The CITY OF PHILADELPHIA v. Jefferson Beauregard SESSIONS III, Attorney General of the United States, 280 F. Supp. 3d 579

MEMORANDUM RE: MOTION FOR PRELIMINARY INJUNCTION Baylson, J. TABLE OF CONTENTS I.

Summary of the Counts in the Complaint ...590 II.

Summary of Findings of Fact and Conclusions of Law.. .591 III. Byrne JAG Program... 593 IV. The Three Challenged Conditions .,.594 V. Philadelphia’s Policies at Issue... 596 VI. Prior Litigation Over “Sanctuary City” Policies... 597 A. County of Santa Clara v. Trump... 597 B. City of Chicago v. Sessions.. .599 VIL Plaintiffs Motion for Preliminary Injunction... 600 VIII.Review of Testimony and Sworn Declarations Filed by Plaintiff in Support of Motion... 600 A. Testimony of Police Commissioner Ross... 600 1. Philadelphia Police Priorities... 601 2.

Reasons for Philadelphia Police Department Policies on Immigrants.. .601 3. Community Policing.. .602 4. Immigrants Have No Immunity from Arrest and Prosecution for Crimes in Philadelphia.. .602 5. Reasons for Police Policies Criticized by the Attorney General... 602 6. Cooperation with Federal Law Enforcement Agencies... 604 B. Declaration and Testimony of Julie Wertheimer... 604. C. Declaration and Testimony of Eva Gladstein.. .605 D. Declaration and Testimony of Brian Abernathy... 606 E.Testimony of Thomas Farley.. .609 IX. Review of Sworn Declarations Filed by Defendant in Opposition to Motion ...609 X.

Findings of Fact.. .609 XI. The APA and the Challenged Conditions ...613 A. Final Agency Action... 614 1. The Parties’ Contentions... 614 2. The Agency Action at Issue is Final ...614 B. The City’s Challenges under APA

Section 706... 615 1. Statutory Authority... 615 a) “Special Conditions” Authorization ...616

(1) The Parties’ Contentions ...616

(2) Section 10102(a)

(6) Does Not Authorize Any Challenged Condition ...616 b) “All Other Applicable Federal Laws” Authorization.. .617

(1) The Parties’ Contentions ...617

(2) Section 10153(a)(5)(

D) May Authorize The Certification Condition. . .619 2. Arbitrary and Capricioús... 619

a) The Parties’ Contentions... 619

b) The “Backgrounder on Grant Requirements” ...621

c) The July 25, 2017 Press Release. . .623

d) The 2016 OIG Report... 624 3. Constitutionality of Conditions ...625 XII. The Intersection between Criminal Law and Immigration Law.. .625 A. Lawfully Present versus Unlawfully Present Noncitizens.. .626 B. Removal: Deportability (8 U.S.C. § 1227) versus Inadmissibility (8 U.S.C. § 1182).. .627 1. Overview.. .627 2. Detention pending removal proceedings — criminal aliens... 628 3. Removal proceedings... 628 4. Consequences of Deportability and Inadmissibility.. .628 C. Criminal Grounds of Deportability and Inadmissibility.. .629 1. § 1227(a)

(2) Sets out Criminal Grounds of Deportability.. .629

a) Crimes Involving Moral Turpitude (“CIMT”).. .629

b) Aggravated Felonies.. .630

c) Other offenses... 630 2. § 1182(a)

(2) Sets out Criminal Grounds of Inadmissibility.. .631 D. The Relevance of Padilla and Galar-za. . .631 1. Padilla v. Kentucky.. .631 2. Galarza v. Szalczyk... 632 E. ICE Programming and Enforcement Priorities... 633 1. Secure Communities Program... 633 2. Priority Enforcement Program. . .634 F. President Trump’s Executive Order: New Enforcement Priorities... 634 G. Philadelphia’s Policy and Potential Conflicts... 636 H. Statutes Which Impact Both Immigration and Criminal Law.. .637 I. Selective Enforcement... 638 XIII.Spending Clause and Separation of Powers... 639 A.Relatedness... 639 1.

Byrne JAG Program and the DOJ Conditions... 642 2. Certification Condition... 643 B. Lack of ambiguity... 644 C. Coercion and the Tenth Amendment. . .647 1. - New York v. United States... 648 2. Printz v. United States... 648 3. National Federation of Independent Business v. Sibelius... 649 4. City of New York v. United. States...660 5. The Present Case... 651 XIV. Philadelphia Substantially Complies with

Section 1373... 651 A. Substantial Compliance Can Be Implied. . .652 B. Substantial Compliance Can Apply to Grant Conditions... 653 XV. Irreparable Harm... 655 A. The Status Quo... 655 B. Philadelphia Has Demonstrated Irreparable Harm... 655 XVI. Balance of Equities and the Public Interest.. .657 XVII. CONCLUSION... 658 If there is any fixed star in our constitutional constellation, it is that no official, high or petty, can prescribe what shall be orthodox in politics, nationalism, religion, or other matters of opinion or force citizens to confess by word or act their faith therein.

The Complaint in this ease asserts multiple counts of constitutional and statutory violations, relating to the federal government’s attempt to deprive the ¡City of Philadelphia the receipt of grants from the United States Department of Justice, referred to as “JAG Program” grants. After a prompt Rule 16 conference, because of approaching events that threatened to deprive the City of Philadelphia of this grant money, and the non-monetary consequences of the federal government’s proposed actions, the City has moved for a preliminary injunction. The Court held an evidentiary hearing on October . 26, 2017. 1,

Summary of the Counts in the Complaint The City filed a six-count Complaint on August 30, 2017, alleging in detail the City’s overarching commitments to welcoming immigrants, holding wrongdoers accountable for their criminal conduct regardless of their immigration status, and promoting the health, safety,' and welfare of all residents.

The City evidently prizes the hard-won trust it has earned with immigrant communities, and believes that the City is both safer and better off when immigrants do not “fear adverse consequences to themselves or to their families from interacting with City officers.” (ECF 1 (“Compl”) ¶ 2). In the City’s views fostering trust with immigrant communities promotes cooperation with police — -particularly by immigrant victims and witnesses of crimes — which in turn promotes public safety. (Id. ¶ 3).

To that end, the City has instituted a number of policies intended to limit collection of immigration status information in the provision of City services and routine policing efforts, and limit coordination with federal immigration enforcement. (Id ¶¶ 21- 51). Philadelphia hastens to add, however, that it cooperates -with federal authorities in various arenas of criminal justice, including by participating in federal task forces, and employs several databases that are visible to the Federal Bureau of Investigations (“FBI”) and Immigration and Customs Enforcement (“ICE”).

The City has applied for, and received, federal funding through the Byrne Justice Assistance Grants Program (“JAG Program”) every fiscal year since the JAG Program assumed its present form in 2005. (Id. ¶ 60). In fiscal year 2016, it had to agree to some fifty-three special conditions in order to receive $1.68 million in JAG Program funds, as demonstrated on its 2016 grant approval sheet. (Id.; Compl. Ex. 9). The City objects to three conditions recently imposed by the Department of Justice through the Attorney General, and has filed suit to enjoin them.

Specifically, it alleges that the Attorney General cannot condition JAG Program funds on 1) requiring federal immigration agents access to City detention facilities (the “Access Condition”); 2) providing the Department of Homeland Security (“DHS”)’ at- least 48 hours’ advance notice of the date and time of the release of any. inmate about whom DHS has requested such information (the 48 hour “Notice Condition”); and 3) certifying compliance with 8 U.S.C. § 1373 (“Certification Condition”; collectively, the “Challenged Conditions”). (Compl. ¶ 5). The City alleges six counts for injunctive and declaratory relief.

