Create an Alert for This Case on RECAP ACCO,(JCx),APPEAL,CLOSED,DISCOVERY
UNITED STATES DISTRICT COURT CENTRAL DISTRICT OF CALIFORNIA (Western Division - Los Angeles)
CIVIL DOCKET FOR CASE #: 2:17-cv-07215-JLS-JC

City of Los Angeles v. Jefferson B. Sessions III et al Assigned to: Judge Josephine L. Staton Referred to: Magistrate Judge Jacqueline Chooljian Related Case: 2:18-cv-07347-JLS-JC Case in other court: 9th CCA, 18-55599
Ninth CCA, 18-56292 9th CCA, 20-55545 Cause: 28:2201 Declaratory Judgment

Date Filed: 09/29/2017 Date Terminated: 03/20/2020 Jury Demand: None Nature of Suit: 890 Other Statutory Actions Jurisdiction: U.S. Government Defendant

Plaintiff City of Los Angeles

represented by James Patrick Clark Los Angeles City Attorney's Office Affirmative Litigation Division 200 North Main Street Suite 800 Los Angeles, CA 90012 213-978-8347 Fax: 213-978-8312 LEAD ATTORNEY ATTORNEY TO BE NOTICED

Michael Nelson Feuer Los Angeles City Attorneys Office Affirmative Litigation Division City Hall 200 North Main Street 14th Floor Los Angeles, CA 90012 213-978-1846 Fax: 213-978-8312 Email: mike.feuer@lacity.org LEAD ATTORNEY ATTORNEY TO BE NOTICED

Mitchell A Kamin Covington and Burling LLP 1999 Avenue of the Stars Suite 3500

Los Angeles, CA 90067-4643 424-332-4800 Fax: 424-332-4749 Email: mkamin@cov.com LEAD ATTORNEY ATTORNEY TO BE NOTICED
David M Zionts Covington and Burling LLP 850 Tenth Street NW Washington, DC 20001 202-662-6000 Fax: 202-662-5987 Email: dzionts@cov.com PRO HAC VICE ATTORNEY TO BE NOTICED
Ivano M. Ventresca Covington and Burling LLP Once CityCenter 850 Tenth Street NW Washington, DC 20001 202-662-6000 Fax: 202-662-5987 Email: iventresca@zuckerman.com PRO HAC VICE ATTORNEY TO BE NOTICED
Leela A Kapur Los Angeles City Attorneys Office City Hall East 200 North Main Street Suite 800 Los Angeles, CA 90012 213-978-8100 Fax: 213-978-8312 Email: leela.kapur@lacity.org ATTORNEY TO BE NOTICED
Michael J Dundas Los Angeles City Attorneys Office City Hall East 200 North Main Street Suite 700 Los Angeles, CA 90012 213-978-8100 Fax: 213-978-8314 Email: mike.dundas@lacity.org

V.
Defendant
Jefferson B. Sessions III in his official capacity as Attorney General of the United States

ATTORNEY TO BE NOTICED
Monica Ramirez Almadani Covington and Burling LLP 1999 Avenue of the Stars Suite 3500 Los Angeles, CA 90067-4643 424-332-4800 Fax: 424-332-4749 Email: mralmadani@cov.com TERMINATED: 05/08/2019
Neema Trivedi Sahni Covington and Burling LLP 1999 Avenue of the Stars Suite 3500 Los Angeles, CA 90067-4643 424-332-4800 Fax: 424-332-4749 Email: nsahni@cov.com ATTORNEY TO BE NOTICED
Valerie L Flores Los Angeles City Attorneys Office City Hall East 200 North Main Street Suite 700 Los Angeles, CA 90012 213-978-8130 Fax: 213-978-2222 Email: valerie.flores@lacity.org ATTORNEY TO BE NOTICED
represented by Joseph J DeMott US Department of Justice Civil Division - Federal Programs Branch 1100 L Street NW Room 12210 Washington, DC 20004 202-514-3367 Fax: 202-616-8460 Email: joseph.demott@usdoj.gov LEAD ATTORNEY ATTORNEY TO BE NOTICED

Defendant
Alan R. Hanson in his official capacity as Acting Assistant Attorney General of the Office of Justice Programs

Daniel Mauler US Department of Justice Civil Division - Federal Programs Branch 1100 L Street NW Washington, DC 20005 202-616-0773 Fax: 202-616-8470 Email: dan.mauler@usdoj.gov TERMINATED: 02/25/2020
James M Burnham US Department of Justice Civil Division - Federal Programs Branch PO Box 883 Washington, DC 20044 202-514-3495 Fax: 202-616-8470 ATTORNEY TO BE NOTICED
James H Percival US Department of Justice Building 5718 950 Pennsylvania Avenue NW Washington, DC 20530 202-616-1589 Fax: 202-514-0238 Email: james.percival@usdoj.gov TERMINATED: 02/04/2019
W Scott Simpson US Department of Justice Civil Division 318 South Sixth Street Room 244 Springfield, IL 62701 202-514-3495 Fax: 217-492-4888 Email: scott.simpson@usdoj.gov TERMINATED: 05/03/2019
represented by Joseph J DeMott (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Defendant Russell Washington in his official capacity as Acting Director of the Office of Community Oriented Policing Services
Defendant United States Department of Justice

Daniel Mauler (See above for address) TERMINATED: 02/25/2020
James M Burnham (See above for address) ATTORNEY TO BE NOTICED
James H Percival (See above for address) TERMINATED: 02/04/2019
W Scott Simpson (See above for address) TERMINATED: 05/03/2019
represented by Joseph J DeMott (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Daniel Mauler (See above for address) TERMINATED: 02/25/2020
James M Burnham (See above for address) ATTORNEY TO BE NOTICED
James H Percival (See above for address) TERMINATED: 02/04/2019
W Scott Simpson (See above for address) TERMINATED: 05/03/2019
represented by Joseph J DeMott (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Defendant Laura L. Rogers
Defendant Matt M. Dummermuth

Daniel Mauler (See above for address) TERMINATED: 02/25/2020
James M Burnham (See above for address) ATTORNEY TO BE NOTICED
James H Percival (See above for address) TERMINATED: 02/04/2019
W Scott Simpson (See above for address) TERMINATED: 05/03/2019
represented by Joseph J DeMott (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Daniel Mauler (See above for address) TERMINATED: 02/25/2020
James H Percival (See above for address) TERMINATED: 02/04/2019
W Scott Simpson (See above for address) TERMINATED: 05/03/2019
represented by Joseph J DeMott (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Daniel Mauler (See above for address) TERMINATED: 02/25/2020
W Scott Simpson

Defendant Phil E. Keith
Defendant Matthew G. Whitaker
Amicus Current and Former Prosecutors and Law Enforcement Leaders Current and Former Prosecutors and Law Enforcement Leaders

(See above for address) TERMINATED: 05/03/2019
represented by Joseph J DeMott (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Daniel Mauler (See above for address) TERMINATED: 02/25/2020
W Scott Simpson (See above for address) TERMINATED: 05/03/2019
represented by Joseph J DeMott (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Daniel Mauler (See above for address) TERMINATED: 02/25/2020
W Scott Simpson (See above for address) TERMINATED: 05/03/2019
represented by Joshua A Geltzer Institute for Constitutional Advocacy and Protection 600 New Jersey Avenue NW Washington, DC 20001 202-662-9042 Fax: 202-662-9248 Email: jg1861@georgetown.edu PRO HAC VICE ATTORNEY TO BE NOTICED
Keli M Reynolds Olmos and Reynolds Law Group

Amicus Immigration Reform Law Institute
Amicus County of Los Angeles

LLP 315 West 9th Street Suite 701 Los Angeles, CA 90015 323-951-0144 Fax: 323-940-4406 Email: keli@olmosandreynolds.com ATTORNEY TO BE NOTICED
represented by Julie B Axelrod Center for Immigration Studies 1629 K Street Washington, DC 20006 202-466-8185 Fax: 202-466-8076 Email: jba@cis.org ATTORNEY TO BE NOTICED
represented by Daniel R Suvor O'Melveny and Myers LLP 400 South Hope Street 18th Floor Los Angeles, CA 90071-2899 213-430-6000 Fax: 213-430-6407 Email: dsuvor@omm.com ATTORNEY TO BE NOTICED
James W Crooks O'Melveny and Myers LLP 400 South Hope Street Los Angeles, CA 90071 213-430-7672 Email: jcrooks@omm.com ATTORNEY TO BE NOTICED
Margaret L Carter O'Melveny and Myers LLP 400 South Hope Street 18th Floor Los Angeles, CA 90071 213-430-6000 Fax: 213-430-6407 Email: mcarter@omm.com ATTORNEY TO BE NOTICED

Amicus
5 Counties, 7 Cities, and The District of Columbia

Date Filed 09/29/2017
09/29/2017 09/29/2017 09/29/2017 09/29/2017 09/29/2017 09/29/2017

#

Docket Text

COMPLAINT Receipt No: 0973-20589203 - Fee: $400, filed by

1

Plaintiff CITY OF LOS ANGELES. (Attachments: # 1 Exhibit 1,

# 2 Exhibit 2, # 3 Exhibit 3, # 4 Exhibit 4, # 5 Exhibit 5, # 6 Exhibit 6, # 7 Exhibit 7, # 8 Exhibit 8, # 9 Exhibit 9, # 10 Exhibit 10, # 11 Exhibit 11) (Attorney Mitchell A Kamin added to party CITY OF LOS ANGELES(pty:pla))(Kamin, Mitchell) (Entered: 09/29/2017)

2 CIVIL COVER SHEET filed by Plaintiff CITY OF LOS ANGELES. (Kamin, Mitchell) (Entered: 09/29/2017)

3 Request for Clerk to Issue Summons on Complaint (Attorney Civil

Case Opening), 1 filed by Plaintiff CITY OF LOS ANGELES. (Kamin, Mitchell) (Entered: 09/29/2017)

4 Request for Clerk to Issue Summons on Complaint (Attorney Civil

Case Opening), 1 filed by Plaintiff CITY OF LOS ANGELES. (Kamin, Mitchell) (Entered: 09/29/2017)

5 Request for Clerk to Issue Summons on Complaint (Attorney Civil

Case Opening), 1 filed by Plaintiff CITY OF LOS ANGELES. (Kamin, Mitchell) (Entered: 09/29/2017)
6 Request for Clerk to Issue Summons on Complaint (Attorney Civil

Case Opening), 1 filed by Plaintiff CITY OF LOS ANGELES. (Kamin, Mitchell) (Entered: 09/29/2017)

APPLICATION for Preliminary Injunction re grant award

7

determinations . Motion filed by Plaintiff CITY OF LOS

ANGELES. (Attachments: # 1 Memorandum in Support of

Application for Preliminary Injunction, # 2 Declaration of Stella

Larracas in Support of Application for Preliminary Injunction,

# 3 Declaration of Steven Hong in Support of Application for

Preliminary Injunction, # 4 Declaration of Michael Hyams in

09/29/2017
09/29/2017 09/29/2017 09/29/2017 10/02/2017 10/02/2017 10/02/2017

Support of Application for Preliminary Injunction, # 5 Proposed Order) (Kamin, Mitchell) (Entered: 09/29/2017)
8 CERTIFICATE OF SERVICE filed by Plaintiff CITY OF LOS ANGELES, re Summons Request 5 , Complaint (Attorney Civil
Case Opening), 1 , Civil Cover Sheet (CV-71) 2 , APPLICATION for Preliminary Injunction re grant award
determinations . Motion 7 , Summons Request 6 , Summons Request 3 , Summons Request 4 served on September 29, 2017. (Kamin, Mitchell) (Entered: 09/29/2017)
9 NOTICE of Appearance filed by attorney Mitchell A Kamin on behalf of Plaintiff CITY OF LOS ANGELES (Kamin, Mitchell) (Entered: 09/29/2017)
10 NOTICE of Appearance filed by attorney Neema Trivedi Sahni on behalf of Plaintiff CITY OF LOS ANGELES (Attorney Neema Trivedi Sahni added to party CITY OF LOS ANGELES(pty:pla))(Sahni, Neema) (Entered: 09/29/2017)
11 NOTICE of Appearance filed by attorney Monica Ramirez Almadani on behalf of Plaintiff CITY OF LOS ANGELES (Attorney Monica Ramirez Almadani added to party CITY OF LOS ANGELES(pty:pla))(Almadani, Monica) (Entered: 09/29/2017)
12 APPLICATION of Non-Resident Attorney Ivano Ventresca to Appear Pro Hac Vice on behalf of Plaintiff City of Los Angeles (Pro Hac Vice Fee - Fee Paid, Receipt No. 0973-20595695) filed by Plaintiff City of Los Angeles. (Attachments: # 1 Prop osed Order) (Kamin, Mitchell) (Entered: 10/02/2017)
13 NOTICE OF ASSIGNMENT to District Judge Manuel L. Real and Magistrate Judge Jacqueline Chooljian. (car) (Entered: 10/02/2017)
14 APPLICATION of Non-Resident Attorney David M. Zionts to Appear Pro Hac Vice on behalf of Plaintiff City of Los Angeles (Pro Hac Vice Fee - Fee Paid, Receipt No. 0973-20595778) filed by Plaintiff City of Los Angeles. (Attachments: # 1 Prop osed Order) (Kamin, Mitchell) (Entered: 10/02/2017)

10/02/2017 10/02/2017 10/02/2017 10/02/2017 10/02/2017 10/02/2017 10/02/2017 10/02/2017 10/02/2017 10/03/2017

15 60 DAY Summons Issued re Complaint (Attorney Civil Case

Opening), 1 as to Defendant Jefferson B. Sessions III. (car) (Entered: 10/02/2017)

16 60 DAY Summons Issued re Complaint (Attorney Civil Case

Opening), 1 10/02/2017)

as to Defendant Alan R. Hanson. (car) (Entered:

17 60 DAY Summons Issued re Complaint (Attorney Civil Case

Opening), 1 as to Defendant Russell Washington. (car) (Entered: 10/02/2017)

18 60 DAY Summons Issued re Complaint (Attorney Civil Case

Opening), 1 as to Defendant United States Department of Justice. (car) (Entered: 10/02/2017)
19 NOTICE of Appearance filed by attorney James Patrick Clark on behalf of Plaintiff City of Los Angeles (Attorney James Patrick Clark added to party City of Los Angeles(pty:pla))(Clark, James) (Entered: 10/02/2017)

20 NOTICE of Appearance filed by attorney Michael Nelson Feuer on behalf of Plaintiff City of Los Angeles (Feuer, Michael) (Entered: 10/02/2017)
21 NOTICE of Appearance filed by attorney Michael J Dundas on behalf of Plaintiff City of Los Angeles (Attorney Michael J Dundas added to party City of Los Angeles(pty:pla))(Dundas, Michael) (Entered: 10/02/2017)

22 NOTICE of Appearance filed by attorney Valerie L Flores on behalf of Plaintiff City of Los Angeles (Attorney Valerie L Flores added to party City of Los Angeles(pty:pla))(Flores, Valerie) (Entered: 10/02/2017)

23 NOTICE of Appearance filed by attorney Leela A Kapur on behalf of Plaintiff City of Los Angeles (Attorney Leela A Kapur added to party City of Los Angeles(pty:pla))(Kapur, Leela) (Entered: 10/02/2017)

24 ORDER RE: NOTICE TO COUNSEL upon filing of the complaint by Judge Manuel L. Real. READ CAREFULLY -

10/03/2017
10/04/2017 10/04/2017 10/04/2017 10/04/2017 10/04/2017 10/04/2017 10/05/2017

FAILURE TO COMPLY MAY LEAD TO SANCTIONS. SEE ORDER FOR DETAILS. (iv) (Entered: 10/03/2017)
25 NOTICE of Deficiency in Electronically Filed Pro Hac Vice Application RE: APPLICATION of Non-Resident Attorney David M. Zionts to Appear Pro Hac Vice on behalf of Plaintiff City of Los Angeles (Pro Hac Vice Fee - Fee Paid, Receipt No. 097320595778) 14 , APPLICATION of Non-Resident Attorney Ivano Ventresca to Appear Pro Hac Vice on behalf of Plaintiff City of Los Angeles (Pro Hac Vice Fee - Fee Paid, Receipt No. 097320595695) 12 . The following error(s) was/were found: Superseded version of Form G-64 used. (lt) (Entered: 10/03/2017)
26 CERTIFICATE OF SERVICE filed by Plaintiff City of Los Angeles, re Summons Issued (Attorney Civil Case Opening) 15 served on October 3, 2017. (Kamin, Mitchell) (Entered: 10/04/2017)
27 CERTIFICATE OF SERVICE filed by Plaintiff City of Los Angeles, re Summons Issued (Attorney Civil Case Opening) 16 served on October 3, 2017. (Kamin, Mitchell) (Entered: 10/04/2017)
28 CERTIFICATE OF SERVICE filed by Plaintiff City of Los Angeles, re Summons Issued (Attorney Civil Case Opening) 17 served on October 3, 2017. (Kamin, Mitchell) (Entered: 10/04/2017)
29 CERTIFICATE OF SERVICE filed by Plaintiff City of Los Angeles, re Summons Issued (Attorney Civil Case Opening) 18 served on October 3, 2017. (Kamin, Mitchell) (Entered: 10/04/2017)
30 CERTIFICATE OF SERVICE filed by Plaintiff City of Los Angeles, re Initial Order upon Filing of Complaint - form only 24 , Notice of Assignment to United States Judges(CV-18) - optional html form 13 served on October 3, 2017. (Kamin, Mitchell) (Entered: 10/04/2017)
31 STIPULATION to Expedite Briefing Schedule and Hearing Date on Application for Preliminary Injunction filed by Plaintiff City of Los Angeles. (Attachments: # 1 Proposed Order)(Kamin, Mitchell) (Entered: 10/04/2017)
32 ORDER ON STIPULATION FOR EXPEDITED BRIEFING SCHEDULE & HEARING DATE ON CITY OF LOS ANGELES' APPLICATION FOR PRELIMINARY INJUNCTION 31 by

10/12/2017
10/13/2017 10/13/2017 10/13/2017

Judge Manuel L. Real. The Court has reviewed and considered the stipulation submitted by Plaintiff the City of Los Angeles (Plaintiff), and Defendants Jefferson B. Sessions, III, Russell Washington, and the United States Department of Justice (Defendants) in the abovecaptioned action (the Stipulation). Accordingly, and upon good cause shown, IT IS HEREBY ORDERED that the briefing schedule and hearing date on Plaintiffs Application for Preliminary Injunction shall be set as follows: 1. Defendants shall file their Opposition to the Citys Application on or before October 12, 2017; 2. Los Angeles shall file its Reply Brief in response to Defendants Opposition on or before October 17, 2017; 3. A hearing on Los Angeles Application shall be held on October 23, 2017, at 10:00 a.m., or on such other date as the Court may choose, in Courtroom 880. IT IS SO ORDERED. (clee) (Entered: 10/06/2017)

MEMORANDUM in Opposition to APPLICATION for

33

Preliminary Injunction re grant award determinations . Motion 7

filed by Defendants Alan R. Hanson, Jefferson B. Sessions III, United States Department of Justice, Russell Washington. (Attachments: # 1 Declaration of Andrew A. Dorr, # 2 Declaration of Jim Brown, # 3 Brief for Amici Curiae, United States v. Texas)(Attorney W Scott Simpson added to party Alan R. Hanson(pty:dft), Attorney W Scott Simpson added to party Jefferson B. Sessions III(pty:dft), Attorney W Scott Simpson added to party United States Department of Justice(pty:dft), Attorney W Scott Simpson added to party Russell Washington(pty:dft))(Simpson, W) (Entered: 10/12/2017)
34 Corrected APPLICATION of Non-Resident Attorney David M. Zionts to Appear Pro Hac Vice on behalf of Plaintiff City of Los Angeles (Pro Hac Vice Fee - $325 Previously Paid on 10/2/2017, Receipt No. 2656H9U8) filed by Plaintiff City of Los Angeles. (Attachments: # 1 Proposed Order) (Kamin, Mitchell) (Entered: 10/13/2017)
35 Corrected APPLICATION of Non-Resident Attorney Ivano Ventresca to Appear Pro Hac Vice on behalf of Plaintiff City of Los Angeles (Pro Hac Vice Fee - $325 Previously Paid on 10/2/2017, Receipt No. 2656H744) filed by Plaintiff City of Los Angeles. (Attachments: # 1 Proposed Order) (Kamin, Mitchell) (Entered: 10/13/2017)
36 NOTICE of Appearance filed by attorney W Scott Simpson on behalf of Defendants Alan R. Hanson, Jefferson B. Sessions III,

10/16/2017 10/16/2017 10/16/2017 10/24/2017 10/26/2017 10/30/2017
10/30/2017

United States Department of Justice, Russell Washington (Simpson, W) (Entered: 10/13/2017)
37 Notice of Withdrawal of Motion for Preliminary Injunction,, 7
filed by Plaintiff City of Los Angeles. (Almadani, Monica) (Entered: 10/16/2017)
38 ORDER by Judge Manuel L. Real: Granting Application of NonResident Attorney David M. Zionts to Appear Pro Hac Vice on behalf of Plaintiff City of Los Angeles, designating Mitchell A. Kamin as local counsel 34 . (iv) (Entered: 10/16/2017)
39 ORDER by Judge Manuel L. Real: Granting Application of NonResident Attorney Ivano Ventresca to Appear Pro Hac Vice on behalf of Plaintiff City of Los Angeles, designating Mitchell A. Kamin as local counsel 35 . (iv) (Entered: 10/16/2017)
40 STIPULATION for Consideration of Initial Disclosures and Early Meeting of Counsel filed by defendants Alan R. Hanson, Jefferson B. Sessions III, United States Department of Justice, Russell Washington. (Attachments: # 1 Proposed Order)(Simpson, W) (Entered: 10/24/2017)
41 STIPULATION for Consideration of Initial Disclosures and Early Meeting of Counsel filed by defendants Alan R. Hanson, Jefferson B. Sessions III, United States Department of Justice, Russell Washington. (Attachments: # 1 Proposed Order)(Simpson, W) (Entered: 10/26/2017)
42 NOTICE TO FILER OF DEFICIENCIES in Electronically Filed Documents RE: Certificates of Service 26 , 27 , 28 , 29 . The following error(s) was/were found: Incorrect event selected. Correct event to be used is Service of Summons and Complaint Returned Executed as to USA (60 days). Other error(s) with document(s): The filer used the event, Proof of Service (subsequent documents), for docketing these filings. In response to this notice, the Court may: (1) order an amended or correct document to be filed; (2) order the document stricken; or (3) take other action as the Court deems appropriate. You need not take any action in response to this notice unless and until the Court directs you to do so. (gk) (Entered: 10/30/2017)
43 PROOF OF SERVICE Executed by Plaintiff City of Los Angeles, upon Defendant Jefferson B. Sessions III served on 10/3/2017, answer due 12/4/2017. Service of the Summons and Complaint were executed upon the United States Attorneys Office by

10/30/2017 10/30/2017 10/30/2017 11/16/2017

delivering a copy to Genoveva Ortega, Deputy Clerk. Executed upon the officer agency or corporation by delivering a copy to Department of Justice. Service was executed in compliance with Federal Rules of Civil Procedure. Due diligence declaration NOT attached. Registered or certified mail return receipt attached. Original Summons NOT returned. (Kamin, Mitchell) (Entered: 10/30/2017)
44 PROOF OF SERVICE Executed by Plaintiff City of Los Angeles, upon Defendant Alan R. Hanson served on 10/3/2017, answer due 12/4/2017. Service of the Summons and Complaint were executed upon the United States Attorneys Office by delivering a copy to Genoveva Ortega, Deputy Clerk. Executed upon the officer agency or corporation by delivering a copy to Department of Justice. Service was executed in compliance with Federal Rules of Civil Procedure. Due diligence declaration NOT attached. Registered or certified mail return receipt attached. Original Summons NOT returned. (Kamin, Mitchell) (Entered: 10/30/2017)
45 PROOF OF SERVICE Executed by Plaintiff City of Los Angeles, upon Defendant Russell Washington served on 10/3/2017, answer due 12/4/2017. Service of the Summons and Complaint were executed upon the United States Attorneys Office by delivering a copy to Genoveva Ortega, Deputy Clerk. Executed upon the officer agency or corporation by delivering a copy to Department of Justice. Service was executed in compliance with Federal Rules of Civil Procedure. Due diligence declaration NOT attached. Registered or certified mail return receipt attached. Original Summons NOT returned. (Kamin, Mitchell) (Entered: 10/30/2017)
46 PROOF OF SERVICE Executed by Plaintiff City of Los Angeles, upon Defendant United States Department of Justice served on 10/3/2017, answer due 12/4/2017. Service of the Summons and Complaint were executed upon the United States Attorneys Office by delivering a copy to Genoveva Ortega, Deputy Clerk. Executed upon the officer agency or corporation by delivering a copy to Department of Justice. Service was executed in compliance with Federal Rules of Civil Procedure. Due diligence declaration NOT attached. Registered or certified mail return receipt attached. Original Summons NOT returned. (Attachments: # 1 Exhibit 1 Proof of Personal Service on Department of Justice)(Kamin, Mitchell) (Entered: 10/30/2017)
47 DENIED BY ORDER of Judge Manuel L. Real, re Stipulation and Request for Order Regarding Initial Disclosures and Early Meeting of Counsel 41 . (gk) (Entered: 11/17/2017)

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48 TEXT ONLY SCHEDULING ORDER SETTING DUE DATE OF EARLY MEETING REPORT by Judge Manuel L. Real. The Court DENIED the parties' Stipulation to be excused from the need to conduct an early meeting of counsel and to provide initial disclosures. The Court hereby ORDERS that an Early Meeting Report/Joint Rule 26f Report be submitted to the Court on or before Friday, December 1, 2017. IT IS SO ORDERED. THERE IS NO PDF DOCUMENT ASSOCIATED WITH THIS ENTRY. (cch) TEXT ONLY ENTRY (Entered: 11/17/2017)
49 NOTICE OF MOTION AND MOTION for Partial Summary Judgment as to Counts Four, Five and Six of Plaintiff's Complaint filed by Plaintiff City of Los Angeles. Motion set for hearing on 2/5/2018 at 10:00 AM before Judge Manuel L. Real. (Attachments: # 1 Memorandum in support of Motion for Partial Summary Judgment, # 2 Statement of Uncontroverted Facts, # 3 Request for Judicial Notice, # 4 Declaration of Stella Larracas, # 5 Declaration of Michael Hyams, # 6 Proposed Order, # 7 Certificate of Service) (Kamin, Mitchell) (Entered: 11/21/2017)
50 STIPULATION for Order Regarding Schedule filed by defendants Alan R. Hanson, Jefferson B. Sessions III, United States Department of Justice, Russell Washington. (Attachments: # 1 Proposed Order)(Simpson, W) (Entered: 11/30/2017)
51 JOINT REPORT Rule 26(f) Discovery Plan and Early Meeting of Counsel ; estimated length of trial 5 days, filed by Plaintiff City of Los Angeles.. (Kamin, Mitchell) (Entered: 12/01/2017)
52 ORDER REGARDING SCHEDULE by Judge Manuel L. Real: Upon Stipulation 50 , IT IS HEREBY ORDERED, as follows: Defendants' response to Counts Four, Five, and Six of the Complaint, whether by Answer or motion 1/12/2018. Defendants' Opposition to Plaintiff's Motion for Partial Summary Judgment 1/12/2018. Plaintiff's Reply to Defendants' Opposition to Motion for Partial Summary Judgment 1/29/2018. Hearing on (1) Plaintiff's Motion for Partial Summary Judgment and (2) motion filed by the Defendants, if any, in response to Counts Four, Five, and Six of the Complaint 49 on 2/20/2018 at 10:00 AM before Judge Manuel L. Real. Proceedings on Counts One, Two, and Three of the Complaint shall be stayed pending further order of this Court. See document for further details. (gk) (Entered: 12/07/2017)

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53 NOTICE OF MOTION AND MOTION for Partial Summary Judgment as to Counts Four, Five, and Six filed by Defendants Alan R. Hanson, Jefferson B. Sessions III, United States Department of Justice, Russell Washington. Motion set for hearing on 2/20/2018 at 10:00 AM before Judge Manuel L. Real. (Attachments: # 1 Declaration of Andrew A. Dorr, # 2 Statement of Uncontroverted Facts, # 3 Proposed Order) (Simpson, W) (Entered: 01/12/2018)

MEMORANDUM in Opposition to NOTICE OF MOTION AND

54

MOTION for Partial Summary Judgment as to Counts Four, Five

and Six of Plaintiff's Complaint 49 filed by Defendants Alan R.

Hanson, Jefferson B. Sessions III, United States Department of

Justice, Russell Washington. (Attachments: # 1 Declaration of

Andrew A. Dorr, # 2 Response to Plaintiff's Statement of

Uncontroverted Facts, # 3 Proposed Order)(Simpson, W)

(Entered: 01/12/2018)

55 APPLICATION of Non-Resident Attorney Joshua A. Geltzer to Appear Pro Hac Vice on behalf of Amicus Current and Former Prosecutors and Law Enforcement Leaders (Pro Hac Vice Fee $325.00 Previously Paid on 1/24/2018, Receipt No. 097321151535) filed by Amici Curiae Current and Former Prosecutors and Law Enforcement Leaders. (Attachments: # 1 Exhibit Certificate of Good Standing, # 2 Proposed Order Proposed Order) (Attorney Keli M Reynolds added to party Current and Former Prosecutors and Law Enforcement Leaders(pty:am)) (Reynolds, Keli) (Entered: 01/24/2018)

56 MEMORANDUM in Opposition to NOTICE OF MOTION AND MOTION for Partial Summary Judgment as to Counts Four, Five and Six of Plaintiff's Complaint 49 filed by Amicus Immigration Reform Law Institute. (Attachments: # 1 Exhibit 1, # 2 Exhibit 2, # 3 Certificate and Notice of Interested Parties)(Attorney Julie B Axelrod added to party Immigration Reform Law Institute(pty:am))(Axelrod, Julie) (Entered: 01/26/2018)

57 Opposition re: NOTICE OF MOTION AND MOTION for Partial Summary Judgment as to Counts Four, Five, and Six 53 filed by Plaintiff City of Los Angeles. (Attachments: # 1 Declaration of Stella Larracas, # 2 Response to Defendants' Statement of Uncontroverted Facts)(Kamin, Mitchell) (Entered: 01/29/2018)

58 ORDER by Judge Manuel L. Real: granting 55 Non-Resident Attorney Geltzer, Joshua A. APPLICATION to Appear Pro Hac Vice on behalf of Current and Former Prosecutors and Law

01/29/2018 01/29/2018 01/29/2018 01/29/2018 01/29/2018 01/30/2018

Enforcement Leaders, designating Reynolds, Keli M. as local counsel. (yl) (Entered: 01/29/2018)
59 REPLY in support of NOTICE OF MOTION AND MOTION for Partial Summary Judgment as to Counts Four, Five and Six of Plaintiff's Complaint 49 filed by Plaintiff City of Los Angeles. (Attachments: # 1 Declaration of Stella Larracas, # 2 Response to Defendants' Statement of Uncontroverted Facts)(Kamin, Mitchell) (Entered: 01/29/2018)
60 APPLICATION to File Amicus Brief filed by Amici Curiae Current and Former Prosecutors and Law Enforcement Leaders. (Attachments: # 1 Exhibit Brief of Amici Curiae, # 2 Proposed Order) (Geltzer, Joshua) (Entered: 01/29/2018)
61 Notice of Appearance or Withdrawal of Counsel: for attorney Margaret L Carter counsel for Amicus County of Los Angeles. Adding Margaret L. Carter as counsel of record for County of Los Angeles for the reason indicated in the G-123 Notice. Filed by Amicus County of Los Angeles. (Attorney Margaret L Carter added to party County of Los Angeles(pty:am))(Carter, Margaret) (Entered: 01/29/2018)
62 Notice of Appearance or Withdrawal of Counsel: for attorney Daniel R Suvor counsel for Amicus County of Los Angeles. Adding Daniel R. Suvor as counsel of record for County of Los Angeles for the reason indicated in the G-123 Notice. Filed by Amicus County of Los Angeles. (Attorney Daniel R Suvor added to party County of Los Angeles(pty:am))(Suvor, Daniel) (Entered: 01/29/2018)
63 NOTICE OF MOTION AND MOTION to File Amicus Brief / Administrative Motion for Leave to File Brief of Amici Curiae 5 Counties, 7 Cities, and The District of Columbia in Support of Plaintiff's Motion for Partial Summary Judgment (ECF.49) filed by Amicus County of Los Angeles. (Attachments: # 1 Attachment - 1 Amicus Brief, # 2 Proposed Order) (Carter, Margaret) (Entered: 01/29/2018)
64 Notice of Appearance or Withdrawal of Counsel: for attorney James W Crooks counsel for Amicus County of Los Angeles. Adding James W. Crooks as counsel of record for County of Los Angeles for the reason indicated in the G-123 Notice. Filed by Amicus County of Los Angeles. (Attorney James W Crooks added to party County of Los Angeles(pty:am))(Crooks, James) (Entered: 01/30/2018)

01/30/2018 02/01/2018 02/01/2018 02/01/2018 02/08/2018
02/13/2018
02/14/2018 02/15/2018

65 ORDER GRANTING ADMINISTRATIVE MOTION FOR LEAVE TO FILE BRIEF OF AMICI CURIAE 5 COUNTIES, 7 CITIES, AND THE DISTRICT OF COLUMBIA IN SUPPORT OF PLAINTIFFS MOTION FOR PARTIAL SUMMARY JUDGMENT by Judge Manuel L. Real. (yl) (Entered: 01/30/2018)

66 ORDER GRANTING MOTION FOR LEAVE TO FILE BRIEF OF AMICI CURIAE CURRENT ANDFORMER PROSECUTORS AND LAW ENFORCEMENT LEADERS IN SUPPORT OF PLAINTIFFS MOTION FOR PARTIAL SUMMARY JUDGMENT by Judge Manuel L. Real. (yl) (Entered: 02/01/2018)

67 Amicus Curiae Brief filed filed by Amicus Current and Former Prosecutors and Law Enforcement Leaders. RE: Order on Motion to File Amicus Brief 66 . (Attachments: # 1 Exhibit List of Amici)(Geltzer, Joshua) (Entered: 02/01/2018)

68 Amicus Curiae Brief filed filed by Amicus 5 Counties, 7 Cities, and The District of Columbia. RE: Order on Motion to File Amicus Brief 65 . (Carter, Margaret) (Entered: 02/01/2018)

REPLY In Support NOTICE OF MOTION AND MOTION for

69

Partial Summary Judgment as to Counts Four, Five, and

Six 53 filed by Defendants Alan R. Hanson, Jefferson B. Sessions

III, United States Department of Justice, Russell Washington.

(Attachments: # 1 Declaration of W. Scott Simpson,

# 2 Defendants' Request for Judicial Notice, # 3 Brief for Amici

Curiae, United States v. Texas)(Simpson, W) (Entered:

02/08/2018)

70 Joint STIPULATION for Hearing re NOTICE OF MOTION AND MOTION for Partial Summary Judgment as to Counts Four, Five and Six of Plaintiff's Complaint 49 , NOTICE OF MOTION AND MOTION for Partial Summary Judgment as to Counts Four, Five, and Six 53 filed by Plaintiff City of Los Angeles. (Attachments: # 1 Declaration of James P. Clark, # 2 Proposed Order)(Kamin, Mitchell) (Entered: 02/13/2018)

71 ORDER DENYING STIPULATION FOR HEARING DATE ON CITY OF LOS ANGELES' MOTION FOR PARTIAL SUMMARY JUDGMENT AND DEFENDANTS' MOTION FOR PARTIAL SUMMARY JUDGMENT 70 by Judge Manuel L. Real. (gk) (Entered: 02/14/2018)

72 TEXT ONLY SCHEDULING ORDER (IN CHAMBERS) RESETTING HEARING by Judge Manuel L. Real. Counsel and

02/28/2018 04/10/2018 04/11/2018

parties are notified that on the Court's own motion, the hearing on Plaintiff City of Los Angeles' Motion for Partial Summary Judgment as to Counts Four, Five and Six of Plaintiffs Complaint 49 , and Defendants Alan R. Hanson, Jefferson B. Sessions III, United States Department of Justice, Russell Washington's Motion for Partial Summary Judgment as to Counts Four, Five, and Six 53 set for February 20, 2018 is hereby continued and RE-SET on WEDNESDAY, FEBRUARY 28, 2018 AT 10:00 AM. Counsel shall appear on the new date and time in Courtroom 880 of the Roybal Federal Building, 255 East Temple Street, Los Angeles, CA 90012. IT IS SO ORDERED. THERE IS NO PDF DOCUMENT ASSOCIATED WITH THIS ENTRY. (cch) TEXT ONLY ENTRY (Entered: 02/15/2018)

73 MINUTES OF Motion Hearing held before Judge Manuel L. Real RE: Plaintiff City of Los Angeles' Motion for Partial Summary Judgment as to Counts Four, Five and Six 49 ; and Defendants Alan Hanson, Jefferson B. Session III, United States Department of Justice, Russell Washington's Motion for Partial Summary Judgment as to Counts Four, Five, and Six 53 . Court hears arguments of counsel. The Court takes the matters under submission. An Order will issue. Court Reporter: Sheri Kleeger. (gk) (Entered: 03/01/2018)

74 NOTICE TO PARTIES by U.S. Magistrate Judge Jacqueline Chooljian. Effective, April 11, 2018, Judge Chooljian will be located at the Edward R. Roybal Federal Building and U.S. Courthouse ("Roybal Building"), located at 255 East Temple Street, Los Angeles, California 90012. All Court appearances shall be made in Courtroom 750 on the 7th floor of the Roybal Building. All mandatory chambers copies shall be hand delivered to the judge's mail box located outside of the Clerk's Office on the 12th floor of the Roybal Building. Paper civil and criminal documents exempted from electronic filing shall be filed in Room 180 on the Terrace Level of the Roybal Building. Magistrate Judge Chooljian's Courtroom Deputy Clerk, Kerri Hays, may be reached at (213) 894-2921. THERE IS NO PDF DOCUMENT ASSOCIATED WITH THIS ENTRY. (rrey) TEXT ONLY ENTRY (Entered: 04/10/2018)

ORDER GRANTING PLAINTIFF'S MOTION FOR PARTIAL

75

SUMMARY JUDGMENT AND DENYING DEFENDANTS'

MOTION FOR PARTIAL SUMMARY JUDGMENT by Judge

Manuel L. Real: IT IS HEREBY ORDERED that Plaintiff's

Motion for Summary Judgment 49 is GRANTED. IT IS

FURTHER ORDERED that Defendants' Motion for Summary

04/30/2018 05/02/2018
05/04/2018 05/07/2018

Judgment 53 is DENIED. IT IS FURTHER ORDERED that Defendants are permanently enjoined from imposing the Challenged Considerations in future COPS Hiring Program grant cycles. See document for further details. (gk) ** INJUNCTION IS DISSOLVED AND VACATED PURSUANT TO THE ORDER OF 12/23/2019 113 ** Modified on 12/23/2019 (gk). (Entered: 04/12/2018)
76 Joint STIPULATION for Order regarding further proceedings on Counts One, Two, and Three of Plaintiff's Complaint filed by Plaintiff City of Los Angeles. (Attachments: # 1 Proposed Order)(Kamin, Mitchell) (Entered: 04/30/2018)
77 ORDER REGARDING FURTHER PROCEEDINGS ON COUNTS ONE, TWO, AND THREE OF PLAINTIFF'S COMPLAINT by Judge Manuel L. Real: Upon Stipulation 76 , IT IS HEREBY ORDERED, as follows: Because the Byrne JAG conditions challenged by Plaintiff remain enjoined nationwide, and in the interests of efficiency and judicial economy, Counts One, Two, and Three of Plaintiff's Complaint remain stayed until the occurrence of either of the following events: (a) The City of Chicago v. Sessions nationwide injunction is dissolved, in which case the parties will proceed with further proceedings on Counts One, Two, and Three; or (b) The City of Chicago v. Sessions action results in a nationwide permanent injunction of the challenged Byrne JAG conditions, after all opportunities for appeal and certiorari have been exhausted, in which case Plaintiff will dismiss Counts One, Two, and Three of its Complaint. Within seven days of one of the events listed above, the parties shall file a joint status report. (Made JS-6. Case Terminated.) (gk) (Entered: 05/04/2018)
78 NOTICE OF APPEAL to the 9th Circuit Court of Appeals filed by Defendants Alan R. Hanson, Jefferson B. Sessions III, United States Department of Justice, Russell Washington. Appeal of
Order on Motion for Partial Summary Judgment,,,,, 75 . (Appeal Fee - Not Required for US Goverment.) (Simpson, W) (Entered: 05/04/2018)
79 NOTIFICATION from Ninth Circuit Court of Appeals of case number assigned and briefing schedule. Appeal Docket No. 1855599 assigned to Notice of Appeal to 9th Circuit Court of Appeals, 78 as to Defendants Alan R. Hanson, Jefferson B. Sessions III, United States Department of Justice, Russell Washington. (lom) (Entered: 05/07/2018)

05/11/2018 07/03/2018 07/11/2018 07/18/2018
07/18/2018
07/27/2018
07/27/2018

80 DESIGNATION of Record on Appeal by Defendants Alan R. Hanson, Jefferson B. Sessions III, United States Department of Justice, Russell Washington re 78 (Simpson, W) (Entered: 05/11/2018)

81 STATUS REPORT Joint Report of the Parties filed by Plaintiff City of Los Angeles. (Dundas, Michael) (Entered: 07/03/2018)

82 STIPULATION for Order regarding schedule filed by plaintiff City of Los Angeles. (Attachments: # 1 Proposed Order)(Dundas, Michael) (Entered: 07/11/2018)

APPLICATION for Preliminary Injunction re Byrne JAG award

83

determinations . Motion filed by Plaintiff City of Los Angeles.

Application set for hearing on 9/4/2018 at 10:00 AM before Judge

Manuel L. Real. (Attachments: # 1 Memorandum in Support of

Application for Preliminary Injunction, # 2 Declaration of Arif

Alikhan, # 3 Declaration of Jeff Gorell, # 4 Request for Judicial

Notice and Exhibits, # 5 Proposed Order) (Kamin, Mitchell)

(Entered: 07/18/2018)

84 ORDER REGARDING SCHEDULE by Judge Manuel L. Real: Upon Stipulation 82 , IT IS HEREBY ORDERED that Defendants' deadline to respond to Counts One, Two, and Three of Plaintiff's Complaint, whether by Answer or Motion, shall be 7/27/2018. Hearing on motion filed by the Defendants, if any, in response to Counts One, Two, and Three of the Complaint on 9/4/2018 at 10:00 AM. Hearing on Motion for Preliminary Injunction regarding Counts One, Two, and Three of Plaintiff's

Complaint 83 on 9/4/2018 at 10:00 AM. See document for further details. (Made JS-5, Case reopened) (gk) (Entered: 07/20/2018)

85 NOTICE OF MOTION AND MOTION to Dismiss Counts One, Two, and Three filed by Defendants Jefferson B. Sessions III, United States Department of Justice, Russell Washington, Laura L. Rogers. Motion set for hearing on 9/4/2018 at 10:00 AM before Judge Manuel L. Real. (Attachments: # 1 Request for Judicial Notice (Part 1), # 2 Request for Judicial Notice (Part 2), # 3 Declaration of Marilynn B. Atsatt) (Attorney W Scott Simpson added to party Laura L. Rogers(pty:dft)) (Simpson, W) (Entered: 07/27/2018)

OPPOSITION to APPLICATION for Preliminary Injunction re 86
Byrne JAG award determinations . Motion 83 filed by

08/15/2018 08/15/2018 08/27/2018 08/30/2018
09/07/2018 09/12/2018

Defendants Laura L. Rogers, Jefferson B. Sessions III, United States Department of Justice, Russell Washington. (Attachments: # 1 Request for Judicial Notice (Part 1), # 2 Request for Judicial Notice (Part 2), # 3 Declaration of Marilynn B. Atsatt)(Simpson, W) (Entered: 07/27/2018)

87 OPPOSITION re: NOTICE OF MOTION AND MOTION to Dismiss Counts One, Two, and Three 85 filed by Plaintiff City of Los Angeles. (Kamin, Mitchell) (Entered: 08/15/2018)

88 REPLY in support of APPLICATION for Preliminary Injunction

re Byrne JAG award determinations . Motion 83 filed by Plaintiff City of Los Angeles. (Kamin, Mitchell) (Entered: 08/15/2018)

REPLY in Support of NOTICE OF MOTION AND MOTION to

89

Dismiss Counts One, Two, and Three 85 filed by Defendants

Laura L. Rogers, Jefferson B. Sessions III, United States

Department of Justice, Russell Washington. (Simpson, W)

(Entered: 08/27/2018)

90 TEXT ONLY SCHEDULING ORDER (IN CHAMBERS) by Judge Manuel L. Real. Counsel and parties are notified that the hearing on Plaintiff's Application for Preliminary Injunction 83

, and Defendant's Motion to Dismiss Case 85 , set for Tuesday, September 4, 2018 is hereby continued to Thursday, September 13, 2018 at 10:00 A.M. IT IS SO ORDERED. THERE IS NO PDF DOCUMENT ASSOCIATED WITH THIS ENTRY. (cch) TEXT ONLY ENTRY (Entered: 08/30/2018)
91 NOTICE of Appearance filed by attorney W Scott Simpson on behalf of Defendants Laura L. Rogers, Jefferson B. Sessions III, United States Department of Justice, Russell Washington (Simpson, W) (Entered: 09/07/2018)

92 TEXT ONLY SCHEDULING ORDER (IN CHAMBERS) by Judge Manuel L. Real. The Court has determined that Plaintiff's

Application for Preliminary Injunction (Dkt. No. 83 ), and Defendant's Motion to Dismiss Case (Dkt. No. 85 ) set for hearing on September 13, 2018 at 10:00 A.M. are suitable for a decision on the papers as filed by all parties without the need for oral argument. Therefore, the said motions are taken UNDER SUBMISSION on the papers as filed and the hearing date of September 13, 2018 is VACATED and TAKEN OFF

09/13/2018 09/17/2018 10/01/2018
10/02/2018
10/02/2018 10/02/2018 10/03/2018

CALENDAR. The Court will issue its ruling on the matter in due course. IT IS SO ORDERED. THERE IS NO PDF DOCUMENT ASSOCIATED WITH THIS ENTRY. (cch) TEXT ONLY ENTRY (Entered: 09/12/2018)

ORDER GRANTING PLAINTIFF'S APPLICATION FOR 93
PRELIMINARY INJUNCTION 83 by Judge Manuel L. Real. See document for details. (gk) (Entered: 09/13/2018)

ORDER DENYING DEFENDANTS' MOTION TO

94

DISMISS 85 by Judge Manuel L. Real. See document for details.

(gk) (Entered: 09/18/2018)

95 NOTICE OF APPEAL to the 9th Circuit Court of Appeals filed by Defendants Laura L. Rogers, Jefferson B. Sessions III, United States Department of Justice, Russell Washington. Appeal of

Order on Motion for Preliminary Injunction 93 . (Appeal Fee - Not Required for US Goverment.) (Simpson, W) (Entered: 10/01/2018)

96 STIPULATION Extending Time to Answer the complaint as to Laura L. Rogers answer now due 10/16/2018; Jefferson B. Sessions III answer now due 10/16/2018; Russell Washington answer now due 10/16/2018; United States Department of Justice answer now due 10/16/2018, re Complaint (Attorney Civil Case

Opening), 1 filed by Defendants Laura L. Rogers; Jefferson B. Sessions III; Russell Washington; United States Department of Justice. (Attachments: # 1 Proposed Order)(Simpson, W) (Entered: 10/02/2018)

97 NOTIFICATION from Ninth Circuit Court of Appeals of case number assigned and briefing schedule. Appeal Docket No. 1856292 assigned to Notice of Appeal to 9th Circuit Court of Appeals 95 as to Defendants Laura L. Rogers, Jefferson B. Sessions III, United States Department of Justice, Russell Washington. (gk) (Entered: 10/03/2018)

98 DENIED BY ORDER of Judge Manuel L. Real, re Stipulation and Request for Order to Extend Answer Deadline 96 . (gk) (Entered: 10/03/2018)

ORDER from Ninth Circuit Court of Appeals filed re: Notice of

99

Appeal to 9th Circuit Court of Appeals, 95 filed by Russell

Washington, United States Department of Justice, Jefferson B.

Sessions III, Laura L. Rogers. CCA # 18-56292. The appeal filed October 1, 2018 is a preliminary injunction appeal.Accordingly, Ninth Circuit Rule 3-3 shall apply. [See document for all details.] (mat) (Entered: 10/04/2018)

10/09/2018 100

ANSWER to Complaint (Attorney Civil Case Opening), 1 to Counts One, Two, and Three of Plaintiff's Complaint filed by Defendants Jefferson B. Sessions III, United States Department of Justice, Matt M. Dummermuth, Phil E. Keith.(Attorney W Scott Simpson added to party Matt M. Dummermuth (pty:dft), Attorney W Scott Simpson added to party Phil E. Keith (pty:dft))(Simpson, W) (Entered: 10/09/2018)

02/04/2019

101 Notice of Appearance or Withdrawal of Counsel: for attorney W Scott Simpson counsel for Defendants Matt M. Dummermuth, United States Department of Justice, Matthew G. Whitaker. James Percival is no longer counsel of record for the aforementioned party in this case for the reason indicated in the G-123 Notice. Filed by Defendants Matthew G. Whitaker, et al.. (Attorney W Scott Simpson added to party Matthew G. Whitaker(pty:dft))(Simpson, W) (Entered: 02/04/2019)

05/03/2019

102 Notice of Appearance or Withdrawal of Counsel: for attorney Daniel Mauler counsel for Defendants Matt M. Dummermuth, Alan R. Hanson, Phil E. Keith, Laura L. Rogers, Jefferson B. Sessions III, United States Department of Justice, Russell Washington, Matthew G. Whitaker. Adding Daniel D. Mauler as counsel of record for Defendants William P. Barr, Matt M. Dummermuth, Phil E. Keith, U.S. Department of Justice for the reason indicated in the G-123 Notice. W. Scott Simpson is no longer counsel of record for the aforementioned party in this case for the reason indicated in the G-123 Notice. Filed by Defendants William P. Barr, Matt M. Dummermuth, Phil E. Keith, U.S. Department of Justice. (Attorney Daniel Mauler added to party Matt M. Dummermuth (pty:dft), Attorney Daniel Mauler added to party Alan R. Hanson(pty:dft), Attorney Daniel Mauler added to party Phil E. Keith (pty:dft), Attorney Daniel Mauler added to party Laura L. Rogers(pty:dft), Attorney Daniel Mauler added to party Jefferson B. Sessions III(pty:dft), Attorney Daniel Mauler added to party United States Department of Justice(pty:dft), Attorney Daniel Mauler added to party Russell Washington(pty:dft), Attorney Daniel Mauler added to party Matthew G. Whitaker(pty:dft))(Mauler, Daniel) (Entered: 05/03/2019)

05/08/2019

103 Notice of Appearance or Withdrawal of Counsel: for attorney Monica Ramirez Almadani counsel for Plaintiff City of Los Angeles. Mnica Ramrez Almadani is no longer counsel of record for the aforementioned party in this case for the reason indicated in the G-123 Notice. Filed by Plaintiff City of Los Angeles. (Almadani, Monica) (Entered: 05/08/2019)

06/14/2019

104 TEXT ONLY ORDER (IN CHAMBERS) by Judge Manuel L. Real. The parties are ORDERED to file a joint status report, on or before June 21, 2019. IT IS SO ORDERED. THERE IS NO PDF DOCUMENT ASSOCIATED WITH THIS ENTRY. (cch) TEXT ONLY ENTRY (Entered: 06/14/2019)

06/21/2019 105

STATUS REPORT pursuant to the Court's June 14, 2019 Order [ECF No. 104] filed by Plaintiff City of Los Angeles. (Kamin, Mitchell) (Entered: 06/21/2019)

07/12/2019 106

OPINION from Ninth Circuit Court of Appeals filed re: Notice of Appeal to 9th Circuit Court of Appeals 78 filed by Russell Washington, United States Department of Justice, Alan R. Hanson, Jefferson B. Sessions III. CCA # 18-55599. The decision of the district court is reversed. (gk) (Entered: 07/15/2019)

08/15/2019

107 Pursuant to General Order 05-07, all discovery-related motions should be noticed for hearing before the assigned magistrate judge. Any pending discovery matters are hereby transferred to the assigned magistrate judge. THERE IS NO PDF DOCUMENT ASSOCIATED WITH THIS ENTRY. (rrey) TEXT ONLY ENTRY (Entered: 08/15/2019)

08/23/2019

108 NOTICE TO COUNSEL AND PARTIES: The Honorable R. Gary Klausner, United States District Judge, will be handling this case pending reassignment. However, all appropriate oral and written communication shall continue to be directed to Christine Chung, Courtroom Deputy Clerk to Judge Real at 213-894-5696. Until reassignment of this case, counsel and parties shall continue to send mandatory chambers copies of all electronically filed documents, to courtroom 880 on the 8th Floor of the Roybal Federal Building and U.S. Courthouse, 255 East Temple Street, Los Angeles, CA 90012, and send proposed orders to R_chambers@cacd.uscourts.gov. THERE IS NO PDF DOCUMENT ASSOCIATED WITH THIS ENTRY. (dbu) TEXT ONLY ENTRY (Entered: 08/23/2019)

08/27/2019 109

ORDER from Ninth Circuit Court of Appeals filed re: Notice of Appeal to 9th Circuit Court of Appeals 78 filed by Russell Washington, United States Department of Justice, Alan R.

Hanson, Jefferson B. Sessions III. CCA # 18-55599. Appellants' motion to expedite issuance of the mandate or to stay injunction pending issuance of the mandate is DENIED. (gk) (Entered: 08/28/2019)

10/31/2019

110 OPINION from Ninth Circuit Court of Appeals filed re: Notice of Appeal to 9th Circuit Court of Appeals 95 filed by Russell Washington, United States Department of Justice, Jefferson B. Sessions III, Laura L. Rogers. CCA # 18-56292. The decision of the district court is affirmed. (gk) (Entered: 11/04/2019)

12/17/2019

111 MANDATE of Ninth Circuit Court of Appeals filed re: Notice of Appeal to 9th Circuit Court of Appeals, 78 , CCA # 18-55599. The judgment of this Court, entered July 12, 2019, takes effect this date. This constitutes the formal mandate of this Court issued pursuant to Rule 41(a) of the Federal Rules of Appellate

Procedure. [See USCA Opinion 106 (Entered: 12/18/2019)

, AFFIRMED.] (mat)

12/20/2019 112

EX PARTE APPLICATION to Vacate Order on Motion for
Partial Summary Judgment,,,,, 75 (Unopposed Ex Parte Application to Dissolve COPS Injunction) filed by Defendants Matt M. Dummermuth, Alan R. Hanson, Phil E. Keith, Laura L. Rogers, Jefferson B. Sessions III, United States Department of Justice, Russell Washington, Matthew G. Whitaker. (Attachments: # 1 Proposed Order) (Mauler, Daniel) (Entered: 12/20/2019)

12/23/2019

113 ORDER by Judge R. Gary Klausner: Pending before the Court is the Defendants' unopposed application to dissolve the injunction related to the competitive federal grant program under the Public Safety Partnership and Community Policing Act for communityoriented policing (the "COPS Program") entered by this Court on

4/11/2018 112 . It appears to the Court that the U.S. Court of Appeals for the Ninth Circuit has reversed the decision that

provided the basis for the injunction 106 and subsequently issued the mandate putting that opinion into effect 111 . As such, it is HEREBY ORDERED that this Court's injunction issued on

4/11/2018 75 is dissolved and vacated, effective immediately. (gk) (Entered: 12/23/2019)

12/31/2019

114 ORDER OF THE CHIEF JUDGE (#19-094) approved by Judge Virginia A. Phillips. IT IS ORDERED, with the concurrence of

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the Case Management and Assignment Committee, that the following cases be reassigned from the calendar of Judge Manuel L. Real to the calendar of Judge Josephine L. Staton for all further proceedings. The case number will now reflect the initials of the transferee Judge 2:17-cv-07215 JLS (JCx). (esa) (Entered: 01/06/2020)
115 INITIAL STANDING ORDER FOR CASES ASSIGNED TO JUDGE JOSEPHINE L. STATON. (tg) (Entered: 01/07/2020)
116 INITIAL STANDING ORDER FOR CASES ASSIGNED TO JUDGE JOSEPHINE L. STATON. (tg) (Entered: 01/07/2020)
117 MANDATE of Ninth Circuit Court of Appeals filed re: Notice of Appeal to 9th Circuit Court of Appeals, 95 , CCA # 18-56292. The judgment of this Court, entered October 31, 2019, takes effect this date. This constitutes the formal mandate of this Court issued pursuant to Rule 41(a) of the Federal Rules of Appellate Procedure. USCA Opinion 110 AFFIRMED.] (mat) (Entered: 01/23/2020)
118 MINUTE (In Chambers) ORDER DIRECTING PARTIES TO FILE JOINT STATUS REPORT by Judge Josephine L. Staton: the Court directs the parties to confer and file a joint status report that sets forth the status of the case and how the parties wish to proceed (cf. Doc. 105). The joint status report shall be filed no later than seven (7) days from the entry of this Order. (jp) (Entered: 02/19/2020)
119 Notice of Appearance or Withdrawal of Counsel: for attorney Joseph J DeMott counsel for Defendants Matt M. Dummermuth, Alan R. Hanson, Phil E. Keith, Laura L. Rogers, Jefferson B. Sessions III, United States Department of Justice, Russell Washington, Matthew G. Whitaker. Adding Joseph J. DeMott as counsel of record for William P. Barr, Matt M. Dummermuth, Phil E. Keith, U.S. Department of Justice for the reason indicated in the G-123 Notice. Daniel Mauler is no longer counsel of record for the aforementioned party in this case for the reason indicated in the G123 Notice. Filed by Defendants William P. Barr, Matt M. Dummermuth, Phil E. Keith, U.S. Department of Justice. (Attorney Joseph J DeMott added to party Matt M. Dummermuth (pty:dft), Attorney Joseph J DeMott added to party Alan R. Hanson(pty:dft), Attorney Joseph J DeMott added to party Phil E. Keith (pty:dft), Attorney Joseph J DeMott added to party Laura L. Rogers(pty:dft), Attorney Joseph J DeMott added to party Jefferson B. Sessions III(pty:dft), Attorney Joseph J DeMott added

to party United States Department of Justice(pty:dft), Attorney Joseph J DeMott added to party Russell Washington(pty:dft), Attorney Joseph J DeMott added to party Matthew G. Whitaker(pty:dft))(DeMott, Joseph) (Entered: 02/25/2020)

02/25/2020

120 STATUS REPORT (JOINT) filed by Plaintiff City of Los Angeles. (Kamin, Mitchell) (Entered: 02/25/2020)

03/06/2020

121 MINUTE (In Chambers) ORDER DIRECTING Parties to Lodge Proposed Permanent Injunction and Judgment by Judge Josephine L. Staton: The parties shall lodge the proposed permanent injunction and the proposed final judgment within fourteen days of the entry of this Order. A word processing version of the proposed order must be emailed to the chambers address. (jp) (Entered: 03/06/2020)

03/20/2020

122 NOTICE OF LODGING filed NOTICE OF LODGING OF [JOINT PROPOSED] PERMANENT INJUNCTION AND FINAL JUDGMENT re Minutes of In Chambers Order/Directive - no proceeding held, 121 (Attachments: # 1 Proposed Order)(Kamin, Mitchell) (Entered: 03/20/2020)

03/20/2020 123

PERMANENT INJUNCTION AND FINAL JUDGMENT by Judge Josephine L. Staton. IT IS HEREBY ORDERED that Defendants are PERMANENTLY ENJOINED the Court now HEREBY ENTERS partial summary judgment in Defendants' favor on Counts Four, Five, and Six of the City's Complaint pursuant to Rule 56 of the Federal Rules of Civil Procedure, and those Counts are DISMISSED WITH PREJUDICE. (MD JS-6, Case Terminated). (jp) (Entered: 03/23/2020)

05/18/2020

124 NOTICE OF APPEAL to the 9th Circuit Court of Appeals filed by all defendants Matt M. Dummermuth, Alan R. Hanson, Phil E. Keith, Laura L. Rogers, Jefferson B. Sessions III, United States Department of Justice, Russell Washington, Matthew G. Whitaker.

Appeal of Permanent Injunction,, Judgment, 123 . (Appeal Fee - Not Required for US Goverment.) (DeMott, Joseph) (Entered: 05/18/2020)

05/21/2020

125 NOTIFICATION from Ninth Circuit Court of Appeals of case number assigned and briefing schedule. Appeal Docket No. 2055545 assigned to Notice of Appeal to 9th Circuit Court of Appeals 124 as to defendants Matt M. Dummermuth, Alan R. Hanson, Phil E. Keith, Laura L. Rogers, Jefferson B. Sessions III, United States Department of Justice, Russell Washington, Matthew G. Whitaker. (jp) (Entered: 05/21/2020)

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126 DESIGNATION of Record on Appeal by Defendants Matt M. Dummermuth, Alan R. Hanson, Phil E. Keith, Laura L. Rogers, Jefferson B. Sessions III, United States Department of Justice, Russell Washington, Matthew G. Whitaker re 124 (DeMott, Joseph) (Entered: 06/04/2020)
127 ORDER from Ninth Circuit Court of Appeals filed re: Notice of Appeal to 9th Circuit Court of Appeals 124 filed by Russell Washington, Matt M. Dummermuth, United States Department of Justice, Laura L. Rogers, Matthew G. Whitaker, Alan R. Hanson, Jefferson B. Sessions III, Phil E. Keith. CCA # 20-55545. These appeals will continue to be held in abeyance. The Clerk is directed to temporarily close the court's dockets for administrative purposes only until 12/31/2020. At any time before 12/31/2020, any party may request that these appeals be reopened. This administrative closure is not a decision on the merits and no mandate will issue in connection with this order. On or before 10/15/2020, counsel are requested to provide the mediator with an email update on the status of related litigation at (stephen_liacouras@ca9.uscourts.gov). (jp) (Entered: 08/05/2020)
128 REQUEST of Ivano Ventresca to Withdraw as Attorney filed by Plaintiff City of Los Angeles. (Ventresca, Ivano) (Entered: 09/02/2020)
129 NOTICE TO FILER OF DEFICIENCIES in Electronically Filed Documents RE: REQUEST of Ivano Ventresca to Withdraw as Attorney 128 . The following error(s) was/were found: (1) Proposed Document was not submitted as separate attachment. (2) Proposed Order should be filed as an attachment to the e-filed Notice of Lodging and e-mailed to Judge Josephine L. Staton generic email addresses a WordPerfect or Microsoft Word version of the document. In response to this notice, the Court may: (1) order an amended or correct document to be filed; (2) order the document stricken; or (3) take other action as the Court deems appropriate. You need not take any action in response to this notice unless and until the Court directs you to do so. (jp) (Entered: 09/04/2020)
130 Notice of Electronic Filing re Deficiency in Electronically Filed Documents (G-112A) - optional html form,, 129 , REQUEST of Ivano Ventresca to Withdraw as Attorney 128 e-mailed to James P. Clark bounced due to The email account that you tried to reach does not exist. The primary e-mail address associated with the attorney record has been deleted. Pursuant to Local Rules it is the attorneys obligation to maintain all personal contact information

09/18/2020

including e-mail address in the CM/ECF system. THERE IS NO PDF DOCUMENT ASSOCIATED WITH THIS ENTRY. (lmh) TEXT ONLY ENTRY (Entered: 09/11/2020)
131 Notice of Electronic Filing re Text Only Bounced Notice of Electronic Filing E-mail,, 130 e-mailed to Ivano M Ventresca at iventresca@cov.com bounced due to invalid email address. The primary e-mail address associated with the attorney record has been deleted. Pursuant to Local Rules it is the attorneys obligation to maintain all personal contact information including e-mail address in the CM/ECF system. THERE IS NO PDF DOCUMENT ASSOCIATED WITH THIS ENTRY. (ir) TEXT ONLY ENTRY (Entered: 09/18/2020)

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Description: Docket Report

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2:17-cv-07215-JLS-JC End date: 3/18/2021

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21

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2.10

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Exempt reason:

Not Exempt

 </s> Case 2:17-cv-07215 Document 1 Filed 09/29/17 Page 1 of 43 Page ID #:1

1 MICHAEL N. FEUER, SBN 111529

MITCHELL A. KAMIN, SBN 202788

2 City Attorney JAMES P. CLARK, SBN 64780
3 Chief Deputy City Attorney

MÓNICA RAMÍREZ ALMADANI, SBN 234893 NEEMA T. SAHNI, SBN 274240

4 LEELA A. KAPUR, SBN 125548 Executive Assistant City Attorney
5 VALERIE L. FLORES, SBN 138572

Covington & Burling LLP 1999 Avenue of the Stars, Suite 3500 Los Angeles, California 90067-4643

6 Managing Senior Assistant City Attorney mkamin@cov.com

MICHAEL DUNDAS, SBN 226930

Telephone: (424) 332-4800

7 Deputy City Attorney

Facsimile: (424) 332-4749

8 200 North Main Street, City Hall East

9

Suite 800 Los Angeles, California 90012

DAVID M. ZIONTS, pro hac vice application forthcoming

10 james.p.clark@lacity.org

11

Telephone: (213) 978-8344 Facsimile: (213) 978-8312

IVANO M. VENTRESCA, pro hac vice application forthcoming Covington & Burling LLP

12

One CityCenter

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850 Tenth Street NW Washington, DC 20001

14

dzionts@cov.com

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Telephone: (202) 662-6000 Facsimile: (202) 662-5987

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17 Attorneys for Plaintiff City of Los Angeles

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UNITED STATES DISTRICT COURT

19

FOR THE CENTRAL DISTRICT OF CALIFORNIA

20

21 CITY OF LOS ANGELES,

22

Plaintiff,

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v.

25 JEFFERSON B. SESSIONS, III, in his

26

official capacity as Attorney General of the United States; ALAN R. HANSON, in his

27 official capacity as Acting Assistant

28 Attorney General of the Office of Justice

Case No.:
COMPLAINT FOR DECLARATORY AND INJUNCTIVE RELIEF

DC: 6531683-8

COMPLAINT

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1 Programs; RUSSELL WASHINGTON, in 2 his official capacity as Acting Director of
the Office of Community Oriented Policing 3 Services; UNITED STATES 4 DEPARTMENT OF JUSTICE.

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Defendants.

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COMPLAINT

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1

INTRODUCTION

2

1. In this Complaint, the City of Los Angeles seeks declaratory and injunctive

3 relief to prevent an arm of the Executive Branch of the United States Government from

4 unconstitutionally seeking to wield authority it does not have to advance policy

5 objectives it cannot lawfully effectuate—all at the potential expense of public safety and

6 community trust in Los Angeles and other communities.

7

2. Ironically, the offending edicts issue from the United States Department of

8 Justice (“DOJ” or “Department”), which seeks unconstitutionally to impose terms on two

9 grants enacted by Congress: one a formula-based program to assist state and local

10 criminal justice programs, the other a program to fund state and local community policing

11 efforts, including by putting more officers on the streets. As a consequence, DOJ puts the

12 City of Los Angeles—and other state and local government entities—to an untenable

13 choice: commit to participating in federal civil immigration investigation and

14 enforcement efforts, or sacrifice funds for public safety and community policing.

15

3. The funds at issue are part of the Edward Byrne Memorial Justice Assistance

16 Grant (“Byrne JAG”) Program and the Community Oriented Policing Services (“COPS”)

17 Program.

18

The Byrne JAG Program

19

4. Congress established the Byrne JAG Program specifically to fund

20 “additional personnel, equipment, supplies, contractual support, training, technical

21 assistance, and information systems for criminal justice.” 34 U.S.C. § 10152(a)(1).

22 Byrne JAG grants are awarded through a statutory formula based on population and

23 crime rates. They are administered by a component of DOJ, the Office of Justice

24 Programs, Bureau of Justice Assistance.

25

5. Nothing in the Byrne JAG legislation that Congress enacted permits DOJ to

26 require, as a condition for receiving those federal funds, that recipients change policies

27 and the operation of their programs and facilities to afford federal civil immigration

28 officials access to local jails for federal civil immigration purposes. Likewise, Congress,

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1 in the Byrne JAG legislation, did not give DOJ authority to cause recipients to provide

2 advance notice to federal immigration officials before an arrestee is released from

3 custody. To the contrary, DOJ’s terms subvert Congress’s intent in fashioning the

4 program.

5

The COPS Program

6

6. The COPS Program was designed to fund a range of community policing

7 efforts, from hiring and rehiring new law enforcement officers to funding school-based

8 partnerships between local law enforcement and schools. 34 U.S.C. § 10381(b)(1)-(22).

9 DOJ’s Office for Community Oriented Policing Services (“COPS Office”) administers

10 this Program. Congress authorized the Attorney General to give preferential

11 consideration to applicants with laws concerning the treatment of human trafficking

12 victims and who agreed to contribute more than the required minimum matching

13 contribution for certain grants. Id. § 10381(c). This preferential consideration takes the

14 form of “bonus points” awarded to applicants applying for COPS grants. The Program at

15 issue here awards grants for the hiring or rehiring of law enforcement officers. See 2017

16 COPS Hiring Program (“CHP”) Application Guide.1

17

7. As with the Byrne JAG Program, DOJ seeks to insert new terms (this time it

18 calls them “additional considerations”) into the COPS grant program, designed to affect

19 the distribution of COPS awards. The result of these additional considerations would be

20 to favor those applicants that agree to engage in federal civil immigration investigations

21 and enforcement and to disfavor those applicants that focus on the community policing

22 purposes of the COPS statute, but do not agree to act as agents of DOJ in enforcing

23 federal civil immigration law. As with the Byrne JAG conditions, DOJ’s actions with

24 respect to the COPS program are unauthorized and incompatible with the statute.

25

Constitutionality

26

8. Whether called “conditions” or “considerations,” the new immigration-

27

28 1 Available at https://cops.usdoj.gov/pdf/2017AwardDocs/chp/app_guide.pdf.

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1 related terms DOJ has attached to both the Byrne JAG and COPS Programs are facially

2 unconstitutional. First, they violate the constitutional doctrine of Separation of Powers.

3 The constitutional authority to spend government money, and (with constitutional

4 limitations) to attach terms and conditions to the receipt of federal funds, belongs to

5 Congress, not the Executive Branch. An agency of the Executive Branch may not

6 unilaterally impose terms and conditions on federal grants in the absence of a specific and

7 unambiguous delegation from Congress, which has not occurred with respect to either of

8 the Byrne JAG or COPS Programs. On this basis alone, the new Byrne JAG conditions

9 and COPS considerations violate the Constitution.

10

9. In addition, DOJ’s actions offend the basic Separation of Powers principle

11 that an Executive Branch agency has no power to act unless Congress has conferred on it

12 authority to do so. DOJ’s new terms are not authorized by, and indeed are incompatible

13 with, the statutes Congress enacted to establish the Byrne JAG Program and the COPS

14 Program. The Byrne JAG conditions cannot be reconciled with Congress’s directive that

15 funds be allocated through an explicit funding formula. DOJ’s conditions also would

16 flout Congress’s express directive that Byrne JAG funds be used only for one or more of

17 eight specified criminal justice programs, by redirecting those funds to efforts by state

18 and local law enforcement that participate in federal civil immigration investigations.

19 Indeed, one court has already found it likely that DOJ’s efforts to impose the conditions

20 on the Byrne JAG grants “violate the separation of powers doctrine and are ultra vires.”

21 City of Chicago v. Sessions, 2017 WL 4081821 (N.D. Ill. Sept. 15, 2017), appeal filed.

22

10. Similarly, the new COPS considerations are not among the three preferential

23 considerations that Congress authorized the Attorney General to take into account in

24 awarding COPS grants, nor are they related to any of the twenty-two purposes for which

25 COPS grants may be awarded.

26

11. The new terms would also contravene Congress’s statutory mandate that the

27 Byrne JAG and COPS Programs not empower any federal agency or officer to exercise

28 any direction or control over a local police force.

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1

12. Second, even if the new terms had been imposed by Congress, they would

2 be unconstitutional under the Spending Clause and Tenth Amendment to the United

3 States Constitution, which limit the power of the federal government to affect funding to

4 the States (and their municipalities) regarding matters of law and policy that are properly

5 reserved to the States.

6

13. When Congress attaches new terms to federal funds, it must meet several

7 requirements to ensure that it is not abusing the spending power to improperly regulate

8 and commandeer state and local officials. Terms that Congress places on federal funding

9 must be unambiguous, so state and local governments know to what they are agreeing.

10 Here, however, DOJ’s terms, by whatever name DOJ calls them, exceed federal Spending

11 Clause authority because Los Angeles cannot know what is expected of it, as set forth in

12 detail below.

13

14. The constitutional defects in DOJ’s conditions and considerations run even

14 deeper. Another important limit on the Spending Clause is that terms Congress imposes

15 on the use by a State or local government of federal funds must be sufficiently related to

16 the purpose of those funds. Congress’s express purpose for creation of the Byrne JAG

17 Program was to fund local criminal justice programs, specifically one or more of the

18 eight types of programs listed in the statute. For the COPS Program, Congress specified

19 twenty-two purposes related to community policing. DOJ’s new conditions and

20 considerations do not relate to those purposes, but rather attempt to use the Byrne JAG

21 and COPS Programs to induce communities to engage in federal civil immigration

22 investigations and enforcement.

23

15. Additionally, in promulgating these conditions and considerations, DOJ did

24 not rely on any analysis or findings to support the implicit premise that individuals whom

25 DHS believes may be unlawfully present in the United States commit more crime than do

26 individuals legally resident in the United States. In fact, there is substantial evidence to

27 the contrary. For this reason, DOJ’s attempt to attach the new terms to these grant

28 programs is arbitrary and capricious in violation of the Administrative Procedure Act.

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1

16. In short, DOJ’s unilateral and unauthorized attempt to hold hostage federal

2 funding that Congress authorized to assist state and local criminal justice programs and

3 local community policing efforts, to cause state and local agencies to assist with federal

4 civil immigration investigations, is unconstitutional and unlawful, and cannot be allowed

5 to stand.

6

JURISDICTION AND VENUE

7

17. This Court has jurisdiction under 28 U.S.C. § 1331 (federal question). The

8 Court also has authority to award declaratory and injunctive relief pursuant to 28 U.S.C.

9 §§ 2201–2202.

10

18. Venue is proper in this District under 28 U.S.C. § 1391(e) because Plaintiff

11 resides in this District and a substantial part of the events or omissions giving rise to this

12 action occurred in this District.

13

PARTIES

14

19. Plaintiff City of Los Angeles (“City” or “Los Angeles”) is a municipal

15 corporation organized and existing under the laws of the State of California, and is a

16 charter city pursuant to Article XI of the California Constitution.

17

20. Defendant Jefferson B. Sessions, III, is the Attorney General of the United

18 States. The Attorney General is charged with the administration and enforcement of

19 federal criminal law and policy, and oversees the U.S. Department of Justice, which

20 administers the Edward Byrne Memorial Justice Assistance Grant (“Byrne JAG”)

21 Program and the Community Oriented Policing Services (“COPS”) Program. Defendant

22 Sessions has supervisory responsibility and is sued in his official capacity.

23

21. Defendant U.S. Department of Justice is an agency of the United States.

24 The Bureau of Justice Assistance (“BJA”) is a component of the Office of Justice

25 Programs of DOJ (“OJP”). BJA’s stated mission is “to provide leadership and services in

26 grant administration and criminal justice policy development to support local, state, and

27 tribal justice strategies to achieve safer communities.” BJA administers the Byrne JAG

28 Program. The Office of Community Oriented Policing Services is also a component

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1 within DOJ. The COPS Office is “responsible for advancing the practice of community

2 policing by the nation’s state, local, territorial, and tribal law enforcement agencies

3 through information and grant resources.” The COPS Office administers the COPS

4 grants.

5

22. Defendant Alan Hanson is the Acting Assistant Attorney General for the

6 Office of Justice Programs at DOJ and oversees BJA. Defendant Hanson has supervisory

7 responsibility and is sued in his official capacity.

8

23. Defendant Russell Washington is the Acting Director for the COPS Office at

9 DOJ. He oversees the COPS Office, which administers the COPS grants. Defendant

10 Washington has supervisory responsibility and is sued in his official capacity.

11

FACTUAL ALLEGATIONS

12

A. Policies and Practices of the City of Los Angeles’ Police Department

13

24. For nearly four decades, the Los Angeles Police Department (“LAPD”) has

14 implemented policies and practices designed to promote the public safety of all Los

15 Angeles residents by engendering cooperation and trust between members of the City’s

16 many immigrant communities and law enforcement. The fundamental goal of these local

17 policies and practices has been to encourage victims of and witnesses to crime to

18 cooperate with LAPD, irrespective of their immigration status. Central to these policies

19 has been the determination by local law enforcement and its civilian overseers to leave

20 federal civil immigration investigations and enforcement to the federal government.

21

25. For example, in 1979, LAPD began a policy—adopted by the Los Angeles

22 Board of Police Commissioners and signed by then-Chief of Police Daryl Gates—that

23 restricts an officer from initiating a police action with the objective of discovering a

24 person’s immigration status, and also prohibits arrests based solely on civil immigration

25 status.

26

26. This policy, known as Special Order 40, resulted in the addition of Section

27 1/390 (Undocumented Aliens) to the LAPD Manual, and an amendment to Section

28 4/264.50 of the Manual (Enforcement of United States Immigration Laws). Section

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1 1/390 provides that “[u]ndocumented alien status in itself is not a matter for police

2 action,” and proclaims that LAPD personnel are required to enforce the law and serve

3 members of the public equally without regard to immigration status. Section 1/390 also

4 recognizes that its policy encourages participation by undocumented persons in police

5 activities and investigations, which increases LAPD’s ability to protect and serve the

6 entire community.

7

27. Manual Section 4/264.50 provides that “[o]fficers shall not initiate police

8 action where the objective is to discover the alien status of a person.” This section also

9 specifies that “[o]fficers shall neither arrest nor book persons for violation of Title 8,

10 Section 1325 of the United States Immigration Code (Illegal Entry).”

11

28. The LAPD policies promulgated by Special Order 40 are compliant with

12 existing federal law. In the 2009 case, Sturgeon v. Bratton, the California Court of

13 Appeal rejected a legal challenge to Special Order 40—as set forth in Section 4/264.50 of

14 the LAPD Manual—ruling that the language of the policy does not conflict with 8 U.S.C.

15 § 1373 (“Section 1373”), and is not invalid. As the Court of Appeal recognized, Section

16 1373 addresses certain communications between federal and state or local authorities;

17 Special Order 40 does not address that issue, but rather prohibits police officers from

18 initiating police action to determine immigration status and making arrests for illegal

19 entry. 174 Cal. App. 4th 1407 (Cal. Ct. App. 2009). It has nothing to do with

20 communications between LAPD and federal authorities.

21

29. In 2014, LAPD adopted a practice of refusing to detain individuals,

22 otherwise eligible for release from custody under state law, on the basis of requests from

23 U.S. Immigration and Customs Enforcement (“ICE”). LAPD does not detain individuals

24 in response to such requests unless they are supported by a judicial determination of

25 probable cause, or a valid warrant from a judicial officer. This practice was developed in

26 response to judicial decisions declaring compliance with such ICE requests to be

27 unconstitutional, and also potentially subjecting LAPD to significant liability for

28 violations of the Fourth Amendment. See, e.g., Miranda-Olivares v. Clackamas County,

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1 2014 WL 1414305, at *11 (D. Or. Apr. 11, 2014).

2

30. When a member of LAPD arrests an individual in connection with a

3 criminal offense, the arrestee may be cited and released in the field, or taken to one of

4 LAPD’s ten jail detention facilities for booking. Those LAPD jail facilities are all

5 categorized by the State of California as Type I facilities, which are local detention

6 facilities used for the temporary, short-term detention of persons who may be held for no

7 more than 96 hours. In practice, persons arrested by members of LAPD generally are

8 kept in LAPD custody for no more than 48 hours after arrest because of the limitations

9 imposed by state law and the Constitution with respect to the period of time within which

10 law enforcement agencies must: 1) obtain a probable cause determination that an arrested

11 individual committed a criminal offense to support the detention of the individual without

12 a warrant; and 2) transfer a detainee to court for arraignment. See Cal. Pen. Code § 825;

13 Cty. of Riverside v. McLaughlin, 500 U.S. 44 (1991).

14

31. In many situations, arrestees are eligible for release from custody within a

15 few hours of arrest and booking, including by posting bail or bond, on their own

16 recognizance, or by a certificate of release.

17

32. While arrestees are in LAPD custody, LAPD permits DHS and ICE

18 personnel access to LAPD detention facilities to interview individual arrestees regarding

19 civil immigration status. LAPD does so consistent with the state statutory requirement

20 that such persons be provided with advance written notice explaining the purpose of the

21 interview, that the interview is voluntary, and that the person may decline to speak or opt

22 to be interviewed only in the presence of his or her attorney. See California TRUTH Act,

23 Cal. Gov. Code § 7283 et seq. (“California TRUTH Act”). LAPD implements this state

24 law by obtaining a written expression of the arrestee’s willingness prior to any such

25 interview. If the arrestee declines the interview, LAPD does not provide DHS and ICE

26 personnel access to its facilities in order to interview that individual.

27

B. The Edward Byrne Memorial Justice Assistance Grant Program

28

33. Congress established the Byrne JAG Program to fund “additional personnel,

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1 equipment, supplies, contractual support, training, technical assistance, and information

2 systems for criminal justice.” 34 U.S.C. § 10152(a)(1). Congress specified that these

3 funds be used “for any one or more of the following programs”:

4

• “Law enforcement programs.”

5

• “Prosecution and court programs.”

6

• “Prevention and education programs.”

7

• “Corrections and community corrections programs.”

8

• “Drug treatment and enforcement programs.”

9

• “Planning, evaluation, and technology improvement programs.”

10

• “Crime victim and witness programs (other than compensation).”

11

• “Mental health programs and related law enforcement and corrections

12

programs, including behavioral programs and crisis intervention teams.”

13 34 U.S.C. § 10152(a)(1)(A)-(H).

14

34. Byrne JAG funding is administered by BJA within the U.S. Department of

15 Justice’s Office of Justice Programs. See 34 U.S.C. §§ 10151-58. Each fiscal year, BJA

16 selects state and local government awardees to receive funds that, in general, may be used

17 over a period of four years.

18

35. In awarding funds, BJA employs a congressional formula to allocate funds

19 to eligible States and local governments. By statute, funding is allocated based on two

20 factors: population and rate of violent crime. The Attorney General must allocate 50

21 percent of the available funds to each State in amounts proportionate to its population and

22 its crime statistics. Id. § 10156(a). The remaining 50 percent of the funds is allocated to

23 each State in amounts proportionate to its rate of violent crime. Id. Of the total amount

24 allocated to a State, 60 percent is provided as a direct grant to the State, and 40 percent as

25 grants for local governments. Id. § 10156(b)(2), (d).

26

36. Local governments wishing to receive a grant must submit an award

27 application to BJA. In order to be eligible for an award, an applicant must furnish certain

28 certifications and assurances related to the application or administration of the grant, or

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1 use of the grant funds. Specifically, Congress enumerated two certifications and three

2 assurances that an applicant must make:

3

• “A certification that Federal funds made available under this part will not be

4

used to supplant State or local funds, but will be used to increase the

5

amounts of such funds that would, in the absence of Federal funds, be made

6

available for law enforcement activities.” 34 U.S.C. § 10153(a)(1).

7

• “An assurance that, not fewer than 30 days before the application (or any

8

amendment to the application) was submitted to the Attorney General, the

9

application (or amendment) was submitted for review to the governing body

10

of the State or unit of local government (or to an organization designated by

11

that governing body).” Id. § 10153(a)(2).

12

• “An assurance that, before the application (or any amendment to the

13

application) was submitted to the Attorney General (A) the application (or

14

amendment) was made public; and (B) an opportunity to comment on the

15

application (or amendment) was provided to citizens and to neighborhood or

16

community-based organizations, to the extent applicable law or established

17

procedure makes such an opportunity available.” Id. § 10153(a)(3).

18

• “An assurance that, for each fiscal year covered by an application, the

19

applicant shall maintain and report such data, records, and information

20

(programmatic and financial) as the Attorney General may reasonably

21

require.” Id. § 10153(a)(4).

22

• “A certification . . . that (A) the programs to be funded by the grant meet all

23

the requirements of this part; (B) all the information contained in the

24

application is correct; (C) there has been appropriate coordination with

25

affected agencies; and (D) the applicant will comply with all provisions of

26

this part and all other applicable Federal laws.” Id. § 10153(a)(5).

27

37. Byrne JAG applications are accepted through an online program. In order to

28 complete the application, a representative of the applicant is required to electronically

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1 sign a page stating that the applicant will comply with standard “assurances” promulgated

2 by the Office of Management and Budget. These assurances include that, “throughout

3 the period of performance for the award,” “the Applicant will comply with all award

4 requirements.”

5

38. When BJA grants an application for a Byrne JAG award, BJA requires the

6 recipient to agree to an additional set of “Special Conditions.” These conditions

7 generally relate to the administration of the grant or the use of grant funds. The “Special

8 Conditions” imposed in Los Angeles’ fiscal year (“FY”) 2016 grant award governed

9 various aspects of how the City would be required to administer its Byrne JAG award,

10 such as a “[r]equirement for data on performance and effectiveness under the award,”

11 “[r]equirements related to System for Award Management and Unique Entity

12 Identifiers,” compliance with civil rights and nondiscrimination regulations in the

13 administration of the award, and reporting of any fraud, waste, and abuse in the award

14 implementation.

15

C. The City of Los Angeles Uses Byrne JAG Funds For Critical Local Law

16

Enforcement Needs

17

39. Each year since 1997, the City of Los Angeles has received more than $1

18 million in funding under the Byrne JAG Program (and its predecessor). Every year that

19 Los Angeles has applied for Byrne JAG funds, it has been approved for funding.

20

40. In the FY 2016 application cycle, Los Angeles applied for and received

21 approximately $1.8 million in Byrne JAG funding for FY 2016 through FY 2019. 22 Approximately $800,000 of the funding went to the County of Los Angeles as a sub23 grantee, and $1 million remained with the City. For FY 2016, Los Angeles received its

24 funding directly from the federal government as part of a formula grant, see 34 U.S.C. 25 § 10156(d), not as a distribution from the Byrne JAG funds awarded separately to the 26 State of California.

27

41. Byrne JAG funds support important criminal justice programs in Los

28 Angeles. Specifically, the City’s FY 2016 Byrne JAG funds assist in funding its

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1 Community Law Enforcement and Recovery (“CLEAR”) program, which aims to reduce

2 gang violence in Los Angeles and rehabilitate communities that have experienced

3 significant criminal activity. Through effective collaboration among several city, county,

4 and state criminal justice agencies, the program targets high crime areas and promotes

5 community recovery by working closely with special criminal investigative units, an

6 aggressive vertical prosecutorial program, probation and parole officers, youth

7 intervention organizations, and schools.

8

42. The CLEAR program has been successful. In 2014, the CLEAR program

9 areas had 22 percent less gang crime over a three-year period than similar non-CLEAR

10 areas. For FY 2016, the Byrne JAG funds supported 20 to 30 percent of the salaries for

11 nine Deputy City Attorneys, nine Deputy District Attorneys, and nine Deputy Probation

12 officers related to the CLEAR program.

13

43. The City’s use of Byrne JAG funds to support the CLEAR program and

14 reduce violent crime advances the core criminal justice mission of the Byrne JAG

15 Program. The CLEAR program’s key to success in reducing violent crime in targeted

16 neighborhoods has been the dedication of various agency assets to the goal of reducing

17 crime in CLEAR sites. Each CLEAR site includes an operational team made up of

18 representatives from LAPD, the County District Attorney’s Office, the City Attorney’s

19 Office, and the County Probation Department. In addition to their focus on reducing

20 crime, the CLEAR team members collaborate with residents within each CLEAR site

21 through the creation of a Community Impact Team. The Community Impact Team’s

22 focus is specifically on quality of life issues such as graffiti, litter, and juvenile loitering.

23 Community members on the team identify effective community organizations in their

24 CLEAR area and facilitate a relationship between those organizations and CLEAR team

25 members to secure support from individuals and businesses within the community.

26

44. The year-over-year federal funding for the CLEAR program has been a

27 catalyst for turning Los Angeles into a leader on coordinated approaches to seemingly

28 intractable issues related to violent crime in general, and gang-related violence in

12
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1 particular. The CLEAR model was innovative and went beyond the traditional methods

2 of criminal suppression. It combined, in one program, elements which have been copied

3 by numerous other jurisdictions, and are now a common approach to addressing not only

4 gang violence but violent crimes generally. These elements, such as vertical prosecution

5 of all cases, regular sharing of best practices from public safety teams in various parts of

6 the City, and community outreach, have significantly informed the creation of other

7 innovative approaches to criminal justice in the City, such as the City Attorney’s

8 neighborhood prosecutor program.

9

45. If the City of Los Angeles were to lose its Byrne JAG funding, it would be

10 deprived of valuable resources that enhance Los Angeles’ local criminal law enforcement

11 efforts and advance public safety. Continued Byrne JAG funding ensures that the

12 CLEAR staff can continue to dedicate their time to their roles within the CLEAR team.

13 The funding also ensures that a continued dedication to cross-agency collaboration will

14 pave the way for future successes and innovations still to come.

15

D. Defendants’ Announcement Of Federal Civil Immigration-Related

16

Conditions For State And Local Government Receipt of Byrne JAG

17

Funding

46. President Donald J. Trump has declared that he would use federal funds as a

18

“weapon” to require state and local support for his civil immigration enforcement

19

policies.2 On January 25, 2017, President Trump issued Executive Order 13768 directing

20

the Attorney General and Secretary of Homeland Security to withhold federal funds from

21

what he called “Sanctuary Jurisdictions.”3 On April 25, 2017, a federal district court

22

enjoined Section 9(a) of the Executive Order, ruling that the plaintiff jurisdictions in that

23

24

25 2 Harriet Taylor, Trump to Fox News: “I may defund California as ‘a weapon’ to fight

26 illegal immigration,” CNBC.com (Feb. 5, 2017), https://tinyurl.com/TaylorCNBC.

27

3 The White House Office of the Press Secretary, “Executive Order: Enhancing the Public Safety on the Interior of the United States,” Whitehouse.gov (January 25, 2017), §

28 9(a), available at https://tinyurl.com/EO13768.

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1 case are likely to succeed on their claims that the order is unconstitutional because the

2 Executive Branch is usurping authority that belongs to Congress under the Spending

3 Clause; the order violates constitutional limits on federal spending authority; the order

4 violates the Tenth Amendment’s prohibition against the federal government

5 commandeering local jurisdictions to administer a federal regulatory program; the order

6 is unconstitutionally vague; and the order violates requirements of due process. Cty. of

7 Santa Clara v. Donald J. Trump; City and Cty. of San Francisco v. Trump, 2017 WL

8 1459081 (N.D. Cal. Apr. 25, 2017), appeal filed No. 17-16886 (9th Cir. Sept. 18, 2017).

9

47. In a July 25, 2017, press release, the Attorney General announced

10 “immigration compliance requirements” that BJA would be imposing on Byrne JAG

11 applicants to render certain jurisdictions ineligible for funds if they did not change their

12 policies and operations.4 The Byrne JAG Press Release explained that, “[f]rom now on,

13 the Department will only provide Byrne JAG grants to cities and states that comply with

14 federal law, allow federal immigration access to detention facilities, and provide 48

15 hours’ notice before they release an illegal alien wanted by federal authorities.”

16 Defendant Sessions further stated that the conditions were intended to encourage

17 jurisdictions that he described as “sanctuary jurisdictions” to change their policies and

18 operations.

19

48. The Byrne JAG Press Release was accompanied by a one-page “Byrne JAG

20 Grant Policy Backgrounder” that was “attributable to a DOJ official.”5 The

21

22 4 Department of Justice Office of Public Affairs, “Attorney General Sessions Announces

23 Immigration Compliance Requirements for Edward Byrne Memorial Justice Assistance

24

Grant Programs,” Justice.gov (July 25, 2017), available at https://www.justice.gov/opa/pr/attorney-general-sessions-announces-immigration-

25 compliance-requirements-edward-byrne-memorial (“Byrne JAG Press Release”)

26 (attached hereto as Exhibit 1).

27

5 Department of Justice, Backgrounder on Grant Requirements, available at https://www.justice.gov/opa/press-release/file/984346/download (“Backgrounder”)

28 (attached hereto as Exhibit 2).

14
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Case 2:17-cv-07215 Document 1 Filed 09/29/17 Page 17 of 43 Page ID #:17

1 Backgrounder provides that States and local governments will be required to satisfy three

2 conditions in order to receive Byrne JAG funding. First, they must “certify compliance

3 with section 1373, a federal statute applicable to state and local governments that

4 generally bars restrictions on communications between state and local agencies and

5 officials at the Department of Homeland Security” (the “Section 1373 Condition”).

6 Section 1373 pertains to providing information regarding the “citizenship or immigration

7 status, lawful or unlawful,” of an individual. 8 U.S.C. § 1373. Second, Byrne JAG

8 funding recipients must permit Department of Homeland Security (“DHS”) personnel to

9 “access any detention facility in order to meet with an alien and inquire as to his or her

10 right to be or remain in the United States” (the “Access Condition”). Third, Byrne JAG

11 funding recipients must “provide at least 48 hours advance notice to DHS regarding the

12 scheduled release date and time of an alien in the jurisdiction’s custody when DHS

13 requests such notice in order to take custody of the alien” (the “Notice Condition”).6

14

49. Neither the Byrne JAG Press Release nor the Backgrounder provides a

15 colorable justification for the Access Condition or the Notice Condition. And neither

16 document explains how the purpose of the Byrne JAG Program to provide federal

17 funding to criminal justice programs at the state and local level relates to the new

18 conditions, which instead are directed to facilitating efforts by DHS to investigate the

19 federal civil immigration status of individuals.

20

50. The sole rationale provided for the new grant conditions is an unsupported

21 assertion in the Byrne JAG Press Release that the new conditions are “part of

22 accomplishing the Department of Justice’s top priority of reducing violent crime.” See

23 Byrne JAG Press Release. But no evidence is cited in either the Byrne JAG Press

24 Release or the Backgrounder to support the implied premise that undocumented

25 immigrants or other non-citizens commit violent crimes at higher rates than the general

26

27 6 The Access Condition and Notice Condition are phrased differently in the 28 Backgrounder and the Byrne JAG Press Release. See supra ¶¶ 47-48.

15
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Case 2:17-cv-07215 Document 1 Filed 09/29/17 Page 18 of 43 Page ID #:18

1 population, or to indicate that the investigation of federal civil immigration status of

2 individuals pursuant to the new DOJ conditions is focused on individuals involved in

3 violent crime.

4

51. Defendant Sessions did deliver a speech on July 12, 2017, to law

5 enforcement personnel in which he cited a University of California Riverside study for

6 the proposition that cities with sanctuary policies “have more violent crime on average

7 than those that don’t,”7 but the authors of that study immediately disputed the Attorney

8 General’s characterization of their research.8 They clarified that their study showed there

9 was no relationship between a city’s so-called “sanctuary” policies and that city’s crime

10 rate.9 One of the authors explained: “All of the data to date suggests that either there’s no

11 relationship, which is what our study found, or there’s an inverse relationship.”10

12

E. DOJ’s Imposition Of New Federal Civil Immigration-Related

13

Conditions In The Agency’s Solicitation For Grant Applications for FY

14

2017 Byrne JAG Awards

15

52. BJA implemented the Attorney General’s announcement by including the

new DOJ conditions in its solicitations for the current Byrne JAG application cycle. On

16

17

18 7 U.S. Department of Justice Office of Public Affairs, “Attorney General Jeff Sessions 19 Delivers Remarks in Las Vegas to Federal, State and Local Law Enforcement About
Sanctuary Cities and Efforts to Combat Violent Crimes,” Justice.gov (July 12, 2017), 20 available at https://www.justice.gov/opa/speech/attorney-general-jeff-sessions-delivers21 remarks-las-vegas-federal-state-and-local-law.

22 8 Nick Roll, Correcting Jeff Sessions, INSIDE HIGHER ED (July 17, 2017), available at https://www.insidehighered.com/news/2017/07/17/academics-push-back-against-
23 attorney-generals-misrepresentation-their-study.

24 9 Loren Collingwood, Benjamin Gonzalez-O’Brien and Stephen El-Khatib, Sanctuary

25

cities do not experience an increase in crime, THE WASHINGTON POST (Oct. 3, 2016), available at https://www.washingtonpost.com/news/monkey-

26 cage/wp/2016/10/03/sanctuary-cities-do-not-experience-an-increase-in-crime.

27 10 Roll, supra note 7.

28

16
COMPLAINT

Case 2:17-cv-07215 Document 1 Filed 09/29/17 Page 19 of 43 Page ID #:19

1 August 3, 2017, BJA solicited applications from local governments for FY 2017 Byrne

2 JAG grants. The agency’s solicitation, attached hereto as Exhibit 3, states that applicants

3 must certify compliance with Section 1373 in order to qualify for Byrne JAG funding.11

4 A Byrne JAG application will not be considered by the agency to be complete without

5 that certification.

6

53. Separately, the agency’s solicitation states that individual awards “will

7 include two new express conditions.” These conditions “are designed to ensure” that

8 local governments that receive JAG funds:

9

a. “permit personnel of the U.S. Department of Homeland Security (DHS) to

10

access any correctional or detention facility in order to meet with an alien (or

11

an individual believed to be an alien) and inquire as to his or her right to be

12

or remain in the United States”; and

13

b. “provide at least 48 hours’ advance notice to DHS regarding the scheduled

14

release date and time of an alien in the jurisdiction’s custody when DHS

15

requests such notice in order to take custody of the alien pursuant to the

16

Immigration and Nationality Act.”

17

54. The agency’s solicitation states that these two new conditions (the

18 “Challenged Conditions”) “will be an authorized and priority purpose of the award,” even

19 though the purposes specified by Congress for the Byrne JAG awards did not include

20 federal civil immigration investigation or enforcement activities. Indeed, none of the

21 program priorities set by Congress contemplate federal civil immigration activities. The

22 agency’s solicitation also specifies that the costs of complying with these “requirements”

23 are “allowable costs under the award.” The solicitation further provides that “all award

24 conditions” are included in the “award requirements”—that is, the same requirements that

25

26 11 Bureau of Justice Assistance, Office of Justice Programs, U.S. Department of Justice,

27

“Edward Byrne Memorial Justice Assistance Grant Program: FY 2017 Local Solicitation,” available at https://www.bja.gov/Funding/JAGLocal17.pdf

28 (“Solicitation”).

17
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Case 2:17-cv-07215 Document 1 Filed 09/29/17 Page 20 of 43 Page ID #:20

1 an applicant must agree to abide by in submitting its application. See ¶ 38.

2

F. DOJ’s Modification Of Its Federal Civil Immigration-Related Funding

3

Conditions In Response To Litigation.

4

55. After DOJ announced its new federal immigration-related conditions and

5 included them in the agency’s Byrne JAG solicitation, a number of jurisdictions filed

6 lawsuits challenging these conditions.

7

56. In response, DOJ represented in litigation that it had changed the conditions.

8 Claiming that the “express new conditions” it had defined as “award requirements” in the

9 agency’s solicitation in fact were not intended to represent the actual conditions, DOJ

10 promulgated different versions in an award issued to the County of Greenville, South

11 Carolina (“Greenville Award”), attached hereto as Exhibit 4. DOJ submitted that award

12 to a federal court as an example and represented to that court that the same language

13 would be used in other awards. Notwithstanding that the agency’s solicitation treats the

14 new conditions as “award requirements,” DOJ represented in court that applicants

15 actually would not be required to confirm compliance with the conditions until after

16 receiving an award.

17

57. The Greenville Award states that, “as of the date the recipient accepts [its]

18 award,” the recipient must have in place a “a local ordinance, -rule, -regulation, -policy,

19 or -practice (or an applicable State statute, -rule, -regulation, -policy, or -practice) that is

20 “designed to ensure” that:

21

a. “agents of the United States acting under color of federal law in fact are

22

given access [to] a local-government (or local-government-contracted)

23

correctional facility for the purpose of permitting such agents to meet with

24

individuals who are (or are believed by such agents to be) aliens and to

25

inquire as to such individuals’ right to be or remain in the United States”

26

(the revised “Access Condition”); and

27

b. “when a local-government (or local-government contracted) correctional

28

facility receives from DHS a formal written request authorized by the

18
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Case 2:17-cv-07215 Document 1 Filed 09/29/17 Page 21 of 43 Page ID #:21

1

Immigration and Nationality Act that seeks advance notice of the scheduled

2

release date and time for a particular alien in such facility, then such facility

3

will honor such request and — as early as practicable (see ‘Rules of

4

Construction’ incorporated by para. 4.B. of this condition) — provide the

5

requested notice to DHS.” (the revised “Notice Condition”).

6 Greenville Award, ¶ 56(1) (emphasis added).

7

58. In addition, the “Rules of Construction” referenced in the Notice Condition

8 state: “Nothing in this condition shall be understood to authorize or require any recipient,

9 any subrecipient at any tier, any State or local government, or any other entity or

10 individual to maintain (or detain) any individual in custody beyond the date and time the

11 individual would have been released in the absence of this condition.” Id. ¶¶ 55-56, at

12 Para. 4.B.

13

59. The Rules of Construction also state: “Current DHS practice is ordinarily to

14 request advance notice of scheduled release ‘as early as practicable (at least 48 hours, if

15 possible).’ (See DHS Form I-247A (3/17)). In the event that (e.g., in light of the date

16 DHS made such request) the scheduled release date and time for an alien are such as not

17 to permit the advance notice that DHS has requested, it shall not be a violation of this

18 condition to provide only as much advance notice as practicable.” Id.

19

60. Like the agency’s solicitation, the Greenville Award claims that compliance

20 with the Challenged Conditions is an “authorized and priority purpose” of the award, and

21 that grant funds “may be obligated” for the costs of complying with those Conditions. Id.

22 ¶¶ 55(3), 56(3).

23

61. Notwithstanding DOJ’s revisions to the Challenged Conditions, DOJ was

24 preliminarily enjoined from imposing them on the Byrne JAG awards because it was

25 likely the conditions exceed DOJ’s statutory authority. City of Chicago v. Sessions, 2017

26 WL 4081821 (N.D. Ill. Sept. 15, 2017), appeal filed.

27

28

19
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Case 2:17-cv-07215 Document 1 Filed 09/29/17 Page 22 of 43 Page ID #:22

1

G. DOJ’s New Federal Civil Immigration-Related Conditions Put Los

2

Angeles’ Byrne Criminal Justice Assistance Funding At Risk.

3

62. In prior years, Los Angeles has established eligibility for, and received funds

4 under, the Byrne JAG Program. The City is presently seeking Byrne JAG funding for the

5 FY 2017 cycle. In response to the agency’s Solicitation, on August 31, 2017, the City

6 timely submitted its application for funding (“Application”), attached hereto as Exhibit 5.

7 The City appended a letter to its Application, noting that, in light of DOJ’s representation

8 that an applicant would not be required to accept or reject the Challenged Conditions

9 until it signed its award document, the City was “submitting its Application with the

10 qualification that it [was] withholding any commitment to, or confirmation of, its

11 compliance with the Conditions.” Application, at Attachment 1.

12

63. Based on the statutory funding formula, and Los Angeles’ track record, Los

13 Angeles anticipates that the City would receive an award and funding but for any

14 complications posed by the new conditions. BJA has already calculated that Los Angeles

15 is eligible to receive $1.9 million in Byrne JAG funds, an amount it divides with the

16 County of Los Angeles as a sub-grantee.12 The City has authority to further adjust the

17 division of Byrne JAG funds, and the funds are generally divided evenly between the

18 City and County.

19

64. Although Los Angeles does not concede that DOJ has authority to impose

20 the Section 1373 Condition, Los Angeles can certify its compliance with 8 U.S.C.

21 § 1373.

22

65. Los Angeles previously raised concerns about the original version of the

23 Notice Condition, which appeared to require the City to prolong the detention of arrestees

24 in order to provide DHS with a full 48 hours’ notice of release. The Notice Condition as

25 purportedly revised in the Greenville Award—which DOJ represents it will also include

26

27

12 Bureau of Justice Assistance, Office of Justice Programs, U.S. Department of Justice, “2017 California Local JAG Allocations,” available at

28 https://www.bja.gov/Programs/JAG/jag17/17CA.pdf (attached hereto as Exhibit 6).

20
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Case 2:17-cv-07215 Document 1 Filed 09/29/17 Page 23 of 43 Page ID #:23

1 in future awards—specifies that prolongation of detention is not authorized or required.

2 However, the Notice Condition remains ambiguous. DOJ demands “notice as early as

3 practicable” regarding “the scheduled release date and time for a particular alien” when

4 the “correctional facility receives from DHS a formal written request authorized by the

5 Immigration and Nationality Act.” “Scheduled release,” however, is generally not an

6 applicable term in the context of short-term detention operations, like LAPD’s. Los

7 Angeles therefore cannot determine what is required of it under the Notice Condition, and

8 so would be unable to make an unqualified assurance that it complies.

9

66. Los Angeles also cannot determine whether DOJ would consider Los

10 Angeles’ policies and the operations of its jail facilities to be consistent with the agency’s

11 Access Condition as set forth in the Greenville Award. The City does not prevent ICE

12 officials from accessing its detention facilities to interview individuals, but the City

13 complies with state statutory law (the California TRUTH Act) requiring that detainees

14 receive notice and information regarding requested interviews by federal authorities.

15 LAPD’s practice in implementing this law is to determine the arrestee’s willingness to be

16 interviewed by federal immigration officials, and not to facilitate any federal civil

17 immigration interview that the detainee has declined. In light of Defendants’ previous

18 actions and rhetoric, and the language of the Access Condition as revised in the

19 Greenville Award, the City remains concerned that DOJ is demanding “access” that is

20 inconsistent with state law and LAPD’s related operational policy and practices in its

21 jails. Thus, the City cannot ascertain whether, in DOJ’s view, by informing detainees of

22 the requested interview pursuant to state law, and by declining to facilitate interviews that

23 the detainee has declined, the City would not be considered to have a policy or practice

24 under which federal agents “in fact are given access . . . to meet with individuals.”

25

67. As a result, if the Access Condition is not enjoined, the ambiguity as to what

26 DOJ intends the Condition to require of the City will force the City to submit a qualified

27 assurance, since DOJ has made it impossible to ascertain what the Condition actually

28 requires.

21
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Case 2:17-cv-07215 Document 1 Filed 09/29/17 Page 24 of 43 Page ID #:24

1

68. This Court’s intervention is required to invalidate these unlawful conditions.

2

H. Community Oriented Policing Services (“COPS”) Grant Program

3

69. In a provision entitled “Authority to make public safety and community

4 policing grants,” Congress authorized the Attorney General to “make[] grants to States,

5 units of local government, Indian tribal governments, other public and private entities,

6 and multi-jurisdictional or regional consortia for the purposes described in subsection (b)

7 of this section.” 34 U.S.C. § 10381(a). In subsection (b), Congress limited “[t]he

8 purposes for which grants . . . may be made,” id. § 10381(b), to the following twenty-two

9 purposes:

10

• to rehire law enforcement officers who have been laid off as a result of State,

11

tribal, or local budget reductions for deployment in community-oriented policing;

12

13

• to hire and train new, additional career law enforcement officers for deployment in

community-oriented policing across the Nation, including by prioritizing the hiring

14

and training of veterans (as defined in section 101 of Title 38);

15

16

• to procure equipment, technology, or support systems, or pay overtime, to increase

17

the number of officers deployed in community-oriented policing;

18

19

• to award grants to pay for office[r]s hired to perform intelligence, anti-terror, or

homeland security duties;

20

21

• to increase the number of law enforcement officers involved in activities that are

22

focused on interaction with members of the community on proactive crime control

23

and prevention by redeploying officers to such activities;

24

25

• to provide specialized training to law enforcement officers to enhance their conflict

resolution, mediation, problem solving, service, and other skills needed to work in

26

partnership with members of the community;

27

28

• to increase police participation in multidisciplinary early intervention teams;

22
COMPLAINT

Case 2:17-cv-07215 Document 1 Filed 09/29/17 Page 25 of 43 Page ID #:25

1

• to develop new technologies, including interoperable communications

2

technologies, modernized criminal record technology, and forensic technology, to

3

assist State, tribal, and local law enforcement agencies in reorienting the emphasis

4

of their activities from reacting to crime to preventing crime and to train law

5

enforcement officers to use such technologies;

6

7

• to develop and implement innovative programs to permit members of the

community to assist State, tribal, and local law enforcement agencies in the

8

prevention of crime in the community, such as a citizens’ police academy,

9

including programs designed to increase the level of access to the criminal justice

10

system enjoyed by victims, witnesses, and ordinary citizens by establishing

11

decentralized satellite offices (including video facilities) of principal criminal

12

courts buildings;

13

14

• to establish innovative programs to reduce, and keep to a minimum, the amount of

15

time that law enforcement officers must be away from the community while

16

awaiting court appearances;

17

18

• to establish and implement innovative programs to increase and enhance proactive

crime control and prevention programs involving law enforcement officers and

19

young persons in the community;

20

21

• to establish school-based partnerships between local law enforcement agencies and

22

local school systems by using school resource officers who operate in and around

23

elementary and secondary schools to combat school-related crime and disorder

24

problems, gangs, and drug activities;

25

26

• to develop and establish new administrative and managerial systems to facilitate

the adoption of community-oriented policing as an organization-wide philosophy;

27

28

23
COMPLAINT

Case 2:17-cv-07215 Document 1 Filed 09/29/17 Page 26 of 43 Page ID #:26

1

• to assist a State or Indian tribe in enforcing a law throughout the State or tribal

2

community that requires that a convicted sex offender register his or her address

3

with a State, tribal, or local law enforcement agency and be subject to criminal

4

prosecution for failure to comply;

5

6

• to establish, implement, and coordinate crime prevention and control programs

(involving law enforcement officers working with community members) with other

7

Federal programs that serve the community and community members to better

8

address the comprehensive needs of the community and its members;

9

10

• to support the purchase by a law enforcement agency of no more than 1 service

11

weapon per officer, upon hiring for deployment in community-oriented policing or,

12

if necessary, upon existing officers’ initial redeployment to community-oriented

13

policing;

14

15

• to participate in nationally recognized active shooter training programs that offer

scenario-based, integrated response courses designed to counter active shooter

16

threats or acts of terrorism against individuals or facilities;

17

18

• to provide specialized training to law enforcement officers to—

19

o recognize individuals who have a mental illness; and

20

o properly interact with individuals who have a mental illness, including

21

strategies for verbal de-escalation of crises;

22

23

• to establish collaborative programs that enhance the ability of law enforcement

agencies to address the mental health, behavioral, and substance abuse problems of

24

individuals encountered by law enforcement officers in the line of duty;

25

26

• to provide specialized training to corrections officers to recognize individuals who

27

have a mental illness;

28

24
COMPLAINT

Case 2:17-cv-07215 Document 1 Filed 09/29/17 Page 27 of 43 Page ID #:27

1

• to enhance the ability of corrections officers to address the mental health of

2

individuals under the care and custody of jails and prisons, including specialized

3

training and strategies for verbal de-escalation of crises; and

4

5

• to permit tribal governments receiving direct law enforcement services from the

Bureau of Indian Affairs to access the program under this section for use in

6

accordance with the above purposes.

7

8 34 U.S.C. § 10381(b)(1)-(22).

9 70. Grants disbursed under Section 10381 are known as Community Oriented
10 11 Policing Services (“COPS”) grants. See 34 U.S.C. § 10381(k). COPS grant funding is
administered by the Office of Community Oriented Policing Services (“COPS Office”) 12 13 within the U.S. Department of Justice. See 2017 CHP Application Guide at 61. The 14 COPS Office administers several types of COPS programs each year. See, e.g., COPS
Office, Funding Opportunities, https://cops.usdoj.gov/Default.asp?Item=65 (listing 15
different COPS grant programs). One of those grants is the COPS Hiring Program 16
(“CHP”) grant, which “provides funding directly to law enforcement agencies to hire 17
and/or rehire career law enforcement officers in an effort to increase their community 18
policing capacity and crime prevention efforts.” 2017 CHP Application Guide at 1, 7. 19
Pursuant to statute, CHP grants may fund up to 75 percent of the salary and benefits of 20 21 the hired or rehired officers. See id.; see also 34 U.S.C. § 10381(g). Each fiscal year, the
COPS Office selects local government awardees to receive CHP funds that, in general, 22 23 may be used over a period of three years. See 2017 CHP Application Guide at 1.
71. For purposes of evaluating COPS grant applications, Congress authorized 24
the Attorney General to give “preferential consideration, where feasible, to an 25
application” that meets one or more of three criteria: (1) an application “for hiring and 26
rehiring additional career law enforcement officers that involves a non-Federal 27
contribution exceeding the 25 percent minimum” non-federal contribution; (2) the 28

25
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Case 2:17-cv-07215 Document 1 Filed 09/29/17 Page 28 of 43 Page ID #:28

1 applicant is in a State that has in effect anti-human trafficking laws that treat minors

2 engaged in commercial sex as victims; or (3) the applicant is in a State that has in effect

3 laws related to allowing the vacatur of arrests or convictions for non-violent crimes

4 committed by human trafficking victims directly related to their human trafficking. 34

5 U.S.C. § 10381(c).

6

72. The COPS Office determines which applicants receive CHP grants through a

7 points system. In calculating an applicant’s score for a CHP grant in FY 2016, for

8 example, “fiscal need . . . constitute[d] 20 percent, crime 30 percent, and community

9 policing 50 percent of the overall score.” 2016 CHP Application Guide at 21.13 The

10 COPS Office also provided “additional consideration” to applicants on various grounds.

11 Id. The COPS Office does not explain how localities receive points in the various

12 categories, or the relative weight given to additional considerations in the overall scoring

13 system. See id.

14

I. Los Angeles Uses COPS Funds For Critical Local Law Enforcement

15

Needs

16

73. Los Angeles applied for CHP grants in 2012 and 2016, and received the

17 grants in both years. In FY 2016, Los Angeles’ score for the CHP grant was 150.67—the

18 14th highest score among over 1,110 applications. See COPS Office, FY2016 COPS

19 Hiring Program Applicant Rankings,

20 https://cops.usdoj.gov/pdf/2016AwardDocs/chp/Ranking_List.pdf.

21

74. Los Angeles received $3.125 million in CHP funding in FY 2016, which

22 went toward the hiring of 25 officers to improve community policing. Los Angeles

23 explained in its 2016 application that the CHP funds would help expand the “Summer

24 Night Lights” and “Fall Friday Nights” programs, in which parks around Los Angeles

25 extend their operating hours and host free events for the community, with LAPD officers

26 present to ensure the safety of residents. See Los Angeles 2016 CHP Application,

27

28 13 Available at https://cops.usdoj.gov/pdf/2016AwardDocs/chp/AppGuide.pdf.

26
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Case 2:17-cv-07215 Document 1 Filed 09/29/17 Page 29 of 43 Page ID #:29

1 attached hereto as Exhibit 7. In addition, Los Angeles planned to use CHP funds to

2 expand training programs in community policing. Id.

3

J. Defendants’ Imposition Of New Immigration-Related “Additional

4

Consideration” Factors For FY 2017 CHP Grants

5

75. As with the Byrne JAG Program, DOJ also attempts to transform the CHP

6 grant from a grant for community policing to a tool for pressuring jurisdictions into

7 engaging in federal civil immigration enforcement.

8

76. In the FY 2017 application guide, the COPS Office expanded the types of

9 local law enforcement “focus areas” that would receive additional consideration beyond 10 those authorized by the COPS grant statute. See 34 U.S.C. § 10381(b), (c). For FY 2017 11 COPS grants, “additional consideration” is provided for grant-supported programs whose

12 “focus area” is “Illegal Immigration” (the “Immigration Enforcement Focus

13 Consideration”). See 2017 CHP Application Guide at 27, 43.

14

77. Additional consideration is also provided for grant-supported programs

15 focusing on “Violent Crime” or “Homeland Security.” See 2017 CHP Application Guide 16 at 27. Unlike “Illegal Immigration,” these focus areas correspond with authorized 17 statutory purposes for COPS funding. See 34 U.S.C. § 10381(b)(5), (8), (9), (11), (12),

18 (15) (crime control); id. § 10381(b)(4) (homeland security). Applicants could select only

19 one “focus area.” See 2017 CHP Application Guide at 42.

20

78. The COPS Office separately stated that further “additional consideration”

21 might be given to “applicants that partner with federal law enforcement to address illegal 22 immigration” (“Immigration Enforcement Partnership Consideration”). See id. at 27-28. 23 Applicants were also required to certify compliance with 8 U.S.C. § 1373. See id. at 28.

24

79. The COPS Office also included the statutorily authorized preferential

25 considerations for “applicants in states with certain anti-human trafficking laws that treat

26 minors engaged in commercial sex as victims (referred to as ‘safe harbor’ laws) and

27 permit individuals to vacate arrest or prosecution records for non-violent offenses as a 28 result of being trafficked.” See 34 U.S.C. § 10381(c)(2)-(3); 2017 CHP Application

27
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1 Guide at 27. It also indicated that applicants will receive additional consideration for

2 hiring a military veteran. See 2017 CHP Application Guide at 39; 34 U.S.C.

3 § 10381(b)(2) (“prioritizing the hiring and training of veterans” is one purpose of COPS

4 grants). The COPS office also indicated that applicants “that experienced an

5 unanticipated catastrophic event” might be given additional consideration. See 2017

6 CHP Application Guide at 27-28 see 34 U.S.C. § 10381(b)(4), (17) (programs to counter

7 mass shootings and terrorism); cf. 42 U.S.C. § 5141 (permitting modification of

8 administrative conditions of federal assistance programs in light of a “major disaster”).

9

80. In its FY 2017 application, Los Angeles applied for $3.125 million in CHP

10 funds to support hiring officers for its Community Safety Partnership (“CSP”) Program.

11 See Los Angeles 2017 CHP Application, attached hereto as Exhibit 8. The purpose of the

12 CSP Program is to build trust and respect by promoting community engagement and a

13 safe living environment, and to improve public safety. The CSP Program operates in

14 selected public housing developments located throughout the Los Angeles Area. Officers

15 implement programs for at-risk youth, ensure safe passage on school routes, and build

16 relationships in the communities through neighborhood watch groups, quality of life

17 committees, and citizen-police enforcement teams. Thus, in its application, Los Angeles

18 selected “Building Trust and Respect” as its focus area. See 34 U.S.C. § 10381(b)(1),

19 (2), (5), (11). DOJ is not providing additional consideration for programs within this

20 focus area.

21

81. Nearly two months after CHP grant applications were due—and after

22 briefing was complete on the preliminary injunction motion in the Chicago challenge to

23 the Byrne JAG conditions—Los Angeles received an email from the COPS Office

24 informing the City that DOJ had created an Immigration Enforcement Partnership

25 Consideration. To qualify for that additional consideration, Los Angeles would have had

26 to certify that it has implemented, or would implement, versions of the Notice and Access

27 Conditions that DOJ had recently introduced to the Byrne JAG Program. See Email from

28

28
COMPLAINT

Case 2:17-cv-07215 Document 1 Filed 09/29/17 Page 31 of 43 Page ID #:31

1 COPS Office (Sept. 7, 2017), attached hereto as Exhibit 9. In full, the COPS Office

2 offered additional consideration to applicants if:

3

a. “The applicant entity and/or its governing body has implemented or, before

4

drawing down grant funds if awarded, will implement rules, regulations,

5

policies, and/or practices that ensure that U.S. Department of Homeland

6

Security (‘DHS’) personnel have access to any of the governing body’s

7

correctional or detention facilities in order to meet with an alien (or an

8

individual believed to be an alien) and inquire as to his or her right to be or

9

to remain in the United States” (the “Access Requirement”); and

10

b. “The applicant entity and/or its governing body has implemented or, before

11

drawing down grant funds if awarded, will implement rules, regulations,

12

policies, and/or practices that ensure that any of the governing body’s

13

correctional and detention facilities provide advance notice as early as

14

practicable (at least 48 hours, where possible) to DHS regarding the

15

scheduled release date and time of an alien in the jurisdiction’s custody

16

when DHS requests such notice in order to take custody of the alien. This

17

certification does not require holding an alien beyond his or her scheduled

18

time of release.” (the “Notice Requirement”).

19 See “Certification of Illegal Immigration Cooperation,” attached as Attachment 1 to

20 Exhibit 9.

21

82. DOJ informed Los Angeles that it had twelve days, until September 19,

22 2017, to make the necessary certifications in order to receive additional consideration on

23 these grounds.

24

83. On the same day that Los Angeles received the e-mail, DOJ released a

25 statement that jurisdictions would receive “additional points in the application scoring

26 process [for COPS grants] if their agencies cooperate with federal law enforcement to

27 address illegal immigration.” DOJ, Office of Public Affairs, Department of Justice

28 Announces Priority Consideration Criteria for COPS Office Grants (Sept. 7, 2017),

29
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Case 2:17-cv-07215 Document 1 Filed 09/29/17 Page 32 of 43 Page ID #:32

1 https://www.justice.gov/opa/pr/department-justice-announces-priority-consideration-

2 criteria-cops-office-grants, attached hereto as Exhibit 10. The statement included the

3 following from Defendant Sessions: “[c]ities and states that cooperate with federal law

4 enforcement make all of us safer by helping remove dangerous criminals from our

5 communities,” and “jurisdictions with these policies in place should be acknowledged for

6 their commitment to ending violent crime, including violent crime stemming from illegal

7 immigration.” Id. DOJ would thus “recognize jurisdictions that commit to the rule of

8 law by awarding additional points in the application scoring process for COPS Office

9 grants.” Id.; see also COPS Office: Immigration Cooperation Certification Process

10 Background, https://www.justice.gov/opa/press-release/file/995376/download, attached

11 hereto as Exhibit 11.

12

84. After receiving the September 7, 2017, email from the COPS Office, Los

13 Angeles did not, in the allotted 12 days, certify compliance with the Access and Notice

14 Requirements.

15

85. DOJ’s decision to favor jurisdictions that participate in civil immigration

16 investigations and enforcement and disfavor those jurisdictions that focus on the

17 community policing goals of the COPS statute creates an uneven playing field and harms

18 the City of Los Angeles’s ability to fairly compete for a COPS grant.

19

COUNT ONE

20

(Byrne JAG: Violation of Separation of Powers / Ultra Vires Agency Action)

21

86. Los Angeles incorporates and re-alleges each and every allegation contained

22 above as if fully set forth herein.

23

87. This cause of action is alleged against Defendants Sessions, Hanson and the

24 Department of Justice.

25

88. Defendants’ imposition on Byrne JAG grant applicants of the Access

26 Condition and the Notice Condition violates constitutional principles of Separation of

27 Powers and exceeds DOJ’s lawful authority.

28

89. The Constitution confers the power of the Spending Clause on Congress, not

30
COMPLAINT

Case 2:17-cv-07215 Document 1 Filed 09/29/17 Page 33 of 43 Page ID #:33

1 the Executive Branch. See U.S. Const. art. I, § 8, cl. 1. It is Congress, then, not an

2 Executive Branch agency, that has the constitutional authority to impose conditions on

3 the receipt of federal funds, and even that power is subject to limitations such as

4 relatedness and clarity. Defendants here are attempting to wield authority that is vested

5 in Congress, not in DOJ.

6

90. While Congress may have limited authority to delegate its Spending Clause

7 powers, it must at a minimum speak clearly and unmistakably when it does so, with

8 specific guidance as to the conditions the Executive Branch may attach on receipt of

9 federal funds. This requirement is critical, especially when federalism concerns come

10 into play, as they do here. Absent a clear statement, it cannot lightly be presumed that

11 Congress permitted an agency to invent conditions on federal funds, tying those funds to

12 that agency’s views on what federal immigration policies state and local governments

13 should be required to adopt.

14

91. Moreover, Congress has made no specific and unambiguous delegation of

15 authority to DOJ, and under our system of government, a federal agency “has no power

16 to act . . . unless and until Congress confers power upon it.” Louisiana Pub. Serv.

17 Comm’n v. FCC, 476 U.S. 355, 374 (1986). “[W]hen the [Executive] takes measures

18 incompatible with the expressed or implied will of Congress, [its] power is at its lowest

19 ebb . . . .” Youngstown Sheet & Tube Co. v. Sawyer, 343 U.S. 579, 637 (1952) (Jackson,

20 J., concurring). Here, DOJ is exceeding its delegated authority and contravening the text

21 and structure of the statute Congress crafted to authorize the expenditure of federal funds

22 under the Byrne JAG Program.

23

92. Congress specifically directed that Byrne JAG funds be used “to provide

24 additional personnel, equipment, supplies, contractual support, training, technical

25 assistance, and information systems for criminal justice” efforts by state and local

26 entities. 34 U.S.C. § 10152(a)(1). In so doing, Congress enumerated eight types of

27 criminal justice programs that could receive funding, such as “law enforcement

28 programs,” “prosecution and court programs,” and “prevention and education programs.”

31
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Case 2:17-cv-07215 Document 1 Filed 09/29/17 Page 34 of 43 Page ID #:34

1 Id. § 10152(a)(1)(A)-(H).

2

93. The programs to which Congress expressly directed Byrne JAG funding do

3 not include inducing state and local support for federal investigations of civil immigration

4 status. Yet in imposing the Challenged Conditions, Defendants attempt to divert federal

5 funds to exactly that purpose. DOJ goes so far as to convert these immigration-related

6 requirements into a “priority purpose” of the Byrne JAG award. The Department also

7 purports to permit award recipients to dissipate Byrne JAG funds on changing local laws

8 and policies to comply with the federal immigration conditions on the funds, and even to

9 spend Byrne JAG funds on the costs to the recipient of “honor[ing] any duly authorized

10 request from DHS that is encompassed by the[] conditions.” In essence, DOJ expressly

11 authorizes the shifting of money that Congress appropriated to advance local criminal

12 justice programs away from that clear statutory purpose to fund, instead, federal civil

13 immigration investigations. This is an unprecedented departure from the way Congress

14 has chosen to exercise its Spending Clause power.

15

94. Congress specifically recognized when it created the Byrne JAG program

16 that state and local governments maintain the sovereign police power to protect the public

17 health and safety of their residents by providing police departments with the “flexibility

18 to spend money for programs that work for them rather than to impose a ‘one size fits all’

19 solution.” H.R. Rep. No. 109-233, at 89 (2005). The record also shows Congress

20 intended to “lessen the administrative burden of applying for the grants.” Id. DOJ’s

21 blatant attempt to syphon monies from creative, locally driven Byrne JAG funded

22 criminal justice programs, like the City’s CLEAR program, Chicago’s Force for Good

23 and police vehicle purchasing programs, or San Francisco’s drug court and drug

24 diversion programs, into a complex, “one size fits all” effort to support federal civil

25 immigration investigations, clearly runs afoul of this congressional intent.

26

95. The Challenged Conditions are also grossly inconsistent with the funding

27 formula established in 34 U.S.C. § 10156. BJA is required, by congressional mandate, to

28 allocate funds based on a prescribed formula that takes into account a State’s population,

32
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Case 2:17-cv-07215 Document 1 Filed 09/29/17 Page 35 of 43 Page ID #:35

1 and the violent crime rates in a given State or locality. 34 U.S.C. § 10156(a), (d).

2 Congress enumerated specific certifications and assurances the applicant must make to

3 access these funds. Again, Congress did not include a condition mandating local law

4 enforcement involvement in federal civil immigration investigations.

5

96. Not only are the Challenged Conditions incompatible with the basic

6 structure of the Byrne JAG Program, but they also violate an express rule of construction

7 imposed by Congress. Congress directed that the statute creating the Byrne JAG

8 Program not be construed to authorize DOJ to exercise “any direction, supervision, or

9 control over any police force or any other criminal justice agency of any State or any

10 political subdivision thereof.” 34 U.S.C. § 10228(a). The Challenged Conditions do just

11 that, asserting federal control over Los Angeles and its police department in the operation

12 of its jail facilities.

13

97. The purported basis of DOJ’s attempt to defeat this statutory scheme of the

14 Byrne JAG program, which was carefully structured by Congress, is a narrow, generally

15 applicable provision, found elsewhere in the federal law, regarding the overall and

16 delegation authority within DOJ, set forth in 34 U.S.C. § 10102(a)(6). Section

17 10102(a)(6) states, under the heading of “Duties and functions of Assistant Attorney

18 General [for the Office of Justice Programs]”, that the Assistant Attorney General “shall .

19 . . exercise such other powers and functions as may be vested in the Assistant Attorney

20 General pursuant to this chapter or by delegation of the Attorney General, including

21 placing special conditions on all grants, and determining priority purposes for formula

22 grants.” Id.

23

98. This glancing reference to “special conditions” evinces no congressional

24 intent to give DOJ the authority it now asserts. The statute does not give blanket

25 authority to Defendants to place any conditions on any grants; it simply defines the

26 Assistant Attorney General of OJP as the representative within the DOJ’s hierarchy who

27 is able to place special conditions on a grant when that authority “may be vested in him.”

28 When Congress wishes to actually vest authority to create new conditions, it does so

33
COMPLAINT

Case 2:17-cv-07215 Document 1 Filed 09/29/17 Page 36 of 43 Page ID #:36

1 expressly, for example, authorizing OJP’s Bureau of Justice Assistance to impose

2 “reasonable conditions” on grant awards under the Violence Against Women Act, so long

3 as those conditions are limited “to ensure that the States meet statutory, regulatory, and

4 other program requirements.” 34 U.S.C. § 10446(e)(3). By contrast, the only authority

5 Congress vested in the Attorney General with respect to the Byrne JAG Program was to

6 specify the “form” of the application and the “data, records, and information

7 (programmatic and financial)” that an applicant must report and maintain, id. § 10153(a),

8 (a)(4), as well as to “develop[] guidelines” for a “program assessment” “in coordination

9 with the National Institute of Justice,” id. § 10152(c).

10

99. To the extent DOJ has authority to impose conditions on Byrne JAG awards,

11 that authority is limited. Conditions on Byrne JAG awards must relate to the

12 administration of the grant or the use of grant funds, such as providing funds on a

13 reimbursement basis, requiring additional, more detailed financial reports, or requiring

14 the grantee to comply with statutory mandates of nondiscrimination in connection with

15 grant programs. See, e.g., 29 U.S.C. § 794. Congress did not, in an innocuous grant

16 administration provision, hide an “elephant[] in [a] mousehole[],” Whitman v. Am.

17 Trucking Ass’n, 531 U.S. 457, 468 (2001)—permitting DOJ to demand significant policy

18 commitments about operations of local jail facilities to further federal civil immigration

19 matters in exchange for funding that Congress authorized for local criminal justice

20 efforts.

21

100. All of these limits on DOJ’s delegated authority are confirmed by the fact

22 that Congress has considered—and rejected—attempts to link Byrne JAG funding to state

23 and local participation in federal civil immigration investigations. See, e.g., Stop

24 Sanctuary Cities Act, S. 1814, 114th Cong. § 2(b)(2) (2015); Enforce the Law for

25 Sanctuary Cities Act, H.R. 3009, 114th Cong. § 3(b) (2015).

26

101. In sum, DOJ is attempting to exercise a power it does not have. Defendants’

27 attempt to condition federal criminal justice funding intended for cities like Los Angeles

28 violates the Separation of Powers enshrined in our Constitution.

34
COMPLAINT

Case 2:17-cv-07215 Document 1 Filed 09/29/17 Page 37 of 43 Page ID #:37

1

COUNT TWO

2

(Byrne JAG: Tenth Amendment and Spending Clause)

3

102. Los Angeles incorporates and re-alleges each and every allegation contained

4 above as if fully set forth herein.

5

103. This cause of action is alleged against Defendants Sessions, Hanson and the

6 Department of Justice.

7

104. Even if Congress could have delegated the spending power to DOJ to

8 impose the Challenged Conditions, and even if it had intended to do so, the delegated

9 power would still be subject to constitutional restrictions that are not met here. It is well-

10 established that the Spending Clause requires that conditions on providing federal funds

11 to States and local governments must, inter alia, be unambiguous, and be sufficiently

12 germane to the purpose of the federal funds. Otherwise, the “condition” amounts to

13 impermissible regulation and commandeering of States and local governments, in

14 violation of the Tenth Amendment. The Challenged Conditions fail both of these

15 requirements.

16

105. Conditions on allocations of federal funds must be stated unambiguously.

17 “The legitimacy of Congress’ power to legislate under the spending power thus rests on

18 whether the State voluntarily and knowingly accepts” the conditions, and there can be

19 “no knowing acceptance if a State [or city] . . . is unable to ascertain what is expected of

20 it.” Pennhurst State Sch. & Hosp. v. Halderman, 451 U.S. 1, 17 (1981). It is Congress,

21 not an agency, that must speak clearly in defining the type of conditions at issue. But

22 even if DOJ could satisfy this requirement by speaking with the requisite clarity, it has

23 not done so here.

24

106. The Notice Condition as revised requires “notice as early as practicable” for

25 “the scheduled release date and time for a particular alien” after the “correctional facility

26 receives from DHS a formal written request authorized by the Immigration and

27 Nationality Act.” It is not clear what this would mean in the context of short-term

28 detention operations, like LAPD’s, in which “scheduled release” is generally not a

35
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Case 2:17-cv-07215 Document 1 Filed 09/29/17 Page 38 of 43 Page ID #:38

1 relevant concept.

2

107. The Access Condition may be read to require unfettered access to local

3 detention facilities, even when an individual is informed of the request and declines to be

4 interviewed in accordance with state law, but the Condition does not make this

5 requirement unambiguously clear. If DOJ does intend to view and enforce this Condition

6 expansively—for instance, to prevent Los Angeles from delivering to detainees the

7 required “know-your-rights” form, or to require the City to facilitate meetings that have

8 been declined by the detainees—it would have to have been written in much clearer and

9 more explicit terms. Moreover, the Access Condition does not explain what is meant by

10 an “inquiry” triggering the obligation, and includes no reasonableness requirement or

11 limiting language to prevent DHS from consuming hours of LAPD staff time, or tying up

12 LAPD interview rooms, in a manner that interferes with the safety, efficiency, or legal

13 time restraints that LAPD must consider in operating its jail facilities.

14

108. Conditions imposed on recipients of federal funding must also “bear some

15 relationship to the purpose of federal spending.” New York v. United States, 505 U.S.

16 144, 167 (1992). The Challenged Conditions concern federal civil immigration

17 investigations, which are not sufficiently related—or related at all—to the purpose of the

18 Byrne JAG Program created by Congress specifically to support state and local criminal

19 justice efforts.

20

COUNT THREE

21

(Byrne JAG: Violation of the Administrative Procedure Act - Arbitrary and

22

Capricious Agency Action)

23

109. Los Angeles incorporates and re-alleges each and every allegation contained

24 above as if fully set forth herein.

25

110. This cause of action is alleged against Defendants Sessions, Hanson and the

26 Department of Justice.

27

111. Agency actions are unlawful if they are “arbitrary, capricious, an abuse of

28 discretion, or otherwise not in accordance with law.” 5 U.S.C. § 706(2)(A).

36
COMPLAINT

Case 2:17-cv-07215 Document 1 Filed 09/29/17 Page 39 of 43 Page ID #:39

1

112. The decision to impose the Challenged Conditions is arbitrary and

2 capricious because DOJ adopted it without any reasoned basis, provides no support for its

3 linkage between participation by state and local law enforcement officials in federal civil

4 immigration investigations and violent crime, and appears to rely on clearly erroneous

5 and debunked interpretations of existing studies.

6

COUNT FOUR

7

(COPS Grant: Violation of Separation of Powers / Ultra Vires Agency Action)

8

113. Los Angeles incorporates and re-alleges each and every allegation contained

9 above as if fully set forth herein.

10

114. This cause of action is alleged against Defendants Sessions, Washington and

11 the Department of Justice.

12

115. Defendants’ imposition of the Immigration Enforcement Focus

13 Consideration and the Immigration Enforcement Partnership Consideration (the

14 “Challenged Considerations”) as “additional considerations” for receiving CHP grants

15 violates constitutional principles of Separation of Powers and exceeds DOJ’s lawful

16 authority.

17

116. Congress permitted the Attorney General to give “preferential

18 consideration” only to grant applicants that meet one or more of three enumerated

19 criteria. The preferential considerations authorized by Congress do not include inducing

20 state and local support for federal investigations of civil immigration violations. See 34

21 U.S.C. § 10381(c).

22

117. Congress specifically directed that COPS grant funds be used for twenty-two

23 specific purposes. As with the preferential considerations, none of these purposes

24 mentions “illegal immigration” or assisting in civil immigration enforcement and

25 investigations. See 34 U.S.C. § 10381(b)(1)-(22).

26

118. By imposing the Challenged Considerations as “additional considerations”

27 in receiving CHP grants, Defendants attempt to divert federal funds to a consideration not

28 authorized by Congress, and to disfavor jurisdictions that focus on community policing,

37
COMPLAINT

Case 2:17-cv-07215 Document 1 Filed 09/29/17 Page 40 of 43 Page ID #:40

1 but who are unwilling to participate in federal civil immigration enforcement. This is an

2 unprecedented departure from the way Congress has chosen to exercise its Spending

3 Clause power.

4

119. Not only are the Challenged Considerations incompatible with the basic

5 structure of the COPS statutory framework, but they also violate an express rule of

6 construction, which Congress adopted. Congress directed that the statute creating the

7 COPS grants not be construed to authorize DOJ to exercise “any direction, supervision,

8 or control over any police force or any other criminal justice agency of any State or any

9 political subdivision thereof.” 34 U.S.C. § 10228(a). The Challenged Considerations

10 attempt to do just that, asserting federal control over Los Angeles and its police

11 department in the operation of its custodial facilities.

12

120. Defendants’ efforts to alter the COPS grant program and invent unrelated

13 “additional considerations” to favor jurisdictions that participate in civil immigration

14 investigations and enforcement—and necessarily disadvantage communities that do

15 not—violates the Separation of Powers enshrined in our Constitution.

16

COUNT FIVE

17

(COPS Grant: Tenth Amendment and Spending Clause)

18

121. Los Angeles incorporates and re-alleges each and every allegation contained

19 above as if fully set forth herein.

20

122. This cause of action is alleged against Defendants Sessions, Washington and

21 the Department of Justice.

22

123. Even if Congress could have delegated the spending power to DOJ to

23 impose the Challenged Considerations, and even if it had intended to do so, the delegated

24 power would still be subject to constitutional restrictions.

25

124. Terms and conditions on federal funds, including “additional considerations”

26 that materially affect to whom a grant is awarded, must be stated unambiguously. See

27 supra ¶ 105.

28

125. The Notice Requirement and Access Requirement are ambiguous for the

38
COMPLAINT

Case 2:17-cv-07215 Document 1 Filed 09/29/17 Page 41 of 43 Page ID #:41

1 same reason that the related Byrne JAG conditions are ambiguous. See supra ¶¶ 106-07.

2 They are likewise unrelated to the purpose of the COPS grants to support state and local

3 community policing efforts. Indeed, in announcing the new conditions, DOJ made no

4 effort to substantiate any connection between these spheres of policy that Congress has

5 treated as distinct.

6

COUNT SIX

7

(COPS Grant: Violation of the Administrative Procedure Act - Arbitrary and

8

Capricious Agency Action)

9

126. Los Angeles incorporates and re-alleges each and every allegation contained

10 above as if fully set forth herein.

11

127. This cause of action is alleged against Defendants Sessions, Washington and

12 the Department of Justice.

13

128. Agency actions are unlawful if they are “arbitrary, capricious, an abuse of

14 discretion, or otherwise not in accordance with law.” 5 U.S.C. § 706(2)(A). The

15 decision to impose the Challenged Considerations is arbitrary and capricious because

16 DOJ adopted it without any reasoned basis, provides no support for its linkage of state

17 cooperation in federal immigration enforcement with violent crime, and appears to rely

18 on clearly erroneous and debunked interpretations of existing studies.

19

PRAYER FOR RELIEF

20 WHEREFORE, Plaintiff City of Los Angeles respectfully requests that this Court
21 enter judgment in its favor, and grant the following relief:
22 1. Declare that the Challenged Conditions relating to the Byrne JAG program
23 are unconstitutional or otherwise unlawful;
24 2. Permanently enjoin Defendants from imposing or enforcing the Challenged
25 Conditions relating to the Byrne JAG program;
26 3. Declare that the Challenged Considerations relating to the COPS program
27 are unconstitutional or otherwise unlawful;
28

39
COMPLAINT

Case 2:17-cv-07215 Document 1 Filed 09/29/17 Page 42 of 43 Page ID #:42

1

4. Permanently enjoin Defendants from imposing or enforcing the Challenged

2 Considerations relating to the COPS program;

3

5. Award Plaintiff City of Los Angeles reasonable fees and costs; and,

4

6. Grant any further relief that this Court may deem fit and proper.

5

6

7

8

9

10

11

12

13

14

15

16

17

18

19

20

21

22

23

24

25

26

27

28

40
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Case 2:17-cv-07215 Document 1-1 Filed 09/29/17 Page 1 of 2 Page ID #:44
EXHIBIT 1

Attorney General Sessions Announces Immigration Compliance Requirements for Edwar... Page 1 of 1 Case 2:17-cv-07215 Document 1-1 Filed 09/29/17 Page 2 of 2 Page ID #:45

JUSTICE NEWS

Department of Justice Office of Public Affairs

FOR IMMEDIATE RELEASE

Tuesday, July 25, 2017

Attorney General Sessions Announces Immigration Compliance Requirements for Edward Byrne Memorial Justice Assistance Grant
Programs
The Department of Justice today posted a solicitation for the Edward Byrne Memorial Justice Assistance Grant Programs (“Byrne JAG”). Recipients for FY 2017 will be notified of new conditions of their grants that will increase information sharing between federal, state, and local law enforcement, ensuring that federal immigration authorities have the information they need to enforce immigration laws and keep our communities safe.
"So-called 'sanctuary' policies make all of us less safe because they intentionally undermine our laws and protect illegal aliens who have committed crimes,” Attorney General Jeff Sessions said. “These policies also encourage illegal immigration and even human trafficking by perpetuating the lie that in certain cities, illegal aliens can live outside the law. This can have tragic consequences, like the 10 deaths we saw in San Antonio this weekend. As part of accomplishing the Department of Justice's top priority of reducing violent crime, we must encourage these 'sanctuary' jurisdictions to change their policies and partner with federal law enforcement to remove criminals. From now on, the Department will only provide Byrne JAG grants to cities and states that comply with federal law, allow federal immigration access to detention facilities, and provide 48 hours notice before they release an illegal alien wanted by federal authorities. This is consistent with long-established cooperative principles among law enforcement agencies. This is what the American people should be able to expect from their cities and states, and these long overdue requirements will help us take down MS-13 and other violent transnational gangs, and make our country safer."
Attachment(s): Download Byrne JAG Grant Policy Backgrounder
Component(s): Office of the Attorney General
Press Release Number: 17-826
Updated July 25, 2017

https://www.justice.gov/opa/pr/attorney-general-sessions-announces-immigration-complia... 8/21/2017

Case 2:17-cv-07215 Document 1-2 Filed 09/29/17 Page 1 of 2 Page ID #:46
EXHIBIT 2

Case 2:17-cv-07215 Document 1-2 Filed 09/29/17 Page 2 of 2 Page ID #:47
BACKGROUNDER ON GRANT REQUIREMENTS

The following is on background, attributable to a DOJ official:
 Today, consistent with the goal of increasing information sharing between federal, state, and local law enforcement, Edward Byrne Memorial Justice Assistance Grant Program (“Byrne JAG”) recipients for FY 2017 have been notified that they will be required to do the following:
o certify compliance with section 1373, a federal statute applicable to state and local governments that generally bars restrictions on communications between state and local agencies and officials at the Department of Homeland Security;
o permit personnel of the U.S. Department of Homeland Security (“DHS”) to access any detention facility in order to meet with an alien and inquire as to his or her right to be or remain in the United States; and
o provide at least 48 hours advance notice to DHS regarding the scheduled release date and time of an alien in the jurisdiction’s custody when DHS requests such notice in order to take custody of the alien.
For background on the Byrne JAG program, please click here.
For more information on Byrne JAG allocation for past fiscal years, please click here.
For more information on Byrne JAG as it pertains to FY2017, please click here.
 Improving the flow of information between federal and state law enforcement authorities is paramount to ensuring that federal immigration authorities have the information they need to enforce the law and keep our communities safe.
 8 U.S.C. § 1373 is a federal statute applicable to state and local governments that generally bars restrictions on communication between state and local agencies and officials at the Department of Homeland Security (and certain other entities) with respect to information regarding the citizenship or immigration status of any individual.
 In March 2016, the Department’s Office of Justice Programs (“OJP”) notified recipients of Byrne JAG grants of the requirement to comply with 8 U.S.C. § 1373. The Department has also announced that it will take all lawful steps to claw back any funds awarded to a jurisdiction that violates its grant agreement, including the condition to comply with section 1373.
 These common-sense measures will improve the flow of information between federal, state, and local law enforcement, and help keep our communities safe. Every year, the Department of Justice awards billions of dollars in grants to state and local jurisdictions across the United States. Unfortunately, some of these jurisdictions have adopted policies and regulations that frustrate the enforcement of federal immigration law, including by refusing to cooperate with federal immigration authorities in information sharing about illegal aliens who commit crimes.
 These measures will also prevent the counterproductive use of federal funds for policies that frustrate federal immigration enforcement. By refusing to communicate with the federal officials, these jurisdictions jeopardize the safety of their residents and undermine the Department’s ability to protect the public and reduce crime and violence.

Case 2:17-cv-07215 Document 1-3 Filed 09/29/17 Page 1 of 42 Page ID #:48
EXHIBIT 3

Case 2:17-cv-07215 Document 1-3 Filed 09/29/17 Page 2 of 42 Page ID #:49

U.S. Department of Justice Office of Justice Programs Bureau of Justice Assistance

OMB No. 1121-0329 Approval Expires 12/31/2018

The U.S. Department of Justice (DOJ), Office of Justice Programs (OJP), Bureau of Justice Assistance (BJA) is seeking applications for the Edward Byrne Memorial Justice Assistance Grant (JAG) Program. This program furthers the Department’s mission by assisting State, local, and tribal efforts to prevent or reduce crime and violence.
Edward Byrne Memorial Justice Assistance Grant Program
FY 2017 Local Solicitation
Applications Due: September 5, 2017
Eligibility
Only units of local government may apply under this solicitation. By law, for purposes of the JAG Program, the term “units of local government” includes a town, township, village, parish, city, county, borough, or other general purpose political subdivision of a state; or, it may also be a federally recognized Indian tribal government that performs law enforcement functions (as determined by the Secretary of the Interior). A unit of local government may be any law enforcement district or judicial enforcement district established under applicable State law with authority to independently establish a budget and impose taxes; for example, in Louisiana, a unit of local government means a district attorney or parish sheriff.
A JAG application is not complete, and a unit of local government may not receive award funds, unless the chief executive of the applicant unit of local government (e.g., a mayor) properly executes, and the unit of local government submits, the “Certifications and Assurances by Chief Executive of Applicant Government” attached to this solicitation as Appendix I.
In addition, as discussed further below, in order validly to accept a Fiscal Year (FY) 2017 JAG award, the chief legal officer of the applicant unit of local government must properly execute, and the unit of local government must submit, the specific certification regarding compliance with 8 U.S.C. § 1373 attached to this solicitation as Appendix II. (Note: this requirement does not apply to Indian tribal governments.) (The text of 8 U.S.C. § 1373 appears in Appendix II.)
Eligible allocations under JAG are posted annually on the JAG web page under “Funding.”

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Deadline
Applicants must register in the OJP Grants Management System (GMS) prior to submitting an application under this solicitation. All applicants must register, even those that previously registered in GMS. Select the “Apply Online” button associated with the solicitation title. All registrations and applications are due by 5 p.m. eastern time on September 5, 2017.
This deadline does not apply to the certification regarding compliance with 8 U.S.C. § 1373. As explained below, a unit of local government (other than an Indian tribal government) may not validly accept an award unless that certification is submitted to the Office of Justice Programs (OJP) on or before the day the unit of local government submits the signed award acceptance documents.
For additional information, see How to Apply in Section D. Application and Submission Information.
Contact Information
For technical assistance with submitting an application, contact the Grants Management System (GMS) Support Hotline at 888–549–9901, option 3, or via email at GMS.HelpDesk@usdoj.gov. The GMS Support Hotline operates 24 hours a day, 7 days a week, including on federal holidays.
An applicant that experiences unforeseen GMS technical issues beyond its control that prevent it from submitting its application by the deadline must email the National Criminal Justice Reference Service (NCJRS) Response Center at grants@ncjrs.gov within 24 hours after the application deadline in order to request approval to submit its application. Additional information on reporting technical issues appears under “Experiencing Unforeseen GMS Technical Issues” in How to Apply in Section D. Application and Submission Information.
For assistance with any other requirement of this solicitation, applicants may contact the NCJRS Response Center by telephone at 1–800–851–3420; via TTY at 301–240–6310 (hearing impaired only); by email at grants@ncjrs.gov; by fax to 301–240–5830, or by web chat at https://webcontact.ncjrs.gov/ncjchat/chat.jsp. The NCJRS Response Center hours of operation are 10:00 a.m. to 6:00 p.m. eastern time, Monday through Friday, and 10:00 a.m. to 8:00 p.m. eastern time on the solicitation close date. Applicants also may contact the appropriate BJA State Policy Advisor.
Funding opportunity number assigned to this solicitation: BJA-2017-11301
Release date: August 3, 2017
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Contents
A. Program Description................................................................................................... 5 Overview ..........................................................................................................................5 Program-Specific Information ..........................................................................................5 Permissible uses of JAG Funds – In general ...................................................................5 Limitations on the use of JAG funds ................................................................................6 Required compliance with applicable federal laws...........................................................8 BJA areas of emphasis ....................................................................................................9 Goals, Objectives, and Deliverables ..............................................................................10 Evidence-Based Programs or Practices ........................................................................10 B. Federal Award Information ....................................................................................... 11 Type of Award................................................................................................................11 Financial Management and System of Internal Controls ...............................................12 Budget and Financial Information ..................................................................................13 Cost Sharing or Match Requirement..............................................................................14 Pre-Agreement Costs (also known as Pre-award Costs)...............................................14 Prior Approval, Planning, and Reporting of Conference/Meeting/Training Costs...........14 Costs Associated with Language Assistance (if applicable) ..........................................14 C. Eligibility Information ................................................................................................ 15 D. Application and Submission Information .................................................................. 15 What an Application Should Include ..............................................................................15 How to Apply..................................................................................................................26 E. Application Review Information ................................................................................ 28 Review Process .............................................................................................................28 F. Federal Award Administration Information................................................................ 29 Federal Award Notices ..................................................................................................29 Statutory and Regulatory Requirements; Award Conditions..........................................29 General Information about Post-Federal Award Reporting Requirements.....................30 G. Federal Awarding Agency Contact(s) ...................................................................... 31 H. Other Information ..................................................................................................... 31 Freedom of Information Act and Privacy Act (5 U.S.C. § 552 and 5 U.S.C. § 552a) .....31 Provide Feedback to OJP ..............................................................................................32 Application Checklist..................................................................................................... 33 Appendix I..................................................................................................................... 35
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Edward Byrne Memorial Justice Assistance Grant Program
FY 2017 Local Solicitation CFDA #16.738
A. Program Description
Overview The Edward Byrne Memorial Justice Assistance Grant (JAG) Program is the primary provider of federal criminal justice funding to States and units of local government. BJA will award JAG Program funds to eligible units of local government under this FY 2017 JAG Program Local Solicitation. (A separate solicitation will be issued for applications to BJA directly from States.)
Statutory Authority: The JAG Program statute is Subpart I of Part E of Title I of the Omnibus Crime Control and Safe Streets Act of 1968. Title I of the “Omnibus Act” generally is codified at Chapter 26 of Title 42 of the United States Code; the JAG Program statute is codified at 42 U.S.C. §§ 3750-3758. See also 28 U.S.C. § 530C(a).
Program-Specific Information
Permissible uses of JAG Funds – In general In general, JAG funds awarded to a unit of local government under this FY 2017 solicitation may be used to provide additional personnel, equipment, supplies, contractual support, training, technical assistance, and information systems for criminal justice, including for any one or more of the following:
• Law enforcement programs • Prosecution and court programs • Prevention and education programs • Corrections and community corrections programs • Drug treatment and enforcement programs • Planning, evaluation, and technology improvement programs • Crime victim and witness programs (other than compensation) • Mental health programs and related law enforcement and corrections programs,
including behavioral programs and crisis intervention teams
Under the JAG Program, units of local government may use award funds for broadband deployment and adoption activities as they relate to criminal justice activities.
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Limitations on the use of JAG funds Prohibited and controlled uses of funds – JAG funds may not be used (whether directly or indirectly) for any purpose prohibited by federal statute or regulation, including those purposes specifically prohibited by the JAG Program statute as set out at 42 U.S.C. § 3751(d):
(1) Any security enhancements or any equipment to any nongovernmental entity that is not engaged in criminal justice or public safety.
(2) Unless the Attorney General certifies that extraordinary and exigent circumstances exist that make the use of such funds to provide such matters essential to the maintenance of public safety and good order—
(a) Vehicles (excluding police cruisers), vessels (excluding police boats), or aircraft (excluding police helicopters)
(b) Luxury items (c) Real estate (d) Construction projects (other than penal or correctional institutions) (e) Any similar matters
For additional information on expenditures prohibited under JAG, as well as expenditures that are permitted but “controlled,” along with the process for requesting approval regarding controlled items, refer to the JAG Prohibited and Controlled Expenditures Guidance. Information also appears in the JAG FAQs.
Cap on use of JAG award funds for administrative costs – A unit of local government may use up to 10 percent of a JAG award, including up to 10 percent of any earned interest, for costs associated with administering the award.
Prohibition of supplanting; no use of JAG funds as “match” – JAG funds may not be used to supplant State or local funds but must be used to increase the amounts of such funds that would, in the absence of federal funds, be made available for law enforcement activities. See the JAG FAQs on BJA’s JAG web page for examples of supplanting.
Although supplanting is prohibited, as discussed under “What An Application Should Include,” the leveraging of federal funding is encouraged.
Absent specific federal statutory authority to do so, JAG award funds may not be used as “match” for the purposes of other federal awards.
Other restrictions on use of funds – If a unit of local government chooses to use its FY 2017 JAG funds for particular, defined types of expenditures, it must satisfy certain preconditions:
 Body-Worn Cameras (BWC) A unit of local government that proposes to use FY 2017 JAG award funds to purchase BWC equipment or to implement or enhance BWC programs, must provide to OJP a certification(s) that the unit of local government has policies and procedures in place related to BWC equipment usage, data storage and access, privacy considerations, training, etc. The certification can be found at: https://www.bja.gov/Funding/BodyWornCameraCert.pdf.
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A unit of local government that proposes to use JAG funds for BWC-related expenses will have funds withheld until the required certification is submitted and approved by OJP.
The BJA BWC Toolkit provides model BWC policies and best practices to assist departments in implementing BWC programs.
Apart from the JAG Program, BJA provides funds under the Body-Worn Camera Policy and Implementation Program (BWC Program). The BWC Program allows jurisdictions to develop and implement policies and practices required for effective program adoption and address program factors including the purchase, deployment, and maintenance of camera systems and equipment; data storage and access; and privacy considerations. Interested units of local government may wish to refer to the BWC web page for more information. Units of local government should note, however, that JAG funds may not be used as any part of the 50 percent match required by the BWC Program.
 Body Armor Ballistic-resistant and stab-resistant body armor can be funded through the JAG Program, as well as through BJA’s Bulletproof Vest Partnership (BVP) Program. The BVP Program is designed to provide a critical resource to local law enforcement through the purchase of ballistic-resistant and stab-resistant body armor. For more information on the BVP Program, including eligibility and application, refer to the BVP web page. Units of local government should note, however, that JAG funds may not be used as any part of the 50 percent match required by the BVP Program.
Body armor purchased with JAG funds may be purchased at any threat level, make, or model from any distributor or manufacturer, as long as the body armor has been tested and found to comply with the latest applicable National Institute of Justice (NIJ) ballistic or stab standards. In addition, body armor purchased must be made in the United States.
As is the case in the BVP Program, units of local government that propose to purchase body armor with JAG funds must certify that law enforcement agencies receiving body armor have a written “mandatory wear” policy in effect. FAQs related to the mandatory wear policy and certifications can be found at: https://www.bja.gov/Funding/JAGFAQ.pdf. This policy must be in place for at least all uniformed officers before any FY 2017 funding can be used by the unit of local government for body armor. There are no requirements regarding the nature of the policy other than it being a mandatory wear policy for all uniformed officers while on duty. The certification must be signed by the Authorized Representative and must be attached to the application if proposed as part of the application. If the unit of local government proposes to change project activities to utilize JAG funds to purchase body armor after the award is accepted, the unit of local government must submit the signed certification to BJA at that time. A mandatory wear concept and issues paper and a model policy are available by contacting the BVP Customer Support Center at vests@usdoj.gov or toll free at 1–877–758–3787. The certification form related to mandatory wear can be found at: www.bja.gov/Funding/BodyArmorMandatoryWearCert.pdf.
 DNA Testing of Evidentiary Materials and Upload of DNA Profiles to a Database
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If JAG Program funds will be used for DNA testing of evidentiary materials, any resulting eligible DNA profiles must be uploaded to the Combined DNA Index System (CODIS, the national DNA database operated by the Federal Bureau of Investigation [FBI]) by a government DNA lab with access to CODIS. No profiles generated with JAG funding may be entered into any other non-governmental DNA database without prior express written approval from BJA.

In addition, funds may not be used for purchase of DNA equipment and supplies when the resulting DNA profiles from such technology are not accepted for entry into CODIS.



Interoperable Communication

Units of local government (including subrecipients) that use FY 2017 JAG funds to

support emergency communications activities (including the purchase of interoperable

communications equipment and technologies such as voice-over-internet protocol

bridging or gateway devices, or equipment to support the build out of wireless

broadband networks in the 700 MHz public safety band under the Federal

Communications Commission [FCC] Waiver Order) should review FY 2017 SAFECOM

Guidance. The SAFECOM Guidance is updated annually to provide current information

on emergency communications policies, eligible costs, best practices, and technical

standards for State, local, tribal, and territorial grantees investing federal funds in

emergency communications projects. Additionally, emergency communications projects

should support the Statewide Communication Interoperability Plan (SCIP) and be

coordinated with the fulltime Statewide Interoperability Coordinator (SWIC) in the State

of the project. As the central coordination point for their State’s interoperability effort, the

SWIC plays a critical role, and can serve as a valuable resource. SWICs are responsible

for the implementation of SCIP through coordination and collaboration with the

emergency response community. The U.S. Department of Homeland Security Office of

Emergency Communications maintains a list of SWICs for each of the States and

territories. Contact OEC@hq.dhs.gov. All communications equipment purchased with FY

2017 JAG Program funding should be identified during quarterly performance metrics

reporting.

In order to promote information sharing and enable interoperability among disparate systems across the justice and public safety communities, OJP requires the recipient to comply with DOJ's Global Justice Information Sharing Initiative guidelines and recommendations for this particular grant. Recipients must conform to the Global Standards Package (GSP) and all constituent elements, where applicable, as described at: https://www.it.ojp.gov/gsp grantcondition. Recipients must document planned approaches to information sharing and describe compliance to GSP and an appropriate privacy policy that protects shared information, or provide detailed justification for why an alternative approach is recommended.

Required compliance with applicable federal laws By law, the chief executive (e.g., the mayor) of each unit of local government that applies for an FY 2017 JAG award must certify that the unit of local government will “comply with all provisions of [the JAG program statute] and all other applicable Federal laws.” To satisfy this requirement, each unit of local government applicant must submit two properly executed certifications using the forms shown in Appendix I and Appendix II.

All applicants should understand that OJP awards, including certifications provided in connection with such awards, are subject to review by DOJ, including by OJP and by the DOJ
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Office of the Inspector General. Applicants also should understand that a materially false, fictitious, or fraudulent statement (or concealment or omission of a material fact) in a certification submitted to OJP in support of an application may be the subject of criminal prosecution, and also may result in civil penalties and administrative remedies for false claims or otherwise. Administrative remedies that may be available to OJP with respect to an FY 2017 award include suspension or termination of the award, placement on the DOJ high risk grantee list, disallowance of costs, and suspension or debarment of the recipient.
BJA areas of emphasis BJA recognizes that there are significant pressures on local criminal justice systems. In these challenging times, shared priorities and leveraged resources can make a significant impact. As a component of OJP, BJA intends to focus much of its work on the areas of emphasis described below, and encourages each unit of local government recipient of an FY 2017 JAG award to join us in addressing these challenges:
• Reducing Gun Violence – Gun violence has touched nearly every State and local government in America. While our nation has made great strides in reducing violent crime, some municipalities and regions continue to experience unacceptable levels of violent crime at rates far in excess of the national average. BJA encourages units of local government to invest JAG funds in programs to combat gun violence, enforce existing firearms laws, and improve the process for ensuring that persons prohibited from purchasing guns are prevented from doing so by enhancing reporting to the FBI’s National Instant Criminal Background Check System (NICS).
• National Incident-Based Reporting System (NIBRS) – The FBI has formally announced its intentions to establish NIBRS as the law enforcement crime data reporting standard for the nation. The transition to NIBRS will provide a more complete and accurate picture of crime at the national, State, and local levels. Once this transition is complete, the FBI will no longer collect summary data and will accept data only in the NIBRS format. Also, once the transition is complete, JAG award amounts will be calculated on the basis of submitted NIBRS data. Transitioning all law enforcement agencies to NIBRS is the first step in gathering more comprehensive crime data. BJA encourages recipients of FY 2017 JAG awards to use JAG funds to expedite the transition to NIBRS.
• Officer Safety and Wellness – The issue of law enforcement safety and wellness is an important priority for the Department of Justice. Preliminary data compiled by the National Law Enforcement Officers Memorial Fund indicates that there were 135 line-ofduty law enforcement deaths in 2016—the highest level in the past 5 years and a 10 percent increase from 2015 (123 deaths).
Firearms-related deaths continued to be the leading cause of death (64), increasing 56 percent from 2015 (41). Of particular concern is that of the 64 firearms-related deaths, 21 were as a result of ambush-style attacks representing the highest total in more than two decades. Traffic-related deaths continued to rise in 2016 with 53 officers killed, a 10 percent increase from 2015 (48 deaths). Additionally, there were 11 job-related illness deaths in 2016, mostly heart attacks.
BJA sees a vital need to focus not only on tactical officer safety concerns but also on health and wellness as they affect officer performance and safety. It is important for law enforcement to have the tactical skills necessary, and also be physically and mentally well, to perform, survive, and be resilient in the face of the demanding duties of the
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profession. BJA encourages units of local government to use JAG funds to address these needs by providing training, including paying for tuition and travel expenses related to attending trainings such as VALOR training, as well as funding for health and wellness programs for law enforcement officers.
• Border Security – The security of United States borders is critically important to the reduction and prevention of transnational drug-trafficking networks and combating all forms of human trafficking within the United States (sex and labor trafficking of foreign nationals and U.S. citizens of all sexes and ages). These smuggling operations on both sides of the border contribute to a significant increase in violent crime and U.S. deaths from dangerous drugs. Additionally, illegal immigration continues to place a significant strain on federal, State, and local resources—particularly on those agencies charged with border security and immigration enforcement—as well as the local communities into which many of the illegal immigrants are placed. BJA encourages units of local government to use JAG funds to support law enforcement hiring, training, and technology enhancement in the area of border security.
• Collaborative Prosecution – BJA supports strong partnerships between prosecutors and police as a means to improve case outcomes and take violent offenders off the street. BJA strongly encourages State and local law enforcement to foster strong partnerships with prosecutors to adopt new collaborative strategies aimed at combating increases in crime, particularly violent crime. (BJA's “Smart Prosecution” Initiative is a related effort by OJP to promote partnerships between prosecutors and researchers to develop and deliver effective, data-driven, evidence-based strategies to solve chronic problems and fight crime.)
Goals, Objectives, and Deliverables In general, the FY 2017 JAG Program is designed to provide additional personnel, equipment, supplies, contractual support, training, technical assistance, and information systems for criminal justice. The JAG Local Program is designed to assist units of local government with respect to criminal justice.
As discussed in more detail below, a unit of local government that receives an FY 2017 JAG award will be required to prepare various types of reports and to submit data related to performance measures and accountability. The Goals, Objectives, and Deliverables are directly related to the JAG Progam accountability measures.
Evidence-Based Programs or Practices OJP strongly emphasizes the use of data and evidence in policy making and program development in criminal justice, juvenile justice, and crime victim services. OJP is committed to:
• Improving the quantity and quality of evidence OJP generates • Integrating evidence into program, practice, and policy decisions within OJP and the
field • Improving the translation of evidence into practice
OJP considers programs and practices to be evidence-based when their effectiveness has been demonstrated by causal evidence, generally obtained through one or more outcome evaluations. Causal evidence documents a relationship between an activity or intervention (including technology) and its intended outcome, including measuring the direction and size of a change, and the extent to which a change may be attributed to the activity or intervention.
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Causal evidence depends on the use of scientific methods to rule out, to the extent possible, alternative explanations for the documented change. The strength of causal evidence, based on the factors described above, will influence the degree to which OJP considers a program or practice to be evidence-based. The OJP CrimeSolutions.gov website is one resource that applicants may use to find information about evidence-based programs in criminal justice, juvenile justice, and crime victim services.
A useful matrix of evidence-based policing programs and strategies is available through the Center for Evidence-Based Crime Policy at George Mason University. BJA offers a number of program models designed to effectively implement promising and evidence-based strategies through the BJA “Smart Suite” of programs, including Smart Policing, Smart Supervision, Smart Pretrial, Smart Defense, Smart Prosecution, Smart Reentry, and others (see: https://www.bja.gov/Programs/CRPPE/smartsuite.html). BJA encourages units of local government to use JAG funds to support these “smart on crime” strategies, including effective partnerships with universities, research partners, and non-traditional criminal justice partners.
BJA Success Stories The BJA Success Stories web page features projects that have demonstrated success or shown promise in reducing crime and positively impacting communities. This web page will be a valuable resource for States, localities, territories, tribes, and criminal justice professionals that seek to identify and learn about JAG and other successful BJA-funded projects linked to innovation, crime reduction, and evidence-based practices. BJA strongly encourages the recipient to submit success stories annually (or more frequently).
If a unit of local government has a success story it would like to submit, it may be submitted through My BJA account, using “add a Success Story” and the Success Story Submission form. Register for a My BJA account using this registration link.
B. Federal Award Information
BJA estimates that it will make up to 1,100 local awards totaling an estimated $83,000,000.
Awards of at least $25,000 are 4 years in length, and award periods will be from October 1, 2016 through September 30, 2020. Extensions beyond this period may be made on a case-bycase basis at the discretion of BJA and must be requested via GMS no less than 30 days prior to the grant end date.
Awards of less than $25,000 are 2 years in length, and award periods will be from October 1, 2016 through September 30, 2018. Extensions of up to 2 years can be requested for these awards via GMS no less than 30 days prior to the grant end date, and will be automatically granted upon request.
All awards are subject to the availability of appropriated funds and to any modifications or additional requirements that may be imposed by statute.
Type of Award BJA expects that any award under this solicitation will be in the form of a grant. See Statutory and Regulatory Requirements; Award Conditions, under Section F. Federal Award Administration Information, for a brief discussion of important statutes, regulations, and award conditions that apply to many (or in some cases, all) OJP grants.
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JAG awards are based on a statutory formula as described below.
Once each fiscal year’s overall JAG Program funding level is determined, BJA works with the Bureau of Justice Statistics (BJS) to begin a four-step grant award calculation process, which, in general, consists of:
(1) Computing an initial JAG allocation for each State, based on its share of violent crime and population (weighted equally).
(2) Reviewing the initial JAG allocation amount to determine if the State allocation is less than the minimum award amount defined in the JAG legislation (0.25 percent of the total). If this is the case, the State is funded at the minimum level, and the funds required for this are deducted from the overall pool of JAG funds. Each of the remaining States receive the minimum award plus an additional amount based on its share of violent crime and population.
(3) Dividing each State’s final award amount (except for the territories and District of Columbia) between the State and its units of local governments at a rate of 60 and 40 percent, respectively.
(4) Determining unit of local government award allocations, which are based on their proportion of the State’s 3-year violent crime average. If the “eligible award amount” for a particular unit of local government as determined on this basis is $10,000 or more, then the unit of local government is eligible to apply directly to OJP (under the JAG Local solicitation) for a JAG award. If the “eligible award amount” to a particular unit of local government as determined on this basis would be less than $10,000, however, the funds are not made available for a direct award to that particular unit of local government, but instead are added to the amount that otherwise would have been awarded to the State.
Financial Management and System of Internal Controls Award recipients and subrecipients (including recipients or subrecipients that are pass-through entities1) must, as described in the Part 200 Uniform Requirements2 as set out at 2 C.F.R. 200.303:
(a) Establish and maintain effective internal control over the Federal award that provides reasonable assurance that [the recipient (and any subrecipient)] is managing the Federal award in compliance with Federal statutes, regulations, and the terms and conditions of the Federal award. These internal controls should be in compliance with guidance in “Standards for Internal Control in the Federal Government” issued by the Comptroller General of the United States and the “Internal Control Integrated Framework”, issued by the Committee of Sponsoring Organizations of the Treadway Commission (COSO).
(b) Comply with Federal statutes, regulations, and the terms and conditions of the Federal awards.
1 For purposes of this solicitation, the phrase “pass-through entity” includes any recipient or subrecipient that provides a subaward ("subgrant”) to carry out part of the funded award or program. 2 The "Part 200 Uniform Requirements” refers to the DOJ regulation at 2 C.F.R Part 2800, which adopts (with certain modifications) the provisions of 2 C.F.R. Part 200.
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(c) Evaluate and monitor [the recipient’s (and any subrecipient’s)] compliance with statutes, regulations, and the terms and conditions of Federal awards.
(d) Take prompt action when instances of noncompliance are identified including noncompliance identified in audit findings.
(e) Take reasonable measures to safeguard protected personally identifiable information and other information the Federal awarding agency or pass-through entity designates as sensitive or [the recipient (or any subrecipient)] considers sensitive consistent with applicable Federal, State, local, and tribal laws regarding privacy and obligations of confidentiality.
To help ensure that applicants understand the administrative requirements and cost principles, OJP encourages prospective applicants to enroll, at no charge, in the DOJ Grants Financial Management Online Training, available here.
Budget and Financial Information Trust Fund – Units of local government may draw down JAG funds either in advance or on a reimbursement basis. To draw down in advance, a trust fund must be established in which to deposit the funds. The trust fund may or may not be an interest-bearing account. If subrecipients draw down JAG funds in advance, they also must establish a trust fund in which to deposit funds.
Tracking and reporting regarding JAG funds used for State administrative costs – As indicated earlier, a unit of local government may use up to 10 percent of a JAG award, including up to 10 percent of any earned interest, for costs associated with administering the award. Administrative costs (when utilized) must be tracked separately; a recipient must report in separate financial status reports (SF-425) those expenditures that specifically relate to each particular JAG award during any particular reporting period.
No commingling – Both the unit of local government recipient and all subrecipients of JAG funds are prohibited from commingling funds on a program-by-program or project-by-project basis. For this purpose, use of the administrative JAG funds to perform work across all active awards in any one year is not considered comingling.
Disparate Certification – In some cases, as defined by the legislation, a disparity may exist between the funding eligibility of a county and its associated municipalities. Three different types of disparities may exist:
• The first type is a zero-county disparity. This situation exists when one or more municipalities within a county are eligible for a direct award but the county is not; yet the county is responsible for providing criminal justice services (such as prosecution and incarceration) for the municipality. In this case, the county is entitled to part of the municipality’s award because it shares the cost of criminal justice operations, although it may not report crime data to the FBI. This is the most common type of disparity.
• A second type of disparity exists when both a county and a municipality within that county qualify for a direct award, but the award amount for the municipality exceeds 150 percent of the county’s award amount.
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• The third type of disparity occurs when a county and multiple municipalities within that county are all eligible for direct awards, but the sum of the awards for the individual municipalities exceeds 400 percent of the county’s award amount.
Jurisdictions certified as disparate must identify a fiscal agent that will submit a joint application for the aggregate eligible allocation to all disparate municipalities. The joint application must determine and specify the award distribution to each unit of local government and the purposes for which the funds will be used. When beginning the JAG application process, a Memorandum of Understanding (MOU) that identifies which jurisdiction will serve as the applicant or fiscal agent for joint funds must be completed and signed by the Authorized Representative for each participating jurisdiction. The signed MOU should be attached to the application. For a sample MOU, go to: www.bja.gov/Funding/JAGMOU.pdf.
Cost Sharing or Match Requirement The JAG Program does not require a match.
For additional cost sharing and match information, see the DOJ Grants Financial Guide.
Pre-Agreement Costs (also known as Pre-award Costs) Pre-agreement costs are costs incurred by the applicant prior to the start date of the period of performance of the grant award.
OJP does not typically approve pre-agreement costs. An applicant must request and obtain the prior written approval of OJP for any such costs. All such costs incurred prior to award and prior to approval of the costs are incurred at the sole risk of the applicant. (Generally, no applicant should incur project costs before submitting an application requesting federal funding for those costs.)
Should there be extenuating circumstances that make it appropriate for OJP to consider approving pre-agreement costs, the applicant may contact the point of contact listed on the title page of this solicitation for the requirements concerning written requests for approval. If approved in advance by OJP, award funds may be used for pre-agreement costs, consistent with the recipient’s approved budget and applicable cost principles. See the section on “Costs Requiring Prior Approval” in the DOJ Grants Financial Guide for more information.
Prior Approval, Planning, and Reporting of Conference/Meeting/Training Costs\ OJP strongly encourages every applicant that proposes to use award funds for any conference-, meeting-, or training-related activity (or similar event) to review carefully—before submitting an application—the OJP and DOJ policy and guidance on approval, planning, and reporting of such events, available at: https://www.ojp.gov/financialguide/DOJ/PostawardRequirements/chapter3.10a.htm.
OJP policy and guidance (1) encourage minimization of conference, meeting, and training costs; (2) require prior written approval (which may affect project timelines) of most conference, meeting, and training costs for cooperative agreement recipients, as well as some conference, meeting, and training costs for grant recipients; and (3) set cost limits, which include a general prohibition of all food and beverage costs.
Costs Associated with Language Assistance (if applicable) If an applicant proposes a program or activity that would deliver services or benefits to individuals, the costs of taking reasonable steps to provide meaningful access to those services
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or benefits for individuals with limited English proficiency may be allowable. Reasonable steps to provide meaningful access to services or benefits may include interpretation or translation services, where appropriate.
For additional information, see the “Civil Rights Compliance” section under “Overview of Legal Requirements Generally Applicable to OJP Grants and Cooperative Agreements - FY 2017 Awards” in the OJP Funding Resource Center.
C. Eligibility Information
For information on eligibility, see the title page of this solicitation.
Note that, as discussed in more detail below, the certification regarding compliance with 8 U.S.C. § 1373 must be executed and submitted before a unit of local government (other than an Indian tribal government) can make a valid award acceptance. Also, a unit of local government may not receive award funds (and its award will include a condition that withholds funds) until it submits a properly executed “Certifications and Assurances by Chief Executive of Applicant Government.”
D. Application and Submission Information
What an Application Should Include This section describes in detail what an application should include. An applicant should anticipate that if it fails to submit an application that contains all of the specified elements, it may negatively affect the review of its application; and, should a decision be made to make an award, it may result in the inclusion of award conditions that preclude the recipient from accessing or using award funds until the recipient satisfies the conditions and OJP makes the funds available.
An applicant may combine the Budget Narrative and the Budget Detail Worksheet in one document. If an applicant submits only one budget document, however, it must contain both narrative and detail information. Please review the “Note on File Names and File Types” under How to Apply to be sure applications are submitted in permitted formats.
OJP strongly recommends that applicants use appropriately descriptive file names (e.g., “Program Narrative,” “Budget Detail Worksheet and Budget Narrative,” “Timelines,” “Memoranda of Understanding,” “Résumés”) for all attachments. Also, OJP recommends that applicants include résumés in a single file.
In general, if a unit of local government fails to submit required information or documents, OJP either will return the unit of local government’s application in the Grants Management System (GMS) for submission of the missing information or documents, or will attach a condition to the award that will withhold award funds until the necessary information and documents are submitted. (As discussed elsewhere in this solicitation, the certification regarding compliance with 8 U.S.C. § 1373—which is set out at Appendix II—will be handled differently. Unless and until that certification is submitted, the unit of local government (other than an Indian tribal government) will be unable to make a valid acceptance of the award.)
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1. Information to Complete the Application for Federal Assistance (SF-424) The SF-424 is a required standard form used as a cover sheet for submission of preapplications, applications, and related information. GMS takes information from the applicant’s profile to populate the fields on this form.
To avoid processing delays, an applicant must include an accurate legal name on its SF424. Current OJP award recipients, when completing the field for “Legal Name,” should use the same legal name that appears on the prior year award document, which is also the legal name stored in OJP’s financial system. On the SF-424, enter the Legal Name in box 5 and Employer Identification Number (EIN) in box 6 exactly as it appears on the prior year award document. An applicant with a current, active award(s) must ensure that its GMS profile is current. If the profile is not current, the applicant should submit a Grant Adjustment Notice updating the information on its GMS profile prior to applying under this solicitation.
A new applicant entity should enter the Official Legal Name and address of the applicant entity in box 5 and the EIN in box 6 of the SF-424.
Intergovernmental Review: This solicitation (“funding opportunity”) is within the scope of Executive Order 12372, concerning State opportunities to coordinate applications for federal financial assistance. See 28 C.F.R. Part 30. An applicant may find the names and addresses of State Single Points of Contact (SPOCs) at the following website: https://www.whitehouse.gov/omb/grants spoc/. If the State appears on the SPOC list, the applicant must contact the State SPOC to find out about, and comply with, the State’s process under E.O. 12372. In completing the SF-424, an applicant whose State appears on the SPOC list is to make the appropriate selection in response to question 19 once the applicant has complied with its State E.O. 12372 process. (An applicant whose State does not appear on the SPOC list should answer question 19 by selecting the response that the “Program is subject to E.O. 12372 but has not been selected by the State for review.”)
2. Project Abstract Applications should include a high-quality project abstract that summarizes the proposed project in 400 words or less. Project abstracts should be:
• Written for a general public audience. • Submitted as a separate attachment with “Project Abstract” as part of its file name. • Single-spaced, using a standard 12-point font (Times New Roman) with 1-inch margins. • Include applicant name, title of the project, a brief description of the problem to be
addressed and the targeted area/population, project goals and objectives, a description of the project strategy, any significant partnerships, and anticipated outcomes. • Identify up to 10 project identifiers that would be associated with proposed project activities. The list of identifiers can be found at www.bja.gov/funding/JAGIdentifiers.pdf.
3. Program Narrative The following sections should be included as part of the program narrative3:
a. Statement of the Problem – Identify the unit of local government’s strategy/funding priorities for the FY 2017 JAG funds, the subgrant award process and timeline, and a
3 For information on subawards (including the details on proposed subawards that should be included in the application), see "Budget and Associated Documentation" under Section D. Application and Submission Information.
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description of the programs to be funded over the grant period. Units of local government are strongly encouraged to prioritize the funding on evidence-based projects.
b. Project Design and Implementation – Describe the unit of local government’s strategic planning process, if any, that guides its priorities and funding strategy. This should include a description of how the local community is engaged in the planning process and the data and analysis utilized to support the plan; it should identify the stakeholders currently participating in the strategic planning process, the gaps in the needed resources for criminal justice purposes, and how JAG funds will be coordinated with State and related justice funds.
c. Capabilities and Competencies – Describe any additional strategic planning/coordination efforts in which the units of local government participates with other criminal justice criminal/juvenile justice agencies in the State.
d. Plan for Collecting the Data Required for this Solicitation’s Performance Measures – OJP will require each successful applicant to submit specific performance measures data as part of its reporting under the award (see “General Information about PostFederal Award Reporting Requirements” in Section F. Federal Award Administration Information). The performance measures correlate to the goals, objectives, and deliverables identified under “Goals, Objectives, and Deliverables” in Section A. Program Description. Post award, recipients will be required to submit quarterly performance metrics through BJA’s Performance Measurement Tool (PMT), located at: https://bjapmt.ojp.gov. The application should describe the applicant's plan for collection of all of the performance measures data listed in the JAG Program accountability measures at: https://bjapmt.ojp.gov/help/jagdocs.html.
BJA does not require applicants to submit performance measures data with their application. Performance measures are included as an alert that BJA will require successful applicants to submit specific data as part of their reporting requirements. For the application, applicants should indicate an understanding of these requirements and discuss how they will gather the required data, should they receive funding.
Note on Project Evaluations An applicant that proposes to use award funds through this solicitation to conduct project evaluations should be aware that certain project evaluations (such as systematic investigations designed to develop or contribute to generalizable knowledge) may constitute “research” for purposes of applicable DOJ human subjects protection regulations. However, project evaluations that are intended only to generate internal improvements to a program or service, or are conducted only to meet OJP’s performance measure data reporting requirements, likely do not constitute “research.” Each applicant should provide sufficient information for OJP to determine whether the particular project it proposes would either intentionally or unintentionally collect and/or use information in such a way that it meets the DOJ regulatory definition of research that appears at 28 C.F.R. Part 46 (“Protection of Human Subjects”).
Research, for the purposes of human subjects protection for OJP-funded programs, is defined as “a systematic investigation, including research development, testing and evaluation, designed to develop or contribute to generalizable knowledge.” 28 C.F.R. 46.102(d).
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For additional information on determining whether a proposed activity would constitute research for purposes of human subjects protection, applicants should consult the decision tree in the “Research and the Protection of Human Subjects” section of the “Requirements related to Research” web page of the “Overview of Legal Requirements Generally Applicable to OJP Grants and Cooperative Agreements - FY 2017” available through the OJP Funding Resource Center. Every prospective applicant whose application may propose a research or statistical component also should review the “Data Privacy and Confidentiality Requirements” section on that web page.
4. Budget and Associated Documentation
(a) Budget Detail Worksheet A sample Budget Detail Worksheet can be found at www.ojp.gov/funding/Apply/Resources/BudgetDetailWorksheet.pdf. An applicant that submits its budget in a different format should use the budget categories listed in the sample budget worksheet. The Budget Detail Worksheet should break out costs by year.
For questions pertaining to budget and examples of allowable and unallowable costs, see the DOJ Grants Financial Guide.
(b) Budget Narrative The Budget Narrative should thoroughly and clearly describe every category of expense listed in the proposed Budget Detail Worksheet. OJP expects proposed budgets to be complete, cost effective, and allowable (e.g., reasonable, allocable, and necessary for project activities). This narrative should include a full description of all costs, including administrative costs (if applicable).
An applicant should demonstrate in its Budget Narrative how it will maximize cost effectiveness of award expenditures. Budget narratives should generally describe cost effectiveness in relation to potential alternatives and the goals of the project. For example, a budget narrative should detail why planned in-person meetings are necessary, or how technology and collaboration with outside organizations could be used to reduce costs, without compromising quality.
The Budget Narrative should be mathematically sound and correspond clearly with the information and figures provided in the Budget Detail Worksheet. The narrative should explain how the applicant estimated and calculated all costs, and how those costs are necessary to the completion of the proposed project. The narrative may include tables for clarification purposes, but need not be in a spreadsheet format. As with the Budget Detail Worksheet, the Budget Narrative should describe costs by year.
(c) Information on Proposed Subawards (if any), as well as on Proposed Procurement Contracts (if any) Applicants for OJP awards typically may propose to make “subawards.” Applicants also may propose to enter into procurement “contracts” under the award.
Whether—for purposes of federal grants administrative requirements—a particular agreement between a recipient and a third party will be considered a “subaward” or instead considered a procurement “contract” under the award is determined by federal rules and applicable OJP guidance. It is an important distinction, in part because the
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federal administrative rules and requirements that apply to “subawards” and procurement “contracts” under awards differ markedly.
In general, the central question is the relationship between what the third party will do under its agreement with the recipient and what the recipient has committed (to OJP) to do under its award to further a public purpose (e.g., services the recipient will provide, products it will develop or modify, research or evaluation it will conduct). If a third party will provide some of the services the recipient has committed (to OJP) to provide, will develop or modify all or part of a product the recipient has committed (to OJP) to develop or modify, or conduct part of the research or evaluation the recipient has committed (to OJP) to conduct, OJP will consider the agreement with the third party a subaward for purposes of federal grants administrative requirements.
This will be true even if the recipient, for internal or other non-federal purposes, labels or treats its agreement as a procurement, a contract, or a procurement contract. Neither the title nor the structure of an agreement determines whether the agreement—for purposes of federal grants administrative requirements—is a “subaward” or is instead a procurement “contract” under an award.
Additional guidance on the circumstances under which (for purposes of federal grants administrative requirements) an agreement constitutes a subaward as opposed to a procurement contract under an award is available (along with other resources) on the OJP Part 200 Uniform Requirements web page.
(1) Information on proposed subawards and required certification regarding 8 U.S.C. § 1373 from certain subrecipients
General requirement for federal authorization of any subaward; statutory authorizations of subawards under the JAG Program statute. Generally, a recipient of an OJP award may not make subawards (“subgrants”) unless the recipient has specific federal authorization to do so. Unless an applicable statute or DOJ regulation specifically authorizes (or requires) particular subawards, a recipient must have authorization from OJP before it may make a subaward.
JAG subawards that are required or specifically authorized by statute (see 42 U.S.C. § 3751(a) and 42 U.S.C. § 3755) do not require prior approval to authorize subawards. This includes subawards made by units of local government under the JAG Program.
A particular subaward may be authorized by OJP because the recipient included a sufficiently detailed description and justification of the proposed subaward in the application as approved by OJP. If, however, a particular subaward is not authorized by federal statute or regulation and is not sufficiently described and justified in the application as approved by OJP, the recipient will be required, post award, to request and obtain written authorization from OJP before it may make the subaward.
If an applicant proposes to make one or more subawards to carry out the federal award and program, and those subawards are not specifically authorized (or required) by statute or regulation, the applicant should: (1) identify (if known) the proposed subrecipient(s), (2) describe in detail what each subrecipient will do to carry out the federal award and federal program, and (3) provide a justification for the
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subaward(s), with details on pertinent matters such as special qualifications and areas of expertise. Pertinent information on subawards should appear not only in the Program Narrative but also in the Budget Detail Worksheet and budget narrative.
NEW Required certification regarding 8 U.S.C. § 1373 from any proposed subrecipient that is a unit of local government or “public” institution of higher education. Before a unit of local government may subaward FY 2017 award funds to another unit of local government or to a public institution of higher education, it will be required (by award condition) to obtain a properly executed certification regarding compliance with 8 U.S.C. § 1373 from the proposed subrecipient. (This requirement regarding 8 U.S.C. § 1373 will not apply to subawards to Indian tribes). The specific certification the unit of local government must require from another unit of local government will vary somewhat from the specific certification it must require from a public institution of higher education. The forms will be posted and available for download at: https://ojp.gov/funding/Explore/SampleCertifications-8USC1373.htm.
(2) Information on proposed procurement contracts (with specific justification for proposed noncompetitive contracts over $150,000)
Unlike a recipient contemplating a subaward, a recipient of an OJP award generally does not need specific prior federal authorization to enter into an agreement that— for purposes of federal grants administrative requirements—is considered a procurement contract, provided that (1) the recipient uses its own documented procurement procedures and (2) those procedures conform to applicable federal law, including the Procurement Standards of the (DOJ) Part 200 Uniform Requirements (as set out at 2 C.F.R. 200.317 - 200.326). The Budget Detail Worksheet and budget narrative should identify proposed procurement contracts. (As discussed above, subawards must be identified and described separately from procurement contracts.)
The Procurement Standards in the (DOJ) Part 200 Uniform Requirements, however, reflect a general expectation that agreements that (for purposes of federal grants administrative requirements) constitute procurement “contracts” under awards will be entered into on the basis of full and open competition. If a proposed procurement contract would exceed the simplified acquisition threshold—currently, $150,000—a recipient of an OJP award may not proceed without competition, unless and until the recipient receives specific advance authorization from OJP to use a non-competitive approach for the procurement.
An applicant that (at the time of its application) intends—without competition—to enter into a procurement contract that would exceed $150,000 should include a detailed justification that explains to OJP why, in the particular circumstances, it is appropriate to proceed without competition. Various considerations that may be pertinent to the justification are outlined in the DOJ Grants Financial Guide.
(d) Pre-Agreement Costs For information on pre-agreement costs, see Section B. Federal Award Information.
5. Indirect Cost Rate Agreement (if applicable) Indirect costs may be charged to an award only if:
(a) The recipient has a current (that is, unexpired), federally approved indirect cost rate; or
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(b) The recipient is eligible to use, and elects to use, the “de minimis” indirect cost rate described in the (DOJ) Part 200 Uniform Requirements, as set out at 2 C.F.R. 200.414(f).
Note: This rule does not eliminate or alter the JAG-specific restriction in federal law that charges for administrative costs may not exceed 10 percent of the award amount, regardless of the approved indirect cost rate.
An applicant with a current (that is, unexpired) federally approved indirect cost rate is to attach a copy of the indirect cost rate agreement to the application. An applicant that does not have a current federally approved rate may request one through its cognizant federal agency, which will review all documentation and approve a rate for the applicant entity, or, if the applicant’s accounting system permits, applicants may propose to allocate costs in the direct cost categories.
For assistance with identifying the appropriate cognizant federal agency for indirect costs, please contact the OCFO Customer Service Center at 1–800–458–0786 or at ask.ocfo@usdoj.gov. If DOJ is the cognizant federal agency, applicants may obtain information needed to submit an indirect cost rate proposal at: www.ojp.gov/funding/Apply/Resources/IndirectCosts.pdf.
Certain OJP recipients have the option of electing to use the “de minimis” indirect cost rate. An applicant that is eligible to use the “de minimis” rate that wishes to use the “de minimis” rate should attach written documentation to the application that advises OJP of both: (1) the applicant’s eligibility to use the “de minimis” rate, and (2) its election to do so. If an eligible applicant elects the “de minimis” rate, costs must be consistently charged as either indirect or direct costs, but may not be double charged or inconsistently charged as both. The “de minimis” rate may no longer be used once an approved federally-negotiated indirect cost rate is in place. (No entity that ever has had a federally approved negotiated indirect cost rate is eligible to use the “de minimis” rate.)
6. Tribal Authorizing Resolution (if applicable) An applicant that proposes to provide direct services or assistance to residents on tribal lands should include in its application a resolution, a letter, affidavit, or other documentation, as appropriate, that demonstrates (as a legal matter) that the applicant has the requisite authorization from the tribe(s) to implement the proposed project on tribal lands.
OJP will not deny an application for an FY 2017 award for failure to submit such tribal authorizing resolution (or other appropriate documentation) by the application deadline, but a unit of local government will not receive award funds (and its award will include a condition that withholds funds) until it submits the appropriate documentation.
7. Financial Management and System of Internal Controls Questionnaire (including applicant disclosure of high-risk status) Every unit of local government is to complete the OJP Financial Management and System of Internal Controls Questionnaire as part of its application. In accordance with the Part 200 Uniform Requirements as set out at 2 C.F.R. 200.205, federal agencies must have in place a framework for evaluating the risks posed by applicants before they receive a federal award.
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8. Applicant Disclosure of High Risk Status Applicants that are currently designated high risk by another federal grant making agency must disclose that status. For purposes of this disclosure, high risk includes any status under which a federal awarding agency provides additional oversight due to the applicant’s past performance, or other programmatic or financial concerns with the applicant. If an applicant is designated high risk by another federal awarding agency, the applicant must provide the following information:
• The federal agency that currently designated the applicant as high risk • Date the applicant was designated high risk • The high risk point of contact at that federal awarding agency (name, phone number,
and email address). • Reasons for the high risk status, as set out by the federal awarding agency
OJP seeks this information to help ensure appropriate federal oversight of OJP awards. An applicant that is considered “high risk” by another federal awarding agency is not automatically disqualified from receiving an OJP award. OJP may, however, consider the information in award decisions, and may impose additional OJP oversight of any award under this solicitation (including through the conditions that accompany the award document).
9. Disclosure of Lobbying Activities An applicant that expends any funds for lobbying activities is to provide all of the information requested on the form Disclosure of Lobbying Activities (SF-LLL).
10. Certifications and Assurances by the Chief Executive of the Applicant Government A JAG application is not complete, and a unit of local government may not receive award funds, unless the chief executive of the applicant unit of local government (e.g., the mayor) properly executes, and the unit of local government submits, the “Certifications and Assurances by the Chief Executive of the Applicant Government” attached to this solicitation as Appendix I.
OJP will not deny an application for an FY 2017 award for failure to submit these “Certifications and Assurances by the Chief Executive of the Applicant Government” by the application deadline, but a unit of local government will not receive award funds (and its award will include a condition that withholds funds) until it submits these certifications and assurances, properly executed by the chief executive of the unit of local government (e.g., the mayor).
11. Certification of Compliance with 8 U.S.C. § 1373 by the Chief Legal Officer of the Applicant Government The chief legal officer of an applicant unit of local government (e.g., the General Counsel) is to carefully review the “State or Local Government: FY 2017 Certification of Compliance with 8 U.S.C. § 1373” that is attached as Appendix II to this solicitation. If the chief legal officer determines that he or she may execute the certification, the unit of local government is to submit the certification as part of its application. (Note: this requirement does not apply to Indian tribal governments.)
As discussed further below, a unit of local government (other than an Indian tribal government) applicant will be unable to make a valid award acceptance of an FY 2017 JAG
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award unless and until a properly executed certification by its chief legal officer is received by OJP on or before the day the unit of local government submits an executed award document.

12. Additional Attachments

(a) Applicant Disclosure of Pending Applications Each applicant is to disclose whether it has (or is proposed as a subrecipient under) any pending applications for federally funded grants or cooperative agreements that (1) include requests for funding to support the same project being proposed in the application under this solicitation and (2) would cover identical cost items outlined in the budget submitted to OJP as part of the application under this solicitation. The applicant is to disclose applications made directly to federal awarding agencies, and also applications for subawards of federal funds (e.g., applications to State agencies that will subaward (“subgrant”) federal funds).

OJP seeks this information to help avoid any inappropriate duplication of funding. Leveraging multiple funding sources in a complementary manner to implement comprehensive programs or projects is encouraged and is not seen as inappropriate duplication.

Each applicant that has one or more pending applications as described above is to provide the following information about pending applications submitted within the last 12 months:

• The federal or State funding agency • The solicitation name/project name • The point of contact information at the applicable federal or State funding agency

Federal or State Funding Agency
DOJ/Office of Community Oriented Policing Services (COPS) Health & Human Services/ Substance Abuse and Mental Health Services Administration

Solicitation Name/Phone/Email for Point of Contact at

Name/Project Federal or State Funding Agency

SAMPLE Name
COPS Hiring

Jane Doe, 202/000-0000; jane.doe@usdoj.gov

Program

Drug-Free Communities Mentoring Program/ North County Youth Mentoring Program

John Doe, 202/000-0000; john.doe@hhs.gov

Each applicant should include the table as a separate attachment to its application. The file should be named “Disclosure of Pending Applications.” The applicant Legal Name on the application must match the entity named on the disclosure of pending applications statement.

