Ninth Circuit blocks DOJ from discriminating against sanctuary cities applying for federal grant

Same grant Tucson city officials said may be at risk if ‘sanctuary city’ initiative passes

The Ninth Circuit Court of Appeals ruled last week that conditions placed by the Department of Justice on a federal grant, the Edward Byrne Memorial Justice Assistance Grant Program, known as Byrne JAG, lacked statutory authority and the court blocked the DOJ from requiring recipients to comply with “notice and access” conditions promulgated by former Attorney General Jeff Sessions.

The notice condition required local law enforcement departments give the Department of Homeland Security advanced notice when undocumented, or suspected to be undocumented, individuals are released from custody. The access condition required recipients give federal agents access to facilities where those individuals are detained.

The city of Los Angeles filed suit last August when the Trump DOJ attempted to withhold funds designated for 2017 and received a preliminary victory from U.S. District Judge Manuel Real whose injunction ruled Sessions had limited authority to propose or shape restrictions on grant applicants and recipients.

The Ninth Circuit’s ruling extends that injunction indefinitely unless the DOJ attempts to appeal the decision to the Supreme Court and the nation’s highest court overturns the decision.

The loss of Byrne JAG funds was cited as a concern of opponents of Proposition 205, also known as the ‘sanctuary city’ initiative, in an Oct. 20 Arizona Daily Star article.

A memo coordinated and released by Tucson’s city attorney, city manager and chief of police in early October appeared to conflate federal grant dollars the Tucson Police Department currently receives with other DOJ programs under attack by the Trump administration, implying they were at risk.

A different Ninth Circuit ruling in July upheld the DOJ’s use of a points system to rank applicants of Community Oriented Policing Services grants, also known as COPS grants, based on their compliance with certain criteria, including with federal immigration laws.

Billy Peard, an attorney affiliated with People’s Defense Initiative who helped craft Proposition 205, said the COPS grants are discretionary and only a limited amount of funding is available under the program, making the application process competitive. He said “virtually every city” qualifies for some level of the Byrne JAG grants, which are more like mandatory grants.

None of the grants cited in the October memo fall under the COPS program, according to an examination of the DOJ program’s website. The memo said it was “impossible to predict how many of these grant programs would be put at risk by approval of Prop 205.”

With the Ninth Circuit’s recent ruling on the Byrne JAG grants it now appears that TPD would not risk losing any federal dollars if Proposition 205 passes. Tucson Del Sur reached out to City Attorney Mike Rankin on this question but has not received a response.

Peard said the appellate court’s ruling was “good news but not surprising” and that it was just a continuation of the steady drumbeat of decisions in federal courts blocking the Trump administration’s attempts to punish cities that provide sanctuary to undocumented individuals.