Count I asserts that the Attorney General acted ultra vires and in violation of the Administrative Procedure Act by imposing-the Challenged Conditions, because the' Challenged Conditions áre not authorized by the Congressional statute creating the JAG Program, do not concern administration and spending of JAG Program funds, and are at odds with the JAG Program’s formula grant structure. (Id. ¶¶ 105-12). Count II asserts that the imposition of the Challenged Conditions is unconstitutional and therefore violates the Administrative Procedure Act (“APA”).

The City argues that the Constitution bestows upon Congress the exclusive power to enact spending legislation pursuant to

Article I, § 8, cl. 1 (the, “Spending Clause”), whereas the President and the Executive Branch are separately tasked with “tak[ing] Care that the Law be faithfully executed.” U.S. Const, art. II, § 3, cl. 5 (the “Take Care Clause”). The City also claims that Attorney General’s imposition of the new conditions amounts to an unconstitutional refusal to disburse money that Congress has already appropriated. (Id. ¶¶ 113-21).

Count III alleges that the Attorney General’s imposition of the Challenged Conditions is arbitrary and capricious, and therefore violates the APA, because it deviates from past agency policy without reasoned explanation or justification. (Id. ¶¶ 122-24). Count IV asserts that even .Congress could not have imposed these conditions on JAG Program grants because doing so would violate the Spending Clause.

The Challenged Conditions, the City argues, are unrelated to the purpose of. the JAG Program, do not impose unambiguous obligations on recipients, and transgress principles of federalism. (Id. ¶¶ 125-31). ' Count V alleges that the conditions on JAG Program funds seek to commandeer City officials into the enforcement of federal immigration law in violation of the Tenth Amendment. The City seeks injunc-tive and declaratory relief preventing the Attorney General from interpreting 8 U.S.C, § 1373 and the two other grant conditions in a way that would violate the Tenth Amendment. (Id. ¶¶ 132-37).

Count VI seeks a declaration by this Court that the City is in compliance with 8 U.S.C. •§ 1373, as constitutionally construed. (Id. ¶¶ 138-44). II.

Summary of Findings of Fact and Conclusions of Law After the City’s Motion for a Preliminary Injunction was filed, the Court determined that the parties should have a chance to present relevant facts, in order to supplement the declarations which had been filed. Testimony was received from various City officials, and the most crucial witnesses were Police Commissioner Ross, Deputy Managing Director Abernathy, and Health Commissioner Farley — who established Philadelphia’s actual practices with regard to so-called “undocumented” aliens — and also, “criminal aliens.” ■ .

Philadelphia is a not. a “sanctuary city” — if that term means that there are any policies that would prevent or inhibit the investigation, arrest, prosecution and sentencing of aliens. There are none. The term “criminal aliens,” 'although not defined by any statute, includes individuals who are not citizens, but who have been convicted of serious crimes, or have reentered the United States after being deported. This category of criminal alien represents a fairly small percentage of the total number of non-citizens.

Approximately one half of unlawfully present non-citizens can be accurately described as “visa overstayers” — that is, they entered the United States legally, on a properly issued visa, but have stayed after the visa expired. Although Congress has enacted laws that allow civil proceedings to deport any undocumented alien, the record of the case establishes that our federal government, for decades, with both Democratic or Republican presidents, has taken no steps whatsoever to deport visa over-stayers or aliens who entered unlawfully and without being arrested.

All deportation efforts, from World War II to the present time, have -focused on “criminal aliens.” As the record shows, Philadelphia has certain protective policies which primarily apply to aliens who are “visa overstay-ers.” The government asserts these policies allow it to deny the Byrne JAG grants to Philadelphia. This factual testimony forms an important part of the Court’s rulings, which also depend on established statutory and constitutional principles.

Turning to the legal issues presented by the City, as the moving party for preliminary injunction, the Court finds that the Attorney General’s implementation of two of the conditions for receiving the Byrne grant, which we will term the “48 hour notice” condition, and the “jail access” condition, were issued without appropriate authority under the Administrative Procedure Act, a statute enacted by Congress many years ago which regulates the matters on which federal government agencies, of which the Department of Justice is one, may issue conditions.

For the remaining issues, this opinion will explain in some detail the intersection between federal and state criminal laws, and federal immigration practices. Regulation of immigration is exclusively a federal function, but it is not exclusively within the province of the executive branch of government. Congress has enacted specific laws which give the federal government significant authority to deport “criminal aliens.” There is abundant statutory authority for using civil proceedings to deport visa over-stayers, as well as individuals who entered without inspection, but have not been convicted of any crimes.

However, there has been virtually no enforcement action whatsoever to deport visa overstayers, or illegal entrants who were not arrested at the time they crossed into the United States, usually from Mexico. Turning to the other allegations in the City’s complaint, the Court gives careful analysis to the Spending Clause in

Article I,

Section 8, Clause 1 of the United States Constitution, and also to the Tenth Amendment, which reserves to the states (and by definition, local governments) those powers not designated for'the federal government. In analyzing other actions issued by the Department of Justice, which claims that their non-observance by the City warrants rejection of the FY 2017 Byrne JAG grant to Philadelphia, the Court concludes the City is likely to succeed in its claims that the Department of Justice’s conditions are improper under settled principles of the Spending Clause, the Tenth Amendment, and principles of federalism.

In doing so, the Court acknowledges that Congress has prohibited state or local governments restricting communications about aliens to the federal government. Although the Court declines to rule whether a certification condition is applicable, the record of the case clearly shows, giving due credibility to the testimony about the City’s practices, that Philadelphia is in “substantial compliance” with all of these DOJ conditions.

Applying the requisite proof for preliminary injunction of probability of success on the merits, irreparable harm, a balancing of equities, preserving the status quo, and the public interest, the Court will issue a preliminary injunction in favor, of the City, that the City may certify its compliance with these conditions, and to enjoin the Department of Justice from denying the City’s FY 2017 Byrne JAG grant. III. Byrne JAG Program The federal grant at issue is awarded under the Edward Byrne Memorial Justice Assistance Grant Program (the “JAG Program” or the “Byrne Program”).

See 34 U.S.C. § 10151 (formerly 42 U.S.C. § 3750). Named after a fallen New York City police officer, the JAG Program 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). A more robust understanding of federal grants, appearing below, is important to fully appreciate the contours of the JAG Program. Federal awarding agencies have no independent power to award grants.

Thus, all grants must be authorized by Congress in the form of enabling legislation.’ The degree of discretion afforded to awarding agencies depends on the statutory text and the type of grant. However, regardless of the amount of authority delegated by Congress to the awarding agency, all grant terms must be consistent with the authorizing statute. There are two main categories of federal grants: (1) discretionary grants, and (2) mandatory grants. The JAG Program is a mandatory grant.

(1) Discretionary grants are those for which an awarding agency generally possesses discretion to select the awardees and the amount they re-ceivé. Discretionary grants are typically made through a competitive grant process for a specific project, and federal awarding agencies often attach program or project-specific requirements to grant funds.

(2) Mandatory grants are those which an awarding agency must make if a grantee meets the requirements set forth in the authorizing statute. States seeking mandatory grant awards must submit a plan to the federal agency administering the program detailing how it will use the grant funds. Notably, mandatory grants are not “competitive,” and no applicant that complies with grant requirements is excluded from receiving funds. Mandatory grants can be further divided into three sub-categories: (

A) entitlement grants, (

B) block grants, and (

C) formula grants. The Byrne Program is a formula grant. (

A) Entitlement grants are those in which the beneficiary is entitled to receive money upon demonstrating that it qualifies for assistance. One example is Medicaid, where the beneficiaries are individuals. (

B) Block grants are those awarded pursuant to formulas set out in their respective authorizing statutes, which often take into account factors such as population and annual Congressional appropriations. Block grants are subject to several, but not all, provisions of the Office of Management and Budget’s “Uniform Guidance,” codified at 2 C.F.R. 200. (

C) Formula grants, such as the Byrne Program, are similarly awarded pursuant to formulas in their respective authorizing statutes. However, formula grants are subject to all provisions of the Uniform Guidance. Grants awarded under the Byrne Program are based on a formula which takes into account the applicant jurisdiction’s population and violent crime rate. See 34 U.É3.C. § 10156 (formerly 42 U.S.C. § 3755). The Attorney Generaí has limited the eligibility of applicant jurisdictions to JÁG Program funds for many years, by imposing various conditions.

