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The City of Philadelphia v. Sessions

United States District Court, E.D. Pennsylvania

June 6, 2018

THE CITY OF PHILADELPHIA
v.
JEFFERSON BEAUREGARD SESSIONS III, ATTORNEY GENERAL OF THE UNITED STATES

          MEMORANDUM

          Baylson, J.

         “no place indeed should murder sanctuarize.”

         Hamlet, Act 4, sc 7, II, 98 “nor sleep nor sanctuary.”

         Coriolanus, Act 1, sc II, 19-27

         “The privilege of sanctuary was as ancient as England itself and developed from a mixture of Hebrew, Greek, Roman, Anglo-Saxon, and Christian traditions.”

         Liberty to Misread: Sanctuary and Possibility in The Comedy of Errors Woodring, Vol. 28, Yale Journal of Law & the Humanities, 319, 320 (2017)

         TABLE OF CONTENTS

         I. INTRODUCTION AND LITIGATION HISTORY SUMMARY ......................................... 1

         II. SUMMARY OF FINDINGS .................................................................................................. 2

         III. FACTS ................................................................................................................................ 3

         A. Summary of Testimony at Trial .......................................................................................... 3

         1. Brian Abernathy .............................................................................................................. 3

         a) City Prisoner Information ......................................................................................... 4

         b) ICE Detainers ............................................................................................................ 6

         c) Advance Notice of Release ....................................................................................... 7

         d) Prison Access ............................................................................................................ 7

         2. Eva Gladstein .................................................................................................................. 8

         3. Julie Wertheimer ............................................................................................................. 9

         a) Section 1373 Issues ................................................................................................... 9

         b) City Criminal Justice Details .................................................................................. 11

         c) JAG Details ............................................................................................................. 12

         4. Matthew Gillespie ......................................................................................................... 13

         a) Memos - February 7, 2018 and April 23, 2018 ...................................................... 15

         5. Commissioner Ross ...................................................................................................... 16

         a) Training ................................................................................................................... 16

         b) Smart Policing ......................................................................................................... 17

         c) Budget ..................................................................................................................... 17

         d) Decrease in Crime ................................................................................................... 18

         6. David O'Neill ................................................................................................................ 18

         a) ICE Access to City Data ......................................................................................... 20

         b) Prisoner Interviews ................................................................................................. 21

         c) Custody Transfer ..................................................................................................... 22

         B. Findings of Fact ................................................................................................................ 23

         1. City Policies .................................................................................................................. 23

         2. City Law Enforcement Practices .................................................................................. 26

         3. Prison Access ................................................................................................................ 27

         4. Information Sharing ...................................................................................................... 27

         5. City Supports Cooperation with all Law Enforcement Agencies ................................. 33

         6. City Practices Re: ICE Request for Advance Notice of Release .................................. 36

         7. Conclusory Findings of Fact ......................................................................................... 37

         IV. CITY'S MOTION FOR ADOPTION OF JUDGE STRAWBRIDGE'S REPORT AND RECOMMENDATION ................................................................................................................ 41

         V. CROSS-MOTIONS FOR SUMMARY JUDGMENT AS TO COUNTS I-III .................... 44

         A. Parties' Contentions .......................................................................................................... 45

         B. Relevant Standards ............................................................................................................ 46

         1. Rule 56 Standard ........................................................................................................... 46

         2. Administrative Procedure Act ....................................................................................... 47

         C. Violation of the APA through Ultra Vires Conduct Not Authorized by Congress in the Underlying Statute (Count I) .................................................................................................... 47

         1. City of Chicago v. Sessions - 7th Circuit Decision ....................................................... 47

         2. Prior opinion of this Court: the Challenged Conditions are Ultra Vires ...................... 49

         D. Violation of Constitutional Separation of Powers (Count II) ........................................... 49

         E. Violation of the APA through Arbitrary and Capricious Agency Action (Count III) ...... 50

         1. The Administrative Record ........................................................................................... 52

         2. The Decision to Impose All Three Challenged Conditions Was Arbitrary and Capricious 53

         VI. SPENDING CLAUSE (COUNT IV) ................................................................................ 55

         VII. MURPHY V. NCAA AND THE TENTH AMENDMENT - COMMANDEERING ..... 56

         A. Review of Preliminary Injunction Opinion ....................................................................... 56

         B. Murphy v. NCAA ............................................................................................................. 58

