LAW DEPARTMENT One Parkway CITY OF PHILADELPHIA 1515mm Philadelphia. PA 19102-1595 PEDRO TULANTE City Solicitor (215) 683-5003 (Tel) (215) 683-5069 (Fax) June 22, 2017 VIA ELECTRONIC SUBMISSION Tracey Trautman Acting Director, Bureau of Justice Assistance Of?ce of Justice Programs United States Department of Justice 810 Seventh Street, N.W. Washington DC, 20531 Dear Acting Director Trautman: The City of Philadelphia submits this letter in response to the request by the United. States Department of Justice?s Office of Justice Programs (Bureau of Justice Assistance), as part of Philadelphia?s 2016 Justice Assistance Grant Program Award, that the City certify its compliance with 8 U.S.C. 1373. The City reaffirms its commitment to using JAG grants to reduce crime in Philadelphia, as well as to improve the administration of criminal justice. These grants have become a staple of the City?s law enforcement programs; in recent years, they have supported innovations in everything from courtroom technology, to prisoner reentry, to youth violence prevention. Philadelphia is proud that, in part because of these interventions, violent crime in the City has fallen precipitously: In 2016, property crimes were at their lowest since 1971, robberies were at their lowest since 1969, and violent crime was lower than at any point since 1979. But these developments are also the story of tireless and effective community? building by the Philadelphia Police Department, including through the methods discussed in this Memorandum. Philadelphia believes that the foundation of a safe city is a strong community. Our of?cers have worked hard to gain the trust and cooperation of City residents, crime victims, and witnesses?regardless of their immigration status?and these efforts are showing results. Day by day, they are making our community stronger and our streets safer. Section 1373 of Title 8 (?Section 1373?) contains a single mandate: A State and/or locality cannot prohibit its officials from exchanging information with US Immigration and Customs Enforcement about immigration or citizenship status. See 8 U.S.C. 1373(a). Philadelphia complies with this mandate. Tracey Trautman June 22, 2017 Acting Director, Bureau of Justice Assistance PageIZ First, the City does not violate Section 1373 because the City?s policy restricting asking about or collecting immigration status information from people it encounters is fully consistent with Section 1373: The federal statute does not require cities to inquire about or collect immigration status information, but only prohibits cities from restricting the sharing of that information ?fths)? have it. See Part II, infra. Second, the City complies with Section 1373 because its policies explicitly allow local law enforcement to cooperate with federal authorities and to share with them identifying information about criminal suspects in the Citywincluding immigration status information, to the extent it inadvertently comes into the City?s possession. Indeed, through various routine law enforcement databases to which the federal government (including ICE) has access, the City makes available the names and fingerprint data of criminal suspects, arrestees, and detainees, irrespective of their immigration status. See Part in??a. These routine and longstanding practices show that the City does not prohibit information-exchange with the federal government when it comes to criminal SUSpects, detainees, or arrestees. That is the heart of Section 1373?s concern, and Philadelphia complies with the statute?s instruction, both in the text of its policies and in the practice of its officers and employees. Third, as the City does not seek or collect immigration status information from witnesses and victims of crimes or from law-abiding persons seeking City benefits and services, the City?s policy prohibiting the disclosure of any such information is largely inconsequential. See Part IV, in?w. This policy ensures that basic and critical services are available to the City?s undocumented immigrant residents, and promotes cooperation between members of the immigrant community and law enforcement. Indeed, our residents who fear that they will be ensnared in immigration proceedings by COOperating with police are more likely to remain in the shadows and less likely to contact or cooperate with police. Moreover, protecting those persons? con?dential information is consistent with Section 1373 because if the statute were construed otherwise?and were interpreted to somehow regulate the City?s conduct with respect to these individuals?it would exceed the federal govermnent?s authority under the Constitution. Finally, the City?s policies on ICE detainer requests are not relevant to the present certi?cation analysis. See Part V, in?'a. While the City certi?es that it complies with Section 1373, it reserves any arguments it might make at a later date regarding the legality of the imposition of requirements related to Section 1373, including the Department of Justice?s decision to impose a certification or compliance requirement on the City as a condition of receiving JAG grants. See Part VI, in?'a. Tracey Trautman June 22, 2017 Acting Director, Bureau of Justice Assistance Page 3 I. Background. The City has two policies that are directly relevant to this certi?cation. Con?dentiality Order Executive Order No. 8~09, entitled ?Policy Concerning Access of Immigrants to City Services,? was executed by then-Mayor Michael A. Nutter on November 10, 2009 (?Con?dentiality Order?) and remains in effect.1 Executive Order 8-09 instructs City of?cials to protect the con?dentiality of individuals? immigration status and citizenship information to ?promote the utilization of [City] services by all City residents and visitors who are entitled to and in need of them, including immigrants.? See Con?dentiality Order preamble. The intent is that undocumented immigrants should equally come forward to access City services to which they are entitled, without having to fear ?negative consequences to their personal lives? by revealing their identities to the City. Id. The Order de?nes ?con?dential information? as ?any information obtained and maintained by a City agency related to an individual?s immigration status.? Id 3A. Section 2 of the Con?dentiality Order directs City of?cers and employees to refrain from af?rmatively collecting information about immigration status, unless that information is necessary to their speci?c task or the collection is otherwise required by law. The Order states: ?No City of?cer or employee, other than law enforcement of?cers, shall inquire about a person?s immigration status unless: (I) documentation of such person?s immigration status is