Pasadena Court Hears Dispute Over Tying Federal Grants to Cooperation with Immigration Authorities

Published : Friday, April 12, 2019 | 4:43 AM

The U.S. Court of Appeals for the Ninth Circuit in Pasadena heard oral arguments April 10 in a case weighing whether the federal government can make cooperation with immigration authorities a precondition to grant funding.

Neema Sahni, an attorney with the firm of Covington and Burling, represented plaintiff City of Los Angeles and its police department. Deputy U.S. Attorney Jesse Panuccio argued for defendant U.S. Department of Justice (DOJ).

In April 2017, the U.S. District Court for the Central District of California granted L.A.’s request for injunction against the imposition of immigration-related requirements on applications for what is known as the Community Oriented Policing (COPS) Hiring Program (CHP) grant.

The DOJ appealed and, on Wednesday, argued its case before U.S. Circuit Court judges Sandra Ikuta, Jay Bybee and Kim McLane Wardlaw.

Now comes the waiting, for the decision.

Congress created the grant program to support local governments in hiring officers for deployment in community-oriented policing. DOJ administers the grant through the COPS office which, in turn, administers the COPS Hiring Program grant.

There is a scoring system to the application and in 2017, the COPS office added a new benchmark to that system which said that applicants partnering with the federal government on illegal immigration would be given “additional consideration.”

To qualify for the additional points on their application score, police departments were sent a “Certification of Illegal Immigration Cooperation” form to sign.

The “certification” granted federal immigration authorities access to detainees, under local jurisdictions, for questioning at detention facilities, and a minimum of 48 hours notice before releasing those detainees.

According to the U.S. District Court, 80 percent of successful applicants signed the certification.

In the case at hand, Los Angeles, which had twice received a CHP grant, applied anew in 2017.

It was denied. Los Angeles then filed suit to enjoin the DOJ from imposing the additional considerations in future grant cycles.

In April of 2018, U.S. District Court Judge Manuel Real ruled in plaintiff’s favor.

His ruling stated that, “community policing is distinct from other types of policing because of the means used to achieve these end goals, namely partnership between police and communities [judge’s emphasis].”

Encouraging partnerships between local police and federal immigration authorities was going someplace Congress did not contemplate. “Congress mandated that CHP grants must be used for community policing, not policing generally,” Real ruled.

Plaintiff argued that the “challenged” considerations, as the court referred to them, violate the Spending Clause which says, “If Congress desires to condition the participant’s receipt of federal funds, it must do so unambiguously, enabling the participant to exercise its choice knowingly, cognizant of its participation.”

In the instant case, the court said, “Congress did not unambiguously condition receipt of CHP grants on local compliance with federal authorities.”

The judge also agreed that the challenged considerations violated the federal Administrative Procedures Act, because they are “arbitrary and capricious.”

On this question the court said that the DOJ’s explanation that the cooperation of cities and states with the federal government can increase safety and end violent crime by illegal immigration, is not backed by any evidence.

The City of Pasadena is not a party to the case. The Pasadena Police Department has never applied for a COPS CHP grant, according to spokesman Lieutenant Jason Clawson.

There are other fronts, however, on which the immigration battle is being waged.

The year 2017, when President Donald Trump was sworn in and began his efforts to overhaul of U.S. immigration policy, represented something of a crucible for the City.

In February 2017, City Manager Steve Mermell voided a memorandum of understanding (MOU) between the Pasadena Police Department and U.S. Immigration and Customs Enforcement (ICE) saying he had not signed off on it before then-Police Chief Phillip Sanchez accepted the agreement.

As time passed, it seemed clear Mermell never would sign off on the agreement, which outlined police department participation in ICE operations and how it would be reimbursed for costs accrued during such operations.

Lt. Clawson said there has been no such MOU signed between the Pasadena Police Department and ICE since.

In March 2017, the City Council approved a resolution calling for Pasadena to strengthen its protection of immigrants.

The measure contained, among other things, steps that city employees might take to protect immigrants such as maintaining their immigration status a secret and not asking for the help of local police with enforcement of immigration laws.

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