united states of america, plaintiff-appellant, v... · 2018-11-09 · appeal no. 18- 16496 . united...

Appeal No. 18-16496

UNITED STATES COURT OF APPEALS FOR THE NINTH CIRCUIT

United States of America, Plaintiff-Appellant,

v.

State of California, et al., Defendants-Appellees.

ON APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE EASTERN DISTRICT OF CALIFORNIA THE HONORABLE JOHN A. MENDEZ, JUDGE

CASE NO. 2:18-CV-00490-JAM-KJN

BRIEF OF AMICI CURIAE 29 CALIFORNIA COUNTIES, CITIES, AND LOCAL

OFFICIALS IN SUPPORT OF DEFENDANTS-APPELLEES AND FOR AFFIRMANCE MARGARET L. CARTER DANIEL R. SUVOR O’MELVENY & MYERS LLP 400 SOUTH HOPE STREET, 18ᵗʰ FLOOR LOS ANGELES, CALIFORNIA 90071-2899 TELEPHONE: 213.430.6000 FACSIMILE: 213.430.6407 Attorneys for Amicus Curiae County of Los Angeles BARBARA J. PARKER, CITY ATTORNEY MARIA BEE ERIN BERNSTEIN MALIA MCPHERSON ONE FRANK H. OGAWA PLAZA, 6TH FLOOR OAKLAND, CALIFORNIA TELEPHONE: 510.238.3601 FACSIMILE: 510.238.6500 Attorneys for Amicus Curiae City of Oakland

JAMES R. WILLIAMS, COUNTY COUNSEL GRETA S. HANSEN KAVITA NARAYAN JAVIER SERRANO 70 WEST HEDDING STREET, E. WING, 9TH FLOOR SAN JOSÉ, CA 95110 TELEPHONE: 408.299.5900 FACSIMILE: 408.292.7240 Attorneys for Amicus Curiae County of Santa Clara

Case: 18-16496, 11/09/2018, ID: 11083502, DktEntry: 54, of 47

i

CORPORATE DISCLOSURE STATEMENT

Pursuant to Federal Rule of Appellate Procedure 26.1, amici curiae all are

political subdivisions or local officials, for whom no corporate disclosure is

required.


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TABLE OF CONTENTS

Page

CORPORATE DISCLOSURE STATEMENT ......................................................... i

TABLE OF CONTENTS .......................................................................................... ii

TABLE OF AUTHORITIES ................................................................................... iv

INTEREST OF AMICI CURIAE .............................................................................. 1

ARGUMENT ............................................................................................................. 6

I. SB 54 REFLECTS CALIFORNIA’S CONSIDERED EXERCISE OF ITS HISTORIC POWER TO PROMOTE PUBLIC SAFETY, HEALTH, AND WELFARE ........................................................................... 6

II. THE FEDERAL GOVERNMENT’S ATTEMPTED COERCION OF LOCAL IMMIGRATION ENFORCEMENT UNDERMINES PUBLIC SAFETY BY DISCOURAGING COMMUNITY ORIENTED POLICING AND CIVIC PARTICIPATION BY IMMIGRANTS ................................................................................................ 8

A. State and Local Control of Law Enforcement Is Integral to Promoting Public Safety and Fostering Trust Between Immigrant Communities and Police ...................................................... 9

1. Research confirms sanctuary policies’ positive effect on public safety ..............................................................................11

2. Courts recognize that entanglement between local law enforcement and federal immigration enforcement does not lead to safer communities ...................................................20

B. State and Local Sanctuary Policies Promote the Health and Welfare of California Residents ..........................................................23

1. Sanctuary policies support improved public health ..................24

2. Jurisdictions adopting sanctuary policies promote stronger economies ...................................................................27


iii

CONCLUSION ........................................................................................................28


iv

TABLE OF AUTHORITIES

Page(s)

Cases

City & Cty. of San Francisco v. Sessions, No. 17-04642-WHO, 2018 WL 4859528 (N.D. Cal. Oct. 5, 2018) ....... 10, 20, 22

City of Chicago v. Sessions (City of Chicago II), No. 18-2885 (7th Cir. Aug. 28, 2018) ..................................................................21

City of Chicago v. Sessions, 2018 WL 4268814 (7th Cir. Aug. 10, 2018) .......................................................21

City of Chicago v. Sessions, 2018 WL 4268817 (7th Cir. June 4, 2018) ..........................................................21

City of Chicago v. Sessions, 321 F. Supp. 3d 855 (N.D. Ill. 2018) ...................................................................21

City of Chicago v. Sessions, 888 F.3d 272 (7th Cir. 2018), vacated in part by, No. 17-2991, 2018 WL 4268817 (7th Cir. June 4, 2018) ................................................................... 20, 21

City of Philadelphia v. Sessions, 280 F. Supp. 3d 579 (E.D. Pa. 2017) ...................................................................22

City of Philadelphia v. Sessions, 309 F. Supp. 3d. 289 (E.D. Pa. 2018) ........................................................... 20, 22

Gonzales v. Oregon, 546 U.S. 243 (2006) .............................................................................................23

Nat’l Fed’n of Indep. Bus. v. Sebelius, 567 U.S. 519 (2012) ............................................................................................... 6

Rice v. Santa Fe Elevator Corp., 331 U.S. 218 (1947) ............................................................................................... 6

Terrace v. Thompson, 263 U.S. 197 (1923) ............................................................................................... 6


TABLE OF AUTHORITIES (continued)

Page(s)

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United States v. California, 314 F. Supp. 3d 1077 (E.D. Cal. 2018)............................................... 5, 10, 11, 20

United States v. Lopez, 514 U.S. 549 (1995) .............................................................................................28

United States v. Morrison, 529 U.S. 598 (2000) ............................................................................................... 6

Constitutional Provisions

Cal. Const. Art. XI, § 7 .............................................................................................. 7

Statutes

Cal. Gov’t Code § 7284 ............................................................................................. 5

Cal. Gov’t Code § 7284.2(a)–(e) ............................................................................... 7

Cal. Gov’t Code § 7284.2(b)-(d) ..............................................................................23

Cal. Gov’t Code § 7284.2(f) ...................................................................................... 7

Other Authorities

About Us, County of Alameda, CA, available at https://www.acgov.org/about/ (last visited Nov. 7, 2018) ...................................................................................... 2

Advanced Search: Place of Birth By Nativity and Citizenship Status — 2017 American Community Survey 1-Year Estimates, U .S. Census Bureau, available at https://factfinder.census.gov/faces/tableservices/jsf/pages/productview.xhtml?pid=ACS_17_1YR_B05002&prodType=table (last visited Nov. 7, 2018) .............. 2

Advanced Search: Annual Estimates of the Resident Population: April 1, 2010 to July 1, 2017 2017, U .S. Census Bureau, available at https://factfinder.census.gov/faces/tableservices/jsf/pages/productview.xhtml?pid=PEP_2017_PEPANNRES&prodType=table (last visited Nov. 7, 2018) .......... 4

Angela S. Garcia, The Sanctuary Cities Debate, University of Chicago, 23 SSA Magazine 1 (2016), available at https://goo.gl/tnZU2f .......................................13



Page(s)

vi

Anita Khashu, The Role of Local Police: Striking a Balance Between Immigration Enforcement and Civil Liberties, Police Foundation (Apr. 2009), available at https://goo.gl/DoKdWs ........................................................................................16

Bernice Yeung, Police: Immigration Policies Making It Harder to Catch Criminals, RevealNews.Org (Feb. 5, 2018), available at https://goo.gl/hNMaBW .......................................................................................17

Brianna Ehley et al., Fearing Deportation, Immigrants Forgo Medical Care, Politico (July 17, 2017), available at https://www.politico.com/story/2017/07/17/deportation-fears-under-trump-have-immigrants-forgoing-medical-care-240635 .........................................................25

Christopher Lyons et al., Neighborhood immigration, violence, and city-level immigrant political opportunities, 78 Am. Sociological Rev. 604 (2013) ... 12, 14

