Create an Alert for This Case on RECAP

ADRMOP,CLOSED,RELATE

U.S. District Court California Northern District (San Francisco) CIVIL DOCKET FOR CASE #: 3:17-cv-04642-WHO

City and County of San Francisco v. Sessions et al Assigned to: Judge William H. Orrick Relate Case Case: 3:17-cv-00485-WHO Case in other court: 18-17308 Cause: 28:1331 Fed. Question

Date Filed: 08/11/2017 Date Terminated: 10/05/2018 Jury Demand: None Nature of Suit: 890 Other Statutory Actions Jurisdiction: U.S. Government Defendant

Plaintiff City and County of San Francisco

represented by Mollie M Lee Attorney General's Office 455 Golden Gate Avenue, Suite 11000 San Francisco, CA 94102-7004 415-510-4439 Email: mollie.lee@doj.ca.gov TERMINATED: 08/27/2018 LEAD ATTORNEY

Aileen Marie McGrath Akin Gump Strauss Hauer & Feld LLP 580 California Street Suite 1500 San Francisco, CA 94104 415-765-9553 Email: AMcGrath@akingump.com ATTORNEY TO BE NOTICED

Christine Van Aken Office of the City Attorney 1 Dr. Carlton B. Goodlett Place City Hall, Room 234 San Francisco, CA 94102 415-554-4633 Fax: 415-554-4699

Email: christine.van.aken@sfcityatty.org TERMINATED: 08/14/2018
Ronald P. Flynn San Francisco City Attorney's Office Chief Deputy City Attorney City Hall, Room 234 1 Dr. Carlton B. Goodlett Place San Francisco, CA 94102-5408 (415) 554-4708 Fax: (415) 255-0733 Email: ronald.flynn@sfcityatty.org ATTORNEY TO BE NOTICED
Sara Jennifer Eisenberg San Francisco City Attorney's Office Chief of Strategic Advocacy City Hall, Room 234 1 Dr. Carlton B. Goodlett Place San Francisco, CA 94102 (415) 554-4633 Fax: (415) 554-4715 Email: sara.eisenberg@sfcityatty.org ATTORNEY TO BE NOTICED
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 ATTORNEY TO BE NOTICED
Yvonne Rosil Mere Ofc City Attorney 1390 Market St, 7FL San Francisco, CA 94102 415-554-3874 Email: yvonne.mere@sfcityatty.org ATTORNEY TO BE NOTICED
Dennis J. Herrera

V.
Intervenor Pla
City of Los Angeles TERMINATED: 09/11/2017

City Attorney for the City and County of San Francisco 1 Dr. Carlton B. Goodlett Place City Hall, Room 234 San Francisco, CA 94102 (415) 554-4748 Fax: (415) 554-4715 Email: cityattorney@sfcityatty.org ATTORNEY TO BE NOTICED
represented by James Patrick Clark Los Angeles City Attorney's Office 200 N. Main Street City Hall East, Suite 800 Los Angeles, CA 90012 213-978-8364 Fax: 213-978-8313 Email: james.p.clark@lacity.org LEAD ATTORNEY ATTORNEY TO BE NOTICED
David Zionts Covington and Burling LLP One CityCenter 850 Tenth Street, NW Washington, DC 20001 (202) 662-5987 Email: dzionts@cov.com PRO HAC VICE ATTORNEY TO BE NOTICED
Ivano Michael Ventresca Covington and Burling, LLP 850 Tenth Street NW Washington, DC 20001 202-662-5203 Email: iventresca@cov.com PRO HAC VICE ATTORNEY TO BE NOTICED
Michael Joseph Dundas Office of the Los Angeles City

Attorney 200 N. Main Street City Hall East, Suite 800 Los Angeles, CA 90012 213-978-8100 Fax: 213-978-8211 Email: mike.dundas@lacity.org ATTORNEY TO BE NOTICED
Michael Nelson Feuer Los Angeles City Attorney's Office 200 N. Main Street City Hall East, Suite 800 Los Angeles, CA 90012 213-978-8100 Fax: 213-978-8312 Email: mike.feuer@lacity.org ATTORNEY TO BE NOTICED
Mitchell Aaron Kamin Covington & Burling LLP 1999 Avenue of the Stars, Suite 3500 Los Angeles, CA 90067-4643 424-332-4759 Email: mkamin@cov.com ATTORNEY TO BE NOTICED
Monica Ramirez Almadani Covington & Burling LLP 1999 Avenue of the Stars Los Angeles, CA 90067 424-332-4800 Fax: 424-332-4749 Email: mralmadani@cov.com ATTORNEY TO BE NOTICED
Neema T. Sahni Covington and Burling LLP 1999 Avenue of the Stars, Suite 3500 Los Angeles, CA 90067 (424) 332-4757 Fax: (424) 332-4749 Email: nsahni@cov.com ATTORNEY TO BE NOTICED

V. Defendant Jefferson Beauregard Sessions, III Attorney General of the United States
Defendant Alan R Hanson Acting Assistant Attorney General of the United States
Defendant United States Department of Justice

represented by 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 LEAD ATTORNEY ATTORNEY TO BE NOTICED
Daniel D. Mauler 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
represented by W. Scott Simpson (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Daniel D. Mauler (See above for address) ATTORNEY TO BE NOTICED
represented by W. Scott Simpson (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Daniel D. Mauler (See above for address) ATTORNEY TO BE NOTICED

Defendant Laura L. Rogers
Defendant Matt M. Dummermuth Defendant Mathew Whitaker Amicus Kamala D. Harris
Amicus Richard Blumenthal
Amicus Cory A. Booker
Amicus Richard J. Durbin

represented by W. Scott Simpson (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

Amicus Mazie K. Hirono
Amicus Patrick J. Leahy
Amicus Robert Menendez
Amicus Sheldon Whitehouse
Amicus Ron Wyden
Amicus Zoe Lofgren
Amicus Nancy Pelosi
Amicus

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

Pete Aguilar
Amicus Nanette Diaz Barragan
Amicus Karen Bass
Amicus Judy Chu
Amicus Mark DeSaulnier
Amicus Anna G. Eshoo
Amicus Jimmy Gomez
Amicus

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

Congressman Jared Huffman
Amicus Pramila Jayapal
Amicus Barbara Lee
Amicus Ted W. Lieu
Amicus Alan Lowenthal
Amicus Doris O. Matsui
Amicus Jerry McNerney
Amicus

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

Grace F. Napolitano
Amicus Lucille Roybal-Allard
Amicus Eric Swalwell
Amicus Mike Thompson
Amicus Norma Torres
Amicus American Civil Liberties Union Foundation
Amicus American Civil Liberties Union Foundation of California Amicus

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 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 Spencer Elijah Wittmann Amdur (See above for address) ATTORNEY TO BE NOTICED

Northwest Immigrant Rights Project Amicus National Immigrant Justice Center Amicus National Immigration Law Center
Amicus Immigrant Legal Resource Center
Amicus Washington Defender Association
Amicus Current and Former Prosecutors and Law Enforcement Leaders
Amicus County of Santa Clara

represented by Spencer Elijah Wittmann Amdur (See above for address) ATTORNEY TO BE NOTICED
represented by Spencer Elijah Wittmann Amdur (See above for address) ATTORNEY TO BE NOTICED
represented by Spencer Elijah Wittmann Amdur (See above for address) ATTORNEY TO BE NOTICED
represented by Spencer Elijah Wittmann Amdur (See above for address) ATTORNEY TO BE NOTICED
represented by Spencer Elijah Wittmann Amdur (See above for address) 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 ATTORNEY TO BE NOTICED
represented by Kavita Kandala Narayan Office of the County Counsel, County of Santa Clara 70 West Hedding Street East Wing, 9th Floor San Jose, CA 95051 408-299-5900

Amicus State of New York
Amicus State of Connecticut
Amicus State of Delaware
Amicus State of Illinois
Amicus State of Iowa
Amicus State of Maryland
Amicus

Fax: 408-292-7240 Email: Kavita.Narayan@cco.sccgov.org 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
represented by Linda Fang (See above for address) ATTORNEY TO BE NOTICED
represented by Linda Fang (See above for address) ATTORNEY TO BE NOTICED

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

V. Miscellaneous State of California

represented by 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

Date Filed 08/11/2017
08/11/2017 08/11/2017
08/11/2017 08/11/2017 08/11/2017

#

Docket Text

COMPLAINT Complaint for Declaratory and Injunctive

1

Relief against Department of Justice, Alan R Hanson, Jefferson

Beauregard Sessions, III ( Filing fee $ 400, receipt number 0971-

11624195.). Filed byCity and County of San Francisco.

(Attachments: # 1 Exhibit A, # 2 Exhibit B, # 3 Civil Cover

Sheet)(Herrera, Dennis) (Filed on 8/11/2017) (Entered:

08/11/2017)

Proposed Summons. (Herrera, Dennis) (Filed on 8/11/2017)

2

(Entered: 08/11/2017)

3 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. 51(e)(7). A scheduling order will be sent by Notice of Electronic Filing (NEF) within two business days. Consent/Declination due by 8/25/2017. (jmlS, COURT STAFF) (Filed on 8/11/2017) (Entered: 08/11/2017)

4 NOTICE of Appearance by Mollie M Lee Notice of Appearance of Counsel (Lee, Mollie) (Filed on 8/11/2017) (Entered: 08/11/2017)

5 CONSENT/DECLINATION to Proceed Before a US Magistrate Judge by City and County of San Francisco.. (Lee, Mollie) (Filed on 8/11/2017) (Entered: 08/11/2017)
6 NOTICE of Appearance by Aileen Marie McGrath Notice of Appearance of Counsel (McGrath, Aileen) (Filed on 8/11/2017) (Entered: 08/11/2017)

08/11/2017 08/14/2017
08/14/2017 08/14/2017 08/14/2017 08/14/2017 08/15/2017

7 NOTICE of Appearance by Christine Van Aken Notice of Appearance of Counsel (Van Aken, Christine) (Filed on 8/11/2017) (Entered: 08/11/2017)

8 CLERK'S NOTICE OF IMPENDING REASSIGNMENT TO A U.S. DISTRICT COURT JUDGE: The Clerk of this Court will now randomly reassign this case to a District Judge because either (1) a party has not consented to the jurisdiction of a Magistrate Judge, or (2) time is of the essence in deciding a pending judicial action for which the necessary consents to Magistrate Judge jurisdiction have not been secured. You will be informed by separate notice of the district judge to whom this case is reassigned.

ALL HEARING DATES PRESENTLY SCHEDULED BEFORE THE CURRENT MAGISTRATE JUDGE ARE VACATED AND SHOULD BE RE-NOTICED FOR HEARING BEFORE THE JUDGE TO WHOM THIS CASE IS REASSIGNED.

This is a text only docket entry; there is no document associated with this notice. (rmm2S, COURT STAFF) (Filed on 8/14/2017) (Entered: 08/14/2017)

9 NOTICE of Appearance by Ronald P. Flynn Notice of Appearance of Counsel (Flynn, Ronald) (Filed on 8/14/2017) (Entered: 08/14/2017)

10 NOTICE of Appearance by Yvonne Rosil Mere Notice of Appearance of Counsel (Mere, Yvonne) (Filed on 8/14/2017) (Entered: 08/14/2017)

11 NOTICE of Appearance by Tara M. Steeley Notice of Appearance of Counsel (Steeley, Tara) (Filed on 8/14/2017) (Entered: 08/14/2017)

Initial Case Management Scheduling Order with ADR

12

Deadlines: Case Management Statement due by 11/2/2017.

Initial Case Management Conference set for 11/9/2017 10:00

AM. (hdjS, COURT STAFF) (Filed on 8/14/2017) (Entered:

08/15/2017)

Summons Issued as to Department of Justice, Alan R Hanson,

13

Jefferson Beauregard Sessions, III, U.S. Attorney and U.S.

Attorney General (hdjS, COURT STAFF) (Filed on 8/15/2017)

(Entered: 08/15/2017)

08/15/2017 08/16/2017
08/16/2017 08/17/2017 08/17/2017 08/17/2017 08/22/2017
08/22/2017 08/22/2017

14 ORDER, Case reassigned to Judge Saundra Brown Armstrong. Magistrate Judge Maria-Elena James no longer assigned to the case.. Signed by Executive Committee on 8/15/17. (haS, COURT STAFF) (Filed on 8/15/2017) (Entered: 08/15/2017)

CASE MANAGEMENT SCHEDULING ORDER FOR

15

REASSIGNED CIVIL CASE. Joint Case Management

Statement due by 11/8/2017. Telephonic Case Management

Conference set for 11/15/2017 02:30 PM. Signed by Judge

Saundra B Armstrong on 8/16/17. (dtmS, COURT STAFF)

(Filed on 8/16/2017) (Entered: 08/16/2017)

16 NOTICE of Appearance by Lee Isaac Sherman for Non-Party State of California (Sherman, Lee) (Filed on 8/16/2017) (Entered: 08/16/2017)

17 MOTION to Relate Case filed by State of California. (Sherman, Lee) (Filed on 8/17/2017) (Entered: 08/17/2017)

18 Declaration of Lee Sherman Support California's Motion to Relate Cases filed byState of California. (Attachments: # 1 Declaration, # 2 Declaration, # 3 Declaration)(Sherman, Lee) (Filed on 8/17/2017) (Entered: 08/17/2017)

19 Proposed Order Granting State of California's Administrative Motion to Relate Cases by State of California. (Sherman, Lee) (Filed on 8/17/2017) (Entered: 08/17/2017)

20 MOTION to Intervene filed by City of Los Angeles. Motion Hearing set for 10/11/2017 01:00 PM before Hon. Saundra Brown Armstrong. Responses due by 9/5/2017. Replies due by 9/12/2017. (Attachments: # 1 Exhibit A, # 2 Exhibit B, # 3 Proposed Order)(Kamin, Mitchell) (Filed on 8/22/2017) (Entered: 08/22/2017)

21 MOTION to Shorten Time filed by City of Los Angeles. (Attachments: # 1 Exhibit A, # 2 Declaration of James Clark in support, # 3 Proposed Order)(Kamin, Mitchell) (Filed on 8/22/2017) (Entered: 08/22/2017)

22 CERTIFICATE OF SERVICE by City of Los Angeles re 20 MOTION to Intervene , 21 MOTION to Shorten Time (Kamin, Mitchell) (Filed on 8/22/2017) (Entered: 08/22/2017)

08/22/2017 08/22/2017 08/22/2017 08/22/2017 08/23/2017 08/23/2017 08/23/2017 08/23/2017
08/23/2017 08/23/2017
08/24/2017

CERTIFICATE OF SERVICE by City and County of San

23

Francisco (Lee, Mollie) (Filed on 8/22/2017) (Entered:

08/22/2017)

24 MOTION for leave to appear in Pro Hac Vice ( Filing fee $ 310, receipt number 0971-11650491.) filed by City of Los Angeles. (Ventresca, Ivano) (Filed on 8/22/2017) (Entered: 08/22/2017)

25 MOTION for leave to appear in Pro Hac Vice ( Filing fee $ 310, receipt number 0971-11650812.) filed by City of Los Angeles. (Zionts, David) (Filed on 8/22/2017) (Entered: 08/22/2017)

26 NOTICE of Appearance by Monica Marie-Ramirez Almadani (Almadani, Monica) (Filed on 8/22/2017) (Entered: 08/22/2017)

27 NOTICE of Appearance by Michael Joseph Dundas (Dundas, Michael) (Filed on 8/23/2017) (Entered: 08/23/2017)

28 NOTICE of Appearance by James Patrick Clark (Clark, James) (Filed on 8/23/2017) (Entered: 08/23/2017)

29 NOTICE of Appearance by Michael Nelson Feuer (Feuer, Michael) (Filed on 8/23/2017) (Entered: 08/23/2017)

30 Statement of Non-Opposition re 17 MOTION to Relate Case filed byDepartment of Justice, Alan R Hanson, Jefferson Beauregard Sessions, III. (Related document(s) 17 ) (Simpson, W.) (Filed on 8/23/2017) (Entered: 08/23/2017)

31 NOTICE of Appearance by Neema Sahni (Sahni, Neema) (Filed on 8/23/2017) (Entered: 08/23/2017)

32 RELATED CASE ORDER. This matter is found to be related to Case No. 3:17cv485-WHO. Signed by Judge William H. Orrick on 08/23/2017. (jmdS, COURT STAFF) (Filed on 8/23/2017) (Entered: 08/23/2017)

33 ORDER REASSIGNING CASE. Case reassigned to Judge William H. Orrick for all further proceedings. Hon. Saundra Brown Armstrong 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. Signed by Judge Executive Committee on 8/24/2017. (Attachments: # 1 Notice of Eligibility for Video Recording)(jmlS, COURT STAFF) (Filed

08/25/2017 08/28/2017 08/28/2017 08/30/2017 08/31/2017 09/11/2017 10/06/2017
10/10/2017

on 8/24/2017) Modified on 8/25/2017 (tlhS, COURT STAFF). (Entered: 08/24/2017)

RELATED CASE ORDER. Case No. 3:17cv4701 will be

34

reassigned and related. Signed by Judge William H. Orrick on

08/25/2017. (jmdS, COURT STAFF) (Filed on 8/25/2017)

(Entered: 08/25/2017)

35 Order by Hon. William H. Orrick granting 24 Motion for Pro Hac Vice by Ivano M. Ventresca. (jmdS, COURT STAFF) (Filed on 8/28/2017) (Entered: 08/28/2017)

OPPOSITION/RESPONSE (re 20 MOTION to Intervene ) filed

36

byDepartment of Justice, Alan R Hanson, Jefferson Beauregard

Sessions, III. (Simpson, W.) (Filed on 8/28/2017) (Entered:

08/28/2017)

37 REPLY (re 20 MOTION to Intervene ) filed byCity of Los Angeles. (Kamin, Mitchell) (Filed on 8/30/2017) (Entered: 08/30/2017)

38 Order by Hon. William H. Orrick granting 25 Motion for Pro Hac Vice by Zionts. (jmdS, COURT STAFF) (Filed on 8/31/2017) (Entered: 08/31/2017)

ORDER DENYING 20 MOTION TO INTERVENE by Hon.

39

William H. Orrick. (jmdS, COURT STAFF) (Filed on

9/11/2017) (Entered: 09/11/2017)

40 MOTION for Extension of Time to File Response/Reply as to 1

Complaint, filed by Department of Justice, Alan R Hanson, Jefferson Beauregard Sessions, III. (Attachments: # 1 Memorandum Opinion and Order, Chicago v. Sessions, # 2 Motion to Stay Nationwide Application of Preliminary Injunction, Chicago v. Sessions, # 3 Declaration of W. Scott Simpson)(Simpson, W.) (Filed on 10/6/2017) (Entered: 10/06/2017)

41 OPPOSITION/RESPONSE (re 40 MOTION for Extension of

Time to File Response/Reply as to 1 Complaint, ) Plaintiff City and County of San Francisco's Opposition to Defendants' Motion for Enlargement of Time filed byCity and County of San Francisco. (McGrath, Aileen) (Filed on 10/10/2017) (Entered: 10/10/2017)

10/10/2017 10/11/2017 10/19/2017 10/25/2017 10/31/2017
11/06/2017 11/07/2017 11/09/2017

42 Declaration of Aileen M. McGrath in Support of 41 Opposition/Response to Motion, Declaration of Aileen M. McGrath in Support of City and County of San Francisco's Opposition to Defendants' Motion for Enlargement of Time filed byCity and County of San Francisco. (Related document(s) 41 ) (McGrath, Aileen) (Filed on 10/10/2017) (Entered: 10/10/2017)

43 ORDER GRANTING ENLARGEMENT OF TIME TO RESPOND TO COMPLAINT by Judge William H. Orrick granting 40 Motion for Extension of Time. The federal defendants shall respond to the Complaint on or before October 31, 2017. (jmdS, COURT STAFF) (Filed on 10/11/2017) (Entered: 10/11/2017)

CASE MANAGEMENT CONFERENCE ORDER - Case

44

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)

45 CERTIFICATE OF SERVICE by City and County of San

Francisco re 44 Case Management Scheduling Order, (McGrath, Aileen) (Filed on 10/25/2017) (Entered: 10/25/2017)

MOTION for Summary Judgment filed by Department of Justice,

46

Alan R Hanson, Jefferson Beauregard Sessions, III. 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. (Attachments:

# 1 Declaration of Alan R. Hanson, # 2 Mem. from Michael E.

Horowitz, Inspector Gen., to Karol V. Mason, Assistant Atty Gen.,

OJP, # 3 Proposed Order)(Simpson, W.) (Filed on 10/31/2017)

(Entered: 10/31/2017)

47 ADR Clerk's Notice re: Non-Compliance with Court Order (ewh, COURT STAFF) (Filed on 11/6/2017) (Entered: 11/06/2017)

48 NOTICE of Appearance by Sara Jennifer Eisenberg (Eisenberg, Sara) (Filed on 11/7/2017) (Entered: 11/07/2017)

49 CLERK'S NOTICE - Hearing as to 46 MOTION for Summary Judgment is continued to 12/13/2017 02:00 PM in Courtroom 4, 17th Floor, San Francisco before Judge William H.

11/13/2017 11/13/2017 11/14/2017
11/14/2017 11/16/2017 11/20/2017 11/21/2017

Orrick. (This is a text-only entry generated by the court. There is no document associated with this entry.) (jmdS, COURT STAFF) (Filed on 11/9/2017) (Entered: 11/09/2017)

50 STIPULATION WITH PROPOSED ORDER Stipulation and [Proposed] Order For Continuance of Time to Respond to Defendants' Motion for Summary Judgment filed by City and County of San Francisco. (McGrath, Aileen) (Filed on 11/13/2017) (Entered: 11/13/2017)

51 Order for Continuance of Time to Respond to Defendants' Motion for Continuance of Time to Respond to Defendants' Motion for Summary Judgment by Judge William H. Orrick granting 50 Stipulation. (jmdS, COURT STAFF) (Filed on 11/13/2017) (Entered: 11/13/2017)

52 Joint ADMINISTRATIVE MOTION Relief from Automatic

Referral to the ADR Multi-Option Program re 12 Initial Case Management Scheduling Order with ADR Deadlines filed by Department of Justice, Alan R Hanson, Jefferson Beauregard Sessions, III. Responses due by 11/20/2017. (Attachments: # 1 Proposed Order)(Simpson, W.) (Filed on 11/14/2017) (Entered: 11/14/2017)

53 CASE MANAGEMENT STATEMENT Joint Case Management Statement filed by City and County of San Francisco. (McGrath, Aileen) (Filed on 11/14/2017) (Entered: 11/14/2017)

54 Order by Judge William H. Orrick granting 52 Administrative Motion for Relief from Automatic Referral to the ADR MultiOption Program. (jmdS, COURT STAFF) (Filed on 11/16/2017) (Entered: 11/16/2017)

ORDER REGARDING AMICUS BRIEFING. Signed by

55

Judge William H. Orrick on 11/20/2017. (jmdS, COURT

STAFF) (Filed on 11/20/2017) (Entered: 11/20/2017)

Minute Entry for proceedings held before Judge William H.

56

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 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.

11/27/2017 11/29/2017 12/01/2017 12/04/2017
12/12/2017 12/13/2017 12/19/2017

(jmdS, COURT STAFF) (Date Filed: 11/21/2017) Matter transcribed by Victoria Valine. (notewarelS, COURT STAFF). (Entered: 11/27/2017)

CIVIL PRETRIAL ORDER. Signed by Judge William H.

57

Orrick on 11/27/2017. (jmdS, COURT STAFF) (Filed on

11/27/2017) (Entered: 11/27/2017)

58 TRANSCRIPT ORDER for proceedings held on 11/21/2017 before Judge William H. Orrick by City and County of San Francisco, for Court Reporter FTR - San Francisco. (McGrath, Aileen) (Filed on 11/29/2017) (Entered: 11/29/2017)

59 STIPULATION WITH PROPOSED ORDER Stipulation and [Proposed] Order to Set Upcoming Deadlines filed by City and County of San Francisco. (McGrath, Aileen) (Filed on 12/1/2017) (Entered: 12/01/2017)

Order to Set Upcoming Deadlines by Judge William H. Orrick

60

granting 59 Stipulation. Close of Fact Discovery: 7/31/2018.

Motion Hearing on any responsive motion to amended

complaint 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)

61 AMENDED COMPLAINT First Amended Complaint for Declaratory and Injunctive Relief against All Defendants. Filed byCity and County of San Francisco. (Attachments: # 1 Exhibit A, # 2 Exhibit B, # 3 Exhibit C, # 4 Exhibit D)(Herrera, Dennis) (Filed on 12/12/2017) (Entered: 12/12/2017)

TRANSCRIPT ORDER for proceedings held on 12/13/2017

62

before Judge William H. Orrick by City and County of San

Francisco, for Court Reporter Katherine Sullivan. (McGrath,

Aileen) (Filed on 12/13/2017) (Entered: 12/13/2017)

63 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, )

01/18/2018 01/19/2018 01/19/2018 02/02/2018 02/02/2018
02/07/2018

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)

STIPULATION WITH PROPOSED ORDER filed by Alan R

64

Hanson, Jefferson Beauregard Sessions, III, United States

Department of Justice. (Simpson, W.) (Filed on 1/18/2018)

(Entered: 01/18/2018)

65 Order by Judge William H. Orrick granting 64

Stipulation to expand page limit restrictions. (jmdS, COURT STAFF) (Filed on 1/19/2018) (Entered: 01/19/2018)

MOTION to Dismiss filed by Alan R Hanson, Jefferson

66

Beauregard Sessions, III, United States Department of Justice.

Motion Hearing set for 2/28/2018 02:00 PM in San Francisco,

Courtroom 02, 17th Floor before Judge William H. Orrick.

Responses due by 2/2/2018. Replies due by 2/9/2018.

(Attachments: # 1 Request for Judicial Notice, # 2 Proposed

Order)(Simpson, W.) (Filed on 1/19/2018) (Entered: 01/19/2018)

67

OPPOSITION/RESPONSE (re 66 MOTION to

Dismiss ) PLAINTIFF CITY AND COUNTY OF SAN

FRANCISCO'S OPPOSITION TO DEFENDANTS' NOTICE OF

MOTION AND MOTION TO DISMISS filed byCity and County of

San Francisco. (Eisenberg, Sara) (Filed on 2/2/2018) (Entered:

02/02/2018)

68

Request for Judicial Notice re 67 Opposition/Response to

Motion, filed byCity and County of San Francisco. (Attachments:

# 1 Exhibit A, # 2 Exhibit B, # 3 Exhibit C, # 4 Exhibit D,

# 5 Exhibit E, # 6 Exhibit F, # 7 Exhibit G, # 8 Exhibit H,

# 9 Exhibit I, # 10 Exhibit J)(Related document(s) 67 ) (Eisenberg, Sara) (Filed on 2/2/2018) (Entered: 02/02/2018)

69 STIPULATION WITH PROPOSED ORDER re 67

Opposition/Response to Motion, filed by Alan R Hanson, Jefferson Beauregard Sessions, III, United States Department of Justice. (Simpson, W.) (Filed on 2/7/2018) (Entered: 02/07/2018)

02/07/2018 02/08/2018
02/14/2018 02/20/2018 02/28/2018 02/28/2018
03/01/2018 03/02/2018

STIPULATION AND ORDER resetting deadline as to 66 70
MOTION to Dismiss. Replies due by 2/14/2018. Hearing remains schedules for 2/28/2018. Signed by Judge William H. Orrick on 02/07/2018. (jmdS, COURT STAFF) (Filed on 2/7/2018) (Entered: 02/07/2018)
71 Clerk's Notice of Video Recording Request. A request has been received for video recording of hearing set for 2/28/2018 02:00 PM. Any Objections to Video Recording are due by 2/15/2018. (This is a text-only entry generated by the court. There is no document associated with this entry.) (jmdS, COURT STAFF) (Filed on 2/8/2018) (jmdS, COURT STAFF). (Entered: 02/08/2018)

72

REPLY (re 66 MOTION to Dismiss ) filed byAlan R Hanson,

Jefferson Beauregard Sessions, III, United States Department of

Justice. (Simpson, W.) (Filed on 2/14/2018) (Entered: 02/14/2018)

Clerk's Notice - Parties CONSENT TO Video Recording; no

73

objections have been received re: 71 Clerk's Notice of Video

Recording Request. (Related documents(s) 71 ) (jmdS, COURT

STAFF) (Filed on 2/20/2018) (Entered: 02/20/2018)

TRANSCRIPT ORDER for proceedings held on 2/28/2018 before

74

Judge William H. Orrick by City and County of San Francisco, for

Court Reporter Lydia Zinn. (McGrath, Aileen) (Filed on

2/28/2018) (Entered: 02/28/2018)

Minute Entry for proceedings held before Judge William H.

76

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)

TRANSCRIPT ORDER for proceedings held on 2/28/2018 before

75

Judge William H. Orrick by State of California, for Court Reporter

Lydia Zinn. (Sherman, Lee) (Filed on 3/1/2018) (Entered:

03/01/2018)

77 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

03/05/2018 03/14/2018 03/15/2018 03/15/2018 03/15/2018

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-04642WHO) 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)

78

ORDER DENYING 66 MOTION TO DISMISS by Judge

William H. Orrick. (jmdS, COURT STAFF) (Filed on

3/5/2018) (Entered: 03/05/2018)

MOTION for Extension of Time to File Answer re 61 Amended

79

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)

80 OPPOSITION/RESPONSE (re 79 MOTION for Extension of Time to File Answer re 61 Amended Complaint, ) Plaintiff City and County of San Francisco's Opposition to Defendants' Motion for Enlargement of Time to Answer Complaints filed byCity and County of San Francisco. (McGrath, Aileen) (Filed on 3/15/2018) (Entered: 03/15/2018)

81 Declaration of Aileen M. McGrath in Support of 80 Opposition/Response to Motion, Declaration of Aileen M. McGrath in Support of City and County of San Francisco's Opposition to Defendants' Motion for Enlargement of Time to Answer Complaints filed byCity and County of San Francisco. (Related document(s) 80 ) (McGrath, Aileen) (Filed on 3/15/2018) (Entered: 03/15/2018)

ORDER GRANTING REQUEST FOR ENLARGEMENT OF

82

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)

03/20/2018 03/23/2018 03/23/2018
03/27/2018 03/29/2018 04/04/2018
05/09/2018

83 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)

NOTICE by Alan R Hanson, Jefferson Beauregard Sessions, III,

84

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)

ORDER REGARDING CASE MANAGEMENT

85

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)

86

STIPULATION WITH PROPOSED ORDER re 85 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)

ORDER REGARDING SCHEDULE by Judge William H.

87

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)

ANSWER to 61 Amended Complaint ; by Alan R Hanson,

88

Jefferson Beauregard Sessions, III, United States Department of

Justice. (Attachments: # 1 ICE Policy Number 10074.2, Issuance

of Immigration Detainers by ICE Immigration Officers,

# 2 Immigration Detainer - Notice of Action, DHS Form I-247A,

# 3 ICE Guidance for Completing Form I-247A, # 4 DHS Warrant

for Arrest of Alien, Form I-200, # 5 Warrant of

Removal/Deportation, ICE Form I-205 (8/07))(Simpson, W.)

(Filed on 4/4/2018) Modified on 4/5/2018 (aaaS, COURT

STAFF). (Entered: 04/04/2018)

STIPULATION WITH PROPOSED ORDER (Protective and

89

502(d) Order) filed by Alan R Hanson, Jefferson Beauregard

05/14/2018 90
05/14/2018 91
05/22/2018 92
05/25/2018 93
06/19/2018 94
06/21/2018 95
06/22/2018 96
07/02/2018 97

Sessions, III, United States Department of Justice. (Simpson, W.) (Filed on 5/9/2018) (Entered: 05/09/2018)
NOTICE of Appearance by Daniel D. Mauler (Mauler, Daniel) (Filed on 5/14/2018) (Entered: 05/14/2018)
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)
STIPULATION WITH PROPOSED ORDER Stipulation and [Proposed] Order to Modify Upcoming Discovery and Briefing Deadlines filed by City and County of San Francisco. (Mere, Yvonne) (Filed on 5/22/2018) (Entered: 05/22/2018)
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)
NOTICE of Change of Address by W. Scott Simpson (Simpson, W.) (Filed on 6/19/2018) (Entered: 06/19/2018)
STIPULATION WITH PROPOSED ORDER Stipulation and [Proposed] Order to Modify Deadline to Raise Discovery Disputes Related to Defendants' Supplemental Document Production filed by City and County of San Francisco. (McGrath, Aileen) (Filed on 6/21/2018) (Entered: 06/21/2018)
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-cv04642-WHO. Associated Cases: 3:17-cv-04642-WHO, 3:17-cv04701-WHO. (jmdS, COURT STAFF) (Filed on 6/22/2018) (Entered: 06/22/2018)
STIPULATION WITH PROPOSED ORDER Stipulation and [Proposed] Order To Enlarge Page Limits For Cross-Motions for Summary Judgment filed by City and County of San Francisco. (McGrath, Aileen) (Filed on 7/2/2018) (Entered: 07/02/2018)

07/03/2018 98
07/11/2018 99
07/11/2018 100
07/11/2018 101
07/11/2018 102
07/11/2018 103

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)
MOTION for Summary Judgment City and County of San Francisco's Notice of Motion and Motion for Summary Judgment filed by City and County of San Francisco. 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 8/1/2018. Replies due by 8/15/2018. (McGrath, Aileen) (Filed on 7/11/2018) (Entered: 07/11/2018)
Declaration of Hector Sainez in Support of 99 MOTION for Summary Judgment City and County of San Francisco's Notice of Motion and Motion for Summary Judgment Declaration of Assistant Chief Hector Sainez in Support of City and County of San Francisco's Motion for Summary Judgment filed byCity and County of San Francisco. (Attachments: # 1 Exhibit A, # 2 Exhibit B, # 3 Exhibit C, # 4 Exhibit D, # 5 Exhibit E, # 6 Exhibit
F)(Related document(s) 99 ) (McGrath, Aileen) (Filed on 7/11/2018) (Entered: 07/11/2018)
Declaration of Karen Fletcher in Support of 99 MOTION for Summary Judgment City and County of San Francisco's Notice of Motion and Motion for Summary Judgment Declaration of Karen Fletcher in Support of City and County of San Francisco's Motion for Summary Judgment filed byCity and County of San Francisco. (Attachments: # 1 Exhibit A, # 2 Exhibit B)(Related
document(s) 99 ) (McGrath, Aileen) (Filed on 7/11/2018) (Entered: 07/11/2018)
Declaration of Vicki Hennessy Declaration of Vicki Hennessy in Support of City and County of San Francisco's Motion for Summary Judgment filed byCity and County of San Francisco. (Attachments: # 1 Exhibit A, # 2 Exhibit B, # 3 Exhibit C, # 4 Exhibit D)(McGrath, Aileen) (Filed on 7/11/2018) (Entered: 07/11/2018)
Declaration of Jeffrey Adachi in Support of 99 MOTION for Summary Judgment City and County of San Francisco's Notice of Motion and Motion for Summary Judgment Declaration of Jeffrey Adachi in Support of City and County of San Francisco's Motion

for Summary Judgment filed byCity and County of San Francisco.

(Related document(s) 99 ) (McGrath, Aileen) (Filed on 7/11/2018) (Entered: 07/11/2018)

07/11/2018 104

Declaration of Cristine DeBerry in Support of 99 MOTION for Summary Judgment City and County of San Francisco's Notice of Motion and Motion for Summary Judgment Declaration of Cristine DeBerry in Support of City and County of San Francisco's Motion for Summary Judgment filed byCity and County of San

Francisco. (Related document(s) 99 ) (McGrath, Aileen) (Filed on 7/11/2018) (Entered: 07/11/2018)

07/11/2018

105 Declaration of Leo Chyi in Support of 99 MOTION for Summary Judgment City and County of San Francisco's Notice of Motion and Motion for Summary Judgment Declaration of Leo Chyi in Support of City and County of San Francisco's Motion for Summary Judgment filed byCity and County of San Francisco.

(Attachments: # 1 Exhibit A)(Related document(s) 99 ) (McGrath, Aileen) (Filed on 7/11/2018) (Entered: 07/11/2018)

07/11/2018

106 Declaration of Mollie M. Lee in Support of 99 MOTION for Summary Judgment City and County of San Francisco's Notice of Motion and Motion for Summary Judgment Declaration of Mollie M. Lee in Support of City and County of San Francisco's Motion for Summary Judgment filed byCity and County of San Francisco. (Attachments: # 1 Exhibit A, # 2 Exhibit B, # 3 Exhibit C, # 4 Exhibit D, # 5 Exhibit E, # 6 Exhibit F, # 7 Exhibit G, # 8 Exhibit H, # 9 ***STRICKEN BY 145

ORDER***Exhibit I, # 10 ***STRICKEN BY 145

ORDER*** Exhibit J, # 11 Exhibit K, # 12 Exhibit L, # 13 Exhibit M, # 14 Exhibit N, # 15 Exhibit O)(Related

document(s) 99 ) (McGrath, Aileen) (Filed on 7/11/2018) Modified on 10/17/2018 (jmdS, COURT STAFF). (Entered: 07/11/2018)

07/11/2018

107 Request for Judicial Notice re 99 MOTION for Summary
Judgment City and County of San Francisco's Notice of Motion

and Motion for Summary Judgment Request for Judicial Notice in Support of Plaintiff City and County of San Francisco's Motion for Summary Judgment filed byCity and County of San Francisco. (Attachments: # 1 Exhibit A, # 2 Exhibit B, # 3 Exhibit C, # 4 Exhibit D, # 5 Exhibit E, # 6 Exhibit F, # 7 Exhibit G)(Related

document(s) 99 ) (McGrath, Aileen) (Filed on 7/11/2018) (Entered: 07/11/2018)

07/11/2018 108

Proposed Order re 99 MOTION for Summary Judgment City and County of San Francisco's Notice of Motion and Motion for Summary Judgment [Proposed] Order Granting Plaintiff City and County of San Francisco's Motion for Summary Judgment by City and County of San Francisco. (McGrath, Aileen) (Filed on 7/11/2018) (Entered: 07/11/2018)

07/20/2018 109

ADMINISTRATIVE MOTION to Strike Certain Exhibits re 106 Declaration in Support,, 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)

07/23/2018 110

Statement Plaintiff's Statement of Non-Opposition to Defendants' Administrative Motion to Strike Certain Exhibits from Plaintiff's Summary Judgment Motion by City and County of San Francisco. (Eisenberg, Sara) (Filed on 7/23/2018) (Entered: 07/23/2018)

07/27/2018

111 Consent Administrative Motion to File Under Seal filed by Alan R Hanson, Jefferson Beauregard Sessions, III, United States Department of Justice. (Attachments: # 1 Declaration, # 2 Proposed Order, # 3 Unredacted Version of Document to be Sealed)(Mauler, Daniel) (Filed on 7/27/2018) (Entered: 07/27/2018)

07/31/2018 112

Declaration of Aileen M. McGrath Declaration Of Aileen M. McGrath Related To The Unopposed 111 Administrative Motion To File A Document Under Seal; filed by City and County of San Francisco. (McGrath, Aileen) (Filed on 7/31/2018) Modified on 8/1/2018 (aaaS, COURT STAFF). (Entered: 07/31/2018)

08/01/2018 113

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 8/15/2018. Replies due by 8/22/2018.

(Attachments: # 1 Declaration of Francisco Madrigal, # 2 Amended Declaration of Thomas D. Homan, # 3 Declaration of Marilynn B. Atsatt, # 4 Declaration of W. Scott Simpson)(Simpson, W.) (Filed on 8/1/2018) (Entered: 08/01/2018)

08/01/2018 114

OPPOSITION/RESPONSE (re 99 MOTION for Summary Judgment City and County of San Francisco's Notice of Motion and Motion for Summary Judgment ) filed byAlan R Hanson, Jefferson Beauregard Sessions, III, United States Department of Justice. (Attachments: # 1 Declaration of Francisco Madrigal, # 2 Amended Declaration of Thomas D. Homan, # 3 Declaration of Marilynn B. Atsatt, # 4 Declaration of W. Scott Simpson)(Simpson, W.) (Filed on 8/1/2018) (Entered: 08/01/2018)

08/01/2018 115

Request for Judicial Notice re 114 Opposition/Response to

Motion, 113 MOTION for Summary Judgment filed byAlan R Hanson, Jefferson Beauregard Sessions, III, United States

Department of Justice. (Related document(s) 114 , 113 ) (Simpson, W.) (Filed on 8/1/2018) (Entered: 08/01/2018)

08/13/2018 116

MOTION for Extension of Time to File Response/Reply as to 114
Opposition/Response to Motion, 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)

08/13/2018 117

Order by Judge William H. Orrick granting (116) Motion for Extension of Time to File Reply re (113 in 3:17-cv-04642WHO) continuing deadline to file reply to Motions for Summary Judgment by 8/22/2018. Associated Cases: 3:17-cv04642-WHO, 3:17-cv-04701-WHO. (jmdS, COURT STAFF) (Filed on 8/13/2018) (Entered: 08/13/2018)

08/14/2018

118 NOTICE by City and County of San Francisco OF DISASSOCIATION OF CHRISTINE VAN AKEN AS COUNSEL FOR CITY AND COUNTY OF SAN FRANCISCO (Steeley, Tara) (Filed on 8/14/2018) (Entered: 08/14/2018)

08/15/2018 119

REPLY (re 99 MOTION for Summary Judgment City and County of San Francisco's Notice of Motion and Motion for

08/15/2018 120
08/15/2018 121
08/15/2018 122
08/15/2018 123

Summary Judgment, 113 MOTION for Summary Judgment ) Plaintiff CIty and County of San Francisco's Opposition to Defendants' Motion for Summary Judgment and Reply to Defendants' Opposition to Motion for Summary Judgment filed byCity and County of San Francisco. (Eisenberg, Sara) (Filed on 8/15/2018) (Entered: 08/15/2018)
Declaration of Adrienne Pon in Support of 119 Reply to Opposition/Response, Declaration of Adrienne Pon in Support of Plaintiff City and County of San Francisco's Opposition to Defendants' Motion for Summary Judgment and Reply to Defendants' Opposition to Motion for Summary Judgment filed byCity and County of San Francisco. (Related document(s) 119
) (Eisenberg, Sara) (Filed on 8/15/2018) (Entered: 08/15/2018)
Declaration of Sheryl Evans Davis in Support of 119 Reply to Opposition/Response, Declaration of Sheryl Evans Davis in Support of Plaintiff City and County of San Francisco's Opposition to Defendants' Motion for Summary Judgment and Reply to Defendants' Opposition to Motion for Summary Judgment filed byCity and County of San Francisco. (Related
document(s) 119 ) (Eisenberg, Sara) (Filed on 8/15/2018) (Entered: 08/15/2018)
Declaration of Sara J. Eisenberg in Support of 119 Reply to Opposition/Response, Declaration of Sara J. Eisenberg in Support of Plaintiff City and County of San Francisco's Opposition to Defendants' Motion for Summary Judgment and Reply to Defendants' Opposition to Motion for Summary Judgment filed byCity and County of San Francisco. (Related document(s) 119
) (Eisenberg, Sara) (Filed on 8/15/2018) (Entered: 08/15/2018)
Declaration of Matthew Jerzyk in Support of 119 Reply to Opposition/Response, Declaration of Matthew Jerzyk in Support of Plaintiff City and County of San Francisco's Opposition to Defendants' Motion for Summary Judgment and Reply to Defendants' Opposition to Motion for Summary Judgment filed

byCity and County of San Francisco. (Related document(s) 119

) (Eisenberg, Sara) (Filed on 8/15/2018) (Entered: 08/15/2018)

08/15/2018 124

Declaration of Marc P. Hansen in Support of 119 Reply to Opposition/Response, Declaration of Marc P. Hansen in Support of Plaintiff City and County of San Francisco's Opposition to Defendants' Motion for Summary Judgment and Reply to Defendants' Opposition to Motion for Summary Judgment filed byCity and County of San Francisco. (Related document(s) 119

) (Eisenberg, Sara) (Filed on 8/15/2018) (Entered: 08/15/2018)

08/15/2018

125 Declaration of Francis X. Wright, Jr. in Support of 119 Reply to Opposition/Response, Declaration of Francis X. Wright, Jr, in Support of Plaintiff City and County of San Francisco's Opposition to Defendants' Motion for Summary Judgment and Reply to Defendants' Opposition to Motion for Summary Judgment filed byCity and County of San Francisco. (Related

document(s) 119 ) (Eisenberg, Sara) (Filed on 8/15/2018) (Entered: 08/15/2018)

08/15/2018

126 Declaration of Kenny F. PIttman in Support of 119 Reply to Opposition/Response, Declaration of Kenny F. Pittman in Support of Plaintiff City and County of San Francisco's Opposition to Defendants' Motion for Summary Judgment and Reply to Defendants' Opposition to Motion for Summary Judgment filed byCity and County of San Francisco. (Related document(s) 119

) (Eisenberg, Sara) (Filed on 8/15/2018) (Entered: 08/15/2018)

08/15/2018

127 Declaration of Gerald Maestas in Support of 119 Reply to Opposition/Response, Declaration of Gerald Maestas in Support of Plaintiff City and County of San Francisco's Opposition to Defendants' Motion for Summary Judgment and Reply to Defendants' Opposition to Motion for Summary Judgment filed byCity and County of San Francisco. (Related document(s) 119

) (Eisenberg, Sara) (Filed on 8/15/2018) (Entered: 08/15/2018)

08/15/2018

128 ADMINISTRATIVE MOTION To Exclude Evidence Plaintiff City and County of San Francisco's Administrative Motion to Exclude Evidence Pursuant to Federal Rule of Civil Procedure 37(C)(1) filed by City and County of San Francisco. Responses due by 8/20/2018. (Mere, Yvonne) (Filed on 8/15/2018) (Entered: 08/15/2018)

08/15/2018

129 Declaration of Yvonne R. Mere in Support of 128 ADMINISTRATIVE MOTION To Exclude Evidence Plaintiff City and County of San Francisco's Administrative Motion to Exclude Evidence Pursuant to Federal Rule of Civil Procedure 37(C)(1) Declaration of Yvonne R. Mere in Support of Plaintiff City and County of San Francisco's Administrative Motion to Exclude Evidence Pursuant to Federal Rule of Civil Procedure 37(C)(1) filed byCity and County of San Francisco. (Related document(s) 128 ) (Mere, Yvonne) (Filed on 8/15/2018) (Entered: 08/15/2018)

08/15/2018

130 Proposed Order re 128 ADMINISTRATIVE MOTION To Exclude Evidence Plaintiff City and County of San Francisco's Administrative Motion to Exclude Evidence Pursuant to Federal Rule of Civil Procedure 37(C)(1) [Proposed] Order Granting Plaintiff City and County of San Francisco's Administrative Motion to Exclude Evidence Pursuant to Federal Rule of Civil Procedure 37(c)1) by City and County of San Francisco. (Mere, Yvonne) (Filed on 8/15/2018) (Entered: 08/15/2018)

08/16/2018 131

OPPOSITION/RESPONSE (re 128 ADMINISTRATIVE MOTION To Exclude Evidence Plaintiff City and County of San Francisco's Administrative Motion to Exclude Evidence Pursuant to Federal Rule of Civil Procedure 37(C)(1) ) filed byLaura L. Rogers, Jefferson Beauregard Sessions, III, United States Department of Justice. (Attachments: # 1 Proposed Order)(Simpson, W.) (Filed on 8/16/2018) (Entered: 08/16/2018)

08/16/2018 132

REPLY (re 128 ADMINISTRATIVE MOTION To Exclude Evidence Plaintiff City and County of San Francisco's Administrative Motion to Exclude Evidence Pursuant to Federal Rule of Civil Procedure 37(C)(1) ) Plaintiff City and County of San Francisco's Reply to Defendants' Opposition to Plaintiff's Administrative Motion to Exclude Evidence Pursuant to Federal Rule of Civil Procedure 37(C)(1) filed byCity and County of San

Francisco. (Mere, Yvonne) (Filed on 8/16/2018) (Entered: 08/16/2018)

08/22/2018 133

Consent ADMINISTRATIVE MOTION Leave To File Amici Curiae Brief of Members of Congress filed by Kamala D. Harris, Richard Blumenthal, Cory A. 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)

08/22/2018 134

REPLY (re 113 MOTION for Summary Judgment ) filed byLaura L. Rogers, Jefferson Beauregard Sessions, III, United States Department of Justice. (Simpson, W.) (Filed on 8/22/2018) (Entered: 08/22/2018)

08/22/2018

135 MOTION for Leave to File Brief of Amici Curiae filed by American Civil Liberties Union Foundation, American Civil Liberties Union Foundation of California, Northwest Immigrant Rights Project, National Immigrant Justice Center, National Immigration Law Center, Immigrant Legal Resource Center, Washington Defender Association. (Attachments: # 1 Exhibit Proposed Brief of Amici Curiae, # 2 Proposed Order)(Amdur, Spencer) (Filed on 8/22/2018) (Entered: 08/22/2018)

08/22/2018

136 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)

08/22/2018

137 MOTION for Leave to File Brief of Amici Curiae in Support of Plaintiff City and County of San Francisco's Motion for Summary Judgment filed by County of Santa Clara. (Attachments: # 1 Exhibit, # 2 Proposed Order)(Narayan, Kavita) (Filed on 8/22/2018) (Entered: 08/22/2018)

08/22/2018

138 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)

08/27/2018 139

NOTICE by City and County of San Francisco Notice of Disassociation of Counsel (Eisenberg, Sara) (Filed on 8/27/2018) (Entered: 08/27/2018)

09/05/2018 142

Minute Entry for proceedings held before Judge William H. Orrick: Motion Hearing held on 9/5/2018 regarding motions for summary judgment. Motions 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)

09/06/2018

140 TRANSCRIPT ORDER for proceedings held on 09/05/2018 before Judge William H. Orrick by City and County of San Francisco, for Court Reporter Debra Pas. (Eisenberg, Sara) (Filed on 9/6/2018) (Entered: 09/06/2018)

09/07/2018 141

TRANSCRIPT ORDER for proceedings held on 9/5/2018 before Judge William H. Orrick by Laura L. Rogers, Jefferson Beauregard Sessions, III, United States Department of Justice, for Court Reporter Debra Pas. (Simpson, W.) (Filed on 9/7/2018) (Entered: 09/07/2018)

09/10/2018 143

RELATED CASE ORDER by Judge William H. Orrick granting (216) Administrative Motion in case 3:17-cv-00485WHO (Associated Cases: 3:17-cv-00485-WHO, 3:17-cv-04642WHO, 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)

09/14/2018

144 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. 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. Release

10/05/2018 145
10/05/2018 146
12/03/2018 147
12/07/2018 148
07/13/2020 149
07/20/2020 150
09/04/2020 151

of Transcript Restriction set for 12/13/2018. (Pas, Debra) (Filed on 9/14/2018) (Entered: 09/14/2018)
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)
JUDGMENT. Signed by Judge William H. Orrick on 10/05/2018. (jmdS, COURT STAFF) (Filed on 10/5/2018) (Entered: 10/05/2018)
NOTICE OF APPEAL to the 9th Circuit Court of Appeals filed by United States Department of Justice, Matt M. Dummermuth, Matthew G. Whitaker. Appeal of Judgment, Terminated Case 146
(Appeal fee FEE WAIVED.) (Simpson, W.) (Filed on 12/3/2018) (Additional attachment(s) added on 12/7/2018: # 1 USCA NUMBER 18-17308) (aaaS, COURT STAFF). (Entered: 12/03/2018)
USCA Case Number 18-17308 for 147 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)
USCA Opinion as to 147 Notice of Appeal filed by United States Department of Justice, Matt M. Dummermuth, Mathew Whitaker; Affirmed in part; Vacated in part. (slhS, COURT STAFF) (Filed on 7/13/2020) (Entered: 07/13/2020)
USCA Opinion as to 147 Notice of Appeal, filed by United States Department of Justice, Matt M. Dummermuth, Mathew Whitaker; AFFIRMED in part; VACATED in part. (slhS, COURT STAFF) (Filed on 7/20/2020) (Entered: 07/20/2020)
MANDATE of USCA as to 147 Notice of Appeal filed by United States Department of Justice, Matt M. Dummermuth, Mathew Whitaker (slhS, COURT STAFF) (Filed on 9/4/2020) (Entered: 09/04/2020)

11/18/2020 152

U.S. Supreme Court Notice that the petition for a writ of certiorari was filed and placed on the docket No. 20-666 as to 147
Notice of Appeal filed by United States Department of Justice, Matt M. Dummermuth, Mathew Whitaker; (slhS, COURT STAFF) (Filed on 11/18/2020) (Entered: 11/18/2020)

PACER Service Center Transaction Receipt

02/20/2021 10:27:56

PACER Login:

CRClearinghouse:2563377:0

Client Code:

Description: Docket Report

Search Criteria:

Billable Pages:

23

Cost:

Kempa
3:17-cv04642-WHO
2.30

 
 Case 4:17-cv-04642-SBA Document 1 Filed 08/11/17 Page 1 of 25

1 DENNIS J. HERRERA, State Bar #139669

City Attorney

2 JESSE C. SMITH, State Bar #122517

Chief Assistant City Attorney

3 RONALD P. FLYNN, State Bar #184186

Chief Deputy City Attorney

4 YVONNE R. MERÉ, State Bar #173594

Chief of Complex and Affirmative Litigation

5 CHRISTINE VAN AKEN, State Bar #241755

TARA M. STEELEY, State Bar #231775

6 MOLLIE M. LEE, State Bar #251404

AILEEN M. McGRATH, State Bar #280846

7 Deputy City Attorneys

City Hall, Room 234

8 1 Dr. Carlton B. Goodlett Place

San Francisco, California 94102-4602

9 Telephone: (415) 554-4748

Facsimile: (415) 554-4715

10 E-Mail:

brittany.feitelberg@sfgov.org

11 Attorneys for Plaintiff CITY AND COUNTY OF SAN FRANCISCO
12

13

14

UNITED STATES DISTRICT COURT

15

NORTHERN DISTRICT OF CALIFORNIA

16 CITY AND COUNTY OF SAN

Case No. 17-4642

FRANCISCO,

17

COMPLAINT FOR DECLARATORY AND

Plaintiff,

INJUNCTIVE RELIEF

18

vs.

19

JEFFERSON B. SESSIONS III, Attorney

20 General of the United States, ALAN R.

HANSON, Acting Assist. Attorney General of

21 the United States, UNITED STATES

DEPARTMENT OF JUSTICE, DOES 1-100,

22

Defendants.

23

24

25

26

27

28

CCSF v. Jefferson B. Sessions III, et al; Case No.

N:\CXLIT\LI2017\180160\01212897.docx

Case 4:17-cv-04642-SBA Document 1 Filed 08/11/17 Page 2 of 25

1

INTRODUCTION

2

1. The Attorney General of the United States seeks to impose two unauthorized and

3 unlawful conditions on the Edward Byrne Memorial Justice Assistance Grant Program (“Byrne JAG”).

4 These conditions do not appear in any federal statute, and they do not reflect the will of Congress in

5 appropriating funds for the Byrne JAG program. To the contrary, the new conditions are simply the

6 latest attempt by the Trump Administration to coerce state and local jurisdictions into carrying out the

7 federal government’s immigration enforcement priorities. The City and County of San Francisco (“the

8 City” or “San Francisco”) seeks declaratory relief and an injunction prohibiting the Attorney General

9 and the other Defendants from implementing or enforcing these new funding conditions.

10

2. Like many cities, San Francisco has a vibrant immigrant community, many members of

11 which are undocumented. San Francisco has long endeavored to foster cooperation and trust between

12 its immigrant community and city employees and agencies by lawfully limiting when city employees

13 and agencies may assist with the enforcement of federal immigration laws. San Francisco’s laws

14 generally prohibit city employees from using city funds or resources to assist in enforcing federal

15 immigration law, unless required by federal or state law. They specifically prohibit local law

16 enforcement officers from cooperating with Immigration and Customs Enforcement (“ICE”) detainer

17 requests—which are voluntary—and limit when local law enforcement officers may give the federal

18 government advance notice of a person’s release from jail.

19

3. San Francisco enacted these Sanctuary City laws based on robust evidence showing

20 that San Francisco is a safer, healthier, and stronger city when its officials do not enforce federal

21 immigration laws. San Francisco is safer when all people, including undocumented immigrants, feel

22 safe reporting crimes to authorities. San Francisco is healthier when all residents, including

23 undocumented immigrants, access public health programs. San Francisco is economically and socially

24 stronger when all children, including undocumented immigrants, attend school. And San Francisco

25 communities are strengthened when members of the public, including undocumented immigrants, can

26 use public transit, visit libraries, or take their children to the playground without fear. For these

27 reasons, among others, San Francisco has made the considered judgment not to comply with voluntary

28

CCSF v. Jefferson B. Sessions III, et al; Case No.

1

N:\CXLIT\LI2017\180160\01212897.docx

Case 4:17-cv-04642-SBA Document 1 Filed 08/11/17 Page 3 of 25

1 detainer requests, not to allow federal immigration authorities unlimited access to jails, and not to

2 provide federal officials with information about a person’s release date and time from local custody.

3

4. But San Francisco, and other jurisdictions, have found themselves targeted by Attorney

4 General Sessions and other members of President Donald Trump’s administration, who make no secret

5 of their intent to undo these considered policy choices. The Attorney General has repeatedly

6 condemned “sanctuary cities” that “refus[e] to detain known felons under federal detainer requests” or 7 otherwise refuse to use local resources to carry out demands from federal immigration authorities.1

8 Similarly, the acting Director of ICE told Congress in June that the federal government expects local 9 governments “[to] allow us access to the jails.”2 Likewise, President Trump has criticized “[s]anctuary

10 cities, like San Francisco, [that] block their jails from turning over criminal aliens to Federal

11 authorities for deportation.”3

12

5. Since taking office, the President, directly and through his Administration, has tried

13 various tactics to require local jurisdictions to carry out detainer requests and allow ICE unlimited

14 direct access to individuals held in local custody. The Attorney General has tried to publicly shame 15 sanctuary jurisdictions by falsely claiming that the vast majority of the public oppose these policies.4

16 The Attorney General has sent letters to several jurisdictions with sanctuary policies, threatening to

17 withdraw federal funding from them if they did not certify that their laws complied with federal

18 requirements.5 And most notably, the President issued Executive Order 13,768, targeting sanctuary

19

1 Press Release, U.S. Dep’t of Justice, Attorney General Jeff Sessions Delivers Remarks on 20 Sanctuary Jurisdictions (Mar. 27, 2017), https://www.justice.gov/opa/speech/attorney-general-jeff-

sessions-delivers-remarks-sanctuary-jurisdictions (“March 27 Sessions remarks”).

21

2 H. Approps. Comm. Hr’g Tr., Fed. News Serv. Transcripts, 2017 WLNR 18737622 (June 13,

22 2017) (testimony of Acting ICE Director Thomas Homan).

3 Press Release, White House Office of the Press Secretary, Statement on Sanctuary Cities 23 Ruling (Apr. 25, 2017), https://www.whitehouse.gov/the-press-office/2017/04/25/statement-sanctuary-

cities-ruling.

24

4 March 27 Sessions remarks (claiming that “80 percent of Americans believe that cities that

25 arrest illegal immigrants for crimes should be required to turn them over to immigration authorities”); Michelle Ye Hee Lee, Do 80 Percent of Americans Oppose Sanctuary Cities?, Washington Post (Mar.

26 28, 2017) (showing that a majority of the public opposes cutting federal funding to cities with sanctuary laws).

27

5 Press Release, U.S. Dep’t of Justice, Department of Justice Sends Letter to Nine Jurisdictions

Requiring Proof of Compliance with 8 U.S.C. § 1373 (Apr. 21, 2017), 28

CCSF v. Jefferson B. Sessions III, et al; Case No.

2

N:\CXLIT\LI2017\180160\01212897.docx

Case 4:17-cv-04642-SBA Document 1 Filed 08/11/17 Page 4 of 25

1 cities and commanding federal agencies to withhold federal funding from these cities unless they

2 changed their policies to begin enforcing federal immigration law. Exec. Order No. 13,768, 82 Fed.

3 Reg. 8799 at 8799 (Jan. 25, 2017) (“Executive Order”). The order was enjoined by a federal court for

4 violating numerous constitutional provisions. City and County of San Francisco v. Donald J. Trump, --

5 - F. Supp. 3d ---, No. 3:17-cv-00485-WHO, 2017 WL 1459081, at *21-*29 (N.D. Cal., Apr. 25, 2017)

6 (“San Francisco v. Trump”).

7

6. In the Administration’s most recent effort to end sanctuary policies, the Office of

8 Justice Programs (“OJP”)—a Department of Justice (“DOJ”) agency that oversees the administration

9 of the Byrne JAG program—announced on July 25, 2017, that the FY 2017 Byrne JAG application

10 would impose two new conditions on funding recipients. These conditions require San Francisco to (1)

11 provide federal immigration officials access to local detention facilities to interrogate any suspected

12 aliens held there (“Access Requirement”); and (2) provide the Department of Homeland Security

13 (“DHS”) with 48 hours’ notice before releasing an individual, where the federal government has

14 requested notice in order to take that individual into custody for immigration reasons (“Notice

15 Requirement”) (together, the “Notice and Access Requirements”).

16

7. In practice, the Notice and Access Requirements could require San Francisco officials

17 to unlawfully hold inmates longer than they otherwise would to ensure that DHS receives the required

18 48 hours of advance notice. And they would compel San Francisco to abandon its longstanding laws

19 and policies that deny federal immigration officials freewheeling access to local detention facilities.

20

8. The Notice and Access Requirements violate the United States Constitution, and are

21 contrary to other laws. The Constitution establishes a balance of power between the state and federal

22 governments, as well as among the coordinate branches of federal government, to prevent the

23 excessive accumulation of power in any single entity and reduce the risk of tyranny and abuse from

24 any government office. An executive branch agency of the federal government may not seize for itself

25 the power that the Constitution reserves for Congress. Nor may it intrude on authority that the

26 Constitution has preserved for state and local governments. Yet the Notice and Access Requirements

27 https://www.justice.gov/opa/pr/department-justice-sends-letter-nine-jurisdictions-requiring-proof-
28 compliance-8-usc-1373.

CCSF v. Jefferson B. Sessions III, et al; Case No.

3

N:\CXLIT\LI2017\180160\01212897.docx

Case 4:17-cv-04642-SBA Document 1 Filed 08/11/17 Page 5 of 25

1 violate both of these precepts. DOJ is improperly attempting to wield powers that only Congress may

2 be entitled to invoke, and is seeking to compel San Francisco to bend its considered policy judgments

3 to the federal government’s will.

4

9. San Francisco faces the immediate prospect of losing over $1.4 million in this fiscal

5 year if it does not receive FY 2017 Byrne JAG funds. San Francisco uses these funds for a variety of

6 important law enforcement purposes, including a pioneering Young Adult Court program that works

7 to prevent at-risk youth from entering a “lifelong entanglement with the criminal justice system,”6 and

8 to fund other initiatives designed to reduce recidivism, deter drug use, provide services to at-risk

9 youth, and supervise probationers with substance abuse and/or mental health issues.

10

10. San Francisco faces an unacceptable choice: either comply with DOJ’s unconstitutional

11 new grant conditions and abandon local policies that San Francisco has found to promote public safety

12 and foster trust and cooperation between law enforcement and the public; or, maintain these policies

13 but forfeit critical funds that it relies on to provide essential services to San Francisco residents.

14

11. San Francisco accordingly seeks declaratory and injunctive relief to ensure that

15 San Francisco and other sanctuary jurisdictions continue to be eligible for these funds—which serve a

16 critical public safety purpose—instead of being coerced into enforcing federal immigration law.

17

JURISDICTION AND VENUE

18

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

19 further remedial authority under the Declaratory Judgment Act, 28 U.S.C. Sections 2201 and 2202 et

20 seq.

21

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

22 San Francisco, resides in this judicial district and a substantial part of the events or omissions giving

23 rise to this action occurred in this District. 28 U.S.C. §1391(e).

24 //

25 //

26

27

6 Tim Requarth, A California Court for Young Adults Calls on Science, N.Y. Times,

Apr. 17, 2017, https://www.nytimes.com/2017/04/17/health/young-adult-court-san-francisco-

28 california-neuroscience.html.

CCSF v. Jefferson B. Sessions III, et al; Case No.

4

N:\CXLIT\LI2017\180160\01212897.docx

Case 4:17-cv-04642-SBA Document 1 Filed 08/11/17 Page 6 of 25

1

PARTIES

2

14. Plaintiff San Francisco is a municipal corporation organized and existing under and by

3 virtue of the laws of the State of California, and is a charter city and county.

4

15. Defendant Jefferson B. Sessions is the Attorney General of the United States. He is

5 sued in his official capacity. The Attorney General is the federal official leading the DOJ, which is

6 responsible for the governmental actions at issue in this lawsuit.

7

16. Defendant Alan R. Hanson is Acting Assistant Attorney General of the United States in

8 charge of OJP, which administers JAG funding. He is sued in his official capacity.

9

17. Defendant DOJ is an executive department of the United States of America that is

10 responsible for administering the Byrne JAG program.

11

18. Doe 1 through Doe 100 are sued under fictitious names. Plaintiff San Francisco does

12 not now know the true names or capacities of said Defendants, who were responsible for the alleged

13 violations alleged, but pray that the same may be alleged in this complaint when ascertained.

14 15 16 I.

FACTUAL ALLEGATIONS San Francisco’s Sanctuary City Laws and Policies

17

19. San Francisco has been a Sanctuary City since 1989, when it first enacted ordinances

18 (“Sanctuary City Laws”) to protect Central American refugees who were escaping violent civil wars in

19 their home countries and seeking legal protections in the United States. Since then, San Francisco’s

20 Sanctuary City Laws, codified in Chapters 12H and 12I of the San Francisco Administrative Code,

21 have been amended to reflect San Francisco’s broad commitment and responsibility to ensure public

22 safety and welfare. San Francisco departments and agencies have adopted and implemented policies

23 consistent with Chapters 12H and 12I.

24

20. As set forth in the legislative findings to Chapter 12I:

25

Fostering a relationship of trust, respect, and open communication between City employees and City residents is essential to the City’s core mission of ensuring

26

public health, safety, and welfare, and serving the needs of everyone in the community, including immigrants. The purpose of this Chapter 12I, as well as

27

of Administrative Code Chapter 12H, is to foster respect and trust between law enforcement and residents, to protect limited local resources, to encourage

28

cooperation between residents and City officials, including especially law

CCSF v. Jefferson B. Sessions III, et al; Case No.

5

N:\CXLIT\LI2017\180160\01212897.docx

Case 4:17-cv-04642-SBA Document 1 Filed 08/11/17 Page 7 of 25

1

enforcement and public health officers and employees, and to ensure

community security, and due process for all. (S.F. Admin. Code § 12I.1.)

2

3

21. San Francisco’s Sanctuary City Laws and policies prohibit local agencies from either

4 (1) “provid[ing] at least 48 hours’ advance notice to DHS regarding the scheduled release date and

5 time of an alien in the jurisdiction’s custody when DHS requests such notice in order to take custody

6 of the alien pursuant to the Immigration and Nationality Act,” or (2) “permit[ting] personnel of the

7 [DHS] to access any correctional or detention facility in order to meet with an alien (or an individual

8 believed to be an alien) and inquire as to his or her right to be or remain in the United States,” as

9 required by the Notice and Access Requirements. Byrne JAG FY 2017 State Solicitation (attached

10 hereto as Exhibit A) (“State Solicitation”); Byrne JAG FY 2017 Local Solicitation, which was made

11 available for applicants on August 3, 2017 (attached hereto as Exhibit B) (“Local Solicitation”).

12

22. Specifically, San Francisco Administrative Code Chapter 12H prohibits San Francisco

13 departments, agencies, commissions, officers, and employees from using San Francisco funds or

14 resources to assist in the enforcement of federal immigration law or to gather or disseminate

15 information regarding the release status, or other confidential identifying information, of an individual

16 unless such assistance is required by federal or state law.

17

23. Similarly, San Francisco Administrative Code Chapter 12I prohibits San Francisco law

18 enforcement officials from detaining an individual who is otherwise eligible for release from custody

19 on the basis of a civil immigration detainer request issued by the federal government. A detainer

20 request is distinct from a criminal warrant, which San Francisco honors consistent with its Sanctuary

21 City Laws. A detainer request is not issued by a judge based on a finding of probable cause. It is

22 simply a request by ICE that a state or local law enforcement agency hold individuals after their

23 release date to provide ICE agents extra time to decide whether to take those individuals into federal

24 custody and then deport them.

25

24. Chapter 12I also prohibits San Francisco law enforcement officials from responding to

26 a federal immigration officer’s request for advance notification of the date and time an individual in

27 San Francisco’s custody is being released, unless the individual in question meets certain criteria. It

28 also prohibits San Francisco law enforcement officials from arresting, detaining, or providing any

CCSF v. Jefferson B. Sessions III, et al; Case No.

6

N:\CXLIT\LI2017\180160\01212897.docx

Case 4:17-cv-04642-SBA Document 1 Filed 08/11/17 Page 8 of 25

1 individual’s personal information to a federal immigration officer, on the basis of an administrative

2 warrant, prior deportation order, or other civil immigration document based solely on alleged

3 violations of the civil provisions of immigration laws. See S.F. Admin. Code § 12I.3(c), (d), (e).

4

25. Complying with civil immigration detainer requests would require San Francisco to

5 expend funds and commit scarce law enforcement personnel and resources to track and respond to

6 requests, detain individuals in holding cells, and supervise and feed individuals during the prolonged

7 detention. See S.F. Admin. Code § 12I.1 (“According to Section 287.7 of Title 8 of the Code of

8 Federal Regulations, the City is not reimbursed by the federal government for the costs associated with

9 civil immigration detainers alone. The full cost of responding to a civil immigration detainer can

10 include, but is not limited to, extended detention time, the administrative costs of tracking and

11 responding to detainers, and the legal liability for erroneously holding an individual who is not subject

12 to a civil immigration detainer. Compliance with civil immigration detainers and involvement in civil

13 immigration enforcement diverts limited local resources from programs that are beneficial to the

14 City.”).

15

26. Further, honoring civil immigration detainer requests, in the absence of probable cause,

16 violates the Fourth Amendment to the United States Constitution and could subject San Francisco to

17 civil liability. See Morales v. Chadbourne, 793 F.3d 208, 217 (1st Cir. 2015); Mercado v. Dallas Cty.,

18 Texas, 229 F. Supp. 3d 501, 512-13 (N.D. Tex. 2017); see also Melendres v. Arpaio, 695 F.3d 990,

19 1000-01 (9th Cir. 2012) (applying the Fourth Amendment to immigration arrests).

20

27. San Francisco’s Sanctuary City Laws and policies do not protect criminals. They do not

21 interfere with or hinder criminal prosecutions. They do not prohibit law enforcement in all other

22 respects from collaborating with federal authorities to “protect public safety.” See S.F. Admin. Code

23 § 12I.4.

24

28. Instead, San Francisco’s Sanctuary City Laws protect children, ensuring that their

25 parents feel safe taking them to playgrounds, to schools, and to hospitals. They protect the safety and

26 health of all residents of San Francisco, helping to ensure that everyone, including undocumented

27 //

28 //

CCSF v. Jefferson B. Sessions III, et al; Case No.

7

N:\CXLIT\LI2017\180160\01212897.docx

Case 4:17-cv-04642-SBA Document 1 Filed 08/11/17 Page 9 of 25

1 immigrants, feels safe reporting crimes, cooperating with police investigations, and seeking medical

2 care. They support family stability and community engagement. And they reduce crime.7

3 II. 4

Byrne JAG Provides Critical Funding to San Francisco A. The Byrne JAG Program

5

29. Byrne JAG’s origins trace back over three decades to the Anti-Drug Abuse Act of

6 1988, H.R. 5210, 100th Cong. (1988), which created the original Byrne Formula Grant program. In its

7 original form, the Byrne Formula Grant program provided states with block grants based on

8 population. See Anti-Drug Abuse Act § 6091(a), 42 U.S.C. § 3756 (1994). The program encouraged

9 states to use those funds for very specific enumerated purposes, such as “disrupting illicit commerce in

10 stolen goods and property,” “developing and implementing programs which provide assistance to

11 jurors and witnesses,” and “addressing the problems of drug trafficking and the illegal manufacture of

12 controlled substances in public housing.” See 42 U.S.C. § 3751 (2000).

13

30. Several years after the Byrne Formula Grant program was enacted, Congress also

14 authorized the creation of the Local Law Enforcement Block Grant (“LLEBG”) program, through the

15 FY 1996 law appropriating funding to DOJ. Omnibus Consolidated Rescissions and Appropriations

16 Act of 1996, H.R. 3019, 194th Cong. (1996). The LLEBG program provided money to states and 17 localities based on their crime rates.8 Each year, the LLEBG and Byrne Formula Grant programs

18 disbursed as much as $1 billion to states and local governments.

19

31. Congress consolidated the LLEBG and Byrne Formula Grant programs in 2006, as part

20 of an effort to reduce duplication and streamline the programs. The consolidated program was

21 renamed as today’s Edward Byrne Memorial Justice Assistance Grant program. See Violence Against

22

7 See Tom K. Wong, The Effects of Sanctuary Policies on Crime and the Economy, Center for

23

American Progress, Jan. 26, 2017, https://www.americanprogress.org/issues/immigration/reports/2017/01/26/297366/the-effects-ofsanctuary-policies-on-crime-and-the-economy/ (“On average,

24

35.5 fewer crimes [were] committed per 10,000 people in sanctuary counties compared to nonsanctuary counties.”); Scott D. Rhodes et. al., The Impact of Local Immigration Enforcement

25

Policies on the Health of Immigrant Hispanics/Latinos in the United States, 105 Am. J. Pub. Health 329 (2015); Russell B. Toomey et. al., Impact of Arizona's SB 1070 Immigration Law on Utilization of

26

Health Care and Public Assistance Among Mexican-origin Adolescent Mothers and Their Mother Figures, 104 Am. J. Pub. Health S28 (2014).

27

8 See Nathan James, Edward Byrne Memorial Justice Assistance Grant Program: Legislative

and Funding History, Congressional Research Service at 2-3 (Feb. 1, 2008),

28 http://research.policyarchive.org/18740.pdf.

CCSF v. Jefferson B. Sessions III, et al; Case No.

8

N:\CXLIT\LI2017\180160\01212897.docx

Case 4:17-cv-04642-SBA Document 1 Filed 08/11/17 Page 10 of 25

1 Women and Department of Justice Reauthorization Act of 2005, H.R. 3402, 109th Cong. (2006); U.S.

2 House of Representatives, Committee on the Judiciary, Department of Justice Appropriations

3 Authorization Act, Fiscal Years 2006 Through 2009, Report to accompany H.R. 3402, 109th Cong.,

4 1st Sess., H.R. Rep. No. 109-233, at 89 (2005), (“Judiciary Committee Report”).

5

32. Congress’ core purpose in reformulating the existing grant programs was “to cover the

6 same ground” as the previous grant programs while allowing recipients more freedom “to use the

7 grants constructively.” Judiciary Committee Report at 89. The reforms would “lessen the

8 administrative burden of applying for the grants.” Id. And the resulting program would be streamlined

9 and would ensure that “the same authorized funding levels and uses will be available.” 150 Cong. Rec.

10 S9,950 (daily ed. Sept. 29, 2004) (statement of Sen. Leahy) (discussing similar, precursor version of

11 2005 Act).

12

33. To that end, Byrne JAG is structured as a formula grant, awarding funds to all eligible

13 grantees according to a prescribed metric. Unlike discretionary grants, which agencies award pursuant

14 to agency discretion, “‘formula’ grants . . . are not awarded at the discretion of a state or federal

15 agency, but are awarded pursuant to a statutory formula.” City of Los Angeles v. McLaughlin, 865 F.2d

16 1084, 1088 (9th Cir. 1989). The Bureau of Justice Assistance (“BJA”)—a department within OJP—

17 awards Byrne JAG funds to all eligible grantees in amounts based on Bureau of Justice Statistics

18 (“BJS”) calculations derived from the Byrne JAG statutory formula. See 42 U.S.C. § 3755(d)(2)(A)

19 (providing that the Attorney General “shall allocate to each unit of local government” funds consistent

20 with the established formula) (emphasis added).

21

34. The formula for state allocations is a function of population and violent crime. See id. §

22 3755(a). For local governments, the allocation is a function of the state’s allocation and the ratio of

23 violent crime in the locality to violent crime in the state. See id. § 3755(d).

24

35. BJS first computes a preliminary allocation for each state and United States territory

25 based on its share of violent crime and population (weighted equally). BJS then reviews that initial

26 allocation amount to determine if it is less than the minimum amount defined in the statutory formula

27 (0.25 percent of the total). U.S. Dep’t of Justice, Office of Justice Programs, Bureau of Justice

28 Statistics, Technical Report, Justice Assistance Grant Program, 2016 at 2 (Sept. 2016),

CCSF v. Jefferson B. Sessions III, et al; Case No.

9

N:\CXLIT\LI2017\180160\01212897.docx

Case 4:17-cv-04642-SBA Document 1 Filed 08/11/17 Page 11 of 25

1 https://www.bja.gov/jag/pdfs/JAG-Technical-Report.pdf (“Byrne JAG Technical Report”). If this is

2 the case, the state or territory is funded at the minimum level. Id. Each of the remaining states receives

3 the minimum award plus an additional amount based on its share of violent crime and population. Id.

4

36. Once each state’s final amount is determined, 60 percent is allocated to the state in the

5 first instance, and 40 percent is allocated for direct grants to local governments. 42 U.S.C. § 3755(d).

6 States are obligated to pass a certain percentage of the “state” grant to local governments within the

7 state. 42 U.S.C. § 3755(c)(2).

8

37. For example, in FY 2017, California’s total allocation is $28.3 million. Of this, $17.7

9 million (60 percent) is allocated to the State.9 The other $10.6 million (40 percent) is allocated for

10 direct grants to local jurisdictions.10 Of the $17.7 million allocated to the State, a minimum of 62.9

11 percent must be passed through to local jurisdictions.11 In recent years, California has passed through

12 over 85 percent of JAG funds to local jurisdictions.12

13

38. Congress placed few conditions on recipients of Byrne JAG funds. Award recipients

14 are entitled to their share of the formula allocation as long as their proposed programs satisfy one of

15 the statutory purpose areas. In contrast to the Byrne Formula Grant statutory requirements—which

16 enumerated dozens of specific purposes—the Byrne JAG program allows recipients to allocate their

17 funds in furtherance of any one of eight purpose areas: (1) law enforcement, (2) prosecution and

18 courts, (3) prevention and education, (4) corrections and community corrections, (5) drug treatment,

19 (6) planning, evaluation, and technology improvement, (7) crime victim and witness programs, and (8)

20 mental health programs, including behavioral programs and crisis intervention teams. 42 U.S.C. §

21 3751(a)(1)(A)-(H).

22 //

23

24

9 See https://www.bja.gov/Funding/17JAGStateAllocations.pdf.

10 See https://www.bja.gov/Programs/JAG/jag17/17CA.pdf.

25

11 Byrne JAG Frequently Asked Questions (FAQs)–Updated June 2017, at 2,

26

https://www.bja.gov/Funding/JAGFAQ.pdf; see also FY 2014 Justice Assistance Grant (JAG) Program Variable Passthrough (VPT) percentages, https://www.bja.gov/Funding/JAGvpt.pdf.

27

12 See, e.g., Byrne JAG Fiscal Year 2016 California State Application, at 26,

http://www.bscc.ca.gov/downloads/2016%20BSCC%20Application%20to%20BJA%20for%20Byrne

28 %20JAG%20Funding.pdf.

CCSF v. Jefferson B. Sessions III, et al; Case No.

10

N:\CXLIT\LI2017\180160\01212897.docx

Case 4:17-cv-04642-SBA Document 1 Filed 08/11/17 Page 12 of 25

1

39. None of these program purposes encompass federal immigration enforcement. Indeed,

2 Congress specifically removed an immigration-related funding condition when it merged the Byrne

3 Formula Grant program with LLEBG to create Byrne JAG. Congress eliminated the Byrne Formula

4 Grant requirement that recipients make “[a]n assurance that the State has established a plan under

5 which the State will provide without fee to the Immigration and Naturalization Service, within 30 days

6 of the date of their conviction, notice of conviction of aliens who have been convicted of violating the

7 criminal laws of the State and under which the State will provide the Service with the certified record

8 of such a conviction within 30 days of the date of a request by the Service for such record.” 42 U.S.C.

9 § 3753(a)(11) (2002).

10

40. The current Byrne JAG statute contains no immigration-related conditions. Recipients

11 simply must use funds for a program or activity that falls within one of the several statutory purposes,

12 and certify that they will “comply with all provisions of this [statutory] part and all other applicable

13 Federal laws.” 42 U.S.C. § 3752(a)(5)(D).

14

41. Nowhere in the Byrne JAG statutory authorizing provisions—or elsewhere in federal

15 law—did Congress indicate that Byrne JAG funding recipients must comply with the Notice and

16 Access Requirements that Defendants are imposing. Nor does federal law give the Attorney General—

17 or any official acting at his direction—the authority to impose these conditions.

18

B. Use of Byrne JAG Funds

19

42. The San Francisco Department of Children, Youth and their Families (“DCYF”)

20 applies for local Byrne JAG funds and state pass-through funds on behalf of the City. DCYF keeps a

21 portion of the grant and also administers grant funds to the following departments: Adult Probation,

22 District Attorney, Juvenile Probation, Public Defender, Police, Sheriff. DCYF also passes through

23 funds from the local grant to San Francisco Superior Court and a third party evaluator.

24

43. Consistent with the Byrne JAG statute, San Francisco uses its Byrne JAG funds to

25 support critical law enforcement programs designed to reduce criminal behavior and improve public

26 safety. Specific programs funded with this grant include: (1) Law Enforcement Assisted Diversion, an

27 innovative approach that seeks to accomplish the goals of reduced criminal behavior and improved

28 public safety by connecting appropriate low-level drug offenders with services; (2) Focused Drug

CCSF v. Jefferson B. Sessions III, et al; Case No.

11

N:\CXLIT\LI2017\180160\01212897.docx

Case 4:17-cv-04642-SBA Document 1 Filed 08/11/17 Page 13 of 25

1 Deterrence, short and long term proactive activities including targeted investigations and enforcement

2 and social network analysis to increase the identification of individuals involved in high-level drug

3 markets; (3) Drug Court Prosecution, which seeks to connect criminal defendants who suffer from a

4 substantial substance abuse problem to treatment services in the community in order to enhance public

5 safety, reduce recidivism, and to find appropriate dispositions to the criminal charges; (4) Targeted

6 Drug Treatment for Underserved Populations, a treatment intervention conducted by the Sheriff’s

7 Department for individuals in custody; (5) Intensive Probation Supervision, a targeted caseload of

8 probationers with substance abuse and/or mental health issues; (6) Reentry Social Work through the

9 Public Defender’s Office, which provides legal and wraparound support to help indigent clients

10 charged with felony drug cases and other felony offenses successfully exit the criminal justice system,

11 and (7) Citywide Justice-Involved Youth Planning, which examines current criminal justice trends

12 impacting youth and young adults and strengthens partnerships and collaboration at various levels to

13 create a continuum of support for youth and young adults.