         C. Effect of Murphy v. NCAA on Constitutionality of Section 1373 ................................... 61

         D. The First Alternative Conclusion re §1373 - The Text Supports the City's Contentions 65

         1. The Text of Section 1373 Does Not Require Compliance with the JAG Conditions... 65

         2. Cases Interpreting Section 1373: Bologna and Steinle ............................................... 66

         a) Bologna ................................................................................................................... 66

         b) Steinle ..................................................................................................................... 67

         3. Statutory Interpretation ................................................................................................. 67

         E. Second Alternative Conclusion re §1373 - The City Complies with the JAG Conditions 68

         1. Demore v. Kim, 538 U.S. 510, 513 (2003) ................................................................... 69

         2. Jennings and Dimaya .................................................................................................... 70

         3. City Complies with § 1373 ........................................................................................... 73

         VIII. STANDARD FOR PERMANENT INJUNCTION AND STANDARD OF REVIEW ... 78

         A. Permanent Injunction Standard ......................................................................................... 78

         B. Arguments of the Parties ................................................................................................... 79

         C. Injunctions Against Unconstitutional Grant Conditions ................................................... 79

         D. Irreparable Harm ............................................................................................................... 80

         IX. DECLARATORY JUDGMENT ...................................................................................... 84

         X. MANDAMUS ....................................................................................................................... 85

         XI. CONCLUSIONS OF LAW .............................................................................................. 88

         XII. CONCLUSION ................................................................................................................. 89

         I. INTRODUCTION AND LITIGATION HISTORY SUMMARY

         As sailors in Homer's “The Odyssey” seeking to avoid the mythical sea monsters Scylla and Charybdis as they travel to the island of Thrinacia, Philadelphia seeks to avoid having to confront the choice between two alternatives which it finds undesirable. To Philadelphia, Scylla represents compliance with a federal statute requiring that the City issue no guidance restricting its police and other officials from sharing information about the immigration status of City residents, while Charybdis represents $1.6 million that Philadelphia would use to provide vital resources to bolster its local criminal justice prerogatives. In Greek, this is referred to as SiArj/j/ja-a “dilemma, ” or a “double proposition”-which offers two unacceptable alternatives. Below, this Court lays out a full explanation of why Philadelphia need not make this “Hobson's Choice, ” and in any event, can steer safely to Thrinacia, accepting the $1.6 million without compromising its local objectives.

         The City of Philadelphia filed this lawsuit seeking to enjoin Defendant, United States Attorney General Jefferson Beauregard Sessions, III, from imposing three separate immigration-related conditions on the receipt of grant funds under the Edward Byrne Memorial Justice Assistance Grant (JAG) Program, a federal program providing financial assistance to states and cities for criminal justice. Under the Byrne program, grants are determined by a formula, and funds have already been appropriated by Congress. In fiscal year 2017, Philadelphia would have been entitled to $1.598 million, which it planned to allocate, among other things, to equipping police officers with Narcan to counteract opioid overdoses.

         The three conditions on Byrne grants the City challenges are as follows:

a. The City must provide to the U.S. Immigration and Customs Enforcement (ICE) access to City prisons to interview individuals of interest to ICE.
b. The City must provide advance notice to ICE of release from City prisons of aliens whose “scheduled release date and time” ICE requests.
c. The City must certify compliance with 8 U.S.C. § 1373, a statute which purports to prohibit the City from restrictions on disclosure of information as to the citizenship or immigration status of any “person.”

         The City also sought a declaration that it complied with 8 U.S.C. § 1373, as lawfully construed, and a writ of mandamus requiring the Attorney General to fund the City its full grant award. The City moved for a preliminary injunction (“PI”), and after an evidentiary hearing, the Court granted the injunction. City of Philadelphia v. Sessions, 280 F.Supp.3d 579 (E.D. Pa. 2017).[1] The 7th Circuit Court of Appeals has affirmed a similar PI entered by the Chicago district court, citing and relying on this Court's PI opinion.

         The Court then required the parties to engage in fact discovery, which took place, in part, under Judge David Strawbridge, appointed as a Master, who filed a Report and Recommendation, discussed below.

