United States of America v. State of California et al

Filing 110

MOTION for LEAVE to FILE AMICI CURIAE BRIEF by City of New York (and associated parties). Attorney Holtzman, Jonathan Victor added. Motion Hearing set for 6/20/2018 at 10:00 AM in Courtroom 6 (JAM) before District Judge John A. Mendez. (Attachments: # 1 Opposition, # 2 Proposed Order)(Holtzman, Jonathan) Modified on 5/21/2018 (Benson, A.).

JONATHAN V. HOLTZMAN (SBN 99795) ([e-mail])*
LINDA M. ROSS (SBN 133874) ([e-mail])*
RENNE PUBLIC LAW GROUP®
350 Sansome Street, Suite 300
San Francisco, CA 94104
Telephone: [phone]
Facsimile: [phone]
ZACHARY W. CARTER
Corporation Counsel
of the City of New York
RICHARD DEARING ([e-mail])
AARON BLOOM ([e-mail])
NOAH KAZIS ([e-mail])
JOHN MOORE ([e-mail])
New York City Law Department
100 Church Street
New York, NY 10007
Telephone: [phone]
Facsimile: [phone]
* Designated counsel for service
Counsel for Proposed Amici Curiae
City of New York, 20 local governments, and the United States Conference of Mayors
UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF CALIFORNIA
UNITED STATES OF AMERICA,
Plaintiff,
v.
STATE OF CALIFORNIA, et al.,
Defendants.

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Case No. 2:18-cv-00490-JAM-KJN
BRIEF OF AMICI CURIAE
THE CITY OF NEW YORK, 20 LOCAL
GOVERNMENTS, AND THE UNITED
STATES CONFERENCE OF MAYORS
IN OPPOSITION TO PLAINTIFF’S
PRELIMINARY INJUNCTION MOTION
AND IN SUPPORT OF DEFENDANTS’
MOTION TO DISMISS
Hearing Date: June 20, 2018
Hearing Time: 10:00 a.m.
Location:
Courtroom 6
Judge:

AMICI BRIEF OF LOCAL GOVERNMENTS
IN OPPOSITION TO PRELIM. INJ. AND IN SUPPORT OF MOTION TO DISMISS

Hon. John A. Mendez

No. 2:18-cv-00490-JAM-KJN

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TABLE OF CONTENTS

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TABLE OF CONTENTS ............................................................................................................... i
TABLE OF AUTHORITIES ........................................................................................................ ii

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STATEMENT OF INTEREST AND SUMMARY OF ARGUMENT........................................ 1

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ARGUMENT ................................................................................................................................ 5

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POLICIES THAT PROTECT SENSITIVE INFORMATION ABOUT IMMIGRANT
POPULATIONS ARE ESSENTIAL TO LOCAL GOVERNMENTS’ ABILITY TO
EFFECTIVELY DELIVER SERVICES .................................................................................. 5

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A.The fear of immigration enforcement can discourage residents from engaging with
essential local government services, including police, schools, and medical care. .......... 5

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B. Local policies to limit information sharing with federal immigration authorities promote
trust in local governments, which is necessary to protect public safety and health.......... 9

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CONCLUSION ........................................................................................................................... 13

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TABLE OF AUTHORITIES
Page(s)

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3

Cases

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Arizona v. United States,
567 U.S. 387 (2012) ................................................................................................................ 8

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15
16
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City of Chicago v. Sessions,
No. 17-2991, 2018 U.S. App. LEXIS 9862 (7th Cir. Apr. 19, 2018) ............................... 6, 10
City of Philadelphia v. Sessions,
280 F. Supp. 3d 579 (E.D. Pa. 2017) .................................................................................... 11
County of Santa Clara v. Trump,
275 F. Supp. 3d 1196 (N.D. Cal. 2017) .................................................................................. 6
Hispanic Interest Coalition v. Governor of Ala.,
691 F.3d 1236 (11th Cir. 2012) .............................................................................................. 8
LULAC v. Wilson,
908 F.Supp. 755 (C.D. Cal. 1995) .......................................................................................... 8
Murphy v. NCAA,
Nos. 16-476, 16-477, 2018 U.S. LEXIS 2805 (May 14, 2018) .............................................. 2
Printz v. United States,
521 U.S. 898 (1997) ................................................................................................................ 2

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Riegel v. Medtronic, Inc.,
529 U.S. 598 (2008) ................................................................................................................ 3

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Statutes. Regulations, and Executive Orders

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8 U.S.C. § 1373(a) ........................................................................................................................ 2

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13 U.S.C. § 9(a) .......................................................................................................................... 12

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26 U.S.C. § 6103 ......................................................................................................................... 12

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Cal. Gov’t Code § 7284.6(a)(1)(C) ............................................................................................... 2
Cal. Gov’t Code § 7284.6(a)(1)(D)............................................................................................... 1
Chicago Mun. Code § 2-173 ......................................................................................................... 4

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Cook Cty. Ill., Mun. Code § 46-37(b)........................................................................................... 4
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Denver Exec. Order 142 (2017) .................................................................................................... 4
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Denver Rev. Mun. Code §§ 28-250 to 28-253.............................................................................. 4

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Exec. Order No. 13,768, 82 Fed. Reg. 8799 (Jan. 25, 2017) ........................................................ 6

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Madison Res. 17-00125 ................................................................................................................ 4

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Minneapolis Code of Ordinances Ch. 19 ...................................................................................... 4

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6
7

N.Y.C. Admin. Code § 9-131(h)(1) .............................................................................................. 4
N.Y.C. Charter § 8(g) ................................................................................................................... 4
N.Y.C. Mayoral Exec. Order 41 (2003)........................................................................................ 4