14

44. San Francisco uses State Byrne JAG pass-through funds for two pilot projects designed

15 to reduce recidivism for juveniles and young adults. One project works with the San Francisco Unified

16 School District to create an alternative to suspension for at-risk youth. Students facing suspension—or

17 exhibiting behaviors that put them at risk for suspension—are paired with trained role models who

18 help them learn de-escalation skills and keep them from missing needed instruction time.

19

45. The other project is a Young Adult Court aimed at reducing recidivism for youth ages

20 18-25. This Court was designed in response to a growing body of neuroscience research showing that

21 young adults are fundamentally different from both juveniles and older adults in how they process

22 information and make decisions. Our traditional justice system is not well-equipped to address cases

23 involving these individuals, who are qualitatively different in development, skills, and needs from both

24 children and older adults. The Young Adult Court fills this gap by providing case management and

25 other support for eligible young adult offenders from high-risk backgrounds.

26

46. These City programs span seven departments, and a total of approximately ten full time

27 equivalent positions for these programs are funded with Byrne JAG funds. Without local and state

28

CCSF v. Jefferson B. Sessions III, et al; Case No.

12

N:\CXLIT\LI2017\180160\01212897.docx

Case 4:17-cv-04642-SBA Document 1 Filed 08/11/17 Page 14 of 25

1 JAG funds, San Francisco would be forced to reduce or eliminate these programs, including

2 eliminating staff positions, unless other funding sources could be identified.

3 III. 4 5

The Administration Has Placed Conditions on Byrne JAG Funding to Coerce San Francisco to Abandon Its Sanctuary City Policies
A. The Notice and Access Requirements Conflict with San Francisco’s Sanctuary City Laws and Policies

6

47. For many years, OJP has administered the Byrne JAG program consistent with

7 congressional intent: local jurisdictions received federal funding according to a formula to support law

8 enforcement initiatives, and the federal government imposed few restrictions on state and local

9 governments wishing to receive these grant funds.

10

48. But in 2016, OJP began to change course, issuing guidance that 8 U.S.C. section 1373

11 (“Section 1373”) was an “applicable law” for which jurisdictions had to certify compliance to receive

12 Byrne JAG funds. Beginning in FY 2017, DOJ expanded upon this mandate, requiring a detailed

13 Certification of Compliance to be completed by an applicant’s Chief Legal Officer.

14

49. Section 1373 prohibits state and local governments from restricting their officials from

15 sending to, or receiving from, the Immigration and Naturalization Service information regarding an

16 individual’s citizenship or immigration status.

17

50. Then in late July 2017, OJP went even further. The Attorney General announced that

18 “[r]ecipients for FY 2017 will be notified of new conditions of their grants.”13

19

51. The Attorney General stated that:

20

From now on, the Department will only provide Byrne JAG grants to cities and states that comply with federal law, allow federal immigration access to

21

detention facilities, and provide 48 hours notice before they release an illegal alien wanted by federal authorities. This is consistent with long-established

22

cooperative principles among law enforcement agencies. This is what the American people should be able to expect from their cities and states, and these

23

long overdue requirements will help us take down MS-13 and other violent transnational grants, and make our country safer.14

24

25

26

13 See Press Release, U.S. Dep’t of Justice, Attorney General Sessions Announces Immigration Compliance Requirements for Edward Byrne Memorial Justice Assistance Grant Programs (July 25,

27

2017), https://www.justice.gov/opa/pr/attorney-general-sessions-announces-immigration-compliancerequirements-edward-byrne-memorial.

28

14 Id.

CCSF v. Jefferson B. Sessions III, et al; Case No.

13

N:\CXLIT\LI2017\180160\01212897.docx

Case 4:17-cv-04642-SBA Document 1 Filed 08/11/17 Page 15 of 25

1

52. DOJ has made clear that the Notice and Access Requirements are distinct from Section

2 1373. The new conditions are not included as part of the existing requirement that recipient

3 jurisdictions certify compliance with Section 1373. State Solicitation at 21; Local Solicitation at 20.

4 Rather, they are independent “award conditions” not connected to any statutory requirement. State

5 Solicitation at 32; Local Solicitation at 30.

6

53. OJP included the Notice and Access Requirements in the State Solicitation. The State

7 Solicitation was posted on OJP’s website on July 25, 2017, and provided that applications were to be

8 submitted no later than August 25, 2017.

9

54. The State Solicitation provided, first, that OJP will require grant applicants to “provide

10 at least 48 hours’ advance notice to DHS regarding the scheduled release date and time of an alien in

11 the jurisdiction’s custody when DHS requests such notice in order to take custody of the alien pursuant

12 to the Immigration and Nationality Act.” State Solicitation at 32.

13

55. Further, the State Solicitation provided that OJP will require grant applicants to “permit

14 personnel of the [DHS] to access any correctional or detention facility in order to meet with an alien

15 (or an individual believed to be an alien) and inquire as to his or her right to be or remain in the United

16 States.” State Solicitation at 32.

17

56. DOJ lacks statutory authority for imposing the Notice and Access Requirements on

18 Byrne JAG recipients. As described above, the Byrne JAG authorizing legislation requires program

19 applicants to certify that they will “comply with all provisions of this part and all other applicable

20 Federal laws.” 42 U.S.C. § 3752(a)(5)(D). But no federal law requires that local jurisdictions provide

21 advance notice before releasing a purported alien from their custody, or that they grant federal officials

22 extensive access to local detention facilities to interrogate individuals in local custody. Nor does any

23 federal law give the Attorney General—or any divisions of DOJ—the authority to impose conditions

24 of his choice.

25

57. Furthermore, the Notice and Access Requirements are ambiguous as to what

26 jurisdictions must do to be in compliance. For example, the Notice Requirement does not explain

27 whether notice must be given only when the scheduled release date and time is known at least 48

28 hours in advance, or whether it requires jurisdictions to hold inmates in custody for additional time to

CCSF v. Jefferson B. Sessions III, et al; Case No.

14

N:\CXLIT\LI2017\180160\01212897.docx

Case 4:17-cv-04642-SBA Document 1 Filed 08/11/17 Page 16 of 25

1 provide a full 48 hour period of notice to ICE. Likewise, the Access Requirement is unclear as to

2 whether jurisdictions are required to provide access to inmates in custody only when those individuals

3 consent, or instead whether jurisdictions are required to compel unwilling inmates to meet with ICE

4 representatives.

5

58. OJP included the same two requirements in the Local Solicitation, which was made

6 available for applicants on August 3, 2017. Local applications for FY 2017 Byrne JAG funding must

7 be submitted no later than September 5, 2017.

8

59. The Local Solicitation describes these two new requirements as “award requirements.”

9 Local Solicitation at 29. It provides that “[i]f selected for funding, in addition to implementing the

10 funded project consistent with the OJP-approved application, the recipient must comply with all award

11 requirements (including all award conditions).” Id. The Local Solicitation further provides that

12 “[c]ompliance with the requirements of the two foregoing new award conditions will be an authorized

13 and priority purpose of the award.” Local Solicitation at 30.

14

60. The 2017 Byrne JAG application will require San Francisco to submit assurances that it

15 will comply with all award requirements. Likewise, to accept the award, San Francisco will again need

16 to submit assurances that it will comply with all award requirements.

17

61. San Francisco cannot make these assurances for three reasons.

18

62. First, San Francisco’s Sanctuary City Laws and policies do not comply with the Notice

19 and Access Requirements.

20

63. Second, practical difficulties also prevent San Francisco complying with the Notice

21 Requirement. The Sheriff’s Department is frequently unable to project whether and when an inmate

22 will be released with enough time to provide federal officials with 48 hours’ advance notice. And

23 those release dates and times are often dictated by factors outside of San Francisco’s control. For

24 instance, an inmate’s release is often controlled by a court order that requires San Francisco to release

25 the inmate as quickly as possible. San Francisco officials potentially face liability for delaying an

26 inmate’s release once a court has ordered it. See Berry v. Baca, 379 F.3d 764, 767 (9th Cir. 2004)

27 (noting that local governments may violate the constitutional rights of inmates when they continue to

28 hold inmates after a court has authorized their release).

CCSF v. Jefferson B. Sessions III, et al; Case No.

15

N:\CXLIT\LI2017\180160\01212897.docx

Case 4:17-cv-04642-SBA Document 1 Filed 08/11/17 Page 17 of 25

1

64. Third, the Notice Requirement appears to be yet another effort by the Administration to

2 require compliance with federal detainer requests, despite constitutional problems with requiring

3 compliance. Although federal detainer requests are purportedly voluntary, Attorney General Sessions

4 has frequently criticized jurisdictions, like San Francisco, for failing to honor them.15 The 48 hours’

5 notice condition will allow the Attorney General to accomplish this goal indirectly by cloaking a

6 detainer request in the guise of a notice requirement. That is, because San Francisco will often lack 48

7 hours’ advance notice of an individual’s release date and time, San Francisco will be forced to adjust

8 inmates’ release times to ensure that it can provide the federal government with the required period of

9 notice.

10

65. Coercing San Francisco to detain individuals in this way conflicts with the Fourth

11 Amendment. A number of courts have found that holding an individual for immigration purposes after

12 they would otherwise have been released from custody violates the Fourth Amendment. See San

13 Francisco v. Trump, 2017 WL 1459081, at *4; see also Galarza v. Szalczyk, 745 F.3d 634, 643-45 (3d

14 Cir. 2014); Mercado, 229 F. Supp. 3d at 512-13; Morales v. Chadbourne, --- F. Supp. 3d ---, 2017 WL

15 354292, *4-*5 (D. R.I. Jan. 24, 2017); Miranda-Olivares v. Clackamas Cnty., No. 3:12-cv-02317-ST,

16 2014 WL 1414305, *11 (D. Or. Apr. 11, 2014). Given the reality of how inmates’ release times are

17 determined, San Francisco is simply unable to comply with DOJ’s notice condition without running

18 afoul of the Fourth Amendment.

19

B. The Unconstitutional New Conditions Are Part of the Trump Administration’s

Sustained Campaign to Eradicate Sanctuary Policies 20

21

66. With the Executive Order enjoined, the Notice and Access Requirements appear to be

22 the most recent iteration of the Administration’s attempts to put an end to sanctuary policies. The

23 Attorney General, and other members of the Trump Administration, have repeatedly targeted

24 sanctuary jurisdictions for declining to honor detainer requests and refusing to affirmatively carry out

25 federal immigration enforcement.

26

27

15 See Justice News, Attorney General Jeff Sessions Delivers Remarks on Sanctuary

Jurisdictions (Mar. 27, 2017), https://www.justice.gov/opa/speech/attorney-general-jeff-sessions-

28 delivers-remarks-sanctuary-jurisdictions.

CCSF v. Jefferson B. Sessions III, et al; Case No.

16

N:\CXLIT\LI2017\180160\01212897.docx

Case 4:17-cv-04642-SBA Document 1 Filed 08/11/17 Page 18 of 25

1

67. For instance, in statements to the Daily Caller on July 7, 2015, now-Attorney General

2 Sessions criticized San Francisco and other sanctuary jurisdictions for failing to carry out detainer

3 requests. Sessions stated, “This disregarding of detainers and releasing persons that ICE has put a hold

4 on—it goes against all traditions of law enforcement. Laws and courtesies within departments—if you

5 have somebody charged with a crime in one city, you hold them until you complete your business with

6 them . . . . So what was happening was, ICE authorities were filing detainers and sanctuary cities were

7 saying, ‘We’re not gonna honor them. They finished paying for the crime they committed in our

8 city—we’ve released them.’”16

9

68. After the President appointed him to office, the Attorney General continued to take the

10 same position targeting sanctuary cities. On July 12, 2017, the Attorney General described sanctuary

11 city “policies” as those requiring law enforcement officials to “refuse to cooperate with federal

12 immigration authorities regarding illegal aliens who commit crimes.”17 And he has frequently

13 suggested that he will use every means necessary to withhold federal funding from “sanctuary cities.”

14 See March 27 Sessions remarks.

15

69. The Trump Administration shares these views. President Trump has frequently

16 promised to “defund” sanctuary cities, and to use the threat of withholding federal funds as “a

17 weapon” to coerce local jurisdictions to change their policies.18 Then-Press Secretary Sean Spicer also

18 confirmed that “[w]e are going to strip federal grant money from the sanctuary states and cities that

19 harbor illegal immigrants. The American people are no longer going to have to be forced to subsidize

20 this disregard for our laws.”19

21

22

16 Kerry Picket, Sen. Sessions: City Officials Harboring Illegal Immigrant Felons Could Be Charged with Crime, Daily Caller, July 7, 2015, http://dailycaller.com/2015/07/07/sen-sessions-city-

23 officials-harboring-illegal-immigrant-felons-could-be-charged-with-crime/#ixzz4XE9I12Ux. 17 Press Release, U.S. Dep’t of Justice, Attorney General Jeff Sessions Delivers Remarks in

24 Las Vegas to Federal, State and Local Law Enforcement About Sanctuary Cities and Efforts to

Combat Violent Crime (July 12, 2017), https://www.justice.gov/opa/speech/attorney-general-jeff-

25 sessions-delivers-remarks-las-vegas-federal-state-and-local-law.

26

18 Alexander Mallin and Lissette Rodriguez, Trump Threatens Defunding Sanctuary Cities as ‘Weapon’, ABC News (Feb. 5, 2017), http://abcnews.go.com/Politics/trump-threatens-%20defunding-

27 sanctuary-states-weapon/story?id=45286642. 19 White House, 1/25/17: White House Press Briefing, YouTube (Jan. 25, 2017),

28 https://www.youtube.com/watch?v=OaPriMVvtZA.

CCSF v. Jefferson B. Sessions III, et al; Case No.

17

N:\CXLIT\LI2017\180160\01212897.docx

Case 4:17-cv-04642-SBA Document 1 Filed 08/11/17 Page 19 of 25

1

70. But despite its efforts to coerce so-called sanctuary cities to abandon their policy

2 choices about what makes their own communities safer, the Administration has so far been

3 unsuccessful in its efforts to strip federal funding from them.

4

71. Shortly after taking office, President Trump issued Executive Order 13,768, which

5 threatened to deny all federal funding to sanctuary jurisdictions and to authorize the Attorney General

6 to take unspecified enforcement action against sanctuary cities. The Executive Order declared that

7 “[s]anctuary jurisdictions across the United States willfully violate Federal law in an attempt to shield

8 aliens from removal from the United States. These jurisdictions have caused immeasurable harm to the

9 American people and to the very fabric of our Republic.” Executive Order at 8799.

10

72. To address that purported harm, the Executive Order established the policy that

11 “jurisdictions that fail to comply with applicable Federal law do not receive Federal funds, except as

12 mandated by law.” Executive Order at 8799. In furtherance of this policy, the Executive Order

13 provided that:

14

[T]he Attorney General and the Secretary [of Homeland Security], in their

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

15

that willfully refuse to comply with 8 U.S.C. 1373 (sanctuary jurisdictions) are

not eligible to receive Federal grants, except as deemed necessary for law

16

enforcement purposes by the Attorney General or the Secretary.

17 Executive Order § 9(a).

18

73. The Executive Order also mandated enforcement action: “The Attorney General shall

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

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

21

74. The Administration touted the Executive Order as a means for achieving the President’s

22 goal of “ending sanctuary cities . . . . [T]he President has been very clear through his executive order

23 that federal funds, paid for by hardworking taxpayers, should not be used to help fund sanctuary

24 cities.”20 The Administration vowed that “the President is going to do everything he can within the

25 scope of the executive order to make sure that cities who don’t comply with it—counties and other

26

20 Press Release, The White House, Office of the Press Secretary, Press Briefing by Press

27 Secretary Sean Spicer, 2/1/2017, #6 (Feb. 1, 2017), https://www.whitehouse.gov/the-pressoffice/2017/02/01/press-briefing-press-secretary-sean-spicer-212017-6.

28

CCSF v. Jefferson B. Sessions III, et al; Case No.

18

N:\CXLIT\LI2017\180160\01212897.docx

Case 4:17-cv-04642-SBA Document 1 Filed 08/11/17 Page 20 of 25

1 institutions that remain sanctuary cities don’t get federal government funding in compliance with the

2 executive order.”21

3

75. The Administration’s efforts were promptly blocked by a federal court, which enjoined

4 Section 9(a) of the Executive Order for violating the Constitution. See San Francisco v. Trump, 2017

5 WL 1459081, at *21-*29. The Court held, inter alia, that the President—and in turn, the Attorney

6 General and the Secretary of DHS—lacked the authority “to place a new condition on federal funds . .

7 . not provided for by Congress,” and thus had violated “basic and fundamental constitutional

8 structures” concerning the separation of powers. Id. at *22. And the Court further held that even if the

9 executive branch could exercise that spending power, the Executive Order was unconstitutional

10 because it (1) used vague language that left localities unclear how to comply with the funding

11 conditions; (2) lacked any nexus between the funds at issue and immigration enforcement; and (3)

12 sought to compel local governments to “adopt certain policies” that they had determined, in their

13 considered judgment, to be unwise. Id. at *22-*23. The court found these violations to warrant a

14 nationwide injunction. Id. at *29.

15

76. The Administration’s efforts to withhold federal funding have been stymied in other

16 ways, as well. Congress has repeatedly considered legislation that would punish cities for setting their

17 own law enforcement priorities by allowing federal agencies to withhold certain grants. See, e.g.,

18 Ending Sanctuary Cities Act of 2016, H.R. 6252, 114th Cong. (2016); Stop Dangerous Sanctuary

19 Cities Act, S. 3100, 114th Cong. (2016); Stop Dangerous Sanctuary Cities Act, H.R. 5654, 114th

20 Cong. (2016). None of this legislation has been enacted.

21

77. Indeed, the now-Attorney General introduced Senate Bill 1842, “Protecting American

22 Lives Act,” in July 2015. That bill would in part have expanded existing federal law to deprive

23 jurisdictions having “in effect a statute, policy, or practice that prohibits law enforcement officers of

24 the State, or of a political subdivision of the State, from assisting or cooperating with Federal

25 immigration law enforcement in the course of carrying out the officers’ routine law enforcement

26

27

21 Press Release, The White House, Office of the Press Secretary, Press Briefing by Press

Secretary Sean Spicer, 2/8/2017, #10 (Feb. 8, 2017), https://www.whitehouse.gov/the-press-

28 office/2017/02/08/press-briefing-press-secretary-sean-spicer-282017-10.

CCSF v. Jefferson B. Sessions III, et al; Case No.

19

N:\CXLIT\LI2017\180160\01212897.docx

Case 4:17-cv-04642-SBA Document 1 Filed 08/11/17 Page 21 of 25

1 duties” of “any . . . law enforcement or Department of Homeland Security grant.” S. 1842, 114th

2 Cong. § 3 (2015). The bill never made it out of committee.

3

78. Put simply, Congress has never passed legislation requiring local jurisdictions to

4 comply with the Notice Requirement or the Access Requirement. Nor has it authorized the executive

5 branch to penalize local jurisdictions—by withholding funds or through any other form of

6 punishment—based on their refusal to comply with the Notice or Access Requirements. Defendants’

7 unilateral imposition of the Notice and Access Requirements, in the face of Congress’ contrary

8 position, is unprecedented, unauthorized, and unlawful.

9 IV. San Francisco Faces Immediate Injury From The Notice and Access Requirements

10

79. San Francisco has received state and local Byrne JAG funds every year for decades,

11 and intends to apply for both grants again this year.

12

80. For FY 2017, San Francisco is entitled to a direct Byrne JAG grant in the amount

13 $524,845. San Francisco also expects to receive a state pass-through of Byrne JAG funds in the

14 amount of $923,401.

15

81. OJP posted the FY 2017 Local Solicitation on August 3, 2017, with an application

16 deadline of September 5, 2017. The application requires San Francisco to provide assurances that it

17 will comply with all award requirements. See Local Solicitation.

18

82. OJP has also posted local allocations showing that San Francisco is entitled to $524,845

19 in JAG funds for FY 2017. See https://www.bja.gov/Programs/JAG/jag17/17CA.pdf.

20

83. OJP expects to issue local award notifications by September 30, 2017. In order to

21 accept the award, San Francisco will again be required to submit assurances that it will comply with

22 all award requirements.

23

84. OJP posted the FY 2017 State Solicitation on July 25, 2017, with an application

24 deadline of August 25, 2017.

25

85. OJP has also posted state allocations showing that the State of California is entitled to

26 $17.7 million in JAG funds for FY 2017. See www.bja.gov/Funding/17JAGStateAllocations.pdf.

27

86. States must pass through a portion of state JAG awards to local jurisdictions in the

28 state. See 42 U.S.C. § 3755(c). The California Board of State and Community Corrections (“BSCC”)

CCSF v. Jefferson B. Sessions III, et al; Case No.

20

N:\CXLIT\LI2017\180160\01212897.docx

Case 4:17-cv-04642-SBA Document 1 Filed 08/11/17 Page 22 of 25

1 is the State Administering Agency (“SAA”) responsible for oversight of Byrne JAG funding in

2 California. The BSCC has adopted a multi-year strategy for JAG funding that prioritizes law

3 enforcement; prevention and education programs; and courts, prosecution and defense. This multi-year

4 strategy does not include or prioritize enforcement of federal immigration laws.

5

87. Once the State of California receives JAG funds, it issues a request for proposals

6 (“RFP”) for local jurisdictions to apply for pass-through funds. In 2014, California invited proposals

7 for a three year funding cycle beginning on March 1, 2015, and ending on December 31, 2017. The

8 initial RFP was released on September 15, 2014, with a Notice of Intent to Apply due October 3, 2014,

9 and proposals due November 21, 2014. After the initial award, local jurisdictions were required to re-

10 apply for the second and third year funds. San Francisco was awarded a grant for the Young Adult

11 Court and alternative to suspension projects discussed above, with $1,045,624 awarded in 2015,

12 $983,971 in 2016, and $981,202 in 2017.

13

88. To receive pass-through Byrne JAG funds, San Francisco will again be required to

14 submit assurances that it will comply with all award requirements.

15

89. San Francisco cannot comply with the new Notice and Access Requirements without

16 changing its local laws and policies. The threatened loss of funds thus creates significant pressure for

17 San Francisco to abandon its laws and policies limiting interaction with ICE, despite its decision,

18 supported by research and experience, showing that these policies make the community safer.

19

20

COUNT ONE: SEPARATION OF POWERS

21

90. Plaintiff repeats and incorporates by reference each allegation of the prior paragraphs as

22 if fully set forth herein.

23

91. In July and August 2017, Defendants issued solicitations seeking applications for the

24 Byrne JAG program. The solicitations described the mission of the Byrne JAG program as assisting

25 “State, local, and tribal efforts to prevent or reduce crime and violence.” State Solicitation at 1; Local

26 Solicitation at 1.

27

92. The solicitations state: “Individual FY 2017 JAG awards will include two new express

28 conditions that, with respect to the ‘program or activity’ that would be funded by the FY 2017 award,

CCSF v. Jefferson B. Sessions III, et al; Case No.

21

N:\CXLIT\LI2017\180160\01212897.docx

Case 4:17-cv-04642-SBA Document 1 Filed 08/11/17 Page 23 of 25

1 are designed to ensure that States and units of local government that receive funds from the FY 2017

2 JAG award: (1) permit personnel of the U.S. Department of Homeland Security (DHS) to access any

3 correctional or detention facility in order to meet with an alien (or an individual believed to be an

4 alien) and inquire as to his or her right to be or remain in the United States and (2) provide at least 48

5 hours’ advance notice to DHS regarding the scheduled release date and time of an alien in the

6 jurisdiction’s custody when DHS requests such notice in order to take custody of the alien pursuant to

7 the Immigration and Nationality Act.” State Solicitation at 32; Local Solicitation at 30.

8

93. The Constitution vests Congress with legislative powers, see U.S. Const. art. 1, § 1, and

9 the spending power, see U.S. Const. art. 1, § 8, cl. 1. Absent a statutory provision or an express

10 delegation, only Congress is entitled to attach conditions to federal funds.

11

94. Congress has not enacted the Notice and Access Requirements as part of any statutory

12 scheme.

13

95. Congress has not delegated to Defendants the ability to impose the Notice and Access

14 Requirements on Byrne JAG funds.

15

96. Defendants are unilaterally imposing the Notice and Access Requirements, without

16 authorization from Congress.

17

97. For these reasons, the Notice and Access Requirements unlawfully and

18 unconstitutionally intrude upon and usurp powers that have been assigned to Congress, violating

19 principles of separation of powers.

20

21

COUNT TWO: SPENDING CLAUSE

22

98. Plaintiff repeats and incorporates by reference each allegation of the prior paragraphs as

23 if fully set forth herein.

24

99. As described above, the Notice and Access Requirements violate separation of powers

25 principles because they are not authorized by Congress, expressly or impliedly.

26

100. Yet even if Congress had delegated its authority to impose conditions on the Byrne

27 JAG funds, the Notice and Access Requirements would violate the Spending Clause by:

28 //

CCSF v. Jefferson B. Sessions III, et al; Case No.

22

N:\CXLIT\LI2017\180160\01212897.docx

Case 4:17-cv-04642-SBA Document 1 Filed 08/11/17 Page 24 of 25

1

a. imposing conditions that are ambiguous, see Pennhurst State Sch. & Hosp. v.

2 Halderman, 451 U.S. 1, 17 (1981) (“[I]f Congress intends to impose a condition on the grant of federal

3 moneys, it must do so unambiguously…The legitimacy of Congress’ power to legislate under the

4 spending power . . . rests on whether the State voluntarily and knowingly accepts [Congress’

5 conditions]…There can, of course, be no knowing acceptance if a State is unaware of the conditions or

6 is unable to ascertain what is expected of it.” );

7

b. imposing conditions that are not germane to the stated purposes of the Byrne

8 JAG funds, see South Dakota v. Dole, 483 U.S. 203, 207 (1987) (“[C]onditions on federal grants

9 might be illegitimate if they are unrelated ‘to the federal interest in particular national projects or

10 programs.’”); and

11

c. imposing conditions that would require Byrne JAG recipients to engage in

12 unconstitutional activity such as detaining individuals without probable cause in violation of the

13 Fourth Amendment, see Dole, 483 U.S. at 210 (Congress’ spending power “may not be used to induce

14 the States to engage in activities that would themselves be unconstitutional.”).

15

16

PRAYER FOR RELIEF

17

Wherefore, San Francisco prays that the Court grant the following relief:

18

1. Declare the Notice and Access Requirements unconstitutional;

19

2. Permanently enjoin Defendants from using the Notice and Access Requirements as

20 funding restrictions for Byrne JAG;

21

3. Award San Francisco reasonable costs and attorneys’ fees; and

22 //

23 //

24 //

25 //

26 //

27 //

28 //

CCSF v. Jefferson B. Sessions III, et al; Case No.

23

N:\CXLIT\LI2017\180160\01212897.docx

Case 4:17-cv-04642-SBA Document 1 Filed 08/11/17 Page 25 of 25

1

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

2 Dated: August 11, 2017

3

DENNIS J. HERRERA

4

City Attorney RONALD FLYNN

5

JESSE C. SMITH YVONNE R. MERÉ

6

CHRISTINE VAN AKEN TARA M. STEELEY

7

MOLLIE M. LEE AILEEN M. McGRATH

8

Deputy City Attorneys

9

10

11

By: /s/ Dennis J. Herrera

DENNIS J. HERRERA

12

City Attorney

13

Attorneys for Plaintiff

CITY AND COUNTY OF SAN FRANCISCO

14

15

16

17

18

19

20

21

22

23

24

25

26

27

28

CCSF v. Jefferson B. Sessions III, et al; Case No.

24

N:\CXLIT\LI2017\180160\01212897.docx

 
 Case 3:17-cv-04642-WHO Document 46 Filed 10/31/17 Page 1 of 24

1 CHAD A. READLER

2

Acting Assistant Attorney General JOHN R. TYLER

3

Assistant Director W. SCOTT SIMPSON (Va. Bar #27487)

4 Senior Trial Counsel

Department of Justice, Room 7210
5 Civil Division, Federal Programs Branch

6

Post Office Box 883 Washington, D.C. 20044

7

Telephone: Facsimile:

(202) 514-3495 (202) 616-8470

8 E-mail:

scott.simpson@usdoj.gov

9 COUNSEL FOR DEFENDANTS

10

JEFFERSON B. SESSIONS III, Attorney General of the United States; ALAN R.

11

HANSON, Acting Assistant Attorney General; and U.S. DEPARTMENT OF JUSTICE

12

13

IN THE UNITED STATES DISTRICT COURT

14

FOR THE NORTHERN DISTRICT OF CALIFORNIA

15

SAN FRANCISCO DIVISION

16
CITY AND COUNTY OF SAN
17 FRANCISCO,

No. 3:17-cv-04642-WHO

18

Plaintiff,

19

v.

20 JEFFERSON B. SESSIONS III, Attorney
General of the United States, et al.,
21

22

Defendants.

DEFENDANTS’ NOTICE OF MOTION AND MOTION FOR SUMMARY JUDGMENT; MEMORANDUM OF POINTS AND AUTHORITIES

Date: Time:

December 6, 2017 2:00 p.m.

23

24

25

26

27

28

Motion for Summ. Judgment; Memo. No. 3:17-cv-04642-WHO

Case 3:17-cv-04642-WHO Document 46 Filed 10/31/17 Page 2 of 24

1

TABLE OF CONTENTS

2

3 TABLE OF AUTHORITIES .......................................................................................................... ii

4 NOTICE OF MOTION AND MOTION FOR SUMMARY JUDGMENT ................................... 1

5 MEMORANDUM OF POINTS AND AUTHORITIES ................................................................ 1

6 INTRODUCTION .......................................................................................................................... 1

7 ISSUES PRESENTED.................................................................................................................... 3

8 STATUTORY AND ADMINISTRATIVE BACKGROUND ....................................................... 3

9

I. The Immigration and Nationality Act ..................................................................... 3

10

II. The Office of Justice Programs and the Byrne JAG Program ................................ 5

11

III. The Byrne JAG Grant-Making Process .................................................................. 6

12

IV. Conditions on Byrne JAG Awards.......................................................................... 7

13

V. Additional Conditions for FY 2017 Byrne JAG Awards........................................ 8

14

VI. Recent Developments.............................................................................................. 9

15 ARGUMENT ................................................................................................................................ 10

16

I. Judgment Should Be Entered for the Defendants on

17

Plaintiff’s Separation of Powers Claim................................................................. 10

18

II. Judgment Should Be Entered for the Defendants on

Plaintiff’s Spending Clause Claim ........................................................................ 13

19

CONCLUSION ............................................................................................................................. 18

20

21

22

23

24

25

26

27

28

Motion for Summ. Judgment; Memo.

i

No. 3:17-cv-04642-WHO

Case 3:17-cv-04642-WHO Document 46 Filed 10/31/17 Page 3 of 24

1

TABLE OF AUTHORITIES

2 3 CONSTITUTION

4 U.S. Const. art. I, § 8, cl. 1 ....................................................................................................... 10, 14

5
CASES
6 7 Arizona Dream Act Coal. v. Brewer, 855 F.3d 957 (9th Cir. Feb. 2, 2017) .................................... 4
8 Arizona v. United States, 567 U.S. 387 (2012) ................................................................................ 3

9 Barbour v. Washington Metro. Area Transit Auth., 374 F.3d 1161 (D.C. Cir. 2004) ................... 16

10 Boise Cascade Corp. v. EPA, 942 F.2d 1427 (9th Cir. 1991)........................................................ 12

11 City of Chicago v. Sessions, ___ F. Supp. 3d ___, 2017 WL 4081821

12

(N.D. Ill. Sept. 15, 2017) ....................................................................................................... 9, 10

13 Cty. of Santa Clara v. Trump, 250 F. Supp. 3d 497 (N.D. Cal. 2017)............................... 10, 11, 13

14 Disabled in Action of Pa. v. Se. Pa. Transp. Auth., 539 F.3d 199 (3d Cir. 2008) ......................... 12

15 DKT Mem’l Fund Ltd. v. AID, 887 F.2d 275 (D.C. Cir. 1989).................................................. 2, 11
16 Mann v. Lee, No. C 07-00781 MMC (PR), 2009 WL 5178095 (N.D. Cal. Dec. 22, 2009) .......... 10 17
Mayweathers v. Newland, 314 F.3d 1062 (9th Cir. 2002) ................................................... 3, 15, 17
18 19 New York v. United States, 505 U.S. 144 (1992) ........................................................................... 16
20 Pennhurst State Sch. & Hosp. v. Halderman, 451 U.S. 1 (1981) .................................................. 14

21 S. Dakota v. Dole, 483 U.S. 203 (1987).................................................................................. passim

22 Stone v. INS, 514 U.S. 386 (1995) ................................................................................................. 12
23 United States v. Wenner, 351 F.3d 969 (9th Cir. 2003) ................................................................. 12 24

25 STATUTES

26 8 U.S.C. §§ 1101 et seq.................................................................................................................... 3

27 8 U.S.C. § 1226(c) ......................................................................................................................... 16

28 8 U.S.C. § 1227(a) ........................................................................................................................... 4

Motion for Summ. Judgment; Memo.

ii

No. 3:17-cv-04642-WHO

Case 3:17-cv-04642-WHO Document 46 Filed 10/31/17 Page 4 of 24

1 2 8 U.S.C. § 1227(a)(2) ..................................................................................................................... 16 3 8 U.S.C. § 1228 ................................................................................................................................ 4
4 8 U.S.C. § 1231(i) ............................................................................................................................ 5

5 8 U.S.C. § 1252c ........................................................................................................................ 5, 16

6 8 U.S.C. § 1324(c) ..................................................................................................................... 4, 16

7 8 U.S.C. § 1357(a)(1) ....................................................................................................................... 4

8 8 U.S.C. § 1357(g) ..................................................................................................................... 4, 16

9 8 U.S.C. § 1373(a) ........................................................................................................................... 4 10 8 U.S.C. § 1373(b) ........................................................................................................................... 4 11 12 34 U.S.C. §§ 10101 et seq................................................................................................................ 5 13 34 U.S.C. § 10102(a)(1) ............................................................................................................. 5, 16
14 34 U.S.C. § 10102(a)(2) ......................................................................................................... 3, 5, 16

15 34 U.S.C. § 10102(a)(6) .......................................................................................................... passim

16 34 U.S.C. § 10108 ............................................................................................................................ 5

17 34 U.S.C. §§ 10151-10158............................................................................................................... 5
18 34 U.S.C. § 10152(a)(1) ......................................................................................................... 5, 6, 16
19 34 U.S.C. § 10153(a) ....................................................................................................................... 6 20 34 U.S.C. § 10153(a)(4) ................................................................................................................... 6 21
34 U.S.C. § 10153(a)(5)(C) ............................................................................................................. 6
22 23 34 U.S.C. § 10153(a)(5)(D) ......................................................................................................... 6, 7 24 34 U.S.C. § 10154 ............................................................................................................................ 6 25 34 U.S.C. § 10156 ............................................................................................................................ 6
26 34 U.S.C. §§ 10221-10238............................................................................................................... 5

27 34 U.S.C. § 10251(a)(1) ................................................................................................................... 5

28 34 U.S.C. § 10263 ............................................................................................................................ 5

Motion for Summ. Judgment; Memo.

iii

No. 3:17-cv-04642-WHO

Case 3:17-cv-04642-WHO Document 46 Filed 10/31/17 Page 5 of 24

1 2 34 U.S.C. § 10444(7) ..................................................................................................................... 11
3 42 U.S.C. § 3753 ............................................................................................................................ 17

4 Pub. L. No. 90-351, 82 Stat. 197 (1968) .......................................................................................... 5

5 Joint Resolution Making Continuing Appropriations for FY 1985,

6

Pub. L. No. 98-473, 98 Stat. 1837 (1984).................................................................................. 11

7

Violence Against Women and Department of Justice Reauthorization Act of 2005, Pub. L. No. 109-162 (2006) ................................................................................................. 11, 17

8

Consolidated Appropriations Act, 2017, Pub. L. No. 115-31,

9

Div. B, Title II, 131 Stat. 135 (2017)........................................................................................... 6

10

11 REGULATIONS

12 2 C.F.R. § 200.203 ........................................................................................................................... 8

13 2 C.F.R. § 200.203(c)(2) .................................................................................................................. 6
14 2 C.F.R. § 2800.101 ......................................................................................................................... 6 15

16 RULES

17 Fed. R. Civ. P. 56(a)....................................................................................................................... 10
18 Fed. R. Civ. P. 56(b) ...................................................................................................................... 10 19

20 OTHER AUTHORITY
21 22 H.R. Rep. No. 109-233 (2005) ....................................................................................................... 11

23

24

25

26

27

28

Motion for Summ. Judgment; Memo.

iv

No. 3:17-cv-04642-WHO

Case 3:17-cv-04642-WHO Document 46 Filed 10/31/17 Page 6 of 24

1

NOTICE OF MOTION AND MOTION FOR SUMMARY JUDGMENT

2

PLEASE TAKE NOTICE that on Wednesday, December 6, 2017, at 2:00 p.m., or as soon

3 thereafter as counsel may be heard, before The Honorable William H. Orrick, in Courtroom 2,

4 17th Floor, of the United States Courthouse, 450 Golden Gate Avenue, San Francisco, California,

5 the defendants will move, and hereby do move, for summary judgment in this action under Rule

6 56 of the Federal Rules of Civil Procedure. This motion is based on the following Memorandum

7 of Points and Authorities, the evidence and records on file in this action, and any other written or

8 oral evidence or argument that may be presented at or before the time this motion is heard by the

9 Court.1

10

MEMORANDUM OF POINTS AND AUTHORITIES

11

INTRODUCTION

12

The Department of Justice (“DOJ” or “Department”) distributes federal grant funds to aid

13 law enforcement in jurisdictions throughout the country. These funds serve to advance both local

14 and cooperative law enforcement priorities. Consistent with federal prerogatives, the Department

15 has long imposed conditions on these grants, including in the Edward Byrne Memorial Justice

16 Assistance Grant Program (“Byrne JAG Program”) involved here. If plaintiff’s theories in this

17 action were correct, however, long-standing and never-before-challenged conditions would be in

18 jeopardy.

19

One cooperative priority for DOJ is the enforcement of a lawful system of immigration,

20 especially the removal of non-citizens who have committed crimes in the United States.

21 Accordingly, the Department notified applicants that Fiscal Year (“FY”) 2017 Byrne JAG grants

22 would include conditions that require modest cooperation with federal law enforcement

23 prerogatives in the immigration setting. Those conditions will require grant recipients, among

24 other things, (1) to ensure that certain federal officials are permitted access to the grantee’s

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 (Dkt. No. 1 ¶ 18). Undersigned counsel does not purport to represent those individuals, and claims against them are not at issue in

28 this motion for summary judgment. Moreover, because those individuals have not been named or
served, granting this motion would resolve this litigation in its entirety.

Motion for Summ. Judgment; Memo.

No. 3:17-cv-04642-WHO

Case 3:17-cv-04642-WHO Document 46 Filed 10/31/17 Page 7 of 24

1 correctional facilities for certain immigration enforcement purposes (“access condition”), and

2 (2) to ensure that certain federal officials are provided advance notice of the scheduled release of

3 certain individuals held in state or local correctional facilities (“notice condition”). See

4 Declaration of Alan R. Hanson (“Hanson Decl.”) ¶ 5 & Ex. B at 18-19 (Attachment 1 hereto).

5

Plaintiff, the City and County of San Francisco, has adopted policies that frustrate the

6 federal government’s ability to locate criminal aliens and remove them from the country. In

7 addition to avoiding cooperative efforts through its own, local policies, San Francisco now seeks

8 to do the same with respect to federal prerogatives, asking the Court to enjoin the Department of

9 Justice from imposing immigration-related law enforcement conditions on the receipt of federal

10 funds. Plaintiff’s position would, in essence, allow San Francisco, rather than the Department, to

11 determine the conditions associated with federal grants that Congress has authorized DOJ to

12 award. The City’s position contravenes clear statutory language authorizing DOJ to condition

13 Byrne JAG funding, and ignores the close relationship among the federally-imposed conditions,

14 federal law enforcement prerogatives, and the purposes of the Byrne JAG Program. For these

15 reasons and others, the Court should enter summary judgment in defendants’ favor and dismiss

16 plaintiff’s claims.

17

San Francisco challenges the access and notice conditions under the constitutional

18 Separation of Powers and the Spending Clause. Both claims are without merit. Congress has

19 expressly authorized the Assistant Attorney General (“AAG”) for DOJ’s Office of Justice

20 Programs (“OJP”) to impose the challenged conditions. In the very same enactment that created

21 the Byrne JAG Program in 2006, Congress delegated to the AAG the authority to “plac[e] special

22 conditions on all grants,” and to “determin[e] priority purposes for formula grants.” 34 U.S.C.

23 § 10102(a)(6). The Department thus has ample authority to impose the challenged conditions,

24 and their imposition does not violate the constitutional separation of powers. See DKT Mem’l

25 Fund Ltd. v. AID, 887 F.2d 275, 280-81 (D.C. Cir. 1989) (upholding statutory delegation to the

26 Executive to impose terms and conditions on federal spending programs).

27

In relation to plaintiff’s Spending Clause challenge, the challenged conditions bear much

28 more than “some relationship” to the purposes of the Byrne JAG Program, and thus meet the

Motion for Summ. Judgment; Memo.

2

No. 3:17-cv-04642-WHO

Case 3:17-cv-04642-WHO Document 46 Filed 10/31/17 Page 8 of 24

1 relatedness element of the Spending Clause. See Mayweathers v. Newland, 314 F.3d 1062, 1067

2 (9th Cir. 2002). OJP and the grant programs it administers are designed to strengthen law

3 enforcement and to “maintain liaison” among the various branches of government “in matters

4 relating to criminal justice.” 34 U.S.C. § 10102(a)(2). The challenged conditions emanate from

5 “the Department of Justice’s top priority of reducing violent crime” and the “long-established

6 cooperative principles among law enforcement agencies.” See, e.g., DOJ Press Release No. 17-

7 826, Attorney General Sessions Announces Immigration Compliance Requirements for Edward

8 Byrne Memorial Justice Assistance Grant Programs (July 25, 2017).2 The conditions are also

9 very clear and unambiguous, and they raise no issue under the Fourth Amendment or any other

10 “independent constitutional bar.” See S. Dakota v. Dole, 483 U.S. 203, 210 (1987).

11

Accordingly, the Court should enter summary judgment for the defendants and dismiss

12 plaintiff’s Complaint with prejudice.

13

ISSUES PRESENTED

14

1. Whether the constitutional Separation of Powers is violated by the access condition

15 described below.

16

2. Whether the constitutional Separation of Powers is violated by the notice condition

17 described below.

18

3. Whether the Spending Clause is violated by the access condition described below.

19

4. Whether the Spending Clause is violated by the notice condition described below

20

STATUTORY AND ADMINISTRATIVE BACKGROUND

21 I. The Immigration and Nationality Act

22

“The Government of the United States has broad, undoubted power over the subject of

23 immigration and the status of aliens.” Arizona v. United States, 567 U.S. 387, 394 (2012).

24 Through the Immigration and Nationality Act (“INA”), 8 U.S.C. § 1101 et seq., Congress granted

25 the Executive Branch significant authority to control the entry, movement, and other conduct of

26 foreign nationals in the United States. The INA authorizes the Department of Homeland Security

27

28

2 The cited press release is available at https://www.justice.gov/ opa/ pr/ attorney-generalsessions-announces-immigration-compliance-requirements-edward-byrne-memorial.

Motion for Summ. Judgment; Memo.

3

No. 3:17-cv-04642-WHO

Case 3:17-cv-04642-WHO Document 46 Filed 10/31/17 Page 9 of 24

1 (“DHS”), the Department of Justice, and other Executive Branch agencies to administer and

2 enforce the immigration laws. Likewise, the INA accords the Executive Branch considerable

3 discretion to direct enforcement pursuant to federal policy objectives. See Arizona Dream Act

4 Coal. v. Brewer, 855 F.3d 957, 967 (9th Cir. Feb. 2, 2017) (“By necessity, the federal statutory

5 and regulatory scheme, as well as federal case law, vest the Executive with very broad discretion

6 to determine enforcement priorities.”).

7

The INA includes several provisions that protect the ability of federal officials to

8 investigate the status of non-citizens in the United States and otherwise enforce the immigration

9 laws. For example, the statute provides that a federal immigration officer “shall have power

10 without warrant . . . to interrogate any alien or person believed to be an alien as to his right to be

11 or to remain in the United States.” 8 U.S.C. § 1357(a)(1). Separately, pursuant to 8 U.S.C.

12 § 1373, “a Federal, State, or local government entity or official may not prohibit, or in any way

13 restrict, any government entity or official from sending to, or receiving from, [federal immigra-

14 tion authorities] information regarding the citizenship or immigration status, lawful or unlawful,

15 of any individual.” Id. § 1373(a).3 The INA provides that certain classes of non-citizens,

16 including certain criminal aliens, shall be removed from the United States upon the order of the

17 Attorney General or the Secretary of Homeland Security. See, e.g., id. §§ 1227(a), 1228.

18 The INA also establishes immigration enforcement as a cooperative endeavor among federal,

19 state, and local law enforcement agencies. See, e.g., id. § 1357(g) (providing that DHS may enter

20 into formal cooperative agreements with States and localities under which appropriately trained

21 and qualified state and local officers may perform specified functions of a federal immigration

22 officer in relation to the investigation, apprehension, or detention of aliens); id. § 1324(c)

23 (authorizing state and local law enforcement officers to make arrests for violations of the INA’s

24

25

3 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 infor-
27 mation to, or requesting or receiving such information from, [federal immigration authorites]. (2)

28

Maintaining such information. (3) Exchanging such information with any other Federal, State, or local government entity.”

Motion for Summ. Judgment; Memo.

4

No. 3:17-cv-04642-WHO

Case 3:17-cv-04642-WHO Document 46 Filed 10/31/17 Page 10 of 24

1 prohibition against smuggling, transporting, or harboring aliens); id. § 1252c (authorizing state

2 and local officers to arrest certain felons who have unlawfully returned to the United States); id.

3 § 1231(i) (establishing State Criminal Alien Assistance Program, under which federal govern-

4 ment compensates States and localities for their incarceration of certain criminal aliens).

5 II. The Office of Justice Programs and the Byrne JAG Program

6

Title I of the Omnibus Crime Control and Safe Streets Act of 1968, as amended,

7 established the Office of Justice Programs within the Department of Justice, and provides for OJP

8 to be headed by an Assistant Attorney General. See Pub. L. No. 90-351, 82 Stat. 197 (1968),

9 codified as amended at 34 U.S.C. § 10101 et seq. Congress gave the AAG certain “[s]pecific,

10 general and delegated powers,” including the power to “publish and disseminate information on

11 the conditions and progress of the criminal justice systems” and to “maintain liaison with the

12 executive and judicial branches of the Federal and State governments in matters relating to

13 criminal justice.” 34 U.S.C. § 10102(a)(1), (2). Most notably for this case, the statute also

14 authorizes the AAG to “exercise such other powers and functions as may be vested in [him]

15 pursuant to this chapter or by delegation of the Attorney General, including placing special

16 conditions on all grants, and determining priority purposes for formula grants.” Id.

17 § 10102(a)(6) (emphasis added).

18

The same title of the Omnibus Crime Control and Safe Streets Act also established the

19 Byrne JAG Program. See generally 34 U.S.C. §§ 10151-58. Under this program, OJP is

20 authorized to “make grants to States and units of local government . . . to provide additional

21 personnel, equipment, supplies, contractual support, training, technical assistance, and informa-

22 tion systems for criminal justice, including for any one or more of [certain enumerated] programs.

23 Id. § 10152(a)(1). In the same chapter, “criminal justice” is defined broadly to include various

24 activities of the police, the courts, and “related agencies.” Id. § 10251(a)(1). Various other

25 provisions of the Omnibus Crime Control Act also apply to OJP and the Byrne JAG Program.

26 See, e.g., id. § 10108 (period of availability of grant funds); §§ 10221-10238 (administrative

27 provisions); § 10263 (audit requirements and other provisions).

28

Motion for Summ. Judgment; Memo.

5

No. 3:17-cv-04642-WHO

Case 3:17-cv-04642-WHO Document 46 Filed 10/31/17 Page 11 of 24

1

To request funds under the Byrne JAG Program, applicants must “submit an application to

2 the Attorney General . . . in such form as the Attorney General may require.” Id. § 10153(a).

3 Congress provided that these applications must include, among other things, an “assurance that,

4 for each fiscal year covered by an application, the applicant shall maintain and report such data,

5 records, and information (programmatic and financial) as the Attorney General may reasonably

6 require”; “[a] certification, made in a form acceptable to the Attorney General . . . that . . . there

7 has been appropriate coordination with affected agencies;” and “[a] certification, made in a form

8 acceptable to the Attorney General . . . that . . . the applicant will comply with all provisions of

9 this part and all other applicable Federal laws.” Id. § 10153(a)(4), (a)(5)(C), (a)(5)(D). Before

10 issuing a final disapproval of any application under the Byrne JAG Program, the Attorney

11 General must “afford[] the applicant reasonable notice of any deficiencies in the application and

12 opportunity for correction and reconsideration.” Id. § 10154.

13

The Byrne JAG Program provides “formula grants” – that is, grants that, when awarded,

14 must follow a statutory formula based on population, the rate of violent crime, and other factors.

15 Id. §§ 10152(a)(1), 10156. Funding under the Program is subject to annual appropriations. For

16 FY 2017, Congress appropriated $396,000,000 for the Byrne JAG Program, with certain carve-

17 outs from that amount obligated to specific initiatives. See Consolidated Appropriations Act,

18 2017, Pub. L. No. 115-31, Div. B, Title II, 131 Stat. 135, 203 (2017).

19 III. The Byrne JAG Grant-Making Process

20

The federal grant-making process, including the issuance of Byrne JAG grants, contains

21 several steps. The awarding agency typically issues a solicitation that contains “sufficient infor-

22 mation to help an applicant make an informed decision about whether to submit an application.”

23 See generally Office of Management and Budget, Uniform Administrative Requirements, Cost

24 Principles, and Audit Requirements for Federal Awards (“OMB Uniform Guidance”), 2 C.F.R.

25 § 200.203(c)(2);4 see also OJP Grant Process Overview, available at https://ojp.gov/ funding/

26 Apply/ GrantProcess.htm. Applicants respond to the solicitation by submitting an application in

27

4 The Department of Justice has adopted the OMB Uniform Guidance by regulation, with

28 limited exceptions. See 2 C.F.R. § 2800.101.

Motion for Summ. Judgment; Memo.

6

No. 3:17-cv-04642-WHO

Case 3:17-cv-04642-WHO Document 46 Filed 10/31/17 Page 12 of 24

1 the form specified and with the relevant information requested. See generally OJP Grant Process

2 Overview. The deadline for local units of government to submit Byrne JAG applications for

3 Fiscal Year 2017 was September 5, 2017.5 See Hanson Decl. ¶ 4.

4

For grants administered by OJP and its subcomponents, the Office engages in a multi-

5 factored review of each application and, for those applications that are approved, OJP generates

6 an award package that is transmitted to the applicant. See generally OJP Grant Process

7 Overview. Applicants typically have forty-five calendar days to accept the award documents,

8 during which time the applicant has an opportunity to “[r]eview the special conditions on the

9 award document.” Id. Throughout the course of the grant period, OJP monitors compliance with

10 the terms and conditions of the award and, ultimately, the grantee and OJP engage in certain

11 activities to complete relevant closeout requirements for each award, such as preparation of final

12 reports. Id.

13 IV. Conditions on Byrne JAG Awards

14

OJP has historically included a variety of conditions in Byrne JAG award documents,

15 including, for example, conditions requiring the grantee to comply with regulations pertaining to

16 civil rights and nondiscrimination, conditions requiring that body armor purchased with grant

17 funding meet certain minimum quality standards, and conditions designed to encourage grantees

18 to adopt policies banning employees from text messaging while driving on duty. These condi-

19 tions have varied over time, depending on national law enforcement necessities and Department

20 priorities. For FY 2016, San Francisco’s Byrne JAG award included fifty-one conditions, all of

21 which the plaintiff accepted without objection or legal challenge. See Hanson Decl. ¶ 3 & Ex. A.

22

Additionally, the FY 2016 solicitation for the Byrne JAG Program included an explicit

23 recognition that 8 U.S.C. § 1373 was one of the “applicable Federal laws” with which grantees

24 are expected to comply. See Edward Byrne Memorial Justice Assistance Grant (JAG) Program,

25 Fiscal Year (FY) 2016 Local Solicitation at 12, available at https://www.bja.gov/ funding/

26 JAGLocal16.pdf; see also 34 U.S.C. § 10153(a)(5)(D). That recognition was prompted by a

27

28

5 Some exceptions to that deadline were made relating to jurisdictions affected by Hurricane Harvey.

Motion for Summ. Judgment; Memo.

7

No. 3:17-cv-04642-WHO

Case 3:17-cv-04642-WHO Document 46 Filed 10/31/17 Page 13 of 24

1 memorandum issued by the Department of Justice’s Inspector General on May 31, 2016,

2 expressing concern that several state and local governments receiving federal grants may not be

3 complying with Section 1373. See Mem. from Michael E. Horowitz, Inspector Gen., to Karol V.

4 Mason, Assistant Att’y Gen., Office of Justice Programs, Department of Justice Referral of

5 Allegations of Potential Violations of 8 U.S.C. § 1373 by Grant Recipients (May 31, 2016)

6 (Attachment 2 hereto). Although the Inspector General observed that applications of certain local

7 ordinances might be inconsistent with Section 1373, id. at 4-8, the report made clear that “no one

8 at DHS . . . has made a formal legal determination whether certain state and local laws or policies

9 violate Section 1373, and we are unaware of any Department of Justice decision in that regard.”

10 Id. at 8 n.12.

11 V. Additional Conditions for FY 2017 Byrne JAG Awards

12

In August 2017, OJP published a solicitation seeking applications from local governments

13 for participation in the FY 2017 Byrne JAG Program. See Hanson Decl. ¶ 4. Among other

14 things, that solicitation notified potential applicants that the grant award documents for FY 2017

15 would contain two new special conditions, in addition to the requirement to certify compliance

16 with 8 U.S.C. § 1373 (Dkt. No. 1, Ex. B at 30). Specifically, one condition would be designed to

17 ensure that Byrne JAG grantees would “permit personnel of [DHS] to access any correctional or

18 detention facility in order to meet with an alien . . . and inquire as to his or her right to be or

19 remain in the United States,” and another condition would be designed to ensure that grantees

20 would “provide at least 48 hours’ advance notice to DHS regarding the scheduled release date and

21 time of an alien in the jurisdiction’s custody when DHS requests such notice in order to take

22 custody of the alien pursuant to the [INA]” (id.). The notification contained in the FY 2017

23 solicitation was not itself a grant condition, akin to those contained in the grant award documents;

24 rather, it was merely a notification designed to “help an applicant make an informed decision

25 about whether to submit an application.” 2 C.F.R. § 200.203.

26

The actual new conditions that OJP intends to attach to FY 2017 Byrne JAG awards

27 appear in the FY 2017 award documents that OJP has already issued to two jurisdictions – the

28

Motion for Summ. Judgment; Memo.

8

No. 3:17-cv-04642-WHO

Case 3:17-cv-04642-WHO Document 46 Filed 10/31/17 Page 14 of 24

1 County of Greenville, South Carolina, and the City of Binghamton, New York. See Hanson Decl.

2 ¶ 5 & Ex. B. Specifically, Conditions 55 and 56 provide:

3

With respect to the “program or activity” that is funded (in whole or in part) by

4

this award, as of the date the recipient accepts this award, and throughout the remainder of the period of performance for the award--

5

A. A local ordinance, -rule, -regulation, -policy, or -practice (or an applicable State

6

statute, -rule, -regulation, -policy, or -practice) must be in place that is designed to

7

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

8

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’

9

right to be or remain in the United States.

10

B. A local ordinance, -rule, -regulation, -policy, or -practice (or an applicable State

11

statute, -rule, -regulation, -policy, or -practice) must be in place that is designed to ensure that, when a local-government (or local-government-contracted)

12

correctional facility receives from DHS a formal written request authorized by the

Immigration and Nationality Act that seeks advance notice of the scheduled

13

release date and time for a particular alien in such facility, then such facility will

14

honor such request and -- as early as practicable . . . provide the requested notice to DHS.

15 Id., Ex. B at 19. Under “Rules of Construction” within those grant conditions, the award

16 documents make clear that nothing in these conditions requires a grantee to detain “any individual

17 in custody beyond the date and time the individual would have been released in the absence of

18 this condition.” Id. at 18, 19. The documents also make clear that these conditions impose no 19 requirements in relation to any requests by federal immigration authorities to detain non-citizens,

20 and that the notice condition requires “only as much advance notice as practicable” before the

21 release of a non-citizen. Id. Finally, the conditions apply only to the “program or activity” to be 22 funded under the award (as stated above), and they allow awarded funds to be used for costs

23 incurred in implementing the conditions. See id.

24 VI. Recent Developments

25

In a challenge brought by the City of Chicago, a federal district court issued a nationwide

26 preliminary injunction on September 15, 2017, against imposition of the access and notice

27 conditions. See City of Chicago v. Sessions, ___ F. Supp. 3d ___, 2017 WL 4081821, at *14

28

Motion for Summ. Judgment; Memo.

9

No. 3:17-cv-04642-WHO

Case 3:17-cv-04642-WHO Document 46 Filed 10/31/17 Page 15 of 24

1 (N.D. Ill. Sept. 15, 2017).6 Defendants have appealed that decision, but the appeal has been

2 stayed pending other proceedings in district court.

3

San Francisco submitted its application for a Fiscal Year 2017 Byrne JAG award on

4 September 5, 2017. See Hanson Decl. ¶ 4. OJP has not made a decision on that application, and

5 at this time is not issuing FY 2017 Byrne JAG award documents to any applicants while awaiting

6 developments in the Chicago litigation. Id. ¶¶ 7-8.

7

ARGUMENT

8

A party may file a motion for summary judgment “at any time” until after the close of

9 discovery. See Fed. R. Civ. P. 56(b). “The court shall grant summary judgment if the movant

10 shows that there is no genuine dispute as to any material fact and the movant is entitled to

11 judgment as a matter of law.” Fed. R. Civ. P. 56(a). A party may file a motion for summary

12 judgment without having filed an answer, and the filing of such a motion tolls the time to answer.

13 See Mann v. Lee, No. C 07-00781 MMC (PR), 2009 WL 5178095, at *2 (N.D. Cal. Dec. 22,

14 2009).

15

In light of the governing statutes and the language of the challenged grant conditions,

16 “there is no genuine dispute as to any material fact and the [defendants in this action are] entitled

17 to judgment as a matter of law.”

18 I.

Judgment Should Be Entered for the Defendants on Plaintiff’s

19

Separation of Powers Claim

20

Plaintiff alleges that the access and notice conditions violate the constitutional Separation

21 of Powers by “unilaterally imposing [those] Requirements, without authorization from Congress”

22 (Dkt. No. 1 ¶ 96). Article I of the Constitution confers on Congress the authority to “lay and

23 collect Taxes, Duties, Imposts and Excises, to pay the Debts and provide for the common

24 Defence and general Welfare of the United States.” U.S. Const. art. I, § 8, cl. 1. As this Court

25 has said in another case, Congress may, “[i]ncident to” its spending power, “attach conditions on

26 the receipt of federal funds,” Cty. of Santa Clara v. Trump, 250 F. Supp. 3d 497, 530 (N.D. Cal.

27

6 Although Chicago had also challenged the Section 1373 compliance condition, the

28

Chicago court granted no relief on that claim “because the City has failed to establish a likelihood of success on the merits” as to that condition. 2017 WL 4081821, at *14.

Motion for Summ. Judgment; Memo.

10

No. 3:17-cv-04642-WHO

Case 3:17-cv-04642-WHO Document 46 Filed 10/31/17 Page 16 of 24

1 2017) (quoting Dole, 483 U.S. at 206), and “Congress can delegate some discretion to the

2 President to decide how to spend appropriated funds” so long as “any delegation and discretion is

3 cabined by [relevant] constitutional boundaries.” 250 F. Supp. 3d at 531; see DKT Mem’l Fund

4 Ltd. v. AID, 887 F.2d 275, 280-81 (D.C. Cir. 1989) (upholding conditions on spending imposed

5 by President where statute authorized President to set certain “terms and conditions as he may

6 determine”). As discussed below, both the access condition and the notice condition in the Byrne

7 JAG Program are consistent with these principles.

8

As noted earlier, the AAG for the Office of Justice Programs, who administers the Byrne

9 JAG Program, is empowered to “plac[e] special conditions on all grants, and [to] determin[e]

10 priority purposes for formula grants.” 34 U.S.C. § 10102(a)(6). Congress added this language to

11 the AAG’s statutory responsibilities in 2006, as part of the same legislation that created the Byrne

12 JAG Program. See Violence Against Women and Department of Justice Reauthorization Act of

13 2005, Pub. L. No. 109-162, 119 Stat. 2960 (2006), § 1152(b) (adding language to subsection

14 (a)(6)); id. § 1111 (creating Byrne JAG Program). Before that 2006 amendment, Section 10102

15 stated only that the AAG “exercise[s] such other powers and functions as may be vested in the

16 Assistant Attorney General pursuant to this title or by delegation of the Attorney General.” See

17 Joint Resolution Making Continuing Appropriations for FY 1985, Pub. L. No. 98-473, § 603, 98

18 Stat. 1837 (1984). Further, by contrast, the organic statute for the head of a different grant-

19 making component of the Department of Justice, which statute was enacted in 2002, continues to

20 use the more limited language that Section 10102 formerly contained, without the additional

21 authority to place “special conditions” and to determine “priority purposes” that Congress chose

22 to bestow on OJP. See 34 U.S.C. § 10444(7) (providing that Director of Violence Against

23 Women Office “[e]xercis[es] such other powers and functions as may be vested in the Director

24 pursuant to this subchapter or by delegation of the Attorney General”). Thus, as stated in the

25 House committee report on the bill that became the 2006 amendment, 34 U.S.C. § 10102(a)(6)

26 “allows the Assistant Attorney General to place special conditions on all grants and to determine

27 priority purposes for formula grants.” H.R. Rep. No. 109-233, at 101 (2005).

28

Motion for Summ. Judgment; Memo.

11

No. 3:17-cv-04642-WHO

Case 3:17-cv-04642-WHO Document 46 Filed 10/31/17 Page 17 of 24

1

Section 10102(a)(6) necessarily confers authority not conferred elsewhere. As the

2 Supreme Court has said, “[w]hen Congress acts to amend a statute, [courts] presume it intends its

3 amendment to have real and substantial effect.” Stone v. INS, 514 U.S. 386, 397 (1995). Any

4 contrary interpretation would violate the “fundamental canon of statutory construction that a

5 statute should not be construed so as to render any of its provisions mere surplusage.” United

6 States v. Wenner, 351 F.3d 969, 975 (9th Cir. 2003). The AAG’s statutory authorities must be

7 interpreted “as a whole” and not in a manner that renders certain provisions “inconsistent,

8 meaningless or superfluous.” Boise Cascade Corp. v. EPA, 942 F.2d 1427, 1432 (9th Cir. 1991).

9 Faced with a choice between plaintiff’s interpretation, which would render Section 10102(a)(6)

10 superfluous, and defendants’ interpretation, which gives it effect, the Court should choose the

11 latter. See Disabled in Action of Pa. v. Se. Pa. Transp. Auth., 539 F.3d 199, 211 (3d Cir. 2008).

12

Consistent with the AAG’s statutory authority, Byrne JAG awards have historically

13 contained various discretionary conditions that are not compelled by any federal statute, but

14 promote the Department of Justice’s law enforcement and public safety goals. These conditions

15 were contained in San Francisco’s FY 2016 Byrne JAG award documents. For example, the

16 Department has imposed a condition that requires complying with certain guidelines and recom-

17 mendations enumerated by DOJ to “promote information sharing and enable interoperability

18 among disparate systems across the justice and public safety community.” See Hanson Decl., Ex.

19 A at 9 (Condition 26). Another condition has prohibited the use of award funds to purchase

20 various types of equipment and weapons on a “Prohibited Expenditure List,”7 which list in turn

21 traces back in significant part not to any statute or regulation but to an Executive Order. Id. at 12

22 (Condition 49). Multiple conditions have also imposed training mandates: certain training must

23 be completed for law enforcement task forces, id. at 9 (Condition 32); a grantee must agree to

24 participate, upon request, in various training events, technical assistance events, or

25 conferences, id. (Condition 33); and quarterly data must be submitted regarding certain kinds of

26 training that law enforcement officers have received, id. at 11 (Condition 43). Grantees have also

27

28

7 The Prohibited Expenditure List is available at https://www.bja.gov/ funding/ JAGControlledPurchaselist.pdf.

Motion for Summ. Judgment; Memo.

12

No. 3:17-cv-04642-WHO

Case 3:17-cv-04642-WHO Document 46 Filed 10/31/17 Page 18 of 24

1 been encouraged to adopt policies banning employees from text messaging while driving on duty,

2 id. at 8 (Condition 22), and to submit “JAG success stories,” id. at 11 (Condition 44). Also, for

3 FY 2017, the Department is requiring that when award funds are used for DNA testing, any

4 resulting eligible DNA profiles must be uploaded to the Combined DNA Index System

5 (“CODIS”) maintained by the Federal Bureau of Investigation. See Hanson Decl., Ex. B at 20

6 (Condition 57). The particular conditions that the plaintiff challenges here are not different in

7 kind from these many other Byrne JAG grant conditions.

8

This authority is not unlimited, however. An obvious limitation on the Department’s

9 discretion is the Constitution. Under the Supreme Court’s jurisprudence regarding requirements

10 for use of the spending power to condition federal grants, a grant condition must, for example, be

11 germane and non-coercive. See Dole, 483 U.S. at 207. A grant condition must also comport with

12 all “other constitutional provisions” apart from the Spending Clause. Id. at 208. Moreover, the

13 Department’s conditioning power is self-limiting in practice, because extremism in imposing

14 conditions will cause prospective recipients to reject the grant rather than accept the condition.

15

In light of the foregoing, the conditions challenged here fit comfortably within the

16 Assistant Attorney General’s delegated authority. See Cty. of Santa Clara, 250 F. Supp. 3d at 531

17 (noting that “Congress can delegate some discretion to the President to decide how to spend

18 appropriated funds” so long as “any delegation and discretion is cabined by [relevant]

19 constitutional boundaries”). Pursuant to this authority, the AAG may prioritize formula grants,

20 like the Byrne JAG Program, for jurisdictions that assist federal authorities in achieving federal

21 law enforcement priorities, including removal of criminal aliens under immigration law. Further,

22 the access and notice conditions challenged here are “special conditions” under 34 U.S.C.

23 § 10102(a)(6).

24 II. 25

Judgment Should Be Entered for the Defendants on Plaintiff’s Spending Clause Claim

26

Plaintiff alleges that the access and notice conditions violate the Spending Clause by

27 imposing grant conditions that are purportedly ambiguous and “not germane” to the purposes of

28 the Byrne JAG Program, and would require grantees to “engage in unconstitutional activity”

Motion for Summ. Judgment; Memo.

13

No. 3:17-cv-04642-WHO

Case 3:17-cv-04642-WHO Document 46 Filed 10/31/17 Page 19 of 24

1 (Dkt. No. 1 ¶ 100). The Spending Clause provides that Congress may “lay and collect Taxes,

2 Duties, Imposts and Excises, to pay the Debts and provide for the common Defence and general

3 Welfare of the United States.” U.S. Const. art. I, § 8, cl. 1. As the Supreme Court has held,

4 “Congress may attach conditions on the receipt of federal funds, and has repeatedly employed the

5 power to further broad policy objectives by conditioning receipt of federal moneys upon

6 compliance by the recipient with federal statutory and administrative directives.” Dole, 483 U.S.

7 at 206 (internal quotation marks omitted).

8

The Supreme Court in South Dakota v. Dole described certain limitations or potential

9 limitations on the spending power. Most basically, conditions on the receipt of federal funds

10 must be stated “unambiguously” so that recipients can “exercise their choice knowingly,

11 cognizant of the consequences of their participation.” Id. (citing Pennhurst State Sch. & Hosp. v.

12 Halderman, 451 U.S. 1, 17 (1981) (“The legitimacy of Congress’ power to legislate under the

13 spending power thus rests on whether the State voluntarily and knowingly accepts the terms of

14 the ‘contract.’ There can, of course, be no knowing acceptance if a State is unaware of the

15 conditions or is unable to ascertain what is expected of it.”) (citations omitted) (hereinafter

16 Pennhurst). Additionally, the Court observed in Dole, “our cases have suggested (without

17 significant elaboration) that conditions on federal grants might be illegitimate if they are unrelated

18 to the federal interest in particular national projects or programs.” 483 U.S. at 207-08 (internal

19 quotation marks omitted). And finally, the Court said that “other constitutional provisions may

20 provide an independent bar to the conditional grant of federal funds.” Id. at 207-08.

21

The access and notice conditions are consistent with all of these principles.8 First, these

22 conditions clearly state what conduct is required, so that Byrne JAG grantees can “exercise their

23 choice knowingly, cognizant of the consequences of their participation.” Dole, 483 U.S. at 206.

24 They require grantees (1) to give “agents of the United States acting under color of federal law”

25 access to correctional facilities “to meet with individuals who are (or are believed by such agents

26

27

8 The Court in Dole described limitations on congressional power, whereas the plaintiff here alleges that certain Executive actions exceed the spending power. Obviously, these

28

principles – including the relatedness concept discussed below – apply equally to Executive actions as to congressional actions.

Motion for Summ. Judgment; Memo.

14

No. 3:17-cv-04642-WHO

Case 3:17-cv-04642-WHO Document 46 Filed 10/31/17 Page 20 of 24

1 to be) aliens and to inquire as to such individuals’ right to be or remain in the United States,” and

2 (2) to notify DHS, upon “formal written request” and “as early as practicable,” before “the

3 scheduled release date and time for a particular alien in such facility.” See Hanson Decl., Ex. B at

4 19. The award documents specify that nothing in these conditions requires a grantee to detain

5 “any individual in custody beyond the date and time the individual would have been released in

6 the absence of this condition”; that the conditions impose no requirements regarding any requests

7 by federal immigration authorities to detain non-citizens; and that the notice condition requires

8 “only as much advance notice as practicable.” Id. at 18, 19. Moreover, to the extent any uncer-

9 tainty may remain, the FY 2017 Byrne JAG solicitation invited any prospective grantee with a

10 question about “any . . . requirement of this solicitation” to contact OJP’s Response Center

11 (customer service center) by telephone, email, or Internet chat (Dkt. No. 1, Ex. B at 2). A

12 prospective grantee could also contact the appropriate “State Policy Advisor” – that is, a specific,

13 named OJP employee assigned to work with jurisdictions within a specified geographical area.

14 Id.; BJA Programs Office Contact Information, available at https://www.bja.gov/ About/

15 Contacts/ ProgramsOffice.html.9

16

Second, plaintiff alleges that the access and notice conditions are “not germane to the

17 stated purposes of the Byrne JAG funds” (Dkt. No. 1 ¶ 100). As the Court of Appeals has

18 observed, however, this aspect of Dole suggests only a “possible ground” for invalidating an

19 enactment, and does not impose an “exacting standard”:

20

The Supreme Court has suggested that federal grants conditioned on compliance

21

with federal directives might be illegitimate if the conditions share no relationship to the federal interest in particular national projects or programs. This possible

22

ground for invalidating a Spending Clause statute, which only suggests that the

23

legislation might be illegitimate without demonstrating a nexus between the conditions and a specified national interest, is a far cry from imposing an exacting

24

standard for relatedness.

25 Mayweathers v. Newland, 314 F.3d 1062, 1067 (9th Cir. 2002) (citing Dole, 483 U.S. at 207).

26

27

28

9 “BJA” refers to the Bureau of Justice Assistance, the OJP component that administers the Byrne JAG Program.

Motion for Summ. Judgment; Memo.

15

No. 3:17-cv-04642-WHO

Case 3:17-cv-04642-WHO Document 46 Filed 10/31/17 Page 21 of 24

1 Thus, conditions on federal funding must only “bear some relationship to the purpose of the

2 federal spending.” 314 F.3d at 1067 (quoting New York v. United States, 505 U.S. 144, 167

3 (1992)); see Barbour v. Washington Metro. Area Transit Auth., 374 F.3d 1161, 1168 (D.C. Cir.

4 2004) (noting that Supreme Court has never “overturned Spending Clause legislation on

5 relatedness grounds”).

6

The access and notice conditions easily meet this standard. The Byrne JAG Program’s

7 organic statute specifies that grant funds are designed to provide resources “for criminal justice,”

8 to support programs including law enforcement, prosecution, crime prevention, and corrections.

9 34 U.S.C. § 10152(a)(1). These goals are also reflected in the responsibilities of the AAG, which

10 include disseminating information on “criminal justice systems” and “maintain[ing] liaison with

11 the executive and judicial branches of the Federal and State governments in matters relating to

12 criminal justice.” Id. § 10102(a)(1), (2). Thus, the overall goal of the Program is to support and

13 strengthen law enforcement and criminal justice and to encourage intergovernmental “liaison.”

14

Similarly, the access and notice conditions are meant to strengthen law enforcement and

15 public safety and to promote cooperation between federal and local authorities. Numerous

16 federal statutes expressly link immigration enforcement with public safety, criminal justice, and

17 intergovernmental cooperation. For example, as discussed above, a conviction for any of a wide

18 variety of criminal offenses renders an alien removable from this country. See 8 U.S.C.

19 § 1227(a)(2). The INA also repeatedly contemplates cooperation among state and local officers

20 and federal officials on immigration enforcement. See, e.g., id. § 1357(g) (providing that DHS

21 may enter into formal cooperative agreements with states and localities under which appropriately

22 trained and qualified state and local officers may perform specified functions of a federal immi-

23 gration officer in relation to the investigation, apprehension, or detention of aliens); id. § 1324(c)

24 (authorizing state and local law-enforcement officers to make arrests for violations of the INA’s

25 prohibition against smuggling, transporting, or harboring aliens); id. § 1252c (authorizing state

26 and local officers to arrest certain felons who have unlawfully returned to the United States).

27 Congress also contemplates the federal detention of certain aliens upon their release from state or

28 local custody, see id. § 1226(c), further illustrating the sort of cooperation among federal, state,

Motion for Summ. Judgment; Memo.

16

No. 3:17-cv-04642-WHO

Case 3:17-cv-04642-WHO Document 46 Filed 10/31/17 Page 22 of 24

1 and local law enforcement that the Byrne JAG conditions are designed to foster. Thus, the access

2 and notice conditions bear much more than “some relationship” to the purposes of the Byrne JAG

3 Program. See Mayweathers, 314 F.3d at 1067.10

4

Third, plaintiff alleges that these conditions exceed the spending power by requiring the

5 City “to engage in unconstitutional activity such as detaining individuals without probable cause

6 in violation of the Fourth Amendment” (Dkt. No. 1 ¶ 100). The Court in Dole emphasized the

7 narrowness on this limitation on the federal spending power, noting that “the ‘independent

8 constitutional bar’ limitation . . . is not . . . a prohibition on the indirect achievement of objectives

9 which Congress is not empowered to achieve directly.” 483 U.S. at 210. Rather, the Court said,

10 this limitation “stands for the unexceptionable proposition that the power may not be used to

11 induce the States to engage in activities that would themselves be unconstitutional. Thus, for

12 example, a grant of federal funds conditioned on invidiously discriminatory state action or the

13 infliction of cruel and unusual punishment would be an illegitimate exercise of the Congress’

14 broad spending power.” Id. at 210-11.

15

The access and notice conditions do not “induce” San Francisco to violate any such

16 constitutional prohibition. As explained already, the conditions have no effect on the detention of

17 non-citizens. The FY 2017 award documents state categorically that nothing in the conditions

18 “shall be understood to authorize or require any recipient, any subrecipient at any tier, any State

19 or local government, or any other entity or individual to maintain (or detain) any individual in

20 custody beyond the date and time the individual would have been released in the absence of this

21 condition.” See Hanson Decl., Ex. B at 18, 19. The conditions only require, where a jurisdiction

22

23

10 Plaintiff argues that Congress’s elimination, during a reorganization of the Byrne JAG

24

statute, of a requirement to send information on the criminal conviction of non-citizens to federal immigration authorities suggests an intent to divorce the Program from immigration enforcement

25 (Dkt. No. 1 ¶ 39). Absent any indication of such intent in the legislative history, however, the
more reasonable assumption is that Congress simply found the provision to be unnecessary.

26 Indeed, at the same time Congress eliminated that language, it added the AAG’s discretionary

authority to “plac[e] special conditions on all grants, and [to] determin[e] priority purposes for
27 formula grants.” 34 U.S.C. § 10102(a)(6); see Violence Against Women and Department of

28

Justice Reauthorization Act of 2005, Pub. L. No. 109-162, 119 Stat. 2960 (2006), § 1152(b) (adding language to subsection (a)(6)); id. § 1111(a)(2)(C) (amending 42 U.S.C. § 3753).

Motion for Summ. Judgment; Memo.

17

No. 3:17-cv-04642-WHO

Case 3:17-cv-04642-WHO Document 46 Filed 10/31/17 Page 23 of 24

1 chooses to accept Byrne JAG funds, that the grantee give federal authorities (1) access to correc-

2 tional facilities to question non-citizens who are in the jurisdiction’s custody and (2) “as much

3 advance notice as practicable” before ending such custody. Thus, the challenged conditions raise

4 no issue under the Fourth Amendment or any other “independent constitutional bar.” See Dole,

5 483 U.S. at 210.

6

In short, the access and notice conditions in the Byrne JAG Program constitute only a

7 “relatively mild encouragement” to assist in the enforcement of immigration law. Dole, 483 U.S.

8 at 211.

9

CONCLUSION

10

For the reasons discussed above, summary judgment should be entered for the defendants

11 on all of plaintiff’s claims, which should be dismissed with prejudice.

12 Dated: October 31, 2017

13
Respectfully submitted,
14

15

CHAD A. READLER Acting Assistant Attorney General

16

JOHN R. TYLER

17

Assistant Director

18

/s/ W. Scott Simpson

19

W. SCOTT SIMPSON (Va. Bar #27487)

20

Senior Trial Counsel

21

Attorneys, Department of Justice

Civil Division, Room 7210

22

Federal Programs Branch

23

Post Office Box 883 Washington, D.C. 20044

24

Telephone: (202) 514-3495

Facsimile: (202) 616-8470

25

E-mail: scott.simpson@usdoj.gov

26

COUNSEL FOR DEFENDANTS

27

28

Motion for Summ. Judgment; Memo.

18

No. 3:17-cv-04642-WHO

Case 3:17-cv-04642-WHO Document 46 Filed 10/31/17 Page 24 of 24

1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28
Motion for Summ. Judgment; Memo. No. 3:17-cv-04642-WHO

JEFFERSON B. SESSIONS III, Attorney General of the United States; ALAN R. HANSON, Acting Assistant Attorney General; and U.S. DEPARTMENT OF JUSTICE
19

Case 3:17-cv-04642-WHO Document 46-1 Filed 10/31/17 Page 1 of 44
City & County of San Francisco v. Jefferson B. Sessions, et al.,
No. 3:17-cv-04642-WHO (N.D. Cal.) Defendants’ Motion for Summary Judgment
Attachment 1 Declaration of Alan R. Hanson Acting Assistant Attorney General
Office of Justice Programs U.S. Department of Justice

Case 3:17-cv-04642-WHO Document 46-1 Filed 10/31/17 Page 2 of 44

1

2

3

4

5

6

7

IN THE UNITED STATES DISTRICT COURT

8

FOR THE NORTHERN DISTRICT OF CALIFORNIA

9 CITY AND COUNTY OF SAN
FRANCISCO,
10

11

Plaintiff, v.

12
JEFFERSON B. SESSIONS III, Attorney
13 General of the United States, et al.,

No. 3:17-cv-04642-WHO
DECLARATION OF ALAN R. HANSON IN SUPPORT OF DEFENDANTS’ MOTION FOR SUMMARY JUDGMENT

14

Defendants.

15

16

1. I am the Acting Assistant Attorney General for the Office of Justice Programs (“OJP”

17 or “Office”) in the U.S. Department of Justice. I have held this position since January 30, 2017.

18 As Acting Assistant Attorney General, I am the head of OJP. This declaration is based on

19 personal knowledge and information obtained by me in the performance of my official duties.

20

2. OJP administers the Edward Byrne Memorial Justice Assistance Grant (“Byrne JAG”)

21 Program.

22

3. San Francisco, California, applied for and received an award under the Byrne JAG

23 Program for Fiscal Year (“FY”) 2016. OJP issued an award package to San Francisco setting out

24 the conditions that applied to the City’s FY 2016 Byrne JAG award; that award document is

25 Exhibit A to this declaration. San Francisco accepted all of those conditions without objection or

26 challenge.

27

4. OJP issued its Byrne JAG Local Solicitation for FY 2017 on August 3, 2017, and

28 applications were due September 5, 2017. The Office received nearly one thousand applications

Case 3:17-cv-04642-WHO Document 46-1 Filed 10/31/17 Page 3 of 44

1 under that solicitation, including an application that San Francisco submitted on September 5,

2 2017.

3

5. On August 23, 2017, OJP issued award packages to two local jurisdictions that applied

4 for FY 2017 Bryne JAG funds: the County of Greenville, South Carolina, and the City of

5 Binghamton, New York. The award document transmitted to the County of Greenville at that

6 time is Exhibit B to this declaration. That award document sets out the various conditions that

7 will apply to the FY 2017 Byrne JAG award, if the prospective recipient chooses to accept the

8 award.

9

6. I understand that in this lawsuit, San Francisco challenges the conditions that appear as

10 numbers 55 and 56 in the award document issued to the County of Greenville. The award

11 document issued to the City of Binghamton contained identical conditions 55 and 56, and, in

12 absence of any applicable court injunction, identical language for those conditions will appear in

13 all award documents issued under the FY 2017 Byrne JAG - Local Solicitation, including any

14 such award document that may be issued to San Francisco.

15

7. Other than the award notifications to the County of Greenville and the City of

16 Binghamton, all other FY 2017 Byrne JAG applications currently remain pending, including the

17 application submitted by San Francisco.

18

8. As of the execution of this declaration, the imposition of conditions 55 and 56 is

19 preliminarily enjoined nationwide by the federal district court in City of Chicago v. Sessions, No.

20 17-cv-5720 (N.D. Ill.). OJP is awaiting further developments regarding the nationwide

21 preliminary injunction in City of Chicago, and is not at this time issuing FY 2017 Byrne JAG

22 award documents.

