper party to litigate a particular matter, the doctrines

2 of mootness and ripeness determine when that litigation may occur.” Haw. Cty. Green Party v.

3 Clinton, 14 F. Supp. 2d 1198, 1201 (D. Haw. 1998). Where a plaintiff lacks standing or its claims

4 are unripe, the court lacks jurisdiction, and where jurisdiction is lacking, the plaintiff necessarily

5 cannot show a likelihood of success for purposes of a preliminary injunction. See Pollara v.

6 Radiant Logistics Inc., 2012 WL 12887095, at *5 (C.D. Cal. Sept. 13, 2012) (noting that “standing

7 to bring a claim . . . is a necessary predicate to demonstrate a likelihood of success on the

8 merits”).

9

To satisfy the “irreducible constitutional minimum” of standing, a plaintiff must demon-

10 strate an “injury in fact,” a “fairly traceable” causal connection between the injury and defendant’s

11 conduct, and redressability. Steel Co. v. Citizens for a Better Env’t, 523 U.S. 83, 102-03 (1998)

12 (citation omitted). The injury needed for constitutional standing must be “concrete,” “objective,”

13 and “palpable,” not merely “abstract” or “subjective.” See Whitmore v. Arkansas, 495 U.S. 149,

14 155, 178 (1990); Bigelow v. Virginia, 421 U.S. 809, 816-17, 830 (1975). Additionally, the injury

15 must be “certainly impending” rather than “speculative.” Whitmore, 495 U.S. at 157, 158. In short,

16 for the plaintiff to have standing, “an actual, live controversy must exist between parties with

17 adverse legal interests.” Pollution Denim & Co. v. Pollution Clothing Co., 2009 WL 10672270, at

18 *8 (C.D. Cal. Feb. 9, 2009).

19

Constitutional justiciability also requires that a dispute be ripe for judicial consideration. In

20 a challenge to governmental action, that means the challenged action must have been “formalized

21 and its effects felt in a concrete way by the challenging parties.” Abbott Labs. v. Gardner, 387 U.S.

22 136, 148-49 (1967). In other words, “[a] claim is not ripe for adjudication if it rests upon contin-

23 gent future events that may not occur as anticipated, or indeed may not occur at all.” Texas v.

24 United States, 523 U.S. 296, 300 (1998) (citation omitted). Like the rules of standing described

25 above, these considerations are part of whether the case presents a concrete controversy under

26 Article III. See Wash. Legal Found. v. Legal Found. of Wash., 271 F.3d 835, 850 (9th Cir. 2001)

27 (“The ripeness doctrine is derived from Article III’s case or controversy requirement. It prevents

28 the courts from entangling themselves in abstract disagreements over administrative policies, and

Defs’ Motion to Dismiss; Memo.

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1 also protects the agencies from judicial interference until an administrative decision has been

2 formalized and its effects felt in a concrete way by challenging parties.”) (citation omitted), aff’d

3 sub nom. Brown v. Legal Found. of Wash., 538 U.S. 216 (2003).7

4

Applying these standards here, the plaintiff cannot show the “injury in fact” needed for

5 constitutional standing, and its claims are not constitutionally ripe for judicial review. First,

6 defendants have not withheld or threatened to withhold grant funding based on any state statute

7 other than the Values Act, such that plaintiff lacks standing to seek a ruling regarding any of the

8 other statutes listed. Second, there is no ripe controversy regarding the Values Act itself because

9 defendants have not yet made a final determination regarding whether it violates Section 1373.

10

1. Plaintiff Lacks Standing to Seek a Ruling Regarding

11

Any State Statute Other Than the Values Act

12

OJP wrote to the California agency responsible for administering Byrne JAG grants on

13 April 21, 2017, asking the agency to document its compliance with 8 U.S.C. § 1373. RJN, Ex. L.

14 That letter did not refer to any specific California statutes. On June 29, 2017, the State responded

15 that “there are no state laws of general application that violate Section 1373,” and specifically

16 discussed only two enactments – the TRUST Act and the TRUTH Act – asserting that those statutes

17 do not “create tension with Section 1373.” Id. Ex. M.

18

In its reply of November 1, 2017, OJP stated that the Department of Justice had determined

19 that two provisions of a different enactment – namely, the Values Act – “may violate 8 U.S.C.

20 § 1373, depending on how your jurisdiction interprets and applies them”: specifically, Sections

21 7284.6(a)(1)(A) and 7284.6(a)(1)(C) and (D) of that Act, which prohibit a law enforcement agency

22 from using money or personnel to “[i]nquir[e] into an individual’s immigration status” or to

23 disclose, with certain exceptions, an individual’s release date, personal information (including home

24 address), or “other information.” Id. Ex. N. OJP asked the State to “certify that it interprets and

25 applies [Section 7284.6(a)(1)(A)] to not restrict California officers and employees from requesting

26 information regarding immigration status from federal immigration officers” and that it “interprets

27

7 These considerations do not involve merely “prudential ripeness,” which asks, in contrast,

28

about the “fitness” of the issues presented for judicial review and whether withholding review would subject the parties to “hardship.” See Coons v. Lew, 762 F.3d 891, 900 (9th Cir. 2014).

Defs’ Motion to Dismiss; Memo.

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1 and applies [Section 7284.6(a)(1)(C) and (D)] to not restrict California officers from sharing

2 information regarding immigration status with federal immigration officers, including information

3 regarding release date and home address.” Id.

4

California responded on November 13, 2017, stating (1) that Section 7284.6(a)(1)(A)

5 “prohibits law enforcement officers from asking an individual about his or her immigration status,

6 or from asking for that information from non-governmental third parties, but does not restrict law

7 enforcement from inquiring about an individual’s immigration status from government entities,”

8 and (2) that Section 7284.6(a)(1)(C) and (D) prohibit the disclosure of release dates and home

9 addresses, but purportedly “do not violate Section 1373 because Section 1373 only prohibits

10 restrictions on ‘citizenship or immigration status information,’ not other information.” Id. Ex. O.

11 OJP has not yet responded to California’s letter of November 13; thus, OJP has not yet determined

12 administratively whether the State’s laws comply with Section 1373.

13

Under these circumstances, plaintiff lacks standing to seek a ruling on whether any state

14 laws other than the Values Act violate Section 1373 such that defendants may withhold federal

15 grant funds based on non-compliance. Given that USDOJ has not addressed whether any provi-

16 sions of California law other than the Values Act may violate Section 1373 and thus render Califor-

17 nia ineligible for grant funds, there is no “live controversy” regarding whether any other state

18 statutes comply with Section 1373 and no foreseeable “injury in fact” arising out of defendants’

19 application of any such statutes. See Pollution Denim & Co., 2009 WL 10672270, at *8-10; Steel

20 Co., 523 U.S. at 102-03. Any assumption that defendants might one day withhold grant funds

21 based on any California statute other than the Values Act would be “speculative,” and thus cannot

22 be the basis for standing. See Whitmore, 495 U.S. at 157, 158.

23

2. Plaintiff’s Request for a Ruling Regarding the

24

Values Act Is Constitutionally Unripe

25

Plaintiff’s request for a ruling on whether defendants can withhold grant funds based on the

26 Values Act is also non-justiciable, for two reasons. First, as noted already, OJP has not yet

27 responded to California’s letter regarding the Values Act, and thus has not determined adminis-

28 tratively whether the Act violates Section 1373. RJN, Ex. O. OJP has only stated that portions of

Defs’ Motion to Dismiss; Memo.

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1 the Values Act “may” violate Section 1373, and has not had an opportunity to fully consider the

2 State’s arguments to the contrary. Id. Ex. N. Moreover, OJP’s letter of November 1 stated

3 explicitly that it was only a “preliminary assessment of [California’s] compliance with 8 U.S.C.

4 § 1373” and did not “constitute final agency action.” Id. Ex. N; see 34 U.S.C. § 10223 (stating that

5 OJP’s “determinations, findings, and conclusions shall be final and conclusive upon all

6 applications”). As the district court in Chicago recently explained, “addressing an as-applied

7 challenge to Section 1373 based on [USDOJ’s preliminary determination regarding plaintiff’s

8 compliance] is premature.” Chicago v. Sessions, 2017 WL 5499167, at *1 (N.D. Ill. Nov. 16,

9 2017) (“Chicago II”). Moreover, even after OJP determines whether the Values Act violates

10 Section 1373, the State will have an opportunity to appeal that initial determination

11 administratively. See 34 U.S.C. § 10154; see generally 28 C.F.R. Part 18. OJP could decide, either

12 upon consideration of the State’s letter of November 13, 2017, or upon consideration of any

13 administrative appeal, that the Values Act does not violate Section 1373 and thus that USDOJ will

14 not withhold grant funds on that basis. Therefore, plaintiff’s request for a ruling on whether the

15 Values Act violates Section 1373 “rests upon contingent future events that may not occur as

16 anticipated, or indeed may not occur at all.” Texas, 523 U.S. at 300 (citation omitted).8

17

Additionally, this case is not justiciable because a ruling that the Values Act does not violate

18 Section 1373 would not free the State from legal jeopardy unless all its laws, together with policies

19 implementing those laws, are consistent with Section 1373. That is a fact-intensive inquiry, and is

20 much better handled through the administrative process rather than through the type of ruling

21 sought here. As noted earlier, that process is ongoing and is narrowing the scope of the dispute

22 between the parties. Importantly, if this Court does address the Values Act, that ruling cannot

23 properly immunize the State from liability under Section 1373 if it turns out, in fact, that the State is

24

25

8 Defendants’ alternative argument below that the Court should dismiss plaintiff’s request

for a declaratory judgment regarding the Values Act on its merits does not make this claim ripe,

26 given that OJP must still be permitted to consider the State’s arguments in the administrative

process. Cf. Ardalan v. McHugh, 2014 WL 3846062, at *12 n.10 (N.D. Cal. Aug. 4, 2014) (noting 27 that “the futility exception [to administrative exhaustion] requires a plaintiff [to] show it is certain

28

that the claim will be denied on appeal, or that resort to administrative remedies is clearly useless”) (citations omitted).

Defs’ Motion to Dismiss; Memo.

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1 implementing the Act in a way that violates Section 1373.

2

Under these circumstances, plaintiff’s request for an order regarding whether the Values Act

3 would violate the Section 1373 compliance condition is unripe, in that it “rests upon contingent

4 future events that may not occur as anticipated, or indeed may not occur at all.” Id. Thus, any

5 judicial consideration of this issue should await further developments.9

6

B. The Court Should Dismiss Plaintiff’s Claim for Declaratory

7

Relief Regarding the Values Act on Its Merits

8

Alternatively, even if plaintiff’s request for an order against withholding grant funds based

9 on any California laws were justiciable at this point, this Court should dismiss on its merits

10 plaintiff’s request for an order that none of its laws would violate the Section 1373 compliance

11 condition. As explained already, the only state law that may legitimately be at issue here is the

12 California Values Act, Cal. Gov’t Code §§ 7284-7284.12. Assuming this issue were justiciable,

13 however, the Court should decline to rule that the Values Act is consistent with Section 1373.

14

The Values Act provides, among other things, that California law enforcement agencies

15 shall not use “moneys or personnel to investigate persons . . . for immigration enforcement

16 purposes,” including by “[p]roviding information regarding a person’s release date or responding to

17 requests for notification by providing release dates or other information unless that information is

18 available to the public, or is in response to a notification request from immigration authorities in

19 accordance with Section 7282.5,” or by “[p]roviding personal information, as defined in Section

20 1798.3 of the Civil Code, about an individual, including, but not limited to, the individual’s home

21 address or work address unless that information is available to the public.” Cal. Gov’t Code

22 § 7284.6(a). Section 7282.5 of the Government Code, referenced in the Values Act, sets forth a

23 very specific list of circumstances in which a law enforcement agency is permitted to “cooperate

24 with [federal] immigration officials,” based mostly on whether the individual in question has

25 committed any of certain listed felonies. Id. § 7282.5(b). Section 1798.3 of the Civil Code, also

26

9 In opposing plaintiff’s motion for preliminary injunction, defendants argued that

plaintiff’s request for a ruling regarding the Values Act was unripe for the additional reason that 27 the California Secretary of State had received a request for a voter referendum on the Act. As far

28

as defendants have been able to learn, however, no signatures in support of that referendum have been submitted, and the Values Act is apparently in effect.

Defs’ Motion to Dismiss; Memo.

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1 cited in the Values Act, defines “personal information” as “any information that is maintained by an

2 agency that identifies or describes an individual, including, but not limited to, his or her name,

3 social security number, physical description, home address, home telephone number, education,

4 financial matters, and medical or employment history.” Cal. Civ. Code § 1798.3(a).

5

As described earlier, 8 U.S.C. § 1373 provides, among other things:

6

Notwithstanding any other provision of . . . law, a Federal, State, or local govern-

7

ment entity or official may not prohibit, or in any way restrict, any government

entity or official from sending to, or receiving from, [federal authorities] information

8

regarding the citizenship or immigration status . . . of any individual.

9 8 U.S.C. § 1373(a). The Values Act cannot be squared with this statute.

10

a. Section 1373 forbids a state or local government from prohibiting the exchange of

11 “information regarding” an individual’s immigration status, not merely the individual’s immigra-

12 tion status. Congress’s use of “information regarding” was clearly intended to broaden the scope of

13 the information covered, as demonstrated by comparing Section 1373(a) to Section 1373(c), which

14 uses the different phrase “[immigration] status information.” 8 U.S.C. §1373; see Dean v. United

15 States, 556 U.S. 568, 573 (2009) (“Where Congress includes particular language in one section of a

16 statute but omits it in another section of the same Act, it is generally presumed that Congress acts

17 intentionally and purposely in the disparate inclusion or exclusion.”) (citations omitted). And the

18 meaning of the word “regarding” is quite broad. See Morales v. Trans World Airlines, Inc., 504

19 U.S. 374, 383 (1992) (concluding that “ordinary meaning” of the closely analogous “relating to” is

20 “a broad one – ‘to stand in some relation; to have bearing or concern; to pertain; refer; to bring into

21 association with or connection with’”) (citing Black’s Law Dictionary 1158 (5th ed. 1979)); Davis

22 v. Fenton, 26 F. Supp. 3d 727, 740 (N.D. Ill. 2014) (concluding that “regarding” is “just as broad . .

23 . as ‘arising out of’ and ‘relating to’”). The breadth of this provision is also reinforced by other

24 language that Congress used, such as making clear that no local policy could “in any way restrict”

25 the sharing of such information, reinforcing Congress’s overarching interest in halting policies that

26 might stymie the sharing of information between local law enforcement and immigration

27 authorities. See Bologna v. San Francisco, 121 Cal. Rptr. 3d 406, 414 (Cal. App. 2011) (law

28 “’designed to prevent any State or local law . . . that prohibits or in any way restricts any

Defs’ Motion to Dismiss; Memo.

25

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1 communication between State and local officials and the INS’”) (quoting House report) (emphasis

2 added). Indeed, a contrary reading of Section 1373 would render it largely meaningless, as DHS is

3 already aware of an individual’s legal right to be present in the United States. See Steinle v. San

4 Francisco, 230 F. Supp. 3d 994, 1016 (N.D. Cal. 2017) (explaining that “ICE was already aware of

5 Lopez-Sanchez’s immigration status”).

6

b. The Values Act prevents sharing personal and identifying information that plainly

7 qualifies as information regarding immigration status. First, California law defines personal

8 information very broadly as “any information . . . that identifies or describes an individual” such

9 as name or address. See Cal. Civ. Code § 1798.3. Thus, under the Values Act, state officials would

10 be unable to confirm or reveal the identity of individuals in state custody. But a person’s identity

11 and name are highly relevant to determining immigration status and removability: No such

12 evaluation can be made if the person’s identity is not disclosed. And the person’s address directly

13 relates to whether the person is “lawfully present in the United States,” which Congress described

14 as a component of “immigration status.” 8 U.S.C. § 1357(g)(10)(A) (emphasis added); see Black’s

15 Law Dictionary 1065 (5th ed. 1979) (defining “presence” as “being in a certain place and not

16 elsewhere”). Identity and other personal information are also relevant to many immigration status

17 issues, such as whether the person was born outside the United States, whether the person derived

18 citizenship from a relative, whether the person qualifies for immigrant status under 8 U.S.C.

19 § 1101(a)(15), whether the alien’s place of residence qualifies them as a non-resident visitor, 8

20 U.S.C. § 1227(a)(1)(C); such information also facilitates taking an alien into custody for lawful

21 removal proceedings, id. § 1226(a). The restrictions on sharing personal information cannot be

22 squared with Section 1373.

23

c. The Values Act provisions that prevent the sharing of prisoner release dates also violate

24 Section 1373 because an alien’s release date is information regarding the person’s immigration

25 status. An alien’s release date is directly relevant to when the alien can ultimately be removed from

26 the country. Federal immigration law recognizes the importance of allowing States and localities to

27 impose criminal punishment on individuals who are in this country illegally and commit crimes.

28 Thus, federal law specifies that, except in limited circumstances, DHS “may not remove an alien

Defs’ Motion to Dismiss; Memo.

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1 who is sentenced to imprisonment until the alien is released from imprisonment.” 8 U.S.C.

2 § 1231(a)(4). But that law – and the comity interests that underlie it – render the time of an alien’s

3 release from state custody critical information regarding the alien’s immigration status, as the alien

4 is subject to removal only at the end of that custody period. See id. § 1231(a)(1)(B)(iii) (removal

5 period “begins on . . . the date the alien is released from [state criminal] detention”). Similarly,

6 the statute requiring the detention of criminal aliens specifies that immigration detention for

7 removal proceedings must begin “when the alien is released” from state criminal custody. Id.

8 § 1226(c)(1). The Ninth Circuit has held that this statute requires immigration custody to begin

9 immediately upon release from state criminal custody, underscoring the importance of the release

10 date to the person’s status under the immigration laws. See Preap v. Johnson, 831 F.3d 1193, 1202

11 (9th Cir. 2016) (Section 1226(c) “governs the full life cycle of the criminal aliens’ detention”

12 including “specifying the requirements for taking them into custody”), pet. for cert. filed, No. 16-

13 1363 (May 11, 2017). Other INA provisions also confirm that an alien’s release date is highly

14 relevant to the person’s status under the immigration laws given the relevance of that persons’

15 location within the United States. See 8 U.S.C. § 1357(g)(10)(A) (“immigration status” includes

16 whether individual is “lawfully present in the United States”); id. § 1357(a)(1) (immigration

17 officers “shall have power without warrant . . . to interrogate any alien or person believed to be an

18 alien as to his right to be or to remain in the United States”); id. § 1226(a) (“alien may be arrested

19 and detained” on a warrant). Thus, release date information relates to an individual’s status under

20 the immigration laws because it is a core aspect of the enforcement process Congress designed.

21

In light of all the above, although OJP has made no final agency decision, this Court should

22 decline to hold that the Values Act does not violate Section 1373 or to enter an injunction regarding

23 conformity of California’s laws with Section 1373.

24 IV. Section 1373 Is Consistent with the Tenth Amendment

25

Plaintiff’s final claim is that the Section 1373 compliance condition would violate the Tenth

26 Amendment if the statute were construed as “extending” to the state statutes identified in the

27 Amended Complaint. See Am. Compl. ¶¶ 149-150, 153. The Tenth Amendment provides that

28 “[t]he powers not delegated to the United States by the Constitution, nor prohibited by it to the

Defs’ Motion to Dismiss; Memo.

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1 States, are reserved to the States respectively, or to the people.” It stands for the proposition that

2 “[t]he Federal Government may not compel the States to enact or administer a federal regulatory

3 program” or to “act on the Federal Government’s behalf.” New York, 505 U.S. at 188; see Nat’l

4 Fed’n of Indep. Bus. v. Sebelius, 567 U.S. 519, 620 (2012).

5

As explained above, only one state statute could possibly become legitimately at issue here

6 under the present circumstances: the Values Act. The question under plaintiff’s Tenth Amendment

7 claim, therefore, is whether applying the Section 1373 compliance condition in such a way that the

8 Values Act violates the condition would “compel the State[] to enact or administer a federal regula-

9 tory program” or to “act on the Federal Government’s behalf.” Id. at 575, 620. For several reasons,

10 it would not.

11

First, the dispute here does not involve a federal statutory mandate that directly regulates

12 California, but rather a condition on receipt of federal funds that the State and its subdivisions are

13 free to accept or reject. Thus, the relevant question here is not whether Section 1373, as an

14 independent statutory obligation, would violate the Tenth Amendment. Instead, the only pertinent

15 question is whether conditioning the receipt of federal funds on compliance with Section 1373 is a

16 valid exercise of the spending power – which, as discussed above, it is. In this context, it is well-

17 settled that the federal government “may offer funds to the States, and may condition those offers

18 on compliance with specified conditions.” Id. at 537; cf. Envtl. Def. Ctr., Inc. v. EPA, 344 F.3d 832,

19 847 (9th Cir. 2003) (“[A]s long as the alternative to implementing a federal regulatory program

20 does not offend the Constitution’s guarantees of federalism, the fact that the alternative is difficult,

21 expensive or otherwise unappealing is insufficient to establish a Tenth Amendment violation.”)

22 (citation omitted). In effect, by requesting funds from the Federal Government, the State acts

23 voluntarily and waives any Tenth Amendment concerns.

24

Second, the purpose and effect of Section 1373 and the challenged grant condition are to

25 further the express goals of the INA, not to “commandeer” state officials. As noted earlier, the INA

26 provides that a federal immigration officer “shall have power without warrant . . . to interrogate

27 any alien or person believed to be an alien as to his right to be or to remain in the United States.” 8

28 U.S.C. § 1357(a)(1). The INA also provides that certain classes of aliens, including certain criminal

Defs’ Motion to Dismiss; Memo.

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1 aliens, shall be removed from the United States upon the order of the Attorney General or the

2 Secretary of Homeland Security, see, e.g., id. §§ 1227(a), 1228. Federal officials cannot carry out

3 these duties without knowing where those persons are located. Indeed, the legislative history of

4 Section 1373 indicates that the statute was intended to counteract passive resistance to sharing

5 information. See, e.g., S. Rep. No. 104-249, at 19-20 (1996) (noting that “[t]he acquisition,

6 maintenance, and exchange of immigration-related information by State and local agencies is

7 consistent with, and potentially of considerable assistance to, the Federal regulation of immigration

8 and the achieving of the purposes and objectives of the [INA]”).

9

Third, even if an outright mandate rather than a grant condition were involved here, a mere

10 requirement not to prohibit individuals from providing information would not violate the Tenth

11 Amendment. The courts have rejected Tenth Amendment challenges to a number of federal

12 statutes that regulated the handling of information. For example, in Reno v. Condon, the Supreme

13 Court rejected a challenge to a federal law regarding information on motor vehicle operators, which

14 both required States to disclose information in certain circumstances and prohibited its disclosure in

15 other circumstances. 528 U.S. 141, 143-46, 149-150 (2000). Similarly, in Freilich v. Upper

16 Chesapeake Health, Inc., the Fourth Circuit rejected a challenge to a federal statute that required

17 health care entities to provide certain information regarding physicians to the State Board of Medi-

18 cal Examiners, and required state boards to forward that information to a federal database. 313 F.3d

19 205, 213-14 (4th Cir. 2002); see 42 U.S.C. §§ 11133, 11134. In rejecting that claim, the court

20 wrote that the federal statute “does not commandeer the state legislature or executive” and “does

21 not compel states to implement a federal regulatory program either. . . . All that the [statute]

22 requires of states is the forwarding of information.” 313 F.3d at 213-14. Further, the Second

23 Circuit has rejected a Tenth Amendment facial challenge to Section 1373 of the kind the State

24 raises here, noting that the Tenth Amendment does not give States and their subdivisions “an

25 untrammeled right to forbid all voluntary cooperation by state or local officials with particular

26 federal programs,” particularly in the information sharing context. City of New York v. United

27 States, 179 F.3d 29, 34-35 (2d Cir. 1999); see Printz v. United States, 521 U.S. 898, 918 (1997)

28 (contrasting federal statutes that “require only the provision of information to the Federal

Defs’ Motion to Dismiss; Memo.

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1 Government” with those that “force[] participation of the States’ executive in the actual admin-

2 istration of a federal program”); Freilich v. Bd. of Directors, 142 F. Supp. 2d 679, 697 (D. Md.

3 2001) (“This Court has found no case” holding that a statutory command to report information for

4 a federal data bank “commandeers the state.”); accord Chicago I, 264 F. Supp. 3d at 946-47.

5

Fourth, contrary to plaintiff’s allegation, the Section 1373 condition – again, even assuming

6 it were more than a mere grant condition – does not “commandeer[] the State and its political

7 subdivisions by directing their personnel how to act and handle data under State and local control in

8 order to advance a federal program.” See Am. Compl. ¶ 150. For this proposition, plaintiff cites

9 Printz v. United States, 521 U.S. 898, 918 (1997), but that decision actually undercuts the State’s

10 claim. There, the Court struck down certain provisions of the Brady Act, which required local law

11 enforcement officers to conduct background checks on prospective handgun purchasers. The Act

12 required much more than the forwarding of information, compelling officers to “make a reasonable

13 effort to ascertain within 5 business days whether receipt or possession [of a handgun] would be in

14 violation of the law, including research in whatever State and local recordkeeping systems are

15 available and in a national system designated by the Attorney General,” and to provide, upon

16 request, a written statement of the reasons for any contrary determination. Id. at 903 (citation

17 omitted). Other federal laws requiring action by state or local officials were cited in support of the

18 constitutionality of those provisions, but the Court rejected the relevance of those laws, observing

19 that some were “connected to federal funding measures, and [could] perhaps be more accurately

20 described as conditions upon the grant of federal funding than as mandates to the States” and that

21 others “require[d] only the provision of information to the Federal Government” and thus did not

22 “involve the precise issue before us here, which is the forced participation of the States’ executive

23 in the actual administration of a federal program.” Id. at 917-18. Unlike the Brady Act, Section

24 1373 only involves the exchange of information with federal authorities, and it is only a prohibition

25 on policies that bar sharing information, not an affirmative obligation to share information.

26

CONCLUSION

27

Accordingly, the Court should dismiss plaintiff’s First Amended Complaint and all of its

28 claims.

Defs’ Motion to Dismiss; Memo.

30

No. 3:17-cv-04701-WHO

Case 3:17-cv-04701-WHO Document 77 Filed 01/16/18 Page 40 of 40

1 Dated: January 16, 2018 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
Defs’ Motion to Dismiss; Memo. No. 3:17-cv-04701-WHO

Respectfully submitted, CHAD A. READLER Acting Assistant Attorney General BRIAN STRETCH United States Attorney JOHN R. TYLER Assistant Director /s/ W. Scott Simpson W. SCOTT SIMPSON (Va. Bar #27487) ANTONIA KONKOLY Trial Attorney Attorneys, Department of Justice Civil Division, Room 7210 Federal Programs Branch 20 Massachusetts Avenue, NW Washington, D.C. 20530 Telephone: (202) 514-3495 Facsimile: (202) 616-8470 E-mail: scott.simpson@usdoj.gov COUNSEL FOR DEFENDANTS JEFFERSON B. SESSIONS III, Attorney General of the United States; ALAN R. HANSON, Principal Deputy Assistant Attorney General; and U.S. DEPARTMENT OF JUSTICE
31

 
 Case 3:17-cv-04701-WHO Document 80 Filed 01/30/18 Page 1 of 41

1 XAVIER BECERRA Attorney General of California
2 ANGELA SIERRA Senior Assistant Attorney General
3 SATOSHI YANAI Supervising Deputy Attorney General
4 SARAH E. BELTON LISA C. EHRLICH
5 LEE SHERMAN (SBN 272271) Deputy Attorneys General
6 300 S. Spring St., Suite 1702 Los Angeles, CA 90013
7 Telephone: (213) 269-6404 Fax: (213) 879-7605
8 E-mail: Lee.Sherman@doj.ca.gov Attorneys for Plaintiff State of California
9

10

IN THE UNITED STATES DISTRICT COURT

11

FOR THE NORTHERN DISTRICT OF CALIFORNIA

12

SAN FRANCISCO DIVISION

13

14

STATE OF CALIFORNIA, ex rel. XAVIER Case No. 17-cv-4701

15 BECERRA, in his official capacity as

Attorney General of the State of California,

16

Plaintiff, PLAINTIFF STATE OF CALIFORNIA’S

17

OPPOSITION TO DEFENDANTS’

v.

MOTION TO DISMISS

18

Date:

February 28, 2018

19 JEFFERSON B. SESSIONS, in his official Time:

2:00 p.m.

capacity as Attorney General of the United Dept:

2

20 States; ALAN R. HANSON, in his official Judge:

Honorable William H. Orrick

capacity as Principal Deputy Assistant

Trial Date: December 10, 2018

21 Attorney General; UNITED STATES

Action Filed: August 14, 2017

DEPARTMENT OF JUSTICE; and DOES

22 1-100,

23

Defendants.

24

25

26

27

28

Plaintiff’s Opposition to Defendants’ Motion to Dismiss (17-cv-4701)

Case 3:17-cv-04701-WHO Document 80 Filed 01/30/18 Page 2 of 41

1

TABLE OF CONTENTS

2

Page

3 Introduction ..................................................................................................................................... 1

4 Developments Since Filing of the FAC .......................................................................................... 1 Legal Standard ................................................................................................................................ 4
5 Legal Arguments ............................................................................................................................. 5

6

I. The JAG Access and Notification Conditions Violate the Separation of

Powers and Exceed Congressional Authority (Causes of Action 1 And 3) ............ 5

7

A. The Access and Notification Conditions Are Inconsistent with the

8

JAG Authorizing Statute ............................................................................. 5

B. Section 10102 Does Not Provide USDOJ with the Authority to

9

Impose the Access and Notification Conditions ......................................... 7

10

II. The JAG Immigration Enforcement Conditions Violate the Spending Clause (Causes of Action 2 And 3)....................................................................... 10

11

A. There is an Insufficient Nexus Between the JAG Immigration

Enforcement Conditions and the Federal Purpose of JAG ....................... 10

12

B. The Access and Notification Conditions Provide the State with

13

Inadequate Notice of What the Conditions Require ................................. 12

III. The JAG Immigration Enforcement Conditions Are Arbitrary and

14

Capricious in Violation of The APA (Cause of Action 4) .................................... 13

15

A. Defendants’ Imposition of the JAG Immigration Enforcement Conditions is Final Agency Action that is Judicially Reviewable ............ 13

16

B. The JAG Immigration Enforcement Conditions Are Arbitrary and

Capricious ................................................................................................. 15

17

IV. The State is Entitled to a Declaratory Judgment That the Identified State

18

Laws Comply with Section 1373 (Cause of Action 5) ......................................... 17

A. The State’s Declaratory Judgment Claim is Justiciable............................ 17

19

1. The State Has Standing to Seek a Declaration that the

20

Amended TRUST Act, TRUTH Act, and State Confidentiality Statutes Comply with Section 1373..................... 17

21

2. The State’s Request for a Declaration that the Values Act

Complies with Section 1373 is Ripe ............................................. 19

22

B. The Values Act Complies with Section 1373 ........................................... 23

23

C. Enforcing Section 1373 Against the Values Act Would Constitute

Unconstitutional Commandeering ............................................................ 27

24 Conclusion .................................................................................................................................... 30

25

26

27

28
i Plaintiff’s Opposition to Defendants’ Motion to Dismiss (17-cv-4701)

Case 3:17-cv-04701-WHO Document 80 Filed 01/30/18 Page 3 of 41

1

TABLE OF AUTHORITIES

2 3 FEDERAL CASES

Page

4 Abbott Labs v. Gardner

5

387 U.S. 136 (1967) ..................................................................................................................20

6 Amalgamated Transit Union v. Skinner 894 F.2d 1362 (D.C. Cir. 1990) ..................................................................................................7

7 Appalachian Power Co. v. E.P.A.

8

208 F.3d 1015 (D.C. Cir. 2000) ................................................................................................14

9 Arizona v. United States 567 U.S. 387 (2012) ..................................................................................................................11
10

11

Arlington Cent. Sch. Dist. Bd. of Educ. v. Murphy 548 U.S. 291 (2006) ....................................................................................................5, 9, 10, 24

12 Ashcroft v. Iqbal

13

556 U.S. 662 (2009) ....................................................................................................................4

14 Babbitt v. Farm Workers 442 U.S. 289 (1979) ..................................................................................................................20
15

Bell Atl. Corp. v. Twombly

16

550 U.S. 544 (2007) ....................................................................................................................4

17 Bennett v. Spear

18

520 U.S. 154 (1997) ..................................................................................................................14

19 Bond v. United States

134 S. Ct. 2077 (2014) ..........................................................................................................5, 25 20

Branch v. Tunnell

21

14 F.3d 449 (9th Cir. 1994).........................................................................................................4

22 Cape May Greene, Inc. v. Warren

23

698 F.2d 179 (3rd Cir. 1983) ....................................................................................................15

24 Chamber of Commerce of U.S. v. Whiting

563 U.S. 582 (2011) ..................................................................................................................23

25

City of Arlington, Tex. v. FCC

26

569 U.S. 290 (2013) ....................................................................................................................5

27 City of Chicago v. Sessions

28

264 F. Supp. 3d 933 (N.D. Ill. 2017) ....................................................................................3, 30

ii

Plaintiff’s Opposition to Defendants’ Motion to Dismiss (17-cv-4701)

Case 3:17-cv-04701-WHO Document 80 Filed 01/30/18 Page 4 of 41

1

TABLE OF AUTHORITIES

(continued)

2

Page

3 City of Chicago v. Sessions No. 17-cv-5720, 2017 WL 4399167 (N.D. Ill. Nov. 16, 2017) ................................................21
4

5

City of Houston v. Hill 482 U.S. 451 (1987) ..................................................................................................................20

6 City of New York v. United States

7

179 F.3d 29 (2d Cir. 1999)..................................................................................................29, 30

8 City of Philadelphia v. Sessions

No. 17-cv-3894, --- F.Supp. 3d --- (E.D. Pa. Nov 15, 2017) ......................................4, 9, 11, 18 9

Clinton v. City of New York

10

524 U.S. 417 (1998) ....................................................................................................................7

11 Columbia Riverkeeper v. U.S. Coast Guard

12

761 F.3d 1084 (9th Cir. 2014)...................................................................................................14

13 Coons v. Lew

762 F.3d 891 (9th Cir. 2014).....................................................................................................20 14

Cty. of Santa Clara v. Trump

15

No. 17-cv-574, --- F. Supp. 3d --- (N.D. Cal. Jul. 20, 2017) ....................................................17

16 Cty. of Santa Clara v. Trump

17

250 F. Supp. 3d 497 (N.D. Cal. 2017) .............................................................................. passim

18 Custis v. United States

511 U.S. 485 (1994) ..................................................................................................................26

19

Darby v. Cisneros

20

509 U.S. 137 (1993) ..................................................................................................................22

21 Encino Motorcars, LLC v. Navarro

22

136 S. Ct. 2117 (2016) ..............................................................................................................16

23 Exxon Mobil Corp. v. Allapattah Servs. 545 U.S. 546 (2008) ..................................................................................................................24

24 FCC v. Fox Television Stations, Inc.

25

556 U.S. 502 (2009) ..................................................................................................................16

26 FDA v. Brown & Williamson Tobacco Corp.

27

529 U.S. 120 (2000) ....................................................................................................................9

28 iii
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Case 3:17-cv-04701-WHO Document 80 Filed 01/30/18 Page 5 of 41

1

TABLE OF AUTHORITIES

(continued)

2

Page

3 Freedom to Travel Campaign v. Newcomb 82 F.3d 1431 (9th Cir. 1996).....................................................................................................22
4

5

Freilich v. Upper Chesapeake Health, Inc. 313 F.3d 205 (4th Cir. 2002).....................................................................................................29

6 Gonzales v. Oregon

7

546 U.S. 243 (2006) ....................................................................................................................8

8 Gregory v. Ashcroft

501 U.S. 452 (1991) ..............................................................................................................5, 25 9

Haw. Newspaper Agency v. Bronster

10

103 F.3d 742 (9th Cir. 1996).....................................................................................................23

11 Hodges v. Shalala

12

121 F. Supp. 2d 854 (D.S.C. 2000) ...........................................................................................22

13 Immigrant Assistance Project of the L.A. Cty. Fed’n of Labor (AFL-CIO) v. INS

306 F.3d 842 (9th Cir. 2002).....................................................................................................22 14

In re Aiken Cty.

15

725 F.3d 255 (D.C. Cir. 2013) ..................................................................................................14

16 In re Dynamic Random Access Memory Antitrust Litig. v. Micron Tech., Inc.

17

546 F.3d 981 (9th Cir. 2008).......................................................................................................4

18 Jama v. ICE

543 U.S. 335 (2005) ....................................................................................................................6

19

Koog v. United States

20

79 F.3d 452 (5th Cir. 1996).......................................................................................................28

21 Lee v. City of Los Angeles

22

250 F.3d 668 (9th Cir. 2001).......................................................................................................4

23 Lujan v. Defs. of Wildlife 504 U.S. 555 (1992) ....................................................................................................................4

24 Maldonado v. Morales

25

556 F.3d 1037 (9th Cir. 2009)...................................................................................................20

26 Massachusetts v. United States

27

435 U.S. 444 (1978) ..................................................................................................................10

28 iv
Plaintiff’s Opposition to Defendants’ Motion to Dismiss (17-cv-4701)

Case 3:17-cv-04701-WHO Document 80 Filed 01/30/18 Page 6 of 41

1

TABLE OF AUTHORITIES

(continued)

2

Page

3 Maya v. Centex Corp. 658 F.3d 1060 (9th Cir. 2011).....................................................................................................4
4

5

Mayweathers v. Newland 314 F.3d 1062 (9th Cir. 2002)...................................................................................................11

6 McCarthy v. Madigan

7

503 U.S. 140 (1992) ..................................................................................................................22

8 McDermott Int’l, Inc. v. Wilander

498 U.S. 337 (1991) ....................................................................................................................8 9

MedImmune, Inc. v. Genentech, Inc.

10

549 U.S. 118 (2007) ............................................................................................................19, 23

11 Medtronic, Inc. v. Mirowski Family Ventures, LLC

12

134 S. Ct. 843 (2014) ................................................................................................................23

13 Md. Cas. Co. v. Pac. Coal & Oil Co.

312 U.S. 270 (1941) ..................................................................................................................17 14

Mont. Envtl. Info. Ctr. v. Stone-Manning

15

766 F.3d 1184 (9th Cir. 2014).............................................................................................19, 20

16 Motor Vehicle Mfrs. Ass’n of the U.S. v. State Farm Mut. Auto. Ins. Co.

17

463 U.S. 29 (1983) ..............................................................................................................15, 16

18 Nat’l Cable & Telecomms. Ass’n v. Brand X Internet Servs.

545 U.S. 967 (2005) ..................................................................................................................16

19

Nat’l Lead Co. v. United States

20

252 U.S. 140 (1920) ....................................................................................................................8

21 New York v. United States

22

505 U.S. 144 (1992) ..................................................................................................................27

23 Nw. Envtl. Def. Ctr. v. Bonneville Power Admin. 477 F.3d 668 (9th Cir. 2007).....................................................................................................16

24 O’Shea v. Littleton

25

414 U.S. 488 (1974) ............................................................................................................17, 19

26 Ohio ex rel. Celebrezze v. U.S. Dep’t of Transp.

27

766 F.2d 228 (6th Cir. 1985).....................................................................................................18

28 v
Plaintiff’s Opposition to Defendants’ Motion to Dismiss (17-cv-4701)

Case 3:17-cv-04701-WHO Document 80 Filed 01/30/18 Page 7 of 41

1

TABLE OF AUTHORITIES

(continued)

2

Page

3 Ohio Forestry Ass’n, Inc. v. Sierra Club 523 U.S. 726 (1998) ..................................................................................................................21
4

5

Organized Vill. of Kake v. U.S. Dep’t of Agric. 795 F.3d 956 (9th Cir. 2015).....................................................................................................19

6 Pac. Gas & Elec. Co. v. State Energy Res. Conservation & Dev. Comm’n

7

461 U.S. 190 (1983) ............................................................................................................21, 24

8 Pennhurst State Sch. & Hosp. v. Halderman

451 U.S. 1 (1981) ..............................................................................................................5, 9, 10 9

Printz v. United States

10

521 U.S. 898 (1997) ................................................................................................27, 28, 29, 30

11 Providence Yakima Med. Ctr. v. Sebelius

12

611 F.3d 1181 (9th Cir. 2010)...................................................................................................16

13 Reno v. Catholic Soc. Servs.

509 U.S. 43 (1993) (O’Connor, J., concurring) ........................................................................22 14

Reno v. Condon

15

528 U.S. 141 (2000) ..................................................................................................................29

16 Shroyer v. New Cingular Wireless Servs.

17

622 F.3d 1035 (9th Cir. 2010).....................................................................................................4

18 South Dakota v. Dole

483 U.S. 203 (1987) ............................................................................................................10, 11

19

State Highway Comm’n of Mo. v. Volpe

20

479 F.2d 1099 (8th Cir. 1973).....................................................................................................6

21 Steinle v. City & Cty. of San Francisco

22

230 F. Supp. 3d 994 (N.D. Cal. 2017) ..........................................................................24, 25, 26

23 Stone v. INS 514 U.S. 386 (1995) ....................................................................................................................7

24 Susan B. Anthony List v. Driehaus

25

134 S. Ct. 2334 (2014) ..................................................................................................18, 19, 20

26 Texas v. United States

27

201 F. Supp. 3d 810 (N.D. Tex. 2016)....................................................................14, 15, 18, 21

28 vi
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Case 3:17-cv-04701-WHO Document 80 Filed 01/30/18 Page 8 of 41

1

TABLE OF AUTHORITIES

(continued)

2

Page

3 Texas v. United States No. 15-cv-151, 2016 WL 4138632 (N.D. Tex. Aug. 4, 2016)..................................................11
4

5

Thomas v. Anchorage Equal Rights Comm’n 220 F.3d 1134 (9th Cir. 2000).............................................................................................19, 20

6 Train v. City of New York

7

420 U.S. 35 (1975) ......................................................................................................................6

8 U.S. Army Corps of Eng’rs v. Hawkes Co., Inc.

136 S. Ct. 1807 (2016) ........................................................................................................15, 18 9

United States v. Bass

10

404 U.S. 336 (1971) ..................................................................................................................25

11 United States v. Morrison

12

529 U.S. 598 (2000) ..................................................................................................................28

13 United States v. Quintana

623 F.3d 1237 (8th Cir. 2010)...................................................................................................24 14

United States v. Texas

15

523 U.S. 296 (1998) ..................................................................................................................21

16 Va. ex rel. Cuccinelli v. Sebelius

17

656 F.3d 253 (4th Cir. 2011).....................................................................................................19

18 Virginia v. Am. Booksellers Ass’n, Inc.

484 U.S. 383 (1988) ..................................................................................................................17

19

Warth v. Seldin

20

422 U.S. 490 (1975) ....................................................................................................................4

21 Wash. Legal Found. v. Legal Found. of Wash.

22

271 F.3d 835 (9th Cir. 2001).....................................................................................................21

23 Whitman v. Am. Trucking Ass’ns 531 U.S. 457 (2001) ....................................................................................................................7

24 Will v. Mich. Dep’t of State Police

25

491 U.S. 58 (1989) ................................................................................................................5, 25

26 Youngstown Sheet & Tube Co. v. Sawyer

27

343 U.S. 579 (1952) ....................................................................................................................5

28 vii
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Case 3:17-cv-04701-WHO Document 80 Filed 01/30/18 Page 9 of 41

1 2 3 STATE CASE

TABLE OF AUTHORITIES (continued)

Page

4 Bologna v. City & Cty. of San Francisco

5

192 Cal. App. 4th 429 (Cal. Ct. App. 2011) .............................................................................24

6 FEDERAL STATUTES

7 8 U.S.C. § 1182..................................................................................................................................12, 25

8

§ 1202........................................................................................................................................12

§ 1225........................................................................................................................................26

9

§ 1226........................................................................................................................................26

10

§ 1227........................................................................................................................................12 § 1231........................................................................................................................................26

11

§ 1357........................................................................................................................................24

§ 1360........................................................................................................................................26

12

§ 1367........................................................................................................................................26

§ 1373................................................................................................................................ passim 13

18 U.S.C. § 2721 .............................................................................................................................29 14

15 20 U.S.C. § 1416 ...............................................................................................................................8

16 28 U.S.C. § 2201 .............................................................................................................................23

17 34 U.S.C. § 10102................................................................................................................................7, 8, 9

18

§ 10151-58 ............................................................................................................................6, 10

§ 10152......................................................................................................................................11

19

§ 10153....................................................................................................................................6, 9

20

§ 10156........................................................................................................................................6 § 10228........................................................................................................................................9

21

§ 10251......................................................................................................................................11

§ 20927........................................................................................................................................8

22

§ 30307........................................................................................................................................9

23 STATE STATUTES

24 Cal. Civ. Proc. Code § 155................................................................................................................2

25 Cal. Gov’t Code

26

§ 7282 et seq. ..............................................................................................................................3

§ 7282.5.....................................................................................................................................17

27

28 viii
Plaintiff’s Opposition to Defendants’ Motion to Dismiss (17-cv-4701)

Case 3:17-cv-04701-WHO Document 80 Filed 01/30/18 Page 10 of 41

1

TABLE OF AUTHORITIES

(continued)

2

Page

3

§ 7283 et seq. ..............................................................................................................................2

§ 7284.6.....................................................................................................................2, 24, 26, 28 4

5

California Penal Code § 422.93.......................................................................................................................................2

6

§ 679.10.......................................................................................................................................2

§ 679.11.......................................................................................................................................2

7 California Welfare and Institutions Code

8

§ 827............................................................................................................................................2

§ 831............................................................................................................................................2 9

10 CONSTITUTIONAL PROVISIONS

11 U.S. Const., art. I, § 8, c. 1 ................................................................................................................5

12 OTHER AUTHORITIES

13 2 C.F.R. § 200.207 ............................................................................................................................8

14 7 C.F.R. § 550.10 (removed Oct. 11, 2016)......................................................................................8

15 28 C.F.R.

§ 18.5...................................................................................................................................21, 22

16

§ 66.12 (removed Dec. 19, 2014)................................................................................................7

17 34 C.F.R. § 80.12 (removed Dec. 19, 2014) .....................................................................................8

18 45 C.F.R. § 74.14 (removed Dec. 19, 2014) .....................................................................................8

19 Anti-Drug Abuse Act of 1988, Pub. L. No. 100-690, 102 Stat. 4181 (1988) ................................10

20

Dep’t of Commerce, Justice, and State, the Judiciary, and Related Agencies

21

Appropriations Act of 1996, Pub. L. No. 104-134, 110 Stat. 1321 (1996)...............................11

22 Illegal Immigrant Reform and Immigrant Responsibility Act of 1996, Pub. L. No.

23

104-208, 110 Stat. 3009-546 .....................................................................................................26

24 Immigration Act of 1990, Pub. L. No. 101-649, 104 Stat. 4978 (1990)...........................................6

25 Miscellaneous and Technical Immigration and Naturalization Amendments of 1991, Pub. L. No. 102-232, 105 Stat. 1733 (1991) ....................................................................6
26

27

28 ix
Plaintiff’s Opposition to Defendants’ Motion to Dismiss (17-cv-4701)

Case 3:17-cv-04701-WHO Document 80 Filed 01/30/18 Page 11 of 41

1

INTRODUCTION

2

For the past year, the Trump Administration has attempted to rely on extra-statutory

3 authority to coerce state and local jurisdictions into foregoing laws and policies they determined

4 best protect public safety in order to satisfy the Administration’s immigration enforcement

5 demands. In its First Amended Complaint (“FAC”), Plaintiff State of California (“the State”) 6 challenges the unprecedented, unconstitutional, and unlawful actions jeopardizing the State’s 7 ability to receive Edward Byrne Memorial Justice Assistance Grants (“JAG”) and Community

8 Oriented Policing Services (“COPS”) grants. First, Defendants improperly added three 9 immigration enforcement conditions, at least two of which are without any statutory authority, to 10 the $28.3 million in JAG formula grants that the State and its local jurisdictions are authorized by 11 statute to receive this fiscal year.1 Second, to justify withholding funding from the State on the

12 basis of the third condition, Defendants transformed a narrow statute, 8 U.S.C. § 1373 (“Section 13 1373”), which prohibits restrictions on the exchange of immigration and citizenship status 14 information, into a sweeping mandate requiring state and local jurisdictions to allow the 15 disclosure of essentially all information about their residents to federal immigration authorities.2 16 In seeking to dismiss all of the State’s claims, ECF No. 77 (“MTD”), Defendants ask this Court to 17 disregard two federal courts that have found two of these immigration enforcement conditions are

18 likely to be unconstitutional, and ignore a Northern District of California decision, which read 19 Section 1373 narrowly. Defendants’ motion should be denied in full.

20

DEVELOPMENTS SINCE FILING OF THE FAC

21

The State filed its Amended Complaint on October 13, 2017. On October 31, the State

22 moved to preliminarily enjoin Defendants from enforcing the Section 1373 Condition against the

23 1 Those conditions require jurisdictions to adopt an affirmative “statute,” “rule,” “regulation,” “policy,” or “practice” that is “designed to ensure”: (a) Department of Homeland Security
24 (“DHS”) agents access to detention facilities to interview inmates who are “aliens” or believed to be “aliens” (“the Access Condition”); and (b) provide 48 hours advance notice to DHS regarding
25 the scheduled release date of an “alien” upon request (“the Notification Condition”). FAC ¶ 84. 2 The third condition requires jurisdictions to certify compliance with Section 1373 under penalty
26 of perjury (“the Section 1373 Condition,” and with the Access and Notification Conditions, “the Immigration Enforcement Conditions”). FAC ¶ 77. Even if the Court determines that the JAG
27 Section 1373 Condition is unlawful, the State additionally requests declaratory relief, contra MTD at 2, because compliance with Section 1373 is also a condition for COPS. FAC ¶ 100.
28
1
Plaintiff’s Opposition to Defendants’ Motion to Dismiss (17-cv-4701)

Case 3:17-cv-04701-WHO Document 80 Filed 01/30/18 Page 12 of 41

1 State on account of the TRUTH Act, California Government Code section 7283 et seq., and the

2 State’s Confidentiality Statutes.3 ECF No. 17. The next day, Defendants sent the Board of State

3 and Community Corrections (“BSCC”), the entity that receives the State’s share of JAG funds, a

4 preliminary non-compliance letter (“Alleged Non-Compliance Letter”) asserting that three

5 provisions of the recently adopted California Values Act, Government Code section 7284 et seq.,

6 may “violate 8 U.S.C. § 1373, depending on how [the State] interprets and applies them.” Defs.’

7 Req. for Judicial Notice (“Defs. RJN”), Ex. N at 1. Those provisions: (i) generally prohibit

8 inquiries into an individual’s immigration status (Cal. Gov’t Code § 7284.6(a)(1)(A)); (ii) define

9 the circumstances under which law enforcement may respond to immigration authorities’ requests

10 for release dates (id. § 7284.6(a)(1)(C)); and (iii) prohibit the sharing of “personal information”

11 for immigration enforcement purposes when that information is not available to the public (id. §

12 7284.6(a)(1)(D)). Defs. RJN, Ex. N at 1-2. As to the first provision, Defendants said that to

13 comply with Section 1373, the State must certify it interprets that provision as “not restrict[ing]

14 California officers and employees from requesting information regarding immigration status from

15 federal immigration officers.” Id. at 2. For the notification request and personal information

16 provisions to comply with Section 1373, Defendants said the State must certify it “interprets and

17 applies these provisions to not restrict California officers from sharing information . . . regarding

18 release date[s] and home address[es].” Id. at 1. If the State could not so “certify,” then

19 “[USDOJ] has determined that these provisions violate [Section 1373].” Id. at 1-2. Defendants

20 further “reserve[d] [their] right to identify additional bases of potential violations.” Id. at 2.

21

In total, since October 2017, Defendants have sent similar letters to 35 jurisdictions

22 challenging their compliance with Section 1373, including to two jurisdictions, in part, on the

23 basis of adopting laws or policies similar to California’s Confidentiality Statutes. FAC ¶ 116;

24 Defs. RJN, Ex. N; Pl.’s Req. for Judicial Notice (“Pl. RJN”), Exs. A, B, and C.

25

On November 13, BSCC responded to the letter it received, and certified that the Values

26 Act does not restrict law enforcement from inquiring about an individual’s immigration status

27 3 “The State’s Confidentiality Statutes” as defined here, are: California Penal Code sections 422.93, 679.10, 679.11; California Welfare and Institutions Code sections 827 and 831; and
28 California Code of Civil Procedure section 155. 2
Plaintiff’s Opposition to Defendants’ Motion to Dismiss (17-cv-4701)

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1 with other governmental entities. Defs. RJN, Ex. O at 1. BSCC could not provide the requested

2 certification as to the other two provisions, and informed Defendants that the Values Act

3 regulates the sharing of release date information and home addresses because that information is

4 not covered by Section 1373. Id. at 2. On January 24, 2018, Defendants responded that they still

5 have concerns about the State’s compliance with Section 1373, and asked the BSCC to produce

6 by February 23, under threat of subpoena, “orders, directives, instructions, or guidance to your

7 law enforcement employees” about communicating with USDOJ, DHS, and Immigration and

8 Customs Enforcement (“ICE”). Pl. RJN, Ex. D.

9

In the meantime, on November 29, Defendants awarded the California Department of

10 Justice (“CalDOJ”) a $1 million COPS grant that they said CalDOJ will be unable to “draw

11 down” while Defendants “inquir[e] . . . whether [CalDOJ] complies with 8 U.S.C. § 1373.” Pl.

12 RJN, Ex. E at 20. Also, when the Values Act went into effect, ICE Acting Director Thomas

13 Homan chastised California, calling for USDOJ to withhold funding, and “charge” elected

14 officials with crimes, for those jurisdictions that do not meet the Administration’s immigration

15 enforcement demands. Pl. RJN, Ex. F at 2. DHS Secretary Kirstjen Nielsen has since confirmed

16 in Congressional testimony that Defendant USDOJ is “reviewing” ways to charge state and local

17 officials as the ICE Acting Director suggested. Pl. RJN, Ex. G at 102-03.

18

After Defendants sent the Alleged Non-Compliance Letter, on November 7, the State filed

19 an amended motion for preliminary injunction to prevent Defendants from enforcing the Section

20 1373 Conditions against the State on account of the Values Act and the Amended TRUST Act,

21 California Government Code section 7282 et seq., as well as the TRUTH Act and the State’s

22 Confidentiality Statutes. ECF No. 26. The Court heard the motion on December 13, 2017, and

23 took the parties’ arguments under submission. ECF No. 73. On January 18, 2018, the State

24 alerted the Court that the Values Act became effective on January 4, 2018. ECF No. 78.

25

The State has not yet moved to enjoin the Access and Notification Conditions because those

26 conditions are currently subject to a nationwide preliminary injunction after the Northern District

27 of Illinois determined that Chicago was likely to succeed on its claims that Defendants exceeded

28 their statutory authority in imposing them. City of Chicago v. Sessions, 264 F. Supp. 3d 933, 951 3
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1 (N.D. Ill. 2017), No. 17-2991 (7th Cir. argued Jan. 19, 2018). Another district court, while

2 preliminarily enjoining the JAG Section 1373 Condition on other grounds, found that the Access

3 and Notification Conditions “were issued without appropriate authority,” concluded that the

4 Section 1373 Condition is arbitrary and capricious under the APA, and also concluded that

5 Philadelphia was likely to succeed in its claims that all of the conditions “are improper under

6 settled principles of the Spending Clause, the Tenth Amendment, and principles of federalism.”

7 City of Philadelphia v. Sessions, No. 17-cv-3894, --- F.Supp. 3d ---, 2017 WL 5489476, at *4, 33

8 (E.D. Pa. Nov 15, 2017), appeal docketed, No. 18-1103 (3d Cir. Jan. 18, 2018).

9

LEGAL STANDARD

10

A court should grant a Rule 12(b)(1) motion to dismiss only if “the complaint, considered

11 in its entirety, on its face fails to allege facts sufficient to establish subject matter jurisdiction.” In

12 re Dynamic Random Access Memory Antitrust Litig. v. Micron Tech., Inc., 546 F.3d 981, 984-85

13 (9th Cir. 2008). A Rule 12(b)(6) motion to dismiss should be granted only if the complaint fails

14 to state a cognizable legal theory or allege facts sufficient to support a cognizable legal theory.

15 Shroyer v. New Cingular Wireless Servs., 622 F.3d 1035, 1041 (9th Cir. 2010). For either type of

16 motion, the Court “must accept as true all material allegations of the complaint and must construe

17 the complaint in favor of the complaining party.” Maya v. Centex Corp., 658 F.3d 1060, 1068

18 (9th Cir. 2011) (quoting Warth v. Seldin, 422 U.S. 490, 501 (1975)); see also Ashcroft v. Iqbal,

19 556 U.S. 662, 678 (2009). “[G]eneral factual allegations of injury resulting from the defendants’

20 conduct may suffice, for on a motion to dismiss we presum[e] that general allegations embrace

21 those specific facts that are necessary to support the claim.” Lujan v. Defs. of Wildlife, 504 U.S.

22 555, 561 (1992) (internal quotation marks omitted). If the plaintiff alleges “enough facts to state

23 a claim to relief that is plausible on its face,” the motion must be denied. Bell Atl. Corp. v.

24 Twombly, 550 U.S. 544, 570 (2007). The Court may consider documents “submitted as part of

25 the complaint” or documents and facts subject to judicial notice. Lee v. City of Los Angeles, 250

26 F.3d 668, 688-89 (9th Cir. 2001) (quoting Branch v. Tunnell, 14 F.3d 449, 453 (9th Cir. 1994)).

27

28 4
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1

LEGAL ARGUMENTS

2 I. 3

THE JAG ACCESS AND NOTIFICATION CONDITIONS VIOLATE THE SEPARATION OF POWERS AND EXCEED CONGRESSIONAL AUTHORITY (CAUSES OF ACTION 1 AND 3)

4

The U.S. Constitution grants the spending power to Congress, art. I, § 8, cl. 1, and Congress

5 has “broad power to set the terms on which it disburses federal money to the States.” Arlington

6 Cent. Sch. Dist. Bd. of Educ. v. Murphy, 548 U.S. 291, 296 (2006). “[I]f Congress intends to

7 impose a condition on the grant of federal moneys, it must do so unambiguously.” Pennhurst

8 State Sch. & Hosp. v. Halderman, 451 U.S. 1, 17 (1981). This is especially so “[i]f Congress

9 intends to alter the usual constitutional balance between the States and the Federal Government.”

10 Gregory v. Ashcroft, 501 U.S. 452, 460 (1991) (quoting Will v. Mich. Dep’t of State Police, 491

11 U.S. 58, 65 (1989)). Moreover, courts must avoid reading statutes in a manner that “‘intrude[s]

12 upon traditional state criminal jurisdiction’ . . . absen[t] . . . a clear indication that” Congress

13 intended to do so. Bond v. United States, 134 S. Ct. 2077, 2088 (2014) (quoting United States v.