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2017 Or. Laws Ch. 724 ................................................................................................................. 4
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10
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Or. Rev. Stat. § 181A.820 ............................................................................................................. 4
Phila. Exec. Order 5-16 ................................................................................................................. 4
Phila. Exec. Order 8-09 ................................................................................................................. 4

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Rochester Res. No. 2017-5 ........................................................................................................... 4

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Tukwila Res. 1900 ........................................................................................................................ 4

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Other Authorities

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Americas Society/Council of the Americas & The Fiscal Policy Institute,
Bringing Vitality to Main Street: How Immigrant Small Businesses Help
Local Economies Grow, available at: http://www.ascoa.org/sites/default/files/ImmigrantBusinessReport.pdf ....................................................... 3

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Brooke A. Lewis, HPD Chief Announces Decrease in Hispanics Reporting Rape
and Violent Crimes Compared to Last Year, Houston Chron. (Apr. 6, 2017),
https://bit.ly/2wvUQVV.......................................................................................................... 7
Cara Buckley, New York City Police Seek Trust Among Immigrants, N.Y. Times
(May 31, 2007)...................................................................................................................... 10
Cassi Feldman, Despite Trump immigration crackdown, city tells students and
families: ‘We stand with you’, Chalkbeat (Jan. 30, 2017),
https://bit.ly/2rxttWz ............................................................................................................. 10
CBS New York, NYPD Memo Emphasizes Commitment to Immigrants (Feb. 22,
2017), https://cbsloc.al/2L0eD2Y ......................................................................................... 10

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Christopher Smart, Fearful of deportation, unauthorized immigrants in Salt
Lake City are not reporting crime, police chief says, The Salt Lake Trib.,
Jan. 9, 2018, https://bit.ly/2wDRlx1 ....................................................................................... 7
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Dara Lind, Fear Itself: Donald Trump’s Real Immigration Policy, Vox (Sep. 17,
2017), https://bit.ly/2h3IcGo................................................................................................... 6
Donald G. McNeil, Jr., Trump, Tell Us About Your Flu Shot, N.Y. Times, Feb.
9, 2018, https://nyti.ms/2KRM8EI.......................................................................................... 7
Emily Baumgaertner, Spooked by Trump Proposals, Immigrants Abandon
Public Nutrition Services, N.Y. Times (Mar. 6, 2018),
https://nyti.ms/2HeoMqg .................................................................................................... 8, 9

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Emily Bazar, Some Immigrants, Fearful of Political Climate, Shy Away from
Medi-Cal, California Healthline, Feb. 16, 2017, https://bit.ly/2KPyQbK .............................. 7
Feds: Alabama immigration law caused spike in Hispanic student absences,
CNN (May 4, 2012), https://cnn.it/2IbV0U3 .......................................................................... 8
Int’l Ass’n of Chiefs of Police, Enforcing Immigration Law: The Role of State,
Tribal and Local Law Enforcement, at 5, available at http://bit.ly/2ksLZxb ....................... 11

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Jennifer Medina, Too Scared to Report Sexual Abuse. The Fear: Deportation.,
N.Y. Times (Apr. 30, 2017), https://nyti.ms/2pOOe0Q ......................................................... 7
Kari White, et al., Impact of Alabama’s Immigration Law on Access to Health
Care Among Latina Immigrants and Children: Implications for National
Reform, 104 Am. J. Pub. Health 397 (2014), available at
https://bit.ly/2G2U3eS ............................................................................................................ 8
Kathleen Roche, et al., Impacts of Immigration Actions and News and the
Psychological Distress of U.S. Latino Parents Raising Adolescents, J.
Adolescent Health (forthcoming 2018), available at https://bit.ly/2FAbbrT ......................... 5
Kelli Kennedy, Immigration Concerns Drive Legal Immigrants Away from
Public Health Care, Christian Sci. Monitor (Jan. 22, 2018),
https://bit.ly/2IxTi2z ............................................................................................................... 7
Major Cities Chiefs Ass’n, Major Cities Chiefs Association Immigration
Position (Oct. 2011), accessed May 4, 2018, https://bit.ly/2IoRh91 .................................... 11
Mayor’s Office of Immigrant Affairs, State of Our Immigrant City, March 2018,
at 6, available at https://on.nyc.gov/2Iu3Lw6 ......................................................................... 3
Monica Disare, Could fear of Trump’s immigration policies keep New York City
students out of school?, Chalkbeat (Mar. 1, 2017), https://bit.ly/2rxW5iu ............................ 9
N.Y.C. Dep’t of City Planning, The Newest New Yorkers, 2013, available at
http://on.nyc.gov/2drcFH6 ...................................................................................................... 3
N.Y.C. Health + Hospitals, Seek Care Without Fear, https://bit.ly/2G4otx1 (last
visited May 7, 2018) ............................................................................................................. 10

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3
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Nicole Rodriguez, Trump’s Immigration Crackdown Creating a Public Health
Crisis Among Children, Analysts Say, Newsweek, Jan. 4, 2018,
https://bit.ly/2E6M93w ........................................................................................................... 7
Nik Theodore, Insecure Communities: Latino Perceptions of Police Involvement
in Immigration Enforcement, May 2013, available at https://bit.ly/1Adp6RD.................. 5, 6
The President’s Task Force on 21st Century Policing, Final Report (May 2015),
at iii, 1, available at https://bit.ly/2KPn5lP ........................................................................... 12