Chuck Wexler, Police chiefs across the country support sanctuary cities because they keep crime down, L.A. Times (Mar. 6, 2017), available at https://goo.gl/Fut52T ............................................................................................14

Community Policing Dispatch, Office of Community Oriented Policing Services (Feb. 2013), available at https://goo.gl/RfdtXC ..................................................18

Craig E. Farrell, Jr. et al., M.C.C. Immigration Committee Recommendations For Enforcement of Immigration Laws by Local Policy Agencies, Major Cities Chiefs Ass’n 5–6 (2006) ........................................................................................ 9

Declaration of Tom K. Wong, California v. Sessions, No. 17-04701, ECF 116-4 (N.D. Cal. July 7, 2018) ............................................13

Elina Treyger et al., Immigration Enforcement, Policing, and Crime, 13 Criminology 285 (2014) .......................................................................................12

Elisa Jácome, The Effect of Immigration Enforcement on Crime Reporting: Evidence from the Priority Enforcement Program (Princeton U. Indus. Rel. Sec. Working Paper No. 624, 2018), https://dataspace.princeton.edu/jspui/handle/88435/dsp018p58pg70r ......... 15, 16

Estimates of unauthorized immigrant population, by metro area, 2014, Pew Research Center (Feb. 3, 2017), available at https://goo.gl/ZwBgda ................... 2



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Facts About Los Angeles, Discover Los Angeles, 2017 L.A. Tourism & Convention Board (Dec. 15, 2017), available at https://goo.gl/KtVZWn ............ 3

Final Report of the President’s Task Force on 21st Century Policing, President’s Task Force on 21st Century Policing at 18, Office of Community Oriented Policing Services (May 2015), available at https://goo.gl/SJXSaL ....................18

Helen B. Marrow, The power of local autonomy: expanding health care to unauthorized immigrants in San Francisco, 35 Ethnic & Racial Stud. 72 (2012) ....................................................................................................................... 24, 25

Int’l Ass’n of Chiefs of Police, IACP National Policy Summit on Community-Police Relations, (Jan. 2015), https://www.theiacp.org/sites/default/files/2018-09/CommunityPoliceRelationsSummitReport_web.pdf........................................ 9

Jacqueline Fox, Zika and the Failure to Act Under the Police Power, 49 Conn. L. Rev. 1211 (May 2017) .........................................................................................26

Jan Hoffman, Sick and Afraid, Some Immigrants Forgo Medical Care, N.Y. Times (June 26, 2017), available at https://www.nytimes.com/2017/06/26/health/undocumented-immigrants-health-care.html ...............................................................................................................25

Joseph Hayes and Laura Hill, Undocumented Immigrants in California, Public Policy Institute of California (March 2017), available at https://goo.gl/41CVyK8

Judith Walzer Leavitt, Chinatown, N.Y. Times (Apr. 27, 2003), available at https://goo.gl/s1Ce4s ............................................................................................26

Karen Hacker et al., The impact of Immigration and Customs Enforcement on immigrant health: Perceptions of immigrants in Everett, Massachusetts, USA, 73 Soc. Sci. & Med. 586 (2011) ........................................................................ 24, 26

Kathleen M. Roche et al., Impacts of Immigration Actions and News and the Psychological Distress of U.S. Latino Parents Raising Adolescents, 62 J. Adolescent Health 525 (2018), available at https://www.jahonline.org/article/S1054-139X(18)30054-5/pdf ........................18

L.A. Police Dep’t., Decline in Reporting of Crime Among Hispanic Population, (Mar 21, 2017) available at http://www.lapdonline.org/home/news_view/61998# .........................................17



Page(s)

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L.A. Police Dep’t., Statement on Sexual Assault and Domestic Violence Reporting in Immigrant Communities, (Apr. 27, 2018), available at http://www.lapdonline.org/newsroom/news_view/63831 ...................................17

Letter from Law Enforcement Immigration Task Force to Congress (June 28, 2017), available at https://goo.gl/Pn94ai .............................................................19

Los Angeles, Center for the Study of Immigration Integration, USC Dornsife College Of Letters, Arts and Sciences, available at https://goo.gl/wzroXy (last visited Nov. 7, 2018) .............................................................................................. 3

Memorandum for Heads of Department Components and United States Attorneys: Supporting Federal, State, Local, and Tribal Law Enforcement, Off. of Att’y Gen. (Mar. 31, 2017), available at https://www.justice.gov/opa/press-release/file/954916/download ................................................................................ 7

Michael L. Light et al., Undocumented Immigration, Drug Problems, and Driving Under the Influence in the United States, 1990-2014, Am. J. Public Health (July 20, 2017) ..............................................................................................................26

Michael Light and Ty Miller, Does Undocumented Immigration Increase Violent Crime?, 56 Criminology 370 (2018), available at https://goo.gl/YJbs2V ..........11

Michelangelo Landgrave and Alex Nowrasteh, Criminal Immigrants: Their Numbers, Demographics, and Countries of Origin, CATO Institute, Immigration Research and Policy Brief No. 1 (Mar. 15, 2017), available at https://goo.gl/PqQtmR .........................................................................................13

Motion by Supervisor Hilda L. Solis, Protecting Los Angeles County Residents Regardless of Immigration Status (Dec. 6, 2016), available at https://goo.gl/oNczH5 ............................................................................................ 3

Nik Theodore, Insecure Communities: Latino Perceptions of Police Involvement in Immigration Enforcement, Univ. of Ill. Chicago (May 2013), available at https://www.policylink.org/sites/default/files/INSECURE_COMMUNITIES_REPORT_FINAL.PDF .............................................................................................15

Oakland Resolution No. 63950, adopted July 8, 1986 .............................................. 2

Oakland Resolution No. 86498, adopted November 29, 2016 .................................. 2



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Oakland Resolution No. 87036, adopted January 16, 2018 ...................................... 2

Pradine Saint-Fort et al., Engaging Police in Immigrant Communities (Oct. 2012), available at https://storage.googleapis.com/vera-web-assets/downloads/Publications/engaging-police-in-immigrant-communities-promising-practices-from-the-field/legacy_downloads/engaging-police-in-immigrant-communities.pdf .................................................................................19

Proposed “Public Charge” Rule, County of Santa Clara, available at https://www.sccgov.org/sites/cco/public-charge/pages/home.aspx (last visited Nov. 7, 2018) .......................................................................................................... 4

Randy Capps et al., Delegation and Divergence: A Study of 287(g) State and Local Immigration Enforcement, Migration Policy Institute 43 (Jan. 2011) ......15

Robert Sampson et al., Neighborhoods and Violent Crime: A Multilevel Study of Collective Efficacy, Science Magazine (Aug. 15, 1997), available at https://goo.gl/BgMim4 .........................................................................................14

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) ...................................................................................................................24

Ruth D. Peterson and Lauren J. Krivo, National Neighborhood Crime Study (NNCS), Inter-university Consortium for Political and Social Research (2000), available at https://www.icpsr.umich.edu/icpsrweb/RCMD/studies/27501/summary ...........12

Salvador Rizzo, Trump’s Claim that Immigrants Bring ‘Tremendous Crime’ Is Still Wrong, Wash. Post (Jan. 18, 2018), available at https://www.washingtonpost.com/news/fact-checker/wp/2018/01/18/trumps-claim-that-immigrants-bring-tremendous-crime-is-still-wrong/?utm_term=.a4992907a1ee .......................................................................12

Sarah Stillman, When Deportation Is a Death Sentence, The New Yorker (Jan. 15, 2018), available at https://goo.gl/4s1P6N ...........................................................17

Scott H. Decker, et al., Immigration and Local Policing: Results from a National Survey of Law Enforcement Executive, Police Foundation (June 2015), available at https://goo.gl/WsPwsh .....................................................................................16



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Sheyda M. Aboii, Undocumented Immigrants and the Inclusive Health Policies of Sanctuary Cities, Harvard Pub. Health Rev. (2014) ............................................24

State of Cal. Assembly Comm. on Judiciary, Employment Regulation: Immigration Worksite Enforcement Issues, A.B. 450 (Apr. 25, 2017) ...............10