14 Bass, 404 U.S. 336, 350 (1971)). Thus, Defendant cannot unilaterally insert conditions into grant

15 awards without clear authorization from Congress. See City of Arlington, Tex. v. FCC, 569 U.S.

16 290, 297 (2013) (“both” an agency’s “power to act and how they are to act is authoritatively

17 prescribed by Congress”). Since Congress has neither added the Access and Notification

18 Conditions through statute, nor delegated to Defendants the authority to require JAG recipients to

19 comply with such conditions, the conditions violate the Separation of Powers. Youngstown Sheet

20 & Tube Co. v. Sawyer, 343 U.S. 579, 585-86, 588 (1952) (where Congress did not exercise or

21 delegate its authority, it was unconstitutional for the Executive Branch to “direct[] that a

22 presidential policy be executed in a manner prescribed by the President.”).

23

A. The Access and Notification Conditions Are Inconsistent with the JAG

Authorizing Statute

24

25

Defendants point to no provision of the JAG authorizing statute that affirmatively supports

26 the imposition of the Access and Notification Conditions. See MTD at 9-11. Indeed, the text,

27 purpose, and legislative history of JAG reveal that Defendants lack the authority to impose the

28 Access and Notification Conditions. 5
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1

The carefully crafted JAG authorizing statute, 34 U.S.C. §§ 10151-58, is designed to give

2 “each State” and “each unit of local government” an allocation according to a precise statutory

3 formula. 34 U.S.C. § 10156(a), (d)(2). Congress prescribed only ministerial requirements and

4 certifications for JAG recipients, including that jurisdictions comply with applicable laws. E.g.,

5 34 U.S.C. § 10153(a)(5); see also Jama v. ICE, 543 U.S. 335, 341 (2005) (courts will “not lightly

6 assume that Congress has omitted from its adopted text requirements that it nonetheless intends to

7 apply”). As a result, Defendants must disburse the funds appropriated by Congress to state and

8 local jurisdictions in accord with the statutory formula as long as the jurisdiction complies with

9 the conditions that exist in federal law. See Train v. City of New York, 420 U.S. 35, 45-46 (1975)

10 (“We cannot believe that Congress at the last minute scuttled the entire effort by providing the

11 Executive with the seemingly limitless power to withhold funds from the allotment and

12 obligation.”). Defendants do not have “unfettered discretion as to when and how” the federal

13 funds appropriated to JAG formula grants may be used because a formula grant “circumscribes

14 that discretion.” State Highway Comm’n of Mo. v. Volpe, 479 F.2d 1099, 1109 (8th Cir. 1973)

15 (limiting executive discretion to allocate funding under statute authorizing formula grants; “only

16 an analysis of the statute itself can dictate the latitude of the questioned discretion”).

17

Congress’s overarching goal in creating JAG was to provide state and local governments

18 with “more flexibility to spend money for programs that work for them rather than to impose a

19 ‘one size fits all’ solution” to local law enforcement. H.R. Rep. No. 109-233, at 89 (2005).4

20 Consistent with this goal, when creating the current incarnation of the grant program, in 2006, the

21 Legislature repealed the only immigration related requirement that ever existed for JAG, which

22 obligated the chief executive officer of each state receiving funding to provide certified records of

23 criminal convictions of “aliens.” Immigration Act of 1990, Pub. L. No. 101-649, § 507(a)(11),

24 104 Stat. 4978, 5050-51 (1990); Miscellaneous and Technical Immigration and Naturalization

25 Amendments of 1991, Pub. L. No. 102-232, § 306(a)(6), 105 Stat. 1733, 1751 (1991) (repealed

26 2006). Defendants’ imposition of the Access and Notification Conditions interprets the JAG

27 4 The legislative history is replete with recognition of local control to support local public safety priorities. E.g., 151 Cong. Rec. S12814 (statement of Sen. Dayton) (“Byrne grants fund local law
28 enforcement to combat the most urgent public safety problems in their own communities.”). 6
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1 authorizing statute as including the very type of immigration condition that Congress repealed.

2 See Stone v. INS, 514 U.S. 386, 397 (1995) (“When Congress acts to amend a statute, we presume

3 it intends its amendment to have real and substantial effect.”); see also Clinton v. City of New

4 York, 524 U.S. 417, 438 (1998) (“There is no provision of the Constitution that authorizes the

5 President to enact, to amend, or to repeal statutes.”). More recently, Congress has repeatedly

6 declined to attach immigration enforcement conditions to JAG, further reinforcing its intent to

7 detach immigration enforcement from JAG funding. See, e.g., Pl. RJN, Exs. H-K.

8

B. Section 10102 Does Not Provide USDOJ with the Authority to Impose the

Access and Notification Conditions 9

10

Recognizing that the JAG authorizing statute provides Defendants no justification for the

11 Access and Notification Conditions, Defendants claim instead that these new conditions are

12 permitted under 34 U.S.C. § 10102(a)(6), which allows the agency to add “special conditions on

13 all grants.” Defendants’ view would transform an administrative provision into one providing

14 limitless discretion to the agency. But, Congress “does not . . . hide elephants in mouseholes,”

15 nor “alter the fundamental details of a regulatory scheme in vague terms or ancillary provisions.”

16 Whitman v. Am. Trucking Ass’ns, 531 U.S. 457, 468 (2001). Any such delegation of authority,

17 moreover, would have to be clear and unambiguous, given federalism concerns. Amalgamated

18 Transit Union v. Skinner, 894 F.2d 1362, 1370 (D.C. Cir. 1990) (“Congress’ carefully chosen

19 design for allocating safety responsibility . . . should not be interpreted to confer any broader

20 safety authority upon [the federal agency] than is expressly provided, given the federalism values

21 which permeate the entire structure of the . . . Act.”).

22

Section 10102(a)(6) provides no such clarity. In 2006, when Section 10102(a)(6) was

23 amended to permit OJP to “plac[e] special conditions on all grants,” the term “special conditions”

24 had a precise meaning—one that does not encompass the ability to add the Access and

25 Notification Conditions. According to a USDOJ regulation in place at the time, Defendants could

26 impose “special grant or subgrant conditions” only on “high-risk” grantees. 28 C.F.R. § 66.12

27 (removed Dec. 19, 2014). This language was based on the grants management common rule

28 7
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1 adopted by the Office of Management and Budget (“OMB”), and followed by “all Federal

2 agencies” when administering grants to state and local governments.5

3

Federal statutes and regulations have historically identified “special conditions” not as any

4 conditions that the Executive Branch wishes to impose on all grantees, but rather as conditions

5 that federal agencies may place on particular high-risk grantees that have struggled or failed to

6 comply with grant conditions in the past. E.g., 20 U.S.C. § 1416(e)(1)(C); 7 C.F.R. § 550.10

7 (removed Oct. 11, 2016); 34 C.F.R. § 80.12 (removed Dec. 19, 2014); 45 C.F.R. § 74.14

8 (removed Dec. 19, 2014). That is what Congress meant in Section 10102(a)(6) as well. See

9 McDermott Int’l, Inc. v. Wilander, 498 U.S. 337, 342 (1991) (“[W]hen a statute uses [a term of

10 art],” courts “assume” that “Congress intended it to have its established meaning.”); Nat’l Lead

11 Co. v. United States, 252 U.S. 140, 147 (1920) (“Congress is presumed to have legislated with

12 knowledge of such an established usage of an executive department of the government.”).

13 Indeed, USDOJ still embraces this narrow meaning of “special condition” by distinguishing the

14 new Section 1373 “Special Award Condition” added to CalDOJ’s COPS grant as a “High Risk

15 Condition,” while the grant’s other conditions are identified simply as “Award Terms and

16 Conditions.” Compare Pl. RJN, Ex. E at 5 with id. at 20.

17

It is against this backdrop that any delegation of authority must be interpreted. See

18 Gonzales v. Oregon, 546 U.S. 243, 274 (2006) (“[P]rinciples of our federal system . . . belie the

19 notion that Congress would use an obscure grant of authority to regulate areas traditionally

20 supervised by the States’ police power.”). When Congress wanted to add substantive compliance

21 conditions to JAG, it has done so. E.g., 34 U.S.C. §§ 20927(a) (permitting 10 percent penalty on

22 JAG funds for failing to “substantially implement” the Sex Offender Registration and

23 5 Recompilation of OMB Circular A-102 (as amended Aug. 29, 1997),
24 https://www.whitehouse.gov/sites/whitehouse.gov/files/omb/circulars/A102/a102.pdf (“Agencies may impose special conditions or restrictions on awards to ‘high risk’ applicants/grantees. . . .”).
25 When OMB transitioned from the grants management common rule to uniform guidance in 2014, and revised “special condition” to “specific condition,” see 2 C.F.R. § 200.207, the meaning of
26 the term did not change. See Uniform Guidance Crosswalk from Existing Guidance to Final Guidance at 4 (linking new “specific condition” provision to previous “special condition”
27 provision), https://obamawhitehouse.archives.gov/sites/default/files/omb/fedreg/2013/uniformguidance-crosswalk-from-predominate-source-in-existing-guidance.pdf.
28
8
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1 Notification Act); 30307(e)(2) (permitting 5 percent penalty on JAG if a State fails to adopt

2 Prison Rape Elimination Act standards); cf. Pennhurst, 451 U.S. at 23 (“When Congress intended

3 to impose conditions on the grant of federal funds . . . it proved capable of doing so in clear

4 terms.”). In contrast, there is no statutory authority that “even hint[s]” at requiring compliance

5 with the Access and Notification Conditions, or conferring a broad delegation of authority for

6 JAG.6 Arlington Cent. Sch. Dist., 548 U.S. at 297.

7

Defendants’ fear that the State’s interpretation of Section 10102(a)(6) would jeopardize “all

8 of the[] longstanding and never-before-challenged [JAG] conditions” is unfounded. See MTD at

9 1. Other JAG conditions are tethered to the authorizing statute that require grantees and their

10 programs to: (a) comply with the provision of “this part,” 34 U.S.C. § 10153(a)(5)(A) & (D); (b)

11 “maintain and report such data, records, and information (programmatic and financial) as the

12 Attorney General may reasonably require,” id. § 10153(a)(4); and (c) comply with “all other

13 applicable Federal laws,” id. § 10153(a)(5)(D). None of these other conditions need to rely on

14 Section 10102(a)(6) as a basis for imposing them. See Analysis of FY 2016 Byrne JAG Award

15 Special Conditions, Ex. F to Pl’s Mem. in Supp. of Mot. for Prelim. Inj., Philadelphia, supra

16 (E.D. Pa. Sept. 28, 2017), ECF No. 21-11.

17

If Congress intended to provide broad authority to the Executive Branch to impose such

18 conditions, it would have said so. All of Congress’s actions in connection with JAG and

19 otherwise—providing flexibility to jurisdictions, expressly removing a condition related to

20 immigration enforcement, repeatedly rejecting the attachment of funding conditions to

21 immigration enforcement, and using precise and narrow terminology to define the authority to

22 add conditions outside the JAG authorizing statute—point toward one conclusion: The Access

23 and Notification Conditions are not permitted. See FDA v. Brown & Williamson Tobacco Corp.,

24 529 U.S. 120, 144, 155-56, 160 (2000) (considering Congress’s actions of rejecting bills adopting

25 the agency’s interpretation of its authority, and other legislative action “[t]aken together” to

26 6 Further undercutting the imposition of the Access and Notification Conditions is 34 U.S.C. §
27 10228(a),which is codified in the same chapter as the JAG authorizing statute, and prohibits the use of federal law enforcement grants to exercise “any direction, supervision, or control” over a
28 state or local police force or criminal justice agency. 9
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1 conclude that “Congress could not have intended to delegate a decision of such economic and

2 political significance to an agency in so cryptic a fashion”).

3 II. THE JAG IMMIGRATION ENFORCEMENT CONDITIONS VIOLATE THE SPENDING CLAUSE (CAUSES OF ACTION 2 AND 3)
4

5

Congress may only use its spending power to place funding conditions that are related “‘to

6 the federal interest in particular national projects or programs.’” South Dakota v. Dole, 483 U.S.

7 203, 207 (1987) (quoting Massachusetts v. United States, 435 U.S. 444, 461 (1978) (plurality

8 opinion)). Conditions on federal funds must also be “unambiguous,” so that recipient

9 jurisdictions may “exercise their choice knowingly, cognizant of the consequences of their

10 participation” in the federal program. Pennhurst, 451 U.S. at 17. “States cannot knowingly

11 accept conditions of which they are ‘unaware’ or which they are ‘unable to ascertain.’” Arlington

12 Cent. Sch. Dist., 548 U.S. at 296 (quoting Pennhurst, 451 U.S. at 17). The JAG Immigration

13 Enforcement Conditions fail these tests.

14

A. There is an Insufficient Nexus Between the JAG Immigration Enforcement

Conditions and the Federal Purpose of JAG 15

16

The Immigration Enforcement Conditions do not have a sufficient nexus to the federal

17 interest in the funding program, as evident by the legislative history of JAG, case law, and the

18 INA itself. Critically, none of the JAG Immigration Enforcement Conditions were created by

19 Congress. See 34 U.S.C. §§ 10151-58. Instead, the legislative history reveals that Congress did

20 not intend for JAG funding to be conditioned on immigration enforcement, supra at 5-7, and did

21 not intend for immigration enforcement to be a purpose in allotting JAG funding. The Anti-Drug

22 Abuse Act of 1988 created the Edward Byrne Memorial State and Local Law Enforcement

23 Assistance Program grants (“Byrne Grants”) to be used toward programs that improve the

24 criminal justice system. Anti-Drug Abuse Act of 1988, Pub. L. No. 100-690, § 6091(a), 102 Stat.

25 4181, 4329 (1988). From 1988 to 2006, Congress identified 29 purpose areas for Byrne Grant

26 funding.7 For Fiscal Year 1996, Congress separately authorized Local Law Enforcement Block

27 7 Decl. of Lee Sherman in Supp. of California’s Opp’n of Def’s Mot. to Dismiss (“Sherman Decl.”), Ex. A (identifying the 29 Byrne Grant purposes).
28 10
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1 Grants (“LLEBG”) with 9 “purpose areas” targeted to local governments for “reducing crime and

2 improving public safety.”8 When Congress merged the Byrne Grant and LLEBG programs in

3 2006 to form the current JAG program, Congress consolidated the 38 purpose areas into 8 to

4 support “criminal justice” programs. 34 U.S.C. 10152(a)(1). At no point did Congress identify a

5 purpose area of immigration enforcement. See Cty. of Santa Clara v. Trump, 250 F. Supp. 3d

6 497, 532 (N.D. Cal. 2017), appeal docketed, No. 17-17480 (9th Cir. Dec. 14, 2017) (“The

7 conditions placed on congressional spending must have some nexus with the purpose of the

8 implicated funds.”).

9

Since Congress did not connect immigration enforcement to JAG funding, the Immigration

10 Enforcement Conditions do not pass muster under the cases relied upon by Defendants. See

11 MTD at 14. In Dole, a condition requiring a minimum drinking age of twenty-one in order for a

12 state to receive federal highway funds was “directly related to one of the main purposes for which

13 highway funds are expended—safe interstate travel.” Dole, 483 U.S. at 208. In Mayweathers v.

14 Newland, 314 F.3d 1062 (9th Cir. 2002), the Ninth Circuit determined that a condition prohibiting

15 state prisons from using federal dollars to infringe on prisoners’ individual liberties “b[ore] some

16 relationship to the purpose of the federal spending” for prisoner rehabilitation. Id. at 1067. Here,

17 “[i]mmigration law has nothing to do with enforcement of local criminal laws,” which is what

18 JAG is intended to support. Philadelphia, 2017 WL 5489476, at *48. Immigration enforcement

19 is generally civil in nature, and predominantly the responsibility of the federal government.

20 Arizona v. United States, 567 U.S. 387, 396 (2012); MTD at 3. The use of one program (criminal

21 justice funding) to advance the purposes of another (civil immigration enforcement) cannot

22 satisfy the nexus test.9 See Texas v. United States, No. 15-cv-151, 2016 WL 4138632, at *17

23 (N.D. Tex. Aug. 4, 2016) (finding Spending Clause claim viable because challenged health

24 8 Local Government Law Enforcement Block Grants Act of 1995, HR 728, 104th Cong. (1995), first authorized as part of the Dep’t of Commerce, Justice, and State, the Judiciary, and Related
25 Agencies Appropriations Act of 1996, Pub. L. No. 104-134, 110 Stat. 1321, 1321-12 (1996); see Sherman Decl., Ex. B (identifying the 9 LLEBG purposes).
26 9 The definition of “criminal justice” in the same chapter as the JAG authorizing statute, see MTD at 4-5, reinforces this distinction. “Criminal justice” is defined as “activities pertaining to crime
27 prevention, control, or reduction, or the enforcement of the criminal law.” 34 U.S.C. § 10251(a)(1) (emphasis added). The statute provides several examples of criminal law
28 enforcement, none of which specifies immigration enforcement. See id.
11
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1 insurance fee is not “‘directly related,’ let alone ‘reasonably related’” to Medicaid as its purpose

2 was to fund a different federal program).

3

Defendants’ reliance on provisions within the INA to support the imposition of these

4 conditions (MTD at 14-15) is irrelevant as the INA does not authorize JAG. Whatever the federal

5 government’s interest may be in encouraging voluntary local assistance in immigration

6 enforcement as a general matter, that is not an interest manifested in the JAG program. Supra at

7 10-11. Moreover, the relationship between “criminal justice” and the JAG Section 1373

8 Condition—which the State does not “largely concede[]” complies with the Spending Clause,

9 contra MTD at 17—is especially attenuated by this Administration’s expanded focus on the

10 removal of all “classes or categories of removable aliens.” Pl. RJN, Ex. L at 2. A large number

11 of immigration violators (such as visa overstayers) are subject only to civil penalties, for whom

12 there is absolutely no intersection between immigration and criminal law. E.g., 8 U.S.C. §§

13 1182(a)(6)(A) & (9)(B), 1202(g); 1227(a)(1)(B). Following the Administration’s directive,

14 immigration authorities have substantially increased enforcement against those without criminal

15 convictions or criminal history. Pl. RJN, Ex. M at 7 (showing 150% increase in ICE at-large

16 arrests for non-criminal immigration violators between FY 2016 and FY 2017). Since

17 Defendants view Section 1373 as applying to “every person in the United States,” Pl. RJN, Ex. N

18 at 12:23-25, the condition requires state and local governments comply with respect to persons

19 who may have only violated the civil immigration laws. The Section 1373 Condition has no

20 relationship to the JAG criminal justice programs for such non-criminal offenders.

21

B. The Access and Notification Conditions Provide the State with Inadequate

Notice of What the Conditions Require 22

23

In addition, the Access and Notification Conditions violate the Spending Clause by failing

24 to provide the State clear notice of what the conditions require.10 Unlike the other conditions

25 10 The State does not allege that the JAG Section 1373 Condition is ambiguous (MTD at 11)
26 because, as discussed infra at 25-26, the State’s position is that the statutory text of Section 1373 is unmistakably clear in only prohibiting restrictions on the exchange of information that squarely
27 establishes a person’s immigration or citizenship status. Defendants’ muddying of the clear language of the statute with their ever-expanding misinterpretation of Section 1373, at minimum,
28 supports the State’s basis for declaratory relief. 12
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1 Defendants highlight (MTD at 13), Defendants have not, and cannot, identify a federal statute that

2 provides guidance on the Access or Notification Conditions (see Defs. RJN, Ex. B ¶¶ 19, 23), and

3 have not issued specific guidance about the conditions. Compare id. ¶¶ 20, 21 (referring to

4 guidance on the OJP website for those conditions) with id. ¶¶ 55, 56 (the Access and Notification

5 Conditions with no reference to guidance). For example, the conditions fail to explain whether

6 the undefined term “designed to ensure” means that a jurisdiction must adopt a policy specifically

7 directed to the Access and Notification Conditions, or whether general regulations or practices

8 regarding the treatment of detention facilities are sufficient. FAC ¶ 87. This “vague language

9 does not make clear what conduct [the conditions] proscribe[] or give[] jurisdictions a reasonable

10 opportunity to avoid [their] penalties.” Cty. of Santa Clara, 250 F. Supp. 3d at 532.

11

The Access Condition is uniquely problematic, because the term “access” is undefined,

12 with no guidance of what and how much “access” jurisdictions must provide. See Defs. RJN, Ex.

13 B ¶ 55. The Access Condition also fails to provide the State with notice of whether a law or

14 policy that requires local jurisdictions to inform inmates of their right to have a lawyer present or

15 to decline an interview with ICE would violate the condition. FAC ¶ 86. Defendants’ apparent

16 erroneous classification of California’s TRUTH Act as “denying requests by ICE officers . . . to

17 enter prisons and jails to make arrests,” see id. ¶ 109 n.10, when the law does not deny ICE

18 access, further obscures what Defendants would consider to be a violation.

19 III. THE JAG IMMIGRATION ENFORCEMENT CONDITIONS ARE ARBITRARY AND CAPRICIOUS IN VIOLATION OF THE APA (CAUSE OF ACTION 4)
20

21

A. Defendants’ Imposition of the JAG Immigration Enforcement Conditions

is Final Agency Action that is Judicially Reviewable 22

23

Defendants attempt to divert the Court from reviewing the unconstitutionality and

24 unlawfulness of the Immigration Enforcement Conditions by contending that the Immigration

25 Enforcement Conditions are not final agency action, and therefore, are unreviewable. See MTD

26 at 16-17. However, the decision to require jurisdictions to comply with the Immigration

27 Enforcement Conditions in order to receive JAG funds is “final agency action” because it meets

28 the two requirements set forth by the U.S. Supreme Court: (1) it marks the “consummation of the 13
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1 agency’s decisionmaking process”; and (2) it is one where “rights or obligations have been

2 determined or from which legal consequences will flow.” Bennett v. Spear, 520 U.S. 154, 177-78

3 (1997) (internal quotation marks omitted); see also Columbia Riverkeeper v. U.S. Coast Guard,

4 761 F.3d 1084, 1094-95 (9th Cir. 2014) (“[C]ourts consider whether the practical effects of an

5 agency’s decision make it a final agency action, regardless of how it is labeled”).

6

First, Defendants already decided to make Section 1373 an applicable law for JAG in 2016,

7 and for FY 2017, to require all jurisdictions to certify compliance under penalty of perjury with

8 Section 1373 before JAG funds will be disbursed. FAC ¶¶ 73, 75, 77; cf. Appalachian Power Co.

9 v. E.P.A., 208 F.3d 1015, 1023 (D.C. Cir. 2000) (federal agency guidance document is final

10 agency action where it “commands,” “requires,” “orders,” and “dictates,” provides “the States

11 their ‘marching orders,’” and the agency “expects the States to fall in line”). Similarly,

12 Defendants have made the final decision to include the Access and Notification Conditions, and

13 to require jurisdictions to comply. FAC ¶ 76. Defendants already awarded grants with the JAG

14 Immigration Enforcement Conditions, and they have stated that the State will receive the same

15 conditions with “substantively identical language.” See Pl. RJN, Ex. O ¶ 8. Therefore,

16 Defendants’ new assertion that “USDOJ has not reached a final determination as to whether to

17 grant or deny the State’s FY 2017 Byrne JAG Application,” MTD at 16, raises additional legal

18 problems. JAG is a formula grant. Having made awards to some jurisdictions for FY 2017,

19 Defendants lack authority to refuse to carry out the remaining statutory allocations or to deny

20 JAG funds to the State if it satisfies the conditions enumerated in the authorizing statute. Supra at

21 6; see also In re Aiken Cty., 725 F.3d 255, 261 n.1 (D.C. Cir. 2013) (despite “policy reasons . . .

22 even the President does not have unilateral authority to refuse to spend the funds”).

23

Second, the JAG Immigration Enforcement Conditions trigger “legal consequences” and

24 “the challenged agency action has the effect of committing the agency itself to a view of the law

25 that, in turn, forces the plaintiff to either alter its conduct, or expose itself to potential liability.”

26 Texas v. United States, 201 F. Supp. 3d 810, 824 (N.D. Tex. 2016) (internal quotation marks

27 omitted). Here, by requiring the chief legal officer to certify compliance under penalty of perjury

28 with the Section 1373 Condition, and the grantee to certify compliance with all three conditions 14
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1 under penalty of perjury, see FAC, Ex. A, App. IV ¶ 3(a), Defendants have committed to a view

2 that requires California to act. See Texas, 201 F. Supp. 3d at 824 (“[A]n agency can create legal

3 consequences even when the action, in itself, is disassociated with the filing of an enforcement

4 proceeding. . . .”) (internal quotation marks omitted); see also U.S. Army Corps of Eng’rs v.

5 Hawkes Co., Inc., 136 S. Ct. 1807, 1815 (2016) (recognizing the “pragmatic approach” that the

6 U.S. Supreme Court has “long taken to finality”).

7

B. The JAG Immigration Enforcement Conditions Are Arbitrary and

Capricious 8

9

For an agency action to survive as not being arbitrary and capricious, the agency must not:

10 (a) rely on factors which Congress did not intend for it to consider; (b) fail to consider an

11 important aspect of the problem; or (c) offer an explanation for its decision that runs counter to

12 the evidence before the agency. Motor Vehicle Mfrs. Ass’n of the U.S. v. State Farm Mut. Auto.

13 Ins. Co., 463 U.S. 29, 43 (1983). The agency action here fails all of the above.

14

First, Defendants have not, and cannot, demonstrate that they acted consistent with factors

15 that Congress intended. The Access and Notification Conditions have no support in the JAG

16 authorizing statute or federal immigration law. Supra at 5-7, 10-12. Before 2016, JAG was never

17 linked to Section 1373. Then, in 2016, without providing any evidence that Congress intended

18 for immigration enforcement to be a purpose area for JAG, USDOJ declared Section 1373 an

19 “applicable law.” FAC ¶¶ 75, 81. At no point have Defendants explained how the new

20 conditions are consistent with the underlying goals of JAG, or with Congress’s intent in adopting

21 JAG. That the federal government may have an interest in immigration enforcement, MTD at 18-

22 19, does not mean that the interest is sufficiently connected to the JAG authorizing statute to

23 satisfy the arbitrary and capricious analysis. See Cape May Greene, Inc. v. Warren, 698 F.2d

24 179, 186-87 (3rd Cir. 1983) (invalidating agency action on grant conditions as arbitrary and

25 capricious where the agency sought “to accomplish matters not included in that statute”).

26

Defendants have not met the other requirements of the arbitrary and capricious analysis.

27 Defendants attach two documents to their motion which they purport contains the justification for

28 the two conditions: the 2016 Office of Inspector General (“OIG”) Memorandum and a July 25, 15
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1 2017 “Backgrounder on Grant Requirements” issued by the Office of Public Affairs. MTD at 18;

2 Defs. RJN, Exs. P, Q. In neither document do Defendants show that they considered the ample

3 evidence from jurisdictions around the country that law enforcement policies that collaborate and

4 build trust with immigrant communities result in positive criminal enforcement and safety

5 outcomes. State Farm, 463 U.S. at 43 (“Normally, an agency rule would be arbitrary and

6 capricious if the agency has . . . entirely failed to consider an important aspect of the

7 problem. . . .”); Providence Yakima Med. Ctr. v. Sebelius, 611 F.3d 1181, 1190 (9th Cir. 2010)

8 (“The agency, however, is required to examine the relevant data and articulate a satisfactory

9 explanation for its action including a rational connection between the facts found and the choices

10 made. . . .”) (internal quotation marks omitted). USDOJ has not “cogently explain[ed] why it has

11 exercised its discretion in a given manner” with respect to the Immigration Enforcement

12 Conditions. State Farm, 463 U.S. at 48.

13

Although “a reasoned explanation is needed for disregarding facts and circumstances that

14 underlay or were engendered by the prior policy,” FCC v. Fox Television Stations, Inc., 556 U.S.

15 502, 516 (2009), the documents relied upon by Defendants fail to justify the new conditions. The

16 OIG Memorandum does not discuss or contemplate how the conditions are consistent with

17 Congress’s intent in adopting JAG or, as discussed above, the contrary evidence before the

18 agency. Nat’l Cable & Telecomms. Ass’n v. Brand X Internet Servs., 545 U.S. 967, 981 (2005)

19 (“Unexplained inconsistency is. . . a reason for holding an interpretation to be an arbitrary and

20 capricious change from an agency practice under the Administrative Procedure Act.”). Neither

21 does the Backgrounder on Grant Requirements. A general recitation of a “goal of increasing

22 information sharing,” see Defs. RJN, Ex. Q, “[falls] short of the agency’s duty to explain why it

23 deemed it necessary to overrule its previous position.” Encino Motorcars, LLC v. Navarro, 136

24 S. Ct. 2117, 2125 (2016) (“Agencies are free to change their existing policies as long as they

25 provide a reasoned explanation for the change.”). Defendants’ failure to provide a reasoned

26 justification for the policy reversal merits denial of Defendants’ motion as to the State’s APA

27 claim. Nw. Envtl. Def. Ctr. v. Bonneville Power Admin., 477 F.3d 668, 690 (9th Cir. 2007)

28 (agency decision was arbitrary and capricious where “record does not indicate that the decision 16
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1 was the output of a rational decision-making process” and agency “departed from its two-decade-

2 old precedent without supplying a reasoned analysis for its change of course”).

3 IV. THE STATE IS ENTITLED TO A DECLARATORY JUDGMENT THAT THE IDENTIFIED STATE LAWS COMPLY WITH SECTION 1373 (CAUSE OF ACTION 5)
4

5

A. The State’s Declaratory Judgment Claim is Justiciable

6

1. The State Has Standing to Seek a Declaration that the Amended

TRUST Act, TRUTH Act, and State Confidentiality Statutes Comply

7

with Section 1373

8

To bring a claim under the Declaratory Judgment Act, a plaintiff must demonstrate an

9 “actual controversy,” such that “there is a substantial controversy, between parties having adverse

10 legal interests, of sufficient immediacy and reality to warrant the issuance of a declaratory

11 judgment.” Cty. of Santa Clara v. Trump, No. 17-cv-574, --- F. Supp. 3d ---, 2017 WL 3086064,

12 at *10 (N.D. Cal. Jul. 20, 2017) (quoting Md. Cas. Co. v. Pac. Coal & Oil Co., 312 U.S. 270, 273

13 (1941)). An entity facing an enforcement action may prove standing by demonstrating a well-

14 founded fear of enforcement and a threatened injury that is “sufficiently real and imminent” or “is

15 itself causing present injury.” Cty. of Santa Clara, 250 F. Supp. 3d at 519 (citing O’Shea v.

16 Littleton, 414 U.S. 488, 496 (1974)), Virginia v. Am. Booksellers Ass’n, Inc., 484 U.S. 383, 393

17 (1988)). Defendants argue that since they have yet to take any agency action against the State’s

18 other laws, the State has no standing to seek a declaration on any statute other than the Values

19 Act. MTD at 21-22. However, Defendants’ actions against the State and other jurisdictions have 20 created a real and immediate controversy about whether the amended TRUST Act,11 TRUTH

21 Act, and State Confidentiality Statues comply with Section 1373.

22

Defendants’ focus on the Alleged Non-Compliance Letter about the Values Act ignores the

23 other occasions the federal government has called out California’s laws. On March 31, 2017,

24 Defendant Sessions, presumably referring to the TRUTH Act, incorrectly stated that the “State of

25 California . . . ha[s] enacted statutes and ordinances designed to specifically prohibit or hinder

26 ICE from enforcing immigration law by . . . denying requests by ICE officers and agents to enter

27 11 Since the Amended TRUST Act, Cal. Gov’t Code § 7282.5(a), regulates the provision of release dates in the same manner as the Values Act, which Defendants object to, standing
28 separately exists for the TRUST Act on that basis as well. 17
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1 prisons and jails to make arrests.” See FAC ¶ 109 n.10. ICE Acting Director Homan later

2 testified before Congress that jurisdictions that “have some sort of policy where they don’t . . .

3 allow [ICE] access to the jails” violate Section 1373. Id. ¶ 109. On April 21, 2017, before the

4 State’s adoption of the Values Act, Defendants Sessions and USDOJ claimed that California

5 “ha[s] laws that potentially violate 8 U.S.C. § 1373.” Id. ¶ 110. As this Court already found in

6 the litigation surrounding the Executive Order directed at sanctuary jurisdictions, “[t]he

7 Government’s specific criticisms of . . . California,” which occurred prior to the passage of the

8 Values Act, “support a well-founded fear that [the jurisdictions] . . . could be subject to defunding

9 indirectly through enforcement against California.” Cty. of Santa Clara, 250 F. Supp. 3d at 524;

10 see Ohio ex rel. Celebrezze v. U.S. Dep’t of Transp., 766 F.2d 228, 233 (6th Cir. 1985) (state had

11 standing, despite no pending enforcement action, when the federal government’s position

12 rendered uncertain the effective enforcement of the state statute).

13

The record that has developed since further demonstrates the State’s basis for standing as to

14 these statutes. Defendants have sought to enforce Section 1373 against laws and policies similar

15 to the State’s Confidentiality Statutes. See Pl. RJN, Exs. B at 1-2, C at 1; Def.’s Opp’n to Mot.

16 for Prelim. Inj., Philadelphia, supra (E.D. Pa. Oct. 12, 2017), ECF No. 28, at 38-39 (stating the

17 city’s crime victim policy “do[es] not comply with Section 1373” on its “face”). In Susan B.

18 Anthony List v. Driehaus, 134 S. Ct. 2334 (2014), the Supreme Court concluded that one set of

19 plaintiffs had standing to challenge a law because they intended to engage in the same speech

20 subject to prior enforcement actions. Id. at 2346. In Texas, 201 F. Supp. 3d at 820, the district

21 court found that enforcement actions against other non-party jurisdictions with similar policies as

22 the litigant states provided Texas and other states standing to challenge the Title IX guidance that

23 was the basis of those enforcement actions. Id. at 820. Likewise, Defendants’ actions against

24 other jurisdictions with similar laws present a credible fear that Defendants are planning to

25 enforce Section 1373 against the State’s statutes. To be sure, Defendants have kept their options

26 open by expressly “reserv[ing] the right to identify additional bases of potential violations of 8

27 U.S.C. § 1373.” Defs. RJN, Ex. N at 2. The State need not wait for Defendants to “drop the

28 hammer” in order for the State to “have its day in court.” Hawkes, 136 S. Ct. at 1815. 18
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1

Because Defendants’ interpretation of Section 1373 and the certification requirements

2 undermine the State’s “exercise of its sovereign power to create and enforce a legal code . . . it

3 inflict[s] on the state the requisite injury-in-fact.” Va. ex rel. Cuccinelli v. Sebelius, 656 F.3d 253,

4 269 (4th Cir. 2011) (internal quotation marks and emphasis omitted). Defendants’ actions also

5 threaten a “loss of [JAG] funds promised under federal law” and awarded COPS funds, which,

6 “satisfies Article III’s standing requirement.” Organized Vill. of Kake v. U.S. Dep’t of Agric., 795

7 F.3d 956, 965 (9th Cir. 2015). Additionally, the certification requirement creates legal jeopardy

8 because the Attorney General and counsel for local jurisdictions must affirm compliance under

9 penalty of perjury. FAC ¶ 77. In fact, as Defendants made clear at the hearing on the preliminary

10 injunction, they expect that any jurisdiction that executes their certification agrees with “the

11 Government’s interpretation” of Section 1373. Pl. RJN, Ex. P at 29:16-19. These circumstances

12 collectively support a well-founded fear of enforcement and injury that is “real and immediate.”

13 O’Shea, 414 U.S. at 496.

14

2. The State’s Request for a Declaration that the Values Act Complies

with Section 1373 is Ripe 15

16

While conceding that the State has standing to seek a declaration that the Values Act

17 complies with Section 1373, Defendants argue that the State must wait until the completion of the

18 administrative process for the State’s declaratory judgment claim to be ripe. MTD at 22-24.12

19 However, as both the Supreme Court and Ninth Circuit have recognized, in challenges like this

20 where the issue turns on whether there is a substantial risk that the harm will occur, the

21 constitutional standing and ripeness issues “boil down to the same question.” Susan B. Anthony

22 List, 134 S. Ct. at 2341 n.5 (quoting MedImmune, Inc. v. Genentech, Inc., 549 U.S. 118, 128 n.8

23 (2007)); see also Mont. Envtl. Info. Ctr. v. Stone-Manning, 766 F.3d 1184, 1189 (9th Cir. 2014)

24 (stating constitutional “ripeness coincides squarely with standing’s injury in fact prong” and

25 evaluating claim on basis of whether alleged injury is “imminent”) (quoting Thomas v.

26 Anchorage Equal Rights Comm’n, 220 F.3d 1134, 1139 (9th Cir. 2000) (en banc)).

27 12 Defendants do not challenge the ripeness of the State’s declaratory relief claim as to the other
28 state statutes. See MTD at 22. 19
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1

Injury in fact, and thus ripeness, is shown where there is “an intention to engage in a course

2 of conduct arguably affected with a constitutional interest, but proscribed by a statute, and there

3 exists a credible threat of prosecution thereunder.” Susan B. Anthony List, 134 S. Ct. at 2342

4 (quoting Babbitt v. Farm Workers, 442 U.S. 289, 298 (1979)). For constitutional ripeness, the

5 Ninth Circuit “look[s] to a three-part test: (1) whether the plaintiff has articulated a clear plan to

6 violate the law in question; (2) whether there has been a threat of prosecution from the state; and

7 (3) whether the statute at issue has previously been enforced.” Maldonado v. Morales, 556 F.3d

8 1037, 1044 (9th Cir. 2009) (citing Thomas, 220 F.3d at 1138-39). “In other words, ‘a genuine

9 threat of enforcement’ is sufficient to render a claim ripe for review.” Id. (quoting City of

10 Houston v. Hill, 482 U.S. 451, 459 n.7 (1987)). California satisfies this standard because: (1) the

11 State’s response to the Alleged Non-Compliance Letter effectively “articulated a clear plan to

12 violate [Defendants’ interpretation of] the law in question;” (2) Defendants made a “threat of

13 prosecution” against California in the letter and in public statements; and (3) Defendants sought

14 to enforce Section 1373 35 times since October 2017, including against California. See, e.g.,

15 Defs. RJN, Ex. N; Pl. RJN, Exs. A, B, and C.

16

Although Defendants argue that the State’s Values Act claim is constitutionally unripe, they

17 continue to focus their argument on elements consistently associated with prudential ripeness.

18 See MTD at 22-24 (discussing need for further factual development, availability of administrative

19 process, and lack of administrative finality).13 “The Supreme Court has . . . question[ed] ‘the

20 continuing vitality of the prudential ripeness doctrine’ and highlighted that prudential ripeness is

21 distinct from constitutional ripeness.” Cty. of Santa Clara, 250 F. Supp. 3d at 529 (quoting Susan

22 B. Anthony List, 134 S. Ct. at 2347). The Ninth Circuit has declined to analyze prudential

23 ripeness when constitutional ripeness is satisfied. Mont. Envtl. Info. Ctr., 766 F.3d at 1188 n.3.

24 And this Court found that “contingent future events” do not necessarily make a matter unripe, for

25 if that was so, “virtually all pre-enforcement cases would be non-justiciable on prudential

26 13 Although Defendants insist that their cited cases involve more than prudential ripeness, that is exactly what these cases support. See MTD at 20-21 & n.7. For example, Defendants rely on
27 Abbott Labs v. Gardner, 387 U.S. 136 (1967), which Coons v. Lew, 762 F.3d 891 (9th Cir. 2014), describes as setting the standard for prudential ripeness. Id. at 900.
28
20
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1 ripeness grounds.” Cty. of Santa Clara, 250 F. Supp. 3d at 529 (placing United States v. Texas

2 analysis in the prudential ripeness inquiry).14

3

Regardless of how Defendants characterize the prudential ripeness test, the State satisfies

4 the additional considerations of fitness and hardship as well. Ohio Forestry Ass’n, Inc. v. Sierra

5 Club, 523 U.S. 726, 733 (1998). A case involving an agency action is prudentially ripe when: (1)

6 delayed review causes hardship to the plaintiff; (2) judicial intervention does not inappropriately

7 interfere with administrative action; and (3) further factual development is unnecessary. Id. All

8 support ripeness here.15 First, there is “substantial hardship” from delayed review due to the legal

9 jeopardy of signing the 2017 certification under penalty of perjury and the prospect of subsequent

10 claw back. See Pac. Gas & Elec. Co. v. State Energy Res. Conservation & Dev. Comm’n, 461

11 U.S. 190, 201 (1983). The State also presently faces a hardship because Defendants have

12 withheld the State’s awarded COPS funds pending completion of their “inquiry” into the State’s

13 Section 1373 compliance. Pl. RJN, Ex. E. Furthermore, under 28 C.F.R. § 18.5(i), Defendants

14 may suspend the State’s JAG funding pending completion of the administrative process.

15

Second, judicial action would not inappropriately interfere with administrative action.

16 Defendants made clear in the Alleged Non-Compliance Letter that they view the Values Act as

17 violating Section 1373 unless BSCC certifies that it interprets and applies the Act to not restrict

18 the sharing of release dates and home addresses. BSCC could not so certify, presenting a purely

19 legal question regarding the proper reach of Section 1373. See, e.g., Texas, 201 F. Supp. 3d at

20 824 (rejecting argument that administrative process should finish where issues were “purely

21 legal” and defendants asserted plaintiffs were non-compliant with their view of the statute).

22 Under the “firm prediction” rule, which the Ninth Circuit has adopted, “if the court can make a

23 14 In any event, the “contingent future events” in United States v. Texas, 523 U.S. 296 (1998), are distinguishable because Texas had “no idea of whether or when” the state law would be enforced,
24 rendering a triggering potential enforcement action by the federal government uncertain. Id. at 299-300. Here, a specific enforcement action has already begun. Wash. Legal Found. v. Legal
25 Found. of Wash., 271 F.3d 835 (9th Cir. 2001), also relied upon by Defendants, deals with a Fifth Amendment constitutional takings claim, which has its own specific ripeness test. Id. at 850-51.
26 15 Although Defendants cite to the Chicago court’s denial of the city’s motion for reconsideration on its Section 1373 claim, MTD at 23, that portion of the Chicago opinion is dicta as the court
27 had already determined that the city’s as-applied challenge should be denied because the court’s decision on the underlying motion was based on a facial challenge of Section 1373. City of
28 Chicago v. Sessions, No. 17-cv-5720, 2017 WL 5499167, at *3 (N.D. Ill. Nov. 16, 2017).
21
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1 firm prediction that the plaintiff will apply for the benefit, and that the agency will deny the

2 application by virtue of the rule—then there may well be a justiciable controversy.” Reno v.

3 Catholic Soc. Servs., 509 U.S. 43, 69 (1993) (O’Connor, J., concurring); accord Immigrant

4 Assistance Project of the L.A. Cty. Fed’n of Labor (AFL-CIO) v. INS, 306 F.3d 842, 861-62 (9th

5 Cir. 2002) (holding that under the firm prediction rule, “a suit challenging a benefit conferring

6 rule is . . . not ‘necessarily unripe’ simply because the agency has not yet denied a filed

7 application.”) (emphasis in original); Freedom to Travel Campaign v. Newcomb, 82 F.3d 1431,

8 1436 (9th Cir. 1996) (determining there to be a justiciable conflict because the Ninth Circuit

9 could “firmly predict that [the] application would be denied”).

10

Defendants’ reference to USDOJ regulations, MTD at 23, does not matter. The Alleged

11 Non-Compliance Letter does not appear to begin the administrative process. See 28 C.F.R. §

12 18.5(a)-(b). The regulations also say nothing about the present situation—where the State seeks a

13 determination relating to its ability to certify compliance for future grants. The State cannot be

14 required to comply with an administrative process that does not exist. See Darby v. Cisneros, 509

15 U.S. 137, 138, 146-47 (1993). Additionally, the State’s interests “weigh heavily against requiring

16 administrative exhaustion” when later court action would cause “undue prejudice” in the form of

17 “an indefinite [administrative] timeframe” and, as described above, “irreparable harm if unable to

18 secure immediate judicial consideration.” McCarthy v. Madigan, 503 U.S. 140, 146-47 (1992)

19 (superseded by statute as recognized by Woodford v. Ngo, 548 U.S. 81, 84-85 (2006)). Further,

20 an administrative remedy is inadequate here since an agency hearing officer lacks “institutional 21 competence” to determine “the constitutionality of a statute.” Id. at 147-48.16 Under similar

22 circumstances, a court has applied these factors and found that a state need not exhaust the

23 administrative process to initiate a legal action to prevent the federal government from penalizing

24 it for failing to meet certain federal funding conditions. Hodges v. Shalala, 121 F. Supp. 2d 854,

25

26 16 Defendants address only the third exception to administrative exhaustion: “where the
27 administrative body is shown to be biased or has otherwise predetermined the issue.” McCarthy, 503 U.S. at 148; see MTD at 23 n.8. Defendants’ repeated statements about the reach of Section
28 1373 created a certain legal conflict here, and in any event, the two other exceptions apply. 22
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1 870 (D.S.C. 2000) (finding harm of incurred penalties, the constitutionality of a statute at issue,

2 and the agency decision was “somewhat of a foregone conclusion”).

3

Third, as Defendants concede, see Pl. RJN, Ex. Q at 7, no factual development is necessary

4 to decide whether the State’s laws comply with Section 1373 on their face. Courts routinely and

5 properly decide declaratory judgment actions about a state law’s potential textual conflicts with

6 federal laws without factual development. See, e.g., Pac. Gas, 461 U.S. at 201 (holding

7 declaratory judgment action “need not await” factual development of California’s implementation

8 of the challenged laws since issue was “predominantly legal”); Haw. Newspaper Agency v.

9 Bronster, 103 F.3d 742, 746 (9th Cir. 1996) (deciding issue of federal preemption of state law on

10 its face without “further factual development”). Moreover, there is no requirement that a

11 declaratory relief claim remove all “legal jeopardy,” contra MTD at 23, where the statute itself

12 explicitly makes relief available “whether or not further relief is or could be sought.” 28 U.S.C. §

13 2201; see Medtronic, Inc. v. Mirowski Family Ventures, LLC, 134 S. Ct. 843, 848 (2014);

14 MedImmune, 549 U.S. at 128-29. Defendants’ recent request that the State produce documents in

15 connection to its compliance with Section 1373 is a red herring. See Pl. RJN, Ex. D. Defendants

16 have already “determined” that the Values Act does not comply with their interpretation of

17 Section 1373 by virtue of the State’s failure to provide confirmation that the Values Act does not

18 regulate the exchange of release dates and home addresses to immigration authorities. See Defs.

19 RJN, Exs. N, O.

20

B. The Values Act Complies with Section 1373

21

Defendants also misinterpret both the Values Act and Section 1373 to justify withholding

22 funding from the State. See MTD at 24-27. As an initial matter, the Values Act contains a

23 savings clause that permits compliance with all aspects of Section 1373, Cal. Gov’t Code §

24 7284.6(e), meaning the Values Act complies with Section 1373 on its face. See Chamber of

25 Commerce of U.S. v. Whiting, 563 U.S. 582, 592 (2011) (the “authoritative statement” of a statute

26 is its plain text, including its savings clause). Accordingly, the Values Act does not prohibit the

27 disclosure of a name for the purpose of making an inquiry about a person’s immigration status

28 with governmental entities. Contra MTD at 26. 23
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1

Furthermore, the Values Act provisions regulating the exchange of release dates and

2 “personal information,” Cal. Gov’t Code § 7284.6(a)(1)(C)-(D), do not violate Section 1373

3 because these provisions do not restrict the exchange of “information regarding . . . citizenship

4 and immigration status.” Defendants, however, urge this Court to go beyond the plain text of the

5 statute and rule contrary to Judge Spero’s decision in Steinle v. City & Cty. of San Francisco, 230

6 F. Supp. 3d 994 (N.D. Cal. 2017), appeal docketed, No. 17-16283 (9th Cir. June 21, 2017) and

7 adopt an expansive interpretation of “information regarding . . . citizenship and immigration

8 status” that encompasses essentially anything about an individual’s “identity.” See MTD at 26.17

9

This Court should reject Defendant’s convoluted and erroneous reading of Section 1373.

10 To start, Defendants claim that the omission of “regarding” in Section 1373(c) suggests its use in

11 Section 1373(a) intended that provision to cover more than just status information. MTD at 25.

12 But the absence of “regarding” in Section 1373(c) can be attributed to that subsection solely

13 covering information in the possession of federal immigration authorities. Federal immigration

14 authorities, presumably, have definitive information about a person’s “citizenship or immigration

15 status,” so there is no need to use the “regarding” qualifier. Cf. MTD at 26. Section 1373(a),

16 however, covers information that state and local governments may have “regarding” the

17 citizenship or immigration status of a person, which is not available in the immigration

18 authorities’ databases, and that is not definitive, but on its face, demonstrates a person’s status.

19 See, e.g., United States v. Quintana, 623 F.3d 1237, 1238 (8th Cir. 2010) (state highway patrol

20 communicated to Customs and Border Patrol information about person who was not in CBP’s

21 database). Defendants also contend that 8 U.S.C. § 1357(g)(10) ties “immigration status” to

22 “presence,” and observe that a dictionary defines “presence” as “being in a certain place and not

23 elsewhere.” MTD at 26. But Section 1357(g)(10) refers to a person “not lawfully present,” in

24 17 Defendants largely ignore Steinle and completely ignore Judge Spero’s holding regarding Section 1373. See MTD at 26. Instead, Defendants rely solely on the California Court of
25 Appeal’s discussion of Section 1373’s legislative history in Bologna v. City & Cty. of San Francisco, 192 Cal. App. 4th 429 (Cal. Ct. App. 2011). Steinle rejected Bologna’s analysis: “the
26 authoritative statement is the statutory text, not the legislative history or any other extrinsic material.” Steinle, 230 F. Supp. 3d at 1014-15 (quoting Exxon Mobil Corp. v. Allapattah Servs.,
27 Inc., 545 U.S. 546, 568 (2005)); see also Arlington Cent. Sch. Dist., 548 U.S. at 304 (dismissing relevance of legislative history when it was the sole support for the position that expert fees were
28 recoverable under the federal law).
24
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1 other words, to one’s “unlawful presence,” which the INA itself defines narrowly as occurring

2 when an individual is “present . . . after the expiration of the period of stay authorized by the

3 Attorney General or is present . . . without being admitted or paroled.” 8 U.S.C. §

4 1182(a)(9)(B)(ii).

5

Moreover, such language does not explain how, as Defendants suggest, release dates, home

6 addresses, or other information about a person’s identity is “regarding” an individual’s

7 immigration status (or unlawful presence). See MTD at 26-27. Because Section 1373’s

8 restrictions directed at state and local governments “alter the usual constitutional balance between

9 the States and the Federal Government, [Congress] must make its intention to do so unmistakably

10 clear in the language of the statute.” Gregory, 501 U.S. at 460-61 (quoting Will, 491 U.S. at 65);

11 see also Bond, 134 S. Ct. at 2089. In Gregory, the Supreme Court applied the “plain statement

12 rule” to “avoid a potential constitutional problem” that would interfere with the “authority of the

13 people of the States to determine the qualifications of their most important government officials.”

14 501 U.S. at 463-64. When it was not clear that Congress intended to include judges within an

15 exception to the federal Age Discrimination in Employment Act, the relevant test was whether

16 “Congress ha[d] made it clear that judges are included” because “it must be plain to anyone

17 reading the Act that it covers judges.” Id. at 467 (emphasis in original). Since it was not clear,

18 the Court determined that the statute did not apply to state judges. Id. In Bond, despite the

19 perpetrator violating the plain text of a federal criminal statute banning “chemical weapons” for

20 non-peaceful purposes, the Court declined to adopt the federal government’s expansive definition

21 of “chemical weapons” that would “alter sensitive federal-state relationships” by transforming

22 “traditionally local criminal conduct into a matter for federal enforcement.” Bond, 134 S. Ct. at

23 2091 (quoting United States v. Bass, 404 U.S. 336, 349-50 (1971)) (quotation marks omitted).

24

Congress did not make Section 1373 “unmistakably clear” that information about a

25 person’s home address or family members is governed by the statute. Notwithstanding the

26 Northern District’s holding in Steinle that “no plausible reading of ‘information regarding . . .

27 citizenship or immigration status’ encompasses the release date of an undocumented inmate,” 230

28 F. Supp. 3d at 1015, Defendants also argue that “release dates” fall within the scope of Section 25
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Case 3:17-cv-04701-WHO Document 80 Filed 01/30/18 Page 36 of 41

1 1373 because of their relevance to the federal government’s responsibilities to take inadmissible

2 immigrants into custody upon release by the State. MTD at 26-27 (citing 8 U.S.C. § 1226).

3 However, while a person’s criminal offense, which law enforcement may disclose under the

4 Values Act, Cal. Gov’t Code § 7284.6(b)(2), may alter the immigration status of a person, an

5 individual does not become more or less “lawfully present” upon release from state custody. See

6 8 U.S.C. §§ 1226(c), 1231(a) (setting procedures for when immigration authorities may take a

7 person into custody, without connecting a person’s lawful status to his or her release date).

8

The Court need not look further than other provisions within the Illegal Immigrant Reform

9 and Immigrant Responsibility Act of 1996, Pub. L. No. 104-208, § 642, 110 Stat. 3009-546,

10 which created Section 1373, to find language better suited to cover the type of information that

11 Defendants now seek to inject into Section 1373. If Congress wanted Section 1373 to prohibit

12 restrictions on the exchange of all information about an individual’s identity, it could have used

13 the “any information which relates to an alien” language from Section 384 of the same Act (8

14 U.S.C. § 1367) (emphasis added), which generally prohibits disclosure of such information.

15 Other provisions of the Act similarly demonstrate that Congress knew how to use precise

16 terminology when it wished to cover information about a person’s address, nationality, or 17 associations.18 As the Steinle court concluded: “if the Congress that enacted [the Act] had

18 intended to bar all restrictions of communication between local law enforcement and federal

19 immigration authorities, or specifically to bar restrictions of sharing inmates’ release dates, it

20 could have included such language in the statute.” 230 F. Supp. 3d at 1015 (emphasis in

21 original); see also Custis v. United States, 511 U.S. 485, 492 (1994) (Congress’s use of specific

22 language in one provision of a statute demonstrates that “when Congress intended to” include that

23 language, “it knew how to do so”).

24

25 18 See, e.g., id. § 302, 8 U.S.C. § 1225(a)(5) (permitting immigration officers to ask applicants “any information . . . regarding the purposes and intentions of the applicant . . . including the
26 applicant’s intended length of stay . . . and whether the applicant is inadmissible”); id. § 241, 8 U.S.C. § 1231(a)(3)(C) (requiring an immigrant “to give information . . . about the alien’s
27 nationality, circumstances, habits, associations, and activities, and other information the Attorney General considers appropriate”); id. § 414, 8 U.S.C. § 1360(c)(2) (requiring the Social Security
28 Commissioner to provide “information regarding the name and address of the alien”).
26
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1

C. Enforcing Section 1373 Against the Values Act Would Constitute

Unconstitutional Commandeering

2

3

Defendants’ enforcement of Section 1373 against the Values Act presents another problem:

4 it commandeers the State’s oversight of governmental employees and handling of its residents’

5 confidential personal information in violation of the Tenth Amendment. Defendants cannot 6 evade the Tenth Amendment commandeering analysis by framing the issue as a Spending Clause 7 question of a “condition on receipt of federal funds that the State and its subdivisions are free to

8 accept or reject.” MTD at 28. Congress did not condition JAG (or COPS) funding on 9 compliance with any aspect of Section 1373. Rather, Defendants have invoked their ability to 10 require compliance with “applicable federal laws” as their basis for imposing the Section 1373 11 Conditions for JAG and COPS. See id. at 5, 7. Therefore, the Section 1373 Conditions are

12 confined to what the “applicable federal law” requires or prohibits to the extent the Tenth 13 Amendment allows, and nothing more. If the conditions are not so limited, then Defendants 14 certainly lack authority to impose them. See Cty. of Santa Clara, 250 F. Supp. 3d at 531-32.

15

Thus, the relevant question for this Court is whether Section 1373 can be enforced against

16 the State’s statutes under the Tenth Amendment of the Constitution. The answer is no. Both New

17 York v. United States, 505 U.S. 144 (1992), and Printz v. United States, 521 U.S. 898 (1997),

18 hold that the federal government may not “commandeer” state and local governments and 19 officials by “directly compelling them to enact and enforce a federal regulatory program.” New 20 York, 505 U.S. at 162; see also Printz, 521 U.S. at 937. Printz, which considered the 21 constitutionality of the Brady Act’s mandates to law enforcement officers, is particularly 22 informative.19 The Printz Court rejected Defendants’ argument that “important purposes” of a 23 statute, in this case, the “express goals of the INA,” MTD at 28, can prevent a Tenth Amendment 24 violation where “the whole object of the law [is] to direct the functioning of the state executive.”

25 521 U.S. at 931-32 (emphasis in original). Printz also establishes that the intrusion on state

26 19 Printz does not undermine the State’s position (contra MTD at 30) just because the Court
27 distinguished the Brady Act’s background check mandate from statutes that require the provision of information. The Supreme Court expressly left open the question of whether such statutes
28 violate the Tenth Amendment. 521 U.S. at 918. 27
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1 sovereignty is “worse” when the federal government strips away at a State’s discretion to make

2 policies in areas “within [its] proper sphere of authority,” id. at 927-28; and the Constitution’s

3 objectives of preserving local accountability are undermined when a federal directive forces state

4 and local governments to absorb costs and take the blame for implementing a federal program.

5 Id. at 920, 930; see also Koog v. United States, 79 F.3d 452, 457-60 (5th Cir. 1996) (“Whatever

6 the outer limits of state sovereignty may be, it surely encompasses the right to set the duties of

7 office for state-created officials and to regulate the internal affairs of governmental bodies.”).

8

The same concerns that animated Printz apply to Defendants’ enforcement of Section 1373

9 against the Values Act. The “whole object” of Defendants’ interpretation of Section 1373 is to

10 command the State to allow the unfettered use of its resources and personnel to provide

11 information for federal immigration enforcement purposes. Printz, 521 U.S. at 932. As with the

12 Brady Act, Defendants’ enforcement of Section 1373 here to information that is not “available to

13 the public,” see MTD at 24, regulates “information that belongs to the State and is available to

14 them only in their official capacity.” Printz, 521 U.S. at 932 n.17. Just as local law enforcement

15 officers were the face of public disapproval for standing between a gun purchaser and a gun with

16 the Brady Act, id. at 930, enforcing Section 1373 against the confidentiality provisions in the

17 Values Act would cause the State and its law enforcement to be unjustly blamed if witnesses and

18 victims are less inclined to report crimes, and relationships between immigrant communities and

19 law enforcement are strained as a result. See FAC ¶¶ 41, 119. In addition, the enforcement of

20 Section 1373 against the Values Act intrudes on the State’s discretion to make nuanced decisions

21 regulating the specific circumstances where personal information and release dates are protected

22 from disclosure. See Cal. Gov’t Code § 7284.6(a)(1)(C)-(D). Finally, like the mandated

23 background checks in Printz, the prohibition on commandeering applies with maximum force

24 because Defendants’ interpretation of Section 1373 directs the functioning of state and local law

25 enforcement “within their proper sphere of authority,” i.e. determining how best to address crime

26 and public safety. Printz, 521 U.S. at 928; see also United States v. Morrison, 529 U.S. 598, 618

27 (2000) (“[W]e can think of no better example of the police power, which the Founders denied the

28 National Government and reposed in the States, than the suppression of violent crime and 28
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Case 3:17-cv-04701-WHO Document 80 Filed 01/30/18 Page 39 of 41

1 vindication of its victims.”). No less of a concern here is how “[t]he power of the Federal

2 Government would be augmented immeasurably if it were able to impress into its service—and at

3 no cost to itself —the police officers of the 50 States.” Printz, 521 U.S. at 922.