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8
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Russell B. Toomey, et al., Impact of Arizona’s SB 1070 Immigration Law on
Utilization of Health Care and Public Assistance Among Mexican-Origin
Adolescent Mothers and Their Mother Figures, 104 Am. J. Pub. Health S28
(2014), available at https://bit.ly/2IbAx1w ............................................................................ 8
Tom Dart, Fearing deportation, undocumented immigrants wary of reporting
crimes, The Guardian, Mar. 23, 2017, https://bit.ly/2nMHVd7 ............................................. 7
Tom K. Wong, Center for American Progress, The Effects of Sanctuary Policies
on Crime and the Economy (Jan. 26, 2017), available at
http://ampr.gs/2kxOcHX....................................................................................................... 13

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STATEMENT OF INTEREST AND SUMMARY OF ARGUMENT

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The undersigned cities and counties outside California—representing nearly 20 million

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residents from across the country—and the United States Conference of Mayors submit this

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amici curiae brief to demonstrate and defend the legitimate and powerful interest of state and

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local governments in maintaining policies that, like the challenged provisions of the California

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Values Act, limit the information we share with the federal government. While amici support

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the entirety of California’s request for dismissal of the complaint, this brief focuses particularly

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on the challenged information-sharing policies because, as local governments, we have decades

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of experience with similar policies safeguarding sensitive information. Our experience refutes

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the Department of Justice’s repeated suggestion, in arguing for federal preemption, that such

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policies are nothing more than an attempt to obstruct federal immigration enforcement. Quite

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the contrary: amici have found that creating appropriate firewalls between local public service

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providers and federal immigration enforcement is critical to building the trust with our

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residents that is required to effectively protect the safety and health of all.

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Local governments neither set immigration policy, nor determine who enters this

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country. Our core jobs are to effectively police our neighborhoods—whoever lives in them—to

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teach our children—whoever their parents might be—and to provide all the other essential

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public services that keep our cities and counties running. And we know that residents’

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willingness to report crime and assist the police, complain about unsafe conditions, send their

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children to school, seek medical treatment, or take advantage of other public services depends

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on our ability to protect the confidentiality of their personal information.

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The portions of the California Values Act that the DOJ seeks to enjoin create a shield

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separating the activities of the state government from federal immigration enforcement. The

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DOJ challenges, for instance, the statute’s prohibition against sharing an individual’s personal

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information, including home and work addresses, for immigration enforcement purposes unless

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that information is publicly available. Cal. Gov’t Code § 7284.6(a)(1)(D); Compl. at ¶ 65. This

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is quintessentially a provision designed to build trust so that people can share their personal

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information with the government without fear that it will lead to their deportation or the

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deportation of a family member. And the federal government focuses particular attention on

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California’s refusal to share the release date of certain detainees, which likewise sends a clear

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and unmistakable signal to residents that the state government is not a mere instrument of the

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federal government’s deportation apparatus; such information-sharing will happen only in

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accordance with California’s own law enforcement needs. See Cal. Gov’t Code

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§ 7284.6(a)(1)(C); DOJ Mem. in Supp. of Prelim. Inj. at 23–29.

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Federal attempts, such as those here, to conscript local officers into providing sensitive

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information about local residents unconstitutionally “impress” those officers “into [federal]

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service” and impermissibly confuse lines of accountability, resulting in local governments

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“taking the blame” in immigrant communities for federal choices. Printz v. United States, 521

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U.S. 898, 922, 930 (1997); see also Cal. Mem. in Opp’n to Prelim. Inj. at 14–17. This is

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particularly so where the federal statute invoked by DOJ—8 U.S.C. § 1373(a)—cannot be seen

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as “anything other than a direct command” to state and local governments, invalid under the

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Tenth Amendment. Murphy v. NCAA, Nos. 16-476, 16-477, 2018 U.S. LEXIS 2805, at *39

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(May 14, 2018) (also finding the distinction “empty” between a law requiring an affirmative

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obligation and a law imposing a prohibition on state governments).

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The outcome would not change even if federal preemption, rather than anti-

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commandeering doctrine, supplied the proper framework for analysis. Contrary to the federal

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government’s claims, policies that clearly separate local public services from the federal

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immigration enforcement system—like the challenged provisions of the California Values

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Act—are neither “intended to uniquely impede the enforcement of the immigration laws” nor

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“specifically designed to obstruct federal immigration enforcement.” DOJ Mem. in Supp. of

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Prelim. Inj. at 31, 32. They are instead essential to fulfilling local governments’ fundamental

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role in serving their residents, as experience confirms that absent the trust engendered by

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policies protecting personal information, people simply will not seek assistance or cooperate

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with local governments in the provision of essential services. The basic purpose—and

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demonstrated effect—of such policies is thus to improve public health, safety and welfare, all

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police powers in “fields of traditional state regulation” that are not lightly to be preempted.

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Riegel v. Medtronic, Inc., 529 U.S. 598, 618 (2008).

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Ensuring that all of our residents, including immigrants, can and do access government

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services is not a minor concern, but rather indispensable to the vitality, prosperity, and safety of

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our communities, because immigrants play central roles in cities large and small. For example,

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nearly six out of every ten New York City residents are immigrants or the children of

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immigrants, and immigrants contributed $195 billion to the City’s gross domestic product in

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2017.1 In Chicago, immigrants pay $1.6 billion in state and local taxes (and more in federal

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taxes); additionally, while immigrants make up 20.7 percent of Chicago’s population, they

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account for 36.4 percent of its entrepreneurs, a remarkable measure of economic dynamism.2 In

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Tukwila, Washington, 41 percent of the city’s residents were born outside the country and half

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speak a language other than English at home. Meanwhile, in Philadelphia, immigrants make up

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13 percent of the City’s population but were responsible for 96 percent of the “Main Street”

