New sanctuary cities rule may cost S.F. crucial federal funds
San Francisco stands to lose hundreds of thousands of dollars in Department of Justice grant funding designed to steer people away from drugs and out of jail after the Trump administration announced new rules designed to punish sanctuary cities.
But even as San Francisco leaders said Wednesday that they received $1.5 million last year from the program targeted by the administration, they said their pro-immigrant policies complied with federal law and could not be invoked to deny such aid.
According to the new guidelines for the Edward Byrne Memorial Justice Assistance Grant Program — the largest federal criminal justice funding program — local jurisdictions must allow agents from U.S. Immigration and Customs Enforcement, known as ICE, into their jails to meet with people thought to lack citizenship.
They must also notify ICE at least two days before releasing an inmate wanted for deportation, so that federal agents can pick them up, according to the rules. San Francisco’s sanctuary laws limit the city’s cooperation with immigration agents, and jail officials must only notify ICE about an inmate’s release if the person’s rap sheet fits a strict criteria.
“So-called ‘sanctuary’ policies make all of us less safe because they intentionally undermine our laws and protect illegal aliens who have committed crimes,” said Attorney General Jeff Sessions.
Sessions announced the changes to the grant’s requirements on Tuesday amid a barrage of criticism from President Trump over his decision to recuse himself from the investigation into Russian meddling in last year’s election.
San Francisco officials said the city was spending the grant funding it received last year to, among other things, fight drug addiction, divert people who are arrested into rehabilitation and try to keep people who serve jail and prison time from returning behind bars. They said they planned to apply for additional funds this year, but could not give a precise amount for the request.
City Attorney Dennis Herrera said his office was reviewing the move by the Justice Department and did not anticipate it would be successful.
“Attorney General Sessions is imposing new conditions on certain federal grants, without apparent authorization from Congress and in violation of the Constitution,” said Herrera. “We are reviewing these new grant documents, but we remain confident that San Francisco’s sanctuary city policies comply with federal law and that San Francisco continues to be eligible for grant funding.”
Foremost on the minds of city officials is that the guidelines were issued after U.S. District Judge William Orrick III of San Francisco rejected the Trump administration’s request to reconsider the nationwide injunction he issued in April, blocking the threatened cutoffs of federal funds to sanctuary cities in response to lawsuits by San Francisco and Santa Clara County.
Orrick said Trump’s effort to punish sanctuary cities in a bid to force changes, which came in a Jan. 25 executive order, exceeded the president’s constitutional authority.
Justice Department lawyers had argued that Sessions had eliminated the prospects of a wholesale takeaway of federal funding after he released a memo detailing how the executive order applied only to a limited number of federal grants.
It wasn’t immediately clear that the new Department of Justice guidance violated the terms of the court injunction. But Annie Lai, a professor and expert in immigration law at the UC Irvine School of Law, said the judge had made statements that could bode poorly for the government’s latest approach.
“The court affirmed that neither the president nor the DOJ have the power to place conditions of this type on federal funds unilaterally,” she said.
Complicating the fight ahead is the fact that jails often cannot give 48-hour notice of an inmate’s release. A person whose charges are dropped, for example, would typically be released more quickly. San Francisco, like many other jurisdictions in the state, has decided that a request from ICE doesn’t justify holding a person who otherwise would be freed.
The new rules “could cause people to be held on the basis of an ICE detainer alone, which courts have held violate the Fourth Amendment,” Lai said.
San Francisco has been a focus of the debate over sanctuary laws in part because of the July 2015 killing of Kate Steinle on Pier 14. The Mexican citizen accused in the shooting had been recently released from San Francisco jail rather than turned over to immigration agents under the city’s sanctuary policies.
San Francisco Mayor Ed Lee noted Wednesday that this was not the first time the Trump administration had threatened to withhold money from the city.
“What has not changed, despite each new threat, is our commitment to our residents. Sanctuary cities are stronger and safer cities,” he said. “We cannot have our residents living in the shadows, where they are fearful to go to work, enroll their children in schools or seek medical assistance.”