4

Printz is more analogous to Section 1373’s application than the unsuccessful challenge to

5 the Driver’s Privacy Protection Act’s (“DPPA”) regulation on “handling of information” in Reno

6 v. Condon, 528 U.S. 141 (2000). See MTD at 29. First, Reno allowed Congress to regulate states

7 as operators of databases and sellers of information in the same manner that Congress regulates

8 private entities. 528 U.S. at 151. Here, Section 1373 is not “generally applicable,” but rather a

9 specific prohibition and command on the actions of state and local governments to allow use of

10 their resources and personnel for a federal program, an issue that the Supreme Court explicitly

11 left open in Reno. See id. Second, the DPPA did not encroach on states’ sovereignty by

12 expressly permitting the disclosure of information “[f]or use by any government agency,

13 including any court or law enforcement agency, in carrying out its functions.” 18 U.S.C. §

14 2721(b)(1). Third, by limiting the State from protecting the confidentiality of its residents, the

15 Defendants here do what the statute in Reno did not: “require state officials to assist in the

16 enforcement of federal statutes regulating private individuals.” Reno, 528 U.S. at 151.20

17

Although two federal courts have upheld Section 1373 against facial constitutional

18 challenges, neither ruling is dispositive here, and both underscore the significant concerns about

19 extending Section 1373 to conflict with the Values Act. In City of New York v. United States, 179

20 F.3d 29 (2d Cir. 1999), the Second Circuit held that Section 1373 was facially constitutional, but

21 recognized:

22

The City’s concerns [about confidentiality] are not insubstantial. The obtaining of pertinent

information, which is essential to the performance of a wide variety of state and local

23

governmental functions, may in some cases be difficult or impossible if some expectation

of confidentiality is not preserved. Preserving confidentiality may in turn require that state

24

and local governments regulate the use of such information by their employees.

25

26 20 Similarly, Freilich v. Upper Chesapeake Health, Inc., 313 F.3d 205 (4th Cir. 2002), see MTD at 29, is not availing, where the Fourth Circuit upheld a statute regarding the provision of
27 information because it did not “preempt[] or overrid[e] any State law” that provided greater benefits or protections, requiring nothing more than that “authorized, or provided by [the state’s]
28 own legislative command.” Id. at 214. The opposite is true here. 29
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Case 3:17-cv-04701-WHO Document 80 Filed 01/30/18 Page 40 of 41

1 179 F.3d at 36. The Second Circuit acknowledged the Tenth Amendment may limit Section 1373

2 from being “an impermissible intrusion on state and local power to control information obtained

3 in the course of official business or to regulate the duties and responsibilities of state and local

4 governmental employees,” but did not consider those arguments in earnest because the city’s

5 policy promoted “non-cooperation while allowing City employees to share freely the information

6 in question with the rest of the world.” See id. at 37. The district court in Chicago also expressed

7 concern with Section 1373’s “practical” impact of limiting state and local governments’ ability

8 “to decline to administer or enforce a federal regulatory program” and “extricate their state or

9 municipality from involvement in a federal program.” 264 F. Supp. 3d at 949.

10

Conversely, the Values Act and Amended TRUST Act regulate the sharing of release dates

11 and “personal information” when that information is not “available to the public.” Unlike in City

12 of New York, the State is not selectively restricting the exchange of confidential information with

13 immigration authorities to “frustrate[] federal programs.” 179 F.3d at 35. Therefore, the federal

14 government’s command that state and local governments allow the use of “information that

15 belongs to the State and is available to them only in their official capacity” to be disclosed to

16 immigration authorities, even when disclosure is similarly prohibited to everyone else, violates

17 the Supreme Court’s holding in Printz. 521 U.S. at 932 n.17.

18

CONCLUSION

19

For the foregoing reasons, California requests that Defendants’ Motion be denied in full.

20

21

22

23

24

25

26

27

28 30
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Case 3:17-cv-04701-WHO Document 80 Filed 01/30/18 Page 41 of 41

1 Dated: January 30, 2018

Respectfully Submitted,

2

XAVIER BECERRA

Attorney General of California

3

ANGELA SIERRA

Senior Assistant Attorney General

4

SATOSHI YANAI

Supervising Deputy Attorney General

5

/s/ Lee Sherman

6

/s/ Lisa C. Ehrlich

/s/ Sarah E. Belton

7

8

LEE SHERMAN

LISA C. EHRLICH

9

SARAH E. BELTON

Deputy Attorneys General

10

Attorneys for Plaintiff

State of California

11

12

13

14

15

16

17

18

19

20

21

22

23

24

25

26

27

28 31
Plaintiff’s Opposition to Defendants’ Motion to Dismiss (17-cv-4701)

 
 Case 3:17-cv-04701-WHO Document 83 Filed 02/06/18 Page 1 of 25

1 CHAD A. READLER

Acting Assistant Attorney General 2 ALEX G. TSE

3 United States Attorney JOHN R. TYLER

4 Assistant Director

W. SCOTT SIMPSON (Va. Bar #27487)

5 Senior Trial Counsel

6

ANTONIA KONKOLY Trial Attorney

7 Department of Justice, Room 7210 Civil Division, Federal Programs Branch

8 20 Massachusetts Avenue, NW

Washington, D.C. 20530 9 Telephone: (202) 514-3495

10

Facsimile: E-mail:

(202) 616-8470 scott.simpson@DOJ.gov

11 COUNSEL FOR DEFENDANTS JEFFERSON B. SESSIONS III, Attorney

12 General of the United States; ALAN R.

HANSON, Principal Deputy Assistant Attorney 13 General; and U.S. DEPARTMENT OF JUSTICE

14

15

IN THE UNITED STATES DISTRICT COURT

16

FOR THE NORTHERN DISTRICT OF CALIFORNIA

17

SAN FRANCISCO DIVISION

18 STATE OF CALIFORNIA, ex rel. XAVIER

19 BECERRA, Attorney General of the State of California,

20

Plaintiff,

21

v.

22 JEFFERSON B. SESSIONS III, Attorney 23 General of the United States, et al.,

No. 3:17-cv-04701-WHO

DEFENDANTS’ REPLY MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF THEIR MOTION TO DISMISS

Date: Time:

February 28, 2018 2:00 p.m.

24

Defendants.

25

26

27

28

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Case 3:17-cv-04701-WHO Document 83 Filed 02/06/18 Page 2 of 25

1

TABLE OF CONTENTS

2 INTRODUCTION .......................................................................................................................... 1

3 ARGUMENT .................................................................................................................................. 2

4 I. THE CHALLENGED IMMIGRATION-RELATED BYRNE JAG CONDITIONS

ARE LAWFUL ................................................................................................................... 2 5

A. The Access and Notice Conditions Are Authorized by Statute ................................ 2 6

B. The Challenged Conditions Comply with the Spending Clause ............................. 4 7

1. The Notice and Access Conditions are Unambiguous...................................... 5 8

2. The Conditions Are Related to the Byrne JAG Program.................................. 6 9

C. Plaintiff’s APA Claims Must Be Dismissed for Additional Reasons....................... 8 10

1. The APA Claims Do Not Challenge Final Agency Action ............................... 8 11

2. The Challenged Conditions Are Not Arbitrary or Capricious ........................ 10 12

II. California’s Claim for a Declaration Regarding its Statutes’ Compliance with

13

Section 1373 Should Be Dismissed .................................................................................. 12

14

A. The Claim Regarding Compliance with Section 1373 Is Non-Justiciable .............. 12

15

1. California Lacks Standing to Seek a Ruling Regarding Any State

16

Statute Other Than the Values Act................................................................... 12

17

2. California’s Request for a Ruling Regarding the Values Act Is Unripe ........... 13

18

B. Alternatively, the Court Should Dismiss California’s Claim for

19

Declaratory Relief Regarding the Values Act on Its Merits ................................... 14

20 III. SECTION 1373 IS CONSISTENT WITH THE TENTH AMENDMENT ..................... 16

21 CONCLUSION ............................................................................................................................. 17

22

23

24

25

26

27

28

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1

TABLE OF AUTHORITIES

2 CASES

PAGE(S)

3 Abbott Labs. v. Gardner,

4 387 U.S. 136 (1967)..................................................................................................................... 9

5 Agency for Int’l Dev. v. All. for Open Soc’y Int’l, Inc.,

6 570 U.S. 205 (2013)................................................................................................................. 2, 4

7 All. for Open Soc’y Int’l, Inc. v. U.S. Agency for Int’l Dev.,

8 651 F.3d 218 (2d Cir. 2011) ........................................................................................................ 4

9 All. for the Wild Rockies v. Peña,

10 865 F.3d 1211 (9th Cir. 2017) ................................................................................................... 11

11 Arizona v. United States,

12 567 U.S. 387 (2012)......................................................................................................... 1, 11, 16

13 Arlington Cent. Sch. Dist. Bd. of Educ. v. Murphy,

14 548 U.S. 291 (2006)..................................................................................................................... 4

15 Bennett v. Spear,

16 520 U.S. 154 (1997)..................................................................................................................... 8

17 Citizens to Preserve Overton Park, Inc. v. Volpe,

18 401 U.S. 402 (1971)................................................................................................................... 10

19 City of New York v. United States,

20 179 F.3d 29 (2d Cir. 1999) ........................................................................................................ 17

21 City of San Diego v. Whitman,

22 242 F.3d 1097 (9th Cir. 2001) ..................................................................................................... 9

23 Clinton v. City of New York,

24 524 U.S. 417 (1998)..................................................................................................................... 3

25 Columbia Riverkeeper v. U.S. Coast Guard,

26 761 F.3d 1084 (9th Cir. 2014) ..................................................................................................... 9

27

28

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1 Commodity Futures Trading Comm’n v. Monex Deposit Co.,

2 824 F.3d 690 (7th Cir. 2016) ....................................................................................................... 9

3 Davis v. Michigan Dep’t of Treasury,

4 489 U.S. 803 (1989)................................................................................................................... 14

5 FCC v. Fox Television Stations, Inc.,

6 556 U.S. 502 (2009)................................................................................................................... 11

7 Freilich v. Upper Chesapeake Health, Inc.,

8 313 F.3d 205 (4th Cir. 2002) ..................................................................................................... 17

9 FTC v. Standard Oil Co. of Cal.,

10 449 U.S. 232 (1980)................................................................................................................... 10

11 Gregory v. Ashcroft,

12 501 U.S. 452 (1991)............................................................................................................. 15, 16

13 Holistic Candlers & Consumers Ass’n v. FDA,

14 664 F.3d 940 (D.C. Cir. 2012) ..................................................................................................... 9

15 Impro Prods., Inc. v. Block,

16 722 F.2d 845 (D.C. Cir. 1983) ..................................................................................................... 8

17 Indep. Acceptance Co. v. California,

18 204 F.3d 1247 (9th Cir. 2000) ................................................................................................... 11

19 Invention Submission Corp. v. Rogan,

20 357 F.3d 452 (4th Cir. 2004) ....................................................................................................... 8

21 Mayweathers v. Newland,

22 314 F.3d 1062 (9th Cir. 2002) ................................................................................................. 6, 8

23 Nat’l Ass’n of Home Builders v. Norton,

24 415 F.3d 8 (D.C. Cir. 2005)......................................................................................................... 9

25 Nat’l Fed’n of Indep. Bus. v. Sebelius,

26 567 U.S. 519 (2012)................................................................................................................... 17

27

28

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Case 3:17-cv-04701-WHO Document 83 Filed 02/06/18 Page 5 of 25

1 New York v. United States,

2 505 U.S. 144 (1992)..................................................................................................................... 5

3 Norton v. S. Utah Wilderness All.,

4 542 U.S. 55 (2004)....................................................................................................................... 9

5 Or. Nat. Desert Ass’n v. U.S. Forest Serv.,

6 465 F.3d 977 (9th Cir. 2006) ....................................................................................................... 8

7 Pierce v. SEC,

8 786 F.3d 1027 (D.C. Cir. 2015) ................................................................................................. 10

9 Pollution Denim & Co. v. Pollution Clothing Co.,

10 No. CV 07-05208 MMM, 2009 WL 10672270 (C.D. Cal. Feb. 9, 2009) ................................. 12

11 Preap v. Johnson,

12 831 F.3d 1193 (9th Cir. 2016) ................................................................................................... 14

13 Printz v. United States,

14 521 U.S. 898 (1997)................................................................................................................... 16

15 Providence Yakima Med. Ctr. v. Sebelius,

16 611 F.3d 1181 (9th Cir. 2010) ................................................................................................... 10

17 Quechan Tribe of Ft. Yuma Indian Reservation v. U.S. Dep’t of the Interior,

18 927 F. Supp. 2d 921 (S.D. Cal. 2013),

19 aff’d, 673 F. App’x 709 (9th Cir. 2016)..................................................................................... 10

20 Rattlesnake Coal. v. EPA,

21 509 F.3d 1095 (9th Cir. 2007) ..................................................................................................... 8

22 Reno v. Condon,

23 528 U.S. 141 (2000)................................................................................................................... 17

24 Rust v. Sullivan,

25 500 U.S. 173 (1991)..................................................................................................................... 5

26 S. Dakota v. Dole,

27 483 U.S. 203 (1987)................................................................................................................. 4, 5

28

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1 San Francisco Herring Ass’n v. U.S. Dep’t of Interior,

2 683 F. App’x 579 (9th Cir. 2017) ................................................................................................ 9

3 Steel Co. v. Citizens for a Better Env’t,

4 523 U.S. 83 (1998)..................................................................................................................... 12

5 Steinle v. San Francisco,

6 230 F. Supp. 3d 994 (N.D. Cal. 2017) ....................................................................................... 16

7 Texas v. United States,

8 523 U.S. 296 (1998)................................................................................................................... 13

9 Thomas v. Anchorage Equal Rights Comm’n,

10 220 F.3d 1134 (9th Cir. 2000) ................................................................................................... 14

11 United States v. Elkins,

12 683 F.3d 1039 (9th Cir. 2012) ..................................................................................................... 7

13 United States v. Kebodeaux,

14 570 U.S. 387 (2013)..................................................................................................................... 7

15 Yates v. United States,

16 --- U.S. ---, 135 S. Ct. 1074 (2015).............................................................................................. 4

17

18 STATUTES

19 5 U.S.C. § 551 .................................................................................................................................. 8

20 5 U.S.C. § 704 .................................................................................................................................. 8

21 8 U.S.C. § 1226 .................................................................................................................... 7, 11, 14

22 8 U.S.C. § 1227 .................................................................................................................... 7, 10, 17

23 8 U.S.C. § 1228 .............................................................................................................................. 17

24 8 U.S.C. § 1231 .......................................................................................................................... 7, 14

25 8 U.S.C. § 1252c .............................................................................................................................. 7

26 8 U.S.C. § 1324 ................................................................................................................................ 7

27 8 U.S.C. § 1357 ........................................................................................................................ 11, 17

28

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1 8 U.S.C. § 1373 ....................................................................................................................... passim

2 20 U.S.C. § 1411 .............................................................................................................................. 4

3 20 U.S.C. § 6332 .............................................................................................................................. 4

4 20 U.S.C. § 6333 .............................................................................................................................. 4

5 34 U.S.C. § 10102 .................................................................................................................. 3, 4, 10

6 34 U.S.C. § 10152 ...................................................................................................................... 6, 10

7 34 U.S.C. § 10153 ........................................................................................................................ 2, 3

8 34 U.S.C. § 10251 ...................................................................................................................... 6, 10

9 34 U.S.C. § 20901 ............................................................................................................................ 7

10 34 U.S.C. § 20927 ............................................................................................................................ 7

11 42 U.S.C. § 5301 .............................................................................................................................. 4

12 Cal. Gov’t Code § 7284.2 .............................................................................................................. 17

13 Cal. Gov’t Code § 7284.6 ........................................................................................................ 14, 15

14 Cal. Gov’t Code §§ 7284-7284.12 ................................................................................................. 12

15

16 LEGISLATIVE MATERIALS

17 H.R. Rep. No. 109-233 (2005)......................................................................................................... 3

18

19

20

21

22

23

24

25

26

27

28

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1

INTRODUCTION

2

Law enforcement in this country is a cooperative endeavor. Criminal acts often implicate

3 the jurisdiction of more than one agency, and thus local, state, tribal, and federal officials work

4 together in a variety of ways to fight crime and ensure public safety. Not surprisingly, then,

5 federal law often contemplates, and is premised upon, such cooperation. This is true for the

6 Immigration and Nationality Act, and it is true for the Edward Byrne Memorial Justice Assistance

7 Grant Program (“Byrne JAG Program”). Both statutes explicitly contemplate and encourage

8 effective law enforcement by promoting cooperation between the Federal Government on the one

9 hand and local, state, and tribal governments on the other. Unfortunately, California has in recent

10 years adopted policies of non-cooperation with respect to law enforcement involving aliens who

11 have committed serious crimes. And in this suit, California seeks to further that policy by

12 claiming that the Federal Government cannot condition its own law enforcement grants on such

13 cooperation—even when the express statutory purpose of that funding is to promote cooperation.

14

As explained in detail in previous briefing in this case, at the core of this suit are three

15 conditions that the DOJ has notified applicants that Fiscal Year (“FY”) 2017 Byrne JAG awards

16 will include. Specifically, the challenged conditions will require grantees to (1) have a policy of

17 providing DHS with advance notice of the scheduled release date of certain individuals held in

18 state or local correctional facilities (the “Notice Condition”); (2) have a policy permitting federal

19 agents to access state or local correctional facilities for certain immigration enforcement purposes

20 (the “Access Condition”); and (3) comply with a federal statute, 8 U.S.C. § 1373, that prohibits

21 state and local government and law enforcement entities from restricting certain communications

22 with DHS (the “Section 1373 Condition”). See Dkt. No. 71-1 (Defendants’ Request for Judicial

23 Notice (“Def. RJN”)), Ex. B (2017 Greenville Award) ¶¶ 53, 55, 56. The call for the modest

24 intergovernmental law enforcement cooperation embodied in these three grant conditions follows

25 from recognition that “[c]onsultation between federal and state officials is an important feature of

26 the immigration system.” Arizona v. United States, 567 U.S. 387, 411 (2012). And the conditions

27 are consonant with the Byrne JAG Program’s purposes of ensuring that grantees “report such data

28

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1 … and information … as the Attorney General may reasonably require” and undertake

2 “appropriate coordination with affected agencies.” 34 U.S.C. § 10153(a)(4), (5).

3

California’s suit nevertheless attacks the prospective imposition of these conditions, and

4 seeks a declaration that the State complies with Section 1373. The Amended Complaint warrants

5 dismissal in its entirety, as the claims set forth therein contravene clear statutory language

6 authorizing the Department to condition Byrne JAG funding; ignore the close relationship

7 between the grant conditions, federal law enforcement prerogatives, and the purposes of the

8 Byrne JAG Program; and otherwise suffer from various legal defects. Further, California’s

9 alternative request for an injunction prohibiting any DOJ finding that any of several state laws

10 violate the Section 1373 Condition in either the Byrne JAG Program or two other programs fails to

11 present a justiciable controversy—and, in any event, further fails on its merits, as set forth below.

12

At bottom, California cannot sustain its counterintuitive theory that Byrne JAG applicants

13 can insist on their entitlement to a federal law enforcement grant even as they refuse to provide

14 basic cooperation on law enforcement related to criminal aliens, which the Department has

15 identified as a federal priority and which plainly intersects with criminal justice under the

16 framework of the INA. Cf. Agency for Int’l Dev. v. All. for Open Soc’y Int’l, Inc., 570 U.S. 205,

17 214 (2013) (“As a general matter, if a party objects to a condition on the receipt of federal

18 funding, its recourse is to decline the funds.”). For all of these reasons, and as discussed in more

19 detail below, the Court should dismiss this action in its entirety.

20

ARGUMENT

21 I. The Challenged Immigration-Related Byrne JAG Conditions Are Lawful

22

A. The Access and Notice Conditions Are Authorized by Statute

23

California’s first contention is that DOJ lacks the statutory authority to impose either the

24 Access or the Notice Condition,1 because there is “no provision of the JAG authorizing statute

25 that affirmatively supports the imposition” of these conditions. Dkt. No. 80 (“Opp.”) at 5. But the

26

27 1 California makes no such argument with respect to the Section 1373 condition. Thus, California
concedes that this condition is indeed within the statutory parameters of the Byrne JAG Program.

28

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1 relevant question is not whether the JAG authorizing statute requires the imposition of the Notice

2 and Access Conditions. Rather, it is whether the statute delegates to the DOJ the authority to add

3 conditions to Byrne JAG funds in order to further Departmental policies and priorities. As

4 explained in Defendants’ opening memorandum, see Dkt. No. 77 (“Def. Mem.”) at 9, Congress

5 may, of course, delegate to the executive branch the authority to attach specific conditions on the

6 receipt of federal funds, just as it may delegate other types of legislative authority. See, e.g.,

7 Clinton v. City of New York, 524 U.S. 417, 488 (1998) (“Congress has frequently delegated the

8 President the authority to spend, or not to spend, particular sums of money.”) (citation omitted).

9

Here, as relevant to the administration of the Byrne JAG Program, Congress expressly

10 authorized the Department to “plac[e] special conditions on all grants,” 34 U.S.C. § 10102(a)(6),

11 to “determin[e] priority purposes for formula grants,” id. (emphasis added), and to ensure that

12 grantees “comply with . . . all other applicable Federal laws.” Id. § 10153(a)(5)(D); see also H.R.

13 Rep. No. 109-233, at 101 (2005). These capacious delegations of authority plainly empower the

14 Department to impose the Notice and Access Conditions to promote intergovernmental law

15 enforcement cooperation, so that grantee policies do not impair federal policies.

16

In an attempt to evade this conclusion, California contends that, as it is used in 34 U.S.C.

17 § 10102(a)(6), the phrase “special conditions” constitutes a “narrow” “term of art” that is

18 necessarily—and strictly—limited in scope to such conditions as may be placed “on particular

19 high-risk grantees that have struggled or failed to comply with grant conditions in the past,” Opp.

20 at 8 (citing, inter alia, two expired regulations), and DOJ must accordingly award all appropriated

21 Byrne JAG funds to any entity that merely satisfies certain “ministerial requirements and

22 certifications” set forth by the Byrne JAG authorizing statute. Preliminarily, however,

23 California’s purported limitation has no support in the Byrne JAG authorizing statute itself.

24 Further, as Defendants have explained at length, see Def. Mem. at 5-6, the Department has long

25 employed its “special conditions” authority to impose a number of conditions applicable to all

26 grantees—including, to cite but two recent examples, limitations on research using human

27 subjects, and an “American-made” requirement for body armor purchases. Def. RJN, Ex. A ¶¶

28

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1 30, 39; see generally Def. Mem. at 5-6 (discussing other conditions); Def. RJN, Ex. A (setting

2 forth more than 50 “special conditions” of general applicability). California fails to explain how

3 its narrow reading of “special circumstances” is compatible with any of the across-the-board

4 conditions the Department has historically imposed pursuant to this delegated authority.2

5

Finally, California argues that were the Court to find delegated authority for the Notice

6 and Access Conditions, it would necessarily bestow Defendants with “unfettered discretion” to

7 impose any condition(s) at all on the receipt of Byrne JAG funds, no matter how remote or

8 irrational. Id. This argument, too, is a straw man. The Byrne JAG Program is indisputably an

9 exercise of the Congressional Spending authority. Thus, in exercising its delegated authority to

10 impose “special conditions on,” and “determin[e] priority purposes for,” Bryne JAG grants, 34

11 U.S.C. § 10102(a)(6), there is no dispute that the Department must adhere to the Spending

12 Clause. While the spending authority is undoubtedly “broad,” Arlington Cent. Sch. Dist. Bd. of

13 Educ. v. Murphy, 548 U.S. 291, 296 (2006), it is “of course not unlimited,” S. Dakota v. Dole, 483

14 U.S. 203, 207 (1987) (citation omitted). However, as set forth below, the Notice and Access

15 Conditions fall easily within the scope of the Spending authority.3

16

B. The Challenged Conditions Comply with the Spending Clause

17

The Spending Clause authorizes Congress—or, where relevant, its agency delegee—may

18 “further broad policy objectives by conditioni ng receipt of federal moneys upon compliance by the

19 recipient with federal statutory and administrative directives.” Dole, 483 U.S. at 206 (emphasis

20

21 2 To the extent California contends that the use of the “special conditions” term in other contexts requires
its ahistorical interpretation here, the Supreme Court has “several times affirmed” that “identical language
22 may convey varying content when used in different statutes, sometimes even in different provisions of the
same statute.” Yates v. United States, --- U.S. ---, 135 S. Ct. 1074, 1082 (2015) (collecting cases).
23 3 Because this is so, California’s contentions that the Notice and Access Conditions run afoul of federalism 24 principles, see Opp. at 5, 7, are similarly misplaced, as “[i]t is well settled that Congress is entitled to
further policy goals indirectly through its spending power that it might not be able to achieve by direct
25 regulation.” All. for Open Soc’y Int’l, Inc. v. U.S. Agency for Int’l Dev., 651 F.3d 218, 230 (2d Cir. 2011),
aff’d sub nom. Agency for Int’l Dev. v. All. for Open Soc’y Int’l, Inc., 570 U.S. 205 (2013). Indeed, federal
26 grants routinely further federal policy in areas within the traditional purview of state or local governments,
such as education and community development. See, e.g., 20 U.S.C. §§ 1411, 6332-33 (grants under the
27 Individuals with Disabilities Education Act and Elementary and Secondary Education Acts, respectively);
42 U.S.C. § 5301 et seq. (Community Development Block Grant Program).

28

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1 added); cf., e.g., Rust v. Sullivan, 500 U.S. 173, 194 (1991) (“[W]hen the Government

2 appropriates public funds to establish a program it is entitled to define the limits of that

3 program.”). Consistent with these principles (and as relevant to this suit), any terms attached to the

4 receipt of federal funds must be “unambiguous[],” Dole, 483 U.S. at 207, and also bear “some

5 relationship” to “the purpose of the federal spending,” New York v. United States, 505 U.S. 144,

6 167 (1992). The challenged conditions easily satisfy these standards.

7

1. The Notice and Access Conditions are Unambiguous

8

There is nothing “ambiguous” about the Notice and Access Conditions, and California can

9 determine whether to accept FY 17 Byrne JAG funds “knowingly, cognizant of the consequences

10 of [its] participation.” Dole, 483 U.S. at 207 (citation omitted). As Defendants have explained, both

11 conditions are clearly and straightforwardly stated, and do not plausibly fail to give the State

12 adequate notice of the terms to which it would need to commit in order to participate in the FY 17

13 Byrne JAG Program. See Def. Mem. at 12-13 (discussing the challenged grant terms in detail).

14

Further, although California complains that there is no “federal statute that provides

15 guidance on the Access or Notification Conditions,” Opp. at 13, this argument ignores the

16 opportunity for administrative consultation that the Byrne JAG Program invites. The FY 2017

17 Byrne JAG solicitation invited any prospective grantee with a question about “any . . .

18 requirement of this solicitation” to contact the Office of Justice Program’s (“OJP”) Response

19 Center (customer service center) by telephone, email, fax, or online chat. See Dkt. No. 1-16 at 2.

20 A prospective grantee could also contact the appropriate “State Policy Advisor”—that is, a

21 specific, named OJP employee assigned to work with jurisdictions within a specified

22 geographical area. Id. Beyond this invitation in the FY 2017 solicitation, in each of the challenged

23 conditions that appears in the award document for a prospective grantee to consider accepting, the

24 Department has invited submission of “[a]ny questions about the meaning or scope of this

25 condition . . . before award acceptance.” Def. RJN, Ex. B (2017 Greenville Award) ¶¶ 53, 55, 56.

26 Indeed, while California complains that “[t]he Access Condition … fails to provide … notice of

27 whether a law or policy that requires local jurisdictions to inform inmates of their right to have a

28

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1 lawyer present or to decline an interview with ICE would violate the condition,” Opp. at 13, had

2 California simply availed itself of this consultation process, litigation of this issue could have been

3 avoided altogether. As Defendants would have made clear to California, the Department does not

4 understand either the Notice or the Access Condition to forbid a jurisdiction from informing

5 detainees, where required by law, that they may choose not to meet with immigration authorities.

6

Accordingly, and for the additional reasons set forth in Defendants’ motion, see Def.

7 Mem. at 11-13, the Notice and Access Conditions satisfy the Dole clear statement rule.

8

2. The Conditions Are Related to the Byrne JAG Program

9

California also argues that the Notice, Access, and Section 13734 Conditions “do not have

10 a sufficient nexus” to the goals of the Byrne JAG Program. Opp. at 10. But this aspect of Dole

11 does not impose an “exacting standard”:

12

The Supreme Court has suggested that federal grants conditioned on compliance

with federal directives might be illegitimate if the conditions share no relationship

13

to the federal interest in particular national projects or programs. This possible

ground for invalidating a Spending Clause statute, which only suggests that the

14

legislation might be illegitimate without demonstrating a nexus between the

conditions and a specified national interest, is a far cry from imposing an exacting

15

standard for relatedness.

16 Mayweathers v. Newland, 314 F.3d 1062, 1067 (9th Cir. 2002).

17

The challenged conditions easily satisfy this standard. The Byrne JAG Program’s

18 authorizing statute specifies that Byrne JAG funds are designed to provide resources “for criminal

19 justice,” 34 U.S.C. § 10152(a)(1), defined broadly as “activities pertaining to crime prevention,

20 control, or reduction, or the enforcement of the criminal law, including, but not limited to, police

21 efforts to prevent, control, or reduce crime or to apprehend criminals, … activities of courts

22 having criminal jurisdiction, and related agencies,” id. § 10251(a)(1) (emphasis added). Thus,

23 contrary to California’s view that the Byrne JAG Program’s “overarching goal” is to promote

24 State and local flexibility, Opp. at 6, the program’s overall goals are much broader: to support and

25 strengthen law enforcement and criminal justice. And, because the challenged conditions relate to

26 4 California does not dispute that the Section 1373 Condition, at least, is statutorily authorized. California 27 does not, however, explain how a condition that is concededly within the statutory parameters of the Byrne
JAG Program can be wholly “unrelated” to that Program.

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1 specifically to aliens who are under detention and who have either committed crimes or are

2 suspected of having committed crimes, the conditions plainly intersect with these broad

3 programmatic purposes. Relatedly, the INA’s authorization of removal of aliens who commit any

4 of a wide array of criminal offenses, 8 U.S.C. § 1227(a)(2), is part and parcel of law enforcement

5 and criminal justice, if for no other reason than that removal is one of the means by which the

6 Federal Government protects the public and prevents recidivism by criminal aliens. And even if

7 that basic point were not enough, numerous other provisions of the INA also intertwine these two

8 subjects, and/or contemplate cooperation among state and local officers and federal officials on

9 immigration enforcement.5

10

Tellingly, California’s assertion that “immigration law has nothing to do with enforcement

11 of local criminal laws,” Opp. at 11 (citation omitted), is belied by the connection that the State itself

12 draws between its immigration enforcement policies and its crime rates. See id. at 16 (arguing that

13 “law enforcement policies that collaborate and build trust with immigrant communities result in

14 positive criminal enforcement and safety outcomes”). Thus, while California may disagree with the

15 substance of the federal policy choices embodied by the challenged conditions, the undeniable

16 relationship between these subjects is evident from the State’s own arguments.6

17

In sum, the challenged conditions relate only to aliens who are under detention and who

18

19 5 See, e.g., 8 U.S.C. § 1226(a), (c) (authorizing detention of criminal alien during removal proceedings and
requiring detention for certain criminal aliens); id. § 1231 (providing for continued detention during removal
20 period); id. § 1357(g) (providing for formal agreements under which local officers may perform specified
immigration functions relating to the investigation, apprehension, or detention of aliens); id. § 1324(c)
21 (authorizing state and local officers to make arrests for violations of INA’s prohibition against smuggling,
transporting, or harboring aliens); id. § 1252c (authorizing state and local officers to arrest certain felons who
22 have unlawfully returned).

23 6 Further, insofar as California’s argument that immigration enforcement cannot bear even “some
relationship” to criminal justice relies on the civil nature of the former, see Opp. at11, this argument fails
24 to account for the federal Sex Offender Registration and Notification Act (“SORNA”), 34 U.S.C. § 20901 et
seq., which is also “a civil regulatory scheme rather than a criminal one.” United States v. Elkins, 683 F.3d
25 1039, 1044-45 (9th Cir. 2012). Yet notwithstanding SORNA’s civil nature, a state’s compliance with the
same is directly tied to its entitlement to its full allotment of Byrne JAG funding. 34 U.S.C. § 20927(a); see,
26 e.g., United States v. Kebodeaux, 570 U.S. 387 (2013) (observing with approval that SORNA “used
Spending Clause grants to encourage States to adopt its uniform definitions and requirements.”). The
27 relatedness inquiry under the Spending Clause thus plainly allows for the linkage of civil and criminal
subject areas.

28

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1 have either committed crimes or are suspected of having committed crimes. State and local

2 cooperation with the Federal Government through the provision of basic information and access

3 allows for effective enforcement of federal immigration law against aliens who are criminals or

4 suspected criminals—and thus makes communities safer. The challenged conditions thus directly

5 advance the purposes of the Byrne JAG Program, and easily clear the low bar of bearing “some

6 relationship” to the Program’s purposes. Mayweathers, 314 F.3d at 1067.

7

C. Plaintiff’s APA Claims Must Be Dismissed for Additional Reasons

8

1. The APA Claims Do Not Challenge Final Agency Action

9

“[T]he Administrative Procedure Act does not provide judicial review for everything done

10 by an administrative agency.” Invention Submission Corp. v. Rogan, 357 F.3d 452, 459 (4th Cir.

11 2004) (citation omitted). One limitation, which is jurisdictional in nature, is that “[t]o obtain

12 judicial review under the APA, [a plaintiff] must challenge a final agency action.” Or. Nat. Desert

13 Ass’n v. U.S. Forest Serv., 465 F.3d 977, 982 (9th Cir. 2006) (citing 5 U.S.C. § 704). As a

14 preliminary matter, “[f]or there to be ‘final’ agency action, there must, of course, be ‘agency

15 action,’” as defined by 5 U.S.C. § 551(13). Impro Prods., Inc. v. Block, 722 F.2d 845, 848-49

16 (D.C. Cir. 1983). Once an appropriate “agency action” is identified, finality is reached only when

17 the action in question (1) “marks the consummation of the agency’s decisionmaking process,”

18 and (2) is “one by which rights or obligations have been determined, or from which legal

19 consequences will flow.” Bennett v. Spear, 520 U.S. 154, 177-78 (1997) (citations omitted).

20

California fails to identify an “agency action” within the meaning of the APA, much less

21 one that is “final.” As relevant here, the APA defines “agency action” as “the whole or a part” of,

22 inter alia, agency “relief … or [the] denial thereof,” 5 U.S.C. § 551(13), and “relief,” in turn, as

23 including an agency “grant of money [or] assistance …,” id. § 551(11)(A). In comportment with

24 these definitions, the Ninth Circuit has held that in the context of agency grant-making in

25 particular, “the congressional appropriation to [an agency] of funds for a particular project does

26 not constitute a final agency action by the [agency] until the [agency] has reviewed a grant

27 application and decided to disburse the funds.” Rattlesnake Coal. v. EPA, 509 F.3d 1095, 1103-

28

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1 04 (9th Cir. 2007) (emphasis added). As there is no dispute that DOJ has not yet determined

2 whether to grant FY 17 Byrne JAG funds to California, or deny its pending application, it follows

3 that there is, as of yet, no final agency action for this Court to review.

4 California responds that “by requiring the [state’s] chief legal officer to certify compliance

5 under penalty of perjury with the Section 1373 condition, and the [state] to certify compliance

6 with all three conditions … Defendants have committed to a view that requires California to act.”

7 Opp. at 14-15. However, as the Ninth Circuit recently explained, this argument “confuses the

8 issue of whether an agency action is final with that of whether a case is ripe for judicial review.”

9 San Francisco Herring Ass’n v. U.S. Dep’t of Interior, 683 F. App’x 579, 581 (9th Cir. 2017)

10 (explaining that an interlocutory step in an ongoing administrative process may require an entity

11 to make “‘an immediate and significant change in [its] conduct of [its] affairs with serious

12 penalties attached to noncompliance’” and yet not be “final” for purposes of APA review)

13 (quoting Abbott Labs. v. Gardner, 387 U.S. 136, 153 (1967)). Similarly, although California is

14 correct that the “practical effects” of an agency decision can be relevant to the “final agency

15 action” analysis, see Opp. at 14 (citing Columbia Riverkeeper v. U.S. Coast Guard, 761 F.3d

16 1084, 1094-95 (9th Cir. 2014)), where, as here, “the practical effect of the agency action is not a

17 certain change in the legal obligations of a party, the action is non-final for the purpose of

18 judicial review.” Nat’l Ass’n of Home Builders v. Norton, 415 F.3d 8, 15 (D.C. Cir. 2005)

19 (emphasis added); see also, e.g., Holistic Candlers & Consumers Ass’n v. FDA, 664 F.3d 940,

20 941-946 (D.C. Cir. 2012) (FDA letters requesting that the plaintiffs cease, on potential penalty of

21 “regulatory action,” the marketing and distribution of certain products which the FDA considered

22 to be misbranded medical devices was not “final agency action”); City of San Diego v. Whitman,

23 242 F.3d 1097, 1102 (9th Cir. 2001) (EPA letter providing requested opinion on whether it would

24 apply certain conditions to a permit application had no legal consequences).

25 In sum, it is for good reason that “[t]he propriety of an agency’s action is reviewed after

26 the final administrative decision.” Commodity Futures Trading Comm’n v. Monex Deposit Co.,

27 824 F.3d 690, 692 (7th Cir. 2016) (citation omitted). “The principal purpose of the APA[’s]

28

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1 limitations . . . is to protect agencies from undue judicial interference with their lawful discretion,

2 and to avoid judicial entanglement in abstract policy disagreements which courts lack both

3 expertise and information to resolve.” Norton v. S. Utah Wilderness All., 542 U.S. 55, 66 (2004).

4 “[T]he effect of the judicial review sought by [California] is likely to be interference with the

5 proper functioning of the agency and a burden for the courts.” FTC v. Standard Oil Co. of Cal.,

6 449 U.S. 232, 242 (1980); id. at 243 (cautioning that APA review is not “a means of turning

7 prosecutor into defendant before adjudication concludes”). California’s APA claims falter on this

8 threshold ground, apart from the failure of those claims on their merits.

9

2. The Challenged Conditions Are Not Arbitrary or Capricious

10

It is well-established that when a court reviews an agency’s action under the “arbitrary or

11 capricious” standard, it is “required to be highly deferential,” and to “presum[e] the agency action

12 to be valid” as long as it is supported by a rational basis. Providence Yakima Med. Ctr. v.

13 Sebelius, 611 F.3d 1181, 1190 (9th Cir. 2010) (citation omitted). Thus, in an APA action, the

14 burden is on the plaintiff to show that the challenged action is arbitrary and capricious, not on the

15 defendant agency to disprove the plaintiff’s claim. See Pierce v. SEC, 786 F.3d 1027, 1035 (D.C.

16 Cir. 2015); Quechan Tribe of Ft. Yuma Indian Reservation v. U.S. Dep’t of the Interior, 927 F.

17 Supp. 2d 921, 928 (S.D. Cal. 2013), aff’d, 673 F. App’x 709 (9th Cir. 2016). The APA standard

18 of review is “narrow,” and does not authorize a district court “to substitute its judgment for that of

19 the agency.” Citizens to Preserve Overton Park, Inc. v. Volpe, 401 U.S. 402, 416 (1971).

20

The challenged conditions easily meet this standard. As detailed above, Congress

21 established the Byrne JAG Program to further “criminal justice”-related purposes, 34 U.S.C. §

22 10152(a)(1), broadly defined, id. § 10251(a)(1). And, as also explained above, such purposes are

23 rationally advanced by facilitating federal access to aliens who have violated, or are suspected of

24 violating, state or local criminal laws—if for no other reason than that once removed, an alien

25 who has committed a removable criminal offense is undeniably no longer present in this country

26 with the potential to re-offend. See 8 U.S.C. § 1227(a)(2) (providing that a criminal conviction for

27 any of a wide array of criminal offenses renders an alien removable).

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1

Further, the challenged conditions rationally promote interests in “maintain[ing] liaison”

2 among tiers of government “in matters relating to criminal justice,” 34 U.S.C. § 10102(a)(2), and

3 comport with the intergovernmental cooperation that Congress contemplates in immigration

4 enforcement—which cooperation the May 2016 Office of Inspector General (“OIG”) report found

5 decidedly lacking in various jurisdictions around the country. Def. RJN, Ex. P at 1-2 n.1 (OIG

6 report finding deteriorating local cooperation with “efforts to remove undocumented criminal

7 aliens from the United States,” including in California, among other jurisdictions); see also, e.g.,

8 8 U.S.C. §§ 1226(d), 1357(g), 1373; Arizona, 567 U.S. at 411-12 (“Consultation between federal

9 and state officials is an important feature of the immigration system” and Congress “has

10 encouraged the sharing of information about possible immigration violations.”) (citation omitted).

11 As the Department explained in its July 25, 2017 “Backgrounder on Grant Requirements,”

12 “[i]mproving the flow of information between federal and state law enforcement authorities is

13 paramount to ensuring that federal immigration authorities have the information they need to

14 enforce the law and keep our communities safe”). Def. RJN, Ex. Q. Thus, the challenged

15 conditions have more than a “reasonable basis” and easily satisfy the “deferential and narrow”

16 APA standard. Indep. Acceptance Co. v. California, 204 F.3d 1247, 1251 (9th Cir. 2000).

17

In response, California argues that none of the challenged conditions were incorporated

18 into Byrne JAG grants prior to 2016 (the Section 1373 Condition) or 2017 (the Access and Notice

19 Conditions). See Opp. at 15. But where the agency action in question represents a shift in policy,

20 the agency “need not demonstrate to a court’s satisfaction that the reasons for the new policy are

21 better than the reasons for the old one; it suffices that the new policy is permissible under the

22 statute, that there are good reasons for it, and that the agency believes it to be better.” FCC v. Fox

23 Television Stations, Inc., 556 U.S. 502, 515 (2009) (emphasis omitted). Further, California’s

24 additional argument, that certain unidentified “evidence from jurisdictions around the country”

25 purportedly demonstrates that “law enforcement policies that collaborate and build trust with

26 immigrant communities result in positive criminal enforcement and safety outcomes,” Opp. at 16,

27 reflects only a “difference in view” with the Federal Government regarding how best to promote

28

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1 public safety. See All. for the Wild Rockies v. Peña, 865 F.3d 1211, 1217 (9th Cir. 2017). While

2 California is entitled to its views, its disagreement does not establish a violation of the APA.

3 II. 4

California’s Claim for a Declaration Regarding its Statutes’ Compliance with Section 1373 Should Be Dismissed

5

A. The Claim Regarding Compliance with Section 1373 Is Non-Justiciable

6

1. California Lacks Standing to Seek a Ruling Regarding

7

Any State Statute Other Than the Values Act

Defendants have not withheld or threatened to withhold grant funding based on any 8

California statute other than the Values Act, Cal. Gov’t Code §§ 7284-7284.12. Thus, there is no 9

“live controversy” regarding whether any other state statute violates Section 1373 and no foresee10

able “injury in fact” arising from Defendants’ application of Section 1373 to any other statutes, 11

such that California lacks standing to seek a ruling on any statute other than the Values Act. See 12

Pollution Denim & Co. v. Pollution Clothing Co., 2009 WL 10672270, at *8-10 (C.D. Cal. Feb. 9, 13

2009); Steel Co. v. Citizens for a Better Env’t, 523 U.S. 83, 102-03 (1998). California makes essen14

tially two arguments to the contrary: that the Federal Government has “called out” other California 15

laws, and that Defendants have asserted that “similar” laws and policies in other jurisdictions 16

violate Section 1373. Opp. at 17-18. Neither of these arguments establishes a “live controversy” 17

regarding any California laws other than the Values Act. 18

California’s assertion that Defendants have “called out” other California laws for non19

compliance with Section 1373 is based on very general statements from the Attorney General, the 20

DOJ Office of Public Affairs, and the Acting Director of Immigration and Customs Enforcement. 21

See Opp. at 17-18; Am. Compl. ¶¶ 109-110. None of those statements, however, referred to any 22

specific state statutes, and some of them did not even refer to Section 1373. Moreover, as the State 23

acknowledges, some of those statements asserted only that California had “laws that potentially 24

violate[d] 8 U.S.C. § 1373,” Am. Compl. ¶ 110 (emphasis added); see Opp. at 18. A statement 25

regarding a “potential” violation does not create a live controversy warranting judicial intervention. 26

California’s references to “similar” laws in other jurisdictions also does not establish 27

28

12

Defs.’ Reply Re Motion to Dismiss

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Case 3:17-cv-04701-WHO Document 83 Filed 02/06/18 Page 20 of 25

1 standing to seek relief regarding California statutes other than the Values Act. Given the specific

2 language of Section 1373 and the great variety in the language of the various state and local laws

3 regarding cooperation with federal authorities, each such law must be evaluated on its own. Each

4 law has its own specific (or general) prohibitions, its own definitions (or lack of definitions), and its

5 own exceptions or purported saving clause. Thus, an assertion by Defendants that a “similar” law

6 elsewhere violates Section 1373 would not establish a live controversy regarding a given California

7 statute, unless the two enactments were identical or very nearly identical.

8

2. California’s Request for a Ruling Regarding the Values Act is Unripe

9

As to the Values Act, although Defendants have expressed concern that the Act appears to

10 violate Section 1373, the parties have not yet completed their discussion on that subject and DOJ

11 has not yet issued any final determination that the Act violates Section 1373. Indeed, after

12 Defendants filed their motion to dismiss, OJP requested certain documents from the State to

13 facilitate that decision, and awaits the State’s response. Pl. RJN, Ex. D. Thus, California’s claim

14 regarding the Values Act is constitutionally unripe because it “rests upon contingent future events

15 that may not occur as anticipated, or indeed may not occur at all.” Texas v. United States, 523 U.S.

16 296, 300 (1998) (citation omitted).

17

When evaluating ripeness in the context of a statutory challenge, a Court may consider

18 “whether the plaintiffs have articulated a ‘concrete plan’ to violate the law in question, whether the

19 prosecuting authorities have communicated a specific warning or threat to initiate proceedings, and

20 the history of past prosecution or enforcement under the challenged statute.” Id. California argues

21 that these factors are met here because the State’s November 13, 2017 letter to OJP, Def. RJN, Ex.

22 O, “articulated a clear plan” to violate Section 1373 as understood by Defendants; Defendants

23 allegedly “threatened prosecution” against the State in OJP’s initial letter of November 1 (id., Ex.

24 N) and in “public statements”; and Defendants “sought to enforce Section 1373 [thirty-five] times

25 since October 2017, including against California.” Opp. at 20. The facts indicate, however, that OJP

26 has not yet determined whether to initiate “prosecution”—that is, withholding of funds—because of

27 the Values Act. And, as discussed, any action that OJP may take regarding the laws of any other

28

13

Defs.’ Reply Re Motion to Dismiss

No. 3:17-cv-04701-WHO

Case 3:17-cv-04701-WHO Document 83 Filed 02/06/18 Page 21 of 25

1 jurisdiction cannot predict what the agency may decide regarding the laws of California, given the

2 almost infinite variety among the laws of different jurisdictions. Indeed, OJP’s most recent letter to

3 California, dated January 24, 2018, stated that DOJ “remains concerned that [the State’s] laws,

4 policies, or practices may violate section 1373, or, at a minimum, that they may be interpreted or

5 applied in a manner inconsistent with section 1373.” Pl. RJN, Ex. D (emphasis added). In short,

6 “neither the mere existence of a proscriptive statute [here, Section 1373] nor a generalized threat of

7 prosecution [here, the ongoing correspondence between the State and OJP regarding the Values

8 Act] satisfies the ‘case or controversy’ requirement,” Thomas v. Anchorage Equal Rights Comm’n,

9 220 F.3d 1134, 1139 (9th Cir. 2000) (en banc), and the Values Act claim is constitutionally unripe.

10

B. Alternatively, the Court Should Dismiss California’s Claim for

11

Declaratory Relief Regarding the Values Act on Its Merits

12

Section 1373 facilitates the INA’s comprehensive and cooperative plan of first requiring

13 aliens to serve any criminal sentences imposed by state and local governments, then commencing

14 federal immigration detention immediately upon conclusion of criminal sentences. See 8 U.S.C.

15 §§ 1226(c)(1), 1231(a)(1)(B)(iii), (a)(4); see also Preap v. Johnson, 831 F.3d 1193, 1202 (9th Cir.

16 2016) (Section 1226(c) “governs the full life cycle of the criminal aliens’ detention” including

17 “specifying the requirements for taking them into custody”), pet. for cert. filed, No. 16-1363 (May

18 11, 2017). Thus, Section 1373 forecloses “prohibit[ing], or in any way restrict[ing], any government

19 entity or official from sending to, or receiving from, [federal authorities] information regarding the

20 citizenship or immigration status … of any individual.” 8 U.S.C. § 1373(a). Contrary to this

21 congressional plan, the Values Act prohibits state and local law enforcement from using “moneys

22 or personnel to investigate … persons for immigration enforcement purposes,” including by

23 “[p]roviding information regarding a person’s release date or responding to requests for notification

24 by providing release dates or other information unless that information is available to the public, or

25 is in response to a notification request from immigration authorities” or by “[p]roviding personal

26 information … about an individual, including, but not limited to, the individual’s home address or

27 work address unless that information is available to the public.” Cal. Gov’t Code § 7284.6(a).

28

14

Defs.’ Reply Re Motion to Dismiss

No. 3:17-cv-04701-WHO

Case 3:17-cv-04701-WHO Document 83 Filed 02/06/18 Page 22 of 25

1

A “fundamental canon of statutory construction” is that “the words of a statute must be read

2 in their context and with a view to their place in the overall statutory scheme.” Davis v. Michigan

3 Dep’t of Treasury, 489 U.S. 803, 809 (1989). Protecting the exchange of information regarding the

4 status of aliens with federal immigration authorities ensures that those authorities will be able to

5 track the status of such persons and take custody of them, as required by the INA, upon their release

6 from state and local custody. Moreover, as California acknowledges, federal immigration author-

7 ities presumably already have “definitive information” as to whether any given individual is in the

8 United States legally or illegally. Opp. at 24. Thus, limiting Section 1373 to that information would

9 render the statute essentially meaningless as applied to the transfer of information from state and

10 local authorities to federal authorities. The phrase “information regarding . . . citizenship or

11 immigration status” must, therefore, mean something more. And that something more logically

12 includes information needed by federal authorities to carry out their responsibilities under the INA

13 to take custody of aliens upon their release from criminal detention.

14

California also seeks to rely on the Values Act’s purported saving clause, which essentially

15 quotes Section 1373, see Cal. Gov’t Code § 7284.6(e); the State argues that that clause “permits

16 compliance with all aspects of Section 1373.” Opp. at 23. In light of the State’s arguments in this

17 action, however, the California Attorney General obviously reads the language of that clause too

18 narrowly, as permitting the disclosure only of an individual’s citizenship or immigration status, and

19 nothing more. The saving clause does not, therefore, save the Values Act from violation of Section

20 1373, as the federal statute is properly construed.

21

Lastly, relying on Gregory v. Ashcroft, 501 U.S. 452, 460-61 (1991), California argues that

22 Section 1373 “alter[s] the usual constitutional balance between the States and the Federal

23 Government,” such that the statute cannot encompass “release dates, home addresses, or other

24 information about a person’s identity” unless that congressional intent is “unmistakably clear.”

25 Opp. at 25. The situation here is decisively different from that presented in Gregory, however. In

26 Gregory, Missouri state judges argued that a state constitutional provision requiring judges to retire

27 at age seventy violated the Age Discrimination in Employment Act. 501 U.S. at 455-61. The Court

28

15

Defs.’ Reply Re Motion to Dismiss

No. 3:17-cv-04701-WHO

Case 3:17-cv-04701-WHO Document 83 Filed 02/06/18 Page 23 of 25

1 observed that the authority to “establish a qualification for those who sit as their judges . . . goes

2 beyond an area traditionally regulated by the States; it is a decision of the most fundamental sort for

3 a sovereign entity.” Id. at 460. In that context, the Court observed, it would not construe a federal

4 statute as overriding the State’s will unless that intention were “unmistakably clear.” Id.

5

The information covered by Section 1373 is entirely unlike the qualifications of state judges

6 involved in Gregory. As Gregory observed, state judges are among the “most important [state]

7 government officials.” 501 U.S. at 463. By contrast, Section 1373 covers information regarding

8 aliens in the United States, whose admission, conduct, presence, and potential removal are

9 quintessentially the responsibility of the Federal Government. See Arizona, 567 U.S. 387.

10 Protecting the transmission information regarding such persons to federal immigration authorities,

11 far from endangering “the independence of the States,” Gregory, 501 U.S. at 460, merely ensures

12 that federal officers can perform their duties. Thus, there is no basis for applying Gregory’s

13 “unmistakable clarity” rule here.7

14 III. Section 1373 Is Consistent with the Tenth Amendment

15

Finally, California’s Tenth Amendment challenge to Section 1373 is without merit. Merely

16 protecting the transmission of information to federal authorities does not “compel the State[] to

17 enact or administer a federal regulatory program” or to “act on the Federal Government’s behalf,”

18 Nat’l Fed’n of Indep. Bus. v. Sebelius, 567 U.S. 519, 575, 620 (2012). But Section 1373 does ensure

19 that the Federal Government can carry out its statutory responsibilities to “interrogate any alien or

20 person believed to be an alien as to his right to be or to remain in the United States” and to remove

21 the alien “upon the order of the Attorney General” after completion of criminal sentences. 8 U.S.C.

22 §§ 1227(a), 1228, 1357(a)(1).8

23

California relies primarily on Printz v. United States, 521 U.S. 898 (1997) in attempting to

24 7 Plaintiff also seeks to rely on Steinle v. San Francisco, 230 F. Supp. 3d 994 (N.D. Cal. 2017), regarding 25 the scope of Section 1373. Opp. at 24 & n.17). The court in that case did not, however, have the advantage
of the Federal Government’s briefing on that issue.

26 8 Courts have rejected a number of Tenth Amendment challenges to federal statutes regulating the handling

of information. See Reno v. Condon, 528 U.S. 141 (2000) (rejecting challenge to requirement that States
27 disclose certain information on motor vehicle operators); Freilich v. Upper Chesapeake Health, Inc., 313

F.3d 205 (4th Cir. 2002) (rejecting challenge to requirement to share certain information regarding

28

16

Defs.’ Reply Re Motion to Dismiss

No. 3:17-cv-04701-WHO

Case 3:17-cv-04701-WHO Document 83 Filed 02/06/18 Page 24 of 25

1 show that the Section 1373 Condition violates the Tenth Amendment. Opp. at 27-29. But the State

2 ignores crucial differences between this case and the Brady Act, challenged there. As discussed in

3 Defendants’ motion, the provisions of the Brady Act at issue in Printz required local law

4 enforcement officers to “make a reasonable effort to ascertain within 5 business days whether

5 receipt or possession [of a handgun] would be in violation of the law” by conducting research in

6 available databases, and to provide a written statement of the reasons for any contrary

7 determination. 521 U.S. at 903. Section 1373’s mere bar against prohibiting or restricting the

8 exchange of information regarding aliens is in no way comparable to the detailed instructions and

9 mandates of the Brady Act. Nor does Section 1373 require state or local agencies to “absorb” any

10 appreciable costs. Contra Opp. at 28.

11

Finally, California asserts that the Values Act does not “selectively restrict[] the exchange of

12 confidential information with immigration authorities.” Opp. at 30. In reality, however, the Act is

13 expressly and specifically directed at preventing cooperation with federal immigration authorities,

14 stating in its “findings,” among other things, that the State’s interests are “threatened when state and

15 local agencies are entangled with federal immigration enforcement.” Cal. Gov’t Code § 7284.2(c).

16 In short, while Section 1373 does not “commandeer” the States in violation of the Tenth

17 Amendment, California itself seeks to commandeer the Federal Government’s constitutional control

18 over the admission, conduct, and potential removal of aliens by preventing federal authorities from

19 securing the information they need regarding such persons.

20

CONCLUSION

21

For the reasons set forth above and also in Defendants’ opening memorandum, the Court

22 should dismiss plaintiff’s First Amended Complaint in its entirety.

23

24
physicians); see also City of New York v. United States, 179 F.3d 29, 34-35 (2d Cir. 1999) (rejecting Tenth
25 Amendment challenge to Section 1373). California argues that the federal law at issue in Reno “regulate[d]
states as operators of databases and sellers of information in the same manner that Congress regulates
26 private entities.” Opp. at 29. But Reno expressly declined to address the plaintiffs’ argument that the
Federal Government could “only regulate the States by means of ‘generally applicable’ laws.” 528 U.S. at
27 151. Rather, Reno held that the statute did not require the State “to enact any laws or regulations” or
otherwise “assist in the enforcement of federal statutes” other than by conveying information. Id.

28

17

Defs.’ Reply Re Motion to Dismiss

No. 3:17-cv-04701-WHO

Case 3:17-cv-04701-WHO Document 83 Filed 02/06/18 Page 25 of 25

1 Dated: February 6, 2018 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
Defs.’ Reply Re Motion to Dismiss No. 3:17-cv-04701-WHO

Respectfully submitted, CHAD A. READLER Acting Assistant Attorney General ALEX G. TSE United States Attorney JOHN R. TYLER Assistant Director /s/ Antonia Konkoly ANTONIA KONKOLY W. SCOTT SIMPSON Senior Trial Counsel Attorneys, Department of Justice Civil Division, Room 7210 Federal Programs Branch 20 Massachusetts Avenue, NW Washington, D.C. 20530 Telephone: (202) 514-3495 Facsimile: (202) 616-8470 E-mail: antonia.konkoly@usdoj.gov COUNSEL FOR DEFENDANTS JEFFERSON B. SESSIONS III, Attorney General of the United States; ALAN R. HANSON, Principal Deputy Assistant Attorney General; and U.S. DEPARTMENT OF JUSTICE
18

 
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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 STATE OF CALIFORNIA, EX REL. XAVIER BECERRA, IN HIS OFFICIAL
8 CAPACITY AS ATTORNEY GENERAL OF THE STATE OF CALIFORNIA,

9

Plaintiff,

10

v.

11 JEFFERSON BEAUREGARD SESSIONS,
12 et al.,

13

Defendants.