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Any applicant that does not have any pending applications as described above is to submit, as a separate attachment, a statement to this effect: “[Applicant Name on SF424] does not have (and is not proposed as a subrecipient under) any pending applications submitted within the last 12 months for federally funded grants or cooperative agreements (or for subawards under federal grants or cooperative agreements) that request funding to support the same project being proposed in this application to OJP and that would cover identical cost items outlined in the budget submitted as part of this application.”
(b) Research and Evaluation Independence and Integrity (if applicable) If an application involves research (including research and development) and/or evaluation, the applicant must demonstrate research/evaluation independence and integrity, including appropriate safeguards, before it may receive award funds. The applicant must demonstrate independence and integrity regarding both this proposed research and/or evaluation, and any current or prior related projects.
Each application should include an attachment that addresses both i. and ii. below.
i. For purposes of this solicitation, each applicant is to document research and evaluation independence and integrity by including one of the following two items:
a. A specific assurance that the applicant has reviewed its application to identify any actual or potential apparent conflicts of interest (including through review of pertinent information on the principal investigator, any co-principal investigators, and any subrecipients), and that the applicant has identified no such conflicts of interest—whether personal or financial or organizational (including on the part of the applicant entity or on the part of staff, investigators, or subrecipients)—that could affect the independence or integrity of the research, including the design, conduct, and reporting of the research.
OR
b. A specific description of actual or potential apparent conflicts of interest that the applicant has identified—including through review of pertinent information on the principal investigator, any co-principal investigators, and any subrecipients—that could affect the independence or integrity of the research, including the design, conduct, or reporting of the research. These conflicts may be personal (e.g., on the part of investigators or other staff), financial, or organizational (related to the applicant or any subrecipient entity). Some examples of potential investigator (or other personal) conflict situations are those in which an investigator would be in a position to evaluate a spouse’s work product (actual conflict), or an investigator would be in a position to evaluate the work of a former or current colleague (potential apparent conflict). With regard to potential organizational conflicts of interest, as one example, generally an organization would not be given an award to evaluate a project, if that organization had itself provided substantial prior technical assistance to that specific project or a location implementing the project (whether funded by OJP or other sources), because the organization in such an
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instance might appear to be evaluating the effectiveness of its own prior work. The key is whether a reasonable person understanding all of the facts would be able to have confidence that the results of any research or evaluation project are objective and reliable. Any outside personal or financial interest that casts doubt on that objectivity and reliability of an evaluation or research product is a problem and must be disclosed.
ii. In addition, for purposes of this solicitation, each applicant is to address possible mitigation of research integrity concerns by including, at a minimum, one of the following two items:
a. If an applicant reasonably believes that no actual or potential apparent conflicts of interest (personal, financial, or organizational) exist, then the applicant should provide a brief narrative explanation of how and why it reached that conclusion. The applicant also is to include an explanation of the specific processes and procedures that the applicant has in place, or will put in place, to identify and prevent (or, at the very least, mitigate) any such conflicts of interest pertinent to the funded project during the period of performance. Documentation that may be helpful in this regard may include organizational codes of ethics/conduct and policies regarding organizational, personal, and financial conflicts of interest. There is no guarantee that the plan, if any, will be accepted as proposed.
OR
b. If the applicant has identified actual or potential apparent conflicts of interest (personal, financial, or organizational) that could affect the independence and integrity of the research, including the design, conduct, or reporting of the research, the applicant is to provide a specific and robust mitigation plan to address each of those conflicts. At a minimum, the applicant is expected to explain the specific processes and procedures that the applicant has in place, or will put in place, to identify and eliminate (or, at the very least, mitigate) any such conflicts of interest pertinent to the funded project during the period of performance. Documentation that may be helpful in this regard may include organizational codes of ethics/conduct and policies regarding organizational, personal, and financial conflicts of interest. There is no guarantee that the plan, if any, will be accepted as proposed.
OJP will assess research and evaluation independence and integrity based on considerations such as the adequacy of the applicant’s efforts to identify factors that could affect the objectivity or integrity of the proposed staff and/or the applicant entity (and any subrecipients) in carrying out the research, development, or evaluation activity; and the adequacy of the applicant’s existing or proposed remedies to control any such factors.
(c) Local Governing Body Review Applicants must submit information via the Certification and Assurances by the Chief Executive (See Appendix I) which documents that the JAG application was made available for review by the governing body of the unit of local government, or to an organization designated by that governing body, for a period that was not less than 30
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days before the application was submitted to BJA. The same Chief Executive Certification will also specify that an opportunity to comment on this application was provided to citizens prior to the application submission to the extent applicable law or established procedures make such opportunity available. In the past, this has been accomplished via submission of specific review dates; now OJP will only accept a chief executive’s certification to attest to these facts. Units of local government may continue to submit actual dates of review should they wish to do so, in addition to the submission of the Chief Executive Certification.
How to Apply An applicant must submit its application through the Grants Management System (GMS), which provides support for the application, award, and management of awards at OJP. Each applicant entity must register in GMS for each specific funding opportunity. Although the registration and submission deadlines are the same, OJP urges each applicant entity to register promptly, especially if this is the first time the applicant is using the system. Find complete instructions on how to register and submit an application in GMS at www.ojp.gov/gmscbt/. An applicant that experiences technical difficulties during this process should email GMS.HelpDesk@usdoj.gov or call 888–549–9901 (option 3), 24 hours every day, including during federal holidays. OJP recommends that each applicant register promptly to prevent delays in submitting an application package by the deadline.
Note on File Types: GMS does not accept executable file types as application attachments. These disallowed file types include, but are not limited to, the following extensions: “.com,” “.bat,” “.exe,” “.vbs,” “.cfg,” “.dat,” “.db,” “.dbf,” “.dll,” “.ini,” “.log,” “.ora,” “.sys,” and “.zip.”
Every applicant entity must comply with all applicable System for Award Management (SAM) and unique entity identifier (currently, a Data Universal Numbering System [DUNS] number) requirements. If an applicant entity has not fully complied with applicable SAM and unique identifier requirements by the time OJP makes award decisions, OJP may determine that the applicant is not qualified to receive an award and may use that determination as a basis for making the award to a different applicant.
All applicants should complete the following steps:
1. Acquire a unique entity identifier (DUNS number). In general, the Office of Management and Budget requires every applicant for a federal award (other than an individual) to include a “unique entity identifier” in each application, including an application for a supplemental award. Currently, a DUNS number is the required unique entity identifier.
A DUNS number is a unique nine-digit identification number provided by the commercial company Dun and Bradstreet. This unique entity identifier is used for tracking purposes, and to validate address and point of contact information for applicants, recipients, and subrecipients. It will be used throughout the life cycle of an OJP award. Obtaining a DUNS number is a free, one-time activity. Call Dun and Bradstreet at 866–705–5711 to obtain a DUNS number or apply online at www.dnb.com. A DUNS number is usually received within 1–2 business days.
2. Acquire registration with the SAM. SAM is the repository for certain standard information about federal financial assistance applicants, recipients, and subrecipients. All applicants for OJP awards (other than individuals) must maintain current registrations in the SAM database.
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Each applicant must update or renew its SAM registration at least annually to maintain an active status. SAM registration and renewal can take as long as 10 business days to complete.
Information about SAM registration procedures can be accessed at https://www.sam.gov/.
3. Acquire a GMS username and password. New users must create a GMS profile by selecting the “First Time User” link under the sign-in box of the GMS home page. For more information on how to register in GMS, go to www.ojp.gov/gmscbt. Previously registered applicants should ensure, prior to applying, that the user profile information is up-to-date in GMS (including, but not limited to, address, legal name of agency and authorized representative) as this information is populated in any new application.
4. Verify the SAM (formerly CCR) registration in GMS. OJP requires each applicant to verify its SAM registration in GMS. Once logged into GMS, click the “CCR Claim” link on the left side of the default screen. Click the submit button to verify the SAM (formerly CCR) registration.
5. Search for the funding opportunity on GMS. After logging into GMS or completing the GMS profile for username and password, go to the “Funding Opportunities” link on the left side of the page. Select BJA and FY 17 Edward Byrne Memorial Local Justice Assistance Grant (JAG) Program.
6. Register by selecting the “Apply Online” button associated with the funding opportunity title. The search results from step 5 will display the “funding opportunity” (solicitation) title along with the registration and application deadlines for this solicitation. Select the “Apply Online” button in the “Action” column to register for this solicitation and create an application in the system.
7. Follow the directions in GMS to submit an application consistent with this solicitation. Once the application is submitted, GMS will display a confirmation screen stating the submission was successful. Important: In some instances, applicants must wait for GMS approval before submitting an application. OJP urges each applicant to submit its application at least 72 hours prior to the application due date.
Note: Application Versions If an applicant submits multiple versions of the same application, OJP will review only the most recent system-validated version submitted.
Experiencing Unforeseen GMS Technical Issues An applicant that experiences unforeseen GMS technical issues beyond its control that prevent it from submitting its application by the deadline may contact the GMS Help Desk or the SAM Help Desk (Federal Service Desk) to report the technical issue and receive a tracking number. The applicant is expected to email the NCJRS Response Center identified in the Contact Information section on the title page within 24 hours after the application deadline to request approval to submit its application after the deadline. The applicant’s email must describe the technical difficulties, and must include a timeline of the applicant’s submission efforts, the complete grant application, the applicant’s DUNS number, and any GMS Help Desk or SAM tracking number(s).
Note: OJP does not automatically approve requests to submit a late application. After OJP reviews the applicant’s request, and contacts the GMS Help Desk to verify the reported technical issues, OJP will inform the applicant whether the request to submit a late application
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has been approved or denied. If OJP determines that the untimely application submission was due to the applicant’s failure to follow all required procedures, OJP will deny the applicant’s request to submit its application.
The following conditions generally are insufficient to justify late submissions to OJP solicitations:
• Failure to register in SAM or GMS in sufficient time (SAM registration and renewal can take as long as 10 business days to complete.)
• Failure to follow GMS instructions on how to register and apply as posted on the GMS website
• Failure to follow each instruction in the OJP solicitation • Technical issues with the applicant’s computer or information technology environment
such as issues with firewalls
E. Application Review Information
Review Process OJP is committed to ensuring a fair and open process for making awards. BJA reviews the application to make sure that the information presented is reasonable, understandable, measurable, and achievable, as well as consistent with the solicitation. BJA will also review applications to help ensure that JAG program-statute requirements have been met.
Pursuant to the (DOJ) Part 200 Uniform Requirements, before awards are made, OJP also reviews information related to the degree of risk posed by applicants. Among other things, to help assess whether an applicant that has one or more prior federal awards has a satisfactory record with respect to performance, integrity, and business ethics, OJP checks whether the applicant is listed in SAM as excluded from receiving a federal award. In addition, if OJP anticipates that an award will exceed $150,000 in federal funds, OJP also must review and consider any information about the applicant that appears in the non-public segment of the integrity and performance system accessible through SAM (currently, the Federal Awardee Performance and Integrity Information System; “FAPIIS”).
Important note on FAPIIS: An applicant, at its option, may review and comment on any information about itself that currently appears in FAPIIS and was entered by a federal awarding agency. OJP will consider any such comments by the applicant, in addition to the other information in FAPIIS, in its assessment of the risk posed by the applicant.
The evaluation of risks goes beyond information in SAM, however. OJP itself has in place a framework for evaluating risks posed by applicants. OJP takes into account information pertinent to matters such as—
1. Applicant financial stability and fiscal integrity 2. Quality of the management systems of the applicant, and the applicant’s ability to meet
prescribed management standards, including those outlined in the DOJ Grants Financial Guide 3. Applicant’s history of performance under OJP and other DOJ awards (including compliance with reporting requirements and award conditions), as well as awards from other federal agencies
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4. Reports and findings from audits of the applicant, including audits under the (DOJ) Part 200 Uniform Requirements
5. Applicant's ability to comply with statutory and regulatory requirements, and to effectively implement other award requirements
Absent explicit statutory authorization or written delegation of authority to the contrary, the Assistant Attorney General will make all final award decisions.
F. Federal Award Administration Information
Federal Award Notices OJP expects to issue award notifications by September 30, 2017. OJP sends award notifications by email through GMS to the individuals listed in the application as the point of contact and the authorizing official. The email notification includes detailed instructions on how to access and view the award documents, and steps to take in GMS to start the award acceptance process. GMS automatically issues the notifications at 9:00 p.m. eastern time on the award date.
NOTE: In order validly to accept an award under the FY 2017 JAG Program, a unit of local government (other than an Indian tribal government) must submit to GMS the certification by its chief legal officer regarding compliance with 8 U.S.C. § 1373, executed using the form that appears in Appendix II. (The form also may be downloaded at https://ojp.gov/funding/Explore/SampleCertifications-8USC1373.htm.) Unless the executed certification either (1) is submitted to OJP together with the signed award document or (2) is uploaded in GMS no later than the day the signed award document is submitted, OJP will reject as invalid any submission by a unit of local government (other than an Indian tribal government) that purports to accept an award under this solicitation.
Rejection of an initial submission as an invalid award acceptance is not a denial of the award. Consistent with award requirements, once the unit of local government does submit the necessary certification regarding 8 U.S.C. § 1373, the unit of local government will be permitted to submit an award document executed by the unit of local government on or after the date of that certification.
Also, in order for a unit of local government applicant validly to accept an award under the FY 2017 JAG Program, an individual with the necessary authority to bind the applicant will be required to log in; execute a set of legal certifications and a set of legal assurances; designate a financial point of contact; thoroughly review the award, including all award conditions; and sign and accept the award. The award acceptance process requires physical signature of the award document by the authorized representative and the scanning of the fully executed award document (along with the required certification regarding 8 U.S.C. § 1373, if not already uploaded in GMS) to OJP.
Statutory and Regulatory Requirements; Award Conditions If selected for funding, in addition to implementing the funded project consistent with the OJPapproved application, the recipient must comply with all award requirements (including all award conditions), as well as all applicable requirements of federal statutes and regulations (including those referred to in assurances and certifications executed as part of the application or in
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connection with award acceptance, and administrative and policy requirements set by statute or regulation).
OJP strongly encourages prospective applicants to review information on post-award legal requirements generally applicable to FY 2017 OJP awards and common OJP award conditions prior to submitting an application.
Applicants should consult the “Overview of Legal Requirements Generally Applicable to OJP Grants and Cooperative Agreements - FY 2017 Awards,” available in the OJP Funding Resource Center. In addition, applicants should examine the following two legal documents, as each successful applicant must execute both documents in GMS before it may receive any award funds.
• Certifications Regarding Lobbying; Debarment, Suspension and Other Responsibility Matters; and Drug-Free Workplace Requirements
• OJP Certified Standard Assurances (attached to this solicitation as Appendix IV)
The web pages accessible through the “Overview of Legal Requirements Generally Applicable to OJP Grants and Cooperative Agreements - FY 2017 Awards” are intended to give applicants for OJP awards a general overview of important statutes, regulations, and award conditions that apply to many (or in some cases, all) OJP grants and cooperative agreements awarded in FY 2017. Individual OJP awards typically also will include additional award conditions. Those additional conditions may relate to the particular statute, program, or solicitation under which the award is made; to the substance of the funded application; to the recipient's performance under other federal awards; to the recipient's legal status (e.g., as a for-profit entity); or to other pertinent considerations.
Individual FY 2017 JAG awards will include two new express conditions that, with respect to the “program or activity” that would be funded by the FY 2017 award, are designed to ensure that States and units of local government that receive funds from the FY 2017 JAG award: (1) permit personnel of the U.S. Department of Homeland Security (DHS) to access any correctional or detention facility in order to meet with an alien (or an individual believed to be an alien) and inquire as to his or her right to be or remain in the United States and (2) provide at least 48 hours’ advance notice to DHS regarding the scheduled release date and time of an alien in the jurisdiction’s custody when DHS requests such notice in order to take custody of the alien pursuant to the Immigration and Nationality Act.
Compliance with the requirements of the two foregoing new award conditions will be an authorized and priority purpose of the award. The reasonable costs (to the extent not reimbursed under any other federal program) of developing and putting into place statutes, rules, regulations, policies, or practices as required by these conditions, and to honor any duly authorized requests from DHS that is encompassed by these conditions, will be allowable costs under the award.
General Information about Post-Federal Award Reporting Requirements A unit of local government recipient of an award under this solicitation will be required to submit the following reports and data:
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Required reports. Recipients typically must submit quarterly financial status reports, semiannual progress reports, final financial and progress reports, and, if applicable, an annual audit report in accordance with the (DOJ) Part 200 Uniform Requirements or specific award conditions. Future awards and fund drawdowns may be withheld if reports are delinquent. (In appropriate cases, OJP may require additional reports.)
Awards that exceed $500,000 will include an additional condition that, under specific circumstances, will require the recipient to report (to FAPIIS) information on civil, criminal, and administrative proceedings connected with (or connected to the performance of) either the OJP award or any other grant, cooperative agreement, or procurement contract from the federal government. Additional information on this reporting requirement appears in the text of the award condition posted on the OJP website at: https://ojp.gov/funding/FAPIIS.htm
Data on performance measures. In addition to required reports, each recipient of an award under this solicitation also must provide data that measure the results of the work done under the award. To demonstrate program progress and success, as well as to assist DOJ with fulfilling its responsibilities under GPRA and the GPRA Modernization Act of 2010, OJP will require State recipients to provide accountability metrics data. Accountability metrics data must be submitted through BJA’s Performance Measurement Tool (PMT), available at https://bjapmt.ojp.gov. The accountability measures are available at: https://bjapmt.ojp.gov/help/jagdocs.html. (Note that if a law enforcement agency receives JAG funds from a State, the State must submit quarterly accountability metrics data related to training that officers have received on use of force, racial and ethnic bias, de-escalation of conflict, and constructive engagement with the public.)
OJP may restrict access to award funds if a recipient of an OJP award fails to report required performance measures data in a timely manner.
G. Federal Awarding Agency Contact(s)
For OJP contact(s), see the title page of this solicitation.
For contact information for GMS, see the title page.
H. Other Information
Freedom of Information Act and Privacy Act (5 U.S.C. § 552 and 5 U.S.C. § 552a) All applications submitted to OJP (including all attachments to applications) are subject to the federal Freedom of Information Act (FOIA) and to the Privacy Act. By law, DOJ may withhold information that is responsive to a request pursuant to FOIA if DOJ determines that the responsive information either is protected under the Privacy Act or falls within the scope of one of nine statutory exemptions under FOIA. DOJ cannot agree in advance of a request pursuant to FOIA not to release some or all portions of an application.
In its review of records that are responsive to a FOIA request, OJP will withhold information in those records that plainly falls within the scope of the Privacy Act or one of the statutory exemptions under FOIA. (Some examples include certain types of information in budgets, and names and contact information for project staff other than certain key personnel.) In appropriate
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circumstances, OJP will request the views of the applicant/recipient that submitted a responsive document. For example, if OJP receives a request pursuant to FOIA for an application submitted by a nonprofit or for-profit organization or an institution of higher education, or for an application that involves research, OJP typically will contact the applicant/recipient that submitted the application and ask it to identify—quite precisely—any particular information in the application that applicant/recipient believes falls under a FOIA exemption, the specific exemption it believes applies, and why. After considering the submission by the applicant/recipient, OJP makes an independent assessment regarding withholding information. OJP generally follows a similar process for requests pursuant to FOIA for applications that may contain law-enforcement sensitive information. Provide Feedback to OJP To assist OJP in improving its application and award processes, OJP encourages applicants to provide feedback on this solicitation, the application submission process, and/or the application review process. Provide feedback to OJPSolicitationFeedback@usdoj.gov. IMPORTANT: This email is for feedback and suggestions only. OJP does not reply to messages it receives in this mailbox. A prospective applicant that has specific questions on any program or technical aspect of the solicitation must use the appropriate telephone number or email listed on the front of this solicitation document to obtain information. These contacts are provided to help ensure that prospective applicants can directly reach an individual who can address specific questions in a timely manner. If you are interested in being a reviewer for other OJP grant applications, please email your résumé to ojppeerreview@lmsolas.com. (Do not send your résumé to the OJP Solicitation Feedback email account.) Note: Neither you nor anyone else from your organization or entity can be a peer reviewer in a competition in which you or your organization/entity has submitted an application.
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Application Checklist

Edward Byrne Memorial Justice Assistance Grant (JAG) Program: FY 2017 Local Solicitation

This application checklist has been created as an aid in developing an application.

What an Applicant Should Do:

Prior to Registering in GMS:

_____ Acquire a DUNS Number

(see page 27)

_____ Acquire or renew registration with SAM

(see page 27)

To Register with GMS:

_____ For new users, acquire a GMS username and password*

(see page 27)

_____ For existing users, check GMS username and password* to ensure account access

(see page 27)

_____ Verify SAM registration in GMS

(see page 27)

_____ Search for correct funding opportunity in GMS

(see page 27)

_____ Select correct funding opportunity in GMS

(see page 27)

_____ Register by selecting the “Apply Online” button associated with the funding opportunity

title

(see page 27)

_____ Read OJP policy and guidance on conference approval, planning, and reporting

available at ojp.gov/financialguide/DOJ/PostawardRequirements/chapter3.10a.htm

(see page 14)

_____ If experiencing technical difficulties in GMS, contact the NCJRS Response Center

(see page 2)

*Password Reset Notice – GMS users are reminded that while password reset capabilities exist, this function is only associated with points of contact designated within GMS at the time the account was established. Neither OJP nor the GMS Help Desk will initiate a password reset unless requested by the authorized official or a designated point of contact associated with an award or application.

Overview of Post-Award Legal Requirements:

_____ Review the “Overview of Legal Requirements Generally Applicable to OJP Grants and Cooperative Agreements - FY 2017 Awards” in the OJP Funding Resource Center.

Scope Requirement:

_____ The federal amount requested is within the allowable limit(s) of the FY 2017 JAG Allocations List as listed on BJA’s JAG web page.

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What an Application Should Include:

_____ Application for Federal Assistance (SF-424)

(see page 16)

_____ Project Abstract

(see page 16)

_____ Program Narrative

(see page 17)

_____ Budget Detail Worksheet

(see page 18)

_____ Budget Narrative

(see page 18)

_____ Indirect Cost Rate Agreement (if applicable)

(see page 21)

_____ Tribal Authorizing Resolution (if applicable)

(see page 21)

_____ Financial Management and System of Internal Controls Questionnaire (see page 22)

_____ Disclosure of Lobbying Activities (SF-LLL) (if applicable)

(see page 22)

_____ Certifications and Assurances by Chief Executive

(see page 22)

_____ Certification of Compliance with 8 U.S.C. § 1373 by Chief Legal Officer (Note: this

requirement does not apply to Indian tribal governments.)

(see page 23)

_____ OJP Certified Standard Assurances

(see page 40)

_____ Additional Attachments

_____ Applicant Disclosure of Pending Applications

(see page 23)

_____ Research and Evaluation Independence and Integrity (if applicable)

(see page 24)

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Appendix I
Certifications and Assurances by the Chief Executive of the Applicant Government
Template for use by chief executive of the “Unit of local government” (e.g., the mayor)
Note: By law, for purposes of the JAG Program, the term “unit of local government ” includes a town, township, village, parish, city, county, borough, or other general purpose political subdivision of a state; or, it may also be a federally recognized Indian tribal government that performs law enforcement functions (as determined by the Secretary of the Interior). A unit of local government may be any law enforcement district or judicial enforcement district established under applicable State law with authority to independently establish a budget and impose taxes; for example, in Louisiana, a unit of local government means a district attorney or parish sheriff.
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Appendix II
State or Local Government: Certification of Compliance with 8 U.S.C. § 1373
Template for use by the chief legal officer of the “Local Government” (e.g., the General Counsel) (Note: this Certification is not required by Indian tribal
government applicants.) Available for download at: https://ojp.gov/funding/Explore/SampleCertifications-8USC1373.htm
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Appendix III
8 U.S.C. § 1373 (as in effect on June 21, 2017)
Communication between government agencies and the Immigration and Naturalization Service
(a) In general Notwithstanding any other provision of Federal, State, or local law, a Federal, State, or local government entity or official may not prohibit, or in any way restrict, any government entity or official from sending to, or receiving from, the Immigration and Naturalization Service information regarding the citizenship or immigration status, lawful or unlawful, of any individual. (b) Additional authority of government entities Notwithstanding any other provision of Federal, State, or local law, no person or agency may prohibit, or in any way restrict, a Federal, State, or local government entity from doing any of the following with respect to information regarding the immigration status, lawful or unlawful, of any individual: (1) Sending such information to, or requesting or receiving such information from, the Immigration and Naturalization Service. (2) Maintaining such information. (3) Exchanging such information with any other Federal, State, or local government entity. (c) Obligation to respond to inquiries The Immigration and Naturalization Service shall respond to an inquiry by a Federal, State, or local government agency, seeking to verify or ascertain the citizenship or immigration status of any individual within the jurisdiction of the agency for any purpose authorized by law, by providing the requested verification or status information.
See also provisions set out at (or referenced in) 8 U.S.C. § 1551 note (“Abolition … and Transfer of Functions”)
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Appendix IV
OJP Certified Standard Assurances
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EXHIBIT 4

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U.S. Department of Justice Office of Justice Programs
Bureau of Justice Assistance

Grant

PAGE 1 OF 20

1 RECIPIENT NAME AND ADDRESS (Including Zip Code) County of Greenville 301 University Ridge, Suite 600 Greeville, SC 29601
2a GRANTEE IRS/VENDOR NO
[REDACTED]
2b GRANTEE DUNS NO
[REDACTED]
3 PROJECT TITLE Judicial Support and Law Enforcement Enhancements 2017

4 AWARD NUMBER: 2017-DJ-BX-0002

5 PROJECT PERIOD: FROM BUDGET PERIOD: FROM

10/01/2016 TO 09/30/2020 10/01/2016 TO 09/30/2020

6 AWARD DATE 08/23/2017
8 SUPPLEMENT NUMBER 00

7 ACTION Initial

9 PREVIOUS AWARD AMOUNT 10 AMOUNT OF THIS AWARD

$ 0 $ 163,164

11 TOTAL AWARD

$ 163,164

12 SPECIAL CONDITIONS
THE ABOVE GRANT PROJECT IS APPROVED SUBJECT TO SUCH CONDITIONS OR LIMITATIONS AS ARE SET FORTH ON THE ATTACHED PAGE(S)

13 STATUTORY AUTHORITY FOR GRANT This project is supported under FY17(BJA - JAG State and JAG Local) Title I of Pub L No 90-351 (generally codified at 42 U S C 3711 - 3797ff-5), including subpart 1 of part E (codified at 42 U S C 3750 - 3758); see also 28 U S C 530C(a)
14 CATALOG OF DOMESTIC FEDERAL ASSISTANCE (CFDA Number) 16 738 - Edward Byrne Memorial Justice Assistance Grant Program
15 METHOD OF PAYMENT GPRS

AGENCY APPROVAL 16 TYPED NAME AND TITLE OF APPROVING OFFICIAL
Alan R Hanson Acting Assistant Attorney General

GRANTEE ACCEPTANCE 18 TYPED NAME AND TITLE OF AUTHORIZED GRANTEE OFFICIAL
Joseph M Kernell County Administrator

17 SIGNATURE OF APPROVING OFFICIAL

19 SIGNATURE OF AUTHORIZED RECIPIENT OFFICIAL 19A DATE

AGENCY USE ONLY

20 ACCOUNTING CLASSIFICATION CODES

FISCAL FUND BUD

DIV

YEAR CODE ACT OFC REG SUB POMS AMOUNT

21 SDJUGT0339

X

B

DJ

80

00

00

163164

OJP FORM 4000/2 (REV 5-87) PREVIOUS EDITIONS ARE OBSOLETE OJP FORM 4000/2 (REV 4-88)

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U.S. Department of Justice Office of Justice Programs
Bureau of Justice Assistance

AWARD CONTINUATION SHEET
Grant

PAGE 2 OF 20

PROJECT NUMBER 2017-DJ-BX-0002

AWARD DATE

08/23/2017

SPECIAL CONDITIONS
1. Requirements of the award; remedies for non-compliance or for materially false statements
The conditions of this award are material requirements of the award. Compliance with any certifications or assurances submitted by or on behalf of the recipient that relate to conduct during the period of performance also is a material requirement of this award.
Failure to comply with any one or more of these award requirements -- whether a condition set out in full below, a condition incorporated by reference below, or a certification or assurance related to conduct during the award period -may result in the Office of Justice Programs ("OJP") taking appropriate action with respect to the recipient and the award. Among other things, the OJP may withhold award funds, disallow costs, or suspend or terminate the award. The Department of Justice ("DOJ"), including OJP, also may take other legal action as appropriate.
Any materially false, fictitious, or fraudulent statement to the federal government related to this award (or concealment or omission of a material fact) may be the subject of criminal prosecution (including under 18 U.S.C. 1001 and/or 1621, and/or 42 U.S.C. 3795a), and also may lead to imposition of civil penalties and administrative remedies for false claims or otherwise (including under 31 U.S.C. 3729-3730 and 3801-3812).
Should any provision of a requirement of this award be held to be invalid or unenforceable by its terms, that provision shall first be applied with a limited construction so as to give it the maximum effect permitted by law. Should it be held, instead, that the provision is utterly invalid or -unenforceable, such provision shall be deemed severable from this award.
2. Applicability of Part 200 Uniform Requirements
The Uniform Administrative Requirements, Cost Principles, and Audit Requirements in 2 C.F.R. Part 200, as adopted and supplemented by DOJ in 2 C.F.R. Part 2800 (together, the "Part 200 Uniform Requirements") apply to this FY 2017 award from OJP.
The Part 200 Uniform Requirements were first adopted by DOJ on December 26, 2014. If this FY 2017 award supplements funds previously awarded by OJP under the same award number (e.g., funds awarded during or before December 2014), the Part 200 Uniform Requirements apply with respect to all funds under that award number (regardless of the award date, and regardless of whether derived from the initial award or a supplemental award) that are obligated on or after the acceptance date of this FY 2017 award.
For more information and resources on the Part 200 Uniform Requirements as they relate to OJP awards and subawards ("subgrants"), see the OJP website at https://ojp.gov/funding/Part200UniformRequirements htm.
In the event that an award-related question arises from documents or other materials prepared or distributed by OJP that may appear to conflict with, or differ in some way from, the provisions of the Part 200 Uniform Requirements, the recipient is to contact OJP promptly for clarification.
3. Compliance with DOJ Grants Financial Guide
The recipient agrees to comply with the DOJ Grants Financial Guide as posted on the OJP website (currently, the "2015 DOJ Grants Financial Guide" available at https://ojp.gov/financialguide/DOJ/index htm), including any updated version that may be posted during the period of performance.

OJP FORM 4000/2 (REV 4-88)

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U.S. Department of Justice Office of Justice Programs
Bureau of Justice Assistance

AWARD CONTINUATION SHEET
Grant

PAGE 3 OF 20

PROJECT NUMBER 2017-DJ-BX-0002

AWARD DATE

08/23/2017

SPECIAL CONDITIONS
4. Required training for Point of Contact and all Financial Points of Contact
Both the Point of Contact (POC) and all Financial Points of Contact (FPOCs) for this award must have successfully completed an "OJP financial management and grant administration training" by 120 days after the date of the recipient's acceptance of the award. Successful completion of such a training on or after January 1, 2015, will satisfy this condition.
In the event that either the POC or an FPOC for this award changes during the period of performance, the new POC or FPOC must have successfully completed an "OJP financial management and grant administration training" by 120 calendar days after-- (1) the date of OJP's approval of the "Change Grantee Contact" GAN (in the case of a new POC), or (2) the date the POC enters information on the new FPOC in GMS (in the case of a new FPOC). Successful completion of such a training on or after January 1, 2015, will satisfy this condition.
A list of OJP trainings that OJP will consider "OJP financial management and grant administration training" for purposes of this condition is available at https://www.ojp.gov/training/fmts htm. All trainings that satisfy this condition include a session on grant fraud prevention and detection.
The recipient should anticipate that OJP will immediately withhold ("freeze") award funds if the recipient fails to comply with this condition. The recipient's failure to comply also may lead OJP to impose additional appropriate conditions on this award.
5. Requirements related to "de minimis" indirect cost rate
A recipient that is eligible under the Part 200 Uniform Requirements and other applicable law to use the "de minimis" indirect cost rate described in 2 C.F.R. 200.414(f), and that elects to use the "de minimis" indirect cost rate, must advise OJP in writing of both its eligibility and its election, and must comply with all associated requirements in the Part 200 Uniform Requirements. The "de minimis" rate may be applied only to modified total direct costs (MTDC) as defined by the Part 200 Uniform Requirements.
6. Requirement to report potentially duplicative funding
If the recipient currently has other active awards of federal funds, or if the recipient receives any other award of federal funds during the period of performance for this award, the recipient promptly must determine whether funds from any of those other federal awards have been, are being, or are to be used (in whole or in part) for one or more of the identical cost items for which funds are provided under this award. If so, the recipient must promptly notify the DOJ awarding agency (OJP or OVW, as appropriate) in writing of the potential duplication, and, if so requested by the DOJ awarding agency, must seek a budget-modification or change-of-project-scope grant adjustment notice (GAN) to eliminate any inappropriate duplication of funding.

OJP FORM 4000/2 (REV 4-88)

Case 2:17-cv-07215 Document 1-4 Filed 09/29/17 Page 5 of 21 Page ID #:94

U.S. Department of Justice Office of Justice Programs
Bureau of Justice Assistance

AWARD CONTINUATION SHEET
Grant

PAGE 4 OF 20

PROJECT NUMBER 2017-DJ-BX-0002

AWARD DATE

08/23/2017

SPECIAL CONDITIONS 7. Requirements related to System for Award Management and Universal Identifier Requirements
The recipient must comply with applicable requirements regarding the System for Award Management (SAM), currently accessible at https://www.sam.gov/. This includes applicable requirements regarding registration with SAM, as well as maintaining the currency of information in SAM.
The recipient also must comply with applicable restrictions on subawards ("subgrants") to first-tier subrecipients (first-tier "subgrantees"), including restrictions on subawards to entities that do not acquire and provide (to the recipient) the unique entity identifier required for SAM registration.
The details of the recipient's obligations related to SAM and to unique entity identifiers are posted on the OJP web site at https://ojp.gov/funding/Explore/SAM htm (Award condition: System for Award Management (SAM) and Universal Identifier Requirements), and are incorporated by reference here.
This condition does not apply to an award to an individual who received the award as a natural person (i.e., unrelated to any business or non-profit organization that he or she may own or operate in his or her name).
8. All subawards ("subgrants") must have specific federal authorization
The recipient, and any subrecipient ("subgrantee") at any tier, must comply with all applicable requirements for authorization of any subaward. This condition applies to agreements that -- for purposes of federal grants administrative requirements -- OJP considers a "subaward" (and therefore does not consider a procurement "contract").
The details of the requirement for authorization of any subaward are posted on the OJP web site at https://ojp.gov/funding/Explore/SubawardAuthorization htm (Award condition: All subawards ("subgrants") must have specific federal authorization), and are incorporated by reference here.
9. Specific post-award approval required to use a noncompetitive approach in any procurement contract that would exceed $150,000
The recipient, and any subrecipient ("subgrantee") at any tier, must comply with all applicable requirements to obtain specific advance approval to use a noncompetitive approach in any procurement contract that would exceed the Simplified Acquisition Threshold (currently, $150,000). This condition applies to agreements that -- for purposes of federal grants administrative requirements -- OJP considers a procurement "contract" (and therefore does not consider a subaward).
The details of the requirement for advance approval to use a noncompetitive approach in a procurement contract under an OJP award are posted on the OJP web site at https://ojp.gov/funding/Explore/NoncompetitiveProcurement htm (Award condition: Specific post-award approval required to use a noncompetitive approach in a procurement contract (if contract would exceed $150,000)), and are incorporated by reference here.

OJP FORM 4000/2 (REV 4-88)

Case 2:17-cv-07215 Document 1-4 Filed 09/29/17 Page 6 of 21 Page ID #:95

U.S. Department of Justice Office of Justice Programs
Bureau of Justice Assistance

AWARD CONTINUATION SHEET
Grant

PAGE 5 OF 20

PROJECT NUMBER 2017-DJ-BX-0002

AWARD DATE

08/23/2017

SPECIAL CONDITIONS 10. Requirements pertaining to prohibited conduct related to trafficking in persons (including reporting requirements and
OJP authority to terminate award)
The recipient, and any subrecipient ("subgrantee") at any tier, must comply with all applicable requirements (including requirements to report allegations) pertaining to prohibited conduct related to the trafficking of persons, whether on the part of recipients, subrecipients ("subgrantees"), or individuals defined (for purposes of this condition) as "employees" of the recipient or of any subrecipient.
The details of the recipient's obligations related to prohibited conduct related to trafficking in persons are posted on the OJP web site at https://ojp.gov/funding/Explore/ProhibitedConduct-Trafficking htm (Award condition: Prohibited conduct by recipients and subrecipients related to trafficking in persons (including reporting requirements and OJP authority to terminate award)), and are incorporated by reference here.
11. Compliance with applicable rules regarding approval, planning, and reporting of conferences, meetings, trainings, and other events
The recipient, and any subrecipient ("subgrantee") at any tier, must comply with all applicable laws, regulations, policies, and official DOJ guidance (including specific cost limits, prior approval and reporting requirements, where applicable) governing the use of federal funds for expenses related to conferences (as that term is defined by DOJ), including the provision of food and/or beverages at such conferences, and costs of attendance at such conferences.
Information on the pertinent DOJ definition of conferences and the rules applicable to this award appears in the DOJ Grants Financial Guide (currently, as section 3.10 of "Postaward Requirements" in the "2015 DOJ Grants Financial Guide").
12. Requirement for data on performance and effectiveness under the award
The recipient must collect and maintain data that measure the performance and effectiveness of work under this award. The data must be provided to OJP in the manner (including within the timeframes) specified by OJP in the program solicitation or other applicable written guidance. Data collection supports compliance with the Government Performance and Results Act (GPRA) and the GPRA Modernization Act of 2010, and other applicable laws.
13. OJP Training Guiding Principles
Any training or training materials that the recipient -- or any subrecipient ("subgrantee") at any tier -- develops or delivers with OJP award funds must adhere to the OJP Training Guiding Principles for Grantees and Subgrantees, available at https://ojp.gov/funding/ojptrainingguidingprinciples htm.
14. Effect of failure to address audit issues
The recipient understands and agrees that the DOJ awarding agency (OJP or OVW, as appropriate) may withhold award funds, or may impose other related requirements, if (as determined by the DOJ awarding agency) the recipient does not satisfactorily and promptly address outstanding issues from audits required by the Part 200 Uniform Requirements (or by the terms of this award), or other outstanding issues that arise in connection with audits, investigations, or reviews of DOJ awards.
15. Potential imposition of additional requirements
The recipient agrees to comply with any additional requirements that may be imposed by the DOJ awarding agency (OJP or OVW, as appropriate) during the period of performance for this award, if the recipient is designated as "highrisk" for purposes of the DOJ high-risk grantee list.

OJP FORM 4000/2 (REV 4-88)

Case 2:17-cv-07215 Document 1-4 Filed 09/29/17 Page 7 of 21 Page ID #:96

U.S. Department of Justice Office of Justice Programs
Bureau of Justice Assistance

AWARD CONTINUATION SHEET
Grant

PAGE 6 OF 20

PROJECT NUMBER 2017-DJ-BX-0002

AWARD DATE

08/23/2017

SPECIAL CONDITIONS
16. Compliance with DOJ regulations pertaining to civil rights and nondiscrimination - 28 C.F.R. Part 42
The recipient, and any subrecipient ("subgrantee") at any tier, must comply with all applicable requirements of 28 C.F.R. Part 42, specifically including any applicable requirements in Subpart E of 28 C.F.R. Part 42 that relate to an equal employment opportunity program.
17. Compliance with DOJ regulations pertaining to civil rights and nondiscrimination - 28 C.F.R. Part 54
The recipient, and any subrecipient ("subgrantee") at any tier, must comply with all applicable requirements of 28 C.F.R. Part 54, which relates to nondiscrimination on the basis of sex in certain "education programs."
18. Compliance with DOJ regulations pertaining to civil rights and nondiscrimination - 28 C.F.R. Part 38
The recipient, and any subrecipient ("subgrantee") at any tier, must comply with all applicable requirements of 28 C.F.R. Part 38, specifically including any applicable requirements regarding written notice to program beneficiaries and prospective program beneficiaries. Part 38 of 28 C.F.R., a DOJ regulation, was amended effective May 4, 2016.
Among other things, 28 C.F.R. Part 38 includes rules that prohibit specific forms of discrimination on the basis of religion, a religious belief, a refusal to hold a religious belief, or refusal to attend or participate in a religious practice. Part 38 also sets out rules and requirements that pertain to recipient and subrecipient ("subgrantee") organizations that engage in or conduct explicitly religious activities, as well as rules and requirements that pertain to recipients and subrecipients that are faith-based or religious organizations.
The text of the regulation, now entitled "Partnerships with Faith-Based and Other Neighborhood Organizations," is available via the Electronic Code of Federal Regulations (currently accessible at https://www.ecfr.gov/cgibin/ECFR?page=browse), by browsing to Title 28-Judicial Administration, Chapter 1, Part 38, under e-CFR "current" data.
19. Restrictions on "lobbying"
In general, as a matter of federal law, federal funds awarded by OJP may not be used by the recipient, or any subrecipient ("subgrantee") at any tier, either directly or indirectly, to support or oppose the enactment, repeal, modification, or adoption of any law, regulation, or policy, at any level of government. See 18 U.S.C. 1913. (There may be exceptions if an applicable federal statute specifically authorizes certain activities that otherwise would be barred by law.)
Another federal law generally prohibits federal funds awarded by OJP from being used by the recipient, or any subrecipient at any tier, to pay any person to influence (or attempt to influence) a federal agency, a Member of Congress, or Congress (or an official or employee of any of them) with respect to the awarding of a federal grant or cooperative agreement, subgrant, contract, subcontract, or loan, or with respect to actions such as renewing, extending, or modifying any such award. See 31 U.S.C. 1352. Certain exceptions to this law apply, including an exception that applies to Indian tribes and tribal organizations.
Should any question arise as to whether a particular use of federal funds by a recipient (or subrecipient) would or might fall within the scope of these prohibitions, the recipient is to contact OJP for guidance, and may not proceed without the express prior written approval of OJP.

OJP FORM 4000/2 (REV 4-88)

Case 2:17-cv-07215 Document 1-4 Filed 09/29/17 Page 8 of 21 Page ID #:97

U.S. Department of Justice Office of Justice Programs
Bureau of Justice Assistance

AWARD CONTINUATION SHEET
Grant

PAGE 7 OF 20

PROJECT NUMBER 2017-DJ-BX-0002

AWARD DATE

08/23/2017

SPECIAL CONDITIONS
20. Compliance with general appropriations-law restrictions on the use of federal funds (FY 2017)
The recipient, and any subrecipient ("subgrantee") at any tier, must comply with all applicable restrictions on the use of federal funds set out in federal appropriations statutes. Pertinent restrictions, including from various "general provisions" in the Consolidated Appropriations Act, 2017, are set out at https://ojp.gov/funding/Explore/FY17AppropriationsRestrictions htm, and are incorporated by reference here.
Should a question arise as to whether a particular use of federal funds by a recipient (or a subrecipient) would or might fall within the scope of an appropriations-law restriction, the recipient is to contact OJP for guidance, and may not proceed without the express prior written approval of OJP.
21. Reporting potential fraud, waste, and abuse, and similar misconduct
The recipient, and any subrecipients ("subgrantees") at any tier, must promptly refer to the DOJ Office of the Inspector General (OIG) any credible evidence that a principal, employee, agent, subrecipient, contractor, subcontractor, or other person has, in connection with funds under this award-- (1) submitted a claim that violates the False Claims Act; or (2) committed a criminal or civil violation of laws pertaining to fraud, conflict of interest, bribery, gratuity, or similar misconduct.
Potential fraud, waste, abuse, or misconduct involving or relating to funds under this award should be reported to the OIG by-- (1) mail directed to: Office of the Inspector General, U.S. Department of Justice, Investigations Division, 950 Pennsylvania Avenue, N.W. Room 4706, Washington, DC 20530; (2) e-mail to: oig hotline@usdoj.gov; and/or (3) the DOJ OIG hotline: (contact information in English and Spanish) at (800) 869-4499 (phone) or (202) 616-9881 (fax).
Additional information is available from the DOJ OIG website at https://www.usdoj.gov/oig.

OJP FORM 4000/2 (REV 4-88)

Case 2:17-cv-07215 Document 1-4 Filed 09/29/17 Page 9 of 21 Page ID #:98

U.S. Department of Justice Office of Justice Programs
Bureau of Justice Assistance

AWARD CONTINUATION SHEET
Grant

PAGE 8 OF 20

PROJECT NUMBER 2017-DJ-BX-0002

AWARD DATE

08/23/2017

SPECIAL CONDITIONS
22. Restrictions and certifications regarding non-disclosure agreements and related matters
No recipient or subrecipient ("subgrantee") under this award, or entity that receives a procurement contract or subcontract with any funds under this award, may require any employee or contractor to sign an internal confidentiality agreement or statement that prohibits or otherwise restricts, or purports to prohibit or restrict, the reporting (in accordance with law) of waste, fraud, or abuse to an investigative or law enforcement representative of a federal department or agency authorized to receive such information.
The foregoing is not intended, and shall not be understood by the agency making this award, to contravene requirements applicable to Standard Form 312 (which relates to classified information), Form 4414 (which relates to sensitive compartmented information), or any other form issued by a federal department or agency governing the nondisclosure of classified information.
1. In accepting this award, the recipient--
a. represents that it neither requires nor has required internal confidentiality agreements or statements from employees or contractors that currently prohibit or otherwise currently restrict (or purport to prohibit or restrict) employees or contractors from reporting waste, fraud, or abuse as described above; and
b. certifies that, if it learns or is notified that it is or has been requiring its employees or contractors to execute agreements or statements that prohibit or otherwise restrict (or purport to prohibit or restrict), reporting of waste, fraud, or abuse as described above, it will immediately stop any further obligations of award funds, will provide prompt written notification to the federal agency making this award, and will resume (or permit resumption of) such obligations only if expressly authorized to do so by that agency.
2. If the recipient does or is authorized under this award to make subawards ("subgrants"), procurement contracts, or both--
a. it represents that--
(1) it has determined that no other entity that the recipient's application proposes may or will receive award funds (whether through a subaward ("subgrant"), procurement contract, or subcontract under a procurement contract) either requires or has required internal confidentiality agreements or statements from employees or contractors that currently prohibit or otherwise currently restrict (or purport to prohibit or restrict) employees or contractors from reporting waste, fraud, or abuse as described above; and
(2) it has made appropriate inquiry, or otherwise has an adequate factual basis, to support this representation; and
b. it certifies that, if it learns or is notified that any subrecipient, contractor, or subcontractor entity that receives funds under this award is or has been requiring its employees or contractors to execute agreements or statements that prohibit or otherwise restrict (or purport to prohibit or restrict), reporting of waste, fraud, or abuse as described above, it will immediately stop any further obligations of award funds to or by that entity, will provide prompt written notification to the federal agency making this award, and will resume (or permit resumption of) such obligations only if expressly authorized to do so by that agency.

OJP FORM 4000/2 (REV 4-88)

Case 2:17-cv-07215 Document 1-4 Filed 09/29/17 Page 10 of 21 Page ID #:99

U.S. Department of Justice Office of Justice Programs
Bureau of Justice Assistance

AWARD CONTINUATION SHEET
Grant

PAGE 9 OF 20

PROJECT NUMBER 2017-DJ-BX-0002

AWARD DATE

08/23/2017

SPECIAL CONDITIONS
23. Compliance with 41 U.S.C. 4712 (including prohibitions on reprisal; notice to employees)
The recipient (and any subrecipient at any tier) must comply with, and is subject to, all applicable provisions of 41 U.S.C. 4712, including all applicable provisions that prohibit, under specified circumstances, discrimination against an employee as reprisal for the employee's disclosure of information related to gross mismanagement of a federal grant, a gross waste of federal funds, an abuse of authority relating to a federal grant, a substantial and specific danger to public health or safety, or a violation of law, rule, or regulation related to a federal grant.
The recipient also must inform its employees, in writing (and in the predominant native language of the workforce), of employee rights and remedies under 41 U.S.C. 4712.
Should a question arise as to the applicability of the provisions of 41 U.S.C. 4712 to this award, the recipient is to contact the DOJ awarding agency (OJP or OVW, as appropriate) for guidance.
24. Encouragement of policies to ban text messaging while driving
Pursuant to Executive Order 13513, "Federal Leadership on Reducing Text Messaging While Driving," 74 Fed. Reg. 51225 (October 1, 2009), DOJ encourages recipients and subrecipients ("subgrantees") to adopt and enforce policies banning employees from text messaging while driving any vehicle during the course of performing work funded by this award, and to establish workplace safety policies and conduct education, awareness, and other outreach to decrease crashes caused by distracted drivers.
25. Cooperating with OJP Monitoring
The recipient agrees to cooperate with OJP monitoring of this award pursuant to OJP's guidelines, protocols, and procedures, and to cooperate with OJP (including the grant manager for this award and the Office of Chief Financial Officer (OCFO)) requests related to such monitoring, including requests related to desk reviews and/or site visits. The recipient agrees to provide to OJP all documentation necessary for OJP to complete its monitoring tasks, including documentation related to any subawards made under this award. Further, the recipient agrees to abide by reasonable deadlines set by OJP for providing the requested documents. Failure to cooperate with OJP's monitoring activities may result in actions that affect the recipient's DOJ awards, including, but not limited to: withholdings and/or other restrictions on the recipient's access to award funds; referral to the DOJ OIG for audit review; designation of the recipient as a DOJ High Risk grantee; or termination of an award(s).
26. FFATA reporting: Subawards and executive compensation
The recipient must comply with applicable requirements to report first-tier subawards ("subgrants") of $25,000 or more and, in certain circumstances, to report the names and total compensation of the five most highly compensated executives of the recipient and first-tier subrecipients (first-tier "subgrantees") of award funds. The details of recipient obligations, which derive from the Federal Funding Accountability and Transparency Act of 2006 (FFATA), are posted on the OJP web site at https://ojp.gov/funding/Explore/FFATA htm (Award condition: Reporting Subawards and Executive Compensation), and are incorporated by reference here.
This condition, including its reporting requirement, does not apply to-- (1) an award of less than $25,000, or (2) an award made to an individual who received the award as a natural person (i.e., unrelated to any business or non-profit organization that he or she may own or operate in his or her name).

OJP FORM 4000/2 (REV 4-88)

Case 2:17-cv-07215 Document 1-4 Filed 09/29/17 Page 11 of 21 Page ID #:100

U.S. Department of Justice Office of Justice Programs
Bureau of Justice Assistance

AWARD CONTINUATION SHEET
Grant

PAGE 10 OF 20

PROJECT NUMBER 2017-DJ-BX-0002

AWARD DATE

08/23/2017

27. Use of program income

SPECIAL CONDITIONS

Program income (as defined in the Part 200 Uniform Requirements) must be used in accordance with the provisions of the Part 200 Uniform Requirements. Program income earnings and expenditures both must be reported on the quarterly Federal Financial Report, SF 425.

28. Justice Information Sharing
In order to promote information sharing and enable interoperability among disparate systems across the justice and public safety community, the recipient (and any subrecipient at any tier) must comply with DOJ's Global Justice Information Sharing Initiative (DOJ's Global) guidelines and recommendations for this particular award. The recipient shall conform to the Global Standards Package (GSP) and all constituent elements, where applicable, as described at: https://it.ojp.gov/gsp_grantcondition. The recipient shall document planned approaches to information sharing and describe compliance to the GSP and appropriate privacy policy that protects shared information, or provide detailed justification for why an alternative approach is recommended.

29. Avoidance of duplication of networks
To avoid duplicating existing networks or IT systems in any initiatives funded by BJA for law enforcement information sharing systems which involve interstate connectivity between jurisdictions, such systems shall employ, to the extent possible, existing networks as the communication backbone to achieve interstate connectivity, unless the recipient can demonstrate to the satisfaction of BJA that this requirement would not be cost effective or would impair the functionality of an existing or proposed IT system.

30. Compliance with 28 C.F.R. Part 23
With respect to any information technology system funded or supported by funds under this award, the recipient (and any subrecipient at any tier) must comply with 28 C.F.R. Part 23, Criminal Intelligence Systems Operating Policies, if OJP determines this regulation to be applicable. Should OJP determine 28 C.F.R. Part 23 to be applicable, OJP may, at its discretion, perform audits of the system, as per the regulation. Should any violation of 28 C.F.R. Part 23 occur, the recipient may be fined as per 42 U.S.C. 3789g(c)-(d). The recipient may not satisfy such a fine with federal funds.

31. Protection of human research subjects
The recipient (and any subrecipient at any tier) must comply with the requirements of 28 C.F.R. Part 46 and all OJP policies and procedures regarding the protection of human research subjects, including obtainment of Institutional Review Board approval, if appropriate, and subject informed consent.

32. Confidentiality of data
The recipient (and any subrecipient at any tier) must comply with all confidentiality requirements of 42 U.S.C. 3789g and 28 C.F.R. Part 22 that are applicable to collection, use, and revelation of data or information. The recipient further agrees, as a condition of award approval, to submit a Privacy Certificate that is in accord with requirements of 28 C.F.R. Part 22 and, in particular, 28 C.F.R. 22.23.

OJP FORM 4000/2 (REV 4-88)

Case 2:17-cv-07215 Document 1-4 Filed 09/29/17 Page 12 of 21 Page ID #:101

U.S. Department of Justice Office of Justice Programs
Bureau of Justice Assistance

AWARD CONTINUATION SHEET
Grant

PAGE 11 OF 20

PROJECT NUMBER 2017-DJ-BX-0002

AWARD DATE

08/23/2017

SPECIAL CONDITIONS 33. Verification and updating of recipient contact information
The recipient must verify its Point of Contact(POC), Financial Point of Contact (FPOC), and Authorized Representative contact information in GMS, including telephone number and e-mail address. If any information is incorrect or has changed, a Grant Adjustment Notice (GAN) must be submitted via the Grants Management System (GMS) to document changes.
34. Law enforcement task forces - required training
Within 120 days of award acceptance, each current member of a law enforcement task force funded with award funds who is a task force commander, agency executive, task force officer, or other task force member of equivalent rank, must complete required online (internet-based) task force training. Additionally, all future task force members must complete this training once during the period of performance for this award, or once every four years if multiple OJP awards include this requirement.
The required training is available free of charge online through the BJA-funded Center for Task Force Integrity and Leadership (www.ctfli.org). The training addresses task force effectiveness, as well as other key issues including privacy and civil liberties/rights, task force performance measurement, personnel selection, and task force oversight and accountability. If award funds are used to support a task force, the recipient must compile and maintain a task force personnel roster, along with course completion certificates.
Additional information regarding the training is available through BJA's web site and the Center for Task Force Integrity and Leadership (www.ctfli.org).
35. Required attendance at BJA-sponsored events
The recipient (and its subrecipients at any tier) must participate in BJA-sponsored training events, technical assistance events, or conferences held by BJA or its designees, upon BJA's request.
36. Justification of consultant rate
Approval of this award does not indicate approval of any consultant rate in excess of $650 per day. A detailed justification must be submitted to and approved by the OJP program office prior to obligation or expenditure of such funds.

OJP FORM 4000/2 (REV 4-88)

Case 2:17-cv-07215 Document 1-4 Filed 09/29/17 Page 13 of 21 Page ID #:102

U.S. Department of Justice Office of Justice Programs
Bureau of Justice Assistance

AWARD CONTINUATION SHEET
Grant

PAGE 12 OF 20

PROJECT NUMBER 2017-DJ-BX-0002

AWARD DATE

08/23/2017

SPECIAL CONDITIONS
37. Compliance with National Environmental Policy Act and related statutes
Upon request, the recipient (and any subrecipient at any tier) must assist BJA in complying with the National Environmental Policy Act (NEPA), the National Historic Preservation Act, and other related federal environmental impact analyses requirements in the use of these award funds, either directly by the recipient or by a subrecipient. Accordingly, the recipient agrees to first determine if any of the following activities will be funded by the grant, prior to obligating funds for any of these purposes. If it is determined that any of the following activities will be funded by the award, the recipient agrees to contact BJA.
The recipient understands that this condition applies to new activities as set out below, whether or not they are being specifically funded with these award funds. That is, as long as the activity is being conducted by the recipient, a subrecipient, or any third party, and the activity needs to be undertaken in order to use these award funds, this condition must first be met. The activities covered by this condition are:
a. New construction;
b. Minor renovation or remodeling of a property located in an environmentally or historically sensitive area, including properties located within a 100-year flood plain, a wetland, or habitat for endangered species, or a property listed on or eligible for listing on the National Register of Historic Places;
c. A renovation, lease, or any proposed use of a building or facility that will either (a) result in a change in its basic prior use or (b) significantly change its size;
d. Implementation of a new program involving the use of chemicals other than chemicals that are (a) purchased as an incidental component of a funded activity and (b) traditionally used, for example, in office, household, recreational, or education environments; and
e. Implementation of a program relating to clandestine methamphetamine laboratory operations, including the identification, seizure, or closure of clandestine methamphetamine laboratories.
The recipient understands and agrees that complying with NEPA may require the preparation of an Environmental Assessment and/or an Environmental Impact Statement, as directed by BJA. The recipient further understands and agrees to the requirements for implementation of a Mitigation Plan, as detailed at https://bja.gov/Funding/nepa html, for programs relating to methamphetamine laboratory operations.
Application of This Condition to Recipient's Existing Programs or Activities: For any of the recipient's or its subrecipients' existing programs or activities that will be funded by these award funds, the recipient, upon specific request from BJA, agrees to cooperate with BJA in any preparation by BJA of a national or program environmental assessment of that funded program or activity.
38. Establishment of trust fund
If award funds are being drawn down in advance, the recipient (or a subrecipient, with respect to a subaward) is required to establish a trust fund account. (The trust fund may or may not be an interest-bearing account.) The fund, including any interest, may not be used to pay debts or expenses incurred by other activities beyond the scope of the Edward Byrne Memorial Justice Assistance Grant Program (JAG). The recipient also agrees to obligate the award funds in the trust fund (including any interest earned) during the period of performance for the award and expend within 90 days thereafter. Any unobligated or unexpended funds, including interest earned, must be returned to OJP at the time of closeout.

OJP FORM 4000/2 (REV 4-88)

Case 2:17-cv-07215 Document 1-4 Filed 09/29/17 Page 14 of 21 Page ID #:103

U.S. Department of Justice Office of Justice Programs
Bureau of Justice Assistance

AWARD CONTINUATION SHEET
Grant

PAGE 13 OF 20

PROJECT NUMBER 2017-DJ-BX-0002

AWARD DATE

08/23/2017

SPECIAL CONDITIONS 39. Prohibition on use of award funds for match under BVP program
JAG funds may be used to purchase vests for an agency, but they may not be used as the 50% match for purposes of the DOJ Bulletproof Vest Partnership (BVP) program.
40. Certification of body armor "mandatory wear" policies
The recipient agrees to submit a signed certification that all law enforcement agencies receiving body armor purchased with funds from this award have a written "mandatory wear" policy in effect. The recipient must keep signed certifications on file for any subrecipients planning to utilize funds from this award for ballistic-resistant and stabresistant body armor purchases. This policy must be in place for at least all uniformed officers before any funds from this award may be used by an agency for body armor. There are no requirements regarding the nature of the policy other than it be a mandatory wear policy for all uniformed officers while on duty.
41. Body armor - compliance with NIJ standards
Ballistic-resistant and stab-resistant body armor purchased with JAG award funds may be purchased at any threat level, make or model, from any distributor or manufacturer, as long as the body armor has been tested and found to comply with applicable National Institute of Justice ballistic or stab standards and is listed on the NIJ Compliant Body Armor Model List (https://nij.gov/). In addition, ballistic-resistant and stab-resistant body armor purchased must be American-made. The latest NIJ standard information can be found here: https://nij.gov/topics/technology/bodyarmor/pages/safety-initiative.aspx.
42. Required monitoring of subawards
The recipient must monitor subawards under this JAG award in accordance with all applicable statutes, regulations, award conditions, and the DOJ Grants Financial Guide, and must include the applicable conditions of this award in any subaward. Among other things, the recipient is responsible for oversight of subrecipient spending and monitoring of specific outcomes and benefits attributable to use of award funds by subrecipients. The recipient agrees to submit, upon request, documentation of its policies and procedures for monitoring of subawards under this award.
43. Reporting requirements
The recipient must submit quarterly Federal Financial Reports (SF-425) and semi-annual performance reports through OJP's GMS (https://grants.ojp.usdoj.gov). Consistent with the Department's responsibilities under the Government Performance and Results Act (GPRA) and the GPRA Modernization Act of 2010, the recipient must provide data that measure the results of its work. The recipient must submit quarterly performance metrics reports through BJA's Performance Measurement Tool (PMT) website (www.bjaperformancetools.org). For more detailed information on reporting and other JAG requirements, refer to the JAG reporting requirements webpage. Failure to submit required JAG reports by established deadlines may result in the freezing of grant funds and future High Risk designation.
44. Required data on law enforcement agency training
Any law enforcement agency receiving direct or sub-awarded funding from this JAG award must submit quarterly accountability metrics data related to training that officers have received on the use of force, racial and ethnic bias, deescalation of conflict, and constructive engagement with the public.

OJP FORM 4000/2 (REV 4-88)

Case 2:17-cv-07215 Document 1-4 Filed 09/29/17 Page 15 of 21 Page ID #:104

U.S. Department of Justice Office of Justice Programs
Bureau of Justice Assistance

AWARD CONTINUATION SHEET
Grant

PAGE 14 OF 20

PROJECT NUMBER 2017-DJ-BX-0002

AWARD DATE

08/23/2017

45. Prohibited Expenditures List

SPECIAL CONDITIONS

Award funds may not be used for items that are listed on the Prohibited Expenditure List at the time of purchase or acquisition, including as the list may be amended from time to time. The Prohibited Expenditure List may be accessed here: https://www.bja.gov/funding/JAGControlledPurchaseList.pdf

46. Controlled expenditures - prior written approval required
Award funds may not be used for items that are listed on the Controlled Expenditure List at the time of purchase or acquisition, including as the list may be amended from time to time, without explicit written prior approval from BJA. The Controlled Expenditure List, and instructions on how to request approval for purchase or acquisitions are set out at https://www.bja.gov/funding/JAGControlledPurchaseList.pdf

47. Controlled expenditures - incident reporting
If an agency uses award funds to purchase or acquire any item on the Controlled Expenditure List at the time of purchase or acquisition, including as the list may be amended from time to time, the agency must collect and retain (for at least 3 years) certain information about the use of-- (1) any federally-acquired Controlled Equipment in the agency's inventory, and (2) any other controlled equipment in the same category as the federally-acquired controlled equipment in the agency's inventory, regardless of source; and the agency must make that information available to BJA upon request. Details about what information must be collected and retained are set out at https://ojp.gov/docs/LEEquipment-WG-Final-Report.pdf.

48. Sale of items on Controlled Expenditure List
Notwithstanding the provision of the Part 200 Uniform Requirements set out at 2 C.F.R. 200.313, no equipment listed on the Controlled Expenditure List that is purchased with award funds may be transferred or sold to a third party, except as described below:
a. Agencies may transfer or sell any controlled equipment, except riot helmets and riot shields, to a Law Enforcement Agency (LEA) after obtaining prior written approval from BJA. As a condition of that approval, the acquiring LEA will be required to submit information and certifications to BJA as if it were requesting approval to use award funds for the initial purchase of items on the Controlled Expenditure List.
b. Agencies may not transfer or sell any riot helmets or riot shields purchased under this award.
c. Agencies may not transfer or sell any Controlled Equipment purchased under this award to non-LEAs, with the exception of fixed wing aircraft, rotary wing aircraft, and command and control vehicles. Before any such transfer or sale is finalized, the agency must obtain prior written approval from BJA. All law enforcement-related and other sensitive or potentially dangerous components, and all law enforcement insignias and identifying markings must be removed prior to transfer or sale.
The recipient must notify BJA prior to the disposal of any items on the Controlled Expenditure List purchased with award funds, and must abide by any applicable laws (including regulations) in such disposal.

49. Prohibited or controlled expenditures - Effect of failure to comply
Failure to comply with an award condition related to prohibited or controlled expenditures may result in denial of any further approvals of controlled expenditures under this or other federal awards.

OJP FORM 4000/2 (REV 4-88)

Case 2:17-cv-07215 Document 1-4 Filed 09/29/17 Page 16 of 21 Page ID #:105

U.S. Department of Justice Office of Justice Programs
Bureau of Justice Assistance

AWARD CONTINUATION SHEET
Grant

PAGE 15 OF 20

PROJECT NUMBER 2017-DJ-BX-0002

AWARD DATE

08/23/2017

SPECIAL CONDITIONS
50. Controlled expenditures - Standards
Consistent with recommendation 2.1 of Executive Order 13688, a law enforcement agency that acquires controlled equipment with award funds must adopt robust and specific written policies and protocols governing General Policing Standards and Specific Controlled Equipment Standards. General Policing Standards includes policies on (a) Community Policing; (b) Constitutional Policing; and (c) Community Input and Impact Considerations. Specific Controlled Equipment Standards includes policies specifically related to (a) Appropriate Use of Controlled Equipment; (b) Supervision of Use; (c) Effectiveness Evaluation; (d) Auditing and Accountability; and (e) Transparency and Notice Considerations. Upon OJP's request, the recipient must provide a copy of the General Policing Standards and Specific Controlled Equipment Standards, and any related policies and protocols.
51. Authorization to obligate (federal) award funds to reimburse certain project costs incurred on or after October 1, 2016
The recipient may obligate (federal) award funds only after the recipient makes a valid acceptance of the award. As of the first day of the period of performance for the award (October 1, 2016), however, the recipient may choose to incur project costs using non-federal funds, but any such project costs are incurred at the recipient's risk until, at a minimum-- (1) the recipient makes a valid acceptance of the award, and (2) all applicable withholding conditions are removed by OJP (via a Grant Adjustment Notice). (A withholding condition is a condition in the award document that precludes the recipient from obligating, expending, or drawing down all or a portion of the award funds until the condition is removed.)
Except to the extent (if any) that an award condition expressly precludes reimbursement of project costs incurred "atrisk," if and when the recipient makes a valid acceptance of this award and OJP removes each applicable withholding condition through a Grant Adjustment Notice, the recipient is authorized to obligate (federal) award funds to reimburse itself for project costs incurred "at-risk" earlier during the period of performance (such as project costs incurred prior to award acceptance or prior to removal of an applicable withholding condition), provided that those project costs otherwise are allowable costs under the award.
Nothing in this condition shall be understood to authorize the recipient (or any subrecipient at any tier) to use award funds to "supplant" State or local funds in violation of the recipient's certification (executed by the chief executive of the State or local government) that federal funds will be used to increase the amounts of such funds that would, in the absence of federal funds, be made available for law enforcement activities.
52. "Certification of Compliance with 8 U.S.C. 1373" required for valid award acceptance by a unit of local government
In order validly to accept this award, 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). Unless that executed certification either-- (1) is submitted to OJP together with the fully-executed award document, or (2) is uploaded in OJP's GMS no later than the day the signed award document is submitted to OJP, any submission by a unit of local government that purports to accept the award is invalid.
If an initial award-acceptance submission by the recipient is invalid, once the unit of local government does submit the necessary certification regarding 8 U.S.C. 1373, it may submit a fully-executed award document executed by the unit of local government on or after the date of that certification.
For purposes of this condition, "local government" does not include any Indian tribes.

OJP FORM 4000/2 (REV 4-88)

Case 2:17-cv-07215 Document 1-4 Filed 09/29/17 Page 17 of 21 Page ID #:106

U.S. Department of Justice Office of Justice Programs
Bureau of Justice Assistance

AWARD CONTINUATION SHEET
Grant

PAGE 16 OF 20

PROJECT NUMBER 2017-DJ-BX-0002

AWARD DATE

08/23/2017

SPECIAL CONDITIONS
53. Ongoing compliance with 8 U.S.C. 1373 is required
1. With respect to the "program or activity" funded in whole or part under this award (including any such "program or activity" of any subrecipient at any tier), throughout the period of performance for the award, no State or local government entity, -agency, or -official may prohibit or in any way restrict-- (1) any government entity or -official from sending or receiving information regarding citizenship or immigration status as described in 8 U.S.C. 1373(a); or (2) a government entity or -agency from sending, requesting or receiving, maintaining, or exchanging information regarding immigration status as described in 8 U.S.C. 1373(b). For purposes of this award, any prohibition (or restriction) that violates this condition is an "information-communication restriction."
2. Certifications from subrecipients. The recipient may not make a subaward to a State or local government or a "public" institution of higher education, unless it first obtains a certification of compliance with 8 U.S.C. 1373, properly executed by the chief legal officer of the jurisdiction or institution that would receive the subaward, using the appropriate form available at https://ojp.gov/funding/Explore/SampleCertifications-8USC1373 htm. Similarly, the recipient must require that no subrecipient (at any tier) may make a further subaward to a State or local government or a "public" institution of higher education, unless it first obtains a certification of compliance with 8 U.S.C. 1373, properly executed by the chief legal officer of the jurisdiction or institution that would receive the further subaward, using the appropriate OJP form.
3. The recipient's monitoring responsibilities include monitoring of subrecipient compliance with the requirements of this condition.
4. Allowable costs. Compliance with these requirements is an authorized and priority purpose of this award. To the extent that such costs are not reimbursed under any other federal program, award funds may be obligated (including for authorized reimbursements) for the reasonable, necessary, and allocable costs (if any) that the recipient, or any subrecipient at any tier that is a State or local government or a "public" institution of higher education, incurs to implement this condition.
5. Rules of Construction
A. For purposes of this condition:
(1) "State" and "local government" include any agency or other entity thereof, but not any institution of higher education or any Indian tribe.
(2) A "public" institution of higher education is one that is owned, controlled, or directly funded by a State or local government.
(3) "Program or activity" means what it means under title VI of the Civil Rights Act of 1964 (see 42 U.S.C. 2000d-4a).
(4) "Immigration status" means what it means for purposes of 8 U.S.C. 1373 (Illegal Immigration Reform and Immigrant Responsibility Act of 1996); and terms that are defined in 8 U.S.C. 1101 (Immigration and Nationality Act) mean what they mean under that section 1101, except that the term "State" also shall include American Samoa (cf. 42 U.S.C. 901(a)(2)).
(5) Pursuant to the provisions set out at (or referenced in) 8 U.S.C. 1551 note ("Abolition … and Transfer of Functions"), references to the "Immigration and Naturalization Service" in 8 U.S.C. 1373 are to be read as references to particular components of the Department of Homeland Security (DHS).
B. Nothing in this condition shall be understood to authorize or require any recipient, any subrecipient at any tier, any State or local government, any "public" institution of higher education, or any other entity (or individual) to violate any federal law, including any applicable civil rights or nondiscrimination law.

OJP FORM 4000/2 (REV 4-88)

Case 2:17-cv-07215 Document 1-4 Filed 09/29/17 Page 18 of 21 Page ID #:107

U.S. Department of Justice Office of Justice Programs
Bureau of Justice Assistance

AWARD CONTINUATION SHEET
Grant

PAGE 17 OF 20

PROJECT NUMBER 2017-DJ-BX-0002

AWARD DATE

08/23/2017

SPECIAL CONDITIONS
IMPORTANT NOTE: Any questions about the meaning or scope of this condition should be directed to OJP, before award acceptance.
54. Authority to obligate award funds contingent on compliance with 8 U.S.C. 1373; unallowable costs; obligation to notify
1. If the recipient is a State or local government--
A. The recipient may not obligate award funds if, at the time of the obligation, the "program or activity" of the recipient (or of any subrecipient at any tier that is a either a State or unit of local government or a "public" institution of higher education) that is funded in whole or in part with award funds is subject to any "information-communication restriction."
B. In addition, with respect to any project costs it incurs "at risk," the recipient may not obligate award funds to reimburse itself if -- at the time it incurs such costs -- the "program or activity" of the recipient (or of any subrecipient at any tier that is a either a State or unit of local government or a "public" institution of higher education) that would be reimbursed in whole or in part with award funds was subject to any "information-communication restriction."
C. Any drawdown of award funds by the recipient shall be considered, for all purposes, to be a material representation by the recipient to OJP that, as of the date the recipient requests the drawdown, the recipient and all subrecipients (regardless of tier) are in compliance with 8 U.S.C. 1373.
D. The recipient must promptly notify OJP (in writing) if the recipient, from its requisite monitoring of compliance with award conditions or otherwise, has credible evidence that indicates that the funded "program or activity" of the recipient, or of any subrecipient at any tier that is either a State or a local government or a "public" institution of higher education, may be subject to any "information-communication restriction." In addition, any subaward (at any tier) to a subrecipient that is either a State or a local government or a "public" institution of higher education must require prompt notification to the entity that made the subaward, should the subrecipient such credible evidence regarding an "information-communication restriction."
2. Any subaward (at any tier) to a subrecipient that is either a State or a local government or a "public" institution of higher education must provide that the subrecipient may not obligate award funds if, at the time of the obligation, the "program or activity" of the subrecipient (or of any further such subrecipient at any tier) that is funded in whole or in part with award funds is subject to any "information-communication restriction."
3. Absent an express written determination by DOJ to the contrary, based upon a finding by DOJ of compelling circumstances (e.g., a small amount of award funds obligated by the recipient at the time of a subrecipient's minor and transitory non-compliance, which was unknown to the recipient despite diligent monitoring), any obligations of award funds that, under this condition, may not be made shall be unallowable costs for purposes of this award. In making any such determination, DOJ will give great weight to evidence submitted by the recipient that demonstrates diligent monitoring of subrecipient compliance with the requirements set out in the award condition entitled "Ongoing compliance with 8 U.S.C. 1373 is required."
4. Rules of Construction
A. For purposes of this condition "information-communication restriction" has the meaning set out in the award condition entitled "Ongoing compliance with 8 U.S.C. 1373 is required."
B. Both the "Rules of Construction" and the "Important Note" set out in the award condition entitled "Ongoing compliance with 8 U.S.C. 1373 is required" are incorporated by reference as though set forth here in full.

OJP FORM 4000/2 (REV 4-88)

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U.S. Department of Justice Office of Justice Programs
Bureau of Justice Assistance

AWARD CONTINUATION SHEET
Grant

PAGE 18 OF 20

PROJECT NUMBER 2017-DJ-BX-0002

AWARD DATE

08/23/2017

SPECIAL CONDITIONS 55. Required State-level rules or practices related to aliens; allowable costs
The following provisions apply to the recipient of this award, if the recipient is a State government, and also apply to any State-government subrecipient at any tier (whether or not the recipient is a State government).
1. Requirements
With respect to the "program or activity" that is funded (in whole or in part) by this award, as of the date the recipient accepts this award, and throughout the remainder of the period of performance for the award--
A. A State statute, or a State rule, -regulation, -policy, or -practice, must be in place that is designed to ensure that agents of the United States acting under color of federal law in fact are given to access any State (or State-contracted) correctional facility for the purpose of permitting such agents to meet with individuals who are (or are believed by such agents to be) aliens and to inquire as to such individuals' right to be or remain in the United States.
B. 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 (see para. 4.B. of this condition) -- provide the requested notice to DHS.
2. Monitoring
The recipient's monitoring responsibilities include monitoring of subrecipient compliance with the requirements of this condition.
3. Allowable costs
Compliance with these requirements is an authorized and priority purpose of this award. To the extent that such costs are not reimbursed under any other federal program, award funds may be obligated (including for authorized reimbursements) for the reasonable, necessary, and allocable costs (if any) of-- (1) developing and putting into place statutes, rules, regulations, policies, and practices to satisfy this condition, and (2) permitting access as described in para. 1.A. above, and (3) honoring any request from DHS that is encompassed by para. 1.B. above.
4. Rules of construction
A. For purposes of this condition--
(1) the term "alien" means what it means under section 101 of the Immigration and Nationality Act (see 8 U.S.C. 1101(a)(3)).
(2) the term "correctional facility" means what it means under the Title I of the Omnibus Crime Control and Safe Streets Act of 1968 (see 42 U.S.C. 3791(a)(7)).
B. Nothing in this condition shall be understood to authorize or require any recipient, any subrecipient at any tier, any State or local government, or any other entity or individual to maintain (or detain) any individual in custody beyond the date and time the individual would have been released in the absence of this condition.
Current DHS practice is ordinarily to request advance notice of scheduled release "as early as practicable (at least 48 hours, if possible)." (See DHS Form I-247A (3/17)). In the event that (e.g., in light of the date DHS made such request) the scheduled release date and time for an alien are such as not to permit the advance notice that DHS has requested, it shall not be a violation of this condition to provide only as much advance notice as practicable.

OJP FORM 4000/2 (REV 4-88)

Case 2:17-cv-07215 Document 1-4 Filed 09/29/17 Page 20 of 21 Page ID #:109

U.S. Department of Justice Office of Justice Programs
Bureau of Justice Assistance

AWARD CONTINUATION SHEET
Grant

PAGE 19 OF 20

PROJECT NUMBER 2017-DJ-BX-0002

AWARD DATE

08/23/2017

SPECIAL CONDITIONS NOTE: Current DHS practice is to use one form (DHS Form I-247A (3/17)) for two distinct purposes -- to request advance notice of scheduled release, and to request that an individual be detained for up to 48 hours AFTER the scheduled release. This condition imposes NO requirements as to such DHS requests for detention.
C. Both the "Rules of Construction" and the "Important Note" set out in the award condition entitled "Ongoing compliance with 8 U.S.C. 1373 is required" are incorporated by reference as though set forth here in full.
56. Required local-government-level rules or practices related to aliens; allowable costs
The following provisions apply to the recipient of this award, if the recipient is a unit of local government, and also apply to any local-government subrecipient of this award at any tier (whether or not the recipient itself is a unit of local government).
1. Requirements
With respect to the "program or activity" that is funded (in whole or in part) by this award, as of the date the recipient accepts this award, and throughout the remainder of the period of performance for the award--
A. A local ordinance, -rule, -regulation, -policy, or -practice (or an applicable State statute, -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 a local-government (or local-government-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.
B. A local ordinance, -rule, -regulation, -policy, or -practice (or an applicable State statute, -rule, -regulation, policy, or -practice) must be in place that is designed to ensure that, when a local-government (or local-governmentcontracted) 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 (see "Rules of Construction" incorporated by para. 4.B. of this condition) -- provide the requested notice to DHS.
2. Monitoring
The recipient's monitoring responsibilities include monitoring of subrecipient compliance with the requirements of this condition.
3. Allowable costs
Compliance with these requirements is an authorized and priority purpose of this award. To the extent that such costs are not reimbursed under any other federal program, award funds may be obligated (including for authorized reimbursements) for the reasonable, necessary, and allocable costs (if any) of-- (1) developing and putting into place statutes, ordinances, rules, regulations, policies, and practices to satisfy this condition, (2) permitting access as described in para. 1.A. above, and (3) honoring any request from DHS that is encompassed by para. 1.B. above.
4. Rules of construction
A. The "Rules of Construction" and the "Important Note" set out in the award condition entitled "Ongoing compliance with 8 U.S.C. 1373 is required" are incorporated by reference as though set forth here in full.
B. The "Rules of Construction" set out in the award condition entitled "Required State-level rules or practices related to aliens; allowable costs" are incorporated by reference as though set forth here in full.

OJP FORM 4000/2 (REV 4-88)

Case 2:17-cv-07215 Document 1-4 Filed 09/29/17 Page 21 of 21 Page ID #:110

U.S. Department of Justice Office of Justice Programs
Bureau of Justice Assistance

AWARD CONTINUATION SHEET
Grant

PAGE 20 OF 20

PROJECT NUMBER 2017-DJ-BX-0002

AWARD DATE

08/23/2017

SPECIAL CONDITIONS 57. Use of funds for DNA testing; upload of DNA profiles
If award funds are used for DNA testing of evidentiary materials, any resulting eligible DNA profiles must be uploaded to the Combined DNA Index System ("CODIS," the DNA database operated by the FBI) by a government DNA laboratory with access to CODIS.
No profiles generated under this award may be entered or uploaded into any non-governmental DNA database without prior express written approval from BJA.
Award funds may not be used for the purchase of DNA equipment and supplies unless the resulting DNA profiles may be accepted for entry into CODIS.
58. Encouragement of submission of "success stories"
BJA strongly encourages the recipient to submit annual (or more frequent) JAG success stories. To submit a success story, sign in to a My BJA account at https://www.bja.gov/Login.aspx to access the Success Story Submission form. If the recipient does not yet have a My BJA account, please register at https://www.bja.gov/profile.aspx. Once registered, one of the available areas on the My BJA page will be "My Success Stories." Within this box, there is an option to add a Success Story. Once reviewed and approved by BJA, all success stories will appear on the BJA Success Story web page at https://www.bja.gov/SuccessStoryList.aspx.

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EXHIBIT 5

Case 2:17-cv-07215 Document 1-5 Filed 09/29/17 Page 2 of 66 Page ID #:112

Case 2:17-cv-07215 Document 1-5 Filed 09/29/17 Page 3 of 66 Page ID #:113

Case 2:17-cv-07215 Document 1-5 Filed 09/29/17 Page 4 of 66 Page ID #:114

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Case 2:17-cv-07215 Document 1-5 Filed 09/29/17 Page 6 of 66 Page ID #:116

9/1/2017

Case 2:17-cv-B0JA72FY1157 EdDwoarcduBmyrneenMtem1o-r5ial JFusitliceedAs0s9ist/a2n9ce/1G7rant P(JAaGg)ePr7ogroamf 6- L6ocaPl SaolgiceitatIioDn #:117
Your file has been successfully attached, but the application has not been submitted to OJP. Please continue with your application.
Please download the latest version of Adobe Acrobat Reader®.

https://grants.ojp.usdoj.gov/gmsexternal/budget.do

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9/1/2017

Case 2:17-cv-07215 Document 1-5 FiledAs0su9ra/n2c9es/17 Page 10 of 66 Page ID #:120 OMB APPROVAL NUMBER 1121-0140
EXPIRES 05/31/2019

U.S. DEPARTMENT OF JUSTICE

OFFICE OF JUSTICE PROGRAMS

CERTIFIED STANDARD ASSURANCES

On behalf of the Applicant, and in support of this application for a grant or cooperative agreement, I certify under penalty of perjury to the Office of Justice Programs (OJP), U.S. Department of Justice ("Department"), that all of the following are true and correct:
(1) I have the authority to make the following representations on behalf of myself and the Applicant. I understand that these representations will be relied upon as material in any OJP decision to make an award to the Applicant based on its application.
(2) I certify that the Applicant has the legal authority to apply for the federal assistance sought by the application, and that it has the institutional, managerial, and financial capability (including funds sufficient to pay any required non-federal share of project costs) to plan, manage, and complete the project described in the application properly.
(3) I assure that, throughout the period of performance for the award (if any) made by OJP based on the application--

a. the Applicant will comply with all award requirements and all federal statutes and regulations applicable
to the award;
b. the Applicant will require all subrecipients to comply with all applicable award requirements and all
applicable federal statutes and regulations; and
c. the Applicant will maintain safeguards to address and prevent any organizational conflict of interest, and
also to prohibit employees from using their positions in any manner that poses, or appears to pose, a personal or financial conflict of interest.
(4) The Applicant understands that the federal statutes and regulations applicable to the award (if any) made by OJP based on the application specifically include statutes and regulations pertaining to civil rights and nondiscrimination, and, in addition--

a. the Applicant understands that the applicable statutes pertaining to civil rights will include section 601 of
the Civil Rights Act of 1964 (42 U.S.C. § 2000d); section 504 of the Rehabilitation Act of 1973 (29 U.S.C. § 794); section 901 of the Education Amendments of 1972 (20 U.S.C. § 1681); and section 303 of the Age Discrimination Act of 1975 (42 U.S.C. § 6102);
b. the Applicant understands that the applicable statutes pertaining to nondiscrimination may include
section 815(c) of Title I of the Omnibus Crime Control and Safe Streets Act of 1968 (42 U.S.C. § 3789d(c)); section 1407(e) of the Victims of Crime Act of 1984 (42 U.S.C. § 10604(e)); section 299A(b) of the Juvenile Justice and Delinquency Prevention Act of 2002 (42 U.S.C. § 5672(b)); and that the grant condition set out at section 40002(b)(13) of the Violence Against Women Act (42 U.S.C. § 13925(b)(13)) also may apply;
c. the Applicant understands that it must require any subrecipient to comply with all such applicable
statutes (and associated regulations); and
d. on behalf of the Applicant, I make the specific assurances set out in 28 C.F.R. §§ 42.105 and 42.204.

(5) The Applicant also understands that (in addition to any applicable program-specific regulations and to applicable federal regulations that pertain to civil rights and nondiscrimination) the federal regulations applicable to the award (if any) made by OJP based on the application may include, but are not limited to, 2 C.F.R. Part 2800 (the DOJ "Part 200 Uniform Requirements") and 28 C.F.R. Parts 22 (confidentiality - research and statistical information), 23 (criminal intelligence systems), and 46 (human subjects protection).

https://grants.ojp.usdoj.gov/gmsexternal/displayAssurancesTextAction.st?method=assure&status=Y&id=1

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9/1/2017 Case 2:17-cv-07215 Document 1-5 FileCder0tif9ic/a2tio9n/s17 Page 12 of 66 Page ID #:122
NOTE You mu t click on the "Accept" button at the bottom of the page before clo ing thi window
U S DEPARTMENT OF JUSTICE OFFICE OF JUSTICE PROGRAMS OFFICE OF THE CHIEF FINANCIAL OFFICER
CERTIFICATIONS REGARDING LOBBYING; DEBARMENT , SUSPENSION AND OTHER RESPONSIBILITY MA TTERS; AND DRUG-FREE WORKPLACE REQUIREMENTS
Applicants should refer to the regulations cited below to determine the certification to which they are required to attest. Applicant hould al o review the in truction for certification included in the regulation before completing thi form Acceptance of this form provides for compliance with certification requirements under 28 CFR Part 69, "New Restrictions on Lobbying," 2 CFR Part 2867, "DOJ Implementation of OMB Guidance on Nonprocurement Debarment and Suspension," and 28 CFR Part 83, "Government-wide Debarment and Suspension," and Government-wide Requirements for Drug-Free Workplace (Grant ) " The certification hall be treated a a material repre entation of fact upon which reliance will be placed when the Department of Justice determines to award the covered transaction, grant, or cooperative agreement.
1. LOBBYING As required by Section 1352, Title 31 of the U.S. Code, and implemented at 28 CFR Part 69, for persons entering into a grant or cooperative agreement over $100,000, as defined at 28 CFR Part 69, the applicant certifies that:
(a) No Federal appropriated fund have been paid or will be paid, by or on behalf of the under igned, to any per on for influencing or attempting to influence an officer or employee of any agency, a Member of Congress, an officer or employee of Congress, or an employee of a Member of Congress in connection with the making of any Federal grant, the entering into of any cooperative agreement, and the extension, continuation, renewal, amendment, or modification of any Federal grant or cooperative agreement;
(b) If any funds other than Federal appropriated funds have been paid or will be paid to any person for influencing or attempting to influence an officer or employee of any agency, a Member of Congress, an officer or employee of Congress, or an employee of a Member of Congress in connection with this Federal grant or cooperative agreement, the undersigned shall complete and ubmit Standard Form LLL, "Di clo ure of Lobbying Activitie ," in accordance with it in truction ;
(c) The undersigned shall require that the language of this certification be included in the award documents for all subawards at all tiers (including subgrants, contracts under grants and cooperative agreements, and subcontracts) and that all subrecipients shall certify and disclose accordingly.
2 DEBARMENT, SUSPENSION, AND OTHER RESPONSIBILITY MATTERS (DIRECT RECIPIENT)
Pursuant to Executive Order 12549, Debarment and Suspension, implemented at 2 CFR Part 2867, for prospective participants in primary covered transactions, as defined at 2 CFR Section 2867.20(a), and other requirements:
A. The applicant certifies that it and its principals:
(a) Are not pre ently debarred, u pended, propo ed for debarment, declared ineligible, entenced to a denial of Federal benefits by a State or Federal court, or voluntarily excluded from covered transactions by any Federal department or agency;
(b) Have not within a three-year period preceding this application been convicted of or had a civil judgment rendered against them for commission of fraud or a criminal offense in connection with obtaining, attempting to obtain, or performing a public (Federal, State, or local) tran action or contract under a public tran action; violation of Federal or State antitru t tatute or commission of embezzlement, theft, forgery, bribery, falsification or destruction of records, making false statements, or receiving stolen property;
(c) Have not within a two-year period preceding this application been convicted of a felony criminal violation under any Federal law, unle uch felony criminal conviction ha been di clo ed in writing to the Office of Ju tice Program (OJP) at Ojpcompliancereporting@usdoj.gov, and, after such disclosure, the applicant has received a specific written determination from OJP that neither suspension nor debarment of the applicant is necessary to protect the interests of the Government in this case.
(d) Are not pre ently indicted for or otherwi e criminally or civilly charged by a governmental entity (Federal, State, or local) with commission of any of the offenses enumerated in paragraph (b) of this certification; and

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(e) Have not within a three-year period preceding this application had one or more public transactions (Federal, State, or local) terminated for cause or default.
B. Where the applicant is unable to certify to any of the statements in this certification, he or she shall attach an explanation to this application.
3. FEDERAL TAXES
A. If the applicant is a corporation, the applicant certifies that either (1) the corporation has no unpaid Federal tax liability that has been assessed, for which all judicial and administrative remedies have been exhausted or have lapsed, that is not being paid in a timely manner pursuant to an agreement with the authority responsible for collecting the tax liability, or (2) the corporation has provided written notice of such an unpaid tax liability (or liabilities) to OJP at Ojpcompliancereporting@usdoj.gov, and, after such disclosure, the applicant has received a specific written determination from OJP that neither suspension nor debarment of the applicant is necessary to protect the interests of the Government in this case.
B. Where the applicant is unable to certify to any of the statements in this certification, he or she shall attach an explanation to this application.
4. DRUG-FREE WORKPLACE (GRANTEES OTHER THAN INDIVIDUALS)
As required by the Drug-Free Workplace Act of 1988, and implemented at 28 CFR Part 83, Subpart F, for grantees, as defined at 28 CFR Sections 83.620 and 83.650:
A. The applicant certifies that it will or will continue to provide a drug-free workplace by:
(a) Publishing a statement notifying employees that the unlawful manufacture, distribution, dispensing, possession, or use of a controlled substance is prohibited in the grantee's workplace and specifying the actions that will be taken against employees for violation of such prohibition;
(b) Establishing an on-going drug-free awareness program to inform employees about
(1) The dangers of drug abuse in the workplace;
(2) The grantee's policy of maintaining a drug-free workplace;
(3) Any available drug counseling, rehabilitation, and employee assistance programs; and
(4) The penalties that may be imposed upon employees for drug abuse violations occurring in the workplace;
(c) Making it a requirement that each employee to be engaged in the performance of the grant be given a copy of the statement required by paragraph (a);
(d) Notifying the employee in the statement required by paragraph (a) that, as a condition of employment under the grant, the employee will
(1) Abide by the terms of the statement; and
(2) Notify the employer in writing of his or her conviction for a violation of a criminal drug statute occurring in the workplace no later than five calendar days after such conviction;
(e) Notifying the agency, in writing, within 10 calendar days after receiving notice under subparagraph (d)(2) from an employee or otherwise receiving actual notice of such conviction. Employers of convicted employees must provide notice, including position title, to: Department of Justice, Office of Justice Programs, ATTN: Control Desk, 810 7th Street, N.W., Washington, D.C. 20531. Notice shall include the identification number(s) of each affected grant;
(f) Taking one of the following actions, within 30 calendar days of receiving notice under subparagraph (d)(2), with respect to any employee who is so convicted
(1) Taking appropriate personnel action against such an employee, up to and including termination, consistent with the requirements of the Rehabilitation Act of 1973, as amended; or
(2) Requiring such employee to participate satisfactorily in a drug abuse assistance or rehabilitation program approved for such purposes by a Federal, State, or local health, law enforcement, or other appropriate agency;
(g) Making a good faith effort to continue to maintain a drug-free workplace through implementation of paragraphs (a), (b), (c), (d), (e), and (f).

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9/1/2017

Case 2:17-cv-B0J7A2F1Y517 EDdwoacrduBmyrenenMt e1m-o5rial JFuislteicde A0ss9is/t2an9c/e1G7rantP(JaAgGe) P1ro7graomf -6L6ocalPSoalicgiteatioIDn #:127
BJA FY 17 Edward Byrne Memorial Justice Assistance Grant (JAG) Program - Local Solicitation 2017-H2238-CA-DJ

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You will be contacted by the Program Office when your application is processed or any other action is required by you.

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City of Los Angeles

FY 2017 Justice Assistance Grant

Abstract – Attachment 2
Applicant Name: City of Los Angeles
Project Title: Community Law Enforcement and Recovery (CLEAR) Program
Goals of Project and Strategies Used:
The City of Los Angeles will utilize its Justice Assistance Grant funding to support the Community Law Enforcement and Recovery Program (CLEAR). The CLEAR Program began in 1997 as an innovative City/County partnership to combat gang violence in Los Angeles by vertically-integrating a system of neighborhood policing and gang prosecution.
The primary purpose of CLEAR is to facilitate the recovery of targeted gang-infested communities through collaboration between criminal justice agencies including the Los Angeles Police Department (LAPD), Los Angeles County Probation Department, Los Angeles City Attorney, Los Angeles County District Attorney, California Department of Corrections, and Los Angeles Mayor’s Office. Through Community Impact Teams, CLEAR engages residents of each CLEAR site integrating resident input to improve quality of life issues.
There are currently 9 CLEAR sites, located in the following LAPD divisions: Northeast, Newton, Southeast, Foothill, Southwest, Hollenbeck/Boyle Heights, Hollenbeck/Ramona Gardens, Rampart, and 77th. Each CLEAR site is assigned a Deputy City Attorney, a Deputy District Attorney, and Probation Officer, in addition to 1 Detective, 1 Sergeant, and 8 Police Officers.
Project Identifiers:  Gangs  Violence-Violent Crime  Community Prosecution

Attachment 2

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City of Los Angeles

FY 2017 Justice Assistance Grant

Program Narrative – Attachment 3 Community Law Enforcement and Recovery (CLEAR) Program
The Community Law Enforcement and Recovery (CLEAR) Program began in 1997 as an innovative City of Los Angeles/Los Angeles County partnership to combat gang violence in Los Angeles. The primary purpose of CLEAR is to facilitate the recovery of gang-infested communities. This is accomplished by decreasing gang crime in targeted communities through an effective, cross-agency collaboration with City and County criminal justice agencies. The CLEAR team includes the Los Angeles Police Department (LAPD), Los Angeles County Probation Department, Los Angeles City Attorney, Los Angeles County District Attorney, and the California Department of Corrections. The City of Los Angeles will dedicate 100% of its FY 2017 Justice Assistance Grant allocation to support the CLEAR program.
CLEAR has had a verifiable impact in decreasing gang crime and on maintaining lower levels of gang crime. Until 2014, the City of Los Angeles had experienced 12 years of continuous declines in crime, with crime in CLEAR sites experiencing larger declines than the rest of the City. In 2015, the City of Los Angeles, along with many other cities nationally, began experiencing an uptick in crime. In 2016, Citywide, Total Violent Crime increased 10.2% with Total Part I Crime increasing 5.5%. Citywide Homicide increased by 13.1%. In that same year however, total Homicides in the primary and secondary reporting districts of the CLEAR sites decreased by 22%.1 Despite the overall crime increases experienced City-wide, the continued success of the CLEAR model has resulted in significantly smaller increases in violent and gang-related crimes.
Community members have also been meaningfully engaged in the process of community recovery. These members, along with government agencies (both within and outside the criminal

1 Los Angeles Police Department

Attachment 3

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City of Los Angeles

FY 2017 Justice Assistance Grant

justice system), have created innovative mechanisms to collaborate amongst themselves and with these communities. Furthermore, monthly activity reports are created to assist each site with monitoring and revising plans and strategies. CLEAR Partners
The key to CLEAR’s success has been the immediate availability of police officers, District Attorneys, City Attorneys, and Probation and Parole Officers in the defined primary and secondary target areas. The role of each team member is outlined below:
• The Los Angeles Police Department deploys officers who are designated to respond to gang-related criminal activity within their respective CLEAR target area, and coordinates law enforcement efforts to suppress gang crime. • The California Department of Corrections monitors and closely supervises all parolees during their re-entry into society to avert them from engaging in criminal activity upon their release. • The Los Angeles County Probation Department works with the City Attorney to ensure that gang members receive appropriate conditions of probation that prohibit association with other gang members, through curfews and restrictions on returning to designated areas. • The Los Angeles County District Attorney’s Office and City Attorney’s Office vertically prosecute the most difficult cases generated by CLEAR unit arrests using novel and innovative prosecution strategies that may include granting cross-designation status to city prosecutors, so that cases can be effectively pursued in superior court. They also track all arrests made by the CLEAR unit and prepare reports on the progress of the prosecution efforts, from the point of arrest through the final court disposition of each case, including the length of imprisonment or the terms of probation ordered, and prepare and prosecute

Attachment 3

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City of Los Angeles

FY 2017 Justice Assistance Grant

civil injunctions against gang member activities within the CLEAR sites. CLEAR team members also collaborate with residents within each CLEAR site through the creation of a Community Impact Team (CIT). The CIT’s focus is specifically on quality of life issues such as graffiti, litter and juvenile loitering. The CIT also facilitates a linkage between CLEAR’s suppression efforts and other gang prevention and intervention programs. Community members on the CITs identify effective community organizations in their area and facilitate a relationship between those organizations and law enforcement agencies, which partner to secure support from individuals and businesses within the community.

Selection of CLEAR Sites Areas with high rates of gang-related crime are generally selected as CLEAR sites. Within
each site, there is a primary target area and a secondary target area, identified by LAPD Reporting Districts, which track all LAPD crime data. Primary target areas are comprised of those reporting districts with the most gang activity in the CLEAR site area. Secondary target areas are comprised of those reporting districts with a high level of gang activity, but at lower levels than in the primary target areas. Program resources are deployed first to the primary target areas and then to secondary target areas. This approach ensures that resources are efficiently deployed to areas with the most gang-related crime.

Goals, Objectives and Evaluation The goal of the CLEAR program is to reduce the propagation of gangs, gang
membership, and gang-related criminal activity. An independent evaluation of the effectiveness of the CLEAR program is prepared and submitted to the CLEAR Executive Board on an annual basis. The Executive Board chooses the entity that will conduct the evaluation through a

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City of Los Angeles

FY 2017 Justice Assistance Grant

competitive bidding process after sending out requests for proposals. The evaluation includes a description of the extent to which the project has accomplished the following:
a) A decrease in gang crime in each CLEAR site; b) A decrease in violent gang crime in each CLEAR site; and c) The prosecution of those arrested for gang-related crimes in the CLEAR sites. In addition, the CLEAR program will utilize the following performance measures consistent with Bureau of Justice Assistance Grant Program: a) Percent change in number of individuals arrested in a targeted group by crime type; b) Expected change in arrests; c) Percent change in reported crime rates in a community by crime type; and d) Expected change in crime rates. An evaluation consultant will provide ongoing monthly, quarterly, and annual reports that contain comparative data analysis on crime reduction in the CLEAR sites. Details of the evaluation process include:  Site Activity Statistics: On a monthly basis, collect data reflecting site activities. Provide law enforcement with access to an electronic web-based system to input collected data. Include numbers of arrests, prosecutions, and other related activities.  On a quarterly basis, obtain and analyze gang crime data for all CLEAR sites using a statistical model approved by the CLEAR Executive Board. Compare site gang crime statistics to division-wide gang crime statistics.  Create and distribute four semi-annual reports to be presented to the Board that will include the following content in one or more of the four reports:

Attachment 3

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City of Los Angeles

FY 2017 Justice Assistance Grant

o An implementation study that details how the program was implemented across all sites during the contract period, citing any challenges and successes as well as making recommendations for the future;
o Document all pertinent changes that occurred during the contract period, including but not limited to Reporting Districts, staff turnover, analysis of which sites have the greatest change in gang-related crime, etc.;
o A comprehensive overview that details CLEAR operations and outcomes in a historical, cross-site context; and
o An analysis of CLEAR’s impact on each community including feedback from community members.

Project Implementation

Funding from the JAG 17 award will be utilized for the salaries for nine City Attorneys,

District Attorneys, and Probation Officers at each of the following CLEAR sites:

CLEAR site Northeast Newton Southeast Foothill Southwest
Boyle Heights Ramona Gardens
Rampart 77th

City Attorney X X X X X X X X X

District Attorney
X X X X X X X X X

Probation Officer X X X X X X X X X

Funding will ensure that program activities are not interrupted and that all staff can continue to dedicate their time to their roles within the CLEAR team. Funding will cover CLEAR staffing and grant administration for the entirety of the grant term, through September 30, 2020. As the fiscal agent for this grant, the Los Angeles Mayor’s Office of Public Safety will obtain all

Attachment 3

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City of Los Angeles

FY 2017 Justice Assistance Grant

necessary internal approvals to expend the grant and enter into formal agreements with the partner agencies. The operational teams in the CLEAR sites will continue to implement the specific CLEAR strategy for the identified area and continue coordination of services with the office of Gang Reduction and Youth Development (GRYD). The CLEAR Executive Committee will continue to oversee and monitor CLEAR activities in the target areas. CLEAR activities will be evaluated, and based upon the initial findings strategies in all sites, will be modified and expanded. Project Management
The Mayor’s Office of Public Safety will manage the City of Los Angeles Justice Assistance Grant Award Program. The Office has over a decade of experience in managing grant funds and a history of grant compliance. The Office is responsible for securing and administering the City’s State and Federal public safety and criminal justice grants, all of which require programmatic and fiscal audits.
The City and County of Los Angeles are grouped as disparate jurisdictions for this grant. The City will act as the fiscal agent and submit all required reports and grant adjustments, as needed. The City will ensure that County expenditures are in compliance with grant guidelines. The City and County will plan to expend the funding based on a 50-50 split of the total allocation (after the deduction of 10% of the award by the City of Los Angeles for the administration of the grant), amounting to $879,141.15 each for the City and County respectively, and $195,364.70 for administration.

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City of Los Angeles

FY 2017 Justice Assistance Grant

Budget and Budget Narrative – Attachment 4 Community Law Enforcement and Recovery (CLEAR) Program
Budget Narrative
The City of Los Angeles will dedicate 100% of its FY 2017 Justice Assistance Grant allocation to support the CLEAR program in order to maximize the cost effectiveness of the grant expenditure. The award allocation will assist to sustain approximately 20% - 30% of the salaries for the City Attorneys, District Attorneys, and Probation Officers assigned to the CLEAR areas. In addition, LAPD Officers assigned to CLEAR areas are funded by the City of Los Angeles entirely. The remaining costs of the CLEAR program are supported by the City and County general funds.
An independent evaluation of the effectiveness of the CLEAR program is also conducted and includes the analysis of crime data within CLEAR sites, prosecution rates for CLEAR areas, as well as follow the performance measures consistent with the BJA- JAG Program. Until 2014, the City of Los Angeles had experienced 12 years of continuous declines in crime, with crime in CLEAR sites experiencing larger declines than the rest of the City. In 2015, the City of Los Angeles, along with many other cities nationally, began experiencing an uptick in crime. In 2016, Citywide, Total Violent Crime increased 10.2% with Total Part I Crime increasing 5.5%. Citywide Homicide increased by 13.1%. In that same year however, total Homicides in the primary and secondary reporting districts of the CLEAR sites decreased by 22%.1 Despite the overall crime increases experienced City-wide, the continued success of the CLEAR model has resulted in significantly smaller increases in violent and gang-related crimes. Despite the overall crime increases experienced City-wide, the CLEAR program has not only proven to be effective program, but also cost efficient as well.
The Justice Assistance Grant award will be allocated to the following departments as noted:
A. Personnel Services: List each position by title. Show the annual salary rate and the percentage of time to be devoted to the project. Compensation paid for employees engaged in grant activities must be consistent with that paid for similar work within the applicant organization.
Los Angeles City Attorney The Los Angeles City Attorney’s Office dedicates nine FTE Deputy City Attorneys at the following CLEAR sites (Boyle Heights, Foothill, Newton, Northeast, Ramona Gardens, Southeast, Southwest, Rampart and 77th). These positions will be staffed by full time dedicated and experienced Deputy City Attorneys from the City Attorney Gang Unit. Each prosecutor assigned to the CLEAR Team will vertically prosecute all misdemeanor offenses and local ordinance violations committed by targeted gang members, focus on gang related nuisance and quality of life issues, work cooperatively with the other Team members, and participate in the respective Community Impact Teams. They will also attend and participate in community meetings and events related to CLEAR operations in the respective sites.

1 Los Angeles Police Department
Attachment 4

Case 2:17-cv-07215 Document 1-5 Filed 09/29/17 Page 28 of 66 Page ID #:138

City of Los Angeles

FY 2017 Justice Assistance Grant

2 FTE Los Angeles Deputy City Attorney III X $7,272.20 X 12 months @ 29.807042% = $52,023.07
1 FTE Los Angeles Deputy City Attorney III X $15,473.47 X 12 months @ 14.008667% = $26,011.52
1 FTE Los Angeles Deputy City Attorney III X $15,266.33 X 12 months @ 14.1987429% = $26,011.52
1 FTE Los Angeles Deputy City Attorney III X $15,250.40 X 12 months @ 14.2135744% = $26,011.52
1 FTE Los Angeles Deputy City Attorney III X $14,919.40 X 12 months @ 14.528915% = $26,011.52
1 FTE Los Angeles Deputy City Attorney II X $11,932.47 X 12 months @ 18.165784% = $26,011.52
1 FTE Los Angeles Deputy City Attorney I X $9,244.80 X 12 months @ 23.4469858% = $26,011.52
1 FTE Los Angeles Deputy City Attorney I X $8,960.00 X 12 months @ 24.192265% = $26,011.52

TOTAL CITY ATTORNEY SALARIES: $ 234,103.71
The Mayor’s Office The City of Los Angeles Mayor’s Office of Public Safety administers the Justice Assistance Award. The Office serves on the CLEAR Executive Committee and monitors the Professional Services Agreements with the County and the project evaluator. Additionally, the Office provides fiscal management and oversees reporting to the Bureau of Justice Assistance. The City of LA is retaining 10% of the total award allocation for administration and management of the grant.
1 FTE Mayoral Aide VIII X $2,981.78 X 36 months @ 26.652790% = $28,610.19
4 FTE Mayoral Aide V X $1,925.02 X 36 months @ 41.284120% = $114,440.77
TOTAL MAYOR’S OFFICE SALARIES= $143,050.96
TOTAL PERSONNEL: $ 377,154.64
B. Fringe Benefits: Fringe benefits should be based on actual known costs or an established formula. Fringe benefits are for the personnel listed in budget category and only for the percentage of time devoted to the project. Fringe benefits on overtime hours are limited to FICA, Workman’s Compensation, and Unemployment Compensation.

Attachment 4

Case 2:17-cv-07215 Document 1-5 Filed 09/29/17 Page 29 of 66 Page ID #:139

City of Los Angeles

FY 2017 Justice Assistance Grant

1 FTE Mayoral Aide VIII X $2,981.78 X 36 months @ 9.746925% = $10,462.75
4 FTE Mayoral Aide V X $1,925.02 X 36 months @ 15.097603% = $41,850.99
TOTAL FRINGE BENEFITS = $ 52,313.74
F. Consultants/Contracts: Provide a description of the service to be provided by contract and an estimate of the cost.
Community Law Enforcement and Recovery (CLEAR) Program
Los Angeles County District Attorney The District Attorney’s Office dedicates 9 FTE Deputy District Attorneys for the CLEAR sites (Northeast, Newton, Southwest, Southeast, Boyle Heights, Rampart, Ramona Gardens, 77th, and Foothill). The Deputy District Attorneys are from the District Attorney’s Hardcore Gang Division. Each dedicated Attorney must be a Deputy District Attorney III or higher with a minimum of five years of experience as a Deputy District Attorney. The Deputy District Attorney will review all felony arrests of adult gang members made by the CLEAR Team and files charges where appropriate. The Deputy District Attorney(s) vertically prosecutes (from the filing stage to sentencing), all violent gang related felonies committed by the targeted gang or occurring in the targeted area. Additionally, the Deputy District Attorneys works with CLEAR investigators to insure felony cases are fully prepared for trial. In cases which probation is granted, the Deputy District Attorney advocates the imposition of gang terms and conditions such as prohibiting association with known gang members and possessing firearms or other deadly weapons. The CLEAR Deputy District Attorneys will vigorously litigate felony probation violations that are filed on the targeted gang members. The Deputy District Attorneys will also provide ongoing advice to CLEAR officers and investigators on legal issues and case preparation.
9 FTE Los Angeles County Deputy District Attorney III X $ 12,764.67 X 12 months = $1,378,584.36 @ 28.31865583% = $390,396.56
TOTAL DISTRICT ATTORNEY FUNDING: $ 390,396.56
Los Angeles County Probation Department The Probation Department dedicates 9 FTE Deputy Probation Officers for the CLEAR sites (Northeast, Newton, Southwest, Southeast, Rampart, Boyle Heights, Ramona Gardens, 77th, and Foothill). The staff dedicated to carrying out the Probation Department’s participation in the coordination, development and implementation of CLEAR are the Deputy Probation Officer II (s). These officers coordinate and conduct the following field-related activities: police ride-alongs, sweeps, field visits, Community Based Organization contacts, search and seizures, warrant pickups, etc. They also coordinate Community Impact Teams and facilitate the monthly team meetings with law enforcement, community representatives, community-based agencies, and other city and county agencies for each target neighborhood. Additionally, DPO’s serve as liaisons between the Probation Department and the Los Angeles Police Department, District Attorney, City Attorney, State Parole, courts and community-based agencies in matters related to the program. They are also responsible for monitoring and enforcing the terms and conditions of probation on
Attachment 4

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City of Los Angeles

FY 2017 Justice Assistance Grant

both assigned and non-assigned cases, effecting timely detection and verification of violations, imposing conditions of probation specifically related to gang behavior, ensuring that probation violations will lead to timely sanctioning, maintaining awareness of gang and criminal activity, maintaining efforts to discourage gang group activity and minimize gang cohesiveness, and redirecting individual gang members into non-gang activities, etc.
9 FTE Los Angeles County Deputy Probation Officer II X $7,329.55 X 12 months = $791,591.40 @ 32.041854% = $253,640.56
TOTAL PROBATION FUNDING: $253,640.56
TOTAL CONTRACTUAL SERVICES: $644, 037.12
G. Other Costs – List items (e.g., rent, reproduction, telephone, janitorial or security services, and investigative or confidential funds) by major type and the basis of the computation. For example, provide the square footage and the cost per square foot for rent, or provide a monthly rental cost and how many months to rent.
Mayor’s Office personnel will use smart phones for grant-related purposes.
2 smart phones @ $41.68/ month x 12 months = $1,000.32
TOTAL OTHER COSTS: $1,000.32

Attachment 4

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City of Los Angeles

FY 2017 Justice Assistance Grant

Budget Detail Community Law Enforcement and Recovery (CLEAR) Program
A. Personnel – List each position by title and name of employee, if available. Show the annual salary rate and the percentage of time to be devoted to the project. Compensation paid for employees engaged in grant activities must be consistent with that paid for similar work within the applicant organization.

Name/Position Deputy City Attorney III

Computation
2 FTE X $7,272.20 X 12 months @ 29.807042%

Cost $52,023.07

1 FTE X $15,473.47 X 12 months @ 14.008667%

$26,011.52

1 FTE X $15,266.33 X 12 months @ 14.1987429%

$26,011.52

1 FTE III X $15,250.40 X 12

months @ 14.2135744%

$26,011.52

1 FTE X$14,919.40 X 12 months @ 14.528915%

$26,011.52

Deputy City Attorney II

1 FTE X $11,932.47 X 12 months @ 18.165784%

$26,011.52

Deputy City Attorney I

1 FTE $9,244.80 X 12 months

@ 23.4469858%

$26,011.52

1 FTE X $8,960.00 X 12 months @ 24.192265%

$26,011.52

Mayoral Aide VIII (1 Director)

1 FTE X $2,981.78 X 36 months @ 26.652790%

$28,610.19

Mayoral Aide V (2 Grant Specialists & 2 Accountants)

4 FTE X $1,925.02 X 36 months @ 41.284120%

$114,440.77
TOTAL $ 377,154.67

Attachment 4

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City of Los Angeles

FY 2017 Justice Assistance Grant

B. Fringe Benefits – Fringe benefits should be based on actual known costs or an established formula. Fringe benefits are for the personnel listed in budget category and only for the percentage of time devoted to the project. Fringe benefits on overtime hours are limited to FICA, Workman’s Compensation, and Unemployment Compensation.

Name/Position
Mayoral Aide VIII (1 Director)

Computation
1 FTE X $2,981.78 X 36 months @ 9.746925% X CAP 37

Cost $10,462.75

Mayoral Aide V (2 Grant Specialists & 2 Accountants)

4 FTE V X $1,925.02 X 36

months @ 15.097603%

X CAP 37

$41,850.99

TOTAL $ 52,313.74

C. Travel – Itemize travel expenses of project personnel by purpose (e.g., staff to training, field interviews, advisory group meeting, etc.). Show the basis of computation (e.g., six people to 3-day training at $X airfare, $X lodging, $X subsistence).

Purpose of Travel

Location

Item

Computation

Cost

TOTAL $0.00

D. Equipment – List non-expendable items that are to be purchases. Non-expendable

equipment is tangible property having a useful life of more than two years and an

acquisition cost of $5,000 or more per unit. Expendable items should be included either

in the “Supplies” category or in the “Other” category. Rented or leased equipment costs

should be listed in the “Contractual” category.

Item

Computation

Cost

TOTAL

$ 0.00

E. Supplies – List items by type (office supplies, postage, training materials, copying

paper, and expendable equipment items costing less than $1,000, such as books, hand

held tape recorders) and show the basis for computation. Supplies include any materials

that are expendable or consumed during the course of the project.

Supply Items

Computation

Cost

TOTAL

$0.00

F. Consultants/Contracts
Consultant Fees: For each consultant enter the name, if know, service to be provided, hourly or daily fee (8-hour day), and estimated time on the project. Consultant fees in excess of $450 per day require additional justification and prior approval from BJA.

Attachment 4

Case 2:17-cv-07215 Document 1-5 Filed 09/29/17 Page 33 of 66 Page ID #:143

City of Los Angeles

FY 2017 Justice Assistance Grant

Name of Consultant

Service Provided

Computation

Cost

Contracts: Provide a description of the service to be provided by contract and an

estimate of the cost.

COMMUNITY LAW ENFORCEMENT AND RECOVERY (CLEAR) District Attorney’ Office: The District Attorney’s Office dedicates 9 FTE Deputy District Attorneys for the CLEAR sites (Boyle Heights, Foothill, Newton, Northeast, Ramona Gardens, Southeast, Southwest, Rampart and 77th). The Deputy District Attorneys are from the District Attorney’s Hardcore Gang Division. Each dedicated Attorney must be a Deputy District Attorney III or higher with a minimum of five years of experience as a Deputy District Attorney. The Deputy District Attorney will review all felony arrests of adult gang members made by the CLEAR Team and files charges where appropriate. The Deputy District Attorney(s) vertically prosecutes (from the filing stage to sentencing), all violent gang related felonies committed by the targeted gang or occurring in the targeted area. Additionally the Deputy District Attorneys works with CLEAR investigators to insure felony cases are fully prepared for trial. In cases which probation is granted, the Deputy District Attorney advocates the imposition of gang terms and conditions such as prohibiting association with known gang members and possessing firearms or other deadly weapons. The CLEAR Deputy District Attorneys will vigorously litigate felony probation violations that are filed on the targeted gang members. The Deputy District Attorneys will also provide ongoing advice to CLEAR officers and investigators on legal issues and case preparation.
9 FTE X $ 12,764.67 X 12 months = $1,378,584.36 @ 28.3186558% = $390,396.56
TOTAL DISTRICT ATTORNEY FUNDING: $ 390,396.56

Probation Department: The Probation Department dedicates 9 FTE Deputy Probation Officers for the CLEAR sites (Boyle Heights, Foothill, Newton, Northeast, Ramona Gardens, Southeast, Southwest, Rampart and 77th). The staff dedicated to carrying out the Probation Department’s participation in the coordination, development and implementation of CLEAR are the Deputy Probation Officer II (s). These officers coordinate and conduct the following field-related activities: police ride-alongs, sweeps, field visits, Community Based Organization contacts, search and seizures, warrant pickups, etc. They also coordinate Community Impact Teams and facilitate the monthly team meetings with law enforcement, community representatives, community-based agencies, and other city and county agencies for each target neighborhood. Additionally, DPO’s serve as liaisons between the Probation Department and the Los Angeles Police Department, District Attorney, City Attorney, State Parole, courts and community-based agencies in matters related to the program. They are also responsible for monitoring and enforcing the terms and conditions of probation on both assigned and non-assigned cases, effecting timely detection and verification of violations, imposing conditions of probation specifically related to gang behavior, ensuring that probation violations will lead to timely sanctioning, maintaining awareness of gang and criminal activity, maintaining efforts to discourage gang group activity and minimize gang cohesiveness, and redirecting individual gang members into non-gang activities, etc.

Attachment 4

Case 2:17-cv-07215 Document 1-5 Filed 09/29/17 Page 34 of 66 Page ID #:144

City of Los Angeles

FY 2017 Justice Assistance Grant

9 FTE X $7,329.55 X 12 months = $791,591.40 @ 32.041854% = $253,640.56
TOTAL PROBATION FUNDING: $ 253,640.56
Evaluation Consultant A consultant has been selected by a competitive bid process to provide evaluation services for the City of Los Angeles. The scope of work will include data analysis for all of the primary and secondary target areas. Quarterly reports are provided to the Executive Committee and data is used to address crime trends and deployment for each particular site, as well as collect the data required for grant reporting. Additional support is provided for revisions and updates for the CLEAR operations manual and the ongoing evaluation of the Community Impact Teams.

TOTAL EVALUATION = $0.00 TOTAL CONTRACTUAL SERVICES

$ 644,037.21

G. Other Costs – List items (e.g., rent, reproduction, telephone, janitorial or security

services, and investigative or confidential funds) by major type and the basis of the

computation. For example, provide the square footage and the cost per square foot for

rent, or provide a monthly rental cost and how many months to rent.

Description

Computation

Cost

2 smart phones

$41.68 month x 12 months

$1,000.32

TOTAL

$1,000.32

Attachment 4

Case 2:17-cv-07215 Document 1-5 Filed 09/29/17 Page 35 of 66 Page ID #:145

City of Los Angeles

FY 2016 Justice Assistance Grant

CLEAR PROGRAM Budget Summary –Transfer the totals for each category to the

spaces below. Compute the total project costs.

Budget Category

Amount

A. Personnel

$377,154.67

B. Fringe Benefits C. Travel D. Equipment E. Supplies F. Consultants/Contracts G. Other Costs H. Indirect Costs

$52,313.74 $0 $0 $0
$644,037.12 $1,000.32
$0

TOTAL PROJECT COSTS Total Request

$1,074,505.85
$1,074,505.85 1,074,505.85

Attachment 4

Case 2:17-cv-07215 Document 1-5 Filed 09/29/17 Page 36 of 66 Page ID #:146

City of Los Angeles

FY 2017 Justice Assistance Grant

Review Narrative – Attachment 5
The City of Los Angeles anticipates making its Fiscal Year 2017 Justice Assistance Grant Application available to the Los Angeles City Council for its review and comment by September 30, 2017. There will be opportunity for public comment at the Committee meeting, prior to the full Council meeting. The Agendas listing this item will be made public at least 72 hours in advance of each meeting via the City of LA website. Following Council approval, this document will become public record upon filing with the City Clerk’s office. A Memorandum of Understanding is included as an attachment to this application.

Attachment 5

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MOU – Attachment 6
MEMORANDUM OF UNDERSTANDING BETWEEN THE COUNTY OF LOS ANGELES AND THE CITY OF LOS ANGELES 2017 EDWARD BYRNE MEMORIAL JUSTICE ASSISTANCE GRANT (JAG) PROGRAM
AWARD
This Memorandum of Understanding (“MOU”) is made and entered into this ____ day of _________ 2017, by and between the County of Los Angeles, a subdivision of the State of California, acting by and through its governing body, the Los Angeles County Board of Supervisors, (“County”), and the City of Los Angeles, acting by and through it governing body, the City Council, (“City”).
WITNESSETH
WHEREAS, this MOU is authorized pursuant to Section 23005 of the Government Code, and was specifically authorized by the County (refer to Board File dated / / ); and
WHEREAS, this MOU is authorized by the Los Angeles City Council and the Mayor of Los Angeles (refer to Council File # ________ dated __________); and
WHEREAS, the United States Department of Justice, Office of Justice Programs’ Bureau of Justice Assistance (“BJA”) administers the U.S. Department of Justice, FY 2017 Edward Byrne Memorial Justice Assistance Grant (“FY17 JAG”) Program; and
WHEREAS, BJA requires this MOU be executed between the County and City prior to allocating the FY17 JAG funds; and
WHEREAS, each governing body, in performing governmental functions or in paying for the performance of governmental functions hereunder, shall make that performance or those payments from current revenues legally available to that party; and
WHEREAS, each governing body finds that the performance of this MOU is in the best interests of both parties, that the undertaking will benefit the public, and that the division of costs fairly compensates the performing party for the services or functions under this MOU; and
WHEREAS, the City agrees to serve as the applicant/fiscal agent for the FY17 JAG funds allocated to the City and County and to provide the County with the amount of JAG funds approved by BJA for use as approved by BJA under the FY17 JAG program.
NOW THEREFORE, the COUNTY and CITY agree as follows:
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Section 1. The term of this MOU shall commence on October 1, 2016 and end September 30, 2020. Said term is subject to the provisions herein.
Section 2. Upon the disbursement by BJA to the City of all FY17 JAG funds allocated to the City and County, the City agrees to disburse on a reimbursement basis to County that amount allocated by BJA to the County (the “Disbursement Amount”). The Disbursement Amount is the amount of JAG funds allocated to the County by BJA less 10% of such allocated amount to be retained by the City as compensation to the City for its role as applicant/fiscal agent of such FY17 JAG funds. The County agrees to use the FY17 JAG funds allocated to it for those projects approved by BJA under the FY17 JAG program as set forth in the application for the FY17 JAG funds submitted by the City to BJA. Prior to disbursement of the Disbursement Amount of FY17 JAG funds to the County, the County agrees to enter into a contract with the City setting forth the County’s and the City’s assurances and obligations regarding the use of FY17 JAG funds, which shall include without limitation compliance with all applicable laws and reporting requirements related to the FY17 JAG program and the use of the FY17 JAG funds (the “Contract”). Currently the Disbursement Amount is contemplated to be Eight Hundred Seventy-Nine Thousand One Hundred Forty-One Dollars and Fifteen Cents ($879,141.15).
Section 3. Nothing in the performance of this MOU shall impose any liability for claims against the City or County other than claims for which liability may be imposed by the California Tort Claims Act, or claims by the State or Federal Government for unallowable expenditure of the funds provided by this MOU.
Section 4. Any expenditures made prior to the execution of this MOU shall be eligible for reimbursement by FY17 JAG funds only upon explicit approval by BJA, such approval to be made in BJA’s sole discretion. Funding for all periods of this MOU is subject to the continuing availability of Federal funds for this program. The MOU may be terminated immediately upon written notice to County of a loss or reduction of Federal grant funds.
Section 5. Upon execution of this MOU, the County shall provide performance reports on a quarterly and semi-annual basis demonstrating progress in achieving desired goals and outcomes in a form and manner as required under the FY17 JAG program.
Section 6. Each of the parties to this MOU is a public entity. In contemplation of the provisions of Section 895.2 of the Government Code of the State of California imposing certain tort liability jointly upon public entities, solely by reason of such entities being parties to an Agreement as defined by Section 895.2 of said Code, the parties hereto, as between themselves, pursuant to the authorization contained in Section 895.4 and 895.6 of said Code, will each assume the full liability imposed upon it or upon any of its officers, agents, or employees by law, for injury caused by a negligent or wrongful act or omission occurring in the performance of this
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Agreement, to the same extent that such liability would be imposed in the absence of Section 895.2 of said Code. To achieve the above stated purpose, each party indemnifies and holds harmless the other party solely by virtue of said Section 895.2. The provision of Section 2778 of the California Civil Code is made a part hereto as if fully set forth herein. County certifies that it has adequate self-insured retention of funds to meet any obligation arising from this MOU. City also certifies that it has adequate self-insured retention of funds to meet any obligation arising from this MOU. Each party to this MOU will be responsible for its own actions in providing services under this MOU and shall not be liable for any civil liability that may arise from the furnishing of the services by the other party.
Section 7. The parties to this MOU warrant that they will abide by all the Federal, State and other governmental rules and regulations applicable to the FY17 JAG funds. The County shall be liable to the City, as fiscal agent, for any sums spent under the FY17 JAG grant found to be ineligible by the State or Federal government. The County shall cooperate and assist the City in any audit, or administrative or judicial actions brought by the State or Federal government concerning the activities funded by this MOU.
Section 8. The parties to this MOU do not intend for any third party to obtain a right by virtue of this MOU.
Section 9. By entering into this MOU, the parties do not intend to create any obligations express or implied other than those set out herein. Further, this MOU shall not create any rights in any party not a signatory hereto.
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IN WITNESS WHEREOF, the governing bodies of the parties hereto have authorized the foregoing Memorandum of Agreement between the County of Los Angeles and the City of Los Angeles to be executed on the ____ day of _____________ 2017.

COUNTY OF LOS ANGELES

APPROVED AS TO FORM: OFFICE OF COUNTY COUNSEL

By: ________________________ SACHI A. HAMAI Chief Executive Officer
Date: ________________________

By: _________________________ JOSEPH A. LANGTON Principal Deputy County Counsel
Date: ________________________
Attach County Seal Here

CITY OF LOS ANGELES ERIC GARCETTI, Mayor
By:___________________________ Date: _________________________

Attach City Seal Here

APPROVED AS TO FORM: CITY OF LOS ANGELES MICHAEL N. FEUER, City Attorney

ATTEST: HOLLY WILCOTT, City Clerk

By: ________________________ Barak Vaughn, Deputy City Attorney
Date: ________________________

By: ______________________ Deputy City Clerk
Date: ____________________

Council File/CAO Number _________ Date ________________ ________ Said Agreement is Number _____________________of City Contracts

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City of Los Angeles

FY 2017 Justice Assistance Grant

Disclosure of Pending Applications – Attachment 7

The City of Los Angeles does not have pending applications submitted within the last 12 months for federally funded grants or subgrants that include requests for funding to support the same project being proposed under this solicitation and will cover the identical cost items outlined in the budget narrative and worksheet in the application under this solicitation.

Attachment 7

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Case 2:17-cv-07215 Document 1-5 Filed 09/29/17 Page 44 of 66 Page ID #:154

Case 2:17-cv-07215 Document 1-5 Filed 09/29/17 Page 45 of 66 Page ID #:155

City of Los Angeles

FY 2017 Justice Assistance Grant

Disclosure of High Risk Status – Attachment 9

The City of Los Angeles is not designated as a High Risk by another federal grant making agency.

Attachment 9

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City of Los Angeles

FY 2017 Justice Assistance Grant

Disclosure of Lobbying Activities – Attachment 10

The City of Los Angeles does not expend funds for Lobbying Activities.

Attachment 10

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Case 2:17-cv-07215 Document 1-5 Filed 09/29/17 Page 48 of 66 Page ID #:158

Case 2:17-cv-07215 Document 1-5 Filed 09/29/17 Page 49 of 66 Page ID #:159

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Case 2:17-cv-07215 Document 1-5 Filed 09/29/17 Page 51 of 66 Page ID #:161

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Case 2:17-cv-07215 Document 1-5 Filed 09/29/17 Page 53 of 66 Page ID #:163

County of Los Angeles

FY 2017 Justice Assistance Grant

County of Los Angeles Disparate Jurisdiction Budget – Attachment 12
2017 Justice Assistance Grant Budget Narratives & Summary County of Los Angeles
Crime Reduction and Public Safety Improvement Initiative

The County of Los Angeles has participated in the Bureau of Justice Assistance (BJA) funded specialized crime reduction and public safety improvement programs since 1996, through the former Local Law Enforcement Block Grant (LLEBG) program. The County plans to continue on a similar path under the Edward Byrne Memorial Justice Assistance Grant (JAG) by maintaining programs similar to those previously funded under the LLEBG program.
Goals and Objectives:
The overall goal of the County’s Crime Reduction and Public Safety Improvement Initiative is to reduce crime and improve public safety. Personal and community safety is recognized as being one of our most basic needs. The County has been working in a cooperative effort with various justice and law enforcement agencies to target street gangs with the use of search warrants, arrests, and the seizure of firearms and weapons. It is most important for perpetrators of violent gang crimes to be identified, arrested, prosecuted, and convicted in accordance with the law. This is done to protect the public from crime that can ruin the local economy, and have a negative impact on the quality of life for all persons.
Public safety is enhanced when offenders are held accountable and redirected from delinquent and criminal behavior. Strategies to positively impact the behavior of probationers and at-risk youth through early intervention, prevention and suppression programs are a key element of Los Angeles County’s Crime Reduction and Public Safety Improvement Initiative. The County’s Probation Department administers a variety of services to heighten and promote public safety. County Probation Officers work in a collaborative manner with other law enforcement agencies to prevent and reduce criminal behavior by holding probationers accountable through case management, supervision, and monitoring. The County program will continue to develop and implement specific strategies that target and focus on prosecution programs to suppress organized criminal gang behavior and control the impact of gangs on our community; increased law enforcement presence in the community particularly during large, high profile community events; Sheriff Department services to heighten and promote public safety on and off school campuses; and ongoing collaboration between the County Sheriff’s Department and other law enforcement agencies to prevent and reduce criminal behavior through case management, supervision, and monitoring. Additionally, the County will be enhancing its program by adding four new Contractors upon approval from the Department of Justice to assist with crime prevention and education of at-risk youth.

Attachment 12

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County of Los Angeles

FY 2017 Justice Assistance Grant

Law Enforcement Programs:
Los Angeles County Sheriff’s Department (LASD) – Patrol Services Overtime As a means of deterring crime and deploying first responders expeditiously, funding will be used to finance supplemental patrol services to enhance law enforcement services in the unincorporated areas of the County. Additionally, funding will provide for increased law enforcement presence countywide particularly during the large, high profile community events, rallies, protests and activities with large participant turnout and during holidays when there is an increased need for law enforcement services.

Attachment 12

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County of Los Angeles

FY 2017 Justice Assistance Grant

Prosecution and Court Programs:
District Attorney’s Office - Strategies Against Gang Environments (SAGE) The Sage program abates street gang violence and narcotic related activities by utilizing civil injunctions and other procedures deemed appropriate by local law enforcement authorities. The program provides collaborative efforts among the Los Angeles County District Attorney, Los Angeles County Sheriff and the City of Los Angeles Police Department to suppress gang activities in targeted areas.
The District Attorney’s component of SAGE provides focused vertical prosecutions, tracks criminal proceedings of notorious gang members, and contributes expertise and local resources to facilitate the successful arrest and prosecution of gang members who commit serious and/or violent felonies. Assigned Deputy District Attorney staff assists in the coordination of probation and parole sweeps by providing guidance and training to local officers on legal search and seizure precedents applicable to the target group. The program also works to suppress and abate street gang activity, graffiti, vandalism, narcotic sales and use, and criminal nuisance properties and related problems that lead to the commission of violent and serious gang-related crimes.
Alternative Sentencing Program/Paralegal Services - Public Defender Funding will be used by the Public Defender to finance paralegal services for the Alternative Sentencing Program. The program enhances the adjudication process of cases involving violent offenders by utilizing paralegals to assist attorneys in securing information for preparation of the penalty phase in capital cases and alternative sentencing reports in cases where there is significant mitigating information to support alternative sentencing. This program presents the Court with a range of sentencing options which offer punishment, control, and accountability, frequently at less cost than jail or prison. This program can reduce unnecessary jail and prison use with a potential for a positive impact upon the management of overcrowded jail facilities.
Alternative Sentencing Program/Psychiatric Social Worker Services – Alternate Public Defender Funding will be used by the Alternate Public Defender (APD) to finance the services of Psychiatric Social Workers (PSW) for the Alternative Sentencing Program. The Alternate Public Defenders Alternative Sentencing program enhances the adjudication process of cases involving mentally ill clients by providing in-house Psychiatric Social Workers that are knowledgeable in mental health and substance abuse that can make a quick assessment as to what program, if any, would be suitable for the client. PSW work for the Department of Mental Health and are assigned to APD cases. By having a PSW in-house, in addition to putting the client at ease, the County will also avoid issues relating to “mandatory reporting”. As an employee of the APD, the PSW must honor the Attorney-Client Privilege, thus maintaining confidentiality.

Attachment 12

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County of Los Angeles

FY 2017 Justice Assistance Grant

Prevention and Education Programs:
School-Based Supervision Program - Probation The School-Based Supervision Program increases school attendance, competencies and performance, and provides access to skills and resources needed by parents to effectively parent their children. This multi-phase program involves the placement of Deputy Probation Officers to high schools and middle schools to assess the strengths and needs of at-risk youth in the program. Based on those assessments, case planning exercises will be conducted, and the youth will be entered into one or many intervention treatment programs. Funding will be used to finance the salary of the Deputy Probation Officer position.
AB109 Re-Entry Housing Project
Funding will be used to contract with outside agencies to work in collaboration with the Los Angeles Sheriff’s Department to provide reunification services to formerly incarcerated women and their families in order to provide a successful transition back into their community, decrease recidivism and reduce crime by potential repeat offenders. The program provides services to aid participants with locating and moving into housing and support services in the form of education, job-training, and skill building opportunities. Funds will be used for the contractor personnel, operating and administrative expenses.

Attachment 12

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County of Los Angeles

FY 2017 Justice Assistance Grant

LAW ENFORCEMENT PROGRAMS BUDGET REQUEST

Program: Los Angeles Sheriff’s Department – Patrol Services Overtime

Allocation Category

Allocated Amount

Personnel

Hiring:

Other: Overtime – Deputy/Sergeant

$32,498.15

Personnel Subtotal

$32,498.15

Travel

$0

Equipment/Technology

$0

Supplies

$0

Contractual

$0

Other

$0

Grand Total

$32,498.15

Attachment 12

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County of Los Angeles

FY 2017 Justice Assistance Grant

PROSECUTION AND COURT PROGRAMS BUDGET REQUEST

Program: District Attorney’s Office - Strategies Against Gang Environments (SAGE)

Allocation Category

Allocated Amount

Personnel

Hiring:

Other: Attorneys, Sworn Officers

$97,019

Personnel Subtotal

$97,019

Travel

$0

Equipment/Technology

$0

Supplies

$0

Contractual

$0

Other

$0

Grand Total

$97,019

Attachment 12

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Case 2:17-cv-07215 Document 1-5 Filed 09/29/17 Page 59 of 66 Page ID #:169

County of Los Angeles

FY 2017 Justice Assistance Grant

PROSECUTION AND COURT PROGRAM BUDGET REQUEST

Program: Alternative Sentencing Program/Paralegal Services - Public Defender

Allocation Category Personnel
Hiring Other: Attorneys. Paralegals Personnel Subtotal Travel Equipment/Technology Supplies Contractual Other Grand Total

Allocated Amount
$0 $248,747 $248,747 $0 $0 $0 $0 $0 $248,747

Attachment 12

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County of Los Angeles

FY 2017 Justice Assistance Grant

PROSECUTION AND COURT PROGRAM BUDGET REQUEST

Program: Alternative Sentencing Program/Social Worker – Alternate Public Defender

Allocation Category Personnel
Hiring Other: Psychiatric Social Worker Personnel Subtotal Travel Equipment/Technology Supplies Contractual Other Grand Total

Allocated Amount
$0 $112,801 $112,801 $0 $0 $0 $0 $0 $112,801

Attachment 12

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County of Los Angeles

FY 2017 Justice Assistance Grant

PREVENTION AND EDUCATION PROGRAM BUDGET REQUEST

Program: School-Based Supervision Program - Probation Department

Allocation Category Personnel
Hiring Other: Deputy Probation Officer Personnel Subtotal Travel Equipment/Technology Supplies Contractual Other Grand Total

Allocated Amount
$0 $97,019 $97,019 $0 $0 $0 $0 $0 $97,019

Attachment 12

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County of Los Angeles

FY 2017 Justice Assistance Grant

PREVENTION AND EDUCATION PROGRAM BUDGET REQUEST

Program: AB109 Re-Entry Housing Project

Allocation Category Personnel Services Fringe Benefits:
Personnel Subtotal: Travel Equipment/Technology Supplies Contractual Other Grand Total

Allocated Amount $0 $0 $0 $0 $0 $0 $291,057 $0 $291,097

Attachment 12

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County of Los Angeles

FY 2017 Justice Assistance Grant

County of Los Angeles Disparate Jurisdiction Budget 2017 Justice Assistance Grant Budget Narrative

Crime Reduction and Public Safety Improvement Initiative Programs Budget

Summary –Transfer the totals for each category to the spaces below. Compute the total

project costs.

Budget Category

Amount

A. Personnel B. Fringe Benefits

$555,586 $32,498.15

C. Travel

$0

D. Equipment

$0

E. Supplies

$0

F. Consultants/Contracts

$291,057

G. Other Costs

$0

H. Indirect Costs

$0

TOTAL PROJECT COSTS Total Request

$879,141.15 $879,141.15

Attachment 12

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City of Los Angeles

FY 2017 Justice Assistance Grant

Disclosure of Pending Applications – Attachment 13

This is to affirm that to our knowledge the County of Los Angeles does not have pending applications submitted within the last 12 months for federally funded grants or subgrants (including cooperative agreements) that include requests for funding to support the same project being proposed under this solicitation and will cover identical cost items outlined in the County’s 2017 JAG budget narrative and worksheet in the application under this solicitation.

Federal or State Funding Agency
NONE

Solicitation / Project Name

Name/ Phone/ E-mail for Point of Contact at Funding Agency

Attachment 13

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County of Los Angeles

FY 2017 Justice Assistance Grant

Disclosure of High Risk Status – Attachment 14

The County of Los Angeles is not designated as a High Risk by another federal grant making agency.

Attachment 14

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County of Los Angeles

FY 2017 Justice Assistance Grant

Disclosure of Lobbying Activities – Attachment 15

The County of Los Angeles does not expend funds for Lobbying Activities.

Attachment 15

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EXHIBIT 6

2017 CALIFORNIA LOCAL JAG ALLOCATIONS
Listed below are all jurisdictions in the state that are eligible for FY 2017 JAG funding, as determined by the JAG formula. For additional details regarding the JAG formula and award calculation process, with examples, please refer to the updated JAG Technical report here: https://www.bja.gov/Jag/pdfs/JAG-Technical-Report.pdf and current JAG Frequently Asked Questions here: https://www.bja.gov/Funding/JAGFAQ.pdf
Finding your jurisdiction: (1) Disparate jurisdictions are listed in shaded groups below, in alphabetic order by county. (2) Eligible individual allocations are listed alphabetically below the shaded, disparate groupings. (3) Counties that have an asterisk (*) under the “Eligible Individual Allocation" column did not submit the level of violent crime data to qualify for a direct award from BJA, but are in the disparate grouping indicated by the shaded area. The JAG legislation requires these counties to remain a partner with the local jurisdictions receiving funds and must be a signatory on the required Memorandum of Understanding (MOU). A sample MOU is provided online at: https://www.bja.gov/Funding/JAGMOU.pdf. Disparate jurisdictions do not need to abide by the listed individual allocations, which are provided for information only. Jurisdictions in a funding disparity are responsible for determining individual amounts within the Eligible Joint Allocation and for documenting individual allocations in the MOU.

Case 2:17-cv-07215 Document 1-6 Filed 09/29/17 Page 2 of 8 Page ID #:178

State CA CA CA CA CA CA CA CA CA CA
CA CA
CA CA CA
CA CA
CA CA
CA CA
CA CA
CA CA
CA CA

Jurisdiction Name ALAMEDA COUNTY
ALAMEDA CITY BERKELEY CITY EMERYVILLE CITY FREMONT CITY HAYWARD CITY LIVERMORE CITY OAKLAND CITY SAN LEANDRO CITY
UNION CITY
BUTTE COUNTY CHICO CITY
CONTRA COSTA COUNTY ANTIOCH CITY RICHMOND CITY
FRESNO COUNTY FRESNO CITY
KINGS COUNTY HANFORD CITY
LOS ANGELES COUNTY LOS ANGELES CITY
MARIN COUNTY SAN RAFAEL CITY
MONTEREY COUNTY SALINAS CITY
NAPA COUNTY NAPA CITY

Government Type County
Municipal Municipal Municipal Municipal Municipal Municipal Municipal Municipal Municipal
County Municipal
County Municipal Municipal
County Municipal
County Municipal
County Municipal
County Municipal
County Municipal
County Municipal

Direct Allocation $44,625 $11,527 $38,926 $10,275 $22,849 $44,728 $18,888 $535,324 $30,031 $17,635
* $24,434
$32,383 $65,583 $73,123
$65,072 $199,485
$11,169 $23,488
$398,382 $1,555,265
* $16,230
$18,019 $79,129
* $20,498

Joint Allocation
$774,808 $24,434 $171,089 $264,557 $34,657 $1,953,647 $16,230 $97,148 $20,498

2017 CALIFORNIA LOCAL JAG ALLOCATIONS
Listed below are all jurisdictions in the state that are eligible for FY 2017 JAG funding, as determined by the JAG formula. For additional details regarding the JAG formula and award calculation process, with examples, please refer to the updated JAG Technical report here: https://www.bja.gov/Jag/pdfs/JAG-Technical-Report.pdf and current JAG Frequently Asked Questions here: https://www.bja.gov/Funding/JAGFAQ.pdf
Finding your jurisdiction: (1) Disparate jurisdictions are listed in shaded groups below, in alphabetic order by county. (2) Eligible individual allocations are listed alphabetically below the shaded, disparate groupings. (3) Counties that have an asterisk (*) under the “Eligible Individual Allocation" column did not submit the level of violent crime data to qualify for a direct award from BJA, but are in the disparate grouping indicated by the shaded area. The JAG legislation requires these counties to remain a partner with the local jurisdictions receiving funds and must be a signatory on the required Memorandum of Understanding (MOU). A sample MOU is provided online at: https://www.bja.gov/Funding/JAGMOU.pdf. Disparate jurisdictions do not need to abide by the listed individual allocations, which are provided for information only. Jurisdictions in a funding disparity are responsible for determining individual amounts within the Eligible Joint Allocation and for documenting individual allocations in the MOU.

Case 2:17-cv-07215 Document 1-6 Filed 09/29/17 Page 3 of 8 Page ID #:179

State CA CA CA CA CA CA CA CA CA CA
CA CA CA CA CA CA CA CA CA CA CA CA CA
CA CA
CA CA CA CA CA CA CA CA CA CA CA CA CA CA

Jurisdiction Name ORANGE COUNTY
ANAHEIM CITY BUENA PARK CITY COSTA MESA CITY FULLERTON CITY GARDEN GROVE CITY HUNTINGTON BEACH CITY
ORANGE CITY SANTA ANA CITY WESTMINSTER CITY
RIVERSIDE COUNTY BANNING CITY COACHELLA CITY CORONA CITY HEMET CITY INDIO CITY
PALM SPRINGS CITY PERRIS CITY
RIVERSIDE CITY JURUPA VALLEY CITY MORENO VALLEY CITY
CATHEDRAL CITY DESERT HOT SPRINGS CITY
SAN BENITO COUNTY HOLLISTER CITY
SAN BERNARDINO COUNTY ADELANTO CITY
APPLE VALLEY TOWN BARSTOW CITY CHINO CITY COLTON CITY FONTANA CITY HESPERIA CITY HIGHLAND CITY MONTCLAIR CITY ONTARIO CITY
RANCHO CUCAMONGA CITY REDLANDS CITY RIALTO CITY

Government Type County
Municipal Municipal Municipal Municipal Municipal Municipal Municipal Municipal Municipal
County Municipal Municipal Municipal Municipal Municipal Municipal Municipal Municipal Municipal Municipal Municipal Municipal
County Municipal
County Municipal Municipal Municipal Municipal Municipal Municipal Municipal Municipal Municipal Municipal Municipal Municipal Municipal

Direct Allocation $18,044 $89,506 $17,252 $24,434 $28,114 $34,887 $29,980 $11,783 $102,413 $19,936
$59,449 $11,604 $11,169 $13,929 $37,878 $38,823 $21,188 $15,310 $106,196 $20,805 $47,667 $10,070 $17,303
* $11,961
$73,404 $15,310 $16,127 $18,632 $16,996 $12,345 $57,226 $24,766 $16,588 $15,795 $36,574 $22,440 $14,671 $30,287

Joint Allocation $376,349
$411,391 $11,961

2017 CALIFORNIA LOCAL JAG ALLOCATIONS
Listed below are all jurisdictions in the state that are eligible for FY 2017 JAG funding, as determined by the JAG formula. For additional details regarding the JAG formula and award calculation process, with examples, please refer to the updated JAG Technical report here: https://www.bja.gov/Jag/pdfs/JAG-Technical-Report.pdf and current JAG Frequently Asked Questions here: https://www.bja.gov/Funding/JAGFAQ.pdf
Finding your jurisdiction: (1) Disparate jurisdictions are listed in shaded groups below, in alphabetic order by county. (2) Eligible individual allocations are listed alphabetically below the shaded, disparate groupings. (3) Counties that have an asterisk (*) under the “Eligible Individual Allocation" column did not submit the level of violent crime data to qualify for a direct award from BJA, but are in the disparate grouping indicated by the shaded area. The JAG legislation requires these counties to remain a partner with the local jurisdictions receiving funds and must be a signatory on the required Memorandum of Understanding (MOU). A sample MOU is provided online at: https://www.bja.gov/Funding/JAGMOU.pdf. Disparate jurisdictions do not need to abide by the listed individual allocations, which are provided for information only. Jurisdictions in a funding disparity are responsible for determining individual amounts within the Eligible Joint Allocation and for documenting individual allocations in the MOU.

Case 2:17-cv-07215 Document 1-6 Filed 09/29/17 Page 4 of 8 Page ID #:180

State CA CA CA

Jurisdiction Name SAN BERNARDINO CITY
UPLAND CITY VICTORVILLE CITY

Government Type Municipal Municipal Municipal

Direct Allocation $173,134 $14,441 $52,906

Joint Allocation $611,642

2017 CALIFORNIA LOCAL JAG ALLOCATIONS
Listed below are all jurisdictions in the state that are eligible for FY 2017 JAG funding, as determined by the JAG formula. For additional details regarding the JAG formula and award calculation process, with examples, please refer to the updated JAG Technical report here: https://www.bja.gov/Jag/pdfs/JAG-Technical-Report.pdf and current JAG Frequently Asked Questions here: https://www.bja.gov/Funding/JAGFAQ.pdf
Finding your jurisdiction: (1) Disparate jurisdictions are listed in shaded groups below, in alphabetic order by county. (2) Eligible individual allocations are listed alphabetically below the shaded, disparate groupings. (3) Counties that have an asterisk (*) under the “Eligible Individual Allocation" column did not submit the level of violent crime data to qualify for a direct award from BJA, but are in the disparate grouping indicated by the shaded area. The JAG legislation requires these counties to remain a partner with the local jurisdictions receiving funds and must be a signatory on the required Memorandum of Understanding (MOU). A sample MOU is provided online at: https://www.bja.gov/Funding/JAGMOU.pdf. Disparate jurisdictions do not need to abide by the listed individual allocations, which are provided for information only. Jurisdictions in a funding disparity are responsible for determining individual amounts within the Eligible Joint Allocation and for documenting individual allocations in the MOU.

Case 2:17-cv-07215 Document 1-6 Filed 09/29/17 Page 5 of 8 Page ID #:181

State
CA CA
CA CA
CA CA
CA CA
CA CA
CA CA CA CA
CA CA
CA CA
CA CA CA
CA CA CA

Jurisdiction Name
SAN DIEGO COUNTY SAN DIEGO CITY
SAN JOAQUIN COUNTY STOCKTON CITY
SANTA BARBARA COUNTY SANTA MARIA CITY
SANTA CLARA COUNTY SAN JOSE CITY
SANTA CRUZ COUNTY SANTA CRUZ CITY
SOLANO COUNTY FAIRFIELD CITY VACAVILLE CITY VALLEJO CITY
STANISLAUS COUNTY MODESTO CITY
SUTTER COUNTY YUBA CITY
VENTURA COUNTY OXNARD CITY
SAN BUENAVENTURA CITY
YOLO COUNTY WEST SACRAMENTO CITY
WOODLAND CITY

Government Type
County Municipal
County Municipal
County Municipal
County Municipal
County Municipal
County Municipal Municipal Municipal
County Municipal
County Municipal
County Municipal Municipal
County Municipal Municipal

Direct Allocation
$101,749 $411,468
$55,794 $299,853
$21,367 $35,578
$17,278 $251,931
$22,415 $36,549
* $38,415 $18,351 $78,823
$28,728 $140,751
* $15,667
$10,505 $62,746 $23,309
* $19,885 $21,341

Joint Allocation $513,217 $355,647 $56,945 $269,209 $58,964
$135,589 $169,479 $15,667 $96,560 $41,226

2017 CALIFORNIA LOCAL JAG ALLOCATIONS
Listed below are all jurisdictions in the state that are eligible for FY 2017 JAG funding, as determined by the JAG formula. For additional details regarding the JAG formula and award calculation process, with examples, please refer to the updated JAG Technical report here: https://www.bja.gov/Jag/pdfs/JAG-Technical-Report.pdf and current JAG Frequently Asked Questions here: https://www.bja.gov/Funding/JAGFAQ.pdf
Finding your jurisdiction: (1) Disparate jurisdictions are listed in shaded groups below, in alphabetic order by county. (2) Eligible individual allocations are listed alphabetically below the shaded, disparate groupings. (3) Counties that have an asterisk (*) under the “Eligible Individual Allocation" column did not submit the level of violent crime data to qualify for a direct award from BJA, but are in the disparate grouping indicated by the shaded area. The JAG legislation requires these counties to remain a partner with the local jurisdictions receiving funds and must be a signatory on the required Memorandum of Understanding (MOU). A sample MOU is provided online at: https://www.bja.gov/Funding/JAGMOU.pdf. Disparate jurisdictions do not need to abide by the listed individual allocations, which are provided for information only. Jurisdictions in a funding disparity are responsible for determining individual amounts within the Eligible Joint Allocation and for documenting individual allocations in the MOU.

Case 2:17-cv-07215 Document 1-6 Filed 09/29/17 Page 6 of 8 Page ID #:182

State CA CA CA CA CA CA CA CA CA CA CA CA CA CA CA CA CA CA CA CA CA CA CA CA CA CA CA CA CA CA CA CA CA CA CA CA CA CA CA CA CA CA

Jurisdiction Name ALHAMBRA CITY
ARVIN CITY ATWATER CITY
AZUSA CITY BAKERSFIELD CITY BALDWIN PARK CITY
BELL CITY BELLFLOWER CITY
BURBANK CITY CARLSBAD CITY CARSON CITY
CERES CITY CHULA VISTA CITY CITRUS HEIGHTS CITY
CLOVIS CITY COMPTON CITY CONCORD CITY
CULVER CITY DALY CITY
DELANO CITY DINUBA CITY DOWNEY CITY EAST PALO ALTO CITY EL CAJON CITY EL CENTRO CITY EL DORADO COUNTY EL MONTE CITY ELK GROVE CITY ESCONDIDO CITY EUREKA CITY GARDENA CITY GILROY CITY GLENDALE CITY HAWTHORNE CITY HUMBOLDT COUNTY HUNTINGTON PARK CITY IMPERIAL COUNTY INGLEWOOD CITY KERN COUNTY LA MESA CITY LA PUENTE CITY LAKE COUNTY

Government Type Municipal Municipal Municipal Municipal Municipal Municipal Municipal Municipal Municipal Municipal Municipal Municipal Municipal Municipal Municipal Municipal Municipal Municipal Municipal Municipal Municipal Municipal Municipal Municipal Municipal County Municipal Municipal Municipal Municipal Municipal Municipal Municipal Municipal County Municipal County Municipal County Municipal Municipal County

Direct Allocation $12,754 $12,243 $14,338 $14,926 $136,611 $18,862 $16,511 $24,153 $12,268 $15,258 $29,955 $10,223 $48,868 $27,961 $16,255 $85,851 $34,836 $12,421 $16,639 $18,990 $14,722 $24,076 $16,664 $27,424 $12,140 $17,942 $27,424 $42,862 $41,839 $12,856 $21,009 $14,543 $14,364 $47,692 $15,846 $29,495 $16,153 $58,708 $162,910 $14,952 $10,172 $15,565

Joint Allocation

2017 CALIFORNIA LOCAL JAG ALLOCATIONS
Listed below are all jurisdictions in the state that are eligible for FY 2017 JAG funding, as determined by the JAG formula. For additional details regarding the JAG formula and award calculation process, with examples, please refer to the updated JAG Technical report here: https://www.bja.gov/Jag/pdfs/JAG-Technical-Report.pdf and current JAG Frequently Asked Questions here: https://www.bja.gov/Funding/JAGFAQ.pdf
Finding your jurisdiction: (1) Disparate jurisdictions are listed in shaded groups below, in alphabetic order by county. (2) Eligible individual allocations are listed alphabetically below the shaded, disparate groupings. (3) Counties that have an asterisk (*) under the “Eligible Individual Allocation" column did not submit the level of violent crime data to qualify for a direct award from BJA, but are in the disparate grouping indicated by the shaded area. The JAG legislation requires these counties to remain a partner with the local jurisdictions receiving funds and must be a signatory on the required Memorandum of Understanding (MOU). A sample MOU is provided online at: https://www.bja.gov/Funding/JAGMOU.pdf. Disparate jurisdictions do not need to abide by the listed individual allocations, which are provided for information only. Jurisdictions in a funding disparity are responsible for determining individual amounts within the Eligible Joint Allocation and for documenting individual allocations in the MOU.

Case 2:17-cv-07215 Document 1-6 Filed 09/29/17 Page 7 of 8 Page ID #:183

State CA CA CA CA CA CA CA CA CA CA CA CA CA CA CA CA CA CA CA CA CA CA CA CA CA CA CA CA CA CA CA CA CA CA CA CA CA CA CA CA CA CA

Jurisdiction Name LAKEWOOD CITY LANCASTER CITY LAWNDALE CITY LEMON GROVE CITY
LODI CITY LOMPOC CITY LONG BEACH CITY LYNWOOD CITY MADERA CITY MADERA COUNTY MANTECA CITY MENDOCINO COUNTY MERCED CITY MERCED COUNTY MONTEBELLO CITY MOUNTAIN VIEW CITY NATIONAL CITY NEVADA COUNTY NORWALK CITY OCEANSIDE CITY PALMDALE CITY PARAMOUNT CITY PASADENA CITY PETALUMA CITY PICO RIVERA CITY PITTSBURG CITY PLACER COUNTY POMONA CITY PORTERVILLE CITY RANCHO CORDOVA RED BLUFF CITY REDDING CITY REDONDO BEACH CITY REDWOOD CITY REEDLEY CITY RIDGECREST CITY ROHNERT PARK CITY ROSEMEAD CITY ROSEVILLE CITY SACRAMENTO CITY SACRAMENTO COUNTY SAN FRANCISCO CITY AND COUNTY

Government Type Municipal Municipal Municipal Municipal Municipal Municipal Municipal Municipal Municipal County Municipal County Municipal County Municipal Municipal Municipal County Municipal Municipal Municipal Municipal Municipal Municipal Municipal Municipal County Municipal Municipal Municipal Municipal Municipal Municipal Municipal Municipal Municipal Municipal Municipal Municipal Municipal County Municipal

Direct Allocation $16,588 $69,724 $13,163 $11,016 $24,383 $12,626 $189,542 $31,974 $36,625 $27,706 $15,361 $22,977 $48,280 $36,855 $12,140 $12,191 $23,207 $14,262 $28,702 $50,810 $62,082 $19,016 $32,102 $15,923 $17,405 $14,952 $21,725 $60,778 $13,751 $25,584 $10,045 $46,235 $12,856 $14,671 $13,623 $10,428 $13,981 $11,527 $17,712 $248,327 $233,299 $524,845

Joint Allocation

2017 CALIFORNIA LOCAL JAG ALLOCATIONS
Listed below are all jurisdictions in the state that are eligible for FY 2017 JAG funding, as determined by the JAG formula. For additional details regarding the JAG formula and award calculation process, with examples, please refer to the updated JAG Technical report here: https://www.bja.gov/Jag/pdfs/JAG-Technical-Report.pdf and current JAG Frequently Asked Questions here: https://www.bja.gov/Funding/JAGFAQ.pdf
Finding your jurisdiction: (1) Disparate jurisdictions are listed in shaded groups below, in alphabetic order by county. (2) Eligible individual allocations are listed alphabetically below the shaded, disparate groupings. (3) Counties that have an asterisk (*) under the “Eligible Individual Allocation" column did not submit the level of violent crime data to qualify for a direct award from BJA, but are in the disparate grouping indicated by the shaded area. The JAG legislation requires these counties to remain a partner with the local jurisdictions receiving funds and must be a signatory on the required Memorandum of Understanding (MOU). A sample MOU is provided online at: https://www.bja.gov/Funding/JAGMOU.pdf. Disparate jurisdictions do not need to abide by the listed individual allocations, which are provided for information only. Jurisdictions in a funding disparity are responsible for determining individual amounts within the Eligible Joint Allocation and for documenting individual allocations in the MOU.

Case 2:17-cv-07215 Document 1-6 Filed 09/29/17 Page 8 of 8 Page ID #:184

State CA CA CA CA CA CA CA CA CA CA CA CA CA CA CA CA CA CA CA CA CA CA CA CA CA CA CA CA CA CA CA CA CA CA

Jurisdiction Name SAN LUIS OBISPO CITY SAN LUIS OBISPO COUNTY
SAN MARCOS CITY SAN MATEO CITY SAN MATEO COUNTY SAN PABLO CITY SANTA BARBARA CITY SANTA CLARA CITY SANTA CLARITA CITY SANTA MONICA CITY SANTA ROSA CITY
SELMA CITY SHASTA COUNTY SIMI VALLEY CITY SONOMA COUNTY SOUTH GATE CITY SOUTH SAN FRANCISCO CITY SUNNYVALE CITY TEHAMA COUNTY THOUSAND OAKS CITY TORRANCE CITY
TRACY CITY TULARE CITY TULARE COUNTY TUOLUMNE COUNTY TURLOCK CITY UKIAH CITY VISALIA CITY VISTA CITY WATSONVILLE CITY WEST COVINA CITY WEST HOLLYWOOD CITY WHITTIER CITY YUBA COUNTY
Local total

Government Type Municipal County Municipal Municipal County Municipal Municipal Municipal Municipal Municipal Municipal Municipal County Municipal County Municipal Municipal Municipal County Municipal Municipal Municipal Municipal County County Municipal Municipal Municipal Municipal Municipal Municipal Municipal Municipal County

Direct Allocation $15,182 $22,670 $14,850 $18,786 $23,105 $17,150 $26,249 $12,524 $23,872 $28,293 $45,571 $13,623 $45,162 $11,399 $47,104 $39,948 $11,016 $11,987 $12,294 $10,300 $14,211 $11,118 $30,415 $37,571 $10,326 $27,143 $10,300 $40,689 $28,830 $20,575 $18,377 $19,501 $17,891 $15,770
$10,612,996

Joint Allocation

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EXHIBIT 7

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please indicate 0 hours)?
Use of force (hours) 26
De-escalation of conflict (hours) 187
Racial and ethnic bias that includes elements of implicit/unconscious bias (hours) 4
Gender bias in response to domestic violence and sexual assault (hours) 1
Bias towards lesbian, gay, bisexual, and transgender (LGBT) individuals (hours) 4
Community engagement (e.g., community policing and problem solving) (hours) 18
SECTION 6B: LAW ENFORCEMENT & COMMUNITY POLICING STRATEGY
Community Policing Strategy
COPS Office grants must be used to reorient the mission and activities of law enforcement agencies through initiating community policing or enhancing their involvement in community policing with the officers hired under this grant program or an equal number of veteran officers who have been redeployed to implement this plan after hiring the entry-level COPS Office-funded officers. If awarded funds, your responses to sections II(a) and II(b) that follow will constitute your agency’s community policing strategy under this grant. Your organization may be audited or monitored to ensure that it is initiating or enhancing community policing in accordance with this strategy. The COPS Office may also use this information to understand the needs of the field, and potentially provide for training, technical assistance, problem solving and community policing implementation tools. Please note that the COPS Office recognizes that your COPS Office-funded officer(s) (or an equal number of veteran officers who are redeployed after hiring the entry-level COPS Officefunded officers) will engage in a variety of community policing activities and strategies, including participating in some or all aspects of your identified community policing strategy. Your community-policing strategy may be influenced and impacted by others within and outside of your organization; this is considered beneficial to your community policing efforts.
At any time during your grant, you should be prepared to demonstrate (1) the community policing activities engaged in prior to the grant award that are detailed in section I of this application and (2) how the grant funds and grant-funded officers (or an equal number of redeployed veteran officers) were specifically used to enhance (increase) or initiate community policing activities according to your community policing strategy contained in sections II (a) and II (b) of this application.
Finally, we also understand that your community policing needs may change during the life of your grant. Minor changes to this strategy may be made without prior approv al of the COPS Office; howev er, grantees will be required to report on progress and changes to the community policing strategy (if any) through required progress reports. If your agency’s community policing strategy changes significantly, you must submit those changes to the COPS Office for approv al. Changes are significant if they dev iate from the specific crime problems(s) originally identified and approv ed in the community policing strategy submitted with the application. In some cases, changes to the approv ed community policing approaches may also be deemed significant and may require approv al of a modified community policing strategy by the COPS Office, depending on the scope and nature of those changes as identified in the quarterly progress reports.
The following is the COPS Office definition of community policing that emphasizes the primary components of community partnerships, organizational transformation, and problem solving. Please refer to the COPS Office web site (http://www.cops.usdoj.gov) for further information regarding this definition.
Community policing is a philosophy that promotes organizational strategies that support the systematic use of partnerships and problem solving techniques to proactively address the immediate conditions that give rise to public safety issues, such as crime, social disorder, and fear of crime.
The COPS Office has completed the development of a comprehensive community policing self-assessment tool for use by law enforcement agencies. Based on this work, we have developed the following list of primary sub-elements of community policing. Please refer to the COPS Office web site (http://www.cops.usdoj.gov) for further information regarding these sub-elements.
Community Partnerships:
Collaborative partnerships between the law enforcement agency and the individuals and organizations they serve to both develop solutions to problems and increase trust in police.
Other Government Agencies
Community Members/Groups
Non-Profits/Service Providers
Private Businesses
Media
Organizational Transformation:
The alignment of organizational management, structure, personnel and information systems to support community partnerships and proactive problemsolving efforts.
Agency Management
Climate and culture
Leadership
Labor relations
Decision-making
Strategic planning
Policies
Organizational evaluations
Transparency
Organizational Structure

Geographic assignment of officers

Despecialization

https://portal.cops.usdoj.gov/SMS/PrintView.aspx?printType=confirmation

7/27

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810 7th Street, NW, Washington, D.C. 20531.
B. It will comply with the federal regulations pertaining to the development and implementation of an Equal Employment Opportunity Plan (28 C.F.R. Part 42 subpart E). The requirements are as follows: If your organization has fewer than fifty employees or receives an award of less than $25,000 or is a nonprofit organization, a medical institution, an educational institution, or an Indian tr be, then it is exempt from the EEOP requirement. To claim the exemption, your organization must complete and submit Section A of the Certification Form, which is available online at http://www.ojp.usdoj.gov/about/ocr/pdfs/cert.pdf. If your organization is a government agency or private business and receives an award of $25,000 or more, but less than $500,000, and has fifty or more employees (counting both full- and part-time employees but excluding political appointees), then it has to prepare a Utilization Report (formerly called an EEOP Short Form), but it does not have to submit the report to the OCR for review. Instead, your organization has to maintain the Utilization Report on file and make it available for review on request. In addition, your organization has to complete Section B of the Certification Form and return it to the OCR. The Certification Form is available at http://www.ojp.usdoj.gov/about/ocr/pdfs/cert.pdf. If your organization is a government agency or private business and has received an award for $500,000 or more and has fifty or more employees (counting both full- and part-time employees but excluding political appointees), then it has to prepare a Utilization Report (formerly called an EEOP Short Form) and submit it to the OCR for review within sixty days from the date of this letter. For assistance in developing a Utilization Report, please consult the OCR’s website at http://www.ojp.usdoj.gov/about/ocr/eeop.htm. In addition, your organization has to complete Section C of the Certification Form and return it to the OCR. The Certification Form is available at http://www.ojp.usdoj.gov/about/ocr/pdfs/cert.pdf. To comply with the EEOP requirements, you may request technical assistance from an EEOP specialist at the OCR by telephone at (202) 307-0690, by TTY at (202) 307-2027, or by e-mail at EEOsubmisson@usdoj.gov.
9. Pursuant to U.S. Department of Justice guidelines (June 18, 2002 Federal Register (Volume 67, Number 117, pages 41455-41472)), under Title VI of the Civil Rights Act of 1964, it will ensure meaningful access to its programs and activities by persons with limited English proficiency.
10. It will ensure that any facilities under its ownership, lease or supervision which shall be utilized in the accomplishment of the project are not listed on the Environmental Protection Agency’ (EPA) list of Violating Facilities and that it will notify us if advised by the EPA that a facility to be used in this grant is under consideration for such listing by the EPA.
11. If the applicant’s state has established a review and comment procedure under Executive Order 12372 and has selected this program for review, it has made this application available for review by the state Single Point of Contact.
12. It will submit all surveys, interview protocols, and other information collections to the COPS Office for submission to the Office of Management and Budget for clearance under the Paperwork Reduction Act of 1995 if required.
13. It will comply with the Human Subjects Research Risk Protections requirements of 28 C.F.R. Part 46 if any part of the funded project contains nonexempt research or statistical activities which involve human subjects and also with 28 C.F.R. Part 22, requiring the safeguarding of individually identifiable information collected from research participants.
14. Pursuant to Executive Order 13043, it will enforce on-the-job seat belt policies and programs for employees when operating agency-owned - or - rented or personally-owned vehicles.
15. As required by 42 U.S.C. § 3796dd-3(a), it will not use COPS Office funds to supplant (replace) state, local, or Bureau of Indian Affairs funds that otherwise would be made available for the purposes of this grant, as applicable.
16. If the awarded grant contains a retention requirement, it will retain the increased officer staffing level or the increased officer redeployment level, as applicable, with state or local funds for a minimum of 12 months following expiration of the grant period.
17. It will not use any federal funding directly or indirectly to influence in any manner a Member of Congress, a jurisdiction, or an official of any government, to favor, adopt, or oppose, by vote or otherwise, any legislation, law ratification, policy or appropriation whether before or after the introduction of any bill, measure, or resolution proposing such legislation, law, ratification, policy or appropriation as set forth in the Anti- Lobby Act, 18 U.S.C. § 1913.
18. In the event that a portion of grant reimbursements are seized to pay off delinquent federal debts through the Treasury Offset Program or other debt collection process, it agrees to increase the nonfederal share (or, if the awarded grant does not contain a cost sharing requirement, contr bute a nonfederal share) equal to the amount seized in order to fully implement the grant project.
False statements or claims made in connection with COPS Office grants or cooperative agreements may result in fines, imprisonment, debarment from participating in federal grants or contracts, and/or any other remedy available by law.
I certify that the assurances provided are true and accurate to the best of my knowledge.
Elections or other selections of new officials will not relieve the awardee of its obligations under this award.
Signature of Law Enforcement Executiv e/Agency Executiv e (For your electronic signature, please type in your name) Charlie Beck
Charlie Beck
Date:
06/23/2016
Signature of Gov ernment Executiv e/Financial Official (For your electronic signature, please type in your name) Eric Garcetti
Eric Garcetti
Date:
06/23/2016
SECTION 15B: CERTIFICATIONS
Regarding Lobbying; Debarment, Suspension and Other Responsibility Matters; Federal Taxes and Assessments; Drug-Free Workplace Requirements; and Coordination with Affected Agencies.
Although the U.S. Department of Justice has made every effort to simplify the application process, other provisions of federal law require us to seek your agency’s certification regarding certain matters. Applicants should carefully review the statutes and regulations cited below and the instructions for certification to understand the requirements and whether they apply to a particular applicant. Signing this form complies with the certification and notice requirements under 28 C.F.R. Part 69 “New Restrictions on Lobbying”; 2 C.F.R. Part 2867 “Nonprocurement Debarment and Suspension”; 2 C.F.R. Part 200 “Uniform Administrative Requirements, Cost Principles, and Audit Requirements for Federal Awards”; the general provisions in the applicable Appropriations Act; 28 C.F.R. Part 83 “Government-Wide Requirements for Drug-Free Workplace (Grants)”; and the Public Safety Partnership and Community Policing Act of 1994. The certifications shall be treated as a material representation of fact upon which reliance will be placed when the U.S. Department of Justice determines to award the covered grant.
1. Lobbying
As required by 31 U.S.C. § 1352, implemented at 28 C.F.R. Part 69, for persons entering into a grant or cooperative agreement over $100,000, and 2 C.F.R.

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§ 200.450 as adopted by the U.S. Department of Justice in 2 C.F.R. § 2800.101, the applicant certifies to the following:
A. No federal appropriated funds have been paid or will be paid, by or on behalf of the undersigned, to any person for influencing or attempting to influence an officer or employee of any agency, a member of Congress, an officer or employee of Congress, or an employee of a member of Congress in connection with the making of any federal grant; the entering into of any cooperative agreement; or the extension, continuation, renewal, amendment or modification of any federal grant or cooperative agreement.
B. If any funds other than federal appropriated funds have been paid or will be paid to any person for influencing or attempting to influence an officer or employee of any agency, a member of Congress, an officer or employee of Congress, or an employee of a member of Congress in connection with this federal grant or cooperative agreement, the undersigned shall complete and submit Standard Form - LLL, “Disclosure of Lobbying Activities,” in accordance with its instructions.
C. If applicant is a nonprofit organization or an institution of higher education, it will comply with the additional lobbying restrictions set forth in 2 C.F.R. § 200.450(c) as adopted by the U.S. Department of Justice in 2 C.F.R. § 2800.101.
D. The undersigned shall require that the language of this certification be included in the award documents for all subawards at all tiers (including subgrants, contracts under grants and cooperative agreements, and subcontracts) and that all sub-recipients shall certify and disclose accordingly.
2. Debarment, Suspension and Other Responsibility Matters (Direct Recipient)
Pursuant to Executive Order 12549, Debarment and Suspension, as implemented at 2 C.F.R. Part 2867, for prospective participants in primary covered transactions, as defined at 2 C.F.R. § 2867.20(a), and other requirements, the applicant certifies that it and its principals
A. Are not presently debarred, suspended, proposed for debarment, declared ineligible, sentenced to a denial of federal benefits by a state or federal court, or voluntarily excluded from covered transactions by any federal department or agency;
B. Have not within a three-year period preceding this application been convicted of a felony criminal violation under any federal law, or been convicted or had a civil judgment rendered against them for commission of fraud or a criminal offense in connection with obtaining, attempting to obtain, or performing a public (federal, state or local) or private agreement or transaction; violation of federal or state antitrust statutes or commission of embezzlement, theft, forgery, bribery, falsification or destruction of records, making false statements, tax evasion or receiving stolen property, making false claims, or obstruction of justice, or commission of any offense indicating a lack of business integrity or business honesty that seriously and directly affects your present responsibility;
C. Are not presently indicted for or otherwise criminally or civilly charged by a governmental entity (federal, state or local) with commission of any of the offenses enumerated in paragraph (B) of this certification; and
D. Have not within a three-year period preceding this application had one or more public transactions (federal, state or local) terminated for cause or default.
3. Mandatory Disclosure
Pursuant to the Uniform Administrative Requirements, Cost Principles, and Audit Requirements for Federal Awards, 2 C.F.R. § 200.113 as adopted by the U.S. Department of Justice in 2 C.F.R. § 2800.101, the applicant certifies that it:
A. Has not violated any federal criminal law involving fraud, bribery, or gratuity that may potentially affect the federal grant or cooperative agreement;
B. Shall timely disclose in writing to the federal awarding agency or pass-through entity, as applicable, any violation of federal criminal law involving fraud, bribery, or gratuity that may potentially affect the federal grant or cooperative agreement; and
C. Shall require that the language of this certification be included in the award documents for all subawards (including subgrants and cooperative agreements) and shall require all subrecipients certify and disclose accordingly.
4. Federal Taxes and Assessments
A. If applicable, an applicant who receives an award in excess of $5,000,000 certifies that, to the best of its knowledge and belief, the applicant has filed all federal tax returns required during the three years preceding the certification, has not been convicted of a criminal offense under the Internal Revenue Code of 1986, and has not, more than 90 days prior to certification, been notified of any unpaid federal tax assessment for which the liability remains unsatisfied, unless the assessment is the subject of an installment agreement or offer in compromise that has been approved by the Internal Revenue Service and is not in default, or the assessment is the subject of a non-frivolous administrative or judicial proceeding.
B. The applicant certifies that it does not have any unpaid federal tax liability that has been assessed, for which all judicial and administrative remedies have been exhausted or have lapsed, and that is not being paid in a timely manner pursuant to an agreement with the authority responsible for collecting the tax liability.
5. Drug-Free Workplace
As required by the Drug-Free Workplace Act of 1988 (41 U.S.C. 8103), and implemented at 28 C.F.R. Part 83, for recipients (other than individuals), as defined at 28 C.F.R. § 83.660 –
A. The applicant certifies that it will, or will continue to, provide a drug- free workplace by doing the following:
(i) Publishing a statement notifying employees that the unlawful manufacture, distr bution, dispensing, possession or use of a controlled substance is prohibited in the grantee’s workplace and specifying the actions that will be taken against employees for violation of such proh bition;
(ii) Establishing an on-going drug-free awareness program to inform employees about -
(a) the dangers of drug abuse in the workplace;
(b) the grantee’s policy of maintaining a drug-free workplace;
(c) any available drug counseling, rehabilitation and employee assistance programs; and
(d) the penalties that may be imposed upon employees for drug-abuse violations occurring in the workplace;
(iii) Making it a requirement that each employee to be engaged in the performance of the grant be given a copy of the statement required by paragraph (i);
(iv) Notifying the employee in the statement required by paragraph (i) that, as a condition of employment under the grant, the employee will -
(a) abide by the terms of the statement; and
(b) notify the employer in writing of his or her conviction for a violation of a criminal drug statute occurring in the workplace no later than five calendar days after such conviction;
(v) Notifying the agency in writing within 10 calendar days after receiving notice under subparagraph (iv)(b) from an employee or otherwise receiving actual notice of such conviction. Employers of convicted employees must provide notice, including position title, to: COPS Office, 145 N Street, NE, Washington, D.C. 20530. Notice shall include the identification number(s) of each affected grant;

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being motivated by a desire for private gain for themselves or others, particularly those with whom they have family, business or other ties. In addition, it will disclose (in writing) to the COPS Office any potential conflict of interest arising during the course of performance of the award and also will require such written disclosures by any subrecipients.
5. As required by 42 U.S.C. § 3796dd-6, it will give the U.S. Department of Justice or the Comptroller General access to and the right to examine records and documents related to the award.
6. It will comply with all requirements imposed by the U.S. Department of Justice as a condition or administrative requirement of the award, including but not limited to: the requirements of 2 C.F.R. Part 200 (Uniform Administrative Requirements, Cost Principles, and Audit Requirements for Federal Awards) as adopted by the U.S. Department of Justice in 2 C.F.R. § 2800.101 ; 48 C.F.R. Part 31 (FAR Part 31) (Contract Cost Principles and Procedures); the applicable provisions of the Omnibus Crime Control and Safe Streets Act of 1968, as amended; 28 C.F.R. Part 38 (Partnerships With Faith-Based and Other Neighborhood Organizations); the applicable COPS Office application guide; the applicable COPS Office award owner’s manual; and with all other applicable program requirements, laws, orders, or regulations.
7. As required by 42 U.S.C. § 3796dd-1(c) (11), it will, to the extent practicable and consistent with applicable law, seek, recruit and hire qualified members of racial and ethnic minority groups and qualified women in order to further effective law enforcement by increasing their ranks within the sworn positions in the agency.
8. It will not (and will require any subrecipient, contractors, successors, transferees, and assignees not to), on the grounds of race, color, religion, national origin, sex, or disability unlawfully exclude any person from participation in, deny the benefits of, or employment to any person, or subject any person to discrimination in connection with any programs or activities funded in whole or in part with federal funds. It will also not discriminate in the delivery of benefits or services based on age. These civil rights requirements are found in the non-discrimination provisions of Title VI of the Civil Rights Act of 1964, as amended (42 U.S.C. § 2000d); the Omn bus Crime Control and Safe Streets Act of 1968, as amended (42 U.S.C. § 3789d); Section 504 of the Rehabilitation Act of 1973, as amended (29 U.S.C. § 794); the Age Discrimination Act of 1975, as amended (42 U.S.C. § 6101); Title IX of the Education Amendments of 1972, as amended (20 U.S.C. § 1681); and the corresponding U.S. Department of Justice regulations implementing those statutes at 28 C.F.R. Part 42 (subparts C, D, E, G, and I). It will also comply with Executive Order 13279, as amended by Executive Order 13559, and the implementing regulations at 28 C.F.R Part 38, Partnerships With Faith-Based and Other Neighborhood Organizations, which requires equal treatment of religious organizations in the funding process and prohibits religious discrimination against beneficiaries.
A. In the event that any court or administrative agency makes a finding of discrimination on grounds of race, color, religion, national origin, or sex against the applicant after a due process hearing, it agrees to forward a copy of the finding to the Office for Civil Rights, Office of Justice Programs, 810 7th Street, NW, Washington, D.C. 20531.
B. If your organization is a government agency or private business and has received a single award for $25,000 or more and has fifty or more employees (counting both full- and part-time employees but excluding political appointees), then it has to prepare a Utilization Report and submit it to the Office for Civil Rights (OCR) within 120 days from the date of the award. Although the OCR has discretion to review all submitted Utilization Reports, it will review the Utilization Reports from recipients that receive an award of $500,000 or more. To begin developing a Utilization Report, please consult the OCR's website at https://www.ojp.usdoj.gov/about/ocr/eeop.htm and click EEOP Reporting Tool Login. Additional assistance can be found online at the bottom of the same webpage by clicking the EEO Reporting Tool Job Aid and Frequently Asked Questions. If your organization has less than fifty employees or receives an award of less than $25,000 or is a nonprofit organization, a medical institution, an educational institution, or an Indian tribe, then it is exempt from the EEOP requirement. To claim the exemption, however, your organization must certify that it is exempt by logging into the EEO Reporting Tool on the OCR website at https://www.ojp.usdoj.gov/about/ocr/eeop.htm, providing the contact and organizational profile information, and then submitting a Certificate of Exemption. If you have further questions regarding the EEOP requirements, you may contact an EEOP specialist at the OCR by telephone at (202) 307-0690, by TTY at (202) 307-2027, or by e-mail at EEOPforms@usdoj.gov.
9. Pursuant to U.S. Department of Justice guidelines (June 18, 2002 Federal Register, Volume 67, Number 117, pages 41455-41472), under Title VI of the Civil Rights Act of 1964, it will ensure meaningful access to its programs and activities by persons with limited English proficiency.
10. It will ensure that any facilities under its ownership, lease or supervision which shall be utilized in the accomplishment of the project are not listed on the Environmental Protection Agency’ (EPA) list of Violating Facilities and that it will notify us if advised by the EPA that a facility to be used in this grant is under consideration for such listing by the EPA.
11. If the applicant’s state has established a review and comment procedure under Executive Order 12372 and has selected this program for review, it has made this application available for review by the state Single Point of Contact.
12. It will submit all surveys, interview protocols, and other information collections to the COPS Office for submission to the Office of Management and Budget for clearance under the Paperwork Reduction Act of 1995 if required.
13. It will comply with the Human Subjects Research Risk Protections requirements of 28 C.F.R. Part 46 if any part of the funded project contains nonexempt research or statistical activities which involve human subjects and also with 28 C.F.R. Part 22, requiring the safeguarding of individually identifiable information collected from research participants.
14. Pursuant to Executive Order 13043, it will enforce on-the-job seat belt policies and programs for employees when operating agency-owned - or - rented or personally-owned vehicles.
15. As required by 42 U.S.C. § 3796dd-3(a), it will not use COPS Office funds to supplant (replace) state, local, or Bureau of Indian Affairs funds that otherwise would be made available for the purposes of this award, as applicable.
16. If the award contains a retention requirement, it will retain the increased officer staffing level or the increased officer redeployment level, as applicable, with state or local funds for a minimum of 12 months following expiration of the award period.
17. It will not use any federal funding directly or indirectly to influence in any manner a Member of Congress, a jurisdiction, or an official of any government, to favor, adopt, or oppose, by vote or otherwise, any legislation, law ratification, policy or appropriation whether before or after the introduction of any bill, measure, or resolution proposing such legislation, law, ratification, policy or appropriation as set forth in the Anti- Lobby Act, 18 U.S.C. § 1913.
18. In the event that a portion of award reimbursements are seized to pay off delinquent federal debts through the Treasury Offset Program or other debt collection process, it agrees to increase the nonfederal share (or, if the award does not contain a cost sharing requirement, contribute a nonfederal share) equal to the amount seized in order to fully implement the award project.
False statements or claims made in connection with COPS Office award may result in fines, imprisonment, debarment from participating in federal awards or contracts, and/or any other remedy available by law.
I certify that the assurances provided are true and accurate to the best of my knowledge.
Elections or other selections of new officials will not relieve the recipient of its obligations under this award.
Signature of Law Enforcement Executiv e/Agency Executiv e (For your electronic signature, please type in your name) Charlie Beck
Charlie Beck
Date:

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07/07/2017

Signature of Gov ernment Executiv e/Financial Official (For your electronic signature, please type in your name) Eric Garcetti Eric Garcetti
Date: 07/07/2017

SECTION 15B: CERTIFICATIONS

Regarding Lobbying; Debarment, Suspension and Other Responsibility Matters; Federal Taxes and Assessments; Drug-Free Workplace Requirements; and Coordination with Affected Agencies.

Although the U.S. Department of Justice has made every effort to simplify the application process, other provisions of federal law require us to seek your agency’s certification regarding certain matters. Applicants should carefully review the statutes and regulations cited below and the instructions for certification to understand the requirements and whether they apply to a particular applicant. Signing this form complies with the certification and notice requirements under 28 C.F.R. Part 69 “New Restrictions on Lobbying”; 2 C.F.R. Part 2867 “Nonprocurement Debarment and Suspension”; 2 C.F.R. Part 200 “Uniform Administrative Requirements, Cost Principles, and Audit Requirements for Federal Awards”; the general provisions in the applicable Appropriations Act; 28 C.F.R. Part 83 “Government-Wide Requirements for Drug-Free Workplace (Grants)”; and the Public Safety Partnership and Community Policing Act of 1994. The certifications shall be treated as a material representation of fact upon which reliance will be placed when the U.S. Department of Justice determines to make the covered award.

1. Lobbying

As required by 31 U.S.C. § 1352, implemented at 28 C.F.R. Part 69, for persons entering into a grant or cooperative agreement over $100,000, and 2 C.F.R. § 200.450 as adopted by the U.S. Department of Justice in 2 C.F.R. § 2800.101, the applicant certifies to the following:

A. No federal appropriated funds have been paid or will be paid, by or on behalf of the undersigned, to any person for influencing or attempting to influence an officer or employee of any agency, a member of Congress, an officer or employee of Congress, or an employee of a member of Congress in connection with the making of any federal grant; the entering into of any cooperative agreement; or the extension, continuation, renewal, amendment or modification of any federal grant or cooperative agreement.

B. If any funds other than federal appropriated funds have been paid or will be paid to any person for influencing or attempting to influence an officer or employee of any agency, a member of Congress, an officer or employee of Congress, or an employee of a member of Congress in connection with this federal grant or cooperative agreement, the undersigned shall complete and submit Standard Form - LLL, “Disclosure of Lobbying Activities,” in accordance with its instructions.

C. If applicant is a nonprofit organization or an institution of higher education, it will comply with the additional lobbying restrictions set forth in 2 C.F.R. § 200.450(c) as adopted by the U.S. Department of Justice in 2 C.F.R. § 2800.101.

D. The undersigned shall require that the language of this certification be included in the award documents for all subawards at all tiers (including subgrants, contracts under grants and cooperative agreements, and subcontracts) and that all subrecipients shall certify and disclose accordingly.

2. Debarment, Suspension and Other Responsibility Matters (Direct Recipient)

Pursuant to Executive Order 12549, Debarment and Suspension, as implemented at 2 C.F.R. Part 2867, for prospective participants in primary covered transactions, as defined at 2 C.F.R. § 2867.20(a), and other requirements, the applicant certifies that it and its principals:

A. Are not presently debarred, suspended, proposed for debarment, declared ineligible, sentenced to a denial of federal benefits by a state or federal court, or voluntarily excluded from covered transactions by any federal department or agency;

B. Have not within a three-year period preceding this application been convicted of a felony criminal violation under any federal law, or been convicted or had a civil judgment rendered against them for commission of fraud or a criminal offense in connection with obtaining, attempting to obtain, or performing a public (federal, state or local) or private agreement or transaction; violation of federal or state antitrust statutes or commission of embezzlement, theft, forgery, bribery, falsification or destruction of records, making false statements, tax evasion or receiving stolen property, making false claims, or obstruction of justice, or commission of any offense indicating a lack of business integrity or business honesty that seriously and directly affects your present responsibility;

C. Are not presently indicted for or otherwise criminally or civilly charged by a governmental entity (federal, state or local) with commission of any of the offenses enumerated in paragraph B. of this certification; and

D. Have not within a three-year period preceding this application had one or more public transactions (federal, state or local) terminated for cause or default.

3. Mandatory Disclosure

Pursuant to the Uniform Administrative Requirements, Cost Principles, and Audit Requirements for Federal Awards, 2 C.F.R. § 200.113 as adopted by the U.S. Department of Justice in 2 C.F.R. § 2800.101, the applicant certifies that it:

A. Has not violated any federal criminal law involving fraud, br bery, or gratuity that may potentially affect the federal award;

B. Shall timely disclose in writing to the federal awarding agency or pass-through entity, as applicable, any violation of federal criminal law involving fraud, bribery, or gratuity that may potentially affect the federal award; and

C. Shall require that the language of this certification be included in the award documents for all subawards (including subgrants and cooperative agreements) and shall require all subrecipients certify and disclose accordingly.

4. Federal Taxes and Assessments

A. If applicable, an applicant who receives an award in excess of $5,000,000 certifies that, to the best of its knowledge and belief, the applicant has filed all federal tax returns required during the three years preceding the certification, has not been convicted of a criminal offense under the Internal Revenue Code of 1986, and has not, more than 90 days prior to certification, been notified of any unpaid federal tax assessment for which the liability remains unsatisfied, unless the assessment is the subject of an installment agreement or offer in compromise that has been approved by the Internal Revenue Service and is not in default, or the assessment is the subject of a non-frivolous administrative or judicial proceeding.

B. The applicant certifies that it does not have any unpaid federal tax liability that has been assessed, for which all judicial and administrative remedies have been exhausted or have lapsed, and that is not being paid in a timely manner pursuant to an agreement with the authority responsible for collecting the tax liability.

5. Drug-Free Workplace

As required by the Drug-Free Workplace Act of 1988 (41 U.S.C. § 8103), implemented at 28 C.F.R. Part 83, for recipients other than individuals as defined at 28 C.F.R. § 83.660 –

A. The applicant certifies that it will, or will continue to, provide a drug- free workplace by doing the following: https://portal.cops.usdoj.gov/SMS/PrintView.aspx?printType=confirmation

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ATTACHMENT 1

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Certification of Illegal Immigration Cooperation
On behalf of the applicant entity named below, I certify under penalty of perjury to the Office of Community Oriented Policing Services, U.S. Department of Justice, that all of the following is true and correct:
(1) As the Law Enforcement Executive or Government Executive for the applicant entity named below, I have the authority to make this certification on behalf of the applicant entity (that is, the entity applying directly to the Office of Community Oriented Policing Services) and its governing body (i.e., city, county, or state).
(2) The applicant entity and/or its governing body has implemented or, before drawing down grant funds if awarded, will implement rules, regulations, policies, and/or practices that ensure that U.S. Department of Homeland Security (“DHS”) personnel have access to any of the governing body’s correctional or detention facilities in order to meet with an alien (or an individual believed to be an alien) and inquire as to his or her right to be or to remain in the United States.
(3) The applicant entity and/or its governing body has implemented or, before drawing down grant funds if awarded, will implement rules, regulations, policies, and/or practices that ensure that any of the governing body’s correctional and detention facilities provide advance notice as early as practicable (at least 48 hours, where possible) to DHS regarding the scheduled release date and time of an alien in the jurisdiction’s custody when DHS requests such notice in order to take custody of the alien. This certification does not require holding an alien beyond his or her scheduled time of release.

I acknowledge that a false statement in this certification, or in the application that it supports, may be the subject of criminal prosecution (including under 18 U.S.C. §§ 1001 and/or 1621, and/or 42 U.S.C. § 3795), of administrative action, and/or of civil action in court. I also acknowledge that Office of Community Oriented Policing Services awards, including certifications provided in connection with such awards, are subject to review by the Office of Community Oriented Policing Services and/or by the Department of Justice’s Office of the Inspector General.

___________________________________________________________________________________ Name of Applicant Entity

_____________________________________ Signature of Law Enforcement Executive

______________________________________ Signature of Government Executive

_____________________________________

______________________________________

Printed Title and Name of Law Enforcement Executive Printed Title and Name of Government

Executive

_____________________________________ Date Signed

______________________________________ Date Signed

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EXHIBIT 10

Department of Justice Announces Priority Consideration Criteria for COPS Office Grants ... Page 1 of 1 Case 2:17-cv-07215 Document 1-10 Filed 09/29/17 Page 2 of 2 Page ID #:248

JUSTICE NEWS

FOR IMMEDIATE RELEASE

Department of Justice Office of Public Affairs

Thursday, September 7, 2017

Department of Justice Announces Priority Consideration Criteria for COPS Office Grants
The Department of Justice today announced additional priority consideration criteria for FY 2017 Office of Community Oriented Policing Services (COPS Office) grants. Jurisdictions for FY 2017 were notified that their applications would receive additional points in the application scoring process if their agencies cooperate with federal law enforcement to address illegal immigration, ensuring that federal immigration authorities have the full ability to enforce immigration laws and keep our communities safe.

“Cities and states that cooperate with federal law enforcement make all of us safer by helping remove dangerous criminals from our communities,” Attorney General Jeff Sessions said. “This cooperation is supported by the vast majority of the American people, and jurisdictions with these policies in place should be acknowledged for their commitment to ending violent crime, including violent crime stemming from illegal immigration. Today, the Justice Department announced it will recognize jurisdictions that commit to the rule of law by awarding additional points in the application scoring process for COPS Office grants. My hope is that this recognition will further incentivize every jurisdiction in America to collaborate with federal law enforcement and help us make this country safer.”
Attachment(s): Download COPS Grant Cooperation Backgrounder
Component(s): Office of the Attorney General
Press Release Number: 17-976
Updated September 7, 2017

https://www.justice.gov/opa/pr/department-justice-announces-priority-consideration-criteri... 9/28/2017

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COPS Office: Immigration Cooperation Certification Process Background The following is on background, attributable to a DOJ official:
• The Department of Justice encourages cooperation between local jurisdictions and federal immigration authorities.
• The Office of Community Oriented Policing Services (COPS Office) notified its FY2017 state, local, and tribal law enforcement grant applicants that they might receive priority consideration in funding decisions if they cooperate with federal law enforcement.
• In order to receive priority consideration, applicants must certify the following: o If the applicant operates a detention facility, the applicant must provide Department of Homeland Security (DHS) access to their detention facility; o And, the applicant must provide advance notice as early as practicable (at least 48 hours, where possible) to DHS of an illegal alien’s release date and time.
• Applicants that submit the certification will receive additional points in the application scoring process in recognition of their efforts to increase information sharing with federal immigration authorities.
• Background on FY2012-FY2016 grants can be found here.

 </s> Case 2:17-cv-07215-R-JC Document 7 Filed 09/29/17 Page 1 of 5 Page ID #:262

1 MICHAEL N. FEUER, SBN 111529

MITCHELL A. KAMIN, SBN 202788

2 City Attorney JAMES P. CLARK, SBN 64780
3 Chief Deputy City Attorney

MÓNICA RAMÍREZ ALMADANI, SBN 234893 NEEMA T. SAHNI, SBN 274240

4 LEELA A. KAPUR, SBN 125548 Executive Assistant City Attorney
5 VALERIE L. FLORES, SBN 138572

Covington & Burling LLP 1999 Avenue of the Stars, Suite 3500 Los Angeles, California 90067-4643

6 Managing Senior Assistant City Attorney mkamin@cov.com

MICHAEL DUNDAS, SBN 226930

Telephone: (424) 332-4800

7 Deputy City Attorney

Facsimile: (424) 332-4749

8 200 North Main Street, City Hall East Suite 800
9 Los Angeles, California 90012

DAVID M. ZIONTS, pro hac vice application forthcoming

10 james.p.clark@lacity.org

11

Telephone: (213) 978-8344 Facsimile: (213) 978-8312

IVANO M. VENTRESCA, pro hac vice application forthcoming Covington & Burling LLP

12

One CityCenter, 850 Tenth Street NW

13

Washington, DC 20001 dzionts@cov.com

14

Telephone: (202) 662-6000

15 Attorneys for Plaintiff City of Los Angeles Facsimile: (202) 662-5987

16

17

UNITED STATES DISTRICT COURT

18

FOR THE CENTRAL DISTRICT OF CALIFORNIA

19 20 CITY OF LOS ANGELES,

Case No.:

21

Plaintiff,

22

v.

23

24

JEFFERSON B. SESSIONS, III, in his official capacity as Attorney General of the

25 United States; ALAN HANSON, in his

26

official capacity as Acting Assistant Attorney General of the Office of Justice

27 Programs; RUSSELL WASHINGTON, in

28 his official capacity as Acting Director of

CITY OF LOS ANGELES’ NOTICE OF APPLICATION AND APPLICATION FOR PRELIMINARY INJUNCTION

CITY OF LOS ANGELES’ NOTICE OF APPLICATION AND APPLICATION FOR PRELIMINARY INJUNCTION

Case 2:17-cv-07215-R-JC Document 7 Filed 09/29/17 Page 2 of 5 Page ID #:263

1 the Office of Community Oriented Policing 2 Services; UNITED STATES
DEPARTMENT OF JUSTICE. 3

4

Defendants.

5

6

7

8

9

10

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12

13

14

15

16

17

18

19

20

21

22

23

24

25

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CITY OF LOS ANGELES’ NOTICE OF APPLICATION AND APPLICATION FOR PRELIMINARY INJUNCTION

Case 2:17-cv-07215-R-JC Document 7 Filed 09/29/17 Page 3 of 5 Page ID #:264

1 TO THE COURT, ALL PARTIES AND THEIR ATTORNEYS OF RECORD:

2

PLEASE TAKE NOTICE that on October 30 or earlier, or as soon thereafter as

3 may be heard, in the above-entitled Court, before a judicial officer thereof, Plaintiff City

4 of Los Angeles (“Los Angeles” or “City”) shall and hereby does apply to the Court for an

5 order for a preliminary injunction, pursuant to Federal Rule of Civil Procedure 65 and

6 Local Rule 65-1, against Defendants Jefferson B. Sessions, III, in his official capacity as

7 Attorney General of the United States; Russell Washington, in his official capacity as

8 Acting Director of the Office of Community Oriented Policing Services; and the United

9 Stated Department of Justice (“DOJ”), and their officers, agents, servants, and employees

10 (collectively “Defendants”). Plaintiff requests that the Court enjoin Defendants, in

11 making grant award determinations under the Community Oriented Policing Services

12 (“COPS”) program, from providing “additional consideration” or any other preferential

13 treatment to applicants that choose “Illegal Immigration” as a focus area of the grant, or

14 applicants that certify compliance with the Notice and Access Requirements announced

15 by the Department of Justice on September 7, 2017.

16

The COPS program helps local communities put more officers on the street in

17 order to advance community policing efforts. Congress enumerated twenty-two statutory

18 purposes for which COPS funds may be used, and three grounds on which COPS

19 applicants may be given preferential treatment. Neither the statute’s purposes nor its

20 grounds for preferential consideration have anything to do with civil immigration

21 enforcement. Defendants have nonetheless announced two immigration-related grounds

22 on which applicants will be provided “additional consideration”—essentially bonus

23 points that will be used to advantage some applicants at the expense of others.

24

First, applicants will receive additional consideration if they agree to use grant

25 funds to “focus” on “Illegal Immigration.” Second, applicants will receive additional

26 consideration if they agree to specified forms of partnership in federal civil immigration

27 enforcement. Cities like Los Angeles that are unwilling or unable to participate in federal

28

1
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Case 2:17-cv-07215-R-JC Document 7 Filed 09/29/17 Page 4 of 5 Page ID #:265

1 civil immigration enforcement will be required to compete for community policing funds

2 on an uneven playing field.

3

Plaintiff is likely to succeed on the merits of its challenge to the imposition of

4 immigration-related additional considerations in awarding COPS grants. Defendants

5 actions are ultra vires and in violation of the Separation of Powers under the

6 Constitution; in violation of the Spending Clause and the Tenth Amendment; and

7 arbitrary and capricious agency action in violation of the Administrative Procedure Act.

8 Absent an injunction, Plaintiff will be irreparably harmed because it will suffer a

9 disadvantage in the competition for grant funds as a result of its unwillingness to engage

10 in the demanded forms of partnership in federal civil immigration enforcement. The

11 balance of equities tips decisively in Plaintiff’s favor, and the public interest favors an

12 injunction.

13

Defendants previously announced that COPS award determinations would be made

14 soon after September 30, 2017. Counsel for Defendants has represented that COPS

15 Hiring Program award determinations will not be made before October 30, 2017.

16 Accordingly, in order to prevent irreparable harm, Plaintiff respectfully requests that a

17 preliminary injunction be entered in advance of October 30, 2017. Plaintiff therefore

18 intends to file a separate motion seeking an expedited hearing and briefing schedule.

19

This motion is based on this Notice of Application and Application, the

20 accompanying supporting Memorandum of Points and Authorities, the supporting

21 declarations of Steven Hong (Deputy City Attorney of the Los Angeles’ City Attorney’s

22 Office), Stella Larracas (Officer in Charge of the Los Angeles Police Department’s

23 Grants Section), and Michael Hyams (Commanding Officer of the Los Angeles Police

24 Department’s Risk Management and Legal Affairs Group), all other papers and pleadings

25 on file in this action, and on such other written or oral evidence as may be presented at or

26 before the hearing on this Application.

27

28

2
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Case 2:17-cv-07215-R-JC Document 7-1 Filed 09/29/17 Page 1 of 32 Page ID #:267

1 MICHAEL N. FEUER, SBN 111529

MITCHELL A. KAMIN, SBN 202788

2 City Attorney JAMES P. CLARK, SBN 64780
3 Chief Deputy City Attorney

MÓNICA RAMÍREZ ALMADANI, SBN 234893 NEEMA T. SAHNI, SBN 274240

4 LEELA A. KAPUR, SBN 125548 Executive Assistant City Attorney
5 VALERIE L. FLORES, SBN 138572

Covington & Burling LLP 1999 Avenue of the Stars, Suite 3500 Los Angeles, California 90067-4643

6 Managing Senior Assistant City Attorney mkamin@cov.com

MICHAEL DUNDAS, SBN 226930

Telephone: (424) 332-4800

7 Deputy City Attorney

Facsimile: (424) 332-4749

8 200 North Main Street, City Hall East Suite 800
9 Los Angeles, California 90012

DAVID M. ZIONTS, pro hac vice application forthcoming

10 james.p.clark@lacity.org

11

Telephone: (213) 978-8344 Facsimile: (213) 978-8312

IVANO M. VENTRESCA, pro hac vice application forthcoming Covington & Burling LLP

12

One CityCenter

13

850 Tenth Street NW Washington, DC 20001

14

dzionts@cov.com

15

Telephone: (202) 662-6000 Facsimile: (202) 662-5987

16

17 Attorneys for Plaintiff City of Los Angeles

18

UNITED STATES DISTRICT COURT

19

FOR THE CENTRAL DISTRICT OF CALIFORNIA

20

21 22 CITY OF LOS ANGELES,

23

Plaintiff,

Case No.:

24

v.

25

26

JEFFERSON B. SESSIONS, III, in his official capacity as Attorney General of the

27 United States; ALAN R. HANSON, in his

28 official capacity as Acting Assistant

CITY OF LOS ANGELES’ MEMORANDUM IN SUPPORT OF APPLICATION FOR PRELIMINARY INJUNCTION

CITY OF LOS ANGELES’ MEMORANDUM IN SUPPORT OF APPLICATION FOR PRELIMINARY INJUNCTION

Case 2:17-cv-07215-R-JC Document 7-1 Filed 09/29/17 Page 2 of 32 Page ID #:268

1 Attorney General of the Office of Justice 2 Programs; RUSSELL WASHINGTON, in
his official capacity as Acting Director of 3 the Office of Community Oriented Policing 4 Services; UNITED STATES
DEPARTMENT OF JUSTICE. 5

6

Defendants.

7

8

9

10

11

12

13

14

15

16

17

18

19

20

21

22

23

24

25

26

27

28

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Case 2:17-cv-07215-R-JC Document 7-1 Filed 09/29/17 Page 3 of 32 Page ID #:269

1

2

TABLE OF CONTENTS

3

4 TABLE OF AUTHORITIES .................................................................................... ii

5 I. INTRODUCTION .......................................................................................... 1

6 II. FACTUAL BACKGROUND......................................................................... 2

7

A. Community Oriented Policing Services (“COPS”) Grant Program For

8

Hiring Police Officers In Support Of Community Policing ................ 2

9

B. Defendants’ Attempt To Disfavor COPS Grant Applicants That Do

10

Not Participate In Federal Civil Immigration Enforcement................. 4

11

C. Consistent With The Statutory Purpose Of The COPS Program, Los

12

Angeles Uses Its Funding To Enhance Community Policing.............. 8

13

D. Los Angeles’ Policies Against Engaging In Federal Civil Immigration

14

Enforcement ......................................................................................... 9

15 III. ARGUMENT................................................................................................ 11

16

A. Los Angeles Is Likely To Succeed On the Merits. ............................ 11

17

1. The Challenged Considerations Are Ultra Vires and Violate the

18

Separation of Powers. .............................................................. 11

19

2. The Challenged Considerations Violate the Spending Clause. 15

20

3. The Challenged Considerations Are Invalid Under the

21

Administrative Procedure Act.................................................. 20

22

B. Los Angeles Will Suffer Irreparable Injury Absent An Injunction

23

From This Court. ................................................................................ 21

24

C. The Balance Of Equities And The Public Interest Weigh Heavily In

25

Favor Of The Requested Injunction. .................................................. 23

26 IV. CONCLUSION............................................................................................. 25

27

28

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Case 2:17-cv-07215-R-JC Document 7-1 Filed 09/29/17 Page 4 of 32 Page ID #:270

1

TABLE OF AUTHORITIES

2

Page(s)

3 Cases

4 Alliance for the Wild Rockies v. Cottrell,

5

632 F.3d 1127 (9th Cir. 2011) ...................................................................................... 11

6 Am. Trucking Ass’ns, Inc. v. City of Los Angeles,

7

559 F.3d 1046 (9th Cir. 2009) ...................................................................................... 23

8

Arizona v. United States, 132 S. Ct. 2492 (2012)............................................................................................ 14, 18

9

10

Arlington Cent. Sch. Dist. Bd. of Educ. v. Murphy, 548 U.S. 291 (2006)...................................................................................................... 17

11 Az. Cattle Growers’ Ass’n v. U.S. Fish & Wildlife, Bureau of Land Mgmt.,

12

273 F.3d 1229 (9th Cir. 2001) ...................................................................................... 20

13 Bullfrog Films, Inc. v. Wick,

14

847 F.2d 502 (9th Cir. 1988) ........................................................................................ 22

15 Chubb Custom Ins. Co. v. Space Systems/Loral, Inc.,

16

710 F.3d 946 (9th Cir. 2013) ........................................................................................ 12

17 City and Cty. of San Francisco v. Trump,

18

2017 WL 1459081 (N.D. Cal. Apr. 25, 2017).............................................. 5, 12, 23, 24

19 City of Arlington v. FCC, 133 S. Ct. 1863 (2013).................................................................................................. 11
20

21

City of Chicago v. Sessions, 2017 WL 4081821 (N.D. Ill. Sept. 15, 2017) ......................................... 6, 12, 13, 23, 25

22

23

Com. Va., Dep’t of Educ. v. Riley, 106 F.3d 559 (4th Cir. 1997.......................................................................................... 15

24 Gordon v. Holder,

25

721 F.3d 638 (D.C. Cir. 2013) ...................................................................................... 24

26 Gregory v. Ashcroft,

27

501 U.S. 452 (1991)...................................................................................................... 15

28

ii
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Case 2:17-cv-07215-R-JC Document 7-1 Filed 09/29/17 Page 5 of 32 Page ID #:271

1 Int’l Franchise Ass’n, Inc. v. City of Seattle,

2

803 F.3d 389 (9th Cir. 2015) ........................................................................................ 22

3 Kansas v. United States,

4

249 F.3d 1213 (10th Cir. 2001) .................................................................................... 22

5 Louisiana Pub. Serv. Comm’n v. FCC, 476 U.S. 355 (1986)...................................................................................................... 11
6

7

Melendres v. Arpaio, 695 F.3d 990 (9th Cir. 2012) ........................................................................................ 24

8

9

Morales v. Trans World Airlines, Inc., 504 U.S. 374 (1992)...................................................................................................... 22

10 Motor Vehicle Mfrs. Ass’n of U.S., Inc. v. State Farm Mut. Auto Ins. Co.,

11

463 U.S. 29 (1983)........................................................................................................ 21

12 Ne. Fla. Ch. of Assoc. Gen. Contractors of Am. v. City of Jacksonville,

13

508 U.S. 656 (1993)...................................................................................................... 22

14 Nevada v. Skinner,

15

884 F.2d 445 (9th Cir. 1989) ........................................................................................ 16

16 Nken v. Holder,

17

556 U.S. 418 (2009)...................................................................................................... 24

18

Pennhurst State Sch. & Hosp. v. Halderman, 451 U.S. 1 (1981).......................................................................................................... 16

19

20

Planned Parenthood Ass’n of Cincinnati, Inc. v. City of Cincinnati, 822 F.2d 1390 (6th Cir. 1987) ...................................................................................... 24

21 S. Dakota v. Dole,

22

483 U.S. 203 (1987).......................................................................................... 15, 16, 17

23 San Luis & Delta-Mendota Water Auth. v. Jewell,

24

747 F.3d 581 (9th Cir. 2014) ........................................................................................ 20

25 Shell Offshore, Inc. v. Greenpeace, Inc.,

26

709 F.3d 1281 (9th Cir. 2013) ...................................................................................... 22

27 U.S. Army Corps of Eng’rs v. Hawkes Co.,

28

136 S. Ct. 1807 (2016).................................................................................................. 20

iii
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Case 2:17-cv-07215-R-JC Document 7-1 Filed 09/29/17 Page 6 of 32 Page ID #:272

1 Winter v. Natural Resources Defense Council,

2

555 U.S. 7 (2008).......................................................................................................... 24

3 Statutes

4 5 U.S.C. § 706(2)(A).......................................................................................................... 20
5 8 U.S.C. § 1357(g) ....................................................................................................... 14, 18 6
34 U.S.C. § 10228(a) ......................................................................................................... 14 7 8 34 U.S.C. § 10381 ............................................................................ 3, 4, 6, 9, 12, 13, 16, 25
9 34 U.S.C. § 10382(b) ......................................................................................................... 13

10

11

12

13

14

15

16

17

18

19

20

21

22

23

24

25

26

27

28

iv
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Case 2:17-cv-07215-R-JC Document 7-1 Filed 09/29/17 Page 7 of 32 Page ID #:273

1 I. INTRODUCTION

2

Congress enacted the Community Oriented Policing Services (“COPS”) grant

3 program to help local communities put more officers on the street in order to advance

4 community policing efforts. The Attorney General is attempting to change the terms of

5 that program as Congress created it, using it as a vehicle to require state and local

6 governments to participate in the enforcement of federal civil immigration policies.

