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President Trump’s Confusing New Attack on Sanctuary Cities

This morning, Attorney General Sessions announced the anticipated Trump administration crackdown on Sanctuary Cities. In his speech, AG Sessions urged state and local governments to abandon sanctuary policies, suggesting that jurisdictions continuing such policies will be denied Justice Department grants. However, while he spoke broadly of sanctuary cities, the AG narrowed his language in referencing grant denials, suggesting such would only occur where the policy leads to a violation of 8 U.S.C. § 1373. This leaves it unclear if he was announcing a new, more aggressive policy, or simply was reiterating existing policy.

This blog has previously discussed the Obama administration’s interpretation of 8 U.S.C. § 1373 and the limitations on the enforcement of that statute. (See: First Suit Filed Over Sanctuary Cities Order and President Trumps Toothless Attack on Sanctuary Cities). If the Trump Administration is attempting to go further, to force state and local governments to abandon sanctuary policies and enforce immigration law, then it may well be acting unconstitutionally. That point is well discussed here.

One thing is clear, the AG believes that state and local governments must comply with immigration detainers. He is wrong.

A detainer is a request, not an order. 8 C.F.R. § 287.7(a). Interpreting this provision, Federal District Magistrate Judge Stewart concluded in Miranda-Olivares v. Clackamas Cty., No. 3:12-cv-02317-ST, 2014 U.S. Dist. LEXIS 50340 (D. Or. Apr. 11, 2014) that detainers are not mandatory and that agencies are free to release individuals named in such a detainer.  In doing so, Judge Stewart followed the holding of the Third Circuit in Galarza v. Szalczyk, 745 F.3d 634, 640 (3d Cir. 2014). Subsequent cases have reached the same conclusion.

In Printz v. United States, 521 U.S. 898, 933, 117 S. Ct. 2365, 2383 (1997) the Supreme Court held “The Federal Government may not compel the States to enact or administer a federal regulatory program.” Federal immigration law reflects this principle. It contains no provision requiring state or local governments to enforce immigration law. In fact is signals the opposite. 8 U.S.C. § 1357(g) provides the AG authority to enter agreements with state and local governments for their assistance with the enforcement of immigration laws. Paragraph (9) of that subsection makes clear that state and local governments can refuse to enter such an agreement. This voluntariness provision cannot be squared with the AG’s speech of this morning.

Opinion in Washington State v. Trump

Opinion of the Ninth Circuit Court of Appeals

Documents From Washington & Minnesota v. Trump Ninth Circuit Case

The Ninth Circuit now has a public access page for State of Washington v. Trump filings, so I won’t be updating this list. Access the full list at:

Below are the key documents filed with the Ninth Circuit Court of Appeals as of 2/6/2017 @ 12:30pm pacific time:

14 – Stay motion 2 4 17 FILE VERSION

15 – Order Denying Immediate Stay

19.1 – Tech Companies Amicus Motion

19.2 – Tech Companies Amicus Brief

20.1 – Korematsu Amicus Motion

20.2 – Korematsu Amicus Brief

21.1 – Hawaii Motion to Intervene

21.2 – Hawaii Brief

22.1 – Law Profs Amicus Motion

22.2 – Law Profs Amicus Brief

24.1 – ACLU Amicus Motion

24.2 – ACLU Amicus Brief

27 – HIAS, INC Amicus Brief

28 – WA MN Opposition

29 – WA MN Opposition Addenda

43.2 – Constitutional-Scholars

44.1 – ADL Amicus Motion

44.2 – ADL Amicus Brief

49.1 – Law Profs Motion to File Corrected Amicus Brief

49.2 – Law Profs Corrected Amicus Brief 2017-2-5-Declaration-Of-National-Security

First Suit Filed Over Sanctuary Cities Order

The City and County of San Francisco filed a federal lawsuit today challenging President Donald Trump’s anti-sanctuary city executive order.  The suit claims that the order is unconstitutional and exceeds the president’s power. In addition to the executive order, the suit cites documents issued by the Department of Justice last year which gave an expansive interpretation to 8 U.S.C. 1373, the statute relied upon to justify defunding sanctuary cities.  According to the Complaint:

“This lawsuit is about state sovereignty and a local government’s autonomy to devote resources to local priorities and to control the exercise of its own police powers, rather than being forced to carry out the agenda of the Federal government. Under the Constitution and established principles of federalism, state and local governments have this autonomy. The Executive Order purports otherwise to wrest this autonomy from state and local governments, and a court order is needed to resolve this controversy.”