Case No. 17-cv-04701-WHO
ORDER DENYING MOTION TO DISMISS Re: Dkt. No. 77

14

Defendants have moved to dismiss the State of California’s Amended Complaint seeking

15 declaratory relief and asserting claims of the violation of constitutional separation of powers,

16 congressional spending authority and the Administrative Procedures Act. The matter was fully

17 briefed and argued on February 28, 2018. For the reasons described in the Order Denying

18 Amended Motion for Preliminary Injunction (“the Order”) filed today at pages 11 - 18, the State

19 has Article III standing: it has a well-founded fear of prosecution and has demonstrated injury-in-

20 fact. Its claims are ripe.

21

While the Order does not grant preliminary injunctive relief at this time, each of the State’s

22 claims is legally sufficient to state a claim upon which relief could be granted. The weighty and

23 novel constitutional issues posed in this litigation deserve a complete record before they are

24 adjudicated. The Order only glancingly dealt with the Notice and Access conditions that have

25 been enjoined on a nationwide basis in City of Chicago v. Sessions, but for the reasons set forth in

26 that case and in City of Philadelphia v. Sessions, the State’s related claims state a plausible basis

27 for relief. See City of Philadelphia v. Sessions, No. 17–3894, ––– F.Supp.3d ––––, 2017 WL

28 5489476, at *48-49 (E.D. Pa. Nov. 15, 2017) (finding that the Notice and Access conditions are

Case 3:17-cv-04701-WHO Document 88 Filed 03/05/18 Page 2 of 2

United States District Court Northern District of California

1 not statutorily authorized and the imposition of the conditions implicate constitutional concerns);

2 City of Chicago v. Sessions, 264 F.Supp.3d 933, 943 (N.D. Ill. 2017) (holding that the Notice and

3 Access conditions exceed statutory authority of Executive Branch and imposition of the conditions

4 violated the separation of powers doctrine). Defendants’ motion is DENIED.

5

The parties are directed to meet and confer and agree to the extent possible on a schedule

6 for discovery and cross-motions for summary judgment. A Joint Case Management Statement

7 shall be filed on March 20, 2018 setting forth either an agreed schedule or competing ones. A

8 Case Management Conference will be held on March 27, 2018 at 2 p.m. in the event the parties

9 have been unable to agree or that one of the parties wishes to be heard on any other issue in the

10 litigation.

11

IT IS SO ORDERED.

12 Dated: March 5, 2018

13

14

15

William H. Orrick United States District Judge

16

17

18

19

20

21

22

23

24

25

26

27

28 2

 
 Case 3:17-cv-04701-WHO Document 89 Filed 03/05/18 Page 1 of 28

United States District Court Northern District of California

1

2

3

4

UNITED STATES DISTRICT COURT

5

NORTHERN DISTRICT OF CALIFORNIA

6

7 STATE OF CALIFORNIA, EX REL. XAVIER BECERRA, IN HIS OFFICIAL
8 CAPACITY AS ATTORNEY GENERAL OF THE STATE OF CALIFORNIA,

9

Plaintiff,

10

v.

11 JEFFERSON BEAUREGARD SESSIONS,
12 et al.,

13

Defendants.

Case No. 17-cv-04701-WHO
ORDER DENYING AMENDED MOTION FOR PRELIMINARY INJUNCTION

14

INTRODUCTION

15

The State of California has sued United States Attorney General Jefferson Beauregard

16 Sessions, Acting Assistant Attorney General Alan B. Hanson, and the United States Department of

17 Justice (“DOJ”) (collectively, the federal government), seeking a declaration that Section 1373 of

18 the Immigration and Nationalization Act (as interpreted by the federal government) violates the

19 Constitution and an injunction enjoining the federal government from withholding, terminating,

20 disbarring, or making any state entity or local jurisdiction ineligible for certain law enforcement

21 grants. The State then moved for a preliminary injunction.

22

At some later date, this case may help define the contours of the State’s broad

23 constitutional police powers under the Tenth Amendment and the federal government’s “broad,

24 undoubted power over the subject of immigration and the status of aliens.” U.S. v Arizona, 567

25 U.S. 387, 394 (2012). The Trump administration’s immigration enforcement policy is clearly at

26 odds with the State’s determination of the most effective methods to implement criminal law

27 enforcement. But for today, the question I decide is narrow: is the State entitled to a preliminary

28 injunction to require the federal government to fund a $1 million law enforcement grant that it has

Case 3:17-cv-04701-WHO Document 89 Filed 03/05/18 Page 2 of 28

United States District Court Northern District of California

1 held up because it appears likely to decide that the State is not complying with 8 U.S.C. § 1373

2 (Section 1373) by restricting its officials from providing personal information and release dates of

3 certain people detained in jails across the state.

4

The injury threatened is not irreparable. The amount of money at stake is small compared

5 to the State’s budget. Payment is delayed, for the moment. The DOJ appears to be using its

6 regular administrative process to decide whether it will follow its initial inclinations. Given the

7 number of open questions concerning the federal government’s positions concerning the

8 provisions of the statutes in question, the relatively minimal injury its delay has caused thus far,

9 and the extraordinary nature of the relief sought, I deny the State’s motion without prejudice.

10 These issues will be better addressed on a more complete record after discovery on a motion for

11 summary judgment.

12

BACKGROUND

13 I. 14

CALIFORNIA’S “SANCTUARY CITY” STATUTES The State has enacted several laws affecting local and state criminal law enforcement

15 concerning immigrants. Mot. at 5 (Dkt. No. 26). These statutes fit into two categories: (1) laws

16 regarding how and in what manner local law enforcement can communicate and assist federal

17 immigration officers (the TRUTH, TRUST, and Values Acts); and (2) statutes related to

18 individuals’ confidential information (Penal Code sections 422.93, 679.10, and 679.11, Welfare

19 and Institutions Code sections 827 and 831, and Code of Civil Procedure section 155).

20

A. The TRUST, TRUTH and Values Acts

21

In 2013, the State enacted the TRUST Act, Cal. Gov’t Code § 7282 et seq., which explains

22 when local law enforcement officers may abide by a Department of Homeland Security (“DHS”)

23 civil detainer request. See id. §§ 7282(c), 7282.5. Per the TRUST Act, local law enforcement

24 may only comply with a DHS civil detainer if the detainer does not “violate any federal, state, or

25 local law, or any local policy,” and (1) the detainee’s criminal background includes one of a

26 delineated list of crimes, (2) the detainee was on the California Sex and Arson Registry, or (3) the

27 detainee was held after a magistrate’s finding of probable cause for a serious or violent felony.

28 See id. § 7282.5(a). 2

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United States District Court Northern District of California

1

In 2016, the State enacted the TRUTH Act. Cal. Gov’t Code § 7283 et seq. The TRUTH

2 Act requires that if a federal immigration agent requests an interview with a detainee, the jail must

3 notify the detainee that such interviews are voluntary and that he has the right to seek counsel. Id.

4 § 7283.1(a). Further, when a jail receives a DHS request, local law enforcement must provide the

5 implicated detainee with a copy of the request and inform him whether the jail intends to comply

6 with the request. Id. § 7283.1(b).

7

Most recently, on October 5, 2017, the State passed the California Values Act (the “Values

8 Act”), Cal. Gov’t Code § 7284 et seq., “to ensure effective policing, to protect the safety, well-

9 being, and constitutional rights of the people of California, and to direct the state’s limited

10 resources to matters of greatest concern to state and local governments.” Id. § 7284.2(f). The

11 Values Act prohibits compliance with warrantless detainer requests. See id. §§ 7284.2(e),

12 7284.6(a)(1)(B). It also forbids a local law enforcement officer from asking any individual his

13 immigration status for immigration enforcement purposes. See id. § 7284.6(a)(1)(A). Further, the

14 use of local law enforcement funds or personnel to “provid[e] personal information” about an

15 individual “for immigration enforcement purposes” is disallowed unless that information is

16 “available to the public.” Id. § 7284.6(a)(1)(D).

17

The Values Act also amends the TRUST Act to clarify when local law enforcement

18 officers have discretion to respond to DHS notification requests. See id. §§ 7282.5(a), 7283(f),

19 7284.6(a)(1)(C). Local law enforcement officers may only comply with notification requests

20 when the relevant individual has a prior criminal conviction included on a long list of specified

21 crimes or if the information that DHS seeks is already available to the public. See id. §

22 7284.6(a)(1)(C).

23

The Values Act explicitly purports to comply with section 1373 through a savings clause.

24 Section 7284(e) reads:

25

This section does not prohibit or restrict any government entity or

26

official from sending to, or receiving from, federal immigration

authorities, information regarding the citizenship or immigration

27

status, lawful or unlawful, of an individual, or from requesting from

federal immigration authorities immigration status information,

28

lawful or unlawful, of any individual, or maintaining or exchanging

3

Case 3:17-cv-04701-WHO Document 89 Filed 03/05/18 Page 4 of 28

United States District Court Northern District of California

that information with any other federal, state, or local government

1

entity, pursuant to Sections 1373 and 1644 of title 8 of the United

States Code. 2

On October 17, 2017, the CalDOJ received a request for a proposed statewide voter

3

referendum regarding the Values Act. On January 17, 2018, the California secretary of state’s

4

office announced that the initiative failed to make the ballot. Supplemental RJN, Ex. A (Dkt. No.

5

79).

6

B. Confidentiality Statutes 7
The State’s confidentiality statues purport to protect (1) the confidential information of 8
victims and witnesses of crime, Cal. Penal Code §§ 422.93, 679.10, 679.11, and (2) confidential 9
information of youth in its juvenile court system, Cal. Welf. & Inst. Code §§ 827, 831; Cal. Civ. 10
Proc. Code § 155. Relevant to this lawsuit, California Penal Code sections 679.10 and 679.11 11
prohibit any state entity that certifies information for the sake of the U-visa and T-visa application 12
process from disclosing the immigration status of individuals requesting certification “except to 13
comply with federal law or legal process, or if authorized by the victim or person requesting 14
[certification].” Id. §§ 679.10(k), 679.11(k). 15
California Penal Code section 422.93 also focuses on the confidential information of 16
victims and witnesses of crime. It prohibits detainment of an individual who is a hate crime 17
victim or witness in instances where the sole reason for the detainment is an “actual or suspected” 18
immigration violation. Cal. Penal Code § 422.93(b). Law enforcement also cannot report or turn 19
over the individual to federal immigration authorities. Id. 20
The State’s laws regarding confidential information of juveniles dictate that juvenile court 21
records and any information that the records contain are confidential except to statutorily 22
designated parties. Cal. Welf. & Inst. Code § 827. Additionally, in the Special Immigrant 23
Juvenile process, the State’s laws require that information regarding a juvenile’s immigration 24
status remain confidential. See id. § 831(e). Accordingly, any information about a child’s 25
immigration status that is apparent during any juvenile court proceeding remains confidential and 26
is only available for inspection “by the court, the child who is the subject of the proceeding, the 27
parties, the attorneys for the parties, the child’s counsel, and the child’s guardian.” Cal. Civ. Proc. 28

4

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United States District Court Northern District of California

1 Code § 155(c).

2 II. THE GRANTS IN QUESTION

3

The State has been a recipient of both the Byrne JAG and COPS grants, but its future receipt

4 of the grants is threatened by the federal government’s interpretation of Section 1373.

5

A. The Byrne JAG Program

6

The Office of Justice Programs (“OJP”) administers the Edward Byrne Memorial Justice

7 Assistance Grant Program (“Byrne JAG” Program). See 34 U.S.C. §§ 10151-10158. The Byrne

8 JAG Program is a mandatory formula grant, meaning that funds from the grant program are

9 awarded based on a statutorily defined formula and the federal government must disburse the grant

10 if an applicant meets the requirements set forth in the authorizing statutes. See id. § 10156. The

11 Byrne JAG Program supports state and local law enforcement efforts by providing additional

12 funds for personnel, equipment, training, and other criminal justice needs. See id. § 10151. For

13 the 2017 fiscal year (“FY2017”), Congress has appropriated $396 million for the Byrne JAG

14 Program. Consolidated Appropriations Act of 2017, Pub. L. No. 115-31, 131 Stat. 135, 203.

15

The current Byrne JAG Program is the result of the merging of two earlier programs: the

16 Edward Byrne Memorial State and Local Law Enforcement Assistance Program grants; and Local

17 Law Enforcement Block Grants. See Pub. L. No. 109-162, 119 Stat. 2960, 3094 (2006).

18 Following the merger of the two programs, Congress enumerated eight type of programs that the

19 grant was meant to encompass: (1) law enforcement programs; (2) prosecution and court

20 programs; (3) prevention and education programs; (4) corrections and community corrections

21 programs; (5) drug treatment and enforcement programs; (6) planning, evaluation, and technology

22 improvement programs; (7) crime victim and witness programs; and (8) mental health programs.

23 34 U.S.C. § 10152(a)(1)(A)-(H).

24

B. The Office of Community Oriented Policing Services

25

The federal government also announced that grants issued by the Office of Community

26 Oriented Policing Services (“COPS”) would also have a Section 1373 certification condition.

27 Office of Community Oriented Policing Services’ 2017 COPS Anti-Methamphetamine

28 Program Application Guide, RJN, Ex. C at 2, Appx. D (Dkt. No. 27-1); Office of Community 5

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1 Oriented Policing Services’ 2017 COPS Office Anti-Heroin Task Force Program Application

2 Guide, RJN, Ex. D at 1-2, Appx. D (Dkt. No. 27-1). In FY 2017, access to COPS funds will have

3 threshold eligibility requirement of certified compliance with Section 1373. COPS currently

4 administers six programs, including the COPS Anti-Methamphetamine Program (“CAMP”) and

5 the Anti-Heroin-Task Force Program (“AHTF”). State law enforcement agencies use CAMP

6 funds to investigate unlawful activities related to the manufacture and distribution of

7 methamphetamine. COPS Fact Sheet, FY2017 COPS Anti-Methamphetamine Program, available

8 at https://cops. usdoj.gov/pdf/2017AwardDocs/camp/Fact_Sheet.pdf. AHTF funds are used to

9 investigate illegal activities “related to the distribution of heroin or unlawful distribution of

10 prescriptive opioids, or unlawful heroin and prescription opioid traffickers[.]” COPS Fact Sheet,

11 FY2017 COPS Anti-Heroin Task Force Program, available at https://cops.usdoj.gov/pdf/2017

12 AwardDocs/ahtf/Fact_ Sheet.pdf. CAMP and AHTF are each authorized by the Consolidated

13 Appropriations Act, 2017. H.R. 244, Pub. L. 115–31.

14 III. CALIFORNIA’S USE OF “JAG” AND “COPS” FUNDS

15

The State’s Byrne JAG Program grants are distributed to its Board of State and

16 Community Corrections (“BSCC”). BSCC has received $252.7 million from the Byrne JAG

17 program since 2006. See Declaration of Mary Jolls (“Jolls Decl.”) ¶7. For FY2017, the State

18 expects approximately $28.3 million in JAG funding, with $17.7 million going to BSCC. Id., ¶5.

19 BSCC uses the funding to issue subgrants to local jurisdictions; these jurisdictions then use them

20 for education and crime prevention programs, law enforcement programs, and court programs. Id.

21 ¶¶s 8, 10, Ex. A. BSCC currently funds programs for 32 local jurisdictions and the CalDOJ; the

22 funds benefit task forces focused on criminal drug enforcement, violent crime, and gang activity.

23 Jolls Decl. ¶10; Caligiuri Decl. ¶¶s 19-21.

24

CalDOJ has received over $11 million in COPS funding to support law enforcement efforts

25 around the State since it began. Caligiuri Decl. ¶4. For FY2017, CalDOJ applied for

26 approximately $2.8 million in CAMP and AHTF grants. The CAMP grant would cover salaries,

27 benefits, and other costs for a task force targeting enforcement against large–scale

28 methamphetamine drug trafficking organizations. See id., ¶¶s 6-8, 10. The AHTF grant covers 6

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1 equipment, consultants, and other costs for support of task forces that conduct large scale heroin

2 investigations, share data and intelligence among law enforcement throughout the State, and hold

3 education sessions in the community about drug abuse awareness. See id., ¶¶s 12-14, 16.

4 IV. SECTION 1373

5

Through the Immigration and Nationalization Act (“INA”), 8 U.S.C. §§ 1101 et seq.,

6 Congress granted the executive branch near plenary power over the regulation and enforcement of

7 immigration laws in the U.S. See Arizona v. United States, 567 U.S. 387, 396 (2012). Most

8 pertinent to this lawsuit, Section 1373 of the INA, which was passed in 1996, prohibits local

9 governments from restricting government officials or entities from communicating information

10 regarding immigration status to the U.S. Immigration and Customs Enforcement (“ICE”). It states

11 in relevant part:

12

(a) In General. Notwithstanding any other provision of Federal,

13

State, or local law, a Federal, State, or local government entity or

official may not prohibit, or in any way restrict, any government

14

entity or official from sending to, or receiving from, the Immigration

and Naturalization Service information regarding the citizenship or

15

immigration status, lawful or unlawful, of any individual.

16

(b) Additional Authority of Government Entities. Notwithstanding

any other provision of Federal, State, or local law, no person or

17

agency may prohibit, or in any way restrict, a Federal, State, or local

government entity from doing any of the following with respect to

18

information regarding the immigration status, lawful or unlawful, of

any individual: 19

(1) Sending such information to, or requesting or receiving

20

such information from, the Immigration and Naturalization

Service. 21

(2) Maintaining such information. 22

(3) Exchanging such information with any other Federal,

23

State, or local government entity.

24 U.S.C. 1373.

25

In the 2016 fiscal year (“FY16”), OJP identified Section 1373 as an applicable federal law

26 for the Byrne JAG Program for the first time since the program’s inception. See Decl. of Alan R.

27 Hanson (Hanson Decl.) ¶ 3 (Dkt. No. 42-1). In receiving the award, the State accepted the Section

28 1373 compliance condition as it relates to the FY 2016 Byrne JAG Program grant. See 7

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1 California’s FY 2016 Byrne JAG Program Award Document, Hanson Decl., Ex. A (Dkt. No. 42-

2 1). In July 2017, OJP sought applications for the FY 2017 Byrne JAG Program. See Edward

3 Byrne Memorial Justice Assistance Grant Program FY 2017 State Solicitation, Request for

4 Judicial Notice (“RJN”), Ex. A (Dkt. No. 27-1). This solicitation informed prospective applicants

5 that the FY 2017 award would be conditioned on all grantees certifying compliance with Section

6 1373. Id. at 31. The State’s Attorney General must sign a standard affidavit, under penalty of

7 perjury, affirming compliance with Section 1373 on behalf of the State and “any entity, agency, or

8 official” as applicable to the “program or activity to be funded.” Id. at Appx. II. Governor

9 Edmund G. Brown must also adopt that certification under penalty of perjury. Id. at Appx. I.

10

California Department of Justice (“CalDOJ”) submitted its applications with the executed

11 certifications for AHTF and CAMP on July 7 and 10, respectively. Decl. of Christopher Caligiuri

12 (“Caligiuri Decl.”) ¶¶ 9, 15 (Dkt. No. 30). As part of their applications, CalDOJ included a

13 supplemental statement with its COPS Section 1373 certifications. Id. It clarified that its

14 certifications were made “as [Section 1373] is lawfully interpreted,” and reserved its rights to

15 challenge “any unconstitutional enforcement of Section 1373.” Id. The federal government has

16 yet to respond to CalDOJ’s applications. See id. ¶¶ 11, 17.

17 V. 18

THE DISPUTE IN CALIFORNIA On April 21, 2017, the federal government sent letters to nine jurisdictions that received

19 the JAG award in 2016, including the State, demanding an official legal opinion that explained the

20 jurisdictions’ compliance with Section 1373. Department of Justice, Letter to Kathleen Howard,

21 Executive Director of the California Board of State and Community Corrections from Alan R.

22 Hanson, Acting Assistant Attorney General for the Office of Justice Programs (April 21, 2017),

23 RJN, Ex. I (Dkt. No. 27-2); Press Release, U.S. Dep’t of Justice, Department of Justice Sends

24 Letter to Nine Jurisdictions Requiring Proof of Compliance with 8 U.S.C. § 1373 (Apr. 21, 2017),

25 RJN, Ex. M (Dkt. No. 27-3). On June 29, BSCC submitted the requested legal opinion explaining

26 the State’s laws do not violate Section 1373. See Jolls Decl., Ex. C (Dkt. No. 20-1). Having not

27 received a response when other jurisdictions had received guidance on Section 1373 compliance,

28 on October 31, the State filed a Motion for Preliminary Injunction to prevent enforcement of the 8

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1 Section 1373 conditions as to the TRUTH Act and its Confidentiality Statutes.

2

On November 1, 2017, the federal government sent a preliminary compliance assessment

3 letter to California and alerted the State that three provisions of the Values Act may violate

4 Section 1373. Department of Justice, Letter to Kathleen Howard, Executive Director of the

5 California Board of State and Community Corrections from Alan R. Hanson, Acting Assistant

6 Attorney General for the Office of Justice Programs (November 1, 2017), RJN, Ex. P (Dkt. No.

7 27-3). The highlighted provisions related to: (i) inquiries into an individual’s immigration status,

8 Cal. Gov’t Code, § 7284.6(a)(1)(A), (ii) responses to notification requests, id. § 7284.6(a)(1)(C),

9 and (iii) the sharing of “personal information,” id. § 7284.6(a)(1)(D)). RJN, Ex. P at 1-2. To

10 comply with Section 1373, the federal government stated that the State must certify that: (1) it

11 does “not restrict California officers and employees from requesting information regarding

12 immigration status from federal immigration officers”, and (2) it “interprets and applies [the

13 notification request and personal information] provisions to not restrict California officers from

14 sharing information regarding immigration status with federal immigration officers, including

15 information regarding release date[s] and home address[es].” Id. at 1-2. The federal government

16 interprets the State’s laws as violating Section 1373 if it cannot make those certifications.

17

On November 13, the State replied to the federal government’s assessment letter. Hanson

18 Decl. ¶ 14. OJP has not responded. Id. ¶ 15. The federal government claims that OJP is not

19 issuing FY 2017 Byrne JAG award documents to any applicants while awaiting developments in

20 the other relevant litigation. Id. ¶ 10.

21 VI. OTHER RELATED LITIGATION

22

There have been two other lawsuits challenging the federal government’s imposition of

23 new conditions on the Byrne JAG Program grants. In addition to the Section 1373 certification

24 condition, these lawsuits addressed the federal government’s imposition of conditions requiring

25 that local authorities provide federal agents advance notice of the scheduled release from state or

26 local correctional facilities of certain individuals suspected of immigration violations (the “notice

27 condition”) and that local authorities provide immigration agents with access to local detention

28 facilities (the “access condition”). 9

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1

In City of Chicago v. Sessions, 264 F.Supp.3d 933, 951 (N.D. Ill. 2017), the court granted

2 the City of Chicago’s motion for a nationwide preliminary injunction against the imposition of the

3 notice and access conditions and denied the City of Chicago’s motion to enjoin the condition 4 requiring compliance with Section 1373.1 Id. at 951. With respect to the certification condition,

5 the court found that a provision of the Byrne JAG Program authorizing statute, 34 U.S.C. §

6 10153(a)(5)(D) that requires certification that an applicant for Byrne JAG Program funds “will

7 comply with all provisions of this part and all other applicable Federal laws” gave the federal

8 government the statutory authority to impose the Section 1373 certification condition. Id. at 944-

9 46. In the court’s view, “[t]he most natural reading of the statute authorizes the Attorney General

10 to require a certification of compliance with all other applicable federal laws, which by the

11 plainest definition includes Section 1373.” Id. at 945-46. Accordingly, the court found that the

12 City of Chicago could not demonstrate success on the merits as to the certification condition. The

13 court’s order is on appeal. See City of Chicago v. Sessions, No. 17-02991 (7th Cir. Sept 26, 2017)

14 (case heard and taken under advisement by panel on January 19, 2018).

15

In City of Philadelphia v. Sessions, No. 17–3894, ––– F.Supp.3d ––––, 2017 WL 5489476,

16 at *61-62 (E.D. Pa. Nov. 15, 2017), the court granted the City of Philadelphia’s motion for

17 preliminary injunction against the imposition of each of the challenged conditions for the Byrne

18 JAG Program grants. The court found that the federal government’s imposition of the notice and

19 access conditions was without appropriate statutory authority under the APA because it was clear

20 that Section 10102(a)(6), which the federal government argues grants it authority to impose the

21 conditions, did not authorize any of the challenged conditions. Id. at *25-27. As to the

22 certification condition, the court found that Section 10153(a)(5)(D) may act as a separate grant of

23 authority allowing the federal government’s imposition of the certification condition. Id. But the

24 court held that imposition of the certification condition is arbitrary and capricious under the APA

25 because the federal government “failed to give adequate reasons for its decisions examining the

26 relevant data and articulating a satisfactory explanation for its action including rational connection

27

28

1 As a result of the nationwide injunction, this Order focuses on the certification condition, which has not been enjoined.

10

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1 between the facts found and the choice made.” Id. at *33 (citing Encino Motorcars, LLC v.

2 Navarro, 136 S.Ct. 2117, 2125 (2016); Motor Vehicle Mfrs. Ass’n v. State Farm Mut. Auto. Ins.

3 Co., 463 U.S. 29, 43 (1983) (internal quotations omitted)). Further, the court found that the

4 federal government failed to consider important aspects of the problems it sought to solve and its

5 justifications could not “be ascribed to a difference in view or the product of agency expertise.”

6 Id. Accordingly, it determined that the City of Philadelphia could demonstrate success on the

7 merits as to challenged conditions.

8

The court did not rest its decision on this likely success on the merits however. It found

9 that Philadelphia’s laws substantially complied with the Byrne JAG Program conditions. Further,

10 it held that the City of Philadelphia was able to demonstrate irreparable harm and that the balance

11 of equities and the public interest weighed in its favor. Accordingly, it enjoined the federal

12 government from denying the City of Philadelphia’s Byrne JAG Program grant for FY 2017. The

13 court’s order is also on appeal. See City of Philadelphia v. Attorney General U.S., No. 18-01103

14 (3d Cir. Jan. 16, 2018)

15

LEGAL STANDARD

16

“A plaintiff seeking a preliminary injunction must establish that he is likely to succeed on

17 the merits, that he is likely to suffer irreparable harm in the absence of preliminary relief, that the

18 balance of equities tips in his favor, and that an injunction is in the public interest.” Winter v.

19 Nat’l Res. Def. Council, Inc., 555 U.S. 7, 20 (2008). This has been interpreted as a four-part

20 conjunctive test, not a four-factor balancing test. However, the Ninth Circuit has held that a

21 plaintiff may also obtain an injunction if he has demonstrated “serious questions going to the

22 merits” that the balance of hardships “tips sharply” in his favor, that he is likely to suffer

23 irreparable harm, and that an injunction is in the public interest. See Alliance for the Wild Rockies

24 v. Cottrell, 632 F.3d 1127, 1131–35 (9th Cir. 2011).

25

DISCUSSION

26 I. 27

JUSTICIABILITY The federal government argues that the State’s claims are not justiciable because the State

28 cannot demonstrate the injury-in-fact necessary to establish standing and because its claims are not 11

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1 ripe for review. These principles of standing and ripeness go to whether this court has jurisdiction

2 to hear the State’s claims. I conclude that the State has demonstrated Article III standing to

3 challenge the Section 1373 certification condition and that its claims are ripe for review.

4

The federal government challenges the justiciability of the State’s claims on standing and

5 ripeness grounds. It contends that because it has not withheld or threatened to withhold grant

6 funding on any state statute except for the Values Act, the State lacks standing to seek a ruling on

7 any other state statute. It also asserts that there is not a ripe controversy because the federal

8 government has not made a final decision as to whether the Values Act violates Section 1373. (Its

9 argument that the Values Act is not currently in effect and may never be in effect due to a

10 proposed voter referendum is moot because the referendum failed due to lack of signatures on

11 January 17, 2017.) I address standing and ripeness in turn.

12

A. Standing

13

Article III, section 2 of the Constitution limits the jurisdiction of the federal courts to

14 “Cases” and “Controversies.” Massachusetts v. EPA, 549 U.S. 497, 516 (2007); see U.S. Const.

15 art. III, §, cl. 1. “Standing is an essential and unchanging part of the case-or-controversy

16 requirement.” Lujan v. Defs. of Wildlife, 504 U.S. 555, 560 (1992). To establish standing a

17 plaintiff must demonstrate “that it has suffered a concrete and particularized injury that is either

18 actual or imminent, that the injury is fairly traceable to the defendant, and that it is likely that a

19 favorable decision will redress that injury.” Massachusetts, 549 U.S. at 517 (citing Lujan, 504

20 U.S. at 560-61). An entity facing enforcement action may establish standing by demonstrating a

21 well-founded fear of enforcement and a threatened injury that is “sufficiently real and imminent”

22 or that the well-founded fear is itself causing the present injury. Cty. of Santa Clara v. Trump, 250

23 F. Supp. 3d 497, 519 (N.D. Cal. 2017) (quoting O’Shea v. Littleton, 414 U.S. 488, 496 (1976)).

24

The State claims that it has standing to seek relief concerning the amended TRUST Act,

25 TRUTH Act, and state confidentiality statutes because it has a well-founded fear of enforcement

26 against its statutes and the requisite injury-in-fact. It contends that (1) the federal government has

27 repeatedly highlighted the State’s laws as generally not in compliance with Section 1373; (2) the

28 federal government has sought to enforce Section 1373 against laws and policies similar to its 12

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1 confidentiality statutes; and (3) the federal government expressly states that potentially

2 noncompliant laws “may not be limited to” the Values Act and “reserv[es] the right to identify

3 additional bases of potential violations of Section 1373.” RJN, Ex. P.

4

The State asserts that, because the federal government’s interpretation of Section 1373 and

5 its certification requirement undermine the “exercise of its sovereign power to create and enforce a

6 legal code,” it suffers the requisite injury-in-fact to satisfy the standing requirement. It also argues

7 that the federal government’s actions threaten the loss of Byrne JAG Program funds promised

8 under federal law as well as already awarded COPS funds, which is also sufficient to demonstrate

9 injury-in-fact.

10

The federal government responds that there is no “live controversy” regarding whether any

11 statutes other than the Values Act may comply with Section 1373 and no foreseeable injury-in-fact

12 arising out of the federal government’s view of these statutes. Additionally, it contends that any

13 assumption that the federal government will withhold grant funds based on any statute other than

14 the Values Act is purely speculative and therefore cannot be the basis for standing.

15

As I discuss below, the State has a well-founded fear of enforcement regarding the

16 amended TRUST Act, TRUTH Act, and state confidentiality statutes under the federal

17 government’s Section 1373 interpretation and certification condition. Such enforcement would

18 deprive it of federal grants to which it is otherwise entitled. The State has demonstrated Article III

19 standing.

20

1. California Has Demonstrated a Well-founded Fear of Enforcement

21

In assessing whether enforcement action is likely, courts look to the past conduct of the

22 government, as well as the government’s statements and representations, to determine whether

23 enforcement is likely or simply “chimerical.” Compare Steffel v. Thompson, 415 U.S. 452, 459

24 (1947) (finding that petitioner who had been warned twice to stop handbilling, and whose

25 companion had been arrested for handbilling, had well-founded fear of enforcement), with Poe v.

26 Ullman, 367 U.S. 497, 508 (1961) (“we cannot accept, as the basis of constitutional adjudication,

27 other than as chimerical, the fear of enforcement of provisions that have during so many years

28 gone uniformly and without exception unenforced”). A plaintiff does not need to have been 13

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1 specifically threatened with enforcement action to show that enforcement action is likely. See

2 Virginia v. Am. Booksellers Ass’n, Inc., 484 U.S. 383, 393 (1988) (plaintiffs had credible threat of

3 enforcement even though newly enacted law had not become effective and no enforcement action

4 had been brought or threatened under it). But “the threat of enforcement must at least be

5 ‘credible,’ not simply ‘imaginary or speculative.’ ” Thomas v. Anchorage Equal Rights Comm’n,

6 220 F.3d 1134, 1140 (9th Cir. 2000) (en banc) (citing Babbitt v. United Farm Workers Nat’l

7 Union, 442 U.S. 289, 298 (1979)).

8

The federal government’s contention that the State’s fear of enforcement is speculative

9 bears little weight. The federal government has actively sought to enforce Section 1373 against

10 jurisdictions whose laws are undeniably similar to the State’s confidentiality statutes. For

11 example, the federal government seeks to enforce Section 1373 against Vermont’s Model Fair and

12 Impartial Policing Policy, in which officers are required to communicate that they will not report

13 immigrants or immigration status of victims or witnesses to crimes. Letter to Vermont from Alan

14 R. Hanson, Acting Assistant Attorney General for the OJP at the DOJ, Supplemental RJN, Exh. H

15 (Dkt. No. 61). The requirements of Vermont’s law closely mirror that of California’s

16 confidentiality statutes. The same is true of Philadelphia’s policy regarding victims of crimes,

17 against which the federal government has also sought to enforce Section 1373. See RJN, Exh. R,

18 Letter to Philadelphia from Alan R. Hanson, Acting Assistant Attorney General for the OJP at the

19 DOJ (Dkt. No. 27-3). And in its November letter to the State regarding Section 1373’s

20 relationship to the Values Act, the federal government indicated that it “reserves the right to

21 identify additional bases of potential violations of Section 1373.” RJN, Ex. P.

22

Members of the Executive Branch have made no secret of their hostility to the State’s view

23 of its obligations under Section 1373. Thomas Homan, the Acting Director of Immigration and

24 Customs Enforcement, recently threatened criminal prosecution of political leaders in sanctuary

25 jurisdictions. See Interview by Fox News with Thomas Homan, Acting Director, Immigration and

26 Customs Enforcement (Jan. 2, 2018) (Stating “[w]e’ve got to start charging some of these

27 politicians with crimes” in reference to leaders in “sanctuary cities”); see also Oversight of the

28 United States Department of Homeland Security: Hearing Before the S. Comm. on the Judiciary 14

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1 (2018) (statement of Kirstjen Nielsen, United States Department of Homeland Security Director)

2 (noting that DOJ is reviewing “what avenues might be available” to hold leaders accountable for

3 “sanctuary city” policies). . On June 13, 2017, Acting Director Homan testified before Congress

4 that jurisdictions that “have some sort of policy where they don’t . . . allow [ICE] access to the

5 jails” violate Section 1373. United States. Cong. House. Appropriations Committee on Home

6 Security. June 13, 2017 (statement of Thomas Homan, Acting Director of the Immigration and

7 Customs Enforcement), RJN, Ex. S at 35, 47-48 (Dkt. No. 27-3). Further, Attorney General

8 Sessions has stated that “the State of California . . . [has] enacted statutes . . . designed to

9 specifically prohibit or hinder ICE from enforcing immigration law by . . . denying requests by

10 ICE officers and agents to enter prisons and jails to make arrests.” Letter from Jefferson B.

11 Sessions, Attorney General at the U.S. Dep’t of Justice and John F. Kelly, then-Secretary of the

12 U.S. Dep’t of Homeland Security to the Honorable Tani G. Cantil-Sakauye, Chief Justice of the

13 Supreme Court of California (March 29, 2017), RJN, Ex. T at 2 (Dkt. No. 27-3). The President

14 himself has threatened to withdraw ICE agents from California because of the state’s sanctuary

15 policies. CNN, Trump Considers Pulling ICE Agents to Punish California, Youtube (Feb. 22,

16 2018), https://www.youtube.com/watch?v=1C3coXw2AI0.

17

Taken together, these facts establish that California has a well-founded fear of enforcement

18 concerning its amended TRUST Act, TRUTH Act, and state confidentiality statutes. It has

19 demonstrated that other states that have similar statutes and practices have faced enforcement and

20 that the federal government has a contrary view of Section 1373’s reach that would affect its

21 relevant statutes. And it has established that the federal government has specifically identified the

22 State as having other policies that purportedly violate Section 1373 that were not mentioned in the

23 preliminary assessment letter. Accordingly, the State has shown that the “threat of enforcement

24 [is] credible, not simply imaginary or speculative.” Thomas, 220 F.3d at 1140.

25

2. California Has Demonstrated Injury-in-fact

26

The State asserts that because the federal government’s interpretation of Section 1373 and

27 its certification requirement undermine the “exercise of its sovereign power to create and enforce a

28 legal code,” it suffers the requisite injury-in-fact to satisfy the standing requirement. It also argues 15

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1 that the federal government’s actions threaten the loss of Byrne JAG Program funds promised

2 under federal law as well as already awarded COPS funds, which is also sufficient to demonstrate

3 injury-in-fact.

4

a. California’s claims implicate a constitutional interest

5

The State has broad police powers reserved to it under the Constitution to determine its

6 local policies and enforcement priorities pursuant to the Tenth Amendment. See Alfred L. Snapp

7 & Son, Inc. v. Puerto Rico, ex rel., Barez, 458 U.S. 592, 601 (1982) (highlighting that states have

8 a sovereign interest in “the exercise of sovereign power over individuals and entities within the

9 relevant jurisdiction—this involves the power to create and enforce a legal code, both civil and

10 criminal”); see also New York v. United States, 505 U.S. 144, 157-158 (1992) (“[T]he Tenth

11 Amendment confirms that the power of the Federal Government is subject to limits that may, in a

12 given instance, reserve power to the States.”). The State asserts that the relevant statutes here “are

13 designed to improve public safety of all Californians.” Mot. at 2 (Dkt. No. 26). The statutes

14 strengthen community policing efforts and improve public safety because immigrants are no more

15 likely to commit crimes than native-born Americans and because a clear distinction between local

16 law enforcement and immigration enforcement results in safer communities. Id. at 6.

17

These statutes reflect the State’s local judgment of what policies and practices are most

18 effective for maintaining public safety and community health. The State’s claim is that the federal

19 government’s interpretation of Section 1373 and the compliance condition conflict with its police

20 powers because the federal government seeks to compel it to change its policies in violation of the

21 Tenth Amendment. See Virginia ex rel. Cuccinelli v. Sebelius, 656 F.3d 253, 269 (4th Cir. 2011)

22 (“when a federal law interferes with a state’s exercise of its sovereign ‘power to create and enforce

23 a legal code’ [] it inflict[s] on the state the requisite injury-in-fact.”); Ohio ex rel. Celebrezze v.

24 U.S. Dep’t of Transp., 766 F.2d 228, 233 (6th Cir. 1985) (Ohio had standing to litigate the

25 constitutionality of its own law where “effective enforcement of the Ohio statute” was rendered

26 “uncertain by the formal position of the [U.S. Department of Transportation] that the Ohio statute

27 is preempted” as “threatened injury to a State’s enforcement of its safety laws” constitutes an

28 injury-in-fact). This is sufficient to demonstrate injury-in-fact for Article III standing. 16

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b. California is threatened with the loss of federal grants 1
The State claims that the federal government threatens to penalize it for failing to comply 2
with the federal government’s interpretation of Section 1373 by withholding the COPS grant and 3
the Byrne JAG Program grant. The State previously received these grants in each year since their 4
inception. This threatened injury meets Article III’s standing requirements. A “loss of funds 5
promised under federal law [] satisfies Article III’s standing requirement.” Organized Village of 6
Kake v. U.S. Dep’t of Agric., 795 F.3d 956, 965 (9th Cir. 2015). 7
In sum, the State has established both its well-founded fear of enforcement and a 8
threatened injury that is “sufficiently real and imminent.” It has Article III standing. 9
B. Ripeness 10
The federal government asserts that the State’s claims regarding the Values Act are not 11
ripe for three reasons: (1) the Office of Justice Programs has not yet responded to the State’s letter 12
regarding the Values Act and has not determined administratively whether the Act violates Section 13
1373; (2) the Values Act is not currently in effect and, due to a referendum request, may never 14
become effective; and (3) a ruling that the Values Act does not violate Section 1373 would not 15
free the State from legal jeopardy unless all its laws, together with policies implementing those 16
laws, are also consistent with Section 1373. 17
The State points out that those arguments focus on prudential, not constitutional, ripeness. 18
The State contends that its claims are constitutionally ripe because (1) its response to the 19
November 1 Letter effectively “articulated a concrete plan to violate the federal government’s 20
interpretation the law in question;” (2) the federal government made a “threat of prosecution” 21
against the State in the letter and through public statements; and (3) the federal government has 22
repeatedly sought to enforce Section 1373 over the past two months, including against the State. 23
As to the prudential ripeness standards, the State believes that the issues in this case are fit for 24
decision and that it will suffer hardship from delayed review. 25
A dispute is ripe in the constitutional sense if it “present[s] concrete legal issues, presented 26
in actual cases, not abstractions.” Colwell v. HHS, 558 F.3d 1112, 1123 (9th Cir.2009) (internal 27
quotation marks omitted). In the context of a declaratory judgment suit, the inquiry “depends 28
17

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1 upon ‘whether the facts alleged, under all the circumstances, show that there is a substantial

2 controversy, between parties having adverse legal interests, of sufficient immediacy and reality to

3 warrant the issuance of a declaratory judgment.’ ” United States v. Braren, 338 F.3d 971, 975 (9th

4 Cir.2 003) (quoting Md. Cas. Co. v. Pac. Coal & Oil Co., 312 U.S. 270, 273 (1941)).

5

Ripeness and standing are closely related because they “originate from the same Article III

6 limitation.” Susan B. Anthony List v. Driehaus, 134 S.Ct. 2334, 2341 n. 5 (2014) (internal

7 quotation marks omitted) (“[T]he Article III standing and ripeness issues in this case boil down to

8 the same question.” (internal quotation marks omitted)). As a result, the Ninth Circuit has

9 recognized that “in many cases, ripeness coincides squarely with standing’s injury in fact prong.”

10 Thomas, 220 F.3d at 1138 (“The constitutional component of the ripeness inquiry is often treated

11 under the rubric of standing . . . . Indeed, because the focus of our ripeness inquiry is primarily

12 temporal in scope, ripeness can be characterized as standing on a timeline.”).

13

In order to be constitutionally ripe, the State must demonstrate that the injury is

14 “imminent.” An injury is imminent “if the threatened injury is ‘certainly impending,’ or there is a

15 “ ‘substantial risk” that the harm will occur.’ ” Susan B. Anthony List, 134 S.Ct. at 2341 (quoting

16 Clapper v. Amnesty Int’l USA, 133 S.Ct. at 1147, 1150 n. 5 (2013)). The State asserts that it will

17 be harmed by the federal government’s interpretation of Section 1373 because the State’s laws

18 violate the federal government’s broad interpretation of Section 1373, open up the State to

19 prosecution and endanger its future grant funds. Through the federal government’s November

20 letter to the State, it showed that it intends to prosecute any entities that do not comply with its

21 interpretation of Section 1373. The federal government has also sought to enforce the compliance

22 condition with respect to other laws that mirror those of the State. And finally, the federal

23 government has explicitly stated that receipt of both the Byrne JAG Program and COPS funds are

24 conditioned on the Section 1373 certification. Accordingly, the State has demonstrated both that

25 the threatened injury is “certainly impending” and that there is a “substantial risk” that harm will

26 occur. See id. This is sufficient to establish constitutional ripeness.

27

The Ninth Circuit has previously declined to reach prudential ripeness when constitutional

28 ripeness is satisfied. See Susan B. Anthony List, 134 S.Ct. at 2347 (refusing to “resolve the

18

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United States District Court Northern District of California

1 continuing vitality of the prudential ripeness doctrine”). I follow its direction. The State has

2 demonstrated that its claims are ripe for review. I now move to the merits of its motion for

3 preliminary injunction.

4 II. LIKELIHOOD OF SUCCESS ON THE MERITS

5

The State challenges the Section 1373 certification condition on four grounds: (1) the

6 imposition of the condition is arbitrary and capricious in violation of the Administrative Procedure

7 Act (“APA”); (2) the condition violates the Spending Clause because it is unrelated to the purpose

8 of the JAG Byrne Program; (3) the State’s statutes do not violate Section 1373; and (4) the Tenth

9 Amendment does not allow for Section 1373 to “commandeer” the State’s control over

10 governmental employees and its residents’ confidential personal information. The federal

11 government responds that the Section 1373 condition is consistent with the APA and the spending

12 clause; the State cannot demonstrate that none of its laws would violate the Section 1373

13 compliance condition; and the State cannot show that the Section 1373 compliance condition

14 violates the Tenth Amendment.

15

A. APA Claim

16

The State argues that the Section 1373 certification condition is “arbitrary and capricious”

17 under the APA. The federal government contends that the APA claim cannot go forward because

18 it does not challenge “final agency action” given that the federal government has not made a final

19 determination that the State violates the certification condition. 5 U.S.C. § 704. The federal

20 government also asserts that even if APA review is available at this point in time, the challenged

21 condition is well supported by a reasoned explanation. I address each argument in turn.

22

1. Imposition of the Certifying Condition Is Final Agency Action

23

For agency action to be final, the action must (1) “mark the consummation of the agency’s

24 decisionmaking process,” meaning not “tentative or interlocutory” and (2) “be one by which rights

25 or obligations have been determined, or from which legal consequences will flow.” Bennett v.

26 Spear, 520 U.S. 154, 177-78 (1997) (quotations omitted). To satisfy the first prong of the Bennett

27 test, an agency must have “rendered its last word on the matter.” Whitman v. Am. Trucking Ass’n,

28 531 U.S. 457, 478 (2001) (quotation omitted). 19

Case 3:17-cv-04701-WHO Document 89 Filed 03/05/18 Page 20 of 28

United States District Court Northern District of California

1

The imposition of the certification condition on the Byrne JAG program meets this

2 requirement. By imposing the certification condition, the federal government has articulated that

3 certain funds, namely the COPS grants and the Byrne JAG Program grants, will require adherence

4 to the certification condition. It has rendered its final word, satisfying the first prong of the

5 Bennett test.

6

As to the second prong of the Bennett test, legal consequences clearly flow from the

7 imposition of the certification condition. Receipt of the grants is conditioned on certifying

8 compliance with the federal government’s interpretation of Section 1373. See Appalachiam

9 Power Co. v. EPA, 208 F.3d 1015, 1023 (D.C. Cir. 2000) (finding that a EPA guidance document

10 gives “marching orders” to be final agency action despite explicit language disclaiming that

11 information provided was merely guidance). Further, the State must certify compliance to the

12 federal government’s interpretation of Section 1373 under penalty of perjury. Given the parties’

13 diverging interpretation of the breadth of Section 1373, the certifying condition clearly opens up

14 the State to potential legal consequences.

15

2. It Is Too Soon To Determine Whether the Federal Government’s

Imposition of the Certifying Condition Is Arbitrary and Capricious 16

The APA requires that courts “hold unlawful and set aside agency action, findings, and

17

conclusions found to be arbitrary, capricious, an abuse of discretion, or otherwise not in

18

accordance with law.” 5 U.S.C. § 706(2)(A). The justification for an agency’s final action is

19

typically apparent as the result of formal rulemaking, notice-and-comment requirements, and

20

associated hearings. But because the State’s challenge is to grant conditions, these administrative

21

procedures were not required prior to the federal government’s decision to impose the certification

22

condition. See id. § 553(a)(2) (exempting “matter(s) relating to agency management or personnel

23

or to public property, loans, grants, benefits, or contracts” from rulemaking requirements).

24

The State argues that the identification of Section 1373 as an “applicable law” for the

25

Byrne JAG Program grant is arbitrary and capricious in violation of the APA. It contends that the

26

federal government has failed to identify a good reason for the policy change as required by the

27

APA. The federal government responds that it has met its burden to demonstrate that its reasons

28

20

Case 3:17-cv-04701-WHO Document 89 Filed 03/05/18 Page 21 of 28

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1 for imposing the condition were rational.

2

In order to demonstrate these “rational” reasons, the federal government points only to a

3 press release that it issued on July 25, 2017. See Press Release, U.S. Dep’t of Justice,

4 Backgrounder on Grant Requirements (“Backgrounder”) (July 25, 2017), available at

5 https://www.justice.gov/opa/ press-release/file/984346/download. The Backgrounder highlights

6 three of the federal government’s concerns as they pertain to Section 1373 compliance condition:

7 (1) jurisdictions that refuse to cooperate with federal immigration authorities in information

8 sharing about undocumented immigrants who commit crimes; (2) the use of federal funds for

9 policies that frustrate federal immigration enforcement; and (3) jurisdictions that jeopardize the

10 safety of their residents and undermine the Department’s ability to protect the public and reduce

11 crime and violence. City of Philadelphia v. Sessions, --- F.Supp.3d ---, 2017 WL 5489476, at *31

12 (E.D. Pa. Nov. 15, 2017). The federal government could place conditions on grants with these

13 goals in mind if there is a “rational connection between the facts found and the choice made” to

14 achieve these goals. Motor Vehicle Mfrs Ass’n v. State Farm Mut. Auto Ins. Co, 463 U.S. 29, 43

15 (1983).

16

It is not clear, however, that the certifying condition has the requisite rational connection to

17 the facts articulated in the Backgrounder. As the court in City of Philadelphia explains, the plain

18 language of Section 1373 is too broad to achieve the information sharing goal listed in the first

19 concern. 2017 WL 5489476, at *3. The immigration information implicated by Section 1373

20 captures the immigration status of all people in the United States, not merely those who are

21 present unlawfully. See 8 U.S.C. §1372. Its language does not limit its mandate to merely

22 immigrants who have committed crimes. Id. Section 1373’s language captures so broad a

23 category of individuals that requiring compliance cannot further the goal of better information-

24 sharing between the federal government and local law enforcement regarding illegal immigrants

25 who commit crimes.

26

As to the federal government’s second concern, the funds from the Byrne JAG Program

27 are used for purposes unrelated to immigration enforcement, such as funding task forces focused

28 on criminal drug enforcement, violent crime, and gang activity. Jolls Decl. ¶ 10. Consequently, 21

Case 3:17-cv-04701-WHO Document 89 Filed 03/05/18 Page 22 of 28

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1 withholding the grant funds because of the certification condition does not further the federal

2 government’s goal of prohibiting “use of federal funds for policies that frustrate federal

3 immigration enforcement.” Instead, the certification condition amounts to a way to target

4 jurisdictions that do not comply with the federal government’s interpretation of Section 1373.

5

Its third concern—jurisdictions that jeopardize the safety of their residents and undermine

6 the Department’s ability to protect the public and reduce crime and violence—is unsupported.

7 The federal government presents no evidence that there is any link between increases in crime and

8 violence and imposing the certification condition, especially given that Section 1373’s language

9 captures the immigration status of both criminal and non-criminal immigrants.

10

The State points to evidence that keeping the immigration status of undocumented

11 immigrants confidential in certain circumstances improves the community’s relationship with law

12 enforcement, making immigrants, both documented and undocumented, more likely to report

13 crimes. California Assembly Committee on Public Safety’s analysis of AB 2792 (“the TRUTH

14 Act”), RJN, Ex. F at 5 (Dkt. No. 27-2). It also highlights studies that concluded that first

15 generation immigrants, including undocumented immigrants, were considerably less likely to

16 commit violent acts than third-generation Americans. This study also revealed that living in

17 neighborhoods of concentrated immigration was associated with lower violence. California

18 Senate Committee on Public Safety’s analysis of AB 4 (“the TRUST Act”), RJN, Ex. G at 8.

19 Given the State’s evidence that immigration status is not linked to pervasive criminal activity and

20 violence and the federal government’s lack of evidence supporting such an assertion, there does

21 not appear to be rational connection between imposing the certification condition and “the

22 Department’s ability to protect the public and reduce crime and violence.”

23

All that said, criminal law impacts the INA in a variety of ways, and, as discussed below,

24 the relationship the government needs to add conditions to the receipt of grants does not need to be

25 close. While the federal government fails to identify any goal set out in the Backgrounder that is

26 furthered by the imposition of the certification condition, I am not prepared at the moment to find

27 that the certification condition is arbitrary and capricious under the APA. 5 U.S.C. § 706(2)(A).

28 The change in policy might “be ascribed to a difference in view,” Motor Vehicle, 463 U.S. at 43. 22

Case 3:17-cv-04701-WHO Document 89 Filed 03/05/18 Page 23 of 28

United States District Court Northern District of California

1 An issue that needs to be tied down is whether the federal government’s interpretation of Section

2 1373 is unconstitutional because it is so broad that it violates the State’s police powers under the

3 Tenth Amendment.

4

B. Spending Clause

5

In authorizing the Byrne JAG Program, Congress indicated its intent to require

6 “applicant[s]” to “comply with . . . all other applicable Federal laws.” See 34 U.S.C. §

7 10153(a)(5)(D). The federal government contends that there is a clear relationship between the

8 Section 1373 condition and the Byrne JAG Program goals. Relying on Mayweathers v. Newland,

9 314 F.3d 1062, 1067 (9th Cir. 2002), it argues that the condition “satisfies the ‘low-threshold’

10 relatedness inquiry.”

11

The State responds that, even at a low bar, the condition requiring compliance with Section

12 1373, an immigration statute, is unrelated to the funding of local “criminal justice” programs that

13 JAG is intended to support. The State argues that Section 1373 has no nexus to the purpose of the

14 implicated funds. To bolster its position, it points to City of Philadelphia, where the court found

15 that “federal interest in enforcing immigration laws falls outside of the scope of the Byrne JAG

16 program.” 2017 WL 5489476, at *48.

17

The State’s reliance on the statement from City of Philadelphia ignores that the court also

18 declared that “the Certification Condition appears to have some relationship with the JAG

19 Program” and that “the ‘relatedness issue’ is a close call.” Id. at *50. In New York v. United

20 States, 505 U.S. 144, 167 (1992), the U.S. Supreme Court stated that “[s]uch conditions must

21 . . . bear some relationship to the purpose of the federal spending.” (emphasis added). This

22 language does not support a demanding reading of the relatedness requirement. Rather, it appears

23 to enforce a rather low-threshold relatedness test. Given this, the Section 1373 certification

24 condition may have a sufficient nexus to the purpose of the implicated funds, depending on the

25 breadth of the federal government’s interpretation of Section 1373.

26

C. Tenth Amendment and Section 1373

27

The State contends that the federal government’s enforcement of Section 1373 against its

28 statutes constitutes commandeering of the State’s oversight of governmental employees and 23

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United States District Court Northern District of California

1 handling of its residents’ confidential personal information. In its view, the relevant question is

2 whether Section 1373 can be enforced against the state’s statutes under the Tenth Amendment of

3 the Constitution.

4

The federal government argues that it is not violating the Tenth Amendment by arguing

5 that the Values Act does not comply with Section 1373. It provides three justifications for its

6 position: (1) the dispute here does not involve a federal statutory mandate that directly regulates

7 the State, but rather a condition on receipt of federal funds that the State and its subdivisions are

8 free to accept or reject; (2) the purpose and effect of Section 1373 and the challenged grant

9 conditions are to further the express goals of the INA, not to “commandeer” state officials; and (3)

10 a mere requirement not to prohibit individuals from providing information would not violate the

11 Tenth Amendment.

12

“The Federal Government may not compel the States to enact or administer a federal

13 regulatory program.” New York, 505 U.S. at 188. “The Federal Government may neither issue

14 directives requiring the States to address particular problems, nor command the States’ officers, or

15 those of their political subdivisions, to administer or enforce a federal regulatory program.” Printz

16 v. United States, 521 U.S. 898, 935 (1997). “That is true whether Congress directly commands a

17 State to regulate or indirectly coerces a State to adopt a federal regulatory system as its own.”

18 NFIB, 132 S.Ct. at 2602.

19

I agree with the courts in City of Philadelphia, 2017 WL 5489476, at *48, and City of

20 Chicago, 264 F. Supp. 3d at 949, that whether the certification condition violates the Tenth

21 Amendment is “a unique and novel constitutional question.” No cited authority holds that the

22 scope of state sovereignty includes the power to forbid state or local employees from voluntarily

23 complying with a federal program. Section 1373 “does not require” that the State “enact any laws

24 or regulations. And it does not require state officials to assist in the enforcement of federal

25 statutes regulating private individuals.” See Reno v. Condon, 528 U.S. 141, 151 (2000). It does

26 prohibit the State from restricting its officials from assisting a federal program.

27

There is an interpretation of Section 1373 that is consistent with the constitutional

28 principles discussed in New York and Printz. See Printz, 521 U.S. at 935; New York, 505 U.S. at 24

Case 3:17-cv-04701-WHO Document 89 Filed 03/05/18 Page 25 of 28

United States District Court Northern District of California

1 161–63. Section 1373 can be interpreted not to import an affirmative duty at all. But it is not

2 clear that the federal government has adopted such an interpretation. The question is whether the

3 federal government’s interpretation exceeds the constitutional reach of Section 1373.

4

Section 1373 requires the sharing of information with the federal government “regarding

5 immigration status.” The meaning of that phrase is ambiguous. The federal government has not

6 tried to define that phrase, and has not settled on a definition now, even though some of its

7 officials are threatening criminal prosecution against political leaders whose understanding of the

8 constitutional reach of Section 1373 differs from theirs. Under the INA, almost every bit of

9 information about an individual could be relevant to status, particularly with respect to the right to

10 asylum or as a defense to removal. The State reads the phrase narrowly, as requiring only

11 information whether a person is a citizen of the US, present here in some other capacity, or

12 undocumented, which is literally what “status” is. See Steinle v. City & Cnty. of San Francisco,

13 230 F.Supp.3d 994, 1015-16 (N.D. Cal. 2017) (finding that city policy would only violate Section

14 1373 by “restricting the provision of inmates’ citizenship and immigration status to ICE”).

15

At this time, only the State’s obligation to communicate “personal information” and

16 release dates of detainees is in dispute with respect to the Values Act. There is a nationwide

17 injunction against the federal government regarding the effect of Section 1373 on other aspects of

18 the Byrne grants. City of Chicago, 264 F. Supp. 3d at 952. The personal information and dates of

19 release from jail of undocumented detainees are of obvious interest to the federal government for

20 purposes of immigration enforcement, but not so obviously for immigration status. It is valuable

21 to ICE to cross-check names and addresses of detainees to insure that it only targets persons

22 eligible for removal, and to pick them up from local jails before their release. But ICE’s

23 enforcement interest conflicts with the reason the State passed the Values Act, which was to

24 encourage cooperation between law enforcement and immigrant communities.

25

As I understand it, the disagreement here involves a subset of detained, undocumented

26 people. The State’s statutes do not impact the free flow of this information regarding those

27 accused of hundreds of the most serious state crimes; it exempts those arrested or convicted of less

28 serious, largely non-violent, offenses. The State’s law enforcement strategy depends on keeping 25

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United States District Court Northern District of California

1 the trust of immigrant communities so that, among other things, they will report crimes and rely

2 on law enforcement, not criminal gangs, for protection. The state statutes also explicitly keep

3 confidential information in juvenile records and regarding those people federal law also protects

4 who are eligible for “U” and “T” visas. The government has not articulated its position regarding

5 the confidentiality statutes in this litigation.