7 Specifically, the Department of Justice (“DOJ”) has decided that in the COPS award

8 decisions that are soon to issue, it will disfavor state and local governments that are

9 unwilling or unable to participate in federal civil immigration enforcement.

10

This is just the latest in a series of unlawful efforts by the Executive Branch to use

11 federal funds as a “weapon” to induce support for its current civil immigration

12 enforcement agenda. Many communities, including Los Angeles, have made the policy

13 decision that enmeshing themselves in federal immigration enforcement harms public

14 safety and erodes the community’s trust in local law enforcement. Well-settled principles

15 of federalism make clear that state and local governments are entitled to make that

16 sovereign choice. Since the beginning of this year, however, the Executive has imposed

17 a steady stream of measures attempting to require states and local governments to

18 participate in federal civil immigration enforcement. While framed in terms of

19 “enforcing the law,” it is the Administration’s approach that has proved unlawful. In

20 April, a district court in San Francisco enjoined an Executive Order by President Trump

21 attempting to broadly tie federal funding to civil immigration enforcement. Just two

22 weeks ago, a district court in Chicago enjoined Attorney General Sessions’ attempt to

23 require specific types of participation in federal civil immigration efforts as a condition

24 for receipt of federal funding under the Byrne Justice Assistance Grant (“JAG”) program.

25

DOJ’s rewriting of the COPS program is more of the same. Apparently

26 recognizing its lack of authority to impose immigration-related conditions on these

27 grants, DOJ is attempting a new way to dragoon state and local entities into participating

28 in federal civil immigration enforcement. DOJ is now providing “Additional

CITY OF LOS ANGELES’ MEMORANDUM IN SUPPORT OF APPLICATION FOR PRELIMINARY INJUNCTION

Case 2:17-cv-07215-R-JC Document 7-1 Filed 09/29/17 Page 8 of 32 Page ID #:274

1 Consideration”—essentially bonus points—to applicants willing to treat civil

2 immigration enforcement as a “focus area” of their grant-supported program, even though

3 Congress did not authorize COPS funding to be used for immigration enforcement. And

4 just in the last few weeks, after applications for COPS grants were already received, DOJ

5 sprung on applicants a further “Additional Consideration” for communities willing to

6 meet specific federal demands for participation in federal civil immigration

7 enforcement—requirements that are materially identical to the two conditions that

8 another federal court just enjoined. The result is that in the competition for federal funds

9 to support community policing, DOJ is stacking the deck in favor of jurisdictions that are

10 willing to volunteer to support federal civil immigration enforcement, and disfavoring

11 communities that are not.

12

This latest effort to tie federal funding to the Executive Branch’s unrelated civil

13 immigration enforcement agenda is unlawful, just like its predecessors. The Attorney

14 General is violating the separation of powers by disregarding the limits on his statutory

15 authority; is acting in violation of the Spending Clause and Tenth Amendment by failing

16 to adhere to the constitutional requirements on conditioning federal funds; and has

17 adopted an award process that is arbitrary and capricious. DOJ has stated that it will

18 issue COPS awards as early as October 30, 2017. If DOJ is not prevented from using

19 unlawful considerations in deciding who does and does not receive COPS funding, the

20 skewed awards would prove difficult or impossible to unwind and reallocate through a

21 lawful process. Accordingly, the City of Los Angeles respectfully requests that the court

22 enter a preliminary injunction to prevent immediate and irreversible harm, and prohibit

23 DOJ from using the unlawful considerations in its COPS award determinations.

24 II. FACTUAL BACKGROUND

25

A. Community Oriented Policing Services (“COPS”) Grant Program For

26

Hiring Police Officers In Support Of Community Policing

27

In a provision in the legislation creating the COPS program entitled “Authority to

28 make public safety and community policing grants,” Congress authorized the Attorney

2
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Case 2:17-cv-07215-R-JC Document 7-1 Filed 09/29/17 Page 9 of 32 Page ID #:275

1 General to “make[] grants to States, units of local government, Indian tribal governments,

2 other public and private entities, and multi-jurisdictional or regional consortia for the

3 purposes described in subsection (b) of this section.” 34 U.S.C. § 10381(a). In

4 subsection (b), Congress limited “[t]he purposes for which grants . . . may be made,” id.

5 § 10381(b), to twenty-two specific purposes regarding the hiring and rehiring of law

6 enforcement officers for community policing, implementing related training, procuring

7 related equipment and technology, and developing new related technology and programs.

8 Id. § 10381(b)(1)-(22).

9

COPS grant funding is administered by the Office of Community Oriented

10 Policing Services (“COPS Office”) within the U.S. Department of Justice. See 2017 CHP

11 Application Guide, attached as Ex. B to Decl. of Stella Larracas at 61. The COPS Office

12 administers several types of COPS programs each year, including the COPS Hiring

13 Program (“CHP”) grant. This COPS grant “provides funding directly to law enforcement

14 agencies to hire and/or rehire career law enforcement officers in an effort to increase their

15 community policing capacity and crime prevention efforts.” Id. at 1, 7. Pursuant to

16 statute, COPS grants may fund up to 75 percent of the salary and benefits of the hired or

17 rehired officers. See id.; see also 34 U.S.C. § 10381(g). Each fiscal year, the COPS

18 Office selects local government awardees to receive CHP funds that, in general, may be

19 used over a period of three years. See Larracas Decl. Ex. B at 1.

20

In evaluating COPS grant applications, Congress authorized the Attorney General

21 to give “preferential consideration, where feasible, to an application” that meets one or

22 more of three criteria: (1) an application “for hiring and rehiring additional career law

23 enforcement officers that involves a non-Federal contribution exceeding the 25 percent

24 minimum” non-federal contribution; (2) the applicant is in a state that has in effect anti-

25 human trafficking laws that treat minors engaged in commercial sex as victims; or (3) the

26 applicant is in a state that has in effect laws related to allowing the vacatur of arrests or

27 convictions for non-violent crimes committed by human trafficking victims directly

28 related to their human trafficking. 34 U.S.C. § 10381(c).

3
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Case 2:17-cv-07215-R-JC Document 7-1 Filed 09/29/17 Page 10 of 32 Page ID #:276

1

The COPS Office determines which applicants receive CHP grants through a

2 points system. In calculating an applicant’s score for a CHP grant in FY 2016, for

3 example, “fiscal need . . . constitute[d] 20 percent, crime 30 percent, and community

4 policing 50 percent of the overall score.” 2016 CHP Application Guide, attached as Ex.

5 C to Larracas Decl. at 21. The COPS Office also provided “additional consideration” to

6 applicants on various grounds. Id. The COPS Office does not explain how localities

7 receive points in the various categories, or the relative weight given to additional

8 considerations in the overall scoring system. See id.

9

B. Defendants’ Attempt To Disfavor COPS Grant Applicants That Do Not

10

Participate In Federal Civil Immigration Enforcement

11

President Donald J. Trump has declared that he would use federal funds as a

12 “weapon” to require state and local support for his civil immigration enforcement

13 policies.1 On January 25, 2017, President Trump issued Executive Order 13768 directing

14 the Attorney General and Secretary of Homeland Security to withhold federal funds from

15 what he called “Sanctuary Jurisdictions.”2 On April 25, 2017, a federal district court

16 enjoined Section 9(a) of the Executive Order, ruling that the plaintiff jurisdictions in that

17 case are likely to succeed on their claims that the order is unconstitutional because the

18 Executive Branch is usurping authority that belongs to Congress under the Spending

19 Clause; the order violates constitutional limits on federal spending authority; the order

20 violates the Tenth Amendment’s prohibition against the federal government

21 commandeering local jurisdictions to administer a federal regulatory program; the order

22 is unconstitutionally vague; and the order violates requirements of due process. Cty. of

23

24

25 1 Harriet Taylor, Trump to Fox News: “I may defund California as ‘a weapon’ to fight

26 illegal immigration,” CNBC.com (Feb. 5, 2017), https://tinyurl.com/TaylorCNBC.

27

2 The White House Office of the Press Secretary, “Executive Order: Enhancing the Public Safety on the Interior of the United States,” Whitehouse.gov (January 25, 2017),

28 § 9(a), attached as Ex. A to Decl. of Steven Hong.

4
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1 Santa Clara v. Donald J. Trump; City and Cty. of San Francisco v. Trump, 2017 WL

2 1459081 (N.D. Cal. Apr. 25, 2017), appeal filed No. 17-16886 (9th Cir. Sept. 18, 2017).

3

On July 25, 2017, Defendant Sessions launched another effort to tie federal funds

4 for states and localities to their participation in federal civil immigration enforcement.

5 He announced in a press release three new conditions that the Department of Justice

6 would attempt to impose on funding for the Edward Byrne Memorial Justice Assistance

7 Grants (“Byrne JAG”) program. Specifically, he announced that, “[f]rom now on, the

8 Department will only provide Byrne JAG grants to cities and states that [1] comply with

9 federal law, [2] allow federal immigration access to detention facilities, and [3] provide

10 48 hours notice before they release an illegal alien wanted by federal authorities.” 3 In

11 announcing these conditions, DOJ asserted as a justification—without citing empirical or

12 any other support—that the conditions are “part of accomplishing the Department of

13 Justice’s top priority of reducing violent crime.” Id. Defendants did not identify any

14 evidence that supports their implied premise that undocumented immigrants commit

15 violent crimes at higher rates than the general population, or that cities with so-called

16 “sanctuary” policies have more violent crime on average than those that do not. Nor

17 could they, as prevailing research demonstrates there is either no relationship between a

18 city’s so-called “sanctuary” policies and that city’s crime rate, or an inverse relationship,4

19 despite Defendant Sessions’ claims to the contrary in a speech delivered earlier this

20 summer to law enforcement officials.5

21

22 3 Department of Justice Office of Public Affairs, “Attorney General Sessions Announces Immigration Compliance Requirements for Edward Byrne Memorial Justice Assistance
23 Grant Programs,” Justice.gov (July 25, 2017), attached as Ex. B to Hong Decl.

24 4 Nick Roll, Correcting Jeff Sessions, INSIDE HIGHER ED (July 17, 2017), attached as Ex.

25

C to Hong Decl.; Loren Collingwood, Benjamin Gonzalez-O'Brien and Stephen ElKhatib, Sanctuary cities do not experience an increase in crime, THE WASHINGTON POST

26 (Oct. 3, 2016), attached as Ex. D to Hong Decl.

27 5 Hong Decl. Ex. C.

28

5
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1

A federal court recently issued a preliminary injunction barring DOJ from

2 enforcing the new immigration-related conditions on Byrne JAG funding, reasoning that

3 it is likely that these conditions exceed DOJ’s statutory authority. See City of Chicago v.

4 Sessions, 2017 WL 4081821 (N.D. Ill. Sept. 15, 2017), appeal filed.6

5

DOJ now seeks to transform the COPS grant into a tool for obtaining participation

6 by localities in federal civil immigration enforcement. In the FY 2017 application guide

7 for CHP grants, the COPS Office expanded the types of local law enforcement programs

8 that would receive additional consideration beyond those authorized by the COPS grant

9 statute. See 34 U.S.C. § 10381(b), (c). For FY 2017, additional consideration is provided

10 for grant-supported programs whose “focus area” is “Illegal Immigration” (the

11 “Immigration Enforcement Focus Consideration”).7

12

13 6 In addition to challenging DOJ’s creation of new considerations in the COPS grant

14 award process, Los Angeles in this lawsuit challenges the new immigration-related

15

conditions on receipt of funding under the Byrne JAG program. The City does not seek a preliminary injunction with respect to the Byrne JAG conditions because the Chicago

16 injunction prevents DOJ from enforcing those conditions nationwide.

17 7 Additional consideration is also provided for grant-supported programs focusing on

18

“Violent Crime” or “Homeland Security.” See Larracas Decl. Ex. B at 27. Unlike “Illegal Immigration,” these focus areas correspond with authorized statutory purposes

19 for COPS funding. See 34 U.S.C. § 10381(b)(5), (8), (9), (11), (12), (15) (crime control); 20 id. § 10381(b)(4) (homeland security).
The COPS Office also included the authorized preferential considerations for 21 “applicants in states with certain anti-human trafficking laws that treat minors engaged in

22 commercial sex as victims (referred to as ‘safe harbor’ laws) and permit individuals to

23

vacate arrest or prosecution records for non-violent offenses as a result of being trafficked.” Larracas Decl. Ex. B at 27; see 34 U.S.C. § 10381(c)(2)-(3). It indicated that

24 applicants will receive additional consideration for hiring a military veteran. Larracas

25

Decl. Ex. B at 39; see 34 U.S.C. § 10381(b)(2) (establishing “prioritizing the hiring and training of veterans” as an authorized purpose of COPS grants). The COPS office also

26 indicated that applicants that “experienced an unanticipated catastrophic event” might be

27

given additional consideration. Larracas Decl. Ex. B at 27-28, 50; see 34 U.S.C. § 10381(b)(4), (17) (programs to counter mass shootings and terrorism); cf. 42 U.S.C.

28

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1

The COPS Office separately stated that further “additional consideration” might be

2 given to “applicants that partner with federal law enforcement to address illegal

3 immigration” (the “Immigration Enforcement Partnership Consideration”). See Larracas

4 Decl. Ex. B at 27-28. Nearly two months after CHP grant applications were due—and

5 after briefing was complete on the preliminary injunction motion in the Chicago

6 challenge to the Byrne JAG conditions—Los Angeles and other localities received an

7 email from the COPS Office informing them that DOJ had adopted an Immigration

8 Enforcement Partnership Consideration. See Email from COPS Office (Sept. 7, 2017),

9 attached as Ex. A to Larracas Decl. To qualify, a COPS applicant would have to certify

10 that it has implemented, or would implement, versions of the same civil immigration-

11 related requirements DOJ had recently attempted to impose on the Byrne JAG Program.

12 Id.

13

Specifically, the COPS Office offered this additional consideration to an applicant

14 that certifies compliance with both an “Access Requirement” and a “Notice

15 Requirement.” See Certification of Illegal Immigration Cooperation, attached as

16 Attachment 1 to Ex. A to Larracas Decl. Under the Access Requirement, the applicant

17 must have in place or implement “rules, regulations, policies, and/or practices that ensure

18 that U.S. Department of Homeland Security (‘DHS’) personnel have access to any of the

19 governing body’s correctional or detention facilities in order to meet with an alien (or an

20 individual believed to be an alien) and inquire as to his or her right to be or to remain in

21 the United States.” Id. Under the Notice Requirement, the applicant must have in place

22 or implement “rules, regulations, policies, and/or practices that ensure that any of the

23 governing body’s correctional and detention facilities provide advance notice as early as

24 practicable (at least 48 hours, where possible) to DHS regarding the scheduled release

25 date and time of an alien in the jurisdiction’s custody when DHS requests such notice in

26

27 § 5141 (permitting modification of administrative conditions of federal assistance 28 programs in light of a “major disaster”).

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1 order to take custody of the alien. This certification does not require holding an alien

2 beyond his or her scheduled time of release.” Id. Los Angeles was given until

3 September 19, 2017 to respond and make the necessary certification—less than two

4 weeks. Id.

5

On the same day that the e-mail was sent, DOJ explained in a statement that

6 jurisdictions would receive “additional points in the application scoring process [for

7 COPS grants] if their agencies cooperate with federal law enforcement to address illegal

8 immigration.” DOJ, Office of Public Affairs, Department of Justice Announces Priority

9 Consideration Criteria for COPS Office Grants (Sept. 7, 2017), attached as Ex. E to Hong

10 Decl. The statement included the following from Defendant Sessions: “[c]ities and

11 states that cooperate with federal law enforcement make all of us safer by helping remove

12 dangerous criminals from our communities,” and “jurisdictions with these policies in

13 place should be acknowledged for their commitment to ending violent crime, including

14 violent crime stemming from illegal immigration.” Id. DOJ would thus “recognize

15 jurisdictions that commit to the rule of law by awarding additional points in the

16 application scoring process for COPS Office grants.” Id.; see also COPS Office:

17 Immigration Cooperation Certification Process Background, attached as Attachment 1 to

18 Ex. E to Hong Decl.

19

C. Consistent With The Statutory Purpose Of The COPS Program, Los

20

Angeles Uses Its Funding To Enhance Community Policing

21

Los Angeles applied for CHP grants in 2012 and 2016, and received the grants in

22 both years. Larracas Decl. ¶¶ 3, 10. In FY 2016, Los Angeles’ score for the CHP grant

23 was 150.67—the 14th highest score among the 1,110 applications. See COPS Office,

24 FY2016 COPS Hiring Program Applicant Rankings, attached as Ex. F to Larracas Decl.

25

Los Angeles received $3.125 million in CHP funding in FY 2016, which went

26 toward the hiring of 25 officers to improve community policing. Los Angeles explained

27 in its 2016 application that the funds would help expand the “Summer Night Lights” and

28 “Fall Friday Nights” programs, in which parks around Los Angeles extend their operating

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1 hours and host free events for the community, and including as a vital component the

2 presence of LAPD officers to ensure the safety of residents and make the program

3 successful. See Los Angeles 2016 Application, attached as Ex. D to Larracas Decl. In

4 addition, Los Angeles used funds to expand training programs in community policing.

5 Id.

6

The City’s use of CHP funds promotes Congress’ core objectives in enacting the

7 COPS program. Those funds are needed to help ensure the hiring and rehiring of officers

8 who can dedicate their time to community policing, as well as ensuring those officers are

9 equipped with the proper training programs.

10

In its FY 2017 application, Los Angeles applied for $3.125 million in CHP funds

11 to support hiring officers for its Community Safety Partnership (“CSP”) Program. The

12 CSP Program operates in selected public housing developments located throughout the

13 Los Angeles Area. Officers implement programs for at-risk youth, ensure safe passage

14 on school routes, and build relationships in the communities through neighborhood watch

15 groups, quality of life committees, and citizen-police enforcement teams. Thus, in its

16 application, Los Angeles identified “Building Trust and Respect” as the focus of its

17 grant-supported program. Los Angeles 2017 CHP Application, attached as Ex. G to

18 Larracas Decl.; see 34 U.S.C. § 10381(b)(1), (2), (5), (11). DOJ is not providing

19 additional consideration for programs within this focus area.

20

D. Los Angeles’ Policies Against Engaging In Federal Civil Immigration

21

Enforcement

22

For nearly forty years, Los Angeles has implemented “policies and practices

23 designed to promote the public safety of all Los Angeles residents by engendering

24 cooperation and trust between members of the City’s many immigrant communities and

25 law enforcement.” Decl. of Michael Hyams ¶ 4. As the COPS Office has long

26 recognized, “uncertainty and concern about local law enforcement’s role in immigration

27 enforcement causes many immigrants to fear that any contact with officers could

28 potentially bring about their deportation and/or that of undocumented family members.”

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1 See Enhancing Community Policing With Immigrant Populations: Recommendations

2 from a Roundtable Meeting of Immigrant Advocates and Law Enforcement Leaders,

3 COPS Office (2010 summary of Aug. 2008 roundtable), attached as Ex. G to Hong Decl.

4 at 16. To avoid sowing distrust, the Los Angeles Police Department has maintained a

5 policy that “restricts an officer from initiating a police action with the objective of

6 discovering a person’s immigration status, and also prohibits arrests based solely on civil

7 immigration status.” Hyams Decl. ¶ 3 (citing Special Order 40).

8

Accordingly, Los Angeles did not identify “Illegal Immigration” as a focus area of

9 its grant. See Larracas Decl. Ex. G. The City therefore will not receive preferential

10 treatment under the Immigration Enforcement Focus Consideration. The City’s

11 application will therefore be less competitive with other jurisdictions that are willing to

12 divert COPS funding to participation in federal civil immigration enforcement.

13

Los Angeles also did not certify compliance with the Access and Notice

14 Requirements, and so will not receive preferential treatment under the Immigration

15 Enforcement Partnership Consideration. Larracas Decl. ¶ 6. In the 12 days the City was

16 allotted to decide whether to certify compliance, Los Angeles was unable to determine

17 whether DOJ would consider its detention facility practices to comply with these

18 Requirements, or whether making a certification to “partnership” in immigration

19 enforcement would erode the community trust Los Angeles has long fostered. Hyams

20 Decl. ¶ 14. The City’s application will therefore be less competitive with other

21 jurisdictions willing to certify their “partnership” in civil immigration enforcement.

22

Thus, as a result of DOJ’s creation of the Immigration Enforcement Focus

23 Consideration and the Immigration Enforcement Partnership Consideration (together, the

24 “Challenged Considerations”), the deck is now stacked against the City of Los Angeles in

25 its competition for federal community policing funds. In awarding extra “points” to

26 localities that are willing to “focus” on “Illegal Immigration,” and more “points” to those

27 that are able and willing to certify to DOJ’s specified forms of “partnership” with federal

28 civil immigration enforcement efforts, DOJ is necessarily disfavoring jurisdictions, like

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1 Los Angeles, that are unwilling to divert community policing funds to federal civil

2 immigration enforcement, or compromise public safety and community trust in law

3 enforcement. The City has therefore brought this lawsuit, and seeks a preliminary

4 injunction, to level the playing field and allow it to compete for federal funds without

5 being disadvantaged by unlawful “considerations.”

6 III. ARGUMENT

7

To obtain a preliminary injunction, the plaintiff must establish that it “is likely to

8 succeed on the merits, that [it] is likely to suffer irreparable harm in the absence of

9 preliminary relief, that the balance of equities tips in [its] favor, and that an injunction is

10 in the public interest.” Alliance for the Wild Rockies v. Cottrell, 632 F.3d 1127, 1131

11 (9th Cir. 2011) (quoting Winter v. Natural Resources Defense Council, 555 U.S. 7, 20

12 (2008)). Because Los Angeles meets all four of these elements, the Court should

13 preliminarily enjoin Defendants from making COPS award determinations using the

14 Challenged Considerations.

15

A. Los Angeles Is Likely To Succeed On the Merits.

16

1. The Challenged Considerations Are Ultra Vires and Violate the

17

Separation of Powers.

18

An agency “has no power to act . . . unless and until Congress confers power upon

19 it.” Louisiana Pub. Serv. Comm’n v. FCC, 476 U.S. 355, 374 (1986). When agencies

20 “act improperly . . . what they do is ultra vires.” City of Arlington v. FCC, 133 S. Ct.

21 1863, 1869 (2013). DOJ lacks authority to change the terms of the COPS grant program

22 as enacted by Congress by imposing additional considerations that disfavor jurisdictions

23 that are unwilling or unable to use funding intended for community policing on civil

24 immigration enforcement, or to certify compliance with specified forms of “partnership”

25 with federal civil immigration authorities. DOJ’s ultra vires imposition of these

26 additional considerations is “an improper attempt to wield Congress’s exclusive spending

27 power and is a violation of the Constitution’s separation of powers principles.” Santa

28 Clara, 2017 WL 1459081 at *22.

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1

Congress created the COPS program to bolster local community policing efforts by

2 putting more officers on the street—not as a tool for the Executive Branch to advance

3 unrelated policy agendas. Thus, Congress enumerated twenty-two express purposes “for

4 which grants . . . may be made.” See 34 U.S.C. § 10381(b)(1)-(22). And Congress

5 further identified three grounds on which “the Attorney General may give preferential

6 consideration.” Id. § 10381(c). The Challenged Considerations cannot be reconciled

7 with these and additional critical features of the statutory scheme.

8

First, Congress authorized DOJ to give “preferential consideration” to COPS grant

9 applicants in three—and only three—circumstances. 34 U.S.C. § 10381(c)(1)-(3). The

10 agency is not permitted to invent its own separate grounds to give an applicant favorable

11 treatment; otherwise the statutory provision allowing three limited grounds for such

12 preference would be wholly superfluous. See Chubb Custom Ins. Co. v. Space

13 Systems/Loral, Inc., 710 F.3d 946, 966 (9th Cir. 2013) (“It is a well-established rule of

14 statutory construction that courts should not interpret statutes in a way that renders a

15 provision superfluous.”); cf. Chicago, 2017 WL 4081821 at *5 (DOJ’s view that it can

16 impose conditions on Byrne JAG grants “would render superfluous the explicit statutory

17 grant of authority to impose conditions” on certain other grants). When Congress says

18 “the Attorney General may give preferential consideration” on three specified grounds, it

19 necessarily follows that he may not give preferential consideration on other grounds.8

20

Second, the Challenged Considerations are not only excluded from the three

21 authorized grounds for preference—they are not even within the twenty-two enumerated

22 purposes of the COPS program. See 34 U.S.C. § 10381(b)(1)-(22). Congress did not

23 include using state and local resources to combat “Illegal Immigration” as an authorized

24

25 8 DOJ obviously cannot circumvent this limitation by using the phrase “additional

26 consideration” instead of the statutory phrase “preferential consideration.” Indeed, DOJ

27

itself treats these phrases as interchangeable. See Larracas Decl. Ex. B at 27 (treating the statutory ground for preferential consideration based on anti-trafficking laws as a basis

28 for “[a]dditional consideration”).

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1 purpose of COPS funding at all, let alone as a “focus area” warranting preferential

2 treatment. Neither does a single one of the twenty-two authorized purposes have

3 anything to do with state and local governments’ willingness to assist in federal civil

4 immigration investigations and enforcement. Participation in civil immigration

5 enforcement is thus not just an invalid ground for additional consideration, but a

6 diversion of funds Congress allocated for community policing.

7

Third, Congress authorized the Attorney General to “prescribe by regulation or

8 guidelines” only the “form” of a COPS application and the “information” it must contain.

9 34 U.S.C. § 10382(b); see also id. § 10381(f) (referring to “application[s]” “which meet[]

10 the requirements prescribed by the Attorney General”). In the context of the Byrne JAG

11 program, a district court recently recognized that the Attorney General’s “limited express

12 authority” to “determine the ‘form’ of the application” “indicates an express reservation”

13 by Congress of any broader authority. Chicago, 2017 WL 4081821, at *4. So too here:

14 Congress’ decision to authorize the Attorney General to “prescribe” the form and content

15 of a COPS application renders conspicuous the absence of any congressional delegation

16 of authority for an agency to invent new grounds for preferential treatment.

17

Fourth, DOJ has recently asked Congress—as part of the COPS Office’s

18 appropriations request—to “authorize DHS and DOJ to condition certain grants and

19 cooperative agreements on requirements that recipients agree to cooperate with specific

20 Federal immigration enforcement activities and requests.” U.S. DOJ, FY 2018

21 Congressional Justification, Office of Community Oriented Policing Services (Apr. 23,

22 2017), attached as Ex. F to Hong Decl. at 23-26. DOJ thus tacitly concedes that it

23 presently lacks authorization to use grant programs to compel or induce participation in

24 federal civil immigration enforcement.

25

Fifth, the Immigration Enforcement Focus Consideration would undermine

26 Congress’ carefully balanced framework for federal-state immigration cooperation.

27 Congress has been careful not to give blanket authorization for state and local officers to

28 engage in civil immigration enforcement. “Federal law specifies limited circumstances in

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1 which state officers may perform the functions of an immigration officer.” Arizona v.

2 United States, 132 S. Ct. 2492, 2506 (2012) (emphasis added). Such cooperation requires

3 a “287(g)” agreement, under which state and local officers act “subject to the direction

4 and supervision of the Attorney General.” 8 U.S.C. § 1357(g)(3). DOJ’s attempt to

5 disadvantage those jurisdictions that do not focus on the generic category “illegal

6 immigration” ignores Congress’ reason for imposing this limitation in Section 287(g):

7 “[t]here are significant complexities involved in enforcing federal immigration law.”

8 Arizona, 132 S. Ct. at 2506. By stacking the deck for awarding CHP funds in favor of

9 those jurisdictions willing to “focus” their policing efforts on “illegal immigration”

10 generally, without the protections and limitations Congress established, DOJ is disrupting

11 a carefully balanced statutory framework.

12

Critically, moreover, when state and local officers are authorized to act as

13 immigration officers pursuant to a 287(g) agreement, Congress required this participation

14 to be “at the expense of the State or political subdivision.” 8 U.S.C. § 1357(g)(1)

15 (emphasis added). DOJ has admitted that it intends to use the COPS program to fund

16 “287(g) partnerships.” Hong Decl. Ex. F at 31. In other words, DOJ—without any

17 authorization in the COPS statute—would override Section 287(g) and fund state and

18 local participation in federal immigration enforcement despite Congress’ express

19 provision to the contrary.

20

Sixth, the Immigration Enforcement Partnership Consideration impermissibly

21 seeks to direct and control state and local law enforcement agencies in their operation of

22 detention facilities. Congress provided that DOJ’s grant-making authority may not be

23 “construed to authorize any [federal agency or officer] to exercise any direction,

24 supervision, or control over any police force or any other criminal justice agency of any

25 State or any political subdivision thereof.” 34 U.S.C. § 10228(a). The Immigration

26 Enforcement Partnership Consideration does just that, using the threat of disfavored

27 treatment to induce police forces to alter their operations so as to arrange for access to

28 detention facilities and notification of release.

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1

Seventh, if Congress had truly meant to authorize DOJ to disfavor state and local

2 governments that do not agree to participate in federal civil immigration enforcement, it

3 would have had to make such intention particularly clear. When federalism values are at

4 stake, the Supreme Court demands a “clear statement” from Congress, which “assures

5 that the legislature has in fact faced, and intended to bring into issue, the critical matters

6 involved.” Gregory v. Ashcroft, 501 U.S. 452, 461 (1991) (emphasis added). Applying

7 this clear-statement rule in the context of federal grants, courts have required

8 “unambiguous statutory expression of congressional intent to condition the States’ receipt

9 of federal funds in a particular manner.” Com. Va., Dep’t of Educ. v. Riley, 106 F.3d 559,

10 566 (4th Cir. 1997) (en banc) (adopting the dissenting panel opinion of Luttig, J.),

11 superseded by statute. Congress would have spoken clearly if it had meant to authorize

12 DOJ to disadvantage jurisdictions in competition for federal funds because they use

13 community policing resources for their intended purpose, rather than participation in

14 enforcement of the federal civil immigration laws.

15

Far from doing so, numerous features of the text and structure of the statute make

16 clear that Congress did not permit the Attorney General to arrogate this power to himself.

17 Cities like Los Angeles may not be put to the choice of agreeing to participate in federal

18 civil immigration enforcement, or jeopardizing their ability to compete for funds

19 Congress made available to support community policing.

20

2. The Challenged Considerations Violate the Spending Clause.

21

Even if Congress had delegated its Spending Clause authority to adopt the

22 Challenged Considerations, Congress would still have had to comply with several

23 important restrictions in exercising that constitutional authority. It is well-settled that

24 conditions on federal grants must meet certain requirements. See S. Dakota v. Dole, 483

25 U.S. 203, 207-09 (1987). Although DOJ has created what it calls “Additional

26 Considerations” that benefit some applicants, doing so necessarily disadvantages other

27 applicants that are unable or unwilling to comply. In at least some cases inability to

28

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1 receive this additional consideration will result in an unsuccessful application; otherwise

2 the considerations would serve no purpose. A condition by any other name is still a

3 condition, and Congress may not make it more difficult for a state or local government to

4 access federal funds for reasons that do not pass constitutional muster.

5

Here there are at least two such flaws in the Challenged Considerations: they are

6 not sufficiently related to the purposes of the COPS statute, and they are not

7 unambiguous. Pennhurst State Sch. & Hosp. v. Halderman, 451 U.S. 1, 17 (1981); Dole,

8 483 U.S. at 207-09.

9

a) The Challenged Considerations Are Not Related To

10

Congress’ Purpose In Creating The COPS Grant Program.

11

The Challenged Considerations violate a fundamental restriction on the exercise of

12 the Spending Clause authority: “the conditions on receipt of federal funds must be

13 reasonably related to the articulated goal.” Nevada v. Skinner, 884 F.2d 445, 447 (9th

14 Cir. 1989). Congress established the COPS grant program to fund States, “units of local

15 government,” and other groups, for use by them in twenty-two specific purposes, ranging

16 from providing “specialized training to law enforcement officers to . . . recognize

17 individuals who have a mental illness” to establishing “school-based partnerships

18 between local law enforcement agencies and local school systems.” 34 U.S.C.

19 § 10381(b)(1)-(22). As the COPS Office recently explained, its basic purpose is to

20 support local law enforcement agencies in “advancing public safety through the

21 implementation of community policing strategies,” which “entails developing

22 partnerships between law enforcement agencies and the communities they serve.” Hong

23 Decl. Ex. F at 4.

24

Neither the COPS authorizing statute nor the COPS Office’s own view of its

25 mission mentions state and local participation in federal civil immigration investigations

26 and enforcement. The CHP grant in particular is concerned with hiring police officers.

27 See, e.g., Larracas Decl. Ex. B. at 7. The Notice and Access Requirements DOJ seeks to

28 impose to qualify for the Immigration Enforcement Partnership Consideration have

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1 nothing at all to do with hiring local law enforcement officers. Requiring States and local

2 governments to open their facilities to federal civil immigration authorities, or to respond

3 to any notification request those authorities make, is not related to the purpose of the

4 grant.

5

The Immigration Enforcement Focus Consideration is likewise unmoored from the

6 statutory purposes of the grant. Congress identified a long list of twenty-two authorized

7 purposes of COPS funds, making the omission of immigration enforcement especially

8 conspicuous. That omission may well reflect the view, recognized by the COPS Office

9 itself, that far from being a component of community policing, state and local

10 immigration enforcement often sows distrust between communities and police. See Hong

11 Decl. Ex. G. at 16. But whatever Congress’ reason, the point remains that it created a

12 program having nothing to do with civil immigration enforcement. DOJ cannot

13 constitutionally penalize applicants for community policing grants because they intend to

14 fulfill their responsibilities to their local communities to further public safety and well-

15 being and are unwilling to participate in civil immigration enforcement, a non-germane

16 agenda and one that is the responsibility of the federal government.

17

b) The Challenged Considerations Do Not Provide The Clear

18

Notice A Federal Funding Applicant Must Be Given.

19

Cities “cannot knowingly accept conditions of which they are ‘unaware’ or which

20 they are ‘unable to ascertain.’” Arlington Cent. Sch. Dist. Bd. of Educ. v. Murphy, 548

21 U.S. 291, 296 (2006). Congress must therefore state “unambiguously” the conditions

22 attached to federal funds so as to “furnish clear notice” to recipients of what is required of

23 them. Id.; see also Dole, 483 U.S. at 207. If a local official would not “clearly

24 understand” the obligations imposed by the condition, it is unconstitutional. Arlington,

25 548 U.S. at 296.

26

In this case, Congress did not adopt either of the Challenged Considerations, let

27 alone an unambiguous version of those considerations. But, even if the clear notice

28

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1 requirement could be satisfied by an agency creating the condition, DOJ has not crafted

2 considerations that Los Angeles could “clearly understand.”

3

1. The Immigration Enforcement Focus Consideration is fatally ambiguous. The

4 only description of it comes in the COPS Office’s appropriations request, which was

5 from April 2017, Hong Decl. Ex. F, and not issued to CHP grant applicants or included in

6 the Application Guide. Besides that document, DOJ and its COPS Office have offered no

7 guidance on what activities would come within the “Illegal Immigration” focus area.

8

This vagueness is especially problematic in light of the well-recognized

9 complexities of federal immigration law, under which a host of statutory provisions can

10 form the basis for removal, subject to a maze of possible grounds for cancelling or

11 withholding removal, adjusting status, or according asylum. See Arizona, 132 S. Ct. at

12 2506 (noting the “significant complexities involved in enforcing federal immigration law,

13 including the determination whether a person is removable”). Congress created a

14 detailed regime for states and localities that wish to have their officers perform the

15 functions of a federal immigration officer, which must be pursuant to an agreement that

16 “shall contain,” inter alia, “a written certification” of adequate training of the particular

17 officers regarding enforcement of federal immigration laws. 8 U.S.C. § 1357(g)(2). It is

18 not clear whether DOJ means a “focus” on “Illegal Immigration” to take the form of a

19 287(g) agreement, or whether it has in mind some other, extra-statutory role it wishes

20 local law enforcement to play in relation to immigration enforcement. Whatever DOJ

21 means, the Constitution requires more clarity than general references to “illegal

22 immigration.”

23

2. The Immigration Enforcement Partnership Consideration is similarly infirm.

24 To avoid being disfavored in the grant award process, a locality must certify compliance

25 with both the Access Requirement and the Notice Requirement. Neither is sufficiently

26 clear.

27

The Access Requirement demands that a locality have in place “rules, regulations,

28 policies, and/or practices that ensure that [DHS] personnel have access to any of the

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1 governing body’s correctional or detention facilities in order to meet with an alien (or an

2 individual believed to be an alien) and inquire as to his or her right to be or to remain in

3 the United States.” Larracas Decl. Ex. A, Attachment 1. Los Angeles does not prevent

4 DHS access to its detention facilities, but the City does comply with state law by

5 informing the detainee of the request, and it does not facilitate interviews that the

6 detainee has declined. Hyams Decl. ¶ 13. Los Angeles cannot determine whether DOJ

7 would be satisfied with this access, or whether the requirement is meant to prevent Los

8 Angeles from providing individuals the required information about the interview request

9 under state law, or to require the City to facilitate meetings that have been declined by

10 individuals. Id. ¶ 14. Moreover, the Access Requirement does not explain what is meant

11 by an “inquiry” triggering the obligation, and includes no reasonableness requirement or

12 limiting language to prevent DHS from consuming significant amounts of LAPD staff

13 time or tying up LAPD interview rooms in a manner that interferes with the safety,

14 efficiency, or legal time restraints that LAPD must consider in operating its jail facilities.

15

The Notice Requirement is also insufficiently clear. DOJ demands “notice as early

16 as practicable” regarding “the scheduled release date and time of an alien in the

17 jurisdiction’s custody when DHS requests such notice in order to take custody of the

18 alien.” Larracas Decl. Ex. A, Attachment 1. It is not clear what this would mean in the

19 context of short-term detention operations, like LAPD’s, in which “scheduled release” is

20 generally not a relevant concept. See Hyams Decl. ¶ 12. The Notice Requirement is

21 vague in terms of how, if at all, it is meant to be applied in such circumstances.

22

These ambiguities made it impossible for Los Angeles to understand what strings

23 DOJ meant to attach to the CHP funding and whether the City could, as a legal matter, or

24 should, as a policy matter consistent with its responsibilities over local law enforcement

25 and to promote public safety, agree to comply with the Challenged Considerations to

26 increase its chances to obtain CHP funding. See Hyams Decl. ¶ 14. These difficulties

27 were compounded by DOJ waiting until the eleventh hour to adopt the Immigration

28 Enforcement Partnership Consideration, leaving the City with less than 2 weeks to decide

19
CITY OF LOS ANGELES’ MEMORANDUM IN SUPPORT OF APPLICATION FOR PRELIMINARY INJUNCTION

Case 2:17-cv-07215-R-JC Document 7-1 Filed 09/29/17 Page 26 of 32 Page ID #:292

1 whether it could or should sign the certification. See Larracas Decl. Ex. A. This is not

2 the clear notice the Spending Clause demands.

3

3. The Challenged Considerations Are Invalid Under the

4

Administrative Procedure Act.

5

Agency actions are unlawful under the Administrative Procedure Act if they are

6 “arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with law.” 5

7 U.S.C. § 706(2)(A).9 Defendants’ imposition of the Challenged Considerations as part of

8 the 2017 CHP Application is not in accordance with law as set forth above. Moreover,

9 Defendants’ imposition of the Challenged Considerations cannot survive arbitrary-and-

10 capricious review, where the court “must consider whether the decision was based on a

11 consideration of the relevant factors and whether there has been a clear error of

12 judgment.” San Luis & Delta-Mendota Water Auth. v. Jewell, 747 F.3d 581, 601 (9th

13 Cir. 2014) (citation omitted); Az. Cattle Growers’ Ass’n v. U.S. Fish & Wildlife, Bureau

14 of Land Mgmt., 273 F.3d 1229, 1236 (9th Cir. 2001) (“[W]e carefully review the record

15 to ensure that agency decisions are founded on a reasoned evaluation of the relevant

16 factors.” (citation omitted)).

17

The Challenged Considerations are arbitrary and capricious because DOJ adopted

18 them without a reasoned basis and provided no support for DOJ’s attempt to link

19 participation in, and facilitation of, federal civil immigration investigations by state and

20 local officials to Congress’ goals in establishing and designing the COPS grant program

21 to provide funding for specified state and local community policing purposes. DOJ has

22 asserted that “[c]ities and states that cooperate with federal law enforcement make all of

23 us safer by helping remove dangerous criminals from our communities,” including by

24

25

9 The imposition of the Challenged Considerations is a final agency action. The Challenged Considerations “mark the consummation of the agency’s decision-making

26 process” and “give[ ] rise to direct and appreciable legal consequences”— Los Angeles’

27

inability to compete on an equal playing field for CHP grants. U.S. Army Corps of Eng’rs v. Hawkes Co., 136 S. Ct. 1807, 1813-14 (2016) (internal quotation marks

28 omitted)).

20
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Case 2:17-cv-07215-R-JC Document 7-1 Filed 09/29/17 Page 27 of 32 Page ID #:293

1 ending “violent crime stemming from illegal immigration.” See Hong Decl. Ex. E. But

2 no evidence is cited to support the implied premise that undocumented immigrants or

3 other non-citizens commit violent crimes at higher rates than the general population, or to

4 indicate that the investigations of federal civil immigration violations facilitated by the

5 Challenged Considerations are focused on individuals involved in violent crime. Nor do

6 any of those sources suggest that state or local participation in federal civil immigration

7 investigations would decrease violent crime. Ironically, the real impact of DOJ’s new

8 policy is the opposite of its expressed intent—depriving states and cities of resources to

9 address public safety needs by hiring new law enforcement officers.

10

The Attorney General, in a speech unrelated to the Challenged Considerations,

11 relied on a study that does not support his claim that there is a relationship between so-

12 called “sanctuary” policies and violent crime, but rather indicates that there is no such

13 relationship; other studies, meanwhile, show an inverse relationship. See Hong Decl. Ex.

14 C.; see also Contrary to Trump’s Claims, Immigrants Are Less Likely to Commit Crimes,

15 N.Y. Times (Jan. 26, 2017), attached as Ex. H to Hong Decl. There is no connection

16 between that study’s conclusions and imposing the Challenged Considerations as a means

17 of advancing local community policing. See Motor Vehicle Mfrs. Ass’n of U.S., Inc. v.

18 State Farm Mut. Auto Ins. Co., 463 U.S. 29, 43 (1983) (“[A]n agency rule would be

19 arbitrary and capricious if the agency . . . offered an explanation for its decision that runs

20 counter to the evidence before the agency.”). Absent a rational connection between the

21 Challenged Considerations and Congress’ goal in establishing the COPS grants, one that

22 is stated and supported by the agency, the Considerations are arbitrary and capricious.

23

B. Los Angeles Will Suffer Irreparable Injury Absent An Injunction From

24

This Court.

25

Los Angeles will suffer immediate and irreparable harm if DOJ considers the

26 Challenged Considerations in making funding decisions for the FY 2017 CHP grant

27 cycle. Unless enjoined, the Challenged Considerations will be used to put Los Angeles at

28 a disadvantage in the competition for federal funds. Jurisdictions that agree to participate

21
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Case 2:17-cv-07215-R-JC Document 7-1 Filed 09/29/17 Page 28 of 32 Page ID #:294

1 in federal civil immigration investigations and enforcement efforts will be favored in the

2 application process; those that are not able or willing will be disfavored, losing valuable

3 “points” in a competitive process. Supra pp. 6-8, 10. “A rule putting plaintiffs at a

4 competitive disadvantage constitutes irreparable harm.” Int’l Franchise Ass’n, Inc. v.

5 City of Seattle, 803 F.3d 389, 411 (9th Cir. 2015); see also Ne. Fla. Ch. of Assoc. Gen.

6 Contractors of Am. v. City of Jacksonville, 508 U.S. 656, 666 (1993) (“[T]he ‘injury in

7 fact’ is the inability to compete on an equal footing in the bidding process, not the loss of

8 a contract.”).10

9

Los Angeles is also irreparably harmed by the coercive choice DOJ put the City to.

10 Morales v. Trans World Airlines, Inc., 504 U.S. 374, 381 (1992). One option the agency

11 presented to the City was to sacrifice its “sovereign interests and public policies.”

12 Kansas v. United States, 249 F.3d 1213, 1227 (10th Cir. 2001). By agreeing to

13 participate in federal civil immigration efforts in order to compete on equal footing for

14 community policing resources, Los Angeles would have been required to compromise its

15 longstanding policy decision that enmeshing LAPD in civil immigration enforcement

16 would erode community trust and undermine public safety. See Hyams Decl. ¶¶ 3-5.

17

The other option, and the path Los Angeles ultimately followed, was to compete

18 for COPS funding at a disadvantage. The loss of Los Angeles’ ability to compete on fair

19 and lawful terms threatens the City’s concrete public safety interests. If Los Angeles is

20 denied a grant because DOJ has disfavored it for being unwilling to participate in civil

21 immigration enforcement, the result will not just be a monetary loss but a loss of funding

22 to hire police officers. Specifically, Los Angeles plans to use grant funds to hire officers

23 in support of its Community Safety Partnership Program, which needs these resources to

24

25 10 Such competitive injury has also “often been recognized as grounds for standing.”

26 Bullfrog Films, Inc. v. Wick, 847 F.2d 502, 507 (9th Cir. 1988) (listing cases); see also

27

Shell Offshore, Inc. v. Greenpeace, Inc., 709 F.3d 1281, 1286-87 (9th Cir. 2013) (facts demonstrating a likelihood of success on the merits and irreparable harm “necessarily

28 establish” standing to seek injunctive relief).

22
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Case 2:17-cv-07215-R-JC Document 7-1 Filed 09/29/17 Page 29 of 32 Page ID #:295

1 create programs for at-risk youth, escort children safely to school, and engage in other

2 critical community policework. Larracas Decl. Ex. G. Lost opportunities to strengthen

3 community safety partnerships through a fully-funded program are plainly irreparable

4 harm.

5

By forcing the City to make this “unreasonable choice,” the Challenged

6 Considerations also “result[] in a constitutional injury” sufficient to establish irreparable

7 harm. Santa Clara, 2017 WL 1459081, at *27–28; Am. Trucking Ass’ns, Inc. v. City of

8 Los Angeles, 559 F.3d 1046, 1058 (9th Cir. 2009); Chicago, 2017 WL 4081821 at *13.

9

Immediate intervention is warranted here, as DOJ intends to make award

10 determinations as early as October 30. Hong Decl. ¶ 10. Once DOJ makes COPS grant

11 awards, it would be difficult (if not impossible) to unwind those awards and reallocate

12 funds. If DOJ is not prevented from issuing awards that are skewed by reliance on

13 unlawful considerations, it would be impossible to compensate Los Angeles for (1) the

14 loss of opportunity to fairly compete for funding, (2) the constitutional injury it suffers

15 from being put to the impossible choice of either acceding to the violation of its

16 constitutional rights or risking the loss of funds supporting the hiring of police officers,

17 and (3) the lack of a fully funded Community Safety Partnership Program, if DOJ’s

18 decision to disfavor Los Angeles proves dispositive.

19

C. The Balance Of Equities And The Public Interest Weigh Heavily In

20

Favor Of The Requested Injunction.

21

This Court must “balance the competing claims of injury” made by Los Angeles

22 and Defendants in determining whether to grant the requested relief. Winter, 555 U.S. at

23 24. In addition, the Court should “pay particular regard for the public consequences” of

24 issuing an injunction. Id. These two factors merge when the Federal Government is a

25 party. Nken v. Holder, 556 U.S. 418, 435 (2009). Here, they both weigh strongly in

26 favor of granting preliminary injunctive relief.

27

The City of Los Angeles has a number of important interests at stake here. It has a

28 strong interest in protecting its sovereignty against unwarranted federal incursion and

23
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Case 2:17-cv-07215-R-JC Document 7-1 Filed 09/29/17 Page 30 of 32 Page ID #:296

1 demands that the City forfeit its long-held views on the public safety dangers of

2 enmeshing local law enforcement in federal civil immigration enforcement. See Hyams

3 Decl. ¶¶ 3-5. The City has a strong related interest in avoiding the “coercive effects” of

4 “unconstitutional federal enforcement.” Santa Clara, 2017 WL 1459081, at *28. It also

5 has an interest in maintaining the trust and cooperation of Los Angeles residents to

6 effectively police local communities and promote public safety amongst some of the

7 City’s most vulnerable residents. The Challenged Considerations undermine each of

8 those interests by forcing the City to choose either to forgo them, or lose its ability to

9 effectively compete for COPS funding.

10

The Challenged Considerations also threaten the public’s interest in a well-

11 functioning City law enforcement apparatus—one built on trust with the community and

12 founded on the sound policy judgments of local law enforcement authorities, i.e., those

13 best-equipped to determine how to effectively protect their citizens and police crime in

14 local communities. And it is “always in the public’s interest” to issue an injunction in

15 order to “prevent the violation of a party’s constitutional rights” as would occur here if

16 DOJ is allowed to consider the Challenged Considerations in assessing Los Angeles’

17 application. Melendres v. Arpaio, 695 F.3d 990, 1002 (9th Cir. 2012); accord Gordon v.

18 Holder, 721 F.3d 638, 653 (D.C. Cir. 2013); Planned Parenthood Ass’n of Cincinnati,

19 Inc. v. City of Cincinnati, 822 F.2d 1390, 1399 (6th Cir. 1987) (“the public is certainly

20 interested in the prevention of enforcement of [laws] which may be unconstitutional”).

21

In contrast to the material hardship that will be imposed on Los Angeles and its

22 residents if the Challenged Considerations are imposed, Defendants will suffer little to no

23 harm whatsoever if the injunction is granted. The considerations are wholly unrelated to

24 the federal grant program here that is directed toward promoting community-oriented

25 policing, and they fall outside the statutory purposes specified by Congress in 34 U.S.C.

26 § 10381. Absent any reasoned basis for implementing the Challenged Considerations,

27 Defendants can hardly claim they will be harmed by any delay resulting from a

28 preliminary injunction. And even if DOJ could provide a sound justification for its new

24
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Case 2:17-cv-07215-R-JC Document 7-1 Filed 09/29/17 Page 31 of 32 Page ID #:297

1 policy, there is no reason why those Challenged Considerations must be implemented

2 now, since Defendants have successfully implemented the COPS grant program for years

3 without them. Indeed, the fact that DOJ adopted the Immigration Enforcement

4 Partnership Consideration at the last minute, well after issuing its Application Guide, is a

5 telling indication that Defendants lack a substantial interest in immediately implementing

6 this hastily revised grant process.

7

Compared to the immediate and substantial harm Los Angeles will face if the

8 Challenged Considerations are considered, Defendants can point to no immediate harm

9 that the Federal Government will suffer from a preliminary injunction. See Chicago,

10 2017 WL 4081821 at *14.

11 IV. CONCLUSION

12

For the foregoing reasons, the Court should issue a preliminary injunction to

13 prevent Defendants from making COPS award determinations by providing “additional

14 consideration” or any other preferential treatment to applicants that choose “Illegal

15 Immigration” as a focus area of the grant, or applicants that certify compliance with the

16 Notice and Access Requirements.

17

18

19

20

21

22

23

24

25

26

27

28

25
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Case 2:17-cv-07215-R-JC Document 7-1 Filed 09/29/17 Page 32 of 32 Page ID #:298

 </s> Case 2:17-cv-07215-R-JC Document 33 Filed 10/12/17 Page 1 of 32 Page ID #:791

1 CHAD A. READLER

Acting Assistant Attorney General
2 SANDRA R. BROWN

3 United States Attorney
JOHN R. TYLER

4 Assistant Director

W. SCOTT SIMPSON (Va. Bar #27487)
5 Senior Trial Counsel

6

Department of Justice, Room 7210 Civil Division, Federal Programs Branch

7 Post Office Box 883
Washington, D.C. 20044

8 Telephone: (202) 514-3495

Facsimile: (202) 616-8470

9 E-mail:

scott.simpson@usdoj.gov

10 COUNSEL FOR DEFENDANTS 11

12
UNITED STATES DISTRICT COURT
13

14

FOR THE CENTRAL DISTRICT OF CALIFORNIA

15 CITY OF LOS ANGELES,

16

Plaintiff,

v.
17

18 JEFFERSON B. SESSIONS, III, et al.,

Case No. 2:17-cv-07215-R-JCx
OPPOSITION TO PLAINTIFF’S MOTION FOR PRELIMINARY INJUNCTION

19

Defendants.

Date:

October 23, 2017

Time:

10:00 a.m.

20

21

22

23

24

25

26

27

28

Case 2:17-cv-07215-R-JC Document 33 Filed 10/12/17 Page 2 of 32 Page ID #:792

1

TABLE OF CONTENTS

2 TABLE OF AUTHORITIES .......................................................................................................... ii

3 INTRODUCTION .......................................................................................................................... 1

4 STATUTORY AND ADMINISTRATIVE BACKGROUND ....................................................... 3

5

I. COPS Hiring Program and the Office of Community Oriented

6

Policing Services.................................................................................................... 3

7

A. Governing Statutes and Creation of the Program ....................................... 3

8

B. Scoring Applications and Selecting Grantees ............................................. 5

9

C. Immigration-Related Factors ...................................................................... 7

10

II. Immigration and Nationality Act ............................................................................ 9

11

III. Los Angeles’s COPS Hiring Program Applications ............................................. 10

12 ARGUMENT ................................................................................................................................ 10

13

I. Plaintiff’s Claims Are Non-Justiciable ................................................................. 11

14

II. Plaintiff Cannot Establish a Likelihood of Success on the Merits........................ 12

15

A. Plaintiff Is Unlikely to Succeed on Its Ultra Vires and Separation of Powers Claims .................................................................... 12

16

B. Plaintiff Is Unlikely to Succeed on Its Spending Clause Claim ............... 18

17

1. The Immigration-Related Factors Are

18

Sufficiently Clear .......................................................................... 19

19

2. The Immigration-Related Factors Are Sufficiently Related to the Purposes of the COPS Hiring Program.................. 20

20

C. The Immigration-Related Factors Are Consistent

21

with the Administrative Procedure Act..................................................... 22

22

III. The City Fails to Establish Irreparable Harm Absent Preliminary Relief ................................................................................................. 23

23

IV. The Public Interest and the Balance of Equities Militate

24

Against an Injunction ............................................................................................ 24

25

V. Any Injunction Herein Should Be Limited to the Plaintiff ................................... 25

26 CONCLUSION ............................................................................................................................. 25

27

28

i

Case 2:17-cv-07215-R-JC Document 33 Filed 10/12/17 Page 3 of 32 Page ID #:793

1

TABLE OF AUTHORITIES

2 3 CONSTITUTION

4 U.S. Const. art. I, § 8, cl. 1 ....................................................................................................... 12, 18

5 U.S. Const. art. III, § 2, cl. 1 .......................................................................................................... 11

6

7 CASES

8 All. for the Wild Rockies v. Peña, 865 F.3d 1211 (9th Cir. 2017) ....................................... 2, 22, 23

9 Am. Trucking Ass’ns v. City of Los Angeles, 559 F.3d 1046 (9th Cir. 2009) ................................ 11
10 Ameron, Inc. v. U.S. Army Corps of Engineers, 809 F.2d 979 (3d Cir. 1986) .............................. 13 11
Arizona v. United States, 567 U.S. 387 (2012) .......................................................................... 9, 17
12
Barbour v. Washington Metro. Area Transit Auth., 374 F.3d 1161 (D.C. Cir. 2004) ................... 21
13
14 Barnhart v. Peabody Coal Co., 537 U.S. 149 (2003) .................................................................... 15

15 Bigelow v. Virginia, 421 U.S. 809 (1975)...................................................................................... 11

16 Campbell v. Feld Entm’t Inc., No. 12-CV-4233-LHK,

17

2013 WL 4510629 (N.D. Cal. Aug. 22, 2013) .......................................................................... 11

18 Clinton v. City of New York, 524 U.S. 417 (1998)......................................................................... 13

19 Gregory v. Ashcroft, 501 U.S. 452 (1991) ..................................................................................... 18

20 Int’l Franchise Ass’n v. City of Seattle, 803 F.3d 389 (9th Cir. 2015) .......................................... 23

21 Larson v. Domestic & Foreign Commerce Corp., 337 U.S. 682 (1949) ................................. 13, 14 22
Lopez v. Brewer, 680 F.3d 1068 (9th Cir. 2012)............................................................................ 10
23
Mayweathers v. Newland, 314 F.3d 1062 (9th Cir. 2002) ....................................................... 21, 22
24 25 Mazurek v. Armstrong, 520 U.S. 968 (1997) ................................................................................. 10
26 Miller ex rel. NLRB v. California Pac. Med. Ctr., 991 F.2d 536 (9th Cir. 1993).......................... 23

27 New Comm Wireless Services, Inc. v. SprintCom, Inc., 287 F.3d 1 (1st Cir. 2002) ...................... 12

28 New York v. United States, 505 U.S. 144 (1992) ........................................................................... 21

ii

Case 2:17-cv-07215-R-JC Document 33 Filed 10/12/17 Page 4 of 32 Page ID #:794

1

Nken v. Holder, 56 U.S. 418 (2009)............................................................................................... 24
2

3

Ne. Fla. Chapter of Associated Gen. Contractors of Am. v. City of Jacksonville, 508 U.S. 656 (1993) ........................................................................... 23, 24

4
Ore. Bureau of Labor & Indus. ex rel. Richardson v. U.S. W. Commc’ns, Inc.,
5 288 F.3d 414 (9th Cir. 2002) ..................................................................................................... 11

6 Pennhurst State Sch. & Hosp. v. Halderman, 465 U.S. 89 (1984) ................................................ 13
7 Price v. City of Stockton, 390 F.3d 1105 (9th Cir. 2004)............................................................... 25 8
S. Dakota v. Dole, 483 U.S. 203 (1987)............................................................................. 18, 19, 21
9
Sec’y of Labor v. Fitzsimmons, 805 F.2d 682 (7th Cir. 1986) ....................................................... 24
10
11 Skydive Arizona, Inc. v. Quattrocchi, 673 F.3d 1105 (9th Cir. 2012)............................................ 25

12 Sofinet v. INS, 188 F.3d 703 (7th Cir. 1999).................................................................................. 24

13 Steel Co. v. Citizens for a Better Env’t, 523 U.S. 83 (1998).......................................................... 11

14 Texas v. United States, 809 F.3d 134 (5th Cir. 2015) .................................................................... 25

15 Thomas v. Zachry, ___ F. Supp. 3d ___, No. 3:17-CV-0219-LRH-WGC,

16

2017 WL 2633692 (D. Nev. June 19, 2017).............................................................................. 12

17 U.S. Bank, N.A. v. SFR Invs. Pool 1, LLC, 124 F. Supp. 3d 1063 (D. Nev. 2015) ........................ 11

18 United States v. Dang, 488 F.3d 1135 (9th Cir. 2007) .................................................................. 14

19 United States v. Texas, 136 S. Ct. 2271 (2016).............................................................................. 25
20
Viceroy Gold Corp. v. Aubry, 75 F.3d 482 (9th Cir. 1996) ........................................................... 24
21
Ward v. Rock Against Racism, 491 U.S. 781 (1989) ..................................................................... 19
22 23 Whitmore v. Arkansas, 495 U.S. 149 (1990) ................................................................................. 11
24 Wilcox v. First Interstate Bank of Or., N.A., 815 F.2d 522 (9th Cir. 1987)................................... 24

25 Ne. Fla. Chapter of Associated Gen. Contractors of Am. v.
City of Jacksonville, 508 U.S. 656 (1993 ............................................................................ 23, 24
26
27 Winter v. Natural Resources Defense Council, 555 U.S. 7 (2008) .......................................... 11, 24

28

iii

Case 2:17-cv-07215-R-JC Document 33 Filed 10/12/17 Page 5 of 32 Page ID #:795
1 STATUTES
2 5 U.S.C. § 706(2)(A)...................................................................................................................... 22 3 8 U.S.C. §§ 1101-07......................................................................................................................... 9 4
8 U.S.C. § 1227(a) ........................................................................................................................... 9
5
8 U.S.C. § 1228 ................................................................................................................................ 9
6
8 U.S.C. § 1252c ...................................................................................................................... 10, 21
7
8 U.S.C. § 1324(c) ................................................................................................................... 10, 21
8 9 8 U.S.C. § 1357(a)(1) ....................................................................................................................... 9 10 8 U.S.C. § 1357(a)(2) ..................................................................................................................... 17
11 8 U.S.C. § 1357(g) ............................................................................................................. 10, 19, 21
12 8 U.S.C. § 1373(a) ....................................................................................................................... 7, 9
13 8 U.S.C. § 1373(b) ........................................................................................................................... 9 14
8 U.S.C. §§ 1101-07......................................................................................................................... 9
15
8 U.S.C. § 1357(a)(1) ....................................................................................................................... 9
16
34 U.S.C. § 10122(c)(2)(F) ............................................................................................................ 18
17 18 34 U.S.C. § 10228 .......................................................................................................................... 17 19 34 U.S.C. § 10261(a)(11)(B) ..................................................................................................... 5, 13
20 34 U.S.C. § 10381(b)(1)................................................................................................. 3, 13, 16, 21
21 34 U.S.C. § 10381(b)(2)............................................................................................. 3, 7, 13, 16, 21
22 34 U.S.C. § 10381(b)(3) - (22)......................................................................................................... 4 23 34 U.S.C. § 10381(b)(3)................................................................................................................... 4 24
34 U.S.C. § 10381(b)(10)............................................................................................................... 16
25
34 U.S.C. § 10381(b)(16)............................................................................................................... 16
26
34 U.S.C. § 10381(c) ..................................................................................................................... 14
27 28 34 U.S.C. § 10381(c)(1) ................................................................................................................. 15
iv

Case 2:17-cv-07215-R-JC Document 33 Filed 10/12/17 Page 6 of 32 Page ID #:796

1 34 U.S.C. § 10381(c)(2) ................................................................................................................. 15

2 34 U.S.C. § 10381(c)(3) ................................................................................................................. 15
3 34 U.S.C. § 10381(f) .................................................................................................................. 4, 13 4
34 U.S.C. § 10381(g) ................................................................................................................. 5, 14
5
34 U.S.C. § 10381(h) ................................................................................................................. 5, 13
6 7 34 U.S.C. § 10382(b) ..................................................................................................................... 16
8 34 U.S.C. § 10382(c)(2) ............................................................................................................. 5, 14

9 34 U.S.C. § 10382(c)(3) ............................................................................................................. 5, 14

10 34 U.S.C. § 10382(c)(10) ........................................................................................................... 5, 14

11 Pub. L. No. 96-157, 93 Stat. 1167 (1979) ...................................................................................... 17

12 Violent Crime Control and Law Enforcement Act of 1994, Pub. L. No. 103-322,

13

Title I, § 10003(a), 108 Stat. 1808 (1994) ............................................................................. 3, 21

14 Pub. L. No. 111-5 ............................................................................................................................. 7

15 Pub. Law No. 112-55, 125 Stat. 552 (2011) .............................................................................. 4, 16

16 Pub. Law No. 113-6, 127 Stat. 198 (2013) ................................................................................ 4, 16

17 Pub. Law No. 113-235, 128 Stat. 2130 (2014) .......................................................................... 4, 16
18 Pub. L. No. 114-22, 129 Stat. 227 (2015) ...................................................................................... 15 19
Pub. L. No. 115-37 ........................................................................................................................... 7
20

21 REGULATIONS
22 28 C.F.R. §§ 0.119 ........................................................................................................................... 3
23
28 C.F.R. §§ 0.120 ........................................................................................................................... 3
24

25

26

27

28

v

Case 2:17-cv-07215-R-JC Document 33 Filed 10/12/17 Page 7 of 32 Page ID #:797

1

INTRODUCTION

2

The COPS Hiring Program (“CHP” or “Program”) awards federal grants to selected state,

3 local, and tribal governments to assist in hiring, rehiring, and training law enforcement officers to

4 enhance public safety and promote “community-oriented policing.” CHP is a discretionary

5 federal grant program, with grants awarded to recipients following a competitive application and

6 scoring process. Every year, hundreds of law enforcement agencies request funding through this

7 program, requests that far exceed the total available funds appropriated by Congress. From 2011

8 through 2016, for example, the total requests have been an average of more than five times the

9 available funds. To reconcile these competing requests, Congress gave the Department of Justice

10 (“DOJ” or “Department”) broad discretion to determine, on an annual basis, which jurisdictions

11 should receive CHP funding. DOJ exercises that discretion to promote and support public safety

12 objectives.

13

DOJ’s Office of Community Oriented Policing Services (“COPS Office” or “Office”)

14 awards CHP grants. To apply for funding, a state, local, or tribal agency must submit an appli-

15 cation that (1) provides information about the jurisdiction’s needs and practices and (2) explains

16 how the jurisdiction intends to utilize the new officers it will use CHP funds to hire. The COPS

17 Office scores the applications according to both the comparative needs of the applicants and

18 metrics that emphasize the Federal Government’s enforcement priorities in any given year. To

19 that end, each year the Office selects several key “focus areas” for law enforcement and gives

20 extra points to applications that focus on those areas. Over time, those focus areas have ranged

21 from Violent Crime Problems to Child and Youth Safety to Drug Abuse.

22

For Fiscal Year 2017, the COPS Office has included two law-enforcement related

23 immigration factors in its scoring system. First, one of the focus areas for this year is “Illegal

24 Immigration,” which means that applicants can earn extra points by proposing ways to contribute

25 to combatting illegal immigration. Second, applicants can earn extra points by adopting policies

26 to ensure (1) that the Department of Homeland Security (“DHS”) has access to the applicant’s

27 detention facilities to meet with non-U.S. citizens, and (2) that DHS receives advance notice of

28 the scheduled release of a non-citizen in the jurisdiction’s custody when DHS requests it.

Case 2:17-cv-07215-R-JC Document 33 Filed 10/12/17 Page 8 of 32 Page ID #:798

1

Los Angeles seeks a preliminary injunction against the COPS Office’s use of these law-

2 enforcement-related immigration factors, claiming they are ultra vires and violate the

3 constitutional Separation of Powers, the limitations on the federal Spending Power, and the

4 Administrative Procedure Act. But Los Angeles does not have standing to challenge these factors

5 at all, much less seek emergency relief. The City has neither pled nor shown that its injury – not

6 receiving CHP funding – is traceable to the immigration factors it attacks. Nor could it. As the

7 accompanying declaration from the COPS Office makes clear, Los Angeles would not receive

8 CHP funding this year even if all points related to illegal immigration were excluded from the

9 scoring. Los Angeles does not have standing to challenge a supposed violation that does not

10 affect it.

11

Even if the City did have standing, its suit is unlikely to succeed. The COPS statutes give

12 DOJ broad discretion to allocate scarce CHP funds among the many applicants who seek them,

13 such that the Office is not acting ultra vires or encroaching on the congressional sphere. As for

14 the Spending Clause, the immigration-related factors – which are mere scoring criteria rather than

15 conditions on federal funds – are clear and clearly related to the Program’s purposes. The COPS

16 Office offered to answer any questions from potential applicants (an offer Los Angeles did not

17 accept), and the COPS Office believes illegal immigration is a public safety issue best addressed

18 by facilitating federal access to non-citizens who are in custody and who have thus either

19 committed crimes or are suspected of committing crimes. Finally, as for plaintiff’s APA claim,

20 the immigration-related factors are consistent with the CHP’s purposes, and nothing in the statute

21 suggests these factors are off limits. Plaintiff may have a “difference in view,” but that is not an

22 APA violation. See, e.g., All. for the Wild Rockies v. Peña, 865 F.3d 1211, 1217 (9th Cir. 2017).

23

Further, the City cannot show a likelihood of irreparable harm absent a preliminary

24 injunction, and the public interest weighs against the injunction sought. Again, Los Angeles

25 would not receive a CHP grant this year regardless of the immigration-related factors. It will

26 thus suffer no harm – much less irreparable harm – absent an injunction. And the public interest

27 weighs heavily in favor of enforcing the law and protecting public safety.

28

For these reasons, plaintiff’s motion for preliminary injunction should be denied.

2

Case 2:17-cv-07215-R-JC Document 33 Filed 10/12/17 Page 9 of 32 Page ID #:799

1 2 3 I.

STATUTORY AND ADMINISTRATIVE BACKGROUND COPS Hiring Program and the Office of Community Oriented Policing Services

4

A. Governing Statutes and Creation of the Program

5

In the Violent Crime Control and Law Enforcement Act of 1994, Congress authorized the

6 Attorney General to “make grants to States, units of local government, [and] Indian tribal

7 governments . . . to increase police presence, to expand and improve cooperative efforts between

8 law enforcement agencies and members of the community to address crime and disorder

9 problems, and otherwise to enhance public safety.” Pub. L. No. 103-322, Title I, § 10003(a), 108

10 Stat. 1808 (1994). As later amended and currently codified, the statute provides authority to

11 make grants for any of several specific purposes, including –

12

(1) to rehire law enforcement officers who have been laid off as a result of

13

State, tribal, or local budget reductions for deployment in community-oriented policing; [and]

14
(2) to hire and train new, additional career law enforcement officers for

15

deployment in community-oriented policing across the Nation, including by

prioritizing the hiring and training of veterans . . . .
16
34 U.S.C. § 10381(b)(1), (2).

17
The Attorney General created the Office of Community Oriented Policing Services to

18
administer grants under the Violent Crime Control and Law Enforcement Act of 1994. See

19
Declaration of Andrew A. Dorr ¶ 2 (“Dorr Decl.”) (Attachment 1 hereto). In addition to adminis-

20
tering grant programs that promote “community policing,” the COPS Office provides community

21
policing training and technical assistance to state, local, and tribal law enforcement agencies. Id.

22
The Office is headed by a Director appointed by the Attorney General. Id.; 28 C.F.R. §§ 0.119,

23
0.120. The COPS Office began implementing 34 U.S.C. § 10381(b)(1) and (b)(2) in 1994.

24
Initially, the Office operated two programs, one for large grantees and one for small grantees. See

25
Dorr Decl. ¶ 5. The programs were combined in 1995, and it was named the COPS Hiring

26
Program in 2010. Id.

27
Under CHP, the COPS Office makes grants to States, units of local government, and

28

3

Case 2:17-cv-07215-R-JC Document 33 Filed 10/12/17 Page 10 of 32 Page ID #:800

1 Indian tribal governments to hire, rehire, or train law enforcement officers for deployment in

2 “community-oriented policing,” which the Office defines as “a philosophy that promotes

3 organizational strategies that support the systematic use of partnerships and problem-solving

4 techniques to proactively address the immediate conditions that give rise to public safety issues

5 such as crime, social disorder, and fear of crime.” Id. ¶¶ 5, 7. A COPS Hiring Program grant is

6 discretionary, id. ¶ 4 – that is, it is a grant “for which the federal awarding agency generally may

7 select the recipient from among all eligible recipients, may decide to make or not make an award

8 based on the programmatic, technical, or scientific content of an application, and can decide the

9 amount of funding to be awarded.” See Discretionary Grant, Grant Terminology,

10 https://www.grants.gov/ web/ grants/ learn-grants/ grant-terminology.html (last visited Oct. 11,

11 2017). Discretionary grants differ from formula grants, which, when awarded, must follow

12 statutorily created statistical criteria. See Formula Grant, Grant Terminology,

13 https://www.grants.gov/ web/ grants/ learn-grants/ grant-terminology.html (last visited Oct. 11,

14 2017).

15

The operation of the CHP – like all other COPS Office grant programs – is subject to

16 specific annual appropriations by Congress. See Dorr Decl. ¶¶ 3, 5. Each year, Congress

17 appropriates a certain amount “for the hiring and rehiring of additional career law enforcement

18 officers” under the Program. See, e.g., Pub. Law No. 113-235, 128 Stat. 2130, 2196 (2014); Pub.

19 Law No. 113-6, 127 Stat. 198, 257 (2013); Pub. Law No. 112-55, 125 Stat. 552, 618 (2011).1

20 Those amounts have decreased over the last several years, making the Program increasingly

21 competitive. See Dorr Decl. ¶¶ 12-13. Each year, the applications that the COPS Office receives

22 for CHP grants seek more funds, in the aggregate, than Congress has appropriated. Id. ¶ 13.

23

The statute sets forth certain specific requirements for the COPS Hiring Program. For

24 example, the COPS Office must award at least 0.5% of the available funding to the grantees

25 within any State that has eligible applicants (which helps ensure that smaller States are not

26 excluded from funding), 34 U.S.C. § 10381(f); Dorr Decl. ¶ 9; the Office must allocate 50% of

27

1 34 U.S.C. § 10381(b) provides statutory authority for several other potential grants, 34

28 U.S.C. § 10381(b)(3) - (22), but Congress has never appropriated funds for most of them and,

therefore, the COPS Office has never offered grants under most of them. See Dorr Decl. ¶ 6.

4

Case 2:17-cv-07215-R-JC Document 33 Filed 10/12/17 Page 11 of 32 Page ID #:801

1 each year’s available funds to jurisdictions with a population over 150,000 and 50% of available

2 funds to jurisdictions with a population less than 150,000, 34 U.S.C. § 10381(h); see id.

3 § 10261(a)(11)(B); and each grantee must provide a portion of the money used to hire or rehire

4 each law enforcement officer that CHP funds (i.e., local matching funds), subject to discretionary

5 waiver by the Attorney General, id. § 10381(g).

6

B. Scoring Applications and Selecting Grantees

7

Other than these broad rules, the statutes governing the COPS Hiring Program do not

8 prescribe any particular method or factors for evaluating applications or choosing which applica-

9 tions to fund. The COPS Office must thus necessarily exercise judgment and discretion in

10 choosing among applications. And the COPS Office has developed methods to evaluate and

11 score applications in order to determine how best to allocate the Program’s finite funds. See Dorr

12 Decl. ¶ 14. A jurisdiction seeking a CHP grant fills out and submits an electronic application on

13 the COPS Office web site. Id. ¶ 10. The application is part of a system that assigns a specific

14 number of points for each answer given by the applicant. Id. ¶ 15.

15

Some of the factors that the COPS Office uses in scoring applications are reflected in the

16 statutes. For example, the statute states that applicants “shall . . . demonstrate a specific public

17 safety need [and] explain the applicant’s inability to address the need without Federal assistance.”

18 34 U.S.C. § 10382(c)(2), (3). The Office has implemented this directive by requesting data

19 reflecting each applicant’s crime statistics and financial need and by according extra points in the

20 application system based on higher crime rates within a jurisdiction and comparatively greater

21 fiscal need. See Dorr Decl. ¶ 16. Similarly, the application system scores the quality of the

22 applicant’s community policing plan pursuant to the statutory requirement that applicants

23 “explain how the grant will be utilized to reorient the affected law enforcement agency’s mission

24 toward community-oriented policing or enhance its involvement in or commitment to

25 community-oriented policing.” Id.; 34 U.S.C. § 10382(c)(10).

26

Most of the factors that the COPS Office has historically used to score applications are not

27 expressly reflected in the statutes, but are adopted as an exercise of the Office’s statutory discre-

28 tion to evaluate applications and distribute scarce funding. The Office has employed such

5

Case 2:17-cv-07215-R-JC Document 33 Filed 10/12/17 Page 12 of 32 Page ID #:802

1 discretionary factors since the inception of the COPS Hiring Program, and Congress has

2 continued to appropriate funding for the Program each year with a complete understanding of

3 how the Office administers it. The COPS Office exercises its discretion through several scoring

4 mechanisms, without which the program’s limited funding could not be rationally awarded.

5

First, each year, the COPS Office designates several broad areas of public safety and

6 community policing, and applicants must indicate which areas their proposed activities will

7 support. And each year, the COPS Office prioritizes certain of the available areas; applicants

8 who select those focus areas receive extra points in the application system. See Dorr Decl. ¶ 18.

9 The available areas, and the focus areas, have changed over the years, reflecting changes in both

10 national law enforcement necessities and Department of Justice priorities. For example, in FY

11 2014, after the Newtown (Connecticut) Police Department failed to score high enough in FY

12 2013 to receive a CHP grant following the December 2012 Sandy Hook Elementary School

13 shooting, the COPS Office added a “catastrophic event” question to the application and assigned

14 it the highest level of extra points to ensure that the Office could assist agencies afflicted by

15 unexpected catastrophes like the Sandy Hook shooting. Id. For Fiscal Year 2017, the available

16 areas are Child and Youth Safety Focus; Child and Youth Safety Focus: School Based Policing;

17 Illegal Immigration; Drug Abuse; Homeland Security Problems; Non-Violent Crime Problems

18 and Quality-of-Life Policing; Building Trust and Respect; Traffic/Pedestrian Safety Problems;

19 and Violent Crime Problems. Id. ¶ 7.

20

Second, certain questions on the CHP application that do not relate to focus areas are

21 awarded more points than other questions based on their significance to advancing community

22 policing or other priorities. Id. ¶ 18. For example, the application system accords extra points for

23 certain internal management practices of the applicant, including the regular assessment of

24 employee satisfaction, the exercise of flexibility in officer shift assignments to facilitate address-

25 ing problems, and the operation of an “early intervention system” to identify officers showing

26 signs of stress, personal problems, or questionable work conduct. Id. Additionally, from FY

27 2013 through FY 2016, the COPS Office, based on the Attorney General’s priorities, assigned

28 extra points for jurisdictions that preferred military veterans in hiring officers with CHP funds,

6

Case 2:17-cv-07215-R-JC Document 33 Filed 10/12/17 Page 13 of 32 Page ID #:803

1 although no such preference was then mandated in the statute. Id. ¶ 19.2

2

Third, each individual factor on the CHP application falls into one of three categories:

3 Fiscal Health, Crime, or Community Policing. Id. ¶ 20. After calculating each applicant’s raw

4 scores, the COPS Office gives different weights to the applicant’s scores in each of these

5 categories, based on the Attorney General’s priorities and the needs of public safety. Id. For

6 most years, each applicant’s score in the Fiscal Health category has been weighted as 20% of the

7 applicant’s final score; each applicant’s score in the Crime category has been weighted as 30% of

8 the applicant’s final score; and each applicant’s score in the Community Policing category has

9 been weighted as 50% of the applicant’s final score. Id. The Office changes these weighting

10 percentages from time to time. In FY 2009, for example, in light of the national fiscal issues that

11 resulted in enactment of the American Recovery and Reinvestment Act of 2009, see Pub. L. No.

12 111-5, 123 Stat. 115, the Office accorded 50% of the weighting to the “Fiscal Health” category.

13 Id.

14

C. Immigration-Related Factors

15

Beginning with Fiscal Year 2016, certain immigration-related requirements and scoring

16 factors have been included in the COPS Hiring Program.

17

CHP grantees, like all federal grantees, are required to comply with all applicable federal

18 laws. Id. ¶ 23. Beginning with FY 2016, the COPS Office has advised each CHP applicant that

19 this requirement includes compliance with 8 U.S.C. § 1373, which provides that “a Federal, State,

20 or local government entity or official may not prohibit, or in any way restrict, any government

21 entity or official from sending to, or receiving from, the Immigration and Naturalization Service

22 information regarding the citizenship or immigration status, lawful or unlawful, of any

23 individual.” Id. § 1373(a); see Dorr Decl. ¶ 23. In FY 2017, the COPS Office required applicants

24 to certify compliance with Section 1373 as a threshold eligibility requirement, although there is

25 no scoring associated with it. Id.

26

For FY 2017, the priority areas on the CHP application included proposals that explicitly

27

2 Beginning with a legislative amendment in 2017, the statute now expressly authorizes

28 “prioritizing the hiring and training of veterans.” 34 U.S.C. § 10381(b)(2); see Pub. L. No.
115-37, 131 Stat. 854 (2017).

7

Case 2:17-cv-07215-R-JC Document 33 Filed 10/12/17 Page 14 of 32 Page ID #:804

1 prioritized addressing problems with violent crime; proposals that focused on homeland security,

2 such as protecting critical infrastructure; and proposals that focused on contributing to the control

3 of illegal immigration or cooperating with federal authorities in enforcing federal immigration

4 law. Id. ¶ 18. Thus, the application system assigned extra points for focusing on Illegal

5 Immigration, although it also gave an equal or greater number of points for focusing on other

6 specified areas. Id. ¶ 24. Some jurisdictions chose Illegal Immigration as the focus area of their

7 FY 2017 applications, but none scored high enough to permit further consideration, regardless of

8 any points attributable to the access-and-notice factors described below. Id.

9

Lastly, beginning in FY 2017, the COPS Office has offered applicants the opportunity to

10 receive additional points by certifying that the applicant has implemented or would implement

11 regulations or policies to ensure (1) that DHS would have access to the applicant’s correctional or

12 detention facilities “to meet with an alien (or an individual believed to be an alien) and inquire as

13 to his or her right to be or to remain in the United States,” and (2) that the applicant’s correctional

14 and detention facilities will “provide advance notice as early as practicable (at least 48 hours,

15 where possible) to DHS regarding the scheduled release date and time of an alien in the jurisdic-

16 tion’s custody when DHS requests such notice in order to take custody of the alien.” Id. ¶ 25. To

17 inform applicants of the opportunity to receive points based on these “access” and “notice”

18 factors, the COPS Office electronically sent each applicant a letter, certification form, and

19 background documents. Id. ¶ 27 & Ex. B. These materials stated, among other things, that the

20 certification would not commit applicants to detain any individuals beyond their scheduled time

21 of release, and that applicants would not be penalized if they did not operate detention facilities.

22 Id. ¶ 27.

23

A jurisdiction’s certification regarding these factors does not forbid the jurisdiction from

24 informing detainees that they may choose not to meet with federal immigration authorities where

25 the jurisdiction’s laws require providing that information. Id. ¶ 26. Nor does the certification

26 require a jurisdiction to notify DHS before releasing a non-U.S. citizen under short-term detention

27 with an unknown release time. Id. Rather, the certification means that when DHS requests

28

8

Case 2:17-cv-07215-R-JC Document 33 Filed 10/12/17 Page 15 of 32 Page ID #:805

1 advance notice of a particular suspected non-citizen’s release, the jurisdiction will provide that

2 notice as early as practicable before releasing the suspected non-citizen. Id.

3 II. Immigration and Nationality Act

4

Enforcement of the immigration laws, including and especially the investigation and

5 apprehension of criminal aliens, is a quintessential law enforcement function. Through the

6 Immigration and Nationality Act (“INA”), 8 U.S.C. §§ 1101-07, Congress granted the Executive

7 Branch significant authority to control the entry, movement, and other conduct of foreign

8 nationals in the United States. These responsibilities are assigned to law enforcement agencies,

9 as the INA authorizes DHS, DOJ, and other Executive Branch agencies to administer and enforce

10 the immigration laws. The INA permits the Executive Branch to exercise considerable executive

11 discretion to direct enforcement pursuant to federal policy objectives. See, e.g., Arizona v. United

12 States, 567 U.S. 387, 396 (2012).

13

The INA includes several provisions that protect the ability of federal officials to

14 investigate the status of non-citizens in the United States and otherwise enforce the immigration

15 laws. For example, the statute provides that a federal immigration officer “shall have power

16 without warrant . . . to interrogate any alien or person believed to be an alien as to his right to be

17 or to remain in the United States.” 8 U.S.C. § 1357(a)(1). Separately, as noted above, 8 U.S.C.

18 § 1373 provides that “a Federal, State, or local government entity or official may not prohibit, or

19 in any way restrict, any government entity or official from sending to, or receiving from, the

20 Immigration and Naturalization Service information regarding the citizenship or immigration

21 status, lawful or unlawful, of any individual.” Id. § 1373(a).3 The INA provides that certain

22 classes of non-citizens shall be removed from the United States upon the order of the Attorney

23 General or the Secretary of Homeland Security. See, e.g., id. §§ 1227(a), 1228.

24

25

3 Additionally, 8 U.S.C. § 1373(b) provides that “[n]otwithstanding any other provision of

Federal, State, or local law, no person or agency may prohibit, or in any way restrict, a Federal,
26 State, or local government entity from doing any of the following with respect to information

27

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

28 Service. (2) Maintaining such information. (3) Exchanging such information with any other

Federal, State, or local government entity.”

9

Case 2:17-cv-07215-R-JC Document 33 Filed 10/12/17 Page 16 of 32 Page ID #:806

1

The INA also establishes immigration enforcement as a cooperative endeavor among

2 federal, state, and local law enforcement agencies. See, e.g., id. § 1357(g) (providing that DHS

3 may enter into formal cooperative agreements with states and localities under which appropriately

4 trained and qualified state and local officers may perform specified functions of a federal

5 immigration officer in relation to the investigation, apprehension, or detention of aliens); see also

6 id. § 1324(c) (authorizing state and local law enforcement officers to make arrests for violations

7 of the INA’s prohibition against smuggling, transporting, or harboring aliens); id. § 1252c

8 (authorizing state and local officers to arrest certain felons who have unlawfully returned to the

9 United States).

10 III. Los Angeles’s COPS Hiring Program Applications

11

Los Angeles has applied for CHP grants three times: in FY 2012, FY 2016, and FY 2017.

12 The 2012 and 2016 applications were granted, with the City receiving $6,428,350 for 25 officers

13 in 2012, and $3,125,000 for 25 officers in 2016. See Dorr Decl. ¶ 30. The City’s application for

14 FY 2017 sought $3.125 million to support hiring twenty-five officers for a Community Safety

15 Partnership Program. Id. ¶ 31. Los Angeles neither listed Illegal Immigration as a focus area in

16 its FY 2017 application nor returned a certification regarding the access and notice factors. Id.

17

After plaintiff commenced this action, the COPS Office tabulated the scores of this year’s

18 CHP applicants and determined that Los Angeles would not receive a CHP grant even absent the

19 immigration-related factors described above. Id. ¶ 32. Moreover, among the large-population

20 jurisdictions, only one applicant listed “Illegal Immigration” as a focus area, and it still scored

21 lower than Los Angeles; thus, the existence of the “Illegal Immigration” focus area did not affect

22 Los Angeles’s receipt or non-receipt of an award. Id. Thus, even if all points associated with

23 illegal immigration were excluded from the scoring, Los Angeles still would not score highly

24 enough among large-population applicants to receive a grant. Id.

25

ARGUMENT

26

A preliminary injunction is “an extraordinary and drastic remedy” that should not be

27 granted “unless the movant, by a clear showing, carries the burden of persuasion.’” Lopez v.

28 Brewer, 680 F.3d 1068, 1072 (9th Cir. 2012) (quoting Mazurek v. Armstrong, 520 U.S. 968, 972

10

Case 2:17-cv-07215-R-JC Document 33 Filed 10/12/17 Page 17 of 32 Page ID #:807

1 (1997) (per curiam)). The Supreme Court has clarified the requirements for a preliminary

2 injunction in Winter v. Natural Resources Defense Council, 555 U.S. 7 (2008). Under Winter,

3 “[a] plaintiff seeking a preliminary injunction must establish that he is likely to succeed on the

4 merits, that he is likely to suffer irreparable harm in the absence of preliminary relief, that the

5 balance of equities tips in his favor, and that an injunction is in the public interest.” Id. at 20

6 (emphasis added). Critically, this is “a four-part conjunctive test, not . . . a four-factor balancing

7 test”; thus, Winter “reject[ed] the sliding-scale test as to the irreparable-injury prong” previously

8 used by some courts. U.S. Bank, N.A. v. SFR Invs. Pool 1, LLC, 124 F. Supp. 3d 1063, 1070 (D.

9 Nev. 2015); see Am. Trucking Ass’ns v. City of Los Angeles, 559 F.3d 1046, 1052 (9th Cir. 2009)

10 (“To the extent that our cases have suggested a lesser standard, they are no longer controlling, or

11 even viable.”) (footnote omitted). Further, “[t]he party seeking the injunction bears the burden of

12 proving these elements.” Campbell v. Feld Entm’t Inc., No. 12-CV-4233-LHK, 2013 WL

13 4510629, at *4 (N.D. Cal. Aug. 22, 2013).

14

Plaintiff’s motion for a preliminary injunction should be denied both because its request

15 for an injunction is non-justiciable and because it cannot meet the requirements for preliminary

16 relief.

17 I. Plaintiff’s Claims Are Non-Justiciable

18

Article III of the Constitution limits federal court jurisdiction to “Cases” and

19 “Controversies.” U.S. Const. art. III, § 2, cl. 1. Matters outside this rubric are “nonjusticiable.”

20 Ore. Bureau of Labor & Indus. ex rel. Richardson v. U.S. W. Commc’ns, Inc., 288 F.3d 414, 416

21 (9th Cir. 2002). To satisfy the “irreducible constitutional minimum” of standing to sue, a plaintiff

22 must demonstrate an “injury in fact,” a “fairly traceable” causal connection between the injury

23 and defendant’s conduct, and redressability. Steel Co. v. Citizens for a Better Env’t, 523 U.S. 83,

24 102-03 (1998). The injury needed for constitutional standing must be “concrete,” “objective,”

25 and “palpable,” not merely “abstract” or “subjective.” See Whitmore v. Arkansas, 495 U.S. 149,

26 155 (1990); Bigelow v. Virginia, 421 U.S. 809, 816-17 (1975). Finally, the plaintiff must show “a

27 likelihood that the requested relief will redress the alleged injury.” Steel Co., 523 U.S. at 103.

28

11

Case 2:17-cv-07215-R-JC Document 33 Filed 10/12/17 Page 18 of 32 Page ID #:808

1

Under these principles, plaintiff’s request for an injunction against using the immigration-

2 related factors in the COPS Hiring Program is non-justiciable. Plaintiff’s alleged harm is “a

3 disadvantage in the competition” for CHP funds (Doc. 7-1 at 21), and, to eliminate that disadvan-

4 tage and secure a grant, plaintiff seeks an injunction against use of the immigration-related

5 factors. As described above, however, the COPS Office has now calculated the scores of this

6 year’s CHP applicants, and has determined that Los Angeles would not receive a grant even

7 without consideration of the factors challenged here. See Dorr Decl. ¶ 32. Therefore, the relief

8 that plaintiff seeks – an injunction against the immigration-related factors – would not alter the

9 outcome. Either way, Los Angeles would receive no grant, which means that the City’s suit, even

10 if successful, would not redress its harm. Thus, plaintiff cannot establish standing.

11 II. Plaintiff Cannot Establish a Likelihood of Success on the Merits

12

Even if this case were not moot, Los Angeles would be unable to show the “sine qua non”

13 of eligibility for a preliminary injunction: that is, likelihood of success on the merits of its claims.

14 See Thomas v. Zachry, ___ F. Supp. 3d ___, No. 3:17-CV-0219-LRH-WGC, 2017 WL 2633692,

15 at *2 (D. Nev. June 19, 2017) (“The sine qua non of preliminary injunction inquiry is likelihood

16 of success on the merits: if the moving party cannot demonstrate that he is likely to succeed in

17 his quest, the remaining factors become matters of idle curiosity.”) (quoting New Comm Wireless

18 Services, Inc. v. SprintCom, Inc., 287 F.3d 1, 9 (1st Cir. 2002)).

19

A. Plaintiff Is Unlikely to Succeed on Its Ultra Vires and

20

Separation of Powers Claims

21

Plaintiff’s first claim is that the COPS Office has acted beyond its authority and

22 encroached upon the constitutional authority of Congress in adopting immigration-related factors

23 in the COPS Hiring Program (Doc. 7-1 at 11-15). In this case, at least, the concepts of statutory

24 authority and constitutional separation of powers are two ways of looking at the same issue.

25 Article I of the Constitution confers on Congress the authority to “lay and collect Taxes, Duties,

26 Imposts and Excises, to pay the Debts and provide for the common Defence and general Welfare

27 of the United States.” U.S. Const. art. I, § 8, cl. 1. In exercising this power, Congress may – and

28 necessarily does – delegate to the Executive Branch the authority to make decisions regarding the

12

Case 2:17-cv-07215-R-JC Document 33 Filed 10/12/17 Page 19 of 32 Page ID #:809

1 expenditure of funds. See, e.g., Clinton v. City of New York, 524 U.S. 417, 488 (1998)

2 (“Congress has frequently delegated the President the authority to spend, or not to spend,

3 particular sums of money.”); Ameron, Inc. v. U.S. Army Corps of Engineers, 809 F.2d 979, 983

4 (3d Cir. 1986) (“Congress appropriates funds for a wide variety of purposes and delegates to

5 executive branch officials the authority to make certain decisions regarding how those funds are

6 to be spent.”).

7

The Executive Branch is responsible for implementing the law. The Supreme Court has

8 held that an Executive “officer may be said to act ultra vires only when he acts without any

9 authority whatever.” Pennhurst State Sch. & Hosp. v. Halderman, 465 U.S. 89, 101 n.11 (1984)

10 (internal quotation marks omitted). Thus, claims that an agency has used its authority

11 erroneously or inappropriately are insufficient to state an ultra vires claim. Rather, ultra vires

12 claims must be based on an “officer’s lack of delegated power”; merely claiming an “error in the

13 exercise of that power is . . . not sufficient.” Larson v. Domestic & Foreign Commerce Corp.,

14 337 U.S. 682, 690 (1949) (emphasis added).

15

Here, the Department of Justice, acting through the COPS Office, is responsible for

16 disseminating the scarce funds appropriated under 34 U.S.C. § 10381(b)(1) and (b)(2). The

17 statute gives the COPS Office discretion in disseminating those funds, and the inadequacy of the

18 available funds to cover all applications requires DOJ to adopt and employ factors to rank and

19 choose among them. Although the statute imposes certain requirements on disseminating CHP

20 funding, those requirements are only broad guidelines that are too general to actually allocate the

21 awards. Congress gave DOJ discretion to fill in the gaps.

22

By statute, the funds must be used to hire, rehire, and train law enforcement officers “for

23 deployment in community-oriented policing.” 34 U.S.C. § 10381(b)(1), (2). The statute also

24 provides a broad framework for DOJ’s discretionary awards. Recognizing that there would likely

25 not be enough money to fund every applicant, Congress required that at least 0.5% of available

26 funding be awarded to the grantees within any State that has eligible applicants, id. § 10381(f),

27 that DOJ equally allocate the available funds between large and small jurisdictions, id.

28 § 10381(h); id. § 10261(a)(11)(B), and that DOJ generally require local jurisdictions to provide

13

Case 2:17-cv-07215-R-JC Document 33 Filed 10/12/17 Page 20 of 32 Page ID #:810

1 matching funds, id. § 10381(g). Congress also specified that each application must, among other

2 things, “demonstrate a specific public safety need,” “explain the applicant’s inability to address

3 the need without Federal assistance,” and “explain how the grant will be utilized to reorient the

4 [applicant’s] mission toward community-oriented policing or enhance its involvement in or

5 commitment to community-oriented policing.” Id. § 10382(c)(2), (3), (10).

6

Beyond these basic requirements, the statute provides no comprehensive framework or

7 formula for choosing among the many jurisdictions that satisfy them. Indeed, the statute does not

8 even direct DOJ to prioritize applications that show the greatest “public safety need,” the most

9 dire “inability to address the need without Federal assistance,” or the greatest ability or willing-

10 ness “to reorient the [applicant’s] mission toward community-oriented policing.” It instead leaves

11 the details to DOJ, which means the COPS Office must either choose the winning applicants via

12 random lottery – an irrational method that losing applicants would surely challenge as arbitrary

13 and capricious – or develop a logical method of selecting worthy applicants that represents a

14 reasonable exercise of DOJ’s statutory discretion. By taking the latter course, the Office is not

15 encroaching on Congress. It is simply filling in gaps that Congress left for it to fill, no doubt

16 because Congress wanted DOJ to use its law-enforcement expertise to award these discretionary

17 grants in ways that best promote Congress’s broad goal of making our communities safer through

18 community-oriented policing. Cf. United States v. Dang, 488 F.3d 1135, 1140 (9th Cir. 2007)

19 (“Here, a plain reading of the statute indicates that Congress intended to leave a statutory gap for

20 the administrative agency to fill.”). Los Angeles might disagree with how the COPS Office is

21 exercising its statutory discretion, but simply asserting an “error in the exercise” of delegated

22 authority is “not sufficient” to state an ultra vires claim. Larson, 337 U.S. at 690.

23

The seven arguments listed in plaintiff’s motion do not establish a likelihood of succeed-

24 ing on the Separation of Powers or ultra vires claim. First, the three (really two) discretionary

25 considerations set forth at 34 U.S.C. § 10381(c), are not mandatory considerations, let alone

26 exhaustive ones. They are, rather, bases on which “the Attorney General may give preferential

27 consideration, where feasible,” id. (emphasis added), should he decide to do so in his discretion.

28 And these factors obviously are not exhaustive, because merely prioritizing jurisdictions that

14

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1 provide greater than 25% matching funds, id. § 10381(c)(1), or that have certain laws related to

2 child sex trafficking, id. § 10381(c)(2)-(3), would not be sufficient to allocate limited CHP

3 funding among the many applicants. Congress’s inclusion of a few factors that the COPS Office

4 “may” consider plainly does not foreclose the Office from developing additional factors to guide

5 how it awards its discretionary grants. See Barnhart v. Peabody Coal Co., 537 U.S. 149, 168

6 (2003) (“We do not read the enumeration of one case to exclude another unless it is fair to

7 suppose that Congress considered the unnamed possibility and meant to say no to it.”).4

8

Over the last twenty-three years, the COPS Office has used many discretionary factors,

9 not expressly reflected in the statute, to identify which applicants are most deserving of COPS

10 hiring grants. See Dorr Decl. ¶ 18-20. For example, the statute says nothing about prioritizing

11 different areas of public safety from year to year, which is an obvious means of directing

12 priorities and distributing funds logically and equitably. See id. ¶ 18. Nor does the statute

13 expressly direct the Office to favor localities that have recently experienced a catastrophic public

14 safety event (like the December 2015 terror attack in San Bernardino, California, which resulted

15 in a FY 2016 CHP grant to the San Bernardino Police Department), or to assign extra points for

16 exercising flexibility in officer shift assignments, or for attempting to identify officers showing

17 signs of stress or questionable work conduct. Id. Nor did the statute mandate the COPS Office’s

18 military veteran preference until Congress added it in 2017. Id. ¶ 19. In short, since Congress

19 created the COPS discretionary grant program, DOJ has exercised its statutory discretion to

20 develop and use a variety of different factors to award funding. The immigration-related factors

21 at issue here are just the latest example of that broad discretion. If plaintiff’s theory were correct,

22 all of these discretionary actions over the years – from prioritizing mass shootings to stressing

23 officer safety – would have to be deemed ultra vires. And Congress, knowing of this

24 (purportedly) ultra vires activity, would have to be deemed to have ignored it time and time again

25

26

27

4 This is confirmed by the fact that Congress added the human-trafficking provisions only

in 2015. See Pub. L. No. 114-22, § 1002, 129 Stat. 227, 266-67 (2015). If plaintiff’s construction

28 of the statute were correct, prior to 2015, the COPS Office would have been limited to ranking

applicants based on a jurisdiction’s willingness to exceed the minimum matching requirement.

15

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1 by repeatedly appropriating funding for the program every year without restriction.

2

Second, plaintiff misreads the statute in arguing that most of the factors on which the

3 Office relies are not among “the twenty-two enumerated purposes of the COPS program” in 34

4 U.S.C. § 10381(b)(1) through (22) (Doc. 7-1 at 12-13). The COPS Hiring Program is authorized

5 by only the first two paragraphs of Section 10381(b), which authorize providing grants for hiring,

6 rehiring, and training law enforcement officers “for deployment in community-oriented policing.”

7 34 U.S.C. § 10381(b)(1), (2). That language is reflected in Congress’s annual appropriations,

8 which provide funds specifically “for the hiring and rehiring of additional career law enforcement

9 officers.” See, e.g., Pub. Law No. 113-235, 128 Stat. 2130, 2196 (2014); Pub. Law No. 113-6,

10 127 Stat. 198, 257 (2013); Pub. Law No. 112-55, 125 Stat. 552, 618 (2011). The other para-

11 graphs of Section 10381(b) authorize other potential grants, when appropriated by Congress, such

12 as grants “to establish innovative programs to reduce, and keep to a minimum, the amount of time

13 that law enforcement officers must be away from the community while awaiting court appear-

14 ances” or “to support the purchase by a law enforcement agency of no more than 1 service

15 weapon per officer.” 34 U.S.C. § 10381(b)(10), (16). Congress has never appropriated money to

16 fund those other programs and accordingly the COPS Office does not award grants for those

17 purposes. See Dorr Decl. ¶ 6.

18

Third, the COPS Office’s authority to develop and employ factors to choose among the

19 various applicants for scarce CHP funds does not derive from the Office’s statutory authority to

20 dictate the “form” and content of applications, 34 U.S.C. § 10382(b) (Doc. 7-1 at 13). It derives,

21 rather, from the statutory scheme that establishes the CHP discretionary grant program. The

22 COPS Office’s authority to develop an application is simply a small subset of that broader

23 discretion.

24

Fourth, the proposed legislative amendment on which plaintiff relies (Doc. 7-1 at 13) is

25 not a proposal to amend the statutes governing the COPS Hiring Program. It is, rather, a request

26 to amend an entirely separate statute, 8 U.S.C. § 1373, to “condition” federal funding on

27 affirmative cooperation with federal immigration authorities. See Declaration of Steven Hong

28 (Doc. 7-3), Ex. F at 26. The immigration considerations at issue here are not “conditions” on

16

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1 receiving COPS funding; indeed, numerous jurisdictions that are focusing on goals other than

2 immigration and did not execute the “access” and “notice” certification will receive CHP funding

3 this year. See Dorr Decl. ¶ 32. That is because these considerations are simply some of the many

4 factors the COPS Office is using in Fiscal Year 2017 to allocate its scarce grant awards – no

5 different from the many other considerations the Office has used over the years in exercising its

6 statutory discretion.

7

Fifth, 8 U.S.C. § 1357(g)(3), does not limit the means by which a state or local

8 government can assist in the enforcement of immigration law or prohibit the COPS Office from

9 assigning extra points to jurisdictions that opt to assist federal immigration enforcement (contra

10 Doc. 7-1 at 13-14). As the Supreme Court has observed, that statute only delineates some of the

11 circumstances under which “state officers may perform the functions of an immigration officer,”

12 Arizona v. United States, 567 U.S. 387, 408 (2012), which include arresting aliens for “entering

13 or attempting to enter the United States in violation of any law or regulation made in pursuance of

14 law regulating the admission, exclusion, expulsion, or removal of aliens.” 8 U.S.C. § 1357(a)(2).

15 No formal agreement under Section 1357(g) is required for state and local officers to assist in

16 other ways, such as by providing access to non-citizens they have detained or informing federal

17 authorities of the impending release of such persons where practical. That kind of rudimentary

18 assistance – essentially making a phone call to DHS and then letting DHS personnel into a

19 building – does not require addressing the “complexities involved in enforcing federal immigra-

20 tion law, [such as] the determination whether a person is removable.” Arizona, 567 U.S. at 409.

21

Sixth, the challenged immigration-related factors in the COPS Hiring Program do not

22 impermissibly exercise “direction, supervision, or control over any police force or any other

23 criminal justice agency” in violation of 34 U.S.C. § 10228 (contra Doc. 7-1 at 14). Merely

24 encouraging cooperation with federal authorities by giving additional points as one portion of a

25 broader scoring system to administer a discretionary grant program does not exercise “direction,

26 supervision, or control.” Indeed, concurrent with the enactment of 34 U.S.C. § 10228, Congress

27 created the National Institute of Justice, see Pub. L. No. 96-157, §§ 202, 815, 93 Stat. 1167

28 (1979), one of whose very purposes is “to develop programs and projects . . . to improve and

17

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1 expand cooperation among the Federal Government, States, and units of local government . . . .”

2 34 U.S.C. § 10122(c)(2)(F).

3

Seventh, the “clear statement” rule in Gregory v. Ashcroft, 501 U.S. 452, 461 (1991), does

4 not apply to the development and use of scoring factors in the COPS Hiring Program (contra

5 Doc. 7-1 at 15). In Gregory, the Supreme Court addressed whether federal law would override a

6 provision of the Missouri constitution requiring most state judges to retire at age seventy. Id. at

7 455-61. The Court held that it would not “upset the usual constitutional balance of federal and

8 state powers” without a “clear statement” from Congress. Id. at 460-61. But this case does not

9 involve overriding state or local law. It is, rather, simply the latest iteration of an over-two-

10 decades-old discretionary grant program that gives state and local agencies an opportunity to

11 focus on federal enforcement priorities and thereby increase their chances of receiving a federal

12 grant. Nothing in this voluntary program risks “overriding” Los Angeles law.

13

B. Plaintiff Is Unlikely to Succeed on Its Spending Clause Claim

14

Plaintiff’s second claim is that the use of immigration-related factors in the COPS Hiring

15 Program exceeds federal power under the Spending Clause (Doc. 7-1 at 15-20). This Clause

16 provides that Congress may “lay and collect Taxes, Duties, Imposts and Excises, to pay the Debts

17 and provide for the common Defence and general Welfare of the United States.” U.S. Const. art.

18 I, § 8, cl. 1. As the Supreme Court has held, “Congress may attach conditions on the receipt of

19 federal funds, and has repeatedly employed the power to further broad policy objectives by

20 conditioning receipt of federal moneys upon compliance by the recipient with federal statutory

21 and administrative directives.” S. Dakota v. Dole, 483 U.S. 203, 206 (1987) (internal quotation

22 marks omitted).

23

The Court in Dole described certain limitations or potential limitations on the spending

24 power. Among other things, conditions on the receipt of federal funds must be stated “unambig-

25 uously” so that recipients can “exercise their choice knowingly, cognizant of the consequences of

26 their participation.” Id. at 207. Also, the Court observed, “our cases have suggested (without

27 significant elaboration) that conditions on federal grants might be illegitimate if they are unrelated

28

18

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1 to the federal interest in particular national projects or programs.” Id. at 207-08 (internal quota-

2 tion marks omitted). Assuming the immigration-related factors used by the COPS Office could

3 be classified as “conditions,” they satisfy both of these aspects of Dole.5

4

1. The Immigration-Related Factors Are Sufficiently Clear

5

Plaintiff argues that the COPS Office has not crafted the immigration-related factors so

6 the City can “clearly understand” them (Doc. 7-1 at 17-18). In truth, however, there is nothing

7 “ambiguous” about the Illegal Immigration focus area or the access and notice factors, and

8 applicants can choose those factors “knowingly, cognizant of the consequences of their

9 [choices].” Dole, 483 U.S. at 207; cf. Ward v. Rock Against Racism, 491 U.S. 781, 794 (1989)

10 (noting that “perfect clarity and precise guidance have never been required even of regulations

11 that restrict expressive activity”).

12

In describing focus areas for potential CHP applicants to choose from, the COPS Office

13 provides brief examples of some specific activities an applicant could propose to perform in each

14 focus area, but deliberately avoids telling applicants exactly what to do, so they can develop their

15 own approaches and tactics based on local conditions and their local law enforcement expertise.

16 See Dorr Decl. ¶ 8. For example, in offering Drug Abuse as a potential focus area for FY 2017,

17 the Office simply asked applicants to “specify [their] focus on education, prevention, and

18 intervention to combat drug use and abuse (e.g. marijuana, heroin, prescription opioids, etc.).” Id.

19 Similarly, in giving potential applicants the option of focusing on Illegal Immigration, the Office

20 asked interested jurisdictions to “specify [their] focus on partnering with federal law enforcement

21 to combat illegal immigration through information sharing, 287(g) partnerships, task forces and

22 honoring detainers.” Id. ¶ 24.

23

As in its Separation of Powers argument, plaintiff confuses assisting federal authorities in

24 the enforcement of immigration law with having state and local officers serve as “federal immi-

25 gration officers” under 8 U.S.C. § 1357(g) (Doc. 7-1 at 18). “[P]artnering with federal law

26 enforcement to combat illegal immigration” – in whatever specific way an applicant might

27

28

5 Although plaintiff repeatedly characterizes the access and notice factors as “require-

ments” (Doc. 7-1 at 10, 16, 25), they are actually scoring factors, not “requirements.”

19

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1 propose – will not require comprehensive knowledge of the “significant complexities” of federal

2 immigration law (id.). And if an applicant proposed a Section 287(g) partnership under the

3 Illegal Immigration focus area and a 287(g) agreement were reached, any necessary training

4 could be provided in the context of that lawful agreement.

5

Finally, to the extent the access and notice factors were unclear to Los Angeles (or any

6 other jurisdiction), the COPS Office made clear in its letter announcing them that applicants were

7 free to contact the Office with questions. See Dorr Decl. ¶ 28.6 The Office received numerous

8 inquiries, some of which it referred to its Legal Division, but Los Angeles apparently did not

9 inquire. Id. Plaintiff now objects that California law requires informing detainees that they may

10 refuse to meet with federal immigration authorities, and that “[i]t is not clear” how the notice

11 factor would apply “in the context of short-term detention operations, like LAPD’s, in which

12 ‘scheduled release’ is generally not a relevant concept” (Doc. 7-1 at 19). As the COPS Office has

13 made clear in this filing – and as it would have made clear to Los Angeles had it asked these

14 questions before – the Office does not understand these factors to forbid a jurisdiction from

15 informing detainees, where required by law, that they may choose not to meet with federal

16 immigration authorities, or to require that a jurisdiction notify DHS before the release of a non-

17 citizen under short-term detention whose release time is unknown. See Dorr Decl. ¶ 26.

18 Plaintiff’s concerns are unfounded.

19

2. The Immigration-Related Factors Are Sufficiently

20

Related to the Purposes of the COPS Hiring Program

21

Plaintiff also argues that the immigration-related factors are not “reasonably related” to

22 the goals of the COPS Hiring Program (Doc. 17-1 at 16). But this aspect of Dole suggests only a

23 “possible ground” for invalidating an enactment, and does not impose an “exacting standard”:

24

The Supreme Court has suggested that federal grants conditioned on compliance

25

6 As described earlier, to satisfy those factors, a jurisdiction must implement regulations
26 or policies to ensure that DHS has access to the jurisdiction’s correctional or detention facilities

27

“to meet with an alien (or an individual believed to be an alien) and inquire as to his or her right to be or to remain in the United States,” and that DHS receives “advance notice as early as

28 practicable (at least 48 hours, where possible) . . . regarding the scheduled release date and time

of an alien in the jurisdiction’s custody” when requested. See Dorr Decl. ¶ 25 & Ex. B.

20

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1

with federal directives might be illegitimate if the conditions share no relationship

to the federal interest in particular national projects or programs. This possible

2

ground for invalidating a Spending Clause statute, which only suggests that the

3

legislation might be illegitimate without demonstrating a nexus between the

conditions and a specified national interest, is a far cry from imposing an exacting

4

standard for relatedness.

5 Mayweathers v. Newland, 314 F.3d 1062, 1067 (9th Cir. 2002) (citing Dole, 483 U.S. at 207).

6 Thus, conditions on federal funding must only “bear some relationship to the purpose of the

7 federal spending.” 314 F.3d at 1067 (quoting New York v. United States, 505 U.S. 144, 167

8 (1992)); see Barbour v. Washington Metro. Area Transit Auth., 374 F.3d 1161, 1168 (D.C. Cir.

9 2004) (noting that Supreme Court has never “overturned Spending Clause legislation on

10 relatedness grounds”).

11

The immigration considerations at issue here easily meet this standard (assuming they are

12 “conditions” at all). Congress established the COPS Hiring Program to promote “community-

13 oriented policing,” 34 U.S.C. § 10381(b)(1), (2), “to increase police presence, to expand and

14 improve cooperative efforts between law enforcement agencies and members of the community

15 to address crime and disorder problems, and otherwise to enhance public safety,” Pub. L. No.

16 103-322, Title I, § 10003(a), 108 Stat. 1808 (1994). Assisting in the enforcement of immigration

17 law helps achieve these goals. The COPS Office believes that the intersection of illegal immigra-

18 tion and crime is a serious public safety issue that can be addressed most effectively through

19 community policing. See Dorr Decl. ¶ 29. This is also reflected in Congress’s desire, expressed

20 in the INA, to make immigration enforcement a cooperative endeavor among federal, state, and

21 local law enforcement agencies. See, e.g., 8 U.S.C. § 1357(g) (providing for formal agreements

22 under which state and local officers may function as federal immigration officers); see also id. §

23 1324(c) (authorizing state and local officers to make arrests for violations of the INA’s

24 prohibition against smuggling, transporting, or harboring aliens); id. § 1252c (authorizing state

25 and local officers to arrest certain felons who have unlawfully returned to the United States).

26

The access and notice factors relate only to non-citizens who are under detention; almost

27 invariably, those will be people who have either committed crimes or who are suspected of

28 having committed crimes. See Dorr Decl. ¶ 29. Working with the Federal Government to

21

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1 enforce federal immigration law against aliens who are criminals or suspected criminals makes

2 communities safer. Id. The immigration-related factors at issue directly advance the purposes of

3 the COPS Hiring Program. They thus easily clear the low bar of bearing “some relationship” to

4 those purposes. See Mayweathers, 314 F.3d at 1067. Indeed, Los Angeles itself acknowledges

5 that there is a relationship between immigration enforcement and public safety (see Doc. 7-1 at 9,

6 22).

7

C. The Immigration-Related Factors Are Consistent

8

with the Administrative Procedure Act

9

Plaintiff’s final claim is that the immigration-related factors are “arbitrary and capricious

10 [and] not in accordance with law” under the Administrative Procedure Act (Doc. 7-1 at 20-21). 5

11 U.S.C. § 706(2)(A). The Court of Appeals has held in numerous cases that “[a]n agency action is

12 arbitrary and capricious only if the agency relied on factors Congress did not intend it to consider,

13 entirely failed to consider an important aspect of the problem, or offered an explanation that runs

14 counter to the evidence before the agency or is so implausible that it could not be ascribed to a

15 difference in view or the product of agency expertise.” E.g., All. for the Wild Rockies v. Peña,

16 865 F.3d 1211, 1217 (9th Cir. 2017) (emphasis added) (internal quotation marks omitted). The

17 challenged factors in the COPS Hiring Program violate none of these parameters.

18

As detailed above, Congress established the COPS Hiring Program to promote public

19 safety and community-oriented policing, and thus intended the Department of Justice to consider

20 those aims in awarding grants. Those goals are enhanced by facilitating federal access to non-

21 citizens who have violated federal immigration law and who have violated, or are suspected of

22 violating, state or local criminal laws. Nothing in the statutes governing CHP suggests the

23 Department should not consider the extent to which a jurisdiction cooperates in the enforcement

24 of federal immigration law when exercising its discretion to disseminate scarce federal resources.

25

Los Angeles asserts that public safety is best served by pursuing “policies against engag-

26 ing in federal civil immigration enforcement” and that “enmeshing LAPD in civil immigration

27 enforcement would erode community trust and undermine public safety” (Doc. 7-1 at 9, 22). For

28 this reason, plaintiff contends, it “did not identify ‘Illegal Immigration’ as a focus area of its grant

22

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1 [application]” application and did not certify compliance with the access and notice factors (Doc.

2 7-1 at 10). But those assertions only reflect a “difference in view” with the Federal Government

3 regarding how best to promote public safety. See All. for the Wild Rockies, 865 F.3d at 1217.

4 Los Angeles is entitled to its views; but its disagreement does not establish a violation of the

5 Administrative Procedure Act.

6 III. The City Fails to Establish Irreparable Harm Absent Preliminary Relief

7

For the same reason Los Angeles does not have standing, it cannot establish that it will

8 suffer irreparable harm – a threshold requirement for a preliminary injunction. As the attached

9 declaration from the COPS Office explains, even if Los Angeles were correct that the immigra-

10 tion considerations are unlawful and cannot be considered, it still would not receive any CHP

11 funding this year. The City has thus failed to establish it will suffer any harm – much less

12 irreparable harm – absent preliminary relief. Its failure to satisfy this “crucial” requirement in

13 securing a preliminary injunction is alone sufficient basis to deny relief. Miller ex rel. NLRB v.

14 California Pac. Med. Ctr., 991 F.2d 536, 543 (9th Cir. 1993).

15

Plaintiff seems to suggest that being at a “disadvantage” in the competition for COPS

16 funding is itself irreparable injury (Doc. 7-1 at 21-22). But none of the decisions it cites hold that

17 merely being considered under (allegedly) improper factors in a grant program constitutes

18 irreparable harm requiring emergency judicial relief. For example, the case that plaintiff cites for

19 the proposition that “[a] rule putting plaintiffs at a competitive disadvantage constitutes irrepar-

20 able harm,” Int’l Franchise Ass’n v. City of Seattle, 803 F.3d 389 (9th Cir. 2015), involved a city

21 ordinance that subjected certain businesses to a steeper schedule for incremental minimum-wage

22 increases than other businesses. Id. at 397-98. Businesses subject to the steeper schedule sought

23 a preliminary injunction against the ordinance, and the court held that plaintiffs’ “competitive

24 injury” compared to other businesses constituted irreparable harm. Id. at 411. Similarly, another

25 case cited by the plaintiff, Ne. Fla. Chapter of Associated Gen. Contractors of Am. v. City of

26 Jacksonville, 508 U.S. 656 (1993), had nothing to do with irreparable harm. Rather, it dealt with

27 a city ordinance that accorded preferential treatment to certain minority-owned businesses in the

28 award of city contracts. Id. at 658-59. An organization of non-minority building contractors

23

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1 challenged the ordinance, and the Seventh Circuit held that plaintiffs had failed to show the

2 injury-in-fact needed for standing. Id. at 664. The Supreme Court reversed, holding that when a

3 person’s constitutional right to equal protection is at stake, “the denial of equal treatment resulting

4 from the imposition of [a] barrier” in the bidding process is itself a cognizable injury for standing

5 purposes. Id. at 666.

6

The competitive injuries recognized in those cases do not exist here, however. The courts

7 readily accept that “competitive harm” to ongoing business interests can supply standing and be

8 relevant in determining an appropriate remedy. See, e.g., Viceroy Gold Corp. v. Aubry, 75 F.3d

9 482, 488 (9th Cir. 1996); Wilcox v. First Interstate Bank of Or., N.A., 815 F.2d 522, 529 (9th Cir.

10 1987). But here, the plaintiff cannot complain of competitive harm to any business interests.

11 Rather, plaintiff’s only possible harm is losing a grant – one it would not win regardless.

12 IV. The Public Interest and the Balance of Equities Militate Against an Injunction

13

Lastly, a party seeking a preliminary injunction must “establish . . . that the balance of

14 equities tips in [its] favor, and that an injunction is in the public interest.” Winter, 555 U.S. at 20.

15 These factors merge in a suit against the Federal Government. Nken v. Holder, 556 U.S. 418, 435

16 (2009). Here, the public interest weighs heavily against plaintiff’s attempt to enjoin statutorily

17 authorized Executive Branch policies that are designed to promote enforcement of federal

18 immigration law in jurisdictions that receive federal law enforcement funds. Courts have

19 routinely held that “[t]he United States has an interest in enforcing federal law . . . .” Sec’y of

20 Labor v. Fitzsimmons, 805 F.2d 682, 693 (7th Cir. 1986) (emphasis omitted). The City’s

21 requested relief threatens, in particular, “the public interest in the speedy and effective

22 enforcement of the immigration laws . . . .” Sofinet v. INS, 188 F.3d 703, 708 (7th Cir. 1999).

23

As discussed in the accompanying declaration from DHS, the challenged CHP scoring

24 factors – especially the access and notice factors – promote these interests by, for example,

25 minimizing potentially hazardous public safety situations that may arise where criminal aliens are

26 released into the community, minimizing officer safety risk by limiting potentially dangerous

27 arrest situations, and promoting operational efficiency by conserving the resources needed by

28 DHS to execute its mission. See Declaration of Jim Brown ¶¶ 6-11 (Attachment 2 hereto). At

24

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1 bottom, encouraging cooperation between local governments and DHS promotes the public

2 interest in executing federal laws that require removal of criminal aliens. Id. These concrete

3 interests tip the relevant equities sharply against the injunction sought here.

4 V. Any Injunction Herein Should Be Limited to the Plaintiff

5

The proposed order on plaintiff’s motion for preliminary injunction would prohibit the

6 COPS Office from relying on immigration-related factors across the board (Doc. 7-5). If this

7 Court were to conclude, however, that Los Angeles had satisfied the requirements for preliminary

8 relief, any injunction should be limited to the plaintiff rather than applying to all CHP

9 applicants. “[A]n injunction must be narrowly tailored to affect only those persons over which

10 [the court] has power, and to remedy only the specific harms shown by the plaintiffs, rather than

11 to enjoin all possible breaches of the law.” Price v. City of Stockton, 390 F.3d 1105, 1117 (9th

12 Cir. 2004) (internal quotation marks omitted). Thus, courts routinely deny requests for

13 nationwide injunctive relief. See Skydive Arizona, Inc. v. Quattrocchi, 673 F.3d 1105, 1116 (9th

14 Cir. 2012) (affirming district court’s refusal to grant nationwide relief).

15

Moreover, Los Angeles has vigorously objected to the entry of a nationwide injunction in

16 an analogous situation. In Texas v. United States, the Fifth Circuit affirmed a nationwide injunc-

17 tion against programs allowing certain non-citizens to remain in the United States. 809 F.3d 134

18 (5th Cir. 2015). In an amicus brief filed with the Supreme Court, Los Angeles and other jurisdic-

19 tions urged the Court to vacate the injunction because the plaintiffs had failed “to establish injury

20 sufficient to enjoin the [programs] nationwide.” See Brief for Amici Curiae, United States v.

21 Texas, 136 S. Ct. 2271 (2016) (No. 15-674), 2016 WL 891345, at *20 (Attachment 3 hereto).

22 The City and its fellow amici argued that, to justify “an expansive nationwide injunction,” the

23 plaintiffs there would have to “establish standing to justify the scope of the injunction.” Id. at

24 *19, *30. In this case, the plaintiff has not even attempted to establish standing to seek a nation-

25 wide injunction against the use of immigration-related factors in the COPS Hiring Program. By

26 its own arguments, any preliminary injunction herein should be limited to Los Angeles.

27

CONCLUSION

28

Plaintiff’s motion for preliminary injunction should be denied.

25

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1 Dated: October 12, 2017 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28

Respectfully submitted,
CHAD A. READLER Acting Assistant Attorney General
SANDRA R. BROWN United States Attorney
JOHN R. TYLER Assistant Director
/s/ W. Scott Simpson
W. SCOTT SIMPSON (Va. Bar #27487) Senior Trial Counsel
Attorneys, Department of Justice Civil Division, Room 7210 Federal Programs Branch Post Office Box 883 Washington, D.C. 20044 Telephone: (202) 514-3495 Facsimile: (202) 616-8470 E-mail: scott.simpson@usdoj.gov
COUNSEL FOR DEFENDANTS

26

 </s> Case 2:17-cv-07215-R-JC Document 37 Filed 10/16/17 Page 1 of 4 Page ID #:998

1 MICHAEL N. FEUER, SBN 111529

MITCHELL A. KAMIN, SBN 202788

2 City Attorney JAMES P. CLARK, SBN 64780
3 Chief Deputy City Attorney

MÓNICA RAMÍREZ ALMADANI, SBN 234893 NEEMA T. SAHNI, SBN 274240

4 LEELA A. KAPUR, SBN 125548 Executive Assistant City Attorney
5 VALERIE L. FLORES, SBN 138572

Covington & Burling LLP 1999 Avenue of the Stars, Suite 3500 Los Angeles, California 90067-4643

6 Managing Senior Assistant City Attorney mkamin@cov.com

MICHAEL DUNDAS, SBN 226930

Telephone: (424) 332-4800

7 Deputy City Attorney

Facsimile: (424) 332-4749

8 200 North Main Street, City Hall East Suite 800
9 Los Angeles, California 90012

DAVID M. ZIONTS, pro hac vice pending IVANO M. VENTRESCA, pro hac vice

10 james.p.clark@lacity.org

11

Telephone: (213) 978-8344 Facsimile: (213) 978-8312

pending Covington & Burling LLP One CityCenter

12

850 Tenth Street NW

13

Washington, DC 20001 dzionts@cov.com

14

Telephone: (202) 662-6000

15

Facsimile: (202) 662-5987

16 Attorneys for Plaintiff City of Los Angeles

17 UNITED STATES DISTRICT COURT
18 FOR THE CENTRAL DISTRICT OF CALIFORNIA
19

20

21 CITY OF LOS ANGELES,

22

Plaintiff,

23

24

v.

25 JEFFERSON B. SESSIONS, III, in his

26

official capacity as Attorney General of the United States; ALAN R. HANSON, in his

27 official capacity as Acting Assistant

28 Attorney General of the Office of Justice

Case No. 2:17-cv-07215-R-JC
CITY OF LOS ANGELES’ NOTICE OF WITHDRAWAL OF APPLICATION FOR PRELIMINARY INJUNCTION

CITY OF LOS ANGELES’ NOTICE OF WITHDRAWAL OF APPLICATION FOR PRELIMINARY INJUNCTION

Case 2:17-cv-07215-R-JC Document 37 Filed 10/16/17 Page 2 of 4 Page ID #:999

1 Programs; RUSSELL WASHINGTON, in 2 his official capacity as Acting Director of
the Office of Community Oriented Policing 3 Services; UNITED STATES 4 DEPARTMENT OF JUSTICE.

5

Defendants.

6

7

8

On October 12, 2017, in response to Plaintiff City of Los Angeles’ (“Los

9 Angeles”) Application for Preliminary Injunction (D.E. 7) against the Department of

10 Justice’s unauthorized use of illegal immigration considerations in awarding community-

11 oriented policing (“COPS”) grants, Defendants disclosed for the first time that the

12 Department of Justice’s Office of Community Oriented Policing Services (“COPS

13 Office”) has putatively determined that Los Angeles’ award application was unaffected

14 by the inclusion of immigration-related considerations. See Decl. of Andrew A. Dorr,

15 D.E. 33-1, ¶ 32. Although Defendants have not included sufficient supporting

16 information to enable Plaintiff to assess this claim, Plaintiff has concluded that it would

17 be impractical to explore the matter further and still secure timely relief in advance of the

18 award decisions for the current grant year. As a result, there is no longer an urgent need

19 for the relief sought in Plaintiff’s Application for Preliminary Injunction.

20

Accordingly, Plaintiff City of Los Angeles hereby withdraws its Application for

21 Preliminary Injunction (D.E. 7). Because Defendants have not indicated that they will

22 abandon reliance on unlawful considerations in administering the COPS grant program,

23 Plaintiff’s claims and request for permanent relief remain unaffected.

24

25

26

27

28

CITY OF LOS ANGELES’ NOTICE OF WITHDRAWAL OF APPLICATION FOR PRELIMINARY INJUNCTION

Case 2:17-cv-07215-R-JC Document 37 Filed 10/16/17 Page 3 of 4 Page ID #:1000

Case 2:17-cv-07215-R-JC Document 37 Filed 10/16/17 Page 4 of 4 Page ID #:1001

1

2

CERTIFICATE OF SERVICE

3

4

I hereby certify that on October 16, 2017, I caused the foregoing Notice of

5 Withdrawal of Application for Preliminary Injunction to be filed through the Court’s 6 CM/ECF system, which will send a notice of filing to all registered CM/ECF users.

7

8

9

_/s/ Mónica Ramírez Almadani

10

11

12 Dated: October 16, 2017

13

14

15

16

17

18

19

20

21

22

23

24

25

26

27

28

CITY OF LOS ANGELES’ NOTICE OF WITHDRAWAL OF APPLICATION FOR PRELIMINARY INJUNCTION

 </s> Case 2:17-cv-07215-R-JC Document 49-1 Filed 11/21/17 Page 1 of 33 Page ID #:1045

1 MICHAEL N. FEUER, SBN 111529

MITCHELL A. KAMIN, SBN 202788

2 City Attorney JAMES P. CLARK, SBN 64780
3 Chief Deputy City Attorney

MÓNICA RAMÍREZ ALMADANI, SBN 234893 NEEMA T. SAHNI, SBN 274240

4 LEELA A. KAPUR, SBN 125548 Executive Assistant City Attorney
5 VALERIE L. FLORES, SBN 138572

Covington & Burling LLP 1999 Avenue of the Stars, Suite 3500 Los Angeles, California 90067-4643

6 Managing Senior Assistant City Attorney mkamin@cov.com

MICHAEL DUNDAS, SBN 226930

Telephone: (424) 332-4800

7 Deputy City Attorney

Facsimile: (424) 332-4749

8 200 North Main Street, City Hall East Suite 800
9 Los Angeles, California 90012

DAVID M. ZIONTS, admitted pro hac vice

10 james.p.clark@lacity.org

IVANO M. VENTRESCA, admitted pro

11

Telephone: (213) 978-8344 Facsimile: (213) 978-8312

hac vice Covington & Burling LLP

12

One CityCenter

13

850 Tenth Street NW Washington, DC 20001

14

dzionts@cov.com

15

Telephone: (202) 662-6000 Facsimile: (202) 662-5987

16

17 Attorneys for Plaintiff City of Los Angeles

18

UNITED STATES DISTRICT COURT

19

FOR THE CENTRAL DISTRICT OF CALIFORNIA

20

21 22 CITY OF LOS ANGELES,

Case No. 2:17-cv-07215-R-JCx

23

Plaintiff,

24

v.

25

26

JEFFERSON B. SESSIONS, III, in his official capacity as Attorney General of the

27 United States; ALAN R. HANSON, in his

28 official capacity as Acting Assistant

CITY OF LOS ANGELES’ MEMORANDUM IN SUPPORT OF MOTION FOR PARTIAL SUMMARY JUDGMENT
Judge: The Honorable Manuel L. Real Date: February 5, 2018 Time: 10:00 a.m.

CITY OF LOS ANGELES’ MEMORANDUM IN SUPPORT OF MOTION FOR PARTIAL SUMMARY JUDGMENT

Case 2:17-cv-07215-R-JC Document 49-1 Filed 11/21/17 Page 2 of 33 Page ID #:1046

1 Attorney General of the Office of Justice 2 Programs; RUSSELL WASHINGTON, in
his official capacity as Acting Director of 3 the Office of Community Oriented Policing 4 Services; UNITED STATES
DEPARTMENT OF JUSTICE. 5

6

Defendants.

7

8

9

10

11

12

13

14

15

16

17

18

19

20

21

22

23

24

25

26

27

28

CITY OF LOS ANGELES’ MEMORANDUM IN SUPPORT OF MOTION FOR PARTIAL SUMMARY JUDGMENT

Case 2:17-cv-07215-R-JC Document 49-1 Filed 11/21/17 Page 3 of 33 Page ID #:1047

1

TABLE OF CONTENTS

2

3 I. INTRODUCTION .......................................................................................... 1

4 II. 5 6

FACTUAL BACKGROUND......................................................................... 2 A. Congress Establishes the COPS Grant Program to Support the Hiring
of Police Officers to Engage in Community-Oriented Policing. ......... 2

7

B. Defendants’ Attempts to Use Federal Funds as a Weapon to Pressure

8

State and Local Governments to Participate in Federal Civil

Immigration Enforcement. ................................................................... 4

9

10

C. Los Angeles’ Applications for COPS Hiring Program Grant Funding. .............................................................................................................. 8

11 III. STANDARD OF REVIEW .......................................................................... 10 12 13 IV. ARGUMENT................................................................................................ 11

14

A. The Challenged Considerations Are Ultra Vires and Violate the Separation of Powers.......................................................................... 11

15

1. DOJ Cannot Use COPS Grant Decisions to Pressure State and

16

Local Governments to Change Their Regulations, Policies, and

17

Practices. .................................................................................. 12

18

2. DOJ Cannot Redirect COPS Funds Toward Civil Immigration Enforcement and Disfavor Communities That Intend to Use

19

COPS Funds to Engage in Community-Oriented Policing. .... 16

20

B. The Challenged Considerations Violate the Spending Clause Because

21

They Are Not Reasonably Related to Congress’s Purpose of Promoting Community-Oriented Policing. ........................................ 18

22

C. The Challenged Considerations Are Invalid Under the Administrative

23

Procedure Act. .................................................................................... 20

24 25 V. 26

D. The Court Should Enter a Permanent Injunction. .............................. 23 CONCLUSION............................................................................................. 24

27

28

CITY OF LOS ANGELES’ MEMORANDUM IN SUPPORT OF MOTION FOR PARTIAL SUMMARY JUDGMENT

Case 2:17-cv-07215-R-JC Document 49-1 Filed 11/21/17 Page 4 of 33 Page ID #:1048

1

TABLE OF AUTHORITIES

2

Page(s)

3 Cases

4 Arizona v. United States,

5

132 S. Ct. 2492 (2012)............................................................................................ 13, 18

6 Arrington v. Daniels,

7

516 F.3d 1106 (9th Cir. 2008) ...................................................................................... 22

8

Az. Cattle Growers’ Ass’n v. U.S. Fish & Wildlife, Bureau of Land Mgmt., 273 F.3d 1229 (9th Cir. 2001) ...................................................................................... 21

9

10

Bullfrog Films, Inc. v. Wick, 847 F.2d 502 (9th Cir. 1988) ........................................................................................ 10

11 Burlington Truck Lines, Inc. v. United States,

12

371 U.S. 156 (1962)...................................................................................................... 22

13 Chubb Custom Ins. Co. v. Space Systems/Loral, Inc.,

14

710 F.3d 946 (9th Cir. 2013) ........................................................................................ 13

15 City & Cty. of San Francisco v. United States,

16

130 F.3d 873 (9th Cir. 1997) ........................................................................................ 10

17 Cty. of Santa Clara v. Donald J. Trump; City and Cty. of San Francisco v.

18

Trump, 2017 WL 5569835 (N.D. Cal. Nov. 20, 2017) ......................................................... 5, 12

19

20

City of Chicago v. Sessions, 2017 WL 4081821 (N.D. Ill. Sept. 15, 2017) ................................................................. 6

21 City of Philadelphia v. Sessions,

22

2017 WL 5489476 (E.D. Pa. Nov. 15, 2017) ............................................... 6, 13, 20, 22

23 Com. Va., Dep’t of Educ. v. Riley,

24

106 F.3d 559 (4th Cir. 1997) (en banc) ........................................................................ 14

25 DeCanas v. Bica,

26

424 U.S. 351 (1976)...................................................................................................... 13

27 Gregory v. Ashcroft, 501 U.S. 452 (1991)...................................................................................................... 14
28

ii
CITY OF LOS ANGELES’ MEMORANDUM IN SUPPORT OF MOTION FOR PARTIAL SUMMARY JUDGMENT

Case 2:17-cv-07215-R-JC Document 49-1 Filed 11/21/17 Page 5 of 33 Page ID #:1049

1 Int’l Franchise Ass’n, Inc. v. City of Seattle,

2

803 F.3d 389 (9th Cir. 2015) ........................................................................................ 24

3 Kingdomware Technologies, Inc. v. United States,

4

136 S. Ct. 1969 (2016).................................................................................................. 10

5 Louisiana Pub. Serv. Comm’n v. FCC, 476 U.S. 355 (1986)...................................................................................................... 11
6

7

Melendres v. Arpaio, 695 F.3d 990 (9th Cir. 2012) ........................................................................................ 25

8

9

Miranda-Olivares v. Clackamas Cty., 2014 WL 1414305 (D. Or. Apr. 11, 2014) ............................................................... 6, 17

10 Monsanto Co v. Geertson Seed Farms,

11

561 U.S. 139 (2010)...................................................................................................... 24

12 Monterey Mechanical Co. v. Wilson,

13

125 F.3d 702 (9th Cir. 1997) ........................................................................................ 24

14 Morales v. Chadbourne,

15

793 F.3d 208 (1st Cir. 2015)........................................................................................... 6

16 Motor Vehicle Mfrs. Ass’n of U.S., Inc. v. State Farm Mut. Auto Ins. Co.,

17

463 U.S. 29 (1983)........................................................................................................ 23

18

Ne. Fla. Chapter of Associated Gen. Contractors of America v. Jacksonville, 508 U.S. 656 (1993)...................................................................................................... 10

19

20

Nevada v. Skinner, 884 F.2d 445 (9th Cir. 1989) ........................................................................................ 19

21 Ochoa v. Campbell,

22

2017 WL 3476777 (E.D. Wash. July 31, 2017) ....................................................... 6, 17

23 Pennhurst State Sch. & Hosp. v. Halderman,

24

451 U.S. 1 (1981).......................................................................................................... 20

25 Planned Parenthood Arizona Inc. v. Betlach,

26

727 F.3d 960 (9th Cir. 2013) ........................................................................................ 24

27 Preston v. Heckler,

28

734 F.2d 1359 (9th Cir. 1984) ...................................................................................... 10

iii
CITY OF LOS ANGELES’ MEMORANDUM IN SUPPORT OF MOTION FOR PARTIAL SUMMARY JUDGMENT

Case 2:17-cv-07215-R-JC Document 49-1 Filed 11/21/17 Page 6 of 33 Page ID #:1050

1 Regents of the Univ. of Cal. v. Bakke,

2

438 U.S. 265 (1978)...................................................................................................... 10

3 Robbins v. Reagan,

4

780 F.2d 37 (D.C. Cir. 1985) ........................................................................................ 12

5 S. Dakota v. Dole, 483 U.S. 203 (1987)................................................................................................ 19, 20
6

7

San Luis & Delta-Mendota Water Auth. v. Jewell, 747 F.3d 581 (9th Cir. 2014) ........................................................................................ 21

8

9

Santoyo v. United States, 2017 WL 2896021 (W.D. Tex. June 5, 2017) .......................................................... 6, 17

10 Schneider v. Chertoff,

11

450 F.3d 944 (9th Cir. 2006) ........................................................................................ 20

12 Sierra Forest Legacy v. Sherman,

13

646 F.3d 1161 (9th Cir. 2011) ...................................................................................... 24

14 Tarin v. Cty. of Los Angeles,

15

123 F.3d 1259 (9th Cir. 1997) ...................................................................................... 10

16 Tongatapu Woodcraft Hawaii, Ltd. v. Feldman,

17

736 F.2d 1305 (9th Cir. 1984) ...................................................................................... 22

18

Valle de Sol Inc. v. Whiting, 732 F.3d (9th Cir. 2013) ............................................................................................... 13

19

20 Statutes

21 5 U.S.C. § 706(2)(A).......................................................................................................... 21

22 8 U.S.C. § 1357(g)(1)............................................................................................... 6, 17, 18

23 34 U.S.C. § 10228(a) ......................................................................................................... 15

24 34 U.S.C. § 10381....................................................................2, 3, 4, 11, 13, 16, 18, 19, 20 25 Other Authorities 26 27 Fed. R. Civ. P. 56 ............................................................................................................... 10 28 Fed. R. Civ. P. 54(b) ...................................................................................................... 2, 25

iv
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Case 2:17-cv-07215-R-JC Document 49-1 Filed 11/21/17 Page 7 of 33 Page ID #:1051
1 H.R. Rep. 103-324 ............................................................................................................. 15 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28
v
CITY OF LOS ANGELES’ MEMORANDUM IN SUPPORT OF MOTION FOR PARTIAL SUMMARY JUDGMENT

Case 2:17-cv-07215-R-JC Document 49-1 Filed 11/21/17 Page 8 of 33 Page ID #:1052

1 I. INTRODUCTION

2

This is a case about a federal agency abusing its power—offending the separation

3 of powers and federalism all at once. Congress created a grant program to support state

4 and local governments in hiring officers for deployment in “community-oriented

5 policing” (the “COPS Hiring Program” or “COPS”). The U.S. Department of Justice

6 (“DOJ”) is charged with administering that grant program. DOJ’s stewardship over this

7 program requires it to make discretionary judgments about what communities most need

8 the money, what grant proposals are most likely to meet Congress’s goals, and other

9 salient factors. But Congress did not write DOJ a blank check. DOJ cannot use its hold

10 of the purse strings to pressure sovereign governments to change unrelated policies, or to

11 misdirect funds away from the types of programs Congress directed DOJ to support.

12

That is what DOJ has done in two unlawful manipulations of the COPS grant

13 competition. First, DOJ decided to award “additional consideration”—effectively bonus

14 points—to applicants that adopt regulations, policies, and practices reflecting particular

15 types of “partnership” with federal civil immigration authorities, and sign a “Certification

16 of Illegal Immigration Cooperation.” This necessarily means that communities that are

17 not willing or able to certify that they have adopted these DOJ-preferred regulations or

18 policies are disfavored in the grant process. These disfavored communities are then less

19 likely to receive federal support to hire officers for deployment in community-oriented

20 policing. This attempt to induce state and local governments to change their regulations,

21 policies, and practices is directly contrary to DOJ’s statutory authority. The COPS

22 statute identifies just one narrow area (treatment of victims of human trafficking) where

23 DOJ is authorized to favor applicants based on laws and policies unrelated to their use of

24 grant funds. DOJ plainly lacks broader authority to use the COPS grant program as

25 leverage to extract policy concessions from state and local governments.

26

Second, DOJ decided to award grants to applicants that focus on “Illegal

27 Immigration”—and to give preferential treatment in the grant competition to applicants

28 who choose that focus. This too is unlawful. No plausible interpretation of “community-

CITY OF LOS ANGELES’ MEMORANDUM IN SUPPORT OF MOTION FOR PARTIAL SUMMARY JUDGMENT

Case 2:17-cv-07215-R-JC Document 49-1 Filed 11/21/17 Page 9 of 33 Page ID #:1053

1 oriented policing” includes participating in civil immigration enforcement. Congress

2 certainly does not think so; it enacted a detailed list of twenty-two statutory purposes it

3 considered relevant to its goal of promoting community-oriented policing, and civil

4 immigration enforcement is conspicuously absent. DOJ’s attempt to fund state and local

5 officers to perform the duties of federal civil immigration agents is not only contrary to

6 the text and structure of the COPS statute, but squarely contradicts provisions of the

7 immigration laws that DOJ purports to be championing.

8

These forms of preferential treatment are no small detail. In a recent press release

9 announcing this year’s COPS awards, DOJ made clear that immigration-related

10 considerations were critical to award decisions—and that the agency is treating its

11 statutory mandate of promoting community-oriented policing as all but incidental. See

12 Request for Judicial Notice (“RJN”) Ex. H, DOJ, Office of Public Affairs, Attorney

13 General Sessions Announces $98 Million To Hire Community Policing Officers (Nov.

14 20, 2017) (“November Press Release”).

15

Defendants’ abuse of the COPS program must be rejected. It is ultra vires and a

16 violation of the separation of powers, it is an unconstitutional attempt to use Congress’s

17 Spending Clause power, and it is arbitrary and capricious. The Court should grant partial

18 summary judgment and enter final judgment under Federal Rule of Civil Procedure 54(b)

19 in favor of Plaintiff on Counts Four, Five, and Six; declare that Defendants’ actions are

20 unlawful; and enjoin them from administering the COPS program in this unlawful

21 manner going forward.

22 II. FACTUAL BACKGROUND

23

A. Congress Establishes the COPS Grant Program to Support the Hiring

24

of Police Officers to Engage in Community-Oriented Policing.

25

Community-oriented policing, according to the component of DOJ responsible for

26 promoting it, “begins with a commitment to building trust and mutual respect between

27 police and communities.” RJN Ex. A, Office of Community Oriented Policing Services,

28 “About”. Congress created the COPS program to support state and local government

2
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Case 2:17-cv-07215-R-JC Document 49-1 Filed 11/21/17 Page 10 of 33 Page ID #:1054

1 efforts to engage in community-oriented policing. To achieve that purpose, the COPS

2 statute authorized the Attorney General to “make[] grants to States, units of local

3 government, Indian tribal governments, other public and private entities, and multi-

4 jurisdictional or regional consortia.” 34 U.S.C. § 10381(a).

5

Congress authorized the COPS program as a “single grant program” and

6 enumerated twenty-two “purposes for which grants . . . may be made.” Id. § 10381(b).

7 These purposes include “to rehire” and “to hire and train new” law enforcement officers

8 “for deployment in community-oriented policing.” Id. § 10381(b)(1), (2).

9

DOJ administers the COPS grant program through its Office of Community

10 Oriented Policing Services (“COPS Office”). See Decl. of Stella Larracas, Ex. B, 2017

11 CHP Application Guide at 61. The COPS Office administers several types of COPS

12 programs each year, including the COPS Hiring Program (“CHP”) grant, which

13 “provides funding directly to law enforcement agencies to hire and/or rehire career law

14 enforcement officers in an effort to increase their community policing capacity and crime

15 prevention efforts.” Id. at 1, 7. Each fiscal year, the COPS Office issues applications for

16 the CHP grant and selects local government awardees to receive funds that can typically

17 be used over a three-year period.

18

Congress has generally not appropriated sufficient money to fund all of the grant

19 requests the COPS Office receives. Decl. of Andrew Dorr in Opposition to Plaintiff’s

20 Motion for Preliminary Injunction, filed Oct. 12, 2017 (Doc. 33-1), at ¶ 12 (“Dorr.

21 Decl.”). The COPS Office has therefore created a scoring system tailored to the statutory

22 purpose of awarding funds to communities that most need federal assistance to engage in

23 community policing, and have the best plans for promoting that type of police work.

24 Thus, the Office awards points based on criteria falling in three categories: Fiscal Health,

25 Crime, or Community Policing. Id. ¶ 20. “Community Policing” generally accounts for

26 50% of the score, “Crime” for 30%, and “Fiscal Health” for 20%. Id.

27

The COPS Office also generally allocates “additional consideration”—in the form

28 of extra points under its scoring system—for specified reasons. Applicants are directed

3
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Case 2:17-cv-07215-R-JC Document 49-1 Filed 11/21/17 Page 11 of 33 Page ID #:1055

1 to select particular “community policing problems or focus areas” that their proposed

2 program will address, and the Office awards extra points to communities that select a

3 focus area that is prioritized for that year. See Larracas Decl., Ex. C, 2016 CHP

4 Application Guide at 21; Dorr. Decl. ¶ 18 (“[T]he application system assigns extra points

5 for applications that are focused on that year’s priority areas.”). The COPS Office has in

6 prior years also provided extra points under its scoring system to communities affected

7 by an unanticipated catastrophic event, reflecting the heightened needs of such

8 communities. Larracas Decl., Ex. C, 2016 CHP Application Guide at 21.

9

Congress has also authorized one basis for the COPS Office to award preferential

10 consideration that does not relate to an applicant’s need for, or use of, COPS grant funds.

11 Section 10381(c) of the statute provides that DOJ “may” give an application “preferential

12 consideration” if the applicant is in a state that has in effect particular types of laws that

13 grant leniency to victims of human trafficking. 34 U.S.C. § 10381(c)(2), (3). The COPS

14 Office, acting on this express authorization, generally provides extra points to applicants

15 in states with these congressionally-favored human trafficking laws. See Larracas Decl.

16 Ex. C, 2016 CHP Application Guide at 21.

17

The COPS Office does not disclose the weight that individual factors are given in

18 scoring, or the relative weight given to additional considerations in the overall scoring

19 system. See id.; Dorr Decl. ¶ 15.

20

B. Defendants’ Attempts to Use Federal Funds as a Weapon to Pressure

21

State and Local Governments to Participate in Federal Civil

22

Immigration Enforcement.

Early in his presidency, President Donald J. Trump declared that he would use

23

federal funds as a “weapon” to require state and local support for his federal civil

24

immigration enforcement policies.1 His Administration has sought to make good on this

25

announcement by conditioning federal grants on state and local enforcement of federal

26

27 1 Harriet Taylor, Trump to Fox News: “I May Defund California as ‘a weapon’ to fight 28 illegal immigration,” CNBC.com (Feb. 5, 2017), https://tinyurl.com/TaylorCNBC.

4
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Case 2:17-cv-07215-R-JC Document 49-1 Filed 11/21/17 Page 12 of 33 Page ID #:1056

1 civil immigration law. The Administration’s two prior attempts have thus far been

2 enjoined as unconstitutional; the latest is the subject of this motion.

3

On January 25, 2017, President Trump issued Executive Order 13768, directing the

4 Attorney General and Secretary of Homeland Security to withhold federal funds from

5 what he called “Sanctuary Jurisdictions.”2 On November 20, 2017, a federal district

6 court permanently enjoined Section 9(a) of the Executive Order, ruling that the order is

7 unconstitutional, because: (1) the Executive Branch is attempting to usurp authority that

8 belongs to Congress under the Spending Clause; (2) the order violates constitutional

9 limits on federal spending authority; (3) the order violates the Tenth Amendment’s

10 prohibition against commandeering local jurisdictions to administer a federal program;

11 (4) the order is unconstitutionally vague; and (5) the order violates requirements of due

12 process. Cty. of Santa Clara v. Donald J. Trump; City and Cty. of San Francisco v.

13 Trump, 2017 WL 5569835 (N.D. Cal. Nov. 20, 2017).

14

DOJ then launched another effort to condition federal funds for states and localities

15 on their participation in federal civil immigration enforcement, attempting to impose such

16 conditions on receipt of funding under the Edward Byrne Memorial Justice Assistance

17 Grants (“Byrne JAG”) program. Defendant Sessions announced in a press release that

18 Byrne JAG grants would be awarded only to cities and states that, inter alia, “allow

19 federal immigration access to detention facilities,” and “provide 48 hours notice before

20 they release an illegal alien wanted by federal authorities.” RJN Ex. B, DOJ, Office of

21 Public Affairs, Attorney General Sessions Announces Immigration Compliance

22 Requirements for Edward Byrne Memorial Justice Assistance Grant Programs (July 25,

23 2017). Again, this effort was rejected—by two different courts—as an overreach by DOJ

24 of its statutory authority. City of Chicago v. Sessions, 2017 WL 4081821 (N.D. Ill. Sept.

25

26 2 The White House Office of the Press Secretary, “Executive Order: Enhancing the Public

27

Safety on the Interior of the United States,” Whitehouse.gov (January 25, 2017), § 9(a), available at https://www.whitehouse.gov/the-press-office/2017/01/25/presidential-

28 executive-order-enhancing-public-safety-interior-united.

5
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Case 2:17-cv-07215-R-JC Document 49-1 Filed 11/21/17 Page 13 of 33 Page ID #:1057

1 15, 2017), appeal filed; City of Philadelphia v. Sessions, 2017 WL 5489476 (E.D. Pa.

2 Nov. 15, 2017).

3

Defendants now seek to use the COPS grant to pressure states and localities into

4 changing their laws and policies, and otherwise participating in federal civil immigration

5 enforcement. In the fiscal year (“FY”) 2017 application cycle for the COPS grant

6 program, the COPS Office added a “focus area” it called “Illegal Immigration.” The

7 Office described this focus area as involving “partnering with federal law enforcement to

8 combat illegal immigration,” including by participating in “287(g) partnerships” and

9 “honoring detainers.” Dorr Decl. ¶ 24; see also Larracas Decl. Ex. B, 2017 CHP

10 Application Guide at 27.3 Defendants did not just create this “Illegal Immigration”

11 category as an available use of COPS grant funds, but encouraged applicants to select it

12 by offering additional consideration in the form of extra points for that choice. See

13 Larracas Decl. Ex. B, 2017 CHP Application Guide at 27.

14

Defendants further stated in the Application Guide that “[a]dditional consideration

15 . . . may be given” to “applicants that partner with federal law enforcement to address

16 illegal immigration.” See id. at 27-28. Defendants offered no additional explanation of

17 this possibility until two months after the due date for grant applications. Then, in early

18

19 3 A “287(g) partnership” is a carefully limited and regulated statutory mechanism by

20 which state and local police officers can be authorized to act as immigration officers. See

21

8 U.S.C. § 1357(g)(1). “Honoring detainers,” though imprecise in its terminology, presumably refers to DHS’s practice of requesting state and local law enforcement to

22 detain individuals who otherwise would be released, so that DHS can decide whether to

23

take custody and then do so. See DHS, Form I-247A, Immigration Detainer-Notice of Action (2017). Courts have held municipalities liable for violating the Fourth

24 Amendment for “honoring detainers.” See, e.g., Ochoa v. Campbell, 2017 WL 3476777

25

at *7, *14 (E.D. Wash. July 31, 2017), appeal filed, No. 17-35679; Santoyo v. United States, 2017 WL 2896021 at **3-8 (W.D. Tex. June 5, 2017); Miranda-Olivares v.

26 Clackamas Cty., 2014 WL 1414305 at *11 (D. Or. Apr. 11, 2014); see also Morales v.

27

Chadbourne, 793 F.3d 208, 215-19 (1st Cir. 2015) (holding that detaining an individual pursuant to an immigration detainer without additional probable cause is a clearly

28 established violation of the Fourth Amendment).

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1 September 2017, the COPS Office sent an e-mail to applicants informing them that this

2 additional consideration would be available. See Larracas Decl. Ex. A, E-mail from

3 COPS Office (Sept. 7, 2017). The e-mail attached a certification form that would have to

4 be signed and returned within 12 days in order to qualify for the extra points.

5

Defendants called the form “Certification of Illegal Immigration Cooperation,” and

6 required it to be signed by the highest-ranking law enforcement official (e.g., police

7 chief) and government executive (e.g., mayor). Id.; see also id. Attachment 1. These

8 officials were required to certify versions of the “Access” and “Notice” requirements that

9 DOJ has been enjoined from enforcing as conditions on Byrne JAG grants. Specifically,

10 an applicant was required to certify that it had implemented, or would implement,

11 specific “rules, regulations, policies, and/or practices” relating to federal civil

12 immigration enforcement:

13

• “The applicant entity and/or its governing body has implemented or, before

14

drawing down grant funds if awarded, will implement rules, regulations, policies,

15

and/or practices that ensure that U.S. Department of Homeland Security (‘DHS’) personnel have access to any of the governing body’s correctional or detention

16

facilities in order to meet with an alien (or an individual believed to be an alien)

17

and inquire as to his or her right to be or to remain in the United States.” (the “Access Requirement”)

18

19

• “The applicant entity and/or its governing body has implemented or, before drawing down grant funds if awarded, will implement rules, regulations, policies,

20

and/or practices that ensure that any of the governing body’s correctional and

detention facilities provide advance notice as early as practicable (at least 48 hours,

21

where possible) to DHS regarding the scheduled release date and time of an alien

22

in the jurisdiction’s custody when DHS requests such notice in order to take

23

custody of the alien. This certification does not require holding an alien beyond his or her scheduled time of release.” (the “Notice Requirement”)

24

25 Id. Attachment 1.

26

DOJ recognized that the effect of these changes to the COPS program was to give

27 “additional consideration” to communities that “cooperate[d] with federal law

28 enforcement to address illegal immigration.” Id. at 1. The sole explanation for this

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1 change was a press statement that Defendant Sessions believes “[c]ities and states that

2 cooperate with federal law enforcement make all of us safer by helping remove

3 dangerous criminals from our communities,” and “jurisdictions with these policies in

4 place should be acknowledged for their commitment to ending violent crime, including

5 violent crime stemming from illegal immigration.” RJN Ex. D, DOJ, Office of Public

6 Affairs, Department of Justice Announces Priority Consideration Criteria for COPS

7 Office Grants (Sept. 7, 2017).

8

C. Los Angeles’ Applications for COPS Hiring Program Grant Funding.

9

Los Angeles has historically been a competitive applicant for COPS funds. The

10 City applied for CHP grants in 2012 and 2016, and obtained grant funding in both years.

11 Larracas Decl. ¶ 3. In 2016, Los Angeles received one of the highest scores out of more

12 than one thousand applications. Id. Ex. D, COPS Office, FY 2016 COPS Hiring Program

13 Applicant Rankings.

14

In its FY 2017 application, Los Angeles applied for $3.125 million in CHP

15 funds—the same amount it received in 2016—to support hiring officers for its

16 Community Safety Partnership (“CSP”) Program. Larracas Decl. Ex. E, Los Angeles

17 2017 CHP Application at 22. The CSP program is a paradigmatic community-oriented

18 policing program. It operates in selected public housing developments located

19 throughout the Los Angeles area. The CSP program deploys officers to implement

20 programs for at-risk youth, ensure safe passage on school routes, and build relationships

21 in the communities through neighborhood watch groups, quality of life committees, and

22 citizen-police enforcement teams. Id. at 12. In its application, Los Angeles identified

23 “Building Trust and Respect” as the focus of its grant-supported program. Id at 11.

24

The City did not attempt to create a different program, unrelated to community-

25 oriented policing, in order to select “Illegal Immigration” as its focus area and receive

26 extra points for its application. In addition to its commitment to using grant funds for the

27 community policing purposes Congress intended, Los Angeles has made a longstanding

28

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1 decision that it can best protect public safety by not participating in federal civil

2 immigration enforcement. Specifically, Los Angeles has implemented “policies and

3 practices designed to promote the public safety of all Los Angeles residents by

4 engendering cooperation and trust between members of the City’s many immigrant

5 communities and law enforcement.” Decl. of Michael Hyams ¶ 4. This includes the Los

6 Angeles Police Department’s longstanding policy that “restricts an officer from initiating

7 a police action with the objective of discovering a person’s immigration status, and also

8 prohibits arrest based solely on civil immigration status.” Id. ¶ 3.

9

Los Angeles also did not submit a signed “Certification of Illegal Immigration

10 Cooperation” in the twelve days it was allotted. Los Angeles was unable to determine in

11 that time whether DOJ would consider its detention facility practices to comply with the

12 Access and Notice Requirements, or whether a “Certification of Illegal Immigration

13 Cooperation,” bearing the signatures of the Mayor and Chief of the LAPD, would erode

14 the community trust Los Angeles has long fostered. Hyams Decl. ¶ 7. Thus, because

15 Los Angeles was unwilling to use a COPS grant in order to “partner[] with federal law

16 enforcement to address illegal immigration,” Larracas Decl. Ex. B, 2017 CHP

17 Application Guide at 28, or to complete a “Certification of Illegal Immigration

18 Cooperation,” the deck was doubly stacked against the City in the competition for COPS

19 funds.

20

An official in the COPS Office has made the unsupported assertion that Los

21 Angeles would not have received an FY 2017 grant even in the absence of the

22 immigration-related considerations. Dorr Decl. ¶ 32. There is every reason to believe,

23 however, that the COPS Office will continue to disfavor cities like Los Angeles in

24 subsequent award decisions. Indeed, in announcing FY 2017 awards, DOJ advertised

25 that 80% of successful applicants completed the “Certification of Illegal Immigration

26 Cooperation.” See RJN Ex. H, November Press Release. The City therefore seeks relief

27 to restore an equal playing field for future grant cycles. Specifically, Los Angeles seeks a

28 declaration and an injunction preventing DOJ from giving applicants extra points if they

9
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1 adopt particular laws and policies supporting “Illegal Immigration Cooperation,” and if

2 they commit to a grant-supported program involving partnership with federal authorities

3 in combatting “Illegal Immigration.”4

4 III. STANDARD OF REVIEW

5

Rule 56 requires summary judgment be granted for the moving party where the

6 evidence, viewed in the light most favorable to the nonmoving party, shows that there is

7 no genuine issue as to any material fact, and that the moving party is entitled to judgment

8 as a matter of law. See Fed. R. Civ. P. 56(c); Tarin v. Cty. of Los Angeles, 123 F.3d

9 1259, 1263 (9th Cir. 1997), superseded by statute on other grounds. Partial summary

10 judgment may be granted on particular claims. Fed. R. Civ. P. 56(a).

11

Summary judgment is generally appropriate to decide challenges to administrative

12 agency action that turn on the lawfulness of that action or whether, on the existing

13 administrative record, the action is arbitrary and capricious. See, e.g., City & Cty. of San

14 Francisco v. United States, 130 F.3d 873, 877 (9th Cir. 1997) (“In reviewing an

15 administrative agency decision, summary judgment is an appropriate mechanism for

16

17 4 Los Angeles’ standing to bring this action is based on the uneven playing field

18 Defendants created by favoring or disfavoring applicants on the basis of improper

19

immigration-related considerations. This is precisely the sort of competitive injury that has “often been recognized as grounds for standing.” Bullfrog Films, Inc. v. Wick, 847

20 F.2d 502, 507 (9th Cir. 1988); see also Preston v. Heckler, 734 F.2d 1359, 1365 (9th Cir.

21

1984); Ne. Fla. Chapter of Associated Gen. Contractors of America v. Jacksonville, 508 U.S. 656, 664-669 (1993) (summarizing competitive harm standing cases); Regents of the

22 Univ. of Cal. v. Bakke, 438 U.S. 265, 281 n.14 (1978).

23

The agency’s apparent decision not to award Los Angeles a grant in the 2017 cycle does not render Los Angeles’ claims moot. The important issues raised by the City’s

24 Complaint are capable of repetition in a manner that evades meaningful judicial review.

25

See Kingdomware Technologies, Inc. v. United States, 136 S. Ct. 1969, 1976 (2016); Wright & Miller, Fed. Prac. & Proc. § 3533.8 (noting the “wide array of circumstances

26 [that] have led courts to deny mootness” as capable of repetition yet evading review,

27

including “disputes over the terms or awards of government contracts or grants [which] often involve short contract periods and repeat bidders”).

28

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1 deciding the legal question of whether the agency could reasonably have found the facts

2 as it did.” (citation omitted)).

3 IV. ARGUMENT

4

Defendants have transformed the COPS program from the one that Congress

5 enacted. Defendants are giving extra points in the application process to applicants that

6 certify that they have in place particular regulations or policies reflecting what

7 Defendants call “Illegal Immigration Cooperation.” And Defendants are authorizing the

8 use of grant funds for programs focusing not on community-oriented policing but on civil

9 immigration enforcement—a job that belongs to the federal government—and giving

10 extra points to applicants willing to adopt this focus. Together, Plaintiff refers to these as

11 the “Challenged Considerations.”

12

The Challenged Considerations are unlawful. First, they exceed the authority that

13 Congress delegated to DOJ and thus violate the separation of powers. Second, even if

14 Congress had delegated to DOJ the authority to disfavor communities like Los Angeles

15 on the basis of the Challenged Considerations, they would not pass constitutional muster

16 under the Spending Clause. Third, DOJ’s actions are arbitrary and capricious.

17

A. The Challenged Considerations Are Ultra Vires and Violate the

18

Separation of Powers.

19

An agency “has no power to act . . . unless and until Congress confers power upon

20 it.” Louisiana Pub. Serv. Comm’n v. FCC, 476 U.S. 355, 374 (1986). The power

21 conferred on DOJ in this case is to administer the COPS grant program to support state

22 and local governments in hiring police officers to engage in community-oriented

23 policing. See 34 U.S.C. § 10381. That authority certainly requires DOJ to exercise a

24 degree of discretion in determining how best to allocate the limited resources Congress

25 appropriates for this statutory purpose. But that discretion is not limitless. “When

26 Congress limits the purpose for which a grant can be made,” as it did with the COPS

27 program, “it can be presumed that it intends that the dispersing agency make its

28 allocations based on factors solely related to the goal of implementing the stated statutory

11
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1 purposes in a reasonable fashion, rather than taking irrelevant or impermissible factors

2 into account.” Robbins v. Reagan, 780 F.2d 37, 55, 48 (D.C. Cir. 1985) (emphasis

3 added).

4

DOJ has done exactly what it may not do: it has changed the COPS program to

5 focus on irrelevant and impermissible factors. There are two fundamental problems with

6 DOJ’s actions. First, by giving extra points to communities that certify specified forms

7 of “partnership” with federal civil immigration authorities, DOJ is attempting to pressure

8 state and local governments to change their laws and policies, in a way that has nothing

9 to do with their use of, or need for, grant funds. Second, by authorizing grant recipients

10 to use funds to focus on “illegal immigration,” and then awarding extra points to

11 communities that adopt that focus, DOJ is diverting COPS funds away from their

12 statutorily-assigned purpose and disfavoring communities that are unwilling to participate

13 in the diversion.

14

The text and structure of the COPS statute make clear that DOJ is not faithfully

15 administering the COPS grant program but unilaterally altering it. Indeed, it is striking

16 that DOJ announced this year’s grant awards by boasting of the importance of its

17 immigration-related considerations—rather than any achievement having to do with

18 community-oriented policing. RJN Ex. H, November Press Release. DOJ’s actions are

19 “an improper attempt to wield Congress’s exclusive spending power” and “a violation of

20 the Constitution’s separation of powers principles.” Cty. of Santa Clara v. Donald J.

21 Trump; City and Cty. of San Francisco v. Trump, 2017 WL 5569835 at *12.

22

1. DOJ Cannot Use COPS Grant Decisions to Pressure State and

23

Local Governments to Change Their Regulations, Policies, and

24

Practices.

25

DOJ favors COPS applications from state and local governments that are willing

26 and able to certify particular forms of “partnership” with federal civil immigration

27 enforcement efforts. This “partnership” has nothing to do with how the COPS funding

28 will actually be used. The Access and Notice Requirements, which local law

12
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1 enforcement are asked to adopt in their detention operations, do not concern the hiring of

2 local police officers to engage in community oriented policing. The requirement of

3 adopting such regulations and policies is focused only on whether and how local

4 governments partner with federal immigration officers performing federal civil

5 immigration enforcement duties. Those duties fall squarely within the province of the

6 federal government, not states or localities. Arizona v. United States, 132 S. Ct. 2492,

7 2498 (2012) (“The Government of the United States has broad, undoubted power over the

8 subject of immigration and the status of aliens.”); Valle de Sol Inc. v. Whiting, 732 F.3d,

9 1006, 1023 (9th Cir. 2013) (“[p]ower to regulate immigration is unquestionably exclusive

10 federal power” (quoting DeCanas v. Bica, 424 U.S. 351, 354 (1976)). DOJ is thus using

11 its control over funds appropriated to support the hiring of police officers in order to

12 advance an unrelated policy agenda. See Philadelphia, 2017 WL 5489476 at *48

13 (“Immigration law has nothing to do with the enforcement of local criminal laws.”). The

14 COPS statute makes clear that this action oversteps DOJ’s delegated authority.

15

Congress specifically defined the circumstances in which “the Attorney General

16 may give preferential consideration” to COPS applicants. 34 U.S.C. § 10381(c). In order

17 for this authorization to make any sense, the agency cannot be permitted to invent

18 entirely new grounds on which to award preferential treatment. Otherwise, the statutory

19 provision allowing limited grounds for preference would be wholly superfluous. See

20 Chubb Custom Ins. Co. v. Space Systems/Loral, Inc., 710 F.3d 946, 966 (9th Cir. 2013)

21 (“It is a well-established rule of statutory construction that courts should not interpret

22 statutes in a way that renders a provision superfluous.”).

23

Significantly, the limited authorization to give preferential consideration is the only

24 place in the statute where Congress contemplates DOJ looking beyond the actual need

25 for, or use of, the grant funds involved, and awarding points simply to encourage states to

26 pass laws or enact policies or practices that the federal government favors. Thus, the

27 Attorney General “may” give preferential consideration for a COPS “applicant in a State

28 that has in effect a law” providing for lenient treatment of human trafficking victims. See

13
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1 34 U.S.C. § 10381(c)(2)-(3). In providing that DOJ “may” give preferential

2 consideration for this carefully defined reason, Congress made clear that the agency does

3 not have blanket authority to use COPS funding to encourage state and local governments

4 to make any law or policy change DOJ desires. Because the list of preferential factors

5 the Attorney General may consider makes no mention of immigration enforcement at all,

6 Congress cannot be said to have allowed the Attorney General to give preferential

7 consideration to state and local governments that are willing to adopt laws, regulations,

8 ordinances, or policies that support federal civil immigration enforcement efforts.

9

In our federal system, it is a serious matter when the federal government attempts

10 to pressure a state or local government to change its laws and policies. This is precisely

11 the type of action requiring a “clear statement” from Congress, to ensure that the national

12 legislature—not unaccountable bureaucrats—“in fact faced, and intended to bring into

13 issue, the critical matters involved.” Gregory v. Ashcroft, 501 U.S. 452, 461 (1991).

14 Thus, in the grant context, courts do not allow agencies to invent their own conditions on

15 state and local governments, but require “unambiguous statutory expression of

16 congressional intent to condition the States’ receipt of federal funds in a particular

17 manner.” Com. Va., Dep’t of Educ. v. Riley, 106 F.3d 559, 566 (4th Cir. 1997) (en banc)

18 (adopting the dissenting panel opinion of Luttig, J.), superseded by statute. Congress

19 paid heed to these federalism principles in spelling out the limited circumstances in

20 which DOJ may favor a grant applicant because of the unrelated policies it has in effect.

21 It would subvert this canon of construction, in addition to the plain text of the statute

22 itself, to read into the law a broader authorization for DOJ to give preferential treatment

23 to jurisdictions with laws and policies the agency prefers—and to disfavor those that are

24 unwilling to change their laws and policies to meet DOJ’s demands.

25

Congress further recognized that seeking to change the policies of state and local

26 law enforcement is especially sensitive. Thus, Congress provided that nothing in DOJ’s

27 grant-making authorities (or any other Act) “shall be construed to authorize any

28 department, agency, officer, or employee of the United States to exercise any direction,

14
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1 supervision, or control over any police force or any other criminal justice agency of any

2 State or any political subdivision thereof.” 34 U.S.C. § 10228(a). Here, DOJ seeks to

3 direct, supervise, and control local police forces by pressuring them to change their

4 policies and operations in order to compete for valuable federal resources on an even

5 playing field. Congress’s clear reason for including this rule of construction was its

6 recognition that DOJ may attempt to do exactly what it is now doing—using its

7 stewardship of federal grant funds, and the leverage that comes with it, to tell state and

8 local law enforcement what unrelated policies they should adopt.

9

Finally, although the text of the statute is more than sufficient to conclude that DOJ

10 lacks this authority, the legislative history confirms that conclusion. The House Report

11 listed the types of factors Congress expected DOJ to consider in making grant decisions:

12 “the needs of areas with high crime rates, low officer to population ratios, understaffing

13 of law enforcement agencies in relation to the size of the geographic areas for which they

14 are responsible, high unemployment and economic dislocation rates that may contribute

15 to increased crime problems, and other relevant trends.” H.R. Rep. 103-324, at 10. What

16 is notable about this list is that every item has to do with the need for police officers on

17 the street to combat crime, and thus falls squarely within the statutory purposes of the

18 COPS program. Not one suggests that DOJ could use COPS funds as a tool to extract

19 any policy commitments it wishes, including relating to civil immigration enforcement,

20 from state and local governments.

21

It is thus clear that DOJ lacks authority to award extra points to COPS applicants

22 that adhere to the “partnership” policies DOJ demands. DOJ’s contrary view—that it can

23 discriminate against COPS applicants that are unwilling to change their laws and policies

24 to accord with the agency’s preferences—lacks any limiting principle. Today, the agency

25 is using federal funds to promote state and local governments adopting particular laws

26 and policies concerning federal civil immigration enforcement. The next administration

27 might wish to use federal grant funds to encourage states to abolish capital punishment,

28 or to resort to capital punishment more frequently. To stop prosecuting marijuana

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1 offenses, or to prosecute marijuana offenses more vigorously. None of this fits within the

2 role Congress assigned to DOJ in administering the COPS grant, a program designed to

3 support the hiring of police officers to engage in community-oriented policing. Congress

4 did not authorize DOJ to take advantage of that administrative role to impose the

5 agency’s own policy agenda on state and local governments, whatever that agenda

6 happens to be.

7

2. DOJ Cannot Redirect COPS Funds Toward Civil Immigration

8

Enforcement and Disfavor Communities That Intend to Use

9

COPS Funds to Engage in Community-Oriented Policing.

DOJ also favors COPS applicants willing to use their grant funds to engage in civil

10

immigration enforcement. Congress not only excluded immigration as a ground for

11

preferential consideration, but it did not consider state and local participation in civil

12

immigration enforcement to be even an appropriate use of COPS funding at all. The

13

agency’s attempt to redirect COPS funding to promote federal civil immigration

14

enforcement, and then to favor state and local governments willing to participate in that

15

enforcement, is thus doubly flawed.

16

DOJ has taken the position that the only statutory authority for the COPS Hiring

17

18 Program is paragraphs (b)(1) and (2) of 34 U.S.C. § 10381. (See Doc. 33 at 3). These

paragraphs expressly limit DOJ’s authority to support the hiring of police officers “for

19

deployment in community-oriented policing.” 34 U.S.C. § 10381(b)(1), (2). Congress

20

did not include the “community-oriented” modifier as surplusage. It did not intend for

21

grant funding to be used for any police activity DOJ wishes to support at a given time,

22

23 but rather for a subset of that work: community-oriented policing.

DOJ itself defines community-oriented policing as “begin[ning] with a

24

25 commitment to building trust and mutual respect between police and communities.” See

RJN Ex. A, COPS Office, “About”. Law enforcement veterans, including the chiefs of

26

police of the country’s major cities, have concluded that state and local police

27

participation in civil immigration enforcement “undermines the trust and cooperation

28

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1 with immigrant communities which are essential elements of community oriented

2 policing.” See RJN Ex. E, Major Cities Chiefs Association, Immigration Policy

3 (emphasis added). This Court need not go so far as to agree with that view. But given

4 the widespread recognition that civil immigration enforcement is in tension with

5 community-oriented policing, it is highly unlikely that Congress intended funds

6 appropriated for community-oriented policing to be used to subsidize state and local

7 participation in civil immigration enforcement.

8

Indeed, it is difficult to see how the particular activities DOJ wishes to subsidize

9 bear any connection to “community-oriented policing.” The agency has said, for

10 example, that it intends to use the COPS program to fund “287(g) partnerships,” under

11 which state and local police are empowered to act as immigration officers. RJN Ex. F,

12 DOJ FY 2018 COPS Office Congressional Justification at 31; see 8 U.S.C. § 1357(g)(1).

13 Carrying out civil immigration raids in support of federal enforcement efforts bears no

14 logical connection to “building trust and mutual respect between police and

15 communities.” Neither does “honoring detainers,” a practice that concerns a state or

16 local government’s internal detention operations, and has led to several cases holding

17 municipalities to be in violation of the Fourth Amendment. See, e.g., Ochoa, 2017 WL

18 3476777 at *7, *14; Santoyo, 2017 WL 2896021 at **3-8; Miranda-Olivares, 2014 WL

19 1414305 at *11. Unless all policing can be characterized as “community-oriented

20 policing”—turning Congress’s carefully chosen words into surplusage—this is not an

21 authorized use of COPS funds.

22

The broader structure of the statute further demonstrates that DOJ is not authorized

23 to redirect COPS funding toward civil immigration enforcement. Congress enacted a

24 detailed list of twenty-two purposes that the COPS grant, as “a single grant program,”

25 could be used to advance. See 34 U.S.C. § 10381(a), (b)(1)-(22). These statutory

26 purposes highlight, among other things, crime control and terrorism. See id.

27 § 10381(b)(4), (5), (8), (9), (11), (12), (15). But civil immigration enforcement is notably

28 absent from this long list of congressionally authorized purposes of COPS grants. If

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1 Congress had reached the counterintuitive conclusion that funds for “community-oriented

2 policing” can be spent to promote state and local participation in federal civil

3 immigration enforcement, surely it would have given some hint of that somewhere in a

4 statute that is otherwise quite specific.

5

DOJ’s view is not just at odds with the COPS statute but with immigration laws as

6 well. Congress has mandated that state and local participation in civil immigration

7 enforcement through 287(g) partnerships be undertaken “at the expense of the State or

8 political subdivision.” 8 U.S.C. § 1357(g)(1) (emphasis added). DOJ is contravening

9 that clear mandate: it is offering federal funds, through the COPS program, to sponsor

10 287(g) partnerships, even though Congress directed that such partnerships be at state and

11 local expense. And it does so in order to fund partnerships with the federal government

12 that have nothing to do with “community-oriented policing.”5

13

DOJ’s decision to give extra points in the COPS application process to

14 communities that are willing to focus on “illegal immigration” with their COPS funds

15 only compounds its error. Because civil immigration enforcement is not one of the

16 purposes Congress recognized as relevant to community-oriented policing, DOJ plainly

17 lacks authority to disfavor communities unwilling to participate in this diversion of COPS

18 resources.

19

B. The Challenged Considerations Violate the Spending Clause Because

20

They Are Not Reasonably Related to Congress’s Purpose of Promoting

21

Community-Oriented Policing.

The Challenged Considerations operate as a type of condition on COPS funding.

22

If a community is unwilling or unable to certify that it has in place certain laws or

23

policies demonstrating “partnership” with federal civil immigration authorities, it is less

24

25

26 5 To the extent DOJ means to sponsor state and local governments to engage in civil

27

immigration enforcement without 287(g) agreements, it is exceeding Congress’s “limit[s]” on the “circumstances in which state officers may perform the functions of an

28 immigration officer.” Arizona, 132 S. Ct. at 2506.

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1 likely to get the grant. Likewise, if a community is unwilling to pledge to use its COPS

2 award to focus on “illegal immigration,” it is less likely to get the grant. In at least some

3 cases, a community’s unwillingness or inability to comply with the Challenged

4 Considerations will be the difference between receiving a grant and not receiving a grant.

5 In fact, DOJ has emphasized that the vast majority of successful COPS applicants for FY

6 2017 certified compliance with the Notice and Access Requirements, demonstrating how

7 important that additional consideration was. See RJN Ex. H, November Press Release.

8

Accordingly, even if DOJ had statutory authority to adopt these funding

9 conditions—which it does not—the agency would still need to comply with constitutional

10 restrictions in exercising that authority. See S. Dakota v. Dole, 483 U.S. 203, 207-09

11 (1987). The Challenged Considerations violate at least one such restriction.

12

An exercise of Spending Clause authority is unconstitutional if it is not

13 “reasonably related to the articulated goal” of the grant program Congress established.

14 Nevada v. Skinner, 884 F.2d 445, 447 (9th Cir. 1989). Here, the program Congress

15 established is concerned with hiring police officers to be deployed in community-oriented

16 policing. 34 U.S.C. § 10381(b)(1), (2); see also id. § 10381(b)(1)-(22) (identifying

17 twenty-two authorized purposes for the “single grant program” Congress created). As the

18 COPS Office itself recently explained, the goal of the program is to “advanc[e] public

19 safety through the implementation of community policing strategies,” which “entails

20 developing partnerships between law enforcement agencies and the communities they

21 serve.” RJN Ex. F, DOJ FY 2018 COPS Office Congressional Justification at 4.

22

The Challenged Considerations are not at all related to this fundamental goal. See

23 Philadelphia, 2017 WL 5489476 at *48 (concluding that “the argument that enforcement

24 of federal immigration laws is related to this objective [of enhancing local criminal

25 justice under a different law enforcement assistance grant] is unsustainable”). Whether

26 or not a community’s regulations, policies, and practices provide the access to detention

27 facilities that DOJ demands, or the notice of a detainee’s release time that DOJ demands,

28 has nothing to do with its hiring of police officers to develop better “partnerships between

19
CITY OF LOS ANGELES’ MEMORANDUM IN SUPPORT OF MOTION FOR PARTIAL SUMMARY JUDGMENT

Case 2:17-cv-07215-R-JC Document 49-1 Filed 11/21/17 Page 27 of 33 Page ID #:1071

1 law enforcement agencies and the communities they serve.” See supra 12-16. Neither

2 does developing a program to assist federal authorities in civil immigration enforcement

3 have anything to do with community-oriented policing. See supra 16-18. Indeed, there

4 is no mention of civil immigration enforcement in the COPS statute—an omission that is

5 especially conspicuous in light of Congress’s detailed list of twenty-two authorized

6 purposes of the grant program. See 34 U.S.C. § 10381(b)(1)-(22); see also Schneider v.

7 Chertoff, 450 F.3d 944, 954 (9th Cir. 2006) (“[I]t is a well-established maxim of statutory

8 interpretation that the expression of one thing is the exclusion of another.”).

9

Put simply, Defendants cannot show any reasonable relationship between its new

10 immigration-related considerations and the express goals of the COPS program. Under

11 Dole, DOJ cannot penalize COPS applicants on the basis of these unrelated factors.6

12

C. The Challenged Considerations Are Invalid Under the Administrative

13

Procedure Act.

14

Agency actions must be set aside under the Administrative Procedure Act if they

15 are “arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with

16 law.” 5 U.S.C. § 706(2)(A). For the reasons noted above, the Challenged Considerations

17 are not in accordance with law. They also cannot survive scrutiny under the arbitrary and

18 capricious standard.

19

20

21 6 The Notice and Access Requirements that DOJ articulated in its September 7, 2017 e-

22 mail also fail to meet the requirement that conditions attached to grant funding be

23

unambiguous on their face. See Pennhurst State Sch. & Hosp. v. Halderman, 451 U.S. 1, 17 (1981); Dole, 483 U.S. at 207-09. Implicitly acknowledging this defect, DOJ has

24 taken the position in this lawsuit that it does not understand those Requirements to

25

“forbid a jurisdiction from informing detainees, where required by law, that they may choose not to meet with federal immigration authorities, or to require that a jurisdiction

26 notify DHS before the release of a noncitizen under short-term detention whose release

27

time is unknown.” Opp. to PI at 20 (Doc. 33) (citing Dorr Decl. ¶ 26). Los Angeles does not intend to press the ambiguity defect in the Notice and Access Requirements so long

28 as DOJ adheres to its representations.

20
CITY OF LOS ANGELES’ MEMORANDUM IN SUPPORT OF MOTION FOR PARTIAL SUMMARY JUDGMENT

Case 2:17-cv-07215-R-JC Document 49-1 Filed 11/21/17 Page 28 of 33 Page ID #:1072

1

In subjecting an agency decision to arbitrary-and-capricious review, the Court

2 “must consider whether the decision was based on a consideration of the relevant factors

3 and whether there has been a clear error of judgment.” San Luis & Delta-Mendota Water

4 Auth. v. Jewell, 747 F.3d 581, 601 (9th Cir. 2014) (citation omitted); Az. Cattle Growers’

5 Ass’n v. U.S. Fish & Wildlife, Bureau of Land Mgmt., 273 F.3d 1229, 1236 (9th Cir.

6 2001) (“[W]e carefully review the record to ensure that agency decisions are founded on

7 a reasoned evaluation of the relevant factors.” (citation omitted)).

8

Here, there is no evidence in the record to suggest that DOJ adopted the

9 Challenged Considerations following any reasoned evaluation at all, nor is there any

10 support for the agency’s attempt to tie federal civil immigration enforcement to

11 Congress’s community policing goals in establishing and designing the COPS grant

12 program. Indeed, before announcing its new policy, or even at the time of its

13 announcement, DOJ did not offer any justifiable basis for how that policy advances the

14 purposes of the COPS program.

15

Since then, DOJ has made vague allusions about how city and state cooperation

16 with federal law enforcement “make all of us safer by helping remove dangerous

17 criminals from our communities,” including by ending “violent crime stemming from

18 illegal immigration.” See RJN Ex. D, DOJ, Office of Public Affairs, Department of

19 Justice Announces Priority Consideration Criteria for COPS Office Grants (Sept. 7,

20 2017). But these conclusory, post-hoc justifications have nothing to do with the statute

21 DOJ purports to be administering. In other words, DOJ has articulated no justification at

22 all for how the extra points it is awarding for immigration-related reasons have anything

23 to do with its statutory responsibility to allocate funds for use in community-oriented

24 policing.

25

DOJ’s thin justifications in any event do not amount to the sort of tangible

26 evidence and reasoned justification required to survive arbitrary-and-capricious review.

27 See Burlington Truck Lines, Inc. v. United States, 371 U.S. 156, 168-69 (1962) (stating

28 that post-hoc rationalizations are irrelevant as “an agency’s discretionary order [must] be

21
CITY OF LOS ANGELES’ MEMORANDUM IN SUPPORT OF MOTION FOR PARTIAL SUMMARY JUDGMENT

Case 2:17-cv-07215-R-JC Document 49-1 Filed 11/21/17 Page 29 of 33 Page ID #:1073

1 upheld, if at all, on the same basis articulated in the order by the agency itself”);

2 Arrington v. Daniels, 516 F.3d 1106, 1111-12 (9th Cir. 2008) (holding that even when an

3 agency had discretion to promulgate a rule, the rule was arbitrary and capricious because

4 “the administrative record contains no rationale explaining the Bureau’s decision”).

5 Indeed, the agency has not pointed to any actual evidence to support its implied premise

6 that undocumented immigrants or other non-citizens commit violent crimes at higher

7 rates than the general population, or to indicate that the investigations of federal civil

8 immigration violations facilitated by the Challenged Considerations are focused on

9 individuals involved in violent crime. See Philadelphia, 2017 WL 5489476 at *32

10 (concluding that DOJ’s imposition of a similar immigration enforcement condition on the

11 Byrne JAG program was arbitrary and capricious where the court could not “find a link

12 between, on one hand, imposing the Certification Condition, and on the other hand,

13 ‘protect[ing] the public and reduc[ing] crime and violence’” (alterations in original)); see

14 also Tongatapu Woodcraft Hawaii, Ltd. v. Feldman, 736 F.2d 1305, 1308 (9th Cir. 1984)

15 (“We have held it an abuse of discretion for the [INS] to act if there is no evidence to

16 support the decision . . . .”) (internal citation and quotation marks omitted).

17

In fact, the little evidence the Attorney General has cited in other contexts belies

18 his claim that there is a relationship between so-called “sanctuary” policies and violent

19 crime, as that evidence indicates no such relationship at all, while other studies show an

20 inverse relationship. See RJN Ex. C, Nick Roll, Correcting Jeff Sessions, Inside Higher

21 Ed (July 17, 2017); see also id. at Ex. G, Contrary to Trump’s Claims, Immigrants Are

22 Less Likely to Commit Crimes, N.Y. Times (Jan. 26, 2017).7 These studies demonstrate

23 that, not only does the agency lack any reasoned explanation for implementing the

24 Challenged Considerations, but also that it failed to consider relevant and available

25 evidence before announcing its new policy. See Motor Vehicle Mfrs. Ass’n of U.S., Inc.

26

27 7 Los Angeles introduces these articles to demonstrate the information that was publicly 28 available at the time DOJ decided to implement the Challenged Considerations.

22
CITY OF LOS ANGELES’ MEMORANDUM IN SUPPORT OF MOTION FOR PARTIAL SUMMARY JUDGMENT

Case 2:17-cv-07215-R-JC Document 49-1 Filed 11/21/17 Page 30 of 33 Page ID #:1074

1 v. State Farm Mut. Auto Ins. Co., 463 U.S. 29, 43 (1983) (“[A]n agency rule would be

2 arbitrary and capricious if the agency . . . offered an explanation for its decision that runs

3 counter to the evidence before the agency.”).

4

The irony of Defendants’ position is that DOJ’s policy actually undermines public

5 safety. It deprives states and localities of critical funds needed to hire new police

6 officers, or alternatively, forces them to adopt policies that erode the trust they have

7 worked hard to cultivate. Either way, the Challenged Considerations work against the

8 purposes Congress had in mind when it created the COPS program, further demonstrating

9 that the agency failed to adequately consider all relevant factors before announcing its

10 new preferential criteria.

11

D. The Court Should Enter a Permanent Injunction.

12

Because the Challenged Considerations are unlawful, this Court should

13 permanently enjoin Defendants from considering them in connection with any future

14 evaluation of COPS grant applications. A court may grant a permanent injunction if the

15 moving party demonstrates:

16

(1) that it has suffered an irreparable injury; (2) that remedies

17

available at law, such as monetary damages, are inadequate to

18

compensate for that injury; (3) that, considering the balance of hardships between the plaintiff and defendant, a remedy in

19

equity is warranted; and (4) that the public interest would not be

20

disserved by a permanent injunction.

21 Monsanto Co v. Geertson Seed Farms, 561 U.S. 139, 157-58 (2010); accord Sierra

22 Forest Legacy v. Sherman, 646 F.3d 1161, 1184 (9th Cir. 2011). All four factors are met

23 here.

24

First, it is well-established that “[a] rule putting plaintiffs at a competitive

25 disadvantage constitutes irreparable harm.” Int’l Franchise Ass’n, Inc. v. City of Seattle,

26 803 F.3d 389, 411 (9th Cir. 2015). Absent an injunction, Los Angeles will be at a

27 competitive disadvantage, and thus suffer irreparable harm, in future grant cycles. The

28 fact that DOJ used the Challenged Considerations in violation of the Constitution further

23
CITY OF LOS ANGELES’ MEMORANDUM IN SUPPORT OF MOTION FOR PARTIAL SUMMARY JUDGMENT

Case 2:17-cv-07215-R-JC Document 49-1 Filed 11/21/17 Page 31 of 33 Page ID #:1075

1 confirms the existence of irreparable harm. See Monterey Mechanical Co. v. Wilson, 125

2 F.3d 702, 715 (9th Cir. 1997) (“[A]n alleged constitutional infringement will often alone

3 constitute irreparable harm.”).

4

Second, monetary damages cannot adequately remedy the competitive injury Los

5 Angeles has suffered. The only way to prevent future harm is to ensure Los Angeles can

6 compete on an even playing field in future grant cycles. Moreover, the Ninth Circuit has

7 held that a permanent injunction is an appropriate remedy for the government’s unlawful

8 allocation of funds. See Planned Parenthood Arizona Inc. v. Betlach, 727 F.3d 960, 975

9 (9th Cir. 2013) (granting a permanent injunction against Arizona’s ultra vires condition

10 on Medicaid reimbursement).

11

Third, the balance of equities weighs strongly in favor of granting a permanent

12 injunction. The City has a strong interest in protecting itself against unwarranted federal

13 pressure that the City change its long-held views on the public safety dangers of

14 enmeshing local law enforcement in federal civil immigration enforcement. See Hyams

15 Decl. ¶¶ 3-5. It also has a related interest in maintaining the trust and cooperation of Los

16 Angeles residents to effectively police local communities and promote public safety

17 amongst some of the City’s most vulnerable residents. In contrast, the government has

18 no legitimate interest in awarding funds on the basis of unconstitutional factors. For

19 similar reasons, an injunction is in the public interest, in addition to the fact that it is

20 “always in the public interest” to issue an injunction in order to “prevent the violation of

21 a party’s constitutional rights.” Melendres v. Arpaio, 695 F.3d 990, 1002 (9th Cir. 2012).

22 V. CONCLUSION

23

For the foregoing reasons, the Court should grant partial summary judgment to the

24 City of Los Angeles as to each of its claims concerning the COPS grant program (Counts

25 Four, Five, and Six), and enter final judgment pursuant to Rule 54(b) on those claims.

26 The Court should declare that the Challenged Considerations are (1) ultra vires and a

27 violation of the Separation of Powers, (2) in violation of the Spending Clause, and (3) an

28 arbitrary and capricious agency action in violation of the Administrative Procedure Act.

24
CITY OF LOS ANGELES’ MEMORANDUM IN SUPPORT OF MOTION FOR PARTIAL SUMMARY JUDGMENT

Case 2:17-cv-07215-R-JC Document 49-1 Filed 11/21/17 Page 32 of 33 Page ID #:1076
1 The Court should further enjoin Defendants from using the Challenged Considerations in 2 making COPS grant determinations in future grant cycles. 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28
25
CITY OF LOS ANGELES’ MEMORANDUM IN SUPPORT OF MOTION FOR PARTIAL SUMMARY JUDGMENT

Case 2:17-cv-07215-R-JC Document 49-1 Filed 11/21/17 Page 33 of 33 Page ID #:1077

 </s> Case 2:17-cv-07215-R-JC Document 54 Filed 01/12/18 Page 1 of 36 Page ID #:1712

1 CHAD A. READLER
2 Acting Assistant Attorney General SANDRA R. BROWN
3 United States Attorney
4 JOHN R. TYLER Assistant Director
5 W. SCOTT SIMPSON (Va. Bar #27487)
6 Senior Trial Counsel Department of Justice, Room 7210
7 Civil Division, Federal Programs Branch
8 Post Office Box 883 Washington, D.C. 20044
9 Telephone: (202) 514-3495
10 Facsimile: (202) 616-8470 E-mail: scott.simpson@usdoj.gov
11
12 COUNSEL FOR DEFENDANTS

13

14 UNITED STATES DISTRICT COURT
15

16

FOR THE CENTRAL DISTRICT OF CALIFORNIA

17 CITY OF LOS ANGELES,

Case No. 2:17-cv-07215-R-JCx

18

Plaintiff,

DEFENDANTS’ NOTICE OF

19

v.

MOTION AND MOTION FOR

20

PARTIAL SUMMARY JUDGMENT;

JEFFERSON B. SESSIONS, III, et al., OPPOSITION TO PLAINTIFF’S

21

MOTION FOR PARTIAL

22

Defendants.

SUMMARY JUDGMENT

23

Date:

February 20, 2018

24

Time: 10:00 a.m.

25

26

27

28

Case 2:17-cv-07215-R-JC Document 54 Filed 01/12/18 Page 2 of 36 Page ID #:1713

1

TABLE OF CONTENTS

2

3 TABLE OF AUTHORITIES.....................................................................................ii
4 NOTICE OF MOTION AND MOTION FOR PARTIAL SUMMARY
5 JUDGMENT ..........................................................................................................viii
6 MEMORANDUM OF POINTS AND AUTHORITIES........................................... 1
7
8 INTRODUCTION ..................................................................................................... 1

9 STATUTORY AND ADMINISTRATIVE BACKGROUND ................................. 3

10 I. COPS Hiring Program and the COPS Office ....................................... 3
11

12

A. Governing Statutes and Creation of the Program....................... 3

13

B. Scoring Applications and Selecting Grantees ............................ 5

14 C. Factors Related to Enforcement of Immigration Laws .............. 7
15

16

II. Immigration and Nationality Act .......................................................... 9

17

III. Los Angeles’s CHP/UHP Applications and Grants............................ 10

18 IV. Procedural History .............................................................................. 10
19

20 ARGUMENT........................................................................................................... 11

21

I. All of Plaintiff’s Claims Must Be Dismissed as Non-Justiciable....... 11

22

II. Alternatively, the Court Should Enter Judgment for the

23

Defendants on the Merits .................................................................... 13

24

A. The Immigration-Related Factors Are Consistent

25

with the Governing Statutes ..................................................... 13

26

B. The Immigration-Related Factors Are Consistent

27

with the Spending Clause ......................................................... 20

28

i

Case 2:17-cv-07215-R-JC Document 54 Filed 01/12/18 Page 3 of 36 Page ID #:1714

1

1. The Immigration-Related Factors Are

2

Sufficiently Clear.......................................................... 21

3

2. The Immigration-Related Factors Are Sufficiently

4

Related to the Purposes of the COPS Hiring Program .. 22

5

C. The Challenged Factors Are Consistent with the APA ............ 24

6 CONCLUSION........................................................................................................ 25
7

8

9

10

11

12

13

14

15

16

17

18

19

20

21

22

23

24

25

26

27

28

ii

Case 2:17-cv-07215-R-JC Document 54 Filed 01/12/18 Page 4 of 36 Page ID #:1715

1

TABLE OF AUTHORITIES

2

3 CONSTITUTION
4 U.S. Const. art. I, § 8, cl. 1 ....................................................................................... 14
5

6 CASES
7 8 Alaska Oil & Gas Ass’n v. Jewell, 815 F.3d 544 (9th Cir. 2016) ...................... 24, 25

9 All. for the Wild Rockies v. Peña, 865 F.3d 1211 (9th Cir. 2017)..................2, 24, 25
10 Arizona v. United States, 567 U.S. 387 (2012) .................................................... 9, 18
11
12 Barbour v. Washington Metro. Area Transit Auth., 374 F.3d 1161 (D.C. Cir. 2004) ............................................................................ 22
13
14 Barnhart v. Peabody Coal Co., 537 U.S. 149 (2003) .............................................. 16

15 Brown v. Or. Dep’t of Corr., 751 F.3d 983 (9th Cir. 2014) ..................................... 12 16
Cal. Sea Urchin Comm’n v. Bean, 828 F.3d 1046 (9th Cir. 2016) .......................... 12 17
18 Canatella v. California, 304 F.3d 843 (9th Cir. 2002).............................................12

19 City of Chicago v. Sessions, 264 F. Supp. 3d 933 (N.D. Ill. 2017) .......................... 20
20 City of Los Angeles v. Lyons, 461 U.S. 95 (1983)..............................................12, 13
21

22 City of Los Angeles v. McLaughlin, 865 F.2d 1084 (9th Cir. 1989) .......................... 4

23 City of New York v. United States, 179 F.3d 29 (2d Cir. 1999) ............................... 20
24 Clinton v. City of New York, 524 U.S. 417 (1998) ................................................... 14
25

26 Freilich v. Upper Chesapeake Health, Inc., 313 F.3d 2054 (4th Cir. 2002)............20

27 Gregory v. Ashcroft, 501 U.S. 452 (1991) ............................................................... 19 28

iii

Case 2:17-cv-07215-R-JC Document 54 Filed 01/12/18 Page 5 of 36 Page ID #:1716
1 Indep. Acceptance Co. v. California, 204 F.3d 1247 (9th Cir. 2000) ................ 24, 25 2
Larson v. Domestic & Foreign Commerce Corp., 337 U.S. 682 (1949) ................. 14 3 4 Mann v. Lee, No. C 07-00781 MMC (PR), 2009 WL 5178095,
(N.D. Cal. Dec. 22, 2009) .................................................................................... 11 5 6 Mayweathers v. Newland, 314 F.3d 1062 (9th Cir. 2002) ................................. 22, 23
7 Pennhurst State Sch. & Hosp. v. Halderman, 465 U.S. 89 (1984) .......................... 14 8
Pierce v. SEC, 786 F.3d 1027 (D.C. Cir. 2015) ....................................................... 25 9 10 Price v. City of Stockton, 390 F.3d 1105 (9th Cir. 2004) ......................................... 11
11 Quechan Tribe of Ft. Yuma Indian Reservation v. U.S. Dep’t of the Interior, 12 927 F. Supp. 2d 921 (S.D. Cal. 2013), aff’d, 673 F. App’x 709 (9th Cir. 2016) . 25
13 Reno v. Condon, 528 U.S. 141 (2000)......................................................................20 14
S. Dakota v. Dole, 483 U.S. 203 (1987) .......................................................19, 20, 21 15 16 Sanford v. MemberWorks, Inc., 625 F.3d 550 (9th Cir. 2010).................................13
17 Skydive Arizona, Inc. v. Quattrocchi, 673 F.3d 1105 (9th Cir. 2012)......................11 18
Spencer v. Kemna, 523 U.S. 1 (1998) ...................................................................... 13 19 20 Steel Co. v. Citizens for a Better Env’t, 523 U.S. 83 (1998) .................................... 12
21 U.S. Parole Comm’n v. Geraghty, 445 U.S. 388 (1980)..........................................13 22
United States v. Dang, 488 F.3d 1135 (9th Cir. 2007) ............................................. 15 23 24 Wash. Dep’t of Ecology v. EPA, 752 F.2d 1465 (9th Cir. 1985)..............................24
25 26 STATUTES
27 5 U.S.C. § 704...........................................................................................................12 28
iv

Case 2:17-cv-07215-R-JC Document 54 Filed 01/12/18 Page 6 of 36 Page ID #:1717
1 8 U.S.C. §§ 1101-1107 ............................................................................................... 9 2
8 U.S.C. § 1227(a) .................................................................................................... 10 3 4 8 U.S.C. § 1228.........................................................................................................10
5 8 U.S.C. § 1252c.................................................................................................10, 23 6
8 U.S.C. § 1324(c) .............................................................................................. 10, 23 7 8 8 U.S.C. § 1357(a)(1) ............................................................................................... 10
9 8 U.S.C. § 1357(a)(2) ............................................................................................... 18 10
8 U.S.C. § 1357(g) .............................................................................................. 10, 23 11 12 8 U.S.C. § 1373.........................................................................................................20
13 8 U.S.C. § 1373(a) ................................................................................................ 8, 10 14
34 U.S.C. § 10122(c)(2)(F) ...................................................................................... 18 15 16 34 U.S.C. § 10228.....................................................................................................18
17 34 U.S.C. § 10261(a)(11)(B) ................................................................................ 5, 15 18
34 U.S.C. § 10381(b)(1) ...........................................................................3, 14, 17, 23 19 20 34 U.S.C. § 10381(b)(2) ...........................................................................3, 14, 17, 23
21 34 U.S.C. § 10381(b)(3)-(22) ..................................................................................... 4 22
34 U.S.C. § 10381(b)(10) ......................................................................................... 17 23 24 34 U.S.C. § 10381(b)(16) ......................................................................................... 17
25 34 U.S.C. § 10381(c) ................................................................................................ 16 26
34 U.S.C. § 10381(c)(1) ........................................................................................... 16 27 28 34 U.S.C. § 10381(c)(2) ........................................................................................... 16
v

Case 2:17-cv-07215-R-JC Document 54 Filed 01/12/18 Page 7 of 36 Page ID #:1718
1 2 34 U.S.C. § 10381(c)(3) ........................................................................................... 16 3 34 U.S.C. § 10381(f).............................................................................................5, 15 4
34 U.S.C. § 10381(g) ............................................................................................ 5, 15 5 6 34 U.S.C. § 10381(h) ............................................................................................ 5, 15 7 34 U.S.C. § 10382(c)(2) ....................................................................................... 5, 15 8
34 U.S.C. § 10382(c)(3) ....................................................................................... 5, 15 9 10 34 U.S.C. § 10382(c)(10) ..................................................................................... 6, 15 11 Pub. L. No. 96-157, 93 Stat. 1167 (1979) ................................................................ 18 12
Pub. L. No. 103-322, 108 Stat. 1808 (1994) ........................................................ 3, 23 13 14 Pub. L. No. 113-235, 128 Stat. 2130 (2014) ........................................................ 4, 17 15 Pub. L. No. 114-22, 129 Stat. 2242 (2015) .............................................................. 16 16
Pub. L. No. 114-113, 129 Stat. 2242 (2015) .............................................................. 4 17 18 Pub. L. No. 115-37, 131 Stat. 854 (2017) .................................................................. 7 19 20 LEGISLATIVE HISTORY 21 H.R. Rep. No. 103-324 ............................................................................................. 19 22 23 REGULATIONS 24
28 C.F.R. §§ 0.119......................................................................................................3 25 26 28 C.F.R. §§ 0.120......................................................................................................4 27 28
vi

Case 2:17-cv-07215-R-JC Document 54 Filed 01/12/18 Page 8 of 36 Page ID #:1719
1 2
RULES 3 4 Fed. R. Civ. P. 56(a) ................................................................................................. 11 5 Fed. R. Civ. P. 56(b) ................................................................................................. 11 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28
vii

Case 2:17-cv-07215-R-JC Document 54 Filed 01/12/18 Page 9 of 36 Page ID #:1720

1

NOTICE OF MOTION AND MOTION FOR

2

PARTIAL SUMMARY JUDGMENT

3

PLEASE TAKE NOTICE that on Tuesday, February 20, 2018, at 10:00 a.m.,

4 or as soon thereafter as counsel may be heard, before The Honorable Manuel L.