legally required for the determination of program, service or bene?t eligibility . . . or (2) such of?cer or employee is required by law to inquire about such person?s immigration status.? Id. 2A. The Confidentiality Order has additional mandates for law enforcement of?cers with regard to af?rmative collection, directing that of?cers ?shall not? stop, question, detain, or arrest an individual solely because of his perceived immigration status; shall not ?inquire about a person?s immigration status, unless the status itself is a necessary predicate of a crime the of?cer is investigating or unless the status is relevant to identi?cation of a person who is suspected of committing a crime?; and shall not ?inquire regarding immigration status for the purpose of enforcing immigration laws.? Id. 28(1), (2), (4). Witnesses and victims are afforded special protection: Law enforcement of?cers ?shall not . . . inquire about the immigration status of crime victims, witnesses, or others who call or approach the police seeking help.? Id. The Con?dentiality Order also requires City of?cers and employees to avoid making unnecessary disclosures of immigration status information that may inadvertently come into their possession. Id. SB (?No City of?cer or employee shall disclose con?dential 1 A copy of the Con?dentiality Order is attached to this letter as Exhibit A. Tracey Trautman June 22, 2017 Acting Director, Bureau of Justice Assistance Page 4 It permits disclosure, however, both by City ?officer[s] or when ?such disclosure is required by law,? or when the subject individual ?is suspected . . . of engaging in criminal activity.? Id. Philadelphia?s Con?dentiality Order is motivated by concerns among of?cials across local government?from the City?s social services departments to its law enforcement departments?that members of Philadelphia?s immigrant community would otherwise not access the services to which they and their families are entitled, and would avoid reporting crimes to the police, for fear of exposing themselves or their family members to adverse immigration consequences. When members of the immigrant community are too afraid to come forward and interact with City service providers, and are too afraid to Speak with law enforcement of?cials, the City?s health, safety, and public welfare suffer. For instance, when immigrant parents do not enroll in or claim the health, education, nutrition, and other bene?ts to which they and their children are entitled, it is not just those families and children who suffer, but the entire City. Philadelphia has an interest in seeing that every child achieves his or her greatest potential in school, that every member of its community receives preventative healthcare, and that every person is safe from domestic abuse and violent crime. Similarly, when members of the immigrant community do not report crimes to the police or are too afraid to participate as witnesses in criminal proceedings, it is more likely that crimes will not be resolved, criminals will reoffend, and communities will live in greater fear and greater danger. The City?s Con?dentiality Order thus plays an important role in mitigating these undesired outcomes. Memorandum 0 1 -06 The other policy relevant to this certi?cation is Philadelphia?s Police Department Memorandum 01-06, entitled ?Departmental Policy Regarding Immigrants,? which was issued by then-Police Commissioner John F. Timoney on May 17, 2001 (?Memorandum Memorandum 01-06 states that its overarching goal is for ?the Police Department [to] preserve the con?dentiality of all information regarding law abiding immigrants to the maximum extent permitted by law.? Memorandum 01-06 2B. The policy thus prohibits police of?cers in Philadelphia from disclosing individuals? immigration status information to other entities, unless doing so is necessary for criminal law enforcement purposes, the subject individual has requested such transmission, or the disclosure is otherwise required by law. The Memorandum sets out this non-disclosure instruction, and its three exceptions, explicitly: ?In order to safeguard the con?dentiality of information regarding an immigrant, police personnel will transmit such information to federal immigration authorities only when: (1) required by law, or (2) the immigrant requests, in writing, that the information be provided, to verify his or her immigration status, or (3) the immigrant is suspected of engaging in criminal activity, including attempts to 2 A copy of Memorandum 01?06 is attached to this letter as Exhibit B. Tracey Trautman June 22, 2017 Acting Director, Bureau of Justice Assistance PagelS obtain public assistance bene?ts through the use of fraudulent documents.? Memorandum 01-06 Furthermore, notwithstanding the instruction to maintain con?dentiality in Section 3A, Memorandum 01-06 directs police of?cers to continue adhering to typical law enforcement protocols for the reporting and investigating of crimes. This mandate applies irrespective of the criminal suspect?s identity. See id. 1[ BB (?Sworn members of the Police Department who obtain information on immigrth suSpected of criminal activity will comply with normal crime reporting and investigating procedures?). It also instructs that ?[t]he Philadelphia Police Department will continue to cooperate with federal authorities in investigating and apprehending immigrants suspected of criminal activities.? Id. 11 3C. The rationale behind the Philadelphia Police Depaltment?s con?dentiality policy is similar to that behind Executive Order No. 8-09: to encourage immigrants to make use of City services available to them without fear of negative repercussions, and to encourage victims and witnesses of crimes to cooperate with the police. See id. 2B (?All immigrants should be encouraged to utilize these City services without fear of any reprisals because the city has no obligation to report any illegal immigrants to the federal government as long as they are law abiding?); id. 3C who are victims of crimes will not have their status as an immigrant transmitted in any Indeed, an essential tenet of modern policing is that police departments should engender trust from the communities they serve, including immigrant communities, so members of those communities will come forward with reports of criminal wrongdoing.3 By assuring victims and witnesses that they will not suffer adverse immigration consequences as a result of sharing information with law enforcement officials, the policy helps police of?cers collect necessary information and cooperation to combat crime. Even predating Memorandum 01-06, the longstanding policy of the Philadelphia Police Department has been to not collect information related to immigration status at any point in the detention, arrest, or booking process of an individual. This policy, which is part of Philadelphia Policy Academy training, re?ects the Police Department?s considered judgment that collecting immigration status simply does not assist in or promote community policing. 