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neighborhood business growth between 2000 and 2013 and 75 percent of the city’s workforce

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growth since 2000.3

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Our concern is not—and cannot be—limited to those who have legal status in this

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country. In New York City alone, roughly 560,000 residents are undocumented and

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approximately one million residents live in a household where at least one member is

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undocumented.4 And in broader ways, the well-being of all our residents is connected. No one

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benefits when large portions of the population are reluctant to obtain vaccinations against

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1

N.Y.C. Dep’t of City Planning, The Newest New Yorkers, 2013, available at
http://on.nyc.gov/2drcFH6; Mayor’s Office of Immigrant Affairs, State of Our Immigrant City,
March 2018, at 6, available at https://on.nyc.gov/2Iu3Lw6.
2
Memorandum from City of Chicago to City of New York (May 16, 2018).
3
Americas Society/Council of the Americas & The Fiscal Policy Institute, Bringing Vitality
to Main Street: How Immigrant Small Businesses Help Local Economies Grow, available at:
http://www.as-coa.org/sites/default/files/ImmigrantBusinessReport.pdf.
4
Mayor’s Office of Immigrant Affairs, supra note 1 at 6.
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preventable disease or are afraid to speak to the police because they worry that sharing their

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personal information might lead to deportation for themselves or their family members.

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Thus, local governments have adopted policies—some going back decades—motivated

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by the same concerns and experiences that underlie the California Values Act’s information-

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sharing provisions.5 These policies are diverse in approach and scope, as befitting the diverse

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needs of our jurisdictions, but all are based on the need to maintain trust with communities.

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Many of these policies, such as New York City’s, protect not only the confidentiality of

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residents’ immigration status, but also other sensitive information such as sexual orientation,

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status as a victim of domestic violence or sexual assault, or receipt of public assistance.6 Others

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are specifically focused on information sharing by law enforcement. The valid and legitimate

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concerns animating these policies are as simple as they are powerful. Our experience as local

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governments makes plain that we must build trust with residents if we are to govern effectively.

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Contrary to the DOJ’s unsupported claims that states and local governments lack any

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“legitimate interest” in these policies, DOJ Mem. in Supp. of Prelim. Inj. at 32, the policies

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serve an important and lawful purpose. Indeed, they are critical to effective local governance.

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See, e.g., N.Y.C. Mayoral Exec. Order 41 (2003); N.Y.C. Admin. Code § 9-131(h)(1);
Chicago Mun. Code § 2-173; Cook Cty. Bd. of Comm’rs Res. 07- R-240; Cook Cty. Ill., Mun.
Code § 46-37(b); Denver Rev. Mun. Code §§ 28-250 to 28-253; Denver Exec. Order 142
(2017); Madison Res. 17-00125; Minneapolis Code of Ordinances Ch. 19; Or. Rev. Stat.
§ 181A.820; 2017 Or. Laws Ch. 724 (HB 3464); Phila. Exec. Order 8-09; Phila. Exec. Order 516; Rochester Res. No. 2017-5; Tukwila Res. 1900.
6
See e.g. N.Y.C. Charter § 8(g); N.Y.C. Mayoral Exec. Order 41 (2003).
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ARGUMENT

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2

POLICIES THAT PROTECT SENSITIVE
INFORMATION
ABOUT
IMMIGRANT
POPULATIONS ARE ESSENTIAL TO LOCAL
GOVERNMENTS’
ABILITY
TO
EFFECTIVELY DELIVER SERVICES

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4
5

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A. The fear of immigration enforcement can discourage residents from engaging
with essential local government services, including police, schools, and medical
care.

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In immigrant communities, fear of government officials can pose a considerable

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obstacle to basic government functions. According to one recent study, 40 percent of Latino

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parents surveyed told their children to avoid medical care, police, and other public services, and

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almost half told their children to stay away from authorities generally.7 These fears are not

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limited to those without legal status, because undocumented immigrants are the parents,

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siblings, and friends of citizens and legal residents. Even parents who were citizens or had

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permanent resident status were found to have issued similar warnings to their children, at only

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slightly lower rates.8 Notably, these instructions stemmed directly from immigration-related

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fears.9 Local governments cannot effectively prevent crime, or halt the spread of communicable

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diseases, when parents instruct their children to avoid police and doctors.

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Immigration concerns can cripple a city’s ability to investigate or prosecute crime.

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Because they fear that police will ask about their immigration status or the status of people they

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know, 45 percent of Latinos say in surveys that they are less likely to report a crime or offer

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information about crimes, whether as a witness or a victim.10 This behavior extends throughout

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entire communities, far beyond undocumented immigrants or even immigrants with legal

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25
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7

Kathleen Roche, et al., Impacts of Immigration Actions and News and the Psychological
Distress of U.S. Latino Parents Raising Adolescents, J. Adolescent Health (forthcoming 2018),
available at https://bit.ly/2FAbbrT.
8
Id.
9
Id.
10
Nik Theodore, Insecure Communities: Latino Perceptions of Police Involvement in
Immigration Enforcement, May 2013, available at https://bit.ly/1Adp6RD.
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status: 28 percent of Latinos born in the United States—U.S. citizens—say they are less likely

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to contact police, as the direct victims of a crime, because they fear immigration consequences

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for those close to them.11 The result is plain. “[T]he failure to obtain that victim and witness

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cooperation could both hinder law enforcement efforts and allow criminals to freely target

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communities with a large undocumented population, knowing that their crimes will be less

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likely to be reported.” City of Chicago v. Sessions, No. 17-2991, 2018 U.S. App. LEXIS 9862,

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at *15 (7th Cir. Apr. 19, 2018).