23 /

24 /

25 /

26 /

27 /

28

2

Case 3:17-cv-04642-WHO Document 46-1 Filed 10/31/17 Page 4 of 44

Case 3:17-cv-04642-WHO Document 46-1 Filed 10/31/17 Page 5 of 44

U.S. Department of Justice Office of Justice Programs

Bureau of Justice Assistance

Office of Justice Programs

Washington, D.C. 20531

August 26, 2016

The Honorable Edwin Lee City and County of San Francisco 1 Dr. Carlton Goodlett Place Suite 496– City Hall San Francisco, CA 94102-4676
Dear Mayor Lee:
On behalf of Attorney General Loretta Lynch, it is my pleasure to inform you that the Office of Justice Programs has approved your application for funding under the FY 16 Edward Byrne Memorial Justice Assistance Grant (JAG) Program - Local Solicitation in the amount of $522,943 for City and County of San Francisco. Enclosed you will find the Grant Award and Special Conditions documents. This award is subject to all administrative and financial requirements, including the timely submission of all financial and programmatic reports, resolution of all interim audit findings, and the maintenance of a minimum level of cash-on-hand. Should you not adhere to these requirements, you will be in violation of the terms of this agreement and the award will be subject to termination for cause or other administrative action as appropriate.
If you have questions regarding this award, please contact:
- Program Questions, Gale Farquhar, Program Manager at (202) 598-9522; and
- Financial Questions, the Office of the Chief Financial Officer, Customer Service Center (CSC) at (800) 458-0786, or you may contact the CSC at ask.ocfo@usdoj.gov.
Congratulations, and we look forward to working with you.
Sincerely,

Denise O'Donnell Director
Enclosures

Exhibit A

Case 3:17-cv-04642-WHO Document 46-1 Filed 10/31/17 Page 6 of 44
OFFICE FOR CIVIL RIGHTS Office of Justice Programs U.S. Department of Justice
810 7th Street, NW Washington, DC 20531
Tel: (202) 307-0690 TTY: (202) 307-2027 E-mail: askOCR@usdoj.gov Website: www.ojp.usdoj.gov/ocr
August 26, 2016
The Honorable Edwin Lee City and County of San Francisco 1 Dr. Carlton Goodlett Place Suite 496– City Hall San Francisco, CA 94102-4676
Dear Mayor Lee:
Congratulations on your recent award. In establishing financial assistance programs, Congress linked the receipt of federal funding to compliance with federal civil rights laws. The Office for Civil Rights (OCR), Office of Justice Programs (OJP), U.S. Department of Justice (DOJ) is responsible for ensuring that recipients of financial assistance from the OJP, the Office of Community Oriented Policing Services (COPS), and the Office on Violence Against Women (OVW) comply with the applicable federal civil rights laws. We at the OCR are available to help you and your organization meet the civil rights requirements that come with DOJ funding.
Ensuring Access to Federally Assisted Programs
Federal laws that apply to recipients of financial assistance from the DOJ prohibit discrimination on the basis of race, color, national origin, religion, sex, or disability in funded programs or activities, not only in employment but also in the delivery of services or benefits. A federal law also prohibits recipients from discriminating on the basis of age in the delivery of services or benefits.
In March of 2013, President Obama signed the Violence Against Women Reauthorization Act of 2013. The statute amends the Violence Against Women Act of 1994 (VAWA) by including a nondiscrimination grant condition that prohibits discrimination based on actual or perceived race, color, national origin, religion, sex, disability, sexual orientation, or gender identity. The new nondiscrimination grant condition applies to certain programs funded after October 1, 2013. The OCR and the OVW have developed answers to some frequently asked questions about this provision to assist recipients of VAWA funds to understand their obligations. The Frequently Asked Questions are available at http://ojp.gov/about/ocr/vawafaqs.htm.
Enforcing Civil Rights Laws
All recipients of federal financial assistance, regardless of the particular funding source, the amount of the grant award, or the number of employees in the workforce, are subject to prohibitions against unlawful discrimination. Accordingly, the OCR investigates recipients that are the subject of discrimination complaints from both individuals and groups. In addition, based on regulatory criteria, the OCR selects a number of recipients each year for compliance reviews, audits that require recipients to submit data showing that they are providing services equitably to all segments of their service population and that their employment practices meet equal opportunity standards.

Case 3:17-cv-04642-WHO Document 46-1 Filed 10/31/17 Page 7 of 44
Providing Services to Limited English Proficiency (LEP) Individuals
In accordance with DOJ guidance pertaining to Title VI of the Civil Rights Act of 1964, 42 U.S.C. § 2000d, recipients of federal financial assistance must take reasonable steps to provide meaningful access to their programs and activities for persons with limited English proficiency (LEP). See U.S. Department of Justice, Guidance to Federal Financial Assistance Recipients Regarding Title VI Prohibition Against National Origin Discrimination Affecting Limited English Proficient Persons, 67 Fed. Reg. 41,455 (2002). For more information on the civil rights responsibilities that recipients have in providing language services to LEP individuals, please see the website http://www.lep.gov.
Ensuring Equal Treatment for Faith-Based Organizations
The DOJ regulation, Equal Treatment for Faith-Based Organizations, 28 C.F.R. pt. 38, requires State Administering Agencies (SAAs) to treat faith-based organizations the same as any other applicant or recipient. The regulation prohibits SAAs from making awards or grant administration decisions on the basis of an organization's religious character or affiliation, religious name, or the religious composition of its board of directors.
The regulation also prohibits faith-based organizations from using financial assistance from the DOJ to fund inherently (or explicitly) religious activities. While faith-based organizations can engage in non-funded inherently religious activities, they must hold them separately from the program funded by the DOJ, and recipients cannot compel beneficiaries to participate in them. The Equal Treatment Regulation also makes clear that organizations participating in programs funded by the DOJ are not permitted to discriminate in the provision of services on the basis of a beneficiary's religion. For more information on the regulation, please see the OCR's website at http://www.ojp.usdoj.gov/about/ocr/equal_fbo.htm.
SAAs and faith-based organizations should also note that the Omnibus Crime Control and Safe Streets Act (Safe Streets Act) of 1968, as amended, 42 U.S.C. § 3789d(c); the Victims of Crime Act of 1984, as amended, 42 U.S.C. § 10604(e); the Juvenile Justice and Delinquency Prevention Act of 1974, as amended, 42 U.S.C. § 5672(b); and VAWA, Pub. L. No. 113-4, sec. 3(b)(4), 127 Stat. 54, 61-62 (to be codified at 42 U.S.C. § 13925(b)(13)) contain prohibitions against discrimination on the basis of religion in employment. Despite these nondiscrimination provisions, the DOJ has concluded that it may construe the Religious Freedom Restoration Act (RFRA) on a case-bycase basis to permit some faith-based organizations to receive DOJ funds while taking into account religion when hiring staff, even if the statute that authorizes the funding program generally forbids recipients from considering religion in employment decisions. Please consult with the OCR if you have any questions about the regulation or the application of RFRA to the statutes that prohibit discrimination in employment.
Using Arrest and Conviction Records in Making Employment Decisions
The OCR issued an advisory document for recipients on the proper use of arrest and conviction records in making hiring decisions. See Advisory for Recipients of Financial Assistance from the U.S. Department of Justice on the U.S. Equal Employment Opportunity Commission's Enforcement Guidance: Consideration of Arrest and Conviction Records in Employment Decisions Under Title VII of the Civil Rights Act of 1964 (June 2013), available at http://www.ojp.usdoj.gov//about/ocr/pdfs/UseofConviction_Advisory.pdf. Recipients should be mindful that the misuse of arrest or conviction records to screen either applicants for employment or employees for retention or promotion may have a disparate impact based on race or national origin, resulting in unlawful employment discrimination. In light of the Advisory, recipients should consult local counsel in reviewing their employment practices. If warranted, recipients should also incorporate an analysis of the use of arrest and conviction records in their Equal Employment Opportunity Plans (EEOPs) (see below).
Complying with the Safe Streets Act
An organization that is a recipient of financial assistance subject to the nondiscrimination provisions of the Safe Streets Act, must meet two obligations: (1) complying with the federal regulation pertaining to the development of an EEOP (see 28 C.F.R. pt. 42, subpt. E) and (2) submitting to the OCR findings of discrimination (see 28 C.F.R. §§ 42.204(c), .205(c)(5)).

Case 3:17-cv-04642-WHO Document 46-1 Filed 10/31/17 Page 8 of 44
Meeting the EEOP Requirement 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, your organization must complete and submit Section A of the Certification Form, which is available online at http://www.ojp.usdoj.gov/about/ocr/pdfs/cert.pdf. If your organization is a government agency or private business and receives an award of $25,000 or more, but less than $500,000, 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 (formerly called an EEOP Short Form), but it does not have to submit the report to the OCR for review. Instead, your organization has to maintain the Utilization Report on file and make it available for review on request. In addition, your organization has to complete Section B of the Certification Form and return it to the OCR. The Certification Form is available at http://www.ojp.usdoj.gov/about/ocr/pdfs/cert.pdf. If your organization is a government agency or private business and has received an award for $500,000 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 (formerly called an EEOP Short Form) and submit it to the OCR for review within sixty days from the date of this letter. For assistance in developing a Utilization Report, please consult the OCR's website at http://www.ojp.usdoj.gov/about/ocr/eeop.htm. In addition, your organization has to complete Section C of the Certification Form and return it to the OCR. The Certification Form is available at http://www.ojp.usdoj.gov/about/ocr/pdfs/cert.pdf. To comply with the EEOP requirements, you may request technical assistance from an EEOP specialist at the OCR by telephone at (202) 307-0690, by TTY at (202) 307-2027, or by e-mail at EEOsubmisson@usdoj.gov.
Meeting the Requirement to Submit Findings of Discrimination If in the three years prior to the date of the grant award, your organization has received an adverse finding of discrimination based on race, color, national origin, religion, or sex, after a due-process hearing, from a state or federal court or from a state or federal administrative agency, your organization must send a copy of the finding to the OCR. Ensuring the Compliance of Subrecipients SAAs must have standard assurances to notify subrecipients of their civil rights obligations, written procedures to address discrimination complaints filed against subrecipients, methods to monitor subrecipients' compliance with civil rights requirements, and a program to train subrecipients on applicable civil rights laws. In addition, SAAs must submit to the OCR every three years written Methods of Administration (MOA) that summarize the policies and procedures that they have implemented to ensure the civil rights compliance of subrecipients. For more information on the MOA requirement, see http://www.ojp.usdoj.gov/funding/other_requirements.htm. If the OCR can assist you in any way in fulfilling your organization's civil rights responsibilities as a recipient of federal financial assistance, please contact us.
Sincerely,
Michael L. Alston Director cc: Grant Manager
Financial Analyst

Case 3:17-cv-04642-WHO Document 46-1 Filed 10/31/17 Page 9 of 44

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

Grant

PAGE 1 OF 13

1. RECIPIENT NAME AND ADDRESS (Including Zip Code) City and County of San Francisco 1 Dr. Carlton Goodlett PlaceSuite 496– City Hall San Francisco, CA 94102-4676
2a. GRANTEE IRS/VENDOR NO.
2b. GRANTEE DUNS NO.
3. PROJECT TITLE FY 16 JAG Program

4. AWARD NUMBER: 2016-DJ-BX-0898

5. PROJECT PERIOD: FROM BUDGET PERIOD: FROM

10/01/2015 TO 09/30/2019 10/01/2015 TO 09/30/2019

6. AWARD DATE 08/26/2016
8. SUPPLEMENT NUMBER 00

7. ACTION Initial

9. PREVIOUS AWARD AMOUNT 10. AMOUNT OF THIS AWARD

$ 0 $ 522,943

11. TOTAL AWARD

$ 522,943

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 FY16(BJA - JAG) 42 USC 3750, et seq.
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
Denise O'Donnell Director

GRANTEE ACCEPTANCE 18. TYPED NAME AND TITLE OF AUTHORIZED GRANTEE OFFICIAL
Edwin Lee 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. RDJUGT0505

X

B

DJ

80

00

00

522943

OJP FORM 4000/2 (REV. 5-87) PREVIOUS EDITIONS ARE OBSOLETE. OJP FORM 4000/2 (REV. 4-88)

Case 3:17-cv-04642-WHO Document 46-1 Filed 10/31/17 Page 10 of 44

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

AWARD CONTINUATION SHEET
Grant

PAGE 2 OF 13

PROJECT NUMBER 2016-DJ-BX-0898

AWARD DATE

08/26/2016

SPECIAL CONDITIONS
1. 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 the Department of Justice (DOJ) in 2 C.F.R. Part 2800 (together, the "Part 200 Uniform Requirements") apply to this 2016 award from the Office of Justice Programs (OJP).
The Part 200 Uniform Requirements were first adopted by DOJ on December 26, 2014. If this 2016 award supplements funds previously awarded by OJP under the same award number (e.g., funds awarded in 2014 or earlier years), 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 2016 award.
For more information and resources on the Part 200 Uniform Requirements as they relate to OJP awards and subawards ("subgrants"), see the Office of Justice Programs (OJP) website at http://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.
2. Compliance with DOJ Grants Financial Guide
The recipient agrees to comply with the Department of Justice Grants Financial Guide as posted on the OJP website (currently, the "2015 DOJ Grants Financial Guide"), including any updated version that may be posted during the period of performance.
3. 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 http://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.

OJP FORM 4000/2 (REV. 4-88)

Case 3:17-cv-04642-WHO Document 46-1 Filed 10/31/17 Page 11 of 44

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

AWARD CONTINUATION SHEET
Grant

PAGE 3 OF 13

PROJECT NUMBER 2016-DJ-BX-0898

AWARD DATE

08/26/2016

SPECIAL CONDITIONS 4. 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.
5. 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 DOJ awarding agency, must seek a budget-modification or change-of-project-scope grant adjustment notice (GAN) to eliminate any inappropriate duplication of funding.
6. Requirements related to System for Award Management and Unique Entity Identifiers
The recipient must comply with applicable requirements regarding the System for Award Management (SAM), currently accessible at http://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 http://ojp.gov/funding/Explore/SAM.htm (Award condition: System for Award Management (SAM) and Universal Identifier Requirements), and are incorporated by reference here.
This special 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).
7. 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 http://ojp.gov/funding/Explore/SubawardAuthorization.htm (Award condition: Award Condition: All subawards ("subgrants") must have specific federal authorization), and are incorporated by reference here.

OJP FORM 4000/2 (REV. 4-88)

Case 3:17-cv-04642-WHO Document 46-1 Filed 10/31/17 Page 12 of 44

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

AWARD CONTINUATION SHEET
Grant

PAGE 4 OF 13

PROJECT NUMBER 2016-DJ-BX-0898

AWARD DATE

08/26/2016

SPECIAL CONDITIONS
8. 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 http://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.
9. 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 http://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.
10. 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").
11. Requirement for data on performance and effectiveness under the award
The recipient must collect and maintain data that measure the performance and effectiveness of activities 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, and other applicable laws.
12. 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 http://ojp.gov/funding/ojptrainingguidingprinciples.htm.

OJP FORM 4000/2 (REV. 4-88)

Case 3:17-cv-04642-WHO Document 46-1 Filed 10/31/17 Page 13 of 44

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

AWARD CONTINUATION SHEET
Grant

PAGE 5 OF 13

PROJECT NUMBER 2016-DJ-BX-0898

AWARD DATE

08/26/2016

SPECIAL CONDITIONS 13. 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.
14. 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.
15. 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.
16. 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 http://www.ecfr.gov/cgibin/ECFR?page=browse), by browsing to Title 28-Judicial Administration, Chapter 1, Part 38, under e-CFR "current" data.
17. Restrictions on "lobbying"
Federal funds 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.
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 this prohibition, 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-04642-WHO Document 46-1 Filed 10/31/17 Page 14 of 44

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

AWARD CONTINUATION SHEET
Grant

PAGE 6 OF 13

PROJECT NUMBER 2016-DJ-BX-0898

AWARD DATE

08/26/2016

SPECIAL CONDITIONS
18. Compliance with general appropriations-law restrictions on the use of federal funds (FY 2016)
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, 2016, are set out at http://ojp.gov/funding/Explore/FY2016AppropriationsLawRestrictions.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.
19. Reporting Potential Fraud, Waste, and Abuse, and Similar Misconduct
The recipient and any subrecipients ("subgrantees") 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 http://www.usdoj.gov/oig.

OJP FORM 4000/2 (REV. 4-88)

Case 3:17-cv-04642-WHO Document 46-1 Filed 10/31/17 Page 15 of 44

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

AWARD CONTINUATION SHEET
Grant

PAGE 7 OF 13

PROJECT NUMBER 2016-DJ-BX-0898

AWARD DATE

08/26/2016

SPECIAL CONDITIONS
20. 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-04642-WHO Document 46-1 Filed 10/31/17 Page 16 of 44

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

AWARD CONTINUATION SHEET
Grant

PAGE 8 OF 13

PROJECT NUMBER 2016-DJ-BX-0898

AWARD DATE

08/26/2016

SPECIAL CONDITIONS
21. Compliance with 41 U.S.C. 4712 (including prohibitions on reprisal; notice to employees)
The recipient 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.
22. 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.
23. The recipient agrees to comply with OJP grant monitoring guidelines, protocols, and procedures, and to cooperate with BJA and OCFO on all grant monitoring requests, including requests related to desk reviews, enhanced programmatic desk reviews, and/or site visits. The recipient agrees to provide to BJA and OCFO all documentation necessary to complete monitoring tasks, including documentation related to any subawards made under this award. Further, the recipient agrees to abide by reasonable deadlines set by BJA and OCFO for providing the requested documents. Failure to cooperate with BJA's/OCFO's grant monitoring activities may result in sanctions affecting the recipient's DOJ awards, including, but not limited to: withholdings and/or other restrictions on the recipient's access to grant funds; referral to the Office of the Inspector General for audit review; designation of the recipient as a DOJ High Risk grantee; or termination of an award(s).
24. The recipient agrees to comply with applicable requirements to report first-tier subawards 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 of award funds. Such data will be submitted to the FFATA Subaward Reporting System (FSRS). The details of recipient obligations, which derive from the Federal Funding Accountability and Transparency Act of 2006 (FFATA), are posted on the Office of Justice Programs web site at http://ojp.gov/funding/Explore/FFATA.htm (Award condition: Reporting Subawards and Executive Compensation), and are incorporated by reference here. This condition, and its reporting requirement, does not apply to grant awards 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).
25. 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.

OJP FORM 4000/2 (REV. 4-88)

Case 3:17-cv-04642-WHO Document 46-1 Filed 10/31/17 Page 17 of 44

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

AWARD CONTINUATION SHEET
Grant

PAGE 9 OF 13

PROJECT NUMBER 2016-DJ-BX-0898

AWARD DATE

08/26/2016

SPECIAL CONDITIONS
26. In order to promote information sharing and enable interoperability among disparate systems across the justice and public safety community, OJP requires the grantee to comply with DOJ's Global Justice Information Sharing Initiative (DOJ's Global) guidelines and recommendations for this particular grant. Grantee shall conform to the Global Standards Package (GSP) and all constituent elements, where applicable, as described at: http://www.it.ojp.gov/gsp_grantcondition. Grantee 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.
27. 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 grantee 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.
28. The recipient agrees that any information technology system funded or supported by OJP funds will 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). Recipient may not satisfy such a fine with federal funds.
29. Grantee agrees to comply with the requirements of 28 C.F.R. Part 46 and all Office of Justice Programs policies and procedures regarding the protection of human research subjects, including obtainment of Institutional Review Board approval, if appropriate, and subject informed consent.
30. Grantee agrees to comply with all confidentiality requirements of 42 U.S.C. section 3789g and 28 C.F.R. Part 22 that are applicable to collection, use, and revelation of data or information. Grantee further agrees, as a condition of grant approval, to submit a Privacy Certificate that is in accord with requirements of 28 C.F.R. Part 22 and, in particular, section 22.23.
31. Award recipients must verify 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.
32. The grantee agrees that within 120 days of award acceptance, each current member of a law enforcement task force funded with these funds who is a task force commander, agency executive, task force officer, or other task force member of equivalent rank, will complete required online (internet-based) task force training. Additionally, all future task force members are required to complete this training once during the life of this award, or once every four years if multiple awards include this requirement. The training is provided free of charge online through BJA's Center for Task Force Integrity and Leadership (www.ctfli.org). This 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. When BJA funding supports a task force, a task force personnel roster should be compiled and maintained, along with course completion certificates, by the grant recipient. Additional information is available regarding this required training and access methods via BJA's web site and the Center for Task Force Integrity and Leadership (www.ctfli.org).
33. The recipient agrees to participate in BJA-sponsored training events, technical assistance events, or conferences held by BJA or its designees, upon BJA's request.

OJP FORM 4000/2 (REV. 4-88)

Case 3:17-cv-04642-WHO Document 46-1 Filed 10/31/17 Page 18 of 44

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

AWARD CONTINUATION SHEET
Grant

PAGE 10 OF 13

PROJECT NUMBER 2016-DJ-BX-0898

AWARD DATE

08/26/2016

SPECIAL CONDITIONS
34. 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 Office of Justice Programs (OJP) program office prior to obligation or expenditure of such funds.
35. The grantee agrees to 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 grant funds, either directly by the grantee or by a subgrantee. Accordingly, the grantee 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 grant, the grantee agrees to contact BJA.
The grantee understands that this special condition applies to its following new activities whether or not they are being specifically funded with these grant funds. That is, as long as the activity is being conducted by the grantee, a subgrantee, or any third party and the activity needs to be undertaken in order to use these grant funds, this special condition must first be met. The activities covered by this special 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 grantee 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 grantee further understands and agrees to the requirements for implementation of a Mitigation Plan, as detailed at http://www.ojp.usdoj.gov/BJA/resource/nepa.html, for programs relating to methamphetamine laboratory operations.
Application of This Special Condition to Grantee's Existing Programs or Activities: For any of the grantee's or its subgrantees' existing programs or activities that will be funded by these grant funds, the grantee, 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.
36. The recipient 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 grant funds in the trust fund (including any interest earned) during the period of the grant and expend within 90 days thereafter. Any unobligated or unexpended funds, including interest earned, must be returned to the Office of Justice Programs at the time of closeout.
37. 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 Bulletproof Vest Partnership (BVP) program.

OJP FORM 4000/2 (REV. 4-88)

Case 3:17-cv-04642-WHO Document 46-1 Filed 10/31/17 Page 19 of 44

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

AWARD CONTINUATION SHEET
Grant

PAGE 11 OF 13

PROJECT NUMBER 2016-DJ-BX-0898

AWARD DATE

08/26/2016

SPECIAL CONDITIONS
38. Ballistic-resistant and stab-resistant 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 vests have been tested and found to comply with applicable National Institute of Justice ballistic or stab standards and are listed on the NIJ Compliant Body Armor Model List (http://nij.gov). In addition, ballistic-resistant and stab-resistant body armor purchased must be Americanmade. The latest NIJ standard information can be found here: http://www.nij.gov/topics/technology/body-armor/safetyinitiative.htm.
39. The recipient agrees to submit a signed certification that all law enforcement agencies receiving vests purchased with JAG funds have a written "mandatory wear" policy in effect. Fiscal agents and state agencies must keep signed certifications on file for any subrecipients planning to utilize JAG funds for ballistic-resistant and stab-resistant body armor purchases. This policy must be in place for at least all uniformed officers before any JAG funding can be used by the 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.
40. The recipient agrees to monitor subawards under this JAG award in accordance with all applicable statutes, regulations, OMB circulars, and guidelines, including the DOJ Financial Guide, and to include the applicable conditions of this award in any subaward. The recipient is responsible for oversight of subrecipient spending and monitoring of specific outcomes and benefits attributable to use of JAG funds by subrecipients. The recipient agrees to submit, upon request, documentation of its policies and procedures for monitoring of subawards under this award.
41. The recipient agrees that funds received under this award will not be used to supplant State or local funds, but 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.
42. Award recipients must submit quarterly Federal Financial Reports (SF-425) and semi-annual performance reports through GMS (https://grants.ojp.usdoj.gov). Consistent with the Department's responsibilities under the Government Performance and Results Act (GPRA), P.L. 103-62, applicants who receive funding under this solicitation must provide data that measure the results of their work. Therefore, quarterly performance metrics reports must be submitted 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.
43. Any law enforcement agency receiving direct or sub-awarded JAG funding must submit quarterly accountability metrics data related to training that officers have received on the use of force, racial and ethnic bias, de-escalation of conflict, and constructive engagement with the public.
44. BJA strongly encourages the recipient to submit annual (or more frequent) JAG success stories. To submit a success story, sign in to your My BJA account at https://www.bja.gov/Login.aspx to access the Success Story Submission form. If you do not yet have a My BJA account, please register at https://www.bja.gov/profile.aspx. Once you register, one of the available areas on your My BJA page will be "My Success Stories". Within this box, you will see an option to add a Success Story. Once reviewed and approved by BJA, all success stories will appear on the new BJA Success Story web page at https://www.bja.gov/SuccessStoryList.aspx.
45. Recipient understands and agrees that 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 may be accessed here: https://www.bja.gov/funding/JAGControlledPurchaseList.pdf

OJP FORM 4000/2 (REV. 4-88)

Case 3:17-cv-04642-WHO Document 46-1 Filed 10/31/17 Page 20 of 44

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

AWARD CONTINUATION SHEET
Grant

PAGE 12 OF 13

PROJECT NUMBER 2016-DJ-BX-0898

AWARD DATE

08/26/2016

SPECIAL CONDITIONS
46. The recipient understands that, pursuant to recommendation 2.1 of Executive Order 13688, law enforcement agencies that acquire controlled equipment through Federal programs 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 agrees to provide a copy of the General Policing Standards and Specific Controlled Equipment Standards, and any related policies and protocols.
47. Recipient understands and agrees that the purchase or acquisition of 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, with award funds by an agency will trigger a requirement that the agency 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 make that information available to BJA upon request. Details about what information must be collected and retained may be accessed here: https://www.whitehouse.gov/sites/default/files/docs/le_equipment_wg_final_report_final.pdf
48. Recipient understands and agrees that failure to comply with conditions related to Prohibited or Controlled Expenditures may result in a prohibition from further Controlled Expenditure approval under this or other federal awards.
49. Recipient understands and agrees that 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.
50. Recipient understands and agrees that, notwithstanding 2 CFR § 200.313, no equipment listed on the Controlled Expenditure List that is purchased under this award 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 was requesting approval to use award fund 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.
Recipient further understands and agrees to notify BJA prior to the disposal of any items on the Controlled Expenditure List purchased under this award, and to abide by any applicable laws and regulations in such disposal.

OJP FORM 4000/2 (REV. 4-88)

Case 3:17-cv-04642-WHO Document 46-1 Filed 10/31/17 Page 21 of 44

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

AWARD CONTINUATION SHEET
Grant

PAGE 13 OF 13

PROJECT NUMBER 2016-DJ-BX-0898

AWARD DATE

08/26/2016

SPECIAL CONDITIONS
51. Recipient integrity and performance matters: Requirement to report information on certain civil, criminal, and administrative proceedings to SAM and FAPIIS
The recipient must comply with any and all applicable requirements regarding reporting of information on civil, criminal, and administrative proceedings connected with (or connected to the performance of) either this OJP award or any other grant, cooperative agreement, or procurement contract from the federal government. Under certain circumstances, recipients of OJP awards are required to report information about such proceedings, through the federal System for Award Management (known as "SAM"), to the designated federal integrity and performance system (currently, "FAPIIS").
The details of recipient obligations regarding the required reporting (and updating) of information on certain civil, criminal, and administrative proceedings to the federal designated integrity and performance system (currently, "FAPIIS") within SAM are posted on the OJP web site at http://ojp.gov/funding/FAPIIS.htm (Award condition: Recipient Integrity and Performance Matters, including Recipient Reporting to FAPIIS), and are incorporated by reference here.

OJP FORM 4000/2 (REV. 4-88)

Case 3:17-cv-04642-WHO Document 46-1 Filed 10/31/17 Page 22 of 44
U.S. Department of Justice Office of Justice Programs Bureau of Justice Assistance

Washington, D.C. 20531

Memorandum To: Official Grant File

From:

Orbin Terry, NEPA Coordinator

Subject:

Incorporates NEPA Compliance in Further Developmental Stages for City and County of San Francisco

The Edward Byrne Memorial Justice Assistance Grant Program (JAG) allows states and local governments to support a broad range of activities to prevent and control crime and to improve the criminal justice system, some of which could have environmental impacts. All recipients of JAG funding must assist BJA in complying with NEPA and other related federal environmental impact analyses requirements in the use of grant funds, whether the funds are used directly by the grantee or by a subgrantee or third party. Accordingly, prior to obligating funds for any of the specified activities, the grantee must first determine if any of the specified activities will be funded by the grant.
The specified activities requiring environmental analysis are: a. New construction; b. Any 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.
Complying with NEPA may require the preparation of an Environmental Assessment and/or an Environmental Impact Statement, as directed by BJA. Further, for programs relating to methamphetamine laboratory operations, the preparation of a detailed Mitigation Plan will be required. For more information about Mitigation Plan requirements, please see https://www.bja.gov/Funding/nepa.html.

Please be sure to carefully review the grant conditions on your award document, as it may contain more specific information about environmental compliance.

Case 3:17-cv-04642-WHO Document 46-1 Filed 10/31/17 Page 23 of 44

Case 3:17-cv-04642-WHO Document 46-1 Filed 10/31/17 Page 24 of 44

CasCea: s1e:137:-1c7v-c0v5-7024064D2o-cWuHmOentD#o: c3u2m-1eFnitle4d6:-108/F2i4le/1d71P0a/3g1e/147ofP5a8gPea2g5eIoDf 4#4:469

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)

Exhibit B

CasCea: s1e:137:-1c7v-c0v5-7024064D2o-cWuHmOentD#o: c3u2m-1eFnitle4d6:-108/F2i4le/1d71P0a/3g1e/157ofP5a8gPea2g6eIoDf 4#4:470

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)

CasCea: s1e:137:-1c7v-c0v5-7024064D2o-cWuHmOentD#o: c3u2m-1eFnitle4d6:-108/F2i4le/1d71P0a/3g1e/167ofP5a8gPea2g7eIoDf 4#4:471

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)

CasCea: s1e:137:-1c7v-c0v5-7024064D2o-cWuHmOentD#o: c3u2m-1eFnitle4d6:-108/F2i4le/1d71P0a/3g1e/177ofP5a8gPea2g8eIoDf 4#4:472

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)

CasCea: s1e:137:-1c7v-c0v5-7024064D2o-cWuHmOentD#o: c3u2m-1eFnitle4d6:-108/F2i4le/1d71P0a/3g1e/187ofP5a8gPea2g9eIoDf 4#4:473

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)

CasCea: s1e:137:-1c7v-c0v5-7024064D2o-cWuHmOentD#o: c3u2m-1eFnitle4d6:-108/F2i4le/1d71P0a/3g1e/197ofP5a8gPea3g0eIoDf 4#4:474

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)

CaseC:a1s:e173-:c1v7--0c5v7-02406D42o-cWumHeOnt #D:o3c2u-m1eFnilte4d6: -018/2F4il/e1d7 1P0a/g3e1/107 ofP5a8gePa3g1eoIDf 4#4:475

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)

CaseC:a1s:e173-:c1v7--0c5v7-02406D42o-cWumHeOnt #D:o3c2u-m1eFnilte4d6: -018/2F4il/e1d7 1P0a/g3e1/117 ofP5a8gePa3g2eoIDf 4#4:476

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)

CaseC:a1s:e173-:c1v7--0c5v7-02406D42o-cWumHeOnt #D:o3c2u-m1eFnilte4d6: -018/2F4il/e1d7 1P0a/g3e1/127 ofP5a8gePa3g3eoIDf 4#4:477

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)

CaseC:a1s:e173-:c1v7--0c5v7-02406D42o-cWumHeOnt #D:o3c2u-m1eFnilte4d6: -018/2F4il/e1d7 1P0a/g3e1/137 ofP5a8gePa3g4eoIDf 4#4:478

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)

CaseC:a1s:e173-:c1v7--0c5v7-02406D42o-cWumHeOnt #D:o3c2u-m1eFnilte4d6: -018/2F4il/e1d7 1P0a/g3e1/147 ofP5a8gePa3g5eoIDf 4#4:479

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)

CaseC:a1s:e173-:c1v7--0c5v7-02406D42o-cWumHeOnt #D:o3c2u-m1eFnilte4d6: -018/2F4il/e1d7 1P0a/g3e1/157 ofP5a8gePa3g6eoIDf 4#4:480

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)

CaseC:a1s:e173-:c1v7--0c5v7-02406D42o-cWumHeOnt #D:o3c2u-m1eFnilte4d6: -018/2F4il/e1d7 1P0a/g3e1/167 ofP5a8gePa3g7eoIDf 4#4:481

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)

CaseC:a1s:e173-:c1v7--0c5v7-02406D42o-cWumHeOnt #D:o3c2u-m1eFnilte4d6: -018/2F4il/e1d7 1P0a/g3e1/17 ofP5a8gePa3g8eoIDf 4#4:482

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)

CaseC:a1s:e173-:c1v7--0c5v7-02406D42o-cWumHeOnt #D:o3c2u-m1eFnilte4d6: -018/2F4il/e1d7 1P0a/g3e1/187 ofP5a8gePa3g9eoIDf 4#4:483

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)

CaseC:a1s:e173-:c1v7--0c5v7-02406D42o-cWumHeOnt #D:o3c2u-m1eFnilte4d6: -018/2F4il/e1d7 1P0a/g3e1/197 ofP5a8gePa4g0eoIDf 4#4:484

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)

CaseC:a1s:e173-:c1v7--0c5v7-02406D42o-cWumHeOnt #D:o3c2u-m1eFnilte4d6: -018/2F4il/e1d7 1P0a/g3e1/2107 ofP5a8gePa4g1eoIDf 4#4:485

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)

CaseC:a1s:e173-:c1v7--0c5v7-02406D42o-cWumHeOnt #D:o3c2u-m1eFnilte4d6: -018/2F4il/e1d7 1P0a/g3e1/2117 ofP5a8gePa4g2eoIDf 4#4:486

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)

CaseC:a1s:e173-:c1v7--0c5v7-02406D42o-cWumHeOnt #D:o3c2u-m1eFnilte4d6: -018/2F4il/e1d7 1P0a/g3e1/2127 ofP5a8gePa4g3eoIDf 4#4:487

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)

CaseC:a1s:e173-:c1v7--0c5v7-02406D42o-cWumHeOnt #D:o3c2u-m1eFnilte4d6: -018/2F4il/e1d7 1P0a/g3e1/2137 ofP5a8gePa4g4eoIDf 4#4:488

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-04642-WHO Document 46-2 Filed 10/31/17 Page 1 of 17
City & County of San Francisco v. Jefferson B. Sessions, et al.,
No. 3:17-cv-04642-WHO (N.D. Cal.) Defendants’ Motion for Summary Judgment
Attachment 2
Mem. from Michael E. Horowitz, 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 31, 2016)

Case 3:17-cv-04642-WHO Document 46-2 Filed 10/31/17 Page 2 of 17

~~". .

U.S. Department of Justice

'\ . .

Office o f the Inspector General

The "Law Enforcement Sensitive" markings on this document were removed as a result of a

sensitivity review and determination by the U.S. Department of Horneland Security, Immigration

and Customs Enforcement.
'jAW ENFORCEMENT SENSITp.lE

May 3 1, 2016 [Re-posted to oigjustice.gov on September 23, 2016, due to a corrected entry in the Appendix, see page 12.]
MEMORANDUM FOR KAROL V. MASON ASS ISTANT ATTORNEY GENERAL
~HE OFFICE OF JUSTICE PROGRAMS

FROM:

MICHAEL E. HOROWI INSPECTOR GENE RAL

SUBJECT:

Departm ent of Ju stice Referral of Allegatio ns of Pote ntial Violation s of 8 U.S.C. § 1373 by Grant Rec ipients

Thi s is in res po nse to you r e- m ail dated April 8, 20 16, wherein you advised the Office of the In spector Ge n eral (OIG) t hat th e Office of Justice Programs (OJP) had "received information th a t indicates that several jurisd ictions [receivin g Q,JP and Office of Viol en ce Against Wo man (OVW) gra nt funds] may be in violation of 8 U.S.C. § 1373 ." With th e e-mail , you provided the OIG a spreadsheet detailing Depa rtm ent grants received by ove r 140 state and local jurisdictions a nd requested that the 01G "investigate th e a llegation s that th e jurisdic tions re fl ected in th e attac hed s pread s heet, who are recipients of funding from th e De partment of Jus tice, are in violation o f 8 U.S.C. Section 1373 ." In a d dition to the spreadsheet, you provided the OIG with a le tter, dated Fe brua ry 26, 20 16, to Attorn ey General Loretta E. Lyn ch from Congressman John Culberson , Cha irman of the House Appropriations Su bcommittee on Co mm erce, Justice, Scien ce, a nd Re lated Agen c ies, regarding whether Departme n t gran t recipie n ts were com plying with fed eral law, particularly 8 U.S.C. § 1373 (Section 1373). Attached to C h airman Culberson's letter to the Attorney Ge neral was a study co nducted by th e Center for Immigration S tudies (C IS) in January 2016, which concluded tha t there are ove r 300 "sanctuary" ju risdic t ions th at refuse to comply w ith U.S. Immigration and Customs E nfo rcement (ICE) detaine rs o r otherwise impede in fo rmatio n sharing with fed e ra l immigration officia ls . l

! Your e-mail also re ferenced a nd attached the 0I0's Jan uary 2007 report, Cooperation oj SCAAP 1State Criminal A/ien Assista nce Program) Recipients in the Removal of Criminal Aliel1s Jrom the Uniled States. In that Congressionally-mandated report, the 0 10 was asked , among other things, to assess whether entities receiving SCAA P funds were "full y cooperating" with the Depart ment of Homeland Secu ri ty's efforts to remove undoc umented criminal aliens from the United S tate s, and whether SCAA P recipie n ts had in effect policies that violated Section

In\W ENFOROEMENT SENSITIVE

Case 3:17-cv-04642-WHO Document 46-2 Filed 10/31/17 Page 3 of 17
LAW ENFORCEMENT SENSITIVE 

The purpose of this memorandum is to update you on the steps we have undertaken to address your question and to provide you with the information we have developed regarding your request. Given our understanding that the Department's grant process is ongoing, we are available to discuss with you what, if any, further information you and the Department's leadership believe would be useful in addressing the concerns reflected in your e-mail.
010 Methodology
At the outset, we determined it would be impractical for the OIG to promptly assess compliance with Section 1373 by the more than 140 jurisdictions that were listed on the spreadsheet accompanying your referral. Accordingly, we judgmentally selected a sample of state and local jurisdictions from the information you provided for further review. We started by comparing the specific Jurisdictions cited in the CIS report you provided to us with the jurisdictions identified by ICE in its draft Declined Detainer Outcome Report, dated December 2, 2014.2 Additionally, we compared these lists with a draft report prepared by ICE that identified 155 jurisdictions and stated that "all jurisdictions on this list contain policies that limit or restrict cooperation with ICE and, as of Q3 FY 2015, have declined detainers."3 From this narrowed list of jurisdictions, we determined, using the spreadsheet provided with your e-mail, which jurisdictions had active OJP and OVW awards as of March 17, 2016, the date through which you provided award information, and received fiscal year (FY) 2015 State Criminal Alien Assistance Program (SCAAP) payments. Lastly, we considered, based on the spreadsheet, the total dollars awarded and the number of active grants and payments made as of March 17,
1373. As we describe later in this memorandum, the information we have learned to date during our recent work about the present matter differs significantly from what OIG personnel found nearly 10 years ago during the earlier audit. Specifically, during the 2007 audit, ICE officials commented favorably to the OIG with respect to cooperation and information flow they received from the seven selected jurisdictions, except for the City and County of San Francisco. As noted in this memorandum, we heard a very different report from ICE officials about the cooperation it is currently receiving. Additionally, our 2007 report found that the SCAAP recipients we reviewed were notifying ICE in a timely manner of aliens in custody, accepting detainers from ICE, and promptly notifying ICE of impending releases from local custody. By contrast, as described in this memorandum, all of the jurisdictions we reviewed had ordinances or policies that placed limits on cooperation with ICE in connection with at least one of the three areas assessed in 2007.
2 At the time of our sample selection we only had a draft version of this report. We later obtained an updated copy which was provided to Congress on April 16, 2016. Although it was provided to Congress, this report was also marked "Draft." The updated draft version of the report did not require us to alter our sample selection.
3 This version of the declined detainer report covered declined detainers from January 1, 2014 through June 30,2015.
2 


Case 3:17-cv-04642-WHO Document 46-2 Filed 10/31/17 Page 4 of 17
LAW ENFORCEMENT SENSITIVE 

2016, and sought to ensure that our list contained a mix of state and local jurisdictions.
Using this process, we judgmentally selected 10 state and local jurisdictions for further review: the States of Connecticut and California; City of Chicago, Illinois; Clark County, Nevada; Cook County, Illinois; Miami-Dade County, Florida; Milwaukee County, Wisconsin; Orleans Parish, Louisiana; New York, New York; and Philadelphia, Pennsylvania. These 10 jurisdictions .represent 63 percent of the total value of the active OJP and OVW awards listed on the spreadsheet as of March 17,2016, and FY 2015 SCAAP payments made by the Department.
Section 1373 states in relevant part:'
(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.
According to the legislative history contained in the House of Representatives Report, Section 1373 was intended "to give State and local officials the authority to communicate with the Immigration and Naturalization Service (INS) regarding the presence, whereabouts, and activities of illegal aliens. This section is designed to prevent any State or local law, ordinance, executive order, policy, constitutional provision, or decision of any Federal or State court that prohibits or in any way restricts any communication between State and local officials and the INS."4
4 House of Representatives Report, Immigration in the National Interest Act of 1995, (H.R. 2202), 1996, H. Rept. 104-469, https:/ /www.congress.gov/l04/crpt/hrpt469/CRPT­
3 


Case 3:17-cv-04642-WHO Document 46-2 Filed 10/31/17 Page 5 of 17
LAW ENFORCEMENT SENSITIVE 

For the 10 selected jurisdictions, we researched the local laws and policies that govern their interactions with ICE - particularly those governing the ability of the jurisdictions' officers to receive or share information with federal immigration officials. We then compared these local laws and policies to Section 1373 in order to try to determine whether they were in compliance with the federal statute. We also spoke with ICE officials in Washington, D.C., to gain their perspective on ICE's relationship with the selected jurisdictions and their views on whether the application of these laws and policies was inconsistent with Section 1373 or any other federal immigration laws.
The sections that follow include our analysis of the selected state and local laws and policies.
State and Local Cooperation with ICE
A primary and frequently cited indicator of limitations placed on cooperation by state and local jurisdictions with ICE is how the particular state or local jurisdiction handles immigration detainer requests issued by ICE, although Section 1373 does not specifically address restrictions by state or local entities on cooperation with ICE regarding detainers.5 A legal determination has been made by the Department of Homeland Security (DHS) that civil immigration detainers are voluntary requests.6 The ICE officials with whom we spoke stated that since the detainers are considered to be voluntary, they are not enforceable against jurisdictions which do not comply, and these ICE officials stated further that state and local jurisdictions throughout the United States vary significantly on how they handle such requests.
In our selected sample of state and local jurisdictions, as detailed in the Appendix, each of the 10 jurisdictions had laws or policies directly related to how those jurisdictions could respond to ICE detainers, and each limited in some way the authority of the jurisdiction to take action with regard to ICE detainers. We found that while some honor a civil immigration detainer request when the subject meets certain conditions, such as prior felony
104hrpt469-ptl.pdf (accessed May 24,2016).
5 A civil immigration detainer request serves to advise a law enforcement agency that ICE seeks custody of an alien presently in the custody of that agency, for the purpose of arresting and removing the alien. 8 C.F.R. § 287.7(a)
6 Several courts have reached a similar conclusion about the voluntary nature of ICE detainers. See Galarza v, Szalczyk et al, 745 F.3d 634 (3rd Cir. 2014) (noting that all Courts of Appeals to have considered the character of ICE detainers refer to them as "requests,» and citing numerous such decisions); and Miranda-Olivares v. Clackamas County, 2014 1414305 (D. Or. 2014).
4 


Case 3:17-cv-04642-WHO Document 46-2 Filed 10/31/17 Page 6 of 17
LAW ENFORCEMENT SENSITIVE 

convictions, gang membership, or presence on a terrorist watch list, others will not honor a civil immigration detainer request, standing alone, under any circumstances. ICE officials told us that because the requests are voluntary, local officials may also consider budgetary and other considerations that would otherwise be moot if cooperation was required under federal law.
We also found that the laws and policies in several of the 10 jurisdictions go beyond regulating responses to ICE detainers and also address, in some way, the sharing of information with federal immigration authorities. For example, a local ordinance for the City of Chicago, which is entitled "Disclosing Information Prohibited," states as follows:
Except as otherwise provided under applicable federal law, no agent or agency shall disclose information regarding the citizenship or immigration status of any person unless required to do so by legal process or such disclosure has been authorized in writing by the individual to whom such information pertains, or if such individual is a minor or is otherwise not legally competent, by such individual's parent or guardian. Chicago Code, Disclosing Infonnation Prohibited § 2-173­ 030.
The ordinance's prohibition on a city employee providing immigration status information "unless required to do so by legal process" is inconsistent with the plain language of Section 1373 prohibiting a local government from restricting a local official from sending immigration status information to ICE. The "except as otherwise provided under applicable federal law" provision, often referred to as a "savings clause," creates a potential ambiguity as to the proper construction of the Chicago ordinance and others like it because to be effective, this "savings clause" would render the ordinance null and void whenever ICE officials requested immigration status information from city employees. Given that the very purpose of the Chicago ordinance, based on our review of its history, was to restrict and largely prohibit the cooperation of city employees with ICE, we have significant questions regarding any actual effect of this "savings clause" and whether city officials consider the ordinance to be null and void in that circumstance.7
7 The New Orleans Police Department's (NOPD) policy dated February 28, 2016, and entitled "Immigration Status" also seemingly has a "savings clause" provision, but its language likewise presents concerns. In your April 8 e-mail to me, you attached questions sent to the Attorney General by Sen. Vitter regarding whether the NOPD's recent immigration policy was in compliance with Section 1373. Paragraph 12 of the NOPD policy is labeled "Disclosing Immigration Information" and provides that "Members shall not disclose information regarding . the citizenship or immigration status of any person unless:
(a) Required to do so by federal or state law; or (b) Such disclosure has been authorized in writing by the person who is the subject of the request for information; or
5 


Case 3:17-cv-04642-WHO Document 46-2 Filed 10/31/17 Page 7 of 17
LAW ENFORCEMENT SENSITIVE 

In addition, whatever the technical implication of the clause generally referencing federal law, we have concerns that unless city employees were made explicitly aware that the local ordinance did not limit their legal authority to respond to such ICE requests, employees likely would be unaware of their legal authority to act inconsistently with the local ordinance. We noted that in connection with the introduction of this local ordinance the Mayor of Chicago stated, "[w]e're not going to turn people over to ICE and we're not going to check their immigration status, we'11 check for criminal background, but not for immigration status."s We believe this stated reason for the ordinance, and its message to city employees, has the potential to affect the understanding of
(c) The person is a minor or otherwise not legally competent, and disclosure is authorized in writing by the person's parent or guardian.
Sub-section (a) applies only when an NOPD employee has an affirmative obligation, i.e., is "required" by federal law, to disclose information regarding citizenship or immigration status. Section 1373, however, does not "require" the disclosure of immigration status information; rather, it provides that state and local entities shall not prohibit or restrict the sharing of immigration status information with ICE. Accordingly, in our view, sub-section (a) of the NOPD policy would not serve as a "savings clause" in addressing Section 1373. Thus, unless the understanding of NOPD's employees is that they are not prohibited or restricted from sharing immigration status information with ICE, the policy would be inconsistent with Section 1373. We did not consider selecting the City of New Orleans to evaluate in this memorandum because it was not listed as a grant recipient on the spreadsheet you provided.
Similarly, the City and County of San Francisco, CA administrative code, Section 12H.2, is entitled "Immigration Status" and provides, "No department, agency, commission, officer or employee of the City and County of San Francisco shall use any City funds or resources to assist in the enforcement of federal immigration law or to gather or disseminate information regarding the immigration status of individuals in the City and County of San Francisco unless such assistance is required by federal or State statute, regulation or court decision." As with the NOPD policy, a "savings clause" that only applies when a city employee is "required" by federal law to take some action would not seem to be effective in precluding the law from running afoul of Section 1373, which "requires" nothing, but instead mandates that state and local entities not prohibit, or in any way restrict, the sharing of immigration status information with ICE. Thus, as with the NOPD policy, unless the understanding of San Francisco employees is that they are permitted to share immigration status information with ICE, the policy would be inconsistent with Section 1373. According to news reports, last week the San Francisco Board of Supervisors reaffirmed its policy restricting local law enforcement's authority to assist ICE, except in limited circumstances. Curtis Skinner, "San Francisco Lawmakers Vote to Uphold Sanctuary City Policy," Reuters, May 24, 2016, http://www.reuters.com/article/ us-sanfrancisco-immigration-idUSKCNOYG065 (accessed May 26,2016). We did not consider selecting the City and County of San Francisco to evaluate in this memorandum because it was -not listed as a grant recipient on the spreadsheet you provided.
8 Kristen Mack, "Emanuel Proposes Putting Nondetainer Policy On Books," Chicago Tribune, July 11, 2012, http://articles.chicagotribune.com/2012-07-11/news/ct-met-rahm­ emanuel-immigrants-0711-2012 (accessed May 24,2017).
6 


Case 3:17-cv-04642-WHO Document 46-2 Filed 10/31/17 Page 8 of 17
LAW ENFORCEMENT SENSITIVE 

local officials regarding the performance of their duties, including the applicability of any restrictions on their interactions and cooperation with ICE.
Similarly, we have concerns that other local laws and policies, that by their terms apply to the handling of ICE detainer requests, may have a broader practical impact on the level of cooperation afforded to ICE by these jurisdictions and may, therefore, be inconsistent with at least the intent of Section 1373.9 Specifically, local policies and ordinances that purport to be focused on civil immigration detainer requests, yet do not explicitly restrict the sharing of immigration status information with ICE, may nevertheless be affecting ICE's interactions with the local officials regarding ICE immigration status requests. We identified several jurisdictions with policies and ordinances that raised such concerns, including Cook County, Orleans Parish, Philadelphia, and New York City.
For example, the Cook County, Illinois, detainer policy states, "unless ICE agents have a criminal warrant, or County officials have a legitimate law enforcement purpose that is not related to the enforcement of immigration laws, ICE agents shall not be given access to individuals or allowed to use County facilities for investigative interviews or other purposes, and County personnel shall not expend their time responding to ICE inquiries or communicating with ICE regarding individuals' incarceration status or release dates while on duty." Although this policy falls under the heading "Section 46­ 37 - Policy for responding to ICE Detainers" and does not explicitly proscribe sharing immigration status information with ICE, the portion of the prohibition relating to personnel expending their time responding to ICE inquiries could easily be read by Cook County officials and officers as more broadly prohibiting them from expending time responding to ICE requests relating to immigration status. This possibility was corroborated by ICE officials who told us that Cook County officials "won't even talk to us [ICE]."
In Orleans Parish, Louisiana, Orleans Parish Sheriffs Office (OPSO) policy on "ICE Procedures" states that, "OPSO officials shall not initiate any immigration status investigation into individuals in their custody or affirmatively provide information on an inmate's release date or address to ICE." While the latter limitation applies by its terms to information related to release date or address, taken in conjunction with the prior ban on initiating immigration status investigations, the policy raises a similar concern as to the
9 A reasonable reading of Section 1373, based on its "in any way restrict" language, would be that it applies not only to the situation where a local law or policy specifically prohibits or restricts an employee from providing citizenship or immigration status information to ICE, but also where the actions of local officials result in prohibitions or restrictions on employees providing such information to ICE.
7 


Case 3:17-cv-04642-WHO Document 46-2 Filed 10/31/17 Page 9 of 17
LAW ENFORCEMENT SENSITIVE 

limits it places on the authority of OPSO officials to share information on that topic with ICE.
In Philadelphia, Pennsylvania, the Mayor, on January 4, 2016, issued an executive order that states, in part, that notice of the pending release of the subject of an ICE immigration detainer shall not be provided to ICE "unless such person is being released after conviction for a first or second degree felony involving violence and the detainer is supported by a judicial warrant." According to news reports, the purpose of the order was to bar almost all cooperation between city law enforcement and ICE.I0
In New York City (NYC), a law enacted in November 2014 restricts NYC Department of Corrections personnel from communicating with ICE regarding an inmate's release date, incarceration status, or upcoming court dates unless the inmate is the subject of a detainer request supported by a judicial warrant, in which case personnel may honor the request. The law resulted in ICE closing its office on Riker's Island and ceasing operations on any other NYC Department of Corrections property.
Although the Cook County, Orleans Parish, Philadelphia, and New York City local policies and ordinances purport to be focused on civil immigration detainer request~, and none explicitly restricts the sharing of immigration status with ICE, based on our discussions with ICE officials about the impact these laws and policies were having on their ability to interact with local officials, as well as the information we have reviewed to date, we believe these policies and others like them may be causing local officials to believe and apply the policies in a manner that prohibits or restricts cooperation with ICE in all respects. 11 That, of course, would be inconsistent with and prohibited by Section 1373. 12
10 Michael Matza, "Kenney restores 'sanctuary city' status," Philadelphia Inquirer, January 6, 2016, http://articles.philly.com/2016-01-06/news/69541175_1_south­ philadelphia-secure-communities-ice (accessed May 24,2016) and "Kenney rejects U.S. request to reverse 'sanctuary city' status," Philadelphia Inquirer, May 4, 2016,
http://www.philly.com/phillyI news120160504_Kenney_rejects_Homeland_Security_s_requesC
to_reverse_Philadelphia_s_sanctuary_city_status.html (accessed May 24,2016)
11 For example, the Newark, NJ police department issued a "Detainer Policy" instructing all police personnel that "There shall be no expenditure of any departmental resources or effort by on-duty personnel to comply with an ICE detainer request." More generally, Taos County, NM detention center policy states: "There being no legal authority upon which the United States may compel expenditure of country resources to cooperate and enforce its immigration laws, there shall be no expenditure of any county resources or effort by on-duty staff for this purpose except as expressly provided herein."
12 The ICE officials we spoke with noted that no one at DHS or ICE has made a formal legal determination whether certain state and local laws or policies violate Section 1373, and we are unaware of any Department of Justice decision in that regard. These ICE officials were
8 


Case 3:17-cv-04642-WHO Document 46-2 Filed 10/31/17 Page 10 of 17
LAW ENFORCEMENT SENSITIVE 

Effect on Department of Justice 2016 Grant Funding
We note that, in March 2016, OJP notified SCAAP and JAG applicants about the requirement to comply with Section 1373, and advised them that if OJP receives information that an applicant may be in violation of Section 1373 (or any other applicable federal law) that applicant may be referred to the OIG for investigation. The notification went on to state that if the applicant is found to be in violation of an applicable federal law by the OIG, the applicant may be subject to criminal and civil penalties, in addition to relevant OJP programmatic penalties, including cancellation of payments, return of funds, participation in the program during the period of ineligibility, or suspension and debarment.
In light of the Department's notification to grant applicants, and the information we are providing in this memorandum, to the extent the Department's focus is on ensuring that grant applicants comply with Sec::tion 1373, based on our work to date we believe there are several steps that the Department can consider taking:
• Provide clear guidance to grant recipients regarding whether Section 1373 is an "applicable federal law" that recipients would be expected to comply with in order to satisfy relevant grant rules and regulations; 13
• Require grant applicants to provide certifications specifying the applicants' compliance with Section 1373, along with documentation sufficient to support the certification.
• Consult with the Department's law enforcement counterparts at ICE and other agencies, prior to a grant award, to determine whether, in their view, the applicants are prohibiting or restricting employees from sharing with ICE information regarding the citizenship or immigration status of individuals, and are therefore not in compliance with Section 1373.
• Ensure that grant recipients clearly communicate to their personnel the provisions of Section 1373, including those
also unaware of any legal action taken by the federal government against a state or local jurisdiction to require cooperation.
13 We note that AAG Kadzik's letter to Chairman Culberson dated March 18, 2016, states that Section 1373 "could" be an applicable federal law that with which grant recipients must comply in order to receive grant funds, not that it is, in fact, an applicable federal law.
9 


Case 3:17-cv-04642-WHO Document 46-2 Filed 10/31/17 Page 11 of 17 LAW ENFORCEMENT SENSITIVE 

employees cannot be prohibited or restricted from sending citizenship or immigration status information to ICE. These steps would not only provide the Department with assurances regarding compliance with Section 1373 prior to a grant award, but also would be helpful to the OIG if the Department were to later refer to the- OIG for investigation a potential Section 1373 violation (as the Department recently warned grant applicants it might do in the future). We would be pleased to meet with you and Department's leadership to discuss any additional audit or investigative efforts by the OIG that would further assist the Department with regard to its concerns regarding Section 1373 compliance by state and local jurisdictions. Such a meeting would allow us to better understand what information the Department's management would find useful so that the OIG could assess any request and consult with our counterparts at the Department of Homeland Security Office of the Inspector General, which would necessarily need to be involved in any efforts to evaluate the specific effect oflocal policies and ordinances on ICE's interactions with those jurisdictions and their compliance with Section 1373. Thank you for referring this matter to the OIG. We look forward to hearing from you regarding a possible meeting.
10 


Case 3:17-cv-04642-WHO Document 46-2 Filed 10/31/17 Page 12 of 17 LAW ENFORCEMENT SENSITIVE


OIG Approach

APPENDIX


At the outset, we determined it would be impractical for the OIG to promptly assess compliance with Section 1373 by the more than 140 jurisdictions that were listed on the spreadsheet accompanying your referral. Accordingly, we judgmentally selected a sample of state and local jurisdictions from the information you provided for further review. We started by comparing the specific jurisdictions cited in the CIS report you provided to us with the jurisdictions identified by ICE in its draft Declined Detainer Outcome Report, dated December 2, 2014.14 Additionally, we compared these lists with a draft report prepared by ICE that identified 155 jurisdictions and stated that “all jurisdictions on this list contain policies that limit or restrict cooperation with ICE and, as of Q3 FY 2015, have declined detainers.”15 From this narrowed list of jurisdictions, we determined, using the spreadsheet that you provided with your e-mail, which jurisdictions had active OJP and OVW awards as of March 17, 2016, the date through which you provided award information, and received fiscal year (FY) 2015 State Criminal Alien Assistance Program (SCAAP) payments. Lastly, we considered, based on the spreadsheet, the total dollars awarded and the number of active grants and payments made as of March 17, 2016, and sought to ensure that our list contained a mix of state and local jurisdictions. Using this process we selected the 10 jurisdictions listed in the following table for further review. The dollar figure represents 63 percent of the active OJP awards as of March 17, 2016, and FY 2015 SCAAP payments made by the Department.

Jurisdiction State of Connecticut State of California Orleans Parish, Louisiana New York, New York Philadelphia, Pennsylvania Cook County, Illinois City of Chicago, Illinois Miami-Dade County, Florida Milwaukee, Wisconsin Clark County, Nevada
TOTAL Source: OJP

Total Award Amounts Reported by OJP $69,305,444
$132,409,635 $4,737,964
$60,091,942 $16,505,312
$6,018,544 $28,523,222 $10,778,815
$7,539,572 $6,257,951 $342,168,401

14 At the time of our sample selection we only had a draft version of this report. We later obtained an updated copy which was provided to Congress on April 16, 2016. Although it was provided to Congress, this report was also marked “Draft.” The updated draft version of the report did not require us to alter our sample selection.
15 This version of the declined detainer report covered declined detainers from January 1, 2014 through June 30, 2015.
11


Case 3:17-cv-04642-WHO Document 46-2 Filed 10/31/17 Page 13 of 17 LAW ENFORCEMENT SENSITIVE

The following table lists each of the jurisdictions selected for review by

the OIG and the key provisions of its laws or policies related to ICE civil

immigration detainer requests and the sharing of certain information with ICE,

if applicable.

Provisions of Key Local Laws or Policies

Jurisdiction

Related to Civil Immigration Detainer Requests or

Information Sharing with ICE 16

State of Connecticut

Public Act No. 13-155, An Act Concerning Civil

Immigration Detainers …

The statement of Connecticut

law has been corrected from a (b) No law enforcement officer who receives a civil

prior version of this

immigration detainer with respect to an individual who

memorandum. This correction is in the custody of the law enforcement officer shall

does not affect the analysis or detain such individual pursuant to such civil

conclusions of this

immigration detainer unless the law enforcement official

memorandum. We regret the determines that the individual:

error, and have notified those (1) Has been convicted of a felony;

to whom we sent the

(2) Is subject to pending criminal charges in this state

memorandum of the

where bond has not been posted;

correction.

(3) Has an outstanding arrest warrant in this state;

(4) Is identified as a known gang member in the

database of the National Crime Information Center or

any similar database or is designated as a Security Risk

Group member or a Security Risk Group Safety Threat

member by the Department of Correction;

(5) Is identified as a possible match in the federal

Terrorist Screening Database or similar database;

(6) Is subject to a final order of deportation or removal

issued by a federal immigration authority; or

(7) Presents an unacceptable risk to public safety, as

determined by the law enforcement officer.

(c) Upon determination by the law enforcement officer that such individual is to be detained or released, the law enforcement officer shall immediately notify United States Immigration and Customs Enforcement. If the individual is to be detained, the law enforcement officer shall inform United States Immigration and Customs Enforcement that the individual will be held for a maximum of forty-eight hours, excluding Saturdays, Sundays and federal holidays. If United States Immigration and Customs Enforcement fails to take custody of the individual within such forty-eight-hour period, the law enforcement officer shall release the individual. In no event shall an individual be detained for longer than such forty-eight-hour period solely on the basis of a civil immigration detainer. Approved June 25, 2013

16 Several specific citations to various state and local laws and policies were removed for brevity.

12

Case 3:17-cv-04642-WHO Document 46-2 Filed 10/31/17 Page 14 of 17 LAW ENFORCEMENT SENSITIVE


Jurisdiction State of California
Orleans Parish, Louisiana
New York, New York

Provisions of Key Local Laws or Policies Related to Civil Immigration Detainer Requests or
Information Sharing with ICE 16 An act to add Chapter 17.1 (commencing with Section 7282) to Division 7 of Title I of the Government Code, relating to state government….
7282.5. (a) A law enforcement official shall have discretion to cooperate with federal immigration officials by detaining an individual on the basis of an immigration hold after that individual becomes eligible for release from custody only if the continued detention of the individual on the basis of the immigration hold would not violate any federal, state, or local law, or any local policy, and only under any of the following circumstances …
Effective Date: October 5, 2013. The Orleans Parish Sheriff’s Office (OPSO) shall decline all voluntary ICE detainer requests unless the individual's charge is for one or more of the following offenses: First Degree Murder; Second Degree Murder; Aggravated Rape; Aggravated Kidnapping; Treason; or Armed Robbery with Use of a Firearm. If a court later dismisses or reduces the individual's charge such that the individual is no longer charged with one of the above offenses or the court recommends declining the ICE hold request, OPSO will decline the ICE hold request on that individual.
Orleans Parish Sheriff’s Office Index No. 501.15, Updated June 21, 2013.
Title: A Local Law to amend the administrative code of the city of New York, in relation to persons not to be detained by the department of correction.
Bill Summary: … The DOC would only be permitted to honor an immigration detainer if it was accompanied by a warrant from a federal judge, and also only if that person had not been convicted of a "violent or serious" crime during the last five years or was listed on a terrorist database. Further, the bill would prohibit DOC from allowing ICE to maintain an office on Rikers Island or any other DOC property and would restrict DOC personnel from communicating with ICE regarding an inmate's release date, incarceration status, or court dates, unless the inmate is the subject of a detainer request that DOC may honor pursuant to the law.
Enacted Date: November 14, 2014, Law No. 2014/058.

13


Case 3:17-cv-04642-WHO Document 46-2 Filed 10/31/17 Page 15 of 17 LAW ENFORCEMENT SENSITIVE


Jurisdiction Philadelphia, Pennsylvania
Cook County, Illinois
City of Chicago, Illinois

Provisions of Key Local Laws or Policies Related to Civil Immigration Detainer Requests or
Information Sharing with ICE 16 Executive Order No. 5-16 - Policy Regarding U.S. Immigration and Customs Enforcement Agency Detainer Requests…
NOW, THEREFORE, I, JAMES F. KENNEY, Mayor of the City of Philadelphia, by the powers vested in me by the Philadelphia Home Rule Charter, do hereby order as follows:
SECTION 1. No person in the custody of the City who otherwise would be released from custody shall be detained pursuant to an ICE civil immigration detainer request pursuant to 8 C.F.R. § 287.7, nor shall notice of his or her pending release be provided, unless such person is being released after conviction for a first or second degree felony involving violence and the detainer is supported by a judicial warrant.
Signed by Philadelphia Mayor, January 4, 2016.
Sec. 46-37- Policy for responding to ICE detainers ...
(b) Unless ICE agents have a criminal warrant, or County officials have a legitimate law enforcement purpose that is not related to the enforcement of immigration laws, ICE agents shall not be given access to individuals or allowed to use County facilities for investigative interviews or other purposes, and County personnel shall not expend their time responding to ICE inquiries or communicating with ICE regarding individuals' incarceration status or release dates while on duty.
Approved and adopted by the President of the Cook County Board of Commissioners on September 7, 2011.
Civil Immigration Enforcement Actions – Federal Responsibility §2-173-042 …
(b)(1) Unless an agent or agency is acting pursuant to a legitimate law enforcement purpose that is unrelated to the enforcement of a civil immigration law, no agency or agent shall:
(A) permit ICE agents access to a person being detained by, or in the custody of, the agency or agent;
(B) permit ICE agents use of agency facilities for investigative interviews or other investigative purpose; or
(C) while on duty , expend their time responding to

14


Case 3:17-cv-04642-WHO Document 46-2 Filed 10/31/17 Page 16 of 17 LAW ENFORCEMENT SENSITIVE


Jurisdiction Miami-Dade County, Florida Milwaukee County, Wisconsin

Provisions of Key Local Laws or Policies Related to Civil Immigration Detainer Requests or
Information Sharing with ICE 16 ICE inquiries or communicating with ICE regarding a person’s custody status or release date …
Disclosing Information Prohibited § 2-173-030
Except as otherwise provided under applicable federal law, no agent or agency shall disclose information regarding the citizenship or immigration status of any person unless required to do so by legal process or such disclosure has been authorized in writing by the individual to whom such information pertains, or if such individual is a minor or is otherwise not legally competent, by such individual’s parent or guardian.
Updated November 8, 2012.
Resolution No. R-1008-13: Resolution directing the mayor or mayor’s designee to implement policy on responding to detainer requests from the United States Department of Homeland Security Immigration and Customs Enforcement
NOW, THEREFORE, BE IT RESOLVED BY THE BOARD OF COUNTY COMMISSIONERS OF MIAMI-DADE COUNTY, FLORIDA, that the Mayor or Mayor's designee is directed to implement a policy whereby Miami-Dade Corrections and Rehabilitations Department may, in its discretion, honor detainer requests issued by United States Immigration and Customs Enforcement only if the federal government agrees in writing to reimburse Miami-Dade County for any and all costs relating to compliance with such detainer requests and the inmate that is the subject of such a request has a previous conviction for a Forcible Felony, as defined in Florida Statute section 776.08, or the inmate that is the subject of such a request has, at the time the Miami-Dade Corrections and Rehabilitations Department receives the detainer request, a pending charge of a nonbondable offense, as provided by Article I, Section 14 of the Florida Constitution, regardless of whether bond is eventually granted.
Resolution passed and adopted by Miami-Dade Mayor, December 3, 2013.
Amended Resolution - File No. 12-135
BE IT RESOLVED, that the Milwaukee County Board of Supervisors hereby adopts the following policy with regard to detainer requests from the U.S. Department of

15


Case 3:17-cv-04642-WHO Document 46-2 Filed 10/31/17 Page 17 of 17 LAW ENFORCEMENT SENSITIVE


Jurisdiction Clark County, Nevada

Provisions of Key Local Laws or Policies Related to Civil Immigration Detainer Requests or
Information Sharing with ICE 16 Homeland Security - Immigrations and Customs Enforcement:
1. Immigration detainer requests from Immigrations and Customs Enforcement shall be honored only if the subject of the request: a) Has been convicted of at least one felony or two nontraffic misdemeanor offenses b) Has been convicted or charged with any domestic violence offense or any violation of a protective order c) Has been convicted or charged with intoxicated use of a vehicle d) Is a defendant in a pending criminal case, has an outstanding criminal warrant, or is an identified gang member e) Is a possible match on the US terrorist watch list
Enacted: June 4, 2012 “Recent court decisions have raised Constitutional concerns regarding detention by local law enforcement agencies based solely on an immigration detainer request from the Immigration and Customs Enforcement (ICE). Until this areas of the law is further clarified by the courts, effective immediately the Las Vegas Metropolitan Police Department will no longer honor immigration detainer requests unless one of the following conditions are met:
1. Judicial determination of Probable Cause for that detainer; or
2. Warrant from a judicial officer.
… The Las Vegas Metropolitan Police Department continues to work with our federal law enforcement partners and will continue to provide professional services to the Las Vegas community regardless of their immigration status in United States.
Via Press Release on: July 14, 2014.

16


 
 Case 3:17-cv-04642-WHO Document 61 Filed 12/12/17 Page 1 of 43

1 DENNIS J. HERRERA, State Bar #139669 City Attorney

2 JESSE C. SMITH, State Bar #122517

Chief Assistant City Attorney

3 RONALD P. FLYNN, State Bar #184186 Chief Deputy City Attorney

4 YVONNE R. MERÉ, State Bar #173594 Chief of Complex and Affirmative Litigation

5 CHRISTINE VAN AKEN, State Bar #241755

TARA M. STEELEY, State Bar #231775

6 MOLLIE M. LEE, State Bar #251404 SARA J. EISENBERG, State Bar #269303

7 AILEEN M. McGRATH, State Bar #280846 Deputy City Attorneys

8 City Hall, Room 234

1 Dr. Carlton B. Goodlett Place

9 San Francisco, California 94102-4602 Telephone: (415) 554-4748

10 Facsimile: (415) 554-4715

E-Mail:

brittany.feitelberg@sfcityatty.org

11

Attorneys for Plaintiff

12 CITY AND COUNTY OF SAN FRANCISCO

13

14

UNITED STATES DISTRICT COURT

15

NORTHERN DISTRICT OF CALIFORNIA

16

CITY AND COUNTY OF SAN

Case No. 3:17-CV-04642-WHO

17 FRANCISCO,

FIRST AMENDED COMPLAINT FOR

18

Plaintiff,

DECLARATORY AND INJUNCTIVE RELIEF

19

vs.

Date Action Filed: August 11, 2017

20 JEFFERSON B. SESSIONS III, Attorney

Trial Date: December 10, 2018

General of the United States, ALAN R.

21 HANSON, Acting Assist. Attorney General of

the United States, UNITED STATES

22 DEPARTMENT OF JUSTICE, DOES 1-100,

23

Defendants.

24

25

26

27

28
AMENDED COMPLAINT CASE NO. 3:17-CV-04642-WHO

N:\CXLIT\LI2017\180160\01239533.docx

Case 3:17-cv-04642-WHO Document 61 Filed 12/12/17 Page 2 of 43

1

INTRODUCTION

2

1. The City and County of San Francisco brings this action to challenge the Attorney

3 General of the United States’ attempt to use a longstanding federal grant program—the Edward Byrne

4 Memorial Justice Assistance Grant (“Byrne JAG”) Program—as a cudgel to force San Francisco to

5 abandon its sanctuary city policies. The Attorney General and other members of the Trump

6 Administration have threatened to withhold congressionally appropriated federal funds unless San

7 Francisco—and other jurisdictions across the country—accede to the Administration’s immigration-

8 related policy demands. In doing so, the Defendants have grossly misinterpreted federal law and have

9 seized for themselves power that belongs only to Congress. Defendants’ behavior is unlawful and

10 unconstitutional, and must be prohibited.

11

2. Like many cities, San Francisco has a vibrant immigrant community, many members of

12 which are undocumented. San Francisco has long endeavored to foster cooperation and trust between

13 its immigrant community and city employees and agencies by lawfully limiting when city employees

14 and agencies may assist with the enforcement of federal immigration laws. San Francisco’s laws

15 (“Sanctuary City Laws”) and policies generally prohibit city employees from using city funds or

16 resources to assist in enforcing federal immigration law, unless required by federal or state law. They

17 specifically prohibit local law enforcement officers from cooperating with Immigration and Customs

18 Enforcement (“ICE”) voluntary detainer requests, limit when local law enforcement officers may give

19 the federal government advance notice of a person’s release from jail, and do not allow ICE

20 representatives conducting civil immigration enforcement free access to inmates in jail. But at the

21 same time, San Francisco law expressly states that “[i]n all other respects, local law enforcement

22 agencies may continue to collaborate with federal authorities to protect public safety.”

23

3. San Francisco enacted its Sanctuary City Laws based on evidence showing that

24 San Francisco is a safer, healthier, and stronger city when its officials do not enforce federal

25 immigration laws. San Francisco is safer when all people, including undocumented immigrants, feel

26 comfortable reporting crimes to authorities. San Francisco is healthier when all residents, including

27 undocumented immigrants, access public health programs. San Francisco is economically and socially

28 stronger when all children, including undocumented immigrants, attend school. And San Francisco

AMENDED COMPLAINT CASE NO. 3:17-CV-04642-WHO

1

N:\CXLIT\LI2017\180160\01239533.docx

Case 3:17-cv-04642-WHO Document 61 Filed 12/12/17 Page 3 of 43

1 communities are strengthened when members of the public, including undocumented immigrants, can

2 use public transit, visit libraries, or take their children to the playground without fear. For these

3 reasons, among others, San Francisco has made the considered judgment not to comply with voluntary

4 detainer requests, not to allow federal civil immigration authorities access to jails, and not to provide

5 federal officials with information about the date and time of a person’s release from local custody.

6

4. But San Francisco, and other jurisdictions, have found themselves targeted by Attorney

7 General Sessions and other members of President Donald Trump’s Administration, who make no

8 secret of their intent to undo these considered policy choices, even in the absence of congressional

9 action. The Attorney General has repeatedly condemned “sanctuary cities” that “refus[e] to detain

10 known felons under federal detainer requests” or otherwise refuse to use local resources to carry out 11 demands from federal immigration authorities.1 Similarly, the acting Director of ICE told Congress in 12 June that the federal government expects local governments “[to] allow us access to the jails.”2

13 Likewise, President Trump has criticized “[s]anctuary cities, like San Francisco, [that] block their jails 14 from turning over criminal aliens to Federal authorities for deportation.”3

15

5. Since taking office, the President, directly and through his Administration, has tried

16 various coercive tactics to require local jurisdictions to abandon their sanctuary city policies. The

17 President issued Executive Order 13,768, targeting sanctuary cities and commanding federal agencies

18 to withhold federal funding from these cities unless they changed their policies to begin enforcing

19 federal immigration law. Exec. Order No. 13,768, 82 Fed. Reg. 8799 at 8799 (Jan. 25, 2017)

20 (“Executive Order”). The order was permanently enjoined by this Court for violating numerous

21 constitutional provisions. City and County of San Francisco v. Donald J. Trump, --- F. Supp. 3d ---,

22

23

1 Press Release, U.S. Dep’t of Justice, Attorney General Jeff Sessions Delivers Remarks on

24 Sanctuary Jurisdictions (Mar. 27, 2017), https://www.justice.gov/opa/speech/attorney-general-jeffsessions-delivers-remarks-sanctuary-jurisdictions (“March 27 Sessions remarks”).

25

2 H. Approps, Subcommittee on Homeland Security Hearing on the ICE and CBP F.Y. 2018

Budget (June 13, 2017), 2017 WLNR 18737622 (testimony of Acting ICE Director Thomas Homan).

26

3 Press Release, The White House, Office of the Press Secretary, Statement on Sanctuary Cities

27 Ruling (Apr. 25, 2017), https://www.whitehouse.gov/the-press-office/2017/04/25/statement-sanctuarycities-ruling.

28

AMENDED COMPLAINT CASE NO. 3:17-CV-04642-WHO

2

N:\CXLIT\LI2017\180160\01239533.docx

Case 3:17-cv-04642-WHO Document 61 Filed 12/12/17 Page 4 of 43

1 No. 3:17-cv-00485-WHO, 2017 WL 5569835, at *11-*16 (N.D. Cal. Nov. 20, 2017) (“San Francisco

2 v. Trump”).

3

6. The Attorney General has also tried to create a stigma surrounding sanctuary

4 jurisdictions by falsely claiming that sanctuary city policies undermine public safety and by calling “a

5 sanctuary city a trafficker, smuggler, or gang member’s best friend.”4 The Attorney General has sent

6 letters to San Francisco, as well as several other jurisdictions with sanctuary policies, threatening to

7 withdraw or claw back federal funding if they do not certify that their laws comply with federal 8 requirements.5

9

7. In the Administration’s most recent effort to end sanctuary policies, the Office of

10 Justice Programs (“OJP”)—a Department of Justice (“DOJ”) agency that oversees the administration

11 of the Byrne JAG program—announced on July 25, 2017, that the FY 2017 Byrne JAG application

12 would impose three immigration-related conditions on funding recipients.

13

8. The first condition relates to a federal statute, 8 U.S.C. Section 1373 (“Section 1373”).

14 The FY 2017 Byrne JAG award requires San Francisco to certify that, with respect to the “program or

15 activity” funded with Byrne JAG dollars, San Francisco does not have in effect, purport to have in

16 effect, or is subject to or bound by “any prohibition or any restriction . . . that deals with either (1) a

17 government entity or –official sending or receiving information regarding citizenship or immigration

18 status as described in 8 U.S.C. § 1373(a); or (2) a government entity or –agency sending to, requesting

19 //

20

4 Press Release, U.S. Dep’t of Justice, Attorney General Sessions Delivers Remarks to Federal

21

Law Enforcement Authorities About Sanctuary Cities (Sept. 19, 2017), https://www.justice.gov/opa/speech/attorney-general-sessions-delivers-remarks-federal-law-

22

enforcement-authorities; see also Press Release, U.S. Dep’t of Justice, Statement by Attorney General Sessions on the City of Chicago’s Lawsuit Against the U.S. Department of Justice (Aug. 7, 2017),

23

https://www.justice.gov/opa/pr/statement-attorney-general-sessions-city-chicago-s-lawsuit-against-usdepartment-justice (characterizing sanctuary city laws as “an official policy of protecting criminal

24 aliens who prey on their own residents”). 5 Press Release, U.S. Dep’t of Justice, Department of Justice Sends Letter to Nine Jurisdictions

25 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-

26 compliance-8-usc-1373; Press Release, U.S. Dep’t of Justice, Justice Department Sends Letters to 29

Jurisdictions Regarding Their Compliance with 8 U.S.C. 1373 (Nov. 15, 2017),

27 https://www.justice.gov/opa/pr/justice-department-sends-letters-29-jurisdictions-regarding-their-

compliance-8-usc-1373. The letter San Francisco received is attached to this Amended Complaint as

28 Exhibit A.

AMENDED COMPLAINT CASE NO. 3:17-CV-04642-WHO

3

N:\CXLIT\LI2017\180160\01239533.docx

Case 3:17-cv-04642-WHO Document 61 Filed 12/12/17 Page 5 of 43

1 or receiving from, maintaining, or exchanging information of the types (and with respect to the

2 entities) described in 8 U.S.C. § 1373(b)” (“Section 1373 Requirement”).

3

9. DOJ lacks the constitutional power to require San Francisco to certify that it complies

4 with Section 1373 in order to receive Byrne JAG funds. Only Congress may attach requirements to

5 federal grants—not DOJ. DOJ’s attempt to use Byrne JAG as a weapon to require Section 1373

6 compliance exceeds what the Constitution allows.

7

10. But even if DOJ could impose the Section 1373 Requirement, DOJ may not deny San

8 Francisco Byrne JAG funding because of purported non-compliance with Section 1373 because San

9 Francisco fully conforms with Section 1373’s mandate.

10

11. San Francisco does not prohibit or restrict its employees, or any departments or

11 officials, from sharing information about the citizenship or immigration status of any individual with

12 federal immigration officials. To the contrary, San Francisco has advised all of its employees that

13 Section 1373 prohibits it from imposing any such restrictions. And in any case, San Francisco has a

14 general policy of not collecting immigration status information in the first instance.

15

12. Nevertheless, the Attorney General has made clear that he believes San Francisco

16 violates Section 1373, and has threatened to claw back FY 2016 Byrne JAG funding that

17 San Francisco has already received. The Attorney General has also threatened to deny San

18 Francisco’s FY 2017 Byrne JAG funding. The Attorney General has further taken the incorrect

19 position that Section 1373 applies not only to immigration status information—as its text provides—

20 but also to vast swaths of other information like location, date of birth, and custody status.

21

13. The Attorney General’s threats to withhold San Francisco’s Byrne JAG funding,

22 together with its erroneous interpretation of Section 1373, unlawfully attempt to force San Francisco to

23 comply with the Trump Administration’s political agenda. Declaratory relief from this Court is

24 needed to put a stop to DOJ’s coercion involving Section 1373.

25

14. The other two Byrne JAG conditions also unlawfully seek to interfere with San

26 Francisco’s considered policy judgments. The “Access Requirement” demands that San Francisco

27 provide federal immigration officials unfettered access to local detention facilities to interrogate any

28 suspected aliens held there. The “Notice Requirement” directs San Francisco to provide the

AMENDED COMPLAINT CASE NO. 3:17-CV-04642-WHO

4

N:\CXLIT\LI2017\180160\01239533.docx

Case 3:17-cv-04642-WHO Document 61 Filed 12/12/17 Page 6 of 43

1 Department of Homeland Security (“DHS”) with at least 48 hours’ advance notice—or at least as

2 much notice as is practicable—of the scheduled release date and time of an individual, where the

3 federal government has requested notice to take that individual into custody for immigration reasons.

4

15. San Francisco does not comply with the Notice and Access Requirements, and for good

5 reason: in practice, the Notice and Access Requirements could, and in many instances would, require

6 San Francisco officials to unlawfully hold inmates longer than they otherwise would to ensure that

7 DHS receives adequate advance notice. And they would compel San Francisco to abandon its

8 longstanding laws and policies that deny federal immigration officials freewheeling access to local

9 detention facilities.

10

16. The Notice and Access Requirements—like the Section 1373 Requirement—also

11 violate the United States Constitution. The Constitution establishes a balance of power between the

12 state and federal governments, as well as among the coordinate branches of federal government. This

13 balance prevents the excessive accumulation of power in any single entity and reduces the risk of

14 tyranny and abuse from any government office. Accordingly, an executive branch agency of the

15 federal government may not seize for itself the power that the Constitution reserves for Congress. Nor

16 may it intrude on authority that the Constitution has reserved for state and local governments. Yet the

17 Notice and Access Requirements violate both of these precepts. DOJ is improperly attempting to

18 wield powers that only Congress may invoke, and is seeking to compel San Francisco to cede its

19 sovereign decision making to the federal government.