5 Real, in Courtroom 880 on the Eighth Floor of the Edward R. Roybal Federal

6 Building and United States Courthouse, 255 East Temple Street, Los Angeles,

7 California, the defendants will move, and hereby do move, for partial summary

8 judgment in this action under Rules 54(b) and 56 of the Federal Rules of Civil

9 Procedure. Defendants move for summary judgment dismissing Counts Four, Five,

10 and Six of plaintiffs’ Complaint, which challenge certain scoring factors used in the

11 COPS Hiring Program administered by the Office of Community Oriented Policing

12 Services of the U.S. Department of Justice.

13

This motion is based on the following Memorandum of Points and

14 Authorities, the accompanying Statement of Uncontroverted Facts, the evidence

15 and records on file in this action, and any other written or oral evidence or

16 argument that may be presented at or before the time this motion is heard by the

17 Court.

18 Dated: January 12, 2018

19

Respectfully submitted,

20 CHAD A. READLER

21

Acting Assistant Attorney General

22 SANDRA R. BROWN

23

United States Attorney

24 JOHN R. TYLER

25

Assistant Director

26

27

28

viii

Case 2:17-cv-07215-R-JC Document 54 Filed 01/12/18 Page 10 of 36 Page ID #:1721

1

2

/s/ W. Scott Simpson

3

W. SCOTT SIMPSON (Va. Bar #27487)

4

Senior Trial Counsel

5

Attorneys, Department of Justice

6

Civil Division, Room 7210

Federal Programs Branch

7

Post Office Box 883

8

Washington, D.C. 20044

Telephone:(202) 514-3495

9

Facsimile: (202) 616-8470

10

E-mail: scott.simpson@usdoj.gov

11

COUNSEL FOR DEFENDANTS

12

13

14

15

16

17

18

19

20

21

22

23

24

25

26

27

28

ix

Case 2:17-cv-07215-R-JC Document 54 Filed 01/12/18 Page 11 of 36 Page ID #:1722

1

MEMORANDUM OF POINTS AND AUTHORITIES

2

INTRODUCTION

3

The COPS Hiring Program (“CHP”) awards federal grants to selected state,

4 local, and tribal governments to assist in hiring, rehiring, and training law enforce-

5 ment officers to enhance public safety and promote “community-oriented policing.”

6 CHP is a discretionary grant program, with grants awarded to recipients following a

7 competitive application and scoring process. Since 2013, an average of nearly

8 1,300 law enforcement agencies have requested funding through CHP each year –

9 requests that far exceed the available funds appropriated by Congress. To ensure

10 that these limited funds are allocated sensibly, Congress gave the Department of

11 Justice (“DOJ”) broad discretion to determine which jurisdictions should receive

12 CHP funding. DOJ exercises that discretion to promote and support public safety

13 objectives.

14

DOJ’s Office of Community Oriented Policing Services (“COPS Office” or

15 “Office”) awards CHP grants. To apply for funding, an agency must submit an

16 application that (1) provides information about the jurisdiction’s needs and

17 practices and (2) explains how the jurisdiction intends to utilize the new officers it

18 will hire using CHP funds. The COPS Office scores the applications according to

19 both the comparative needs of the applicants and metrics that emphasize the Federal

20 Government’s enforcement priorities in any given year. To that end, every year the

21 Office selects several key “focus areas” for law enforcement and gives extra points

22 to applications that focus on those areas. Over time, those focus areas have

23 changed to reflect differing law enforcement priorities and pressing needs, ranging

24 broadly from Homicide to Homeland Security to “Children Exposed to Violence.”

25

For Fiscal Year 2017, the COPS Office included two new law-enforcement

26 related immigration factors in its scoring system. First, one of the focus areas was

27 “Illegal Immigration,” such that applicants could earn extra points by proposing

28 ways to contribute to combatting illegal immigration. Second, applicants could

Case 2:17-cv-07215-R-JC Document 54 Filed 01/12/18 Page 12 of 36 Page ID #:1723

1 earn extra points by adopting policies to ensure (1) that the Department of

2 Homeland Security (“DHS”) has access to the applicant’s detention facilities to

3 meet with aliens who have, or may have, committed crimes, and (2) that upon its

4 request, DHS receives advance notice of the scheduled release of a criminal alien in

5 the jurisdiction’s custody.

6

Los Angeles challenges the “decision” to include these factors in the FY

7 2017 application and scoring system (Doc. 1 ¶¶ 85, 112, 128), claiming it was ultra

8 vires and violated the Separation of Powers, limitations on the Spending Power, and

9 the Administrative Procedure Act (“APA”). The City’s claims regarding that

10 decision, however, are non-justiciable. As the accompanying declaration makes

11 clear, Los Angeles would not have received CHP funding this year even if all points

12 related to illegal immigration had been excluded, such that the City has no legally

13 cognizable interest in the FY 2017 factors. Moreover, to the extent plaintiff seeks

14 to rely on any interest in whatever factors will be used in the FY 2018 grant cycle,

15 its claims would be non-justiciable because one cannot assume that Los Angeles

16 will seek a CHP grant at that time or that the same factors will be used.

17

But even if plaintiff’s claims were otherwise cognizable, they would fail on

18 the merits. The statutes give DOJ broad discretion to allocate scarce CHP funds

19 among the many applicants that seek them, such that the Office was not acting ultra

20 vires or encroaching on the congressional sphere. As for the Spending Clause, the

21 immigration-related factors – which were mere scoring criteria rather than condi-

22 tions on federal funds – were unambiguous and clearly related to the CHP’s

23 purposes. The COPS Office offered to answer any questions from potential

24 applicants (an offer Los Angeles did not accept), and facilitating federal access to

25 criminal aliens in local custody promotes public safety. Finally, as for plaintiff’s

26 APA claim, the factors were consistent with the CHP’s purposes, and nothing in the

27 statute suggests these factors are off limits. Plaintiff may have a “difference in

28 view,” but that is not an APA violation. See, e.g., All. for the Wild Rockies v. Peña,

2

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1 865 F.3d 1211, 1217 (9th Cir. 2017).

2

For these reasons, plaintiff’s motion for partial summary judgment should be

3 denied, and judgment should be entered dismissing Counts Four, Five, and Six of

4 plaintiff’s Complaint.1

5

STATUTORY AND ADMINISTRATIVE BACKGROUND

6 I. COPS Hiring Program and the COPS Office

7

A. Governing Statutes and Creation of the Program

8

In the Violent Crime Control and Law Enforcement Act of 1994, Congress

9 authorized the Attorney General to “make grants to States, units of local

10 government, [and] Indian tribal governments . . . to increase police presence, to

11 expand and improve cooperative efforts between law enforcement agencies and

12 members of the community to address crime and disorder problems, and otherwise

13 to enhance public safety.” Pub. L. No. 103-322, Title I, § 10003(a), 108 Stat. 1808

14 (1994). As later amended and currently codified, the statute provides authority to

15 make grants for any of several specific purposes, including –

16 (1) to rehire law enforcement officers who have been laid off as

17

a result of State, tribal, or local budget reductions for deployment in

18

community-oriented policing; [and]

(2) to hire and train new, additional career law enforcement

19

officers for deployment in community-oriented policing across the

20

Nation, including by prioritizing the hiring and training of

veterans . . . .

21 34 U.S.C. § 10381(b)(1), (2).

22

The Attorney General created the COPS Office to administer grants under

23 this enactment. See Declaration of Andrew A. Dorr ¶ 2 (“Dorr Decl.”). The Office

24 is headed by a Director appointed by the Attorney General. Id.; 28 C.F.R. §§ 0.119,

25

26 1 Counts One, Two and Three relate to a different program, the Edward
27 Byrne Memorial Justice Assistance Grant Program. This Court has stayed proceed-
28 ings on those claims pending developments in City of Chicago v. Sessions, No. 172991 (7th Cir.).

3

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1 0.120. The COPS Office began implementing 34 U.S.C. § 10381(b)(1) and (b)(2)

2 in 1994. Initially, the Office operated two programs, one for large grantees and one

3 for small grantees. Dorr Decl. ¶ 5. The programs were combined in 1995 under the

4 name Universal Hiring Program (“UHP”), which was renamed the COPS Hiring

5 Program in 2010. Id.

6

Under CHP, the COPS Office makes grants to state and local governments to

7 hire, rehire, or train law enforcement officers for deployment in “community-

8 oriented policing.” Id. ¶¶ 5, 7. A COPS Hiring Program grant is discretionary, id.

9 ¶ 4 – that is, it is a grant “for which the federal awarding agency generally may

10 select the recipient from among all eligible recipients, may decide to make or not

11 make an award based on the programmatic, technical, or scientific content of an

12 application, and can decide the amount of funding to be awarded.” See Discre-

13 tionary Grant, Grant Terminology, https://www.grants.gov/ web/ grants/ learn-

14 grants/ grant-terminology.html (last visited Jan. 11, 2018). Discretionary grants

15 differ from formula grants, under which a “statutory device” “determines who the

16 recipients are and how much money each shall receive.” City of Los Angeles v.

17 McLaughlin, 865 F.2d 1084, 1088 (9th Cir. 1989) (citation omitted).

18

The operation of the CHP – like all other COPS Office programs – is subject

19 to annual appropriations by Congress. Dorr Decl. ¶¶ 3, 5. Each year, Congress

20 appropriates a certain amount “for the hiring and rehiring of additional career law

21 enforcement officers” under the Program. See, e.g., Pub. L. No. 114-113, 129 Stat.

22 2242, 2310-11 (2015); Pub. Law No. 113-235, 128 Stat. 2130, 2196 (2014).2 Those

23 appropriated amounts have decreased over the last several years, making CHP

24 increasingly competitive. Dorr Decl. ¶¶ 12-13. Each year, the applications that the

25 COPS Office receives seek more funds than Congress has appropriated. Id. ¶ 13.

26 2 34 U.S.C. § 10381(b) provides statutory authority for several other potential
27 grants, 34 U.S.C. § 10381(b)(3) - (22), but Congress has never appropriated funds
28 for most of them and, therefore, the COPS Office has never offered grants under most of them. Dorr Decl. ¶ 6.

4

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1

The statute sets forth certain specific requirements for the Program. For

2 example, the Office must award at least 0.5% of the available funding to grantees

3 within any State that has eligible applicants (which helps ensure that smaller States

4 are not excluded), 34 U.S.C. § 10381(f); Dorr Decl. ¶ 9; the Office must allocate

5 50% of each year’s available funds to jurisdictions with a population over 150,000

6 and 50% of the funds to jurisdictions with lower population, 34 U.S.C. § 10381(h);

7 see id. § 10261(a)(11)(B); and each grantee must provide a portion of the money

8 used to hire or rehire officer that CHP funds, subject to discretionary waiver by the

9 Attorney General, id. § 10381(g).

10

B. Scoring Applications and Selecting Grantees

11

Other than these broad rules, the statutes governing the Program do not

12 prescribe any particular method or factors for evaluating applications or choosing

13 which applications to fund. Therefore, the COPS Office must necessarily exercise

14 judgment and discretion in choosing among applications. The Office has developed

15 methods to evaluate and score applications to determine how best to allocate the

16 Program’s finite funds, and those scoring factors change from time to time to reflect

17 varying public safety priorities. Dorr Decl. ¶ 14.

18

A jurisdiction seeking a CHP grant submits an electronic application on the

19 COPS Office web site. Id. ¶ 10. The application is part of a system that assigns a

20 specific number of points for each answer given. Id. ¶ 15. Some of the factors that

21 the Office uses in scoring are reflected in the statutes. For example, the statute

22 states that applicants “shall . . . demonstrate a specific public safety need [and]

23 explain the applicant’s inability to address the need without Federal assistance.” 34

24 U.S.C. § 10382(c)(2), (3). The Office has implemented this directive by requesting

25 data reflecting each applicant’s crime statistics and financial need and by according

26 extra points based on higher crime rates and comparatively greater fiscal need.

27 Dorr Decl. ¶ 16. Similarly, the system scores the quality of the applicant’s

28 community policing plan pursuant to the statutory requirement that applicants

5

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1 “explain how the grant will be utilized to reorient the affected law enforcement

2 agency’s mission toward community-oriented policing or enhance its involvement

3 in or commitment to community-oriented policing.” Id.; 34 U.S.C. § 10382(c)(10).

4

Most of the factors that the COPS Office has historically used to score are

5 adopted as an exercise of the Office’s discretion to evaluate applications and

6 distribute scarce funding. The Office has employed such discretionary factors since

7 the inception of the Program, and Congress has continued to appropriate funding

8 each year with a complete understanding of how the Office administers it. The

9 Office exercises its discretion through several mechanisms, without which the

10 program’s limited funding could not be rationally awarded.

11

First, each year, the COPS Office designates several broad areas of public

12 safety and community policing, and applicants must indicate which areas their

13 activities will support. And each year, the Office prioritizes certain of the available

14 areas; applicants that select those focus areas receive extra points in the system.

15 Dorr Decl. ¶ 18. The available areas and the focus areas have changed over the

16 years, reflecting changes in both national law enforcement necessities and DOJ

17 priorities. For example, in FY 2014, after the Newtown (Conn.) Police Department

18 failed to score high enough to receive a CHP grant after the 2012 Sandy Hook

19 shooting, the COPS Office added a “catastrophic event” question and assigned it

20 the highest level of extra points to ensure that the Office could assist agencies

21 afflicted by unexpected catastrophes like that shooting. Id. For FY 2017, the

22 available areas were Child and Youth Safety Focus; Child and Youth Safety Focus:

23 School Based Policing; Illegal Immigration; Drug Abuse; Homeland Security

24 Problems; Non-Violent Crime Problems and Quality-of-Life Policing; Building

25 Trust and Respect; Traffic/Pedestrian Safety Problems; and Violent Crime

26 Problems. Id. ¶ 7. Consistent with the statute, the areas often reflect priorities for

27 which “cooperative efforts between law enforcement agencies” at the federal and

28

6

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1 local levels can be beneficial.

2

Second, certain questions on the CHP application that do not relate to focus

3 areas are awarded more points than other questions based on their significance to

4 advancing community policing or other law enforcement priorities. Id. ¶ 18. For

5 example, the system accords extra points for certain management practices,

6 including the regular assessment of employee satisfaction, the exercise of flexibility

7 shift assignments to facilitate addressing problems, and the operation of an “early

8 intervention system” to identify officers showing signs of stress. Id. Additionally,

9 from FY 2013 through FY 2016, the COPS Office, based on the Attorney General’s

10 priorities, assigned extra points for jurisdictions that preferred military veterans in

11 hiring officers with CHP funds, although no such preference was then mandated in

12 the statute. Id. ¶ 19; see Pub. L. No. 115-37, 131 Stat. 854 (2017) (expressly

13 authorizing “prioritizing the hiring and training of veterans”).

14

Third, each individual factor on the application falls into one of three

15 categories: Fiscal Health, Crime, or Community Policing. Dorr Decl. ¶ 20. After

16 calculating each applicant’s raw scores, the Office gives different weights to the

17 applicant’s scores in each of these categories, based on the Attorney General’s

18 priorities and the needs of public safety. Id. For most years, the Fiscal Health

19 category has been weighted as 20% of the final score, the Crime category has been

20 weighted as 30% of the final score, and the Community Policing category has been

21 weighted as 50% of the final score. Id. The Office changes these percentages from

22 time to time. In FY 2009, for example, in light of the fiscal issues that resulted in

23 enactment of the American Recovery and Reinvestment Act of 2009, the Office

24 accorded 50% of the weighting to the “Fiscal Health” category. Id.

25

C. Factors Related to Enforcement of Immigration Laws

26

Beginning with Fiscal Year 2016, certain immigration-related requirements

27 and scoring factors have been included in the COPS Hiring Program.

28

CHP grantees, like all federal grantees, are required to comply with all

7

Case 2:17-cv-07215-R-JC Document 54 Filed 01/12/18 Page 18 of 36 Page ID #:1729

1 applicable federal laws. Dorr Decl. ¶ 23. Beginning with FY 2016, the Office has

2 advised each applicant that this requirement includes compliance with 8 U.S.C.

3 § 1373, which provides that “a Federal, State, or local government entity or official

4 may not prohibit, or in any way restrict, any government entity or official from

5 sending to, or receiving from, [federal immigration authorities] information regard-

6 ing the citizenship or immigration status, lawful or unlawful, of any individual.” 8

7 U.S.C. § 1373(a); Dorr Decl. ¶ 23. In FY 2017, the Office required applicants to

8 certify compliance with Section 1373 as a threshold eligibility requirement,

9 although there was no scoring associated with it. Id.

10

For FY 2017, the priority areas on the CHP application included proposals

11 that prioritized addressing problems with violent crime; those that focused on

12 homeland security, such as protecting critical infrastructure; and those that focused

13 on contributing to the control of illegal immigration or cooperating with federal

14 authorities in enforcing immigration law. Id. ¶ 18. Thus, the system assigned extra

15 points for focusing on Illegal Immigration, although it also gave an equal or greater

16 number of points for focusing on other specified areas. Id. ¶ 24. Seven jurisdic-

17 tions chose Illegal Immigration as the focus area of their FY 2017 applications, but

18 none scored high enough to receive funding prior to the addition of any points

19 attributable to the access-and-notice factors described below. Id.3

20

Lastly, beginning in FY 2017, the COPS Office offered applicants the

21 opportunity to receive additional points by certifying that the applicant had

22 implemented or would implement regulations or policies to ensure (1) that DHS

23 would have access to the applicant’s detention facilities “to meet with an alien (or

24 an individual believed to be an alien) and inquire as to his or her right to be or to

25 remain in the United States,” and (2) that the applicant’s detention facilities would

26 3 Defendants’ opposition to plaintiff’s preliminary injunction motion stated
27 that none of the applicants that chose Illegal Immigration scored high enough to
28 receive an award. Shortly before the filing of the present motion, however, the COPS Office realized that statement was in error. Dorr Decl. ¶¶ 30-35 & n.5.

8

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1 “provide advance notice as early as practicable (at least 48 hours, where possible)

2 to DHS regarding the scheduled release date and time of an alien in the jurisdic-

3 tion’s custody when DHS requests such notice in order to take custody of the

4 alien.” Id. ¶ 25. To inform applicants of the opportunity to receive points based on

5 these factors, the Office electronically sent each applicant a letter, certification

6 form, and background documents. Id. ¶ 27 & Ex. B. These materials stated that the

7 certification would not commit applicants to detain any individuals beyond their

8 scheduled time of release and that applicants would not be penalized if they did not

9 operate detention facilities. Id. ¶ 27. A jurisdiction’s certification regarding these

10 factors did not forbid the jurisdiction from informing detainees that they may

11 choose not to meet with federal immigration authorities where the jurisdiction’s

12 laws required providing that information. Id. ¶ 26. Nor did the certification require

13 a jurisdiction to notify DHS before releasing an alien under short-term detention

14 with an unknown release time. Id.

15 II. Immigration and Nationality Act

16

Enforcement of the immigration laws, including and especially the investiga-

17 tion and apprehension of criminal aliens, is a quintessential law enforcement

18 function. Through the Immigration and Nationality Act (“INA”), 8 U.S.C. §§

19 1101-07, Congress granted the Executive Branch significant authority to control the

20 conduct of foreign nationals in the United States. These responsibilities are

21 assigned to law enforcement agencies, as the INA authorizes DHS, DOJ, and other

22 Executive agencies to administer and enforce the immigration laws. The INA

23 permits the Executive Branch to exercise considerable discretion to direct enforce-

24 ment pursuant to federal policy objectives. See, e.g., Arizona v. United States, 567

25 U.S. 387, 396 (2012).

26

The INA includes several provisions that protect the ability of federal

27 officials to investigate the status of aliens and otherwise enforce the immigration

28 laws. For example, the statute provides that a federal immigration officer “shall

9

Case 2:17-cv-07215-R-JC Document 54 Filed 01/12/18 Page 20 of 36 Page ID #:1731

1 have power without warrant . . . to interrogate any alien or person believed to be an

2 alien as to his right to be or to remain in the United States.” 8 U.S.C. § 1357(a)(1).

3 Separately, as noted above, 8 U.S.C. § 1373 provides that “a Federal, State, or local

4 government entity or official may not prohibit, or in any way restrict, any govern-

5 ment entity or official from sending to, or receiving from, [federal authorities]

6 information regarding the citizenship or immigration status, lawful or unlawful, of

7 any individual.” Id. § 1373(a). The INA provides that certain classes of aliens

8 shall be removed from the United States upon the order of the Attorney General or

9 the Secretary of Homeland Security. See, e.g., id. §§ 1227(a), 1228.

10

The INA also establishes immigration enforcement as a cooperative endeavor

11 among federal, state, and local law enforcement agencies. See, e.g., id. § 1357(g)

12 (providing that DHS may enter into formal agreements with states and localities

13 under which trained and qualified state and local officers may perform specified

14 functions of a federal immigration officer); see also id. § 1324(c) (authorizing state

15 and local officers to make arrests for violations of the INA’s prohibition against

16 smuggling aliens); id. § 1252c (authorizing state and local officers to arrest certain

17 felons who have unlawfully returned to the United States).

18 III. Los Angeles’s CHP/UHP Applications and Grants

19

Since 1995, Los Angeles has applied for grants under the CHP or its

20 predecessor nine times – in Fiscal Years 1995, 1996, 1998, 2003, 2009, 2011, 2012,

21 2016, and 2017. The 2011 and 2017 applications were denied, and the others were

22 granted. Dorr Decl. ¶¶ 30-32. The City’s application for FY 2017 was denied

23 because it scored below those of other large-population jurisdictions, even without

24 regard to any immigration-related factors. Id. ¶ 32. The COPS Office has now

25 completed reviewing all of the CHP applications for FY 2017, and has awarded all

26 of the available CHP funds. Id. ¶ 33.

27 IV. Procedural History

28

Plaintiff commenced this action on September 29, 2017, and simultaneously

10

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1 filed a motion for preliminary injunction seeking to enjoin use of the immigration-

2 related scoring factors for FY 2017 (Doc. 7-1). Defendants’ opposition to the

3 motion explained that Los Angeles would not receive a CHP grant even without

4 regarding to those factors (Doc. 33), and plaintiff withdrew its motion (Doc. 37).

5

ARGUMENT

6

A party may file a motion for summary judgment “at any time” until after the

7 close of discovery. See Fed. R. Civ. P. 56(b). “The court shall grant summary

8 judgment if the movant shows that there is no genuine dispute as to any material

9 fact and the movant is entitled to judgment as a matter of law.” Fed. R. Civ. P.

10 56(a). A party may file a motion for summary judgment without having filed an

11 answer, and the filing of such a motion tolls the time to answer. See Mann v. Lee,

12 No. C 07-00781 MMC (PR), 2009 WL 5178095, at *2 (N.D. Cal. Dec. 22,

13 2009).

14

In light of the governing statutes and the language of the challenged scoring

15 factors, “there is no genuine dispute as to any material fact and the [defendants are]

16 entitled to judgment as a matter of law.” Plaintiff’s claims regarding the CHP are

17 non-justiciable because it lacks a cognizable interest in the decisions to include

18 immigration-related factors. Alternatively, even if plaintiff’s claims were

19 cognizable, they would be without merit. Thus, plaintiff’s motion for partial

20 summary judgment should be denied, and judgment should be entered for the

21 defendants on these claims.4

22 I. All of Plaintiff’s Claims Must Be Dismissed as Non-Justiciable

23

Article III of the Constitution limits federal court jurisdiction to live “Cases”

24 and “Controversies.” To satisfy the “irreducible constitutional minimum” of

25

26

4 Even if this Court were to conclude that Los Angeles had established a right

to judgment, any injunction should be limited to the plaintiff rather than applying to

27 all CHP applicants. See Price v. City of Stockton, 390 F.3d 1105, 1117 (9th Cir.

28 2004) (internal quotation marks omitted); see also Skydive Arizona, Inc. v. Quattrocchi, 673 F.3d 1105, 1116 (9th Cir. 2012).

11

Case 2:17-cv-07215-R-JC Document 54 Filed 01/12/18 Page 22 of 36 Page ID #:1733

1 standing to sue, a plaintiff must demonstrate an “injury in fact,” a “fairly traceable”

2 causal connection between the injury and defendant’s conduct, and redressability.

3 Steel Co. v. Citizens for a Better Env’t, 523 U.S. 83, 102-03 (1998). Further, to

4 establish standing to seek equitable relief, the plaintiff must show a likelihood of

5 future injury. See City of Los Angeles v. Lyons, 461 U.S. 95 (1983). In Lyons, for

6 example, the Supreme Court held that there was no “real and immediate threat” that

7 the plaintiff would be subjected to certain police conduct in the future. Id. at 105.

8 Thus, “the speculative nature of [plaintiff’s] claim that he [would] again experience

9 injury” deprived him of standing. Id. at 109. This rule applies regardless of the

10 type of equitable relief sought – whether declaratory or injunctive. See Brown v.

11 Or. Dep’t of Corr., 751 F.3d 983, 990 (9th Cir. 2014); Canatella v. California, 304

12 F.3d 843, 852 (9th Cir. 2002).

13

Under these principles, plaintiff’s claims regarding the CHP factors must be

14 dismissed as non-justiciable, whether focused forward on the eventual FY 2018

15 factors or backward on the FY 2017 factors.5 Plaintiff purports to rely on a

16 “competitive disadvantage . . . in future grant cycles” for CHP funds (Doc. 49 at

17 23), and to seek declaratory and injunctive relief to eliminate that future “disadvan-

18 tage.” See Complaint at 39-40 (Doc. 1). As noted above, however, Los Angeles

19 has applied for CHP or UHP grants only nine times during the twenty-three years of

20 the program’s existence. Dorr Decl. ¶ 36. Moreover, the focus areas and other

21 scoring factors that the Office uses in selecting among applications change from

22 time to time, and the Office has not determined the focus areas for FY 2018 or how

23 immigration-related factors will be handled in the FY 2018 application. Id. ¶¶ 14,

24 18, 24, 29.

25

In light of these circumstances, plaintiff lacks a cognizable “injury in fact” in

26 5 Additionally, to the extent plaintiff seeks to challenge whatever factors the
27 Office may decide to use in the FY 2018 grant season, the City’s claim under the
28 APA should be dismissed for lack of “final” agency action. 5 U.S.C. § 704. See Cal. Sea Urchin Comm’n v. Bean, 828 F.3d 1046, 1049 (9th Cir. 2016).

12

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1 relation to future grant cycles. Plaintiff’s case for standing necessarily assumes

2 both that it will seek a CHP grant in FY 2018 and that the same challenged factors

3 will be used at that time. Both assumptions are fatally “speculative.” Lyons, 461

4 U.S. at 109. Thus, there is no “real and immediate threat” that plaintiff will again

5 be subjected to the scoring factors challenged here, and all of plaintiff’s claims

6 must be dismissed for lack of Article III standing. Id. at 105.

7

Moreover, to the extent plaintiff relies on any interest in the FY 2017 scoring

8 factors, its claims have become moot. See Sanford v. MemberWorks, Inc., 625 F.3d

9 550, 556 (9th Cir. 2010) (stating that the “requisite personal interest that must exist

10 at the commencement of the litigation (standing) must continue throughout its

11 existence (mootness)”) (quoting U.S. Parole Comm’n v. Geraghty, 445 U.S. 388,

12 397 (1980)). Plaintiff would not have received a FY 2017 award regardless of

13 those factors, and the COPS Office has awarded all 2017 funds; thus, the City can

14 have no legally cognizable interest in the FY 2017 factors. Also, the “capable-of-

15 repetition” exception (Doc. 49-1 at 10 n.4) cannot apply here because it requires “a

16 reasonable expectation that the same complaining party will be subject to the same

17 action again.” See Spencer v. Kemna, 523 U.S. 1, 17 (1998) (internal quotation

18 marks omitted). There is no such “reasonable expectation,” especially given that

19 Los Angeles has applied for CHP/UHP grants only nine times during the program’s

20 twenty-three years – 39% of the time.

21 II. Alternatively, the Court Should Enter Judgment for

22

Defendants on the Merits

23 A. The Immigration-Related Factors Are Consistent

24

with the Governing Statutes

25

Plaintiff’s Count Four alleges that the COPS Office acted beyond its

26 authority and encroached upon that of Congress in adopting immigration-related

27 factors in the CHP. In this case, at least, the concepts of statutory authority and

28 separation of powers are two ways of looking at the same issue. Article I of the

13

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1 Constitution confers on Congress the authority to “lay and collect Taxes, Duties,

2 Imposts and Excises, to pay the Debts and provide for the common Defence and

3 general Welfare of the United States.” U.S. Const. art. I, § 8, cl. 1. In exercising

4 this power, Congress may – and often does – delegate to the Executive Branch the

5 authority to make decisions regarding the expenditure of funds. See, e.g., Clinton v.

6 City of New York, 524 U.S. 417, 488 (1998) (“Congress has frequently delegated

7 the President the authority to spend, or not to spend, particular sums of money.”).

8

The Executive Branch is responsible for implementing the law. The

9 Supreme Court has held that an Executive “officer may be said to act ultra vires

10 only when he acts without any authority whatever.” Pennhurst State Sch. & Hosp.

11 v. Halderman, 465 U.S. 89, 101 n.11 (1984) (internal quotation marks omitted).

12 Thus, claims that an agency has used its authority erroneously or inappropriately

13 are insufficient to state an ultra vires claim. Rather, ultra vires claims must be

14 based on an “officer’s lack of delegated power”; merely claiming an “error in the

15 exercise of that power is . . . not sufficient.” Larson v. Domestic & Foreign

16 Commerce Corp., 337 U.S. 682, 690 (1949) (emphasis added).

17

Here, the Department of Justice, acting through the COPS Office, is

18 responsible for disseminating the scarce funds appropriated under 34 U.S.C.

19 § 10381(b)(1) and (b)(2). The statute gives the Office discretion in disseminating

20 those funds, and the inadequacy of the available funds to cover all applications

21 requires DOJ to adopt and employ factors to rank and choose among them.

22 Although the statute imposes certain requirements on disseminating CHP funding,

23 those requirements are only broad guidelines that are too general to actually

24 allocate the awards. Congress gave DOJ discretion to fill in the gaps.

25

By statute, CHP funds must be used to hire, rehire, and train officers “for

26 deployment in community-oriented policing.” 34 U.S.C. § 10381(b)(1), (2). The

27 statute also provides a broad framework for DOJ’s discretionary awards.

28 Recognizing that there would likely not be enough money to fund every applicant,

14

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1 Congress required that at least 0.5% of available funding be awarded to the grantees

2 within any State that has eligible applicants, id. § 10381(f), that DOJ equally

3 allocate the available funds between large and small jurisdictions, id. § 10381(h);

4 id. § 10261(a)(11)(B), and that DOJ generally require local jurisdictions to provide

5 matching funds, id. § 10381(g). Congress also specified that each application must,

6 among other things, “demonstrate a specific public safety need,” “explain the

7 applicant’s inability to address the need without Federal assistance,” and “explain

8 how the grant will be utilized to reorient the [applicant’s] mission toward

9 community-oriented policing or enhance its involvement in or commitment to

10 community-oriented policing.” Id. § 10382(c)(2), (3), (10).

11

Beyond these basic requirements, the statute provides no comprehensive

12 framework or formula for choosing among the many jurisdictions that satisfy the

13 requirements. Indeed, the statute does not even direct DOJ to prioritize applications

14 that show the greatest “public safety need,” the most dire “inability to address the

15 need without Federal assistance,” or the greatest ability or willingness “to reorient

16 the [applicant’s] mission toward community-oriented policing.” It instead leaves

17 the details to DOJ, which means the COPS Office must either choose the winning

18 applicants via random lottery – an irrational method that losing applicants would

19 surely challenge as arbitrary and capricious – or develop a logical method of select-

20 ing worthy applicants that represents a reasonable exercise of DOJ’s discretion. By

21 taking the latter course, the Office is not encroaching on Congress. It is simply

22 filling in gaps that Congress delegated for it to fill, no doubt because Congress

23 wanted DOJ to use its law-enforcement expertise to award these grants in ways that

24 best promote Congress’s broad goal of making our communities safer through

25 community-oriented policing. Cf. United States v. Dang, 488 F.3d 1135, 1140 (9th

26 Cir. 2007) (“Here, a plain reading of the statute indicates that Congress intended to

27 leave a statutory gap for the administrative agency to fill.”).

28

Plaintiff’s arguments do not establish a right to judgment on the Separation

15

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1 of Powers or ultra vires claim. First, the discretionary considerations set forth at 34

2 U.S.C. § 10381(c) are not mandatory considerations, let alone exhaustive ones

3 (Doc. 49-1 at 13). They are, rather, bases on which “the Attorney General may give

4 preferential consideration, where feasible.” Id. (emphasis added). And these

5 factors obviously are not exhaustive, because merely prioritizing jurisdictions that

6 provide greater than 25% matching funds, id. § 10381(c)(1), or that have certain

7 laws related to child sex trafficking, id. § 10381(c)(2)-(3), would not be sufficient

8 to allocate limited CHP funding among the many applicants. Congress’s inclusion

9 of a few factors that the Office “may” consider plainly does not foreclose the Office

10 from developing additional factors to guide how it awards these discretionary

11 grants. See Barnhart v. Peabody Coal Co., 537 U.S. 149, 168 (2003).6

12

Over the last twenty-three years, the COPS Office has used many

13 discretionary factors, not expressly reflected in the statute, to identify which

14 applicants are most deserving of COPS hiring grants. Dorr Decl. ¶ 18-20. For

15 example, the statute says nothing about prioritizing different areas of public safety

16 from year to year, which is an obvious means of directing priorities and distributing

17 funds logically and equitably. Id. ¶ 18. Nor does the statute expressly direct the

18 Office to favor localities that have recently experienced a catastrophic event (like

19 the 2015 terror attack in San Bernardino, California, which resulted in a FY 2016

20 grant to that city’s police department), or to assign extra points for exercising

21 flexibility in shift assignments, or for attempting to identify officers showing signs

22 of stress. Id. Nor did the statute mandate the Office’s military veteran preference

23 until Congress added it in 2017. Id. ¶ 19. In short, since Congress created the CHP

24 discretionary grant program, DOJ has exercised its discretion to develop and use a

25

26

6 This is confirmed by the fact that Congress added the human-trafficking

provisions only in 2015. See Pub. L. No. 114-22, § 1002, 129 Stat. 227, 266-67

27 (2015). If plaintiff’s construction of the statute were correct, prior to 2015, the

28 COPS Office would have been limited to ranking applicants based on a jurisdiction’s willingness to exceed the minimum matching requirement.

16

Case 2:17-cv-07215-R-JC Document 54 Filed 01/12/18 Page 27 of 36 Page ID #:1738

1 variety of factors to award funding. The factors at issue here are just the latest

2 example of that broad discretion. If plaintiff’s theory were correct, all of these

3 discretionary actions over the years – from prioritizing mass shootings to stressing

4 officer safety – would have to be deemed ultra vires. And Congress, knowing of

5 this (purportedly) ultra vires activity, would have to be deemed to have ignored it

6 repeatedly by appropriating funding for the program every year without restriction.

7

Second, plaintiff misreads the statute in arguing that most of the factors on

8 which the Office relies are not among the alleged “detailed list of twenty-two

9 purposes” for the program in 34 U.S.C. § 10381(b)(1) through (22) (Doc. 49-1 at

10 17). The COPS Hiring Program is authorized by only the first two paragraphs of

11 Section 10381(b), which authorize providing grants for hiring, rehiring, and train-

12 ing law enforcement officers “for deployment in community-oriented policing.” 34

13 U.S.C. § 10381(b)(1), (2). That language is reflected in Congress’s annual

14 appropriations, which provide funds specifically “for the hiring and rehiring of

15 additional career law enforcement officers.” See, e.g., Pub. Law No. 113-235, 128

16 Stat. 2130, 2196 (2014). The other paragraphs of Section 10381(b) authorize other

17 potential grants, when appropriated by Congress, such as grants “to establish

18 innovative programs to reduce, and keep to a minimum, the amount of time that law

19 enforcement officers must be away from the community while awaiting court

20 appearances” or “to support the purchase by a law enforcement agency of no more

21 than 1 service weapon per officer.” 34 U.S.C. § 10381(b)(10), (16). Congress has

22 never appropriated money to fund those other grants, and accordingly the COPS

23 Office does not award funds for those purposes. Dorr Decl. ¶ 6.7

24

Third, the challenged factors in the COPS Hiring Program do not

25

26 7 Quoting subsection (a) of 34 U.S.C. § 10381, plaintiff argues that the
27 statute Act created “a single grant program” (Doc. 49-1 at 19). However, regard-
28 less of whether subsections (b)(1) through (b)(22) are characterized as having authorized twenty-two potential programs or one program with twenty-two

17

Case 2:17-cv-07215-R-JC Document 54 Filed 01/12/18 Page 28 of 36 Page ID #:1739

1 impermissibly exercise “direction, supervision, or control over any police force or

2 any other criminal justice agency” in violation of 34 U.S.C. § 10228 (contra Doc.

3 7-1 at 14-15). Merely encouraging cooperation with federal authorities by giving

4 additional points as one portion of a broader scoring system to administer a discre-

5 tionary program does not exercise “direction, supervision, or control.” Indeed,

6 concurrent with the enactment of 34 U.S.C. § 10228, Congress created the National

7 Institute of Justice, see Pub. L. No. 96-157, §§ 202, 815, 93 Stat. 1167 (1979),

8 which has as one of its express statutory purposes “to develop programs and

9 projects . . . to improve and expand cooperation among the Federal Government,

10 States, and units of local government . . . .” 34 U.S.C. § 10122(c)(2)(F).

11

Fourth, Section 287(g) of the INA, 8 U.S.C. § 1357(g)(3), does not limit the

12 means by which a state or local government can assist in the enforcement of immi-

13 gration law or prohibit the COPS Office from assigning extra points to jurisdictions

14 that opt to assist federal immigration enforcement (contra Doc. 49-1 at 17-18 &

15 n.5). As the Supreme Court has observed, Section 287(g) only delineates some of

16 the circumstances under which “state officers may perform the functions of an

17 immigration officer,” Arizona v. United States, 567 U.S. 387, 408 (2012), which

18 include arresting aliens for “entering or attempting to enter the United States in

19 violation of any law or regulation made in pursuance of law regulating the

20 admission, exclusion, expulsion, or removal of aliens.” 8 U.S.C. § 1357(a)(2). No

21 formal agreement is required for state and local officers to assist in other ways, such

22 as by providing access to aliens they have detained or informing federal authorities

23 of the impending release of such persons where practical.8

24 potential purposes, the statute, in practice, is funded as one program with essentially

25 one purpose.

26

8 Also, although a willingness to enter into an agreement under that provision

may accord a CHP applicant additional points in the scoring process, any funds

27 awarded would have to be used to hire or rehire officers pursuant to the require-

28 ments of the Program, not for any state or local expenses of such an agreement. Dorr Decl. ¶ 24 n.2.

18

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1

Fifth, nothing in the governing statutes or case law prohibits DOJ from using

2 scoring factors that “encourage states to pass laws or enact policies or practices that

3 the federal government favors” (Doc. 49-1 at 13-15).9 Indeed, the Supreme Court

4 has made clear that a federal agency can use grant conditions as a “relatively mild

5 encouragement” for States and localities to change their laws and policies,

6 including statutes on subjects like the purchase of alcohol. See S. Dakota v. Dole,

7 483 U.S. 203, 211 (1987). Moreover, many of the other scoring factors in the CHP

8 – factors not challenged here and never challenged elsewhere – “encourage”

9 potential grantees to change their laws or policies, such as according extra points

10 for exercising flexibility in shift assignments and for operating an “early interven-

11 tion system” to identify officers showing signs of stress. Dorr Decl. ¶ 18.

12

Sixth, the “clear statement” rule in Gregory v. Ashcroft, 501 U.S. 452, 461

13 (1991), does not apply to the development and use of scoring factors in the COPS

14 Hiring Program (contra Doc. 49-1 at 14). In Gregory, the Court addressed whether

15 federal law would override a state constitutional provision requiring judges to retire

16 at age seventy. Id. at 455-61. The Court held that it would not “upset the usual

17 constitutional balance of federal and state powers” without a “clear statement” from

18 Congress. Id. at 460-61. But this case does not involve overriding state or local

19 law. It is, rather, simply the latest iteration of an over-two-decades-old

20

21

9 Nor does the legislative history limit the COPS Office’s discretion (contra

22 Doc. 49-1 at 15). Indeed, that history supports the addition of the factors challenged here. The portion of the history quoted by the plaintiff reads in full: “In

23 establishing funding levels and selection criteria for these grants, the Attorney

24 General is expected to take into account local needs, costs, and other factors. It is contemplated . . . that the Attorney General will consider a wide range of relevant

25 criteria, including – among other factors – the needs of areas with high crime rates,

26 low officer to population ratios, understaffing of law enforcement agencies in relation to the size of the geographic areas for which they are responsible, high

27 unemployment and economic dislocation rates that may contribute to increased

28 crime problems, and other relevant trends.” H.R. Rep. No. 103-324 at 10 (emphasis added).

19

Case 2:17-cv-07215-R-JC Document 54 Filed 01/12/18 Page 30 of 36 Page ID #:1741

1 discretionary program that gives state and local agencies an opportunity to focus on

2 federal enforcement priorities and thereby increase their chances of receiving a

3 grant. Nothing in this voluntary program risks “overriding” Los Angeles law.

4 B. The Immigration-Related Factors Are Consistent

5

with the Spending Clause

6

Plaintiff’s Count Five alleges that the challenge factors exceed federal power

7 under the Spending Clause.10 As the Supreme Court has held, “Congress may

8 attach conditions on the receipt of federal funds, and has repeatedly employed the

9 power to further broad policy objectives by conditioning receipt of federal moneys

10 upon compliance by the recipient with federal statutory and administrative

11 directives.” Dole, 483 U.S. at 206 (internal quotation marks omitted).

12

The Court in Dole described certain limitations or potential limitations on the

13 spending power. Among other things, conditions on the receipt of federal funds

14 must be stated “unambiguously” so that recipients can “exercise their choice

15 knowingly, cognizant of the consequences of their participation.” Id. at 207. Also,

16 the Court observed, “our cases have suggested (without significant elaboration) that

17 conditions on federal grants might be illegitimate if they are unrelated to the federal

18 interest in particular national projects or programs.” Id. at 207-08 (internal quota-

19 tion marks omitted). Plaintiff’s Complaint alleges that the challenged factors

20 violate both of these aspects of Dole (Doc. 1 ¶¶ 124-125). Although plaintiff now

21

22

10 Although the heading of Count Five also mentions the Tenth Amendment,

it does not otherwise allege that the CHP factors violate that amendment (Doc. 1 at

23 38-39). In any event, such a claim would be without merit. This case does not

24 involve any direct federal mandate, but rather factors in the award or denial of a grant that the City is free to accept or reject. Moreover, the courts have rejected

25 Tenth Amendment challenges to a number of federal statutes, including 8 U.S.C. §

26 1373, that regulated the handling of information. See City of New York v. United States, 179 F.3d 29, 35 (2d Cir. 1999) (rejecting Tenth Amendment challenge to

27 Section 1373); City of Chicago v. Sessions, 264 F. Supp. 3d 933 (N.D. Ill. 2017)

28 (same); see also Reno v. Condon, 528 U.S. 141, 143-46, 149-150 (2000); Freilich v. Upper Chesapeake Health, Inc., 313 F.3d 205, 213-14 (4th Cir. 2002).

20

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1 says it “does not intend to press” its allegation of ambiguity in light of post-

2 Complaint developments (Doc. 49-1 at 20 n.6), plaintiff has not withdrawn that

3 allegation. In any event, assuming the challenged factors could be characterized as

4 “conditions” at all, they satisfy these aspects of Dole.11

5

1. The Immigration-Related Factors Are Sufficiently Clear

6

There is nothing “ambiguous” about the Illegal Immigration focus area or the

7 access and notice factors, and applicants can choose those factors “knowingly,

8 cognizant of the consequences of their [choices].” Dole, 483 U.S. at 207. In

9 describing focus areas for potential applicants to choose from in FY 2017, the

10 COPS Office provided brief examples of some specific activities an applicant could

11 propose to perform in each area, but deliberately avoided telling applicants exactly

12 what to do, so they could develop their own approaches and tactics based on local

13 conditions and their local law enforcement expertise. Dorr Decl. ¶ 8. For example,

14 in offering Drug Abuse as a potential focus area, the Office simply asked applicants

15 to “specify [their] focus on education, prevention, and intervention to combat drug

16 use and abuse (e.g. marijuana, heroin, prescription opioids, etc.).” Id. Similarly, in

17 giving potential applicants the option of focusing on Illegal Immigration, the Office

18 asked interested jurisdictions to “specify [their] focus on partnering with federal

19 law enforcement to combat illegal immigration through information sharing, 287(g)

20 partnerships, task forces and honoring detainers.” Id. ¶ 24.

21

In any event, to the extent the access and notice factors were unclear to Los

22

23

11 Contrary to plaintiff’s argument, the challenged factors cannot be

24 characterized as “conditions” on the basis that an applicant unwilling to satisfy them is “less likely” to receive a grant (contra Doc. 49-1 at 18-19). As explained

25 already, these factors are only a few among many factors used in selecting among

26 applicants. Indeed, choosing “Illegal Immigration” as a focus area in the FY 2017 cycle did not guarantee receipt of an award, and many jurisdictions that neither

27 chose that focus area nor executed the access-and-notice certification were awarded

28 funds. Dorr Decl. ¶ 33. For the same reasons, the scoring factors cannot fairly be called “requirements” (contra Doc. 49-1 at 9, 12, 13, 19, 20 n.6).

21

Case 2:17-cv-07215-R-JC Document 54 Filed 01/12/18 Page 32 of 36 Page ID #:1743

1 Angeles (or any other jurisdiction), the COPS Office made clear that applicants

2 were free to contact the Office with questions. Id. ¶ 28. The Office received

3 numerous inquiries, some of which it referred to its Legal Division, but Los

4 Angeles apparently did not inquire. Id. Plaintiff objects that state law requires

5 informing detainees that they may refuse to meet with federal immigration

6 authorities, and that it “cannot determine” how the access and notice factors would

7 apply “in the context of short-term detention operations, like LAPD’s” (Doc. 1

8 ¶¶ 65-66). As the Office has made clear in this filing – and as it would have made

9 clear to Los Angeles had it asked these questions before – the Office does not

10 understand these factors to forbid a jurisdiction from informing detainees, where

11 required by law, that they may choose not to meet with immigration authorities, or

12 to require that a jurisdiction notify DHS before the release of an alien under short-

13 term detention whose release time is unknown. Dorr Decl. ¶ 26.

14 2. The Immigration-Related Factors Are Sufficiently

15

Related to the Purposes of the COPS Hiring Program

16

Plaintiff also argues that the challenged factors are not “reasonably related”

17 to the goals of the CHP (Doc. 49-1 at 18). But this aspect of Dole suggests only a

18 “possible ground” for invalidating an enactment, and does not impose an “exacting

19 standard”:

20 The Supreme Court has suggested that federal grants conditioned on

21

compliance with federal directives might be illegitimate if the

22

conditions share no relationship to the federal interest in particular

national projects or programs. This possible ground for invalidating a

23

Spending Clause statute, which only suggests that the legislation might

24

be illegitimate without demonstrating a nexus between the conditions

and a specified national interest, is a far cry from imposing an exacting

25

standard for relatedness.

26 Mayweathers v. Newland, 314 F.3d 1062, 1067 (9th Cir. 2002). Thus, conditions

27 on federal funding must only “bear some relationship to the purpose of the federal

28 spending.” Id.; see Barbour v. Washington Metro. Area Transit Auth., 374 F.3d

22

Case 2:17-cv-07215-R-JC Document 54 Filed 01/12/18 Page 33 of 36 Page ID #:1744

1 1161, 1168 (D.C. Cir. 2004) (noting that Supreme Court has never “overturned

2 Spending Clause legislation on relatedness grounds”).

3

The factors at issue here easily meet this standard (assuming they are

4 “conditions” at all). Congress established the CHP to promote “community-

5 oriented policing,” 34 U.S.C. § 10381(b)(1), (2), “to increase police presence, to

6 expand and improve cooperative efforts between law enforcement agencies and

7 members of the community to address crime and disorder problems, and otherwise

8 to enhance public safety,” Pub. L. No. 103-322, Title I, § 10003(a), 108 Stat. 1808

9 (1994) (emphasis added). Assisting in the enforcement of immigration law helps

10 achieve these goals. The COPS Office believes the intersection of illegal immigra-

11 tion and crime is a serious public safety issue that can be helpfully addressed

12 through “cooperative efforts” among federal, state, and local law enforcement.

13 Dorr Decl. ¶ 29. Indeed, Congress codified this very principle in the INA. See,

14 e.g., 8 U.S.C. § 1357(g) (providing for formal agreements under which state and

15 local officers may function as federal immigration officers); see also id. § 1324(c)

16 (authorizing state and local officers to make arrests for violations of the INA’s

17 prohibition against smuggling aliens); id. § 1252c (authorizing state and local

18 officers to arrest certain felons who have unlawfully returned to the United States).

19

The access and notice factors relate to aliens who are under detention and

20 who have either committed crimes or are suspected of having committed crimes.

21 Dorr Decl. ¶ 29. Cooperating with the Federal Government by providing basic

22 information and access allows effective enforcement of federal immigration law

23 against aliens who are criminals or suspected criminals and makes communities

24 safer. Id. The factors at issue directly advance the purposes of the CHP. They thus

25 easily clear the low bar of bearing “some relationship” to those purposes. See

26 Mayweathers, 314 F.3d at 1067.

27

28

23

Case 2:17-cv-07215-R-JC Document 54 Filed 01/12/18 Page 34 of 36 Page ID #:1745

1

C. The Challenged Factors Are Consistent with the APA

2

Plaintiff’s final claim, in Count Six, is that the decision to include the chal-

3 lenged factors for FY 2017 was “arbitrary and capricious [and] not in accordance

4 with law” in violation of the APA. This claim is also without merit. The Court of

5 Appeals has “described the arbitrary and capricious standard as deferential and

6 narrow, establishing a high threshold for setting aside agency action.” Alaska Oil

7 & Gas Ass’n v. Jewell, 815 F.3d 544, 554 (9th Cir. 2016) (internal quotation marks

8 omitted). Under this standard, a court “presume[es] the agency action to be valid

9 and affirm[s] the agency action if a reasonable basis exists for its decision.” Indep.

10 Acceptance Co. v. California, 204 F.3d 1247, 1251 (9th Cir. 2000) (internal

11 quotation marks omitted). The court has also held in numerous cases that “[a]n

12 agency action is arbitrary and capricious only if the agency relied on factors

13 Congress did not intend it to consider, entirely failed to consider an important

14 aspect of the problem, or offered an explanation that runs counter to the evidence

15 before the agency or is so implausible that it could not be ascribed to a difference in

16 view or the product of agency expertise.” E.g., All. for the Wild Rockies v. Peña,

17 865 F.3d 1211, 1217 (9th Cir. 2017) (internal quotation marks omitted). This

18 review is even more deferential where, as here, the question relates to the interpre-

19 tation of a statute the defendants are responsible for administering, especially where

20 gaps in the statute require the agency to exercise discretion. See Wash. Dep’t of

21 Ecology v. EPA, 752 F.2d 1465, 1469 (9th Cir. 1985) (“By leaving a gap in the

22 statute, Congress implicitly has delegated policy-making authority to the agency.”).

23

The challenged factors violate none of these parameters. As detailed above,

24 Congress established the CHP to promote public safety, cooperation among law

25 enforcement agencies, and community-oriented policing, and thus intended DOJ to

26 consider those aims in awarding grants. Those goals are enhanced by facilitating

27 federal access to aliens who have violated immigration law and who have violated,

28 or are suspected of violating, state or local criminal laws. Nothing in the statutes

24

Case 2:17-cv-07215-R-JC Document 54 Filed 01/12/18 Page 35 of 36 Page ID #:1746

1 governing CHP suggests DOJ should not consider the extent to which a jurisdiction

2 cooperates in the enforcement of immigration law when exercising its discretion to

3 disseminate scarce federal resources. Thus, the scoring factors have more than a

4 “reasonable basis” and easily satisfy the “deferential and narrow” APA standard.

5 Indep. Acceptance Co., 204 F.3d at 1251; Alaska Oil & Gas Ass’n, 815 F.3d at 554.

6 This is especially true given that the COPS Office must necessarily develop and

7 apply means of choosing among applicants beyond those stated in the statute.

8

In response, plaintiff argues that the challenged factors are arbitrary and

9 capricious because defendants have not presented “tangible evidence” to support

10 them (Doc. 49-1 at 21). But the City misunderstands the nature of APA review. As

11 noted already, this standard is satisfied if there is a “reasonable basis” for the

12 agency’s decision, and the burden is on the plaintiff to show that the challenged

13 action is arbitrary and capricious, not on the defendants to disprove plaintiff’s

14 claim. See Pierce v. SEC, 786 F.3d 1027, 1035 (D.C. Cir. 2015); Quechan Tribe of

15 Ft. Yuma Indian Reservation v. U.S. Dep’t of the Interior, 927 F. Supp. 2d 921, 928

16 (S.D. Cal. 2013), aff’d, 673 F. App’x 709 (9th Cir. 2016).

17

Moreover, in an apparent attempt to satisfy its burden, Los Angeles asserts

18 that certain “studies show an inverse relationship” between violent crime and a

19 refusal to cooperate with federal immigration authorities (Doc. 49-1 at 22). On this

20 basis, plaintiff contends that “DOJ’s policy actually undermines public safety” (id.

21 at 23). But those assertions only reflect a “difference in view” with the Federal

22 Government regarding how best to promote public safety. See All. for the Wild

23 Rockies, 865 F.3d at 1217. Los Angeles is entitled to its views, but its disagree-

24 ment does not establish a violation of the APA.

25

CONCLUSION

26

Accordingly, plaintiff’s motion for partial summary judgment should be

27 denied, and judgment should be entered for the defendants on Counts Four, Five,

28 and Six.

25

Case 2:17-cv-07215-R-JC Document 54 Filed 01/12/18 Page 36 of 36 Page ID #:1747

1 Dated: January 12, 2018 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28

Respectfully submitted,
CHAD A. READLER Acting Assistant Attorney General
SANDRA R. BROWN United States Attorney
JOHN R. TYLER Assistant Director
/s/ W. Scott Simpson
W. SCOTT SIMPSON (Va. Bar #27487) Senior Trial Counsel
Attorneys, Department of Justice Civil Division, Room 7210 Federal Programs Branch Post Office Box 883 Washington, D.C. 20044 Telephone:(202) 514-3495 Facsimile: (202) 616-8470 E-mail: scott.simpson@usdoj.gov
COUNSEL FOR DEFENDANTS

26

Case 2:17-cv-07215-R-JC Document 54-1 Filed 01/12/18 Page 1 of 208 Page ID #:1748

1

2

3

4

5

6

7

8

UNITED STATES DISTRICT COURT

9

FOR THE CENTRAL DISTRICT OF CALIFORNIA

10

11 CITY OF LOS ANGELES,

Case No. 2:17-cv-07215-R-JCx

12

Plaintiff,

v.
13

14 JEFFERSON B. SESSIONS, III, et al.,

15

Defendants.

DECLARATION OF ANDREW A. DORR IN SUPPORT OF DEFENDANTS’ MOTION FOR PARTIAL SUMMARY JUDGMENT AND IN OPPOSITION TO PLAINTIFF’S MOTION FOR PARTIAL SUMMARY JUDGMENT

16
1. I am the Acting Deputy Director for the Grant Operations Directorate of the Office of
17
Community Oriented Policing Services (“COPS Office” or “Office”) within the U.S. Department
18
of Justice. I am responsible for overseeing the development, awarding, and administration of the
19
COPS Hiring Program, as well as several other COPS Office grant programs. In the course of my
20
duties, I have become familiar with the procedures and practices of the COPS Office and with the
21
federal statutes related to the Office and its responsibilities. Before taking my current position,
22
I served as Assistant Director for the Grants Administration Division of the COPS Office and
23
have worked in the Division since 1998. This declaration is based on personal knowledge and
24
other information obtained by me in the performance of my official duties.
25
Office of Community Oriented Policing Services
26
2. The Office of Community Oriented Policing Services was created in 1994 to develop
27
and administer grant programs that promote community policing and to provide community
28

Case 2:17-cv-07215-R-JC Document 54-1 Filed 01/12/18 Page 2 of 208 Page ID #:1749

1 policing training and technical assistance to state, local, and tribal law enforcement agencies. The

2 Office is headed by a Director appointed by the Attorney General.

3

3. The COPS Office currently administers six grant programs: the COPS Hiring

4 Program, the Community Policing Development Program, the COPS Anti-Methamphetamine

5 Program, the COPS Anti-Heroin Task Force Program, the Preparing for Active Shooter Situations

6 Program, and the Tribal Resources Grant Program. The operation of each of these programs is

7 subject to specific annual appropriations by Congress.

8

4. All of the COPS Office’s programs are discretionary, meaning that there is no

9 entitlement to funding and all applicants must compete against each other for the available funds.

10 This is in contrast to a “formula grant” program such as the Byrne JAG program operated by a

11 different component of the Department of Justice, in which, as I understand, when grants are

12 made, all applicants who meet the requirements of the program receive funding based on a

13 formula mandated by Congress, subject to any conditions the Department of Justice may impose

14 in its discretion.

15

COPS Hiring Program in General

16

5. The COPS Office initially funded its hiring grant programs for large and small

17 agencies in two separate programs, called COPS FAST: Funding Accelerated For Smaller Towns,

18 and COPS AHEAD: Accelerated Hiring Education And Deployment. In 1995, these programs

19 were merged into one hiring program, the Universal Hiring Program (“UHP”), and, in 2010, this

20 program was renamed the COPS Hiring Program (“CHP”). Under CHP, the COPS Office makes

21 discretionary grants to States, units of local government, Indian tribal governments, and

22 sometimes other law enforcement agencies such as university police departments to hire or rehire

23 law enforcement officers for deployment in community-oriented policing. The statutory authority

24 for this program is currently codified at Title 34, U.S. Code, Section 10381(b)(1) and (b)(2). Like

25 the COPS Office’s other programs, the operation of CHP is subject to specific annual

26 appropriations by Congress.

27

28

2

Case 2:17-cv-07215-R-JC Document 54-1 Filed 01/12/18 Page 3 of 208 Page ID #:1750

1

6. Since the statute was enacted in 1994, the COPS Office has always understood that the

2 other provisions currently listed at Title 34, U.S. Code, Section 10381(b) – that is, Section

3 10381(b)(3) through (b)(22) – do not authorize the COPS Hiring Program, but set forth the

4 purposes of other, separate grant programs that the Office could offer if Congress appropriated

5 funds for them. For example, the Office formerly operated a program called Making Officer

6 Redeployment Effective (“MORE”) under the provision codified at Title 34, U.S. Code, Section

7 10381(b)(3), which authorizes grants (if appropriated by Congress) “to procure equipment,

8 technology, or support systems, or pay overtime, to increase the number of officers deployed in

9 community-oriented policing.” Because of a lack of appropriations, the COPS Office has never

10 offered grants under most of the other provisions listed in Section 10381(b).

11

7. Under CHP, the COPS Office offers funding for hiring or rehiring law enforcement

12 officers for deployment in “community-oriented policing,” which the Office defines as “a

13 philosophy that promotes organizational strategies that support the systematic use of partnerships

14 and problem-solving techniques to proactively address the immediate conditions that give rise to

15 public safety issues such as crime, social disorder, and fear of crime.” Each year, the COPS

16 Hiring Program prioritizes certain specific areas of public safety and community policing based

17 on the Department of Justice’s law enforcement priorities. For Fiscal Year 2017, CHP applicants

18 could choose from among nine broad areas: Child and Youth Safety Focus: School Based

19 Policing; Illegal Immigration; Drug Abuse; Homeland Security Problems; Non-Violent Crime

20 Problems and Quality-of-Life Policing; Building Trust and Respect; Traffic/Pedestrian Safety

21 Problems; and Violent Crime Problems. Whatever focus area an applicant chooses, the proposed

22 program or initiative must incorporate the principles of community-oriented policing.

23

8. Although the COPS Office provides brief examples of some specific activities an

24 applicant could propose to perform in each focus area, the Office deliberately avoids telling

25 applicants what to do in a given area, so that applicants can develop their own approaches and

26 tactics based on local conditions and their local law enforcement expertise. For example, on the

27 FY 2017 application, a jurisdiction that proposed to focus on Drug Abuse was simply asked to

28

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1 “specify [its] focus on education, prevention, and intervention to combat drug use and abuse (e.g.

2 marijuana, heroin, prescription opioids, etc.)”; a jurisdiction that proposed to focus on Building

3 Trust and Respect was asked to “specify [its] focus on mutual respect and understanding between

4 police and the communities they serve; for example, impartial policing, transparency fairness &

5 respect, community engagement, diversity”; and a jurisdiction that proposed to focus on

6 Homeland Security Problems was asked to choose either (1) “Protecting Critical Infrastructure

7 Problems” and to “specify [its] critical infrastructure problem; for example, addressing threats

8 against facilities, developing and testing incident response plans, etc.”; (2) “Information or

9 Intelligence Problems” and to “specify [its] information and/or intelligence problem; for example,

10 the need for criminal intelligence capacity, engaging in information sharing, expanding utilization

11 of fusion centers, etc.”; or (3) “Other Homeland Security Problem (please specify).”

12

9. The statute sets forth certain specific requirements for the COPS Hiring Program. For

13 example, Title 34, U.S. Code, Section 10381(f) requires the COPS Office to award at least 0.5%

14 of the available funding to the grantees within any State that has eligible applicants (which helps

15 ensure that smaller States are not excluded from funding); Section 10381(g) requires each grantee

16 to provide a portion of the funding for each law enforcement officer hired or rehired using CHP

17 funds (that is, local matching funds), subject to discretionary waiver by the Attorney General; and

18 Section 10381(h) requires allocating 50% of each year’s available funds to jurisdictions with a

19 population over 150,000 and 50% of available funds to jurisdictions with a population less than

20 150,000.

21

Application Process in General

22

10. A jurisdiction seeking a CHP grant fills out and submits an electronic application on

23 the COPS Office web site. A paper version of the FY 2017 application is Exhibit A to this

24 declaration. (This paper version accurately reflects the content of the electronic application, but

25 not every applicant will see everything contained in the paper version. What an applicant sees on

26 the electronic application depends partly on which selections are made while completing it.) The

27 COPS Office establishes the application deadlines annually based on the timing of the federal

28

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1 budget approval. The Office evaluates, scores, and ranks the applications as further described

2 below, then announces all of the awards, usually by September 30 of each year, although it may

3 announce beyond that date. Each grantee has 90 days to accept its award, although the Office is

4 willing to extend that period if an extension is necessary to obtain the required local approvals.

5

11. The COPS Office’s announcement of CHP awards obligates all of the funding

6 available at that time. Occasionally, if additional funding for CHP grants becomes available

7 thereafter, the Office makes a small number of additional awards later in the fiscal year.

8

Scoring Applications

9

12. Each year, the applications that the COPS Office receives for CHP grants seek more

10 funds, in the aggregate, than Congress has appropriated for the year. That competitiveness has

11 increased since 1994, primarily because congressional appropriations have decreased. CHP is the

12 COPS Office’s most competitive grant program.

13

13. The following table shows, for each of the Fiscal Years 2010-2017, the amount of

14 funding available for the COPS Hiring Program,1 the aggregate amount of funding requested and

15 the number of applications received, and the number of applications funded:

16

17

Fiscal Year Funding Available

Total Funding Requested

Applications Applications

Received

Funded

18

2010

$298,000,000

$2.2 billion

4,423

379

19

2011

$243,398,709

$2,067,924,397

2,712

238

20

2012

$114,806,304

$526,340,412

1,411

233

21

2013

$127,577,332

$974,007,306

1,718

266

22

2014

$123,882,021

$425,734,755

1,296

215

23

2015

$113,743,485

$376,582,744

1,103

209

24

2016

$119,309,470

$411,791,318

1,181

184

25

26

1 The amount of funding available in each year is less than the amount stated in that year’s

appropriations act, both because Congress passes funding for other programs as “carveouts” from
27 the CHP appropriation and because the COPS Office is required to deduct its administrative costs

28

as a percentage from the appropriations for all of its programs. 5

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1

2017

$98,503,539

$409,028,743

1,142

179

2

3
14. The statutes that apply to the COPS Hiring Program do not prescribe a particular

4
method for evaluating CHP applications or choosing which applications to fund. Rather, the

5
statutes give the Office discretion to evaluate and score applications in order to determine how

6
best to allocate the Program’s finite funds every year. The Office has consistently updated and

7
modified its scoring process over the years to emphasize different public safety priorities.

8
15. The CHP application on the COPS Office web site (Exhibit A hereto) is part of an

9
electronic application system that assigns a specific number of points for each answer given by

10
the applicant. The Office does not disclose the number of points assigned to any particular

11
answer, because disclosing the scoring system could skew the application process and subject that

12
process to manipulation.

13
16. Some of the factors that the COPS Office uses in scoring applications are reflected in

14
the statutes that apply to CHP. For example, the statute states that applicants “shall” “demon-

15
strate a specific public safety need” and “explain the applicant's inability to address the need

16
without Federal assistance” (Title 34, U.S. Code, Section 10382(c)(2) and (c)(3)). The Office has

17
implemented this directive by requesting data reflecting each applicant’s crime statistics and

18
financial need and by according extra points based on higher crime rates within a jurisdiction and

19
comparatively lower fiscal health of a jurisdiction as compared to each fiscal year’s pool of CHP

20
applicants. Similarly, the CHP application scores the quality of the applicant’s community

21
policing plan pursuant to the statutory requirement that applicants “explain how the grant will be

22
utilized to reorient the affected law enforcement agency’s mission toward community-oriented

23
policing or enhance its involvement in or commitment to community-oriented policing” (Title 34,

24
Section 10382(c)(10)).

25
17. In exercising the discretion the statute expressly confers, the COPS Office has never

26
given preferential consideration (i.e., additional points) to applicants that provide more than the

27
minimally required 25% local match for the costs of hiring and rehiring additional law

28

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1 enforcement officers (Title 34, U.S. Code, Section 10381(c)(1)), because the Office believes such

2 a preference would unfairly favor wealthy jurisdictions that have the means to contribute more

3 than less-wealthy jurisdictions in serious need of federal assistance.

4

18. Many of the factors that the COPS Office uses to score applications are not expressly

5 reflected in the statutes that apply to CHP, but are inherent in the Office’s statutory discretion to

6 evaluate applications and distribute scarce funding. For example, since FY 2011, the Office has

7 decided each year what areas the COPS Hiring Program should prioritize, and the application

8 system assigns extra points for applications that are focused on that year’s priority areas. For FY

9 2017, the focus areas included applications that explicitly prioritized addressing problems with

10 violent crime; applications that focused on homeland security, such as protecting critical

11 infrastructure; and applications that focused on contributing to the control of illegal immigration

12 or cooperating with federal authorities in enforcing immigration law. Beginning in FY 2014,

13 after the December 2012 Sandy Hook Elementary School shootings in Newtown, Connecticut,

14 the COPS Office added a “catastrophic event” question to the CHP application and assigned it the

15 highest level of bonus points to ensure that the Office could assist agencies experiencing such

16 tragedies or disasters impacting law enforcement. (The Office was unable to give the Newtown

17 Police Department a CHP grant for FY 2013 because, without bonus points for a catastrophic

18 event, the agency did not score high enough to receive an award. Those bonus points resulted, for

19 example, in a FY 2016 CHP grant to the San Bernardino (California) Police Department after the

20 December 2015 terror attack in that city.) Additionally, certain questions within the application

21 that do not relate to focus areas are nonetheless awarded more points than other questions based

22 on their significance to advancing community policing. For example, the application system

23 accords extra points for certain internal management practices of the applicant, including the

24 regular assessment of employee satisfaction, the exercise of flexibility in officer shift assignments

25 to facilitate addressing problems, and the operation of an “early intervention system” to identify

26 officers showing signs of stress, personal problems, or questionable work conduct.

27

28

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1

19. From FY 2013 through FY 2016, the COPS Office, based on the Attorney General’s

2 priorities, assigned additional points for jurisdictions that preferred military veterans in hiring

3 officers with CHP funds, although no such preference was reflected in the statute. Beginning

4 with a congressional amendment made in 2017, the statute now expressly authorizes “prioritizing

5 the hiring and training of veterans” (Section 10381(b)(2)).

6

20. Each individual factor on the CHP application falls into one of three categories:

7 Fiscal Health, Crime, or Community Policing. Based on the Attorney General’s priorities and the

8 needs of public safety, the COPS Office gives different amounts of weight to the applicants’

9 aggregate scores in each of these categories. For most years, each applicant’s score in the Fiscal

10 Health category is weighted as 20% of the applicant’s total final score; each applicant’s score in

11 the Crime category is weighted as 30% of the applicant’s total final score; and each applicant’s

12 score in the Community Policing category is weighted as 50% of the applicant’s total final score.

13 In FY 2009, however, in recognition of the national fiscal issues that also resulted in the passage

14 of the American Recovery and Reinvestment Act of 2009, the Office accorded 50% of the

15 weighting to the “Fiscal Health” category. (Unlike the number of points assigned for each

16 individual factor on the application, the Office announces these weighting percentages to

17 prospective applicants each year.)

18

21. After reviewing each application for accuracy, the COPS Office calculates each

19 applicant’s overall score based on the individual factors, then applies the weighting percentages

20 described above. The applications are then ranked against one another by weighted score. Per

21 statutory requirements, the COPS Office then awards 0.5% of the available funding to the

22 highest-scoring applicants in each State and territory. Because of the statutory requirement to

23 award 50% of the CHP funding to jurisdictions serving populations over 150,000 and the

24 remaining 50% to the smaller jurisdictions, the remaining applications are then divided into

25 “large” and “small” populations (Title 34, U.S. Code, Section 10261(a)(11)(B)). Awards are

26 made based on the scores to the highest applicants in each category until the total available

27 amount of CHP funding is exhausted.

28

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1

22. No applicant has ever brought a judicial action challenging the COPS Office’s scoring

2 process or the Office’s decision on a CHP grant application.

3

Immigration-Related Factors and Their Effect in FY 2017

4

23. CHP grantees, like all federal grantees, are required to comply with all applicable

5 federal laws. Beginning with FY 2016, the COPS Office has advised each CHP applicant that

6 this requirement specifically includes compliance with Title 8, U.S. Code, Section 1373. In FY

7 2017, the COPS Office required a certification of compliance with Section 1373 as a threshold

8 eligibility requirement. Accordingly, all active FY 2017 CHP applications are from jurisdictions

9 that certified compliance with Section 1373. This certification is a threshold requirement for

10 consideration, and there is no scoring associated with it.

11

24. As noted above, the COPS Hiring Program focus areas for FY 2017 included

12 contributing to the control of illegal immigration or cooperating with federal authorities on

13 enforcing immigration law (as well as addressing problems with violent crime and addressing

14 homeland security, such as by protecting critical infrastructure). The application asked any

15 jurisdiction choosing the Illegal Immigration focus area to “specify your focus on partnering with

16 federal law enforcement to combat illegal immigration through information sharing, 287(g)

17 partnerships, task forces and honoring detainers.”2 The application system assigned points for

18 focusing on one of these areas, although the system gave more or an equal number of points for

19 focusing on certain other areas.

20

25. For the FY 2017 grant process, the COPS Office also offered applicants the oppor-

21 tunity to receive additional points by certifying that the applicant had implemented or would

22 implement regulations or policies (1) to ensure that the Department of Homeland Security

23 (“DHS”) would have access to the applicant’s correctional or detention facilities “to meet with an

24 alien (or an individual believed to be an alien) and inquire as to his or her right to be or to remain

25
2 Although a willingness to enter into an agreement under Section 287(g) of the

26 Immigration and Nationality Act could accord a CHP applicant additional points in the scoring

process, any funds awarded under a CHP grant would have to be used to hire or rehire officers
27 pursuant to the requirements of the Program, not for any state or local expenses of a 287(g)

28 agreement.

9

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1 in the United States,” and (2) to ensure that the applicant’s correctional and detention facilities

2 “provide advance notice as early as practicable (at least 48 hours, where possible) to DHS

3 regarding the scheduled release date and time of an alien in the jurisdiction’s custody when DHS

4 requests such notice in order to take custody of the alien.”

5

26. The COPS Office does not understand this certification to forbid a certifying

6 jurisdiction from informing detainees that they may choose not to meet with federal immigration

7 authorities where the jurisdiction’s laws require providing that information. The Office also does

8 not understand this certification to require that a certifying jurisdiction notify DHS before the

9 release of each non-U.S. citizen under short-term detention whose release time is unknown.

10 Rather, the Office understands this certification to mean that when DHS requests advance notice

11 of a particular suspected non-citizen’s release, the jurisdiction will provide that notice to DHS as

12 early as practicable before releasing the suspected non-citizen.

13

27. To inform applicants regarding the opportunity to receive additional points based on

14 these “access” and “notice” factors, the COPS Office electronically sent each applicant a letter, a

15 certification form, and background documents, which are Exhibit B to this declaration. These

16 materials stated, among other things, that the certification would not commit applicants to detain

17 any individuals beyond their scheduled time of release, and that applicants would not be

18 penalized if they did not operate detention facilities.

19

28. The letter regarding the access and notice factors stated that any applicant with

20 questions regarding the certification could contact the COPS Office Response Center (i.e.,

21 customer service center) at its toll-free telephone number. (The COPS Office web site also

22 provides an email address for the Response Center.) The COPS Response Center received 87

23 inquiries related to the certification process. Some of those inquiries were referred to the COPS

24 Office’s Legal Division, including questions regarding whether a particular jurisdiction’s

25 detention facility qualified the applicant to submit the certification. The Office has no record of

26 any inquiries from the City of Los Angeles regarding FY 2017 CHP grants.

27

28

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1

29. As described above, the COPS Hiring Program is meant to enhance public safety and

2 community policing. The COPS Office believes that illegal immigration enforcement is a public

3 safety issue and that this issue can be addressed most effectively through the principles of

4 community policing that CHP promotes – including through partnerships and problem-solving

5 techniques. Effective partnerships and problem-solving efforts may include not only DHS, but

6 also the immigrant communities that law enforcement agencies protect and serve. The “access”

7 and “notice” factors in the certification relate to non-citizens who are being detained and who

8 have committed crimes or are suspected of having committed crimes. Working with the federal

9 government to enforce the federal immigration laws against aliens who have committed crimes or

10 are suspected of having committed crimes makes communities safer. Nevertheless, the COPS

11 Office has not yet determined the CHP focus areas for FY 2018, and no final decisions have been

12 made regarding how immigration-related factors will be handled in the FY 2018 application.

13

30. The tables attached to this declaration as Exhibits C, D, E, and F show the effect of

14 these immigration-related factors on the scoring and ranking of the FY 2017 applicants. Exhibits

15 C and D show the rank order of large and small jurisdictions, respectively, based on each

16 applicant’s selection of focus areas and all other scoring factors except whether the applicant

17 returned the access-and-notice certification described above. Exhibits E and F show the rank

18 order of large and small jurisdictions, respectively, after application of the additional points

19 attributable to whether an applicant returned the access-and-notice certification. To protect the

20 confidentiality of applicants – especially those that appear near the bottom of the lists – the names

21 of most of the applicants have been replaced with numeric identifiers.3

22

31. As reflected in Exhibits C and D, one large jurisdiction and six small jurisdictions

23 chose Illegal Immigration as a focus area. After applying the points attributable to choosing that

24 focus area, the one large jurisdiction – Laredo, Texas – ranked thirty-ninth on the large-

25 jurisdiction list, and the highest-ranked small jurisdiction ranked seventy-seventh on the small-

26

27

3 The applicants whose information is crossed out or highlighted in red withdrew their

28

applications or were found ineligible for reasons unrelated to any immigration-related factors. 11

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1 jurisdiction list. The City of Los Angeles, which chose “Building Trust and Respect” as its focus

2 area, ranked thirty-sixth on the large-jurisdiction list.

3

32. On Exhibits C and D, the blue highlighting marks the last applicant that would have

4 been funded had there been no access-and-notice certification, except that several additional

5 applicants below that point (marked as “Funded to Meet State Minimum Requirement” on the far

6 right) also would have received funding because of the statutory requirement that the COPS

7 Office award at least 0.5% of the available funding to the grantees within any State that has

8 eligible applicants. In other words, the large jurisdictions ranked 1 through 31 on Exhibit C

9 would have been funded, and the small jurisdictions ranked 1 through 68 on Exhibit D would

10 have been funded, along with some additional jurisdictions on both lists as marked. Absent the

11 access-and-notice certification, neither Los Angeles nor Laredo, Texas, would have been funded

12 among the large jurisdictions, and none of the six small jurisdictions that chose Illegal

13 Immigration as a focus area would have been funded.

14

33. Exhibits E and F show the final scores for FY 2017 – which include points for

15 returning the access-and-notice certification – and indicate which jurisdictions were awarded

16 COPS grants last year. On those Exhibits, the column labeled “ICC Certified” indicates whether

17 each applicant returned the access-and-notice certification and received the points awarded for

18 doing so.4 Approximately 39% of the large jurisdictions and approximately 47% of the small

19 jurisdictions returned the certification.

20

34. The blue highlighting on Exhibits E and F marks the last applicant that received CHP

21 funds based on all scoring factors, except that several additional applicants below that point

22 (marked as “Funded to Meet State Minimum Requirement” on the far right) also received funding

23 because of the 0.5% statutory requirement already described. Thus, the large jurisdictions ranked

24 1 through 29 on Exhibit E were funded and the small jurisdictions ranked 1 through 82 on Exhibit

25 F were funded, along with some additional jurisdictions on both lists as marked.

26

27

4 The COPS Office refers to this certification internally as the “Immigration Cooperation

28

Certification,” hence the abbreviation “ICC.” 12

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1

35. Of the 30 large jurisdictions that were funded, 19 returned the access-and-notice

2 certification, and, of the 149 small jurisdictions that were funded, 124 returned the certification.

3 Returning the access-and-notice certification moved Laredo, Texas, from rank 39 on Exhibit C

4 (below the funding line) to rank 18 on Exhibit E (above the funding line). Returning the

5 certification moved one of the six small jurisdictions that chose Illegal Immigration as a focus

6 area (#856 on rank 72 of Exhibit F) from below the funding line on Exhibit D to above the

7 funding line on Exhibit F.5 Numerous jurisdictions that neither chose the Illegal Immigration

8 focus area nor executed the access-and-notice certification were awarded CHP funds.

9

City of Los Angeles’s UHP/CHP Applications and Grants

10

36. The City of Los Angeles has applied for grants under the CHP or its predecessor

11 program, the Universal Hiring Program, nine times – in Fiscal Years 1995, 1996, 1998, 2003,

12 2009, 2011, 2012, 2016, and 2017. The 2011 and 2017 applications were denied, and the rest

13 were granted.

14

37. Los Angeles’s CHP application for FY 2017 requested $3.125 million to support

15 hiring twenty-five officers for a Community Safety Partnership Program. The City did not

16 choose Illegal Immigration as a focus area; nor did it return the certification regarding the access

17 and notice factors. As described above, Los Angeles scored below the funding line even without

18 regard to either of these immigration-related scoring components. The COPS Office denied Los

19 Angeles’s FY 2017 application on November 28, 2017.

20

38. The COPS Office has completed reviewing all of the CHP applications for FY 2017,

21 and has awarded all of the available CHP funds.

22

23

24

5 My prior declaration in this case, signed on October 12, 2017, stated that none of the

25 applicants that chose Illegal Immigration as a focus area for FY 2017 scored high enough to

permit further consideration, regardless of the access-and-notice factors. The COPS Office

26 realized, after my declaration was filed but before the awards were announced, that that statement

was partially incorrect. As described above, two jurisdictions that chose Illegal Immigration as a
27 focus area – one a small jurisdiction and one a large jurisdiction – received a CHP award because

28

they also returned the access-and-notice certification and therefore received additional points. 13

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COPS Office Application Attachment to SF-424

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Section 1. COPS Office Program Request
Federal assistance is being requested under the following COPS Office program: Verify the COPS Office grant program for which you are requesting federal assistance. A separate application must be completed for each COPS Office program for which you are applying. Please ensure that you read, understand, and agree to comply with the applicable grant terms and conditions as outlined in the COPS Office Application Guide before finalizing your selection. ONLY ONE PROGRAM OPTION MAY BE CHECKED.  COPS Anti-Gang Initiative  COPS Hiring Program  COPS Anti-Methamphetamine Program  COPS Anti-Heroin Task Force  Community Policing Development
Please select a CPD topic area from the menu below: 1. Cooperative Partnerships with Federal Law Enforcement to Address Illegal Immigration 2. Field Initiated Law Enforcement Microgrants 3. Officer Safety and Wellness Resources 4. Enhancing Officer Safety Through Increased Respect for Law Enforcement 5. Critical Response Technical Assistance 6. Online Training Development 7. Preparing for Active Shooter Situations
a. Invitational Initiative A1. Have you been provided an invitational code by the COPS Office? A2. If so, please enter your invitation code here:
b. Research & Development (R&D) Designation B1. Could any portion of your project be considered research and development (R&D) as defined by 2 C.F.R. §200.87? (See definition below.) “R&D means all research activities, both basic and applied, and all development activities that are performed by non-Federal entities. The term research also includes activities involving the training of individuals in research techniques where such activities utilize the same facilities as other research

Case 2:17-cv-07215-R-JC Document 54-1 Filed 01/12/18 Page 17 of 208 Page ID #:1764
and development activities and where such activities are not included in the instruction function. ‘Research’ is defined as a systematic study directed toward fuller scientific knowledge or understanding of the subject studied. ‘Development’ is the systematic use of knowledge and understanding gained from research directed toward the production of useful materials, devices, systems, or methods, including design and development of prototypes and processes.”
2

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Section 2. Agency Eligibility Information (all programs)

Type of Agency (select one)  Law Enforcement  Non-Law Enforcement From the list below, please select the type of agency which best describes the applicant.

Law Enforcement Entities

Select One …

Note to applicant: Choices in this drop-down menu are as follows:
Attorney/Court Consortium Constable Corrections County Police Emergency Response/Management (non-police) Federally Recognized Tribal - Other Federally Recognized Tribal Council Federally Recognized Tribal Courts Federally Recognized Tribal Fish & Wildlife Government Marshall MultiJuris Multijurisdictional Task Force Municipal Municipal Government National Law Enforcement Natural Resources Police (e.g. Fish and Wildlife, Park Police) New Start-Up (please specify) Non-profit Park Police Private University/College Police Profit Organization Public Housing Public Univ./College Public University/College Police Regional Police Department

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Schools Sheriff State State Associations Chiefs of Police (SACOP) State Associations of Sheriffs Transit Tribal/Native Village Value-based
4

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Section 2. Agency Eligibility Information

Non-Law Enforcement Entities

Select One …

Note to applicant: Choices in this drop-down menu are as follows:
Attorney/Court Consortium/Partnerships(Other than police/public safety) Corrections County Government Emergency Response/Management (non-police) Federally Recognized Tribal - Other Federally Recognized Tribal Council Federally Recognized Tribal Courts Government MultiJuris Multijurisdictional Task Force Municipal Municipal Government National Law Enforcement Non-profit Private University/College (Other than police/public safety) Profit Organization Public Housing Public University/College (Other than police/public safety) Public University/College Police Schools State State Associations Chiefs of Police (SACOP) State Associations of Sheriffs State Government Transit Tribal /Native Village Value-based
2A. CHP eligibility questions
In this section, we will ask you several questions about your law enforcement agency operations and authority to determine your eligibility to apply for a COPS Hiring Program (CHP) grant. Please note that CHP applicants must have a police department which is operational as of the 07/10/2017 date of this application or receive services through a new or existing contract for law enforcement services. Applicants must also maintain primary law enforcement authority for the population to be served.

5

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Additionally, if funds under this program are to be used as part of a written contracting arrangement for law enforcement services (e.g., a town which contracts with a neighboring sheriff’s department to receive services), the government agency wishing to receive law enforcement services must be the legal applicant in this application (although we will ask you to supply some information about the contract service provider later).
Part I. Law enforcement agency operations
A law enforcement agency is established and operational if the jurisdiction has passed authorizing legislation and it has a current operating budget.

Q1) Is your agency established and currently operational?

Select One …

Q2) Which of the following best describes your agency (check one)?
 We are planning to establish or begin operations as a newly authorized law enforcement agency. If selected, proceed to Q3a and Q3b.
 We are planning to re-establish and resume operations for a previously operational law enforcement agency. If selected, proceed to Q3b.

Q3a) Has your jurisdiction passed legislation which authorizes the creation of a new law enforcement agency?
Q3b) Will your law enforcement agency be operational as of 07/10/2017 (application close date)?

Select One … Select One …

Part II. Contracting to receive law enforcement services

Q1) If awarded, does your agency plan to use funds awarded under this grant to establish or supplement a written contract for law enforcement services (e.g., a town contracting for services with a nearby sheriff's department)?

Select One …

Note to applicant: If you answer yes to Q1, the text below plus Q2 will display.
An agency may apply for funds under this program to be used as part of a written contracting arrangement for law enforcement services (e.g., a town which contracts with a neighboring sheriff's department to receive services). However, the agency wishing to receive law enforcement services must be the legal applicant in this application (although we will ask you to supply some information about the contract service provider later).
Before proceeding with this application, we ask that you please log onto the COPS Office Agency Portal to update the agency providing law enforcement services as your Law Enforcement Executive/Agency Executive Information. This information will be pre-populated from the COPS Office Agency Portal in Section 4 of this application, so please ensure its accuracy.
Important Note: Two entities involved in a contracting relationship may not separately apply for funding to support the same officer position(s). For more information about contracting arrangements, please refer to the CHP application guide.

6

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Section 2. Agency Eligibility Information

Q2) Is the legal applicant listed in this COPS Hiring Program (CHP) application and on the SF-424 the entity that will be receiving law enforcement services?

Select One …

Q3) What is the legal name of the law enforcement agency that will be providing law enforcement services to your jurisdiction?

[Proceed to next section.]
Part III. Law enforcement agency authority
An agency with primary law enforcement authority is defined as the first responder to calls for service for all types of criminal incidents within its jurisdiction. Agencies are not considered to have primary law enforcement authority if they only: respond to or investigate specific type(s) of crime(s); respond to or investigate crimes within a correctional institution; serve warrants; provide courthouse security; transport prisoners; and/or have cases referred to them for investigation or investigational support.

Q1) Based on the definition above, does your agency have primary law enforcement authority? [Or, if contracting to receive services, does the agency that will be providing law enforcement services have primary law enforcement authority for the population to be served?]

Select One …

Note to applicant: The following questions apply to a subset of applicants [Sheriff, County Police, State Police, Regional PD, Public University, Private University, Natural Resources Police, Transit Police, Public Housing Police, Attorney/Court, Multijurisdictional Task Force, Consortium, Constable, Marshals, Corrections].

Is your agency the first responder to all types of criminal incidents within your jurisdiction?
Agencies with jurisdiction limited only to correctional institutes and/or courthouse settings are not eligible under this program. Is your agency the first responder to citizen-initiated calls for service outside of a correctional institute and/or courthouse setting?

Select One … Select One …

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2B. CAMP eligibility questions

1. Is your agency a State Law Enforcement Agency authorized by law or by a state agency to engage in or to supervise anti-methamphetamine investigative activities, such as locating and investigating illicit activities, precursor diversion, laboratories and/or methamphetamine traffickers? (See Application Guide for more information on anti-methamphetamine investigation authority.)

Select One …

2C. AHTF eligibility questions
1. Is your agency a State Law Enforcement Agency authorized by law or by a State agency to engage in or supervise anti-heroin and/or other opioids investigative activities, such as locating and investigating illicit activities related to the unlawful distribution of heroin or unlawful distribution of prescriptive opioids, or unlawful diversion and distribution of prescriptive opioids?

Select One …

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Section 3. General Agency Information
A. Applicant ORI number:
The ORI number is assigned by the FBI and is your agency's unique identifier. The COPS Office uses the first seven characters of this number. The first two letters are your state abbreviation, the next three numbers are your county's code, and the next two numbers identify your jurisdiction within your county. If you do not currently have an ORI number, the COPS Office will assign one to your agency for the purpose of tracking your grant. ORI numbers assigned to agencies by the COPS Office may end in “ZZ.”
B. Applicant Data Universal Numbering System (DUNS) number:
A Data Universal Numbering System (DUNS) number is required prior to submitting this application. A DUNS number is a unique nine or thirteen digit sequence recognized as the universal standard for identifying and keeping track of entities receiving federal funds. For more information about how to obtain a DUNS number, please refer to the "How to Apply" section of the COPS Office Application Guide.
C. System for Award Management (SAM)
The System for Award Management (SAM) replaces the Central Contractor Registration (CCR) database as the repository for standard information about federal financial assistance applicants, recipients, and sub-recipients. DOJ requires that all applicants (other than individuals) for federal assistance maintain current registrations in the SAM database. Please note that applicants must update or renew their SAM registration at least once a year to maintain an active status.
Applicants that were previously registered in the CCR database must, at a minimum:
• Create a SAM account • Log into SAM and migrate permissions to the SAM account (all the entity registrations and records should
already have been migrated).
Applicants that were not previously registered in the CCR database must register in SAM prior to registering in Grants.gov. Information about SAM Registration procedures can be accessed at www.sam.gov.
For more information about how to register with SAM, please refer to the “How to Apply” section of the COPS Office Application Guide.
Your SAM Registration is set to expire on
Please enter date in MM/DD/YYYY format.
Note: If your SAM registration is set to expire prior to September 30, 2017, please renew your SAM Registration prior to completing this application. Contact the SAM Service Desk at 866-606-8220 or view/update your registration information at www.sam.gov.

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D. Geographic Names Information System (GNIS) ID:

Please enter your Geographic Names Information System (GNIS) Identification Number. This is a unique ID assigned to all geographic entities by the U.S. Geological Survey. To look up your GNIS Feature ID, please go to the website: geonames.usgs.gov/domestic/index.html. For more information about how to obtain a GNIS number, please refer to the “How to Apply” section of the COPS Office Application Guide.

E. Cognizant Federal Agency:

Select One …

Note to applicant: Choices in this drop-down menu are as follows.
Bureau of Indian Affairs Department of Agriculture Department of Commerce Department of Defense Department of Education Department of Energy Department of Health and Human Services Department of Homeland Security Department of Housing and Urban Development Department of Justice Department of Labor Department of State Department of the Interior Department of Transportation Department of the Treasury Department of Veterans Affairs Environmental Protection Agency Executive Office of the President Panama Canal Commission

Select the legal applicant’s Cognizant Federal Agency. A Cognizant Federal Agency, generally, is the federal agency from which your jurisdiction receives the most federal funding. Your Cognizant Federal Agency also may have been previously designated by the Office of Management and Budget. Applicants that have never received federal funding should select the “Department of Justice” as the Cognizant Federal Agency.

F. Fiscal Year:

to

Please enter date in MM/DD/YYYY format.

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Section 3. General Agency Information

G. Law Enforcement Agency Sworn Force Information
1. Enter the Fiscal Year Budgeted Sworn Force Strength for the current fiscal year below. The budgeted number of sworn officer positions is the number of sworn positions funded in your agency’s budget, including funded but frozen positions, as well as state, Bureau of Indian Affairs, and/or locally funded vacancies. Do not include unfunded vacancies or unpaid/reserve officers.
a. Number of officers funded in agency’s current fiscal year budget:

Full time

Part time

H. Civilian Staffing 1. Enter the number of civilian positions funded in agency's current fiscal year budget: a. Number of civilian positions funded in agency’s current fiscal year budget:

Full time

Part time

Civilians/(Civilians + Officers)

%

I. U.S. Department of Justice and Other Federal Funding
Applicants are required to disclose whether they have pending applications for federally funded assistance or active federal grants that support the same or similar activities or services for which grant funding is being requested under this application.
Be advised that as a general rule COPS Office grant funding may not be used for the same item or service funded through another funding source. However, leveraging multiple funding sources in a complementary manner to implement comprehensive programs or projects is encouraged and is not seen as inappropriate. To aid the COPS Office in the prevention of awarding potentially duplicative funding, please indicate whether your agency has a pending application and/or an active grant with any other federal funding source (e.g. direct federal funding or indirect federal funding through State sub-awarded federal funds) which supports the same or similar activities or services as being proposed in this COPS Office application (complete the tables below):
Summary of Current/Active Non-COPS Grants to do the Same or Similar Work

Federal Awarding Agency

Award Number

Program Name

Award Start Date

Award End Date

Award Amount

Describe how this project differs from the
application for COPS funding.

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SAMPLE:

Federal Awarding Agency

Award Number

Program Name

OVW

2013XXXXXXXX

2013 CTAS

Award Start Date

Award End Date

Award Amount

9/1/2013 12/31/2014 $900,000

Describe how this project differs from the
application for COPS funding.
[Insert description]

Summary of Pending Non-COPS Grants to do the Same or Similar Work

Federal Awarding Agency

Application Number (if known)

Program Name

Project Length

Total Requested
Amount

Items Requested

Describe how this project differs from the
application for COPS funding.

SAMPLE:

Federal Awarding Agency

Application Number (if known)

OJP

XXX-XXX-XXXX

Program Name
OVC

Project Length
24 months

Total Requested
Amount

Items Requested

Describe how this project differs from the
application for COPS funding.

$300,000

Civilian personnel

[Insert description]

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Section 4. Executive Information
Note: Listing individuals without ultimate programmatic and financial authority for the grant could delay the review of your application or remove your application from consideration.
A. Law Enforcement Executive/Agency Executive Information
For Law Enforcement Agencies: This is the highest ranking law enforcement official within your jurisdiction (e.g., Chief of Police, Sheriff, or equivalent). The section below has been pre-populated from the information listed in your COPS Office Agency Portal Account. If this information is no longer correct, please log in to your COPS Office Agency Portal account and make the necessary corrections before proceeding with this application. For assistance, please call the COPS Office Response Center at 800-421-6770.
For Non-Law Enforcement Agencies: This is the highest ranking individual in the applicant agency (e.g., CEO, President, Chairperson, or Director, etc.) who has the authority to apply for this grant on behalf of the applicant agency. If the grant is awarded, this position would ultimately be responsible for the programmatic implementation of the award. The section below has been pre-populated from the information listed in your COPS Office Agency Portal Account. If this information is no longer correct, please log in to your COPS Office Agency Portal account and make the necessary corrections before proceeding with this application. For assistance, please call the COPS Office Response Center at 800-421-6770.
Note to applicant: The following text is displayed if you are contracting law enforcement services.
Your agency previously indicated that if awarded, this grant would be used in a written contracting arrangement to receive law enforcement services (e.g., a town which is contracting with a neighboring sheriff’s department to receive services). Therefore, question 4A, should display the executive information for the agency which will be providing the law enforcement services under this grant (e.g., Sheriff). Question 4B, should display the executive information for the government agency which will be receiving the law enforcement services under this grant (i.e., Mayor, City Manager, etc.). Before proceeding with this application, we ask that you please log onto the COPS Office Agency Portal to update the agency providing law enforcement services as your Law Enforcement Executive/Agency Executive Information. That information will be used to populate Section 4 of this application, so please ensure its accuracy.

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Note to applicant: The tables below are prepopulated and are for reference only. You will not be asked to fill out these tables at this point in your application.

Title: First Name:

MI

Last Name:

Interim/Acting:  Suffix: Select One …

Note to applicant: Choices in the “Suffix” drop-down menu are as follows.
Jr. Sr. M.D. Ph.D.

Agency Name: Street Address 1: Street Address 2: City: Telephone:

State:

ZIP Code:

Fax:

E-mail:

B. Government Executive/Financial Official Information:
For Government Agencies: This is the highest ranking government official within your jurisdiction (e.g., Mayor, City Administrator, or equivalent). The section below has been pre-populated from the information listed in your COPS Office Agency Portal Account. If this information is no longer correct, please log in to your COPS Office Agency Portal account and make the necessary corrections before proceeding with this application. For assistance, please call the COPS Office Response Center at 800-421-6770.
For Non-Government Agencies: This is the financial official who has the authority to apply for this grant on behalf of the applicant agency (e.g., CFO or Treasurer, etc.). If the grant is awarded, this position would ultimately be responsible for the financial management of the award. Please note that information for non-executive positions (e.g., clerks, trustees, etc.) is not acceptable. The section below has been pre-populated from the information listed in your COPS Office Agency Portal Account. If this information is no longer correct, please log in to your COPS Office Agency Portal account and make the necessary corrections before proceeding with this application. For assistance, please call the COPS Office Response Center at 800-421-6770.

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Section 4. Executive Information

Note to applicant: The tables below are prepopulated and are for reference only. You will not be asked to fill out these tables at this point in your application.

Title: First Name:

MI

Last Name:

Interim/Acting:  Suffix: Select One …

Note to applicant: Choices in the “Suffix” drop-down menu are as follows.
Jr. Sr. M.D. Ph.D.

Agency Name: Street Address 1: Street Address 2: City: Telephone:

State:

ZIP Code:

Fax:

E-mail:

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C. Application Contact Information: Application Contact: Enter the application contact's name and contact information.

First Name:

MI

Last Name:

Suffix: Select One …

Note to applicant: Choices in the “Suffix” drop-down menu are as follows.
Jr. Sr. M.D. Ph.D.

Agency Name: Street Address 1: Street Address 2: City: Telephone:

State:

ZIP Code:

Fax:

E-mail:

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Note to applicant: Section 5A below applies only if CHP is the selected program.
Section 5A. COPS Hiring Program Officer Request

Part 1.
Enter the Fiscal Year Actual Sworn Force Strength as of the date of this application. The actual number of sworn officer positions is the actual number of sworn positions employed by your agency as of the date of this application. Do not include funded but currently vacant positions or unpaid positions.
a. Number of officers employed by your agency as of the date of this application:

Full time

Part time

Note to applicant: If you are contracting law enforcement services, only the question below is displayed.
1. Enter the Fiscal Year Actual Sworn Force Strength for officers your agency currently has under contract for law enforcement services as of the date of this application. The actual number of sworn officer positions is the actual number of sworn officers under all current contracts as of the date of this application. Do not include funded but currently vacant positions or unpaid positions.
a. Number of officers deployed by your agency as of the date of this application:

Full time

Part time

What is the actual population your department serves as the primary law enforcement entity?

This may or may not be the same as your census population. For example, a service population may be the census population minus incorporated towns and cities that have their own police departments within your geographic boundaries or estimates of ridership (e.g., transit police) or visitors (e.g., park police). An agency with primary law enforcement authority is defined as having first responder responsibility to calls for service for all types of criminal incidents within its jurisdiction.
For FY 2017, COPS Hiring Program (CHP) applicants are eligible to apply for the number of officers equal to 5 percent of their actual sworn force strength up to a maximum of 25 officers. Agencies with a sworn force of twenty or fewer officers may apply for one (1) officer position. Agencies with a service population of 1 million or above may apply for up to 25 officer positions; however, agencies with a service population less than 1 million may apply for up to 15 officer positions.
FY 2017 CHP grant funds cover 75 percent of the approved entry-level salary and fringe benefits of each newlyhired and/or rehired, full-time sworn career law enforcement officer for three years (36 months) up to $125,000 per officer position. CHP grant funding will be based on your agency's current entry level salaries and fringe benefits for full-time sworn officers.

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If your agency requests officers to be deployed as School Resource Officers (SRO), all of the officer positions requested below must be used to deploy full-time School Resource Officers. Do not request more officer positions than your agency can expect to deploy in this capacity. A School Resource Officer is a career law enforcement officer, with sworn authority, who is engaged in community policing activities and is assigned by the employing agency to work in collaboration with schools. If awarded a grant for SRO position(s), please note that the COPS Office requires that the officer(s) deployed into the SRO position(s) spend a minimum of 75 percent of their time in and around primary and secondary schools working on school and youth-related activities.

The placement of law enforcement officers in school carries a risk of contributing to a “school-to-prison pipeline” process where students are arrested or cited for minor, nonviolent behavioral violations and then diverted to the juvenile court system. This pipeline wastes community resources and can lead to academic failure and greater recidivism rates for these students. If awarded, the grantee will agree that any officers deployed while implementing School-based Policing under the COPS Hiring Program (CHP) grant cannot be involved in the administrative discipline of the students.

There must be an increase in the level of community policing activities performed in and around primary or secondary schools in the agency’s jurisdiction as a result of the grant. The time commitment of the funded officers must be above and beyond the amount of time that the agency devoted to the schools before receiving the grant.

Grantees using CHP funding to hire and/or deploy School Resource Officers into schools agree that a signed Memorandum of Understanding (MOU) between the law enforcement agency and the school partner(s) must be submitted to the COPS Office before obligating or drawing down funds under this award. An MOU is not required at time of application; however, if the law enforcement agency already has an MOU in place that is applicable to the partnership, the MOU can be submitted as an attachment in Section 13 of the grant application. The MOU must contain the following; the purpose of the MOU, clearly defined roles and responsibilities of the school district and the law enforcement agency; focusing officers’ roles on safety, information sharing, supervision responsibility and chain of command for the SRO and signatures. If awarded, grantee will agree that the MOU must be submitted and accepted by the COPS Office 90 days from the award start date which is located on the Award Document. The implementation of the COPS Hiring Program (CHP) grant without submission and acceptance of the required MOU within the 90 day timeframe may result in expenditures not being reimbursed by the COPS Office.

In addition, in section 6B you must select “School Based Policing through School Resource Officers” under “Child and Youth Safety Focus” as your focus area.

Is your agency requesting that all of these officer positions be deployed as School Resource Officers (SROs)?

 Yes

 No

Based on the information provided in this application:

Your agency is eligible to apply for up to the number of officer position(s) shown below.

How many entry level, full-time officer positions is your agency requesting in this application?

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Section 5A. COPS Hiring Program Officer Request
IMPORTANT: If you later return to this section of the application and change the above number of officers you are requesting, you must then go to Section 14A, Part 1 to allow the application to recalculate your budget figures. You will also need to adjust your projection of your Federal/Local share costs in the chart located in Section 14A, Part3. Failure to do this will cause a conflict in your budget submission.
Next, your agency must allocate the number of positions requested under each of the three hiring categories described below based on your agency's current needs at the time of this application. Please be mindful of the initial three-year grant period and your agency's ability to fill and retain the officer positions awarded while following your agency's established hiring policies and procedures. CHP grant awards will be made for officer positions requested in each of the three hiring categories, and grantees are required to use awarded funds for the specific categories awarded.
It is imperative that your agency understand that the COPS Office statutory nonsupplanting requirement mandates that grant funds may only be used to supplement (increase) a grantee's law enforcement budget for sworn officer positions and may not supplant (replace) state, local, or tribal funds that a grantee otherwise would have spent on officer positions if it had not received a grant award. This means that if your agency plans to:
(a) Hire new officer positions (including filling existing vacancies that are no longer funded in your agency's budget): It must hire these new additional positions on or after the official grant award start date, above its current budgeted (funded) level of sworn officer positions, and otherwise comply with the nonsupplanting requirement as described in detail in the Grant Owner’s Manual.
(b) Rehire officers who have been laid off by any jurisdiction as a result of state, local, or tribal budget cuts: It must rehire the officers on or after the official grant award start date, maintain documentation showing the date(s) that the positions were laid off and rehired, and otherwise comply with the nonsupplanting requirement as described in detail in the Grant Owner’s Manual.
(c) Rehire officers who are (at the time of application) currently scheduled to be laid off (by your jurisdiction) on a specific future date as a result of state, local, or tribal budget cuts: It must continue to fund the officers with its own funds from the grant award start date until the date of the scheduled layoff (for example, if the CHP award start date is September 1 and the layoffs are scheduled for November 1, then the CHP funds may not be used to fund the officers until November 1, the date of the scheduled layoff); identify the number and date(s) of the scheduled layoff(s) in this application(see below); maintain documentation showing the date(s) and reason(s) for the layoff; and otherwise comply with the nonsupplanting requirement as described in detail in the Grant Owner’s Manual. [Please note that as long as your agency can document the date that the layoff(s) would occur if CHP funds were not available, it may transfer the officers to the CHP funding on or immediately after the date of the layoff without formally completing the administrative steps associated with a layoff for each individual officer.]
Documentation that may be used to prove that scheduled layoffs are occurring for local economic reasons that are unrelated to the availability of CHP grant funds may include (but are not limited to) council or departmental meeting minutes, memoranda, notices, or orders discussing the lay-offs; notices provided to the individual officers regarding the date(s) of the lay-offs; and/or budget documents ordering departmental and/or jurisdiction-wide budget cuts. These records must be maintained with your agency’s CHP grant records during the grant period and for three years following the official closeout of the CHP grant in the event of an audit, monitoring, or other evaluation of your grant compliance.
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If your agency's request is funded, your agency will have the opportunity after the award announcement to request a grant modification to move awarded funding into the category or categories that meet your agency's law enforcement needs at that time (including updating the dates of future scheduled layoffs). If you need additional information regarding requesting a modification, please contact the COPS Office Response Center at 800-421-6770. Category A: New, additional officer positions (including filling existing vacancies no longer funded in your agency’s budget).
Category A Request: <<insert>>
Category B: Rehire officers laid of nf (from any jurisdiction) as a result of state or local budget reductions.
Category B Request: <<insert>> Category C: Rehire officers scheduled to be laid off (at the time of the application) on a specific future date as a result of state or local budget reductions.
Category C Request: <<insert>> (total) We also need some information about when the layoff of officers in this category is scheduled to occur. In the space below, please indicate when the officer(s) specified in this category are scheduled to be laid off.
Number of officers: Date these officers are scheduled to be laid off: Number of officers: Date these officers are scheduled to be laid off: Number of officers: Date these officers are scheduled to be laid off:
Part 2.
Note to applicant: This section is hidden unless category C in the previous section is not null. Since your agency plans to use CHP funds to rehire officers who are currently scheduled to be laid off on a future date (under Category C above), please certify (by checking the appropriate boxes) to the following: Certification:  My agency has and will maintain documentation showing the date(s) of the scheduled layoff(s) and demonstrating that the scheduled layoff(s) is/are occurring for fiscal reasons that are unrelated to the availability or receipt of CHP grant funds.
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Section 5A. COPS Hiring Program Officer Request
 My agency will use its own funds to continue funding these officers until the scheduled date(s) of the layoff(s) and will use CHP funds to rehire these officers only on or after the scheduled date of the layoff(s).  My agency recognizes that the CHP program provides funding based on our entry-level salary and benefits package and that any additional costs for rehired officers beyond entry-level are our responsibility to pay with other sources of funding. If an applicant receives an award and needs to change the hiring categories after receiving the award, it must request a post-award grant modification to change the categories of hiring and receive prior approval before spending CHP funding by calling the COPS Office Response Center at 800-421-6770.
Part 3.
As noted previously, the number of officers an applicant can request under the COPS Hiring Program in 2017 is capped. However, the COPS Office is interested in learning more about the overall need for officer positions within your department. Therefore, if no officer caps were in place, what is the total number of officers that your agency would be requesting in this application?
Hire
Re-hires
Lay off

Part 4.

Under the 2017 COPS Hiring Program, applicants are not required to hire post-September 11, 2001 military veterans as new hires. However, the COPS Office supports the attorney general’s commitment to hiring military veterans whenever possible. Please note that if your agency checks “yes” to the question below, your agency will be required to maintain documentation that it made every effort possible (consistent with your internal procedures and policies) to hire at least one military veteran.

Does your agency commit to hire and/or rehire at least one post-September 11, 2001 military veteran (as defined in the Application Guide) for the officer position(s) you have requested?

 Yes

 No

If yes, how many officer position(s) from your total 2017 CHP request does your agency anticipate filling with postSeptember 11, 2001 military veterans?

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Part 5.

The following questions will help Congress and the Department of Justice identify potential gaps in training. This information will not be used in the scoring/evaluation of your application.

Does your agency administer a police training academy? If Yes, please answer questions 1 and 2. If No, please skip question 1 and only answer question 2.

 Yes

 No

1. How many total hours of basic/recruit academy training are required for each of your agency’s officer/deputy recruits in the following categories? (If none, please indicate 0 hours.):

a. Use of force

_____hours

b. De-escalation of conflict

_____hours

c. Racial and ethnic bias that includes elements of Implicit/unconscious bias

_____hours

d. Gender bias in response to domestic violence and sexual assault

_____hours

e. Bias towards lesbian, gay, bisexual, and transgender (LGBT) individuals

_____hours

f. Community engagement (e.g. community policing and problem solving)

_____hours

2. On average, how many hours of in-service (non-recruit) training (e.g., FTO, continuing professional education, roll call standard) are required annually for each of your agency’s officers/deputies in the following categories? (If none, please indicate 0 hours.):

a. Use of force

_____hours

b. De-escalation of conflict

_____hours

c. Racial and ethnic bias that includes elements of Implicit/unconscious bias

_____hours

d. Gender bias in response to domestic violence and sexual assault

_____hours

e. Bias towards lesbian, gay, bisexual, and transgender (LGBT) individuals

_____hours

f. Community engagement (e.g. community policing and problem solving)

_____hours

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Note to applicant: Section 6A is for non-hiring applicants only.
Section 6A. Law Enforcement & Community Policing Strategy
COPS Office grants must be used to reorient the mission and activities of law enforcement agencies through initiating community policing or enhancing their involvement in community policing. If awarded funds, your responses to this section will constitute your agency’s community policing strategy under this grant. Your organization may be audited or monitored to ensure that it is initiating or enhancing community policing in accordance with this strategy. The COPS Office may also use this information to understand the needs of the field and potentially provide for training, technical assistance, problem solving, and community policing implementation tools.
We understand that your community policing needs may change during the life of your grant (if awarded), and minor changes to this strategy may be made without prior approval from the COPS Office. We also recognize that this strategy may incorporate a broad range of possible community policing strategies and activities and that your agency may implement particular community policing approaches from the strategy on an as-needed basis throughout the life of the grant. If your agency’s community policing strategy changes significantly, however, you must submit those changes in writing to the COPS Office for approval. Changes are significant if they deviate from the range of possible community policing activities identified and approved in this original community policing strategy submitted with your application.
Community policing definition framework
The following is the COPS Office definition of community policing, which emphasizes the primary components of community partnerships, organizational transformation, and problem solving.
Community policing is a philosophy that promotes organizational strategies that support the systematic use of partnerships and problem-solving techniques to proactively address the immediate conditions that give rise to public safety issues such as crime, social disorder, and fear of crime.
The COPS Office has completed the development of a comprehensive community policing self-assessment tool for use by law enforcement agencies. Based on this work, we have developed the following list of primary subelements of community policing. Please refer to the COPS Office website (www.cops.usdoj.gov) for further information regarding these subelements.

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Community Partnerships: Collaborative partnerships between the law enforcement agency and the individuals and organizations they serve to both develop solutions to problems and increase trust in police

Organizational Transformation: The alignment of organizational management, structure, personnel, and information systems to support community partnerships and proactive problem-solving efforts

Problem Solving: The process of engaging in the proactive and systematic examination of identified problems to develop effective responses that are rigorously evaluated

Other government agencies Community members/groups Nonprofits/service providers Private businesses Media

Agency Management Climate and culture Leadership Labor relations Decision making Strategic planning Policies Organizational evaluations Transparency

Scanning: Identifying and prioritizing Analysis: Analyzing problems Response: Responding to problems Assessment: Assessing problemsolving initiatives Using the crime triangle to focus on immediate conditions (victim/offender/location)

Organizational Structure Geographic assignment of officers Despecialization Resources and finances
Personnel Recruitment, hiring, and selection Personnel supervision/evaluations Training

Information Systems (Technology) Communication/access to data Quality and accuracy of data
Proposed community policing strategy
COPS Office grants must be used to initiate or enhance community policing activities, either directly by your law enforcement agency, or (for non-law enforcement applicants) in collaboration with law enforcement. Please complete the following questions to describe the types of community policing activities that you are currently engaged in and that will result from COPS Office funding. For each question, answer on behalf of the applicant law enforcement agency, or for non-law enforcement applicants, the law enforcement agency with whom you will collaborate.
You may find more detailed information about community policing at the COPS Office website: www.cops.usdoj.gov/Default.asp?Item=36.

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Section 6A. Law Enforcement & Community Policing Strategy

Community partnerships

Community partnerships are ongoing collaborative relationships between law enforcement and the individuals and organizations they serve to both develop solutions to problems and increase trust in the police.

My agency:

P1) Regularly distributes relevant crime and disorder information to community members.

a)

 YES

If yes, do you plan to use grant funding to enhance or expand this activity?

 YES

 NO

b)

 NO

If no, do you plan to use grant funding to initiate or implement this activity?

 YES

 NO

P2) Routinely seeks input from the community to identify and prioritize neighborhood problems (through regularly scheduled community meetings, annual community surveys, etc.).

a)

 YES

If yes, do you plan to use grant funding to enhance or expand this activity?

 YES

 NO

b)

 NO

If no, do you plan to use grant funding to initiate or implement this activity?

 YES

 NO

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P3) Regularly collaborates with local government agencies that deliver public services.

a)

 YES

If yes, do you plan to use grant funding to enhance or expand this activity?

 YES

 NO

b)

 NO

If no, do you plan to use grant funding to initiate or implement this activity?

 YES

 NO

P4) Regularly collaborates with nonprofit organizations and/or community groups.

a)

 YES

If yes, do you plan to use grant funding to enhance or expand this activity?

 YES

 NO

b)

 NO

If no, do you plan to use grant funding to initiate or implement this activity?

 YES

 NO

P5) Regularly collaborates with local businesses.

a)

 YES

If yes, do you plan to use grant funding to enhance or expand this activity?

 YES

 NO

b)

 NO

If no, do you plan to use grant funding to initiate or implement this activity?

 YES

 NO

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Section 6A. Law Enforcement & Community Policing Strategy

P6) Regularly collaborates with informal neighborhood groups and resident associations.

a)

 YES

If yes, do you plan to use grant funding to enhance or expand this activity?

 YES

 NO

b)

 NO

If no, do you plan to use grant funding to initiate or implement this activity?

 YES

 NO

P7) Regularly collaborates with federal government agencies through formal partnerships (task forces, working groups, etc.).

a)

 YES

If yes, do you plan to use grant funding to enhance or expand this activity?

 YES

 NO

b)

 NO

If no, do you plan to use grant funding to initiate or implement this activity?

 YES

 NO

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Problem solving

Problem solving is an analytical process for systematically (1) identifying and prioritizing problems, (2) analyzing problems, (3) responding to problems, and (4) evaluating problem-solving initiatives. Problem solving involves an agency-wide commitment to go beyond traditional police responses to crime to proactively address a multitude of problems that adversely affect quality of life.

My agency:

PS1) Routinely incorporates problem-solving principles into patrol work.

a)

 YES

If yes, do you plan to use grant funding to enhance or expand this activity?

 YES  NO

b)

 NO

If no, do you plan to use grant funding to initiate or implement this activity?  YES

 NO

PS2) Identifies and prioritizes crime and disorder problems through the routine examination of patterns and trends involving repeat victims, offenders, and locations.

a)

 YES

If yes, do you plan to use grant funding to enhance or expand this activity?

 YES

 NO

b)

 NO

If no, do you plan to use grant funding to initiate or implement this activity?

 YES

 NO

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Section 6A. Law Enforcement & Community Policing Strategy

PS3) Routinely explores the underlying factors and conditions that contribute to crime and disorder problems.

a)

 YES

If yes, do you plan to use grant funding to enhance or expand this activity?

 YES

 NO

b)

 NO

If no, do you plan to use grant funding to initiate or implement this activity?

 YES

 NO

PS4) Systematically tailors responses to crime and disorder problems to address their underlying conditions.

a)

 YES

If yes, do you plan to use grant funding to enhance or expand this activity?

 YES

 NO

b)

 NO

If no, do you plan to use grant funding to initiate or implement this activity?

 YES

 NO

PS5) Regularly conducts assessments to determine the effectiveness of responses to crime and disorder problems.

a)

 YES

If yes, do you plan to use grant funding to enhance or expand this activity?

 YES

 NO

b)

 NO

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If no, do you plan to use grant funding to initiate or implement this activity?

 YES

 NO

Organizational transformation

Organizational transformation is the alignment of organizational management, structure, personnel, and information systems to support community partnerships and proactive problem-solving efforts.

My agency:

OT1) Incorporates community policing principles into the agency’s mission statement and strategic plan.

a)

 YES

If yes, do you plan to use grant funding to enhance or expand this activity?

 YES

 NO

b)

 NO

If no, do you plan to use grant funding to initiate or implement this activity?

 YES

 NO

OT2) Practices community policing as an agency-wide effort involving all staff (i.e., not solely housed in a specialized unit).

a)

 YES

If yes, do you plan to use grant funding to enhance or expand this activity?

 YES

 NO

b)

 NO

If no, do you plan to use grant funding to initiate or implement this activity?  YES

 NO

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Section 6A. Law Enforcement & Community Policing Strategy

OT3) Incorporates problem-solving and partnership activities into personnel performance evaluations.

a)

 YES

If yes, do you plan to use grant funding to enhance or expand this activity?  YES

 NO

b)

 NO

If no, do you plan to use grant funding to initiate or implement this activity?  YES

 NO

Technology

Technology provides agencies with the tools to communicate more effectively externally with the public and internally with their own staff and the ability to understand and analyze community problems.

My agency:

TEC01) Ensures that agency staff have appropriate access to relevant data (calls for service, incident and arrest data, etc.).

a)

 YES

If yes, do you plan to use grant funding to enhance or expand this activity?  YES

 NO

b)

 NO

If no, do you plan to use grant funding to initiate or implement this activity?  YES

 NO

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TEC02) Uses technology (e.g., crime mapping or statistical software) to analyze and understand problems in the community.

a)

 YES

If yes, do you plan to use grant funding to enhance or expand this activity?

 YES

 NO

b)

 NO

If no, do you plan to use grant funding to initiate or implement this activity?

 YES

 NO

TEC03) Uses technology (e.g., GIS/GPS for deployment or laptops for field reporting) to improve the agency’s overall efficiency and effectiveness.

a)

 YES

If yes, do you plan to use grant funding to enhance or expand this activity?

 YES

 NO

b)

 NO

If no, do you plan to use grant funding to initiate or implement this activity?

 YES

 NO

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Section 6A. Law Enforcement & Community Policing Strategy

TEC04) Provides officers with necessary equipment to better prevent and/or respond to crime and disorder problems.

a)

 YES

If yes, do you plan to use grant funding to enhance or expand this activity?

 YES

 NO

b)

 NO

If no, do you plan to use grant funding to initiate or implement this activity?

 YES

 NO

Community policing strategy narrative

Please describe your agency’s implementation strategy for this program (if awarded), with specific reference to each of the following elements of community policing: (a) community partnerships and support, including consultation with community groups, private agencies, and/or other public agencies; (b) related governmental and community initiatives that complement your agency’s proposed use of COPS Office funding; and (c) organizational transformation—how your agency will use these funds, if awarded, to reorient its mission to community policing or enhance its involvement in and commitment to community policing.
In the space provided, please address your agency’s implementation strategy for this program with specific reference to each of the following elements of community policing:
(a) Community partnerships and support, including consultation with community groups, private agencies, and/or other public agencies.
[Responses are limited to a maximum of 5,000 characters.]

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(b) Related governmental and community initiatives that complement your agency’s proposed use of COPS Office funding. [Responses are limited to a maximum of 5,000 characters.]
(c) Organizational transformation—how your agency will use these funds, if awarded, to reorient its mission to community policing or enhance its involvement in and commitment to community policing. [Responses are limited to a maximum of 5,000 characters.]
CP1) To what extent is there community support in your jurisdiction for implementing the proposed grant activities?  a) High level of support  b) Moderate support  c) Minimal support CP2) If awarded, to what extent will the grant activities impact the other components of the criminal justice system in your jurisdiction?  a) Potentially decreased burden  b) No change in burden  c) Potentially increased burden
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Note to applicant: Section 6B is for CHP applicants only.
Section 6B. Law Enforcement & Community Policing Strategy
Community policing strategy
COPS Office grants must be used to reorient the mission and activities of law enforcement agencies through initiating community policing or enhancing their involvement in community policing with the officers hired under this grant program, or an equal number of veteran officers who have been redeployed to implement this plan after hiring the entry-level COPS-funded officers. If awarded funds, your responses to sections II(a) and II(b) that follow will constitute your agency’s community policing strategy under this grant. Your organization may be audited or monitored to ensure that it is initiating or enhancing community policing in accordance with this strategy. The COPS Office may also use this information to understand the needs of the field, and potentially provide for training, technical assistance, problem solving and community policing implementation tools. Please note that the COPS Office recognizes that your COPS-funded officer(s) (or an equal number of veteran officers who are redeployed after hiring the entry-level COPS-funded officers) will engage in a variety of community policing activities and strategies, including participating in some or all aspects of your identified community policing strategy. Your community policing strategy may be influenced and impacted by others within and outside of your organization; this is considered beneficial to your community policing efforts.
At any time during your grant, you should be prepared to demonstrate (1) the community policing activities engaged in prior to the grant award that are detailed in section I of this application and (2) how the grant funds and grant-funded officers (or an equal number of redeployed veteran officers) were specifically used to enhance (increase) or initiate community policing activities according to your community policing strategy contained in sections II(a) and II(b) of this application.
Finally, we also understand that your community policing needs may change during the life of your grant. Minor changes to this strategy may be made without prior approval of the COPS Office; however, grantees will be required to report on progress and/or changes to the community policing strategy (if any) through required progress reports. If your agency’s community policing strategy changes significantly, you must submit those changes to the COPS Office for approval. Changes are “significant” if they deviate from the specific crime problems(s) originally identified and approved in the community policing strategy submitted with the application. In some cases, changes to the approved community policing approaches may also be deemed significant and may require approval of a modified community policing strategy by the COPS Office, depending on the scope and nature of those changes as identified in the quarterly progress reports.

Case 2:17-cv-07215-R-JC Document 54-1 Filed 01/12/18 Page 51 of 208 Page ID #:1798
COPS Office Application Attachment to SF-424
Community policing definition framework

The following is the COPS Office definition of community policing that emphasizes the primary components of community partnerships, organizational transformation, and problem solving. Please refer to the COPS Office website (www.cops.usdoj.gov) for further information regarding this definition.
Community policing is a philosophy that promotes organizational strategies that support the systematic use of partnerships and problem-solving techniques to proactively address the immediate conditions that give rise to public safety issues such as crime, social disorder, and fear of crime.
The COPS Office has completed the development of a comprehensive community policing self-assessment tool for use by law enforcement agencies. Based on this work, we have developed the following list of primary subelements of community policing. Please refer to the COPS Office website (www.cops.usdoj.gov) for further information regarding these subelements.

Community Partnerships: Collaborative partnerships between the law enforcement agency and the individuals and organizations they serve to both develop solutions to problems and increase trust in police

Organizational Transformation: The alignment of organizational management, structure, personnel, and information systems to support community partnerships and proactive problem-solving efforts

Problem Solving: The process of engaging in the proactive and systematic examination of identified problems to develop effective responses that are rigorously evaluated

Other government agencies Community members/groups Nonprofits/service providers Private businesses Media

Agency Management
Climate and culture Leadership Labor relations Decision making Strategic planning Policies Organizational evaluations Transparency

Scanning: Identifying and prioritizing Analysis: Analyzing problems Response: Responding to problems Assessment: Assessing problemsolving initiatives Using the crime triangle to focus on immediate conditions (victim/offender/location)

Organizational Structure Geographic assignment of officers Despecialization Resources and finances
Personnel Recruitment, hiring, and selection Personnel supervision/evaluations Training
Information Systems (Technology) Communication/access to data Quality and accuracy of data

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Section 6B. Law Enforcement & Community Policing Strategy

I. Current organizational commitment to community policing

1) For each of the following statements, please answer in terms of existing agency policies and practices as they relate to collaborative partnerships and problem solving activities. (Please check all that apply.)

Activity
Q1a. The agency mission statement, vision, and/or goals includes references to:
Q1b. The agency strategic plan includes specific goals and/or objectives relating to:
Q1c. The agency recruitment, selection, and hiring processes include elements relating to:
Q1d. Annual line officers’ evaluations assess performance in:
Q1e. Line officers receive regular (at least once every two years) training in:

Community Partnerships     

Problem Solving     

2) Which of the following internal management practices does your agency currently employ? (Please check all that apply.)  Assignment of officers to specific neighborhoods or areas for longer periods of time to enhance customer service and facilitate more contact between police and citizens
 Assignment of officers to geographic hot spots that are defined statistically by creating incident maps to identify geographic clustering of crime or disorder  In-service training for officers on basic and advanced community policing principles  Early Intervention Systems that help identify officers who may be showing signs of stress, personal problem, and questionable work conduct
 Alternatives to formal disciplinary practices that encourage ethical behavior  None of the above
3) Which of the following do you count or measure to annually assess your agency’s overall performance? (Please check all that apply.)
 Response times  Reported crimes  Reported incidents
 Arrests and citations  Problem solving outcomes

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COPS Office Application Attachment to SF-424  Department employee satisfaction  Clearance rates  Complaints of officer behavior  Reduction of crime in identified hot spots  Repeat calls for service  Social disorder/nuisance problems (graffiti, panhandling, loitering, etc.)  Satisfaction with police services  Fear of crime  Victimization (i.e., nonreported crime)  Community meetings held or attended  Use of force incidents  Meeting the priorities as identified in your agency strategic plan  My agency does not conduct annual assessments of overall performance 4) Through which of the following does your agency routinely share information with community members? (Please check all that apply.)  Neighborhood, beat, and/or school meetings  Local media outlets  Agency newsletter  Neighborhood newsletters  Agency website  Social networking (blogs, Twitter feeds, Facebook pages, etc.)  Citizen alert system (telephone, e-mail, text, etc.)  Citizen alert system that is geographically targeted, based on updated hot spots  Public access television/radio  Community organization board membership  Public forums with chief/sheriff/command staff  Posters, billboards, flyers
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Section 6B. Law Enforcement & Community Policing Strategy
 None of the above 5) In which of the following ways does your agency formally involve community members in influencing agency practices and operations? (Please check all that apply.)  Citizen police academies  Volunteer activities  Auxiliary police programs  Civilian review boards (e.g., disciplinary review boards)  Citizen advisory groups (i.e., informal advisory function)  Involvement in hiring decisions (interview panels, selection boards, etc.)  Involvement in contributing to annual line officer performance reviews  Representation on promotional boards  Participation in accountability and performance reporting and tracking meetings  Participation in complaint resolution process (formal mediation, disciplinary boards, etc.)  None of the above
II(a). Proposed community policing strategy: Problem solving and partnerships
COPS Office grants must be used to initiate or enhance community policing activities with either the newly-hired officers funded by this grant program, or an equivalent number of veteran officers who are redeployed to implement this community policing strategy after hiring the additional entry-level officers with COPS Office grant funds. In this section you will be asked to identify the crime and disorder problem/focus area and the partners to be engaged through your requested COPS Office funding. Identifying the specific problem/focus area and partnerships that your agency plans to focus on is important to ensure that you satisfy the requirements for COPS Office funding under this program and to ensure that ultimately the additional grant-funded officers (or equivalent number of redeployed veteran officers) will initiate or enhance your agency’s capacity to implement community policing strategies and approaches.
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COPS Office Application Attachment to SF-424 6) Using the following list, select a problem/focus area that will be addressed by the officers requested in this application. Please choose the option that best fits your problem. You may select one problem/focus area to address through this grant funding. When identifying a problem, it is important to think about the nature of similar incidents that taken together comprise the problem, and accordingly describe it in precise, specific terms (e.g. “burglary of retail establishments”, rather than just “burglary”). In doing this, it can be helpful to consider all aspects of the problem, including the likely offenders, the suitable targets/victims, and how these come together in time and space.
Illegal immigrations
Please specify your focus on partnering with the federal law enforcement to address illegal immigration for information sharing, 287 (g) partnerships, task forces and honoring detainers.
Child and youth safety focus
Child sexual predators and internet safety Please specify your child sexual predator focus; for example, noncompliant sexual offenders, trafficking in children, child sexual abuse offenses, cyber-related crimes, etc.
School-based policing through School Resource Officers By selecting this focus area your agency is committing that, if awarded, all officer positions requested in this application (or the equivalent number of redeployed veteran officers) will be used to deploy School Resource Officers and address problems in and around primary and secondary schools. Please specify the areas the School Resource Officer(s) would address (check all that apply):  address crime problems, gangs, and drug activities affecting or occurring in or around an elementary or secondary school;  develop or expand crime prevention efforts for students;  educate youth in crime prevention and safety;  develop or expand community justice initiatives for students;  train students in conflict resolution, restorative justice, and crime awareness;  assist in the identification of physical changes in the environment that may reduce crime in or around the school;  assist in developing school policy that addresses crime and to recommend procedural changes to enhance school safety.
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Section 6B. Law Enforcement & Community Policing Strategy Children exposed to violence Please specify your children exposed to violence focus; for example, children’s reactions to domestic violence; witnessing community violence; exposure to catastrophic events; etc.
Youth crime and delinquency Please specify your youth crime and delinquency focus; for example, teen gang activity, bullying, truancy, loitering in public places, etc.
Other child and youth safety focus Please specify.
Drug abuse education, prevention, and intervention
Please specify your focus on education, prevention, and intervention to combat drug use and abuse; for example, marijuana, heroin, prescription opioids, etc.
Homeland security problems
Protecting critical infrastructure problems Please specify your critical infrastructure problem; for example, addressing threats against facilities, developing and testing incident response plans, etc.
Information or intelligence problems Please specify your information and/or intelligence problem; for example, the need for criminal intelligence capacity, engaging in information sharing, expanding utilization of fusion centers, etc.
Other homeland security problem Please specify.
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COPS Office Application Attachment to SF-424
Nonviolent crime problems and quality-of-life policing
Burglary Please specify your burglary problem; for example, burglary of single family houses, burglary of retail establishments, burglary of construction sites, etc.
Fraud Please specify your fraud problem; for example, check fraud, identity theft, credit card fraud, fraud of the elderly, etc.
Larceny/Theft (non-motor vehicle) Please specify your larceny/theft problem; for example, shoplifting, pickpocketing, etc.
Motor vehicle theft/theft from motor vehicle Please specify your motor vehicle theft problem/theft from motor vehicle; for example, organized motor vehicle theft, joy riding, theft of motor vehicles from parking garages, theft from motor vehicles in targeted area, etc.
Vandalism Please specify your vandalism problem; for example, graffiti, vandalism of public parks, tagging, etc.
Social disorder Please specify your disorder problem; for example, disorder in public places, disorder at day laborer sites, disorder on school grounds, etc.
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Section 6B. Law Enforcement & Community Policing Strategy Quality-of-life problem Please specify your quality-of-life problem; for example, abandoned vehicles, panhandling, fear of crime, vacant properties, etc.
Prostitution Please specify your prostitution problem; for example, street prostitution, organized prostitution, etc.
Misdemeanor crimes Please specify. Disorderly activity Please specify. Other nonviolent crime problem Please specify.
Building trust and respect
Please specify your focus on mutual respect and understanding between police and the communities they serve; for example, impartial policing, transparency, fairness and respect, community engagement, diversity, etc.
Traffic/pedestrian safety problems
Traffic congestion Please specify your traffic congestion problem; for example, traffic congestion around schools, traffic congestion due to special events, traffic congestion during peak hours, etc.
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COPS Office Application Attachment to SF-424 Pedestrian safety Please specify your pedestrian safety problem; for example, pedestrian safety during nighttime hours, pedestrian safety around schools, pedestrian safety at crosswalks, pedestrian traffic on roadways, etc.
Driver safety Please specify your driver safety problem; for example, driving under the influence, speeding in residential areas, street racing, distracted driving, etc.
Traffic accidents Please specify your traffic accident problem; for example, traffic accidents by commercial drivers, traffic accidents in residential areas, traffic accidents by young drivers, etc.
Drunk driving Please specify. Other traffic/pedestrian safety problem Please specify.
Violent crime problems
Assault Please specify your assault problem; for example, assaults in and around bars, gang violence, etc.
Homicide Please specify your homicide problem; for example, gun homicide by serious previous offenders, gang related homicide, domestic homicides, etc.
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Section 6B. Law Enforcement & Community Policing Strategy Rape Please specify your rape problem; for example, acquaintance rape, rape in college dorm rooms, child or domestic rape, etc.
Robbery Please specify your robbery problem; for example, robbery of convenience stores, robbery of taxi drivers, bank robbery, etc.
Domestic/family violence Please specify your domestic/family violence problem; for example, domestic violence, stalking, child abuse, elder abuse, etc.
Gun violence Please specify your gun violence problem; for example, gun violence by juvenile gang members, drug related gun violence, etc.
Please also include the number of aggravated assaults with a firearm in your jurisdiction during the last calendar year:
Human trafficking Please specify. Criminal gangs Please specify.
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COPS Office Application Attachment to SF-424 Drug manufacturing, drug dealing, drug trafficking
Please specify.
Other violent crime problem
Please specify.
6a) Briefly describe the problem/focus area that you will address with these grant funds and your approach to the problem. [4,000 characters or less]

6b) Will the problem/focus area described above be addressed with an explicit place-based strategy (e.g., hot-spot policing) that targets specific addresses or locations with a disproportionate share of crime or disorder?

 Yes

 No

6c) Which of the following activities will your agency and officers hired under this grant (or an equivalent number of redeployed veteran officers) engage in as it pertains to your identified crime hot spot? (Please check all that apply.)

 Enhance enforcement efforts (sweeps or increased patrol)

 Targeted community alerts

 Prevention efforts directed at high-risk victims

 Prevention efforts directed at high-risk offenders

 Ongoing identification of crime concentrations by qualified analysts

 Formal evaluations of the effectiveness of interventions (e.g., using pre/post-test and/or comparison groups)

 None of the above

7) Which of the following information sources did you use to prioritize this problem/focus area as a problem/focus area to address through this grant program? (Please check all that apply.)

 Police department data (e.g., police reports, calls for service, crime data, citizen complaints)

 Agency personnel (e.g., officer feedback, command staff priorities)

 Other local non law enforcement government agency data

 Community based organizations (e.g., faith-based, nonprofits, social service providers)

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Section 6B. Law Enforcement & Community Policing Strategy
 Local businesses  Individual community members/community meetings  Community survey  Local government officials  The media  None of the above 8) If awarded funds, my agency will improve our understanding of this problem/focus area by examining the following.(Please check all that apply.)  Routinely collected law enforcement data/information related to the problem (e.g., arrests, incident reports, calls for service)  The location and/or time aspects of the problem/focus area (i.e., mapping)  The conditions and environmental factors related to the problem/focus area  The strengths and limitations of current responses to the problem/focus area  Non-law enforcement data/information related to the problem/focus area (e.g., insurance crash data, other government agency data, census data, survey data)  Existing research and best practices related to the problem/focus area  Data/information from the community related to the problem/focus area (e.g., resident associations, business groups, nonprofit community service organizations)  Information about offenders contributing to the problem/focus area (e.g., offender interviews, arrest records)  Information about victims affected by the problem/focus area (e.g., crime reports, victim interviews)  Strengths and weaknesses of previous responses to the problem/focus area  None of the above 9) If awarded funds, my agency will use the following information sources to assess our response to this problem/focus area to determine whether the response was implemented and achieved the desired outcomes. (Please check all that apply.)  Routinely collected law enforcement data/information related to the problem/focus area (e.g., arrests, incident reports, calls for service)  Data/information regarding whether the response was implemented as planned  Police data collected for this specific problem/focus area (problem-specific surveys, field interview contact cards, etc.)
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COPS Office Application Attachment to SF-424  Non-police data/information related to the problem/focus area (e.g., insurance crash data, other government agency data, census data, survey data)  Data/information from the community related to the problem/focus area (e.g., resident associations, business groups, nonprofit community service organizations)  Information about offenders contributing to the problem/focus area (e.g., offender interviews, arrest records, probation/parole data)  Information about victims and/or stakeholders affected by the problem/focus area (e.g., crime reports, victim interviews)  None of the above 10) To the best of your ability at this time, please select from the list below what your primary goals are in responding to your selected problem/focus area. (Please select up to 3.)  Eliminating the problem/focus area  Reducing the number of incidents  Increasing public trust in your agency  Reducing the seriousness of the incidents or the amount of harm  Reducing the number of victims and/or repeat victims  Reducing the number of offenders and/or repeat offenders  Moving the problem/focus area to another area  Getting other agencies and/or stakeholders to assume responsibility for the problem/focus area  Improving the response to the problem/focus area (i.e., more comprehensive and coordinated way of dealing with the problem/focus area, providing better services to victims, or greater efficiency in dealing with the problem/focus area)  Improving citizen perceptions of the problem/focus area  Increasing the number of arrests/citations  Reducing the number of calls for service  None of the above
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Section 6B. Law Enforcement & Community Policing Strategy

11) An important part of a comprehensive community policing strategy is the formation of partnerships, such as working with other public agencies, private organizations, or participation in regional law enforcement partnerships. If awarded funds, will your agency and the grant-funded officers (or an equivalent number of redeployed veteran officers) initiate or enhance a partnership with an external group/organization to develop responses to this problem/focus area?

 Yes

 No

Note to applicant: If Yes, go to 11a; If No, go to 12.

11a) If awarded funds, how many external groups/organizations will your agency initiate or enhance a partnership with to develop responses to this problem/focus area?

11b) Name the most important external groups/organizations that your agency will initiate or enhance a partnership with to develop responses to this problem/focus area (maximum of 3 partners). Note: you may attach optional letters of this support from any or all of these prospective partners in section 13 of the application. You will be limited to listing no more than 3 partners per public safety problem/focus area.
Partner 1 Partner 2 Partner 3
Note to applicant: Answer the following for each partner identified.
11c) For this partner, please indicate the statement that best characterizes this partner:  Local government agencies (non-law enforcement, e.g., probation/parole, parks and recreation, code enforcement)  Community based organizations (e.g., faith-based, community redevelopment groups, social service providers, resident associations)  Businesses operating in the community  Tribal law enforcement agencies Note to applicant: If this box is selected, question 11d will be asked.  Federal, state, or local law enforcement agencies (non-tribal) including through multijurisdictional/regional partnerships  Local educational institutions (schools/colleges/universities)  Individual stakeholders (persons residing, working, or with an interest in the community or problem)

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COPS Office Application Attachment to SF-424

11d) For your tribal law enforcement agency partner, please indicate if you have a formalized MOU/MOA signed by both partners that governs partnership activities, roles, and responsibilities:

 Yes

 No

Note to applicant: Questions are no longer problem specific; please answer the following questions once per respondent.

II(b). Proposed community policing strategy: Organizational transformation

COPS Office grants must be used to initiate or enhance community policing activities. In this section you will be asked to identify the organizational change(s) that your agency plans to focus on through your requested COPS Office funding. Identifying the specific organizational change(s) that your agency plans to focus on is important to ensure that you satisfy the requirements for COPS Office funding under this program, and to ensure that ultimately the use of these funds will initiate or enhance your agency’s capacity to implement community policing approaches.
12) If awarded funds, will your agency initiate or enhance any of the following internal changes to personnel management? (Select no more than 2 internal changes to personnel management that will be addressed with these grant funds.)
 Flexibility in officer shift assignments to facilitate addressing specific problems
 Assignment of officers to specific neighborhoods or areas for longer periods of time to enhance customer service and facilitate more contact between police and citizens
 Recruitment and hiring practices that reflect an orientation towards problem solving and community engagement
 In-service training for officers on basic and advanced community policing principles
 Field training officer (FTO) programs that teach and test problem solving, community engagement, and critical thinking skills
 Measurment and inclusion of non-enforcement proactive community engagement efforts as part of officer performance evaluations
 De-escalation training to sworn personnel and promotion of de-escalation as an important strategy to diffuse potentially volatile situations
 Implicit bias (fair and impartial) training to sworn personnel
 Early intervention systems that help identify officers who may be showing early signs of stress, personal problems, and questionable work conduct
 Career development and/or promotional processes (e.g., seargeant exams) that reinforce problem solving and community engagement

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Section 6B. Law Enforcement & Community Policing Strategy  Specific programs that improve the safety and wellness of personnel throughout your organization.  None of the above Note to applicant: Please provide a narrative for each internal change to personnel management identified (2,000 characters or less).
13) If awarded funds, will your agency initiate or enhance any of the following internal changes to agency management? (Select up to 2 internal changes to agency management that will be addressed with these grant funds.)  Agency mission statement, vision, and/or goals that reflect the core values of community policing  Agency strategic plan that outlines the goals and objectives around community policing and other departmental priorities  Organizational performance measurement systems that include community policing metrics, and conduct annual assessments of agency performance  Technology systems that provide officers, analysts, and the community better and more timely access to data and information  Mediation strategies to resolve citizen complaints  Collection, analysis, and use of crime data and information in support of problem solving goals  Formal accreditation process  System to capture and track problem solving and partnership efforts and activities  An organizational assessment of community policing
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COPS Office Application Attachment to SF-424  Level and frequency of communication with the community on crime problems and agency activities to enhance transparency  None of the above Note to applicant: Please provide a narrative for each internal change to personnel management identified (2,000 characters or less).
III. General community support and engagement
14) Did your agency consult with any of the following groups or organizations on the development of this community policing strategy? (Please check all that apply.)  Local government agencies (non-law enforcement, e.g., probation/parole, parks and recreation, code enforcement)  Community based organizations (e.g., faith-based, community redevelopment groups, social service providers, resident associations)  Businesses operating in the community  Tribal law enforcement agencies (outside your jurisdiction)  Other federal, state, or local law enforcement agencies  Multijurisdictional or regional task forces/partnerships  Local educational institutions (schools/colleges/universities)  Local government officials  Individual stakeholders residing, working or with an interest in the community and/or problem  None of the above
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Section 6B. Law Enforcement & Community Policing Strategy 15) To what extent are there related governmental and/or community initiatives that complement your agency’s proposed community policing strategy?  a) There are a significant number of related initiatives  b) There are a moderate number of related initiatives  c) There are a minimal number of related initiatives  d) There are no related initiatives 16) To what extent is there community support in your jurisdiction for implementing the proposed community policing strategy?  a) High level of support  b) Moderate level of support  c) Minimum level of support 17) If awarded funds, to what extent will the community policing strategy impact the other components of the criminal justice system in your jurisdiction?  a) Potentially decreased burden  b) No change in burden  c) Potentially increased burden
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Section 7. Need for Federal Assistance
A. Explanation of need for federal assistance
All applicants are required to explain their inability to address the need for this award without federal assistance. Please do so in the space below. [Please limit your responses to a maximum of 4,000 characters.]
B. Service population
1. Enter the total population of the government entity applying for this grant using the latest census estimate available in the American Fact Finder at FactFinder2.census.gov.
2. Check here if the population of the entity applying for this grant is not represented by U.S. Census figures (colleges, special agencies, school police departments, etc.).  Note to applicant: If this box is checked, complete 2a–2b.] 2a. If the population of the entity applying for this grant is not represented by U.S. Census figures, please indicate the size of the population as of the latest available estimate:
2b. Please indicate the source of this population estimate (e.g., website address):

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COPS Office Application Attachment to SF-424
3. What is the actual population your department serves as the primary law enforcement entity?
This may or may not be the same as the population specified above. For example, a service population may be the census population minus incorporated towns and cities that have their own police department within your geographic boundaries or estimates of ridership (e.g., transit police) or visitors (e.g., park police). An agency with primary law enforcement authority is defined as having first responder responsibility to calls for service for all types of criminal incidents within its jurisdiction.

Note to applicant: This number should be prepopulated from section 5A. 3a. If applicable, please explain why the service population differs from the census population:

C. Fiscal health
Note: If your application involves a contract for law enforcement services, please refer to the instructions regarding contracting arrangements found in section 7 “Fiscal Health” of the Application Guide before completing this section.
1) Enter your law enforcement agency’s total operating budget for the current AND previous two fiscal years. Please note: All figures must be rounded to the nearest whole dollar.

CURRENT FISCAL YEAR (2017)

$

PREVIOUS FISCAL YEAR (2016)

$

PREVIOUS FISCAL YEAR (2015)

$

2) Since January 1, 2016, what percentages of the following employees in your jurisdiction (city, county, state, tribal, university) have been reduced through layoffs? Please note: All figures must be rounded to the nearest whole percent.

Civilian Law Enforcement Agency Personnel

%

Sworn Law Enforcement Agency Personnel

%

Other Government Agency Personnel

%

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Section 7. Need for Federal Assistance

3) The U.S. Census Bureau American Community Survey (ACS) provides multi-year poverty rate estimates for communities. Please go to the U.S. Census Bureau’s American FactFinder (FactFinder2.census.gov) to determine the percentage of individuals in poverty in your jurisdiction. For jurisdictions not included in the census (e.g., schools, universities, transit, parks), please check the box for “Not Applicable.” Please see the program Application Guide for additional information and help in using the American FactFinder. Please note: All figures must be rounded to the nearest whole percent.

Percentage of individuals in poverty

%

 Not Applicable
4) The Bureau of Labor Statistics’ Local Area Unemployment Statistics (LAUS) program provides monthly estimates of unemployment for communities. Please go to the Bureau of Labor Statistics’ LAUS website (www.bls.gov/lau/data.htm) to find detailed instructions for looking up your local area’s unemployment rate. It may be necessary to select the nearest best match to your jurisdiction (for example, a city of fewer than 25,000 people may report their county level rate). Please see the program Application Guide for additional information and help in using the LAUS data. For jurisdictions not included in the census (e.g., schools, universities, transit, parks), please check the box for “Not Applicable.” Please note: All figures must be rounded to the nearest whole percent.

Percentage unemployed for 2016:

%

 Not Applicable
5) Indicate if your jurisdiction has experienced any of the following events since January 1, 2016: (Check all that apply.)
 A declaration of natural or other major disaster or emergency has been made pursuant to the Robert T. Stafford Disaster Relief and Emergency Assistance Act (42 U.S.C. 5121 et seq.).
 A designation as an economically or financially distressed area by the state in which the applicant is located.
 Downgrading of the applicant’s bond rating by a major rating agency.
 Has filed for bankruptcy or been declared bankrupt by a court of law.
 Has been placed in receivership or its functional equivalent by the state or Federal Government.
 Has taken on additional law enforcement duties and responsibilities resulting from an agency merger or the disbanding of a neighboring law enforcement agency (which did not result in a new or supplemented funded contract to provide these law enforcement services).

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COPS Office Application Attachment to SF-424 6) In addition to the data collected elsewhere in this application, the COPS Office would like to capture information from jurisdictions that may have faced an unanticipated catastrophic event that has a significant impact on the delivery of law enforcement services or experienced an unusually large increase in the number of homicides in the past year. Examples of unanticipated catastrophic events include mass shootings, terrorist attacks, natural disasters, or other events leading to mass casualties that would not necessarily be reflected in the UCR crime statistics previously reported. Please note that if your jurisdiction is faced with an unanticipated catastrophic event (e.g., mass shooting, terrorist attack, other mass casualty event) after submission of this application but before the application closing date, you should contact the COPS Office immediately at 800-421-6770 to update your application to include this information. If your agency has experienced an unanticipated catastrophic event or an unusually large increase in the number of homicides in the time period from January 1, 2016 to present, check this box.  Note to applicant: If this box is checked, these instructions will be provided. You indicated that your jurisdiction has experienced an unanticipated catastrophic event. You must submit a narrative description of the catastrophic event with as much detail as possible. Please address the following: • Description of Event (including number of casualties) • Type of Event (natural disaster, mass shooting, bombing, unusually large increase in the number of homicides,
etc.) • Impact of the Event on Delivery of Law Enforcement Services • Duration of the Event (how long will law enforcement services be impacted by the event until recovery) • Law Enforcement Response and Recovery Efforts Please attach a narrative with the above information in section 13 of this application. Attachment must be in Microsoft Word or Adobe PDF format.
D. Property/Violent crime
Please select at least one statement below:  My agency can report crime data for all 3 years (please input in table below).  My agency cannot report crime data for 2016.  My agency cannot report crime data for 2015.  My agency cannot report crime data for 2014.
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Section 7. Need for Federal Assistance

1) Using UCR crime definitions, enter the actual number of incidents reported to your agency in the previous three calendar years (2012–2014) for the following crime types. Note that only those incidents for which your agency had primary response authority should be provided. Please enter 0 (zero) to indicate no incidents in a particular year/type. Leave blanks only where data is unavailable.

UCR Data * Criminal Homicide Forcible Rape Robbery Aggravated Assault Burglary Larceny (except motor vehicle theft) Motor Vehicle Theft

2016

2015

2014

Please note: Only those incidents for which your agency had primary response authority should be provided. An agency with primary response authority is defined as the first responder to calls for service for all types of criminal incidents within its jurisdiction. Agencies are not considered to have primary response authority if they only respond to or investigate a specific type(s) of crime(s); respond to or investigate crimes within a correctional facility; serve warrants; provide courthouse security; transport prisoners; and/or have cases referred to them for investigation or investigational support.
*Note: If your agency currently reports to NIBRS or does not report crime incident totals at all, please ensure that your data is converted to UCR Summary Data style. Please see the COPS Office Application Guide or the FBI’s UCR Handbook (www.fbi.gov/about-us/cjis/ucr/additional-ucr-publications/ucr_handbook.pdf/at_download/file) for more information.

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Section 8. Continuation of Project After Federal Funding Ends

If you are applying for a COPS Office grant with a post-award retention requirement, please complete A. If you are applying for a COPS Office grant without a post-award retention requirement, please complete B.

A. Continuation of project after federal funding ends (for COPS Office grants with a retention plan requirement)

Applicants must plan to retain all sworn officer positions awarded under your COPS hiring grant for a minimum of 12 months at the conclusion of 36 months of federal funding for each position. The retained COPS Office funded positions should be added to your agency’s law enforcement budget with state and/or local funds at the end of grant funding, over and above the number of locally-funded sworn officer positions that would have existed in the absence of the grant. These additional position(s) must be retained using state, local, or other non-federal funding only. You may not use funds awarded by other federal grants to cover the costs of retention. At the time of grant application, applicants must affirm that they plan to retain the positions and identify the planned source(s) of retention funding. We understand that your agency’s source(s) of retention funding may change during the life of the grant. Your agency should maintain proper documentation of any changes in the event of an audit, monitoring or other evaluation of your grant compliance. Please refer to the frequently asked questions on retention which can be found here www.cops.usdoj.gov/Default.asp?Item=2115.

1. Will your agency plan to retain any additional positions awarded under this grant for a minimum of 12 months at the conclusion of federal funding for each position?

 YES

 NO

Note: Agencies that do not plan to retain all the positions awarded under this grant are ineligible to receive CHP funding.

2. Please identify the source(s) of funding that your agency plans to use to cover the costs of retention (check all that apply):

 General funds

 Raise bond/tax issue

 Private sources/donations

 Nonfederal asset forfeiture funds (subject to approval from the state or local oversight agency)

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COPS Office Application Attachment to SF-424  Fundraising efforts  State, local, or other nonfederal grant funding  Other (Please provide a brief description of the source(s) of funding not to exceed 500 characters.)

B. Continuation of project after federal funding ends (for COPS Office grants with no retention plan requirement)

Please complete these questions to indicate any plans you may have to continue this program, project, or activity after the conclusion of federal funding.

1. Does your agency plan to obtain necessary support and continue the program, project, or activity following the conclusion of federal support?

 YES

 NO

2. Please identify the source(s) of funding that your agency plans to use to continue the program, project, or activity following the conclusion of federal support (check all that apply):

 General funds

 Raise bond/tax issue

 Private sources/donations

 Nonfederal asset forfeiture funds (subject to approval from the state or local oversight agency)

 Fundraising efforts

 State, local, or other nonfederal grant funding

 Other (Please provide a brief description of the source(s) of funding not to exceed 500 characters.)

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Section 9. School Safety Assessment
Applicants need not worry about this section.

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Section 10. Executive Summary
Please provide a brief summary of how your agency will use this federal funding. Refer to the COPS Office Program Specific Application Guide for clarification on specific information to include in your summary, and be sure to provide a description of how you expect this grant to impact public safety and/or crime prevention in your community. The Executive Summary may be used to keep Congress or other executive branch agencies informed on law enforcement strategies to deter crime in your community. [Responses are limited to a maximum of 4,000 characters.]

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Section 11. Project Description (Narrative)
Please include in your application an in-depth narrative response detailing your proposed project. Please refer to the COPS Office Application Guide: "How to Apply" for information on what should be included in your response, as well as any additional formatting requirements and page length limitations. Note: Community Policing Development (CPD), COPS Anti-Methamphetamine Program (CAMP), and Anti-Heroin Task Force (AHTF) Program applicants must submit their entire project description as an attachment in Section 13 of this application. A. Problem Identification [Responses are limited to a maximum of 4,000 characters.]

B. Project Goals/Objectives

[Responses are limited to a maximum of 4,000 characters.]

C. Building Relationships and Solving Problems [Responses are limited to a maximum of 4,000 characters.]

D. Implementation Plan [Responses are limited to a maximum of 4,000 characters.]

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COPS Office Application Attachment to SF-424

E. Evaluation Plan/Effectiveness of Program

[Responses are limited to a maximum of 4,000 characters.]

F. Project Description (Narrative) Attachment:
Community Policing Development (CPD), COPS Anti-Methamphetamine Program (CAMP), and Anti-Heroin Task Force (AHTF) Program applicants must submit their entire project description as an attachment in Section 13 of this application.

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Section 12. Official Partner(s) Contact Information

An official "partner" under the grant may be a governmental, private, school-district, or other applicable entity that has established a legal, contractual, or other agreement with the applicant for the purpose of supporting and working together for mutual benefits of the grant. Please see the COPS Office Application Guide for more information on official partners that may be required.

Title: First Name:

MI

Last Name:

Suffix: Select One …

Note to applicant: The choices in the “Suffix” drop-down menu are as follows:
Jr. Sr. M.D. Ph.D.

Name of Partner Agency (e.g., Smithville High School)

Type of Partner Agency (e.g., School District):

Street Address 1:

Street Address 2:

City:

Telephone:

Fax:

 Click here to add additional partners.

State:

E-mail:

ZIP Code:

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Section 13. Application Attachments
This section should be used to attach any required or applicable attachments to your grant applications (e.g., Memorandum of Understanding).
To complete the CAMP Project and Budget Narratives, applicants must follow each link to obtain the required forms. Your Project Narrative attachment must address each element on the following form: https://cops.usdoj.gov/pdf/2017AwardDocs/camp/2017_CAMP_Project_Narrative_508.pdf.
Your Budget Narrative attachment must address each element on the following form: https://cops.usdoj.gov/pdf/2017AwardDocs/camp/2017_CAMP_Budget_Narrative_508.pdf.
Once completed, all CAMP applicants must attach both the Project Narrative and Budget Narrative to Section 13 using the appropriate titles in the drop down menu below. Additional information is also provided in the CAMP Application Guide.
To complete the AHTF Project and Budget Narratives, applicants must follow each link to obtain the required forms. Your Project Narrative attachment must address each element on the following form: https://cops.usdoj.gov/pdf/2017AwardDocs/ahtf/2017_AHTF_Project_Narrative_508.pdf.
Your Budget Narrative attachment must address each element on the following form: https://cops.usdoj.gov/pdf/2017AwardDocs/ahtf/2017_AHTF_Budget_Narrative_508.pdf.
Once completed, all AHTF applicants must attach both the Project Narrative and Budget Narrative to Section 13 using the appropriate titles in the drop down menu below. Additional information is also provided in the AHTF Application Guide.
Community Policing Development applicants should submit the required Project Description described in Section 11 (maximum 20 pages or 10 pages for Microgrants), up to three Resumes/Vitas, the Budget Narrative (see Community Policing Development (CPD) COPS Office FY2017 Application Guide), Indirect Cost Rate Agreement (if applicable), Sole Source Justification (if applicable), budget justification documentation (pay scales, travel policies, etc.), and documentation justifying consultant rates over $550 per day if the consultant is hired through a noncompetitive bidding process (if applicable).
Additional attachments are strongly discouraged. Applicants should attach the vitae/resumes of up to three key project staff detailing work and educational history and highlighting any experience that is relevant to their ability to successfully carry out the proposed project. Vitae and resumes of key project personnel attachments do not count toward the page limit. All CPD applicants must attach a Budget Narrative. Your agency must create and attach a document that (1) describes each item requested or group of similar items requested; and (2) links each item or group of items to the proposed project. All items will be reviewed on a case-by-case basis and in context of the allowable and unallowable costs lists. Budget narratives do not count toward the 20-page limit. See section 14 “Budget Detail Worksheets and Budget Narrative” for instructions and sample information.
If awarded, grantees using CHP funding to hire and/or deploy School Resource Officers into schools agree that a signed Memorandum of Understanding (MOU) between the law enforcement agency and the school partner(s) must be submitted to the COPS Office before obligating or drawing down funds under this award. An MOU is not required at time of application; however, if the law enforcement agency already has an MOU in place that is applicable to the partnership, the MOU can be submitted as an attachment in section 13 of the grant application.

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COPS Office Application Attachment to SF-424
The MOU must contain the following: the purpose of the MOU; clearly defined roles and responsibilities of the school district and the law enforcement agency, focusing officers’ roles on safety; information sharing; supervision responsibility and chain of command for the SRO; and signatures. If awarded, grantee will agree that the MOU must be submitted and accepted by the COPS Office 90 days from the award start date that is located on the award document. The implementation of the COPS Hiring Program grant without submission and acceptance of the required MOU within the 90-day time frame may result in expenditures not being reimbursed by the COPS Office and/or award deobligation. Please refer to the program-specific application guide to determine if an MOU or other application attachments are required. The guide will also specify if optional attachments are permitted for submission.
ADD ATTACHMENTS

<<Upload Attachment 1 Name>> <<Upload Attachment 2 Name>>

Select One … Select One …

Please use appropriately descriptive file names (Program Narrative, Budget Detail Worksheet and Budget Narrative, Timelines, Memoranda of Understanding, Resumes, etc.) for all attachments.
Please do not submit executable file types as application attachments. These disallowed file types include, but are not limited to, the following extensions: .com, .bat, .exe, .vbs, .cfg, .dat, .db, .dbf, .dll, .ini, .log, .ora, .sys, and .zip. The system may reject applications with files that use these extensions.

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Section 14. Budget Detail Worksheets
Instructions for completing the budget detail worksheets
The following budget detail worksheets are designed to allow all COPS Office grant and cooperative agreement applicants to use the same budget forms to request funding. Allowable and unallowable costs vary widely and depend upon the type of COPS Office program. The maximum federal funds that can be requested and the federal/local share breakdown requirements also vary.
Please refer to the program-specific application guide to determine the allowable/unallowable costs, the maximum amount of federal funds that can be requested, and the federal/local share requirements for the COPS Office program for which your agency is applying. To assist you, sample budget detail worksheets are included in each application guide.
Please complete each section of the budget detail worksheets applicable to the program for which you are applying (see the program-specific application guide for requirements). If you are not requesting anything under a particular budget category, please check the appropriate box in that category indicating that no positions or items are requested.
All calculations will be rounded to the nearest whole dollar. Once the budget for your proposal has been completed, a budget summary page will reflect the total amounts requested in each category, the total project costs, and the total federal and local shares.
If you need assistance completing the budget detail worksheets, please call the COPS Office Response Center at 800-421-6770.
1. How many new entry level, full-time sworn officer positions not currently funded in your agency(s) local budget are your agency requesting in this application?
If your agency is not requesting funding for new entry level, full-time sworn officer positions in this application, please insert a zero (0) in the response box. Please note that you should not account for requests for officer overtime here.

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COPS Office Application Attachment to SF-424

A. Sworn officer positions

No sworn officer positions requested



Part 1. Instructions

This worksheet will assist your agency in reporting your agency’s current entry level salary and benefits and identifying the total salary and benefits request per officer position for the length of the grant term. Please list the current entry level base salary and fringe benefits rounded to the nearest whole dollar for one full-time sworn officer position within your agency. Do not include employee contributions. (Please refer to the program-specific application guide for information on the length of the grant term for the program under which you are applying.)
Special note regarding sworn officer fringe benefits: For agencies that do not include fringe benefits as part of the base salary costs and typically calculate these separately, the allowable expenditures may be included under part 1, section B. Any fringe benefits that are already included as part of the agency’s base salary (part 1, section A of the sworn officer budget worksheet) should not also be included in the separate fringe listing (part 1, section B). [There will be a pop-up certification check box for the applicant to certify that duplicate fringe benefit payments will not be incurred.]
Please refer to the program-specific application guide for information about allowable and unallowable fringe benefits for sworn officer positions requested under the program to which your agency is applying.
Below is a sample of the worksheet for sworn officer positions.

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Section 14. Budget Detail Worksheets

Figure 1 shows a screenshot of this worksheet from the online application.

A. Base salary information

Year 1 salary Enter the current first year salary for one sworn officer position.

$

x

% of time on project =

$

Year 2 salary (as applicable) Enter the second year base salary for one sworn officer position.

$

x

% of time on project =

$

Year 3 salary (as applicable) Enter the third year base salary for one sworn officer position.

$

x

% of time on project =

$

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COPS Office Application Attachment to SF-424
B. Fringe benefit costs should be calculated for each year of the grant term.

Fringe Benefits

Social Security: Exempt 

6.2%  Fixed rate 

Cannot exceed 6.2% of total base

salary

Medicare:

Exempt 

1.45%  Fixed rate 

Cannot exceed 1.45% of total

base salary

Health insurance:

Individual  Family 

Fixed rate 

Life insurance: Fixed rate 

Vacation: Number of hours annually Sick leave: Number of hours annually

Retirement: Fixed rate 

Worker’s Compensation:

Exempt 

Fixed rate 

Unemployment insurance:

Exempt 

Fixed rate 

Other:

Select One …

Other:

Select One …

Other:

Select One …

Benefits subtotal per year (one

position)

C. Total salary + benefits per year

(one position)

D. Total salary and benefits

for years 1, 2, and 3

(one position)

Year 1 Fringe Benefits
Cost: $ % of base salary: 6.2
Cost: $ % of base salary: 1.45
Cost: $ % of base salary:
Cost: $ % of base salary: Cost: $ % of base salary: Cost: $ % of base salary: Cost: $ % of base salary: Cost: $ % of base salary: Cost: $ % of base salary: Cost: $ % of base salary: Cost: $ % of base salary: Cost: $ % of base salary:
$
$
$

Year 2 Fringe Benefits
Cost: $ % of base salary: 6.2
Cost: $ % of base salary: 1.45
Cost: $ % of base salary:
Cost: $ % of base salary: Cost: $ % of base salary: Cost: $ % of base salary: Cost: $ % of base salary: Cost: $ % of base salary: Cost: $ % of base salary: Cost: $ % of base salary: Cost: $ % of base salary: Cost: $ % of base salary:
$
$
$

Year 3 Fringe Benefits
Cost: $ % of base salary: 6.2
Cost: $ % of base salary: 1.45
Cost: $ % of base salary:
Cost: $ % of base salary: Cost: $ % of base salary: Cost: $ % of base salary: Cost: $ % of base salary: Cost: $ % of base salary: Cost: $ % of base salary: Cost: $ % of base salary: Cost: $ % of base salary: Cost: $ % of base salary:
$
$
$

Part 2. Sworn officer salary information

If your agency's second- and/or third-year costs for salaries and/or fringe benefits increase after the first year, check the reason(s) why in the space below:

 Cost of living adjustment (COLA)

 Step raises

 Change in benefit costs

 Not applicable

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Section 14. Budget Detail Worksheets Figure 1. Sworn officer base salary and fringe benefits calculations
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COPS Office Application Attachment to SF-424
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Section 14. Budget Detail Worksheets

Part 3. Federal/Local share costs (for hiring grants)
As part of the local matching requirement for the 2017 COPS Hiring Program, grantees must assume a progressively larger share of the cost of the grant with local funds over the three‐year grant period. This means that your local match must increase each year, while the federal share must decrease.

Total salary and benefits for year 1, Actual amount prepopulated from

2, & 3 (all positions):

the budget:

Total federal share:

Actual amount prepopulated from Percentage prepopulated from the

the budget:

budget:

Total local share required (sworn officer costs):

Actual amount prepopulated from Percentage prepopulated from the

the budget:

budget:

Please project in the chart below how your agency plans to assume a progressively larger share of the grant costs during each year of the program. The chart is only a projection of your plans; while your agency may deviate from these specific projections during the grant period, it must still ensure that the federal share decreases and the local share increases. For more details on local matching requirements for this program, please refer to the program‐ specific application guide.
Percent of the total local share required your agency plans to assume in year 1 Percent of the total local share required your agency plans to assume in year 2 Percent of the total local share required your agency plans to assume in year 3 Percent total Local share year 1 Local share year 2 Local share year 3 Local total Federal share year 1 Federal share year 2 Federal share year 3 Federal total

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COPS Office Application Attachment to SF-424

B. Base salary and fringe benefits for civilian/nonsworn personnel

No civilian/nonsworn officer positions requested



Part 1. Instructions

Please complete the questions below for one nonsworn position salary and benefits package. As applicable per the program-specific application guide, you may also be required to project year 2 and year 3 salaries.
Below is a sample of the worksheet for civilian/nonsworn personnel positions. Figure 2 shows a screenshot of this worksheet from the online application.
A. Base salary information

Position title: Description:

(One position per worksheet) Year 1 salary Enter the current first year salary for one civilian/nonsworn position.

$

x

% of time on project =

$

Year 2 salary (as applicable) Enter the second year base salary for one civilian/nonsworn position.

$

x

% of time on project =

$

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Section 14. Budget Detail Worksheets

B. Fringe benefit costs should be calculated for each year of the grant term.

Fringe Benefits

Social Security: Exempt 

6.2%  Fixed rate 

Cannot exceed 6.2% of total base salary

Medicare:

Exempt 

1.45%  Fixed rate 

Cannot exceed 1.45% of total base salary

Health insurance: Individual  Family  Fixed rate 

Life insurance:
Vacation: Number of hours annually Sick leave: Number of hours annually
Retirement:

Fixed rate  Fixed rate 

Worker’s Compensation: Exempt 

Fixed rate 

Unemployment insurance: Exempt 

Fixed rate 

Other: Select One …
Other: Select One …
Other: Select One …
Benefits subtotal per year (one position)
C. Total salary + benefits per year (one position)
D. Total salary and benefits for years 1 and 2 (one position)

Year 1 Fringe Benefits
Cost: $ % of base salary: 6.2
Cost: $ % of base salary: 1.45
Cost: $ % of base salary:
Cost: $ % of base salary:
Cost: $ % of base salary:
Cost: $ % of base salary:
Cost: $ % of base salary:
Cost: $ % of base salary:
Cost: $ % of base salary:
Cost: $ % of base salary:
Cost: $ % of base salary:
Cost: $ % of base salary:
$
$
$

Year 2 Fringe Benefits
Cost: $ % of base salary: 6.2
Cost: $ % of base salary: 1.45
Cost: $ % of base salary:
Cost: $ % of base salary:
Cost: $ % of base salary:
Cost: $ % of base salary:
Cost: $ % of base salary:
Cost: $ % of base salary:
Cost: $ % of base salary:
Cost: $ % of base salary:
Cost: $ % of base salary:
Cost: $ % of base salary:
$
$
$

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COPS Office Application Attachment to SF-424 Figure 2. Civilian/nonsworn personnel base salary and fringe benefits calculations
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Section 14. Budget Detail Worksheets

C. Equipment/Technology

No equipment/technology requested



Instructions. List nonexpendable items that are to be purchased. Provide a specific description for each item in the description boxes below and explain how the item supports the project goals and objectives as outlined in your application. Nonexpendable equipment is tangible property (e.g., information technology systems) having a useful life of more than one year and an acquisition cost of $5,000 or more per unit. Expendable items should be included either in the Supplies or Other categories. Applicants should analyze the cost benefits of purchasing versus leasing equipment, especially for high-price items and those subject to rapid technical advances. Rented or leased equipment costs should be listed in the Contracts/Consultants category.

Please be advised that, to the greatest extent practical, all equipment and products purchased with these funds must be American-made.

For agencies purchasing items related to enhanced communications systems, the COPS Office expects and encourages that, wherever feasible, such voice or data communications equipment should be incorporated into an intra- or interjurisdictional strategy for communications interoperability among federal, state, and local law enforcement agencies.

See www.cops.usdoj.gov/Default.asp?item=46 for a list of allowable/unallowable costs for this program. Please limit your descriptions to 1000 characters.

Below is a sample of the worksheet for equipment/technology costs. Figure 3 shows a screenshot of this worksheet from the online application.

Name

Cost

Qty

Base cost:

x

Figure 3. Screenshot of equipment/technology calculations

Total:

Sub Total Description

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COPS Office Application Attachment to SF-424

D. Supplies

No supplies requested



Instructions. List items by type (office supplies; postage; training materials; copying paper; books; hand-held tape recorders; computing devices costing less than $5,000; etc.) Provide a specific description for each item in the description boxes below and explain how it supports the project goals and objectives outlined in your application. Generally, supplies include any materials that are expendable or consumed during the course of the project, costing less than $5,000.

See www.cops.usdoj.gov/Default.asp?item=46 for a list of allowable/unallowable costs for this program. Please limit your descriptions to 1000 characters.

Below is a sample of the worksheet for supplies costs. Figure 4 shows a screenshot of this worksheet from the online application.

Name

Cost

Qty

Sub Total Description

Base cost:

x

Figure 4. Screenshot of supplies calculations

Total:

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Section 14. Budget Detail Worksheets

E. Travel/Training

No travel/training requested



Instructions. Travel costs are the expenses for transportation, lodging, subsistence, and related items incurred by employees who are in travel status on official business of the nonfederal entity. Itemize grant-related travel expenses of grantee personnel (excluding consultants, whose expenses are listed in section F) by event (e.g., mandatory training, staff to training, field interviews, advisory group meetings). Identify the location of travel whenever possible, and show the number of staff expected to attend each event. Training fees, transportation, lodging, and per diem rates for trainees should be listed as separate travel items. Grantee travel costs specific to the grant project may be based on the grantee’s written travel policy, assuming the costs are reasonable. Grantees without a written travel policy must follow the established federal rates (found at www.gsa.gov) for lodging, meals, and per diem. For all grantees (with or without a written travel policy), airfare travel costs must be one of the following: the lowest discount commercial airfare, standard coach airfare, or the Federal Government contract airfare (if authorized and available).

See www.cops.usdoj.gov/Default.asp?item=46 for a list of allowable/unallowable costs for this program. Please limit your descriptions to 1000 characters.

Below is a sample of the worksheet for travel/training costs. Figure 5 shows a screenshot of this worksheet from the online application.

Event Title and Location Name

Cost

Qty

Sub Total Description

Registration Lodging Per Diem Transportation
Figure 5. Screenshot of travel/training calculations

Total

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COPS Office Application

#:1848

Attachment to SF-424

F. Contracts/Consultants

Below are samples of the worksheet for contract and consultant costs. Figure 6 and Figure 7 show screenshots of these worksheets from the online application.

No contract costs requested



Instructions. See www.cops.usdoj.gov/Default.asp?item=46 for a list of allowable/unallowable costs for the particular program to which you are applying. Provide a specific description in the description boxes below for each item and explain how the item supports the project goals and objectives as outlined in your application. Please limit your descriptions to 1000 characters.

Contracts. Provide a cost estimate for the product or service to be procured by the contract. Applicants are encouraged to promote free and open competition in awarding contracts. If awarded, requests for sole source procurements of equipment, technology, or services in excess of $150,000 must be submitted to the COPS Office for prior approval. (See www.cops.usdoj.gov/Default.asp?item=46 for more information on the required submission.)

F1. Contract costs

Name

Cost

Qty

Sub Total

Description

Base cost:

x

Total:

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Section 14. Budget Detail Worksheets
Figure 6. Screenshot of contracts calculations

No consultant fees requested



Instructions. See www.cops.usdoj.gov/Default.asp?item=46 for a list of allowable/unallowable costs for the particular program to which you are applying. Provide a specific description in the description boxes below for each item and explain how the item supports the project goals and objectives as outlined in your application. Please limit your descriptions to 1000 characters.

Consultant fees. For each consultant, enter the name (if known), service to be provided, hourly or daily fee (based upon an 8-hour day), and estimated length of time on the project. Unless otherwise approved by the COPS Office, approved consultant rates will be based on the salary a consultant receives from his or her primary employer. Consultant fees in excess of $650 per day require additional written justification and must be preapproved in writing by the COPS Office if the consultant is hired via a noncompetitive bidding process.

F2. Consultant Fees

Name

Cost

Qty

Sub Total

Description

Base cost:

x

Total:

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COPS Office Application

#:1850

Attachment to SF-424

No consultant travel requested



Consultant travel. List all travel-related expenses to be paid from the grant to the individual consultants (e.g., transportation, meals, lodging) separate from their consultant fees.

F3. Consultant Travel Name

Cost

Qty

Sub Total Description

Registration

Lodging

Per Diem

Transportation

Total

No consultant expenses requested



Consultant expenses. List all other expenses to be paid from the grant to the individual consultants separate from their consultant fees and travel expenses (e.g., computer equipment and office supplies).

F4. Consultant Expenses

Name

Cost

Qty

Sub Total

Description

Base cost:

x

Total:

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Section 14. Budget Detail Worksheets Figure 7. Screenshot of consultant calculations
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COPS Office Application

#:1852

Attachment to SF-424

G. Other costs

No other costs requested



Instructions. List other requested items that will support the project goals and objectives as outlined in your application. Provide a specific description for each item in the description boxes below and explain how the item supports the project goals and objectives as outlined in your application.

Please be advised that, to the greatest extent practical, all equipment and products purchased with these funds must be American-made.

See www.cops.usdoj.gov/Default.asp?item=46 for a list of allowable/unallowable costs for this program. Please limit your descriptions to 1000 characters.

Below is a sample of the worksheet for other costs. Figure 8 shows a screenshot of this worksheet from the online application.

Name

Base cost:

Cost x

Figure 8. Screenshot of other costs calculations

Qty

Sub Total Description

Total:

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Section 14. Budget Detail Worksheets

H. Indirect costs

No indirect costs requested



Instructions. Indirect costs are allowed under a very limited number of specialized COPS Office programs. Please see www.cops.usdoj.gov/Default.asp?item=46 for a list of allowable/unallowable costs for the particular program to which you are applying.

If indirect costs are requested, a copy of the agency’s fully executed, negotiated federal rate approval agreement must be attached to this application.

If your organization is requesting indirect costs for this project, please include a copy of your current, signed federally approved indirect cost rate negotiated agreement. If the applicant does not have an approved rate, a rate can be requested by contacting the applicant’s cognizant federal agency, which will review all documentation and approve a rate for the applicant organization. Please limit your description to 1000 characters.

Below is a sample of the worksheet for indirect costs. Figure 9 shows a screenshot of this worksheet from the online application.

Indirect Cost Description

Name

Cost

Qty

Sub Total

Description

Base cost:

x

Figure 9. Screenshot of indirect cost calculations

Total:

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COPS Office Application

#:1854

Attachment to SF-424

S. Budget summary

Instructions: Please review the category totals and the total project costs below. If the category totals and project amounts shown are correct, please continue with the submission of your application. Should you need to make revisions to a budget category, please return to the budget detail worksheet.
Below is a sample of the budget summary worksheet.

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Section 14. Budget Detail Worksheets

Figure 10 shows a screenshot of that worksheet from the online application.

Budget Category A. Sworn officer positions B. Civilian/nonsworn personnel C. Equipment/Technology D. Supplies E. Travel/Training F. Contracts/Consultants G. Other costs H. Indirect costs Total project amount Total federal share amount (total project amount x federal share percentage allowable) Total local share amount (if applicable) (total project amount–total federal share amount):

Category Total $ $ $ $ $ $ $ $ $ $
$

Edit
% %

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COPS Office Application

#:1856

Attachment to SF-424

Figure 10. Budget summary worksheet

If your application is funded but for a reduced number of officer positions, the percentage of the local share provided above will be applied to the total project cost of the awarded officers.
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Section 14. Budget Detail Worksheets
Waiver of local match
The COPS Office may waive some or all of a grantee's local match requirement based on severe fiscal distress. During the application review process, your agency’s waiver request will be evaluated based on the availability of funding, a demonstration of severe fiscal distress as reflected through the fiscal health data in section 7 of this application, and a comparison of your fiscal health data with that of the overall CHP applicant pool. Q1: Are you requesting a waiver of the local match based upon severe fiscal distress? YES/NO If applicant answers “NO”, they would continue with the application; if “YES”, the following questions would appear: Q1a: If awarded, please indicate the maximum local share your agency would be able to contribute to the total project cost in order to implement the grant. Please enter a value in dollars only.
Based on the waiver request above, your federal share would be ___________ and your local share would be ____________ if your application is funded. We anticipate that waivers of the local match will be limited. The COPS Office will carefully review your request for a waiver when your application is submitted. Q1b: If your agency does not qualify for a waiver, do you still wish to be considered for a CHP grant? ___Yes, please continue to review my agency’s application even if we are not eligible for a waiver of the local match. ___No, my agency could not implement this grant without a waiver of the local match, so please do not continue processing our application if we are not eligible for the waiver.
Contact information for budget questions
Please provide contact information of the financial official that the COPS Office may contact with questions related to your budget submission.
Authorized Official’s Typed Name: Title: Phone: Fax: E-mail address:
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Section 15A. Assurances
Several provisions of federal law and policy apply to all award programs. The Office of Community Oriented Policing Services (“COPS Office”) needs to secure your assurance that the applicant will comply with these provisions. If you would like further information about any of these assurances, please contact your state’s COPS Office Grant Program Specialist at 800-421-6770.
By signing this form, the applicant assures that it will comply with all legal and administrative requirements that govern the applicant for acceptance and use of federal award funds. In particular, the applicant assures us of the following:
1. It has been legally and officially authorized by the appropriate governing body (for example, mayor or city council) to apply for this award and that the persons signing the application and these assurances on its behalf are authorized to do so and to act on its behalf with respect to any issues that may arise during processing of this application.
2. It will comply with the provisions of federal law, which limit certain political activities of employees whose principal employment is in connection with an activity financed in whole or in part with this award. These restrictions are set forth in 5 U.S.C. § 1501 et seq.
3. It will comply with the minimum wage and maximum hours provisions of the Fair Labor Standards Act (29 U.S.C. § 201 et seq.), if applicable.
4. It will establish safeguards, if it has not done so already, to prohibit employees from using their positions for a purpose that is, or gives the appearance of being motivated by a desire for private gain for themselves or others, particularly those with whom they have family, business or other ties. In addition, it will disclose (in writing) to the COPS Office any potential conflict of interest arising during the course of performance of the award and also will require such written disclosures by any subrecipients.
5. As required by 42 U.S.C. § 3796dd-6, it will give the U.S. Department of Justice or the Comptroller General access to and the right to examine records and documents related to the award.
6. It will comply with all requirements imposed by the U.S. Department of Justice as a condition or administrative requirement of the award, including but not limited to: the requirements of 2 C.F.R. Part 200 (Uniform Administrative Requirements, Cost Principles, and Audit Requirements for Federal Awards) as adopted by the U.S. Department of Justice in 2 C.F.R. § 2800.101 ; 48 C.F.R. Part 31 (FAR Part 31) (Contract Cost Principles and Procedures); the applicable provisions of the Omnibus Crime Control and Safe Streets Act of 1968, as amended; 28 C.F.R. Part 38 (Partnerships With Faith-Based and Other Neighborhood Organizations); the applicable COPS Office application guide; the applicable COPS Office award owner’s manual; and with all other applicable program requirements, laws, orders, or regulations.
7. As required by 42 U.S.C. § 3796dd-1(c) (11), it will, to the extent practicable and consistent with applicable law, seek, recruit and hire qualified members of racial and ethnic minority groups and qualified women in order to further effective law enforcement by increasing their ranks within the sworn positions in the agency.
8. It will not (and will require any subrecipient, contractors, successors, transferees, and assignees not to), on the grounds of race, color, religion, national origin, sex, or disability unlawfully exclude any person from participation in, deny the benefits of, or employment to any person, or subject any person to discrimination in connection with any programs or activities funded in whole or in part with federal funds.

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COPS Office Application

#:1860

Attachment to SF-424

It will also not discriminate in the delivery of benefits or services based on age. These civil rights requirements are found in the non-discrimination provisions of Title VI of the Civil Rights Act of 1964, as amended (42 U.S.C. § 2000d); the Omnibus Crime Control and Safe Streets Act of 1968, as amended (42 U.S.C. § 3789d); Section 504 of the Rehabilitation Act of 1973, as amended (29 U.S.C. § 794); the Age Discrimination Act of 1975, as amended (42 U.S.C. § 6101); Title IX of the Education Amendments of 1972, as amended (20 U.S.C. § 1681); and the corresponding U.S. Department of Justice regulations implementing those statutes at 28 C.F.R. Part 42 (subparts C, D, E, G, and I). It will also comply with Executive Order 13279, as amended by Executive Order 13559, and the implementing regulations at 28 C.F.R Part 38, Partnerships With Faith-Based and Other Neighborhood Organizations, which requires equal treatment of religious organizations in the funding process and prohibits religious discrimination against beneficiaries.
a. In the event that any court or administrative agency makes a finding of discrimination on grounds of race, color, religion, national origin, or sex against the applicant after a due process hearing, it agrees to forward a copy of the finding to the Office for Civil Rights, Office of Justice Programs, 810 7th Street NW, Washington, DC 20531.
b. If your organization is a government agency or private business and has received a single award for $25,000 or more and has fifty or more employees (counting both full- and part-time employees but excluding political appointees), then it has to prepare a Utilization Report and submit it to the Office for Civil Rights (OCR) within 120 days from the date of the award. Although the OCR has discretion to review all submitted Utilization Reports, it will review the Utilization Reports from recipients that receive an award of $500,000 or more.
9. To begin developing a Utilization Report, please consult the OCR's website at http://www.ojp.usdoj.gov/about/ocr/eeop.htm and click EEOP Reporting Tool Login. Additional assistance can be found online at the bottom of the same webpage by clicking the EEO Reporting Tool Job Aid and Frequently Asked Questions.
10. If your organization has less than fifty employees or receives an award of less than $25,000 or is a nonprofit organization, a medical institution, an educational institution, or an Indian tribe, then it is exempt from the EEOP requirement. To claim the exemption, however, your organization must certify that it is exempt by logging into the EEO Reporting Tool on the OCR website at http://www.ojp.usdoj.gov/about/ocr/eeop.htm, providing the contact and organizational profile information, and then submitting a Certificate of Exemption.
11. If you have further questions regarding the EEOP requirements, you may contact an EEOP specialist at the OCR by telephone at (202) 307-0690, by TTY at (202) 307-2027, or by e-mail at EEOPforms@usdoj.gov.
12. Pursuant to U.S. Department of Justice guidelines (June 18, 2002 Federal Register Volume 67, Number 117, pages 41455-41472), under Title VI of the Civil Rights Act of 1964, it will ensure meaningful access to its programs and activities by persons with limited English proficiency.
13. It will ensure that any facilities under its ownership, lease or supervision which shall be utilized in the accomplishment of the project are not listed on the Environmental Protection Agency’ (EPA) list of Violating Facilities and that it will notify us if advised by the EPA that a facility to be used in this grant is under consideration for such listing by the EPA.

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Section 15A. Assurances
14. If the applicant’s state has established a review and comment procedure under Executive Order 12372 and has selected this program for review, it has made this application available for review by the state Single Point of Contact.
15. It will submit all surveys, interview protocols, and other information collections to the COPS Office for submission to the Office of Management and Budget for clearance under the Paperwork Reduction Act of 1995 if required.
16. It will comply with the Human Subjects Research Risk Protections requirements of 28 C.F.R. Part 46 if any part of the funded project contains non-exempt research or statistical activities which involve human subjects and also with 28 C.F.R. Part 22, requiring the safeguarding of individually identifiable information collected from research participants.
17. Pursuant to Executive Order 13043, it will enforce on-the-job seat belt policies and programs for employees when operating agency-owned - or - rented or personally-owned vehicles.
18. As required by 42 U.S.C. § 3796dd-3(a), it will not use COPS Office funds to supplant (replace) state, local, or Bureau of Indian Affairs funds that otherwise would be made available for the purposes of this award, as applicable.
19. If the award contains a retention requirement, it will retain the increased officer staffing level or the increased officer redeployment level, as applicable, with state or local funds for a minimum of 12 months following expiration of the award period.
20. It will not use any federal funding directly or indirectly to influence in any manner a Member of Congress, a jurisdiction, or an official of any government, to favor, adopt, or oppose, by vote or otherwise, any legislation, law ratification, policy or appropriation whether before or after the introduction of any bill, measure, or resolution proposing such legislation, law, ratification, policy or appropriation as set forth in the Anti- Lobby Act, 18 U.S.C. § 1913.
21. In the event that a portion of award reimbursements are seized to pay off delinquent federal debts through the Treasury Offset Program or other debt collection process, it agrees to increase the nonfederal share (or, if the award does not contain a cost sharing requirement, contribute a nonfederal share) equal to the amount seized in order to fully implement the award project.
False statements or claims made in connection with COPS Office award may result in fines, imprisonment, debarment from participating in federal awards or contracts, and/or any other remedy available by law.
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COPS Office Application

#:1862

Attachment to SF-424

I certify that the assurances provided are true and accurate to the best of my knowledge.

Elections or other selections of new officials will not relieve the recipient of its obligations under this award.

Signature of Law Enforcement Executive/Agency Executive

Date

(For your electronic signature, please type in your name)

Signature of Government Executive/Financial Official

Date

(For your electronic signature, please type in your name)

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Section 15B. Certifications
Regarding Lobbying; Debarment, Suspension and Other Responsibility Matters; Federal Taxes and Assessments; Drug-Free Workplace Requirements; and Coordination with Affected Agencies.
Although the U.S. Department of Justice has made every effort to simplify the application process, other provisions of federal law require us to seek your agency’s certification regarding certain matters. Applicants should carefully review the statutes and regulations cited below and the instructions for certification to understand the requirements and whether they apply to a particular applicant. Signing this form complies with the certification and notice requirements under 28 C.F.R. Part 69 “New Restrictions on Lobbying”; 2 C.F.R. Part 2867 “Nonprocurement Debarment and Suspension”; 2 C.F.R. Part 200 “Uniform Administrative Requirements, Cost Principles, and Audit Requirements for Federal Awards”; the general provisions in the applicable Appropriations Act; 28 C.F.R. Part 83 “Government-Wide Requirements for Drug-Free Workplace (Grants)”; and the Public Safety Partnership and Community Policing Act of 1994. The certifications shall be treated as a material representation of fact upon which reliance will be placed when the U.S. Department of Justice determines to make the covered award.
1. Lobbying As required by 31 U.S.C. § 1352, implemented at 28 C.F.R. Part 69, for persons entering into a grant or cooperative agreement over $100,000, and 2 C.F.R. § 200.450 as adopted by the U.S. Department of Justice in 2 C.F.R. § 2800.101, the applicant certifies to the following:
a. No federal appropriated funds have been paid or will be paid, by or on behalf of the undersigned, to any person for influencing or attempting to influence an officer or employee of any agency, a member of Congress, an officer or employee of Congress, or an employee of a member of Congress in connection with the making of any federal grant; the entering into of any cooperative agreement; or the extension, continuation, renewal, amendment or modification of any federal grant or cooperative agreement.
b. If any funds other than federal appropriated funds have been paid or will be paid to any person for influencing or attempting to influence an officer or employee of any agency, a member of Congress, an officer or employee of Congress, or an employee of a member of Congress in connection with this federal grant or cooperative agreement, the undersigned shall complete and submit Standard Form LLL, “Disclosure of Lobbying Activities,” in accordance with its instructions.
c. If applicant is a nonprofit organization or an institution of higher education, it will comply with the additional lobbying restrictions set forth in 2 C.F.R. § 200.450(c) as adopted by the U.S. Department of Justice in 2 C.F.R. § 2800.101.
d. The undersigned shall require that the language of this certification be included in the award documents for all subawards at all tiers (including subgrants, contracts under grants and cooperative agreements, and subcontracts) and that all subrecipients shall certify and disclose accordingly.
2. Debarment, Suspension and Other Responsibility Matters (Direct Recipient) Pursuant to Executive Order 12549, Debarment and Suspension, as implemented at 2 C.F.R. Part 2867, for prospective participants in primary covered transactions, as defined at 2 C.F.R. § 2867.20(a), and other requirements, the applicant certifies that it and its principals:

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COPS Office Application

#:1864

Attachment to SF-424

a. Are not presently debarred, suspended, proposed for debarment, declared ineligible, sentenced to a denial of federal benefits by a state or federal court, or voluntarily excluded from covered transactions by any federal department or agency;
b. Have not within a three-year period preceding this application been convicted of a felony criminal violation under any federal law, or been convicted or had a civil judgment rendered against them for commission of fraud or a criminal offense in connection with obtaining, attempting to obtain, or performing a public (federal, state or local) or private agreement or transaction; violation of federal or state antitrust statutes or commission of embezzlement, theft, forgery, bribery, falsification or destruction of records, making false statements, tax evasion or receiving stolen property, making false claims, or obstruction of justice, or commission of any offense indicating a lack of business integrity or business honesty that seriously and directly affects your present responsibility;
c. Are not presently indicted for or otherwise criminally or civilly charged by a governmental entity (federal, state or local) with commission of any of the offenses enumerated in paragraph B. of this certification; and
d. Have not within a three-year period preceding this application had one or more public transactions (federal, state or local) terminated for cause or default.
3. Mandatory Disclosure Pursuant to the Uniform Administrative Requirements, Cost Principles, and Audit Requirements for Federal Awards, 2 C.F.R. § 200.113 as adopted by the U.S. Department of Justice in 2 C.F.R. § 2800.101, the applicant certifies that it:
a. Has not violated any federal criminal law involving fraud, bribery, or gratuity that may potentially affect the federal award;
b. Shall timely disclose in writing to the federal awarding agency or pass-through entity, as applicable, any violation of federal criminal law involving fraud, bribery, or gratuity that may potentially affect the federal award; and
c. Shall require that the language of this certification be included in the award documents for all subawards (including subgrants and cooperative agreements) and shall require all subrecipients certify and disclose accordingly.
4. Federal Taxes and Assessments
a. If applicable, an applicant who receives an award in excess of $5,000,000 certifies that, to the best of its knowledge and belief, the applicant has filed all federal tax returns required during the three years preceding the certification, has not been convicted of a criminal offense under the Internal Revenue Code of 1986, and has not, more than 90 days prior to certification, been notified of any unpaid federal tax assessment for which the liability remains unsatisfied, unless the assessment is the subject of an installment agreement or offer in compromise that has been approved by the Internal Revenue Service and is not in default, or the assessment is the subject of a non-frivolous administrative or judicial proceeding.
b. The applicant certifies that it does not have any unpaid federal tax liability that has been assessed, for which all judicial and administrative remedies have been exhausted or have lapsed, and that is not being paid in a timely manner pursuant to an agreement with the authority responsible for collecting the tax liability.

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Section 15B. Certifications
5. Drug-Free Workplace As required by the Drug-Free Workplace Act of 1988 (41 U.S.C. § 8103), implemented at 28 C.F.R. Part 83, for recipients other than individuals as defined at 28 C.F.R. § 83.660 –
a. The applicant certifies that it will, or will continue to, provide a drug- free workplace by doing the following:
i. Publishing a statement notifying employees that the unlawful manufacture, distribution, dispensing, possession or use of a controlled substance is prohibited in the grantee’s workplace and specifying the actions that will be taken against employees for violation of such prohibition;
ii. Establishing an on-going drug-free awareness program to inform employees about –
a. the dangers of drug abuse in the workplace;
b. the grantee’s policy of maintaining a drug-free workplace;
c. any available drug counseling, rehabilitation and employee assistance programs; and
d. the penalties that may be imposed upon employees for drug-abuse violations occurring in the workplace;
iii. Making it a requirement that each employee to be engaged in the performance of the grant be given a copy of the statement required by paragraph (i);
iv. Notifying the employee in the statement required by paragraph (i) that, as a condition of employment under the grant, the employee will –
a. abide by the terms of the statement; and
b. notify the employer in writing of his or her conviction for a violation of a criminal drug statute occurring in the workplace no later than five calendar days after such conviction;
v. Notifying the agency in writing within 10 calendar days after receiving notice under subparagraph (iv)(b) from an employee or otherwise receiving actual notice of such conviction. Employers of convicted employees must provide notice, including position title, to: COPS Office, 145 N Street, NE, Washington, D.C. 20530. Notice shall include the identification number(s) of each affected grant;
vi. Taking one of the following actions within 30 calendar days of receiving notice under subparagraph (iv)(b) with respect to any employee who is so convicted –
a. (a) Taking appropriate personnel action against such an employee, up to and including termination, consistent with the requirements of the Rehabilitation Act of 1973, as amended; or
b. (b) Requiring such employee to participate satisfactorily in a drug abuse assistance or rehabilitation program approved for such purposes by a federal, state or local health, law enforcement or other appropriate agency;
vii. Making a good faith effort to continue to maintain a drug-free workplace through implementation of paragraphs (i), (ii), (iii), (iv), (v), and (vi).
b. The applicant further certifies that it will identify all known workplaces under each COPS Office award, keep the identification documents on file, and make them available for inspection upon request by the U.S. Department of Justice officials or their designated representatives.
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COPS Office Application

#:1866

Attachment to SF-424

6. Coordination As required by 42 U.S.C. § 3796dd-1(c)(5) of the Public Safety Partnership and Community Policing Act of 1994, applicants must certify that there has been appropriate coordination with all agencies that may be affected by the applicant’s grant proposal if approved. Affected agencies may include, among others, the Office of the United States Attorney, state or local prosecutors, or correctional agencies. The applicant certifies that there has been appropriate coordination with all affected agencies.

 Where the applicant is unable to certify to any of the statements in this Certifications form, he or she shall attach an explanation to this application regarding the particular statement that cannot be certified. Please check the box if an explanation is attached to this application. Please note that the applicant is still required to sign the Certifications form to certify to all the other applicable statements.

False statements or claims made in connection with COPS Office awards may result in fines, imprisonment, debarment from participating in federal awards or contracts, and/or any other remedy available by law.

I certify that the assurances provided are true and accurate to the best of my knowledge.

Elections or other selections of new officials will not relieve the recipient entity of its obligations under this award.

Signature of Law Enforcement Executive/Agency Executive

Date

(For your electronic signature, please type in your name)

Signature of Government Executive/Financial Official

Date

(For your electronic signature, please type in your name)

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Section 16A. Disclosure of Lobbying Activities
INSTRUCTIONS FOR COMPLETION OF SF-LLL, DISCLOSURE OF LOBBYING ACTIVITIES
This disclosure form shall be completed by the reporting entity, whether subawardee or prime Federal recipient, at the initiation or receipt of a covered Federal action, or a material change to a previous filing, pursuant to title 31 U.S.C. section 1352. The filing of a form is required for each payment or agreement to make payment to any lobbying entity for influencing or attempting to influence an officer or employee of any agency, a Member of Congress, an officer or employee of Congress, or an employee of a Member of Congress in connection with a covered Federal action. Complete all items that apply for both the initial filing and material change report. Refer to the implementing guidance published by the Office of Management and Budget for additional information.
1. Identify the type of covered Federal action for which lobbying activity is and/or has been secured to influence the outcome of a covered Federal action.
2. Identify the status of the covered Federal action.
3. Identify the appropriate classification of this report. If this is a followup report caused by a material change to the information previously reported, enter the year and quarter in which the change occurred. Enter the date of the last previously submitted report by this reporting entity for this covered Federal action.
4. Enter the full name, address, city, State and zip code of the reporting entity. Include Congressional District, if known. Check the appropriate classification of the reporting entity that designates if it is, or expects to be, a prime or subaward recipient. Identify the tier of the subawardee, e.g., the first subawardee of the prime is the 1st tier. Subawards include but are not limited to subcontracts, subgrants and contract awards under grants.
5. If the organization filing the report in item 4 checks "Subawardee," then enter the full name, address, city, State and zip code of the prime Federal recipient. Include Congressional District, if known.
6. Enter the name of the Federal agency making the award or loan commitment. Include at least one organizational level below agency name, if known. For example, Department of Transportation, United States Coast Guard.

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COPS Office Application

#:1868

Attachment to SF-424

7. Enter the Federal program name or description for the covered Federal action (item 1). If known, enter the full Catalog of Federal Domestic Assistance (CFDA) number for grants, cooperative agreements, loans, and loan commitments.
8. Enter the most appropriate Federal identifying number available for the Federal action identified in item 1 (e.g., Request for Proposal (RFP) number; Invitation for Bid (IFB) number; grant announcement number; the contract, grant, or loan award number; the application/proposal control number assigned by the Federal agency). Include prefixes, e.g., "RFP-DE-90-001."
9. For a covered Federal action where there has been an award or loan commitment by the Federal agency, enter the Federal amount of the award/loan commitment for the prime entity identified in item 4 or 5.
10. (a) Enter the full name, address, city, State and zip code of the lobbying registrant under the Lobbying Disclosure Act of 1995 engaged by the reporting entity identified in item 4 to influence the covered Federal action.
(b) Enter the full names of the individual(s) performing services, and include full address if different from 10 (a). Enter Last Name, First Name, and Middle Initial (MI).
11. The certifying official shall sign and date the form, print his/her name, title, and telephone number.

According to the Paperwork Reduction Act, as amended, no persons are required to respond to a collection of information unless it displays a valid OMB Control Number. The valid OMB control number for this information collection is OMB No. 0348-0046. Public reporting burden for this collection of information is estimated to average 10 minutes per response, including time for reviewing instructions, searching existing data sources, gathering and maintaining the data needed, and completing and reviewing the collection of information. Send comments regarding the burden estimate or any other aspect of this collection of information, including suggestions for reducing this burden, to the Office of Management and Budget, Paperwork Reduction Project (0348-0046), Washington, DC 20503.

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Section 16. Disclosure of Lobbying Activities

Below is a sample of the lobbying disclosure form. Figure 11 is a screenshot of the actual form including OMB approval.

Complete this form to disclose lobbying activities pursuant to 31 U.S.C. 1352. (See reverse for public burden disclosure.)