8

Recent federal actions and rhetoric have worsened this problem. In January 2017, for

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example, President Trump issued a sweeping executive order instructing law enforcement

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agencies to target more immigrants for deportation, encourage state and local government

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participation in federal immigration enforcement, and unilaterally withdraw all federal funding

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from whatever jurisdictions the Attorney General deemed “sanctuary jurisdictions.” Exec.

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Order No. 13,768, 82 Fed. Reg. 8799 (Jan. 25, 2017). This unprecedented attempt to coerce

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local governments into serving as federal immigration agents has already been found

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unconstitutional. County of Santa Clara v. Trump, 275 F. Supp. 3d 1196 (N.D. Cal. 2017).

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Even so, it sent an unmistakable message to immigrants, raising the specter that any interaction

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with local authorities could risk immigration consequences. Indeed, in remarks before

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Congress, acting Immigration and Customs Enforcement Director Tom Homan told

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undocumented immigrants, “[Y]ou should be uncomfortable … You should look over your

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shoulder.”12

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This message was heard loud and clear, sending many residents into the shadows, to the

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detriment of their own safety and the public’s. In Houston, for example, the number of Latinos

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reporting rapes dropped by 40 percent compared to the year before, even as non-Latino victims

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11

Id.
Dara Lind, Fear Itself: Donald Trump’s Real Immigration Policy, Vox (Sep. 17, 2017),
https://bit.ly/2h3IcGo.
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reported an increased number of rapes.13 Latinos in Salt Lake City reported 36 percent fewer

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larcenies and thefts, even as crime reporting among other demographics stayed roughly the

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same.14 Fears of deportation caused victims to drop their domestic violence cases in cities like

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Austin, San Antonio, and Denver.15

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Public health, too, has suffered. Doctors have reported parents cancelling their

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children’s pediatric appointments and vaccinations over immigration fears,16 or cancelling

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health insurance coverage altogether.17 Many immigrant patients have applied for public

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medical coverage but withheld sensitive identifying information from their forms—precisely

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the kind of information many cities and the California Values Act try to keep confidential—and

10

then are predictably denied for having submitted incomplete applications.18 Nationwide, in one

11

of the worst flu seasons in memory, eight percent fewer Hispanic adults received flu shots this

12

year than in 2016, compared to a two percent decline among all Americans.19 As one legal

13

resident explained to the Associated Press, “We’re afraid of maybe getting sick or getting into

14

an accident, but the fear of my husband being deported is bigger.”20

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16
17
18
19
20
21
22
23
24
25
26
27
28

13

Jennifer Medina, Too Scared to Report Sexual Abuse. The Fear: Deportation., N.Y.
Times (Apr. 30, 2017), https://nyti.ms/2pOOe0Q; Brooke A. Lewis, HPD Chief Announces
Decrease in Hispanics Reporting Rape and Violent Crimes Compared to Last Year, Houston
Chron. (Apr. 6, 2017), https://bit.ly/2wvUQVV.
14
Christopher Smart, Fearful of deportation, unauthorized immigrants in Salt Lake City are
not reporting crime, police chief says, The Salt Lake Trib., Jan. 9, 2018, https://bit.ly/2wDRlx1.
15
Tom Dart, Fearing deportation, undocumented immigrants wary of reporting crimes, The
Guardian, Mar. 23, 2017, https://bit.ly/2nMHVd7.
16
Nicole Rodriguez, Trump’s Immigration Crackdown Creating a Public Health Crisis
Among Children, Analysts Say, Newsweek, Jan. 4, 2018, https://bit.ly/2E6M93w.
17
Emily Bazar, Some Immigrants, Fearful of Political Climate, Shy Away from Medi-Cal,
California Healthline, Feb. 16, 2017, https://bit.ly/2KPyQbK.
18
Kelli Kennedy, Immigration Concerns Drive Legal Immigrants Away from Public Health
Care, Christian Sci. Monitor (Jan. 22, 2018), https://bit.ly/2IxTi2z.
19
Donald G. McNeil, Jr., Trump, Tell Us About Your Flu Shot, N.Y. Times, Feb. 9, 2018,
https://nyti.ms/2KRM8EI.
20
Kennedy, supra note 18.
7
AMICI BRIEF OF LOCAL GOVERNMENTS
IN OPPOSITION TO PRELIM. INJ. AND IN SUPPORT OF MOTION TO DISMISS

No. 2:18-cv-00490-JAM-KJN

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These trends are consistent with what local governments have long known: when states

2

and local governments engage in immigration enforcement, immigrant communities disengage

3

from public services. After Arizona enacted SB 1070—which among other things allowed and

4

sometimes required state and local police officers to enforce federal immigration law21—

5

Mexican-origin citizens and non-citizens alike avoided basic preventive health care, including

6

for their children.22 Notably, even the message that states will engage in immigration

7

enforcement is enough to trigger this effect. California’s Proposition 187, for example, would

8

have required all government officials to report any person using public services who was

9

suspected of being an undocumented immigrant to federal immigration enforcement.23 Even

10

though Prop. 187 was immediately enjoined by a federal court, it nonetheless resulted in

11

reduced medical care in immigrant communities—including for highly communicable diseases

12

like tuberculosis.24 Likewise, Alabama’s HB 56 required, among other things, that public

13

schools check the immigration status of all students.25 Again, although this provision was

14

blocked from taking effect, the U.S. Department of Justice observed that 13.4 percent of

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Hispanic children dropped out of school as a result, while other groups of students were

16

unaffected.26 And in the public health arena, when Indiana began asking women and children

17

receiving nutritional assistance about their immigration status, enrollment immediately