8 U.S.C. 1373 bars governmental entities from prohibiting or restricting the communication of individual immigration status to or from the immigration service. In a guidance document, DOJ imposed a requirement that state and local governments inform employees of the limitations the statute places on state and local governments. In an earlier memo, the department’s Office of Inspector General also suggested that state and local policies on the handling of immigration holds might violate that statute.

City and County of San Francisco v. Donald J Trump Complaint

Office of Justice Programs Guidance Regarding Compliance with 8 U.S.C. § 1373

Memorandum to the Office of Justice Programs Regarding Grantee Compliance with 8 U.S.C. § 1373

President Trumps Toothless Attack on Sanctuary Cities

Former Oregon Supreme Court Justice Hans Linde was famous for saying “You have to read the statutes.” Never was this so true as in the case of President Trumps “Executive Order: Enhancing Public Safety in the Interior of the United States.” The White House has touted this order as fulfilling his campaign promise to crack down on sanctuary cities. It does no such thing.

The relevant provisions are Sections 8 and 9. Section 8 directs the Secretary of Homeland Security to engage with state and local officials, “for the purpose of preparing to enter into agreements under section 287(g) of the INA (8 U.S.C. 1357(g)).” 8 U.S.C. 1357(g) authorizes the Attorney General to enter agreements with state and local governments authorizing local law enforcement officers to assist in the enforcement of the immigration act. Significantly, states and cities cannot be forced to participate in this program; and sanctuary cities are unlikely to do so.  8 U.S.C. 1357(g)(9).

The heart of President Trump’s attack is Section 9 which establishes an executive branch policy of ensuring that state and local governments comply with 8 U.S.C. 1373. That statute bars governmental entities from prohibiting or restricting the communication of individual immigration status to or from the immigration service. The Executive Order goes on to grant the Attorney General and the Secretary of Homeland Security discretionary authority to restrict funding to jurisdictions that “willfully refuse to comply with 8 U.S.C. 1373”. This is what is being described as defunding sanctuary cities.

It is important to keep in mind exactly the limited nature of 8 U.S.C. 1373. While it prohibits adoption of restrictions on the voluntary communication of immigration status information, it imposes no affirmative obligation on state or local governments. It does not require them to enforce immigration law. It does not require them to inquire into an individual’s immigration status. It does not require them to permit their employees to make such inquiries. Actions such as these do not amount to willful refusal to comply with 8 U.S.C. 1373 and provide no basis for the Attorney General or the Secretary of Homeland Security to exercise the discretionary granted by the President.

Most sanctuary provisions already comply with the narrow prohibitions of 8 U.S.C. 1373. For example, Oregon law prohibits the use of government resources to enforce the immigration law while providing an exception for immigration status requests. See: ORS 181A.820. If a sanctuary policy violates 8 U.S.C. 1373, it is easily revised to eliminate the offending provision while remaining true to the original intent of the designation. Considering this, the Trump administration will have little opportunity to flex this new policy.

Past threats support adverse employment action even without evidence of future dangerousness

When employers learn of threatening conduct by employees they often schedule a fitness for duty exam to determine if that employee presents an ongoing threat. May an employer still discipline for that past threatening conduct if the examiner concludes the employee is not a threat? The Ninth Circuit answered that question yes in yesterday’s opinion in Curley V. City of North Las Vegas.