1. Type of Federal Action:

2. Status of Federal Action:

3. Report Type:



a. contract



a. bid/offer/application



a. initial filing

b. grant

b. initial award

b. material change

c. cooperative agreement

c. post-award

For Material Change only:

d. loan

year _____ quarter _____

e. loan guarantee

date of last report ______

f. loan insurance

4. Name and Address of Reporting Entity:

5. If Reporting Entity in no. 4 is a Subawardee, enter

 Prime

 Subawardee

name and address of Prime:

Tier ____, if known:

Congressional District, if known:____ 6. Federal Department/Agency:

Congressional District, if known: ____ 7. Federal Program Name/Description:

8. Federal Action Number, if known:
10. a. Name and Address of Lobbying Registrant (if individual: last name, first name, MI)

CFDA number, if applicable: _______ 9. Award amount, if known: $ ______________ b. Individuals Performing Services (including address if different from no. 10.a.) (last name, first name, MI)

11. Information requested through this form is authorized by title 31 U.S.C. section 1352. This disclosure of lobbying activities is a material representation of fact upon which reliance was placed by the tier above when this transaction was made or entered into. This disclosure is required pursuant to 31 U.S.C. 1352. This information will be available for public inspection. Any person who fails to file the required disclosure shall be subject to a civil penalty of not less than $10,000 and not more than $100,000 for each such failure.
Figure 11. Lobbying disclosure form

Signature:_______________________________ Print name:______________________________ Title:___________________________________ Telephone No.:_______________ Date: _______

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COPS Office Application

#:1870

Attachment to SF-424

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Section 16B. Certification of Compliance with 8 U.S.C. § 1373
On behalf of the applicant entity named below, I certify under penalty of perjury to the Office of Community Oriented Policing Services, U.S. Department of Justice, that all of the following is true and correct:
1. I am chief legal officer for the applicant entity named below and have the authority to make this certification on behalf of the applicant entity (that is, the entity applying directly to the Office of Community Oriented Policing Services). For purposes of this certification, the applicant entity’s “chief legal officer” is that of the applicant’s State or local governing body (e.g., State, City, or County) or of the non-State or local government entity that is applying for funds and will make subawards to a State or local government entity.
2. I have carefully reviewed 8 U.S.C. § 1373(a) and (b), including the prohibitions on certain actions by State and local government entities and officials regarding information on citizenship and immigration status. I have reviewed the provisions set out at 8 U.S.C. § 1551 note, pursuant to which references to the Immigration and Naturalization Service in 8 U.S.C. § 1373 are to be read, as a legal matter, as references to particular components of the U.S. Department of Homeland Security.
3. I understand that the U.S. Department of Justice will require States and units of local government to comply with 8 U.S.C. § 1373 with respect to any “program or activity” funded in whole or in part with the federal financial assistance provided under the FY 2017 Office of Community Oriented Policing Services programs, including any such program or activity of a governmental entity that is a subrecipient (at any tier) of funds under an FY 2017 program.
4. I understand that, for purposes of this certification, “program or activity” means what it means under section 606 of title VI of the Civil Rights Act of 1964 (42 U.S.C. § 2000d-4a).
5. I have conducted (or caused to be conducted on my behalf) a diligent inquiry and review concerning both—
a. the “program or activity” to be funded (in whole or in part) with the federal financial assistance sought by the applicant entity under the FY 2017 program, and
b. any prohibitions or restrictions potentially applicable to the program or activity funded under the FY 2017 program that deal with sending to, requesting or receiving from, maintaining, or exchanging information of the types described in 8 U.S.C. § 1373(a) or (b), whether imposed by a State or local government entity or official.
6. As of the date of this certification, no State or local government entity or official has in effect (or purports to have in effect) any prohibition or restriction that is applicable to the program or activity to be funded in whole or in part under the FY 2017 program and that deals with sending to, requesting or receiving from, maintaining, or exchanging information of the types described in 8 U.S.C. § 1373(a) or (b).

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COPS Office Application

#:1872

Attachment to SF-424

I acknowledge that a false statement in this certification, or in the application that it supports, may be the subject of criminal prosecution (including under 18 U.S.C. §§ 1001 and/or 1621, and/or 42 U.S.C. § 3795), of administrative action, and/or of civil action in court. I also acknowledge that Office of Community Oriented Policing Services awards, including certifications provided in connection with such awards, are subject to review by the Office of Community Oriented Policing Services and/or by the Department of Justice’s Office of the Inspector General.

Signature of Chief Legal Officer Date of Certification Name of Applicant Entity

Printed Name of Chief Legal Officer Title of Chief Legal Officer Name of Subrecipient Entity

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Section 17. Reviews and Certifications
1. Federal Civil Rights and Grant Reviews:
Please be advised that an application may not be funded and, if awarded, a hold may be placed on the award if it is deemed that the applicant is not in compliance with federal civil rights laws, and/or is not cooperating with an ongoing federal civil rights investigation, and/or is not cooperating with a Department of Justice grant review or audit.
2. Certification of Review of 28 C.F.R. Part 23/Criminal Intelligence Systems:
Please review the COPS Office Application Guide: Legal Requirements Section for additional information.
Please check one of the following, as applicable to your agency’s intended use of this grant:
 No, my agency will not use these COPS Office grant funds (if awarded) to operate an interjurisdictional criminal intelligence system.
 Yes, my agency will use these COPS Office grant funds (if awarded) to operate an interjurisdictional criminal intelligence system. By signing below, we assure that our agency will comply with the requirements of 28 C.F.R. Part 23.
3. Certification of Review and Representation of Compliance with Requirements:
The signatures of the Law Enforcement Executive/Agency Executive, Government Executive/Financial Official, and the Person Submitting this Application on the Reviews and Certifications represent to the COPS Office that:
a. the signatories have been legally and officially authorized by the appropriate governing body to submit this application and act on behalf of the grant applicant entity;
b. the applicant will comply with all legal, administrative, and programmatic requirements that govern the applicant for acceptance and use of federal funds as outlined in the applicable COPS Office Application Guide, the COPS Office Grant Owner’s Manual, Assurances, Certifications, and all other applicable program regulations, laws, orders, and circulars;
c. the applicant understands that false statements or claims made in connection with COPS Office programs may result in fines, imprisonment, debarment from participating in federal grants, cooperative agreements, or contracts, and/or any other remedy available by law to the federal government; AND
d. the information provided in this application, including any amendments, shall be treated as material representations of fact upon which reliance will be placed when the Department of Justice determines to award the covered grant.
e. the applicant understands that as a general rule COPS Office funding may not be used for the same item or service funded through another funding source.
f. the applicant and any required or identified official partner(s) listed in Section 12 are partners in this grant project and mutually agreed to this partnership prior to this grant application.

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COPS Office Application

#:1874

Attachment to SF-424

The signatures of the Law Enforcement Executive/Agency Executive and the Government Executive/Financial Official on this application must be the same as those identified in Section 4 of this application. Applications with missing, incomplete, or inaccurate signatories or responses may not be considered for funding.

Signature of Law Enforcement Executive/Agency Executive

Date

(For your electronic signature, please type in your name)

Signature of Government Executive/Financial Official

Date

(For your electronic signature, please type in your name)

Signature of Person Submitting This Application

Date

(For your electronic signature, please type in your name)

ELECTRONIC SIGNATURE: By clicking this box  , the applicant understands that the use of typed names in this grant application and the required grant forms, including the Assurances and Certifications, constitute electronic signatures and that the electronic signatures are the legal equivalent of handwritten signatures.

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Section 18. Application Data Verification
By signing below, I certify that I have read, understand and agree to the following:
1. my agency has been requested by the COPS Office to review, confirm and/or update specific data items that were previously submitted in our COPS Office application and our failure to respond to the request may eliminate our application from 2017 funding consideration;
2. my agency has reviewed, confirmed and/or updated the specific data items identified by the COPS Office, and certify that the information is true and accurate;
3. I am authorized by the appropriate governing body to act on behalf of the grant applicant entity to make changes to our COPS Office application which will be considered for 2017 funding;
4. the information provided in this application, including any amendments, shall be treated as material representations of fact upon which reliance will be placed when the Department of Justice determines to award the covered grant; and
5. the applicant understands that false statements or claims made in connection with COPS Office programs may result in fines, imprisonment, debarment from participating in federal grants, cooperative agreements, or contracts, and/or any other remedy available by law to the federal government.

Signature of the Person Completing this Form (For your electronic signature, please type in your name)

Date Completed

ELECTRONIC SIGNATURE: By clicking this box  , I understand that typing in my name on this form constitutes an electronic signature and that the electronic signature is the legal equivalent of a handwritten signature.

The COPS Office may request verification of your application data or any other updates to your application. In order for your agency to continue to be considered for COPS Office grant funding, all such application updates must be submitted through the COPS Office website (www.cops.usdoj.gov) by the deadline identified in the request for updates you receive from the COPS Office. For technical assistance with submitting your updates or to withdraw your agency's application from funding consideration, please call the COPS Office Response Center at 800-421-6770.

Published 2017

Case 2:17-cv-07215-R-JC Document 54-1 Filed 01/12/18 Page 129 of 208 Page ID #:1876

September 7, 2017

Dear COPS Office FY 2017 Grant Applicant:
Thank you for your agency’s application for COPS Office funding this fiscal year. The COPS Office is currently reviewing all applications and looks forward to making award decisions in the near future.
As the FY 2017 COPS Office application materials stated, the COPS Office may give additional consideration to state, local, or tribal applicants that cooperate with federal law enforcement to address illegal immigration. Your agency may receive this additional consideration by completing the enclosed Certification and returning it to the COPS Office by 5 p.m. EST on Tuesday, September 19, 2017.
For agencies that are currently preparing for or conducting hurricane recovery efforts: your deadline for submitting the Certification will be by 5 p.m. EST on Friday, September 29, 2017. We recognize that your agencies are facing significant challenges at this time and hope that this extended deadline may assist in offering you this Certification opportunity without compromising your emergency efforts.
Both the Government Executive (highest ranking official within your jurisdiction – e.g., mayor, city administrator, county executive, or equivalent) and Law Enforcement Executive (highest ranking law enforcement official within your jurisdiction – e.g., chief of police, sheriff, or equivalent) must sign the enclosed Certification and submit it by the deadline to receive this additional consideration. If your agency chooses to complete the Certification, please print the blank Certification, fill out and sign the form, scan the completed Certification and send the file to the COPS Office via email at copsofficecertifications@usdoj.gov.
Please note that by offering this opportunity for additional consideration, we anticipate making award announcements for most COPS Office programs after September 30, 2017. We remain committed to finishing application reviews and announcing this year’s award recipients as quickly as possible.
If you have any questions regarding the enclosed Certification, please contact the COPS Office Response Center at (800) 421-6770.

Sincerely,

Enclosure

Russell Washington Acting Director

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COPS Office: Immigration Cooperation Certification Process Background • The Department of Justice encourages cooperation between local jurisdictions and federal
immigration authorities.
• The Office of Community Oriented Policing Services (COPS Office) notified its FY2017 state, local, and tribal law enforcement grant applicants that they might receive priority consideration in funding decisions if they cooperate with federal law enforcement.
• In order to receive priority consideration, applicants must certify the following: o If the applicant operates a detention facility, the applicant must provide Department of Homeland Security (DHS) access to their detention facility; o And, the applicant must provide advance notice as early as practicable (at least 48 hours, where possible) to DHS of an illegal alien’s release date and time.
• Applicants that submit the certification will receive additional points in the application scoring process in recognition of their efforts to increase information sharing with federal immigration authorities.
• Background on FY2012-FY2016 grants can be found here.

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COPS Office: Immigration Cooperation Certification Q&A
Are COPS grant applicants required to submit the Certification to receive grant funding? No. Submitting the Certification is voluntary. Applicants that do submit the Certification will receive additional points in the application scoring process.
What does the Certification commit applicants to do? The Certification relates to state, local, and tribal law enforcement cooperation with the U.S. Department of Homeland Security (DHS) by providing access to their correctional or detention facilities for the purpose of meeting with individuals believed or known to be aliens and to inquire about their right to be or remain in the United States.
The Certification also relates to providing advance notice as early as practicable (at least 48 hours, where possible) to DHS regarding the scheduled release date and time of an alien so that DHS may take custody of the alien.
Does the Certification commit applicants to hold (“detain”) an alien beyond the scheduled time of release? No, it specifically states that this is not a requirement of the Certification.
How many additional points will an applicant receive by submitting the Certification? As a matter of standard practice, the COPS Office does not release the exact number of points assigned to every application question.
What happens if jurisdictions do not operate their own detention facilities? Applicants will not be penalized if they do not operate detention facilities in their jurisdictions. This approach to priority consideration is consistent with other criteria where applicants are rewarded (Safe Harbor state applicants, for example).
Why is the COPS Office adding this opportunity so late in the grant application process? Haven’t these application periods already closed? The applications for these programs all noted that they might receive additional consideration for cooperation with federal law enforcement to address illegal immigration.
Will this process delay making COPS grant awards this year? The COPS Office plans to make its grant awards as soon as possible, ideally no later than October 31.
Will applicants who are currently affected by Hurricane Harvey or possibly soon to be affected by Hurricane Irma have additional time to complete the Certification? Yes – any applicant that is either currently preparing for Hurricane Irma or recovering from Hurricane Harvey will receive an additional period of time to complete and submit the Certification.

Case 2:17-cv-07215-R-JC Document 54-1 Filed 01/12/18 Page 132 of 208 Page ID #:1879

Certification of Illegal Immigration Cooperation
On behalf of the applicant entity named below, I certify under penalty of perjury to the Office of Community Oriented Policing Services, U.S. Department of Justice, that all of the following is true and correct:
(1) As the Law Enforcement Executive or Government Executive for the applicant entity named below, I have the authority to make this certification on behalf of the applicant entity (that is, the entity applying directly to the Office of Community Oriented Policing Services) and its governing body (i.e., city, county, or state).
(2) The applicant entity and/or its governing body has implemented or, before drawing down grant funds if awarded, will implement rules, regulations, policies, and/or practices that ensure that U.S. Department of Homeland Security (“DHS”) personnel have access to any of the governing body’s correctional or detention facilities in order to meet with an alien (or an individual believed to be an alien) and inquire as to his or her right to be or to remain in the United States.
(3) The applicant entity and/or its governing body has implemented or, before drawing down grant funds if awarded, will implement rules, regulations, policies, and/or practices that ensure that any of the governing body’s correctional and detention facilities provide advance notice as early as practicable (at least 48 hours, where possible) to DHS regarding the scheduled release date and time of an alien in the jurisdiction’s custody when DHS requests such notice in order to take custody of the alien. This certification does not require holding an alien beyond his or her scheduled time of release.

I acknowledge that a false statement in this certification, or in the application that it supports, may be the subject of criminal prosecution (including under 18 U.S.C. §§ 1001 and/or 1621, and/or 42 U.S.C. § 3795), of administrative action, and/or of civil action in court. I also acknowledge that Office of Community Oriented Policing Services awards, including certifications provided in connection with such awards, are subject to review by the Office of Community Oriented Policing Services and/or by the Department of Justice’s Office of the Inspector General.

___________________________________________________________________________________ Name of Applicant Entity

_____________________________________ Signature of Law Enforcement Executive

______________________________________ Signature of Government Executive

_____________________________________

______________________________________

Printed Title and Name of Law Enforcement Executive Printed Title and Name of Government

Executive

_____________________________________ Date Signed

______________________________________ Date Signed

Case 2:17-cv-07215-R-JC Document 54-1 Filed 01/12/18 Page 133 of 208 Page ID #:1880

Rank State

1

FL

2

MO

3

IL

4

AL

5

CA

6

OH

7

MN

8

CA

9

FL

10

GA

11

MO

12

MI

13

IN

14

TX

15

KS

16

TX

Identifier
217 548 337
7 100 798 503
68 185

Focus Area Building Trust and
Respect Homicide Gun Violence Homicide Gun Violence Gun Violence Gun Violence Other Violent Crime Problem (please specify) Gun Violence

Large/Small
Large Large Large Large Large Large Large
Large Large

Protecting Critical

266

Infrastructure Problems Large

549

Gun Violence

Large

491

Human Trafficking

Large

339

Homicide

Large

958

Robbery

Large

373

Gun Violence

Large

957

Robbery

Large

Award Amount
$1,875,000 $1,875,000 $3,125,000 $1,562,711 $1,875,000 $1,875,000 $1,250,000
$1,000,000 $3,125,000
$1,875,000 $1,875,000 $1,848,067 $1,250,000 $375,000 $1,250,000 $750,000

Notes

17

FL

18

MI

19

TX

20

CA

21

DE

22

OH

23

IN

24

LA

25

SD

26

KY

27

WI

28

CA

29

FL

30

FL

31

TX

32

MD

188
476 984 104
164 770 362 409 914
381 1107
94
231
219
998
454

Information or Intelligence Problems
Building Trust and Respect
Gun Violence Gun Violence
Gun Violence Gun Violence
Homicide Gun Violence
Assault Building Trust and
Respect Gun Violence
Robbery Other Violent Crime
Problem (please specify)
Drug Manufacturing, Drug Dealing, Drug
Trafficking
Assault
Building Trust and Respect

Large
Large Large Large
Large Large Large Large Large
Large Large Large
Large
Large
Large
Large

$1,875,000
$1,500,000 $1,875,000 $1,500,000
$0 $1,875,000 $1,875,000 $1,875,000 $375,000
$1,250,000 $1,875,000 $250,000

Ineligible/Withdraw

$3,125,000

$1,875,000 $250,000
$500,000

Last Large Agency Funded
Funded to Meet State Minimum
Requirement

Case 2:17-cv-07215-R-JC Document 54-1 Filed 01/12/18 Page 134 of 208 Page ID #:1881

33

NC

595

Misdemeanor Crimes

Large

34

MA

427

Gun Violence

Large

35

LA

403

Assault

Large

Los Angeles, Building Trust and

36

CA

City of

Respect

Large

Building Trust and

37

WI

1071

Respect

Large

38

TX

999

Gun Violence

Large

39

TX Laredo, City of Illegal Immigration

Large

40

NJ

41

MI

42

VA

43

VA

44

OH

45

CA

46

SC

47

OH

650 472 1031 1029 799
127
889 784

Protecting Critical Infrastructure Problems
Gun Violence Building Trust and
Respect Building Trust and
Respect Building Trust and
Respect Other Violent Crime
Problem (please specify)
Other Violent Crime Problem (please specify) Gun Violence

Large Large Large Large Large
Large
Large Large

48

CA

106

Quality of Life Problem Large

49

GM

267

50

TX

968

51

TN

929

Building Trust and Respect
Youth Crime and Delinquency Burglary

Large
Large Large

52

KS

367

Quality of Life Problem Large

53

VA

54

WA

55

FL

56

CA

57

WA

1008 1055 177 103 1049

Quality of Life Problem Other Violent Crime Problem (please specify) Other Violent Crime Problem (please specify) Other Non-Violent
Crime Problem (please specify)
Larceny/Theft (NonMotor Vehicle)

Large Large Large Large Large

$0 $0 $0
$0
$0 $0
$0

$0 $0 $0 $0 $0

$0

$0 $0 $0
$567,720 $0 $0 $0 $0

Funded to Meet State Minimum
Requirement

$0

$0

$0 $0

Case 2:17-cv-07215-R-JC Document 54-1 Filed 01/12/18 Page 135 of 208 Page ID #:1882

58

AZ

66

Quality of Life Problem Large

$0

Protecting Critical

59

PR

876

Infrastructure Problems Large

$0

Drug Manufacturing,

Drug Dealing, Drug

60

CA

118

Trafficking

Large

$0

Protecting Critical

61

TX

988

Infrastructure Problems Large

$0

62

FL

224

School based Policing

Large

$0

Building Trust and

63

PR

881

Respect

Large

$0

64

CA

80

School based Policing

Large

$0

65

NY

735

Criminal Gangs

Large

$0

Building Trust and

66

FL

182

Respect

Large

$0

Building Trust and

67

CA

98

Respect

Large

$0

68

OH

769

School based Policing

Large

$0

69

CA

99

Quality of Life Problem Large

$0

70

FL

183

Burglary

Large

$0

Information or

71

MD

442

Intelligence Problems

Large

$0

Protecting Critical

72

NY

730

Infrastructure Problems Large

$0

73

LA

408

Gun Violence

Large

$0

Child Sexual Predators

74

VA

1010

and Internet Safety

Large

$0

Drug Abuse Education,

Prevention, and

75

OH

789

Intervention

Large

$0

Building Trust and

76

RI

883

Respect

Large

$0

Drug Manufacturing,

Drug Dealing, Drug

77

CO

144

Trafficking

Large

$0

Other Homeland

Security Problem

78

DE

163

(please specify)

Large

$0

79

CA

97

School based Policing

Large

$0

Case 2:17-cv-07215-R-JC Document 54-1 Filed 01/12/18 Page 136 of 208 Page ID #:1883

80

CA

81

NY

82

FL

83

OH

84

VA

85

TN

86

GA

87

WI

88

CA

89

FL

90

PA

69
709 200 797 1015 931
248
1103 124 187
865

Protecting Critical Infrastructure Problems
Drug Abuse Education, Prevention, and Intervention Building Trust and Respect Building Trust and Respect
School based Policing Children Exposed to
Violence
Drug Abuse Education, Prevention, and Intervention
Protecting Critical Infrastructure Problems
Building Trust and Respect Burglary
Drug Manufacturing, Drug Dealing, Drug
Trafficking

Large
Large Large Large Large Large
Large
Large Large Large
Large

$0

$0 $0 $0 $0 $0

$0

$0
$0 $0

$0

Ineligible/Withdraw

Case 2:17-cv-07215-R-JC Document 54-1 Filed 01/12/18 Page 137 of 208 Page ID #:1884

Rank
1 2

State Identifier

Focus Area

Large/Small Award Amount

Drug Manufacturing, Drug

OH

759

Dealing, Drug Trafficking

Small

FL

228

Robbery

Small

$375,000 $875,000

Notes

Other Violent Crime

3

MI

492

Problem (please specify)

Small

Other Violent Crime

4

SC

898

Problem (please specify)

Small

5

NC

598

Gun Violence

Small

6

CT

159

Gun Violence

Small

7

PA

854

Gun Violence

Small

$295,462
$1,500,000 $121,881 $1,875,000 $125,000

Drug Manufacturing, Drug

8

WI

1081

Dealing, Drug Trafficking

Small

9

OH

756

Criminal Gangs

Small

10

LA

401

Gun Violence

Small

11

FL

201

Gun Violence

Small

$500,000 $425,164 $1,249,999 $625,000

Other Violent Crime

12

GA

252

Problem (please specify)

Small

Drug Manufacturing, Drug

13

TN

921

Dealing, Drug Trafficking

Small

14

OH

749

Gun Violence

Small

15

MI

473

Gun Violence

Small

$375,000
$746,117 $750,000 $1,375,000

Drug Manufacturing, Drug

16

AL

15

Dealing, Drug Trafficking

Small

17

IL

336

Gun Violence

Small

$500,000 $625,000

18

MI

463 Building Trust and Respect Small

19

OH

742

Gun Violence

Small

20

CA

89

Domestic/Family Violence

Small

21

CT

154

Gun Violence

Small

22

TX

945

Driver Safety

Small

23

FL

205

Gun Violence

Small

$125,000 $375,000
$250,000 $1,875,000 $122,972 $375,000

24

OH

795 Building Trust and Respect Small

Information or Intelligence

25

CA

90

Problems

Small

$124,936 $125,000

Drug Manufacturing, Drug

26

FL

171

Dealing, Drug Trafficking

Small

27

WA

1043

Gun Violence

Small

28

NJ

678

Assault

Small

29

CA

91

Homicide

Small

30

FL

198

Gun Violence

Small

$205,280 $625,000 $1,000,000 $242,165 $771,724

Case 2:17-cv-07215-R-JC Document 54-1 Filed 01/12/18 Page 138 of 208 Page ID #:1885

31

VA

1025

32

FL

190

33

AL

6

34

NJ

666

35

LA

399

Gun Violence Gun Violence
Assault Assault Gun Violence

Small Small Small Small Small

$1,250,000 $375,000 $114,947 $625,000 $500,000

36

MA

416

Domestic/Family Violence

Small

37

GA

257

Assault

Small

$750,000 $750,000

Drug Manufacturing, Drug

38

TN

923

Dealing, Drug Trafficking

Small

39

MI

494

Robbery

Small

$625,000 $500,000

Drug Manufacturing, Drug

40

SC

903

Dealing, Drug Trafficking

Small

$244,410

Other Violent Crime

41

NY

705

Problem (please specify)

Small

42

NJ

679

Gun Violence

Small

43

NB

583

Assault

Small

$250,000 $2,829,072 $500,000

44

CA

79

Building Trust and Respect Small

45

NJ

662

Gun Violence

Small

46

NC

593

School based Policing

Small

47

MI

467

Gun Violence

Small

48

MS

553

Criminal Gangs

Small

49

TX

981

Robbery

Small

50

AK

2

Assault

Small

$225,000 $625,000 $375,000 $1,217,595 $263,965 $500,000 $125,000

51

AR

45

Building Trust and Respect Small

52

NY

729

School based Policing

Small

$366,232 $250,000

53

LA

406 Building Trust and Respect Small

Drug Abuse Education,

Prevention, and

54

OK

814

Intervention

Small

Protecting Critical

55

IL

299

Infrastructure Problems

Small

Youth Crime and

56

GA

250

Delinquency

Small

$250,000
$69,208 $125,000 $625,000

Drug Manufacturing, Drug

57

NY

733

Dealing, Drug Trafficking

Small

58

CA

114

Quality of Life Problem

Small

59

TN

939

Criminal Gangs

Small

Drug Manufacturing, Drug

60

OH

744

Dealing, Drug Trafficking

Small

$250,000 $0
$250,000

Ineligible/Withdraw

$250,000

Drug Manufacturing, Drug

61

MO

534

Dealing, Drug Trafficking

Small

$108,733

Case 2:17-cv-07215-R-JC Document 54-1 Filed 01/12/18 Page 139 of 208 Page ID #:1886

62

FL

173 Building Trust and Respect Small

63

IL

297

Human Trafficking

Small

64

MD

452

Robbery

Small

65

FL

233

Assault

Small

66

CA

81

Criminal Gangs

Small

Youth Crime and

67

IL

331

Delinquency

Small

68

SC

896

Disorderly Activity

Small

69

PA

862

70

CA

83

Robbery Youth Crime and
Delinquency

Small Small

Other Homeland Security

71

OH

777

Problem (please specify)

Small

Drug Manufacturing, Drug

72

CA

107

Dealing, Drug Trafficking

Small

Drug Manufacturing, Drug

73

GA

259

Dealing, Drug Trafficking

Small

74

CA

92

Homicide

Small

75

FL

206 Building Trust and Respect Small

Children Exposed to

76

CA

128

Violence

Small

77

CA

119

Illegal Immigration

Small

78

PA

852

Homicide

Small

79

LA

398

Robbery

Small

Other Homeland Security

80

CA

126

Problem (please specify)

Small

Drug Manufacturing, Drug

81

MN

520

Dealing, Drug Trafficking

Small

82

IN

349

Domestic/Family Violence

Small

Drug Manufacturing, Drug

83

MN

521

Dealing, Drug Trafficking

Small

84

MA

412

Gun Violence

Small

85

KY

375

Homicide

Small

Protecting Critical

86

NJ

631

Infrastructure Problems

Small

Information or Intelligence

87

TX

966

Problems

Small

$625,000 $375,000 $104,812 462239 $125,000
$375,000
$750,000
$375,000
$0

Last Small Agency Funded
Funded to Meet State Minimum Requirement

$0

$0

$0 $0
$0
$0 $0 $0 $0

$0

Ineligible/Withdraw

$0 $0

$0 $0 $0
$0
$0

Case 2:17-cv-07215-R-JC Document 54-1 Filed 01/12/18 Page 140 of 208 Page ID #:1887

Drug Manufacturing, Drug

88

IN

360

Dealing, Drug Trafficking

Small

Drug Manufacturing, Drug

89

OH

794

Dealing, Drug Trafficking

Small

Drug Manufacturing, Drug

90

WI

1090

Dealing, Drug Trafficking

Small

Other Non-Violent Crime

91

FL

225

Problem (please specify)

Small

92

IL

291 Building Trust and Respect Small

Other Violent Crime

93

WA

1041

Problem (please specify)

Small

94

GA

244

Robbery

Small

Other Violent Crime

95

CO

137

Problem (please specify)

Small

Protecting Critical

96

NJ

630

Infrastructure Problems

Small

97

MN

509

Gun Violence

Small

98

NV

99

OH

100

NC

700

Domestic/Family Violence

Small

781 Building Trust and Respect Small

601

Robbery

Small

101

UT

1004 Building Trust and Respect Small

102

TX

986

Robbery

Small

103

IN

Drug Manufacturing, Drug

356

Dealing, Drug Trafficking

Small

104

CA

Other Homeland Security

87

Problem (please specify)

Small

105

TX

106

NY

Drug Manufacturing, Drug

973

Dealing, Drug Trafficking

Small

Protecting Critical

710

Infrastructure Problems

Small

107

MS

558

108

FL

227

Gun Violence Homicide

Small Small

$0

$0

$0

$0 $0

$0 $0
$500,000 $0 $0
$125,000 $0 $0
$500,000 $0

Funded to Meet State Minimum Requirement
Funded to Meet State Minimum Requirement
Funded to Meet State Minimum Requirement

$0

$0

$0 $0
$320,185 $0

Funded to Meet State Minimum Requirement

Case 2:17-cv-07215-R-JC Document 54-1 Filed 01/12/18 Page 141 of 208 Page ID #:1888

109

OK

Protecting Critical

812

Infrastructure Problems

Small

110

OK

111

CA

112

MD

113

CA

114

MD

115

OH

116

NJ

816

Criminal Gangs

Small

122

Gun Violence

Small

445

School based Policing

Small

Youth Crime and

88

Delinquency

Small

Protecting Critical

448

Infrastructure Problems

Small

Child Sexual Predators and

772

Internet Safety

Small

654

Rape

Small

117

MT

118

IL

119

MD

120

PA

121

SC

122

CA

576

Quality of Life Problem

Small

293 Building Trust and Respect Small

Drug Manufacturing, Drug

440

Dealing, Drug Trafficking

Small

Drug Manufacturing, Drug

869

Dealing, Drug Trafficking

Small

897

Homicide

Small

Other Violent Crime

74

Problem (please specify)

Small

123

AZ

124

TX

62

Domestic/Family Violence

Small

Drug Manufacturing, Drug

950

Dealing, Drug Trafficking

Small

125

NH

126

GA

127

MA

614 Building Trust and Respect Small

242

Criminal Gangs

Small

Drug Abuse Education,

Prevention, and

415

Intervention

Small

Drug Manufacturing, Drug

128

MN

513

Dealing, Drug Trafficking

Small

Larceny/Theft (Non-Motor

129

WA

1042

Vehicle)

Small

130

DE

162

Assault

Small

$53,228
$250,000 $0 $0 $0 $0 $0 $0
$125,000 $0

Funded to Meet State Minimum Requirement Funded to Meet State Minimum Requirement
Funded to Meet State Minimum Requirement

$0

$0 $0

$0 $250,000

Funded to Meet State Minimum Requirement

$0
$250,000 $0

Funded to Meet State Minimum Requirement

$0

$0 $0
$125,000

Funded to Meet State Minimum Requirement

Case 2:17-cv-07215-R-JC Document 54-1 Filed 01/12/18 Page 142 of 208 Page ID #:1889

131

FL

132

SD

133

NJ

134

OH

Youth Crime and

186

Delinquency

Small

Drug Manufacturing, Drug

916

Dealing, Drug Trafficking

Small

Drug Abuse Education,

Prevention, and

653

Intervention

Small

Protecting Critical

745

Infrastructure Problems

Small

$0 $125,000

Funded to Meet State Minimum Requirement

$0 $0

135

IL

298 Building Trust and Respect Small

$0

Drug Manufacturing, Drug

136

IN

354

Dealing, Drug Trafficking

Small

$0

137

TX

961

Gun Violence

Small

$0

138

OK

139

TN

806

Gun Violence

Small

Drug Manufacturing, Drug

925

Dealing, Drug Trafficking

Small

$195,431

Funded to Meet State Minimum Requirement

0

Ineligible/Withdraw

140

TX

964 Building Trust and Respect Small

$0

141

TX

997

Illegal Immigration

Small

$0

142

MS

557

Homicide

Small

$0

143

IL

302

Domestic/Family Violence

Small

$0

144

PA

856

Illegal Immigration

Small

$0

145

NC

592 Building Trust and Respect Small

$0

146

NC

599

Criminal Gangs

Small

$0

147

FL

216

Robbery

Small

$0

148

GA

247

Burglary

Small

$0

Protecting Critical

149

NJ

669

Infrastructure Problems

Small

$0

Youth Crime and

150

CA

95

Delinquency

Small

$0

151

GA

241

Criminal Gangs

Small

$0

152

WI

1063

School based Policing

Small

$0

153

GA

263

Assault

Small

$0

154

IN

357 Building Trust and Respect Small

$0

Motor Vehicle Theft/Theft

155

FL

180

from Motor Vehicle

Small

$0

156

MO

544 Building Trust and Respect Small

$0

157

FL

176

Quality of Life Problem

Small

0

Protecting Critical

158

AL

29

Infrastructure Problems

Small

$0

Case 2:17-cv-07215-R-JC Document 54-1 Filed 01/12/18 Page 143 of 208 Page ID #:1890

159

MA

428

Assault

Small

$0

160

WA

1052

Quality of Life Problem

Small

$0

161

MD

449

Robbery

Small

$0

Motor Vehicle Theft/Theft

162

NC

594

from Motor Vehicle

Small

$0

163

NY

723

Gun Violence

Small

$0

164

CA

84

Building Trust and Respect Small

$0

Drug Manufacturing, Drug

165

PA

864

Dealing, Drug Trafficking

Small

$0

166

TX

971

School based Policing

Small

$0

Other Non-Violent Crime

167

SC

887

Problem (please specify)

Small

$0

Drug Manufacturing, Drug

168

TX

963

Dealing, Drug Trafficking

Small

$0

Protecting Critical

169

NJ

624

Infrastructure Problems

Small

$0

170

CA

77

School based Policing

Small

$0

Other Homeland Security

171

PA

848

Problem (please specify)

Small

$0

172

NJ

685

School based Policing

Small

$0

173

MO

524

School based Policing

Small

$0

174

CO

136

Assault

Small

$0

175

MT

176

NJ

177

FL

178

NJ

179

KY

575

School based Policing

Small

648

Gun Violence

Small

195

Burglary

Small

Larceny/Theft (Non-Motor

645

Vehicle)

Small

391

Quality of Life Problem

Small

$125,000 $0 $0
$0 $0

Funded to Meet State Minimum Requirement

Drug Manufacturing, Drug

180

CT

155

Dealing, Drug Trafficking

Small

$0

181

FL

221

School based Policing

Small

$0

182

WI

1099

Rape

Small

$0

Drug Abuse Education,

Prevention, and

183

OK

804

Intervention

Small

$0

Other Violent Crime

184

AR

39

Problem (please specify)

Small

185

MN

518

Human Trafficking

Small

186

LA

404

Burglary

Small

$249,604 $0 $0

Funded to Meet State Minimum Requirement

Case 2:17-cv-07215-R-JC Document 54-1 Filed 01/12/18 Page 144 of 208 Page ID #:1891

Drug Abuse Education,

Prevention, and

187

OH

791

Intervention

Small

$0

Children Exposed to

188

OK

800

Violence

Small

$0

Protecting Critical

189

CA

85

Infrastructure Problems

Small

$0

Drug Abuse Education,

Prevention, and

190

PA

837

Intervention

Small

$0

191

FL

196

Burglary

Small

$0

Drug Manufacturing, Drug

192

TX

982

Dealing, Drug Trafficking

Small

$0

193

AZ

59

Quality of Life Problem

Small

$250,000

Funded to Meet State Minimum Requirement

Drug Manufacturing, Drug

194

GA

237

Dealing, Drug Trafficking

Small

$0

Drug Abuse Education,

Prevention, and

195

OH

779

Intervention

Small

$0

196

TX

970

Criminal Gangs

Small

$0

197

CA

93

School based Policing

Small

$0

198

NV

Drug Manufacturing, Drug

698

Dealing, Drug Trafficking

Small

$125,000

Funded to Meet State Minimum Requirement

Motor Vehicle Theft/Theft

199

GA

251

from Motor Vehicle

Small

$0

Drug Abuse Education,

Prevention, and

200

NJ

623

Intervention

Small

$0

Other Homeland Security

201

TX

952

Problem (please specify)

Small

$0

202

FL

191

Burglary

Small

$0

Other Homeland Security

203

NY

711

Problem (please specify)

Small

$0

Drug Manufacturing, Drug

204

NC

597

Dealing, Drug Trafficking

Small

$0

205

MO

532 Building Trust and Respect Small

$0

206

OR

207

FL

827

Quality of Life Problem

Small

211 Building Trust and Respect Small

$250,000 $0

Funded to Meet State Minimum Requirement

Case 2:17-cv-07215-R-JC Document 54-1 Filed 01/12/18 Page 145 of 208 Page ID #:1892

Youth Crime and

208

TX

953

Delinquency

Small

$0

Drug Abuse Education,

Prevention, and

209

WA

1040

Intervention

Small

$0

Other Non-Violent Crime

210

CA

120

Problem (please specify)

Small

$0

211

OR

829 Building Trust and Respect Small

212

AZ

60

Robbery

Small

213

MA

437

School based Policing

Small

Youth Crime and

214

FL

223

Delinquency

Small

215

WA

1047

Burglary

Small

216

NJ

217

CO

Drug Manufacturing, Drug

647

Dealing, Drug Trafficking

Small

148

Quality of Life Problem

Small

218

KY

378 Building Trust and Respect Small

219

KY

383 Building Trust and Respect Small

$250,000 $0 $0
$0 $0

Funded to Meet State Minimum Requirement

$0 $0
$0
$0

220

PR

878

Robbery

Small

$137,745

Funded to Meet State Minimum Requirement

Drug Manufacturing, Drug

221

WV

1110

Dealing, Drug Trafficking

Small

$123,693

Funded to Meet State Minimum Requirement

222

NJ

686 Building Trust and Respect Small

$0

Other Violent Crime

223

WA

1044

Problem (please specify)

Youth Crime and

224

WI

1077

Delinquency

Small Small

225

CA

226

NJ

Drug Manufacturing, Drug

129

Dealing, Drug Trafficking

Small

Youth Crime and

626

Delinquency

Small

$0

$0

Ineligible/Withdraw

$0 $0

227

RI

885

School based Policing

Small

228

TX

976

Quality of Life Problem

Small

$500,000 $0

Funded to Meet State Minimum Requirement

229

WV

1113

Misdemeanor Crimes

Small

230

SC

892 Building Trust and Respect Small

$250,000 $0

Funded to Meet State Minimum Requirement

Case 2:17-cv-07215-R-JC Document 54-1 Filed 01/12/18 Page 146 of 208 Page ID #:1893

231

FL

232

AK

Protecting Critical

220

Infrastructure Problems

Small

Drug Manufacturing, Drug

1

Dealing, Drug Trafficking

Small

$0 $125,000

Funded to Meet State Minimum Requirement

Other Homeland Security

233

MI

482

Problem (please specify)

Small

$0

234

VA

1030

Gun Violence

Small

$0

235

OH

755

Driver Safety

Small

$0

Other Violent Crime

236

TX

974

Problem (please specify)

Small

$0

237

NH

238

MN

239

CO

617

School based Policing

Small

Drug Abuse Education,

Prevention, and

505

Intervention

Small

Information or Intelligence

149

Problems

Small

$125,000

Funded to Meet State Minimum Requirement

$0 $0

240

AL

23

Building Trust and Respect Small

$0

241

NY

738

School based Policing

Small

$0

242

WI

1075 Domestic/Family Violence

Small

$0

243

VA

1023 Building Trust and Respect Small

$0

244

KY

245

PA

246

PA

247

MI

248

AK

249

TX

250

MN

Drug Manufacturing, Drug

384

Dealing, Drug Trafficking

Small

845

Domestic/Family Violence

Small

Drug Manufacturing, Drug

846

Dealing, Drug Trafficking

Small

469

Burglary

Small

Drug Abuse Education,

Prevention, and

3

Intervention

Small

985

Burglary

Small

Drug Abuse Education,

Prevention, and

504

Intervention

Small

$0 $0

$0 $0
$125,000 $0

Funded to Meet State Minimum Requirement

$0

Ineligible/Withdraw

Other Violent Crime

251

KS

366

Problem (please specify)

Small

$0

Drug Manufacturing, Drug

252

NC

596

Dealing, Drug Trafficking

Small

$0

253

FL

179

Traffic Accidents

Small

0

Case 2:17-cv-07215-R-JC Document 54-1 Filed 01/12/18 Page 147 of 208 Page ID #:1894

254

MN

497 Building Trust and Respect Small

255

FL

256

NY

257

ME

258

AR

170 Building Trust and Respect Small

Protecting Critical

725

Infrastructure Problems

Small

Drug Abuse Education,

Prevention, and

456

Intervention

Small

47

School based Policing

Small

259

CA

260

SD

110 Building Trust and Respect Small

Drug Abuse Education,

Prevention, and

917

Intervention

Small

261

MS

564 Building Trust and Respect Small

262

KY

390

Domestic/Family Violence

Small

263

KY

Drug Manufacturing, Drug

386

Dealing, Drug Trafficking

Small

264

IN

265

PA

Drug Manufacturing, Drug

347

Dealing, Drug Trafficking

Small

Drug Abuse Education,

Prevention, and

849

Intervention

Small

266

TX

947 Building Trust and Respect Small

267

WI

1085

Human Trafficking

Small

268

TX

960

School based Policing

Small

Drug Abuse Education,

Prevention, and

269

CA

109

Intervention

Small

270

TX

271

NJ

272

NY

273

PA

274

IL

275

FL

276

IL

277

GA

278

NC

991 Building Trust and Respect Small

Other Traffic/Pedestrian

Safety Problem (please

675

specify)

Small

727

Quality of Life Problem

Small

875

School based Policing

Small

329

Criminal Gangs

Small

218

Rape

Small

301

Gun Violence

Small

264

School based Policing

Small

589

Burglary

Small

279

MD

453

Domestic/Family Violence

Small

280

VA

1016

Quality of Life Problem

Small

$0 $0 $0
$125,000 $0 $0

Funded to Meet State Minimum Requirement

$0 $0 $0

$0

$0

$0
$0 $0 $0

$0 $0

$0 $0 $0 $0 $0 $0 $0 $0
$0 $0

Case 2:17-cv-07215-R-JC Document 54-1 Filed 01/12/18 Page 148 of 208 Page ID #:1895

281

IL

282

FL

312 Building Trust and Respect Small

181

Burglary

Small

283

NY

Other Violent Crime

704

Problem (please specify)

Small

284

AL

285

IL

286

FL

8

Domestic/Family Violence

Small

333

School based Policing

Small

175

Quality of Life Problem

Small

287

VA

1026 Building Trust and Respect Small

288

KY

289

OK

290

MA

291

AL

292

OK

Drug Manufacturing, Drug

385

Dealing, Drug Trafficking

Small

Drug Abuse Education,

Prevention, and

817

Intervention

Small

Drug Abuse Education,

Prevention, and

418

Intervention

Small

19

Gun Violence

Small

819

Burglary

Small

293

IL

316 Building Trust and Respect Small

294

PA

Drug Manufacturing, Drug

838

Dealing, Drug Trafficking

Small

295

SD

296

MA

297

PA

910

Domestic/Family Violence

Small

431

School based Policing

Small

844

Quality of Life Problem

Small

298

ND

607

Youth Crime and Delinquency

Small

299

WI

1083 Building Trust and Respect Small

300

MO

546

Human Trafficking

Small

301

IN

302

CA

303

NY

359 Building Trust and Respect Small

134

Quality of Life Problem

Small

712

School based Policing

Small

304

FL

305

AL

229 Building Trust and Respect Small

34

School based Policing

Small

306

MD

307

IL

308

CA

309

TX

451 Building Trust and Respect Small

295

Assault

Small

82

Criminal Gangs

Small

Larceny/Theft (Non-Motor

969

Vehicle)

Small

$0 0

$0
$0 $0 0
$0

$0

$0

$0 $0 $0
$0

$0
$0 $0 $0
$375,000
$0 $0
$0 $0 $0
$0 $0
$0 $0 $0
$0

Funded to Meet State Minimum Requirement

Case 2:17-cv-07215-R-JC Document 54-1 Filed 01/12/18 Page 149 of 208 Page ID #:1896

310

WI

1082

Human Trafficking

Small

$0

311

PR

312

GA

313

KY

314

MI

Drug Manufacturing, Drug

880

Dealing, Drug Trafficking

Small

236

Criminal Gangs

Small

380

School based Policing

Small

Drug Abuse Education,

Prevention, and

471

Intervention

Small

$79,115 $0 $0

Funded to Meet State Minimum Requirement

$0

Other Homeland Security

315

WA

1056

Problem (please specify)

Small

316

IA

317

MA

318

WA

268
413 1054

School based Policing Drug Abuse Education,
Prevention, and Intervention
Quality of Life Problem

Small
Small Small

$0 $125,000

Funded to Meet State Minimum Requirement

$0 $0

319

NV

320

FL

321

FL

699

Assault

Small

212 Building Trust and Respect Small

192

Illegal Immigration

Small

$125,000
$0 $0

Funded to Meet State Minimum Requirement

Drug Manufacturing, Drug

322

TX

946

Dealing, Drug Trafficking

Small

$0

Drug Manufacturing, Drug

323

PA

853

Dealing, Drug Trafficking

Small

$0

Drug Abuse Education,

Prevention, and

324

FL

208

Intervention

Small

$0

325

IL

288

Assault

Small

$0

326

TN

327

FL

328

AZ

329

CA

330

DE

933 Building Trust and Respect Small

Other Traffic/Pedestrian

Safety Problem (please

234

specify)

Small

67

Criminal Gangs

Small

130

Criminal Gangs

Small

Drug Manufacturing, Drug

167

Dealing, Drug Trafficking

Small

$0

0 $0 $0
$125,000

Funded to Meet State Minimum Requirement

Drug Manufacturing, Drug

331

WV

1108

Dealing, Drug Trafficking

Small

332

MD

447

School based Policing

Small

$125,000 $0

Funded to Meet State Minimum Requirement

333

GA

256 Building Trust and Respect Small

$0

Case 2:17-cv-07215-R-JC Document 54-1 Filed 01/12/18 Page 150 of 208 Page ID #:1897

334

NY

714

School based Policing

Small

$0

335

ID

336

NJ

337

OH

283

Quality of Life Problem

Small

643 Building Trust and Respect Small

Drug Abuse Education,

Prevention, and

776

Intervention

Small

$250,000 $0

Funded to Meet State Minimum Requirement

$0

338

DE

339

FL

340

CA

341

GA

168 Building Trust and Respect Small

169

Gun Violence

Small

101

School based Policing

Small

260

Burglary

Small

$100,651 $0 $0 $0

Funded to Meet State Minimum Requirement

Other Violent Crime

342

AL

11

Problem (please specify)

Small

$0

343

UT

1006 Building Trust and Respect Small

$0

Drug Abuse Education,

Prevention, and

344

TN

924

Intervention

Small

$0

345

TN

930

School based Policing

Small

$0

Drug Manufacturing, Drug

346

NY

736

Dealing, Drug Trafficking

Small

$0

347

FL

189 Building Trust and Respect Small

$0

Other Non-Violent Crime

348

FL

178

Problem (please specify)

Small

$0

349

OH

767

Disorderly Activity

Small

$0

Drug Abuse Education,

Prevention, and

350

MA

434

Intervention

Small

$0

351

MN

501

Quality of Life Problem

Small

$0

352

IL

292

Robbery

Small

$0

Drug Manufacturing, Drug

353

FL

213

Dealing, Drug Trafficking

Small

$0

Drug Abuse Education,

Prevention, and

354

PA

835

Intervention

Small

$0

355

CA

132 Building Trust and Respect Small

0

Other Non-Violent Crime

356

MO

523

Problem (please specify)

Small

$0

Larceny/Theft (Non-Motor

357

MI

496

Vehicle)

Small

$0

Case 2:17-cv-07215-R-JC Document 54-1 Filed 01/12/18 Page 151 of 208 Page ID #:1898

Protecting Critical

358

NY

713

Infrastructure Problems

Small

$0

Larceny/Theft (Non-Motor

359

NJ

676

Vehicle)

Small

$0

360

PA

863 Building Trust and Respect Small

$0

Other Non-Violent Crime

361

VA

1024

Problem (please specify)

Small

$0

362

CA

115

School based Policing

Small

$0

363

AL

Motor Vehicle Theft/Theft

28

from Motor Vehicle

Small

364

PR

879

Homicide

Small

$0 $304,186

Funded to Meet State Minimum Requirement

365

NJ

638 Building Trust and Respect Small

$0

Youth Crime and

366

MI

487

Delinquency

Small

$0

367

NJ

656 Building Trust and Respect Small

$0

368

MO

536 Building Trust and Respect Small

$0

369

CA

121

Homicide

Small

$0

Drug Manufacturing, Drug

370

VA

1013

Dealing, Drug Trafficking

Small

$0

Youth Crime and

371

OH

773

Delinquency

Small

$0

Drug Abuse Education,

Prevention, and

372

NJ

671

Intervention

Small

$0

Larceny/Theft (Non-Motor

373

CA

117

Vehicle)

Small

$0

Drug Abuse Education,

Prevention, and

374

MA

433

Intervention

Small

$0

375

CO

145

School based Policing

Small

$0

Drug Manufacturing, Drug

376

WI

1094

Dealing, Drug Trafficking

Small

$0

377

AR

46

School based Policing

Small

$0

Youth Crime and

378

SD

920

Delinquency

Small

$0

379

PA

Other Violent Crime

857

Problem (please specify)

Small

380

DE

166

Criminal Gangs

Small

$0 $125,000

Funded to Meet State Minimum Requirement

Case 2:17-cv-07215-R-JC Document 54-1 Filed 01/12/18 Page 152 of 208 Page ID #:1899

381

VA

1027

Burglary

Small

$0

Youth Crime and

382

SC

891

Delinquency

Small

$0

Other Homeland Security

383

WA

1061

Problem (please specify)

Small

$0

384

IL

318 Building Trust and Respect Small

$0

385

MD

450 Building Trust and Respect Small

$0

386

SC

900 Building Trust and Respect Small

$0

Drug Abuse Education,

Prevention, and

387

NJ

677

Intervention

Small

$0

Other Violent Crime

388

NJ

639

Problem (please specify)

Small

$0

389

SC

901

Drunk Drving

Small

$0

Drug Manufacturing, Drug

390

NJ

641

Dealing, Drug Trafficking

Small

$0

391

ND

606 Building Trust and Respect Small

392

WV

1115

Misdemeanor Crimes

Small

Drug Abuse Education,

Prevention, and

393

PA

866

Intervention

Small

394

CA

96

Social Disorder

Small

$125,000 $0

Funded to Meet State Minimum Requirement

$0 $0

395

NJ

622 Building Trust and Respect Small

$0

Child Sexual Predators and

396

SC

893

Internet Safety

Small

$0

Drug Abuse Education,

Prevention, and

397

PA

847

Intervention

Small

$0

398

NJ

683

School based Policing

Small

$0

Drug Abuse Education,

Prevention, and

399

OH

747

Intervention

Small

$0

400

CA

102

Gun Violence

Small

$0

Drug Manufacturing, Drug

401

OH

780

Dealing, Drug Trafficking

Small

$0

Motor Vehicle Theft/Theft

402

FL

215

from Motor Vehicle

Small

$0

403

TN

940

School based Policing

Small

$0

404

UT

1007

School based Policing

Small

$0

Case 2:17-cv-07215-R-JC Document 54-1 Filed 01/12/18 Page 153 of 208 Page ID #:1900

405

OK

406

NY

407

NH

408

GA

409

NJ

410

AZ

411

GA

412

NC

413

IL

414

OK

415

CA

821 Building Trust and Respect Small

Youth Crime and

740

Delinquency

Small

Drug Abuse Education,

Prevention, and

612

Intervention

Small

249 Building Trust and Respect Small

Youth Crime and

661

Delinquency

Small

Drug Abuse Education,

Prevention, and

65

Intervention

Small

235

School based Policing

Small

Drug Abuse Education,

Prevention, and

587

Intervention

Small

Other Violent Crime

287

Problem (please specify)

Small

802

School based Policing

Small

75

Building Trust and Respect Small

416

ME

461

School based Policing

Small

417

WI

1088 Building Trust and Respect Small

Drug Abuse Education,

Prevention, and

418

NJ

651

Intervention

Small

419

WA

1046

School based Policing

Small

Drug Abuse Education,

Prevention, and

420

PA

859

Intervention

Small

421

FL

226

School based Policing

Small

Youth Crime and

422

NC

591

Delinquency

Small

Larceny/Theft (Non-Motor

423

LA

400

Vehicle)

Small

424

IN

Drug Manufacturing, Drug

344

Dealing, Drug Trafficking

Small

425

GA

261

Domestic/Family Violence

Small

426

VI

1032

427

OK

801

Traffic Congestion School based Policing

Small Small

$0 $0
$125,000 $0 $0

Funded to Meet State Minimum Requirement

$0 $0

$0

$0 $0 $0
$125,000 $0

Funded to Meet State Minimum Requirement

$0 $0

$0 $0
$0
$0

$0 $0
$586,920 $0

Funded to Meet State Minimum Requirement

Case 2:17-cv-07215-R-JC Document 54-1 Filed 01/12/18 Page 154 of 208 Page ID #:1901

428

WA

1048 Building Trust and Respect Small

Child Sexual Predators and

429

NJ

629

Internet Safety

Small

430

FL

194

Robbery

Small

Other Traffic/Pedestrian

Safety Problem (please

431

MO

529

specify)

Small

432

NB

582

Criminal Gangs

Small

433

NJ

658 Building Trust and Respect Small

434

OH

Drug Manufacturing, Drug

746

Dealing, Drug Trafficking

Small

435

OH

Drug Manufacturing, Drug

752

Dealing, Drug Trafficking

Small

436

NM

697

Burglary

Small

437

AR

438

OH

439

CA

440

IN

441

PA

40

Domestic/Family Violence

Small

761

School based Policing

Small

Child Sexual Predators and

123

Internet Safety

Small

Youth Crime and

355

Delinquency

Small

867

School based Policing

Small

442

NY

Other Homeland Security

741

Problem (please specify)

Small

443

IL

305 Building Trust and Respect Small

444

SC

890 Building Trust and Respect Small

445

MO

446

AL

Drug Manufacturing, Drug

541

Dealing, Drug Trafficking

Small

32

Quality of Life Problem

Small

447

VA

1019 Building Trust and Respect Small

448

OR

825

School based Policing

Small

449

MS

570

Gun Violence

Small

Drug Manufacturing, Drug

450

NY

716

Dealing, Drug Trafficking

Small

Drug Abuse Education,

Prevention, and

451

TN

936

Intervention

Small

452

UT

1005

School based Policing

Small

$0
$0 $0

$0 $0
$0

$0

$0
$250,000 $0 $0 $0 $0 $0

Funded to Meet State Minimum Requirement

$0 $0 $0

$0 $0
$0 $0 $0

$0

$0 $0

Case 2:17-cv-07215-R-JC Document 54-1 Filed 01/12/18 Page 155 of 208 Page ID #:1902

453

TX

948 Building Trust and Respect Small

454

WA

1039

School based Policing

Small

455

OK

809

Illegal Immigration

Small

456

CT

457

MO

458

IL

459

AL

157 Building Trust and Respect Small

545

School based Policing

Small

Drug Abuse Education,

Prevention, and

332

Intervention

Small

24

Gun Violence

Small

460

OH

461

MO

462

NH

Drug Manufacturing, Drug

748

Dealing, Drug Trafficking

Small

Drug Abuse Education,

Prevention, and

527

Intervention

Small

618

School based Policing

Small

463

IL

464

FL

Drug Manufacturing, Drug

325

Dealing, Drug Trafficking

Small

184

Driver Safety

Small

465

TN

Drug Manufacturing, Drug

934

Dealing, Drug Trafficking

Small

466

NJ

467

NJ

646 Building Trust and Respect Small

Youth Crime and

660

Delinquency

Small

468

MA

429 Building Trust and Respect Small

469

ID

470

GA

471

MI

Drug Manufacturing, Drug

285

Dealing, Drug Trafficking

Small

262

School based Policing

Small

493

Human Trafficking

Small

472

NB

473

MN

581

Domestic/Family Violence

Small

Children Exposed to

519

Violence

Small

474

CA

475

MA

476

NJ

Motor Vehicle Theft/Theft

78

from Motor Vehicle

Small

Drug Abuse Education,

Prevention, and

417

Intervention

Small

Drug Abuse Education,

Prevention, and

670

Intervention

Small

477

IL

290 Building Trust and Respect Small

$0 $0 $0
$0 $0

$0 $0

$0

$0 $0

$0 $0

$0 $0 $0 $0
$125,000 $0 $0 $0 $0

Funded to Meet State Minimum Requirement

$0

$0

$0 $0

Case 2:17-cv-07215-R-JC Document 54-1 Filed 01/12/18 Page 156 of 208 Page ID #:1903

Protecting Critical

478

NJ

625

Infrastructure Problems

Small

$0

Other Violent Crime

479

SD

907

Problem (please specify)

Small

$0

Drug Manufacturing, Drug

480

MI

462

Dealing, Drug Trafficking

Small

$0

481

NY

482

IL

483

TN

484

OH

485

AL

486

NJ

487

MI

Drug Manufacturing, Drug

734

Dealing, Drug Trafficking

Small

327

Burglary

Small

Motor Vehicle Theft/Theft

943

from Motor Vehicle

Small

771

Drunk Drving

Small

Drug Abuse Education,

Prevention, and

14

Intervention

Small

Protecting Critical

621

Infrastructure Problems

Small

479

Assault

Small

488

ID

281

489

SD

905

490

MA

414

School based Policing Drug Abuse Education,
Prevention, and Intervention
School based Policing

Small
Small Small

$0 $0

$0 $0

$0 $0 $0
$125,000

Funded to Meet State Minimum Requirement

$0 $0

491

MA

422 Building Trust and Respect Small

$0

492

IL

294

Gun Violence

Small

$0

493

OR

831

School based Policing

Small

$0

494

TX

965 Building Trust and Respect Small

$0

495

KS

372

Burglary

Small

$0

Child Sexual Predators and

496

WI

1091

Internet Safety

Small

$0

497

MN

506

School based Policing

Small

$0

498

NM

Other Homeland Security

694

Problem (please specify)

Small

499

IA

277 Building Trust and Respect Small

$133,337 $125,000

Funded to Meet State Minimum Requirement
Funded to Meet State Minimum Requirement

Drug Manufacturing, Drug

500

IN

341

Dealing, Drug Trafficking

Small

$0

Drug Abuse Education,

Prevention, and

501

PA

834

Intervention

Small

$0

Case 2:17-cv-07215-R-JC Document 54-1 Filed 01/12/18 Page 157 of 208 Page ID #:1904

502

CA

105 Building Trust and Respect Small

503

NJ

635

Burglary

Small

504

WI

1069

School based Policing

Small

505

OH

774 Building Trust and Respect Small

506

FL

507

OR

197 Building Trust and Respect Small

Drug Abuse Education,

Prevention, and

828

Intervention

Small

508

GA

509

IN

Motor Vehicle Theft/Theft

240

from Motor Vehicle

Small

Drug Abuse Education,

Prevention, and

358

Intervention

Small

510

DE

511

AZ

512

FL

513

IL

514

IL

515

PA

516

NY

517

TX

518

CO

519

OH

520

GA

521

IL

522

TX

523

OH

165

School based Policing

Small

64

School based Policing

Small

Youth Crime and

202

Delinquency

Small

303 Building Trust and Respect Small

Drug Abuse Education,

Prevention, and

334

Intervention

Small

Drug Manufacturing, Drug

855

Dealing, Drug Trafficking

Small

722

School based Policing

Small

Motor Vehicle Theft/Theft

956

from Motor Vehicle

Small

141

School based Policing

Small

Drug Abuse Education,

Prevention, and

766

Intervention

Small

243 Building Trust and Respect Small

Drug Abuse Education,

Prevention, and

323

Intervention

Small

954

Domestic/Family Violence

Small

Drug Abuse Education,

Prevention, and

792

Intervention

Small

$0 $0 $0
$0
$0

$0

$0

$0
$125,000 $0 $0 $0

Funded to Meet State Minimum Requirement

$0

$0 $0

$0 $0

$0 $0

$0 $0

$0

Case 2:17-cv-07215-R-JC Document 54-1 Filed 01/12/18 Page 158 of 208 Page ID #:1905

Drug Manufacturing, Drug

524

WI

1072

Dealing, Drug Trafficking

Small

$0

525

WI

1070

School based Policing

Small

$0

526

NY

720

School based Policing

Small

$0

527

WI

1087 Building Trust and Respect Small

$0

528

TX

983

Human Trafficking

Small

$0

529

VA

1021 Building Trust and Respect Small

$0

Drug Abuse Education,

Prevention, and

530

ND

609

Intervention

Small

$0

Child Sexual Predators and

531

GA

258

Internet Safety

Small

$0

Drug Manufacturing, Drug

532

IL

321

Dealing, Drug Trafficking

Small

$0

Drug Abuse Education,

Prevention, and

533

GA

239

Intervention

Small

$0

Larceny/Theft (Non-Motor

534

MI

490

Vehicle)

Small

$0

Drug Abuse Education,

Prevention, and

535

GA

265

Intervention

Small

$0

Drug Abuse Education,

Prevention, and

536

WI

1080

Intervention

Small

$0

Drug Manufacturing, Drug

537

CA

131

Dealing, Drug Trafficking

Small

$0

538

OH

760 Building Trust and Respect Small

$0

Drug Abuse Education,

Prevention, and

539

MI

474

Intervention

Small

$0

Drug Abuse Education,

Prevention, and

540

OK

811

Intervention

Small

$0

Drug Manufacturing, Drug

541

TN

932

Dealing, Drug Trafficking

Small

$0

542

MS

569

School based Policing

Small

$0

Other Child and Youth

Safety Focus (please

543

MI

480

specify)

Small

$0

Drug Abuse Education,

Prevention, and

544

MA

411

Intervention

Small

$0

545

FL

222

Social Disorder

Small

$0

Case 2:17-cv-07215-R-JC Document 54-1 Filed 01/12/18 Page 159 of 208 Page ID #:1906

546

TX

962

School based Policing

Small

$0

547

OK

807

School based Policing

Small

$0

548

CT

156

Quality of Life Problem

Small

$0

Youth Crime and

549

KY

397

Delinquency

Small

$0

550

OH

775

School based Policing

Small

$0

551

MS

567

Gun Violence

Small

$0

Drug Manufacturing, Drug

552

KS

371

Dealing, Drug Trafficking

Small

$0

Youth Crime and

553

TX

987

Delinquency

Small

$0

Drug Abuse Education,

Prevention, and

554

SD

908

Intervention

Small

$0

Drug Manufacturing, Drug

555

VT

1034

Dealing, Drug Trafficking

Small

556

NJ

657

School based Policing

Small

$125,000 $0

Funded to Meet State Minimum Requirement

Drug Manufacturing, Drug

557

TN

941

Dealing, Drug Trafficking

Small

$0

Child Sexual Predators and

558

OK

808

Internet Safety

Small

$0

559

MO

540

School based Policing

Small

$0

560

WI

1093 Building Trust and Respect Small

$0

561

CA

112

School based Policing

Small

$0

Drug Abuse Education,

Prevention, and

562

PA

840

Intervention

Small

$0

Drug Abuse Education,

Prevention, and

563

IL

296

Intervention

Small

$0

Youth Crime and

564

NJ

687

Delinquency

Small

$0

565

PA

836

Misdemeanor Crimes

Small

$0

566

MI

495

Assault

Small

$0

Drug Manufacturing, Drug

567

PA

872

Dealing, Drug Trafficking

Small

$0

568

WY

1119

School based Policing

Small

569

MT

570

MO

Drug Manufacturing, Drug

574

Dealing, Drug Trafficking

Small

539

Disorderly Activity

Small

571

NY

Drug Manufacturing, Drug

706

Dealing, Drug Trafficking

Small

$125,000
$125,000 $0

Funded to Meet State Minimum Requirement
Funded to Meet State Minimum Requirement

$0

Case 2:17-cv-07215-R-JC Document 54-1 Filed 01/12/18 Page 160 of 208 Page ID #:1907

572

CO

138

School based Policing

Small

$0

573

SD

913

Domestic/Family Violence

Small

$0

574

ND

608

Pedestrian Safety

Small

$0

575

TN

935

Domestic/Family Violence

Small

$0

576

NJ

642

Quality of Life Problem

Small

$0

Drug Manufacturing, Drug

577

IN

342

Dealing, Drug Trafficking

Small

$0

Drug Abuse Education,

Prevention, and

578

IN

348

Intervention

Small

$0

Protecting Critical

579

TX

990

Infrastructure Problems

Small

$0

580

ID

282

School based Policing

Small

$0

Other Violent Crime

581

CA

73

Problem (please specify)

Small

$0

582

FL

199 Building Trust and Respect Small

$0

583

TX

967

Traffic Congestion

Small

$0

Drug Manufacturing, Drug

584

TX

978

Dealing, Drug Trafficking

Small

$0

585

TX

949 Building Trust and Respect Small

$0

Drug Abuse Education,

Prevention, and

586

FL

209

Intervention

Small

$0

587

IA

588

NJ

589

MN

590

NJ

591

CO

272 Building Trust and Respect Small

Drug Abuse Education,

Prevention, and

680

Intervention

Small

510

Burglary

Small

Larceny/Theft (Non-Motor

655

Vehicle)

Small

Drug Abuse Education,

Prevention, and

142

Intervention

Small

$250,000

Funded to Meet State Minimum Requirement

$0 $0
$0

$0

592

VA

1022 Building Trust and Respect Small

$0

Drug Abuse Education,

Prevention, and

593

IN

345

Intervention

Small

$0

594

MI

464

Misdemeanor Crimes

Small

$0

Youth Crime and

595

NJ

649

Delinquency

Small

$0

Case 2:17-cv-07215-R-JC Document 54-1 Filed 01/12/18 Page 161 of 208 Page ID #:1908

596

IL

597

AL

598

AZ

599

AS

600

IA

601

MA

602

OH

603

IA

Drug Manufacturing, Drug

309

Dealing, Drug Trafficking

Small

20

Burglary

Small

58

School based Policing

Small

Drug Abuse Education,

Prevention, and

56

Intervention

Small

270 Building Trust and Respect Small

435 Building Trust and Respect Small

762

School based Policing

Small

Other Homeland Security

273

Problem (please specify)

Small

604

ME

457

School based Policing

Small

605

OH

606

CO

607

NY

608

KY

796 Building Trust and Respect Small

147

School based Policing

Small

Drug Abuse Education,

Prevention, and

701

Intervention

Small

387

School based Policing

Small

Protecting Critical

609

NM

692

Infrastructure Problems

Small

610

FL

611

GA

204 Building Trust and Respect Small

Larceny/Theft (Non-Motor

246

Vehicle)

Small

612

AR

613

IL

614

TN

615

MS

616

IA

617

MI

Drug Manufacturing, Drug

43

Dealing, Drug Trafficking

Small

Larceny/Theft (Non-Motor

300

Vehicle)

Small

942

School based Policing

Small

566

Burglary

Small

275

Quality of Life Problem

Small

Child Sexual Predators and

475

Internet Safety

Small

618

PA

858 Building Trust and Respect Small

619

NY

719

School based Policing

Small

620

VA

1012

School based Policing

Small

Children Exposed to

621

IN

353

Violence

Small

$0 $0 $0
$556,117
$0
$0 $0

Funded to Meet State Minimum Requirement

$0
$125,000 $0 $0

Funded to Meet State Minimum Requirement

$0 $0
$116,597 $0 $0

Funded to Meet State Minimum Requirement

$0
$0 $0 $0 $0
$0
$0 $0 $0
$0

Case 2:17-cv-07215-R-JC Document 54-1 Filed 01/12/18 Page 162 of 208 Page ID #:1909

Drug Manufacturing, Drug

622

CA

76

Dealing, Drug Trafficking

Small

$0

623

KS

369

Misdemeanor Crimes

Small

$0

Drug Abuse Education,

Prevention, and

624

WI

1102

Intervention

Small

$0

625

MS

552

School based Policing

Small

$0

626

SC

888

Quality of Life Problem

Small

$0

627

GA

238 Building Trust and Respect Small

$0

628

OR

824

Quality of Life Problem

Small

$0

629

WI

1105 Building Trust and Respect Small

$0

Motor Vehicle Theft/Theft

630

TX

975

from Motor Vehicle

Small

$0

631

IL

314

School based Policing

Small

$0

632

OH

782 Building Trust and Respect Small

$0

633

OK

810

Driver Safety

Small

$0

634

WA

1058 Building Trust and Respect Small

$0

Youth Crime and

635

NJ

667

Delinquency

Small

$0

636

TX

955 Building Trust and Respect Small

$0

Other Child and Youth

Safety Focus (please

637

FL

174

specify)

Small

$0

Other Child and Youth

Safety Focus (please

638

MA

424

specify)

Small

$0

Youth Crime and

639

OH

743

Delinquency

Small

$0

Drug Abuse Education,

Prevention, and

640

ID

284

Intervention

Small

$0

641

WA

1057

Disorderly Activity

Small

$0

642

NJ

684

Quality of Life Problem

Small

$0

643

NY

739 Building Trust and Respect Small

$0

Drug Abuse Education,

Prevention, and

644

NC

588

Intervention

Small

$0

Motor Vehicle Theft/Theft

645

IN

351

from Motor Vehicle

Small

$0

646

MN

507

School based Policing

Small

$0

647

MA

419

Social Disorder

Small

$0

Case 2:17-cv-07215-R-JC Document 54-1 Filed 01/12/18 Page 163 of 208 Page ID #:1910

Drug Abuse Education,

Prevention, and

648

NC

605

Intervention

Small

$0

Child Sexual Predators and

649

MO

533

Internet Safety

Small

$0

650

MO

543

School based Policing

Small

$0

Drug Abuse Education,

Prevention, and

651

OH

783

Intervention

Small

$0

Drug Manufacturing, Drug

652

MN

522

Dealing, Drug Trafficking

Small

$0

653

CA

71

Building Trust and Respect Small

$0

654

KS

368

School based Policing

Small

$0

655

KS

374

School based Policing

Small

$0

656

SC

902

Quality of Life Problem

Small

$0

Drug Abuse Education,

Prevention, and

657

TX

972

Intervention

Small

$0

658

VA

1014 Building Trust and Respect Small

$0

Drug Abuse Education,

Prevention, and

659

MO

542

Intervention

Small

$0

660

IL

306

Traffic Accidents

Small

$0

Drug Manufacturing, Drug

661

MN

502

Dealing, Drug Trafficking

Small

$0

Youth Crime and

662

PA

874

Delinquency

Small

$0

Youth Crime and

663

LA

407

Delinquency

Small

$0

664

CA

113

School based Policing

Small

$0

665

SC

895 Building Trust and Respect Small

$0

Drug Manufacturing, Drug

666

WI

1067

Dealing, Drug Trafficking

Small

$0

667

KS

365

Traffic Accidents

Small

$0

Drug Abuse Education,

Prevention, and

668

NJ

681

Intervention

Small

$0

Larceny/Theft (Non-Motor

669

SD

906

Vehicle)

Small

$0

670

SD

915

Quality of Life Problem

Small

$0

Other Traffic/Pedestrian

Safety Problem (please

671

WV

1109

specify)

Small

$0

672

WA

1051

Traffic Accidents

Small

$0

Case 2:17-cv-07215-R-JC Document 54-1 Filed 01/12/18 Page 164 of 208 Page ID #:1911

Drug Abuse Education,

Prevention, and

673

MD

444

Intervention

Small

$0

674

WI

1084

Pedestrian Safety

Small

$0

675

AL

18

Misdemeanor Crimes

Small

$0

Drug Abuse Education,

Prevention, and

676

AL

30

Intervention

Small

$0

677

WA

1050

School based Policing

Small

$0

678

TN

922

School based Policing

Small

$0

679

NJ

673

Domestic/Family Violence

Small

$0

680

WI

1098

Burglary

Small

$0

Drug Abuse Education,

Prevention, and

681

SD

909

Intervention

Small

$0

Other Homeland Security

682

TX

951

Problem (please specify)

Small

$0

Drug Abuse Education,

Prevention, and

683

SD

912

Intervention

Small

$0

684

IA

278 Building Trust and Respect Small

$0

685

IN

338 Building Trust and Respect Small

$0

686

NY

718

Quality of Life Problem

Small

$0

687

MI

481

School based Policing

Small

$0

Drug Abuse Education,

Prevention, and

688

OR

830

Intervention

Small

$0

689

IL

326

School based Policing

Small

$0

Drug Manufacturing, Drug

690

NJ

633

Dealing, Drug Trafficking

Small

$0

691

OH

750

Fraud

Small

$0

Drug Abuse Education,

Prevention, and

692

KY

377

Intervention

Small

$0

693

CA

70

School based Policing

Small

$0

Other Traffic/Pedestrian

Safety Problem (please

694

CA

125

specify)

Small

$0

Other Traffic/Pedestrian

Safety Problem (please

695

MO

547

specify)

Small

$0

696

CO

151

Burglary

Small

$0

Drug Manufacturing, Drug

697

KY

382

Dealing, Drug Trafficking

Small

$0

Case 2:17-cv-07215-R-JC Document 54-1 Filed 01/12/18 Page 165 of 208 Page ID #:1912

698

NM

Other Homeland Security

693

Problem (please specify)

Small

699

NJ

Drug Manufacturing, Drug

689

Dealing, Drug Trafficking

Small

700

AL

701

NJ

702

MN

703

CA

704

NY

31

Building Trust and Respect Small

Protecting Critical

663

Infrastructure Problems

Small

517

School based Policing

Small

116

School based Policing

Small

724

School based Policing

Small

705

NY

703

Domestic/Family Violence

Small

706

AL

25

Burglary

Small

707

IL

317

School based Policing

Small

708

AR

36

Vandalism

Small

709

NY

737

Illegal Immigration

Small

710

RI

882

School based Policing

Small

Youth Crime and

711

VA

1018

Delinquency

Small

Drug Abuse Education,

Prevention, and

712

DE

161

Intervention

Small

713

AR

41

Building Trust and Respect Small

714

GA

715

NJ

716

NC

245 Building Trust and Respect Small

688

School based Policing

Small

585

Burglary

Small

717

CO

153

Domestic/Family Violence

Small

718

MO

Drug Manufacturing, Drug

530

Dealing, Drug Trafficking

Small

Information or Intelligence

719

VT

1035

Problems

Small

720

UT

1002 Building Trust and Respect Small

721

IN

350 Building Trust and Respect Small

722

TN

Motor Vehicle Theft/Theft

938

from Motor Vehicle

Small

723

PA

724

MN

Drug Manufacturing, Drug

860

Dealing, Drug Trafficking

Small

499

School based Policing

Small

$0

$0

$0

$0 $0 $0 $0

$0

$0

$0

$0

$0

Ineligible/Withdraw

$0

$0

$0
$0
$0 $0 $0
$0

$0
$113,169 $0 $0

Funded to Meet State Minimum Requirement

$0

$0 $0

Case 2:17-cv-07215-R-JC Document 54-1 Filed 01/12/18 Page 166 of 208 Page ID #:1913

Other Child and Youth

Safety Focus (please

725

IL

308

specify)

Small

$0

726

IL

319 Building Trust and Respect Small

Drug Abuse Education,

Prevention, and

727

WI

1089

Intervention

Small

Drug Abuse Education,

Prevention, and

728

MT

577

Intervention

Small

729

AL

10

School based Policing

Small

Drug Manufacturing, Drug

730

WY

1118

Dealing, Drug Trafficking

Small

Larceny/Theft (Non-Motor

731

OH

768

Vehicle)

Small

$0

$0
$125,000 $0
$125,000 $0

Funded to Meet State Minimum Requirement
Funded to Meet State Minimum Requirement

732

AR

35

Building Trust and Respect Small

$0

733

WI

1096

School based Policing

Small

$0

734

PA

843 Building Trust and Respect Small

$0

735

MA

410

Driver Safety

Small

$0

Other Violent Crime

736

TN

937

Problem (please specify)

Small

$0

737

NY

728 Building Trust and Respect Small

$0

738

FL

193 Building Trust and Respect Small

$0

Drug Abuse Education,

Prevention, and

739

NH

613

Intervention

Small

$0

Child Sexual Predators and

740

WI

1101

Internet Safety

Small

$0

Drug Manufacturing, Drug

741

NY

732

Dealing, Drug Trafficking

Small

$0

742

IN

346

School based Policing

Small

$0

Drug Abuse Education,

Prevention, and

743

NH

616

Intervention

Small

$0

744

MS

551 Building Trust and Respect Small

$0

Youth Crime and

745

CO

150

Delinquency

Small

$0

746

WA

1038

School based Policing

Small

$0

747

IL

310 Building Trust and Respect Small

$0

Protecting Critical

748

AL

17

Infrastructure Problems

Small

$0

Case 2:17-cv-07215-R-JC Document 54-1 Filed 01/12/18 Page 167 of 208 Page ID #:1914

Drug Abuse Education,

Prevention, and

749

NY

726

Intervention

Small

$0

Youth Crime and

750

MO

535

Delinquency

Small

$0

Drug Abuse Education,

Prevention, and

751

NJ

652

Intervention

Small

$0

Youth Crime and

752

OK

820

Delinquency

Small

$0

Drug Abuse Education,

Prevention, and

753

OH

793

Intervention

Small

$0

754

TX

977 Building Trust and Respect Small

$0

755

MI

470

School based Policing

Small

$0

756

ME

757

SD

460

Domestic/Family Violence

Small

911

School based Policing

Small

$125,000 $0

Funded to Meet State Minimum Requirement

758

OK

813 Building Trust and Respect Small

$0

759

FL

232

Driver Safety

Small

$0

Drug Abuse Education,

Prevention, and

760

NJ

637

Intervention

Small

$0

Drug Manufacturing, Drug

761

MS

568

Dealing, Drug Trafficking

Small

$0

762

WA

1053

School based Policing

Small

$0

Motor Vehicle Theft/Theft

763

WA

1045

from Motor Vehicle

Small

$0

764

WI

1097 Building Trust and Respect Small

$0

765

VA

1020

School based Policing

Small

$0

766

IL

304

School based Policing

Small

$0

767

MN

514

School based Policing

Small

$0

Child Sexual Predators and

768

IL

320

Internet Safety

Small

$0

769

MO

526 Building Trust and Respect Small

$0

Other Homeland Security

770

NY

702

Problem (please specify)

Small

$0

771

TX

994 Building Trust and Respect Small

$0

772

AR

55

Traffic Congestion

Small

$0

773

FL

207 Building Trust and Respect Small

$0

Case 2:17-cv-07215-R-JC Document 54-1 Filed 01/12/18 Page 168 of 208 Page ID #:1915

Youth Crime and

774

AL

13

Delinquency

Small

$0

Drug Abuse Education,

Prevention, and

775

WI

1074

Intervention

Small

$0

776

MA

420

School based Policing

Small

$0

777

MI

468

Fraud

Small

$0

778

MS

572

School based Policing

Small

$0

Drug Abuse Education,

Prevention, and

779

KY

393

Intervention

Small

$0

Larceny/Theft (Non-Motor

780

OK

815

Vehicle)

Small

$0

781

MI

483

School based Policing

Small

$0

Drug Abuse Education,

Prevention, and

782

ME

459

Intervention

Small

$0

783

GA

253

School based Policing

Small

$0

Larceny/Theft (Non-Motor

784

AL

26

Vehicle)

Small

$0

785

TX

992 Building Trust and Respect Small

$0

786

MI

478 Building Trust and Respect Small

$0

Drug Abuse Education,

Prevention, and

787

MO

537

Intervention

Small

$0

788

MN

512

School based Policing

Small

$0

Drug Manufacturing, Drug

789

MS

573

Dealing, Drug Trafficking

Small

$0

Drug Abuse Education,

Prevention, and

790

NJ

682

Intervention

Small

$0

791

KY

395

School based Policing

Small

$0

792

AR

44

Burglary

Small

$0

Youth Crime and

793

MD

441

Delinquency

Small

$0

794

VT

1033

Driver Safety

Other Child and Youth

Safety Focus (please

795

AR

37

specify)

Small Small

$125,000

Funded to Meet State Minimum Requirement

$0

796

MN

516 Building Trust and Respect Small

$0

Drug Abuse Education,

Prevention, and

797

MN

511

Intervention

Small

$0

Child Sexual Predators and

798

PA

839

Internet Safety

Small

$0

Case 2:17-cv-07215-R-JC Document 54-1 Filed 01/12/18 Page 169 of 208 Page ID #:1916

799

OK

822

800

KY

376

801

MA

439

802

OR

832

Drug Abuse Education, Prevention, and Intervention Homicide
School based Policing Youth Crime and Delinquency

Small Small Small
Small

$0

$0

Ineligible/Withdraw

$0

$0

803

TX

804

MP

805

FL

Drug Manufacturing, Drug

980

Dealing, Drug Trafficking

Small

Drug Abuse Education,

Prevention, and

550

Intervention

Small

Protecting Critical

210

Infrastructure Problems

Small

$0
$537,201 $0

Funded to Meet State Minimum Requirement

Drug Manufacturing, Drug

806

AL

33

Dealing, Drug Trafficking

Small

$0

807

IA

271

Burglary

Small

$0

808

OR

826

Social Disorder

Small

$0

Youth Crime and

809

CA

108

Delinquency

Small

$0

810

NY

707

School based Policing

Small

$0

811

TX

959 Building Trust and Respect Small

$0

Protecting Critical

812

MS

565

Infrastructure Problems

Small

$0

Drug Abuse Education,

Prevention, and

813

IN

340

Intervention

Small

$0

814

MI

485

Burglary

Small

$0

Motor Vehicle Theft/Theft

815

MD

443

from Motor Vehicle

Small

$0

816

CT

158

School based Policing

Small

$0

817

FL

230

School based Policing

Small

$0

818

TX

944

Burglary

Small

$0

Drug Manufacturing, Drug

819

MS

571

Dealing, Drug Trafficking

Small

$0

820

TX

995

School based Policing

Small

$0

821

TX

979

School based Policing

Small

$0

Drug Manufacturing, Drug

822

WI

1076

Dealing, Drug Trafficking

Small

$0

Protecting Critical

823

NJ

674

Infrastructure Problems

Small

$0

Drug Abuse Education,

Prevention, and

824

OH

785

Intervention

Small

$0

Case 2:17-cv-07215-R-JC Document 54-1 Filed 01/12/18 Page 170 of 208 Page ID #:1917

825

IL

322 Building Trust and Respect Small

$0

826

NY

731

Robbery

Small

$0

Protecting Critical

827

MO

538

Infrastructure Problems

Small

$0

828

NJ

691

School based Policing

Small

$0

Larceny/Theft (Non-Motor

829

WI

1086

Vehicle)

Small

$0

830

AZ

61

School based Policing

Small

$0

831

NC

600

Traffic Congestion

Small

$0

Drug Abuse Education,

Prevention, and

832

WV

1112

Intervention

Small

$0

833

OK

805

Burglary

Small

$0

834

IN

352

School based Policing

Small

$0

835

GA

254

Burglary

Small

$0

836

PA

850 Building Trust and Respect Small

$0

Drug Abuse Education,

Prevention, and

837

WI

1095

Intervention

Small

$0

Larceny/Theft (Non-Motor

838

WI

1100

Vehicle)

Small

$0

839

SC

899 Building Trust and Respect Small

$0

Other Non-Violent Crime

840

AL

16

Problem (please specify)

Small

$0

Drug Abuse Education,

Prevention, and

841

PA

851

Intervention

Small

$0

842

NY

717

Driver Safety

Small

$0

843

NJ

634 Building Trust and Respect Small

$0

844

MI

465

Burglary

Small

$0

845

MO

531

Quality of Life Problem

Small

$0

846

NJ

665

School based Policing

Small

$0

Drug Abuse Education,

Prevention, and

847

NJ

644

Intervention

Small

$0

848

MN

508

School based Policing

Small

$0

849

AR

54

School based Policing

Small

$0

850

OK

823

School based Policing

Small

$0

Motor Vehicle Theft/Theft

851

OK

803

from Motor Vehicle

Small

$0

Drug Abuse Education,

Prevention, and

852

NC

602

Intervention

Small

$0

Case 2:17-cv-07215-R-JC Document 54-1 Filed 01/12/18 Page 171 of 208 Page ID #:1918

853

WY

854

CA

1117 135

Burglary Drug Abuse Education,
Prevention, and Intervention

Small Small

855

PA

856

IN

857

PR

858

CA

859

OH

860

MA

861

FL

873 Building Trust and Respect Small

Drug Abuse Education,

Prevention, and

343

Intervention

Small

Drug Abuse Education,

Prevention, and

877

Intervention

Small

111

School based Policing

Small

758

Burglary

Small

Protecting Critical

436

Infrastructure Problems

Small

203

Burglary

Small

862

AR

863

AS

864

CT

Motor Vehicle Theft/Theft

53

from Motor Vehicle

Small

Protecting Critical

57

Infrastructure Problems

Small

Drug Abuse Education,

Prevention, and

160

Intervention

Small

865

NY

715 Building Trust and Respect Small

Drug Abuse Education,

Prevention, and

866

WA

1062

Intervention

Small

867

NJ

620 Building Trust and Respect Small

Drug Abuse Education,

Prevention, and

868

WV

1116

Intervention

Small

Youth Crime and

869

NM

696

Delinquency

Small

870

MA

421

School based Policing

Small

871

KY

389

School based Policing

Small

Youth Crime and

872

WV

1111

Delinquency

Small

873

TN

874

NB

875

AZ

876

MA

927 Building Trust and Respect Small

580

Human Trafficking

Small

63

School based Policing

Small

Drug Abuse Education,

Prevention, and

425

Intervention

Small

$125,000

Funded to Meet State Minimum Requirement

$0 $0

$0

$0 $0 $0
$0 $0

$0

0

Ineligible/Withdraw

$0 $0

$0 $0

$0
$0 $0 $0
$0
$0 $0 $0

$0

Case 2:17-cv-07215-R-JC Document 54-1 Filed 01/12/18 Page 172 of 208 Page ID #:1919

877

NJ

878

AR

879

CA

659

Domestic/Family Violence

Small

51

School based Policing

Small

133

School based Policing

Small

880

NC

881

NC

882

IL

883

IL

884

RI

885

SD

590 Building Trust and Respect Small

Drug Abuse Education,

Prevention, and

604

Intervention

Small

335

School based Policing

Small

Larceny/Theft (Non-Motor

311

Vehicle)

Small

884

Driver Safety

Small

Youth Crime and

918

Delinquency

Small

Drug Manufacturing, Drug

886

LA

402

Dealing, Drug Trafficking

Small

887

AR

42

Burglary

Small

Drug Abuse Education,

Prevention, and

888

CO

146

Intervention

Small

Drug Abuse Education,

Prevention, and

889

UT

1003

Intervention

Small

890

AL

891

IL

892

MS

893

TX

27

Domestic/Family Violence

Small

Drug Abuse Education,

Prevention, and

324

Intervention

Small

Drug Abuse Education,

Prevention, and

561

Intervention

Small

Protecting Critical

996

Infrastructure Problems

Small

894

MS

559 Building Trust and Respect Small

Drug Abuse Education,

Prevention, and

895

OH

763

Intervention

Small

Other Traffic/Pedestrian

Safety Problem (please

896

WV

1114

specify)

Small

897

MI

488

Assault

Small

898

SD

919

School based Policing

Small

899

MA

438

School based Policing

Small

900

IL

901

OH

289 Building Trust and Respect Small

Drug Abuse Education,

Prevention, and

790

Intervention

Small

$0 $0 0
$0

$0 $0
$0 $0
$0

$0

$0

Ineligible/Withdraw

$0

$0 $0

$0

$0 0 $0

$0

$0 $0 $0 $0
$0

$0

Case 2:17-cv-07215-R-JC Document 54-1 Filed 01/12/18 Page 173 of 208 Page ID #:1920

Other Traffic/Pedestrian

Safety Problem (please

902

MI

486

specify)

Small

$0

Larceny/Theft (Non-Motor

903

NC

586

Vehicle)

Small

$0

Drug Abuse Education,

Prevention, and

904

NJ

640

Intervention

Small

$0

905

CA

72

Traffic Accidents

Small

$0

906

MN

498 Building Trust and Respect Small

$0

907

OH

786

School based Policing

Small

$0

Drug Abuse Education,

Prevention, and

908

NJ

690

Intervention

Small

$0

Drug Manufacturing, Drug

909

MN

500

Dealing, Drug Trafficking

Small

$0

910

NC

603 Building Trust and Respect Small

$0

911

OH

764

School based Policing

Small

$0

912

OH

753

School based Policing

Small

$0

913

IL

313 Building Trust and Respect Small

$0

914

IL

315 Building Trust and Respect Small

$0

915

ND

610 Building Trust and Respect Small

$0

916

WI

1073 Building Trust and Respect Small

917

IN

361

School based Policing

Small

Drug Abuse Education,

Prevention, and

918

PA

868

Intervention

Small

Drug Abuse Education,

Prevention, and

919

NJ

632

Intervention

Small

920

KY

392

School based Policing

Small

921

NB

584

School based Policing

Small

Drug Abuse Education,

Prevention, and

922

VT

1037

Intervention

Small

Youth Crime and

923

MI

477

Delinquency

Small

924

KS

364

School based Policing

Small

Drug Abuse Education,

Prevention, and

925

WI

1106

Intervention

Small

926

OH

754

School based Policing

Small

927

MI

484

Criminal Gangs

Small

$0 $0

$0

$0 $0 $0
$125,000
$0 $0

Funded to Meet State Minimum Requirement

0

$0

Ineligible/Withdraw

$0

Case 2:17-cv-07215-R-JC Document 54-1 Filed 01/12/18 Page 174 of 208 Page ID #:1921

928

PA

929

NJ

930

IL

931

TN

932

NH

933

AR

934

PA

935

ND

936

TX

937

CO

938

AL

939

AR

Drug Abuse Education,

Prevention, and

871

Intervention

Small

672

School based Policing

Small

307

School based Policing

Small

926

School based Policing

Small

619

Quality of Life Problem

Small

Drug Abuse Education,

Prevention, and

50

Intervention

Small

Drug Abuse Education,

Prevention, and

841

Intervention

Small

611

School based Policing

Small

993

School based Policing

Small

Drug Abuse Education,

Prevention, and

152

Intervention

Small

Larceny/Theft (Non-Motor

12

Vehicle)

Small

Youth Crime and

48

Delinquency

Small

940

ID

286 Building Trust and Respect Small

941

NJ

628

Quality of Life Problem

Small

942

ID

280

School based Policing

Small

Youth Crime and

943

LA

405

Delinquency

Small

944

WI

1078

Drunk Drving

Small

945

NH

615

Quality of Life Problem

Small

946

IA

947

CO

948

MT

949

PA

276

Domestic/Family Violence

Small

139

School based Policing

Small

578

Drunk Drving

Small

Youth Crime and

842

Delinquency

Small

950

WA

1060 Domestic/Family Violence

Small

Drug Abuse Education,

Prevention, and

951

AL

22

Intervention

Small

Youth Crime and

952

NM

695

Delinquency

Small

953

IL

330

School based Policing

Small

954

MS

955

MO

956

OH

Motor Vehicle Theft/Theft

554

from Motor Vehicle

Small

525

School based Policing

Small

751

Burglary

Small

$0 $0 $0 $0 $0

$0

$0 $0 $0

$0

$0

Ineligible/Withdraw

$0

$0 $0 $0

$0 $0 $0

$0

Ineligible/Withdraw

$0

$0

$0

$0

Ineligible/Withdraw

$0

$0

Ineligible/Withdraw

$0

$0 $0 $0

Case 2:17-cv-07215-R-JC Document 54-1 Filed 01/12/18 Page 175 of 208 Page ID #:1922

Other Child and Youth

Safety Focus (please

957

WA

1059

specify)

Other Traffic/Pedestrian

Safety Problem (please

958

FL

172

specify)

Youth Crime and

959

NJ

664

Delinquency

Other Child and Youth

Safety Focus (please

960

OH

788

specify)

961

WI

1104

School based Policing

Small
Small Small
Small Small

962

OH

963

AR

964

OH

965

MN

966

SC

967

CO

968

GA

969

NJ

787

Domestic/Family Violence

Small

Youth Crime and

49

Delinquency

Small

Child Sexual Predators and

757

Internet Safety

Small

515

School based Policing

Small

Other Traffic/Pedestrian

Safety Problem (please

904

specify)

Small

Drug Abuse Education,

Prevention, and

140

Intervention

Small

255

Burglary

Small

627

School based Policing

Small

$0

$0

Ineligible/Withdraw

$0

$0 $0

$0

$0

$0

$0

Ineligible/Withdraw

$0

Ineligible/Withdraw

$0 $0 $0

Drug Manufacturing, Drug

970

WI

1066

Dealing, Drug Trafficking

Small

Protecting Critical

971

MA

432

Infrastructure Problems

Small

Drug Abuse Education,

Prevention, and

972

NY

708

Intervention

Small

973

VA

1017

School based Policing

Small

Drug Abuse Education,

Prevention, and

974

KY

396

Intervention

Small

975

WI

1064

Driver Safety

Small

976

UT

1000

Vandalism

Small

977

WI

1092

Disorderly Activity

Small

978

AL

21

School based Policing

Small

979

MA

426

School based Policing

Small

980

WI

1079 Building Trust and Respect Small

981

MA

423

Driver Safety

Small

982

OH

765

School based Policing

Small

983

FL

214

Vandalism

Small

$0

Ineligible/Withdraw

$0

$0 $0

$0 $0 $0 $0 $0 $0

$0

$0

Ineligible/Withdraw

$0

$0

Ineligible/Withdraw

Case 2:17-cv-07215-R-JC Document 54-1 Filed 01/12/18 Page 176 of 208 Page ID #:1923

984

PA

985

MA

986

ME

987

PA

988

KS

989

OR

Drug Manufacturing, Drug

870

Dealing, Drug Trafficking

Small

Motor Vehicle Theft/Theft

430

from Motor Vehicle

Small

458 Building Trust and Respect Small

861

Driver Safety

Small

Drug Abuse Education,

Prevention, and

363

Intervention

Small

833 Building Trust and Respect Small

990

AK

991

NJ

992

IA

993

MS

994

AK

995

CO

996

KY

997

MS

998

IA

999

AR

1000

NB

1001

OK

1002

TN

1003 MS

1004

WI

1005 MD

1006

AL

1007 MO

1008

WI

1009

IL

1010

NJ

4
636 279 563
5
143 379 555
274
38
579 818 928
562
1068 446
9 528
1065 328
668

Quality of Life Problem Drug Abuse Education,
Prevention, and Intervention Drunk Drving
Quality of Life Problem
Other Violent Crime Problem (please specify)
Building Trust and Respect Burglary
Misdemeanor Crimes
Building Trust and Respect Larceny/Theft (Non-Motor
Vehicle)
Building Trust and Respect School based Policing Burglary Youth Crime and Delinquency
Building Trust and Respect Driver Safety Burglary
School based Policing Drug Abuse Education,
Prevention, and Intervention Burglary
Drug Abuse Education, Prevention, and Intervention

Small
Small Small Small
Small
Small Small Small
Small
Small
Small Small Small
Small
Small Small Small Small
Small Small
Small

$0

Ineligible/Withdraw

$0
$0 $0

$0 $0
$178,882

Ineligible/Withdraw
Funded to Meet State Minimum Requirement

$0 $0 $0
35574
$0 $0 $0
$0
$0
$0 $0 $0
$0
$0 $0 $0 $0

Ineligible/Withdraw Ineligible/Withdraw Funded to Meet State Minimum Requirement
Ineligible/Withdraw
Ineligible/Withdraw Ineligible/Withdraw Ineligible/Withdraw Ineligible/Withdraw

$0

$0

Ineligible/Withdraw

$0

Ineligible/Withdraw

Case 2:17-cv-07215-R-JC Document 54-1 Filed 01/12/18 Page 177 of 208 Page ID #:1924

1011

VT

1012 OH

1013

UT

1014 MS

1015 ME

1016

KY

1017

VA

1018

IA

1019

VA

1020

KY

1021

MI

1022

SC

1023

AR

1024

KS

1025

SC

1026

NY

1027 MS

1028

MI

1029

VA

1036 778
1001 556
455
394 1011
269 1009 388
489 894
52 370 886 721
560 466 1028

School based Policing Traffic Accidents
Child Sexual Predators and Internet Safety Assault
Drug Abuse Education, Prevention, and Intervention
Drug Abuse Education, Prevention, and Intervention
School based Policing Drug Abuse Education,
Prevention, and Intervention
School based Policing Misdemeanor Crimes
Building Trust and Respect School based Policing Drug Abuse Education, Prevention, and Intervention School based Policing School based Policing School based Policing
Building Trust and Respect Quality of Life Problem Burglary

Small Small
Small Small
Small
Small Small
Small Small Small
Small Small
Small Small Small Small
Small Small Small

$93,583 $0
$0 $0

Funded to Meet State Minimum Requirement
Ineligible/Withdraw
Ineligible/Withdraw

$0

$0

Ineligible/Withdraw

$0

Ineligible/Withdraw

$0

$0

$0

Ineligible/Withdraw

$0

Ineligible/Withdraw

$0

$0

$0

Ineligible/Withdraw

$0

Ineligible/Withdraw

$0

Ineligible/Withdraw

$0

Ineligible/Withdraw

$0

Ineligible/Withdraw

$0

Ineligible/Withdraw

Case 2:17-cv-07215-R-JC Document 54-1 Filed 01/12/18 Page 178 of 208 Page ID #:1925

Rank 1 2 3 4 5
6 7 8 9
10
11 12 13 14 15 16 17
18
19 20 21
22
23 24
25 26 27 28
29 30 31 32 33
34 35
36 37 38 39 40 41
42 43 44 45 46

State FL MO AL FL TX
FL TX SD KY
FL
FL TX IL CA LA OH TX
TX
NJ MN VA
SC
CA GM
GA MO MI TN

Identifier 217 548 7 185 958
188 984 914 381
231
219 998 337 100 403 798 999 Laredo, City of
650 503 1029
889
68 267
266 549 491 929

Focus Area

Large/Small

Building Trust and Respect

Large

Homicide

Large

Homicide

Large

Gun Violence

Large

Robbery

Large

Information or Intelligence

Problems

Large

Gun Violence

Large

Assault

Large

Building Trust and Respect

Large

Other Violent Crime Problem

(please specify)

Large

Drug Manufacturing, Drug

Dealing, Drug Trafficking

Large

Assault

Large

Gun Violence

Large

Gun Violence

Large

Assault

Large

Gun Violence

Large

Gun Violence

Large

Illegal Immigration Protecting Critical Infrastructure Problems
Gun Violence Building Trust and Respect Other Violent Crime Problem
(please specify) Other Violent Crime Problem
(please specify) Building Trust and Respect
Protecting Critical Infrastructure Problems
Gun Violence Human Trafficking
Burglary

Large
Large Large Large
Large
Large Large
Large Large Large Large

ICC Certified
No Yes Yes Yes Yes
Yes Yes Yes Yes
Yes
Yes Yes No No Yes No Yes
Yes
Yes No Yes
Yes
No Yes
No No No Yes

Final Score with ICC 205.65 187.40 186.06 176.02 171.76

Award Amount 1,875,000 1,875,000 1,562,711 3,125,000 375,000

170.39 169.89 166.76 166.13

1,875,000 1,875,000 375,000 1,250,000

164.23

3,125,000

163.49 162.45 161.56 159.34 158.64 157.30 156.41

1,875,000 3,125,000 3,125,000 1,875,000 1,009,795 1,875,000 3,125,000

155.59

1,500,000

154.65 154.26 153.56

1,875,000 1,250,000 750,000

152.33

1,000,000

151.26 150.75

1,000,000 1,660,578

149.85 149.69 149.11 148.08

1,875,000 1,875,000 1,848,067 250,000

IN

339

Homicide

KS

373

Gun Violence

TX

957

Robbery

VA 1008

Quality of Life Problem

MI

476

Building Trust and Respect

Other Non-Violent Crime

CA

103

Problem (please specify)

CA

104

Gun Violence

Larceny/Theft (Non-Motor

WA 1049

Vehicle)

DE

164

Gun Violence

OH

770

Gun Violence

AZ

66

Quality of Life Problem

IN

362

Homicide

LA

409

Gun Violence

Protecting Critical

TX

988

Infrastructure Problems

PR

881

Building Trust and Respect

WI 1107

Gun Violence

CA

94

Robbery

FL

182

Building Trust and Respect

Large Large Large Large Large
Large Large
Large Large Large Large Large Large
Large Large Large Large Large

No

147.02

No

146.06

No

145.89

Yes

145.51

No

145.10

Yes

144.24

No

144.23

Yes

143.85

No

143.71

No

143.32

Yes

142.59

No

142.23

No

142.15

Yes

142.13

Yes

140.80

No

140.49

No

140.46

Yes

138.70

875,000 0 0 0 0
0 0
0 0 0 0 0 0
0 0 0 0 0

Notes
Last Large Agency Funded
Ineligible/Withdraw

Case 2:17-cv-07215-R-JC Document 54-1 Filed 01/12/18 Page 179 of 208 Page ID #:1926

47

CA

98

Building Trust and Respect

Large

48

MD 454

Building Trust and Respect

Large

49

NC

595

Misdemeanor Crimes

Large

50

MA

427

Gun Violence

Large

51

OH

769

School based Policing

Large

52

CA

99

Quality of Life Problem

Large

53

FL

183

Burglary

Large

Los

Angeles,

54

CA City of Building Trust and Respect

Large

Protecting Critical

55

NY

730

Infrastructure Problems

Large

56

WI 1071 Building Trust and Respect

Large

57

MI

472

Gun Violence

Large

Drug Abuse Education,

58

OH

789 Prevention, and Intervention Large

59

VA

1031 Building Trust and Respect

Large

60

OH

799

Building Trust and Respect

Large

Other Violent Crime Problem

61

CA

127

(please specify)

Large

62

OH

784

Gun Violence

Large

63

CA

106

Quality of Life Problem

Large

Youth Crime and

64

TX

968

Delinquency

Large

65

OH

797

Building Trust and Respect

Large

66

KS

367

Quality of Life Problem

Large

Other Violent Crime Problem

67

WA 1055

(please specify)

Large

Other Violent Crime Problem

68

FL

177

(please specify)

Large

Protecting Critical

69

PR

876

Infrastructure Problems

Large

70

TN

931 Children Exposed to Violence Large

Drug Manufacturing, Drug

71

CA

118

Dealing, Drug Trafficking

Large

72

FL

224

School based Policing

Large

73

CA

80

School based Policing

Large

74

NY

735

Criminal Gangs

Large

75

CA

124

Building Trust and Respect

Large

Information or Intelligence

76

MD 442

Problems

Large

77

LA

408

Gun Violence

Large

Child Sexual Predators and

78

VA 1010

Internet Safety

Large

79

RI

883

Building Trust and Respect

Large

Drug Manufacturing, Drug

80

CO

144

Dealing, Drug Trafficking

Large

Other Homeland Security

81

DE

163

Problem (please specify)

Large

82

CA

97

School based Policing

Large

Protecting Critical

83

CA

69

Infrastructure Problems

Large

Drug Abuse Education,

84

NY

709 Prevention, and Intervention Large

85

FL

200

Building Trust and Respect

Large

Yes

137.63

No

137.42

No

137.37

No

135.71

Yes

135.54

Yes

135.43

Yes

135.16

0
125,000 0 0 0 0 0

Funded to Meet State Minimum Requirement

No

133.09

0

Yes

132.20

0

No

131.96

0

No

128.89

0

Yes

128.83

0

No

128.64

0

No

128.09

0

No

127.46

0

No

126.90

0

No

126.49

0

No

124.38

0

Yes

122.57

0

No

121.12

0

No

120.47

0

No

119.59

0

No

117.49

0

Yes

117.46

0

No

117.31

0

No

117.01

0

No

115.69

0

No

113.92

0

Yes

113.79

0

No

108.68

0

No

104.44

0

No

104.32

0

No

103.07

0

No

102.66

0

No

101.00

0

No

100.67

0

No

100.60

0

No

100.33

0

No

98.99

0

Case 2:17-cv-07215-R-JC Document 54-1 Filed 01/12/18 Page 180 of 208 Page ID #:1927

86

VA 1015

School based Policing

Large

Drug Abuse Education,

87

GA

248 Prevention, and Intervention Large

Protecting Critical

88

WI 1103

Infrastructure Problems

Large

89

FL

187

Burglary

Large

Drug Manufacturing, Drug

90

PA

865

Dealing, Drug Trafficking

Large

No

95.95

No

92.32

No

88.98

No

83.97

69.75

0

0

0 0

0

Ineligible/Withdraw

Case 2:17-cv-07215-R-JC Document 54-1 Filed 01/12/18 Page 181 of 208 Page ID #:1928

Rank
1
2 3 4 5 6 7 8
9 10
11 12 13 14 15
16
17 18 19 20 21
22
23 24 25 26
27
28
29 30 31 32
33
34
35 36
37
38 39 40
41
42

State
OH
MI NC CT PA OH LA FL
TN MI
AL IL MI OH FL
CA
FL WA FL NJ MI
SC
NY NC AK AR
NY
OH
MO IL FL PA

Identifier
759
492 598 159 854 756 401 201
921 473
15 336 463 742 205
90
171 1043 198 666 494
903
705 593
2 45
733
744
534 297 233 862

Focus Area Drug Manufacturing, Drug Dealing, Drug Trafficking Other Violent Crime Problem
(please specify) Gun Violence Gun Violence Gun Violence Criminal Gangs Gun Violence Gun Violence Drug Manufacturing, Drug Dealing, Drug Trafficking Gun Violence Drug Manufacturing, Drug Dealing, Drug Trafficking Gun Violence Building Trust and Respect Gun Violence Gun Violence Information or Intelligence
Problems Drug Manufacturing, Drug Dealing, Drug Trafficking
Gun Violence Gun Violence
Assault Robbery Drug Manufacturing, Drug Dealing, Drug Trafficking Other Violent Crime Problem (please specify) School based Policing Assault Building Trust and Respect Drug Manufacturing, Drug Dealing, Drug Trafficking Drug Manufacturing, Drug Dealing, Drug Trafficking Drug Manufacturing, Drug Dealing, Drug Trafficking Human Trafficking Assault Robbery

Large/Small
Small
Small Small Small Small Small Small Small
Small Small
Small Small Small Small Small
Small
Small Small Small Small Small
Small
Small Small Small Small
Small
Small
Small Small Small Small

ICC Certified
Yes
Yes Yes Yes Yes Yes Yes Yes
Yes Yes
Yes Yes Yes Yes Yes
Yes
Yes Yes Yes Yes Yes
Yes
Yes Yes Yes Yes
Yes
Yes
Yes Yes Yes Yes

Final Score with ICC
186.02
182.78 181.85 180.55 180.49 179.79 179.45 179.23
178.26 177.49
176.03 175.46 174.80 174.29 173.69
173.26
173.23 173.09 172.27 171.58 170.22
170.06
170.02 169.16 168.43 168.34
167.60
166.98
166.98 166.77 166.59 166.16

Award Amount
375,000
295,462 121,881 1,875,000 125,000 425,164 1,249,999 625,000
746,117 1,375,000
500,000 625,000 125,000 375,000 375,000
125,000
205,280 625,000 771,724 625,000 500,000
244,409
250,000 375,000 125,000 366,232
250,000
250,000
108,733 375,000 462,239 750,000

CA

83 Youth Crime and Delinquency Small

Yes

165.81

250,000

Drug Manufacturing, Drug

CA

107

Dealing, Drug Trafficking

Small

Yes

165.76

250,000

Drug Manufacturing, Drug

GA

259

Dealing, Drug Trafficking

Small

Yes

165.58

500,000

FL

206

Building Trust and Respect

Small

Yes

165.52

1,125,000

CA

128 Children Exposed to Violence Small

Yes

165.44

96,885

Drug Manufacturing, Drug

MN

521

Dealing, Drug Trafficking

Small

Yes

164.64

125,000

MA

412

Gun Violence

Small

Yes

164.59

1,125,000

KY

375

Homicide

Small

Yes

164.55

125,000

Protecting Critical

NJ

631

Infrastructure Problems

Small

Yes

164.51

625,000

Information or Intelligence

TX

966

Problems

Small

Yes

164.42

104,749

Notes

Case 2:17-cv-07215-R-JC Document 54-1 Filed 01/12/18 Page 182 of 208 Page ID #:1929

Drug Manufacturing, Drug

43

OH

794

Dealing, Drug Trafficking

Small

Yes

164.37

112,607

Drug Manufacturing, Drug

44

WI

1090

Dealing, Drug Trafficking

Small

Yes

164.30

125,000

Other Violent Crime Problem

45

WA

1041

(please specify)

Small

Yes

164.06

500,000

Protecting Critical

46

NJ

630

Infrastructure Problems

Small

Yes

163.98

125,000

47

NV

700

Domestic/Family Violence

Small

Yes

163.80

125,000

48

OH

781

Building Trust and Respect

Small

Yes

163.33

1,000,000

49

NC

601

Robbery

Small

Yes

162.97

250,000

50

TX

986

Robbery

Small

Yes

162.41

500,000

51

FL

227

Homicide

Small

Yes

161.96

325,967

52

OK

816

Criminal Gangs

Small

Yes

161.80

250,000

53

CA

88 Youth Crime and Delinquency Small

Yes

161.64

375,000

54

NJ

654

Rape

Small

Yes

161.15

500,000

55

MT

576

Quality of Life Problem

Small

Yes

161.13

125,000

56

IL

293

Building Trust and Respect

Small

Yes

160.69

250,000

Drug Manufacturing, Drug

57

MD

440

Dealing, Drug Trafficking

Small

Yes

160.64

375,000

Drug Manufacturing, Drug

58

PA

869

Dealing, Drug Trafficking

Small

Yes

160.51

125,000

Other Violent Crime Problem

59

CA

74

(please specify)

Small

Yes

160.39

224,247

60

AZ

62

Domestic/Family Violence

Small

Yes

160.32

250,000

Drug Manufacturing, Drug

61

TX

950

Dealing, Drug Trafficking

Small

Yes

160.31

689,440

62

NH

614

Building Trust and Respect

Small

Yes

160.19

250,000

63

GA

242

Criminal Gangs

Small

Yes

160.16

750,000

Drug Abuse Education,

64

MA

415 Prevention, and Intervention Small

Yes

160.11

375,000

Larceny/Theft (Non-Motor

65

WA

1042

Vehicle)

Small

Yes

159.91

250,000

66

DE

162

Assault

Small

Yes

159.91

125,000

Drug Manufacturing, Drug

67

SD

916

Dealing, Drug Trafficking

Small

Yes

159.61

125,000

Drug Abuse Education,

68

NJ

653 Prevention, and Intervention Small

Yes

159.54

500,000

69

FL

228

Robbery

Small

No

159.50

875,000

70

IL

298

Building Trust and Respect

Small

Yes

159.40

250,000

71

TX

964

Building Trust and Respect

Small

Yes

158.77

875,000

72

PA

856

Illegal Immigration

Small

Yes

158.31

125,000

73

NC

592

Building Trust and Respect

Small

Yes

158.28

480,963

74

NC

599

Criminal Gangs

Small

Yes

158.27

500,000

75

FL

216

Robbery

Small

Yes

158.21

375,000

76

GA

247

Burglary

Small

Yes

158.09

250,000

77

GA

241

Criminal Gangs

Small

Yes

157.94

1,375,526

78

WI

1063

School based Policing

Small

Yes

157.83

125,000

79

GA

263

Assault

Small

Yes

157.81

442,919

80

IN

357

Building Trust and Respect

Small

Yes

157.77

500,000

Motor Vehicle Theft/Theft

81

FL

180

from Motor Vehicle

Small

Yes

157.40

500,000

Other Violent Crime Problem

Last Small Agency

82

SC

898

(please specify)

Small

No

157.33

1,250,000

Funded

83

MO

544

Building Trust and Respect

Small

Yes

157.24

0

Protecting Critical

84

AL

29

Infrastructure Problems

Small

Yes

157.21

0

85

MA

428

Assault

Small

Yes

157.19

0

86

WA

1052

Quality of Life Problem

Small

Yes

157.17

0

Case 2:17-cv-07215-R-JC Document 54-1 Filed 01/12/18 Page 183 of 208 Page ID #:1930

Drug Manufacturing, Drug

87

TX

963

Dealing, Drug Trafficking

Small

Yes

156.69

0

Protecting Critical

88

NJ

624

Infrastructure Problems

Small

Yes

156.59

0

89

CA

77

School based Policing

Small

Yes

156.40

0

Other Homeland Security

90

PA

848

Problem (please specify)

Small

Yes

156.38

0

91

NJ

685

School based Policing

Small

Yes

156.27

0

92

MO

524

School based Policing

Small

Yes

156.26

0

Funded to Meet State

Minimum

93

CO

136

Assault

Small

Yes

156.21

500,000

Requirement

Funded to Meet State

Minimum

94

MT

575

School based Policing

Small

Yes

156.21

125,000

Requirement

Larceny/Theft (Non-Motor

95

NJ

645

Vehicle)

Small

Yes

155.98

0

Funded to Meet State

Drug Abuse Education,

Minimum

96

OK

804 Prevention, and Intervention Small

Yes

155.87

99,428

Requirement

Funded to Meet State

Other Violent Crime Problem

Minimum

97

AR

39

(please specify)

Small

Yes

155.83

249,604

Requirement

Drug Abuse Education,

98

OH

791 Prevention, and Intervention Small

Yes

155.78

0

Protecting Critical

99

CA

85

Infrastructure Problems

Small

Yes

155.64

0

Drug Abuse Education,

100

PA

837 Prevention, and Intervention Small

Yes

155.58

0

101

FL

196

Burglary

Small

Yes

155.58

0

Funded to Meet State

Minimum

102

AZ

59

Quality of Life Problem

Small

Yes

155.29

250,000

Requirement

Funded to Meet State

Drug Manufacturing, Drug

Minimum

103

WI

1081

Dealing, Drug Trafficking

Small

No

155.23

250,000

Requirement

Drug Manufacturing, Drug

104

GA

237

Dealing, Drug Trafficking

Small

Yes

155.14

0

Funded to Meet State

Drug Manufacturing, Drug

Minimum

105

NV

698

Dealing, Drug Trafficking

Small

Yes

154.80

125,000

Requirement

Other Homeland Security

106

TX

952

Problem (please specify)

Small

Yes

154.41

0

107

FL

191

Burglary

Small

Yes

154.38

0

Other Homeland Security

108

NY

711

Problem (please specify)

Small

Yes

154.34

0

Drug Manufacturing, Drug

109

NC

597

Dealing, Drug Trafficking

Small

Yes

154.32

0

110

MO

532

Building Trust and Respect

Small

Yes

154.28

0

111

FL

211

Building Trust and Respect

Small

Yes

154.06

0

Other Non-Violent Crime

112

CA

120

Problem (please specify)

Small

Yes

153.96

0

Other Violent Crime Problem

113

GA

252

(please specify)

Small

No

153.89

0

114

MA

437

School based Policing

Small

Yes

153.70

0

115

WA

1047

Burglary

Small

Yes

153.68

0

116

KY

378

Building Trust and Respect

Small

Yes

153.53

0

Funded to Meet State

Minimum

117

PR

878

Robbery

Small

Yes

153.22

137,746

Requirement

Case 2:17-cv-07215-R-JC Document 54-1 Filed 01/12/18 Page 184 of 208 Page ID #:1931

Funded to Meet State

Drug Manufacturing, Drug

Minimum

118

WV

1110

Dealing, Drug Trafficking

Small

Yes

153.20

123,694

Requirement

119

OH

749

Gun Violence

Small

No

153.03

0

120

NJ

626 Youth Crime and Delinquency Small

Yes

152.75

0

121

TX

976

Quality of Life Problem

Small

Yes

152.63

0

Funded to Meet State

Minimum

122

WV

1113

Misdemeanor Crimes

Small

Yes

152.49

250,000

Requirement

Other Homeland Security

123

MI

482

Problem (please specify)

Small

Yes

152.10

0

124

VA

1030

Gun Violence

Small

Yes

152.06

0

Funded to Meet State

Minimum

125

NH

617

School based Policing

Small

Yes

151.91

125,000

Requirement

126

AL

23

Building Trust and Respect

Small

Yes

151.63

0

127

NY

738

School based Policing

Small

Yes

151.58

0

Drug Manufacturing, Drug

128

KY

384

Dealing, Drug Trafficking

Small

Yes

151.49

0

Drug Manufacturing, Drug

129

PA

846

Dealing, Drug Trafficking

Small

Yes

151.43

0

Funded to Meet State

Drug Abuse Education,

Minimum

130

AK

3

Prevention, and Intervention Small

Yes

151.37

125,000

Requirement

131

TX

985

Burglary

Small

Yes

151.37

0

Funded to Meet State

Other Violent Crime Problem

Minimum

132

KS

366

(please specify)

Small

Yes

151.21

500,000

Requirement

133

MN

497

Building Trust and Respect

Small

Yes

151.07

0

134

FL

170

Building Trust and Respect

Small

Yes

151.05

0

Protecting Critical

135

NY

725

Infrastructure Problems

Small

Yes

150.96

0

Funded to Meet State

Drug Abuse Education,

Minimum

136

ME

456 Prevention, and Intervention Small

Yes

150.94

125,000

Requirement

137

AR

47

School based Policing

Small

Yes

150.91

0

138

CA

110

Building Trust and Respect

Small

Yes

150.89

0

Funded to Meet State

Minimum

139

MS

564

Building Trust and Respect

Small

Yes

150.83

318,690

Requirement

140

KY

390

Domestic/Family Violence

Small

Yes

150.82

0

Drug Manufacturing, Drug

141

KY

386

Dealing, Drug Trafficking

Small

Yes

150.78

0

Drug Manufacturing, Drug

142

IN

347

Dealing, Drug Trafficking

Small

Yes

150.72

0

143

WI

1085

Human Trafficking

Small

Yes

150.50

0

Other Traffic/Pedestrian

Safety Problem (please

144

NJ

675

specify)

Small

Yes

150.44

0

145

IL

329

Criminal Gangs

Small

Yes

150.36

0

146

IL

301

Gun Violence

Small

Yes

150.30

0

147

VA

1016

Quality of Life Problem

Small

Yes

150.16

0

148

AL

8

Domestic/Family Violence

Small

Yes

149.98

0

149

IL

333

School based Policing

Small

Yes

149.97

0

150

FL

175

Quality of Life Problem

Small

Yes

149.96

0

151

AL

19

Gun Violence

Small

Yes

149.83

0

Funded to Meet State

Minimum

152

OK

819

Burglary

Small

Yes

149.80

95,569

Requirement

153

SD

910

Domestic/Family Violence

Small

Yes

149.40

0

154

MA

431

School based Policing

Small

Yes

149.37

0

155

PA

844

Quality of Life Problem

Small

Yes

149.29

0

Case 2:17-cv-07215-R-JC Document 54-1 Filed 01/12/18 Page 185 of 208 Page ID #:1932

Funded to Meet State

Minimum

156

ND

607 Youth Crime and Delinquency Small

Yes

149.28

375,000

Requirement

157

CA

89

Domestic/Family Violence

Small

No

149.25

0

158

WI

1083 Building Trust and Respect

Small

Yes

149.23

0

159

MO

546

Human Trafficking

Small

Yes

149.21

0

160

IN

359

Building Trust and Respect

Small

Yes

149.14

0

161

NY

712

School based Policing

Small

Yes

149.12

0

162

FL

229

Building Trust and Respect

Small

Yes

149.08

0

163

AL

34

School based Policing

Small

Yes

149.06

0

164

CT

154

Gun Violence

Small

No

149.00

0

165

TX

945

Driver Safety

Small

No

148.81

0

166

GA

236

Criminal Gangs

Small

Yes

148.79

0

167

KY

380

School based Policing

Small

Yes

148.74

0

168

OH

795

Building Trust and Respect

Small

No

148.57

0

Other Homeland Security

169

WA

1056

Problem (please specify)

Small

Yes

148.52

0

Funded to Meet State

Minimum

170

IA

268

School based Policing

Small

Yes

148.47

125,000

Requirement

Funded to Meet State

Minimum

171

NV

699

Assault

Small

Yes

148.22

125,000

Requirement

172

FL

212

Building Trust and Respect

Small

Yes

148.18

0

Drug Manufacturing, Drug

173

TX

946

Dealing, Drug Trafficking

Small

Yes

148.16

0

Drug Manufacturing, Drug

174

PA

853

Dealing, Drug Trafficking

Small

Yes

148.00

0

175

NJ

678

Assault

Small

No

147.59

0

176

AZ

67

Criminal Gangs

Small

Yes

147.51

0

Funded to Meet State

Drug Manufacturing, Drug

Minimum

177

DE

167

Dealing, Drug Trafficking

Small

Yes

147.40

125,000

Requirement

178

CA

91

Homicide

Small

No

147.38

0

Funded to Meet State

Drug Manufacturing, Drug

Minimum

179

WV

1108

Dealing, Drug Trafficking

Small

Yes

147.27

125,000

Requirement

180

VA

1025

Gun Violence

Small

No

147.21

0

181

FL

190

Gun Violence

Small

No

147.11

0

Drug Abuse Education,

182

OH

776 Prevention, and Intervention Small

Yes

147.00

0

Funded to Meet State

Minimum

183

DE

168

Building Trust and Respect

Small

Yes

146.78

100,651

Requirement

184

FL

169

Gun Violence

Small

Yes

146.74

0

185

AL

6

Assault

Small

No

146.64

0

186

GA

260

Burglary

Small

Yes

146.59

0

Other Violent Crime Problem

187

AL

11

(please specify)

Small

Yes

146.50

0

Funded to Meet State

Minimum

188

UT

1006 Building Trust and Respect

Small

Yes

146.49

125,000

Requirement

Drug Abuse Education,

189

TN

924 Prevention, and Intervention Small

Yes

146.41

0

190

TN

930

School based Policing

Small

Yes

146.37

0

Drug Manufacturing, Drug

191

NY

736

Dealing, Drug Trafficking

Small

Yes

146.28

0

192

LA

399

Gun Violence

Small

No

146.13

0

193

MA

416

Domestic/Family Violence

Small

No

146.08

0

194

OH

767

Disorderly Activity

Small

Yes

146.06

0

Case 2:17-cv-07215-R-JC Document 54-1 Filed 01/12/18 Page 186 of 208 Page ID #:1933

Drug Abuse Education,

195

MA

434 Prevention, and Intervention Small

Yes

146.05

0

196

MN

501

Quality of Life Problem

Small

Yes

145.95

0

197

CA

132

Building Trust and Respect

Small

Yes

145.74

0

198

GA

257

Assault

Small

No

145.67

0

Drug Manufacturing, Drug

199

TN

923

Dealing, Drug Trafficking

Small

No

145.58

0

Larceny/Theft (Non-Motor

200

NJ

676

Vehicle)

Small

Yes

145.37

0

201

PA

863

Building Trust and Respect

Small

Yes

145.25

0

Other Non-Violent Crime

202

VA

1024

Problem (please specify)

Small

Yes

145.25

0

203

CA

115

School based Policing

Small

Yes

145.16

0

Funded to Meet State

Minimum

204

PR

879

Homicide

Small

Yes

145.05

405,581

Requirement

205

NJ

679

Gun Violence

Small

No

144.85

0

206

MO

536

Building Trust and Respect

Small

Yes

144.58

0

Funded to Meet State

Minimum

207

NB

583

Assault

Small

No

144.55

500,000

Requirement

208

OH

773 Youth Crime and Delinquency Small

Yes

144.35

0

Larceny/Theft (Non-Motor

209

CA

117

Vehicle)

Small

Yes

144.27

0

Drug Abuse Education,

210

MA

433 Prevention, and Intervention Small

Yes

144.21

0

211

CA

79

Building Trust and Respect

Small

No

144.19

0

212

NJ

662

Gun Violence

Small

No

144.18

0

213

AR

46

School based Policing

Small

Yes

144.00

0

214

SD

920 Youth Crime and Delinquency Small

Yes

143.97

0

Other Violent Crime Problem

215

PA

857

(please specify)

Small

Yes

143.88

0

Funded to Meet State

Minimum

216

DE

166

Criminal Gangs

Small

Yes

143.86

125,000

Requirement

217

VA

1027

Burglary

Small

Yes

143.83

0

Other Homeland Security

218

WA

1061

Problem (please specify)

Small

Yes

143.71

0

219

IL

318

Building Trust and Respect

Small

Yes

143.66

0

220

MI

467

Gun Violence

Small

No

143.61

0

Drug Abuse Education,

221

NJ

677 Prevention, and Intervention Small

Yes

143.58

0

Funded to Meet State

Minimum

222

MS

553

Criminal Gangs

Small

No

143.54

175,976

Requirement

223

SC

901

Drunk Drving

Small

Yes

143.49

0

Drug Manufacturing, Drug

224

NJ

641

Dealing, Drug Trafficking

Small

Yes

143.48

0

225

TX

981

Robbery

Small

No

143.44

0

Drug Abuse Education,

226

PA

847 Prevention, and Intervention Small

Yes

143.21

0

227

NJ

683

School based Policing

Small

Yes

143.18

0

Drug Abuse Education,

228

OH

747 Prevention, and Intervention Small

Yes

143.14

0

229

CA

102

Gun Violence

Small

Yes

143.11

0

230

NY

729

School based Policing

Small

No

143.07

0

Case 2:17-cv-07215-R-JC Document 54-1 Filed 01/12/18 Page 187 of 208 Page ID #:1934

231

LA

406

Building Trust and Respect

Small

No

143.05

0

Funded to Meet State

Drug Abuse Education,

Minimum

232

OK

814 Prevention, and Intervention Small

No

143.00

69,208

Requirement

233

TN

940

School based Policing

Small

Yes

142.92

0

234

OK

821

Building Trust and Respect

Small

Yes

142.90

0

235

NY

740 Youth Crime and Delinquency Small

Yes

142.88

0

Funded to Meet State

Drug Abuse Education,

Minimum

236

NH

612 Prevention, and Intervention Small

Yes

142.84

125,000

Requirement

237

GA

249

Building Trust and Respect

Small

Yes

142.84

0

Protecting Critical

238

IL

299

Infrastructure Problems

Small

No

142.81

0

239

NJ

661 Youth Crime and Delinquency Small

Yes

142.79

0

Drug Abuse Education,

240

AZ

65 Prevention, and Intervention Small

Yes

142.79

0

241

GA

250 Youth Crime and Delinquency Small

No

142.75

0

242

CA

75

Building Trust and Respect

Small

Yes

142.63

0

Drug Abuse Education,

243

NJ

651 Prevention, and Intervention Small

Yes

142.42

244

CA

114

Quality of Life Problem

Small

142.38

245

TN

939

Criminal Gangs

Small

No

142.38

246

WA

1046

School based Policing

Small

Yes

142.27

0

0

Ineligible/Withdraw

0

0

Drug Abuse Education,

247

PA

859 Prevention, and Intervention Small

Yes

142.17

0

Larceny/Theft (Non-Motor

248

LA

400

Vehicle)

Small

Yes

142.09

0

Drug Manufacturing, Drug

249

IN

344

Dealing, Drug Trafficking

Small

Yes

142.02

0

250

GA

261

Domestic/Family Violence

Small

Yes

141.95

0

Funded to Meet State

Minimum

251

VI

1032

Traffic Congestion

Small

Yes

141.95

586,920

Requirement

252

WA

1048 Building Trust and Respect

Small

Yes

141.87

0

Child Sexual Predators and

253

NJ

629

Internet Safety

Small

Yes

141.83

0

254

FL

173

Building Trust and Respect

Small

No

141.79

0

Other Traffic/Pedestrian

Safety Problem (please

255

MO

529

specify)

Small

Yes

141.69

0

256

NB

582

Criminal Gangs

Small

Yes

141.68

0

Drug Manufacturing, Drug

257

OH

752

Dealing, Drug Trafficking

Small

Yes

141.62

0

Funded to Meet State

Minimum

258

MD

452

Robbery

Small

No

141.61

104,812

Requirement

259

AR

40

Domestic/Family Violence

Small

Yes

141.59

0

260

CA

81

Criminal Gangs

Small

No

141.58

0

261

OH

761

School based Policing

Small

Yes

141.52

0

262

IL

331 Youth Crime and Delinquency Small

No

141.47

0

263

SC

896

Disorderly Activity

Small

No

141.25

0

264

SC

890

Building Trust and Respect

Small

Yes

141.02

0

265

AL

32

Quality of Life Problem

Small

Yes

140.96

0

Drug Manufacturing, Drug

266

NY

716

Dealing, Drug Trafficking

Small

Yes

140.83

0

Case 2:17-cv-07215-R-JC Document 54-1 Filed 01/12/18 Page 188 of 208 Page ID #:1935

Other Homeland Security

267

OH

777

Problem (please specify)

Small

No

140.78

0

Funded to Meet State

Minimum

268

UT

1005

School based Policing

Small

Yes

140.63

125,000

Requirement

269

TX

948

Building Trust and Respect

Small

Yes

140.62

0

270

CA

92

Homicide

Small

No

140.56

0

271

CA

119

Illegal Immigration

Small

No

140.36

0

Drug Manufacturing, Drug

272

OH

748

Dealing, Drug Trafficking

Small

Yes

140.30

0

Drug Abuse Education,

273

MO

527 Prevention, and Intervention Small

Yes

140.20

274

PA

852

Homicide

Small

No

140.16

275

LA

398

Robbery

Small

No

140.11

Other Homeland Security

276

CA

126

Problem (please specify)

Small

140.00

277

NH

618

School based Policing

Small

Yes

139.99

Drug Manufacturing, Drug

278

MN

520

Dealing, Drug Trafficking

Small

No

139.86

279

IN

349

Domestic/Family Violence

Small

No

139.78

Drug Manufacturing, Drug

280

TN

934

Dealing, Drug Trafficking

Small

Yes

139.59

281

NJ

646

Building Trust and Respect

Small

Yes

139.58

282

GA

262

School based Policing

Small

Yes

139.40

Drug Manufacturing, Drug

283

IN

360

Dealing, Drug Trafficking

Small

No

139.40

Other Non-Violent Crime

284

FL

225

Problem (please specify)

Small

No

139.28

0 0 0

0

Ineligible/Withdraw

0

0 0

0 0 0

0

0

Drug Abuse Education,

285

MA

417 Prevention, and Intervention Small

Yes

139.26

0

Protecting Critical

286

NJ

625

Infrastructure Problems

Small

Yes

139.17

0

287

IL

291

Building Trust and Respect

Small

No

139.12

0

288

GA

244

Robbery

Small

No

139.05

0

Other Violent Crime Problem

289

CO

137

(please specify)

Small

No

139.01

0

290

MN

509

Gun Violence

Small

No

138.87

0

291

IL

327

Burglary

Small

Yes

138.87

0

292

OH

771

Drunk Drving

Small

Yes

138.79

0

Funded to Meet State

Minimum

293

ID

281

School based Policing

Small

Yes

138.61

125,000

Requirement

294

TX

965

Building Trust and Respect

Small

Yes

138.26

0

295

KS

372

Burglary

Small

Yes

138.15

0

Child Sexual Predators and

296

WI

1091

Internet Safety

Small

Yes

138.15

0

Funded to Meet State

Other Homeland Security

Minimum

297

NM

694

Problem (please specify)

Small

Yes

137.96

133,338

Requirement

Funded to Meet State

Minimum

298

IA

277

Building Trust and Respect

Small

Yes

137.81

125,000

Requirement

Drug Manufacturing, Drug

299

IN

341

Dealing, Drug Trafficking

Small

Yes

137.69

0

Drug Abuse Education,

300

PA

834 Prevention, and Intervention Small

Yes

137.57

0

301

OH

774

Building Trust and Respect

Small

Yes

137.51

0

302

FL

197

Building Trust and Respect

Small

Yes

137.49

0

Case 2:17-cv-07215-R-JC Document 54-1 Filed 01/12/18 Page 189 of 208 Page ID #:1936

Funded to Meet State

Minimum

303

UT

1004 Building Trust and Respect

Small

No

137.45

250,000

Requirement

Drug Manufacturing, Drug

304

IN

356

Dealing, Drug Trafficking

Small

No

137.33

0

305

AZ

64

School based Policing

Small

Yes

137.30

0

Other Homeland Security

306

CA

87

Problem (please specify)

Small

No

137.28

0

Drug Manufacturing, Drug

307

TX

973

Dealing, Drug Trafficking

Small

No

137.27

0

Protecting Critical

308

NY

710

Infrastructure Problems

Small

No

137.25

0

Drug Manufacturing, Drug

309

PA

855

Dealing, Drug Trafficking

Small

Yes

137.22

0

310

MS

558

Gun Violence

Small

No

136.97

0

Motor Vehicle Theft/Theft

311

TX

956

from Motor Vehicle

Small

Yes

136.97

0

Protecting Critical

312

OK

812

Infrastructure Problems

Small

No

136.80

0

313

CA

122

Gun Violence

Small

No

136.79

0

314

MD

445

School based Policing

Small

No

136.68

0

315

WI

1087 Building Trust and Respect

Small

Yes

136.60

0

316

VA

1021 Building Trust and Respect

Small

Yes

136.58

0

Protecting Critical

317

MD

448

Infrastructure Problems

Small

No

136.52

0

Drug Abuse Education,

318

GA

239 Prevention, and Intervention Small

Yes

136.47

0

Drug Abuse Education,

319

WI

1080 Prevention, and Intervention Small

Yes

136.30

0

Drug Manufacturing, Drug

320

CA

131

Dealing, Drug Trafficking

Small

Yes

136.25

0

Child Sexual Predators and

321

OH

772

Internet Safety

Small

No

136.17

0

322

OH

760

Building Trust and Respect

Small

Yes

136.14

0

Drug Manufacturing, Drug

323

TN

932

Dealing, Drug Trafficking

Small

Yes

135.97

0

324

MS

569

School based Policing

Small

Yes

135.91

0

Other Child and Youth Safety

325

MI

480

Focus (please specify)

Small

Yes

135.84

0

326

OK

807

School based Policing

Small

Yes

135.76

0

327

CT

156

Quality of Life Problem

Small

Yes

135.76

0

328

KY

397 Youth Crime and Delinquency Small

Yes

135.71

0

329

SC

897

Homicide

Small

No

135.39

0

Drug Abuse Education,

330

SD

908 Prevention, and Intervention Small

Yes

135.32

0

331

NJ

657

School based Policing

Small

Yes

135.23

0

Drug Manufacturing, Drug

332

MN

513

Dealing, Drug Trafficking

Small

No

135.10

0

Child Sexual Predators and

333

OK

808

Internet Safety

Small

Yes

135.08

0

334

FL

186 Youth Crime and Delinquency Small

No

134.78

0

335

CA

112

School based Policing

Small

Yes

134.73

0

Drug Abuse Education,

336

IL

296 Prevention, and Intervention Small

Yes

134.66

0

337

PA

836

Misdemeanor Crimes

Small

Yes

134.62

0

Case 2:17-cv-07215-R-JC Document 54-1 Filed 01/12/18 Page 190 of 208 Page ID #:1937

Drug Manufacturing, Drug

338

PA

872

Dealing, Drug Trafficking

Small

Yes

134.54

0

Funded to Meet State

Minimum

339

WY

1119

School based Policing

Small

Yes

134.49

125,000

Requirement

Protecting Critical

340

OH

745

Infrastructure Problems

Small

No

134.43

0

Funded to Meet State

Drug Manufacturing, Drug

Minimum

341

MT

574

Dealing, Drug Trafficking

Small

Yes

134.40

125,000

Requirement

Drug Manufacturing, Drug

342

IN

354

Dealing, Drug Trafficking

Small

No

134.36

0

343

MO

539

Disorderly Activity

Small

Yes

134.29

0

344

TX

961

Gun Violence

Small

No

134.19

0

Drug Manufacturing, Drug

345

NY

706

Dealing, Drug Trafficking

Small

Yes

134.16

0

346

OK

806

Gun Violence

Small

No

134.11

0

347

CO

138

School based Policing

Small

Yes

134.08

0

Drug Manufacturing, Drug

348

TN

925

Dealing, Drug Trafficking

Small

No

134.07

0

Ineligible/Withdraw

349

SD

913

Domestic/Family Violence

Small

Yes

133.91

0

350

NJ

642

Quality of Life Problem

Small

Yes

133.79

0

Drug Manufacturing, Drug

351

IN

342

Dealing, Drug Trafficking

Small

Yes

133.78

0

352

TX

997

Illegal Immigration

Small

No

133.75

0

353

MS

557

Homicide

Small

No

133.73

0

354

IL

302

Domestic/Family Violence

Small

No

133.67

0

Drug Abuse Education,

355

IN

348 Prevention, and Intervention Small

Yes

133.65

0

356

TX

967

Traffic Congestion

Small

Yes

133.46

0

Drug Abuse Education,

357

FL

209 Prevention, and Intervention Small

Yes

133.24

0

Drug Abuse Education,

358

NJ

680 Prevention, and Intervention Small

Yes

133.21

0

359

MN

510

Burglary

Small

Yes

133.19

0

Drug Abuse Education,

360

CO

142 Prevention, and Intervention Small

Yes

133.14

0

Protecting Critical

361

NJ

669

Infrastructure Problems

Small

No

133.05

0

Drug Abuse Education,

362

IN

345 Prevention, and Intervention Small

Yes

133.01

0

363

CA

95 Youth Crime and Delinquency Small

No

132.98

0

364

MI

464

Misdemeanor Crimes

Small

Yes

132.93

0

365

NJ

649 Youth Crime and Delinquency Small

Yes

132.93

0

366

AL

20

Burglary

Small

Yes

132.75

0

367

AZ

58

School based Policing

Small

Yes

132.68

0

Funded to Meet State

Drug Abuse Education,

Minimum

368

AS

56 Prevention, and Intervention Small

Yes

132.62

556,118

Requirement

Funded to Meet State

Minimum

369

IA

270

Building Trust and Respect

Small

Yes

132.62

125,000

Requirement

370

MA

435

Building Trust and Respect

Small

Yes

132.54

0

371

CO

147

School based Policing

Small

Yes

132.36

0

Case 2:17-cv-07215-R-JC Document 54-1 Filed 01/12/18 Page 191 of 208 Page ID #:1938

Drug Abuse Education,

372

NY

701 Prevention, and Intervention Small

Yes

132.34

0

373

FL

176

Quality of Life Problem

Small

No

132.22

0

374

MD

449

Robbery

Small

No

132.14

0

Motor Vehicle Theft/Theft

375

NC

594

from Motor Vehicle

Small

No

132.07

0

376

NY

723

Gun Violence

Small

No

132.05

0

377

CA

84

Building Trust and Respect

Small

No

132.05

0

Larceny/Theft (Non-Motor

378

GA

246

Vehicle)

Small

Yes

132.01

0

Drug Manufacturing, Drug

379

AR

43

Dealing, Drug Trafficking

Small

Yes

131.98

0

Drug Manufacturing, Drug

380

PA

864

Dealing, Drug Trafficking

Small

No

131.96

0

381

TX

971

School based Policing

Small

No

131.87

0

Larceny/Theft (Non-Motor

382

IL

300

Vehicle)

Small

Yes

131.87

0

383

MS

566

Burglary

Small

Yes

131.84

0

Other Non-Violent Crime

384

SC

887

Problem (please specify)

Small

No

131.72

0

Funded to Meet State

Minimum

385

IA

275

Quality of Life Problem

Small

Yes

131.71

125,000

Requirement

Child Sexual Predators and

386

MI

475

Internet Safety

Small

Yes

131.65

0

387

PA

858

Building Trust and Respect

Small

Yes

131.62

0

388

NY

719

School based Policing

Small

Yes

131.62

0

389

KS

369

Misdemeanor Crimes

Small

Yes

131.47

0

Drug Abuse Education,

390

WI

1102 Prevention, and Intervention Small

Yes

131.42

0

391

NJ

648

Gun Violence

Small

No

131.08

0

Funded to Meet State

Minimum

392

OR

824

Quality of Life Problem

Small

Yes

130.99

125,000

Requirement

393

FL

195

Burglary

Small

No

130.98

0

394

KY

391

Quality of Life Problem

Small

No

130.97

0

Drug Manufacturing, Drug

395

CT

155

Dealing, Drug Trafficking

Small

No

130.96

0

396

FL

221

School based Policing

Small

No

130.94

0

397

WI

1099

Rape

Small

No

130.88

0

398

MN

518

Human Trafficking

Small

No

130.82

0

Motor Vehicle Theft/Theft

399

TX

975

from Motor Vehicle

Small

Yes

130.80

0

400

IL

314

School based Policing

Small

Yes

130.80

0

401

LA

404

Burglary

Small

No

130.79

0

402

OK

800 Children Exposed to Violence Small

No

130.69

0

403

OH

782

Building Trust and Respect

Small

Yes

130.69

0

404

OK

810

Driver Safety

Small

Yes

130.59

0

405

WA

1058 Building Trust and Respect

Small

Yes

130.53

0

406

NJ

667 Youth Crime and Delinquency Small

Yes

130.49

0

Drug Manufacturing, Drug

407

TX

982

Dealing, Drug Trafficking

Small

No

130.31

0

Funded to Meet State

Drug Abuse Education,

Minimum

408

ID

284 Prevention, and Intervention Small

Yes

130.15

112,051

Requirement

Drug Abuse Education,

409

OH

779 Prevention, and Intervention Small

No

130.03

0

410

TX

970

Criminal Gangs

Small

No

130.02

0

Case 2:17-cv-07215-R-JC Document 54-1 Filed 01/12/18 Page 192 of 208 Page ID #:1939

Drug Abuse Education,

411

NC

588 Prevention, and Intervention Small

Yes

129.92

0

412

CA

93

School based Policing

Small

No

129.84

0

Drug Abuse Education,

413

NC

605 Prevention, and Intervention Small

Yes

129.70

0

Motor Vehicle Theft/Theft

414

GA

251

from Motor Vehicle

Small

No

129.64

0

Drug Abuse Education,

415

OH

783 Prevention, and Intervention Small

Yes

129.56

0

Drug Abuse Education,

416

NJ

623 Prevention, and Intervention Small

No

129.51

0

417

CA

71

Building Trust and Respect

Small

Yes

129.35

0

418

KS

368

School based Policing

Small

Yes

129.26

0

Funded to Meet State

Minimum

419

OR

827

Quality of Life Problem

Small

No

129.20

250,000

Requirement

420

TX

953 Youth Crime and Delinquency Small

No

129.06

0

Drug Abuse Education,

421

WA

1040 Prevention, and Intervention Small

No

129.03

0

422

VA

1014 Building Trust and Respect

Small

Yes

129.00

0

Funded to Meet State

Minimum

423

OR

829

Building Trust and Respect

Small

No

128.88

125,000

Requirement

424

IL

306

Traffic Accidents

Small

Yes

128.83

0

425

AZ

60

Robbery

Small

No

128.79

0

426

LA

407 Youth Crime and Delinquency Small

Yes

128.77

0

427

FL

223 Youth Crime and Delinquency Small

No

128.69

0

Drug Abuse Education,

428

NJ

681 Prevention, and Intervention Small

Yes

128.58

0

Drug Manufacturing, Drug

429

NJ

647

Dealing, Drug Trafficking

Small

No

128.57

0

430

CO

148

Quality of Life Problem

Small

No

128.54

0

Larceny/Theft (Non-Motor

431

SD

906

Vehicle)

Small

Yes

128.49

0

432

SD

915

Quality of Life Problem

Small

Yes

128.46

0

433

KY

383

Building Trust and Respect

Small

No

128.37

0

Other Traffic/Pedestrian

Safety Problem (please

434

WV

1109

specify)

Small

Yes

128.35

0

435

WA

1051

Traffic Accidents

Small

Yes

128.23

0

Drug Abuse Education,

436

MD

444 Prevention, and Intervention Small

Yes

128.22

0

437

WA

1050

School based Policing

Small

Yes

128.10

0

438

NJ

686

Building Trust and Respect

Small

No

128.07

0

Other Violent Crime Problem

439

WA

1044

(please specify)

Small

No

128.01

0

440

NJ

673

Domestic/Family Violence

Small

Yes

127.93

0

441

WI

1098

Burglary

Small

Yes

127.92

0

442

WI

1077 Youth Crime and Delinquency Small

127.90

Other Homeland Security

443

TX

951

Problem (please specify)

Small

Yes

127.85

0

Ineligible/Withdraw

0

Case 2:17-cv-07215-R-JC Document 54-1 Filed 01/12/18 Page 193 of 208 Page ID #:1940

Drug Manufacturing, Drug

444

CA

129

Dealing, Drug Trafficking

Small

No

127.82

0

445

IN

338

Building Trust and Respect

Small

Yes

127.75

0

446

MI

481

School based Policing

Small

Yes

127.68

0

Funded to Meet State

Minimum

447

RI

885

School based Policing

Small

No

127.68

500,000

Requirement

448

OH

750

Fraud

Small

Yes

127.46

0

Drug Abuse Education,

449

KY

377 Prevention, and Intervention Small

Yes

127.46

0

450

CA

70

School based Policing

Small

Yes

127.42

0

451

SC

892

Building Trust and Respect

Small

No

127.35

0

Protecting Critical

452

FL

220

Infrastructure Problems

Small

No

127.32

0

Funded to Meet State

Drug Manufacturing, Drug

Minimum

453

AK

1

Dealing, Drug Trafficking

Small

No

127.27

125,000

Requirement

454

CO

151

Burglary

Small

Yes

127.23

0

455

AL

31

Building Trust and Respect

Small

Yes

127.14

0

456

OH

755

Driver Safety

Small

No

127.00

0

Other Violent Crime Problem

457

TX

974

(please specify)

Small

No

126.97

0

458

AL

25

Burglary

Small

Yes

126.83

0

Drug Abuse Education,

459

MN

505 Prevention, and Intervention Small

No

126.80

0

Information or Intelligence

460

CO

149

Problems

Small

No

126.79

0

461

IL

317

School based Policing

Small

Yes

126.76

0

462

AR

36

Vandalism

Small

Yes

126.70

0

463

RI

882

School based Policing

Small

Yes

126.64

0

464

WI

1075 Domestic/Family Violence

Small

No

126.58

0

465

VA

1023 Building Trust and Respect

Small

No

126.55

0

466

PA

845

Domestic/Family Violence

Small

No

126.46

0

467

MI

469

Burglary

Small

No

126.37

0

Drug Abuse Education,

468

MN

504 Prevention, and Intervention Small

126.29

Drug Manufacturing, Drug

469

NC

596

Dealing, Drug Trafficking

Small

No

126.16

470

FL

179

Traffic Accidents

Small

No

126.12

471

NC

585

Burglary

Small

Yes

126.02

0

Ineligible/Withdraw

0 0 0

Drug Abuse Education,

472

SD

917 Prevention, and Intervention Small

No

125.89

0

Drug Abuse Education,

473

PA

849 Prevention, and Intervention Small

No

125.65

0

474

TX

947

Building Trust and Respect

Small

No

125.60

0

475

IN

350

Building Trust and Respect

Small

Yes

125.55

0

Motor Vehicle Theft/Theft

476

TN

938

from Motor Vehicle

Small

Yes

125.53

0

Drug Manufacturing, Drug

477

PA

860

Dealing, Drug Trafficking

Small

Yes

125.47

0

478

MN

499

School based Policing

Small

Yes

125.47

0

479

TX

960

School based Policing

Small

No

125.45

0

Drug Abuse Education,

480

CA

109 Prevention, and Intervention Small

No

125.45

0

481

TX

991

Building Trust and Respect

Small

No

125.45

0

482

NY

727

Quality of Life Problem

Small

No

125.40

0

483

PA

875

School based Policing

Small

No

125.37

0

Case 2:17-cv-07215-R-JC Document 54-1 Filed 01/12/18 Page 194 of 208 Page ID #:1941

484

FL

218

Rape

Small

No

125.36

0

485

IL

319

Building Trust and Respect

Small

Yes

125.35

0

486

GA

264

School based Policing

Small

No

125.25

0

487

AL

10

School based Policing

Small

Yes

125.25

0

488

NC

589

Burglary

Small

No

125.23

0

489

MD

453

Domestic/Family Violence

Small

No

125.21

0

Larceny/Theft (Non-Motor

490

OH

768

Vehicle)

Small

Yes

125.08

0

491

IL

312

Building Trust and Respect

Small

No

125.08

0

492

FL

181

Burglary

Small

No

125.06

0

Other Violent Crime Problem

493

NY

704

(please specify)

Small

No

124.98

0

494

VA

1026 Building Trust and Respect

Small

No

124.94

0

Drug Manufacturing, Drug

495

KY

385

Dealing, Drug Trafficking

Small

No

124.92

0

Drug Abuse Education,

496

OK

817 Prevention, and Intervention Small

No

124.87

0

Drug Abuse Education,

497

MA

418 Prevention, and Intervention Small

No

124.86

0

498

IL

316

Building Trust and Respect

Small

No

124.70

0

499

NY

728

Building Trust and Respect

Small

Yes

124.57

0

Drug Abuse Education,

500

NH

613 Prevention, and Intervention Small

Yes

124.55

0

Drug Manufacturing, Drug

501

PA

838

Dealing, Drug Trafficking

Small

No

124.51

0

Child Sexual Predators and

502

WI

1101

Internet Safety

Small

Yes

124.45

0

Drug Manufacturing, Drug

503

NY

732

Dealing, Drug Trafficking

Small

Yes

124.38

0

Drug Abuse Education,

504

NH

616 Prevention, and Intervention Small

Yes

124.13

0

505

CA

134

Quality of Life Problem

Small

No

124.13

0

506

MD

451

Building Trust and Respect

Small

No

124.01

0

507

IL

295

Assault

Small

No

123.99

0

508

CA

82

Criminal Gangs

Small

No

123.98

0

Larceny/Theft (Non-Motor

509

TX

969

Vehicle)

Small

No

123.86

0

510

WI

1082

Human Trafficking

Small

No

123.86

0

Drug Manufacturing, Drug

511

PR

880

Dealing, Drug Trafficking

Small

No

123.81

0

512

CO

150 Youth Crime and Delinquency Small

Yes

123.78

0

513

WA

1038

School based Policing

Small

Yes

123.73

0

Drug Abuse Education,

514

MI

471 Prevention, and Intervention Small

No

123.70

0

Protecting Critical

515

AL

17

Infrastructure Problems

Small

Yes

123.63

0

Drug Abuse Education,

516

NY

726 Prevention, and Intervention Small

Yes

123.58

0

517

MO

535 Youth Crime and Delinquency Small

Yes

123.58

0

Drug Abuse Education,

518

NJ

652 Prevention, and Intervention Small

Yes

123.57

0

519

TX

977

Building Trust and Respect

Small

Yes

123.53

0

Case 2:17-cv-07215-R-JC Document 54-1 Filed 01/12/18 Page 195 of 208 Page ID #:1942

Funded to Meet State

Minimum

520

ME

460

Domestic/Family Violence

Small

Yes

123.50

250,000

Requirement

521

SD

911

School based Policing

Small

Yes

123.38

0

Drug Abuse Education,

522

MA

413 Prevention, and Intervention Small

No

123.35

0

523

FL

232

Driver Safety

Small

Yes

123.35

0

524

WA

1054

Quality of Life Problem

Small

No

123.32

0

Drug Manufacturing, Drug

525

MS

568

Dealing, Drug Trafficking

Small

Yes

123.26

0

526

WA

1053

School based Policing

Small

Yes

123.20

0

527

FL

192

Illegal Immigration

Small

No

123.18

0

Drug Abuse Education,

528

FL

208 Prevention, and Intervention Small

No

122.97

0

529

WI

1097 Building Trust and Respect

Small

Yes

122.97

0

530

IL

288

Assault

Small

No

122.96

0

531

TN

933

Building Trust and Respect

Small

No

122.90

0

Other Traffic/Pedestrian

Safety Problem (please

532

FL

234

specify)

Small

No

122.69

0

533

IL

304

School based Policing

Small

Yes

122.56

0

534

CA

130

Criminal Gangs

Small

No

122.50

0

535

MD

447

School based Policing

Small

No

122.21

0

536

GA

256

Building Trust and Respect

Small

No

122.21

0

537

NY

714

School based Policing

Small

No

122.12

0

538

MO

526

Building Trust and Respect

Small

Yes

122.10

0

Funded to Meet State

Minimum

539

ID

283

Quality of Life Problem

Small

No

122.09

250,000

Requirement

540

NJ

643

Building Trust and Respect

Small

No

122.06

0

Other Homeland Security

541

NY

702

Problem (please specify)

Small

Yes

122.04

0

542

TX

994

Building Trust and Respect

Small

Yes

122.03

0

Drug Abuse Education,

543

WI

1074 Prevention, and Intervention Small

Yes

121.81

0

544

MI

468

Fraud

Small

Yes

121.79

0

Drug Abuse Education,

545

KY

393 Prevention, and Intervention Small

Yes

121.72

0

546

MI

483

School based Policing

Small

Yes

121.71

0

Funded to Meet State

Drug Abuse Education,

Minimum

547

ME

459 Prevention, and Intervention Small

Yes

121.69

125,000

Requirement

548

GA

253

School based Policing

Small

Yes

121.62

0

549

CA

101

School based Policing

Small

No

121.61

0

550

MN

512

School based Policing

Small

Yes

121.49

0

Drug Abuse Education,

551

NJ

682 Prevention, and Intervention Small

Yes

121.39

0

552

AR

44

Burglary

Small

Yes

121.26

0

553

MD

441 Youth Crime and Delinquency Small

Yes

121.26

0

Funded to Meet State

Minimum

554

VT

1033

Driver Safety

Small

Yes

121.15

125,000

Requirement

555

FL

189

Building Trust and Respect

Small

No

121.14

0

Other Non-Violent Crime

556

FL

178

Problem (please specify)

Small

No

121.14

0

Case 2:17-cv-07215-R-JC Document 54-1 Filed 01/12/18 Page 196 of 208 Page ID #:1943

Drug Abuse Education,

557

MN

511 Prevention, and Intervention Small

Yes

121.01

0

558

IL

292

Robbery

Small

No

120.94

0

Drug Abuse Education,

559

OK

822 Prevention, and Intervention Small

Yes

120.92

0

560

MA

439

School based Policing

Small

Yes

120.85

0

Drug Manufacturing, Drug

561

FL

213

Dealing, Drug Trafficking

Small

No

120.77

0

Drug Abuse Education,

562

PA

835 Prevention, and Intervention Small

No

120.75

0

Drug Manufacturing, Drug

563

TX

980

Dealing, Drug Trafficking

Small

Yes

120.69

0

Other Non-Violent Crime

564

MO

523

Problem (please specify)

Small

No

120.58

0

Larceny/Theft (Non-Motor

565

MI

496

Vehicle)

Small

No

120.56

0

Funded to Meet State

Drug Abuse Education,

Minimum

566

MP

550 Prevention, and Intervention Small

Yes

120.51

537,201

Requirement

Protecting Critical

567

NY

713

Infrastructure Problems

Small

No

120.39

0

Motor Vehicle Theft/Theft

568

AL

28

from Motor Vehicle

Small

No

120.07

0

569

NJ

638

Building Trust and Respect

Small

No

120.00

0

570

CA

108 Youth Crime and Delinquency Small

Yes

119.96

0

571

NY

707

School based Policing

Small

Yes

119.92

0

572

TX

959

Building Trust and Respect

Small

Yes

119.91

0

573

MI

487 Youth Crime and Delinquency Small

No

119.83

0

Protecting Critical

574

MS

565

Infrastructure Problems

Small

Yes

119.79

0

Drug Abuse Education,

575

IN

340 Prevention, and Intervention Small

Yes

119.75

0

576

MI

485

Burglary

Small

Yes

119.71

0

577

NJ

656

Building Trust and Respect

Small

No

119.61

0

578

CA

121

Homicide

Small

No

119.45

0

Drug Manufacturing, Drug

579

VA

1013

Dealing, Drug Trafficking

Small

No

119.41

0

Drug Abuse Education,

580

NJ

671 Prevention, and Intervention Small

No

119.31

0

Drug Manufacturing, Drug

581

WI

1076

Dealing, Drug Trafficking

Small

Yes

119.15

0

582

CO

145

School based Policing

Small

No

119.14

0

Drug Manufacturing, Drug

583

WI

1094

Dealing, Drug Trafficking

Small

No

119.06

0

Protecting Critical

584

NJ

674

Infrastructure Problems

Small

Yes

118.96

0

Protecting Critical

585

MO

538

Infrastructure Problems

Small

Yes

118.82

0

586

SC

891 Youth Crime and Delinquency Small

No

118.77

0

587

MD

450

Building Trust and Respect

Small

No

118.63

0

588

SC

900

Building Trust and Respect

Small

No

118.62

0

Other Violent Crime Problem

589

NJ

639

(please specify)

Small

No

118.56

0

590

AZ

61

School based Policing

Small

Yes

118.45

0

Case 2:17-cv-07215-R-JC Document 54-1 Filed 01/12/18 Page 197 of 208 Page ID #:1944

Funded to Meet State

Minimum

591

ND

606

Building Trust and Respect

Small

No

118.39

125,000

Requirement

592

NC

600

Traffic Congestion

Small

Yes

118.37

0

593

WV

1115

Misdemeanor Crimes

Small

No

118.37

0

594

OK

805

Burglary

Small

Yes

118.37

0

Drug Abuse Education,

595

PA

866 Prevention, and Intervention Small

No

118.36

0

596

CA

96

Social Disorder

Small

No

118.31

0

597

IN

352

School based Policing

Small

Yes

118.30

0

598

NJ

622

Building Trust and Respect

Small

No

118.29

0

Child Sexual Predators and

599

SC

893

Internet Safety

Small

No

118.24

0

600

PA

850

Building Trust and Respect

Small

Yes

118.15

0

Drug Manufacturing, Drug

601

OH

780

Dealing, Drug Trafficking

Small

No

118.09

0

Motor Vehicle Theft/Theft

602

FL

215

from Motor Vehicle

Small

No

118.02

0

Larceny/Theft (Non-Motor

603

WI

1100

Vehicle)

Small

Yes

117.95

0

604

UT

1007

School based Policing

Small

No

117.91

0

Other Non-Violent Crime

605

AL

16

Problem (please specify)

Small

Yes

117.85

0

606

GA

235

School based Policing

Small

No

117.78

0

Drug Abuse Education,

607

PA

851 Prevention, and Intervention Small

Yes

117.78

0

Drug Abuse Education,

608

NC

587 Prevention, and Intervention Small

No

117.75

0

Other Violent Crime Problem

609

IL

287

(please specify)

Small

No

117.75

0

610

OK

802

School based Policing

Small

No

117.72

0

611

ME

461

School based Policing

Small

No

117.53

0

612

NJ

634

Building Trust and Respect

Small

Yes

117.51

0

613

WI

1088 Building Trust and Respect

Small

No

117.44

0

614

MO

531

Quality of Life Problem

Small

Yes

117.44

0

615

NJ

665

School based Policing

Small

Yes

117.21

0

Drug Abuse Education,

616

NJ

644 Prevention, and Intervention Small

Yes

117.21

0

617

MN

508

School based Policing

Small

Yes

117.17

0

618

FL

226

School based Policing

Small

No

117.13

0

619

NC

591 Youth Crime and Delinquency Small

No

117.11

0

620

OK

823

School based Policing

Small

Yes

117.08

0

Motor Vehicle Theft/Theft

621

OK

803

from Motor Vehicle

Small

Yes

117.04

0

Drug Abuse Education,

622

NC

602 Prevention, and Intervention Small

Yes

117.01

0

Funded to Meet State

Minimum

623

WY

1117

Burglary

Small

Yes

116.92

125,000

Requirement

624

OK

801

School based Policing

Small

No

116.90

0

625

FL

194

Robbery

Small

No

116.76

0

626

NJ

658

Building Trust and Respect

Small

No

116.62

0

Drug Manufacturing, Drug

627

OH

746

Dealing, Drug Trafficking

Small

No

116.62

0

Funded to Meet State

Minimum

628

NM

697

Burglary

Small

No

116.60

250,000

Requirement

Case 2:17-cv-07215-R-JC Document 54-1 Filed 01/12/18 Page 198 of 208 Page ID #:1945

Drug Abuse Education,

629

CA

135 Prevention, and Intervention Small

Yes

116.60

0

630

PA

873

Building Trust and Respect

Small

Yes

116.59

0

Child Sexual Predators and

631

CA

123

Internet Safety

Small

No

116.47

0

632

IN

355 Youth Crime and Delinquency Small

No

116.41

0

Drug Abuse Education,

633

PR

877 Prevention, and Intervention Small

Yes

116.25

0

634

CA

111

School based Policing

Small

Yes

116.25

0

635

OH

758

Burglary

Small

Yes

116.18

0

636

PA

867

School based Policing

Small

No

116.17

0

Other Homeland Security

637

NY

741

Problem (please specify)

Small

No

116.13

0

638

IL

305

Building Trust and Respect

Small

No

116.12

0

Protecting Critical

639

MA

436

Infrastructure Problems

Small

Yes

115.98

0

Drug Manufacturing, Drug

640

MO

541

Dealing, Drug Trafficking

Small

No

115.97

0

641

FL

203

Burglary

Small

Yes

115.89

0

642

VA

1019 Building Trust and Respect

Small

No

115.87

0

643

OR

825

School based Policing

Small

No

115.84

0

644

MS

570

Gun Violence

Small

No

115.83

0

645

NY

715

Building Trust and Respect

Small

Yes

115.67

0

Drug Abuse Education,

646

TN

936 Prevention, and Intervention Small

No

115.65

0

647

WA

1039

School based Policing

Small

No

115.52

0

648

OK

809

Illegal Immigration

Small

No

115.52

0

649

CT

157

Building Trust and Respect

Small

No

115.47

0

650

MO

545

School based Policing

Small

No

115.43

0

Drug Abuse Education,

651

IL

332 Prevention, and Intervention Small

No

115.36

0

Drug Abuse Education,

652

WA

1062 Prevention, and Intervention Small

Yes

115.31

0

653

AL

24

Gun Violence

Small

No

115.30

0

654

NJ

620

Building Trust and Respect

Small

Yes

115.05

0

Drug Manufacturing, Drug

655

IL

325

Dealing, Drug Trafficking

Small

No

114.71

0

Drug Abuse Education,

656

WV

1116 Prevention, and Intervention Small

Yes

114.68

0

657

FL

184

Driver Safety

Small

No

114.62

0

658

NJ

660 Youth Crime and Delinquency Small

No

114.57

0

659

MA

429

Building Trust and Respect

Small

No

114.53

0

660

WV

1111 Youth Crime and Delinquency Small

Yes

114.43

0

Funded to Meet State

Drug Manufacturing, Drug

Minimum

661

ID

285

Dealing, Drug Trafficking

Small

No

114.42

125,000

Requirement

662

TN

927

Building Trust and Respect

Small

Yes

114.40

0

663

NB

580

Human Trafficking

Small

Yes

114.38

0

664

MI

493

Human Trafficking

Small

No

114.37

0

665

NB

581

Domestic/Family Violence

Small

No

114.37

0

666

AZ

63

School based Policing

Small

Yes

114.33

0

Drug Abuse Education,

667

MA

425 Prevention, and Intervention Small

Yes

114.30

0

Case 2:17-cv-07215-R-JC Document 54-1 Filed 01/12/18 Page 199 of 208 Page ID #:1946

668

MN

519 Children Exposed to Violence Small

No

114.28

0

Motor Vehicle Theft/Theft

669

CA

78

from Motor Vehicle

Small

No

114.27

0

Drug Abuse Education,

670

NJ

670 Prevention, and Intervention Small

No

114.25

0

671

IL

290

Building Trust and Respect

Small

No

114.22

0

Other Violent Crime Problem

672

SD

907

(please specify)

Small

No

114.14

0

673

AR

51

School based Policing

Small

Yes

114.05

0

Drug Manufacturing, Drug

674

MI

462

Dealing, Drug Trafficking

Small

No

113.99

0

Drug Abuse Education,

675

NC

604 Prevention, and Intervention Small

Yes

113.97

0

Drug Manufacturing, Drug

676

NY

734

Dealing, Drug Trafficking

Small

No

113.95

0

Larceny/Theft (Non-Motor

677

IL

311

Vehicle)

Small

Yes

113.91

0

Motor Vehicle Theft/Theft

678

TN

943

from Motor Vehicle

Small

No

113.84

0

679

RI

884

Driver Safety

Small

Yes

113.80

0

Drug Abuse Education,

680

AL

14 Prevention, and Intervention Small

No

113.74

0

Protecting Critical

681

NJ

621

Infrastructure Problems

Small

No

113.74

0

682

MI

479

Assault

Small

No

113.67

0

Drug Manufacturing, Drug

683

LA

402

Dealing, Drug Trafficking

Small

Yes

113.54

0

Drug Abuse Education,

684

SD

905 Prevention, and Intervention Small

No

113.42

0

685

MA

414

School based Policing

Small

No

113.39

0

686

MA

422

Building Trust and Respect

Small

No

113.37

0

687

IL

294

Gun Violence

Small

No

113.37

0

688

OR

831

School based Policing

Small

No

113.33

0

689

AL

27

Domestic/Family Violence

Small

Yes

113.17

0

690

MN

506

School based Policing

Small

No

113.02

0

Protecting Critical

691

TX

996

Infrastructure Problems

Small

Yes

112.92

0

692

MS

559

Building Trust and Respect

Small

Yes

112.87

0

Drug Abuse Education,

693

OH

763 Prevention, and Intervention Small

Yes

112.68

0

694

CA

105

Building Trust and Respect

Small

No

112.57

0

695

NJ

635

Burglary

Small

No

112.55

0

696

WI

1069

School based Policing

Small

No

112.54

0

Drug Abuse Education,

697

OR

828 Prevention, and Intervention Small

No

112.45

0

698

SD

919

School based Policing

Small

Yes

112.37

0

Motor Vehicle Theft/Theft

699

GA

240

from Motor Vehicle

Small

No

112.36

0

Drug Abuse Education,

700

IN

358 Prevention, and Intervention Small

No

112.31

0

Funded to Meet State

Minimum

701

DE

165

School based Policing

Small

No

112.30

125,000

Requirement

702

FL

202 Youth Crime and Delinquency Small

No

112.30

0

Case 2:17-cv-07215-R-JC Document 54-1 Filed 01/12/18 Page 200 of 208 Page ID #:1947

703

MA

438

School based Policing

Small

Yes

112.29

0

704

IL

303

Building Trust and Respect

Small

No

112.27

0

705

IL

289

Building Trust and Respect

Small

Yes

112.27

0

Drug Abuse Education,

706

IL

334 Prevention, and Intervention Small

No

112.24

0

707

NY

722

School based Policing

Small

No

112.22

0

Larceny/Theft (Non-Motor

708

NC

586

Vehicle)

Small

Yes

112.02

0

709

CO

141

School based Policing

Small

No

111.93

0

Drug Abuse Education,

710

OH

766 Prevention, and Intervention Small

No

111.91

0

711

GA

243

Building Trust and Respect

Small

No

111.90

0

Drug Abuse Education,

712

NJ

640 Prevention, and Intervention Small

Yes

111.89

0

Drug Abuse Education,

713

IL

323 Prevention, and Intervention Small

No

111.85

0

714

TX

954

Domestic/Family Violence

Small

No

111.81

0

Drug Abuse Education,

715

OH

792 Prevention, and Intervention Small

No

111.78

0

Drug Manufacturing, Drug

716

WI

1072

Dealing, Drug Trafficking

Small

No

111.73

0

717

WI

1070

School based Policing

Small

No

111.68

0

718

NY

720

School based Policing

Small

No

111.63

0

719

TX

983

Human Trafficking

Small

No

111.59

0

Drug Abuse Education,

720

ND

609 Prevention, and Intervention Small

No

111.55

0

Child Sexual Predators and

721

GA

258

Internet Safety

Small

No

111.48

0

Drug Manufacturing, Drug

722

IL

321

Dealing, Drug Trafficking

Small

No

111.48

0

Larceny/Theft (Non-Motor

723

MI

490

Vehicle)

Small

No

111.43

0

Drug Abuse Education,

724

GA

265 Prevention, and Intervention Small

No

111.40

0

Drug Abuse Education,

725

MI

474 Prevention, and Intervention Small

No

111.06

0

Drug Abuse Education,

726

OK

811 Prevention, and Intervention Small

No

111.06

0

727

IL

313

Building Trust and Respect

Small

Yes

110.95

0

Drug Abuse Education,

728

MA

411 Prevention, and Intervention Small

No

110.81

0

729

FL

222

Social Disorder

Small

No

110.80

0

730

TX

962

School based Policing

Small

No

110.78

0

731

OH

775

School based Policing

Small

No

110.66

0

732

MS

567

Gun Violence

Small

No

110.49

0

Drug Manufacturing, Drug

733

KS

371

Dealing, Drug Trafficking

Small

No

110.34

0

734

TX

987 Youth Crime and Delinquency Small

No

110.33

0

Funded to Meet State

Drug Manufacturing, Drug

Minimum

735

VT

1034

Dealing, Drug Trafficking

Small

No

110.24

125,000

Requirement

736

KY

392

School based Policing

Small

Yes

110.18

0

Case 2:17-cv-07215-R-JC Document 54-1 Filed 01/12/18 Page 201 of 208 Page ID #:1948

Drug Manufacturing, Drug

737

TN

941

Dealing, Drug Trafficking

Small

No

110.12

0

738

NB

584

School based Policing

Small

Yes

110.10

0

739

MO

540

School based Policing

Small

No

109.89

0

740

WI

1093 Building Trust and Respect

Small

No

109.87

0

Drug Abuse Education,

741

PA

840 Prevention, and Intervention Small

No

109.70

0

742

NJ

687 Youth Crime and Delinquency Small

No

109.66

0

743

MI

495

Assault

Small

No

109.56

0

Drug Abuse Education,

744

PA

871 Prevention, and Intervention Small

Yes

109.02

0

745

ND

608

Pedestrian Safety

Small

No

108.88

0

746

TN

935

Domestic/Family Violence

Small

No

108.85

0

747

TN

926

School based Policing

Small

Yes

108.82

0

748

NH

619

Quality of Life Problem

Small

Yes

108.70

0

Drug Abuse Education,

749

AR

50 Prevention, and Intervention Small

Yes

108.63

0

Drug Abuse Education,

750

PA

841 Prevention, and Intervention Small

Yes

108.58

0

Protecting Critical

751

TX

990

Infrastructure Problems

Small

No

108.56

0

752

ID

282

School based Policing

Small

No

108.54

0

Other Violent Crime Problem

753

CA

73

(please specify)

Small

No

108.52

0

Drug Abuse Education,

754

CO

152 Prevention, and Intervention Small

Yes

108.51

0

755

FL

199

Building Trust and Respect

Small

No

108.49

0

Drug Manufacturing, Drug

756

TX

978

Dealing, Drug Trafficking

Small

No

108.30

0

757

TX

949

Building Trust and Respect

Small

No

108.29

0

758

AR

48 Youth Crime and Delinquency Small

Yes

108.26

0

759

IA

272

Building Trust and Respect

Small

No

108.23

0

Larceny/Theft (Non-Motor

760

NJ

655

Vehicle)

Small

No

108.17

0

761

NJ

628

Quality of Life Problem

Small

Yes

108.07

0

762

VA

1022 Building Trust and Respect

Small

No

108.03

0

Drug Manufacturing, Drug

763

IL

309

Dealing, Drug Trafficking

Small

No

107.80

0

764

LA

405 Youth Crime and Delinquency Small

Yes

107.56

0

765

OH

762

School based Policing

Small

No

107.50

0

766

WI

1078

Drunk Drving

Small

Yes

107.47

0

Other Homeland Security

767

IA

273

Problem (please specify)

Small

No

107.46

0

768

ME

457

School based Policing

Small

No

107.44

0

769

NH

615

Quality of Life Problem

Small

Yes

107.43

0

770

OH

796

Building Trust and Respect

Small

No

107.42

0

771

KY

387

School based Policing

Small

No

107.27

0

Funded to Meet State

Protecting Critical

Minimum

772

NM

692

Infrastructure Problems

Small

No

107.24

116,597

Requirement

773

FL

204

Building Trust and Respect

Small

No

107.22

0

774

TN

942

School based Policing

Small

No

106.87

0

775

VA

1012

School based Policing

Small

No

106.61

0

776

IN

353 Children Exposed to Violence Small

No

106.55

0

Case 2:17-cv-07215-R-JC Document 54-1 Filed 01/12/18 Page 202 of 208 Page ID #:1949

Drug Manufacturing, Drug

777

CA

76

Dealing, Drug Trafficking

Small

No

106.49

0

778

MS

552

School based Policing

Small

No

106.21

0

779

SC

888

Quality of Life Problem

Small

No

106.13

0

780

GA

238

Building Trust and Respect

Small

No

106.12

0

Funded to Meet State

Minimum

781

MT

578

Drunk Drving

Small

Yes

106.10

94,311

Requirement

782

PA

842 Youth Crime and Delinquency Small

Yes

105.97

0

783

WI

1105 Building Trust and Respect

Small

No

105.93

0

784

TX

955

Building Trust and Respect

Small

No

105.47

0

Other Child and Youth Safety

785

FL

174

Focus (please specify)

Small

No

105.35

0

Other Child and Youth Safety

786

MA

424

Focus (please specify)

Small

No

105.28

0

787

OH

743 Youth Crime and Delinquency Small

No

105.24

0

788

WA

1057

Disorderly Activity

Small

No

105.08

0

789

NJ

684

Quality of Life Problem

Small

No

105.05

0

790

NY

739

Building Trust and Respect

Small

No

105.04

0

Motor Vehicle Theft/Theft

791

IN

351

from Motor Vehicle

Small

No

104.84

0

792

MN

507

School based Policing

Small

No

104.84

0

793

MA

419

Social Disorder

Small

No

104.71

0

Child Sexual Predators and

794

MO

533

Internet Safety

Small

No

104.66

0

795

MO

543

School based Policing

Small

No

104.65

0

Motor Vehicle Theft/Theft

796

MS

554

from Motor Vehicle

Small

Yes

104.62

0

797

MO

525

School based Policing

Small

Yes

104.48

0

Drug Manufacturing, Drug

798

MN

522

Dealing, Drug Trafficking

Small

No

104.42

0

799

KS

374

School based Policing

Small

No

104.22

0

800

SC

902

Quality of Life Problem

Small

No

104.21

0

Drug Abuse Education,

801

TX

972 Prevention, and Intervention Small

No

104.18

0

Drug Abuse Education,

802

MO

542 Prevention, and Intervention Small

No

103.98

0

803

OH

751

Burglary

Small

Yes

103.86

0

Other Child and Youth Safety

804

WA

1059

Focus (please specify)

Small

Yes

103.83

0

Drug Manufacturing, Drug

805

MN

502

Dealing, Drug Trafficking

Small

No

103.79

0

806

PA

874 Youth Crime and Delinquency Small

No

103.77

0

807

CA

113

School based Policing

Small

No

103.71

0

808

SC

895

Building Trust and Respect

Small

No

103.67

0

Drug Manufacturing, Drug

809

WI

1067

Dealing, Drug Trafficking

Small

No

103.66

0

810

KS

365

Traffic Accidents

Small

No

103.60

0

811

NJ

664 Youth Crime and Delinquency Small

Yes

103.50

0

812

WI

1084

Pedestrian Safety

Small

No

103.18

0

813

AL

18

Misdemeanor Crimes

Small

No

103.10

0

Drug Abuse Education,

814

AL

30 Prevention, and Intervention Small

No

103.10

0

Case 2:17-cv-07215-R-JC Document 54-1 Filed 01/12/18 Page 203 of 208 Page ID #:1950

Other Child and Youth Safety

815

OH

788

Focus (please specify)

Small

Yes

103.05

0

816

TN

922

School based Policing

Small

No

103.01

0

Drug Abuse Education,

817

SD

909 Prevention, and Intervention Small

No

102.86

0

Drug Abuse Education,

818

SD

912 Prevention, and Intervention Small

No

102.82

0

819

IA

278

Building Trust and Respect

Small

No

102.78

0

820

NY

718

Quality of Life Problem

Small

No

102.74

0

Drug Abuse Education,

821

OR

830 Prevention, and Intervention Small

No

102.67

0

822

IL

326

School based Policing

Small

No

102.65

0

Drug Manufacturing, Drug

823

NJ

633

Dealing, Drug Trafficking

Small

No

102.64

0

824

AR

49 Youth Crime and Delinquency Small

Yes

102.46

Other Traffic/Pedestrian

Safety Problem (please

825

CA

125

specify)

Small

No

102.28

Other Traffic/Pedestrian

Safety Problem (please

826

MO

547

specify)

Small

No

102.24

Drug Manufacturing, Drug

827

KY

382

Dealing, Drug Trafficking

Small

No

102.20

Other Homeland Security

828

NM

693

Problem (please specify)

Small

No

102.20

Drug Manufacturing, Drug

829

NJ

689

Dealing, Drug Trafficking

Small

No

102.16

Protecting Critical

830

NJ

663

Infrastructure Problems

Small

No

101.97

831

MN

517

School based Policing

Small

No

101.89

832

CA

116

School based Policing

Small

No

101.88

833

NY

724

School based Policing

Small

No

101.88

834

NY

703

Domestic/Family Violence

Small

No

101.86

835

NY

737

Illegal Immigration

Small

101.68

0

0

0

0

0

0

0

0

0

0

0

0

Ineligible/Withdraw

Drug Abuse Education,

836

CO

140 Prevention, and Intervention Small

Yes

101.61

0

837

GA

255

Burglary

Small

Yes

101.60

0

838

VA

1018 Youth Crime and Delinquency Small

No

101.20

0

Drug Abuse Education,

839

DE

161 Prevention, and Intervention Small

No

101.16

0

840

AR

41

Building Trust and Respect

Small

No

101.16

0

841

GA

245

Building Trust and Respect

Small

No

101.11

0

842

NJ

688

School based Policing

Small

No

101.11

0

843

CO

153

Domestic/Family Violence

Small

No

100.95

0

Drug Manufacturing, Drug

844

MO

530

Dealing, Drug Trafficking

Small

No

100.93

0

Funded to Meet State

Information or Intelligence

Minimum

845

VT

1035

Problems

Small

No

100.72

113,169

Requirement

846

UT

1002 Building Trust and Respect

Small

No

100.58

0

Other Child and Youth Safety

847

IL

308

Focus (please specify)

Small

No

100.45

0

Case 2:17-cv-07215-R-JC Document 54-1 Filed 01/12/18 Page 204 of 208 Page ID #:1951

Drug Abuse Education,

848

WI

1089 Prevention, and Intervention Small

No

100.35

0

Funded to Meet State

Drug Abuse Education,

Minimum

849

MT

577 Prevention, and Intervention Small

No

100.29

125,000

Requirement

Funded to Meet State

Drug Manufacturing, Drug

Minimum

850

WY

1118

Dealing, Drug Trafficking

Small

No

100.13

125,000

Requirement

851

AR

35

Building Trust and Respect

Small

No

100.03

0

852

WI

1096

School based Policing

Small

No

99.94

0

853

PA

843

Building Trust and Respect

Small

No

99.78

0

854

MA

410

Driver Safety

Small

No

99.77

0

Other Violent Crime Problem

855

TN

937

(please specify)

Small

No

99.67

0

856

FL

193

Building Trust and Respect

Small

No

99.56

0

857

UT

1000

Vandalism

Small

Yes

99.28

0

858

IN

346

School based Policing

Small

No

99.27

0

859

WI

1092

Disorderly Activity

Small

Yes

98.86

0

860

MS

551

Building Trust and Respect

Small

No

98.80

0

861

IL

310

Building Trust and Respect

Small

No

98.71

0

862

OK

820 Youth Crime and Delinquency Small

No

98.54

0

Drug Abuse Education,

863

OH

793 Prevention, and Intervention Small

No

98.54

0

864

MI

470

School based Policing

Small

No

98.51

0

865

OK

813

Building Trust and Respect

Small

No

98.37

0

Drug Abuse Education,

866

NJ

637 Prevention, and Intervention Small

No

98.33

0

867

WI

1079 Building Trust and Respect

Small

Yes

98.29

0

Motor Vehicle Theft/Theft

868

WA

1045

from Motor Vehicle

Small

No

98.18

0

869

VA

1020

School based Policing

Small

No

97.73

0

870

MN

514

School based Policing

Small

No

97.32

0

Child Sexual Predators and

871

IL

320

Internet Safety

Small

No

97.13

0

872

AR

55

Traffic Congestion

Small

No

96.96

0

873

FL

207

Building Trust and Respect

Small

No

96.92

0

874

AL

13 Youth Crime and Delinquency Small

No

96.82

0

875

MA

420

School based Policing

Small

No

96.81

0

876

MS

572

School based Policing

Small

No

96.79

0

Larceny/Theft (Non-Motor

877

OK

815

Vehicle)

Small

No

96.72

0

Motor Vehicle Theft/Theft

878

MA

430

from Motor Vehicle

Small

Yes

96.65

0

Larceny/Theft (Non-Motor

879

AL

26

Vehicle)

Small

No

96.61

0

880

TX

992

Building Trust and Respect

Small

No

96.54

0

881

MI

478

Building Trust and Respect

Small

No

96.51

0

Drug Abuse Education,

882

MO

537 Prevention, and Intervention Small

No

96.51

0

Drug Manufacturing, Drug

883

MS

573

Dealing, Drug Trafficking

Small

No

96.46

0

884

KY

395

School based Policing

Small

No

96.32

0

Other Child and Youth Safety

885

AR

37

Focus (please specify)

Small

No

96.10

0

886

MN

516

Building Trust and Respect

Small

No

96.04

0

Case 2:17-cv-07215-R-JC Document 54-1 Filed 01/12/18 Page 205 of 208 Page ID #:1952

Child Sexual Predators and

887

PA

839

Internet Safety

Small

No

95.94

888

KY

376

Homicide

Small

95.88

889

OR

833

Building Trust and Respect

Small

Yes

95.78

0

0

Ineligible/Withdraw

0

890

OR

832 Youth Crime and Delinquency Small

No

95.74

0

Protecting Critical

891

FL

210

Infrastructure Problems

Small

No

95.49

0

Drug Manufacturing, Drug

892

AL

33

Dealing, Drug Trafficking

Small

No

95.27

0

893

IA

271

Burglary

Small

No

95.25

0

894

MS

563

Quality of Life Problem

Small

Yes

95.12

0

895

OR

826

Social Disorder

Small

No

95.04

0

Funded to Meet State

Other Violent Crime Problem

Minimum

896

AK

5

(please specify)

Small

Yes

94.99

35,574

Requirement

Motor Vehicle Theft/Theft

897

MD

443

from Motor Vehicle

Small

No

94.67

0

898

CT

158

School based Policing

Small

No

94.65

0

899

CO

143

Building Trust and Respect

Small

Yes

94.52

0

900

FL

230

School based Policing

Small

No

94.48

0

901

TX

944

Burglary

Small

No

94.42

0

Drug Manufacturing, Drug

902

MS

571

Dealing, Drug Trafficking

Small

No

94.39

0

903

TX

995

School based Policing

Small

No

94.23

0

904

TX

979

School based Policing

Small

No

94.16

0

Drug Abuse Education,

905

OH

785 Prevention, and Intervention Small

No

93.95

0

906

IL

322

Building Trust and Respect

Small

No

93.94

0

907

KY

379

Burglary

Small

Yes

93.90

0

908

NY

731

Robbery

Small

No

93.86

0

909

NJ

691

School based Policing

Small

No

93.77

0

910

MS

555

Misdemeanor Crimes

Small

Yes

93.61

0

Larceny/Theft (Non-Motor

911

WI

1086

Vehicle)

Small

No

93.57

0

Drug Abuse Education,

912

WV

1112 Prevention, and Intervention Small

No

93.37

0

913

GA

254

Burglary

Small

No

93.28

0

Drug Abuse Education,

914

WI

1095 Prevention, and Intervention Small

No

93.02

0

915

SC

899

Building Trust and Respect

Small

No

92.94

0

916

NY

717

Driver Safety

Small

No

92.51

0

917

MI

465

Burglary

Small

No

92.50

0

918

AR

54

School based Policing

Small

No

92.15

0

919

OK

818

School based Policing

Small

Yes

92.10

0

920

MS

562 Youth Crime and Delinquency Small

Yes

91.69

0

Drug Abuse Education,

921

IN

343 Prevention, and Intervention Small

No

91.33

Motor Vehicle Theft/Theft

922

AR

53

from Motor Vehicle

Small

No

90.77

Protecting Critical

923

AS

57

Infrastructure Problems

Small

90.73

0

0

0

Ineligible/Withdraw

Drug Abuse Education,

924

CT

160 Prevention, and Intervention Small

No

90.71

0

925

NM

696 Youth Crime and Delinquency Small

No

89.66

0

926

MA

421

School based Policing

Small

No

89.55

0

Case 2:17-cv-07215-R-JC Document 54-1 Filed 01/12/18 Page 206 of 208 Page ID #:1953

927

KY

389

School based Policing

Small

No

89.47

0

Drug Abuse Education,

928

WI

1065 Prevention, and Intervention Small

Yes

89.18

0

929

NJ

659

Domestic/Family Violence

Small

No

89.16

0

930

CA

133

School based Policing

Small

No

89.01

0

931

NC

590

Building Trust and Respect

Small

No

88.98

0

932

IL

335

School based Policing

Small

No

88.92

0

933

SD

918 Youth Crime and Delinquency Small

No

88.71

934

AR

42

Burglary

Small

88.52

0

0

Ineligible/Withdraw

Drug Abuse Education,

935

CO

146 Prevention, and Intervention Small

No

88.30

0

Drug Abuse Education,

936

UT

1003 Prevention, and Intervention Small

No

88.27

0

Drug Abuse Education,

937

IL

324 Prevention, and Intervention Small

No

88.05

0

Drug Abuse Education,

938

MS

561 Prevention, and Intervention Small

No

87.98

0

Other Traffic/Pedestrian

Safety Problem (please

939

WV

1114

specify)

Small

No

87.64

0

940

MI

488

Assault

Small

No

87.53

0

Drug Abuse Education,

941

OH

790 Prevention, and Intervention Small

No

87.14

0

Other Traffic/Pedestrian

Safety Problem (please

942

MI

486

specify)

Small

No

87.11

0

943

CA

72

Traffic Accidents

Small

No

86.81

0

Drug Abuse Education,

944

ME

455 Prevention, and Intervention Small

Yes

86.74

0

945

MN

498

Building Trust and Respect

Small

No

86.66

0

946

OH

786

School based Policing

Small

No

86.54

0

Drug Abuse Education,

947

NJ

690 Prevention, and Intervention Small

No

86.31

0

Drug Manufacturing, Drug

948

MN

500

Dealing, Drug Trafficking

Small

No

86.07

0

949

NC

603

Building Trust and Respect

Small

No

86.06

0

950

OH

764

School based Policing

Small

No

86.01

0

951

OH

753

School based Policing

Small

No

86.00

0

Drug Abuse Education,

952

IA

269 Prevention, and Intervention Small

Yes

85.85

0

953

IL

315

Building Trust and Respect

Small

No

85.76

0

954

ND

610

Building Trust and Respect

Small

No

85.73

0

955

WI

1073 Building Trust and Respect

Small

No

85.57

0

956

IN

361

School based Policing

Small

No

85.31

0

Drug Abuse Education,

957

PA

868 Prevention, and Intervention Small

No

85.27

0

Drug Abuse Education,

958

NJ

632 Prevention, and Intervention Small

No

85.27

0

Funded to Meet State

Drug Abuse Education,

Minimum

959

VT

1037 Prevention, and Intervention Small

No

84.68

125,000

Requirement

Case 2:17-cv-07215-R-JC Document 54-1 Filed 01/12/18 Page 207 of 208 Page ID #:1954

960

MI

477 Youth Crime and Delinquency Small

No

84.38

961

KS

364

School based Policing

Small

No

84.36

Drug Abuse Education,

962

WI

1106 Prevention, and Intervention Small

No

84.28

963

OH

754

School based Policing

Small

84.08

964

MI

484

Criminal Gangs

Small

No

84.06

965

NJ

672

School based Policing

Small

No

83.91

966

IL

307

School based Policing

Small

No

83.82

967

ND

611

School based Policing

Small

No

83.55

968

TX

993

School based Policing

Small

No

83.53

Larceny/Theft (Non-Motor

969

AL

12

Vehicle)

Small

83.39

970

ID

286

Building Trust and Respect

Small

No

83.07

971

ID

280

School based Policing

Small

82.83

972

IA

276

Domestic/Family Violence

Small

82.17

973

CO

139

School based Policing

Small

No

81.64

974

WA

1060 Domestic/Family Violence

Small

80.92

Drug Abuse Education,

975

AL

22 Prevention, and Intervention Small

No

80.66

976

NM

695 Youth Crime and Delinquency Small

80.56

977

IL

330

School based Policing

Small

No

79.89

Other Traffic/Pedestrian

Safety Problem (please

978

FL

172

specify)

Small

78.62

Drug Abuse Education,

979

AR

52 Prevention, and Intervention Small

Yes

78.36

980

WI

1104

School based Policing

Small

No

77.67

981

OH

787

Domestic/Family Violence

Small

No

77.50

Child Sexual Predators and

982

OH

757

Internet Safety

Small

No

77.45

983

MN

515

School based Policing

Small

76.99

Other Traffic/Pedestrian

Safety Problem (please

984

SC

904

specify)

Small

76.61

985

NJ

627

School based Policing

Small

No

76.57

Drug Manufacturing, Drug

986

WI

1066

Dealing, Drug Trafficking

Small

75.83

Protecting Critical

987

MA

432

Infrastructure Problems

Small

No

75.79

Drug Abuse Education,

988

NY

708 Prevention, and Intervention Small

No

75.46

989

VA

1017

School based Policing

Small

No

75.37

Drug Abuse Education,

990

KY

396 Prevention, and Intervention Small

No

74.93

991

WI

1064

Driver Safety

Small

No

74.79

992

AL

21

School based Policing

Small

No

73.80

993

MA

426

School based Policing

Small

No

73.66

994

MA

423

Driver Safety

Small

73.18

995

OH

765

School based Policing

Small

No

73.10

996

FL

214

Vandalism

Small

71.88

Drug Manufacturing, Drug

997

PA

870

Dealing, Drug Trafficking

Small

71.75

998

ME

458

Building Trust and Respect

Small

No

71.16

999

PA

861

Driver Safety

Small

No

71.14

0 0

0

0

Ineligible/Withdraw

0

0

0

0

0

0

Ineligible/Withdraw

0

0

Ineligible/Withdraw

0

Ineligible/Withdraw

0

0

Ineligible/Withdraw

0

0

Ineligible/Withdraw

0

0

Ineligible/Withdraw

0 0 0

0

0

Ineligible/Withdraw

0

Ineligible/Withdraw

0

0

Ineligible/Withdraw

0

0 0

0

0

0

0

0

Ineligible/Withdraw

0

0

Ineligible/Withdraw

0

Ineligible/Withdraw

0

0

Case 2:17-cv-07215-R-JC Document 54-1 Filed 01/12/18 Page 208 of 208 Page ID #:1955

Drug Abuse Education,

1000

KS

363 Prevention, and Intervention Small

70.98

0

Ineligible/Withdraw

Funded to Meet State

Minimum

1001

AK

4

Quality of Life Problem

Small

No

70.28

178,882

Requirement

Drug Abuse Education,

1002

NJ

636 Prevention, and Intervention Small

70.23

1003

IA

279

Drunk Drving

Small

70.23

1004

IA

274

Building Trust and Respect

Small

No

68.14

Larceny/Theft (Non-Motor

1005

AR

38

Vehicle)

Small

No

67.64

1006

NB

579

Building Trust and Respect

Small

No

67.17

1007

TN

928

Burglary

Small

66.98

1008

WI

1068 Building Trust and Respect

Small

66.25

1009 MD

446

Driver Safety

Small

66.15

1010

AL

9

Burglary

Small

64.48

1011 MO

528

School based Policing

Small

64.38

1012

IL

328

Burglary

Small

63.87

0

Ineligible/Withdraw

0

Ineligible/Withdraw

0

0

0

0

Ineligible/Withdraw

0

Ineligible/Withdraw

0

Ineligible/Withdraw

0

Ineligible/Withdraw

0

Ineligible/Withdraw

0

Ineligible/Withdraw

Drug Abuse Education,

1013

NJ

668 Prevention, and Intervention Small

63.75

0

Ineligible/Withdraw

Funded to Meet State

Minimum

1014

VT

1036

School based Policing

Small

No

63.67

93,583

Requirement

1015

OH

778

Traffic Accidents

Small

63.35

0

Ineligible/Withdraw

Child Sexual Predators and

1016

UT

1001

Internet Safety

Small

No

63.24

0

1017

MS

556

Assault

Small

62.99

0

Ineligible/Withdraw

Drug Abuse Education,

1018

KY

394 Prevention, and Intervention Small

61.40

1019

VA

1011

School based Policing

Small

61.08

1020

VA

1009

School based Policing

Small

No

59.91

1021

KY

388

Misdemeanor Crimes

Small

57.46

1022

MI

489

Building Trust and Respect

Small

57.16

1023

SC

894

School based Policing

Small

No

53.98

1024

KS

370

School based Policing

Small

51.67

1025

SC

886

School based Policing

Small

49.24

1026

NY

721

School based Policing

Small

48.32

1027

MS

560

Building Trust and Respect

Small

47.72

1028

MI

466

Quality of Life Problem

Small

34.55

1029

VA

1028

Burglary

Small

31.37

0

Ineligible/Withdraw

0

Ineligible/Withdraw

0

0

Ineligible/Withdraw

0

Ineligible/Withdraw

0

0

Ineligible/Withdraw

0

Ineligible/Withdraw

0

Ineligible/Withdraw

0

Ineligible/Withdraw

0

Ineligible/Withdraw

0

Ineligible/Withdraw

Case 2:17-cv-07215-R-JC Document 54-2 Filed 01/12/18 Page 1 of 8 Page ID #:1956

1 CHAD A. READLER
2 Acting Assistant Attorney General SANDRA R. BROWN
3 United States Attorney
4 JOHN R. TYLER Assistant Director
5 W. SCOTT SIMPSON (Va. Bar #27487)
6 Senior Trial Counsel Department of Justice, Room 7210
7 Civil Division, Federal Programs Branch
8 Post Office Box 883 Washington, D.C. 20044
9 Telephone: (202) 514-3495
10 Facsimile: (202) 616-8470 E-mail: scott.simpson@usdoj.gov
11
12 COUNSEL FOR DEFENDANTS

13

14 UNITED STATES DISTRICT COURT
15

16

FOR THE CENTRAL DISTRICT OF CALIFORNIA

17 CITY OF LOS ANGELES,

Case No. 2:17-cv-07215-R-JCx

18

Plaintiff,

STATEMENT OF UNCONTRO-

19

v.

VERTED FACTS IN SUPPORT OF

20

DEFENDANTS’ MOTION FOR

JEFFERSON B. SESSIONS, III, et al., PARTIAL SUMMARY JUDGMENT;

21

RESPONSE TO PLAINTIFF’S

22

Defendants.

STATEMENT OF FACTS

23

Date: February 20, 2018

24

Time: 10:00 a.m.

25

26

Pursuant to Local Civil Rule 56-1 and 56-2, defendants submit the following

27 Statement of Uncontroverted Facts in support of their motion for partial summary

28

Case 2:17-cv-07215-R-JC Document 54-2 Filed 01/12/18 Page 2 of 8 Page ID #:1957

1 judgment, and the following response to plaintiff’s Statement of Uncontroverted

2 Facts (Doc. 49-2).

3

Defendants’ Statement of Uncontroverted Facts

4

1. The Attorney General created the Office of Community Oriented Policing

5 Services (“COPS Office” or “Office”) within the U.S. Department of Justice in

6 1994 to administer grants under the Violent Crime Control and Law Enforcement

7 Act. See Declaration of Andrew A. Dorr ¶ 2 (“Dorr Decl.”).

8

2. The COPS Office began implementing 34 U.S.C. § 10381(b)(1) and (b)(2)

9 in 1994, initially as two programs. The programs were combined in 1995, and it

10 was renamed the COPS Hiring Program (“CHP” or “Program”) in 2010. See Dorr

11 Decl. ¶¶ 5-6.

12

3. Under the CHP, the COPS Office makes grants to States, units of local

13 government, and Indian tribal governments to hire, rehire, or train law enforcement

14 officers for deployment in community-oriented policing. See Dorr Decl. ¶¶ 5, 7.

15

4. The COPS Hiring Program is discretionary, meaning there is no

16 entitlement to funding and all applicants must compete against each other for the

17 available funds. See Dorr Decl. ¶ 4.

18

5. Operation of the CHP is subject to specific annual appropriations by

19 Congress. See Dorr Decl. ¶¶ 3, 5. Each year, the applications that the COPS Office

20 receives for CHP grants seek significantly more funds, in the aggregate, than

21 Congress has appropriated. Id. ¶¶ 12-13.

22

6. The COPS Office has developed methods and factors to evaluate and

23 score CHP applications in order to determine how to allocate the Program’s funds,

24 and those scoring methods and factors change from time to time. See Dorr Decl.

25 ¶¶ 14-20.

26

7. Each year, the COPS Office designates several broad areas of public

27 safety and community policing to emphasize within the CHP, and CHP applicants

28 must indicate which areas their proposed activities will support. Since FY 2011,

2

Case 2:17-cv-07215-R-JC Document 54-2 Filed 01/12/18 Page 3 of 8 Page ID #:1958

1 the Office has prioritized certain of those available areas, and applicants that select

2 those focus areas receive extra points in the application system. See Dorr Decl.

3 ¶ 18.

4

8. The CHP application system accords extra points for certain internal

5 management practices of the applicant, including the regular assessment of

6 employee satisfaction, the exercise of flexibility in officer shift assignments to

7 facilitate addressing problems, and the operation of an “early intervention system”

8 to identify officers showing signs of stress, personal problems, or questionable

9 work conduct. See Dorr Decl. ¶ 18.

10

9. From FY 2013 through FY 2016, the COPS Office assigned extra points

11 for jurisdictions that preferred military veterans in hiring officers with CHP funds,

12 although no such preference was reflected in the statute during that period. See

13 Dorr Decl. ¶ 19.

14

10. Each individual factor on the CHP application falls into one of three

15 categories: Fiscal Health, Crime, or Community Policing. After calculating each

16 applicant’s raw scores, the COPS Office gives different weights to the applicant’s

17 scores in each of these categories. The Office changes those weighting percentages

18 from time to time. See Dorr Decl. ¶ 20.

19

11. Beginning with FY 2016, the COPS Office has advised each CHP

20 applicant that the requirement for grantees to comply with all applicable federal

21 laws includes compliance with 8 U.S.C. § 1373. For FY 2017, the Office required

22 applicants to certify compliance with Section 1373 as a threshold eligibility

23 requirement, although there was no scoring associated with it. See Dorr Decl. ¶ 23.

24

12. For FY 2017, the CHP application system assigned extra points to

25 applicants that choose Illegal Immigration as a focus area, although the system also

26 gave an equal or greater number of points for selecting other focus areas. See Dorr

27 Decl. ¶ 24.

28

3

Case 2:17-cv-07215-R-JC Document 54-2 Filed 01/12/18 Page 4 of 8 Page ID #:1959

1

13. For FY 2017, the COPS Office offered applicants the opportunity to

2 receive additional points by certifying that the applicant had implemented or would

3 implement regulations or policies to ensure (1) that the Department of Homeland

4 Security (“DHS”) would have access to the applicant’s correctional or detention

5 facilities “to meet with an alien (or an individual believed to be an alien) and

6 inquire as to his or her right to be or to remain in the United States,” and (2) that the

7 applicant’s correctional and detention facilities would “provide advance notice as

8 early as practicable (at least 48 hours, where possible) to DHS regarding the

9 scheduled release date and time of an alien in the jurisdiction’s custody when DHS

10 requests such notice in order to take custody of the alien.” See Dorr Decl. ¶ 25.

11

14. The materials informing applicants regarding the access-and-notice

12 certifications for FY 2017 stated that the certification would not commit applicants

13 to detain any individuals beyond their scheduled time of release, and that applicants

14 would not be penalized if they did not operate detention facilities. See Dorr Decl.

15 ¶ 27.

16

15. The COPS Office does not understand the access-and-notice certification

17 for FY 2017 to forbid a certifying jurisdiction from informing detainees that they

18 may choose not to meet with federal immigration authorities if the jurisdiction’s

19 laws require providing that information. See Dorr Decl. ¶ 26.

20

16. The COPS Office does not understand the access-and-notice certification

21 for FY 2017 to require that a certifying jurisdiction notify DHS before the release

22 of each alien under short-term detention whose release time is unknown. See Dorr

23 Decl. ¶ 26.

24

17. One large jurisdiction and six small jurisdictions chose Illegal

25 Immigration as the focus area of their FY 2017 applications. None of those

26 applicants scored high enough to receive CHP funding prior to the addition of any

27 points attributable to the access-and-notice factors. See Dorr Decl. ¶¶ 30-35 & Exs.

28 C-E.

4

Case 2:17-cv-07215-R-JC Document 54-2 Filed 01/12/18 Page 5 of 8 Page ID #:1960

1

18. Of the 30 large jurisdictions whose FY 2017 CHP applications were

2 funded, 19 returned the access-and-notice certification. Of the 149 small juris-

3 dictions whose FY 2017 CHP applications were funded, 124 returned the access-

4 and-notice certification. See Dorr Decl. ¶ 35.

5

19. Returning the access-and-notice certification moved the one large

6 jurisdiction that selected Illegal Immigration as its focus area, Laredo, Texas, from

7 below the funding line to above the funding line for FY 2017. See Dorr Decl. ¶ 35.