6

DOJ is apparently processing the COPS grant according to its usual administrative

7 procedure and has yet to make a final pronouncement, although all indications are that it will find

8 the State out of compliance with Section 1373 because of the personal information and release

9 date provisions. The federal government has authority to set immigration policy. But where that

10 policy collides with the State’s constitutional police powers, it is important to understand the

11 parameters of the federal government’s interpretation of Section 1373. Does DOJ assert that the

12 State’s confidentiality statutes should not be respected? How does it square that with the INA

13 statutes requiring confidentiality concerning the same subject matter? If personal information and

14 release dates of detainees are encompassed within Section 1373’s sweep as “regarding

15 immigration status,” what are the contours of DOJ’s definition; does it include every fact about a

16 detainee’s life, or something else? How does that square with the language and intent regarding

17 Section 1373? The State has been transparent about the purpose of its statues, but the Values Act

18 has just been implemented. What is the burden on a local enforcement agency to provide personal

19 information and release dates for persons the agency knows are undocumented (recognizing the

20 Values Act precludes officers from requesting information on status for less serious offenses, so

21 this information may not be readily available unless it is determined that Section 1373 requires the

22 agency to maintain and disclose status information)? How does the State comply with Section

23 1373 in providing information regarding immigration status?

24

Those are a few of the issues that should be clarified. I find that the record is not sufficient

25 at this stage to determine that State has shown a likelihood of success on the merits.

26 III. IRREPARABLE HARM

27

The State asserts two ways in which it will suffer imminent and irreparable harm if I deny

28 its motion for a preliminary injunction: (1) it will suffer a constitutional injury to its sovereignty if 26

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United States District Court Northern District of California

1 the fellow government follows its interpretation of Section 1373 and requires certification of such

2 interpretation from applicants of the Byrne JAG Program funds; and (2) construing Section 1373

3 to invalidate its statutes would either cause harm to its communities, eroding trust between law

4 enforcement and immigrant communities, or force the State to lose the Byrne JAG Program

5 funding, which would leave law enforcement programs detrimentally impacted. The federal

6 government argues that the State has failed to demonstrate immediate and irreparable harm

7 because (1) the amount of potential funding at stake is not coercively high; and (2) the State’s

8 claim is belied because its long delay in bringing a legal challenge despite the certification

9 requirement was required for FY 2016.

10

At the moment, the merits of the State’s constitutional claim are uncertain and its injury is

11 the delay of a $1 million grant. While delay in funding is potentially injurious, the amount is not

12 so great that the State could not cover it while the litigation continues. At this point, the injury is

13 not irreparable.

14 IV. PUBLIC INTEREST AND BALANCE OF EQUITIES

15

The remaining two factors in the preliminary injunction calculus are considered together in

16 litigation in where the federal government is a party. Nken v. Holder, 556 U.S. 418, 435 (2009).

17 The State’s evidence demonstrates how its statutes related to the confidentiality of and release of

18 immigration status information are consistent with the exercise of its police powers. It also shows

19 the important criminal law enforcement measures for which it intends to use the grant funds. The

20 federal government does not address how declining to enforce the certification condition against

21 the State would affect it.

22

On this record, the public interest would appear to be better served if the State did not have

23 to choose between the Byrne JAG Program grant funds to assist its criminal law enforcement

24 efforts and the health of its relationship with the immigrant community. But in light of the

25 uncertainty of the merits and the current lack of irreparability of the injury, these factors do not tip

26 the scale sufficiently to require injunctive relief.

27

28 27

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United States District Court Northern District of California

1

CONCLUSION

2

The issues in this case will benefit from further development. It is unclear to me whether

3 the State’s or federal government’s interpretation of Section 1373 and the Tenth Amendment will

4 prevail on the personal information and release date issues; moreover, this lawsuit addresses a

5 plethora of other issues besides those discrete ones. While the State to date has suffered an injury,

6 it is only in the delay of $1 million of a federal grant that it previously received, not in the refusal

7 to pay. I find that the State has not demonstrated that I should issue a preliminary injunction at 8 this time. Its motion is DENIED.2

9

IT IS SO ORDERED.

10 Dated: March 5, 2018

11

12

13

William H. Orrick United States District Judge

14

15

16

17

18

19

20

21

22

23

24

25

26

27 2 To the extent that I rely on the documents in this docket of which California requests judicial

28

notice, its requests for judicial notice are GRANTED. See Dkt. Nos. 27, 61, 79. All other requests for judicial notice are DENIED AS MOOT.

28

 
 Case 3:17-cv-04701-WHO Document 91-1 Filed 03/13/18 Page 1 of 19

1 XAVIER BECERRA Attorney General of California
2 SATOSHI YANAI Supervising Deputy Attorney General
3 SARAH E. BELTON LISA C. EHRLICH
4 LEE SHERMAN (SBN 272271) Deputy Attorneys General
5 300 S. Spring St., Suite 1702 Los Angeles, CA 90013
6 Telephone: (213) 269-6404 Fax: (213) 879-7605
7 E-mail: Lee.Sherman@doj.ca.gov Attorneys for Plaintiff State of California
8

9

IN THE UNITED STATES DISTRICT COURT

10

FOR THE NORTHERN DISTRICT OF CALIFORNIA

11

SAN FRANCISCO DIVISION

12

13

STATE OF CALIFORNIA, ex rel, XAVIER Case No. 17-cv-4701

14 BECERRA, in his official capacity as

Attorney General of the State of California, PLAINTIFF STATE OF CALIFORNIA’S

15

NOTICE OF MOTION AND MOTION

Plaintiff, FOR RECONSIDERATION OF THE

16

COURT’S MARCH 5, 2018 ORDER ON

v.

THE AMENDED MOTION FOR

17

PRELIMINARY INJUNCTION;

MEMORANDUM AND POINTS OF

18 JEFFERSON B. SESSIONS, in his official AUTHORITIES IN SUPPORT THEREOF

capacity as Attorney General of the United

19 States; ALAN R. HANSON, in his official Dept:

2

capacity as Principal Deputy Assistant

Judge:

Honorable William H. Orrick

20 Attorney General; UNITED STATES

Trial Date: December 10, 2018

DEPARTMENT OF JUSTICE; and DOES Action Filed: August 14, 2017

21 1-100,

22

Defendants.

23

24

25

26

27

28

State of California’s Motion for Reconsideration; MPA in Support Thereof (17-cv-4701)

Case 3:17-cv-04701-WHO Document 91-1 Filed 03/13/18 Page 2 of 19

1

TABLE OF CONTENTS

2

Page

3 Notice of Motion and Motion ......................................................................................................... 1

4 Memorandum of Points and Authorities ......................................................................................... 1 Introduction ..................................................................................................................................... 1
5 Background ..................................................................................................................................... 3

6

I. Defendants’ Briefing And Argument In This Case................................................. 3

7

II. This Court’s March 5, 2018 Order On The Amended Motion For Preliminary Injunction ............................................................................................ 5

8

III. The Federal Government’s Contradictory Claims In Its March 6, 2018

Lawsuit .................................................................................................................... 6

9 Argument ........................................................................................................................................ 7

10

I. The Federal Government’s Filing Of A Separate Lawsuit Alleging The

Values Act Violates Section 1373 Represents A Material Change in Fact

11

Supporting Reconsideration of the State’s Likelihood of Success ......................... 8

12

II. These Material Changes In Fact Support Reconsideration Of The State’s Irreparable Harm ................................................................................................... 12

13 Conclusion .................................................................................................................................... 14

14

15

16

17

18

19

20

21

22

23

24

25

26

27

28
i State of California’s Motion for Reconsideration; MPA in Support Thereof (17-cv-4701)

Case 3:17-cv-04701-WHO Document 91-1 Filed 03/13/18 Page 3 of 19

1

TABLE OF AUTHORITIES

2 3 CASES

Page

4 Alfred L. Snapp & Son, Inc. v. Puerto Rico, ex rel., Barez

5

458 U.S. 592 (1982) ..................................................................................................................13

6 Am. Trucking Ass’ns, Inc. v. City of Los Angeles 559 F.3d 1046 (9th Cir. 2009)...................................................................................................12

7 AT&T Co. v. EEOC

8

270 F.3d 973 (D.C. Cir. 2001) ....................................................................................................8

9 Bond v. United States 134 S. Ct. 2077 (2014) ..............................................................................................................11
10

11

City of New York v. United States 179 F.3d 29 (2d Cir. 1999)........................................................................................................11

12 De La Torre v. CashCall, Inc.

13

56 F. Supp. 3d 1105 (N.D. Cal. 2014) ........................................................................................7

14 Gregory v. Ashcroft 501 U.S. 452 (1991) ..................................................................................................................11
15

Herman v. Excel Corp.

16

37 F. Supp. 2d 1117 (C.D. Ill. 1999)...........................................................................................9

17 Kansas v. United States

18

249 F.3d 1213 (10th Cir. 2001).................................................................................................13

19 Kiowa Indian Tribe of Okla. v. Hoover

150 F.3d 1163 (10th Cir. 1998).................................................................................................13 20

Leslie Salt Co. v. United States

21

789 F. Supp. 1030 (N.D. Cal. 1991) ...........................................................................................9

22 Morales v. Trans World Airlines

23

504 U.S. 374 (1992) ............................................................................................................12, 13

24 New York v. United States

505 U.S. 144 (1992) ..................................................................................................................12

25

Printz v. United States

26

521 U.S. 898 (1997) ............................................................................................................11, 12

27 Roach v. Mail Handlers Ben. Plan

28

298 F.3d 847 (9th Cir. 2002).....................................................................................................11

ii

State of California’s Motion for Reconsideration; MPA in Support Thereof (17-cv-4701)

Case 3:17-cv-04701-WHO Document 91-1 Filed 03/13/18 Page 4 of 19

1

TABLE OF AUTHORITIES

(continued)

2

Page

3 Sch. Dist. No. 1J, Multnomah Cty., Or. v. ACandS, Inc. 5 F.3d 1255 (9th Cir. 1993).........................................................................................................7
4
5 FEDERAL STATUTES

6 8 U.S.C. § 1229b......................................................................................................................................10

7

§ 1373................................................................................................................................ passim

8 42 U.S.C. § 3796dd-3 ................................................................................................................................14
9

STATE STATUTES 10

11

Cal. Gov’t. Code § 7284 et seq ...............................................................................................................................1

12

§ 7284.6.......................................................................................................................................7

§ 7285.1.......................................................................................................................................6

13

§ 7285.2.......................................................................................................................................6

§ 12532........................................................................................................................................6 14

Cal. Lab. Code

15

§ 90.2...........................................................................................................................................6

16

§ 1019.2.......................................................................................................................................6

17 OTHER AUTHORITIES

18 8 C.F.R.
§ 214.2(h) ..................................................................................................................................10 19

20

21

22

23

24

25

26

27

28 iii
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1

NOTICE OF MOTION AND MOTION

2

PLEASE TAKE NOTICE that pursuant to Civil Local Rule 7-9, Plaintiff State of California

3 (“Plaintiff” or “State”) hereby moves for reconsideration of the Court’s Order of March 5, 2018,

4 denying Plaintiff’s Amended Motion for Preliminary Injunction without prejudice. Order Den.

5 Am. Mot. for Prelim. Inj., ECF No. 89 (Mar. 5, 2018) (“PI Order”). Specifically, the State

6 requests that this Court reconsider its decision denying the State’s preliminary injunction motion

7 seeking to enjoin Defendants from interpreting or enforcing 8 U.S.C. § 1373 (“Section 1373”) in 8 such a manner to withhold, terminate, or claw-back funding from, or disbar or make ineligible, 9 the State or any of its political subdivisions that apply for JAG or COPS grants on account of 10 California Government Code section 7284 et seq., i.e., the California Values Act. This motion is 11 based on this Notice of Motion and Motion, the Memorandum of Points and Authorities, the

12 Request for Judicial Notice and exhibits, as well as the papers, evidence and records on file, and 13 any other written or oral evidence or argument as may be presented to the Court.

14

MEMORANDUM OF POINTS AND AUTHORITIES

15

INTRODUCTION

16

This motion is prompted by the extraordinary actions taken by Defendants the day after the

17 Court’s orders denying the State’s Motion for Preliminary Injunction and Defendants’ Motion to 18 Dismiss. Over the course of this litigation, Defendants have repeatedly represented to this Court 19 that they have yet to reach a final determination on the Values Act’s compliance with Section 20 1373 due to the “ongoing” administrative process. At the last hearing on this matter, on February 21 28, Defendants represented the existence of active “negotiations” between the parties. On March

22 5, the Court issued its order denying the State’s Motion for Preliminary Injunction, in large part

23 because the Court did not believe it was in a position under the current record to assess the 24 likelihood of success of the State’s declaratory relief claim due to the uncertainty of the 25 administrative process and the “contours” of the federal government’s interpretation of Section 26 1373. PI Order at 1. On the same day, the Court denied Defendants’ Motion to Dismiss. Order

27 Den. Mot. to Dismiss, ECF No. 88 (Mar. 5, 2018). The Court invited the parties to conduct

28 discovery and file cross-motions for summary judgment in the upcoming months so that the Court 1
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Case 3:17-cv-04701-WHO Document 91-1 Filed 03/13/18 Page 6 of 19

1 could make a decision on the Values Act’s compliance with Section 1373 with a complete record.

2 Id. at 2; PI Order at 2.

3

Freed from the possibility of an immediately impending decision from this Court on the

4 Values Act’s compliance with Section 1373, and in order to avoid this Court from being the first

5 one to make a determination, preliminary or otherwise, on the Values Act’s compliance with

6 Section 1373, the next day, March 6, the federal government dramatically changed its position. It

7 rushed to the Eastern District of California, and filed a separate lawsuit seeking a preliminary

8 determination on the Values Act’s compliance with Section 1373 that days earlier it argued this

9 Court should not make. Notwithstanding the administrative process that was represented by

10 Defendants as supposedly ongoing less than a week earlier, in the new lawsuit the federal

11 government seeks to invalidate and enjoin several laws, including the same provisions of the

12 Values Act that were the subject of the State’s Motion for Preliminary Injunction for, on its face,

13 violating Section 1373.1

14

Not only does the federal government’s gamesmanship attempt to undermine this Court’s

15 jurisdiction to decide the Values Act’s compliance with Section 1373, the federal government’s

16 determination that the Values Act violates Section 1373, and the interpretation of Section 1373 it

17 uses to reach that determination, represents a dramatically conflicting position from the one that

18 Defendants made to the Court in this litigation. These new facts also constitute substantial

19 material changes allowing re-consideration of the State’s Motion for Preliminary Injunction.2

20 The federal government’s interpretation of the scope of Section 1373 vis-a-vis the Values Act is

21 complete. The interpretation that the federal government presented in this separate litigation

22 crystalizes that its definition of “regarding . . . immigration status” is limitless and reaches

23 information that is not unmistakably encompassed by the plain text of Section 1373. This

24 interpretation reaches into the State’s traditional police powers to direct the functioning of the

25 1 The federal government’s complaint and motion for preliminary injunction with all exhibits is attached to the Request for Judicial Notice in Support of the State of California’s Motion for
26 Reconsideration (“RJN”) as Exhibits A and B, respectively.
27 2 Pursuant to an order by the Eastern District court, on March 13, the State will be filing a motion to transfer this separate lawsuit to the Northern District of California due to the significant
28 overlap in issues and parties between that case and the one before this Court. 2
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Case 3:17-cv-04701-WHO Document 91-1 Filed 03/13/18 Page 7 of 19

1 State, and makes it impossible for the State to decline to participate in the federal program of

2 immigration enforcement. Without Court intervention, the State’s JAG and COPS funds are

3 effectively lost, and the constitutional injury imposed on the State has been exacerbated.

4

For these reasons, and those discussed herein, the State respectfully requests that its Motion

5 for Reconsideration of the Amended Motion for Preliminary Injunction be granted.

6

BACKGROUND

7 I. DEFENDANTS’ BRIEFING AND ARGUMENT IN THIS CASE

8

Defendants have consistently emphasized to this Court that: (1) they had not made a final

9 decision regarding the Values Act’s compliance with Section 1373; and (2) that their

10 interpretation of the scope of Section 1373 was unsettled, but reached only “personal

11 information,” including home addresses, and release dates. Defendants’ constant refrain has been

12 that they were working in collaboration with the State, and that they had not yet made any final

13 determinations about the State law’s compliance. In their briefing, Defendants emphasized that

14 the Office of Justice Programs (“OJP”) within the U.S. Department of Justice (“USDOJ”) had not

15 determined “whether the [Values] Act violates Section 1373,” and “has not had an opportunity to

16 fully consider the State’s arguments to the contrary.” Defs.’ Opp’n to Am. Mot for Prelim. Inj.,

17 ECF No. 42 (“Opp’n to PI”) at 17. Defendants represented that their November 1 letter alleging

18 that the Values Act may not comply with Section 1373 was only a “preliminary assessment of

19 [California’s] compliance.” Id. According to Defendants, the process was “ongoing and is

20 narrowing the scope of the dispute between the parties.” Id. at 18. Defendants reiterated these

21 points in their oral argument before the Court. Specifically, Defendants thought they “should be

22 commended for being very upfront with the State of California,” Tr. of Hr’g on Mtn. for Prelim.

23 Inj., ECF No. 71 (“PI Tr.”) at 26:22-23, and that they were still “considering [the State’s]

24 response” regarding compliance, but had not yet come to any conclusions. PI Tr. at 27:7-8; see

25 also id. at 29:22-23, 39:22-24.

26

Defendants’ position did not change by the time the parties briefed the Motion to Dismiss.

27 Defendants explicitly argued there was no ripe controversy “regarding the Values Act itself

28 because defendants have not yet made a final determination regarding whether it violates Section 3
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Case 3:17-cv-04701-WHO Document 91-1 Filed 03/13/18 Page 8 of 19

1 1373.” Mot. to Dismiss, ECF No. 77 at 21; see also 2 (OJP “has not yet reached a final decision”

2 regarding whether the Values Act violates Section 1373), 22 (OJP has not yet determined

3 “whether the [Values] Act violates Section 1373”). Weeks later, Defendants stuck to this position

4 in the reply in support of their motion: “As to the Values Act, although Defendants have

5 expressed concern that the Act appears to violate Section 1373, the parties have not yet completed

6 their discussion on that subject and DOJ has not yet issued any final determination that the Act

7 violates Section 1373.” Defs.’ Mem. in Supp. of Mot. to Dismiss, ECF No. 83 (“MTD Reply”) at

8 13. Finally, Defendants explicitly stated that “OJP has not yet determined whether to initiate

9 ‘prosecution’” because of the Values Act. Id. at 13. Defendants repeated this sentiment several

10 times at the hearing on their Motion to Dismiss: “I just want to remind the Court that there’s still

11 an administrative process going on with respect to the 1373 compliance. . . . [The Department is]

12 still in the process of . . . assessing whether there is compliance.” MTD Tr. of Hr’g on Mot. to

13 Dismiss, ECF No. 86 (“MTD Tr.”) at 6:7-12. “[T]he administrative process is not yet

14 complete. . . . there are still negotiations going on with respect to that issue.” Id. at 41:7-13.

15

On the scope and interpretation of Section 1373, Defendants also consistently represented

16 that their concern about the Values Act’s compliance with the statute was limited to the Act’s

17 regulation of the exchange of home addresses and release dates, while not “foreclose[ing]” them

18 from interpreting Section 1373 more broadly at “some future opportunity.” MTD Tr. at 15:19-20.

19 In their November 1, 2017 letter to the State, Defendants only identified being concerned with

20 home addresses and release dates. Ex. P to Req. for Judicial Notice in Supp. of the State of

21 California’s Am. Mot. for Prelim. Inj., ECF No. 27 (Nov. 7, 2017). At the hearing on the Motion

22 to Dismiss, when discussing the reach of Section 1373 against the Values Act, Defendants stated

23 they had identified only two “very narrow” areas of information definitely covered, including

24 “personal information, which would be name and address, primarily; and also the release date

25 when the individual’s released from incarceration . . . .” MTD Tr. at 15:9-14. Defendants

26 reiterated several times that they had only identified these two pieces of information as within the

27 scope of Section 1373 and their dispute with the Values Act. See MTD Tr. at 16:7-8 (“We’ve

28 identified two things that we think naturally fall within the definition.”); id. at 45:11-14 (when 4
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Case 3:17-cv-04701-WHO Document 91-1 Filed 03/13/18 Page 9 of 19
1 pressed by the court Defendants stated “And we have articulated exactly what we think it means.
2 The Court: Those two things? Mr. Readler: Yes.”). Moreover, in contemporaneous briefing in
3 the related case before this Court, Defendants specified certain categories of information that
4 were not within the ambit of Section 1373. See, e.g., Reply in Supp. of Defs.’ Mot. to Dismiss,
5 City and County of San Francisco v. Sessions, No. 17-cv-04642, ECF No. 72 (“SF MTD Reply”)
6 at 7 (stating that whether a person receives unemployment services, vehicle registration
7 information, and payment of utility bills are not encompassed within information “regarding” a
8 person’s immigration status).
9 II. THIS COURT’S MARCH 5, 2018 ORDER ON THE AMENDED MOTION FOR PRELIMINARY INJUNCTION
10 Based on the representations made by Defendants, this Court determined in its March 5 PI
11 Order that the Court was unable to assess the State’s likelihood of success on its claim seeking
12 declaratory relief on Section 1373 under the current record. The State sought preliminary relief
13 preventing Defendants from interpreting Section 1373 in such a manner as to withhold JAG and
14 COPS funds on the basis of the Values Act, see ECF No. 26-1. On the potential conflict between
15 the State’s powers under the Tenth Amendment and the federal government’s power under
16 Section 1373, the Court looked to the federal government’s failure to articulate a specifically-
17 clear position on the breadth of the statute in finding the issues not clear to decide. For example,
18 the Court recognized that “[a]n issue that needs to be tied down is whether the federal
19 government’s interpretation of Section 1373 is unconstitutional because it is so broad that it
20 violates the State’s police powers under the Tenth Amendment.” PI Order at 23. And later, the
21 Court emphasized that the federal government “has not tried to define” the phrase “regarding
22 immigration status.” Id. at 25. This made it difficult to reach a decision because to understand
23 the constitutional issue “it is important to understand the parameters of the federal government’s
24 interpretation of Section 1373.” Id. at 26. The Court concluded that there were a “number of
25 open questions concerning the federal government’s positions concerning the provisions of the
26 statutes in question,” id. at 2, including “[i]f personal information and release dates of detainees
27 are encompassed within Section 1373’s sweep as ‘regarding immigration status,’ what are the
28
5
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Case 3:17-cv-04701-WHO Document 91-1 Filed 03/13/18 Page 10 of 19

1 contours of DOJ’s definition; does it include every fact about a detainee’s life, or something

2 else?” Id. at 26.

3

The uncertainty surrounding the record on Section 1373 also impacted the Court’s

4 determination that the State did not face irreparable harm. The Court found that harm was not

5 irreparable because “[p]ayment is delayed, for the moment.” Id. at 2. This was only a temporary

6 state of affairs while the “DOJ appears to be using its regular administrative process to decide

7 whether it will follow its initial inclinations” regarding the Values Act failing to comply with

8 Section 1373. Id. The Court relied on Defendants’ repeated claim that they had not yet made a

9 final determination on whether the Values Act conflicted with Section 1373, nor finalized their

10 interpretation of the statute, contributing to the Court’s conclusion that the harm “at this point”

11 was not irreparable. Id. at 27. Specifically, the Court pointed out that the “constitutional claims

12 are uncertain,” as discussed above, and concluded that the $1 million COPS grant was only

13 “delay[ed],” and did not constitute a “refusal to pay.” Id. at 27-28.

14 III. THE FEDERAL GOVERNMENT’S CONTRADICTORY CLAIMS IN ITS MARCH 6, 2018 LAWSUIT
15 The day after the Court issued the PI Order, the federal government filed a complaint in the
16 Eastern District of California alleging the Values Act was invalid under the Supremacy Clause
17 and in direct violation of Section 1373. See RJN Ex. A (federal government complaint against
18 the State of California, filed Mar. 6, 2018 (“Compl.”)). The federal government asked the court
19 there to preliminarily enjoin the Values Act.3 See RJN Ex. B (federal government’s Mot. for
20 Prelim. Inj., filed Mar. 6, 2018 (“U.S. PI Mot.”)).
21 The arguments made in this new lawsuit represent a material change in evidence from what
22 the federal government presented to this Court prior to the PI Order in two respects. First, the
23 federal government now lays out a different and broader interpretation of the reach of Section
24 3 The federal government also challenges other state laws that it contends “obstruct the United
25 States’ enforcement of federal immigration law.” See generally Compl. ¶¶ 3, 60-65 (challenging Cal. Lab. Code §§ 90.2 and 1019.2; Cal. Gov’t Code §§ 7285.1, 7285.2, 12532). While these laws
26 are not directly impacted by the State’s Motion for Preliminary Injunction, the nature of the federal government’s claims, and the State’s defenses, in that litigation will involve the
27 constitutional issues surrounding the intersection between the State’s “broad constitutional police powers under the Tenth Amendment” and the federal government’s immigration powers. See PI
28 Order at 1.
6
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Case 3:17-cv-04701-WHO Document 91-1 Filed 03/13/18 Page 11 of 19

1 1373. For example, for the first time, the federal government indicated that work addresses, in

2 addition to home addresses, would be covered by Section 1373. U.S. PI Mot. at 29. To justify

3 their attempt to invalidate the Values Act under Section 1373, as discussed below, the federal

4 government relies on an interpretation of Section 1373 that confirms that it interprets that statute

5 as essentially reaching all information that state and local governmental agencies may possess

6 about a person’s life. Second, in this separate lawsuit, the federal government made absolutely

7 clear that there is no ongoing question of whether the federal government views the Values Act as

8 complying with Section 1373. The complaint is premised on the notion that the Values Act

9 should be enjoined because provisions of the Values Act at issue in this case “expressly violat[e]

10 8 U.S.C. § 1373(a)” on its face. Compl. ¶ 59; see also ¶¶ 55, 65. Moreover, the federal

11 government’s motion for preliminary injunction explicitly states that the same exact provisions of

12 the Values Act that were the subject of the State’s Motion for Preliminary Injunction, Cal. Gov.

13 Code § 7284.6(a)(1)(C)-(D), “directly conflict with 8 U.S.C. § 1373(a).” U.S. PI Mot. at 27.

14

ARGUMENT

15

“A district court has inherent jurisdiction to modify, alter, or revoke a prior order.” De La

16 Torre v. CashCall, Inc., 56 F. Supp. 3d 1105, 1107 (N.D. Cal. 2014). Under Ninth Circuit

17 precedent, reconsideration is appropriate when “the district court (1) is presented with newly

18 discovered evidence, (2) committed clear error or the initial decision was manifestly unjust, or (3)

19 if there is an intervening change in controlling law.” See Sch. Dist. No. 1J, Multnomah Cty., Or.

20 v. ACandS, Inc., 5 F.3d 1255, 1263 (9th Cir. 1993).

21

The federal government’s action against the State (1) alleging that the Values Act expressly

22 violates Section 1373, and (2) solidifying their broad definition of Section 1373, which, in ways,

23 contradicts the definition that Defendants presented to this Court, constitutes new material facts

24 that justify reconsideration of the Court’s previous order, as these facts underlay much of the

25 Court’s determination on certain issues.

26

27

28 7
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1 I. 2

THE FEDERAL GOVERNMENT’S FILING OF A SEPARATE LAWSUIT ALLEGING THE VALUES ACT VIOLATES SECTION 1373 REPRESENTS A MATERIAL CHANGE IN FACT SUPPORTING RECONSIDERATION OF THE STATE’S LIKELIHOOD OF SUCCESS

3

The federal government’s final determination that the Values Act violates Section 1373,

4 and its interpretation of Section 1373 to support that determination, are material differences in

5 fact that were created by the federal government one day after the Court’s PI Order. Throughout

6 the briefing on the Motion for Preliminary Injunction and Motion to Dismiss, Defendants

7 repeatedly referred to the “ongoing” administrative process as a reason for dismissing the State’s

8 First Amended Complaint (“Cal. FAC”) on ripeness grounds. See, e.g., Opp’n to PI at 17-18.

9 As late as February 28, six days before filing an action premised on the Values Act’s violation of

10 Section 1373, counsel for Defendants represented to this Court that there were “still negotiations

11 going on with respect to that issue.” See, e.g., MTD Tr. at 41:7-13.

12

While the State argued it was entitled to relief, Defendants’ representations about this

13 ongoing process caused the Court to delay making an assessment on the State’s likelihood of

14 success at this preliminary stage. Even though the Court agreed with the State that the ongoing

15 administrative process did not make the State’s declaratory claim unripe, the Court was not

16 prepared to make a preliminary ruling in light of the uncertainty regarding the federal

17 government’s interpretation of Section 1373 under the current record. See, e.g., PI Order at 2.

18

But the federal government’s lawsuit against the State constitutes the end of the line for its

19 interpretation of Section 1373 and its relation to the Values Act. For this reason, the Court no

20 longer needs a more complete record because the record now makes clear: (1) the federal

21 government believes the Values Act expressly violates Section 1373; and (2) it interprets Section

22 1373 in a manner that violates that statute’s plain text and the Tenth Amendment.

23

The filing of the lawsuit represents the final decision not only of how the federal

24 government plans to act against the State because of its determination about the Values Act, but

25 also “how it views [the State’s] legal obligations” under Section 1373. AT&T Co. v. EEOC, 270

26 F.3d 973, 975 (D.C. Cir. 2001) (when an agency files a lawsuit against a party, the agency has

27 decided “how it views [the party’s] legal obligations” and “how it plans to act upon that view”).

28 “Any doubt regarding the finality of this agency decision was removed by the [federal 8
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Case 3:17-cv-04701-WHO Document 91-1 Filed 03/13/18 Page 13 of 19

1 government] filing the instant enforcement action.” Herman v. Excel Corp., 37 F. Supp. 2d 1117,

2 1122 (C.D. Ill. 1999); Leslie Salt Co. v. United States, 789 F. Supp. 1030, 1033 (N.D. Cal. 1991)

3 (“A final agency determination reviewable by this court occurs when the [agency] files a civil

4 enforcement action . . . .”). The positions of the parties with respect to the relation of Section

5 1373 to the Values Act could not be clearer. In its lawsuit against the State, the federal

6 government alleges that the Values Act violates Section 1373 on its face, Compl. ¶¶ 55, 59,

7 contending that a facial evaluation of the Values Act is sufficient to support their motion for

8 preliminary injunction. By comparison, the State’s motion for preliminary injunction maintained

9 that it is likely to succeed on the claim that the Values Act plainly complies with Section 1373 on

10 its face. See Pl.’s Am. Mot. for Prelim. Inj., ECF No. 26 at 17-19.

11

Beyond the filing of the action itself, the federal government’s interpretation of Section

12 1373 to support its determination that it conflicts with the Values Act provides the “parameters of

13 the federal government’s interpretation of Section 1373,” and supplies the record that the Court

14 believed was lacking at the time of the PI Order. See PI Order at 26. In its motion for

15 preliminary injunction, for the first time, the federal government has specified that it believes

16 work addresses are within the scope of Section 1373. Compare U.S. PI Mot. at 29 with Nov. 1

17 Letter (only seeking clarification of whether Values Act restricts the sharing of release dates and

18 home addresses) and MTD Tr. at 45:12-14 (“Mr. Readler: And we have articulated exactly

19 what . . . we think [Section 1373] means. The Court: Those two things? Mr. Readler: Yes.”).

20

In addition, to support its final determination that the Values Act violates Section 1373, the

21 federal government presents the “contours” of its position to justify its determination that the

22 Values Act conflicts with Section 1373. U.S. PI Mot. at 29. This new position presented in this

23 separate litigation contradicts what it has represented to this Court as the boundaries of

24 information “regarding” immigration status:

25

• The federal government claims that a home address is information regarding

26

immigration status because it is relevant to “whether an alien admitted in a particular

27

nonimmigrant status (e.g., B-1 business visitor) has remained in the United States

28

beyond their authorized period of admission, evidenced an intent not to abandon his or

9

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Case 3:17-cv-04701-WHO Document 91-1 Filed 03/13/18 Page 14 of 19

1

her foreign residence, or otherwise violated the terms and conditions of such

2

admission (e.g., engaged in unauthorized employment).” U.S. PI Mot. at 29. Using

3

that same rationale, whether a person receives “unemployment services,” pays utility

4

bills, or registers his or her vehicle in the U.S. would be just as relevant to showing

5

whether a person “evidence[s] an intent not to abandon his or her foreign residence,”

6

although Defendants represented to this Court that these pieces of information are not

7

encompassed by Section 1373. SF MTD Reply at 7.

8

• The federal government suggests that work addresses are relevant to “whether [an]

9

alien has been granted work authorization as a benefit attached to a particular status or

10

form of relief.” U.S. PI Mot. at 29. Under Defendants’ interpretation of Section 1373,

11

then, the fact that a person has applied for or is receiving unemployment benefits

12

could be relevant to whether a non-immigrant visa-holder has failed to maintain the

13

required employment necessary to maintain that immigration status. See, e.g., 8

14

C.F.R. § 214.2(h). However, Defendants represented to the Court that the same

15

information is not within the scope of “regarding” immigration status. SF MTD Reply

16

at 7.

17

• The federal government also indicates that either home addresses, work addresses, or

18

both, are relevant to “whether an alien has accrued the necessary continuous presence

19

to be eligible for relief from removal.” U.S. PI Mot. at 29 (citing 8 U.S.C. § 1229b).

20

An address, alone, does not say anything about a person’s presence in the United

21

States for 5 or 10 years. See 8 U.S.C. § 1229b(a)(1), (b)(1)(A). Under the same logic,

22

whether a person has paid utility bills is just as informative of a person’s presence in

23

the United States, which Defendants also represented to this Court as not being

24

encompassed within the term “regarding” a person’s immigration status. SF MTD

25

Reply at 7.

26

To be clear, in the State’s view, none of these examples involve information regarding

27 “citizenship or immigration status” within the meaning of Section 1373. But this new, broader,

28 and contradictory interpretation from the federal government confirms that its view of 10
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1 “regarding” immigration status, indeed, “stop[s] nowhere.” Roach v. Mail Handlers Ben. Plan,

2 298 F.3d 847, 849-50 (9th Cir. 2002) (following the Supreme Court in limiting the scope of

3 “relate to” in a contract to not supersede “the historic police powers of the States” without the

4 clear intent of Congress).

5

As the federal government’s interpretation of Section 1373 in its motion for preliminary

6 injunction illustrates, if the federal government’s interpretation of Section 1373 encompasses

7 “addresses” within the meaning of information regarding “immigration status,” the term

8 “regarding immigration status” must also extend to encompass a vast array of other information

9 that state and local governments may have about a person. Under this interpretation of Section

10 1373, the State must not only allow its employees to share information about addresses and

11 release dates, but must also permit the exchange of anything that suggests that a person may take

12 up residence in the United States, and not a foreign country—enrolling their children in school or

13 the Children’s Health Insurance Program, obtaining a driver’s license, or paying state and local

14 taxes. This will cause a chilling effect, discouraging the state’s residents from interacting with

15 governmental entities, including law enforcement. See. e.g., Cal. First Am. Compl. ¶¶ 30, 41,

16 119-20. As the Second Circuit warned, even though Section 1373 does not require the sharing of

17 information regarding citizenship or immigration status, the Tenth Amendment may be

18 implicated if Section 1373 is interpreted to prohibit the shielding of “pertinent information, which

19 is essential to the performance of a wide variety of state and local governmental functions, [that]

20 may in some cases be difficult or impossible [to obtain] if some expectation of confidentiality is

21 not preserved.” City of New York v. United States, 179 F.3d 29, 36 (2d Cir. 1999).

22

Defendants’ most recent interpretation of Section 1373 does not comport with the plain text

23 of the statute or the Constitution. None of the information that is implicated by the federal

24 government’s increasingly expansive interpretation of Section 1373 is “unmistakably clear[ly]”

25 included in the statute’s text as is required to “alter the usual constitutional balance between the

26 State and Federal Government.” Gregory v. Ashcroft, 501 U.S. 452, 460-61 (1991); see also

27 Bond v. United States, 134 S. Ct. 2077, 2089 (2014). Furthermore, this interpretation indeed

28 makes “the whole object of [Section 1373] to direct the functioning of the state executive,” Printz 11
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Case 3:17-cv-04701-WHO Document 91-1 Filed 03/13/18 Page 16 of 19
1 v. United States, 521 U.S. 898, 932 (1997) (emphasis in original) by making it impossible for the
2 State to “decline to administer the federal program.” New York v. United States, 505 U.S. 144,
3 176-77 (1992). The Tenth Amendment does not authorize the federal government to place the
4 State in the “position of taking the blame for [the] burdensomeness” and consequences of
5 allowing all of its governmental employees to provide expansive information about the State’s
6 residents to immigration authorities, see Printz, 521 U.S. at 930, which the federal government’s
7 interpretation of Section 1373 would require. See FAC ¶¶ 119-20.
8 II. THESE MATERIAL CHANGES IN FACT SUPPORT RECONSIDERATION OF THE STATE’S IRREPARABLE HARM
9 The federal government’s determination that the Values Act violates Section 1373 and the
10 constitutional infirmities of its more expansive interpretation of Section 1373 also represent
11 material changes in fact and new evidence that contradict the representations the Court previously
12 relied upon to determine that the present injury to the State was not irreparable. There are no
13 longer “open questions concerning the federal government’s positions concerning” the Values
14 Act, see PI Order at 2, nor uncertainty as to the State’s constitutional claim. See id. at 26. As
15 discussed above, the State has a stronger claim that applying Section 1373 in such a way that the
16 Values Act would be in violation of that provision (which the federal government now says it
17 “expressly” is) contravenes the Tenth Amendment. These “constitutional violation[s],” coupled
18 with the monetary damages discussed below, “can suffice to show irreparable harm.” Am.
19 Trucking Ass’ns, Inc. v. City of Los Angeles, 559 F.3d 1046, 1058-59 (9th Cir. 2009) (relying on
20 Morales v. Trans World Airlines, Inc., 504 U.S. 374 (1992)) (plaintiffs were injured when they
21 faced the choice of signing unconstitutional agreements or a loss of customer goodwill and
22 business).
23 Now knowing the federal government’s definitive view that the Values Act violates Section
24 1373, in order to receive JAG or COPS funds, the State must choose between: (a) changing its
25 laws; or (b) certifying that it will comply with the federal government’s unconstitutional
26 interpretation of Section 1373. See PI Tr. at 29:16-19 (“So this year the Government is expecting
27 that the State, if they certify compliance, will be agreeing to the Government’s interpretation on
28
12
State of California’s Motion for Reconsideration; MPA in Support Thereof (17-cv-4701)

Case 3:17-cv-04701-WHO Document 91-1 Filed 03/13/18 Page 17 of 19

1 the issues that we’ve raised to them.”). And with respect to JAG, the State must make such a

2 certification under penalty of perjury. Pl.’s Req. for Judicial Notice in Supp. of Am. Mot. for

3 Prelim. Inj., Ex. A, ECF No. 27-1 at Appx II. The federal government’s action intensifies the

4 already painfully stark choice the State confronts—to either change its laws or face the threat of

5 prosecution if it executes the certification. See Morales, 504 U.S. at 380-81 (injunctive relief

6 proper where “respondents were faced with a Hobson’s choice: continually violate the Texas law

7 and expose themselves to potentially huge liability; or violate the law once as a test case and

8 suffer the injury of obeying the law during the pendency of the proceedings”).

9

Moreover, the fact that the State is now faced with the choice of having to change its laws

10 in order to both receive these grant funds and avoid prosecution is enough to meet the irreparable

11 harm requirement. The State has a clear sovereign interest in “the exercise of sovereign power

12 over individuals and entities within the relevant jurisdiction-this involves the power to create and

13 enforce a legal code, both civil and criminal.” Alfred L. Snapp & Son, Inc. v. Puerto Rico, ex rel.,

14 Barez, 458 U.S. 592, 601 (1982). And courts have found that injuries to “sovereign interests and

15 public policies” can be “irreparable.” Kansas v. United States, 249 F.3d 1213, 1227 (10th Cir.

16 2001); see also Kiowa Indian Tribe of Okla. v. Hoover, 150 F.3d 1163, 1171-72 (10th Cir. 1998)

17 (prohibition against full enforcement of sovereign laws sufficient to demonstrate “irreparable

18 harm as a matter of law”). In light of the federal government’s lawsuit against the State, it is now

19 certain that the federal government will “follow[] its interpretation of Section 1373,” PI Order at

20 27, and require certification of an interpretation of Section 1373 that the federal government itself

21 is convinced “directly conflict[s]” with the Values Act. See U.S. PI Mot. at 27.

22

Finally, the implications of Defendants’ actions are fatal to the State’s chances of receiving

23 the grants they are owed and constitute a material change in fact from what this Court relied on in

24 its previous decision regarding irreparable harm. In the PI Order, this Court concluded, “While

25 the State to date has suffered an injury, it is only in the delay of $1 million of a federal grant that

26 it previously received, not in the refusal to pay.” PI Order at 28 (emphasis added). It is now clear

27 with respect to the COPS grant that there is not simply a “h[o]ld up” where payment is only

28 “delayed, for the moment,” while USDOJ decides whether “the State is not complying with 8 13
State of California’s Motion for Reconsideration; MPA in Support Thereof (17-cv-4701)

Case 3:17-cv-04701-WHO Document 91-1 Filed 03/13/18 Page 18 of 19

1 U.S.C. § 1373.” PI Order at 2. Rather, there has been a full denial, tantamount to a “refusal to

2 pay,” given the federal government’s clear statements in the new litigation that the provisions of

3 the Values Act at issue in this case “expressly violat[e] 8 U.S.C. § 1373(a).” U.S. Compl. ¶ 59.4

4 Moreover, while the federal government has unilaterally decided to delay provision of the JAG

5 awards for an indeterminate amount of time, the outcome with regards to the State’s application

6 now also appears to be a foregone conclusion—there is no chance that the federal government

7 will award the State and its local jurisdictions the congressionally-appropriated $28.3 million in

8 law enforcement funding, without the State first changing its laws, when the federal government

9 has stated without equivocation before another court that provisions of the Values Act expressly

10 violate Section 1373.

11

CONCLUSION

12

For the foregoing reasons, Plaintiff respectfully requests that the Court reconsider its Order

13 of March 5, 2018 denying the State’s Amended Motion for Preliminary Injunction, and grant the

14 requested injunction.

15

16

17

18

19

20

21

22

23

24

25 4 The Court suggested in its order that the amount of the COPS award “is not so great that the
26 State could not cover it while the litigation continues.” PI Order at 27. If the State does that, however, there is a risk that Defendants will withhold the State’s COPS award on that basis as
27 grant recipients cannot “supplant (replace) state, local, or BIA funds that would have been dedicated to the COPS Office-funded item(s) in the absence of the COPS Office-award (42
28 U.S.C. § 3796dd-3(a)).” ECF No. 66-1 at 5, § 4 (FY 2017 COPS award). 14
State of California’s Motion for Reconsideration; MPA in Support Thereof (17-cv-4701)

Case 3:17-cv-04701-WHO Document 91-1 Filed 03/13/18 Page 19 of 19

1 Dated: March 13, 2018

Respectfully Submitted,

2

XAVIER BECERRA

Attorney General of California

3

SATOSHI YANAI

Supervising Deputy Attorney General

4

/s/ Lee Sherman

5

/s/ Lisa C. Ehrlich

/s/ Sarah E. Belton

6

LEE SHERMAN

7

LISA C. EHRLICH

SARAH E. BELTON

8

Deputy Attorneys General

Attorneys for Plaintiff

9

State of California

10

11

12

13

14

15

16

17

18

19

20

21

22

23

24

25

26

27

28 15
State of California’s Motion for Reconsideration; MPA in Support Thereof (17-cv-4701)

 
 Case 3:17-cv-04701-WHO Document 102 Filed 04/24/18 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 STATE OF CALIFORNIA, EX REL. XAVIER BECERRA, IN HIS OFFICIAL
8 CAPACITY AS ATTORNEY GENERAL OF THE STATE OF CALIFORNIA,

9

Plaintiff,

10

v.

11 JEFFERSON BEAUREGARD SESSIONS,
12 et al.,

13

Defendants.

Case No. 17-cv-04701-WHO
ORDER DENYING REQUEST FOR LEAVE TO FILE MOTION FOR RECONSIDERATION Re: Dkt. Nos. 91-1

14

Plaintiff State of California (“the State’) has filed a motion for leave to file a motion for

15 reconsideration under Civil Local Rule 7-9. It cites two new material facts in support of its

16 request: the lawsuit filed by defendants against the State the day after I issued the Order Denying

17 Plaintiff’s Amended Motion for Preliminary Injunction (Dkt. No. 89)(“the Order”), which

18 removed any doubt that defendants will deny the State’s request for COPS funding, and

19 defendants’ insistence that work addresses as well as home addresses and release dates be

20 provided by law enforcement agencies. I agree with the State that if defendants’ lawyers had

21 included those facts in the briefing or at the hearing on defendants’ motion to dismiss about those

22 positions, I would have written the Order differently. But my decision would have been the same;

23 the State’s motion for leave to file a motion for reconsideration is DENIED.

24

The constitutional crosscurrents in this case of federalism, immigration, and the police

25 powers reserved to the State demand a more complete record, particularly as applied to a newly

26 enacted state statute (the Values Act, California Government Code section 7284 et. seq.) and a

27 seldom litigated (until now) federal statute (8 U.S.C. § 1373). Each party is asserting an

28 aggressive interpretation of its rights under the Constitution vis a vis the other. In the Order, I

Case 3:17-cv-04701-WHO Document 102 Filed 04/24/18 Page 2 of 2

United States District Court Northern District of California

1 posed a series of questions that reflect my interest in how each party’s interpretation of its rights

2 affects the other. See Order at 26. Among other things, I want to know in what ways the federal

3 government uses the type of information that is protected by the Values Act when it collects it

4 from other jurisdictions, and the method(s) by which it expects the State and local law

5 enforcement agencies to provide it. The State should identify categories of detainees whose

6 information is protected by the Values Act and those for which the federal government’s demands

7 for information under defendants’ interpretation of 8 U.S.C. § 1373 are unimpeded. And, in light

8 of the clashing constitutional and statutory rights asserted, I am curious to what extent, if any,

9 either party thinks that a balancing of the interests is necessary or appropriate.

10

I trust that each side’s briefing on summary judgment will be specific in showing how the

11 other’s positions invade and harm their constitutional and statutory prerogatives.

12

IT IS SO ORDERED.

13 Dated: April 24, 2018

14

15

16

William H. Orrick United States District Judge

17

18

19

20

21

22

23

24

25

26

27

28 2

 
 Case 3:17-cv-04701-WHO Document 137 Filed 10/05/18 Page 1 of 61

United States District Court Northern District of California

1

2

3

4

UNITED STATES DISTRICT COURT

5

NORTHERN DISTRICT OF CALIFORNIA

6

7

CITY AND COUNTY OF SAN

FRANCISCO,

Case No. 17-cv-04642-WHO

8

Plaintiff,

ORDER REGARDING MOTIONS FOR

9

v.

SUMMARY JUDGMENT

Re: Dkt. Nos. 99, 109, 111, 113, 128, 133,

10

JEFFERSON BEAUREGARD SESSIONS, 135, 136, 137, 138

11

et al.,

12

Defendants.

13

14

STATE OF CALIFORNIA, EX REL.

XAVIER BECERRA, IN HIS OFFICIAL

Case No. 17-cv-04701-WHO

15

CAPACITY AS ATTORNEY GENERAL

OF THE STATE OF CALIFORNIA, 16

Plaintiff, 17
v.

ORDER REGARDING MOTIONS FOR SUMMARY JUDGMENT

18

Re: Dkt. Nos. 116, 118, 123, 124, 129, 130,

19

JEFFERSON BEAUREGARD SESSIONS, 132 et al.,

20

Defendants.

21

INTRODUCTION

22

In fiscal year 2017, defendants Attorney General Jefferson Beauregard Sessions III and the

23 Department of Justice (collectively, the “DOJ”) announced that applicants for federal grants under

24 the Edward Byrne Memorial Justice Assistance Grant (“Byrne JAG”) program would need to

25 satisfy three new conditions for funding directed at state and local governments that have adopted

26 so-called “sanctuary city” statues and ordinances. The conditions require that grant recipients (i)

27 provide the Department of Homeland Security’s Immigration and Customs Enforcement agency

28 (“ICE”) access to their correctional facilities for immigration enforcement purposes, (ii) provide

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United States District Court Northern District of California

1 notice to ICE of the release date for detainees, and (iii) certify their compliance with 8 U.S.C. §

2 1373, a statute which prohibits state and local governments from restricting information-sharing

3 with the Department of Homeland Security.

4

These new conditions have sparked litigation around the country. See, e.g., City of

5 Philadelphia v. Sessions, Case No. 17–cv–03894; City of Chicago v. Sessions, Case No. 17–cv–

6 05720; United States v. California, Case No. 18–cv–490–JAM; City of Los Angeles v. Sessions,

7 Case No. 17–cv–07215–R. In the two separate, related actions captioned above, the State of

8 California and the City and County of San Francisco challenge the conditions requiring access,

9 notice and compliance with Section 1373, as well as the constitutionality of Section 1373.

10

DOJ has lost each time these issues have been raised thus far. It continues to withhold

11 grant funding to six states and several local jurisdictions, including California and San Francisco,

12 which it believes do not comply with the Byrne JAG program conditions for fiscal year 2017.

13 California requests that I enjoin DOJ from imposing the conditions, award the State the grants for

14 which it is eligible, and declare that certain California laws identified by the State comply with the

15 Section 1373. Alternatively, it seeks declaratory judgment finding Section 1373 unconstitutional

16 on its face. Similarly, San Francisco requests that I enjoin enforcement of the conditions, issue

17 declaratory judgment that San Francisco’s sanctuary city laws comply with Section 1373, and

18 issue an injunction restraining the DOJ from withholding Byrne JAG funding to San Francisco

19 because of Section 1373. Both ask that the scope of the injunction be nationwide. DOJ responds

20 with its own motions for summary judgment, essentially urging that I reject the requests of

21 California and San Francisco.

22

In agreement with every court that has looked at these issues, I find that: the challenged

23 conditions violate the separation of powers; Section 1373 is unconstitutional; the Attorney General

24 exceeds the Spending Power in violation of the United States Constitution by imposing the

25 challenged conditions; the challenged conditions are arbitrary and capricious; California’s and San

26 Francisco’s laws comply with Section 1373 as construed in this Order; California is deserving of

27 the mandamus relief it seeks; and both parties are entitled to a permanent injunction. Because the

28 requisites for a nationwide injunction are met as a result of the unconstitutionality of Section 1373 2

Case 3:17-cv-04701-WHO Document 137 Filed 10/05/18 Page 3 of 61

United States District Court Northern District of California

1 and the uniform effect of DOJ’s conditions on Byrne JAG grantees around the country, I will

2 follow the lead of the district court in City of Chicago and issue a nationwide injunction but stay

3 its nationwide effect until the Ninth Circuit is able to address it in the normal course on appeal.

4

BACKGROUND

5

FACTUAL BACKGROUND

6

A. Section 1373 of the Immigration and Nationality Act

7

The Immigration and Nationality Act (“INA”) granted the Executive Branch, through its

8 Department of Homeland Security (“DHS”), DOJ, and other agencies, “broad, undoubted power

9 over the subject of immigration and the status of aliens.” Arizona v. United States, 567 U.S. 387,

10 394 (2012). The INA allows the Attorney General or Secretary of Homeland Security to order the

11 removal of certain classes of immigrants from the United States. See 8 U.S.C. §§ 1227(a), 1228.

12 The Attorney General is directed to take certain detainees into custody pending removal

13 proceedings once they are released from state or local custody. See 8 U.S.C. § 1226(c)(1). To

14 enforce the immigration laws, Executive Branch agencies exercise independent discretion; the

15 INA also gives agencies tools to encourage cooperation with state and local offices to support

16 federal policy objectives. See, e.g., 8 U.S.C. § 1357(g) (authorizing state and local officers to

17 perform functions of a federal immigration officer); 8 U.S.C. § 1324(c) (authorizing state and

18 local officers to make arrests for INA violations); 8 U.S.C. § 1252c (authorizing state and local

19 officers to make arrests for unlawful reentry); Homan Decl. ¶ 36 (SF Dkt. No. 113-2) (discussing

20 Immigration and Customs Enforcement’s cooperation with state and local officers to provide

21 uniformed presence in support of enforcement efforts).

22

Relevant to the present motions for summary judgment, 8 U.S.C. § 1373 prohibits

23 restricting the communication of certain information between federal, state, and local

24 governments. It states:

25

(a) In General. Notwithstanding any other provision of Federal, State, or local law,

26

a Federal, 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,

27

the Immigration and Naturalization Service information regarding the citizenship

or immigration status, lawful or unlawful, of any individual. 28

3

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United States District Court Northern District of California

(b) Additional Authority of Government Entities. Notwithstanding any other

1

provision of Federal, State, or local law, no person or agency may prohibit, or in

2

any way restrict, a Federal, State, or local government entity from doing any of the

following with respect to information regarding the immigration status, lawful or

3

unlawful, of any individual:

4

(1) Sending such information to, or requesting or receiving such

5

information from, the Immigration and Naturalization Service.

6

(2) Maintaining such information.

7

(3) Exchanging such information with any other Federal, State, or local

government entity.

8

9

(c) Obligation to respond to inquiries. The Immigration and Naturalization Service shall respond to an inquiry by a Federal, State, or local government agency, seeking

10

to verify or ascertain the citizenship or immigration status of any individual within

the jurisdiction of the agency for any purpose authorized by law, by providing the

11

requested verification or status information.

12 8 U.S.C. § 1373.

13

B. The Office of Justice Programs and the Byrne JAG Program

14

The Office of Justice Programs (“OJP”) was established with the passage of Title I of the

15 Omnibus Crime Control and Safe Streets Act of 1968 and is managed by an Assistant Attorney

16 General. See Pub. L. No. 90-351, 82 Stat. 197 (1968), codified as amended at 34 U.S.C. § 10101,

17 et seq. The same statute created the precursor to the Byrne JAG program; the program’s current

18 iteration was established through the Violence Against Women and Department of Justice

19 Reauthorization Act of 2005. See Pub L. No. 109-162, 119 Stat. 2960 (2006); see also 34 U.S.C.

20 § 10151 (formerly 42 U.S.C. § 3750).

21

Under the Byrne JAG program, the Attorney General makes grants to state and local

22 governments through the Bureau of Justice Assistance Grant Programs, a component of the OJP.

23 See 34 U.S.C. § 10152. The grants support law enforcement efforts by providing additional

24 personnel, equipment, supplies, training, and other assistance to applicants. Id. The Byrne JAG

25 program is a formula grant program, meaning that it awards funding to all grantees by a statutorily

26 prescribed formula. See 34 U.S.C. § 10156(d)(2)(A) (stating that “the Attorney General shall

27 allocate to each unit of local government” funds determined by the established formula). Grant

28 funding derives from a state’s population and violent crime rate, to be used in one of eight 4

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United States District Court Northern District of California

1 program areas. See 34 U.S.C.§ 10156(a). Immigration enforcement is not listed as one of the

2 eight program areas for use of Byrne JAG funding. See 34 U.S.C. § 10152(a)(1). The formula

3 also allocates a portion of remaining amounts of state funding to units of local governments

4 through sub-grants. See 34 U.S.C. § 10156(c)(2).

5

California uses its JAG funds to support education and crime prevention, court programs,

6 and law enforcement programs like task forces focused on criminal drug enforcement, violent

7 crime, and gang activities. See Jolls Decl. ¶ 10 (CA Dkt. No. 29-1); Caligiuri Decl. ¶ 27 (CA Dkt.

8 No. 118-4). Under the formula, it expected to receive (through the Board of State and Community

9 Corrections) $28.3 million in JAG funding for fiscal year 2017, including $17.7 million to the

10 State and the remainder to local jurisdictions. See Jolls Decl. ¶ 5.

11

San Francisco has received Byrne JAG funding for over a decade; it applied again for

12 funding in the 2017 fiscal year. See Chyi Decl. ¶ 4 (SF Dkt. No. 105). It was entitled to receive

13 Byrne JAG program funds of $524,845 and Byrne JAG sub-grants equal to $923,401 under the

14 formula. Id. ¶¶ 7, 16. San Francisco uses the funding across six departments and for ten full-time

15 positions to support law enforcement programs focused on reducing drug trade and servicing

16 individuals with substance and mental health problems. Id. ¶¶ 10, 17, 18. Without the Byrne JAG

17 funds, San Francisco lacks the additional funding to support its Department of Children, Youth

18 and their Families, including programs like the Young Adult Court, which provides case

19 management and support to adults fighting recidivism. Id. ¶¶ 11, 19.

20

C. New Byrne JAG Program Grant Conditions

21

In fiscal year 2016, the DOJ announced that Section 1373 was an “applicable law” for

22 Byrne JAG funding, and the DOJ required grantees like California to submit a legal opinion on its

23 compliance with Section 1373. See Jolls Decl. ¶ 55, Ex. B; see also DOJ Request for Judicial

24 Notice (“RJN”) Ex. A ¶ 55 (CA Dkt. No. 125). For the following fiscal year, in July and August

25 2017, the OJP posted state and local solicitations for Byrne JAG grants that formalized other

26 conditions. See Lee Decl. ¶¶ 3–4, Exs. A–B (SF Dkt. No. 106-1). The solicitations included three

27 new conditions required for funding, each relating to federal immigration enforcement.

28

Byrne JAG grant applicants must now provide a certificate of compliance with Section

5

Case 3:17-cv-04701-WHO Document 137 Filed 10/05/18 Page 6 of 61

United States District Court Northern District of California

1 1373, signed by the jurisdiction’s chief legal officer under penalty of perjury, attesting that the

2 applicant does not have prohibitions on information-sharing with the INS about the citizenship or

3 immigration status of any individuals. See Lee Decl. ¶ 4, Ex. B at 38; CA RJN Ex. 21. California

4 certified that it complies with Section 1373, but the DOJ has not made a final determination on

5 California’s compliance. See Sherman Decl. Ex. B (CA Dkt. No. 116-5). San Francisco also

6 believes it complies with Section 1373, but the DOJ has denied this. Lee Decl. ¶ 6 Ex. D, Req. for

7 Admission No. 1.

8

Grant applicants must also have policies that satisfy “access” and “notice” conditions for

9 Byrne JAG funding. The access and notice conditions require: (i) “that agents of the United States

10 . . . are given . . . access” to any State or local government correctional facility “for the purpose of

11 permitting such agents to meet with individuals who are (or are believed by such agents to be)

12 aliens and to inquire as to such individuals’ right to be or remain in the United States;” and (ii) that

13 when a State or local correctional facility “receives from DHS a formal written request . . . that

14 seeks advance notice of the scheduled release date and time for a particular alien in such facility,

15 then such facility will honor such request and–as early as practicable . . . provide the requested

16 notice to DHS.” Lee Decl. Ex. E; Hanson Decl. ¶¶ 55–56, Ex. B (CA Dkt. No. 42-1); DOJ RJN

17 Exs. B and C (CA Dkt. No. 125). The “Rules of Construction” applicable to these new grant

18 conditions clarify that the requirements do not extend to detaining “any individual in custody

19 beyond the date and time the individual would have been released in the absence of this condition”

20 and do not mandate detaining non-citizens at the request of federal immigration officials. See DOJ

21 RJN, Exs. B and C ¶ 55.

22

D. The Office of Community Oriented Policing Services

23

In addition to new Byrne JAG program conditions, the DOJ announced that grants issued

24 by the Office of Community Oriented Policing Services (“COPS”) would require Section 1373

25 compliance as well. See DOJ RJN, Ex. F at 1. In fiscal year 2017, access to COPS funding

26 included the Section 1373 certification requirement. One of the programs administered by COPS

27 is the COPS Anti-Methamphetamine Program (“CAMP”), a competitive grant. In the past,

28 California, through its Bureau of Investigations, received CAMP funding to support law 6

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United States District Court Northern District of California

1 enforcement investigations of the unlawful manufacture and distribution of methamphetamine—

2 their work on the task force has led to seizing more than $30 million in illegal drugs since 2015.

