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City of Chicago v. Sessions

United States District Court, N.D. Illinois, Eastern Division

September 15, 2017

THE CITY OF CHICAGO, Plaintiff,
v.
JEFFERSON BEAUREGARD SESSIONS III, Attorney General of the United States, Defendant.

          MEMORANDUM OPINION AND ORDER

          Harry D. Leinenweber, Judge

         This case involves the intersection between federal immigration policies and local control over policing. Defendant Jefferson Beauregard Sessions III, the Attorney General of the United States, seeks to impose new conditions on an annual federal grant relied on by the City of Chicago for law enforcement initiatives. These conditions require additional cooperation with federal immigration officials and directly conflict with Chicago's local policy, codified in its Welcoming City Ordinance, which restricts local officials' participation in certain federal immigration efforts. Chicago claims its policies engender safer streets by fostering trust and cooperation between the immigrant community and local police. Chicago's policies are at odds with the immigration enforcement priorities and view of public safety espoused by the Attorney General.

         Against this backdrop, the City of Chicago claims that these new conditions are unlawful and unconstitutional, and implores this Court to grant a preliminary injunction enjoining their imposition. For the reasons described herein, the Court grants in part, and denies in part, the City of Chicago's Motion for a Preliminary Injunction.

         I. FACTUAL BACKGROUND

         A. The Edward Byrne Memorial Justice Assistance Grant Program

          The federal grant at issue is awarded by the Edward Byrne Memorial Justice Assistance Grant Program (the “Byrne JAG grant”). See, 34 U.S.C. § 10151 (formerly 42 U.S.C. § 3750). Named after a fallen New York City police officer, the Byrne JAG grant supports state and local law enforcement efforts by providing additional funds for personnel, equipment, training, and other criminal justice needs. See, 34 U.S.C. § 10152 (formerly 42 U.S.C. § 3751). The Byrne JAG grant is known as a formula grant, which means funds are awarded based on a statutorily defined formula. See, 34 U.S.C. § 10156 (formerly 42 U.S.C. § 3755). Each state's allocation is keyed to its population and the amount of reported violent crimes. Ibid. The City of Chicago (the “City”) has received Byrne JAG funds since 2005, including $2.33 million last year on behalf of itself and neighboring political entities. (See, Decl. of Larry Sachs, ¶¶ 3, 11-12.) The City has used these funds to buy police vehicles and to support the efforts of non-profit organizations working in high crime communities. (See, Id. ¶ 4.)

         B. New Conditions on the Byrne JAG Grant

         In late July 2017, the Attorney General announced two new conditions on every grant provided by the Byrne JAG program. (See, Byrne JAG Program, FY 2017 Local Solicitation, Ex. 11 to Def.'s Br.) The two new conditions require, first, that local authorities provide federal agents advance notice of the scheduled release from state or local correctional facilities of certain individuals suspected of immigration violations, and, second, that local authorities provide immigration agents with access to City detention facilities and individuals detained therein. Additionally, a condition on Byrne JAG funds was added last year that requires the City to certify compliance with a federal statute, 8 U.S.C. § 1373, which prohibits local government and law enforcement officials from restricting the sharing of information with the Immigration and Naturalization Service (“INS”) regarding the citizenship status of any individual. (See, FY 2016 Chicago/Cook County JAG Program Grant Award, dated Sept. 7, 2017, at 2-13, Ex. C to Decl. of Alan Hanson (“Hanson Decl.”).) The condition to certify compliance is also imposed on 2017 Byrne JAG funds. (See, Byrne JAG Program, FY 2017 Local Solicitation, Ex. 11 to Def.'s Br.) The exact text of the three conditions is as follows:

(1) A State statute, or a State rule, -regulation, -policy, or -practice, must be in place that is designed to ensure that, when a State (or State-contracted) correctional facility receives from DHS a formal written request authorized by the Immigration and Nationality Act that seeks advance notice of the scheduled release date and time for a particular alien in such facility, then such facility will honor such request and -- as early as practicable -- provide the requested notice to DHS.
(2) A State statute, or a State rule, -regulation, -policy, or -practice, must be in place that is designed to ensure that agents of the United States acting under color of federal law in fact are given to access any State (or State-contracted) correctional facility for the purpose of permitting such agents to meet with individuals who are (or are believed by such agents to be) aliens and to inquire as to such individuals' right to be or remain in the United States.
(3) The applicant local government must submit the required ‘Certification of Compliance with 8 U.S.C. 1373' (executed by the chief legal officer of the local government).