8

20. Returning the access-and-notice certification moved one of the six small

9 jurisdictions that selected Illegal Immigration as their focus area from below the

10 funding line to above the funding line for FY 2017. See Dorr Decl. ¶ 35.

11

Response to Plaintiff’s Statement of Uncontroverted Facts

12

1. This paragraph of plaintiff’s Statement is a summary of certain statutes.

13 Defendants respectfully refer the Court to the governing statutes for a full and

14 accurate statement of their contents.

15

2-3. Defendants concur in these paragraphs of plaintiff’s Statement.

16

4. Defendants dispute the accuracy of the word “generally” in this

17 paragraph, given that the funds appropriated by Congress have always been

18 insufficient to fund all of the CHP applications. See Dorr Decl. ¶¶ 13-14.

19 Defendants also dispute any implication that the weighting described in this

20 paragraph is the only method or factor by which the COPS Office determines which

21 applicants receive the limited CHP funding. Id. ¶¶ 16-20. Defendants concur in the

22 remainder of this paragraph.

23

5. Defendants dispute the accuracy of the word “generally” in this

24 paragraph, given that the COPS Office always allocates differing numbers of points

25 based on a variety of factors. See Dorr Decl. ¶¶ 16-20. Defendants concur in the

26 remainder of this paragraph.

27

28

5

Case 2:17-cv-07215-R-JC Document 54-2 Filed 01/12/18 Page 6 of 8 Page ID #:1961

1

6. Defendants dispute any implication that the scoring system has provided

2 extra points for catastrophic events only “in prior years.” That was also done in FY

3 2017. See Dorr Decl. ¶ 18.

4

7. This paragraph of plaintiff’s Statement is a summary of certain statutes.

5 Defendants respectfully refer the Court to the governing statutes for a full and

6 accurate statement of their contents.

7

8. Defendants concur in this paragraph of plaintiff’s Statement.

8

7. Defendants concur in this paragraph of plaintiff’s Statement.1

9

8. Defendants dispute any implication that this paragraph sets forth in full

10 the COPS Office’s description of the Illegal Immigration focus area for FY 2017.

11 The application asked any jurisdiction choosing this focus area to “specify your

12 focus on partnering with federal law enforcement to combat illegal immigration

13 through information sharing, 287(g) partnerships, task forces and honoring

14 detainers.” See Dorr Decl. ¶ 24. Defendants concur in the remainder of this

15 paragraph.2

16

9. Defendants dispute any implication that the 2017 CHP Application Guide

17 failed to provide needed guidance for potential applicants. The COPS Office

18 deliberately avoids telling applicants what to do in a given area, so that applicants

19 can develop their own approaches and tactics based on local conditions and their

20 local law enforcement expertise. See Dorr Decl. ¶ 8. Defendants concur in the

21 remainder of this paragraph.

22

10-15. Defendants concur in these paragraphs of plaintiff’s Statement.

23

16. Defendants dispute any implication that Los Angeles has received CHP

24 funding each time it has applied. The City also submitted CHP applications in

25

26 1 This is the second paragraph 7 in plaintiff’s Statement, beginning with the

27 words “In the fiscal year.”

28

2 This is the second paragraph 8 in plaintiff’s Statement, beginning with the

words “The Office described.”

6

Case 2:17-cv-07215-R-JC Document 54-2 Filed 01/12/18 Page 7 of 8 Page ID #:1962

1 2011 and 2017, both of which were denied. See Dorr Decl. ¶ 36. Defendants

2 concur in the remainder of this paragraph.

3

17. Defendants dispute plaintiff’s reading of the document cited in this

4 paragraph. In FY 2016, Los Angeles was the fourteenth highest scoring applicant

5 out of 1,181 large and small jurisdictions. See Larracas Decl. Ex. D (FY 2016

6 COPS Hiring Program Applicant Rankings). More materially, however, Los

7 Angeles ranked eighth out of the 106 large applicants in FY 2016. Id.

8

18-19. Defendants concur in these paragraphs of plaintiff’s Statement.

9

20. Defendants concur that this paragraph accurately reflects plaintiff’s

10 description of its Community Safety Partnership program.

11

21. Defendants concur in this paragraph of plaintiff’s Statement.

12

22. Defendants dispute any implication that an applicant must create a new

13 “program” to select Illegal Immigration as a focus area. See Dorr Decl. ¶ 24.

14 Defendants concur in the remainder of this paragraph.

15

23. Defendants concur that this paragraph accurately reflects plaintiff’s

16 beliefs.

17

24. Defendants concur that this paragraph accurately reflects plaintiff’s

18 policy. Defendants dispute any implication, however, that choosing Illegal

19 Immigration as a focus area or returning the access-and-notice certification would

20 require Los Angeles to violate the policy described. See Dorr Decl. ¶¶ 24-27.

21

25. Defendants concur in the first sentence of this paragraph. Defendants

22 dispute the second sentence, given that contacting the COPS Office Response

23 Center would have enabled the plaintiff to determine “whether DOJ would consider

24 its detention facility policies and practices to comply with the Access and Notice

25 Requirements.” See Dorr Decl. ¶ 28.

26

26. Defendants concur in this paragraph of plaintiff’s Statement.

27

28

7

Case 2:17-cv-07215-R-JC Document 54-2 Filed 01/12/18 Page 8 of 8 Page ID #:1963

1

27. Defendants are unable to determine the basis for this paragraph based on

2 plaintiff’s citation. In any event, the paragraph is incorrect under the present

3 circumstances. See Dorr Decl. ¶¶ 30-35 & Exs. C-E.

4

28. Defendants concur in this paragraph of plaintiff’s Statement.

5 Dated: January 12, 2018

6 Respectfully submitted,
7

8

CHAD A. READLER

Acting Assistant Attorney General

9

10

SANDRA R. BROWN

United States Attorney

11

12

JOHN R. TYLER

Assistant Director

13

14

/w/ W. Scott Simpson

15

W. SCOTT SIMPSON (Va. Bar #27487)

16

Senior Trial Counsel

17

Attorneys, Department of Justice

18

Civil Division, Room 7210

Federal Programs Branch

19

Post Office Box 883

20

Washington, D.C. 20044

Telephone:(202) 514-3495

21

Facsimile: (202) 616-8470

22

E-mail: scott.simpson@usdoj.gov

23

COUNSEL FOR DEFENDANTS

24

25

26

27

28

8

 </s> Case 2:17-cv-07215-R-JC Document 59 Filed 01/29/18 Page 1 of 33 Page ID #:2065

1 MICHAEL N. FEUER, SBN 111529

MITCHELL A. KAMIN, SBN 202788

2 City Attorney JAMES P. CLARK, SBN 64780
3 Chief Deputy City Attorney

MÓNICA RAMÍREZ ALMADANI, SBN 234893 NEEMA T. SAHNI, SBN 274240

4 LEELA A. KAPUR, SBN 125548 Executive Assistant City Attorney
5 VALERIE L. FLORES, SBN 138572

Covington & Burling LLP 1999 Avenue of the Stars, Suite 3500 Los Angeles, California 90067-4643

6 Managing Senior Assistant City Attorney mkamin@cov.com

MICHAEL DUNDAS, SBN 226930

Telephone: (424) 332-4800

7 Deputy City Attorney

Facsimile: (424) 332-4749

8 200 North Main Street, City Hall East Suite 800
9 Los Angeles, California 90012

DAVID M. ZIONTS, admitted pro hac vice

10 james.p.clark@lacity.org

IVANO M. VENTRESCA, admitted pro

11

Telephone: (213) 978-8344 Facsimile: (213) 978-8312

hac vice Covington & Burling LLP

12

One CityCenter

13

850 Tenth Street NW Washington, DC 20001

14

dzionts@cov.com

15

Telephone: (202) 662-6000 Facsimile: (202) 662-5987

16

17 Attorneys for Plaintiff City of Los Angeles

18

UNITED STATES DISTRICT COURT

19

FOR THE CENTRAL DISTRICT OF CALIFORNIA

20

21 22 CITY OF LOS ANGELES,

Case No. 2:17-cv-07215-R-JCx

23

Plaintiff,

24

v.

25

26

JEFFERSON B. SESSIONS, III, in his official capacity as Attorney General of the

27 United States; ALAN R. HANSON, in his

28 official capacity as Acting Assistant

CITY OF LOS ANGELES’ REPLY IN SUPPORT OF MOTION FOR PARTIAL SUMMARY JUDGMENT AND OPPOSITION TO DEFENDANTS’ MOTION FOR PARTIAL SUMMARY JUDGMENT
Judge: The Honorable Manuel L. Real

CITY OF LOS ANGELES’ REPLY IN SUPPORT OF MOTION FOR PARTIAL SUMMARY JUDGMENT AND OPPOSITION TO DEFENDANTS’ MOTION FOR PARTIAL SUMMARY JUDGMENT

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1 Attorney General of the Office of Justice 2 Programs; RUSSELL WASHINGTON, in
his official capacity as Acting Director of 3 the Office of Community Oriented Policing 4 Services; UNITED STATES
DEPARTMENT OF JUSTICE. 5

6

Defendants.

7

8

9

10

11

12

13

14

15

16

17

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20

21

22

23

24

25

26

27

28

Date: February 20, 2018 Time: 10:00 a.m.

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1

TABLE OF CONTENTS

2 INTRODUCTION .................................................................................................... 1

3 ARGUMENT ............................................................................................................ 3

4 I. 5 6

Defendants’ Attempt To Evade Judicial Review Fails. ................................. 3
A. Los Angeles Has Standing Because It Suffered Competitive Injury In The 2017 COPS Grant Cycle. .............................................................. 3

7

B. The Case Is Not Moot. ......................................................................... 4

8

1. The “Capable of Repetition, Yet Evading Review” Doctrine

9

Applies. ...................................................................................... 5

10 11 12 13 II. 14

2. Defendants Are Not Entitled To Summary Judgment On The Question Of Whether Los Angeles Would Have Received A FY 2017 Award................................................................................ 8
Plaintiff Is Entitled To Judgment As A Matter of Law. ................................. 9
A. The Challenged Considerations Are Ultra Vires. ................................ 9

15

1. DOJ Lacks Statutory Authority To Use The COPS Program To

16

Pressure States And Local Communities To Change Laws, Regulations, And Policies Unrelated To The Program As

17

Created By Congress................................................................ 11

18

2. DOJ Cannot Divert Funds That Congress Designated For

19

Community Policing To Federal Civil Immigration

Enforcement. ............................................................................ 15

20

21

3. The Choice Before The Court Is Not Unfettered Agency Power Or Grant Awards Chosen By Lottery. ..................................... 17

22

B. The Challenged Considerations Violate The Spending Clause Because

23

Defendants Cannot Identify Any Reasonable Relationship They Bear

24

To The Community Policing Purpose Of The COPS Program. ........ 20

25

C. The Challenged Considerations Are Arbitrary And Capricious. ....... 21

26 III. An Injunction Barring Defendants From Using The Invalid Considerations Is

27

Appropriate. .................................................................................................. 23

28 CONCLUSION ....................................................................................................... 24

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1

TABLE OF AUTHORITIES

2

Page(s)

3 Cases

4 Adarand Constructors, Inc. v. Pena,

5

515 U.S. 200 (1995)........................................................................................................ 4

6 Alaska Fish & Wildlife Fed’n & Outdoor Council, Inc. v. Dunkle,

7

829 F.2d 933 (9th Cir. 1987) .......................................................................................... 7

8

Alaska Oil & Gas Ass’n v. Jewell, 815 F.3d 544 (9th Cir. 2016) ........................................................................................ 22

9

10

Az. Cattle Growers’ Ass’n v. U.S. Fish & Wildlife, Bureau of Land Mgmt., 273 F.3d 1229 (9th Cir. 2001) ...................................................................................... 22

11 Barilla v. Ervin,

12

886 F.2d 1514 (9th Cir. 1989), overruled on other grounds by Simpson v.

13

Lear Astronics Corp., 77 F.3d 1170 (9th Cir. 1996) ...................................................... 5

14 Bresgal v. Brock,

15

843 F.2d 1163 (9th Cir. 1987) ...................................................................................... 24

16 Bullfrog Films, Inc. v. Wick, 847 F.2d 502 (9th Cir. 1988) .......................................................................................... 3
17

18

Califano v. Yamasaki, 442 U.S. 682 (1979)...................................................................................................... 23

19

20

Chamber of Commerce of U.S. v. Whiting, 563 U.S. 582 (2011)...................................................................................................... 10

21 Com. Va., Dep’t of Educ. v. Riley,

22

106 F.3d 559 (4th Cir. 1997) (en banc) .................................................................. 13, 14

23 Coral Const. Co. v. King Cty.,

24

941 F.2d 910 (9th Cir. 1991) .......................................................................................... 4

25 DeCanas v. Bica,

26

424 U.S. 351 (1976)...................................................................................................... 15

27 Decker v. O’Donnell, 661 F.2d 598 (7th Cir. 1980) ........................................................................................ 23
28

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1 Defenders of Wildlife v. Jewell,

2

176 F. Supp. 3d 975, 1004 (D. Mont. 2016)................................................................. 22

3 Easyriders Freedom F.I.G.H.T. v. Hannigan,

4

92 F.3d 1486 (9th Cir. 1996) ........................................................................................ 24

5 Ely v. Velde, 451 F.2d 1130 (4th Cir. 1971) ...................................................................................... 13
6

7

Friends of the Earth, Inc. v. Laidlaw Envtl. Servs. (TOC), Inc., 528 U.S. 167 (2000)........................................................................................................ 6

8

9

Gregory v. Ashcroft, 501 U.S. 452 (1991)...................................................................................................... 13

10 Honig v. Doe,

11

484 U.S. 305 (1988)........................................................................................................ 6

12 Karuk Tribe of California v. United States Forest Serv.,

13

681 F.3d 1006 (9th Cir. 2012) ........................................................................................ 5

14 Kingdomware Technologies, Inc. v. United States,

15

136 S. Ct. 1969 (2016).................................................................................................... 5

16 Lewis v. Continental Bank Corp.,

17

494 U.S. 472 (1990)........................................................................................................ 6

18

Los Angeles Cty. v. Davis, 440 U.S. 625 (1979)........................................................................................................ 7

19

20

Murphy v. Hunt, 455 U.S. 478 (1982)........................................................................................................ 5

21 NE Fla. Chapter of Associated Gen. Contractors of America v. Jacksonville,

22

508 U.S. 656 (1993)........................................................................................................ 3

23 Nevada v. Skinner,

24

884 F.2d 445 (9th Cir. 1989) ........................................................................................ 20

25 New York v. United States,

26

505 U.S. 144 (1992)...................................................................................................... 20

27 Pacific Coast Fed’n of Fishermen’s Ass’ns v. U.S. Bureau of Reclamation,

28

426 F.3d 1082 (9th Cir. 2005) ...................................................................................... 22

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1 Philadelphia v. Sessions,

2

2017 WL 5489476 (E.D. Pa. Nov. 15, 2017), appeal filed (3d Cir. Jan.

18, 2018) ....................................................................................................................... 21

3

4

Preston v. Heckler, 734 F.2d 1359 (9th Cir. 1984) ........................................................................................ 3

5

6

Regents of the University of California v. Bakke, 438 U.S. 265 (1978)........................................................................................................ 3

7 Robbins v. Reagan,

8

780 F.2d 37 (D.C. Cir. 1985) .................................................................................... 9, 11

9 Ry. Labor Execs. Ass’n v. Nat’l Mediation Bd.,

10

29 F.3d 655 (D.C. Cir. 1994) (en banc)........................................................................ 12

11 Santa Clara v. Trump,

12

2017 WL 5569835 (N.D. Cal. Nov. 20, 2017) ............................................................. 23

13 Schism v. United States,

14

316 F.3d 1259 (Fed. Cir. 2002) .................................................................................... 19

15

Skaff v. Meridien N. Am. Beverly Hills, LLC, 506 F.3d 832 (9th Cir. 2007) .......................................................................................... 4

16

17

South Dakota v. Dole, 483 U.S. 203 (1987)...................................................................................................... 12

18 Texas v. United States,

19

809 F.3d 134 (5th Cir. 2015), aff’d by an equally divided court, 136 S.

20

Ct. 2271 (2016) ............................................................................................................. 23

21 Washington v. Trump,

22

847 F.3d 1151 (9th Cir. 2017) ...................................................................................... 23

23

Wolfson v. Brammer, 616 F.3d 1045 (9th Cir. 2010) ........................................................................................ 7

24

25 Statutes and Legislative History Materials

26 5 U.S.C. § 706(2)(A).......................................................................................................... 21

27 8 U.S.C. § 1357(g) ....................................................................................................... 16, 17

28 34 U.S.C. § 10122 .............................................................................................................. 14

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1 34 U.S.C. § 10381 .................................................................................... 2, 9, 11, 13, 15, 19

2 34 U.S.C. § 10382 ........................................................................................................ 18, 19 3
42 U.S.C. § 3766(a) ........................................................................................................... 14 4

5

Controlling Crime Through More Effective Law Enforcement: Hearings Before the Subcomm. on Criminal Laws and Procedure of the S. Comm.

6

on the Judiciary, 90th Cong. (1967) ............................................................................. 14

7 Pub. L. No. 103-322........................................................................................................... 16
8 S. Rep. 90-1097, 1968 U.S.C.C.A.N. 2112, 2276 (1968) ................................................. 13 9

10

11

12

13

14

15

16

17

18

19

20

21

22

23

24

25

26

27

28

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1

INTRODUCTION

2

The U.S. Department of Justice (“DOJ”) asks this Court to endorse a boundless

3 interpretation of its own authority. Defendants assert that DOJ may transform a grant

4 program that Congress expressly designed to support the hiring of state and local officers

5 for “deployment in community-oriented policing” (the “COPS grant”), into a tool to

6 pressure states and localities to adopt the unrelated immigration policy preferences of the

7 Attorney General. In Fiscal Year (“FY”) 2017, that preference was for states and

8 localities to “partner” with federal immigration authorities, and otherwise participate in

9 enforcing federal civil immigration law (the “Challenged Considerations”). In future

10 years, if DOJ has this authority, the Attorney General might decide to favor states that

11 abolish the death penalty (or promise to impose it more frequently); or states that

12 strengthen (or relax) their gun laws; or states that criminalize (or legalize) marijuana.

13 The ways in which DOJ might, in the future, use an unrelated grant program to induce

14 sovereign states to change their laws and policies are limitless.

15

Congress did not silently grant such a power when it authorized DOJ to administer

16 a grant program for the hiring of state and local officers to engage in community policing.

17 Remarkably, after Los Angeles highlighted the sweeping implications of Defendants’

18 position, Defendants did not attempt to suggest any limit on what DOJ may do under the

19 guise of administering the COPS grant. Instead, they resorted to arguing against a straw

20 man: DOJ must have the power to favor or disfavor applicants on any grounds the

21 Attorney General pleases, or else DOJ would be reduced to selecting grant recipients by

22 random lottery. This hyperbole cannot be squared with the statute. Congress defined the

23 contours of the COPS program and left the agency administering it with substantial room

24 to exercise its judgment within the confines of that program and its purposes. It does not

25 follow that DOJ can use its control over the purse strings to pressure states and localities

26 to adopt unrelated laws and policies, or to divert grant funds to a purpose having nothing

27 to do with community-oriented policing.

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1

Rather than confront the City’s arguments, Defendants ignore or implicitly

2 concede them. For example, Defendants do not dispute that their interpretation of the

3 COPS statute would render superfluous the only provision in which Congress did

4 authorize DOJ to give preference to an applicant based on its adoption of policies

5 unrelated to the need for, or use of, COPS grant funds. See 34 U.S.C. § 10381(c)(2)-(3)

6 (permitting preferential consideration to be given to states with certain laws providing for

7 lenient treatment of human trafficking victims). That provision confirms that Congress

8 did not intend to empower DOJ to use COPS grants to obtain other unrelated policy

9 concessions from states and localities.

10

Defendants also do not provide an explanation for how combating illegal

11 immigration relates to Congress’s goal to fund community policing. They instead invoke

12 the “belie[f]” of the COPS Office (Defs.’ Br. 23) that illegal immigration is a public

13 safety issue. Even assuming arguendo that this “belie[f]” were based in fact—which it is

14 not—Congress did not create the COPS program to fund any kind of policing that relates

15 to an asserted public safety interest. The agency cannot disregard the express statutory

16 purpose of a grant program it is charged with administering, and Defendants offer no

17 explanation for why they may do so here.

18

Defendants also seek to insulate this usurpation of Legislative Branch authority

19 from review by the Judicial Branch. They claim the case is moot because, on the

20 unilateral declaration of a COPS Office employee, Los Angeles would not have received

21 a 2017 grant anyway. Defendants ask the Court to treat this representation as conclusive

22 despite admitting a material misrepresentation in their rush to make a similar claim in

23 response to the City’s application for a preliminary injunction, which ultimately caused

24 the City to withdraw that motion. More fundamentally, however, it does not matter what

25 would have happened in the 2017 grant cycle. Los Angeles plainly has standing to

26 challenge the competitive injury it suffered, and an annual grant program is the paradigm

27 case for the “capable of repetition, yet evading review” exception to mootness. There is

28 more than a reasonable expectation that Los Angeles will apply for another COPS

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1 grant—indeed, it intends to do so this year—and that DOJ will use improper

2 immigration-related considerations to disfavor the City. Defendants cannot benefit from

3 their misrepresentation—which eliminated any possibility of obtaining preliminary relief

4 for the 2017 grant cycle—and then use the short timeframe in which COPS funding is

5 applied for and granted to insulate from review their unlawful overreach of federal

6 agency authority.

7

The Court should therefore grant partial summary judgment to Plaintiff, deny

8 Defendants’ motion for partial summary judgment, and enter final judgment under

9 Federal Rule of Civil Procedure 54(b) in favor of Plaintiff on Counts Four, Five, and Six;

10 declare that Defendants’ actions are unlawful; and enjoin them from administering the

11 COPS program in this unlawful manner going forward.

12

ARGUMENT

13 I. 14
15
16

Defendants’ Attempt To Evade Judicial Review Fails.
A. Los Angeles Has Standing Because It Suffered Competitive Injury In The 2017 COPS Grant Cycle.
This is a case of competitive harm: the federal agency charged with awarding

17 grants consistent with a congressional statute, here DOJ, unlawfully favored Los

18 Angeles’ competitors for a federal grant, and the City sued to restore the competition to a

19 level, and lawful, playing field. “Such competitive injuries have often been recognized as

20 grounds for standing.” Bullfrog Films, Inc. v. Wick, 847 F.2d 502, 506 (9th Cir. 1988).

21 Thus, “when challenged agency conduct allegedly renders a person unable to fairly

22 compete for some benefit, that person has suffered a sufficient ‘injury in fact’ and has

23 standing.” Preston v. Heckler, 734 F.2d 1359, 1365 (9th Cir. 1984); see also Regents of

24 the Univ. of Cal. v. Bakke, 438 U.S. 265, 281 n.14 (1978).

25

In such cases, it is not necessary for the plaintiff to show that it would have

26 received the award, contract, or other benefit it sought but for the unfair disadvantage it 27 faced. “[T]he ‘injury in fact’ is the inability to compete on an equal footing in the 28 bidding process, not the loss of a contract” or other benefit. NE Fla. Chapter of

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1 Associated Gen. Contractors of America v. Jacksonville, 508 U.S. 656, 666 (1993); see

2 also Adarand Constructors, Inc. v. Pena, 515 U.S. 200, 211 (1995) (“[Plaintiff] need not

3 demonstrate that it has been, or will be, the low bidder on a Government contract. . . .

4 The aggrieved party ‘need not allege that he would have obtained the benefit but for the

5 barrier in order to establish standing.’” (internal citation omitted)); Coral Const. Co. v.

6 King Cty., 941 F.2d 910, 930 (9th Cir. 1991) (stating that a construction company

7 challenging a set-aside for women-owned businesses was injured “every time the

8 company simply places a bid”).

9

“The existence of standing turns on the facts as they existed at the time the plaintiff

10 filed the complaint.” Skaff v. Meridien N. Am. Beverly Hills, LLC, 506 F.3d 832, 838

11 (9th Cir. 2007). Los Angeles filed this lawsuit after DOJ announced that it would give

12 preferential treatment to COPS applicants based on unlawful considerations, and before

13 DOJ made awards on the basis of the Challenged Considerations. The City did not agree

14 to DOJ’s demands in order to receive the preferential treatment accorded to its

15 competitors, and so was forced to compete on an uneven playing field. This injury more

16 than suffices to establish the City’s standing.

17

B. The Case Is Not Moot.

18

Defendants offer no argument that the City’s competitive injury did not provide it

19 standing at the time it filed its complaint. Instead, Defendants argue that later

20 developments mooted the case: DOJ issued the 2017 COPS awards on November 20,

21 2017, Request for Judicial Notice (“RJN”) (ECF 49-3) Ex. H, Nov. Press Release, and—

22 according to the unilateral assertions of Defendants—the City would not have won an

23 award anyway. There are reasons to doubt Defendants’ representations at this stage of

24 the litigation, particularly since they have already admitted to making a misrepresentation

25 related to this question in an earlier filing. But the more fundamental point is that it does

26 not matter whether the illegal considerations made a difference in the City’s application

27 this year: DOJ’s use of impermissible criteria to make COPS awards is capable of

28

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1 repetition, and the short duration of the grant cycle means that it would inherently evade

2 review.

3

1. The “Capable of Repetition, Yet Evading Review” Doctrine

4

Applies.

5

There is a well-established exception to mootness where “(1) ‘the challenged

6 action [is] in its duration too short to be fully litigated prior to cessation or expiration,’

7 and (2) ‘there [is] a reasonable expectation that the same complaining party [will] be

8 subject to the same action again.’” Kingdomware Technologies, Inc. v. United States,

9 136 S. Ct. 1969, 1976 (2016) (quoting Spencer v. Kemna, 523 U.S. 1, 17 (1998)).

10 Agency actions lasting only one or two years evade judicial review as a matter of law.

11 See id. (“We have previously held that a period of two years is too short to complete

12 judicial review of the lawfulness of the procurement.”); see also Karuk Tribe of Cal. v.

13 U.S. Forest Serv., 681 F.3d 1006, 1017-18 (9th Cir. 2012) (“We have repeatedly held that

14 similar actions lasting only one or two years evade review.”). Since COPS grants are

15 awarded annually, see Decl. of Andrew Dorr ¶ 10 (ECF 53-1), DOJ’s unlawful

16 administration of those awards necessarily would evade review. See Wright & Miller,

17 Fed. Prac. & Proc. § 3533.8 (3d ed. 2017) (noting the “wide array of circumstances [that]

18 have led courts to deny mootness” as capable of repetition yet evading review, including

19 “disputes over the terms or awards of government contracts or grants [which] often

20 involve short contract periods and repeat bidders”).

21

In order to establish the second prong of the capable of repetition doctrine, all a

22 plaintiff must show is a “reasonable expectation,” rather than a “mere physical or

23 theoretical possibility,” that it will be subject to the challenged action in the future.

24 Murphy v. Hunt, 455 U.S. 478, 483 (1982). This standard is “not a very demanding one.”

25 Barilla v. Ervin, 886 F.2d 1514, 1520 (9th Cir. 1989), overruled on other grounds by

26 Simpson v. Lear Astronics Corp., 77 F.3d 1170, 1174 (9th Cir. 1996). The question is

27 simply “whether the controversy [is] capable of repetition and not . . . whether the

28 claimant ha[s] demonstrated that a recurrence of the dispute [is] more probable than not.”

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1 Honig v. Doe, 484 U.S. 305, 318 n.6 (1988). Indeed, the Supreme Court has found that

2 the exception to mootness applies when the plaintiff’s expectations of recurrence “were

3 hardly demonstrably probable.” Id. And it is Defendants that bear the “heavy burden of

4 persua[ding] the court that the challenged conduct cannot reasonably be expected to start

5 up again.” Friends of the Earth, Inc. v. Laidlaw Envtl. Servs. (TOC), Inc., 528 U.S. 167,

6 189 (2000).1

7

Los Angeles reasonably expects to suffer the same competitive disadvantage in

8 future grant cycles. Defendants insist that the COPS Office at DOJ has not yet decided

9 whether to use the same immigration-related factors in the FY 2018 process. Defs.’ Br.

10 12. But the use of such factors in grant decisions has been a loudly proclaimed priority of

11 the Attorney General as head of DOJ.2 DOJ’s announcement of this past year’s COPS

12 grants oddly said nothing at all about the community-oriented policing programs being

13 funded, but instead boasted of its success in persuading applicants to participate in civil

14 immigration enforcement. RJN, Ex. H, Nov. Press Release. Defendants cannot seriously

15 dispute that there is a reasonable expectation the same Attorney General could act on the

16 same priorities this year and in future years.

17

Defendants also claim that the City can have no reasonable expectation of its injury

18 recurring because it does not apply for the COPS grant every year. Defs.’ Br. 13. Los

19 Angeles has, however, applied for the grant for the past two years. Dorr Decl. ¶ 36.

20 Moreover, the City intends to apply for the COPS grant in the FY 2018 grant cycle.

21

22 1 Defendants’ reference to the “likelihood of future injury” standard for seeking

23

injunctive relief, Defs.’ Br. 12, is inapposite. The “capable of repetition” doctrine is an exception to this standard. When it applies, as it does here, it permits “suits for

24 prospective relief to go forward” based only on a “reasonable expectation” of future

25 injury. Lewis v. Continental Bank Corp., 494 U.S. 472, 481 (1990).

26

2 See, e.g., Attorney General Jeff Sessions Delivers Remarks on Sanctuary Jurisdictions, DOJ (March 27, 2017), https://www.justice.gov/opa/speech/attorney-general-jeff-

27 sessions-delivers-remarks-sanctuary-jurisdictions.

28

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1 Decl. of Stella Larracas ¶ 5. It is thus quite likely that Los Angeles will apply for the

2 COPS grant again and face a competitive disadvantage in doing so—more than satisfying

3 the “reasonable expectation” standard that does not even require a probability of future

4 injury.3

5

Finally, there is a strong public interest in application of the “capable of repetition

6 yet evading review” doctrine here. See Los Angeles Cty. v. Davis, 440 U.S. 625, 643

7 (1979); Alaska Fish & Wildlife Fed’n & Outdoor Council, Inc. v. Dunkle, 829 F.2d 933,

8 939 (9th Cir. 1987). If Los Angeles is correct that DOJ is making grant determinations in

9 an unconstitutional and unauthorized manner, the public has a profound interest in

10 ensuring that this overreach of DOJ authority be stopped for future grant cycles. But

11 Defendants would require judicial review to be confined to the narrow window of time

12 between the agency’s grant solicitation and announcement of awards. Los Angeles

13 attempted just that; there was no possibility of fully litigating the case during the window,

14 and the City was persuaded to withdraw its request for a preliminary injunction by what

15 turned out to be misrepresentations by DOJ. See infra I.B.2. The dubious manner in

16 which Defendants induced the City to abandon its request for emergency relief for the FY

17 2017 cycle only underscores the importance of resolving the legality of Defendants’

18 actions going forward.

19

20

21

22

23 3 Although it is sufficiently likely that Los Angeles will apply for a COPS grant in FY

24 2018, Defendants are wrong to focus on whether the City’s future injury will recur in the

25

coming year. See Wolfson v. Brammer, 616 F.3d 1045, 1054-55 (9th Cir. 2010) (election law challenge by former candidate not moot where the candidate intended to run again in

26 the future, but not “in the next election”). Even if the City’s historical record of applying

27

for the COPS grant 39% of the time were assumed to be predictive, that would almost certainly mean that the City will apply for a COPS grant again during the present

28 Administration.

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1

2. Defendants Are Not Entitled To Summary Judgment On The

2

Question Of Whether Los Angeles Would Have Received A FY

2017 Award.

3

For the reasons explained above, the City plainly has a basis to seek prospective

4 relief; whether or not Los Angeles actually lost funding in the 2017 grant cycle due to use

5 of the illegal immigration factors is irrelevant. But if that question were relevant, it could 6 not be resolved against the City on summary judgment.

7

When the City moved for a preliminary injunction, a DOJ official claimed under

8 penalty of perjury that no applicant that selected “Illegal Immigration” as a focus area

9 scored high enough to receive further consideration. Decl. of Andrew Dorr ¶ 24 (ECF

10 33-1), Opp. to Pl.’s Mot. for Preliminary Injunction. Defendants evidently considered

11 this “fact” relevant to their ultimate point: that Los Angeles allegedly would not receive

12 an award regardless of the use of immigration-related factors, which persuaded the City

13 to withdraw its application. But Defendants’ representation, which it has now been

14 revealed was made before the scoring process was complete, turns out to have been false,

15 as Defendants now admit. Defs.’ Br. 8 n.3; Dorr Decl. ¶ 35 n.5 (ECF 53-1). The same

16 declarant, having retracted part of his earlier statement, still maintains that Los Angeles

17 did not lose an award on account of the Challenged Considerations. Dorr Decl. ¶ 27

18 (ECF 53-1). Perhaps so, but Defendants cannot reasonably expect the claims of an

19 admittedly unreliable declarant to carry the day on summary judgment without any

20 discovery, especially when the COPS Office’s scoring data show that $8.5 million in FY

21 2017 funding was awarded to jurisdictions that scored lower than Los Angeles but for

22 bonuses resulting from the Challenged Considerations. Dorr Decl. Ex. C & D (ECF 53-

23 1) (specifically those large population agencies identified as “999,” “Laredo, City of,”

24 “650,” “1029,” “889,” and “929”). Before judgment could be granted in favor of

25 Defendants, the City would need the opportunity for discovery on, among other things,

26 how the COPS Office calculated its scores and the factors affecting Los Angeles’ ability

27 to receive a COPS grant. To be clear, no discovery is necessary for the Court to grant the

28

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1 City’s motion for summary judgment for the reasons explained above, but Defendants are

2 not entitled to summary judgment in their favor based on what they claim happened

3 during the 2017 grant process on the current state of the record.

4 II. Plaintiff Is Entitled To Judgment As A Matter of Law.

5

This Court should grant Los Angeles’ motion for partial summary judgment, and

6 deny Defendants’ motion, because the Challenged Considerations are ultra vires, violate

7 the Spending Clause, and are arbitrary and capricious under the Administrative Procedure

8 Act (“APA”).

9

A. The Challenged Considerations Are Ultra Vires.

10

In enacting the COPS program, Congress delegated authority to DOJ for a specific

11 purpose: to fund states and localities in the hiring and rehiring of law enforcement

12 officers for “deployment in community-oriented policing.” 34 U.S.C. § 10381(b)(1), (2).

13 Defendants acknowledge this statutory purpose. Defs.’ Br. 4. And although they ignore

14 it, they do not contest the basic principle that “[w]hen Congress limits the purpose for

15 which a grant can be made, it can be presumed that it intends that the dispersing agency

16 makes its allocations based on factors solely related to the goal of implementing the

17 stated statutory purposes in a reasonable fashion, rather than taking irrelevant or

18 impermissible factors into account.” Robbins v. Reagan, 780 F.2d 37, 48 (D.C. Cir.

19 1985) (emphasis added); see Pl.’s Br. 1-12.

20

DOJ refuses to recognize that this inherent limit on Congress’s delegation binds

21 the agency, instead insisting on its prerogative to make award determinations based on

22 impermissible factors untethered to the statutory purpose. First, DOJ is providing

23 preferential treatment to states and localities that certify “partnership” with federal civil

24 immigration authorities, in the form of particular laws, regulations, or policies the

25 jurisdiction has in place (the “Notice and Access requirements”)—despite the fact that

26 such partnership is unrelated to the need for, or use of, COPS funds. Second, DOJ is

27 awarding bonus points to, and authorizing COPS funds to be used by, state and local law

28

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1 enforcement agencies that are willing to use grant money to focus on “Illegal

2 Immigration,” diverting COPS funds to federal immigration enforcement and away from

3 their statutorily authorized purpose of state and local community policing.

4

DOJ thus has structured the COPS grant process to incentivize states and local

5 communities to change their laws and regulations to fit DOJ policy preferences, and to

6 “focus” grant funds on matters having nothing to do with the statutory purpose of the

7 grant program created by Congress. Strikingly, when confronted with the extraordinary

8 implications of their position, see Pl.’s Br. 15-16, Defendants do not deny them. DOJ

9 admits by its silence that it could use the COPS grant program to pressure states to

10 abolish (or impose) capital punishment, to crack down on (or legalize) marijuana, to

11 restrict (or expand) gun rights, and more. Indeed, if Defendants prevail here, a later

12 Administration could decide to punish COPS applicants from states that have non-

13 preempted anti-immigration laws. Cf. Chamber of Commerce of U.S. v. Whiting, 563

14 U.S. 582 (2011).

15

Rather than explain how Congress could have meant to delegate so much authority

16 sub silentio, Defendants attack a straw man. If DOJ does not have complete discretion to

17 make grant decisions based on any factor, they assert, the agency would be reduced to

18 “choos[ing] the winning applicants via random lottery.” Defs.’ Br. 15. That is plainly

19 not what the City is suggesting. Congress delegated ample discretion for DOJ to make

20 grant decisions based on its evaluation of the applicants’ need for, and proposed use of,

21 grant funds, viewed in light of the significant guidance Congress provided on the purpose

22 of the grant it authorized and what an applicant should include in its application. It does

23 not follow that DOJ may hijack the COPS program to promote the Attorney General’s

24 own unrelated policy agenda. The agency’s attempt to do so here is ultra vires.

25

26

27

28

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1

1. DOJ Lacks Statutory Authority To Use The COPS Program To

2

Pressure States And Local Communities To Change Laws,

Regulations, And Policies Unrelated To The Program As Created

3

By Congress.

4

Defendants do not seriously dispute that the Notice and Access requirements are

5 unrelated to a state’s or locality’s need for, or use of, COPS funds. See Pl.’s Br. 12-13.

6 This concession establishes that the agency lacks authority to structure the grant program

7 to disfavor communities that are unwilling or unable to certify to these forms of

8 “partnership” with federal civil immigration authorities. See Robbins, 780 F.2d at 48.

9

The text and structure of the statute confirm that using the grant process to promote

10 changes to unrelated local laws and policies was not authorized by Congress. Rather,

11 Congress authorized DOJ to use COPS funds to encourage states and localities to change

12 their laws unrelated to the need for, or use of, COPS funds in only one area: laws on

13 human trafficking victims. See 34 U.S.C. § 10381(c)(2)-(3). Specifically, the statute

14 provides that DOJ “may” give “preferential consideration” to COPS applicants from

15 states that adopt certain laws granting leniency to victims of human trafficking. Id. But

16 in Defendants’ view, DOJ has inherent authority to give preferential consideration to

17 state and local governments that adopt any law or regulation the agency wishes to

18 promote. If DOJ has this broad power, there would have been no reason for Congress to

19 authorize one narrow use of such authority. Defendants do not even attempt to deny that

20 their reading of the statute would make subsection (c) superfluous.

21

Instead, Defendants note that the subsection (c) considerations are “not

22 mandatory.” Defs.’ Br. 16. That does not help Defendants—it proves the City’s point.

23 If the statutory baseline were that DOJ is permitted to favor COPS applicants based on

24 any unrelated laws and regulations, it would not have been superfluous for Congress to

25 require the agency to favor applicants with respect to one such area, i.e., laws that protect

26 victims of human trafficking. But that is not what subsection (c) does, as DOJ

27 recognizes. By enacting that provision as “discretionary,” Defs.’ Br. 16, Congress

28

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1 recognized that without it, DOJ lacked the discretion to favor or disfavor applicants based

2 on their laws and regulations.

3

Defendants next insist that if subsection (c) means what it says, DOJ would be able

4 to consider only whether an applicant has the preferred laws against human trafficking in

5 place, and otherwise would have to draw lots to make grant awards. See Defs.’ Br. 16 &

6 n.6. This is a straw man. DOJ has ample discretion to weigh an applicant’s need for

7 COPS funds, and its proposed use of such funds. See infra II.A.3. Recognizing that DOJ

8 cannot generally give preferential treatment based on applicants’ unrelated laws and

9 policies hardly turns grant determinations into a lottery.

10

Without any express statutory authority allowing them to use COPS grants to

11 promote their preferred state and local laws and policies concerning federal civil

12 immigration enforcement, Defendants invert separation of powers principles. They insist

13 that they must have authority to use the federal grant program to induce state and local

14 policy changes, because “nothing in the governing statutes or case law prohibits DOJ

15 from” doing so. Defs.’ Br. 19 (emphasis added). That is backwards: it is fundamental

16 that courts will not “presume a delegation of power absent an express withholding of

17 such power,” or else “agencies would enjoy virtually limitless hegemony.” Ry. Labor

18 Execs. Ass’n v. Nat’l Mediation Bd., 29 F.3d 655, 671 (D.C. Cir. 1994) (en banc) (as

19 amended).

20

Even more brazenly, Defendants distort the Supreme Court’s seminal Spending

21 Clause decision in South Dakota v. Dole, 483 U.S. 203 (1987), describing it as follows:

22 “the Supreme Court has made clear that a federal agency can use grant conditions as a

23 ‘relatively mild encouragement’ for States and localities to change their laws and

24 policies.” Defs.’ Br. 19 (quoting Dole, 483 U.S. at 211) (emphasis added). What Dole

25 actually says is that Congress can use federal grants to encourage states to change their

26 laws and policies. See Dole, 483 U.S. at 208 (addressing a “condition imposed by

27 Congress”). It is revealing that Defendants conflate the authority of Congress and that of

28 a federal agency.

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1

Indeed, the difference between what Congress may do and what an agency may do

2 is critical here, where federalism concerns are paramount. When federalism is at stake,

3 Congress—not an agency—must supply a clear statement of its intentions to encroach on

4 traditional state and local prerogatives. See Gregory v. Ashcroft, 501 U.S. 452, 461

5 (1991). The en banc Fourth Circuit held that the Gregory “clear statement rule” applies

6 when an agency attempts to use the terms of a grant to pressure states and localities to

7 change their laws and policies. See Com. Va., Dep’t of Educ. v. Riley, 106 F.3d 559, 566-

8 67 (4th Cir. 1997) (en banc) (adopting the dissenting panel opinion of Luttig, J.),

9 superseded by statute; Pl.’s Br. 14. Although Defendants assert that Gregory “does not

10 apply” in such circumstances, Defs.’ Br. 19, they do not mention the en banc court of

11 appeals decision that disagrees with their view. Congress itself provided a clear

12 statement to authorize DOJ to give preference to applicants based on their state and local

13 laws against human trafficking, see 34 U.S.C. § 10381(c)(2), (3); there is no such clear

14 statement authorizing DOJ to do the same with respect to civil immigration enforcement.

15

The broader statutory scheme makes it even clearer that Congress did not intend

16 for DOJ to use COPS funds to extract unrelated policy concessions from states and

17 localities related to their state and local law enforcement operations. Section 10228

18 prohibits federal agencies from “exercis[ing] any direction, supervision, or control over

19 any police force or any other criminal justice agency of any State or any political

20 subdivision thereof.” See Pl.’s Br. 14-15 (emphasis added). Congress enacted section

21 10228 to prevent exactly what DOJ seeks to do here—exercise “control over . . . ‘vital

22 matters pertaining to the day-to-day operations of local law enforcement.’” Ely v. Velde,

23 451 F.2d 1130, 1136 (4th Cir. 1971) (quoting S. Rep. No. 90-1097 at 222 (1968))

24 (discussing 42 U.S.C. § 3766(a), an earlier version of section 10228(a)). Congress was

25 not just worried about literal mandates, but the use of “federal assistance to state and

26 local law enforcement” as a “vehicle for the imposition of federal guidelines” on such

27 agencies. S. Rep. No. 90-1097, 1968 U.S.C.C.A.N. 2112, 2276 (1968) (views of

28 Senators Dirksen, Hruska, Scott, and Thurmond). And the Department of Justice,

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1 supporting an earlier proposed version of section 10228(a), agreed that it would violate

2 both “the mandate and spirit” of the provision to withhold funds because police

3 departments were not run “the way the Attorney General says they must” be run.4

4

Defendants brush the text and purpose of section 10228(a) aside by claiming that

5 they are only “encouraging cooperation with federal authorities,” Defs.’ Br. 18, but this

6 “cooperation” is functionally a direction for how local law enforcement ought to

7 function. Specifically, DOJ uses its control over valuable federal funds to “encourage”

8 state and local governments to certify that they have specific laws or policies in place

9 governing who may enter their detention facilities and what their state and local law

10 enforcement personnel must do. See Pl.’s Br. 7. If Defendants mean to suggest that this

11 is not “direction, supervision, or control” because DOJ is only pressuring, not mandating,

12 states and localities to make these certifications, that is entirely at odds with the

13 congressional purpose of preventing federal grants from being a vehicle to change state

14 and local law enforcement operations. It also would make section 10228 the second

15 statutory provision Defendants would make a nullity, doing nothing but reiterating the

16 Tenth Amendment anti-commandeering rule.5

17

“If Congress has not unequivocally conditioned receipt of federal funds in the

18 manner claimed by the [agency], . . . then [the] inquiry is at an end.” Riley, 106 F.3d at

19 566. Here, not only is there no such clear statement, but every indication on the face of

20

21

22

4 Controlling Crime Through More Effective Law Enforcement: Hearings Before the Subcomm. on Criminal Laws and Procedure of the S. Comm. on the Judiciary, 90th

23 Cong. at 100, 384, 497 (1967).

24 5 Defendants stray even further afield with a reference to 34 U.S.C. § 10122(c)(2)(F),

25

which they claim reflects an interest in promoting “cooperation among the Federal Government, States, and units of local government.” Defs.’ Br. 18 (quoting a portion of

26 § 10122(c)(2)(F)). Defendants neglect to quote the text that immediately follows, which

27

makes clear that the statute is concerned with promoting cooperation to address “whitecollar crime and public corruption.” 34 U.S.C. § 10122(c)(2)(F). That statute could not

28 have less relevance here.

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1 the statute points in the opposite direction. Congress did not intend to authorize DOJ to

2 disfavor COPS grant applicants if they were not willing to adopt unrelated laws or

3 policies. DOJ’s preferential treatment for COPS applicants that are willing to certify to

4 their immigration “partnership” is therefore unlawful.

5

2. DOJ Cannot Divert Funds That Congress Designated For

6

Community Policing To Federal Civil Immigration Enforcement.

7

DOJ is also awarding “bonus points” to applicants who promise to focus their use

8 of grant funds on “Illegal Immigration” by “propos[ing] ways to contribute to combatting

9 illegal immigration,” Defs.’ Br. 1. Congress, however, authorized DOJ to provide funds

10 to states and localities under the COPS program for the hiring, or rehiring, of state and

11 local law enforcement officers for “deployment in community-oriented policing.” 34

12 U.S.C. § 10381(b)(1), (2). Nowhere in their brief do Defendants explain how Congress’s

13 objective of funding the hiring of state and local officers to engage in “community-

14 oriented policing” has anything to do with such officers partnering with federal officials

15 to enforce federal civil immigration law. That is a tacit admission by Defendants that

16 they are acting ultra vires.

17

DOJ’s attempt to funnel COPS funds to an area that is “unquestionably exclusively

18 a federal power,” DeCanas v. Bica, 424 U.S. 351, 354 (1976), does not advance

19 “community-oriented policing.” Community policing, the COPS Office itself explains,

20 “begins with a commitment to building trust and mutual respect between police and

21 communities.” RJN Ex. A, “About.” The types of activities funded through the “Illegal

22 Immigration” focus area do not involve the local community at all; they require

23 partnership between local law enforcement and federal immigration authorities. See RJN

24 Ex. F, DOJ FY 2018 COPS Office Congressional Justification at 31 (characterizing the

25 “Illegal Immigration” focus area as “[p]artnering with federal law enforcement”); Defs.’

26 Br. 18 (observing that, apart from a formal agreement with the federal government, state

27 and local officers can assist in federal immigration enforcement by “providing [federal

28 authorities] access to aliens they have detained or informing federal authorities of the

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1 impending release of such persons”). Congress was not seeking to “build[] trust”

2 between local police and federal immigration officials; its intent, as DOJ recognizes

3 outside the context of this litigation, was to improve relationships between local police

4 and the communities they serve.

5

The closest Defendants come to a defense of this scoring factor is to insist that “the

6 intersection of illegal immigration and crime is a serious public safety issue that can

7 helpfully be addressed through ‘cooperative efforts’ among federal, state, and local law

8 enforcement.” Defs.’ Br. 23. This premise is unsupported, but it is also irrelevant: the

9 fact that something is a “public safety issue” does not mean it is a “community-oriented

10 policing issue.” All policing has to do with public safety, but Congress did not authorize

11 COPS funds to hire officers for “deployment in policing” generally.

12

Defendants also twist the words of the statute to suggest that Congress intended to

13 promote cooperation between federal and local law enforcement. Defs.’ Br. 23 (citing

14 Pub. L. No. 103-322). The “cooperation” Congress intended to promote is quite clearly

15 “cooperative efforts between law enforcement agencies and members of the community.”

16 Pub. L. No. 103-322 (emphasis added). Cooperation among federal, state, and local law

17 enforcement is not cooperation “between law enforcement agencies and members of the

18 community.”

19

In fact, the types of “cooperation” that DOJ encourages would likely damage the

20 cooperation between local law enforcement and the community that Congress intended to

21 support. Through the COPS grant, DOJ has offered to sponsor 287(g) partnerships, in

22 which state and local law enforcement officers act as federal immigration officers. See 8

23 U.S.C. § 1357(g). As Los Angeles explained, and Defendants do not dispute, local law

24 enforcement officers “[c]arrying out civil immigration raids in support of federal

25 enforcement efforts bears no logical connection” to community policing. Pl.’s Br. 17.

26 DOJ’s preference for applicants that will use grant funds to honor federal detainer

27 requests for certain immigrants, see Dorr Decl. ¶ 24, is likewise unrelated to community

28 policing. In fact, this practice has led to municipality liability due to Fourth Amendment

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1 violations—hardly the type of police-community relationship that Congress intended.

2 See Pl.’s Br. 17 (collecting cases).

3

DOJ’s interpretation of its authority disregards not only the COPS statute, but also

4 federal immigration law. As Los Angeles previously explained, Pl.’s Br. 18, DOJ’s

5 funding of local officers to serve as federal immigration officers in 287(g) partnerships

6 violates Congress’s directive that such partnerships be undertaken “at the expense of the

7 State or political subdivision.” 8 U.S.C. § 1357(g)(1). Defendants’ sole response is that

8 “any funds awarded under a CHP grant would have to be used to hire or rehire officers

9 pursuant to the requirements of the Program, not for any state or local expenses of a

10 287(g) agreement.” Defs.’ Br. 18 n.8. But they do not deny that DOJ will be funding the

11 hiring of state and local officers to engage in immigration enforcement under 287(g)

12 agreements. And the Department of Homeland Security has made clear that “expenses”

13 under such an agreement include the “salaries” of personnel.6 Thus, it is clear that DOJ is

14 using COPS funds to pay the salaries of state and local officers in 287(g) partnerships,

15 and in doing so, violating Congress’s prohibition against federal funding of those

16 partnerships.

17

By favoring applicants that adopt “Illegal Immigration” as a focus area, DOJ is

18 acting without statutory authority, diverting COPS funds from their authorized statutory

19 purpose, and punishing applicants that seek COPS funds for programs that are actually

20 related to community-oriented policing.

21

3. The Choice Before The Court Is Not Unfettered Agency Power Or

22

Grant Awards Chosen By Lottery.

23

Unable to explain how Congress authorized the immigration-related factors that

24 DOJ has made the centerpiece of the COPS program, Defendants resort to hyperbole. In

25

26

27 6 See Memorandum of Understanding, available at https://www.ice.gov/doclib/detention28 reform/pdf/287g_moa.pdf (emphasis added).

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1 their telling, if DOJ lacks the expansive authority they claim, COPS awards would have

2 to be allocated randomly. See Defs.’ Br. 15. That is nonsense.

3

It is of course permissible for DOJ to consider a community’s crime-fighting needs

4 in determining which applicants should receive funds to hire officers to engage in

5 community-oriented policing. Congress specifically required COPS applicants to

6 “demonstrate a specific public safety need” related to community policing, 34 U.S.C.

7 § 10382(c)(2); see also id. § 10382(c)(10) (applicant must “explain how the grant will be

8 utilized to reorient the affected law enforcement agency’s mission toward community-

9 oriented policing or enhance its involvement in or commitment to community-oriented

10 policing”). This necessarily means Congress expected DOJ to consider those public

11 safety needs. And having been delegated authority to evaluate applications in part on the

12 basis of public safety needs, DOJ can reasonably “prioritiz[e] different areas of public

13 safety from year to year,” so long as they can be addressed by community policing.

14 Defs.’ Br. 16. Likewise, since Congress provided DOJ the authority to issue grants for

15 use in community-oriented policing, and required applicants to explain how any grant

16 funds they receive will do so, see 34 U.S.C. § 10382(c)(10), the agency can plainly make

17 discretionary judgments about which grant proposals best serve that purpose. These

18 factors alone leave DOJ with substantial discretion; the fact that this discretion is not

19 limitless does not mean that the agency must conduct a lottery.

20

Defendants also note various considerations DOJ has used in the past to award

21 bonus points, asserting that every one of them would fail under the City’s approach.

22 Those considerations are not before the Court and there is no need for the Court to opine

23 on them; if an applicant is aggrieved by a particular scoring factor and believes it is

24 unlawful, that applicant is free to bring its own challenge. But the past considerations

25 DOJ has identified are consistent with the COPS authorizing statute—unlike its novel

26 immigration-related considerations.

27

For example, Defendants suggest that if the City prevails, DOJ could not award

28 additional consideration to jurisdictions “that have recently experienced a catastrophic

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1 event.” Defs.’ Br. 16. But as Defendants’ own declarant explains, the purpose of this

2 consideration is to favor applicants that have experienced “tragedies or disasters

3 impacting law enforcement.” Dorr Decl. ¶ 18 (emphasis added). It is consistent with the

4 statutory text and intent of Congress for DOJ to consider an event that negatively impacts

5 law enforcement resources for community policing as part of the applicant’s public safety

6 need and its “inability to address the need without Federal assistance,” 34 U.S.C.

7 § 10382(c)(3). Jurisdictions suffering from a catastrophic event can be expected to divert

8 resources to respond to the tragedy and away from community policing, so ensuring that

9 COPS funds are available to help make up the difference is eminently reasonable. Other

10 considerations Defendants note—for flexibility in shift assignments and an “early

11 intervention system” for officers showing signs of stress, see Defs.’ Br. 19—have

12 everything to do with the statutory purpose of hiring officers for community-oriented

13 policing. Indeed, the consequences to police-community relations of not timely

14 identifying officers under stress are all too real.7

15

Even if, for the sake of argument, DOJ had pushed the boundaries of its delegated

16 authority in the past, there is no risk that a ruling for Los Angeles would broadly

17 undermine the way DOJ has historically administered the COPS program. DOJ’s

18 immigration-related considerations, which have no mooring in the statutory purpose of

19 the grant and are contradicted by the direction Congress provided, are a new and

20 unlawful invention by the Attorney General.

21

22

23

7 Defendants also observe that DOJ gave additional consideration for the hiring of military veterans before Congress authorized the agency to “prioritiz[e] the hiring and

24 training of veterans,” 34 U.S.C. § 10381(b)(2). Defs.’ Br. 7. This consideration had to

25

do with the hiring of officers, which is at the core of the statutory grant authorization. Moreover, if any inference is to be drawn from Congress’s codification of this factor, it is

26 that Congress was concerned that DOJ did not have sufficient authorization for it without

27

a more specific enactment. Cf. Schism v. United States, 316 F.3d 1259, 1289 (Fed. Cir. 2002) (noting that Congress may act to ratify action that was “unauthorized when taken”

28 (emphasis added)).

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1

B. The Challenged Considerations Violate The Spending Clause Because

2

Defendants Cannot Identify Any Reasonable Relationship They Bear To

The Community Policing Purpose Of The COPS Program.

3

A state’s or locality’s willingness to certify compliance with the Notice and Access

4 requirements, or to use COPS funds to participate in civil immigration enforcement,

5 made a significant difference in the applicant’s ability to compete for federal funds. See 6 Dorr Decl. ¶ 35. In fact, in some cases, these were the dispositive factors in whether a

7 jurisdiction received a grant. Id.; see also id. (stating that 19 out of 30 successful large 8 jurisdictions and 124 out of 149 successful small jurisdictions complied with the Notice

9 and Access requirements). When DOJ announced the 2017 awards, it even boasted about

10 how effective these inducements were. RJN Ex. H, Nov. Press Release. The Challenged

11 Considerations thus operate as terms or conditions on the receipt of COPS funds, and so

12 must comply with constitutional restrictions on funding conditions.

13

The Supreme Court has clearly established that congressional conditions on the

14 receipt of federal funds “must . . . bear some relationship to the purpose of the federal

15 spending.” New York v. United States, 505 U.S. 144, 167 (1992). As discussed above, 16 Congress did not delegate DOJ authority to impose conditions related to immigration

17 enforcement on COPS grants. But even if DOJ had authority to use the Challenged

18 Considerations, they violate the Spending Clause’s requirement that conditions be

19 “reasonably related” to the purposes of the grant program, Nevada v. Skinner, 884 F.2d 20 445, 447 (9th Cir. 1989), because enforcement of federal civil immigration laws is

21 unrelated to the COPS grant’s purpose of promoting community-oriented policing.

22 Defendants offer no serious argument to the contrary.

23

Community-oriented policing, in DOJ’s own words, entails “developing

24 partnerships between law enforcement agencies and the communities they serve.” RJN 25 Ex. F, DOJ FY 2018 COPS Office Congressional Justification at 4 (emphasis added); see 26 also RJN Ex. A, “About,” (“Community policing begins with a commitment to building 27 trust and mutual respect between police and communities.”). It is not, as DOJ contends

28

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1 for the first time here, about developing partnerships between state and local law

2 enforcement and the federal government. Defs.’ Br. 23. DOJ attempts to argue that

3 enforcement of federal civil immigration law is reasonably related to state and local law

4 enforcement by asserting that enforcement of federal immigration law “makes

5 communities safer.” Id. This argument is itself unsupportable, see Philadelphia v.

6 Sessions, 2017 WL 5489476 at *48 (E.D. Pa. Nov. 15, 2017) (“Immigration law has

7 nothing to do with the enforcement of local criminal laws.”), appeal filed (3d Cir. Jan. 18,

8 2018), but more importantly, DOJ makes no argument as to how mandating state and

9 local enforcement of federal immigration law is related to community policing. DOJ’s

10 only way to show that its considerations relate to the statutory purpose is to read the

11 words “community-oriented” out of the statute, and treat the purpose of the grant as

12 anything related to “policing.” See supra II.A.2. But federal agencies are bound by the

13 statutes that Congress enacts. Because the Challenged Considerations have no

14 relationship to “community-oriented policing,” they cannot pass muster under the

15 Spending Clause.

16

The unrelated provisions of the Immigration and Nationality Act which DOJ cites

17 as evidence of congressional intent to involve states and localities in enforcement of

18 federal civil immigration laws, Defs.’ Br. 23, provide no better support for their

19 contention that federal civil immigration enforcement is related to community policing.

20 Rather, they show that when Congress intended to include state and local governments in

21 federal immigration enforcement, it authorized such participation explicitly—belying the

22 contention that immigration enforcement should be generally considered related to state

23 and local policing. Because the Challenged Considerations are unrelated to—and if

24 anything may actively undermine—the goals of community policing, they violate the

25 relatedness prong of the Spending Clause.

26

C. The Challenged Considerations Are Arbitrary And Capricious.

27

DOJ’s adoption of the Challenged Considerations was arbitrary and capricious in

28 violation of the APA, 5 U.S.C. § 706(2)(A), because the agency failed to

21
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Case 2:17-cv-07215-R-JC Document 59 Filed 01/29/18 Page 29 of 33 Page ID #:2093

1 contemporaneously articulate a “reasonable basis . . . for the decision.” Alaska Oil &

2 Gas Ass’n v. Jewell, 815 F.3d 544, 554 (9th Cir. 2016).

3

Even if it were possible for conditions requiring state and local enforcement of

4 federal civil immigration laws to be related to community policing, DOJ at no point

5 explains how the Challenged Considerations are related to the goals of the COPS statute

6 as enacted by Congress. It thus entirely failed to “articulate[] a rational connection

7 between the facts found and the choice made.” Az. Cattle Growers’ Ass’n v. U.S. Fish & 8 Wildlife, Bureau of Land Mgmt., 273 F.3d 1229, 1236 (9th Cir. 2001). In its brief, 9 Defendants do not point to any instance on the record in which DOJ or Attorney General

10 Sessions explained the connection between the immigration factors and community

11 policing, instead stating that, “[n]othing in the statutes governing CHP suggests DOJ

12 should not consider the extent to which a jurisdiction cooperates in the enforcement of 13 immigration law . . . .” Defs.’ Br. 24-25 (emphasis added). As the City argues above, the

14 immigration conditions are in fact inconsistent with the COPS statute. But even if they

15 were not, the APA demands more than that agency action not be clearly inconsistent with

16 the text of a statute; it requires that the agency contemporaneously explain the basis for

17 its decisions. See Pacific Coast Fed’n of Fishermen’s Ass’ns v. U.S. Bureau of 18 Reclamation, 426 F.3d 1082, 1091 (9th Cir. 2005) (“It is a basic principle of 19 administrative law that the agency must articulate the reason or reasons for its

20 decision.”). DOJ failed to do so, and Defendants’ brief does not argue otherwise.

21

DOJ also misunderstands the City’s reliance on studies showing either no

22 relationship, or an inverse relationship between so-called “sanctuary” policies and violent

23 crime. See Pl.’s Br. 22. The point is not that the City has identified studies supporting a 24 “difference in view” from DOJ. Defs.’ Br. 25. It is that the Attorney General identified 25 these studies as supporting his actions, but misread them—according to their authors. 26 See Pl.’s Br. 22. (citing ECF 49-3, Ex. C). When an agency acts on the basis of evidence 27 that means the opposite of what it says, that is arbitrary and capricious. Cf. Defenders of 28 Wildlife v. Jewell, 176 F. Supp. 3d 975, 1004 (D. Mont. 2016) (holding that an agency

22
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Case 2:17-cv-07215-R-JC Document 59 Filed 01/29/18 Page 30 of 33 Page ID #:2094

1 decision relying on “an implausible misinterpretation [of a study] that runs counter to

2 [its] intent” was “arbitrary and capricious”). Los Angeles is not challenging a policy

3 disagreement, but an agency decision that is not supported by the very evidence it cites,

4 and so lacks a rational basis.

5 III. An Injunction Barring Defendants From Using The Invalid Considerations Is

6

Appropriate.

7

This Court may issue what Defendants term a “nationwide” injunction, meaning an

8 injunction that prevents Defendants from continuing to act unlawfully with respect to

9 everyone but the Plaintiff here. See, e.g., Califano v. Yamasaki, 442 U.S. 682, 702

10 (1979) (“nationwide” injunction appropriate where “necessary to provide complete relief

11 to the plaintiffs”). Indeed, both the Ninth and Fifth Circuits recently affirmed a broad

12 injunction against an Executive Branch action in all its applications, including as to

13 affected individuals not party to the case. Washington v. Trump, 847 F.3d 1151, 1166-67

14 (9th Cir. 2017); see also Texas v. United States, 809 F.3d 134 (5th Cir. 2015), aff’d by an

15 equally divided court, 136 S. Ct. 2271 (2016) (affirming a broad injunction against a

16 federal immigration policy in all its applications and not limited to the plaintiffs before

17 the court). An injunction that prevents DOJ from applying its unlawful policy is

18 particularly necessary here because DOJ’s preferential treatment of COPS applicants who

19 adopt DOJ’s preferred immigration policies over those, like Los Angeles, who do not, is

20 invalid on its face. See, e.g., Decker v. O’Donnell, 661 F.2d 598, 617-18 (7th Cir. 1980)

21 (affirming nationwide injunction in case of facial challenge to legality of agency

22 regulation); Santa Clara v. Trump, 2017 WL 5569835, at *17 (N.D. Cal. Nov. 20, 2017),

23 appeal filed (9th Cir. Dec. 14, 2017).

24

Defendants suggest in one sentence in a footnote that “any injunction should be

25 limited to the plaintiff rather than applying to all CHP applicants.” Defs.’ Br. 11 n.4.

26 Apart from the absence of any actual argument supporting their position, Defendants fail

27 to explain how an injunction could be tailored only to Los Angeles when the issue is

28 DOJ’s preferential treatment of other applicants. See Washington, 847 F.3d at 1167

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Case 2:17-cv-07215-R-JC Document 59 Filed 01/29/18 Page 31 of 33 Page ID #:2095

1 (nationwide relief appropriate where government had not proposed a workable alternative

2 form that would remedy the violation). The City is not injured because it loses points

3 itself, but because its competitors are unlawfully given extra points. Los Angeles’

4 request for an even playing field for COPS applicants necessarily requires across-the-

5 board relief. Cf. Easyriders Freedom F.I.G.H.T. v. Hannigan, 92 F.3d 1486, 1501-02

6 (9th Cir. 1996) (“[A]n injunction is not necessarily made overbroad by extending benefit

7 or protection to persons other than prevailing parties in the lawsuit—even if it is not a

8 class action—if such breadth is necessary to give prevailing parties the relief to which

9 they are entitled.” (citation and emphasis omitted)); Bresgal v. Brock, 843 F.2d 1163,

10 1171 (9th Cir. 1987) (affirming nationwide relief where “the district court could hardly

11 require enforcement of the [statute] on anything other than a nationwide basis”).

12 Accordingly, this Court should issue an injunction prohibiting DOJ from using the

13 Challenged Considerations in making COPS grant determinations in future grant cycles.

14

CONCLUSION

15

For the foregoing reasons, the Court should grant partial summary judgment to the

16 City of Los Angeles as to each of its claims concerning the COPS grant program (Counts

17 Four, Five, and Six), deny Defendants’ motion for partial summary judgment, and enter

18 final judgment pursuant to Rule 54(b) on those claims. The Court should declare that the

19 Challenged Considerations are (1) ultra vires and a violation of the Separation of Powers,

20 (2) in violation of the Spending Clause, and (3) an arbitrary and capricious agency action

21 in violation of the APA. The Court should further enjoin Defendants from using the

22 Challenged Considerations in making COPS grant determinations in future grant cycles.

23

24

25

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1

CERTIFICATE OF SERVICE

2

I hereby certify that on this 29th day of January, 2018, the within document and its

3 attachments were electronically filed with the Clerk of the Court using the CM/ECF

4 system and will be sent electronically to the registered participants as identified on the

5 Notice of Electronic Filing (NEF), pursuant to Local Rule 5-3.2.

6

7

/s/ Mitchell A. Kamin

8

Mitchell A. Kamin

9

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 </s> Case 2:17-cv-07215-R-JC Document 53 Filed 01/12/18 Page 1 of 36 Page ID #:1458

1 CHAD A. READLER
2 Acting Assistant Attorney General SANDRA R. BROWN
3 United States Attorney
4 JOHN R. TYLER Assistant Director
5 W. SCOTT SIMPSON (Va. Bar #27487)
6 Senior Trial Counsel Department of Justice, Room 7210
7 Civil Division, Federal Programs Branch
8 Post Office Box 883 Washington, D.C. 20044
9 Telephone: (202) 514-3495
10 Facsimile: (202) 616-8470 E-mail: scott.simpson@usdoj.gov
11
12 COUNSEL FOR DEFENDANTS

13

14 UNITED STATES DISTRICT COURT
15

16

FOR THE CENTRAL DISTRICT OF CALIFORNIA

17 CITY OF LOS ANGELES,

Case No. 2:17-cv-07215-R-JCx

18

Plaintiff,

DEFENDANTS’ NOTICE OF

19

v.

MOTION AND MOTION FOR

20

PARTIAL SUMMARY JUDGMENT;

JEFFERSON B. SESSIONS, III, et al., OPPOSITION TO PLAINTIFF’S

21

MOTION FOR PARTIAL

22

Defendants.

SUMMARY JUDGMENT

23

Date:

February 20, 2018

24

Time: 10:00 a.m.

25

26

27

28

Case 2:17-cv-07215-R-JC Document 53 Filed 01/12/18 Page 2 of 36 Page ID #:1459

1

TABLE OF CONTENTS

2

3 TABLE OF AUTHORITIES.....................................................................................ii
4 NOTICE OF MOTION AND MOTION FOR PARTIAL SUMMARY
5 JUDGMENT ..........................................................................................................viii
6 MEMORANDUM OF POINTS AND AUTHORITIES........................................... 1
7
8 INTRODUCTION ..................................................................................................... 1

9 STATUTORY AND ADMINISTRATIVE BACKGROUND ................................. 3

10 I. COPS Hiring Program and the COPS Office ....................................... 3
11

12

A. Governing Statutes and Creation of the Program....................... 3

13

B. Scoring Applications and Selecting Grantees ............................ 5

14 C. Factors Related to Enforcement of Immigration Laws .............. 7
15

16

II. Immigration and Nationality Act .......................................................... 9

17

III. Los Angeles’s CHP/UHP Applications and Grants............................ 10

18 IV. Procedural History .............................................................................. 10
19

20 ARGUMENT........................................................................................................... 11

21

I. All of Plaintiff’s Claims Must Be Dismissed as Non-Justiciable....... 11

22

II. Alternatively, the Court Should Enter Judgment for the

23

Defendants on the Merits .................................................................... 13

24

A. The Immigration-Related Factors Are Consistent

25

with the Governing Statutes ..................................................... 13

26

B. The Immigration-Related Factors Are Consistent

27

with the Spending Clause ......................................................... 20

28

i

Case 2:17-cv-07215-R-JC Document 53 Filed 01/12/18 Page 3 of 36 Page ID #:1460

1

1. The Immigration-Related Factors Are

2

Sufficiently Clear.......................................................... 21

3

2. The Immigration-Related Factors Are Sufficiently

4

Related to the Purposes of the COPS Hiring Program .. 22

5

C. The Challenged Factors Are Consistent with the APA ............ 24

6 CONCLUSION........................................................................................................ 25
7

8

9

10

11

12

13

14

15

16

17

18

19

20

21

22

23

24

25

26

27

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Case 2:17-cv-07215-R-JC Document 53 Filed 01/12/18 Page 4 of 36 Page ID #:1461

1

TABLE OF AUTHORITIES

2

3 CONSTITUTION
4 U.S. Const. art. I, § 8, cl. 1 ....................................................................................... 14
5

6 CASES
7 8 Alaska Oil & Gas Ass’n v. Jewell, 815 F.3d 544 (9th Cir. 2016) ...................... 24, 25

9 All. for the Wild Rockies v. Peña, 865 F.3d 1211 (9th Cir. 2017)..................2, 24, 25
10 Arizona v. United States, 567 U.S. 387 (2012) .................................................... 9, 18
11
12 Barbour v. Washington Metro. Area Transit Auth., 374 F.3d 1161 (D.C. Cir. 2004) ............................................................................ 22
13
14 Barnhart v. Peabody Coal Co., 537 U.S. 149 (2003) .............................................. 16

15 Brown v. Or. Dep’t of Corr., 751 F.3d 983 (9th Cir. 2014) ..................................... 12 16
Cal. Sea Urchin Comm’n v. Bean, 828 F.3d 1046 (9th Cir. 2016) .......................... 12 17
18 Canatella v. California, 304 F.3d 843 (9th Cir. 2002).............................................12

19 City of Chicago v. Sessions, 264 F. Supp. 3d 933 (N.D. Ill. 2017) .......................... 20
20 City of Los Angeles v. Lyons, 461 U.S. 95 (1983)..............................................12, 13
21

22 City of Los Angeles v. McLaughlin, 865 F.2d 1084 (9th Cir. 1989) .......................... 4

23 City of New York v. United States, 179 F.3d 29 (2d Cir. 1999) ............................... 20
24 Clinton v. City of New York, 524 U.S. 417 (1998) ................................................... 14
25

26 Freilich v. Upper Chesapeake Health, Inc., 313 F.3d 2054 (4th Cir. 2002)............20

27 Gregory v. Ashcroft, 501 U.S. 452 (1991) ............................................................... 19 28

iii

Case 2:17-cv-07215-R-JC Document 53 Filed 01/12/18 Page 5 of 36 Page ID #:1462
1 Indep. Acceptance Co. v. California, 204 F.3d 1247 (9th Cir. 2000) ................ 24, 25 2
Larson v. Domestic & Foreign Commerce Corp., 337 U.S. 682 (1949) ................. 14 3 4 Mann v. Lee, No. C 07-00781 MMC (PR), 2009 WL 5178095,
(N.D. Cal. Dec. 22, 2009) .................................................................................... 11 5 6 Mayweathers v. Newland, 314 F.3d 1062 (9th Cir. 2002) ................................. 22, 23
7 Pennhurst State Sch. & Hosp. v. Halderman, 465 U.S. 89 (1984) .......................... 14 8
Pierce v. SEC, 786 F.3d 1027 (D.C. Cir. 2015) ....................................................... 25 9 10 Price v. City of Stockton, 390 F.3d 1105 (9th Cir. 2004) ......................................... 11
11 Quechan Tribe of Ft. Yuma Indian Reservation v. U.S. Dep’t of the Interior, 12 927 F. Supp. 2d 921 (S.D. Cal. 2013), aff’d, 673 F. App’x 709 (9th Cir. 2016) . 25
13 Reno v. Condon, 528 U.S. 141 (2000)......................................................................20 14
S. Dakota v. Dole, 483 U.S. 203 (1987) .......................................................19, 20, 21 15 16 Sanford v. MemberWorks, Inc., 625 F.3d 550 (9th Cir. 2010).................................13
17 Skydive Arizona, Inc. v. Quattrocchi, 673 F.3d 1105 (9th Cir. 2012)......................11 18
Spencer v. Kemna, 523 U.S. 1 (1998) ...................................................................... 13 19 20 Steel Co. v. Citizens for a Better Env’t, 523 U.S. 83 (1998) .................................... 12
21 U.S. Parole Comm’n v. Geraghty, 445 U.S. 388 (1980)..........................................13 22
United States v. Dang, 488 F.3d 1135 (9th Cir. 2007) ............................................. 15 23 24 Wash. Dep’t of Ecology v. EPA, 752 F.2d 1465 (9th Cir. 1985)..............................24
25 26 STATUTES
27 5 U.S.C. § 704...........................................................................................................12 28
iv

Case 2:17-cv-07215-R-JC Document 53 Filed 01/12/18 Page 6 of 36 Page ID #:1463
1 8 U.S.C. §§ 1101-1107 ............................................................................................... 9 2
8 U.S.C. § 1227(a) .................................................................................................... 10 3 4 8 U.S.C. § 1228.........................................................................................................10
5 8 U.S.C. § 1252c.................................................................................................10, 23 6
8 U.S.C. § 1324(c) .............................................................................................. 10, 23 7 8 8 U.S.C. § 1357(a)(1) ............................................................................................... 10
9 8 U.S.C. § 1357(a)(2) ............................................................................................... 18 10
8 U.S.C. § 1357(g) .............................................................................................. 10, 23 11 12 8 U.S.C. § 1373.........................................................................................................20
13 8 U.S.C. § 1373(a) ................................................................................................ 8, 10 14
34 U.S.C. § 10122(c)(2)(F) ...................................................................................... 18 15 16 34 U.S.C. § 10228.....................................................................................................18
17 34 U.S.C. § 10261(a)(11)(B) ................................................................................ 5, 15 18
34 U.S.C. § 10381(b)(1) ...........................................................................3, 14, 17, 23 19 20 34 U.S.C. § 10381(b)(2) ...........................................................................3, 14, 17, 23
21 34 U.S.C. § 10381(b)(3)-(22) ..................................................................................... 4 22
34 U.S.C. § 10381(b)(10) ......................................................................................... 17 23 24 34 U.S.C. § 10381(b)(16) ......................................................................................... 17
25 34 U.S.C. § 10381(c) ................................................................................................ 16 26
34 U.S.C. § 10381(c)(1) ........................................................................................... 16 27 28 34 U.S.C. § 10381(c)(2) ........................................................................................... 16
v

Case 2:17-cv-07215-R-JC Document 53 Filed 01/12/18 Page 7 of 36 Page ID #:1464
1 2 34 U.S.C. § 10381(c)(3) ........................................................................................... 16 3 34 U.S.C. § 10381(f).............................................................................................5, 15 4
34 U.S.C. § 10381(g) ............................................................................................ 5, 15 5 6 34 U.S.C. § 10381(h) ............................................................................................ 5, 15 7 34 U.S.C. § 10382(c)(2) ....................................................................................... 5, 15 8
34 U.S.C. § 10382(c)(3) ....................................................................................... 5, 15 9 10 34 U.S.C. § 10382(c)(10) ..................................................................................... 6, 15 11 Pub. L. No. 96-157, 93 Stat. 1167 (1979) ................................................................ 18 12
Pub. L. No. 103-322, 108 Stat. 1808 (1994) ........................................................ 3, 23 13 14 Pub. L. No. 113-235, 128 Stat. 2130 (2014) ........................................................ 4, 17 15 Pub. L. No. 114-22, 129 Stat. 2242 (2015) .............................................................. 16 16
Pub. L. No. 114-113, 129 Stat. 2242 (2015) .............................................................. 4 17 18 Pub. L. No. 115-37, 131 Stat. 854 (2017) .................................................................. 7 19 20 LEGISLATIVE HISTORY 21 H.R. Rep. No. 103-324 ............................................................................................. 19 22 23 REGULATIONS 24
28 C.F.R. §§ 0.119......................................................................................................3 25 26 28 C.F.R. §§ 0.120......................................................................................................4 27 28
vi

Case 2:17-cv-07215-R-JC Document 53 Filed 01/12/18 Page 8 of 36 Page ID #:1465
1 2
RULES 3 4 Fed. R. Civ. P. 56(a) ................................................................................................. 11 5 Fed. R. Civ. P. 56(b) ................................................................................................. 11 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28
vii

Case 2:17-cv-07215-R-JC Document 53 Filed 01/12/18 Page 9 of 36 Page ID #:1466

1

NOTICE OF MOTION AND MOTION FOR

2

PARTIAL SUMMARY JUDGMENT

3

PLEASE TAKE NOTICE that on Tuesday, February 20, 2018, at 10:00 a.m.,

4 or as soon thereafter as counsel may be heard, before The Honorable Manuel L.

5 Real, in Courtroom 880 on the Eighth Floor of the Edward R. Roybal Federal

6 Building and United States Courthouse, 255 East Temple Street, Los Angeles,

7 California, the defendants will move, and hereby do move, for partial summary

8 judgment in this action under Rules 54(b) and 56 of the Federal Rules of Civil

9 Procedure. Defendants move for summary judgment dismissing Counts Four, Five,

10 and Six of plaintiffs’ Complaint, which challenge certain scoring factors used in the

11 COPS Hiring Program administered by the Office of Community Oriented Policing

12 Services of the U.S. Department of Justice.

13

This motion is based on the following Memorandum of Points and

14 Authorities, the accompanying Statement of Uncontroverted Facts, the evidence

15 and records on file in this action, and any other written or oral evidence or

16 argument that may be presented at or before the time this motion is heard by the

17 Court.

18 Dated: January 12, 2018

19

Respectfully submitted,

20 CHAD A. READLER

21

Acting Assistant Attorney General

22 SANDRA R. BROWN

23

United States Attorney

24 JOHN R. TYLER

25

Assistant Director

26

27

28

viii

Case 2:17-cv-07215-R-JC Document 53 Filed 01/12/18 Page 10 of 36 Page ID #:1467

1

2

/s/ W. Scott Simpson

3

W. SCOTT SIMPSON (Va. Bar #27487)

4

Senior Trial Counsel

5

Attorneys, Department of Justice

6

Civil Division, Room 7210

Federal Programs Branch

7

Post Office Box 883

8

Washington, D.C. 20044

Telephone:(202) 514-3495

9

Facsimile: (202) 616-8470

10

E-mail: scott.simpson@usdoj.gov

11

COUNSEL FOR DEFENDANTS

12

13

14

15

16

17

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20

21

22

23

24

25

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27

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ix

Case 2:17-cv-07215-R-JC Document 53 Filed 01/12/18 Page 11 of 36 Page ID #:1468

1

MEMORANDUM OF POINTS AND AUTHORITIES

2

INTRODUCTION

3

The COPS Hiring Program (“CHP”) awards federal grants to selected state,

4 local, and tribal governments to assist in hiring, rehiring, and training law enforce-

5 ment officers to enhance public safety and promote “community-oriented policing.”

6 CHP is a discretionary grant program, with grants awarded to recipients following a

7 competitive application and scoring process. Since 2013, an average of nearly

8 1,300 law enforcement agencies have requested funding through CHP each year –

9 requests that far exceed the available funds appropriated by Congress. To ensure

10 that these limited funds are allocated sensibly, Congress gave the Department of

11 Justice (“DOJ”) broad discretion to determine which jurisdictions should receive

12 CHP funding. DOJ exercises that discretion to promote and support public safety

13 objectives.

14

DOJ’s Office of Community Oriented Policing Services (“COPS Office” or

15 “Office”) awards CHP grants. To apply for funding, an agency must submit an

16 application that (1) provides information about the jurisdiction’s needs and

17 practices and (2) explains how the jurisdiction intends to utilize the new officers it

18 will hire using CHP funds. The COPS Office scores the applications according to

19 both the comparative needs of the applicants and metrics that emphasize the Federal

20 Government’s enforcement priorities in any given year. To that end, every year the

21 Office selects several key “focus areas” for law enforcement and gives extra points

22 to applications that focus on those areas. Over time, those focus areas have

23 changed to reflect differing law enforcement priorities and pressing needs, ranging

24 broadly from Homicide to Homeland Security to “Children Exposed to Violence.”

25

For Fiscal Year 2017, the COPS Office included two new law-enforcement

26 related immigration factors in its scoring system. First, one of the focus areas was

27 “Illegal Immigration,” such that applicants could earn extra points by proposing

28 ways to contribute to combatting illegal immigration. Second, applicants could

Case 2:17-cv-07215-R-JC Document 53 Filed 01/12/18 Page 12 of 36 Page ID #:1469

1 earn extra points by adopting policies to ensure (1) that the Department of

2 Homeland Security (“DHS”) has access to the applicant’s detention facilities to

3 meet with aliens who have, or may have, committed crimes, and (2) that upon its

4 request, DHS receives advance notice of the scheduled release of a criminal alien in

5 the jurisdiction’s custody.

6

Los Angeles challenges the “decision” to include these factors in the FY

7 2017 application and scoring system (Doc. 1 ¶¶ 85, 112, 128), claiming it was ultra

8 vires and violated the Separation of Powers, limitations on the Spending Power, and

9 the Administrative Procedure Act (“APA”). The City’s claims regarding that

10 decision, however, are non-justiciable. As the accompanying declaration makes

11 clear, Los Angeles would not have received CHP funding this year even if all points

12 related to illegal immigration had been excluded, such that the City has no legally

13 cognizable interest in the FY 2017 factors. Moreover, to the extent plaintiff seeks

14 to rely on any interest in whatever factors will be used in the FY 2018 grant cycle,

15 its claims would be non-justiciable because one cannot assume that Los Angeles

16 will seek a CHP grant at that time or that the same factors will be used.

17

But even if plaintiff’s claims were otherwise cognizable, they would fail on

18 the merits. The statutes give DOJ broad discretion to allocate scarce CHP funds

19 among the many applicants that seek them, such that the Office was not acting ultra

20 vires or encroaching on the congressional sphere. As for the Spending Clause, the

21 immigration-related factors – which were mere scoring criteria rather than condi-

22 tions on federal funds – were unambiguous and clearly related to the CHP’s

23 purposes. The COPS Office offered to answer any questions from potential

24 applicants (an offer Los Angeles did not accept), and facilitating federal access to

25 criminal aliens in local custody promotes public safety. Finally, as for plaintiff’s

26 APA claim, the factors were consistent with the CHP’s purposes, and nothing in the

27 statute suggests these factors are off limits. Plaintiff may have a “difference in

28 view,” but that is not an APA violation. See, e.g., All. for the Wild Rockies v. Peña,

2

Case 2:17-cv-07215-R-JC Document 53 Filed 01/12/18 Page 13 of 36 Page ID #:1470

1 865 F.3d 1211, 1217 (9th Cir. 2017).

2

For these reasons, plaintiff’s motion for partial summary judgment should be

3 denied, and judgment should be entered dismissing Counts Four, Five, and Six of

4 plaintiff’s Complaint.1

5

STATUTORY AND ADMINISTRATIVE BACKGROUND

6 I. COPS Hiring Program and the COPS Office

7

A. Governing Statutes and Creation of the Program

8

In the Violent Crime Control and Law Enforcement Act of 1994, Congress

9 authorized the Attorney General to “make grants to States, units of local

10 government, [and] Indian tribal governments . . . to increase police presence, to

11 expand and improve cooperative efforts between law enforcement agencies and

12 members of the community to address crime and disorder problems, and otherwise

13 to enhance public safety.” Pub. L. No. 103-322, Title I, § 10003(a), 108 Stat. 1808

14 (1994). As later amended and currently codified, the statute provides authority to

15 make grants for any of several specific purposes, including –

16 (1) to rehire law enforcement officers who have been laid off as

17

a result of State, tribal, or local budget reductions for deployment in

18

community-oriented policing; [and]

(2) to hire and train new, additional career law enforcement

19

officers for deployment in community-oriented policing across the

20

Nation, including by prioritizing the hiring and training of

veterans . . . .

21 34 U.S.C. § 10381(b)(1), (2).

22

The Attorney General created the COPS Office to administer grants under

23 this enactment. See Declaration of Andrew A. Dorr ¶ 2 (“Dorr Decl.”). The Office

24 is headed by a Director appointed by the Attorney General. Id.; 28 C.F.R. §§ 0.119,

25

26 1 Counts One, Two and Three relate to a different program, the Edward
27 Byrne Memorial Justice Assistance Grant Program. This Court has stayed proceed-
28 ings on those claims pending developments in City of Chicago v. Sessions, No. 172991 (7th Cir.).

3

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1 0.120. The COPS Office began implementing 34 U.S.C. § 10381(b)(1) and (b)(2)

2 in 1994. Initially, the Office operated two programs, one for large grantees and one

3 for small grantees. Dorr Decl. ¶ 5. The programs were combined in 1995 under the

4 name Universal Hiring Program (“UHP”), which was renamed the COPS Hiring

5 Program in 2010. Id.

6

Under CHP, the COPS Office makes grants to state and local governments to

7 hire, rehire, or train law enforcement officers for deployment in “community-

8 oriented policing.” Id. ¶¶ 5, 7. A COPS Hiring Program grant is discretionary, id.

9 ¶ 4 – that is, it is a grant “for which the federal awarding agency generally may

10 select the recipient from among all eligible recipients, may decide to make or not

11 make an award based on the programmatic, technical, or scientific content of an

12 application, and can decide the amount of funding to be awarded.” See Discre-

13 tionary Grant, Grant Terminology, https://www.grants.gov/ web/ grants/ learn-

14 grants/ grant-terminology.html (last visited Jan. 11, 2018). Discretionary grants

15 differ from formula grants, under which a “statutory device” “determines who the

16 recipients are and how much money each shall receive.” City of Los Angeles v.

17 McLaughlin, 865 F.2d 1084, 1088 (9th Cir. 1989) (citation omitted).

18

The operation of the CHP – like all other COPS Office programs – is subject

19 to annual appropriations by Congress. Dorr Decl. ¶¶ 3, 5. Each year, Congress

20 appropriates a certain amount “for the hiring and rehiring of additional career law

21 enforcement officers” under the Program. See, e.g., Pub. L. No. 114-113, 129 Stat.

22 2242, 2310-11 (2015); Pub. Law No. 113-235, 128 Stat. 2130, 2196 (2014).2 Those

23 appropriated amounts have decreased over the last several years, making CHP

24 increasingly competitive. Dorr Decl. ¶¶ 12-13. Each year, the applications that the

25 COPS Office receives seek more funds than Congress has appropriated. Id. ¶ 13.

26 2 34 U.S.C. § 10381(b) provides statutory authority for several other potential
27 grants, 34 U.S.C. § 10381(b)(3) - (22), but Congress has never appropriated funds
28 for most of them and, therefore, the COPS Office has never offered grants under most of them. Dorr Decl. ¶ 6.

4

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1

The statute sets forth certain specific requirements for the Program. For

2 example, the Office must award at least 0.5% of the available funding to grantees

3 within any State that has eligible applicants (which helps ensure that smaller States

4 are not excluded), 34 U.S.C. § 10381(f); Dorr Decl. ¶ 9; the Office must allocate

5 50% of each year’s available funds to jurisdictions with a population over 150,000

6 and 50% of the funds to jurisdictions with lower population, 34 U.S.C. § 10381(h);

7 see id. § 10261(a)(11)(B); and each grantee must provide a portion of the money

8 used to hire or rehire officer that CHP funds, subject to discretionary waiver by the

9 Attorney General, id. § 10381(g).

10

B. Scoring Applications and Selecting Grantees

11

Other than these broad rules, the statutes governing the Program do not

12 prescribe any particular method or factors for evaluating applications or choosing

13 which applications to fund. Therefore, the COPS Office must necessarily exercise

14 judgment and discretion in choosing among applications. The Office has developed

15 methods to evaluate and score applications to determine how best to allocate the

16 Program’s finite funds, and those scoring factors change from time to time to reflect

17 varying public safety priorities. Dorr Decl. ¶ 14.

18

A jurisdiction seeking a CHP grant submits an electronic application on the

19 COPS Office web site. Id. ¶ 10. The application is part of a system that assigns a

20 specific number of points for each answer given. Id. ¶ 15. Some of the factors that

21 the Office uses in scoring are reflected in the statutes. For example, the statute

22 states that applicants “shall . . . demonstrate a specific public safety need [and]

23 explain the applicant’s inability to address the need without Federal assistance.” 34

24 U.S.C. § 10382(c)(2), (3). The Office has implemented this directive by requesting

25 data reflecting each applicant’s crime statistics and financial need and by according

26 extra points based on higher crime rates and comparatively greater fiscal need.

27 Dorr Decl. ¶ 16. Similarly, the system scores the quality of the applicant’s

28 community policing plan pursuant to the statutory requirement that applicants

5

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1 “explain how the grant will be utilized to reorient the affected law enforcement

2 agency’s mission toward community-oriented policing or enhance its involvement

3 in or commitment to community-oriented policing.” Id.; 34 U.S.C. § 10382(c)(10).

4

Most of the factors that the COPS Office has historically used to score are

5 adopted as an exercise of the Office’s discretion to evaluate applications and

6 distribute scarce funding. The Office has employed such discretionary factors since

7 the inception of the Program, and Congress has continued to appropriate funding

8 each year with a complete understanding of how the Office administers it. The

9 Office exercises its discretion through several mechanisms, without which the

10 program’s limited funding could not be rationally awarded.

11

First, each year, the COPS Office designates several broad areas of public

12 safety and community policing, and applicants must indicate which areas their

13 activities will support. And each year, the Office prioritizes certain of the available

14 areas; applicants that select those focus areas receive extra points in the system.

15 Dorr Decl. ¶ 18. The available areas and the focus areas have changed over the

16 years, reflecting changes in both national law enforcement necessities and DOJ

17 priorities. For example, in FY 2014, after the Newtown (Conn.) Police Department

18 failed to score high enough to receive a CHP grant after the 2012 Sandy Hook

19 shooting, the COPS Office added a “catastrophic event” question and assigned it

20 the highest level of extra points to ensure that the Office could assist agencies

21 afflicted by unexpected catastrophes like that shooting. Id. For FY 2017, the

22 available areas were Child and Youth Safety Focus; Child and Youth Safety Focus:

23 School Based Policing; Illegal Immigration; Drug Abuse; Homeland Security

24 Problems; Non-Violent Crime Problems and Quality-of-Life Policing; Building

25 Trust and Respect; Traffic/Pedestrian Safety Problems; and Violent Crime

26 Problems. Id. ¶ 7. Consistent with the statute, the areas often reflect priorities for

27 which “cooperative efforts between law enforcement agencies” at the federal and

28

6

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1 local levels can be beneficial.

2

Second, certain questions on the CHP application that do not relate to focus

3 areas are awarded more points than other questions based on their significance to

4 advancing community policing or other law enforcement priorities. Id. ¶ 18. For

5 example, the system accords extra points for certain management practices,

6 including the regular assessment of employee satisfaction, the exercise of flexibility

7 shift assignments to facilitate addressing problems, and the operation of an “early

8 intervention system” to identify officers showing signs of stress. Id. Additionally,

9 from FY 2013 through FY 2016, the COPS Office, based on the Attorney General’s

10 priorities, assigned extra points for jurisdictions that preferred military veterans in

11 hiring officers with CHP funds, although no such preference was then mandated in

12 the statute. Id. ¶ 19; see Pub. L. No. 115-37, 131 Stat. 854 (2017) (expressly

13 authorizing “prioritizing the hiring and training of veterans”).

14

Third, each individual factor on the application falls into one of three

15 categories: Fiscal Health, Crime, or Community Policing. Dorr Decl. ¶ 20. After

16 calculating each applicant’s raw scores, the Office gives different weights to the

17 applicant’s scores in each of these categories, based on the Attorney General’s

18 priorities and the needs of public safety. Id. For most years, the Fiscal Health

19 category has been weighted as 20% of the final score, the Crime category has been

20 weighted as 30% of the final score, and the Community Policing category has been

21 weighted as 50% of the final score. Id. The Office changes these percentages from

22 time to time. In FY 2009, for example, in light of the fiscal issues that resulted in

23 enactment of the American Recovery and Reinvestment Act of 2009, the Office

24 accorded 50% of the weighting to the “Fiscal Health” category. Id.

25

C. Factors Related to Enforcement of Immigration Laws

26

Beginning with Fiscal Year 2016, certain immigration-related requirements

27 and scoring factors have been included in the COPS Hiring Program.

28

CHP grantees, like all federal grantees, are required to comply with all

7

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1 applicable federal laws. Dorr Decl. ¶ 23. Beginning with FY 2016, the Office has

2 advised each applicant that this requirement includes compliance with 8 U.S.C.

3 § 1373, which provides that “a Federal, State, or local government entity or official

4 may not prohibit, or in any way restrict, any government entity or official from

5 sending to, or receiving from, [federal immigration authorities] information regard-

6 ing the citizenship or immigration status, lawful or unlawful, of any individual.” 8

7 U.S.C. § 1373(a); Dorr Decl. ¶ 23. In FY 2017, the Office required applicants to

8 certify compliance with Section 1373 as a threshold eligibility requirement,

9 although there was no scoring associated with it. Id.

10

For FY 2017, the priority areas on the CHP application included proposals

11 that prioritized addressing problems with violent crime; those that focused on

12 homeland security, such as protecting critical infrastructure; and those that focused

13 on contributing to the control of illegal immigration or cooperating with federal

14 authorities in enforcing immigration law. Id. ¶ 18. Thus, the system assigned extra

15 points for focusing on Illegal Immigration, although it also gave an equal or greater

16 number of points for focusing on other specified areas. Id. ¶ 24. Seven jurisdic-

17 tions chose Illegal Immigration as the focus area of their FY 2017 applications, but

18 none scored high enough to receive funding prior to the addition of any points

19 attributable to the access-and-notice factors described below. Id.3

20

Lastly, beginning in FY 2017, the COPS Office offered applicants the

21 opportunity to receive additional points by certifying that the applicant had

22 implemented or would implement regulations or policies to ensure (1) that DHS

23 would have access to the applicant’s detention facilities “to meet with an alien (or

24 an individual believed to be an alien) and inquire as to his or her right to be or to

25 remain in the United States,” and (2) that the applicant’s detention facilities would

26 3 Defendants’ opposition to plaintiff’s preliminary injunction motion stated
27 that none of the applicants that chose Illegal Immigration scored high enough to
28 receive an award. Shortly before the filing of the present motion, however, the COPS Office realized that statement was in error. Dorr Decl. ¶¶ 30-35 & n.5.

8

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1 “provide advance notice as early as practicable (at least 48 hours, where possible)

2 to DHS regarding the scheduled release date and time of an alien in the jurisdic-

3 tion’s custody when DHS requests such notice in order to take custody of the

4 alien.” Id. ¶ 25. To inform applicants of the opportunity to receive points based on

5 these factors, the Office electronically sent each applicant a letter, certification

6 form, and background documents. Id. ¶ 27 & Ex. B. These materials stated that the

7 certification would not commit applicants to detain any individuals beyond their

8 scheduled time of release and that applicants would not be penalized if they did not

9 operate detention facilities. Id. ¶ 27. A jurisdiction’s certification regarding these

10 factors did not forbid the jurisdiction from informing detainees that they may

11 choose not to meet with federal immigration authorities where the jurisdiction’s

12 laws required providing that information. Id. ¶ 26. Nor did the certification require

13 a jurisdiction to notify DHS before releasing an alien under short-term detention

14 with an unknown release time. Id.

15 II. Immigration and Nationality Act

16

Enforcement of the immigration laws, including and especially the investiga-

17 tion and apprehension of criminal aliens, is a quintessential law enforcement

18 function. Through the Immigration and Nationality Act (“INA”), 8 U.S.C. §§

19 1101-07, Congress granted the Executive Branch significant authority to control the

20 conduct of foreign nationals in the United States. These responsibilities are

21 assigned to law enforcement agencies, as the INA authorizes DHS, DOJ, and other

22 Executive agencies to administer and enforce the immigration laws. The INA

23 permits the Executive Branch to exercise considerable discretion to direct enforce-

24 ment pursuant to federal policy objectives. See, e.g., Arizona v. United States, 567

25 U.S. 387, 396 (2012).

26

The INA includes several provisions that protect the ability of federal

27 officials to investigate the status of aliens and otherwise enforce the immigration

28 laws. For example, the statute provides that a federal immigration officer “shall

9

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1 have power without warrant . . . to interrogate any alien or person believed to be an

2 alien as to his right to be or to remain in the United States.” 8 U.S.C. § 1357(a)(1).

3 Separately, as noted above, 8 U.S.C. § 1373 provides that “a Federal, State, or local

4 government entity or official may not prohibit, or in any way restrict, any govern-

5 ment entity or official from sending to, or receiving from, [federal authorities]

6 information regarding the citizenship or immigration status, lawful or unlawful, of

7 any individual.” Id. § 1373(a). The INA provides that certain classes of aliens

8 shall be removed from the United States upon the order of the Attorney General or

9 the Secretary of Homeland Security. See, e.g., id. §§ 1227(a), 1228.

10

The INA also establishes immigration enforcement as a cooperative endeavor

11 among federal, state, and local law enforcement agencies. See, e.g., id. § 1357(g)

12 (providing that DHS may enter into formal agreements with states and localities

13 under which trained and qualified state and local officers may perform specified

14 functions of a federal immigration officer); see also id. § 1324(c) (authorizing state

15 and local officers to make arrests for violations of the INA’s prohibition against

16 smuggling aliens); id. § 1252c (authorizing state and local officers to arrest certain

17 felons who have unlawfully returned to the United States).

18 III. Los Angeles’s CHP/UHP Applications and Grants

19

Since 1995, Los Angeles has applied for grants under the CHP or its

20 predecessor nine times – in Fiscal Years 1995, 1996, 1998, 2003, 2009, 2011, 2012,

21 2016, and 2017. The 2011 and 2017 applications were denied, and the others were

22 granted. Dorr Decl. ¶¶ 30-32. The City’s application for FY 2017 was denied

23 because it scored below those of other large-population jurisdictions, even without

24 regard to any immigration-related factors. Id. ¶ 32. The COPS Office has now

25 completed reviewing all of the CHP applications for FY 2017, and has awarded all

26 of the available CHP funds. Id. ¶ 33.

27 IV. Procedural History

28

Plaintiff commenced this action on September 29, 2017, and simultaneously

10

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1 filed a motion for preliminary injunction seeking to enjoin use of the immigration-

2 related scoring factors for FY 2017 (Doc. 7-1). Defendants’ opposition to the

3 motion explained that Los Angeles would not receive a CHP grant even without

4 regarding to those factors (Doc. 33), and plaintiff withdrew its motion (Doc. 37).

5

ARGUMENT

6

A party may file a motion for summary judgment “at any time” until after the

7 close of discovery. See Fed. R. Civ. P. 56(b). “The court shall grant summary

8 judgment if the movant shows that there is no genuine dispute as to any material

9 fact and the movant is entitled to judgment as a matter of law.” Fed. R. Civ. P.

10 56(a). A party may file a motion for summary judgment without having filed an

11 answer, and the filing of such a motion tolls the time to answer. See Mann v. Lee,

12 No. C 07-00781 MMC (PR), 2009 WL 5178095, at *2 (N.D. Cal. Dec. 22,

13 2009).

14

In light of the governing statutes and the language of the challenged scoring

15 factors, “there is no genuine dispute as to any material fact and the [defendants are]

16 entitled to judgment as a matter of law.” Plaintiff’s claims regarding the CHP are

17 non-justiciable because it lacks a cognizable interest in the decisions to include

18 immigration-related factors. Alternatively, even if plaintiff’s claims were

19 cognizable, they would be without merit. Thus, plaintiff’s motion for partial

20 summary judgment should be denied, and judgment should be entered for the

21 defendants on these claims.4

22 I. All of Plaintiff’s Claims Must Be Dismissed as Non-Justiciable

23

Article III of the Constitution limits federal court jurisdiction to live “Cases”

24 and “Controversies.” To satisfy the “irreducible constitutional minimum” of

25

26

4 Even if this Court were to conclude that Los Angeles had established a right

to judgment, any injunction should be limited to the plaintiff rather than applying to

27 all CHP applicants. See Price v. City of Stockton, 390 F.3d 1105, 1117 (9th Cir.

28 2004) (internal quotation marks omitted); see also Skydive Arizona, Inc. v. Quattrocchi, 673 F.3d 1105, 1116 (9th Cir. 2012).

11

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1 standing to sue, a plaintiff must demonstrate an “injury in fact,” a “fairly traceable”

2 causal connection between the injury and defendant’s conduct, and redressability.

3 Steel Co. v. Citizens for a Better Env’t, 523 U.S. 83, 102-03 (1998). Further, to

4 establish standing to seek equitable relief, the plaintiff must show a likelihood of

5 future injury. See City of Los Angeles v. Lyons, 461 U.S. 95 (1983). In Lyons, for

6 example, the Supreme Court held that there was no “real and immediate threat” that

7 the plaintiff would be subjected to certain police conduct in the future. Id. at 105.

8 Thus, “the speculative nature of [plaintiff’s] claim that he [would] again experience

9 injury” deprived him of standing. Id. at 109. This rule applies regardless of the

10 type of equitable relief sought – whether declaratory or injunctive. See Brown v.

11 Or. Dep’t of Corr., 751 F.3d 983, 990 (9th Cir. 2014); Canatella v. California, 304

12 F.3d 843, 852 (9th Cir. 2002).

13

Under these principles, plaintiff’s claims regarding the CHP factors must be

14 dismissed as non-justiciable, whether focused forward on the eventual FY 2018

15 factors or backward on the FY 2017 factors.5 Plaintiff purports to rely on a

16 “competitive disadvantage . . . in future grant cycles” for CHP funds (Doc. 49 at

17 23), and to seek declaratory and injunctive relief to eliminate that future “disadvan-

18 tage.” See Complaint at 39-40 (Doc. 1). As noted above, however, Los Angeles

19 has applied for CHP or UHP grants only nine times during the twenty-three years of

20 the program’s existence. Dorr Decl. ¶ 36. Moreover, the focus areas and other

21 scoring factors that the Office uses in selecting among applications change from

22 time to time, and the Office has not determined the focus areas for FY 2018 or how

23 immigration-related factors will be handled in the FY 2018 application. Id. ¶¶ 14,

24 18, 24, 29.

25

In light of these circumstances, plaintiff lacks a cognizable “injury in fact” in

26 5 Additionally, to the extent plaintiff seeks to challenge whatever factors the
27 Office may decide to use in the FY 2018 grant season, the City’s claim under the
28 APA should be dismissed for lack of “final” agency action. 5 U.S.C. § 704. See Cal. Sea Urchin Comm’n v. Bean, 828 F.3d 1046, 1049 (9th Cir. 2016).

12

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1 relation to future grant cycles. Plaintiff’s case for standing necessarily assumes

2 both that it will seek a CHP grant in FY 2018 and that the same challenged factors

3 will be used at that time. Both assumptions are fatally “speculative.” Lyons, 461

4 U.S. at 109. Thus, there is no “real and immediate threat” that plaintiff will again

5 be subjected to the scoring factors challenged here, and all of plaintiff’s claims

6 must be dismissed for lack of Article III standing. Id. at 105.

7

Moreover, to the extent plaintiff relies on any interest in the FY 2017 scoring

8 factors, its claims have become moot. See Sanford v. MemberWorks, Inc., 625 F.3d

9 550, 556 (9th Cir. 2010) (stating that the “requisite personal interest that must exist

10 at the commencement of the litigation (standing) must continue throughout its

11 existence (mootness)”) (quoting U.S. Parole Comm’n v. Geraghty, 445 U.S. 388,

12 397 (1980)). Plaintiff would not have received a FY 2017 award regardless of

13 those factors, and the COPS Office has awarded all 2017 funds; thus, the City can

14 have no legally cognizable interest in the FY 2017 factors. Also, the “capable-of-

15 repetition” exception (Doc. 49-1 at 10 n.4) cannot apply here because it requires “a

16 reasonable expectation that the same complaining party will be subject to the same

17 action again.” See Spencer v. Kemna, 523 U.S. 1, 17 (1998) (internal quotation

18 marks omitted). There is no such “reasonable expectation,” especially given that

19 Los Angeles has applied for CHP/UHP grants only nine times during the program’s

20 twenty-three years – 39% of the time.

21 II. Alternatively, the Court Should Enter Judgment for

22

Defendants on the Merits

23 A. The Immigration-Related Factors Are Consistent

24

with the Governing Statutes

25

Plaintiff’s Count Four alleges that the COPS Office acted beyond its

26 authority and encroached upon that of Congress in adopting immigration-related

27 factors in the CHP. In this case, at least, the concepts of statutory authority and

28 separation of powers are two ways of looking at the same issue. Article I of the

13

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1 Constitution confers on Congress the authority to “lay and collect Taxes, Duties,

2 Imposts and Excises, to pay the Debts and provide for the common Defence and

3 general Welfare of the United States.” U.S. Const. art. I, § 8, cl. 1. In exercising

4 this power, Congress may – and often does – delegate to the Executive Branch the

5 authority to make decisions regarding the expenditure of funds. See, e.g., Clinton v.

6 City of New York, 524 U.S. 417, 488 (1998) (“Congress has frequently delegated

7 the President the authority to spend, or not to spend, particular sums of money.”).

8

The Executive Branch is responsible for implementing the law. The

9 Supreme Court has held that an Executive “officer may be said to act ultra vires

10 only when he acts without any authority whatever.” Pennhurst State Sch. & Hosp.

11 v. Halderman, 465 U.S. 89, 101 n.11 (1984) (internal quotation marks omitted).

12 Thus, claims that an agency has used its authority erroneously or inappropriately

13 are insufficient to state an ultra vires claim. Rather, ultra vires claims must be

14 based on an “officer’s lack of delegated power”; merely claiming an “error in the

15 exercise of that power is . . . not sufficient.” Larson v. Domestic & Foreign

16 Commerce Corp., 337 U.S. 682, 690 (1949) (emphasis added).

17

Here, the Department of Justice, acting through the COPS Office, is

18 responsible for disseminating the scarce funds appropriated under 34 U.S.C.

19 § 10381(b)(1) and (b)(2). The statute gives the Office discretion in disseminating

20 those funds, and the inadequacy of the available funds to cover all applications

21 requires DOJ to adopt and employ factors to rank and choose among them.

22 Although the statute imposes certain requirements on disseminating CHP funding,

23 those requirements are only broad guidelines that are too general to actually

24 allocate the awards. Congress gave DOJ discretion to fill in the gaps.

25

By statute, CHP funds must be used to hire, rehire, and train officers “for

26 deployment in community-oriented policing.” 34 U.S.C. § 10381(b)(1), (2). The

27 statute also provides a broad framework for DOJ’s discretionary awards.

28 Recognizing that there would likely not be enough money to fund every applicant,

14

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1 Congress required that at least 0.5% of available funding be awarded to the grantees

2 within any State that has eligible applicants, id. § 10381(f), that DOJ equally

3 allocate the available funds between large and small jurisdictions, id. § 10381(h);

4 id. § 10261(a)(11)(B), and that DOJ generally require local jurisdictions to provide

5 matching funds, id. § 10381(g). Congress also specified that each application must,

6 among other things, “demonstrate a specific public safety need,” “explain the

7 applicant’s inability to address the need without Federal assistance,” and “explain

8 how the grant will be utilized to reorient the [applicant’s] mission toward

9 community-oriented policing or enhance its involvement in or commitment to

10 community-oriented policing.” Id. § 10382(c)(2), (3), (10).

11

Beyond these basic requirements, the statute provides no comprehensive

12 framework or formula for choosing among the many jurisdictions that satisfy the

13 requirements. Indeed, the statute does not even direct DOJ to prioritize applications

14 that show the greatest “public safety need,” the most dire “inability to address the

15 need without Federal assistance,” or the greatest ability or willingness “to reorient

16 the [applicant’s] mission toward community-oriented policing.” It instead leaves

17 the details to DOJ, which means the COPS Office must either choose the winning

18 applicants via random lottery – an irrational method that losing applicants would

19 surely challenge as arbitrary and capricious – or develop a logical method of select-

20 ing worthy applicants that represents a reasonable exercise of DOJ’s discretion. By

21 taking the latter course, the Office is not encroaching on Congress. It is simply

22 filling in gaps that Congress delegated for it to fill, no doubt because Congress

23 wanted DOJ to use its law-enforcement expertise to award these grants in ways that

24 best promote Congress’s broad goal of making our communities safer through

25 community-oriented policing. Cf. United States v. Dang, 488 F.3d 1135, 1140 (9th

26 Cir. 2007) (“Here, a plain reading of the statute indicates that Congress intended to

27 leave a statutory gap for the administrative agency to fill.”).

28

Plaintiff’s arguments do not establish a right to judgment on the Separation

15

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1 of Powers or ultra vires claim. First, the discretionary considerations set forth at 34

2 U.S.C. § 10381(c) are not mandatory considerations, let alone exhaustive ones

3 (Doc. 49-1 at 13). They are, rather, bases on which “the Attorney General may give

4 preferential consideration, where feasible.” Id. (emphasis added). And these

5 factors obviously are not exhaustive, because merely prioritizing jurisdictions that

6 provide greater than 25% matching funds, id. § 10381(c)(1), or that have certain

7 laws related to child sex trafficking, id. § 10381(c)(2)-(3), would not be sufficient

8 to allocate limited CHP funding among the many applicants. Congress’s inclusion

9 of a few factors that the Office “may” consider plainly does not foreclose the Office

10 from developing additional factors to guide how it awards these discretionary

11 grants. See Barnhart v. Peabody Coal Co., 537 U.S. 149, 168 (2003).6

12

Over the last twenty-three years, the COPS Office has used many

13 discretionary factors, not expressly reflected in the statute, to identify which

14 applicants are most deserving of COPS hiring grants. Dorr Decl. ¶ 18-20. For

15 example, the statute says nothing about prioritizing different areas of public safety

16 from year to year, which is an obvious means of directing priorities and distributing

17 funds logically and equitably. Id. ¶ 18. Nor does the statute expressly direct the

18 Office to favor localities that have recently experienced a catastrophic event (like

19 the 2015 terror attack in San Bernardino, California, which resulted in a FY 2016

20 grant to that city’s police department), or to assign extra points for exercising

21 flexibility in shift assignments, or for attempting to identify officers showing signs

22 of stress. Id. Nor did the statute mandate the Office’s military veteran preference

23 until Congress added it in 2017. Id. ¶ 19. In short, since Congress created the CHP

24 discretionary grant program, DOJ has exercised its discretion to develop and use a

25

26

6 This is confirmed by the fact that Congress added the human-trafficking

provisions only in 2015. See Pub. L. No. 114-22, § 1002, 129 Stat. 227, 266-67

27 (2015). If plaintiff’s construction of the statute were correct, prior to 2015, the

28 COPS Office would have been limited to ranking applicants based on a jurisdiction’s willingness to exceed the minimum matching requirement.

16

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1 variety of factors to award funding. The factors at issue here are just the latest

2 example of that broad discretion. If plaintiff’s theory were correct, all of these

3 discretionary actions over the years – from prioritizing mass shootings to stressing

4 officer safety – would have to be deemed ultra vires. And Congress, knowing of

5 this (purportedly) ultra vires activity, would have to be deemed to have ignored it

6 repeatedly by appropriating funding for the program every year without restriction.

7

Second, plaintiff misreads the statute in arguing that most of the factors on

8 which the Office relies are not among the alleged “detailed list of twenty-two

9 purposes” for the program in 34 U.S.C. § 10381(b)(1) through (22) (Doc. 49-1 at

10 17). The COPS Hiring Program is authorized by only the first two paragraphs of

11 Section 10381(b), which authorize providing grants for hiring, rehiring, and train-

12 ing law enforcement officers “for deployment in community-oriented policing.” 34

13 U.S.C. § 10381(b)(1), (2). That language is reflected in Congress’s annual

14 appropriations, which provide funds specifically “for the hiring and rehiring of

15 additional career law enforcement officers.” See, e.g., Pub. Law No. 113-235, 128

16 Stat. 2130, 2196 (2014). The other paragraphs of Section 10381(b) authorize other

17 potential grants, when appropriated by Congress, such as grants “to establish

18 innovative programs to reduce, and keep to a minimum, the amount of time that law

19 enforcement officers must be away from the community while awaiting court

20 appearances” or “to support the purchase by a law enforcement agency of no more

21 than 1 service weapon per officer.” 34 U.S.C. § 10381(b)(10), (16). Congress has

22 never appropriated money to fund those other grants, and accordingly the COPS

23 Office does not award funds for those purposes. Dorr Decl. ¶ 6.7

24

Third, the challenged factors in the COPS Hiring Program do not

25

26 7 Quoting subsection (a) of 34 U.S.C. § 10381, plaintiff argues that the
27 statute Act created “a single grant program” (Doc. 49-1 at 19). However, regard-
28 less of whether subsections (b)(1) through (b)(22) are characterized as having authorized twenty-two potential programs or one program with twenty-two

17

Case 2:17-cv-07215-R-JC Document 53 Filed 01/12/18 Page 28 of 36 Page ID #:1485

1 impermissibly exercise “direction, supervision, or control over any police force or

2 any other criminal justice agency” in violation of 34 U.S.C. § 10228 (contra Doc.

3 7-1 at 14-15). Merely encouraging cooperation with federal authorities by giving

4 additional points as one portion of a broader scoring system to administer a discre-

5 tionary program does not exercise “direction, supervision, or control.” Indeed,

6 concurrent with the enactment of 34 U.S.C. § 10228, Congress created the National

7 Institute of Justice, see Pub. L. No. 96-157, §§ 202, 815, 93 Stat. 1167 (1979),

8 which has as one of its express statutory purposes “to develop programs and

9 projects . . . to improve and expand cooperation among the Federal Government,

10 States, and units of local government . . . .” 34 U.S.C. § 10122(c)(2)(F).

11

Fourth, Section 287(g) of the INA, 8 U.S.C. § 1357(g)(3), does not limit the

12 means by which a state or local government can assist in the enforcement of immi-

13 gration law or prohibit the COPS Office from assigning extra points to jurisdictions

14 that opt to assist federal immigration enforcement (contra Doc. 49-1 at 17-18 &

15 n.5). As the Supreme Court has observed, Section 287(g) only delineates some of

16 the circumstances under which “state officers may perform the functions of an

17 immigration officer,” Arizona v. United States, 567 U.S. 387, 408 (2012), which

18 include arresting aliens for “entering or attempting to enter the United States in

19 violation of any law or regulation made in pursuance of law regulating the

20 admission, exclusion, expulsion, or removal of aliens.” 8 U.S.C. § 1357(a)(2). No

21 formal agreement is required for state and local officers to assist in other ways, such

22 as by providing access to aliens they have detained or informing federal authorities

23 of the impending release of such persons where practical.8

24 potential purposes, the statute, in practice, is funded as one program with essentially

25 one purpose.

26

8 Also, although a willingness to enter into an agreement under that provision

may accord a CHP applicant additional points in the scoring process, any funds

27 awarded would have to be used to hire or rehire officers pursuant to the require-

28 ments of the Program, not for any state or local expenses of such an agreement. Dorr Decl. ¶ 24 n.2.

18

Case 2:17-cv-07215-R-JC Document 53 Filed 01/12/18 Page 29 of 36 Page ID #:1486

1

Fifth, nothing in the governing statutes or case law prohibits DOJ from using

2 scoring factors that “encourage states to pass laws or enact policies or practices that

3 the federal government favors” (Doc. 49-1 at 13-15).9 Indeed, the Supreme Court

4 has made clear that a federal agency can use grant conditions as a “relatively mild

5 encouragement” for States and localities to change their laws and policies,

6 including statutes on subjects like the purchase of alcohol. See S. Dakota v. Dole,

7 483 U.S. 203, 211 (1987). Moreover, many of the other scoring factors in the CHP

8 – factors not challenged here and never challenged elsewhere – “encourage”

9 potential grantees to change their laws or policies, such as according extra points

10 for exercising flexibility in shift assignments and for operating an “early interven-

11 tion system” to identify officers showing signs of stress. Dorr Decl. ¶ 18.

12

Sixth, the “clear statement” rule in Gregory v. Ashcroft, 501 U.S. 452, 461

13 (1991), does not apply to the development and use of scoring factors in the COPS

14 Hiring Program (contra Doc. 49-1 at 14). In Gregory, the Court addressed whether

15 federal law would override a state constitutional provision requiring judges to retire

16 at age seventy. Id. at 455-61. The Court held that it would not “upset the usual

17 constitutional balance of federal and state powers” without a “clear statement” from

18 Congress. Id. at 460-61. But this case does not involve overriding state or local

19 law. It is, rather, simply the latest iteration of an over-two-decades-old

20

21

9 Nor does the legislative history limit the COPS Office’s discretion (contra

22 Doc. 49-1 at 15). Indeed, that history supports the addition of the factors challenged here. The portion of the history quoted by the plaintiff reads in full: “In

23 establishing funding levels and selection criteria for these grants, the Attorney

24 General is expected to take into account local needs, costs, and other factors. It is contemplated . . . that the Attorney General will consider a wide range of relevant

25 criteria, including – among other factors – the needs of areas with high crime rates,

26 low officer to population ratios, understaffing of law enforcement agencies in relation to the size of the geographic areas for which they are responsible, high

27 unemployment and economic dislocation rates that may contribute to increased

28 crime problems, and other relevant trends.” H.R. Rep. No. 103-324 at 10 (emphasis added).

19

Case 2:17-cv-07215-R-JC Document 53 Filed 01/12/18 Page 30 of 36 Page ID #:1487

1 discretionary program that gives state and local agencies an opportunity to focus on

2 federal enforcement priorities and thereby increase their chances of receiving a

3 grant. Nothing in this voluntary program risks “overriding” Los Angeles law.

4 B. The Immigration-Related Factors Are Consistent

5

with the Spending Clause

6

Plaintiff’s Count Five alleges that the challenge factors exceed federal power

7 under the Spending Clause.10 As the Supreme Court has held, “Congress may

8 attach conditions on the receipt of federal funds, and has repeatedly employed the

9 power to further broad policy objectives by conditioning receipt of federal moneys

10 upon compliance by the recipient with federal statutory and administrative

11 directives.” Dole, 483 U.S. at 206 (internal quotation marks omitted).

12

The Court in Dole described certain limitations or potential limitations on the

13 spending power. Among other things, conditions on the receipt of federal funds

14 must be stated “unambiguously” so that recipients can “exercise their choice

15 knowingly, cognizant of the consequences of their participation.” Id. at 207. Also,

16 the Court observed, “our cases have suggested (without significant elaboration) that

17 conditions on federal grants might be illegitimate if they are unrelated to the federal

18 interest in particular national projects or programs.” Id. at 207-08 (internal quota-

19 tion marks omitted). Plaintiff’s Complaint alleges that the challenged factors

20 violate both of these aspects of Dole (Doc. 1 ¶¶ 124-125). Although plaintiff now

21

22

10 Although the heading of Count Five also mentions the Tenth Amendment,

it does not otherwise allege that the CHP factors violate that amendment (Doc. 1 at

23 38-39). In any event, such a claim would be without merit. This case does not

24 involve any direct federal mandate, but rather factors in the award or denial of a grant that the City is free to accept or reject. Moreover, the courts have rejected

25 Tenth Amendment challenges to a number of federal statutes, including 8 U.S.C. §

26 1373, that regulated the handling of information. See City of New York v. United States, 179 F.3d 29, 35 (2d Cir. 1999) (rejecting Tenth Amendment challenge to

27 Section 1373); City of Chicago v. Sessions, 264 F. Supp. 3d 933 (N.D. Ill. 2017)

28 (same); see also Reno v. Condon, 528 U.S. 141, 143-46, 149-150 (2000); Freilich v. Upper Chesapeake Health, Inc., 313 F.3d 205, 213-14 (4th Cir. 2002).

20

Case 2:17-cv-07215-R-JC Document 53 Filed 01/12/18 Page 31 of 36 Page ID #:1488

1 says it “does not intend to press” its allegation of ambiguity in light of post-

2 Complaint developments (Doc. 49-1 at 20 n.6), plaintiff has not withdrawn that

3 allegation. In any event, assuming the challenged factors could be characterized as

4 “conditions” at all, they satisfy these aspects of Dole.11

5

1. The Immigration-Related Factors Are Sufficiently Clear

6

There is nothing “ambiguous” about the Illegal Immigration focus area or the

7 access and notice factors, and applicants can choose those factors “knowingly,

8 cognizant of the consequences of their [choices].” Dole, 483 U.S. at 207. In

9 describing focus areas for potential applicants to choose from in FY 2017, the

10 COPS Office provided brief examples of some specific activities an applicant could

11 propose to perform in each area, but deliberately avoided telling applicants exactly

12 what to do, so they could develop their own approaches and tactics based on local

13 conditions and their local law enforcement expertise. Dorr Decl. ¶ 8. For example,

14 in offering Drug Abuse as a potential focus area, the Office simply asked applicants

15 to “specify [their] focus on education, prevention, and intervention to combat drug

16 use and abuse (e.g. marijuana, heroin, prescription opioids, etc.).” Id. Similarly, in

17 giving potential applicants the option of focusing on Illegal Immigration, the Office

18 asked interested jurisdictions to “specify [their] focus on partnering with federal

19 law enforcement to combat illegal immigration through information sharing, 287(g)

20 partnerships, task forces and honoring detainers.” Id. ¶ 24.

21

In any event, to the extent the access and notice factors were unclear to Los

22

23

11 Contrary to plaintiff’s argument, the challenged factors cannot be

24 characterized as “conditions” on the basis that an applicant unwilling to satisfy them is “less likely” to receive a grant (contra Doc. 49-1 at 18-19). As explained

25 already, these factors are only a few among many factors used in selecting among

26 applicants. Indeed, choosing “Illegal Immigration” as a focus area in the FY 2017 cycle did not guarantee receipt of an award, and many jurisdictions that neither

27 chose that focus area nor executed the access-and-notice certification were awarded

28 funds. Dorr Decl. ¶ 33. For the same reasons, the scoring factors cannot fairly be called “requirements” (contra Doc. 49-1 at 9, 12, 13, 19, 20 n.6).

21

Case 2:17-cv-07215-R-JC Document 53 Filed 01/12/18 Page 32 of 36 Page ID #:1489

1 Angeles (or any other jurisdiction), the COPS Office made clear that applicants

2 were free to contact the Office with questions. Id. ¶ 28. The Office received

3 numerous inquiries, some of which it referred to its Legal Division, but Los

4 Angeles apparently did not inquire. Id. Plaintiff objects that state law requires

5 informing detainees that they may refuse to meet with federal immigration

6 authorities, and that it “cannot determine” how the access and notice factors would

7 apply “in the context of short-term detention operations, like LAPD’s” (Doc. 1

8 ¶¶ 65-66). As the Office has made clear in this filing – and as it would have made

9 clear to Los Angeles had it asked these questions before – the Office does not

10 understand these factors to forbid a jurisdiction from informing detainees, where

11 required by law, that they may choose not to meet with immigration authorities, or

12 to require that a jurisdiction notify DHS before the release of an alien under short-

13 term detention whose release time is unknown. Dorr Decl. ¶ 26.

14 2. The Immigration-Related Factors Are Sufficiently

15

Related to the Purposes of the COPS Hiring Program

16

Plaintiff also argues that the challenged factors are not “reasonably related”

17 to the goals of the CHP (Doc. 49-1 at 18). But this aspect of Dole suggests only a

18 “possible ground” for invalidating an enactment, and does not impose an “exacting

19 standard”:

20 The Supreme Court has suggested that federal grants conditioned on

21

compliance with federal directives might be illegitimate if the

22

conditions share no relationship to the federal interest in particular

national projects or programs. This possible ground for invalidating a

23

Spending Clause statute, which only suggests that the legislation might

24

be illegitimate without demonstrating a nexus between the conditions

and a specified national interest, is a far cry from imposing an exacting

25

standard for relatedness.

26 Mayweathers v. Newland, 314 F.3d 1062, 1067 (9th Cir. 2002). Thus, conditions

27 on federal funding must only “bear some relationship to the purpose of the federal

28 spending.” Id.; see Barbour v. Washington Metro. Area Transit Auth., 374 F.3d

22

Case 2:17-cv-07215-R-JC Document 53 Filed 01/12/18 Page 33 of 36 Page ID #:1490

1 1161, 1168 (D.C. Cir. 2004) (noting that Supreme Court has never “overturned

2 Spending Clause legislation on relatedness grounds”).

3

The factors at issue here easily meet this standard (assuming they are

4 “conditions” at all). Congress established the CHP to promote “community-

5 oriented policing,” 34 U.S.C. § 10381(b)(1), (2), “to increase police presence, to

6 expand and improve cooperative efforts between law enforcement agencies and

7 members of the community to address crime and disorder problems, and otherwise

8 to enhance public safety,” Pub. L. No. 103-322, Title I, § 10003(a), 108 Stat. 1808

9 (1994) (emphasis added). Assisting in the enforcement of immigration law helps

10 achieve these goals. The COPS Office believes the intersection of illegal immigra-

11 tion and crime is a serious public safety issue that can be helpfully addressed

12 through “cooperative efforts” among federal, state, and local law enforcement.

13 Dorr Decl. ¶ 29. Indeed, Congress codified this very principle in the INA. See,

14 e.g., 8 U.S.C. § 1357(g) (providing for formal agreements under which state and

15 local officers may function as federal immigration officers); see also id. § 1324(c)

16 (authorizing state and local officers to make arrests for violations of the INA’s

17 prohibition against smuggling aliens); id. § 1252c (authorizing state and local

18 officers to arrest certain felons who have unlawfully returned to the United States).

19

The access and notice factors relate to aliens who are under detention and

20 who have either committed crimes or are suspected of having committed crimes.

21 Dorr Decl. ¶ 29. Cooperating with the Federal Government by providing basic

22 information and access allows effective enforcement of federal immigration law

23 against aliens who are criminals or suspected criminals and makes communities

24 safer. Id. The factors at issue directly advance the purposes of the CHP. They thus

25 easily clear the low bar of bearing “some relationship” to those purposes. See

26 Mayweathers, 314 F.3d at 1067.

27

28

23

Case 2:17-cv-07215-R-JC Document 53 Filed 01/12/18 Page 34 of 36 Page ID #:1491

1

C. The Challenged Factors Are Consistent with the APA

2

Plaintiff’s final claim, in Count Six, is that the decision to include the chal-

3 lenged factors for FY 2017 was “arbitrary and capricious [and] not in accordance

4 with law” in violation of the APA. This claim is also without merit. The Court of

5 Appeals has “described the arbitrary and capricious standard as deferential and

6 narrow, establishing a high threshold for setting aside agency action.” Alaska Oil

7 & Gas Ass’n v. Jewell, 815 F.3d 544, 554 (9th Cir. 2016) (internal quotation marks

8 omitted). Under this standard, a court “presume[es] the agency action to be valid

9 and affirm[s] the agency action if a reasonable basis exists for its decision.” Indep.

10 Acceptance Co. v. California, 204 F.3d 1247, 1251 (9th Cir. 2000) (internal

11 quotation marks omitted). The court has also held in numerous cases that “[a]n

12 agency action is arbitrary and capricious only if the agency relied on factors

13 Congress did not intend it to consider, entirely failed to consider an important

14 aspect of the problem, or offered an explanation that runs counter to the evidence

15 before the agency or is so implausible that it could not be ascribed to a difference in

16 view or the product of agency expertise.” E.g., All. for the Wild Rockies v. Peña,

17 865 F.3d 1211, 1217 (9th Cir. 2017) (internal quotation marks omitted). This

18 review is even more deferential where, as here, the question relates to the interpre-

19 tation of a statute the defendants are responsible for administering, especially where

20 gaps in the statute require the agency to exercise discretion. See Wash. Dep’t of

21 Ecology v. EPA, 752 F.2d 1465, 1469 (9th Cir. 1985) (“By leaving a gap in the

22 statute, Congress implicitly has delegated policy-making authority to the agency.”).

23

The challenged factors violate none of these parameters. As detailed above,

24 Congress established the CHP to promote public safety, cooperation among law

25 enforcement agencies, and community-oriented policing, and thus intended DOJ to

26 consider those aims in awarding grants. Those goals are enhanced by facilitating

27 federal access to aliens who have violated immigration law and who have violated,

28 or are suspected of violating, state or local criminal laws. Nothing in the statutes

24

Case 2:17-cv-07215-R-JC Document 53 Filed 01/12/18 Page 35 of 36 Page ID #:1492

1 governing CHP suggests DOJ should not consider the extent to which a jurisdiction

2 cooperates in the enforcement of immigration law when exercising its discretion to

3 disseminate scarce federal resources. Thus, the scoring factors have more than a

4 “reasonable basis” and easily satisfy the “deferential and narrow” APA standard.

5 Indep. Acceptance Co., 204 F.3d at 1251; Alaska Oil & Gas Ass’n, 815 F.3d at 554.

6 This is especially true given that the COPS Office must necessarily develop and

7 apply means of choosing among applicants beyond those stated in the statute.

8

In response, plaintiff argues that the challenged factors are arbitrary and

9 capricious because defendants have not presented “tangible evidence” to support

10 them (Doc. 49-1 at 21). But the City misunderstands the nature of APA review. As

11 noted already, this standard is satisfied if there is a “reasonable basis” for the

12 agency’s decision, and the burden is on the plaintiff to show that the challenged

13 action is arbitrary and capricious, not on the defendants to disprove plaintiff’s

14 claim. See Pierce v. SEC, 786 F.3d 1027, 1035 (D.C. Cir. 2015); Quechan Tribe of

15 Ft. Yuma Indian Reservation v. U.S. Dep’t of the Interior, 927 F. Supp. 2d 921, 928

16 (S.D. Cal. 2013), aff’d, 673 F. App’x 709 (9th Cir. 2016).

17

Moreover, in an apparent attempt to satisfy its burden, Los Angeles asserts

18 that certain “studies show an inverse relationship” between violent crime and a

19 refusal to cooperate with federal immigration authorities (Doc. 49-1 at 22). On this

20 basis, plaintiff contends that “DOJ’s policy actually undermines public safety” (id.

21 at 23). But those assertions only reflect a “difference in view” with the Federal

22 Government regarding how best to promote public safety. See All. for the Wild

23 Rockies, 865 F.3d at 1217. Los Angeles is entitled to its views, but its disagree-

24 ment does not establish a violation of the APA.

25

CONCLUSION

26

Accordingly, plaintiff’s motion for partial summary judgment should be

27 denied, and judgment should be entered for the defendants on Counts Four, Five,

28 and Six.

25

Case 2:17-cv-07215-R-JC Document 53 Filed 01/12/18 Page 36 of 36 Page ID #:1493

1 Dated: January 12, 2018 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28

Respectfully submitted,
CHAD A. READLER Acting Assistant Attorney General
SANDRA R. BROWN United States Attorney
JOHN R. TYLER Assistant Director
/s/ W. Scott Simpson
W. SCOTT SIMPSON (Va. Bar #27487) Senior Trial Counsel
Attorneys, Department of Justice Civil Division, Room 7210 Federal Programs Branch Post Office Box 883 Washington, D.C. 20044 Telephone:(202) 514-3495 Facsimile: (202) 616-8470 E-mail: scott.simpson@usdoj.gov
COUNSEL FOR DEFENDANTS

26

 </s> Case 2:17-cv-07215-R-JC Document 57 Filed 01/29/18 Page 1 of 33 Page ID #:2022

1 MICHAEL N. FEUER, SBN 111529

MITCHELL A. KAMIN, SBN 202788

2 City Attorney JAMES P. CLARK, SBN 64780
3 Chief Deputy City Attorney

MÓNICA RAMÍREZ ALMADANI, SBN 234893 NEEMA T. SAHNI, SBN 274240

4 LEELA A. KAPUR, SBN 125548 Executive Assistant City Attorney
5 VALERIE L. FLORES, SBN 138572

Covington & Burling LLP 1999 Avenue of the Stars, Suite 3500 Los Angeles, California 90067-4643

6 Managing Senior Assistant City Attorney mkamin@cov.com

MICHAEL DUNDAS, SBN 226930

Telephone: (424) 332-4800

7 Deputy City Attorney

Facsimile: (424) 332-4749

8 200 North Main Street, City Hall East Suite 800
9 Los Angeles, California 90012

DAVID M. ZIONTS, admitted pro hac vice

10 james.p.clark@lacity.org

IVANO M. VENTRESCA, admitted pro

11

Telephone: (213) 978-8344 Facsimile: (213) 978-8312

hac vice Covington & Burling LLP

12

One CityCenter

13

850 Tenth Street NW Washington, DC 20001

14

dzionts@cov.com

15

Telephone: (202) 662-6000 Facsimile: (202) 662-5987

16

17 Attorneys for Plaintiff City of Los Angeles

18

UNITED STATES DISTRICT COURT

19

FOR THE CENTRAL DISTRICT OF CALIFORNIA

20

21 22 CITY OF LOS ANGELES,

Case No. 2:17-cv-07215-R-JCx

23

Plaintiff,

24

v.

25

26

JEFFERSON B. SESSIONS, III, in his official capacity as Attorney General of the

27 United States; ALAN R. HANSON, in his

28 official capacity as Acting Assistant

CITY OF LOS ANGELES’ REPLY IN SUPPORT OF MOTION FOR PARTIAL SUMMARY JUDGMENT AND OPPOSITION TO DEFENDANTS’ MOTION FOR PARTIAL SUMMARY JUDGMENT
Judge: The Honorable Manuel L. Real

CITY OF LOS ANGELES’ REPLY IN SUPPORT OF MOTION FOR PARTIAL SUMMARY JUDGMENT AND OPPOSITION TO DEFENDANTS’ MOTION FOR PARTIAL SUMMARY JUDGMENT

Case 2:17-cv-07215-R-JC Document 57 Filed 01/29/18 Page 2 of 33 Page ID #:2023

1 Attorney General of the Office of Justice 2 Programs; RUSSELL WASHINGTON, in
his official capacity as Acting Director of 3 the Office of Community Oriented Policing 4 Services; UNITED STATES
DEPARTMENT OF JUSTICE. 5

6

Defendants.

7

8

9

10

11

12

13

14

15

16

17

18

19

20

21

22

23

24

25

26

27

28

Date: February 20, 2018 Time: 10:00 a.m.

CITY OF LOS ANGELES’ REPLY IN SUPPORT OF MOTION FOR PARTIAL SUMMARY JUDGMENT AND OPPOSITION TO DEFENDANTS’ MOTION FOR PARTIAL SUMMARY JUDGMENT

Case 2:17-cv-07215-R-JC Document 57 Filed 01/29/18 Page 3 of 33 Page ID #:2024

1

TABLE OF CONTENTS

2 INTRODUCTION .................................................................................................... 1

3 ARGUMENT ............................................................................................................ 3

4 I. 5 6

Defendants’ Attempt To Evade Judicial Review Fails. ................................. 3
A. Los Angeles Has Standing Because It Suffered Competitive Injury In The 2017 COPS Grant Cycle. .............................................................. 3

7

B. The Case Is Not Moot. ......................................................................... 4

8

1. The “Capable of Repetition, Yet Evading Review” Doctrine

9

Applies. ...................................................................................... 5

10 11 12 13 II. 14

2. Defendants Are Not Entitled To Summary Judgment On The Question Of Whether Los Angeles Would Have Received A FY 2017 Award................................................................................ 8
Plaintiff Is Entitled To Judgment As A Matter of Law. ................................. 9
A. The Challenged Considerations Are Ultra Vires. ................................ 9

15

1. DOJ Lacks Statutory Authority To Use The COPS Program To

16

Pressure States And Local Communities To Change Laws, Regulations, And Policies Unrelated To The Program As

17

Created By Congress................................................................ 11

18

2. DOJ Cannot Divert Funds That Congress Designated For

19

Community Policing To Federal Civil Immigration

Enforcement. ............................................................................ 15

20

21

3. The Choice Before The Court Is Not Unfettered Agency Power Or Grant Awards Chosen By Lottery. ..................................... 17

22

B. The Challenged Considerations Violate The Spending Clause Because

23

Defendants Cannot Identify Any Reasonable Relationship They Bear

24

To The Community Policing Purpose Of The COPS Program. ........ 20

25

C. The Challenged Considerations Are Arbitrary And Capricious. ....... 21

26 III. An Injunction Barring Defendants From Using The Invalid Considerations Is

27

Appropriate. .................................................................................................. 23

28 CONCLUSION ....................................................................................................... 24

CITY OF LOS ANGELES’ REPLY IN SUPPORT OF MOTION FOR PARTIAL SUMMARY JUDGMENT AND OPPOSITION TO DEFENDANTS’ MOTION FOR PARTIAL SUMMARY JUDGMENT

Case 2:17-cv-07215-R-JC Document 57 Filed 01/29/18 Page 4 of 33 Page ID #:2025

1

TABLE OF AUTHORITIES

2

Page(s)

3 Cases

4 Adarand Constructors, Inc. v. Pena,

5

515 U.S. 200 (1995)........................................................................................................ 4

6 Alaska Fish & Wildlife Fed’n & Outdoor Council, Inc. v. Dunkle,

7

829 F.2d 933 (9th Cir. 1987) .......................................................................................... 7

8

Alaska Oil & Gas Ass’n v. Jewell, 815 F.3d 544 (9th Cir. 2016) ........................................................................................ 22

9

10

Az. Cattle Growers’ Ass’n v. U.S. Fish & Wildlife, Bureau of Land Mgmt., 273 F.3d 1229 (9th Cir. 2001) ...................................................................................... 22

11 Barilla v. Ervin,

12

886 F.2d 1514 (9th Cir. 1989), overruled on other grounds by Simpson v.

13

Lear Astronics Corp., 77 F.3d 1170 (9th Cir. 1996) ...................................................... 5

14 Bresgal v. Brock,

15

843 F.2d 1163 (9th Cir. 1987) ...................................................................................... 24

16 Bullfrog Films, Inc. v. Wick, 847 F.2d 502 (9th Cir. 1988) .......................................................................................... 3
17

18

Califano v. Yamasaki, 442 U.S. 682 (1979)...................................................................................................... 23

19

20

Chamber of Commerce of U.S. v. Whiting, 563 U.S. 582 (2011)...................................................................................................... 10

21 Com. Va., Dep’t of Educ. v. Riley,

22

106 F.3d 559 (4th Cir. 1997) (en banc) .................................................................. 13, 14

23 Coral Const. Co. v. King Cty.,

24

941 F.2d 910 (9th Cir. 1991) .......................................................................................... 4

25 DeCanas v. Bica,

26

424 U.S. 351 (1976)...................................................................................................... 15

27 Decker v. O’Donnell, 661 F.2d 598 (7th Cir. 1980) ........................................................................................ 23
28

ii
CITY OF LOS ANGELES’ REPLY IN SUPPORT OF MOTION FOR PARTIAL SUMMARY JUDGMENT AND OPPOSITION TO DEFENDANTS’ MOTION FOR PARTIAL SUMMARY JUDGMENT

Case 2:17-cv-07215-R-JC Document 57 Filed 01/29/18 Page 5 of 33 Page ID #:2026

1 Defenders of Wildlife v. Jewell,

2

176 F. Supp. 3d 975, 1004 (D. Mont. 2016)................................................................. 22

3 Easyriders Freedom F.I.G.H.T. v. Hannigan,

4

92 F.3d 1486 (9th Cir. 1996) ........................................................................................ 24

5 Ely v. Velde, 451 F.2d 1130 (4th Cir. 1971) ...................................................................................... 13
6

7

Friends of the Earth, Inc. v. Laidlaw Envtl. Servs. (TOC), Inc., 528 U.S. 167 (2000)........................................................................................................ 6

8

9

Gregory v. Ashcroft, 501 U.S. 452 (1991)...................................................................................................... 13

10 Honig v. Doe,

11

484 U.S. 305 (1988)........................................................................................................ 6

12 Karuk Tribe of California v. United States Forest Serv.,

13

681 F.3d 1006 (9th Cir. 2012) ........................................................................................ 5

14 Kingdomware Technologies, Inc. v. United States,

15

136 S. Ct. 1969 (2016).................................................................................................... 5

16 Lewis v. Continental Bank Corp.,

17

494 U.S. 472 (1990)........................................................................................................ 6

18

Los Angeles Cty. v. Davis, 440 U.S. 625 (1979)........................................................................................................ 7

19

20

Murphy v. Hunt, 455 U.S. 478 (1982)........................................................................................................ 5

21 NE Fla. Chapter of Associated Gen. Contractors of America v. Jacksonville,

22

508 U.S. 656 (1993)........................................................................................................ 3

23 Nevada v. Skinner,

24

884 F.2d 445 (9th Cir. 1989) ........................................................................................ 20

25 New York v. United States,

26

505 U.S. 144 (1992)...................................................................................................... 20

27 Pacific Coast Fed’n of Fishermen’s Ass’ns v. U.S. Bureau of Reclamation,

28

426 F.3d 1082 (9th Cir. 2005) ...................................................................................... 22

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1 Philadelphia v. Sessions,

2

2017 WL 5489476 (E.D. Pa. Nov. 15, 2017), appeal filed (3d Cir. Jan.

18, 2018) ....................................................................................................................... 21

3

4

Preston v. Heckler, 734 F.2d 1359 (9th Cir. 1984) ........................................................................................ 3

5

6

Regents of the University of California v. Bakke, 438 U.S. 265 (1978)........................................................................................................ 3

7 Robbins v. Reagan,

8

780 F.2d 37 (D.C. Cir. 1985) .................................................................................... 9, 11

9 Ry. Labor Execs. Ass’n v. Nat’l Mediation Bd.,

10

29 F.3d 655 (D.C. Cir. 1994) (en banc)........................................................................ 12

11 Santa Clara v. Trump,

12

2017 WL 5569835 (N.D. Cal. Nov. 20, 2017) ............................................................. 23

13 Schism v. United States,

14

316 F.3d 1259 (Fed. Cir. 2002) .................................................................................... 19

15

Skaff v. Meridien N. Am. Beverly Hills, LLC, 506 F.3d 832 (9th Cir. 2007) .......................................................................................... 4

16

17

South Dakota v. Dole, 483 U.S. 203 (1987)...................................................................................................... 12

18 Texas v. United States,

19

809 F.3d 134 (5th Cir. 2015), aff’d by an equally divided court, 136 S.

20

Ct. 2271 (2016) ............................................................................................................. 23

21 Washington v. Trump,

22

847 F.3d 1151 (9th Cir. 2017) ...................................................................................... 23

23

Wolfson v. Brammer, 616 F.3d 1045 (9th Cir. 2010) ........................................................................................ 7

24

25 Statutes and Legislative History Materials

26 5 U.S.C. § 706(2)(A).......................................................................................................... 21

27 8 U.S.C. § 1357(g) ....................................................................................................... 16, 17

28 34 U.S.C. § 10122 .............................................................................................................. 14

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1 34 U.S.C. § 10381 .................................................................................... 2, 9, 11, 13, 15, 19

2 34 U.S.C. § 10382 ........................................................................................................ 18, 19 3
42 U.S.C. § 3766(a) ........................................................................................................... 14 4

5

Controlling Crime Through More Effective Law Enforcement: Hearings Before the Subcomm. on Criminal Laws and Procedure of the S. Comm.

6

on the Judiciary, 90th Cong. (1967) ............................................................................. 14

7 Pub. L. No. 103-322........................................................................................................... 16
8 S. Rep. 90-1097, 1968 U.S.C.C.A.N. 2112, 2276 (1968) ................................................. 13 9

10

11

12

13

14

15

16

17

18

19

20

21

22

23

24

25

26

27

28

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1

INTRODUCTION

2

The U.S. Department of Justice (“DOJ”) asks this Court to endorse a boundless

3 interpretation of its own authority. Defendants assert that DOJ may transform a grant

4 program that Congress expressly designed to support the hiring of state and local officers

5 for “deployment in community-oriented policing” (the “COPS grant”), into a tool to

6 pressure states and localities to adopt the unrelated immigration policy preferences of the

7 Attorney General. In Fiscal Year (“FY”) 2017, that preference was for states and

8 localities to “partner” with federal immigration authorities, and otherwise participate in

9 enforcing federal civil immigration law (the “Challenged Considerations”). In future

10 years, if DOJ has this authority, the Attorney General might decide to favor states that

11 abolish the death penalty (or promise to impose it more frequently); or states that

12 strengthen (or relax) their gun laws; or states that criminalize (or legalize) marijuana.

13 The ways in which DOJ might, in the future, use an unrelated grant program to induce

14 sovereign states to change their laws and policies are limitless.

15

Congress did not silently grant such a power when it authorized DOJ to administer

16 a grant program for the hiring of state and local officers to engage in community policing.

17 Remarkably, after Los Angeles highlighted the sweeping implications of Defendants’

18 position, Defendants did not attempt to suggest any limit on what DOJ may do under the

19 guise of administering the COPS grant. Instead, they resorted to arguing against a straw

20 man: DOJ must have the power to favor or disfavor applicants on any grounds the

21 Attorney General pleases, or else DOJ would be reduced to selecting grant recipients by

22 random lottery. This hyperbole cannot be squared with the statute. Congress defined the

23 contours of the COPS program and left the agency administering it with substantial room

24 to exercise its judgment within the confines of that program and its purposes. It does not

25 follow that DOJ can use its control over the purse strings to pressure states and localities

26 to adopt unrelated laws and policies, or to divert grant funds to a purpose having nothing

27 to do with community-oriented policing.

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1

Rather than confront the City’s arguments, Defendants ignore or implicitly

2 concede them. For example, Defendants do not dispute that their interpretation of the

3 COPS statute would render superfluous the only provision in which Congress did

4 authorize DOJ to give preference to an applicant based on its adoption of policies

5 unrelated to the need for, or use of, COPS grant funds. See 34 U.S.C. § 10381(c)(2)-(3)

6 (permitting preferential consideration to be given to states with certain laws providing for

7 lenient treatment of human trafficking victims). That provision confirms that Congress

8 did not intend to empower DOJ to use COPS grants to obtain other unrelated policy

9 concessions from states and localities.

10

Defendants also do not provide an explanation for how combating illegal

11 immigration relates to Congress’s goal to fund community policing. They instead invoke

12 the “belie[f]” of the COPS Office (Defs.’ Br. 23) that illegal immigration is a public

13 safety issue. Even assuming arguendo that this “belie[f]” were based in fact—which it is

14 not—Congress did not create the COPS program to fund any kind of policing that relates

15 to an asserted public safety interest. The agency cannot disregard the express statutory

16 purpose of a grant program it is charged with administering, and Defendants offer no

17 explanation for why they may do so here.

18

Defendants also seek to insulate this usurpation of Legislative Branch authority

19 from review by the Judicial Branch. They claim the case is moot because, on the

20 unilateral declaration of a COPS Office employee, Los Angeles would not have received

21 a 2017 grant anyway. Defendants ask the Court to treat this representation as conclusive

22 despite admitting a material misrepresentation in their rush to make a similar claim in

23 response to the City’s application for a preliminary injunction, which ultimately caused

24 the City to withdraw that motion. More fundamentally, however, it does not matter what

25 would have happened in the 2017 grant cycle. Los Angeles plainly has standing to

26 challenge the competitive injury it suffered, and an annual grant program is the paradigm

27 case for the “capable of repetition, yet evading review” exception to mootness. There is

28 more than a reasonable expectation that Los Angeles will apply for another COPS

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1 grant—indeed, it intends to do so this year—and that DOJ will use improper

2 immigration-related considerations to disfavor the City. Defendants cannot benefit from

3 their misrepresentation—which eliminated any possibility of obtaining preliminary relief

4 for the 2017 grant cycle—and then use the short timeframe in which COPS funding is

5 applied for and granted to insulate from review their unlawful overreach of federal

6 agency authority.

7

The Court should therefore grant partial summary judgment to Plaintiff, deny

8 Defendants’ motion for partial summary judgment, and enter final judgment under

9 Federal Rule of Civil Procedure 54(b) in favor of Plaintiff on Counts Four, Five, and Six;

10 declare that Defendants’ actions are unlawful; and enjoin them from administering the

11 COPS program in this unlawful manner going forward.

12

ARGUMENT

13 I. 14
15
16

Defendants’ Attempt To Evade Judicial Review Fails.
A. Los Angeles Has Standing Because It Suffered Competitive Injury In The 2017 COPS Grant Cycle.
This is a case of competitive harm: the federal agency charged with awarding

17 grants consistent with a congressional statute, here DOJ, unlawfully favored Los

18 Angeles’ competitors for a federal grant, and the City sued to restore the competition to a

19 level, and lawful, playing field. “Such competitive injuries have often been recognized as

20 grounds for standing.” Bullfrog Films, Inc. v. Wick, 847 F.2d 502, 506 (9th Cir. 1988).

21 Thus, “when challenged agency conduct allegedly renders a person unable to fairly

22 compete for some benefit, that person has suffered a sufficient ‘injury in fact’ and has

23 standing.” Preston v. Heckler, 734 F.2d 1359, 1365 (9th Cir. 1984); see also Regents of

24 the Univ. of Cal. v. Bakke, 438 U.S. 265, 281 n.14 (1978).

25

In such cases, it is not necessary for the plaintiff to show that it would have

26 received the award, contract, or other benefit it sought but for the unfair disadvantage it 27 faced. “[T]he ‘injury in fact’ is the inability to compete on an equal footing in the 28 bidding process, not the loss of a contract” or other benefit. NE Fla. Chapter of

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1 Associated Gen. Contractors of America v. Jacksonville, 508 U.S. 656, 666 (1993); see

2 also Adarand Constructors, Inc. v. Pena, 515 U.S. 200, 211 (1995) (“[Plaintiff] need not

3 demonstrate that it has been, or will be, the low bidder on a Government contract. . . .

4 The aggrieved party ‘need not allege that he would have obtained the benefit but for the

5 barrier in order to establish standing.’” (internal citation omitted)); Coral Const. Co. v.

6 King Cty., 941 F.2d 910, 930 (9th Cir. 1991) (stating that a construction company

7 challenging a set-aside for women-owned businesses was injured “every time the

8 company simply places a bid”).

9

“The existence of standing turns on the facts as they existed at the time the plaintiff

10 filed the complaint.” Skaff v. Meridien N. Am. Beverly Hills, LLC, 506 F.3d 832, 838

11 (9th Cir. 2007). Los Angeles filed this lawsuit after DOJ announced that it would give

12 preferential treatment to COPS applicants based on unlawful considerations, and before

13 DOJ made awards on the basis of the Challenged Considerations. The City did not agree

14 to DOJ’s demands in order to receive the preferential treatment accorded to its

15 competitors, and so was forced to compete on an uneven playing field. This injury more

16 than suffices to establish the City’s standing.

17

B. The Case Is Not Moot.

18

Defendants offer no argument that the City’s competitive injury did not provide it

19 standing at the time it filed its complaint. Instead, Defendants argue that later

20 developments mooted the case: DOJ issued the 2017 COPS awards on November 20,

21 2017, Request for Judicial Notice (“RJN”) (ECF 49-3) Ex. H, Nov. Press Release, and—

22 according to the unilateral assertions of Defendants—the City would not have won an

23 award anyway. There are reasons to doubt Defendants’ representations at this stage of

24 the litigation, particularly since they have already admitted to making a misrepresentation

25 related to this question in an earlier filing. But the more fundamental point is that it does

26 not matter whether the illegal considerations made a difference in the City’s application

27 this year: DOJ’s use of impermissible criteria to make COPS awards is capable of

28

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1 repetition, and the short duration of the grant cycle means that it would inherently evade

2 review.

3

1. The “Capable of Repetition, Yet Evading Review” Doctrine

4

Applies.

5

There is a well-established exception to mootness where “(1) ‘the challenged

6 action [is] in its duration too short to be fully litigated prior to cessation or expiration,’

7 and (2) ‘there [is] a reasonable expectation that the same complaining party [will] be

8 subject to the same action again.’” Kingdomware Technologies, Inc. v. United States,

9 136 S. Ct. 1969, 1976 (2016) (quoting Spencer v. Kemna, 523 U.S. 1, 17 (1998)).

10 Agency actions lasting only one or two years evade judicial review as a matter of law.

11 See id. (“We have previously held that a period of two years is too short to complete

12 judicial review of the lawfulness of the procurement.”); see also Karuk Tribe of Cal. v.

13 U.S. Forest Serv., 681 F.3d 1006, 1017-18 (9th Cir. 2012) (“We have repeatedly held that

14 similar actions lasting only one or two years evade review.”). Since COPS grants are

15 awarded annually, see Decl. of Andrew Dorr ¶ 10 (ECF 53-1), DOJ’s unlawful

16 administration of those awards necessarily would evade review. See Wright & Miller,

17 Fed. Prac. & Proc. § 3533.8 (3d ed. 2017) (noting the “wide array of circumstances [that]

18 have led courts to deny mootness” as capable of repetition yet evading review, including

19 “disputes over the terms or awards of government contracts or grants [which] often

20 involve short contract periods and repeat bidders”).

21

In order to establish the second prong of the capable of repetition doctrine, all a

22 plaintiff must show is a “reasonable expectation,” rather than a “mere physical or

23 theoretical possibility,” that it will be subject to the challenged action in the future.

24 Murphy v. Hunt, 455 U.S. 478, 483 (1982). This standard is “not a very demanding one.”

25 Barilla v. Ervin, 886 F.2d 1514, 1520 (9th Cir. 1989), overruled on other grounds by

26 Simpson v. Lear Astronics Corp., 77 F.3d 1170, 1174 (9th Cir. 1996). The question is

27 simply “whether the controversy [is] capable of repetition and not . . . whether the

28 claimant ha[s] demonstrated that a recurrence of the dispute [is] more probable than not.”

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1 Honig v. Doe, 484 U.S. 305, 318 n.6 (1988). Indeed, the Supreme Court has found that

2 the exception to mootness applies when the plaintiff’s expectations of recurrence “were

3 hardly demonstrably probable.” Id. And it is Defendants that bear the “heavy burden of

4 persua[ding] the court that the challenged conduct cannot reasonably be expected to start

5 up again.” Friends of the Earth, Inc. v. Laidlaw Envtl. Servs. (TOC), Inc., 528 U.S. 167,

6 189 (2000).1

7

Los Angeles reasonably expects to suffer the same competitive disadvantage in

8 future grant cycles. Defendants insist that the COPS Office at DOJ has not yet decided

9 whether to use the same immigration-related factors in the FY 2018 process. Defs.’ Br.

10 12. But the use of such factors in grant decisions has been a loudly proclaimed priority of

11 the Attorney General as head of DOJ.2 DOJ’s announcement of this past year’s COPS

12 grants oddly said nothing at all about the community-oriented policing programs being

13 funded, but instead boasted of its success in persuading applicants to participate in civil

14 immigration enforcement. RJN, Ex. H, Nov. Press Release. Defendants cannot seriously

15 dispute that there is a reasonable expectation the same Attorney General could act on the

16 same priorities this year and in future years.

17

Defendants also claim that the City can have no reasonable expectation of its injury

18 recurring because it does not apply for the COPS grant every year. Defs.’ Br. 13. Los

19 Angeles has, however, applied for the grant for the past two years. Dorr Decl. ¶ 36.

20 Moreover, the City intends to apply for the COPS grant in the FY 2018 grant cycle.

21

22 1 Defendants’ reference to the “likelihood of future injury” standard for seeking

23

injunctive relief, Defs.’ Br. 12, is inapposite. The “capable of repetition” doctrine is an exception to this standard. When it applies, as it does here, it permits “suits for

24 prospective relief to go forward” based only on a “reasonable expectation” of future

25 injury. Lewis v. Continental Bank Corp., 494 U.S. 472, 481 (1990).

26

2 See, e.g., Attorney General Jeff Sessions Delivers Remarks on Sanctuary Jurisdictions, DOJ (March 27, 2017), https://www.justice.gov/opa/speech/attorney-general-jeff-

27 sessions-delivers-remarks-sanctuary-jurisdictions.

28

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1 Decl. of Stella Larracas ¶ 5. It is thus quite likely that Los Angeles will apply for the

2 COPS grant again and face a competitive disadvantage in doing so—more than satisfying

3 the “reasonable expectation” standard that does not even require a probability of future

4 injury.3

5

Finally, there is a strong public interest in application of the “capable of repetition

6 yet evading review” doctrine here. See Los Angeles Cty. v. Davis, 440 U.S. 625, 643

7 (1979); Alaska Fish & Wildlife Fed’n & Outdoor Council, Inc. v. Dunkle, 829 F.2d 933,

8 939 (9th Cir. 1987). If Los Angeles is correct that DOJ is making grant determinations in

9 an unconstitutional and unauthorized manner, the public has a profound interest in

10 ensuring that this overreach of DOJ authority be stopped for future grant cycles. But

11 Defendants would require judicial review to be confined to the narrow window of time

12 between the agency’s grant solicitation and announcement of awards. Los Angeles

13 attempted just that; there was no possibility of fully litigating the case during the window,

14 and the City was persuaded to withdraw its request for a preliminary injunction by what

15 turned out to be misrepresentations by DOJ. See infra I.B.2. The dubious manner in

16 which Defendants induced the City to abandon its request for emergency relief for the FY

17 2017 cycle only underscores the importance of resolving the legality of Defendants’

18 actions going forward.

19

20

21

22

23 3 Although it is sufficiently likely that Los Angeles will apply for a COPS grant in FY

24 2018, Defendants are wrong to focus on whether the City’s future injury will recur in the

25

coming year. See Wolfson v. Brammer, 616 F.3d 1045, 1054-55 (9th Cir. 2010) (election law challenge by former candidate not moot where the candidate intended to run again in

26 the future, but not “in the next election”). Even if the City’s historical record of applying

27

for the COPS grant 39% of the time were assumed to be predictive, that would almost certainly mean that the City will apply for a COPS grant again during the present

28 Administration.

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1

2. Defendants Are Not Entitled To Summary Judgment On The

2

Question Of Whether Los Angeles Would Have Received A FY

2017 Award.

3

For the reasons explained above, the City plainly has a basis to seek prospective

4 relief; whether or not Los Angeles actually lost funding in the 2017 grant cycle due to use

5 of the illegal immigration factors is irrelevant. But if that question were relevant, it could 6 not be resolved against the City on summary judgment.

7

When the City moved for a preliminary injunction, a DOJ official claimed under

8 penalty of perjury that no applicant that selected “Illegal Immigration” as a focus area

9 scored high enough to receive further consideration. Decl. of Andrew Dorr ¶ 24 (ECF

10 33-1), Opp. to Pl.’s Mot. for Preliminary Injunction. Defendants evidently considered

11 this “fact” relevant to their ultimate point: that Los Angeles allegedly would not receive

12 an award regardless of the use of immigration-related factors, which persuaded the City

13 to withdraw its application. But Defendants’ representation, which it has now been

14 revealed was made before the scoring process was complete, turns out to have been false,

15 as Defendants now admit. Defs.’ Br. 8 n.3; Dorr Decl. ¶ 35 n.5 (ECF 53-1). The same

16 declarant, having retracted part of his earlier statement, still maintains that Los Angeles

17 did not lose an award on account of the Challenged Considerations. Dorr Decl. ¶ 27

18 (ECF 53-1). Perhaps so, but Defendants cannot reasonably expect the claims of an

19 admittedly unreliable declarant to carry the day on summary judgment without any

20 discovery, especially when the COPS Office’s scoring data show that $8.5 million in FY

21 2017 funding was awarded to jurisdictions that scored lower than Los Angeles but for

22 bonuses resulting from the Challenged Considerations. Dorr Decl. Ex. C & D (ECF 53-

23 1) (specifically those large population agencies identified as “999,” “Laredo, City of,”

24 “650,” “1029,” “889,” and “929”). Before judgment could be granted in favor of

25 Defendants, the City would need the opportunity for discovery on, among other things,

26 how the COPS Office calculated its scores and the factors affecting Los Angeles’ ability

27 to receive a COPS grant. To be clear, no discovery is necessary for the Court to grant the

28

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1 City’s motion for summary judgment for the reasons explained above, but Defendants are

2 not entitled to summary judgment in their favor based on what they claim happened

3 during the 2017 grant process on the current state of the record.

4 II. Plaintiff Is Entitled To Judgment As A Matter of Law.

5

This Court should grant Los Angeles’ motion for partial summary judgment, and

6 deny Defendants’ motion, because the Challenged Considerations are ultra vires, violate

7 the Spending Clause, and are arbitrary and capricious under the Administrative Procedure

8 Act (“APA”).

9

A. The Challenged Considerations Are Ultra Vires.

10

In enacting the COPS program, Congress delegated authority to DOJ for a specific

11 purpose: to fund states and localities in the hiring and rehiring of law enforcement

12 officers for “deployment in community-oriented policing.” 34 U.S.C. § 10381(b)(1), (2).

13 Defendants acknowledge this statutory purpose. Defs.’ Br. 4. And although they ignore

14 it, they do not contest the basic principle that “[w]hen Congress limits the purpose for

15 which a grant can be made, it can be presumed that it intends that the dispersing agency

16 makes its allocations based on factors solely related to the goal of implementing the

17 stated statutory purposes in a reasonable fashion, rather than taking irrelevant or

18 impermissible factors into account.” Robbins v. Reagan, 780 F.2d 37, 48 (D.C. Cir.

19 1985) (emphasis added); see Pl.’s Br. 1-12.

20

DOJ refuses to recognize that this inherent limit on Congress’s delegation binds

21 the agency, instead insisting on its prerogative to make award determinations based on

22 impermissible factors untethered to the statutory purpose. First, DOJ is providing

23 preferential treatment to states and localities that certify “partnership” with federal civil

24 immigration authorities, in the form of particular laws, regulations, or policies the

25 jurisdiction has in place (the “Notice and Access requirements”)—despite the fact that

26 such partnership is unrelated to the need for, or use of, COPS funds. Second, DOJ is

27 awarding bonus points to, and authorizing COPS funds to be used by, state and local law

28

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1 enforcement agencies that are willing to use grant money to focus on “Illegal

2 Immigration,” diverting COPS funds to federal immigration enforcement and away from

3 their statutorily authorized purpose of state and local community policing.

4

DOJ thus has structured the COPS grant process to incentivize states and local

5 communities to change their laws and regulations to fit DOJ policy preferences, and to

6 “focus” grant funds on matters having nothing to do with the statutory purpose of the

7 grant program created by Congress. Strikingly, when confronted with the extraordinary

8 implications of their position, see Pl.’s Br. 15-16, Defendants do not deny them. DOJ

9 admits by its silence that it could use the COPS grant program to pressure states to

10 abolish (or impose) capital punishment, to crack down on (or legalize) marijuana, to

11 restrict (or expand) gun rights, and more. Indeed, if Defendants prevail here, a later

12 Administration could decide to punish COPS applicants from states that have non-

13 preempted anti-immigration laws. Cf. Chamber of Commerce of U.S. v. Whiting, 563

14 U.S. 582 (2011).

15

Rather than explain how Congress could have meant to delegate so much authority

16 sub silentio, Defendants attack a straw man. If DOJ does not have complete discretion to

17 make grant decisions based on any factor, they assert, the agency would be reduced to

18 “choos[ing] the winning applicants via random lottery.” Defs.’ Br. 15. That is plainly

19 not what the City is suggesting. Congress delegated ample discretion for DOJ to make

20 grant decisions based on its evaluation of the applicants’ need for, and proposed use of,

21 grant funds, viewed in light of the significant guidance Congress provided on the purpose

22 of the grant it authorized and what an applicant should include in its application. It does

23 not follow that DOJ may hijack the COPS program to promote the Attorney General’s

24 own unrelated policy agenda. The agency’s attempt to do so here is ultra vires.

25

26

27

28

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1

1. DOJ Lacks Statutory Authority To Use The COPS Program To

2

Pressure States And Local Communities To Change Laws,

Regulations, And Policies Unrelated To The Program As Created

3

By Congress.

4

Defendants do not seriously dispute that the Notice and Access requirements are

5 unrelated to a state’s or locality’s need for, or use of, COPS funds. See Pl.’s Br. 12-13.

6 This concession establishes that the agency lacks authority to structure the grant program

7 to disfavor communities that are unwilling or unable to certify to these forms of

8 “partnership” with federal civil immigration authorities. See Robbins, 780 F.2d at 48.

9

The text and structure of the statute confirm that using the grant process to promote

10 changes to unrelated local laws and policies was not authorized by Congress. Rather,

11 Congress authorized DOJ to use COPS funds to encourage states and localities to change

12 their laws unrelated to the need for, or use of, COPS funds in only one area: laws on

13 human trafficking victims. See 34 U.S.C. § 10381(c)(2)-(3). Specifically, the statute

14 provides that DOJ “may” give “preferential consideration” to COPS applicants from

15 states that adopt certain laws granting leniency to victims of human trafficking. Id. But

16 in Defendants’ view, DOJ has inherent authority to give preferential consideration to

17 state and local governments that adopt any law or regulation the agency wishes to

18 promote. If DOJ has this broad power, there would have been no reason for Congress to

19 authorize one narrow use of such authority. Defendants do not even attempt to deny that

20 their reading of the statute would make subsection (c) superfluous.

21

Instead, Defendants note that the subsection (c) considerations are “not

22 mandatory.” Defs.’ Br. 16. That does not help Defendants—it proves the City’s point.

23 If the statutory baseline were that DOJ is permitted to favor COPS applicants based on

24 any unrelated laws and regulations, it would not have been superfluous for Congress to

25 require the agency to favor applicants with respect to one such area, i.e., laws that protect

26 victims of human trafficking. But that is not what subsection (c) does, as DOJ

27 recognizes. By enacting that provision as “discretionary,” Defs.’ Br. 16, Congress

28

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1 recognized that without it, DOJ lacked the discretion to favor or disfavor applicants based

2 on their laws and regulations.

3

Defendants next insist that if subsection (c) means what it says, DOJ would be able

4 to consider only whether an applicant has the preferred laws against human trafficking in

5 place, and otherwise would have to draw lots to make grant awards. See Defs.’ Br. 16 &

6 n.6. This is a straw man. DOJ has ample discretion to weigh an applicant’s need for

7 COPS funds, and its proposed use of such funds. See infra II.A.3. Recognizing that DOJ

8 cannot generally give preferential treatment based on applicants’ unrelated laws and

9 policies hardly turns grant determinations into a lottery.

10

Without any express statutory authority allowing them to use COPS grants to

11 promote their preferred state and local laws and policies concerning federal civil

12 immigration enforcement, Defendants invert separation of powers principles. They insist

13 that they must have authority to use the federal grant program to induce state and local

14 policy changes, because “nothing in the governing statutes or case law prohibits DOJ

15 from” doing so. Defs.’ Br. 19 (emphasis added). That is backwards: it is fundamental

16 that courts will not “presume a delegation of power absent an express withholding of

17 such power,” or else “agencies would enjoy virtually limitless hegemony.” Ry. Labor

18 Execs. Ass’n v. Nat’l Mediation Bd., 29 F.3d 655, 671 (D.C. Cir. 1994) (en banc) (as

19 amended).

20

Even more brazenly, Defendants distort the Supreme Court’s seminal Spending

21 Clause decision in South Dakota v. Dole, 483 U.S. 203 (1987), describing it as follows:

22 “the Supreme Court has made clear that a federal agency can use grant conditions as a

23 ‘relatively mild encouragement’ for States and localities to change their laws and

24 policies.” Defs.’ Br. 19 (quoting Dole, 483 U.S. at 211) (emphasis added). What Dole

25 actually says is that Congress can use federal grants to encourage states to change their

26 laws and policies. See Dole, 483 U.S. at 208 (addressing a “condition imposed by

27 Congress”). It is revealing that Defendants conflate the authority of Congress and that of

28 a federal agency.

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1

Indeed, the difference between what Congress may do and what an agency may do

2 is critical here, where federalism concerns are paramount. When federalism is at stake,

3 Congress—not an agency—must supply a clear statement of its intentions to encroach on

4 traditional state and local prerogatives. See Gregory v. Ashcroft, 501 U.S. 452, 461

5 (1991). The en banc Fourth Circuit held that the Gregory “clear statement rule” applies

6 when an agency attempts to use the terms of a grant to pressure states and localities to

7 change their laws and policies. See Com. Va., Dep’t of Educ. v. Riley, 106 F.3d 559, 566-

8 67 (4th Cir. 1997) (en banc) (adopting the dissenting panel opinion of Luttig, J.),

9 superseded by statute; Pl.’s Br. 14. Although Defendants assert that Gregory “does not

10 apply” in such circumstances, Defs.’ Br. 19, they do not mention the en banc court of

11 appeals decision that disagrees with their view. Congress itself provided a clear

12 statement to authorize DOJ to give preference to applicants based on their state and local

13 laws against human trafficking, see 34 U.S.C. § 10381(c)(2), (3); there is no such clear

14 statement authorizing DOJ to do the same with respect to civil immigration enforcement.

15

The broader statutory scheme makes it even clearer that Congress did not intend

16 for DOJ to use COPS funds to extract unrelated policy concessions from states and

17 localities related to their state and local law enforcement operations. Section 10228

18 prohibits federal agencies from “exercis[ing] any direction, supervision, or control over

19 any police force or any other criminal justice agency of any State or any political

20 subdivision thereof.” See Pl.’s Br. 14-15 (emphasis added). Congress enacted section

21 10228 to prevent exactly what DOJ seeks to do here—exercise “control over . . . ‘vital

22 matters pertaining to the day-to-day operations of local law enforcement.’” Ely v. Velde,

23 451 F.2d 1130, 1136 (4th Cir. 1971) (quoting S. Rep. No. 90-1097 at 222 (1968))

24 (discussing 42 U.S.C. § 3766(a), an earlier version of section 10228(a)). Congress was

25 not just worried about literal mandates, but the use of “federal assistance to state and

26 local law enforcement” as a “vehicle for the imposition of federal guidelines” on such

27 agencies. S. Rep. No. 90-1097, 1968 U.S.C.C.A.N. 2112, 2276 (1968) (views of

28 Senators Dirksen, Hruska, Scott, and Thurmond). And the Department of Justice,

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1 supporting an earlier proposed version of section 10228(a), agreed that it would violate

2 both “the mandate and spirit” of the provision to withhold funds because police

3 departments were not run “the way the Attorney General says they must” be run.4

4

Defendants brush the text and purpose of section 10228(a) aside by claiming that

5 they are only “encouraging cooperation with federal authorities,” Defs.’ Br. 18, but this

6 “cooperation” is functionally a direction for how local law enforcement ought to

7 function. Specifically, DOJ uses its control over valuable federal funds to “encourage”

8 state and local governments to certify that they have specific laws or policies in place

9 governing who may enter their detention facilities and what their state and local law

10 enforcement personnel must do. See Pl.’s Br. 7. If Defendants mean to suggest that this

11 is not “direction, supervision, or control” because DOJ is only pressuring, not mandating,

12 states and localities to make these certifications, that is entirely at odds with the

13 congressional purpose of preventing federal grants from being a vehicle to change state

14 and local law enforcement operations. It also would make section 10228 the second

15 statutory provision Defendants would make a nullity, doing nothing but reiterating the

16 Tenth Amendment anti-commandeering rule.5

17

“If Congress has not unequivocally conditioned receipt of federal funds in the

18 manner claimed by the [agency], . . . then [the] inquiry is at an end.” Riley, 106 F.3d at

19 566. Here, not only is there no such clear statement, but every indication on the face of

20

21

22

4 Controlling Crime Through More Effective Law Enforcement: Hearings Before the Subcomm. on Criminal Laws and Procedure of the S. Comm. on the Judiciary, 90th

23 Cong. at 100, 384, 497 (1967).

24 5 Defendants stray even further afield with a reference to 34 U.S.C. § 10122(c)(2)(F),

25

which they claim reflects an interest in promoting “cooperation among the Federal Government, States, and units of local government.” Defs.’ Br. 18 (quoting a portion of

26 § 10122(c)(2)(F)). Defendants neglect to quote the text that immediately follows, which

27

makes clear that the statute is concerned with promoting cooperation to address “whitecollar crime and public corruption.” 34 U.S.C. § 10122(c)(2)(F). That statute could not

28 have less relevance here.

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1 the statute points in the opposite direction. Congress did not intend to authorize DOJ to

2 disfavor COPS grant applicants if they were not willing to adopt unrelated laws or

3 policies. DOJ’s preferential treatment for COPS applicants that are willing to certify to

4 their immigration “partnership” is therefore unlawful.

5

2. DOJ Cannot Divert Funds That Congress Designated For

6

Community Policing To Federal Civil Immigration Enforcement.

7

DOJ is also awarding “bonus points” to applicants who promise to focus their use

8 of grant funds on “Illegal Immigration” by “propos[ing] ways to contribute to combatting

9 illegal immigration,” Defs.’ Br. 1. Congress, however, authorized DOJ to provide funds

10 to states and localities under the COPS program for the hiring, or rehiring, of state and

11 local law enforcement officers for “deployment in community-oriented policing.” 34

12 U.S.C. § 10381(b)(1), (2). Nowhere in their brief do Defendants explain how Congress’s

13 objective of funding the hiring of state and local officers to engage in “community-

14 oriented policing” has anything to do with such officers partnering with federal officials

15 to enforce federal civil immigration law. That is a tacit admission by Defendants that

16 they are acting ultra vires.

17

DOJ’s attempt to funnel COPS funds to an area that is “unquestionably exclusively

18 a federal power,” DeCanas v. Bica, 424 U.S. 351, 354 (1976), does not advance

19 “community-oriented policing.” Community policing, the COPS Office itself explains,

20 “begins with a commitment to building trust and mutual respect between police and

21 communities.” RJN Ex. A, “About.” The types of activities funded through the “Illegal

22 Immigration” focus area do not involve the local community at all; they require

23 partnership between local law enforcement and federal immigration authorities. See RJN

24 Ex. F, DOJ FY 2018 COPS Office Congressional Justification at 31 (characterizing the

25 “Illegal Immigration” focus area as “[p]artnering with federal law enforcement”); Defs.’

26 Br. 18 (observing that, apart from a formal agreement with the federal government, state

27 and local officers can assist in federal immigration enforcement by “providing [federal

28 authorities] access to aliens they have detained or informing federal authorities of the

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1 impending release of such persons”). Congress was not seeking to “build[] trust”

2 between local police and federal immigration officials; its intent, as DOJ recognizes

3 outside the context of this litigation, was to improve relationships between local police

4 and the communities they serve.

5

The closest Defendants come to a defense of this scoring factor is to insist that “the

6 intersection of illegal immigration and crime is a serious public safety issue that can

7 helpfully be addressed through ‘cooperative efforts’ among federal, state, and local law

8 enforcement.” Defs.’ Br. 23. This premise is unsupported, but it is also irrelevant: the

9 fact that something is a “public safety issue” does not mean it is a “community-oriented

10 policing issue.” All policing has to do with public safety, but Congress did not authorize

11 COPS funds to hire officers for “deployment in policing” generally.

12

Defendants also twist the words of the statute to suggest that Congress intended to

13 promote cooperation between federal and local law enforcement. Defs.’ Br. 23 (citing

14 Pub. L. No. 103-322). The “cooperation” Congress intended to promote is quite clearly

15 “cooperative efforts between law enforcement agencies and members of the community.”

16 Pub. L. No. 103-322 (emphasis added). Cooperation among federal, state, and local law

17 enforcement is not cooperation “between law enforcement agencies and members of the

18 community.”

19

In fact, the types of “cooperation” that DOJ encourages would likely damage the

20 cooperation between local law enforcement and the community that Congress intended to

21 support. Through the COPS grant, DOJ has offered to sponsor 287(g) partnerships, in

22 which state and local law enforcement officers act as federal immigration officers. See 8

23 U.S.C. § 1357(g). As Los Angeles explained, and Defendants do not dispute, local law

24 enforcement officers “[c]arrying out civil immigration raids in support of federal

25 enforcement efforts bears no logical connection” to community policing. Pl.’s Br. 17.

26 DOJ’s preference for applicants that will use grant funds to honor federal detainer

27 requests for certain immigrants, see Dorr Decl. ¶ 24, is likewise unrelated to community

28 policing. In fact, this practice has led to municipality liability due to Fourth Amendment

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1 violations—hardly the type of police-community relationship that Congress intended.

2 See Pl.’s Br. 17 (collecting cases).

3

DOJ’s interpretation of its authority disregards not only the COPS statute, but also

4 federal immigration law. As Los Angeles previously explained, Pl.’s Br. 18, DOJ’s

5 funding of local officers to serve as federal immigration officers in 287(g) partnerships

6 violates Congress’s directive that such partnerships be undertaken “at the expense of the

7 State or political subdivision.” 8 U.S.C. § 1357(g)(1). Defendants’ sole response is that

8 “any funds awarded under a CHP grant would have to be used to hire or rehire officers

9 pursuant to the requirements of the Program, not for any state or local expenses of a

10 287(g) agreement.” Defs.’ Br. 18 n.8. But they do not deny that DOJ will be funding the

11 hiring of state and local officers to engage in immigration enforcement under 287(g)

12 agreements. And the Department of Homeland Security has made clear that “expenses”

13 under such an agreement include the “salaries” of personnel.6 Thus, it is clear that DOJ is

14 using COPS funds to pay the salaries of state and local officers in 287(g) partnerships,

15 and in doing so, violating Congress’s prohibition against federal funding of those

16 partnerships.

17

By favoring applicants that adopt “Illegal Immigration” as a focus area, DOJ is

18 acting without statutory authority, diverting COPS funds from their authorized statutory

19 purpose, and punishing applicants that seek COPS funds for programs that are actually

20 related to community-oriented policing.

21

3. The Choice Before The Court Is Not Unfettered Agency Power Or

22

Grant Awards Chosen By Lottery.

23

Unable to explain how Congress authorized the immigration-related factors that

24 DOJ has made the centerpiece of the COPS program, Defendants resort to hyperbole. In

25

26

27 6 See Memorandum of Understanding, available at https://www.ice.gov/doclib/detention28 reform/pdf/287g_moa.pdf (emphasis added).

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1 their telling, if DOJ lacks the expansive authority they claim, COPS awards would have

2 to be allocated randomly. See Defs.’ Br. 15. That is nonsense.

3

It is of course permissible for DOJ to consider a community’s crime-fighting needs

4 in determining which applicants should receive funds to hire officers to engage in

5 community-oriented policing. Congress specifically required COPS applicants to

6 “demonstrate a specific public safety need” related to community policing, 34 U.S.C.

7 § 10382(c)(2); see also id. § 10382(c)(10) (applicant must “explain how the grant will be

8 utilized to reorient the affected law enforcement agency’s mission toward community-

9 oriented policing or enhance its involvement in or commitment to community-oriented

10 policing”). This necessarily means Congress expected DOJ to consider those public

11 safety needs. And having been delegated authority to evaluate applications in part on the

12 basis of public safety needs, DOJ can reasonably “prioritiz[e] different areas of public

13 safety from year to year,” so long as they can be addressed by community policing.

14 Defs.’ Br. 16. Likewise, since Congress provided DOJ the authority to issue grants for

15 use in community-oriented policing, and required applicants to explain how any grant

16 funds they receive will do so, see 34 U.S.C. § 10382(c)(10), the agency can plainly make

17 discretionary judgments about which grant proposals best serve that purpose. These

18 factors alone leave DOJ with substantial discretion; the fact that this discretion is not

19 limitless does not mean that the agency must conduct a lottery.

20

Defendants also note various considerations DOJ has used in the past to award

21 bonus points, asserting that every one of them would fail under the City’s approach.

22 Those considerations are not before the Court and there is no need for the Court to opine

23 on them; if an applicant is aggrieved by a particular scoring factor and believes it is

24 unlawful, that applicant is free to bring its own challenge. But the past considerations

25 DOJ has identified are consistent with the COPS authorizing statute—unlike its novel

26 immigration-related considerations.

27

For example, Defendants suggest that if the City prevails, DOJ could not award

28 additional consideration to jurisdictions “that have recently experienced a catastrophic

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1 event.” Defs.’ Br. 16. But as Defendants’ own declarant explains, the purpose of this

2 consideration is to favor applicants that have experienced “tragedies or disasters

3 impacting law enforcement.” Dorr Decl. ¶ 18 (emphasis added). It is consistent with the

4 statutory text and intent of Congress for DOJ to consider an event that negatively impacts

5 law enforcement resources for community policing as part of the applicant’s public safety

6 need and its “inability to address the need without Federal assistance,” 34 U.S.C.

7 § 10382(c)(3). Jurisdictions suffering from a catastrophic event can be expected to divert

8 resources to respond to the tragedy and away from community policing, so ensuring that

9 COPS funds are available to help make up the difference is eminently reasonable. Other

10 considerations Defendants note—for flexibility in shift assignments and an “early

11 intervention system” for officers showing signs of stress, see Defs.’ Br. 19—have

12 everything to do with the statutory purpose of hiring officers for community-oriented

13 policing. Indeed, the consequences to police-community relations of not timely

14 identifying officers under stress are all too real.7

15

Even if, for the sake of argument, DOJ had pushed the boundaries of its delegated

16 authority in the past, there is no risk that a ruling for Los Angeles would broadly

17 undermine the way DOJ has historically administered the COPS program. DOJ’s

18 immigration-related considerations, which have no mooring in the statutory purpose of

19 the grant and are contradicted by the direction Congress provided, are a new and

20 unlawful invention by the Attorney General.

21

22

23

7 Defendants also observe that DOJ gave additional consideration for the hiring of military veterans before Congress authorized the agency to “prioritiz[e] the hiring and

24 training of veterans,” 34 U.S.C. § 10381(b)(2). Defs.’ Br. 7. This consideration had to

25

do with the hiring of officers, which is at the core of the statutory grant authorization. Moreover, if any inference is to be drawn from Congress’s codification of this factor, it is

26 that Congress was concerned that DOJ did not have sufficient authorization for it without

27

a more specific enactment. Cf. Schism v. United States, 316 F.3d 1259, 1289 (Fed. Cir. 2002) (noting that Congress may act to ratify action that was “unauthorized when taken”

28 (emphasis added)).

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1

B. The Challenged Considerations Violate The Spending Clause Because

2

Defendants Cannot Identify Any Reasonable Relationship They Bear To

The Community Policing Purpose Of The COPS Program.

3

A state’s or locality’s willingness to certify compliance with the Notice and Access

4 requirements, or to use COPS funds to participate in civil immigration enforcement,

5 made a significant difference in the applicant’s ability to compete for federal funds. See 6 Dorr Decl. ¶ 35. In fact, in some cases, these were the dispositive factors in whether a

7 jurisdiction received a grant. Id.; see also id. (stating that 19 out of 30 successful large 8 jurisdictions and 124 out of 149 successful small jurisdictions complied with the Notice

9 and Access requirements). When DOJ announced the 2017 awards, it even boasted about

10 how effective these inducements were. RJN Ex. H, Nov. Press Release. The Challenged

11 Considerations thus operate as terms or conditions on the receipt of COPS funds, and so

12 must comply with constitutional restrictions on funding conditions.

13

The Supreme Court has clearly established that congressional conditions on the

14 receipt of federal funds “must . . . bear some relationship to the purpose of the federal

15 spending.” New York v. United States, 505 U.S. 144, 167 (1992). As discussed above, 16 Congress did not delegate DOJ authority to impose conditions related to immigration

17 enforcement on COPS grants. But even if DOJ had authority to use the Challenged

18 Considerations, they violate the Spending Clause’s requirement that conditions be

19 “reasonably related” to the purposes of the grant program, Nevada v. Skinner, 884 F.2d 20 445, 447 (9th Cir. 1989), because enforcement of federal civil immigration laws is

21 unrelated to the COPS grant’s purpose of promoting community-oriented policing.

22 Defendants offer no serious argument to the contrary.

23

Community-oriented policing, in DOJ’s own words, entails “developing

24 partnerships between law enforcement agencies and the communities they serve.” RJN 25 Ex. F, DOJ FY 2018 COPS Office Congressional Justification at 4 (emphasis added); see 26 also RJN Ex. A, “About,” (“Community policing begins with a commitment to building 27 trust and mutual respect between police and communities.”). It is not, as DOJ contends

28

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1 for the first time here, about developing partnerships between state and local law

2 enforcement and the federal government. Defs.’ Br. 23. DOJ attempts to argue that

3 enforcement of federal civil immigration law is reasonably related to state and local law

4 enforcement by asserting that enforcement of federal immigration law “makes

5 communities safer.” Id. This argument is itself unsupportable, see Philadelphia v.

6 Sessions, 2017 WL 5489476 at *48 (E.D. Pa. Nov. 15, 2017) (“Immigration law has

7 nothing to do with the enforcement of local criminal laws.”), appeal filed (3d Cir. Jan. 18,

8 2018), but more importantly, DOJ makes no argument as to how mandating state and

9 local enforcement of federal immigration law is related to community policing. DOJ’s

10 only way to show that its considerations relate to the statutory purpose is to read the

11 words “community-oriented” out of the statute, and treat the purpose of the grant as

12 anything related to “policing.” See supra II.A.2. But federal agencies are bound by the

13 statutes that Congress enacts. Because the Challenged Considerations have no

14 relationship to “community-oriented policing,” they cannot pass muster under the

15 Spending Clause.

16

The unrelated provisions of the Immigration and Nationality Act which DOJ cites

17 as evidence of congressional intent to involve states and localities in enforcement of

18 federal civil immigration laws, Defs.’ Br. 23, provide no better support for their

19 contention that federal civil immigration enforcement is related to community policing.

20 Rather, they show that when Congress intended to include state and local governments in

21 federal immigration enforcement, it authorized such participation explicitly—belying the

22 contention that immigration enforcement should be generally considered related to state

23 and local policing. Because the Challenged Considerations are unrelated to—and if

24 anything may actively undermine—the goals of community policing, they violate the

25 relatedness prong of the Spending Clause.

26

C. The Challenged Considerations Are Arbitrary And Capricious.

27

DOJ’s adoption of the Challenged Considerations was arbitrary and capricious in

28 violation of the APA, 5 U.S.C. § 706(2)(A), because the agency failed to

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1 contemporaneously articulate a “reasonable basis . . . for the decision.” Alaska Oil &

2 Gas Ass’n v. Jewell, 815 F.3d 544, 554 (9th Cir. 2016).

3

Even if it were possible for conditions requiring state and local enforcement of

4 federal civil immigration laws to be related to community policing, DOJ at no point

5 explains how the Challenged Considerations are related to the goals of the COPS statute

6 as enacted by Congress. It thus entirely failed to “articulate[] a rational connection

7 between the facts found and the choice made.” Az. Cattle Growers’ Ass’n v. U.S. Fish & 8 Wildlife, Bureau of Land Mgmt., 273 F.3d 1229, 1236 (9th Cir. 2001). In its brief, 9 Defendants do not point to any instance on the record in which DOJ or Attorney General

10 Sessions explained the connection between the immigration factors and community

11 policing, instead stating that, “[n]othing in the statutes governing CHP suggests DOJ

12 should not consider the extent to which a jurisdiction cooperates in the enforcement of 13 immigration law . . . .” Defs.’ Br. 24-25 (emphasis added). As the City argues above, the

14 immigration conditions are in fact inconsistent with the COPS statute. But even if they

15 were not, the APA demands more than that agency action not be clearly inconsistent with

16 the text of a statute; it requires that the agency contemporaneously explain the basis for

17 its decisions. See Pacific Coast Fed’n of Fishermen’s Ass’ns v. U.S. Bureau of 18 Reclamation, 426 F.3d 1082, 1091 (9th Cir. 2005) (“It is a basic principle of 19 administrative law that the agency must articulate the reason or reasons for its

20 decision.”). DOJ failed to do so, and Defendants’ brief does not argue otherwise.

21

DOJ also misunderstands the City’s reliance on studies showing either no

22 relationship, or an inverse relationship between so-called “sanctuary” policies and violent

23 crime. See Pl.’s Br. 22. The point is not that the City has identified studies supporting a 24 “difference in view” from DOJ. Defs.’ Br. 25. It is that the Attorney General identified 25 these studies as supporting his actions, but misread them—according to their authors. 26 See Pl.’s Br. 22. (citing ECF 49-3, Ex. C). When an agency acts on the basis of evidence 27 that means the opposite of what it says, that is arbitrary and capricious. Cf. Defenders of 28 Wildlife v. Jewell, 176 F. Supp. 3d 975, 1004 (D. Mont. 2016) (holding that an agency

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1 decision relying on “an implausible misinterpretation [of a study] that runs counter to

2 [its] intent” was “arbitrary and capricious”). Los Angeles is not challenging a policy

3 disagreement, but an agency decision that is not supported by the very evidence it cites,

4 and so lacks a rational basis.

5 III. An Injunction Barring Defendants From Using The Invalid Considerations Is

6

Appropriate.

7

This Court may issue what Defendants term a “nationwide” injunction, meaning an

8 injunction that prevents Defendants from continuing to act unlawfully with respect to

9 everyone but the Plaintiff here. See, e.g., Califano v. Yamasaki, 442 U.S. 682, 702

10 (1979) (“nationwide” injunction appropriate where “necessary to provide complete relief

11 to the plaintiffs”). Indeed, both the Ninth and Fifth Circuits recently affirmed a broad

12 injunction against an Executive Branch action in all its applications, including as to

13 affected individuals not party to the case. Washington v. Trump, 847 F.3d 1151, 1166-67

14 (9th Cir. 2017); see also Texas v. United States, 809 F.3d 134 (5th Cir. 2015), aff’d by an

15 equally divided court, 136 S. Ct. 2271 (2016) (affirming a broad injunction against a

16 federal immigration policy in all its applications and not limited to the plaintiffs before

17 the court). An injunction that prevents DOJ from applying its unlawful policy is

18 particularly necessary here because DOJ’s preferential treatment of COPS applicants who

19 adopt DOJ’s preferred immigration policies over those, like Los Angeles, who do not, is

20 invalid on its face. See, e.g., Decker v. O’Donnell, 661 F.2d 598, 617-18 (7th Cir. 1980)

21 (affirming nationwide injunction in case of facial challenge to legality of agency

22 regulation); Santa Clara v. Trump, 2017 WL 5569835, at *17 (N.D. Cal. Nov. 20, 2017),

23 appeal filed (9th Cir. Dec. 14, 2017).

24

Defendants suggest in one sentence in a footnote that “any injunction should be

25 limited to the plaintiff rather than applying to all CHP applicants.” Defs.’ Br. 11 n.4.

26 Apart from the absence of any actual argument supporting their position, Defendants fail

27 to explain how an injunction could be tailored only to Los Angeles when the issue is

28 DOJ’s preferential treatment of other applicants. See Washington, 847 F.3d at 1167

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1 (nationwide relief appropriate where government had not proposed a workable alternative

2 form that would remedy the violation). The City is not injured because it loses points

3 itself, but because its competitors are unlawfully given extra points. Los Angeles’

4 request for an even playing field for COPS applicants necessarily requires across-the-

5 board relief. Cf. Easyriders Freedom F.I.G.H.T. v. Hannigan, 92 F.3d 1486, 1501-02

6 (9th Cir. 1996) (“[A]n injunction is not necessarily made overbroad by extending benefit

7 or protection to persons other than prevailing parties in the lawsuit—even if it is not a

8 class action—if such breadth is necessary to give prevailing parties the relief to which

9 they are entitled.” (citation and emphasis omitted)); Bresgal v. Brock, 843 F.2d 1163,

10 1171 (9th Cir. 1987) (affirming nationwide relief where “the district court could hardly

11 require enforcement of the [statute] on anything other than a nationwide basis”).

12 Accordingly, this Court should issue an injunction prohibiting DOJ from using the

13 Challenged Considerations in making COPS grant determinations in future grant cycles.

14

CONCLUSION

15

For the foregoing reasons, the Court should grant partial summary judgment to the

16 City of Los Angeles as to each of its claims concerning the COPS grant program (Counts

17 Four, Five, and Six), deny Defendants’ motion for partial summary judgment, and enter

18 final judgment pursuant to Rule 54(b) on those claims. The Court should declare that the

19 Challenged Considerations are (1) ultra vires and a violation of the Separation of Powers,

20 (2) in violation of the Spending Clause, and (3) an arbitrary and capricious agency action

21 in violation of the APA. The Court should further enjoin Defendants from using the

22 Challenged Considerations in making COPS grant determinations in future grant cycles.

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CITY OF LOS ANGELES’ REPLY IN SUPPORT OF MOTION FOR PARTIAL SUMMARY JUDGMENT AND OPPOSITION TO DEFENDANTS’ MOTION FOR PARTIAL SUMMARY JUDGMENT

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CERTIFICATE OF SERVICE

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I hereby certify that on this 29th day of January, 2018, the within document and its

3 attachments were electronically filed with the Clerk of the Court using the CM/ECF

4 system and will be sent electronically to the registered participants as identified on the

5 Notice of Electronic Filing (NEF), pursuant to Local Rule 5-3.2.

6

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/s/ Mitchell A. Kamin

8

Mitchell A. Kamin

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 </s> Case 2:17-cv-07215-R-JC Document 69 Filed 02/08/18 Page 1 of 23 Page ID #:2238

1 CHAD A. READLER
2 Acting Assistant Attorney General NICOLA T. HANNA
3 United States Attorney
4 JOHN R. TYLER Assistant Director
5 W. SCOTT SIMPSON (Va. Bar #27487)
6 Senior Trial Counsel Department of Justice, Room 7210
7 Civil Division, Federal Programs Branch
8 20 Massachusetts Avenue, NW Washington, D.C. 20530
9 Telephone: (202) 514-3495
10 Facsimile: (202) 616-8470 E-mail: scott.simpson@usdoj.gov
11
12 COUNSEL FOR DEFENDANTS

13

14 UNITED STATES DISTRICT COURT
15

16

FOR THE CENTRAL DISTRICT OF CALIFORNIA

17 CITY OF LOS ANGELES,

Case No. 2:17-cv-07215-R-JCx

18

Plaintiff,

REPLY IN SUPPORT OF DEFEN-

19

v.

DANTS’ MOTION FOR PARTIAL

20

SUMMARY JUDGMENT

JEFFERSON B. SESSIONS, III, et al.,

21

Date:

February 20, 2018

22

Defendants.

Time: 10:00 a.m.

23

24

25

26

27

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Case 2:17-cv-07215-R-JC Document 69 Filed 02/08/18 Page 2 of 23 Page ID #:2239

1

TABLE OF CONTENTS

2

3 TABLE OF AUTHORITIES.....................................................................................ii
4 INTRODUCTION ..................................................................................................... 1
5
6 ARGUMENT............................................................................................................. 2

7

I. All of Plaintiff’s Claims Must Be Dismissed as Non-Justiciable......... 2

8

A. Plaintiff’s Claims Are Moot in Relation to

9

the FY 2017 Factors.................................................................... 3

10

B. Plaintiff Lacks Standing in Relation to Future

11

Scoring Factors ........................................................................... 5

12

II. Alternatively, the Court Should Enter Judgment for the

13

Defendants on the Merits ...................................................................... 6

14

A. “Community-Oriented Policing” Permeates All Aspects

15

of Law Enforcement and Public Safety...................................... 6

16

B. The Immigration-Related Factors Are Consistent

17

with the Governing Statutes ....................................................... 9

18

C. The Immigration-Related Factors Are Consistent

19

with the Spending Clause ......................................................... 13

20

D. The Challenged Factors Are Consistent with the

21

Administrative Procedure Act .................................................. 15

22 III. Any Injunction Herein Should Be Limited to the Plaintiff................. 16
23

24 CONCLUSION........................................................................................................ 18

25

26

27

28

Case 2:17-cv-07215-R-JC Document 69 Filed 02/08/18 Page 3 of 23 Page ID #:2240

1

TABLE OF AUTHORITIES

2

3 CASES
4 Arizona v. United States, 567 U.S. 387 (2012) ........................................................ 12
5
6 Barnhart v. Peabody Coal Co., 537 U.S. 149 (2003) .............................................. 11

7 Bullfrog Films, Inc. v. Wick, 847 F.2d 502 (9th Cir. 1988)........................................6
8 City of Los Angeles v. Lyons, 461 U.S. 95 (1983)......................................................5
9
10 FCC v. Fox Television Stations, Inc., 556 U.S. 502 (2009) ..................................... 16

11 Gregory v. Ashcroft, 501 U.S. 452 (1991) ...................................................10, 12, 13
12 Indep. Acceptance Co. v. California, 204 F.3d 1247 (9th Cir. 2000) ...................... 15
13
14 J & J Sports Prods., Inc. v. Dean, No. 10-05088 CW, 2011 WL 4080052 (N.D. Cal. Sept. 12, 2011) ..................................................... 16
15
16 Los Angeles Haven Hospice, Inc. v. Sebelius, 638 F.3d 644 (9th Cir. 2011).......................................................................................................17
17 18 Mayweathers v. Newland, 314 F.3d 1062 (9th Cir. 2002) ................................. 13, 14

19 Nelsen v. King Cty., 895 F.2d 1248 (9th Cir. 1990) ................................................... 4

20 Price v. City of Stockton, 390 F.3d 1105 (9th Cir. 2004) ..................................... 2, 16
21
22 S. Dakota v. Dole, 483 U.S. 203 (1987) ................................................................... 13

23 Sanford v. MemberWorks, Inc., 625 F.3d 550 (9th Cir. 2010)...................................4

24 Skydive Arizona, Inc. v. Quattrocchi, 673 F.3d 1105 (9th Cir. 2012)......................17
25
26 Steel Co. v. Citizens for a Better Env’t, 523 U.S. 83 (1998) .................................... 16

27 Taylor v. Westly, 488 F.3d 1197 (9th Cir. 2007) ........................................................ 5

28 Texas v. United States, 809 F.3d 134 (5th Cir. 2015) .............................................. 18

ii

Case 2:17-cv-07215-R-JC Document 69 Filed 02/08/18 Page 4 of 23 Page ID #:2241
1 2 U.S. Parole Comm’n v. Geraghty, 445 U.S. 388 (1980)............................................4
3 United States v. AMC Entm’t, Inc., 549 F.3d 760 (9th Cir. 2008) ........................... 17 4
United States v. Mendoza, 464 U.S. 154 (1984) ...................................................... 17 5 6 Virginia Department of Education v. Riley, 106 F.3d 559 (4th Cir. 1997)..............13
7 Whitmore v. Arkansas, 495 U.S. 149 (1990) .............................................................. 5 8
Wickenkamp v. Baum, No. 2:15-CV-00483-PK, 2015 WL 5686746 9 (D. Or. Sept. 22, 2015)..........................................................................................16 10
Zepeda v. INS, 753 F.2d 719 (9th Cir. 1983) ........................................................... 16 11
12 STATUTES
13 14 8 U.S.C. § 1231(a)(1)(B)(iii) .................................................................................... 14
15 8 U.S.C. § 1231(a)(4)(A) .......................................................................................... 14 16
34 U.S.C. § 10381(b)(1) ............................................................................................. 6 17
34 U.S.C. § 10381(b)(2) ............................................................................................. 6 18 19 34 U.S.C. § 10381(c)(2) ........................................................................................... 11
20 34 U.S.C. § 10381(c)(3) ........................................................................................... 11 21
34 U.S.C. § 10382(c)(2) ........................................................................................... 10 22 23 Pub. L. No. 103-322, 108 Stat. 1808 (1994) ............................................................ 14
24 25 LEGISLATIVE HISTORY 26 H.R. Rep. No. 103-324 (1993) .............................................................................. 7 14
27
28
iii

Case 2:17-cv-07215-R-JC Document 69 Filed 02/08/18 Page 5 of 23 Page ID #:2242

1

INTRODUCTION

2

Los Angeles seeks funds under a highly competitive, discretionary grant

3 program, but argues that the Department of Justice (“USDOJ”) is forbidden from

4 exercising its discretion to consider the extent to which the City cooperates with

5 federal law and federal enforcement prerogatives. In Fiscal Year 2017, USDOJ’s

6 Office of Community Oriented Policing Services (“COPS Office”) considered,

7 among many other scoring factors, whether applicants in the COPS Hiring Program

8 (“CHP” or “Program”) had either chosen to focus on Illegal Immigration during the

9 grant period or had committed to give federal immigration authorities access to

10 aliens in the applicant’s custody and to notify federal authorities before the

11 scheduled release of an alien.