3 See, President?s Task area on 2151? Century Policing, Recommendation 1.9 (explaining that, among other things, ?law enforcement agencies should build relationships based on trust with immigrant communities. This is central to overall public safety. Immigrants often fear approaching police officers when they are victims of and witnesses to crimes and when local police are entangled with federal immigration enforcemen available at Tracey Trautman June 22, 2017 Acting Director, Bureau of Justice Assistance Page 6 II. Philadelphia?s Policies Concerning Information Collection Do Not Con?ict with Section 1373. Philadelphia?s policy of directing City of?cials or employees to refrain from actively collecting immigration status information, unless necessary for their speci?c task or required by law (as memorialized in Section 2 of the Con?dentiality Order), is consistent with Section 1373. Section 1373 simply does not speak to af?rmative information collection. See 8 U.S.C. 1373 accord Exxon Mobile Corp. v. Allapattah Serve, Inc, 545 US. 546, 568 (2005) authoritative statement is the statutory Moreover, nothing in the provision?s legislative history suggests that Congress meant to impose such a requirement on states and localities. Rather, Congress was concerned with preserving open channels of voluntary communication among state, local, and federal of?cials, not with commandeering local of?cers to perform federal immigration functions. Courts adjudicating challenges to state and local policies brought under Section 1373, premised on an argument that the locality was failing either to affirmatively provide or to af?rmatively collect immigration status information, have consistently rejected such arguments. See, Doe v. City of New York, 860 841, 844 (N .Y. Sup. Ct. 2008) (holding that, ?while said provision [Section 1373] prohibits state and local governments from placing restrictions on the reporting of immigration status, it does not impose an af?rmative duty to make such reports?); Sturgeon v. Bratton, 95 Cal. Rptr. 3d 718, 731-732 (Cal. App. 2009) (Los Angeles Police Department?s policy of not initiating police action ?where the objective is to discover the alien status of a person? did not ?fatal[ly] conflict? with Section 1373); cf Bologna v. City Cnty. ofSo'n Francisco, 192 Cal. App. 4th 429, 433, 439-40 (Cal. Ct. App. 2011) (rejecting a negligence claim brought against the City of San Francisco on the premise that the City violated its ?mandatory duties? under Section 1373 by not reporting an undocumented individual to ICE after his prior arrests). Philadelphia Complies with 8 U.S.C. 1373 Because the City Shares Information About Criminal Suspects. Three features of the City?s policies and practices concerning criminal suspects in the City?s custody demonstrate why, and how, the City of Philadelphia complies with the mandate of Section 1373. First, both the Con?dentiality Order and Police Department Memorandum 06-01 (1) mandate the continued c00peration between local officers and federal authorities in combating crime, and (2) allow for the disclosure of immigration status information that an of?cer might inadvertently obtain when the individual is suspected of engaging in criminal activity. Again, Section 2C of the Con?dentiality Order provides: ?Law enforcement of?cers shall continue to Tracey Trautman June 22, 2017 Acting Director, Bureau of Justice Assistance Page 7 cooperate with state and federal authorities in investigating and apprehending individuals who are suspected of criminal activity.? Con?dentiality Order 2C. And Section 3B of the Order further instructs that disclosure of con?dential information is authorized when ?the individual to whom such information pertains is suspected by such of?cer or employee . . . of engaging in criminal activity (other than mere status as an undocumented alien).? In similar fashion, Part 3 of Memorandum 06-01 states that ?the Philadelphia Police Department will continue to COOperate with federal authorities in investigating and apprehending immigrants suspected of criminal activities,? and that ?[s]worn members of the Police Department who obtain information on immigrants suspected of criminal activity will comply with normal crime reporting and investigating procedures.? Memorandum 06?01 111] 3B-3C. And, like the Confidentiality Order, Memorandum 06?01 instructs that Philadelphia police of?cers may ?transmit [otherwise con?dential immigration-related information] to federal authorities . . . when . . . the immigrant is suspected of engaging in criminal activity.? Id. Taken together, these clauses of the Con?dentiality Order and Memorandum 06-01 illustrate that Philadelphia of?cers are instructed to c00perate with federal authorities in the enforcement of criminal lawmregardless of the suspect?s immigration status? and they are not prohibited from sharing immigration information regarding a criminal suspect. Second, Philadelphia?s use of the National Crime Information Center database, its sharing access with ICE to certain information in the City?s Preliminary Arraignment System database, and its use of the Automated Fingerprint Identi?cation System enable federal immigration authorities to access information, including an individual?s name, about persons stopped, detained, arrested, or convicted of a crime in the City. In fact, Philadelphia?s use of these databases provides federal authorities with information about people in Philadelphia?s custody even though Philadelphia likely would not know anything about that individual?s immigration status. 