In the present case, Philadelphia brings no challenge to more than fifty of these conditions, instead focusing on the three most recently imposed conditions. (See PI. Mot. Ex. 11). The Attorney General claims that the three Challenged Conditions are authorized under two statutory provisions. The first is 34 U.S.C. § 10102(a)(6), which does not appear in the same statutory subchapter as the Byrne Program. It states in relevant part: The Assistant Attorney General shall.. .exercise such other powers and functions as may be vested in the Assistant Attorney General pursuant to this

chapter or by’ delegation of the Attorney General, including placing special conditions on all grants, and determining priority purposes for formula grants. The second source of statutory authority claimed by the Attorney General does in fact appear in the same subchapter as the Byrne Program. See 34 U.S.C. § 10153. The Attorney General contends that this separate source of authority independently supports the

Section 1373 Certification Condition: To request a grant under this part, the chief executive officer of a State or unit of local government shall submit an application to the Attorney General within 120 days after the date on which funds to carry out this part are appropriated for a fiscal year, in such form as the Attorney General may require. Such application shall include the following: [•••]

(5) A certification, made in a form acceptable to the' Attorney General and executed by the chief executive officer of the applicant (or by another officer of the applicant, if qualified under regulations promulgated by the Attorney General), that— [•••] (

D) the applicant will comply with all provisions of this part and all other applicable Federal laws. 34 U.S.C. § 10153(a)(5)(D) (emphasis added). IV. The Three Challehged Conditions The Attorney General cites a' May, .2016 report from the Office of the Inspector General (“OIG”) finding deteriorating local cooperation with “efforts to remove undocumented criminal aliens from the United States,” (Compl. Ex. 10), as an important catalyst for the imposition of the Challenged Conditions.

Accordingly, in late July 2017, the Attorney General announced two new conditions on every grant provided by the JAG Program. (See Backgrounder on Grant Requirements, PI. Mot. Ex. 1). 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 (the “Notice Condition”), and, second, that local authorities provide immigration agents with access to City detention facilities and-individuals detained therein (the “Access Condition”). Id.

Additionally, a third 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 (the “Certification Condition”). Id. The three conditions are as follows:

(1) The Notice Condition 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) The Access Condition 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 access to 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 Certification Condition 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). The Certification Condition requires the City to certify compliance with 8 U.S.C. § 1373 (“Section 1373”).

Section 1373 is titled “Communication between government agencies and the Immigration and Naturalization Service” and provides as follows: (

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 Irhmigration 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. The Department of Justice (“DOJ”) asserted by letter dated October 11, 2017, a “preliminary assessment” that the City did not comply with

Section 1373. (EOF 28 (“Def. Opp.”), Ex. A to Declaration of Alan Hanson (“Hanson Decl.”)). The City responded by letter dated October 27, 2017, disputing that assessment and requesting a delay in any withholding of the FY 2017 JAG award pending resolution of this litigation. (ECF 61). V. Philadelphia’s Policies at Issue The Attorney General contends that “[a]t least two [Philadelphia] policies do not comply with

Section 1373, and at least three additional policies may also be non-compliant depending on how the City interprets and applies them.” (Def. Opp., at 38). First, Philadelphia Executive Order No. 5-16, states in

Section 1: No person in the custody of the City who otherwise would be released from custody shall be detained pursuant to an ICE civil immigration detainer request pursuant- to 8 C.F.R. § 287.7, nor shall notice of his or her pending release be provided, unless such person is being released after conviction for a first or second degree felony involving violence and the detainer is supported by a judicial warrant. (Compl. Ex. 6).

Although Executive Order No. 5-16 appears to restrict compliance with detainers and advance notice requests, a subsequent memorandum issued to the Prisons Commissioner clarified that “the Department of Prisons is directed to cooperate with all federal agencies, including ICE, when presented with a judicial warrant,” irrespective of whether “such person is being released from custody after conviction for a first or second degree felony involving violence.” (Compl. Ex. 7).

Second, Police Commissioner Memorandum No. 01-06, which has as its express goal the “preservation of] confidentiality of all information regarding law abiding immigrants to the maximum extent permitted by law,” states in

Section III.C: The Philadelphia Police Department will continue to cooperate with federal authorities in investigating and apprehending immigrants suspected of criminal activities. However, immigrants who are victims of crimes will not have their status as an immigrant transmitted in any manner. (Compl. Ex. 3). Third, Executive Order No. 8-09,

Section 2, states: B. Law enforcement officers shall not: (2) inquire about a person’s immigration status, unless the status itself is a necessary predicate of a crime the officer is investigating or unless the status is relevant to identification of a person who is suspected of committing a crime (other than mere status as an undocumented alien); (3) inquire about the immigration status of crime victims, witnesses, or others who call or approach the police seeking help; or (4) inquire regarding immigration status for the purpose of enforcing immigration laws.

C. -Law enforcement officers shall continue to cooperate with state and federal authorities in investigating and apprehending individuals who are suspected of criminal activity. (Compl. Ex. 4). Fourth, Executive Order No. 8-09,

Section 3, states: A. As used herein, “confidential information means any information obtained and maintained by a City agency relating to an individual’s immigration status. B. No City officer or employee shall disclose confidential information unless: (1) such disclosure has been authorized in writing by the 'individual to whom such information pertains ...; (2) such disclosure is required by law; or (3) the individual to whom such information pertains is suspected by such officer or employee or such officer’s or employee’s agency of engaging in criminal activity (other than mere status as an undocumented alien). (Id.). Fifth, Police Commissioner Memorandum No. 01-06,

Section III.A, states: In order to'safeguard the confidentiality of information regarding an immigrant, police personnel will transmit such information to federal immigration authorities only when:

(1) Required by law, or

(2) The immigrant requests, in writing, information be provided, to verify his or her immigration status, or '

(3) The immigrant is suspected of engaging in criminal activity, including attempts to obtain public assistance benefits through the use of fraudulent documents. (Compl. Ex. 3). VI. Prior Litigation Over “Sanctuary City” Policies The present litigation represents the latest skirmish between state or local governments and the federal government over so-called “Sanctuary City” policies. Two recent cases in particular merit discussion prior to this Court’s analysis of the current dispute between Philadelphia and the Attorney General. A. County of Santa Clara v.

Trump Less than a week after assuming office, President Trump issued ■ Executive Order 13768, entitled “Enhancing Public Safety in the Interior of the United States,” which “purported] to ‘[e]nsure that jurisdictions that fail to comply with applicable Federal law do not receive Federal; funds, except as mandated by law and to establish a procer dure whereby ‘sanctuary jurisdictions’ shall be ineligible • to receive. federal grants.” Cty. of Santa Clara v. Trump, 250 F.Supp.3d 497, 507 (N.D. Cal. 2017) (quoting 82 Fed. Reg. 8799).

Two California jurisdictions, which had policies in place prohibiting the use of resources to aid in enforcement of federal immigration law or limiting the circumstances in which they honored ICE detainers, sought to enjoin

Section 9(

a) of the Executive Order, which states: Sec. 9. Sanctuary Jurisdictions. It is' the policy of the executive branch to ensure, to the fullest extent of the law, that a State, or a political subdivision of a State, shall comply with 8 U.S.C. 1373. (

a) In furtherance of this policy, the Attorney General and -the. Secretary, in their discretion and to the extent consistent with law, shall ensure that jurisdictions that willfully refuse to comply with 8 U.S.C. 1373 (sanctuary jurisdictions) are not eligible to receive Federal grants, except as deemed necessary for law enforcement purposes by the Attorney General or the Secretary. The Secretary has the authority to designate, in his discretion and to the extent consistent with law, a jurisdiction as a sanctuary jurisdiction.