         Following a four-day trial and submission of post-trial briefs, this opinion makes findings of fact and conclusions of law on all issues and the Court will grant equitable relief, in favor of the City.

         II. SUMMARY OF FINDINGS

         1. The public statements of President Trump and Attorney General Sessions, asserting that immigrants commit more crimes than native-born citizens, are inaccurate as applied to Philadelphia, and do not justify the imposition of these three conditions.

         2. The Attorney General did not follow established law in promulgating the first two conditions.

         3. As to the third condition, certification of compliance with Section 1373, the Court finds:

a. The Attorney General did not follow established law in promulgating this condition;
b. The Supreme Court's recent opinion in Murphy v. NCAA renders it unconstitutional;

         4. The Court alternatively finds:

a. As to the first two conditions:
i. The City provides ICE access to City prisoners if the prisoner consents after being advised of their right to counsel;
ii. The City has agreed to give advance notice of release of criminal aliens if ICE secures a judicial order, which ICE can easily obtain by coordination with the United States Attorney's Office for this district.
b. The plain language of Section 1373 does not independently require the City to comply with the first two conditions; c. Nevertheless, the City complies or substantially complies with all three conditions.

         5. The City has proven it will suffer irreparable harm if the conditions are not enjoined.

         6. The City is entitled to prompt payment of the JAG funds.[2]

         III. FACTS

         A. Summary of Testimony at Trial

         1. Brian Abernathy

         Brian Abernathy, First Deputy Managing Director of the City of Philadelphia, testified that he is responsible for overseeing “everything you would think of as City government, ” including public safety, community services, and health and human services. (4/30/18, “Day 1 Tr.” 6:5-12). He oversees the Philadelphia Department of Prisons and the Police Department, which take up 50% or more of his time. (Id. 151:5-11). Throughout his testimony, he frequently described the need to establish trust with Philadelphia residents so that individuals feel free to report crimes and utilize City services, while at the same time maintaining the City's law enforcement relationship with ICE, with which it partners on a number of matters, including drugs and human trafficking. (Id. 11:9; 144:18-23). He is personally notified if an immigration detainer is lodged against an individual in city custody, and testified to reviewing some 165 immigration detainers since January 2017. (Id. 155:10-18).

         Mr. Abernathy testified to meeting regularly with representatives of the immigrant and advocate communities, and stated that in his experience, immigrants perceive City government as highly integrated; he speculated that “if individuals felt like we were sharing immigration information through the police department…they would be hesitant to engage in the Health Department or even the library.” (Id. 44:12; 54:14-17). He speculated about the potential health and safety implications if immigrants were not to avail themselves of the City Fire Department, public health services, or if they were to circumvent licensing and inspection processes in areas like construction. (Id. 46:15-52:13).

         a) City Prisoner Information

         Mr. Abernathy testified that 81.5% of the City's prison population has not been sentenced and therefore lacks a release date. (4/30/18, “Day 1 Tr.” 65:9-10). These individuals may be released from City custody despite having no set release date, such as if they post bail; Mr. Abernathy testified that the Department of Prisons attempts to release individuals in such cases within four hours. (Id. 74:3-9). He also testified that a “substantial portion” of individuals who enter police custody are released directly from the Police Detention Unit. (Id. 75:9).

         Mr. Abernathy testified that he is familiar with various City policies regarding the treatment of immigration status information. He testified to being aware that police officers are trained in the requirements of Police Commissioner Memorandum 01-06 and Executive Order 8-09 during a Philadelphia-specific training module at the police academy. (Id. 9:4; 10:14). When new City guidance is introduced, it is read out at roll call for every police shift for three consecutive days and then posted at police precincts “for all to see.” (Id. 9:7-9:11). City police officers are not trained on 8 U.S.C. § 1373 specifically because, Mr. Abernathy testified, it was “not practical” and Section 1373 “shouldn't affect how an officer does their job.” (Id. 64:12-18). He testified that Police Commissioner Memorandum 01-06 did not prevent an officer from disclosing to ICE the immigration status of an undocumented immigrant suspected of a crime, and Executive Order 8-09 did not prohibit the disclosure to ICE of the whereabouts or home address of an undocumented person. (Id. 12:13; 15:8). Mr. Abernathy clarified that while it was not the police department's practice to collect individuals' citizenship or immigration status information, officers were not prohibited from sharing that information if they somehow learned it. (Id. 163:1-3; 20:19). He was not aware of any disciplinary action against any of the City's approximately 6, 500 police officers for violating a confidentiality policy. (Id. 61:5-9).

