On March 7, 2018, U.S. Attorney General Jeff Sessions announced a lawsuit challenging California’s “sanctuary” state laws.  This is only one in a series of actions that Attorney General Sessions’ has taken to curtail “sanctuary” efforts in the United States.

While the term “sanctuary” city or state does not have a precise definition, it generally refers to a jurisdiction that limits its cooperation with federal immigration authorities.  The idea behind a “sanctuary” city or state is to reduce the fear of deportation among immigrants living in a jurisdiction illegally, so that they are more willing to report crimes, use health and social services, and enroll their children in school.

On January 1, 2018, California became a “sanctuary” state when three pieces of state legislation that were introduced and passed in 2017, became effective:

  • SB 54: Prohibits state and local law enforcement agencies from using personnel or funds to hold, question, or share information about immigrations with federal immigration agents, unless those individuals have been convicted of one or more offenses from a list of eight-hundred (800) serious misdemeanors and felonies.
  • AB 103: Grants the California’s Attorney General the authority to monitor conditions in federal immigrant detention facilities.  The bill also prohibits municipalities from entering into new contracts with the federal government for immigrant detention facilities.
  • AB 450: Requires employers to ask for a judicial warrant before allowing immigration officials access to “non-public” areas of a worksite.  The bill also requires employers to give notice to employees of any immigration review of employment records.

How does California’s “sanctuary” state status affect all law enforcement agencies in the state?

Not all municipalities in California support the state’s newly minted “sanctuary” status.  However, they are now all in the same boat:  According to the federal government, no law enforcement agency in California is currently eligible for the leading source of federal criminal justice grants.

The Edward Byrne Memorial Justice Assistance Grant (“Byrne JAG”) program is the primary source of federal criminal justice funding to state and local law enforcement agencies.  Byrne JAG funds are used for a variety of programs including law enforcement, prosecution, indigent defense, courts, crime prevention and education, corrections, drug treatment and enforcement, planning, evaluation, technology improvement, crime victim and witness initiatives, and mental health programs.  In 2017, more than $300 million dollars was available to state, tribe, and local government law enforcement agencies across the country.

Certification of Compliance with 8 U.S.C. Section 1373

In July 2017, Attorney General Sessions formally implemented a new condition on Byrne JAG applicants.  This new condition required applicants to 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.

Shortly after Sessions implemented this new requirement, several “sanctuary” localities including Chicago, Philadelphia, Santa Clara, and San Francisco initiated lawsuits challenging the certification of compliance requirement.  District courts largely sided with the “sanctuary” municipalities.

United States v. California, No. 18-264

Attorney General Sessions’ lawsuit against California comes after his attempts to withhold Byrne JAG funds from “sanctuary” jurisdictions have been struck down by federal courts.  In this most recent move, Sessions is attempting to invalidate California’s trilogy of “sanctuary” state laws by arguing that they violate the Supremacy Clause of the U.S. Constitution by obstructing the federal government’s ability to enforce immigration laws.

Proponents of California’s “sanctuary” status contend that the laws are not contrary to Section 1373.  In addition to arguing that the laws are not in direct conflict with Section 1373, they argue that the Tenth Amendment prevents the federal government from commandeering state and local governments to enforce federal immigration laws.

The outcome of Sessions’ lawsuit will provide guidance to “sanctuary” jurisdictions across the nation that are perhaps waiting to see how this case unfolds before moving forward with their own “sanctuary” legislation.  In the meantime, law enforcement agencies in California cannot do much but remember to never take federal grants for granted.