The Attorney General shall take appropriate enforcement action against any entity that violates 8 U.S.C. 1373, or which has in effect a statute, policy, or practice that prevents or hinders the enforcement of Federal law. Exec. Order No. 13768 (emphasis added). The plaintiff counties alleged that this part of the Executive Order violated the principle of Separation of Powers, violated the Spending Clause of

Article I of the Constitution, improperly conscripted them in enforcing federal immigration law in violation of the Tenth Amendment, was unéonstitutionally vague, and violated the counties’ procedural due process rights. Id. At oral argument, the United States argued that this

section of the Executive Order applied only to three grant programs administered by the Department of Homeland Security and the Department of Justice,- including the Byrne JAG Program. Id. at 507-08, 510. ■ < Rejecting this

interpretation, the court found that the Executive Order “r[anj afoul of ... basic and fundamental constitutional structures,” which it explained: The Constitution gives Congress the federal spending power and place conditions on receipt of federal funds; once legislation is enacted,- the President is “required, to ‘take Care that the Law be- faithfully executed.’ ” Id. at 531 (quoting U.S. Const, art. II, § 3, cl. 5).

The court stated that “[wjhere Congress has failed to give the President discretion in allocating funds, the President has no constitutional authority to withhold such funds and violates his obligation to faithfully execute the laws duly enacted by Congress if he does so.” Id. The court concluded:. “Section 9 purports to give the Attorney General and the Secretary the power to place a new condition on federal funds (compliance with

Section 1373) not provided for by Congress. But the President does not have the power to place conditions on federal funds and so cannot delegate this power.” Id. The court also noted that Congress had considered, and rejected, conditioning federal spending on compliance with

Section 1373' and immigration law, which placed the President’s power “at its lowest ebb.” Id. (quoting Youngstown Sheet & Tube Co. v. Sawyer, 343 U.S. 579, 637, 72 S.Ct. 863, 96 L.Ed. 1153 (1952)). Even if the President possessed spending powers, that court continued, the Executive Order would nonetheless have overstepped constitutional limitations on spending legislation. The court found that the Executive Order did not impose unambiguous conditions on jurisdictions. Id. at 532. Moreover, its attempt to defund sanctuary jurisdictions lacked the requisite relationship between the condition and the purpose of the funds because there was “no nexus between

Section 1373 and most categories of federal funding, including without limitation funding related to Medicare, Medicaid, transportation, child welfare services, immunization and vaccination programs, and emergency preparedness.” Id. at 532-33.

It did suggest some relationship between immigration enforcement and law enforcement, however: The Executive Order inverts the nexus requirement, directing the Attorney General and Secretary to cut off all federal grants to “sanctuary jurisdictions” but giving them discretion to allow “sanctuary jurisdictions” to receive grants “deemed necessary for law enforcement purposes.” ,EO § 9(a).

As the subset of grants “deemed necessary for law enforcement purposes” likely in-eludes any federal funds related to immigration enforcement, the Executive Order expressly targets for defunding grants with no nexus to immigration enforcement at all. This is the precise opposite of what the nexus test requires. Id. at 533 (emphasis added). The court also found that the plaintiffs were likely to succeed on the merits of their argument that the attempt to defund sanctuary jurisdictions amounted to an unconstitutionally coercive use of the spending power. Id.

The court further found that the Executive Order attempted to conscript states and localities into enforcing federal immigration law in violation of the Tenth Amendment, contained “standardless guidance and enforcement provisions” rendering it void for vagueness, id. at 536, and violated jurisdictions’ procedural due process rights by failing to establish any notice or opportunity to be heard regarding their potential loss of federal funding. Id. Accordingly, the court entered a nationwide preliminary injunction barring., enforcement of

Section 9(

a) on April 25, 2017. Id. at 540. It clarified that the injunction did not “impact the Government’s ability to use lawful means to enforce existing conditions of federal, grants or 8 U.S.C. 1373” or “restrict the' Secretary from developing regulations or preparing guidance on-designating a jurisdiction as a ‘sanctuary jurisdiction.’ ” Id. B. City of Chicago v. Sessions Prior to the initiation-of the Philadelphia litigation, the city of Chicago, which had enacted a “Welcoming City Ordinance” as part of its municipal code, filed suit challenging the imposition of the Challenged Conditions attached to Byrne funding.

The arguments in the Chicago litigation in many ways parallel those at issue in the Philadelphia case, and Chicago, like Philadelphia, sought preliminary injunctive relief in federal court. See City of Chicago v. Sessions, No. CV 17 C 5720, 264 F.Supp.3d 933, 2017 WL 4081821 (N.D. Ill.

Sept. 15, 2017). • On September 15, 2017, after Philadelphia had filed its Complaint, a Judge of the United States District Court for the Northern District of-Illinois ruled that the Attorney General lacked authority under the authorizing statute to impose substantive conditions on Byrne grants, 34 U.S.C. §§ 10151-58, and acted ultra vires in imposing the Notice and Access conditions.

Id, The court rejected the Attorney General’s attempt to claim authority to- impose such conditions on-the basis of .34 U.S.C. § 10102(a)(6), a provision of a separate statutory subchapter establishing the Office of Justice Programs allowing the Assistant Attorney General to ‘plac[e] special conditions on all grants’ .and to ‘determin[e] priority purposes for formula grants.’” Id. at 941, 2017 WL 4081821-at *5 (alterations in original).

However, the court ruled that a provision of the Byrne , JAG Program authorizing statute, 34 U.S.C. § 10153(a)(5)(D), requiring, certification that, an applicant. for Byrne funds “will comply with all provisions of this part and all other applicable Federal laws” gave the Attorney General the statutory authority to impose the

Section 1373 Certification Condition. Id. at 943-44, 2017 WL 4081821 at *7. The court reasoned that “[t]he most natural reading of the statute authorizes the'Attorney General to require a certification , of compliance with all other applicable federál laws, which by the plainest definition includes

Section 1373.” Id. at 945-46, 2017 WL 4081821 at *9. It specifically noted that Chicago had not challenged the Certification Condition under the' Spending Clause. In short, the court found that Chicago was likely to succeed on the merits of its challenges to the jail access and advance notification conditions, but not on the 1373 compliance provision. The City of Chicago court did not hold an evidentiary hearing in reaching its legal conclusions.

With respect to irreparable harm, the court found that “[t]he harm to the City’s relationship with the immigrant community if it should accede to the conditions is irreparable” and that “forcing the City either to decline the grant funds based on what it believes to be unconstitutional conditions or' accept them and face an irreparable harm,' is the type of ‘Hobson’s choice’ ” that the Supreme Court had found to support irreparable harm for purposes of granting injunctive relief. Id at 950-51, 2017 WL 4081821 at *13 (citing Morales v.

Trans World Airlines, Inc., 504 U.S. 374, 381, 112 S.Ct. 2031, 119 L.Ed.2d 157 (1992)). Finally, the court found the balance of the equitiés and the public interest favored neither party because both Chicago and the Attorney General had “strong public policy arguments” grounded in “concerns of public safety,” “the wisdom of which [was] not for the Court to decide.” Id. at 951, 2017 WL 4081821 at *14. Accordingly, the court entered a nationwide preliminary injunction barring the Notice and Access conditions. Id. It subsequently denied a stay of the nationwide application of the injunction. City of Chicago v.

Sessions, No. CV 17 C 5720, 2017 WL 4572208 (N.D. Ill. Oct. 13, 2017). An appeal is pending. VII. Plaintiffs Motion for Preliminary Injunction Philadelphia asserts it is likely to show that the Attorney General’s imposition of the Challenged Conditions violates the Administrative Procedure Act (“APA”) because the Attorney General: (1) acted in excess of his statutory authority as well as contrary to the authorizing federal statute; (2) violated the Constitution’s separation of powers; and (3) acted in an arbitrary and capricious manner. (See PI. Mot., at 15-16).

