ACCO,(JCx),APPEAL,DISCOVERY,MANADR,RELATED−G,REOPENED
UNITED STATES DISTRICT COURT CENTRAL DISTRICT OF CALIFORNIA (Western Division − Los Angeles)
CIVIL DOCKET FOR CASE #: 2:18−cv−07347−JLS−JC

City of Los Angeles v. Jefferson B. Sessions III et al Assigned to: Judge Josephine L. Staton Referred to: Magistrate Judge Jacqueline Chooljian Related Case: 2:17−cv−07215−JLS−JC
Case in other court: Ninth CCA, 19−55314 Cause: 28:2201 Declaratory Judgment
Plaintiff

Date Filed: 08/22/2018 Jury Demand: None Nature of Suit: 890 Other Statutory Actions Jurisdiction: U.S. Government Defendant

City of Los Angeles

represented by James Patrick Clark Los Angeles City Attorney's Office Affirmative Litigation Division 200 North Main Street Suite 800 Los Angeles, CA 90012 213−978−8347 Fax: 213−978−8312 Email: james.p.clark@lacity.org LEAD ATTORNEY ATTORNEY TO BE NOTICED

Benjamin L Cavataro Covington and Burling LLP One City Center 850 Tenth Street NW Washington, DC 20001 202−662−6000 Fax: 202−778−5018 Email: bcavataro@cov.com PRO HAC VICE ATTORNEY TO BE NOTICED

Dania Minassian Los Angeles City Attorney Office 700 City Hall East 200 North Main Street Los Angeles, CA 90012 213−978−8200 Fax: 213−978−8216 Email: dania.minassian@lacity.org ATTORNEY TO BE NOTICED

David M Zionts Covington and Burling LLP 850 Tenth Street NW Washington, DC 20001 202−662−6000 Fax: 202−662−5987 Email: dzionts@cov.com PRO HAC VICE ATTORNEY TO BE NOTICED

Ivano M Ventresca Covington and Burling LLP Once CityCenter 850 Tenth Street NW Washington, DC 20001 202−662−6000 Fax: 202−662−5987 Email: iventresca@cov.com

PRO HAC VICE ATTORNEY TO BE NOTICED
Jessica Rae Hanson Covington and Burling LLP 1999 Avenue of the Stars Suite 3500 Los Angeles, CA 90067−4643 424−332−4800 Fax: 424−332−4749 Email: jhanson@cov.com ATTORNEY TO BE NOTICED
Kathleen A Kenealy Los Angeles City Attorneys Office City Hall East 200 Norlth Main Street Suite 800 Los Angeles, CA 90012 213−978−8354 Fax: 213−978−8313 Email: kathleen.kenealy@lacity.org ATTORNEY TO BE NOTICED
Michael J Dundas Los Angeles City Attorneys Office City Hall East 200 North Main Street Suite 800 Los Angeles, CA 90012 213−978−8130 Fax: 213−978−8312 Email: mike.dundas@lacity.org ATTORNEY TO BE NOTICED
Mitchell A Kamin Covington and Burling LLP 1999 Avenue of the Stars Suite 3500 Los Angeles, CA 90067−4643 424−332−4800 Fax: 424−332−4749 Email: mkamin@cov.com ATTORNEY TO BE NOTICED
Neema Trivedi Sahni Covington and Burling LLP 1999 Avenue of the Stars Suite 3500 Los Angeles, CA 90067−4643 424−332−4800 Fax: 424−332−4749 Email: nsahni@cov.com ATTORNEY TO BE NOTICED
Valerie L Flores Los Angeles City Attorneys Office City Hall East 200 North Main Street Suite 700 Los Angeles, CA 90012 213−978−8130 Fax: 213−978−2222 Email: valerie.flores@lacity.org ATTORNEY TO BE NOTICED
Michael Nelson Feuer Los Angeles City Attorneys Office Affirmative Litigation Division 200 North Main Street Suite 800 Los Angeles, CA 90012

V. Defendant Jefferson B. Sessions III in his official capacity as Attorney Generalof the United States
Defendant Laura Rogers in her official capacity as Acting Principal Deputy Assistant Attorney General of the Office of Justice Programs Defendant United States Department of Justice
Defendant Matt M. Dummermuth TERMINATED: 10/05/2018
Defendant Matthew G. Whitaker

213−978−8100 Fax: 213−978−8312 Email: mike.feuer@lacity.org ATTORNEY TO BE NOTICED
represented by Daniel Mauler US Department of Justice Civil Division − Federal Programs Branch 1100 L Street NW Washington, DC 20005 202−616−0773 Fax: 202−616−8470 Email: dan.mauler@usdoj.gov LEAD ATTORNEY ATTORNEY TO BE NOTICED
W Scott Simpson US Department of Justice Civil Division 318 South Sixth Street Room 244 Springfield, IL 62701 202−514−3495 Fax: 217−492−4888 Email: scott.simpson@usdoj.gov TERMINATED: 04/19/2019
represented by Daniel Mauler (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
represented by Daniel Mauler (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
W Scott Simpson (See above for address) TERMINATED: 04/19/2019
represented by Daniel Mauler (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
W Scott Simpson (See above for address) TERMINATED: 04/19/2019
represented by Daniel Mauler (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Defendant William P. Barr

W Scott Simpson (See above for address) TERMINATED: 04/19/2019
represented by Daniel Mauler (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
W Scott Simpson (See above for address) TERMINATED: 04/19/2019

Date Filed 08/22/2018
08/22/2018 08/22/2018 08/22/2018 08/22/2018 08/22/2018 08/22/2018
08/22/2018
08/22/2018 08/22/2018 08/22/2018 08/22/2018 08/22/2018 08/22/2018

# Docket Text
1 COMPLAINT Receipt No: 0973−22294513 − Fee: $400, filed by Plaintiff CITY OF LOS ANGELES. (Attachments: # 1 Exhibit A) (Attorney Michael Nelson Feuer added to party CITY OF LOS ANGELES(pty:pla))(Feuer, Michael) (Entered: 08/22/2018)
2 CIVIL COVER SHEET filed by Plaintiff CITY OF LOS ANGELES. (Feuer, Michael) (Entered: 08/22/2018)
3 Request for Clerk to Issue Summons on Complaint (Attorney Civil Case Opening) 1 filed by Plaintiff CITY OF LOS ANGELES. (Feuer, Michael) (Entered: 08/22/2018)
4 Request for Clerk to Issue Summons on Complaint (Attorney Civil Case Opening) 1 filed by Plaintiff CITY OF LOS ANGELES. (Feuer, Michael) (Entered: 08/22/2018)
5 Request for Clerk to Issue Summons on Complaint (Attorney Civil Case Opening) 1 filed by Plaintiff CITY OF LOS ANGELES. (Feuer, Michael) (Entered: 08/22/2018)
6 NOTICE of Related Case(s) filed by Plaintiff CITY OF LOS ANGELES. Related Case(s): 2:17−cv−07215−R (Feuer, Michael) (Entered: 08/22/2018)
7 Notice of Appearance or Withdrawal of Counsel: for attorney Mitchell A Kamin counsel for Plaintiff CITY OF LOS ANGELES. Adding Mitchell A. Kamin as counsel of record for City of Los Angeles for the reason indicated in the G−123 Notice. Filed by Plaintiff City of Los Angeles. (Attorney Mitchell A Kamin added to party CITY OF LOS ANGELES(pty:pla))(Kamin, Mitchell) (Entered: 08/22/2018)
8 Notice of Appearance or Withdrawal of Counsel: for attorney Neema Trivedi Sahni counsel for Plaintiff CITY OF LOS ANGELES. Adding Neema T. Sahni as counsel of record for City of Los Angeles for the reason indicated in the G−123 Notice. Filed by Plaintiff City of Los Angeles. (Attorney Neema Trivedi Sahni added to party CITY OF LOS ANGELES(pty:pla))(Sahni, Neema) (Entered: 08/22/2018)
9 NOTICE OF ASSIGNMENT to District Judge Percy Anderson and Magistrate Judge Michael R. Wilner. (esa) (Entered: 08/22/2018)
10 NOTICE TO PARTIES OF COURT−DIRECTED ADR PROGRAM filed. (esa) (Entered: 08/22/2018)
11 60 DAY Summons issued re Complaint 1 as to defendant Laura Rogers. (esa) (Entered: 08/22/2018)
12 60 DAY Summons issued re Complaint 1 as to defendant Jefferson B. Sessions III. (esa) (Entered: 08/22/2018)
13 60 DAY Summons issued re Complaint 1 as to defendant United States Department of Justice. (esa) (Entered: 08/22/2018)
14 NOTICE OF DEFICIENCIES in Attorney Case Opening. The following error(s) was found: No Notice of Interested Parties has been filed. A Notice of Interested Parties must be filed with every partys first appearance. See Local Rule 7.1−1. Counsel must file a Notice of Interested Parties immediately. Failure to do so may be addressed by judicial action, including sanctions. See Local Rule 83−7. (esa) (Entered: 08/22/2018)

08/22/2018
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08/22/2018
08/23/2018 08/23/2018 08/23/2018 08/23/2018 08/23/2018 08/23/2018 08/23/2018 08/23/2018 08/24/2018

15 NOTICE OF PRO HAC VICE APPLICATION DUE for Non−Resident Attorney David M. Zionts. A document recently filed in this case lists you as an out−of−state attorney of record. However, the Court has not been able to locate any record that you are admitted to the Bar of this Court, and you have not filed an application to appear Pro Hac Vice in this case. Accordingly, within 5 business days of the date of this notice, you must either (1) have your local counsel file an application to appear Pro Hac Vice (Form G−64) and pay the applicable fee, or (2) complete the next section of this form and return it to the court at cacd_attyadm@cacd.uscourts.gov. You have been removed as counsel of record from the docket in this case, and you will not be added back to the docket until your Pro Hac Vice status has been resolved. (esa) (Entered: 08/22/2018)
16 NOTICE OF PRO HAC VICE APPLICATION DUE for Non−Resident Attorney Ivano M. Ventresca. A document recently filed in this case lists you as an out−of−state attorney of record. However, the Court has not been able to locate any record that you are admitted to the Bar of this Court, and you have not filed an application to appear Pro Hac Vice in this case. Accordingly, within 5 business days of the date of this notice, you must either (1) have your local counsel file an application to appear Pro Hac Vice (Form G−64) and pay the applicable fee, or (2) complete the next section of this form and return it to the court at cacd_attyadm@cacd.uscourts.gov. You have been removed as counsel of record from the docket in this case, and you will not be added back to the docket until your Pro Hac Vice status has been resolved. (esa) (Entered: 08/22/2018)
17 NOTICE OF PRO HAC VICE APPLICATION DUE for Non−Resident Attorney Benjamin L. Cavataro. A document recently filed in this case lists you as an out−of−state attorney of record. However, the Court has not been able to locate any record that you are admitted to the Bar of this Court, and you have not filed an application to appear Pro Hac Vice in this case. Accordingly, within 5 business days of the date of this notice, you must either (1) have your local counsel file an application to appear Pro Hac Vice (Form G−64) and pay the applicable fee, or (2) complete the next section of this form and return it to the court at cacd_attyadm@cacd.uscourts.gov. You have been removed as counsel of record from the docket in this case, and you will not be added back to the docket until your Pro Hac Vice status has been resolved. (esa) (Entered: 08/22/2018)
18 NOTICE of Appearance filed by attorney Michael Nelson Feuer on behalf of Plaintiff City of Los Angeles (Feuer, Michael) (Entered: 08/23/2018)
19 NOTICE of Appearance filed by attorney James Patrick Clark on behalf of Plaintiff City of Los Angeles (Attorney James Patrick Clark added to party City of Los Angeles(pty:pla))(Clark, James) (Entered: 08/23/2018)
20 NOTICE of Appearance filed by attorney Valerie L Flores on behalf of Plaintiff City of Los Angeles (Attorney Valerie L Flores added to party City of Los Angeles(pty:pla))(Flores, Valerie) (Entered: 08/23/2018)
21 NOTICE of Appearance filed by attorney Dania Minassian on behalf of Plaintiff City of Los Angeles (Minassian, Dania) (Entered: 08/23/2018)
22 NOTICE of Appearance filed by attorney Michael J Dundas on behalf of Plaintiff City of Los Angeles (Dundas, Michael) (Entered: 08/23/2018)
23 CERTIFICATE OF SERVICE filed by Plaintiff City of Los Angeles, re Summons Issued (Attorney Civil Case Opening) 12 served on August 22, 2018. (Kamin, Mitchell) (Entered: 08/23/2018)
24 CERTIFICATE OF SERVICE filed by Plaintiff City of Los Angeles, re Summons Issued (Attorney Civil Case Opening) 11 served on August 22, 2018. (Kamin, Mitchell) (Entered: 08/23/2018)
25 CERTIFICATE OF SERVICE filed by Plaintiff City of Los Angeles, re Summons Issued (Attorney Civil Case Opening) 13 served on August 22, 2018. (Kamin, Mitchell) (Entered: 08/23/2018)
26 NOTICE OF CLERICAL ERROR Re: Deficiency in Attorney Case Opening 14 . Please disregard as the notice was issued in error. (esa) (Entered: 08/24/2018)

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09/07/2018

27 APPLICATION of Non−Resident Attorney David M. Zionts to Appear Pro Hac Vice on behalf of Plaintiff City of Los Angeles (Pro Hac Vice Fee − $400 Fee Paid, Receipt No. 0973−22314965) filed by Plaintiff City of Los Angeles. (Attachments: # 1 Proposed Order) (Kamin, Mitchell) (Entered: 08/24/2018)
28 CERTIFICATE OF SERVICE filed by Plaintiff City of Los Angeles, re Notice of Assignment to United States Judges(CV−18) − optional html form 9 and Standing Order served on August 23, 2018. (Kamin, Mitchell) (Entered: 08/24/2018)
29 CERTIFICATE OF SERVICE filed by Plaintiff City of Los Angeles, re Notice of Assignment to United States Judges(CV−18) − optional html form 9 and Standing Order served on August 24, 2018. (Kamin, Mitchell) (Entered: 08/24/2018)
30 CERTIFICATE OF SERVICE filed by Plaintiff City of Los Angeles, re Notice of Assignment to United States Judges(CV−18) − optional html form 9 and Standing Order served on August 24, 2018. (Kamin, Mitchell) (Entered: 08/24/2018)
31 APPLICATION of Non−Resident Attorney Benjamin L. Cavataro to Appear Pro Hac Vice on behalf of Plaintiff City of Los Angeles (Pro Hac Vice Fee − $400 Fee Paid, Receipt No. 0973−22318822) filed by Plaintiff City of Los Angeles. (Attachments: # 1 Proposed Order) (Kamin, Mitchell) (Entered: 08/27/2018)
32 ORDER RE TRANSFER PURSUANT TO GENERAL ORDER 16−05−Related Case− filed. Related Case No: 2:17−cv−07215 R(JCx). Case transferred from Judge Percy Anderson and Magistrate Judge Michael R. Wilner to Judge Manuel L. Real and Magistrate Judge Jacqueline Chooljian for all further proceedings. The case number will now reflect the initials of the transferee Judge 2:18−cv−07347 R(JCx). Signed by Judge Manuel L. Real (rn) (Entered: 08/28/2018)
33 APPLICATION of Non−Resident Attorney Ivano M. Ventresca to Appear Pro Hac Vice on behalf of Plaintiff City of Los Angeles (Pro Hac Vice Fee − $400 Fee Paid, Receipt No. 0973−22326985) filed by Plaintiff City of Los Angeles. (Attachments: # 1 Proposed Order) (Kamin, Mitchell) (Entered: 08/28/2018)
34 CERTIFICATE OF SERVICE filed by Plaintiff City of Los Angeles, re Transferring Case purs GO 16−05 (Related Case)(CV 34), 32 and Civil Order Re Notice to Counsel served on August 29, 2018. (Attachments: # 1 Exhibit A − Order Re Notice to Counsel)(Kamin, Mitchell) (Entered: 08/29/2018)
35 ORDER by Judge Manuel L. Real Granting Application of Non−Resident Attorney Ivano M. Ventresca to Appear Pro Hac Vice on behalf of Plaintiff City of Los Angeles, designating Mitchell A. Kamin as local counsel 33 . (gk) (Entered: 08/31/2018)
36 ORDER by Judge Manuel L. Real Granting Application of Non−Resident Attorney Benjamin L. Cavataro to Appear Pro Hac Vice on behalf of Plaintiff City of Los Angeles, designating Mitchell A. Kamin as local counsel 31 . (gk) (Entered: 08/31/2018)
37 PROOF OF SERVICE Executed by Plaintiff City of Los Angeles, upon Defendant Jefferson B. Sessions III served on 8/22/2018, answer due 10/22/2018. Service of the Summons and Complaint were executed upon the United States Attorneys Office by delivering a copy to Genoveva Ortega, Legal Assistant. Service was executed in compliance with Federal Rules of Civil Procedure. Due diligence declaration NOT attached. Registered or certified mail return receipt attached. Original Summons NOT returned. (Kamin, Mitchell) (Entered: 09/07/2018)
38 PROOF OF SERVICE Executed by Plaintiff City of Los Angeles, upon Defendant Laura Rogers served on 8/22/2018, answer due 10/22/2018. Service of the Summons and Complaint were executed upon the United States Attorneys Office by delivering a copy to Genoveva Ortega, Legal Assistant. Service was executed in compliance with Federal Rules of Civil Procedure. Due diligence declaration NOT attached. Registered or certified mail return receipt attached. Original Summons NOT returned. (Kamin, Mitchell) (Entered: 09/07/2018)
39 PROOF OF SERVICE Executed by Plaintiff City of Los Angeles, upon Defendant United States Department of Justice served on 8/22/2018, answer due 10/22/2018. Service of the Summons and Complaint were executed upon the United States

10/05/2018 10/05/2018 10/09/2018 10/12/2018 10/17/2018
10/29/2018 11/08/2018 11/13/2018
11/13/2018

Attorneys Office by delivering a copy to Genoveva Ortega, Legal Assistant. Service was executed in compliance with Federal Rules of Civil Procedure. Due diligence declaration attached. Registered or certified mail return receipt attached. Original Summons NOT returned. (Kamin, Mitchell) (Entered: 09/07/2018)
40 First AMENDED COMPLAINT against Defendants All Defendants amending Complaint (Attorney Civil Case Opening) 1 , filed by Plaintiff City of Los Angeles (Attachments: # 1 Exhibit A, # 2 Exhibit B)(Kamin, Mitchell) (Entered: 10/05/2018)
41 NOTICE OF MOTION AND MOTION for Partial Summary Judgment as to Counts One, Two, Three and Four filed by Plaintiff City of Los Angeles. Motion set for hearing on 11/5/2018 at 10:00 AM before Judge Manuel L. Real. (Attachments: # 1 Memorandum, # 2 Declaration of Jeff Gorell, # 3 Declaration of Arif Alikhan, # 4 Request for Judicial Notice, # 5 Statement of Uncontroverted Facts, # 6 Proposed Order) (Kamin, Mitchell) (Entered: 10/05/2018)
42 ORDER by Judge Manuel L. Real Granting Application of Non−Resident Attorney David M. Zionts to Appear Pro Hac Vice on behalf of Plaintiff City of Los Angeles, designating Mitchell A. Kamin as local counsel 27 . (gk) (Entered: 10/10/2018)
43 STIPULATION for Order Regarding Schedule filed by Defendants Jefferson B. Sessions III, United States Department of Justice, Matt M. Dummermuth. (Attachments: # 1 Proposed Order)(Attorney W Scott Simpson added to party Jefferson B. Sessions III(pty:dft), Attorney W Scott Simpson added to party United States Department of Justice(pty:dft), Attorney W Scott Simpson added to party Matt M. Dummermuth (pty:dft))(Simpson, W) (Entered: 10/12/2018)
44 ORDER REGARDING SCHEDULE by Judge Manuel L. Real: Upon Stipulation 43 , IT IS HEREBY ORDERED that the following schedule is established for this action: Deadline for defendants' opposition to plaintiff's motion for partial summary judgment (or, alternatively, for preliminary injunction) 41 and for defendants' response to First Amended Complaint is 11/13/2018. Deadline for plaintiffs' reply in support of motion for partial summary judgment (or, alternatively, for preliminary injunction) and for plaintiffs' opposition to defendants' motion to dismiss, if any, is 12/4/2018. Deadline for defendants' reply in support of motion to dismiss, if any, is 12/17/2018. Oral argument on plaintiff's motion for partial summary judgment (or, alternatively, for preliminary injunction) 41 and on defendants' motion to dismiss, if any, on 1/7/2019 at 10:00 AM before Judge Manuel L. Real. (gk) (Entered: 10/18/2018)
45 Notice of Appearance or Withdrawal of Counsel: for attorney Jessica Rae Hanson counsel for Plaintiff City of Los Angeles. Adding Jessica R. Hanson as counsel of record for City of Los Angeles for the reason indicated in the G−123 Notice. Filed by Plaintiff City of Los Angeles. (Attorney Jessica Rae Hanson added to party City of Los Angeles(pty:pla))(Hanson, Jessica) (Entered: 10/29/2018)
46 STIPULATION to Exceed Page Limitation as to Defendants' Dispositive Motion and Plaintiff's Opposition filed by Defendants Matt M. Dummermuth, United States Department of Justice, Matthew G. Whitaker. (Attachments: # 1 Proposed Order)(Attorney W Scott Simpson added to party Matthew G. Whitaker(pty:dft))(Simpson, W) (Entered: 11/08/2018)
47 NOTICE of Filing of Administrative Record filed by Defendants Matt M. Dummermuth, United States Department of Justice, Matthew G. Whitaker. (Attachments: # 1 Admin. Record Part 1, # 2 Admin. Record Part 2, # 3 Admin. Record Part 3, # 4 Admin. Record Part 4, # 5 Admin. Record Part 5, # 6 Admin. Record Part 6, # 7 Admin. Record Part 7, # 8 Admin. Record Part 8, # 9 Admin. Record Part 9, # 10 Admin. Record Part 10, # 11 Admin. Record Part 11, # 12 Admin. Record Part 12, # 13 Admin. Record Part 13, # 14 Admin. Record Part 14, # 15 Admin. Record Part 15, # 16 Admin. Record Part 16, # 17 Admin. Record Part 17, # 18 Admin. Record Part 18)(Simpson, W) (Entered: 11/13/2018)
48 OPPOSITION to NOTICE OF MOTION AND MOTION for Partial Summary Judgment as to Counts One, Two, Three and Four 41 filed by Defendants Matt M. Dummermuth, United States Department of Justice, Matthew G. Whitaker. (Attachments: # 1 Declaration of Caren Harp, # 2 Defendants' Request for Judicial Notice)(Simpson, W) (Entered: 11/13/2018)

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49 NOTICE OF MOTION AND MOTION to Dismiss Plaintiff's Claims , NOTICE OF MOTION AND MOTION for Partial Summary Judgment as to Plaintiff's Claims filed by Defendants Matt M. Dummermuth, United States Department of Justice, Matthew G. Whitaker. Motion set for hearing on 1/7/2019 at 10:00 AM before Judge Manuel L. Real. (Attachments: # 1 Declaration of Caren Harp, # 2 Defendants Request for Judicial Notice, # 3 Statement of Uncontroverted Facts, # 4 Proposed Order) (Simpson, W) (Entered: 11/13/2018)
50 ORDER REGARDING PAGE LIMITATION by Judge Manuel L. Real: Upon Stipulation 46 , IT IS HEREBY ORDERED (1) that defendants may file a combined dispositive motion and opposition to plaintiff's dispositive motion totaling no more than 32 pages, and (2) that plaintiff may file a combined opposition to defendants' dispositive motion and reply in support of plaintiff's dispositive motion totaling no more than 32 pages. (gk) (Entered: 11/14/2018)
51 NOTICE of Lodging filed by Defendants Matt M. Dummermuth, United States Department of Justice, Matthew G. Whitaker. (Simpson, W) (Entered: 11/19/2018)
52 REPLY in support of NOTICE OF MOTION AND MOTION for Partial Summary Judgment as to Counts One, Two, Three and Four 41 and Opposition to Defendants' Motion for Partial Dismissal or, in the Alternative, for Partial Summary Judgment filed by Plaintiff City of Los Angeles. (Feuer, Michael) (Entered: 12/04/2018)
53 RESPONSE filed by Plaintiff City of Los Angeles to Defendants' Statement of Uncontroverted Facts [49−3] (Feuer, Michael) (Entered: 12/04/2018)
54 OPPOSITION re: NOTICE OF MOTION AND MOTION to Dismiss Plaintiff's Claims NOTICE OF MOTION AND MOTION for Partial Summary Judgment as to Plaintiff's Claims 49 and Reply in Support of Motion for Partial Summary Judgment 41 filed by Plaintiff City of Los Angeles. (Feuer, Michael) (Entered: 12/04/2018)
55 REPLY in Support NOTICE OF MOTION AND MOTION to Dismiss Plaintiff's Claims NOTICE OF MOTION AND MOTION for Partial Summary Judgment as to Plaintiff's Claims 49 filed by Defendants Matt M. Dummermuth, United States Department of Justice, Matthew G. Whitaker. (Simpson, W) (Entered: 12/17/2018)
56 NOTICE of Appearance filed by attorney Kathleen A Kenealy on behalf of Plaintiff City of Los Angeles (Attorney Kathleen A Kenealy added to party City of Los Angeles(pty:pla))(Kenealy, Kathleen) (Entered: 12/27/2018)
57 APPLICATION to Stay Case pending in Light of Lapse of Appropriations filed by Defendants Matt M. Dummermuth, United States Department of Justice, Matthew G. Whitaker. (Attachments: # 1 Proposed Order) (Simpson, W) (Entered: 12/27/2018)
58 TEXT ONLY SCHEDULING ORDER by Judge Manuel L. Real. Counsel are notified that the hearings on Plaintiff City of Los Angeles' Motion for Partial Summary Judgment as to Counts One, Two, Three and Four 41 , and Defendants Matt M. Dummermuth, United States Department of Justice, Matthew G. Whitaker's Motion for Partial Dismissal or Partial Summary Judgment 49 , set for January 7, 2019 are vacated and off calendar. Both motions are taken under submission. IT IS SO ORDERED. THERE IS NO PDF DOCUMENT ASSOCIATED WITH THIS ENTRY. (cch) TEXT ONLY ENTRY (Entered: 01/02/2019)
59 ORDER ON DEFENDANTS' APPLICATION FOR STAY OF PROCEEDINGS by Judge Manuel L. Real: The Court hereby GRANTS Defendants' Application for a Stay of Proceedings 57 . All proceedings in this action are STAYED pending further order of the Court. Counsel for the defendants will notify the Court once Congress has appropriated funds for the Department of Justice. (gk) (Entered: 01/08/2019)
60 NOTICE Restoration of Appropriations filed by Defendants Matt M. Dummermuth, United States Department of Justice, Matthew G. Whitaker. (Simpson, W) (Entered: 01/29/2019)
61 TEXT ONLY ORDER by Judge Manuel L. Real. Upon Defendants' Notice to the Court of Restorations of Appropriations filed January 29, 2019 (Dkt. No. 60), the stay in this matter is lifted. IT IS SO ORDERED. THERE IS NO PDF DOCUMENT ASSOCIATED WITH THIS ENTRY. (cch) TEXT ONLY ENTRY (Entered: 02/15/2019)