119E: Philadelphia police of?cers are trained to use the NCIC database as they engage in criminal law enforcement. For instance, Philadelphia police officers are trained to run an NCIC ?look-up? for all individuals who are subjected to ?investigative detention? by the police, for the purpose of determining if an outstanding warrant has been issued for the individual, whether in Philadelphia or another jurisdiction. If the of?cer is able to collect the person?s date of birth or license plate information, NCIC protocols mandate that that information will also be entered into NCIC. To the City?s awareness and 4 Philadelphia recently transitioned to the Multimodal Biometric Identi?cation System which is the next generation to AFIS. But because the FBI refers to the Integrated Automated Fingerprint Identification System we will use AFIS in this memorandum. Tracey Trautman I une 22, 2017 Acting Director, Bureau of Justice Assistance Page 8 understanding, the names searched by Philadelphia officers are recorded by the NCIC system, which the FBI maintains. ICE can freely use the NCIC database and make additional requests of the FBI to conduct searches or look-ups for individuals of interest to the agency, and to determine whether such persons were detained by authorities in Philadelphia. This regular use of NCIC is important because it puts the federal government on notice of any person in Philadelphia who becomes a criminal suspect, detainee, or arrestee, regardless of their background or immigration status. PARS: The ?Preliminary Arraignment System,? also knows as is a database maintained by the First Judicial District of the Philadelphia Police Department, and the Philadelphia District Attorney. The purpose of the database is to give information that the police collect upon an arrest directly to the District Attorney?s Of?ce. Based upon an end-user license agreement signed with ICE in 2008 and amended in 2010, ICE has access to criminal information in the PARS database, 129., to information about peOple suspected of criminal activity and entered into the system. ICE can use its access to look up a person of interest and determine whether the Philadelphia police have arrested that individual and/or whether that individual is in custody. ICE does not, however, have access to victim and witness information through PARS. The fact that ICE has agreed not to receive PARS victim and witness information is evidence that by sharing criminal suspect information, the City is satisfying both entities? mutual law enforcement purposes. As part of a routine and longstanding protocol, at the time a person in Philadelphia is arrested, his or her fingerprints are inputted into Philadelphia?s AFIS platform. Use of the AFIS database enables City law enforcement authorities to determine whether arrested individuals have existing criminal history records and as well as to confirm the identification of wanted suspects. AFIS feeds automatically into identi?cation bureau and then to the FBI. The FBI in turn has the capacity to run ?ngerprints against the Integrated Automated Fingerprint Identi?cation System national fingerprint and criminal history system maintained by the FBI?and the Automated Biometric Identi?cation System DHS-wide system for storing and processing biometric data for national security and border management purposes. The City does not have visibility into the sharing practices with other federal entities but, through the IAFIS system, the federal government has access to the ?ngerprint identities of individuals the City arrests and fingerprints. Given the above, Section 1373mwhen read properly??should be construed as entirely neutral towards local protocols like Philadelphia?s Con?dentiality Order or Memorandum 06-01. The concern of Section 1373 is that States and localities not enact policies that ?ivrohz'bz't? or ultimately ?restrict? governmental entities or officials from sending to or receiving from ICE immigration-status information. 8 U.S.C. 1373(a). Section 1373 does not speak to the manner Tracey Trautman June 22, 2017 Acting Director, Bureau of Justice Assistance Page 9 in which local of?cials exchange information with ICE. And that is what Philadelphia?s Con?dentiality Policy and Memorandum 06-01 do: They instruct police of?cers to ?safeguard? and avoid the unnecessary ?disclosure? of immigrants? con?dential information, see Con?dentiality Order Memorandum 01-06 1] 3A, while, at the same time, instructing the of?cers to cOOperate with federal authorities in investigating crimes, exchange pertinent information about criminal suSpects, and adhere to ?normal crime reporting and investigating procedures.? Con?dentiality Order 2C Memorandum 01-06 3B. In operation, this results in information-?sharing with the federal government about criminal suspects or detainees in the City?s custody, and in the protection of con?dential information about individuals who are of no criminal concern. That is entirely consistent with Section 1373. Third, the City complies with Section 1373 because its of?cial policies concerning immigration-status information also contain savings clauses that assume the continued operation of other relevant laws, such as Section 1373 to the extent it is determined to be applicable and enforceable. The Con?dentiality Order has two provisions that function as ?savings clauses,? which permit both inquiry into or disclosure of immigration status if ?required by law.? See Con?dentiality Order Memorandum 06-01 has a similar savings clause at Part 3A0): ?[P]olice personnel will transmit such [con?dential] information to federal immigration authorities only when required by law.? When the plain text of a law or policy contains a savings clause, that text should control. Chamber ofCommerce of US. v. Whiting, 563 US. 582, 599 (2011) (the legislature?s ?authoritative statement is the statutory text? and the ?plain text of . . . [the] savings clause? controls). Here, the plain text of Philadelphia?s Con?dentiality Order and Memorandum 06-01 permit City employees to obtain and transmit immigration status information when ?required by law??including Section 1373 to the extent it is determined to be applicable and enforceable?while otherwise directing employees to protect individuals? con?dential information from exposure to third parties. IV. Philadelphia?s Policies Concerning Witnesses, Victims, and Persons Seeking City Services Do Not Con?ict with Section 1373. Philadelphia?s policies af?rming the con?dentiality of immigration status information of witnesses and victims of crimes, as well as of individuals who seek public bene?ts, are also consistent with Section 1373. First, as a practical matter, given the City?s lawful policy against the af?rmative collection of such information, upon which Section 1373 has no bearing, there will be few, if any, cases of Philadelphia of?cers or employees even being in a position to ?transmit? or ?disclose? this sort of information to federal authorities about witnesses, victims, or persons seeking City services. See Con?dentiality Order 1) (?No City of?cer or employee . . . shall inquire about a person?s immigration status? unless it is ?legally required for the determination of program, service or bene?t id. (law enforcement of?cers ?shall not . . . inquire about the immigration status of crime victims, witnesses, or others Tracey Trautman .1 une 22, 2017 Acting Director, Bureau of Justice Assistance Pagel9 in which local of?cials exchange information with ICE. And that is what Philadelphia?s Confidentiality Policy and