18

plunged.27

19
20

21

Arizona v. United States, 567 U.S. 387, 394 (2012).
Russell B. Toomey, et al., Impact of Arizona’s SB 1070 Immigration Law on Utilization
of Health Care and Public Assistance Among Mexican-Origin Adolescent Mothers and Their
Mother Figures, 104 Am. J. Pub. Health S28 (2014), available at https://bit.ly/2IbAx1w.
23
See LULAC v. Wilson, 908 F.Supp. 755 (C.D. Cal. 1995).
24
Kari White, et al., Impact of Alabama’s Immigration Law on Access to Health Care
Among Latina Immigrants and Children: Implications for National Reform, 104 Am. J. Pub.
Health 397 (2014), available at https://bit.ly/2G2U3eS.
25
See Hispanic Interest Coalition v. Governor of Ala., 691 F.3d 1236 (11th Cir. 2012).
26
Feds: Alabama immigration law caused spike in Hispanic student absences, CNN (May
4, 2012), https://cnn.it/2IbV0U3.
27
Emily Baumgaertner, Spooked by Trump Proposals, Immigrants Abandon Public
Nutrition Services, N.Y. Times (Mar. 6, 2018), https://nyti.ms/2HeoMqg.
8
22

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AMICI BRIEF OF LOCAL GOVERNMENTS
IN OPPOSITION TO PRELIM. INJ. AND IN SUPPORT OF MOTION TO DISMISS

No. 2:18-cv-00490-JAM-KJN

2

B. Local policies to limit information sharing with federal immigration authorities
promote trust in local governments, which is necessary to protect public safety
and health.

3

As the data discussed above illustrates, the mere threat of local participation in federal

4

immigration enforcement efforts drives a wedge between local governments and their residents.

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But state and local governments can mitigate the fear that drives people away from engaging in

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essential government services by sending a clear, unequivocal message that we will protect the

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information that immigrants and their loved ones provide to the police, the public health

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system, and schools. For example, unlike many other cities, in early 2017 New York City saw

9

no decline in crime reporting associated with ZIP codes with the highest foreign-born or non-

10

citizen populations.28 This trend extended to crimes like harassment and rape, where a greater

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chilling effect would be expected if residents were afraid to contact the police because of

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immigration concerns.29 Crimes continue to be reported—and therefore, dangerous criminals

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continue to be arrested and prosecuted. New York City clinics and hospitals reported no

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decrease in outpatient visits across population groups, including by immigrant communities.30

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Residents continue to get the medical care they need, and communicable diseases are not

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allowed to spread through the population unchecked. And despite the intense distress of public

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school students with immigrant family members,31 there was no decrease in New York City

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school attendance.32 Notably, New York City data showed immense anxiety in immigrant

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communities during this time period—such as huge spikes in requests for birth certificates and

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other vital records by families planning for the safety of their children should they be

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deported—but that anxiety did not cause immigrants to disengage from local service providers.

1

22
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28

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28

Memorandum from Sabrina Fong, N.Y.C. Mayor’s Office of Immigrant Affairs to file
(May 8, 2018).
29
Id.
30
Id.
31
Monica Disare, Could fear of Trump’s immigration policies keep New York City students
out of school?, Chalkbeat (Mar. 1, 2017), https://bit.ly/2rxW5iu.
32
Memorandum from Sabrina Fong, supra note 28.
9
AMICI BRIEF OF LOCAL GOVERNMENTS
IN OPPOSITION TO PRELIM. INJ. AND IN SUPPORT OF MOTION TO DISMISS

No. 2:18-cv-00490-JAM-KJN

1

New York City officials attribute these successes to the City’s policies protecting

2

confidential information, including by limiting the information it shares with federal

3

immigration authorities, and the City’s visibly demonstrated independence from immigration

4

enforcement efforts, for instance, its refusal to share the release dates of certain detainees with

5

immigration authorities. Local agencies have systematically communicated these policies to

6

residents as part of sustained efforts to maintain trust with immigrant communities and other

7

vulnerable populations.33 Without such policies, New York City could not credibly assure its

8

immigrant communities that they can confidently and safely interact with government. It has

9

taken decades to build the trust needed to prevent the disruptions to public safety and public

10

health on display elsewhere. The DOJ would have local governments betray that trust

11

overnight. As the Seventh Circuit recently recognized, “[s]uch trust, once destroyed by the

12

mandated cooperation and communication with the federal immigration authorities, would not

13

easily be restored.” City of Chicago, 2018 U.S. App. LEXIS 9862, at *45.

14

Cities and counties across the nation, likewise, have experienced the importance of

15

these kinds of policies. In Cook County, for example, both the county’s prosecutors and its

16

public defenders have provided sworn declarations that forcing the county to provide federal

17

immigration officials with information like notifications of inmate release dates would reduce

18

cooperation with the legal system and increase violent crime.34 According to Philadelphia

19

Police Commissioner Richard Ross, crime has decreased by 17 percent—including a 20 percent

20

drop in violent crime—since 2009 when the city’s mayor issued an executive order requiring

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28

33

See, e.g., Cassi Feldman, Despite Trump immigration crackdown, city tells students and
families: ‘We stand with you’, Chalkbeat (Jan. 30, 2017), https://bit.ly/2rxttWz; N.Y.C. Health
+ Hospitals, Seek Care Without Fear, https://bit.ly/2G4otx1 (last visited May 7, 2018); CBS
New York, NYPD Memo Emphasizes Commitment to Immigrants (Feb. 22, 2017),
https://cbsloc.al/2L0eD2Y. See also Cara Buckley, New York City Police Seek Trust Among
Immigrants, N.Y. Times (May 31, 2007) (showing length of efforts to build trust between
police and immigrant communities).
34
Brief of Amicus Curiae Cook County and other Amici in Support of Pl. Motion for
Prelim. Injunction, City of Chicago v. Sessions, 264 F. Supp. 3d 933, No. 1:17-cv-5720 (N.D.
Ill. 2017).
10
AMICI BRIEF OF LOCAL GOVERNMENTS
IN OPPOSITION TO PRELIM. INJ. AND IN SUPPORT OF MOTION TO DISMISS