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62 ORDER GRANTING PLAINTIFF'S MOTION FOR PARTIAL SUMMARY JUDGMENT AND DENYING DEFENDANTS' MOTION FOR PARTIAL DISMISSAL OR PARTIAL SUMMARY JUDGMENT by Judge Manuel L. Real: IT IS HEREBY ORDERED that Plaintiff's Motion for Summary Judgment as to Count One 41 is GRANTED. IT IS HEREBY FURTHER ORDERED that the remaining claims are moot. IT IS HEREBY FURTHER ORDERED that Defendants' Motion for Partial Dismissal or Partial Summary Judgment 49 is DENIED. IT IS HEREBY FURTHER ORDERED that Defendants are permanently enjoined from imposing the Conditions on FY 2018 Byrne JAG awards and Gang Suppression Grant Program. (gk) (Entered: 02/15/2019)
63 NOTICE OF APPEAL to the 9th Circuit Court of Appeals filed by Defendants Matt M. Dummermuth, United States Department of Justice, William P. Barr. Appeal of Order on Motion for Partial Summary Judgment,,, Order on Motion to Dismiss,,,,, 62 . (Appeal Fee − Not Required for US Goverment.) (Simpson, W) (Entered: 03/13/2019)
64 NOTICE OF MOTION AND MOTION to Stay pending Appeal Order on Motion for Partial Summary Judgment,,, Order on Motion to Dismiss,,,,, 62 filed by Defendants William P. Barr, Matt M. Dummermuth, United States Department of Justice. Motion set for hearing on 4/15/2019 at 10:00 AM before Judge Manuel L. Real. (Attorney W Scott Simpson added to party William P. Barr(pty:dft)) (Simpson, W) (Entered: 03/13/2019)
65 APPLICATION to Waive Seven−Day Requirement under Local Rule 7−3 filed by Defendants William P. Barr, Matt M. Dummermuth, United States Department of Justice. (Simpson, W) (Entered: 03/13/2019)
66 NOTIFICATION from Ninth Circuit Court of Appeals of case number assigned and briefing schedule. Appeal Docket No. 19−55314 assigned to Notice of Appeal to 9th Circuit Court of Appeals 63 as to Defendants William P. Barr, Matt M. Dummermuth, United States Department of Justice. (gk) (Entered: 03/20/2019)
67 NOTICE OF NON−OPPOSITION to NOTICE OF MOTION AND MOTION to Stay pending Appeal Order on Motion for Partial Summary Judgment,,, Order on Motion to Dismiss,,,,, 62 64 filed by Plaintiff City of Los Angeles. (Kamin, Mitchell) (Entered: 03/28/2019)
68 NOTICE OF LODGING filed with Proposed Order re NOTICE OF MOTION AND MOTION to Stay pending Appeal Order on Motion for Partial Summary Judgment,,, Order on Motion to Dismiss,,,,, 62 64 (Attachments: # 1 Proposed Order)(Simpson, W) (Entered: 04/03/2019)
69 Joint NOTICE OF MOTION AND MOTION for Ruling (Indicative Ruling under Federal Rule of Civil Procedure 62.1) filed by Defendants William P. Barr, Matt M. Dummermuth, United States Department of Justice. Motion set for hearing on 5/6/2019 at 10:00 AM before Judge Manuel L. Real. (Attachments: # 1 Proposed Order) (Simpson, W) (Entered: 04/05/2019)
70 TEXT ONLY SCHEDULING ORDER by Judge Manuel L. Real, The Court has determined that Motion to Stay pending Appeal Order on Motion for Partial Summary Judgment filed by Defendants William P. Barr, Matt M. Dummermuth, United States Department of Justice 64 set for hearing on April 15, 2019 at 10:00 A.M. is suitable for a decision on the papers as filed by all parties without the need for oral argument. Therefore, the said motion is taken UNDER SUBMISSION on the papers as filed and the hearing date of April 15, 2019 is VACATED and TAKEN OFF CALENDAR. The Court will issue its ruling on the matter in due course. IT IS SO ORDERED. THERE IS NO PDF DOCUMENT ASSOCIATED WITH THIS ENTRY. (dbu) TEXT ONLY ENTRY (Entered: 04/09/2019)
71 Notice of Appearance or Withdrawal of Counsel: for attorney Daniel Mauler counsel for Defendants William P. Barr, Matt M. Dummermuth, Laura Rogers, Jefferson B. Sessions III, United States Department of Justice, Matthew G. Whitaker. Adding Daniel D. Mauler as counsel of record for William P. Barr, Matt M. Dummermuth, United States Department of Justice for the reason indicated in the G−123 Notice. W. Scott Simpson is no longer counsel of record for the aforementioned party in this case for the reason indicated in the G−123 Notice. Filed by Defendants William P. Barr, Matt M. Dummermuth, and U.S. Department of Justice. (Attorney Daniel Mauler

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added to party William P. Barr(pty:dft), Attorney Daniel Mauler added to party Matt M. Dummermuth (pty:dft), Attorney Daniel Mauler added to party Laura Rogers(pty:dft), Attorney Daniel Mauler added to party Jefferson B. Sessions III(pty:dft), Attorney Daniel Mauler added to party United States Department of Justice(pty:dft), Attorney Daniel Mauler added to party Matthew G. Whitaker(pty:dft))(Mauler, Daniel) (Entered: 04/19/2019)
72 ORDER FOR PARTIAL STAY OF INJUNCTION PENDING APPEAL by Judge Manuel L. Real: Defendants' Motion for Partial Stay of Injunction Pending Appeal 64 is GRANTED. IT IS HEREBY ORDERED, that (1) this Court's injunction of the challenged requirements in the Gang Suppression program for FY 2018 is hereby STAYED in its entirety pending appeal, and (2) this Court's injunction of the challenged requirements in the Byrne JAG Program for FY 2018 is hereby STAYED pending appeal, except in relation to the plaintiff. (gk) (Entered: 04/19/2019)
73 TEXT ONLY SCHEDULING ORDER by Judge Manuel L. Real, The Court has determined that Motion for Ruling (Indicative Ruling under Federal Rule of Civil Procedure 62.1) filed by Defendants William P. Barr, Matt M. Dummermuth, United States Department of Justice 69 set for hearing on May 6, 2019 at 10:00 A.M. is suitable for a decision on the papers as filed by all parties without the need for oral argument. Therefore, the said motion is taken UNDER SUBMISSION on the papers as filed and the hearing date of May 6, 2019 is VACATED and TAKEN OFF CALENDAR. The Court will issue its ruling on the matter in due course. IT IS SO ORDERED. THERE IS NO PDF DOCUMENT ASSOCIATED WITH THIS ENTRY. (dbu) TEXT ONLY ENTRY (Entered: 04/26/2019)
74 ORDER ON JOINT MOTION FORINDICATIVE RULING 69 by Judge Manuel L. Real: The Court concludes that the parties motion should be, and it hereby is, GRANTED. (SEE ORDER FOR FURTHER DETAILS) (yl) (Entered: 05/13/2019)
75 ORDER from Ninth Circuit Court of Appeals filed re: Notice of Appeal to 9th Circuit Court of Appeals 63 filed by Matt M. Dummermuth, United States Department of Justice, William P. Barr. CCA # 19−55314. The parties' joint motion for a limited remand is granted. This appeal is remanded to the district court for the limited purpose of enabling the district court to consider the parties' joint motion for vacatur. See document for further details. (gk) (Entered: 05/22/2019)
76 Joint NOTICE OF MOTION AND MOTION to Vacate Order on Motion for Partial Summary Judgment,,, Order on Motion to Dismiss,,,,, 62 (Joint Motion on Behalf of All Parties) filed by Defendants William P. Barr, Matt M. Dummermuth, United States Department of Justice. Motion set for hearing on 6/17/2019 at 10:00 AM before Judge Manuel L. Real. (Attachments: # 1 Proposed Order) (Mauler, Daniel) (Entered: 05/31/2019)
77 TEXT ONLY SCHEDULING ORDER RE: JOINT MOTION TO PARTIALLY VACATE JUDGMENT (DKT. NO. 76 ) by Judge Manuel L. Real. The parties set the motion hearing date on a date that violates Local Rule 6.1. The Court hereby RE−SETS the parties' Joint Motion to Partially Vacate Judgment Pursuant to Fed.R.Civ.P.60(b) (Dkt. No. 76 ) on MONDAY, JULY 1, 2019 AT 10:00 a.m. Counsel shall appear on the new date and time in Courtroom 880 on the 8th Floor of the Edward R. Roybal Federal Building and United States Courthouse, 255 East Temple Street, Los Angeles, CA 90012. IT IS SO ORDERED. THERE IS NO PDF DOCUMENT ASSOCIATED WITH THIS ENTRY. (cch) TEXT ONLY ENTRY (Entered: 06/06/2019)
78 TEXT ONLY SCHEDULING ORDER by Judge Manuel L. Real, The Court has determined that Motion to Vacate Order on Motion for Partial Summary Judgment filed by Defendants William P. Barr, Matt M. Dummermuth, United States Department of Justice 76 set for hearing on July 1, 2019 at 10:00 A.M. is suitable for a decision on the papers as filed by all parties without the need for oral argument. Therefore, the said motion is taken UNDER SUBMISSION on the papers as filed and the hearing date of July 1, 2019 is VACATED and TAKEN OFF CALENDAR. The Court will issue its ruling on the matter in due course. IT IS SO ORDERED. THERE IS NO PDF DOCUMENT ASSOCIATED WITH THIS ENTRY. (dbu) TEXT ONLY ENTRY (Entered: 06/26/2019)

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79 ORDER ON JOINT MOTION FOR PARTIAL VACATUR by Judge R. Gary Klausner: It is hereby ordered that the parties' Joint Motion to Partially Vacate Judgment Pursuant to Fed. R. Civ. P. 60(b) 76 is GRANTED. It is further ordered that the order and injunction entered in this case on 2/15/2019 pursuant to Fed. R. Civ. P. 60(b) 62 , and solely to the extent the order and injunction relate to the Gang Suppression Planning Grants Program for Fiscal Year 2018, is hereby VACATED, provided that nothing in this order affects the aspect of the Court's injunction that concerns the Byrne JAG Program. (gk) (Entered: 07/02/2019)
80 NOTICE TO COUNSEL AND PARTIES: The Honorable R. Gary Klausner, United States District Judge, will be handling this case pending reassignment. However, counsel and parties shall continue to direct all appropriate oral and written communication to Christine Chung, Courtroom Deputy Clerk to Judge Real. Until reassignment of this case, counsel and parties shall continue to send mandatory chambers copies of all electronically filed documents, to courtroom 880 on the 8th Floor of the Roybal Federal Building and U.S. Courthouse, 255 East Temple Street, Los Angeles, CA 90012, and send proposed orders to R_chambers@cacd.uscourts.gov. THERE IS NO PDF DOCUMENT ASSOCIATED WITH THIS ENTRY. (cch) TEXT ONLY ENTRY (Entered: 07/31/2019)
81 STIPULATION for Order Setting Briefing Schedule and Hearing Date on, and Extending Page Limitations for, Parties' Forthcoming Cross Motions for Partial Summary Judgment filed by Plaintiff City of Los Angeles. (Attachments: # 1 Proposed Order)(Sahni, Neema) (Entered: 08/16/2019)
82 NOTICE OF MOTION AND MOTION for Partial Summary Judgment as to Counts Five, Six, Seven and Eight of First Amended Complaint and Permanent Injunction filed by Plaintiff City of Los Angeles. Motion set for hearing on 11/18/2019 at 09:00 AM before Judge Manuel L. Real. (Attachments: # 1 Memorandum in Support of Motion for Partial Summary Judgment, # 2 Declaration of Robert N. Arcos, # 3 Declaration of Stella Larracas, # 4 Statement of Uncontroverted Facts, # 5 Proposed Order) (Feuer, Michael) (Entered: 08/21/2019)
83 ORDER DENYING WITHOUT PREJUDICE STIPULATION SETTING BRIEFING SCHEDULE AND HEARING DATE ON CROSS−MOTIONS FOR PARTIAL SUMMARY JUDGMENT AND GRANTING EXTENSION ON PAGE LIMITATIONS by Judge R. Gary Klausner. DENIED WITHOUT PREJUDICE. See Order. (cch) (Entered: 08/23/2019)
84 SCHEDULING NOTICE AND ORDER by Judge R. Gary Klausner: Counsel and parties are hereby notified that this matter is set for a Scheduling Conference on Monday, September 3, 2019 at 9:30 a.m. before the Honorable R. Gary Klausner in Courtroom 880 of the Roybal Federal Building and U.S. Courthouse, 255 East Temple Street, Los Angeles, CA 90012. Counsel must be present and telephonic appearances are not permitted. Counsel shall file a joint rule 26(f) report including a proposed schedule in this matter, on or before August 28, 2019. THERE IS NO PDF DOCUMENT ASSOCIATED WITH THIS ENTRY. (cch) TEXT ONLY ENTRY (Entered: 08/23/2019)
85 Notice of Clerical Error Re Scheduling Notice and Order (DE 84): Due to a clerical error, September 3, 2019 is incorrectly noted as a Monday. The Scheduling Conference is set on Tuesday, September 3, 2019. THERE IS NO PDF DOCUMENT ASSOCIATED WITH THIS ENTRY. (cch) TEXT ONLY ENTRY (Entered: 08/23/2019)
86 REPORT of Joint Rule 26(f) filed by Plaintiff City of Los Angeles. (Clark, James) (Entered: 08/28/2019)
87 MINUTES OF Scheduling Conference held before Judge R. Gary Klausner: Court and counsel confer. The Court sets the following dates: Bench Trial set for 4/7/2020 09:00 AM. Final Pretrial Conference set for 3/23/2020 09:30 AM. Motion Cut−Off (last day to file) 1/23/2020. Discovery cut−off 1/9/2020. The Court sets the briefing schedule on cross−motions for summary judgment, as proposed by the parties in their Joint Rule 26(f) Report, as follows: Defendants' Opposition to Plaintiffs' Motion for Partial Summary Judgment 82 and Cross−Motion for Summary Judgment 9/20/2019; Plaintiffs' Opposition to Defendants' Cross Motion for Partial Summary and Reply to their Motion for Partial Summary Judgment 10/11/2019; Defendants' Reply to their

09/20/2019
10/11/2019 10/11/2019 10/11/2019 10/17/2019 10/25/2019 11/08/2019 11/08/2019 11/08/2019

Cross−Motion for Partial Summary Judgment 10/25/2019; Hearing on Cross−Motions for Summary Judgment on 11/18/2019 at 10:00 AM. Court Reporter: Sheri Kleeger. (gk) (Entered: 09/05/2019)
88 NOTICE OF MOTION AND MOTION for Partial Summary Judgment as to Counts Five, Six, Seven, and Eight of the Amended Complaint , and Opposition to Plaintiff's Motion for Partial Summary Judgment (ECF No. 82) filed by Defendants William P. Barr, Matt M. Dummermuth, Laura Rogers, Jefferson B. Sessions III, United States Department of Justice, Matthew G. Whitaker. Motion set for hearing on 11/18/2019 at 10:00 AM before Judge R. Gary Klausner. (Attachments: # 1 Defendants' Statement of Uncontroverted Material Facts, # 2 Defendants' Response to Plaintiff's Statement of Uncontroverted Material Facts, # 3 Declaration of Caren Harp, # 4 Proposed Order) (Mauler, Daniel) (Entered: 09/20/2019)
89 OPPOSITION to NOTICE OF MOTION AND MOTION for Partial Summary Judgment as to Counts Five, Six, Seven, and Eight of the Amended Complaint , and Opposition to Plaintiff's Motion for Partial Summary Judgment (ECF No. 82) 88 filed by Plaintiff City of Los Angeles. (Feuer, Michael) (Entered: 10/11/2019)
90 OPPOSITION to NOTICE OF MOTION AND MOTION for Partial Summary Judgment as to Counts Five, Six, Seven, and Eight of the Amended Complaint , and Opposition to Plaintiff's Motion for Partial Summary Judgment (ECF No. 82) 88 Response to Defendants' Statement of Uncontroverted Facts filed by Plaintiff City of Los Angeles. (Feuer, Michael) (Entered: 10/11/2019)
91 REPLY NOTICE OF MOTION AND MOTION for Partial Summary Judgment as to Counts Five, Six, Seven and Eight of First Amended Complaint and Permanent Injunction 82 filed by Plaintiff City of Los Angeles. (Feuer, Michael) (Entered: 10/11/2019)
92 ORDER from Ninth Circuit Court of Appeals filed re: Notice of Appeal to 9th Circuit Court of Appeals, 63 filed by Matt M. Dummermuth, United States Department of Justice, William P. Barr. CCA # 19−55314. Appellants failed to file a status report on October 7, 2019 as required by the July 18, 2019 order. Appellate proceedings are stayed until resolution of City of Los Angeles v. Barr, No. 18−56292, or until further order of the court. Failure to file a status report will terminate the stay of appellate proceedings. [See document for more details.] (mat) (Entered: 10/21/2019)
93 REPLY Reply in Support of Defendants' Motion for Partial Summary Judgment NOTICE OF MOTION AND MOTION for Partial Summary Judgment as to Counts Five, Six, Seven, and Eight of the Amended Complaint , and Opposition to Plaintiff's Motion for Partial Summary Judgment (ECF No. 82) 88 filed by Defendants William P. Barr, Laura Rogers, United States Department of Justice. (Mauler, Daniel) (Entered: 10/25/2019)
94 ORDER from Ninth Circuit Court of Appeals filed re: Notice of Appeal to 9th Circuit Court of Appeals 63 filed by Matt M. Dummermuth, United States Department of Justice, William P. Barr. CCA # 19−55314. These appeals remained stayed pending further order of the 9th Circuit Court of Appeals. See document for further details. (gk) (Entered: 11/12/2019)
96 ORDER from Ninth Circuit Court of Appeals filed re: Notice of Appeal to 9th Circuit Court of Appeals, 63 filed by Matt M. Dummermuth, United States Department of Justice, William P. Barr. CCA # 19−55314. These appeals remained stayed pending further order of this court. Counsel should contact the undersigned by email (stephen_liacouras@ca9.uscourts.gov) within 10 days after this court's decision in City & County of San Francisco v. Barr, Appeal Nos. 18−17308, 18−17311. (mat) (Entered: 11/13/2019)
97 AMENDED ORDER from Ninth Circuit Court of Appeals filed re: Notice of Appeal to 9th Circuit Court of Appeals, 63 filed by Matt M. Dummermuth, United States Department of Justice, William P. Barr. CCA # 19−55314. These appeals remained stayed pending further order of this court. Counsel should contact the undersigned by email (stephen_liacouras@ca9.uscourts.gov) within 10 days after this court's decision in City & County of San Francisco v. Barr, Appeal Nos. 18−17308, 18−17311. (mat) (Entered: 11/13/2019)

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95 SUPPLEMENT to NOTICE OF MOTION AND MOTION for Partial Summary Judgment as to Counts Five, Six, Seven and Eight of First Amended Complaint and Permanent Injunction 82 Notice of Supplemental Authority filed by Plaintiff City of Los Angeles. (Kamin, Mitchell) (Entered: 11/12/2019)
98 SCHEDULING NOTICE TO ALL PARTIES AND ORDER by Judge R. Gary Klausner. The following motions, calendared November 18, 2019, have been taken under submission by the Court: 1) Motion for Partial Summary Judgment as to Counts Five, Six, Seven and Eight of First Amended Complaint and Permanent Injunction filed by Plaintiff City of Los Angeles 82 and 2) Motion for Partial Summary Judgment as to Counts Five, Six, Seven, and Eight of the Amended Complaint, and Opposition to Plaintiff's Motion for Partial Summary Judgment filed by Defendants William P. Barr, Matt M. Dummermuth, Laura Rogers, Jefferson B. Sessions III, United States Department of Justice, Matthew G. Whitaker. 88 . No appearances by counsel are necessary. The Court will issue a ruling after full consideration of properly submitted pleadings. THERE IS NO PDF DOCUMENT ASSOCIATED WITH THIS ENTRY. (dbu) TEXT ONLY ENTRY (Entered: 11/13/2019)
99 RESPONSE filed by Defendants William P. Barr, Matt M. Dummermuth, Laura Rogers, Jefferson B. Sessions III, United States Department of Justice, Matthew G. Whitakerto Supplement(Motion related), 95 (Attachments: # 1 Exhibit A)(Mauler, Daniel) (Entered: 11/14/2019)
100 ORDER OF THE CHIEF JUDGE (#19−094) approved by Judge Virginia A. Phillips. IT IS ORDERED, with the concurrence of the Case Management and Assignment Committee, that the following cases be reassigned from the calendar of Judge Manuel L. Real to the calendar of Judge Josephine L. Staton for all further proceedings. The case number will now reflect the initials of the transferee Judge 2:19−cv−07347 JLS (JCx). (esa) (Entered: 01/06/2020)
101 INITIAL STANDING ORDER FOR CASES ASSIGNED TO JUDGE JOSEPHINE L. STATON. (tg) (Entered: 01/07/2020)
102 SCHEDULING NOTICE by Judge Josephine L. Staton: In light of the pendency of the parties Motions for Partial Summary Judgment (Docs. 82, 88), the Court VACATES the Final Pretrial Conference and Trial. (See Doc. 87.) THERE IS NO PDF DOCUMENT ASSOCIATED WITH THIS ENTRY. (tg) TEXT ONLY ENTRY (Entered: 02/13/2020)

 
 Case 2:18-cv-07347 Document 1 Filed 08/22/18 Page 1 of 33 Page ID #:1

1 MICHAEL N. FEUER, SBN 111529

MITCHELL A. KAMIN, SBN 202788

2

City Attorney JAMES P. CLARK, SBN 64780

NEEMA T. SAHNI, SBN 274240 Covington & Burling LLP

3 Chief Deputy City Attorney

1999 Avenue of the Stars, Suite 3500

4

LEELA A. KAPUR, SBN 125548 Executive Assistant City Attorney

Los Angeles, California 90067-4643 mkamin@cov.com

5 VALERIE L. FLORES, SBN 138572

Telephone: (424) 332-4800

6

Managing Senior Assistant City Attorney MICHAEL DUNDAS, SBN 226930

Facsimile: (424) 332-4749

7 DANIA MINASSIAN, SBN 198928

DAVID M. ZIONTS, pro hac vice

8 Deputy City Attorney 200 North Main Street, City Hall East

application forthcoming IVANO M. VENTRESCA, pro hac vice

9 Suite 800

application forthcoming

10 Los Angeles, California 90012 james.p.clark@lacity.org

BENJAMIN L. CAVATARO, pro hac vice application forthcoming

11 Telephone: (213) 978-8347

Covington & Burling LLP

12 Facsimile: (213) 978-8312

One CityCenter 850 Tenth Street NW

13

Washington, DC 20001

14

dzionts@cov.com

Telephone: (202) 662-6000

15

Facsimile: (202) 662-5987

16 Attorneys for Plaintiff City of Los Angeles

17

UNITED STATES DISTRICT COURT FOR THE CENTRAL DISTRICT OF CALIFORNIA

18 CITY OF LOS ANGELES,
19

Case No.:

20

Plaintiff,

21

v.

22 JEFFERSON B. SESSIONS, III, in his
23 official capacity as Attorney General of the
24 United States; LAURA ROGERS, in her official capacity as Acting Principal Deputy
25 Assistant Attorney General of the Office of
26 Justice Programs; UNITED STATES DEPARTMENT OF JUSTICE.
27

COMPLAINT FOR DECLARATORY AND INJUNCTIVE RELIEF

28

Defendants.

COMPLAINT

Case 2:18-cv-07347 Document 1 Filed 08/22/18 Page 2 of 33 Page ID #:2

1

INTRODUCTION

2

1. The City of Los Angeles (“Los Angeles” or “City”) files this Complaint

3 seeking declaratory and injunctive relief to prevent the United States Department of

4 Justice (“DOJ” or “Department”) from unconstitutionally seeking to wield authority it

5 does not have to advance policy objectives it cannot lawfully effectuate in such a

6 manner—all at the expense of public safety and community trust in Los Angeles and

7 other communities.

8

2. Numerous courts nationwide already have enjoined DOJ from using federal

9 funding to punish jurisdictions like Los Angeles for refusing to abandon their successful

10 community policing practices—built on engendering community trust—to instead assist

11 in the civil immigration enforcement policy of the Trump Administration.

12

3. The federal funds at issue in this Complaint are Fiscal Year (“FY”) 2018

13 Edward Byrne Memorial Justice Assistance Grant (“Byrne JAG”) funds. 34 U.S.C.

14 § 10152(a)(1). Congress established the Byrne JAG Program specifically to make grants

15 “for use by the State or unit of local government” in order to provide “additional

16 personnel, equipment, supplies, contractual support, training, technical assistance, and

17 information systems for criminal justice.” Id. § 10152(a)(1). Byrne JAG grants are

18 awarded through a statutory formula based on population and rate of violent crime. They

19 are administered by a component of DOJ, the Bureau of Justice Assistance (“BJA”)

20 within DOJ’s Office of Justice Programs.

21

4. Nothing in the Byrne JAG legislation that Congress enacted permits BJA to

22 condition grant funding on a local jurisdiction’s willingness to engage in federal civil

23 immigration enforcement. To the contrary, such conditions are antithetical to the purpose

24 for which Congress created the funding program—that is, to support local criminal

25 justice programs.

26

27

28

1
COMPLAINT

Case 2:18-cv-07347 Document 1 Filed 08/22/18 Page 3 of 33 Page ID #:3

1

5. The FY 2018 Byrne JAG grant application released by DOJ flouts the

2 rationale of an earlier ruling by this Court in a case involving a different federal grant

3 program related to community-oriented policing,1 as well as rulings involving the FY

4 2017 Byrne JAG grant issued by the United States Court of Appeals for the Seventh

5 Circuit and federal district courts in Chicago and Philadelphia.

6

6. Four conditions on the FY 2018 Byrne JAG grant are materially identical to

7 the conditions on the FY 2017 Byrne JAG grants that have been enjoined by the courts.

8 Those conditions require States and localities to: (1) comply with 8 U.S.C. § 1373, which

9 provides that States and localities “may not prohibit, or in any way restrict” government

10 entities and officials from “sending to, or receiving from” the United States Department

11 of Homeland Security (“DHS”) information “regarding the citizenship or immigration

12 status, lawful or unlawful, of any individual”; (2) comply with 8 U.S.C. § 1644, which

13 provides that no States and localities “may be prohibited, or in any way restricted” from

14 “sending to or receiving from” DHS “the immigration status, lawful or unlawful, of an

15 alien in the United States”; (3) provide 48 hours’ advance notice to DHS, “where

16 feasible” and when requested, before releasing an alien from state or local custody; and

17 (4) provide DHS agents with “access to any correctional facility in order to meet with an

18 alien (or an individual believed to be an alien) and inquire as to his right to be or remain

19 in the United States.” Although it did not make this argument in defending the materially

20 identical conditions on the FY 2017 Byrne JAG grants, DOJ suggests that compliance

21 1 Plaintiff here, the City of Los Angeles, previously filed a lawsuit in this District Court
22 challenging FY 2017 Byrne JAG grant conditions, along with conditions on the FY 2017
23 Community Oriented Policing Services (“COPS”) Hiring Program grant, in City of Los Angeles v. Sessions, Case No. 2:17-cv-07215-R-JCx. The Court granted the City’s
24 Motion for Summary Judgment against the immigration-related conditions on the COPS
25 grant causes of action and permanently enjoined DOJ from imposing those conditions in future COPS grant cycles. City of Los Angeles v. Sessions, 293 F. Supp. 3d 1087 (C.D.
26 Cal. 2018), appeal pending. The motion by Los Angeles for a preliminary injunction
27 against similar conditions in the FY 2017 Byrne JAG grant is currently pending.

28

2
COMPLAINT

Case 2:18-cv-07347 Document 1 Filed 08/22/18 Page 4 of 33 Page ID #:4

1 with the third and fourth conditions relating to “Notice” and “Access” is required under

2 various statutory provisions of the INA.

3

7. In addition to re-imposing those conditions for the FY 2018 Byrne JAG

4 application that have previously been enjoined for FY 2017 Byrne JAG grants, the

5 Department of Justice adds new and equally unlawful conditions, mandatory

6 certifications, and a questionnaire, all of which seek to deny funds to jurisdictions like

7 Los Angeles that use their funds and resources for local criminal justice programs rather

8 than to participate in federal civil immigration enforcement.

9

8. The immigration-related conditions, questions, and certifications permeate

10 DOJ’s FY 2018 Byrne JAG grant solicitation and are facially unconstitutional and

11 otherwise unlawful for a number of reasons.

12

9. First, the immigration-related conditions, questions, and certifications

13 violate the constitutional doctrine of separation of powers. The constitutional authority to

14 spend federal government money, and to attach reasonable and lawful terms and

15 conditions to the receipt of federal funds, belongs to Congress, not the Executive Branch.

16 DOJ, as an agency of the Executive Branch, may not unilaterally impose terms on federal

17 grants to States and local governments in the absence of a specific and unambiguous

18 authorization from Congress, which has not occurred with respect to the immigration-

19 related conditions DOJ seeks to attach to FY 2018 Byrne JAG grants. On this basis

20 alone, the new Byrne JAG funding conditions violate the Constitution.

21

10. DOJ’s actions also offend the basic separation of powers principle that an

22 Executive Branch agency has no power to act unless Congress has delegated authority to

23 it. See City & Cty. of San Francisco v. Trump, Nos. 17-17478, 17-17480, 2018 WL

24 3637911, at *4-5 (9th Cir. Aug. 1, 2018) (holding that the Executive Order conditioning

25 all federal funding on compliance with 8 U.S.C. § 1373 is an unlawful attempt by the

26 Trump Administration to “coopt” for itself Congress’s exclusive spending power).

27

11. DOJ’s FY 2018 immigration-related conditions are not authorized by, and

28 indeed are incompatible with, the statute Congress enacted establishing the Byrne JAG

3
COMPLAINT

Case 2:18-cv-07347 Document 1 Filed 08/22/18 Page 5 of 33 Page ID #:5

1 Program because the conditions cannot be reconciled with Congress’s directive that funds

2 be allocated through an explicit funding formula involving only two factors: population

3 and rates of violent crime. DOJ’s conditions also undermine Congress’s express

4 directive that Byrne JAG funds be used only to provide seven types of support for

5 criminal justice, through eight types of specified criminal justice programs. DOJ’s

6 conditions would redirect those funds to State and local law enforcement agencies that

7 participate in federal civil immigration enforcement. Multiple courts have found

8 specifically that DOJ’s efforts to impose immigration-related conditions on Byrne JAG

9 grants “violate the separation of powers doctrine and are ultra vires.” City of Chicago v.

10 Sessions, 264 F. Supp. 3d 933, 943 (N.D. Ill. 2017); City of Philadelphia v. Sessions, 280

11 F. Supp. 3d 579, 659 (E.D. Pa. 2017); City of Chicago v. Sessions, 888 F.3d 272, 293 (7th

12 Cir. 2018); City of Philadelphia v. Sessions, 309 F. Supp. 3d 289, 321, 331 (E.D. Pa.

13 2018); City of Chicago v. Sessions, No. 17 C 5720, 2018 WL 3608564, at *13 (N.D. Ill.