Memorandum 06-01 do: They instruct police officers to ?safeguard? and avoid the unnecessary ?disclosure? of immigrants? con?dential information, see Confidentiality Order Memorandum 01-06 1] 3A, while, at the same time, instructing the of?cers to cooperate with federal authorities in investigating crimes, exchange pertinent information about criminal suspects, and adhere to ?normal crime reporting and investigating procedures.? Con?dentiality Order 2C Memorandum 01-06 111] 3B. In Operation, this results in information-sharing with the federal government about criminal suspects or detainees in the City?s custody, and in the protection of con?dential information about individuals who are of no criminal concern. That is entirely consistent with Section 1373. Third, the City complies with Section 1373 because its of?cial policies concerning immigration-?status information also contain savings clauses that assume the continued operation of other relevant laws, such as Section 1373 to the extent it is determined to be applicable and enforceable. The Con?dentiality Order has two provisions that ?mction as ?savings clauses,? which permit both inquiry into or disclosure of immigration status if ?required by law.? See Confidentiality Order Memorandum 06-01 has a similar savings clause at Part 3A0): ?[P]olice personnel will transmit such [con?dential] information to federal immigration authorities only when required by few. When the plain text of a law or policy contains a savings clause, that text should control. Chamber of Commerce of US. v. Whiting, 563 US. 582, 599 (2011) (the legislature?s ?authoritative statement is the statutory text? and the ?plain text of . . . [the] savings clause? controls). Here, the plain text of Philadelphia?s Con?dentiality Order and Memorandum 06-01 permit City employees to obtain and transmit immigration status information when ?required by Section 1373 to the extent it is determined to be applicable and enforceable?while otherwise directing employees to protect individuals? con?dential information from eXposure to third parties. IV. Philadelphia?s Policies Concerning Witnesses, Victims, and Persons Seeking City Services Do Not Con?ict with Section 1373. Philadelphia?s policies affirming the con?dentiality of immigration status information of witnesses and victims of crimes, as well as of individuals who seek public benefits, are also consistent with Section 1373. First, as a practical matter, given the City?s lawful policy against the af?rmative collection of such information, upon which Section 1373 has no bearing, there will be few, if any, cases of Philadelphia of?cers or employees even being in a position to ?transmit? or ?disclose? this sort of information to federal authorities about witnesses, victims, or persons seeking City services. See Con?dentiality Order (?No City officer or employee . . . shall inquire about a person?s immigration status? unless it is ?legally required for the determination of program, service or bene?t id. 28(3) (law enforcement of?cers ?shall not . . . inquire about the immigration status of crime victims, witnesses, or others Tracey Trautman June 22, 2017 Acting Director, Bureau of Justice Assistance a I 10 who call or approach the police seeking help?). Thus, there will be very few-?if any-minstances in which these nondisclosure provisions are triggered. Second, Section 1373 could not be construed to require the City to disclose information about persons seeking services, witnesses, and victims (whether volunteered by the individual or collected inadvertently) because that would pose serious constitutional problems. Not only would such a construction con?ict with anti-commandeering principles, it would also undermine the ability of the City to administer its core police and porens patriot: powers under the Constitution. And even as a theoretical delegate of Congress?s spending power, the Department of Justice has no authority to attach such a condition to the grants for which this certi?cation is being required. The Constitution preserves the fundamental role of the States in our democracy as the entities that ?enact legislation for the public good?what [the Supreme Court] ha[s] often called a ?police power.? Bond v. United States, 134 S. Ct. 2077, 2086 (2014); see also id. (?The Federal Government, by contrast, has no such The States are reserved the power to create and enforce the criminal law, as well as to protect the health and welfare of their citizens by the means they deem appropriate. See Gonzales v. Oregon, 546 US. 243, 270 (2006) structure and limitations of federalism . . . allow the States great latitude under their police powers to legislate as to the protection of the lives, limbs, health, comfmt, and quiet of all persons?); Alfred L. Snapp Son, Inc. v. Puerto Rico, ex rel, Barez, 45 8 US. 592, 607 (1982) State has a quasi-sovereign interest in the health and well?being?both physical and economic?of its residents in Accordingly, ?when construing federal statutes that touc[h] on . . . areas of traditional state responsibility,? the Supreme Court will ?appl[y] the background principle? that ?it is incumbent upon the federal courts to be certain of Congress? intent before ?nding that federal law overrides the usual constitutional balance of federal and state powers.? Bond, 134 S. Ct. at 2089 (quotation marks and citations omitted); see also United States v. Morrison, 529 US. 598, 615 (2000) (construing Congress? power under the Commerce Clause to enact a gender?violence private remedy against the backdrop of ?the Constitution?s distinction between national and local authority? and the States? ?traditional? authority to ?regulate . . . crime?). Here, that ?background principle? requires a construction of Section 1373 that excludes compelled information-sharing about witnesses and victims of crimes and law-abiding persons seeking City services. A federal command. that States and localities disclose information about such persons to ICE-"even if the State or locality concludes that doing so would chill law enforcement and undermine community health and safety?wwould ?intrude[] on the police power of the States? and compromise their ability to ensure the health and safety of their pOpulations. Bond, 134 S. Ct. at 2090. At the very least, courts would need a ?clear statement? from Congress that it meant to ?radically readjust the balance of state and national authority? in such a Tracey Trautman June 22, 2017 Acting Director, Bureau of Justice Assistance a 11 way before adopting that reading. Id. (citations omitted). There is no such clear statement here, either in the text of Section 1373 or in its legislative history. Moreover, for Congress to try to use its