No. 2:18-cv-00490-JAM-KJN

1

city officers and employees to maintain the confidentiality of residents’ immigration

2

information.35 Philadelphia is currently experiencing its lowest crime rate in four decades for

3

serious crimes such as murder, rape, robbery, and aggravated assault. Moreover, in separate

4

litigation involving the Department of Justice, a federal district court in the Eastern District of

5

Pennsylvania issued findings of fact, after an evidentiary hearing, that without Philadelphia’s

6

policies regarding the disclosure of immigration information, “the overall security and safety of

7

many neighborhoods and communities would suffer” and there would be an increased risk of

8

the “spread of an infectious disease.” City of Philadelphia v. Sessions, 280 F. Supp. 3d 579, 611

9

(E.D. Pa. 2017).

10

Drawing a bright line separating local governments’ efforts to provide services from

11

federal activities around immigration enforcement is a well-established best practice,

12

particularly among law enforcement organizations. The International Association of Chiefs of

13

Police has recognized the concern that state and local police cooperation with federal

14

immigration enforcement activities “could have a chilling effect in immigrant communities and

15

could limit cooperation with police by members of those communities,” especially in the realm

16

of domestic violence reporting.36 Similarly, the Major Cities Chiefs Association—whose

17

members include the 69 largest law enforcement agencies in the United States—concluded that

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local police efforts in support of enforcing federal immigration law “undermines the trust and

19

cooperation with immigrant communities which are essential elements of community oriented

20

policing.”37

21

The President’s Task Force on 21st Century Policing adopted a similar position. The

22

Task Force—formed under the previous administration—engaged with a wide variety of

23

stakeholders from across the country to formulate recommendations designed to “strengthen

24
25
26
27
28

35

Memorandum from City of Philadelphia to City of New York (May 16, 2018).
Int’l Ass’n of Chiefs of Police, Enforcing Immigration Law: The Role of State, Tribal
and Local Law Enforcement, at 5, available at http://bit.ly/2ksLZxb.
37
Major Cities Chiefs Ass’n, Major Cities Chiefs Association Immigration Position (Oct.
2011), accessed May 4, 2018, https://bit.ly/2IoRh91.
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36

AMICI BRIEF OF LOCAL GOVERNMENTS
IN OPPOSITION TO PRELIM. INJ. AND IN SUPPORT OF MOTION TO DISMISS

No. 2:18-cv-00490-JAM-KJN

1

community policing and trust among law enforcement officers and the communities they

2

serve.”38 The Task Force recognized that the ability of local law enforcement to build strong

3

relationships with immigrant communities is necessary for public safety and community well-

4

being. Thus, the President’s Task Force counseled, “whenever possible, state and local law

5

enforcement should not be involved in immigration enforcement.”39 The Task Force

6

recommended, as a matter of good law enforcement practice, that agencies should “decouple”

7

local policing from federal immigration enforcement, including by ending the use of

8

notification requests by the Department of Homeland Security.40 When California and other

9

state and local governments decline requests to notify federal immigration authorities of certain

10

detainees’ release dates, they are implementing policies supported by the best law enforcement

11

thinking nationwide.

12

Congress too has recognized that keeping personal information confidential can serve

13

important functions. For instance, the federal government has used confidentiality guarantees to

14

encourage people to participate in the census and pay federal taxes. See 13 U.S.C. § 9(a);

15

26 U.S.C. § 6103. Congress recognized that these goals could be better achieved by removing

16

the threat that the information people share with the government will be used against them in a

17

context wholly divorced from the reason they shared their information in the first place.

18

This, in the end, is what so-called sanctuary policies try to do. They create a zone free

19

of immigration anxiety in which other essential government interests can be realized. In its rush

20

to condemn the California Values Act, the DOJ misses the law’s basic purpose—a purpose that

21

animates similar local government policies across the nation. Charged with the responsibility

22

for protecting, teaching, and serving all of our residents, we have enacted policies to make clear

23

to our residents that they can engage with local governments, secure in the knowledge that we

24

will protect their confidential information and keep our services separate from federal

25
38

26
27
28

The President’s Task Force on 21st Century Policing, Final Report (May 2015), at iii, 1,
available at https://bit.ly/2KPn5lP.
39
Id. at 18.
40
Id.
12
AMICI BRIEF OF LOCAL GOVERNMENTS
IN OPPOSITION TO PRELIM. INJ. AND IN SUPPORT OF MOTION TO DISMISS

No. 2:18-cv-00490-JAM-KJN

1

immigration enforcement efforts to the utmost of our ability. Based on our experiences as the

2

front-line providers of government services, we have concluded that these policies are essential

3

to our ability to engage in good and effective governance. They create safer and more

4

prosperous communities.41 Contrary to the DOJ’s suggestions, we—and the State of

5

California—have the most compelling interests at stake: public safety, health, and education.

6

The federal government’s pursuit of its immigration enforcement objectives need not and

7

should not cripple the ability of state and local governments to perform their core jobs serving

8

all residents. The federalist structure of our Constitution, far from requiring that result, is meant

9

to guard against it.