3 See Caligiuri Decl. ¶¶ 13–19. California received $1 million in CAMP funding in November 2017

4 but was informed it could not “draw down” the funds until an inquiry was resolved into its

5 compliance with Section 1373. Id. ¶ 23.

6

E. California’s Sanctuary State Laws and Policies

7

California has enacted the following statutes that are pertinent to its compliance with the

8 access and notice conditions, the certification condition, and Section 1373: the TRUST Act, Cal.

9 Gov. Code § 7282 et seq., the TRUTH Act, Cal. Gov. Code § 7283 et seq., the Values Act, Cal.

10 Gov. Code § 7284 et seq., and six confidentiality statutes. It enacted the TRUST Act in 2013,

11 defining when local law enforcement agencies can detain individuals for up to 48 hours after an

12 ordinary release because of a civil detainer request by DHS. See CA RJN Ex. 6. The TRUST Act

13 states that local law enforcement may only comply with a DHS civil detainer if the detainer does

14 not “violate any federal, state, or local law, or any local policy,” and (1) the detainee’s criminal

15 background includes one of a delineated list of crimes, (2) the detainee was on the California Sex

16 and Arson Registry, or (3) the detainee was held after a magistrate’s finding of probable cause for

17 a serious or violent felony. See Gov. Code § 7282.5(a). The purpose behind the TRUST Act,

18 according to comments by the author, was to “establish a statewide standard for responding to ICE

19 holds and. . . prevent the prolonged detention of people who would otherwise be released from

20 custody if it were not for ICE’s request.” CA RJN Ex. 6. at 4.

21

in 2016, the TRUTH Act was enacted. It requires that local law enforcement agencies give

22 notice to inmates before an interview with any immigration officials. See CA RJN Ex. 5.

23 Notification includes informing the detainee that the interview is voluntary and that he has a right

24 to seek counsel. See Cal. Gov. Code § 7283.1(a). The local law enforcement agency must provide

25 the detainee with a copy of the federal immigration request to interview and inform the detainee

26 whether it intends to comply with the request. Id. § 7283.1(b).

27

In October 2017, the Values Act expanded on the TRUST and TRUTH Acts to address the

28 California Legislature’s concern with preserving community trust between the state and local 7

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United States District Court Northern District of California

1 governments and California’s immigrant communities. See Cal. Gov. Code § 7284.2. It amended

2 the TRUST Act by imposing additional constraints on law enforcement’s ability to share the

3 release dates of individuals, but it allows law enforcement to notify federal immigration officials

4 about an individual’s release date if the individual was convicted of a wide range of specified

5 crimes or if the information is already publicly available. See Cal. Gov. Code §§ 7282.5(a),

6 7284.6(a)(1)(C). The Values Act also prohibits law enforcement agencies from using money or

7 personnel to provide the personal information of victims and witnesses of crime for immigration

8 enforcement purposes unless the information was already publicly available. See Cal. Gov. Code

9 § 7284.6(a)(1)(D).

10

That said, the Values Act does not prohibit other forms of cooperation with federal

11 immigration authorities. It does not apply to the California Department of Corrections and

12 Rehabilitation, which responds to notification requests by ICE and transfers individuals from state

13 to federal immigration custody. See CA RJN Exs. 12-16. It does not restrict sharing criminal-

14 history via three state-run databases, participation in task forces with immigration officials, or

15 federal access to jails. See Cal. Gov. Code § 7284.6(b); Reich Decl. ¶ 12 (CA Dkt. No. 116-3).

16 Through a savings clause, the Values Act expressly authorizes compliance with Section 1373. See

17 Cal. Gov. Code § 7284.6(e).

18

California’s confidentiality statutes protect sensitive information of victims, witnesses, and

19 juveniles. California Penal Code section 422.93 prohibits law enforcement from detaining hate-

20 crime victims and witnesses who are not charged with or convicted of any state law crimes if they

21 would be detained solely for immigration violations for transfer to federal immigration officials.

22 See Cal. Penal Code § 422.93(b). California Penal Code sections 679.10 and 679.11 prohibit any

23 state entity that certifies information for U-visa and T-visa applications from disclosing

24 immigration status of individuals making the request “except to comply with federal law or legal

25 process, or if authorized by the victim or person requesting [the certification form].” Cal. Penal

26 Code §§ 679.10(k), 679.11(k); see also RJN Ex. 18. The California Welfare and Institutions Code

27 also contains two confidentiality statutes, sections 827 and 831, that provides privacy for

28 juveniles, including their immigration status, in court records. See California Welf. & Inst. Code 8

Case 3:17-cv-04701-WHO Document 137 Filed 10/05/18 Page 9 of 61

United States District Court Northern District of California

1 §§ 831(a) and 831(e). California Code of Civil Procedure section 155 also requires “information

2 regarding the child’s immigration status… remain confidential” in the federal Special Immigrant

3 Juvenile process. Cal. Civ. Proc. Code § 155(c).

4

The State’s policies seek to use limited resources for public safety rather than immigration

5 enforcement—the State Legislature concluded that limits on local law enforcement’s involvement

6 with immigration enforcement results in safer communities. See Cal. Gov. Code § 7284.2(f); CA

7 RJN Exs. 4–6. The California Assembly Committee on Public Safety, in a hearing held on June

8 13, 2017, summarized a study by the University of Illinois—Chicago that found: (i) 44 percent of

9 surveyed Latinos were less likely to contact police officers if they had been victims of a crime for

10 fear of police inquiring into their immigration status; (ii) 45 percent were less likely to volunteer

11 information about a crime and were less likely to report a crime for fear of police inquiring into

12 their immigration status; (iii) 70 percent of undocumented immigrants reported they were less

13 likely to contact law enforcement if they were victims of a crime; (iv) 28 percent of U.S.-born

14 Latinos were less likely to contact police if they were victims of a crime for fear of police

15 inquiring into their immigration status; and (v) 38 percent of Latinos feel like they are under more

16 suspicion now that local law enforcement have become involved in immigration enforcement,

17 with the figure rising to 58 percent among undocumented immigrant respondents. CA RJN Ex. 4.

18

California’s policies are based on local law enforcement’s belief that it is vital to maintain

19 trust with immigrant communities; otherwise, immigrants will “fail to disclose crimes that they

20 witness and/or are victims to out of fear of deportation.” Hart Decl. ¶¶ 7, 9, 11–18, 21, Ex. 3 (CA

21 Dkt. No. 116-3); Rosen Decl. ¶¶ 6-9, Ex. 5 (CA Dkt. No. 116-3); Wong Decl. ¶¶ 4, 34–38, 44, 48,

22 53, Ex. 10 (CA Dkt. No. 116-4). For example, in a study of 594 undocumented Mexican nationals

23 in San Diego County, 60.8 percent of respondents were less likely to report crimes they witnessed

24 to police, and 42.9 percent were less likely to report being a victim of a crime to police, if the

25 police were working together with ICE. See Wong Decl. ¶ 35. When local law enforcement

26 officials communicated that they were not working with ICE, 71.8 percent of respondents were

27 more likely to report crimes they witnessed, and 70.8 percent were more likely to report being a

28 victim of a crime to the police. See Wong Decl. ¶ 36. California finds that these results accord 9

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1 with other research on undocumented women who are victims of violent crime, sexual assault, or

2 domestic violence, and who are less likely to report these crimes if law enforcement officers are

3 working with federal immigration officials. See Wong Decl. ¶ 38.

4

F. San Francisco’s Sanctuary City Laws and Policies

5

San Francisco declared itself a City and County of Refuge in 1989 and codified its

6 Sanctuary City Laws in Chapters 12H and 12I of the San Francisco Administrative Code. See SF

7 RJN Ex. A (SF Dkt. No. 107-1). Chapter 12H expressly prohibits any City or County funds or

8 resources from being used to assist federal immigration officers to gather or share information on

9 the release status of individuals unless required by federal or state law. See S.F. Admin. Code §

10 12H.2. Chapter 12I prohibits law enforcement in San Francisco from responding to federal

11 immigration enforcement requests for notice of release dates for individuals in custody unless the

12 individual meets certain criteria, such as having a recent conviction for a serious or violent felony

13 or three separate felonies other than domestic violence. See S.F. Admin. Code § 12I.3(c), (d), (e).

14

San Francisco’s law enforcement departments have policies consistent with the Sanctuary

15 City Laws, which it also believes are not violative of Section 1373. See Sainez Decl. ¶¶ 9–11

16 (Police Department) (SF Dkt. No. 100); Fletcher Decl. ¶¶ 6–7 (Adult Probation Department) (SF

17 Dkt. No. 101); Hennessy Decl. ¶¶ 11, 17–18 (Sheriff’s Department) (SF Dkt. No. 102).

18 Additionally, the San Francisco Sheriff’s Department has policies prohibiting employees from

19 providing ICE or other federal immigration enforcement officials any access to San Francisco

20 jails, computers, databases, release dates, or contact information for inmates in its custody. See

21 Hennessy Decl. ¶¶ 17–18, Ex. D. San Francisco shares the views of California that its sanctuary

22 city policies encourage individuals to be candid with law enforcement and facilitate trust between

23 law enforcement and the community. San Francisco believes that these policies lead to greater

24 reporting of crimes, more cooperative witnesses, and more assistance with law enforcement

25 investigations. See Hennessy Decl. ¶ 8; Sainez Decl. ¶ 6.

26

PROCEDURAL BACKGROUND AND RELATED LITIGATION

27

California and San Francisco filed their respective lawsuits in August 2017, seeking to

28 enjoin DOJ from requiring the three conditions on Byrne JAG program funding and to receive 10

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1 their grant funds. The DOJ unsuccessfully moved to dismiss both suits, arguing that the plaintiffs

2 lacked Article III standing and that their complaints failed to state a claim. See Order Denying

3 Mot. to Dismiss (SF Dkt. No. 78); Order Denying Mot. to Dismiss (CA Dkt. No. 88). California

4 separately moved for a preliminary injunction, which I denied because at the time there was not

5 enough evidence to determine a likelihood of success on the merits and there was uncertainty

6 whether California’s injury was irreparable. See Order Denying Amended Mot. for Preliminary

7 Injunction (CA Dkt. No. 89).

8

Other highly relevant lawsuits are being litigated that challenge the federal government’s

9 new conditions for Byrne JAG program funding, and the federal government initiated its own

10 challenge to California sanctuary state laws like the Values Act. In City of Chicago v. Sessions,

11 264 F. Supp. 3d 933 (N.D. Ill. 2017), the district court initially granted Chicago’s motion for a

12 nationwide preliminary injunction of the access and notice conditions but denied Chicago’s

13 motion to enjoin the Section 1373 certification requirement. Id. at 951. On appeal, the Seventh

14 Circuit unanimously affirmed the lower court ruling that the new Byrne JAG program access and

15 notice conditions could not be imposed, and a divided panel affirmed the nationwide injunction.

16 See City of Chicago v. Sessions, 888 F.3d 272, 293 (7th Cir. 2018). Attorney General Sessions

17 petitioned for a rehearing en banc on the scope of the injunction and the Seventh Circuit stayed the

18 nationwide scope of the injunction while a rehearing was pending. See Order, City of Chicago v.

19 Sessions, Case No. 17–2991 (7th Cir. June 26, 2018), Dkt. No. 134. The district court then

20 granted in part and denied in part Chicago’s motion for summary judgment, this time finding that

21 Section 1373 was unconstitutional under the Tenth Amendment. See City of Chicago v. Sessions,

22 --- F. Supp. 3d. ---, Case No. 17–5720, 2018 WL 3608564, at *5 (N.D. Ill. July 27, 2018). The

23 court also issued a permanent nationwide injunction but stayed the nationwide scope of the

24 injunction because the en banc rehearing was still pending. Id. at *17. The Seventh Circuit

25 vacated its en banc hearing after the second district court order, allowing the stay to remain in

26 effect until the lower court issued a proper injunction under Federal Rule of Civil Procedure 65.

27 See City of Chicago v. Sessions, Case No. 17–2991, 2018 WL 4268814, at *2 (7th Cir. Aug. 10,

28 2018). The district court entered an order setting forth the terms of the permanent injunction 11

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1 under Rule 65, and the case is pending in the Seventh Circuit. See id., Dkt. No. 159.

2

In City of Philadelphia v. Sessions, 280 F. Supp. 3d 579, 588 (E.D. Pa. 2017), appeal

3 dismissed sub nom. City of Philadelphia v. Attorney Gen. United States, Case No. 18–1103, 2018

4 WL 3475491 (3d Cir. July 6, 2018), the court found that the access and notice conditions lacked

5 statutory authority under the Administrative Procedure Act and granted Philadelphia’s motion for

6 preliminary injunction. It enjoined the federal government from denying funds to Philadelphia for

7 fiscal year 2017. Id. On summary judgment, the court found that the new conditions were

8 arbitrary and capricious, and that Section 1373 violated the Tenth Amendment’s anti-

9 commandeering principle. City of Philadelphia v. Sessions, 309 F. Supp. 3d 289 (E.D. Pa. 2018).

10 The court also issued a declaratory judgment that Philadelphia complied with Section 1373, and it

11 issued a permanent injunction. Id. at 340–342. The Attorney General filed an appeal that is now

12 pending in the Third Circuit. See City of Philadelphia v. Attorney Gen. United States, Case No.

13 18–2648 (3rd Cir. July 26, 2018).

14

In United States v. California, 314 F. Supp. 3d 1077 (E.D. Cal. 2018), the federal

15 government sued to enjoin California’s enforcement of three state laws it believed violated the

16 Supremacy Clause of Article VI, cl. 2. The Hon. John A. Mendez of the Eastern District of

17 California granted in part and denied in part the federal government’s motion for preliminary

18 injunction. Relevant to this lawsuit, Judge Mendez held that the United States was not likely to

19 succeed on the merits of its conflict preemption claim against California’s Values Act because it

20 found “no direct conflict between SB 54 and Section 1373.” United States v. California, 314 F.

21 Supp. 3d 1077, 2018 WL 3301414, at *15 (E.D. Cal. 2018). Judge Mendez dismissed the federal

22 government’s Supremacy Clause claim concerning the Values Act without leave to amend in a

23 separate order. See United States v. California, Case No. 18–CV–490–JAM–KJN, 2018 WL

24 3361055, at *3 (E.D. Cal. July 9, 2018). The Attorney General appealed. See United States v.

25 State of California, Case No. 18–16496 (9th Cir. Aug. 9, 2018).

26

LEGAL STANDARD

27

A party is entitled to summary judgment where it “shows that there is no genuine dispute

28 as to any material fact and [it] is entitled to judgment as a matter of law.” Fed. R. Civ. P. 56(a). 12

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1 To prevail, a party moving for summary judgment must show the lack of a genuine issue of

2 material fact with respect to an essential element of the non-moving party’s claim, or to a defense

3 on which the non-moving party will bear the burden of persuasion at trial. See Celotex Corp. v.

4 Catrett, 477 U.S. 317, 323 (1986). Once the movant has made this showing, the burden then shifts

5 to the party opposing summary judgment to identify “specific facts showing there is a genuine

6 issue for trial.” Id. The party opposing summary judgment must then present affirmative

7 evidence from which a jury could return a verdict in that party’s favor. Anderson v. Liberty

8 Lobby, 477 U.S. 242, 257 (1986).

9

On summary judgment, the Court draws all reasonable factual inferences in favor of the

10 non-movant. Id. at 255. In deciding a motion for summary judgment, “[c]redibility

11 determinations, the weighing of the evidence, and the drawing of legitimate inferences from the

12 facts are jury functions, not those of a judge.” Id. However, conclusory and speculative testimony

13 does not raise genuine issues of fact and is insufficient to defeat summary judgment. See

14 Thornhill Publ’g Co., Inc. v. GTE Corp., 594 F.2d 730, 738 (9th Cir. 1979).

15

DISCUSSION

16

Before addressing the arguments on the merits, I resolve the evidentiary disputes and

17 administrative motions surrounding the motions for summary judgment.

18

EVIDENTIARY DISPUTES AND ADMINISTRATIVE MOTIONS

19

A. DOJ’s Motions to Strike Exhibits

20

DOJ moves to strike Exhibit 42 of California’s Request for Judicial Notice and Exhibits I

21 and J of the Lee Declaration in support of San Francisco’s motion for summary judgment,

22 asserting that these exhibits are privileged. See Admin. Mot. to Strike (CA Dkt. No. 123); Admin.

23 Mot. to Strike (SF Dkt. No. 109). It argues that they were inadvertently produced and notes that

24 other copies of the same documents were properly logged as privileged and withheld during

25 discovery. In July 2018, it sent a clawback letter for the inadvertently released privileged

26 documents. Id., Simpson Decl. at Ex. A. California consents to striking Exhibit 42, while San

27 Francisco has not confirmed or denied its consent to strike Exhibits I and J of the Lee Declaration.

28 Id. at 2. 13

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1

The deliberative process privilege applies to documents if they are predecisional (drafted

2 before an agency adopted a given policy) and deliberative (containing opinions, recommendations,

3 or advice while determining the agency policy). See FTC v. Warner Commc’ns Inc., 742 F.2d

4 1156, 1161 (9th Cir. 1984). Exemplary predecisional documents covered by the deliberative

5 process privilege are drafts of documents and documents fashioned as recommendations or

6 suggestions “which reflect the personal opinions of the writer rather than the policy of the

7 agency.” Assembly of State of Cal. v. U.S. Dep’t of Commerce, 968 F.2d 916, 920 (9th Cir. 1992).

8 Predecisional documents are part of the deliberative process if disclosing the document would

9 discourage candid discussions that undermine the agency’s ability to function. Id.

10

Both documents are pre-decisional and reflect personal opinions of the personnel who

11 drafted them as opposed to policy determinations. One is an internal memorandum between the

12 Acting Assistant Attorney General and the Associate Attorney General, showing pre-decisional

13 analysis of compliance with California laws and Section 1373. The other is a redlined draft

14 document about the DOJ’s decision and talking points. I GRANT the motion to strike Exhibit 42

15 of California Request for Judicial Notice and Exhibits I and J of the Lee Declaration.

16

B. San Francisco’s Motion to Exclude Declarations

17

San Francisco seeks to exclude the Madrigal and Atsatt declarations, which DOJ filed in

18 support of its opposition and cross-motion for summary judgment. See Mot. to Exclude (SF Dkt.

19 No. 128). San Francisco argues that DOJ did not comply with Federal Rules of Civil Procedure

20 26(a) or 26(e), and that DOJ cannot show that its failure to disclose the declarations was harmless

21 or justifiable. Id. at 1. DOJ contends San Francisco cannot complain of any harm from the

22 undisclosed declarations because it committed the same harmful conduct. See Opp. to Mot. to

23 Exclude (SF Dkt. No. 131).

24

Federal Rule of Civil Procedure 37(c)(1) states that if a party fails to “identify a witness as

25 required by Rule 26(a) or (e),” the party may not use the witness for “evidence on a motion, at a

26 hearing, or at a trial, unless the failure was substantially justified or is harmless.” Fed. R. Civ. P.

27 37(c)(1). Evidence that applies to Rule 37 must be excluded, as this is a “self-executing,

28 automatic sanction to provide a strong inducement for disclosure of material.” Hoffman v. Constr. 14

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1 Protective Servs., Inc., 541 F.3d 1175, 1180 (9th Cir. 2008), as amended (Sept. 16, 2008) (citing

2 Yeti by Molly, Ltd. v. Deckers Outdoor Corp., 259 F.3d 1101, 1106 (9th Cir. 2001)). Rule 37 also

3 imposes the burden of proof on the party whose evidence may be excluded. R & R Sails, Inc. v.

4 Ins. Co. of Pa., 673 F.3d 1240, 1246 (9th Cir. 2012).

5

San Francisco claims that after initial disclosures and throughout discovery, DOJ never

6 mentioned Madrigal or Atsatt at any time and there were no references to any documents authored

7 by them. See Meré Decl. ¶¶ 6, 8 (SF Dkt. No. 129). When the parties discussed limiting

8 discovery, they agreed to declarations by a limited number of fifteen custodians of records. Id. ¶¶

9 9-10. Madrigal and Atsatt were not on the finalized list of custodians, nor did DOJ amend or

10 supplement its disclosures. Id. ¶ 13. The first time that San Francisco apparently learned of the

11 declarants was in August 2018, when DOJ filed its opposition and cross-motion for summary

12 judgment. Id. ¶ 16.

13

As DOJ argues, San Francisco served supplemental initial disclosures for seven new

14 declarations the day before its opposition to the DOJ’s motion for summary judgment. See Opp.

15 to Mot. to Exclude at ¶ 2. However, San Francisco contends that two of those declarations were

16 provided only to rebut arguments made by DOJ in its motion for summary judgment, and that the

17 remaining five declarations are substantially justified because they respond to issues raised by the

18 Ninth Circuit in City & County of San Francisco v. Trump, Case No. 17–17478, 2018 WL

19 3637911 (9th Cir. Aug. 1, 2018). See Reply in Supp. of Mot. to Exclude (SF Dkt. No. 132).

20

In contrast, DOJ has not argued or alleged that its failure to disclose the Madrigal and

21 Atsatt declarations was substantially justified. Rule 37(c)(1) is “self-executing” and DOJ has not

22 met its burden of proof. Hoffman, 541 F.3d at 1180. On this basis, I GRANT the motion to

23 exclude the Madrigal and Atsatt declarations.1

24

C. Administrative Motions to File Under Seal

25

California and DOJ submitted administrative motions to file materials under seal. In July

26 2018, California filed its administrative motion to seal portions of the Caligiuri Declaration. See

27

28 1 They are not dispositive in any event. 15

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1 Admin. Mot. (CA Dkt. No. 118). That same month, DOJ filed its administrative motion to seal a

2 document designated as “Confidential” under a Protective Order in this case and produced by San

3 Francisco. See Admin. Mot. (SF Dkt. No. 111).

4

Given the historically recognized public right of access to judicial records, there is a

5 “strong presumption in favor of access.” Foltz v. State Farm Mutual Auto. Insurance Company,

6 331 F.3d 1122, 1135 (9th Cir. 2003). With dispositive motions, such as the present motions for

7 summary judgment, the presumption of access can be overcome only by demonstrating a

8 compelling reason to do so, such as an articulated interest favoring secrecy that outweighs the

9 public interest in understanding the judicial process. Kamakana v. City & Cty. of Honolulu, 447

10 F.3d 1172, 1179, 1181 (9th Cir. 2006) (stating that the movant must “present articulable facts

11 identifying the interests favoring continued secrecy.”). If the court decides to seal certain

12 documents, it must “base its decision on a compelling reason and articulate the factual basis for its

13 ruling, without relying on hypothesis or conjecture.” Hagestad v. Tragesser, 49 F.3d 1430, 1434

14 (9th Cir. 1995).

15

Here, there are compelling reasons to seal portions of California’s Caligiuri Declaration

16 and the document attached to the DOJ’s Mauler Declaration. The subject portions of the Caligiuri

17 Declaration contain details about ongoing and active criminal investigations. See Ehrlich Decl. ¶

18 4 (CA Dkt. No. 118-1). The spreadsheet attached to the Mauler Declaration also contains partially

19 redacted confidential criminal offender record information that could be reverse engineered with

20 extraneous data if unsealed. See McGrath Decl. ¶ 7 (SF Dkt. No. 112). I GRANT the

21 administrative motions to file these materials under seal.

22

D. Motions for Leave to File Amicus Briefs

23

There are also eight motions for leave to file amicus briefs with the court. See Admin.

24 Mots. for Leave (CA Dkt. Nos. 129, 130, 132; SF Dkt. Nos. 133, 135, 136, 137, 138). Because

25 each motion complies with my prior Order Regarding Amicus Briefing, I GRANT the motions.

26 See Order (CA Dkt. No. 41; SF Dkt. No. 55).

27

SEPARATION OF POWERS AND THE SPENDING CLAUSE

28

California and San Francisco argue that the new conditions are unconstitutional because

16

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1 they seek to exercise Congress’s exclusive Spending Power in violation of the constitutional

2 separation of powers and the Spending Clause. Article I of the United States Constitution

3 specifically grants the Spending Powers to Congress. “The Congress shall have Power To lay and

4 collect Taxes, Duties, Imposts and Excises, to pay the Debts and provide for the common Defence

5 and general Welfare of the United States.” Art. I, § 8, cl. 1. Congress’s Spending Power includes

6 “condition[ing] the receipt of funds, by states and others, on compliance with federal directives.”

7 State of Nev. v. Skinner, 884 F.2d 445, 447 (9th Cir. 1989); see also Fullilove v. Klutznick, 448

8 U.S. 448, 474 (1980) (“Incident to this power, Congress may attach conditions on the receipt of

9 federal funds.”).

10

Congress is in control of the Spending Power to “set the terms on which it disburses

11 federal money to the State,” Arlington Cent. Sch. Dist. Bd. of Educ. v. Murphy, 548 U.S. 291, 296

12 (2006), but if it intends to impose conditions on federal grants, “it must do so unambiguously.”

13 Pennhurst State Sch. & Hosp. v. Halderman, 451 U.S. 1, 17 (1981). By extension, the Executive

14 Branch “does not have unilateral authority to refuse to spend...funds” already appropriated by

15 Congress “for a particular project or program.” In re Aiken Cty., 725 F.3d 255, 261 n.1 (D.C. Cir.

16 2013). Congress still may, consistent with the separation of powers, delegate certain authority to

17 spend money to the Executive Branch. See Clinton v. City of New York, 524 U.S. 417, 488 (1998)

18 (“Congress has frequently delegated the President the authority to spend, or not to spend,

19 particular sums of money.”). However, the Constitution evidences the “unmistakable expression

20 of a determination that legislation by the national Congress be a step-by-step, deliberate and

21 deliberative process.” I.N.S. v. Chadha, 462 U.S. 919, 959 (1983). DOJ’s conditions on Byrne

22 JAG grant funding violate these constitutional principles.

23

A. Separation of Powers

24

DOJ argues that the context of the Byrne JAG program statute shows that Congress

25 intended to delegate discretionary authority to the Attorney General. Congress expressly amended

26 the statute to include the Assistant Attorney General’s power of “placing special conditions on all

27 grants, and determining priority purposes for formula grants.” USDOJ Reauthorization Act, §

28 1152(b), 119 Stat. at 3113, codified at 34 U.S.C. § 10102(a)(6). 17

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1

San Francisco and California offer three generally overlapping arguments to contend that

2 DOJ’s conditions on Byrne JAG program funds violate the separation of powers. First, they

3 contend that Congress, through the Byrne JAG program, only authorizes the Attorney General to

4 exercise ministerial powers and not the limitless discretionary authority to impose new conditions.

5 Second, they challenge the notion that 34 U.S.C. § 10102(a) justifies the Attorney General’s

6 authority to impose the access and notice conditions. Finally, they argue that the Byrne JAG

7 statute does not permit the certification condition because Section 1373 is unconstitutional

8 considering the anti-commandeering principle and the Supreme Court’s recent decision in Murphy

9 v. NCAA, 138 S. Ct. 1461 (2018). Each of these points is discussed in turn.

10

1. The Byrne JAG Program Does Not Grant the Attorney General

Authority to Impose the Challenged Conditions 11

The Byrne JAG Program is a formula grant program, not a discretionary program, meaning

12

that Congress has already determined who the recipients are and how much money they receive.

13

See City of Los Angeles v. McLaughlin, 865 F.2d 1084, 1088 (9th Cir. 1989) (“In the formula

14

grant program the authorizing Act of Congress determines who the recipients are and how much

15

money each shall receive.”). The operative statute leaves it to the Attorney General to determine

16

and make the formula grants “in accordance with the formula established under section 10156 of

17

this title...” for specified purposes such as law enforcement programs, court programs, and drug or

18

preventative education programs. 34 U.S.C. § 10152(a)(1)(A)–(H). The question becomes to

19

what extent Congress granted DOJ, and the Assistant Attorney General heading OJP, the power to

20

impose its own conditions on Byrne JAG grants.

21

Starting with the text itself, the Byrne JAG statute contains limited discretionary authority

22

for the Attorney General to carry out specific parts of the grant program. Chevron, U.S.A., Inc. v.

23

Nat. Res. Def. Council, Inc., 467 U.S. 837, 842 (1984) (“First, always, is the question whether

24

Congress has directly spoken to the precise question at issue.”). The statute provides discretionary

25

authority over waiving the “program assessment component” requirement, id. at § 10152(c)(1)–

26

(2), allowing prohibited uses of the funds in “extraordinary and exigent circumstances,” id. at §

27

10152(d)(2), and renewing funds for four-year periods. Id. § 10152(f). Applicants must submit

28

18

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1 their applications to the Attorney General in a certain format, and the Attorney General has

2 discretion related to that ministerial process. For instance, the statute requires assurances that the

3 applicant maintains certain programmatic and financial records “as the Attorney General may

4 reasonably require.” Id. at § 10153(a)(4). Completed applications require a certification, “made

5 in a form acceptable to the Attorney General,” that the application contains correct information

6 and that the funds will generally be used for the program the applicant seeks funding for. Id. at §

7 10153(a)(5). Congress provided discretion for DOJ to reserve up to five percent of funds to award

8 to one or more states or local governments under § 10152 where there is a special need like

9 “extraordinary increases in crime.” Id. at § 10157(b). Some authority to reduce the amount paid

10 is explicit in § 10158(b)(3), stating that “the Attorney General shall reduce amounts to be provided

11 . . .” if the recipient fails to spend the money as planned and does not repay it. Id. at §

12 10158(b)(3). None of these provisions grant the Attorney General authority to impose the

13 challenged conditions.

14

Other actions or inactions of Congress do not support DOJ’s position. Congress has

15 exercised its power to impose conditions on Byrne JAG funding in the past, legislating a ten

16 percent withholding of Byrne JAG funds for failing to implement federal Sex Offender

17 Registration and Notification Act, 34 U.S.C. § 20927(a), a penalty for failing to implement the

18 Death in Custody Act, id. § 60105(e)(2), and a penalty for failing to certify compliance with

19 Prison Rape Elimination Standards. See id. § 30307(e)(2). In 2005, Congress repealed the only

20 directly immigration-related requirement for Byrne JAG program funding. See Violence Against

21 Women and Department of Justice Reauthorization Act, H.R. Rep. 109-233, 109th Cong. at 8

22 (2005). Several amici insist that Congress intentionally entrusted state and local jurisdictions with

23 the discretion to tailor funds to their needs, recognizing the need for “flexibility to spend [federal]

24 money for programs that work for them rather than to impose a ‘one size fits all’ solution.” See,

25 e.g., Amicus Brief (CA Dkt No. 129; SF Dkt. No. 133) (quoting H.R. Rep. 109-233, at 89 (2005)).

26

San Francisco points out that Congress has chosen not to exercise its power to impose

27 immigration conditions on Byrne JAG grants in the past, rejecting such legislation several times.

28 See, e.g., Stop Sanctuary Cities Act, S. 1814, 114 Cong. § 2(b)(2) (2015); Enforce the Law for 19

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1 Sanctuary Cities Act, H.R. 3009, 114th Cong. § 3(b) (2015). DOJ believes this is unpersuasive.

2 See FTC v. AT&T Mobility LLC, 883 F.3d 848, 857–58 (9th Cir. 2018) (“Such proposals lack

3 ‘persuasive significance’ because ‘several equally tenable inferences may be drawn from

4 [congressional] inaction, including the inference that the existing legislation already incorporated

5 the offered change.’”) (internal quotations and citations omitted). But the Ninth Circuit has found

6 congressional inaction, or unsuccessful actions, are relevant to show Congress’s lack of

7 authorization of the Executive Branch’s purported authority “to withdraw federal grant moneys

8 from jurisdictions that do not agree with the current Administration’s immigration strategies.”

9 City & Cty. of San Francisco v. Trump, 897 F.3d 1225, 1234 (9th Cir. 2018) (finding that given

10 the “divisiveness of the policies in play,” Congress did not approve of an Executive Order

11 withholding grant funding to cities that failed to certify compliance with Section 1373.).

12

DOJ disagrees that a formula grant program like the Byrne JAG program is

13 “irreconcilable” with the access and notice conditions. It relies on the single sentence, “the

14 Attorney General may, in accordance with the formula…, make grants…,” to contend that there is

15 a difference between grant eligibility discretion and fund allocation discretion. 34 U.S.C. § 10152

16 (emphasis added). No party disputes that the Attorney General has some discretion to make grants

17 in the statute. The dispute is whether the text supports discretion to the degree that DOJ assumed

18 when it created the conditions. The text itself does not support such an exercise of power. Yet

19 DOJ simply writes-off the lack of express authorization and instances when Congress imposed its

20 own conditions on Byrne JAG funding as being coextensive with its own discretionary authority

21 to determine conditions for grant eligibility.

22

DOJ does not offer any argument not already considered on this exact issue in the parallel

23 cases. See, e.g., City of Chicago, 2018 WL 3608564, at *12 (holding that the Byrne JAG statute

24 did not grant authority to impose notice and access conditions); City of Philadelphia v. Sessions,

25 309 F. Supp. 3d at 321 (finding that all three conditions violated the separation of powers

26 principle); see also City of Los Angeles v. Sessions, 293 F. Supp. 3d 1087, 1098 (C.D. Cal. 2018)

27 (striking down similar conditions on COPS grants). It made no attempt to address those

28 unfavorable cases or explain why I should depart from that authority, and I will not. It is evident 20

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1 from the text of the statute that the federal funds designated by Congress for the Byrne JAG

2 program do not impose their own immigration enforcement conditions on recipients. To the

3 contrary, “nothing in the Byrne JAG statute grant[s] express authority to the Attorney General to

4 impose the notice and access conditions.” City of Chicago, 888 F.3d at 280.

5

2. Section 10102 Does Not Grant the Attorney General Authority to

Impose the Challenged Conditions 6

As an independent basis for imposing the conditions, DOJ relies on the authority granted in

7

34 U.S.C. § 10102, a statute in the subchapter creating the OJP titled “Duties and Functions of

8

Assistant Attorney General.” The statute states, “The Assistant Attorney General shall...(6)

9

exercise such other powers and functions as may be vested in the Assistant Attorney General

10

pursuant to this chapter or by delegation of the Attorney General, including placing special

11

conditions on all grants, and determining priority purposes for formula grants.” 34 U.S.C. §

12

10102 (emphasis added).

13

The parties once again offer opposing statutory interpretations. San Francisco argues that

14

Section 10102(a) did not give DOJ authority to impose conditions because the power of “placing

15

special conditions” on and “determining priority purposes” of grants refers to powers that have to

16

be vested by some other statutory authority and are not enumerated in Section 10102. California

17

contends that the access and notice conditions are not justified by Section 10102(a)(6) because it

18

only permits the OJP to place special conditions on all grants to “high-risk” grantees. California

19

also asserts that Section 1373 identifies a “special award condition” to COPS grants as a “high-

20

risk condition” but refers to other conditions as “award terms and conditions” only. CA RJN Ex.

21

31 at 5, 20.

22

DOJ counters that Section 10102(a)(6) must be interpreted to grant the Assistant Attorney

23

General discretion to impose the conditions given that the statute was amended to add the “special

24

conditions” and “priority purposes” language. To give the amended language no power would

25

therefore contravene the canon of statutory construction against surplusage. See, e.g., Johnson v.

26

Consumerinfo.com, Inc., 745 F.3d 1019, 1022 (9th Cir. 2014) (“‘When Congress acts to amend a

27

statute, we presume it intends its amendment to have real and substantial effect.’”) (quoting Stone

28

21

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1 v. INS, 514 U.S. 386, 397 (1995)). DOJ emphasizes the absence of any language limiting “special

2 conditions” on only “high-risk” grantees when the text grants authority to place conditions on “all

3 grants.” 34 U.S.C. § 10102(a)(6). It interprets “determine priority purposes” broadly as including

4 the authority to prioritize federal grant funds to further federal policies.

5

DOJ’s interpretation that Section 10102 establishes an independent grant of authority to

6 impose the challenged conditions contradicts the plain meaning of the statute. The Seventh

7 Circuit’s decision in City of Chicago, 888 F.3d at 284–85, and the district court’s order in City of

8 Philadelphia, 280 F. Supp. 3d at 616–17, are particularly instructive. They found, and I agree,

9 that DOJ asserts its independent authority to place “special conditions” on grants to determine

10 “priority purposes” based on the subordinate clause in the last sentence of Section 10102. The

11 clause begins with the word “including,” conveying a reference to part of a whole. In this statute,

12 “placing special conditions” and “determining priority purposes” refers to part of the powers that

13 the Assistant Attorney General could have that were described earlier in the sentence. Those

14 powers depend on the authority “vested in the Assistant Attorney General pursuant to this chapter

15 or by delegation of the Attorney General.” 34 U.S.C. § 10102. No portion of the same chapter

16 authorizes the conditions explicitly. The Attorney General lacks the power to impose additional 17 conditions on Congress’s exercise of the Spending Power independent of Congress.2 Moreover,

18 the Byrne JAG program statute does not reference Section 10102 and does not provide the

19 authority to impose the notice and access conditions as discussed above. See Sec. II.A.1.

20

In addition, the statutory structure of Section 10102(a)(6) does not support DOJ’s broad

21 interpretation of its power to impose the challenged conditions. Section 10102(a)(6) is in a

22 different subchapter than the Byrne JAG statute and there is no text expressly applying it to the

23 Byrne JAG program. See City of Chicago, 888 F.3d at 285 (“A clause in a catch-all provision at

24 the end of a list of explicit powers would be an odd place indeed to put a sweeping power to

25

26 2 Even if there were independent authority granted by Section 10102(a)(6), courts hearing the

27

parallel cases found that the language “placing special conditions on all grants” is most likely a term of art for the additional conditions placed on “high-risk grantees” only. See City of

28

Philadelphia, 280 F. Supp. 3d at 617; see also City of Chicago, 888 F.3d at 285 n.2 (noting a possible term of art but not analyzing further).

22

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1 impose any conditions on any grants—a power much more significant than all of the duties and

2 powers that precede it in the listing, and a power granted to the Assistant Attorney General that

3 was not granted to the Attorney General.”). Ultimately, if such a broad power was not granted to

4 the Attorney General under Section 10102(a)(6) or elsewhere, by the statute’s plain meaning the

5 Assistant Attorney General does not hold such power either. See also City of Philadelphia, 280 F.

6 Supp. 3d at 617 (“Congress is unlikely to ground the Attorney General’s authority to impose

7 substantive conditions in a subsection dedicated to conferring power on the AAG.”). Section

8 10102(a)(6) does not provide DOJ authority to impose the challenged conditions on Byrne JAG

9 program funding.

10

3. Section 1373 is Not an Applicable Federal Law for Compliance with the

Byrne JAG Statute 11

In addition to the lack of authority for the notice and access conditions, San Francisco and

12

California assert that DOJ lacks authority to impose the Section 1373 certification condition from

13

the text of the Byrne JAG statute. DOJ insists that language in the Byrne JAG statute supports its

14

authority to impose the certification condition. Specifically, 34 U.S.C. § 10153(a)(5)(D) states:

15

16

(a) In general. To request a grant under this part, the chief executive officer of a State or unit of local government shall submit an application to the Attorney

17

General ... Such application shall include the following:

...

18

(5) A certification, ...that--

...

19

(D) the applicant will comply with all provisions of this part and all other

20

applicable Federal laws.

21 34 U.S.C. § 10153(a)(5)(D). Although Section 1373 is a federal law, San Francisco and

22 California argue that it cannot be broadly read as an “applicable Federal law” as stated in the

23 Byrne JAG statute because it is unconstitutional on its face. This raises two questions: (i) whether

24 Section 1373 is unconstitutional; and (ii) whether it applies to the Byrne JAG program statute.

25

a. The Tenth Amendment and Anti-Commandeering Principle

26

The Tenth Amendment states, “The powers not delegated to the United States by the

27 Constitution, nor prohibited by it to the States, are reserved to the States respectively, or to the

28 people.” U.S. Const. Amend. X. This amendment confirms that “the power of the Federal

23

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1 Government is subject to limits that may, in a given instance, reserve power to the States.” New

2 York v. United States, 505 U.S. 144, 157 (1992).

3

The Supreme Court has applied the anti-commandeering principle to various claims that

4 the federal government overstepped its bounds. See id. at 188 (“The Federal government may not

5 compel the States to enact or administer a federal regulatory program.”); Printz v. United States,

6 521 U.S. 898, 935 (1997) (“The Federal government may neither issue directives requiring the

7 States to address particular problems, nor command the States’ officers, or those of their political

8 subdivisions, to administer or enforce a federal regulatory program.”); Nat’l Fed’n of Indep. Bus.

9 v. Sebelius, 567 U.S. 519, 578 (2012) (applying anti-commandeering principle to “whether

10 Congress directly commands a State to regulate or indirectly coerces a State to adopt a federal

11 regulatory system as its own.”). Most recently, in Murphy v. NCAA, 138 S. Ct. 1461 (2018), the

12 Court applied it to the Professional and Amateur Sports Protection Act (“PASPA”), which

13 prevented states from legalizing sports betting and from repealing existing laws that prohibited it.

14 PASPA’s provision prohibiting state authorization of sports gambling “unequivocally dictate[d]

15 what a state legislature may and may not do.” Murphy, 138 S. Ct. at 1478. Plaintiffs

16 unsuccessfully argued that PASPA differed from anti-commandeering case law since “it does not

17 command the States to take any affirmative act.” Id. at 1471. The Court rejected that distinction

18 as “empty” because “the basic principle—that Congress cannot issue direct orders to state

19 legislatures—applies in either event.” Id. at 1478.

20

DOJ offers three threshold challenges to applying the anti-commandeering principle to this

21 case. First, it asserts that the Tenth Amendment and the Murphy opinion are inapposite because

22 the certification condition is for a voluntary federal grant program. It argues that applicants can

23 simply decline to participate in the Byrne JAG program, making the Spending Clause the

24 appropriate legal battleground as opposed to the Tenth Amendment’s anti-commandeering

25 principle. But this argument “ignores that Section 1373 is an extant federal law with which

26 [California or San Francisco] must comply, completely irrespective of whether or not [it] accepts

27 Byrne JAG funding.” City of Chicago, 2018 WL 3608564, at *6. San Francisco and California

28 challenge the certification condition because Section 1373 is unconstitutional; they do not 24

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1 necessarily challenge the Attorney General’s power to impose other grant conditions requiring

2 compliance with “all other applicable Federal laws” that are consistent with the Byrne JAG

3 program statute language. For these reasons, the voluntariness of the grant program does not

4 remove a challenge to a potentially applicable federal law, here Section 1373, from the scope of

5 the Tenth Amendment.

6

Second, DOJ contends that, regardless of Murphy, the federal government has “broad,

7 undoubted power” over immigration, Arizona, 567 U.S. at 394, and that statutes like Section 1373

8 are presumed to be a constitutional exercise of that power. Reno v. Condon, 528 U.S. 141, 148

9 (2000). But Reno was distinguished from other commandeering cases by the Court in Murphy

10 because the statute involved “did not regulate the States’ sovereign authority to ‘regulate their own

11 citizens.’” Murphy, 138 S. Ct. at 1479 (quoting Reno, 528 U.S. at 151). On that basis, the Court

12 gathered that “[t]he anticommandeering doctrine does not apply when Congress evenhandedly

13 regulates an activity in which both States and private actors engage.” Murphy, 138 S. Ct. at 1478.

14 The court in City of Chicago directly addressed the contention that Section 1373 ought to be

15 presumed constitutional under Reno as well, and I find its analysis persuasive. City of Chicago,

16 2018 WL 3608564, at *7. Section 1373 does not regulate private actor activities, nor does it

17 regulate with equal force an activity in which state and private actors engage. This argument

18 raised by DOJ against applying the anti-commandeering principle fails.

19

Third, at the hearing DOJ offered a subtler distinction, that Section 1373 is a preemption

20 provision rather than an attempt at commandeering. It insisted that the INA is a broad regulatory

21 scheme over individuals, unlike PASPA in Murphy which involved direct regulation of the states

22 to enforce a specific sports betting policy. See Transcript of Proceeding at 8–9 (CA Dkt. No. 136;

23 SF Dkt. No. 144); see also Murphy, 138 S. Ct. at 1481 (“every form of preemption is based on a

24 federal law that regulates the conduct of private actors, not the States.”). Murphy explained how

25 the Airline Deregulation Act of 1978 had a preemption provision (rather than a commandeering

26 provision) since it “confer[red] on private entities…a federal right to engage in certain conduct

27 subject only to certain (federal constraints).” Murphy, 138 S. Ct. at 1480. The Court also

28 explained how Arizona involved “standards governing alien registration,” and in turn conferred “a 25

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1 federal right to be free from any other registration requirements.” Id. at 1481.

2

Here, Section 1373 applies regardless of any State’s attempt to regulate immigration, and

3 in fact restricts States in unrelated criminal justice contexts completely outside the scope of the

4 INA. Section 1373, as already discussed, does not regulate private actors or provide private actors

5 with any additional rights in the INA’s statutory scheme. DOJ’s preemption argument fails on this

6 distinction.

7

I turn now to analyzing Section 1373 and the anti-commandeering case law. Murphy

8 provided a non-exhaustive set of three policy reasons that make adhering to the anti-

9 commandeering principle important. First, the principle is “one of the Constitution’s structural

10 protections of liberty,” dividing federal and state authority “for the protection of individuals.” Id.

11 at 1477 (internal quotation and citation omitted). Second, it “promotes political accountability”

12 against the backdrop that voters are unable to place credit or blame when the roles of the State and

13 Congress are blurred. Id. Finally, it prevents the federal government from “shifting the costs of

14 regulation to the States.” Id. These three concerns are relevant.

15

Section 1373 contravenes the idea that liberty is best served by the Constitution’s intended

16 division of “authority between federal and state governments for the protection of individuals.”

17 Murphy, 138 S. Ct. at 1477 (quoting New York, 505 U.S. at 181). DOJ argues that Section 1373

18 requires states and local governments to allow the disclosure of an immigrant’s address, location

19 information, release date, date of birth, familial status, contact information, and any other

20 information that would help federal immigration officials perform their duties. See Sherman Decl.

21 Ex. B (Defs. Interrog. Resp. 17); Ex. E (Defs. RFA Resps. 9–16). To comply with that

22 interpretation, California and San Francisco would need to submit control of their own officials’

23 communications to the federal government and forego passing laws contrary to Section 1373.

24 They would also need to allocate their limited law enforcement resources to exchange information

25 with the federal government whenever requested instead of to the essential services (like enforcing

26 generally applicable criminal laws) they believe would most benefit their respective communities.

27

As DOJ interprets Section 1373 today, the statute requires communications by state and

28 local governments in ways that create an appearance of a uniform federal/state/local immigration 26

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1 enforcement policy indiscernible to San Francisco or California residents. Murphy, 138 S. Ct. at

2 1477 (“When Congress itself regulates, the responsibility for the benefits and burdens of the

3 regulation is apparent.”). Section 1373 effectively “supplants local control of local officers” by

4 prohibiting those jurisdictions from preventing employees from communicating with the INS.

5 City of Chicago, 2018 WL 3608564, at *8; see also United States v. California, 314 F. Supp. 3d at

6 1099 (“Section 1373 does just what Murphy proscribes: it tells States they may not prohibit (i.e.,

7 through legislation) the sharing of information regarding immigration status with the INS or other

8 government entities.”). The statute undermines existing state and local policies and strips local

9 policy makers of the power to decide for themselves whether to communicate with INS. See

10 Printz, 521 U.S. at 931 (“To say that the Federal Government cannot control the State, but can

11 control all of its officers…merits the description ‘empty formalistic reasoning of the highest

12 order.”) (internal quotations and citation omitted).

13

California expresses the legitimate concern that entanglement with federal immigration

14 enforcement erodes the trust that Latino and undocumented immigrant communities have in local

15 law enforcement, which is essential for victims and witnesses to feel they can safely report crimes.

16 See Wong Decl. ¶¶ 4, 41–44, 52–53 (discussing how entanglement affects undocumented

17 immigrants’ trust in law enforcement); Hart Decl. ¶¶ 9, 11 (reiterating the Santa Cruz Sheriff’s

18 Office view that trust is essential to community-oriented policing); Goldstein Decl. ¶ 5

19 (summarizing California’s belief, embodied in the Values Act, that trust between law enforcement

20 and the immigrant community is central to public safety); Rosen Decl. ¶ 8 (expressing firsthand

21 experience of immigration enforcement actions chilling voluntary reporting in domestic violence

22 cases); see also Chicago, 888 F.3d at 280 (“State and local law enforcement authorities are thus

23 placed in the unwinnable position of either losing needed funding for law enforcement, or

24 forgoing the relationships with the immigrant communities that they deem necessary for efficient

25 law enforcement”).

26

The harm that entanglement with immigration enforcement does to community trust is

27 more than theoretical, as plaintiffs and amici have shown. To summarize just one study, the fear

28 of police inquiring into immigration status results in a lower likelihood that Latinos will report 27

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1 being a victim or witnessing crimes by 44 percent, undocumented immigrants by 70 percent, and

2 even U.S.-born Latinos by 28 percent. See CA RJN Ex. 4; see also Wong Decl. ¶¶ 35-38 (sharing

3 similar results in a separate study); Amicus Brief (CA Dkt. No. 130; SF Dkt. No. 136-1)

4 (providing many other studies documenting the erosion of trust in local law enforcement who

5 implicate themselves in immigration enforcement).

6

Finally, Section 1373 shifts a portion of immigration enforcement costs onto the States.

7 Murphy, 138 S. Ct. at 1477 (finding that Congress “is pressured to weigh the expected benefits of

8 the program against its costs” but fails to do so if it can “compel the States to enact and enforce its

9 program.”). It compels state and local governments not to prohibit their employees from

10 communicating with federal immigration officials. California’s law enforcement agencies

11 experienced double the detainer requests from ICE in one year—from 15,000 in fiscal year 2016

12 to 30,000 in fiscal year 2017. See TRAC Reports, Inc., Latest Data: Immigration and Customs

13 Enforcement Detainers, California (2018). According to DOJ’s broad interpretation of Section

14 1373, San Francisco and California must respond to each request, including release dates, no

15 matter the burden on the law enforcement agencies or the length of the person’s detainment term.

16 See Hart Decl. ¶¶ 19–20 (reporting that Santa Cruz County jails are run over capacity, with staff

17 shortages making compliance impossible, and that 60 percent of all arrests are misdemeanors

18 where individuals are booked and released within hours).

19

DOJ does not directly respond to the arguments made by San Francisco and California that

20 track the three policy considerations supporting the anti-commandeering principle, and instead

21 portrays Section 1373 merely as protecting the transfer of information to federal officials. It

22 distinguishes a prohibition on states from regulating their own state citizens and a law that

23 regulates states as “the owners of data bases.” Reno, 528 U.S. at 151. It contends that Murphy

24 supports the defense because PASPA was an effort to “regulate the States’ sovereign authority to

25 regulate their own citizens,” while in contrast Section 1373 is just an information-sharing

26 component of a larger statutory scheme to enforce immigration.

27

In Printz, the Supreme Court found that a federal statute requiring state and local law

28 enforcement to conduct background checks on handgun license applications was unconstitutional. 28

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1 521 U.S. at 935 (holding that the federal government cannot “command the States’ officers, or

2 those of their political subdivisions, to administer or enforce a federal regulatory program.”). DOJ

3 relies on dicta, remarking that statutes “which require only the provision of information to the

4 Federal Government, do not involve the precise issue [of]...forced participation of the States’

5 executive in the actual administration of a federal program.” Printz, 521 U.S. at 918; see also id.

6 at 936 (“the Court appropriately refrains from deciding whether other purely ministerial reporting

7 requirements imposed by Congress on state and local authorities pursuant to its Commerce Clause

8 powers are similarly invalid.”) (O’Connor, J., concurring). The Court has yet to decide the merits

9 of that distinct issue. Id. (finding that those statutes requiring only information-sharing “do not

10 involve the precise issue before us here.”); see also United States v. California, 314 F. Supp. 3d at

11 1101 (finding “[t]he more critical question, however, is whether required information sharing

12 constitutes commandeering at all. Printz left this question open.”). Printz’s holding, as the Court

13 later explained in Murphy, applied “not only to state officers with policymaking responsibility but

14 also to those assigned more mundane tasks.” 138 S. Ct. at 1477. Printz does not support carving

15 out statutes that focus on information-sharing from the anti-commandeering principle if the

16 statutes are still characteristic of commands to States, their officers, or their political subdivisions.

17

There is no distinction for anti-commandeering purposes, post-Murphy, between a federal

18 law that affirmatively commands States to enact new laws and one that prohibits States from doing

19 the same. Even if the Court would recognize an exception for statutes requiring “purely

20 ministerial reporting,” Printz, 521 U.S. at 936, Section 1373’s impact is not merely as a ministerial

21 information-sharing statute. It prohibits state and local jurisdictions, their agencies, and officials,

22 from preventing information-sharing with the federal government whether through ministerial

23 reporting, local agency policymaking, or legislative rulemaking. See 8 U.S.C. § 1373 (“a Federal,

24 State, or local government entity or official may not prohibit, or in any way restrict, any

25 government entity or official from sending to, or receiving from, the [INS] information regarding

26 the citizenship or immigration status, lawful or unlawful, of any individual.”). The statute takes

27 control over the State’s ability to command its own law enforcement. This is particularly

28 concerning given the State’s and San Francisco’s view of the decidedly negative impact that 29

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1 entanglement with federal immigration enforcement has on community trust and reducing crime.

2 Section 1373 lacks the “critical alternative” discussed in New York, 505 U.S. at 176, allowing a

3 state to decline to administer a federal program. Id. at 176–177.

4

As the court wrote in City of Chicago, Section 1373 “effectively thwart[s] policymakers’

5 ability to extricate their state or municipality from involvement in a federal program.” 264 F.

6 Supp. 3d at 949. It goes beyond information-sharing to “require[] local policymakers to stand

7 aside and allow the federal government to conscript the time and cooperation of local employees.”

8 City of Chicago, 2018 WL 3608564, at *11. Further, with Section 1373 imposed on states and

9 local governments, “federal priorities dictate state action” and this inevitably reaches the state’s

10 relationship with its own citizens and undocumented immigrant communities in ways that no

11 doubt will affect their perceptions of the state and trust in its law enforcement agencies. United

12 States v. California, 314 F. Supp. 3d at 1109, Dkt. No. 193 at 50. For the reasons discussed 13 above, I find that Section 1373 is unconstitutional.3

14

b. Applicable Federal Laws in the Byrne JAG Statute

15

DOJ asserts that it has the power to condition Byrne JAG grants on any federal law as long

16 as it gives notice that it applies, as it did for Section 1373. Given that Section 1373 is

17 unconstitutional, “[a]s an unconstitutional law, Section 1373 automatically drops out of the

18 possible pool of ‘applicable Federal laws’ described in the Byrne JAG statute” whether I interpret

19 the statute as DOJ requests or not. City of Chicago, 2018 WL 3608564, at *13 (citing Branch v.

20 Smith, 538 U.S. 254, 281–82 (2003) (finding that the phrase “as state law requires” does not

21 include unconstitutional state laws)); see also City of Philadelphia, 2018 WL 2725503, at *32–33

22 (“Because the JAG Byrne Program requires compliance with an unconstitutional statute (in this

23 case, Section 1373) in order to receive grant funds, the Certification Condition is itself

24 unconstitutional.”). DOJ has no authority to demand state and local governments certify

25

26

3 DOJ also asks the court to consider whether Section 1373’s language can operate as an independent grant condition regardless of the validity of Section 1373. Because I do not find that

27

the Byrne JAG statute or Section 10102(a)(6) provided independent authority for the Attorney General to impose the conditions, it follows that there would not be authority to impose a separate

28 grant condition identical to Section 1373’s terms, without an act of Congress.

30

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1 compliance with an unconstitutional law.4

2

For completeness, though, I will address DOJ’s argument on whether Section 1373 is an

3 applicable law if it is constitutional. San Francisco makes three persuasive counterarguments

4 based in the text, context, and legislative history of the Byrne JAG statute to interpret the

5 “applicable Federal laws” provision as limited to federal laws about the grant-making process.

6 See SF Mot. for Summ. J. at 14–15; see also Amicus Brief (SF Dkt. No. 135-1) (advancing similar

7 arguments).

8

First, it is superfluous to interpret “all other applicable Federal laws” as “all Federal laws,”

9 especially considering that Congress explicitly imposed compliance with other conditions by

10 implementing the Sex Offender Registration and Notification Act and the Prison Rape Elimination

11 Act. Second, because all the other conditions in Section 10153(a) apply to the grant itself, the

12 statutory context does not support imposing a condition beyond the grant administration process.

13 Finally, DOJ’s own practice narrowly interprets “applicable laws” to the grant process, and the

14 certification form only asks grant applicants to certify compliance with federal laws “applicable to

15 the award.” SF RJN Ex. C § 3(a).

16

Starting with the text, the Ninth Circuit has found that, in isolation, “the term ‘applicable’

17 has a spectrum of meanings.” Ileto v. Glock, Inc., 565 F.3d 1126, 1134 (9th Cir. 2009). Here, the

18 words “all other” that precede the “applicable” term do not give me much of any guidance on the

19 scope of the provision’s application. DOJ’s cases are also not determinative of the plain meaning

20 of the text in this statute. I agree with the courts in City of Philadelphia, 280 F. Supp. 3d at 619,

21 and City of Chicago, 264 F. Supp. 3d at 944, that “[b]oth positions are plausible” and this question

22 is a “close call.” Because “applicable” could hold either meaning proposed by the parties based

23 on the text alone, to determine the congressional intent of this language I turn to “the specific

24

25

4 In City of Chicago, the court also emphasized the constitutional distinction between Section 1373 and the condition that recipients must certify compliance with Section 1373. The anti-

26

commandeering principle may invalidate an unconstitutional law, but it would not invalidate agency authority to impose federal grant conditions if it is appropriately permitted by Congress.

27

See S. Dakota v. Dole, 483 U.S. 203, 210 (1987) (finding that the Tenth Amendment limits congressional regulation of state affairs, not the conditions attachable to federal grants). I agree

28 with this distinction in reaching the conclusion here.

31

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1 context in which [the term ‘applicable’] is used[] and the broader context of the statute as a

2 whole.” Ileto, 565 F.3d at 1134 (quoting Robinson v. Shell Oil Co., 519 U.S. 337, 341 (1997)).

3

The statutory structure suggests “applicable” was intended to refer to laws related to grant

4 applications. The entire sentence appears in the last of four “residual clauses” within a proviso, all

5 of which concern the grant application. In Republic of Iraq v. Beaty, 556 U.S. 848, 857–58

6 (2009), the Court recognized that “presumptively, the ‘grammatical and logical scope [of a

7 proviso] is confined to the subject-matter of the principal clause.’” Id. (quoting United States v.