         Mr. Abernathy, who had testified at length at the preliminary injunction hearing regarding the City's participation in various databases, testified that the City employs a database called “Lock and Track” to keep track of individuals in the City prison system. (Id. 22:10-13). Lock and Track contains information such as an individual's name, biographical information, location, charges, and the like. When arrested individuals enter the custody of the Department of Prisons, a City official collects their self-reported citizenship information, which Mr. Abernathy acknowledged was often inaccurate, and enters it into Lock and Track. (Id. 21:12-22:6).

         From 2004-16, ICE had access to the citizenship information available in the City's Lock and Track system, and Mr. Abernathy stressed that if ICE were to request that access be restored, the City would allow ICE access again. (Id. 22:15-19; 27:10-13). ICE could access citizenship information either through a daily e-mail sent by the City or through a portal. (Id. 26:13-18). The City shut down the portal and ceased providing the daily e-mail in 2016 when it realized that the portal had not been accessed in a long time. (Id.)

         b) ICE Detainers

         Immigration detainers received from ICE are entered into an individual's Lock and Track “jacket, ” and a paper copy of the immigration detainer is kept in that individual's physical file. (Id. 30:24-31:7). Mr. Abernathy testified that ICE detainers are “generally” sent to City prisons, but sent “at times” to police districts; he testified that it would not surprise him to hear that 16 out of 67 detainers since January 2017 had been sent to police precincts. (Id. 27:14-18; 130:23). At present, detainers “follow” an individual such that if he is transferred to state custody, the state will be aware that he has a pending immigration detainer. (Id. 31:21-32:2). Mr. Abernathy testified to some “confusion” regarding whether a detainer would “follow” an individual-such that a subsequent holding facility, such as a state prison, might not be aware of the pending detainer-but stated that he clarified the policy in a memo to the Director of the Bureau of Prisons dated March 29, 2018. (Id. 140:8-141:2). He admitted that the City had not done anything to ensure that other facilities that had received inmates from Philadelphia before March 29, 2018 were notified of pending detainer requests. (Id. 141:3-19).

         c) Advance Notice of Release

         Mr. Abernathy also repeatedly testified that the City only provides advance notification of an individual's release to ICE, in response to an immigration detainer lodged by ICE, when the City receives a criminal judicial warrant in addition to the detainer. (Id. 82:20-25). He testified to the contents of Executive Order 5-16, about which he had testified at the preliminary injunction hearing, and reiterated that pursuant to his memorandum to the Director of the Bureau of Prisons, the City's policy was to honor all criminal warrants, although he admitted that the City had failed to honor a federal criminal judicial warrant on one occasion. (Id. 33:25-34:2; 35:22-36:13; 32:19-20). The City also honors all detainers from other states made pursuant to criminal warrants, and holds individuals at City prison facilities for pickup by law enforcement from other jurisdictions, which Mr. Abernathy testified is a “safer transfer.” (Id. 98:18-99:6; 106:11-21).

         Mr. Abernathy stated that on five occasions between the issuance of Executive Order 5-16 and his March 22, 2017 clarifying memo, he had personally informed ICE of the pending release of an inmate charged with “serious felony 1 charges” including rape, attempted murder, and criminal conspiracy-despite the absence of a federal criminal judicial warrant. (Id. 102:15-103:3). Mr. Abernathy acknowledged that his actions violated City policy, and that no City policy provided for such a case-by-case determination. (Id. 103:8-10; 105:2-4).

