Back in January, the Department of Justice sent letters to several cities and counties, including King County, expressing concern over sanctuary city policies, demanding further documentation of existing policies, and threatening consequences if its demands are not met. Yesterday the DOJ sent the same letter to the City of Seattle, with the same demands and threats.
The heart of the letter is a familiar one for this Department of Justice: whether the city is compliant with 8 U.S.C. 1373, which prohibits a local jurisdiction from placing any limitations on its personnel’s ability to share information with federal immigration officials.
Seattle’s stance is that its “welcoming city” policy is compliant with 1373, for two reasons. First, because it prohibits city employees from asking people about their immigration status — so the city has no information to share with immigration officials in the first place. Second, because it has a “saving clause” that requires city staff to comply with all federal laws.
The DOJ’s letter is in effect a Public Document Request, which asks for:
All documents reflecting any orders, directives, instructions, or guidance to your law enforcement employees (including, but not limited to, police officers, correctional officers, and contract employees), whether formal or informal, that were distributed, produced, and/or in effect during the relevant timeframe, regarding whether and how these employees may, or may not, communicate with the Department of Justice, the Department of Homeland Security, and/or Immigration and Customs Enforcement, or their agents, whether directly or indirectly.
It requests these documents by May 14th, otherwise the DOJ will subpoena them. And it threatens to seek return of certain grant funds to police departments (Byrne JAG funding) and deem the city ineligible for future funding from that program if it finds that the city is not in compliance with 1373.
“Unlike some in the Trump administration, Seattle respects the rule of law. Our City is tasked with protecting public safety for all people who call Seattle home. We will also protect our residents from unjust law enforcement actions,” said Mayor Durkan. “Our City complies with federal immigration law and asks that the Department of Justice and ICE do the same. The federal government does not get to run our cities or convert our local law enforcement officials into immigration cops. I implore this administration to focus on real public safety threats, like the opioid crisis, instead of unnecessarily threatening our residents and mayors across the country.”
Two months ago, Durkan issued a directive that all ICE requests for information and/or access to city buildings and other resources should be forwarded to the Mayor’s Office legal counsel and the City Attorney “for further assessment on the merit of the request.”
In January when King County received its letter, City Attorney Pete Holmes pointed out that there is a nationwide injunction in place that prohibits the DOJ from using section 1373 compliance as grounds for withholding grant funding (read the ruling here). Holmes suggested that the DOJ’s continued pressure on 1373 compliance, including the letters, is potentially grounds for finding the department in contempt of court. Earlier this week, the Ninth Circuit Court of Appeals held a hearing on the DOJ’s appeal of that injunction, but the court has left it in place while it deliberates (watch the hearing video here).
A parallel case has also been playing out in the courts, related to the DOJ’s use of 1373 compliance as a means for a city to earn “bonus points” in applying for another federal grant program for community policing (the COPS program). On Wednesday, the federal judge in that case ruled that the DOJ may not use 1373 compliance to favor certain applicants, because to do so violates the Spending Clause (which only grants Congress the right to authorize conditions on grants and requires conditions to be related to the purpose of the grant), and because it interferes with state and local policing rights (full ruling here).
Despite losing consistently in the courts, the Trump administration is showing no signs of backing down from its efforts to punish cities that adopt so-called “sanctuary city” policies. Meanwhile, the City of Seattle remains resolute in its role as a “welcoming city” and defiant in the face of the DOJ’s efforts.