Tara Watson, Inside the Refrigerator: Immigration Enforcement and Chilling Effects in Medicaid Participation, 6 Am. Econ. J.: Econ. Pol’y 313 (2014) ......24

Tom Wong, Sanctuary Cities don’t ‘breed crime.’ They encourage people to report crime, Wash. Post (Apr. 24, 2018), available at https://www.washingtonpost.com/news/monkey-cage/wp/2018/04/24/sanctuary-cities-dont-breed-crime-they-encourage-people-to-report-crime/?noredirect=on&utm_term=.9a22bfea81c1 ...............................................14

Tom Wong, The effect of sanctuary policies on crime and the economy, Center for American Progress (Jan. 26, 2017), available at https://goo.gl/UFUtnk ............11


1

INTEREST OF AMICI CURIAE1

State and local jurisdictions bear primary responsibility for ensuring the

safety and well-being of their communities. This principle is neither novel nor

controversial; it is at the core of our federalist system of government. In exercising

their sovereign duty to promote public safety, states and local governments

throughout the United States—including Amici,2 29 counties, cities, and local

officials throughout California, representing 18,500,000 residents—have adopted

local laws and policies reflecting their careful judgment of what policies and

practices best serve their communities. Amici hail from all corners of the state,

including counties of more than 10 million people and cities of less than 3,500.

1 All parties have consented to the filing of this brief. Pursuant to Federal Rule of Appellate Procedure 29(a)(4)(E), the undersigned counsel certifies that: this brief was authored in full by Amici and their counsel, no party or counsel for a party authored or contributed monetarily to this brief in any respect; and no other person or entity—other than Amici and their counsel—contributed monetarily to this brief’s preparation or submission. 2 Amici California Localities represent local jurisdictions and officials that have taken steps to improve public health and safety in their communities by encouraging immigrant communities to interact with local government employees. While some Amici identify as “cities of refuge,” “sanctuary cities,” or “sanctuary jurisdictions,” many do not use a specific term to describe their local policies. All Amici California Localities have taken certain efforts to allocate their local law enforcement resources to community safety and crime prevention, rather than enforcement of federal civil immigration law, or have otherwise adopted policies that support community safety by engaging with immigrant communities. For the purposes of this brief, the term “Amici” will be used to collectively refer to this diverse array of localities, which are listed at the end of this brief.


2

• The City of Oakland is the largest city in Alameda County.3 Roughly 28.1%

of the City’s approximately 425,000 residents are foreign born,4 and the

greater Oakland metropolitan area is home to approximately 240,000

undocumented immigrants.5 Oakland seeks to ensure that its diverse

communities can participate equally in civic life and access city services

designed to ensure the public’s safety and health without fear that coming

into contact with local government will result in deportation. In furtherance

of these goals, the City of Oakland has been a City of Refuge since July 8,

1986, and has repeatedly reaffirmed that status and its commitment to its

immigrant communities.6

3 About Us, County of Alameda, CA, available at https://www.acgov.org/about/ (last visited Nov. 7, 2018). 4 See Advanced Search: Place of Birth By Nativity and Citizenship Status — 2017 American Community Survey 1-Year Estimates, U .S. Census Bureau, available at https://factfinder.census.gov/faces/tableservices/jsf/pages/productview.xhtml?pid=ACS_17_1YR_B05002&prodType=table (last visited Nov. 7, 2018). 5 Estimates of unauthorized immigrant population, by metro area, 2014, Pew Research Center (Feb. 3, 2017), available at https://goo.gl/ZwBgda. 6 Oakland Resolution No. 63950, adopted July 8, 1986; Oakland Resolution No. 86498, adopted November 29, 2016; Oakland Resolution No. 87036, adopted January 16, 2018.


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• The County of Los Angeles is the largest county in the nation, with more

than 10.2 million residents.7 Nearly 3.5 million immigrants, comprising

35% of the County’s total population, call Los Angeles County home.8

Additionally, 57% of children in Los Angeles have a noncitizen parent.9 As

in Oakland, immigrants are an integral part of Los Angeles County’s

economic and cultural life, interwoven into the County’s social fabric as

neighbors, family, and friends. Whether at school, on the job, in church, or

at home, immigrants are indistinguishable from their native-born family

members and neighbors who have been granted citizenship or legal

permanent residence. By creating its Office of Immigrant Affairs and

pursuing immigration-focused programs and policies, Los Angeles County

has made engagement, integration, and cooperation with its immigrant

communities a top priority.

7 Facts About Los Angeles, Discover Los Angeles, 2017 L.A. Tourism & Convention Board (Dec. 15, 2017), available at https://goo.gl/KtVZWn. 8 Los Angeles, Center for the Study of Immigration Integration, USC Dornsife College Of Letters, Arts and Sciences, available at https://goo.gl/wzroXy (last visited Nov. 7, 2018). 9 Motion by Supervisor Hilda L. Solis, Protecting Los Angeles County Residents Regardless of Immigration Status (Dec. 6, 2016), at 1, available at https://goo.gl/oNczH5.


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• Home to a multi-cultural population of 1.9 million residents, the County of

Santa Clara is the most populous county in Northern California.10 In recent

years, the County of Santa Clara’s immigrant population has grown

significantly and now comprises approximately 38% of the region’s total

population, the highest share since the late 1800s.11 The County of Santa

Clara is responsible for providing essential services and safety-net programs,

including health care, law enforcement, emergency planning and response

services, care for the youth and elderly, and many other critical social

services to all residents, regardless of immigration status. The County of

Santa Clara has adopted policies and practices that reflect the judgment of its

elected officials and law enforcement agencies that assistance with federal

civil immigration enforcement would undermine the County’s ability to fight

crime and make the entire community less safe.

10 See Advanced Search: Annual Estimates of the Resident Population: April 1, 2010 to July 1, 2017 2017, U .S. Census Bureau, available at https://factfinder.census.gov/faces/tableservices/jsf/pages/productview.xhtml?pid=PEP_2017_PEPANNRES&prodType=table (last visited Nov. 7, 2018). 11 Proposed “Public Charge” Rule, County of Santa Clara, available at https://www.sccgov.org/sites/cco/public-charge/pages/home.aspx (last visited Nov. 7, 2018).


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This litigation involves the federal government’s challenge to three

California laws, including SB 54,12 which aim to promote public safety by limiting

state and local entanglement with federal immigration enforcement. SB 54, also

known as the California Values Act, manifests a commitment to integrating

immigrants into communities and promoting public safety, public health, and a

robust economy throughout the State. Amici share the State’s goals of protecting

the well-being of all Californians and offer a critical perspective on how state and

local jurisdictions are best equipped to address the unique needs of their

communities, and thus have a strong interest in the resolution of this appeal in

favor of California.

In the proceedings below, the district court properly found that SB 54

protects the State’s residents in a manner consistent with federal law and denied the

federal government’s motion to preliminarily enjoin SB 54.13 The careful

delineation of state and federal powers is precisely what the Constitution requires,

and what Amici’s considered judgment respects. And, as extensive research

studies show, jurisdictions adopting policies similar to those of the State and

Amici—in which scarce local law enforcement resources are allocated to

12 Cal. Gov’t Code § 7284 et seq. (hereinafter “SB 54”). 13 United States v. California, 314 F. Supp. 3d 1077, 1108–12 (E.D. Cal. 2018).


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investigation of crimes, rather than enforcement of federal civil immigration

laws—have safer, healthier, and more economically resilient communities.