14 July 27, 2018).

15

12. DOJ cannot mount an end-run around these court rulings by now claiming

16 that the same unconstitutional conditions are related to inapplicable statutes. As part of

17 the Byrne JAG application, an applicant must certify that it “will comply with all

18 provisions of this part and all other applicable Federal laws.” 34 U.S.C.

19 § 10153(a)(5)(D) (emphasis added). The federal laws in which DOJ purports to ground

20 its immigration-related conditions are not “applicable” laws under that provision. They

21 have no relevance to the local criminal justice subject matter of the Byrne JAG program.

22 Moreover, they are not valid federal laws, as they are either facially unconstitutional or

23 unconstitutional as DOJ seeks to interpret and apply them here.

24

13. The FY 2018 Byrne JAG application also contravenes Congress’s statutory

25 mandate in 34 U.S.C. § 10228 prohibiting DOJ’s use of the Byrne JAG statute to

26 “exercise any direction, supervision, or control over any police force or any other

27 criminal justice agency of any State or any political subdivision thereof.”

28

4
COMPLAINT

Case 2:18-cv-07347 Document 1 Filed 08/22/18 Page 6 of 33 Page ID #:6

1

14. Second, even if the FY 2018 solicitation’s immigration-related conditions

2 had been imposed by Congress rather than DOJ, they would be unconstitutional under the

3 Spending Clause and Tenth Amendment to the United States Constitution, which limit

4 the power of the federal government to restrict federal funding for the States (and their

5 municipalities) based on matters of law and policy that are properly reserved to the

6 States.

7

15. When Congress attaches new terms to federal funds, it must meet several

8 requirements to ensure that it is not abusing its spending power to improperly regulate

9 State and local officials. Under the Spending Clause, terms that Congress imposes on use

10 of federal funds by a State or local government must be unambiguous and sufficiently

11 related to the purpose of those federal funds. Congress created the Byrne JAG Program

12 for the express purpose of funding local criminal justice efforts through statutorily-

13 specified types of support and programs. DOJ’s immigration-related conditions do not

14 relate to that purpose or to the types of support and programs listed in the statute. Rather,

15 DOJ is attempting to use the Byrne JAG grant to reward localities that participate in

16 federal civil immigration enforcement, and punish those that do not. In addition, certain

17 of the conditions included in the FY 2018 Byrne JAG solicitation are so ambiguous as to

18 make it difficult for Los Angeles to ascertain what is expected of it.

19

16. Third, the conditions and certifications in the FY 2018 Byrne JAG grant

20 application are a clear indication that DOJ unconstitutionally seeks to commandeer local

21 police agencies to enforce federal civil immigration laws, in violation of the Tenth

22 Amendment, confirmed by the recent U.S. Supreme Court decision in Murphy v. NCAA,

23 138 S. Ct. 1461, 1477 (2018) (“The Federal Government may not command [either in the

24 affirmative or through prohibitive language] the States’ officers, or those of their political

25 subdivisions, to administer or enforce a federal regulatory program.” (citation omitted)).

26 Specifically, the FY 2018 Byrne JAG application requires as a condition to receiving

27 funds that the Los Angeles Mayor and City Attorney certify compliance with 8 U.S.C.

28 §§ 1373 and 1644. Both statutes violate the Tenth Amendment by giving direct orders to

5
COMPLAINT

Case 2:18-cv-07347 Document 1 Filed 08/22/18 Page 7 of 33 Page ID #:7

1 State and local governments. See id. at 1476; see also Philadelphia, 309 F. Supp. 3d at

2 331 (holding Section 1373 unconstitutional under the anticommandeering doctrine);

3 Chicago, 2018 WL 3608564, at *13 (same); United States v. California, No. 2:18-cv-

4 490-JAM-KJN, 2018 WL 3301414, at *14 (E.D. Cal. July 5, 2018) (stating that the

5 constitutionality of Section 1373 is “highly suspect”).

6

17. In addition, DOJ requires, as a condition for receiving FY 2018 Byrne JAG

7 funds, that top Los Angeles elected officials certify that they will not “violate, or aid or

8 abet” any violation of 8 U.S.C. § 1324(a) (forbidding knowing “conceal[ing],

9 harbor[ing], or shield[ing] from detection” of an alien), or “impede” the exercise of

10 authority of federal agents under a number of federal statutes including 8 U.S.C §§

11 1226(a),(c), 1231(a)(4), 1357(a)(1), and 1366(1),(3). But those statutes do not concern

12 States or localities and thus have no bearing here. DOJ’s apparent interpretations of

13 those provisions as imposing mandates on State and local governments is an

14 unconstitutional effort to commandeer those States and localities to participate in federal

15 civil immigration enforcement. See Chicago, 888 F.3d at 282; California, 2018 WL

16 3301414, at *19-20.

17

18. These requirements are especially disturbing because they do not exist in a

18 vacuum. High-ranking members of the Trump Administration have publicly proposed

19 arresting local elected officials in jurisdictions that decline to participate in federal civil

20 immigration enforcement. In imposing its “Harboring Condition,” the Justice

21 Department now appears to share the extraordinary view that a State or local

22 government’s unwillingness to be commandeered into participating in federal civil

23 immigration enforcement may be a federal crime.

24

19. In short, the required certifications put elected officials in Los Angeles in the

25 unsustainable position of either: (1) certifying compliance with statutes that are not

26 applicable and could not constitutionally be applicable to the City, and undermining the

27 Los Angeles Police Department’s (“LAPD”) relationship with the immigrant community

28

6
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1 and threatening public safety; or (2) forfeiting FY 2018 Byrne JAG funding used to

2 support local criminal justice efforts through combating gangs and violent crime.

3

20. Fourth, the FY 2018 conditions on grant recipients violate the

4 Administrative Procedure Act (“APA”) because, in promulgating the new conditions,

5 DOJ did not rely on any analysis or findings to support the implicit premise that

6 individuals whom DHS believes may be unlawfully present in the United States commit

7 more crime than do individuals legally resident in the country, and in fact failed to

8 consider the substantial evidence to the contrary. For this reason, DOJ’s attempt to attach

9 the immigration-related conditions to the Byrne JAG grant is arbitrary and capricious in

10 violation of the APA.

11

21. In short, DOJ’s unilateral and unauthorized attempt to hold hostage federal

12 funding that Congress authorized to support State and local criminal justice programs,

13 and to instead cause State and local agencies to assist with federal civil immigration

14 enforcement, is unconstitutional and unlawful, and cannot be allowed to stand. Los

15 Angeles seeks injunctive relief to ensure that DOJ does not evade constitutional

16 restraints, Congressional intent, and judicial rulings protecting federal funding for State

17 and local law enforcement criminal justice efforts.

18

JURISDICTION AND VENUE

19

22. This Court has jurisdiction under 28 U.S.C. §§ 1331 and 1346. The Court

20 also has authority to award the relief requested pursuant to 5 U.S.C. §§ 702, 705, 706,

21 and 28 U.S.C. §§ 2201–2202.

22

23. Venue is proper in this District under 28 U.S.C. § 1391(e) because Plaintiff

23 resides in this District and a substantial part of the events or omissions giving rise to this

24 action occurred in this District.

25

PARTIES

26

24. Plaintiff Los Angeles is a municipal corporation organized and existing

27 under the laws of the State of California, and is a charter city pursuant to Article XI of the

28 California Constitution.

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COMPLAINT

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1

25. Defendant Jefferson B. Sessions, III is the Attorney General of the United

2 States. The Attorney General is charged with the administration and enforcement of

3 federal criminal law and policy, and oversees the U.S. Department of Justice, which

4 administers the Byrne JAG Program. Defendant Sessions has supervisory responsibility

5 and is sued in his official capacity.

6

26. Defendant U.S. Department of Justice is an agency of the United States.

7 The Bureau of Justice Assistance (“BJA”) is a component of the Office of Justice

8 Programs of DOJ (“OJP”). BJA’s stated mission is “to provide leadership and services in

9 grant administration and criminal justice policy development to support local, state, and

10 tribal justice strategies to achieve safer communities.” BJA administers the Byrne JAG

11 Program.

12

27. Defendant Laura Rogers is Acting Principal Deputy Assistant Attorney

13 General of OJP at DOJ and oversees BJA. Defendant Rogers has supervisory

14 responsibility and is sued in her official capacity.

15

FACTUAL ALLEGATIONS

16

A. Policies and Practices of the City of Los Angeles’ Police Department

17

28. For nearly four decades, LAPD has implemented policies and practices

18 designed to promote the public safety of the residents of Los Angeles by engendering

19 cooperation and trust between its law enforcement agencies and officers on the one hand,

20 and members of the City’s many immigrant communities on the other. The fundamental

21 goal of these local policies and practices has been to encourage crime victims and

22 witnesses of criminal conduct to cooperate with LAPD, irrespective of their immigration

23 status. The policy is critical to public safety, especially in Los Angeles, given the size of

24 the immigrant population here. Central to these policies has been the determination by

25 local law enforcement and its civilian overseers to devote local resources to local

26 criminal justice efforts and leave to the federal government the investigation and

27 enforcement of federal civil immigration laws.

28

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1

29. For example, in 1979, LAPD began a policy known as “Special Order 40”—

2 adopted by the Los Angeles Board of Police Commissioners and signed by then-Chief of

3 Police Daryl Gates—that restricts an LAPD officer from initiating a police action with

4 the objective of discovering a person’s immigration status, and also prohibits arrests

5 based solely on that status.

6

30. The policy behind Special Order 40, as expressed by the LAPD Board of

7 Police Commissioners nearly forty years ago, is “the principle that effective law

8 enforcement depends on a high degree of cooperation between the Department and the

9 public it serves.” This policy was adopted to ensure that individuals, regardless of their

10 civil immigration status, would report crimes to the LAPD and assist the LAPD in

11 apprehending and prosecuting those individuals responsible for criminal acts.

12

31. The provisions of Special Order 40, which are reflected in various forms in

13 LAPD’s existing policies and procedures, are also consistent with current federal and

14 State law, because the policy restricts LAPD’s initiating a detention based on an

15 individual’s civil immigration status, and arresting an individual for a misdemeanor

16 violation that did not occur in the officer’s presence.

17

32. The LAPD policies promulgated after Special Order 40 are compliant with

18 existing federal law. In the 2009 case, Sturgeon v. Bratton, the California Court of

19 Appeal rejected a legal challenge to Special Order 40—as set forth in Section 4/264.50 of

20 the LAPD Manual—ruling that the language of the policy does not conflict with 8 U.S.C.

21 § 1373 (“Section 1373”), and is not invalid. As the Court of Appeal recognized, Section

22 1373 addresses certain communications between federal and State or local authorities;

23 Special Order 40 does not address that issue, but rather prohibits police officers from

24 initiating police action to determine immigration status and making arrests for illegal

25 entry. 174 Cal. App. 4th 1407 (Cal. Ct. App. 2009). It has nothing to do with

26 communications between LAPD and federal authorities.

27

33. In 2014, LAPD adopted a practice of refusing to detain individuals,

28 otherwise eligible for release from custody under State law, on the basis of requests from

9
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Case 2:18-cv-07347 Document 1 Filed 08/22/18 Page 11 of 33 Page ID #:11

1 U.S. Immigration and Customs Enforcement (“ICE”) unless the requests are supported by

2 a judicial determination of probable cause, or a valid warrant from a judicial officer. This

3 practice was developed in response to judicial decisions declaring compliance with such

4 warrantless ICE requests to be unconstitutional, and thereby subjecting LAPD to

5 potentially significant liability for violations of the Fourth Amendment. See, e.g.,

6 Miranda-Olivares v. Clackamas County, No. 3:12-cv-02317-ST, 2014 WL 1414305, at

7 *11 (D. Or. Apr. 11, 2014). In addition, this practice supports LAPD’s robust community

8 policing strategy focused on preventing crime through community partnerships,

9 collaborative problem solving, and building public trust consistent with the law—

10 essential components to reducing crime and protecting the public from harm.

11

34. When a member of LAPD arrests an individual in connection with a

12 criminal offense, the arrestee may be cited and released in the field where circumstances

13 warrant, or taken to one of LAPD’s ten jail detention facilities for booking. Those LAPD

14 jail facilities are all categorized by the State of California as Type I facilities, which are

15 local detention facilities used for the temporary, short-term detention of persons who may

16 be held for no more than 96 hours. In practice, persons arrested by members of LAPD

17 generally are kept in LAPD custody for no more than 48 hours after arrest because of the

18 limitations imposed by State law and the Constitution with respect to the period of time

19 within which law enforcement agencies must: 1) obtain a probable cause determination

20 that an arrested individual committed a criminal offense to support the detention of the

21 individual without a warrant; and 2) transfer a detainee to court for arraignment. See Cal.

22 Pen. Code § 825; Cty. of Riverside v. McLaughlin, 500 U.S. 44 (1991).

23

35. In many situations, arrestees are eligible for release from custody within a

24 few hours of arrest and booking, including by posting bail or bond, on their own

25 recognizance, or by a certificate of release.

26

36. While arrestees are in LAPD custody, LAPD permits DHS and ICE

27 personnel access to LAPD detention facilities to interview individual arrestees regarding

28 civil immigration status. LAPD does so consistent with the State statutory requirement

10
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1 that such persons be provided with advance written notice explaining the purpose of the

2 interview, that the interview is voluntary, and that the person may decline to speak or opt

3 to be interviewed only in the presence of his or her attorney. See California TRUTH Act,

4 Cal. Gov. Code § 7283 et seq. (“California TRUTH Act”). LAPD implements this State

5 law by obtaining a written expression of the arrestee’s willingness prior to the interview.

6 If the arrestee declines the interview, LAPD does not provide DHS and ICE personnel

7 access to that individual in its facilities.

8

B. The Edward Byrne Memorial Justice Assistance Grant Program

9

37. Congress established the Byrne JAG Program to make grants “for use by the

10 State or unit of local government” in order to provide seven types of support for criminal

11 justice efforts, i.e., “additional personnel, equipment, supplies, contractual support,

12 training, technical assistance, and information systems for criminal justice.” 34 U.S.C.

13 § 10152(a)(1). Congress specified that these funds be used “for any one or more of the

14 following programs”:

15

• “Law enforcement programs.”

16

• “Prosecution and court programs.”

17

• “Prevention and education programs.”

18

• “Corrections and community corrections programs.”

19

• “Drug treatment and enforcement programs.”

20

• “Planning, evaluation, and technology improvement programs.”

21

• “Crime victim and witness programs (other than compensation).”

22

• “Mental health programs and related law enforcement and corrections

23

programs, including behavioral programs and crisis intervention teams.”

24 Id. § 10152(a)(1)(A)-(H).

25

38. Byrne JAG funding is administered by BJA within OJP. See id. §§ 10151-

26 58. Each fiscal year, BJA provides State and local government awardees with funds that,

27 in general, may be used over a period of four years.

28

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Case 2:18-cv-07347 Document 1 Filed 08/22/18 Page 13 of 33 Page ID #:13

1

39. In awarding funds, BJA must follow the congressionally-mandated formula

2 to allocate funds to eligible States and local governments. By statute, funding is allocated

3 based on two factors: population and rate of violent crime. The Attorney General must

4 allocate 50 percent of the available funds to each State recipient in amounts proportionate

5 to its population and its crime statistics. Id. § 10156(a). The remaining 50 percent of the

6 funds is allocated to each State recipient in amounts proportionate to its rate of violent

7 crime. Id. Of the total amount allocated to a State, 60 percent is provided as a direct

8 grant to the State, and 40 percent as grants for local governments in that State. Id. §

9 10156(b)(2), (d).

10

40. Local governments wishing to receive a grant must submit an award

11 application to BJA. In order to be eligible for an award, Congress specified that an

12 applicant must furnish certain reasonable and grant-specific certifications and assurances

13 related to the application or administration of the grant. Specifically, Congress

14 enumerated two certifications and three assurances that an applicant must make:

15

• “A certification that Federal funds made available under this part will not be

16

used to supplant State or local funds, but will be used to increase the

17

amounts of such funds that would, in the absence of Federal funds, be made

18

available for law enforcement activities.” Id. § 10153(a)(1).

19

• “An assurance that, not fewer than 30 days before the application (or any

20

amendment to the application) was submitted to the Attorney General, the

21

application (or amendment) was submitted for review to the governing body

22

of the State or unit of local government (or to an organization designated by

23

that governing body).” Id. § 10153(a)(2).

24

• “An assurance that, before the application (or any amendment to the

25

application) was submitted to the Attorney General (A) the application (or

26

amendment) was made public; and (B) an opportunity to comment on the

27

application (or amendment) was provided to citizens and to neighborhood or

28

12
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Case 2:18-cv-07347 Document 1 Filed 08/22/18 Page 14 of 33 Page ID #:14

1

community-based organizations, to the extent applicable law or established

2

procedure makes such an opportunity available.” Id. § 10153(a)(3).

3

• “An assurance that, for each fiscal year covered by an application, the

4

applicant shall maintain and report such data, records, and information

5

(programmatic and financial) as the Attorney General may reasonably

6

require.” Id. § 10153(a)(4).

7

• “A certification . . . that (A) the programs to be funded by the grant meet all

8

the requirements of this part; (B) all the information contained in the

9

application is correct; (C) there has been appropriate coordination with

10

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

11

this part and all other applicable Federal laws.” Id. § 10153(a)(5).

12

41. Byrne JAG applications are accepted through an online program. In order to

13 complete the application, a representative of the applicant is required to electronically

14 sign a page stating that the applicant will comply with standard “assurances” promulgated

15 by the Office of Management and Budget. These assurances include that, “throughout

16 the period of performance for the award,” “the Applicant will comply with all award

17 requirements.”

18

42. When BJA approves an application for a Byrne JAG award, BJA requires

19 the recipient to agree to an additional set of “Special Conditions.” These conditions

20 generally relate to the administration of the grant or the use of grant funds. The “Special

21 Conditions” imposed in Los Angeles’ fiscal year FY 2016 grant award (the last year in

22 which Byrne JAG funds were released to Los Angeles) governed various aspects of how

23 the City would be required to administer its Byrne JAG award, such as a “[r]equirement

24 for data on performance and effectiveness under the award,” “[r]equirements related to

25 System for Award Management and Unique Entity Identifiers,” compliance with civil

26 rights and nondiscrimination regulations in the administration of the award, and reporting

27 of any fraud, waste, and abuse in the award implementation.

28

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1

C. The City of Los Angeles Uses Byrne JAG Funds For Critical Local

Criminal Justice Needs

2

3

43. Each year since 1997 (with the exception of FY 2017, which is currently the

4 subject of a related case pending in this District), the City of Los Angeles has been

5 approved for and received more than $1 million in funding under the Byrne JAG Program

6 (and its predecessor).

7

44. In the FY 2016 application cycle, Los Angeles applied for and received

8 approximately $1.8 million in Byrne JAG funding for FY 2016 through FY 2019.

9 Approximately $800,000 of the funding went to the County of Los Angeles as a

10 subgrantee, and $1 million remained with the City. For FY 2016, Los Angeles received

11 its funding directly from the federal government as part of a formula grant, see 34 U.S.C.

12 § 10156(d), not as a distribution from the Byrne JAG funds awarded separately to the

13 State of California.

14

45. Byrne JAG funds support important criminal justice programs in Los

15 Angeles. Specifically, the City’s FY 2016 Byrne JAG funds assist in funding its

16 Community Law Enforcement and Recovery (“CLEAR”) program, which aims to reduce

17 gang violence in Los Angeles and rehabilitate communities that have experienced

18 significant criminal activity. Through effective collaboration among several city, county,

19 and state criminal justice agencies, the program targets high-crime areas and promotes

20 community recovery by working closely with special criminal investigative units, an

21 aggressive vertical prosecutorial program, probation and parole officers, youth

22 intervention organizations, and schools.

23

46. The CLEAR program has been successful. In 2014, the CLEAR program

24 areas had 22 percent less gang crime over a three-year period than similar non-CLEAR

25 areas. For FY 2016, the Byrne JAG funds supported 20 to 30 percent of the salaries for

26 nine Deputy City Attorneys, nine Deputy District Attorneys, and nine Deputy Probation

27 officers related to the CLEAR program.

28

14
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1

47. The City’s use of Byrne JAG funds to support the CLEAR program and

2 reduce violent crime advances the core criminal justice mission of the Byrne JAG

3 Program. The CLEAR program’s key to success in reducing violent crime in targeted

4 neighborhoods has been the dedication of various agency assets to the goal of reducing

5 crime in CLEAR sites. Each CLEAR site includes an operational team made up of

6 representatives from LAPD, the County District Attorney’s Office, the City Attorney’s

7 Office, and the County Probation Department. In addition to their focus on reducing

8 crime, the CLEAR team members collaborate with residents within each CLEAR site

9 through the creation of a Community Impact Team. Community members on the team

10 identify effective community organizations in their CLEAR area, and facilitate a

11 relationship between those organizations and CLEAR team members to secure support

12 from individuals and businesses within the community.

13

48. The year-over-year federal funding for the CLEAR program has been a

14 catalyst for turning Los Angeles into a leader on coordinated approaches to seemingly

15 intractable issues related to violent crime in general, and gang-related violence in

16 particular. The CLEAR model was innovative, and went beyond the traditional methods

17 of criminal suppression. It combined, in one program, elements which have been copied

18 by numerous other jurisdictions, and are now a common approach to addressing not only

19 gang violence, but violent crimes generally. These elements, such as vertical prosecution

20 of all cases, regular sharing of best practices from public safety teams in various parts of

21 the City, and community outreach, have significantly informed the creation of other

22 innovative approaches to criminal justice in the City, such as the City Attorney’s

23 neighborhood prosecutor program.

24

49. The City of Los Angeles has yet to receive its statutorily authorized FY 2017

25 Byrne JAG funding. The City has already submitted its application for FY 2018 Byrne

26 JAG funding, in advance of the deadline of August 22, 2018. If the City of Los Angeles

27 were to be deprived of its statutorily authorized FY 2018 Byrne JAG funding as well, Los

28 Angeles would lose valuable resources needed to enhance its local criminal justice efforts

15
COMPLAINT

Case 2:18-cv-07347 Document 1 Filed 08/22/18 Page 17 of 33 Page ID #:17

1 and advance public safety. Consistent Byrne JAG funding ensures that the CLEAR staff 2 can continue to dedicate their time to their roles within the CLEAR team. The funding 3 also ensures that the City’s continued dedication to cross-agency collaboration will pave 4 the way for future successes and innovations still to come.

5

D. Multiple Courts Have Rejected DOJ’s Imposition of Federal Civil

6

Immigration-Related Conditions for FY 2017 Byrne JAG Awards

7

50. In the FY 2017 funding cycle, BJA included immigration-related conditions

8 in its solicitation for the FY 2017 Byrne JAG applications. On August 3, 2017, BJA

9 issued that solicitation for applications from local governments for FY 2017 Byrne JAG

10 grants. One immigration-related condition in the agency’s solicitation stated that

11 applicants were required to certify compliance with Section 1373 in order to qualify for

12 Byrne JAG funding (the “1373 Condition”).2 The FY 2017 Byrne JAG application

13 would not be considered complete without that certification, which meant jurisdictions

14 that were awarded Byrne JAG funds but that did not complete the 1373 Certification

15 would be prohibited from drawing down grant funds.

16

51. Separately, the FY 2017 solicitation stated that the agency’s award would

17 include two other, immigration-related conditions. Those two conditions, referred to

18 below as the “Access Condition” and the “Notice Condition”—as presented in FY 2017

19 Byrne JAG awards that DOJ has already disbursed—required that “as of the date the

20 recipient accepts [its] award,” the recipient must have in place “[a] local ordinance, -rule,

21 -regulation, -policy, or -practice (or an applicable State statute, -rule, -regulation, -policy,

22 or -practice)” that is “designed to ensure” that:

23

24

25 2 Bureau of Justice Assistance, Office of Justice Programs, U.S. Department of Justice,
26 “Edward Byrne Memorial Justice Assistance Grant Program: FY 2017 Local
27 Solicitation,” available at https://www.bja.gov/Funding/JAGLocal17.pdf (“Solicitation”).

28

16
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1

a. “agents of the United States acting under color of federal law in fact

2

are given access [to] a local-government (or local-government-

3

contracted) correctional facility for the purpose of permitting such

4

agents to meet with individuals who are (or are believed by such

5

agents to be) aliens and to inquire as to such individuals’ right to be or

6

remain in the United States” (the “Access Condition”); and

7

b. “when a local-government (or local-government contracted)

8

correctional facility receives from DHS a formal written request

9

authorized by the Immigration and Nationality Act that seeks advance

10

notice of the scheduled release date and time for a particular alien in

11

such facility, then such facility will honor such request and--as early

12

as practicable (see ‘Rules of Construction’ incorporated by para. 4.B.

13

of this condition--provide the requested notice to DHS.” (the “Notice

14

Condition”).

15 Greenville Award, ¶ 56(1) (emphasis added), attached hereto as Exhibit A.

16

52. In addition, the “Rules of Construction” referenced in the Notice Condition

17 stated: “Nothing in this condition shall be understood to authorize or require any

18 recipient, any subrecipient at any tier, any State or local government, or any other entity

19 or individual to maintain (or detain) any individual in custody beyond the date and time

20 the individual would have been released in the absence of this condition.” Id. ¶¶ 55-56,

21 at Para. 4.B.

22

53. The Rules of Construction also stated: “Current DHS practice is ordinarily to

23 request advance notice of scheduled release ‘as early as practicable (at least 48 hours, if

24 possible).’ (See DHS Form I-247A (3/17)). In the event that (e.g., in light of the date

25 DHS made such request) the scheduled release date and time for an alien are such as not

26 to permit the advance notice that DHS has requested, it shall not be a violation of this

27 condition to provide only as much advance notice as practicable.” Id.

28

17
COMPLAINT

Case 2:18-cv-07347 Document 1 Filed 08/22/18 Page 19 of 33 Page ID #:19

1

54. The United States Court of Appeals for the Seventh Circuit, as well as

2 federal district courts in Chicago and Philadelphia, held that the Access Condition and the

3 Notice Condition for the FY 2017 Byrne JAG grant were ultra vires and violated the

4 separation of powers. The Chicago and Philadelphia district courts also held that the

5 1373 Condition was unlawful because 8 U.S.C. § 1373 is unconstitutional.

6

E. DOJ Imposes Conditions, Certifications, and Questions Relating to

7

Federal Civil Immigration Enforcement on the Agency Solicitation for the FY 2018 Byrne JAG Grant Despite Contrary Court Rulings in FY

8

2017 Byrne JAG Grant Litigation.

9

55. In the FY 2018 Byrne JAG funding solicitation, released on July 20, 2018,

10 BJA doubles-down by: 1) employing new versions of the previously enjoined conditions,

11 newly disguised as requirements purportedly imposed by various preexisting statutes; 2)

12 adding new, unconstitutional conditions; 3) requiring unlawful certifications by the City’s

13 Mayor and Chief Legal Officer after implied threats of criminal arrest of local officials in

14 jurisdictions that do not cooperate with federal immigration enforcement; and 4)

15 mandating an informational disclosure relating to civil immigration practices in Los

16 Angeles (collectively referred to as the “Challenged Conditions”).

17

(1) The “1373” Condition

18

56. The FY 2018 Byrne JAG grant solicitation imposes conditions on the receipt

19 of an award that would require compliance with an interpretation of various federal

20 statutes which would violate the Tenth Amendment if construed to impose such a

21 requirement. Not only does DOJ carry over the unconstitutional requirement for agencies

22

23

24

25

26

27

28

18
COMPLAINT

Case 2:18-cv-07347 Document 1 Filed 08/22/18 Page 20 of 33 Page ID #:20

1 to certify compliance with 8 U.S.C. § 1373,3 but now also requires agencies to certify

2 compliance with 8 U.S.C. § 1644.4

3

57. 8 U.S.C. § 1373 and 8 U.S.C. § 1644 are not applicable laws because they

4 have no relevance to the local criminal justice subject matter of the Byrne JAG program.

5 Moreover, Section 1373 is not a valid federal law at all, as it violates the Tenth

6 Amendment, as recognized by the Chicago and Philadelphia district courts. Section

7 1644, as applied by DOJ here to impose a mandate on States and local governments, is

8 likewise unconstitutional. Accordingly, DOJ lacks authority to require Byrne JAG

9 applicants to certify compliance with either statute. This Court’s intervention is required

10 to invalidate these unconstitutional conditions.

11

(2) The Revised “Notice and Access” Conditions.

12

58. The FY 2018 Byrne JAG application contains “Notice and Access”

13 conditions that, in substance, are nearly indistinguishable from those that were enjoined

14 by federal courts in Chicago, Philadelphia and Los Angeles.5 Specifically, DOJ seeks to

15 condition FY 2018 Byrne JAG funding on a jurisdiction agreeing:

16

• “[n]ot to impede the exercise of the authority of the federal government

17

under 8 U.S.C. § 12[2]6(a) & (c)” (authorizing federal arrest and detention

18

of certain aliens based on a federal warrant, and providing mandatory federal

19

detention of certain criminal aliens) and 8 U.S.C § 1231(a)(4) (relating to

20

completion of criminal terms of imprisonment prior to removal from the

21
22 3 See Philadelphia, 309 F. Supp. 3d at 331 (holding Section 1373 unconstitutional under the anticommandeering doctrine); Chicago, 2018 WL 3608564, at *13 (same); see also
23 California, 2018 WL 3301414, at *14.

