Judge Declines to Force Feds to Give Grant Money to California

SAN FRANCISCO (CN) - A federal judge on Friday declined to force the Trump administration to award California $1.5 million in public safety funding the state says is being withheld over its refusal to help federal authorities deport undocumented immigrants.

In a decision issued late Friday, U.S. District Judge William Orrick III said he understands why California believes the administration is withholding the money to get around his Nov. 20 amended injunction permanently barring the U.S. Department of Justice from withholding policing grants based on the state's refusal to help enforce immigration laws.

But he said because the injunction involves a separate grant program, and because little evidence links California's immigration policies with the grant now under dispute, he was "skeptical" about ruling in California’s favor.

"I see this as distinct," Orrick told the state’s lawyers at a morning hearing Friday in San Francisco. "It's certainly a distinct grant, a distinct program, and there are questions about both timing and then the relationship and the lack of evidence. So all of those things I'm concerned about."

In a motion filed in November, the state claimed the Justice Department is violating Orrick's injunction by withholding $1.5 million in Project Safe Neighborhood (PSN) grants, which promote coordination between federal, state and local authorities to enforce federal firearms laws and reduce gun violence, including gun violence in schools.

To support its argument, California pointed to a Nov. 22 email in which a Justice Department lawyer told the state it was withholding PSN funding because "recent events have created doubt as to California’s willingness and ability to work in full partnership with federal law enforcement officials."

On Friday, the parties did not directly discuss the "recent events" referenced in the Justice Department's Nov. 22 email, and lawyers with both the department and the state declined to comment on them after the hearing.

But Justice Department attorney August Flentje said during the hearing that the department does plan to award PSN funding to California. He explained it hasn't yet done so because it was still deciding whether to give the funds directly to California or to a nonprofit fiscal agent for disbursement to the state's judicial districts.

"I can assure the court in reaching that decision, there will be no reliance on 1373, per this court's order," Flentje told the judge.

Section 1373 of Title 8 of the U.S. Code of Laws directs local governments not to bar employees from sharing a person's immigration status with federal agents. Orrick in October struck down the statute as unconstitutional and blocked the Trump administration from conditioning California's policing grants on it.

"We want that kind of cooperation described in 1373, but we're not going to apply that law," Flentje said.

Orrick appeared to accept this argument. He asked California Deputy Attorney General Lee Sherman why the state was opposed to the appointment of a nonprofit fiscal sponsor.

"I understand why the state would be concerned, but the purpose of the grant would seem to be fulfilled, and the people of the state of California would be given the benefits of the funding," Orrick said.

Sherman replied the appointment of a nonprofit sponsor "is news to California."

"In emails [the Justice Department] didn't say a fiscal sponsor would be chosen, just that California was not getting funds," Sherman said. "This raises the concern that they're deviating from the PSN funding process.”

He added, "To now post-hoc try to choose a different fiscal agent...seems to be an end run both around the court's judgment and around the solicitation" for funding.

But Flentje told Orrick that, contrary to California's assertion about its entitlement to PSN funding, these grants are awarded competitively – not every jurisdiction gets one. Flentje then referenced AB 90, a California law enacted in 2017 prohibiting the sharing of the state's gang database with federal authorities.

AB 90 "is highly relevant to what PSN is all about," Flentje said.

In its motion, California argues this basis for denying PSN funding is false because the state has cooperated with federal authorities, including participating in a joint operation on Aug. 31 in which 20 MS-13 gang members were arrested.

At the conclusion of Friday's hearing, Orrick said California may need to file a separate lawsuit to challenge the PSN funding. He advised Lee, however, to "think pretty carefully about that" if the funds are disbursed to a nonprofit, before similarly cautioning Flentje.

"I do see, Mr. Flentje, the connection the state has inferred with respect to what the department might be thinking about and the litigation that has gone on before, so I suspect if the state did file an action, it would be related to the cases I've seen already," Orrick said. "With that, I think I'll wish you all a very happy holiday."

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