Spending Clause power to abrogate these federalism principles in the case of the JAG grant (assuming Congress even did so, which the City contests, see Part VI, in?'a) would be unconstitutional in its own right. Congress surely can use federal grants to try to induce States and localities to do things that it could not directly compel: it can encourage States and localities to raise the drinking age, South Dakota v. Dole, 483 US. 203, 206 (1987), or it can require that state officials whose employment is financed with federal funds adhere to the Hatch Act, Oklahoma v. Civil Service Comm 330 US. 127 (1947). But it is a bedrock principle that Congress cannot make a federal grant contingent on an activity that lacks a ?relationship? or subject matter connection to the purpose of the federal spending. New York v. United States, 505 US. 144, 167 (1992) (the attached ?conditions must . . . bear some relationship to the purpose of the federal spending?). As the Court put it in Dole: The ?conditions on federal grants? have to be ?reasonably calculated to address t11[e] particular . . . purpose for which the funds are expended.? South Carolina v. Dole, 483 US. 203, 207 (1987); see, Cutter v. Wilkinson, 423 F.3d 570, 586 (4th Cir. 2005) (conditions imposed by the Religious Land Use and Institutionalized Persons Act, requiring States that receive federal funds for prisons to reSpect inmates? free exercise rights, were ?reasonably calculated to address the federal government?s interest in the rehabilitation of state prisoners?); Kansas v. United States, 214 F.3d 1196, 1199-2000 (10th Cir. 2000) (condition imposed by TANF, requiring States that receive funding to operate ?child support enforcement programs,? was ?clearly related? to the TANF pro gram?s goal of ?provid[ing] financial support for low-income families?). Here, had Congress sought to use its Spending Clause power to make the JAG grant conditional on localities sharing information with ICE about witnesses, victims, and law?abiding persons who apply for City services, Congress would have had to demonstrate some connection between that compelled activity and the purpose of federal spending. In other words, it would have had to show that the ?condition? being imposed, of compelled information-sharing about these speci?c individuals, was ?reasonably calculated to address . . . [the] purpose for which the funds are expended,? which is to strengthen cities? criminal justice systems. See 42 U.S.C. 3752(a)(6) (authorizing JAG grants to be given to improve the ?administration of the criminal justice system? in the States). That is precisely the problem: JAG grants were enacted to support criminal justice programming and make cities safer, and compelled information-sharing about victims, witnesses, and law-abiding persons is a policy that many cities, including Philadelphia, have determined undermines public safety. No one?not Congress, the Justice Department, or any other entity?has suggested otherwise. The result would be that Congress was using its Spending Clause power to induce cities like Philadelphia to sacrifice the health, wellness, and safety of its own community, through a grant program that was purportedly enacted to promote those very outcomes. That clearly runs afoul of Dole. Tracey Trautnian June 22, 2017 Acting Director, Bureau of Justice Assistance a 12 V. Philadelphia?s Detainer Policies Are Not Relevant to Section 1373. Philadelphia does not violate Section 1373 by declining to detain individuals pursuant to an ICE detainer request unless the request is accompanied by a judicial warrant. Philadelphia?s policy on detainer requests is memorialized in Mayor James F. Kenney?s Executive Order No. 5- 16, entitled ?Policy Regarding US. Immigration and Customs Enforcement Agency Detainer Requests? and issued on January 4, 2016. Philadelphia?s detainer policy is not relevant to the present certi?cation analysis because Section 1373 says nothing about detainer requests or detention at all. It speaks only to prohibitions and restrictions on the sending, receiving, and exchanging of ?information? regarding citizenship or immigration status with the federal government. 8 U.S.C. Nor does the legislative history of Section 1373 indicate that Congress intended the statute to require State and local governments to hold people in detention upon a simple request from ICE. Indeed, recent statements and positions by the Department of Justice and the Trump Administration confirm that Section 1373 does not cover detention requests currently. 011 May 22, 2017, the Administration proposed a budget to Congress that included language changing Section 1373 to require that local jurisdictions hold undocumented persons in jail for up to 48 hours upon receipt of an ICE detainer request, and to provide that, if jurisdictions do not comply with such ICE requests, they could lose Homeland Security and Justice Department grants. The Department of ustice?s budget proposal table also states that the Department is thereby ?requesting an amendment to 8 U.S.C. 1373 to . . . expand the scope to prevent State and local government officials from prohibiting or restrictng any government entity or of?cial from complying with a lawful civil immigration detainer request.? Dep?t of Justice, Summary of General Provisions contained in the FY2018 President?s Budget, note 7 (emphasis added).5 After the budget announcement, a spokesperson from the Department of Justice con?rmed that the Memorandum sent by Attorney General Sessions to several localities one day earlier, on May 21, 2017, and insisting that they comply with Section 1373 so as to not be deemed sanctuary jurisdictions, ?reflects the current law, which as now written doesn?t relate to detainer requests.? L. Meckler, Trump Administration Proposes Tougher Line on ?Sancl'nary Cities Over Det'az'ner Requests, Fox Business (May 23, 2017).6 See 6 Philadelphia also reserves the argument that reading Section 1373 or any other federal statute or regulation to impose a duty on States and municipalities to detain people at request would raise serious concerns under the Tenth Amendment. See Galarza v. 745 F.3d 634 (3d Cir. 2014); Cnty. ofSam?a Clara v. Trump, No. 17-cv-00485, 2017 WL 1459081, at *4 (ND. Cal. Apr. 25, 2017); Mercado v. Dallas Cnty., Texas, No. 15-cv-3481, 2017 WL 169102, at *9 (ND. Tex. Jan. 17, 2017); Flores v. City oanldwin Park, 2015 WL 756877, at *4 (CD. Cal. Feb. 23, 2015); anaz?ero v. Haynes, 2014 WL 6387560, at *2 (W.D.N.C. Nov. 14, Tracey Trautman June 22, 2017 Acting Director, Bureau of Justice Assistance a 13 VI. The Department of Justice?s Insistence that Localities Certify Compliance with Section 1373 is Itself Unlawful. Although Philadelphia