24 4 Section 1644 is similar to Section 1373 in that it states no State or local government

25

may be prohibited or restricted “from sending to or receiving from the Immigration and Naturalization Service information regarding the immigration status, lawful or unlawful,

26 of an alien in the United States.” 8 U.S.C. § 1644.

27 5 City of Los Angeles v. Sessions, 293 F. Supp. 3d 1087 (C.D. Cal. 2018)

28

19
COMPLAINT

Case 2:18-cv-07347 Document 1 Filed 08/22/18 Page 21 of 33 Page ID #:21

1

United States, and exceptions allowing for removal of federal, state, and

2

local nonviolent offenders in some circumstances before completion of

3

prison term). The Byrne JAG solicitation specifies that recipients are

4

required to do so by providing “(where feasible) at least 48 hours’ advance

5

notice to DHS regarding the scheduled release date and time of an alien in

6

the recipient’s custody when DHS requests such notice in order to take

7

custody of the alien pursuant to the Immigration and Nationality Act.”

8

• “[n]ot to impede the exercise by DHS agents, ‘anywhere in or outside the

9

United States’ (8 C.F.R. § 287.5(a)(1)), of their authority under 8 U.S.C.

10

§ 1357(a)(1) to ‘interrogate any alien or person believed to be an alien as to

11

his right to be or to remain in the United States.’” The Byrne JAG

12

solicitation specifies that recipients are required to do so by permitting

13

“DHS agents to have access to any correctional facility in order to meet with

14

an alien (or an individual believed to be an alien) and inquire as to his right

15

to be or remain in the United States.”6

16

59. In the face of court orders enjoining as unconstitutional the FY 2017 Notice

17 and Access Conditions, DOJ has shifted its tactics, apparently attempting to justify

18 imposition of these conditions under the Byrne JAG statute’s “applicable Federal laws”

19 provision. See 34 U.S.C. § 10153(a)(5)(D) (applicants must comply with “all provisions

20 of this part and all other applicable Federal laws”). But the conditions remain

21 unconstitutional. The statutes on which DOJ now attempts to rely plainly do not impose

22 any requirement on State and local governments, and construing them to create a mandate

23 on State and local governments to participate in federal civil immigration enforcement

24

25

26 6 See FY 2018 Byrne JAG Solicitation (“2018 Solicitation”) at 36-37, available at 27 https://www.bja.gov/funding/JAGLocal18.pdf.

28

20
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Case 2:18-cv-07347 Document 1 Filed 08/22/18 Page 22 of 33 Page ID #:22

1 would violate the Tenth Amendment. The statutes also have nothing to do with federal

2 grant funding or local criminal justice, the subject of the Byrne JAG program.

3

60. The solicitation also provides that “[t]he reasonable costs . . . of complying

4 with these conditions, including honoring any duly authorized requests from DHS that is

5 encompassed by these conditions, will be allowable costs under the award.” 2018

6 Solicitation at 37. This provision would use Byrne JAG grant funds, which Congress

7 expressly designated for support of local criminal justice—to unlawfully fund State and

8 local participation in federal civil immigration enforcement.

9

61. This Court’s intervention is required to invalidate these unlawful conditions.

10

(3) The “Harboring” Condition

11

62. Trump Administration officials have threatened to arrest local officials in so-

12 called “sanctuary” jurisdictions—i.e., jurisdictions the Trump Administration deems to be

13 uncooperative in federal civil immigration enforcement because the jurisdictions

14 prioritize their resources for use to protect the health and safety of their residents and

15 leave to the federal government the enforcement of federal civil immigration laws. In a

16 Homeland Security Oversight meeting, Secretary of Homeland Security Kirstjen Nielsen

17 confirmed that, at her department’s request, DOJ is exploring such prosecution of local

18 elected officials under 8 U.S.C. § 1324. Then-Acting Director of U.S. Immigration and

19 Customs Enforcement likewise stated that the Justice Department should “file charges

20 against the sanctuary cities [referring to criminal prosecution of local officials and law

21 enforcement under 8 U.S.C. § 1324]” and “hold back their funding.”7 He stated that “we

22 gotta start charging some of these [sanctuary city] politicians with crimes.”8

23 7 Brandon Conradis, Trump ICE Pick: Politicians Who Run Sanctuary Cities Should Be
24 Charged With Crimes, THE HILL, Jan. 2, 2018, 25 http://thehill.com/homenews/administration/367167-trump-ice-pick-politicians-who-run-
sanctuary-cities-should-be-charged (quoting interview of then-acting ICE acting Director 26 Thomas Homan with Fox News).
27 8 Id.
28

21
COMPLAINT

Case 2:18-cv-07347 Document 1 Filed 08/22/18 Page 23 of 33 Page ID #:23

1

63. The Justice Department now appears to share the extraordinary view that a

2 State or local government’s unwillingness to be commandeered into participating in

3 federal civil immigration enforcement may be a federal crime. Specifically, DOJ now

4 conditions a jurisdiction’s statutorily-authorized FY 2018 Byrne JAG award on the State

5 or local government’s chief official and chief legal advisor certifying, under penalty of

6 perjury, that the jurisdiction agrees: “Not to violate, or aid or abet any violation of, 8

7 U.S.C. § 1324(a) (forbidding any ‘person,’ in ‘knowing or in reckless disregard of the

8 fact that an alien has come to, entered, or remains in the United States in violation of

9 law,’ to ‘conceal, harbor, or shield from detection, or attempt to conceal, harbor, or shield

10 from detection, such alien in any place, including any building or any means of

11 transportation’ or to ‘engage in any conspiracy to commit any of the preceding acts’…’or

12 aid or abet the commission of any of the preceding acts’).” As with the revised Notice

13 and Access Conditions, the solicitation provides that “[t]he reasonable costs . . . of

14 complying with” the Harboring Condition is an “allowable cost[] under the award.”

15

64. The Harboring Condition is unlawful because 8 U.S.C. § 1324 does not

16 require States and local governments to participate in federal civil immigration

17 enforcement, and could not be construed to do so without violating the Tenth

18 Amendment. The statute also has nothing to do with federal grant funding or local

19 criminal justice. This Court’s intervention is required to invalidate this unlawful

20 condition.

21

(4) The “Questionnaire” Condition

22

65. BJA attempts to tether FY 2018 Byrne JAG grant awards to federal civil

23 immigration enforcement by requiring each applicant to provide mandatory responses to

24 civil immigration-related questions. Those questions are:

25

• (1) “Does your jurisdiction have any laws, policies, or practices related to

26

whether, when, or how employees may communicate with DHS or ICE?”

27

28

22
COMPLAINT

Case 2:18-cv-07347 Document 1 Filed 08/22/18 Page 24 of 33 Page ID #:24

1

• (2) “Is your jurisdiction subject to any laws from a superior political

2

entity (e.g., a state law that binds a city) that meet the description in question

3

1?” 2018 Solicitation at 52.

4

66. If the answer to either question is yes, the applicant must provide a copy of

5 each law or policy; describe each practice; and explain how the law, policy, or practice

6 complies with Section 1373. Because the City of Los Angeles passes through a portion

7 of its Byrne grant monies to other localities, the condition also requires the City to collect

8 this information from its subgrantees.

9

67. DOJ notes that responses to the questions “must be provided by the

10 applicant as part of the JAG application” and that an agency “will not be able to access

11 award funds (and its award will include a condition that withholds funds) until it submits

12 these responses.” Id. at 28.

13

68. The information sought by DOJ is not relevant to the Byrne JAG grant and,

14 in any event, has already been provided by the City to DOJ on multiple occasions in

15 different contexts (although not as a prerequisite to receiving grant funding). The

16 apparent purpose of the questionnaire is to help DOJ enforce its other unlawful

17 immigration-related conditions.

18

69. This Court’s intervention is required to invalidate this unlawful condition.

19

COUNT ONE

20

(Violation of Separation of Powers / Ultra Vires Agency Action)

21

70. Los Angeles incorporates and re-alleges each and every allegation contained

22 above as if fully set forth herein.

23

71. Defendants’ imposition of immigration-related conditions, questionnaires,

24 and certifications on Byrne JAG grant applicants violates constitutional principles of

25 separation of powers and exceeds DOJ’s lawful authority.

26

72. The Constitution confers the power of the Spending Clause on Congress, not

27 the Executive Branch. See U.S. Const. art. I, § 8, cl. 1. It is Congress, not an Executive

28 Branch agency, that has the constitutional authority to impose conditions on the receipt of

23
COMPLAINT

Case 2:18-cv-07347 Document 1 Filed 08/22/18 Page 25 of 33 Page ID #:25

1 federal funds, and even that power is subject to limitations such as relatedness and clarity.

2 Defendants here are attempting to wield authority that is vested in Congress, not in DOJ.

3

73. Congress specifically directed that Byrne JAG funds be issued as grants “for

4 use by the State or unit of local government” in order to provide seven types of support

5 for local criminal justice efforts—“additional personnel, equipment, supplies, contractual

6 support, training, technical assistance, and information systems for criminal justice.” 34

7 U.S.C. § 10152(a)(1). Congress further enumerated eight types of criminal justice

8 programs appropriate for funding, such as “[l]aw enforcement programs,” “[p]rosecution

9 and court programs,” and “[p]revention and education programs.”

10 Id. § 10152(a)(1)(A)-(H). Enforcing federal civil immigration laws is not among the

11 enumerated programs.

12

74. The programs to which Congress directed Byrne JAG funding do not require

13 inducing State and local support for federal investigations of civil immigration status.

14 Yet, the FY 2018 Byrne JAG application authorizes funding for civil immigration-related

15 programs, and requires all jurisdictions to promise to assist in civil immigration

16 enforcement as a condition of receiving funding. Accordingly, DOJ has expressly and

17 unlawfully shifted money that Congress appropriated to advance local criminal justice

18 programs away from that clear statutory purpose to fund, instead, federal civil

19 immigration enforcement, in violation of the statute.

20

75. Congress specifically recognized when it created the Byrne JAG program

21 that State and local governments maintain the sovereign police power to protect the

22 public health and safety of their residents by providing police departments with the

23 “flexibility to spend money for programs that work for them rather than to impose a ‘one

24 size fits all’ solution.” H.R. Rep. No. 109-233, at 89 (2005). The record shows Congress

25 intended to “lessen the administrative burden of applying for the grants.” Id. DOJ’s

26 blatant attempt to syphon monies from locally-driven Byrne JAG funded criminal justice

27 programs, like the City’s CLEAR program, into a complex, “one size fits all” effort to

28

24
COMPLAINT

Case 2:18-cv-07347 Document 1 Filed 08/22/18 Page 26 of 33 Page ID #:26

1 support federal civil immigration enforcement, clearly runs afoul of this congressional

2 enactment and purpose.

3

76. The Challenged Conditions are also grossly inconsistent with the funding

4 formula for Byrne JAG grants established in 34 U.S.C. § 10156. BJA is required, by

5 congressional mandate, to allocate Byrne JAG funds based on a prescribed formula that

6 takes into account a State’s population, and the violent crime rates in a given State or

7 locality. 34 U.S.C. § 10156(a), (d). Congress enumerated specific certifications and

8 assurances the applicant must make to access these funds. Again, Congress did not

9 include a condition mandating local law enforcement involvement in federal civil

10 immigration enforcement.

11

77. The Challenged Conditions also violate an express rule of construction

12 imposed by Congress. Congress directed that the statute creating the Byrne JAG

13 Program not be construed to authorize DOJ to exercise “any direction, supervision, or

14 control over any police force or any other criminal justice agency of any State or any

15 political subdivision thereof.” 34 U.S.C. § 10228(a). The Challenged Conditions do just

16 that, asserting federal control over Los Angeles and its police department in the operation

17 of its detention facilities.

18

78. Imposition of the Challenged Conditions also exceeds DOJ’s authority under

19 the statutory requirement that the applicant certify it “will comply with all provisions of

20 this part and all other applicable Federal laws.” 34 U.S.C. § 10153(a)(5)(D).

21

79. The 1373 Condition: 8 U.S.C. § 1373 is not an applicable law because it

22 has no relevance to the local criminal justice subject matter of the Byrne JAG program.

23 It is also not a valid federal law, as it violates the Tenth Amendment. Accordingly, DOJ

24 lacks authority to require Byrne JAG applicants to certify compliance with 8 U.S.C.

25 § 1373.

26

80. The 1644 Condition: 8 U.S.C. § 1644 is not applicable because it has no

27 relevance to the local criminal justice subject matter of the Byrne JAG program.

28 Moreover, any application of § 1644 to impose a mandate on States and local

25
COMPLAINT

Case 2:18-cv-07347 Document 1 Filed 08/22/18 Page 27 of 33 Page ID #:27

1 governments would violate the Tenth Amendment. Accordingly, DOJ lacks authority to

2 require Byrne JAG applicants to certify compliance with 8 U.S.C. § 1644.

3

81. The Revised Notice and Access Conditions: DOJ cannot justify the Notice

4 and Access conditions as it has revised them for the 2018 grant process to require

5 applicants to certify that they do not “impede” federal officials’ performance of their

6 duties under 8 U.S.C. §§ 1226(a), (c), 1231(a)(4), and 1357(a)(1). These provisions do

7 not purport to impose any obligations on States and local governments, and so cannot be

8 applicable Federal laws for which an applicant could be required to certify that it

9 complies. If these statutes were construed to impose requirements on States and local

10 governments, any such application would violate the Tenth Amendment. And even if

11 these laws could constitutionally impose obligations on States and local governments,

12 and did in fact do so, they would not be applicable to the local criminal justice subject

13 matter of the Byrne JAG Program. For all of these reasons, DOJ lacks authority to

14 require Byrne JAG applicants to certify compliance with 8 U.S.C. §§ 1226(a), (c),

15 1231(a)(4), and 1357(a)(1).

16

82. The Harboring Condition: 8 U.S.C. § 1324(a)(1)(A)(iii), (v) does not

17 require States and local governments to participate in or assist with federal civil

18 immigration enforcement. If this statute were construed to impose requirements on

19 States and local governments, any such application would violate the Tenth Amendment.

20 And even if this law could constitutionally impose obligations on States and local

21 governments, and did in fact do so, it would not be applicable to the local criminal justice

22 subject matter of the Byrne JAG Program. For all of these reasons, DOJ lacks authority

23 to require Byrne JAG applicants to certify compliance with 8 U.S.C. § 1324.

24

83. The Questionnaire Condition: DOJ has not identified any federal law

25 requiring States and local governments to complete its questionnaire concerning

26 participation in federal civil immigration enforcement. Accordingly, the requirement of

27 certifying compliance with applicable Federal laws cannot justify imposition of the

28 Questionnaire Condition.

26
COMPLAINT

Case 2:18-cv-07347 Document 1 Filed 08/22/18 Page 28 of 33 Page ID #:28

1

84. In sum, DOJ is attempting to exercise a power it does not have. Defendants’

2 attempt to condition federal funding of local criminal justice programs in cities like Los

3 Angeles on the willingness of the award grantee to engage in federal civil immigration

4 enforcement violates the separation of powers enshrined in our Constitution and is ultra

5 vires in violation of the Byrne JAG statute.

6

COUNT TWO

7

(Violation of the Spending Clause)

8

85. Los Angeles incorporates and re-alleges each and every allegation contained

9 above as if fully set forth herein.

10

86. Even if Congress could delegate the constitutional spending power to DOJ to

11 impose the Challenged Conditions (which it cannot), and even if it had done so (which it

12 has not), such power would be subject to constitutional restrictions that are not met here.

13 It is well established that the Spending Clause requires that conditions on providing

14 federal funds to States and local governments must, inter alia, be unambiguous, and be

15 sufficiently germane to the purpose of the federal funds. Otherwise, the “condition”

16 amounts to impermissible regulation and commandeering of States and local

17 governments, in violation of the Tenth Amendment. The Challenged Conditions fail both

18 of these requirements.

19

87. Conditions placed on the use by States and localities of federal funds must

20 be stated unambiguously. “The legitimacy of Congress’ power to legislate under the

21 spending power thus rests on whether the State voluntarily and knowingly accepts” the

22 conditions, and there can be “no knowing acceptance if a State [or city] . . . is unable to

23 ascertain what is expected of it.” Pennhurst State Sch. & Hosp. v. Halderman, 451 U.S.

24 1, 17 (1981). It is Congress, not an agency, that must speak clearly in defining the type

25 of conditions at issue. But even if DOJ could satisfy this requirement by speaking with

26 the requisite clarity, it has not done so here. For instance, the DOJ has not

27 unambiguously explained what conduct would “impede” the exercise of federal

28 government authority under 8 U.S.C. § 1266(a) & (c) or § 1231(a)(4), or what it means to

27
COMPLAINT

Case 2:18-cv-07347 Document 1 Filed 08/22/18 Page 29 of 33 Page ID #:29

1 “aid or abet” the “harbor[ing]” of a known alien under 8 U.S.C. § 1324. Nor has DOJ

2 clearly and unambiguously stated whether the version of the Notice Condition included in

3 its FY 2018 solicitation would require States or localities to detain individuals beyond

4 their scheduled release date. These ambiguities make it difficult for Los Angeles to

5 ascertain exactly what is expected of it.

6

88. Conditions imposed on recipients of federal funding must “bear some

7 relationship to the purpose of the federal spending.” New York v. United States, 505 U.S.

8 144, 167 (1992). The Challenged Conditions concern federal civil immigration

9 enforcement, which is not sufficiently related—or related at all—to the purpose of the

10 Byrne JAG Program created by Congress specifically to support State and local criminal

11 justice efforts through certain types of support and programs.

12

COUNT THREE

13

(Violation of Tenth Amendment and Anticommandeering)

14

89. Los Angeles incorporates and re-alleges each and every allegation contained

15 above as if fully set forth herein.

16

90. The Tenth Amendment prohibits the federal government from requiring

17 States and municipalities “to govern according to Congress’ instructions.” New York,

18 505 U.S. at 162, or “commanding the States’ officers . . . to administer or enforce a

19 federal regulatory program.” Printz v. United States, 521 U.S. 898, 935 (1997). The

20 various federal statutes that DOJ attempts to use to justify the Challenged Conditions are

21 either unconstitutional in violation of the Tenth Amendment on their face, as applied to

22 State and local governments, or as DOJ interprets them to apply to State and local

23 governments.

24

91. The 1373 Condition: DOJ’s interpretation of 8 U.S.C. § 1373 of Title 8 of

25 the United States Code to require State and local governments to participate in federal

26 civil immigration enforcement violates the Tenth Amendment making it unconstitutional

27 on its face. Section 1373 purports to “unequivocally dictate[ ] what a state legislature

28 may and may not do” by prohibiting States and localities from restricting their employees

28
COMPLAINT

Case 2:18-cv-07347 Document 1 Filed 08/22/18 Page 30 of 33 Page ID #:30

1 from communicating with the federal government about a person’s citizenship and

2 immigration status. See Murphy, 138 S. Ct. at 1478; Philadelphia, 309 F. Supp. 3d at

3 331; Chicago, 2018 WL 3608564, at *10.

4

92. The 1644 Condition: 8 U.S.C. § 1644 does not impose mandates solely on

5 State and local governments, but to the extent it imposes on States and local governments

6 mandates similar to those imposed by 8 U.S.C. § 1373, it is unconstitutional as applied

7 for the same reasons.

8

93. The Revised Notice and Access Conditions: 8 U.S.C. §§ 1226(a), (c),

9 1231(a)(4), and 1357(a)(1) do not purport to impose any obligations on States and local

10 governments. However, if DOJ were permitted to interpret those statutes to impose an

11 obligation on States and local governments to participate in federal civil immigration

12 enforcement, so as not to impede federal officials’ performance of their duties pursuant to

13 these statutes, those statutes would be unconstitutional as applied.

14

94. The Harboring Condition: 8 U.S.C. § 1324 does not purport to impose any

15 obligations on States and local governments. However, if DOJ were permitted to

16 interpret that statute to make State and local officials criminally responsible for

17 “harboring” based on their unwillingness to participate in federal civil immigration

18 enforcement, that statute would be unconstitutional as applied.

19

95. Because these federal statutes are unconstitutional violations of the Tenth

20 Amendment, or would be unconstitutional to the extent they were construed and applied

21 as DOJ suggests, i.e., to impose obligations on State and local governments to participate

22 in federal civil immigration enforcement, DOJ cannot require jurisdictions to comply

23 with its interpretation of these laws as a condition of receiving any Byrne JAG funds or

24 any other federal funding.

25

26

27

28

29
COMPLAINT

Case 2:18-cv-07347 Document 1 Filed 08/22/18 Page 31 of 33 Page ID #:31

1

COUNT FOUR

2

(Violation of the Administrative Procedure Act - Arbitrary and Capricious Agency Action)

3 96. Los Angeles incorporates and re-alleges each and every allegation contained

4 above as if fully set forth herein.

5 97. Agency actions are unlawful and must be set aside if they are “arbitrary,

6 capricious, an abuse of discretion, or otherwise not in accordance with law.” 5 U.S.C. §

7 706(2)(A).

8 98. The decision to impose civil immigration-related conditions and

9 certifications in the FY 2018 Byrne JAG grant solicitation is arbitrary and capricious

10 because DOJ imposed those conditions and certifications without any reasoned basis,

11 provided no support for its linkage between participation by State and local law

12 enforcement officials in federal civil immigration enforcement and the local criminal

13 justice efforts that are the authorized purpose of the grants at issue, and appears to have

14 relied on clearly erroneous and debunked interpretations of existing studies.

15

16

PRAYER FOR RELIEF

17

WHEREFORE, Plaintiff City of Los Angeles respectfully requests that this Court

18 enter judgment in its favor, and grant the following relief:

19

1. Declare that the Challenged Conditions in the FY 2018 Byrne JAG

20 solicitation are unconstitutional or otherwise unlawful;

21

2. Set aside the Challenged Conditions on FY 2018 Byrne JAG funds, and

22 permanently enjoin Defendants from using the Challenged Conditions or substantively

23 similar conditions in awarding Byrne JAG funding;

24

3. Declare that 8 U.S.C. § 1373 is unconstitutional on its face;

25

4. Declare that 8 U.S.C. § 1644 is unconstitutional as applied to State and local

26 governments;

27

28

30
COMPLAINT

Case 2:18-cv-07347 Document 1 Filed 08/22/18 Page 32 of 33 Page ID #:32

1

5. Declare that 8 U.S.C. §§ 1226(a), (c), 1231(a)(4), 1324, and 1357(a)(1) do

2 not require State and local governments to participate in federal civil immigration

3 enforcement, and would be unconstitutional as applied to the extent that they did;

4

6. Issue a writ of mandamus compelling Defendants to immediately disburse

5 Los Angeles’s FY 2018 JAG award, without further delay;

6

7. Award Plaintiff City of Los Angeles reasonable fees and costs; and,

7

8. Grant any further relief that this Court may deem fit and proper.

8

9

10

11

12

13

14

15

16

17

18

19

20

21

22

23

24

25

26

27

28

31
COMPLAINT

Case 2:18-cv-07347 Document 1 Filed 08/22/18 Page 33 of 33 Page ID #:33

1 Dated: August 22, 2018

Respectfully Submitted:

2

3

4

5

MITCHELL A. KAMIN 6 NEEMA T. SAHNI

7 Covington & Burling LLP

1999 Avenue of the Stars, Suite 3500 8 Los Angeles, California 90067-4643

9

DAVID M. ZIONTS, pro hac vice 10 application forthcoming

11 IVANO M. VENTRESCA, pro hac vice

12

application forthcoming BENJAMIN L. CAVATARO, pro hac

13 vice application forthcoming

14

Covington & Burling LLP One CityCenter

15 850 Tenth Street NW

16 Washington, DC 20001

By: /s/ Michael N. Feuer MICHAEL N. FEUER City Attorney
JAMES P. CLARK Chief Deputy City Attorney LEELA A. KAPUR Executive Assistant City Attorney VALERIE L. FLORES Managing Senior Assistant City Attorney MICHAEL DUNDAS Deputy City Attorney DANIA MINASSIAN Deputy City Attorney 200 North Main Street, City Hall East Room 700 Los Angeles, California 90012 Telephone: (213) 978-8344 Facsimile: (213) 978-8312

17 Attorneys for Plaintiff City of Los Angeles

18

19

20

21

22

23

24

25

26

27

28

32
COMPLAINT

 
 Case 2:18-cv-07347-R-JC Document 40 Filed 10/05/18 Page 1 of 52 Page ID #:179

1 MICHAEL N. FEUER, SBN 111529

MITCHELL A. KAMIN, SBN 202788

2

City Attorney JAMES P. CLARK, SBN 64780

NEEMA T. SAHNI, SBN 274240 Covington & Burling LLP

3 Chief Deputy City Attorney

1999 Avenue of the Stars, Suite 3500

4

LEELA A. KAPUR, SBN 125548 Executive Assistant City Attorney

Los Angeles, California 90067-4643 mkamin@cov.com

5 VALERIE L. FLORES, SBN 138572

Telephone: (424) 332-4800

6

Managing Senior Assistant City Attorney Facsimile: (424) 332-4749 MICHAEL DUNDAS, SBN 226930

7 DANIA MINASSIAN, SBN 198928

DAVID M. ZIONTS, pro hac vice

8 STEVEN H. HONG, SBN 212727 Deputy City Attorney

IVANO M. VENTRESCA, pro hac vice BENJAMIN L. CAVATARO, pro hac

9 200 North Main Street, City Hall East

vice

10 Suite 800 Los Angeles, California 90012

Covington & Burling LLP One CityCenter

11 james.p.clark@lacity.org

850 Tenth Street NW

12 Telephone: (213) 978-8347 Facsimile: (213) 978-8312

Washington, DC 20001 dzionts@cov.com

13

Telephone: (202) 662-6000

14

Facsimile: (202) 662-5987

15

16 Attorneys for Plaintiff City of Los Angeles

17

UNITED STATES DISTRICT COURT FOR THE CENTRAL DISTRICT OF CALIFORNIA

18 CITY OF LOS ANGELES,
19

Case No.: 2:18-cv-07347-R-JC

20

Plaintiff,

21

v.

22 JEFFERSON B. SESSIONS, III, in his
23 official capacity as Attorney General of the
24 United States; LAURA ROGERS, in her official capacity as Acting Principal Deputy
25 Assistant Attorney General of the Office of
26 Justice Programs; UNITED STATES DEPARTMENT OF JUSTICE.
27

FIRST AMENDED COMPLAINT FOR DECLARATORY AND INJUNCTIVE RELIEF

28

Defendants.

FIRST AMENDED COMPLAINT

Case 2:18-cv-07347-R-JC Document 40 Filed 10/05/18 Page 2 of 52 Page ID #:180

1

INTRODUCTION1

2

1. The City of Los Angeles (“Los Angeles” or “City”) files this Complaint

3 seeking declaratory and injunctive relief to prevent the United States Department of

4 Justice (“DOJ” or “Department”) from unconstitutionally seeking to wield authority it

5 does not have to advance policy objectives it cannot lawfully effectuate in such a

6 manner—all at the expense of public safety and community trust in Los Angeles and

7 other communities.

8

2. Numerous courts nationwide, including this Court, already have enjoined

9 DOJ from using federal funding to punish jurisdictions like Los Angeles for refusing to

10 abandon successful community policing practices built on engendering community trust

11 by participating in the civil immigration enforcement policies of the Trump

12 Administration.

13

3. The federal funds at issue in this Complaint are two DOJ grants: (1) Fiscal

14 Year (“FY”) 2018 Edward Byrne Memorial Justice Assistance Grant (“Byrne JAG”), 34

15 U.S.C. §§ 10151-58; and (2) FY 2018 Gang Suppression Planning Grants Program

16 (“Juvenile Gang Prevention Grant”), Pub. L. 115-141, 132 Stat 348, 423; 34 U.S.C.

17 §§ 11171, 11172.

18

The Byrne JAG Program

19

4. Congress established the Byrne JAG Program specifically to authorize

20 federal grants “for use by the State or unit of local government” in order to provide

21 “additional personnel, equipment, supplies, contractual support, training, technical

22 assistance, and information systems for criminal justice.” 34 U.S.C. § 10152(a)(1).

23 Byrne JAG grants are awarded through a statutory formula based on population and rate

24 1 DOJ has provided written consent to Los Angeles’s filing of its First Amended
25 Complaint and Los Angeles may file the First Amended Complaint as a matter of course.

26 See Fed. R. Civ. P. 15(a)(1), (2); McGucken v. Chive Media Grp., LLC, No. CV 18-

27

01612-RSWL-KS, 2018 WL 3410095, at *5 (C.D. Cal. July 11, 2018) (“Federal Rule of Civil Procedure 15(a) provides that a party may amend their complaint once ‘as a matter

28 of course’ before a responsive pleading is served.”).