ARGUMENT

I. SB 54 REFLECTS CALIFORNIA’S CONSIDERED EXERCISE OF ITS HISTORIC POWER TO PROMOTE PUBLIC SAFETY, HEALTH, AND WELFARE

The United States Supreme Court has long emphasized that local control

over the health and safety of residents ensures that matters “‘concern[ing] the lives,

liberties, and properties of the people’” are determined “by governments more

local and more accountable than a distant federal bureaucracy.”14 Enshrined in the

Constitution and a core part of American democracy ever since, local control

respects the “historic police powers of the States.”15 Local governments and

officials have “wide discretion in determining [their] own public policy and what

measures are necessary for [their] own protection and properly to promote the

safety, peace and good order of [their] people.”16 California counties and cities

likewise possess the power to enforce “all local, police, sanitary, and other

14 Nat’l Fed’n of Indep. Bus. v. Sebelius, 567 U.S. 519, 536 (2012) (quoting The Federalist No. 45, at 293 (J. Madison)). 15 Rice v. Santa Fe Elevator Corp., 331 U.S. 218, 230 (1947); see also United States v. Morrison, 529 U.S. 598, 618 (2000) (noting there is “no better example of the police power, which the Founders denied the National Government and reposed in the States, than the suppression of violent crime and vindication of its victims”). 16 Terrace v. Thompson, 263 U.S. 197, 217 (1923).


7

ordinances and regulations not in conflict with general laws.”17 SB 54 fits well

within these established constitutional principles, aiming to “ensure effective

policing, to protect the safety, well-being, and constitutional rights of the people of

California, and to direct the state’s limited resources to matters of greatest concern

to state and local governments.”18 Exercising its police powers over public safety,

the State determined that indiscriminately devoting local resources to federal civil

immigration enforcement is detrimental to trust between law enforcement and

communities it serves and, therefore, to public safety.19 California’s laws reflect

17 Cal. Const. Art. XI, § 7. 18 Cal. Gov’t Code § 7284.2(f). The federal government is fully aware that effective local policing requires local control over law enforcement policy decisions. The federal government supports state and local governments’ exercise of such discretion when it proves politically expedient. Indeed, just last year, in an attempt to justify his decision to rescind consent decrees between the Justice Department’s Civil Rights Division and local police departments—a decision Amici in no way condone—then Attorney General Sessions touted the importance of local control over law enforcement decisions, writing that addressing rising crime rates and securing public safety “are, first and foremost, tasks for state, local, and tribal enforcement,” and that “[l]ocal control and local accountability are necessary for effective local policing. It is not the responsibility of the federal government to manage non-federal law enforcement agencies.” Memorandum for Heads of Department Components and United States Attorneys: Supporting Federal, State, Local, and Tribal Law Enforcement, Off. of Att’y Gen. (Mar. 31, 2017), available at https://www.justice.gov/opa/press-release/file/954916/download. This lawsuit turns that position on its head. 19 See generally Cal. Gov’t Code § 7284.2(a)–(e) (detailing legislative findings that building trust with immigrant communities furthers law enforcement objectives, that “entangling” state agencies with federal immigration enforcement diverts local


8

sound public policy: here, the State concluded, as had many California localities

prior to the passage of SB 54 (including Amici), that local involvement in federal

immigration enforcement would be harmful to the safety and well-being of its

residents, including—but, as the next Part details, not limited to—the nearly 2.6

million undocumented immigrants who reside and participate in communities

throughout California.20

Sound public policy and longstanding Supreme Court precedent protects—

and indeed endorses—state and local governments’ exercise of discretion to direct

their own law enforcement resources when it comes to the health and safety of

their residents.

II. THE FEDERAL GOVERNMENT’S ATTEMPTED COERCION OF LOCAL IMMIGRATION ENFORCEMENT UNDERMINES PUBLIC SAFETY BY DISCOURAGING COMMUNITY ORIENTED POLICING AND CIVIC PARTICIPATION BY IMMIGRANTS

The federal government’s attempt to coerce California—and its localities —

to comply with its preferred immigration enforcement agenda harms Amici in two

distinct ways: First, it erodes community trust in law enforcement, thereby

reducing community cooperation and making it more difficult for local sheriffs,

resources and blurs lines of accountability, and that state and local participation would create constitutional concerns). 20 See Joseph Hayes and Laura Hill, Undocumented Immigrants in California, Public Policy Institute of California (March 2017), available at https://goo.gl/41CVyK.


9

police officers, and prosecutors to effectively protect the public from crime; and

second, it discourages immigrant communities from fully participating in our

economies and communities, thus resulting in worse public health outcomes for all.

A. State and Local Control of Law Enforcement Is Integral to Promoting Public Safety and Fostering Trust Between Immigrant Communities and Police

Law enforcement officials throughout California and the nation agree that

building community trust is integral to promoting public safety.21 California, like

many Amici, has acted on that principle, enacting laws—particularly SB 54—

aimed at encouraging community cooperation and participation in the criminal

justice system to hold criminals accountable and promote justice for all.

Amici recognize the importance of building and maintaining trust between

police and immigrants. If immigrants fear that interaction with law enforcement

may lead to deportation for themselves or a loved one, they are less likely to assist

law enforcement as witnesses and/or victims, and public safety will suffer.22 These

21 See, e.g., Int’l Ass’n of Chiefs of Police, IACP National Policy Summit on Community-Police Relations, (Jan. 2015), 11, https://www.theiacp.org/sites/default/files/2018-09/CommunityPoliceRelationsSummitReport_web.pdf 22 See, e.g., Craig E. Farrell, Jr. et al., M.C.C. Immigration Committee Recommendations For Enforcement of Immigration Laws by Local Policy Agencies, Major Cities Chiefs Ass’n 5–6 (2006) (“Immigration enforcement by local police would likely negatively affect and undermine the level of trust and cooperation between local police and immigrant communities….”).


10

concerns are not theoretical, as both legislators and courts have recognized.23

Regardless of immigration status, all community residents serve an important role

in assisting local law enforcement and the justice system—state and local

governments should not be forced to participate in a federal immigration

enforcement agenda that ignores community safety and well-being. Amici’s

collective experience makes clear that trust between law enforcement and the

communities they are sworn to protect is weakened when local law enforcement

officers are viewed as de facto immigration enforcers.

The district court recognized as much in its order denying a preliminary

injunction, explaining that the mere perception of cooperation with federal

immigration enforcement threatens to eviscerate the trust that enables law

enforcement to protect the community.24 For this reason, the court ruled that it was

“entirely reasonable” for California to determine that “assisting immigration

23 For example, a federal judge in the Northern District of California recently found that “[t]he harm that entanglement with immigration enforcement does to community trust is more than theoretical….” City & Cty. of San Francisco v. Sessions, No. 17-04642-WHO, 2018 WL 4859528, at *15 (N.D. Cal. Oct. 5, 2018). In a similar vein, maintaining trust between employers and employees is critical to ensuring that immigrants’ rights are protected in the workplace. As members of the Legislature recognized in analyzing AB 450, the threat of immigration raids in the workplace “decreases the likelihood that workers will report labor violations or exercise workplace rights.” See State of Cal. Assembly Comm. on Judiciary, Employment Regulation: Immigration Worksite Enforcement Issues, A.B. 450 (Apr. 25, 2017), at 5. 24 United States v. California, 314 F. Supp. 3d at 1108.


11

enforcement in any way” was a detrimental use of its limited law enforcement

resources.25

1. Research confirms sanctuary policies’ positive effect on public safety

Sanctuary policies26 like SB 54 do more than reinforce community trust;

they make communities safer. Studies confirm that jurisdictions with policies

limiting their participation in immigration enforcement have comparatively lower

crime rates than those without such policies. The Center for American Progress

found that counties with sanctuary policies had statistically significant lower crime

than other counties—on average 35.5 fewer crimes committed per 10,000 people.27

A recent longitudinal analysis published in the interdisciplinary journal

Criminology analyzed the effect of unauthorized immigration on violence between

1990 and 2014 and concluded that undocumented immigration is generally

associated with decreasing violent crime.28 Another study found that higher

25 Id. 26 As used herein, “sanctuary laws” or “sanctuary policies” encompasses the broad range of policies, laws, or regulations that state or local governments may implement, consistent with the police powers reserved to them under the Constitution, aimed at limiting local entanglement with federal civil immigration enforcement efforts and serving to promote public health, safety, and well-being throughout their communities. 27 Tom Wong, The effect of sanctuary policies on crime and the economy, Center for American Progress (Jan. 26, 2017), available at https://goo.gl/UFUtnk. 28 Michael Light and Ty Miller, Does Undocumented Immigration Increase Violent Crime?, 56 Criminology 370, 370 (2018), available at https://goo.gl/YJbs2V.