8 Morrow, 266 U.S. 531, 534–535 (1925)); see also Alabama Dep’t of Revenue v. CSX Transp.,

9 Inc., 135 S. Ct. 1136, 1144–45, (2015) (finding that “the meaning of [a residual clause] is best

10 understood by reference to the provisions that precede it.”). In some instances, a proviso can state

11 an independent rule—it “may be lazy drafting, but is hardly a novelty.” Id. at 859. Here, the

12 phrase “all other applicable Federal laws” refers to the preceding clause requiring grant

13 applications to include a certification “in a form acceptable to the Attorney General.” 34 U.S.C. §

14 10153(a)(5) (emphasis added). There is no indication that an acceptable form of the certification

15 would encompass additional substantive compliance with laws not directly required by Congress.

16 Accordingly, I would find that Section 1373 is not an applicable law regardless of its

17 constitutionality.

18

B. The Spending Clause

19

California and San Francisco also argue that even if the Attorney General had the power to

20 impose the conditions on grant funding delegated to him by Congress, it exceeds the constitutional

21 limits of the Spending Power to require the new conditions. As discussed above, the Spending

22 Power includes “condition[ing] the receipt of funds, by states and others, on compliance with

23 federal directives.” Skinner, 884 F.2d at 447. But this power is not absolute. Exercising the

24 Spending Power to impose grant conditions must: (i) be in pursuit of the general welfare; (ii) be

25 unambiguous; (iii) be reasonably related to Congress’s articulated goal; and (iv) not induce the

26 State to commit an unconstitutional action. Id. San Francisco and California challenge the

27 ambiguity and relatedness of the three conditions.

28 32

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1. Unambiguous Requirement 1
When Congress requires conditions on federal funds, “it must do so unambiguously” so 2
that state and local governments can decide whether to accept the funds and “exercise their choice 3
knowingly, cognizant of the consequences of their participation.” S. Dakota v. Dole, 483 U.S. 4
203, 207 (1987) (quoting Pennhurst State Sch. & Hosp., 451 U.S. at 17). Congress cannot 5
implement new conditions after-the-fact because states must decide to opt-in to a federal program 6
willingly and aware of the conditions. See Nat’l Fed. of Indep. Bus. v. Sebelius, 132 S. Ct. 2566, 7
2602-04 (2012). Courts tasked with determining if an exercise of the Spending Power is 8
unambiguous must find that the underlying statute provides “clear notice” of its application. 9
Arlington Cent. Sch. Dist. Bd. of Educ., 548 U.S. at 296. San Francisco challenges all three 10
conditions as ambiguous, while California focuses its briefing on the access and notice conditions. 11
a. Access and Notice Conditions 12
California asserts that the access and notice conditions do not provide clear notice of what 13
is required to comply. There is no statute providing guidance about the condition requirements, 14
and the award letters presumably outlining the terms of compliance do not explain the requirement 15
that a state or local statute, rule, regulation, policy, or practice, must be in place and “designed to 16
ensure” federal agents have access to and get notice concerning individuals in correctional 17
facilities and their release date information. See DOJ RJN, Ex. B ¶¶ 55, 56. California also takes 18
issue with DOJ’s lack of explanation about whether the TRUTH Act disqualifies it from satisfying 19
the access condition, and what state entities in the California Board of State and Community 20
Corrections, which receives the Byrne JAG funds, are included in the award letter language 21
“program and activity.” See Sherman Decl. Ex. E at RFA Resp. 21 & 39. 22
San Francisco’s contentions focus on the inconsistency of the DOJ’s statements and 23
positions explaining the access and notice conditions. San Francisco asserts that the notice 24
condition, requiring notice “as early as practicable,” is unclear and that the award letter language 25
does not acknowledge times when notice is impossible because inmates are released with little or 26
no notice. See Lee Decl. ¶ 7, Ex. E at ¶¶ 55, 56; DOJ RJN, Ex. B ¶¶ 55, 56. Further, San 27
Francisco believes it is unclear from the DOJ’s briefing in City of Philadelphia v. Sessions and 28
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1 California v. Sessions if San Francisco must provide access to inmates who consent or if it can

2 decline access if the inmate is unwilling to meet with ICE. Compare City of Philadelphia v.

3 Sessions, No. 2:17–cv–03894–MMB, Dkt. No. 28, at 32 (E.D. Pa. Oct. 12, 2017) (citing DOJ’s

4 argument that access conditions require access “even if the inmate refuses to answer questions”),

5 with California v. Sessions, Dkt. No. 83, at 6 (N.D. Cal. Nov. 22, 2017) (arguing that the access

6 condition does not “forbid a jurisdiction from informing detainees…that they may choose not to

7 meet with immigration authorities.”).

8

DOJ’s response to San Francisco and California is nearly the same; it quotes the language

9 of its award letters and contends that the notice and access conditions are unambiguous in their

10 text. It also notes that to the extent grant applicants had questions, they should have contacted

11 their respective “Grant Manager” as encouraged in the 2017 Byrne JAG solicitation. See Lee

12 Decl. Ex. A & B. It pushes back against the need to specify the outer limits of its conditions,

13 arguing that the conditions are not ambiguous even if they are indeterminate “provided that the

14 existence of the conditions is clear, such that States have notice that compliance with the

15 conditions is required.” Charles v. Verhagen, 348 F.3d 601, 607 (7th Cir. 2003) (citation

16 omitted); see, e.g., Benning v. Georgia, 391 F.3d 1299, 1306 (11th Cir. 2004) (“Once Congress

17 clearly signals its intent to attach federal conditions to Spending Clause legislation, it need not

18 specifically identify and proscribe in advance every conceivable state action that would be

19 improper.”) (citation omitted). It also responds to San Francisco’s focus on inconsistent

20 statements concerning the access condition merely as “different sides of the same coin” requiring

21 San Francisco not to insert itself between federal immigration officials and detainees. DOJ Mot.

22 Summ. J & Opp. at 21 n.13 (SF Dkt. No. 113).

23

In the case of a condition on federal funding, courts “must view the [governing statute]

24 from the perspective of a state official who is engaged in the process of deciding whether the State

25 should accept [the] funds and the obligations that go with those funds.” Arlington Cent. Sch. Dist.

26 Bd. of Educ., 548 U.S. at 296. Beginning with the text of the statute, if the “language is plain, the

27 sole function of the courts—at least where the disposition required by the text is not absurd—is to

28 enforce it according to its terms.” Hartford Underwriters Ins. Co. v. Union Planters Bank, N. A., 34

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1 530 U.S. 1, 6 (2000) (internal quotations omitted).

2

Here, as in City of Philadelphia, “[w]hether Congress unambiguously imposed the

3 Challenged Conditions (or unambiguously authorized the Attorney General so to do) entails

4 largely the same inquiry as whether it conferred authority upon the Attorney General to impose

5 them.” 280 F. Supp. 3d at 646. I found no authority within the Byrne JAG statute to support the

6 Attorney General’s purported power to impose the new conditions, and I found no independent

7 authority to impose the conditions based on the Assistant Attorney General’s powers delineated in

8 Section 10102. See supra Sec. II.A.1-2. On that basis, the notice and access conditions “cannot

9 have been unambiguously authorized by Congress if they were never statutorily authorized.” Id.

10

b. Certification Condition

11

The certification condition is unclear from San Francisco’s perspective because DOJ has

12 maintained different and increasingly broad interpretations of how state and local governments

13 must comply with Section 1373. In 2007, DOJ’s Office of Inspector General (“OIG”) evaluated

14 San Francisco’s compliance with Section 1373 and concluded that even though ICE officials

15 objected to its policies, there was no concern about the flow of information between the two

16 agencies. See Lee Decl. ¶ 9, Ex. G at AR00010–12. However, in 2016, DOJ’s OIG noted the

17 opposite conclusion based on its interpretation of San Francisco’s Sanctuary City laws’ internal

18 savings clause. See Lee Decl. ¶ 10, Ex. H at 5–6 n.7. San Francisco also alludes to various

19 representations that DOJ has made throughout this litigation and in parallel cases, which offer

20 inconsistent guidance on the scope of the certification condition. See SF Mot. Summ. J. at 19–20.

21

DOJ considers the certification condition unambiguous from the text of the award

22 documents. The award documents in defendants’ exhibits show that complying with Section 1373

23 entails not restricting information on citizenship or immigration status. See DOJ RJN, Ex. B ¶¶

24 53–55. In October 2016, DOJ contends that OJP also issued “guidance” on compliance with the

25 Section 1373 certification condition. But at no point in this guidance does the OJP clearly answer

26 the questions raised by San Francisco about what its interpretation of compliance really means.

27 See DOJ RJN, Ex. F (repeating generally that its “goal is to ensure that our JAG and SCAAP

28 recipients are in compliance...”). 35

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1

In City of Philadelphia, the court found that whether the certification condition was

2 unambiguous was a “close call,” just as it found it was a close call whether Section 1373 was

3 authorized by the “all other applicable Federal laws” language in Section 10153(a)(5)(D) of the

4 Byrne JAG statute. 280 F. Supp. 3d at 619, 646. It concluded that Philadelphia was likely to

5 succeed on the merits of its ambiguity argument given that there were several interpretations of the

6 “applicable Federal laws” text that did not provide clear notice of the Section 1373 certification

7 condition. Id. at 646–647 (“on one hand it could signify all federal laws related to grantmaking

8 (as the City would have it), or on the other, all federal laws related to law enforcement, or even the

9 entire corpus of federal law codified in the United States Code.”).

10

As discussed above, I find that the plain text was not definitive in interpreting the meaning

11 of “all other applicable Federal laws,” and the structure of the statute supported a limited

12 interpretation encompassing federal laws related to the grant. See supra Sec. II.A.3.b. Congress

13 required applications for Byrne JAG program grants to be certified in compliance with “all other

14 applicable Federal laws.” 34 U.S.C. § 10153(a)(5)(D). However, the certification of “applicable”

15 laws is understood in relation to the preceding language “in such form as the Attorney General

16 may require,” which I do not interpret as conferring more than ministerial powers to the Attorney

17 General. Id.

18

DOJ’s evolving interpretations of the certification condition further demonstrate

19 ambiguities that prevent applicants from deciding whether to accept the funds “cognizant of the

20 consequences of their participation.” Dole, 483 U.S. at 207 (quoting Pennhurst State Sch. &

21 Hosp., 451 U.S. at 17). In September 2017, in its opposition to San Francisco’s motion for

22 summary judgment in City and Cty. of San Francisco v. Trump, DOJ argued that San Francisco’s

23 sanctuary city ordinances violated Section 1373 because they discouraged or restricted employees

24 from sharing information regarding immigration status. See Oppo. at 14–15, Case No. 3:17–485–

25 WHO (N.D. Cal. Sept. 27, 2017) (Dkt. No. 172). Then at the October 23, 2017 hearing, DOJ

26 suggested that Section 1373 applies to a person’s release status, identity or age, date of birth,

27 residence, and address. Lee Decl. ¶ 13, Ex. K at 17:2–22:23. In a November 15, 2017 letter to

28 San Francisco, DOJ expressed that it was concerned that San Francisco’s sanctuary city policies 36

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1 violate Section 1373 since they prohibit notifying ICE of release state or personal information.

2 See Lee Decl. ¶ 14, Ex. L. Now in this case, DOJ takes the expansive position that Section 1373

3 encompasses a detainee’s release date, residential address, location information, date of birth,

4 familial status, and contact information. See Lee Decl. ¶ 6, Ex. D (RFA Nos. 9–14).

5

2. Relatedness Requirement

6

In addition to being unambiguous, conditions on congressional spending must share some

7 nexus such that they are “reasonably related to the purpose of the federal program.” See Dole, 483

8 U.S. at 213 (O’Connor, J., dissenting). This means that Byrne JAG program funds conditioned on

9 certified compliance with Section 1373 and the notice and access conditions “must have some

10 nexus to immigration enforcement.” Cty. of Santa Clara v. Trump, 250 F. Supp. 3d 497, 532

11 (N.D. Cal.), reconsideration denied, 267 F. Supp. 3d 1201 (N.D. Cal. 2017), appeal dismissed as

12 moot sub nom. City & Cty. of San Francisco v. Trump, Case No. 17–16886, 2018 WL 1401847

13 (9th Cir. Jan. 4, 2018).

14

California contends that the challenged conditions, which pertain to federal immigration

15 enforcement, lack any reasonable relationship to the criminal justice purpose of Byrne JAG

16 program and in fact undermine its purpose of recognizing local control over local public safety.

17 See AR-992 (announcing the DOJ’s new conditions so that “federal immigration authorities have

18 the information they need to enforce immigration laws.”). It also emphasizes DOJ’s increasing

19 focus on removing classes of immigrants who have incurred civil penalties but have not been

20 convicted of any crime, which is beyond the criminal justice goals of the Byrne JAG program.

21 Similarly, San Francisco asserts that Congress’s purpose for the Byrne JAG program was to give

22 state and local governments support for their own initiatives related to one of eight criminal justice

23 purposes—none of which is immigration enforcement. 34 U.S.C. § 10152(a)(1)(A)–(H).

24

DOJ argues that the grant conditions satisfy the relatedness inquiry because the term

25 “criminal justice” is broadly defined in the same chapter of the Byrne JAG statute as “activities

26 pertaining to crime prevention, control, or reduction, or the enforcement of the criminal law,

27 including, but not limited to, police efforts to prevent, control, or reduce crime or to apprehend

28 criminals, . . . activities of courts having criminal jurisdiction, and related agencies.” 34 U.S.C. § 37

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1 10251(a)(1). Drawing from Section 10102(a), DOJ also contends that the conditions relate to the

2 Assistant Attorney General’s responsibility to “maintain liaison with” state governments in

3 criminal justice matters. 34 U.S.C. § 10102(a)(1), (2). It contends that its efforts to remove

4 immigrants convicted of serious crimes are sufficiently related to apprehending criminals and

5 reducing crime because once removed, a criminal is no longer present to re-offend.

6

As I have already discussed at length, on its face the Byrne JAG program is a formula

7 grant program for specified funds to be used by states and local law enforcement in programs

8 related to one of eight broad program areas related to criminal justice. 34 U.S.C. §

9 10152(a)(1)(A)–(H); see also City of Philadelphia, 280 F. Supp. 3d at 643 (“the best reading of

10 the Byrne statute is that Congress intended to create a formula grant program that simply provided

11 fiscal assistance to states and localities for any of a wide variety of permissible purposes that the

12 applicant jurisdictions, having heard from various stakeholders, were entitled to select.”). The

13 legislative history bolsters this interpretation of its purpose. See, e.g., H.R. Rep. 109–233, at 89,

14 reprinted in 2005 U.S.C.C.A.N. 1636, 1640 (“The Committee believes that these reforms will

15 work to give State and local governments more flexibility to spend money for programs that work

16 for them rather than to impose a ‘one size fits all’ solution.”); 151 Cong. Rec. 25, 919 (2005)

17 (“Byrne grants fund local law enforcement to combat the most urgent public safety problems in

18 their own communities.”).

19

Congress repealed the only requirement related to immigration that existed before, and it

20 has failed to amend the Byrne JAG statute to add similar conditions since. See Immigration Act of

21 1990, Pub. L. 101-649, § 507(a); Misc. and Tech. Immigration and Naturalization Amend. of

22 1991, Pub. L. 102-232, § 306(a)(6) (repealed 2006) (requiring states to provide records of the

23 “criminal convictions of aliens”); CA RJN Exs. 32–36 (various House and Senate bills that failed

24 to amend the Byrne JAG statute with an immigration enforcement component); see also Amicus

25 Brief at 4 n.6 (CA Dkt. No.132; SF Dkt. No. 138-1) (summarizing failed efforts since the 1990s to

26 impose immigration conditions on Byrne JAG grant funding). In fact, “Congress has repeatedly,

27 and frequently, declined to broadly condition federal funds or grants on compliance with Section

28 1373 or other federal immigration laws,” as DOJ is now attempting to do with the challenged 38

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1 conditions. Cty. of Santa Clara, 250 F. Supp. 3d at 531 (citing Ending Sanctuary Cities Act of

2 2016, H.R. 6252, 114th Cong. (2016); Stop Dangerous Sanctuary Cities Act, S. 3100, 114th Cong.

3 (2016); Stop Dangerous Sanctuary Cities Act, H.R. 5654, 114th Cong. (2016); Stop Sanctuary

4 Policies and Protect Americans Act, S. 2146, 114th Cong. (2016)).

5

The Byrne JAG programs that are at risk of losing funding because of the access and notice

6 conditions do not relate to immigration enforcement. The conditions address interviewing and

7 accessing detained individuals for removal purposes, and as applied they “target[] for defunding

8 grants with no nexus to immigration enforcement at all.” Cty. of Santa Clara, 250 F. Supp. 3d at

9 533. As recognized in City of Philadelphia, criminal law is integral to federal immigration law,

10 but it is not a two-way street; immigration law does not impact local law enforcement’s

11 administration and enforcement efforts in the criminal justice system. 280 F. Supp. 3d at 642, 642

12 (“Immigration law has nothing to do with the enforcement of local criminal laws.”). The INA

13 authorizes local law enforcement to cooperate with the federal government to enforce immigration

14 laws, but it does not require it. See, e.g., 8 U.S.C. §§ 1252c, 1324(c), 1357(g) (authorizing state

15 and local officers to arrest for INA violations, and to enter formal cooperative agreements to

16 perform other specific functions of federal immigration officers). Relatedly, both California and

17 San Francisco have shown that their own policies and laws respect the separation between

18 immigration enforcement and the essential duties local law enforcement carry out with their

19 limited resources.

20

California’s Byrne JAG program funding is intended to support law enforcement programs

21 like task forces focused on criminal drug enforcement, violent crime, and gang activities; none of

22 these involve immigration enforcement. See Caligiuri Decl. ¶ 29. California’s COPS grant

23 funding also funds the salaries and costs of four full-time employees who work on anti-

24 methamphetamine efforts. Id. ¶ 21. Likewise, San Francisco’s funding goes towards at-risk youth

25 programs to reduce recidivism, law enforcement programs aiming to reduce drug trade and

26 servicing people with drug use and mental health problems. See Chyi Decl. ¶¶ 10, 17, 18. The

27 access and notice conditions, which DOJ admits are intended to promote immigration

28 enforcement, lack any relationship to (and in fact interfere with) the criminal justice priorities set 39

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1 by the plaintiffs applying for criminal justice program funding through the Byrne JAG statute.

2 Contrary to DOJ’s view, maintaining liaison with state and local governments on criminal justice

3 matters does not justify requiring access to their detainees and notice of release dates for every

4 individual the federal government requests.

5

Even if the Attorney General had the Spending Power to impose immigration enforcement

6 on traditional criminal justice responsibilities of local law enforcement, the conditions are more

7 substantial than the relationship between the dual sovereigns can reasonably bear. The Attorney

8 General has made it clear that DOJ “no longer will exempt classes or categories of removable

9 aliens from potential enforcement,” yet many immigration violations do not involve criminal law

10 and are only violations of civil penalties. Cf. CA RJN Ex. 37 at 2, with 8 U.S.C. §§ 1182(a)(6)(A)

11 & (9)(B), 1202(g), 1227(a)(1)(B). California and San Francisco have shown that their uses of the

12 Byrne JAG grants are much broader than preventing reoffenders, such that “adherence to the

13 Department of Justice conditions would conflict with its justifiable policies towards non-criminal

14 aliens.” City of Philadelphia, 280 F. Supp. 3d at 644. In this respect, “the federal interest in

15 enforcing immigration laws falls outside the scope of the Byrne JAG program.” Id. at 642.

16

The certification condition is unrelated as well. In my prior Order on California’s motion

17 for a preliminary injunction, I found that the Section 1373 certification condition may have a

18 sufficient nexus to the purposes of the Byrne JAG program “depending on the breadth of the

19 federal government’s interpretation of Section 1373.” Order at 23 (CA Dkt. No. 89). Even

20 though the federal government’s interest in immigration enforcement extends beyond the Byrne

21 JAG statute’s goal of supporting criminal justice programming, “the Certification Condition

22 appears to have some relationship with the JAG Program.” City of Philadelphia, 280 F. Supp. 3d

23 at 642, 644. But as the court in City of Philadelphia found, Section 1373 by its plain terms was

24 not limited to “aliens, criminal aliens, or even convicted criminals.” Id. at 644. Philadelphia

25 established that it uses Byrne JAG funds for justifiable policies related to non-criminal aliens

26 outside just prosecuting criminals. Id. Based on these facts, it noted the certification condition

27 “arguably exceeds the relatedness requirement.” Id. (citing Dole, 483 U.S. at 215 (O’Connor, J.,

28 dissenting). I agree. 40

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1

The Supreme Court has required only that grant conditions “bear some relationship to the

2 purpose of the federal spending.” New York, 505 U.S. at 167. I have already discussed why I

3 would have found Section 1373 is not an “applicable law” under the Byrne JAG statute regardless

4 of its constitutionality. Requiring a certification of compliance with an inapplicable law would

5 seem to exemplify un-relatedness. Assuming that Section 1373 was an “applicable law,”

6 according to its text it still prevents restricting “information regarding the citizenship or

7 immigration status, lawful or unlawful, of any individual.” 8 U.S.C. § 1373(a) (emphasis added).

8 In turn, the Section 1373 certification condition exceeds the bounds of the Byrne JAG statute and

9 demonstrates “an attenuated or tangential relationship” that the DOJ is not entitled to impose.

10 Dole, 483 U.S. 203, 215 (1987). By its express terms it applies to “any individual,” including

11 non-criminal immigrants and United States citizens alike. See City of Philadelphia, 280 F. Supp.

12 3d at 644 (quoting 8 U.S.C. § 1373(a)). This condition, like the access and notice conditions, does

13 not apply to the criminal justice purposes of the programs the Byrne JAG statute supports.

14

Accordingly, even if Congress delegated the Spending Power to the Attorney General, the

15 challenged conditions are ambiguous and insufficiently related to the grant or the local criminal

16 justice program purposes of the federal spending.

17

CALIFORNIA’S ARBITRARY AND CAPRICIOUS CLAIM

18

California argues that all three conditions for Byrne JAG program funding are “arbitrary

19 and capricious” under the Administrative Procedure Act (“APA”). DOJ counters that there is no

20 final agency action because it has not yet granted or denied California’s fiscal year 2017 Byrne

21 JAG application or imposed the conditions on the grant.5 Assuming for the sake of argument that

22 there was final agency action, DOJ contends that the conditions are not arbitrary and capricious. I

23 address each argument below.

24

A. Requiring the Challenged Conditions is a Final Agency Action

25

An agency action is final if it “marks the consummation of the agency’s decisionmaking

26

27 5 Defendants note that their argument is unchanged from earlier in the case, when I found

28

California demonstrated that the imposition of the certifying condition is a final agency action. See DOJ Mot. Summ. J & Opp. at 10 n.4 (CA Dkt. No. 124).

41

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1 process” and determines “rights or obligations…from which legal consequences flow.” Bennett v.

2 Spear, 520 U.S. 154, 177–178 (1997) (internal quotations omitted). DOJ acknowledges that it has

3 determined certain California laws violate Section 1373, as evidenced by its affirmative litigation

4 in United States v. California, Case No. 2:18–cv–490, Dkt. No. 1 (E.D. Cal. Mar. 6, 2018). See

5 DOJ Mot. Summ. J & Opp. at 11 n.5 (CA Dkt. No. 124). It tries to distinguish this legal

6 conclusion from a final factual determination on the Byrne JAG program application. But as I

7 found in the prior Order, finding that the Byrne JAG program and COPS grants require

8 compliance with Section 1373 is a final action, and there are clear legal consequences for

9 California stemming from imposing the condition. See Order at 19–20 (CA Dkt. No. 89) (finding

10 “the federal government has articulated that certain funds…will require adherence to the

11 certification condition” and “[r]eceipt of the grants is conditioned on certifying compliance with

12 the federal government’s interpretation of Section 1373.”). For the reasons expressed in the prior

13 Order, I find that all the challenged conditions have been determined by the Attorney General as

14 requirements for grant funding and constitute final agency action.

15

Courts presiding over the parallel cases agree. On a motion to dismiss in City of

16 Philadelphia, the court found that the decision to impose the conditions was final since plaintiffs

17 pleaded facts showing the conditions were required for funding, and that compliance with them

18 would significantly alter their local policies. 309 F. Supp. 3d at 280. In City of Chicago, the court

19 found DOJ’s decision to impose the grant funding conditions was a final agency action, not the

20 factual determination whether to award the funds (as DOJ argues again here). 2018 WL 3608564,

21 at *4. Compliance with the conditions is required for grant funding based on the Byrne JAG 2017

22 Solicitation. Id. The conditions forced Chicago to decide between accepting the award at the loss

23 of dictating its own local policy preferences or foregoing the monetary award. Id.

24

These are the same circumstances here. California has shown that the decision to impose

25 new conditions on the Byrne JAG and COPS grants was final and will lead to significant legal

26 consequences depending on its decision to participate as well as to certify its compliance.

27

B. Imposing the Challenged Conditions was Arbitrary and Capricious

28

The APA requires courts to “hold unlawful and set aside agency action, findings, and

42

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1 conclusions found to be arbitrary, capricious, an abuse of discretion, or otherwise not in

2 accordance with law.” 5 U.S.C. § 706(2)(A). Actions where there is a “rational connection

3 between the facts found and the choice made” to achieve these goals are valid. Motor Vehicle

4 Mfrs Ass’n v. State Farm Mut. Auto Ins. Co, 463 U.S. 29, 43 (1983). Agency action should be

5 overturned when, among other things, the agency: (i) relied on factors Congress did not intend for

6 it to consider; (ii) failed to consider important aspects of the problem it is addressing; or (iii)

7 explained its decision counter to the evidence before it. State Farm, 463 U.S. at 43; see also Pac.

8 Coast Fed’n of Fishermen’s Ass’n v. Nat’l Marine Fisheries Serv., 265 F.3d 1028, 1034 (9th Cir.

9 2001). California contends that the administrative record establishes all those problems and

10 requires overturning the agency action.

11

Because California challenges grant conditions, the usual administrative procedures that

12 show an agency’s justification for its action, such as formal rules, notice and comment, or

13 hearings, are not present here. See 5 U.S.C. § 553(a)(2). I did not have the complete

14 administrative record at the time of the preliminary injunction, and in the prior Order I was not

15 prepared to find the certification condition was arbitrary and capricious because “the change in

16 policy might ‘be ascribed to a difference in view.’” Order at 22 (CA Dkt. No. 89).

17

Now I am presented with the complete administrative record of 48 documents totaling

18 1037 pages. See Administrative Record (CA Dkt. No. 96) (SF Dkt. No. 84). DOJ bases its

19 agency action to impose the new conditions on five documents in the record: (i) a 2007 OIG Audit

20 Report, see id. AR-00001-00109; (ii) a 2016 OIG Memorandum, see id. AR-00366-00381; (iii) a

21 Letter from Assistant Attorney General Kadzik to Rep. Culberson, see id. AR-00382-00391; (iv)

22 DOJ Press Release No. 17–826, see id. AR-00992; and (v) the Backgrounder on Grant

23 Requirements, see id. AR-00993. These are nearly the identical records it unsuccessfully relied on

24 in City of Philadelphia, 280 F. Supp. 3d at 619–625, with the addition of the Letter to Rep.

25 Culberson. The records do not “articulate a satisfactory explanation for [DOJ’s] action.” State

26 Farm, 463 U.S. at 43.

27

First, citing the 2007 OIG Audit Report, DOJ claims that the challenged conditions were

28 arrived at understandably because they promote interests in “maintain[ing] liaison” between tiers 43

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1 of government in criminal justice matters. DOJ Mot. for Summ. J. at 21. The thorough analysis

2 by the court in City of Philadelphia explains why this argument misses the mark. The 2007 OIG

3 Audit Report concluded that it could not “statistically extrapolate the number of offenses

4 committed by undocumented criminal aliens who were released from local custody without a

5 referral to ICE” and that it “could not determine if ICE was notified before the criminal aliens in

6 our sample were released from custody.” AR-00014. As a result, DOJ cannot look to this record

7 to establish that it properly “examine[d] the relevant data to reach a relevant basis for its

8 decision…because it failed to use the relevant data to form an opinion at all.” City of

9 Philadelphia, 309 F. Supp. 3d at 324 (internal quotations omitted) (identifying two more reasons

10 the 2007 OIG Report provided no support as to the arbitrary and capriciousness of the challenged

11 conditions).

12

Second, a similar issue arises with the 2016 OIG Memorandum. The Memorandum

13 presents findings on ten state and local jurisdictions, with the express purpose of updating DOJ on

14 steps taken to address compliance with Section 1373. See AR-00367. From the outset, this record

15 comes after “OJP notified SCAAP and JAG applicants about the requirement to comply with

16 Section 1373.” AR-00374. It does not attempt to justify any of the new conditions, and instead it

17 offers the DOJ steps to consider in light of DOJ’s focus on “ensuring that grant applicants comply

18 with Section 1373.” Id. DOJ cannot rely on this document to establish a “rational connection

19 between the facts found and the choice made” to impose the new conditions because the choice to

20 impose a certification condition was already made and this record does not purport to offer any

21 post-hoc rationalization. State Farm, 463 U.S. at 43.

22

Nevertheless, the 2016 OIG Memorandum recommends that DOJ consider providing

23 “clear guidance” on whether Section 1373 is an applicable federal law, acknowledging that the

24 record does not purport to provide that guidance and clarifying that DOJ has not yet confirmed

25 Section 1373’s applicability to the Byrne JAG grant statute. See AR-00374 at n.13. DOJ cannot

26 justify its certification condition on this record, which did not assess any of the reasons DOJ

27 imposed the certification condition and which offered recommendations to DOJ specifically in

28 response to DOJ’s decision to notify applicants of the certification condition. To attempt to justify 44

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1 the condition on this record is an exercise in circular reasoning. See City of Philadelphia, 280 F.

2 Supp. 3d at 624 (“The Attorney General cannot justify the Certification on a tautology; a report

3 concluding that many jurisdictions are not complying with Section 1373 does not justify imposing

4 a condition requiring those jurisdictions to certify compliance.”).

5

Third, in fiscal year 2016 the prior administration introduced the Section 1373 certification

6 idea and recognized Section 1373 as an applicable federal law for the Byrne JAG program. See

7 Attachment to Letter from Assistant Attorney General Kadzik to Rep. Culberson, AR-00384. The

8 attachment is a Memorandum from the Assistant Attorney General for OJP to DOJ’s Inspector

9 General, discussing OJP’s determination that Section 1373 is an applicable federal law for

10 purposes of the Byrne JAG grant program. See id. This document does not explain how or why

11 the OJP reached its determination about Section 1373 either. At most it demonstrates another

12 tautology where the DOJ is justifying its conclusion to impose the conditions in this lawsuit based

13 on a separate document that also makes an unsupported conclusion about the Section 1373

14 compliance condition.

15

Fourth, relying on the Backgrounder on Grant Requirements, DOJ contends that the

16 challenged conditions had a “goal of increasing information sharing between federal, state, and

17 local law enforcement . . . to enforce the law and keep our communities safe.” See Backgrounder,

18 AR-00993. I addressed the Backgrounder thoroughly in my prior Order. See Order at 21 (finding

19 that it was unclear that the certification condition had the requisite rational connection to the facts

20 in the Backgrounder). There is not a clear link, or at least the government has not been able to

21 provide one, between localities keeping release dates or contact information confidential and more

22 dangerous or less safe communities.

23

Finally, DOJ relies on a 2017 press release by the Attorney General proclaiming that

24 sanctuary city policies “make all of us less safe because they intentionally undermine our laws and

25 protect illegal aliens who have committed crimes.” DOJ Press Release No. 17–826, AR-00992.

26 The Attorney General contends that “[t]hese [sanctuary city] policies also encourage illegal

27 immigration and even human trafficking by perpetuating the lie that in certain cities, illegal aliens

28 can live outside the law.” Id. The press release expressly communicates the DOJ’s “top priority 45

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1 of reducing violent crime” by encouraging jurisdictions to “change their policies and partner with

2 federal law enforcement to remove criminals.” Id. Much of the rhetoric discussed in this

3 document tracks with the DOJ’s Backgrounder in the administrative record, such as the

4 contentions that sanctuary city policies make communities less safe, encourage illegal

5 immigration, and allow crimes to be committed. However, also like the Backgrounder, this press

6 release lacks any demonstrable linkage between allowing local government to maintain

7 immigration confidentiality and less safe communities. As noted in City of Philadelphia, some

8 claims in the press release are also “factually untrue” with respect to California’s laws and

9 policies. 280 F. Supp. 3d at 624; see also DOJ Press Release No. 17–826, AR-00992 (claiming

10 that sanctuary policies nationwide “perpetuat[e] the lie that in certain cities, illegal aliens can live

11 outside the law,” and “protect illegal aliens who have committed crimes.”).

12

It is worth emphasizing that the evidence before me indicates the opposite of DOJ’s

13 rhetoric. In contrast to DOJ’s unsubstantiated view, California shows that imposing the

14 challenged conditions may damage its law enforcement efforts. In support of its sanctuary

15 policies, the California Assembly Committee on Public Safety relied on a study finding lower

16 likelihoods of contacting law enforcement by Latinos (44 percent), undocumented immigrants (70

17 percent), and U.S.-born Latinos (28 percent) who were victims of a crime, for fear of police

18 inquiring into their immigration status. See CA RJN Ex. 4; see also Wong Decl. ¶¶ 35-38 (sharing

19 similar results in a separate study of San Diego undocumented Mexican nationals).

20

This evidence is not isolated to California. A letter from the Mayor of New Orleans to the

21 Attorney General explains the work their law enforcement does in coordination with federal

22 officials and why the conditions and rhetoric of the Executive Branch are hindering their work to

23 make communities safer. See AR-00487 (“Fear within immigrant communities pushes individuals

24 and families, undocumented or not, into the shadows, and makes the task of protecting everyone

25 much more difficult for law enforcement.”). A second letter from the City Solicitor of

26 Philadelphia explains its view that trust between law enforcement and residents, regardless of

27 immigration status, leads to safer communities. See AR-00640 (“gain[ing] the trust and

28 cooperation of . . . residents, crime victims and witnesses . . . regardless of their immigration 46

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1 status” makes the “community stronger and . . . streets safer.”). The record also includes a letter

2 from Milwaukee County’s Corporation Counsel to the Acting Assistant Attorney General, stating

3 that its local policies make the community safer and that the conditions will undermine those

4 policies. See AR-00722 (finding that its resolutions “make the community safer by fostering trust

5 between residents and local law enforcement.”).

6

Amici prosecutors and law enforcement leaders provide many other studies showing that

7 interjecting federal immigration enforcement into local law enforcement weakens trust, which is

8 vitally important to community-oriented policing and reducing crime. See Amicus Brief (CA Dkt.

9 No. 130; SF Dkt. No. 136-1). Not only do Latinos and undocumented immigrants become less

10 likely to contact law enforcement if they are victims or witnesses of a crime, but 85 percent of

11 immigrant families are mixed-status households, meaning that the fear or lack of trust extends to

12 United States citizens who worry about the deportation of their family members or close relatives.

13 See id. (citing Anita Khashu, The Role Of Local Police: Striking a Balance Between Immigration

14 Enforcement and Civil Liberties, Police Found. (Apr. 2009), available at

15 https://www.policefoundation.org/wp-content/uploads/2015/06/The-Role-of-Local-

16 PoliceNarrative.pdf.).

17

According to a study of law enforcement officers, two-thirds expressed views that

18 immigrants were reporting less crimes. See id. (citing Robert C. Davis et al., Access to Justice for

19 Immigrants Who Are Victimized, 12 Crim. Just. Pol’y Rev. 183, 187 (2001)). These sentiments

20 are corroborated by a national survey evidencing declines in immigrant communities that are

21 willing to cooperate with law enforcement. See id. (citing Nat’l Immigrant Women’s Advocacy

22 Project Report, at 99 (May 3, 2018), available at http://library.niwap.org/wp-

23 content/uploads/Immigrant-Access-to-Justice-National-Report.pdf.).

24

The evident consequence of a widespread fear of deportation within Latino communities is

25 an underreporting of violent crimes such as domestic violence and gang-related violence. See id.

26 (citing Michael Morris & Lauren Renee Sepulveda, A New ICE Age, Texas Dist. & Cty. Attorneys

27 Ass’n, The Texas Prosecutor, Vol. 47, No. 4 (July/Aug. 2017) (finding rape reporting by the

28 Hispanic community in Houston fell 40 percent from 2016 to 2017 despite overall increase in 47

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1 crime reporting city wide); James Queally, Fearing Deportation, Many Domestic Violence

2 Victims Are Steering Clear of Police and Courts, L.A. Times, Oct. 9, 2017,

3 http://www.latimes.com/local/lanow/la-me-lnundocumented-crime-reporting-20171009-

4 story.html. (finding similar declines in sexual assault and domestic violence reporting by the

5 Hispanic community, but not other ethnic groups, in San Diego, Los Angeles, and San

6 Francisco)). In another study focused on Latinas, those surveyed were increasingly unlikely to

7 report violent crimes because of a fear of deportation and a lack of trust in the police. See id.

8 (citing Jill Theresa Messing et al., Latinas’ Perceptions of Law Enforcement: fear of Deportation,

9 Crime Reporting, and Trust in the System, 30 J. Women & Soc. Work 328, 334 (2015)).

10

DOJ fails to explain adequately the reasons it imposed the challenged conditions. Its own

11 justifications cannot “be ascribed to a difference in view or the product of agency expertise;” the

12 record demonstrates the lack of evidence supporting its position, that it failed to consider

13 important problems with its conditions and has repeatedly offered explanations that are counter to

14 the evidence. State Farm, 463 U.S. at 43. The challenged conditions are arbitrary and capricious

15 under the APA.

16

DECLARATORY RELIEF

17

California and San Francisco seek a declaratory judgment that their respective laws comply

18 with Section 1373 so that they can complete the certification condition. On its cross motion for

19 summary judgment, DOJ argues that the requests for declaratory relief are non-justiciable under

20 principles of standing and ripeness. Further it asks for judgment denying declaratory relief for

21 California’s Values Act and San Francisco’s Administrative Code Chapters 12H and 12I.

22

When a party requests declaratory judgment, “the question in each case is whether the facts

23 alleged, under all the circumstances, show that there is a substantial controversy, between parties

24 having adverse legal interests, of sufficient immediacy and reality to warrant the issuance of a

25 declaratory judgment.” Maryland Cas. Co. v. Pac. Coal & Oil Co., 312 U.S. 270, 273 (1941). A

26 court can issue declaratory judgment “[i]n a case of actual controversy within its jurisdiction.” 28

27 U.S.C. § 2201(a). I find that the claims are ripe for review and issue declaratory relief consistent

28 with the forthcoming discussion. 48

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A. Justiciability 1
DOJ argues that San Francisco and California’s claims are not justiciable. It contends that 2
California does not have the injury-in-fact needed to establish standing and its claims are not ripe. 3
This is substantially the same argument it made against California’s preliminary injunction motion 4
(pertaining to Section 1373), which I rejected in a prior Order. See Order (CA Dkt. No. 89). It 5
makes a ripeness argument against San Francisco, though I also found standing and ripeness 6
previously. See Order Denying Motion to Dismiss at 2 (SF Dkt. No. 78). The analysis in those 7
Orders applies with equal force today and extends to all the challenged conditions. 8
California and San Francisco have demonstrated Article III standing to challenge the 9
conditions and their claims are ripe for review. Rather than restate the reasoning here, I refer to 10
the discussions of justiciability in my prior Orders. See Order at 11–19 (CA Dkt. No. 89) (finding 11
“the State has demonstrated Article III standing” and “its claims are ripe for review.”); Order at 2 12
(SF Dkt. No. 78) (discussing the same finding for San Francisco); see also Cnty. of Santa Clara, 13
275 F. Supp. 3d. at 1207–11 (discussing justiciability in the context of the previous Executive 14
Order imposing a Section 1373 certification condition). 15
B. Interpreting Section 1373 16
Assuming for the moment that Section 1373 is not unconstitutional on its face, I need to 17
consider what it requires. DOJ asserts that Section 1373, at a minimum, includes contact 18
information and release status information for any detained immigrants. See DOJ Mot. for Summ. 19
J. at 29; see also Sherman Decl. Ex. B (Defs. Interog. Resps. 6, 17). San Francisco and California 20
contend that Section 1373 only extends to citizenship and immigration status inquiries. See SF 21
Mot. for Summ. J. 22–24; CA Mot. for Summ. J. at 25-27. This familiar disagreement about 22
Section 1373 has already been analyzed and resolved by three district courts. 23
In Steinle v. City & Cnty. of San Francisco, the Hon. Joseph C. Spero found that Section 24
1373 was void of anything addressing inmate release dates because by its terms it only governed 25
citizenship or immigration status information. 230 F. Supp. 3d 994, 1015 (N.D. Cal. 2017) (“no 26
plausible reading of [Section 1373]...encompasses the release date of an undocumented inmate.”). 27
The court found no need to interpret legislative history because a plain reading of the statute is so 28
49

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1 clear. Following Steinle, in City of Philadelphia the court concluded that Section 1373 “does not

2 require advance notice of an individual’s release from custody.” City of Philadelphia, 309 F.

3 Supp. 3d at 332. The court offered two additional interpretations of Section 1373’s text as well.

4 The language “citizenship or immigration status” was limited to an individual’s class of presence

5 in the United States, such as undocumented, refugee, or United States citizen. Id. at 333. Further,

6 the language “information regarding” was also limited only to information relevant to the

7 “citizenship or immigration status” inquiry, of which release dates was not a part. Id. Finally, in

8 United States v. California, DOJ’s affirmative litigation to invalidate California’s sanctuary state

9 laws like the Values Act, DOJ argued that prohibiting release dates and addresses for detainees

10 violated Section 1373. United States v. California, 314 F. Supp. 3d at 1101. But the court found

11 “no direct conflict between SB 54 [the Values Act] and Section 1373.” Id. Section 1373 was

12 limited to information strictly related to immigration status and did not include information on

13 release dates and addresses. Id. at 1102.

14

I have also discussed Section 1373 in my prior Order on California’s preliminary

15 injunction motion. See Order (CA Dkt. No. 89). I found that the meaning of the phrase

16 “regarding immigration status” was ambiguous; DOJ offered no definition of the phrase. As I

17 wrote then, “Under the INA, almost every bit of information about an individual could be relevant

18 to status, particularly with respect to the right to asylum or as a defense to removal.” Id. I cannot

19 read the phrase “regarding immigration status” as broadly as the DOJ requests without inviting the

20 same concern for ambiguity I identified before. “A contrary interpretation would know no

21 bounds.” United States v. California, 314 F. Supp. 3d at 1102.

22

San Francisco and California are also correct that if Congress intended to give Section

23 1373 broad enforcement application, it could have used broader language. See Curtis v. United

24 States, 511 U.S. 485, 492 (1994) (finding Congress “knew how to do so” if it intended to draft a

25 statute broadly); see also United States v. California, 314 F. Supp. 3d at 1103 (“If Congress

26 intended the statute to sweep so broadly, it could have used broader language or included a list to

27 define the statute’s scope.”). For example, 8 U.S.C. § 1367(a)(2) was enacted within the same bill

28 as Section 1373 and prohibits immigration officials from disclosing “any information which 50

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1 relates to an alien.” In other provisions of the INA, Congress used language such as “information

2 regarding the name and address of the alien,” 8 U.S.C. § 1360(c)(2), information “about the alien’s

3 nationality, circumstances, habits, associations, and activities,” id. § 1231(a)(3)(C), “any

4 information...regarding the purposes and intentions of the applicant,” id. § 1225(a)(5), and

5 “information concerning the alien’s whereabouts and activities,” id. § 1184(k)(3)(A).

6

Accordingly, I agree with the other district courts that found Section 1373 would support

7 only a narrow interpretation that extends to “information strictly pertaining to immigration status

8 (i.e. what one’s immigration status is).” United States v. California, 314 F. Supp. 3d at 1102.

9

C. California’s Sanctuary State Laws Comply with Section 1373

10

California asserts that its laws comply with Section 1373 as this court narrowly interprets

11 the statute. It seeks declaratory judgment with respect to its TRUST Act, TRUTH Act, Values

12 Act, California Penal Code Sections 422.93, 679.10, and 679.11, California Code of Civil

13 Procedure Section 155, and California Welfare and Institutions Code Sections 827 and 831. The

14 DOJ only requests judgment for defendants on the Values Act, effectively conceding that the other

15 state laws would comply with Section 1373.6 Based on the DOJ’s concession, the only question

16 remaining is whether the Values Act complies with Section 1373.

17

California relies on its interpretation that the Values Act’s savings clause in subsection (e)

18 expressly authorizes compliance with Section 1373. See Cal. Gov. Code § 7284.6(e). The savings

19 clause states:

20

(e) This section does not prohibit or restrict any government entity or official from

21

sending to, or receiving from, federal immigration authorities, information

regarding the citizenship or immigration status, lawful or unlawful, of an

22

individual, or from requesting from federal immigration authorities immigration

status information, lawful or unlawful, of any individual, or maintaining or

23

exchanging that information with any other federal, state, or local government

24

entity, pursuant to Sections 1373 and 1644 of Title 8 of the United States Code.

Cal. Gov. Code § 7284.6 (emphasis added). 25

26 6 The DOJ discusses in a footnote that the other state laws that California seeks declaratory

27

judgment for may not be implicated by Section 1373 but may still give rise to different conflicts with analogous provisions elsewhere in the INA. See DOJ Mot. for Summ. J at 28 n.19 (“The

28

complexity of such an assessment is yet another reason not to evaluate these statutes where OJP has made no inquiry or allegation that they violate Section 1373.”).

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1

Given my interpretation of Section 1373, limiting it to information relevant to citizenship

2 or immigration status not including release date information, it is clear the Values Act complies

3 with Section 1373. Its savings clause expressly does not prohibit the state government from

4 communicating or sharing “information regarding the citizenship or immigration status, lawful or

5 unlawful, of an individual,” exactly what Section 1373 requires. Compare Cal. Gov. Code §

6 7284.6(e), with 8 U.S.C. § 1373 (stating state and local governments “may not prohibit, or in any

7 way restrict, any government entity or official from sending to, or receiving from, the [INS]

8 information regarding the citizenship or immigration status, lawful or unlawful, of any

9 individual.”).

10

D. San Francisco’s Sanctuary City Ordinances Comply with Section 1373

11

San Francisco also requests a declaratory judgment that its sanctuary city laws, Chapters

12 12H and 12I, comply with Section 1373. DOJ disputes declaratory relief because it asserts the

13 San Francisco laws prohibit providing contact information and the release status of detainees.

14 Because I do not interpret Section 1373 broadly to require state and local governments to share

15 contact information and release status information with federal immigration officials, I find that

16 San Francisco’s sanctuary city laws comply with the federal statute.

17

Chapter 12H prohibits San Francisco employees from “disseminat[ing] information

18 regarding release status of any individual or any other such personal information” and allows them

19 to communicate that information if required to by federal law. SF Admin. Code § 12H.2. The

20 term “personal information” is defined expressly in Chapter 12I as “any confidential, identifying

21 information about an individual, including, but not limited to, home or work contact information,

22 and family or emergency contact information.” See SF RJN Ex. A. San Francisco’s Board of

23 Supervisors also amended this chapter in 2016, changing restrictions on communicating

24 “immigration status” to “release status.” See SF RJN Ex. G. Chapter 12I prohibits responding to

25 detainer requests from federal immigration officials and allows employees to notify federal

26 officials of inmate release status in certain limited circumstances. SF Admin. Code § 12I.3.

27

There is no dispute that Chapters 12H and 12I prohibit sharing contact information and

28 release dates with ICE, but that is not a requirement of Section 1373. Still, the DOJ interprets 52

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1 Chapter 12H as violating Section 1373 even under the court’s interpretation, based on its language

2 prohibiting employees from “assist[ing] in the enforcement of Federal immigration law.” SF

3 Admin. Code § 12H.2. In reply, San Francisco contends that this general prohibition should not

4 control where elsewhere in the chapter there is specific language that only prohibits employees

5 from sharing release status information and personal information. I agree and do not read

6 Chapters 12H and 12I so broadly where a narrower reading harmonizes the sanctuary city laws

7 with Section 1373.

8

Neither Chapter 12H or 12I concerns communications about information on an

9 individual’s immigration and citizenship status. San Francisco’s six departments that received

10 Byrne JAG funds: the Department of Children Youth & Their Families, Adult Probation, Sheriff’s

11 Department, Police Department, District Attorney’s Office, and Public Defender’s Office, either

12 administer policies that are consistent with San Francisco’s Sanctuary City laws or do not have

13 policies that involve Chapters 12H and 12I. Cf. Fletcher Decl. ¶¶ 6–7; Hennessy Decl. ¶¶ 11, 17–

14 18; Sainez Decl. ¶¶ 9–11 (outlining policies consistent with San Francisco’s sanctuary city laws),

15 with Chyi Decl. ¶ 27; DeBerry Decl. ¶ 5; Adachi Decl. ¶ 5 (describing the lack of policies related

16 to Chapters 12H and 12I). Additionally, these departments have notified their employees that

17 federal laws requiring information-sharing, such as Section 1373, should be followed. See SF

18 RJN Ex. D; see also Fletcher Decl. ¶ 8; Hennessy Decl. ¶ 10; Sainez Decl. ¶ 8; Chyi Decl. ¶ 29;

19 DeBerry Decl. ¶ 7; Adachi Decl. ¶ 7.

20

DOJ discusses several San Francisco documents that it believes communicate policies

21 instructing employees to prohibit immigration status information-sharing. See DOJ Mot. for

22 Summ. J. at 33-34. It also believes the City Attorney’s Office’s written public guidance on

23 interacting with ICE agents give employees the impression that they should refuse to speak with

24 federal immigration officials because it lists what employees “are not required” to do for ICE

25 agents and italicizes negatives like the word “not.” I do not agree that the format of the documents

26 is significant or dispositive of compliance with Section 1373. What is required, and what is

27 apparent in the documents, is that they do not prohibit information-sharing of an individual’s

28 immigration status. San Francisco’s sanctuary city laws, Chapters 12H and 12I, comply with 53

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1 Section 1373.

2

INJUNCTIVE RELIEF

3

According to well-established principles of equity, a permanent injunction is appropriate

4 when: (i) a plaintiff “suffered an irreparable injury;” (ii) available remedies at law are

5 “inadequate;” (iii) the “balance of hardships” between the parties supports an equitable remedy;

6 and (iv) public interest is “not disserved.” eBay Inc. v. MercExchange, LLC, 547 U.S. 388, 391

7 (2006). For all the reasons discussed above, San Francisco and California are entitled to a

8 permanent injunction. They have demonstrated that the challenged conditions caused and will

9 continue to cause them constitutional injury because imposing those conditions violates the

10 separation of powers. As in City & Cty. of San Francisco v. Trump, DOJ “has not even attempted

11 to argue that the injunction causes it any burden at all” and in light of the loss of Byrne JAG

12 funding the balance of hardships tips in favor of enjoining the enforcement of the challenged

13 conditions against California and San Francisco. 897 F.3d at 1244. Finally, I renew my earlier

14 observation that “the public interest would appear to be better served if the [plaintiffs] did not have

15 to choose between the Byrne JAG Program grant funds to assist [their] criminal law enforcement

16 efforts and the health of [their] relationship with the immigrant community.” See Order at 27.

17 The public interest is not disserved here because an injunction “brings clarity to all parties and to

18 citizens dependent on public services.” City & Cty. of San Francisco, 897 F.3d at 1244.

19

The remaining question is one of scope. See Hills v. Gautreaux, 425 U.S. 284, 293–94

20 (1976) (“Once a constitutional violation is found, a federal court is required to tailor the scope of

21 the remedy to fit the nature and extent of the constitutional violation.”). After a careful review of

22 the record, I conclude that a nationwide injunction is the appropriate remedy in this case. That

23 said, I will stay the effect of the nationwide scope of the injunction until the Ninth Circuit has the

24 opportunity to review it on appeal.

25

A district court, pursuant to its powers in equity, “may command persons properly before

26 it to cease or perform acts outside its territorial jurisdiction.” Steele v. Bulova Watch Co., 344

27 U.S. 280, 289 (1952); see also United States v. Oregon, 657 F.2d 1009, 1016 n.17 (9th Cir.1981)

28 (“When a district court has jurisdiction over all parties involved, it may enjoin commission of acts 54

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1 outside of its district.”). Yet “injunctive relief should be no more burdensome to the defendant

2 than necessary to provide complete relief to the plaintiffs.” Califano v. Yamasaki, 442 U.S. 682,

3 702 (1979). When considering the scope of injunctive relief, the court “must be mindful of any

4 effect its decision might have outside its jurisdiction,” and “should not award injunctive relief that

5 would cause substantial interference with another court’s sovereignty.” United States v. AMC

6 Entm’t, Inc., 549 F.3d 760, 770 (9th Cir. 2008) (citing Steele, 344 U.S. at 289).

7

In City & Cty. of San Francisco, the Ninth Circuit discussed recent cases upholding

8 nationwide injunctions when “necessary to give Plaintiffs a full expression of their rights.” 897

9 F.3d at 1244 (collecting cases). Nationwide injunctions are exceptional but are “not necessarily

10 made over-broad by extending benefit or protection to persons other than prevailing parties in the

11 lawsuit—even if it is not a class action—if such breadth is necessary to give prevailing parties the

12 relief to which they are entitled.” Bresgal v. Brock, 843 F.2d 1163, 1170–71 (9th Cir. 1987).

13

The Ninth Circuit has offered recent guidance on the breadth of evidence and inquiry

14 needed to justify nationwide injunctive relief in the context of the Trump Administration’s

15 Executive Order attempting to place similar conditions on grant funding. See City & Cty. of San

16 Francisco, 897 F.3d at 1245 (vacating nationwide injunctive relief when “the record is

17 insufficiently developed as to the question of the national scope of the injunction” and lacks “a

18 more searching inquiry into whether this case justifies the breadth of the injunction imposed.”).

19 Granting a nationwide injunction requires me to undertake “careful consideration” of a factual

20 record evidencing “nationwide impact,” or in other words, “specific findings underlying the

21 nationwide application of the injunction.” Id. at 1231, 1244.7 The Ninth Circuit cited City of

22

23 7 At the hearing, California also argued that Ninth Circuit precedent compels a nationwide

24

injunction when there is a violation of the APA, as here, because the agency action is necessarily set aside. See Transcript at 27 (citing Earth Island Inst. v. Ruthenbeck, 490 F.3d 687, 699 (9th Cir.

25

2007), (rev’d in part on other grounds), (“The nationwide injunction…is compelled by the text of the Administrative Procedure Act...”). This line of reasoning was followed in City of Los Angeles

26

v. Sessions, 293 F. Supp. 3d 1087, 1101 (C.D. Cal. 2018), and the permanent injunction is currently on appeal in the Ninth Circuit. Yet even Earth Island Inst. recognized that a nationwide

27

injunction is discretionary relief that the Ninth Circuit reviews under an abuse of discretion. See 490 F.3d at 699. Here, I follow the Ninth Circuit’s guidance in City & Cty. of San Francisco, 897

28

F.3d at 1245, which more thoroughly addressed how district court’s exercise discretion and dealt specifically with conditions placed on the Byrne JAG grant program.

55

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1 Chicago, 888 F.3d at 292–93, for a point of comparison where the Seventh Circuit affirmed a

2 nationwide injunction in part because the statute “interconnects” all recipients of Byrne JAG

3 grants. Id. at 1244. The Seventh Circuit’s decision has now been vacated, but the district court’s

4 ruling remains.

5

California offers three reasons why a nationwide injunction is needed here: (i) it protects

6 California’s interest in its Byrne JAG funding because there is a limited annual fund; (ii) it is the

7 most equitable response to Section 1373’s unconstitutionality; and (iii) it addresses constitutional

8 deficiencies not geographically limited to California. San Francisco reiterates that nationwide

9 injunctive relief is appropriate when a federal law is invalid, adding that the new conditions for

10 Byrne JAG funding do not vary in their application or the legal issues presented for the hundreds

11 of jurisdictions that also apply for the grants.

12

As in City of Chicago, I find that this case presents a narrow issue of law that does not vary

13 from one jurisdiction to the next. 888 F.3d at 290–91. The court there explained how grant

14 recipients were interconnected because “[t]he conditions imposed on one can impact the amounts

15 received by others.” Id. at 292. It continued to specify that the funding the Attorney General

16 allocates under the Byrne JAG program is directly affected by the money distributed to other

17 applicants, because the amount withheld or penalized for non-compliance with other

18 Congressional statutory requirements is then reallocated to other recipients. See id. (citing 34

19 U.S.C. § 10156(f) (“If the Attorney General determines...that a State will be unable to qualify or

20 receive funds ...then such State’s allocation (or portion thereof) shall be awarded by the Attorney

21 General to units of local government, or combinations thereof, within such State...”); § 20927

22 (“Amounts not allocated under a program referred to in this section to a jurisdiction for failure to

23 substantially implement this subchapter shall be reallocated...”); § 30307(e) (“any amount that a

24 State would otherwise receive for prison purposes...shall be reduced by 5 percent, unless the chief

25 executive officer of the State submits to the Attorney General proof of compliance with this

26 chapter.”)). The structure of the grant program supports nationwide relief.

27

California contends that it will be unable to fund critical public safety programs if the

28 federal government continues to cut it off from funding it is allocated by the Byrne JAG program. 56

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1 See Jolls Decl. ¶ 19 (“a substantial number of local programs funded by the BSCC are funded

2 entirely or in large part by JAG” and California will not be able to continue funding them);

3 Caligiuri Decl. ¶¶ 23, 31, 32 (explaining the amount of CAMPgrant funding at issue and what

4 programs it funds); McDonnell Decl. ¶¶ 8–9, 15 (discussing the programs the Byrne JAG program

5 helps fund and the impact that lack of funding will have on them) (CA Dkt. No. 31). DOJ has

6 withheld $56.6 million nationwide and issued $197.3 million in Byrne JAG funding that

7 California was excluded from after the Seventh Circuit partially stayed its injunctive relief. See

8 CA RJN Exs. 27, 28. California’s funding also affects San Francisco’s sub-grant funding. See 34

9 U.S.C. § 10156(c)(2) (allocating a portion of state funding to local governments); see also City of

10 Chicago, 888 F.3d at 292 (finding it noteworthy that “the City is obligated to apply for Byrne JAG

11 funds not only for itself but for eleven neighboring localities.”).

12

San Francisco offers five declarations from municipal jurisdictions across the country,

13 similarly demonstrating the far-reaching impact that the Byrne JAG conditions and distributions

14 have on all types grant recipients across the geographical spectrum. See Jerzyk Decl. ¶ 9 (SF Dkt.