(Byrne JAG Program Grant Award for County of Greenville, Special Conditions (“Byrne Conditions”), ¶¶ 53, 55-56, Ex. A to Hanson Decl.; see also Hanson Decl., ¶ 6.) These conditions will be referred to respectively as the notice condition, the access condition, and the compliance condition. The City claims all three conditions are unlawful and unconstitutional, even though it acquiesced to the compliance condition when accepting the 2016 Byrne JAG funds.

         The compliance condition requires the City to certify compliance with Section 1373. (Byrne Conditions ¶ 53.) Section 1373 is titled “Communication between government agencies and the Immigration and Naturalization Service” and provides as follows, 8 U.S.C. § 1373:

(a) In General
Notwithstanding any other provision of Federal, State, or local law, a Federal, State, or local government entity or official may not prohibit, or in any way restrict, any government entity or official from sending to, or receiving from, the Immigration and Naturalization Service information regarding the citizenship or immigration status, lawful or unlawful, of any individual.
(b) Additional Authority of Government Entities
Notwithstanding any other provision of Federal, State, or local law, no person or agency may prohibit, or in any way restrict, a Federal, State, or local government entity from doing any of the following with respect to information regarding the immigration status, lawful or unlawful, of any individual:
(1) Sending such information to, or requesting or receiving such information from, the Immigration and Naturalization Service.
(2) Maintaining such information.
(3) Exchanging such information with any other Federal, State, or local government entity.
(c) Obligation to Respond to Inquiries
The Immigration and Naturalization Service shall respond to an inquiry by a Federal, State, or local government agency, seeking to verify or ascertain the citizenship or immigration status of any individual within the jurisdiction of the agency for any purpose authorized by law, by providing the requested verification or status information.

         C. The City's Welcoming Ordinance

         Chicago's Welcoming City Ordinance (the “Ordinance”) is a codified local policy that restricts the sharing of immigration status between residents and police officers. See, Chicago, Illinois, Municipal Code § 2-173-005 et seq. The explicit purpose of the Ordinance is to “clarify what specific conduct by City employees is prohibited because such conduct significantly harms the City's relationship with immigrant communities.” Id. § 2-173-005. The Ordinance reflects the City's belief that the “cooperation of the City's immigrant communities is essential to prevent and solve crimes and maintain public order, safety and security in the entire City” and that the “assistance from a person, whether documented or not, who is a victim of, or a witness to, a crime is important to promoting the safety of all its residents.” Ibid. Since the mid-1980s, the City has had in place some permutation of this policy, typically in the form of executive orders that prohibited City agents and agencies from requesting or disseminating information about individuals' citizenship. (See, Executive Order 85-1, 89-6, Exs. A-B to Pl.'s Br.) First codified in Chicago's Municipal Code in 2006, the Ordinance was augmented in 2012 to refuse immigration agents access to City facilities and to deny immigration detainer requests unless certain criteria were met. See, Chicago, Illinois Municipal Code § 2-173-005. An immigration detainer request is a request from Immigration and Customs Enforcement (“ICE”), asking local law enforcement to detain a specific individual for up to 48 hours to permit federal assumption of custody.

         The Ordinance prohibits any “agent or agency” from “request[ing] information about or otherwise investigat[ing] or assist[ing] in the investigation of the citizenship or immigration status of any person unless such inquiry or investigation is required by Illinois State Statute, federal regulation, or court decision.” Id. § 2-173-020. It goes on to forbid any agent or agency from “disclos[ing] information regarding the citizenship or immigration status of any person.” Id. § 2-173-030. The Ordinance specifically characterizes “[c]ivil immigration enforcement actions” as a “[f]ederal responsibility, ” and provides as follows:

a. Except for such reasonable time as is necessary to conduct the investigation specified in subsection (c) of this section, no agency or agent shall:
1. arrest, detain or continue to detain a person solely on the belief that the person is not present legally in the United States, or that the person has committed a civil immigration violation;
2. arrest, detain, or continue to detain a person based on an administrative warrant entered into the Federal Bureau of Investigation's National Crime Information Center database, or successor or similar database maintained by the United States, when the administrative warrant is based solely on a violation of a civil immigration law; or
3. detain, or continue to detain, a person based upon an immigration detainer, when such immigration detainer is based solely on a violation of a civil immigration law.
b.
1. Unless an agency or agent is acting pursuant to a legitimate law enforcement purpose that is unrelated to the enforcement of a civil immigration law, no agency or agent shall:
A. permit ICE agents access to a person being detained by, or in the custody of, the agency or agent; B. permit ICE agents use of agency facilities for investigative interviews or other investigative purpose; or C. while on duty, expend their time responding to ICE inquiries or communicating with ICE regarding a person's custody status or release date.
2. An agency or agent is authorized to communicate with ICE in order to determine whether any matter involves enforcement based solely on a ...

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