1
FIRST AMENDED COMPLAINT

Case 2:18-cv-07347-R-JC Document 40 Filed 10/05/18 Page 3 of 52 Page ID #:181

1 of violent crime. They are administered by a component of DOJ, the Bureau of Justice

2 Assistance (“BJA”) within DOJ’s Office of Justice Programs (“OJP”).

3

5. Four conditions on the FY 2018 Byrne JAG grant are materially identical to

4 the conditions on the FY 2017 Byrne JAG grants that have been enjoined by courts,

5 including two conditions enjoined by this Court. The FY 2018 Byrne JAG conditions

6 require States and localities to: (1) comply with 8 U.S.C. § 1373, which provides that

7 States and localities “may not prohibit, or in any way restrict” government entities and

8 officials from “sending to, or receiving from” the United States Department of Homeland

9 Security (“DHS”) information “regarding the citizenship or immigration status, lawful or

10 unlawful, of any individual”; (2) comply with 8 U.S.C. § 1644, which provides that no

11 States and localities “may be prohibited, or in any way restricted” from “sending to or

12 receiving from” DHS “the immigration status, lawful or unlawful, of an alien in the

13 United States”; (3) provide 48 hours’ advance notice to DHS, “where feasible” and when

14 requested, before releasing an alien from state or local custody; and (4) provide DHS

15 agents with “access to any correctional facility in order to meet with an alien (or an

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

17 States.”2 Although DOJ did not make this argument in defending the materially identical

18 conditions on the FY 2017 Byrne JAG grants, for the 2018 Byrne JAG grants DOJ now

19 suggests in the solicitation that compliance with the third and fourth conditions relating to

20 “Notice” and “Access” is required under various statutory provisions of the Immigration

21 and Nationality Act, 8 U.S.C. § 1101, et seq. (“INA”).

22

6. DOJ also adds new and equally unlawful conditions, mandatory

23 certifications, and a questionnaire. These new unlawful conditions require that

24 jurisdictions will “not . . . publicly disclose federal law enforcement information in an

25 attempt to conceal, harbor, or shield certain individuals from detection, including in

26

27 2 FY 2018 Byrne JAG Solicitation (“2018 Solicitation”) at 36-37, available at 28 https://www.bja.gov/funding/JAGLocal18.pdf.

2
FIRST AMENDED COMPLAINT

Case 2:18-cv-07347-R-JC Document 40 Filed 10/05/18 Page 4 of 52 Page ID #:182

1 violation of 8 U.S.C. § 1324(a)” and include a certification that the jurisdiction does not

2 have “any law, rule, policy, or practice” that would “require or authorize the public

3 disclosure of federal law enforcement information in order to conceal, harbor, or shield

4 from detection fugitives from justice or aliens illegally in the United States.” Section

5 1324(a) is a statute that criminally punishes persons who, among other things, harbor

6 illegal aliens. The conditions also include certifying compliance with 8 U.S.C. § 1366, a

7 statute that requires the Attorney General to make reports to Congress.

8

7. The 2018 Solicitation states that applicants, to accept the FY 2018 award,

9 “must submit[] the specific certifications regarding compliance,” which contain the above

10 conditions. 2018 Solicitation at 1.

11

8. Nothing in the Byrne JAG legislation that Congress enacted permits BJA to

12 condition federal funding to a local jurisdiction on that jurisdiction’s willingness to

13 engage in federal civil immigration enforcement. To the contrary, such conditions are

14 antithetical to the purpose for which Congress created the funding program—that is, to

15 support local criminal justice programs.

16

The Juvenile Gang Prevention Grant Program

17

9. The Juvenile Gang Prevention Grant is issued under authority of Subchapter

18 II, Part E of the Juvenile Justice and Delinquency Prevention Act of 1974, as amended

19 (“Juvenile Justice Act”).3 Under that part of the Juvenile Justice Act, Congress

20 authorized the Office of Juvenile Justice and Delinquency Prevention (“OJJDP”) to make

21 grants to units of local government “to carry out projects for the development, testing,

22 and demonstration of promising initiatives and programs for the prevention, control, or

23 reduction of juvenile delinquency.” 34 U.S.C. § 11171(a) (emphasis added). The

24
25 3 Office of Juvenile Justice and Delinquency Prevention, Office of Justice Programs, U.S. Department of Justice, “OJJDP FY 2018 Gang Suppression Planning Grants
26 Program,” at 7, available at 27 http://www.ojjdp.gov/grants/solicitations/FY2018/GangPlan.pdf (“OJJDP Solicitation”)

28

3
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1 Juvenile Gang Prevention Grant is a competitive grant and is being awarded for the first 2 time.4 In the 2018 Consolidated Appropriations Act, Pub. L. No. 115-141, Mar. 23, 3 2018, 132 Stat. 348, 423, Congress provided “$27,500,000 for delinquency prevention, as 4 authorized by section 505 of the Juvenile Justice Act, of which, pursuant to sections 261

5 and 262 [34 U.S.C. §§ 11171 and 11172] thereof . . . (B) $4,000,000 shall be for gang

6 and youth violence education, prevention and intervention, and related activities.”

7 (emphasis added).

8

10. This Program is administered by OJJDP, which is a component of DOJ’s

9 OJP. OJJDP’s stated goals for the grant include to “[r]educe and sustain reductions in

10 community youth violence, particularly gun and gang violence, and victimization” and

11 “[i]ncrease the safety, well-being, and healthy development of children, youth, and

12 families.” OJJDP Solicitation at 7.

13

11. The OJJDP Solicitation contains four conditions materially identical to the

14 conditions on the FY 2017 Byrne JAG grant that have been enjoined by courts, including

15 two enjoined by this Court. Again, these conditions require States and localities to: (1)

16 comply with 8 U.S.C. § 1373, which provides that States and localities “may not prohibit,

17 or in any way restrict” government entities and officials from “sending to, or receiving

18 from” DHS information “regarding the citizenship or immigration status, lawful or

19 unlawful, of any individual”; (2) comply with 8 U.S.C. § 1644, which provides that no

20 States and localities “may be prohibited, or in any way restricted” from “sending to or

21 receiving from” DHS “the immigration status, lawful or unlawful, of an alien in the

22 United States”; (3) provide 48 hours’ advance notice to DHS, “where feasible” and when

23 requested, before releasing an alien from state or local custody; and (4) provide DHS

24

25 4 Office of Juvenile Justice and Delinquency Prevention, Office of Justice Programs, 26 U.S. Department of Justice, “Frequently Asked Questions, OJJDP FY 2018 Gang
Suppression Planning Grants Program,” available at 27 http://www.ojjdp.gov/grants/solicitations/FY2018/FAQ/GangPlan.pdf (“OJJDP FAQ”).
28

4
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1 agents with “access to any correctional facility in order to meet with an alien (or an

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

3 States.” 5 And, again, although it did not make this argument in defending the materially

4 identical conditions on the FY 2017 Byrne JAG grants, DOJ now suggests that

5 compliance with the third and fourth conditions relating to “Notice” and “Access” is

6 required under various statutory provisions of the INA.

7

12. DOJ’s unlawful conditions also require that jurisdictions will “not . . .

8 publicly disclose federal law enforcement information in an attempt to conceal, harbor, or

9 shield certain individuals from detection, including in violation of 8 U.S.C. § 1324(a)”

10 and include a certification that the jurisdiction does not have “any law, rule, policy, or

11 practice” that would “require or authorize the public disclosure of federal law

12 enforcement information in order to conceal, harbor, or shield from detection fugitives

13 from justice or aliens illegally in the United States.” Section 1324(a) is a statute that

14 criminally punishes persons who harbor illegal aliens. The conditions also include

15 certifying compliance with 8 U.S.C. § 1366, a statute that requires the Attorney General

16 to make reports to Congress.

17

13. DOJ’s solicitation states that “in order validly to accept an FY 2018 award

18 under this solicitation, the chief legal officer of that entity must properly execute, and the

19 applicant must submit, the specific certifications regarding compliance with certain

20 federal laws,” which contain the above conditions. OJJDP Solicitation, at 2.

21

14. The Juvenile Gang Prevention Grant solicitation also contains a priority

22 consideration which provides that an “applicant may receive priority consideration by

23 explaining how it would address the problem area identified in its application through

24 cooperation with immigration authorities . . . .” OJJDP Solicitation, at 10.

25

26 5 Both the Notice and Access conditions include the following parenthetical note, with
27 no further elaboration: “Note: this condition will apply only with respect to alien adult detainees and only in jurisdictions where law enforcement is assisting in implementing
28 this program.”

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1

15. Congress did not authorize OJJDP to condition Juvenile Gang Prevention

2 Grant funds on a jurisdiction’s participation in federal civil immigration enforcement, and

3 to do so is contrary to the purpose for which Congress created the program—that is to

4 “support State and local programs that prevent juvenile involvement in delinquent

5 behavior,” 34 U.S.C. § 11102(1); “assist State and local governments in promoting public

6 safety by encouraging accountability for acts of juvenile delinquency,” id. § 11102(2);

7 and “assist State and local governments in addressing juvenile crime through the

8 provision of technical assistance, research, training, evaluation, and the dissemination of

9 information on effective programs for combating juvenile delinquency,” id. § 11102(3).

10

Unlawful Conditions

11

16. The immigration conditions that DOJ has imposed on the FY 2018 Byrne

12 JAG and Juvenile Gang Prevention Grant flout the rationale of earlier rulings by this

13 Court, which has enjoined the imposition of immigration-related conditions as to both the

14 FY 2017 Byrne JAG and a different DOJ-administered federal grant program related to

15 community-oriented policing.6

16

17. In addition to re-imposing those conditions for the FY 2018 Byrne JAG and

17 Juvenile Gang Prevention Grant that have previously been enjoined for FY 2017 Byrne

18 JAG grants, DOJ adds new and equally unlawful conditions, mandatory certifications,

19

20 6 Plaintiff here, the City of Los Angeles, previously filed a lawsuit in this District Court

challenging FY 2017 Byrne JAG grant conditions, along with conditions on the FY 2017 21 Community Oriented Policing Services (“COPS”) Hiring Program grant, in City of Los

22 Angeles v. Sessions, Case No. 2:17-cv-07215-R-JCx. The Court granted summary

judgment to the City against the immigration-related conditions on the COPS grant 23 causes of action and permanently enjoined DOJ from imposing those conditions in future

24 COPS grant cycles. City of Los Angeles v. Sessions, 293 F. Supp. 3d 1087 (C.D. Cal.

25

2018), appeal pending. And, the Court granted Los Angeles’ motion for a preliminary injunction against similar conditions on the FY 2017 Byrne JAG (Case No. 2:17-CV-

26 07215-R-JC). Moreover, the United States Court of Appeals for the Seventh Circuit and

27

federal district courts in Chicago and Philadelphia all have enjoined the conditions on the FY 2017 Byrne JAG.

28

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1 and a questionnaire, all of which seek to deny funds to jurisdictions like Los Angeles that

2 use their funds and resources for local criminal justice programs rather than to participate

3 in federal civil immigration enforcement. The immigration-related conditions, questions,

4 and certifications that permeate both the 2018 Byrne JAG and the Juvenile Gang

5 Prevention Grant solicitations are facially unconstitutional and otherwise unlawful for a

6 number of reasons.

7

18. First, the immigration-related conditions, questions, and certifications

8 violate the constitutional doctrine of separation of powers. The constitutional authority to

9 spend federal government money, and to attach reasonable and lawful terms and

10 conditions to the receipt of federal funds, belongs to Congress, not the Executive Branch.

11 DOJ, as an agency of the Executive Branch, may not unilaterally impose terms on federal

12 grants to States and local governments in the absence of a specific and unambiguous

13 authorization from Congress, which has not occurred with respect to the immigration-

14 related conditions DOJ seeks to attach to the FY 2018 Byrne JAG and Juvenile Gang

15 Prevention Grant. On this basis alone, the funding conditions violate the Constitution.

16

19. DOJ’s actions also offend the basic separation of powers principle that an

17 Executive Branch agency has no power to act unless Congress has delegated authority to

18 it. See City & Cty. of San Francisco v. Trump, 897 F.2d 1225, 1234 (9th Cir. 2018)

19 (holding that the Executive Order conditioning all federal funding on compliance with 8

20 U.S.C. § 1373 is an unlawful attempt by the Trump Administration to “coopt” for itself

21 Congress’s exclusive spending power).

22

20. DOJ’s FY 2018 immigration-related conditions are not authorized by, and

23 indeed are incompatible with, the statute Congress enacted establishing the Byrne JAG

24 Program because the conditions cannot be reconciled with Congress’s directive that funds

25 be allocated for local criminal justice efforts through an explicit funding formula

26 involving only two factors: community population and rates of violent crime. DOJ’s

27 conditions also undermine Congress’s express directive that Byrne JAG funds be used

28 only to provide seven types of support for community criminal justice efforts, through

7
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1 eight types of specified local criminal justice programs. DOJ’s conditions would redirect

2 those funds to State and local law enforcement agencies that participate in federal civil

3 immigration enforcement. On September 13, 2018, this Court issued an order granting

4 the City’s request for a preliminary injunction enjoining DOJ’s efforts to impose two

5 immigration-related conditions on 2017 Byrne JAG grants. This Court ruled that those

6 DOJ conditions were “a violation of the separation of powers doctrine and ultra vires.”

7 Order Granting Plaintiff’s Application for Preliminary Injunction, at 4; City of Los

8 Angeles v. Sessions, 2:17-CV-07215-R-JC (Dkt. 93). Multiple other courts nationwide

9 have reached the same conclusion. City of Chicago v. Sessions, 264 F. Supp. 3d 933, 943

10 (N.D. Ill. 2017); City of Philadelphia v. Sessions, 280 F. Supp. 3d 579, 659 (E.D. Pa.

11 2017); City of Chicago v. Sessions, 888 F.3d 272, 293 (7th Cir. 2018); City of

12 Philadelphia v. Sessions, 309 F. Supp. 3d 289, 321, 331 (E.D. Pa. 2018); City of Chicago

13 v. Sessions, No. 17 C 5720, 2018 WL 3608564, at *13 (N.D. Ill. July 27, 2018).

14

21. Similarly, DOJ’s immigration-related conditions are not authorized by, and

15 are incompatible with, the statutes establishing the Juvenile Gang Prevention Grant

16 program. The conditions cannot be reconciled with Congress’s directive that grants of

17 federal funds be made to States and units of local government “to carry out projects for

18 the development, testing, and demonstration of promising initiatives and programs for the

19 prevention, control, or reduction of juvenile delinquency.” 34 U.S.C. § 11171(a).

20 Congress did not mention the term “immigration,” or any variation of that term, in any of

21 the enabling legislation for the Juvenile Gang Prevention Grant. Further, Congress did

22 not include anything in this enabling legislation to indicate that a local jurisdiction’s

23 cooperation or collaboration with federal immigration enforcement authorities furthers

24 the purpose of grants made under the Juvenile Justice Act’s authority, such as the

25 Juvenile Gang Prevention Grant. To the contrary, the Juvenile Justice Act identifies the

26 collaborative element in juvenile delinquency prevention programs as being local in

27 nature, involving “juveniles, their families, local public agencies, and community based

28 organizations[.]” Id. The enabling legislation states that “[c]oordinated juvenile justice

8
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1 and delinquency prevention projects that meet the needs of juveniles through the

2 collaboration of the many local service systems juveniles encounter can help prevent

3 juveniles from becoming delinquent and help delinquent youth return to a productive

4 life.” Id. § 11101(a)(11) (emphasis added). Indeed, OJJDP’s own Comprehensive Gang

5 Model echoes the idea of local collaboration by identifying “Suppression” as

6 “community policing with formal and informal social controls and accountability

7 measures.”7 Many communities, like the City of Los Angeles, have made the public

8 safety determination that participation by local law enforcement agencies in federal civil

9 immigration enforcement agencies works in opposition to engendering trust with local

10 youth, who may be undocumented or be citizens with undocumented parents or other

11 family members.

12

22. DOJ’s conditions are unrelated to the Juvenile Gang Prevention Grant’s

13 three statutorily authorized purposes: “to support State and local programs that prevent

14 juvenile involvement in delinquent behavior,” id. § 11102(1); “assist State and local

15 governments in promoting public safety by encouraging accountability for acts of

16 juvenile delinquency,” id. § 11102(2); and “assist State and local governments in

17 addressing juvenile crime through the provision of technical assistance, research,

18 training, evaluation, and the dissemination of information on effective programs for

19 combating juvenile delinquency,” id. § 11102(3). The reasoning of this Court and others

20 in the cases cited above, concluding that such conditions violate the separation of powers

21 and are ultra vires, is equally applicable to the Juvenile Gang Prevention Grant.

22

23. DOJ cannot mount an end-run around these court rulings by now claiming

23 that the same unconstitutional conditions are justified as conditions on these grants

24

25 7 Office of Juvenile Justice and Delinquency Prevention, Office of Justice Programs,

26 U.S. Department of Justice, Nat’l Gang Ctr., “A Law Enforcement Official’s Guide to the

27

OJJDP Comprehensive Gang Model,” at 1, available at https://www.nationalgangcenter.gov/Content/Documents/LE-Officials-Guide-to-OJJDP-

28 Comprehensive-Gang-Model.pdf (“OJJDP Solicitation”).

9
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1 because they relate to other federal statutes. As part of the Byrne JAG application, an

2 applicant must certify that it “will comply with all provisions of this part and all other

3 applicable Federal laws.” 34 U.S.C. § 10153(a)(5)(D) (emphasis added). But, the

4 federal laws in which DOJ purports to ground its immigration-related conditions are not

5 “applicable” laws. The civil immigration-related conditions have no relevance to federal

6 grants, the local criminal justice subject matter of the Byrne JAG Program, or the local

7 juvenile delinquency prevention subject matter of the Juvenile Gang Prevention Grant.

8 Moreover, the civil immigration-related conditions are not valid federal laws, because

9 they are either facially unconstitutional or unconstitutional as DOJ seeks to interpret and

10 apply them here.

11

24. The FY 2018 Byrne JAG and Juvenile Gang Prevention Grant applications

12 also contravene Congress’s statutory mandate in 34 U.S.C. § 10228(a) prohibiting DOJ’s

13 use of the Byrne JAG statute to “exercise any direction, supervision, or control over any

14 police force or any other criminal justice agency of any State or any political subdivision

15 thereof.”

16

25. Second, even if the solicitations’ immigration-related conditions had been

17 imposed by Congress rather than DOJ, they would be unconstitutional under the

18 Spending Clause and Tenth Amendment to the United States Constitution, which limit

19 the power of the federal government to restrict federal funding for the States (and their

20 municipalities) based on matters of law and policy that are properly reserved to the

21 States.

22

26. When Congress attaches new terms to federal funds, it must meet several

23 requirements to ensure that it is not exceeding its spending power to improperly regulate

24 State and local officials. Under the Spending Clause, terms that Congress imposes on use

25 of federal funds by a State or local government must be unambiguous and sufficiently

26 related to the purpose of those federal funds. Congress created the Byrne JAG Program

27 for the express purpose of funding local criminal justice efforts through statutorily-

28 specified types of support and programs. Congress created the Juvenile Gang Prevention

10
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Case 2:18-cv-07347-R-JC Document 40 Filed 10/05/18 Page 12 of 52 Page ID #:190

1 Grant program to provide funds to States and units of local government “to carry out

2 projects for the development, testing, and demonstration of promising initiatives and

3 programs for the prevention, control, or reduction of juvenile delinquency.” 34 U.S.C. §

4 11171(a). DOJ’s immigration-related conditions do not relate to these purposes or to the

5 types of support and programs that Congress specified in the applicable establishing

6 statute. Rather, DOJ is attempting to use these grant programs to reward localities that

7 participate in federal civil immigration enforcement, and punish those that do not. In

8 addition, certain of the conditions that DOJ included in the FY 2018 Byrne JAG

9 solicitation and the Juvenile Gang Prevention Grant are so ambiguous as to make it

10 difficult for Los Angeles to ascertain what is expected of it.

11

27. Third, the conditions and certifications that DOJ has imposed in the FY

12 2018 Byrne JAG and the Juvenile Gang Prevention Grant applications are a clear

13 indication that DOJ unconstitutionally seeks to commandeer local police agencies to

14 enforce federal civil immigration laws, in violation of the Tenth Amendment, confirmed

15 by the recent U.S. Supreme Court decision in Murphy v. NCAA, 138 S. Ct. 1461, 1477

16 (2018) (“The Federal Government may not command [either in the affirmative or through

17 prohibitive language] the States’ officers, or those of their political subdivisions, to

18 administer or enforce a federal regulatory program.” (citation omitted)). Specifically,

19 both the FY 2018 Byrne JAG grant and the Juvenile Gang Prevention Grant require as a

20 condition to receiving funds a certification of compliance with 8 U.S.C. §§ 1373 and

21 1644. Both statutes violate the Tenth Amendment by giving direct orders to State and

22 local governments. See id. at 1476; see also Philadelphia, 309 F. Supp. 3d at 331

23 (holding Section 1373 unconstitutional under the anticommandeering doctrine); Chicago,

24 2018 WL 3608564, at *13 (same); City & Cty. of San Francisco v. Sessions, No. 3:17-cv-

25 04642, Dkt. 145 at 23-31 (N.D. Cal. Oct. 5, 2018) (same); United States v. California,

26 314 F. Supp. 3d 1077, 1101 (E.D. Cal. 2018) (stating that “the constitutionality of Section

27 1373 is highly suspect”).

28

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1

28. In addition, DOJ requires, as a condition for receiving FY 2018 Byrne JAG

2 funds and Juvenile Gang Prevention Grant funds, that jurisdictions certify that they will

3 not “impede” the exercise of authority of federal agents under a number of federal

4 statutes including 8 U.S.C. §§ 1226(a),(c), 1231(a), 1357(a)(1), and 1366(1),(3).8

5 Jurisdictions also must “not . . . publicly disclose federal law enforcement information in

6 an attempt to conceal, harbor, or shield certain individuals from detection, including in

7 violation of 8 U.S.C. § 1324(a)” and must certify that they do not have “any law, rule,

8 policy, or practice” that would “require or authorize the public disclosure of federal law

9 enforcement information in order to conceal, harbor, or shield from detection fugitives

10 from justice or aliens illegally in the United States.”

11

29. But those statutes do not concern States or localities and thus have no

12 bearing here. DOJ’s apparent interpretations of those provisions as imposing mandates

13 on State and local governments is an unconstitutional effort to commandeer those States

14 and localities to participate in federal civil immigration enforcement. See Chicago, 888

15 F.3d at 282; California, 314 F. Supp. 3d at 1106-08.

16

30. These requirements are especially disturbing because they do not exist in a

17 vacuum. High-ranking members of the Trump Administration have publicly proposed

18 arresting and prosecuting local elected officials in jurisdictions that decline to participate

19 in federal civil immigration enforcement for “harboring.”

20

31. In short, the required certifications put elected officials in Los Angeles in the

21 untenable position of either: (1) certifying compliance with statutes that are not

22 applicable and could not constitutionally be applicable to the City, and undermining the

23 Los Angeles Police Department’s (“LAPD”) relationship with the immigrant community

24 and threatening public safety; or (2) forfeiting FY 2018 Byrne JAG funding and Juvenile

25

26 8 The 2018 Byrne JAG grant requires the certifications be executed by the Mayor and the
27 Chief Legal Officer. The Juvenile Gang Prevention solicitation requires the City
28 Attorney execute the certifications.

12
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Case 2:18-cv-07347-R-JC Document 40 Filed 10/05/18 Page 14 of 52 Page ID #:192

1 Gang Prevention Grant funding used to support local criminal justice and juvenile

2 delinquency prevention efforts through combating gangs and violent crime.

3

32. Fourth, the conditions placed by DOJ on recipients of the FY 2018 Byrne

4 JAG funding and the Juvenile Gang Prevention Grant funding violate the Administrative

5 Procedure Act (“APA”) because, in promulgating the new conditions, DOJ did not rely

6 on any analysis or findings to support its implicit premise that individuals whom DHS

7 believes may be unlawfully present in the United States commit more crime than do

8 individuals legally resident in the country, and in fact failed to consider the substantial

9 evidence to the contrary. For this reason, DOJ’s attempt to attach the immigration-

10 related conditions to FY 2018 Byrne JAG funding and the Juvenile Gang Prevention

11 Grant funding is arbitrary and capricious in violation of the APA.

12

33. In short, DOJ’s unilateral and unauthorized attempt to hold hostage federal

13 funding that Congress authorized to support State and local criminal justice programs and

14 local juvenile delinquency prevention, and to instead cause State and local agencies to

15 assist with federal civil immigration enforcement, is unconstitutional and unlawful, and

16 cannot be allowed to stand. Los Angeles seeks injunctive relief to ensure that DOJ does

17 not evade constitutional restraints, Congressional intent, and judicial rulings protecting

18 federal funding for State and local law enforcement criminal justice and local juvenile

19 delinquency prevention efforts.

20

JURISDICTION AND VENUE

21

34. This Court has jurisdiction under 28 U.S.C. §§ 1331 and 1346. The Court

22 also has authority to award the relief requested pursuant to 5 U.S.C. §§ 702, 705, 706,

23 and 28 U.S.C. §§ 1361, 2201–2202.

24

35. Venue is proper in this District under 28 U.S.C. § 1391(e) because Plaintiff

25 resides in this District and a substantial part of the events or omissions giving rise to this

26 action occurred in this District.

27

28

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1

PARTIES

2

36. Plaintiff Los Angeles is a municipal corporation organized and existing

3 under the laws of the State of California, and is a charter city pursuant to Article XI of the

4 California Constitution.

5

37. Defendant Jefferson B. Sessions, III is the Attorney General of the United

6 States. The Attorney General is charged with the administration and enforcement of

7 federal criminal law and policy, and oversees the U.S. Department of Justice, which

8 administers both the Byrne JAG and the Juvenile Gang Prevention Grants. Defendant

9 Sessions has supervisory responsibility and is sued in his official capacity.

10

38. Defendant U.S. Department of Justice is an agency of the United States.

11 The Bureau of Justice Assistance (“BJA”) is a component of OJP. BJA’s stated mission

12 is “to provide leadership and services in grant administration and criminal justice policy

13 development to support local, state, and tribal justice strategies to achieve safer

14 communities.” BJA administers the Byrne JAG Program. OJJDP is also a component of

15 OJP. OJJDP’s mission is to “provide national leadership, coordination, and resources to

16 prevent and respond to juvenile delinquency and victimization.” OJJDP administers the

17 Juvenile Gang Prevention Grant.

18

39. Defendant Laura Rogers is Acting Principal Deputy Assistant Attorney

19 General of OJP at DOJ and oversees both BJA and OJJDP. Defendant Rogers has

20 supervisory responsibility and is sued in her official capacity.

21

FACTUAL ALLEGATIONS

22

A. Policies and Practices of the City of Los Angeles’ Police Department

23

40. For nearly four decades, LAPD has implemented policies and practices

24 designed to promote the public safety of the residents of Los Angeles by engendering

25 cooperation and trust between its law enforcement agencies and officers on the one hand,

26 and members of the City’s many immigrant communities on the other. The fundamental

27 goal of these local policies and practices has been to encourage crime victims and

28 witnesses of criminal conduct to cooperate with LAPD, irrespective of their immigration

14
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1 status. The policy is critical to public safety, especially in Los Angeles, in light of the

2 significant size of the immigrant population here. Central to these policies has been the

3 determination by local law enforcement and its civilian overseers to devote local

4 resources to local criminal justice efforts and leave to the federal government the

5 investigation and enforcement of federal civil immigration laws.

6

41. For example, approximately 40 years ago, in 1979, LAPD began a policy

7 known as “Special Order 40”—adopted by the Los Angeles Board of Police

8 Commissioners and signed by then-Chief of Police Daryl Gates—that restricts an LAPD

9 officer from initiating a police action with the objective of discovering a person’s

10 immigration status, and also prohibits arrests based solely on that status.

11

42. The policy behind Special Order 40, as expressed by the LAPD Board of

12 Police Commissioners nearly 40 years ago, is “the principle that effective law

13 enforcement depends on a high degree of cooperation between the Department and the

14 public it serves.” This policy was adopted to ensure that individuals, regardless of their

15 civil immigration status, would report crimes to the LAPD and assist the LAPD in

16 apprehending and prosecuting those individuals responsible for criminal acts.

17

43. The provisions of Special Order 40, which are reflected in various forms in

18 LAPD’s existing policies and procedures, are also consistent with current federal and

19 State law, because the policy restricts LAPD’s initiating a detention based on an

20 individual’s civil immigration status, and arresting an individual for a misdemeanor

21 violation that did not occur in the officer’s presence.

22

44. The LAPD policies promulgated after Special Order 40 are compliant with

23 existing federal law. In the 2009 case, Sturgeon v. Bratton, the California Court of

24 Appeal rejected a legal challenge to Special Order 40—as set forth in Section 4/264.50 of

25 the LAPD Manual—ruling that the language of the policy does not conflict with 8 U.S.C.

26 § 1373 (“Section 1373”), and is not invalid. As the Court of Appeal recognized, Section

27 1373 addresses certain communications between federal and State or local authorities;

28 Special Order 40 does not address that issue, but rather prohibits police officers from

15
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Case 2:18-cv-07347-R-JC Document 40 Filed 10/05/18 Page 17 of 52 Page ID #:195

1 initiating police action to determine immigration status and making arrests for illegal

2 entry. 174 Cal. App. 4th 1407 (Cal. Ct. App. 2009). It has nothing to do with

3 communications between LAPD and federal authorities.

4

45. In 2014, LAPD adopted a practice of refusing to detain individuals,

5 otherwise eligible for release from custody under State law, on the basis of requests from

6 U.S. Immigration and Customs Enforcement (“ICE”) unless the requests are supported by

7 a judicial determination of probable cause, or a valid warrant from a judicial officer. This

8 practice was developed in response to judicial decisions declaring compliance with

9 warrantless ICE requests to be unconstitutional, and thereby subjecting LAPD to

10 potentially significant liability for violations of the Fourth Amendment. See, e.g.,

11 Miranda-Olivares v. Clackamas County, No. 3:12-cv-02317-ST, 2014 WL 1414305, at

12 *11 (D. Or. Apr. 11, 2014). In addition, this practice supports LAPD’s robust community

13 policing strategy focused on preventing crime through community partnerships,

14 collaborative problem solving, and building public trust consistent with the law—

15 essential components to reducing crime and protecting the public from harm.