15 No. 123) (stating Central Falls, Rhode Island is presented with a Hobson’s Choice of declining

16 funding to protect its citizens or agreeing to the conditions at the expense of its longstanding

17 policies); Pittman Decl. ¶¶ 8, 10 (SF Dkt. No. 126) (stating the same Hobson’s Choice for Seattle

18 and the King County, Washington consortium of cities); Maesta Decl. ¶ 17 (SF Dkt. No. 127)

19 (stating the same Hobson’s Choice for Denver, Colorado); Hansen Decl. ¶ 5 (SF Dkt. No. 124)

20 (stating a nationwide injunction would make it possible for Montgomery County, Maryland to

21 accept Byrne JAG funding); Wright Decl. ¶ 8 (SF Dkt. No. 125) (stating that filing a lawsuit for

22 Somerville, Massachusetts is not feasible since the litigation costs outweigh the amount of funding

23 it would receive).

24

DOJ counters that nationwide injunctive relief is overbroad. It contends that a nationwide

25 injunction would violate Article III standing. See Gill v. Whitford, 138 S. Ct. 1916, 1930 (2018)

26 (rejecting standing for a statewide gerrymandering challenge because a plaintiff’s remedy must be

27 limited to his injury); see also Zepeda v. U.S. Immigration & Naturalization Serv., 753 F.2d 719,

28 729 n.1 (9th Cir. 1983) (finding that class action plaintiffs were not entitled to relief for those they 57

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United States District Court Northern District of California

1 did not represent outside of class certification). It also invokes the principle that injunctive relief

2 should be limited only to the relief needed for the plaintiffs before the court. See Los Angeles

3 Haven Hosp. v. Sebelius, 638 F.3d 644, 664 (9th Cir. 2011) (“injunctive relief should be no more

4 burdensome to the defendant than necessary to provide complete relief to the plaintiffs before the

5 court.”). During the hearing, it argued that nationwide injunctive relief should be limited to class

6 actions.

7

I am not persuaded that DOJ’s Article III standing argument should prevent a nationwide

8 injunction if it is evidently needed to provide complete relief from a facially unconstitutionally and

9 uniformly applied law. Like the Ninth Circuit, I disagree with DOJ’s wholesale arguments against

10 nationwide injunctions; the scope of nationwide injunctive relief is not limited to class actions.

11 See, e.g., Bresgal, 843 F.2d at 1170–71 (determining over-breadth by the relief the parties are

12 entitled to, not by the threshold issue of whether there is a certified class action).

13

DOJ expressed additional concern that nationwide injunctions prevent “legal questions

14 from percolating through the federal courts, encouraging forum shopping, and making every case

15 a national emergency for the courts and for the Executive Branch.” Trump v. Hawaii, 138 S. Ct.

16 2392, 2425 (2018) (Thomas, J., concurring). I share that concern. Indeed, the issues in this case

17 are the same issues before the Third and Seventh Circuits. See DOJ. Mot. for Summ. J. at 40

18 (noting that granting a nationwide injunction would authorize relief that the en banc Seventh

19 Circuit might itself reject). DOJ called nationwide injunctions a “one-way-ratchet” that allows

20 plaintiffs to have relief on behalf of all others, while the government cannot preclude all plaintiffs’

21 claims. City of Chicago, 888 F.3d at 298 (Manion, J., dissenting in part). That is also a fair point.

22

Amici assert, on the other hand, that because there is a narrow constitutional issue in

23 dispute with little variance in the DOJ’s arguments and defenses, this does not appear to be the

24 type of situation in which allowing more cases to percolate in federal courts would be of much

25 benefit. See Amicus Brief at 11 (SF Dkt. No. 137-1). In addition, a nationwide injunction would

26 not implicate some of the other concerns raised in the DOJ’s briefing. In L.A. Haven Hospice,

27 Inc., the Ninth Circuit held that “a nationwide injunction would not be in the public interest

28 because it would significantly disrupt the administration of the Medicare program . . . and would 58

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United States District Court Northern District of California

1 create great uncertainty.” 638 F.3d at 665. A nationwide injunction would not disrupt the

2 administration of the Byrne JAG program, a formula grant program that does not independently

3 give the Attorney General authority to impose additional conditions not conferred by Congress.

4 Public interest would be served, as I stated earlier, because an injunction would bring “clarity to

5 all parties and to citizens dependent on public services.” City & Cty. of San Francisco, 897 F.3d

6 at 1244. Without a nationwide injunction when the court finds a constitutional violation, there is

7 even greater likelihood that relief limited to the parties “would not cure the constitutional

8 deficiency, which would endure in all [its] applications.” See Int’l Refugee Assistance Project v.

9 Trump, 857 F.3d 554, 605 (4th Cir. 2017).

10

California and San Francisco have shown that Section 1373 is unconstitutional and that the

11 challenged conditions violate the separation of powers. In consideration of the factual record,

12 including the structure of the Byrne JAG program and the harm to jurisdictions across the country,

13 I find that this case justifies nationwide relief under City & Cty. of San Francisco, 897 F.3d at

14 1231. That said, this Order alternatively relies on my narrow interpretation of Section 1373 as it

15 applies to California’s and San Francisco’s “sanctuary” laws and practices. If the Ninth Circuit

16 agreed with those alternative findings, but disagrees about the constitutionality of Section 1373, a

17 nationwide injunction would be inappropriate because the laws and practices of each “sanctuary”

18 jurisdiction differ. Accordingly, I grant the injunction in favor of California and San Francisco

19 and stay its nationwide scope until the Ninth Circuit has the opportunity to consider it on appeal.

20

MANDAMUS RELIEF

21

California also seeks a writ of mandamus compelling the Attorney General to disburse

22 Byrne JAG and COPS grant funding because the challenged conditions are unlawful under the

23 APA. The APA authorizes the court to “compel agency action unlawfully withheld or

24 unreasonably delayed.” 5 U.S.C. § 706(1). The Ninth Circuit evaluates mandamus under the so-

25 called TRAC factors. See Indep. Min. Co. v. Babbitt, 105 F.3d 502, 507 (9th Cir. 1997) (citing

26 Telecommc’ns. Research & Action v. FCC (TRAC), 750 F.2d 70, 79–80 (9th Cir. 1984)).

27

(1) the time agencies take to make decisions must be governed by a rule of reason;

28

(2) where Congress has provided a timetable or other indication of the speed with

59

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United States District Court Northern District of California

which it expects the agency to proceed in the enabling statute, that statutory scheme

1

may supply content for this rule of reason; (3) delays that might be reasonable in

2

the sphere of economic regulation are less tolerable when human health and welfare

are at stake; (4) the court should consider the effect of expediting delayed action on

3

agency activities of a higher or competing priority; (5) the court should also take

into account the nature and extent of the interests prejudiced by delay; and (6) the

4

court need not find any impropriety lurking behind agency lassitude in order to hold

5

that agency action is unreasonably delayed.

750 F.2d at 80 (citations and internal quotation marks omitted). The first factor, the “rule of 6

reason,” is the most important but is not determinative. See In re Core Commc’ns, Inc., 531 F.3d 7

849, 855 (D.C. Cir. 2008). The court is still required to consider all factors. See In re A Cmty. 8

Voice, 878 F.3d 779, 786 (9th Cir. 2017). 9

Each factor supports mandamus relief for the Byrne JAG grant and COPS grant funding. 10

For the first two factors, delays beyond a year time frame preclude recipients from receiving their 11

awards when they need them to support more immediate projects or programs. See City of 12

Philadelphia, 309 F. Supp. 3d at 343 (“it bears emphasis that Congress specifically set the JAG 13

Program as an annual award, and the DOJ’s delay has precluded the City from receiving the 14

intended award at such time as the City can make timely use of it.”). The Byrne JAG program is a 15

formula grant that requires the Attorney General to disburse funds annually, and the COPS grant is 16

a competitive program California applies for and has traditionally received each year. 17

Factor three favors relief because the delay impacts human health and welfare, particularly 18

for California as the COPS and Byrne JAG funds aid task forces aimed at stopping illicit drug 19

trafficking and go towards funding court programs to reduce recidivism of at-risk youth. See Jolls. 20

Decl. ¶ 10; Caligiuri Decl. ¶¶ 23–25. Similarly, factor five supports relief because the human 21

welfare and community safety concerns that California’s grant funding addresses are at risk of 22

being discontinued for lack of funding and are prejudiced by this delay. Expediting this matter, as 23

discussed in factor four, would not prejudicially affect the federal government’s tangentially 24

related interest in federal immigration enforcement. Finally, the sixth factor, if it has any weight 25

at all here, would favor relief because DOJ is withholding grant funding based on conditions that 26

violate the separation of powers. I will GRANT California’s request for mandamus relief. 27

28 60

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United States District Court Northern District of California

1

CONCLUSION

2

For the reasons stated, California and San Francisco’s motions for summary judgment are

3 GRANTED and the DOJ’s motions for summary judgment are DENIED.8 Judgment will be

4 entered accordingly.

5

IT IS SO ORDERED.

6 Dated: October 5, 2018

7

8

William H. Orrick United States District Judge

9

10

11

12

13

14

15

16

17

18

19

20

21

22

23

24

25

26 8 The parties requested judicial notice of various public records and government documents in

27

support of their motions for summary judgment, with no opposition or dispute to their accuracy or authenticity. To the extent I rely on those documents, the requests are GRANTED. See CA Dkt.

28

Nos. 117, 125, 128; SF Dkt. Nos. 107, 115. All other requests for judicial notice are DENIED AS MOOT.

61

 
 Case 3:17-cv-04701-WHO Document 154 Filed 11/20/18 Page 1 of 4

1

2

3

4

UNITED STATES DISTRICT COURT

5

NORTHERN DISTRICT OF CALIFORNIA

6
7 STATE OF CALIFORNIA, ex rel. XAVIER BECERRA, Attorney General of the State of
8 California,

9

Plaintiff,

10

v.

11 JEFFERSON B. SESSIONS III, Attorney General of the United States, et al.,
12 Defendants.
13

Case No. 3:17-cv-04701-WHO AMENDED JUDGMENT AND ORDER

14 On October 5, 2018, I granted plaintiff’s motion for summary judgment and denied

15 defendants’ motion for summary judgment, and I entered a corresponding Judgment and Order on

16 the same date. Dkt. No. 138. Defendants have filed a motion to alter or amend that judgment in

17 certain respects. Dkt. No. 139. Upon consideration of defendants’ motion and of all materials

18 submitted in relation thereto, defendants’ motion to alter or amend is hereby GRANTED.

19 Pursuant to Federal Rules of Civil Procedure 58, I hereby ENTER this amended judgment in

20 favor of plaintiff and against defendants, and grant the following relief as set forth below.

21

DECLARATION

22 I find declaratory relief under 28 U.S.C. § 2201 is appropriate in this case. It is hereby

23 DECLARED that:

24 1. The 8 U.S.C. § 1373 certification condition, and the access and notice conditions for

25 Byrne JAG grant funding are unconstitutional because they: (i) exceed the

26 congressional authority conferred to the Executive Branch; (ii) they exceed the

27 Congress’s spending powers under Article I of the Constitution to the extent Congress

28

Case 3:17-cv-04701-WHO Document 154 Filed 11/20/18 Page 2 of 4

1

conferred authority to the Attorney General; and (iii) they violate the Administrative

2

Procedure Act.

3

2. The State’s TRUST, TRUTH, Values Act, and Shield Confidentiality Statutes comply

4

with 8 U.S.C. § 1373.

5

3. 8 U.S.C. § 1373 is unconstitutional on its face under the Tenth Amendment of the

6

United States Constitution.

7

PERMANENT INJUNCTION

8

I also find a permanent injunction is appropriate in this case for the reasons stated in the

9 October 4, 2018, Order granting plaintiff’s motion for summary judgment. Pursuant to Federal

10 Rule of Civil Procedure 65, it is now ORDERED that defendants ARE HEREBY RESTRAINED

11 AND ENJOINED from committing, performing, directly or indirectly, the following acts:

12

1. Using the Section 1373 certification condition, and the access and notice conditions

13

(“Challenged Conditions”) as requirements for Byrne JAG grant funding for any

14

California state entity, any California political subdivision, or any jurisdiction in the

15

United States.

16

2. Withholding, terminating, or clawing back JAG funding from, or disbarring or making

17

ineligible for JAG, any California state entity, any California political subdivision, or

18

any jurisdiction in the United States on the basis of the Challenged Conditions.

19

3. Withholding, terminating, or clawing back JAG or COPS funding from, or disbarring

20

or making ineligible for JAG or COPS, any California state entity or any California

21

political subdivision on account of any grant condition challenged in this lawsuit and

22

based on the TRUST Act, Cal. Gov’t Code §§ 7282-7282.5; the TRUTH Act, Cal.

23

Gov’t Code §§ 7283-7283.2; the California Values Act, Cal. Gov’t Code §§ 7284-

24

7284.12; California Penal Code §§ 422.93, 679.10, or 679.11; California Code of Civil

25

Procedure § 155; or California Welfare and Institutions Code §§ 827 or 831, or based

26

on policies implementing these statutes.

27

4. Withholding, terminating, or clawing back JAG or COPS funding from, or disbarring

28

or making ineligible for JAG or COPS, any California state entity or any California

2

Case 3:17-cv-04701-WHO Document 154 Filed 11/20/18 Page 3 of 4

1

political subdivision on account of the entity or jurisdiction spending its own money

2

on the program or activity that JAG or COPS would be funding during the period

3

under which Defendants withheld awards or funding from that entity or jurisdiction.

4

5. Enforcing 8 U.S.C. § 1373’s statutory obligations against any California state entity or

5

political subdivision.

6

6. Requiring compliance with 8 U.S.C. § 1373 as a grant condition against any California

7

state entity or political subdivision based on 34 U.S.C. § 10102(a)(6) or 34 U.S.C.

8

§ 10153(A)(5)(D), on the basis of 8 U.S.C. § 1373 being an “applicable Federal law,”

9

or on the basis of 8 U.S.C. § 1373’s independent statutory obligations.

10

Consistent with my October 5, 2018 Order granting plaintiff’s motion for summary

11 judgment, it is now ORDERED that the nationwide aspect of the permanent injunctive relief set

12 forth above is STAYED until the Ninth Circuit has the opportunity to consider it.

13

MANDATORY INJUNCTION

14

As set forth in my October 5, 2018 Order I found all the necessary elements for issuing

15 California mandamus relief are met. I hereby ORDER defendants to issue without further delay

16 the fiscal year 2017 JAG awards, without enforcement of the enjoined conditions, and JAG

17 funding, upon a jurisdiction’s acceptance of the award, to the California Board of State and

18 Community Corrections, and all California political subdivisions that applied for JAG.

19 Acceptance of the FY 2017 awards by the California Board of State and Community Corrections

20 or any California political subdivision shall not be construed as acceptance of the enjoined

21 conditions. After the jurisdiction or entity accepts the fiscal year 2017 award, defendants are

22 further ORDERED to process and approve the jurisdiction’s requests for drawdowns of the

23 jurisdiction’s fiscal year 2017 JAG funds as it would in the ordinary course, and without regard to

24 the enjoined conditions, compliance with 8 U.S.C. § 1373, or if the jurisdiction spent its own

25 money on the program or activity funded during the period under which defendants withheld

26 awards and funding.

27

Defendants are further ORDERED to permit without further delay, the California Bureau

28 of Investigation within the California Department of Justice to drawdown its fiscal year 2017

3

Case 3:17-cv-04701-WHO Document 154 Filed 11/20/18 Page 4 of 4

1 COPS grant award upon the Bureau of Investigation’s acceptance of its fiscal year 2017 COPS

2 grant. After the Bureau of Investigation accepts its fiscal year 2017 COPS award, defendants are

3 further ORDERED to process and approve the Bureau of Investigation’s requests for drawdowns

4 of the fiscal year 2017 COPS funds as it would in the ordinary course, and without regard to the

5 enjoined conditions, compliance with 8 U.S.C. § 1373, or if the Bureau of Investigation spent its

6 own money on the program or activity funded during the period under which defendants withheld

7 funding.

8

IT IS SO ORDERED.

9 Dated: November 20, 2018

10

11

WILLIAM H. ORRICK

12

United States District Judge

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4

 
 City and County of San Francisco v. Barr, 965 F.3d 753 (2020) 20 Cal. Daily Op. Serv. 6946

965 F.3d 753 United States Court of Appeals, Ninth Circuit.
CITY AND COUNTY OF SAN FRANCISCO, Plaintiff-Appellee, v.
William P. BARR, Attorney General; Alan R. Hanson; United States Department of Justice; Matt M. Dummermuth, Defendants-Appellants. State of California, ex rel. Xavier Becerra, in his official capacity as Attorney General of the State of
California, Plaintiff-Appellee, v.
William P. Barr, Attorney General; Alan R. Hanson; United States Department of Justice;
Matt M. Dummermuth; Phil E. Keith, Defendants-Appellants.
No. 18-17308, No. 18-17311 |
Argued and Submitted December 2, 2019 San Francisco, California | Filed July 13, 2020
Synopsis Background: Municipality and state brought actions against Attorney General and other Department of Justice (DOJ) officials to prevent DOJ from denying funding for criminal justice programs based on their failure to provide Department of Homeland Security (DHS) with access to detained aliens and advance notice of their scheduled release, or to certify their compliance with federal statute prohibiting them from restricting flow of information about aliens to DHS. The United States District Court for the Northern District of California, William H. Orrick, J., 349 F.Supp.3d 924, entered summary judgment in plaintiffs’ favor and issued nationwide permanent injunction. DOJ appealed.
Holdings: The Court of Appeals, Clifton, Senior Circuit Judge, held that:
DOJ exceeded its authority in conditioning funding on providing DHS with access to detained aliens and advance notice of their scheduled release;
1

California laws constraining law enforcement from providing federal immigration authorities with release dates of people in custody did not conflict with federal information-sharing statute;
municipality’s laws prohibiting its officials from responding to any non-criminal requests from Immigration and Customs Enforcement (ICE) did not conflict with federal statute; and
district court abused its discretion by issuing nationwide permanent injunction.
Affirmed in part and vacated in part.
Procedural Posture(s): On Appeal; Motion for Summary Judgment.
Attorneys and Law Firms
*755 Mark B. Stern (argued), Daniel Tenny, Katherine Twomey Allen, Brad Hinshelwood, and Laura E. Myron, Appellate Staff; Hashim M. Mooppan, Deputy Assistant Attorney General; David L. Anderson, United States Attorney; Joseph H. Hunt, Assistant Attorney General; United States Department of Justice, Civil Division, Washington, D.C.; for Defendants-Appellants.
Aileen M. McGrath (argued), Jesse C. Smith, Ronald P. Flynn, Yvonne R. Mere, Tara M. Steeley and Sara J. Eisenberg, Deputy City Attorneys; Dennis J. Herrera, City Attorney; Office of the City Attorney, San Francisco, California; for Plaintiff-Appellee City and County of San Francisco.
Joshua A. Klein (argued), Deputy Solicitor General; Kristin A. Liska, Associate Deputy Solicitor General; Lee Sherman, Deputy Attorney General; Sarah E. Belton, Supervising Deputy Attorney General; Michael L. Newman, Senior Assistant Attorney General; Edward C. DuMont, Solicitor General; Xavier Becerra, Attorney General; Office of the Attorney General, Oakland, California; for Plaintiff-Appellee State of California.
Matthew J. Piers, Chirag G. Badlani, and Caryn C. Lederer, Hughes Socol Peters Piers Resnick & Dym Ltd., Chicago, Illinois; Mary B. McCord, Joshua A. Geltzer, Nicolas Y. Riley, and Daniel B. Rice, Institute for Constitutional Advocacy and Protection, Washington, D.C.; for Amici Curiae Current and Former Prosecutors

City and County of San Francisco v. Barr, 965 F.3d 753 (2020) 20 Cal. Daily Op. Serv. 6946

and Law Enforcement Leaders.
Elizabeth B. Wydra, Brianne J. Gorod, and David H. Gans, Constitutional Accountability Center, Washington, D.C., for Amici Curiae Members of Congress.
James R. Williams, County Counsel; Greta S. Hansen, Chief Assistant County Counsel; Kavita Narayan and Laura S. Trice, Lead Deputy County Counsel; H. Luke Edwards, Fellow; Office of the County Counsel, County of Santa Clara, San Jose, California; for Amici Curiae 43 Counties, Cities, and Municipal Agencies; National League of Cities; International Municipal Lawyers Association; and International City/County Management Association.
Robert W. Perrin, Sarah F. Mitchell, and Michael A. Hale, Latham & Watkins LLP, Los Angeles, California, for Amicus Curiae Anti-Defamation League.
Rachel S. Brass, Gibson Dunn & Crutcher LLP, San Francisco, California; Abiel Garcia and Ian F. Sprague, Gibson Dunn & Crutcher LLP, Los Angeles, California; for Amicus Curiae Public Counsel.
Barbara D. Underwood, Solicitor General; Anisha S. Dasgupta, Deputy Solicitor General; Eric R. Haren, Special Counsel; Linda Fang, Assistant Solicitor General of Counsel; Letitia James, Attorney General; Office of the Attorney General, New York, New York; Phil Weiser Attorney General, Denver, Colorado; William Tong, Attorney General, Hartford, Connecticut; Kathleen Jennings, Attorney General, Wilmington, Delaware; Kwame Raoul, Attorney General, Chicago, Illinois; Brian E. Frosh, Attorney General, Baltimore, Maryland; Maura Healey, Attorney General, Boston, Massachusetts; Dana Nessel, Attorney General, Lansing, Michigan; Keith Ellison, Attorney General, St. Paul, Minnesota; Gurbir S. Grewal, Attorney General, Trenton, New Jersey; Hector Balderas, Attorney General, Santa Fe, New Mexico; Ellen F. Rosenblum, Attorney General, Salem, Oregon; Peter F. Neronha, Attorney General, Providence, Rhode Island; Thomas J. Donovan, Jr., Attorney General, Montpelier, Vermont; Robert W. Ferguson, Attorney General, Olympia, Washington; Karl A. Racine, Attorney General, Washington, D.C.; for Amici Curiae States of New York, Colorado, Connecticut, Delaware, Illinois, Maryland, Massachusetts, Michigan, Minnesota, New Jersey, New Mexico, Oregon, Rhode Island, Vermont, and Washington, and the District of Columbia.
Omar C. Jadwat and Lee Gelernt, American Civil Liberties Union, New York, New York; Spencer E.
2

Amdur and Cody H. Wofsy, American Civil Liberties Union, San Francisco, California; Mark Fleming and Katherine E. Melloy Goettel, National Immigrant Justice Center, Chicago, Illinois; for Amici Curiae American Civil Liberties Union, National Immigrant Justice Center, National Immigration Law Center, Washington Defender Association, Southern Poverty Law Center, Northwest Immigrant Rights Project, and New Orleans Workers’ Center for Racial Justice.
W. Hardy Callcott, Naomi A. Igra, and Mark Prior, Sidley Austin LLP, San Francisco, California, for Amici Curiae Immigrant Legal Resource Center and Asian Americans Advancing Justice-Asian Law Caucus.
Appeal from the United States District Court for the Northern District of California, William Horsley Orrick, District Judge, Presiding, D.C. No. 3:17-cv-04642-WHO, D.C. No. 3:17-cv-04701-WHO
Before: William A. Fletcher, Richard R. Clifton, and Eric D. Miller, Circuit Judges.
OPINION
CLIFTON, Circuit Judge:
*756 The federal government has provided funding for state and local criminal justice *757 programs through Edward Byrne Memorial Justice Assistance Grants since 2006. In Fiscal Year (“FY”) 2017, the Attorney General and the Department of Justice (“DOJ”) announced three new conditions that state and local governments must satisfy to receive Byrne grants. Two conditions require recipient jurisdictions to provide the Department of Homeland Security (“DHS”) with (1) access to the jurisdiction’s detention or correctional facilities to interview people in custody about their right to be in the United States (the “Access Condition”), and (2) advance notice of the scheduled release of aliens in the jurisdiction’s custody (the “Notice Condition”). The third condition requires jurisdictions to certify that their laws and policies comply with 8 U.S.C. § 1373, a federal statute prohibiting states and localities from restricting the flow of “information regarding [an individual’s]

City and County of San Francisco v. Barr, 965 F.3d 753 (2020) 20 Cal. Daily Op. Serv. 6946

citizenship or immigration status” between state and local officials and DHS (the “Certification Condition”).
Plaintiffs—the City and County of San Francisco and the State of California—are so-called “sanctuary” jurisdictions, which have enacted laws that limit their employees’ authority to assist in the enforcement of federal immigration laws. Plaintiffs sued DOJ, the Attorney General, and other DOJ officials (collectively, “DOJ”) to prevent DOJ from denying funding of Byrne grants for failure to comply with the Access, Notice, and Certification Conditions (collectively, the “Challenged Conditions”). Plaintiffs also sought a declaratory judgment that their respective “sanctuary” laws do not violate 8 U.S.C. § 1373, or alternatively, that 8 U.S.C. § 1373 is unconstitutional. On summary judgment, the district court entered declaratory relief in favor of Plaintiffs on all of their legal claims. It also permanently enjoined DOJ, among other things, from “[u]sing the Section 1373 certification condition, and the access and notice conditions ... as requirements for Byrne JAG grant funding.” It extended relief to the entire country by providing that the permanent injunction applied to “any California state entity, any California political subdivision, or any jurisdiction in the United States.”
Recent precedential decisions by this court have done the heavy lifting with regard to the merits of the relief granted by the district court. We held that DOJ lacked statutory authority to impose the Access and Notice Conditions on Byrne funds in reviewing a preliminary injunction obtained by the City of Los Angeles. See City of Los Angeles v. Barr, 941 F.3d 931 (9th Cir. 2019). Consistent with our discussion in City of Los Angeles, we affirm the injunction barring DOJ from using the Access and Notice Conditions as Byrne funding requirements for any California state entity or political subdivision.
We also uphold the injunction barring DOJ from denying or withholding Byrne funds on account of the Certification Condition based on Plaintiffs’ alleged non-compliance with 8 U.S.C. § 1373. We narrowly construed the statutory language of 8 U.S.C. § 1373 in an action filed by DOJ to enjoin California’s enforcement of its newly-enacted Values Act, Cal. Gov’t Code § 7284 et seq., to conclude that the Values Act did not conflict with § 1373. See United States v. California, 921 F.3d 865 (9th Cir. 2019), cert. denied, 590 U.S. ––––, ––– S.Ct. ––––, 207 L.Ed.2d 1072 (U.S. Jun. 15, 2020) (No. 19-532). Consistent with our analysis in that case, we hold that the remaining California and San Francisco laws at issue here also comply with 8 U.S.C. § 1373 and cannot be cited in
3

relation to the Certification Condition as a basis to deny Byrne funding.
With regard to the geographical reach of the relief granted by the district court, *758 however, we conclude that the district court abused its discretion in issuing an injunction that extended nationwide. Although San Francisco offered evidence that some jurisdictions across the country might welcome an injunction against the Challenged Conditions, nothing in the record or in the nature of the claims suggests that the relief granted by the district court needs to be extended to state and local governments outside of California, not parties to this litigation, in order to fully shield Plaintiffs. Therefore, we vacate the nationwide reach of the permanent injunction and limit its reach to California’s geographical boundaries.
I. Background The Byrne program is the “primary provider” of federal grant dollars to support state and local criminal justice programs. DOJ’s Office of Justice Programs, which administers the grant, disburses over $80 million in awards each year. California has used prior Byrne awards to support programs focused on criminal drug enforcement, violent crime, and anti-gang activities. San Francisco has used them to support programs focused on reducing the drug trade and providing services to individuals with substance and mental health issues.
Each year, DOJ distributes Byrne funds pursuant to a statutory formula based on population and violent crime rate. See 34 U.S.C. § 10156(d)(2)(A). In FY 2017, California, through its Board of State and Community Corrections, expected to receive $28.3 million and allocate $10.6 million in sub-grants to its localities. San Francisco expected to receive a sub-grant of $923,401, plus a direct award of $524,845 pursuant to its own FY 2017 application.
To receive and draw upon a Byrne award, a state or local government must submit an application that complies with the statutory requirements outlined in 34 U.S.C. § 10153, in a form set forth in annual solicitation documents that DOJ provides and in accordance with all lawful conditions stated therein. See 34 U.S.C. § 10153. DOJ’s FY 2017 solicitation documents included the Challenged Conditions at issue in this appeal.

City and County of San Francisco v. Barr, 965 F.3d 753 (2020) 20 Cal. Daily Op. Serv. 6946

A. The Challenged Conditions The FY 2017 Byrne solicitations included the Access and Notice Conditions, “two new express conditions” related to “the ‘program or activity’ that would be funded by the FY 2017 award.” Respectively, the Access and Notice Conditions require recipient jurisdictions to:
(1) permit personnel of the U.S. Department of Homeland Security (“DHS”) to access any correctional or detention facility in order to meet with an alien (or an individual believed to be an alien) and inquire as to his or her right to be or remain in the United States; and
(2) provide at least 48 hours’ advance notice to DHS regarding the scheduled release date and time of an alien in the jurisdiction’s custody when DHS requests such notice in order to take custody of the alien pursuant to the Immigration and Nationality Act.
The Byrne statute requires applicants to certify that “the applicant will comply with all provisions of this part and all other applicable Federal laws.” 34 U.S.C. § 10153(a)(5)(D). In FY 2016, DOJ announced that 8 U.S.C. § 1373 is an “applicable Federal law” under the Byrne statute. In relevant part, 8 U.S.C. § 1373 prohibits states and localities from restricting their officials from sharing “information regarding the citizenship or immigration status, lawful or unlawful, of any individual” with DHS.1
*759 In FY 2017, DOJ attached the Certification Condition to all Byrne awards. In the FY 2017 Byrne solicitations, DOJ announced that a jurisdiction cannot validly accept an award until its Chief Legal Officer executes and submits a form certifying that the jurisdiction complies with 8 U.S.C. § 1373. This form and the statutory text of 8 U.S.C. § 1373 were attached as appendices to the solicitations.

by the Byrne statute and violate constitutional separation of powers, the Spending Clause, and the Administrative Procedure Act (“APA”). Plaintiffs also argued that 8 U.S.C. § 1373 cannot be enforced against them because it violates the Tenth Amendment.
Plaintiffs understood the Access and Notice Conditions to be inconsistent with the sanctuary laws and policies they have enacted. Plaintiffs claimed, however, that they could comply with the Certification Condition if the statute on which it is based, 8 U.S.C. § 1373, were appropriately construed. Because DOJ threatened to withhold FY 2017 funds based on the assertion that Plaintiffs’ sanctuary laws violate 8 U.S.C. § 1373, Plaintiffs sought declaratory relief narrowly construing § 1373 and holding that the statute as so construed does not conflict with Plaintiffs’ sanctuary laws.2
*760 In October 2018, the district court decided the case in Plaintiffs’ favor on cross-motions for summary judgment. See City & Cty. of San Francisco v. Sessions, 349 F. Supp. 3d 924, 934 (N.D. Cal. 2018), judgment entered sub nom. California ex rel. Becerra v. Sessions, No. 3:17-CV-04701-WHO, 2018 WL 6069940 (N.D. Cal. Nov. 20, 2018). It issued declaratory and injunctive relief on all of Plaintiffs’ legal claims, holding the Challenged Conditions and 8 U.S.C. § 1373 unconstitutional and unenforceable against Plaintiffs and any other jurisdiction in the United States. The district court stayed the effect of the injunction’s nationwide scope pending appellate review. See id. at 973–74.
On appeal, DOJ argues that the Challenged Conditions were imposed pursuant to lawful authority and did not violate the Spending Clause or the APA, and that the district court erroneously construed 8 U.S.C. § 1373 and erred in holding that Plaintiffs’ respective laws did not conflict with § 1373. DOJ also argues that the district court abused its discretion by extending the scope of injunctive relief to non-parties nationwide.

B. Factual and Procedural History The City and County of San Francisco and the State of California filed lawsuits in the Northern District of California in August 2017, seeking to enjoin DOJ from implementing the Challenged Conditions. Plaintiffs asserted that the Challenged Conditions are not authorized
4

II. Standard of Review Decisions regarding matters of law, including issues of statutory interpretation, are reviewed de novo. Ileto v. Glock, Inc., 565 F.3d 1126, 1131 (9th Cir. 2009) (citations omitted). We review a decision to enter a nationwide injunction for abuse of discretion. Los Angeles Haven Hospice, Inc. v. Sebelius, 638 F.3d 644, 654 (9th

City and County of San Francisco v. Barr, 965 F.3d 753 (2020) 20 Cal. Daily Op. Serv. 6946

Cir. 2011). “District courts abuse their discretion when they rely on an erroneous legal standard or clearly erroneous finding of fact.” E. Bay Sanctuary Covenant v. Trump, 950 F.3d 1242, 1271 (9th Cir. 2020) (citation omitted). “[A]n overbroad injunction is an abuse of discretion.” California v. Azar, 911 F.3d 558, 582 (9th Cir. 2018) (quoting Stormans, Inc. v. Selecky, 586 F.3d 1109, 1140 (9th Cir. 2009)).
III. The Access and Notice Conditions The district court invalidated the Access and Notice Conditions on multiple grounds, holding that they exceed DOJ’s statutory authority, violate constitutional separation of powers, violate the Spending Clause, and are arbitrary and capricious under the APA. See City & Cty. of San Francisco, 349 F. Supp. 3d at 944–48, 955–66. While this appeal was pending, we upheld a preliminary injunction obtained by the City of Los Angeles against DOJ’s enforcement of the Access and Notice Conditions, holding that DOJ lacked statutory authority to implement them. See City of Los Angeles v. Barr, 941 F.3d 931, 945 (9th Cir. 2019).
DOJ contends that Congress granted it independent authority to establish the Access and Notice Conditions under 34 U.S.C. § 10102(a)(6). This statute provides: “The Assistant Attorney General shall ... exercise such other powers and functions as may be vested in the Assistant Attorney General pursuant to this chapter or by delegation of the Attorney General, including placing special conditions on all grants, and determining priority purposes for formula grants.” In City of Los Angeles, we held that when § 10102 was amended in *761 2006, “Congress affirmatively indicated its understanding that the Assistant AG’s powers and functions could include ‘placing special conditions on all grants, and determining priority purposes for formula grants.’ ” 941 F.3d at 939 (quoting 34 U.S.C. § 10102(a)(6)). We held, however, that the Access and Notice Conditions did not constitute “special conditions” or “priority purposes.” See id. at 939–44. Therefore, although we agreed with DOJ that it was given independent authority in § 10102(a)(6), we held that the Access and Notice Conditions were not imposed pursuant to this authority. Id. at 944.
DOJ alternatively argues that the Access and Notice Conditions are authorized by provisions in the Byrne statute requiring applicants to certify that “there has been
5

appropriate coordination” between the applicant and “affected agencies,” 34 U.S.C. § 10153(a)(5)(C), and to assure that it will maintain “programmatic” information “as the Attorney General may reasonably require,” id. § 10153(a)(4). We rejected these arguments in City of Los Angeles, holding that the requirements under the Access and Notice Conditions far exceed what the statutory language of these provisions require. See 941 F.3d at 944–45.
Other circuits have reached differing conclusions regarding DOJ’s authority under § 10102(a)(6) and the Byrne statute to impose the Access and Notice Conditions, which has resulted in a circuit split.3 Consistent with our analysis in City of Los Angeles, we affirm the district court’s order declaring the Access and Notice Conditions unlawful and enjoining DOJ from enforcing them against Plaintiffs.
IV. The Certification Condition and 8 U.S.C. § 1373 The district court enjoined DOJ from enforcing the Certification Condition on multiple alternative grounds. See City & Cty. of San Francisco, 349 F. Supp. 3d at 948–55, 957–61. Among other things, the district court declared that Plaintiffs’ sanctuary laws do not violate 8 U.S.C. § 1373, which it narrowly construed, and that DOJ cannot withhold Byrne funds pursuant to the Certification Condition by asserting that Plaintiffs’ laws prevent their compliance with § 1373. See id. at 968–70. Because we affirm on this basis, it is unnecessary for us to consider the district court’s alternative grounds for enjoining the Certification Condition, including constitutional grounds, and we do not address them.
As described above, at page 11, applicants for Byrne grants are required to certify that they “will comply with all provisions of this part and all other applicable Federal laws.” 34 U.S.C. § 10153(a)(5)(D). DOJ has identified 8 U.S.C. § 1373 as an “applicable Federal law” referenced in the statute. In relevant part, § 1373 prohibits states and local governments from restricting their officials from sharing “information regarding the citizenship or immigration status, lawful or unlawful, of any individual” with DHS.
This court recently interpreted § 1373 in United States v. California, 921 F.3d 865 (9th Cir. 2019), cert. denied, *762 590 U.S. ––––, ––– S.Ct. ––––, 207 L.Ed.2d 1072 (U.S. Jun. 15, 2020) (No. 19-532), a decision that was

City and County of San Francisco v. Barr, 965 F.3d 753 (2020) 20 Cal. Daily Op. Serv. 6946

rendered while this appeal was pending. In California, we reviewed the denial of DOJ’s motion for a preliminary injunction against California’s implementation of several recent enactments, including the Values Act, which DOJ brought affirmative litigation to invalidate. Among other things, DOJ argued that provisions in the Values Act governing the exchange of information with federal immigration authorities, See Cal. Gov’t Code § 7284.6(a)(1)(C)–(D),4 are prohibited by the information-sharing requirements of 8 U.S.C. § 1373. See California, 921 F.3d at 886, 891–93. We disagreed. See id. at 893.
DOJ argued that § 1373’s language referring to “information regarding ... citizenship or immigration status” should be construed to include information that helps federal immigration authorities determine “whether a given alien may actually be removed or detained,” such as information about when a person will be released from state or local custody. Id. at 891. We rejected DOJ’s broad construction of § 1373, holding that § 1373, by its terms, only concerned “ ‘information strictly pertaining to immigration status (i.e. what one’s immigration status is).’ ” Id. (quoting United States v. California, 314 F. Supp. 3d 1077, 1102 (E.D. Cal. 2018)).
In November 2017, using the same broad construction of § 1373 we later rejected in California, DOJ informed Plaintiffs that it had identified specific laws that appeared to violate § 1373, thereby rendering Plaintiffs ineligible for FY 2017 Byrne awards. In a letter to the State, DOJ specifically identified provisions of the Values Act and suggested that additional offending laws may be identified in the future. California accordingly sought a declaratory judgment that the Values Act and other state laws related to immigration enforcement and information-sharing—the TRUST Act, the TRUTH Act, and six confidentiality statutes5—did not violate 8 U.S.C. § 1373 or render California ineligible for Byrne funds under the Certification Condition. San Francisco requested similar relief regarding chapters 12H and 12I of the San Francisco Administrative Code, which DOJ identified as likely violative of § 1373 in a letter to San Francisco.6
*763 The district court entered declaratory judgment in Plaintiffs’ favor. See City & Cty. of San Francisco, 349 F. Supp. 3d at 966–70. It held that 8 U.S.C. § 1373 only narrowly “extends to ‘information strictly pertaining to immigration status (i.e. what one’s immigration status is),’ ” id. at 968 (quoting California, 314 F. Supp. 3d at 1102), and concluded that Plaintiffs’ respective sanctuary
6

laws did not violate § 1373 so construed, See id. at 968–70. We affirm.
As noted above, while this appeal was pending, we adopted the same narrow construction of § 1373 in California, holding that § 1373’s information-sharing requirements applied to “just immigration status” or “a person’s legal classification under federal law.” 921 F.3d at 891. We also held that the challenged provisions of the Values Act did not conflict with § 1373 because they restricted the sharing of release status and contact information but did not prohibit the sharing of information regarding “immigration status.”7 See id. at 891–93. Consistent with these holdings in California, we affirm the district court’s decision below, applying the same narrow construction of § 1373 to the state and local laws at issue in this case.
DOJ “effectively conceded” that the TRUST Act, TRUTH Act, and confidentiality statutes do not conflict with § 1373 by not arguing otherwise on summary judgment. City & Cty. of San Francisco, 349 F. Supp. 3d at 968; See Kingdomware Tech., Inc. v. United States, ––– U.S. ––––, 136 S. Ct. 1969, 1978, 195 L.Ed.2d 334 (2016). DOJ now argues for the first time on appeal that these laws offend § 1373 because, “[a]s relevant here,” they constrain law enforcement from sharing the release dates of people in custody. Section 1373 does not cover release dates, however. California, 921 F.3d at 891–92. We therefore affirm that these California laws do not conflict with § 1373.
DOJ similarly argues that San Francisco’s laws conflict with § 1373 because they prohibit local officials from giving federal immigration authorities the contact information and release status of aliens and from “us[ing] any City funds or resources to assist in the enforcement of Federal immigration law.” S.F., Cal., Admin. Code ch. 12H, § 12H.2; see also id. ch. 12I, §§ 12I.2, 12I.3. However, these prohibitions are subject to a savings clause, which requires compliance with federal law. See id. ch. 12H, § 12H.2. Because § 1373 does not extend to contact and release status information, See California, 921 F.3d at 891–92, federal law does not *764 preclude San Francisco from prohibiting the release of such information.
DOJ claims that San Francisco, in accordance with these provisions, “provides no information in response to ICE requests regarding individuals in local custody.” The declaration cited in the record, however, only states that “[l]ocal law enforcement officials in San Francisco,

City and County of San Francisco v. Barr, 965 F.3d 753 (2020) 20 Cal. Daily Op. Serv. 6946

California, do not respond to any non-criminal requests from ICE, including requests for notification regarding the release of detainees ....” Again, such information is not within the scope of 8 U.S.C. § 1373. See California, 921 F.3d at 891–92. And while San Francisco prohibits the “use [of] any City funds or resources to assist in the enforcement of federal immigration law,” see S.F. Admin. Code ch. § 12H.2, no evidence has been cited to suggest that local officials have ignored ICE requests for “immigration status” information based on this provision or on any other basis.
In sum, we affirm the ruling below holding that Plaintiffs’ respective sanctuary laws comply with 8 U.S.C. § 1373. Although the laws restrict some information that state and local officials may share with federal authorities, they do not apply to information regarding a person’s citizenship or immigration status, which is the only information to which § 1373 extends. We uphold the injunction barring DOJ from withholding or denying Byrne funds to Plaintiffs based on the assertion that these laws violate 8 U.S.C. § 1373 and/or the Certification Condition.
V. The Nationwide Injunction We uphold the district court’s entry of permanent injunctive relief barring DOJ from withholding or denying Plaintiffs’ Byrne awards based on the Challenged Conditions. However, we vacate the district court’s imposition of a nationwide injunction. The district court abused its discretion by issuing a nationwide injunction without determining whether Plaintiffs needed relief of this scope to fully recover. We do not remand to the district court for further consideration because Plaintiffs have established no nexus between their claimed injuries and the nationwide operation of the Challenged Conditions, and they advance no reason why limiting the injunction along state boundaries would not grant them full relief. Therefore, the geographical reach of the relief should be limited to California.
“Although ‘there is no bar against ... nationwide relief in federal district court or circuit court,’ such broad relief must be ‘necessary to give prevailing parties the relief to which they are entitled.’ ” California v. Azar, 911 F.3d 558, 582 (9th Cir. 2018) (quoting Bresgal v. Brock, 843 F.2d 1163, 1170–71 (9th Cir. 1987)). On appeal, Plaintiffs argue that they are entitled to nationwide relief by emphasizing evidence in the record, including
7

declarations from “all types [of] grant recipients across the geographical spectrum” about how they are affected by the Challenged Conditions. Plaintiffs argue that the “far-reaching impact” of the Challenged Conditions makes this “one of the ‘exceptional cases’ in which program-wide relief is necessary.”
The district court agreed, basing its analysis on “recent guidance” from the Ninth Circuit “on the breadth of evidence and inquiry needed to justify nationwide injunctive relief in the context of [Executive action] attempting to place similar conditions on grant funding.” See City & Cty. of San Francisco, 349 F. Supp. 3d at 971 (citing City & Cty. of San Francisco v. Trump, 897 F.3d 1225, 1245 (9th Cir. 2018)). In those cases, we held that nationwide injunctions against unlawful Executive action, obtained by state and municipal plaintiffs, were overbroad where, *765 among other things, the record contained no evidence showing impact to other jurisdictions. See Trump, 897 F.3d at 1244 (noting that the proffered evidence was “limited to the effect of the [Executive] Order on their governments and to the State of California”); Azar, 911 F.3d at 584 (holding that there was no “showing of nationwide impact or [harm to other jurisdictions of] sufficient similarity to the plaintiff states”). Citing these cases, the district court reasoned that, before issuing a nationwide injunction, it must “undertake ‘careful consideration’ of a factual record evidencing ‘nationwide impact,’ or in other words, ‘specific findings underlying the nationwide application of the injunction.’ ” City & Cty. of San Francisco, 349 F. Supp. 3d at 971 (quoting Trump, 897 F.3d at 1231, 1244).
While it was correct to state this rule, the district court erred by considering only this rule. This rule addresses one form of tailoring: “Once a constitutional violation is found, a federal court is required to tailor the scope of the remedy to fit the nature and extent of the constitutional violation.” Trump, 897 F.3d at 1244 (quoting Hills v. Gautreaux, 425 U.S. 284, 293–94, 96 S.Ct. 1538, 47 L.Ed.2d 792 (1976)). However, this is not the only form of tailoring a court must do when issuing a remedy. See, e.g., Azar, 911 F.3d at 584.
We have long held that an injunction “should be no more burdensome to the defendant than necessary to provide complete relief to the plaintiffs before the court.” Los Angeles Haven Hospice, Inc. v. Sebelius, 638 F.3d 644, 664 (9th Cir. 2011) (quoting Califano v. Yamasaki, 442 U.S. 682, 702, 99 S.Ct. 2545, 61 L.Ed.2d 176 (1979)) (internal quotation marks omitted). Under this rule, the appropriate inquiry would be whether Plaintiffs

City and County of San Francisco v. Barr, 965 F.3d 753 (2020) 20 Cal. Daily Op. Serv. 6946

themselves will continue to suffer their alleged injuries if DOJ were enjoined from enforcing the Challenged Conditions only in California. The district court did not make such a finding, and it is not apparent how the record would support one.
We look first to the injuries Plaintiffs claimed. By imposing the Challenged Conditions, San Francisco argued, DOJ offered “an unacceptable choice: either comply with [the Challenged Conditions] and abandon local policies that San Francisco has found to promote public safety and foster trust and cooperation between law enforcement and the public, or maintain these policies but forfeit critical funds that it relies on to provide essential services to San Francisco residents.” San Francisco claimed that it faced “the immediate prospect of losing over $1.4 million” in program funds. California claimed it was at risk of “losing $31.1 million,” which would have devastating impacts on state and local law enforcement agencies, requiring many of their programs to be cut.
An injunction barring DOJ from enforcing the Challenged Conditions within California’s geographical limits would resolve Plaintiffs’ injuries by returning Plaintiffs to the status quo. While extending this same relief to non-party jurisdictions beyond California’s geographical bounds would likely be of consequence to those other jurisdictions, it does nothing to remedy the specific harms alleged by the Plaintiffs in this case. A nationwide injunction was therefore unnecessary to provide complete relief. It was overbroad and an abuse of discretion.
We acknowledge the “increasingly controversial” nature of nationwide injunctions, Innovation Law Lab v. Wolf, 951 F.3d 1073, 1094 (9th Cir. 2020), and distinguish this case from recent decisions in which we upheld this form of relief. See id. (affirming an injunction operating in four *766 states within three circuits); E. Bay Sanctuary Covenant v. Barr (E. Bay Transit), Nos. 19-16487, 19-16773, 964 F.3d 832 (9th Cir. Jul. 6, 2020) (same); E. Bay Sanctuary Covenant v. Trump (E. Bay Port-of-Entry), 950 F.3d 1242 (9th Cir. 2020).
Plaintiffs here, a state and a municipality, “ ‘operate in a fashion that permits neat geographic boundaries.’ ” E. Bay Port-of-Entry, 950 F.3d at 1282–83 (quoting E. Bay Sanctuary Covenant v. Trump (E. Bay III), 354 F. Supp. 3d 1094, 1120–21 (N.D. Cal. 2018)). Because Plaintiffs do not operate or suffer harm outside of their own borders, the geographical scope of an injunction can be neatly drawn to provide no more or less relief than what is necessary to redress Plaintiffs’ injuries. This is
8

distinguishable from a case involving plaintiffs that operate and suffer harm in a number of jurisdictions, where the process of tailoring an injunction may be more complex.
We recognized this distinction when we affirmed the nationwide injunction entered in East Bay Port-of-Entry:
The Organizations ... represent “asylum seekers” broadly. Unlike the plaintiffs in California v. Azar—individual states seeking affirmance of an injunction that applied past their borders—the Organizations here “do not operate in a fashion that permits neat geographic boundaries.” [E. Bay] III, 354 F. Supp. 3d at 1120–21... An injunction that, for example, limits the application of the Rule to California, would not address the harm that one of the Organizations suffers from losing clients entering through the Texas-Mexico border. One fewer asylum client, regardless of where the client entered the United States, results in a frustration of purpose (by preventing the organization from continuing to aid asylum applicants who seek relief), and a loss of funding (by decreasing the money it receives for completed cases).
950 F.3d at 1282–83 (citation omitted).
Accordingly, we vacate the nationwide reach of the permanent injunction and limit its reach to California’s geographical boundaries.
VI. Conclusion We affirm the district court’s order to the extent it held that DOJ did not have statutory authority to impose the Access and Notice Conditions and declared that Plaintiffs’ respective sanctuary laws comply with 8 U.S.C. § 1373, the law on which the Certification Condition is based. We uphold the permanent injunction barring DOJ from withholding, terminating, or clawing back Byrne funding based on the Challenged Conditions and statutes at issue. We also determine that the district court abused its discretion in granting nationwide injunctive relief, which was broader than warranted, and vacate that portion of the district court’s order.
Each party to bear its own costs.
AFFIRMED in part; VACATED in part.

City and County of San Francisco v. Barr, 965 F.3d 753 (2020) 20 Cal. Daily Op. Serv. 6946

All Citations

965 F.3d 753, 20 Cal. Daily Op. Serv. 6946 Footnotes

1

Congress enacted 8 U.S.C. § 1373 as part of the Illegal Immigration Reform and Immigrant Responsibility Act of

1996. See Pub. L. No. 104-208, div. C, tit. VI, § 642, 110 Stat. 3009, 3009–707. It provides in full:

(a) In general

Notwithstanding any other provision of Federal, State, or local law, a Federal, 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, the Immigration and Naturalization Service information regarding the citizenship or

immigration status, lawful or unlawful, of any individual.

(b) Additional authority of government entities

Notwithstanding any other provision of Federal, State, or local law, no person or agency may prohibit, or in any

way restrict, a Federal, State, or local government entity from doing any of the following with respect to

information regarding the immigration status, lawful or unlawful, of any individual:

(1) Sending such information to, or requesting or receiving such information from, the Immigration and

Naturalization Service.

(2) Maintaining such information.

(3) Exchanging such information with any other Federal, State, or local government entity.

(c) Obligation to respond to inquiries

The Immigration and Naturalization Service shall respond to an inquiry by a Federal, State, or local government

agency, seeking to verify or ascertain the citizenship or immigration status of any individual within the

jurisdiction of the agency for any purpose authorized by law, by providing the requested verification or status

information.

2

The State of California sought similar relief related to a condition that DOJ placed on FY 2017 awards under the

Community Oriented Policing Services (“COPS”) grant program and the COPS Anti-Methamphetamine Program

(“CAMP”). See generally 34 U.S.C. § 10381 et seq. Like the Certification Condition attached to Byrne awards, the

challenged condition attached to the COPS/CAMP awards requires applicants to certify their compliance with 8

U.S.C. § 1373. California’s Department of Justice submitted this certification when it applied for a FY 2017 CAMP

award, and although it received $1 million in CAMP funding that year, it was told it could not “draw down” the funds

pending an inquiry into its compliance with § 1373.

The dispositive issue on appeal related to COPS/CAMP is whether California’s state laws render California ineligible

for COPS/CAMP funding based on asserted non-compliance with 8 U.S.C. § 1373. This issue is identical to the issue

regarding the Certification Condition attached to the Byrne program. See infra Part IV. For the sake of simplicity, the

issue is discussed in the text of this opinion in terms of the Byrne program’s Certification Condition, but that

discussion and our resolution of that challenge applies similarly to the § 1373 certification condition under

COPS/CAMP.

3

To date, only the Second Circuit has held that the Access and Notice Conditions were imposed pursuant to

appropriate authority. New York v. Dep’t of Justice, 951 F.3d 84, 101–04, 116–22 (2d Cir. 2020). The First, Third, and

Seventh Circuits have held to the contrary. City of Chicago v. Barr, 957 F.3d 772 (7th Cir. 2020); City of Chicago v.

Sessions, 888 F.3d 272, 283–87 (7th Cir. 2018), reh’g en banc granted in part, opinion vacated in part, No. 17-2991,

2018 WL 4268817 (7th Cir. June 4, 2018), vacated, No. 17-2991, 2018 WL 4268814 (7th Cir. Aug. 10, 2018); City of

Philadelphia v. Att’y Gen., 916 F.3d 276, 284–88 (3d Cir. 2019); City of Providence v. Barr, 954 F.3d 23, 45 (1st Cir.

2020).

9

City and County of San Francisco v. Barr, 965 F.3d 753 (2020) 20 Cal. Daily Op. Serv. 6946

4

Cal. Gov’t Code § 7284.6(a)(1)(C) prohibits California law enforcement agencies from “[p]roviding information

regarding a person’s release date or responding to requests for notification by providing release dates or other

information unless that information is available to the public, or is in response to a notification request from

immigration authorities” under certain circumstances.

Cal. Gov’t Code § 7284.6(a)(1)(D) prohibits the agencies from “[p]roviding personal information ... about an

individual, including, but not limited to, the individual’s home address or work address unless that information is

available to the public.”

5

The TRUST Act limits the ability of state and local law enforcement officers to provide federal immigration

authorities information regarding a person’s release date from custody. Cal. Gov’t Code §§ 7282.5(a),

7284.6(a)(1)(C). The TRUTH Act requires local officials to provide inmates in their custody a notification of rights

before any interview by immigration authorities takes place regarding civil immigration violations. Id. § 7283.1(a).

The six confidentiality laws at issue include three statutes concerning the protection of minors’ personal

information, see Cal. Welf. & Inst. Code §§ 827, 831; Cal. Code of Civ. Proc. § 155, and three statutes concerning

California’s policy of protecting the personal information of victims and witnesses of crime, see Cal. Penal Code §§

422.93, 679.10, 679.11.

6

DOJ’s letter cited specific concerns with sections 12H.2 and 12I.3 of the San Francisco Administrative Code. Section

12H.2 prohibits the “use [of] any City funds or resources to assist in the enforcement of Federal immigration law or

to gather or disseminate information regarding release status of individuals or any such personal information as

defined in Chapter 12I,” except as “required by Federal or State statute, regulation, or court decision.” S.F., Cal.,

Admin. Code ch. 12H, § 12H.2; see id. ch. 12I, § 12I.2 (“ ‘Personal information’ means any confidential, identifying

information about an individual, including, but not limited to, home or work contact information, and family or

emergency contact information.”). Section 12I.3 provides that City law enforcement officials “shall not ... provide

any individual’s personal information to a federal immigration officer, on the basis of an administrative warrant,

prior deportation order, or other civil immigration document based solely on alleged violations of the civil provisions

of immigration laws.” Id. ch. 12I, § 12I.3(e).

7

Indeed, we noted that one provision of the Values Act expressly permits the sharing of information pursuant to §

1373. California, 921 F.3d at 891 (quoting Cal. Gov’t Code § 7284.6(e) (“This section does not prohibit or restrict any

government entity or official from sending to, or receiving from, federal immigration authorities, information

regarding the citizenship or immigration status, lawful or unlawful, of an individual ... pursuant to Section[ ] 1373.”)).

10

 
 U.S. Department of Justice
Office of the Solicitor General
Washington, D.C. 20530
January 27, 2021
Honorable Scott S. Harris Clerk Supreme Court of the United States Washington, D.C. 20543
Re: Robert M. Wilkinson, Acting Attorney General, et al. v. City and County of San Francisco, et al., No. 20-666
Dear Mr. Harris:
On November 13, 2020, the government filed the petition for a writ of certiorari in the above-captioned case, seeking review of a decision of the Ninth Circuit concerning certain conditions that the Department of Justice imposed on awards made under the Edward Byrne Memorial Justice Assistance Grant (Byrne JAG) program for Fiscal Year 2017. Pet. 1-35. The government’s petition is currently pending and has been distributed today for consideration at the Court’s conference of February 19, 2021. In its response to the government’s petition, filed on January 13, 2021, respondent California suggested that, in light of the then-“impending transition in federal administrations, * * * it would be appropriate for the Court to defer action on th[e] petition * * * until it can ascertain the position of the incoming administration on these issues.” California Cert. Br. 7; see id. at 16-18; see also San Francisco Br. in Opp. 36 (opposing certiorari but suggesting that, “[i]n the alternative, the Court should hold the petition[ ] to hear the incoming presidential administration’s position”); id. at 16-19. The government agrees with California’s suggestion that the Court hold the petition in abeyance pending a determination by the current Administration of its position concerning the issues presented in the petition. Cf. Stephen M. Shapiro et al., Supreme Court Practice § 5.9, at 5-31 (11th ed. 2019) (noting other circumstances in which the Court will defer action on a pending petition for a writ of certiorari).
In addition, as respondents in No. 20-666 have noted, two other petitions for writs of certiorari are pending that seek review of a decision of the Second Circuit concerning the same Byrne JAG conditions at issue here, and that raise the same or substantially similar questions. E.g., California Cert. Br. 16-17 (discussing New York v. Department of Justice, No. 20-795 (filed Dec. 7, 2020), and City of New York v. Department of Justice, No. 20-796 (filed Dec. 7, 2020)). In its combined response to those petitions, the government recommended that both be granted and that, in light of the significant overlap between those petitions and the government’s petition in this case (No. 20-666), all three petitions be consolidated. 20-795 & 20-796 Gov’t Cert. Mem. 1-2, 5-7. Those other two petitions have also been distributed for the Court’s February 19 conference. In light of the overlap among the cases, if the Court holds the government’s petition in this case in abeyance, the Court also may wish to defer consideration of the petitions in Nos. 20-795 and 20-796 so that the Court may consider all three petitions together at an appropriate time, as

respondents in this case have suggested. See California Cert. Br. 7, 16; San Francisco Br. in Opp. 3, 36. We are accordingly serving a copy of this letter on counsel for petitioners in Nos. 20-795 and 20-796.
Sincerely,
/s/
Elizabeth B. Prelogar Acting Solicitor General
cc: See Attached Service List

20-0666 WILKINSON, ROBERT M., ACTING ATTORNEY GENERAL, ET AL., CITY AND COUNTY OF SAN FRANCISCO, CALIFORNIA, ET AL.
SARA J. EISENBERG SAN FRANCISCO CITY ATTORNEY'S OFFICE CITY HALL 1 DR. CARLTON B. GOODLETT PL. ROOM 234 SAN FRANCISCO, CA 94102 415-554-4633 CITYATTORNEY@SFGOV.ORG
JOSHUA A. KLEIN DEPUTY SOLICITOR GENERAL STATE OF CALIFORNIA DEPARTMENT OF JUSTICE 455 GOLDEN GATE AVE. SUITE 11000 SAN FRANCISCO, CA 94102 JOSHUA.KLEIN@DOJ.CA.GOV