Philadelphia’s contentions that the Attorney General acted in excess of, and contrary to, the authorizing federal statute, rely on the statute’s text, legislative history, and implementation history, while rejecting the Attorney General’s reliance on a statutory provision that defines the “powers and functions” of the Assistant Attorney General of the Office of Justice Programs. See 34 U.S.C. § 10102(a)(6). Philadelphia’s motion also asserts that the Attorney General’s actions are in contravention of the Constitution’s Spending clause, the Tenth Amendment, and principles of Federalism.

The City also contends it is likely to show that the City’s policies are consistent with

Section 1373 as constitutionally and lawfully construed, and therefore that the Attorney General should be enjoined from denying the City funding on that basis. The City alleges irreparable harm, not only from the denial of receipt of the money, but also from a loss of goodwill in the immigrant community. Lastly, the City asserts that the public interest warrants preserving the “status quo” pending a final hearing. The standards for a preliminary injunction are set forth below. VIII. Review of Testimony and Sworn Declarations Filed by Plaintiff in Support of Motion A.

Testimony of Police Commissioner Ross Born and raised in Philadelphia, Richard Ross has been a member of the Philadelphia Police Department (“PPD”) for over 28 years, and for the past 22 months has served as Police Commissioner. In this role he is responsible for everything from hiring and termination decisions, to training, to policy implementation, to communication.

Prior to taking on the Police Commissioner position, Commissioner Ross rose through the ranks of the PPD, from working as a sergeant, to a lieutenant, working his way up to Captain of the Homicide department, before becoming the Deputy Commissioner in Internal Affairs and eventually the First Deputy Commissioner for eight years. Commissioner Ross reported that the PPD is budgeted for 6,525 police officers, and currently employs approximately 6,400, along with an- additional approximately 800 civilian employees, making it the fourth largest police department nationwide.

Commissioner Ross reported that PPD’s budget is in excess of $600 million, however between 96-98% of that budget is dedicated to personnel costs and benefits. Thus, while the $1.6 million that the City must forego if it rejects JAG funds represents a small percentage of PPD’s overall budget, it is significant to crime fighting efforts and represents 10% of non-personnel costs. Specifically, this funding would be used for overtime salaries, crime suppression, and technological updates. 1.

Philadelphia Police Priorities When asked what the most important issues are to the PPD currently, Commissioner Ross pointed to gun violence, and the development and maintenance of police-community relationships.

When asked to articulate his theory of policing, he highlighted two major themes: smart policing — that is, using intelligence to react to, and proactively anticipate crime as quickly as possible — and community policing — in the sense of viewing citizens as “partners” in crime fighting, and being intentional about developing relationships with the community in order to promote this idea of a partnership and the attendant benefits.

He emphasized the connection between these two themes, noting that it is not possible for the PPD to be omnipresent, in the sense of having a police officer on every single corner, so they must leverage community relationships to increase their capacity to detect crime.

He identified some of the ways that community members help the PPD respond to crime, for example, the PPD -receives tips from the public in response to surveillance video and photos connected to requests for information; in general, he asserted, the greatest source of intelligence used for resolving criminal investigations comes from people, not through technologically advanced techniques. He highlighted domestic violence and sexual assault as contexts in which crime can typically only be detected and addressed if victims come forward with information.

Further he described PPD’s efforts to utilize pattern information and analysis to anticipate and react quickly to neighborhood crime, for example robbery; information from victims and other community members regarding these patterns is incredibly valuable, and if community members are in fear of being deported as a result of approaching PPD they won’t come forward. This would put PPD far behind in their efforts to effectively respond to crime. 2.

Reasons for Philadelphia Police Department Policies on Immigrants Commissioner Ross discussed the likely consequences if the PPD were required to disclose the immigration status of every victim and witness with whom they came into contact. He stated that this practice would be “stifling” because community members would fear PPD. Although developing community relationships can be incredibly hard, but because it is so important to the PPD’s ability to collect information about ongoing crime, it is something to which the PPD ..has dedicates substantial resources.

Overall, Commissioner Ross emphasized that a broad policy of sharing the immigration status of non-criminal immigrants would detract from PPD’s mission, impacting not only the individuals subject to such information sharing, but also their wider communities and those of adjacent neighborhoods. Commissioner Ross reported that' as of 2016, crime in Philadelphia was at a 40-year low, which is an indicator of the progress that has been achieved through smart policing and community partnership efforts, including in immigrant communities.

He made clear that available evidence suggests no link between an individual’s status as an undocumented immigrant, and their likelihood to commit a crime; in fact, it is primarily people born and raised in Philadelphia who commit crime in the City. 3. Community Policing He indicated that the PPD engages to both department-wide and district-specific programmatic efforts to develop community relationships. Special interest groups, including some associated with various ethnic identities, are employed to build relationships with the groups they represent.

He described the PPD’s efforts, including community engagement through meetings, social - media, the Police Athletic -League, and town halls. He highlighted the difficulty, particularly in the current social cli.mate, to maintain an image of legitimacy with the community. Establishing trust, he explained, can sometimes only be achieved on a block-by-block basis. Once gained, losing the community’s trust can be almost impossible because it leaves the public with no reason to believe that the PPD is legitimate. “Trust and legitimacy go together,” he stated.

Commissioner Ross described the PPD’s interactions with the immigrant community as no different from the rest of the population, explaining that the PPD must have a strong partnership with this group just as with any other. He asserted that without them “we would be in peril.” The PPD recruits bilingual officers to order to enable communication between the police and community members who do not speak English. He' also noted the value in showing to immigrant communities that many PPD officer share their same heritage. 4.

Immigrants Have No Immunity from Arrest and Prosecution for Crimes in Philadelphia Commissioner Ross stated emphatically that he does not consider PPD to be an extension of ICE, noting multiple times that pursuing immigration enforcement would detract from- the PPD’s mission. With regard to .the term “sanctuary city,” Commissioner Ross stated that he is not clear on exactly what the- term refers to and personally does not use it. Philadelphia is a “welcoming city,” he offered.

He noted that some people might infer that the concept of a sanctuary city indicates that if an immigrant commits a crime, they won’t be arrested or prosecuted, before clarifying that this not the PPD’s policy: “we don’t harbor criminals in the Philadelphia police department.” Commissioner Ross emphasized that a suspect’s immigration status makes no difference to arrest procedures or prosecution decisions. 5.

Reasons for Police Policies Criticized by the Attorney General Commissioner Ross, explained that internal PPD memoranda represent policies to be implemented, and provide directions to guide the manner to which police officers are to conduct themselves. The method for dissemination is via submission of memos to local police districts. Officers are-generally required to sign each memo to confirm receipt. Referring to PPD Memorandum 01-06, dated May 17, 2001 and issued by then Police Commissioner Timoney, Commissioner Ross clarified that the Policy outlined in

Section II accurately reflects the current policy of PPD. With respect to

Section II, Part B, which indicátes that PPD “will preserve the confidentiality of all information regarding law abiding immigrants to the maximum extent permitted by law,” Commissioner Ross explained that the motivation behind this policy is the need for the entire population to understand that the PPD is there to protect and serve them, and that they should feel comfortable coming forward with any information to help police fight crime. He highlighted the fact that this policy protects the confidentiality only of those who are “law abiding,” and says nothing about those who are breaking the law. He emphasized the built-in exception in

Section III which clarifies that police will share with federal authorities information about any immigrant who “is suspected of engaging in criminal activity” to underscore the distinction that the PPD draws between, on the one hand, victims and witnesses, and on the other, criminal violators. Commissioner Ross explained that nothing in the policy set out in Memo 01-06 prevents PPD from cooperating with the federal government, and that -in the 16 years it has been in place the -federal government has never identified any issues with it.