         d) Prison Access

         When asked about requests from ICE to interview inmates, Mr. Abernathy described the interview form about which he had testified to at length at the preliminary injunction hearing. He testified that the City had instituted the form, which allows ICE interviews only if an inmate consents in writing, because ICE is the only law enforcement agency investigating primarily civil matters; the City was concerned about the large proportion of individuals who would not be able to afford an immigration lawyer, and wished to inform them of their rights. (Id. 159:19-160:7). Mr. Abernathy posited that if another federal civil enforcement agency, such as the IRS or OSHA, were to seek to interview inmates, the City might adopt a similar form. (Id. 160:9-12). However, if ICE sought an interview with an individual in connection with a criminal matter, Mr. Abernathy testified, the individual might or might not be provided with the form. In the year prior to the adoption of the form, ICE had requested to interview approximately six inmates, and the interviews had taken place. (Id. 45:17-19; 116:25). In the year or so following the adoption of the consent form, ICE had requested to interview six inmates, but no interviews took place because three individuals declined consent, and the remaining three requested to be interviewed in the presence of an attorney. (Id. 45:3-16).

         Throughout his testimony, Mr. Abernathy repeatedly stated that ICE has become more “aggressive” in its tactics in the past year or so. This has made his job of trying to keep Philadelphians safe and reducing crime, by maintaining law enforcement partnerships while encouraging the community to avail itself of public services of many kinds, including police, “more difficult than it should be.” (Id. 38:14; 148:6-7).

         2. Eva Gladstein

         Eva Gladstein also testified at the trial. (See 5/10/18, “Day 4 Tr.” 64:6-77:2). Ms. Gladstein is the deputy managing director of Health and Human Services for the City. (Id. 64:12-14). No. department that she oversees applied for Byrne JAG grant funding in FY2017. (Id. 66:1-4).

         Ms. Gladstein testified that Philadelphia residents can use the City's services without regard to immigration status. (Id. 65:13-18). Because some of these services are stigmatized-e.g., substance abuse treatment services-the City has sought to establish trust with the immigrant communities to ensure that immigrants, like other Philadelphia residents, are able to use the City's services. (Id. 71:19-72:3). Ms. Gladstein believes the City's confidentiality policy enables such trust. (Id. 71:11-18). Ms. Gladstein credibly testified that immigrants would be less likely to use the City's services if they feared that their immigration status would be readily revealed to ICE as a result, and that City residents do not easily distinguish between departments of the City government. (Id. 74:4-10).

         3. Julie Wertheimer

         Julie Wertheimer testified that she is the Chief of Staff for criminal justice in the City's Managing Director's office. (5/1/18, “Day 2 Tr.” 5:3-6). Her testimony at the trial was in significantly greater detail than at the PI hearing. As part of her role she oversees all of the City's criminal justice grants, including the JAG grant. (Id. 5:20-22). Ms. Wertheimer stated that she works with the Department of Justice's Office of Justice Programs, and in particular with a program officer named Sam Beamon, who serves as the City's point of contact within the DOJ with respect to executing grants. (Id. 5:25-6:14). In particular, Ms. Wertheimer consults with Mr. Beamon with respect to budget modifications and extensions, and to ensure the City is meeting the requirements of a particular grant. She testified that an individual named Corey Randolph is Mr. Beamon's direct supervisor. (Id. 5:15-17).

         Over time working with Mr. Beamon in this capacity, he has assisted Ms. Wertheimer in interpreting JAG grant requirements, including a special condition related to controlled expenditures, and a special condition of a public comment requirement. (Id. 8:7-15; 10:5-22; 11:4-7, 19-22).

         a) Section 1373 Issues

         Ms. Wertheimer testified that she learned of the DOJ's determination that the City is not in compliance with Section 1373 in an email from Tracy Troutman in October of 2017. (5/1/18, “Day 2 Tr.” 6:20-7:4). This was followed by a phone conversation she had in November with Mr. Beamon regarding the October 27th deadline for the City to submit its certification that it is in compliance with Section 1373. (Id. 7:19-20). During this conversation Ms. Wertheimer asked Mr. Beamon what the next steps would be with regard to the JAG grant, and Mr. Beamon “indicated that he basically had no idea what was going on with the process.” (Id. 7:21-25).