16

46. When a member of LAPD arrests an individual in connection with a

17 criminal offense, the arrestee may be cited and released in the field where circumstances

18 warrant, or taken to one of LAPD’s ten jail detention facilities for booking. Those LAPD

19 jail facilities are categorized by the State of California as Type I facilities, which are local

20 detention facilities used for the temporary, short-term detention of persons who may be

21 held for no more than 96 hours. In practice, persons arrested by members of LAPD

22 generally are kept in LAPD custody for no more than 48 hours after arrest because of the

23 limitations imposed by State law and the Constitution with respect to the period of time

24 within which law enforcement agencies must: (1) obtain a probable cause determination

25 that an arrested individual committed a criminal offense to support the detention of the

26 individual without a warrant; and (2) transfer a detainee to court for arraignment. See

27 Cal. Pen. Code § 825; Cty. of Riverside v. McLaughlin, 500 U.S. 44 (1991).

28

16
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1

47. In many situations, arrestees are eligible for release from custody within a

2 few hours of arrest and booking, including by posting bail or bond, on their own

3 recognizance, or by a certificate of release.

4

48. While arrestees are in LAPD custody, LAPD permits DHS and ICE

5 personnel access to LAPD detention facilities to interview individual arrestees regarding

6 civil immigration status. LAPD does so consistent with the State statutory requirement

7 that such persons be provided with advance written notice explaining the purpose of the

8 interview, that the interview is voluntary, and that the person may decline to speak or opt

9 to be interviewed only in the presence of his or her attorney. See California TRUTH Act,

10 Cal. Gov. Code § 7283 et seq. LAPD obtains a written expression of the arrestee’s

11 willingness prior to the interview. If the arrestee declines the interview, LAPD does not

12 provide DHS and ICE personnel access to that individual in its facilities.

13

B. The Edward Byrne Memorial Justice Assistance Grant Program

14

49. Congress established the Byrne JAG Program to make grants “for use by the

15 State or unit of local government” in order to provide seven types of support for criminal

16 justice efforts, i.e., “additional personnel, equipment, supplies, contractual support,

17 training, technical assistance, and information systems for criminal justice.” 34 U.S.C.

18 § 10152(a)(1). Congress specified that these funds be used “for any one or more of the

19 following programs”:

20

• “Law enforcement programs.”

21

• “Prosecution and court programs.”

22

• “Prevention and education programs.”

23

• “Corrections and community corrections programs.”

24

• “Drug treatment and enforcement programs.”

25

• “Planning, evaluation, and technology improvement programs.”

26

• “Crime victim and witness programs (other than compensation).”

27

• “Mental health programs and related law enforcement and corrections

28

programs, including behavioral programs and crisis intervention teams.”

17
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1 Id. § 10152(a)(1)(A)-(H).

2

50. Byrne JAG funding is administered by BJA within OJP. Id. §§ 10151-58.

3 Each fiscal year, BJA provides State and local government awardees with funds that, in

4 general, may be used over a period of four years.

5

51. In awarding funds, BJA must follow the congressionally-mandated formula

6 to allocate funds to eligible States and local governments. By statute, Congress required

7 that funding be allocated based on two factors: population and rate of violent crime. The

8 Attorney General must allocate 50 percent of the available funds to each State recipient in

9 amounts proportionate to its population. Id. § 10156(a). The remaining 50 percent of the

10 funds is allocated to each State recipient in amounts proportionate to its rate of violent

11 crime. Id. Of the total amount allocated to a State, 60 percent is provided as a direct

12 grant to the State, and 40 percent as grants for local governments in that State. Id. §

13 10156(b)(2), (d).

14

52. Local governments wishing to receive a grant must submit an award

15 application to BJA. In order to be eligible for an award, Congress specified that an

16 applicant must furnish certain reasonable and grant-specific certifications and assurances

17 related to the application or administration of the grant. Specifically, Congress

18 enumerated two certifications and three assurances that an applicant must make:

19

• “A certification that Federal funds made available under this part will not be

20

used to supplant State or local funds, but will be used to increase the

21

amounts of such funds that would, in the absence of Federal funds, be made

22

available for law enforcement activities.” Id. § 10153(a)(1).

23

• “An assurance that, not fewer than 30 days before the application (or any

24

amendment to the application) was submitted to the Attorney General, the

25

application (or amendment) was submitted for review to the governing body

26

of the State or unit of local government (or to an organization designated by

27

that governing body).” Id. § 10153(a)(2).

28

18
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1

• “An assurance that, before the application (or any amendment to the

2

application) was submitted to the Attorney General (A) the application (or

3

amendment) was made public; and (B) an opportunity to comment on the

4

application (or amendment) was provided to citizens and to neighborhood or

5

community-based organizations, to the extent applicable law or established

6

procedure makes such an opportunity available.” Id. § 10153(a)(3).

7

• “An assurance that, for each fiscal year covered by an application, the

8

applicant shall maintain and report such data, records, and information

9

(programmatic and financial) as the Attorney General may reasonably

10

require.” Id. § 10153(a)(4).

11

• “A certification . . . that (A) the programs to be funded by the grant meet all

12

the requirements of this part; (B) all the information contained in the

13

application is correct; (C) there has been appropriate coordination with

14

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

15

this part and all other applicable Federal laws.” Id. § 10153(a)(5).

16

53. Byrne JAG applications are accepted through an online program. In order to

17 complete the application, a representative of the applicant is required to electronically

18 sign a page stating that the applicant will comply with standard “assurances” promulgated

19 by the Office of Management and Budget. These assurances include that, “throughout

20 the period of performance for the award,” “the Applicant will comply with all award

21 requirements.”

22

54. When BJA approves an application for a Byrne JAG award, BJA requires

23 the recipient to agree to an additional set of “Special Conditions.” These conditions

24 generally relate to the administration of the grant or the use of grant funds. The “Special

25 Conditions” imposed in Los Angeles’ fiscal year FY 2016 grant award (the last year in

26 which Byrne JAG funds were released to Los Angeles) governed various aspects of how

27 the City would be required to administer its Byrne JAG award, such as a “[r]equirement

28 for data on performance and effectiveness under the award,” “[r]equirements related to

19
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1 System for Award Management and Unique Entity Identifiers,” compliance with civil 2 rights and nondiscrimination regulations in the administration of the award, and reporting 3 of any fraud, waste, and abuse in the award implementation.

4

C. The City of Los Angeles Uses Byrne JAG Funds For Critical Local

5

Criminal Justice Needs

55. Each year since 1997, the City of Los Angeles has been approved for more 6

than $1 million in funding under the Byrne JAG Program (and its predecessor). 7

56. In the FY 2016 application cycle, Los Angeles applied for and received 8

approximately $1.8 million in Byrne JAG funding for FY 2016 through FY 2019. 9

Approximately $800,000 of the funding went to the County of Los Angeles as a 10

subgrantee, and $1 million remained with the City. For FY 2016, Los Angeles received 11

its funding directly from the federal government as part of a formula grant, see 34 U.S.C. 12

§ 10156(d), not as a distribution from the Byrne JAG funds awarded separately to the 13

State of California. 14

57. Byrne JAG funds support important criminal justice programs in Los 15

Angeles. Specifically, the City’s FY 2016 Byrne JAG funds assist in funding its 16

Community Law Enforcement and Recovery (“CLEAR”) program, which aims to reduce 17

gang violence in Los Angeles and rehabilitate communities that have experienced 18

significant criminal activity. Through effective collaboration among several city, county, 19

and state criminal justice agencies, the program targets high-crime areas and promotes 20

community recovery by working closely with special criminal investigative units, an 21

aggressive vertical prosecutorial program, probation and parole officers, youth 22

intervention organizations, and schools. 23

58. The CLEAR program has been successful. In 2014, the CLEAR program 24

25 areas had 22 percent less gang crime over a three-year period than similar non-CLEAR

areas. For FY 2016, the Byrne JAG funds supported 20 to 30 percent of the salaries for 26

nine Deputy City Attorneys, nine Deputy District Attorneys, and nine Deputy Probation 27

officers related to the CLEAR program. 28

20
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1

59. The City’s use of Byrne JAG funds to support the CLEAR program and

2 reduce local violent crime advances the core criminal justice mission of the Byrne JAG

3 Program. The CLEAR program’s key to success in reducing violent crime in targeted

4 neighborhoods has been the dedication of various agency assets to the goal of reducing

5 crime in CLEAR sites. Each CLEAR site includes an operational team made up of

6 representatives from LAPD, the County District Attorney’s Office, the City Attorney’s

7 Office, and the County Probation Department. In addition to their focus on reducing

8 crime, the CLEAR team members collaborate with residents within each CLEAR site

9 through the creation of a Community Impact Team. Community members on the team

10 identify effective community organizations in their CLEAR area, and facilitate a

11 relationship between those organizations and CLEAR team members to secure support

12 from individuals and businesses within the community.

13

60. The year-over-year federal funding for the CLEAR program has been a

14 catalyst for turning Los Angeles into a leader on coordinated approaches to seemingly

15 intractable issues related to local violent crime in general, and gang-related violence in

16 particular. The CLEAR model was innovative, and went beyond the traditional methods

17 of criminal suppression. It combined, in one program, elements which have been copied

18 by numerous other jurisdictions, and are now a common approach to addressing not only

19 gang violence, but violent crimes generally. These elements, such as vertical prosecution

20 of all cases, regular sharing of best practices from public safety teams in various parts of

21 the City, and community outreach, have significantly informed the creation of other

22 innovative approaches to criminal justice in the City, such as the City Attorney’s

23 neighborhood prosecutor program.

24

61. On October 4, 2018, Los Angeles received its 2017 Byrne JAG award.

25 Despite this Court’s entry of a preliminary injunction prohibiting DOJ from imposing its

26 unlawful immigration conditions, see City of Los Angeles v. Sessions, No. 17-cv-07215-

27 R, Order Granting Plaintiff’s Application for Preliminary Injunction, Dkt. 93 (C.D. Cal.

28

21
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1 Sept. 13, 2018), DOJ has included the unlawful conditions in Los Angeles’s FY 2017

2 Byrne JAG award document.

3

62. The City submitted its application for FY 2018 Byrne JAG funding, in

4 advance of the deadline of August 22, 2018. If Los Angeles were to be deprived of its

5 statutorily authorized FY 2018 Byrne JAG funding as well, Los Angeles would lose

6 valuable resources needed to enhance its local criminal justice efforts and advance public

7 safety. Consistent Byrne JAG funding ensures that the CLEAR staff can continue to

8 dedicate their time to their roles within the CLEAR team. The funding also ensures that

9 the City’s continued dedication to cross-agency collaboration will pave the way for future

10 successes and innovations still to come.
D.The Juvenile Gang Prevention Grant Program 11
63. Congress created the Juvenile Gang Prevention Grant under authority of 12
Subchapter II, Part E of the Juvenile Justice Act. In the 2018 Consolidated 13
Appropriations Act, Pub. L. No. 115-141, Mar. 23, 2018, 132 Stat. 348, 423, Congress 14
provided “$27,500,000 for delinquency prevention, as authorized by section 505 of the 15
[Juvenile Justice] Act, of which, pursuant to sections 261 and 262 [34 U.S.C. §§ 11171 16
and 11172] thereof . . . (B) $4,000,000 shall be for gang and youth violence education, 17
prevention and intervention, and related activities.” (emphasis added). 18
64. Congress specified three purposes in Subchapter I and Subchapter II of the 19
Juvenile Justice Act: “to support State and local programs that prevent juvenile 20
involvement in delinquent behavior,” 34 U.S.C. § 11102(1); “to assist State and local 21
governments in promoting public safety by encouraging accountability for acts of 22
juvenile delinquency,” id. § 11102(2), and “to assist State and local governments in 23
addressing juvenile crime through the provision of technical assistance, research, 24
training, evaluation, and the dissemination of information on effective programs for 25
combating juvenile delinquency,” id. § 11102(3). 26
65. Congress, in Part E of Subchapter II, authorized OJJDP to “make grants to 27
. . . units of general local government . . . to carry out projects for the development, 28

22
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1 testing, and demonstration of promising initiatives and programs for the prevention,

2 control, or reduction of juvenile delinquency.” Id. § 11171(a). In enacting the Juvenile

3 Justice Act, Congress declared that the problem of local juvenile delinquency should be

4 addressed through a “2-track common sense approach that addresses the needs of

5 individual juveniles and society at large by promoting (A) quality prevention programs

6 that (i) work with juveniles, their families, local public agencies, and community-based

7 organizations, and take into consideration such factors as whether or not juveniles have

8 been victims of family violence (including child abuse and neglect); and (ii) are designed

9 to reduce risks and develop competencies in at-risk juveniles that will prevent, and reduce

10 the rate, violent delinquent behavior; and (B) programs that assist in holding juveniles

11 accountable for their actions and in developing the competencies necessary to become

12 responsible and productive members of their communities . . . .” Id. § 11101(a)(10).

13

66. The Juvenile Gang Prevention Grant is administered by the OJJDP within

14 OJP. Id. §§ 11111(a), 11171(a). This is the first fiscal year for which OJJDP will

15 provide award funds under the Juvenile Gang Prevention Grant. See OJJDP FAQ at 1.

16 OJJDP expects to make up to five awards of up to $200,000 each for an 18-month period

17 of grant performance. See OJJDP Solicitation at 12.

18

67. In order to be eligible for an award, applicants must submit an application to

19 OJJDP “at such time, in such form, and containing such information as the Administrator

20 may reasonably require by rule.” 34 U.S.C. § 11173. Although not a formula grant,

21 Congress limited the discretion of OJJDP by requiring such grants to be made, “to the

22 extent reasonable and practicable, . . .to achieve an equitable geographical distribution of

23 such projects throughout the United States.” Id. § 11171(a).

24

68. The Juvenile Gang Prevention Grant program applications are accepted

25 through an online program. In order to receive award funds, a representative of the

26

27

28

23
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1 applicant is required to execute “Certified Standard Assurances”.9 These assurances

2 include that “throughout the period of performance for the award,” the “Applicant will

3 comply with all award requirements[.]”

4

69. OJJDP will require any applicant selected for funding under the Juvenile

5 Gang Prevention Grant program to agree to a set of “award conditions.” These

6 conditions generally relate to the administration of the grant or the use of grant funds,

7 such as “[r]equirement for data on performance and effectiveness under the award,”

8 “[r]equirements related to System for Award Management and Unique Entity

9 Identifiers,” compliance with civil rights and nondiscrimination regulations in the

10 administration of the award, and reporting of any fraud, waste, and abuse in the award

11 implementation. The “award conditions” may also include additional conditions that may

12 relate to the particular statute, program, or solicitation under which the award is made. Id.

13

70. Along with the “award conditions,” a successful applicant will be required to

14 execute certifications regarding lobbying; debarment, suspension and other responsibility

15 matters, and drug-free workplace requirements. Id.

16

E. The City of Los Angeles Intends to Use the Juvenile Gang Prevention

17

Grant Funds To Combat Local Juvenile Crime Perpetrated by MS-13 and Other Criminal Gangs

18

71. Since 2012, criminal activity in and around the MacArthur Park area of the

19 City has increased. Crime data and interviews with community members suggests that

20 the increase may be a direct result of suspected gang activities of the MS-13 gang. Thus,

21 the City has an important need to study and curtail the activities and recruitment efforts

22

23

24

25

26 9 See OJJDP Solicitation at 38. See also Certified Standard Assurances, U.S. Department
27 of Justice, OMB Approval Number 1121-0140, available at
28 http://ojp.gov/funding/Apply/Resources/StandardAssurances.pdf.

24
FIRST AMENDED COMPLAINT

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1 of the MS-13 gang in Los Angeles and to develop strategies to prevent related juvenile

2 delinquency in local communities.

3

72. The LAPD is seeking the Juvenile Gang Prevention Grant funds to create a

4 framework and strategic plan to combat local juvenile gang crime and violence that

5 involves the MS-13 gang. During the 18-month project, the LAPD will undertake

6 strategic planning and capacity building through a data-driven approach. The project will

7 be coordinated by LAPD’s Detective Bureau and will involve the Gang and Narcotics

8 Division, detectives and patrol officers at specific Patrol Divisions, a research team from

9 Justice & Security Strategies, Inc. (JSS) and Arizona State University, and internal and

10 external experts. Other partners will be included as the project develops.

11

73. The Juvenile Gang Prevention Grant funds would support LAPD’s goals of:

12 (1) using gang intelligence to achieve an enhanced understanding of MS-13 and how it is

13 affecting local communities; (2) reducing gun and gang violence among youth in specific

14 areas of the City that are identified through data analysis; (3) preventing violence within

15 affected local communities; and (4) increasing safety among youth, families, and local

16 communities affected by MS-13.

17

F. Multiple Courts Have Rejected DOJ’s Imposition of These Types Of

18

Federal Civil Immigration-Related Conditions for FY 2017 Byrne JAG Awards

19

20

74. In the FY 2017 funding cycle, DOJ imposed immigration-related conditions

21 in its solicitation for the FY 2017 Byrne JAG applications. On August 3, 2017, BJA

22 issued that solicitation for applications from local governments for FY 2017 Byrne JAG

23 grants. One immigration-related condition in the agency’s solicitation stated that

24 applicants were required to certify compliance with Section 1373 in order to qualify for

25 Byrne JAG funding (the “1373 Condition”).10 The FY 2017 Byrne JAG application

26 10 Bureau of Justice Assistance, Office of Justice Programs, U.S. Department of Justice,
27 “Edward Byrne Memorial Justice Assistance Grant Program: FY 2017 Local
28 Solicitation,” available at https://www.bja.gov/Funding/JAGLocal17.pdf (“Solicitation”).

25
FIRST AMENDED COMPLAINT

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1 would not be considered complete without that certification, which meant jurisdictions

2 that were awarded Byrne JAG funds but that did not complete the 1373 Certification

3 would be prohibited from drawing down grant funds.

4

75. Separately, DOJ’s FY 2017 solicitation stated that the agency’s award would

5 include two other, immigration-related conditions. Those two conditions, referred to

6 below as the “2017 Access Condition” and the “2017 Notice Condition”—as presented in

7 FY 2017 Byrne JAG awards that DOJ has already disbursed—required that “as of the

8 date the recipient accepts [its] award,” the recipient must have in place “[a] local

9 ordinance, -rule, -regulation, -policy, or -practice (or an applicable State statute, -rule, -

10 regulation, -policy, or -practice)” that is “designed to ensure” that:

11

a. “agents of the United States acting under color of federal law in fact

12

are given access [to] a local-government (or local-government-contracted)

13

correctional facility for the purpose of permitting such agents to meet with

14

individuals who are (or are believed by such agents to be) aliens and to inquire as

15

to such individuals’ right to be or remain in the United States” (the “2017 Access

16

Condition”); and

17

b. “when a local-government (or local-government contracted)

18

correctional facility receives from DHS a formal written request authorized by the

19

Immigration and Nationality Act that seeks advance notice of the scheduled release

20

date and time for a particular alien in such facility, then such facility will honor

21

such request and--as early as practicable (see ‘Rules of Construction’ incorporated

22

by para. 4.B. of this condition--provide the requested notice to DHS.” (the “2017

23

Notice Condition”).

24 Greenville Award, ¶ 56(1) (emphasis added), attached hereto as Exhibit A.

25

76. In addition, the “Rules of Construction” referenced in DOJ’s 2017 Notice

26 Condition stated: “Nothing in this condition shall be understood to authorize or require

27 any recipient, any subrecipient at any tier, any State or local government, or any other

28 entity or individual to maintain (or detain) any individual in custody beyond the date and

26
FIRST AMENDED COMPLAINT

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1 time the individual would have been released in the absence of this condition.” Id. ¶¶ 55-

2 56, at Para. 4.B.

3

77. The DOJ 2017 Rules of Construction also stated: “Current DHS practice is

4 ordinarily to request advance notice of scheduled release ‘as early as practicable (at least

5 48 hours, if possible).’ (See DHS Form I-247A (3/17)). In the event that (e.g., in light of

6 the date DHS made such request) the scheduled release date and time for an alien are

7 such as not to permit the advance notice that DHS has requested, it shall not be a

8 violation of this condition to provide only as much advance notice as practicable.” Id.

9

78. This Court, in an order issued on September 13, 2018, held that DOJ’s

10 Access Condition and the Notice Condition for the FY 2017 Byrne JAG grant were ultra

11 vires and violated the separation of powers.11

12

G. DOJ Imposes Conditions, Certifications, and Questions Relating to

13

Federal Civil Immigration Enforcement on the Agency Solicitation for

the FY 2018 Byrne JAG and the Juvenile Gang Prevention Grant

14

Despite Contrary Court Rulings in FY 2017 Byrne JAG Litigation.

15

79. In the FY 2018 Byrne JAG and the Juvenile Gang Prevention Grant funding

16 solicitations, released on July 20, 2018 and September 7, 2018, respectively, DOJ

17 doubles-down by: (1) employing new versions of the conditions that have previously

18 been enjoined as unlawful, now disguised as requirements purportedly imposed by

19 various preexisting statutes; (2) adding new, unconstitutional conditions; (3) requiring

20 unlawful certifications by the City’s Mayor and/or Chief Legal Officer after implied

21 threats of criminal arrest of local officials in jurisdictions that do not cooperate with

22 federal immigration enforcement; and (4) mandating that the City disclose to the federal

23

24

25 11 Additionally, the United States Court of Appeals for the Seventh Circuit, as well as
26 federal district courts in Chicago and Philadelphia, held that the Access Condition and the
27 Notice Condition for the FY 2017 Byrne JAG grant were ultra vires and violated the separation of powers. The Chicago and Philadelphia district courts also held that the
28 1373 Condition was unlawful because 8 U.S.C. § 1373 is unconstitutional.

27
FIRST AMENDED COMPLAINT

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1 government information relating to civil immigration practices in Los Angeles

2 (collectively referred to as the “Challenged Conditions”).

3

80. For both grants, DOJ requires that applicants, “in order to validly accept” the

4 grant award, “must submit[] the specific certifications regarding compliance with certain

5 federal laws attached to” each solicitation. 2018 Solicitation at 1; OJJDP Solicitation at

6 2. Confirming the finality of its decision, DOJ has included the Challenged Conditions

7 when disbursing FY 2018 Byrne JAG awards. See FY 2018 Byrne JAG Award for the

8 City of Providence, attached as Exhibit B. Accordingly, DOJ will not provide federal

9 funds to applicants unless they certify to the Conditions.

10

(1) The “1373 and 1644” Condition

11

81. DOJ imposes in both the 2018 Byrne JAG and the Juvenile Gang Prevention

12 Grant solicitations conditions on the receipt of an award that would require compliance

13 with an interpretation of various federal statutes which would violate the Tenth

14 Amendment if construed to impose such a requirement. Not only does DOJ carry over

15 the unconstitutional requirement for agencies to certify compliance with 8 U.S.C. §

16 1373,12 but now also requires agencies to certify compliance with 8 U.S.C. § 1644.13

17

82. 8 U.S.C. §§ 1373 and 1644 are not “applicable” laws within the meaning of

18 34 U.S.C. § 10153(a)(5)(D), and thus cannot support a certification of compliance

19 requirement because they have no relevance to federal grants or the subject matter of the

20 either the Byrne JAG or the Juvenile Gang Prevention Grant program. Moreover,

21 Section 1373 is not a valid federal law at all, as it violates the Tenth Amendment, as

22

23 12 See Philadelphia, 309 F. Supp. 3d at 331 (holding Section 1373 unconstitutional under
24 the anticommandeering doctrine); Chicago, 2018 WL 3608564, at *13 (same); San
25 Francisco, No. 3:17-cv-04642, Dkt. 145 at 23-31 (same); see also California, 2018 WL 3301414, at *14.
26 13 Section 1644 is similar to Section 1373 in that it states no State or local government
27 may be prohibited or restricted “from sending to or receiving from the Immigration and Naturalization Service information regarding the immigration status, lawful or unlawful,
28 of an alien in the United States.” 8 U.S.C. § 1644.

28
FIRST AMENDED COMPLAINT

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1 recognized by the Chicago and Philadelphia district courts. Section 1644, as applied by

2 DOJ here to impose a mandate on States and local governments, is likewise

3 unconstitutional. Accordingly, DOJ lacks authority to require Byrne JAG or Juvenile

4 Gang Prevention Grant applicants to certify compliance with either statute. This Court’s

5 intervention is required to invalidate these unconstitutional conditions.

6

(2) The “Notice and Access” Conditions.

7

83. DOJ included in both the 2018 Byrne JAG and the Juvenile Gang Prevention

8 Grant solicitations “Notice and Access” conditions that, in substance, are the same as

9 those that DOJ was enjoined from imposing by this Court and by federal courts in

10 Chicago and Philadelphia.14 Specifically, DOJ intends to condition the award of funding

11 under the Grants on a jurisdiction agreeing:

12

• “[n]ot to impede the exercise of the authority of the federal government

13

under 8 U.S.C. § 12[2]6(a) & (c)” (authorizing federal arrest and detention

14

of certain aliens based on a federal warrant, and providing mandatory federal

15

detention of certain criminal aliens) and 8 U.S.C. § 1231(a)(4) (relating to

16

completion of criminal terms of imprisonment prior to removal from the

17

United States, and exceptions allowing for removal of federal, state, and

18

local nonviolent offenders in some circumstances before completion of

19

prison term). The solicitations specify that recipients are required to do so

20

by providing “(where feasible) at least 48 hours’ advance notice to DHS

21

regarding the scheduled release date and time of an alien in the recipient’s

22

custody when DHS requests such notice in order to take custody of the alien

23

pursuant to the Immigration and Nationality Act.” (“Notice Condition”)

24

• “[n]ot to impede the exercise by DHS agents, ‘anywhere in or outside the

25

United States’ (8 C.F.R. § 287.5(a)(1)), of their authority under 8 U.S.C. §

26
27 14 City of Los Angeles v. Sessions, 293 F. Supp. 3d 1087 (C.D. Cal. 2018); City of Los Angeles v. Sessions, No. 17-cv-07215-R-JCx, Order Granting Plaintiff’s Application for
28 Preliminary Injunction [Dkt. 93], (C.D. Cal. Sept. 13, 2018).

29
FIRST AMENDED COMPLAINT

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1

1357(a)(1) to ‘interrogate any alien or person believed to be an alien as to

2

his right to be or to remain in the United States.’” The solicitations specify

3

that recipients are required to do so by permitting “DHS agents to have

4

access to any correctional facility in order to meet with an alien (or an

5

individual believed to be an alien) and inquire as to his right to be or remain

6

in the United States.” (“Access Condition,” collectively “Notice and Access

7

Conditions”)15

8

84. In the face of court orders enjoining DOJ based on a ruling that FY 2017

9 Notice and Access Conditions are unconstitutional, DOJ has shifted its tactics, apparently

10 attempting to justify its imposition of these conditions on recipient States and local

11 governments under the Byrne JAG statute’s “applicable Federal laws” provision. See 34

12 U.S.C. § 10153(a)(5)(D) (applicants must comply with “all provisions of this part and all

13 other applicable Federal laws”). DOJ has not identified any analogous statutory

14 provision under the Juvenile Gang Prevention Grant. Even in their new statutory garb,

15 the conditions remain unconstitutional. The statutes on which DOJ now attempts to rely

16 plainly do not impose any requirement on State and local governments, and construing

17 them to create a mandate on State and local governments to participate in federal civil

18 immigration enforcement and adjust their resources and practices accordingly would

19 violate the Tenth Amendment. The statutes also have nothing to do with federal grants,

20 local criminal justice, or juvenile delinquency reduction and prevention.

21

85. DOJ’s 2018 Byrne JAG solicitation also provides that “[t]he reasonable

22 costs . . . of complying with these conditions, including honoring any duly authorized

23

24 15 See 2018 Solicitation at 36-37; See also https://ojp.gov/funding/Explore/pdf/

25

FY18JAG_LOCAL_VARIOUS_Rev1003.pdf (Byrne JAG certification of compliance citing 8 U.S.C. §§ 1357(a), 1226(a), (c), and 1231(a));

26 https://ojp.gov/funding/Explore/pdf/FY18_GANGPLAN_VARIOUS_Rev1003.pdf

27

(Juvenile Gang Prevention Grant certification of compliance, citing 8 U.S.C. §§ 1357(a), 1226(a), (c), and 1231(a)); Ex. B ¶¶ 45 (citing 8 U.S.C. § 1357(a)), 46 (citing 8 U.S.C.

28 §§ 1226, 1231, and 1366). See also OJJDP Solicitation at 39-40.

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1 requests from DHS that is encompassed by these conditions, will be allowable costs

2 under the award.” 2018 Solicitation at 37. This provision would use the grant funds,

3 which Congress expressly designated for support of local criminal justice to unlawfully

4 fund State and local participation in federal civil immigration enforcement.

5

86. This Court’s intervention is required to invalidate these unlawful conditions.

6

(3) The “Harboring” Condition

7

87. Trump Administration officials have threatened to arrest local officials in so-

8 called “sanctuary” jurisdictions—i.e., jurisdictions the Trump Administration deems to be

9 uncooperative in federal civil immigration enforcement because the jurisdictions

10 prioritize their resources for use to protect the health and safety of their local residents

11 and leave to the federal government the enforcement of federal civil immigration laws.

