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Appeals Court: DOJ Can Hand Out Police Grants Based on Immigration Enforcement

Seattle Police Officers stage near a May Day protest in Seattle. Immigrant and union groups marched in cities across the United States on Monday, to mark May Day and protest against President Donald Trump's efforts to boost deportation.

Seattle Police Officers stage near a May Day protest in Seattle. Immigrant and union groups marched in cities across the United States on Monday, to mark May Day and protest against President Donald Trump's efforts to boost deportation. Ted S. Warren/AP Photo

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A federal appeals court ruled that the Trump administration can effectively penalize sanctuary cities by awarding preference points for COPS grants to jurisdictions that cooperate with federal immigration authorities.

The Justice Department can make cooperation with immigration authorities a stipulation of grant funding for local police departments, a federal appeals court ruled last week in a decision that marks a loss for Los Angeles and other so-called sanctuary cities.

The ruling by the 9th U.S. Circuit Court of Appeals overturns a lower court decision that blocked the Justice Department from using immigration enforcement-related factors to prioritize community policing grants.

The 2-1 reversal likely means the Justice Department can move forward with selection and disbursement of Community Oriented Policing Services (COPS) hiring program grants, which have been on hold since a lower court issued a nationwide injunction in April 2018 that banned the department from linking the grant money to immigration enforcement. A department spokesman did not address questions this week regarding next steps for the grant program.

The 9th Circuit’s COPS grant ruling marks a rare victory for the administration’s efforts to keep grant money from cities that adopt policies meant to protect undocumented immigrants from deportation.

"The department is pleased that the court recognized the lawful authority of the administration to provide favorable treatment when awarding discretionary law-enforcement grants to jurisdictions that assist in enforcing federal immigration laws,” a DOJ spokesman said in an emailed statement.

The Los Angeles City Attorney’s Office said it is considering next steps in the case, including seeking a rehearing before the full 9th Circuit.

"This case is important for a host of reasons. For one, L.A. has historically relied on COPS funding to support public safety here at home, and gotten it every time we applied until the Trump Administration took office," said Los Angeles City Attorney Mike Feuer in an emailed statement. "For another, if this decision were to stand, this or another Administration could add other conditions, favoring jurisdictions that criminalize abortion, or allow teachers to have guns in classrooms, among others."   

Under former Attorney General Jeff Sessions, the Trump administration enacted new conditions for Justice Department-issued grants as a means to encourage state and local law enforcement agencies to cooperate with immigration officials. Three appellate courts in the 3rd, 7th and 9th Circuits have ruled against the DOJ’s other efforts to withhold federal grant funding from municipalities that do not cooperate with federal immigration authorities.  

With split rulings against the Justice Department in the other cases, it's unclear what the implications of the COPS grant ruling will be, said city attorney spokesman Rob Wilson. 

"Although the COPS grant is a different type of grant from the one at issue in the other cases, the basic question of whether the Department of Justice has authority to divert money Congress has designated for a specific purpose is at issue in all of these cases," he said. "No court, other than in our case, has decided that DOJ has that blanket authority."

The federal COPS hiring program awarded more than $98 million to 179 police departments in fiscal 2017 to pay for agencies to hire more than 800 officers for community policing.

That year, the Justice Department introduced new grant stipulations that gave preferential points to COPS grant applicants who signed a cooperation agreement allowing the Department of Homeland Security access to suspected illegal immigrants in jail facilities and alerted immigration authorities about their pending release from custody 48 hours in advance. Preferential points were also given to applicants that listed illegal immigration as a focus area for the grant.

Similar notice and access provisions were also included as stipulations of the Byrne Memorial Justice Assistance Grant Program, which also became the subject of lawsuits by cities, including Philadelphia, San Francisco and Chicago.

Los Angeles has also filed a lawsuit challenging the Byrne JAG stipulations, but Friday’s ruling concerned only the COPS grant money.

Los Angeles received COPS grants through the federal program in 2012 and 2016.  The city intended the 2017 grant money to pay help fund its Community Safety Partnership Program, which deploys officers to select public housing developments to engage with at-risk youth, ensure safe passage on school routes, and build relationships in the communities in the neighborhoods, said city attorney spokesman Rob Wilcox. 

In its 2017 application, Los Angeles did not sign the DHS cooperation agreement and listed “building trust and respect” rather than “illegal immigration” as its intended focus area. When the city did not receive a COPS hiring grant in fiscal 2017, it filed a lawsuit alleging the Justice Department had overstepped its authority and violated the separation of powers among the branches of government as laid out in the Constitution.

But Friday’s ruling, written by U.S. Circuit Judge Sandra S. Ikuta, found the Justice Department “did not exceed its statutory authority in awarding bonus points to applicants that selected the illegal immigration focus area or that agreed to the Certification.”

“[A]n award of grant funds to states or localities that intend to focus on illegal immigration is well within the statute’s scope, and DOJ has broad discretion to adopt such a focus area,”  Ikuta wrote.

Ikuta was joined in her opinion by Judge Jay S. Bybee. Both were appointed to the bench by President George W. Bush. Judge Kim McLane Wardlaw, an appointee of President Bill Clinton, dissented.

The Justice Department’s insistence on not distributing grant money while lawsuits challenging its new grant policies were pending held up funds destined for both cities with sanctuary policies as well as those that did not have them.  

Other cities that had sued over grant stipulations include Philadelphia and Chicago.

The 3rd Circuit sided with Philadelphia on its legal challenge earlier this year, ruling that the conditions the Justice Department placed on the Byrne JAG awards were “unlawfully imposed.”

In the Chicago case, the 7th Circuit in 2018 upheld a lower court ruling that banned the Justice Department from enforcing the notice and access requirements in the Byrne JAG grant.

Editor's Note: This story was updated on Wednesday to add comments from the Los Angeles City Attorney's office.

Andrea Noble is a staff correspondent with Route Fifty.

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