In December 2008, Curley filed a charge of discrimination with the EEOC, alleging that the City had failed to accommodate his hearing impairment and that it was retaliating against him for having filed a prior charge of retaliation and race and age discrimination. The next month he requested a new accommodation for his hearing loss, which the City also rejected. Instead the City recommended that he use dual hearing protection. Shortly after this Curley responded inappropriately to a coworker’s request that Curly remove his hearing protection so they could talk about a work related task. The City placed Curly on leave and started an investigation into his behavior, which included a fitness for duty exam. While the examiner concluded that Curly was fit for duty and not a danger, the investigation found that Curley had repeatedly threatened coworkers, supervisors, and their families. This included threats of violence.

After a hearing, the City discharged Curley for his past threatening behavior as well as other workplace misconduct uncovered in the investigation. His subsequent claim for ADA discrimination and retaliation was dismissed by the District Court on summary judgment. In upholding the District Court, the Ninth Circuit only addressed the employer’s nondiscriminatory reasons for termination, assuming for that purpose that Curley could establish a prima facie case of retaliation and discrimination. To support its termination decision, the City cited Curley’s past threatening behavior as well as the other misconduct uncovered by the investigation. Curley argued that the  fitness for duty findings sufficiently contradicted  the stated reasons for his termination that a jury trial was required to determine the true motivation for the employers action. The court rejected that argument. According to the court:

“The City’s notice of termination specifically relied on Curley’s history of intimidating coworkers. Nothing in the fit-for-duty evaluation addressed that history. Thus, even if the City had Curley evaluated to determine whether he posed a danger to other employees, the City represented that it fired him for past threats, not for the potential of future violence. Curley presented no evidence that the City’s reliance on past threats was actually pretext for discrimination.”

Employment litigators are advised to read footnote 3 to the opinion. In it Judge Friedland details when a plaintiff’s successful attack on one of an employers proffered nondiscriminatory reasons for an adverse employment action is sufficient to undermine all the employers reasons. In this case the court concluded that even if plaintiff’s attack on the past threat reason were successful, that argument did not undermine the remaining reasons offered by the employer, providing a second reason to affirm the District Courts ruling.

Supreme Court Preview – October 2014 Term

In less than two weeks the U.S. Supreme Court will again start holding oral arguments. One of the first cases up is a search and seizure case!

Below are cases accepted for review which may be of interest to government litigators and their clients. Each case is linked with its docket on the Scotus Blog, where you can access the briefs. If available, a link to the Legal Information Institute’s argument preview has also been provided.

Heien v. North Carolina – Whether a police officer’s mistake of law can provide the individualized suspicion that the Fourth Amendment requires to justify a traffic stop.
Argument: October 6, 2014

Holt v. Hobbs – Does a prison policy that restricts beards on inmates violate the Religious Land Use and Institutionalized Persons Act (“RLUIPA”).
Argument: October 7, 2014

Dart Cherokee Basin Operating Company, LLC v. Owens – Whether a defendant seeking removal to federal court is required to include evidence supporting federal jurisdiction in the notice of removal.
Argument: October 7, 2014

T-Mobile South, LLC v. City of Roswell, GA – Must a decision denying a request to place, construct, or modify a cell tower state the reasons for the denial, for a state or local government to satisfy the Communications Act’s “in writing” requirement.
Argument: November 10, 2014

Young v. United Parcel Service – Whether, and in what circumstances does the Pregnancy Discrimination Act require an employer that provides work accommodations to non-pregnant employees with work limitations to provide work accommodations to pregnant employees who are “similar in their ability or inability to work.”
Argument: December 3, 2014

Reed v. Town of Gilbert, Arizona – whether a municipal sign ordinance, which differentiates between certain types of temporary noncommercial signs, is consistent with the First Amendment.
Argument: Not Yet Scheduled

Mach Mining v. Equal Employment Opportunity Commission – Whether and to what extent a court may enforce the Equal Employment Opportunity Commission’s mandatory duty to conciliate discrimination claims before filing suit.
Argument: Not Yet Scheduled

Will that employment release land you in more trouble, the EEOC strikes out!

A few months back I posted on this subject after the EEOC sued CVS over terms of its severance agreement which are in common use. Now comes word that the District Court has dismissed the EEOC lawsuit for failing to state a valid claim. No written decision has been issued yet, but your can find more details, including links to the briefs, at Eric Meyer’s The Employer Handbook blog. His excellent blog first alerted me to the original lawsuit.