20

17. San Francisco faces the immediate prospect of losing over $1.4 million in this fiscal

21 year if it does not receive FY 2017 Byrne JAG funds. Defendants have also made clear that they are

22 contemplating clawing back up to $1.5 million in FY 2016 Byrne JAG monies from San Francisco.

23 San Francisco uses these funds for a variety of important law enforcement purposes, including a

24 pioneering Young Adult Court program that works to prevent at-risk youth from entering a “lifelong

25 entanglement with the criminal justice system,”6 and to fund other initiatives designed to reduce

26

27

6 Tim Requarth, A California Court for Young Adults Calls on Science, N.Y. Times

(Apr. 17, 2017), https://www.nytimes.com/2017/04/17/health/young-adult-court-san-francisco-

28 california-neuroscience.html.

AMENDED COMPLAINT CASE NO. 3:17-CV-04642-WHO

5

N:\CXLIT\LI2017\180160\01239533.docx

Case 3:17-cv-04642-WHO Document 61 Filed 12/12/17 Page 7 of 43

1 recidivism, deter drug use, provide services to at-risk youth, and supervise probationers with substance

2 abuse and/or mental health issues.

3

18. San Francisco faces an unacceptable choice: either comply with DOJ’s unconstitutional

4 new grant conditions and abandon local policies that San Francisco has found to promote public safety

5 and foster trust and cooperation between law enforcement and the public, or maintain these policies

6 but forfeit critical funds that it relies on to provide essential services to San Francisco residents.

7

19. That choice is particularly stark with respect to the Section 1373 Requirement, which

8 asks San Francisco to certify under penalty of perjury that its laws comply with Section 1373. While

9 San Francisco firmly believes that it complies with Section 1373, DOJ’s recent pronouncements and

10 threats to San Francisco require San Francisco to make that certification under a cloud of uncertainty.

11

20. San Francisco accordingly seeks declaratory and injunctive relief to ensure that

12 San Francisco and other sanctuary jurisdictions continue to be eligible for Byrne JAG funds—which

13 serve a critical public safety purpose—instead of being coerced into enforcing federal immigration

14 law, which it has no obligation to do.

15

San Francisco seeks a declaration that:

16

 San Francisco’s Sanctuary City Laws—San Francisco Administrative Code Chapters

17

12H and 12I—comply with Section 1373;

18

 San Francisco does not have in place a prohibition or restriction that applies to the

19

program or activity funded under the Byrne JAG program, and which deals with

20

sending to, receiving from, requesting, or maintaining immigration status information

21

with the federal government; and

22

 The Notice, Access, and Section 1373 Requirements are unconstitutional.

23

San Francisco further seeks an injunction that:

24

 Defendants cannot use the Notice, Access, and Section 1373 Requirements as funding

25

restrictions for any Byrne JAG award;

26

 Defendants cannot withhold Byrne JAG funding from San Francisco on the basis of its

27

compliance with Section 1373; and

28 //
AMENDED COMPLAINT CASE NO. 3:17-CV-04642-WHO

6

N:\CXLIT\LI2017\180160\01239533.docx

Case 3:17-cv-04642-WHO Document 61 Filed 12/12/17 Page 8 of 43

1

 Defendants cannot claw back Byrne JAG funding already awarded to San Francisco

2

because of asserted non-compliance with Section 1373.

3

JURISDICTION AND VENUE

4

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

5 further remedial authority under the Declaratory Judgment Act, 28 U.S.C. Sections 2201 and 2202 et

6 seq.

7

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

8 San Francisco, resides in this judicial district and a substantial part of the events or omissions giving

9 rise to this action occurred in this District. 28 U.S.C. §1391(e).

10

INTRADISTRICT ASSIGNMENT

11

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

12 Local Rule 3-2(c)-(d) because a substantial part of the acts or omissions that give rise to this action

13 occurred in the City and County of San Francisco.

14

PARTIES

15

24. Plaintiff San Francisco is a municipal corporation organized and existing under and by

16 virtue of the laws of the State of California, and is a charter city and county.

17

25. Defendant Jefferson B. Sessions is the Attorney General of the United States. He is

18 sued in his official capacity. The Attorney General is the federal official leading DOJ, which is

19 responsible for the governmental actions at issue in this lawsuit.

20

26. Defendant Alan R. Hanson is Acting Assistant Attorney General of the United States in

21 charge of OJP, which administers Byrne JAG funding. He is sued in his official capacity.

22

27. Defendant DOJ is an executive department of the United States of America that is

23 responsible for administering the Byrne JAG program.

24

28. Doe 1 through Doe 100 are sued under fictitious names. Plaintiff San Francisco does

25 not now know the true names or capacities of said Defendants, who were responsible for the alleged

26 violations alleged, but pray that the same may be alleged in this complaint when ascertained.

27 //

28 //
AMENDED COMPLAINT CASE NO. 3:17-CV-04642-WHO

7

N:\CXLIT\LI2017\180160\01239533.docx

Case 3:17-cv-04642-WHO Document 61 Filed 12/12/17 Page 9 of 43

1

FACTUAL ALLEGATIONS

2 I. San Francisco’s Sanctuary City Laws And Policies.

3

29. San Francisco has been a Sanctuary City since 1989, when it first enacted ordinances to

4 protect Central American refugees who were escaping violent civil wars in their home countries and

5 seeking legal protections in the United States. Since then, San Francisco’s Sanctuary City Laws,

6 codified in Chapters 12H and 12I of the San Francisco Administrative Code, have been amended to

7 reflect San Francisco’s broad dedication and commitment to promote public safety, public health, and

8 community integrity.

9

30. San Francisco’s Sanctuary City Laws do not protect criminals. They do not interfere

10 with or hinder criminal prosecutions. They do not prohibit law enforcement in all other respects from

11 collaborating with federal authorities to “protect public safety.” See S.F. Admin. Code § 12I.4.

12

31. Instead, San Francisco’s Sanctuary City Laws arise from San Francisco’s commitment

13 and responsibility to ensure public safety and welfare. The Board of Supervisors, as San Francisco’s

14 legislative body, found that public safety is “founded on trust and cooperation of community residents

15 and local law enforcement.” S.F. Admin Code § 12I.1. Citing a study by the University of Illinois,

16 which found that at least 40 percent of Latinos surveyed were less likely to provide information to

17 police because they feared exposing themselves, family, or friends to a risk of deportation, the Board

18 of Supervisors stated that “civil immigration detainers and notifications regarding release undermine

19 community trust of law enforcement by instilling fear in immigrant communities of coming forward to

20 report crimes and cooperate with local law enforcement agencies.” Id.; see also id. (“The City has

21 enacted numerous laws and policies to strengthen communities and to build trust between

22 communities and local law enforcement. Local cooperation and assistance with civil immigration

23 enforcement undermines community policing strategies.”). Indeed, a recent study shows that crime is

24 statistically significantly lower in sanctuary counties compared to non-sanctuary counties. See

25 Tom K. Wong, The Effects of Sanctuary Policies on Crime and the Economy, CTR. FOR AM. PROGRESS

26 (Jan. 26, 2017), https://www.americanprogress.org/issues/immigration/reports/2017/01/26/297366/the-

27 effects-of-sanctuary-policies-on-crime-and-the-economy/.

28 //
AMENDED COMPLAINT CASE NO. 3:17-CV-04642-WHO

8

N:\CXLIT\LI2017\180160\01239533.docx

Case 3:17-cv-04642-WHO Document 61 Filed 12/12/17 Page 10 of 43

1

32. The legislative findings set forth in Chapter 12I confirm the important purpose of San

2 Francisco’s Sanctuary City Laws. For example, the Board of Supervisors declared:

3

Fostering a relationship of trust, respect, and open communication between City employees and City residents is essential to the City’s core mission of ensuring

4

public health, safety, and welfare, and serving the needs of everyone in the community, including immigrants. The purpose of this Chapter 12I, as well as

5

of Administrative Code Chapter 12H, is to foster respect and trust between law enforcement and residents, to protect limited local resources, to encourage

6

cooperation between residents and City officials, including especially law enforcement and public health officers and employees, and to ensure

7

community security, and due process for all. (See Section 12I.2.)

8

33. San Francisco’s Sanctuary City Laws perform several important functions. San

9 Francisco Administrative Code Chapter 12H prohibits San Francisco departments, agencies,

10 commissions, officers, and employees from using San Francisco funds or resources to assist in the

11 enforcement of federal immigration law or to gather or disseminate information regarding the release

12 status, or other confidential identifying information, of an individual unless such assistance is required

13 by federal or state law.

14

34. Chapter 12H previously prohibited disseminating information regarding the

15 immigration status of any individual, but the Board of Supervisors amended Chapter 12H in July 2016

16 to, inter alia, delete that prohibition to ensure compliance with Section 1373.

17

35. San Francisco Administrative Code Chapter 12I prohibits San Francisco law

18 enforcement officials from detaining an individual who is otherwise eligible for release from custody

19 on the basis of a civil immigration detainer request issued by the federal government. A detainer

20 request is distinct from a criminal warrant, which San Francisco honors consistent with its Sanctuary

21 City Laws. A detainer request is not issued by a judge based on a finding of probable cause. It is

22 simply a request by ICE that a state or local law enforcement agency hold individuals after their

23 release date to provide ICE agents extra time to decide whether to take those individuals into federal

24 custody and then deport them.

25

36. Chapter 12I also prohibits San Francisco law enforcement officials from responding to

26 a federal immigration officer’s request for advance notification of the date and time an individual in

27 San Francisco’s custody is being released, unless the individual in question meets certain criteria. See

28 S.F. Admin. Code § 12I.3(c)-(d).
AMENDED COMPLAINT CASE NO. 3:17-CV-04642-WHO

9

N:\CXLIT\LI2017\180160\01239533.docx

Case 3:17-cv-04642-WHO Document 61 Filed 12/12/17 Page 11 of 43

1

37. Finally, as relevant here, Chapter 12I provides that “[l]aw enforcement officials shall

2 not arrest or detain an individual, or provide any individual’s personal information to a federal

3 immigration officer, on the basis of an administrative warrant, prior deportation order, or other civil

4 immigration document based solely on alleged violations of the civil provisions of immigration laws.”

5 See S.F. Admin. Code § 12I.3(e). “Personal information” is defined as “any confidential, identifying

6 information about an individual, including, but not limited to, home or work contact information, and

7 family or emergency contact information.” See S.F. Admin. Code § 12I.2. Personal information does

8 not include immigration status information.

9

38. Chapter 12I makes clear that its purpose and effect are limited to matters “relating to

10 federal civil immigration detainers, notification of release of individuals, transmission of personal

11 information, or civil immigration documents, based solely on alleged violations of the civil provisions

12 of immigration laws.” Chapter 12I expressly states that “[i]n all other respects, local law enforcement

13 agencies may continue to collaborate with federal authorities to protect public safety.” See S.F.

14 Admin. Code § 12I.4.

15

39. San Francisco departments and agencies have adopted and implemented policies and

16 practices consistent with Chapters 12H and 12I.

17

40. Specifically, the departments and agencies that administer Byrne JAG programs do not

18 have in place any prohibitions or restrictions that apply to programs or activities funded under the

19 Byrne JAG Program, and which deal with sending to, receiving from, requesting, or maintaining

20 immigration status information with the federal government.

21

41. In addition, San Francisco has affirmatively instructed personnel regarding the

22 substance of Section 1373 in a January 2017 memorandum sent to all San Francisco employees from

23 the San Francisco Human Resources Director.

24 II. 25

The Trump Administration Has Engaged In A Sustained Campaign To Eradicate Sanctuary City Policies.

26

42. San Francisco is far from the only jurisdiction to enact sanctuary policies that seek to

27 promote public safety and build trusting and supportive relationships with immigrant communities.

28 Numerous jurisdictions across the country have enacted similar policies. But despite the widespread

AMENDED COMPLAINT CASE NO. 3:17-CV-04642-WHO

10

N:\CXLIT\LI2017\180160\01239533.docx

Case 3:17-cv-04642-WHO Document 61 Filed 12/12/17 Page 12 of 43

1 enactment of these policies, and the studies that justify their use (see supra ¶ 31), the Attorney General

2 and other members of the Trump Administration have repeatedly criticized San Francisco, and other

3 jurisdictions, for failing to allow ICE officials access to jails, provide notification of inmate release

4 dates, or otherwise enforce federal immigration law.

5

43. For instance, in statements to the Daily Caller on July 7, 2015, then-Senator and now-

6 Attorney General Sessions criticized San Francisco and other sanctuary jurisdictions for failing to

7 carry out voluntary detainer requests. Sessions stated, “This disregarding of detainers and releasing

8 persons that ICE has put a hold on—it goes against all traditions of law enforcement. Laws and

9 courtesies within departments—if you have somebody charged with a crime in one city, you hold them

10 until you complete your business with them . . . . So what was happening was, ICE authorities were

11 filing detainers and sanctuary cities were saying, ‘We’re not gonna honor them. They finished paying

12 for the crime they committed in our city—we’ve released them.’”7

13

44. After the President appointed him to office, the Attorney General continued to take the

14 same position targeting sanctuary cities. On July 12, 2017, the Attorney General described sanctuary

15 city “policies” as those requiring law enforcement officials to “refuse to cooperate with federal 16 immigration authorities regarding illegal aliens who commit crimes.”8 And he has frequently

17 suggested that he will use every means necessary to withhold federal funding from “sanctuary cities.”

18 See March 27 Sessions remarks.

19

45. The Trump Administration has incorporated these views into its political agenda.

20 President Trump has frequently promised to “defund” sanctuary cities, and to use the threat of 21 withholding federal funds as “a weapon” to coerce local jurisdictions to change their policies.9 Then-

22

7 Kerry Picket, Sen. Sessions: City Officials Harboring Illegal Immigrant Felons Could Be

23 Charged with Crime, Daily Caller (July 7, 2015), http://dailycaller.com/2015/07/07/sen-sessions-cityofficials-harboring-illegal-immigrant-felons-could-be-charged-with-crime/#ixzz4XE9I12Ux.

24

8 Press Release, U.S. Dep’t of Justice, Attorney General Jeff Sessions Delivers Remarks in Las

Vegas to Federal, State and Local Law Enforcement About Sanctuary Cities and Efforts to Combat 25 Violent Crime (July 12, 2017), https://www.justice.gov/opa/speech/attorney-general-jeff-sessions-

delivers-remarks-las-vegas-federal-state-and-local-law.

26

9 Alexander Mallin and Lissette Rodriguez, Trump Threatens Defunding Sanctuary Cities as

27 ‘Weapon’, ABC News (Feb. 5, 2017), http://abcnews.go.com/Politics/trump-threatens-%20defundingsanctuary-states-weapon/story?id=45286642.

28

AMENDED COMPLAINT CASE NO. 3:17-CV-04642-WHO

11

N:\CXLIT\LI2017\180160\01239533.docx

Case 3:17-cv-04642-WHO Document 61 Filed 12/12/17 Page 13 of 43

1 White House Press Secretary Sean Spicer also confirmed that “[w]e are going to strip federal grant

2 money from the sanctuary states and cities that harbor illegal immigrants. The American people are 3 no longer going to have to be forced to subsidize this disregard for our laws.”10

4

46. The Administration carried through on these threats during President Trump’s first

5 week in office. President Trump issued Executive Order 13,768, which threatened to deny all federal

6 funding to sanctuary jurisdictions and to authorize the Attorney General to take unspecified

7 enforcement action against sanctuary cities. The Executive Order declared that “[s]anctuary

8 jurisdictions across the United States willfully violate Federal law in an attempt to shield aliens from

9 removal from the United States. These jurisdictions have caused immeasurable harm to the American

10 people and to the very fabric of our Republic.” Executive Order at 8799.

11

47. To address that purported harm, the Executive Order established the policy that

12 “jurisdictions that fail to comply with applicable Federal law do not receive Federal funds, except as

13 mandated by law.” Executive Order at 8799. In furtherance of this policy, the Executive Order

14 provided that:

15

[T]he Attorney General and the Secretary [of Homeland Security], in their

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

16

that willfully refuse to comply with 8 U.S.C. 1373 (sanctuary jurisdictions) are

not eligible to receive Federal grants, except as deemed necessary for law

17

enforcement purposes by the Attorney General or the Secretary.

18 Executive Order § 9(a).

19

48. The Executive Order also mandated enforcement action: “The Attorney General shall

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

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

22

49. The Executive Order made clear that Section 1373 is the foundation for the

23 Administration’s efforts to deprive sanctuary cities of federal funds and to take unspecified punitive

24 actions against them.

25 //

26 //

27 10 The White House, 1/25/17: White House Press Briefing, YouTube (Jan. 25, 2017),
28 https://www.youtube.com/watch?v=OaPriMVvtZA.

AMENDED COMPLAINT CASE NO. 3:17-CV-04642-WHO

12

N:\CXLIT\LI2017\180160\01239533.docx

Case 3:17-cv-04642-WHO Document 61 Filed 12/12/17 Page 14 of 43

1

50. The Administration touted the Executive Order as a means for achieving the President’s

2 goal of “ending sanctuary cities . . . . [T]he President has been very clear through his executive order

3 that federal funds, paid for by hardworking taxpayers, should not be used to help fund sanctuary 4 cities.”11 The Administration vowed that “the President is going to do everything he can within the

5 scope of the executive order to make sure that cities who don’t comply with it—counties and other

6 institutions that remain sanctuary cities don’t get federal government funding in compliance with the 7 executive order.”12

8

51. The Administration’s efforts were stopped by this Court, which permanently enjoined

9 Section 9(a) of the Executive Order for violating the Constitution. San Francisco v. Trump, 2017 WL

10 5569835, at *17. The Court held, inter alia, that the President—and in turn, the Attorney General and

11 the Secretary of DHS—lacked the authority “to place a new condition on federal funds . . . not

12 authorized by Congress,” and thus had violated the “fundamental constitutional structure” of the

13 separation of powers. Id. at *11. And the Court further held that even if the executive branch could

14 exercise that spending power, the Executive Order was unconstitutional because it (1) used vague

15 language that left localities unclear how to comply with the funding conditions; (2) lacked any nexus

16 between the funds at issue and immigration enforcement; and (3) sought to compel local governments

17 to “adopt certain policies” that they had determined, in their considered judgment, to be unwise. Id. at

18 *12-*13. The Court found these violations to warrant a nationwide injunction. Id. at *17.

19 III. 20 21

The Administration Is Attempting To Use The Byrne JAG Program To Coerce Cities Like San Francisco To Abandon Their Sanctuary City Policies.
A. The Byrne JAG Program Is A Longstanding Federal Formula Grant Program.

22

52. With its efforts to more broadly withhold federal funds stymied by this Court, the

23 Administration adopted a more targeted approach: it identified an existing congressional program, the

24 //

25

11 Press Release, The White House, Office of the Press Secretary, Press Briefing by Press

26

Secretary Sean Spicer, 2/1/2017, #6 (Feb. 1, 2017), https://www.whitehouse.gov/the-pressoffice/2017/02/01/press-briefing-press-secretary-sean-spicer-212017-6.

27

12 Press Release, The White House, Office of the Press Secretary, Press Briefing by Press

Secretary Sean Spicer, 2/8/2017, #10 (Feb. 8, 2017), https://www.whitehouse.gov/the-press-

28 office/2017/02/08/press-briefing-press-secretary-sean-spicer-282017-10.

AMENDED COMPLAINT CASE NO. 3:17-CV-04642-WHO

13

N:\CXLIT\LI2017\180160\01239533.docx

Case 3:17-cv-04642-WHO Document 61 Filed 12/12/17 Page 15 of 43

1 Byrne JAG program, as another device to pressure cities, states, and other local governments to

2 abandon their sanctuary city policies.

3

53. Byrne JAG’s origins trace back over three decades to the Anti-Drug Abuse Act of

4 1988, H.R. 5210, 100th Cong. (1988), which created the Byrne Formula Grant program. In its original

5 form, the Byrne Formula Grant program provided states with block grants based on population. See

6 Anti-Drug Abuse Act § 6091(a), 42 U.S.C. § 3756 (1994). The program encouraged states to use

7 those funds for very specific enumerated purposes, such as “disrupting illicit commerce in stolen

8 goods and property,” “developing and implementing programs which provide assistance to jurors and

9 witnesses,” and “addressing the problems of drug trafficking and the illegal manufacture of controlled

10 substances in public housing.” See 42 U.S.C. § 3751 (2000).

11

54. Several years after the Byrne Formula Grant program was enacted, Congress also

12 authorized the creation of the Local Law Enforcement Block Grant (“LLEBG”) program, through the

13 FY 1996 law appropriating funding to DOJ. Omnibus Consolidated Rescissions and Appropriations

14 Act of 1996, H.R. 3019, 194th Cong. (1996). The LLEBG program provided money to states and 15 localities based on their crime rates.13 Each year, the LLEBG and Byrne Formula Grant programs

16 disbursed as much as $1 billion to states and local governments.

17

55. In 2006 Congress consolidated the LLEBG and Byrne Formula Grant programs as part

18 of an effort to reduce duplication and streamline the programs. The consolidated program was

19 renamed as today’s Edward Byrne Memorial Justice Assistance Grant program. See Violence Against

20 Women and Department of Justice Reauthorization Act of 2005, H.R. 3402, 109th Cong. (2006); U.S.

21 House of Representatives, Committee on the Judiciary, Department of Justice Appropriations

22 Authorization Act, Fiscal Years 2006 Through 2009, Report to accompany H.R. 3402, 109th Cong.,

23 1st Sess., H.R. Rep. No. 109-233, at 89 (2005) (“Judiciary Committee Report”).

24

56. Congress’s core purpose in reformulating the existing grant programs was “to cover the

25 same ground” as the previous grant programs while allowing recipients more freedom “to use the

26

27

13 See Nathan James, Edward Byrne Memorial Justice Assistance Grant Program: Legislative

and Funding History, Congressional Research Service at 2-3 (Feb. 1, 2008),

28 http://research.policyarchive.org/18740.pdf.

AMENDED COMPLAINT CASE NO. 3:17-CV-04642-WHO

14

N:\CXLIT\LI2017\180160\01239533.docx

Case 3:17-cv-04642-WHO Document 61 Filed 12/12/17 Page 16 of 43

1 grants constructively.” Judiciary Committee Report at 89. The reforms would “lessen the

2 administrative burden of applying for the grants.” Id. And the resulting program would be

3 streamlined and would ensure that “the same authorized funding levels and uses will be available.”

4 150 Cong. Rec. S9,950 (daily ed. Sept. 29, 2004) (statement of Sen. Leahy) (discussing similar,

5 precursor version of 2005 Act).

6

57. To that end, Byrne JAG is structured as a formula grant, awarding funds to all eligible

7 grantees according to a prescribed metric. Unlike discretionary grants, which agencies award pursuant

8 to agency discretion, “‘formula’ grants . . . are not awarded at the discretion of a state or federal

9 agency, but are awarded pursuant to a statutory formula.” City of Los Angeles v. McLaughlin, 865

10 F.2d 1084, 1088 (9th Cir. 1989). The Bureau of Justice Assistance (“BJA”)—a department within

11 OJP—awards Byrne JAG funds to all eligible grantees in amounts based on Bureau of Justice

12 Statistics (“BJS”) calculations derived from the Byrne JAG statutory formula. See 34 U.S.C. §

13 10156(d)(2)(A) (providing that the Attorney General “shall allocate to each unit of local government”

14 funds consistent with the established formula) (emphasis added).

15

58. The formula for state allocations is a function of population and violent crime. See id.

16 § 10156(a). For local governments, the allocation is a function of the state’s allocation and the ratio of

17 violent crime in the locality to violent crime in the state. See id. § 10156(d).

18

59. BJS first computes a preliminary allocation for each state and United States territory

19 based on its share of violent crime and population (weighted equally). BJS then reviews that initial

20 allocation amount to determine if it is less than the minimum amount defined in the statutory formula

21 (0.25 percent of the total). U.S. Dep’t of Justice, Office of Justice Programs, Bureau of Justice

22 Statistics, Technical Report, Justice Assistance Grant Program, 2016 at 2 (Sept. 2016),

23 https://www.bja.gov/jag/pdfs/JAG-Technical-Report.pdf. If this is the case, the state or territory is

24 funded at the minimum level. Id. Each of the remaining states receives the minimum award plus an

25 additional amount based on its share of violent crime and population. Id.

26

60. Once each state’s final amount is determined, 60 percent is allocated to the state in the

27 first instance, and 40 percent is allocated for direct grants to local governments. 34 U.S.C. § 10156(d).

28 //
AMENDED COMPLAINT CASE NO. 3:17-CV-04642-WHO

15

N:\CXLIT\LI2017\180160\01239533.docx

Case 3:17-cv-04642-WHO Document 61 Filed 12/12/17 Page 17 of 43

1 States are obligated to pass at least a certain percentage of the “state” grant to local governments

2 within the state. Id. § 10156(c)(2).

3

61. For example, in FY 2017, California’s total allocation is $28.3 million. Of this, $17.7

4 million (60 percent) is allocated to the State.14 The other $10.6 million (40 percent) is allocated for

5 direct grants to local jurisdictions.15 Of the $17.7 million allocated to the State, a minimum of 62.9

6 percent must be passed through to local jurisdictions.16 In recent years, California has passed through

7 over 85 percent of JAG funds to local jurisdictions.17

8

62. Under the Byrne JAG statute, award recipients are entitled to their share of the formula

9 allocation as long as their proposed programs satisfy one of the statutory purpose areas. In contrast to

10 the Byrne Formula Grant statutory requirements—which enumerated dozens of specific purposes—the

11 Byrne JAG program allows recipients to allocate their funds in furtherance of eight purpose areas: (1)

12 law enforcement, (2) prosecution and courts, (3) prevention and education, (4) corrections and

13 community corrections, (5) drug treatment, (6) planning, evaluation, and technology improvement, (7)

14 crime victim and witness programs, and (8) mental health programs, including behavioral programs

15 and crisis intervention teams. 34 U.S.C. § 10152(a)(1)(A)-(H).

16

63. None of these program purposes include federal immigration enforcement.

17

64. Congress imposed only a limited number of requirements on Byrne JAG applicants.

18 First, applicants are required to supply information about their intended use of grant funding, to

19 demonstrate that they will spend the money on programs supporting the purposes identified in the

20 statute. See 34 U.S.C. § 10153(a)(2) & (a)(5)(A)-(C). Second, applicants must maintain and be

21 prepared to report information demonstrating that they possess programmatic and financial integrity.

22 //

23

24

14 See https://www.bja.gov/Funding/17JAGStateAllocations.pdf.

15 See https://www.bja.gov/Programs/JAG/jag17/17CA.pdf.

25

16 Byrne JAG Frequently Asked Questions (FAQs)–Updated August 2017, at 2,

26

https://www.bja.gov/Funding/JAGFAQ.pdf; see also FY 2014 Justice Assistance Grant (JAG) Program Variable Passthrough (VPT) percentages, https://www.bja.gov/Funding/JAGvpt.pdf.

27

17 See, e.g., Byrne JAG Fiscal Year 2016 California State Application, at 26,

http://www.bscc.ca.gov/downloads/2016%20BSCC%20Application%20to%20BJA%20for%20Byrne

28 %20JAG%20Funding.pdf.

AMENDED COMPLAINT CASE NO. 3:17-CV-04642-WHO

16

N:\CXLIT\LI2017\180160\01239533.docx

Case 3:17-cv-04642-WHO Document 61 Filed 12/12/17 Page 18 of 43

1 Id. § 10153(a)(4). Finally, applicants must “certif[y],” that they “will comply with all provisions of

2 this part and all other applicable Federal laws.” Id. § 10153(a)(5)(D).

3

65. The current Byrne JAG statute contains no immigration-related requirements. Indeed,

4 Congress specifically removed an immigration-related funding requirement when it merged the Byrne

5 Formula Grant program with LLEBG to create Byrne JAG. Congress eliminated the Byrne Formula

6 Grant requirement that recipients make “[a]n assurance that the State has established a plan under

7 which the State will provide without fee to the Immigration and Naturalization Service, within 30 days

8 of the date of their conviction, notice of conviction of aliens who have been convicted of violating the

9 criminal laws of the State and under which the State will provide the Service with the certified record

10 of such a conviction within 30 days of the date of a request by the Service for such record.” 42 U.S.C.

11 § 3753(a)(11) (2002).

12

B. San Francisco Uses Byrne JAG Funds To Support Vital City Services.

13

66. The San Francisco Department of Children, Youth and their Families (“DCYF”)

14 applies for local Byrne JAG funds and state pass-through funds on behalf of the City. DCYF keeps a

15 portion of the grant and also administers grant funds to the following departments: Adult Probation,

16 District Attorney, Juvenile Probation, Public Defender, Police, and Sheriff. DCYF also passes through

17 funds from the local grant to San Francisco Superior Court and a third party evaluator.

18

67. Consistent with the Byrne JAG statute, San Francisco uses its Byrne JAG funds to

19 support critical law enforcement programs designed to reduce criminal behavior and improve public

20 safety. Specific programs funded with this grant include: (1) Law Enforcement Assisted Diversion, an

21 innovative approach that seeks to accomplish the goals of reduced criminal behavior and improved

22 public safety by connecting appropriate low-level drug offenders with services; (2) Focused Drug

23 Deterrence, short and long term proactive activities including targeted investigations and enforcement

24 and social network analysis to increase the identification of individuals involved in high-level drug

25 markets; (3) Drug Court Prosecution, which seeks to connect criminal defendants who suffer from a

26 substantial substance abuse problem to treatment services in the community in order to enhance public

27 safety, reduce recidivism, and to find appropriate dispositions to the criminal charges; (4) Targeted

28 Drug Treatment for Underserved Populations, a treatment intervention conducted by the Sheriff’s

AMENDED COMPLAINT CASE NO. 3:17-CV-04642-WHO

17

N:\CXLIT\LI2017\180160\01239533.docx

Case 3:17-cv-04642-WHO Document 61 Filed 12/12/17 Page 19 of 43

1 Department for individuals in custody; (5) Intensive Probation Supervision, a targeted caseload of

2 probationers with substance abuse and/or mental health issues; (6) Reentry Social Work through the

3 Public Defender’s Office, which provides legal and wraparound support to help indigent clients

4 charged with felony drug cases and other felony offenses successfully exit the criminal justice system;

5 and (7) Citywide Justice-Involved Youth Planning, which examines current criminal justice trends

6 impacting youth and young adults and strengthens partnerships and collaboration at various levels to

7 create a continuum of support for youth and young adults.

8

68. San Francisco uses Byrne JAG pass-through funds for two pilot projects designed to

9 reduce recidivism for juveniles and young adults. One project works with the San Francisco Unified

10 School District to create an alternative to suspension for at-risk youth. Students facing suspension—or

11 exhibiting behaviors that put them at risk for suspension—are paired with trained role models who

12 help them learn de-escalation skills and keep them from missing needed instruction time.

13

69. The other project is a Young Adult Court aimed at reducing recidivism for youth ages

14 18-25. This Court was designed in response to a growing body of neuroscience research showing that

15 young adults are fundamentally different from both juveniles and older adults in how they process

16 information and make decisions. Our traditional justice system is not well-equipped to address cases

17 involving these individuals, who are qualitatively different in development, skills, and needs from both

18 children and older adults. The Young Adult Court fills this gap by providing case management and

19 other support for eligible young adult offenders from high-risk backgrounds.

20

70. These City programs span seven departments, and a total of approximately ten full time

21 equivalent positions for these programs are funded with Byrne JAG funds. Without local and state

22 Byrne JAG funds, San Francisco could be forced to reduce or eliminate these programs, including

23 eliminating staff positions, unless other funding sources could be identified.

24

C. The Department Of Justice Unlawfully Requires San Francisco To Certify

Compliance With Section 1373 As A Condition Of Receiving Byrne JAG Funding.

25

26

71. For many years, OJP administered the Byrne JAG program consistent with

27 congressional intent: local jurisdictions received federal funding according to a formula to support law

28 //
AMENDED COMPLAINT CASE NO. 3:17-CV-04642-WHO

18

N:\CXLIT\LI2017\180160\01239533.docx

Case 3:17-cv-04642-WHO Document 61 Filed 12/12/17 Page 20 of 43

1 enforcement initiatives, and the federal government imposed few restrictions on state and local

2 governments wishing to receive these grant funds.

3

72. But 2016, OJP began to change course. As noted above, the Byrne JAG authorizing

4 statute requires a “certification” that “the applicant will comply with all provisions of this part and all

5 other applicable federal laws.” 34 U.S.C. § 10153(a)(5)(D). OJP issued guidance in July 2016 that

6 Section 1373 was such an “applicable law” for which jurisdictions had to certify compliance to receive

7 Byrne JAG funds.

8

73. Section 1373 provides that a “local government entity or official may not prohibit, or in

9 any way restrict, any government entity or official from sending to, or receiving from, [federal

10 immigration officials] information regarding the citizenship or immigration status . . . of any

11 individual.” 8 U.S.C. § 1373(a). Section 1373 further provides that, “with respect to information

12 regarding the immigration status . . . of any individual,” “no person or agency may prohibit, or in any

13 way restrict, a . . . local government entity from . . . (1) sending such information to, or requesting or

14 receiving such information from, the Immigration and Naturalization Service[,] (2) maintaining such

15 information[, or] (3) exchanging such information with any other Federal, State, or local government

16 entity.” Id. § 1373(b).

17

74. In July and October 2016, DOJ indicated that it viewed Section 1373 as an applicable

18 federal law for the Byrne JAG program. See Office of Justice Programs, Guidance Regarding

19 Compliance with 8 U.S.C. § 1373, U.S. Dep’t Just. (July 7, 2016),

20 https://www.bja.gov/funding/8uscsection1373.pdf (“OJP July Guidance”); Office of Justice Programs,

21 Additional Guidance Regarding Compliance with 8 U.S.C. § 1373, U.S. Dep’t Just. (Oct. 6, 2016),

22 https://www.bja.gov/funding/Additional-BJA-Guidance-on-Section-1373-October-6-2016.pdf (“OJP

23 October Guidance”).

24

75. In the OJP July Guidance, OJP suggested that Section 1373 imposes an affirmative

25 obligation on state and local governments. The Guidance states that to comply with Section 1373,

26 “[y]our personnel must be informed that notwithstanding any state or local policies to the contrary,

27 federal law does not allow any government entity or official to prohibit the sending or receiving of

28 //
AMENDED COMPLAINT CASE NO. 3:17-CV-04642-WHO

19

N:\CXLIT\LI2017\180160\01239533.docx

Case 3:17-cv-04642-WHO Document 61 Filed 12/12/17 Page 21 of 43

1 information about an individual’s citizenship or immigration status with any federal, state or local

2 government entity and officials.” OJP July Guidance at 1 (emphasis added).

3

76. In the October 2016 Guidance, OJP indicated that all Byrne JAG recipients needed “to

4 examine their policies and procedures” to ensure compliance with Section 1373. OJP reiterated that

5 “all Byrne/JAG grant applicants must certify compliance with all applicable federal laws, including

6 Section 1373, as part of the Byrne/JAG grant application process.” OJP October Guidance at 1.

7

77. But OJP made clear at the time that “[n]o FY 2016 or prior year Byrne/JAG . . . funding

8 will be impacted.” OJP October Guidance at 1. OJP stated that its “goal is to ensure that our JAG . . .

9 recipients are in compliance with all applicable laws and regulations, including Section 1373, not to

10 withhold vitally important criminal justice funding from states and localities.” Id.

11

78. Beginning in FY 2017, DOJ expanded upon this mandate, requiring a detailed

12 Certification of Compliance (“Section 1373 Certification”) to be completed by an applicant’s Chief

13 Legal Officer and submitted to OJP before it can accept the award of any Byrne JAG funds. See

14 Byrne JAG FY 2017 Local Solicitation (attached hereto as Exhibit B) (“Local Solicitation”) at 38.

15

79. Among other things, the Section 1373 Certification requires the applicant’s Chief Legal

16 Officer to certify under penalty of perjury that he or she has carefully reviewed Section 1373 and

17 understands that DOJ requires local governments to comply with Section 1373 “with respect to any

18 ‘program or activity’ funded in whole or in part” with Byrne JAG dollars. The Chief Legal Officer is

19 required to conduct—or cause to be conducted—a “diligent inquiry and review” concerning both (1)

20 the “program or activity” to be funded with Byrne JAG funds and (2) “any prohibitions or restrictions

21 potentially applicable to the ‘program or activity’ sought to be funded . . . that deal with sending to,

22 requesting or receiving from, maintaining, or exchanging information of the types described in

23 [Section 1373].”

24

80. The Section 1373 Certification further requires that the Chief Legal Officer certify

25 under penalty of perjury that:

26

[N]either the jurisdiction, nor any entity, agency, or official of the jurisdiction

has in effect, purports to have in effect, or is subject to or bound by, any

27

prohibition or any restriction that would apply to the “program or activity” to be

funded in whole or in part under the FY 2017 [Byrne JAG Program], and that

28

deals with either—(1) a government entity or –official sending or receiving

AMENDED COMPLAINT CASE NO. 3:17-CV-04642-WHO

20

N:\CXLIT\LI2017\180160\01239533.docx

Case 3:17-cv-04642-WHO Document 61 Filed 12/12/17 Page 22 of 43

1

information regarding citizenship or immigration status as described in 8 U.S.C.

§ 1373(a); or (2) a government entity or –agency sending to, requesting or

2

receiving from, maintaining, or exchanging information of the types (and with

respect to the entities) described in 8 U.S.C. § 1373(b).

3

4

81. The Section 1373 Certification further provides that the Chief Legal Officer must

5 acknowledge that a “materially false, fictitious, or fraudulent statement (or concealment or omission of

6 a material fact)” in the certification will potentially subject him or her to criminal prosecution and the

7 applicant entity to civil penalties and administrative remedies for false claims.

8

82. The Section 1373 Certification is not the only time that jurisdictions will be required to

9 assure DOJ that they comply with Section 1373. In addition, OJP has informed potential grant

10 recipients that beginning on October 1, 2017, all Byrne JAG award recipients will be required to

11 “certify each payment request before submission” to the federal Grant Payment Request System. That

12 is, each time a grant recipient wishes to draw-down funds from a Byrne JAG award, the recipient must

13 again certify compliance with Section 1373.

14

83. Specifically, OJP has informed recipients that they must make the following

15 declaration, in addition to other assurances:

16

To the best of my knowledge and belief, on behalf of myself and the award recipient, I certify to DOJ, under penalty of perjury, that the following are true

17

as of the date of this request—(1) The recipient is in compliance with all award conditions that affect the obligation, expenditure, and drawdown of award

18

funds, as well as all related requirements that appear in the certifications and assurances for this award, specifically including any restrictions concerning

19

obligations set out in requirements related to 8 U.S.C. § 1373.

20

84. Further, DOJ has indicated that it will conduct ongoing monitoring of a jurisdiction’s

21 compliance with Section 1373, and will deny and/or claw back funds if it deems a jurisdiction out of

22 compliance with Section 1373. In a November 15, 2017 letter to San Francisco Mayor Edwin Lee,

23 Defendant Hanson informed San Francisco that its “FY 2016 Byrne JAG grant award required you to

24 comply with 8 U.S.C. § 1373. Section 1373 compliance is an ongoing requirement that the

25 Department of Justice monitors.” Exhibit A at 1.

26

85. The November 15, 2017 letter further informed San Francisco that the Department “is

27 concerned that the following San Francisco laws, policies, or practices may violate section 1373.” The

28 //
AMENDED COMPLAINT CASE NO. 3:17-CV-04642-WHO

21

N:\CXLIT\LI2017\180160\01239533.docx

Case 3:17-cv-04642-WHO Document 61 Filed 12/12/17 Page 23 of 43

1 letter identified San Francisco Administrative Code Sections 12H.2 and 12I.3 as such “laws, policies,

2 or practices” that may violate Section 1373.

3

86. The letter directed San Francisco to submit a response to this letter by December 8,

4 2017, addressing whether San Francisco’s laws, policies, or practices violate Section 1373. The letter

5 further asked San Francisco to “address whether [it] would comply with section 1373 throughout the

6 award period, should [it] receive an FY 2017 Byrne JAG grant award.”

7

87. On December 7, 2017, San Francisco City Attorney Dennis Herrera responded to OJP’s

8 letter on behalf of San Francisco. San Francisco informed OJP that San Francisco has no laws,

9 policies, or practices that violate Section 1373, as it is properly construed. San Francisco directed OJP

10 to its briefing in San Francisco v. Trump for further explanation of its legal position. A copy of San

11 Francisco’s response letter is attached to this Amended Complaint as Exhibit C.

12

88. DOJ sent similar letters to 29 other jurisdictions on November 15, 2017. In a press

13 release issued that same day, the Attorney General stated that “[j]urisdictions that adopt so-called

14 ‘sanctuary policies’ also adopt the view that the protection of criminal aliens is more important than

15 the protection of law-abiding citizens and the rule of law.” Press Release, U.S. Dep’t of Justice,

16 Justice Department Sends Letters to 29 Jurisdictions Regarding Their Compliance with 8 U.S.C. 1373

17 (Nov. 15, 2017), https://www.justice.gov/opa/pr/justice-department-sends-letters-29-jurisdictions-

18 regarding-their-compliance-8-usc-1373. The Attorney General further stated “I urge all jurisdictions

19 found to be potentially out of compliance in this preliminary review to reconsider their policies that

20 undermine the safety of their residents. We urge jurisdictions to not only comply with Section 1373,

21 but also to establish sensible and effective partnerships to properly process criminal aliens.” Id.

22

89. These letters were consistent with letters that DOJ sent to nine jurisdictions on April 21,

23 2017, “alert[ing]” the recipients that they were required to submit “documentation to OJP that

24 validates your jurisdiction is in compliance with 8 U.S.C. § 1373.” DOJ has engaged in a protracted

25 back-and-forth with several of these jurisdictions—including New York City, Philadelphia, and

26 Chicago—and has repeatedly communicated that these jurisdictions “appear[] to have laws, policies,

27 or practices that violate 8 U.S.C. § 1373.” In a speech delivered on the same day that he sent the

28 April 21, 2017 letters, the Attorney General reiterated that “the Department of Justice sent letters to

AMENDED COMPLAINT CASE NO. 3:17-CV-04642-WHO

22

N:\CXLIT\LI2017\180160\01239533.docx

Case 3:17-cv-04642-WHO Document 61 Filed 12/12/17 Page 24 of 43

1 jurisdictions that were identified (by the Obama administration) as having policies that potentially

2 violate federal law to receive millions in federal grants.” Press Release, U.S. Dep’t of Justice,

3 Attorney General Jeff Sessions Delivers Remarks Before Media Availability in San Diego, California

4 (Apr. 21, 2017), https://www.justice.gov/opa/speech/attorney-general-jeff-sessions-delivers-remarks-

5 media-availability-san-diego-california.

6

90. These letters stand in stark contrast to DOJ’s earlier representation that FY 2016

7 funding would not be implicated by DOJ’s new decision to require compliance with Section 1373.

8 DOJ has not offered any explanation for this change, or explained how it can retroactively attach grant

9 conditions to award documents issued well over a year ago.

10

91. The Administration lacks the statutory authority to require Byrne JAG applicants and

11 recipients to certify compliance with Section 1373. Although the Byrne JAG statute requires that

12 recipients certify compliance with “all applicable laws,” Section 1373 is not an applicable law for the

13 Byrne JAG Program or for federal grants more generally. DOJ has unilaterally imposed the Section

14 1373 Requirement to further its own political ends of eradicating sanctuary cities.

15

92. Indeed, Congress has repeatedly considered and rejected legislation that would punish

16 cities for setting their own law enforcement priorities by allowing federal agencies to withhold certain

17 grants. See, e.g., Ending Sanctuary Cities Act of 2016, H.R. 6252, 114th Cong. (2016); Stop

18 Dangerous Sanctuary Cities Act, S. 3100, 114th Cong. (2016); Stop Dangerous Sanctuary Cities Act,

19 H.R. 5654, 114th Cong. (2016). None of this legislation has been enacted.

20

93. In July 2015, then-Senator and now-Attorney General Sessions introduced Senate Bill

21 1842, “Protecting American Lives Act.” That bill would in part have expanded existing federal law to

22 deprive jurisdictions having “in effect a statute, policy, or practice that prohibits law enforcement

23 officers of the State, or of a political subdivision of the State, from assisting or cooperating with

24 Federal immigration law enforcement in the course of carrying out the officers’ routine law

25 enforcement duties” of “any . . . law enforcement or Department of Homeland Security grant.” S.

26 1842, 114th Cong. § 3 (2015). The bill never made it out of committee.

27 //

28 //
AMENDED COMPLAINT CASE NO. 3:17-CV-04642-WHO

23

N:\CXLIT\LI2017\180160\01239533.docx

Case 3:17-cv-04642-WHO Document 61 Filed 12/12/17 Page 25 of 43

1

D. The Department Of Justice Also Announced Two Additional Unlawful

Requirements For The FY 2017 Byrne JAG Program.

2

3

94. In late July 2017, DOJ went even further when it announced two additional new

4 requirements that it would unilaterally impose on Byrne JAG grant applicants. The Attorney General 5 announced that “[r]ecipients for FY 2017 will be notified of new conditions of their grants.”18

6

95. The Attorney General stated that:

7

From now on, the Department will only provide Byrne JAG grants to cities and

states that comply with federal law, allow federal immigration access to

8

detention facilities, and provide 48 hours notice before they release an illegal

alien wanted by federal authorities. This is consistent with long-established

9

cooperative principles among law enforcement agencies. This is what the

American people should be able to expect from their cities and states, and these

10

long overdue requirements will help us take down MS-13 and other violent

transnational gangs, and make our country safer.19

11

12

96. DOJ made clear that the Notice and Access Requirements are distinct from Section

13 1373. The new conditions are not included as part of the existing requirement that recipient

14 jurisdictions certify compliance with Section 1373. Byrne JAG FY 2017 State Solicitation (attached

15 hereto as Exhibit D) (“State Solicitation”) at 21; Local Solicitation at 20. Rather, they are independent

16 “award conditions” not connected to any statutory requirement. State Solicitation at 32; Local

17 Solicitation at 30.

18

97. OJP first included the Notice and Access Requirements in the State Solicitation. The

19 State Solicitation was posted on OJP’s website on July 25, 2017, and provided that applications were

20 to be submitted no later than August 25, 2017.

21

98. The State Solicitation provided, first, that OJP will require grant applicants to “provide

22 at least 48 hours’ advance notice to DHS regarding the scheduled release date and time of an alien in

23 the jurisdiction’s custody when DHS requests such notice in order to take custody of the alien pursuant

24 to the Immigration and Nationality Act.” State Solicitation at 32.

25

26

18 See Press Release, U.S. Dep’t of Justice, Attorney General Sessions Announces Immigration Compliance Requirements for Edward Byrne Memorial Justice Assistance Grant Programs (July 25,

27

2017), https://www.justice.gov/opa/pr/attorney-general-sessions-announces-immigration-compliancerequirements-edward-byrne-memorial.

28

19 Id.

AMENDED COMPLAINT CASE NO. 3:17-CV-04642-WHO

24

N:\CXLIT\LI2017\180160\01239533.docx

Case 3:17-cv-04642-WHO Document 61 Filed 12/12/17 Page 26 of 43

1

99. Further, the State Solicitation provided that OJP will require grant applicants to “permit

2 personnel of the [DHS] to access any correctional or detention facility in order to meet with an alien

3 (or an individual believed to be an alien) and inquire as to his or her right to be or remain in the United

4 States.” State Solicitation at 32.

5

100. OJP included the same two requirements in the Local Solicitation, which was made

6 available for applicants on August 3, 2017. Local Solicitation at 30. The Local Solicitation required

7 that applications for FY 2017 Byrne JAG funding be submitted no later than September 5, 2017. As

8 described in more detail below (see infra ¶¶ 126-27), San Francisco submitted its FY 2017 Byrne JAG

9 application on September 5, 2017.

10

101. The Local Solicitation describes these two new requirements as “award requirements.”

11 Local Solicitation at 29. It provides that “[i]f selected for funding, in addition to implementing the

12 funded project consistent with the OJP-approved application, the recipient must comply with all award

13 requirements (including all award conditions).” Id. The Local Solicitation further provides that

14 “[c]ompliance with the requirements of the two foregoing new award conditions will be an authorized

15 and priority purpose of the award.” Local Solicitation at 30.

16

102. San Francisco has not received a Byrne JAG award document at this time.

17

103. But DOJ has issued award documents to two other jurisdictions. See Dkt. No. 46-1,

18 Declaration of Alan Hanson (“Hanson Decl.”) ¶¶ 5-6 & Exh. B. Those award documents contain

19 DOJ’s description of the Notice and Access Requirements.

20

104. DOJ has asserted that it will describe the Notice and Access Requirements the same

21 way in any future award documents. Hanson Decl. ¶¶ 5-6 (“Represented Final Conditions”).

22

105. Paragraph 55 of one such award document describes the Notice and Access

23 Requirements as requiring jurisdictions to have an affirmative statute, rule, regulation, policy, or

24 practice “designed to ensure” compliance with the conditions for state or state-contracted correctional

25 facilities “[w]ith respect to the ‘program or activity’ that is funded.” The “[r]equirement” states in

26 full:

27

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

28

remainder of the period of performance for the award—

AMENDED COMPLAINT CASE NO. 3:17-CV-04642-WHO

25

N:\CXLIT\LI2017\180160\01239533.docx

Case 3:17-cv-04642-WHO Document 61 Filed 12/12/17 Page 27 of 43

A. A State statute, or a State rule, -regulation, -policy, or –practice, must be in

1

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-

2

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

3

and to inquire as to such individuals’ right to be or remain in the United

States.

4

B. A State statute, or a State rule, -regulation, -policy, or –practice, must be in place

5

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

6

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

7

and—as early as practicable (see para. 4.B. of this condition)—provide the requested notice to DHS.

8 Hanson Decl., Exh. B at 18.
9

10

106. DOJ lacks statutory authority for imposing the Notice and Access Requirements on

11 Byrne JAG recipients. As described above, the Byrne JAG authorizing legislation requires program

12 applicants to certify that they will “comply with all provisions of this part and all other applicable

13 Federal laws.” 34 U.S.C. § 10153(a)(5)(D). But no federal law requires that local jurisdictions provide

14 advance notice before releasing a purported alien from their custody, or that they grant federal officials

15 unfettered access to local detention facilities to interrogate individuals in local custody. Nor does any

16 federal law give the Attorney General—or any division of DOJ—the authority to impose conditions of

17 his choice.

18

107. Indeed, as described above (see supra ¶¶ 92-93), Congress has repeatedly considered

19 and rejected legislation that would punish cities for setting their own law enforcement priorities by

20 allowing federal agencies to withhold certain grants. Congress has never passed legislation requiring

21 local jurisdictions to comply with the Notice Requirement or the Access Requirement, or any similar

22 requirement for Byrne JAG grants. Nor has it authorized the executive branch to penalize local

23 jurisdictions—by withholding funds or through any other form of punishment—based on their refusal

24 to comply with the Notice or Access Requirements. Defendants’ unilateral imposition of the Notice

25 and Access Requirements, in these circumstances, is unprecedented, unauthorized, and unlawful.

26

108. Furthermore, the Notice and Access Requirements are ambiguous as to what

27 jurisdictions must do to be in compliance. For example, the Notice Requirement as set forth in the

28 Local Solicitation does not explain whether notice must be given only when the scheduled release date

AMENDED COMPLAINT CASE NO. 3:17-CV-04642-WHO

26

N:\CXLIT\LI2017\180160\01239533.docx

Case 3:17-cv-04642-WHO Document 61 Filed 12/12/17 Page 28 of 43

1 and time is known at least 48 hours in advance, or whether it requires jurisdictions to hold inmates in

2 custody for additional time to provide a full 48-hour period of notice to ICE.

3

109. DOJ has now taken the position in the Represented Final Conditions that the Notice

4 Requirement does not authorize or require Byrne JAG funding recipients to maintain an individual in

5 custody beyond the date and time the individual would otherwise be released. See Hanson Decl., Exh.

6 B at 18. DOJ states in the Represented Final Conditions that “[i]n the event that . . . the scheduled

7 release date and time for an alien are such as not to permit the advance notice [of scheduled release]

8 that DHS has requested, it shall not be a violation of this condition to provide only as much advance

9 notice as practicable.” Id.

10

110. This post-hoc retreat from the Local Solicitation’s broad language does not cure the

11 ambiguity. It still leaves San Francisco uncertain about how much notice is “practicable” to provide,

12 and thus leaves San Francisco with no way of knowing how it can ensure compliance with the Notice

13 Requirement. The Represented Final Conditions still refer to a “scheduled release date and time,” and

14 do not acknowledge that inmates may at times be released with little or no notice. In these

15 circumstances, San Francisco would have little or no opportunity to provide DOJ with any advance

16 notice. The Represented Final Conditions do not suggest that this would be sufficient.

17

111. And in any event, DOJ’s more recent characterization of the Notice Requirement

18 suggests that the Requirement may still operate as a detainer requirement in disguise. Although

19 Defendants now appear to be attempting to narrow the Notice Requirement’s reach, there is no

20 certainty that they will not at some future point revert to the broader, unqualified language that

21 appeared in the Local Solicitation or adopt a similar interpretation.

22

112. Likewise, the Access Requirement is unclear on its face as to whether jurisdictions are

23 required to provide access to inmates in custody only when those individuals consent, or instead

24 whether jurisdictions are required to compel unwilling inmates to meet with ICE representatives.

25

113. In litigation DOJ has attempted to define the Access Requirement’s scope. DOJ has

26 stated in briefing in a case pending in the Eastern District of Pennsylvania that there is no ambiguity

27 about what the Access Requirement demands. Defs.’ Memo. in Opp. to Pltf.’s Mot. for Prelim. Inj.,

28 Philadelphia v. Sessions, No. 2:17-cv-03894-MMB, Dkt. No. 28, at 32. DOJ stated that the plaintiff in

AMENDED COMPLAINT CASE NO. 3:17-CV-04642-WHO

27

N:\CXLIT\LI2017\180160\01239533.docx

Case 3:17-cv-04642-WHO Document 61 Filed 12/12/17 Page 29 of 43

1 that matter “wishfully identifies a supposed ambiguity about whether the [Access Requirement]

2 requires allowing ICE agents access to visit an inmate even when the inmate has told the facility that

3 the inmate does not consent to an interview. The answer is yes. The condition does require allowing

4 access in this scenario, even if the inmate might decline to answer questions.” Id.

5

114. Even with DOJ’s qualification, the Access Requirement is still ambiguous regarding

6 what type of access San Francisco must provide. The Requirement does not identify any limiting

7 principle on the access that ICE agents must receive. For instance, must San Francisco allow ICE

8 agents to use a jail interview room to “access” an uncooperative inmate for as long as ICE wishes?

9 The Access Requirement does not answer this and similar questions.

10

115. The Access Requirement is particularly ambiguous in light of San Francisco’s state law

11 obligations under the Transparent Review of Unjust Transfers and Holds Act (“TRUTH Act”), Cal.

12 Gov’t Code § 7283 et seq. The TRUTH Act requires that, before an interview with ICE takes place, a

13 local law enforcement officer must provide the detained individual with a “written consent form that

14 explains the purpose of the interview, that the interview is voluntary, and that he or she may decline to

15 be interviewed or may choose to be interviewed only with his or her attorney present.” Id. §

16 7283.1(a). It is unclear whether the Access Requirement would preclude San Francisco from

17 complying with the TRUTH Act. For example, it is ambiguous whether the Access Requirement

18 prohibits San Francisco from informing inmates of their right to have a lawyer present or decline an

19 interview with ICE officials, as the TRUTH Act requires it to do.

20

116. Further, it is unclear what DOJ will consider an adequate rule, regulation, policy, or

21 practice for purposes of compliance with either the Notice or Access Requirements. The conditions

22 provide no guidance or further information as to the meaning of these terms.

23 IV. San Francisco Faces Immediate Injury From DOJ’s Newly Announced Requirements.

24

A. DOJ Has Threatened To Claw Back San Francisco’s FY 2016 Byrne JAG

25

Funding.

26

117. In FY 2016, San Francisco received a direct Byrne JAG grant of $522,943.

27 San Francisco also received a state pass-through of Byrne JAG funds of $981,202.

28 //

AMENDED COMPLAINT CASE NO. 3:17-CV-04642-WHO

28

N:\CXLIT\LI2017\180160\01239533.docx

Case 3:17-cv-04642-WHO Document 61 Filed 12/12/17 Page 30 of 43

1

118. DOJ did not include a Section 1373 Requirement in its FY 2016 Byrne JAG award to

2 San Francisco. In contrast, on information and belief DOJ did include a Section 1373 condition in

3 certain Byrne JAG awards made to other recipients.

4

119. In July 2016—after San Francisco applied for the FY 2016 award—OJP issued its July

5 2016 Guidance expressing its view that Section 1373 is an “applicable law” for Byrne JAG award

6 purposes.

7

120. But in October 2016—after San Francisco accepted its FY 2016 award—OJP issued its

8 October 2016 Guidance stating that its determination that Section 1373 is an applicable law would not

9 impact FY 2016 funding.

10

121. Despite this, DOJ’s November 2017 letter to San Francisco threatens to claw back FY

11 2016 Byrne JAG funding on the basis of San Francisco’s purported failure to comply with Section

12 1373.

13

122. In its about-face, DOJ did not acknowledge its change in position, nor explain how it

14 can attach a retroactive new requirement to FY 2016 funds that San Francisco has already accepted.

15

123. San Francisco’s FY 2016 funding has already been allocated to support a number of

16 vital city services. The unlawful claw back of these funds threatens to disrupt San Francisco’s ability

17 to continue these critical city programs.

18

B. The Section 1373 Certification And Additional FY 2017 Requirements Put San

Francisco To An Unconstitutional Choice.

19

1. San Francisco Will Soon Be Required To Execute The Section 1373

20

Certification And Agree To The Notice And Access Requirements.

21

124. San Francisco has received state and local Byrne JAG funds every year for decades,

22 and has applied for Byrne JAG funds for the FY 2017 grant cycle.

23

125. For FY 2017, San Francisco is entitled to a direct Byrne JAG formula grant of

24 $524,845. San Francisco also expects to receive a state pass-through of Byrne JAG funds in the

25 amount of $923,401.

26

126. OJP posted the FY 2017 Local Solicitation on August 3, 2017, with an application

27 deadline of September 5, 2017.

28 //
AMENDED COMPLAINT CASE NO. 3:17-CV-04642-WHO

29

N:\CXLIT\LI2017\180160\01239533.docx

Case 3:17-cv-04642-WHO Document 61 Filed 12/12/17 Page 31 of 43

1

127. On September 5, 2017, San Francisco submitted its FY 2017 Byrne JAG application.

2 In connection with that application, San Francisco made clear that it was not certifying that it would

3 comply with the Notice and Access Requirements, and stated that it was challenging those

4 requirements in litigation. San Francisco informed DOJ that San Francisco DCYF submitted the

5 application “without confirming that it complies with the access condition or notice condition, and

6 without agreeing as part of this application to comply with those conditions.”

7

128. OJP posted the FY 2017 State Solicitation on July 25, 2017, with an application

8 deadline of August 25, 2017.

9

129. OJP has also posted state allocations showing that the State of California is entitled to

10 $17.7 million in Byrne JAG funds for FY 2017. See

11 www.bja.gov/Funding/17JAGStateAllocations.pdf.

12

130. On information and belief, the State of California has applied for Byrne JAG funds for

13 FY 2017.

14

131. States must pass through a portion of state Byrne JAG awards to local jurisdictions in

15 the state. See 34 U.S.C. § 10156(c). The California Board of State and Community Corrections

16 (“BSCC”) is the State Administering Agency responsible for oversight of Byrne JAG funding in

17 California. The BSCC has adopted a multi-year strategy for Byrne JAG funding that prioritizes law

18 enforcement; prevention and education programs; and courts, prosecution and defense. This multi-

19 year strategy does not include or prioritize enforcement of federal immigration laws.

20

132. Once the State of California receives Byrne JAG funds, it issues a request for proposals

21 (“RFP”) for local jurisdictions to apply for pass-through funds. In 2014, California invited proposals

22 for a three year funding cycle beginning on March 1, 2015, and ending on December 31, 2017. The

23 initial RFP was released on September 15, 2014, with a Notice of Intent to Apply due October 3, 2014,

24 and proposals due November 21, 2014. After the initial award, local jurisdictions were required to re-

25 apply for the second and third year funds. San Francisco was awarded a grant for the Young Adult

26 Court and alternative to suspension projects discussed above, with $1,045,624 awarded in 2015,

27 $983,971 in 2016, and $981,202 in 2017.

28 //
AMENDED COMPLAINT CASE NO. 3:17-CV-04642-WHO

30

N:\CXLIT\LI2017\180160\01239533.docx

Case 3:17-cv-04642-WHO Document 61 Filed 12/12/17 Page 32 of 43

1

133. To receive pass-through Byrne JAG funds, San Francisco will be required to submit

2 assurances that it will comply with all award requirements. This obligation flows from the

3 requirement that sub-recipients of state Byrne JAG awards must certify their compliance with Section

4 1373, as applicable to the program and award to be funded, and assure that they will comply with all

5 award conditions, including the Notice and Access Requirements.

6

134. DOJ has not yet issued a final award document to San Francisco. As of the date of this

7 filing, San Francisco’s 2017 Byrne JAG application appears as “submitted” in the federal grant

8 processing system.

9

135. DOJ has stated that grant recipients will have 45 days from the date they receive award

10 documents to accept or reject a FY 2017 Byrne JAG award. To accept a FY 2017 Byrne JAG award,

11 recipients will be required to certify that they comply with all applicable award conditions—including

12 the Notice and Access Requirements—and to submit an executed Section 1373 Certification.

13

2. The Notice, Access, And Section 1373 Requirements Create An

Unconstitutional Choice For San Francisco.

14

15

136. The Notice, Access, and Section 1373 Requirements will create an untenable choice for

16 San Francisco, when it is faced with the decision whether to accept the FY 2017 Byrne JAG award.

17

137. As to the Notice and Access Requirements, San Francisco is unable to comply with

18 those Requirements, as is necessary to accept a FY 2017 Byrne JAG award and draw down the related

19 funds. San Francisco cannot assure DOJ that it complies with these Requirements for three reasons.

20

138. First, San Francisco does not have in place any laws, rules, regulations, or policies that

21 fulfill the Notice and Access Requirements, as DOJ has made clear is necessary for San Francisco to

22 accept an award. Indeed, San Francisco’s Sanctuary City Laws and policies conflict with the Notice

23 and Access Requirements, as DOJ has described them.

24

139. Second, practical difficulties also prevent San Francisco from complying with the

25 Notice and Access Requirements.

26

140. As to the Notice Requirement, the Sheriff’s Department frequently does not know

27 whether and when an inmate will be released with enough time to provide federal officials with 48

28 hours’ advance notice, or very much notice at all. And those release dates and times are often dictated

AMENDED COMPLAINT CASE NO. 3:17-CV-04642-WHO

31

N:\CXLIT\LI2017\180160\01239533.docx

Case 3:17-cv-04642-WHO Document 61 Filed 12/12/17 Page 33 of 43

1 by factors outside of San Francisco’s control. For instance, an inmate’s release is often controlled by a

2 court order that requires San Francisco to release the inmate as quickly as possible. San Francisco and

3 its officials potentially face liability for delaying an inmate’s release once a court has ordered it. See

4 Berry v. Baca, 379 F.3d 764, 767 (9th Cir. 2004) (noting that local governments may violate the

5 constitutional rights of inmates when they continue to hold inmates after a court has authorized their

6 release).

7

141. As to the Access Requirement, the Sheriff’s Department does not provide federal

8 immigration officials access to inmates. Under the Sheriff’s Department policy, Sheriff staff are not

9 authorized to provide ICE representatives conducting civil immigration enforcement access to inmates

10 in jail.

11

142. Third, San Francisco’s uncertainty regarding what the Notice and Access Requirements

12 demand in practice threatens to interfere with its ability to administer its jails. Although DOJ now

13 disclaims the argument that the Notice Requirement functions as a de facto detainer request, the

14 Notice and Access Requirements in fact could prolong an inmate’s detention. DOJ’s insistence that it

15 receive access to inmates could delay an inmate’s release, if ICE seeks to interview inmates when they

16 would otherwise be released. Likewise, the Notice Requirement could delay an inmate’s release in

17 circumstances where an inmate is ordered to be released immediately. Although DOJ has suggested

18 that it need not receive a full 48 hours’ notice when that amount of time is “impracticable,” the Notice

19 Requirement still requires that some form of advance notice may be given. Thus, San Francisco may

20 be forced to adjust inmates’ release times to ensure that it can provide the federal government with the

21 required period of notice. And San Francisco remains uncertain that DOJ will adhere to the “as early

22 as practicable” limitation, which was not included in the Solicitations.

23

143. Coercing San Francisco to detain individuals past their projected release date—as the

24 Notice Requirement could do at least in practice—likely violates the Fourth Amendment. Given the

25 reality of how inmates’ release times are determined, and the uncertainty regarding how DOJ will

26 administer the Notice and Access Requirements, San Francisco fears that it may be unable to comply

27 with these Requirements without running afoul of the Fourth Amendment.

28 //
AMENDED COMPLAINT CASE NO. 3:17-CV-04642-WHO

32

N:\CXLIT\LI2017\180160\01239533.docx

Case 3:17-cv-04642-WHO Document 61 Filed 12/12/17 Page 34 of 43

1

144. San Francisco is thus put in an untenable situation: it cannot comply with the Notice

2 and Access Requirements without changing its local laws and policies. And even if it were willing to

3 change its laws and policies—which it is not—those changes would expose it to potential

4 constitutional liability. But if San Francisco refuses to change its laws and policies to enable it to

5 accept the FY 2017 Byrne JAG award, it will be forced to forgo millions of dollars of vital law

6 enforcement funding. Ironically, DOJ would deprive San Francisco of money for public safety

7 because it questions San Francisco’s legitimate exercise of judgment—consistent with the allocation

8 of power under the Constitution—about what best serves the public safety of its own residents.

9

145. The Section 1373 Requirement likewise requires San Francisco to make another

10 untenable choice: either sign the Section 1373 Certification under the cloud of DOJ’s incorrect

11 assertion that San Francisco’s laws—in particular, Chapters 12H and 12I of the San Francisco

12 Administrative Code—fail to satisfy Section 1373’s demands, or decline to sign the certification and

13 give up funding that City departments depend on.

14

146. Although San Francisco firmly believes that its laws, policies, and practices comply

15 with Section 1373, Defendants’ statements give rise to a credible fear that DOJ will either deny the

16 application, accept the application and later claw back funds, or attempt to hold San Francisco or its

17 officials civilly or criminally liable for signing the Certification.

18

147. Defendants’ November 15, 2017 letter, mentioning DOJ’s “concern[s]” that Chapters

19 12H and 12I of the Administrative Code “may violate section 1373,” exacerbates this fear.

20

148. This credible fear is compounded by the Administration’s additional statements

21 suggesting that San Francisco violates Section 1373. The White House has characterized “[s]anctuary

22 cities, like San Francisco” as violating Section 1373 by “block[ing] their jails from turning over 23 criminal aliens to Federal authorities for deportation.”20 The Attorney General has criticized

24 San Francisco for having sanctuary city policies, which he described as a “refus[al] to cooperate with

25 //

26

20 Press Release, The White House, Office of the Press Secretary, Statement on Sanctuary

27 Cities Ruling (Apr. 25, 2017), https://www.whitehouse.gov/the-press-office/2017/04/25/statementsanctuary-cities-ruling.

28

AMENDED COMPLAINT CASE NO. 3:17-CV-04642-WHO

33

N:\CXLIT\LI2017\180160\01239533.docx

Case 3:17-cv-04642-WHO Document 61 Filed 12/12/17 Page 35 of 43

1 federal immigration authorities regarding illegal aliens who commit crimes.”21 And more recently, the

2 Attorney General identified San Francisco’s Sanctuary City Laws as having “led to the preventable

3 and heartbreaking death of Kate Steinle” and vowed to “ensure that all jurisdictions place the safety

4 and security of their communities above the convenience of criminal aliens.”22 These threats create

5 substantial uncertainty for San Francisco about signing the Section 1373 Certification.

6

149. This uncertainty is compounded by the Trump Administration’s continually changing

7 interpretation of what Section 1373 requires. That interpretation has expanded repeatedly over the

8 past year, creating apprehension for San Francisco about whether the Administration may refuse to

9 accept San Francisco’s Section 1373 Certification, or later take punitive action against San Francisco.

10

150. For instance, the Administration has repeatedly, and incorrectly, suggested that a local

11 government violates Section 1373 when it refuses to honor detainer requests or allow access to jails.

12 DOJ specifically linked Section 1373 to ICE detainers in a 2016 Office of the Inspector General

13 memorandum that analyzed ten jurisdictions’ compliance with Section 1373 and stated that detainer

14 policies “may be causing local officials to believe and apply the policies in a manner that prohibits or

15 restricts cooperation with ICE in all respects . . . [which], of course, would be inconsistent with and

16 prohibited by Section 1373.” May 2016 OJP Guidance. ICE Director Thomas Homan also testified to

17 Congress that over 100 jurisdictions violated Section 1373 because they “have some sort of policy

18 where they don’t honor detainers or allow us access to the jails.”23

19

151. More recently, DOJ has adopted an even broader interpretation of Section 1373 as

20 preventing jurisdictions from prohibiting or restricting their employees from sharing vast swaths of

21 information, far removed from Section 1373’s reference to “immigration status.”

22

23

21 Press Release, U.S. Dep’t of Justice, Attorney General Jeff Sessions Delivers Remarks in

Las Vegas to Federal, State and Local Law Enforcement About Sanctuary Cities and Efforts to

24 Combat Violent Crime (July 12, 2017), https://www.justice.gov/opa/speech/attorney-general-jeffsessions-delivers-remarks-las-vegas-federal-state-and-local-law.

25

22 Press Release, U.S. Dep’t of Justice, Attorney General Sessions Statement on the Verdict in

26

People of the State of California vs. Jose Ines Garcia Zarate aka Juan Francisco Lopez Sanchez (Nov. 30, 2017), https://www.justice.gov/opa/pr/attorney-general-sessions-statement-verdict-people-state-

27 california-vs-jose-ines-garcia. 23 H. Approps. Comm. Hr’g Tr., Fed. News Serv. Transcripts, 2017 WLNR 18737622 (June

28 13, 2017).

AMENDED COMPLAINT CASE NO. 3:17-CV-04642-WHO

34

N:\CXLIT\LI2017\180160\01239533.docx

Case 3:17-cv-04642-WHO Document 61 Filed 12/12/17 Page 36 of 43

1

152. For instance, in letters Defendant Hanson has sent to other jurisdictions regarding their

2 supposed violations of Section 1373, DOJ indicated that it believes Section 1373 requires local

3 governments to allow their employees to share not only immigration status information, but also

4 information regarding a person’s custody status and release date. See Ltr. to Eddie T. Johnson,

5 Chicago Superintendent of Police, from Alan R. Hanson (Oct. 11, 2017),

6 https://www.justice.gov/opa/press-release/file/1003016/download. DOJ, in those letters, also made

7 clear that it expects local jurisdictions not only to avoid having in place a “prohibition or any

8 restriction” regarding the sending of immigration-status information—as the Section 1373

9 Certification suggests—but also to make affirmative communications to their employees. Ltr. to Hon.

10 Jim Kenney, City of Philadelphia, from Alan R. Hanson (Oct. 11, 2017),

11 https://www.justice.gov/opa/press-release/file/1003046/download.

12

153. And in just the past few weeks, DOJ’s incorrect interpretation of Section 1373 has

13 expanded again. In an October 2017 hearing on San Francisco’s Motion for Summary Judgment in the

14 related San Francisco v. Trump case, counsel for DOJ stated that Section 1373’s reference to

15 “immigration status” information includes a person’s custody status, release date, a person’s “identity

16 and age,” date of birth, residence, and home address. Hr’g Tr. (Oct. 23, 2017) at 21:8-23:3. Further,

17 in recent briefing in the related California v. Sessions case, No. 3:17-cv-04701-WHO, DOJ took the

18 view that Section 1373 also includes information about familial relationships. Dkt. No. 42, Defs.’

19 Opp. to Pltf.’s Amended Mot. for Prelim Inj. at 21. In addition, at the same San Francisco v. Trump

20 hearing, counsel for DOJ further stated that a “restriction” might include a jurisdiction’s failure to

21 inform its employees about Section 1373 to ensure that they “honor 1373.” Id. at 20:22-21:5.

22

154. Although Defendants’ overbroad reading of Section 1373 is incorrect, it nonetheless

23 creates undue pressure for San Francisco. Although San Francisco knows that it complies with

24 Section 1373 as properly interpreted, it has a credible fear of denial of its 2017 Byrne JAG application,

25 the subsequent claw back of its FY 2017 Byrne JAG funds, or future enforcement actions against it or

26 its officials if it executes the Section 1373 Certification in the face of Defendants’ representations.

27 //

28 //
AMENDED COMPLAINT CASE NO. 3:17-CV-04642-WHO

35

N:\CXLIT\LI2017\180160\01239533.docx

Case 3:17-cv-04642-WHO Document 61 Filed 12/12/17 Page 37 of 43

1

155. But at the same time, San Francisco will suffer harm if it declines to execute the

2 Section 1373 Certification. Doing so will render San Francisco ineligible for FY 2017 Byrne JAG

3 funding.

4

156. Together, these conditions harm San Francisco, no matter what choices San Francisco

5 makes regarding Byrne JAG grants. It can sacrifice its sovereignty and accede to the Administration’s

6 demands. And in doing so, it can potentially expose itself to criminal penalties, if the Administration

7 later rejects its Section 1373 Certification, or to civil liability, if the Administration’s Notice and

8 Access Requirements intrude on individual’s constitutional rights. Or it can refuse to change its

9 considered and constitutionally protected policy judgments but forgo law enforcement dollars that are

10 important to the community’s public safety.

11 V. 12

San Francisco Needs Declaratory Relief That It Properly Can Certify Compliance with Section 1373 As Required To Receive Byrne JAG Funds.

13

157. There is an actual controversy between San Francisco and DOJ regarding San

14 Francisco’s compliance with Section 1373, particularly in light of San Francisco’s fear that DOJ will

15 reject San Francisco’s FY 2017 Section 1373 Certification, accept the Certification and later take

16 enforcement action against San Francisco, or attempt to claw back FY 2016 Byrne JAG grant funds.

17

158. Even if DOJ could lawfully require San Francisco to execute the Section 1373

18 Certification, it cannot withhold funding from San Francisco based on San Francisco’s purported non-

19 compliance with Section 1373 because San Francisco fully satisfies the Section 1373 Certification’s

20 requirements.

21

159. Nothing in San Francisco Administrative Code Chapters 12H or 12I limits

22 communications regarding citizenship or immigration status in any way, and these laws therefore

23 comply with Section 1373.

24

160. San Francisco’s laws do not restrict the sharing of immigration status information.

25 Neither San Francisco nor any entity, agency, or official therein has in effect, or is subject to or bound

26 by, any prohibition or restriction that applies to the programs or activities funded by the Byrne JAG

27 program, and which concerns the government entity or official’s sending to, or receiving from, the

28 federal government any information regarding citizenship or immigration status.

AMENDED COMPLAINT CASE NO. 3:17-CV-04642-WHO

36

N:\CXLIT\LI2017\180160\01239533.docx

Case 3:17-cv-04642-WHO Document 61 Filed 12/12/17 Page 38 of 43

1

161. None of the San Francisco departments administering a Byrne JAG-funded program

2 has in place a prohibition or restriction on the sending to, or receiving from, the federal government

3 any information regarding citizenship or immigration status, or on the maintaining of such

4 information.

5

162. The departments administering Byrne JAG-funded programs are subject to and bound

6 by Administrative Code Chapters 12H and 12I, and conduct their practices in accordance with those

7 laws.

8

163. San Francisco has adopted policies and practices consistent with Administrative Code

9 Chapters 12H and 12I.

10

164. San Francisco does not enforce detainer requests (as distinct from warrants), does not

11 provide ICE access to its jails, and does not respond to notification requests from the federal

12 government unless certain conditions are met. But compliance with these requests is not required by

13 Section 1373, which speaks only to communications regarding citizenship and immigration status.

14 Construing Section 1373 to extend to these activities would raise serious constitutional concerns.

15

165. San Francisco does not prohibit or in any way restrict the sharing of citizenship or

16 immigration status information. San Francisco also does not provide a person’s home address,

17 residence, date of birth, or similar sensitive personal information to federal immigration officials. But

18 the sharing of this information with the federal government is not required by Section 1373, which

19 speaks only to communications regarding citizenship and immigration status.

20

COUNT ONE:

21 DECLARATORY RELIEF – SAN FRANCISCO COMPLIES WITH THE REQUIREMENTS OF THE SECTION 1373 CERTIFICATION
22

23

166. Plaintiff repeats and incorporates by reference each allegation of the prior paragraphs as

24 if fully set forth herein.

25

167. San Francisco disputes Defendants’ authority to require it to execute the Section 1373

26 Certification. But even if Defendants could require the Section 1373 Certification, they cannot

27 withhold Byrne JAG funding from San Francisco in connection with that Certification because

28 San Francisco complies with Section 1373.

AMENDED COMPLAINT

37

CASE NO. 3:17-CV-04642-WHO

N:\CXLIT\LI2017\180160\01239533.docx

Case 3:17-cv-04642-WHO Document 61 Filed 12/12/17 Page 39 of 43

1

168. San Francisco does not have in effect, purport to have in effect, or is subject to or

2 bound by any prohibition or restriction that applies to the program or activity funded with Byrne JAG

3 monies that deals with either the sending to, or receipt of, information regarding an individual’s

4 immigration status information with the federal government, or the maintenance of such information.

5

169. San Francisco’s laws comply with Section 1373. San Francisco Administrative Code

6 Chapters 12H and 12I do not prohibit, or in any way restrict, any government entity or official from

7 sending to, or receiving from, immigration officials information regarding the citizenship or

8 immigration status of any individual, or maintaining such information.

9

170. The departments administering Byrne JAG-funded programs are subject to and bound

10 by these laws. These departments have policies and practices in place that are consistent with these

11 laws.

12

171. Defendants contend that Chapters 12H and 12I of the San Francisco Administrative

13 Code do not comply with Section 1373, based on their incorrect interpretation of Section 1373.

14

172. Defendants have not identified any other San Francisco laws, policies, or practices that

15 do not comply with Section 1373.

16

173. Defendants’ interpretation of Section 1373 is incorrect. Section 1373 only governs

17 restrictions on the sharing and receiving of information related to citizenship and immigration status,

18 and requesting from federal immigration enforcement agents, and maintaining of, information related

19 to citizenship and immigration status. Section 1373 does not prohibit restrictions on detainer requests,

20 notification requests, civil immigration authorities’ access to jails, or requests for sensitive information

21 like date of birth, residence, or home address. See Steinle v. City and County of San Francisco, 230 F.

22 Supp. 3d 994, 1015-16 (N.D. Cal. 2017).

23

174. An actual controversy presently exists between San Francisco and Defendants about

24 whether San Francisco’s laws comply with Section 1373.

25

175. An actual controversy presently exists between San Francisco and Defendants

26 regarding whether San Francisco has in effect, purports to have in effect, or is subject to or bound by

27 any prohibition or restriction that applies to the program or activity funded with Byrne JAG monies

28 //
AMENDED COMPLAINT CASE NO. 3:17-CV-04642-WHO

38

N:\CXLIT\LI2017\180160\01239533.docx

Case 3:17-cv-04642-WHO Document 61 Filed 12/12/17 Page 40 of 43

1 that deals with either the sending to, or receiving from, immigration status information with the federal

2 government, or the maintaining of such information.

3

176. A judicial determination resolving this controversy is necessary and appropriate.

4

COUNT TWO:

5

SEPARATION OF POWERS

6

(Notice, Access, and Section 1373 Requirements)

7

177. Plaintiff repeats and incorporates by reference each allegation of the prior paragraphs as

8 if fully set forth herein.

9

178. In July and August 2017, Defendants issued solicitations seeking applications for the

10 Byrne JAG program.

11

179. San Francisco has applied for the FY 2017 Byrne JAG program, but has not yet

12 received a response to its application.

13

180. The solicitations state: “Individual FY 2017 JAG awards will include two new express

14 conditions that, with respect to the ‘program or activity’ that would be funded by the FY 2017 award,

15 are designed to ensure that States and units of local government that receive funds from the FY 2017

16 JAG award: (1) permit personnel of the U.S. Department of Homeland Security (DHS) to access any

17 correctional or detention facility in order to meet with an alien (or an individual believed to be an

18 alien) and inquire as to his or her right to be or remain in the United States; and (2) provide at least 48

19 hours’ advance notice to DHS regarding the scheduled release date and time of an alien in the

20 jurisdiction’s custody when DHS requests such notice in order to take custody of the alien pursuant to

21 the Immigration and Nationality Act.” State Solicitation at 32; Local Solicitation at 30.

22

181. DOJ has subsequently stated that any FY 2017 award document San Francisco receives

23 will require that:

24

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

25

remainder of the period of performance for the award—

A. A State statute, or a State rule, -regulation, -policy, or -practice, must be in

26

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)

27

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

28

as to such individuals’ right to be or remain in the United States.

AMENDED COMPLAINT CASE NO. 3:17-CV-04642-WHO

39

N:\CXLIT\LI2017\180160\01239533.docx

Case 3:17-cv-04642-WHO Document 61 Filed 12/12/17 Page 41 of 43

B. A State statute, or a State rule, -regulation, -policy, or -practice, must be in place

1

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

2

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

3

as practicable (see para. 4.B. of this condition)—provide the requested notice to DHS.

4

182. DOJ has also instructed that jurisdictions wishing to accept 2017 Byrne JAG funds will

5 have to execute a Certification of Compliance with 8 U.S.C. § 1373.

6

183. The Constitution vests Congress with legislative powers, see U.S. Const. art. 1, § 1, and

7 the spending power, see U.S. Const. art. 1, § 8, cl. 1. Absent a statutory provision or an express

8 delegation, only Congress is entitled to attach conditions to federal funds.

9

184. Congress has not enacted the Notice, Access, and Section 1373 Requirements as part of

10 any statutory scheme.

11

185. Congress has not enacted the Section 1373 Requirement as applicable to Byrne JAG

12 funds.

13

186. Congress has not delegated to Defendants the ability to impose the Notice, Access, and

14 Section 1373 Requirements on Byrne JAG funds.

15

187. Defendants are unilaterally imposing the Notice, Access, and Section 1373

16 Requirements without authorization from Congress.

17

188. For these reasons, the Notice, Access, and Section 1373 Requirements unlawfully and

18 unconstitutionally intrude upon and usurp powers that have been assigned to Congress, violating

19 principles of separation of powers.