Commissioner Ross also commented on Mayor Nutter’s Executive Order 8-09, signed on November 10, 2009, which sets out the City’s policy with respect to immigrants’ access to City services and sets out a general prohibition on City officials inquiring into and disclosing individuals immigrations status, subject to exceptions. He explained that this policy is important because the PPD’s mission is to safeguard the population, not to engage in immigration enforcement.

The PPD would not be able to effectively pursue its obligation to protect and serve if the City’s population is concerned about officers revealing residents’ immigration status. Sub-section 3 of Part B of

Section 3 provides an exception by which City employees may disclose information regarding an individual’s immigration status when that individual is suspected .of engaging in criminal activity, “other than’ mere status as an undocumented alien.” Commissioner Ross again highlighted this exception as establishing PPD’s position that these protections do not extend to individuals who are engaged in criminal activity, noting that PPD has no interest in withholding information about criminals from ÍCE.

Under the City’s policies, including Memorandum 01-06 and Executive Order 8-09, police officers would not be restricted from responding to an ICE request for information regarding any noncitizen who has been arrested. However they would likely not provide'address information for a former inmate who had been released and is no longer suspected of criminal activity, as this broaches on immigration enforcement and is not within PPD’s purview.

When asked about the policy with regard to . an individual who fits the description of both--a victim and a perpetrator, Commissioner Ross clarified that the PPD will make- determinations about whom to arrest and charge with crimes, and ultimately will be willing to communicate to ICE information regarding the immigration status of any individual who is actually charged with a crime. Commissioner Ross confirmed that PPD employees had been trained with respect to these policies, however

Section 1373 had not been mentioned by name in training. 6i Cooperation with Federal Law Enforcement Agencies Commissioner Ross asserted that the PPD has a good relationship with all federal agencies, and that nothing in City policy prevents PPD’s cooperation with federal agencies. He identified examples of cooperation such as the joint terrorism task force between the PPD and the FBI— which feature local and federal officials working together.

When asked about the example of a noncitizen who has not committed any state crime, but who has unlawfully returned to the U.S. after being deported in violation of federal criminal law, Commissioner Ross indicated the PPD would not be likely to encounter such a person. Generally speaking, police are not involved unless a state crime is committed.

He clarified though, that if such a person were to commit a state crime, they would 'be arrested arid charged according to normal PPD procedures, which include fingerprinting the suspect and sharing his fingerprints through a database to which ICE and other federal authorities have access. In this way, the suspect’s immigration status would be shared with ICE. B. Declaration and Testimony of Julie Wertheimer In her declaration, Ms.

Wertheimer identifies herself as Chief of Staff, Criminal Justice, in the Managing Director’s Office of Philadelphia, in which she oversees the “Office of Violence Prevention.” She also discusses Philadelphia’s unbroken history of receiving Byrne JAG grants since the program’s inception in 2005. In FY 2016, Philadelphia received $1.67 million, and a slightly lower amount in FY 2015. Ms. Wertheimer asserts that Philadelphia relies upon federal funding provided by the Byrne JAG program to support a number of priorities and programs. Ms.

Wertheimer relates that on July 25, 2017, the Department of Justice (“DOJ”) notified Philadelphia as follows: As a condition to receiving any Byrne JAG funds in fiscal year 2017, Philadelphia must comply with three conditions.

Philadelphia must: (1) certify that the City complies with 8 U.S.C. §.1373; (2) permit officials from the Department of Homeland Security (“DHS”) access to any detention facility maintained by Philadelphia in order to meet with persons of interest to DHS; and- CS) provide at least 48 hours’ advance notice to DHS regarding the scheduled release date and time of an inmate for whom DHS requests such advance notice. Ms. Wertheimer relates that the application deadline for the local FY 2017 Byrne JAG funding was September 5, 2017 and that Philadelphia submitted a timely application.

Her declaration gives further details of how Philadelphia plans to spend the JAG funds, if awarded, with further details supplied at the hearing at which she testified. She explained at the evidentiary hearing that the Byrne Program involves congres-sionally allocated and congressionally appropriated formula grant funds based on population and crime rate. Ms. Wertheimer also distinguished between, on the one hand, competitive grants and, on the other hand, formula grants, which do not require the City to compete to acquire the grant funds.

In her experience, the City has never failed to receive formula grant funds for which it applied. In fact, Ms. Wer-theimer recalled that on one occasion, due to a typographical error, the city accidentally applied for less money than the formula authorized. She received a telephone call from an officer at the DOJ informing her that Philadelphia would need- to remedy the error because the City was required to receive the full amount for which it was eligible under the terms of the Byrne statute. Ms. Wertheimer also provided an explanation of the City’s budgeting process.

Because the City’s fiscal-year runs from July 1 to June 30, the Mayor typically submits a proposed budget around February of each year. City Council then holds hearings and votes on the budget in May or June. If additional resource needs arise thereafter, city officials must generally wait until the following fiscal year to seek those funds. She further explained that Byrne Program grants are awarded early in the City’s fiscal year, which typically enables the City to acquire additional funds for criminal justice programs that do not appear in that year’s fiscal year budget.

In order to decide which criminal justice programs Philadelphia will seek funding for, a sub-committee of the County’s Criminal Justice Advisory Board meets and decides which programs should be prioritized based on urgency and need. In FY 2016, the opioid crisis was one such urgent need. Ms. Wertheimer also testified that the City has applied and been awarded funding under the Byrne Program every year since 2005, without controversy.

In no pri- or year were any conditions added such as those in FY 2017, in which DOJ asked for a legal opinion from Philadelphia’s City Solicitor and signatures on the grant application from the Solicitor and Mayor. Importantly, she testified that Byrne grants are not in the City’s general fund budget. Instead, the Byrne funds are located in the unanticipated funds budget, which signifies that if the grant is not awarded, the projects for which those funds were allocated will not occur.

She emphasized that no funding will be diverted from other sources to pay for- what would otherwise have been several projects funded by the Byrne grant, including naloxone supply for officers to -use in case of civilian opioid overdose, overtime pay for officers, and case management software used to deliver the City’s limited resources efficiently. C. Declaration and Testimony of Eva Gladstein Plaintiff also submitted a declaration of Eva Gladstein, who is Deputy Managing Director of Health and Human Services in the Office of Managing Director.

After detailing her personal and professional experience, she detailed the City policies and practices regarding what she refers to the “immigrant community,” specifically that the City refrains from asking for immigration status information to determine benefits eligibility. Ms.

Gladstein defends this practice and details the number of individuals and children, totaling over 114,000, who have received mental health services through City-funded programs, almost 33,-000 individuals who have sought substance abuse treatment through City funded programs, and over 6,000 children who have benefitted from early intervention services by the City. Ms. Gladstein estimates the immigrant community to include approximately 200,-000 people, or 13% of the overall population.

However, because the City does not collect data or statistics regarding immigration status of residents accessing City services, her estimates are not firm numbers. Ms. Gladstein states as follows: If the City were required to collect immigrant status information as a requisite to providing services, that would have a significant impact on the [immigrant] community’s willingness to access these services, and I would expect a significant drop in these numbers, which would put all Philadelphians at risk.

Eva Gladstein also testified at the evi-dentiary hearing that all five of the agencies she supervises comply with Executive Order 08-09 (“The Confidentiality Order”), She further testified that Philadelphia residents can use the City’s services without regard to immigration status. In fact, the agencies that Ms. Gladstein oversees specifically perform outreach to immigrant communities, often using the City’s language. and cultural capacities to do so.

Because some of these services are stigmatized — e.g,, substance abuse, treatment services — the City has sought to remove as many' “obstacles” as possible to ensure that immigrants, like other Philadelphia residents, are able to usé the City’s services. For example, Ms. Gladstein explained that the Department of Human ‘Services operates a hotline which receives reports of suspected abuse and neglect of children. These reports generally lead to investigations by the Department, which seeks to detérmine if the complaint is founded.