12

immigrant concentrations were associated with reduced homicide rates and

reduced robbery rates.29 In cities that limited local enforcement of federal

immigration laws, this correlation was even stronger.30 Other studies have found

that certain cities with the lowest levels of targeted immigration enforcement have

statistically significant reductions in larceny (by 2-3%) and motor vehicle theft (by

5-6%).31 Indeed, contrary to the federal government’s rhetoric,32 immigrants are in

fact less likely to commit crimes and be incarcerated than American-born

29 Christopher Lyons et al., Neighborhood immigration, violence, and city-level immigrant political opportunities, 78 Am. Sociological Rev. 604, 615–17, 620 (2013). The National Neighborhood Crime Study (NNCS) compiled crime and sociodemographic data for census tracts in a representative sample of large United States cities for 2000 and was funded by the National Science Foundation. See Ruth D. Peterson and Lauren J. Krivo, National Neighborhood Crime Study (NNCS), Inter-university Consortium for Political and Social Research (2000), available at https://www.icpsr.umich.edu/icpsrweb/RCMD/studies/27501/summary. 30 Lyons supra n.29, at 617. 31 Elina Treyger et al., Immigration Enforcement, Policing, and Crime, 13 Criminology 285, 305–06 (2014) (for the list of 335 included cities, see Appendix 1). 32 See, e.g., Salvador Rizzo, Trump’s Claim that Immigrants Bring ‘Tremendous Crime’ Is Still Wrong, Wash. Post (Jan. 18, 2018), available at https://www.washingtonpost.com/news/fact-checker/wp/2018/01/18/trumps-claim-that-immigrants-bring-tremendous-crime-is-still-wrong/?utm_term=.a4992907a1ee.


13

individuals; specifically, undocumented immigrants are 44% less likely to be

incarcerated compared with native-born citizens.33

These studies are not flukes, nor are their results accidental. When large

populations of undocumented immigrants “fear[] that interaction with police leads

to arrest and deportation, they will be reluctant to report crimes, make statements,

or testify in court. This chilling effect leaves cities less safe for everyone.”34 For

example, in an ongoing 2018 survey of undocumented individuals in San Diego,

26.6% of undocumented immigrants reported being “a great deal” or “a lot” less

likely to trust that police officers and sheriffs would keep them and their families

safe “if local law enforcement officials ‘were working together with ICE.’”35 And

22.9% were “a great deal” or “a lot” less likely to trust that police officers would

keep their communities safe “if local law enforcement officials ‘were working

together with ICE.’”36 By contrast, sanctuary policies allow local governments to

create a virtuous upward “spiral of trust” that fosters communications between 33 Michelangelo Landgrave and Alex Nowrasteh, Criminal Immigrants: Their Numbers, Demographics, and Countries of Origin, CATO Institute, Immigration Research and Policy Brief No. 1 (Mar. 15, 2017), at 2, available at https://goo.gl/PqQtmR. 34 Angela S. Garcia, The Sanctuary Cities Debate, University of Chicago, 23 SSA Magazine 1 (2016), available at https://goo.gl/tnZU2f. 35 Declaration of Tom K. Wong at ¶¶ 41–44, California v. Sessions, No. 17-04701, ECF 116-4 (N.D. Cal. July 7, 2018). 36 Id.


14

government officials and immigrants, reduces social isolation and cynicism toward

government, and increases neighborhood attachment.37 This social cohesion and

“collective efficacy” has been associated with reduced violence and greater

stability, which makes communities generally safer for all.38

It is well-documented that as immigration enforcement and the threat of

deportation increase, the likelihood of undocumented immigrants reporting crimes

decreases significantly.39 For example, a 2017 survey of Mexican nationals in

San Diego, revealed that 60.8% of undocumented immigrants are less likely to

report a crime they witness to police if local law enforcement officials “were

working together with ICE.”40 Similarly, in a 2013 survey, 67% of undocumented

37 Lyons, supra n.29, at 609–10. 38 Robert Sampson et al., Neighborhoods and Violent Crime: A Multilevel Study of Collective Efficacy, Science Magazine (Aug. 15, 1997), available at https://goo.gl/BgMim4. 39 See, e.g., Chuck Wexler, Police chiefs across the country support sanctuary cities because they keep crime down, L.A. Times (Mar. 6, 2017), available at https://goo.gl/Fut52T. 40 Tom Wong, Sanctuary Cities don’t ‘breed crime.’ They encourage people to report crime, Wash. Post (Apr. 24, 2018), available at https://www.washingtonpost.com/news/monkey-cage/wp/2018/04/24/sanctuary-cities-dont-breed-crime-they-encourage-people-to-report-crime/?noredirect=on&utm_term=.9a22bfea81c1; see also Declaration of Tom K. Wong, supra n. 35 at ¶ 35. In the same survey, approximately 70% of undocumented immigrants stated they were more likely to report when they are the victim of a crime or witness a crime if law enforcement officials say they will NOT work with ICE. Declaration of Tom K. Wong, supra n. 35 at ¶ 36.


15

individuals reported that they were less likely to offer information to law

enforcement as a witness if they feared officers would inquire about their or others’

immigration status.41 Seventy percent reported being less likely to contact law

enforcement authorities even if they were victims of a crime.42 A recent report

from Princeton demonstrates immigration policy’s tangible effect on crime

reporting data. The report analyzed crime data from the Dallas Police Department

and found that during the Priority Enforcement Program, which limited ICE’s

enforcement priorities to individuals who threatened public safety, there was

roughly a 10% increase in police reports filed by Hispanic individuals.43 These

41 Nik Theodore, Insecure Communities: Latino Perceptions of Police Involvement in Immigration Enforcement, Univ. of Ill. Chicago (May 2013), at 5–6, available at https://www.policylink.org/sites/default/files/INSECURE_COMMUNITIES_REPORT_FINAL.PDF. 42 Id.; see also Randy Capps et al., Delegation and Divergence: A Study of 287(g) State and Local Immigration Enforcement, Migration Policy Institute 43 (Jan. 2011) (study that looked at the impact of 287(g) of the Immigration and Nationality Act on seven counties and found that in four of the counties that were involved in traffic operations, “community respondents were especially likely to report that immigrants were venturing into public places with less frequency, failing to report crimes or interact with police, interacting less with schools and other institutions, patronizing local businesses less often, and changing their driving patterns.”). 43 Elisa Jácome, The Effect of Immigration Enforcement on Crime Reporting: Evidence from the Priority Enforcement Program, at 13 (Princeton U. Indus. Rel. Sec. Working Paper No. 624, 2018), https://dataspace.princeton.edu/jspui/handle/88435/dsp018p58pg70r


16

results suggest that when individuals’ fears of immigration enforcement are

reduced, trust between immigrant communities and law enforcement increases.44

Law enforcement officials have also been clear about the detrimental effects

that immigration entanglement causes in their communities. In a survey conducted

by the Police Foundation, responding law enforcement personnel and public

officials widely reported that aggressive enforcement of immigration law would

decrease community trust of police (74% of respondents), trust between

community residents (70%), and reporting of crime victimization (85%) and

criminal activity (83%).45 Another recent Police Foundation survey showed that

more than 70% of police chiefs reported that immigrants in their communities are

somewhat or much less likely to contact law enforcement when they are victims of

or witnesses to crime.46 Finally, a 2018 study conducted by the National

Immigrant Women’s Advocacy Project found that approximately 40% of the 232

law enforcement officials who responded confirmed that “federal immigration

policies have affected their relationships with immigrant communities in 2017

44 Id. at 24. 45 Anita Khashu, The Role of Local Police: Striking a Balance Between Immigration Enforcement and Civil Liberties, Police Foundation (Apr. 2009), at 24, available at https://goo.gl/DoKdWs. 46 Scott H. Decker et al., Immigration and Local Policing: Results from a National Survey of Law Enforcement Executive, Police Foundation (June 2015), at 174, available at https://goo.gl/WsPwsh.