         Ms. Wertheimer testified that she spoke with Mr. Beamon on the phone after the solicitation for the FY 2017 JAG grant was released, and he stated that he was not aware that it had been released and that neither he nor anyone in his chain of command was aware of the new conditions. (Id. 15:12-17). Ms. Wertheimer requested assistance from Mr. Beamon in regards to interpreting the condition requiring compliance with Section 1373, and for the first time, he was unable to offer any clarifying guidance related to a special condition. (Id. 12:1-9; 13:7-13). She further stated that she assumed that Mr. Randolph did not have any additional clarifying information-though she never spoke with him by phone to confirm this-because in the past when Mr. Beamon has been unable to assist with interpreting conditions he has referred Ms. Wertheimer to Mr. Randolph for this purpose, and he did not do that in this situation. (Id. 15:12-21; 16:1-4; 17:4-11).

         The DOJ sent the City a guidance document regarding compliance with Section 1373 on July 7, 2016, which stated that this condition “does not impose on states and localities the affirmative obligation to collect information from private individuals regarding their immigration status, nor does it require that states and localities take specific action upon obtaining such information.” (Id. 18:2-22). Ms. Wertheimer also stated that this document, like other guidance documents provided by OJP at the time, did not clarify that citizenship or immigration status information includes addresses, whereabouts, or inmates' release dates. (Id. 20:3-20; 23:5-15; 25:11-14).

         Ms. Wertheimer also asked Mr. Beamon for guidance regarding the jail access and advance notice conditions attached to the City's Fiscal Year 2017 JAG Award. He told her that these issues would be resolved at a later date and did not offer specific guidance about what was required. She assumed that he was not clear on how to interpret the conditions. (Id. 25:15-27:17). Ms. Wertheimer compared this situation to others, in which new conditions have been attached to federal grants to the City and Mr. Beamon has been able to help the City determine what it needed to do to comply with those conditions. (Id. 28:11-29:10).

         Ms. Wertheimer testified that she first learned that the three new conditions would be attached to the City's Fiscal Year 2017 JAG award when the DOJ posted a notice about it in July, 2017 on their website. (Id. 30:10-31:4). The solicitation for applications was posted on August 3rd, 2017, and included reference to the three new conditions. Ms. Wertheimer stated that she has never seen a condition included in a solicitation that was not then included in the final award document, and that she had no reason to question whether these three new conditions would be include in the final JAG award documents for FY2017. (Id. 32:11-24).

         b) City Criminal Justice Details

         Ms. Wertheimer is familiar with the City's criminal justice data management systems including CPCMS, or, Common Pleas Case Management System. She said that it operates by the Office of Judicial Records updating docket information for individual cases typically within three to four hours of the occurrence of new events; at the most she indicated that it is always updated within 24 hours. (5/1/18, “Day 2 Tr.” 33:11-34:18). Ms. Wertheimer noted this is a public database, and characterized it as a very reliable system that is widely relied upon and used by the public including reporters. (Id. 34:20-24). CPCMS includes case status information, confinement information, and bail information. (Id. 34:25-25:21).

         c) JAG Details

         Ms. Wertheimer testified that she has worked on the JAG grant disbursement for eight years. Once awarded, the City returns a copy to the DOJ, as well as sending a copy to the City Financial Department, which sets up a grant profile and an “index code, ” after which the funds for the grant are appropriated. (5/1/18, “Day 2 Tr.” 36:5-18).

         Ms. Wertheimer explained that the City uses the term “unobligated” in its financial reporting regarding DOJ grants in order to indicate funds that have not been spent. (Id. 36:22-37:14). This term, she clarified, does not mean that the funds are actually unobligated, and the DOJ is aware of that as a result of past practice and communication with the City; Ms. Wertheimer explained, “that's our practice and that's a practice that our program officer, not only our JAG program officer but all our DOJ program officers are aware of.” (Id. 37:13-19).

         Ms. Wertheimer stated that the reason all of the City's 2016 JAG funds had been unobligated as of December, 2017, is because the City was concerned about the DOJ's statements that the City may be required to pay back those funds, and the City is not in a position to do that. (Id. 37:20-38:12; 38:18-20). The City has since moved to obligate all of the funds, she stated. (Id. 378:21-24). While the OJP provided guidance stating that these funds would not be clawed back, the City remained concerned that they could be as a result of Attorney General Sessions' public statements to the contrary-including a March 27, 2017 press release. (Id. 75:2-17; 77:2-8).