12 In testimony before the Senate Judiciary Committee at a hearing on “Homeland Security

13 Oversight,” Secretary of Homeland Security Kirstjen Nielsen confirmed that, at DHS’s

14 request, DOJ is exploring such prosecution of local elected officials under 8 U.S.C. §

15 1324. Then-Acting Director of U.S. Immigration and Customs Enforcement Thomas

16 Homan likewise stated that the Justice Department should “file charges against the

17 sanctuary cities [referring to criminal prosecution of local officials and law enforcement

18 under 8 U.S.C. § 1324]” and “hold back their funding.”16 He stated that “we gotta start

19 charging some of these [sanctuary city] politicians with crimes.”17

20

88. Following these threats, DOJ’s Solicitations now condition a jurisdiction’s

21 statutorily-authorized FY 2018 Byrne JAG and Juvenile Gang Prevention Grant award on

22 the jurisdiction agreeing: “Not to violate, or aid or abet any violation of, 8 U.S.C. §

23 1324(a) (forbidding any ‘person,’ in ‘knowing or in reckless disregard of the fact that an

24
25 16 Brandon Conradis, Trump ICE Pick: Politicians Who Run Sanctuary Cities Should Be Charged With Crimes, THE HILL, Jan. 2, 2018,
26 http://thehill.com/homenews/administration/367167-trump-ice-pick-politicians-who-run-
27 sanctuary-cities-should-be-charged (quoting interview of then-acting ICE acting Director Thomas Homan with Fox News).
28 17 Id.

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1 alien has come to, entered, or remains in the United States in violation of law,’ to

2 ‘conceal, harbor, or shield from detection, or attempt to conceal, harbor, or shield from

3 detection, such alien in any place, including any building or any means of transportation’

4 or to ‘engage in any conspiracy to commit any of the preceding acts’…’or aid or abet the

5 commission of any of the preceding acts’).” As with the Notice and Access Conditions,

6 the FY 2018 Byrne JAG solicitation provides that “[t]he reasonable costs . . . of

7 complying with” the Harboring Condition is an “allowable cost[] under the award.”

8

89. The certification with respect to the Harboring Condition requires that

9 jurisdictions “not . . . publicly disclose federal law enforcement information in an attempt

10 to conceal, harbor, or shield certain individuals from detection, including in violation of 8

11 U.S.C. § 1324(a).”18 In addition, jurisdictions must certify that they will not “require or

12 authorize the public disclosure of federal law enforcement information in order to

13 conceal, harbor, or shield from detection fugitives from justice or aliens illegally in the

14 United States.” Id.

15

90. It is not clear what state and local laws and policies DOJ intends to capture

16 with its Harboring Condition.

17

91. DOJ’s imposition of the Harboring Condition is unlawful because 8 U.S.C.

18 § 1324 does not apply to States and local governments and could not be construed to do

19 so without violating the Tenth Amendment. The statute also has nothing to do with

20 federal grants, local criminal justice, or juvenile delinquency reduction and prevention.

21 This Court’s intervention is required to invalidate this unlawful condition.

22

(4) The “Questionnaire” Condition

23

24

25 18 See https://ojp.gov/funding/Explore/pdf/FY18JAG_LOCAL_VARIOUS_Rev1003.pdf

26 (Byrne JAG certification of compliance, citing 8 U.S.C. § 1324(a));

27

https://ojp.gov/funding/Explore/pdf/FY18_GANGPLAN_VARIOUS_Rev1003.pdf (Juvenile Gang Prevention Grant certification of compliance, citing 8 U.S.C. § 1324(a));

28 see also Ex. B ¶ 44 (citing 8 U.S.C. 1324 and 18 U.S.C. §§ 1071 and 1072).

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1

92. DOJ attempts to tether 2018 Byrne JAG and the Juvenile Gang Prevention

2 Grants awards to federal civil immigration enforcement through mandating that States

3 and local governments respond to certain civil immigration-related questions. Those

4 questions are:

5

• (1) “Does your jurisdiction have any laws, policies, or practices related to

6

whether, when, or how employees may communicate with DHS or ICE?”

7

• (2) “Is your jurisdiction subject to any laws from a superior political

8

entity (e.g., a state law that binds a city) that meet the description in question

9

1?” 2018 Solicitation at 52; OJJDP Solicitation at 30; Ex. B ¶ 62.

10

93. If the answer to either question is yes, the State or local government must

11 provide a copy of each law or policy; describe each practice; and explain how the law,

12 policy, or practice complies with Section 1373. Because the City of Los Angeles passes

13 through a portion of its Byrne JAG grant monies to other localities, the condition also

14 requires the City to collect this information from local governments that are its

15 subgrantees. The same would be true for the Juvenile Gang Prevention Grant. If any

16 subgrantee of money received by the City under the Juvenile Gang Prevention Grant is a

17 governmental agency, the City would be required to collect the requisite information

18 from the subgrantee.

19

94. For the 2018 Byrne JAG award, DOJ states that responses to the questions

20 “must be provided by the applicant as part of the JAG application” and that an agency

21 “will not be able to access award funds (and its award will include a condition that

22 withholds funds) until it submits these responses.” 2018 Solicitation at 28 (emphasis

23 added).

24

95. The Juvenile Gang Prevention Grant solicitation states that the questionnaire

25 “should” be submitted as an attachment to an agency’s applications and also says that

26 reviewers will, “as appropriate,” consider attachments, of which the questionnaire is one,

27 when rating applications. OJJDP Solicitation at 30.

28

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1

96. The information sought by DOJ is not relevant to either of the two Grants

2 and, in any event, has already been provided by the City to DOJ on multiple occasions in

3 different contexts (although not as a prerequisite to receiving grant funding). The

4 apparent purpose of the questionnaire is to help DOJ enforce its other unlawful

5 immigration-related conditions.

6

97. This Court’s intervention is required to invalidate this unlawful condition.

7

(5) The 1366 Condition

8

98. DOJ also conditions Byrne JAG and Juvenile Gang Prevention grants on a

9 jurisdiction’s certification of compliance with 8 U.S.C. § 1366(1) and (3). See Ex. B ¶

10 46.

11

99. 8 U.S.C. § 1366(1) and (3) require the Attorney General to submit various

12 reports to Congress. Section 1366 states that “the Attorney General shall submit to the

13 Committees on the Judiciary of the House of Representatives and of the Senate a report

14 detailing--(1) the number of illegal aliens incarcerated in Federal and State prisons for

15 having committed felonies, stating the number incarcerated for each type of offense . . .

16 [and] (3) programs and plans underway in the Department of Justice to ensure the prompt

17 removal from the United States of criminal aliens subject to removal . . . .” Those

18 provisions do not concern federal grants, local criminal justice, or juvenile delinquency

19 reduction and prevention. They are also not directed to States and local governments.

20

100. This Court’s intervention is required to invalidate this unlawful condition.

21

COUNT ONE

22 (2018 Byrne JAG: Violation of Separation of Powers / Ultra Vires Agency Action)

23

101. Los Angeles incorporates and re-alleges each and every allegation contained

24 above as if fully set forth herein.

25

102. Defendants’ imposition of immigration-related conditions, questionnaires,

26 and certifications on Byrne JAG grant applicants violates constitutional principles of

27 separation of powers and exceeds DOJ’s lawful authority.

28

103. The Constitution confers the power of the Spending Clause on Congress, not

34
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1 the Executive Branch. See U.S. Const. art. I, § 8, cl. 1. It is Congress, not an Executive

2 Branch agency, that has the constitutional authority to impose conditions on the receipt of

3 federal funds, and even that power is subject to limitations such as relatedness and clarity.

4 Defendants here are attempting to wield authority that is vested in Congress, not in DOJ.

5

104. Congress specifically directed that Byrne JAG funds be issued as grants “for

6 use by the State or unit of local government” in order to provide seven types of support

7 for local criminal justice efforts—“additional personnel, equipment, supplies, contractual

8 support, training, technical assistance, and information systems for criminal justice.” 34

9 U.S.C. § 10152(a)(1). Congress further enumerated eight types of criminal justice

10 programs appropriate for funding, such as “[l]aw enforcement programs,” “[p]rosecution

11 and court programs,” and “[p]revention and education programs.”

12 Id. § 10152(a)(1)(A)-(H). Enforcing federal civil immigration laws is not among the

13 enumerated programs.

14

105. The programs to which Congress directed Byrne JAG funding do not require

15 inducing State and local support for federal investigations of civil immigration status.

16 Yet, the FY 2018 Byrne JAG application authorizes funding for civil immigration-related

17 programs, and requires all jurisdictions to promise to assist in civil immigration

18 enforcement as a condition of receiving funding. Accordingly, DOJ has expressly and

19 unlawfully shifted money that Congress appropriated to advance local criminal justice

20 programs away from that clear statutory purpose to fund, instead, federal civil

21 immigration enforcement, in violation of the statute.

22

106. Congress specifically recognized when it created the Byrne JAG Program

23 that State and local governments maintain the sovereign police power to protect the

24 public health and safety of their residents by providing police departments with the

25 “flexibility to spend money for programs that work for them rather than to impose a ‘one

26 size fits all’ solution.” H.R. Rep. No. 109-233, at 89 (2005). The record shows Congress

27 intended to “lessen the administrative burden of applying for the grants.” Id. DOJ’s

28 blatant attempt to syphon monies from locally-driven Byrne JAG funded criminal justice

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1 programs, like the City’s CLEAR program, into a complex, “one size fits all” effort to

2 support federal civil immigration enforcement, clearly runs afoul of this congressional

3 enactment and purpose.

4

107. The Challenged Conditions are grossly inconsistent with the funding

5 formula for Byrne JAG grants established in 34 U.S.C. § 10156. BJA is required, by

6 congressional mandate, to allocate Byrne JAG funds based on a prescribed formula that

7 takes into account a State’s population, and the violent crime rates in a given State or

8 locality. 34 U.S.C. § 10156(a), (d). Congress enumerated specific certifications and

9 assurances the applicant must make to access these funds. Again, Congress did not

10 include a condition mandating local law enforcement involvement in federal civil

11 immigration enforcement.

12

108. The Challenged Conditions also violate an express rule of construction

13 imposed by Congress. Congress directed that the statute creating the Byrne JAG

14 Program not be construed to authorize DOJ to exercise “any direction, supervision, or

15 control over any police force or any other criminal justice agency of any State or any

16 political subdivision thereof.” 34 U.S.C. § 10228(a). The Challenged Conditions do just

17 that, asserting DOJ’s federal control over Los Angeles and its police department in the

18 operation of the City’s detention facilities.

19

109. Imposition of the Challenged Conditions also exceeds DOJ’s authority under

20 the statutory requirement that the applicant certify it “will comply with all provisions of

21 this part and all other applicable Federal laws.” 34 U.S.C. § 10153(a)(5)(D).

22

110. The 1373 Condition: 8 U.S.C. § 1373 is not an “applicable” law within the

23 meaning of Section 10153(a)(5)(D) because it has no relevance to federal grants or the

24 local criminal justice subject matter of the Byrne JAG Program. It is also not a valid

25 federal law, because it violates the Tenth Amendment. Accordingly, DOJ lacks authority

26 to require Byrne JAG applicants to certify compliance with 8 U.S.C. § 1373.

27

111. The 1644 Condition: 8 U.S.C. § 1644 is not an “applicable” law within the

28 meaning of Section 10153(a)(5)(D), because it has no relevance to federal grants or the

36
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1 local criminal justice subject matter of the Byrne JAG Program. Moreover, any

2 application of Section 1644 to impose a mandate on States and local governments would

3 violate the Tenth Amendment. Accordingly, DOJ lacks authority to require Byrne JAG

4 applicants to certify compliance with 8 U.S.C. § 1644.

5

112. The Notice and Access Conditions: DOJ cannot justify imposing the

6 Notice and Access Conditions for the 2018 grant process by requiring applicants to

7 certify that they do not “impede” federal officials’ performance of their duties under 8

8 U.S.C. §§ 1226(a), (c), 1231(a), and 1357(a)(1). These provisions do not purport to

9 impose any obligations on States and local governments, and so cannot be “applicable”

10 Federal laws within the meaning of Section 10153(a)(5)(D) for which an applicant could

11 be required to certify that it complies. If these statutes were construed to impose

12 requirements on States and local governments, any such application would violate the

13 Tenth Amendment. And even if these laws could constitutionally impose obligations on

14 States and local governments, and did in fact do so, they do not concern federal grants or

15 the local criminal justice subject matter of the Byrne JAG Program. For all of these

16 reasons, DOJ lacks authority to require Byrne JAG applicants to certify compliance with

17 8 U.S.C. § 1226(a), (c), 1231(a), and 1357(a)(1).

18

113. The Harboring Condition: 8 U.S.C. § 1324(a) does not apply to States and

19 local governments. If this statute were construed to impose requirements on States and

20 local governments, any such application would violate the Tenth Amendment. And even

21 if this law could constitutionally impose obligations on States and local governments, and

22 did in fact do so, it does not concern federal grants or the local criminal justice subject

23 matter of the Byrne JAG Program. For all of these reasons, DOJ lacks authority to

24 require Byrne JAG applicants “not to publicly disclose federal law enforcement

25 information in an attempt to conceal, harbor, or shield certain individuals from detection,

26 including in violation of 8 U.S.C. § 1324(a)” or to certify that they will not “require or

27 authorize the public disclosure of federal law enforcement information in order to

28

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1 conceal, harbor, or shield from detection fugitives from justice or aliens illegally in the

2 United States.”

3

114. The Questionnaire Condition: DOJ has not identified any federal law

4 requiring States and local governments to complete its questionnaire concerning

5 participation in federal civil immigration enforcement. Accordingly, the requirement of

6 certifying compliance with applicable Federal laws cannot justify imposition of the

7 Questionnaire Condition.

8

115. The 1366 Condition: 8 U.S.C. § 1366(1) and (3) require the Attorney

9 General to submit various reports to Congress. Those provisions do not concern federal

10 grants or the local criminal justice subject matter of the Byrne JAG Program. They are

11 also not directed to States and local governments.

12

116. In sum, DOJ is attempting to exercise a power it does not have. Defendants’

13 attempt to condition federal funding of local criminal justice programs in cities like Los

14 Angeles on the willingness of the award grantee to engage in federal civil immigration

15 enforcement violates the separation of powers enshrined in our Constitution and is ultra

16 vires in violation of the Byrne JAG statute.

17

COUNT TWO

18

(2018 Byrne JAG: Violation of the Spending Clause)

19

117. Los Angeles incorporates and re-alleges each and every allegation contained

20 above as if fully set forth herein.

21

118. Even if Congress could delegate the constitutional spending power to DOJ to

22 impose the Challenged Conditions (which it cannot), and even if it had done so (which it

23 has not), such power would be subject to constitutional restrictions that are not met here.

24 It is well established that the Spending Clause requires that conditions on providing

25 federal funds to States and local governments must, inter alia, be unambiguous, and be

26 sufficiently germane to the purpose of the federal funds. Otherwise, the “condition”

27 amounts to impermissible regulation and commandeering of States and local

28

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1 governments, in violation of the Tenth Amendment. The Challenged Conditions fail both

2 of these requirements.

3

119. Conditions placed on the use by States and localities of federal funds must

4 be stated unambiguously. “The legitimacy of Congress’ power to legislate under the

5 spending power thus rests on whether the State voluntarily and knowingly accepts” the

6 conditions, and there can be “no knowing acceptance if a State [or city] . . . is unable to

7 ascertain what is expected of it.” Pennhurst State Sch. & Hosp. v. Halderman, 451 U.S.

8 1, 17 (1981). It is Congress, not an agency, that must speak clearly in defining the type

9 of conditions at issue. But even if DOJ could satisfy this requirement by speaking with

10 the requisite clarity, it has not done so here. For example, it is not clear what state and

11 local laws and policies that DOJ intends to address with the Harboring Condition. Nor

12 has DOJ clearly and unambiguously stated whether the version of the Notice Condition

13 included in its FY 2018 solicitation would require States or localities to detain individuals

14 beyond their scheduled release date. These ambiguities do not allow Los Angeles to

15 ascertain exactly what is expected of it.

16

120. Conditions imposed on recipients of federal funding must “bear some

17 relationship to the purpose of the federal spending.” New York v. United States, 505 U.S.

18 144, 167 (1992). The Challenged Conditions concern federal civil immigration

19 enforcement, which is not sufficiently related—or related at all—to the purpose of the

20 Byrne JAG Program created by Congress specifically to support State and local criminal

21 justice efforts through certain types of support and programs.

22

COUNT THREE

23

(2018 Byrne JAG: Violation of Tenth Amendment and Anticommandeering)

24

121. Los Angeles incorporates and re-alleges each and every allegation contained

25 above as if fully set forth herein.

26

122. The Tenth Amendment prohibits the federal government from requiring

27 States and municipalities “to govern according to Congress’ instructions,” New York,

28 505 U.S. at 162, or “commanding the States’ officers . . . to administer or enforce a

39
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1 federal regulatory program.” Printz v. United States, 521 U.S. 898, 935 (1997). The

2 various federal statutes that DOJ attempts to use to justify the Challenged Conditions are

3 either unconstitutional in violation of the Tenth Amendment on their face, as applied to

4 State and local governments, or as DOJ interprets them to apply to State and local

5 governments.

6

123. The 1373 Condition: DOJ’s interpretation of 8 U.S.C. § 1373 to require

7 State and local governments to participate in federal civil immigration enforcement

8 violates the Tenth Amendment making it unconstitutional on its face. Section 1373

9 purports to “unequivocally dictate[ ] what a state legislature may and may not do” by

10 prohibiting States and localities from restricting their employees from communicating

11 with the federal government about a person’s citizenship and immigration status. See

12 Murphy, 138 S. Ct. at 1478; Philadelphia, 309 F. Supp. 3d at 331; Chicago, 2018 WL

13 3608564, at *10.

14

124. The 1644 Condition: 8 U.S.C. § 1644 does not impose mandates solely on

15 State and local governments, but to the extent it imposes on States and local governments

16 mandates similar to those imposed by 8 U.S.C. § 1373, it is unconstitutional as applied

17 for the same reasons.

18

125. The Notice and Access Conditions: 8 U.S.C. §§ 1226(a), (c), 1231(a), and

19 1357(a)(1) do not purport to impose any obligations on States and local governments.

20 However, if DOJ were permitted to interpret those statutes to impose an obligation on

21 States and local governments to participate in federal civil immigration enforcement,

22 those statutes would be unconstitutional as applied.

23

126. The Harboring Condition: 8 U.S.C. § 1324 does not purport to impose

24 any obligations on States and local governments. However, if DOJ were permitted to

25 interpret that statute to apply to State and local officials, that statute would be

26 unconstitutional as applied.

27

127. The 1366 Condition: 8 U.S.C. § 1366(1) and (3) do not impose any

28 obligations on States and local governments. However, if DOJ were permitted to

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1 interpret that statute to require participation in federal civil immigration enforcement

2 from States and local governments, that statute would be unconstitutional as applied.

3

128. Because these federal statutes are unconstitutional violations of the Tenth

4 Amendment, or would be unconstitutional to the extent they were construed and applied

5 as DOJ suggests, i.e., to impose obligations on State and local governments to participate

6 in federal civil immigration enforcement, DOJ cannot require jurisdictions to comply

7 with its interpretation of these laws as a condition of receiving any Byrne JAG funds or

8 any other federal funding.

9

COUNT FOUR

10 (2018 Byrne JAG: Violation of the Administrative Procedure Act - Arbitrary and Capricious Agency Action)

11 129. Los Angeles incorporates and re-alleges each and every allegation contained

12 above as if fully set forth herein.

13

130. Agency actions are unlawful and must be set aside if they are “arbitrary,

14 capricious, an abuse of discretion, or otherwise not in accordance with law.” 5 U.S.C.

15 § 706(2)(A).

16

131. DOJ’s decision to impose civil immigration-related conditions and

17 certifications in the FY 2018 Byrne JAG grant solicitation is arbitrary and capricious

18 because DOJ imposed those conditions and certifications without any reasoned basis,

19 provided no support for its linkage between participation by State and local law

20 enforcement officials in federal civil immigration enforcement and the local criminal

21 justice efforts that are the authorized purpose of the Byrne JAG grant, and appears to have

22 relied on clearly erroneous and debunked interpretations of existing studies.

23

24

25

26

27

28

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1

COUNT FIVE

2

(Juvenile Gang Prevention Grant: Violation of Separation of Powers / Ultra Vires Agency Action)

3

132. Los Angeles incorporates and re-alleges each and every allegation contained

4 above as if fully set forth herein.

5

133. Defendants’ imposition of immigration-related conditions, questionnaires,

6 and certifications on the 2018 Juvenile Gang Prevention Grant applicants violates

7 constitutional principles of separation of powers and exceeds DOJ’s lawful authority.

8

134. The Constitution confers the power of the Spending Clause on Congress, not

9 the Executive Branch. See U.S. Const. art. I, § 8, cl. 1. It is Congress, not an Executive

10 Branch agency, that has the constitutional authority to impose conditions on the receipt of

11 federal funds, and even that power is subject to limitations such as relatedness and clarity.

12 Defendants here are attempting to wield authority that is vested in Congress, not in DOJ.

13

135. The Juvenile Gang Prevention Grant is authorized under Part E of

14 Subchapter II of the Juvenile Justice Act. In passing that part of the Juvenile Justice Act,

15 Congress granted authority to OJJDP to make grants to units of local government “to

16 carry out projects for the development, testing, and demonstration of promising initiatives

17 and programs for the prevention, control, or reduction of juvenile delinquency.” 34

18 U.S.C. § 11171(a). Congress specified three specific purposes for OJJDP grants: to

19 “support State and local programs that prevent juvenile involvement in delinquent

20 behavior,” 34 U.S.C. § 11102(1); “assist State and local governments in promoting

21 public safety by encouraging accountability for acts of juvenile delinquency,” id. §

22 11102(2); and “assist State and local governments in addressing juvenile crime through

23 the provision of technical assistance, research, training, evaluation, and the dissemination

24 of information on effective programs for combating juvenile delinquency.” Id. §

25 11102(3). Congress did not include the term “immigration,” nor any variation of that

26 term in the enabling legislation for the Juvenile Gang Prevention Grant, and enforcing

27

28

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1 federal civil immigration laws is not stated or intimated as one of the purposes of the

2 Juvenile Gang Prevention Grant.

3

136. In the 2018 Consolidated Appropriations Act, Pub. L. No. 115-141, Mar. 23,

4 2018, 132 Stat. 348, 423, Congress provided “$27,500,000 for delinquency prevention, as

5 authorized by section 505 of the [Juvenile Justice] Act, of which, pursuant to sections 261

6 and 262 [34 U.S.C. §§ 11171 and 11172] thereof . . . (B) $4,000,000 shall be for gang

7 and youth violence education, prevention and intervention, and related activities.”

8 (emphasis added).

9

137. The programs for which Congress authorized funding under the Juvenile

10 Justice Act, including the Juvenile Gang Prevention Grant, do not include inducing State

11 and local support for federal investigations of civil immigration status. Yet, DOJ seeks to

12 require all applicants for the FY 2018 Juvenile Gang Prevention Grant to promise to

13 assist in civil immigration enforcement as a condition of receiving funding. Accordingly,

14 DOJ has expressly and unlawfully conditioned money that Congress appropriated to

15 advance local juvenile delinquency prevention efforts on federal civil immigration

16 enforcement, without statutory authorization to do so.

17

138. In authorizing OJJDP grants to State and local governments, Congress

18 specifically recognized that juvenile delinquency problems should be addressed through

19 prevention programs that “work with juveniles, their families, local public agencies, and

20 community based organizations[.]” Id. § 11101(a)(10)(A)(i). Congress reinforced the

21 importance of collaboration between local public agencies and the community when it

22 explicitly found that “[c]oordinated juvenile justice and delinquency prevention projects

23 that meet the needs of juveniles through the collaboration of the many local service

24 systems juveniles encounter can help prevent juveniles from becoming delinquent and

25 help delinquent youth return to a productive life.” Id. § 11101(a)(11) (emphasis added).

26 DOJ’s attempt to condition monies for programs that assist locally-driven juvenile

27 delinquency prevention efforts, such as the Juvenile Gang Prevention Grant program, on

28

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1 state and local participation in federal civil immigration enforcement, is contrary to the

2 text and purpose of the statute.

3

139. The Challenged Conditions are also inconsistent with Congress’s direction

4 that “[t]he Administrator shall ensure that, to the extent reasonable and practicable, such

5 grants are made to achieve an equitable distribution of such projects throughout the

6 United States.” 34 U.S.C. § 11171(a). Congress granted limited discretion to DOJ to

7 impose conditions unrelated to the purpose of the grant. By allocating grant funds only to

8 those jurisdictions willing to accede to the Challenged Conditions, DOJ is acting contrary

9 to the authority given to it under the statute.

10

140. The 1373 Condition: The Juvenile Gang Prevention Grant statute does not

11 authorize the imposition of immigration-related conditions. 8 U.S.C. § 1373 has no

12 relevance to federal grants or the local criminal justice subject matter of the Juvenile

13 Gang Prevention Grant. It is also not a valid federal law, because it violates the Tenth

14 Amendment. Accordingly, DOJ lacks authority to require Juvenile Gang Prevention

15 Grant applicants to certify compliance with 8 U.S.C. § 1373.

16

141. The 1644 Condition: The Juvenile Gang Prevention Grant statute does not

17 authorize the imposition of immigration-related conditions. 8 U.S.C. § 1644 has no

18 relevance to federal grants or the locally driven juvenile delinquency prevention effort

19 which is the subject matter of the Juvenile Gang Prevention Grant. Moreover, any

20 application of Section 1644 to impose a mandate on States and local governments would

21 violate the Tenth Amendment. Accordingly, DOJ lacks authority to require the Juvenile

22 Gang Prevention Grant Program applicant to certify compliance with 8 U.S.C. § 1644.

23

142. The Notice and Access Conditions: The Juvenile Gang Prevention Grant

24 statute does not authorize the imposition of immigration-related conditions. DOJ cannot

25 justify imposing the Notice and Access Conditions for the Juvenile Gang Prevention

26 Grant process by requiring applicants to certify that they do not “impede” federal

27 officials’ performance of their duties under 8 U.S.C. §§ 1226(a), (c), 1231(a), and

28 1357(a)(1). These provisions do not purport to impose any obligations on States and

44
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1 local governments. If these statutes were construed to impose requirements on States and

2 local governments, any such application would violate the Tenth Amendment. And even

3 if these laws could constitutionally impose obligations on States and local governments,

4 and did in fact do so, they do not concern federal grants or the juvenile delinquency

5 reduction and prevention subject matter of the Juvenile Gang Prevention Grant. For all

6 of these reasons, DOJ lacks authority to require Juvenile Gang Prevention Grant

7 applicants to certify compliance with 8 U.S.C. §§ 1226(a), (c), 1231(a), and 1357(a)(1).

8

143. The Harboring Condition: The Juvenile Gang Prevention Grant statute

9 does not authorize the imposition of immigration-related conditions. 8 U.S.C. § 1324(a)

10 does not apply to States and local governments. If this statute were construed to impose

11 requirements on States and local governments, any such application would violate the

12 Tenth Amendment. And even if this law could constitutionally impose obligations on

13 States and local governments, and did in fact do so, it does not concern federal grants or

14 the juvenile delinquency reduction and prevention subject matter of the Juvenile Gang

15 Prevention Grant. For all of these reasons, DOJ lacks authority to require Juvenile Gang

16 Prevention Grant applicants “not to publicly disclose federal law enforcement

17 information in an attempt to conceal, harbor, or shield certain individuals from detection,

18 including in violation of 8 U.S.C. § 1324(a)” or to certify that they will not “require or

19 authorize the public disclosure of federal law enforcement information in order to

20 conceal, harbor, or shield from detection fugitives from justice or aliens illegally in the

21 United States.”

22

144. The Questionnaire Condition: The Juvenile Gang Prevention Grant statute

23 does not authorize the imposition of immigration-related conditions. DOJ has not

24 identified any federal law requiring States and local governments to complete its

25 questionnaire concerning participation in federal civil immigration enforcement.

26 Accordingly, the Questionnaire Condition is unlawful.

27

145. The 1366 Condition: The Juvenile Gang Prevention Grant statute does not

28 authorize the imposition of immigration-related conditions. 8 U.S.C. § 1366(1) and (3)

45
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1 require the Attorney General to submit various reports to Congress. Those provisions do

2 not concern federal grants, and are not directed to States and local governments.

3

146. In sum, DOJ is attempting to exercise a power it does not have. Defendants’

4 attempt to condition federal funding of local juvenile delinquency prevention programs in

5 cities like Los Angeles on the willingness of the award grantee to engage in federal civil

6 immigration enforcement violates the separation of powers enshrined in our Constitution

7 and is ultra vires in violation of Congressional legislation authorizing the Juvenile Gang

8 Prevention Grant.

9

COUNT SIX

10

(Juvenile Gang Prevention Grant: Violation of the Spending Clause)

11

147. Los Angeles incorporates and re-alleges each and every allegation contained

12 above as if fully set forth herein.

13

148. Even if Congress could delegate the constitutional spending power to DOJ to

14 impose the Challenged Conditions (which it cannot), and even if it had done so (which it

15 has not), such power would be subject to constitutional restrictions that are not met here.