17

compared with 2016, and 71% said that because immigrants face barriers to

engaging with law enforcement, officers were less able to hold criminals

accountable.”47

The current federal Administration’s immigration enforcement priorities

have had stark effects on public safety in California. In the first three months of

2017, reports of sexual assault among the Latino population in the City of Los

Angeles declined 25%, and domestic-violence reports dropped 10%.48 At the same

time, reporting among non-Latino victims was virtually unchanged.49 The City of

Los Angeles Police Department attributes this troubling drop in reporting to

deportation fears in the Latino community.50 Empirical evidence supports the

47 Bernice Yeung, Police: Immigration Policies Making It Harder to Catch Criminals, RevealNews.Org (Feb. 5, 2018), available at https://goo.gl/hNMaBW. 48 See Sarah Stillman, When Deportation Is a Death Sentence, The New Yorker (Jan. 15, 2018), available at https://goo.gl/4s1P6N. 49 Id. 50 L.A. Police Dep’t., Decline in Reporting of Crime Among Hispanic Population, (Mar 21, 2017) available at http://www.lapdonline.org/home/news_view/61998#. Conversely, the diligent efforts by the Department to communicate its commitment to the undocumented community had a positive effect on community trust. This year, the Department issued a new press release describing its intentional outreach to immigrant communities following the 2016 presidential election. The Department made clear its position to not question residents for the sole purpose of determining immigration status (Special Order 40). Since then, the gap between the Latino community and citywide reporting of sexual assaults decreased to under 4% and the gap for domestic violence reporting decreased to 0.4%. L.A. Police Dep’t., Statement on Sexual Assault and Domestic Violence Reporting in


18

Department’s conclusion. For example, a 2017 survey of Latino immigrant

populations in the mid-Atlantic found that, due to the recent immigration climate,

almost 30% of participants “very often” or “always” avoid contact with police;

39.4% avoided medical care, police, and services; and 47.6% warned their children

to stay away from authorities.51

The United States Department of Justice (“DOJ”) itself has previously

recognized what these studies make clear—that federal immigration entanglement

in state and local law enforcement negatively affects community safety. In 2015, a

DOJ Task Force released a report that recommended “[d]ecoupl[ing] federal

immigration enforcement from routine local policing” in an effort to build

relationships of trust with immigrant communities.52 DOJ has further described

how “[c]ultural and language barriers, immigrants’ fear of deportation or detention,

Immigrant Communities, (Apr. 27, 2018), available at http://www.lapdonline.org/newsroom/news_view/63831. 51 Kathleen M. Roche et al., Impacts of Immigration Actions and News and the Psychological Distress of U.S. Latino Parents Raising Adolescents, 62 J. Adolescent Health 525, 528–29 (2018), available at https://www.jahonline.org/article/S1054-139X(18)30054-5/pdf. 52 Final Report of the President’s Task Force on 21st Century Policing, President’s Task Force on 21st Century Policing at 18, Office of Community Oriented Policing Services (May 2015), available at https://goo.gl/SJXSaL.


19

and immigrants’ mistrust of law enforcement are some of the factors that can

challenge police-immigrant relations” to the detriment of public safety.53

In reaching these conclusions, the DOJ-sponsored study drew directly from

state and local experiences that show fear of deportation leads to underreporting of

crime, failure to access needed government services, and refusal to cooperate with

criminal prosecutions.54 Even for some immigrant victims who had the courage to

report crime, the fear of deportation ultimately interfered with their cooperation in

prosecutions.55 As a result of this reality, the Law Enforcement Immigration Task

Force, comprised of many state and local law enforcement officials from across the

country, determined in a 2017 letter to Congress that state and local law

enforcement “can best serve [their] communities by leaving the enforcement of

immigration laws to the federal government.”56

53 Community Policing Dispatch, Office of Community Oriented Policing Services (Feb. 2013), available at https://goo.gl/RfdtXC. 54 See generally Pradine Saint-Fort et al., Engaging Police in Immigrant Communities (Oct. 2012), available at https://storage.googleapis.com/vera-web-assets/downloads/Publications/engaging-police-in-immigrant-communities-promising-practices-from-the-field/legacy_downloads/engaging-police-in-immigrant-communities.pdf (a study funded by the Office of Community Oriented Policing Services). 55 Id. at 40. 56 See Letter from Law Enforcement Immigration Task Force to Congress (June 28, 2017), available at https://goo.gl/Pn94ai.


20

2. Courts recognize that entanglement between local law enforcement and federal immigration enforcement does not lead to safer communities

Based on the policies and evidence before them, courts in California and

across the country agree that when local law enforcement are perceived to be

entangled with federal immigration enforcement, it can irreparably damage a

community’s trust in local law enforcement and jeopardize public safety.57

Analyzing the evidence, these courts have rejected the federal government’s

rhetoric that sanctuary policies lead to more crime. In fact, the opposite is true.

The district court here considered the arguments, experience, and studies

proffered by the parties and amici. On this record, the court found that cooperation

with federal immigration enforcement negatively affects local law enforcement’s

relationship with immigrant communities and hampers officers’ ability to respond

to emergencies and prevent crime.58 The district court agreed with California and

supporting amici that even the perception that California is cooperating with

immigration authorities threatens to upend the “delicate” relationship between law

enforcement and the community.59

57 See City of Chicago v. Sessions, 888 F.3d 272 (7th Cir. 2018), vacated in part by, No. 17-2991, 2018 WL 4268817 (7th Cir. June 4, 2018); City & Cty. of San Francisco, 2018 WL 4859528, at *15; City of Philadelphia v. Sessions, 309 F. Supp. 3d 289 (E.D. Pa. 2018). 58 United States v. California, 314 F. Supp. 3d at 1108. 59 Id. (emphasis added).


21

Other courts have reached similar conclusions. As the current federal

Administration seeks to defend its position that states should assist with federal

immigration objectives, courts have repeatedly refused to credit DOJ’s arguments.

For example, in City of Chicago v. Sessions, the Seventh Circuit considered the

propriety of a preliminary injunction on new conditions on Byrne JAG law

enforcement grants that require grant recipients to cooperate with federal

immigration enforcement.60 The Seventh Circuit upheld the injunction, explaining

that the purported “choice” between assisting federal immigration officers or

receiving critical funding left Chicago in an unwinnable position that put its

relationship with immigrant communities at risk.61 In a similar case, a district

60 City of Chicago, 888 F.3d at 276. After a complicated procedural history, the majority of this opinion remains in effect. Although the court vacated Part IV of its opinion, which upheld the nationwide scope of the preliminary injunction, the remainder of its opinion was not vacated. 2018 WL 4268817 (7th Cir. June 4, 2018); 2018 WL 4268814 (7th Cir. Aug. 10, 2018). Indeed, the Seventh Circuit denied DOJ’s motion to vacate Parts I through III of the opinion as moot. See Order Den. Mot. to Vacate, City of Chicago v. Sessions, No. 17-2991 (7th Cir. Aug. 29, 2018). However, on July 27, 2018, the district court entered a permanent injunction, which DOJ has appealed—presenting the Seventh Circuit with a new opportunity to consider these arguments. See City of Chicago v. Sessions (City of Chicago II), No. 18-2885 (7th Cir. Aug. 28, 2018). 61 City of Chicago, 888 F.3d at 281. Although the preliminary injunction was vacated, see n.60 supra, the Northern District of Illinois relied on similar arguments to instate a permanent injunction. City of Chicago v. Sessions, 321 F. Supp. 3d 855, 877–78 (N.D. Ill. 2018) (“[T]his Court finds that Chicago’s compliance with the Conditions would damage local law enforcement’s relationship with immigrant communities and decrease the cooperation essential to prevent and solve crimes both within those communities and Chicago at large.