10

CONCLUSION

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12

The Court should deny plaintiff’s motion for a preliminary injunction and grant
defendants’ motion to dismiss.

13
14

Respectfully submitted,

15

/s/ Linda M. Ross

16
JONATHAN V. HOLTZMAN (SBN 99795)
([e-mail])
LINDA M. ROSS (SBN 133874)
([e-mail])
RENNE PUBLIC LAW GROUP®
350 Sansome Street, Suite 300
San Francisco, CA 94104
Telephone: [phone]
Facsimile: [phone]

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20
21
22

Counsel for Proposed Amici Curiae
City of New York, 20 local governments, and the
United States Conference of Mayors

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24
25
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27
28

41

Tom K. Wong, Center for American Progress, The Effects of Sanctuary Policies on
Crime and the Economy (Jan. 26, 2017), available at http://ampr.gs/2kxOcHX.
13
AMICI BRIEF OF LOCAL GOVERNMENTS
IN OPPOSITION TO PRELIM. INJ. AND IN SUPPORT OF MOTION TO DISMISS

No. 2:18-cv-00490-JAM-KJN

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ZACHARY W. CARTER
Corporation Counsel
of the City of New York
100 Church Street
New York, New York 10007
[phone]
Counsel for City of New York

BARBARA J. DOSECK
City Attorney
101 West Third Street
P.O. Box 22
Dayton, Ohio 45402
[phone]
Counsel for City of Dayton

WILLIAM G. KELLY, Jr.
Corporation Counsel
City of Albany
24 Eagle Street
Albany, NY 12207
[phone]
Counsel for City of Albany

KRISTIN M. BRONSON
Denver City Attorney
1437 Bannock St., Room 353
Denver, CO 80202
[phone]
Counsel for City and County of Denver

EILEEN M. BLACKWOOD
City Attorney and Corporate Counsel
City of Burlington
149 Church Street, Room 11
Burlington, VT 05451
[phone]
Counsel for City of Burlington

GREGORY L. THOMAS
City Attorney
401 Broadway, Suite 101 A
Gary, Indiana 40402
[phone]
Counsel for City of Gary, Indiana

NANCY E. GLOWA
City Solicitor
City of Cambridge
795 Massachusetts Avenue
Cambridge, MA 02139
[phone]
Counsel for City of Cambridge

AARON O. LAVINE
City Attorney
108 E. Green St.
Ithaca, NY 14850
[phone]
Counsel for City of Ithaca

EDWARD N. SISKEL
Corporation Counsel
of the City of Chicago
30 N. LaSalle Street, Suite 800
Chicago, IL 60602
[phone]
Counsel for City of Chicago

MICHAEL P. MAY
City Attorney for the City of Madison
210 Martin Luther King Jr. Blvd
Room 401
Madison, Wisconsin 53703
[phone]
Counsel for City of Madison

KIMBERLY M. FOXX
States Attorney for Cook County
69 W. Washington, 32nd Floor
Chicago, IL 60602
[phone]
Counsel for Cook County, Illinois

SUSAN L. SEGAL
Minneapolis City Attorney
350 S. 5th Street, Rm. 210
Minneapolis, MN 55415
[phone]
Counsel for City of Minneapolis

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AMICI BRIEF OF LOCAL GOVERNMENTS
IN OPPOSITION TO PRELIM. INJ. AND IN SUPPORT OF MOTION TO DISMISS

No. 2:18-cv-00490-JAM-KJN

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3
4

JON COOPER
Director of Law
One Public Square, Suite 108
Nashville, TN 37201
[phone]
Counsel for Metropolitan Government
of Nashville and Davidson County

TIMOTHY R. CURTIN
Corporation Counsel
of the City of Rochester
30 Church St., Room 400A
Rochester, NY 14614
[phone]
Counsel for City of Rochester, New York

KATHLEEN E. GILL
Chief of Staff for Policy and Government
Affairs/Corporation Counsel
City of New Rochelle
515 North Avenue
New Rochelle, NY 10801
[phone]
Counsel for City of New Rochelle

PETER S. HOLMES
Seattle City Attorney
701 Fifth Avenue, Suite 2050
Seattle, WA 98104-7097
[phone]
Counsel for City of Seattle

MARCEL S. PRATT
City Solicitor
City of Philadelphia Law Department
1515 Arch Street, 17th Floor
Philadelphia, PA 19102
[phone]
Counsel for City of Philadelphia

FRANCIS X. WRIGHT, Jr.
City Solicitor
City of Somerville
93 Highland Avenue
Somerville, MA 02143
[phone], ext. 4400
Counsel for City of Somerville

YVONNE S. HILTON
Acting City Solicitor
City of Pittsburgh, Department of Law
313 City-County Building
414 Grant Street
Pittsburgh, PA 15219
[phone]
Counsel for City of Pittsburgh

RACHEL B. TURPIN
City Attorney
City of Tukwila
6200 Southcenter Blvd.
Tukwila, WA 98188
[phone]
Counsel for City of Tukwila

TRACY REEVE
Portland City Attorney
Portland City Attorney’s Office
1221 SW Fourth Avenue, Suite 430
Portland, OR 97240
[phone]
Counsel for City of Portland, Oregon

JOHN DANIEL REAVES
General Counsel
The United States Conference of Mayors
1200 New Hampshire Ave. NW, 3rd Floor
Washington, DC 20036
Counsel for the United States Conference of
Mayors

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AMICI BRIEF OF LOCAL GOVERNMENTS
IN OPPOSITION TO PRELIM. INJ. AND IN SUPPORT OF MOTION TO DISMISS

No. 2:18-cv-00490-JAM-KJN