SAN FRANCISCO (CN) — California urged a federal judge Wednesday to block the U.S. government from cutting off its access to criminal-justice grants in retaliation for its becoming a “sanctuary state.”
Gov. Jerry Brown signed a package of Sanctuary State bills in October called the Values Act, establishing safe zones around schools, courts and hospitals, and limiting state and local law enforcement cooperation with federal immigration authorities.
That put California in the crosshairs of a new Department of Justice policy aimed at making "sanctuary jurisdictions" ineligible for two criminal justice grants: the Edward Byrne Memorial Justice Assistance Grant (JAG) program and Community Oriented Policing Services (COPS) grants.
During a hearing Wednesday, California Department of Justice attorney Lee Sherman claimed the U.S. Department of Justice violated the exclusive spending powers of Congress by placing new conditions on grant funds unrelated to the purpose of the grants.
“Congress intended for this to increase flexibility for local jurisdictions to produce innovative solutions to criminal justice issues,” Sherman said of the grants. “That is unrelated to immigration enforcement.”
Attorney General Jeff Sessions announced in July that states and local governments would no longer qualify for certain grants unless they give immigration authorities access to local jails and give 48 hours notice before releasing undocumented immigrants from jail.
Federal judges in Chicago and Philadelphia then issued injunctions barring the Justice Department from cutting off grant funds to those sanctuary jurisdictions.
The Chicago ruling resulted in a nationwide injunction. The Philadelphia ruling applied only to Philadelphia's grant funding.
In San Francisco on Wednesday, U.S. District Judge William Orrick III appeared unpersuaded that California would suffer irreparable harm without an injunction, or that it would prevail on its constitutional claims.
With the JAG grants already on hold at the Seventh Circuit in the Chicago injunction, Orrick said the state has only $1 million in COPS grants at stake, an infinitesimal sum compared to the state's $125 billion budget.
“What's the urgency for the state right now?” Orrick asked.
The judge’s skepticism stood in stark contrast to the position he took in a previous legal challenge against an executive order that sought to withhold a broader swath of funding from sanctuary jurisdictions. Orrick issued a permanent injunction against that executive order in November.
The Department of Justice says the new grant conditions are to ensure that cities and states comply with a specific federal immigration law. Despite differing interpretations of that law, Orrick said, requiring compliance with the statute may not be a condition completely unrelated to law enforcement.
To tackle the question, Orrick cited U.S. District Judge Michael Baylson's Nov. 15 ruling in Philadelphia v. Sessions, which held that “criminal law is integral to immigration law,” but “immigration law has nothing to do with the enforcement of local criminal laws.”
“If criminal law is integral to immigration law, why wouldn’t it at least be an applicable federal law?” Orrick asked.
Sherman replied that immigration and criminal law enforcement are completely separate subjects.
“Immigration enforcement is civil in nature, and these grants are for criminal justice programs,” he said.
California says it stands to lose $31 million in funding if the federal government finds its laws violate Section 1373 of Title 8, which forbids restricting government employees from sharing a person’s immigration status with immigration authorities.
The Department of Justice claims that law also applies to sharing jail release dates and addresses.
“Immigration status is related to the release date,” Acting Assistant Attorney General Chad Readler said in court Wednesday. “Individuals aren't deportable until released from prison.”
Readler said that addresses, too, are included in that category.
“The address, that allows ICE to do its job if the individual has been released,” Readler said. “The only way they can find them is their address.”
But Sherman said that in reading the plain text of the law, there is no way to conclude that immigration status includes jail release dates and addresses. He said U.S. Magistrate Judge Joseph Spero reached the same conclusion in January when he dismissed claims seeking to hold San Francisco liable for the death of Kate Steinle.
Steinle was killed by a bullet from a gun held by an undocumented immigrant who was released from jail and not held for deportation as requested. Spero concluded the city had no obligation under federal law to hold an immigrant after the release date.
California has passed three laws — the Values Act, TRUST Act, and TRUTH Act — which limit cooperation by state and local law enforcement with federal immigration authorities.
Readler said the case is unripe for an injunction because the Department of Justice is still clarifying its position on whether the state’s Values Act violates federal law. He said the government has taken no stance on the legality of the state’s other sanctuary policies.
Orrick asked whether it might be premature for him to issue a ruling before the federal government finalizes its position on California's compliance with federal law and eligibility for the grants.
“One of the things I'm struggling with now is how sharply defined the issues are now and whether they're going to be shifting over time,” Orrick said. “I don't want to do an advisory opinion. I want to say something that will be consistent over time. That's one of the things I'm worried about.”
After an hour-long hearing, Orrick took the arguments under advisement.
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