City of Albuquerque v. Barr

515 F.Supp.3d 1163

CITY OF ALBUQUERQUE, Plaintiff,

v.William P. BARR, In his official capacity as Attorney General of the United States, and the United States Department of Justice, Defendants.

Civ. No. 20-371 KG/KK

United States District Court, D. New Mexico.

Filed January 28, 2021

Adam Leuschel, Alice T. Lorenz, Lorenz Law, Esteban Angel Aguilar, Jr, Lindsay Fay Van Meter, City of Albuquerque, Albuquerque, NM, for Plaintiff.

Joseph DeMott, USDOJ, Washington, DC, for Defendants.

MEMORANDUM OPINION AND PRELIMINARY INJUNCTION ORDER

KENNETH J. GONZALES, UNITED STATES DISTRICT JUDGE

This is an administrative agency review case involving Defendants’ award of an FY 2018 Crime Gun Intelligence Center Integration Initiative (CGIC) grant to Plaintiff, an immigrant friendly city, under the Edward Byrne Memorial Justice Assistance Grant (Byrne JAG) Program. Plaintiff complains that Defendants unlawfully imposed three conditions on the FY 2018 CGIC grant award related to the enforcement of immigration laws. See Verified Petition for Injunctive Relief, Declaratory Relief, and a Writ of Mandamus (Petition) (Doc. 1), filed April 22, 2020. The Court notes subject matter jurisdiction under 28 U.S.C. § 1331, 28 U.S.C. § 2201(a), 28 U.S.C. § 1361, and 5 U.S.C. § 702.

On July 10, 2020, Plaintiff filed the instant "Plaintiff City of Albuquerque's Motion for Preliminary Injunction and Brief in Support" (Motion for Preliminary Injunction). (Doc. 13). The Motion for Preliminary Injunction now is fully and timely briefed. See (Docs. 16, 25, 28, and 29). Having considered the briefing, the controlling law, and for the following reasons, the Court grants the Motion for Preliminary Injunction.

I. Background

A. Plaintiff's Status as an Immigrant Friendly City

In 2018, Plaintiff reaffirmed its status as an "Immigrant Friendly City," and resolved, inter alia , that neither it nor "any third party on its behalf" shall inquire "or collect in any way information regarding, the citizenship, immigration status, place of birth, religion, or national origin, of any person," unless necessary under certain exceptions. (Doc. 1-4) at 6-7. Plaintiff also resolved not to disclose any of the above information it possesses absent a "valid judicial warrant ... or as otherwise required by law." Id. at 7. Plaintiff further resolved not to use its resources or to permit its facilities to enforce federal immigration laws, for example, by detaining persons based on their immigration status or on a belief that the persons violated an immigration law, or by honoring immigration detainers or federal administrative warrants "based solely on a violation of federal immigration law...." Id. In addition, Plaintiff resolved to refuse access to non-public areas of its property by "federal immigration agents who are requesting access for the purpose of enforcing federal immigration law unless presented with a judicial warrant issued specifically requiring such access." Id.

Some of the reasons for these resolutions include Plaintiff's understanding that "enforcement of federal civil immigration laws" by local governments "undermine[s] community policing, hinder[s] a productive and trusting relationship with the immigrant community, and divert[s] important public safety resources...." Id. at 3. More specifically, Plaintiff "wishes to encourage immigrants to report crime and speak to the police without fear of being arrested or reported to the United States Immigration and Customs Enforcement agency...." Id. at 5.

B. The Byrne JAG Program

Under the Byrne JAG Program, the Attorney General may make grants to local governments "to provide additional personnel, equipment, supplies, contractual support, training, technical assistance, and information systems for criminal justice, including for any one or more of" eight law enforcement related programs.¹ 34 U.S.C. § 10152(a)(1). The Byrne JAG Program works "to give State and local governments more flexibility to spend money for programs that work for them rather than to impose a ‘one size fits all’ solution." H.R. Rep. No. 109-233, at 89 (2005), reprinted in 2005 U.S.C.C.A.N. 1636, 1640.