Village at Main Street, the County Wins Round III

It ain’t over till it’s over! This long running battle between a taxpayer and Clackamas County has now spawned three Supreme Court opinions, in the process providing a history lesson on real property assessment in Oregon.

It all starts in 2005, when an employee of the assessor’s office visited an apartment complex under construction in Clackamas County. At that point site improvements were mostly complete, but the buildings were not. The assessor’s office failed to factor the value of those site improvements into the land value of that property for the following two tax years. Realizing this error, in 2007 the assessor added the value of the site improvements as “omitted property”. Taxpayer appealed that decision, resulting in the Supreme Court’s opinion in Village I, holding that the site improvements did not qualify as omitted property. Round one to the taxpayer.

While Village I was pending in the Supreme Court, taxpayer petitioned the Tax Court for attorney fees. The Tax Court granted that petition, finding an award of fees to be appropriate whenever the losing governmental party appeals from a well-reasoned opinion of its Magistrate Division. In Village II the Supreme Court rejected that standard. It also reversed the award, finding the County had an objectively reasonable basis to appeal the magistrates ruling in light of the serious issue of statutory construction addressed in Village I. Round II to the County.

This brings us to Round III. In addition to the omitted property issue, taxpayer also appealed the valuation of improvements to its property. That litigation was stayed during litigation of the omitted property issue. The Supreme Courts Village I decision now brought that issue front and center. But first the legislature tossed a wrench into the works!

When the improvement value was appealed, Oregon limited the issues on appeal to only the component of assessed value challenged by the party filing the appeal. This rule could result in an under assessment if the total valuation was correct, but that assessment was not correctly allocated between land and improvement values. During the 2011 session the legislature addressed this issue, amending ORS 305.287 to permit the non-appealing party raise the value of the unappealed component. This change took effect while taxpayer’s improvement value appeal was pending before the Regular Division of the Tax Court. Citing that amendment, the County moved to raise the issue of land value in response to taxpayers improvement value appeal. The Tax Court denied that motion, interpreting the amended statute as applying only to appeals to the Magistrate Division. This is the issue decided yesterday by the Supreme Court in Village III. Its conclusion, the unappealed value component can be raised at any level of appeal except for an appeal before the Supreme Court. Round III to the County.

Yesterday’s opinion ended by remanding this case to the Tax Court for further proceedings. Standby for round IV!

Note: Full disclosure, the author was involved in some of the aspects of this litigation.

Let the Prosecutor Decide!

I was all set to write a long post on the Ninth Circuit’s decision in Tatum v. Moody, then I found that Daniel Barer at the Government Liability Update had beat me to it! Read his post for the juicy details!

In Tatum, the Ninth Circuit held that under some circumstances law enforcement officers may be liable under § 1983 if they withhold exculpatory information from prosecutors. According to the court:

“Where, as here, investigating officers, acting with deliberate indifference or reckless disregard for a suspect’s right to freedom from unjustified loss of liberty, fail to disclose potentially dispositive exculpatory evidence to the prosecutors, leading to the lengthy detention of an innocent man, they violate the due process guarantees of the Fourteenth Amendment.”

Unlike a lot of court decisions, the Tatum court also tells officers how to avoid this liability, don’t hide information from the prosecutor. As the court notes, prosecutors have a global perspective on the case, a rigorous understanding of the applicable law, and legal authority to dismiss charges, if appropriate. So tell them everything and let them decide what needs to be disclosed!

For lawyers handling police practices cases, this is a must read decision. The highlights:

  • It invites Supreme Court review by following circuit precedent that post-arrest incarceration claims arise under the Fourteenth Amendment while footnoting that its holding conflicts with at least one other Circuit, and that a plurality of Supreme Court justices have also suggested the Fourth Amendment governs such claims.
  • It also reconciles some conflicting Ninth Circuit case law in the area.
  • Discusses the distinct responsibilities of jailers, investigating officers and prosecutors faced with claims or evidence that the wrong person has been arrested.

Just be sure to read the whole case as even the last footnote makes an important point!