submits the present certi?cation in good faith, it reserves the argument that this certi?cation requirement itself, as well as the underlying attachment of the condition of compliance with Section 1373 to criminal law enforcement grants, constitutes unlawful agency action for several reasons. See 5 U.S.C. (agency action is ?Unlawful? when it is ?not in accordance with law,? ?contrary to constitutional right, power, privilege or immunity,? or ?arbitrary, capricious [or] an abuse of discretion?). First, Philadelphia reserves the argument that the Department?s decision to mandate that localities certify compliance in order to apply for new JAG grants is ?not in accordance with law.? Id. When Congress created the JAG grant program, appropriated funds, and authorized the Department of Justice to distribute the grants, its purpose was to strengthen cities and States? criminal justice systems. Localities can apply for funds to support a range of local programmingmsuch as ?law enforcement programs, prosecution and court programs, prevention and education programs, corrections and community corrections programs, drug treatment and enforcement programs,? and ?crime victim and witness programs.? 42 U.S.C. 3751(a)(l). The authorizing statute for the JAG grant program provides that request a grant under this part,? an applicant shall include a ?certification, made in a form acceptable to the Attorney General . . . that . . . the applicant will comply with all provisions of this part and other applicable Federal lat-vs.? Id. 3752(a)(5)(D) (emphasis added). In turn, the statute authorizes the ?Attorney General [to] issue rules to carry out this part.? Id. 3754. There is no suggestion that Section 1373, which has nothing to do with the criminal justice system, is or should be considered an ?applicable Federal law.? Nowhere did Congress indicate in the underlying statute that it intended for the receipt of grants administered by the Justice Department to be conditioned on jurisdictions? compliance with Section 1373, a statute having to do with immigration policy, and administered by the Department ofHomeZand Security. Given the lack of any substantive connection between Section 1373 and the programs that JAG supports, the Attorney General exceeded his authority when determining that statute to be ?applicable.? Second, making the receipt of JAG grants contingent on compliance with Section 1373 is ?not in accordance with [federal] law? because, for reasons similar to why it is not an ?applicable Federal law,? it would violate the Constitution?s Spending Clause. Again, the Supreme Court?s Spending Clause jurisprudence establishes that Congress cannot make a federal grant contingent on an activity that lacks a rational connection to the purpose of the federal spending. See New 2014); Moreno v. Napolitano, 2014 WL 4911938, at *5 (ND. Ill. Sept. 30, 2014); Miranda- Olivares v. Claekamas Cnty., No. 12-cv~02317, 2014 WL 1414305, at *6 (D. Or. Apr. 11, 2014). Tracey Trautman June 22, 2017 Acting Director, Bureau of .lustice Assistance a 14 York, 505 US. at 167 (the attached ?conditions must . . . bear some relationship to the purpose of the federal spending?); Dole, 483 US. at 207 (the condition imposed on a federal grant must be ?reasonably calculated? to achieve the underlying purpose of the grant). Here, there is no subject matter linkage or ?discernible relationship? between JAG grants, which seek to support localities? criminal justice systems, and Section 1373, which deals with removing theoretical barriers to the sharing of immigration?status information with ICE. Civil immigration enforcement and criminal law enforcement are two different things. See generally Arizona v. United States, 132 S. Ct. 2492, 2505 (2012) (?As a general rule, it is not a crime for a removable alien to remain present in the United States?). Policies that effectuate civil immigration enforcement are not coterminous with policies that ensure a strong criminal justice system. Numerous cities? like Philadelphiamhave determined that it promotes the public safety and enhances the enforcement of criminal law when witnesses and victims, irrespective of their immigration status, feel safe reporting crimes and participating (where appropriate) in criminal proceedings. Congress nowhere overrode that judgment when it decided to disburse JAG grants to support localities? criminal justice systems, nor could it have. Yet another reason that the Department?s imposition of this new Section 1373 certification requirement on localities violates the APA is that it is arbitrary and capricious. The agency?s new position re?ects a departure from its prior practice of granting Department of Justice funds free from a contingency of compliance with that statute. And, problematically, the agency changed its longstanding position without sufficient reason or explanation. See Enema Motorcars, LLC v. Navarro, 579 U.S. Slip. Op. 9 (2016) (?Agencies are free to change their existing policies as long as they provide a reasoned explanation for the change. . . . [T]he agency must at least ?diSplay awareness that it is changing position? and ?show that there are good reasons for the new policy.? In explaining its changed position, the agency must also be cognizant that longstanding policies may have ?engendered serious reliance interests that must be taken into account.? (citations omitted)); National Cable Telecommunications Assn. 12. Brand Internet Serra, 545 US. 967, 981 (2005) (an ?unexplained inconsistency? in an agency?s policy is ?a reason for holding an interpretation to be an arbitrary and capricious change from agency practice?). ?[S]ince 1996, the United States government has never sought to enforce [Section 1373] against a state or local government,? and neither the DOJ nor any other agency has made compliance with Section 1373 a requirement of receiving a federal discretionary grant. E. McCormick, Federai Anti?Sanctuary Law: A Failed Approach to Immigration Enforcement and a Poor Substitute for Real Reform, 20 Lewis Clark L. Rev. 165, 170 (2016). The report by the Office of Inspector General in May 2016 is an insufficient explanation for the Department?s change in policy because it did not explain why any DOJ grant funding?which support localities? criminal justice systems?should be contingent on the specific contours of a locality?s policies on sharing immigration-status information with ICE. Speci?cally, and importantly, the Report did not show that policies which protect the con?dentiality of individuals? immigration status information result in any greater incidence of Tracey Trautman June 22, 2017 Acting Director, Bureau of Justice Assistance 1" a 1.5 crime. Indeed, Philadelphia, like most other major US. cities that have considered the issue, determined that policies which delicately limit information-sharing as to witnesses, Victims, and persons seeking City services enhance and support its crime?fighting efforts. a Philadelphia respectfully submits the above legal analysis and certi?cation that the City?s policies, by their text and operation, comply with 8 U.S.C. 1373. Sincerely, Peal/v Sozi Pedro Tulante City Solicitor Exhibit A EXECUTIVE ORDER 0. 