22

court in the Northern District of California found that DOJ failed to show “any

demonstrable linkage” between “allowing local government to maintain

immigration confidentiality” and any purported decline in community safety.62

By contrast, states and localities have established evidence, backed by

independent research and practical experience, that promoting community trust

furthers important safety objectives. As a federal judge in the Northern District of

California recently recognized, “in contrast to DOJ’s unsubstantiated view,”

California has established that cooperation with immigration enforcement has a

concrete, negative impact on its law enforcement efforts.63 In City of Philadelphia

v. Sessions, the court explained that Philadelphia’s sanctuary policies benefit all

residents in the community, noting that “the policies [the city] has implemented

encourage immigrants to seek medical services that prevent the spread of

communicable diseases, report crime, and apprehend criminal suspects who may

recidivate and harm other residents.”64

Trust once lost is not easily restored, and as such, this is an irreparable harm for which there is no adequate remedy at law.”). 62 City & Cty. of San Francisco, 2018 WL 4859528, at *25. 63 Id. at *26 (citing studies that show Latinos (including U.S. born Latinos) and undocumented immigrants are less likely to contact police when police are perceived to be cooperating with immigration enforcement). 64 City of Philadelphia v. Sessions, 280 F. Supp. 3d 579, 623 (E.D. Pa. 2017). The court later granted a permanent injunction and specifically affirmed the analysis in


23

In short, several courts facing similar legal issues and factual records have

concluded that communities are safer when local governments avoid entanglement

with federal immigration enforcement—a conclusion borne out by empirical

evidence.

B. State and Local Sanctuary Policies Promote the Health and Welfare of California Residents

In addition to promoting public safety, states and localities have relied upon

their broad police powers to implement policies, which, in lawmakers’ considered

judgment, advance public health and improve the public welfare.65 Indeed, like the

State itself,66 numerous counties, cities, and towns in California have adopted

“sanctuary” laws or policies to promote public health, safety, and well-being in

their respective jurisdictions. Research confirms that these sanctuary policies

support the public health and economic welfare of California cities and counties.

its preliminary injunction order. City of Philadelphia v. Sessions, 309 F. Supp. 3d at 323. 65 See, e.g., Gonzales v. Oregon, 546 U.S. 243, 300 (2006) (Thomas, J., dissenting) (protection of public health and safety is generally enforced through state and local police powers). 66 For example, the legislative findings of SB 54 explain that a “relationship of trust” between immigrants and state and local agencies is central to the “public safety of the people of California” and is threatened by entanglement with immigration enforcement, with the result that “immigrant community members fear approaching police when they are victims of, and witnesses to, crimes, seeking basic health services, or attending school.” Cal. Gov’t Code § 7284.2(b)-(d).


24

1. Sanctuary policies support improved public health

Sanctuary policies support public health and safety goals by ensuring access

to and encouraging utilization of basic healthcare services, which improve public

health outcomes for entire communities. The disparities in access to care and care

utilization based on lawful immigration status are well documented.67

Undocumented immigrants and their family members are less likely to use

government services, including health care, due in large part to fear that their

interactions with healthcare providers, insurers, or government entities will lead to

deportation.68 Increased immigration enforcement and community perception

about the heightened risk of enforcement only serves to further reduce use of these

services.69 In fact, under the current federal Administration’s enhanced

67 Helen B. Marrow, The power of local autonomy: expanding health care to unauthorized immigrants in San Francisco, 35 Ethnic & Racial Stud. 72, 73 (2012); see also Sheyda M. Aboii, Undocumented Immigrants and the Inclusive Health Policies of Sanctuary Cities, Harvard Pub. Health Rev. (2014) (noting that undocumented immigrants are less likely to be insured and that few undocumented immigrants have a primary care physician or first point-of-contact in the healthcare system aside from the emergency room). 68 See, e.g., Aboii, supra n. 67. 69 See, e.g., Tara Watson, Inside the Refrigerator: Immigration Enforcement and Chilling Effects in Medicaid Participation, 6 Am. Econ. J.: Econ. Pol’y 313 (2014) (finding heightened immigration enforcement reduces Medicaid participation by eligible children of noncitizens); Karen Hacker et al., The impact of Immigration and Customs Enforcement on immigrant health: Perceptions of immigrants in Everett, Massachusetts, USA, 73 Soc. Sci. & Med. 586, 591–92 (2011); Russell B. Toomey et al., Impact of Arizona’s SB 1070 Immigration Law on Utilization of


25

immigration enforcement regime, hospitals and clinics that serve immigrant

communities around the country have noted downturns in appointments and

increased cancellations.70

Sanctuary policies allow localities, like Amici, that provide health care and

other social services through public health departments and safety-net hospitals

(i.e., hospitals that treat patients in need regardless of ability to pay), to address

these disparities in public health.71 For example, to combat the fears that often

keep undocumented immigrants from seeking health care, providers in localities

with sanctuary policies use “buffering” strategies, such as (i) advertising “safe”

spaces where information regarding immigration status will not be collected in a

manner inconsistent with state or federal law, or (ii) having individual

conversations to reassure applicants that they will not be asked about their status

except as required by state or federal law.72 Such strategies allow healthcare

Health Care and Public Assistance Among Mexican-Origin Adolescent Mothers and Their Mother Figures, 104 Am. J. Pub. Health S28 (2014). 70 Jan Hoffman, Sick and Afraid, Some Immigrants Forgo Medical Care, N.Y. Times (June 26, 2017), available at https://www.nytimes.com/2017/06/26/health/undocumented-immigrants-health-care.html; Brianna Ehley et al., Fearing Deportation, Immigrants Forgo Medical Care, Politico (July 17, 2017), available at https://www.politico.com/story/2017/07/17/deportation-fears-under-trump-have-immigrants-forgoing-medical-care-240635. 71 Marrow, supra n.67, at 74, 84. 72 Id. at 79.


26

providers to foster trust with their patients and provide much needed medical care

to a traditionally underserved segment of the community.

Public health strategies, by their nature, are only successful when they

address the needs of entire communities. As history demonstrates, the exclusion of

any segment of the community from screening services related to sexual health,

disease prevention, or prenatal care can have significant consequences on the

greater community.73 Mistrust of community institutions leads immigrant groups

to avoid health care for communicable diseases and makes it “difficult to maintain

the public’s health.”74 By improving access to and utilization of healthcare

services to undocumented immigrants and their families, sanctuary policies have

salutary effects on the health and well-being of the community as a whole.75

73 One example includes the plague outbreaks that swept through San Francisco at the beginning of the twentieth century. Public health officials discriminated against residents of San Francisco’s Chinatown district during the epidemic abatement, which led to a larger health crisis than had healthcare officials adopted a public health strategy addressing the needs of all communities. See generally Jacqueline Fox, Zika and the Failure to Act Under the Police Power, 49 Conn. L. Rev. 1211, 1222 n.51, 1224 (May 2017); Judith Walzer Leavitt, Chinatown, N.Y. Times (Apr. 27, 2003), available at https://goo.gl/s1Ce4s. 74 Hacker et al., supra n. 69, at 592. 75 Recent research suggests that undocumented immigration may be associated directly with reductions in public health concerns. For example, one study found that increased undocumented immigration was associated with statistically significant decreases in drug arrests, drug overdose deaths, and DUI arrests. Michael L. Light et al., Undocumented Immigration, Drug Problems, and Driving


27

2. Jurisdictions adopting sanctuary policies promote stronger economies

Research strongly suggests that “when local law enforcement focuses on

keeping communities safe, rather than becoming entangled in federal immigration

enforcement efforts, communities are safer and community members stay more

engaged in the local economy. This in turn brings benefits to individual

households, communities, counties, and the economy as a whole.”76 A notable

study by the Center for American Progress found that “economies are stronger in

sanctuary counties—from higher median household income, less poverty, and less

reliance on public assistance to higher labor force participation, higher

employment-to-population ratios, and lower unemployment.”77 On average,

median household income is $4,353 higher in counties with sanctuary policies or

laws than in counties without such policies.78

State and local governments’ attempts to improve the economic status of

their residents through limited immigration enforcement is a guiding principle of

the general police power—the power for jurisdictions to decide which policies and

Under the Influence in the United States, 1990-2014, Am. J. Public Health (July 20, 2017). 76 Wong, supra n. 27. 77 Id. 78 Id.


28

practices will improve the lives of their residents and the safety of their

communities.