These investigations typically rely on some measure of cooperation from the child’s neighbors, friends, and family. Ms. Glad-stein testified that, without the Confidentiality Order in place, Philadelphia would not receive the same level of cooperation needed to ensure the safety of Philadelphia’s children. Ms. Gladstein also gave examples of other city services under her supervision that would be compromised in the immigrant community if the City’s Confidentiality Order were not in effect, such as emergency shelters, transitional housing, the domestic violence hotline, and domestic violence shelters. Ms.

Gladstein credibly testified that immigrants would be less likely to use the City’s services if they feared that their immigration status would be readily revealed to ICE. D. Declaration and Testimony of Brian Abernathy Plaintiff filed the declaration of Brian Abernathy, who as First Deputy Managing Director supervises the Police and Fire and Emergency Management Departments. In addition to providing details about his personal and professional background, Mr. Abernathy summarizes the structure and organization of the Police and Fire Departments.

He also details pri- or and existing mayoral orders, which do not require that immigrants disclose their immigrant status in dealing with the agencies that he oversees, specifically Philadelphia’s six prison facilities, and the Police Department. Mr. Abernathy details in May - 2017 a new “consent form” provided by the City to inmates that gives an inmate the right to speak with a federal immigration official or to decline to do so.

His reasons for this policy were set forth as follows: It is the expectation that such a policy will further encourage trust by the immigrant community and foster cooperation with law enforcement, without any fears of deportation looming above. The consent-based policy also ensures the orderly administration of Philadelphia’s prisons, by avoiding the unnecessary expenditure of time and resources that sometimes would be incurred when inmates are delivered to ICE only to then exercise their constitutional rights to remain silent or have counsel present.

Mr., Abernathy then details the City’s responses to detainer notification requests by ICE and justifies them as follows: The City’s law enforcement protocols, its notification policy, and its consent-based jail access provisions, have led its immigration population to trust Philadelphia’s police officers and prosecutors, to believe that, reporting a. crime or participating as a witness in a trial will not results in that individual or his family being turned over to ICE, and to view Philadelphia’s law enforcement personnel not as extensions of ICE or as -immigration enforcement agents, but as persons whose primary job is to keep their families and communities safe ' from crime.

If City officials, including-Philadelphia police officers, were required to affirmatively collect immigration. information, this long built trust with the immigrant community would be broken, compromising public safety and pushing a significant segment -of Philadelphia’s community into the shadows. Simply put, we would expect crime reporting and witness participation in criminal proceedings to drop and use of healthcare, education, and other services among segments of the immigration population to be reduced.

Abernathy oversees the day-to-day operations of the City, including public safety departments like police, fire, and emergency management, and is responsible for establishing broad policy in fields-such as opioid response, immigrant affairs, and homelessness. Through his work, he interacts with Blanche Carney, Commissioner of the Philadelphia Department of Prisons. He also testified to enjoying a “professional, cooperative relationship” with ICE— although they “h[ad their] disagreements” — and referenced a recent meeting at which he explained City policy regarding immigrants to ICE officials.

Abernathy testified that as of Friday, October 20, 2017, Philadelphia’s six prisons held some 6,833 inmates, of whom 79% are being held pre-trial, and 17% have been sentenced. Another 2% have been convicted but not sentenced, and a further 2% are in some other form of temporary custody. Abernathy several times reiterated that only 17%. of inmates in Philadelphia prisons; who are ..all serving sentences, of 23 months or less, have scheduled release dates.

City law enforcement employ several case management databases, among them the Preliminary Arraignment Reporting System (PARS), the Automated Fingerprint Information System (AFIS), and the National Crime Information Center (NCIC). Suspects booked by Philadelphia police are -fingerprinted. The fingerprints are uploaded into a state system, which interfaces with federal information, and shared with law enforcement across the country, including ICE.

PARS,'which is co-owned by the City, the First Judicial District, and the District Attorney, is an information-sharing system for real-time case updates; although PARS does not contain immigration' status information, ICE has had access for “a number of years.” A memorandum of understanding with ICE limits access to victim and witness information, however. Abernathy testified to reading on the ICE website that most ICE detainers were generated from biometric data provided by local law enforcement.

Abernathy stated that the City often receives requests for an inmate to be detained at the behest of another jurisdiction or agency. Sometimes these are criminal warrants signed by a judge, such as if an inmate were facing charges in another jurisdiction. In other instances, the City receives civil, administrative detainers from ICE,.which are typically signed by an ICE agent. Between December, 2015 and October. 20, 2017, the City received 140 ICE detainer requests. Of these 140 detainers, only four were accompanied by a judicial warrant; all four of these individuals are still in custody.

When an immigration de-tainer request is received, it is placed in the inmate’s file and marked within the prison computer system, which also codes whether the detainer is accompanied by a judicial warrant. Abernathy had heard of only one example of an immigration de-tainer being sent to local police, which made sense, he said, because police hold an individual only briefly. Abernathy was familiar with City policies regarding immigration status collection and immigration detainers.

He stated that Executive Order 8-09 did not prohibit employees from asking about status information, and did not forbid employees from contacting ICE to inquire about an individual’s immigration status, although he did not know why anyone would do this. He repeatedly stressed this importance of respecting court orders and warrants, and described issuing a memorandum to Prisons Commissioner Blanche Carney on March 22, 2017 (ECF 1-7) clarifying Executive Order 5-16. That memorandum ordered City prisons to honor all judicial warrants.

Pursuant to Executive Order 5-16 and the clarifying memorandum, the City does not hold individuals based on civil ICE detainers alone. The operative question is always whether a judicial warrant was received. He clarified that the City does not honor immigration detainers signed by an immigration judge unaccompanied by a criminal warrant.

When posed with various hypotheticals regarding whether City policies prevented employees from sharing an individual’s status in custody or identifying information, Abernathy frequently seemed puzzled — why was asking City employees necessary when the information was already available to ICE through shared databases? He added that City policies allowed employees to share with ICE an individual’s location, but not that individual’s release date, unless the request for release date was accompanied by a judicial warrant.

Providing advance notice of a release date for an unsentenced inmate would also pose administrative burdens and practical problems, Abernathy explained, because inmates are often released directly from court or on short notice pursuant to a court order. This spring, Abernathy began hearing reports that ICE had been contacting individual prison wardens in order to interview inmates. In response, the City began sending consent forms to inmates that informed them of their right to decline an ICE interview.

The policy was a compromise between advocates, who wanted the City to prohibit all ICE access to prisons, and federal immigration authorities. The City has consent forms only for ICE, Abernathy said, because only ICE is investigating civil matters. Since the consent form was implemented, ICE has sought to interview three people, two of whom declined interviews, and the last of whom agreed to be interviewed only in the presence of a lawyer, at which point ICE can-celled the interview. Abernathy also oversees the Office of Criminal Justice, which prepares the City’s application for Byrne JAG grants.

The City is planning to use the Byrne grant to pay overtime for officers, fund police officer training regarding use of force, and buy Narcan (also known as Naloxone), a drug that counteracts opioid overdoses, for Philadelphia police officers to administer. Abernathy emphasized the life-saving potential of these programs: the use-of-force training was implemented at the behest of Police Commissioner Ross to cut down on officer-involved shootings, which are now at record lows.

And more Narcan doses means more lives saved: Although officers carrying Narcan had made over 800 “saves” this year, Philadelphia suffered 900 deaths from opioid overdoses in 2016, some three times the number of homicides, and is anticipating approximately 1200 deaths this year. Without JAG funds, these programs “would not move forward.” E. Testimony of Thomas Farley Philadelphia City Health Commissioner Dr. Thomas Farley, MD/MPH, testified that his role as City Health Commissioner requires him to look after the health of all of the City’s 1.56 million residents, some 200,000 of whom are foreign-born.

