A test of the city’s commitment to sanctuary for undocumented immigrants may be at hand. And the sheriff’s voluntary cooperation with ICE detainers, which now defines the county’s position on sanctuary, may become a subject for debate.
The test of the community’s stand on sanctuary came from U.S. Attorney General Jeff Sessions when in July he attached new conditions to a public safety grant from the U.S. Dept. of Justice.
The conditions required that recipients of a 2017 Byrne Memorial Justice Administration Grant agree to allow Immigration and Customs Enforcement agents into local jails to interview suspected aliens and to notify ICE 48 hours before releasing aliens so agents could take them into federal custody.
The city and county filed a joint application for a $302,000 Byrne JAG grant before the Sept. 5 deadline. The grant would fund the city’s costs of police overtime and a sexual assault advocate and the county’s costs of an “adjudication” program run by the Municipal Court.
According to the grant instructions, the city, as the lead agency, will be notified of grant awards by Sept. 30, but the new conditions would not go into effect until October or later, when and if the city submitted the necessary documents to accept the award.
On Sept. 7, City Manager Harry Black requested authority to accept the grant award. Black’s memo and proposed ordinance failed to mention the new strings that DOJ had attached to the grant award, despite the city’s resolution declaring it to be a sanctuary city.
The Hamilton County Sheriff’s Office declined to comment about the grant conditions, noting only that it “is not part of this grant,” according to spokesman Jim Knapp.
“Ultimately, it’s a county decision,” says Cincinnati Mayor John Cranley. “We don’t run a jail. The conditions don’t apply to the city.”
The manager took his request off the table at the Sept. 13 City Council meeting, Cranley says, in order to discuss the conditions with the county.
“We’re not sure how much the county is aware of all this,” says Cranley.
Meanwhile, the new grant conditions were the subject of widely publicized lawsuits filed by Chicago, Philadelphia, and San Francisco. The lawsuits claimed the conditions penalized sanctuary cities, undermined local control and public safety priorities, and violated the U.S. Constitution.
On Sept. 15, a federal judge found in the case of Chicago v. Sessions that AG Sessions had exceeded his constitutional authority when he imposed grant conditions that had not been authorized by congress. The judge issued a nationwide restraining order prohibiting DOJ from imposing the new grant conditions.
But on Sep. 26, the DOJ appealed the order saying that the jail access and advance notice conditions are lawful and that a nationwide application of the injunction is improper.
If the court limited the effect of the injunction to just the City of Chicago, as DOJ is requesting, then the agency says, “applicants who do not contest the conditions would be free to accept the award and receive funds immediately. Those applicants who do contest the conditions would be free either to await resolution in this case or seek relief themselves.”
Even before DOJ’s appeal of the nationwide injunction, the city and county appeared to be moving cautiously. They are discussing the impact of the enjoined conditions, before deciding whether to accept the grant, according to Rocky Merz, communications director for the city.
It is understandable that the city and the county might be cautious, says Christopher Lasch, associate professor of law at the University of Denver Sturm College of Law.
It is part of President Trump’s political agenda to introduce legal risk and potential costs into local decisions about sanctuary policies, especially policies about detainers, he says.
A detainer is a request from ICE to hold a foreign born person in jail, who is otherwise entitled to release, so ICE can take the person into federal custody. It is the practice of the Hamilton County Sheriff’s Office to honor detainer requests from ICE.
Jurisdictions with sanctuary policies are said to be defying federal law and putting the safety of American citizens at risk, according to President Trump and AG Sessions.
The President’s Jan. 25 Executive Order, Enhancing Public Safety in the Interior of the United States, says: “Sanctuary jurisdictions across the United States willfully violate Federal law in an attempt to shield aliens from removal from the United States. These jurisdictions have caused immeasurable harm to the American people and to the very fabric of our Republic.”
Section 9(a) of the Executive Order tried to make sanctuary jurisdictions, as defined by the Attorney General, ineligible for federal grants, but on April 25 a federal judge ordered a nationwide preliminary injunction against Section 9(a) in the case of Santa Clara v. Trump.
In the July 25 DOJ press release announcing the new conditions for the Byrne JAG grants, AG Sessions was quoted: “So-called ‘sanctuary’ policies make all of us less safe because they intentionally undermine our laws and protect illegal aliens who have committed crimes.”
Like Section 9(a) of the Executive Order, a federal judge also enjoined the Byrne JAG grant conditions based on the same legal reasoning. But the DOJ is now challenging this nationwide injunction.
According to Lasch, “Despite the clarity of the law–on both the question of detainer compliance and the question of federal funding conditions–the administration is hellbent on trying to inject ambiguity into this area of the law that is in fact quite clear.”
By Mike Brown, firstname.lastname@example.org