20

COUNT THREE:

21

SPENDING CLAUSE

22

(Notice, Access, and Section 1373 Requirements)

23

189. Plaintiff repeats and incorporates by reference each allegation of the prior paragraphs as

24 if fully set forth herein.

25

190. As described above, the Notice, Access, and Section 1373 Requirements violate

26 separation of powers principles because they are not authorized by Congress, expressly or impliedly.

27

191. Even if Congress had delegated its authority to impose conditions on Byrne JAG funds,

28 the Notice, Access, and Section 1373 Requirements would violate the Spending Clause by:

AMENDED COMPLAINT CASE NO. 3:17-CV-04642-WHO

40

N:\CXLIT\LI2017\180160\01239533.docx

Case 3:17-cv-04642-WHO Document 61 Filed 12/12/17 Page 42 of 43

1

a. imposing conditions that are ambiguous, see Pennhurst State Sch. & Hosp. v.

2 Halderman, 451 U.S. 1, 17 (1981) (“[I]f Congress intends to impose a condition on the grant of federal

3 moneys, it must do so unambiguously…The legitimacy of Congress’ power to legislate under the

4 spending power . . . rests on whether the State voluntarily and knowingly accepts [Congress’

5 conditions]… There can, of course, be no knowing acceptance if a State is unaware of the conditions

6 or is unable to ascertain what is expected of it.” ); and

7

b. imposing conditions that are not germane to the stated purposes of the Byrne

8 JAG funds, see South Dakota v. Dole, 483 U.S. 203, 207 (1987) (“[C]onditions on federal grants

9 might be illegitimate if they are unrelated ‘to the federal interest in particular national projects or

10 programs.’”).

11

192. The Notice and Access Requirements additionally violate the Spending Clause by

12 imposing conditions that would require Byrne JAG recipients to engage in unconstitutional activity

13 such as detaining individuals without probable cause in violation of the Fourth Amendment, see Dole,

14 483 U.S. at 210 (Congress’s spending power “may not be used to induce the States to engage in

15 activities that would themselves be unconstitutional.”).

16

17

PRAYER FOR RELIEF

18

Wherefore, San Francisco prays that the Court grant the following relief:

19

1. Declare that Chapters 12H and 12I of the San Francisco Administrative Code comply

20 with Section 1373;

21

2. Declare that San Francisco does not have in place a prohibition or restriction that

22 applies to the program or activity funded under the Byrne JAG program, and which deals with sending

23 to, receiving from, or requesting immigration status information with the federal government, or

24 maintaining such information;

25

3. Declare the Notice, Access, and Section 1373 Requirements Defendants have imposed

26 on the Byrne JAG program unconstitutional;

27

4. Permanently enjoin Defendants from using the Notice, Access, and Section 1373

28 Requirements as funding restrictions for any Byrne JAG awards;

AMENDED COMPLAINT CASE NO. 3:17-CV-04642-WHO

41

N:\CXLIT\LI2017\180160\01239533.docx

Case 3:17-cv-04642-WHO Document 61 Filed 12/12/17 Page 43 of 43

1

5. Enjoin Defendants from denying San Francisco Byrne JAG funding on the basis of

2 Defendants’ assertion that San Francisco does not comply with Section 1373;

3

6. Enjoin Defendants from clawing back San Francisco’s Byrne JAG funds on the basis of

4 Defendants’ assertion that San Francisco does not comply with Section 1373;

5

7. Award San Francisco reasonable costs and attorneys’ fees; and

6

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

7

8 Dated: December 12, 2017

9

DENNIS J. HERRERA

10

City Attorney JESSE C. SMITH

11

RONALD P. FLYNN YVONNE R. MERÉ

12

CHRISTINE VAN AKEN TARA M. STEELEY

13

MOLLIE M. LEE SARA J. EISENBERG

14

AILEEN M. McGRATH

15

Deputy City Attorneys

16

17 By: /s/ Dennis J. Herrera

18

DENNIS J. HERRERA

City Attorney

19

Attorneys for Plaintiff

20

CITY AND COUNTY OF SAN FRANCISCO

21

22

23

24

25

26

27

28
AMENDED COMPLAINT CASE NO. 3:17-CV-04642-WHO

42

N:\CXLIT\LI2017\180160\01239533.docx

Case 3:17-cv-04642-WHO Document 61-1 Filed 12/12/17 Page 1 of 3
EXHIBIT A

Case 3:17-cv-04642-WHO Document 61-1 Filed 12/12/17 Page 2 of 3
U.S. Department of Justice
Office ofJustice Programs
1Vashi11gt<111. D.C 20531
November 15, 2017
Edwin Lee Mayor of the City of San Francisco l Dr. Carlton B. Goodlett Place, Suite 496 San Francisco, CA 941 02
Dear Mayor Lee,
Your FY 2016 Byrne JAG grant award required you to comply with 8 U.S.C. § 1373. Section 1373 compliance is an ongoing requirement that the Department of Justice monitors. The Department is concerned that the fo llowing San Francisco laws, policies, or practices may violate section 1373:
• San Francisco Administrative Code Section 12H.2. This section prohibits the use of city funds or resources to "assist in the enforcement of Federal immigration law or to gather or disseminate infom1ation regarding release status of individuals or other personal information . . . ." The Department is concerned that this appears to restrict the sending, maintaining, or receiving of information regarding immigration status, in violation of section 1373(a) and
(b).
• San Francisco Administrative Code Section 121.3. This section restricts ..provid[ing] any individual's personal information to a federal immigration officer . . . ." The Department is concerned that this appears to restrict the sending of information regarding immigration status, in violation of section l373(a).
By December 8, 2017, please submit a response to this letter that addresses whether San Francisco has laws, policies, or practices that violate section 1373, including those discussed above. In addition to your compliance in FY 2016, please address whether you would comply with section 1373 throughout the award period, shou ld you receive an FY 2017 Byrne JAG grant award. To the extent San Francisco laws or policies contain so called "savings clauses," please explain in your submission the way these savings clauses are interpreted and applied, and whether these interpretations are communicated to San Francisco officers or employees.
1

Case 3:17-cv-04642-WHO Document 61-1 Filed 12/12/17 Page 3 of 3 The Department has not made a final detennination regarding San Francisco's compliance with section 1373. This letter does not constitute final agency action and nothing in this letter creates any right or benefit enforceable at law against the United States.
Sincerely.
QL..,f?.7./...-.-
Alan Hanson Acting Assistant Attorney General
2

Case 3:17-cv-04642-WHO Document 61-2 Filed 12/12/17 Page 1 of 42
EXHIBIT B

Case 3:17-cv-04642-WHO Document 61-2 Filed 12/12/17 Page 2 of 42

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.”

Case 3:17-cv-04642-WHO Document 61-2 Filed 12/12/17 Page 3 of 42
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
2
BJA-2017-11301

Case 3:17-cv-04642-WHO Document 61-2 Filed 12/12/17 Page 4 of 42
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
3
BJA-2017-11301

Case 3:17-cv-04642-WHO Document 61-2 Filed 12/12/17 Page 5 of 42 Appendix II.................................................................................................................... 37 Appendix III................................................................................................................... 39 Appendix IV .................................................................................................................. 40
4
BJA-2017-11301

Case 3:17-cv-04642-WHO Document 61-2 Filed 12/12/17 Page 6 of 42
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.
5
BJA-2017-11301

Case 3:17-cv-04642-WHO Document 61-2 Filed 12/12/17 Page 7 of 42
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.
6
BJA-2017-11301

Case 3:17-cv-04642-WHO Document 61-2 Filed 12/12/17 Page 8 of 42
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
7
BJA-2017-11301

Case 3:17-cv-04642-WHO Document 61-2 Filed 12/12/17 Page 9 of 42

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
8
BJA-2017-11301

Case 3:17-cv-04642-WHO Document 61-2 Filed 12/12/17 Page 10 of 42
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
9
BJA-2017-11301

Case 3:17-cv-04642-WHO Document 61-2 Filed 12/12/17 Page 11 of 42
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.
10
BJA-2017-11301

Case 3:17-cv-04642-WHO Document 61-2 Filed 12/12/17 Page 12 of 42
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.
11
BJA-2017-11301

Case 3:17-cv-04642-WHO Document 61-2 Filed 12/12/17 Page 13 of 42
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.
12
BJA-2017-11301

Case 3:17-cv-04642-WHO Document 61-2 Filed 12/12/17 Page 14 of 42
(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.
13
BJA-2017-11301

Case 3:17-cv-04642-WHO Document 61-2 Filed 12/12/17 Page 15 of 42
• 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
14
BJA-2017-11301

Case 3:17-cv-04642-WHO Document 61-2 Filed 12/12/17 Page 16 of 42
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.)
15
BJA-2017-11301

Case 3:17-cv-04642-WHO Document 61-2 Filed 12/12/17 Page 17 of 42
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.
16
BJA-2017-11301

Case 3:17-cv-04642-WHO Document 61-2 Filed 12/12/17 Page 18 of 42
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).
17
BJA-2017-11301

Case 3:17-cv-04642-WHO Document 61-2 Filed 12/12/17 Page 19 of 42
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
18
BJA-2017-11301

Case 3:17-cv-04642-WHO Document 61-2 Filed 12/12/17 Page 20 of 42
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
19
BJA-2017-11301

Case 3:17-cv-04642-WHO Document 61-2 Filed 12/12/17 Page 21 of 42
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
20
BJA-2017-11301

Case 3:17-cv-04642-WHO Document 61-2 Filed 12/12/17 Page 22 of 42
(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.
21
BJA-2017-11301

Case 3:17-cv-04642-WHO Document 61-2 Filed 12/12/17 Page 23 of 42
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
22
BJA-2017-11301

Case 3:17-cv-04642-WHO Document 61-2 Filed 12/12/17 Page 24 of 42

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

Name/Project Federal or State Funding Agency

SAMPLE Name
COPS Hiring

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.

23
BJA-2017-11301

Case 3:17-cv-04642-WHO Document 61-2 Filed 12/12/17 Page 25 of 42
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
24
BJA-2017-11301

Case 3:17-cv-04642-WHO Document 61-2 Filed 12/12/17 Page 26 of 42
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
25
BJA-2017-11301

Case 3:17-cv-04642-WHO Document 61-2 Filed 12/12/17 Page 27 of 42
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.
26
BJA-2017-11301

Case 3:17-cv-04642-WHO Document 61-2 Filed 12/12/17 Page 28 of 42
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
27
BJA-2017-11301

Case 3:17-cv-04642-WHO Document 61-2 Filed 12/12/17 Page 29 of 42
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
28
BJA-2017-11301

Case 3:17-cv-04642-WHO Document 61-2 Filed 12/12/17 Page 30 of 42
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
29
BJA-2017-11301

Case 3:17-cv-04642-WHO Document 61-2 Filed 12/12/17 Page 31 of 42
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:
30
BJA-2017-11301

Case 3:17-cv-04642-WHO Document 61-2 Filed 12/12/17 Page 32 of 42
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
31
BJA-2017-11301

Case 3:17-cv-04642-WHO Document 61-2 Filed 12/12/17 Page 33 of 42
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.
32
BJA-2017-11301

Case 3:17-cv-04642-WHO Document 61-2 Filed 12/12/17 Page 34 of 42

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.

33
BJA-2017-11301

Case 3:17-cv-04642-WHO Document 61-2 Filed 12/12/17 Page 35 of 42

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)

34
BJA-2017-11301

Case 3:17-cv-04642-WHO Document 61-2 Filed 12/12/17 Page 36 of 42
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.
35
BJA-2017-11301

Case 3:17-cv-04642-WHO Document 61-2 Filed 12/12/17 Page 37 of 42
36
BJA-2017-11301

Case 3:17-cv-04642-WHO Document 61-2 Filed 12/12/17 Page 38 of 42
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
37
BJA-2017-11301

Case 3:17-cv-04642-WHO Document 61-2 Filed 12/12/17 Page 39 of 42
38
BJA-2017-11301

Case 3:17-cv-04642-WHO Document 61-2 Filed 12/12/17 Page 40 of 42
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”)
39
BJA-2017-11301

Case 3:17-cv-04642-WHO Document 61-2 Filed 12/12/17 Page 41 of 42
Appendix IV
OJP Certified Standard Assurances
40
BJA-2017-11301

Case 3:17-cv-04642-WHO Document 61-2 Filed 12/12/17 Page 42 of 42
41
BJA-2017-11301

Case 3:17-cv-04642-WHO Document 61-3 Filed 12/12/17 Page 1 of 6
EXHIBIT C

Case 3:17-cv-04642-WHO Document 61-3 Filed 12/12/17 Page 2 of 6

Case 3:17-cv-04642-WHO Document 61-3 Filed 12/12/17 Page 3 of 6

Case 3:17-cv-04642-WHO Document 61-3 Filed 12/12/17 Page 4 of 6

Case 3:17-cv-04642-WHO Document 61-3 Filed 12/12/17 Page 5 of 6

Case 3:17-cv-04642-WHO Document 61-3 Filed 12/12/17 Page 6 of 6

Case 3:17-cv-04642-WHO Document 61-4 Filed 12/12/17 Page 1 of 45
EXHIBIT D

Case 3:17-cv-04642-WHO Document 61-4 Filed 12/12/17 Page 2 of 45

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 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 Northern 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 solicitation as Appendix I.
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 II. (The text of 8 U.S.C. § 1373 appears in Appendix III.)
The expected allocations by State for the FY 2017 JAG program can be found at: https://www.bja.gov/Funding/17JAGStateAllocations.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.
1

Case 3:17-cv-04642-WHO Document 61-4 Filed 12/12/17 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-04642-WHO Document 61-4 Filed 12/12/17 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-04642-WHO Document 61-4 Filed 12/12/17 Page 5 of 45 Appendix I..................................................................................................................... 37 Appendix II.................................................................................................................... 39 Appendix III................................................................................................................... 41 Appendix IV .................................................................................................................. 43
4

Case 3:17-cv-04642-WHO Document 61-4 Filed 12/12/17 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-04642-WHO Document 61-4 Filed 12/12/17 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.
6

Case 3:17-cv-04642-WHO Document 61-4 Filed 12/12/17 Page 8 of 45
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,
7

Case 3:17-cv-04642-WHO Document 61-4 Filed 12/12/17 Page 9 of 45
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
8

Case 3:17-cv-04642-WHO Document 61-4 Filed 12/12/17 Page 10 of 45
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
9

Case 3:17-cv-04642-WHO Document 61-4 Filed 12/12/17 Page 11 of 45
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
10

Case 3:17-cv-04642-WHO Document 61-4 Filed 12/12/17 Page 12 of 45
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.
11

Case 3:17-cv-04642-WHO Document 61-4 Filed 12/12/17 Page 13 of 45
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
12

Case 3:17-cv-04642-WHO Document 61-4 Filed 12/12/17 Page 14 of 45
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.)
13
BJA-2017-11360

Case 3:17-cv-04642-WHO Document 61-4 Filed 12/12/17 Page 15 of 45
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.
14
BJA-2017-11360

Case 3:17-cv-04642-WHO Document 61-4 Filed 12/12/17 Page 16 of 45
(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.
15
BJA-2017-11360

Case 3:17-cv-04642-WHO Document 61-4 Filed 12/12/17 Page 17 of 45
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.)
16
BJA-2017-11360

Case 3:17-cv-04642-WHO Document 61-4 Filed 12/12/17 Page 18 of 45
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.
17
BJA-2017-11360

Case 3:17-cv-04642-WHO Document 61-4 Filed 12/12/17 Page 19 of 45
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.
18
BJA-2017-11360

Case 3:17-cv-04642-WHO Document 61-4 Filed 12/12/17 Page 20 of 45
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.
19
BJA-2017-11360

Case 3:17-cv-04642-WHO Document 61-4 Filed 12/12/17 Page 21 of 45
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.
20
BJA-2017-11360

Case 3:17-cv-04642-WHO Document 61-4 Filed 12/12/17 Page 22 of 45
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.
21
BJA-2017-11360

Case 3:17-cv-04642-WHO Document 61-4 Filed 12/12/17 Page 23 of 45
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)
22
BJA-2017-11360

Case 3:17-cv-04642-WHO Document 61-4 Filed 12/12/17 Page 24 of 45
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
23
BJA-2017-11360

Case 3:17-cv-04642-WHO Document 61-4 Filed 12/12/17 Page 25 of 45
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).
24
BJA-2017-11360

Case 3:17-cv-04642-WHO Document 61-4 Filed 12/12/17 Page 26 of 45

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

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.

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

25
BJA-2017-11360

Case 3:17-cv-04642-WHO Document 61-4 Filed 12/12/17 Page 27 of 45
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:
26
BJA-2017-11360

Case 3:17-cv-04642-WHO Document 61-4 Filed 12/12/17 Page 28 of 45
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.
27
BJA-2017-11360

Case 3:17-cv-04642-WHO Document 61-4 Filed 12/12/17 Page 29 of 45
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
28
BJA-2017-11360

Case 3:17-cv-04642-WHO Document 61-4 Filed 12/12/17 Page 30 of 45
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:
29
BJA-2017-11360

Case 3:17-cv-04642-WHO Document 61-4 Filed 12/12/17 Page 31 of 45
• 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.
30
BJA-2017-11360

Case 3:17-cv-04642-WHO Document 61-4 Filed 12/12/17 Page 32 of 45
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.
31
BJA-2017-11360

Case 3:17-cv-04642-WHO Document 61-4 Filed 12/12/17 Page 33 of 45
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.)
32
BJA-2017-11360

Case 3:17-cv-04642-WHO Document 61-4 Filed 12/12/17 Page 34 of 45
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
33
BJA-2017-11360

Case 3:17-cv-04642-WHO Document 61-4 Filed 12/12/17 Page 35 of 45
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.
34
BJA-2017-11360

Case 3:17-cv-04642-WHO Document 61-4 Filed 12/12/17 Page 36 of 45

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)

35
BJA-2017-11360

Case 3:17-cv-04642-WHO Document 61-4 Filed 12/12/17 Page 37 of 45

_____ 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)

36
BJA-2017-11360

Case 3:17-cv-04642-WHO Document 61-4 Filed 12/12/17 Page 38 of 45
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.
37
BJA-2017-11360

Case 3:17-cv-04642-WHO Document 61-4 Filed 12/12/17 Page 39 of 45
38
BJA-2017-11360

Case 3:17-cv-04642-WHO Document 61-4 Filed 12/12/17 Page 40 of 45
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.htm
39
BJA-2017-11360

Case 3:17-cv-04642-WHO Document 61-4 Filed 12/12/17 Page 41 of 45
40
BJA-2017-11360

Case 3:17-cv-04642-WHO Document 61-4 Filed 12/12/17 Page 42 of 45
Appendix III
8 U.S.C. § 1373
41
BJA-2017-11360

Case 3:17-cv-04642-WHO Document 61-4 Filed 12/12/17 Page 43 of 45
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”)
42
BJA-2017-11360

Case 3:17-cv-04642-WHO Document 61-4 Filed 12/12/17 Page 44 of 45
Appendix IV
OJP Certified Standard Assurances
43
BJA-2017-11360

Case 3:17-cv-04642-WHO Document 61-4 Filed 12/12/17 Page 45 of 45
44
BJA-2017-11360

 
 Case 3:17-cv-04642-WHO Document 66 Filed 01/19/18 Page 1 of 36

1 CHAD A. READLER

2

Acting Assistant Attorney General JOHN R. TYLER

3

Assistant Director W. SCOTT SIMPSON (Va. Bar #27487)

4 Senior Trial Counsel

Department of Justice, Room 7210
5 Civil Division, Federal Programs Branch

6

20 Massachusetts Avenue, NW Washington, D.C. 20530

7

Telephone: Facsimile:

(202) 514-3495 (202) 616-8470

8 E-mail:

scott.simpson@usdoj.gov

9 COUNSEL FOR DEFENDANTS

10

JEFFERSON B. SESSIONS III, Attorney General of the United States; ALAN R.

11 HANSON, Principal Deputy Assistant Attorney
General; and U.S. DEPARTMENT OF JUSTICE

12

13

IN THE UNITED STATES DISTRICT COURT

14

FOR THE NORTHERN DISTRICT OF CALIFORNIA

15

SAN FRANCISCO DIVISION

16

CITY AND COUNTY OF SAN
17 FRANCISCO,

No. 3:17-cv-04642-WHO

18

Plaintiff,

19

v.

20 JEFFERSON B. SESSIONS III, Attorney 21 General of the United States, et al.,

22

Defendants.

DEFENDANTS’ NOTICE OF MOTION AND MOTION TO DISMISS; MEMORANDUM OF POINTS AND AUTHORITIES

Date: Time:

February 28, 2018 2:00 p.m.

23

24

25

26

27

28

Defs’ Motion to Dismiss; Memo. No. 3:17-cv-04642-WHO

Case 3:17-cv-04642-WHO Document 66 Filed 01/19/18 Page 2 of 36

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........................................................... 4

8

I. The Immigration and Nationality Act ......................................................................... 4

9

II. USDOJ Office of Justice Programs and the Byrne JAG Program ............................ 5

10

III. San Francisco’s Ordinances .................................................................................... 7

11

IV. Recent Developments .................................................................................................. 8

12 ARGUMENT ........................................................................................................................................ 9

13

I. San Francisco Is Not Entitled to a Declaratory Judgment Regarding Compliance with Section 1373............................................................ 11

14

A. Plaintiff’s Request for a Ruling Regarding Compliance

15

with Section 1373 Is Non-Justiciable........................................................ 11

16

1. Plaintiff’s Request for a Ruling Regarding Chapters 12H and 12I Is Constitutionally Unripe ........................................... 12

17

2. Plaintiff Lacks Standing to Seek a Ruling Regarding

18

Its Actual Conduct............................................................................ 13

19

B. Alternatively, the Court Should Deny Plaintiff’s Request for a Ruling that Its Ordinances Comply with Section 1373............................. 15

20

1. Chapter 12I.................................................................................... 15

21

2. Chapter 12H .................................................................................. 17

22

II. The Challenged Immigration-Related Byrne JAG Conditions Are Lawful ............ 20

23

A. The Conditions Are Authorized by Statute and Do Not

24

Violate the Separation of Powers.................................................................. 20

25

B. The Conditions Are Consistent with the Spending Clause .......................... 22

26

1. The Challenged Conditions are Unambiguous ................................ 23

27

2. The Challenged Conditions Are Related to the Purposes of the Byrne JAG Program ............................................................... 25

28

Defs’ Motion to Dismiss; Memo.

i

No. 3:17-cv-04642-WHO

Case 3:17-cv-04642-WHO Document 66 Filed 01/19/18 Page 3 of 36

1

3. The Challenged Conditions Do Not Violate any

“Independent Constitutional Bar” ................................................... 27

2

CONCLUSION................................................................................................................................... 28

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.

ii

No. 3:17-cv-04642-WHO

Case 3:17-cv-04642-WHO Document 66 Filed 01/19/18 Page 4 of 36

1

TABLE OF AUTHORITIES

2

3 CONSTITUTION

4 U.S. Const. art. I, § 8, cl. 1 ....................................................................................................... 21, 23

5 U.S. Const. art. III, § 2, cl. 1 .......................................................................................................... 11

6 7 CASES 8 Abbott Labs. v. Gardner, 387 U.S. 136 (1967) .............................................................................. 12

9 Ardalan v. McHugh, 2014 WL 3846062 n.10 (N.D. Cal. Aug. 4, 2014)....................................... 13

10 Arizona v. United States, 567 U.S. 387 (2012) .......................................................................... 4, 26
11 Barbour v. Wash. Metro. Area Transit Auth., 374 F.3d 1161 (D.C. Cir. 2004) ............................ 25 12
Benning v. Georgia, 391 F.3d 1299 (11th Cir. 2004) .................................................................... 24
13 14 Bigelow v. Virginia, 421 U.S. 809 (1975)...................................................................................... 12 15 Bologna v. San Francisco, 121 Cal. Rptr. 3d 406 (Cal. App. 2011) ............................................. 17

16 Charles v. Verhagen, 348 F.3d 601 (7th Cir. 2003)....................................................................... 24

17 City of Chicago v. Sessions, 264 F. Supp. 3d 933 (N.D. Ill. 2017)............................................ 9, 17

18 City of Chicago v. Sessions, 2017 WL 5499167 (N.D. Ill. Nov. 16, 2017) ................................... 13
19 Conservation Force v. Salazar, 646 F.3d 1240 (9th Cir. 2011) ...................................................... 9 20
Coons v. Lew, 762 F.3d 891 (9th Cir. 2014) .................................................................................. 12
21 22 Copeland v. Ryan, 852 F.3d 900 (9th Cir. 2017) ........................................................................... 20
23 Courthouse News Serv. v. Planet, 750 F.3d 776 (9th Cir. 2014) ..................................................... 9

24 Cty. of Santa Clara v. Trump, 250 F. Supp. 3d 497 (N.D. Cal. 2017)........................................... 21

25 Davis v. Fenton, 26 F. Supp. 3d 727 (N.D. Ill. 2014) .................................................................... 16

26 Dean v. United States, 556 U.S. 568 (2009) .................................................................................. 16

27 DKT Mem’l Fund Ltd. v. AID, 887 F.2d 275 (D.C. Cir. 1989).................................................. 3, 21 28

Defs’ Motion to Dismiss; Memo.

iii

No. 3:17-cv-04642-WHO

Case 3:17-cv-04642-WHO Document 66 Filed 01/19/18 Page 5 of 36

1 Duvall v. Att’y Gen. of U.S., 436 F.3d 382 (3d Cir. 2006)............................................................. 26

2 Fonseca v. Fong, 167 Cal. App. 4th 922 (2008)............................................................................ 18
3 Haw. Cty. Green Party v. Clinton, 14 F. Supp. 2d 1198 (D. Haw. 1998) ..................................... 11 4
Lee v. City of Los Angeles, 250 F.3d 668 (9th Cir. 2001) ................................................................ 9
5 6 Louisiana Mun. Police Emps.’ Ret. Sys. v. Wynn, 829 F.3d 1048 (9th Cir. 2016) .......................... 9
7 Mayweathers v. Newland, 314 F.3d 1062 (9th Cir. 2002) ......................................................... 3, 25

8 Morales v. Trans World Airlines, Inc., 504 U.S. 374 (1992)......................................................... 16

9 Navarro v. Block, 250 F.3d 729 (9th Cir. 2001) .............................................................................. 9

10 New York v. United States, 505 U.S. 144 (1992) ........................................................................... 25

11 Or. Bureau of Labor & Indus. ex rel. Richardson v. U.S. W. Commc’ns, Inc.,

12

288 F.3d 414 (9th Cir. 2002) ..................................................................................................... 11

13 Padilla v. Kentucky, 559 U.S. 356 (2010) ..................................................................................... 26

14 Pennhurst State Sch. & Hosp. v. Halderman, 451 U.S. 1 (1981) .................................................. 23

15 Pollara v. Radiant Logistics Inc., 2012 WL 12887095 (C.D. Cal. Sept. 13, 2012) ...................... 11

16

Pollution Denim & Co. v. Pollution Clothing Co., 2009 WL 10672270

17

(C.D. Cal. Feb. 9, 2009)....................................................................................................... 12, 14

18 Preap v. Johnson, 831 F.3d 1193 (9th Cir. 2016).......................................................................... 19 19 Price v. City of Stockton, 390 F.3d 1105 (9th Cir. 2004)............................................................... 10 20 21 S. Dakota v. Dole, 483 U.S. 203 (1987).................................................................................. passim 22 Skydive Arizona, Inc. v. Quattrocchi, 673 F.3d 1105 (9th Cir. 2012)............................................ 10
23 Steel Co. v. Citizens for a Better Env’t, 523 U.S. 83 (1998).................................................... 11, 14

24 Steinle v. San Francisco, 230 F. Supp. 3d 994 (N.D. Cal. 2017) .................................................. 17

25 Stone v. INS, 514 U.S. 386 (1995) ................................................................................................. 22

26 Texas v. United States, 523 U.S. 296 (1998) ........................................................................... 12, 13 27
Wash. Legal Found. v. Legal Found. of Wash., 271 F.3d 835 (9th Cir. 2001),
28 aff’d sub nom. Brown v. Legal Found. of Wash., 538 U.S. 216 (2003)..................................... 12

Defs’ Motion to Dismiss; Memo.

iv

No. 3:17-cv-04642-WHO

Case 3:17-cv-04642-WHO Document 66 Filed 01/19/18 Page 6 of 36

1 2 Whitmore v. Arkansas, 495 U.S. 149 (1990) ........................................................................... 12, 14

3
STATUTES
4
8 U.S.C. § 1101 ................................................................................................................................ 4
5 6 8 U.S.C. § 1101(a)(15) ................................................................................................................... 16
7 8 U.S.C. § 1226 ........................................................................................................................ 16, 19

8 8 U.S.C. § 1227(a)(1)(C) ............................................................................................................... 16

9 8 U.S.C. § 1227(a)(2) ..................................................................................................................... 25

10 8 U.S.C. § 1231(a)(4) ..................................................................................................................... 18
11 8 U.S.C. § 1252c ............................................................................................................................ 26 12
8 U.S.C. § 1324(c) ......................................................................................................................... 26
13
8 U.S.C. § 1357(a)(1) ....................................................................................................................... 4
14 15 8 U.S.C. § 1357(g) ......................................................................................................................... 26
16 8 U.S.C. § 1357(g)(10)(A) ....................................................................................................... 16, 19

17 8 U.S.C. § 1373(a) ................................................................................................................... 15, 18

18 8 U.S.C. § 1373(b) ........................................................................................................................... 5

19 8 U.S.C. § 1373(c) ......................................................................................................................... 16
20 28 U.S.C. § 530C(a)(4) .................................................................................................................. 21 21
34 U.S.C. § 10101 ...................................................................................................................... 5, 21
22 23 34 U.S.C. § 10102(a)(1) ................................................................................................................. 25
24 34 U.S.C. § 10102(a)(2) ............................................................................................................... 3, 5

25 34 U.S.C. § 10102(a)(6) ................................................................................................... 3, 5, 21, 26

26 34 U.S.C. § 10110 .......................................................................................................................... 21

27 34 U.S.C. §§ 10151-58..................................................................................................................... 5

28

Defs’ Motion to Dismiss; Memo.

v

No. 3:17-cv-04642-WHO

Case 3:17-cv-04642-WHO Document 66 Filed 01/19/18 Page 7 of 36

1 34 U.S.C. § 10152(a)(1) ................................................................................................................. 25

2 34 U.S.C. § 10153(a) ....................................................................................................................... 6
3 34 U.S.C. § 10154 .................................................................................................................... 13, 27 4
34 U.S.C. § 10156 ............................................................................................................................ 5
5
34 U.S.C. § 10202(c)(1) ................................................................................................................... 6
6 7 34 U.S.C. § 10251(a)(1) ............................................................................................................. 5, 25
8 34 U.S.C. § 10444(7) ..................................................................................................................... 22

9 41 U.S.C. § 4712 ............................................................................................................................ 24

10 Omnibus Crime Control and Safe Streets Act, Pub. L. No. 90-351,
82 Stat. 197 (1968) ...................................................................................................................... 5
11

12

Joint Resolution Making Continuing Appropriations for FY 1985, Pub. L. No. 98-473, Pub. L. No. 98-473 (1984) ....................................................................... 22

13 Violence Against Women and Department of Justice Reauthorization Act of 2005,

14

Pub. L. No. 109-162, 119 Stat. 2960 (2006).............................................................................. 26

15 Dep’t of Justice Reauthorization Act of 2005, Pub. L. No. 109-162,

16

119 Stat. 2960 (2006) .......................................................................................................... 22, 27

17 Consolidated Appropriations Act, Pub. L. No. 115-31, 131 Stat. 135 (2017) ................................. 6

18 CAL. HEALTH & SAFETY § 11369................................................................................................... 18

19 S.F., CAL., ADMIN. CODE ch. 12H, § 12H.1 ........................................................................... 2, 7, 20

20 S.F., CAL., ADMIN. CODE ch. 12H, § 12H.2 ............................................................................ passim
21 S.F., CAL., ADMIN. CODE ch. 12H, § 12H.3 ................................................................................... 20 22
S.F., CAL., ADMIN. CODE ch. 12H, § 12H.4 ..................................................................................... 8
23 24 S.F., CAL., ADMIN. CODE ch. 12I, § 12I.2 ...................................................................................... 15
25 S.F., CAL., ADMIN. CODE ch. 12I, § 12I.3(e).................................................................... 2, 8, 10, 15

26 S.F., CAL., ADMIN. CODE ch. 12I, § 12I.5(b)............................................................................. 17

27

28

Defs’ Motion to Dismiss; Memo.

vi

No. 3:17-cv-04642-WHO

Case 3:17-cv-04642-WHO Document 66 Filed 01/19/18 Page 8 of 36

1 LEGISLATIVE MATERIALS
2 H.R. Rep. No. 109-233 (2005) ...................................................................................................... 21 3 H.R. Rep. No. 104-469 (1996) .......................................................................................................... 17 4

5 ADMINISTRATIVE AND EXECUTIVE MATERIALS
6 28 C.F.R. Part 18 ..................................................................................................................... 13, 23 7 Exec. Order No. 13,688, 80 Fed. Reg. 3451 (Jan. 16, 2015) .......................................................... 6 8

9 OTHER AUTHORITIES
10 Black’s Law Dictionary (5th ed. 1979) ................................................................................... 25, 26 11

12

13

14

15

16

17

18

19

20

21

22

23

24

25

26

27

28

Defs’ Motion to Dismiss; Memo.

vii

No. 3:17-cv-04642-WHO

Case 3:17-cv-04642-WHO Document 66 Filed 01/19/18 Page 9 of 36

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, as a condition of certain federal law enforcement grants, that state and

14 local government grant recipients comply with federal law and cooperate in providing certain

15 information needed for federal law enforcement. Section 1373 of Title 8, U.S. Code, part of the

16 Immigration of Nationality Act (“INA”), bars state and local governments from prohibiting or

17 restricting the exchange of “information regarding the . . . citizenship or immigration status” of any

18 individual with federal immigration authorities. Other provisions of the INA contemplate that

19 federal, state, and local authorities will cooperate on immigration enforcement and that federal

20 authorities will take custody of certain aliens upon their release from state or local custody.

21

The Edward Byrne Memorial Justice Assistance Grant Program (“Byrne JAG Program”)

22 provides federal funds for state and local law enforcement. These funds serve to aid both local and

23 cooperative law enforcement priorities. In furtherance of the INA and the statutes governing the

24 Byrne JAG Program, USDOJ requires Byrne JAG grantees to comply with Section 1373 as a

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 (Dkt. No. 61 ¶ 28). Undersigned counsel does not purport to represent those individuals, and claims against them are not at issue in

28 this motion to dismiss. Moreover, because those individuals have not been named or served,
granting this motion would resolve this litigation in its entirety.

Defs’ Motion to Dismiss; Memo.

No. 3:17-cv-04642-WHO

Case 3:17-cv-04642-WHO Document 66 Filed 01/19/18 Page 10 of 36

1 condition of receiving federal funds. Also, Byrne JAG grants 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.

4

Plaintiff, the City and County of San Francisco, has adopted laws that frustrate the federal

5 government’s ability to locate aliens who have committed crimes and remove them from the

6 country. Specifically, plaintiff has enacted an ordinance declaring that it is “a City and County of

7 Refuge.” S.F., CAL., ADMIN. CODE ch. 12H, § 12H.1. The ordinance provides, among other

8 things, that “[n]o department, agency, commission, officer, or employee of the City and County

9 of San Francisco shall use any City funds or resources to assist in the enforcement of Federal

10 immigration law . . . or to gather or disseminate information regarding release status of individ-

11 uals or any other such personal information . . . .” Id. § 12H.2. A second ordinance specifies that

12 San Francisco “[l]aw enforcement officials shall not . . . provide any individual’s personal infor-

13 mation to a federal immigration officer, on the basis of an administrative warrant, prior deporta-

14 tion order, or other civil immigration document based solely on alleged violations of the civil

15 provisions of immigration laws.” S.F., CAL., ADMIN. CODE ch. 12I, § 12I.3(e).2 The second

16 ordinance includes no saving clause for compliance with federal law.

17

Alleging that it has applied for a Byrne JAG grant in Fiscal Year 2017, plaintiff seeks a

18 declaratory judgment that Chapters 12H and 12I satisfy the Section 1373 compliance condition.

19 Administratively, however, USDOJ has not denied the plaintiff any grant funds based on its

20 ordinances, such that the request for such a declaration regarding the City’s ordinances is unripe.

21 Further, to the extent the plaintiff seeks a declaration that its actual conduct (as opposed to its laws)

22 complies with Section 1373, the City lacks standing to assert such a claim.

23

Moreover, if this Court were to evaluate whether the San Francisco ordinances are

24 consistent, on their face, with Section 1373, it would have to conclude that there is a conflict and

25 deny plaintiff’s request for a contrary declaration on its merits. At least one of the San Francisco

26

27

2 These ordinances, Chapters 12H and 12I of plaintiff’s Administrative Code, are Exhibits

28

A and B, respectively, to the Request for Judicial Notice in Support of Defendants’ Motion to Dismiss, submitted herewith.

Defs’ Motion to Dismiss; Memo.

2

No. 3:17-cv-04642-WHO

Case 3:17-cv-04642-WHO Document 66 Filed 01/19/18 Page 11 of 36

1 information-sharing bans flatly contravenes Section 1373. And while the other expansive restric-

2 tions include a saving clause, the reach of and adherence to that clause are not plain.

3

In addition to seeking declaratory relief regarding its laws, San Francisco challenges the

4 Section 1373, access, and notice conditions in the Byrne JAG Program under the constitutional

5 Separation of Powers and the Spending Clause. Both claims are without merit. Congress has

6 expressly authorized the Assistant Attorney General (“AAG”) for USDOJ’s Office of Justice

7 Programs (“OJP”) to impose the challenged conditions. In the very same enactment that created

8 the Byrne JAG Program in 2006, Congress delegated to the AAG the authority to “plac[e] special

9 conditions on all grants,” and to “determin[e] priority purposes for formula grants.” 34 U.S.C.

10 § 10102(a)(6). The Department thus has ample authority to impose the challenged conditions,

11 and their imposition does not violate the constitutional separation of powers. See DKT Mem’l

12 Fund Ltd. v. AID, 887 F.2d 275, 280-81 (D.C. Cir. 1989) (upholding statutory delegation to the

13 Executive to impose terms and conditions on federal spending programs).

14

In relation to plaintiff’s Spending Clause challenge, the challenged conditions bear much

15 more than “some relationship” to the purposes of the Byrne JAG Program, and thus meet the

16 relatedness element of the Spending Clause. See Mayweathers v. Newland, 314 F.3d 1062, 1067

17 (9th Cir. 2002). OJP and the grant programs it administers are designed to strengthen law

18 enforcement and to “maintain liaison” among the various branches of government “in matters

19 relating to criminal justice.” 34 U.S.C. § 10102(a)(2). The challenged conditions emanate from

20 “the Department of Justice’s top priority of reducing violent crime” and the “long-established

21 cooperative principles among law enforcement agencies.” See Request for Judicial Notice

22 (“RJN”), Ex. C (USDOJ Press Release No. 17-826, Attorney General Sessions Announces

23 Immigration Compliance Requirements for Edward Byrne Memorial Justice Assistance Grant

24 Programs (July 25, 2017)). The conditions are also very clear and unambiguous, and they raise

25 no issue under the Fourth Amendment or any other “independent constitutional bar.” See S.

26 Dakota v. Dole, 483 U.S. 203, 210 (1987).

27

In addition to avoiding cooperative federal enforcement efforts through its own, local laws

28 and policies, San Francisco now seeks to do the same with respect to federal prerogatives, asking

Defs’ Motion to Dismiss; Memo.

3

No. 3:17-cv-04642-WHO

Case 3:17-cv-04642-WHO Document 66 Filed 01/19/18 Page 12 of 36

1 the Court to enjoin the Department of Justice from imposing immigration-related law enforce-

2 ment conditions on the receipt of federal funds. Plaintiff’s position would, in essence, allow San

3 Francisco, rather than the Department, to determine the conditions associated with federal grants

4 that Congress has authorized USDOJ to award. The City’s position contravenes clear statutory

5 language authorizing conditions on Byrne JAG funding, and ignores the close relationship among

6 the federally-imposed conditions, federal law enforcement prerogatives, and the purposes of the

7 Byrne JAG Program.

8

For these reasons, plaintiff’s First Amended Complaint and all of its claims should be

9 dismissed.

10

STATUTORY AND ADMINISTRATIVE BACKGROUND

11 I. The Immigration and Nationality Act

12

Enforcement of the immigration laws, including and especially the investigation and appre-

13 hension of criminal aliens, is quintessentially a law enforcement function. Through the INA, 8

14 U.S.C. §§ 1101 et seq., Congress granted the Executive Branch significant authority to control the

15 entry, movement, and other conduct of foreign nationals in the United States. These responsibilities

16 are assigned to law enforcement agencies, as the INA authorizes the Department of Homeland

17 Security (“DHS”), USDOJ, and other Executive agencies to administer and enforce the immigration

18 laws. The INA permits the Executive Branch to exercise considerable discretion to direct enforce-

19 ment pursuant to federal policy objectives. See Arizona v. United States, 567 U.S. 387, 396 (2012).

20

The INA includes several provisions that protect the ability of federal officials to investigate

21 the status of aliens in the United States and otherwise enforce the immigration laws. For example,

22 the statute provides that a federal immigration officer “shall have power without warrant . . . to

23 interrogate any alien or person believed to be an alien as to his right to be or to remain in the United

24 States.” 8 U.S.C. § 1357(a)(1). Separately, pursuant to Section 1373, “a Federal, State, or local

25 government entity or official may not prohibit, or in any way restrict, any government entity or

26 official from sending to, or receiving from, [federal immigration authorities] information regarding

27

28

Defs’ Motion to Dismiss; Memo.

4

No. 3:17-cv-04642-WHO

Case 3:17-cv-04642-WHO Document 66 Filed 01/19/18 Page 13 of 36

1 the citizenship or immigration status, lawful or unlawful, of any individual.” Id. § 1373(a).3 The

2 INA provides that certain classes of aliens shall be removed from the United States upon order of

3 the Attorney General or Secretary of Homeland Security. See, e.g., id. §§ 1227(a), 1228.

4 II. USDOJ Office of Justice Programs and the Byrne JAG Program

5

Title I of the Omnibus Crime Control and Safe Streets Act established the Office of Justice

6 Programs, and provides for OJP to be headed by an Assistant Attorney General. See Pub. L. No.

7 90-351, 82 Stat. 197 (1968), codified as amended at 34 U.S.C. §§ 10101 et seq. Congress gave the

8 AAG certain “[s]pecific, general and delegated powers,” including the power to “maintain liaison

9 with . . . State governments in matters relating to criminal justice.” 34 U.S.C. § 10102(a)(2)

10 (emphasis added). Notably, the statute also authorizes the AAG to “exercise such other powers and

11 functions as may be vested in [him] pursuant to this chapter or by delegation of the Attorney

12 General, including placing special conditions on all grants, and determining priority purposes for

13 formula grants.” Id. § 10102(a)(6) (emphasis added).

14

The same title of the Omnibus Crime Control and Safe Streets Act also established the

15 Byrne JAG Program. See generally 34 U.S.C. §§ 10151-58. Under this program, OJP is authorized

16 to “make grants to States and units of local government . . . to provide additional personnel,

17 equipment . . . and information systems for criminal justice, including for any one or more of

18 [certain enumerated] programs.” Id. § 10152(a)(1). In the same title, “criminal justice” is defined

19 broadly to include various activities of the police, the courts, and “related agencies.” Id.

20 § 10251(a)(1).

21

The Byrne JAG Program provides “formula grants” – that is, grants that, when awarded,

22 must follow a statutory formula based on population, the rate of violent crime, and other factors. Id.

23 §§ 10152(a)(1), 10156. Funding under the Program is subject to annual appropriations. For FY

24

25

3 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 infor-
27 mation to, or requesting or receiving such information from, [federal immigration authorities].

28

(2) Maintaining such information. (3) Exchanging such information with any other Federal, State, or local government entity.”

Defs’ Motion to Dismiss; Memo.

5

No. 3:17-cv-04642-WHO

Case 3:17-cv-04642-WHO Document 66 Filed 01/19/18 Page 14 of 36

1 2017, Congress appropriated $396,000,000 for the Byrne JAG Program, with certain carve-outs

2 from that amount obligated to specific initiatives. See Consolidated Appropriations Act, Pub. L.

3 No. 115-31, Div. B, Title II, 131 Stat. 135, 203 (2017). By statute, in order to request a Byrne JAG

4 grant, the chief executive officer of a State or unit of local government must submit an application

5 “in such form as the Attorney General may require,” 34 U.S.C. § 10153(a); and the application

6 must include, among other things, “[a] certification, made in a form acceptable to the Attorney

7 General . . . that . . . the applicant will comply with . . . all . . . applicable Federal laws,” id.

8 § 10153(a)(5)(D). The application must also contain several assurances, including “[a]n assurance

9 that, for each fiscal year covered by an application, the applicant shall maintain and report such

10 data, records, and information (programmatic and financial) as the Attorney General may

11 reasonably require.” Id. § 10153(a)(4).

12

OJP has historically included a variety of conditions in Byrne JAG award documents. For

13 example, OJP has imposed, without objection, conditions related to information sharing and

14 privacy protection, RJN, Ex. D (San Francisco Byrne JAG 2016) ¶ 26, research using human

15 subjects, see id. ¶ 29, and training, see id. ¶¶ 32-33. Other special conditions historically imposed

16 by the Assistant Attorney General have been inspired by Executive Branch prerogatives, and in

17 some instances resulted in subsequent congressional codification. One such condition, which

18 prohibits use of Byrne JAG funds to purchase military style equipment, relates in part to an

19 Executive Order issued by President Obama in 2015. See id. ¶ 49; Exec. Order No. 13,688, 80

20 Fed. Reg. 3451 (Jan. 16, 2015). Since 2012, other conditions have required that recipients

21 (a) comply with specific national standards when purchasing body armor and (b) institute a

22 “mandatory wear” policy for any purchased armor. RJN, Ex. D ¶¶ 38-39. While those conditions

23 have now been codified by Congress, see 34 U.S.C. §§ 10202(c)(1)(B), (C), they originated as

24 exercises of USDOJ’s authority to impose special conditions. And the Assistant Attorney

25 General has imposed an “American-made” requirement for body armor purchases, something

26 Congress did not choose to codify last year. RJN, Ex. D ¶ 38. The conditions attached to Byrne

27 JAG grants have varied over time, depending on national law enforcement necessities and USDOJ

28 priorities.

Defs’ Motion to Dismiss; Memo.

6

No. 3:17-cv-04642-WHO

Case 3:17-cv-04642-WHO Document 66 Filed 01/19/18 Page 15 of 36

1

For the current Byrne JAG grant cycle, Fiscal Year (“FY”) 2017, OJP notified applicants

2 that awards under the Program will include three conditions requiring modest cooperation with

3 federal law enforcement prerogatives in the immigration setting. Those conditions will require

4 grantees to (1) have a policy of providing DHS with advance notice of the scheduled release date of

5 certain individuals held in state or local correctional facilities (the “notice condition”); (2) have a

6 policy permitting federal agents to access state or local correctional facilities for certain immigra-

7 tion enforcement purposes (the “access condition”); and (3) comply with 8 U.S.C. § 1373, which, as

8 noted above, prohibits state and local government and law enforcement entities or officials from

9 restricting certain communications with DHS (the “Section 1373 condition”). RJN, Ex. E

10 (Greenville SC Award 2017) ¶¶ 53, 55, 56; RJN, Ex. F (Binghamton NY Award 2017) ¶¶ 53, 55,

11 56; First Am. Compl. ¶¶ 103-105 (Dkt. No. 61).

12

Under the “Rules of Construction” within those grant conditions, the award documents

13 make clear that nothing in the notice or access conditions requires a grantee to detain “any

14 individual in custody beyond the date and time the individual would have been released in the

15 absence of this condition.” RJN, Ex. E ¶¶ 55, 56; RJN, Ex. F ¶¶ 55, 56. The documents also

16 make clear that these conditions impose no requirements in relation to any requests by federal

17 immigration authorities to detain aliens, and that the notice condition requires “only as much

18 advance notice as practicable” before the release of an alien. Id. Finally, the conditions apply

19 only to the “program or activity” to be funded under the award (as stated above), and they allow

20 awarded funds to be used for costs incurred in implementing the conditions. Id.

21 III. San Francisco’s Ordinances

22

Chapter 12H of the San Francisco Administrative Code “affirm[s] that the City and

23 County of San Francisco is a City and County of Refuge.” S.F., CAL., ADMIN. CODE ch. 12H,

24 § 12H.1 (RJN, Ex. A). To that end, the Code provides, among other things, that “[n]o

25 department, agency, commission, officer, or employee of the City . . . shall use any City funds or

26 resources to assist in the enforcement of Federal immigration law or to gather or disseminate

27 information regarding release status of individuals or any other such personal information . . .

28 unless such assistance is required by Federal or State statute, regulation, or court decision.” Id.

Defs’ Motion to Dismiss; Memo.

7

No. 3:17-cv-04642-WHO

Case 3:17-cv-04642-WHO Document 66 Filed 01/19/18 Page 16 of 36

1 § 12H.2. The Code then specifies that this “prohibition . . . shall include, but shall not be limited

2 to” four different categories of conduct, among which are “[a]ssisting or cooperating, in one’s

3 official capacity, with any investigation . . . public or clandestine, conducted by the Federal

4 agency charged with enforcement of the Federal immigration law and relating to alleged viola-

5 tions of the civil provisions of the Federal immigration law, except as permitted under Adminis-

6 trative Code Section 12I.3.” Id. § 12H.2(a).

7

To ensure compliance with these prohibitions, the Code requires giving a copy of Chapter

8 12H “to every department, agency and commission of the City” and “inform[ing] all employees

9 . . . of the prohibitions in [the] ordinance, the duty of all . . . employees to comply with the

10 prohibitions . . . and [the fact] that employees who fail to comply with the prohibitions . . . shall

11 be subject to appropriate disciplinary action.” Id. § 12H.3. Chapter 12H also requires giving

12 each employee “a written directive with instructions for implementing the provisions of this

13 Chapter.” Id. Finally, Chapter 12H includes a section on “Enforcement” that requires the City’s

14 Human Rights Commission to review compliance with the “mandates” of the Chapter by

15 “departments, agencies, commissions and employees . . . in particular instances in which there is

16 question of noncompliance or when a complaint alleging noncompliance has been lodged.” Id.

17 § 12H.4.

18

The next chapter of the Administrative Code, Chapter 12I, primarily addresses the

19 detention of individuals by San Francisco law enforcement officials and the City’s handling of

20 federal immigration detainer requests. Chapter 12I provides that San Francisco “[l]aw

21 enforcement officials shall not . . . provide any individual’s personal information to a federal

22 immigration officer, on the basis of an administrative warrant, prior deportation order, or other

23 civil immigration document based solely on alleged violations of the civil provisions of

24 immigration laws.” S.F., CAL., ADMIN. CODE ch. 12I, § 12I.3(e) (RJN, Ex. B).

25 IV. Recent Developments

26

Plaintiff alleges that it submitted an application for an FY 2017 Byrne JAG grant on

27 September 5, 2017 (Dkt. No. 61 ¶ 127). On November 15, 2017, OJP sent a letter to San Francisco

28 stating that USDOJ was “concerned” that Chapter 12H or 12I of the Administrative Code “may”

Defs’ Motion to Dismiss; Memo.

8

No. 3:17-cv-04642-WHO

Case 3:17-cv-04642-WHO Document 66 Filed 01/19/18 Page 17 of 36

1 violate Section 1373 (id., Ex. A). The letter asked the City to submit a response explaining its

2 compliance with Section 1373, and stated that USDOJ “ha[d] not made a final determination

3 regarding San Francisco’s compliance” (id.). San Francisco responded in a letter dated December

4 7, 2017, asserting that Chapters 12H and 12I complied with Section 1373 as “properly construed”

5 (id., Ex. C).

6

On September 15, 2017, a federal district court entered a partial preliminary injunction in

7 similar litigation brought by the City of Chicago. City of Chicago v. Sessions, 264 F. Supp. 3d 933,

8 945 (N.D. Ill. 2017) (“Chicago I”). The Chicago court enjoined the notice and access conditions in

9 the Byrne JAG Program, but declined plaintiff’s request to enjoin the Section 1373 condition. See

10 id. (noting that “Congress could [rationally] expect an entity receiving federal funds to certify its

11 compliance with [Section 1373], as the entity is – independent of receiving federal funds –

12 obligated to comply”). Defendants appealed the preliminary injunction order; that appeal is now

13 fully briefed and scheduled to be argued before the U.S. Court of Appeals for the Seventh Circuit

14 on January 19, 2018, Chicago v. Sessions, 17-2991 (7th Cir.).

15

ARGUMENT

16

Defendants move for dismissal of this action under Rule 12(b)(1) and 12(b)(6) of the

17 Federal Rules of Civil Procedure. A motion under Rule 12(b)(1) challenges the subject matter

18 jurisdiction of the court to reach a claim. “A ‘facial’ attack [on jurisdiction] asserts that a

19 complaint’s allegations are themselves insufficient to invoke jurisdiction,” Courthouse News

20 Serv. v. Planet, 750 F.3d 776, 780 n.3 (9th Cir. 2014), while a factual challenge to jurisdiction

21 “relies on affidavits or any other evidence properly before the court to contest the truth of the

22 complaint’s allegations,” id. at 780 (citation omitted). A motion under Rule 12(b)(6) “tests the

23 legal sufficiency of a claim.” Navarro v. Block, 250 F.3d 729, 732 (9th Cir. 2001). Dismissal

24 under this rule is proper if there is a “lack of a cognizable legal theory or the absence of sufficient

25 facts alleged under a cognizable legal theory.” Conservation Force v. Salazar, 646 F.3d 1240,

26 1241-42 (9th Cir. 2011) (internal citation omitted). Under both 12(b)(1) and 12(b)(6), the court

27 “may take judicial notice of matters of public record.” Lee v. City of Los Angeles, 250 F.3d 668,

28 689 (9th Cir. 2001) (citation omitted); see Louisiana Mun. Police Emps.’ Ret. Sys. v. Wynn, 829

Defs’ Motion to Dismiss; Memo.

9

No. 3:17-cv-04642-WHO

Case 3:17-cv-04642-WHO Document 66 Filed 01/19/18 Page 18 of 36

1
F.3d 1048, 1063 (9th Cir. 2016).
2
Plaintiff’s request for a ruling that it complies with Section 1373 should be dismissed
3
under both Rule 12(b)(1) and 12(b)(6). The request for a ruling regarding Chapters 12H and 12I
4
of the San Francisco Administrative Code is constitutionally unripe – thus depriving the Court of
5
jurisdiction – because USDOJ has not yet determined administratively whether those ordinances
6
violate Section 1373. Moreover, to the extent plaintiff seeks a ruling that its actual conduct – as
7
opposed to its ordinances on their face – is consistent with Section 1373, plaintiff would lack
8
standing on such a claim because there is no live controversy regarding whether the City’s actual
9
conduct violates Section 1373. Further, assuming the Court were to address the merits of
10
plaintiff’s request for a ruling that its ordinances comply with Section 1373, the Court should
11
deny that request on its merits. Chapter 12I flatly bars San Francisco law enforcement officials
12
from “provid[ing] any individual’s personal information to a federal immigration officer,” S.F.,
13
CAL., ADMIN. CODE ch. 12I, § 12I.3(e), and Chapter 12H prohibits employees from using City
14
“resources,” such as telephones, to communicate with federal authorities and from providing
15
“information regarding release status” to such authorities. Id., ch. 12H, § 12H.2.
16
Finally, plaintiff’s allegations that the access, notice, and Section 1373 conditions in the
17
Byrne JAG Program violate the constitutional Separation of Powers and the Spending Clause
18
should be dismissed on their merits under Rule 12(b)(6). Imposition of these conditions is fully
19
consistent with the Attorney General’s authority under the governing statutes. Also, the language
20
of the conditions allows San Francisco to “knowingly” exercise its choice to accept federal funds;
21
enforcing federal immigration law is closely related to promoting law enforcement in general; and
22
the challenged conditions do not violate any other constitutional prohibition. See S. Dakota v.
23 Dole, 483 U.S. 203, 207 (1987).4 24

25

26

4 Even if this Court were to conclude that plaintiff had established a right to judgment, any

injunction should be limited to San Francisco rather than applying to all Byrne JAG Program
27 grantees. See Price v. City of Stockton, 390 F.3d 1105, 1117 (9th Cir. 2004) (internal quotation

28

marks omitted); see also Skydive Arizona, Inc. v. Quattrocchi, 673 F.3d 1105, 1116 (9th Cir. 2012).

Defs’ Motion to Dismiss; Memo.

10

No. 3:17-cv-04642-WHO

Case 3:17-cv-04642-WHO Document 66 Filed 01/19/18 Page 19 of 36

1 I. San Francisco Is Not Entitled to a Declaratory Judgment

2

Regarding Compliance with Section 1373

Count One of plaintiff’s First Amended Complaint alleges that the City’s “laws,”
3

particularly Chapters 12H and 12I of the Administrative Code, comply with 8 U.S.C. § 1373
4

(Dkt. No. 61 ¶¶ 166-176). The Complaint also alleges, more broadly, that “San Francisco
5

complies with Section 1373” (id. ¶ 167). Under this claim, plaintiff seeks declarations that
6

“Chapters 12H and 12I of the San Francisco Administrative Code comply with Section 1373,”
7

and that the City “does not have in place a prohibition or restriction” that “deals with sending to,
8

receiving from, or requesting immigration status information with the federal government, or
9

10 maintaining such information” (id. at 41). This claim should be dismissed for lack of jurisdiction

or, alternatively, for failure on the merits.
11

12

A. Plaintiff’s Request for a Ruling Regarding Compliance

with Section 1373 Is Non-Justiciable

13

Under Article III of the Constitution, the jurisdiction of the federal courts extends only to

14 “Cases” and “Controversies.” U.S. Const. art. III, § 2, cl. 1. Matters outside this rubric are “non-

15 justiciable.” Or. Bureau of Labor & Indus. ex rel. Richardson v. U.S. W. Commc’ns, Inc., 288 F.3d 16 414, 416 (9th Cir. 2002). Two principles of justiciability are involved here: standing and ripeness.

17 “While standing is concerned with who is a proper party to litigate a particular matter, the doctrines 18 of mootness and ripeness determine when that litigation may occur.” Haw. Cty. Green Party v. 19 Clinton, 14 F. Supp. 2d 1198, 1201 (D. Haw. 1998). Where a plaintiff lacks standing or its claims 20 are unripe, the court lacks jurisdiction, and where jurisdiction is lacking, the plaintiff necessarily

21 cannot show a likelihood of success for purposes of a preliminary injunction. See Pollara v. 22 Radiant Logistics Inc., 2012 WL 12887095, at *5 (C.D. Cal. Sept. 13, 2012) (noting that “standing 23 to bring a claim . . . is a necessary predicate to demonstrate a likelihood of success on the merits”).

24

To satisfy the “irreducible constitutional minimum” of standing, a plaintiff must demon-

25 strate an “injury in fact,” a “fairly traceable” causal connection between the injury and defendant’s

26 conduct, and redressability. Steel Co. v. Citizens for a Better Env’t, 523 U.S. 83, 102-03 (1998). 27 The injury needed for constitutional standing must be “concrete,” “objective,” and “palpable,” not

28

Defs’ Motion to Dismiss; Memo.

11

No. 3:17-cv-04642-WHO

Case 3:17-cv-04642-WHO Document 66 Filed 01/19/18 Page 20 of 36

1 merely “abstract” or “subjective.” See Whitmore v. Arkansas, 495 U.S. 149, 155 (1990); Bigelow v.

2 Virginia, 421 U.S. 809, 816-17 (1975). Additionally, the injury must be “certainly impending”

3 rather than “speculative.” Whitmore, 495 U.S. at 157, 158. In short, for the plaintiff to have stand-

4 ing, “an actual, live controversy must exist between parties with adverse legal interests.” Pollution

5 Denim & Co. v. Pollution Clothing Co., 2009 WL 10672270, at *8 (C.D. Cal. Feb. 9, 2009).

6

Constitutional justiciability also requires that a dispute be ripe for judicial consideration. In

7 a challenge to governmental action, that means the challenged action must have been “formalized

8 and its effects felt in a concrete way by the challenging parties.” Abbott Labs. v. Gardner, 387 U.S.

9 136, 148-49 (1967). In other words, “[a] claim is not ripe for adjudication if it rests upon contin-

10 gent future events that may not occur as anticipated, or indeed may not occur at all.” Texas v.

11 United States, 523 U.S. 296, 300 (1998) (internal quotation marks omitted). Like the rules of

12 standing described above, these considerations are part of whether the case presents a concrete

13 controversy under Article III. See Wash. Legal Found. v. Legal Found. of Wash., 271 F.3d 835,

14 850 (9th Cir. 2001) (“The ripeness doctrine is derived from Article III’s case or controversy

15 requirement. It prevents the courts from entangling themselves in abstract disagreements over

16 administrative policies, and also protects the agencies from judicial interference until an

17 administrative decision has been formalized and its effects felt in a concrete way by challenging

18 parties.”) (internal quotation marks omitted), aff’d sub nom. Brown v. Legal Found. of Wash., 538

19 U.S. 216 (2003).5

20

1. Plaintiff’s Request for a Ruling Regarding Chapters

21

12H and 12I Is Constitutionally Unripe

22

Plaintiff’s request for a ruling on whether defendants can withhold grant funds based on

23 Chapter 12H or Chapter 12I is non-justiciable for lack of ripeness. As noted already, OJP has

24 written to San Francisco stating that these ordinances “may” violate Section 1373 and asking the

25 City to explain its compliance with federal law (Dkt. No. 61, Ex A). OJP’s letter stated explicitly

26 that USDOJ had “not made a final determination regarding San Francisco's compliance with section

27

5 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.

12

No. 3:17-cv-04642-WHO

Case 3:17-cv-04642-WHO Document 66 Filed 01/19/18 Page 21 of 36

1 1373” (id.). San Francisco responded to that letter on December 7, 2017 (id., Ex. C), but OJP has

2 not issued a final decision.

3

Thus, it would be premature to address plaintiff’s request for a ruling that these ordinances

4 comply with Section 1373. See City of Chicago v. Sessions, 2017 WL 5499167, at *4 (N.D. Ill.

5 Nov. 16, 2017) (holding that it would be premature to address “an as-applied challenge to Section

6 1373” based on similar OJP letter to Chicago). Even after OJP determines whether Chapter 12H

7 or 12I violates Section 1373, San Francisco will have an opportunity to appeal that initial deter-

8 mination administratively. See 34 U.S.C. § 10154; see generally 28 C.F.R. Part 18. OJP could

9 decide, either upon consideration of the City’s letter of December 7, 2017, or upon consideration of

10 any administrative appeal, that the ordinances do not violate Section 1373 and thus that USDOJ will

11 not withhold grant funds on that basis. Under these circumstances, plaintiff’s request for an order

12 regarding whether Chapters 12H and 12I would violate the Section 1373 compliance condition is

13 unripe, in that it “rests upon contingent future events that may not occur as anticipated, or indeed

14 may not occur at all.” Texas, 523 U.S. at 300 (citation omitted).6

15

2. Plaintiff Lacks Standing to Seek a Ruling Regarding

16

Its Actual Conduct

17

Moreover, to the extent plaintiff seeks a declaratory ruling on whether its actual conduct

18 violates Section 1373, the claim should be dismissed for lack of standing. Plaintiff’s Count One is

19 focused on San Francisco’s laws, referring several times to Chapters 12H and 12I of the Adminis-

20 trative Code and alleging that “[t]he [City] departments administering Byrne JAG-funded programs

21 are subject to and bound by these laws” (Dkt. No. 61 ¶¶ 169-171). But aside from the effect of

22 those ordinances, plaintiff also alleges that it “complies with Section 1373” in practice, and it seeks

23 a declaration to that effect (id. at 37, 41). Thus, plaintiff appears to seek a ruling that its actual

24

25

6 Defendants’ alternative argument below that the Court should dismiss plaintiff’s request

for a declaratory judgment regarding Chapters 12H and 12I on its merits does not make this claim

26 ripe, given that OJP must still be permitted to consider the City’s arguments in the administrative

27

process. Cf. Ardalan v. McHugh, 2014 WL 3846062, at *12 n.10 (N.D. Cal. Aug. 4, 2014) (noting 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.

13

No. 3:17-cv-04642-WHO

Case 3:17-cv-04642-WHO Document 66 Filed 01/19/18 Page 22 of 36

1 conduct complies with Section 1373.

2

Plaintiff fails to allege “an actual, live controversy” on that subject, however. See Pollution

3 Denim & Co, 2009 WL 10672270, at *8. Although plaintiff alleges that the President and the

4 Attorney General have referred to San Francisco as a “sanctuary city” generally – a designation that

5 the City itself embraces – plaintiff can point to no specific assertion that the City’s conduct violates

6 Section 1373 (Dkt. No. 61 ¶¶ 42-50). In support of its allegation of “an actual controversy between

7 San Francisco and DOJ regarding San Francisco’s compliance with Section 1373” (id. ¶ 157),

8 plaintiff cites OJP’s letter of November 15, 2017 (id. ¶ 84), but that letter stated that Chapters 12H

9 and 12I may violate Section 1373, not that the City’s actual practices violated the statute. Plaintiff

10 also cites remarks by the Attorney General in which he criticized San Francisco’s sanctuary policies

11 and “urg[ed] all states and local jurisdictions to comply with all federal laws, including 8 U.S.C.

12 Section 1373,” but those remarks also did not say that the City was violating Section 1373 (id. ¶ 4

13 & n.1).7

14

Under these circumstances, plaintiff lacks standing to seek a court ruling on whether its

15 conduct violates Section 1373. Given that USDOJ has not addressed, at this point, whether San

16 Francisco’s actual conduct violates Section 1373 and thus renders the City ineligible for grant

17 funds, there is no “live controversy” on that subject and no foreseeable “injury in fact” arising out

18 of any finding by the defendants on that subject. See Pollution Denim & Co., 2009 WL 10672270,

19 at *8; Steel Co., 523 U.S. at 102-03. Any assumption that defendants might one day withhold

20 federal grant funds based on San Francisco’s actual conduct (as opposed to its ordinances) would be

21 “speculative,” and thus cannot be the basis for standing. See Whitmore, 495 U.S. at 157.

22

To be sure, this is not to say the defendants concede that San Francisco’s actual policies do

23 not violate Section 1373, but only that the City is not entitled to a declaratory ruling on that subject

24 under the present circumstances. Moreover, assuming plaintiff had standing to seek a ruling

25 regarding its actual conduct and that the claim were not otherwise subject to dismissal on its face,

26

27

7 See Attorney General Jeff Sessions Delivers Remarks on Sanctuary Jurisdictions (Mar.

28

27, 2017), available at https://www.justice.gov/ opa/ speech/ attorney-general-jeff-sessionsdelivers-remarks-sanctuary-jurisdictions (last visited Jan. 19, 2018).

Defs’ Motion to Dismiss; Memo.

14

No. 3:17-cv-04642-WHO

Case 3:17-cv-04642-WHO Document 66 Filed 01/19/18 Page 23 of 36

1 factual development would be needed to resolve such a claim. Several issues would be presented,

2 including plaintiff’s internal policies in implementing its ordinances and what the City tells its

3 employees regarding federal law.

4

B. Alternatively, the Court Should Deny Plaintiff’s Request for

5

a Ruling that Its Ordinances Comply with Section 1373

6

If this Court were to find that plaintiff’s request for a ruling regarding its ordinances is

7 ripe, the Court would have to conclude that San Francisco’s ordinances are in conflict with

8 Section 1373.8 As described earlier, Section 1373 provides, in part, that a “local government

9 entity or official may not prohibit, or in any way restrict, any government entity or official from

10 sending to, or receiving from, [federal immigration officials] information regarding the

11 citizenship or immigration status, lawful or unlawful, of any individual.” 8 U.S.C. § 1373(a).

12 Chapters 12I and 12H of San Francisco’s Administrative Code violate this prohibition.

13

1. Chapter 12I

14

Chapter 12I of the Administrative Code provides that San Francisco “[l]aw enforcement

15 officials shall not . . . provide any individual’s personal information to a federal immigration

16 officer, on the basis of an administrative warrant, prior deportation order, or other civil immi-

17 gration document based solely on alleged violations of the civil provisions of immigration laws.”

18 S.F., CAL., ADMIN. CODE ch. 12I, § 12I.3(e). Personal information, in turn, is defined broadly to

19 include “any confidential, identifying information . . . including, but not limited to . . . contact

20 information . . . .” Id. § 12I.2.

21

This specific, express prohibition against sharing aliens’ “contact information” and other

22 “identifying information” with federal immigration authorities is clearly inconsistent with Section

23 1373. Under this prohibition, local officers would be unable to confirm or reveal the identity of

24 individuals in custody. But a person’s identity and name are highly relevant to determining

25 immigration status and removability under immigration law: No such evaluation can be made if

26 the person’s identity is not disclosed. And the person’s address – one component of “contact

27

8 The United States is not seeking to invalidate San Francisco’s ordinances in this action,

28

nor is it seeking a declaration that the ordinances are invalid. Instead, the United States contends that the plaintiff is not entitled to a ruling that its ordinances comply with Section 1373.

Defs’ Motion to Dismiss; Memo.

15

No. 3:17-cv-04642-WHO

Case 3:17-cv-04642-WHO Document 66 Filed 01/19/18 Page 24 of 36

1 information” – directly relates to whether the person is “lawfully present in the United States,”

2 which Congress described as a component of “immigration status.” 8 U.S.C. § 1357(g)(10)(A)

3 (emphasis added); see Black’s Law Dictionary 1065 (5th ed. 1979) (defining “presence” as

4 “being in a certain place and not elsewhere”). Identity and other personal information are also

5 relevant to many immigration status issues, such as whether the person was born outside the

6 United States, whether the person derived citizenship from a relative, whether the person qualifies

7 for immigrant status under 8 U.S.C. § 1101(a)(15), and whether the alien’s place of residence

8 qualifies them as a non-resident visitor, 8 U.S.C. § 1227(a)(1)(C); such information also facili-

9 tates taking an alien into custody for lawful removal proceedings, id. § 1226(a). Further, this

10 information is needed for federal authorities to comply with the statutory mandates to “take into

11 custody any alien who” has committed certain criminal offenses “when the alien is released”

12 from criminal custody, id. § 1226(c)(1) (emphasis added), and to “maintain a current record of

13 aliens who have been convicted of an aggravated felony,” id. § 1226(d)(1)(C).

14

Consistent with these requirements, Section 1373 forbids a state or local government from

15 prohibiting the exchange of “information regarding” an individual’s immigration status, not

16 merely the individual’s immigration status. Congress’s use of “information regarding” broadens

17 the scope of the information covered, as demonstrated by comparing Section 1373(a) to Section

18 1373(c), which uses the different phrase “[immigration] status information.” 8 U.S.C. § 1373(c);

19 see Dean v. United States, 556 U.S. 568, 573 (2009) (“Where Congress includes particular

20 language in one section of a statute but omits it in another section of the same Act, it is generally

21 presumed that Congress acts intentionally and purposely in the disparate inclusion or exclusion.”)

22 (citations omitted). And the meaning of the word “regarding” is quite broad. See Morales v.

23 Trans World Airlines, Inc., 504 U.S. 374, 383 (1992) (concluding that “ordinary meaning” of the

24 closely analogous “relating to” is “a broad one – ‘to stand in some relation; to have bearing or

25 concern; to pertain; refer; to bring into association with or connection with’”) (citing Black’s Law

26 Dictionary 1158 (5th ed. 1979)); Davis v. Fenton, 26 F. Supp. 3d 727, 740 (N.D. Ill. 2014)

27 (concluding that “regarding” is “just as broad . . . as ‘arising out of’ and ‘relating to’”).

28

The breadth of Section 1373 is also reinforced by other language that Congress used, such

Defs’ Motion to Dismiss; Memo.

16

No. 3:17-cv-04642-WHO

Case 3:17-cv-04642-WHO Document 66 Filed 01/19/18 Page 25 of 36

1 as making clear that no local policy could “in any way restrict” the sharing of such information,

2 reinforcing Congress’s overarching interest in halting policies that might stymie the sharing of

3 information between local law enforcement and immigration authorities. See Bologna v. San

4 Francisco, 121 Cal. Rptr. 3d 406, 414 (Cal. App. 2011) (noting that Section 1373 “is designed to

5 prevent any State or local law . . . that prohibits or in any way restricts any communication

6 between State and local officials and the INS”) (quoting H.R. Rep. No. 104-469 at 1 (1996))

7 (emphasis added). Thus, Section 1373 necessarily encompasses “identifying information,”

8 including “contact information.” A contrary reading would render the statute largely

9 meaningless, as DHS is already aware of an individual’s legal right to be present in the United

10 States. See Steinle v. San Francisco, 230 F. Supp. 3d 994, 1016 (N.D. Cal. 2017) (explaining that

11 “ICE was already aware of Lopez-Sanchez’s immigration status”).

12

Finally, the impact of Chapter 12I on the enforcement of federal immigration law is even

13 greater in light of the ordinance’s requirement to report any sharing of information twice a year,

14 including “a description of any communications” made to federal immigration authorities. Id.

15 § 12I.5(b). That requirement compounds the impact of the restriction on communication by

16 further discouraging local officers from sharing immigration-status information with federal

17 authorities. Because “personal information”’ is defined so broadly, a San Francisco officer would

18 risk disciplinary action any time he or she shared information regarding immigration status,

19 rendering the ordinance in square violation of Section 1373. See Chicago I, 264 F.Supp.3d at 948

20 (“[T]he Court finds that Congress acts constitutionally when it determines that localities may not

21 prevent local officers from voluntarily cooperating with a federal program or discipline them for

22 doing so.”).

23

2. Chapter 12H

24

Chapter 12H of the Administrative Code prohibits San Francisco employees from using

25 “any City . . . resources to assist in the enforcement of Federal immigration law” and from

26 “gather[ing] or disseminat[ing] information regarding release status of individuals or any other

27 such personal information.” See S.F., CAL., ADMIN. CODE ch. 12H, § 12H.2. “[S]ending . . .

28 information regarding . . . citizenship or immigration status” to federal immigration authorities

Defs’ Motion to Dismiss; Memo.

17

No. 3:17-cv-04642-WHO

Case 3:17-cv-04642-WHO Document 66 Filed 01/19/18 Page 26 of 36

1 under Section 1373 necessarily constitutes “assist[ing] in the enforcement of Federal immigration

2 law,” which is prohibited by Chapter 12H. Indeed, the California Court of Appeal has observed

3 that a state statute that requires arresting officers to inform federal immigration officials when a

4 person arrested for certain criminal violations “may not be” a citizen “was specifically designed

5 to provide state assistance in the enforcement of federal immigration laws.” Fonseca v. Fong,

6 167 Cal. App. 4th 922, 932 (2008) (emphasis added); see CAL. HEALTH & SAFETY § 11369.

7

Additionally, forbidding the use of City “resources” – such as telephones and Internet

8 access – to communicate with federal immigration authorities violates Section 1373’s proscrip-

9 tion against “restrict[ing]” the transmission of immigration-status information “in any way.” 8

10 U.S.C. § 1373(a). One definition of the verb “restrict” is “to place under restrictions as to use or

11 distribution,” and “restriction” is defined as “a limitation on the use or enjoyment of property or a

12 facility.” See Restrict Definition, Merriam-Webster.com, https://www.merriam-webster.com/

13 dictionary/ restrict (last visited Jan. 19, 2018); Restriction Definition, https://www.merriam-

14 webster.com/ dictionary/ restriction (last visited Jan. 19, 2018). Thus, limiting the means by

15 which an employee can transmit information to federal immigration authorities “restrict[s]” such

16 transmission. Moreover, prohibiting the use of telephones would not only prevent an employee

17 from using her office telephone to call federal authorities to report on an individual’s immigration

18 status, but would, presumably, also require the employee to hang up if a federal official called to

19 ask about an individual’s status. That is obviously a restriction on the transmission of

20 information.

21

Furthermore, Chapter 12H’s prohibition against sharing “information regarding release

22 status of individuals” with federal authorities violates Section 1373 because an alien’s release date

23 is information regarding the person’s immigration status. Under the process enacted in the INA, an

24 alien’s release date is directly relevant to when the alien can ultimately be removed from the

25 country. Federal law recognizes the importance of allowing States and localities to impose criminal

26 punishment on individuals who are in this country illegally and commit crimes. Thus, the INA

27 specifies that, except in limited circumstances, DHS “may not remove an alien who is sentenced to

28 imprisonment until the alien is released from imprisonment.” 8 U.S.C. § 1231(a)(4). But that law –

Defs’ Motion to Dismiss; Memo.

18

No. 3:17-cv-04642-WHO

Case 3:17-cv-04642-WHO Document 66 Filed 01/19/18 Page 27 of 36

1 and the comity interests that underlie it – render the time of an alien’s release from local custody

2 critical information regarding the alien’s immigration status, as the alien is subject to removal only

3 at the end of that custody period. See id. § 1231(a)(1)(B)(iii) (removal period “begins on . . . the

4 date the alien is released from [state or local criminal] detention”). Similarly, as noted above, the

5 statute requiring the detention of criminal aliens specifies that immigration detention for removal

6 proceedings must begin “when the alien is released” from criminal custody. Id. § 1226(c)(1)

7 (emphasis added). The Ninth Circuit has held that this statute requires immigration custody to

8 begin immediately upon release from criminal custody, underscoring the importance of the release

9 date to the person’s status under the immigration laws. See Preap v. Johnson, 831 F.3d 1193, 1202

10 (9th Cir. 2016) (stating that Section 1226(c) “governs the full life cycle of the criminal aliens’

11 detention,” including “the requirements for taking them into custody”), petition. for cert. filed, No.

12 16-1363 (May 11, 2017). Other INA provisions also confirm that an alien’s release date is highly

13 relevant to the person’s status under the immigration laws given the relevance of that persons’

14 location within the United States. See 8 U.S.C. § 1357(g)(10)(A) (“immigration status” includes

15 whether individual is “lawfully present in the United States”); id. § 1357(a)(1) (immigration

16 officers “shall have power without warrant . . . to interrogate any alien or person believed to be an

17 alien as to his right to be or to remain in the United States”); id. § 1226(a) (“alien may be arrested

18 and detained” on a warrant). Thus, release date information relates to an individual’s status under

19 the immigration laws because it is a core aspect of the enforcement process Congress designed.

20

Although Chapter 12H includes a saving clause providing that the prohibition does not

21 apply where “such assistance is required by Federal or State statute, regulation, or court

22 decision,” that clause does not permit the Court to determine at the dismissal stage that the

23 ordinance is consistent with Section 1373. First, the clause is ambiguous. The categories listed in

24 Chapter 12H include their own exceptions, but do not reiterate the saving clause, thus making it

25 unclear whether those subparts are subject to the saving clause.9 Making matters even more

26

27

9 See S.F., CAL., ADMIN. CODE ch. 12H, § 12H.2 (“the prohibition . . . shall include, but shall

28

not be limited to” the listed subparts); id. § 12.H.2(a) (prohibition includes “[a]ssisting or cooperating . . . with any investigation . . . except as permitted under [another code section]”); id.

Defs’ Motion to Dismiss; Memo.

19

No. 3:17-cv-04642-WHO

Case 3:17-cv-04642-WHO Document 66 Filed 01/19/18 Page 28 of 36

1 confusing, one listed category does reiterate the saving clause, suggesting that the other subparts

2 intentionally do not include it. See id. § 2.H.2(d) (prohibiting the collection of information except

3 as “required by Federal . . . statute, regulation, or court decision”). See Copeland v. Ryan, 852

4 F.3d 900, 907 (9th Cir. 2017) (“Under the maxim of expressio unius est exclusio alterius, there is

5 a presumption that when a statute designates certain persons, things, or manners of operation, all

6 omissions should be understood as exclusions.”) (internal quotation marks omitted).

7

Second, the saving clause is entirely overshadowed by the rest of Chapter 12H. The first

8 section of the Chapter categorically “affirm[s] that the City and County of San Francisco is a City

9 and County of Refuge.” S.F., CAL., ADMIN. CODE ch. 12H, § 12H.1. The ordinance prohibits

10 using City funds or resources to “assist in the enforcement of Federal immigration law,” and

11 provides that the prohibition “shall include, but shall not be limited to” four expressly described

12 categories of conduct, including “[a]ssisting or cooperating, in one’s official capacity, with any

13 investigation” conducted by federal immigration authorities. Id. § 12H.2. The ordinance also

14 expressly requires “inform[ing] all employees . . . of the prohibitions in [the] ordinance, the duty

15 of all . . . employees to comply with the prohibitions . . . and [the fact] that employees who fail to

16 comply with the prohibitions . . . shall be subject to appropriate disciplinary action.” Id. § 12H.3.

17 Chapter 12H does not, however, require informing employees that they may violate these

18 stringent “prohibitions” if “required” by federal law. Thus, if the City’s intent were to comply

19 with Section 1373, it would be odd for it to have enacted these many provisions that violate it.10

20 II. The Challenged Immigration-Related Byrne JAG Conditions Are Lawful

21

A. The Conditions Are Authorized by the Statute and Do Not

22

Violate the Separation of Powers

23

In Count Two of its Amended Complaint, plaintiff alleges that the Section 1373, access,

24

25 § 12.H.2(c) (prohibition includes “disseminating information . . . regarding . . . any other such
personal information . . . except as permitted under [another code section]”).

26

10 Nor does the January 19, 2017, memorandum from the City’s Human Resources

Director to City employees keep Chapter 12H from violating Section 1373 (Dkt. No. 61, Ex. C).
27 The memorandum was a “Reminder about [Employees’] Sanctuary City Obligations,” and only

28

quoted Section 1373 without comment rather than actually advising employees that they are permitted to share information with federal officials.

Defs’ Motion to Dismiss; Memo.

20

No. 3:17-cv-04642-WHO

Case 3:17-cv-04642-WHO Document 66 Filed 01/19/18 Page 29 of 36

1 and notice conditions in the Byrne JAG Program violate the constitutional Separation of Powers

2 by “unilaterally imposing [those] Requirements without authorization from Congress” (Dkt. No.

3 61 ¶ 187). Article I of the Constitution confers on Congress the authority to “lay and collect

4 Taxes, Duties, Imposts and Excises, to pay the Debts and provide for the common Defence and

5 general Welfare of the United States.” U.S. Const. art. I, § 8, cl. 1. As this Court has said in

6 another case, Congress may, “[i]ncident to” its spending power, “attach conditions on the receipt

7 of federal funds,” Cty. of Santa Clara v. Trump, 250 F. Supp. 3d 497, 530 (N.D. Cal. 2017)

8 (quoting Dole, 483 U.S. at 206), and “Congress can delegate some discretion to the President to

9 decide how to spend appropriated funds” so long as “any delegation and discretion is cabined by

10 [relevant] constitutional boundaries.” 250 F. Supp. 3d at 531; see DKT Mem’l Fund Ltd. v. AID,

11 887 F.2d 275, 280-81 (D.C. Cir. 1989) (upholding conditions on spending imposed by President

12 where statute authorized President to set certain “terms and conditions as he may determine”).