16 It is well established that the Spending Clause requires that conditions on providing

17 federal funds to States and local governments must, inter alia, be sufficiently germane to

18 the purpose of the federal funds. Otherwise, the “condition” amounts to impermissible

19 regulation and commandeering of States and local governments, in violation of the Tenth

20 Amendment. The Challenged Conditions fail both of these requirements.

21

149. Conditions placed on the use by States and localities of federal funds must

22 be stated unambiguously. “The legitimacy of Congress’ power to legislate under the

23 spending power thus rests on whether the State voluntarily and knowingly accepts” the

24 conditions, and there can be “no knowing acceptance if a State [or city] . . . is unable to

25 ascertain what is expected of it.” Pennhurst State Sch. & Hosp. v. Halderman, 451 U.S.

26 1, 17 (1981). It is Congress, not an agency, that must speak clearly in defining the type

27 of conditions at issue. But even if DOJ could satisfy this requirement by speaking with

28 the requisite clarity, it has not done so here. For example, it is not clear what state and

46
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1 local laws and policies that DOJ intends to address with the Harboring Condition. Nor

2 has DOJ clearly and unambiguously stated whether the version of the Notice Condition

3 included in its Juvenile Gang Prevention Grant solicitation would require States or

4 localities to detain individuals beyond their scheduled release date. These ambiguities do

5 not allow Los Angeles to ascertain exactly what is expected of it.

6

150. Conditions imposed on recipients of federal funding must “bear some

7 relationship to the purpose of the federal spending.” New York, 505 U.S. at 167. The

8 Challenged Conditions concern federal civil immigration enforcement, which is not

9 sufficiently related—or related at all—to the purpose of the Juvenile Gang Prevention

10 Grant Program created by Congress to assist State and local governments “to carry out

11 projects for the development, testing, and demonstration of promising initiatives and

12 programs for the prevention, control, or reduction of juvenile delinquency.” 34 U.S.C.

13 § 11171(a).

14

COUNT SEVEN

15

(Juvenile Gang Prevention Grant: Violation of Tenth Amendment and

Anticommandeering)

16

151. Los Angeles incorporates and re-alleges each and every allegation contained

17 above as if fully set forth herein.

18

152. The Tenth Amendment prohibits the federal government from requiring

19 States and municipalities “to govern according to Congress’ instructions.” New York,

20 505 U.S. at 162, or “commanding the States’ officers . . . to administer or enforce a

21 federal regulatory program.” Printz v. United States, 521 U.S. 898, 935 (1997). The

22 various federal statutes that DOJ attempts to use to justify the Challenged Conditions are

23 either unconstitutional in violation of the Tenth Amendment on their face, as applied to

24 State and local governments, or as DOJ interprets them to apply to State and local

25 governments.

26

153. The 1373 Condition: DOJ’s interpretation of 8 U.S.C. § 1373 to require

27 State and local governments to participate in federal civil immigration enforcement

28

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FIRST AMENDED COMPLAINT

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1 violates the Tenth Amendment making it unconstitutional on its face. Section 1373

2 purports to “unequivocally dictate[ ] what a state legislature may and may not do” by

3 prohibiting States and localities from restricting their employees from communicating

4 with the federal government about a person’s citizenship and immigration status. See

5 Murphy, 138 S. Ct. at 1478; Philadelphia, 309 F. Supp. 3d at 331; Chicago, 2018 WL

6 3608564, at *10.

7

154. The 1644 Condition: 8 U.S.C. § 1644 does not impose mandates solely on

8 State and local governments, but to the extent it imposes on States and local governments

9 mandates similar to those imposed by 8 U.S.C. § 1373, it is unconstitutional as applied

10 for the same reasons.

11

155. The Notice and Access Conditions: 8 U.S.C. §§ 1226(a), (c), 1231(a), and

12 1357(a)(1) do not purport to impose any obligations on States and local governments.

13 However, if DOJ were permitted to interpret those statutes to impose an obligation on

14 States and local governments to participate in federal civil immigration enforcement,

15 those statutes would be unconstitutional as applied.

16

156. The Harboring Condition: 8 U.S.C. § 1324 does not purport to impose

17 any obligations on States and local governments. However, if DOJ were permitted to

18 interpret that statute to apply to State and local officials, that statute would be

19 unconstitutional as applied.

20

157. The 1366 Condition: 8 U.S.C. § 1366(1) and (3) do not impose any

21 obligations on States and local governments. However, if DOJ were permitted to

22 interpret that statute to require participation in federal civil immigration enforcement

23 from States and local governments, that statute would be unconstitutional as applied.

24

158. Because these federal statutes are unconstitutional violations of the Tenth

25 Amendment, or would be unconstitutional to the extent they were construed and applied

26 as DOJ suggests, i.e., to impose obligations on State and local governments to participate

27 in federal civil immigration enforcement, DOJ cannot require jurisdictions to comply

28 with its interpretation of these laws as a condition of receiving any Juvenile Gang

48
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1 Prevention Grant funds or any other federal funding.

2

COUNT EIGHT

3 (Juvenile Gang Prevention Grant: Violation of the Administrative Procedure Act Arbitrary and Capricious Agency Action)
4 159. Los Angeles incorporates and re-alleges each and every allegation contained
5 above as if fully set forth herein.
6 160. Agency actions are unlawful and must be set aside if they are “arbitrary,
7 capricious, an abuse of discretion, or otherwise not in accordance with law.” 5 U.S.C.
8 § 706(2)(A).
9 161. DOJ’s decision to impose civil immigration-related conditions and
10 certifications in the Juvenile Gang Prevention Grant solicitation is arbitrary and
11 capricious because DOJ imposed those conditions and certifications without any reasoned
12 basis, provided no support for its linkage between participation by State and local law
13 enforcement officials in federal civil immigration enforcement and the local juvenile
14 delinquency prevention efforts that are the authorized purpose of the Juvenile Gang
15 Prevention Grant, and appears to have relied on clearly erroneous and debunked
16 interpretations of existing studies.
17

18

PRAYER FOR RELIEF

19

WHEREFORE, Plaintiff City of Los Angeles respectfully requests that this Court

20 enter judgment in its favor, and grant the following relief:

21

1. Declare that the Challenged Conditions in the FY 2018 Byrne JAG

22 solicitation are unconstitutional or otherwise unlawful;

23

2. Set aside the Challenged Conditions on FY 2018 Byrne JAG funds, and

24 permanently enjoin Defendants from using the Challenged Conditions or substantively

25 similar conditions in awarding Byrne JAG funding and from withholding or delaying

26 Byrne JAG funding based on the Challenged Conditions;

27

3. Declare that the Challenged Conditions in the FY 2018 Juvenile Gang

28 Prevention Grant solicitation are unconstitutional or otherwise unlawful;

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1

4. Set aside the Challenged Conditions on FY 2018 Juvenile Gang Prevention

2 Grant funds, and permanently enjoin Defendants from using the Challenged Conditions

3 or substantively similar conditions in awarding Juvenile Gang Prevention Grant funding

4 and from withholding or delaying Juvenile Gang Prevention Grant funding based on the

5 Challenged Conditions;

6

5. Declare that 8 U.S.C. § 1373 is unconstitutional as applied to State and local

7 governments;

8

6. Declare that 8 U.S.C. § 1644 is unconstitutional as applied to State and local

9 governments;

10

7. Declare that 8 U.S.C. §§ 1226(a), (c), 1231(a), 1324, 1357(a)(1), and

11 1366(1), (3) do not require State and local governments to participate in federal civil

12 immigration enforcement, and would be unconstitutional as applied to the extent that they

13 did;

14

8. Issue a writ of mandamus compelling Defendants to immediately disburse

15 Los Angeles’s FY 2018 Byrne JAG award, without further delay.;

16

9. Award Plaintiff City of Los Angeles reasonable fees and costs; and,

17

10. Grant any further relief that this Court may deem fit and proper.

18

19

20

21

22

23

24

25

26

27

28

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1

JS-6

2

3

4

5

6

7

8

9

UNITED STATES DISTRICT COURT

10

CENTRAL DISTRICT OF CALIFORNIA

11

12 CITY OF LOS ANGELES,

) CASE NO. CV 18-7347-R )

13

Plaintiff,

) ORDER GRANTING PLAINTIFF’S

) MOTION FOR PARTIAL SUMMARY

14

v.

) JUDGMENT AND DENYING

15 JEFFERSON B. SESSIONS III; et al.,

) DEFENDANTS’ MOTION FOR PARTIAL ) DISMISSAL OR PARTIAL SUMMARY

16

Defendants.

) JUDGMENT )

17

)

)

18

Before the Court is Plaintiff’s Motion for Partial Summary Judgment as to Counts One,

19 Two, Three, and Four of Plaintiff’s Complaint, filed on October 5, 2018, and Defendants’ Motion

20 for Partial Dismissal or Partial Summary Judgment, filed on November 13, 2018. (Dkts. 41, 49).

21 Having been briefed by both parties, this Court took the matters under submission on January 2,

22 2019.

23

The two federal grants at issue here are (1) the Edward Byrne Memorial Justice Assistance

24 Grant (“Byrne JAG”) Program, and (2) a grant authorized by the Juvenile Justice and Delinquency

25 Prevention Act of 1974 (“Juvenile Justice Act”), also referred to as the “Gang Suppression Grant

26 Program.” The Byrne JAG grant supports state and local law enforcement efforts by providing

27 additional funds for personnel, equipment, training, and other criminal justice needs. 34 U.S.C. §

28 10152. The Byrne JAG grant is a formula grant, meaning the funds are awarded according to a

Case 2:18-cv-07347-R-JC Document 62 Filed 02/15/19 Page 2 of 10 Page ID #:2758

1 formula provided by statute based on the state’s population and rate of violent crime. 34 U.S.C. §

2 10156. Plaintiff City of Los Angeles (“Los Angeles”) has been a recipient of the Byrne JAG grant

3 every year since 1997, except 2017 and 2018, and each year has received more than $1 million in

4 funding. DOJ has imposed five conditions on both of these fiscal year 2018 grants. The first two

5 conditions, referred to as the “Notice” and “Access” Conditions, are substantively identical to

6 those previously enjoined by this Court in the case concerning the fiscal year 2017 Byrne JAG

7 awards. These two conditions provide that the Department will only provide Byrne JAG grants to

8 cities and states that comply with federal law, allow federal immigration access to detention

9 facilities (“Access Condition”), and provide 40 hours’ notice before they release an illegal alien

10 wanted by federal authorities (“Notice Condition”). Los Angeles has not changed its policies and

11 operations, and as a result has not received Byrne JAG funding for the 2018 fiscal year. The third

12 Condition, referred to as the “1373 and 1644 Condition” requires recipients to certify compliance

13 with 8 U.S.C. §§ 1373 and 1644. The final two conditions require the local governments that

14 receive the above mentioned federal grants to (1) certify “not to publicly disclose federal law

15 enforcement information in an attempt to conceal, harbor, or shield certain individuals from

16 detection, whether or not in violation of 8 U.S.C. § 1324(a) (the “Harboring Condition”); and (2)

17 answer a DOJ questionnaire regarding the local governmental entity’s policies on communication

18 with federal immigration authorities and certify that the entity will not impede the Attorney

19 General’s reporting requirements under 8 U.S.C. § 1366 (“Questionnaire and 1366 Condition”).

20 Combined, this Court will refer to all conditions above as “the Conditions.” Now before this

21 Court, Plaintiff moves for Partial Summary Judgment as to Counts One, Two, Three, and Four of

22 its Complaint, while Defendant moves for Partial Dismissal or Partial Summary Judgment.

23

Summary judgment is appropriate where there is no genuine issue of material fact and the

24 moving party is entitled to judgment as a matter of law. Fed. R. Civ. P. 56(a); Celotex Corp. v.

25 Catrett, 477 U.S. 317, 330 (1986). Partial summary judgment may be granted on particular

26 claims. Fed. R. Civ. P. 56(a).

27 Justiciability

28

Defendants argue in their motion that Los Angeles lacks standing to challenge the

2

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1 Conditions that DOJ has imposed on the 2018 Gang Suppression Grant. Article III of the

2 Constitution allows federal courts to adjudicate only live cases and controversies. Under this

3 requirement, a plaintiff must have “standing” to sue for relief. The elements of standing are (1)

4 injury in fact, (2) causation, and (3) redressability. Lujan v. Defenders of Wildlife, 504 U.S. 555,

5 560-61 (1992). To establish standing to seek equitable relief, the plaintiff must also show a

6 likelihood of future injury. City of L.A. v. Lyons, 461 U.S. 95, 105 (1983). “The existence of

7 standing turns on the facts as they existed at the time the plaintiff filed the complaint.” Skaff v.

8 Meridien N. Am. Beverly Hills, LLC, 506 F.3d 832, 838 (9th Cir. 2007).

9

A grant competitor may suffer “competitive injury” for purposes of standing. “[W]hen

10 challenged agency conduct allegedly renders a [competitor] unable to fairly compete for some

11 benefit, that [competitor] has suffered a sufficient ‘injury in fact’ and has standing.” Preston v.

12 Heckler, 734 F.2d 1359, 1365 (9th Cir. 1984); see also Int’l Bhd. of Teamsters v. U.S. Dep’t of

13 Transp., 861 F.3d 944, 950 (9th Cir. 2017) (“[E]conomic actors suffer an injury in fact when

14 agencies lift regulatory restrictions on their competitors or otherwise allow increased competition

15 against them…. This doctrine of ‘competitor standing’ is grounded in the basic law of economics

16 that increased competition leads to actual injury.”). The grant competitor is not required to show

17 that it would have received the grant but for the disadvantage it faced. Rather, “the ‘injury in fact’

18 is the inability to compete on an equal footing in the bidding process….” Ne. Fla. Chapter of

19 Associated Gen. Contractors of Am. v. Jacksonville, 508 U.S. 656, 666 (1993).

20

DOJ challenges Los Angeles’ standing on the basis of injury-in-fact, alleging that because

21 the Gang Suppression Grant is a discretionary program with limited funds, it is unknown whether

22 Los Angeles will be chosen to receive an award, and thus, its injury is speculative. However, this

23 Court is not persuaded by such an argument. In order to have standing, Los Angeles need only

24 seek and be qualified to receive the grant funds at issue. See DKT Mem’l Fund, Ltd. v. Agency for

25 Int’l Dev., 810 F.2d 1236, 1238 (D.C. Cir. 1987). Los Angeles promptly applied for funding and

26 alleged that it will use the funds to implement a long-term project falling within the scope of the

27 grant’s purpose. Los Angeles has demonstrated that it has sought funds and is qualified to receive

28 such grant funds. It need not also demonstrate that it is certain to receive funding. Thus, Los

3

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1 Angeles has standing to bring suit based on competitive injury.

2 Count One (Ultra Vires Agency Action and Violation of Separation of Powers)

3

The City of Los Angeles moves for summary judgment on Count One claiming that the

4 Conditions imposed are ultra vires agency action and a violation of separation of powers.

5

An agency “has no power to act…unless and until Congress confers power upon

6 it.” La. Pub. Serv. Comm’n v. FCC, 476 U.S. 355, 374 (1986). When agencies “act improperly,

7 no less than when they act beyond their jurisdiction, what they do is ultra vires.” City of Arlington

8 v. FCC, 569 U.S. 290, 297 (2013). While “Congress may attach conditions on the receipt of

9 federal funds,” a federal agency may not do so without Congress’ permission. South Dakota v.

10 Dole, 483 U.S. 203, 206 (1987); see also City of Chicago v. Sessions, 264 F. Supp. 3d 933, 940

11 (N.D. Ill. 2017) (“Whether the new conditions on the…grant are proper depends on whether

12 Congress conferred authority on the Attorney General to impose them.”).

13

“If Congress intends to alter the usual constitutional balance between the States and the

14 Federal Government, it must make its intention to do so unmistakably clear in the language of the

15 statute.” Gregory v. Ashcroft, 501 U.S. 452, 460 (1991). Although Gregory did not address this

16 constitutional balance in the grant context, the Court explained that this clear rule “applie[s] in

17 other contexts,” including any “traditionally sensitive areas, such as legislation affecting the

18 federal balance.” Id. at 461. The Fourth Circuit, citing Supreme Court precedent, extended the

19 clear statement rule specifically to federal grants. Com. of Va., Dep’t of Educ. v. Riley, 106 F.3d

20 559, 566 (4th Cir. 1997) (en banc). The Riley Court emphasized the importance of such a rule

21 where the grant condition required the surrender of a critical power reserved to the states by the

22 Tenth Amendment. Id. The Supreme Court has emphasized that the police power is one such

23 critical state function. See, e.g., Gonzales v. Oregon, 546 U.S. 243, 270 (2006) (states have “great

24 latitude under their police powers to legislate as to the protection of the lives, limbs, health,

25 comfort, and quiet of all persons”).

26

In its September 13, 2018 Order, this Court held that “[t]he language of the [Byrne JAG]

27 statute gives no indication that DOJ is authorized to add civil immigration conditions.” This Court

28 further held that 34 U.S.C. § 10102(a)(6), the statutory authority DOJ identified in support of its

4

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1 immigration conditions, did not in fact authorize such conditions. As for the Conditions imposed

2 on the FY 2018 grants, DOJ has made minor changes from the 2017 Notice and Access

3 Conditions, and added new immigration-related conditions with the purpose of forcing States and

4 localities to participate in federal civil immigration enforcement. While minor changes were

5 made, the substance and effect of the conditions remains the same, and DOJ’s attempt to add

6 immigration-based conditions to the Byrne JAG Program is inconsistent with the text, structure,

7 and purpose of the statute. In addition, this Court rejects Defendants’ contention that the

8 immigration conditions are required by federal immigration statutes.

9

The Notice and Access Conditions

10

DOJ is imposing on the FY 2018 grants substantively the same Notice and Access

11 Conditions that this Court enjoined for FY 2017. The Notice and Access Conditions require local

12 governments’ law enforcement and detention facilities to adjust their resources and practices (1) to

13 provide 48 hours’ notice to federal immigration authorities, upon request from DHS, before

14 releasing certain aliens, and (2) to allow federal immigration officials access to their local

15 detention facilities to interview certain detainees. Although this Court and multiple other courts

16 have enjoined these conditions, DOJ now attempts to argue that an assortment of statutory

17 provisions require States and local governments to provide notice and access. The statutory

18 provisions that Defendants rely on are 8 U.S.C. § 1226(a), (c) and 8 U.S.C. § 1231(a). However,

19 Section 1226(a) and (c) discuss the authority of the Attorney General and provide that he may

20 issue warrants for, and take into custody, certain aliens. See 8 U.S.C. § 1226(a), (c). Section

21 1232(a) discusses the authority of the Attorney General to remove and detain certain aliens. None

22 of these statutory provisions are directed to States or local governments. Defendants cite to

23 additional statutory provisions in an attempt to bolster their position that they have been granted

24 authority by statute to impose these conditions, but this Court finds such attempts unavailing.

25 Neither the Byrne JAG nor any other statute grants the Attorney General “the authority to impose

26 conditions that require states or local governments to assist in immigration enforcement, nor to

27 deny funds to states or local governments for the failure to comply with those conditions.” City of

28 Chicago v. Sessions, 888 F.3d 272, 284 (7th Cir. 2018). This Court agrees with the position of the

5

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1 Seventh Circuit that “[t]he Attorney General in this case used the sword of federal funding to

2 conscript state and local authorities to aid in federal civil immigration enforcement. But the power

3 of the purse rests with Congress, which authorized the federal funds at issue and did not impose

4 any immigration enforcement conditions on the receipt of such funds.” Id. at 277.

5

The challenged Conditions upset the constitutional balance between state and federal

6 power by requiring state and local law enforcement to partner with federal authorities. These

7 conditions infringe upon the state police power. They also upset the constitutional balance by

8 requiring state and local participation in a historically federal function—immigration enforcement.

9 See, e.g., Arizona v. United States, 567 U.S. 387, 394 (2012) (“The Government of the United

10 States has broad, undoubted power over the subject of immigration and the status of aliens.”).

11 Thus, the dispositive question before this Court is whether Congress has “unmistakably”

12 authorized the Attorney General to impose the challenged Conditions.

13

Accordingly, Defendants’ imposition of the Notice and Access Condition is ultra vires as a

14 matter of law and a violation of separation of powers. As a result, Los Angeles’s Motion for

15 Summary Judgment is GRANTED on Count One as to the Notice and Access Conditions.

16

The 1373 and 1644 Condition

17

As provided by Section 1373(a), federal, state, and local governments and officials “may

18 not prohibit, or in any way restrict, any government entity or official from sending to, or receiving

19 from” federal immigration officials “information regarding the citizenship or immigration status,

20 lawful or unlawful, of any individual.” 8 U.S.C. § 1373(a). Section 1373(b) provides that “no

21 person or agency may prohibit, or in any way restrict,” a federal, state, or local government from

22 “[m]aintaining such information” or “[e]xchanging such information with any Federal, State, or

23 local government entity.” Section 1644 provides that “no State or local government entity may be

24 prohibited, or in any way restricted, from sending to or receiving from the Immigration and

25 Naturalization Service information regarding the immigration status, lawful or unlawful, of an

26 alien in the United States. 8 U.S.C. § 1644.

27

As Los Angeles argues and this Court agrees, Section 1373 and 1644 are not applicable

28 Federal laws within the meaning of Section 10153(a)(5)(D) such that certification of compliance

6

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1 with them can be required by States and local governments as a condition for Byrne JAG funds.

2 Neither statute concerns federal grants, and they are unconstitutional as applied to States and local

3 governments under the Tenth Amendment’s anti-commandeering principle. Moreover, this Court

4 stands in agreement with three other courts that have already analyzed this issue.1 City of

5 Philadelphia v. Sessions, 309 F. Supp. 3d 289, 329 (E.D. Pa. 2018) (Section 1373 “regulate[s]

6 state and local governmental entities and officials, which is fatal to [its] constitutionality under the

7 Tenth Amendment.”); City & Cty. of San Francisco v. Sessions, No. 3:17-cv-04642, Dkt. 145, 30

8 (N.D. Cal. Oct. 5, 2018) (Section 1373 “require[s] local policymakers to stand aside and allow the

9 federal government to conscript the time and cooperation of local employees.”) (quoting City of

10 Chicago v. Sessions, 2018 WL 3608564, *11 (N.D. Ill. Jul. 27, 2018).). These statutes violate the

11 anticommandeering principle of the Tenth Amendment, and the fact that Section 1373 prohibits

12 States and local governments from acting rather than requiring them to act does not change the

13 constitutional analysis, because “[t]he basic principles―that Congress cannot issue direct orders

14 to state legislatures―applies in either event.” See Murphy v. NCAA, 138 S. Ct. 1461, 1478

15 (2018).

16

Accordingly, Defendants’ imposition of the 1373 and 1644 Condition is ultra vires as a

17 matter of law and a violation of separation of powers. As a result, Los Angeles’s Motion for

18 Summary Judgment is GRANTED on Count One as to the 1373 and 1644 Condition.

19

The Harboring Condition

20

8 U.S.C. § 1324(a), referred to as the Harboring Condition, is what DOJ contends is an

21 applicable Federal law under Section 10153(a)(5)(D) so that DOJ can, as a condition on receiving

22 Byrne JAG grants, require that States and local governments not publicly disclose federal law

23 enforcement information in an attempt to conceal, harbor, or shield certain individuals from

24 detection, including in violation of 8 U.S.C § 1324(a). However, Section 1324(a) is not applicable

25 to federal grants. Further, the provisions in Section 1324(a) are not directed at States or local

26 governments, but instead apply to any person which the Immigration and Nationality Act (“INA”)

27 defines as an “individual or an organization.” 8 U.S.C. § 1101(b)(3). And an organization

28
1 The same analysis applies to Section 1644 because it also prohibits States and localities from enacting laws
governing the duties of state and local law enforcement off7icers.

Case 2:18-cv-07347-R-JC Document 62 Filed 02/15/19 Page 8 of 10 Page ID #:2764

1 includes corporate entities, not States or local governments. See id. § 1101(a)(28). In addition,

2 regarding the anticommandeering principle discussed above, an interpretation of Section 1324(a)

3 that would apply to States and local governments and subject them to criminal punishment would

4 be a violation of the Tenth Amendment. Section 10153(a)(5)(D) does not authorize DOJ to

5 require State and local governments to certify that they will not publicly disclose “federal law

6 enforcement information” in violation of Section 1324(a).

7

Accordingly, Defendants’ imposition of the Harboring Condition (8 U.S.C. § 1324(a)) is

8 ultra vires as a matter of law and a violation of separation of powers. As a result, Los Angeles’s

9 Motion for Summary Judgment is GRANTED on Count One as to the Harboring Condition.

10

The Questionnaire and 1366 Conditions

11

The Questionnaire Condition requires States and local governments to answer various

12 questions about the entity’s communication policies with federal immigration authorities. The

13 Condition requires jurisdictions to provide information about their laws, policies, or practices

14 related to whether, when, or how employees may communicate with DHS or ICE and to explain

15 how those laws, policies, and practices comply with Section 1373. However, Congress has

16 limited the information that the Attorney General could require of States and local governments to

17 programmatic and financial information as provided in Section 10153(a)(4). Further, DOJ

18 requires States and local governments to certify that they will not impede the Attorney General’s

19 authority under 8 U.S.C. § 1366(1) and (3). However, those provisions do not concern federal

20 grants, and are not directed to States and local governments.

21

Accordingly, Defendants’ imposition of the Questionnaire and 1366 Conditions is ultra

22 vires as a matter of law and a violation of separation of powers. As a result, Los Angeles’s

23 Motion for Summary Judgment is GRANTED on Count One as to the Questionnaire and 1366

24 Conditions.

25

Granting Los Angeles summary judgment on Count I affects the balance of Los Angeles’s

26 claims. It renders the remaining counts―Counts II, III, and IV―moot.

27 Injunctive Relief: Permanent Injunction

28

Los Angeles seeks to prospectively enjoin Defendants from imposing the Conditions

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1 discussed above. To obtain a permanent injunction, the moving party must show (1) irreparable

2 injury, (2) that monetary damages are inadequate, (3) that the balance of hardships weighs in its

3 favor, and (4) that an injunction serves the public. Monsanto Co. v. Geertson Seed Farms, 561

4 U.S. 139, 156-57 (2010).

5

First, Los Angeles’s harm is irreparable and cannot be compensated by monetary damages.

6 Los Angeles will suffer irreparable harm because it will be barred from receiving a funding

7 opportunity which it has been, and otherwise would be, entitled to based on Congress’ statutory

8 formula. Further, Los Angeles will suffer irreparable competitive harm if Defendants are not

9 enjoined from imposing the Conditions in future cycles. Int’l Franchise Ass’n, Inc. v. City of

10 Seattle, 803 F.3d 389, 411 (9th Cir. 2015) (“A rule putting plaintiffs at a competitive disadvantage

11 constitutes irreparable harm.”). Second, monetary damages cannot ensure that Los Angeles will

12 compete on a level playing field in future grant cycles. Third, Los Angeles has a strong interest in

13 competing fairly for federal resources. Although Defendants have an interest in determining

14 allocation of federal funds, they have no legitimate interest in distributing these funds

15 unconstitutionally. Finally, it is “always in the public interest” to issue an injunction in order to

16 prevent the violation of constitutional rights. Melendres v. Arpaio, 695 F.3d 990, 1002 (9th Cir.

17 2012). Therefore, a permanent injunction is appropriate.

18

A district court may issue a nationwide injunction only where “necessary to provide

19 complete relief to the plaintiff[].” See Califano v. Yamasaki, 442 U.S. 682, 702 (1979); see also

20 Easyriders Freedom F.I.G.H.T. v. Hannigan, 92 F.3d 1486, 1501-02 (9th Cir. 1996) (“[A]n

21 injunction is not necessarily made overbroad by extending benefit or protection to persons other

22 than prevailing parties in the lawsuit—even if it is not a class action—if such breadth is necessary

23 to give prevailing parties the relief to which they are entitled.”). This Court cannot reasonably

24 provide complete relief to Los Angeles without enjoining Defendants from imposing the

25 Conditions as to all competitors. An injunction that bars Defendants from applying the Conditions

26 only as to Los Angeles does little to ensure an even playing field. Gregory v. Litton Sys., Inc., 472

27 F.2d 631, 633-34 (9th Cir. 1972) (“[I]njunctive relief [may] be necessary to give a plaintiff or a

28 group of plaintiffs the relief to which they are entitled. Such relief, of course, may incidentally

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1 benefit many persons not before the court.”). Thus, this Court finds a program-wide permanent

2 injunction appropriate.

3

IT IS HEREBY ORDERED that Plaintiff’s Motion for Summary Judgment as to Count

4 One is GRANTED. (Dkt. 41).

5

IT IS HEREBY FURTHER ORDERED that the remaining claims are moot.

6

IT IS HEREBY FURTHER ORDERED that Defendants’ Motion for Partial Dismissal

7 or Partial Summary Judgment is DENIED. (Dkt. 49).

8

IT IS HEREBY FURTHER ORDERED that Defendants are permanently enjoined from

9 imposing the Conditions on FY 2018 Byrne JAG awards and Gang Suppression Grant Program.

10 Dated: February 15, 2019.

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___________________________________

15

MANUEL L. REAL

UNITED STATES DISTRICT JUDGE 16

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