The Department of Public Health employs approximately 1,200 employees under Dr. Farley’s supervision, and oversees aspects of preventive -health interventions as diverse as curbing the spread of communicable diseases like HIV, sexually transmitted diseases, and tuberculosis; promoting immunizations; encouraging Philadelphia residents to quit smoking; and inspecting restaurants. The Department of Public Health operates numerous public clinics throughout the city, offering primary care services to some 80,000 individuals per year — without regard to immigration status. Dr.

Farley testified that cultivating trust with immigrant communities is paramount to the work of the Department of Public Health. Many of those seeking treatment from City clinics are immigrants, and the Department employs some 120 bilingual staff, as well as 19 full- or part-time translators. Dr. Farley believes that it is important to the overall health of the City for immigrants to seek preventive services such as vaccinations without fear of immigration consequences.

Public health is served when individuals freely seek preventive care and do not stave off care until they need emergency room treatment in the midst of a health crisis. Dealing with tuberculosis among immigrant communities has proven particularly delicate. Two-thirds of the 75 people with active tuberculosis in Philadelphia are immigrants. Investigating tuberculosis transmission requires Department employees to enter individuals’ homes; treatment protocols require Department employees to watch patients taking their medicine.

Destroying this trust would have negative public health consequences for controlling the spread of this disease. Dr. Farley stressed that he cooperates with federal public health agencies, including the Center for Disease Control. The Department, he testified, does not receive Byrne JAG funds. IX. Review of Sworn Declarations Filed by Defendant in Opposition to Motion The declaration of the Acting Assistant Attorney General, Alvin Hanson, sets forth the basic facts of the Byrne AG program and are not disputed.

The Jim Brown declaration (ECF 28-2), submitted by defendant, sets forth his position as Deputy Assistant Director of Enforcement of ICE, and several reasons why ICE desires to have immigrant status information provided by state and local governments. The City objected to part of the Brown declaration and the defendant declined the opportunity to present him for live testimony and cross-examination. Therefore, the Court gives low weight to his declaration. Specifically, Mr.

Brown does not at all address the various sources of computer-based information through which ICE, like the City, has access to immigrant status information, and those who deserve the status of - “criminal aliens” — as to whom Philadelphia policies do not preclude removal. Nor dobs he discuss specific Philadelphia policies providing exceptions for persons convicted of felony crimes, or for whom there is a judicial warrant. X.

Findings of Fact Based on the facts presented by ■ the various declarations summarized above, and the testimony received at the hearing on October 26, 2017, the Court-makes the following findings of fact: 1. , All of the -witnesses called by the City to-testify are credible and the Court will give significant weight to their testimony, which is based on their personal knowledge as City officials and/or employees. . 2. The Attorney General’s phrase for certain cities, including Philadelphia, is “Sanctuary Cities” — which this Court rejects as a misnomer.

Philadelphia is not . a sanctuary for anyone involved in criminal conduct, nor is it a sanctuary as to any law enforcement investigation, prosecution, or imprisonment after having been found guilty of a crime. The Court does not'need a label for Philadelphia’s policies. 3. The City has a comprehensive criminal justice system reflecting the broad continuum that must deal with crime in a large urban setting, ranging from minor offenses for which there is usually very little or no jail time upon conviction, but also dealing with recidivist and violent criminals who' deserve and receive lengthy prison sentences.

This City policy extends through many City agencies, including the police department, responsible for law enforcement, through the District Attorney’s Office, and its investigation and prosecution function, through the Defender Association and various-private attorneys who defend individuals accused of crime, the court system and-the prison system which is responsible for custodial maintenance of those sentenced to prison.

This continuum includes . the probation department and other social service agencies which provide useful services to individuals who may be awaiting trial, or have served any sentence but are still under court supervision, and are re-entering society. 4. The conditions that the Attorney General has placed on receipt of Byrne JAG -grants- have no relationship to successful police practice or the enforcement of criminal laws in; the City.

Arrest- and prosecution of non-citizens who have committed crimes, is an important part of law enforcement, However, disclosing their immigration status to ICE-has nothing to do with law enforcement, and will not prevent crime. The City has.adopted policies designed to improve re-entry, to encourage non-criminal behavior by individuals who were previously convicted of. a crime, whether citizens or aliens-, and to preserve public health. 6. The City’s reasons for this were well explained during the testimony, particularly by Police Commissioner Ross, Deputy Managing Director Abernathy, and Dr. Farley.

Their reasons express valid principles of public health, of undue burden-someness of administrative adherence to the ICE requests, and the reasonable and fact-based belief that giving ICE 48 hours’ notice of release of an immigrant would endanger public safety, and also endanger public health. The reasons for this are set forth in the testimony and include ■ the concept of rehabilitation once an’individual leaves a prison setting, the need for individuals to have jobs so they can support themselves and their families, and to educate their children, without fear of deportation. 6.

Nonetheless, the City has a firm policy that it will honor judicial warrants and, as various witnesses pointed out, ICE as a federal law enforcement agency has access to the same national databases as any other law enforcement agency, from which ICE can secure information about where an individual subject to removal/deportation, has recorded his or her last known address and other important facts such as medications, continuing of medication for certain diseases, etc. 7.

The 48 hour Notice requirement, if strictly enforced, would impose substantial administrative burdens by City personnel, and may require hiring additional employees, at a significant but unnecessary cost. The testimony established only 17% of the occupants of Philadelphia City prisons are sentenced and have a “release date.” 8. In-the prison setting, the recent requirement of providing 48 hours’ advance notice would not only create administrative burdens, but would be basically impossible to administer, even with extra personnel.

As noted above, only 17% of the inmates in Philadelphia City prisons have actually been sentenced, and would have a release date. As to an inmate who has not been tried, or has been convicted but not been sentenced, or has been. sentenced . to a term of 24 months or more (and thus will be transported to a state,institution), compliance with the 48 hour notice is impossible. .The City has no way of knowing the release date of individuals who were in that prison without the specific sentence having been imposed by a judge. 9.

The City’s policy of respecting judicial warrants serves a valid purpose and will enable ICE to fully perform its immigration and law enforcement functions. As noted at the hearing, City law enforcement officials, as well as ICE, have access to national databases that indicate the name, any aliases, and addresses, past, present and future, of individuals, whether citizens or aliens. Thus, ICE really has no need for the City to designate individuals who are subject to a specific release date. .10.

As to the request for interviews, once again ICE has access to information of criminal aliens who are subject to deportation and can. check that database information against the listing of inmates in the Philadelphia prison system, which is periodically reviewed and updated. 11.As Commissioner Ross testified, both citizens and non-citizens who happen to be in prison are anxious to get . out of prison. Most of them want to resume a normal life with a paying job and a constructive family life.

The Court finds that if the City were to succumb to the DOJ conditions at issue here, that there would be a marked decrease in the provision of City services to aliens, whether criminal or otherwise, but not presently in prison, and the.overall security and safety of many neighborhoods and communities would suffer. 12. There is no evidence in the record whatsoever that non-citizens in Philadelphia commit any more crimes than the citizens. In fact, Commissioner Ross testified that Philadelphia born and bred residents are much more responsible for crime in the . City of Philadelphia than aliens. 13. Dr.

Parley, Health Commissioner, corroborated this testimony and gave specific examples of how designating and publicizing immigration status ■ information, of non-citizen residents would be counterproductive to public health.

As one example, there are-a number of communicable and infectious diseases prevalent in a large city as Philadelphia at various times, and if infected non-citizens had to disclose their immigrant status and their addresses to City agencies, with later disclosure to ICE, they would likely not accept any kind of care where they would have to disclose their non-citizenship status, and thus, there would be a significant exposure of City residents- to these diseases.

These individuals currently do not have to disclose their non-citizenship status, but if they were required to do so, this would cause spread of an infectious disease much to the detriment

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