13

The Attorney General has “final authority over all functions, including any grants” made

14 by OJP, which administers the Byrne JAG Program. 34 U.S.C. § 10110. Under the Attorney

15 General’s authority, an Assistant Attorney General heads OJP. See id. § 10101; 28 U.S.C.

16 § 530C(a)(4). In setting forth the duties and functions of the AAG, Congress stated that the AAG

17 is to “exercise such other powers and functions as may be vested in the Assistant Attorney

18 General pursuant to this chapter or by delegation of the Attorney General, including placing

19 special conditions on all grants, and determining priority purposes for formula grants.” 34 U.S.C.

20 § 10102(a)(6).

21

Thus, a plain reading of the statutory text indicates that the AAG’s power includes, at a

22 minimum, the power to “plac[e] special conditions on all grants” administered by OJP. Id. The

23 breadth of the AAG’s statutory power is reinforced by the authority to “determin[e] priority

24 purposes for formula grants.” Id. Confirming the statute’s plain text, a congressional committee

25 report accompanying the enactment of this language stated that the provision “allows the

26 Assistant Attorney General to place special conditions on all grants and to determine priority

27 purposes for formula grants.” H.R. Rep. No. 109-233, at 101 (2005).

28

Indeed, the particular statutory language at issue here – the authority for “placing special

Defs’ Motion to Dismiss; Memo.

21

No. 3:17-cv-04642-WHO

Case 3:17-cv-04642-WHO Document 66 Filed 01/19/18 Page 30 of 36

1 conditions on all grants, and determining priority purposes for formula grants” – was added as

2 part of the very same legislation that created the Byrne JAG Program. See DOJ Reauthorization

3 Act of 2005, Pub. L. No. 109-162, § 1152(b), 119 Stat. 2960 (2006) (adding language to

4 subsection (a)(6)); id. § 1111 (creating Byrne JAG Program). Prior to that 2006 enactment, the

5 provision stated only that the AAG for OJP “exercise[s] such other powers and functions as may

6 be vested in the Assistant Attorney General pursuant to this title or by delegation of the Attorney

7 General.” Joint Resolution Making Continuing Appropriations for FY 1985, Pub. L. No. 98-473,

8 § 603, 98 Stat. 1837 (1984). Also, by contrast, the organic statute for the head of a separate

9 USDOJ grant-making component, enacted in 2002, continues to contain substantially the same,

10 more limited language as Section 10102 earlier contained, without the additional “special

11 conditions” and “priority purposes” powers that Congress elected to bestow with respect to OJP.

12 See 34 U.S.C. § 10444(7) (providing only that Director of Violence Against Women Office

13 “[e]xercis[es] such other powers and functions as may be vested in the Director pursuant to this

14 subchapter or by delegation of the Attorney General”). This context confirms that Congress

15 intended the “special conditions” and “priority purposes” language to confer distinctive and

16 meaningful power. “When Congress acts to amend a statute, [courts] presume it intends its

17 amendment to have real and substantial effect.” Stone v. INS, 514 U.S. 386, 397 (1995).

18

Thus, the challenged grant conditions – which merely promote intergovernmental law

19 enforcement cooperation, so that grantee policies do not impair federal policies – fit comfortably

20 within the delegated power of Section 10102(a)(6). Pursuant to this authority, the AAG may

21 prioritize formula grants, like the Byrne JAG Program, for jurisdictions that cooperate with

22 federal authorities in achieving federal law enforcement priorities, including removal of criminal

23 aliens under immigration law.

24

B. The Conditions Are Consistent with the Spending Clause

25

Finally, in Count Three of its First Amended Complaint, plaintiff alleges that the Section

26 1373, access, and notice conditions violate the Spending Clause by imposing grant conditions that

27 are purportedly ambiguous and “not germane” to the purposes of the Byrne JAG Program, and

28 would require grantees to “engage in unconstitutional activity” (Dkt. No. 61 ¶¶ 191-192). The

Defs’ Motion to Dismiss; Memo.

22

No. 3:17-cv-04642-WHO

Case 3:17-cv-04642-WHO Document 66 Filed 01/19/18 Page 31 of 36

1 Spending Clause provides that Congress may “lay and collect Taxes, Duties, Imposts and

2 Excises, to pay the Debts and provide for the common Defence and general Welfare of the United

3 States.” U.S. Const. art. I, § 8, cl. 1. As the Supreme Court has held, “Congress may attach

4 conditions on the receipt of federal funds, and has repeatedly employed the power to further

5 broad policy objectives by conditioning receipt of federal moneys upon compliance by the

6 recipient with federal statutory and administrative directives.” Dole, 483 U.S. at 206 (internal

7 quotation marks omitted).

8

The Supreme Court in South Dakota v. Dole described certain limitations or potential

9 limitations on the spending power. Most basically, conditions on the receipt of federal funds

10 must be stated “unambiguously” so that recipients can “exercise their choice knowingly,

11 cognizant of the consequences of their participation.” Id. (citing Pennhurst State Sch. & Hosp. v.

12 Halderman, 451 U.S. 1, 17 (1981) (“The legitimacy of Congress’ power to legislate under the

13 spending power thus rests on whether the State voluntarily and knowingly accepts the terms of

14 the ‘contract.’ There can, of course, be no knowing acceptance if a State is unaware of the

15 conditions or is unable to ascertain what is expected of it.”) (citations omitted)). Additionally, the

16 Court observed in Dole, “our cases have suggested (without significant elaboration) that condi-

17 tions on federal grants might be illegitimate if they are unrelated to the federal interest in parti-

18 cular national projects or programs.” 483 U.S. at 207-08 (internal quotation marks omitted). And

19 finally, the Court said that “other constitutional provisions may provide an independent bar to the

20 conditional grant of federal funds.” Id. at 207-08. The challenged grant conditions are consistent

21 with all of these principles.

22

1. The Challenged Conditions are Unambiguous

23

First, these conditions clearly state what conduct is required, so that grantees can “exercise

24 their choice knowingly, cognizant of the consequences of their participation.” Id. at 207 (citation

25 omitted). The access and notice conditions require grantees (1) to give “agents of the United

26 States acting under color of federal law” access to correctional facilities “to meet with individuals

27 who are (or are believed by such agents to be) aliens and to inquire as to such individuals’ right to

28 be or remain in the United States,” and (2) to notify DHS, upon “formal written request” and “as

Defs’ Motion to Dismiss; Memo.

23

No. 3:17-cv-04642-WHO

Case 3:17-cv-04642-WHO Document 66 Filed 01/19/18 Page 32 of 36

1 early as practicable,” before “the scheduled release date and time for a particular alien in such

2 facility.” RJN, Ex. E (Greenville SC Award 2017) ¶¶ 53, 55, 56; RJN, Ex. F (Binghamton NY

3 Award 2017) ¶¶ 53, 55, 56. The award documents also specify that nothing in these conditions

4 requires a grantee to detain “any individual in custody beyond the date and time the individual

5 would have been released in the absence of this condition”; that the conditions impose no require-

6 ments regarding any requests by federal immigration authorities to detain aliens; and that the

7 notice condition requires “only as much advance notice as practicable.” Id. Moreover, to the

8 extent any uncertainty might remain, the FY 2017 Byrne JAG solicitation invited any prospective

9 grantee with a question about “any . . . requirement of this solicitation” to contact OJP’s Response

10 Center (customer service center) by telephone, email, or Internet chat (Dkt. No. 61, Ex. B at 2).

11 A prospective grantee could also contact the appropriate “State Policy Advisor” – that is, a

12 specific, named OJP employee assigned to work with jurisdictions within a specified geo-

13 graphical area. Id.; BJA Programs Office Contact Information, available at https://www.bja.gov/

14 About/ Contacts/ ProgramsOffice.html (last visited Jan. 19, 2018).11

15

Further, to the extent there is any uncertainty at the margins of the challenged conditions,

16 such a penumbra would not render them unconstitutionally ambiguous. Indeed, “the exact nature

17 of [grant] conditions may be largely indeterminate, provided that the existence of the conditions is

18 clear, such that States have notice that compliance with the conditions is required.” Charles v.

19 Verhagen, 348 F.3d 601, 607 (7th Cir. 2003) (citation omitted); see, e.g., Benning v. Georgia, 391

20 F.3d 1299, 1306 (11th Cir. 2004) (“Once Congress clearly signals its intent to attach federal

21 conditions to Spending Clause legislation, it need not specifically identify and proscribe in

22 advance every conceivable state action that would be improper.”) (citation omitted). Moreover,

23 plaintiff does not complain about the clarity of any other Byrne JAG conditions, such as those

24 requiring compliance with restrictions on lobbying, RJN, Ex. D ¶ 17; compliance with “federal

25 appropriations statutes” generally, id. ¶ 18; reporting of evidence of violations of the False Claims

26 Act, id. ¶ 19; and compliance with prohibitions on reprisal under 41 U.S.C. § 4712, id. ¶ 21.

27

28

11 “BJA” refers to the Bureau of Justice Assistance, the OJP component that administers the Byrne JAG Program.

Defs’ Motion to Dismiss; Memo.

24

No. 3:17-cv-04642-WHO

Case 3:17-cv-04642-WHO Document 66 Filed 01/19/18 Page 33 of 36

1

2

2. The Challenged Conditions Are Related to the Purposes of the Byrne JAG Program

3

Second, plaintiff alleges that the Byrne JAG conditions are “not germane to the stated

4 purposes of the Byrne JAG funds” (Dkt. No. 61 ¶ 191(b)). As the Court of Appeals has observed,

5 however, this aspect of Dole suggests only a “possible ground” for invalidating an enactment, and

6 does not impose an “exacting standard”:

7

The Supreme Court has suggested that federal grants conditioned on compliance

8

with federal directives might be illegitimate if the conditions share no relationship

to the federal interest in particular national projects or programs. This possible

9

ground for invalidating a Spending Clause statute, which only suggests that the

10

legislation might be illegitimate without demonstrating a nexus between the conditions and a specified national interest, is a far cry from imposing an exacting

11

standard for relatedness.

12 Mayweathers v. Newland, 314 F.3d 1062, 1067 (9th Cir. 2002) (citing Dole, 483 U.S. at 207).

13 Thus, conditions on federal funding must only “bear some relationship to the purpose of the

14 federal spending.” 314 F.3d at 1067 (quoting New York v. United States, 505 U.S. 144, 167

15 (1992)); see Barbour v. Wash. Metro. Area Transit Auth., 374 F.3d 1161, 1168 (D.C. Cir. 2004)

16 (noting that Supreme Court has never “overturned Spending Clause legislation on relatedness

17 grounds”).

18

The challenged conditions easily meet this standard. The Byrne JAG Program’s organic

19 statute specifies that grant funds are designed to provide resources “for criminal justice,” to

20 support programs including law enforcement, prosecution, crime prevention, and corrections. 34

21 U.S.C. § 10152(a)(1). These goals are also reflected in the responsibilities of the AAG, which

22 involve “disseminat[ing] information” and “maintain[ing] liaison with . . . State governments” in

23 matters relating to “criminal justice.” 34 U.S.C. § 10102(a)(1), (2) (emphasis added). As relates

24 to these statutes, the term “criminal justice” is defined broadly to include various activities of the

25 police, the courts, and “related agencies.” Id. § 10251(a)(1). Further, immigration enforcement,

26 which the conditions promote, undoubtedly intersects with the Byrne JAG Program’s criminal

27 justice purposes, at a minimum for the simple reason that a conviction for any of a wide array of

28 criminal offenses renders an alien removable from this country. See 8 U.S.C. § 1227(a)(2).

Defs’ Motion to Dismiss; Memo.

25

No. 3:17-cv-04642-WHO

Case 3:17-cv-04642-WHO Document 66 Filed 01/19/18 Page 34 of 36

1 Indeed, “[a] primary goal of several recent overhauls of the INA has been to ensure and expedite

2 the removal of aliens convicted of serious crimes.” Duvall v. Att’y Gen. of U.S., 436 F.3d 382,

3 391 (3d Cir. 2006); see Padilla v. Kentucky, 559 U.S. 356, 360 (2010) (observing that “deporta-

4 tion or removal is now virtually inevitable for a vast number of noncitizens convicted of crimes”)

5 (citation omitted). Once removed, a criminal alien who has committed a removable offense – for

6 example, an aggravated felony, domestic violence, child abuse, or certain firearm offenses – is no

7 longer present in this country with the potential to re-offend.

8

The INA also repeatedly contemplates cooperation among state and local officers and

9 federal officials on immigration enforcement. See, e.g., 8 U.S.C. § 1357(g) (authorizing formal

10 cooperative agreements under which trained and qualified state and local officers may perform

11 specified functions of a federal immigration officer in relation to the investigation, apprehension,

12 or detention of aliens); id. § 1324(c) (authorizing state and local officers to make arrests for

13 violations of the INA’s prohibition against smuggling, transporting, or harboring aliens); id.

14 § 1252c (authorizing state and local officers to arrest certain felons who have unlawfully returned

15 to the United States). Under authorities such as these, “state officers may perform the functions

16 of an immigration officer.” Arizona, 567 U.S. at 408. Furthermore, given that the INA contem-

17 plates the federal detention of certain aliens upon their release from state or local custody, as

18 discussed above, the conditions can be understood as seeking to ensure that a state or local

19 grantee’s law enforcement activities not impair the law enforcement activities of the federal

20 government. It is crucial to this cooperative law enforcement framework that states and localities

21 give federal agents access to detainees in their custody and avoid restricting the communication

22 of information regarding immigration status to DHS.12

23

24

12 Plaintiff argues that Congress’s elimination, during a reorganization of the Byrne JAG

25 statute, of a requirement to send information on the criminal conviction of aliens to federal
immigration authorities suggests an intent to divorce the Program from immigration enforcement

26 (Dkt. No. 61 ¶ 65). Absent any indication of such intent in the legislative history, however, the

more reasonable assumption is that Congress simply found the provision to be unnecessary.
27 Indeed, at the same time Congress eliminated that language, it added the AAG’s discretionary

28

authority to “plac[e] special conditions on all grants, and [to] determin[e] priority purposes for formula grants.” 34 U.S.C. § 10102(a)(6); see Violence Against Women and Department of

Defs’ Motion to Dismiss; Memo.

26

No. 3:17-cv-04642-WHO

Case 3:17-cv-04642-WHO Document 66 Filed 01/19/18 Page 35 of 36

1

2

3. The Challenged Conditions Do Not Violate any “Independent Constitutional Bar”

3

Third, plaintiff alleges that these conditions exceed the spending power by requiring the

4 City “to engage in unconstitutional activity such as detaining individuals without probable cause

5 in violation of the Fourth Amendment” (Dkt. No. 61 ¶ 192). The Supreme Court in Dole

6 emphasized the narrowness on this limitation on the federal spending power, noting that “the

7 ‘independent constitutional bar’ limitation . . . is not . . . a prohibition on the indirect achievement

8 of objectives which Congress is not empowered to achieve directly.” 483 U.S. at 210. Rather,

9 the Court said, this limitation “stands for the unexceptionable proposition that the power may not

10 be used to induce the States to engage in activities that would themselves be unconstitutional.

11 Thus, for example, a grant of federal funds conditioned on invidiously discriminatory state action

12 or the infliction of cruel and unusual punishment would be an illegitimate exercise of the

13 Congress’ broad spending power.” Id. at 210-11.

14

The challenged conditions do not “induce” San Francisco to violate any such

15 constitutional prohibition. As explained already, the access and notice conditions have no effect

16 on the detention of aliens. The FY 2017 award documents state categorically that nothing in the

17 conditions “shall be understood to authorize or require any recipient, any subrecipient at any tier,

18 any State or local government, or any other entity or individual to maintain (or detain) any

19 individual in custody beyond the date and time the individual would have been released in the

20 absence of this condition.” RJN, Ex. E ¶¶ 55, 56; Ex. F ¶¶ 55, 56. The conditions only require,

21 where a jurisdiction chooses to accept Byrne JAG funds, that the grantee give federal authorities

22 (1) access to correctional facilities to question aliens who are in the jurisdiction’s custody and

23 (2) “as much advance notice as practicable” before ending such custody. Thus, the challenged

24 conditions raise no issue under the Fourth Amendment or any other “independent constitutional

25 bar.” See Dole, 483 U.S. at 210.

26

In short, the challenged conditions in the Byrne JAG Program constitute only a “relatively

27

28

Justice Reauthorization Act of 2005, Pub. L. No. 109-162, 119 Stat. 2960 (2006), § 1152(b) (adding language to subsection (a)(6)); id. § 1111(a)(2)(C) (amending 42 U.S.C. § 3753).

Defs’ Motion to Dismiss; Memo.

27

No. 3:17-cv-04642-WHO

Case 3:17-cv-04642-WHO Document 66 Filed 01/19/18 Page 36 of 36

1 mild encouragement” to assist in the enforcement of immigration law. Dole, 483 U.S. at 211.

2

CONCLUSION

3

Accordingly, the Court should dismiss plaintiff’s First Amended Complaint and all of its

4 claims.

5 Dated: January 19, 2018

6
Respectfully submitted,
7

8

CHAD A. READLER Acting Assistant Attorney General

9

JOHN R. TYLER

10

Assistant Director

11

/s/ W. Scott Simpson

12

W. SCOTT SIMPSON (Va. Bar #27487)

13

Senior Trial Counsel

14

Attorneys, Department of Justice

Civil Division, Room 7210

15

Federal Programs Branch

16

20 Massachusetts Avenue, NW Washington, D.C. 20530

17

Telephone: (202) 514-3495

Facsimile: (202) 616-8470

18

E-mail: scott.simpson@usdoj.gov

19

COUNSEL FOR DEFENDANTS

20

JEFFERSON B. SESSIONS III, Attorney

21

General of the United States; ALAN R.

HANSON, Principal Deputy Assistant Attorney

22

General; and U.S. DEPARTMENT OF

23

JUSTICE

24

25

26

27

28

Defs’ Motion to Dismiss; Memo.

28

No. 3:17-cv-04642-WHO

Case 3:17-cv-04642-WHO Document 66-1 Filed 01/19/18 Page 1 of 82

1 CHAD A. READLER

Acting Assistant Attorney General
2 BRIAN STRETCH

3 United States Attorney
JOHN R. TYLER

4 Assistant Director

W. SCOTT SIMPSON (Va. Bar #27487)
5 Senior Trial Counsel

6

Department of Justice, Room 7210 Civil Division, Federal Programs Branch

7 20 Massachusetts Avenue, NW
Washington, D.C. 20530

8 Telephone: (202) 514-3495

Facsimile: (202) 616-8470

9 E-mail:

scott.simpson@usdoj.gov

10

COUNSEL FOR DEFENDANTS (See signature page for parties represented.)

11
IN THE UNITED STATES DISTRICT COURT
12
FOR THE NORTHERN DISTRICT OF CALIFORNIA
13
SAN FRANCISCO DIVISION
14

15 CITY AND COUNTY OF SAN
FRANCISCO,

16

Plaintiff,

17

v.

18 JEFFERSON B. SESSIONS III, Attorney 19 General of the United States, et al.,

20

Defendants.

No. 3:17-cv-04642-WHO
REQUEST FOR JUDICIAL NOTICE IN SUPPORT OF DEFENDANTS’ MOTION TO DISMISS

Date: Time:

February 28, 2018 2:00 p.m.

21

22
Defendants respectfully request, pursuant to Federal Rule of Evidence 201, that the Court
23
take judicial notice of the following documents:
24
1. Attached hereto as Exhibit A is a true and correct copy of Chapter 12H of the San
25
Francisco Administrative Code, as posted at http://www.amlegal.com/library/ca/sfrancisco.shtml.
26
A page of the official San Francisco web site, http://sfgov.org/services/sf-municipal-codes, links
27
to http://www.amlegal.com/library/ca/sfrancisco.shtml.
28

Defs’ Request for Judicial Notice No. 3:17-cv-04642-WHO

Case 3:17-cv-04642-WHO Document 66-1 Filed 01/19/18 Page 2 of 82

1

2. Attached hereto as Exhibit B is a true and correct copy of Chapter 12I of the San

2 Francisco Administrative Code, as posted at http://www.amlegal.com/library/ca/sfrancisco.shtml.

3 A page of the official San Francisco web site, http://sfgov.org/services/sf-municipal-codes, links

4 to http://www.amlegal.com/library/ca/sfrancisco.shtml.

5

3. Attached hereto as Exhibit C is a true and correct copy of a U.S. Department of Justice

6 press release issued July 25, 2017, entitled Attorney General Sessions Announces Immigration

7 Compliance Requirements for Edward Byrne Memorial Justice Assistance Grant Programs. As

8 of January 19, 2018, this document is posted on the U.S. Department of Justice’s web site, at

9 https://www.justice.gov/opa/pr/attorney-general-sessions-announces-immigration-compliance-

10 requirements-edward-byrne-memorial.

11

4. Attached hereto as Exhibit D is a true and correct copy of the Byrne JAG award

12 package issued by the Office of the Justice Programs of the U.S. Department of Justice to the City

13 and County of San Francisco for Fiscal Year 2016.

14

5. Attached hereto as Exhibit E is a true and correct copy of the Byrne JAG award

15 package issued by the Office of the Justice Programs of the U.S. Department of Justice to the

16 County of Greenville, South Carolina, for FY 2017.

17

6. Attached hereto as Exhibit F is a true and correct copy of the Byrne JAG award

18 package issued by the Office of the Justice Programs of the U.S. Department of Justice to the City

19 of Binghamton, New York, for FY 2017.

20

Each of these exhibits is a matter of public record and is therefore subject to judicial

21 notice. See Fed. R. Evid. 201(b); Lee v. City of Los Angeles, 250 F.3d 668, 689 (9th Cir. 2001)

22 (court may take judicial notice of matters of public record unless the matter is a fact subject to

23 reasonable dispute).

24

Exhibits A through F are judicially noticeable because official government records are

25 matters of public record appropriate for judicial notice. See Brown v. Valoff, 422 F.3d 926, 933

26 n.9 (9th Cir. 2005) (taking judicial notice of government administrative bulletin); Mack v. S. Bay

27 Beer Distribs., Inc., 798 F.2d 1279, 1282 (9th Cir. 1986) (court may take judicial notice of state

28

2

Defs’ Request for Judicial Notice

No. 3:17-cv-4642-WHO

Case 3:17-cv-04642-WHO Document 66-1 Filed 01/19/18 Page 3 of 82

1 administrative records), overruled on other grounds, Astoria Fed. Sav. & Loan Ass’n v. Solimino,

2 501 U.S. 104 (1991); Interstate Nat. Gas. Co. v. S. Cal. Gas. Co., 209 F.2d 380, 385 (9th Cir.

3 1953) (court “may take judicial notice of records and reports of administrative bodies”);

4 California Sportfishing Prot. All. v. Chico Scrap Metal, Inc., 124 F. Supp. 3d 1007, 1016 (E.D.

5 Cal. 2015) (“Government records are susceptible to judicial notice when ‘relevant to an[] issue’

6 before the court.”) (quoting Flick v. Liberty Mut. Fire Ins. Co., 205 F.3d 386, 392 n. 7 (9th Cir.

7 2000)).

8

Exhibits A through F are also judicially noticeable because the statements of government

9 officials that they contain are not subject to reasonable dispute, as the statements “can be accur-

10 ately and readily determined from sources whose accuracy cannot reasonably be questioned.”

11 Fed. R. Evid. 201(b)(2).

12

Exhibits A and B are also judicially noticeable because “[m]unicipal ordinances are

13 proper subjects for judicial notice.” Tollis, Inc. v. Cty. of San Diego, 505 F.3d 935, 938 n.1 (9th

14 Cir. 2007).

15

Exhibit C is also judicially noticeable because it is posted on an official government web

16 site. See Daniels-Hall v. Nat’l Educ. Ass’n, 629 F.3d 992, 998-99 (9th Cir. 2010) (taking judicial

17 notice of information contained on a government web sites); Paralyzed Veterans of America v.

18 McPherson, No. C 06-4670 SBA, 2008 WL 4183981, at *5 (N.D. Cal. Sept. 9, 2008) (noting that

19 “information on government agency websites [has] often been treated as proper subjects for

20 judicial notice”). Thus, the statements of government agencies contained within this exhibit are

21 not subject to reasonable dispute, as the statements “can be accurately and readily determined

22 from sources whose accuracy cannot reasonably be questioned.” Fed. R. Evid. 201(b)(2).

23 Dated: January 19, 2018 24 25 26 27

Respectfully submitted,
CHAD A. READLER Acting Assistant Attorney General

28

3

Defs’ Request for Judicial Notice

No. 3:17-cv-4642-WHO

Case 3:17-cv-04642-WHO Document 66-1 Filed 01/19/18 Page 4 of 82

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’ Request for Judicial Notice No. 3:17-cv-4642-WHO

BRIAN STRETCH United States Attorney JOHN R. TYLER Assistant Director /s/ W. Scott Simpson W. SCOTT SIMPSON (Va. Bar #27487) 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
4

Case 3:17-cv-04642-WHO Document 66-1 Filed 01/19/18 Page 5 of 82
Exhibit A

CHAPTER 12H: IMMIGRATION STATUS xx

Page 1 of 3

Case 3:17-cv-04642-WHO Document 66-1 Filed 01/19/18 Page 6 of 82

Print
San Francisco Administrative Code
CHAPTER 12H: IMMIGRATION STATUS

Sec. 12H.1. Sec. 12H.2.
Sec. 12H.3.
Sec. 12H.4. Sec. 12H.5. Sec. 12H.6.

City and County of Refuge. Use of City Funds Prohibited. Clerk of Board to Transmit Copies of this Chapter; Informing City Employees. Enforcement. City Undertaking Limited to Promotion of General Welfare. Severability.

SEC. 12H.1. CITY AND COUNTY OF REFUGE.
It is hereby affirmed that the City and County of San Francisco is a City and County of Refuge.
(Added by Ord. 375-89, App. 10/24/89)
SEC. 12H.2. USE OF CITY FUNDS PROHIBITED.
No department, agency, commission, officer, or employee of the City and County of San Francisco shall use 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 other such personal information as defined in Chapter 12I in the City and County of San Francisco unless such assistance is required by Federal or State statute, regulation, or court decision. The prohibition set forth in this Chapter 12H shall include, but shall not be limited to:
(a) Assisting or cooperating, in one's official capacity, with any investigation, detention, or arrest procedures, public or clandestine, conducted by the Federal agency charged with enforcement of the Federal immigration law and relating to alleged violations of the civil provisions of the Federal immigration law, except as permitted under Administrative Code Section 12I.3.
(b) Assisting or cooperating, in one's official capacity, with any investigation, surveillance, or gathering of information conducted by foreign governments, except for cooperation related to an alleged violation of City and County, State, or Federal criminal laws.
(c) Requesting information about, or disseminating information, in one's official capacity, regarding the release status of any individual or any other such personal information as defined in Chapter 12I, except as permitted under Administrative Code Section 12I.3, or conditioning the provision of services or benefits by the City and County of San Francisco upon immigration

http://library.amlegal.com/alpscripts/get-content.aspx

1/19/2018

CHAPTER 12H: IMMIGRATION STATUS xx

Page 2 of 3

Case 3:17-cv-04642-WHO Document 66-1 Filed 01/19/18 Page 7 of 82

status, except as required by Federal or State statute or regulation, City and County public assistance criteria, or court decision.
(d) Including on any application, questionnaire, or interview form used in relation to benefits, services, or opportunities provided by the City and County of San Francisco any question regarding immigration status other than those required by Federal or State statute, regulation, or court decision. Any such questions existing or being used by the City and County at the time this Chapter is adopted shall be deleted within sixty days of the adoption of this Chapter.
(Added by Ord. 375-89, App. 10/24/89; amended by Ord. 228-09, File No. 091032, App. 10-28-2009; Ord. 96-16 , File No. 160022, App. 6/17/2016, Eff. 7/17/2016)
SEC. 12H.2-1. [REPEALED.]
(Added by Ord. 282-92, App. 9/4/92; amended by Ord. 238-93, App. 8/4/93; Ord. 228-09, File No. 091032, App. 10-282009; repealed by Ord. 96-16 , File No. 160022, App. 6/17/2016, Eff. 7/17/2016)
SEC. 12H.3. CLERK OF BOARD TO TRANSMIT COPIES OF THIS CHAPTER; INFORMING CITY EMPLOYEES.
The Clerk of the Board of Supervisors shall send copies of this Chapter, including any future amendments thereto that may be made, to every department, agency and commission of the City and County of San Francisco, to California's United States Senators, and to the California Congressional delegation, the Commissioner of the Federal agency charged with enforcement of the Federal immigration law, the United States Attorney General, and the Secretary of State and the President of the United States. Each appointing officer of the City and County of San Francisco shall inform all employees under her or his jurisdiction of the prohibitions in this ordinance, the duty of all of her or his employees to comply with the prohibitions in this ordinance, and that employees who fail to comply with the prohibitions of the ordinance shall be subject to appropriate disciplinary action. Each City and County employee shall be given a written directive with instructions for implementing the provisions of this Chapter.
(Added by Ord. 375-89, App. 10/24/89; Ord. 228-09, File No. 091032, App. 10-28-2009)
SEC. 12H.4. ENFORCEMENT.
The Human Rights Commission shall review the compliance of the City and County departments, agencies, commissions and employees with the mandates of this ordinance in particular instances in which there is question of noncompliance or when a complaint alleging noncompliance has been lodged.
(Added by Ord. 375-89, App. 10/24/89)
SEC. 12H.5. CITY UNDERTAKING LIMITED TO PROMOTION OF GENERAL WELFARE.
In undertaking the adoption and enforcement of this Chapter, the City is assuming an undertaking only to promote the general welfare. This Chapter is not intended to create any new rights for breach of which the City is liable in money damages to any person who claims that

http://library.amlegal.com/alpscripts/get-content.aspx

1/19/2018

CHAPTER 12H: IMMIGRATION STATUS xx

Page 3 of 3

Case 3:17-cv-04642-WHO Document 66-1 Filed 01/19/18 Page 8 of 82

such breach proximately caused injury. This section shall not be construed to limit or proscribe any other existing rights or remedies possessed by such person.
(Added by Ord. 375-89, App. 10/24/89)
SEC. 12H.6. SEVERABILITY.
If any part of this ordinance, or the application thereof, is held to be invalid, the remainder of this ordinance shall not be affected thereby, and this ordinance shall otherwise continue in full force and effect. To this end, the provisions of this ordinance, and each of them, are severable.
(Added by Ord. 375-89, App. 10/24/89)

http://library.amlegal.com/alpscripts/get-content.aspx

1/19/2018

Case 3:17-cv-04642-WHO Document 66-1 Filed 01/19/18 Page 9 of 82
Exhibit B

CHAPTER 12I: CIVIL IMMIGRATION DETAINERS xx

Page 1 of 8

Case 3:17-cv-04642-WHO Document 66-1 Filed 01/19/18 Page 10 of 82

Print
San Francisco Administrative Code
CHAPTER 12I: CIVIL IMMIGRATION DETAINERS

Sec. 12I.1. Sec. 12I.2. Sec. 12I.3. Sec. 12I.4. Sec. 12I.5. Sec. 12I.6. Sec. 12I.7.

Findings. Definitions. Restrictions on Law Enforcement Officials. Purpose of this Chapter. Semiannual Report. Severability. Undertaking for the General Welfare.

SEC. 12I.1. FINDINGS.
The City and County of San Francisco (the "City") is home to persons of diverse racial, ethnic, and national backgrounds, including a large immigrant population. The City respects, upholds, and values equal protection and equal treatment for all of our residents, regardless of immigration status. Fostering a relationship of trust, respect, and open communication between City employees and City residents is essential to the City's core mission of ensuring public health, safety, and welfare, and serving the needs of everyone in the community, including immigrants. The purpose of this Chapter 12I, as well as of Administrative Code Chapter 12H, is to foster respect and trust between law enforcement and residents, to protect limited local resources, to encourage cooperation between residents and City officials, including especially law enforcement and public health officers and employees, and to ensure community security, and due process for all.
The United States Immigration and Customs Enforcement ("ICE") is responsible for enforcing the civil immigration laws. ICE's programs, including Secure Communities and its replacement, the Priority Enforcement Program ("PEP"), seek to enlist local law enforcement's voluntary cooperation and assistance in its enforcement efforts. In its description of PEP, ICE explains that all requests under PEP are for voluntary action and that any request is not an authorization to detain persons at the expense of the federal government. The federal government should not shift the financial burden of federal civil immigration enforcement, including personnel time and costs relating to notification and detention, onto local law enforcement by requesting that local law enforcement agencies continue detaining persons based on non-mandatory civil immigration detainers or cooperating and assisting with requests to notify ICE that a person will be released from local custody. It is not a wise and effective use of valuable City resources at a time when vital services are being cut.
ICE's Secure Communities program (also known as "S-Comm") shifted the burden of federal civil immigration enforcement onto local law enforcement. S-Comm came into operation after

http://library.amlegal.com/alpscripts/get-content.aspx

1/19/2018

CHAPTER 12I: CIVIL IMMIGRATION DETAINERS xx

Page 2 of 8

Case 3:17-cv-04642-WHO Document 66-1 Filed 01/19/18 Page 11 of 82

the state sent fingerprints that state and local law enforcement agencies had transmitted to the California Department of Justice ("Cal DOJ") to positively identify the arrestees and to check their criminal history. The FBI would forward the fingerprints to the Department of Homeland Security ("DHS") to be checked against immigration and other databases. To give itself time to take a detainee into immigration custody, ICE would send an Immigration Detainer – Notice of Action (DHS Form I-247) to the local law enforcement official requesting that the local law enforcement official hold the individual for up to 48 hours after that individual would otherwise be released ("civil immigration detainers"). Civil Immigration detainers may be issued without evidentiary support or probable cause by border patrol agents, aircraft pilots, special agents, deportation officers, immigration inspectors, and immigration adjudication officers.
Given that civil immigration detainers are issued by immigration officers without judicial oversight, and the regulation authorizing civil immigration detainers provides no minimum standard of proof for their issuance, there are serious questions as to their constitutionality. Unlike criminal warrants, which must be supported by probable cause and issued by a neutral magistrate, there are no such requirements for the issuance of a civil immigration detainer. Several federal courts have ruled that because civil immigration detainers and other ICE "Notice of Action" documents are issued without probable cause of criminal conduct, they do not meet the Fourth Amendment requirements for state or local law enforcement officials to arrest and hold an individual in custody. (Miranda-Olivares v. Clackamas Co., No. 3:12-cv-02317-ST *17 (D.Or. April 11, 2014) (finding that detention pursuant to an immigration detainer is a seizure that must comport with the Fourth Amendment). See alsoMorales v. Chadbourne, 996 F. Supp. 2d 19, 29 (D.R.I 2014); Villars v. Kubiatowski, No. 12-cv-4586 *10-12 (N.D. Ill. filed May 5, 2014).)
On December 4, 2012, the Attorney General of California, Kamala Harris, clarified the responsibilities of local law enforcement agencies under S-Comm. The Attorney General clarified that S-Comm did not require state or local law enforcement officials to determine an individual's immigration status or to enforce federal immigration laws. The Attorney General also clarified that civil immigration detainers are voluntary requests to local law enforcement agencies that do not mandate compliance. California local law enforcement agencies may determine on their own whether to comply with non-mandatory civil immigration detainers. In a June 25, 2014, bulletin, the Attorney General warned that a federal court outside of California had held a county liable for damages where it voluntarily complied with an ICE request to detain an individual, and the individual was otherwise eligible for release and that local law enforcement agencies may also be held liable for such conduct. Over 350 jurisdictions, including Washington, D.C., Cook County, Illinois, and many of California's 58 counties, have already acknowledged the discretionary nature of civil immigration detainers and are declining to hold people in their jails for the additional 48 hours as requested by ICE. Local law enforcement agencies' responsibilities, duties, and powers are regulated by state law. However, complying with non-mandatory civil immigration detainers frequently raises due process concerns.
According to Section 287.7 of Title 8 of the Code of Federal Regulations, the City is not reimbursed by the federal government for the costs associated with civil immigration detainers alone. The full cost of responding to a civil immigration detainer can include, but is not limited to, extended detention time, the administrative costs of tracking and responding to detainers, and the legal liability for erroneously holding an individual who is not subject to a civil immigration detainer. Compliance with civil immigration detainers and involvement in civil immigration enforcement diverts limited local resources from programs that are beneficial to the City.

http://library.amlegal.com/alpscripts/get-content.aspx

1/19/2018

CHAPTER 12I: CIVIL IMMIGRATION DETAINERS xx

Page 3 of 8

Case 3:17-cv-04642-WHO Document 66-1 Filed 01/19/18 Page 12 of 82

The City seeks to protect public safety, which is founded on trust and cooperation of community residents and local law enforcement. However, civil immigration detainers and notifications regarding release undermine community trust of law enforcement by instilling fear in immigrant communities of coming forward to report crimes and cooperate with local law enforcement agencies. A 2013 study by the University of Illinois, entitled "Insecure Communities: Latino Perceptions of Police Involvement in Immigration Enforcement," found that at least 40% of Latinos surveyed are less likely to provide information to police because they fear exposing themselves, family, or friends to a risk of deportation. Indeed, civil immigration detainers have resulted in the transfer of victims of crime, including domestic violence victims, to ICE.
The City has enacted numerous laws and policies to strengthen communities and to build trust between communities and local law enforcement. Local cooperation and assistance with civil immigration enforcement undermines community policing strategies.
In 2014, DHS ended the Secure Communities program and replaced it with PEP. PEP and S-Comm share many similarities. Just as with S-Comm, PEP uses state and federal databases to check an individual's fingerprints against immigration and other databases. PEP employs a number of tactics to facilitate transfers of individuals from local jails to immigration custody.
First, PEP uses a new form (known as DHS Form I-247N), which requests notification from local jails about an individual's release date prior to his or her release from local custody. As with civil immigration detainers, these notification requests are issued by immigration officers without judicial oversight, thus raising questions about local law enforcement's liability for constitutional violations if any person is overdetained when immigration agents are unable to be present at the time of the person's release from local custody.
Second, under PEP, ICE will continue to issue civil immigration detainer requests where local law enforcement officials are willing to respond to the requests, and in instances of "special circumstances," a term that has yet to be defined by DHS. Despite federal courts finding civil immigration detainers do not meet Fourth Amendment requirements, local jurisdictions are often unable to confirm whether or not a detention request is supported by probable cause or has been reviewed by a neutral magistrate.
The increase in information-sharing between local law enforcement and immigration officials raises serious concerns about privacy rights. Across the country, including in the California Central Valley, there has been an increase of ICE agents stationed in jails, who often have unrestricted access to jail databases, booking logs, and other documents that contain personal information of all jail inmates.
The City has an interest in ensuring that confidential information collected in the course of carrying out its municipal functions, including but not limited to public health programs and criminal investigations, is not used for unintended purposes that could hamper collection of information vital to those functions. To carry out public health programs, the City must be able to reliably collect confidential information from all residents. To solve crimes and protect the public, local law enforcement depends on the cooperation of all City residents. Information gathering and cooperation may be jeopardized if release of personal information results in a person being taken into immigration custody.
In late 2015, Pedro Figueroa, an immigrant father of an 8-year-old U.S. citizen, sought the San Francisco Police Department's help in locating his stolen vehicle. When Mr. Figueroa went to the police station to retrieve his car, which police had located, he was detained for some time by

http://library.amlegal.com/alpscripts/get-content.aspx

1/19/2018

CHAPTER 12I: CIVIL IMMIGRATION DETAINERS xx

Page 4 of 8

Case 3:17-cv-04642-WHO Document 66-1 Filed 01/19/18 Page 13 of 82

police officers before being released, and an ICE agent was waiting to take him into immigration custody immediately as he left the police station. It was later reported that both the Police Department and the San Francisco Sheriff's Department had contact with ICE officials while Mr. Figueroa was at the police station. He spent over two months in an immigration detention facility and remains in deportation proceedings. Mr. Figueroa's case has raised major concerns about local law enforcement's relationship with immigration authorities, and has weakened the immigrant community's confidence in policing practices. Community cooperation with local law enforcement is critical to investigating and prosecuting crimes. Without the cooperation of crime victims – like Mr. Figueroa – and witnesses, local law enforcement's ability to investigate and prosecute crime, particularly in communities with large immigrant populations, will be seriously compromised.
(Added by Ord. 204-13, File No. 130764, App. 10/8/2013, Eff. 11/7/2013; amended by Ord. 96-16 , File No. 160022, App. 6/17/2016, Eff. 7/17/2016)
(Former Sec. 12I.1 added by Ord. 391-90, App. 12/6/90; amended by Ord. 409-97, App. 10/31/97; Ord. 38-01, File No. 010010, App. 3/16/2001; repealed by Ord. 171-03, File No. 030422, App. 7/3/2003)
SEC. 12I.2. DEFINITIONS.
"Administrative warrant" means a document issued by the federal agency charged with the enforcement of the Federal immigration law that is used as a non-criminal, civil warrant for immigration purposes.
"Eligible for release from custody" means that the individual may be released from custody because one of the following conditions has occurred:
(a) All criminal charges against the individual have been dropped or dismissed.
(b) The individual has been acquitted of all criminal charges filed against him or her.
(c) The individual has served all the time required for his or her sentence.
(d) The individual has posted a bond, or has been released on his or her own recognizance.
(e) The individual has been referred to pre-trial diversion services.
(f) The individual is otherwise eligible for release under state or local law.
"Civil immigration detainer" means a non-mandatory request issued by an authorized federal immigration officer under Section 287.7 of Title 8 of the Code of Federal Regulations, to a local law enforcement official to maintain custody of an individual for a period not to exceed 48 hours and advise the authorized federal immigration officer prior to the release of that individual.
"Convicted" means the state of having been proved guilty in a judicial proceeding, unless the convictions have been expunged or vacated pursuant to applicable law. The date that an individual is Convicted starts from the date of release.
"Firearm" means a device, designed to be used as a weapon, from which is expelled through a barrel, a projectile by the force of an explosion or other form of combustion as defined in Penal Code Section 16520.
"Law enforcement official" means any City Department or officer or employee of a City Department, authorized to enforce criminal statutes, regulations, or local ordinances; operate jails

http://library.amlegal.com/alpscripts/get-content.aspx

1/19/2018

CHAPTER 12I: CIVIL IMMIGRATION DETAINERS xx

Page 5 of 8

Case 3:17-cv-04642-WHO Document 66-1 Filed 01/19/18 Page 14 of 82

or maintain custody of individuals in jails; and operate juvenile detention facilities or maintain custody of individuals in juvenile detention facilities.
"Notification request" means a non-mandatory request issued by an authorized federal immigration officer to a local law enforcement official asking for notification to the authorized immigration officer of an individual's release from local custody prior to the release of an individual from local custody. Notification requests may also include informal requests for release information by the Federal agency charged with enforcement of the Federal immigration law.
"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.
"Serious Felony" means all serious felonies listed under Penal Code Section 1192.7(c) that also are defined as violent felonies under Penal Code Section 667.5(c); rape as defined in Penal Code Sections 261, and 262; exploding a destructive device with intent to injure as defined in Penal Code Section 18740; assault on a person with caustic chemicals or flammable substances as defined in Penal Code Section 244; shooting from a vehicle at a person outside the vehicle or with great bodily injury as defined in Penal Code Sections 26100(c) and (d).
"Violent Felony" means any crime listed in Penal Code Section 667.5(c); human trafficking as defined in Penal Code Section 236.1; felony assault with a deadly weapon as defined in Penal Code Section 245; any crime involving use of a firearm, assault weapon, machine gun, or .50 BMG rifle, while committing or attempting to commit a felony that is charged as a sentencing enhancement as listed in Penal Code Sections 12022.4 and 12022.5.
(Added by Ord. 204-13, File No. 130764, App. 10/8/2013, Eff. 11/7/2013; amended by Ord. 96-16 , File No. 160022, App. 6/17/2016, Eff. 7/17/2016)
(Former Sec. 12I.2 added by Ord. 391-90, App. 12/6/90; amended by Ord. 278-96, App. 7/3/96; Ord. 409-97, App. 10/31/97; Ord. 38-01, File No. 010010, App. 3/16/2001; repealed by Ord. 171-03, File No. 030422, App. 7/3/2003)
SEC. 12I.3. RESTRICTIONS ON LAW ENFORCEMENT OFFICIALS.
(a) Except as provided in subsection (b), a law enforcement official shall not detain an individual on the basis of a civil immigration detainer after that individual becomes eligible for release from custody.
(b) Law enforcement officials may continue to detain an individual in response to a civil immigration detainer for up to 48 hours after that individual becomes eligible for release if the continued detention is consistent with state and federal law, and the individual meets both of the following criteria:
(1) The individual has been Convicted of a Violent Felony in the seven years immediately prior to the date of the civil immigration detainer; and
(2) A magistrate has determined that there is probable cause to believe the individual is guilty of a Violent Felony and has ordered the individual to answer to the same pursuant to Penal Code Section 872.

http://library.amlegal.com/alpscripts/get-content.aspx

1/19/2018

CHAPTER 12I: CIVIL IMMIGRATION DETAINERS xx

Page 6 of 8

Case 3:17-cv-04642-WHO Document 66-1 Filed 01/19/18 Page 15 of 82

In determining whether to continue to detain an individual based solely on a civil immigration detainer as permitted in this subsection (b), law enforcement officials shall consider evidence of the individual's rehabilitation and evaluate whether the individual poses a public safety risk. Evidence of rehabilitation or other mitigating factors to consider includes, but is not limited to: the individual's ties to the community, whether the individual has been a victim of any crime, the individual's contribution to the community, and the individual's participation in social service or rehabilitation programs.
This subsection (b) shall expire by operation of law on October 1, 2016, or upon a resolution passed by the Board of Supervisors that finds for purposes of this Chapter, the federal government has enacted comprehensive immigration reform that diminishes the need for this subsection (b), whichever comes first.
(c) Except as provided in subsection (d), a law enforcement official shall not respond to a federal immigration officer's notification request.
(d) Law Enforcement officials may respond to a federal immigration officer's notification request if the individual meets both of the following criteria:
(1) The individual either:
(A) has been Convicted of a Violent Felony in the seven years immediately prior to the date of the notification request; or
(B) has been Convicted of a Serious Felony in the five years immediately prior to the date of the notification request; or
(C) has been Convicted of three felonies identified in Penal Code sections 1192.7(c) or 667.5(c), or Government Code sections 7282.5(a)(2) or 7282.5(a)(3), other than domestic violence, arising out of three separate incidents in the five years immediately prior to the date of the notification request; and
(2) A magistrate has determined that there is probable cause to believe the individual is guilty of a felony identified in Penal Code sections 1192.7(c) or 667.5(c), or Government Code sections 7282.5(a)(2) or 7282.5(a)(3), other than domestic violence, and has ordered the individual to answer to the same pursuant to Penal Code Section 872.
In determining whether to respond to a notification request as permitted by this subsection (d), law enforcement officials shall consider evidence of the individual's rehabilitation and evaluate whether the individual poses a public safety risk. Evidence of rehabilitation or other mitigating factors to consider includes, but is not limited to, the individual's ties to the community, whether the individual has been a victim of any crime, the individual's contribution to the community, and the individual's participation in social service or rehabilitation programs.
(e) Law enforcement officials shall not arrest or detain an individual, or 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.
(f) Law enforcement officials shall make good faith efforts to seek federal reimbursement for all costs incurred in continuing to detain an individual, after that individual becomes eligible for release, in response each civil immigration detainer.

http://library.amlegal.com/alpscripts/get-content.aspx

1/19/2018

CHAPTER 12I: CIVIL IMMIGRATION DETAINERS xx

Page 7 of 8

Case 3:17-cv-04642-WHO Document 66-1 Filed 01/19/18 Page 16 of 82

(Added by Ord. 204-13, File No. 130764, App. 10/8/2013, Eff. 11/7/2013; amended by Ord. 96-16 , File No. 160022, App. 6/17/2016, Eff. 7/17/2016)
(Former Sec. 12I.3 added by Ord. 391-90, App. 12/6/90; amended by Ord. 409-97, App. 10/31/97; Ord. 38-01, File No. 010010, App. 3/16/2001; repealed by Ord. 171-03, File No. 030422, App. 7/3/2003)
SEC. 12I.4. PURPOSE OF THIS CHAPTER.
The intent of this Chapter 12I is to address requests for non-mandatory civil immigration detainers, voluntary notification of release of individuals, transmission of personal information, and civil immigration documents based solely on alleged violations of the civil provisions of immigration laws. Nothing in this Chapter shall be construed to apply to matters other than those relating to federal civil immigration detainers, notification of release of individuals, transmission of personal information, or civil immigration documents, based solely on alleged violations of the civil provisions of immigration laws. In all other respects, local law enforcement agencies may continue to collaborate with federal authorities to protect public safety. This collaboration includes, but is not limited to, participation in joint criminal investigations that are permitted under local policy or applicable city or state law.
(Added by Ord. 204-13, File No. 130764, App. 10/8/2013, Eff. 11/7/2013; amended by Ord. 96-16 , File No. 160022, App. 6/17/2016, Eff. 7/17/2016)
(Former Sec. 12I.4 added by Ord. 391-90, App. 12/6/90; amended by Ord. 409-97, App. 10/31/97; Ord. 38-01, File No. 010010, App. 3/16/2001; repealed by Ord. 171-03, File No. 030422, App. 7/3/2003)
SEC. 12I.5. SEMIANNUAL REPORT.
By no later than July 1, 2014, the Sheriff and Juvenile Probation Officer shall each provide to the Board of Supervisors and the Mayor a written report stating the number of detentions that were solely based on civil immigration detainers during the first six months following the effective date of this Chapter, and detailing the rationale behind each of those civil immigration detainers. Thereafter, the Sheriff and Juvenile Probation Officer shall each submit a written report to the Board of Supervisors and the Mayor, by January 1st and July 1st of each year, addressing the following issues for the time period covered by the report:
(a) a description of all communications received from the Federal agency charged with enforcement of the Federal immigration law, including but not limited to the number of civil immigration detainers, notification requests, or other types of communications.
(b) a description of any communications the Department made to the Federal agency charged with enforcement of the Federal immigration law, including but not limited to any Department's responses to inquires as described in subsection 12I.5 and the Department's determination of the applicability of subsections 12I.3(b), 12I.3(d) and 12I.3(e).
(Added by Ord. 204-13, File No. 130764, App. 10/8/2013, Eff. 11/7/2013; amended by Ord. 96-16 , File No. 160022, App. 6/17/2016, Eff. 7/17/2016)
(Former Sec. 12I.5 added by Ord. 391-90, App. 12/6/90; amended by Ord. 304-92, App. 9/29/92; Ord. 409-97, App. 10/31/97; Ord. 38-01, File No. 010010, App. 3/16/2001; repealed by Ord. 171-03, File No. 030422, App. 7/3/2003)
SEC. 12I.6. SEVERABILITY.
If any section, subsection, sentence, clause, phrase, or word of this Chapter 12I or it1 application, is for any reason held to be invalid or unconstitutional by a decision of any court of

http://library.amlegal.com/alpscripts/get-content.aspx

1/19/2018

CHAPTER 12I: CIVIL IMMIGRATION DETAINERS xx

Page 8 of 8

Case 3:17-cv-04642-WHO Document 66-1 Filed 01/19/18 Page 17 of 82

competent jurisdiction, such decision shall not affect the validity of the remaining portions of this Chapter 12I. The Board of Supervisors hereby declares that it would have passed this Chapter 12I and each and every section, subsection, sentence, clause, phrase, and word not declared invalid or unconstitutional without regard to whether any other portion of this Chapter 12I would be subsequently declared invalid or unconstitutional.
(Added by Ord. 204-13, File No. 130764, App. 10/8/2013, Eff. 11/7/2013)
(Former Sec. 12I.6 added by Ord. 391-90, App. 12/6/90; amended by Ord. 409-97, App. 10/31/97; Ord. 38-01, File No. 010010, App. 3/16/2001; repealed by Ord. 171-03, File No. 030422, App. 7/3/2003)
CODIFICATION NOTE
1. So in Ord. 204-13.
SEC. 12I.7. UNDERTAKING FOR THE GENERAL WELFARE.
In enacting and implementing this Chapter 12I the City is assuming an undertaking only to promote the general welfare. It is not assuming, nor is it imposing on its officers and employees, an obligation for breach of which it is liable in money damages to any person who claims that such breach proximately caused injury.
(Added by Ord. 204-13, File No. 130764, App. 10/8/2013, Eff. 11/7/2013)
(Former Sec. 12I.7 added by Ord. 391-90, App. 12/6/90; amended by Ord. 38-01, File No. 010010, App. 3/16/2001; repealed by Ord. 171-03, File No. 030422, App. 7/3/2003)

SEC. 12I.8.
(Added by Ord. 391-90, App. 12/6/90; amended by Ord. 409-97, App. 10/31/97; Ord. 38-01, File No. 010010, App. 3/16/2001; repealed by Ord. 171-03, File No. 030422, App. 7/3/2003)

SEC. 12I.10.
(Added by Ord. 391-90, App. 12/6/90; amended by Ord. 38-01, File No. 010010, App. 3/16/2001; repealed by Ord. 171-03, File No. 030422, App. 7/3/2003)

SEC. 12I.11.
(Added by Ord. 391-90, App. 12/6/90; amended by Ord. 38-01, File No. 010010, App. 3/16/2001; repealed by Ord. 171-03, File No. 030422, App. 7/3/2003)

http://library.amlegal.com/alpscripts/get-content.aspx

1/19/2018

Case 3:17-cv-04642-WHO Document 66-1 Filed 01/19/18 Page 18 of 82
Exhibit C

Attorney General Sessions Announces Immigration Compliance Requirements for Edwar... Page 1 of 1 Case 3:17-cv-04642-WHO Document 66-1 Filed 01/19/18 Page 19 of 82

JUSTICE NEWS

Department of Justice Office of Public Affairs

FOR IMMEDIATE RELEASE

Tuesday, July 25, 2017

Attorney General Sessions Announces Immigration Compliance Requirements for Edward Byrne Memorial Justice Assistance Grant
Programs
The Department of Justice today posted a solicitation for the Edward Byrne Memorial Justice Assistance Grant Programs (“Byrne JAG”). Recipients for FY 2017 will be notified of new conditions of their grants that will increase information sharing between federal, state, and local law enforcement, ensuring that federal immigration authorities have the information they need to enforce immigration laws and keep our communities safe.
"So-called 'sanctuary' policies make all of us less safe because they intentionally undermine our laws and protect illegal aliens who have committed crimes,” Attorney General Jeff Sessions said. “These policies also encourage illegal immigration and even human trafficking by perpetuating the lie that in certain cities, illegal aliens can live outside the law. This can have tragic consequences, like the 10 deaths we saw in San Antonio this weekend. As part of accomplishing the Department of Justice's top priority of reducing violent crime, we must encourage these 'sanctuary' jurisdictions to change their policies and partner with federal law enforcement to remove criminals. From now on, the Department will only provide Byrne JAG grants to cities and states that comply with federal law, allow federal immigration access to detention facilities, and provide 48 hours notice before they release an illegal alien wanted by federal authorities. This is consistent with long-established cooperative principles among law enforcement agencies. This is what the American people should be able to expect from their cities and states, and these long overdue requirements will help us take down MS-13 and other violent transnational gangs, and make our country safer."
Attachment(s): Download Byrne JAG Grant Policy Backgrounder
Topic(s): Grants Immigration
Component(s): Office of the Attorney General
Press Release Number: 17-826
Updated November 8, 2017

https://www.justice.gov/opa/pr/attorney-general-sessions-announces-immigration-complia... 1/18/2018

Case 3:17-cv-04642-WHO Document 66-1 Filed 01/19/18 Page 20 of 82
Exhibit D

Case 3:17-cv-04642-WHO Document 66-1 Filed 01/19/18 Page 21 of 82

U.S. Department of Justice Office of Justice Programs

Bureau of Justice Assistance

Office of Justice Programs

Washington, D.C. 20531

August 26, 2016

The Honorable Edwin Lee City and County of San Francisco 1 Dr. Carlton Goodlett Place Suite 496– City Hall San Francisco, CA 94102-4676
Dear Mayor Lee:
On behalf of Attorney General Loretta Lynch, it is my pleasure to inform you that the Office of Justice Programs has approved your application for funding under the FY 16 Edward Byrne Memorial Justice Assistance Grant (JAG) Program - Local Solicitation in the amount of $522,943 for City and County of San Francisco. Enclosed you will find the Grant Award and Special Conditions documents. This award is subject to all administrative and financial requirements, including the timely submission of all financial and programmatic reports, resolution of all interim audit findings, and the maintenance of a minimum level of cash-on-hand. Should you not adhere to these requirements, you will be in violation of the terms of this agreement and the award will be subject to termination for cause or other administrative action as appropriate.
If you have questions regarding this award, please contact:
- Program Questions, Gale Farquhar, Program Manager at (202) 598-9522; and
- Financial Questions, the Office of the Chief Financial Officer, Customer Service Center (CSC) at (800) 458-0786, or you may contact the CSC at ask.ocfo@usdoj.gov.
Congratulations, and we look forward to working with you.
Sincerely,

Denise O'Donnell Director
Enclosures

Case 3:17-cv-04642-WHO Document 66-1 Filed 01/19/18 Page 22 of 82
OFFICE FOR CIVIL RIGHTS Office of Justice Programs U.S. Department of Justice
810 7th Street, NW Washington, DC 20531
Tel: (202) 307-0690 TTY: (202) 307-2027 E-mail: askOCR@usdoj.gov Website: www.ojp.usdoj.gov/ocr
August 26, 2016
The Honorable Edwin Lee City and County of San Francisco 1 Dr. Carlton Goodlett Place Suite 496– City Hall San Francisco, CA 94102-4676
Dear Mayor Lee:
Congratulations on your recent award. In establishing financial assistance programs, Congress linked the receipt of federal funding to compliance with federal civil rights laws. The Office for Civil Rights (OCR), Office of Justice Programs (OJP), U.S. Department of Justice (DOJ) is responsible for ensuring that recipients of financial assistance from the OJP, the Office of Community Oriented Policing Services (COPS), and the Office on Violence Against Women (OVW) comply with the applicable federal civil rights laws. We at the OCR are available to help you and your organization meet the civil rights requirements that come with DOJ funding.
Ensuring Access to Federally Assisted Programs
Federal laws that apply to recipients of financial assistance from the DOJ prohibit discrimination on the basis of race, color, national origin, religion, sex, or disability in funded programs or activities, not only in employment but also in the delivery of services or benefits. A federal law also prohibits recipients from discriminating on the basis of age in the delivery of services or benefits.
In March of 2013, President Obama signed the Violence Against Women Reauthorization Act of 2013. The statute amends the Violence Against Women Act of 1994 (VAWA) by including a nondiscrimination grant condition that prohibits discrimination based on actual or perceived race, color, national origin, religion, sex, disability, sexual orientation, or gender identity. The new nondiscrimination grant condition applies to certain programs funded after October 1, 2013. The OCR and the OVW have developed answers to some frequently asked questions about this provision to assist recipients of VAWA funds to understand their obligations. The Frequently Asked Questions are available at http://ojp.gov/about/ocr/vawafaqs.htm.
Enforcing Civil Rights Laws
All recipients of federal financial assistance, regardless of the particular funding source, the amount of the grant award, or the number of employees in the workforce, are subject to prohibitions against unlawful discrimination. Accordingly, the OCR investigates recipients that are the subject of discrimination complaints from both individuals and groups. In addition, based on regulatory criteria, the OCR selects a number of recipients each year for compliance reviews, audits that require recipients to submit data showing that they are providing services equitably to all segments of their service population and that their employment practices meet equal opportunity standards.

Case 3:17-cv-04642-WHO Document 66-1 Filed 01/19/18 Page 23 of 82
Providing Services to Limited English Proficiency (LEP) Individuals
In accordance with DOJ guidance pertaining to Title VI of the Civil Rights Act of 1964, 42 U.S.C. § 2000d, recipients of federal financial assistance must take reasonable steps to provide meaningful access to their programs and activities for persons with limited English proficiency (LEP). See U.S. Department of Justice, Guidance to Federal Financial Assistance Recipients Regarding Title VI Prohibition Against National Origin Discrimination Affecting Limited English Proficient Persons, 67 Fed. Reg. 41,455 (2002). For more information on the civil rights responsibilities that recipients have in providing language services to LEP individuals, please see the website http://www.lep.gov.
Ensuring Equal Treatment for Faith-Based Organizations
The DOJ regulation, Equal Treatment for Faith-Based Organizations, 28 C.F.R. pt. 38, requires State Administering Agencies (SAAs) to treat faith-based organizations the same as any other applicant or recipient. The regulation prohibits SAAs from making awards or grant administration decisions on the basis of an organization's religious character or affiliation, religious name, or the religious composition of its board of directors.
The regulation also prohibits faith-based organizations from using financial assistance from the DOJ to fund inherently (or explicitly) religious activities. While faith-based organizations can engage in non-funded inherently religious activities, they must hold them separately from the program funded by the DOJ, and recipients cannot compel beneficiaries to participate in them. The Equal Treatment Regulation also makes clear that organizations participating in programs funded by the DOJ are not permitted to discriminate in the provision of services on the basis of a beneficiary's religion. For more information on the regulation, please see the OCR's website at http://www.ojp.usdoj.gov/about/ocr/equal_fbo.htm.
SAAs and faith-based organizations should also note that the Omnibus Crime Control and Safe Streets Act (Safe Streets Act) of 1968, as amended, 42 U.S.C. § 3789d(c); the Victims of Crime Act of 1984, as amended, 42 U.S.C. § 10604(e); the Juvenile Justice and Delinquency Prevention Act of 1974, as amended, 42 U.S.C. § 5672(b); and VAWA, Pub. L. No. 113-4, sec. 3(b)(4), 127 Stat. 54, 61-62 (to be codified at 42 U.S.C. § 13925(b)(13)) contain prohibitions against discrimination on the basis of religion in employment. Despite these nondiscrimination provisions, the DOJ has concluded that it may construe the Religious Freedom Restoration Act (RFRA) on a case-bycase basis to permit some faith-based organizations to receive DOJ funds while taking into account religion when hiring staff, even if the statute that authorizes the funding program generally forbids recipients from considering religion in employment decisions. Please consult with the OCR if you have any questions about the regulation or the application of RFRA to the statutes that prohibit discrimination in employment.
Using Arrest and Conviction Records in Making Employment Decisions
The OCR issued an advisory document for recipients on the proper use of arrest and conviction records in making hiring decisions. See Advisory for Recipients of Financial Assistance from the U.S. Department of Justice on the U.S. Equal Employment Opportunity Commission's Enforcement Guidance: Consideration of Arrest and Conviction Records in Employment Decisions Under Title VII of the Civil Rights Act of 1964 (June 2013), available at http://www.ojp.usdoj.gov//about/ocr/pdfs/UseofConviction_Advisory.pdf. Recipients should be mindful that the misuse of arrest or conviction records to screen either applicants for employment or employees for retention or promotion may have a disparate impact based on race or national origin, resulting in unlawful employment discrimination. In light of the Advisory, recipients should consult local counsel in reviewing their employment practices. If warranted, recipients should also incorporate an analysis of the use of arrest and conviction records in their Equal Employment Opportunity Plans (EEOPs) (see below).
Complying with the Safe Streets Act
An organization that is a recipient of financial assistance subject to the nondiscrimination provisions of the Safe Streets Act, must meet two obligations: (1) complying with the federal regulation pertaining to the development of an EEOP (see 28 C.F.R. pt. 42, subpt. E) and (2) submitting to the OCR findings of discrimination (see 28 C.F.R. §§ 42.204(c), .205(c)(5)).

Case 3:17-cv-04642-WHO Document 66-1 Filed 01/19/18 Page 24 of 82
Meeting the EEOP Requirement 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, your organization must complete and submit Section A of the Certification Form, which is available online at http://www.ojp.usdoj.gov/about/ocr/pdfs/cert.pdf. If your organization is a government agency or private business and receives an award of $25,000 or more, but less than $500,000, 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 (formerly called an EEOP Short Form), but it does not have to submit the report to the OCR for review. Instead, your organization has to maintain the Utilization Report on file and make it available for review on request. In addition, your organization has to complete Section B of the Certification Form and return it to the OCR. The Certification Form is available at http://www.ojp.usdoj.gov/about/ocr/pdfs/cert.pdf. If your organization is a government agency or private business and has received an award for $500,000 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 (formerly called an EEOP Short Form) and submit it to the OCR for review within sixty days from the date of this letter. For assistance in developing a Utilization Report, please consult the OCR's website at http://www.ojp.usdoj.gov/about/ocr/eeop.htm. In addition, your organization has to complete Section C of the Certification Form and return it to the OCR. The Certification Form is available at http://www.ojp.usdoj.gov/about/ocr/pdfs/cert.pdf. To comply with the EEOP requirements, you may request technical assistance from an EEOP specialist at the OCR by telephone at (202) 307-0690, by TTY at (202) 307-2027, or by e-mail at EEOsubmisson@usdoj.gov.
Meeting the Requirement to Submit Findings of Discrimination If in the three years prior to the date of the grant award, your organization has received an adverse finding of discrimination based on race, color, national origin, religion, or sex, after a due-process hearing, from a state or federal court or from a state or federal administrative agency, your organization must send a copy of the finding to the OCR. Ensuring the Compliance of Subrecipients SAAs must have standard assurances to notify subrecipients of their civil rights obligations, written procedures to address discrimination complaints filed against subrecipients, methods to monitor subrecipients' compliance with civil rights requirements, and a program to train subrecipients on applicable civil rights laws. In addition, SAAs must submit to the OCR every three years written Methods of Administration (MOA) that summarize the policies and procedures that they have implemented to ensure the civil rights compliance of subrecipients. For more information on the MOA requirement, see http://www.ojp.usdoj.gov/funding/other_requirements.htm. If the OCR can assist you in any way in fulfilling your organization's civil rights responsibilities as a recipient of federal financial assistance, please contact us.
Sincerely,
Michael L. Alston Director cc: Grant Manager
Financial Analyst

Case 3:17-cv-04642-WHO Document 66-1 Filed 01/19/18 Page 25 of 82

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

Grant

PAGE 1 OF 13

1. RECIPIENT NAME AND ADDRESS (Including Zip Code) City and County of San Francisco 1 Dr. Carlton Goodlett PlaceSuite 496– City Hall San Francisco, CA 94102-4676
2a. GRANTEE IRS/VENDOR NO. 946000484
2b. GRANTEE DUNS NO. 070384255
3. PROJECT TITLE FY 16 JAG Program

4. AWARD NUMBER: 2016-DJ-BX-0898

5. PROJECT PERIOD: FROM BUDGET PERIOD: FROM

10/01/2015 TO 09/30/2019 10/01/2015 TO 09/30/2019

6. AWARD DATE 08/26/2016
8. SUPPLEMENT NUMBER 00

7. ACTION Initial

9. PREVIOUS AWARD AMOUNT 10. AMOUNT OF THIS AWARD

$ 0 $ 522,943

11. TOTAL AWARD

$ 522,943

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 FY16(BJA - JAG) 42 USC 3750, et seq.
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
Denise O'Donnell Director

GRANTEE ACCEPTANCE 18. TYPED NAME AND TITLE OF AUTHORIZED GRANTEE OFFICIAL
Edwin Lee 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. RDJUGT0505

X

B

DJ

80

00

00

522943

OJP FORM 4000/2 (REV. 5-87) PREVIOUS EDITIONS ARE OBSOLETE. OJP FORM 4000/2 (REV. 4-88)

Case 3:17-cv-04642-WHO Document 66-1 Filed 01/19/18 Page 26 of 82

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

AWARD CONTINUATION SHEET
Grant

PAGE 2 OF 13

PROJECT NUMBER 2016-DJ-BX-0898

AWARD DATE

08/26/2016

SPECIAL CONDITIONS
1. 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 the Department of Justice (DOJ) in 2 C.F.R. Part 2800 (together, the "Part 200 Uniform Requirements") apply to this 2016 award from the Office of Justice Programs (OJP).
The Part 200 Uniform Requirements were first adopted by DOJ on December 26, 2014. If this 2016 award supplements funds previously awarded by OJP under the same award number (e.g., funds awarded in 2014 or earlier years), 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 2016 award.
For more information and resources on the Part 200 Uniform Requirements as they relate to OJP awards and subawards ("subgrants"), see the Office of Justice Programs (OJP) website at http://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.
2. Compliance with DOJ Grants Financial Guide
The recipient agrees to comply with the Department of Justice Grants Financial Guide as posted on the OJP website (currently, the "2015 DOJ Grants Financial Guide"), including any updated version that may be posted during the period of performance.
3. 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 http://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.

OJP FORM 4000/2 (REV. 4-88)

Case 3:17-cv-04642-WHO Document 66-1 Filed 01/19/18 Page 27 of 82

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

AWARD CONTINUATION SHEET
Grant

PAGE 3 OF 13

PROJECT NUMBER 2016-DJ-BX-0898

AWARD DATE

08/26/2016

SPECIAL CONDITIONS 4. 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.
5. 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 DOJ awarding agency, must seek a budget-modification or change-of-project-scope grant adjustment notice (GAN) to eliminate any inappropriate duplication of funding.
6. Requirements related to System for Award Management and Unique Entity Identifiers
The recipient must comply with applicable requirements regarding the System for Award Management (SAM), currently accessible at http://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 http://ojp.gov/funding/Explore/SAM.htm (Award condition: System for Award Management (SAM) and Universal Identifier Requirements), and are incorporated by reference here.
This special 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).
7. 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 http://ojp.gov/funding/Explore/SubawardAuthorization.htm (Award condition: Award Condition: All subawards ("subgrants") must have specific federal authorization), and are incorporated by reference here.

OJP FORM 4000/2 (REV. 4-88)

Case 3:17-cv-04642-WHO Document 66-1 Filed 01/19/18 Page 28 of 82

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

AWARD CONTINUATION SHEET
Grant

PAGE 4 OF 13

PROJECT NUMBER 2016-DJ-BX-0898

AWARD DATE

08/26/2016

SPECIAL CONDITIONS
8. 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 http://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.
9. 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 http://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.
10. 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").
11. Requirement for data on performance and effectiveness under the award
The recipient must collect and maintain data that measure the performance and effectiveness of activities 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, and other applicable laws.
12. 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 http://ojp.gov/funding/ojptrainingguidingprinciples.htm.

OJP FORM 4000/2 (REV. 4-88)

Case 3:17-cv-04642-WHO Document 66-1 Filed 01/19/18 Page 29 of 82

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

AWARD CONTINUATION SHEET
Grant

PAGE 5 OF 13

PROJECT NUMBER 2016-DJ-BX-0898

AWARD DATE

08/26/2016

SPECIAL CONDITIONS 13. 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.
14. 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.
15. 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.
16. 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 http://www.ecfr.gov/cgibin/ECFR?page=browse), by browsing to Title 28-Judicial Administration, Chapter 1, Part 38, under e-CFR "current" data.
17. Restrictions on "lobbying"
Federal funds 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.
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 this prohibition, 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-04642-WHO Document 66-1 Filed 01/19/18 Page 30 of 82

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

AWARD CONTINUATION SHEET
Grant

PAGE 6 OF 13

PROJECT NUMBER 2016-DJ-BX-0898

AWARD DATE

08/26/2016

SPECIAL CONDITIONS
18. Compliance with general appropriations-law restrictions on the use of federal funds (FY 2016)
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, 2016, are set out at http://ojp.gov/funding/Explore/FY2016AppropriationsLawRestrictions.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.
19. Reporting Potential Fraud, Waste, and Abuse, and Similar Misconduct
The recipient and any subrecipients ("subgrantees") 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 http://www.usdoj.gov/oig.

OJP FORM 4000/2 (REV. 4-88)

Case 3:17-cv-04642-WHO Document 66-1 Filed 01/19/18 Page 31 of 82

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

AWARD CONTINUATION SHEET
Grant

PAGE 7 OF 13

PROJECT NUMBER 2016-DJ-BX-0898

AWARD DATE

08/26/2016

SPECIAL CONDITIONS
20. 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-04642-WHO Document 66-1 Filed 01/19/18 Page 32 of 82

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

AWARD CONTINUATION SHEET
Grant

PAGE 8 OF 13

PROJECT NUMBER 2016-DJ-BX-0898

AWARD DATE

08/26/2016

SPECIAL CONDITIONS
21. Compliance with 41 U.S.C. 4712 (including prohibitions on reprisal; notice to employees)
The recipient 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.
22. 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.
23. The recipient agrees to comply with OJP grant monitoring guidelines, protocols, and procedures, and to cooperate with BJA and OCFO on all grant monitoring requests, including requests related to desk reviews, enhanced programmatic desk reviews, and/or site visits. The recipient agrees to provide to BJA and OCFO all documentation necessary to complete monitoring tasks, including documentation related to any subawards made under this award. Further, the recipient agrees to abide by reasonable deadlines set by BJA and OCFO for providing the requested documents. Failure to cooperate with BJA's/OCFO's grant monitoring activities may result in sanctions affecting the recipient's DOJ awards, including, but not limited to: withholdings and/or other restrictions on the recipient's access to grant funds; referral to the Office of the Inspector General for audit review; designation of the recipient as a DOJ High Risk grantee; or termination of an award(s).
24. The recipient agrees to comply with applicable requirements to report first-tier subawards 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 of award funds. Such data will be submitted to the FFATA Subaward Reporting System (FSRS). The details of recipient obligations, which derive from the Federal Funding Accountability and Transparency Act of 2006 (FFATA), are posted on the Office of Justice Programs web site at http://ojp.gov/funding/Explore/FFATA.htm (Award condition: Reporting Subawards and Executive Compensation), and are incorporated by reference here. This condition, and its reporting requirement, does not apply to grant awards 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).
25. 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.

OJP FORM 4000/2 (REV. 4-88)

Case 3:17-cv-04642-WHO Document 66-1 Filed 01/19/18 Page 33 of 82

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

AWARD CONTINUATION SHEET
Grant

PAGE 9 OF 13

PROJECT NUMBER 2016-DJ-BX-0898

AWARD DATE

08/26/2016

SPECIAL CONDITIONS
26. In order to promote information sharing and enable interoperability among disparate systems across the justice and public safety community, OJP requires the grantee to comply with DOJ's Global Justice Information Sharing Initiative (DOJ's Global) guidelines and recommendations for this particular grant. Grantee shall conform to the Global Standards Package (GSP) and all constituent elements, where applicable, as described at: http://www.it.ojp.gov/gsp_grantcondition. Grantee 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.
27. 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 grantee 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.
28. The recipient agrees that any information technology system funded or supported by OJP funds will 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). Recipient may not satisfy such a fine with federal funds.
29. Grantee agrees to comply with the requirements of 28 C.F.R. Part 46 and all Office of Justice Programs policies and procedures regarding the protection of human research subjects, including obtainment of Institutional Review Board approval, if appropriate, and subject informed consent.
30. Grantee agrees to comply with all confidentiality requirements of 42 U.S.C. section 3789g and 28 C.F.R. Part 22 that are applicable to collection, use, and revelation of data or information. Grantee further agrees, as a condition of grant approval, to submit a Privacy Certificate that is in accord with requirements of 28 C.F.R. Part 22 and, in particular, section 22.23.
31. Award recipients must verify 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.
32. The grantee agrees that within 120 days of award acceptance, each current member of a law enforcement task force funded with these funds who is a task force commander, agency executive, task force officer, or other task force member of equivalent rank, will complete required online (internet-based) task force training. Additionally, all future task force members are required to complete this training once during the life of this award, or once every four years if multiple awards include this requirement. The training is provided free of charge online through BJA's Center for Task Force Integrity and Leadership (www.ctfli.org). This 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. When BJA funding supports a task force, a task force personnel roster should be compiled and maintained, along with course completion certificates, by the grant recipient. Additional information is available regarding this required training and access methods via BJA's web site and the Center for Task Force Integrity and Leadership (www.ctfli.org).
33. The recipient agrees to participate in BJA-sponsored training events, technical assistance events, or conferences held by BJA or its designees, upon BJA's request.

OJP FORM 4000/2 (REV. 4-88)

Case 3:17-cv-04642-WHO Document 66-1 Filed 01/19/18 Page 34 of 82

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

AWARD CONTINUATION SHEET
Grant

PAGE 10 OF 13

PROJECT NUMBER 2016-DJ-BX-0898

AWARD DATE

08/26/2016

SPECIAL CONDITIONS
34. 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 Office of Justice Programs (OJP) program office prior to obligation or expenditure of such funds.
35. The grantee agrees to 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 grant funds, either directly by the grantee or by a subgrantee. Accordingly, the grantee 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 grant, the grantee agrees to contact BJA.
The grantee understands that this special condition applies to its following new activities whether or not they are being specifically funded with these grant funds. That is, as long as the activity is being conducted by the grantee, a subgrantee, or any third party and the activity needs to be undertaken in order to use these grant funds, this special condition must first be met. The activities covered by this special 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 grantee 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 grantee further understands and agrees to the requirements for implementation of a Mitigation Plan, as detailed at http://www.ojp.usdoj.gov/BJA/resource/nepa.html, for programs relating to methamphetamine laboratory operations.
Application of This Special Condition to Grantee's Existing Programs or Activities: For any of the grantee's or its subgrantees' existing programs or activities that will be funded by these grant funds, the grantee, 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.
36. The recipient 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 grant funds in the trust fund (including any interest earned) during the period of the grant and expend within 90 days thereafter. Any unobligated or unexpended funds, including interest earned, must be returned to the Office of Justice Programs at the time of closeout.
37. 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 Bulletproof Vest Partnership (BVP) program.

OJP FORM 4000/2 (REV. 4-88)

Case 3:17-cv-04642-WHO Document 66-1 Filed 01/19/18 Page 35 of 82

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

AWARD CONTINUATION SHEET
Grant

PAGE 11 OF 13

PROJECT NUMBER 2016-DJ-BX-0898

AWARD DATE

08/26/2016

SPECIAL CONDITIONS
38. Ballistic-resistant and stab-resistant 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 vests have been tested and found to comply with applicable National Institute of Justice ballistic or stab standards and are listed on the NIJ Compliant Body Armor Model List (http://nij.gov). In addition, ballistic-resistant and stab-resistant body armor purchased must be Americanmade. The latest NIJ standard information can be found here: http://www.nij.gov/topics/technology/body-armor/safetyinitiative.htm.
39. The recipient agrees to submit a signed certification that all law enforcement agencies receiving vests purchased with JAG funds have a written "mandatory wear" policy in effect. Fiscal agents and state agencies must keep signed certifications on file for any subrecipients planning to utilize JAG funds for ballistic-resistant and stab-resistant body armor purchases. This policy must be in place for at least all uniformed officers before any JAG funding can be used by the 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.
40. The recipient agrees to monitor subawards under this JAG award in accordance with all applicable statutes, regulations, OMB circulars, and guidelines, including the DOJ Financial Guide, and to include the applicable conditions of this award in any subaward. The recipient is responsible for oversight of subrecipient spending and monitoring of specific outcomes and benefits attributable to use of JAG funds by subrecipients. The recipient agrees to submit, upon request, documentation of its policies and procedures for monitoring of subawards under this award.
41. The recipient agrees that funds received under this award will not be used to supplant State or local funds, but 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.
42. Award recipients must submit quarterly Federal Financial Reports (SF-425) and semi-annual performance reports through GMS (https://grants.ojp.usdoj.gov). Consistent with the Department's responsibilities under the Government Performance and Results Act (GPRA), P.L. 103-62, applicants who receive funding under this solicitation must provide data that measure the results of their work. Therefore, quarterly performance metrics reports must be submitted 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.
43. Any law enforcement agency receiving direct or sub-awarded JAG funding must submit quarterly accountability metrics data related to training that officers have received on the use of force, racial and ethnic bias, de-escalation of conflict, and constructive engagement with the public.
44. BJA strongly encourages the recipient to submit annual (or more frequent) JAG success stories. To submit a success story, sign in to your My BJA account at https://www.bja.gov/Login.aspx to access the Success Story Submission form. If you do not yet have a My BJA account, please register at https://www.bja.gov/profile.aspx. Once you register, one of the available areas on your My BJA page will be "My Success Stories". Within this box, you will see an option to add a Success Story. Once reviewed and approved by BJA, all success stories will appear on the new BJA Success Story web page at https://www.bja.gov/SuccessStoryList.aspx.
45. Recipient understands and agrees that 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 may be accessed here: https://www.bja.gov/funding/JAGControlledPurchaseList.pdf

OJP FORM 4000/2 (REV. 4-88)

Case 3:17-cv-04642-WHO Document 66-1 Filed 01/19/18 Page 36 of 82

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

AWARD CONTINUATION SHEET
Grant

PAGE 12 OF 13

PROJECT NUMBER 2016-DJ-BX-0898

AWARD DATE

08/26/2016

SPECIAL CONDITIONS
46. The recipient understands that, pursuant to recommendation 2.1 of Executive Order 13688, law enforcement agencies that acquire controlled equipment through Federal programs 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 agrees to provide a copy of the General Policing Standards and Specific Controlled Equipment Standards, and any related policies and protocols.
47. Recipient understands and agrees that the purchase or acquisition of 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, with award funds by an agency will trigger a requirement that the agency 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 make that information available to BJA upon request. Details about what information must be collected and retained may be accessed here: https://www.whitehouse.gov/sites/default/files/docs/le_equipment_wg_final_report_final.pdf
48. Recipient understands and agrees that failure to comply with conditions related to Prohibited or Controlled Expenditures may result in a prohibition from further Controlled Expenditure approval under this or other federal awards.
49. Recipient understands and agrees that 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.
50. Recipient understands and agrees that, notwithstanding 2 CFR § 200.313, no equipment listed on the Controlled Expenditure List that is purchased under this award 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 was requesting approval to use award fund 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.
Recipient further understands and agrees to notify BJA prior to the disposal of any items on the Controlled Expenditure List purchased under this award, and to abide by any applicable laws and regulations in such disposal.

OJP FORM 4000/2 (REV. 4-88)

Case 3:17-cv-04642-WHO Document 66-1 Filed 01/19/18 Page 37 of 82

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

AWARD CONTINUATION SHEET
Grant

PAGE 13 OF 13

PROJECT NUMBER 2016-DJ-BX-0898

AWARD DATE

08/26/2016

SPECIAL CONDITIONS
51. Recipient integrity and performance matters: Requirement to report information on certain civil, criminal, and administrative proceedings to SAM and FAPIIS
The recipient must comply with any and all applicable requirements regarding reporting of information on civil, criminal, and administrative proceedings connected with (or connected to the performance of) either this OJP award or any other grant, cooperative agreement, or procurement contract from the federal government. Under certain circumstances, recipients of OJP awards are required to report information about such proceedings, through the federal System for Award Management (known as "SAM"), to the designated federal integrity and performance system (currently, "FAPIIS").
The details of recipient obligations regarding the required reporting (and updating) of information on certain civil, criminal, and administrative proceedings to the federal designated integrity and performance system (currently, "FAPIIS") within SAM are posted on the OJP web site at http://ojp.gov/funding/FAPIIS.htm (Award condition: Recipient Integrity and Performance Matters, including Recipient Reporting to FAPIIS), and are incorporated by reference here.