         The City has not funded any of the projects that it intended for Fiscal Year 2017 JAG funds through other funding sources. (Id. 39:10-12). Ms. Wertheimer stated that that City needs every dollar that it has, and the reason it seeks grant money is so that it will not have to cut off funding to competing interests and other important purposes such as public libraries in order to respond to criminal justice and public safety needs. (Id. 53:4-23). Philadelphia is the poorest big city and it is stretched thin. (Id. 86:22-87:8).

         Ms. Wertheimer clarified that the JAG grant is structured as a multi-year grant, meaning that the City receives a new allocation each fiscal year, that allocation is backdated one year, and then the City has about a three year additional period for execution; as such the City has not expended the full amount of the 2015 award yet. (Id. 57:6-58:10; 81:9-19).

         4. Matthew Gillespie

         Lieutenant Gillespie has been a police officer for fifteen years in Philadelphia, and is currently a Lieutenant in the Philadelphia Police Department as well as the Commanding Officer of the Police Detention Unit-colloquially referred to as the “Roundhouse” or the “PDU.” (4/30/18, “Day 1 Tr.” 173:6-7; 174:9-10). The PDU is the largest temporary holding facility in Philadelphia, processing nineteen to twenty thousand arrested people each year. (Id. 173:9-11). However, it is just one of the five divisional booking centers that process Philadelphia arrestees. (Id. 175:6).

         Lt. Gillespie testified that, following an arrest, an arrestee is brought to one of the five divisional booking centers, where the PPD engages in its intake procedure. (Id. 176:1-3). After a few hours, the defendant's fingerprints are taken by unsworn civilian corrections officers. (Id. 176:10-13; 178:13-17). The delay is due to the fact that the arresting officer or assigned investigator must first fill out a report on the police arrest report system (“PARS”), in which the facts of the case, arresting officer's information, and defendant's biographical information (including “place of birth”) are all recorded. (Id. 176:14-177:13). The defendant's fingerprints are digitally transmitted to the PPD Records and Identification Unit via the automatic fingerprint information system (“AFIS”). (Id. 179:1-7). Then, the Records and Identification Unit works with the Pennsylvania Crime Information Center to verify who the person is and determine if the person has any outstanding criminal warrants. (Id. 179:8-13). If there is a “hit” for an immigration violator file, but there is no other reason for detaining the defendant, PPD will notify ICE. (Id. 196:23-197:6).

         The District Attorney's Office then reads the facts of the case, and determines if the arrest report will be approved. (Id. 181:10-12). If the arrest report is disapproved, the District Attorney's Office calls the PDU and tells them to release the defendant. (Id. 181:13-15).

         Lt. Gillespie testified that, after the arrest report is approved, the PDU coordinates with the bail commissioner to arrange an arraignment for the defendant, which occurs several hours later. (Id. 182:19-22). Approximately six times per day, a group of arrestees see the bail commissioner through closed circuit television. (Id. 184:8-11). If bail is set, the defendant is given two to three hours to have that bail paid. (Id. 185:14-16). After the defendant makes bail, he is released, on average, within two hours. (Id. 188:1-4). If the bail commissioner does not allow the defendant to post bail, or the defendant fails to post bail, he is transferred to the City's Curran-Fromhold facilities on State Road. (Id. 186:20-22). Approximately eleven thousand of the nineteen thousand arrestees who are processed at the PDU are subsequently transferred to the State Road facilities. (217:22-23). The average amount of time that someone spends at the PDU is fourteen hours. (Id. 188:18-25).

         In the past two years, Lt. Gillespie stated that he has seen two ICE detainers accompanied by a criminal judicial warrant. (Id. 189:14-16). In both cases, the defendants were transferred to federal custody at the State Road facilities after going through the local arrest process. (Id. 189:20-21). Anytime ICE calls the PDU and asks if a specific person is in the PDU, PPD will inform them that the person is in custody at the PDU, but will not give advance notice of their release unless there is a judicial warrant. (Id. 210:12-16).

         a) Memos - February 7, 2018 and April 23, 2018

         Lt. Gillespie was asked about a memorandum that he circulated to the PDU staff on February 7, 2018 (the “Gillespie Memo”). He had sent the memorandum as a result of being notified in late January, 2018, that ICE agents had been stationed in the parking lot outside the PDU requesting to speak with prisoners detained inside. (Id. 199:3-15). The memorandum cited Executive Order 5-16, and stated that the City would not comply with detainer requests-including requests for interviews-unless they are supported by a judicial warrant and pertain to an individual being released after conviction for a first or second-degree felony involving violence. (Id. 200:4-9). However, Lt. Gillespie stated that the City now honors all detainers supported by judicial warrants, irrespective of the offense for which an individual had been charged or convicted. (Id. 200:11-23).