CONCLUSION

State and local governments are duty-bound to promote the safety and

welfare of all residents in their communities, regardless of immigration status. As

the Supreme Court has recognized, state and local governments are uniquely suited

for the task given their intimate knowledge of and close connection to their diverse

communities. Here, California exercised its sovereign duty to promote public

safety and well-being. This Court should affirm the denial of the preliminary

injunction and reject the federal government’s attempt to prevent the State from

“exercising [its] own judgment in an area to which States lay claim by right of

history and expertise.”79 Consistent with long-standing precedent and

constitutional principles, state and local governments are best able and most

accountable to determine the policies that will best protect their communities, not

the federal government. Law enforcement officials and prosecutors, independent

social science experts, and courts around the nation that have considered this issue

have all concluded that sanctuary policies like those at issue on this appeal will

protect, serve, and advance the interests of the entire community better than

79 United States v. Lopez, 514 U.S. 549, 583 (1995) (Kennedy, J., concurring).


29

coercing local public health and safety officials to act as federal immigration

policy enforcers.

For all these reasons and the reasons set forth in Defendants-Appellees’

brief, Amici respectfully request this Court affirm the district court’s denial of the

federal government’s motion for preliminary injunction.


30

Dated: November 9, 2018 MARGARET L. CARTER

DANIEL R. SUVOR O’Melveny & Myers LLP

By: /s/ Margaret L. Carter Margaret L. Carter

Attorneys for Amicus Curiae County of Los Angeles BARBARA J. PARKER Oakland City Attorney MARIA BEE ERIN BERNSTEIN MALIA MCPHERSON

By: /s/ Erin Bernstein Erin Bernstein

Attorneys for Amicus Curiae City of Oakland JAMES R. WILLIAMS Santa Clara County Counsel GRETA S. HANSEN KAVITA NARAYAN JAVIER SERRANO

By: /s/ Javier Serrano Javier Serrano

Attorneys for Amicus Curiae County of Santa Clara


31

LIST OF AMICI CURIAE

County of Alameda, California

City of Albany, California

City of Berkeley, California

City of Chula Vista, California

County of Contra Costa, California

City of Culver City, California

City of Cupertino, California

City of Davis, California

City of East Palo Alto, California

City of Los Altos, California

County of Los Angeles, California

County of Marin, California

City of Milpitas, California

City of Monte Sereno, California

County of Monterey, California

City of Morgan Hill, California

City of Mountain View, California

City of Oakland, California

City of Palm Springs, California

City of Pomona, California

City of Richmond, California

City of Sacramento, California

City of San Diego, California

City of San José, California

County of Santa Clara, California

County of Santa Cruz, California

City of Santa Monica, California

Mayor Michael Tubbs, City of

Stockton, California

City of West Hollywood, California


32

ADDITIONAL COUNSEL FOR AMICI CURIAE

Donna R. Ziegler County Counsel, County of Alameda

1221 Oak Street, Suite 450 Oakland, CA 94612

Attorney for the County of Alameda, California

Charles J. McKee County Counsel, County of Monterey

168 West Alisal St, 3rd Fl Salinas, CA 93901

Attorney for the County of Monterey, California

Craig Labadie City Attorney, City of Albany

1000 San Pablo Avenue Albany, CA 94706

Attorney for the City of Albany, California

Donald A. Larkin City Attorney, City of Morgan Hill

17575 Peak Avenue Morgan Hill, CA 95037

Attorney for the City of Morgan Hill, California

Farimah Faiz Brown

City Attorney, City of Berkeley 2180 Milvia Street, 4th Floor

Berkeley, CA 94074

Attorney for the City of Berkeley, California

Jannie L. Quinn City Attorney, City of Mountain View

500 Castro St., 3rd Floor Mountain View, CA 94041

Attorney for the City of Mountain View, California

Glen Googins

City Attorney, City of Chula Vista 276 Fourth Avenue

Chula Vista, CA 91910

Attorney for the City of Chula Vista, California

Edward Z. Kotkin City Attorney, City of Palm Springs

3200 E. Tahquitz Canyon Way Palm Springs, CA 92262

Attorney for the City of Palm Springs, California


33

Sharon L. Anderson County Counsel, Contra Costa County

651 Pine Street, 9th Floor Martinez, CA 94553

Attorney for the County of Contra Costa,

California

Arnold Alvarez-Glasman City Attorney, City of Pomona

Alvarez-Glasman & Colvin 13181 Crossroads Parkway

North Suite 400 City of Industry, CA 91746

Attorney for the City of Pomona,

California

Carol Schwab City Attorney, City of Culver City

9770 Culver Boulevard Culver City, CA 90232

Attorney for the City of Culver City, California

Bruce Reed Goodmiller City Attorney, City of Richmond

450 Civic Center Plaza Richmond, CA 94804

Attorney for the City of Richmond, California

Rocio Fierro

Acting City Attorney, City of Cupertino 10300 Torre Avenue

Cupertino, CA 95014-3202

Attorney for the City of Cupertino, California

Susana Alcala Wood City Attorney, City of Sacramento

915 I Street, Fourth Floor Sacramento, CA 95814

Attorney for the City of Sacramento, California

Harriet Steiner

City Attorney, City of Davis Best Best & Krieger LLP

500 Capitol Mall, Suite 1700 Sacramento, CA 95814

Attorney for the City of Davis, California

Mara W. Elliot City Attorney, City of San Diego

1200 Third Ave., Suite 1620 San Diego, CA 92101

Attorney for the City of San Diego, California


34

Rafael E. Alvarado Jr. City Attorney, City of East Palo Alto

2415 University Ave. East Palo Alto, CA 94303

Attorney for the City of East Palo Alto, California

Richard Doyle City Attorney, City of San Jose

200 East Santa Clara St., 16th Floor San Jose, CA 95113

Attorney for the City of San Jose, California

Christopher Diaz City Attorney, Cities of Los Altos and Milpitas

Best Best & Krieger LLP 2001 North Main St., Suite 390

Walnut Creek, CA 94596

Attorney for the City of Los Altos, California

and the City of Milpitas, California

Dana McRae County Counsel, County of Santa Cruz

701 Ocean Street, Room 505 Santa Cruz, CA 95060

Attorney for the County of Santa Cruz, California

Brian Washington County Counsel, County of Marin 3501 Civic Center Drive, Rm 275

San Rafael, CA 94903

Attorney for the County of Marin, California

Lane Dilg City Attorney, City of Santa Monica

1685 Main Street, Third Floor Santa Monica, CA 90401

Attorney for the City of Santa Monica, California

Kirsten Powell City Attorney, City of Monte Sereno

LOGAN & POWELL, LLP 15466 Los Gatos Blvd., Suite 109

Los Gatos, CA 95032

Attorney for the City of Monte Sereno, California

Michael Jenkins City Attorney, City of West Hollywood

Best Best & Krieger LLP 1230 Rosecrans Ave., Suite 110

Manhattan Beach, CA 90266

Attorney for the City of West Hollywood, California


35

CERTIFICATE OF COMPLIANCE

I certify that this document complies with the type-volume limitation set

forth in Federal Rules of Appellate Procedure 29(a)(5) & 32(a)(7)(B) and Circuit

Rule 32-1 because it contains 6,599 words, exclusive of the portions of the brief

that are exempted by Federal Rule of Appellate Procedure 32(f). I certify that this

document complies with the typeface requirements of Federal Rule of Appellate

Procedure 32(a)(5) and the type style requirements of Federal Rule of Appellate

Procedure 32(a)(6).


O’Melveny & Myers LLP


Attorney for Amicus Curiae County of Los Angeles


36

CERTIFICATE OF SERVICE

The undersigned hereby certifies that a copy of BRIEF OF AMICI CURIAE 29

CALIFORNIA COUNTIES, CITIES, AND LOCAL OFFICIALS was served on

November 9, 2018 via this Court’s ECF filing system, whereupon all counsel of

record were served.


O’Melveny & Myers LLP


Attorney for Amicus Curiae County of Los Angeles


united states of america, plaintiff-appellant, v... · 2018-11-09 · appeal no. 18- 16496 . united...

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