This action, filed by the city of Richmond, California, on Mar. 21, 2017, challenged President Trump’s Jan. 25, 2017 Executive Order 13768, dealing with immigration enforcement, which threatened to withhold federal funds from "sanctuary jurisdictions" and take enforcement action against any locality that impeded the federal government's immigration law. Plaintiff, represented by its own counsel and the law firm Cotchett, Pitre & McCarthy, filed its complaint in the U.S. District Court for the Northern District of California.

In its complaint, plaintiff alleged, first, that the Executive Order violated the Separation of Powers and Spending Clauses by usurping Congress' spending power, as well as by imposing new and unrelated conditions on existing funding. Next, plaintiff maintained that the Executive Order violated the Tenth Amendment by coercing cities to choose between losing federal funding and losing control of their municipal self-governance. The Executive Order and subsequent administrative Memoranda provide an unconstitutionally vague definition of what it means to be a "sanctuary" jurisdiction, apart from referencing 8 U.S.C. § 1373, which provides that a local government entity cannot prohibit or restrict communication between government entities or officials and federal immigration authorities. Plaintiff alleged its own compliance with § 1373, noting that ICE had not requested information or detainers from plaintiff.

Plaintiff asserted that the U.S. had begun to designate certain cities as "sanctuary jurisdictions" and that Richmond stood to be designated as such. To improve cooperation between immigrant residents and municipal police, Richmond had since 1990 maintained a policy requiring approval of the city manager or police chief before any city employee may inform, cooperate with, or assist Immigration and Customs Enforcement (ICE). Further, the State of California had also enacted legislation restricting the information that local law enforcement could provide to federal immigration enforcement. Due to these local and state policies, plaintiff feared being designated as a "sanctuary jurisdiction" under the Executive Order and thus losing federal grants. As a small city with a large Latino immigrant population, plaintiff feared the implications of such a loss of key funding for its municipal budget, including for public services that have nothing to do with immigration. Plaintiff alleged it had already suffered costs since the issuance of the Executive Order, because it was forced to expend resources in planning for the loss of federal funding for critical services, and because immigrant residents were discouraged from contacting the police.

Finally, plaintiff alleged that the Executive Order would compel plaintiff to detain people who would otherwise be released, thus exposing plaintiff to liability for violating the Fourth Amendment.

The complaint sought declaratory and injunctive relief. Specifically, plaintiff asked for a declaration that Richmond complied with 8 U.S.C. § 1373, and that the Executive Order violated the Tenth Amendment and the Due Process Clause of the Fifth Amendment, would require plaintiff to violate the Fourth Amendment, and violated the Separation of Powers and Spending Clauses.

The case was at first assigned to Magistrate Judge Sallie Kim, but on Mar. 24, it was reassigned to Judge William H. Orrick after he issued an order relating this case to one already assigned to him, County of Santa Clara v. Trump (IM-CA-0089 in this Clearinghouse).

Plaintiff filed a motion for preliminary injunction on Apr. 4. Plaintiff argued that it was likely to succeed on the merits of its claims that the Executive Order was unconstitutional (in inducing plaintiff to carry out federal immigration policy, in commandeering city resources, in being unconstitutionally vague, and in imposing penalties without due process). Without an injunction, plaintiff argued, it would suffer irreparable harm due to the significant loss of federal funding for critical municipal services. Finally, plaintiff maintained that the balance of equities and the public interest weighed in favor of an injunction.

Defendants next, on Apr. 18, opposed plaintiff's motion for preliminary injunction. In this motion, defendants argued that plaintiff could not show irreparable harm because no immediate, concrete federal action against plaintiff yet existed. Defendants next argued that plaintiff was unlikely to succeed on the merits because its claims were non-justiciable (as plaintiff lacked standing and its claim lacked ripeness), and that plaintiff's claims were in conflict with the public interest and the balance of equities. Additionally, defendants maintained that the President had broad discretion in the enforcement of immigration law, including the enforcement of 8 U.S.C. § 1373 via this Executive Order, and that no injunction should issue against the president to avoid separation-of-powers concerns. In the alternative, defendants argued that if any preliminary injunction did issue, it should be limited to plaintiff and should not apply nationwide.

Plaintiff replied to defendants' opposition on Apr. 25.

In the related San Francisco/Santa Clara litigation, on Apr. 25, Judge Orrick entered a nationwide preliminary injunction suspending operation of the Executive Order. See those cases for details.

Following a May 2 status conference, Judge Orrick vacated the hearing on plaintiff's motion for preliminary injunction, and instead put the Santa Clara/San Francisco case on a path for trial. On May 22, Judge Orrick then denied as moot Richmond's Apr. 12 motion for preliminary injunction, in light of the nationwide injunction in the related San Francisco/Santa Clara litigation.

Defendants filed a motion to dismiss on June 8. They argued that Richmond lacked standing, that its claim was unripe, and that it failed to state a claim regarding the EO (which defendants claimed was an internal directive not affecting plaintiff), regarding the AG Memorandum, and regarding its own compliance with § 1373. Plaintiff responded on June 21; defendants replied on June 29. On July 6, plaintiff Santa Clara (followed by joinders from San Francisco and Richmond on July 7) moved for leave to file a surreply in opposition to the motion to dismiss. Plaintiffs argued that recent statements by President Trump and DHS officials contradicted assertions in defendants' reply brief.

On June 16, the states of West Virginia, Louisiana, Alabama, Arkansas, Michigan, Nevada, Ohio, Oklahoma, South Carolina, and Texas moved for leave to file an amicus brief in support of defendants' motion to dismiss.

On July 12, Judge Orrick held a hearing (in all three related cases) on defendants' motions to dismiss and motion for reconsideration. Although on July 20 he denied defendants' motions regarding Santa Clara and San Francisco, on Aug. 21 he granted defendants' motion regarding Richmond. In the latter order, Judge Orrick contrasted the other plaintiffs, which the federal government had clearly identified and targeted as sanctuary jurisdictions, with Richmond, which the federal government had apparently not targeted at all. He thus held that Richmond had established neither pre-enforcement standing (as it had demonstrated no well-founded fear of enforcement against it), nor a viable claim for declaratory relief (as it had demonstrated no actual controversy with the federal government about its compliance with § 1373). 2017 WL 3605216 (N.D. Cal. Aug. 21, 2017).

If Richmond sought to file an Amended Complaint, this was due Sept. 25, 2017 (extended from Sept. 11). Otherwise, Judge Orrick noted that Richmond may file an amicus brief in the Santa Clara/San Francisco litigation. Finally, he noted that if the federal government does indeed in the future target Richmond as a sanctuary jurisdiction, Richmond may then litigate.

On Aug. 25, Judge Orrick found State of California v. Sessions to be a related case, and reassigned it to himself. That case also challenges DOJ's immigration-related conditions on law enforcement funding.

On Sept. 25, Richmond stipulated that it will not file an Amended Complaint. It added:

Richmond will accept the Court’s invitation to continue as an amicus curiae in this important case and if Defendants’ position against Richmond changes, Richmond will litigate the issues. . . . Richmond will continue to support its immigrant community and all residents of Richmond.

This case appears to have been dismissed.

Ava Morgenstern - 02/10/2018


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