The Byrne JAG Program authorizes two types of grants. The first type of grant is formula based. See 34 U.S.C. §§ 10152(a)(1) and 10156. The second type of grant is a discretionary grant originating from reserved funds "for 1 or more of the purposes specified" above, which the Attorney General has determined "is necessary—(1) to combat, address, or otherwise respond to precipitous or extraordinary increases in crime, or in a type or types of crime...." See 34 U.S.C. §§ 10157(b)(1). The FY 2018 CGIC grant at issue comes from the Byrne JAG Program's reserved funds. See (Doc. 1-8) at 5.

To apply for any grant under the Byrne JAG program, the chief executive officer of a city must submit an application to the Attorney General. 34 U.S.C. § 10153(A). That application must contain a certification that "the applicant will comply with all provisions of this part and all other applicable Federal laws." 34 U.S.C. § 10153(A)(5)(D). Furthermore, the Assistant Attorney General for the Office of Justice Programs (OJP) has the power to "plac[e] special conditions on all grants...." 34 U.S.C. § 10102(a)(6). Significantly, this power to place special conditions is the last of the Assistant Attorney General's enumerated powers. Also, of note,

[n]othing in this chapter or any other Act shall be construed to authorize any department, agency, officer, or employee of the United States to exercise any direction, supervision, or control over any police force or any other criminal justice agency of any State or any political subdivision thereof.

34 U.S.C. § 10228(a).

C. The FY 2018 CGIC Grant

According to the Department of Justice (DOJ), the purpose of the FY 2018 CGIC grant "is to encourage local jurisdictions to work with their [Alcohol, Tobacco, and Firearms] partners to utilize intelligence, technology, and community engagement to swiftly identify firearms used unlawfully and their sources, and effectively prosecute perpetrators engaged in violent crime." (Doc. 1-5) at 4. "Awardees will work with ATF to implement CGIC business practices that include interagency collaboration focused on the immediate collection, management, and analysis of crime gun evidence such as shell casings and test fires of unlawfully used firearms recovered in real time to identify criminal shooters, disrupt criminal activity, and prevent future violence." Id. at 5 (bolding omitted). The FY 2018 CGIC grant announcement does not mention federal immigration laws. Plaintiff applied for the FY 2018 CGIC grant in May 2018. See (Doc. 1) at ¶ 42.

In August 2018 the OJP instructed its "authorized representative or point of contact" to alert FY 2018 CGIC grant applicants that DOJ planned to include additional requirements in the FY 2018 CGIC grant award documents. (Doc. 10-9) at 11. An "[o]verview of the additional requirements" stated that with regard to the funded "program or activity" the award recipient will

be required not to engage in conduct that would violate the provisions of 8 U.S.C. §§ 1373 and 1644 (both of which deal with communications with the U.S. Department of Homeland Security of information regarding the citizenship and/or immigration status of individuals), and also not to engage in conduct that violates (or engage in conduct that aids or abets a violation of) 8 U.S.C. § 1324(a) (which, among other things, sets federal penalties for concealing, harboring, or shielding from detection certain aliens under certain circumstances).

Id.

Section 1373 provides:

(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.

Section 1644, similar to Section 1373, states:

Notwithstanding any other provision of Federal, State, or local law, no State or local government entity may be prohibited, or in any way restricted, from sending to or receiving from the Immigration and Naturalization Service information regarding the immigration status, lawful or unlawful, of an alien in the United States.

Section 1324(a)(1)(A)(iii) and (v) make it a crime to knowingly "or in reckless disregard" either "conceal, harbor, or shield from detection" an illegal alien; conspire to do so; or to aid or abet in the commission of the above acts.

In a letter dated October 1, 2018, DOJ notified Plaintiff that it approved the application for the FY 2018 CGIC grant in the amount of $452,108. (Doc. 1-8) at 1. The letter included a separate grant award and Special Conditions document. Id. The letter further noted: "Should you not adhere to these requirements, you will be in violation of the terms of this agreement and the award will be subject to termination for cause or other administrative action as appropriate." Id. The enclosed grant award also specified that approval of the grant project is subject to the special conditions attached to the grant award. Id. at 5.

At issue here are Special Conditions 49, 50, and 51. Special Condition 49 states that with respect to a "program or activity" funded under the grant Plaintiff may...