12

Aside from the merits, Los Angeles’s challenge to the FY 2017 factors is

13 moot because those factors had no effect on the City’s non-receipt of a CHP grant

14 for FY 2017. Despite plaintiff’s protestations, defendants’ earlier misstatement

15 regarding the effect of the factors on other applicants had no bearing on this

16 plaintiff or on this plaintiff’s withdrawal of its request for a preliminary injunction.

17 And Los Angeles lacks standing to challenge whatever immigration-related factors

18 might be used in the FY 2018 grant season because those factors are not yet known

19 and Los Angeles has no reasonable expectation that they will affect the City.

20

On the merits, Los Angeles misunderstands the meaning of “community-

21 oriented policing” under the COPS Hiring Program. The COPS Office’s programs

22 are not simply a matter of “police-community relations,” as the City claims; they

23 embody, rather, an entire “philosophy” of law enforcement that focuses on antici-

24 pating and preventing crime rather than merely responding to crimes after they

25 happen. The breadth of what community-oriented policing includes affects both

26 plaintiff’s ultra vires / Separation of Powers Claim and its Spending Clause claim.

27 Giving an applicant extra points in the CHP scoring process for cooperating with

28 immigration enforcement with respect to aliens who have committed crimes or are

Case 2:17-cv-07215-R-JC Document 69 Filed 02/08/18 Page 6 of 23 Page ID #:2243

1 suspected of committing crimes contributes to Congress’s overarching goal of

2 aiding local law enforcement in preventing crime. These scoring factors accord-

3 ingly fit well within the COPS Office’s statutory discretion, and are closely related

4 to the purposes of the COPS Hiring Program. The immigration-related law

5 enforcement factors are also eminently reasonable given the connections between

6 the criminal law and federal immigration law, thus defeating plaintiff’s claim under

7 the Administrative Procedure Act.

8

Finally, should the Court grant relief, any such relief should be limited to the

9 plaintiff before the Court. The City’s proposed order on its motion for summary

10 judgment would prohibit the COPS Office from relying on the challenged factors in

11 the COPS Hiring Program as a whole, nationwide (Doc. 49-6). But that does not

12 make sense, given that Los Angeles does not represent a class and does not need a

13 nationwide injunction to obtain complete relief. It is axiomatic that “an injunction

14 must be narrowly tailored to affect only those persons over which [the court] has

15 power, and to remedy only the specific harms shown by the plaintiffs, rather than to

16 enjoin all possible breaches of the law.” Price v. City of Stockton, 390 F.3d 1105,

17 1117 (9th Cir. 2004) (internal quotation marks omitted). Should the Court side

18 with the City, it should order the COPS Office to score Los Angeles’s future

19 applications (assuming there are such applications) as if the City has qualified for

20 any additional points attributable to immigration-related factors. Such an order

21 would make the plaintiff whole, while refraining from issuing relief to thousands of

22 jurisdictions that are not parties to this suit and have not sought any relief here.

23

Accordingly, judgment should be entered for the defendants on Counts Four,

24 Five, and Six of plaintiff’s Complaint.

25

ARGUMENT

26 I. All of Plaintiff’s Claims Must Be Dismissed as Non-Justiciable

27

Plaintiff challenges certain scoring factors used in awarding grants on an

28 annual basis. Therefore, although some of plaintiff’s arguments regarding justicia-

2

Case 2:17-cv-07215-R-JC Document 69 Filed 02/08/18 Page 7 of 23 Page ID #:2244

1 bility do not specify the time period to which they relate, the justiciability of plain-

2 tiff’s claims must be considered on an annual basis. To the extent plaintiff seeks

3 relief regarding the FY 2017 scoring factors, its claims are moot. To the extent

4 plaintiff seeks relief regarding the scoring factors for FY 2018 or later years, the

5 City lacks standing because its prophesied injury is too speculative.

6 A. Plaintiff’s Claims Are Moot In Relation

7

to the FY 2017 Factors

8

Regardless of whether Los Angeles originally had standing in relation to the

9 FY 2017 scoring factors when it filed this action (Doc. 57 at 4), any request for

10 relief regarding those factors became moot when the COPS Office determined,

11 during the pendency of this action, that Los Angeles would not have received a

12 Fiscal Year 2017 award even without regard to the immigration-related factors

13 challenged here. That circumstance – not the effect of the FY 2017 factors on any

14 other applicants – deprived Los Angeles of any cognizable interest in the FY 2017

15 factors. Plaintiff seems to have recognized as much in withdrawing its motion for

16 preliminary injunction.

17

In responding to the City’s motion, defendants stated that “Los Angeles

18 would not receive CHP funding this year even if all points related to illegal

19 immigration were excluded from the scoring” such that the City could not establish

20 standing or irreparable harm (Doc. 33 at 2). Four days after the filing of defen-

21 dants’ opposition, plaintiff’s counsel stated in an email that the City would be with-

22 drawing its motion for preliminary injunction “in light of the Government’s

23 statement in your Opposition (and the accompanying sworn declaration) that the

24 challenged considerations will not impact the fate of the City’s 2017 COPS grant

25 application.” See Declaration of W. Scott Simpson, Ex. A (Attachment 1 hereto).

26 The plaintiff then filed a formal notice stating that it was withdrawing the motion

27 because the COPS Office “had putatively determined that Los Angeles’ award

28 application was unaffected by the inclusion of immigration-related considerations”

3

Case 2:17-cv-07215-R-JC Document 69 Filed 02/08/18 Page 8 of 23 Page ID #:2245

1 (Doc. 37).

2

Defendants’ partial motion for summary judgment, filed later, stated that

3 defendants’ opposition had inadvertently misstated the effect of the immigration

4 related-factors on certain other applicants, but reiterated that Los Angeles’s FY

5 2017 application “was denied because it scored below those of other large-

6 population jurisdictions, even without regard to any immigration-related factors”

7 (Doc. 53 at 8, 10 & n.3). Los Angeles did not claim – and it would not have made

8 sense to claim – that it withdrew its motion for preliminary injunction because the

9 challenged scoring factors advantaged or disadvantaged some other CHP applicant.

10 Rather, the City’s stated reason for withdrawing its motion was that it would not

11 have received a 2017 CHP grant even if it obtained preliminary relief. That fact is

12 as true today as it was then. Plaintiff’s attempt to inflate this immaterial, honest

13 mistake by a declarant from the COPS Office’s career staff into a “material

14 misrepresentation” is thus belied by both commonsense and the City’s own prior

15 statements (Doc. 57 at 2).

16

Given that the challenged scoring factors had no effect on Los Angeles in FY

17 2017, the City’s claims are moot to the extent it seeks relief regarding those factors.

18 As the Ninth Circuit has explained, the “requisite personal interest that must exist at

19 the commencement of the litigation (standing) must continue throughout its exis-

20 tence (mootness)”). Sanford v. MemberWorks, Inc., 625 F.3d 550, 556 (9th Cir.

21 2010) (quoting U.S. Parole Comm’n v. Geraghty, 445 U.S. 388, 397 (1980)).

22 Under these circumstances, Los Angeles has no “interest” in the FY 2017 factors.1

23

24

1 Plaintiff seeks to rely on the “capable of repetition” doctrine, but that

exception to mootness cannot apply here because the FY 2017 grant season has

25 passed and cannot be “repeated.” Future grant seasons will involve different

26 factors, different considerations, and myriad different facts. And besides, that doctrine is an exception to mootness – not standing. See Nelsen v. King Cty., 895

27 F.2d 1248, 1254 (9th Cir. 1990) (“[T]he ‘capable of repetition but evading review’

28 doctrine is an exception only to the mootness doctrine; it is not transferable to the standing context.”).

4

Case 2:17-cv-07215-R-JC Document 69 Filed 02/08/18 Page 9 of 23 Page ID #:2246

1

2

B. Plaintiff Lacks Standing in Relation to Future

Scoring Factors

3 As for the future, Los Angeles cannot, for different reasons, have any

4 cognizable interest in whatever immigration-related factors will be used for future

5 grant years, including FY 2018. “To demonstrate standing to pursue prospective

6 injunctive relief, [the plaintiff] must demonstrate a concrete injury and a realistic

7 likelihood that the injury will be repeated.” Taylor v. Westly, 488 F.3d 1197, 1199

8 (9th Cir. 2007); see City of Los Angeles v. Lyons, 461 U.S. 95, 105, 109 (1983).

9 The injury must be “certainly impending” rather than “speculative.” See Whitmore

10 v. Arkansas, 495 U.S. 149, 157-58 (1990).

11 Plaintiff cannot show a “realistic likelihood” of future injury from the use of

12 immigration-related factors in the COPS Hiring Program. First, the COPS Office

13 has not yet determined the focus areas for FY 2018 or how immigration-related

14 factors will be handled in the FY 2018 application (nor, obviously, in future years).

15 See Declaration of Andrew A. Dorr ¶¶ 14, 18, 24, 29 (“Dorr Decl.”) (Doc. 53-1).

16 Plaintiff argues that the challenged factors are a “priority” for the Attorney General

17 (Doc. 57 at 6), but the City cannot derive standing from its assumptions about the

18 Attorney General’s priorities or the future of this specific program. Second, Los

19 Angeles has applied for grants under the COPS Hiring Program (or its predecessor)

20 in less than half the years it has existed – just nine times during the twenty-three

21 years these grants have been awarded. Id. ¶ 36. Plaintiff now claims that that it

22 “intends” to seek a CHP grant in the FY 2018 grant cycle (Doc. 57 at 6-7). But that

23 bare, self-serving assertion – conveyed only in response to defendants’ motion to

24 dismiss rather than in the Complaint – does not create a cognizable interest in

25 future, unknown scoring factors that may never materialize and, if they do, may

26 never actually affect the City, even if the City decides to apply, which history

27 suggests it very well may not.

28

5

Case 2:17-cv-07215-R-JC Document 69 Filed 02/08/18 Page 10 of 23 Page ID #:2247

1

Los Angeles also seeks to rely on “competitive harm” compared to other

2 jurisdictions in seeking CHP grants (id. at 3-4). But the cases on which plaintiff

3 relies on that subject relate primarily to commercial harm such as “competitive

4 disadvantage in the international marketplace,” see Bullfrog Films, Inc. v. Wick,

5 847 F.2d 502, 506 (9th Cir. 1988); they do not stand for the proposition that

6 “competitive disadvantage” in a grant program constitutes cognizable harm. In any

7 event, the immigration-related factors in the COPS Hiring Program create a disad-

8 vantage for a given applicant only if those factors actually have some effect on

9 whether the applicant receives an award. If a jurisdiction seeks an award and those

10 factors do, in fact, cause the COPS Office to deny the application, only then might

11 that jurisdiction have a cognizable interest in challenging them.

12 II. Alternatively, the Court Should Enter Judgment for

13

Defendants on the Merits

14 A. “Community-Oriented Policing” Permeates All Aspects

15

of Law Enforcement and Public Safety

16

By statute, CHP funds must be used to hire, rehire, or train officers “for

17 deployment in community-oriented policing.” 34 U.S.C. § 10381(b)(1), (2). Much

18 of City’s argument on the merits is based on a fundamental misunderstanding of

19 community-oriented policing. Specifically, the City understands this concept as

20 limited to improving “police-community relations” (Doc. 57 at 19). In other words,

21 Los Angeles believes the purpose of the COPS Hiring Program – and of the COPS

22 Office generally – is merely to help law enforcement agencies build better relation-

23 ships with the communities they serve. The City thus argues, for example, that

24 “[j]urisdictions suffering from a catastrophic event can [reasonably] be expected to

25 divert resources to respond to the tragedy and away from community policing” (id.

26 at 19, emphases added). Similarly, Los Angeles says, “the fact that something is a

27 ‘public safety issue’ does not mean it is a ‘community-oriented policing issue.’ All

28 policing has to do with public safety, but Congress did not authorize COPS funds to

6

Case 2:17-cv-07215-R-JC Document 69 Filed 02/08/18 Page 11 of 23 Page ID #:2248

1 hire officers for ‘deployment in policing’ generally” (id. at 16). This narrow

2 understanding of community-oriented policing infects plaintiff’s arguments on both

3 its ultra vires / Separation of Powers claim and its Spending Clause claim.

4

The truth is that community-oriented policing is not such a crabbed concept.

5 To the contrary, as Congress understood community-oriented policing and as the

6 COPS Office has long implemented that understanding, it is not simply about

7 building relationships but is, rather, a philosophy that should guide all aspects of a

8 law enforcement agency’s work. This is reflected, for example, in the legislative

9 history of the Violent Crime Control and Law Enforcement Act of 1994. In

10 explaining the need for community-oriented policing, the House Judiciary

11 Committee lamented that law enforcement officials were spending too much time

12 “simply responding to crimes after the fact” and not enough time “anticipat[ing]

13 and prevent[ing] crime by use of community-oriented, problem solving

14 techniques.” H.R. Rep. No. 103-324 at 8-9 (1993). Quoting the Deputy Attorney

15 General, the committee explained that the sort of “community policing” required to

16 make law enforcement preventive rather than reactive involves not merely

17 “community engagement” or “community relations,” but “tailoring solutions, based

18 on thoughtful, in-depth analysis, to unique neighborhood crime and disorder

19 problems.” Id. at 9. In short, community-oriented policing is “an organization-

20 wide philosophy.” Id. at 11.

21

The COPS Office’s materials and activities reflect Congress’s broad under-

22 standing of community policing. For example, as stated in the CHP Application

23 Guide for 2017, “[c]ommunity policing is a philosophy that promotes organiza-

24 tional strategies that support the systematic use of partnerships and problem-solving

25 techniques, to proactively address the immediate conditions that give rise to public

26 safety issues such as crime, social disorder, and fear of crime. Rather than simply

27 responding to crimes once they have been committed, community policing

28 concentrates on preventing crime and eliminating the atmosphere of fear it creates.”

7

Case 2:17-cv-07215-R-JC Document 69 Filed 02/08/18 Page 12 of 23 Page ID #:2249

1 See 2017 COPS Hiring Program (CHP) Application Guide at 91 (Doc. 49-4, Ex.

2 B). Although the Guide also discusses the importance of “[e]arning the trust of the

3 community,” that is just one aspect of community-oriented policing. Similarly,

4 several of the COPS Office’s recent budget proposals to Congress explain that the

5 Office’s “mission is to advance public safety through the practice of community

6 policing,” which “concentrates on preventing both crime and the atmosphere of fear

7 it creates” by “proactively addressing the root causes of criminal and disorderly

8 behavior, rather than simply responding to crimes once they have been committed.”

9 Defs.’ Req. Jud. Notice, Exs. A, B (Attachment 2 hereto); see id., Exs. C, D.2 The

10 breadth of community-oriented policing is reflected in the wide variety of areas on

11 which a CHP grant may focus – including everything from Violent Crime Problems

12 to Traffic/Pedestrian Safety Problems. Dorr Decl. ¶ 7. Whatever focus area an

13 applicant chooses, it must use the principles of community policing to address the

14 problems.

15

Indeed, plaintiff’s own police department agrees: “The Los Angeles Police

16 Department strongly embraces the philosophy of Community Policing in all its

17 daily operations and functions.” See Community Policing Unit, available at

18 http://www.lapdonline.org/support_lapd/content_basic_view/731 (last visited Feb.

19 8, 2018). As LAPD itself explains, “Community-Police Problem Solving uses the

20 ‘SARA’ approach (Scanning, Analysis, Response, and Assessment) to examine

21 characteristics of problems in the community and to develop appropriate strategies

22 to reduce these community-identified crime and disorder issues.” Id. More

23 specifically, the SARA approach to community-oriented policing involves

24 “[i]dentify[ing] and prioritiz[ing] problems”; “[r]esearch[ing] what is known about

25 the problem”; [d]evelop[ing] solutions to bring about lasting reductions in the

26

27

2 Given that these are initial budget proposals, the program details and

28 funding amounts contained in them do not necessarily reflect the final programs or funding amounts for the fiscal years in question.

8

Case 2:17-cv-07215-R-JC Document 69 Filed 02/08/18 Page 13 of 23 Page ID #:2250

1 number and extent of problems”; and [e]valuat[ing] the success of the responses.”

2 Pl.’s Req. Jud. Notice, Ex. F at 6 (Doc. 49-3).

3

Los Angeles is thus confused when it suggests that a jurisdiction might

4 sometimes have to “divert resources . . . away from community policing” to

5 respond to a “catastrophic event” (Doc. 57 at 19, emphasis added); rather, the

6 jurisdiction should use community-oriented policing strategies to inform and

7 improve its response to catastrophic events. Contrary to plaintiff’s arguments, all

8 “public safety issues” are and should be “community-oriented policing issues” (id.

9 at 16). CHP funds thus should be used to “hire officers for ‘deployment in

10 policing’ generally” within the areas described in each jurisdiction’s application –

11 all guided by the overarching philosophy of community-oriented policing (id.).

12 B. The Immigration-Related Factors Are Consistent

13

with the Governing Statutes

14

In light of the governing statutes, the COPS Office’s authority encompasses

15 the immigration-related factors that Los Angeles attacks. USDOJ is responsible for

16 disseminating the scarce funds appropriated under 34 U.S.C. § 10381(b)(1) and

17 (b)(2). The statute gives the COPS Office discretion in disseminating those funds,

18 and the inadequacy of the available funds to cover all applications requires the

19 Office to adopt and employ factors to rank and choose among them.

20

In attempting to establish that USDOJ lacks authority to use the scoring

21 factors challenged here, Los Angeles argues (1) that defendants are “diverting”

22 funds from community-oriented policing into immigration enforcement (Doc. 57 at

23 10, 15-17), (2) that the factors expressly described in the statute provide “ample

24 discretion” for the COPS Office to choose among applicants (id. at 10, 18), (3) that

25 Congress’s inclusion of 34 U.S.C. § 10381(c)(2)-(3), allowing the Office to give

26 preferential consideration to applicants from States with certain laws on human

27 trafficking, forecloses giving preferential consideration based on any other aspect of

28 an applicant’s laws, regulations, or policies (id. at 11-12); and (4) that the COPS

9

Case 2:17-cv-07215-R-JC Document 69 Filed 02/08/18 Page 14 of 23 Page ID #:2251

1 Office could use the challenged factors only if the statute included a “clear state-

2 ment” authorizing them pursuant to Gregory v. Ashcroft, 501 U.S. 452 (1991) (id.

3 at 13-14). All of these arguments are incorrect.

4

First, as shown above, community-oriented policing is not a discrete activity

5 that the COPS Hiring Program funds, but is rather a philosophy of law enforcement

6 that should imbue everything a grantee does. The defendants and LAPD agree that

7 “the philosophy of Community Policing [should guide a law enforcement agency]

8 in all its daily operations and functions” – a philosophy of “proactively addressing

9 the root causes of criminal and disorderly behavior, rather than simply responding

10 to crimes once they have been committed.” See Community Policing Unit,

11 available at http://www.lapdonline.org/support_lapd/content_basic_view/731 (last

12 visited Feb. 8, 2018); Defs.’ Req. Jud. Notice, Exs. A, B. Thus, giving a CHP

13 applicant extra points in the scoring process for cooperating in the enforcement of

14 federal immigration law in relation to persons who have committed crimes or are

15 suspected of committing crimes contributes to community-oriented policing rather

16 than “diverting” funds from it.

17

Second, USDOJ’s statutory responsibility to choose among applicants for

18 scarce CHP funds necessarily entails discretion to consider factors not explicit in

19 the statute. Plaintiff argues that the COPS Office’s discretion is limited to consider-

20 ing (1) the applicants’ “public safety needs,” (2) which areas of public safety each

21 applicant seeks to promote, and (3) how the applicants will employ community-

22 oriented policing (Doc. 57 at 18). But none of these considerations are explicit in

23 the statute either. The COPS statute does not expressly authorize USDOJ to

24 prioritize certain needs over others; it only requires each applicant to “demonstrate

25 a specific public safety need,” 34 U.S.C. § 10382(c)(2), leaving the COPS Office

26 without any express statutory authority to prioritize one “need” over another.

27 Accordingly, if USDOJ is entitled to “prioritiz[e] different areas of public safety

28 from year to year” – as Los Angeles concedes it is (Doc. 57 at 18) – there is no

10

Case 2:17-cv-07215-R-JC Document 69 Filed 02/08/18 Page 15 of 23 Page ID #:2252

1 reason why it cannot select Illegal Immigration as one of those priority areas.

2 Further, the statute says nothing about weighting the various factors differently

3 depending on whether each factor relates to Fiscal Health, Crime, or Community

4 Policing. Dorr Decl. ¶ 20. All of those factors, and others not expressly described

5 in the statute, are needed to allow the COPS Office to choose among the many

6 applications. Id. ¶¶ 12-22. And indeed, Los Angeles has never challenged the

7 COPS Office’s use of any of those factors until now.

8

Third, Congress’s permissive statement that the Office “may” consider

9 applicants’ laws regarding human trafficking, 34 U.S.C. § 10381(c)(2), (3), does

10 not foreclose the consideration of other factors not expressly set forth in the statute

11 or constitute a “superfluous” statutory statement (contra Doc. 57 at 11). The

12 enumeration of one potential discretionary factor should not be read to exclude

13 others “unless it is fair to suppose that Congress considered the unnamed possibility

14 and meant to say no to it.” Barnhart v. Peabody Coal Co., 537 U.S. 149, 168

15 (2003). Moreover, the COPS Office has used scoring factors not expressly set forth

16 in the statute since the Office’s creation in 1994, and Congress has continued to

17 authorize its programs with full knowledge of its practices. Dorr Decl. ¶¶ 2, 12-22.

18 The best interpretation of 34 U.S.C. § 10381(c)(1) and (2) is thus what they plainly

19 say: Not that the COPS Office’s discretion to consider different priorities is

20 limited, but that its discretion is broad and that Congress has suggested a few

21 specific, important priorities that the Office “may” – not “shall,” not “may only” –

22 consider when exercising that discretion.3

23

24

3 In addition, the fact that 34 U.S.C. § 10381(c)(1) and (2) expressly refer to

the applicants’ statutes does not suggest that the COPS Office otherwise lacks

25 authority to consider an applicant’s “law and policies” (contra Doc. 57 at 11).

26 Many of the factors long considered by the Office relate to an applicant’s “laws and policies,” including the preference of military veterans in hiring (not reflected in the

27 COPS statute until 2017), the regular assessment of employee satisfaction, and the

28 exercise of flexibility in officer shift assignments. Dorr Decl. ¶¶ 18-19. Further, plaintiff asserts incorrectly that the access and notice factors seek to change

11

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1

Fourth, the Supreme Court’s decision in Gregory v. Ashcroft does not require

2 a “clear statement” in the statute authorizing the COPS Office to use the challenged

3 scoring factors (contra Doc. 57 at 13-14). The circumstances that led the Gregory

4 Court to require a “clear statement” of agency authority in that case do not exist

5 here. There, Missouri state judges argued that a state constitutional provision

6 requiring judges to retire at age seventy violated the Age Discrimination in

7 Employment Act (“ADEA”). 501 U.S. at 455-61. The Court observed that the

8 authority to “establish a qualification for those who sit as their judges . . . goes

9 beyond an area traditionally regulated by the States; it is a decision of the most

10 fundamental sort for a sovereign entity.” Id. at 460. In that context, the Court

11 observed, it would not construe a federal statute as overriding the State’s will unless

12 that intention were “unmistakably clear.” Id.

13

Committing to focus on immigration enforcement during the period of a

14 grant, as well as the ad hoc cooperation that the “access” and “notice” factors

15 envision, are entirely unlike the qualifications of state judges at issue in Gregory.

16 As the Court observed there, state judges are among the “most important [state]

17 government officials,” id. at 463, and the ADEA would have categorically over-

18 ridden the State’s constitutional choice regarding their qualifications. By contrast,

19 taking advantage of the challenged scoring factors in the COPS Hiring Program

20 would only require a jurisdiction to cooperate with immigration enforcement in

21 ways proposed by the grantee or to give federal authorities access to certain aliens

22 in the United States – aliens whose admission, conduct, presence, and potential

23 removal are quintessentially the responsibility of the Federal Government. See

24 Arizona v. United States, 567 U.S. 387, 394-95 (2012). Securing such voluntary

25 cooperation or access – far from endangering “the independence of the States,”

26

27 applicants’ “laws” (Doc. 57 at 10); rather, those factors ask whether the applicant 28 has “rules, regulations, policies, and/or practices” that provide the described access
and notice to federal immigration authorities (Doc. 1 ¶ 81).

12

Case 2:17-cv-07215-R-JC Document 69 Filed 02/08/18 Page 17 of 23 Page ID #:2254

1 Gregory, 501 at 460 – merely assists federal authorities in performing their duties.

2 Furthermore, Gregory did not involve an exercise of the spending power, but rather

3 the direct regulation of a state government activity. Thus, there is no basis for

4 applying Gregory’s “unmistakable clarity” rule here.4

5 C. The Immigration-Related Factors Are Consistent

6

with the Spending Clause

7

Plaintiff’s complaint alleges that the immigration-related factors violate the

8 Spending Clause both because they are “ambiguous” and because they are purport-

9 edly “unrelated” to the purposes of CHP grants (Doc. 1 ¶¶ 124-125). See S. Dakota

10 v. Dole, 483 U.S. 203 (1987). Plaintiff’s opposition says nothing about the ambi-

11 guity component of Dole, so the City has apparently withdrawn that challenge. In

12 any event, as explained in defendants’ motion, the COPS Office provided brief

13 examples of some specific activities an applicant could propose in each focus area

14 (including Illegal Immigration), but deliberately allowed applicants to develop their

15 own approaches. Dorr Decl. ¶ 8. The notice and access factors are reasonably

16 detailed, and the Office offered to answer any questions an applicant had about

17 them. Id. ¶ 28.

18

Under Mayweathers v. Newland, the “relatedness” component of Dole is only

19 a “possible ground” for invalidating an enactment and does not impose an “exacting

20 standard.” 314 F.3d 1062, 1067 (9th Cir. 2002). Plaintiff argues that “enforcement

21 of federal civil immigration laws is unrelated to the COPS grant’s purpose of

22

23

4 The Fourth Circuit’s decision in Virginia Department of Education v. Riley,

24 106 F.3d 559 (4th Cir. 1997), also weighs against applying Gregory in this case (contra Doc. 57 at 13). The court held there that the Individuals with Disabilities

25 Education Act did not authorize the U.S. Department of Education to withhold

26 Virginia’s entire annual IDEA grant based on the State’s refusal to provide educational services for students who had been expelled for reasons unrelated to their

27 disabilities. In so holding, the court repeatedly emphasized that the case involved

28 “matters peculiarly within the province of the States” – that is, the “core function of ensuring order and discipline in their schools.” 106 F.3d at 562; see id. at 565, 566.

13

Case 2:17-cv-07215-R-JC Document 69 Filed 02/08/18 Page 18 of 23 Page ID #:2255

1 promoting community-oriented policing” and that the COPS Office is “diverting

2 [CHP] funds to federal immigration enforcement and away from their statutorily

3 authorized purpose” (Doc. 57 at 10, 20). But particularly given the breadth of what

4 community-oriented policing includes, the immigration-related factors challenged

5 here bear much more than the minimally required “some relationship” to the

6 congressional purposes behind the COPS Hiring Program. Mayweathers, 314 F.3d

7 at 1067.

8

Congress established the CHP to promote “community-oriented policing,” 34

9 U.S.C. § 10381(b)(1), (2), “to increase police presence, to expand and improve

10 cooperative efforts between law enforcement agencies and members of the

11 community to address crime and disorder problems, and otherwise to enhance

12 public safety,” Pub. L. No. 103-322, Title I, § 10003(a), 108 Stat. 1808 (1994). As

13 discussed above, community-oriented policing is an overall philosophy that should

14 inform all law enforcement activities. It focuses on “anticipat[ing] and prevent[ing]

15 crime by use of community-oriented, problem solving techniques” rather than

16 “simply responding to crimes after the fact.” H.R. Rep. No. 103-324 at 8-9.

17

Both community-oriented policing and the enforcement of federal immigra-

18 tion law seek to prevent crime and “enhance public safety.” Adjudications under

19 the criminal laws often have consequences under federal immigration law. The

20 Immigration and Nationality Act (“INA”) explicitly coordinates prosecution under

21 the criminal laws and enforcement of immigration laws – by, among other things,

22 requiring that aliens serve criminal sentences before entering immigration custody

23 and providing that federal custody under the immigration laws commence

24 immediately upon conclusion of a criminal sentence. See 8 U.S.C. § 1231(a)(4)(A)

25 (providing that Department of Homeland Security “may not remove an alien who is

26 sentenced to imprisonment until the alien is released from imprisonment”); id.

27 § 1231(a)(1)(B)(iii) (stating that removal period “begins on . . . the date the alien is

28 released from [state or local criminal] detention”). Finally, the access and notice

14

Case 2:17-cv-07215-R-JC Document 69 Filed 02/08/18 Page 19 of 23 Page ID #:2256

1 factors at issue relate to aliens who are under criminal detention and thus have

2 either committed crimes or are suspected of having committed crimes. Dorr Decl.

3 ¶ 29. Accordingly, to the extent Dole requires “relatedness,” that requirement is

4 satisfied here.

5 D. The Challenged Factors Are Consistent with the

6

Administrative Procedure Act

7

The validity of plaintiff’s claim under the Administrative Procedure Act

8 essentially depends on the validity of the City’s constitutional challenges to the

9 immigration-related factors. The crux of plaintiff’s APA claim is that defendants

10 have not “explained the connection between the immigration factors and

11 community policing” (Doc. 57 at 22). As discussed above, however, “community

12 policing” affects all aspects of public safety, and the INA inextricably links the

13 enforcement of criminal law with the enforcement of immigration law, especially in

14 relation to the aliens in criminal custody who are covered by the access and notice

15 factors challenged here. The challenged scoring factors are reasonable because

16 Congress established the COPS Hiring Program to promote public safety, coopera-

17 tion among law enforcement agencies, and community-oriented policing – goals

18 that are all enhanced by facilitating federal access to aliens who have violated

19 immigration law and who have violated, or are suspected of violating, state or local

20 criminal laws.

21

USDOJ believes that “[c]ities and states that cooperate with federal law

22 enforcement make all of us safer by helping remove dangerous criminals from our

23 communities.” Pl.’s Req. Jud. Notice, Ex. D (Doc. 49-3). The “arbitrary and

24 capricious” standard under the APA is “highly deferential, presuming the agency

25 action to be valid and affirming the agency action if a reasonable basis exists for its

26 decision.” Indep. Acceptance Co. v. California, 204 F.3d 1247, 1251 (9th Cir.

27 2000) (internal quotation marks omitted). “[A] court is not to substitute its

28 judgment for that of the agency, and should uphold a decision of less than ideal

15

Case 2:17-cv-07215-R-JC Document 69 Filed 02/08/18 Page 20 of 23 Page ID #:2257

1 clarity if the agency’s path may reasonably be discerned.” FCC v. Fox Television

2 Stations, Inc., 556 U.S. 502, 513-14 (2009) (internal quotation marks omitted).

3 That standard is readily met here.

4 III. Any Injunction Herein Should Be Limited to the Plaintiff

5

Plaintiff’s proposed order on its motion for summary judgment would

6 prohibit the COPS Office from relying on the challenged factors in the COPS

7 Hiring Program as a whole, nationwide (Doc. 49-6). But if this Court were to

8 conclude that Los Angeles had established a right to judgment, any injunction

9 should be limited to the plaintiff rather than applying to all CHP applicants. This is

10 compelled by principles of both standing and the proper scope of equitable relief.

11

First, a plaintiff generally has standing to pursue relief only for itself, and not

12 for absent third parties. See J & J Sports Prods., Inc. v. Dean, No. 10-05088 CW,

13 2011 WL 4080052, at *4 (N.D. Cal. Sept. 12, 2011). This is consistent with the

14 basic rules of standing: Injury to third parties does not usually affect the plaintiff,

15 and relief for a third party normally cannot redress any injury to the plaintiff. See

16 Steel Co. v. Citizens for a Better Env’t, 523 U.S. 83, 102-03 (1998). A contrary

17 ruling would exceed the scope of a district court’s jurisdiction under Article III.

18 See Wickenkamp v. Baum, No. 2:15-CV-00483-PK, 2015 WL 5686746, at *5 (D.

19 Or. Sept. 22, 2015).

20

Second, equitable relief should normally be limited to what is needed to

21 make the plaintiff whole. “[A]n injunction must be narrowly tailored to affect only

22 those persons over which [the court] has power, and to remedy only the specific

23 harms shown by the plaintiffs, rather than to enjoin all possible breaches of the

24 law.” Price v. City of Stockton, 390 F.3d 1105, 1117 (9th Cir. 2004) (internal

25 quotation marks omitted). It should be “no more burdensome to the defendant than

26 necessary to provide complete relief to plaintiffs.” Zepeda v. INS, 753 F.2d 719,

27 728 n.1 (9th Cir. 1983) (internal quotation marks omitted). For these reasons,

28 courts routinely deny requests for nationwide injunctive relief. See Los Angeles

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Case 2:17-cv-07215-R-JC Document 69 Filed 02/08/18 Page 21 of 23 Page ID #:2258

1 Haven Hospice, Inc. v. Sebelius, 638 F.3d 644, 664 (9th Cir. 2011) (affirming

2 judgment for plaintiff but reversing entry of nationwide injunction as abuse of

3 discretion); see also Skydive Arizona, Inc. v. Quattrocchi, 673 F.3d 1105, 1116 (9th

4 Cir. 2012) (affirming district court’s refusal to grant nationwide relief).

5

Third, these principles are especially important in litigation involving the

6 Federal Government. The Supreme Court has held, for example, that non-mutual

7 collateral estoppel does not apply against the Federal Government because it would

8 “substantially thwart the development of important questions of law by freezing the

9 first final decision rendered on a particular legal issue.” United States v. Mendoza,

10 464 U.S. 154, 160 (1984). Such “freezing” would “deprive [the Supreme] Court of

11 the benefit it receives from permitting several courts of appeals to explore a

12 difficult question.” Id. A nationwide injunction against the Government would

13 have much the same effect, preventing the implementation of a challenged measure

14 in all circuits. See Los Angeles Haven Hospice, Inc., 638 F.3d at 664 (“The

15 Supreme Court has . . . suggested that nationwide injunctive relief may be inappro-

16 priate where a regulatory challenge involves important or difficult questions of law,

17 which might benefit from development in different factual contexts and in multiple

18 decisions by the various courts of appeals.”); see also United States v. AMC Entm’t,

19 Inc., 549 F.3d 760, 773 (9th Cir. 2008) (“Courts in the Ninth Circuit should not

20 grant relief that would cause substantial interference with the established judicial

21 pronouncements of . . . sister circuits. To hold otherwise would create tension

22 between circuits and would encourage forum shopping.”).

23

Despite these principles, Los Angeles argues here that only a nationwide

24 injunction can provide the relief it seeks because its injury consists of the additional

25 points “unlawfully” given to other applicants in the CHP scoring process (Doc. 57

26 at 24). But the Court could provide complete relief, properly limited to the

27 plaintiff, by ordering the COPS Office to score Los Angeles’s future application

28 (assuming there is such an application) as if the City had qualified for any addi-

17

Case 2:17-cv-07215-R-JC Document 69 Filed 02/08/18 Page 22 of 23 Page ID #:2259

1 tional points attributable to immigration-related factors. Such an order would make

2 the plaintiff whole.

3

Moreover, Los Angeles has vigorously objected to the entry of a nationwide

4 injunction in an analogous situation. In Texas v. United States, the Fifth Circuit

5 affirmed a nationwide injunction against programs allowing certain aliens to remain

6 in the United States. 809 F.3d 134 (5th Cir. 2015). In an amicus brief filed with

7 the Supreme Court, Los Angeles and other jurisdictions urged the Court to vacate

8 the injunction because the plaintiffs had failed “to establish injury sufficient to

9 enjoin the [programs] nationwide.” See Brief for Amici Curiae, United States v.

10 Texas, 136 S. Ct. 2271 (2016) (No. 15-674), 2016 WL 891345, at *20 (Attachment

11 3 hereto). The City and its fellow amici argued that, to justify “an expansive

12 nationwide injunction,” the plaintiffs there would have to “establish standing to

13 justify the scope of the injunction.” Id. at *19, *30. In this case, the plaintiff has

14 not even attempted to establish standing to seek a nationwide injunction against the

15 use of immigration-related factors in the COPS Hiring Program. By its own

16 arguments, any injunction herein should be limited to Los Angeles.

17

CONCLUSION

18

For the above reasons and for those stated in Defendants’ Motion for Partial

19 Summary Judgment, judgment should be entered for the defendants on Counts

20 Four, Five, and Six of plaintiff’s Complaint.

21 Dated: February 8, 2018

22 Respectfully submitted,
23

24

CHAD A. READLER

Acting Assistant Attorney General

25

26

NICOLA T. HANNA

United States Attorney

27

28

JOHN R. TYLER

Assistant Director

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Case 2:17-cv-07215-R-JC Document 69 Filed 02/08/18 Page 23 of 23 Page ID #:2260

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/s/ W. Scott Simpson

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W. SCOTT SIMPSON (Va. Bar #27487)

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Senior Trial Counsel

5

Attorneys, Department of Justice

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Civil Division, Room 7210

Federal Programs Branch

7

20 Massachusetts Avenue, NW

8

Washington, D.C. 20530

Telephone:(202) 514-3495

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Facsimile: (202) 616-8470

10

E-mail: scott.simpson@usdoj.gov

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COUNSEL FOR DEFENDANTS

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NO JS-6

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UNITED STATES DISTRICT COURT

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CENTRAL DISTRICT OF CALIFORNIA

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12 CITY OF LOS ANGELES,

) CASE NO. CV 17-7215-R )

13

Plaintiff,

) ORDER GRANTING PLAINTIFF’S

) MOTION FOR PARTIAL SUMMARY

14

v.

) JUDGMENT AND DENYING

15 JEFFERSON B. SESSIONS III; et al.,

) DEFENDANTS’ MOTION FOR PARTIAL ) SUMMARY JUDGMENT

16

)

Defendants.

)

17

)

)

18

Before the Court is Plaintiff’s Motion for Partial Summary Judgment as to Counts Four,

19 Five, and Six of Plaintiff’s Complaint, filed on November 21, 2017, and Defendants’ Motion for

20 Partial Summary Judgment as to Counts Four, Five, and Six of Plaintiff’s Complaint, filed on

21 January 12, 2018. (Dkts. 49, 53). Having considered briefing by the parties, briefing by amici

22 curiae, and oral argument of counsel, this Court issues the following order.

23

Congress created a grant program to support local governments in hiring officers for

24 deployment in community-oriented policing (“COPS”). The Department of Justice (“DOJ”),

25 headed by Defendant Jefferson B. Sessions III (“Attorney General”), administers this grant

26 program through the “COPS Office.” The COPS Office administers the COPS Hiring Program

27 (“CHP”) grant, which “provides funding directly to law enforcement agencies to hire and/or rehire

28 career law enforcement officers in an effort to increase their community policing capacity and

Case 2:17-cv-07215-R-JC Document 75 Filed 04/11/18 Page 2 of 13 Page ID #:2317

1 crime prevention efforts.”

2

Each fiscal year, the COPS Office issues applications for the CHP grant and selects local

3 governments to receive funding. Because funds are limited, the COPS Office created this scoring

4 system to best allocate the funds: Community Policing (50% of score), Crime (30% of score), and

5 Fiscal Health (20% of score). The COPS Office also awards “additional consideration” bonus

6 points but does not disclose their relative weight.

7

In the fiscal year (“FY”) 2017 application cycle for CHP grants, the COPS Office added a

8 “focus area” called “Illegal Immigration.” The COPS Office explained that additional

9 consideration may be given to applicants that partner with federal law enforcement to address

10 illegal immigration. On September 12, 2017, the COPS Office sent an e-mail with an attached

11 “Certification of Illegal Immigration Cooperation” form that each applicant could sign to qualify

12 for the additional consideration points. The form required applicants to certify implementation of

13 “rules, regulations, policies, and/or practices” granting federal immigration authorities (1) access

14 to detention facilities to ask aliens and suspected aliens about their immigration status and (2) at

15 least 48 hours’ notice of their expected release from custody (“Challenged Considerations”).

16

Los Angeles has applied for a CHP grant in 39% of all cycles since inception. It received

17 CHP grants in 2012 and 2016, the last two times it applied. It also applied for a FY 2017 grant.

18

On September 29, 2017, Los Angeles filed its Complaint and an application seeking to

19 preliminarily enjoin Defendants from imposing the Challenged Considerations. On October 12,

20 2017, Defendants declared they had already selected grant awardees and Los Angeles was not

21 among them. They also declared that Los Angeles would not have received a grant even if it had

22 qualified for the additional bonus points. On October 16, 2017, Los Angeles withdrew its

23 preliminary injunction application citing Defendants’ declaration and explaining that it could not

24 secure timely relief in advance of the CHP award decisions. Los Angeles now seeks to enjoin

25 Defendants from imposing the Challenged Considerations in future grant cycles. To that end, both

26 Los Angeles and Defendants move for summary judgment on Counts 4, 5, and 6 of the Complaint.

27

Summary judgment is appropriate where there is no genuine issue of material fact and the

28 moving party is entitled to judgment as a matter of law. Fed. R. Civ. P. 56(a); Celotex Corp. v.

2

Case 2:17-cv-07215-R-JC Document 75 Filed 04/11/18 Page 3 of 13 Page ID #:2318

1 Catrett, 477 U.S. 317, 330 (1986). Partial summary judgment may be granted on particular

2 claims. Fed. R. Civ. P. 56(a).

3 Justiciability

4

Article III of the Constitution allows federal courts to adjudicate only live cases and

5 controversies. Under this requirement, a plaintiff must have “standing” to sue for relief. The

6 elements of standing are (1) injury in fact, (2) causation, and (3) redressability. Lujan v.

7 Defenders of Wildlife, 504 U.S. 555, 560-61 (1992). To establish standing to seek equitable relief,

8 the plaintiff must also show a likelihood of future injury. City of L.A. v. Lyons, 461 U.S. 95, 105

9 (1983). “The existence of standing turns on the facts as they existed at the time the plaintiff filed

10 the complaint.” Skaff v. Meridien N. Am. Beverly Hills, LLC, 506 F.3d 832, 838 (9th Cir. 2007).

11

A grant competitor may suffer “competitive injury” for purposes of standing. “[W]hen

12 challenged agency conduct allegedly renders a [competitor] unable to fairly compete for some

13 benefit, that [competitor] has suffered a sufficient ‘injury in fact’ and has standing.” Preston v.

14 Heckler, 734 F.2d 1359, 1365 (9th Cir. 1984); see also Int’l Bhd. of Teamsters v. U.S. Dep’t of

15 Transp., 861 F.3d 944, 950 (9th Cir. 2017) (“[E]conomic actors suffer an injury in fact when

16 agencies lift regulatory restrictions on their competitors or otherwise allow increased competition

17 against them…. This doctrine of ‘competitor standing’ is grounded in the basic law of economics

18 that increased competition leads to actual injury.”). The grant competitor is not required to show

19 that it would have received the grant but for the disadvantage it faced. Rather, “the ‘injury in fact’

20 is the inability to compete on an equal footing in the bidding process….” Ne. Fla. Chapter of

21 Associated Gen. Contractors of Am. v. Jacksonville, 508 U.S. 656, 666 (1993).

22

Los Angeles has standing to bring suit based on competitive injury. Los Angeles filed its

23 Complaint promptly upon notification that Defendants would award bonus points based on

24 compliance with the Challenged Considerations and before funds were distributed. As Los

25 Angeles did not certify compliance with these conditions, it could not fairly compete with those

26 competitors that did. Therefore, Los Angeles suffered ongoing competitive injury at the time it

27 filed suit and properly sought to enjoin Defendants from creating an uneven playing field.

28 Defendants do not challenge application of the remaining standing elements.

3

Case 2:17-cv-07215-R-JC Document 75 Filed 04/11/18 Page 4 of 13 Page ID #:2319

1

Defendants instead argue the case is now moot because the COPS Office has since

2 awarded all FY 2017 grants. “Mootness [is] the doctrine of standing set in a time frame: The

3 requisite personal interest that must exist at the commencement of the litigation (standing) must

4 continue throughout its existence (mootness).” Sanford v. MemberWorks, Inc., 625 F.3d 550, 556

5 (9th Cir. 2010). But there is an exception to the mootness doctrine where the plaintiff’s harm is

6 “capable of repetition yet evading review.” Kingdomware Techs., Inc. v. United States, 136 S. Ct.

7 1969, 1976 (2016). Under this exception, (1) the challenged action must be too short in duration

8 to fully litigate before the claim expires, and (2) there must be a “reasonable expectation” that the

9 plaintiff will again be subject to the challenged action. Id.

10

This case is not moot because Los Angeles’ harm is capable of repetition in a manner that

11 evades judicial review. First, Los Angeles could not fully litigate this case before completion of

12 the FY 2017 grant process. Exactly one month passed between the date Defendants announced

13 imposition of the Challenged Considerations and selected successful applicants. Therefore, Los

14 Angeles had no more than one month to meaningfully challenge the selection process. The Ninth

15 Circuit has explained that even “actions lasting only one or two years evade review.” Karuk Tribe

16 of Cal. v. U.S. Forest Serv., 681 F.3d 1006, 1018 (9th Cir. 2012). Additionally, disputes over

17 government grant awards are common examples of challenges too short in duration to be fully

18 litigated before funds are distributed. See Wright & Miller, Fed. Prac. & Proc. § 3533.8 (3d ed.

19 2017). Therefore, Los Angeles satisfies the first prong.

20

Second, there is at least a “reasonable expectation” that Los Angeles will suffer similar

21 injury in FY 2018. The Attorney General has touted immigration enforcement as a cornerstone of

22 the DOJ’s agenda, meaning competitors can reasonably expect similar conditions to apply in FY 23 2018.1 Further, it is reasonably likely Los Angeles will seek a FY 2018 CHP award because it has

24 applied for a grant in 39% of all cycles since inception. Although 39% does not represent a

25 statistical probability, it is more than sufficient to satisfy the “reasonable expectation” standard.

26

27 1 See, e.g., DOJ, Off. of Public Affairs, Attorney General Jeff Sessions Delivers Remarks on Sanctuary Jurisdictions,
https://www.justice.gov/opa/speech/attorney-general-jeffsessions-delivers-remarks-sanctuary-jurisdictions; DOJ, Off.

28

of Public Affairs, Attorney General Sessions Announces $98 Million To Hire Community Policing Officers, https://www.justice.gov/opa/pr/attorney-general-sessions-announces-98-million-hirecommunity-policing-officers.

Defendants do not object to admission of either piece of evidence, and both are publicly-available pages, the accuracy

of which “cannot reasonably be questioned.” Fed. R. Evid4. 201(b)(2).

Case 2:17-cv-07215-R-JC Document 75 Filed 04/11/18 Page 5 of 13 Page ID #:2320

1 See Honig v. Doe, 484 U.S. 305, 318 n.6 (1988) (explaining that “reasonable expectation” is a

2 much lower bar than “demonstrably probable”). A high-ranking officer also declared under oath

3 that Los Angeles will apply for a FY 2018 grant. Therefore, Los Angeles satisfies the second 4 prong, and this action is justiciable.2

5 Count 4

6

Los Angeles alleges in Count 4 that imposition of the Challenged Considerations is ultra

7 vires.

8

An agency “has no power to act…unless and until Congress confers power upon

9 it.” La. Pub. Serv. Comm’n v. FCC, 476 U.S. 355, 374 (1986). When agencies “act improperly,

10 no less than when they act beyond their jurisdiction, what they do is ultra vires.” City of Arlington

11 v. FCC, 569 U.S. 290, 297 (2013). While “Congress may attach conditions on the receipt of

12 federal funds,” a federal agency may not do so without Congress’ permission. South Dakota v.

13 Dole, 483 U.S. 203, 206 (1987); see also City of Chicago v. Sessions, 264 F. Supp. 3d 933, 940

14 (N.D. Ill. 2017) (“Whether the new conditions on the…grant are proper depends on whether

15 Congress conferred authority on the Attorney General to impose them.”).

16

“If Congress intends to alter the usual constitutional balance between the States and the

17 Federal Government, it must make its intention to do so unmistakably clear in the language of the

18 statute.” Gregory v. Ashcroft, 501 U.S. 452, 460 (1991). Although Gregory did not address this

19 constitutional balance in the grant context, the Court explained that this clear statement rule

20 “applie[s] in other contexts,” including any “traditionally sensitive areas, such as legislation

21 affecting the federal balance.” Id. at 461. The Fourth Circuit, citing Supreme Court precedent,

22 extended the clear statement rule specifically to federal grants. Com. of Va., Dep’t of Educ. v.

23 Riley, 106 F.3d 559, 566 (4th Cir. 1997) (en banc). The Riley Court emphasized the importance of

24 such a rule where the grant condition required the surrender of a critical power reserved to the

25 states by the Tenth Amendment. Id. The Supreme Court has emphasized that the police power is

26 one such critical state function. See, e.g., Gonzales v. Oregon, 546 U.S. 243, 270 (2006) (states

27

28

2 In a footnote, Defendants argue this matter is incapable of repetition because the FY 2017 cycle cannot be repeated. Defendants’ attempt to break each fiscal cycle into distinct programs would render any challenge impossible. Each

year, grant competitors may only have one month to challenge that cycle’s scoring factors, only to be told upon

withdrawal of the challenge that the following cycle canno5t be repeated.

Case 2:17-cv-07215-R-JC Document 75 Filed 04/11/18 Page 6 of 13 Page ID #:2321

1 have “great latitude under their police powers to legislate as to the protection of the lives, limbs,

2 health, comfort, and quiet of all persons”).

3

The Challenged Considerations upset the constitutional balance between state and federal

4 power by requiring state and local law enforcement to partner with federal authorities. These

5 conditions infringe upon the state police power. The Challenged Considerations also upset the

6 constitutional balance by requiring state and local participation in a historically federal function—

7 immigration enforcement. See, e.g., Arizona v. United States, 567 U.S. 387, 394 (2012) (“The

8 Government of the United States has broad, undoubted power over the subject of immigration and

9 the status of aliens.”). Accordingly, the dispositive question before this Court is whether Congress

10 has “unmistakably” authorized the Attorney General to impose the Challenged Considerations.

11

CHP grants are awarded under the COPS statute, which authorizes the Attorney General to

12 issue grants to state and local governments to rehire law enforcement officers for deployment in

13 community policing. 34 U.S.C. § 10381(a), (b)(1)-(2). Subsection (c) says “the Attorney General

14 may give preferential consideration” to CHP grant applicants in only three circumstances, none of 15 which apply to federal immigration.3 This subsection is the only place in the statute that allows

16 the Attorney General to look beyond an applicant’s need and use for CHP grant money.

17

Defendants argue that subsection (c) does not limit the universe of applications the

18 Attorney General may preferentially consider. According to Defendants, because “the Attorney

19 General may give preferential treatment” in the three circumstances listed in subsection (c), the

20 Attorney General may also develop additional factors to consider.

21

In the Court’s view, subsection (c) does not plainly or even arguably authorize the

22 Attorney General to give preferential treatment to competitors based on compliance with the

23 Challenged Considerations. Defendants’ reading effectively renders subsection (c) superfluous.

24 See Chubb Custom Ins. Co. v. Space Sys./Loral, Inc., 710 F.3d 946, 966 (9th Cir. 2013) (“It is a

25 well-established rule of statutory construction that courts should not interpret statutes in a way that

26 renders a provision superfluous.”). Contrary to Defendants’ claim, the enumeration of

27 3 This section authorizes the Attorney General to give preferential consideration for the following: (1) an application

28

“for hiring and rehiring additional career law enforcement officers that involves a non-Federal contribution exceeding the 25 percent minimum” contribution; (2) the applicant is in a state with laws that treat minors engaged in

commercial sex as victims; or (3) the applicant is in a state with laws allowing the vacatur of arrests or convictions for

non-violent crimes committed by human trafficking victim6s directly related to their human trafficking.

Case 2:17-cv-07215-R-JC Document 75 Filed 04/11/18 Page 7 of 13 Page ID #:2322

1 discretionary factors in this context must be read to exclude others. See United States v. Vonn,

2 535 U.S. 55, 65 (2002) (absent contrary indications, “expressing one item of [an] associated group

3 or series excludes another left unmentioned”); see also Gonzales, 546 U.S. at 274 (“Congress is

4 unlikely to alter a statute’s obvious scope…through muffled hints….”). If the Attorney General

5 has complete discretion to favor certain applicants, Congress’ subsection (c) directives are

6 meaningless. Congress knew how to confer the broad power the Attorney General seeks and

7 chose not to here. See, e.g., 42 U.S.C. § 3796gg-l(e)(3) (Attorney General can “impose reasonable

8 conditions” on grant awards); 42 U.S.C. § 10305(a)(2) (Secretary can impose conditions he

9 “considers to be in the best interest of the Nation”); United States v. Dang, 488 F.3d 1135, 1140

10 (9th Cir. 2007) (inclusion of catch-all provision indicates gap for agency to fill). Subsection (c)

11 does not permit Defendants to favor applicants compliant with the Challenged Considerations.

12

This conclusion does not mean, as Defendants contend, that the Attorney General is

13 relegated to either developing an arbitrary method of ranking applicants or choosing the winning

14 applicants by random lottery. The Attorney General may select applicants with programs that best

15 embody the statutory purpose of the CHP grant. See 34 U.S.C. § 10382(c)(10) (applicants must

16 “explain how the grant will be utilized to reorient the [applicant’s] mission toward community-

17 oriented policing or enhance its involvement in or commitment to community-oriented policing”).

18

“Community policing begins with a commitment to building trust and mutual respect

19 between police and communities,” which is “critical to public safety.”4 Los Angeles argues that

20 community policing must foster trust between police and communities, and the Challenged

21 Considerations do the opposite. Defendants, citing a House Report and the Los Angeles Police

22 Department’s website, argue at some length that community policing is concerned broadly with 23 crime prevention and public safety, which the Challenged Considerations address.5

24

There is no dispute between the parties that community policing ultimately aims to prevent

25 crime and keep the public safe. But all policing is fundamentally aimed at these end goals.

26 4 COPS Office, “About,” https://cops.usdoj.gov/about. Defendants do not object to Los Angeles’ request for judicial

27

notice of this publicly-available page, the accuracy of which “cannot reasonably be questioned.” Fed. R. Evid. 201(b)(2).

28 5 H.R. Rep. No. 103-324 at 8-9 (1993); see Community Policing Unit,
http://www.lapdonline.org/support_lapd/content_basic_view/731. The accuracy of this publicly-available page
“cannot reasonably be questioned.” Fed. R. Evid. 201(b)(27).

Case 2:17-cv-07215-R-JC Document 75 Filed 04/11/18 Page 8 of 13 Page ID #:2323

1 Community policing is distinct from other types of policing because of the means used to achieve

2 these end goals, namely partnerships between police and communities. Pub. L. No. 103-322, Title

3 I, § 10003(a), 108 Stat. 1796 (1994) (Congress established COPS statute “to increase police

4 presence, to expand and improve cooperative efforts between law enforcement agencies and

5 members of the community to address crime and disorder problems, and otherwise to enhance

6 public safety”) (emphasis added); see Brief of Amici Curiae Prosecutors and Law Enforcement

7 Leaders, No. 17-cv-7215-R-JCx, pp. 3-4, (community policing “requires police to interact with

8 neighborhood residents in a manner that will build trust and improve the level of cooperation with

9 the police department”). Defendants’ attempt to use these funds to encourage partnerships

10 between local police and federal immigration authorities encroaches on territory Congress did not

11 contemplate. Congress mandated that CHP grants must be used for community policing, not

12 policing generally.

13

Further, Defendants’ broad interpretation of their authority carries extraordinary

14 implications. If the Attorney General can favor applicants based on any factors relevant to public

15 safety, he enjoys nearly limitless discretion to select grant awardees in ways not even tangentially

16 related to community policing. For example, he may favor CHP applicants that agree to

17 implement or abolish capital punishment in the name of public safety. In the absence of clear

18 statutory guidance, this Court cannot conclude that Congress intended to stretch Defendants’

19 authority so broadly. See Robbins v. Reagan, 780 F.2d 37, 48 (D.C. Cir. 1985) (“When Congress

20 limits the purpose for which a grant can be made, it can be presumed that it intends that the

21 dispersing agency makes its allocations based on factors solely related to the goal of implementing

22 the stated statutory purposes in a reasonable fashion, rather than taking irrelevant or impermissible

23 factors into account.”).

24

Accordingly, Defendants’ imposition of the Challenged Considerations is ultra vires as a

25 matter of law. The Court does not reach Los Angeles’ “direction, supervision, or control”

26 argument. See Riley, 106 F.3d at 566 (“If Congress has not unequivocally conditioned receipt of

27 federal funds in the manner claimed by the [agency],…then [the] inquiry is at an end.”).

28

Los Angeles is entitled to summary judgment on Count 4.

8

Case 2:17-cv-07215-R-JC Document 75 Filed 04/11/18 Page 9 of 13 Page ID #:2324

1 Count 5

2

Los Angeles alleges in Count 5 that the Challenged Considerations violate the Spending

3 Clause.

4

Under the Spending Clause, “if Congress desires to condition the [participant’s] receipt of

5 federal funds, it must do so unambiguously, enabling the [participant] to exercise [its] choice

6 knowingly, cognizant of the consequences of [its] participation.” Dole, 483 U.S. at 207. Further,

7 an exercise of Spending Clause authority must be “reasonably related” to the articulated goal of

8 the grant program. Nevada v. Skinner, 884 F.2d 445, 447 (9th Cir. 1989); Mayweathers v.

9 Newland, 314 F.3d 1062, 1066 (9th Cir. 2002).

10

As a preliminary matter, the Court rejects Defendants’ argument that the Challenged

11 Considerations are not “conditions” because compliance is not required to receive a CHP grant

12 award. First, Defendants offer no supporting precedent. Second, compliance with these

13 considerations is required in order for applicants to compete on a level playing field. Not 14 coincidentally, 80% of successful applicants complied with the Challenged Considerations.6

15 Third, because applicants who do not comply are less likely to receive a CHP grant, the

16 Challenged Considerations will be dispositive in at least some cases. Finally, if Defendants are

17 correct, it would be simple for federal agencies to avert Spending Clause requirements by labelling

18 all considerations “plus factors.” This Court cannot agree.

19

Next, the Challenged Considerations violate the Spending Clause because, as discussed

20 above, Congress did not unambiguously condition receipt of a CHP grant on local compliance

21 with federal authorities. Defendants’ argument that the COPS Office unambiguously instructed

22 applicants how to qualify for bonus points misses the point. Dole counsels that Congress must be

23 clear in its directives. 483 U.S. at 207. It is irrelevant whether the COPS Office is transparent

24 where Congress does not authorize it to act.

25

Although the analysis may conclude here, the Court briefly notes that the Challenged

26 Considerations are not “reasonably related” to the articulated goal of the COPS program. As

27 explained above, community policing is about developing partnerships between local authorities

28 and the community. Whether local police cooperation with federal authorities allows for more

6 See supra note 1

9

Case 2:17-cv-07215-R-JC Document 75 Filed 04/11/18 Page 10 of 13 Page ID #:2325

1 effective enforcement is not the relevant inquiry. In short, there is no relationship between local

2 police partnerships with federal authorities and community policing. Therefore, the Challenged

3 Considerations violate the Spending Clause as a matter of law.

4

Accordingly, Los Angeles is entitled to summary judgment on Count 5.

5 Count 6

6

Los Angeles alleges in Count 6 that the Challenged Considerations are arbitrary and

7 capricious in violation of the Administrative Procedure Act (“APA”).

8

Under the APA, agency actions must be set aside if they are “arbitrary, capricious, an

9 abuse of discretion, or otherwise not in accordance with law.” 5 U.S.C. § 706(2)(A). In the Ninth

10 Circuit, courts “must not rubber-stamp administrative decisions.” Alaska Oil & Gas Ass’n v.

11 Jewell, 815 F.3d 544, 554 (9th Cir. 2016). “Instead, the [agency] action is presumed valid and is

12 upheld if a reasonable basis exists for the decision.” Id. “[T]he agency must examine the relevant

13 data and articulate a satisfactory explanation for its action including a rational connection between

14 the facts found and the choice made.” Motor Vehicle Mfrs. Ass’n v. State Farm Mut. Auto. Ins.

15 Co., 463 U.S. 29, 43 (1983); Alaska Oil, 815 F.3d at 554.

16

The Challenged Considerations are arbitrary and capricious as a matter of law. Only after

17 CHP grant applications were due, Defendants explained that “[c]ities and states that cooperate

18 with federal law enforcement make all of us safer by helping remove dangerous criminals from 19 our communities,” including by ending “violent crime stemming from illegal immigration.”7 But

20 there is no evidence of record, and Defendants do not argue, that Defendants based this conclusion

21 on any findings or data. Therefore, the Court cannot conclude that Defendants had a “reasonable

22 basis” for imposing the Challenged Considerations.

23

Defendants’ explanation that “[n]othing in the statutes governing CHP suggests DOJ

24 should not consider the extent to which a jurisdiction cooperates in the enforcement of

25 immigration law” is not an articulated justification for imposing the Challenged Considerations.

26 Defendants must affirmatively explain the basis for their decision. See Pac. Coast Fed’n of

27

28

7 DOJ, Off. of Public Affairs, Department of Justice Announces Priority Consideration Criteria for COPS Office Grants, https://www.justice.gov/opa/pr/department-justice-announces-priority-consideration-criteria-cops-office-

grants. Defendants do not object to Los Angeles’ request for judicial notice of this publicly-available page, the

accuracy of which “cannot reasonably be questioned.” Fe1d.0R. Evid. 201(b)(2).

Case 2:17-cv-07215-R-JC Document 75 Filed 04/11/18 Page 11 of 13 Page ID #:2326

1 Fishermen’s Ass’ns v. U.S. Bureau of Reclamation, 426 F.3d 1082, 1091 (9th Cir. 2005) (“It is a

2 basic principle of administrative law that the agency must articulate the reason or reasons for its

3 decision.”).

4

Finally, as concluded above, Defendants do not have authority to impose the Challenged

5 Considerations. See Michigan v. EPA, 135 S. Ct. 2699, 2706 (2015) (“[A]n agency’s decreed

6 result [must] be within the scope of its lawful authority….”).

7

Accordingly, the Challenged Considerations are arbitrary and capricious as a matter of law,

8 and Los Angeles is entitled to summary judgment on Count 6.

9 Permanent injunction

10

Los Angeles seeks to prospectively enjoin Defendants from imposing the Challenged

11 Considerations. To obtain a permanent injunction, the moving party must show (1) irreparable

12 injury, (2) that monetary damages are inadequate, (3) that the balance of hardships weighs in its

13 favor, and (4) that an injunction serves the public. Monsanto Co. v. Geertson Seed Farms, 561

14 U.S. 139, 156-57 (2010). As Defendants do not challenge application of these factors, the Court

15 will be brief in its analysis.

16

First, Los Angeles will suffer irreparable competitive harm if Defendants are not enjoined

17 from imposing the Challenged Considerations in future cycles. Int’l Franchise Ass’n, Inc. v. City

18 of Seattle, 803 F.3d 389, 411 (9th Cir. 2015) (“A rule putting plaintiffs at a competitive

19 disadvantage constitutes irreparable harm.”). Second, monetary damages cannot ensure that Los

20 Angeles will compete on a level playing field in future grant cycles. Third, Los Angeles has a

21 strong interest in competing fairly for federal resources. Although Defendants have an interest in

22 determining allocation of CHP funds, they have no legitimate interest in distributing these funds

23 unconstitutionally. Finally, it is “always in the public interest” to issue an injunction in order to

24 prevent the violation of constitutional rights. Melendres v. Arpaio, 695 F.3d 990, 1002 (9th Cir.

25 2012). Therefore, a permanent injunction is appropriate.

26

The parties dispute the proper scope of the injunction. Los Angeles requests that the

27 injunction apply to all CHP competitors nationwide. Defendants argue that a nationwide

28 injunction exceeds the scope of relief necessary to make Los Angeles whole.

11

Case 2:17-cv-07215-R-JC Document 75 Filed 04/11/18 Page 12 of 13 Page ID #:2327

1

A district court may issue a nationwide injunction only where “necessary to provide

2 complete relief to the plaintiff[].” See Califano v. Yamasaki, 442 U.S. 682, 702 (1979); see also

3 Easyriders Freedom F.I.G.H.T. v. Hannigan, 92 F.3d 1486, 1501-02 (9th Cir. 1996) (“[A]n

4 injunction is not necessarily made overbroad by extending benefit or protection to persons other

5 than prevailing parties in the lawsuit—even if it is not a class action—if such breadth is necessary

6 to give prevailing parties the relief to which they are entitled.”). This Court cannot reasonably

7 provide complete relief to Los Angeles without enjoining Defendants from imposing the

8 Challenged Considerations as to all competitors. Los Angeles is harmed not only because it

9 cannot qualify for bonus points, but because other jurisdictions can. An injunction that bars

10 Defendants from applying the Challenged Considerations only as to Los Angeles does little to 11 ensure an even playing field.8 Gregory v. Litton Sys., Inc., 472 F.2d 631, 633-34 (9th Cir. 1972)

12 (“[I]njunctive relief [may] be necessary to give a plaintiff or a group of plaintiffs the relief to

13 which they are entitled. Such relief, of course, may incidentally benefit many persons not before

14 the court.”).

15

The Ninth Circuit has also held that where an agency violates the APA, the district court is

16 compelled to issue a nationwide injunction. Earth Island Inst. v. Ruthenbeck, 490 F.3d 687, 699

17 (9th Cir. 2007), (rev’d in part on other grounds), (“The nationwide injunction, as applied to our

18 decision to affirm the district court’s invalidation of 36 C.F.R. §§ 215.12(f) and 215.4(a), is

19 compelled by the text of the Administrative Procedure Act…”); Zayn Siddique, Nationwide

20 Injunctions, 117 Colum. L. Rev. 2095, 2123 (2017). This Court follows the Ninth Circuit’s 21 directives. Accordingly, the injunction applies nationwide. 9

22

23 8 Defendants propose alternatives, including that this Court automatically credit Los Angeles with additional
consideration points as though it complied with the Challenged Considerations. The Court declines to issue such a

24

creative proposal with potential unforeseen consequences. Furthermore, there is “no reason to think that the legal issues present in this case are restricted to [Los Angeles] or that the statutory authority given to the Attorney General

25

would differ in another jurisdiction.” See Chicago, 264 F. Supp. 3d at 951 (imposing nationwide relief against Attorney General based on similar access and notice conditions in Byrne JAG grant context).

26 9 Defendants submit an amicus brief from a different case where Los Angeles argues against a nationwide injunction.

27

This Court cannot determine its relevance other than to paint Los Angeles as a walking contradiction. Regardless, Los Angeles argued there that a nationwide injunction could cost it over $1.5 billion and directly impose on local police.

The injunction here only incidentally impacts competitors to the extent they cannot receive bonus points for
28 compliance with the Challenged Considerations. Nothing in this injunction prevents competitors from voluntary

cooperation with federal enforcement or otherwise directly imposes on them.

12

Case 2:17-cv-07215-R-JC Document 75 Filed 04/11/18 Page 13 of 13 Page ID #:2328

1

IT IS HEREBY ORDERED that Plaintiff’s Motion for Summary Judgment is

2 GRANTED. (Dkt. 49).

3

IT IS FURTHER ORDERED that Defendants’ Motion for Summary Judgment is

4 DENIED. (Dkt. 53).

5

IT IS FURTHER ORDERED that Defendants are permanently enjoined from imposing

6 the Challenged Considerations in future CHP grant cycles.

7 Dated: April 11, 2018.

8

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___________________________________

12

MANUEL L. REAL

UNITED STATES DISTRICT JUDGE

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 </s> No. 18-55599
IN THE UNITED STATES COURT OF APPEALS FOR THE NINTH CIRCUIT
CITY OF LOS ANGELES,
Plaintiff-Appellee,
v.
JEFFERSON B. SESSIONS III, et al.
Defendants-Appellants.
On Appeal from the United States District Court for the Central District of California
BRIEF FOR APPELLANTS
CHAD A. READLER Acting Assistant Attorney General
NICOLA T. HANNA United States Attorney
MARK B. STERN DANIEL TENNY KATHERINE TWOMEY ALLEN BRAD HINSHELWOOD
Attorneys, Appellate Staff Civil Division, Room 7256 U.S. Department of Justice 950 Pennsylvania Avenue NW Washington, DC 20530 (202) 514-7823

TABLE OF CONTENTS Page
INTRODUCTION ..................................................................................................................1 STATEMENT OF JURISDICTION ...................................................................................3 STATEMENT OF THE ISSUES..........................................................................................3 PERTINENT STATUTES AND REGULATIONS ........................................................4 STATEMENT OF THE CASE.............................................................................................4
A. Statutory Background........................................................................................4 B. Factual Background & Prior Proceedings......................................................9 SUMMARY OF ARGUMENT........................................................................................... 11 STANDARD OF REVIEW ................................................................................................ 15 ARGUMENT ......................................................................................................................... 16 I. The Challenged Provisions are Permissible Considerations in Evaluating Applications for a Competitive Federal Law Enforcement Grant Program........................................................................................................................ 16 II. The Challenged Provisions Do Not Implicate Spending Clause Concerns ...... 29 CONCLUSION ..................................................................................................................... 34 STATEMENT OF RELATED CASES CERTIFICATE OF COMPLIANCE CERTIFICATE OF SERVICE ADDENDUM

TABLE OF AUTHORITIES

Cases:

Page(s)

Barbour v. Washington Metro. Area Transit Auth., 374 F.3d 1161 (D.C. Cir. 2004) .........................................................................................32

Bennett v. Kentucky Dep’t of Educ., 470 U.S. 656 (1985) .......................................................................................... 15, 30-31, 31

Davis v. Monroe Cty. Bd. of Educ., 526 U.S. 629 (1999) ...................................................................................................... 15, 30

Davis v. United States, 854 F.3d 594 (9th Cir. 2017)..............................................................................................15

Demore v. Kim, 538 U.S. 510 (2003) ...................................................................................................... 20, 28

FCC v. Fox Television Stations, Inc., 556 U.S. 502 (2009) .............................................................................................................29

Gregory v. Ashcroft, 501 U.S. 452 (1991) ...................................................................................................... 15, 32

Independent Acceptance Co. v. California, 204 F.3d 1247 (9th Cir. 2000)............................................................................................28

Jennings v. Rodriguez, 138 S. Ct. 830 (2018)...........................................................................................................20

Kern Cty. Farm Bureau v. Allen, 450 F.3d 1072 (9th Cir. 2006)............................................................................................28

Mayweathers v. Newland, 314 F.3d 1062 (9th Cir. 2002)..................................................................................... 31, 32

Mistretta v. United States, 488 U.S. 361 (1989) .............................................................................................................19

ii

Morton v. Ruiz, 415 U.S. 199 (1974) .............................................................................................................19
Motor Vehicle Mfrs. Ass’n v. State Farm Mut. Auto. Ins. Co., 463 U.S. 29 (1983) ...............................................................................................................29
National Fed’n of Indep. Business v. Sebelius, 567 U.S. 519 (2012) .............................................................................................................33
Pennhurst State Sch. & Hosp. v. Halderman, 451 U.S. 1 (1981) .......................................................................................................... 30, 31
Whitman v. American Trucking Ass’ns, 531 U.S. 457 (2001) ...................................................................................................... 19, 22
Will v. Michigan Dep’t of State Police, 491 U.S. 58 (1989) ...............................................................................................................32
Statutes:
Administrative Procedure Act, 5 U.S.C. § 706(2)(A)....................................................................................................... 9, 10
Justice for Victims of Trafficking Act of 2015, Pub. L. No. 114-22, tit. VI, § 601, 129 Stat. 227 ............................................................22
Violent Crime Control and Law Enforcement Act of 1994, Pub. L. No. 103-322, tit. I, § 10003(a), 108 Stat. 1796: ......................................4, 16, 21 34 U.S.C. § 10381(b) ...........................................................................................4, 11, 16 34 U.S.C. § 10381(b)(1).........................................................................................1, 5, 16 34 U.S.C. § 10381(b)(2).........................................................................................1, 5, 16 34 U.S.C. § 10381(b)(4)........................................................................................... 17, 24 34 U.S.C. § 10381(c)..........................................................................................10, 12, 22 34 U.S.C. § 10381(c)(1) .......................................................................................5, 12, 22 34 U.S.C. § 10381(c)(2) ....................................................................................................5 34 U.S.C. § 10381(c)(2)-(3)..................................................................................... 12, 22 34 U.S.C. § 10381(c)(3) ....................................................................................................5 34 U.S.C. § 10381(f) .........................................................................................................5 34 U.S.C. § 10381(f)-(h)...................................................................................................6 34 U.S.C. § 10381(g).........................................................................................................5 34 U.S.C. § 10381(h) ........................................................................................................5
iii

34 U.S.C. § 10382(c)(4) ........................................................................................... 18, 21 34 U.S.C. § 10382(c)(10)......................................................................13, 17, 23, 24, 33 8 U.S.C. § 1226(c)(1) .................................................................................................................9 8 U.S.C. § 1231(a)(1)(B)............................................................................................................9 8 U.S.C. § 1357(g)......................................................................................................................8 28 U.S.C. § 1292(a)(1) ...............................................................................................................3 28 U.S.C. § 1331 ........................................................................................................................3 Rule: Fed. R. App. P. 4(a)(1)(B) ........................................................................................................3 Legislative Material: H.R. Rep. 103-324 (1993).......................................................................................................17 Other Authorities: FY 2015 Award Methodology, https://cops.usdoj.gov/pdf/2015AwardDocs/chp/ 2015-CHP-Methodology.pdf ............................................................................................18 FY 2017 Performance Budget, Office of Community Oriented Policing Services, https://www.justice.gov/ jmd/file/821491/download ........................................................................................19-20
iv

INTRODUCTION Since the early 1990s, the Office of Community Oriented Policing Services (COPS Office) within the Department of Justice has administered several law enforcement grants, including the COPS Hiring Program (CHP), which provides localities with funds to hire or rehire law enforcement officers “for deployment in community-oriented policing.” 34 U.S.C. § 10381(b)(1), (2). The number of eligible applicants exceeds annual appropriations for the program, and, because the governing statute establishes only a few general guideposts for allocating funds, the COPS Office has exercised broad discretion in establishing funding priorities for the limited federal dollars available. The Office has developed a scoring system which analyzes the robustness of each proposal and which assigns additional points based on policy priorities. For example, the COPS Office has prioritized funding for jurisdictions that suffer “catastrophic events” (such as a terror attack or a mass shooting) and for jurisdictions with high crime rates. The Office has also encouraged jurisdictions to design community-oriented policing programs that fit into one of a number of designated “focus areas” that reflect the Department’s law enforcement priorities. These priorities, of course, change over time, consistent with changes in national law enforcement and public safety needs. For example, in the wake of the 9/11 attacks, “Homeland Security” became a much more pressing federal law enforcement priority, and thus the CHP has included that as a focus area. Likewise, in the wake of tragic school shootings,

school safety is a national law enforcement priority, and thus CHP has included “School Resource Officers” as a focus area. In the wake of high-profile police shootings and follow-on protests, police-community relations is a national law enforcement priority, and thus CHP has included “Building Trust” as a focus area. See infra at 7, 18. None of these focus areas—reflective of Department policy preferences—has ever been the subject of objection by applicants, Congress, or federal courts.
In 2017, the Department included another focus area that is consistent with federal law enforcement priorities, as established by Congress. Namely, CHP included “Illegal Immigration” as a focus area, and also indicated that it would assign additional points to jurisdictions that facilitate the transfer of aliens subject to deportation proceedings to federal custody upon their release from jail.
The district court recognized that the COPS Office necessarily has discretion to establish priorities in order to evaluate competing applications. It nevertheless held that including Illegal Immigration as a focus area exceeds the Office’s statutory authority. The court, however, fundamentally misunderstood the nature of the CHP program. Community-oriented policing is a strategy that can be applied in a wide range of contexts, and all grant applications, regardless of their focus area, must be rooted in the broad principles of community-oriented policing. Nothing in the statute divests the COPS Office of the discretion to prioritize certain law enforcement goals to be achieved through community-oriented policing. Nor does the statute preclude
2

the COPS Office from giving some weight to a jurisdiction’s willingness to assist in an orderly transfer of custody. The decision below would change all that and would, if adopted here, severely curtail the Department of Justice’s longstanding discretion to administer this program.
The district court’s ruling rested on grounds that would seem to invalidate virtually every other discretionary basis the Department has used to administer this program. That constrained interpretation is clearly not what Congress intended, as the statutory text and the Department’s long history administering this program confirm. Nor is it what the Constitution requires, or else every discretionary grant program where Congress fails to explicate every potential basis for prioritizing funding is equally impermissible. The district court’s decision was incorrect on all counts. It should be reversed.
STATEMENT OF JURISDICTION Plaintiff invoked the district court’s jurisdiction under 28 U.S.C. § 1331. On April 11, 2018, the district court granted partial summary judgment on three counts in plaintiff’s complaint and entered a permanent injunction as to those counts. ER 8, 10, 11, 13. The government filed a timely notice of appeal on May 4, 2018. ER 14-15; see Fed. R. App. P. 4(a)(1)(B). This Court has jurisdiction under 28 U.S.C. § 1292(a)(1).
STATEMENT OF THE ISSUES The Department of Justice administers a discretionary law enforcement grant program that provides funds to localities to hire or rehire officers for deployment in
3

community-oriented policing. 34 U.S.C. § 10381(b). Because Congress annually appropriates less in funds than jurisdictions seek under the program and has not laid out specific criteria for selecting applicants, the Department has developed a variety of scoring factors to assess applications. Los Angeles challenges two scoring factors introduced in the fiscal year 2017 grant cycle relating to a jurisdiction’s cooperation with federal efforts to enforce the immigration laws by removing aliens who have committed crimes from the country. The issues presented are:
Whether the district court erred in holding that Department was not acting within its delegated discretion in considering the immigration-related scoring factors.
Whether the district court erred in holding that consideration of immigrationrelated factors contravened the Spending Clause.
PERTINENT STATUTES AND REGULATIONS Pertinent statutes are reproduced in the addendum to this brief.
STATEMENT OF THE CASE A. Statutory Background The Violent Crime Control and Law Enforcement Act of 1994, Pub. L. No. 103-322, tit. I, § 10003(a), 108 Stat. 1796, 1808, provides the Department of Justice with authority to make discretionary grants for a variety of statutory purposes related to public safety and community-oriented policing. See 34 U.S.C. § 10381(b). To administer these grants, the Department has created the Office of Community Oriented Policing Services (COPS Office). The COPS Office manages the
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application process for a variety of grants provided for in the statute, including the COPS Hiring Program (CHP), which provides localities with funds to hire or rehire law enforcement officers “for deployment in community-oriented policing.” Id. § 10381(b)(1), (2). The statute does not define “community-oriented policing.”
The CHP receives applications for more funds than Congress annually appropriates, and the application process is thus competitive. The statute sets forth some parameters for that process. It mandates that jurisdictions in all states receive some funding as long as eligible applications are submitted, see 34 U.S.C. § 10381(f), that available funds be divided equally between large and small jurisdictions, see id. § 10381(h), and that, unless waived, jurisdictions contribute a certain amount of their own funds in addition to the grant money used to hire or rehire an officer funded by the CHP, see id. § 10381(g). The statute also states that the Attorney General may “give preferential consideration” to applications that provide more than the mandatory minimum local contribution to the hiring or rehiring of an officer, see id. § 10381(c)(1), or to applications where the applicant is from a state that has certain laws in place to combat human trafficking, see id. § 10381(c)(2), (3).
Because these factors alone are insufficient to distinguish among the many applicants for CHP funds, the COPS Office has developed a multi-factor weighted scoring system to assess applications on the basis of a “point” score. ER 20-23, ¶¶ 12-19. Applicants are first scored on a variety of individual factors. ER 21, ¶ 15. The scores on the various factors are then grouped into three categories—Fiscal
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Health, Crime, and Community Policing—and the aggregate score in each category is weighted to produce a final score by which jurisdictions are ranked. ER 23, ¶ 20. CHP funds are then distributed according to this ranking and the requirements spelled out in 34 U.S.C. § 10381(f)-(h). ER 23, ¶ 21.
The scoring factors employed in this process are wide-ranging, reflecting the broad purposes of the community-oriented policing program, changing law enforcement needs, and the priorities of the Department of Justice. For example, applicants are required to submit data on local crime statistics, and jurisdictions with higher crime rates receive more points in the scoring process. ER 21, ¶ 16. Similarly, applicants must submit data about their financial condition, and jurisdictions with greater financial need receive additional points. Id. Applicants are likewise scored on the quality of the community-oriented policing plan they submit. Id.
Other factors have been developed in response to law enforcement needs. The COPS Office began providing bonus points to jurisdictions that have experienced a “catastrophic event,” such as a terrorist attack or mass shooting, a decision that reflected concerns that arose when the Department was unable to award a grant to Newtown, Connecticut after it suffered a mass shooting. ER 22, ¶ 18. These bonus points resulted in an award of a CHP grant to San Bernardino, California, the year after a terrorist attack there. Id. In addition, the application accords additional points for adopting specified internal management practices, such as ensuring flexibility in officer shift assignments, assessing employee satisfaction, and using an “early
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intervention system” to identify and assist officers who may be under particular strain. Id.
Since the fiscal year 2011 grant process, the COPS Office has given extra points to applications that promise to use funding to support designated “focus areas.” ER 18, ¶ 7; ER 22, ¶ 18. These focus areas enable the Department to prioritize community-oriented policing in certain areas, and for each focus area, the applicant must explain how its proposal will “incorporate the principles of community oriented policing.” ER 18, ¶ 7. For the fiscal year 2017 CHP, the COPS Office identified nine focus areas. Id. For example, applicants could choose the “Drug Abuse” focus area, offering a proposal that explained how the applicant planned to use community-oriented policing principles “to combat drug use and abuse.” ER 1819, ¶ 8. Similarly, applicants could tailor their plans to use CHP funds to address “Homeland Security Problems,” including “addressing threats against facilities” and developing “criminal intelligence capacity.” Id.
None of these aspects of the application and screening process—the many scoring factors, the several focus areas—are spelled out in the statute. Instead, the COPS Office has long exercised, within the CHP, the discretion that is inherent in discretionary grants. In connection with the fiscal year 2017 CHP applications, the COPS Office included a focus area for “Illegal Immigration.” The CHP application asked jurisdictions selecting this focus area to “specify your focus on partnering with federal law enforcement to combat illegal immigration through information sharing,
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287(g) partnerships [see 8 U.S.C. § 1357(g)], task forces and honoring detainers.” ER 24, ¶ 24. Applicants selecting this focus area, like applicants selecting other focus areas, were required to explain how their proposal would “incorporate the principles of community-oriented policing.” ER 18, ¶ 7. This focus area was designed to facilitate greater cooperation between localities and the federal government in efforts to reduce crime by removing from the country aliens who have committed, or are suspected of committing, criminal offenses. Applicants who selected this focus area, like applicants choosing the “Violent Crime Problems” or “Homeland Security Problems” focus areas, received additional points for that selection. ER 22, ¶ 18.
The COPS Office similarly offered jurisdictions applying for a fiscal year 2017 CHP grant the opportunity to receive bonus points if they certified that they had in place, or would implement, policies designed to assist federal law enforcement authorities by 1) permitting officials from the Department of Homeland Security (DHS) access to the applicant’s correctional or detention facilities to meet with a given detainee and “inquire as to his or her right to be or to remain in the United States,” and 2) providing advance notice to DHS of “the scheduled release date and time of an alien in the jurisdiction’s custody when DHS requests such notice in order to take custody of the alien.” ER 24-25, ¶ 25.
The cooperation envisioned by these two new scoring factors reflects the structure of the Immigration and Nationality Act (INA), which ties certain triggering events in the removal process to an alien’s involvement in state criminal proceedings
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and release from state custody. For example, Congress has mandated that certain aliens who have committed criminal offenses be taken into federal custody pending removal proceedings, but only “when the alien is released” from state custody. 8 U.S.C. § 1226(c)(1). Similarly, with respect to incarcerated aliens subject to a final removal order, the INA establishes a “removal period” of 90 days that begins with the date of the alien’s release. Id. § 1231(a)(1)(B). Many jurisdictions already provide this basic level of cooperation to federal immigration authorities; indeed, a substantial proportion of applicants availed themselves of the bonus points. ER 27, ¶ 33.
B. Factual Background & Prior Proceedings Los Angeles brought this suit in August 2017. As relevant here, the City’s complaint asserted that the new scoring factors—the Illegal Immigration focus area and the bonus points for immigration cooperation—were ultra vires, ran afoul of Spending Clause and Tenth Amendment constraints, and were arbitrary and capricious under the Administrative Procedure Act (APA), 5 U.S.C. § 706(2)(A).1 The district court entered summary judgment for Los Angeles and a permanent injunction barring use of the focus area and bonus points in scoring CHP applications.
1 Los Angeles’s suit also challenged conditions placed on the Edward Byrne Memorial Justice Assistance Grant, an unrelated grant program administered by a different Department of Justice component. Proceedings on those counts are currently in abeyance pending litigation developments in other courts. See Dkt. No. 77.
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On the merits of Los Angeles’s claims, the court held that the COPS Office lacks the statutory authority to use the scoring factors at issue. ER 6. The court first declared that the list of enumerated factors in 34 U.S.C. § 10381(c) that allow the Attorney General to provide certain applicants with preferential treatment “must be read to exclude others” because reading it as nonexclusive would “effectively render[] subsection (c) superfluous.” ER 6-7. At the same time, however, the court recognized that these specific factors did not preclude the Attorney General from exercising discretion to “select applicants with programs that best embody the statutory purpose of the CHP grant.” ER 7. The court nevertheless held that the Department could not award points to applications in the Illegal Immigration area, and also held that the Department could not assign points to jurisdictions that cooperate with the federal government with respect to aliens in state or local custody who are subject to removal proceedings. The court declared its view that cooperation to ensure that aliens subject to removal do not return to the community upon completion of a criminal sentence cannot “improve cooperative efforts” between police and the community, and advances only “policing generally,” not “community policing.” ER 8.
The court further held that the Department had not provided “a ‘reasonable basis’ for imposing” the scoring factors, ER 10, and had therefore acted arbitrarily and capriciously. See 5 U.S.C. § 706(2)(A). The court stated that the Department’s
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rationale—that removing criminals from the community reduces crime and improves public safety—was not “based . . . on any findings or data.” ER 10.
The court also concluded that the scoring factors ran afoul of Spending Clause constraints. The court first held that “Congress did not unambiguously condition receipt of a CHP grant on local compliance with federal authorities.” ER 9. Second, it believed that the scoring factors “are not ‘reasonably related’ to the articulated goal of the COPS program,” which is “about developing partnerships between local authorities and the community.” Id.
Based on these conclusions, the district court entered a permanent injunction barring the Department of Justice from using the scoring factors in future CHP grant cycles. ER 13. The district court did not discuss how, under its holding, any of the other scoring factors or focus areas that have long been a part of the CHP could be upheld.
SUMMARY OF ARGUMENT A. This case concerns the administration of a law enforcement grant program that provides funds to localities to hire or rehire officers for deployment in community-oriented policing. See 34 U.S.C. § 10381(b). Beyond some general guidelines, Congress has left it to the COPS Office of the Department of Justice to establish criteria and priorities for evaluating grants competing for limited federal funds, as Congress does with many other grant programs. For many years, the COPS office has undertaken these discretionary determinations on the basis of a scoring
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system that evaluates the merits of each proposal and also awards additional points based on a variety of factors, including, for example, a district’s crime rate. The COPS Office has also assigned additional points to proposals to advance communityoriented policing in areas of special concern, including Homeland Security and violent crime. Congress has been made aware of the grant evaluation procedures in the Department’s annual budget reports, and we are aware of no instance in which Congress or grant applicants questioned the legality of these procedures.
That changed with the filing of this suit. Los Angeles declared that it did not plan to file an application in the “Illegal Immigration” focus area, which is one of the priority focus areas. It urged that the COPS Office lacked authority to establish this priority and that, indeed, the award of points to community-oriented policing projects in this area would violate the Spending Clause. The City also argued that the COPS Office could not assign extra points to jurisdictions that tell the federal government when they plan to release prisoners subject to federal removal proceedings or grant federal officials access to prisoners to inquire as to their immigration status.
The district court accepted these arguments in a decision that is by turns inconsistent and conclusory. The court noted that one provision of the statute, Section 10381(c), prioritizes jurisdictions that provide greater than 25% matching funds, 34 U.S.C. § 10381(c)(1), or that have certain laws related to human trafficking, id. § 10381(c)(2)-(3). To establish additional priorities, the court declared, would render section 10381(c) “superfluous.” ER 6. Having purported to strike down the
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immigration-related provisions on this ground, however, the district court immediately acknowledged that the statutorily mandated considerations are not, in fact, sufficient to allow the COPS Office to determine which jurisdictions should receive grants. Plainly, the federal government can determine that some areas of community-oriented policing are particularly worthy of limited federal dollars.
The district court was on no firmer ground in then singling out illegal immigration as an impermissible priority area, declaring that a focus on illegal immigration matters has “nothing to do” with community-oriented policing. The court fundamentally misunderstood the purpose of a focus area and the relation of the focus area to the program as a whole. The Illegal Immigration focus area, like the other focus areas, encourages localities to use their community-oriented policing expertise and knowledge of local conditions to propose community-oriented policing programs that will address pressing public safety needs identified by the Department. Choosing this or any other focus area does not relieve an applicant of the burden to demonstrate that its proposed program “incorporate[s] the principles of communityoriented policing.” ER 18, ¶ 7. Regardless of which focus areas they choose, applicants must explain how their proposal will use CHP funds to “reorient the affected law enforcement agency’s mission toward community-oriented policing or enhance its involvement in or commitment to community-oriented policing,” 34 U.S.C. § 10382(c)(10).
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The COPS Office is entitled to select grant applicants with strong proposals in the area of immigration in the same way that it can select applicants with strong proposals in other focus areas, such as homeland security or narcotics. The district court offered no basis whatsoever for its belief that the illegal immigration focus area, unlike every other, is not compatible with a philosophy of community-oriented policing. Similarly, in exercising its broad discretion, the COPS Office is not compelled to disregard the degree to which local jurisdictions provide basic cooperation to federal officials in removing from the community aliens who have committed crimes. The COPS Office was well within its discretion to determine that reducing recidivism is an important law enforcement priority that can be well served though a community-oriented policing strategy. The district court’s conclusion that the scoring factors were arbitrary and capricious rests on the same mistaken premises as its statutory analysis, and ignores the common-sense reasoning that underlies the Department’s determination.
B. The district court’s Spending Clause ruling misapprehends the constitutional limits on federal government grant authority. If, as is the case, the Department acted within its statutory authority in including the challenged provisions, the Constitution offers no basis for setting the provisions aside. Congress is not required to authorize every provision in federal grant programs with a “clear statement.” On the contrary, Congress frequently delegates discretionary authority over distribution of federal funds in Spending Clause legislation to executive branch
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agencies without raising constitutional concerns. There is no requirement that Congress spell out every potential restriction on the use of those funds, so long as it has indicated an intent to restrain their use and delegated authority to an agency to set appropriate criteria. See, e.g., Davis v. Monroe Cty. Bd. of Educ., 526 U.S. 629, 650 (1999); Bennett v. Kentucky Dep’t of Educ., 470 U.S. 656, 669, 672 (1985).
The district court erred in invoking Gregory v. Ashcroft, 501 U.S. 452, 460 (1991), ER 5, in which the Supreme Court required a “clear statement” from Congress before it would assume that Congress intended to “alter the usual constitutional balance between the States and the Federal Government.” Nothing about that “constitutional balance” is at stake here, and the district court was simply wrong to state that the scoring factors “requir[e] state and local participation in a historically federal function.” ER 6. The scoring factors envision only forms of cooperation with federal immigration enforcement already permitted by the INA and the Constitution. They do not override any local law, and localities are free to choose any of the other focus areas, decline to qualify for the bonus points, or refuse to apply for CHP funds in the first place.
STANDARD OF REVIEW The district court’s grant of summary judgment, including its underlying legal conclusions, is reviewed de novo. Davis v. United States, 854 F.3d 594, 598 (9th Cir. 2017).
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ARGUMENT I. The Challenged Provisions are Permissible Considerations in
Evaluating Applications for a Competitive Federal Law Enforcement Grant Program A. Under the Violent Crime Control and Law Enforcement Act of 1994, Pub. L. No. 103-322, tit. I, § 10003(a), 108 Stat. at 1808, the Department of Justice is charged with administering law enforcement grant programs related to public safety and community-oriented policing, including the COPS Hiring Program (CHP), which is designed to provide localities with funds to hire or rehire law enforcement officers “for deployment in community-oriented policing.” The COPS Office must exercise significant discretion in administering the CHP, as many agencies can and must do when they receive grant appropriations with broad statutory language. As with many such grants, the governing statute provides minimal guidance for distributing funds beyond requirements that are chiefly aimed at ensuring a broad geographic distribution of funds. Because the broad statutory language constitutes a grant of discretion to the agency, and because the number of grant proposals that satisfy the statute’s eligibility criteria generally exceed the federal funds available, the Department can and must establish priorities for evaluating grant applications. In doing so, the Department considers the specifics of each proposal as they relate to the broad goals of community-oriented policing. The COPS Office has explained that community-oriented policing reflects a “philosophy” of policing that “support[s] the systematic use of partnerships and problem-solving techniques to
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proactively address the immediate conditions that give rise to public safety issues.” ER 53.2
The statute itself reflects the broad nature of community-oriented policing as a philosophy of law enforcement that can be applied in virtually all law-enforcement areas, including homeland security. Section 10381(b) provides an expansive list of purposes for which COPS grants may be used to increase the application of community-oriented policing strategies, including “pay[ing] for officers hired to perform intelligence, anti-terror, or homeland security duties.” 34 U.S.C. § 10381(b)(4). For this area, like all the others in § 10381(b), Congress required applicants to “explain how the grant will be utilized to reorient the affected law enforcement agency’s mission toward community-oriented policing or enhance its involvement in or commitment to community-oriented policing,” id. § 10382(c)(10). Congress thus recognized that homeland security concerns, including immigration, can be addressed through community-oriented policing. Similarly, the Department is instructed to consider the extent to which applicants have “identif[ied] related governmental and community initiatives which complement or will be coordinated
2 The statute does not define community-oriented policing, but the concept is generally a broad one, as noted in the House Report accompanying the legislation. See H.R. Rep. 103-324 at 8-9 (1993) (“anticipat[ing] and prevent[ing] crime by use of community-oriented, problem solving techniques” and “tailoring solutions, based on thoughtful, in-depth analysis, to unique neighborhood crime and disorder problems”).
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with the proposal,” id. § 10382(c)(4), which would include cooperation with federal immigration enforcement.
In fulfilling its responsibility to determine which community-oriented policing programs most deserve federal funding, the COPS Office has for many years used a point system to assess applications. The COPS Office scores applicants based on the quality of their community policing plans, ER 21, ¶ 16, and also awards additional points for a range of other factors. For example, the Office awards additional points to jurisdictions with high crime rates, and to jurisdictions that have experienced a “catastrophic event” such as a terrorist attack or mass shooting. Id. Since the FY 2011 grant cycle, the Department has also assigned extra points to jurisdictions that design their community-oriented policing programs to fit into one of a number of designated “focus areas” that reflect the Department’s law enforcement priorities. ER 18, ¶ 7; ER 22, ¶ 18. In FY 2015, for example, the Department awarded additional consideration to applicants who chose “Building Trust,” “Homeland Security,” “Homicide and Gun Violence,” and “School Resource Officers” as their focus areas. See FY 2015 Award Methodology at 1-2.3
There should be no serious dispute that the COPS Office is entitled to set priorities in this fashion. Congress has not allocated sufficient funding for all eligible applicants, nor has Congress provided direction sufficient to select the applicants who
3 https://cops.usdoj.gov/pdf/2015AwardDocs/chp/2015-CHPMethodology.pdf
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will receive funding. Instead, Congress has delegated broad authority to the Department to establish the contours of the CHP. As the Supreme Court has explained, “[t]he power of an administrative agency to administer a congressionally created and funded program necessarily requires the formulation of policy . . . to fill any gap left, implicitly or explicitly, by Congress.” Morton v. Ruiz, 415 U.S. 199, 231 (1974). And, as is the case here, the gaps left to the filled in many grant programs can be broad—as they are often established by sparse statutes or no more than a few words in an appropriations line item—but such broad grants of policymaking authority to agencies are common and permissible. See Whitman v. American Trucking Ass’ns, 531 U.S. 457, 474-75 (2001) (“[W]e have ‘almost never felt qualified to secondguess Congress regarding the permissible degree of policy judgment that can be left to those executing or applying the law.’”) (quoting Mistretta v. United States, 488 U.S. 361, 416 (1989) (Scalia, J., dissenting)).
The COPS Office has made Congress aware of its priorities in evaluating applications, including its established practice of giving special consideration to applications that focus on law enforcement areas of particular concern to the federal government. See, e.g., FY 2017 Performance Budget, Office of Community Oriented Policing Services, at 3 (noting the COPS Office’s practice of having grantees select “problem/priority area(s) on which their COPS-funded community policing officers
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will be focused”).4 Congress has annually appropriated money for the CHP and has never suggested that the grant evaluation process departs from the statutory framework.
B. Congress has clearly identified controlling illegal immigration and removing aliens who commit crimes as important federal law enforcement priorities. See Demore v. Kim, 538 U.S. 510, 517-19 (2003); see also Jennings v. Rodriguez, 138 S. Ct. 830, 846-47 (2018). Accordingly, as with other important federal law enforcement priorities, the COPS Office has included illegal immigration as one of several focus areas, and has also announced that it would assign extra points to applicants that cooperate with the federal government in particular ways to facilitate the removal of criminals.
Of course, any applicant, including applicants that seek funding for an application in the Illegal Immigration area, must provide an eligible communityoriented policing plan, and use the funds for purposes permissible under the statute. There can therefore be no dispute that the COPS Office is distributing funds in a manner contemplated by Congress. Thus, the only issue in this case is whether the district court properly held that the COPS Office’s discretion in selecting among eligible applicants does not include consideration of an applicant’s cooperation with federal immigration enforcement efforts.
4 https://www.justice.gov/jmd/file/821491/download. 20

It should be beyond dispute that the Department can consider contributions to immigration enforcement efforts in connection with these law enforcement grants. Particularly in light of the high rate of recividism among criminal aliens, consideration of coordination with federal immigration authorities who seek to detain criminal aliens instead of allowing them to return to the community is plainly consonant with a program designed “to increase police presence, to expand and improve cooperation efforts between law enforcement agencies and members of the community to address crime and disorder problems, and otherwise to enhance public safety.” Violent Crime Control and Law Enforcement Act of 1994, Pub. L. No. 103-322, tit. I, § 10003(a), 108 Stat. at 1808. And Congress specified that applicants must “identify related governmental and community initiatives which complement or will be coordinated with the proposal.” 34 U.S.C. § 10382(c)(4). If an applicant identifies immigration enforcement as an initiative with which it is coordinating, the COPS Office is entitled to consider that statutory factor.
C. Los Angeles nevertheless challenges the inclusion of illegal immigration as a focus area, as well as the award of extra points to jurisdictions that cooperate with the federal government’s efforts to take custody of aliens subject to removal proceedings upon their release from jail. The City did not challenge the use of other focus areas, and it has not suggested that the Department is generally barred from giving special consideration to grant proposals in certain areas.
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The district court offered no sound basis for singling out illegal immigration as an impermissible focus area. As an initial matter, the court plainly erred in stating that the inclusion of certain considerations in 34 U.S.C. § 10381(c) precluded the Department from establishing additional priorities. The court declared that “the enumeration of discretionary factors in this context must be read to exclude others,” and that reading the statute to authorize the Attorney General to consider additional factors “renders subsection (c) superfluous.” ER 6-7. Taken at face value, this reasoning would appear to set aside the longstanding scoring system and would leave the agency no mechanism for selecting among eligible applicants. Section 10381(c) simply prioritizes jurisdictions that provide greater than 25% matching funds, 34 U.S.C. § 10381(c)(1), or that have certain laws related to human trafficking, id. § 10381(c)(2)-(3). These considerations alone would not be sufficient to allocate the limited CHP funding among applicants in a meaningful way, and limiting the agency to these considerations would in no respect further Congress’s purpose in creating the program.
Further, Section 10381(c)(2) and (3) were not added to the statute until 2015. See Justice for Victims of Trafficking Act of 2015, Pub. L. No. 114-22, tit. VI, § 601, 129 Stat. 227, 259. Under the district court’s reasoning, these additions had the effect of eliminating the COPS Office’s 20-year practice for scoring CHP applications. Presumably, if Congress meant to eliminate a practice an agency had engaged in for 20 years, it would have used statutory language more clear than “the Attorney General
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may give preferential consideration, where feasible” to the considerations described in Section 10381(c). See Whitman, 531 U.S. at 468 (“Congress . . . does not alter the fundamental details of a regulatory scheme in vague terms or ancillary provisions—it does not, one might say, hide elephants in mouseholes.”).
Indeed, the district court itself recognized that it could not properly invalidate the challenged provisions on this basis, acknowledging that the COPS Office has the authority to select “applicants with programs that best embody the statutory purpose of the CHP grant.” ER 7. The court nevertheless proceeded to hold that the Department could not award extra points to grant applications in the illegal immigration area.
The court’s reasoning fundamentally misunderstands the means by which the COPS Office assesses grant applications. The district court noted that, in the section of the statute specifying the required contents of an application, Congress specified that “applicants must ‘explain how the grant will be utilized to reorient the [applicant’s] mission toward community-oriented policing or enhance its involvement in or commitment to community-oriented policing.’” ER 7 (quoting 34 U.S.C. § 10382(c)(10)) (brackets in original). The court then declared that the immigration focus area does not advance community policing goals, apparently believing that the focus area did not require a connection to community policing (as distinct from “policing generally”) and implied “limitless discretion to select grant awardees in ways not even tangentially related to community policing.” ER 8.
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This conclusion is inconsistent with the statute, which recognizes that the philosophy of community-oriented policing can be applied across a host of areas, including to homeland security concerns like immigration. Section 10381(b) demonstrates Congress’s belief that deploying officers in “intelligence, anti-terror, or homeland security duties,” 34 U.S.C. § 10381(b)(4), is a purpose that can be served by community-oriented policing strategies, and Congress mandated that applicants for funds under § 10381(b) demonstrate that they will use the money for purposes of “community-oriented policing,” id. § 10382(c)(10). Consistent with this statutory command, all CHP grant applications, regardless of their focus area, must propose to use the funds for community policing. The focus area merely describes an area in which the community policing efforts will be undertaken, whether it be drug abuse, “Homeland Security Problems,” or problems in enforcing the immigration laws. The Illegal Immigration focus area, like other focus areas, encourages localities to use their community policing expertise and knowledge of local conditions to advance proposals for using community policing principles to combat pressing public safety needs identified by the Department. If an applicant chooses this focus area, its proposal— like any other—“must incorporate the principles of community-oriented policing.” ER 18, ¶ 7.
The application itself makes this abundantly clear, emphasizing that the “COPS Office grants must be used to initiate or enhance community policing activities” and stating that applications will be reviewed “to ensure that . . . grant-funded officers . . .
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will initiate or enhance your agency’s capacity to implement community policing strategies and approaches.” ER 69. Question 6 asks the applicant to identify the “problem/focus area that will be addressed by the officers requested in this application.” ER 70. The application explains that “[i]dentifying the specific problem/focus area and partnerships that your agency plans to focus on is important to ensure that you satisfy the requirements for COPS Office funding under this program” and “to ensure that . . . grant funded officers . . . will initiate or enhance your agency’s capacity to implement community policing strategies and approaches.” ER 69. Applicants are asked about their consultations with these prospective partners in developing their community policing plan, ER 82, as well as about the level of “community support” for the proposed strategy and the strategy’s “impact [on] the other components of the criminal justice system” in the jurisdiction, ER 83.
The 2017 COPS Hiring Program Application Guide elaborates and further makes clear that funds must be used for officers engaged in community-oriented policing in whatever focus area the applicant chooses. It explains that in Question 6 the applicant should identify the “community problem/focus area that you wish to address with COPS Office funding” and that “[a]t any time during your award you need to be prepared to demonstrate how the recipient funds were specifically used to enhance or initiate community policing activities according to your community policing strategy.” ER 269. The guide likewise describes Illegal Immigration as a potential “focus area of [the applicant’s] community policing strategies.” ER 270.
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Indeed, only one of the 30 successful applicants in the group in which Los Angeles’s application was considered (large jurisdictions) chose that focus area. ER 26-27, ¶ 31; ER 28, ¶ 35.
The district court was thus quite wrong in its apparent assumption that applications in the illegal immigration focus area need not satisfy the criteria for community-oriented policing that are at the heart of the program: the Department is not statutorily precluded from awarding a grant on the basis of an application that satisfies the criteria for community-oriented policing merely because its proposal has to do with illegal immigration. On the district court’s reasoning, can applicants still tailor their plans to use CHP funds to address “Homeland Security Problems,” including “addressing threats against facilities” and developing “criminal intelligence capacity”? See ER 19, ¶ 8. Can the COPS Office still award points to jurisdictions recovering from a catastrophic events or to jurisdictions with high crime rates? The district court did not say, but it is difficult to posit a cogent legal distinction between the Illegal Immigration focus area and any of the others that have long been included, without objection, in the CHP. As a policy matter, one focus area might be preferred over another—but that is a question for the policymaking agency, not a federal district court.
In this facial challenge to the application of the scoring system, there is no basis for presuming that the COPS Office will act contrary to its own guidelines and award grants to applicants that do not satisfy the basic requirements of the program.
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Instead, the scoring system serves to select among eligible applicants, including those applicants who seek to apply community-oriented policing in connection with immigration enforcement.
D. The district court likewise offered no reason for concluding that no points could be awarded for immigration enforcement cooperation. In distributing scarce federal funds, the Department is not precluded from assigning additional points to jurisdictions that cooperate with, and do not thwart, federal immigration enforcement. The minimal cooperation involved in these circumstances helps to ensure that criminals subject to removal proceedings do not reoffend in the United States. Los Angeles has no basis for insisting that the Department cannot take its refusal to provide a basic level of cooperation into account when considering whether to award discretionary federal funds aimed at building cooperative relationships in the law enforcement context. The federal government, in awarding law enforcement grants, is not bound to give equal preference to jurisdictions that seek to impair federal law enforcement and jurisdictions that provide a minimal level of cooperation. On the City’s theory, the federal government would be unable to consider a jurisdiction’s refusal to notify the federal government when it arrests individuals who are subject to federal criminal warrants. Nothing suggests that Congress required the Department to treat applicants that deliberately refuse to provide basic cooperation with federal authorities on par with other applicants when distributing a discretionary law enforcement grant.
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E. The district court’s conclusion that the use of the scoring factors did not satisfy the APA rests on an equally infirm foundation. The court provided no authority for the proposition that determinations about how to exercise discretionary grantmaking authority must be accompanied by “findings or data,” ER 10, and we are aware of none. So long as a consideration is permitted by Congress, there is no basis for a court to second-guess the Department’s exercise of discretion. There is no plausible ground, in particular, for requiring “findings or data” to support the selection of focus areas, which is an inherently policy-based judgment about which areas a federal agency should prioritize.
Even if some further arbitrary and capricious review were warranted, the scoring factors here satisfy that “highly deferential” standard. Kern Cty. Farm Bureau v. Allen, 450 F.3d 1072, 1076 (9th Cir. 2006) (quoting Independent Acceptance Co. v. California, 204 F.3d 1247, 1251 (9th Cir. 2000)). Congress established the CHP to promote public safety and community-oriented policing, and thus intended the Department to consider those aims in awarding grants. Facilitating federal access to aliens who have violated immigration law and who have violated, or are suspected of violating, state or local criminal laws promotes these interests. As the Supreme Court has recognized, Congress made substantial reforms to the INA precisely because of concerns that “deportable criminal aliens who remained in the United States often committed more crimes before being removed.” Demore, 538 U.S. at 518. The Department’s rationale for the bonus points scoring factor mirrored this
28

Congressional judgment; as the Department explained, the scoring factor rewards jurisdictions that assist efforts to “remove dangerous criminals from our communities.” ER 10.
The district court did not explain its disagreement with this straightforward logic, stating only that the Department had not offered “findings or data” to back up the conclusion. At bottom, the court’s APA analysis reflects the same mistaken premises as its statutory analysis. It requires only common sense to recognize that aliens who have been removed cannot reoffend in the United States, and a commonsense explanation is all that is required to establish the “reasonable basis” demanded by the APA. See FCC v. Fox Television Stations, Inc., 556 U.S. 502, 521 (2009). The district court’s contrary conclusion improperly “substitute[d] its judgment for that of the agency.” Motor Vehicle Mfrs. Ass’n v. State Farm Mut. Auto. Ins. Co., 463 U.S. 29, 43 (1983). II. The Challenged Provisions Do Not Implicate Spending Clause
Concerns As we have demonstrated above, the challenged considerations properly implement the grant program and fall within the Department’s statutory authority. There is no basis for concluding in such circumstances that the Department has violated Spending Clause principles. In any event, on its own terms, the district court’s analysis fundamentally misapprehends relevant doctrine.
29

The district court repeatedly suggested that to pass constitutional muster, scoring factors must be imposed by Congress rather than the Department. ER 5-6, 9. To the extent that the court meant this as a restatement of its view that the statutory scheme did not authorize the scoring factors, that view was wrong for the reasons already discussed.
To the extent the court believed that Congress was under an obligation to provide a “clear statement” of each and every scoring factor that the Department could consider in implementing the CHP, there is no such rule. Congress frequently delegates discretionary authority over distribution of federal funds in Spending Clause legislation to executive branch agencies without raising constitutional concerns. Spending Clause constraints operate in part to ensure that federal funds are distributed to recipients that are able “to exercise their choice knowingly, cognizant of the consequences of their participation.” Pennhurst State Sch. & Hosp. v. Halderman, 451 U.S. 1, 17 (1981). As the Supreme Court has held, as long as a statute makes clear that an agency enjoys discretion to set the terms of a funding program, and the agency specifies the criteria to permit localities to make an informed decision, no notice concerns arise. For example, in Davis v. Monroe County Board of Education, 526 U.S. 629 (1999), the Supreme Court noted its rejection of a “claim of insufficient notice under Pennhurst where [the] statute made it clear that there were some conditions placed on receipt of federal funds,” and observed that “Congress need not ‘specifically identif[y] and proscrib[e]’ each condition in the legislation.” Id. at 650 (quoting Bennett v.
30

Kentucky Dep’t of Educ., 470 U.S. 656, 666 (1985)). As a result, this Court has correctly observed that so long as Congress has expressed an “intention to impose a condition,” no notice concerns arise even if the statutory language is “largely indeterminate.” Mayweathers v. Newland, 314 F.3d 1062, 1067 (9th Cir. 2002) (emphasis in original). The Spending Clause does not obligate Congress to spell out each and every detail attached to federal funds; the relevant question for Spending Clause purposes is simply whether Congress has, through its delegation of authority to an agency, made clear that the agency has the discretion to develop criteria for distribution of the funds.
These principles make clear that the solution to notice concerns is to ensure that the agency provided localities with sufficient notice to ensure that they could “exercise their choice” to apply for or accept funds “knowingly, cognizant of the consequences of their participation.” Pennhurst, 451 U.S. at 17; see Bennett, 470 U.S. at 669, 672 (observing that “the Federal Government simply could not prospectively resolve every possible ambiguity” in a grant program and advising recipients to seek “clarification” from the administering agency). The district court did not conclude that it was unclear whether the scoring factors at issue here would be used or what was expected to receive points under each factor, and Los Angeles does not suggest otherwise. And, as noted, to apply for the grant, the City need not agree to take any action with respect to immigration law.
31

The district court was also wrong to suggest that the scoring factors were insufficiently related to the purposes of the grant program for Spending Clause purposes. ER 9-10. As we have demonstrated, the scoring factors here are sufficiently related to community-oriented policing to qualify as a legitimate exercise of the Department’s delegated discretion under the CHP statute. No further showing is required to meet the relatedness standard of the Spending Clause, which requires only “some relationship to the purpose of the federal spending.” Mayweathers, 314 F.3d at 1067; see Barbour v. Washington Metro. Area Transit Auth., 374 F.3d 1161, 1168 (D.C. Cir. 2004) (noting that the Supreme Court has never “overturned Spending Clause legislation on relatedness grounds”).
The district court was equally wrong to suggest that federalism concerns make a clear statement necessary in this context on the theory that the scoring factors “alter the ‘usual constitutional balance between the States and the Federal Government.’” Gregory v. Ashcroft, 501 U.S. 452, 460 (1991) (quoting Will v. Michigan Dep’t of State Police, 491 U.S. 58, 65 (1989)). Gregory addressed claims that federal law invalidated a state constitutional provision dictating a retirement age for judges. Id. at 455-56. Gregory premised its expectation of a clear statement on its concerns about “overrid[ing]” a state constitutional provision that affected not simply “an area traditionally regulated by the States,” but “a decision of the most fundamental sort for a sovereign entity.” Id. at 460.
32

Nothing comparable is at stake here. The scoring factors do not override state and local law in any respect, and there is no question that Spending Clause programs may be used to “induce the States to adopt policies that the Federal Government could not itself impose.” National Fed’n of Indep. Business v. Sebelius, 567 U.S. 519, 537 (2012). Nor do the scoring factors “requir[e] state and local participation in a historically federal function.” ER 6. Localities are under no obligation to choose the Illegal Immigration focus area or attempt to qualify for the bonus points, or even to apply for CHP funds in the first place. Optional scoring factors that reward applicants for providing cooperation they already may provide to federal officials consistent with the INA and the Constitution do not “alter the constitutional balance” at all.
The district court was equally wrong to declare that a clear statement is required because the CHP affects a jurisdiction’s “police power.” ER 5. Of course, a central purpose of the CHP is to create incentives for jurisdictions to change how they exercise their police power by distributing federal funds to jurisdictions that agree to “reorient” their law enforcement “mission toward community-oriented policing” or to “enhance” their “involvement in or commitment to community-oriented policing.” 34 U.S.C. § 10382(c)(10). Despite this fact, the district court did not apply its own purported clear statement rule; to the contrary, the court recognized that the Department must have discretion to consider which applicants “best embody” this statutory purpose, ER 7, even though Congress has not defined community-oriented
33

policing or spelled out a scoring rubric for the Department. The Department’s
delegated discretion necessarily includes the ability to develop factors, like the ones at
issue here, related to the purposes of the CHP; no “clear statement” of those factors
in the statute is necessary on the district court’s own terms.
CONCLUSION
For the foregoing reasons, the judgment of the district court should be
reversed.
Respectfully submitted,
CHAD A. READLER Acting Assistant Attorney General
NICOLA T. HANNA United States Attorney
MARK B. STERN DANIEL TENNY KATHERINE TWOMEY ALLEN
s/ Brad Hinshelwood BRAD HINSHELWOOD
Attorneys, Appellate Staff Civil Division, Room 7256 U.S. Department of Justice 950 Pennsylvania Avenue NW Washington, DC 20530 (202) 514-7823 bradley.a.hinshelwood@usdoj.gov
June 2018
34

STATEMENT OF RELATED CASES Pursuant to Ninth Circuit Rule 28-2.6, appellants state that they know of no
related case pending in this Court.
s/ Brad Hinshelwood Brad Hinshelwood

CERTIFICATE OF COMPLIANCE This brief complies with the type-volume limit of Federal Rule of Appellate Procedure 32(a)(7)(B) because it contains 8,063 words. This brief also complies with the typeface and type-style requirements of Federal Rule of Appellate Procedure 32(a)(5)-(6) because it was prepared using Microsoft Word 2013 in Garamond 14point font, a proportionally spaced typeface.
s/ Brad Hinshelwood Brad Hinshelwood

CERTIFICATE OF SERVICE I hereby certify that on June 1, 2018, I electronically filed the foregoing brief with the Clerk of the Court for the United States Court of Appeals for the Ninth Circuit by using the appellate CM/ECF system. Participants in the case are registered CM/ECF users, and service will be accomplished by the appellate CM/ECF system.
s/ Brad Hinshelwood Brad Hinshelwood

ADDENDUM

TABLE OF CONTENTS 34 U.S.C. § 10381(a)-(c).........................................................................................................A1 34 U.S.C. § 10382 ...................................................................................................................A5

34 U.S.C. § 10381(a)-(c). Authority to make public safety and community policing grants
(a) Grant authorization
The Attorney General shall carry out a single grant program under which the Attorney General makes grants to States, units of local government, Indian tribal governments, other public and private entities, and multi-jurisdictional or regional consortia for the purposes described in subsection (b).
(b) Uses of grant amounts
The purposes for which grants made under subsection (a) may be made are--
(1) to rehire law enforcement officers who have been laid off as a result of State, tribal, or local budget reductions for deployment in community-oriented policing;
(2) to hire and train new, additional career law enforcement officers for deployment in community-oriented policing across the Nation, including by prioritizing the hiring and training of veterans (as defined in section 101 of Title 38);
(3) to procure equipment, technology, or support systems, or pay overtime, to increase the number of officers deployed in community- oriented policing;
(4) to award grants to pay for offices hired to perform intelligence, anti-terror, or homeland security duties;
(5) to increase the number of law enforcement officers involved in activities that are focused on interaction with members of the community on proactive crime control and prevention by redeploying officers to such activities;
(6) to provide specialized training to law enforcement officers to enhance their conflict resolution, mediation, problem solving, service, and other skills needed to work in partnership with members of the community;
(7) to increase police participation in multidisciplinary early intervention teams;
(8) to develop new technologies, including interoperable communications technologies, modernized criminal record technology, and forensic technology, to assist State, tribal, and local law enforcement agencies in reorienting the emphasis of their activities from reacting to crime to preventing crime and to train law enforcement officers to use such technologies;
(9) to develop and implement innovative programs to permit members of the community to assist State, tribal, and local law enforcement agencies in the prevention of crime in the community, such as a citizens’ police academy,
A1

including programs designed to increase the level of access to the criminal justice system enjoyed by victims, witnesses, and ordinary citizens by establishing decentralized satellite offices (including video facilities) of principal criminal courts buildings;
(10) to establish innovative programs to reduce, and keep to a minimum, the amount of time that law enforcement officers must be away from the community while awaiting court appearances;
(11) to establish and implement innovative programs to increase and enhance proactive crime control and prevention programs involving law enforcement officers and young persons in the community;
(12) to establish school-based partnerships between local law enforcement agencies and local school systems by using school resource officers who operate in and around elementary and secondary schools to combat school-related crime and disorder problems, gangs, and drug activities;
(13) to develop and establish new administrative and managerial systems to facilitate the adoption of community-oriented policing as an organization-wide philosophy;
(14) to assist a State or Indian tribe in enforcing a law throughout the State or tribal community that requires that a convicted sex offender register his or her address with a State, tribal, or local law enforcement agency and be subject to criminal prosecution for failure to comply;
(15) to establish, implement, and coordinate crime prevention and control programs (involving law enforcement officers working with community members) with other Federal programs that serve the community and community members to better address the comprehensive needs of the community and its members;
(16) to support the purchase by a law enforcement agency of no more than 1 service weapon per officer, upon hiring for deployment in community-oriented policing or, if necessary, upon existing officers' initial redeployment to community-oriented policing;
(17) to participate in nationally recognized active shooter training programs that offer scenario-based, integrated response courses designed to counter active shooter threats or acts of terrorism against individuals or facilities;
(18) to provide specialized training to law enforcement officers to--
(A) recognize individuals who have a mental illness; and
(B) properly interact with individuals who have a mental illness, including strategies for verbal de-escalation of crises;
A2

(19) to establish collaborative programs that enhance the ability of law enforcement agencies to address the mental health, behavioral, and substance abuse problems of individuals encountered by law enforcement officers in the line of duty;
(20) to provide specialized training to corrections officers to recognize individuals who have a mental illness;
(21) to enhance the ability of corrections officers to address the mental health of individuals under the care and custody of jails and prisons, including specialized training and strategies for verbal de-escalation of crises;
(22) to permit tribal governments receiving direct law enforcement services from the Bureau of Indian Affairs to access the program under this section for use in accordance with paragraphs (1) through (21); and
(23) to establish peer mentoring mental health and wellness pilot programs within State, tribal, and local law enforcement agencies.
(c) Preferential consideration of applications for certain grants
In awarding grants under this subchapter, the Attorney General may give preferential consideration, where feasible, to an application--
(1) for hiring and rehiring additional career law enforcement officers that involves a non-Federal contribution exceeding the 25 percent minimum under subsection (g);
(2) from an applicant in a State that has in effect a law that--
(A) treats a minor who has engaged in, or has attempted to engage in, a commercial sex act as a victim of a severe form of trafficking in persons;
(B) discourages or prohibits the charging or prosecution of an individual described in subparagraph (A) for a prostitution or sex trafficking offense, based on the conduct described in subparagraph (A); and
(C) encourages the diversion of an individual described in subparagraph (A) to appropriate service providers, including child welfare services, victim treatment programs, child advocacy centers, rape crisis centers, or other social services; or
(3) from an applicant in a State that has in effect a law--
A3

(A) that-(i) provides a process by which an individual who is a human trafficking survivor can move to vacate any arrest or conviction records for a nonviolent offense committed as a direct result of human trafficking, including prostitution or lewdness; (ii) establishes a rebuttable presumption that any arrest or conviction of an individual for an offense associated with human trafficking is a result of being trafficked, if the individual-(I) is a person granted nonimmigrant status pursuant to section 1101(a)(15)(T)(i) of Title 8; (II) is the subject of a certification by the Secretary of Health and Human Services under section 7105(b)(1)(E) of Title 22; or (III) has other similar documentation of trafficking, which has been issued by a Federal, State, or local agency; and (iii) protects the identity of individuals who are human trafficking survivors in public and court records; and
(B) that does not require an individual who is a human trafficking survivor to provide official documentation as described in subclause (I), (II), or (III) of subparagraph (A)(ii) in order to receive protection under the law.
A4

34 U.S.C. § 10382. Applications (a) In General In awarding grants under this be made under this subchapter unless an application has been submitted to, and approved by, the Attorney General.
(b) Application An application for a grant under this subchapter shall be submitted in such form, and contain such information, as the Attorney General may prescribe by regulation or guidelines.
(c) Contents In accordance with the regulations or guidelines established by the Attorney General, each application for a grant under this subchapter shall--
(1) include a long-term strategy and detailed implementation plan that reflects consultation with community groups and appropriate private and public agencies; (2) demonstrate a specific public safety need; (3) explain the applicant’s inability to address the need without Federal assistance; (4) identify related governmental and community initiatives which complement or will be coordinated with the proposal; (5) certify that there has been appropriate coordination with all affected agencies; (6) outline the initial and ongoing level of community support for implementing the proposal including financial and in-kind contributions or other tangible commitments; (7) specify plans for obtaining necessary support and continuing the proposed program, project, or activity following the conclusion of Federal support; (8) if the application is for a grant for hiring or rehiring additional career law enforcement officers, specify plans for the assumption by the applicant of a progressively larger share of the cost in the course of time, looking toward the continuation of the increased hiring level using State or local sources of funding following the conclusion of Federal support; (9) assess the impact, if any, of the increase in police resources on other components of the criminal justice system;
A5

(10) explain how the grant will be utilized to reorient the affected law enforcement agency's mission toward community-oriented policing or enhance its involvement in or commitment to community-oriented policing; and (11) provide assurances that the applicant will, to the extent practicable, seek, recruit, and hire members of racial and ethnic minority groups and women in order to increase their ranks within the sworn positions in the law enforcement agency. (d) Special provisions (1) Small jurisdictions Notwithstanding any other provision of this subchapter, in relation to applications under this subchapter of units of local government or law enforcement agencies having jurisdiction over areas with populations of less than 50,000, the Attorney General may waive 1 or more of the requirements of subsection (c) and may otherwise make special provisions to facilitate the expedited submission, processing, and approval of such applications. (2) Small grant amount Notwithstanding any other provision of this subchapter, in relation to applications under section 10381(b) of this title for grants of less than $1,000,000, the Attorney General may waive 1 or more of the requirements of subsection (c) and may otherwise make special provisions to facilitate the expedited submission, processing, and approval of such applications.
A6

 </s> 18-55599

IN THE UNITED STATES COURT OF APPEALS FOR THE NINTH CIRCUIT

CITY OF LOS ANGELES, et al.,
Plaintiff-Appellee, v.
JEFFERSON B. SESSIONS III, Attorney General of the United States, et al.,
Defendants-Appellants.

On Appeal from the United States District Court for the Central District of California, No. 17-cv-7215 Hon. Manuel L. Real

BRIEF OF AMICI CURIAE CURRENT AND FORMER PROSECUTORS AND LAW ENFORCEMENT LEADERS IN SUPPORT OF PLAINTIFF-APPELLEE AND FOR AFFIRMANCE

Matthew J. Piers Chirag G. Badlani Caryn C. Lederer HUGHES SOCOL PIERS RESNICK
& DYM, LTD. 70 West Madison St., Suite 4000 Chicago, IL 60602
Counsel for Amici Curiae

Mary B. McCord Joshua A. Geltzer Daniel B. Rice Institute for Constitutional Advocacy
and Protection Georgetown University Law Center 600 New Jersey Avenue NW Washington, DC 20001

Table of Contents TABLE OF AUTHORITIES ..............................................................................................ii INTEREST AND IDENTITY OF AMICI CURIAE .................................................... 1 INTRODUCTION .............................................................................................................. 3 ARGUMENT ........................................................................................................................ 5
I. Trust and Respect Between Communities and Law Enforcement Officers Are Essential to Public Safety and Are Thwarted When Victims and Witnesses Fear Deportation Consequences of Cooperating. .......................... 5
II. Policies Limiting Local and State Involvement in Federal Immigration Enforcement Are Critical to Building and Maintaining Trust Between the Community and Law Enforcement While Preserving Local Resources. ..... 15
CONCLUSION ................................................................................................................... 18 CERTIFICATE OF SERVICE ......................................................................................... 20
i

Table of Authorities
Cases
City of Philadelphia v. Sessions, No. CV17-3894, 2018 WL 2725503 (E.D. Pa. June 6, 2018) .................................................................................................................................. 8
Melendres v. Arpaio, 695 F.3d 990 (9th Cir. 2012) .............................................................. 16
Statutes
Cal. Gov’t Code § 7284.6(a)(1)(B) ............................................................................... 15, 16
Or. Rev. Stat. Ann. § 181A.820 ............................................................................................ 4
Regulations
C.F.R. § 287.7........................................................................................................................ 15
Other Authorities
Nawal H. Ammar et al., Calls to Police and Police Response: A Case Study of Latina Immigrant Women in the USA, 7 Int’l J. Police Sci. & Mgmt. 230 (2005) .................. 15
Devlin Barrett, DHS: Immigration Agents May Arrest Crime Victims, Witnesses at Courthouses, Wash. Post, Apr. 4, 2017, https://www.washingtonpost.com/ world/national-security/dhs-immigration-agents-may-arrest-crime-victimswitnesses-at-courthouses/2017/04/04/3956e6d8-196d-11e7-98871a5314b56a08_story.html .............................................................................................. 10
Jacob Bucher, Michelle Manasse, & Beth Tarasawa, Undocumented Victims: An Examination of Crimes Against Undocumented Male Migrant Workers, 7 Sw. J. Crim. Just. 159 (2010) ....................................................................................................................... 14
Letter from Tani G. Cantil-Sakauye, Chief Justice of the Supreme Court of California, to Jeff Sessions, Att’y Gen. of the U.S., and John F. Kelly, Sec’y of Dep’t of Homeland Sec. (Mar. 16, 2017) .............................................................................. 12, 13
Steve Coll, When a Day in Court is a Trap for Immigrants, New Yorker, Nov. 8, 2017, https://www.newyorker.com/news/daily-comment/when-a-day-in-court-is-atrap-for-immigrants ........................................................................................................ 11
ii

Maria Cramer, ICE Courthouse Arrests Worry Attorneys, Prosecutors, Boston Globe, June 16, 2017, https://www.bostonglobe.com/metro/2017/06/15/ice-arrests-andaround-local-courthouses-worry-lawyers-prosecutors/ xxFH5vVJnMeggQa0NMi8gI/story.html................................................................... 13
Robert C. Davis, Edna Erez, & Nancy Avitabile, Access to Justice for Immigrants Who Are Victimized: The Perspectives of Police and Prosecutors, 12 Crim. Just. Pol’y Rev. 183 (2001).............................................................................................................................. 7, 9
Detainer Polices, Immigrant Legal Res. Ctr. (Mar. 21, 2017)................................................ 4
Letter from Mary E. Fairhurst, Chief Justice of the Supreme Court of Washington, to John F. Kelly, Sec’y of Dep’t of Homeland Sec. (Mar. 22, 2017) ............................ 13
James Fanelli, Father of Two Who Testified in Brooklyn Homicide Cases and Is Married to a U.S. Citizen Detained by ICE, N.Y. Daily News, Aug. 2, 2017, http://www. nydailynews.com/new-york/dad-2-testified-brooklyn-murder-cases-detained-icearticle-1.3378899 ............................................................................................................. 11
Elizabeth Fussell, The Deportation Threat Dynamic & Victimization of Latino Migrants: Wage Theft & Robbery, 52 Soc. Q. 593 (2011) .............................................................. 13
Michael John Garcia & Kate M. Manuel, Cong. Research Serv., R43457, State and Local “Sanctuary” Policies Limiting Participation in Immigration Enforcement (July 10, 2015) .......................................................................................................... 15, 16
Heidi Glenn, Fear of Deportation Spurs 4 Women to Drop Domestic Abuse Cases in Denver, NPR, Mar. 21, 2017, http://www.npr.org/2017/03/21/520841332/fear-ofdeportation-spurs-4-women-to-drop-domestic-abuse-cases-in-denver................... 11
Matthew Haag, Texas Deputy Accused of Molesting 4-Year-Old and Threatening to Deport Her Mother, N.Y. Times, June 18, 2018, https://www.nytimes.com/2018/06/18/us/ cop-molests-girl-deport-mother.html................................................................................
Immigrant Defense Project, ICE Out of Courts, https://www.immigrantdefenseproject. org/ice-courts/ ............................................................................................................... 11
Philip Jankowski, Deportation Fears Keep Victim from Cooperating in Domestic Violence Case, Travis DA Says, The Statesman (Austin), Mar. 8, 2017,http://www.statesman.com/ news/local/deportation-fears-keep-victim-from-cooperating-domestic-violencecase-travis-says/rdZAjFEAxjHWnxXV1LlpjM/....................................................... 11
iii

Anita Khashu, The Role Of Local Police: Striking a Balance Between Immigration Enforcement and Civil Liberties, Police Found. (Apr. 2009) ............................................................. 5, 7
Latinos and the New Trump Administration, Pew Research Ctr.: Hispanic Trends, Feb. 23, 2017, http://www.pewhispanic.org/2017/02/23/latinos-and-the-new-trumpadministration.................................................................................................................... 6
Letter from Law Enforcement Task Force to Hon. Trey Gowdy & Hon. Zoe Lofgren (July 20, 2015) ................................................................................................................ 17
Jasmine C. Lee, Rudy Omri, & Julia Preston, What Are Sanctuary Cities?, N.Y. Times, Feb. 6, 2017, http://www.nytimes.com/interactive/2016/09/02/us/sanctuarycities.html .......................................................................................................................... 4
Legislative Threats to Undermine Community Safety Policies: The Costs of Entangling Local Policing and Immigration Law, Nat’l Immigrant Justice Ctr. & Nat’l Immigration Law Ctr. (Aug. 2015) ............................................................................................................. 17
Local Law Enforcement Leaders Oppose Mandates to Engage in Immigration Enforcement, Nat’l Immigration Law Ctr. (Aug. 2013), at 2 (statement of Chief Acevedo) ................... 9
Jill Theresa Messing et al., Latinas’ Perceptions of Law Enforcement: Fear of Deportation, Crime Reporting, and Trust in the System, 30 J. Women & Soc. Work 328 (2015) .. 7, 14
Katie Mettler, “This is Really Unprecedented”: ICE Detains Woman Seeking Domestic Abuse Protection at Texas Courthouse, Wash. Post, Feb. 16, 2017, https://www. washingtonpost.com/news/morning-mix/wp/2017/02/16/this-is-reallyunprecedented-ice-detains-woman-seeking-domestic-abuse-protection-at-texascourthouse/ ..................................................................................................................... 10
Michael Morris & Lauren Renee Sepulveda, A New ICE Age, The Texas Prosecutor, Vol. 47, No. 4 (July/Aug. 2017) .................................................................................... 8
Nat’l Immigrant Women’s Advocacy Project, Promoting Access to Justice for Immigrant and Limited English Proficient Crime Victims in an Age of Increased Immigration Enforcement: Initial Report from a 2017 National Survey, at 99 (May 3, 2018), available at http://library.niwap.org/wp-content/uploads/Immigrant-Access-to-JusticeNational-Report.pdf ........................................................................................................ 8
Oversight of the Administration’s Misdirected Immigration Enforcement Policies: Examining the Impact of Public Safety and Honoring the Victims: Hearing Before the S. Comm. on the Judiciary (July 21, 2015) (statement of Tom Manger, Chief, Montgomery Cty., Md., Police Dep’t & President, Major Cities Chiefs Ass’n).................................................. 4 iv

Phoenix, AZ, Police Dep’t Operations Order Manual (Jan. 2011) available at https://www.phoenix.gov/policesite/Documents/089035.pdf ............................. 16
James Queally, Fearing Deportation, Many Domestic Violence Victims Are Steering Clear of Police and Courts, L.A. Times, Oct. 9, 2017, http://www.latimes.com/local/ lanow/la-me-ln-undocumented-crime-reporting-20171009-story.html ................... 8
Letter from Stuart Rabner, Chief Justice of the Supreme Court of New Jersey, to John F. Kelly, Sec’y of Dep’t of Homeland Sec. (Apr. 19, 2017) ..................................... 13
Angelica S. Reina, Brenda J. Lohman, & Marta María Maldonado, “He Said They’d Deport Me”: Factors Influencing Domestic Violence Help-Seeking Practices Among Latina Immigrants, 29 J. Interpersonal Violence 593 (2013) ............................................ 14, 15
Sarah Stillman, When Deportation Is a Death Sentence, New Yorker, Jan. 15, 2018, https://www.newyorker.com/magazine/2018/01/15/when-deportation-is-adeath-sentence ................................................................................................................ 12
S.P. Sullivan, Advocates Say ICE Courthouse Arrests in N.J. Are Hurting Immigrant Crime Victims, NJ, June 5, 2017, http://www.nj.com/politics/index.ssf/2017/06/ advocates_say_ice_courthouse_arrests_are_hurting_i.html ..................................... 12
Nik Theodore, Insecure Communities: Latino Perceptions of Police Involvement in Immigration Enforcement (May 2013) ................................................................................................ 6, 7
Washington, DC, Mayor’s Order 2011-174: Disclosure of Status of Individuals: Policies and Procedures of District of Columbia Agencies (Oct. 19, 2011) .......... 16
Chuck Wexler, Commentary: Why Police Support Sanctuaries, Phila. Inquirer, Mar. 10, 2017, http://www.philly.com/philly/opinion/20170310_Commentary__ Why_police_support_sanctuaries.html ........................................................................ 17
Emma Whitford, Courthouse ICE Arrests Are Making Immigrants ‘Sitting Ducks,’ Lawyers Warn, Gothamist, June 22, 2017, http://gothamist.com/2017/06/22/ice_ immigrants_courts.php .................................................................................................. 12
Tom K. Wong, The Effects of Sanctuary Policies on Crime and the Economy, Ctr. for Am. Progress (Jan. 26, 2017), https://www.americanprogress.org/issues/ immigration/reports/2017/01/26/297366/the-effects-of-sanctuary-policies-oncrime-and-the-economy/............................................................................................... 18
v

INTEREST AND IDENTITY OF AMICI CURIAE Amici Current and Former Prosecutors and Law Enforcement Leaders file this brief as Amici Curiae in support of Plaintiff-Appellee.1 Amici are criminal justice leaders who have extensive expertise in law enforcement, prosecution, and cooperative federal-state law enforcement activities. They are intimately familiar with the challenges of performing critical law enforcement and governance functions in communities where immigrants fear the police and are vulnerable to exploitation and crime. Amici represent jurisdictions from across the country that understand the challenges of balancing local community needs and public safety. Amici’s experience in keeping their communities safe has underscored the critical importance of bringing immigrants and their families “out of the shadows.” Community trust and cooperation are essential to public safety, and sound police work as well as successful prosecutorial efforts are undermined by undocumented immigrants’ fears of interacting with law enforcement and the justice system. This dynamic, moreover, leaves undocumented immigrants more vulnerable to crime and exploitation, and undocumented immigrant victims less likely to come forward or cooperate with investigations and prosecutions, leading to more violence in the
1 The parties have consented to the filing of this brief. No counsel for a party authored this brief in whole or in part, and no party or counsel for a party made a monetary contribution intended to fund the preparation or submission of this brief. No person other than amici curiae or their counsel made a monetary contribution to this brief’s preparation or submission.
1

communities amici are charged with protecting. Before the permanent injunction issued in this case, the Department of Justice
had in 2017 begun rewarding jurisdictions that partnered with federal immigration authorities in deciding who would receive grants from its Office of Community Oriented Policing Services (COPS). For fiscal year 2017, DOJ added a focus area called “Illegal Immigration,” and it encouraged COPS applicants to sign a “Certification of Illegal Immigration Cooperation.” Applicants could not complete this certification without pledging to provide federal immigration agents with unlimited access to detention facilities to inquire about immigration status, and to notify the Department of Homeland Security as soon as practicable before releasing an alien in the jurisdiction’s custody.
Amici believe that these inducements would dangerously impact local communities by requiring jurisdictions to prioritize civil immigration enforcement over public safety or else lose funding for important public safety and community initiatives. These requirements would cause community members to distrust the police and justice system officials and thereby result in a decrease in cooperation, hindering the ability of local law enforcement and local prosecutors to keep their communities safe. The conditions would also drain scarce resources that would otherwise be used to enhance public safety, depriving local law enforcement and justice system leaders of the discretion necessary to determine how best to protect
2

their communities. Local officials are in the best position to know what policing and law enforcement policies are most effective for their communities.
Jurisdictions across the country rely heavily on COPS grants to support programs related to law enforcement. In particular, the COPS Hiring Program provides essential funding for career law enforcement officers hired to enhance community policing and crime prevention. Amici believe that the injunction issued by the District Court is necessary to halt the Justice Department’s attempt to force local law enforcement officers and agencies to engage in practices detrimental to public safety.
A full list of amici is attached as Exhibit A. INTRODUCTION
The lessons amici have learned in protecting their communities shed important light on the issues raised in this case. When community residents live in constant fear that interactions with local law enforcement officials could result in deportation, there is a fundamental breakdown in trust that threatens public safety and impedes justice system leaders from doing their jobs. Extensive evidence shows that undocumented immigrants—and their lawfully present family and neighbors—fear that turning to the police and cooperating with prosecutors could bring adverse immigration consequences. As a result, immigrant communities are less willing to report crimes and cooperate with criminal investigations and prosecutions. This fundamental breakdown in trust poses a major challenge to the investigation and prosecution of
3

individual crimes and to the proper allocation of public safety resources.
Current policies limiting local and state involvement in federal immigration
enforcement address this issue of trust. Though they take several different forms,
these policies generally aim to preserve local and state resources and improve public
safety by promoting cooperation between law enforcement and the communities they serve.2 Many jurisdictions—whether via ordinance, administrative policy, or state
law—limit the degree to which their officials may, for example, cooperate with ICE detainers.3 The Justice Department’s newly devised considerations for awarding
COPS grants would upend these policies, to the detriment of community safety. The
access and notification requirements, in particular, seek to compel local jurisdictions
to take part in federal immigration enforcement. Cities and counties would be forced
to choose between building trust with immigrant communities and enhancing public
safety on one hand, and potentially losing vital federal funds on the other. The federal
government cannot force local law enforcement into such a Hobson’s choice.
2 See Oversight of the Administration’s Misdirected Immigration Enforcement Policies: Examining the Impact of Public Safety and Honoring the Victims: Hearing Before the S. Comm. on the Judiciary, at 2 (July 21, 2015) (statement of Tom Manger, Chief, Montgomery Cty., Md., Police Dep’t & President, Major Cities Chiefs Ass’n), available at http://www. judiciary.senate.gov/imo/media/doc/07-21-15%20Manger%20Testimony.pdf. 3 8 C.F.R. § 287.7; see also Jasmine C. Lee, Rudy Omri, and Julia Preston, What Are Sanctuary Cities?, N.Y. Times, Feb. 6, 2017, http://www.nytimes.com/interactive/ 2016/09/02/us/sanctuary-cities.html; Detainer Polices, Immigrant Legal Res. Ctr. (Mar. 21, 2017), available at https://www.ilrc.org/detainer-policies [hereinafter ILRC Detainer Policies].
4

ARGUMENT I. Trust and Respect Between Communities and Law Enforcement
Officials Are Essential to Public Safety and Are Thwarted When Victims and Witnesses Fear Deportation Consequences of Cooperating.
The experience of policing cities across the country has taught law enforcement
officers that, “[t]o do our job, we must have the trust and respect of the communities we serve.”4 In order to stop crime, police officers “need the full cooperation of victims
and witnesses.”5
This common-sense philosophy is sometimes called “community policing.” As
the District Court below recognized, community policing is an approach to policing
whereby local law enforcement engages communities in a working partnership to
reduce crime and promote public safety.6 It thus requires police to interact with
neighborhood residents in a manner that will build trust and improve the level of
cooperation with the police department.7 When that relationship of trust is missing—
as it is when people believe that contacting police or cooperating with prosecutors
could lead to deportation for themselves or others—community policing breaks down
4 Statement of Tom Manger, supra note 2, at 2. 5 Id. 6 See Anita Khashu, The Role Of Local Police: Striking a Balance Between Immigration Enforcement and Civil Liberties, Police Found. (Apr. 2009), available at https://www. policefoundation.org/wp-content/uploads/2015/06/The-Role-of-Local-PoliceNarrative.pdf. 7 Id.
5

and the entire community is harmed. According to a recent Pew survey, 67 percent of Hispanic immigrants and 47
percent of all Hispanic adults in the United States worry about deportation—of themselves, family members, or close friends.8 This fear necessarily affects cooperation and communication with police and prosecutors. Immigrants—and their family members and neighbors who may be U.S. citizens or lawfully present—often assume that interaction with law enforcement officials could have adverse consequences for themselves or a loved one.
As a result, immigrant communities in general, and undocumented immigrants in particular, are less likely to trust and cooperate with local police and prosecutors. One survey of Latinos in four major cities found that 70 percent of undocumented immigrants and 44 percent of all Latinos would be less likely to contact law enforcement authorities if they were victims of a crime for fear that the police would ask them or people they know about their immigration status; and 67 percent of undocumented immigrants and 45 percent of all Latinos would be less likely to voluntarily offer information about, or report, crimes because of the same fear.9
8 Latinos and the New Trump Administration, Pew Research Ctr.: Hispanic Trends, Feb. 23, 2017, http://www.pewhispanic.org/2017/02/23/latinos-and-the-new-trumpadministration/. 9 Nik Theodore, Insecure Communities: Latino Perceptions of Police Involvement in Immigration Enforcement 5–6 (May 2013), available at www.policylink.org/sites/default/files/ INSECURE_COMMUNITIES_REPORT_FINAL.PDF; see also id. at 1 (“Survey results indicate that the greater involvement of police in immigration enforcement has
6

These studies (among others) highlight that fears of immigration enforcement
and the resulting damage to law enforcement cooperation affect not just
undocumented community members but also individuals with citizenship or lawful
status, particularly in “mixed-status” households.10
This problematic atmosphere of mistrust is felt by police as well. In one study,
two-thirds of the law enforcement officers polled expressed the view that recent
immigrants reported crimes less frequently than others.11 Those surveyed also
indicated that the crimes underreported by immigrants are most often serious ones,
with domestic violence and gang violence at the top.12 These trends have only
worsened in recent months. According to the Houston Police Department, rape
reporting by members of the Hispanic community fell over 40 percent from the first
quarter of 2016 to the same period in 2017, despite an overall increase in city-wide
significantly heightened the fears many Latinos have of the police, . . . exacerbating their mistrust of law enforcement authorities.”). 10 An estimated 85 percent of immigrants live in mixed-status families. See Khashu, supra note 6, at 24; see also Jill Theresa Messing et al., Latinas’ Perceptions of Law Enforcement: Fear of Deportation, Crime Reporting, and Trust in the System, 30 J. Women & Soc. Work 328, 334 (2015) (“The results indicate that for each 1-point increase in fear of deportation [e.g., from ‘not much’ to ‘some’ worry, or from ‘some’ to ‘a lot’], Latina participants were 15% less willing to report being victim of a violent crime to police.”). 11 Robert C. Davis, Edna Erez, & Nancy Avitabile, Access to Justice for Immigrants Who Are Victimized: The Perspectives of Police and Prosecutors, 12 Crim. Just. Pol’y Rev. 183, 187 (2001). 12 Id. at 188–89.
7

crime reports.13 Los Angeles, San Francisco, and San Diego also witnessed lagging
sexual assault and domestic violence reporting by Hispanic persons—but not other
ethnic groups—in the first half of 2017.14 According to Los Angeles County Sheriff’s
Deputy Marino Gonzalez, “[t]hey’re afraid of us. And the reason they’re afraid of us is
because they think we’re going to deport them.”15 Philadelphia Police Commissioner
Richard Ross recently echoed these concerns in sworn testimony.16
Immigrants’ widely recognized fear of interacting with law enforcement and
prosecutors poses a fundamental challenge for community policing. Police cannot
prevent or solve crimes if victims or witnesses are unwilling to talk to them or
prosecutors because of concerns that they, their loved ones, or their neighbors will
face adverse immigration consequences. According to a recent national survey, law
13 Michael Morris & Lauren Renee Sepulveda, A New ICE Age, Texas Dist. & Cty. Attorneys Ass’n, The Texas Prosecutor, Vol. 47, No. 4 (July/Aug. 2017), https://www. tdcaa.com/journal/new-ice-age. 14 James Queally, Fearing Deportation, Many Domestic Violence Victims Are Steering Clear of Police and Courts, L.A. Times, Oct. 9, 2017, http://www.latimes.com/local/lanow/lame-ln-undocumented-crime-reporting-20171009-story.html. 15 Id.; see also Nat’l Immigrant Women’s Advocacy Project, Promoting Access to Justice for Immigrant and Limited English Proficient Crime Victims in an Age of Increased Immigration Enforcement: Initial Report from a 2017 National Survey, at 99 (May 3, 2018), available at http://library.niwap.org/wp-content/uploads/Immigrant-Access-to-Justice-NationalReport.pdf [hereinafter NIWAP Report] (finding that, between 2016 and 2017, fear of deportation was the principal reason why immigrant victims did not call the police for help or file or follow through with a court case). 16 See City of Philadelphia v. Sessions, No. CV17-3894, 2018 WL 2725503, at *42 (E.D. Pa. June 6, 2018) (“Police Commissioner Ross reiterated his earlier testimony that the City’s ability to fight crime is impaired when victims and witnesses are afraid to report crimes for fear of immigration consequences.”).
8

enforcement officers have seen an across-the-board decline in immigrant
communities’ willingness to cooperate with law enforcement.17 As the president of the
Major Cities Chiefs Association has explained to Congress, “[c]ooperation is not
forthcoming from persons who see their police as immigration agents.”18 And, as
cautioned by one official, “immigrants will never help their local police to fight crime
once they fear we have become immigration officers.”19
The underreporting of crimes by recent immigrants is a problem for the entire
criminal justice system.20 The most immediate consequence, of course, is that serious
crimes go unreported and unpunished. In a recent national survey, a majority of
participating law enforcement officers reported that such barriers to cooperation have
“le[d] to greater numbers of perpetrators at large,”21 thereby threatening officer safety
and the safety of entire communities.22 As one official explained, when criminal
behavior goes unreported, “[c]rime multiplies,” and “[u]nresolved resentments grow
in the community.”23 Another added that the underreporting of crime “keeps fear at
17 NIWAP Report, supra note 15, at 101. 18 Statement of Tom Manger, supra note 2, at 2. 19 Local Law Enforcement Leaders Oppose Mandates to Engage in Immigration Enforcement, Nat’l Immigration Law Ctr., at 2 (Aug. 2013) (statement of Chief Acevedo), available at https://www.nilc.org/wp-content/uploads/2017/02/Law-Enforcement-Oppositionto-Mandates-2013-08-30.pdf. 20 Davis et al., supra note 11, at 188. 21 NIWAP Report, supra note 15, at 103. 22 Id. at 104. 23 Davis et al., supra note 11, at 188.
9

very high levels and diminishes quality of life.”24 Even beyond the underreporting of crime, undocumented immigrant victims and witnesses may refuse to come to court to testify in important criminal cases because of their fear of being detained and deported.
These concerns are anything but hypothetical. Over the past two years, the trends generating such concerns have escalated in ways that threaten long-term harm to criminal justice system operations. A Department of Homeland Security official recently illustrated why many immigrants hesitate to cooperate with law enforcement. In a briefing to reporters, he stated that “[j]ust because they’re a victim in a certain case does not mean there’s not something in their background that could cause them to be a removable alien.”25 An immigrant woman living in Texas learned that lesson all too perversely when she arrived at a courthouse seeking a protective order against her abusive boyfriend, only to leave under arrest—likely due to a tip from her abuser.26 In August 2017, federal agents detained an undocumented immigrant who
24 Id. 25 Devlin Barrett, DHS: Immigration Agents May Arrest Crime Victims, Witnesses at Courthouses, Wash. Post, Apr. 4, 2017, https://www.washingtonpost.com/world/ national-security/dhs-immigration-agents-may-arrest-crime-victims-witnesses-atcourthouses/2017/04/04/3956e6d8-196d-11e7-9887-1a5314b56a08_story.html. 26 Katie Mettler, “This is Really Unprecedented”: ICE Detains Woman Seeking Domestic Abuse Protection at Texas Courthouse, Wash. Post, Feb. 16, 2017, https://www.washingtonpost. com/news/morning-mix/wp/2017/02/16/this-is-really-unprecedented-ice-detainswoman-seeking-domestic-abuse-protection-at-texas-courthouse/.
10

had provided key testimony in two homicide cases.27 And, weeks later, ICE agents
arrested a victim of domestic violence as he left a county courthouse.28 The
Immigrant Defense Project reports that the number of arrests or attempted arrests by
ICE agents at courthouses throughout New York rose by a staggering 1200 percent
from 2016 to 2017.29
Precisely because victims and witnesses fear similar treatment from
immigration authorities, some violent crimes have gone unreported, and pending
prosecutions have disappeared from courts’ dockets. A Texas district attorney
confirmed that a victim of domestic violence had become uncooperative because she
feared deportation.30 Denver prosecutors were forced to drop four domestic abuse
cases when similar worries deterred the victims from testifying;31 in 2017, more than a
dozen Latina women in Denver dropped their own civil cases against domestic
27 James Fanelli, Father of Two Who Testified in Brooklyn Homicide Cases and Is Married to a U.S. Citizen Detained by ICE, N.Y. Daily News, Aug. 2, 2017, http://www.nydailynews. com/new-york/dad-2-testified-brooklyn-murder-cases-detained-ice-article-1.3378899. 28 Steve Coll, When a Day in Court is a Trap for Immigrants, New Yorker, Nov. 8, 2017, https://www.newyorker.com/news/daily-comment/when-a-day-in-court-is-a-trapfor-immigrants. 29 Immigrant Defense Project, ICE Out of Courts, https://www. immigrantdefenseproject.org/ice-courts/. 30 Philip Jankowski, Deportation Fears Keep Victim from Cooperating in Domestic Violence Case, Travis DA Says, The Statesman (Austin), Mar. 8, 2017, http://www.statesman. com/news/local/deportation-fears-keep-victim-from-cooperating-domestic-violencecase-travis-says/rdZAjFEAxjHWnxXV1LlpjM/. 31 Heidi Glenn, Fear of Deportation Spurs 4 Women to Drop Domestic Abuse Cases in Denver, NPR, Mar. 21, 2017, http://www.npr.org/2017/03/21/520841332/fear-ofdeportation-spurs-4-women-to-drop-domestic-abuse-cases-in-denver.
11

abusers, citing fear of deportation.32 An immigrant mother in New Jersey, fearing that
interaction with the court system could trigger removal, declined to report that her
son had been assaulted on his way to school.33 And a victim of domestic violence in
New York City “did not think it was in her best interest” to pursue a protective
order.34 In addition to their particular deportation concerns, undocumented
immigrant victims and witnesses may understandably recoil more generally from a
system that allows participants to walk freely into a courthouse to fulfill a civic
responsibility to testify, only to be detained by immigration authorities and prevented
from returning to their lives.
In response to these incidents, the chief justices of three state supreme courts,
including the Supreme Court of California, have written top federal authorities to
emphasize that preserving trust with immigrant communities is essential to the
administration of justice.35 As Massachusetts Attorney General Maura Healey has
32 Sarah Stillman, When Deportation Is a Death Sentence, New Yorker, Jan. 15, 2018, https://www.newyorker.com/magazine/2018/01/15/when-deportation-is-a-deathsentence. 33 S.P. Sullivan, Advocates Say ICE Courthouse Arrests in N.J. Are Hurting Immigrant Crime Victims, NJ, June 5, 2017, http://www.nj.com/politics/index.ssf/2017/06/ advocates_say_ice_courthouse_arrests_are_hurting_i.html. 34 Emma Whitford, Courthouse ICE Arrests Are Making Immigrants ‘Sitting Ducks,’ Lawyers Warn, GOTHAMIST, June 22, 2017, http://gothamist.com/2017/06/22/ice_ immigrants_courts.php. 35 Letter from Tani G. Cantil-Sakauye, Chief Justice of the Supreme Court of California, to Jeff Sessions, Att’y Gen. of the U.S., and John F. Kelly, Sec’y of Dep’t of Homeland Sec. (Mar. 16, 2017), available at http://newsroom.courts.ca.gov/ news/chief-justice-cantil-sakauye-objects-to-immigration-enforcement-tactics-at-
12

explained, using local court systems as levers for federal immigration enforcement
“undercuts local law enforcement’s ability to develop the critical trust needed to keep
communities safe.”36
Distrust between immigrants and law enforcement also results in greater
victimization of immigrants. “When immigrants come to view their local police and
sheriffs with distrust because they fear deportation, it creates conditions that
encourage criminals to prey upon victims and witnesses alike.”37 This phenomenon
has been termed the “deportation threat dynamic,” whereby individuals who fear
removal from the United States do not report the crimes they suffer.38 Nearly two-
thirds of undocumented migrant workers participating in a study in Memphis,
Tennessee, reported being the victim of at least one crime, with the most common
california-courthouses; Letter from Mary E. Fairhurst, Chief Justice of the Supreme Court of Washington, to John F. Kelly, Sec’y of Dep’t of Homeland Sec. (Mar. 22, 2017), available at https://www.courts.wa.gov/content/publicUpload/ Supreme%20Court%20News/KellyJohnDHSICE032217.pdf; Letter from Stuart Rabner, Chief Justice of the Supreme Court of New Jersey, to John F. Kelly, Sec’y of Dep’t of Homeland Sec. (Apr. 19, 2017), available at https://www.documentcloud. org/documents/3673664-Letter-from-Chief-Justice-Rabner-to-Homeland.html# document/p1. 36 Maria Cramer, ICE Courthouse Arrests Worry Attorneys, Prosecutors, Boston Globe, June 16, 2017, https://www.bostonglobe.com/metro/2017/06/15/ice-arrests-andaround-local-courthouses-worry-lawyers-prosecutors/xxFH5vVJnMeggQa0NMi8gI/ story.html. 37 Statement of Tom Manger, supra note 2, at 2. 38 Elizabeth Fussell, The Deportation Threat Dynamic & Victimization of Latino Migrants: Wage Theft & Robbery, 52 Soc. Q. 593, 610 (2011).
13

being theft and robbery.39 Respondents indicated that fewer than a quarter of these
crimes were reported to the police, and only one was reported by the victim himself.40
And, in one especially horrific incident, a four-year-old girl suffered repeated sexual
abuse at the hands of someone who threatened to cause her mother to be deported if
the mother reported her daughter’s exploitation.41
Undocumented immigrants are particularly vulnerable to domestic violence. A
number of studies have shown that abusive partners may exploit the threat of
deportation in order to maintain power and control.42 Financial dependence on an
abusive partner with stable immigration status may facilitate violence in this way.43
Seventy percent of participants in one study of domestic abuse victims said that
39 Jacob Bucher, Michelle Manasse, & Beth Tarasawa, Undocumented Victims: An Examination of Crimes Against Undocumented Male Migrant Workers, 7 Sw. J. Crim. Just. 159, 164, 166 (2010). 40 Id. at 165. 41 Matthew Haag, Texas Deputy Accused of Molesting 4-Year-Old and Threatening to Deport Her Mother, N.Y. Times, June 18, 2018, https://www.nytimes.com/2018/06/18/ us/cop-molests-girl-deport-mother.html. 42 See, e.g., Messing, supra note 10, at 330 (citing several studies); Angelica S. Reina, Brenda J. Lohman, & Marta María Maldonado, “He Said They’d Deport Me”: Factors Influencing Domestic Violence Help-Seeking Practices Among Latina Immigrants, 29 J. Interpersonal Violence 593, 601 (2013). The latter study cited a participant who explained that a partner “beat me up and I could have called the police because that was what I thought to do . . . but he threatened me . . . . [H]e told me that if I called the police I was going to lose out . . . because [police officers] . . . would . . . take me, because I didn’t have legal documents.” Reina, Lohman, & Maldonado at 601; see also NIWAP Report, supra note 15, at 103 (noting that 69 percent of law enforcement officers surveyed had observed a decrease in domestic violence reporting). 43 See, e.g., Messing, supra note 10, at 330.
14

immigration status was a major factor keeping them from seeking help or reporting
their abuse to the authorities—and thereby permitting the violence to continue.44 In
another study, immigration status was identified as the single largest factor
independently affecting the rate at which battered Latina immigrants called the
police.45
II. Policies Limiting Local and State Involvement in Federal Immigration Enforcement Are Critical to Building and Maintaining Trust Between the Community and Law Enforcement While Preserving Local Resources.
In limiting local and state involvement in federal immigration enforcement,
many jurisdictions aim to enhance community trust and preserve local resources.
These policies improve public safety by promoting cooperation between law
enforcement and the communities they serve.
Some administrative policies or laws include formal restrictions on local law
enforcement’s ability to apprehend or arrest an individual for federal immigration
violations, including restrictions on arrests for civil violations of federal immigration
law.46 Other policies include restrictions on local law enforcement inquiries or
44 Reina, Lohman, & Maldonado, supra note 42, at 600. 45 Nawal H. Ammar et al., Calls to Police and Police Response: A Case Study of Latina Immigrant Women in the USA, 7 Int’l J. Police Sci. & Mgmt. 230, 237 (2005). 46 See Michael John Garcia & Kate M. Manuel, Cong. Research Serv., R43457, State and Local “Sanctuary” Policies Limiting Participation in Immigration Enforcement 9 (July 10, 2015), available at https://www.fas.org/sgp/crs/homesec/R43457.pdf; see also OR. REV. STAT. ANN. § 181A.820 (“No law enforcement agency of the State of Oregon or of any political subdivision of the state shall use agency moneys,
15

investigations into a person’s immigration status or the gathering of such information
at the local level.47 Additionally, many jurisdictions have adopted policies against
continued detention of an individual based on immigration detainer requests for at
least some categories of noncitizens.48 Several states, including California, limit the
extent to which local police can cooperate with detainer requests, and more than 400
counties have policies limiting cooperation with detainers.49
These policies also play an important role in preserving local law enforcement
resources. For example, complying with ICE detainer requests can add staggering
equipment or personnel for the purpose of detecting or apprehending persons whose only violation of law is that they are persons of foreign citizenship present in the United States in violation of federal immigration laws.”); Washington, DC, Mayor’s Order 2011-174: Disclosure of Status of Individuals: Policies and Procedures of District of Columbia Agencies, at 2 (Oct. 19, 2011) (“No person shall be detained solely on the belief that he or she is not present legally in the United States or that he or she has committed a civil immigration violation.”), available at https://www.scribd. com/document/69470234/Disclosure-Status-of-Individuals-D-C [hereinafter DC Order]; Phoenix, AZ, Police Dep’t Operations Order Manual, at 1.4 (Jan. 2011) (“The investigation and enforcement of federal laws relating to illegal entry and residence in the United States is specifically assigned to [Immigration and Customs Enforcement within DHS].”), available at https://www.phoenix.gov/policesite/Documents/ 089035.pdf; see also Melendres v. Arpaio, 695 F.3d 990, 1001 (9th Cir. 2012) (“[The sheriff] may not detain individuals solely because of unlawful presence.”). 47 See, e.g., DC Order, supra note 46 (public safety employees “shall not inquire about a person’s immigration status . . . for the purpose of initiating civil enforcement of immigration proceedings that have no nexus to a criminal investigation”). 48 Garcia & Manuel, supra note 46, at 14. 49 See Cal. Gov’t Code § 7284.6(a)(1)(B) (prohibiting local law enforcement agencies from “[u]sing agency or department moneys or personnel to . . . [d]etain an individual on the basis of a hold request”); see also Omri and Preston, supra note 3; ILRC Detainer Policies, supra note 3.
16

costs—in some cases, tens of millions of dollars annually.50 Requiring localities to
provide notice of release and access to ICE officials to all facilities where any
individual is detained would have similar effects. Communities carefully allocate
resources such as funds, training, and officer duties to serve local law enforcement
needs most effectively; forced redistribution to immigration enforcement would
siphon limited resources away from where they are most needed while simultaneously damaging community engagement and protection.51
Recent incidents in localities with policies limiting local involvement in federal
immigration enforcement demonstrate the public safety benefits of such policies. For
example, in 2016, Los Angeles Police Department officers had an encounter with a
suspected gang member that resulted in a vehicle chase, a foot pursuit, and shots
fired. An undocumented immigrant helped police to locate the suspect by providing a description and vehicle information.52 In Tucson, Arizona, an undocumented man
confronted and struggled with a man who tried to steal a car with children inside. The
50 See Legislative Threats to Undermine Community Safety Policies: The Costs of Entangling Local Policing and Immigration Law, Nat’l Immigrant Justice Ctr. & Nat’l Immigration Law Ctr. (Aug. 2015), available at http://immigrantjustice.org/sites/immigrantjustice.org/files/ 201508_05_NIJC_NILC_EnforcementCosts.pdf. 51 See Letter from Law Enforcement Task Force to Hon. Trey Gowdy and Hon. Zoe Lofgren (July 20, 2015), available at https://immigrationforum.org/wp-content/ uploads/2015/07/072015-LEITF-Letter-House.pdf. 52 Chuck Wexler, Commentary: Why Police Support Sanctuaries, Phila. Inquirer, Mar. 10, 2017, http://www.philly.com/philly/opinion/20170310_Commentary__Why_ police_support_sanctuaries.html.
17

immigrant held the individual until police arrived, then cooperated with detectives in the follow-up investigation, resulting in charges of kidnapping, auto theft, and burglary.53 These examples show why crime is lower in statistically significant ways in counties that limit local involvement in federal immigration enforcement, such as by declining to hold individuals in local custody simply because ICE requests it.54
Redirecting COPS funds toward civil immigration enforcement would threaten to disrupt many communities’ efforts to ensure that immigrants do not fear interactions with local law enforcement and to divert jurisdictions’ resources from effective public safety efforts. Awarding COPS grants in this way would also deter other communities from adopting trust-enhancing policies in the future. In short, forcing grantee jurisdictions to entangle themselves further with federal immigration enforcement would send a dangerous signal to witnesses and victims within immigrant communities: cooperate with local law enforcement at your own risk.
CONCLUSION For the foregoing reasons, as well as the reasons set forth in PlaintiffAppellee’s brief, this Court should affirm the District Court’s grant of a permanent
53 Id. 54 Tom K. Wong, “The Effects of Sanctuary Policies on Crime and the Economy,” Center for American Progress (Jan. 26, 2017), available at https://www. americanprogress.org/issues/immigration/reports/2017/01/26/297366/the-effectsof-sanctuary-policies-on-crime-and-the-economy/ (“The results of the CEM analysis show that there are, on average, 35.5 fewer crimes per 10,000 people in sanctuary counties—a result that is highly statistically significant.”).
18

injunction and its order granting Plaintiff’s motion for partial summary judgment and denying the government’s motion for partial summary judgment.

July 5, 2018

Respectfully Submitted,
/s/ Matthew J. Piers
Matthew J. Piers Chirag G. Badlani Caryn C. Lederer HUGHES SOCOL PIERS RESNICK & DYM, LTD. 70 West Madison St., Suite 4000 Chicago, IL 60602 Phone: (312) 580-0100
Mary B. McCord Joshua A. Geltzer Daniel B. Rice Institute for Constitutional Advocacy and Protection Georgetown University Law Center 600 New Jersey Avenue NW Washington, DC 20001
Counsel for Amici Curiae

19

CERTIFICATE OF SERVICE The undersigned hereby certifies that a copy of BRIEF OF AMICI CURIAE CURRENT AND FORMER LAW ENFORCEMENT LEADERS was served on July 5, 2018 via this Court’s ECF filing system, whereupon all counsel of record were served.
/s/ Matthew J. Piers Matthew J. Piers
20

CERTIFICATE OF COMPLIANCE I certify that this document complies with the type-volume limitation set forth in Federal Rules of Appellate Procedure 29(a)(5) & 32(a)(7)(B) because it contains 4,530 words, exclusive of the portions of the brief that are exempted by Rule 32(f). I certify that this document complies with the typeface requirements of Federal Rule of Appellate Procedure 32(a)(5) and the type style requirements of Federal Rule of Appellate Procedure 32(a)(6) because it has been prepared in a proportionally spaced typeface using Microsoft Word in 14-point roman-style Garamond font.
/s/ Matthew J. Piers

Exhibit A

EXHIBIT A: LIST OF AMICI
Roy L. Austin Deputy Assistant to the President for Urban Affairs, Justice and Opportunity, White House Domestic Policy Council (2014-17); Deputy Assistant Attorney General, Civil Rights Division, U.S. Department of Justice (2010-14); Senior Assistant U.S. Attorney, District of Columbia (2009-10); Assistant U.S. Attorney, District of Columbia (2002-07; 2009-10)
Aramis Ayala State Attorney, Ninth Judicial Circuit (Orlando), Florida (2017-Present)
Chiraag Bains Senior Counsel to the Assistant Attorney General, Civil Rights Division, U.S. Department of Justice (2014-17); Trial Attorney, Criminal Section, Civil Rights Division, U.S. Department of Justice (2010-14)
Diana Becton District Attorney, Contra Costa County, California (2017-Present)
Sherry Boston District Attorney, Stone Mountain Judicial Circuit (DeKalb County), Georgia (2017-Present)
Chris Burbank Director of Law Enforcement Engagement, Center for Policing Equity (2015Present); Chief, Salt Lake City Police Department, Utah (2006-15)
Jerry L. Clayton Sheriff, Washtenaw County, Michigan (2009-Present)
Brendan Cox Chief, Albany Police Department, New York (2015-17)
Mark A. Dupree, Sr. District Attorney, Wyandotte County, Kansas (2017-Present)
Kim Foxx State’s Attorney, Cook County, Illinois (2016-Present)

Stanley Garnett District Attorney, 20th Judicial District (Boulder County), Colorado (2009Present)
George Gascón District Attorney, San Francisco, California (2011-Present)
Sim Gill District Attorney, Salt Lake County, Utah (2010-Present)
Eric Gonzalez District Attorney, Kings County, New York (2018-Present); Acting District Attorney, Kings County, New York (2016-18)
Mark Gonzalez District Attorney, Nueces County, Texas (2017-Present)
Michael Haley Sheriff, Washoe County, Nevada (2007-15)
John Hummel District Attorney, Deschutes County, Oregon (2015-Present)
Lawrence S. Krasner District Attorney, Philadelphia, Pennsylvania (2018-Present)
Miriam Aroni Krinsky Assistant U.S. Attorney, Central District of California (1987-88; 1990-2002); Criminal Appellate Chief and Chief, General Crimes; Former Assistant U.S. Attorney, District of Maryland (1988-90); Chair, Solicitor General’s Criminal Appellate Advisory Group (2000-02)
William Lansdowne Chief, San Diego Police Department, California (2003-14); Chief, San Jose Police Department, California (1995-2003); Chief, Richmond Police Department, California (1994-98)

Chris Magnus Chief, Tucson Police Department, Arizona (2016-Present); Chief, Richmond Police Department, California (2006-15); Chief, Fargo Police Department, North Dakota (1999-2005)
Beth McCann District Attorney, 2nd Judicial District (Denver County), Colorado (2017-Present)
Bill McCarthy Sheriff, Polk County, Iowa (2009-Present)
Stephanie Morales Commonwealth’s Attorney, Portsmouth, Virginia (2015-Present)
Marilyn J. Mosby State’s Attorney, Baltimore City, Maryland (2015-Present)
Joseph K. Pelle Sheriff, Boulder County, Colorado (2003-Present)
Celestino Rivera Chief, Lorain Police Department, Ohio (1993-Present)
Daniel Satterberg Prosecuting Attorney, King County, Washington (2007-Present)
Ronal Serpas Co-Chairman, Law Enforcement Leaders to Reduce Crime & Incarceration (2015Present); Superintendent, New Orleans Police Department, Louisiana (2010-14); Chief, Metropolitan Nashville Police Department, Tennessee (2004-10); Chief, Washington State Patrol, Washington (2001-04)
Carol A. Siemon Prosecuting Attorney, Ingham County, Michigan (2017-Present)
P. David Soares District Attorney, Albany County, New York (2005-Present)
Cyrus R. Vance, Jr. District Attorney, New York County, New York (2010-Present)

Andrew Warren State Attorney, 13th Judicial Circuit (Hillsborough County), Florida (2017Present)

 </s> No. 18-55599
IN THE UNITED STATES COURT OF APPEALS FOR THE NINTH CIRCUIT
CITY OF LOS ANGELES,
Plaintiff-Appellee,
v.
JEFFERSON B. SESSIONS III, et al.,
Defendants-Appellants.
On Appeal from the United States District Court for the Central District of California
REPLY BRIEF FOR APPELLANTS
CHAD A. READLER Acting Assistant Attorney General
NICOLA T. HANNA United States Attorney
MARK B. STERN DANIEL TENNY KATHERINE TWOMEY ALLEN BRAD HINSHELWOOD
Attorneys, Appellate Staff Civil Division, Room 7256 U.S. Department of Justice 950 Pennsylvania Avenue NW Washington, DC 20530 (202) 514-7823

TABLE OF CONTENTS
Page
INTRODUCTION AND SUMMARY OF ARGUMENT..............................................1
ARGUMENT ............................................................................................................................5
The Department Acted Well Within Its Authority In Offering Applicants Two Additional Means To Obtain Extra Points In The Scoring Of Competitive Proposals For Discretionary CHP Grants .....................5
A. The City Offers No Basis for Concluding That Including Illegal Immigration as a Focus Area Is Facially Invalid...........................................5
B. The City Offers No Basis for Concluding That the Department May Not Consider Community-Related Law Enforcement Conduct in Awarding Competitive Law Enforcement Grants Concerning Community-Oriented Policing.................................................15
C. The City’s Invocation of the Spending Clause and the Administrative Procedure Act Adds Nothing to its Argument................20
CONCLUSION ..................................................................................................................... 24
CERTIFICATE OF COMPLIANCE
CERTIFICATE OF SERVICE

TABLE OF AUTHORITIES

Cases:

Page(s)

Arizona v. United States, 567 U.S. 387 (2012) ...............................................................................................................9

Ely v. Velde, 451 F.2d 1130 (4th Cir. 1971)............................................................................................19

Gregory v. Ashcroft, 501 U.S. 452 (1991) .............................................................................................................20

Mayweathers v. Newland, 314 F.3d 1062 (9th Cir. 2002)............................................................................................21

Virginia Dep’t of Educ. v. Riley, 106 F.3d 559 (4th Cir. 1997)..............................................................................................20

Will v. Michigan Dep’t of State Police, 491 U.S. 58 (1989) ...............................................................................................................20

Statutes:
Homeland Security Act of 2002, Pub. L. No. 107-296, 116 Stat. 2178.........................................................................................................................7
Justice for Victims of Trafficking Act of 2015, Pub. L. No. 114-22, 129 Stat. 227 .........................................................................................................................18
Violent Crime Control & Law Enforcement Act of 1994, Pub. L. No. 103-322, 108 Stat. 1796 ..................................................................................6
5 U.S.C. § 553(a)(2) .................................................................................................................22
8 U.S.C. § 1357(g)......................................................................................................................2
8 U.S.C. § 1357(g)(1) ........................................................................................................ 12, 13
34 U.S.C. § 10228(a)................................................................................................................19

ii

34 U.S.C. § 10381 ....................................................................................................................19 34 U.S.C. § 10381(b)(4) ................................................................................................. 2, 7, 11 34 U.S.C. § 10381(c)(2)...........................................................................................................18 34 U.S.C. § 10381(c)(3)...........................................................................................................18 34 U.S.C. § 10382(c)(4) ......................................................................................... 4, 14, 16, 19 34 U.S.C. § 10382(c)(10).................................................................................................... 7, 22 Regulation: 8 C.F.R. § 287.7(a) ...................................................................................................................14 Other Authority: Office of Cmty. Oriented Policing Servs., U.S. Dep’t of Justice,
Community Policing Defined (rev. 2014) .................................................................................. 6
iii

INTRODUCTION AND SUMMARY OF ARGUMENT Los Angeles does not contest that the Department of Justice, like any other agency administering a discretionary grant program, has substantial discretion to evaluate and select applicants based on a wide range of broad statutory criteria. The City likewise does not contest that the Department may prioritize certain policy areas of particular importance to the federal government through, for example, the use of focus areas. And the City, like the Department, recognizes that scoring factors involving immigration enforcement are permissible so long as they are related to the purposes of the grant program at issue in this case. Thus, despite the City’s heated rhetoric, this case reduces to one question: whether the immigration-related scoring factors used in the fiscal year 2017 application for COPS Hiring Program (CHP) grants—which are optional for the applicant and are two of many factors used to score applications—are sufficiently related to community-oriented policing. In contending that they are not, Los Angeles relies on an unduly narrow conception of community-oriented policing and a cramped reading of the CHP’s authorizing statute. Rewarding jurisdictions that assist in effective enforcement of the immigration laws against aliens who have no lawful right to be present in their community—particularly aliens who present a risk of recidivism against the law-abiding community because they are in local criminal custody—falls well within the Department’s broad discretion to select recipients of competitive federal grants supporting community-oriented policing.

First, Los Angeles misunderstands the meaning of community-oriented policing. In the City’s view, community-oriented policing occurs only when there is a direct interaction between a law enforcement officer and a community member. Yet community-oriented policing is far broader; it represents a comprehensive philosophy of policing that affects all aspects of a law enforcement agency’s efforts by focusing on preventing rather than reacting to crime through engagement with the community. Thus, community-oriented policing includes not only direct police-community interactions, but also action by law enforcement officials made possible by, and informed by, cooperation with local residents. The City is thus quite wrong to declare that immigration enforcement efforts could not “implement community policing strategies,” LA Br. 39, just as the arrest of drug dealers and the conduct of anti-drug operations may be the fruit of community policing strategies. Nor can the City explain why a focus on illegal immigration is less susceptible to community-oriented policing than a focus on “addressing threats against facilities” or developing “criminal intelligence capacity,” ER 19, ¶ 8, which, as the City does not dispute, are specifically contemplated by the broad authorizations of the governing statute, see 34 U.S.C. § 10381(b)(4).
Second, localities can and do play a role in assisting the federal government with enforcement of the immigration laws through programs like Section 287(g) agreements. See 8 U.S.C. § 1357(g). Los Angeles presents no reason why localities, in the course of exercising those law enforcement duties, cannot employ the same
2

community-oriented policing strategies that they employ for addressing a host of other public safety concerns. That immigration proceedings are civil in nature is immaterial; whether the goals of community-oriented policing are achieved through civil rather than criminal proceedings has no bearing on the fundamental nature of a community-oriented policing program. Indeed, the fact that localities choose to participate in immigration enforcement efforts is itself a powerful indication that they view those efforts as beneficial for addressing public safety concerns in their own communities, which makes particular sense with respect to enforcement against aliens whom the localities themselves arrested for criminal conduct and thus would pose a threat of recidivism if released back into the community.
The City’s arguments with respect to the points awarded for providing a basic level of cooperation with federal immigration officials seeking to detain and remove criminal aliens are equally wide of the mark. Indeed, the City’s objection to the Illegal Immigration focus area as civil in nature does not even apply by its terms to the bonus points, which relate only to cooperation with the Department of Homeland Security regarding aliens held in local criminal custody. In determining which jurisdictions should receive competitive grants to further community-oriented policing, it is well within the Department of Justice’s discretion to prefer jurisdictions that are assisting federal efforts to enforce the immigration laws against removable aliens held in local criminal custody rather than undermining those efforts by returning those individuals to the community where they pose a threat of recidivism,
3

the incidence of which in turn undermines community confidence in, and relationships with, local law enforcement. This modest form of encouragement in no way suggests that Congress issued “a blank check,” LA Br. 3, in scoring grants. To the contrary, Congress specifically authorized the Department to reward applications that “identify related governmental and community initiatives which complement or will be coordinated” with a proposal for community-oriented policing funds. 34 U.S.C. § 10382(c)(4). Ensuring that criminal aliens are removed from the country rather than returned to the community to recidivate obviously complements community-oriented policing efforts, especially given that a jurisdiction’s choice to assist in such immigration enforcement presumably reflects the wishes of its community. Indeed, Los Angeles concedes that the Department “has considerable discretion” in “reasonably determin[ing]” whether a competitive grant application furthers the purposes of community-oriented policing, LA Br. 24, and that is precisely what the Department has done, notwithstanding the City’s disagreement as a policy matter, see LA Br. 14.
The City’s arguments with respect to the Spending Clause and the Administrative Procedure Act (APA) restate its contention that the Department lacks statutory authority to include the two provisions for obtaining additional points. Los Angeles does not suggest that the provisions violate the Spending Clause if they are authorized by statute. The only question is whether the Department exercised powers conferred by statute, which it did.
4

Similarly, the City’s arguments regarding the APA add nothing to its statutory argument, as Los Angeles largely repeats its assertions that immigration enforcement and community-oriented policing are incompatible. These assertions at bottom reflect only policy differences with the federal government. The City is free to select a different focus area. But its view of the best policy furnishes no basis for precluding other jurisdictions with a different view from choosing illegal immigration as a focus for community-oriented policing. Similarly, the Department’s judgment that jurisdictions seeking cooperative law enforcement funds should be rewarded for aiding, rather than undermining, federal law enforcement efforts is a policy determination which Los Angeles cannot second-guess through an APA action.
ARGUMENT The Department Acted Well Within Its Authority In Offering Applicants Two Additional Means To Obtain Extra Points In The Scoring Of Competitive Proposals For Discretionary CHP Grants A. The City Offers No Basis for Concluding That Including
Illegal Immigration as a Focus Area Is Facially Invalid. 1. Los Angeles does not dispute that in administering a discretionary grant program, the Department of Justice may prioritize certain policy areas of particular importance through the use of focus areas. Its brief provides no basis for concluding that a focus on community-oriented policing designed to address illegal immigration is in any respect outside the Department’s statutory authority. And it provides no principled basis for distinguishing this focus area from any of the various others that
5

the Department’s Office of Community Oriented Policing Services (COPS) has included throughout the history of these grants.
Immigration, like any number of other law enforcement and public safety concerns, is a potential subject for community-oriented policing. As the City itself recognizes, see LA Br. 5 & n.2, the COPS statute explains that the purpose of community-oriented policing is to orient policing towards preventing rather than reacting to crime through engagement with the community. Violent Crime Control & Law Enforcement Act of 1994, Pub. L. No. 103-322, tit. I, § 10002, 108 Stat. 1796, 1807. Likewise, the COPS Office has defined community-oriented policing as a philosophy of policing that embraces “the systematic use of partnerships and problem-solving techniques to proactively address the immediate conditions that give rise to public safety issues” across a wide range of areas. ER 53. Rather than narrowly focusing on a single area, police departments who have adopted the philosophy of community-oriented policing employ officers who can “handle multiple responsibilities and take a team approach to collaborative problem solving.” Office of Cmty. Oriented Policing Servs., U.S. Dep’t of Justice, Community Policing Defined 7 (rev. 2014).1 The philosophy also envisions entering into partnerships and sharing information with a host of entities, including government agencies. Id. at 2, 9. The
1 https://go.usa.gov/xUXdk 6

philosophy thus supports engaging with immigration-focused federal agencies and sharing relevant information.
The Illegal Immigration focus area offers localities the opportunity to design plans that put this philosophy to work in the context of illegal immigration. The City identifies no basis for concluding that partnerships and problem-solving techniques cannot be used to proactively address illegal immigration as they are used in addressing other areas of law enforcement concern.
The City does not and cannot contend that illegal immigration is not a proper focus of community-oriented policing merely because it is a matter of national as well as local concern, just like other aspects of homeland security. Los Angeles acknowledges, as it must, that “Congress specifically recognize[d] the role community policing can play in homeland security,” LA Br. 49, by explicitly providing that grants for “community-oriented policing,” 34 U.S.C. § 10382(c)(10), are properly used to facilitate deployment of officers in “intelligence, anti-terror, or homeland security duties,” id. § 10381(b)(4).2
The City nevertheless argues that immigration—unlike any other area relating to homeland security—is not an area legitimately addressed in community-oriented policing efforts. And, because this is a facial challenge, the City necessarily casts its
2 The functions of the Immigration and Naturalization Service, previously part of the Department of Justice, were transferred to the Department of Homeland Security upon its creation. See Homeland Security Act of 2002, Pub. L. No. 107-296, §§ 402(3), 441, 116 Stat. 2178, 2192.
7

argument in absolute terms, asserting that illegal immigration categorically cannot be a subject of community-oriented policing. Los Angeles offers three principal and equally unpersuasive arguments in support of this position.
First, the City advances an untenably narrow notion of community-oriented policing as only the continuous and direct interaction between a law enforcement officer and a community member. Under this theory, whenever direct interaction ceases, so does community-oriented policing. See LA Br. 38; see also id. at 42. That is, of course, not the case, and the City cannot provide a single citation in support of this notion. The philosophy of community-oriented policing does not anticipate that law enforcement officers will fail to act on the fruits of the cooperative efforts. Nor does it require that a locality deputize community members so that they can take part in raids or arrests.
There is thus absolutely no basis for the City’s assertion that an immigration enforcement effort could not “implement community policing strategies.” LA Br. 39. Analogously, a police force might work with the community to identify the sources of drug-related crime and to determine which gangs or drug dealers are at the root of the problem. Officers might then consult with members of the community to determine how enforcement efforts might be most effective and least disruptive. But when the police ultimately conduct a targeted raid, they presumably will not involve community members in the operation. Similarly, an operation to enforce the immigration laws
8

might be made possible by, and its implementation informed by, community input, but community members would not participate in the operation itself.
Second, Los Angeles contends that illegal immigration is a civil rather than a criminal matter, and that it therefore cannot be a subject of community-oriented policing. See LA Br. 42. This misses the point. The relevant question is whether an applicant can demonstrate that its plan incorporates the principles of communityoriented policing, not whether the result of community-oriented policing efforts is criminal prosecution. Indeed, the very root of community oriented policing is the notion that local law enforcement will be involved in more than reactive crime fighting—it will be involved throughout the community, through many partnerships, in an effort to build relationships and prevent crime. For example, no one—not even Los Angeles—questions that community-oriented policing may properly be used to address “Traffic/Pedestrian Safety Problems,” another focus area in the fiscal year 2017 CHP, without regard for whether issues such as “traffic congestion” are criminal or civil in nature. See ER 73-74. Community-oriented policing can be used to resolve both criminal and civil issues that are of concern to a local community and police force. This is especially true where, as here, civil enforcement has a direct relationship to crime, given that illegal immigration and local crime are overlapping and integrated concerns in many communities. See Arizona v. United States, 567 U.S. 387, 397-98 (2012). That connection is particularly apparent with respect to those aliens a jurisdiction has already taken into custody for its own criminal law enforcement
9

purposes. A comprehensive approach that uses all available tools to combat criminal conduct in a community is entirely consistent with basic principles of communityoriented policing.
Third, Los Angeles advances the equally unfounded contention that the authorizing statute by its terms forecloses the use of community-oriented policing to address concerns stemming from illegal immigration. The City notes that immigration is not specifically mentioned in the statute, LA Br. 42-43, but it does not seriously contend that concerns relating to illegal immigration therefore cannot be the subject of a grant proposal. The statute does not and need not enumerate every area that may be of concern to a community and may also be an area of particular concern to national law enforcement. Los Angeles presumably does not believe that the absence of a specific reference to drugs in the community (a fiscal year 2017 focus area, see ER 71), or to addressing issues faced by “children exposed to violence” (a subarea of the fiscal year 2017 “Child and Youth Safety” focus area, see ER 70-71), means that Congress did not intend that grant funds be expended on such projects.
In making this textual argument, Los Angeles is also obliged to read illegal immigration out of the areas encompassed by “homeland security,” which Congress specified as an area appropriate for community-oriented policing. Los Angeles cannot, of course, suggest that immigration is not a homeland security issue. Instead, it asserts that the Congress implicitly narrowed the normal understanding of “homeland security” because the statute refers to hiring officers “to perform
10

intelligence, anti-terror, or homeland security duties.” 34 U.S.C. § 10381(b)(4). See LA Br. 46-47. Because “homeland security” is preceded by “intelligence” and “antiterror,” the City reasons, homeland security is a proper subject of communityoriented policing only insofar as it relates to intelligence and anti-terrorism activities.
Los Angeles does not explain how the area of “homeland security,” which is referred to in the disjunctive, can properly be read out of the statute in this manner. The City seeks to justify this excision on the ground that the Department’s website does not provide an exhaustive list of the ways community-oriented policing can be used to address homeland security concerns. See LA Br. 43-44. But the City does not explain how the specificity of the Department’s website can be used to alter the text of the statute, particularly in the context of this facial challenge. In any event, the level of detail on the Department’s website at a particular time and the fact that the Illegal Immigration focus area was introduced in fiscal year 2017 are of no apparent relevance to the City’s statutory argument.
2. Los Angeles also advances a narrower version of its facial challenge addressed only to the text of the fiscal year 2017 CHP application, asserting that it references activities that do not involve community-oriented policing. LA Br. 37-39. This argument, too, fails. The Illegal Immigration focus area asked applicants to “specify your focus on partnering with federal law enforcement to combat illegal immigration through information sharing, 287(g) partnerships, task forces and honoring detainers.” ER 24. Los Angeles does not even attempt to explain why
11

“information sharing” or “task forces” cannot employ community-oriented policing strategies. Information sharing is far more effective when there are strong relationships between local police and the community. Similarly, task forces can make their efforts more effective by engaging with the community to target their activities and increase public trust. Presumably Los Angeles does not believe that an applicant in the “Child and Youth Safety” focus area that intended to create a task force to combat the influence of gangs among local youths, see ER 71, should be barred from receiving funds on the theory that its activities do not involve community-oriented policing. The City provides no reason to believe that a different result should obtain because the subject matter is illegal immigration rather than gangs.
The City’s objection to the application’s mention of “287(g) partnerships,” ER 70, fails for similar reasons. These agreements, authorized by Section 287(g) of the Immigration and Nationality Act, permit local law enforcement officers to “perform a function of an immigration officer in relation to the investigation, apprehension, or detention of aliens in the United States.” 8 U.S.C. § 1357(g)(1). The City does not contest that community-oriented policing strategies may be used by law enforcement agencies engaged in investigating crimes or apprehending criminal offenders. There is no reason to presume that, when a law enforcement officer is performing those same functions under a Section 287(g) agreement, the same community-oriented policing techniques cannot be employed. A local law enforcement officer does not stop engaging with the community or enforcing local law when participating in a Section
12

287(g) agreement, and part of the value of a Section 287(g) agreement is that it empowers local law enforcement officers to address a broader range of issues they encounter in their communities. Nothing about a Section 287(g) agreement precludes the application of community-oriented policing principles. That jurisdictions choose to engage in these agreements indicates their desire to encourage immigration enforcement in their communities, even if Los Angeles does not share that desire.
The City contends that providing grant funds to an applicant that participates in a Section 287(g) agreement contravenes Congress’s intent that such agreements are carried out “at the expense of the State or political subdivision.” 8 U.S.C. § 1357(g)(1); see LA Br. 39-40. The City misunderstands the statute. Section 287(g) does not preclude the federal government from subsidizing participation in efforts undertaken pursuant to Section 287(g). The statute simply makes clear that states and localities may not demand reimbursement for expenses associated with their participation. A contrary reading would lead to absurd results. For example, if a jurisdiction used Department grant funds to purchase police equipment (e.g., radios), police officers would have to avoid using that equipment when engaged in efforts undertaken pursuant to Section 287(g). Further, the fact that jurisdictions are willing to expend their own funds under such agreements only underscores that many jurisdictions view combating illegal immigration as having beneficial effects on other law enforcement and public safety concerns in their communities.
13

Los Angeles also suggests that the application’s reference to “honoring detainers” is inappropriate. LA Br. 38-39. Detainers, like the other activities listed on the application, operate at the intersection of federal immigration enforcement and local criminal enforcement. An immigration detainer is a device that “serves to advise another law enforcement agency that [the Department of Homeland Security] seeks custody of an alien presently in the custody of that agency, for the purpose of arresting and removing the alien.” 8 C.F.R. § 287.7(a). Cooperation with detainers may therefore serve the broader public safety goals identified by a jurisdiction’s community-oriented policing proposal, including by ensuring that individuals already held in criminal custody and subject to removal do not reoffend in the community after their release.
Los Angeles underscores the error of its analysis by largely ignoring the Department’s statutory authority to consider whether an application “identif[ies] related governmental and community initiatives which complement or will be coordinated” with a proposal for community-oriented policing funds. 34 U.S.C. § 10382(c)(4). As this provision makes clear, once an applicant demonstrates that its proposal incorporates the principles of community-oriented policing, the Department may accord weight to applications demonstrating that a jurisdiction’s communityoriented policing efforts will complement other law enforcement initiatives, including federal efforts to enforce the immigration laws. Thus, even if the City were correct that some of the referenced activities are not themselves part of community-oriented
14

policing, they are valid as complementary policies. For example, a jurisdiction’s decision to cooperate with detainer requests would further its broader community policing efforts in the Illegal Immigration focus area by ensuring that, once a jurisdiction has taken a removable alien into custody in the course of its communityoriented policing activities, that alien is not returned to the community because of a failure to respond to a detainer.
Finally, even assuming that the premise of the City’s argument about the fiscal year 2017 application were correct, it could not support the district court’s permanent injunction forbidding the Department from offering the Illegal Immigration focus area at all. The City’s narrower argument does not demonstrate that a focus area on illegal immigration is facially invalid. Nor does it show that all of the specific activities mentioned in connection with that focus area on the fiscal year 2017 application are not appropriately subject to community-oriented policing. Thus, if this Court accepts the City’s narrower argument, the injunction should be correspondingly narrowed.
B. The City Offers No Basis for Concluding That the Department May Not Consider Community-Related Law Enforcement Conduct in Awarding Competitive Law Enforcement Grants Concerning Community-Oriented Policing.
1. Los Angeles recognizes, as it must, that the Department has substantial discretion to set application criteria and to score applications. See, e.g., LA Br. 27, 48. In exercising that discretion, the Department can properly give some weight to an applicant’s cooperation with federal law enforcement efforts related to community-
15

oriented policing. Indeed, the statute specifically contemplates that the Department will favor applications that identify “related governmental and community initiatives” that will complement the objectives of the program. 34 U.S.C. § 10382(c)(4). The Department’s broad discretion in this regard encompasses the bonus points given to jurisdictions that provide access to, and notice of the release dates of, aliens held in local criminal custody.
In determining which jurisdictions should receive competitive grants to further community-oriented policing, it is well within the Department’s discretion to prefer jurisdictions that are assisting federal efforts to remove from the community illegal aliens held in local criminal custody, rather than undermining those efforts by returning those individuals to a community in which they have no legal right to reside. The purpose of that cooperation is to ensure that criminal aliens who are held in local criminal custody can be transferred to federal immigration authorities in an orderly manner, and that federal officials have an opportunity to conduct their investigations in a controlled environment that helps keep the community safe. A locality that does not qualify for the bonus points will increase the prevalence of hostile encounters in the local community when federal officials are forced to seek to detain or interrogate aliens on the streets. In addition, cooperation with federal officials helps to ensure that removable individuals held in local criminal custody and of interest to federal immigration officials are not released into the community, thereby reducing the burdens on local communities and law enforcement that result if those individuals
16

reoffend. Those jurisdictions that choose to provide the forms of cooperation envisioned by the bonus points have determined that they can better foster community confidence in law enforcement and the rule of law by facilitating the removal of criminal aliens, rather than returning them to the community.
The City’s argument to the contrary is belied by its acceptance of the bonus points awarded to jurisdictions that have experienced a “catastrophic event.” ER 22, ¶ 18; see LA Br. 49-50. As the City acknowledges, the Department has broad discretion in assessing CHP applications to consider “public safety need” and the harm created by “divert[ing] resources away from community policing programs to respond” to a catastrophic event. LA Br. 50. It is anomalous to suggest that the Department can consider the increased need for police resources based on circumstances outside the applicant’s control, but cannot consider the applicant’s own determination to release aliens from local criminal custody directly into the community, thus taxing law enforcement resources in addressing crimes committed by those aliens who reoffend.
The City candidly admits that the COPS Office “has considerable discretion to allocate grants in the way it reasonably determines will foster a form of policing that relies on collaborative interactions between local law enforcement and the community.” LA Br. 24. The COPS Office has determined that cooperation in removing criminals from the community is one way to foster better confidence in law enforcement and the rule of law, thereby enhancing community cooperation. Los
17

Angeles has made a different policy determination about how to conduct its law enforcement operations relative to criminal aliens in its community, concluding that ignoring immigration enforcement is more likely to enhance community relationships. See LA Br. 14. Regardless of the validity of the City’s policy judgment, it may not impose that judgment on the COPS Office, or on other jurisdictions that may make a different policy call. As the City acknowledges, the CHP is designed to enable “law enforcement agencies . . . to increase their community policing capacity and crime prevention efforts.” LA Br. 6 (quoting ER 228). Working with federal immigration officials to remove, where appropriate, aliens in local criminal custody complements the goals of community-oriented policing by ensuring that those individuals will not reoffend in the community.
2. Los Angeles notes that 34 U.S.C. § 10381(c)(2) and (c)(3) provide that “the Attorney General may give preferential consideration, where feasible,” to applicants from states with certain human-trafficking laws. From this specific grant of authority, the City draws the negative inference that the Department generally may not otherwise give preferential consideration to jurisdictions based on their law enforcement practices, such as their cooperation with federal immigration enforcement. LA Br. 28-29. The provisions, enacted as part of a separate piece of legislation to provide assistance to victims of human trafficking, cannot bear the extraordinary weight assigned by the City. See Justice for Victims of Trafficking Act of 2015, Pub. L. No. 114-22, tit. VI, § 601, 129 Stat. 227, 259. The City mistakenly
18

urges that these provisions would be superfluous if the Department already had authority to give preferred treatment to jurisdictions that had adopted such statutes. LA Br. 28-29. That Congress in separate legislation explicitly sought to encourage the Department to grant such preferences does not demonstrate a congressional judgment that authority would otherwise have been absent, and it says nothing at all about the understanding of the Congress that enacted 34 U.S.C. § 10381.
The City’s reliance on 34 U.S.C. § 10228(a) is similarly misplaced. That provision states that the Department may not, through its grants, “exercise any direction, supervision, or control over any police force . . . of any State or political subdivision thereof.” Id.; see LA Br. 32. All scoring considerations encourage an applicant’s police force to take or refrain from taking certain actions, and Congress expressly contemplated that the Department of Justice could take account of partnerships with other entities such as the federal government. See 34 U.S.C. § 10382(c)(4). As described in the very case on which Los Angeles relies, the purpose of § 10228(a) was much more modest: to avoid “the establishment of a federal police force” by allowing federal authorities to control the “routine operations of local police forces,” such as by “prescribing the type of shoes and uniforms to be worn” or “the type or brand of ammunition to be purchased.” Ely v. Velde, 451 F.2d 1130, 1136-37 (4th Cir. 1971) (quotation marks and brackets omitted). Awarding additional consideration to states and localities that provide basic cooperation with federal authorities does not remotely implicate these concerns.
19

Finally, Los Angeles urges that absent a specific authorization, federalismrelated canons of interpretation preclude the Department from awarding bonus points for law enforcement cooperation. See LA Br. 30-31. But the City does not explain how the bonus points “alter the ‘usual constitutional balance between the States and the Federal Government,’” Gregory v. Ashcroft, 501 U.S. 452, 460 (1991) (quoting Will v. Michigan Dep’t of State Police, 491 U.S. 58, 65 (1989)), or require the “surrender” of “powers or functions reserved to the States,” Virginia Dep’t of Educ. v. Riley, 106 F.3d 559, 566 (4th Cir. 1997) (en banc). At issue here are bonus points awarded in the scoring of a discretionary law enforcement grant. Seeking the bonus points is optional, and, notwithstanding the City’s rhetoric, declining to seek the points does not preclude an applicant from receiving a CHP grant. Indeed, the top-scoring jurisdiction in the City’s category, like several other funded jurisdictions, did not receive the bonus points. See ER 193. And Los Angeles makes no attempt to reconcile its rhetoric of “surrender” with the relatively small size of the grants at issue.
C. The City’s Invocation of the Spending Clause and the Administrative Procedure Act Adds Nothing to its Argument.
The City’s contentions with regard to the Spending Clause and the Administrative Procedure Act restate its statutory arguments and fail for the same reasons. Los Angeles does not contend that the two provisions for obtaining additional points violate the Spending Clause if they were, as we have shown,
20

authorized by Congress. Similarly, the arguments regarding the reasonableness of the conditions are premised on the Department’s asserted want of authority.
1. Los Angeles appears to agree that the Spending Clause has no independent analytic role in this case; its discussion of Spending Clause principles largely incorporates by reference its statutory argument that community-oriented policing cannot be used to address local concerns connected to illegal immigration. See LA Br. 52-53. There is no dispute that, in the context of a law enforcement grant, Congress is entitled to give preferential treatment to jurisdictions with law enforcement programs that do not interfere with federal law enforcement. See Mayweathers v. Newland, 314 F.3d 1062, 1067 (9th Cir. 2002) (conditions on spending need only bear “some relationship to the purpose of the federal spending”). The question is simply whether the Department acted within its statutorily delegated discretion in offering the Illegal Immigration focus area and the bonus points: for the reasons already discussed, the answer is yes.
2. The City’s Administrative Procedure Act (APA) argument is likewise beside the point. Los Angeles’s primary complaint under the APA is identical to its statutory argument: that community-oriented policing and immigration enforcement are incompatible. For example, in urging that the Illegal Immigration focus area is impermissible, the City argues that the Department lacks “a reasoned basis for concluding that community policing is a viable strategy for engaging in civil
21

immigration enforcement,” LA Br. 58, and cites various evidence that, in its view, demonstrates the correctness of its preferred policy, see id. at 54-58.
As explained, however, the statutory scheme confirms that immigration, like other law enforcement issues, can be addressed through community-oriented policing. Thus, the decision at issue is the Department’s choice to offer jurisdictions the option to advance proposals in the Illegal Immigration focus area. As to this decision, the City’s asserted evidence is simply irrelevant. The Department is under no obligation to examine studies to determine whether immigration enforcement always and everywhere has a positive or negative effect on “police-community relationships.” LA Br. 58. Instead, the Department’s charge is to review a particular jurisdiction’s application, examining whether and how effectively a particular jurisdiction’s proposal reorients or enhances its “involvement in or commitment to community-oriented policing.” 34 U.S.C. § 10382(c)(10).
Jurisdictions that share the City’s view need not choose the Illegal Immigration focus area. But Los Angeles cannot use the APA as a vehicle for imposing its policy judgments about the relationship between immigration enforcement and communityoriented policing on other localities that have different views based on the needs of their communities. And determinations about whether grant funds are best spent in this area or some other are highly discretionary and based on normative assessments rather than empirical predictions. Cf. 5 U.S.C. § 553(a)(2) (exempting grants from the notice and comment rulemaking procedures of the APA).
22

The City’s argument about the bonus points suffers from the same flaws. The bonus points are provided to jurisdictions that permit federal immigration officials access to individuals who the jurisdictions are holding for their own criminal justice purposes, and, upon request, notice before those individuals are released back into the community. It is eminently reasonable for the Department to consider it sufficiently related to community-oriented policing whether a jurisdiction is releasing individuals whom the jurisdiction itself suspected of criminal conduct back into the community without providing federal officials with notice and access to those aliens. That judgment—which, as discussed, is permissible under the statute—does not depend on factual determinations of the sort Los Angeles demands. It simply requires asking whether the Department should blind itself to the degree of cooperation provided by localities to federal law enforcement efforts when distributing federal grants.
23

CONCLUSION The judgment of the district court should be reversed.
Respectfully submitted, CHAD A. READLER
Acting Assistant Attorney General NICOLA T. HANNA
United States Attorney
MARK B. STERN DANIEL TENNY KATHERINE TWOMEY ALLEN s/ Brad Hinshelwood BRAD HINSHELWOOD
Attorneys, Appellate Staff Civil Division, Room 7256 U.S. Department of Justice 950 Pennsylvania Avenue NW Washington, DC 20530 (202) 514-7823 bradley.a.hinshelwood@usdoj.gov
July 2018
24

CERTIFICATE OF COMPLIANCE This brief complies with the type-volume limit of Federal Rule of Appellate Procedure 32(a)(7)(B) because it contains 5,543 words. This brief also complies with the typeface and type-style requirements of Federal Rule of Appellate Procedure 32(a)(5)-(6) because it was prepared using Microsoft Word 2013 in Garamond 14point font, a proportionally spaced typeface.
s/ Brad Hinshelwood Brad Hinshelwood

CERTIFICATE OF SERVICE I hereby certify that on July 17, 2018, I electronically filed the foregoing brief with the Clerk of the Court for the United States Court of Appeals for the Ninth Circuit by using the appellate CM/ECF system. Participants in the case are registered CM/ECF users, and service will be accomplished by the appellate CM/ECF system.
s/ Brad Hinshelwood Brad Hinshelwood

 </s> Case 2:17-cv-07215-R-JC Document 93 Filed 09/13/18 Page 1 of 5 Page ID #:2921

1

NO JS-6

2

3

4

5

6

7

UNITED STATES DISTRICT COURT

8

CENTRAL DISTRICT OF CALIFORNIA

9

10 CITY OF LOS ANGELES,

11
12 v.
13

Plaintiff,

14 JEFFERSON B. SESSIONS, III.; et al.,

15

Defendants.

