This case is another response to efforts by the Trump Administration to strip certain law enforcement funding from "sanctuary" cities and states unless their governments agree to participate in federal immigration enforcement. The city and county of San Francisco previously sued the Department of Justice (DOJ) over immigration conditions imposed on the Edward Byrne Memorial Justice Assistance Grant (Byrne JAG) program twice in 2017, details of those cases can be found here and here.

On August 22, 2018, the city and county of San Francisco filed this lawsuit in the Northern District of California. San Francisco, represented by the city attorney, sued Attorney General Jeff Sessions, the Acting Assistant Attorney General, the United States Department Justice (DOJ), and dozens of unnamed defendants also allegedly responsible for unconstitutionally conditioning grants of federal funding. San Francisco claimed that this violated the Spending Clause, separation of powers, and the Tenth Amendment to the U.S. Constitution, and sought declaratory and injunctive relief. The case was assigned to Judge William Orrick. It was related to a similar case brought by the state of California on Sept. 10, 2018; that case can be found here.

San Francisco alleged that the defendants were again imposing unlawful immigration-related conditions on Byrne JAG grants (federal funds that go to a number of criminal justice programs in San Francisco) for fiscal year 2018. The plaintiff stated that several of these conditions were essentially the same as those imposed on FY2017 grants, but that the defendants had additionally imposed two new conditions. Those additional conditions require Byrne JAG recipients: (1) not to publicly disclose sensitive federal law enforcement information in attempts to harbor or shield fugitives from justice or aliens in violation of federal immigration law; and (2) to provide information about the applicant’s laws and policies for purposes of assessing compliance with 8 U.S.C. § 1373 (which bars local governments from restricting their employees from sharing citizenship and immigration status information with federal immigration authorities). These conditions are referred to as the “nondisclosure” and “information” conditions, respectively. Failure to cooperate with these conditions would deny the plaintiff up to $1.4 million in Byrne JAG funds for FY2018. The plaintiff claimed that compliance conflicted with existing state and county laws.

On December 21, 2018, the City and County of San Francisco moved for summary judgment. Oral argument on that motion was scheduled for February 13, 2019.

On March 4, 2019, Judge Orrick granted the plaintiff's motion for summary judgment and denied the defendants' motion for partial dismissal or partial summary judgment. Judge Orrick found that the challenged conditions were ultra vires and violated the separation of powers; that 8 U.S.C. § 1373 was unconstitutional; that the Attorney General exceeded the Spending Clause by imposing ambiguous conditions on Byrne JAG grants in FY2018; that the conditions were arbitrary and capricious in violation of the Administrative Procedure Act; that California was entitled to the mandamus relief it was seeking in its related case; and that a nationwide injunction was warranted but stayed.

Judge Orrick focused his analysis on the two new conditions imposed for FY2018, incorporating by reference the arguments related to the duplicate conditions from FY2017. The DOJ relied on three statutory provisions to support its conclusion that Congress had delegated authority to the Assistant Attorney General to exercise discretion over formula grants, but Judge Orrick concluded that these provisions did not grant such an independent authority to impose the FY2018 conditions on Byrne JAG grants.

On March 26, 2019, Judge Orrick issued his permanent injunction, enjoining the defendants from using the FY2018 Byrne JAG funding conditions for any California state entity, San Francisco, any California political subdivision, or any jurisdiction in the United States. The judge then stayed the nationwide aspect of the permanent injunction until further rulings from the Ninth Circuit (which had expressed concerns over the nationwide nature of the relief during the 2017 litigation over Byrne JAG funding conditions).

On May 3, 2019, the defendants appealed to the Ninth Circuit (Docket No. 19-15947). The parties subsequently entered mediation conferences. In November 2019, the Ninth Circuit stayed the appeals. The case is ongoing.

Cianan Lesley - 01/31/2019
Sam Kulhanek - 04/08/2019
Alec Richards - 09/29/2019
Aaron Gurley - 02/15/2020


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