         Lt. Gillespie was later informed by his supervisor, Deputy Commissioner Coulter, that he should clarify the PDU's policy with a new memorandum, which was issued April 23, 2018. (Id. 201:4-14). The new memorandum superseded the prior Gillespie Memo, and stated, among other things, that for criminal investigations, ICE is permitted to interview PDU detainees. (Id. 200:15-21).

         Lt. Gillespie stated that changing the PDU's policy to allow ICE agents to conduct civil immigration interviews would hinder the arraignment process and increase the level of tension that the PDU staff would have to endure while at work, as prisoners might express frustration at the prospect of deportation. (Id. 203:2-204:2).

         5. Commissioner Ross

         Philadelphia Police Commissioner Ross testified that in his role as Police Commissioner he is responsible for training police officers. He indicated several means used for training, including training at the Police Academy, in-service training, and police teletype, which is the communication of policies by sending them to officers electronically. (5/10/18, “Day 4 Tr.” 38:2-40:7). He stated that police are trained on all Police Commissioner memoranda and policy directives, and that police are expected to comply with all such memoranda and directives. (Id. 7:11-17). Commissioner Ross agreed that when policies and memoranda offer a clear rule, the expectation is that police will follow it completely, but that policies cannot capture every situation. (Id. 7:18-8:6).

         a) Training

         Commissioner Ross stated that no police training specifically references Section 1373, other than the Mayor's Executive Order. (5/10/18, “Day 4 Tr.” 9:6-15). Police are, however, trained on their interactions with federal partners. (Id. 10:9-12). With respect to the City Executive Order stating that the police department will not comply with ICE civil immigration detainers unless supported by a judicial warrant, Commissioner Ross clarified that that refers to a criminal warrant and that this policy is consistent with how the police department does business generally. (Id. 10:19-25; 11:1-17; 12:17-22). Commissioner Ross explained that Philadelphia police officers across the board have an understanding that they must comply with judicial warrants signed by judges, and that they consistently do comply with such warrants. (Id. 13:1-18; 14:10-14). He stated that the police department would respect any federal judicial warrant signed by a judge, however he does not believe that there are any such warrants relating to civil matters. (Id. 49:17-24; 58:7-59:8).

         b) Smart Policing

         Commissioner Ross testified to some extent as he had at the PI hearing, that the City has a big problem with criminality, and that to respond the police must cultivate relationships with residents. ICE being aggressive over the past year has made this much harder for the City and the police department. (5/10/18, “Day 4 Tr.” 14:17-25; 15:1-9; 25:7-21; 31:11-19). At the same time, he said cooperation with federal partners absolutely is in line with “smart policing.” (Id. 32:23-33:9). Commissioner Ross stated that he is aware of the issue of Brian Abernathy violating Executive Order 5-16 by providing advance notice to ICE about the upcoming release of offenders without a warrant. (Id. 24:17-25:2). He further stated that there is no policy forbidding communication with ICE when an alien is suspected of a crime or is convicted of a crime. (Id. 17:1-6). ICE would be able to discover the facts underlying a crime for which a person was arrested via PARS or NCIC, and there is no policy prohibiting police from sharing this information with ICE, or from sharing the fact that a particular person is in police custody. (Id. 35:8-36:8).

         Commissioner Ross explained that offender-focused policing deals with focusing enforcement efforts on chronic offenders, and agreed that sometimes it is useful to focus on people who have committed crimes in the past in order to promote public safety. (Id. 20:17-21:8).

         c) Budget

         Commissioner Ross testified that the Philadelphia Police Department's budget was recently increased as a direct and essentially mandated result of an increase in personnel compensation through collective bargaining. (5/10/18, “Day 4 Tr.” 29:14-24). Technically, he stated, he could have requested a larger budget increase, but he would not have been likely to receive it. (Id. 53:18-55:2).

         d) ...


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