OJP FORM 4000/2 (REV. 4-88)

Case 3:17-cv-04642-WHO Document 66-1 Filed 01/19/18 Page 38 of 82
U.S. Department of Justice Office of Justice Programs Bureau of Justice Assistance

Washington, D.C. 20531

Memorandum To: Official Grant File

From:

Orbin Terry, NEPA Coordinator

Subject:

Incorporates NEPA Compliance in Further Developmental Stages for City and County of San Francisco

The Edward Byrne Memorial Justice Assistance Grant Program (JAG) allows states and local governments to support a broad range of activities to prevent and control crime and to improve the criminal justice system, some of which could have environmental impacts. All recipients of JAG funding must assist BJA in complying with NEPA and other related federal environmental impact analyses requirements in the use of grant funds, whether the funds are used directly by the grantee or by a subgrantee or third party. Accordingly, prior to obligating funds for any of the specified activities, the grantee must first determine if any of the specified activities will be funded by the grant.
The specified activities requiring environmental analysis are: a. New construction; b. Any 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.
Complying with NEPA may require the preparation of an Environmental Assessment and/or an Environmental Impact Statement, as directed by BJA. Further, for programs relating to methamphetamine laboratory operations, the preparation of a detailed Mitigation Plan will be required. For more information about Mitigation Plan requirements, please see https://www.bja.gov/Funding/nepa.html.

Please be sure to carefully review the grant conditions on your award document, as it may contain more specific information about environmental compliance.

Case 3:17-cv-04642-WHO Document 66-1 Filed 01/19/18 Page 39 of 82

U.S. Department of Justice
Office of Justice Programs
Bureau of Justice Assistance
This project is supported under FY16(BJA - JAG) 42 USC 3750, et seq.

GRANT MANAGER'S MEMORANDUM, PT. I: PROJECT SUMMARY

Grant

PROJECT NUMBER 2016-DJ-BX-0898

PAGE 1 OF 1

1. STAFF CONTACT (Name & telephone number) Gale Farquhar (202) 598-9522
3a. TITLE OF THE PROGRAM 2016 Edward Byrne Memorial Justice Assistance Grant Program

2. PROJECT DIRECTOR (Name, address & telephone number)
Maria Su Director 1390 Market Street Suite 900 San Francisco, CA 94102-5341 (415) 554-3547
3b. POMS CODE (SEE INSTRUCTIONS ON REVERSE)

4. TITLE OF PROJECT FY 16 JAG Program

5. NAME & ADDRESS OF GRANTEE
City and County of San Francisco 1 Dr. Carlton Goodlett PlaceSuite 496– City Hall San Francisco, CA 94102-4676

7. PROGRAM PERIOD

FROM:

10/01/2015

9. AMOUNT OF AWARD $ 522,943

11. SECOND YEAR'S BUDGET

TO: 09/30/2019

6. NAME & ADRESS OF SUBGRANTEE

8. BUDGET PERIOD

FROM:

10/01/2015

TO: 09/30/2019

10. DATE OF AWARD 08/26/2016

12. SECOND YEAR'S BUDGET AMOUNT

13. THIRD YEAR'S BUDGET PERIOD

14. THIRD YEAR'S BUDGET AMOUNT

15. SUMMARY DESCRIPTION OF PROJECT (See instruction on reverse)
The Edward Byrne Memorial Justice Assistance Grant Program (JAG) allows states and units of local government, including tribes, to support a broad range of activities to prevent and control crime based on their own state and local needs and conditions. Grant funds can be used for state and local initiatives, technical assistance, training, personnel, equipment, supplies, contractual support, and information systems for criminal justice, including for any one or more of the following program areas: 1) law enforcement programs; 2) prosecution and court programs; 3) prevention and education programs; 4) corrections and community corrections programs; 5) drug treatment and enforcement programs; 6) planning, evaluation, and technology improvement programs; and 7) crime victim and witness programs (other than compensation). The City and County of San Francisco will use the FY 16 JAG funds to hire personnel to fill critical positions in the criminal justice system and to provide training for executive leadership. NCA/NCF
OJP FORM 4000/2 (REV. 4-88)

Case 3:17-cv-04642-WHO Document 66-1 Filed 01/19/18 Page 40 of 82

Case 3:17-cv-04642-WHO Document 66-1 Filed 01/19/18 Page 41 of 82
Exhibit E

Case 3:17-cv-04642-WHO Document 66-1 Filed 01/19/18 Page 42 of 82

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-04642-WHO Document 66-1 Filed 01/19/18 Page 43 of 82

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)

Case 3:17-cv-04642-WHO Document 66-1 Filed 01/19/18 Page 44 of 82

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)

Case 3:17-cv-04642-WHO Document 66-1 Filed 01/19/18 Page 45 of 82

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-04642-WHO Document 66-1 Filed 01/19/18 Page 46 of 82

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-04642-WHO Document 66-1 Filed 01/19/18 Page 47 of 82

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-04642-WHO Document 66-1 Filed 01/19/18 Page 48 of 82

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-04642-WHO Document 66-1 Filed 01/19/18 Page 49 of 82

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-04642-WHO Document 66-1 Filed 01/19/18 Page 50 of 82

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-04642-WHO Document 66-1 Filed 01/19/18 Page 51 of 82

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-04642-WHO Document 66-1 Filed 01/19/18 Page 52 of 82

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-04642-WHO Document 66-1 Filed 01/19/18 Page 53 of 82

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-04642-WHO Document 66-1 Filed 01/19/18 Page 54 of 82

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-04642-WHO Document 66-1 Filed 01/19/18 Page 55 of 82

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-04642-WHO Document 66-1 Filed 01/19/18 Page 56 of 82

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-04642-WHO Document 66-1 Filed 01/19/18 Page 57 of 82

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-04642-WHO Document 66-1 Filed 01/19/18 Page 58 of 82

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-04642-WHO Document 66-1 Filed 01/19/18 Page 59 of 82

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-04642-WHO Document 66-1 Filed 01/19/18 Page 60 of 82

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-04642-WHO Document 66-1 Filed 01/19/18 Page 61 of 82

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-04642-WHO Document 66-1 Filed 01/19/18 Page 62 of 82
Exhibit F

Case 3:17-cv-04642-WHO Document 66-1 Filed 01/19/18 Page 63 of 82

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-04642-WHO Document 66-1 Filed 01/19/18 Page 64 of 82

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-04642-WHO Document 66-1 Filed 01/19/18 Page 65 of 82

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-04642-WHO Document 66-1 Filed 01/19/18 Page 66 of 82

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-04642-WHO Document 66-1 Filed 01/19/18 Page 67 of 82

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-04642-WHO Document 66-1 Filed 01/19/18 Page 68 of 82

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-04642-WHO Document 66-1 Filed 01/19/18 Page 69 of 82

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-04642-WHO Document 66-1 Filed 01/19/18 Page 70 of 82

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-04642-WHO Document 66-1 Filed 01/19/18 Page 71 of 82

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-04642-WHO Document 66-1 Filed 01/19/18 Page 72 of 82

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-04642-WHO Document 66-1 Filed 01/19/18 Page 73 of 82

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-04642-WHO Document 66-1 Filed 01/19/18 Page 74 of 82

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-04642-WHO Document 66-1 Filed 01/19/18 Page 75 of 82

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-04642-WHO Document 66-1 Filed 01/19/18 Page 76 of 82

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-04642-WHO Document 66-1 Filed 01/19/18 Page 77 of 82

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-04642-WHO Document 66-1 Filed 01/19/18 Page 78 of 82

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)

Case 3:17-cv-04642-WHO Document 66-1 Filed 01/19/18 Page 79 of 82

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)

Case 3:17-cv-04642-WHO Document 66-1 Filed 01/19/18 Page 80 of 82

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)

Case 3:17-cv-04642-WHO Document 66-1 Filed 01/19/18 Page 81 of 82

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)

Case 3:17-cv-04642-WHO Document 66-1 Filed 01/19/18 Page 82 of 82

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)

 
 Case 3:17-cv-04642-WHO Document 67 Filed 02/02/18 Page 1 of 36

1 DENNIS J. HERRERA, State Bar #139669 City Attorney

2 JESSE C. SMITH, State Bar #122517

Chief Assistant City Attorney

3 RONALD P. FLYNN, State Bar #184186 Chief Deputy City Attorney

4 YVONNE R. MERÉ, State Bar #173594 Chief of Complex and Affirmative Litigation

5 CHRISTINE VAN AKEN, State Bar #241755

TARA M. STEELEY, State Bar #231775

6 MOLLIE M. LEE, State Bar #251404 SARA J. EISENBERG, State Bar #269303

7 AILEEN M. McGRATH, State Bar #280846 Deputy City Attorneys

8 City Hall, Room 234

1 Dr. Carlton B. Goodlett Place

9 San Francisco, California 94102-4602 Telephone: (415) 554-4748

10 Facsimile: (415) 554-4715

E-Mail:

brittany.feitelberg@sfcityatty.org

11

Attorneys for Plaintiff

12 CITY AND COUNTY OF SAN FRANCISCO

13

14

UNITED STATES DISTRICT COURT

15

NORTHERN DISTRICT OF CALIFORNIA

16

CITY AND COUNTY OF SAN

Case No. 3:17-CV-04642-WHO

17 FRANCISCO,

PLAINTIFF CITY AND COUNTY OF SAN

18

Plaintiff,

FRANCISCO’S OPPOSITION TO

DEFENDANTS’ NOTICE OF MOTION AND

19

vs.

MOTION TO DISMISS

20 JEFFERSON B. SESSIONS III, Attorney

Judge:

General of the United States, ALAN R.

Hearing Date:

21 HANSON, Acting Assist. Attorney General of Time:

the United States, UNITED STATES

Place:

22 DEPARTMENT OF JUSTICE, DOES 1-100,

Trial Date:

23

Defendants.

Honorable William H. Orrick February 28, 2018 2:00 p.m. Courtroom 2, 17th Floor
December 10, 2018

24

25

26

27

28
CCSF’s Oppo. to Defs. Motion to Dismiss; Case No. 3:17-CV-04642-WHO

n:\cxlit\li2018\180160\01250851.docx

Case 3:17-cv-04642-WHO Document 67 Filed 02/02/18 Page 2 of 36

1

TABLE OF CONTENTS

2 TABLE OF AUTHORITIES ......................................................................................................... iii

3 INTRODUCTION ...........................................................................................................................1
BACKGROUND .............................................................................................................................2 4
I. San Francisco’s Sanctuary City Laws......................................................................2

5

II. The Byrne JAG Program .........................................................................................2

6

A. The Byrne JAG Program Is A Formula Grant For Criminal Justice

Funding. .......................................................................................................2 7
B. DOJ Announces New Requirements For Byrne JAG Funding. ..................3

8 ARGUMENT ...................................................................................................................................5

9

I. San Francisco Is Entitled To A Declaration Concerning Compliance With

Section 1373.............................................................................................................5 10
A. San Francisco’s Declaratory Relief Claim Is Justiciable. ............................5

11

1. This Court Has Already Determined San Francisco’s

12

Claim Is Justiciable. .........................................................................6

13

2. Recent Developments Bolster The Justiciability Of San Francisco’s Claim. ....................................................................7

14

B. San Francisco’s Sanctuary City Laws Comply With Section 1373...........11

15

1. Defendants’ Interpretation Of Section 1373 Is Overbroad

And Infirm. ....................................................................................11

16

2. Chapter 12H Does Not Prohibit Sharing Of Immigration Status. .15

17

3. Chapter 12I Does Not Prohibit Sharing Of Immigration Status. ...18

18

II. The Notice, Access, And Section 1373 Requirements Are Unconstitutional........18

19

A. The Newly Announced Requirements Violate The Separation Of

Powers: Congress Has Not Authorized The Attorney General To

20

Impose Them. ............................................................................................19

21

1. Section 10102(a) Is Not A Grant Of Any Authority......................19

2. Even If Section 10102 Was A Grant Of Authority,

22

It Would Not Permit The Attorney General To Impose The

23

Newly Announced Requirements. .................................................21

3. The Formula Grant Structure Of Byrne JAG Confirms That

24

The Attorney General Is Not Authorized To Impose New

25

Substantive Requirements..............................................................22

B. The Newly Announced Requirements Violate The Spending Clause:

26

Even Congress Could Not Constitutionally Impose Them........................24

27

1. The Requirements Are Ambiguous. ..............................................24

28

CCSF’s Oppo. to Defs. Motion to Dismiss;

i

Case No. 3:17-CV-04642-WHO

n:\cxlit\li2018\180160\01250851.docx

Case 3:17-cv-04642-WHO Document 67 Filed 02/02/18 Page 3 of 36

2. The Requirements Are Not Reasonably Related To

1

The Byrne JAG Program’s Purpose...............................................26

2

3. The Notice and Access Requirements Attempt To Induce

Local Governments To Act Unconstitutionally. ............................27 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

CCSF’s Oppo. to Defs. Motion to Dismiss;

ii

Case No. 3:17-CV-04642-WHO

n:\cxlit\li2018\180160\01250851.docx

Case 3:17-cv-04642-WHO Document 67 Filed 02/02/18 Page 4 of 36

1

TABLE OF AUTHORITIES

2 Federal Cases

3 Abbott Labs. v. Gardner 4 387 U.S. 136 (1967).....................................................................................................................6
5 Aetna Life Ins. Co. v. Haworth 300 U.S. 227 (1937).....................................................................................................................6
6 Air Transp. Ass'n of Am. v. City & Cty. of San Francisco
7 992 F. Supp. 1149 (N.D. Cal. 1998) ..........................................................................................15

8 Arizona v. United States 567 U.S. 387 (2012)...................................................................................................................27
9

10

Arlington Cent. Sch. Dist. Bd. of Educ. v. Murphy 548 U.S. 291 (2006)...................................................................................................................24

11 Badaracco v. Commissioner
12 464 U.S. 386 (1984)...................................................................................................................15

13 Benning v. Georgia 391 F.3d 1299 (11th Cir. 2004) .................................................................................................24
14

15

Blount v. Rizzi 400 U.S. 410 (1971)...................................................................................................................15

16 Bond v. United States 17 134 S. Ct. 2077 (2014)...............................................................................................................12

18 Charles v. Verhagen 348 F.3d 601 (7th Cir. 2003) .....................................................................................................24
19 City of Chicago v. Sessions
20 No. 17C5720, 2017 WL 5499167 (N.D. Ill. Nov. 16, 2017).....................................................10
21 City of Chicago v. Sessions 22 264 F. Supp. 3d 933 (N.D. Ill. 2017) ...................................................................................20, 21

23 City of Los Angeles v. McLaughlin 865 F.2d 1084 (9th Cir. 1989) ...................................................................................................22
24 City of Philadelphia v. Sessions
25 No. CV 17-3894, 2017 WL 5489476 (E.D. Pa. Nov. 15, 2017)................................................27
26 Colwell v. Dep’t of Health and Human Servs. 27 558 F.3d 1112 (9th Cir. 2009) .....................................................................................................6

28

CCSF’s Oppo. to Defs. Motion to Dismiss;

iii

Case No. 3:17-CV-04642-WHO

n:\cxlit\li2018\180160\01250851.docx

Case 3:17-cv-04642-WHO Document 67 Filed 02/02/18 Page 5 of 36

Commc'ns Workers of Am. v. Am. Tel. & Tel. Co. 1 40 F.3d 426 (D.C.Cir.1994) .......................................................................................................11
2 Danner v. Int’l Freight Sys. of Washington, LLC 3 855 F. Supp. 2d 433 (D. Md. 2012) ...........................................................................................14

4 F.A.A. v. Cooper 566 U.S. 284 (2012)...................................................................................................................21
5 Goldman v. Salisbury (In re Goldman)
6 70 F.3d 1028 (9th Cir. 1995) .....................................................................................................16
7 Griffin v. Oceanic Contractors, Inc. 8 458 U.S. 564 (1982)...................................................................................................................23
9 Huffman v. C.I.R. 978 F.2d 1139 (9th Cir. 1992) ...................................................................................................21
10 Ind. Towers of Washington v. Washington
11 350 F.3d 925 (9th Cir. 2003) .....................................................................................................19
12 Lopez-Valenzuela v. Arpaio 13 770 F.3d 772 (9th Cir. 2014) .....................................................................................................27
14 Massachusetts v. U.S. 35 U.S. 444 (1978).....................................................................................................................26
15 McCarthy v. Madigan
16 503 U.S. 140 (1992)...................................................................................................................10

17 Medtronic, Inc. v. Lohr 18 518 U.S. 470 (1996)...................................................................................................................13
19 Morales v. Trans World Airlines, Inc. 504 U.S. 374 (1992)...................................................................................................................14
20 Morales v. Chadbourne
21 793 F.3d 208 (1st Cir. 2015)......................................................................................................28

22 Nat’l Fed’n of Indep. Bus. v. Sebelius 567 U.S. 519 (2012).............................................................................................................24, 26
23

24

Newton v. Am. Debt Servs., Inc. 75 F. Supp. 3d 1048 (N.D. Cal. 2014) .................................................................................19, 25

25 New York v. U.S.
26 505 U.S. 144 (1992)...................................................................................................................26

27 N.Y. State Conference of Blue Cross & Blue Shield Plans v. Travelers Ins. Co. 514 U.S. 645 (1995)...................................................................................................................12
28

CCSF’s Oppo. to Defs. Motion to Dismiss;

iv

Case No. 3:17-CV-04642-WHO

n:\cxlit\li2018\180160\01250851.docx

Case 3:17-cv-04642-WHO Document 67 Filed 02/02/18 Page 6 of 36

Organized Village of Kake v. U.S. Dep’t of Agric. 1 795 F.3d 956 (9th Cir. 2015) .......................................................................................................9
2 Pennhurst State Sch. and Hosp. v. Halderman 3 451 U.S. 1 (1981).......................................................................................................................24

4 RadLAX Gateway Hotel, LLC v. Amalgamated Bank 132 S. Ct. 2065 (2012)...............................................................................................................16
5 Rice v. Santa Fe Elevator Corp.
6 331 U.S. 218 (1947)...................................................................................................................12
7 Roach v. Mail Handlers Ben. Plan 8 298 F.3d 847 (9th Cir. 2002) .....................................................................................................12
9 San Francisco v. Trump 250 F. Supp. 3d 497 (N.D. Cal. 2017) ............................................................................6, 18, 19
10 San Francisco v. Trump
11 267 F. Supp. 3d 1201 (N.D. Cal. 2017) .....................................................................2, 5, 6, 7, 28
12 San Francisco v. Trump 13 No. 17-cv-00485, 2017 WL 5569835 (N.D. Cal. 2017) ..............................................................8
14 S. Dakota v. Dole 483 U.S. 203 (1987).............................................................................................................24, 27
15 Steinle v. City and Cty. of San Francisco
16 230 F. Supp. 3d 994 (N.D. Cal. 2017) .................................................................................12, 15

17 Stewart v. Ragland 18 934 F.2d 1033 (9th Cir. 1991) ...................................................................................................17
19 Sunbelt Rentals, Inc. v. Victor No. C 13-4240 SBA, 2014 WL 492364 (N.D. Cal. Feb. 5, 2014).............................................19
20 Susan B. Anthony List v. Driehaus
21 134 S. Ct. 2334 (2014).................................................................................................................6

22 Texas v. United States 523 U.S. 296 (1998).................................................................................................................6, 9
23

24

Thomas v. Anchorage Equal Rights Comm’n 220 F.3d 1134 (9th Cir. 2000) .....................................................................................................6

25 Traverso v. People ex rel. Dep’t of Trans.
26 46 Cal. App. 4th 1197 (1996) ....................................................................................................17

27 United States v. Morrison 529 U.S. 598 (2000)...................................................................................................................13
28

CCSF’s Oppo. to Defs. Motion to Dismiss;

v

Case No. 3:17-CV-04642-WHO

n:\cxlit\li2018\180160\01250851.docx

Case 3:17-cv-04642-WHO Document 67 Filed 02/02/18 Page 7 of 36

Vasquez v. New York City Dep’t of Educ. 1 No. 11-CV-3674 (AJN), 2015 WL 3619432 (S.D.N.Y. June 10, 2015) ...................................19
2 Constitutional Provisions 3 U.S. Const. 4 art. I, § 8, cl. 1 ............................................................................................................................18 5 Federal Statutes

6 8 U.S.C. § 1367(2)....................................................................................................................................13
7 § 1373 ................................................................................................................................ passim § 1373(a) ................................................................................................................................4, 13
8 § 1373(b)................................................................................................................................4, 13
9 20 U.S.C. 10 § 10006(b)..................................................................................................................................22

11 34 U.S.C.

§ 10102 ..........................................................................................................................19, 20, 21 12 § 10102(a) ............................................................................................................................19, 20

13

§ 10102(a)(1) .............................................................................................................................20 § 10102(a)(2) .............................................................................................................................20

14 § 10102(a)(3) .............................................................................................................................20 § 10102(a)(6) .............................................................................................................................20

15 §§ 10151-10158 .........................................................................................................................19

§ 10152(a)(1)(A)–(H) ......................................................................................................3, 23, 27 16 § 10153(a) ..................................................................................................................................23

17

§ 10153(a)(2) ...............................................................................................................................3 § 10153(a)(4) ...............................................................................................................................3

18 § 10153(a)(5)(A)–(C) ..................................................................................................................3 § 10153(a)(5)(D)....................................................................................................................3, 19

19 § 10156(a) ..................................................................................................................................23

§ 10156(d)..............................................................................................................................3, 23 20 § 10156(d)(2)(A)....................................................................................................................3, 23

21

§ 10157(b)..................................................................................................................................23 § 10171 ......................................................................................................................................22

22 § 10191 ......................................................................................................................................22

23 42 U.S.C. § 3712 ........................................................................................................................................21
24 Regulations
25
2 C.F.R. 26 § 200.207 ...................................................................................................................................22
27 § 2800.101 .................................................................................................................................22

28

CCSF’s Oppo. to Defs. Motion to Dismiss;

vi

Case No. 3:17-CV-04642-WHO

n:\cxlit\li2018\180160\01250851.docx

Case 3:17-cv-04642-WHO Document 67 Filed 02/02/18 Page 8 of 36

28 C.F.R. 1 § 18.5(a)-(b) ...............................................................................................................................10
2 § 66.12 (removed Dec. 25, 2014) ..............................................................................................21 § 66.12 (a) ..................................................................................................................................22
3 § 66.12(b)...................................................................................................................................22 § 66.12(c) ...................................................................................................................................22
4 State Cases
5
People v. Brannon 6 32 Cal. App. 3d 971 (1973) .......................................................................................................17

7 San Francisco Taxpayers Assn. v. Bd. of Supervisors 8 2 Cal. 4th 571 (1992) .................................................................................................................16
9 State Statutes and Codes

10 S.F. Admin. Code Chapter 12H ....................................................................................................................... passim

11 Chapter 12I ........................................................................................................................ passim

§ 12H.2.......................................................................................................................................16 12 § 12.I.1 .......................................................................................................................................13

13

§ 12I.2 ........................................................................................................................................16 § 12I.3 ..........................................................................................................................................2

14 § 12I.3 (e)...................................................................................................................................18 § 12I.5 ........................................................................................................................................18

15 Legislative Materials

16

Ending Sanctuary Cities Act of 2016 17 H.R. 6252, 114th Cong. (2016) .................................................................................................15

18 H.R. Rep. 109-233 .........................................................................................................................27

19 Stop Dangerous Sanctuary Cities Act 20 H.R. 5654, 114th Cong. (2016) .................................................................................................15

21 Stop Dangerous Sanctuary Cities Act S. 3100, 114th Cong. (2016)......................................................................................................15
22 Other References
23 Federal Grant Practice
24 § 25.10 .......................................................................................................................................22
25 Some Reflections on the Reading of Statutes, 47 Colum. L. Rev. 527, 537 (1947).......................21
26 The Federal Government’s Authority to Impose Conditions on Grant Funds, 27 Congressional Research Service (Mar. 23, 2017)......................................................................23

28

CCSF’s Oppo. to Defs. Motion to Dismiss;

vii

Case No. 3:17-CV-04642-WHO

n:\cxlit\li2018\180160\01250851.docx

Case 3:17-cv-04642-WHO Document 67 Filed 02/02/18 Page 9 of 36

1

INTRODUCTION

2

Over the past year, the Trump administration has made eliminating sanctuary cities one of the

3 hallmarks of its policy agenda. And it has pursued this goal not only from the bully pulpit but also

4 through executive fiat without regard for the constitutional limits that constrain government action.

5 First, just days after taking office, President Trump signed an executive order that directed the

6 Attorney General and Secretary of Homeland Security to withdraw all federal funds from sanctuary

7 jurisdictions. Despite last-minute efforts by the Attorney General to narrowly interpret the order, this

8 Court declared that order unconstitutional. Taking a different tactic, the Department of Justice

9 (“DOJ”) announced the imposition of new requirements on the receipt of Byrne JAG federal grants.

10 But the requirements—which seek to interfere with local jurisdictions’ considered policy judgments

11 about what makes their communities safer by conditioning the receipt of important criminal justice

12 funds on an agreement to assist with federal immigration enforcement—are unconstitutional as well.

13

The requirements violate separation of powers principles because Congress did not authorize

14 the Attorney General to impose substantive conditions on Byrne JAG funds. And even if he did have

15 the power to impose some conditions on the grant, these specific requirements would run afoul of

16 constitutional limits on the Spending Clause power by imposing ambiguous and unrelated conditions

17 on the receipt of grant funds. In short, the Attorney General has taken for himself powers that

18 Congress did not—and indeed could not—delegate to him. His request to dismiss San Francisco’s

19 claims regarding these violations should be denied. See Part II, infra.

20

San Francisco has also stated a valid claim for declaratory relief concerning one of the newly

21 added requirements—i.e., that jurisdictions complete a Certificate of Compliance with Section 1373.

22 Section 1373 prohibits state and local governments from restricting communications “regarding an

23 individual’s . . . citizenship or immigration status.” The Attorney General has endorsed a reading of

24 this phrase that stretches the statutory text beyond its breaking point, arguing that the word

25 “regarding” expands the reach of this provision to cover any information that assists ICE. But this

26 exceedingly overbroad interpretation is not supportable, and should be rejected along with Defendants’

27 challenge to the merits of San Francisco’s third cause of action. See Part I(B), infra. Nor should San

28 Francisco’s claim be dismissed as non-justiciable. This Court has already concluded that San

CCSF’s Oppo. to Defs. Motion to Dismiss;

1

Case No. 3:17-CV-04642-WHO

n:\cxlit\li2018\180160\01250851.docx

Case 3:17-cv-04642-WHO Document 67 Filed 02/02/18 Page 10 of 36

1 Francisco’s claim for declaratory relief regarding Section 1373 satisfies Article III’s demands. See

2 San Francisco v. Trump, 267 F. Supp. 3d 1201, 1218 (N.D. Cal. 2017). Defendants offer no reason

3 for this Court to revisit its determination. If anything, recent developments—including DOJ’s

4 statement at a hearing before this Court that jurisdictions will be expected to certify compliance with

5 the federal government’s interpretation of Section 1373—underscore the existence of an actual and

6 immediate controversy. See Part I(A), infra.

7

BACKGROUND

8 I. San Francisco’s Sanctuary City Laws.

9

San Francisco has been a Sanctuary City since 1989, when it enacted ordinances (“Sanctuary

10 City Laws”) in response to a wave of refugees fleeing violence in their home countries. First

11 Amended Complaint (Dkt. No. 61) (“FAC”) ¶ 29. San Francisco’s current Sanctuary City Laws,

12 codified in Chapters 12H and 12I of the Administrative Code, continue to reflect San Francisco’s

13 commitment to ensure the public safety and welfare, while declining to use municipal resources to

14 enforce federal immigration laws. Chapter 12H prohibits San Francisco departments, agencies,

15 commissions, officers, and employees from using San Francisco funds or resources to assist in the

16 enforcement of federal immigration law or to gather or disseminate information regarding the release

17 status, or other confidential identifying information, of an individual unless such assistance is required

18 by federal or state law. Chapter 12I prohibits San Francisco law enforcement officials from detaining

19 an individual who is otherwise eligible for release from custody on the basis of a civil detainer request

20 issued by the federal government, without a finding of probable cause by a judicial officer. Further,

21 unless the individual involved meets certain criteria, Chapter 12I prohibits San Francisco law

22 enforcement officials from responding to a federal immigration officer’s request for advance

23 notification of the date and time an individual in San Francisco’s custody is being released. See S.F.

24 Admin. Code § 12I.3. These provisions do not prohibit, or in any way restrict, San Francisco

25 employees from communicating with ICE about an individual’s citizenship or immigration status.

26 II. The Byrne JAG Program

27

A. The Byrne JAG Program Is A Formula Grant For Criminal Justice Funding.

28

The Byrne JAG program is “the leading source of federal justice funding to state and local

CCSF’s Oppo. to Defs. Motion to Dismiss;

2

Case No. 3:17-CV-04642-WHO

n:\cxlit\li2018\180160\01250851.docx

Case 3:17-cv-04642-WHO Document 67 Filed 02/02/18 Page 11 of 36

1 jurisdictions.” Office of Justice Programs, Welcome to BJA’s Edward Byrne Memorial Assistance

2 Grant (JAG) Program. The program provides states and local governments with “critical funding

3 necessary to support a range of program areas including law enforcement, prosecution, indigent

4 defense, courts, crime prevention and education, corrections and community corrections, drug

5 treatment and enforcement, . . . crime victim and witness initiatives and mental health programs.” Id.

6

The Byrne JAG program is structured as a formula grant, awarding funds to all eligible

7 grantees according to a prescribed metric. The Bureau of Justice Assistance—a department within the

8 Office of Justice Programs (“OJP”)—awards funds to all eligible grantees in amounts derived from a

9 mandatory statutory formula. See 34 U.S.C. § 10156(d)(2)(A) (providing that the Attorney General

10 “shall allocate to each unit of local government” funds consistent with the established formula)

11 (emphasis added). The formula for state allocations is a function of population and violent crime. Id.

12 § 10156(d). For local governments, the allocation is a function of the state’s allocation and the ratio of

13 violent crime in the locality to violent crime in the state. Id. Award recipients are entitled to their

14 share of the formula allocation as long as their proposed programs satisfy one of eight statutory 15 purpose areas,1 and certain other administrative requirements. See 34 U.S.C. § 10153(a)(2) &

16 (a)(5)(A)–(C) (requiring applicants to supply information about their intended use of funding); id. §

17 10153(a)(4) (requiring information demonstrating financial integrity); id. § 10153(a)(5)(D) (permitting

18 the Attorney General to require localities to certify they “will comply with all provisions of this part

19 and all other applicable Federal laws”). Immigration is not one of the listed purposes.

20

B. DOJ Announces New Requirements For Byrne JAG Funding.

21

In August 2017, OJP posted the State and Local Solicitations for the FY 2017 Byrne JAG

22 grants. FAC Exhs. B & D. The Solicitations included three new requirements.

23

The first requirement concerns 8 U.S.C. Section 1373 (“Section 1373”), which prohibits state

24 and local governments from restricting their officials from sending to, or receiving from, the

25 Immigration and Naturalization Service information regarding an individual’s citizenship or

26 1 The eight purpose areas are: (1) law enforcement, (2) prosecution and courts, (3) prevention
27 and education, (4) corrections and community corrections, (5) drug treatment, (6) planning, evaluation, and technology improvement, (7) crime victim and witness programs, and (8) mental health programs.
28 42 U.S.C. § 10152(a)(1)(A)–(H).

CCSF’s Oppo. to Defs. Motion to Dismiss;

3

Case No. 3:17-CV-04642-WHO

n:\cxlit\li2018\180160\01250851.docx

Case 3:17-cv-04642-WHO Document 67 Filed 02/02/18 Page 12 of 36

1 immigration status. The Solicitations stated that jurisdictions would be required to complete a

2 Certificate of Compliance (“Section 1373 Certification”). The Section 1373 Certification requires the

3 applicant’s Chief Legal Officer—in San Francisco’s case, City Attorney Dennis J. Herrera—to certify

4 under penalty of perjury that he or she has carefully reviewed Section 1373, and has conducted—or

5 caused to be conducted—a “diligent inquiry and review,” and that with respect to the “program or

6 activity” funded with Byrne JAG dollars, San Francisco does not have in effect or purport to have in

7 effect, and is not subject to or bound by

8

“any prohibition or any restriction . . . that deals with either (1) a government

entity or –official sending or receiving information regarding citizenship or

9

immigration status as described in 8 U.S.C. § 1373(a); or (2) a government

entity or –agency sending to, requesting or receiving from, maintaining, or

10

exchanging information of the types (and with respect to the entities) described

in 8 U.S.C. § 1373(b)” (“Section 1373 Requirement”).

11

12 FAC Exh. B at 38.2

13

The Solicitations also included two other requirements related to federal immigration

14 enforcement. The “Access Requirement” demands that San Francisco provide federal immigration

15 officials unfettered access to local detention facilities to interrogate any suspected aliens held there.

16 Id. at 30. The “Notice Requirement” directs San Francisco to “provide at least 48 hours’ advance

17 notice to DHS regarding the scheduled release date and time of an alien in the jurisdiction’s custody

18 when DHS requests such notice in order to take custody of the alien pursuant to the Immigration and

19 Nationality Act.” Id.

20

On September 5, 2017, the City submitted its application for its FY 2017 Local Byrne JAG

21 allocation. FAC ¶ 127. Along with the application, San Francisco submitted a disclaimer noting its

22 legal challenge to the Access and Notice Requirements and confirming that it will not comply with

23 those Requirements. Id. Although San Francisco has not received a Byrne JAG award document at 24 this time,3 DOJ has issued award documents to two other jurisdictions. Id. ¶¶ 102-103. Those award

25

2 The Section 1373 Certification is not the only time that jurisdictions will be required to assure

26

DOJ that they comply with Section 1373. Each time that San Francisco wants to draw-down funds from its Byrne JAG award, it must again certify compliance with Section 1373. FAC ¶ 82.

27

3 DOJ has represented that it is not issuing award letters until the Seventh Circuit Court of

Appeals rules in Chicago v. Sessions, No. 17-2991. That case is fully briefed and the Seventh Circuit

28 heard argument on January 19, 2018.

CCSF’s Oppo. to Defs. Motion to Dismiss;

4

Case No. 3:17-CV-04642-WHO

n:\cxlit\li2018\180160\01250851.docx

Case 3:17-cv-04642-WHO Document 67 Filed 02/02/18 Page 13 of 36

1 documents contain DOJ’s description of the Notice and Access Requirements, and DOJ has asserted

2 that these are the final award conditions and that it will describe the Notice and Access Requirements

3 the same way in any future award documents. Id. ¶¶103-104. Notably, the Access and Notification

4 Requirements in the award documents DOJ referenced differ from DOJ’s earlier statements. For jail

5 access, DOJ describes the Requirement as mandating that recipients have in place a “local ordinance, -

6 rule, -regulation, -policy, or –practice . . . that is designed to ensure that agents of the United States . . .

7 are given access [to] a local-government . . . correctional facility” to meet with individuals believed to

8 be aliens and question them. Defendants’ Request for Judicial Notice (Dkt. No. 66-1), Exh. E at 19.

9 For advance notification, recipients must have in place a “local ordinance, -rule, -regulation, -policy,

10 or –practice . . . that is designed to ensure that, when a local-government . . . correctional facility

11 receives from DHS a formal written request . . . [for] advance notice of the scheduled release date and

12 time for a particular alien in such facility, then such facility will honor such request and—as early as

13 practicable . . . provide the requested notice to DHS.” Id.

14

ARGUMENT

15 I. San Francisco Is Entitled To A Declaration Concerning Compliance With Section 1373.

16

Defendants argue that San Francisco’s first cause of action for declaratory relief concerning its

17 compliance with Section 1373 should be dismissed because (A) it is non-justiciable (Defendants’

18 Notice of Motion and Motion to Dismiss (Dkt. No. 66) (“Mot.”) at 11-15) and (B) San Francisco

19 Administrative Code Chapters 12H and 12I conflict with Section 1373 (id. at 15-20). Defendants are

20 wrong on both counts.

21

A. San Francisco’s Declaratory Relief Claim Is Justiciable.

22

This Court has already concluded that San Francisco’s claim for declaratory relief regarding

23 Section 1373 satisfies Article III’s demands and is thus justiciable. San Francisco v. Trump, 267 F.

24 Supp. 3d at 1218. In so holding, the Court disapproved Defendants’ arguments that declaratory relief

25 is not proper because Defendants have not “deprived [San Francisco] or threatened to deprive it of any

26 federal funds.” Defs.’ Mot. to Dismiss, San Francisco v. Trump, No. 17-485, Dkt. No. 111, at 12.

27 The Court should reject these rehashed arguments here as well. Defendants point to nothing that

28 diminishes the justiciability of San Francisco’s request for declaratory relief. To the contrary, recent

CCSF’s Oppo. to Defs. Motion to Dismiss;

5

Case No. 3:17-CV-04642-WHO

n:\cxlit\li2018\180160\01250851.docx

Case 3:17-cv-04642-WHO Document 67 Filed 02/02/18 Page 14 of 36

1 developments have only heightened and crystallized Defendants’ threats regarding San Francisco’s

2 compliance with Section 1373.

3

Indeed, Defendants’ attempt to again forestall review of this issue is startling, given that they

4 previously urged this Court to resolve San Francisco’s claim regarding Section 1373 in this very case.

5 See Opp. to Plfs. Mot. for Summary Judgement, San Francisco v. Trump, et al., No. 17-485, (Dkt. No.

6 172) at 9 (characterizing San Francisco v. Sessions as presenting a “concrete dispute regarding the

7 implementation of actual [OJP] grants,” and arguing that “[i]t is in the context of such a dispute that

8 questions like [San Francisco’s Section 1373 declaratory relief claim] should be addressed”). For all

9 of these reasons, the Court should deny Defendants’ request to dismiss San Francisco’s declaratory

10 relief claim as non-justiciable.

11

1. This Court Has Already Determined San Francisco’s Claim Is Justiciable.

12

As the Court recognized, the relevant Article III question regarding declaratory relief is

13 whether the claim involves an “actual controversy.” San Francisco v. Trump, 267 F. Supp. 3d at 1216

14 (quoting Aetna Life Ins. Co. v. Haworth, 300 U.S. 227, 240 (1937)). More precisely, “the question in

15 each case is whether the facts alleged, under all the circumstances, show that there is a substantial

16 controversy, between parties having adverse legal interests, of sufficient immediacy and reality to

17 warrant the issuance of a declaratory judgment.” Id. (internal quotation marks omitted).4

18

Defendants’ recycled argument that San Francisco’s declaratory relief claim is unripe because

19 “USDOJ has not denied the plaintiff any grant funds based on its ordinances” (Mot. at 2), is flatly

20 inconsistent with this authority. As the Court has already held, events that transpired last spring and

21

22

4 Although the Court’s Article III discussion in Trump concerned standing to bring a claim for

declaratory relief, “[s]tanding and ripeness under Article III are closely related.” Colwell v. Dep’t of

23 Health and Human Servs., 558 F.3d 1112, 1123 (9th Cir. 2009). To the extent Defendants frame their

present argument in terms of ripeness (Mot. at 12), the Court’s earlier decision in Trump is no less

24 relevant. See Thomas v. Anchorage Equal Rights Comm’n, 220 F.3d 1134, 1138 (9th Cir. 2000)

(holding that the “constitutional component of the ripeness inquiry is often treated under the rubric of

25 standing”). In any case, while Defendants purport to argue constitutional ripeness alone (Mot. at 12

n.5), the cases they discuss involve what Defendants characterize as “mere[] ‘prudential ripeness.’”

26 Id. at 12; see also Abbott Labs. v. Gardner, 387 U.S. 136, 148-49 (1967); Texas v. United States, 523

U.S. 296, 300 (1998). But “[t]he Supreme Court has . . . question[ed] ‘the continuing vitality of the

27 prudential ripeness doctrine.’” San Francisco v. Trump, 250 F. Supp. 3d 497, 529 (N.D. Cal. 2017)

(quoting Susan B. Anthony List v. Driehaus, 134 S. Ct. 2334, 2347 (2014)). Defendants disclaim any

28 argument that prudential ripeness is not satisfied here. Mot. at 12 n.5.

CCSF’s Oppo. to Defs. Motion to Dismiss;

6

Case No. 3:17-CV-04642-WHO

n:\cxlit\li2018\180160\01250851.docx

Case 3:17-cv-04642-WHO Document 67 Filed 02/02/18 Page 15 of 36

1 summer were sufficient to show “a real and immediate controversy between San Francisco and the

2 federal government regarding whether San Francisco complies with section 1373.” San Francisco v.

3 Trump, 267 F. Supp. 3d at 1216. In March 2017, the Attorney General singled out San Francisco and

4 its “sanctuary policies” when urging jurisdictions to comply with Section 1373 or face consequences.

5 Request for Judicial Notice (“RJN”), Exh. A. He indicated that DOJ would soon take steps to ensure

6 that these jurisdictions complied with Section 1373. Id. Similarly, in a subsequent speech to law

7 enforcement representatives, the Attorney General noted that “[s]ome 300 jurisdictions in this country

8 refuse to cooperate with federal immigration authorities,” and, that “politicians have forbidden [local

9 law enforcement] to help.” Id. Exh. B at 2. He specifically singled out San Francisco as one of the

10 jurisdictions that “have these policies.” Id.

11

The Court found these threats to amount to a “‘real and substantial’ dispute regarding whether

12 San Francisco complies with section 1373.” San Francisco v. Trump, 267 F. Supp. 3d at 1218.

13 Defendants do not—and could not—point to any recent developments that diminish those threats or

14 resolve the dispute. Indeed, recent developments only confirm that there is a significant and

15 immediate dispute between the parties regarding Section 1373.

16

2. Recent Developments Bolster The Justiciability Of San Francisco’s Claim.

17

First, in August 2017, Defendants announced that jurisdictions receiving Byrne JAG funds

18 would be required for the first time to execute the Section 1373 Certification. See pp. 3-4, supra.

19 Defendants curiously omit any discussion of the contents of the Section 1373 Certification, even

20 though that Certification is the centerpiece of San Francisco’s claim for declaratory relief. See FAC ¶¶

21 124-35. That Certification requires San Francisco’s Chief Legal Officer to certify under penalty of

22 perjury that there are no “prohibitions or restrictions potentially applicable to [any program or activity

23 funded with Byrne JAG dollars] . . . that deal with sending to, requesting or receiving from,

24 maintaining, or exchanging information of the types described in [Section 1373].” FAC Exh. B at 38.

25 And the City Attorney must acknowledge that a “materially false, fictitious, or fraudulent statement

26 (or concealment or omission of a material fact)” in the Certification will subject him to criminal

27 prosecution, and San Francisco to civil penalties or administrative remedies for false claims. Id.

28 Because of the breadth of this Certification—and to respond to the Court’s request to consider San

CCSF’s Oppo. to Defs. Motion to Dismiss;

7

Case No. 3:17-CV-04642-WHO

n:\cxlit\li2018\180160\01250851.docx

Case 3:17-cv-04642-WHO Document 67 Filed 02/02/18 Page 16 of 36

1 Francisco’s Section 1373 issues in the context of a particular grant application, San Francisco v.

2 Trump, No. 17-cv-00485, 2017 WL 5569835, at *1 n. 1 (N.D. Cal. 2017)—San Francisco framed its

3 request for declaratory relief in relation to the Section 1373 Certification. See FAC ¶¶ 166-76.

4

The Section 1373 Certification belies Defendants’ characterization of San Francisco’s claim

5 for declaratory relief. Defendants suggest that San Francisco faces no harm related to Section 1373

6 unless and until “OJP determines whether Chapter 12H or 12I violates Section 1373.” Mot. at 13. But

7 San Francisco does not have the luxury to await Defendants’ “initial determination” on this matter. Id.

8 The Section 1373 Certification requires that San Francisco understand now what Section 1373 means.

9

This is particularly true given that Defendants have made clear that the City Attorney’s

10 execution of the Certification will amount to an endorsement of Defendants’ views on Section 1373.

11 Defendants made this shocking assertion at a hearing before this Court, in the wake of questions

12 regarding whether a jurisdiction can “certify that it’s in compliance with 1373” based on its own

13 “good-faith belief that you’re in compliance with 1373.” California v. Sessions, No. 17-4701, Hr’g Tr.

14 at 14:8-14 (Dec. 13, 2017). Counsel for Defendants stated that “the Government is expecting that the

15 State, if they certify compliance, will be agreeing to the Government’s interpretation on the issues that

16 we’ve raised to them.” Id. at 29:16-19.

17

In light of Defendants’ representation, San Francisco may be unable to sign the Section 1373

18 Certification without further guidance from this Court. San Francisco cannot sign, under penalty of

19 perjury, a document certifying compliance with the federal government’s “interpretation” of Section

20 1373, because the City does not comply with that overbroad reading of the law. Accordingly, the 21 Section 1373 Certification only heightens the existing immediate dispute between the parties.5

22

Second, OJP has sent two letters to San Francisco expressing its “concerns” that certain “San

23 Francisco laws, policies, or practices may violate section 1373.” FAC Exh. A; RJN Ex. C. OJP sent

24 5 Because San Francisco seeks a declaration that it complies with the terms of the Section 1373
25 Certification, Defendants are wrong to argue that San Francisco lacks standing to seek declaratory relief regarding its policies implementing Chapters 12H and 12I. Mot. at 13-14. San Francisco’s
26 claim for declaratory relief tracks the language of the Section 1373 Certification. See, e.g., FAC ¶¶ 169-171. The Certification asks whether the departments administering Byrne JAG-funded
27 programs have in place any “restriction or prohibition” on the sharing of immigration-status information with ICE. The Certification thus puts not only those departments’ laws but also their
28 policies at issue.

CCSF’s Oppo. to Defs. Motion to Dismiss;

8

Case No. 3:17-CV-04642-WHO

n:\cxlit\li2018\180160\01250851.docx

Case 3:17-cv-04642-WHO Document 67 Filed 02/02/18 Page 17 of 36

1 the first letter to San Francisco on November 15, 2017. FAC Exh. A. Then, five days after the filing

2 of Defendants’ Motion to Dismiss, OJP sent a further communication to San Francisco on January 24,

3 2018. RJN Ex. C.

4

These letters confirm the existence of a real controversy between San Francisco and

5 Defendants regarding Section 1373. The November 15 letter identifies San Francisco’s Sanctuary

6 City Laws as potentially violating Section 1373. FAC Exh. A. Those laws form the foundation of San

7 Francisco’s declaratory relief claim. And the January 24, 2018 letter reiterates those same “concerns,”

8 notwithstanding San Francisco’s response confirming that its laws fully comply with Section 1373.

9 RJN Ex. C; FAC Exh. C. In addition, the January 24 letter made clear that OJP’s concerns are not

10 limited to San Francisco’s laws, but also concern San Francisco’s “policies, or practices.” RJN Ex.

11 Cat 1. Thus, the letter requests that San Francisco produce “[a]ll documents reflecting any orders,

12 directives, instructions, or guidance to your law enforcement employees . . . whether formal or

13 informal . . . regarding whether and how those employees may, or may not, communicate with [DOJ],

14 the Department of Homeland Security, and/or [ICE].” Id. at 2. In addition, the letter included

15 additional threats that were not clear in the November 15 letter: OJP stated in the January 24 letter that

16 “[s]hould the Department determine your jurisdiction is out of compliance with section 1373, the

17 Department may . . . seek return of your FY 2016 grant funds, require additional conditions for receipt

18 of any FY 2017 Byrne JAG funding for which you have applied, and/or deem you ineligible for FY

19 2017 Byrne JAG funds.” Id. These letters, together, confirm that there is an escalating controversy

20 between Defendants and San Francisco regarding whether San Francisco complies with Section 1373.

21 And the January 24 letter refutes Defendants’ claim that San Francisco’s policies and its

22 implementation of those policies are not at issue. Mot. at 13-14. The letters together clearly threaten a

23 “loss of [Byrne JAG] funds promised under federal law,” thus “satisf[ying] Article III’s standing

24 requirement.” Organized Village of Kake v. U.S. Dep’t of Agric., 795 F.3d 956, 965 (9th Cir. 2015).

25

Defendants’ reasons for discounting these letters are not convincing. Contrary to Defendants’

26 representations, the letters do not show that San Francisco’s declaratory relief claim “rests upon

27 contingent future events that may not occur as anticipated.” Id. at 13 (quoting Texas, 523 U.S. at 300).

28 Defendants suggest in their Motion that they have not firmly concluded that San Francisco’s laws

CCSF’s Oppo. to Defs. Motion to Dismiss;

9

Case No. 3:17-CV-04642-WHO

n:\cxlit\li2018\180160\01250851.docx

Case 3:17-cv-04642-WHO Document 67 Filed 02/02/18 Page 18 of 36

1 violate Section 1373, and that OJP may change its mind in the course of performing an evaluation. Id.

2 But that intimation is belied by DOJ’s own statements establishing that the “review” process, which

3 OJP is performing with respect to dozens of other jurisdictions, is designed to coerce jurisdictions to

4 change their policies—not to lead Defendants to change their mind about Section 1373’s reach. In a

5 statement accompanying a wave of letters sent to other jurisdictions, the Attorney General stated that

6 the purpose of this “preliminary review” is to “urge [these] jurisdictions . . . to reconsider their policies

7 that undermine the safety of their residents.” RJN Exh. D at 2. And in those letters, OJP made clear

8 that its purportedly “preliminary” determination regarding non-compliance will change only if

9 jurisdictions can convince OJP that their laws do not in fact mean what they say. See, e.g., RJN Exh.

10 E at 2 (asking the City of New York to “certify that it interprets and applies” a law prohibiting

11 employees from “notifying federal authorities of [a] person’s release” does not in fact restrict New

12 York employees from sharing information “regarding the date and time of an alien’s release from

13 custody”). Because San Francisco is not prepared to change its laws to require sharing the vast swaths

14 of information Defendants claim Section 1373 covers (see pp. 11-12, infra), there is little chance OJP 15 will suddenly reconsider its initial assessment of San Francisco’s Section 1373 compliance.6

16

Defendants are also wrong to suggest that these letters are part of an administrative process that

17 the Court should not interrupt. Neither of the letters appear to begin any sort of formal administrative

18 process. See 28 C.F.R. § 18.5(a)-(b) (referring to administrative hearings). San Francisco cannot be

19 relegated to an undefined, amorphous, and illusory administrative process. And even if DOJ were

20 following a defined administrative process, it would not affect the justiciability of San Francisco’s

21 declaratory relief claim before this Court. As the Supreme Court has made clear, certain factors

22 “weigh heavily against requiring administrative exhaustion” before seeking judicial relief. McCarthy

23 v. Madigan, 503 U.S. 140, 146 (1992). Exhaustion is unnecessary if there is (1) “an indefinite

24 [administrative] timeframe,” (2) “undue prejudice” to the plaintiff in the form of “irreparable harm if

25 6 The decision in City of Chicago v. Sessions, No. 17C5720, 2017 WL 5499167 (N.D. Ill. Nov.
26 16, 2017), is not to the contrary. Mot. at 13. As the decision itself notes, “Chicago did not request a declaration of compliance with Section 1373 in its Motion for a Preliminary Injunction.” 2017 WL
27 5499167 at *3. For that reason, the Chicago court declined to “inject[] this issue into the case” on a motion for reconsideration. Id. The Chicago court’s further discussion of the relevance of OJP’s
28 letter to Chicago is dicta.

CCSF’s Oppo. to Defs. Motion to Dismiss;

10

Case No. 3:17-CV-04642-WHO

n:\cxlit\li2018\180160\01250851.docx

Case 3:17-cv-04642-WHO Document 67 Filed 02/02/18 Page 19 of 36

1 unable to secure immediate judicial consideration,” or (3) the agency hearing officer lacks

2 “institutional competence” to determine “the constitutionality of a statute.” Id. at 147–48; see also

3 Commc'ns Workers of Am. v. Am. Tel. & Tel. Co., 40 F.3d 426, 432 (D.C.Cir.1994) (exhaustion

4 unnecessary “when resort to administrative remedies [would be] ‘clearly useless.’”).

5

Such is the case here. OJP has articulated no timeframe by which it will resolve its inquiry into

6 San Francisco’s Section 1373 compliance. San Francisco will soon be presented with the Section

7 1373 Certification, which the City Attorney may be unable to sign without Court guidance—a

8 circumstance that will render San Francisco ineligible for grant funds. And the purported

9 administrative process does not afford San Francisco any avenue for challenging Defendants’

10 overbroad interpretation of Section 1373.

11

In short, Defendants offer no reason for this Court to revisit its determination that San

12 Francisco’s declaratory relief claim is justiciable.

13

B. San Francisco’s Sanctuary City Laws Comply With Section 1373.

14

Defendants’ primary argument is that Chapters 12H and 12I violate Section 1373 because they

15 prohibit San Francisco employees from sharing information other than immigration status—e.g., an

16 individual’s address, contact information, and release date—with federal officials. San Francisco

17 concedes that its laws generally prohibit sharing of this information, but vigorously disputes that this

18 violates federal law. Defendants’ argument to the contrary rests on an overbroad, untenable, and

19 unconstitutional interpretation of Section 1373. See Part I(B)(1), infra. Defendants also argue that

20 12H and 12I violate Section 1373 because they prohibit the sharing of immigration status with federal

21 officials. They do not. See Part I(B)(2)-(3), infra.

22

1. Defendants’ Interpretation Of Section 1373 Is Overbroad And Infirm.

23

Under Section 1373, state and local governments cannot prohibit or restrict their employees

24 from sharing with federal immigration officials “information regarding [an individual’s] citizenship or

25 immigration status.” The crux of the dispute between the parties turns on the proper interpretation of

26 this phrase. Defendants contend that the word “regarding” expands the reach of this provision to cover

27 an exceedingly broad swath of information, including—at a minimum—address, contact information

28 and (for individuals in custody) release date. Notably, Defendants have never defined precisely how

CCSF’s Oppo. to Defs. Motion to Dismiss;

11

Case No. 3:17-CV-04642-WHO

n:\cxlit\li2018\180160\01250851.docx

Case 3:17-cv-04642-WHO Document 67 Filed 02/02/18 Page 20 of 36

1 the phrase should be understood or placed any limits on their broad interpretation. To the contrary,

2 they have stated that “information regarding immigration status” includes all information that

3 “facilitates taking an alien into custody for lawful removal proceedings” (Mot. at 16) and—even more

4 broadly—any “information that allows [ICE] to do its job.” California v. Sessions, No. 17-4701, Hr’g

5 Tr. at 30:9-10 (Dec. 13, 2017). As this Court previously noted, read this broadly, the phrase could

6 cover “everything in a person’s life.” Id. at 23:1-2. It could extend the reach of Section 1373 to public

7 school students’ records or employee personnel files—and potentially even to information covered by

8 independent confidentiality laws, like confidential health records.

9

The word “regarding” cannot bear this great weight. Indeed, Supreme Court and Ninth Circuit

10 precedent foreclose such a broad interpretation of the term.7 In Roach v. Mail Handlers Ben. Plan,

11 298 F.3d 847 (9th Cir. 2002), the Ninth Circuit addressed the meaning of the term “relate to,” which

12 Defendants agree is “closely analogous” to “regarding.” Mot. at 16. Roach turned on the proper

13 interpretation of the preemption provision of the Federal Employees Health Benefits Act, which states

14 that the terms of a contract under that act “which relate to the nature, provision, or extent of coverage

15 or benefits” supersede and preempt any state or local law “which relates to health insurance or plans.”

16 298 F.3d at 849. The Ninth Circuit stated: “[I]n the context of a similarly worded preemption

17 provision in the Employee Retirement Income Security Act (ERISA), the Supreme Court has

18 explained that the words ‘relate to’ cannot be taken too literally.” Id. The court went on to explain:

19

“If ‘relate to’ were taken to extend to the furthest stretch of its indeterminacy, then for all practical purposes pre-emption would never run its course, for

20

‘really, universally, relations stop nowhere.’” N.Y. State Conference of Blue Cross & Blue Shield Plans v. Travelers Ins. Co., 514 U.S. 645, 655 (1995)

21

(quoting H. James, Roderick Hudson xli (New York ed., World’s Classics 1980)). Instead, “relates to” must be read in the context of the presumption that

22

in fields of traditional state regulation “the historic police powers of the States [are] not to be superseded by [a] Federal Act unless that was the clear and

23

manifest purpose of Congress.” Id. at 655 (quoting Rice v. Santa Fe Elevator Corp., 331 U.S. 218, 230 (1947)).

24 Id. at 849-50. Cf. Bond v. United States, 134 S. Ct. 2077, 2089 (2014) (“[I]t is incumbent on the

25 federal courts to be certain of Congress’ intent before finding that federal law overrides the usual

26 7 In addition, another court in this District has rejected the argument that Section 1373 is broad
27 enough to encompass even release date, concluding that “no plausible reading of ‘information regarding . . . citizenship or immigration status’ encompasses the release date of an undocumented
28 inmate.” Steinle v. City and Cty. of San Francisco, 230 F. Supp. 3d 994, 1015 (N.D. Cal. 2017).

CCSF’s Oppo. to Defs. Motion to Dismiss;

12

Case No. 3:17-CV-04642-WHO

n:\cxlit\li2018\180160\01250851.docx

Case 3:17-cv-04642-WHO Document 67 Filed 02/02/18 Page 21 of 36

1 constitutional balance of federal and state powers.”) (internal quotation marks omitted).

2

Here, too, “regarding” should not be understood to “extend to the furthest stretch of its

3 indeterminacy.” Chapters 12H and 12I reflect San Francisco’s considered judgment that limiting local

4 involvement in federal immigration enforcement promotes public health, safety, and welfare. S.F.

5 Admin. Code § 12.I.1. These traditional matters of local concern lie at the heart of a state’s police

6 power. See, e.g., United States v. Morrison, 529 U.S. 598, 618 (2000); Medtronic, Inc. v. Lohr, 518

7 U.S. 470, 475 (1996). And even Defendants do not contend that Section 1373 clearly and

8 unambiguously applies to contact information and release date. Nor could they. When Congress

9 wants to draft legislation that applies broadly to information about undocumented individuals, it

10 knows how to do so. See 8 U.S.C. § 1367(2) (prohibiting the disclosure of “any information which

11 relates to an alien who is the beneficiary of an application for relief under [specific provisions] of the

12 Immigration and Nationality Act”). It did not do so here. The language Congress chose to use is—at

13 most—ambiguous. See California v. Sessions, No. 17-4701, Hr’g Tr. at 30:2-4 (Dec. 13, 2017) (“MR.

14 READLER: Sure. Well, obviously, Congress chose a broad phrase. It could have said ‘just

15 immigration status.’ THE COURT: Or maybe an ambiguous phrase.”).

16

Accordingly, Section 1373 cannot be construed in such a manner as to supersede San

17 Francisco’s exercise of its core police powers. Rather, “information regarding . . . citizenship or

18 immigration status” should be interpreted to include only immigration status information in the

19 possession of local governments. This would include, for example, an individual’s immigration or

20 visa status, an individual’s self-report about immigration status, or a third party’s statement about an

21 individual’s immigration status. This type of information is not official immigration status, but it is

22 information “regarding” immigration status.

23

This interpretation is confirmed by the contrast between Section 1373(a) and (b), which refer to

24 information “regarding . . . immigration status,” and subsection (c), which uses the different phrase

25 “[immigration] status information.” Defendants argue that this difference supports their broad reading

26 of “regarding.” Mot. at 16. But in fact this difference reflects the unique and paramount role of the

27 federal government with respect to immigration status information. Section 1373 subsections (a) and

28 (b) are directed at information in the possession of state and local governments, which are not

CCSF’s Oppo. to Defs. Motion to Dismiss;

13

Case No. 3:17-CV-04642-WHO

n:\cxlit\li2018\180160\01250851.docx

Case 3:17-cv-04642-WHO Document 67 Filed 02/02/18 Page 22 of 36

1 empowered to make immigration status determinations and cannot vouch for the accuracy of

2 citizenship and immigration status that may be in their possession. For this reason, immigration status

3 information held by state and local governments will always be “regarding … immigration status”

4 (like a self-report of immigration status), rather than a definitive statement of immigration status. In

5 contrast, subsection (c) applies to information maintained by federal immigration officials, who do

6 know individuals’ actual citizenship immigration status and can therefore provide that information,

7 with no qualifiers necessary.

8

Defendants make three additional arguments in support of their contrary position that

9 “information regarding . . . citizenship or immigration status” includes far more—i.e., anything ICE

10 needs to do its job. None has merit.

11

First, Defendants rely on the Supreme Court’s decision in Morales v. Trans World Airlines,

12 Inc., 504 U.S. 374 (1992). Mot. at 16. But the case does not justify the exceedingly broad

13 interpretation of “regarding” urged by Defendants. In Morales, several airlines filed a suit alleging

14 that the Texas Attorney General’s attempt to enforce guidelines concerning airline fare advertising was

15 preempted by the Airline Deregulation Act, which prohibits states from enforcing any law “relating to

16 rates, routes, or services” of any air carrier. 504 U.S. at 378-80. In concluding that the phrase was

17 broad enough to cover airline fare advertisement guidelines, the Court noted that the ordinary meaning

18 of the term “relating to” is a “broad one” (id. at 383)—but the Court then cautioned:

19

In concluding that the NAAG fare advertising guidelines are pre-empted, we do

not, as Texas contends, set out on a road that leads to pre-emption of state laws

20

against gambling and prostitution as applied to airlines. Nor need we address

whether state regulation of the nonprice aspects of fare advertising (for

21

example, state laws preventing obscene depictions) would similarly “relat[e] to”

rates; the connection would obviously be far more tenuous. To adapt to this case

22

our language in Shaw, “[s]ome state actions may affect [airline fares] in too

tenuous, remote, or peripheral a manner” to have pre-emptive effect.

23

24 Id. at 390. And, indeed, since Morales, courts have upheld state and local laws against preemption

25 challenges, finding them too tenuous, remote or peripheral to be considered “relat[ed] to rates, routes,

26 or services.” See, e.g., Danner v. Int’l Freight Sys. of Washington, LLC, 855 F. Supp. 2d 433, 459 (D.

27 Md. 2012) (negligence causes of action with respect to the misplacement of the Cargo not preempted);

28 Air Transp. Ass'n of Am. v. City & Cty. of San Francisco, 992 F. Supp. 1149, 1183-88 (N.D. Cal.

CCSF’s Oppo. to Defs. Motion to Dismiss;

14

Case No. 3:17-CV-04642-WHO

n:\cxlit\li2018\180160\01250851.docx

Case 3:17-cv-04642-WHO Document 67 Filed 02/02/18 Page 23 of 36

1 1998), affd and remanded in part on other grounds, 266 F.3d 1064 (9th Cir. 2001) (San Francisco’s

2 Equal Benefits Ordinance not preempted).

3

Second, Defendants argue that the “breadth of Section 1373 is also reinforced by other

4 language that Congress used, such as making clear that no local policy could ‘in any way restrict’ the

5 sharing of such information . . . .” Mot. at 16-17. But this language has no bearing whatsoever on the

6 question of what information local governments cannot prohibit “or in any way restrict” their

7 employees from sharing.

8

Third, Defendants point out that the date and time of an undocumented inmate’s release from

9 custody is “critical information” because federal law concerning the detention of criminal aliens states

10 that federal officials must take custody of the individual “when the alien is released”—which the Ninth

11 Circuit has held to mean immediately upon release. Mot. at 18-19. San Francisco does not dispute

12 that release date information would be useful to ICE, but that has no bearing on the question presented

13 here—i.e., whether Congress chose to include it within the scope of Section 1373. As another court in

14 this District has found: “if the Congress that enacted [the Act] had intended . . . specifically to bar

15 restrictions of sharing inmates’ release dates, it could have included such language in the statute.”

16 Steinle v. City and Cty. of San Francisco, 230 F. Supp. 3d 994, 1015 (N.D. Cal. 2017). The fact that it

17 did not is perhaps an issue to take up with Congress, but this Court should not rewrite the statute to 18 facilitate ICE’s immigration enforcement activities.8 See Badaracco v. Commissioner, 464 U.S. 386,

19 398 (1984) (“Courts are not authorized to rewrite a statute because they might deem its effects

20 susceptible of improvement.”); Blount v. Rizzi, 400 U.S. 410, 419 (1971) (“[I]t is for Congress, not this

21 Court, to rewrite the statute.”).

22

2. Chapter 12H Does Not Prohibit Sharing Of Immigration Status.

23

Defendants’ secondary argument that Chapter 12H violates Section 1373 because it prohibits

24 employees from sharing immigration status with federal officials (Mot. at 18–19) fares no better.

25

26

8 Notably, Congress has repeatedly considered—and rejected—legislation that would allow

federal agencies to withhold grants from jurisdictions that decline to provide release dates to federal

27 immigration authorities. See, e.g., Ending Sanctuary Cities Act of 2016, H.R. 6252, 114th Cong.

(2016); Stop Dangerous Sanctuary Cities Act, S. 3100, 114th Cong. (2016); Stop Dangerous Sanctuary

28 Cities Act, H.R. 5654, 114th Cong. (2016). None of this legislation has been enacted.

CCSF’s Oppo. to Defs. Motion to Dismiss;

15

Case No. 3:17-CV-04642-WHO

n:\cxlit\li2018\180160\01250851.docx

Case 3:17-cv-04642-WHO Document 67 Filed 02/02/18 Page 24 of 36

1 Chapter 12H is fully consistent with Section 1373.

2

Chapter 12H includes two related prohibitions and a savings clause. The “assistance”

3 provision restricts “us[ing] any City funds or resources to assist in the enforcement of Federal

4 immigration law.” S.F. Admin. Code § 12H.2. The “information” provision restricts using City funds

5 or resources to “gather or disseminate information regarding release status of individuals or any other

6 such personal information as defined in Chapter 12I.” Id. Finally, the savings clause exempts from

7 both provisions any assistance “required by Federal or State statute, regulation, or court decision.” Id.

8

Defendants’ argument that Chapter 12H violates Section 1373 fails for three independent

9 reasons. As an initial matter, Defendants’ 12H arguments focus on the “assistance” provision, but it is

10 the more specific “information” provision that governs the sharing of information with federal

11 immigration officials. “A specific provision relating to a particular subject will govern in respect to

12 that subject, as against a general provision, although the latter, standing alone, would be broad enough

13 to include the subject to which the more particular provision relates.” San Francisco Taxpayers Assn. 14 v. Bd. of Supervisors, 2 Cal. 4th 571, 577 (1992).9 And the “information” provision imposes no

15 restriction on sharing immigration status with ICE. It restricts the sharing of “personal information.”

16 But “personal information” is defined to mean “any confidential, identifying information about an

17 individual, including, but not limited to, home or work contact information, and family emergency

18 contact information.” S.F. Admin. Code § 12I.2. This does not include information about a person’s

19 immigration status, which cannot be used to identify or contact an individual. Thus, responding to

20 Defendants’ hypothetical, Chapter 12H does not “prevent an employee from using her office telephone

21 to call federal authorities to report on an individual’s immigration status.” Mot. at 18.

22

23

9 Federal courts are “bound by California rules of construction in [their] independent

interpretation of the California statutes at issue.” Goldman v. Salisbury (In re Goldman), 70 F.3d

24 1028, 1029 (9th Cir. 1995). And while Defendants have argued in the past that this specific canon of

statutory construction does not apply because of the disjunctive “or” between the two clauses, meaning

25 they can operate independently (see Opp. to Plfs. Mot. for Summary Judgement, San Francisco v.

Trump, et al., No. 17-485, (Dkt. No. 172) at 14 n.4), that argument is unavailing. RadLAX Gateway

26 Hotel, LLC v. Amalgamated Bank, 132 S. Ct. 2065, 2072 (2012) (“We know of no authority for the

proposition that the canon is confined to situations in which the entirety of the specific provision is a

27 “subset” of the general one. When the conduct at issue falls within the scope of both provisions, the

specific presumptively governs, whether or not the specific provision also applies to some conduct that

28 falls outside the general.”).

CCSF’s Oppo. to Defs. Motion to Dismiss;

16

Case No. 3:17-CV-04642-WHO

n:\cxlit\li2018\180160\01250851.docx

Case 3:17-cv-04642-WHO Document 67 Filed 02/02/18 Page 25 of 36

1

The second reason Defendants’ argument fails is that the City amended Chapter 12H

2 specifically to delete a prior restriction against sharing immigration status information. See RJN Exh.

3 F. The “information” provision previously prohibited sharing information about “immigration status,”

4 but the City amended that prohibition in July 2016 to delete the reference to “immigration status” and

5 replace it with “release status and other such personal information.” “When legislators delete

6 language, we may assume that they intended to eliminate the effect of the previous wording.” See

7 Stewart v. Ragland, 934 F.2d 1033, 1037 n.6 (9th Cir. 1991). Put differently, “[t]he sweep of [a]

8 statute should not be enlarged by insertion of language which the Legislature has overtly left out.”

9 Traverso v. People ex rel. Dep’t of Trans., 46 Cal. App. 4th 1197, 1207 (1996) (quoting People v.

10 Brannon, 32 Cal. App. 3d 971, 977 (1973)). Construing Chapter 12H to prohibit sharing immigration

11 status information would run afoul of this rule. The Court should reject Defendants’ attempts to

12 reinsert that deleted language to create a conflict with federal law where none otherwise exists.

13

Finally, Chapter 12H’s savings clause expressly requires compliance with federal law, thereby

14 avoiding any possible conflict between Chapter 12H and Section 1373. Defendants contend that this

15 savings clause is ambiguous and “overshadowed by the rest of Chapter 12H.” Mot. at 19-20. But

16 Defendants strain to find ambiguity where none exists. Indeed, the Justice Department’s Office of

17 Inspector General found it to be sufficiently clear and approved this precise language in a 2007 report

18 evaluating jurisdictions’ cooperation with ICE and compliance with Section 1373:

19

San Francisco has designated itself as a “City and County of Refuge” and has

limited the extent to which municipal agencies and employees may assist in

20

immigration enforcement. The City Administrative Code states that “no

department, agency, commission, officer or employee . . . shall use any City

21

funds or resources to assist in the enforcement of federal immigration law or to

gather or disseminate information regarding the immigration status of

22

individuals . . . unless such assistance is required by federal or state statute,

regulation or court decision.” The proviso requiring compliance with federal

23

law reinforces our view that there is insufficient evidence to conclude that San

Francisco fails to cooperate with ICE’s efforts to remove undocumented aliens.

24

25 RJN Exh. G at 24 (emphasis in original). The report went on to conclude that “in light of the specific

26 provisions requiring compliance with federal law, we cannot conclude that San Francisco’s policies

27 are contrary to 8 U.S.C. § 1373.” Id. at 26. This conclusion is correct.

28

CCSF’s Oppo. to Defs. Motion to Dismiss;

17

Case No. 3:17-CV-04642-WHO

n:\cxlit\li2018\180160\01250851.docx

Case 3:17-cv-04642-WHO Document 67 Filed 02/02/18 Page 26 of 36

1

3. Chapter 12I Does Not Prohibit Sharing Of Immigration Status.

2

Defendants make a half-hearted attempt to argue that Chapter 12I also prohibits sharing of

3 immigration status. Mot. at 17. It does not.

4

Chapter 12I prohibits law enforcement officials from “provid[ing] any individual’s personal

5 information to a federal immigration officer, on the basis of an administrative warrant, prior

6 deportation order, or other civil immigration document based solely on alleged violations of the civil

7 provisions of immigration laws.” S.F. Admin. Code § 12I.3 (e). As explained above, however,

8 “personal information” does not include immigration status. See p. 16, supra. Thus, this subsection

9 does not restrict local officials from sharing immigration status information with federal officials.

10 Defendants’ contrary assertion—that “personal information is defined so broadly [that] a San

11 Francisco officer would risk disciplinary action any time he or she shared information regarding

12 immigration status, rendering the ordinance in square violation of Section 1373” (Mot. at 17)—is pure

13 conjecture, with no support in the record or in the plain text of Chapter 12I. To the contrary, San

14 Francisco has affirmatively informed all employees about their rights under Section 1373, and

15 explained that Chapters 12H and 12I impose other types of restrictions, which are consistent with

16 federal law. FAC ¶ 41; RJN Exh. H.

17

Defendants also point out that Section 12I.5 requires the Sheriff and Juvenile Probation Officer

18 to provide semi-annual reports to the Board of Supervisors that include, among other things, “a

19 description of any communications” made to federal immigration authorities. Mot. at 17. And

20 Defendants contend, without evidence, that this reporting requirement discourages local officers from

21 sharing immigration status information with federal authorities. But this is nothing more than a run-

22 of- the-mill reporting requirement—typical in federal, state, and local law—that gives policymakers

23 information about how laws are implemented. It certainly does not constitute a prohibition on sharing

24 immigration status with federal officials. Indeed, nothing in Chapter 12I sets forth such a prohibition.

25 II. The Notice, Access, And Section 1373 Requirements Are Unconstitutional.

26

The Constitution grants Congress federal spending power, including the power to impose

27 conditions on federal funds. See U.S. Const. art. I, § 8, cl. 1. “Congress can delegate some discretion

28 to the President to decide how to spend appropriated funds” (San Francisco v. Trump, 250 F. Supp. 3d

CCSF’s Oppo. to Defs. Motion to Dismiss;

18

Case No. 3:17-CV-04642-WHO

n:\cxlit\li2018\180160\01250851.docx

Case 3:17-cv-04642-WHO Document 67 Filed 02/02/18 Page 27 of 36

1 497, 531 (N.D. Cal. 2017)), but it must exert that power through statute. Moreover, even Congress’

2 spending power is not unlimited—it is cabined by constitutional boundaries requiring any funding

3 condition to be unambiguous, relate to Congress’s purpose in authorizing the funds, and not compel

4 local governments to engage in unconstitutional conduct. Here, no statute authorizes the Attorney

5 General to impose the newly announced Requirements on Byrne JAG funds. And the newly added

6 Requirements violate these constitutional limitations.

7

In other word, Congress (A) did not—and (B) could not—authorize the Attorney General to

8 impose any of the newly announced Requirements. Accordingly, San Francisco’s second and third

9 causes of action have merit and should not be dismissed.

10

A. The Newly Announced Requirements Violate The Separation Of Powers:

Congress Has Not Authorized The Attorney General To Impose Them.

11

12

Defendants rely solely on 34 U.S.C. § 10102 (“Section 10102”) to support their assertion that

13 Congress authorized the Attorney General to impose the Notice, Access, and Section 1373 14 Requirements. Mot. at 20-22.10 This reliance is misplaced. Section 10102 does contain language

15 referring to the Assistant Attorney General’s (“AAG”) exercise of various powers, including “placing

16 special conditions on all grants.” But Section 10102’s text and structure make clear that this provision

17 cannot bear the great weight Defendants place upon it. Moreover, Congress’s decision to structure the

18 Byrne JAG program as a formula grant confirms that Congress did not vest the Attorney General with

19 authority to invent and impose new substantive requirements for grant recipients. Accordingly,

20 Defendants’ request to dismiss Count Two of San Francisco’s Complaint should be denied.

21

1. Section 10102(a) Is Not A Grant Of Any Authority.

22

The language on which Defendants rely appears in a statutory provision describing the powers

23 10 Defendants do not argue that the Byrne JAG statute (34 U.S.C. §§ 10151-10158) authorizes
24 the Attorney General to impose the Notice and Access Requirements. Nor do they contend that the Section 1373 Requirement is permissible based on 34 U.S.C. Section 10153(a)(5)(D), which permits
25 the Attorney General to require that localities certify they “will comply with all provisions of this part and all other applicable Federal laws.” Accordingly, Defendants have waived these arguments for
26 purposes of this motion. See, e.g., Newton v. Am. Debt Servs., Inc., 75 F. Supp. 3d 1048, 1063–64 (N.D. Cal. 2014); Sunbelt Rentals, Inc. v. Victor, No. C 13-4240 SBA, 2014 WL 492364, at *9 n.7
27 (N.D. Cal. Feb. 5, 2014); see also, e.g., Ind. Towers of Washington v. Washington, 350 F.3d 925, 929 (9th Cir. 2003); Vasquez v. New York City Dep’t of Educ., No. 11-CV-3674 (AJN), 2015 WL
28 3619432, at *14 (S.D.N.Y. June 10, 2015).

CCSF’s Oppo. to Defs. Motion to Dismiss;

19

Case No. 3:17-CV-04642-WHO

n:\cxlit\li2018\180160\01250851.docx

Case 3:17-cv-04642-WHO Document 67 Filed 02/02/18 Page 28 of 36

1 that the AAG overseeing OJP shall exercise. In total, Section 10102 (a) provides that the AAG shall

2 exercise certain “specific, general, and delegated powers”:

3

The Assistant Attorney General shall—

(1) publish and disseminate information on the conditions and progress

4

of the criminal justice systems;

5

(2) maintain liaison with the executive and judicial branches of the Federal and State governments in matters relating to criminal justice;

6

(3) provide information to the President, the Congress, the judiciary,

State and local governments, and the general public relating to criminal justice;

7

(4) maintain liaison with public and private educational and research

8

institutions, State and local governments, and governments of other nations relating to criminal justice;

9

(5) coordinate and provide staff support to coordinate the activities of

the Office and the Bureau of Justice Assistance, the National Institute of Justice,

10

the Bureau of Justice Statistics, the Office for Victims of Crime, and the Office

of Juvenile Justice and Delinquency prevention; and

11

(6) exercise such other powers and functions as may be vested in the

12

Assistant Attorney General pursuant to this chapter or by delegation of the Attorney General, including placing special conditions on all grants, and

13

determining priority purposes for formula grants.

14 34 U.S.C. § 10102 (a) (emphasis added).

15

Section 10102 (a)(6)’s reference to the AAG’s ability to place special conditions on grants is

16 not itself a grant of authority. Rather, the provision allows the AAG to exercise other powers “as may

17 be vested” in him or her through another source, namely, “pursuant to this chapter or by delegation of

18 the Attorney General.” Id. Some other statutory authority—authority that either directly runs to the

19 AAG, or which runs to the Attorney General and may then be delegated—must exist for the powers in

20 question. See City of Chicago v. Sessions, 264 F. Supp. 3d 933, 943 (N.D. Ill. 2017) (holding that the

21 use of the phrase “may be vested” indicates “that any authority of the Assistant Attorney General to

22 place special conditions on grants must flow either from the statute itself or from a delegation of

23 power independently possessed by the Attorney General”).

24

This much is clear when subsection (6) is viewed in comparison to the other enumerated

25 provisions in Section 10102. Each of the other references to the AAG’s powers is an express,

26 affirmative authorization and directive: The AAG shall “publish and disseminate information” (id.

27 § 10102(a)(1)); “maintain liaison with the executive and judicial branches” (id. § 10102(a)(2));

28 provide information to the President (id. § 10102(a)(3)); and so forth. None of the other enumerated

CCSF’s Oppo. to Defs. Motion to Dismiss;

20

Case No. 3:17-CV-04642-WHO

n:\cxlit\li2018\180160\01250851.docx

Case 3:17-cv-04642-WHO Document 67 Filed 02/02/18 Page 29 of 36

1 provisions use the “may be vested” language that subsection (6) does. This contrast illustrates that

2 subsection (6) is a catch-all provision that does not itself create any authority for the AAG, or the

3 Attorney General, to exercise. See City of Chicago, 264 F. Supp. 3d at 942–43.

4

2. Even If Section 10102 Was A Grant Of Authority, It Would Not Permit

The Attorney General To Impose The Newly Announced Requirements.

5

6

Even if Section 10102 did give the Attorney General some measure of authority, that authority

7 would still not allow the Attorney General to impose the Notice, Access, and Section 1373

8 Requirements, because they are not “special conditions” within the meaning of that provision.

9

“Special conditions” has a precise meaning that does not encompass the newly announced

10 Requirements. At the time Congress amended Section 10102—then codified as 42 U.S.C. Section

11 3712—the term “special conditions” had a specific meaning. According to a DOJ regulation in place

12 at the time, the agency could impose “special grant or subgrant conditions” on “high-risk grantees” if

13 the grant applicant: (a) had a history of poor performance; (b) was not financially stable; (c) had a

14 management system that did not meet certain federal standards; (d) had not conformed to the terms

15 and conditions of a previous grant award; or (e) was not otherwise responsible. 28 C.F.R. § 66.12

16 (removed Dec. 25, 2014). This language was based on the grants management common rule adopted

17 by the Office of Management and Budget (“OMB”), and followed by “all Federal agencies” when

18 administering grants to state and local governments. RJN Exh. I.

19

In such circumstances, when a phrase has been assigned a particular meaning, courts presume

20 that Congress was aware of—and intended to adopt—that established meaning. See F.A.A. v. Cooper,

21 566 U.S. 284, 292 (2012) (“It is a cardinal rule of statutory construction that when Congress employs a

22 term of art, it presumably knows and adopts the cluster of ideas that were attached to each borrowed

23 word in the body of learning from which it was taken.”) (internal quotation marks omitted); see also,

24 e.g., Huffman v. C.I.R., 978 F.2d 1139, 1145 (9th Cir. 1992) (“Words with a fixed legal or judicially

25 settled meaning, where the context so requires, must be presumed to have been used in that sense.”);

26 Felix Frankfurter, Some Reflections on the Reading of Statutes, 47 Colum. L. Rev. 527, 537

27 (1947) (“[I]f a word is obviously transplanted from another legal source, whether the common law or

28 other legislation, it brings the old soil with it.”).

CCSF’s Oppo. to Defs. Motion to Dismiss;

21

Case No. 3:17-CV-04642-WHO

n:\cxlit\li2018\180160\01250851.docx

Case 3:17-cv-04642-WHO Document 67 Filed 02/02/18 Page 30 of 36

1

Here, the newly added Requirements do not fall within the established meaning of “special

2 conditions.” True “special conditions” must be connected to the shortcoming that justifies their

3 inclusion in the first place, i.e., to some risk that the grant recipient will be financially unstable or

4 otherwise unable to put the grant funds to an appropriate use. See 28 C.F.R. § 66.12 (a). An agency

5 may impose those conditions only after following procedures designed to give notice to the grantee of

6 the reason for the conditions and the corrective action that must be taken. Id. § 66.12(c). And the

7 agency may impose only certain types of award conditions that will mitigate the risk that the recipient

8 will be unable to successfully use its grant funding. Id. § 66.12(b) (“Special conditions or restrictions

9 may include,” e.g., “additional project monitoring,” “requiring the grantee or subgrantee to obtain

10 technical or management assistance,” or “establishing additional prior approvals.”); see also Federal

11 Grant Practice § 25.10 (examples of special conditions include the requirement that the recipient

12 accept payment by reimbursement, or the requirement that the recipient allow for additional agency 13 oversight or reporting obligations).11 These conditions do not encompass broader requirements borne

14 from the Attorney General’s policy agenda, which are designed to coerce sanctuary cities to abandon

15 their considered policy judgments.