8-09 POLICY CONCERNING ACCESS OF TO CITY SERVICES WHEREAS, immigrants make signi?cant contributions to every facet of The City of Philadelphia?s economic, educational and cultural life; WHEREAS, immigrants are critical to the economic, cultural and social fabric of not only The City of Philadelphia, but also the greater Philadelphia region; WHEREAS, the City?s policy is to promote the utilization of its services by all City residents and visitors who are entitled to and in need of them, including immigrants; WHEREAS, all individuals should know that they may seek and obtain the assistance of City departments and agencies regardless of their personal states, without negative consequences to their personal lives; WHEREAS, meeting the needs of the City?s immigrant population is important to maintaining public trust and con?dence in City government; and WHEREAS, the City?s ability to obtain pertinent information, which may be essential to the performance of governmental functions, is sometimes made dif?cult or even impossible if some expectation of con?dentiality is not preserved; NOW, THEREFORE, I, Michael A. Nutter, Mayor of The City of Philadelphia, by the powers vested in me by the Philadelphia Home Rule Charter, do hereby order as follows: Section 1. Access to City Services. All City services, including but not limited to the following listed services, shall be made available to all City of Philadelphia residents, consistent with applicable law, regardless of the person?s citizenship or legal immigration status: 0 Police and Fire services; 0 Medical services, such as emergency medical services, general medical care at Community Health Centers and immunization, testing and treatment with respect to communicable diseases; Mental health services; 0 Children?s protective services; and 0 Access to City facilities, such as libraries and recreation centers. Section 2. Inquiries Regarding Immigration Status A. No City of?cer or employee, other than law enforcement of?cers, shall inquire about a person?s inunigration status unless: (1) documentation of such person?s status is legally required for the determination of program, service or bene?t eligibility or the provision of services; or 2) such of?cer or em loyee is re uired law to in uire about such . . 3? cl person?s immigration status. B. Law enforcement of?cers shall not: (1) step, question, arrest or detain an individual solely because of the individual?s ethnicity, national origin, or perceived immigration status; (2) inquire about a person?s immigration status, unless the status itself is a necessary predicate of a crime the of?cer is investigating or unless the status is relevant to identi?cation of a person who is suspected of a crime (other than mere status as an undocumented alien); (3) inquire about the immigration status of crime victims, witnesses, or others who call or approach the police seeking help; or (4) inquire regarding immigration status for the purpose of enforcing immigration laws. C. Law enforcement officers shall continue to cooperate with state and federal authorities in investigating and apprehending individuals who are suSpected of criminal activity. Section 3. Con?dentiality of Information A. As used herein, ?confidential information? means any information obtained and maintained by a City agency relating to an individual?s immigration status. B. No City of?cer or employee shall disclose con?dential information unless: (I) such disclosure has been authorized in writing by the individual to whom such information pertains, in a language that he or she understands or, if such individual is a minor or is otherwise not legally competent, by such individual?s parent or legal guardian; (2) such disclosure is required by law; or (3) the individual to whom such information pertains is suspected by such of?cer or employee or such officer?s er employee?s agency of engaging in criminal activity (other than mere status as an undocumented alien). Section 4. EFFECTIVE DATE This Order shall take effect immediately. d/b/aa/? 7 fJ/a DATE MICEAEL XNUTTER, MAYOR Exhibit mmemnwm ace: y, mm sumscr: Potter nseannme B. A. The purpose of this memorandum is to advise all Philadelphia Police Department personnel of the policy concerning the treatment of legal and illegal immigrants. The de?nition of ?immigrant? as it applies to this memorandum is as follows: ?Any person who is not a citizen or a national of the United States?. ES. PGLECY A. While the City has various services available to immigrants, few take advantage of These services because they fear that any contact with these agencies may bring their immigration status to the attention of the federal authorities. B. All immigrants should be encouraged to utilize these City services without fear of any reprisals because the city has no obligation to report any illegal immigrants to the federal government as long as they are law abiding. The Police Department will preserve the con?dentiality of all information regarding law abiding immigrants to the maximum extent permitted by law. C. Additionally, sworn members shall not arbitrarily exclude immigrants from eligibility for services that are available to all. Ell. A. In order to safeguard the confidentiality of information regarding an immigrant, police personnel will transmit such information to federal immigration authorities only when: 1. Required by law, or 2. The immigrant requests, in writing, information be provided, to verify his or her immigration status, 3. The immigrant is suspected of engaging in criminal activity, including attempts to obtain public assistance benefits through the use of fraudulent documents. B. Sworn members of the Police Department who obtain information on immigrants suspected of criminal activity will comply with normal crime reporting and investigating procedures (refer to Directive 11, ?Aliens/Military Personnel in Police Custody and Requests for Political Asylum? dated C. The Philadelphia Police Department will continue to cooperate with federal authorities in investigating and apprehending immigrants suspected of criminal activities. However, immigrants who are victims of crimes will not have their status as an immigrant transmitted in any manner. SQEIM E. imam? ?amm?ss?snss