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The U.S. Supreme Court is the quickest path to a national ruling that frees up $250 million and counting in Byrne JAG funds—possibly as soon as June 2019.
State and local governments might not receive their share of more than $250 million in law enforcement grants until the U.S. Department of Justice’s authority to withhold awards from “sanctuary cities” is resolved in federal court—possibly June 2019 at the earliest.
That’s assuming Chicago’s lawsuit against DOJ, the farthest along, sees an appeal that is taken up this term by the U.S. Supreme Court, which only looks at 2 percent of cases annually.
Otherwise circuit courts could be left dealing with the sanctuary city issue for years, with DOJ having ceased distribution of 2017 Byrne Memorial Justice Assistance Grants, typically doled out in October and spent fighting everything from gun crime to gang violence.
“There are potentially thousands of local governments that aren’t receiving their funding that DOJ presumably doesn’t have a problem with their [8 U.S.C.] 1373 compliance,” Amanda Kellar, International Municipal Lawyers Association associate counsel, told Route Fifty by phone.
Only 23 jurisdictions made DOJ’s list of those suspected of “unlawfully restricting information sharing by its law enforcement officers with federal immigration authorities.” One of them, West Palm Beach, Florida, sued the department for a declaratory ruling on its “welcoming city” resolution and settled the case on March 27, but no Byrne JAG funds have followed.
Pending litigation and the nationwide injunction in the Chicago case have delayed distribution, a department spokesman told Route Fifty in an email.
Kellar said nothing in the injunction prevents release of the funds, rather District Court Judge Harry Leinenweber issued one to stop the department from placing compliance conditions on the grants that likely violated the Constitution and exceeded agency authority under the statute.
In DOJ’s motion for a stay in the Chicago case, now before the Seventh U.S. Circuit Court of Appeals, the federal government argues that without one “the Department of Justice will be faced with the choice of delaying awards, to the detriment of states and localities across the country, or else foregoing grant conditions intended to guarantee that the incarceration of aliens by states and localities does not impede the federal government’s efforts to enforce the immigration laws.”
West Palm Beach Mayor Jeri Muoio told fellow mayors and police chiefs Tuesday at a public safety meeting in Washington, D.C. that the city agreed, in its settlement with federal government, to email employees reiterating they obey state and federal immigration laws but that it wasn’t their job to check immigration statuses. But she saw a DOJ statement that West Palm Beach settled because it was going to lose the court case, despite the city thinking “we were on very strong grounds.”
“We felt like the Department of Justice was lying and misrepresenting our agreement,” Muoio said. “So those are the kinds of things that really don’t help those of us who are working day to day in the trenches.”
The department declined to comment.
Further exacerbating the situation is the fact Congress budgeted $415.5 million in Byrne JAG funds in 2018, a $19.5 million increase, which is now in limbo.
The $1.6 million Philadelphia expected in Byrne JAG funds represents about 10 percent of its non-fixed expenses for things like the lifesaving medication, Narcan, used as emergency treatment for opioid overdoses, Kellar said. Like Chicago, the city sued the federal government for withholding its award and won in district court, but the agency’s appeal is currently before the Third Circuit.
Litigation between San Francisco’s city government and DOJ and the state of California and the department remain in district court for now.
“When they want to threaten us in a way that we believe is unconstitutional, the cities will protect their interests and, of course, I think the federal courts are siding with us at this point,” New Orleans Mayor Mitch Landrieu said responding to a question from Route Fifty during a Tuesday press conference. “It’s an unnecessary fight.”
Landrieu, who’s also U.S. Conference of Mayors president, said he and Montgomery County, Maryland Police Chief Tom Manger have had “numerous meetings” with DOJ officials in an attempt to hammer out a concrete definition of what a sanctuary city is to no avail.
Manger, the Major Cities Chiefs Police Association president, said Immigration and Customs Enforcement agents “felt like for the entire Obama administration that they were vilified” and now the “handcuffs” are off. Acting Director Tom Homan is a career ICE employee, who believes “no one is off the table,” Manger said.
“If, during the course of targeted enforcement, ICE officers encounter individuals who are in violation of immigration laws and regulations, they may be subject to administrative arrest,” ICE responded in a statement. “As ICE leadership has made clear, the agency will no longer exempt classes or categories of removable aliens from potential enforcement.”
Of the 143,470 administrative arrests ICE made in fiscal year 2017, 73.7 percent were classified “criminal aliens” and 15.7 percent as “aliens with pending criminal charges.” That means 15,495 arrests, or 10.8 percent, involved undocumented immigrants neither convicted nor suspected of a crime.
The end result is that fear is instilled in immigrant communities, Manger said, which has a chilling effect on the reporting of crime.
ICE countered it works closely with state and local law enforcement to ensure foreign nationals who are victims of domestic violence, sexual assault or human trafficking know about special visas available to them.
“If you show up to a domestic violence report and you ask the woman, who called you because she’s been raped, what her immigration status is, she’s not going to call you anymore,” Landrieu said. “And when crimes go unreported, criminals and rapists go free. And that’s what we’re finding on the streets of America.”
Dave Nyczepir is a News Editor at Government Executive’s Route Fifty and is based in Washington, D.C.