16

3. The Formula Grant Structure Of Byrne JAG Confirms That The Attorney

General Is Not Authorized To Impose New Substantive Requirements.

17

18

The Byrne JAG statute’s structure as a formula grant confirms that Congress did not intend the

19 Attorney General to invent and impose new, substantive requirements for grant recipients. Unlike

20 discretionary grants, which allow federal agencies to exercise discretion over the award of federal 21 funds,12 formula grants specify the amount of funding recipients receive under a statutorily prescribed

22 framework. See City of Los Angeles v. McLaughlin, 865 F.2d 1084, 1088 (9th Cir. 1989) (“In the

23

11 Although OMB has amended the regulations governing “special conditions” to now refer to

24

these conditions as “specific conditions,” the regulatory definition of those conditions and the circumstances in which they may be imposed remains largely unchanged. See 2 C.F.R. § 200.207

25

(OMB regulation defining “specific conditions”); 2 C.F.R. § 2800.101 (DOJ regulation adopting OMB definition of “specific conditions”).

26

12 See, e.g., 20 U.S.C. § 10006(b) (Department of Education grant program) (“The Secretary

shall determine which States receive grants under this section, and the amount of those grants, on the

27 basis of information provided in State applications . . . and such other criteria as the Secretary

determines appropriate . . . .”); 34 U.S.C. § 10171 (correctional options grant program); id. § 10191

28 (crime prevention campaign grant program).

CCSF’s Oppo. to Defs. Motion to Dismiss;

22

Case No. 3:17-CV-04642-WHO

n:\cxlit\li2018\180160\01250851.docx

Case 3:17-cv-04642-WHO Document 67 Filed 02/02/18 Page 31 of 36

1 formula grant program the authorizing Act of Congress determines who the recipients are and how

2 much money each shall receive.”); see also Brian T. Yeh, The Federal Government’s Authority to

3 Impose Conditions on Grant Funds, Congressional Research Service (Mar. 23, 2017), at 5-6

4 (describing the lack of agency discretion in formula grants).

5

The Byrne JAG program is structured precisely along these lines. The Attorney General is

6 directed to allocate specified portions of the Byrne JAG appropriation to the States and local

7 governments. 34 U.S.C. § 10156(a), (b) (providing that the Attorney General “shall” allocate

8 appropriated Byrne JAG funds to States and units of local governments according to the specified

9 formula). The formula also mandates the specific amount of funding each recipient is to receive,

10 based upon the locality’s population and rate of violent crime. 34 U.S.C. § 10156(a), (d).

11

Congress provided the Attorney General limited discretion to reserve certain portions of the

12 congressional appropriation to fulfill statutorily defined goals. See id. § 10157(b) (“Of the total

13 amount made available to carry out this part for a fiscal year, the Attorney General may reserve not

14 more than 5 percent, to be granted to 1 or more States or units of local government . . . pursuant to his

15 determination that the same is necessary” to address “extraordinary increases in crime” or “mitigate

16 significant programmatic harm . . . .”). But the Attorney General has no authority to withhold funding

17 from a jurisdiction or in any way adjust the amount of grant funding a state or local government is

18 entitled to receive under the formula. Instead, States and local governments are entitled to their share

19 of the Byrne JAG formula allocation as long as their proposed programs fall within the program’s

20 enumerated goals and their application is complete. See id. §§ 10152(a)(1)(A)-(H), 10153(a)).

21

The Attorney General’s assertion of unfettered discretion to impose grant conditions of his

22 choice—conditions untethered to any statutory obligation—is impossible to square with this grant

23 structure. Congress would not lay out a specific formula for allocating Byrne JAG funding while, at

24 the same time, giving the Attorney General the unspoken authority to override that formula by

25 attaching novel conditions to grant award documents and withholding appropriated federal funding

26 from jurisdictions that fail to satisfy his policy goals. See Griffin v. Oceanic Contractors, Inc., 458

27 U.S. 564, 575 (1982) (“[I]nterpretations of a statute which would produce absurd results are to be

28 avoided if alternative interpretations consistent with the legislative purpose are available.”).

CCSF’s Oppo. to Defs. Motion to Dismiss;

23

Case No. 3:17-CV-04642-WHO

n:\cxlit\li2018\180160\01250851.docx

Case 3:17-cv-04642-WHO Document 67 Filed 02/02/18 Page 32 of 36

B. The Newly Announced Requirements Violate The Spending Clause: Even

1

Congress Could Not Constitutionally Impose Them.

2

Even if the Attorney General had the power to impose substantive conditions on Byrne JAG

3 funds, he has violated the Constitution by imposing requirements that exceed constitutional limits on

4 the spending power. Congress’ spending power is not unlimited. S. Dakota v. Dole, 483 U.S. 203,

5 207 (1987). Rather, the Constitution provides that federal funding conditions must (1) be

6 unambiguous, (2) relate to Congress’s purpose in authorizing the funds, and (3) not compel local

7 governments to engage in unconstitutional conduct. Id. at 207-10. Because the Requirements violate

8 these limitations, they would be unconstitutional even if Congress had authorized them. Accordingly,

9 Defendants’ request to dismiss Count Three of San Francisco’s Complaint should be denied.

10

1. The Requirements Are Ambiguous.

11

The newly announced Requirements are unconstitutional because they violate the Spending

12 Clause’s prohibition on ambiguous funding conditions. “If Congress intends to impose a condition on

13 the grant of federal moneys, it must do so unambiguously.” Pennhurst State Sch. and Hosp. v.

14 Halderman, 451 U.S. 1, 17 (1981); see also Dole, 483 U.S. at 207. This is because “legislation

15 enacted pursuant to the spending power is much in the nature of a contract.” Pennhurst, 451 U.S. at

16 17. Congress’s exercise of the spending power in that “contract” is invalid unless “the State

17 voluntarily and knowingly accepts [its] terms.” Nat’l Fed’n of Indep. Bus. v. Sebelius, 567 U.S. 519,

18 577 (2012). Grant recipients “cannot knowingly accept conditions of which they are ‘unaware’ or

19 which they are ‘unable to ascertain.’” Arlington Cent. Sch. Dist. Bd. of Educ. v. Murphy, 548 U.S. 20 291, 296 (2006).13 As alleged in San Francisco’s Complaint, all of the new Requirements fail this test.

21

22

13 Defendants cite two cases for the proposition that uncertainty concerning the precise

meaning of the challenged conditions would not, in fact, render them unconstitutional. Mot. at 24.

23 But a closer reading of these authorities reveals that Defendants have taken the courts’ holdings out of

context. In both Charles v. Verhagen, 348 F.3d 601, 608 (7th Cir. 2003), and Benning v. Georgia, 391

24 F.3d 1299, 1306 (11th Cir. 2004), the court assessed the ambiguity of conditions placed on states in

the Religious Land Use and Institutionalized Persons Act (“RLUIPA”). The courts’ reasoning hinged

25 on the ability of states to retain some latitude and flexibility in the enforcement of RLUIPA’s “least

restrictive means” test. In this context, the Verhagen court held: “Congress cannot delineate every

26 instance in which a State may or may not comply with the least restrictive means test; it is simply

impossible to do. There are far too many circumstances affecting the States in different ways for

27 Congress to have envisioned all aspects of compliance and noncompliance.” 348 F.3d at 608. Here,

there is no corresponding need for the court to permit some amount of ambiguity in the imposition of

28 requirements. Thus, Defendants’ cited authorities are inapposite.

CCSF’s Oppo. to Defs. Motion to Dismiss;

24

Case No. 3:17-CV-04642-WHO

n:\cxlit\li2018\180160\01250851.docx

Case 3:17-cv-04642-WHO Document 67 Filed 02/02/18 Page 33 of 36

1

Defendants offer no argument whatsoever in defense of the Section 1373 Requirement.

2 Indeed, the section of their Motion concerning San Francisco’s ambiguity challenge does not even

3 mention Section 1373. See Mot. at 23–24. Accordingly, Defendants have conceded the point for

4 purposes of this motion. See, e.g., Newton v. Am. Debt Servs., Inc., 75 F. Supp. 3d 1048, 1063–64

5 (N.D. Cal. 2014); see also n.10, supra.14

6

And Defendants’ attempts to salvage the Notice and Access Requirements fall short.

7

The Notice Requirement as set forth in the Local Solicitation states that jurisdictions must give

8 ICE 48 hours’ advance notice of an inmate’s scheduled release date and time. FAC Exh. B at 30.

9 Nowhere does it explain whether notice must be given only when the scheduled release date and time

10 is known 48 hours in advance—which it may well not be—or whether jurisdictions must hold inmates

11 in custody for additional time to provide a full period of notice. In its Motion, Defendants point to

12 award documents issued to Greenville, South Carolina, and Binghamton, New York, in which DOJ

13 states that the Notice Requirement does not require a jurisdiction to detain individuals in custody

14 beyond their release date and requires “only as much advance notice as practicable.” Mot. at 24

15 (quoting Defs’ RJN Exhs. E & F). But this post-hoc retreat (even if it remains consistent in the award

16 documents ultimately issued to other jurisdictions) does not cure the Notice Requirement’s ambiguity.

17 It still leaves San Francisco uncertain about how much notice is “practicable” to provide. And DOJ’s

18 latest iteration of the Notice Requirement still refers to a “scheduled release date and time,” and fails

19 to acknowledge that inmates may at times be released with little or no notice. In these circumstances,

20 San Francisco would have no opportunity to provide DOJ with any advance notice. The Notice

21 Requirement does not suggest this would be sufficient.

22

Likewise, the Access Requirement is unclear on its face as to whether jurisdictions are required

23 to provide access to inmates in custody only when those individuals consent, or instead whether

24 jurisdictions are required to compel unwilling inmates to meet with ICE. Again, DOJ has attempted to

25 clarify this in litigation. In briefing opposing the City of Philadelphia’s similar request for injunctive

26

27

14 Nor could Defendants credibly argue that San Francisco has “clear notice” of what it must

do to comply, given that DOJ itself has offered several conflicting interpretations of what Section

28 1373 demands.

CCSF’s Oppo. to Defs. Motion to Dismiss;

25

Case No. 3:17-CV-04642-WHO

n:\cxlit\li2018\180160\01250851.docx

Case 3:17-cv-04642-WHO Document 67 Filed 02/02/18 Page 34 of 36

1 relief, DOJ claimed that Philadelphia “wishfully identifies a supposed ambiguity about whether the

2 [Access Requirement] requires allowing ICE agents access to visit an inmate even when the inmate

3 has told the facility that the inmate does not consent to an interview. The answer is yes. The

4 condition does require access in this scenario, even if the inmate might decline to answer questions.”

5 RJN Exh. J at 32. Even with DOJ’s qualification, the Access Requirement is still ambiguous

6 regarding what type of access San Francisco must provide. The Requirement does not identify any

7 limiting principle on the access that ICE agents must receive. For instance, must San Francisco allow

8 ICE agents to use a jail interview room to “access” an uncooperative inmate for as long as ICE

9 wishes? Can correctional facilities require immigration officials to comply with generally applicable

10 visitors’ restrictions, or must ICE agents be allowed unfettered access? The Access Requirement gives

11 no guidance on these or similar questions.

12

It is no response to argue—as Defendants do (see Mot. at 24)—that confused prospective

13 grantees can simply contact OJP with questions. An agency cannot save a constitutionally infirm

14 condition by setting up a hotline. Nor is it in any way relevant to the clarity—or lack thereof—of the

15 Notice and Access Requirements that San Francisco has not challenged other Byrne JAG requirements

16 as ambiguous. See id. San Francisco can choose to prioritize challenges to specific requirements for

17 various reasons. Here, the ambiguities are particularly egregious because they heighten the coercive

18 effect of the Requirements. Because the Requirements are susceptible of various interpretations—

19 some broader than others—San Francisco and jurisdictions may feel compelled to protect their

20 interests by complying with the broadest possible construction. The Spending Clause exists to protect

21 state and local governments from these coercive efforts. Sebelius, 567 U.S. at 577.

22

2. The Requirements Are Not Reasonably Related To The Byrne JAG

Program’s Purpose.

23

24

The Notice, Access, and Section 1373 Requirements also violate the Spending Clause for an

25 additional reason: they violate the basic requirement that conditions imposed on federal grants must be

26 “reasonably related to the purpose of the expenditure.” New York v. United States, 505 U.S. 144, 172

27 (1992); see also Massachusetts v. United States, 435 U.S. 444, 461 (1978) (holding that the “Federal

28

CCSF’s Oppo. to Defs. Motion to Dismiss;

26

Case No. 3:17-CV-04642-WHO

n:\cxlit\li2018\180160\01250851.docx

Case 3:17-cv-04642-WHO Document 67 Filed 02/02/18 Page 35 of 36

1 Government . . . may require that state instrumentalities comply with conditions that are reasonably

2 related to the federal interest in particular national projects or programs”).

3

Here, the Requirements are not reasonably related to Congress’ purpose in creating and

4 funding the Byrne JAG grant program. Congress’ purpose in creating the current Byrne JAG program

5 was to give state and local governments the ability “to use the grants constructively” to combat crime

6 and to further criminal justice policies related to one of the statutorily defined purpose areas. H.R.

7 Rep. 109-233, at 89. Congress made clear it did not seek to micromanage jurisdictions’ use of Byrne

8 JAG funds. To that end, Congress left local jurisdictions free to use Byrne JAG funds as they saw fit

9 as long as their programming related to one of eight purpose areas related to criminal justice. See p. 3,

10 supra; see also 34 U.S.C. § 10152(a)(1)(A)–(H). Not one of these purpose areas is related to federal

11 immigration enforcement. Indeed, the Notice, Access, and Section 1373 Requirements have no

12 relationship whatsoever to the purpose of the Byrne JAG program.

13

To try to invent a connection, the Attorney General has sought to draw a false connection

14 between federal civil immigration enforcement and criminal law. But the Supreme Court has made

15 clear that presence in this country without documentation is not a crime. See Arizona v. United States,

16 567 U.S. 387, 407 (2012) (“As a general rule, it is not a crime for a removable alien to remain present

17 in the United States.”); see also Lopez-Valenzuela v. Arpaio, 770 F.3d 772, 790 n. 15 (9th Cir. 2014).

18 That certain provisions of the Immigration and Nationality Act establishing grounds of deportability

19 for criminal offenses does not change the calculus since “[i]mmigration law has nothing to do with the

20 enforcement of local criminal laws.” City of Philadelphia v. Sessions, No. CV 17-3894, 2017 WL

21 5489476, at *48 (E.D. Pa. Nov. 15, 2017). Thus, there is no basis for the Attorney General to argue

22 that these new Requirements will further criminal justice goals.

23

3. The Notice and Access Requirements Attempt To Induce Local

Governments To Act Unconstitutionally.

24

25

Finally, the Notice and Access Requirements violate the constitutional directive that federal

26 funding conditions “may not be used to induce the States to engage in activities that would themselves

27 be unconstitutional.” Dole, 483 U.S. at 210. The Notice Requirement, as originally articulated,

28 required jurisdictions to give the federal government 48 hours’ advance notice of an inmate’s release

CCSF’s Oppo. to Defs. Motion to Dismiss;

27

Case No. 3:17-CV-04642-WHO

n:\cxlit\li2018\180160\01250851.docx

Case 3:17-cv-04642-WHO Document 67 Filed 02/02/18 Page 36 of 36

1 time. FAC Exh. B at 38. It thus operated as a back-door detainer request, effectively compelling

2 jurisdictions to hold inmates for a minimum of 48 hours, even if they would otherwise have been

3 released. The Access Requirement likewise threatens to delay an inmate’s release, in circumstances

4 where ICE’s access and subsequent interrogation prolong the inmate’s detention. As numerous courts

5 have recognized, such detentions violate the Fourth Amendment. See, e.g., Morales v. Chadbourne,

6 793 F.3d 208, 217–18 (1st Cir. 2015).

7

OJP’s purported revisions to the Notice Requirement do not remedy the problem. Although

8 Defendants now attempt to narrow that Requirement, there is no certainty that they will not revert to

9 the broader interpretation that appeared in the Local Solicitation. See San Francisco v. Trump, 267 F.

10 Supp. 3d at 1210–14 (rejecting an “illusory promise” to enforce an executive order more narrowly

11 than written). And even with Defendants’ qualifications, the Notice Requirement still refers to a

12 “scheduled release date and time,” and does not acknowledge that many inmates may be released with

13 little or no notice, leaving San Francisco unable to provide any notice whatsoever. In these

14 circumstances, San Francisco could still be forced to unconstitutionally delay an inmate’s release.

15

CONCLUSION

16

For the foregoing reasons, Defendants’ Motion to Dismiss should be denied.

17

18 Dated: February 2, 2018

19

DENNIS J. HERRERA

20

City Attorney

21

By: /s/ Sara J. Eisenberg

22

SARA J. EISENBERG

Deputy City Attorney

23 Attorneys for Plaintiff

24

CITY AND COUNTY OF SAN FRANCISCO

25

26

27

28

CCSF’s Oppo. to Defs. Motion to Dismiss;

28

Case No. 3:17-CV-04642-WHO

n:\cxlit\li2018\180160\01250851.docx

 
 Case 3:17-cv-04642-WHO Document 72 Filed 02/14/18 Page 1 of 20

1 CHAD A. READLER

2

Acting Assistant Attorney General ALEX G. TSE

3

Acting United States Attorney JOHN R. TYLER

4 Assistant Director

W. SCOTT SIMPSON (Va. Bar #27487)
5 Senior Trial Counsel

6

Department of Justice, Room 7210 Civil Division, Federal Programs Branch

7

20 Massachusetts Avenue, NW Washington, D.C. 20530

8 Telephone: (202) 514-3495

Facsimile: (202) 616-8470

9 E-mail:

scott.simpson@usdoj.gov

10 COUNSEL FOR DEFENDANTS 11 JEFFERSON B. SESSIONS III, Attorney
General of the United States; ALAN R.
12 HANSON, Principal Deputy Assistant Attorney 13 General; and U.S. DEPARTMENT OF JUSTICE

14

IN THE UNITED STATES DISTRICT COURT

15

FOR THE NORTHERN DISTRICT OF CALIFORNIA

16

SAN FRANCISCO DIVISION
17

18

CITY AND COUNTY OF SAN FRANCISCO,

No. 3:17-cv-04642-WHO

19

Plaintiff,

REPLY IN SUPPORT OF DEFENDANTS’

20

v.

MOTION TO DISMISS

21 JEFFERSON B. SESSIONS III, Attorney 22 General of the United States, et al.,

23

Defendants.

Date: February 28, 2018 Time: 2:00 p.m.

24

25

26

27

28

Reply in Supp. Motion to Dismiss No. 3:17-cv-04642-WHO

Case 3:17-cv-04642-WHO Document 72 Filed 02/14/18 Page 2 of 20

1

TABLE OF CONTENTS

2

3 TABLE OF AUTHORITIES................................................................................................................ ii

4 INTRODUCTION ................................................................................................................................ 1

5 ARGUMENT ........................................................................................................................................ 2

6

I. San Francisco Is Not Entitled to a Declaratory Judgment Regarding Compliance with Section 1373.............................................................. 2

7

A. Plaintiff’s Request for a Ruling Regarding Compliance

8

with Section 1373 Is Non-Justiciable.......................................................... 2

9

1. The Court’s Decision in Santa Clara v. Trump Has No Bearing on the Justiciability of Plaintiff’s 1373 Claim ..................... 2

10

2. Plaintiff’s Request for a Ruling Regarding Chapters

11

12H and 12I Is Constitutionally Unripe ............................................. 3

12

B. Alternatively, the Court Should Deny Plaintiff’s Request for a Ruling that Its Ordinances Comply with Section 1373............................... 5

13

1. Section 1373 Bars Prohibiting or Restricting the Exchange of

14

Information “Regarding” Citizenship or Immigration Status............ 5

15

2. The Court Should Deny Plaintiff’s Request for a Ruling that Chapter 12I Complies with Section 1373 ................................... 7

16

3. The Court Should Deny Plaintiff’s Request for a Ruling

17

that Chapter 12H Complies with Section 1373.................................. 8

18

II. The Challenged Immigration-Related Byrne JAG Conditions Are Lawful ............ 10

19

A. The Conditions Are Authorized by Statute and Do Not Violate the Separation of Powers.................................................................. 10

20

B. The Conditions Are Consistent with the Spending Clause .......................... 12

21

1. The Challenged Conditions are Unambiguous ................................ 13

22

2. The Challenged Conditions Are Related to the Purposes

23

of the Byrne JAG Program ............................................................... 14

24

3. The Challenged Conditions Do Not Violate any “Independent Constitutional Bar” ................................................... 15

25 CONCLUSION................................................................................................................................... 15

26

27

28

Reply in Supp. Motion to Dismiss

i

No. 3:17-cv-04642-WHO

Case 3:17-cv-04642-WHO Document 72 Filed 02/14/18 Page 3 of 20

1 2 3 CASES

TABLE OF AUTHORITIES

4 Arizona v. United States, 567 U.S. 387 (2012) ................................................................................ 7

5 Chicago v. Sessions, 264 F. Supp. 3d 933 (N.D. Ill. 2017) ........................................................... 13

6 County of Santa Clara v. Trump, 250 F. Supp. 3d 497 (N.D. Cal. 2017)........................................ 2
7 County of Santa Clara v. Trump, 267 F. Supp. 3d 1201 (N.D. Cal. 2017)...................................... 2 8
Davis v. Michigan Dep’t of Treasury, 489 U.S. 803 (1989) ............................................................ 5
9 10 Duvall v. Att’y Gen. of U.S., 436 F.3d 382 (3d Cir. 2006)............................................................. 14
11 Fonseca v. Fong, 167 Cal. App. 4th 922 (2008)............................................................................ 10

12 Mayweathers v. Newland, 314 F.3d 1062 (9th Cir. 2002) ................................................... 2, 14, 15

13 Preap v. Johnson, 831 F.3d 1193 (9th Cir. 2016) ............................................................................. 9

14 Regions Hosp. v. Shalala, 522 U.S. 448 (1998)............................................................................... 6
15 S. Dakota v. Dole, 483 U.S. 203 (1987)................................................................................... 12, 15 16
Steinle v. San Francisco, 230 F. Supp. 3d 994 (N.D. Cal. 2017) .................................................... 6
17 18 Thomas v. Anchorage Equal Rights Comm’n, 220 F.3d 1134 (9th Cir. 2000) ................................ 3

19
STATUTES
20 21 8 U.S.C. § 1101(a)(15) ..................................................................................................................... 8
22 8 U.S.C. § 1226(c)(1) ................................................................................................................... 8, 9

23 8 U.S.C. § 1226(d)(1)(C) ................................................................................................................. 8

24 8 U.S.C. § 1227(a)(1)(C) ................................................................................................................. 8

25 8 U.S.C. § 1231(a)(1)(B)(iii) ....................................................................................................... 5, 9

26 8 U.S.C. § 1231(a)(4) ................................................................................................................... 5, 9 27
8 U.S.C. § 1357(g)(10)(A) ............................................................................................................... 8
28

Reply in Supp. Motion to Dismiss

ii

No. 3:17-cv-04642-WHO

Case 3:17-cv-04642-WHO Document 72 Filed 02/14/18 Page 4 of 20

1 8 U.S.C. § 1367(a)(2) ....................................................................................................................... 8

2 8 U.S.C. § 1373(a) ....................................................................................................................... 1, 9
3 34 U.S.C. § 10102(a)(6) ............................................................................................................. 1, 11 4
34 U.S.C. § 10110(2) ..................................................................................................................... 11
5 6 34 U.S.C. § 10152(a)(1) ................................................................................................................. 14
7 34 U.S.C. § 10153(a)(4) ................................................................................................................. 15

8 34 U.S.C. § 10153(a)(5)(C) ........................................................................................................... 15

9 34 U.S.C. § 10153(a)(5)(D) ........................................................................................................... 11
10 34 U.S.C. § 10154 ............................................................................................................................ 4 11
34 U.S.C. § 10102(a)(1) ................................................................................................................. 14
12 13 34 U.S.C. § 10102(a)(2) ................................................................................................................. 14 14 34 U.S.C. § 10102(a)(6) ................................................................................................................. 11

15 34 U.S.C. §§ 10156-10157............................................................................................................. 12

16 34 U.S.C. § 10251(a)(1) ................................................................................................................. 14

17 DOJ Reauthorization Act of 2005, Pub. L. No. 109-162, 119 Stat. 2960 (2006) .......................... 11
18 S.F., CAL., ADMIN. CODE ch. 12H, § 12H.2 ................................................................................ 9 19
S.F., CAL., ADMIN. CODE ch. 12H, § 12H.3 ................................................................................ 8
20 21 S.F., CAL., ADMIN. CODE ch. 12I, § 12I.2 ................................................................................... 7
22 S.F., CAL., ADMIN. CODE ch. 12I, § 12I.3(e)............................................................................... 7

23
REGULATIONS
24
25 28 C.F.R. § 66.12 ........................................................................................................................... 12

26
LEGISLATIVE HISTORY
27
H.R. Rep. No. 109-233 (2005) ................................................................................................... 1, 11
28

Reply in Supp. Motion to Dismiss

iii

No. 3:17-cv-04642-WHO

Case 3:17-cv-04642-WHO Document 72 Filed 02/14/18 Page 5 of 20

1

INTRODUCTION

2

San Francisco seeks federal funds to support its local law enforcement prerogatives, yet

3 refuses any reciprocal obligation that its law enforcement officials recognize federal law enforce-

4 ment prerogatives by sharing information regarding individuals under local detention. The City

5 also seeks an order that its ordinances prohibiting the provision of that information do not violate

6 federal law.

7

Although the Department of Justice (“DOJ” or “Department”) has expressed concern that

8 Chapters 12H and 12I of the San Francisco Administrative Code may violate 8 U.S.C. § 1373, the

9 parties have not yet completed their discussions on that subject and DOJ’s Office of Justice

10 Programs (“OJP”) has recently requested certain documents from the City to facilitate making that

11 decision administratively. Thus, plaintiff’s claim for a ruling on whether Chapters 12H and 12I

12 violate Section 1373 is constitutionally unripe. In any event, assuming this claim were justiciable,

13 the Court should dismiss the claim on its merits. Section 1373 protects the exchange of “informa-

14 tion regarding the citizenship or immigration status” of individuals with federal immigration

15 authorities – information needed by federal authorities to determine the immigration status of aliens

16 and to take them into custody upon their release from criminal detention – and San Francisco’s

17 ordinances “prohibit” and “restrict” the transmission of that information. 8 U.S.C. § 1373(a).

18

Nor, in any event, is there any legal basis for plaintiff’s objection to complying with grant

19 conditions, a traditional aspect of participation in the Edward Byrne Memorial Justice Assistance

20 Grant Program. To further information-sharing, the Byrne JAG Program requires participants to

21 comply with Section 1373, to give federal immigration authorities access to the City’s detention

22 facilities to meet with aliens, and to give those authorities “as much advance notice as practicable”

23 before releasing an alien. These conditions are consistent not only with the statutes governing the

24 Byrne JAG Program, but also with the Program’s legislative history, which confirms that those

25 statutes empower DOJ and OJP to “place special conditions on all grants and to determine priority

26 purposes for formula grants,” H.R. Rep. No. 109-233, at 101 (2005); see 34 U.S.C. § 10102(a)(6).

27 And these conditions satisfy the Spending Clause: they articulate the required conduct and further

28 the Program’s goals of advancing criminal justice and public safety, easily surpassing the “some

Reply in Supp. Motion to Dismiss No. 3:17-cv-04642-WHO

Case 3:17-cv-04642-WHO Document 72 Filed 02/14/18 Page 6 of 20

1 relationship” test employed in this Circuit. Mayweathers v. Newland, 314 F.3d 1062, 1067 (9th Cir.

2 2002).

3

ARGUMENT

4 I. 5

San Francisco Is Not Entitled to a Declaratory Judgment Regarding Compliance with Section 1373

6

A. Plaintiff’s Request for a Ruling Regarding Compliance

7

with Section 1373 Is Non-Justiciable

8

1. The Court’s Decision in Santa Clara v. Trump Has No Bearing on the Justiciability of Plaintiff’s 1373 Claim

9

Plaintiff’s first argument regarding the justiciability of its request for a ruling that Chapters

10 12H and 12I comply with Section 1373 is that the Court’s decision in County of Santa Clara v.

11 Trump, 267 F. Supp. 3d 1201 (N.D. Cal. 2017), resolves this issue (Dkt. No. 67 at 6-7). That is

12 incorrect. At the time of the Court’s decisions in that case, which challenged Executive Order

13 13,768, the parties had not begun their current, ongoing administrative discussion regarding

14 Chapters 12H and 12I. Of course, the challenged Executive Order in that case was a final order.

15 And the Court found the dispute over the validity of the Order justiciable based on the perceived

16 threat that its requirements exceeded Section 1373 and the localities therefore faced unknown risks

17 to a wide range of potential grants. Importantly, this Court specifically stated that the Federal

18 Government should continue “to use lawful means to enforce existing conditions of federal grants

19 or 8 U.S.C. 1373.” County of Santa Clara v. Trump, 250 F. Supp. 3d 497, 540 (N.D. Cal. 2017).

20

Here, however, the circumstances and defendants’ argument are different, given that they

21 concern the process that this Court said could go forward: the awarding of a specific federal grant

22 under an established process leading to a final agency action. OJP has raised concerns regarding

23 whether Chapters 12H and 12I violate Section 1373, while expressly stating that it has not yet

24 reached a conclusion on that subject administratively (Dkt. No. 61, Exs. A, C). Moreover, OJP has

25 most recently requested documents from San Francisco to facilitate making that decision (Dkt. No.

26 68, Ex. C) – a request to which the City has not yet responded. A final determination on awarding

27 the grant has not been made. In other words, County of Santa Clara challenged a final Executive

28 Order whose consequences were potentially wide ranging and unpredictable. Here, the challenge is

Reply in Supp. Motion to Dismiss

2

No. 3:17-cv-04642-WHO

Case 3:17-cv-04642-WHO Document 72 Filed 02/14/18 Page 7 of 20

1 to a grant decision that has not been made and where the parties understand the exact consequences

2 of a decision: the award of a specific grant. Thus, the issue in County of Santa Clara was how to

3 address a final Executive Order given its potential impact, whereas the question here is whether the

4 Court should now short-circuit an ongoing administrative process.

5

2. Plaintiff’s Request for a Ruling Regarding Chapters

6

12H and 12I Is Constitutionally Unripe

7

In this case, the Court should decide that this claim is unripe. When evaluating constitu-

8 tional ripeness in the context of a pre-enforcement statutory challenge, a court may consider

9 “whether the plaintiffs have articulated a ‘concrete plan’ to violate the law in question, whether the

10 prosecuting authorities have communicated a specific warning or threat to initiate proceedings, and

11 the history of past prosecution or enforcement under the challenged statute.” Thomas v. Anchorage

12 Equal Rights Comm’n, 220 F.3d 1134, 1139 (9th Cir. 2000) (en banc). Since OJP has not yet

13 concluded administratively that San Francisco’s ordinances violate Section 1373 – and the City,

14 indeed, takes the position that there is no violation – there is no “live controversy” on that subject,

15 and plaintiff’s request for a ruling regarding its ordinances is constitutionally unripe. As the Court

16 of Appeals has held, “neither the mere existence of a proscriptive statute [here, Section 1373] nor a

17 generalized threat of prosecution [here, the ongoing correspondence between the City and OJP

18 regarding Chapters 12H and 12I] satisfies the ‘case or controversy’ requirement.” Id.

19

Plaintiffs’ arguments to the contrary are based on the parties’ pending communications

20 regarding Chapters 12H and 12I, and the certification that the City will eventually need to execute

21 to secure its grant. Plaintiff argues that the parties’ communications show there is a “real contro-

22 versy” regarding the City’s compliance with Section 1373 (Dkt. No. at 67 at 9). True, there is an

23 administrative “controversy” between the parties, but it has not yet reached its conclusion such as to

24 justify judicial intervention; as plaintiff itself acknowledges, those communications indicate only

25 that the City’s ordinances “potentially” violate Section 1373 (id.).1 In fact, by statute, OJP cannot

26

1 Plaintiff argues that OJP’s request for documents seeks information regarding San

Francisco’s “policies or practices” and thus “refutes Defendants’ claim that the City’s policies
27 and its implementation of those policies are not at issue” (Dkt. No. 67 at 9). But OJP’s desire to

28

explore that question administratively does not mean the question is justiciably presented in this action. In any event, as noted in defendants’ motion, if any claim regarding the City’s conduct

Reply in Supp. Motion to Dismiss

3

No. 3:17-cv-04642-WHO

Case 3:17-cv-04642-WHO Document 72 Filed 02/14/18 Page 8 of 20

1 reject San Francisco’s application at this stage in the administrative process. See 34 U.S.C. § 10154

2 (“The Attorney General shall not finally disapprove any application . . . submitted under this part

3 without first affording the applicant reasonable notice of any deficiencies in the application and

4 opportunity for correction and reconsideration.”). Until the process specified by Section 10154 is

5 completed and the City thus exhausts its remedies, there is no justiciable controversy.

6

Plaintiff also argues, citing a statement by the Attorney General, that the purpose of this

7 process is not to allow OJP to reach a decision, but to “coerce jurisdictions to change their policies”

8 (Dkt. No. 67 at 10; Dkt. No 68, Ex. D at 2). But this argument would effectively short-circuit any

9 administrative process, which could be characterized as coercive in relation to the issues being

10 discussed. Moreover, San Francisco is wrong to attribute coercion to the Attorney General’s

11 entirely appropriate role in encouraging law enforcement cooperation through the bully pulpit. In a

12 slightly later statement, the Attorney General said, “I urge all jurisdictions found to be potentially

13 out of compliance in this preliminary review to reconsider their policies that undermine the safety

14 of their residents.” See Justice Department Sends Letters to 29 Jurisdictions Regarding Their

15 Compliance with 8 U.S.C. 1373, available at https://www.justice.gov/opa/pr/justice-department-

16 sends-letters-29-jurisdictions-regarding-their-compliance-8-usc-1373 (last visited Feb. 14, 2018).

17 Given that the Attorney General was referring to the preliminary review by OJP, he was not

18 prejudging the ultimate question to be settled in the administrative process. More importantly, the

19 Attorney General, as the chief law enforcement officer of the nation, serves a critical function in

20 encouraging cooperation by state and local jurisdictions on matters viewed as important to law

21 enforcement. Such a precatory effort by the Attorney General using his powers of persuasion

22 should not lead this Court to circumvent an established administrative process.

23

Next, plaintiff argues that it will need to know “what Section 1373 means” in order to

24 certify its compliance before receiving a grant (Dkt. No. 67 at 8). Plaintiff complains that the City

25 will need to certify that it complies with defendants’ understanding of Section 1373. Given the

26 content of the parties’ ongoing communications, however, that should not present a problem. OJP

27 has said only that Chapters 12H and 12I may violate Section 1373 (Dkt. 61, Ex. A), and, if OJP

28 were properly presented, factual development would be needed to resolve the claim.

Reply in Supp. Motion to Dismiss

4

No. 3:17-cv-04642-WHO

Case 3:17-cv-04642-WHO Document 72 Filed 02/14/18 Page 9 of 20

1 ultimately determines they do not, the City can truthfully and comfortably execute the certification

2 at the appropriate time.2

3

B. Alternatively, the Court Should Deny Plaintiff’s Request for

4

a Ruling that Its Ordinances Comply with Section 1373

5

Assuming plaintiff’s request for a ruling that Chapters 12H and 12I do not violate Section

6 1373 were justiciable, the Court should dismiss this claim on its merits. Plaintiff reads Section

7 1373 much too narrowly, and the City’s ordinances violate the letter and intent of the statute.

8

1. Section 1373 Bars Prohibiting or Restricting the Exchange of

9

Information “Regarding” Citizenship or Immigration Status

Plaintiff contends that Section 1373 covers nothing more than mere “immigration status”

10

– that is, whether a given individual’s presence in the United States is consistent with law. A

11

“fundamental canon of statutory construction” is that “the words of a statute must be read in their

12

context and with a view to their place in the overall statutory scheme.” Davis v. Michigan Dep’t of

13

Treasury, 489 U.S. 803, 809 (1989). Nevertheless, San Francisco disregards the entire scheme of

14

the Immigration and Nationality Act (“INA”) in relation to aliens who have committed, or are

15

suspected of having committed, state or local crimes. Under the INA, DHS may not, except in

16

limited circumstances, “remove an alien who is sentenced to imprisonment until the alien is

17

released from imprisonment,” 8 U.S.C. § 1231(a)(4); the immigration removal period “begins on

18

. . . the date the alien is released from [state or local criminal] detention,” id. § 1231(a)(1)(B)(iii);

19

and federal immigration custody must begin “when the alien is released” from criminal custody, id.

20

§ 1226(c)(1) (emphasis added).

21

Plaintiff’s opposition cites none of these provisions, which are crucial to understanding

22

the purpose and meaning of Section 1373. San Francisco does not – and could not – deny that

23

protecting the exchange of information regarding the status of aliens with federal immigration

24

authorities ensures that those authorities will be able to track the status of such persons and take

25

26

2 Plaintiff argues that it will need to execute the certification “soon” (Dkt. No. 67 at 11).
27 But that will happen only after OJP decides to proceed with the awards, which are currently on

28

hold pending the outcome of Chicago v. Sessions, No. 17-2991 (7th Cir.) (Dkt. No. 67 at 4 n.3). Even then, each grantee will have 45 days to return the certification (Dkt. No. 61 ¶ 135).

Reply in Supp. Motion to Dismiss

5

No. 3:17-cv-04642-WHO

Case 3:17-cv-04642-WHO Document 72 Filed 02/14/18 Page 10 of 20

1 custody of them, as required by the INA, upon their release from state and local custody. Federal

2 authorities presumably already know whether any given individual is in the United States legally or

3 illegally, but they may lack other information needed to locate the individual and assume custody.

4 That is the principal object of Section 1373.

5

Furthermore, “[i]t is a cardinal rule of statutory construction that significance and effect

6 shall, if possible, be accorded to every word.” Regions Hosp. v. Shalala, 522 U.S. 448, 467

7 (1998). If Congress had meant 8 U.S.C. § 1373(a) to cover only an individual’s citizenship or

8 immigration status, it would have said “citizenship or immigration status” rather than “information

9 regarding citizenship or immigration status.” In attempting to give this language some meaning

10 short of an alien’s home address, release status, or other information covered by San Francisco’s

11 ordinances, plaintiff surmises that “information regarding citizenship or immigration status”

12 could include “an individual’s self-report about immigration status, or a third party’s statement

13 about an individual’s immigration status” (Dkt. No. 67 at 13). But such statements would consti-

14 tute simply reports of “immigration status” in different vehicles; they would be covered by the

15 words “citizenship or immigration status,” without the need to add “information regarding.”3

16

Similarly, another problem with plaintiff’s interpretation of Section 1373 is that neither a

17 city nor its employees can know whether a given alien’s presence in the United States is consis-

18 tent with the INA. An individual’s status under the immigration laws depends on several provi-

19 sions of the INA and several factual circumstances. San Francisco and its employees are privy to

20 “information regarding citizenship and immigration status” – that is, information needed by

21 federal authorities to make a determination regarding immigration status and potential federal

22 custody – but the City and its employees cannot determine an individual’s “immigration status”

23 and thus cannot positively convey that legal status to federal authorities.

24

Moreover, “information regarding citizenship or immigration status” can mean more than

25 mere “citizenship or immigration status” without encompassing “everything in a person’s life”

26

27

3 Plaintiff also seeks to rely on Steinle v. San Francisco, 230 F. Supp. 3d 994 (N.D. Cal.

28

2017), regarding the scope of Section 1373 (Dkt. No. 67 at 12 n.7). The court in that case did not, however, have the benefit of the Federal Government’s briefing on this issue.

Reply in Supp. Motion to Dismiss

6

No. 3:17-cv-04642-WHO

Case 3:17-cv-04642-WHO Document 72 Filed 02/14/18 Page 11 of 20

1 (Dkt. No. 67 at 12). Consistent with the INA, “information regarding citizenship or immigration

2 status” encompasses information that federal authorities need to determine a person’s status and

3 to take the person into custody. It does not encompass, for example, whether the individual

4 receives City health services or unemployment services, whether the individual pays his or her tax

5 bills or utility bills, whether the individual’s vehicle is properly registered, or a great many other

6 categories of unrelated information that San Francisco may have.

7

In attempting to limit the scope of Section 1373, plaintiff also argues that understanding

8 the statute as encompassing more than “citizenship or immigration status” alone would invade the

9 “heart of the state’s police power” and “supersede San Francisco’s exercise of its core police

10 powers” (Dkt. No. 67 at 13). But the admission, presence, and potential removal of aliens in the

11 United States are quintessentially the responsibility of the Federal Government, and the information

12 protected by Section 1373 is needed to carry out those responsibilities. See Arizona v. United

13 States, 567 U.S. 387, 394 (2012). Protecting the transmission of information regarding the

14 immigration status of such persons to federal immigration authorities, far from invading the

15 “heart of the state’s police power,” merely ensures that federal officers can perform their duties.

16

2. The Court Should Deny Plaintiff’s Request for a Ruling

17

that Chapter 12I Complies with Section 1373

18

In light of that correct understanding of Section 1373, the Court should dismiss plaintiff’s

19 claim for a ruling that its ordinances are consistent with the federal statute. Chapter 12I provides

20 that “[l]aw enforcement officials shall not . . . provide any individual’s personal information to a

21 federal immigration officer, on the basis of an administrative warrant, prior deportation order, or

22 other civil immigration document based solely on alleged violations of the civil provisions of

23 immigration laws.” S.F., CAL., ADMIN. CODE ch. 12I, § 12I.3(e). Personal information is defined

24 broadly as including “any confidential, identifying information . . . including, but not limited to

25 . . . contact information . . . .” Id. § 12I.2. Aside from seeking to limit “information regarding

26 citizenship or immigration status” to nothing but mere immigration status, plaintiff largely

27 ignores defendants’ explanation as to why this provision violates Section 1373. Most notably, the

28 City ignores the fact that “contact information,” including a person’s address, relates to several

Reply in Supp. Motion to Dismiss

7

No. 3:17-cv-04642-WHO

Case 3:17-cv-04642-WHO Document 72 Filed 02/14/18 Page 12 of 20

1 issues under the INA, including whether the person is “lawfully present in the United States,”

2 which is one component of “immigration status,” 8 U.S.C. § 1357(g)(10)(A); whether the person

3 qualifies for “immigrant” status under 8 U.S.C. § 1101(a)(15); whether the person has derived

4 citizenship from a relative; and whether the alien’s place of residence qualifies them as a non-

5 resident visitor, id. § 1227(a)(1)(C). “Contact information” is also needed for federal authorities

6 to comply with the statutory mandates to “take into custody any alien who” has committed certain

7 criminal offenses “when the alien is released” from criminal custody, id. § 1226(c)(1) (emphasis

8 added), and to “maintain a current record of aliens who have been convicted of an aggravated

9 felony,” id. § 1226(d)(1)(C). Defendants’ opening memorandum pointed out all of these facts,

10 but plaintiff’s argument ignores them. Indeed, plaintiff’s entire opposition cites only two sections

11 of the INA: Section 1373 and 8 U.S.C. § 1367(a)(2), the second of which prohibits the disclosure

12 of information regarding aliens who are seeking certain immigration benefits (Dkt. No. 67 at 13).

13

The potential for an employee to be disciplined for violating Chapter 12I makes it all the

14 more potent. Plaintiff downplays the potential for such discipline, arguing that it is “pure

15 conjecture” (Dkt. No. 67 at 18). But the City’s own materials suggest otherwise. For example,

16 San Francisco’s Human Resources Director warned all employees, in a memorandum dated

17 January 19, 2017, that employees “acting in their official capacities may not use City funds or

18 resources,” among other things, to “give out information regarding the release status or personal

19 information of any individual” except as permitted by Chapter 12I (Dkt. No. 68, Ex. H). The

20 memorandum also warned, moreover, that it was “provided as a general summary of the City’s

21 sanctuary city laws and [was] not a substitute for legal advice” (id.). Finally, the immediately

22 preceding chapter of the Administrative Code – Chapter 12H – expressly provides that

23 “employees who fail to comply with the prohibitions of the ordinance shall be subject to

24 appropriate disciplinary action.” S.F., CAL., ADMIN. CODE ch. 12H, § 12H.3.

25

3. The Court Should Deny Plaintiff’s Request for a Ruling

26

that Chapter 12H Complies with Section 1373

27

Chapter 12H prohibits employees from using “any City . . . resources to assist in the

28 enforcement of Federal immigration law” and from “gather[ing] or disseminat[ing] information

Reply in Supp. Motion to Dismiss

8

No. 3:17-cv-04642-WHO

Case 3:17-cv-04642-WHO Document 72 Filed 02/14/18 Page 13 of 20

1 regarding release status of individuals or any other such personal information.” See S.F., CAL.,

2 ADMIN. CODE ch. 12H, § 12H.2. Both of these prohibitions violate Section 1373. Plaintiff does

3 not deny that “assist[ing] in the enforcement of Federal immigration law” encompasses “sending

4 . . . information regarding . . . citizenship or immigration status” to federal authorities under

5 Section 1373, nor that forbidding the use of City “resources” to communicate with federal

6 authorities falls within Section 1373’s proscription against “restrict[ing]” the transmission of

7 immigration-status information “in any way.” 8 U.S.C. § 1373(a). Further, as with the “personal

8 information” covered by Chapter 12I (as well as Chapter 12H), plaintiff ignores the fact that

9 knowing the “release status” of aliens is essential to the performance of federal responsibilities.

10 The INA specifies that, except in limited circumstances, DHS “may not remove an alien who is

11 sentenced to imprisonment until the alien is released from imprisonment,” 8 U.S.C. § 1231(a)(4);

12 that an alien’s removal period “begins on . . . the date the alien is released from [state or local

13 criminal] detention,” id. § 1231(a)(1)(B)(iii); and that federal immigration authorities “shall” take

14 custody of an alien for removal proceedings “when the alien is released” from criminal custody, id.

15 § 1226(c)(1) (emphasis added); see Preap v. Johnson, 831 F.3d 1193, 1202 (9th Cir. 2016) (holding

16 that federal authorities must take custody of an alien immediately upon release from criminal

17 detention), petition. for cert. filed, No. 16-1363 (May 11, 2017). Plaintiff avoids citing any of these

18 authorities, which establish that “information regarding citizenship and immigration status” under

19 Section 1373 necessarily includes the information whose disclosure is prohibited by Chapter 12H.

20

Plaintiff makes three arguments to the contrary, all of them without merit. First, the City

21 contends that Chapter 12H’s prohibition against “assist[ing] in the enforcement of Federal

22 immigration law” cannot apply here because the prohibition against sharing information is the

23 “more specific” provision (Dkt. No. 67 at 16). But the issue here is not which provision would

24 control in a given situation as a matter of state or local law, but whether San Francisco has an

25 ordinance that “prohibit[s], or in any way restrict[s], any government entity or official from

26 sending to, or receiving from, [federal immigration authorities] information regarding the

27 citizenship or immigration status, lawful or unlawful, of any individual.” Any provision of San

28 Francisco law that constitutes such a prohibition or restriction violates Section 1373. In any

Reply in Supp. Motion to Dismiss

9

No. 3:17-cv-04642-WHO

Case 3:17-cv-04642-WHO Document 72 Filed 02/14/18 Page 14 of 20

1 event, plaintiff ignores the California Court of Appeal’s holding that providing information on

2 certain arrestees to federal immigration officials constitutes “provid[ing] state assistance in the

3 enforcement of federal immigration laws.” Fonseca v. Fong, 167 Cal. App. 4th 922, 932 (2008).

4

Second, plaintiff argues that Chapter 12H cannot violate Section 1373 because the City

5 has deleted language that expressly prohibited disseminating “information regarding the immi-

6 gration status of individuals” (Dkt. No. 67 at 17; 68, Ex. F). That action also does not prevent the

7 current Chapter 12H from violating Section 1373. Again, the question here is whether any

8 existing provision of San Francisco law constitutes a prohibition or restriction covered by Section

9 1373. That the City has deleted language from Chapter 12H that violated Section 1373 does not

10 mean there can be no other language that constitutes such a prohibition or restriction.

11

Third, plaintiff argues that Chapter 12H cannot violate Section 1373 because the

12 ordinance says “unless such assistance is required by Federal or State statute, regulation, or court

13 decision” (Dkt. No. 67 at 17). This clause does not, however, save Chapter 12H from violating

14 Section 1373. Among other reasons, this purported saving clause presumably incorporates San

15 Francisco’s view of what Section 1373 covers; since plaintiff contends that Section 1373 covers

16 only an individual’s immigration status and nothing more, the saving clause would not permit an

17 employee to share other information covered by Section 1373. Moreover, by its own terms, the

18 clause applies only to the “assistance” prohibition in Chapter 12H and not the information-sharing

19 prohibition – the second of which plaintiff contends does not apply here.4

20 II. The Challenged Immigration-Related Byrne JAG Conditions Are Lawful

21

A. The Conditions Are Authorized by the Statute and Do Not

22

Violate the Separation of Powers

23

Turning to plaintiff’s challenges to the grant conditions, the Attorney General has “final

24

25

4 Plaintiff also seeks to rely on a DOJ Office of Inspector General report from 2007 for the

proposition that the saving clause prevents Chapter 12H from violating Section 1373 (Dkt. No. 67

26 at 17; Dkt. 68, Ex. G at 24). That report, however, focused on a factual analysis of cooperation

with federal authorities. The report did not conclude that the saving clause prevented the
27 ordinance from violating Section 1373, but only observed briefly that the clause “reinforce[d] [the

28

Office’s] view that there [was] insufficient evidence [at that time] to conclude that San Francisco fails to cooperate with ICE’s efforts to remove undocumented aliens.”

Reply in Supp. Motion to Dismiss

10

No. 3:17-cv-04642-WHO

Case 3:17-cv-04642-WHO Document 72 Filed 02/14/18 Page 15 of 20

1 authority over all functions, including any grants” made by OJP. 34 U.S.C. § 10110(2). Also, the

2 responsibilities of the Assistant Attorney General for OJP include “exercise[ing] such other

3 powers and functions as may be vested in the [AAG] pursuant to this chapter or by delegation of

4 the Attorney General, including placing special conditions on all grants, and determining priority

5 purposes for formula grants,” id. § 10102(a)(6), and ensuring that grantees “comply with . . . all

6 other applicable Federal laws,” id. § 10153(a)(5)(D). The report of the House Judiciary

7 Committee accompanying the enactment of Section 10102 stated that that provision “allows the

8 [AAG] to place special conditions on all grants and to determine priority purposes for formula

9 grants.” H.R. Rep. No. 109-233, at 101 (2005). The immigration-related conditions challenged

10 plainly constitute such “special conditions” enforceable by the AAG. Equally true, the AAG

11 enjoys the authority to further the Department’s “priority purposes” for this “formula grant,” just

12 as it does for non-formula, discretionary grants, where the grantmaker enjoys significant

13 discretion in the rules, requirements, and conditions that govern the grant. See Discretionary

14 Grant, Grant Terminology, www.grants.gov/web/grants/learn-grants/grant-terminology.html

15 (describing discretionary grant as one “for which the federal awarding agency generally may

16 select the recipient from among all eligible recipients, may decide to make or not make an award

17 based on the programmatic, technical, or scientific content of an application, and can decide the

18 amount of funding to be awarded”) (last visited Feb. 14, 2018). DOJ has also exercised its

19 authority to ensure that grantees comply with applicable federal laws, including 8 U.S.C. § 1373.

20

Plaintiff’s first argument to the contrary is that 34 U.S.C. § 10102(a)(6) is not a grant of

21 authority but only refers to authority that may be granted elsewhere (Dkt. No. 67 at 19-20). As

22 discussed in defendants’ motion, however, the authority to “plac[e] special conditions on all

23 grants, and [to] determin[e] priority purposes for formula grants” was added as part of the same

24 legislation that created the Byrne JAG Program. See DOJ Reauthorization Act of 2005, Pub. L.

25 No. 109-162, § 1152(b), 119 Stat. 2960 (2006) (adding language to subsection (a)(6)); id. § 1111

26 (creating Byrne JAG Program). Plaintiff does not explain why Congress would have added that

27 language, it not to confer the authority described. Moreover, the language indicates that the

28 Attorney General may delegate this authority to the AAG.

Reply in Supp. Motion to Dismiss

11

No. 3:17-cv-04642-WHO

Case 3:17-cv-04642-WHO Document 72 Filed 02/14/18 Page 16 of 20

1

Second, plaintiff argues that “special conditions” means only a particular kind of

2 condition imposed on “high-risk” grantees under a general DOJ regulation, 28 C.F.R. § 66.12, in

3 effect between 1988 and 2014 (Dkt. No. 67 at 21-22). The statutory “special conditions” author-

4 ity does not, however, contain any language referencing, incorporating, or otherwise limiting its

5 application to that former regulation. Further, that regulation did not purport to describe the

6 universe of appropriate special conditions applicable to all types of grantees under a variety of

7 programs. Plaintiff does not explain why the only type of special conditions authorized under the

8 Byrne JAG Program would be those applicable to high-risk grantees, and it cites no evidence that

9 Congress looked to this regulation in any respect when it added the subject language in 2006.

10 And, in any event, plaintiff’s reading leaves unexplained the AAG’s complementary power to

11 “determin[e] priority purposes” for formula grants, as DOJ may do for non-formula, discretionary

12 grants. That power, of course, independently allows the AAG to utilize rules, requirements, and

13 conditions to further the Department’s priorities in issuing the grants.

14

Third and finally, plaintiff argues that the challenged conditions cannot be authorized by

15 the statute because the Byrne JAG Program provides formula grants rather than discretionary

16 grants (Dkt. No. 67 at 22-23). But this argument confuses conditions on grant eligibility – such as

17 the conditions at issue here – with the formula for allocating funds to eligible recipients.

18 Although there is no authority to deviate from the statutory formula for allocating funds among

19 eligible jurisdictions except in the limited circumstances, see 34 U.S.C. §§ 10156-10157, the

20 amount of a jurisdiction’s award under that formula is unrelated to whether it has demonstrated its

21 eligibility to receive the funds by complying with the conditions specified in the statute and

22 imposed pursuant to the authority of the Attorney General and the Assistant Attorney General.

23 Accordingly, those conditions do not “override” the statutory formula (contra Dkt. No. 67 at 23).

24

B. The Conditions Are Consistent with the Spending Clause

25

In relation to plaintiff’s challenge under the Spending Clause, the challenged conditions

26 clearly state what is required; they are related to the purposes of the Byrne JAG Program; and

27 they do not “induce” San Francisco to violate any constitutional prohibition. See S. Dakota v.

28 Dole, 483 U.S. 203, 210 (1987). Plaintiffs’ arguments to the contrary to do establish a violation

Reply in Supp. Motion to Dismiss

12

No. 3:17-cv-04642-WHO

Case 3:17-cv-04642-WHO Document 72 Filed 02/14/18 Page 17 of 20

1 of any limitations on the spending power.

2

1. The Challenged Conditions are Unambiguous

3

Plaintiff’s argument on the clarity of the access and notice conditions is based primarily

4 on the language in the FY 2017 grant solicitations (Dkt. No. 67 at 25; Dkt. No. 61, Ex. B at 30).

5 The purpose of that language, however, was only to inform potential applicants that conditions

6 along those lines would be included in the grant documents. The language of the actual

7 conditions, as contained in the awards that OJP issued before the conditions were enjoined in

8 Chicago v. Sessions, 264 F. Supp. 3d 933, 945 (N.D. Ill. 2017), was thoroughly detailed. See

9 Request for Judicial Notice (“RJN”), Ex. E ¶¶ 53, 55, 56; Ex. F ¶¶ 53, 55, 56 (Dkt. No. 66-1).

10 For example, plaintiff complains that the grant solicitations did not make clear “whether notice

11 must be given only when the scheduled release date and time is known 48 hours in advance . . . or

12 whether jurisdictions must hold inmates in custody for additional time to provide a full period of

13 notice” (Dkt. No. 67 at 25). The actual conditions answer both of those questions, specifying that

14 the notice condition requires “only as much advance notice as practicable” and that nothing in the

15 condition “shall be understood to authorize or require any recipient . . . to maintain (or detain) any

16 individual in custody beyond the date and time the individual would have been released in the

17 absence of this condition.” RJN, Ex. E ¶ 55; Ex. F ¶ 55.

18

As for the condition requiring compliance with Section 1373, defendants’ discussion

19 regarding Chapters 12H and 12I of the San Francisco Administrative Code should obviate any

20 uncertainty about the meaning of this condition. The Department of Justice clearly understands

21 “information regarding . . . citizenship or immigration status” as encompassing information

22 needed by federal immigration authorities to determine as individual’s immigration status and to

23 take custody of the individual upon release criminal detention. And defendants clearly under-

24 stand the Section 1373 condition as barring a grantee from prohibiting its employees from

25 providing an alien’s identifying information or release date to federal authorities.

26

Plaintiff raises other factual questions that may arise in implementing these conditions and

27 argues that the conditions are ambiguous because they fail to address those scenarios (Dkt. No. 67

28 at 26). The Court of Appeals has made clear, however, that the Spending Clause does not require

Reply in Supp. Motion to Dismiss

13

No. 3:17-cv-04642-WHO

Case 3:17-cv-04642-WHO Document 72 Filed 02/14/18 Page 18 of 20

1 perfect clarity or complete detail. In rejecting a Spending Clause challenge, the court said,

2 “Congress is not required to list every factual instance in which a state will fail to comply with a

3 condition. Such specificity would prove too onerous, and perhaps, impossible.” A challenged

4 condition need only “make the existence of the condition itself – in exchange for the receipt of

5 federal funds – explicitly obvious.” Mayweathers v. Newland, 314 F.3d 1062, 1067 (9th Cir.

6 2002). Like the statute in Mayweathers, the conditions challenged here easily meet this standard.

7

2. The Challenged Conditions Are Related to the Purposes

8

of the Byrne JAG Program

9

Plaintiff makes a half-hearted attempt to establish that there is no relationship between

10 “criminal justice” and public safety under the Byrne JAG Program, 34 U.S.C. §§ 10102(a)(1), (2),

11 10152(a)(1), and the enforcement of federal immigration law. The City argues that “presence in

12 this country without documentation is not a crime” and that deportability based on criminal

13 offenses does not establish the needed relationship (Dkt. No. 67 at 27). But plaintiff ignores the

14 many ways in which public safety, criminal justice, and immigration law are intertwined. The

15 Byrne JAG Program’s authorizing statute specifies that grant funds are intended to provide

16 resources “for criminal justice,” 34 U.S.C. § 10152(a)(1), defined broadly as “activities pertaining

17 to crime prevention, control, or reduction, or the enforcement of the criminal law, including, but

18 not limited to, police efforts to prevent, control, or reduce crime or to apprehend criminals . . .

19 activities of courts having criminal jurisdiction, and related agencies,” id. § 10251(a)(1)

20 (emphasis added). Similarly, “[a] primary goal of several recent overhauls of the INA has been to

21 ensure and expedite the removal of aliens convicted of serious crimes.” Duvall v. Att’y Gen. of

22 U.S., 436 F.3d 382, 391 (3d Cir. 2006).

23

The challenged conditions relate only to aliens who are under detention and who have either

24 committed crimes or are suspected of having committed crimes. State and local cooperation with

25 the Federal Government through the provision of basic information and access allows for effective

26 enforcement of federal immigration law against aliens who are criminals or suspected criminals –

27 and thus makes communities safer. The conditions are also consistent with the Byrne JAG

28 Program’s express purposes of ensuring that grantees undertake “appropriate coordination with

Reply in Supp. Motion to Dismiss

14

No. 3:17-cv-04642-WHO

Case 3:17-cv-04642-WHO Document 72 Filed 02/14/18 Page 19 of 20

1 affected agencies” and “report such data . . . and information (programmatic and financial) as the

2 Attorney General may reasonably require.” 34 U.S.C. § 10153(a)(4), (5)(C). The challenged

3 conditions thus directly advance the purposes of the Byrne JAG Program, and easily clear the low

4 bar of bearing “some relationship” to the Program’s purposes. Mayweathers, 314 F.3d at 1067.

5

Furthermore, plaintiff’s assertion that “immigration law has nothing to do with enforce-

6 ment of local criminal laws” (Dkt. No. 67 at 27, citation omitted), is belied by the connection that

7 the City itself draws between its immigration enforcement policies and its crime rates – alleging,

8 for example, that its “Sanctuary City Laws arise from San Francisco’s commitment and respon-

9 sibility to ensure public safety and welfare” and that crime rates are lower in “sanctuary counties”

10 (Dkt. No. 61 ¶ 31). Thus, although San Francisco may disagree with the substance of the federal

11 policy choices embodied in the challenged grant conditions, plaintiff’s own arguments reflect the

12 undeniable relationship between public safety and immigration enforcement. In short, the parties

13 agree that the “relatedness” aspect of Dole is satisfied here.

14

3. The Challenged Conditions Do Not Violate any

15

“Independent Constitutional Bar”

16

Like plaintiff’s argument on ambiguity, the City’s argument on whether the challenged

17 conditions will “induce” it to violate some other constitutional provision is based on the language

18 of the grant solicitation rather than that of the grant conditions. The award documents state

19 unequivocally that nothing in the conditions “shall be understood to authorize or require any

20 recipient . . . to maintain (or detain) any individual in custody beyond the date and time the

21 individual would have been released in the absence of this condition.” RJN, Ex. E ¶¶ 55, 56; Ex.

22 F ¶¶ 55, 56. There is no question regarding whether defendants might “revert” to the language of

23 the solicitation (Dkt. No. 67 at 28); that was never the language of the conditions. Thus, the

24 challenged conditions raise no issue under the Fourth Amendment or any other “independent

25 constitutional bar.” See Dole, 483 U.S. at 210.

26

CONCLUSION

27

Accordingly, for these reasons and for those stated in defendants’ opening memorandum,

28 the Court should dismiss plaintiff’s First Amended Complaint and all of its claims.

Reply in Supp. Motion to Dismiss

15

No. 3:17-cv-04642-WHO

Case 3:17-cv-04642-WHO Document 72 Filed 02/14/18 Page 20 of 20

1 Dated: February 14, 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
Reply in Supp. Motion to Dismiss No. 3:17-cv-04642-WHO

Respectfully submitted, CHAD A. READLER Acting Assistant Attorney General ALEX G. TSE Acting United States Attorney JOHN R. TYLER Assistant Director /s/ W. Scott Simpson W. SCOTT SIMPSON (Va. Bar #27487) Senior Trial Counsel Attorneys, Department of Justice Civil Division, Room 7210 Federal Programs Branch 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
16

 
 Case 3:17-cv-04642-WHO Document 78 Filed 03/05/18 Page 1 of 3

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,

8

Plaintiff,

9

v.

10 JEFFERSON BEAUREGARD SESSIONS,
11 et al.,

12

Defendants.

Case No. 17-cv-04642-WHO
ORDER DENYING MOTION TO DISMISS Re: Dkt. No. 66

13

This case continues the clash between the City and County of San Francisco’s (“the City”)

14 sanctuary city policies and the federal defendants’ interpretation of its “broad, undoubted power

15 over the subject of immigration and the status of aliens.” U.S. v Arizona, 567 U. S. 387, 394

16 (2012). I enjoined the President’s Executive Order 13,768 in County of Santa Clara v. Donald J.

17 Trump, 275 F. Supp. 3d. 1196, 1212 (N.D. Cal. 2017), because it purported to give power to the

18 Executive to deny eligibility for all federal grants, regardless of their relationship to immigration,

19 to any jurisdiction violating the Executive’s interpretation of its powers concerning immigration

20 enforcement. This case concerns the City’s eligibility for one federal grant program, the Edward

21 Byrne Memorial Justice Assistance Grant (“Byrne JAG”) Program, which the City has historically

22 received but appears virtually certain not to receive this year because of the defendants’ differing

23 interpretation of 8 U.S.C. § 1373 and how it applies to the condition that grantees comply with all

24 applicable laws. The City states claims for declaratory relief that it complies with Section 1373

25 and that the defendants are violating the separation of powers and spending clause by their actions.

26

The defendants move to dismiss. For reasons similar to their rationale opposing the

27 injunction in the Executive Order case and in the motion to dismiss the case filed by the State of

28 California concerning its complaint regarding its sanctuary policies, State of California v.

Case 3:17-cv-04642-WHO Document 78 Filed 03/05/18 Page 2 of 3

United States District Court Northern District of California

1 Sessions, No. 17-4701, Motion to Dismiss (Dkt. 66), the defendants assert that the City lacks

2 Article III standing and that the Amended Complaint fails to state a claim. And for reasons

3 similar to the ones given in my Orders in those cases, I find that the City has Article III standing

4 because it has a well-founded fear of enforcement, injury-in-fact, and ripe claims. See State of

5 California, Order Denying Motion to Dismiss, at 1 (N.D.Cal. March 5, 2018); Cnty. of Santa

6 Clara, 275 F. Supp. 3d. at 1208-11.

7

The City has been a primary target of the Trump Administration’s ire over sanctuary city

8 policies. On September 5, 2017, the City submitted an application for a FY 2017 Byrne JAG

9 grant. First Amended Complaint ¶127 (Dkt. No. 61). The Office of Justice Programs (“OJP”)

10 responded with a letter to the City expressing concerns over its “sanctuary city” ordinances and

11 compliance with Section 1373. Id., Ex. A (Dkt. No. 61-1). The City answered that it believed that

12 its ordinances complied with Section 1373; its interpretation of Section 1373 apparently cannot be

13 reconciled with the defendants’ interpretation. Id., Ex. C (Dkt. No. 61-3). There is no doubt that 14 the Executive will not provide the Byrne JAG grant to San Francisco because of those policies. 1

15

At this stage, the City has stated legally sufficient claims for relief. With respect to the

16 Notice and Access conditions, the reasoning in the orders in City of Chicago v. Sessions and City

17 of Philadelphia v. Sessions makes plain that the City has at least stated plausible claims

18 concerning them. See City of Philadelphia v. Sessions, No. 17–3894, ––– F.Supp.3d ––––, 2017

19 WL 5489476, at *48-49 (E.D. Pa. Nov. 15, 2017) (finding that the Notice and Access conditions

20 are not statutorily authorized and the imposition of the conditions implicate constitutional

21 concerns); City of Chicago v. Sessions, 264 F.Supp.3d 933, 943 (N.D. Ill. 2017) (holding that the

22 Notice and Access conditions exceed statutory authority of Executive Branch and imposition of

23 the conditions violated the separation of powers doctrine). This is not to say that the City is likely

24 to prevail; I cannot make that determination without a complete record on the novel and weighty

25 constitutional issues this case presents. But for purposes of pleading, the claims may proceed and

26

27

1 The comments of the leaders of the Executive Branch underscore that a case and controversy exists with respect to these claims. See State of California, Order Denying Amended Motion for

28

Preliminary Injunction, at 14-15 (N.D. Cal. March 5, 2018) (detailing comments from the Acting Director of ICE, the Attorney General and the President).

2

Case 3:17-cv-04642-WHO Document 78 Filed 03/05/18 Page 3 of 3

United States District Court Northern District of California

1 defendants’ motion is DENIED.

2

The parties are directed to meet and confer and agree to the extent possible on a schedule

3 for discovery and cross-motions for summary judgment. A Joint Case Management Statement

4 shall be filed on March 20, 2018 setting forth either an agreed schedule or competing ones. A

5 Case Management Conference will be held on March 27, 2018 at 2 p.m. in the event the parties

6 have been unable to agree or that one of the parties wishes to be heard on any other issue in the

7 litigation.

8

IT IS SO ORDERED.

9 Dated: March 5, 2018

10

11

12

William H. Orrick United States District Judge

13

14

15

16

17

18

19

20

21

22

23

24

25

26

27

28 3

 
 Case 3:17-cv-04642-WHO Document 145 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

Case 3:17-cv-04642-WHO Document 145 Filed 10/05/18 Page 2 of 61

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-04642-WHO Document 145 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

Case 3:17-cv-04642-WHO Document 145 Filed 10/05/18 Page 4 of 61

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

Case 3:17-cv-04642-WHO Document 145 Filed 10/05/18 Page 5 of 61

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-04642-WHO Document 145 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

Case 3:17-cv-04642-WHO Document 145 Filed 10/05/18 Page 7 of 61

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

Case 3:17-cv-04642-WHO Document 145 Filed 10/05/18 Page 8 of 61

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-04642-WHO Document 145 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

Case 3:17-cv-04642-WHO Document 145 Filed 10/05/18 Page 10 of 61

United States District Court Northern District of California

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

Case 3:17-cv-04642-WHO Document 145 Filed 10/05/18 Page 11 of 61

United States District Court Northern District of California

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

Case 3:17-cv-04642-WHO Document 145 Filed 10/05/18 Page 12 of 61

United States District Court Northern District of California

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

Case 3:17-cv-04642-WHO Document 145 Filed 10/05/18 Page 13 of 61

United States District Court Northern District of California

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

Case 3:17-cv-04642-WHO Document 145 Filed 10/05/18 Page 14 of 61

United States District Court Northern District of California

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

Case 3:17-cv-04642-WHO Document 145 Filed 10/05/18 Page 15 of 61

United States District Court Northern District of California

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

Case 3:17-cv-04642-WHO Document 145 Filed 10/05/18 Page 16 of 61

United States District Court Northern District of California

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

Case 3:17-cv-04642-WHO Document 145 Filed 10/05/18 Page 17 of 61

United States District Court Northern District of California

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

Case 3:17-cv-04642-WHO Document 145 Filed 10/05/18 Page 18 of 61

United States District Court Northern District of California

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

Case 3:17-cv-04642-WHO Document 145 Filed 10/05/18 Page 19 of 61

United States District Court Northern District of California

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

Case 3:17-cv-04642-WHO Document 145 Filed 10/05/18 Page 20 of 61

United States District Court Northern District of California

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

Case 3:17-cv-04642-WHO Document 145 Filed 10/05/18 Page 21 of 61

United States District Court Northern District of California

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

Case 3:17-cv-04642-WHO Document 145 Filed 10/05/18 Page 22 of 61

United States District Court Northern District of California

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

Case 3:17-cv-04642-WHO Document 145 Filed 10/05/18 Page 23 of 61

United States District Court Northern District of California

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

Case 3:17-cv-04642-WHO Document 145 Filed 10/05/18 Page 24 of 61

United States District Court Northern District of California

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

Case 3:17-cv-04642-WHO Document 145 Filed 10/05/18 Page 25 of 61

United States District Court Northern District of California

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

Case 3:17-cv-04642-WHO Document 145 Filed 10/05/18 Page 26 of 61

United States District Court Northern District of California

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

Case 3:17-cv-04642-WHO Document 145 Filed 10/05/18 Page 27 of 61

United States District Court Northern District of California

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

Case 3:17-cv-04642-WHO Document 145 Filed 10/05/18 Page 28 of 61

United States District Court Northern District of California

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

Case 3:17-cv-04642-WHO Document 145 Filed 10/05/18 Page 29 of 61

United States District Court Northern District of California

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

Case 3:17-cv-04642-WHO Document 145 Filed 10/05/18 Page 30 of 61

United States District Court Northern District of California

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

Case 3:17-cv-04642-WHO Document 145 Filed 10/05/18 Page 31 of 61

United States District Court Northern District of California

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

Case 3:17-cv-04642-WHO Document 145 Filed 10/05/18 Page 32 of 61

United States District Court Northern District of California

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

United States District Court Northern District of California

Case 3:17-cv-04642-WHO Document 145 Filed 10/05/18 Page 33 of 61
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
33

Case 3:17-cv-04642-WHO Document 145 Filed 10/05/18 Page 34 of 61

United States District Court Northern District of California

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

Case 3:17-cv-04642-WHO Document 145 Filed 10/05/18 Page 35 of 61

United States District Court Northern District of California

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

Case 3:17-cv-04642-WHO Document 145 Filed 10/05/18 Page 36 of 61

United States District Court Northern District of California

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

Case 3:17-cv-04642-WHO Document 145 Filed 10/05/18 Page 37 of 61

United States District Court Northern District of California

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

Case 3:17-cv-04642-WHO Document 145 Filed 10/05/18 Page 38 of 61

United States District Court Northern District of California

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

Case 3:17-cv-04642-WHO Document 145 Filed 10/05/18 Page 39 of 61

United States District Court Northern District of California

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

Case 3:17-cv-04642-WHO Document 145 Filed 10/05/18 Page 40 of 61

United States District Court Northern District of California

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

Case 3:17-cv-04642-WHO Document 145 Filed 10/05/18 Page 41 of 61

United States District Court Northern District of California

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

Case 3:17-cv-04642-WHO Document 145 Filed 10/05/18 Page 42 of 61

United States District Court Northern District of California

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

Case 3:17-cv-04642-WHO Document 145 Filed 10/05/18 Page 43 of 61

United States District Court Northern District of California

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

Case 3:17-cv-04642-WHO Document 145 Filed 10/05/18 Page 44 of 61

United States District Court Northern District of California

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

Case 3:17-cv-04642-WHO Document 145 Filed 10/05/18 Page 45 of 61

United States District Court Northern District of California

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

Case 3:17-cv-04642-WHO Document 145 Filed 10/05/18 Page 46 of 61

United States District Court Northern District of California

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

Case 3:17-cv-04642-WHO Document 145 Filed 10/05/18 Page 47 of 61

United States District Court Northern District of California

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

Case 3:17-cv-04642-WHO Document 145 Filed 10/05/18 Page 48 of 61

United States District Court Northern District of California

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

United States District Court Northern District of California

Case 3:17-cv-04642-WHO Document 145 Filed 10/05/18 Page 49 of 61
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

Case 3:17-cv-04642-WHO Document 145 Filed 10/05/18 Page 50 of 61

United States District Court Northern District of California

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

Case 3:17-cv-04642-WHO Document 145 Filed 10/05/18 Page 51 of 61

United States District Court Northern District of California

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.”).

51

Case 3:17-cv-04642-WHO Document 145 Filed 10/05/18 Page 52 of 61

United States District Court Northern District of California

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

Case 3:17-cv-04642-WHO Document 145 Filed 10/05/18 Page 53 of 61

United States District Court Northern District of California

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

Case 3:17-cv-04642-WHO Document 145 Filed 10/05/18 Page 54 of 61

United States District Court Northern District of California

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

Case 3:17-cv-04642-WHO Document 145 Filed 10/05/18 Page 55 of 61

United States District Court Northern District of California

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

Case 3:17-cv-04642-WHO Document 145 Filed 10/05/18 Page 56 of 61

United States District Court Northern District of California

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

Case 3:17-cv-04642-WHO Document 145 Filed 10/05/18 Page 57 of 61

United States District Court Northern District of California

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

Case 3:17-cv-04642-WHO Document 145 Filed 10/05/18 Page 58 of 61

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

Case 3:17-cv-04642-WHO Document 145 Filed 10/05/18 Page 59 of 61

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

Case 3:17-cv-04642-WHO Document 145 Filed 10/05/18 Page 60 of 61

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

Case 3:17-cv-04642-WHO Document 145 Filed 10/05/18 Page 61 of 61

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-04642-WHO Document 150 Filed 07/20/20 Page 1 of 27

FOR PUBLICATION
UNITED STATES COURT OF APPEALS FOR THE 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.

No. 18-17308
D.C. No. 3:17-cv-04642-
WHO

Case 3:17-cv-04642-WHO Document 150 Filed 07/20/20 Page 2 of 27

2

CITY & COUNTY OF SAN FRANCISCO V. BARR

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. 18-17311
D.C. No. 3:17-cv-04701-
WHO
OPINION

Appeal from the United States District Court for the Northern District of California
William Horsley Orrick, District Judge, Presiding
Argued and Submitted December 2, 2019 San Francisco, California
Filed July 13, 2020
Before: William A. Fletcher, Richard R. Clifton, and Eric D. Miller, Circuit Judges.
Opinion by Judge Clifton

Case 3:17-cv-04642-WHO Document 150 Filed 07/20/20 Page 3 of 27

CITY & COUNTY OF SAN FRANCISCO V. BARR

3

SUMMARY*

Nationwide Injunction
The panel affirmed in part, and vacated in part, the district court’s summary judgment entering declaratory relief for plaintiffs and permanently enjoining the U.S. Department of Justice (“DOJ”) on a nationwide basis from imposing certain conditions for providing funding for state and local criminal justice programs through Edward Byrne Memorial Justice Assistance Grants.
In Fiscal Year 2017, the Attorney General and DOJ announced three new conditions that state and local governments must satisfy to receive Byrne grants: the Access Condition, the Notice Condition, and the Certification Condition. Plaintiffs – the City and County of San Francisco and the State of California – are “sanctuary” jurisdictions, which have enacted laws that limit their employees’ authority to assist in the enforcement of federal immigration laws. Plaintiffs sued to prevent DOJ from denying funding of Byrne grants for their failure to comply with the Access, Notice, and Certification Conditions.
The panel affirmed 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 complied with 8 U.S.C. § 1373, the law on which the Certification Condition was based. The panel upheld the permanent injunction barring
* This summary constitutes no part of the opinion of the court. It has been prepared by court staff for the convenience of the reader.

Case 3:17-cv-04642-WHO Document 150 Filed 07/20/20 Page 4 of 27

4

CITY & COUNTY OF SAN FRANCISCO V. BARR

DOJ from withholding, terminating, or clawing back Byrne funding based on the Challenged Conditions and statutes at issue.

The panel held that the district court abused its discretion in granting nationwide injunctive relief, which was broader than warranted. The panel held that nothing in the record or in the nature of the claims suggested that the relief granted by the district court needed to be extended to state and local governments outside of California, not parties to this litigation, in order to fully shield plaintiffs. The panel vacated the nationwide reach of the permanent injunction and limited its reach to California’s geographic boundaries.

COUNSEL
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

Case 3:17-cv-04642-WHO Document 150 Filed 07/20/20 Page 5 of 27

CITY & COUNTY OF SAN FRANCISCO V. BARR

5

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 PlaintiffAppellee 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 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.

Case 3:17-cv-04642-WHO Document 150 Filed 07/20/20 Page 6 of 27

6

CITY & COUNTY OF SAN FRANCISCO V. BARR

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. 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

Case 3:17-cv-04642-WHO Document 150 Filed 07/20/20 Page 7 of 27

CITY & COUNTY OF SAN FRANCISCO V. BARR

7

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.

OPINION
CLIFTON, Circuit Judge:
The federal government has provided funding for state and local criminal justice 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] 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’

Case 3:17-cv-04642-WHO Document 150 Filed 07/20/20 Page 8 of 27

8

CITY & COUNTY OF SAN FRANCISCO V. BARR

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

Case 3:17-cv-04642-WHO Document 150 Filed 07/20/20 Page 9 of 27

CITY & COUNTY OF SAN FRANCISCO V. BARR

9

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. — (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 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, 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

Case 3:17-cv-04642-WHO Document 150 Filed 07/20/20 Page 10 of 27
10 CITY & COUNTY OF SAN FRANCISCO V. BARR
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.
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

Case 3:17-cv-04642-WHO Document 150 Filed 07/20/20 Page 11 of 27
CITY & COUNTY OF SAN FRANCISCO V. BARR 11
(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
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

Case 3:17-cv-04642-WHO Document 150 Filed 07/20/20 Page 12 of 27
12 CITY & COUNTY OF SAN FRANCISCO V. BARR
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.
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.

Case 3:17-cv-04642-WHO Document 150 Filed 07/20/20 Page 13 of 27
CITY & COUNTY OF SAN FRANCISCO V. BARR 13
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 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
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 AntiMethamphetamine 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.

Case 3:17-cv-04642-WHO Document 150 Filed 07/20/20 Page 14 of 27
14 CITY & COUNTY OF SAN FRANCISCO V. BARR
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-04701WHO, 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 nonparties nationwide.
II. Standard of Review
Decisions regarding matters of law, including issues of statutory interpretation, are reviewed de novo. Ileto v.
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.

Case 3:17-cv-04642-WHO Document 150 Filed 07/20/20 Page 15 of 27
CITY & COUNTY OF SAN FRANCISCO V. BARR 15
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 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 2006, “Congress affirmatively indicated its

Case 3:17-cv-04642-WHO Document 150 Filed 07/20/20 Page 16 of 27
16 CITY & COUNTY OF SAN FRANCISCO V. BARR
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 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
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.

Case 3:17-cv-04642-WHO Document 150 Filed 07/20/20 Page 17 of 27
CITY & COUNTY OF SAN FRANCISCO V. BARR 17
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.
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).

Case 3:17-cv-04642-WHO Document 150 Filed 07/20/20 Page 18 of 27
18 CITY & COUNTY OF SAN FRANCISCO V. BARR
This court recently interpreted § 1373 in United States v. California, 921 F.3d 865 (9th Cir. 2019), cert. denied, 590 U.S. — (U.S. Jun. 15, 2020) (No. 19-532), a decision that was 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 informationsharing 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
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.”

Case 3:17-cv-04642-WHO Document 150 Filed 07/20/20 Page 19 of 27
CITY & COUNTY OF SAN FRANCISCO V. BARR 19
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
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.

Case 3:17-cv-04642-WHO Document 150 Filed 07/20/20 Page 20 of 27
20 CITY & COUNTY OF SAN FRANCISCO V. BARR
DOJ identified as likely violative of § 1373 in a letter to San Francisco.6
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 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
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).

Case 3:17-cv-04642-WHO Document 150 Filed 07/20/20 Page 21 of 27
CITY & COUNTY OF SAN FRANCISCO V. BARR 21
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, 136 S. Ct. 1969, 1978 (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
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.”)).

Case 3:17-cv-04642-WHO Document 150 Filed 07/20/20 Page 22 of 27
22 CITY & COUNTY OF SAN FRANCISCO V. BARR
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 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, 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.

Case 3:17-cv-04642-WHO Document 150 Filed 07/20/20 Page 23 of 27
CITY & COUNTY OF SAN FRANCISCO V. BARR 23
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 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

Case 3:17-cv-04642-WHO Document 150 Filed 07/20/20 Page 24 of 27
24 CITY & COUNTY OF SAN FRANCISCO V. BARR
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, 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 (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,

Case 3:17-cv-04642-WHO Document 150 Filed 07/20/20 Page 25 of 27
CITY & COUNTY OF SAN FRANCISCO V. BARR 25
702 (1979)) (internal quotation marks omitted). Under this rule, the appropriate inquiry would be whether Plaintiffs 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,

Case 3:17-cv-04642-WHO Document 150 Filed 07/20/20 Page 26 of 27
26 CITY & COUNTY OF SAN FRANCISCO V. BARR
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 states within three circuits); E. Bay Sanctuary Covenant v. Barr (E. Bay Transit), Nos. 19-16487, 19-16773, slip. op. (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 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

Case 3:17-cv-04642-WHO Document 150 Filed 07/20/20 Page 27 of 27
CITY & COUNTY OF SAN FRANCISCO V. BARR 27
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.

 
 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