16

) CASE NO. CV 17-7215-R ) ) ORDER GRANTING PLAINTIFF’S ) APPLICATION FOR PRELIMINARY ) INJUNCTION ) ) ) ) )

17

Before the Court is Plaintiff’s Application for Preliminary Injunction (Dkt. No. 83), filed

18 on July 18, 2018. Having been thoroughly briefed by both parties, this Court took the matter

19 under submission on September 12, 2018.

20

The federal grant at issue is awarded by the Edward Byrne Memorial Justice Assistance

21 Grant Program (the “Byrne JAG grant”). This grant supports state and local law enforcement

22 efforts by providing additional funds for personnel, equipment, training, and other criminal justice

23 needs. 34 U.S.C. § 10152. The Byrne JAG grant is a formula grant meaning the funds are

24 awarded according to a formula provided by statute based on the state’s population and rate of

25 violent crime. 34 U.S.C. § 10156. Plaintiff City of Los Angeles has been a recipient of the Byrne

26 JAG grant every year since 1997, and each year has received more than $1 million in funding. In

27 2017, Defendant Attorney General announced immigration compliance requirements that the

28 Bureau of Justice Assistance (“BJA”) would be imposing on Byrne JAG applicants to render

Case 2:17-cv-07215-R-JC Document 93 Filed 09/13/18 Page 2 of 5 Page ID #:2922

1 certain jurisdictions ineligible for funds if they did not change their policies and operations. The

2 announcement explained that, “[f]rom now on, the Department will only provide Byrne JAG

3 grants to cities and states that comply with federal law, allow federal immigration access to

4 detention facilities [“Access Condition”], and provide 40 hours’ notice before they release an

5 illegal alien wanted by federal authorities [“Notice Condition”].” The conditions at issue here are

6 the Access Condition and Notice Condition. Plaintiff City of Los Angeles has not changed its

7 policies and operations, and as a result has not received Byrne JAG funding for the 2017 fiscal

8 year. Now before this Court, Plaintiff seeks a preliminary injunction to enjoin the Access and

9 Notice Conditions imposed by Defendants upon the Byrne JAG grant.

10

A preliminary injunction is “an extraordinary remedy that may only be awarded upon a

11 clear showing that the plaintiff is entitled to such relief.” Winter v. Natural Res. Def. Council,

12 Inc., 555 U.S. 7, 22 (2008). A party is entitled to injunctive relief upon a showing that: (1) it is

13 likely to succeed on the merits, (2) it is likely to suffer irreparable harm in the absence of

14 preliminary relief, (3) the balance of equities tips in the moving party’s favor, and (4) an

15 injunction is in the public interest. Id. at 20. This Court finds that Plaintiff is entitled to a

16 preliminary injunction.

17

First, the Court must determine the likelihood that Plaintiff will succeed on the merits. An

18 agency “has no power to act . . . unless and until Congress confers power upon it.” Louisiana

19 Pub. Serv. Comm’n v. F.C.C., 476 U.S. 355, 374 (1986). Moreover, Congress may delegate

20 authority and discretion to the Executive Branch through statute. See Whitman v. Am. Trucking

21 Ass’ns, 531 U.S. 457, 489 (2001). But, if an agency “act[s] improperly . . . what they do is ultra

22 vires.” City of Arlington, Tex. v. F.C.C., 569 U.S. 290, 291 (2013). Therefore, we must look to

23 the statute itself to determine whether Congress has conveyed authority to the Attorney General to

24 impose conditions on the Byrne JAG grant. “If the statutory language is unambiguous, in the

25 absence of a clearly expressed legislative intent to the contrary, that language must ordinarily be

26 regarded as conclusive.” Russello v. United States, 464 U.S. 16, 20 (1983).

27

Here, the Byrne JAG program is codified at 34 U.S.C. §§ 10151-10158. The authority

28 explicitly granted to the Attorney General within the Byrne JAG statute is limited. The statute

2

Case 2:17-cv-07215-R-JC Document 93 Filed 09/13/18 Page 3 of 5 Page ID #:2923

1 provides that the Attorney General is authorized to determine the “form” of the application, 34

2 U.S.C. § 10153(a); “reasonably require . . . the applicant [to] maintain and report . . . data, records,

3 and information (programmatic and financial),” 34 U.S.C. § 10153(a)(4); and “develop

4 guidelines” for “a program assessment . . . in coordination with the National Institute of Justice,”

5 34 U.S.C. § 10152(c)(1). The language of the statutes gives no indication that DOJ is authorized

6 to add civil immigration conditions to those just mentioned. Although Congress granted the

7 Attorney General the power to carry out very limited actions, it did not “grant the Attorney

8 General the authority to impose conditions that require states or local governments to assist in

9 immigration enforcement, nor to deny funds to states or local governments for the failure to

10 comply with those conditions.” City of Chicago v. Sessions, 888 F.3d 272, 284. (7th Cir. 2018).

11

To further show that the program is not to be administered according to the Attorney

12 General’s discretion, Congress structured the Byrne JAG program as a formula grant. 34 U.S.C.

13 §§ 10151-58. And formula grants “are not awarded at the discretion of a state or federal agency,

14 but are awarded pursuant to a statutory formula.” City of Los Angeles v. McLaughlin, 865 F.2d

15 1084, 1088 (9th Cir. 1989). The statutory formula requires the Attorney General to give 50% of

16 available funds to each State in proportion to its population, with the remaining 50% to be given to

17 each State in proportion to its violent crime rate. 34 U.S.C. §10156(a). As stated above, the

18 authority granted to the Attorney General within the Byrne JAG statute regarding distribution of

19 funds is extremely limited and leaves little room for discretion.

20

The only argument presented by DOJ in other cases to support its theory that it has

21 authority to impose the Notice and Access Conditions is 34 U.S.C. § 10102(a)(6). This provision

22 of the statute states that the Assistant Attorney General “shall . . . exercise such other powers and

23 functions as may be vested in the Assistant Attorney General pursuant to this chapter or by

24 delegation of the Attorney General, including special conditions on all grants, and determining

25 priority purposes for formula grants.” 34 U.S.C. § 10102(a)(6) (emphasis added). However, §

26 10102(a)(6) must be viewed in its context of the statute as a whole, rather than as an isolated

27 provision. Viewed in context, the provision allows the Attorney General to delegate powers to the

28 Assistant Attorney General to aid in administering the Office of Justice Programs, whereas the

3

Case 2:17-cv-07215-R-JC Document 93 Filed 09/13/18 Page 4 of 5 Page ID #:2924

1 Byrne JAG grant is a Bureau of Justice Assistance Program that is codified in a different

2 subchapter of Chapter 101 and isolated from other discretionary grants within its own subchapter.

3 Reading § 10102(a)(6) to authorize the Attorney General to impose conditions on all grants under

4 the entire chapter contradicts the explicit grants of authority in other sections of the statute.

5

Here, the Notice and Access Conditions exceed statutory authority, and trying to impose

6 such conditions is a violation of the separation of powers doctrine and ultra vires. Further,

7 because Congress did not authorize the Attorney General to impose such conditions, this Court

8 finds it unnecessary to determine whether the conditions violate the Spending Clause or the

9 Administrative Procedure Act. Therefore, regarding the Notice and Access Conditions, Los

10 Angeles has shown a likelihood of success on the merits.

11

Next, the Court must assess the possibility of irreparable injury to Plaintiff in the absence

12 of injunctive relief. Irreparable injury must be more than merely speculative in order to warrant a

13 preliminary injunction. See Herb Reed Enters., LLC v. Florida Entm’t Mgmt., Inc., 736 F.3d

14 1239, 1249 (9th Cir. 2013).

15

Here, Plaintiff has made a showing of harm that is sufficient to meet the second element of

16 the Winter test. While Los Angeles makes many arguments as to how it will suffer irreparable

17 injury absent an injunction, this Court finds most persuasive its argument that it is faced with an

18 impossible choice: either it must certify compliance with unconstitutional and unlawful directives

19 that impinge on the City’s sovereignty, damage community trust, and harm public safety, or it will

20 lose congressionally authorized Byrne JAG funding. See City of Chicago v. Sessions, 264 F.

21 Supp. 3d 933, 950 (N.D. Ill. 2017) (“[A] ‘Hobson’s choice’ can establish irreparable harm.”). By

22 agreeing to participate in federal civil immigration efforts in order to receive Byrne JAG funds,

23 Los Angeles would have to compromise its longstanding policy that involving LAPD in civil

24 immigration enforcement diminishes community trust and undermines public safety. Like the

25 Seventh Circuit held in City of Chicago v. Sessions, some localities “may see such cooperation as

26 impeding the community relationships necessary to identify and solve crimes.” 888 F.3d 272, 282

27 (7th Cir. 2018). “The harm to the City’s relationship with the immigrant community if it should

28 accede to the conditions is irreparable.” City of Chicago, 264 F. Supp. 3d at 950. In addition, Los

4

Case 2:17-cv-07215-R-JC Document 93 Filed 09/13/18 Page 5 of 5 Page ID #:2925

1 Angeles is irreparably harmed because the conditions deprive it of Byrne JAG funding for the

2 2017 fiscal year, meaning it is barred from receiving a funding opportunity which it has been, and

3 otherwise would be, entitled to based on Congress’ statutory formula. Therefore, Plaintiff has

4 made a showing of irreparable harm.

5

Finally, Plaintiff must show that the balance of equities tips in its favor and that a

6 preliminary injunction is in the public interest. Denying the preliminary injunction in this case

7 would cause substantial hardship to Plaintiff, which would be faced with the choice of acceding to

8 DOJ’s unlawful conditions or being deprived of significant funding needed for its local law

9 enforcement efforts. Ultimately, the public interest is better served if the City is not forced to

10 choose between foregoing the Byrne JAG grant funds and losing its rapport with the immigrant

11 community. Defendants argue that the conditions promote operational efficiency and are

12 authorized by federal law, but as explained above, the conditions imposed are ultra vires. As

13 stated by the Ninth Circuit, it is “always in the public interest” to issue an injunction to “prevent

14 the violation of a party’s constitutional rights.” Melendres v. Arpaio, 695 F.3d 990, 1002 (9th Cir.

15 2012). Accordingly, this Court finds that balancing the equities and weighing the public interest

16 tips the scale in favor of Plaintiff, and thus, Plaintiff in entitled to a preliminary injunction.

17

IT IS HEREBY ORDERED that Plaintiff’s Application for Preliminary Injunction is

18 GRANTED. (Dkt. No. 83).

19 Dated: September 13, 2018.

20

21

___________________________________

22

MANUEL L. REAL

23

UNITED STATES DISTRICT JUDGE

24

25

26

27

28

5

 </s> Case 2:17-cv-07215-R-JC Document 94 Filed 09/17/18 Page 1 of 7 Page ID #:2926

1

NO JS-6

2

3

4

5

6

7

8

9

UNITED STATES DISTRICT COURT

10

CENTRAL DISTRICT OF CALIFORNIA

11

12 CITY OF LOS ANGELES,

) CASE NO. CV 17-7215-R )

13

Plaintiff,

) ORDER DENYING DEFENDANTS’

) MOTION TO DISMISS

14

v.

)

)

15 JEFFERSON B. SESSIONS, III.; et al.,

)

16

)

Defendants.

)

17

)

)

18

Before the Court is Defendants’ Motion to Dismiss, which was filed on July 27, 2018.

19 (Dkt. No. 85). Having been fully briefed by both parties, this Court took the matter under

20 submission on September 12, 2018.

21

The federal grant at issue in Defendants’ Motion to Dismiss is awarded by the Edward

22 Byrne Memorial Justice Assistance Grant Program (the “Byrne JAG grant”). This grant supports

23 state and local law enforcement efforts by providing additional funds for personnel, equipment,

24 training, and other criminal justice needs. 34 U.S.C. § 10152. The Byrne JAG grant is a formula

25 grant meaning the funds are awarded according to a formula provided by statute based on the

26 state’s population and rate of violent crime. 34 U.S.C. § 10156. Plaintiff City of Los Angeles

27 (“Los Angeles”) has been a recipient of the Byrne JAG grant every year since 1997, and each year

28 has received more than $1 million in funding. In 2017, Defendant Attorney General announced

Case 2:17-cv-07215-R-JC Document 94 Filed 09/17/18 Page 2 of 7 Page ID #:2927

1 immigration compliance requirements that the Bureau of Justice Assistance (“BJA”) would be

2 imposing on Byrne JAG applicants to render certain jurisdictions ineligible for funds if they did

3 not change their policies and operations to be in compliance. The announcement explained that,

4 “[f]rom now on, the Department will only provide Byrne JAG grants to cities and states that

5 comply with federal law, allow federal immigration access to detention facilities [“Access

6 Condition”], and provide 40 hours’ notice before they release an illegal alien wanted by federal

7 authorities [“Notice Condition”].” Los Angeles has not changed its policies and operations, and as

8 a result has not received Byrne JAG funding for the 2017 fiscal year. Now before this Court,

9 Defendants seek to dismiss Counts One, Two, and Three of Plaintiff’s Complaint.

10

Defendant argues in its Motion to Dismiss that Plaintiff lacks standing and ripeness to

11 bring Counts One, Two, and Three in its Complaint because Plaintiff has not shown injury in fact.

12 Defendants also argue that Plaintiff’s allegation that the Notice and Access Conditions are ultra

13 vires and violate the Constitution’s separation of powers (Count One) should be dismissed under

14 Federal Rule of Civil Procedure 12(b)(6) because Defendants were authorized to impose these

15 Conditions. Next, Defendants argue that Plaintiff’s allegation that the Notice and Access

16 Conditions violate the Spending Clause (Count Two) should be dismissed under Federal Rule of

17 Civil Procedure 12(b)(6) because the conditions are consistent with the Spending Clause. Finally,

18 Defendants argue that Plaintiff’s allegation that the Notice and Access Conditions are arbitrary or

19 capricious in violation of the Administrative Procedure Act (“APA”) (Count Three) should be

20 dismissed under Federal Rule of Civil Procedure 12(b)(6) because Plaintiff does not challenge

21 “final agency action” as required under the APA.

22 Jurisdiction

23

Before turning to the merits of the case, this Court first addresses the issue of standing

24 under Rule 12(b)(1). “A party invoking federal jurisdiction has the burden of establishing that it

25 has satisfied the case-or-controversy requirement of Article III of the Constitution; standing is a

26 ‘core component’ of that requirement.” D’Lil v. Best Western Encina Lodge & Suites, 538 F.3d

27 1031, 1036 (9th Cir. 2008). Standing requires (1) injury in fact, (2) causation, and (3)

28 redressability. Lujan v. Defenders of Wildlife, 504 U.S. 555, 560-61 (1992). In the context of a

2

Case 2:17-cv-07215-R-JC Document 94 Filed 09/17/18 Page 3 of 7 Page ID #:2928

1 statutory violation, the Plaintiff must have suffered concrete injury. Spokeo, Inc. v. Robins, 136 S.

2 Ct. 1540, 1549 (2016).

3

Here, Defendant challenges Plaintiff’s standing based on the injury in fact requirement.

4 Because the challenge is facial, this Court assumes the truth of the allegations in the Complaint

5 and looks no further. See Ewing v. SQM US, Inc., 211 F. Supp. 3d 1289, 1292 (S.D. Cal. 2016).

6 The Attorney General believes Plaintiff’s challenge to the conditions is premature because the

7 Office of Justice Programs (”OJP”) has not yet reached a final decision on whether to award Los

8 Angeles funds under the Byrne JAG grant, meaning the OJP has not yet consummated any “final

9 agency action” that is ripe for judicial review. However, this argument misses the mark. Plaintiff

10 is not challenging the Attorney General’s unfinalized decision whether to award the funds, but

11 instead the decision to impose the Notice and Access Conditions on the Byrne JAG grant.

12

In the context of judicial review under the Administrative Procedure Act (“APA”), for

13 agency action to be considered “final,” two conditions must be met: (1) the imposition of the

14 Conditions must “mark the consummation of the agency’s decisionmaking process,” and cannot

15 be merely tentative, and (2) the imposition of the Conditions must be an act “by which ‘rights or

16 obligations have been determined,’ or from which ‘legal consequences will flow.’” Bennett v.

17 Spear, 520 U.S. 154, 177-78 (1997).

18

Both requirements are clearly met here. As for the first requirement, the imposition of

19 these Conditions is neither tentative nor interlocutory in nature. Alan Hanson, the then-Acting

20 Assistant Attorney General for the Office of Justice Programs at the DOJ, stated in his declaration

21 that every 2017 fiscal year award will include the Conditions. See City of Chicago v. Sessions,

22 2018 WL 3608564, at *5 (“[T]he Attorney General’s attachment of the Conditions is the end

23 result of his decision-making process on this score.”). Turning to the second requirement, the

24 “Conditions attached to the Byrne JAG funds trigger important legal and practical consequences.”

25 Id. Specifically, Los Angeles must “choose between accepting the award”―to which it is

26 statutorily entitled―“with the Conditions or forgoing the award in favor of maintaining the City’s

27 policy preferences.” Id. In sum, legal consequences clearly flow from the imposition of the

28 Conditions. Therefore, because most requirements have been met, this Court finds that the

3

Case 2:17-cv-07215-R-JC Document 94 Filed 09/17/18 Page 4 of 7 Page ID #:2929

1 Attorney General’s decision to impose the Conditions constitutes final agency action that is ripe

2 for judicial review.

3

As for the other two claims at issue, Plaintiff’s injury is both impending and substantially

4 likely to occur. Under the 2017 fiscal year Byrne JAG formula grant, Los Angeles is expected to

5 receive $1.9 million, with $1.5 million allocated directly to the City and the remainder allocated to

6 the County of Los Angeles as a sub-grantee. This is based on previous years’ funds award and the

7 statutory formula. Because the Attorney General has stated that the Department will only provide

8 Byrne JAG grants to cities and states that accept and impose the Notice and Access Conditions,

9 Los Angeles would be forced to certify to those conditions and that requirement alone is sufficient

10 to establish standing. Therefore, this Court rejects Defendants’ contention that Plaintiff lacks

11 standing required to qualify for judicial review.

12 Count One: Violation of Separation of Powers / Ultra Vires Agency Action

13

This Court next addresses Defendants’ argument that Plaintiff’s separation of powers /

14 ultra vires claim should be dismissed under Rule 12(b)(6). Dismissal under Rule 12(b)(6) is

15 proper when a complaint exhibits either “the lack of a cognizable legal theory or the absence of

16 sufficient facts alleged under a cognizable legal theory.” Balistreri v. Pacifica Police Dept., 901

17 F.2d 696, 699 (9th Cir. 1988). Under the heightened pleading standards of Bell Atlantic Corp. v.

18 Twombly, 550 U.S. 544 (2007) and Ashcroft v. Iqbal, 556 U.S. 662 (2009), a plaintiff must allege

19 “enough facts to state a claim to relief that is plausible on its face,” so that the defendant receives

20 “fair notice of what the…claim is and the grounds upon which it rests.” Twombly, 550 U.S. at

21 555, 570. The plaintiff must plead “factual content that allows the court to draw the reasonable

22 inference that the defendant is liable for the misconduct alleged.” Iqbal, 556 U.S. at 678. Courts

23 will not accept “[t]hreadbare recitals of the elements of a cause of action, supported by mere

24 conclusory statements. . . .” Id. “All allegations of material fact are taken as true and construed in

25 the light most favorable to the nonmoving party.” Sprewell v. Golden State Warriors, 266 F.3d

26 979, 988 (9th Cir. 2001) (citation omitted).

27

The Attorney General moves to dismiss Count One (ultra vires and separation of powers),

28 arguing that the Byrne JAG statute provides authority to impose the Conditions. On September

4

Case 2:17-cv-07215-R-JC Document 94 Filed 09/17/18 Page 5 of 7 Page ID #:2930

1 13, 2018, this Court granted Plaintiff’s Application for Preliminary Injunction, finding that

2 Plaintiff was likely to succeed on the merits of its claim that the Byrne JAG statute does not

3 authorize the Conditions imposed and, thus, are ultra vires and violate the Constitution’s

4 separation of powers. For the reasons set forth in the September 13, 2018 Order, this Court denies

5 Defendants’ Motion to Dismiss as to this claim. Defendants’ brief raises the same exact

6 arguments that have already been rejected by the Seventh Circuit and two federal district courts.

7 Plaintiff contends that the language of the statute cannot be interpreted to delegate authority to the

8 Attorney General to impose the Notice and Access Conditions on the Byrne JAG grant. For the

9 reasons already articulated by the courts in City of Chicago v. Sessions, 888 F.3d 272 (7th Cir.

10 2018) and City of Philadelphia v. Sessions, 280 F. Supp. 3d 579 (E.D. Pa. 2017), and similar

11 reasons adopted by this Court with respect to the COPS program, this Court finds that Plaintiff has

12 plausibly stated a claim that the Notice and Access Conditions are ultra vires and in violation of

13 the separation of powers. Therefore, Defendants’ Motion to Dismiss Count One of the Complaint

14 is DENIED.

15 Count Two: Violation of the Spending Clause

16

This Court next addresses Defendants’ argument that Plaintiff’s claim that the Conditions

17 violate the Spending Clause, should be dismissed under Rule 12(b)(6). “Congress may attach

18 conditions on the receipt of federal funds, and has repeatedly employed the power ‘to further

19 broad policy objectives by conditioning receipt of federal moneys upon compliance by the

20 recipient with federal statutory and administrative directives.’” South Dakota v. Dole, 483 U.S.

21 203, 206 (1987). However, the congressional conditions on the receipt of federal funds “must. . .

22 bear some relationship to the purpose of the federal spending.” New York v. U.S., 505 U.S. 144,

23 167 (1992). Of the four requirements that must be satisfied to comply with the Spending clause,

24 one requirement is that “. . . the conditions on receipt of federal funds must be reasonably related

25 to the articulated goal.” State of Nevada v. Skinner, 884 F.2d 445, 447 (1989).

26

Here, Plaintiff alleges that the Notice and Access Conditions violate the requirement that

27 the conditions on receipt of federal funds be reasonably related to the articulated goal. The

28 purpose of the Byrne JAG program is to support programs “for criminal justice,” 34 U.S.C. §

5

Case 2:17-cv-07215-R-JC Document 94 Filed 09/17/18 Page 6 of 7 Page ID #:2931

1 10152(a)(1). The statute lists the types of programs that the grant is to fund, and Plaintiff contends

2 that Congress did not include civil immigration regulation. Further, Plaintiff has pleaded facts

3 sufficient to show that the Conditions may not be reasonably related to the goal of enhancing local

4 criminal justice. As a result, the City has properly stated a claim that the Notice and Access

5 Conditions violate the Spending Clause. Therefore, Defendants’ Motion to Dismiss Count Two of

6 the Complaint is DENIED.

7 Count Three: Violation of the Administrative Procedure Act

8

Finally, this Court next addresses Defendants’ argument that Plaintiff’s claim that the

9 Conditions violate the APA, should be dismissed under Rule 12(b)(6). Defendants first argue that

10 this claim must be dismissed because Plaintiff does not challenge “final agency action” as

11 necessary under the APA. However, as analyzed above, this Court finds that the Conditions do

12 constitute “final agency action.”

13

Now focusing on the merits for purposes of Defendants’ Rule 12(b)(6) motion, Plaintiff

14 argues that the imposition of the Conditions should be set aside as “arbitrary, capricious, an abuse

15 of discretion, or otherwise not in accordance with law,” while Defendants argue that the

16 Conditions are reasonable because the conditions comport with the Spending Clause and are

17 authorized by statute. 5 U.S.C. § 706(2)(A).

18

An agency “must examine the relevant data and articulate a satisfactory explanation for its

19 action including a rational connection between the facts found and the choice made.” Motor

20 Vehicle Mfrs. Ass’n of U.S., Inc. v. State Farm Mut. Auto. Ins. Co., 463 U.S. 29, 43 (1983). And

21 an agency decision will be found to be arbitrary and capricious “if the agency has relied on factors

22 which Congress has not intended it to consider, entirely failed to consider an important aspect of

23 the problem, offered an explanation for its decision that runs counter to the evidence before the

24 agency, or is so implausible that it could not be ascribed to a difference in view or the product of

25 agency expertise.” Id.

26

Los Angeles alleges that the Justice Department has not only failed to “examine the

27 relevant data and articulate . . . a rational connection between the facts found and the choice

28 made,” Encino Motorcars, LLC v. Navarro, 136 S. Ct. 2117, 2125 (2016) (citation omitted), it has

6

Case 2:17-cv-07215-R-JC Document 94 Filed 09/17/18 Page 7 of 7 Page ID #:2932

1 also ignored substantial contrary evidence. Los Angeles further contends that there is an absence

2 of evidence supporting the imposition of the Condition. However, there is evidence that

3 undermines the agency’s action and, consequently, the agency’s stated explanation runs counter to

4 the evidence. Organized Vill. Of Kake v. U.S. Dep’t of Agric., 795 F.3d 956, 966 (9th Cir. 2015)

5 (“Agency action is arbitrary and capricious if the agency has . . . offered an explanation for its

6 decision that runs counter to the evidence before the agency.”). Los Angeles argues that the

7 Justice Department’s reliance on an Office of Inspector General (“OIG”) Report and the

8 Department’s “Backgrounder on Grant Requirements” is misplaced. Specifically, Los Angeles

9 cites to the court’s decision in City of Philadelphia v. Sessions holding that those documents “do

10 not demonstrate any adequate basis for the attachment of the Challenged conditions.” 309 F.

11 Supp. 3d 271, 324 (E.D. Pa. 2018). The OIG Report summarizes compliance with 8 U.S.C. §1373

12 and does not discuss the need to impose the Notice and Access Conditions on Byrne JAG awards.

13 Based on the facts alleged, this Court finds that the Plaintiff has plausibly stated a claim that the

14 Notice and Access Conditions are arbitrary and capricious. Therefore, Defendants’ Motion to

15 Dismiss Count Three of the Complaint is DENIED.

16

IT IS HEREBY ORDERED that Defendants’ Motion to Dismiss is DENIED. (Dkt. No.

17 85).

18 Dated: September 17, 2018.

19

20

___________________________________

21

MANUEL L. REAL UNITED STATES DISTRICT JUDGE

22

23

24

25

26

27

28

7

 </s> City of Los Angeles v. Barr, 929 F.3d 1163 (2019) 19 Cal. Daily Op. Serv. 6790, 2019 Daily Journal D.A.R. 6511

929 F.3d 1163 United States Court of Appeals, Ninth Circuit.
CITY OF LOS ANGELES, Plaintiff-Appellee, v.
William P. BARR, Attorney General; Alan R. Hanson, in his official capacity as Acting Assistant
Attorney General of the Office of Justice Programs; Russell Washington, in his official
capacity as Acting Director of the Office of Community Oriented Policing Services; United
States Department of Justice, Defendants-Appellants.
No. 18-55599 |
Argued and Submitted August 30, 2018 Pasadena, California |
Filed July 12, 2019
Synopsis Background: California sanctuary city filed action for injunctive relief against Attorney General, relating to feature of Department of Justice (DOJ) competitive federal grant program under Public Safety Partnership and Community Policing Act for community-oriented policing (COP) and other purposes, pursuant to which states and localities as grant applicants received bonus points if they selected an illegal immigration focus and certified their cooperation with federal immigration authorities with respect to access to detained aliens and notice of their expected release from custody. The United States District Court for the Central District of California, Manuel L. Real, J., 293 F.Supp.3d 1087, granted partial summary judgment to city and entered nationwide permanent injunction. Attorney General appealed.
Holdings: The Court of Appeals, Ikuta, J., held that:
bonus points feature of program did not violate Spending Clause;
bonus points feature did not violate Tenth Amendment;
bonus points feature did not exceed Attorney General’s
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delegated authority from Congress to specify conditions for grants; and
bonus points feature was supported by adequate reasons, as required under Administrative Procedure Act (APA).
Reversed.
Wardlaw, Circuit Judge, filed a dissenting opinion.
Procedural Posture(s): On Appeal; Motion for Permanent Injunction; Motion for Summary Judgment.
Attorneys and Law Firms
*1168 Jesse Panuccio (argued), Brad Hinshelwood, Katherine Twomey Allen, Daniel Tenny, and Mark B. Stern, Appellate Staff; Nicola T. Hanna, United States Attorney; Civil Division, United States Department of Justice, Washington, D.C.; for Defendants-Appellants.
David M. Zionts (argued), Benjamin L. Cavataro, and Ivano M. Ventresca, Covington & Burling LLP, Washington, D.C.; Neema T. Sahni, Mónica Ramirez Almadani, and Mitchell A. Kamin, Covington & Burling LLP, Los Angeles, California; Michael Dundas, Deputy City Attorney; Valerie L. Flores, Managing Senior Assistant City Attorney; Leela A. Kapur, Executive Assistant City Attorney; James P. Clark, Chief Deputy City Attorney; and Michael N. Feuer, City Attorney; Office of the City Attorney, Los Angeles, California; for Plaintiff-Appellee.
Matthew J. Piers, Caryn C. Lederer, and Chirag G. Badlani, Hughes Socol Piers Resnick & Dym Ltd., Chicago, Illinois; Daniel B. Rice, Joshua A. Geltzer, and Mary B. McCord, Institute for Constitutional Advocacy and Protection, Georgetown University Law Center, Washington, D.C.; for Amici Curiae Current and Former Prosecutors and Law Enforcement Leaders.
Appeal from the United States District Court for the Central District of California, Manuel L. Real, District Judge, Presiding, D.C. No. 2:17-cv-07215-R-JC
Before: Kim McLane Wardlaw, Jay S. Bybee, and Sandra S. Ikuta, Circuit Judges.
Dissent by Judge Wardlaw

City of Los Angeles v. Barr, 929 F.3d 1163 (2019) 19 Cal. Daily Op. Serv. 6790, 2019 Daily Journal D.A.R. 6511
OPINION
IKUTA, Circuit Judge:
*1169 In 1994, Congress enacted the Violent Crime Control and Law Enforcement Act (VCCLEA), Pub. L. No. 103-322, 108 Stat. 1796, to provide a range of federal assistance to state and local law enforcement. The Public Safety Partnership and Community Policing Act of 1994, Pub. L. No. 103-322, 108 Stat. 1807 (the Act), which was enacted as part of the VCCLEA, authorizes the Department of Justice (DOJ) to administer a competitive grant program that allocates a limited pool of funds to state and local applicants whose applications are approved by the Attorney General.
In 2017, Los Angeles applied for a grant, but failed to score highly enough to earn one. It challenges the use of two of the many factors DOJ uses in determining the scores for each applicant. Because DOJ’s use of these two factors in evaluating applicants for a competitive grant program did not violate the Spending Clause of the U.S. Constitution, art. I, § 8, cl. 1, did not exceed DOJ’s statutory authority, and did not violate the Administrative Procedure Act, we reverse the district court’s grant of summary judgment in favor of Los Angeles.
I
The Act’s grant program, codified at 34 U.S.C. §§ 10381 to 10389, gives broad discretion to DOJ to allocate grants and administer the grant program for the purposes set forth in § 10381(b). Section 10381(b) authorizes twenty-three different purposes, each generally linked to the goal of enhancing the crime prevention function of state and local law enforcement through working with the community. DOJ is authorized to “promulgate regulations and guidelines to carry out” the grant program, 34 U.S.C. § 10388, and may prescribe the required form and content of grant applications through regulations or guidelines, id. § 10382(b). By statute, the application must contain eleven broad categories of information, including an
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assessment of the impact of the proposed initiative on other aspects of the criminal justice system. See id. § 10382(c). Each application must also “identify related governmental and community initiatives which complement or will be coordinated with the proposal” and “explain how the grant will be utilized to reorient the affected law enforcement agency’s mission toward community-oriented policing or enhance its involvement in or commitment to community-oriented policing.” Id. § 10382(c)(4), (10).
*1170 The statute permits DOJ to give “preferential consideration, where feasible,” on specified grounds, including whether the application proposes hiring and rehiring additional career law enforcement officers, where a non-Federal contribution will cover more than the required 25 percent of the program cost. Id. § 10381(c)(1).1 The statute was amended in 2015 to allow DOJ to give preferential treatment to a state that has enacted certain laws designed to combat human trafficking. See id. § 10381(c)(2), (3); Justice for Victims of Trafficking Act of 2015, Pub. L. No. 114-22, §§ 601, 1002, 129 Stat. 227, 259–60, 266–67.
Congress has regularly made appropriations for grants administered under this statute. DOJ has determined that Congress intended these appropriations to be used for two of the twenty-three purposes set forth in § 10381, namely “to rehire law enforcement officers who have been laid off as a result of State, tribal, or local budget reductions for deployment in community-oriented policing,” 34 U.S.C. § 10381(b)(1), and “to hire and train new, additional career law enforcement officers for deployment in community-oriented policing across the Nation,” id. § 10381(b)(2).2
DOJ has exercised its broad discretion under the Act by developing a combined guidelines and application form for parties that wish to apply for a grant to hire or rehire officers for community-oriented policing. See COPS Office Application Attachment to SF-424 (referred to hereafter as “Application Guidelines”). The Application Guidelines define “community policing” as “a philosophy that promotes organizational strategies that support the systematic use of partnerships and problem-solving techniques to proactively address the immediate conditions that give rise to public safety issues such as crime, social disorder, and fear of crime.” Community policing strategies may include “ongoing collaborative relationships” with local and federal agencies, as well as “systematically tailor[ing] responses to crime and disorder problems to address their underlying conditions.”

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The Application Guidelines set out a series of questions and instructions that allow an applicant to explain why it is seeking a grant and why it is best qualified to receive one. Among other things, an applicant must explain its need for federal assistance, provide information about its fiscal health, agree to comply with various provisions of federal law, and provide additional information and assurances of various kinds. An applicant must also specify its law enforcement and community policing strategy, including a “crime and disorder problem/focus area.” The Application Guidelines direct the applicant to choose one of eight focus areas: “illegal immigrations,” “child and youth safety focus, *1171 ” “drug abuse education, prevention and intervention,” “homeland security problems,” “nonviolent crime problems and quality of life policing,” “building trust and respect,” “traffic/pedestrian safety problems,” and “violent crimes problems.” The Application Guidelines provide examples of the type of problems included in each focus area. For the homeland security focus area, for instance, the Application Guidelines state, “Please specify your critical infrastructure problem; for example, addressing threats against facilities, developing and testing incident response plans, etc.” For the illegal immigration focus area, the Application Guidelines state, “Please specify your focus on partnering with the federal law enforcement to address illegal immigration for information sharing, [§] 287(g) partnerships,3 task forces and honoring detainers.”4

DOJ evaluates, scores, and ranks the submitted

applications, then awards grant funds to the highest

scoring applicants.5 The scoring process is designed to

allocate federal assistance to programs, focuses, or

conduct that DOJ deems to best further statutory purposes

and federal goals. Consistent with the statutory criteria,

DOJ gives points to applicants that best demonstrate “a

specific public safety need” and show an “inability to

address the need without Federal assistance,” 34 U.S.C.

§§ 10382(c)(2), (c)(3), and to applicants that best “explain

how the grant will be utilized to reorient the affected law

enforcement

agency’s

mission

toward

community-oriented policing or enhance its involvement

in or commitment to community-oriented policing,” id. §

10382(c)(10). DOJ also gives points to applicants in

jurisdictions with higher crime rates and comparatively

lower fiscal health. Additionally, DOJ scores applicants

on how their proposals relate to that year’s federal goals.

In various years, DOJ has awarded points for applicants

that gave work to military veterans, that adopted specified

management practices (such as making regular

assessments of employee satisfaction, exercising

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flexibility in officer shift assignments, and operating an early intervention system to identify officers with specified personal risks), or that experienced certain catastrophic events, such as a terror attack or school shooting. In 2017, DOJ gave additional points to applicants that focused on the federal priority areas of violent crime, homeland security, and control of illegal immigration. Also in 2017, an applicant could elect to receive additional points by submitting a “Certification of Illegal Immigration *1172 Cooperation” (the “Certification”) in which the applicant agrees that (1) the applicant will implement rules, regulations, or practices that ensure DHS personnel have access to the entity’s correctional or detention facilities in order to meet with an alien, and (2) the applicant will implement rules, regulations, policies, or practices to ensure that the entity’s correctional or detention facilities provide notice “as early as practicable (at least 48 hours, where possible) to DHS regarding the scheduled release” of an alien in custody.
As usual, in the 2017 grant cycle, DOJ received more requests for funding than it was able to grant. Congress allocated roughly $98.5 million for grants, but applicants requested almost $410 million. From a total applicant pool of 90 large jurisdictions and 1,029 small jurisdictions, DOJ awarded grant funds to 30 of the large jurisdictions and 149 of the small jurisdictions. An applicant did not need to select the illegal immigration focus or submit the Certification to receive funds. Of the seven applicants that chose illegal immigration as a focus area, only one large jurisdiction and one small jurisdiction received an award. Of the successful applicants, only 19 of the 30 large jurisdictions and 124 of the 149 small jurisdictions received bonus points for submitting the Certification. Los Angeles submitted an application but was not awarded any funding. It chose “building trust and respect” as its focus area and declined to submit the Certification.
In September 2017, Los Angeles filed a complaint seeking to enjoin DOJ’s practice of awarding points to applicants that selected the illegal immigration focus area and to applicants that completed a Certification related to illegal immigration. Los Angeles argues that these two elements of DOJ’s scoring system are unlawful because they (1) violate constitutional principles of separation of powers and exceed DOJ’s lawful authority, (2) violate the Spending Clause, and (3) are arbitrary and capricious under the Administrative Procedure Act. The district court agreed with Los Angeles on each of these claims. The court entered a permanent injunction against the

City of Los Angeles v. Barr, 929 F.3d 1163 (2019) 19 Cal. Daily Op. Serv. 6790, 2019 Daily Journal D.A.R. 6511
challenged practices, and DOJ appealed.
II
Although Los Angeles claims it was injured by DOJ’s use of two scoring elements in its 2017 grant cycle, that cycle has long since been completed. Therefore, we must determine whether this appeal is moot, and if not, whether Los Angeles has standing to bring its claims.
We first conclude that the appeal is not moot. Article III limits the jurisdiction of federal courts to actual cases and controversies. U.S. Const. art. III, § 2, cl. 1. Because there is no longer a live controversy regarding the 2017 grant program, the appeal would ordinarily be moot. Nevertheless, the Supreme Court has held that an appeal is not moot in “exceptional situations” when it is “capable of repetition, yet evading review.” Kingdomware Techs., Inc. v. United States, ––– U.S. ––––, 136 S. Ct. 1969, 1976, 195 L.Ed.2d 334 (2016) (quoting Spencer v. Kemna, 523 U.S. 1, 17, 118 S.Ct. 978, 140 L.Ed.2d 43 (1998)). Here, the case meets the requirements to avoid mootness. First, “the challenged action [is] in its duration too short to be fully litigated prior to cessation or expiration,” id. (alteration in original) (quoting Spencer, 523 U.S. at 17, 118 S.Ct. 978), because any one grant cycle is too short to provide for meaningful review. In 2017, for instance, fewer than three months passed between DOJ’s announcement of the scoring factors and the grant awards. Second, “there [is] a reasonable expectation that the same complaining party [will] be subject to the same action again.” Id. (alteration in original) (quoting Spencer, 523 U.S. at 17, 118 S.Ct. 978). Los Angeles is reasonably *1173 likely to apply for a DOJ grant in the future, and has done so in the previous two consecutive years. Los Angeles also submitted a declaration of its intent to apply for a grant in the 2018 cycle. Although DOJ states it has not yet determined “how immigration-related factors will be handled in the FY 2018 application,” it has not agreed to stop giving bonus points for such factors in the future. Even if it had, voluntary cessation of the practice does not deprive us of power to hear the case “unless it can be said with assurance that there is no reasonable expectation ... that the alleged violation will recur.” Fikre v. FBI, 904 F.3d 1033, 1037 (9th Cir. 2018) (internal quotation marks and citation omitted). No such assurances are present here.
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We also conclude that Los Angeles has standing to bring this appeal. Los Angeles states it “has made a longstanding decision that it can best protect public safety by not participating in federal civil immigration enforcement.” It also states that its police department has a longstanding policy that “restricts an officer from initiating a police action with the objective of discovering a person’s immigration status, and also prohibits arrests based solely on civil immigration status.” As a result of these policies, Los Angeles declined to select the illegal immigration focus and declined to submit the Certification. Accordingly, Los Angeles claims that when it applied for a grant, it was disadvantaged relative to other applicants that were able to choose the illegal immigration focus area or complete the Certification, and this inability to compete on an even playing field constitutes a concrete and particularized injury. See Bullfrog Films, Inc. v. Wick, 847 F.2d 502, 506 (9th Cir. 1988); Preston v. Heckler, 734 F.2d 1359, 1365 (9th Cir. 1984) (“[W]hen challenged agency conduct allegedly renders a person unable to fairly compete for some benefit, that person has suffered a sufficient ‘injury in fact.’ ” (quoting Glacier Park Found. v. Watt, 663 F.2d 882, 885 (9th Cir. 1981))); cf. Regents of the Univ. of Cal. v. Bakke, 438 U.S. 265, 280 n.14, 98 S.Ct. 2733, 57 L.Ed.2d 750 (1978) (holding that plaintiff suffered an injury when he could not compete for all places in his entering medical school class). While DOJ states that Los Angeles would not have received funding regardless of whether DOJ awarded bonus points for the illegal immigration focus area or the Certification, Los Angeles need not prove that it would have received funding absent the challenged considerations. See Ne. Fla. Chapter of Associated Gen. Contractors of Am. v. City of Jacksonville, 508 U.S. 656, 666, 113 S.Ct. 2297, 124 L.Ed.2d 586 (1993). Further, Los Angeles argues that such injury is directly traceable to DOJ’s use of the challenged scoring elements. Should a court bar DOJ from using these scoring factors, Los Angeles contends, applicants that are willing to choose the illegal immigration focus area or to sign the Certification would no longer have that advantage over Los Angeles. See Bullfrog Films, 847 F.2d at 507–08.
Los Angeles’s claim of injury is thin. Los Angeles does not argue it was prevented by law from selecting an illegal immigration focus or from agreeing to the Certification; it merely chose not to do so. Moreover, Los Angeles’s decision not to select the illegal immigration focus did not itself put it at a competitive disadvantage. An applicant can choose only one focus area, and Los

City of Los Angeles v. Barr, 929 F.3d 1163 (2019) 19 Cal. Daily Op. Serv. 6790, 2019 Daily Journal D.A.R. 6511
Angeles could have equalized the focus area bonus points by choosing the homeland security or violent crime focus area, both of which also received additional points, rather than choosing the “building trust and respect” focus area. (DOJ did not offer applicants equal points for conduct comparable to agreeing to the Certification, however.)
Despite the weakness of Los Angeles’s argument, a plaintiff need show only a *1174 slight injury for standing. See United States v. Students Challenging Regulatory Agency Procedures (SCRAP), 412 U.S. 669, 689 n.14, 93 S.Ct. 2405, 37 L.Ed.2d 254 (1973). We conclude that Los Angeles’s slight competitive disadvantage due to its policy of not assisting the federal government on immigration-related issues is sufficient to give Los Angeles standing in this action.
III
Before turning to the merits of Los Angeles’s claims, we first note the limited nature of the dispute. As noted above, in administering a federal grant program and scoring the applications it receives, DOJ gives additional points to an applicant that chooses to focus on the illegal immigration area (instead of other focus areas) and gives additional points to an applicant who agrees to the Certification. Choosing the illegal immigration area and submitting the Certification are not conditions of receiving a grant, and numerous applicants received grants without doing so. Likewise, numerous applicants who chose the illegal immigration focus area or submitted the Certification did not receive a grant. The question before us, therefore, is whether DOJ’s scoring practice of giving these additional points is unconstitutional or exceeds DOJ’s authority in administering the grant program.
A
We begin with Los Angeles’s argument that DOJ’s practice of giving additional consideration to applicants that choose to further the two specified federal goals violates the Spending Clause. The Spending Clause
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provides that Congress has the power “to pay the Debts and provide for the common Defence and general Welfare of the United States.” U.S. Const. art. I, § 8, cl. 1. This power gives Congress the ability “to grant federal funds to the States, and [Congress] may condition such a grant upon the States’ ‘taking certain actions that Congress could not require them to take.’ ” Nat’l Fed’n of Indep. Bus. v. Sebelius, 567 U.S. 519, 576, 132 S.Ct. 2566, 183 L.Ed.2d 450 (2012) (“NFIB”) (quoting Coll. Sav. Bank v. Fla. Prepaid Postsecondary Educ. Expense Bd., 527 U.S. 666, 686, 119 S.Ct. 2219, 144 L.Ed.2d 605 (1999)).
Although Congress has broad power to attach conditions to the receipt of federal funds, the power is not unlimited. South Dakota v. Dole, 483 U.S. 203, 207, 107 S.Ct. 2793, 97 L.Ed.2d 171 (1987). First, “the exercise of the spending power must be in pursuit of the general welfare.” Id. (internal quotation marks omitted). “In considering whether a particular expenditure is intended to serve general public purposes, courts should defer substantially to the judgment of Congress.” Id.
Moreover, if Congress decides to impose conditions on the allocation of funds to the states, it “must do so unambiguously ..., enabl[ing] the States to exercise their choice knowingly, cognizant of the consequences of their participation.” Id. (alteration in original) (quoting Pennhurst State Sch. & Hosp. v. Halderman, 451 U.S. 1, 17, 101 S.Ct. 1531, 67 L.Ed.2d 694 (1981)). In Pennhurst, the plaintiffs argued that a federal-state grant program should be reinterpreted as retroactively imposing significant costs on states that received those funds. 451 U.S. at 20, 101 S.Ct. 1531. In rejecting that reinterpretation, the Court held that legislation allocating funds to states in return for states accepting specified conditions is analogous to a contract between Congress and the states. Id. at 17, 101 S.Ct. 1531. “The legitimacy of Congress’[s] power to legislate under the spending power thus rests on whether the State voluntarily and knowingly accepts the terms of the ‘contract.’ ” Id. Congress goes too far when it *1175 surprises states with “post acceptance or ‘retroactive’ conditions.” Id. at 25, 101 S.Ct. 1531. Therefore, the Court declined to reinterpret the “contract” between Congress and the states as retroactively imposing such unexpected and burdensome conditions. Id.
Nor can the federal government attach conditions to the receipt of federal funds if “the financial inducement offered by Congress might be so coercive as to pass the point at which pressure turns into compulsion,” Dole, 483 U.S. at 211, 107 S.Ct. 2793 (internal quotation marks

City of Los Angeles v. Barr, 929 F.3d 1163 (2019)
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omitted). In South Dakota v. Dole, Congress attempted to induce states to adopt a minimum drinking age of twenty-one years by threatening to cut five percent of federal highway funding to those states that failed to do so. Id. at 211, 107 S.Ct. 2793. The Court held this was only “relatively mild encouragement to the States,” and therefore “a valid use of the spending power.” Id. at 211–12, 107 S.Ct. 2793. By contrast, the threat to eliminate all of a state’s existing Medicaid funding if the state opted out of the Affordable Care Act’s expansion in health care coverage was “much more than ‘relatively mild encouragement’—it [was] a gun to the head,” and therefore was an impermissible use of Congress’s spending power. NFIB, 567 U.S. at 581, 132 S.Ct. 2566. Accordingly, Congress may offer conditional funding only if the “State has a legitimate choice whether to accept the federal conditions in exchange for federal funds.” Id. at 578, 132 S.Ct. 2566.
Further, Congress may not impose conditions on federal grants that “are unrelated ‘to the federal interest in particular national projects or programs.’ ” Dole, 483 U.S. at 207–08, 107 S.Ct. 2793 (quoting Massachusetts v. United States, 435 U.S. 444, 461, 98 S.Ct. 1153, 55 L.Ed.2d 403 (1978) (plurality opinion)). This standard is not demanding—the conditions need only “bear some relationship to the purpose of the federal spending.” Mayweathers v. Newland, 314 F.3d 1062, 1067 (9th Cir. 2002) (quoting New York v. United States, 505 U.S. 144, 167, 112 S.Ct. 2408, 120 L.Ed.2d 120 (1992)). In Dole, for instance, the requirement that states adopt a minimum drinking age was sufficiently related to the payment of federal highway funds. Rejecting the dissent’s argument that the restriction had too “attenuated or tangential [a] relationship to highway use or safety,” Dole, 483 U.S. at 215, 107 S.Ct. 2793 (O’Connor, J., dissenting), the Court held that the age restriction was “directly related to one of the main purposes for which highway funds are expended—safe interstate travel,” id. at 208, 107 S.Ct. 2793 (majority opinion). Indeed, the Court has never struck down a condition on federal grants based on this relatedness prong.
Finally, Congress may not require states to engage in actions that are themselves unconstitutional. Id. at 210–11, 107 S.Ct. 2793.
As even this brief description of the limitations on Congress’s spending power makes clear, the applicable Spending Clause principles do not readily apply to an allocation of grant funds through a competitive grant process, such as the program in this case.6 As a threshold
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matter, DOJ does not propose to withdraw significant *1176 federal funds from a state or local jurisdiction unless they comply with specified federal requirements. Cf. NFIB, 567 U.S. at 579–80, 132 S.Ct. 2566; Dole, 483 U.S. at 205, 107 S.Ct. 2793. Nor does DOJ propose to reinterpret the terms of a grant retroactively to impose costly new responsibilities on a recipient. Cf. Pennhurst, 451 U.S. at 25, 101 S.Ct. 1531. Nor does DOJ offer a financial inducement for an applicant to cooperate on illegal immigration issues that is so coercive that it is tantamount to compulsion. Cf. NFIB, 567 U.S. at 579–80, 132 S.Ct. 2566. Rather, an applicant is free to choose one of many focus areas, and numerous applicants obtained funding without selecting illegal immigration or signing the Certification. Nor did DOJ impose surprise or ambiguous conditions on recipients of the funds, cf. Pennhurst, 451 U.S. at 25, 101 S.Ct. 1531; the immigration-related conditions were clearly presented in the Application Guidelines and Certification.
At most, DOJ’s decision to give additional points to applicants that select an illegal immigration focus or that agree to the Certification encourages applicants to focus on these federal priorities. Because an applicant is free to select other prioritized focus areas or not to apply for a grant at all, such a subtle incentive offered by DOJ’s scoring method is far less than the coercion in Dole, which directly reduced the amount of funds allocated to a state, and which the Court held was consistent with Spending Clause principles.7
Finally, cooperation relating to enforcement of federal immigration law is in pursuit of the general welfare, and meets the low bar of being germane to the federal interest in providing the funding to “address crime and disorder problems, and otherwise ... enhance public safety,” VCCLEA § 1701(a), “one of the main purposes for which” the grant is intended, Dole, 483 U.S. at 208, 107 S.Ct. 2793. As explained in more detail below, DOJ has reasonably determined that cooperation on illegal immigration matters furthers the purposes of the Act. See infra at 1177–80. Accordingly, we reject Los Angeles’s Spending Clause argument.
B
Because DOJ’s scoring factors encourage, but do not

City of Los Angeles v. Barr, 929 F.3d 1163 (2019) 19 Cal. Daily Op. Serv. 6790, 2019 Daily Journal D.A.R. 6511
coerce, an applicant to cooperate on immigration matters, we also reject Los Angeles’s claims that DOJ’s use of the factors infringes on state autonomy in a manner that raises Tenth Amendment concerns. Los Angeles’s reliance on Gregory v. Ashcroft, 501 U.S. 452, 111 S.Ct. 2395, 115 L.Ed.2d 410 (1991), and Virginia Department of Education v. Riley, 106 F.3d 559 (4th Cir. 1997) (en banc) (per curiam), is meritless. Gregory held that the federal Age Discrimination in Employment Act did not prohibit Missouri from enforcing its law requiring state judges to retire at age 70. 501 U.S. at 473, 111 S.Ct. 2395. According to the Court, while Congress has the power to override a state age requirement, it would have to use unmistakably clear statutory language to do so, because such a question “is a decision of the most fundamental sort for a sovereign entity.” Id. at 460, 111 S.Ct. 2395. The *1177 Fourth Circuit applied a similar presumption in Riley, holding that the Individuals with Disabilities Education Act did not clearly establish that Congress intended to condition Virginia’s receipt of federal funds on the state’s provision of “private educational services to each of the State’s 126 disabled students who had been expelled for reasons wholly unrelated to their disabilities.” 106 F.3d at 560. Here, contrary to Los Angeles’s argument, DOJ’s decision to give points to applicants that submit the Certification and agree to give DHS personnel access to the applicant’s correctional or detention facilities to meet with alien detainees, or to give DHS notice before an alien detainee is released, does not override state laws and therefore does not give rise to any Tenth Amendment concern.
IV
We now turn to Los Angeles’s argument that DOJ exceeded its statutory authority in awarding bonus points to applicants that selected the illegal immigration focus area or that agreed to the Certification.
When Congress has “explicitly left a gap for the agency to fill, there is an express delegation of authority to the agency to elucidate a specific provision of the statute by regulation.” Chevron, U.S.A., Inc. v. Nat. Res. Def. Council, Inc., 467 U.S. 837, 843–44, 104 S.Ct. 2778, 81 L.Ed.2d 694 (1984). “Such legislative regulations are given controlling weight unless they are arbitrary, capricious or manifestly contrary to the statute.” Id. at
7

844, 104 S.Ct. 2778. This standard is “deferential and narrow”; there is a “ ‘high threshold’ for setting aside agency action.” Alaska Oil & Gas Ass’n v. Jewell, 815 F.3d 544, 554 (9th Cir. 2016) (quoting River Runners for Wilderness v. Martin, 593 F.3d 1064, 1067, 1070 (9th Cir. 2010)). As long as a “reasonable basis exists for the decision”—meaning the agency “considered the relevant factors and articulated a rational connection between the facts found and the choices made”—we presume the action is valid. Id. (internal quotation marks omitted). Moreover, when Congress has explicitly given an agency the substantive authority to prescribe standards, the agency’s promulgations are “entitled to more than mere deference or weight”; rather, they are entitled to “legislative effect.” Schweiker v. Gray Panthers, 453 U.S. 34, 44, 101 S.Ct. 2633, 69 L.Ed.2d 460 (1981) (quoting Batterton v. Francis, 432 U.S. 416, 425–26, 97 S.Ct. 2399, 53 L.Ed.2d 448 (1977)).
This highly deferential standard is applicable here. As noted above, the Act gives DOJ broad authority to “promulgate regulations and guidelines to carry out” the Public Safety and Community Policing subchapter, 34 U.S.C. § 10388, authorizing the creation and implementation of a competitive grant program, and to “prescribe by regulation or guidelines” the form of an application and the information it will require, id. § 10382(b). Because Congress authorized DOJ to fill gaps through its promulgation of the Application Guidelines and implementation of the grant program, we give DOJ’s inclusion of an illegal immigration focus area and use of the Certification controlling weight unless they are manifestly inconsistent with the statute or lack any reasonable basis, “even if the agency’s reading differs from what the court believes is the best statutory interpretation.” Glacier Fish Co. v. Pritzker, 832 F.3d 1113, 1121 (9th Cir. 2016) (quoting Nat’l Cable & Telecomms. Ass’n v. Brand X Internet Servs., 545 U.S. 967, 980, 125 S.Ct. 2688, 162 L.Ed.2d 820 (2005)).
DOJ’s inclusion of immigration-related scoring factors as a component of its implementation of its grant program is well within DOJ’s broad authority to carry out the Act. At the threshold, the Application Guidelines’ inclusion of the illegal immigration *1178 focus area, which asks an applicant to “specify your focus on partnering with federal law enforcement to address illegal immigration for information sharing, [§] 287(g) partnerships, task forces and honoring detainers,” is not “manifestly contrary to the statute.” Chevron, 467 U.S. at 844, 104 S.Ct. 2778. Nothing in the Act precludes DOJ from allocating federal funds to state or local governments to focus on problems

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raised by the presence of illegal aliens within their jurisdictions.8
Rather, DOJ’s determination “that illegal immigration enforcement is a public safety issue and that this issue can be addressed most effectively through the principles of community policing that [DOJ] promotes—including through partnerships and problem-solving techniques,” is entirely consistent with the broad scope of the Act. First, DOJ’s understanding that illegal immigration presents a public safety issue has been acknowledged by the Supreme Court. See Arizona v. United States, 567 U.S. 387, 397–98, 132 S.Ct. 2492, 183 L.Ed.2d 351 (2012). While “it is not a crime for a removable alien to remain present in the United States,” id. at 407, 132 S.Ct. 2492, the Court has recognized that in some jurisdictions, such as Arizona’s “most populous county,” aliens who have entered the country illegally “are reported to be responsible for a disproportionate share of serious crime,” id. at 397–98, 132 S.Ct. 2492. The Court has noted that “[a]ccounts in the record suggest there is an ‘epidemic of crime, safety risks, serious property damage, and environmental problems’ associated with the influx of illegal migration across private land near the Mexican border.” Id. at 398, 132 S.Ct. 2492. Congress has likewise expressed concern about “increasing rates of criminal activity by aliens.” Demore v. Kim, 538 U.S. 510, 518, 123 S.Ct. 1708, 155 L.Ed.2d 724 (2003).
Second, DOJ’s determination that the techniques of community policing may be used to address this public safety issue is entirely reasonable. As DOJ explains, community policing is an important crime-fighting technique that officers use along with others to address various law-enforcement and community safety goals. The public safety issues that arise from illegal immigration can be addressed through collaborative interactions and information flow between law enforcement and the community, just as with any other sort of public safety issue, such as those arising from “violent crime problems” and other focus areas. If a jurisdiction selects an illegal immigration focus due to community concerns, it is reasonable to consider that officers may be more effective in addressing such issues if they act pursuant to § 287(g) partnerships, which allow state or local officers to perform immigration officer functions, see 8 U.S.C. § 1357(g)(1).9 Nothing in the Act precludes such cooperation; *1179 rather, the Act requires applicants to “identify related governmental and community initiatives which complement or will be coordinated with the proposal,” 34 U.S.C. § 10382(c)(4), and to explain how officers’ use of community-oriented
8

policing techniques will be coordinated with such initiatives.
Nor does the Act’s community-policing focus limit DOJ to considering only those factors directly related to interaction with the community. Obviously, an officer’s responsibilities involve a broad array of tasks, including administrative tasks like sharing information with relevant federal agencies or honoring detainers. Just as DOJ considers a jurisdiction’s fiscal health and crime rate, as well as a jurisdiction’s attention to other federal priorities like the mental health of officers, giving work to military veterans, and responding to catastrophic events like school shootings, it can also consider a jurisdiction’s attention to the federal priority of illegal immigration through the Certification. A jurisdiction’s willingness to provide notice that a detained removable alien will be released from custody, or to provide facility access so that federal officials can interview removable aliens while in custody, is consistent with the Act’s purpose to enhance public safety, see VCCLEA § 1701(a), through means including both community-oriented policing and attention to intelligence, anti-terror, or homeland security duties. See 34 U.S.C. §§ 10381(b)(1)–(2), (4).
Finally, DOJ’s broad definition of community-oriented policing in the Application Guidelines as “a philosophy that promotes organizational strategies that support the systematic use of partnerships and problem-solving techniques to proactively address the immediate conditions that give rise to public safety issues such as crime, social disorder, and fear of crime,” clearly encompasses all DOJ’s scoring factors, including partnering with federal law enforcement to address illegal immigration for information sharing, [§] 287(g) partnerships, task forces, and honoring detainers. The Act does not define “community-oriented policing” or delineate what sorts of strategies are sufficiently “community-oriented.” See Brand X, 545 U.S. at 980–81, 125 S.Ct. 2688. Therefore, because Congress has not “directly spoken to the precise question at issue,” we must defer to DOJ’s interpretation so long as it is reasonable, that is, so long as it “reflects a plausible construction of the plain language of the statute and does not otherwise conflict with Congress’[s] expressed intent.” Glacier Fish, 832 F.3d at 1120–21 (first quoting Chevron, 467 U.S. at 842, 104 S.Ct. 2778; then quoting Rust v. Sullivan, 500 U.S. 173, 184, 111 S.Ct. 1759, 114 L.Ed.2d 233 (1991)).10 This is true even if *1180 the agency’s interpretation is “not necessarily the only possible interpretation, nor even the interpretation deemed most reasonable by the courts.” Entergy Corp. v. Riverkeeper,

City of Los Angeles v. Barr, 929 F.3d 1163 (2019)
19 Cal. Daily Op. Serv. 6790, 2019 Daily Journal D.A.R. 6511
Inc., 556 U.S. 208, 218, 129 S.Ct. 1498, 173 L.Ed.2d 369 (2009) (emphasis in original).
Here, DOJ’s interpretation is permissible, because it reasonably construes the statutory language (“community-oriented” and “policing”) and is consistent with the statute’s purposes, which go far beyond interactions between law enforcement and the community. The general purpose of the Act is to enhance the crime prevention functions of state and local law enforcement and to enhance public safety through interacting with and working with the community. See 34 U.S.C. § 10381(b); see also VCCLEA § 1701(a) (stating that it is among the Act’s purposes “to increase police presence, to expand and improve cooperative efforts between law enforcement agencies and members of the community to address crime and disorder problems, and otherwise to enhance public safety”).11
The dissent argues that DOJ’s interpretation and implementation of the Act may reflect the administration’s policy goals, and these goals may change from time to time. Dissent at 1195 & n.48. We agree that an administration’s policy goals may influence the selection of factors warranting additional consideration for awarding competitive grants. But Congress contemplated such a result when it enacted a statute that left substantial gaps for the implementing agency to fill. Where Congress affords an agency such discretion, we ask only whether the agency’s interpretation was reasonable. See Glacier Fish, 832 F.3d at 1120. Whether an interpretation serves an administration’s policy goals has no bearing on that inquiry. See Dep’t of Commerce v. New York, ––– U.S. ––––, ––––, 139 S.Ct. 2551, ––– L.Ed.2d –––– (2019) (“[A] court may not set aside an agency’s policymaking decision solely because it might have been influenced by political considerations or prompted by an Administration’s priorities.”).
Los Angeles and the dissent also contend that DOJ exceeded its authority by *1181 including the option of the illegal immigration focus area and considering whether an applicant submitted the Certification because DOJ is constrained by § 10381(c), which states that the “Attorney General may give preferential consideration, where feasible, to an application” from “an applicant in a state” that has certain human trafficking laws. Dissent at 1192–93. According to this argument, DOJ’s inclusion of an illegal immigration focus area in the Application Guidelines renders §§ 10381(c)(2) and (c)(3) “superfluous” because Congress would not have needed to enact §§ 10381(c)(2) and (c)(3) if DOJ had the
9

authority to favor applicants based on efforts related to illegal immigration and other extraneous matters. Dissent at 1192–93.
This argument lacks any support in the text or history of the Act. First, it is based on Los Angeles’s baseless assumptions that (1) preferring applicants who focus on illegal immigration is the same as preferring states that have enacted specified human trafficking laws, and (2) DOJ could not prefer either without specific authorization from Congress. Nothing in the Act supports these assumptions. First, as we have explained, an award of grant funds to states or localities that intend to focus on illegal immigration is well within the statute’s scope, and DOJ has broad discretion to adopt such a focus area. Second, while § 10381(c) encourages DOJ to give preferential consideration to states with specified human trafficking laws, the statute does not indicate whether DOJ would have lacked authority to do so before the enactment of § 10381(c). More important, it is clear that nothing in that section limits DOJ’s discretion to select additional factors to assist it in allocating grant funds. See id. § 10382(b). Had Congress intended to limit DOJ’s discretion in ranking applications according to various criteria, which DOJ had been doing for years before Congress amended the Act to add § 10381(c), we would expect Congress to give some express indication of such an intent. It did not do so. Accordingly, we reject the argument that § 10381(c) has any bearing on DOJ’s current methodology.
We conclude that DOJ did not exceed its statutory authority in including two scoring factors related to illegal immigration as part of its implementation of the grant program.
V
Finally, Los Angeles argues that DOJ violated the APA because it failed to engage in reasoned decisionmaking and because its explanation for its policy is contrary to the evidence before it when it decided to give points for adopting the illegal immigration focus and submitting the Certification.
“One of the basic procedural requirements of administrative rulemaking is that an agency must give

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adequate reasons for its decisions.” Encino Motorcars, LLC v. Navarro, ––– U.S. ––––, 136 S. Ct. 2117, 2125, 195 L.Ed.2d 382 (2016). The agency satisfies this requirement “when the agency’s explanation is clear enough that its ‘path may reasonably be discerned.’ ” Id. (quoting Bowman Transp., Inc. v. Arkansas–Best Freight Sys., Inc., 419 U.S. 281, 286, 95 S.Ct. 438, 42 L.Ed.2d 447 (1974)). The agency need provide only a “minimal level of analysis” to avoid its action being deemed arbitrary and capricious. Id. Although a reviewing court “must not rubber-stamp administrative decisions,” it also “must not substitute its judgment for that of the agency.” Alaska Oil, 815 F.3d at 554 (internal quotation marks omitted). Agency action may also be deemed arbitrary and capricious if the agency has “offered an explanation for its decision that runs counter to the evidence before the agency, or is so implausible that *1182 it could not be ascribed to a difference in view or the product of agency expertise.” Motor Vehicle Mfrs. Ass’n of the U.S. v. State Farm Mut. Auto. Ins. Co., 463 U.S. 29, 43, 103 S.Ct. 2856, 77 L.Ed.2d 443 (1983).
According to Los Angeles, DOJ’s action was not based on empirical evidence establishing that cooperation between state and local authorities and federal authorities on illegal immigration addresses crime or public safety issues. Los Angeles points to studies it claims show that recidivism rates for illegal aliens are not disproportionate relative to the general population and to news articles describing studies that it claims show that sanctuary policies do not lead to increased crime rates. According to Los Angeles, DOJ ignored these studies and articles, and also failed to make a careful study of how community policing relates to civil immigration enforcement. Because DOJ adopted its two scoring factors without reviewing relevant evidence, Los Angeles argues, DOJ’s scoring factors are arbitrary and capricious, and thus invalid under the APA.
We disagree. Under the APA, an agency must give adequate reasons for its decision, and DOJ has done so here. DOJ has reasonably determined that “illegal immigration enforcement is a public safety issue [that] can be addressed most effectively through the principles of community policing.” And because the Certification “relate[s] to non-citizens who are being detained and who have committed crimes or are suspected of having committed crimes,” DOJ reasonably concluded that “[w]orking with the federal government to enforce the federal immigration laws against aliens who have committed crimes or are suspected of having committed crimes makes communities safer.” As the Supreme Court has noted, “increasing rates of criminal activity by aliens”
10

and federal immigration authorities’ failure to remove “deportable criminal aliens” have been the subject of congressional concern. Demore, 538 U.S. at 518, 123 S.Ct. 1708.
Moreover, the studies and articles cited by Los Angeles do not undercut DOJ’s conclusion that removing aliens who are convicted or suspected of crimes makes communities safer. At most, the studies and articles provide some evidence that the recidivism rate for removable aliens who engaged in criminal activities is comparable to the recidivism rate for U.S. citizens and aliens who are not removable; such studies do not bear on whether addressing illegal immigration enforcement through community-oriented policing can make communities safer.12 Accordingly, there is no basis for Los Angeles’s argument that DOJ acted counter to the evidence before it.
Los Angeles may believe that addressing illegal immigration is not the most effective way to improve public safety, but the wisdom of DOJ’s policy is not an element of our arbitrary and capricious review. We may not “substitute [our] judgment for that of the agency.” State Farm, 463 U.S. at 43, 103 S.Ct. 2856. And DOJ “need not demonstrate to [our] satisfaction that the reasons for the new policy are better than the reasons for the old one; it suffices that the new policy is permissible under the statute, that there are good reasons for it, and that the agency believes it to be better[.]” *1183 FCC v. Fox Television Stations, Inc., 556 U.S. 502, 515, 129 S.Ct. 1800, 173 L.Ed.2d 738 (2009) (emphasis in original).
We conclude that DOJ’s policy decision has a “rational connection” to the goal of enhancing public safety and was not counter to the evidence before the agency, and therefore is not arbitrary and capricious. Alaska Oil, 815 F.3d at 554.
* * *
In sum, DOJ’s use of the two scoring factors is well within its statutory discretion, is not arbitrary and capricious, and complies with the constitutional restrictions imposed on congressional action under principles of federalism and the Spending Clause.
REVERSED.

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WARDLAW, Circuit Judge, dissenting:
A quarter of a century ago, in 1994, the United States Congress passed the Public Safety Partnership and Community Policing Act (the Act), which established the Community Oriented Policing Services (COPS) grant program. Congress’s purpose was to increase the number of “cops on the beat” and to enhance officers’ interaction within their communities to improve communication and cooperation; that is, to create “community partnerships” between police officers and the communities they serve. Congress specified twenty-three “purposes for which grants may be made” but to date has appropriated funds for only two of those purposes: (1) to rehire officers who were laid off due to budgetary concerns for deployment in community-oriented policing, and (2) to hire and train new additional officers for deployment in community-oriented policing. Thus, since authorizing grants for community-oriented policing, a term well understood by Congress in 1994 to connote partnering with the community, Congress’s sole appropriations have been to fund deployment of more officers on the streets.1
Congress funds states and localities that deploy community-oriented policing through the COPS grant program. It delegated the administration of the COPS grant program to the Department of Justice (DOJ). In 1994, Attorney General Janet Reno created the COPS Office within DOJ to handle applications and the awards of grants to cities and states for community-oriented policing. Through its entire existence, the COPS grant program has been administered with this congressional purpose in mind.
That is, until 2017, when DOJ decided to usurp the COPS funds for its own immigration policy directives. As part of a broader effort to divert federal funds from congressionally authorized purposes to the Trump Administration’s efforts to press state and local police into federal immigration enforcement, Attorney General Jefferson B. Sessions III imposed new preferences for obtaining COPS grant awards that effectively substitute “federal law enforcement” for “community” in the “community partnerships” Congress sought to fund through the Act. Congress did not contemplate general policing when devoting funds for community-oriented policing, and it certainly did not contemplate federal immigration enforcement when it attempted to reduce crime by adding “cops on the beat.”
Because the term “community-oriented policing” had in 1994 and has through today a commonly understood
11

meaning that excludes federal immigration enforcement functions, the new federal immigration preferences are, as the district court held, *1184 ultra vires as a matter of law. I therefore respectfully dissent from the majority’s holding that DOJ’s diversion of COPS grant funding from community policing to civil immigration enforcement is lawful.2
I.
A. History of Community-Oriented Policing in the United States
To comprehend just how antithetical to the concept of community-oriented policing DOJ’s new federal immigration considerations are, one must have an understanding of what community partnership means, the history and development of the principles it embraces, and the history of the COPS grant program itself. Community-oriented policing is “a collaboration between the police and the community that identifies and solves community problems.”3 This policing strategy, which emerged in the 1970s, is rooted in the principle that “the police are the public and the public are the police.”4 In the 1960s and 1970s, unstable social conditions, scandals, and recessions led to cuts in the ranks of police departments across the country, driving the need for policing reform.5 Despite tactical use of automobiles for crime-preventive patrol and rapid response to calls for service, the 1960s had ushered in an era of rising crime and fear.6 The civil rights and antiwar movements further challenged the legitimacy of police and police tactics.7 Police were inadequately equipped to serve their socially and culturally diverse communities.8 The public’s “erosion of confidence” in the police translated into a significant loss of political and financial support.9
Recognizing the inability of existing police practices to curb rising civil disorder and crime, police administrators, civic leaders, and politicians sought to remedy frayed police-community relations and reform how law enforcement related to the communities it served.10 These

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reforms emphasized community contribution and support to legitimize police activity—and to create a partnership between the community and the police to meet public safety goals.11
The hallmark of community-oriented policing is a return to a historical policing *1185 mainstay: foot patrol, or, “cops on the beat.”12 Government reports, academic studies, and news articles consistently formulate community-oriented policing as a strategy based on building trust between police and the communities they serve through direct interaction with individuals within the communities.13 As a 1994 DOJ monograph on community policing explained:
The foundations of a successful community policing strategy are the close, mutually beneficial ties between police and community members. Community policing consists of two complementary core components, community partnership and problem solving. To develop community partnership, police must develop positive relationships with the community, must involve the community in the quest for better crime control and prevention, and must pool their resources with those of the community to address the most urgent concerns of community members. Problem solving is the process through which the specific concerns of communities are identified and through which the most appropriate remedies to abate these problems are found.14
More “cops on the beat” proved enormously politically popular and, more importantly, measurably contributed to public safety.15 Studies conducted throughout the 1970s suggest that foot patrol “reduced fear, increased citizen satisfaction with police, improved police attitudes toward citizens, and increased the morale and job satisfaction of police.”16 Significantly, the foot patrol experiments of this decade suggested that the more information police learned directly from community members, the better police could effectively combat crime.17
By the 1980s, most law enforcement agencies had adopted community-oriented policing practices.18 Around
12

1980, DOJ began to support community-oriented policing efforts through various implementation and research grants.19 Many police departments participated in “demonstration projects” in the early 1980s, “reflecting an innovative period for the development of practical application of the community policing paradigm.”20
Over the 1980s and early 1990s, community-oriented policing continued to gain momentum and wider acceptance by law enforcement agencies.21 It is estimated that by 1992, 50% of police departments in cities with populations of 50,000 or more had adopted some form of community policing.22 A 1994 survey found that 80% of police chiefs and over 50% of sheriffs questioned stated that their departments had already adopted community policing or desired to adopt it in the future.23
*1186 On December 20, 1993, President Clinton announced an award of approximately $50 million in grants to 74 cities to hire 658 more police officers “to put more police on the street and expand community policing.”24 Describing these first 74 awards of the Police Hiring Supplement Program25 as a “down payment” on a goal to hire 100,000 police officers across the country, President Clinton remarked, “we know community policing works.”26 Mayor Richard Riordan of Los Angeles campaigned on a pledge to put thousands more police officers on the street, and his newly elected administration secured on behalf of Los Angeles one of the first 74 awards, receiving $4 million to train and pay 54 new recruits.27 By May 1994, DOJ had awarded $100 million more to 176 jurisdictions to hire or rehire 1,365 officers.28
B. The Public Safety Partnership and Community Policing Act of 1994
Against this backdrop, Congress passed the Act to establish the COPS grant program. Pub. L. No. 103-322, §§ 10001–10003, 108 Stat. 1796, 1807–15 (codified as amended at 34 U.S.C. §§ 10381–10389). Enacted as part of the Violent Crime Control and Law Enforcement Act of 1994, the Act authorized grants for community-oriented policing: techniques that “strengthen the relationship between the police and the people they serve, fostering trust and increasing accountability.” H.R. Rep. No. 103-324, at 7 (1993). As a House Report stated, “[t]he newest development in law enforcement techniques

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is also one of the oldest—police officers walking a beat.” Id. at 6. The Act’s express purposes include “substantially increas[ing] the number of law enforcement officers interacting directly with members of the community (‘cops on the beat’)” and “provid[ing] additional and more effective training to law enforcement to enhance their problem solving, service, and other skills needed in interacting with members of the community.”29 § 10002, 108 Stat. at 1807. As reported *1187 out of the House Judiciary Committee, the bill was enacted “to allow grants to increase police presence, to expand and improve cooperative efforts between law enforcement agencies and members of the community to address crime and disorder problems, and otherwise to enhance public safety.” H.R. Rep. No. 103-324, at 1.
The Act rested on Congress’s findings that community-oriented policing would enhance public safety: “community-oriented policing (‘cops on the beat’) enhances communication and cooperation between law enforcement and members of the community; such communication and cooperation between law enforcement and members of the community significantly assists in preventing and controlling crime and violence, thus enhancing public safety.” 103 Cong. Rec. 23,376, 23,475 (1994). Similarly, the House Judiciary Committee Report noted three purposes for the COPS grants: “to increase police presence, to enhance police-community cooperation in addressing crime and disorder, and otherwise to enhance public safety.” H.R. Rep. No. 103-324, at 9 (emphasis added).
Consistent with the Act’s statutory purposes, Congress authorized the Attorney General to “make grants ... to increase police presence, to expand and improve cooperative efforts between law enforcement agencies and members of the community to address crime and disorder problems, and otherwise to enhance public safety.” § 10003, 108 Stat. at 1808 (inserting new sections 1701 to 1709 into title I of the Omnibus Crime Control and Safety Streets Act of 1968). In October 1994, Attorney General Janet Reno established the COPS Office to distribute and monitor congressional appropriations for statutorily authorized programs, including the COPS Hiring Program grant program.30
Nothing in the congressional record nor the Act itself remotely mentions immigration or immigration enforcement as a goal. And nothing in the Act discusses “federal partnerships” for civil immigration enforcement. In the quarter-century of the Act’s existence, Congress has not once denoted civil immigration enforcement as a
13

proper purpose for COPS grants.

C. COPS Hiring Program Grants

The Act, codified at 34 U.S.C. §§ 10381 to 10389, delegates to the Attorney General the authority to (1) “carry out a single grant program” under which he makes grants for twenty-three congressionally determined purposes, with permission to extend preferential consideration under three specified circumstances, 34 U.S.C. § 10381(a), (b), (c); (2) “prescribe by regulation or guidelines” information contained in applications for COPS grants, id. § 10382(b); and (3) oversee the ministerial processes involved in administering, monitoring, and evaluating funded projects, id. §§ 10385–10386. Congress periodically updates the statutory purposes for COPS Office grants. See, e.g., Law Enforcement Mental Health and Wellness Act of 2017, Pub. L. No. 115-113, 131 Stat. 2276, 2276 (2018) (codified at 34 U.S.C. § 10381(b)(23)) (adding “peer mentoring mental health and wellness pilot programs” as a purpose for COPS grants). These statutory provisions underscore Congress’s stated purposes in passing the Community Policing Act of 1994. See § 10002, 108 Stat. at 1807.

For COPS Hiring Program grants, Congress has appropriated funds to solicit applications and award grants for hiring or rehiring “law enforcement officers for deployment in community-oriented policing.” 34 U.S.C. § 10381(b)(1)–(2). In the history of the grant program, Congress has only *1188 ever appropriated funds for these two purposes. That is, Congress has yet to authorize funding for the remaining twenty-one purposes for which the COPS Office may make grants.

As Congress directed, jurisdictions must apply to the

Attorney General to receive COPS funding. Id. §

10382(a). Congress empowered the Attorney General to

prescribe the application’s form and contents but also

mandated several explicit application requirements. Id. §

10382(b), (c). Grant applicants must, for example,

“demonstrate a specific public safety need” and “explain

how the grant will be utilized to reorient the affected law

enforcement

agency’s

mission

toward

community-oriented policing or enhance its involvement

in or commitment to community-oriented policing.” Id. §

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(c)(2), (10). Grant applicants must also identify a “crime and disorder problem/focus area” that officers hired with COPS Hiring Program funding would address “to ensure that [applicants] satisfy the requirements for COPS Office funding” and “to ensure that ultimately the additional grant-funded officers ... will initiate or enhance [an] agency’s capacity to implement community policing strategies and approaches.”
Each year, the COPS Office scores and ranks each submitted application to determine which applications to fund. The electronic COPS Hiring Program application system assigns a specific (and undisclosed) number of points for each answer an applicant jurisdiction provides. The Office categorizes each question on the application as falling into the “fiscal health,” “crime,” or “community policing” categories; generally, answers in the “fiscal health” category account for 20% of the final score, answers to “crime” questions for 30%, and answers to “community policing” questions for 50%.
COPS grants are competitive; congressional appropriations have been historically inadequate to fund the amount of grant requests. Accordingly, since the fiscal year 2011 application cycle, the COPS Office has determined priority focus areas for the COPS Hiring Program and awarded bonus points to applications that focus on that year’s priority areas. The bonus points give a competitive advantage to the applicant. Jurisdictions also receive bonus points if catastrophic events have affected their law enforcement agencies. Furthermore, Congress permitted the Attorney General to “give preferential consideration, where feasible” specifically to applications that commit to contributing more than 25% of the grant to hiring and rehiring officers. Id. § 10381(c)(1). Congress also permitted the Attorney General to accord preferential consideration to applications from states with safe harbor laws for human trafficking victims—that is, for this limited factor unrelated to COPS grant purposes. See id. § 10381(c)(2)–(3). DOJ usually announces the awards by September 30 of each year.
D. Federal Funding in the Trump Administration
The Trump Administration was openly determined to deprive jurisdictions with so-called “sanctuary” policies
14

of federal funds. Five days after his inauguration, President Trump attempted to withhold federal funding from “sanctuary” jurisdictions by executive order in an effort to deliver on his campaign promise to “end the sanctuary cities that have resulted in so many needless deaths.”31 See *1189 Exec. Order No. 13,768, 82 Fed. Reg. 8799 (Jan. 25, 2017) (“Enhancing Public Safety in the Interior of the United States”). Section 9(a) of the executive order directs “the Attorney General and the Secretary” to “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.” Id. at 8801. Within three months, a federal district court preliminarily enjoined Section 9(a), a decision made permanent that fall. See County of Santa Clara v. Trump, 275 F. Supp. 3d 1196 (N.D. Cal. 2017), aff’d in part, vacated in part, remanded sub nom. City & County of San Francisco v. Trump, 897 F.3d 1225 (9th Cir. 2018); County of Santa Clara v. Trump, 250 F. Supp. 3d 497 (N.D. Cal. 2017). Our court agreed that the President’s attempt to wrest for his policy goals the power of the purse vested exclusively in Congress violated the U.S. Constitution’s separation of powers. City & County of San Francisco v. Trump, 897 F.3d 1225, 1231–35 (9th Cir. 2018).
In March 2017, Attorney General Jefferson B. Sessions III ordered a review of all DOJ activities, including all grant programs such as the COPS grant program. Memorandum from Jefferson B. Sessions III, U.S. Attorney Gen., to Heads of Dep’t Components & U.S. Attorneys, Supporting Federal, State, Local and Tribal Law Enforcement (Mar. 31, 2017).32 According to the March 2017 memorandum, this review would ensure that all DOJ activities “fully and effectively promote[d]” several “principles” to advance the DOJ mission statement. Id. at 2. One principle declared that “[c]ollaboration between federal and local law enforcement is important, and jurisdictions whose law enforcement agencies accept funding from the Department are expected to adhere to the Department’s grant conditions as well as to all federal laws.” Id.
This review resulted in major changes to COPS Office programs. For example, Attorney General Sessions’s directive reduced the COPS Collaborative Reform Initiative for Technical Assistance, which DOJ created to help reform beleaguered police departments, from a program that investigated and suggested reforms to police departments to a mere grant-making body. See Press Release, U.S. Dep’t of Justice, Department of Justice

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Announces Changes to the Collaborative Reform Initiative (Sep. 15, 2017).33 And, in July 2017, Attorney General Sessions limited the award of grants under the Edward Byrne Memorial Justice Assistance Grant (Byrne JAG) Program, which awards funding for local criminal justice efforts through a statutory formula, see 34 U.S.C. § 10152, to only those jurisdictions that “allow federal immigration access to detention facilities, and provide 48 hours notice before they release an illegal alien wanted by federal authorities.” Press Release, U.S. Dep’t of Justice, Attorney General Sessions Announces Immigration Compliance Requirements for Edward Byrne Memorial Justice Assistance Grant Programs (July 25, 2017).34 To date, every court to consider *1190 the challenges to immigration enforcement conditions the Trump DOJ imposed on the Byrne JAG grants has soundly rejected them as unconstitutionally exceeding DOJ’s statutory authority.35
Turning to the COPS Hiring Program grants, DOJ decided, for the first time in the fiscal year 2017 application cycle, to award bonus points to jurisdictions that committed to “partnering with the federal law enforcement to address illegal immigration.” Applicants could earn these bonus points by partnering with the federal government in two ways. First, they could select “illegal immigration” as the focus area on their applications.36 This focus area required jurisdictions to detail how newly hired officers would cooperate with federal immigration authorities through “information sharing, 287(g) partnerships, task forces and honoring detainers.”
These means of “partnering with the federal law enforcement” were well understood methods of federal deployment of local police officers in civil immigration enforcement. With “information sharing,” state and local police share arrest data with the Federal Bureau of Investigation (FBI). See Cristina Rodríguez, Enforcement, Integration, and the Future of Immigration Federalism, 5 J. on Migration & Hum. Security 509, 519 (2017). Pursuant to 8 U.S.C. § 1722, the FBI then shares that information with the Department of Homeland Security (DHS), which compares the arrest data to that in its own databases to determine whether an individual in state or local custody is removable. Id. A “287(g) partnership” authorizes the Attorney General in limited circumstances to enter into a formal agreement for state or local officers to act as immigration officers, “subject to the direction and supervision of the Attorney General.” 8 U.S.C. § 1357(g)(1), (3); see also Arizona v. United States, 567 U.S. 387, 408–09, 132 S.Ct. 2492, 183 L.Ed.2d 351
15

(2012). The “task force” model of 287(g) agreements “makes immigration status checks part of state or local police work in the field.” Hiroshi Motomura, Immigration Outside the Law 79 (2014); see also Arizona, 567 U.S. at 410–13, 132 S.Ct. 2492. Finally, “honoring detainers” asks state and local law enforcement to comply with DHS requests to advise the agency of when individuals in their custody would otherwise be released, so that DHS can arrange to assume custody. See 8 C.F.R. § 287.7(a); see also City & County of San Francisco, 897 F.3d at 1241 n.7.
Second, two months after the 2017 applications were due, DOJ announced a bonus consideration: applicants could submit a “Certification of Illegal Immigration Cooperation” (Cooperation Certification), which required a jurisdiction’s highest-ranking law enforcement official and government *1191 executive to certify that the jurisdiction had already or would “implement rules, regulations, policies, and/or practices that” provide DHS (1) “access to any of the governing body’s correctional or detention facilities in order to meet with an alien (or an individual believed to be an alien) and inquire as to his or her right to be or to remain in the United States” (the “access” requirement) and (2) “advance notice as early as practicable ... to DHS regarding the scheduled release date and time of an alien in the jurisdiction’s custody when DHS requests such notice in order to take custody of the alien” (the “notice” requirement). Announcing the Cooperation Certification option, Attorney General Sessions explained that local and state law enforcement agency cooperation with federal authorities “make[s] all of us safer by helping remove dangerous criminals from our communities.” Press Release, U.S. Dep’t of Justice, Department of Justice Announces Priority Consideration Criteria for COPS Office Grants (Sep. 7, 2017).37 At no point has DOJ indicated that the “illegal immigration” focus area and Cooperation Certification (together, the “federal immigration preferences”) are in any way related to community-oriented policing.
In fiscal year 2017, the COPS Office received 1142 applications requesting $409,028,743 in funding. Los Angeles requested $3.125 million to hire 25 officers for the city’s Community Safety Partnership Program. It neither selected “illegal immigration” as its focus area nor submitted a signed Cooperation Certification. One out of the 90 large applicant jurisdictions and 6 out of the 1029 small applicant jurisdictions selected “illegal immigration” as a focus area. Approximately 39% of the large jurisdictions and 47% of the small jurisdictions submitted the Cooperation Certification.

City of Los Angeles v. Barr, 929 F.3d 1163 (2019) 19 Cal. Daily Op. Serv. 6790, 2019 Daily Journal D.A.R. 6511
The COPS Office denied Los Angeles’s application on November 28, 2017. The week before, on November 20, 2017, the COPS Office awarded $98,503,539 to 179 jurisdictions for the fiscal year 2017 application cycle. Attorney General Sessions personally announced the 2017 awards. He recognized that eighty percent of the grantees “have agreed to cooperate with federal immigration authorities in their detention facilities” and “applaud[ed grantees’] commitment to the rule of law and to ending violent crime, including violent crime stemming from illegal immigration.”
Aside from abstract allusions to public safety, DOJ has never articulated how the federal immigration preferences relate to community-oriented policing. This is no doubt because enforcement of federal immigration policy is entirely unrelated to community-oriented policing, as amici current and former prosecutors and law enforcement leaders38 point out. And this is why DOJ’s imposition of the illegal immigration focus area and Cooperation Certification was enjoined by the district court: by imposing conditions that are unrelated—indeed, antithetical—to the goals of community-oriented policing, DOJ exceeded its delegated powers to administer the COPS grant program.
II.
DOJ exceeded its statutory authority specifically by giving preference to jurisdictions willing to partner with federal immigration enforcement authorities. Its decision to implement both the illegal immigration focus area and the Cooperation Certification is foreclosed by the text, *1192 structure, and purpose of the Community Policing Act.39 See La. Pub. Serv. Comm’n v. FCC, 476 U.S. 355, 359, 106 S.Ct. 1890, 90 L.Ed.2d 369 (1986). “[A]n agency literally has no power to act ... unless and until Congress confers power upon it.” Id. at 374, 106 S.Ct. 1890. Here, the Act both prescribes the directives the Attorney General must follow and circumscribes the discretion he may exercise in executing the COPS grant program. “When Congress limits the purpose for which a grant can be made, it can be presumed that it intends that the dispersing agency make its allocations based on factors solely related to the goal of implementing the stated statutory purposes in a reasonable fashion, rather
16

than taking irrelevant or impermissible factors into account.” Robbins v. Reagan, 780 F.2d 37, 48 (D.C. Cir. 1985) (per curiam). When agencies “act improperly ... what they do is ultra vires.” City of Arlington v. FCC, 569 U.S. 290, 297, 133 S.Ct. 1863, 185 L.Ed.2d 941 (2013). The federal immigration preferences flout the clear congressional purpose of COPS grants—to promote partnership between local law enforcement and the communities they serve—by instead favoring partnerships between local police and federal immigration authorities. See 34 U.S.C. § 10381(b)(1)–(2); H.R. Rep. No. 103-324, at 7.
Congress did not authorize COPS grants for anything other than placing additional state and local cops on the beat to promote community partnerships. 34 U.S.C. § 10382 authorizes DOJ to evaluate the applications of law enforcement agencies competing for limited grant funding, but in exercising this discretion, DOJ must adhere to Congress’s express purpose of promoting local and state law enforcement agencies’ efforts to “interact[ ] directly with members of the community.” § 10002, 108 Stat. at 1807; see also 34 U.S.C. § 10381(b)(1)–(2); cf. Alexander v. Sandoval, 532 U.S. 275, 291, 121 S.Ct. 1511, 149 L.Ed.2d 517 (2001) (“Agencies may play the sorcerer’s apprentice but not the sorcerer himself.”). For example, grant applications must require law enforcement agencies to “explain how the grant will be utilized to reorient the affected law enforcement agency’s mission toward community-oriented policing or enhance its involvement in or commitment to community-oriented policing.” 34 U.S.C. § 10382(c)(10). Congress also specifically permitted the Attorney General to give “preferential consideration” to applicants in only three specified circumstances, none of which is related to immigration. Id. § 10381(c). For example, section 10381(c)(2) and (3) specifically encourages states and localities to adopt a federal policy priority—treating human trafficking victims leniently—otherwise unrelated to the goal of promoting community-oriented policing. The clear import of this section demonstrates Congress’s intention to authorize DOJ to accord preference beyond *1193 community-oriented policing only where it expressly authorizes DOJ to do so.40 If, as DOJ urges, the agency has unfettered discretion to impose additional preferences, subsection (c) has no meaning. See Chubb Custom Ins. Co. v. Space Sys./Loral, Inc., 710 F.3d 946, 965–66 (9th Cir. 2013).
The illegal immigration focus area impermissibly extends preferences to partnerships between local police and federal immigration authorities, contravening the Act’s

City of Los Angeles v. Barr, 929 F.3d 1163 (2019)
19 Cal. Daily Op. Serv. 6790, 2019 Daily Journal D.A.R. 6511
identified purpose of “law enforcement officers interacting directly with members of the community.” § 10002, 108 Stat. at 1807. The current COPS grant application instructions require jurisdictions that select the illegal immigration focus area to “specify your focus on partnering with the federal law enforcement to address illegal immigration for information sharing, 287(g) partnerships, task forces and honoring detainers.” It is telling that in no other focus area on the application is the applicant required to explain how it would use the grant to partner with the federal government as opposed to partnering with the community it serves. Furthermore, whereas the “illegal immigration” focus area mandates specific commitment to four conjunctive avenues of cooperation with federal immigration enforcement, all other focus areas allow for wide discretion by applicants to propose program ideas implementing those areas. For example, the “drug abuse education, prevention, and intervention” focus area instructs applicants to “specify your focus on education, prevention, and intervention to combat drug use and abuse; for example, marijuana, heroin, prescription opioids, etc.” (Emphases added).
Congress never contemplated that COPS funds would be used to finance state or local police officers performing the function of federal immigration officers, as certifying “section 287(g) partnerships” would suggest. See 8 U.S.C. § 1357(g)(1). Under § 1357 itself, local police officers operating under an agreement to carry out the functions of federal immigration officers must be “at the expense of the State or political subdivision.” Id. Congress could not have contemplated the absurdity of the Attorney General awarding grants to fund the section 287(g) partnerships that states were statutorily bound to pay for themselves. And it’s difficult to see how awarding a grant for state or local police to act as federal immigration officers furthers the congressional purpose of community-oriented policing.41
The required focus on “honoring detainers” is no less problematic. Detainers, federal immigration enforcement requests for local jurisdictions to use their own funds to detain individuals in their custody after the individuals’ scheduled release, foist upon local police federal policy priorities that have nothing to do with community-oriented policing. See 8 C.F.R. § 287.7; *1194 City & County of San Francisco, 897 F.3d at 1241 n.7. DOJ offers no explanation plausibly connecting detainer requests to “enhanc[ing] police-community cooperation.” H.R. Rep. No. 103-324, at 9 (emphasis added).
17

The Cooperation Certification is likewise ultra vires. DOJ argues that the federal immigration preferences are a permissible exercise of DOJ’s authority under § 10381(b)(1) and (2) because “illegal immigration enforcement is a public safety issue” that “can be addressed most effectively through the principles of community policing that [the COPS Hiring Program] promotes.” But providing federal immigration authorities advance notice of detainees’ release and access to local jails, as the Cooperation Certification demands, is completely untethered to “the principles of community policing” authorizing the COPS grant program. See 34 U.S.C. § 10381(b)(1)–(2). It may be that illegal immigration enforcement is a public safety issue, but, as the City of Los Angeles argues, demanding that local police partner with federal immigration enforcement could well erode the trust and mutual respect on which community policing depend, to the detriment of public safety. A 2017 Pew Research Center survey reported that two-thirds of Hispanic immigrants and about half of all Hispanic adults in the United States worry “a lot” or “some” about the deportation of themselves or someone close to them.42 With this rising fear of federal immigration enforcement, police officers have reported a concomitant decline in crime reporting. As of April 2017, for example, reports in Los Angeles of sexual assault among Latinos dropped 25% and reports of domestic violence by 10% compared to the year prior.43 Chief of the Los Angeles Police Department Charlie Beck explained that these downturns were likely due to fear of the federal government.44 Unreported and therefore unpunished crimes lead to “greater numbers of perpetrators at large,” posing a clear threat to community safety.45 In fact, a 2012 COPS Office study identified federal immigration enforcement as detrimental to “local trust-building” because immigrant communities “may attribute immigration raids or other federal immigrant enforcement activities to local police and, therefore, mistrust community policing efforts.”46
*1195 The Seventh Circuit has similarly recognized that the Cooperation Certification’s notice and access requirements could result in under-reported crime and thereby undermine public safety:

[P]ersons who are here

unlawfully—or who have friends or

family

members

here

unlawfully—might

avoid

contacting local police to report

City of Los Angeles v. Barr, 929 F.3d 1163 (2019) 19 Cal. Daily Op. Serv. 6790, 2019 Daily Journal D.A.R. 6511

crimes as a witness or a victim if

they fear that reporting will bring

the scrutiny of the federal

immigration authorities to their

home. ... [T]he reluctance to report

... could be magnified in

communities where reporting could

turn a misdemeanor into a

deportation. And the failure to

obtain ... cooperation could both

hinder law enforcement efforts and

allow criminals to freely target

communities with a large

undocumented

population,

knowing that their crimes will be

less likely to be reported.

City of Chicago, 888 F.3d at 280.
All policing is ultimately designed with public safety in mind. But, all policing is not community-oriented policing, which fosters partnership between the police and their communities, not the partnerships between police and federal immigration enforcement that the federal immigration preferences require. Because such a focus is directly at odds with, and arguably undermines the very purpose of, the Act and the COPS grant program, the Attorney General exceeded his authority by adding them as preferences for grant awards.47

III.
The COPS grant program was enacted to increase the number of “cops on the beat” who would enter into partnership with their communities, furthering trust and respect, with the ultimate goal of public safety. DOJ may have imposed the federal immigration preferences because it shares that goal of public safety, but that is where the mutuality between the Community Policing Act and DOJ’s immigration enforcement policy ends. The preference for applicants who abandon community partnerships in favor of federal immigration partnerships is directly contrary to the language, structure, history, and purpose of the Act. By enacting the COPS grant program, Congress did not authorize DOJ to coopt local and state officers into carrying out the current or any other presidential administration’s agenda, unrelated to community-oriented policing.48 Cooperation between local police and federal immigration enforcement oppugns the police-community partnership the COPS Hiring Program was created to promote. I would therefore affirm the district court’s order permanently enjoining DOJ from including the illegal immigration focus area and Cooperation Certification on its COPS grant applications and *1196 from using these considerations as preferences in awarding COPS grants.
All Citations
929 F.3d 1163, 19 Cal. Daily Op. Serv. 6790, 2019 Daily Journal D.A.R. 6511

Footnotes

1

The Act includes other technical requirements for awarding grants. For instance, each state that applies or that

contains an applying entity must receive, together with any grantees in the state, at least .5 percent of a fiscal year’s

total allocation for the grant program. 34 U.S.C. § 10381(f). Second, allocated funds must be divided equally

between small (fewer than 150,000 people) and large (more than 150,000 people) jurisdictions. Id. §

10261(a)(11)(B). Third, a grant cannot account for more than 75 percent of a recipient program’s costs, although the

Attorney General can waive this requirement. Id. § 10381(g).

2

Contrary to the dissent, Dissent at 1183 n.1, 1187–88, Congress has set aside funds that could be expended for any

of § 10381’s purposes. Appropriations bills have directed funds “for community policing development activities in

furtherance of [§ 10381’s purposes]” and “for the collaborative reform model of technical assistance in furtherance

of [§ 10381’s purposes],” Consolidated Appropriations Act, Pub. L. 115-31, Div. B, Tit. II, 131 Stat. 135, 207 (2017), as

well as for the hiring and rehiring of additional career law enforcement officers.

18

City of Los Angeles v. Barr, 929 F.3d 1163 (2019) 19 Cal. Daily Op. Serv. 6790, 2019 Daily Journal D.A.R. 6511

3

A § 287(g) partnership is a written agreement between the Attorney General and a state or a local jurisdiction,

under which “an officer or employee of the State or subdivision, who is determined by the Attorney General to be

qualified to perform a function of an immigration officer in relation to the investigation, apprehension, or detention

of aliens in the United States (including the transportation of such aliens across State lines to detention centers),

may carry out such function at the expense of the State or political subdivision and to the extent consistent with

State and local law.” 8 U.S.C. § 1357(g)(1).

4

An “immigration detainer” is issued by the Department of Homeland Security (DHS) to advise another law

enforcement agency that DHS seeks custody of an alien for arrest and removal, and serves as “a request that such

agency advise the Department, prior to release of the alien, in order for the Department to arrange to assume

custody, in situations when gaining immediate physical custody is either impracticable or impossible.” 8 C.F.R. §

287.7(a). Upon DHS’s request, a law enforcement agency “shall maintain custody of the alien for a period not to

exceed 48 hours,” excluding weekends and holidays, “in order to permit assumption of custody by” DHS. Id. §

287.7(d).

5

According to DOJ, it “does not disclose the number of points assigned to any particular answer, because disclosing

the scoring system could skew the application process and subject that process to manipulation.”

6

Our analysis requires us to bridge one gap in existing Spending Clause precedent—that the principles of Dole and

NFIB apply to agency-drawn conditions on grants to states and localities just as they do to conditions Congress

directly places on grants. In both Dole and NFIB, Congress had written the challenged conditions directly into the

statutes authorizing the grants. Here, conversely, Congress delegated the task of specifying these conditions to DOJ.

We see no reason why the addition of an agency middleman either expands or contracts Congress’s power to

“provide for the ... general Welfare,” U.S. Const. art. I, § 8, cl. 1, and thus analyze DOJ’s conditions under the

principles of Dole and NFIB.

7

Because DOJ’s scoring process does not coerce an applicant or authorize the federal government to exercise any

control over state or local law enforcement, it does not violate 34 U.S.C. § 10228(a), which states: “Nothing 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.” Id. § 10228(a). We reject Los Angeles’s argument to the contrary.

8

In addition to listing the immigration focus area, the Application Guidelines list multiple other focus areas, including

violent crime, traffic and pedestrian problems, and “quality of life policing.” While the Act does not expressly

mention any of these focus areas, its gives DOJ broad discretion to identify and rank such a range of goals. Given

DOJ’s authority to administer the grant program along these lines, the dissent’s argument that immigration

enforcement cannot be a permissible focus area because the Act makes no mention of immigration enforcement,

Dissent at 1187, is meritless.

9

Los Angeles argues that § 287(g) partnerships cannot be part of a federally funded initiative because 8 U.S.C. §

1357(g)(1) requires § 287(g) partnerships to be undertaken “at the expense of the State or political subdivision.” See

also Dissent at 1193 (stating that a local officer’s participation in a § 287(g) partnership “must be ‘at the expense of

the State or political subdivision’ ” (emphasis added) (quoting 8 U.S.C. § 1357(g)(1))). Los Angeles and the dissent

misunderstand both § 1357(g)(1) and the grant program. Section 1357(g)(1) clarifies only that states and localities

are not entitled to federal reimbursement for work carried out in a § 287(g) partnerships. See 8 U.S.C. § 1357(g)(1)

(stating that an officer or employee of the state or subdivision who is qualified to perform certain functions of an

immigration officer “may carry out such function at the expense of the State or political subdivision”). The statute

does not forbid the use of federal funds to assist a state or local entity that has entered into such a partnership.

Moreover, DOJ has made clear that grant funds may be used only to hire or rehire officers, not for any state or local

19

City of Los Angeles v. Barr, 929 F.3d 1163 (2019) 19 Cal. Daily Op. Serv. 6790, 2019 Daily Journal D.A.R. 6511

expenses of a § 287(g) agreement.

10 The dissent offers a lengthy political history of community-oriented policing, and asserts that Congress incorporated the dissent’s view of the term “community-oriented policing” in the statute. Dissent at –1184–86, 1185 n.39. But Congress enacts statutory text, not political history, and the contours of “community-oriented policing” are not “unambiguously expressed by the statutory language.” Zuni Pub. Sch. Dist. No. 89 v. Dep’t of Educ., 550 U.S. 81, 93, 127 S.Ct. 1534, 167 L.Ed.2d 449 (2007). “Policing” that is “oriented” toward the “community” can describe a broad set of policing techniques. These techniques may include direct police interactions with the community in some circumstances. But the statute does not limit community-oriented policing to such strategies, and other techniques may be better suited to address the community’s priorities, such as public safety issues related to illegal immigration. As the dissent acknowledges, problem solving—“the process through which the specific concerns of communities are identified and through which the most appropriate remedies to abate these problems are found”—is a key component of community-oriented policing, Dissent at 1184–85, and a range of different remedies may be valid for furthering the statute’s public safety goals. In light of the statute’s broad purposes, we conclude “the language of the statute is broad enough to permit” DOJ’s reasonable definition of community-oriented policing. Zuni Pub. Sch. Dist., 550 U.S. at 100, 127 S.Ct. 1534.

11 Although unnecessary to our analysis, the legislative history of the Act supports DOJ’s broad interpretation of community-oriented policing. While facilitating increased interaction between law enforcement and members of the community was one focus of community-oriented policing as described in the legislative history, see H.R. Rep. No. 103-324, at 6 (1993), the Judiciary Committee report on the bill also notes intent to reduce law enforcement’s reliance on reactive policing and renew law enforcement’s ability “to anticipate and prevent crime by use of community-oriented, problem solving techniques,” id. DOJ’s definition of community-oriented policing incorporates the focus on community interaction with the additional goal of supporting proactive policing that involves “analyzing crime and disorder problems, working with the community on a search for alternative solutions, implementing solutions, and evaluating their effectiveness.” Id. at 7.

12 See, e.g., Bianca E. Bersani, An Examination of First and Second Generation Immigrant Offending Trajectories, 31 Just. Q. 315, 335 (2014); Jennifer S. Wong, Laura J. Hickman & Marika Suttorp-Booth, Examining Recidivism Among Foreign-Born Jail Inmates: Does Immigration Status Make a Difference over the Long Term?, 16 Global Crime 265, 280–81 (2015).

1

The majority opinion is simply inaccurate on this point. See Majority Op. at 1170 n.2. It is only for the COPS Hiring

Program—the grant program at issue here—that Congress has ever appropriated funds for the community-oriented

policing purposes delineated in 34 U.S.C. § 10381(b)(1) and (2).

2

I agree with the majority and the district court that the City of Los Angeles has standing and that the case is not

moot under the “capable of repetition yet evading review” exception.

3

Bureau of Justice Assistance, U.S. Dep’t of Justice, Understanding Community Policing: A Framework for Action vii

(1994) [hereinafter 1994 Monograph].

4

Id. at 5–7 (quoting Sir Robert Peel’s remarks upon establishing the London Metropolitan Police).

5

Gayle Fisher-Stewart, Int’l City/Cty. Mgmt. Ass’n, Community Policing Explained: A Guide for Local Governments 3

(2007) [hereinafter 2007 Local Government Guide] (report created with COPS Office support); George L. Kelling &

Mark H. Moore, The Evolving Strategy of Policing, Perspectives on Policing, Nov. 1988, at 8–9 (citation omitted)

(publication of National Institute of Justice, U.S. Department of Justice, and the Program in Criminal Justice Policy

and Management, John F. Kennedy School of Government, Harvard University); Michael Norman, One Cop, Eight

20

City of Los Angeles v. Barr, 929 F.3d 1163 (2019) 19 Cal. Daily Op. Serv. 6790, 2019 Daily Journal D.A.R. 6511

Square Blocks, N.Y. Times Mag. (Dec. 12, 1993), https://nyti.ms/29jx5SU (last visited May 22, 2019).

6

Kelling & Moore, supra note 5, at 8.

7

Id.

8

1994 Monograph, supra note 3, at 6.

9

Kelling & Moore, supra note 5, at 9.

10 See 1994 Monograph, supra note 3, at 7; see also 2007 Local Government Guide, supra note 5, at 3.

11 See Kelling & Moore, supra note 5, at 11–12.

12 Id. at 10; Norman, supra note 5.

13 See, e.g., 1994 Monograph, supra note 3, at 13–17; Kelling & Moore, supra note 5, at 12; Office of Cmty. Oriented Policing Servs., U.S. Dep’t of Justice, Community Policing Defined 1 (2014); U.S. Gen. Accounting Office, GAO/GGD-96-4, Community Policing: Information on the “COPS on the Beat” Grant Programs 1 (1995) [hereinafter 1995 GAO Report].

14 1994 Monograph, supra note 3, at 13.

15 Kelling & Moore, supra note 5, at 10.

16

Id.

17

Id.

18 2007 Local Government Guide, supra note 5, at 3.

19 1995 GAO Report, supra note 13, at 1.

20 Willard M. Oliver & Elaine Bartgis, Community Policing: A Conceptual Framework, 21 Policing: Int’l J. Police Strategy & Mgmt. 490, 490 (1998).

21 See Norman, supra note 5.

22 Oliver & Bartgis, supra note 20, at 490.

23

Id.

24

Community

Policing

Grants

Announcement,

C-SPAN

(Dec.

20,

1993),

https://www.c-span.org/video/?53243-1/community-policing-grants-announcement (last visited May 22, 2019);

Policing Hiring Supplement Program, Bureau of Justice Assistance Fact Sheet (Bureau of Justice Assistance, U.S.

Dep’t of Justice), Nov. 1995, at 2, https://www.ncjrs.gov/pdffiles/polhirng.pdf (last visited May 22, 2019); see also

Sharon LaFraniere et al., FY 1994, Wash. Post (Apr. 9, 1993),

https://www.washingtonpost.com/archive/politics/1993/04/09/fy-1994/f62d729a-d631-44cf-8a2c-c4d90b96f44f/?

utm_term=.d4d4d6569379 (last visited May 22, 2019) (“Clinton proposes [in his FY 1994 budget] spending $50

21

City of Los Angeles v. Barr, 929 F.3d 1163 (2019) 19 Cal. Daily Op. Serv. 6790, 2019 Daily Journal D.A.R. 6511
million on ‘community policing’ programs that strike to get officers out of patrol cars and more in touch with neighborhoods.”).
25 DOJ distributed funds for the Police Hiring Supplement Program from the Supplemental Appropriations Act of 1993, Pub. L. No. 103-50, 107 Stat. 241. See David Teasley & JoAnne O’Bryant, Cong. Res. Serv., 97-196 GOV, The Community Oriented Policing Services (COPS) Program: An Overview 3 (2003).
26 Community Policing Grants Announcement, supra note 24.
27 NBC Today Show: Los Angeles Gets Federal COPS Grant—But Is It Enough? (NBC television broadcast Dec. 21, 1993) (referencing Mayor Richard Riordan’s campaign promise to put 3,500 new officers on the street).
28 Policing Hiring Supplement Program, supra note 24, at 2.
29 The other two stated purposes are to “encourage the development and implementation of innovative programs to permit members of the community to assist State, Indian tribal government, and local law enforcement agencies in the prevention of crime in the community” and to “encourage the development of new technologies to assist State, Indian tribal government, and local law enforcement agencies in reorienting the emphasis of their activities from reacting to crime to preventing crime.” Id.
30 Teasley & O’Bryant, supra note 25, at 3. The COPS Hiring Program is one of six grant programs the COPS Office administers.
31 Philip Bump, Here’s What Donald Trump Said in His Big Immigration Speech, Annotated, Wash. Post (Aug. 31, 2016), http://wapo.st/2cg2kS9?tid=ss_tw&utm_term=.146ecbf7c567 (last visited May 23, 2019); see also Office of the Press Sec’y, President Donald J. Trump Taking Action Against Illegal Immigration, White House (June 28, 2017), http://www.whitehouse.gov/the-pressoffice/2017/06/28/president-donald-j-trump-taking-action-against-illegal-im migration (last visited May 23, 2019) (quoting the President’s August 31, 2016, remarks).
32 https://www.justice.gov/opa/press-release/file/954916 (last visited May 23, 2019).
33 https://www.justice.gov/opa/pr/department-justice-announces-changes-collaborative-reform-initiative (last visited May 23, 2019); see also Mary Kay Mallonee & Eli Watkins, DOJ Scaling Back Program to Reform Police Departments, CNN Pol. (Sep. 15, 2017), https://www.cnn.com/2017/09/15/politics/dojpolice-program/index.html (last visited May 23, 2019).
34 http://www.justice.gov/opa/pr/attorney-general-sessions-announces-immigration-compliance-requirements-edwar d-byrne-memorial (last visited May 23, 2019).
35 See City of Philadelphia v. Attorney Gen., 916 F.3d 276, 284–91 (3d Cir. 2019); City of Chicago v. Sessions, 888 F.3d 272, 283–87 (7th Cir.), vacated in part on other grounds, No. 17-2991, 2018 WL 4268817 (7th Cir. June 4, 2018); New York v. Dep’t of Justice, 343 F. Supp. 3d 213, 227–31 (S.D.N.Y. 2018), appeal docketed sub nom. City of New York v. Whitaker, No. 19-275 (2d Cir. Jan. 28, 2019); City & County of San Francisco v. Sessions, 349 F. Supp. 3d 924, 945–48, 954–55 (N.D. Cal. 2018), appeal docketed sub nom. City & County of San Francisco v. Whitaker, No. 18-17308 (9th Cir. Dec. 4, 2018); City of Chicago v. Sessions, 321 F. Supp. 3d 855, 874–76 (N.D. Ill. 2018); City of Philadelphia v. Sessions, 309 F. Supp. 3d 289, 321 (E.D. Pa. 2018), aff’d in part, vacated in part sub nom. City of Philadelphia v. Attorney Gen., 916 F.3d 276 (3d Cir. 2019).
36 The other fiscal year 2017 focus areas were: “child and youth safety focus,” “drug abuse education, prevention, and
22

City of Los Angeles v. Barr, 929 F.3d 1163 (2019) 19 Cal. Daily Op. Serv. 6790, 2019 Daily Journal D.A.R. 6511

intervention,” “homeland security problems,” “nonviolent crime problems and quality-of-life policing,” “building trust and respect,” “traffic/pedestrian safety problems,” and “violent crime problems.”

37 https://www.justice.gov/opa/pr/department-justice-announces-priority-consideration-criteria-cops-office-grants (last visited May 23, 2019).

38 The amici include current and former assistant U.S. attorneys, DOJ attorneys, district attorneys, police department chiefs, state’s attorneys, and sheriffs.

39 The majority goes astray by finding no meaning in Congress’s use of the term “community-oriented policing” and then deferring under Chevron to DOJ’s Orwellian effort to define “community-oriented policing” to include “partnering with federal law enforcement to address illegal immigration.” Chevron deference is particularly unwarranted here because we can discern congressional intent “through the use of the traditional techniques of statutory interpretation.” Ariz. Cattle Growers’ Ass’n v. U.S. Fish & Wildlife, 273 F.3d 1229, 1237 (9th Cir. 2001) (quoting Chem. Mfrs. Ass’n v. Nat. Res. Def. Council, Inc., 470 U.S. 116, 152, 105 S.Ct. 1102, 84 L.Ed.2d 90 (1985)); see Chevron, U.S.A., Inc. v. Nat. Res. Def. Council, Inc., 467 U.S. 837, 104 S.Ct. 2778, 81 L.Ed.2d 694 (1984). As the Supreme Court made clear in Chevron, “[t]he judiciary is the final authority on issues of statutory construction and must reject administrative constructions which are contrary to clear congressional intent.” Chevron, 467 U.S. at 843 n.9, 104 S.Ct. 2778.

40 Congress well understood the problems of illegal immigration when it enacted the Community Policing Act. In fact, title XIII of the Violent Crime Control and Law Enforcement Act of 1994 (of which the Community Policing Act comprises title I) addresses “criminal aliens and immigration enforcement.” See §§ 130001–130010, 108 Stat. at 2023–31. Nonetheless, Congress chose to omit illegal immigration in the Community Policing Act.

41 It is the majority opinion that distorts the plain language of § 1357(g)(1), which reads: “the Attorney General may enter into a written agreement with a State, or any political subdivision of a State, pursuant to which an officer or employee of the State or subdivision, who is determined by the Attorney General to be qualified to perform a function of an immigration officer in relation to the investigation, apprehension, or detention of aliens in the United States (including the transportation of such aliens across State lines to detention centers), may carry out such function at the expense of the State or political subdivision and to the extent consistent with State and local law.”

42 Latinos and the New Trump Administration, Pew Research Ctr.: Hispanic Trends (Feb. 23, 2017), http://www.pewhispanic.org/2017/02/23/latinos-and-the-new-trump-administration/ (last visited May 23, 2019).

43 Jennifer Medina, Too Scared to Report Sexual Abuse. The Fear: Deportation., N.Y. Times (Apr. 30, 2017), https://nyti.ms/2pifXFC (last visited May 23, 2019) (reporting “a sharp downturn in reports of sexual assault and domestic violence among Latinos throughout the country [since the 2016 presidential election that] many experts attribute ... to fears of deportation”); see also James Queally, Fearing Deportation, Many Domestic Violence Victims Are Steering Clear of Police and Courts, L.A. Times (Oct. 9, 2017), https://www.latimes.com/local/lanow/la-me-ln-undocumented-crime-reporting-20171009-story.html (last visited May 23, 2019).

44 Medina, supra note 43.

45 Rafaela Rodrigues et al., Nat’l Immigrant Women’s Advocacy Project, Promoting Access to Justice for Immigrant and

Limited English Proficient Crime Victims in an Age of Increased Immigration Enforcement: Initial Report from a 2017

National

Survey

103

(2018),

http://library.niwap.org/wp-content/uploads/Immigrant-Access-toJustice-National-Report.pdf (last visited May 23,

23

City of Los Angeles v. Barr, 929 F.3d 1163 (2019) 19 Cal. Daily Op. Serv. 6790, 2019 Daily Journal D.A.R. 6511
2019). 46 Pradine Saint-Fort et al., Engaging Police in Immigrant Communities: Promising Practices from the Field 4 (Oct.
2012), https://goo.gl/ZGQfJA (last visited May 23, 2019) (funded by and published in partnership with the COPS Office). 47 Because I would hold that the DOJ’s imposition of the federal immigration preferences is ultra vires, my analysis does not reach the spending clause or Administrative Procedure Act violations. Whichever of the three violations we consider, however, the fundamental point is the same: Congress did not authorize the Attorney General to act with unfettered discretion in imposing conditions for COPS grants unrelated to community-oriented policing. 48 As the district court noted, DOJ’s “broad interpretation of [its] authority carries extraordinary implications. If the Attorney General can favor applicants based on any factors relevant to public safety, he enjoys nearly limitless discretion to select grant awardees in ways not even tangentially related to community policing.” Today’s political agenda is to increase federal immigration enforcement; tomorrow’s may be to increase enforcement of federal gun registration and licensing. Both are related to public safety; neither is related to community-oriented policing.
24

 </s> City of Los Angeles v. Barr, 941 F.3d 931 (2019) 19 Cal. Daily Op. Serv. 10,483, 2019 Daily Journal D.A.R. 10,164

941 F.3d 931 United States Court of Appeals, Ninth Circuit.
CITY OF LOS ANGELES, Plaintiff-Appellee, v.
William P. BARR, Attorney General; Alan R. Hanson, in his official capacity as Acting Assistant
Attorney General of the Office of Justice Programs; Russell Washington, in his official
capacity as Acting Director of the Office of Community Oriented Policing Services; United
States Department of Justice, Defendants-Appellants.
No. 18-56292 |
Argued and Submitted April 10, 2019 Pasadena, California |
Filed October 31, 2019
Synopsis Background: City brought action for injunctive relief against Department of Justice (DOJ), seeking to enjoin DOJ’s implementation of its requirements that state and local governmental recipients of federal formula grants for criminal justice programs comply with Department of Homeland Security (DHS) requests for advance notice of a detained alien’s release date and time, and allow DHS agents access to detained aliens upon request. The United States District Court for the Central District of California, Manuel L. Real, J., 2018 WL 6071072, granted preliminary injunction to city. DOJ appealed.
Holdings: The Court of Appeals, Ikuta, Circuit Judge, held that:
city was likely to succeed on merits of claim that DOJ’s requirements for cooperating with federal immigration authorities were not “special conditions” within meaning of Assistant Attorney General’s authority;
city was likely to succeed on merits of claim that DOJ’s requirements for cooperating with federal immigration authorities were not “priority purposes” within meaning of Assistant Attorney General’s authority; and
1

federal statutes requiring state and local governmental recipients of formula grants for criminal justice programs to report certain programmatic information, and to certify their coordination with affected agencies, did not authorize DOJ’s requirements for cooperating with federal immigration authorities.
Affirmed.
Wardlaw, Circuit Judge, filed an opinion concurring in the judgment.
Procedural Posture(s): On Appeal; Motion for Preliminary Injunction.
Attorneys and Law Firms
*933 Jesse Panuccio (argued), Associate Attorney General; Mark B. Stern, Daniel Tenny, Katherin Twomey Allen, Laura E. Myron, and Brad Hinshelwood, Appellate Staff; Hashim M. Mooppan, Deputy Assistant Attorney General; Nicola T. Hanna, United States Attorney; Joseph H. Hunt, Assistant Attorney General; Civil Division, United States Department of Justice, Washington, D.C.; for Defendants-Appellants.
Neema T. Sahni (argued), Mitchell A. Kamin, and Mónica Ramirez Almadani, Covington & Burling LLP, Los Angeles, California; David M. Zionts, Ivano M. Ventresca, and Benjamin L. Cavataro, Covington & Burling LLP, Washington, D.C.; Michael N. Feuer, City Attorney; James P. Clark, Chief Deputy City Attorney; Leela A. Kapur, Executive Assistant City Attorney; Valerie L. Flores, Managing Senior Assistant City Attorney; Michael Dundas, Deputy City Attorney; Office of the City Attorney, Los Angeles, California; for Plaintiff-Appellee.
Margaret L. Carter and Daniel R. Suvor, O’Melveny & Myers LLP, Los Angeles, California, for Amici Curiae 20 Counties and Cities, Metropolitan Area Planning Council, and International Municipal Lawyers Association.
Appeal from the United States District Court for the Central District of California, Manuel L. Real, District Judge, Presiding, D.C. No. 2:17-cv-07215-R-JC
Before: Kim McLane Wardlaw, Jay S. Bybee, and Sandra S. Ikuta, Circuit Judges.

City of Los Angeles v. Barr, 941 F.3d 931 (2019) 19 Cal. Daily Op. Serv. 10,483, 2019 Daily Journal D.A.R. 10,164

Concurrence by Judge Wardlaw
OPINION
IKUTA, Circuit Judge:
*934 This appeal raises the question whether the Department of Justice (DOJ) can require recipients of a formula grant under the Edward Byrne Memorial Justice Assistance Grant Program (Byrne JAG), 34 U.S.C. §§ 10151–10158, to comply with Department of Homeland Security (DHS) requests for notice of a detained alien’s release date and time and to allow DHS agents access to detained aliens upon request. We conclude that DOJ lacks statutory authority to impose these conditions on recipients of Byrne JAG formula grants.
I
Congress established Byrne JAG in 2006 as part of the Violence Against Women and Department of Justice Reauthorization Act of 2005, Pub. L. No. 109-162, § 1111, 119 Stat. 2960, 3094 (2006); see also 34 U.S.C. § 10151(b)(1). Byrne JAG authorized the Attorney General to make grants to state and local governments for “additional personnel, equipment, supplies, contractual support, training, technical assistance, and information systems for criminal justice, including for any one or more of” eight programs. 34 U.S.C. § 10152(a)(1). Under this umbrella, eight different types of “programs” can be funded, including, for example, “[l]aw enforcement programs,” “[p]rosecution and court programs,” and “[d]rug treatment and enforcement programs.” Id.1 Congress also established that the Attorney General *935 could make Byrne JAG awards for any purpose that would have been authorized under Byrne JAG’s two predecessor programs, the former Edward Byrne Memorial State and Local Law Enforcement Assistance Programs (LEAP) and the Local Government Law Enforcement Block Grants Program, both of which provided funding to state and local governments for
2

various law-enforcement-related purposes. Id. § 10152(a)(2); see also id. § 10151(b)(1).
Byrne JAG is administered by the Office of Justice Programs (OJP), a DOJ department headed by an Assistant Attorney General for OJP (referred to here as the “Assistant AG”) that administers a variety of grant programs. See id. §§ 10101, 10110(1).2 The Attorney General has “final authority over all functions” of OJP, including making grants. Id. § 10110(2). Under the Attorney General’s final authority, the Assistant AG has responsibility for several grant programs, including Byrne JAG. See id. § 10102(a). The Assistant AG must provide criminal-justice-related information to the public and government entities, coordinate efforts between various government organizations, and fulfill a number of other specified responsibilities. Id. § 10102(a)(1)–(5). Additionally, the Assistant AG must “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.” Id. § 10102(a)(6).
Byrne JAG is structured and administered as a formula grant program. In a formula grant program, Congress appropriates a set amount of funding and specifies “how the funds will be allocated among the eligible recipients, as well as the method by which an applicant must demonstrate its eligibility for that funding.” Office of Justice Programs, Grant Process Overview, http://go.usa.gov/xPmkA (last visited June 28, 2019). Byrne JAG’s statutory formula awards fifty percent of allocated funds to states based on their populations relative to the population of the United States, 34 U.S.C. § 10156(a)(1)(A), and the other fifty percent to states based on their relative rates of violent crime, id. § 10156(a)(1)(B). Once funding has been allocated to a particular state under the formula, forty percent of that funding is allocated to local governments within the state,3 while the state itself keeps sixty percent. Id. § 10156(b).
The statute authorizes the Attorney General to depart from this formula in certain circumstances. For example, the Attorney General can reserve up to five percent of Congress’s total allocation if deemed necessary to address a significant increase in crime or to remedy “significant programmatic harm resulting from operation of the formula.” Id. § 10157(b). The Attorney General can also retain up to $20 million for use by the National Institute of Justice to help local governments upgrade their technology, and can withhold a separate $20 million to

City of Los Angeles v. Barr, 941 F.3d 931 (2019) 19 Cal. Daily Op. Serv. 10,483, 2019 Daily Journal D.A.R. 10,164

support local governments’ antiterrorism training programs. Id. § 10157(a). Additionally, a number of *936 federal statutes enacted independently of Byrne JAG provide additional grounds for withholding funds from an applicant. For instance, the Attorney General has discretion to make up to a ten percent reduction of a state’s Byrne JAG award if it fails to comply with federal reporting requirements for deaths that occurred in state custody, id. § 60105(c)(2), and must reduce a state’s award by ten percent if it fails to “substantially implement” the Sex Offender Registration and Notification Act, id. § 20927(a).
State and local governments must submit an application for Byrne JAG funding to the Attorney General, who has discretion to dictate the application’s form. Id. § 10153(a). Some requirements for the application are set out by statute. The application must include specified certifications and assurances, including assurances that the applicant will maintain and report “data, records, and information (programmatic and financial) as the Attorney General may reasonably require,” id. § 10153(a)(4), and a certification “made in a form acceptable to the Attorney General” that the program to be funded meets Byrne JAG’s requirements, the application’s information is correct, “there has been appropriate coordination with affected agencies,” and the applicant will comply with all applicable federal law, id. § 10153(a)(5). Additionally, applicants must submit a “comprehensive Statewide plan” revealing how Byrne JAG funds “will be used to improve the administration of the criminal justice system.” Id. § 10153(a)(6).
The Attorney General develops and issues rules to carry out the grant program, id. § 10155, and is also responsible for receiving and reviewing applications, id. § 10154. Pursuant to these program development responsibilities, the Attorney General has developed a grant award document that includes a long list of requirements and conditions not spelled out in the Byrne JAG statute itself. The grant award document warns recipients that the funding is “subject to such conditions or limitations as are set forth on the attached page(s).” The conditions listed in the grant award document vary from year to year and typically cover a wide variety of subject matter. For example, grant award documents have required recipients to meet specified information sharing and information technology systems requirements, to comply with specified policies relating to human research subjects, and to participate in various training events, technical assistance events, and conferences. Other conditions have related more directly to the use of Byrne JAG funds. For
3

instance, the grant award document provides that recipients can purchase only certain types of body armor with Byrne JAG funds. The Attorney General must comply with general requirements for managing grants, see 2 C.F.R. § 2800.101, including “administrative requirements, cost principles and audit requirements,” id. § 200.100(a)(1).
II
OJP imposed two new conditions for Byrne JAG funding for fiscal year 2017, both of which were included in the grant award documents. The first new condition, referred to as the “notice condition,” required a recipient to honor DHS’s requests for advance notice of the scheduled release date and time of any detained alien held in the recipient’s correctional facilities.4 The *937 second new condition, referred to as the “access condition,” required a recipient to give federal agents access to correctional facilities to meet with detained aliens, or individuals believed to be aliens.5
The grant award document stated that these conditions were “an authorized and priority purpose of” the Byrne JAG award and applied “[w]ith respect to the ‘program or activity’ that is funded” by the award.6 The document defined “program or activity” by reference to Title VI, a federal civil rights law prohibiting discrimination on the basis of race, color, or national origin in any federally assisted program or activity. 42 U.S.C. § 2000d-4a. In this context, Congress defined “program or activity” to mean, in relevant part, “all of the operations of ... a department, agency, special purpose district, or other instrumentality of a State or of a local government,” or of “the entity of such State or local government that distributes such assistance and each such department or agency ... to which the assistance is extended.” Id. § 2000d-4a(1)(A)–(B). Finally, the 2017 Byrne JAG award document stated that “[f]ailure to comply with any one or more of these award requirements” can result in loss of funding.
The City of Los Angeles applied for a Byrne JAG award for the 2017 fiscal year. Its application included a letter from its deputy mayor stating that Los Angeles “is withholding any commitment to, or confirmation of, its compliance with” the notice and access conditions. On

City of Los Angeles v. Barr, 941 F.3d 931 (2019) 19 Cal. Daily Op. Serv. 10,483, 2019 Daily Journal D.A.R. 10,164

September 29, 2017, Los Angeles filed suit against DOJ, seeking an injunction against implementation of the notice and access conditions. In connection with this lawsuit, Los Angeles stated it had a policy against cooperating with federal immigration enforcement on the ground that “being perceived as a ‘cooperating’ jurisdiction in the view of the current Administration would harm public safety in Los Angeles” because it would have a negative impact on police relationships with immigrant communities.
Following a brief stay pending the Seventh Circuit’s affirmance and subsequent en banc vacatur of a nationwide injunction *938 against the notice and access conditions, see City of Chicago v. Sessions, 888 F.3d 272 (7th Cir. 2018), reh’g en banc granted in part, opinion vacated in part, No. 17-2991, 2018 WL 4268817 (7th Cir. June 4, 2018), vacated, No. 17-2991, 2018 WL 4268814 (7th Cir. Aug. 10, 2018), the district court entered a preliminary injunction against DOJ’s use of the notice and access conditions on September 13, 2018. DOJ appealed, arguing that the district court erred in determining that Los Angeles was likely to succeed on the merits of its claim that DOJ lacked statutory authority to impose the notice and access conditions.
III
We review the district court’s grant of a preliminary injunction for an abuse of discretion, and we review its determination of the underlying legal principles de novo. See DISH Network Corp. v. FCC, 653 F.3d 771, 776 (9th Cir. 2011).7 When an agency is charged with administering a congressional statute, “both [its] power to act and how [it is] to act [are] authoritatively prescribed by Congress.” City of Arlington v. FCC, 569 U.S. 290, 297, 133 S.Ct. 1863, 185 L.Ed.2d 941 (2013). An agency “literally has no power to act ... unless and until Congress confers power upon it.” La. Pub. Serv. Comm’n v. FCC, 476 U.S. 355, 374, 106 S.Ct. 1890, 90 L.Ed.2d 369 (1986).
DOJ advances two possible bases for its statutory authority to introduce the notice and access conditions.
4

A
DOJ first argues that the notice and access conditions are within the Assistant AG’s authority under a 2006 amendment to § 10102(a)(6) enacted by Congress in the Violence Against Women and Department of Justice Reauthorization Act of 2005, § 1152, 119 Stat. at 3113.8
From its enactment in 1984 and through 2005, § 10102(a)(6) provided that *939 the Assistant AG shall “exercise such other powers and functions as may be vested in the Assistant Attorney General pursuant to this title or by delegation of the Attorney General.” See Joint Resolution, Pub. L. No. 98-473, § 102, 98 Stat. 1837, 2078 (1984). In 2006, Congress amended § 10102(a)(6) to add the phrase “including placing special conditions on all grants, and determining priority purposes for formula grants” at the end of the section. See Violence Against Women and Department of Justice Reauthorization Act of 2005, § 1152, 119 Stat. at 3113. Accordingly, § 10102(a)(6) now provides that the Assistant AG must “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.” 34 U.S.C. § 10102(a)(6). DOJ argues that by amending the statute, Congress gave the Assistant AG the authority to impose notice and access conditions as “special conditions” on Byrne JAG awards and to announce the Attorney General’s determination that such conditions are “priority purposes” of the awards.
Before considering DOJ’s claim, we first address Los Angeles’s threshold argument that Congress’s amendment to § 10102(a)(6) does not give the DOJ any independent authority or power. Rather, Los Angeles claims, the statute merely describes the Assistant AG’s ability to exercise authority specified elsewhere in the relevant chapter (Chapter 101 of title 34). We disagree. Los Angeles has not identified (and we have not found) any language in the chapter giving the Attorney General or the Assistant AG authority to place “special conditions” or determine “priority purposes” for grants.9 But by amending § 10102(a)(6), Congress affirmatively indicated its understanding that the Assistant AG’s powers and functions could include “placing special conditions on all grants, and determining priority purposes for formula grants.” 34 U.S.C. § 10102(a)(6). Therefore, Los Angeles’s interpretation deprives the 2006 amendment to § 10102(a)(6) of any meaning; in effect, we would have to conclude that Congress amended § 10102(a)(6) for the

City of Los Angeles v. Barr, 941 F.3d 931 (2019) 19 Cal. Daily Op. Serv. 10,483, 2019 Daily Journal D.A.R. 10,164

purpose of expressly authorizing the Assistant AG to exercise certain powers that do not exist. We decline to do so, because we presume Congress makes amendments with purpose, see Stone v. INS, 514 U.S. 386, 397, 115 S.Ct. 1537, 131 L.Ed.2d 465 (1995), and it is generally “our duty to give effect, if possible, to every clause and word of a statute,” United States v. Menasche, 348 U.S. 528, 538–39, 75 S.Ct. 513, 99 L.Ed. 615 (1955) (internal quotation marks omitted). Accordingly, we reject Los Angeles’s construction of the statute. Consistent with Congress’s amendment, we read § 10102(a)(6) as confirming the authority of DOJ to place “special conditions on all grants” and determine “priority purposes for formula grants.”
On the other hand, we also disagree with DOJ’s argument that its notice and access conditions place “special conditions” *940 on Byrne JAG awards and announce the Attorney General’s determination that such conditions are “priority purposes” of the awards. To address this claim, we must first interpret the terms “special conditions” and “priority purposes” in § 10102(a)(6). “Canons of statutory construction help give meaning to a statute’s words. We begin with the language of the statute.” Wilderness Soc’y v. U.S. Fish & Wildlife Serv., 353 F.3d 1051, 1060 (9th Cir. 2003) (citing Gwaltney of Smithfield, Ltd. v. Chesapeake Bay Found., Inc., 484 U.S. 49, 56, 108 S.Ct. 376, 98 L.Ed.2d 306 (1987)). Where the statute does not define the relevant terms, we give them “their ordinary, contemporary, common meaning,” and “may consult dictionary definitions.” Transwestern Pipeline Co. v. 17.19 Acres of Prop. Located in Maricopa Cty., 627 F.3d 1268, 1270 (9th Cir. 2010) (internal quotation marks and citations omitted). In construing specific words in a statute, we must also look to the “language and design of the statute as a whole,” K Mart Corp. v. Cartier, Inc., 486 U.S. 281, 291, 108 S.Ct. 1811, 100 L.Ed.2d 313 (1988), and read the specific words “with a view to their place in the overall statutory scheme.” Wilderness Soc’y, 353 F.3d at 1060 (quoting FDA v. Brown & Williamson Tobacco Corp., 529 U.S. 120, 133, 120 S.Ct. 1291, 146 L.Ed.2d 121 (2000)); see also United States v. Lewis, 67 F.3d 225, 228–29 (9th Cir. 1995) (“Particular phrases must be construed in light of the overall purpose and structure of the whole statutory scheme.”). In every case, “it is the intent of Congress that is the ultimate touchstone.” Arizona v. United States, 567 U.S. 387, 453, 132 S.Ct. 2492, 183 L.Ed.2d 351 (2012) (Alito, J., concurring in part and dissenting in part) (internal quotation marks omitted).
The term “special conditions” is not defined in the statute.
5

Under the dictionary definition, the term “special” means “unusual” or “extraordinary,” Special, Black’s Law Dictionary (9th ed. 2009), or “assigned or provided to meet a particular need not covered under established procedures,” Special, Webster’s New Int’l Dictionary (3d ed. 2002). As this definition of “special” suggests, a “special condition” would be applied “to meet a particular need” for carrying out a program that is not covered by established requirements.10
This interpretation of “special conditions” is consistent with the regulatory backdrop against which Congress enacted both § 10102(a)(6)’s “including” clause and the Byrne JAG statutes. See Violence Against Women and Department of Justice Reauthorization Act of 2005, § 1152, 119 Stat. at 3113. At the time, a regulation setting out “administrative requirements for grants and cooperative agreements to State and local governments” provided a definition of the term “special conditions.” See 28 C.F.R. § 66.12 (2006). The regulation, titled “[s]pecial grant or subgrant conditions for ‘high-risk’ grantees,” provided that if a grantee was “high-risk,” then “special conditions and/or restrictions shall correspond to the high risk condition and shall be included in the award.” Id. § 66.12(a)(5). A grantee could be deemed high risk if it had a history of noncompliance with grant requirements, financial stability issues, or other factors that suggested a propensity toward violation of a grant’s terms. Id. § 66.12(a). According to the regulation, “[s]pecial conditions or restrictions *941 may include (1) [p]ayment on a reimbursement basis; (2) [w]ithholding authority to proceed to the next phase until receipt of evidence of acceptable performance within a given funding period; (3) [r]equiring additional, more detailed financial reports; (4) [a]dditional project monitoring; (5) [r]equiring the grantee or sub-grantee to obtain technical or management assistance; or (6) [e]stablishing additional prior approvals.” Id. § 66.12(b). Additionally, the regulation required the awarding agency to inform the grantee of the reasons for the special conditions and identify corrective actions the grantee could take to have the special conditions removed. Id. § 66.12(c).
This regulatory meaning of “special conditions” is presumed to have informed Congress’s use of the term in § 10102(a)(6). See FAA v. Cooper, 566 U.S. 284, 292, 132 S.Ct. 1441, 182 L.Ed.2d 497 (2012) (“[W]hen Congress employs a term of art, it presumably knows and adopts the cluster of ideas that were attached to each borrowed word in the body of learning from which it was taken.” (internal quotation marks omitted)). This conclusion is supported by Congress’s use of this term in

City of Los Angeles v. Barr, 941 F.3d 931 (2019) 19 Cal. Daily Op. Serv. 10,483, 2019 Daily Journal D.A.R. 10,164

a different provision, § 10109, in the subchapter of the statutes establishing OJP and Byrne JAG, enacted at the same time Congress established Byrne JAG and amended § 10102(a)(6). In § 10109, Congress provided that an Office of Audit, Assessment, and Management within the OJP would assess and review OJP’s grant programs to ensure compliance with program terms and requirements. See 34 U.S.C. § 10109(a), (b). When conducting such an audit, the auditing office must “take special conditions of the grant into account and consult with the office that issued those conditions to ensure appropriate compliance.” Id. § 10109(a)(2).11 This usage indicates that “special conditions” were understood to be individualized requirements included in a specific grant, as set forth in 28 C.F.R. § 66.12(a)(5) (2006). Otherwise, the auditor would not need to identify the office that issued the condition and engage in consultation on the compliance requirements.
Under the “normal rule of statutory construction,” we presume that “identical words used in different parts of the same act are intended to have the same meaning.” Dep’t of Revenue of Or. v. ACF Indus., 510 U.S. 332, 342, 114 S.Ct. 843, 127 L.Ed.2d 165 (1994) (internal quotation marks omitted). Accordingly, we may presume that Congress intended the use of “special conditions” in § 10102(a)(6) to have the same meaning as it has in § 10109(a)(2), namely to refer to individualized requirements. Therefore, the inclusion of “placing special conditions on all grants” in § 10102(a)(6) refers to the power to impose tailored requirements when necessary, such as when a grantee is “high-risk” pursuant to 28 C.F.R. § 66.12(a)(5) (2006).12
We next consider the term “priority purposes.” 34 U.S.C. § 10102(a)(6). The Byrne JAG statute establishes that *942 the “purpose” of an award is to “provide additional personnel, equipment, supplies, contractual support, training, technical assistance, and information systems for criminal justice,” within various programs proposed by applicants. Id. § 10152(a)(1). The purposes set forth in the predecessor grant statutes, LEAP and the Local Government Law Enforcement Block Grants Program, include funding “additional personnel, equipment, training, technical assistance, and information systems” for local government criminal justice programs, Anti-Drug Abuse Act of 1988, Pub. L. No. 100-690, § 501(b), 102 Stat. 4181, 4329, and funding for purposes including hiring additional officers, establishing drug courts, and setting up task forces consisting of local government and federal law enforcement officials “to prevent and control crime,” among others. H.R. 728,
6

104th Cong. § 101(a)(2) (1995); see also Omnibus Consolidated Rescissions and Appropriations Act of 1996, Pub. L. No. 104-134, tit. 1, 110 Stat. 1321, 1321–12 (incorporating H.R. 728 by reference). None of the purposes set forth in § 10152(a)(1) or the predecessor grant statutes corresponds to DOJ’s requirement that the recipient honor DHS’s requests for advance notice of detained aliens’ release dates or allow federal agents access to correctional facilities to meet with detained aliens.
In light of our interpretation of “special conditions” and “priority purposes,” it is clear that § 10102(a)(6) does not authorize DOJ to require all recipients of Byrne JAG funding to comply with the notice and access conditions.13 First, the notice and access conditions are not “special conditions” because they are not conditions triggered by specific characteristics not addressed by established conditions, as was the case for high-risk grantees under 28 C.F.R. § 66.12(a)(5) (2006). Second, priority purposes must be chosen from among the various possible purposes of a Byrne JAG award as set out in § 10152(a). The notice and access conditions are not included as purposes of the Byrne JAG award, nor are they purposes of either of its predecessor grant statutes. Because the notice and access conditions meet neither of these definitions, DOJ lacked statutory authority to impose them under § 10102(a)(6). Therefore, we reject DOJ’s argument that § 10102(a)(6) gives it the authority to impose the notice and access conditions.
Because we interpret the terms “special conditions” and “priority purposes” narrowly, we agree with our sister circuits that § 10102(a)(6) does not give the Assistant AG broad authority to impose any condition it chooses on a Byrne JAG award. City of Philadelphia v. Attorney Gen. of U.S., 916 F.3d 276, 288 (3d Cir. 2019) (concluding that Congress would not hide “such a broad power—the power to place any special conditions on all grants—in a statute outlining ministerial duties for an Assistant Attorney General”); City of Chicago, 888 F.3d at 286. Such a broad interpretation would be antithetical to the concept of a formula grant, see City of Chicago, 888 F.3d at 285 (noting that “the notion of the broad grant of authority to impose any conditions on grant recipients is at odds with the nature of the Byrne JAG grant, which is a formula grant rather than a discretionary grant”), and it would render superfluous Congress’s carefully prescribed conditions under which the Attorney General can normally withhold Byrne JAG funding, see, e.g., 34 U.S.C. § 10157(b) (allowing the Attorney General to withhold up to five percent of total allocated Byrne JAG

City of Los Angeles v. Barr, 941 F.3d 931 (2019) 19 Cal. Daily Op. Serv. 10,483, 2019 Daily Journal D.A.R. 10,164

funds to address rapid crime increases or “significant programmatic *943 harm” caused by the normal operation of the funding formula); id. § 30307(e)(2) (providing that a state will lose five percent of any grant award made under title 34, including Byrne JAG, if it fails to comply with the national standards set out under the Prison Rape Elimination Act).14
In opposition to our interpretation of § 10102(a)(6), the concurrence constructs a strawman argument. It ignores our actual interpretation of § 10102(a)(6), and instead accuses us of adopting a “sweeping characterization” of DOJ’s authority, Concurrence at 952, that allows the “essentially limitless” imposition of any conditions desired, Concurrence at 952–53 (quoting City of Chicago, 888 F.3d at 287). Based on this strawman argument, the concurrence then accuses us of creating a split with our sister circuits, which have rejected such a broad interpretation. Concurrence at 945–46, 947–48, 949–50, 951, 952.
While the concurrence has an easy time battering its strawman, the concurrence fails to explain how our actual ruling, that DOJ has the limited authority to impose special conditions designed to meet needs for carrying out the Byrne JAG program, could abrogate or “subvert” Byrne JAG’s funding scheme. Concurrence at 952. Nor does the concurrence explain how our actual ruling is contrary to our sister circuits, which did not need to consider the viability of a narrowing construction when considering challenges to DOJ’s notice and access conditions. Rather, given the issues raised by the appeals before them, our sister circuits merely rejected DOJ’s argument—and the concurrence’s strawman—that § 10102(a)(6) gives broad authority to impose any conditions DOJ may choose. The Seventh Circuit expressly acknowledged that “special conditions” may be a term of art that “cannot be read as an unbounded authority to impose ‘any’ conditions generally,” as we have concluded, but declined to address that potential interpretation of the term. City of Chicago, 888 F.3d at 285 n.2. Rather, it merely rejected DOJ’s argument “that the ‘including clause’ itself is a stand-alone grant of authority to the Assistant Attorney General to attach any conditions to any grants ...,” and it concluded that § 10102(a)(6) did not give “sweeping power to impose any conditions on any grants.” Id. at 285; see also Concurrence at 949. Similarly, the Third Circuit considered the argument that § 10102(a)(6) conferred “a broad power—the power to place any special conditions on all grants” on the Assistant AG, “a sweeping grant of authority.” City of Philadelphia, 916 F.3d at 288; see also
7

Concurrence at 949. In rejecting this broad interpretation, the court did not have occasion to consider whether the Attorney General possessed, and therefore could delegate through § 10102(a)(6), the more modest power to impose special conditions and designate priority purposes as we understand those terms. See id. at 287. Given our agreement with our sister circuits that § 10102(a)(6) does not confer broad authority on the Assistant AG sufficient to effectively abrogate the formula grant program Congress has established, the concurrence is wrong to suggest we are creating a circuit split. Concurrence at 945–46.15
*944 We conclude that the 2006 amendment to § 10102(a)(6) confirms that the Attorney General and the Assistant AG through delegation have the authority to impose special conditions on all grants and determine priority purposes for formula grants, as those terms are properly circumscribed. The notice and access conditions are not special conditions placed on grants to grantees that exhibit certain risk factors or have idiosyncratic issues that must be addressed individually. Nor are they among the statutorily recognized purposes of a Byrne JAG award as set out in § 10152(a). Therefore, DOJ lacked statutory authority to impose them under § 10102(a)(6).
B
We next consider DOJ’s argument that the propriety of the notice and access conditions are further supported by provisions in the Byrne JAG statute that authorize the Attorney General to obtain certain information and require coordination with agencies. See 34 U.S.C. § 10153(a)(4), (5).16 According to DOJ, the notice condition is authorized by § 10153(a)(4), which requires a recipient to report certain programmatic information, and the access condition is authorized by § 10153(a)(5)(C), which requires a recipient to coordinate with an “affected agenc[y].”
We disagree. First, § 10153(a)(4) requires the applicant to maintain and report information that is financial and “programmatic.” Although the term “programmatic” is not defined in the statute, the dictionary defines it to mean “of, resembling, or having a program.” Programmatic, Webster’s New Int’l Dictionary (3d ed. 2002). Section 10152 sets out types of “programs” that Byrne JAG may

City of Los Angeles v. Barr, 941 F.3d 931 (2019) 19 Cal. Daily Op. Serv. 10,483, 2019 Daily Journal D.A.R. 10,164

fund, including “[l]aw enforcement programs,” “[p]revention and education programs,” and “[d]rug treatment and enforcement programs.” 34 U.S.C. § 10152(a)(1). Given the use of the word “program” elsewhere in the same statutory scheme, the term “programmatic” in § 10153(a)(4) is best read to refer to a program or programs supported by Byrne JAG funding as outlined in § 10152(a)(1), such as a particular law enforcement program or drug treatment program. *945 17 Accordingly, § 10153(a)(4) merely requires an applicant to maintain and report information relating to the programs funded by a Byrne JAG award. Because DHS requests for notice of the release of a detained alien do not relate to a program funded by Byrne JAG, the notice condition does not require “programmatic” information under § 10153(a)(4).
Moreover, the statute speaks of the maintenance and reporting of data, records, and information “for each fiscal year covered by an application,” id. § 10153(a)(4), which contemplates yearly reporting. The notice condition’s requirement that a recipient have a policy in place requiring the provision of information to DHS on an ad hoc basis—due whenever DHS requests—is inconsistent with this statutory language.
Second, § 10153(a)(5)(C), which requires a grant recipient to certify that “there has been appropriate coordination with affected agencies,” does not give the Attorney General authority to impose the access condition. In context, this section requires the grant recipient to certify that it has coordinated with the agencies affected by the program to be funded by the Byrne JAG award. This statutory language does not support DOJ’s interpretation that a recipient must coordinate with DHS agents who are not part of a funded program. Nor does the statutory language (which requires an applicant to certify that “there has been appropriate coordination”) impose an ongoing obligation on the applicant to coordinate with DHS agents throughout the life of the grant, as required under the access condition. Id. § 10153(a)(5)(C) (emphasis added). Therefore, the access condition is not a proper exercise of the Attorney General’s authority under § 10153(a)(5)(C).
* * *
Because none of DOJ’s proffered bases for statutory authority gives the Attorney General or the Assistant AG the power to impose the notice and access conditions, the conditions are ultra vires. See City of Arlington, 569 U.S. at 297, 133 S.Ct. 1863. We affirm the district court.18
8

AFFIRMED.
WARDLAW, Circuit Judge, concurring in the judgment:
We are faced once again with “the Trump Administration’s efforts to press state and local police into federal immigration enforcement,” City of Los Angeles v. Barr, 929 F.3d 1163, 1183 (9th Cir. 2019) (Wardlaw, J., dissenting), this time via an ultra vires attempt to divert Edward Byrne Memorial Justice Assistance Grant Program (Byrne JAG) funds from their congressionally authorized purposes. I concur with the majority to the extent it holds that the challenged immigration conditions were not authorized by Congress, and are thus unlawful. But once the majority concluded that the challenged notice and access conditions are not lawful “special conditions” or “priority purposes” and were thus beyond the powers granted by Congress to the Department of Justice, it should have stopped, as in full stop. Everything *946 else the majority writes about 34 U.S.C. § 10102(a)(6) is “unnecessary to the decision in the case and [is] therefore not precedential.” Cetacean Cmty. v. Bush, 386 F.3d 1169, 1173 (9th Cir. 2004) (alteration in original) (quoting Best Life Assur. Co. v. Comm’r, 281 F.3d 828, 834 (9th Cir. 2002)). In other words, the rest of the asides cast by the majority are dicta. In dicta, the majority finds vague, unidentified powers bestowed upon the DOJ in an illustrative 2006 amendment to a “duties and functions” statute in a different subchapter of the Act that established the Byrne JAG program. See Violence Against Women and Department of Justice Reauthorization Act of 2005, Pub. L. No. 109-162, 119 Stat. 2960 (2006). This putative power grab not only unnecessarily portends a circuit split, its analysis also stands contrary to every other court to have addressed the issue in a reasoned opinion.
As both the Third and Seventh Circuits have held, Congress did not grant the Assistant Attorney General for the Office of Justice Programs any authority independent of that already vested by a different statute or by delegation to the Attorney General to impose special conditions and determine priority purposes in 34 U.S.C. § 10102(a)(6). See City of Philadelphia v. Attorney Gen., 916 F.3d 276, 287–88 (3d Cir. 2019); City of Chicago v. Sessions, 888 F.3d 272, 284–87 (7th Cir.), vacated in part on other grounds, No. 17-2991, 2018 WL 4268817 (7th Cir. June 4, 2018). The majority at best misperceives, and

City of Los Angeles v. Barr, 941 F.3d 931 (2019) 19 Cal. Daily Op. Serv. 10,483, 2019 Daily Journal D.A.R. 10,164

at worst, falsely characterizes, these holdings, describing them as rejecting only a “broad interpretation” of § 10102(a)(6) as authorizing the DOJ to impose “any condition it chooses on a Byrne JAG award.” Majority Op. at 942. But our sister circuits plainly rejected the notion that § 10102(a)(6) provides any independent grant of authority, broad or narrow—a conclusion that the majority suggests is incorrect.
As even the DOJ recognizes, “an agency literally has no power to act ... unless and until Congress confers power upon it.” La. Pub. Serv. Comm’n v. FCC, 476 U.S. 355, 374, 106 S.Ct. 1890, 90 L.Ed.2d 369 (1986). The DOJ “does not claim to possess inherent executive authority to impose the grant conditions, and instead recognizes that the authority must originate from Congress.” City of Chicago, 888 F.3d at 283. Both the Third and the Seventh Circuits rejected outright the argument that the DOJ makes here, that a residual clause of § 10102, which describes the duties and functions of the Assistant Attorney General for the Office of Justice Programs, is such a congressional delegation of power. That section provides in full:
(a) Specific, general and delegated powers
The Assistant Attorney General shall—
(1) publish and disseminate information on the conditions and progress of the criminal justice systems;
(2) maintain liaison with the executive and judicial branches of the Federal and State governments in matters relating to criminal justice;
(3) provide information to the President, the Congress, the judiciary, State and local governments, and the general public relating to criminal justice;
(4) maintain liaison with public and private educational and research institutions, State and local governments, and governments of other nations relating to criminal justice;
(5) coordinate and provide staff support to coordinate the activities of the Office and the Bureau of Justice Assistance, the National Institute of Justice, the Bureau of Justice Statistics, the Office for Victims of Crime, and the Office of *947 Juvenile Justice and Delinquency Prevention; and
(6) exercise such other powers and functions as may be vested in the Assistant Attorney General pursuant to
9

this chapter or by delegation of the Attorney General, including placing special conditions on all grants, and determining priority purposes for formula grants.
34 U.S.C. § 10102(a) (emphasis added).1 The DOJ contends that the bolded language independently authorizes the Assistant Attorney General to impose any special conditions he sees fit, as to any grant administered by the Office of Justice Programs, so long as the condition is “germane” to the grant program or to “law enforcement” more generally.2 Practically speaking, the DOJ argues that the Assistant Attorney General for the Office of Justice Programs can impose almost any “special condition” on any grant the Office of Justice Programs administers, up to withholding all grant funds due to a grantee’s failure to comply with the DOJ’s desired policy.
The DOJ’s interpretation of § 10102(a)(6) conflicts with the plain language of the statute. See Gonzales v. Oregon, 546 U.S. 243, 258, 126 S.Ct. 904, 163 L.Ed.2d 748 (2006) (stating that “[t]he starting point” for the inquiry as to whether Congress delegated any authority “is, of course, the language of the [alleged] delegation provision itself”). Specifically, it “runs headlong into an obstacle: the word ‘including.’ ” City of Philadelphia, 916 F.3d at 287. We have interpreted “including” as “ordinarily defined as a term of illustration, signifying that what follows is an example of the preceding principle.” Ariz. State Bd. for Charter Schs. v. U.S. Dep’t of Educ., 464 F.3d 1003, 1007 (9th Cir. 2006); see Fed. Land Bank of St. Paul v. Bismarck Lumber Co., 314 U.S. 95, 100, 62 S.Ct. 1, 86 L.Ed. 65 (1941) (“[T]he term ‘including’ is not one of all-embracing definition, but connotes simply an illustrative application of the general principle.”).3 Analyzing Congress’s use of the word “including” in § 10102(a)(6), the Third and Seventh Circuits came to the same conclusion. See City of Philadelphia, 916 F.3d at 287 (reasoning that “including” “is used to denote something that is within a larger whole”); City of Chicago, 888 F.3d at 284 (“The word ‘including’ by definition is used to designate that a person or thing is part of a particular group.”).
The Seventh Circuit reasoned that the plain meaning of “including” in § 10102(a)(6)
is to set forth a subcategory of the types of powers and functions that

City of Los Angeles v. Barr, 941 F.3d 931 (2019) 19 Cal. Daily Op. Serv. 10,483, 2019 Daily Journal D.A.R. 10,164

the Assistant Attorney General may exercise when vested in the Assistant Attorney General either by the terms of this chapter or by delegation of the Attorney General. ... [Because the DOJ] does not even claim that the power exercised here [to impose the notice and access conditions] is authorized anywhere in the chapter, nor that the Attorney General *948 possesses that authority and therefore can delegate it to the Assistant Attorney General ... the [DOJ’s] argument is that the “including” clause itself is a stand-alone grant of authority to the Assistant Attorney General to attach any conditions to any grants in that subchapter or other subchapters even though that authority is not otherwise provided in the chapter and is not possessed by the Attorney General. Because that interpretation is so obviously belied by the plain meaning of the word “including,” the Attorney General’s position is untenable.
City of Chicago, 888 F.3d at 285. The Third Circuit agreed that
“including” signifies that the Special Conditions Clause is part of “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.” 34 U.S.C. § 10102(a)(6) (emphasis added). Therefore, under the plain text of this provision, the [Assistant Attorney General] has the power to place special conditions on grants only to the extent that such power has been vested in him or her “pursuant to this chapter or by delegation of the Attorney General.” ... [T]he broad authority [the DOJ] urges has not been vested in the Attorney General or the [Assistant Attorney General] in the Byrne JAG statute or anywhere else in the United States Code. Therefore, the Special Conditions Clause cannot authorize this power on its own.
City of Philadelphia, 916 F.3d at 287–88. Here, nothing in the statute evinces a congressional intent to use the word “including” to mean anything other than its ordinary
10

definition.4 All other courts to consider § 10102(a)(6) have similarly rejected the DOJ’s argument that the statute independently authorizes the Assistant Attorney General to impose conditions of any kind on grants.5
*949 The DOJ’s interpretation of § 10102(a)(6) is at odds with the very structure and purpose of § 10102. See Gonzales, 546 U.S. at 273, 126 S.Ct. 904 (“[S]tatutes should not be read as a series of unrelated and isolated provisions.” (internal quotation marks omitted)). Section 10102 delineates the “duties and functions” of the Assistant Attorney General for the Office of Justice Programs, much like other “duties and functions” statutes concerning persons who manage agency programs. See, e.g., 34 U.S.C. § 10444 (duties and functions of Director of Violence Against Women Office), § 11293 (duties and functions of the Administrator of the Office of Juvenile Justice and Delinquency Prevention). The first five provisions of § 10102(a) describe the Assistant Attorney General’s various administrative duties, from “coordinat[ing] and provid[ing] staff support to coordinate the activities” of other DOJ offices to “maintain[ing] liaison with public and private educational and research institutions, State and local governments, and governments of other nations relating to criminal justice.” Id. § 10102(a)(1)–(5). The sixth provision, § 10102(a)(6), is a catch-all provision, simply recognizing that the Assistant Attorney General can also exercise such other powers and functions as may be delegated by other authorities—either by Congress in Chapter 101 or by the Attorney General. “The ‘including’ phrase is tacked on to that.” City of Chicago, 888 F.3d at 285.
As all other courts have found, it is inconceivable that Congress implicitly intended to delegate any independent powers in this residual clause. “A clause in a catch-all provision at the end of a list of explicit powers would be an odd place indeed to put a sweeping power to impose any conditions on any grants—a power much more significant than all of the duties and powers that precede it in the listing ....” Id. (emphasis in original); see City of Philadelphia, 916 F.3d at 288 (“Given the ministerial nature of the powers in the preceding five subsections, we would be hesitant to find such a sweeping grant of authority in the sixth subsection absent clear language to support that interpretation.”). Congress does not hide such broad powers in such ancillary provisions. See Whitman v. Am. Trucking Ass’ns, 531 U.S. 457, 468, 121 S.Ct. 903, 149 L.Ed.2d 1 (2001) (“Congress ... does not alter the fundamental details of a regulatory scheme in vague terms or ancillary provisions—it does not, one might say, hide elephants in mouseholes.”).

City of Los Angeles v. Barr, 941 F.3d 931 (2019) 19 Cal. Daily Op. Serv. 10,483, 2019 Daily Journal D.A.R. 10,164

The DOJ’s interpretation of § 10102(a)(6) also interferes with the Byrne JAG program’s formula grant structure. Congress created specific, objective eligibility criteria and a formula to allocate Byrne JAG funds among all jurisdictions that meet that criteria. See 34 U.S.C. § 10156. Congress further crafted narrow grounds on which the Attorney General is authorized to withhold grant funds to jurisdictions not supporting specific federal priorities, id. §§ 10157(b), 12113(e), 20927(a), 30307(e)(2), 40914(b), 60105(c)(2), while ensuring that jurisdictions would receive a minimum grant allocation, id. § 10156(a)(2). Against the backdrop of Congress’s precise formula and express limits on the Attorney General’s ability to deviate from that formula, “it is inconceivable that Congress would have anticipated that the Assistant Attorney General could abrogate the entire distribution scheme and deny all funds to states and localities that would qualify under the Byrne JAG *950 statutory provisions, based on the Assistant Attorney General’s decision to impose his or her own conditions—the putative authority for which is provided in a different statute.” City of Chicago, 888 F.3d at 286.6
“Congress knew how to grant such authority, and explicitly did so in another statute within the same Act that added the ‘including’ language” to § 10102(a)(6). Id. at 286–87 (citing the Violence Against Women and Department of Justice Reauthorization Act of 2005, Pub. L. No. 109-162, 119 Stat. 2960 (2006)); see United States v. Youssef, 547 F.3d 1090, 1094–95 (9th Cir. 2008) (noting that Congress’s omission of a term from one section and inclusion of that term in another “is evidence of Congress’s expressed intent not to impose” that requirement on the first section). Congress gave the Attorney General the authority to “impose reasonable conditions on” Violence Against Women Act grants “to ensure that the States meet statutory, regulatory, and other program requirements.” 34 U.S.C § 10446(e)(3). Additionally, Congress provided that the Assistant Attorney General shall establish discretionary grant programs under the Bureau of Justice Assistance, “on terms and conditions determined by the [Assistant Attorney General] to be consistent with part B of subchapter V.” 34 U.S.C § 10142(2).7 In contrast to these explicit grants of authority to impose conditions on specific grants,
the Byrne JAG statute provides the Attorney General authority over a

carefully delineated list of actions, with no such broad authority to impose reasonable conditions. If Congress had wanted to vest such authority in the Attorney General regarding the Byrne JAG grant, one would expect it to include explicit language in the grant statute itself, as it did in the Violence Against Women Act. The Attorney General’s argument that such sweeping authority over the major source of funding for law enforcement agencies nationwide was provided to the Assistant Attorney General by merely adding a clause to a sentence in a list of otherwise-ministerial powers defies reason.
City of Chicago, 888 F.3d at 287.
Yet, in dicta, unnecessary to its holding, the majority seems to adopt the DOJ’s “independent power” construction of § 10102(a)(6), writing in passing that “the Attorney General and the Assistant [Attorney General for the Office of Justice Programs] through delegation have the authority to impose special conditions on all grants and determine priority purposes for formula grants, as those terms are properly circumscribed.” Majority Op. at 944; see id. at 939–40, 941–42, 943–44 n.14, 944–45 (referring to the Assistant AG’s “power” to impose special conditions under *951 § 10102(a)(6)).8 See In re Magnacom Wireless, LLC, 503 F.3d 984, 993–94 (9th Cir. 2007) (“[S]tatements made in passing, without analysis, are not binding precedent.”); see also United States v. Johnson, 256 F.3d 895, 914 (9th Cir. 2001) (en banc) (opinion of Kozinski, J.) (“[W]here a panel confronts an issue germane to the eventual resolution of the case, and resolves it after reasoned consideration in a published opinion, that ruling becomes the law of the circuit ....”). While the majority characterizes its discussion as a response to a “threshold argument,” it is nothing of the sort. Majority Op. at 947–48. All that is necessary to decide this case is the conclusion, upon which we all agree, that § 10102(a)(6) does not permit the Assistant AG to impose the notice and access conditions at issue here.
In its digression from the issue at hand, the majority

11

City of Los Angeles v. Barr, 941 F.3d 931 (2019) 19 Cal. Daily Op. Serv. 10,483, 2019 Daily Journal D.A.R. 10,164

places great weight on its contention that the “including” clause must have been intended as a grant of authority, or else the 2006 amendment adding the clause would have no meaning. Majority Op. at 947–48. The majority identifies no other support for its suggestion of a grant of independent powers. The majority’s concern that a contrary reading of this residual clause would deprive it of meaning rings hollow, given that the majority’s interpretative dictum would render superfluous numerous statutes in which Congress expressly authorized the Attorney General to withhold a set percentage of Byrne JAG funds for a specified purpose. See 34 U.S.C. §§ 10157(b), 12113(e), 20927(a), 30307(e)(2), 40914(b), 60105(c)(2). As the Third Circuit noted, “[i]f Congress had already given the [Assistant] Attorney General this sweeping authority to withhold all funds for any reason [by imposing special conditions], it would have no need to delineate numerous, specific circumstances under which the Attorney General may withhold limited amounts of funds.” City of Philadelphia, 916 F.3d at 286. We generally do not interpret such ancillary ministerial provisions to render superfluous Congress’s more specific delegations of power. See Gonzales, 546 U.S. at 262, 126 S.Ct. 904 (“It would be anomalous for Congress to have so painstakingly described the Attorney General’s limited authority to deregister a single physician or schedule a single drug, but to have given him, just by implication, authority to declare an entire class of activity outside ‘the course of professional practice,’ and therefore a criminal violation of the CSA.”). The notion that through this “including” clause Congress granted independent authority to withhold all funds as to a specific grantee is absurd given that elsewhere Congress explicitly gave the Attorney General authority to withhold funds only in limited circumstances. See City of Chicago, 888 F.3d at 285 (recognizing that such “a power granted to the Assistant Attorney General ... was not granted to the Attorney General”); United States v. Wilson, 503 U.S. 329, 334, 112 S.Ct. 1351, 117 L.Ed.2d 593 (1992) (noting that statutory interpretation that leads to absurd results is to be avoided).
In contrast, interpreting the “including” clause to illustrate powers already vested in the Assistant Attorney General or the Attorney General is consistent with Congress’s precise grants of power over the Byrne JAG program to the Attorney General. And, as the City identified, various statutes in Chapter 101 of Title 34 authorize *952 the Attorney General or the Assistant Attorney General to impose terms and conditions on other grants. See, e.g., 34 U.S.C. §§ 10142(2), 10446(e)(3). The authority to impose conditions clearly includes the authority to impose special
12

conditions.9 Thus, § 10102(a)(6) makes clear that the Attorney General can delegate such authority to the Assistant Attorney General, and that exercising such authority is part of the Assistant Attorney General’s “duties and functions.” This interpretation satisfies “our duty ‘to give effect, if possible, to every clause and word of a statute,’ rather than to emasculate an entire section.” United States v. Menasche, 348 U.S. 528, 538–39, 75 S.Ct. 513, 99 L.Ed. 615 (1955) (citation omitted). That the “including” clause may simply “remove doubt” that the Assistant Attorney General can, under some circumstances, impose special conditions and determine priority purposes does not render the clause meaningless. See Marx v. Gen. Revenue Corp., 568 U.S. 371, 385, 133 S.Ct. 1166, 185 L.Ed.2d 242 (2013) (concluding that “the phrase ‘and costs’ would not be superfluous if Congress included it to remove doubt that defendants may recover costs” under the circumstances set forth in the statute). Even if this interpretation makes Congress’s addition of the “including” clause to § 10102(a)(6) somewhat redundant, the addition of incidental language with little meaning does not demonstrate intent to grant the Assistant Attorney General sweeping authority to impose special conditions on all Office of Justice Program-administered grants. See Conn. Nat’l Bank v. Germain, 503 U.S. 249, 253, 112 S.Ct. 1146, 117 L.Ed.2d 391 (1992) (“Redundancies across statutes are not unusual events in drafting ....”). The majority fails to confront the ancillary nature of the “including” clause.
The majority’s drift is pernicious because the distinction it seemingly draws is between special conditions imposed on individual Byrne JAG grantees, which it suggests are lawful, as opposed to conditions imposed on all grantees, which are not. See, e.g., Majority Op. at 942 (“[Section] 10102(a)(6) does not authorize DOJ to require all recipients of Byrne JAG funding to comply with the notice and access conditions.”). This sweeping characterization is far from a “narrowing construction.” Majority Op. at 943. It would subvert Congress’s carefully crafted statutory scheme for federal law enforcement grants.
The majority protests that it is only recognizing the DOJ’s “limited authority to impose special conditions designed to meet the needs for carrying out the Byrne JAG program.” Majority Op. at 943. But what are the limits of that authority? Beyond stating nebulously that “special conditions” refer to “individualized requirements” created in response to “certain risk factors” or “idiosyncratic issues,” the majority provides no further guidance.10 Majority Op. at 941–42, 944. It therefore opens the door

City of Los Angeles v. Barr, 941 F.3d 931 (2019) 19 Cal. Daily Op. Serv. 10,483, 2019 Daily Journal D.A.R. 10,164

for the Assistant Attorney General to lay down any

them”). The majority’s dicta, if it were to become law,

number of conditions not contemplated or authorized by

would allow any Assistant Attorney General for the

Congress, as long as they are imposed on an individual

Office of Justice Programs to set special conditions or

basis and can somehow be said to be “designed *953 to

funding priorities on specific grantees, thus thwarting

meet the needs for carrying out the Byrne JAG program.”

Congress’s mandate and furthering its own desired policy

This essentially limitless authority “is a tremendous

goals. This supposed power could be wielded over all

power of widespread impact,” and, again, “is not the type

congressionally enacted grants administered by the Office

of authority that would be hidden in a clause without ...

of Justice Programs, worth upwards of $1.2 billion in

explanation, [or] without any reference or

fiscal year 2018.12

acknowledgment of that authority in the statute that

actually contains the grant itself.” City of Chicago, 888

The enormous impact of such potential authority left our

F.3d at 287.

sister circuits firmly convinced that the plain language of

§ 10102(a)(6) could not support the DOJ’s claimed

The Byrne JAG program is the primary provider of

authority. I would join them, and respectfully disagree

federal criminal justice funding to state and local

with the portions of the majority opinion that seemingly

governments.11 Congress’s articulated goal for Byrne JAG

find more capacious powers bestowed by the “including”

grants was to provide States and localities with flexibility

clause within § 10102(a)(6)’s residual clause.

to address their local criminal justice needs, specifically

through funds for “additional personnel, equipment, supplies, contractual support, training, technical

All Citations

assistance, and information systems for criminal justice.” 34 U.S.C. § 10152(a)(1); see also H.R. Rep. No. 109-233, at 89 (2005) (stating that the new Byrne JAG program

941 F.3d 931, 19 Cal. Daily Op. Serv. 10,483, 2019 Daily Journal D.A.R. 10,164

was meant to “give State and local governments more

flexibility to spend money for programs that work for

Footnotes

1

The eight different types of “programs” include (1) “[l]aw enforcement programs,” (2) “[p]rosecution and court

programs,” (3) “[p]revention and education programs,” (4) “[c]orrections and community corrections programs,” (5)

“[d]rug treatment and enforcement programs,” (6) “[p]lanning, evaluation, and technology improvement

programs,” (7) “[c]rime victim and witness programs,” and (8) “[m]ental health programs and related law

enforcement and corrections programs.” 34 U.S.C. § 10152(a)(1).

2

The actual administration of Byrne JAG is carried out by the Bureau of Justice Assistance (BJA), a component

organization of OJP. By statute, a BJA director reports directly to the Assistant AG, see 34 U.S.C. § 10141(b), but the

majority of the BJA director’s authority has been transferred directly to the Assistant AG, see Consolidated

Appropriations Act, 2000, Pub. L. No. 106-113, app. A, tit. I, 113 Stat. 1501, 1501A–20 (1999).

3

Like state applicants, local government applicants receive funding based on their relative rates of violent crime. 34

U.S.C. § 10156(d)(2)(A).

4

The notice condition provides:

With respect to the “program or activity” that is funded (in whole or in part) by this award, as of the date the

recipient accepts this award, and throughout the remainder of the period of performance for the award – ... A

local ordinance, -rule, -regulation, -policy, or -practice (or an applicable State statute, -rule, -regulation, -policy, or

-practice) must be in place that is designed to ensure that, when a local-government (or

local-government-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

13

City of Los Angeles v. Barr, 941 F.3d 931 (2019) 19 Cal. Daily Op. Serv. 10,483, 2019 Daily Journal D.A.R. 10,164

requested notice to DHS.

5

The access condition provides:

With respect to the “program or activity” that is funded (in whole or in part) by this award, as of the date the

recipient accepts this award, and throughout the remainder of the period of performance for the award – A local

ordinance, -rule, -regulation, -policy, or -(or an applicable State statute, -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 a local-government (or local-government-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.

6

The grant award document states:

Compliance with these requirements is an authorized and priority purpose of this award. To the extent that such

costs are not reimbursed under any other federal program, award funds may be obligated (including for

authorized reimbursements) for the reasonable, necessary, and allocable costs (if any) of – (1) developing and

putting into place statutes, ordinances, rules, regulations, policies, and practices to satisfy this condition, (2)

permitting access as described in [the access condition], and (3) honoring any request from DHS that is

encompassed [in the notice condition].

7

Although DOJ has stated that it will not enforce the notice and access conditions while this litigation is pending, see

Office of Justice Programs, FY 2017 and FY 2018 JAG Award Special Notices,

https://ojp.gov/funding/Explore/LegalNotices-AwardReqts.htm (last visited June 26, 2019), such temporary restraint

does not amount to a voluntary cessation of DOJ’s enforcement of the challenged conditions. See Fikre v. FBI, 904

F.3d 1033, 1037 (9th Cir. 2018). Therefore, this case is not moot.

8

Section 10102 is contained in subchapter I of chapter 101. This subchapter creates OJP, which oversees the

management of all grant programs, both formula and discretionary, including Byrne JAG. (Byrne JAG is contained in

subchapter V of the same chapter.) Section 10102(a) provides:

The Assistant Attorney General shall –

(1) publish and disseminate information on the conditions and progress of the criminal justice systems;

(2) maintain liaison with the executive and judicial branches of the Federal and State governments in matters

relating to criminal justice;

(3) provide information to the President, the Congress, the judiciary, State and local governments, and the

general public relating to criminal justice;

(4) maintain liaison with public and private educational and research institutions, State and local governments,

and governments of other nations relating to criminal justice;

(5) coordinate and provide staff support to coordinate the activities of the Office and the Bureau of Justice

Assistance, the National Institute of Justice, the Bureau of Justice Statistics, the Office for Victims of Crime, and

the Office of Juvenile Justice and Delinquency Prevention; and

(6) 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.

34 U.S.C. § 10102(a).

9

Neither of the sections cited by Los Angeles gives the Assistant AG authority to place “special conditions” on or

determine “priority purposes” for any grants. Section 10142(2) provides that the BJA may allocate grants “on terms

and conditions determined by the [BJA] Director to be consistent with part B of subchapter V [Discretionary

Grants]”, 34 U.S.C. § 10142(2), and § 10446(e)(3) provides that “[i]n disbursing grants under this subchapter [Grants

to Combat Violent Crimes Against Women], the Attorney General may impose reasonable conditions on grant

14

City of Los Angeles v. Barr, 941 F.3d 931 (2019) 19 Cal. Daily Op. Serv. 10,483, 2019 Daily Journal D.A.R. 10,164
awards to ensure that the States meet statutory, regulatory, and other program requirements,” id. § 10446(e)(3).
10 The distinction between “special conditions” and established conditions arises in other contexts, as well. For example, the Federal Aviation Administration is empowered to issue a special condition—“a regulation that applies to a particular aircraft design”—when a design’s novel features take it outside the scope of otherwise appropriate safety regulations. 14 C.F.R. § 11.19.
11 Section 10109(a)(2) provides, in full: The purpose of the Office shall be to carry out and coordinate program assessments of, take actions to ensure compliance with the terms of, and manage information with respect to, grants under programs covered by subsection (b). The Director shall take special conditions of the grant into account and consult with the office that issued those conditions to ensure appropriate compliance.
34 U.S.C. § 10109(a)(2).
12 Congress contemplated that the Assistant AG could place such conditions on both formula and discretionary grants (“all grants”), but may determine priority purposes only “for formula grants.” 34 U.S.C. § 10102(a)(6).
13 Therefore, contrary to the concurrence’s characterization of our holding, we do not adopt DOJ’s interpretation of § 10102(a)(6). Concurrence at 950–51.
14 Moreover, it is unlikely that Congress would recognize such a broad power in § 10102(a)(6), given the ministerial duties described in the rest of the section. See City of Philadelphia, 916 F.3d at 288; City of Chicago, 888 F.3d at 285. By contrast, our more circumscribed understanding of the power to impose special conditions and determine priority purposes is in accord with the other administrative duties outlined in § 10102.
15 The concurrence’s disagreement with our interpretation of § 10102(a)(6) does not make it dicta. Concurrence at 945–46, 950–51, 952–53. “[W]here a panel confronts an issue germane to the eventual resolution of the case, and resolves it after reasoned consideration in a published opinion, that ruling becomes law of the circuit, regardless of whether doing so is necessary in some strict logical sense.” Cetacean Cmty. v. Bush, 386 F.3d 1169, 1173 (9th Cir. 2004) (quoting United States v. Johnson, 256 F.3d 895, 914 (9th Cir. 2001) (en banc) (opinion of Kozinski, J.)). Only “statements made in passing, without analysis, are not binding precedent.” In re Magnacom Wireless, LLC, 503 F.3d 984, 993–94 (9th Cir. 2007). In order to resolve the issue on appeal here, we must construe § 10102(a)(6) to determine whether it gave DOJ any authority at all, and if so, whether it gave DOJ authority to impose the notice and access conditions. Our construction of the statutory language, which leads us to conclude that § 10102(a)(6) gives DOJ some circumscribed authority, but not the authority to impose the notice and access conditions, is not dicta under any definition of the term.
16 Section 10153(a) provides that an application for Byrne JAG funding must include: (4) An assurance that, for each fiscal year covered by an application, the applicant shall maintain and report such data, records, and information (programmatic and financial) as the Attorney General may reasonably require. (5) A certification, made in a form acceptable to the Attorney General and executed by the chief executive officer of the applicant ... that – ... (C) there has been appropriate coordination with affected agencies.
34 U.S.C. § 10153(a)(4), (5).
17 To the extent DOJ argues that “programmatic” should be read as referring to the definition of “program” set out in 42 U.S.C. § 2000d-4a(1)(A), we disagree. The definition of “program” from federal civil rights law that was incorporated by reference in the 2017 Byrne JAG award letter is not a reasonable interpretation of the word
15

City of Los Angeles v. Barr, 941 F.3d 931 (2019) 19 Cal. Daily Op. Serv. 10,483, 2019 Daily Journal D.A.R. 10,164

“program” or “programmatic” as used in the statutes authorizing Byrne JAG awards.

18 Because we affirm the district court on the ground that DOJ lacked statutory authority to impose the notice and access conditions, we need not address Los Angeles’s alternative arguments raised on appeal.

1

This statute appears in Subchapter I, Chapter 101 of Title 34 of the United States Code. The Byrne JAG statute is in

Subchapter V, Chapter 101 of Title 34. See 34 U.S.C. §§ 10151–10158.

2

See Recording of Oral Argument, City of Los Angeles v. Barr, No. 18-56292 (9th Cir. Apr. 10, 2019), at 6:25–7:22,

http://www.ca9.uscourts.gov/media/view_video.php?pk_vid=0000015483.

3

Dictionary definitions confirm this understanding of the word “including.” See Include, Webster’s New Int’l

Dictionary (3d ed. 2002) (“to place, list, or rate as a part of component of a whole or of a larger group, class, or

aggregate”); Including, New Oxford Am. Dictionary (3d ed. 2010) (“containing as part of the whole being

considered”).

4

By contrast, in United States v. Flores, 901 F.3d 1150 (9th Cir. 2018), we considered a statute listing a number of

aggravated felonies, 8 U.S.C. § 1101(a)(43), conviction of which rendered aliens deportable. 8 U.S.C. §

1101(a)(43)(G) listed “a theft offense (including receipt of stolen property).” Congress’s express inclusion of an

independent crime requiring separate elements of proof led us to conclude that it was at the least ambiguous as to

whether Congress intended “including” to mean “a subset” or intended to add an independent theft-related crime

to the expanded list of deportable felonies. Flores, 901 F.3d at 1157–58. And, as the Board of Immigration Appeals,

to which we deferred under Chevron, noted, § 1101(a)(43)(G) “is not the only entry within 1101(a)(43)’s list of

aggravated felonies [in which Congress used] the word ‘including’ ‘to cover a broader range of offenses than those

previously referenced.’ ” Flores, 901 F.3d at 1158 (quoting Matter of Alday-Dominguez, 27 I. & N. Dec. 48, 51 n.7

(B.I.A. 2017)).

5

See Oregon v. Trump, ––– F. Supp. 3d ––––, 2019 WL 3716932, at *11, *13–15 (D. Or. Aug. 7, 2019), appeal docketed

No. 19-35843 (9th Cir. Oct. 4, 2019); City of Providence v. Barr, 385 F. Supp. 3d 160, 163–64 (D.R.I. June 10, 2019),

appeal docketed sub nom. City of Providence v. U.S. Dep’t of Justice, No. 19-1802 (1st Cir. Aug. 19, 2019); City &

County of San Francisco v. Sessions, 349 F. Supp. 3d 924, 947 (N.D. Cal. 2018) (“DOJ’s interpretation that Section

10102 establishes an independent grant of authority to impose the challenged conditions contradicts the plain

meaning of the statute.”), appeal docketed sub nom. City & County of San Francisco v. Whitaker, No. 18-17308 (9th

Cir. Dec. 4, 2018); States of New York v. Dep’t of Justice, 343 F. Supp. 3d 213, 228 (S.D.N.Y. 2018) (holding that §

10102(a)(6) is not a “stand-alone grant of authority to the Assistant Attorney General to attach any conditions to

any grants” (quoting City of Chicago, 888 F.3d at 285)), appeal docketed sub nom. City of New York v. Whitaker, No.

19-275 (2d Cir. Jan. 28, 2019); City of Chicago v. Sessions, 321 F. Supp. 3d 855, 874 (N.D. Ill. 2018); City of Chicago v.

Sessions, 264 F. Supp. 3d 933, 941–43 (N.D. Ill. 2017) (subsequent history omitted); City of Philadelphia v. Sessions,

309 F. Supp. 3d 289, 321 (E.D. Pa. 2018), aff’d in part, vacated in part sub nom. City of Philadelphia v. Attorney Gen.,

916 F.3d 276 (3d Cir. 2019); City of Philadelphia v. Sessions, 280 F. Supp. 3d 579, 616–17 (E.D. Pa. 2017) (subsequent

history omitted).

6

Indeed, the DOJ’s interpretation of § 10102(a)(6) gives no weight to Congress’s choice to make Byrne JAG a formula

grant program. “If Congress sought to provide [the DOJ] the ability to exercise its judgment in the selection of the

grantees, it would have made sense for it to do so by employing the discretionary grant model rather than the

formula grant structure used here.” City of Chicago, 888 F.3d at 286. Were § 10102(a)(6) to authorize the DOJ “to

withhold all funds because a jurisdiction does not certify compliance with [a policy] of the Attorney General’s

choosing,” it would effectively “turn[ ] the formula grant into a discretionary one.” City of Philadelphia, 916 F.3d at

290.

16

City of Los Angeles v. Barr, 941 F.3d 931 (2019) 19 Cal. Daily Op. Serv. 10,483, 2019 Daily Journal D.A.R. 10,164

7

Congress transferred the functions of the Director of Bureau of Justice Assistance to the Assistant Attorney General

for the Office of Justice Programs, with exceptions not relevant here. See Consolidated Appropriations Act, 2000,

Pub. L. No. 106-113, 113 Stat. 1501 (1999) (note regarding 42 U.S.C. § 3741, which was transferred to 34 U.S.C. §

10141).

8

The majority never identifies any language in § 10102(a)(6), or any other statute, to support its untethered

statement that § 10102(a)(6) grants the Attorney General any authority. Majority Op. at 944. While the DOJ argues

that § 10102(a)(6) grants the Assistant Attorney General authority, it never suggests that this authority extends to

the Attorney General.

9

Because other statutes in Chapter 101 provide the DOJ with authority to impose special conditions, the majority is

simply wrong to contend that the City of Los Angeles’s reading of the “including” clause would “authoriz[e] the

Assistant AG to exercise certain powers that do not exist.” Majority Op. at 939–40.

10 While the majority suggests that Congress’s use of the term “special conditions” was informed by a since-repealed regulation, 28 C.F.R. § 66.12(a)(5) (2006), Majority Op. at 940–42, it conspicuously does not limit the Assistant Attorney General to imposing only the types of conditions provided for by that regulation.

11 See Edward Byrne Memorial Justice Assistance Grant Program FY 2017 Local Solicitation, U.S. Dep’t of Justice (Aug. 3, 2017).

12 See FY 2020 Performance Budget, Office of Justice Programs (U.S. Dep’t of Justice), March 2019, at 40, 44, https://www.justice.gov/file/1144566/download (last visited July 29, 2019).

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 </s> Case 2:17-cv-07215-JLS-JC Document 123 Filed 03/20/20 Page 1 of 3 Page ID #:3576

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JS-6

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UNITED STATES DISTRICT COURT

9

FOR THE CENTRAL DISTRICT OF CALIFORNIA

10 CITY OF LOS ANGELES,
11

12

Plaintiff,

13

v.

14 WILLIAM P. BARR, Attorney General of
15 the United States, et al.,

16 Defendants.
17

Case No.: 2:17-cv-07215-JLS-JC
PERMANENT INJUNCTION AND FINAL JUDGMENT
Judge: Honorable Josephine L. Staton

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Case 2:17-cv-07215-JLS-JC Document 123 Filed 03/20/20 Page 2 of 3 Page ID #:3577

1

PERMANENT INJUNCTION AND FINAL JUDGMENT

2 I. FISCAL YEAR 2017 BYRNE JAG CLAIMS

3

On September 13, 2018, the Court granted Plaintiff City of Los Angeles (“City”) a

4 preliminary injunction with respect to its claims that the immigration-related Notice and

5 Access Conditions1 that Defendants imposed on the Fiscal Year (“FY”) 2017 Edward

6 Byrne Memorial Justice Assistant Grant (“Byrne JAG”) program were unlawful. ECF

7 No. 93. The Court held that the “Notice and Access Conditions exceed statutory

8 authority, and trying to impose such conditions is a violation of the separation of powers

9 doctrine and ultra vires.” Id. at 4. Defendants appealed this order (No. 18-56292). On

10 October 31, 2019, the Ninth Circuit Court of Appeals affirmed the Court’s preliminary

11 injunction. See City of Los Angeles v. Barr, 941 F.3d 931 (9th Cir. 2019). The Ninth

12 Circuit reasoned that the Notice and Access Conditions on FY 2017 Byrne JAG program

13 awards were not authorized by statute and are therefore ultra vires. Id. at 945.

14 Accordingly, the Court hereby ENTERS final judgment for the City with respect to the

15 Notice and Access Conditions on the FY 2017 Byrne JAG program. In addition, the

16 Court hereby converts its preliminary injunction with respect to the Notice and Access

17 Conditions on the FY 2017 Byrne JAG program, ECF No. 93, to a permanent injunction

18 that prohibits Defendants from imposing or enforcing the 2017 Byrne JAG Notice and

19

20 1 As relevant here, Defendants require the following: (1) “A local ordinance, -rule, -regulation, -policy,

21 or -practice (or an applicable State statute, -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

22 access [to] a local-government (or local-government-contracted) correctional facility for the purpose of

permitting such agents to meet with individuals who are (or are believed by such agents to be)
23 [noncitizens] and to inquire as to such individuals’ right to be or remain in the United States” (“Access

24

Condition”); and (2) “A local ordinance, -rule, -regulation, -policy, or -practice (or an applicable State statute, -rule, -regulation, -policy, or -practice) must be in place that is designed to ensure that, when a

25 local-government (or local-government-contracted) correctional facility receives from [the Department
of Homeland Security (“DHS”)] a formal written request authorized by the Immigration and Nationality

26 Act that seeks advance notice of the scheduled release date and time for a particular [noncitizen] in such

facility, then such facility will honor such request and—as early as practicable . . . provide the requested
27 notice to DHS” (“Notice Condition”). U.S. Dep’t of Justice, Bureau of Justice Assistance, FY 2017

28 Byrne JAG Award, Special Condition No. 56 (ECF No 1-4, page ID #109).

1

Case 2:17-cv-07215-JLS-JC Document 123 Filed 03/20/20 Page 3 of 3 Page ID #:3578

1 Access Conditions on the City’s award. Accordingly, IT IS HEREBY ORDERED that

2 Defendants are PERMANENTLY ENJOINED from imposing, enforcing, or otherwise

3 implementing the Notice and Access Conditions announced by the Justice Department on

4 July 25, 2017, and subsequently modified by the Justice Department, in conjunction with

5 Los Angeles’ FY 2017 Byrne JAG application and award.

6 II. FISCAL YEAR 2017 COPS HIRING PROGRAM CLAIMS

7

On April 11, 2018, the Court granted summary judgment and a permanent

8 injunction to the City on its claims that the immigration-related scoring considerations

9 Defendants used in evaluating applications for the FY 2017 Community Oriented

10 Policing Services (“COPS”) Hiring Program grant were unlawful. ECF No. 75.

11 Defendants appealed this order (No. 18-55599), and the Ninth Circuit Court of Appeals

12 reversed the grant of summary judgment and the permanent injunction on July 12, 2019.

13 See City of Los Angeles v. Barr, 929 F.3d 1163 (9th Cir. 2019), reh’g denied, mandate

14 issued (Dec. 17, 2019). On December 20, 2019, Defendants filed an unopposed ex parte

15 application to vacate the Court’s order granting summary judgment and a permanent

16 injunction on the COPS claims. See ECF No. 75 (order); ECF No. 112 (ex parte

17 application to vacate). On December 23, 2019, the Court ordered that its injunction of

18 April 11, 2018 (ECF No. 75) be dissolved and vacated, effective immediately. ECF No.

19 113. At the joint request of the parties, the Court now HEREBY ENTERS partial

20 summary judgment in Defendants’ favor on Counts Four, Five, and Six of the City’s

21 Complaint pursuant to Rule 56 of the Federal Rules of Civil Procedure, and those Counts

22 are DISMISSED WITH PREJUDICE.

23

IT IS SO ORDERED.

24

Dated: March 20, 2020

25

26

HON. JOSEPHINE L. STATON

27

United States District Judge

28
2


[CONTENT] the City of Los Angeles | California | Sept. 29, 2017 | the U.S. Department of Justice ||| Covington & Burling | the U.S. District Court | the Central District | California ||| Los Angeles | Assistance Grant | Byrne JAG | the Community Oriented Policing Services | Office of Justice Programs | OJP | Bureau of Justice Assistance ||| FY2017 | Los Angeles ||| One | 8 ||| two | the U.S. Department of Homeland Security | U.S. | at least 48 hours ||| Byrne JAG | Chicago ||| DOJ | Los Angeles ||| Los Angeles ||| Immigration and Customs Enforcement (ICE ||| Los Angeles | 8 | DOJ | Los Angeles ||| Congress | COPS ||| Los Angeles ||| the U.S. Constitution's | the Spending Clause | Congress | the Tenth Amendment | Los Angeles's | the Administrative Procedure Act ||| the same day | Los Angeles ||| Manuel L. Real | Oct. 2, 2017 ||| Oct. 4, 2017 | FY2017 | around Oct. 30 ||| Real | Oct. 23 ||| FY2017 | APA | DOJ ||| Los Angeles | Oct. 16, 2017 | DOJ | Los Angeles' ||| Los Angeles | DOJ | COPS ||| Nov. 21, 2017 | Los Angeles | the Spending Clause | APA ||| Feb. 1 | five | seven | the District of Columbia | Los Angeles ||| DOJ | Jan. 12, 2018 | Los Angeles' | the Spending Clause | APA ||| Real | Feb. 28, 2018 | Apr. 11, 2018 | Los Angeles' ||| First | Real | Los Angeles' | FY2018 ||| Real | DOJ | the Spending Clause | Congress | APA |||  ||| Real | Los Angeles ||| the Ninth Circuit ||| July 12, 2019 | the Ninth Circuit | Los Angeles ||| 929 | 1163 ||| Court | the Spending Clause | the Tenth Amendment ||| Court ||| the Ninth Circuit ||| December 23, 2019 | April 11 | the Ninth Circuit's ||| Real | Los Angeles' | Byrne JAG | one | Byrne JAG ||| July 18, 2018 ||| Sept. 13, 2018 | Real | Los Angeles' |||  ||| Los Angeles | Byrne JAG ||| the Ninth Circuit ||| Four days later ||| October 31, 2019 | the Ninth Circuit | DOJ | Byrne JAG ||| 941 | 931 ||| Court | DOJ ||| December 31, 2019 | Josephine L. Staton ||| the Ninth Circuit | DOJ | the Byrne JAG | Staton | Los Angeles | March 20, 2020 ||| Staton | September 2018 ||| Court ||| Los Angeles | May 2020 | 20-55545 ||| the Ninth Circuit |||  [SUMMARY] This action, filed by the City of Los Angeles, California on Sept. 29, 2017, challenged the U.S. Department of Justice (DOJ)'s imposition of immigration-related conditions on federal funding to the city. The plaintiff, represented by its legal department and the law firm Covington & Burling, filed its complaint in the U.S. District Court for the Central District of California, seeking declaratory and injunctive relief.

Los Angeles receives federal funding through the Edward Byrne Memorial Justice Assistance Grant (Byrne JAG) Program and the Community Oriented Policing Services (COPS) Program, both administered by the DOJ and its component agencies Office of Justice Programs (OJP) and Bureau of Justice Assistance (BJA). The latest DOJ requirements for FY2017 program funding imposed new conditions on recipient cities, including Los Angeles. One condition was compliance with 8 U.S.C. § 1373, which provides that a local government entity cannot prohibit or restrict communication between government entities or officials and federal immigration authorities. The other two conditions required recipients to allow the U.S. Department of Homeland Security (DHS) to access any correctional or detention facility and question suspected undocumented immigrants about their right to be in the U.S., and to provide DHS at least 48 hours advance notice of any noncitizen's scheduled release from custody. 

After several lawsuits challenged these conditions, the federal government was preliminarily enjoined from imposing them on Byrne JAG funding in <i><a href="https://www.clearinghouse.net/detail.php?id=16080">City of Chicago v. Sessions</a></i>. The DOJ continued to revise these conditions, but Los Angeles believed the revised requirements were ambiguous. Los Angeles alleged that accepting these conditions would force it to abandon its longstanding law enforcement policies, intended to improve cooperation between immigrant residents and municipal police. These policies restrict the city from seeking and disclosing information about residents' immigration status, as well as from honoring Immigration and Customs Enforcement (ICE) detainer requests without an independent warrant or judicial determination of probable cause.

Los Angeles explained its view that its policies in fact complied with 8 U.S.C. § 1373, but that the notice and access conditions were so ambiguous that the DOJ could continue to wrongly deny Los Angeles the funding. Additionally, the city believed that Congress did not intend these immigration-related conditions in either the Byrne JAG statute or the COPS statute. Los Angeles argued that the access and notification requirements would compel it to choose between either submitting to an unconstitutional federal enforcement agenda, or losing critical funds.  The city contended that this violated the U.S. Constitution's separation of powers, the Spending Clause (by usurping Congress' ability to set conditions for funding), the Tenth Amendment (by usurping Los Angeles's power over its own municipal policy), and the Administrative Procedure Act (as arbitrary and capricious agency action). 

On the same day that it filed its complaint, Los Angeles also moved for a preliminary injunction, pointing to what it described as the irreparable injury from the loss of critical public-safety funds. 

The case was assigned to Judge Manuel L. Real on Oct. 2, 2017.

On Oct. 4, 2017 the parties moved for an expedited briefing schedule, because the DOJ expected to make FY2017 COPS funding decisions on or around Oct. 30. Judge Real granted the motion and planned for a hearing to be held on Oct. 23.

The DOJ, in its response to the city's complaint, argued against the preliminary injunction, asserting that the city lacked standing (as it would not have been a successful COPS applicant anyway in FY2017, regardless of the immigration-related factors); that COPS' immigration-related factors were consistent with the program's purposes under the APA; and that the DOJ had broad discretion to make the grants.

Los Angeles withdrew its motion for preliminary injunction on Oct. 16, 2017 because the DOJ had disclosed that Los Angeles' award application for this cycle would have been unsuccessful even without the immigration-related considerations. However, Los Angeles maintained its claims and request for permanent relief, because the DOJ continued to attach the immigration-related conditions to the COPS program.

On Nov. 21, 2017 Los Angeles then moved for partial summary judgment, arguing that the DOJ's use of COPS funding conditions violated the separation of powers, the Spending Clause, and the APA as arbitrary and capricious. On Feb. 1, five counties, seven cities, and the District of Columbia filed amici briefs supporting Los Angeles.

The DOJ also moved for partial summary judgment on Jan. 12, 2018 arguing that Los Angeles' claims were non-justiciable or, in the alternative, that the funding conditions were consistent with the governing statutes, the Spending Clause, and the APA. 

Judge Real held a motion hearing on Feb. 28, 2018, and on Apr. 11, 2018 issued an order granting Los Angeles' partial summary judgment motion and denying the DOJ's. First, Judge Real held that the case was not moot because Los Angeles' harm was capable of repetition if the City applied for a FY2018 grant. As to the substantive claims, Judge Real held that the challenged conditions exceeded DOJ's legal authority (as federal power infringing on the state police power), in violation of the Spending Clause (because Congress did not unambiguously condition grant receipt on local compliance with federal authorities for a matter not reasonably related to COPS's goal), and in violation of the APA (as arbitrary and capricious without a reasonable basis). Judge Real then permanently enjoined the DOJ from imposing the challenged conditions nationwide. In doing so, Judge Real held that Los Angeles would suffer irreparable harm in future grant cycles against its competitors, making a nationwide injunction necessary. The government appealed to the Ninth Circuit.

On July 12, 2019, the Ninth Circuit reversed the district court's summary judgment in favor of Los Angeles. 929 F.3d 1163. The Court rejected the plaintiff's claims that the DOJ's use of certain factors in scoring applicants for COPS grants violated the Spending Clause or the Tenth Amendment. The Court also held that the DOJ did not exceed its statutory authority or act arbitrarily and capriciously. The plaintiffs requested rehearing, but the Ninth Circuit denied to rehear the appeal. On December 23, 2019, the district court dissolved and vacated the April 11 injunction in accordance with the Ninth Circuit's ruling.

Meanwhile, back in the district court, Judge Real had stayed Los Angeles' Byrne JAG claims pending one of the following events: (a) the nationwide injunction issued in City of Chicago v. Sessions is dissolved, in which case proceedings on these claims would resume; or (b) the case results in a nationwide permanent injunction of the challenged Byrne JAG conditions, after all opportunities for appeal were exhausted. 

On July 18, 2018, the plaintiff filed a motion for a preliminary injunction of the Byrne JAG funding conditions. 

On Sept. 13, 2018, Judge Real granted Los Angeles' application for a preliminary injunction, enjoining the notice and access conditions imposed upon the Byrne JAG grant. The court held that the statutes did not grant the Attorney General authority to impose such conditions. The court also held that Los Angeles faced irreparable harm because it was forced to make "an impossible choice: either it must certify compliance with unconstitutional and unlawful directives that impinge on the City's sovereignty, damage community trust, and harm public safety, or it will lose congressionally authorized Byrne JAG funding." The government appealed this order to the Ninth Circuit, which then docketed the appeal as No. 18-56292. Four days later, the district court denied the government's motion to dismiss. 

On October 31, 2019, the Ninth Circuit affirmed the district court's preliminary injunction against the DOJ's use of the notice and access conditions on recipients of Byrne JAG grants. 941 F.3d 931. The Court found that the DOJ lacked statutory authority to impose the conditions.

On December 31, 2019, the case was reassigned to Judge Josephine L. Staton. 

In light of the Ninth Circuit finding that the DOJ lacked statutory authority to impose the notice and access conditions on the Byrne JAG grants, Judge Staton entered final judgment for Los Angeles regarding the notice and access claim on March 20, 2020. Judge Staton converted the September 2018 preliminary injunction into a permanent injunction prohibiting the defendants from enforcing the notice and access conditions. In addition, the Court entered partial summary judgment in favor of the defendants on the COPS claims and dismissed these claims with prejudice.

The defendants appealed the final judgment in favor of Los Angeles on the notice and access claims in May 2020, docket 20-55545. The parties then began mediation, and the Ninth Circuit stayed the appeal pending mediation.

This case is ongoing.