Professional Documents
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(502) 574-6336
Julie Lott Hardesty Fax (502) 574-5366
First Assistant December 8,2017
Alan Hanson
Acting Assistant Attorney General
DEPARTMENT of JUSTICE
Office of Justice Programs
Washington DC 20531
1am in receipt of your letter described above. Thank you in advance for considering our
response. At the outset, let me state that your concerns are unwarranted concerning Louisville's
recently-enacted ordinance. The ordinance in question was enacted simply to allow all members
of Louisville's community—immigrants included—the freedom to report crimes to the police
without fear. As the President's Task Force on 21'^ Century Policing found, local law
enforcement's building of trust with immigrant communities is "central to overall public
safety."^
Nothing within the ordinance attempts to limit or thwart 8 USC § 1373, regarding the
sharing of immigration information between local governments and the Immigration and
Naturalization Service (INS). To the contrary, the ordinance explichlv requires Louisville Metro
to comply and recognizes the import of 8 USC § 1373.
The ordinance at § 1(F) clearly states:
LMCO Chapter 39 new § 1(F) enacted October 26, 2017 [emphasis supplied] (Attached as
Exhibit A).
When reading these two sections (Louisville Metro and federal) side-by-side, you will
see that there is no way that Louisville's ordinance can act to prohibit the maintenance, sharing,
or conveyance of information to the INS. The Louisville ordinance explicitly recognizes the
federal prohibition and states clearly that such information cannot be prevented from being
shared. It is essential to read the ordinance in frill.
Next, turning to the specifically delineated items addressed in your letter, you first
question whether § 1(C)(2)(a) violates 8 USC § 1373. You quote that ordinance provision as
saying, "no Metro officer or employee should inquire into the immigration status of any person
or request. . . information verifying the immigration status of any individual." Our response to
that concern is two-fold:
• Nothing in 8 USC § 1373 requires our officers or employees to inquire into the
immigration status of individuals.^ That federal statute only regards the sharing of
information between the local government and the Immigration and Naturalization
Service. The requirement that Louisville not prohibit the sharing of information is
explicitly recognized in § 1(F) of our ordinance as quoted above. In no way does
Louisville restrict the sharing of information between itself and the INS. Likewise, in no
way does 8 USC § 1373 require that our officers and employees inquire as to
immigration status.
^Courts interpreting 8 USC § 1373 have found that the statute places no affuroative duty on municipalities to collect
immigration information. See Doe v. City of New York, 860 NYS2nd 841, 844 (NY Supp 2008); Sturgeon v.
Bratton, 96 Cal.Rptr. 3d 718, 731-32 (Cal.App. 2009).
• The actual language of § 1(C)(2)(a) of the ordinance is not as you have quoted. The
ordinance actually states: "With the exception of inquiries required by law, no Metro
officer or employee should inquire into the immigration status of any person or request
any documents or information verifying the immigration status of any individual."
Exhibit A, page 5, [emphasis supplied]. Thus, our officers and employees will fully
comply witii any law that requires them to inquire of immigration status and are
commanded to do so. That requirement is fully set out in the ordinance at § 1(C)(2)(b).
You next question whether the confidentiality provisions of the ordinance at §1(C)(2)(b)
violate 8 USC § 1373. You quote the provision as stating that the "'confidentiality of
[immigration information] shall be maintained to the fullest extent permitted' by state and
federal law." Our response is again, two-fold:
• First, the phrase you have quoted has been removed from its context and your selective
bracketing modifies the meaning of the ordinance. The ordinal section from which you
have quoted regards only how Lx)uisville provides services to its constituents. When the
phrase you have quoted is placed in its context, your misapprehension of this provision
can be made clear. The actual provision states:
Metro employees shall follow general city, state and federal guidelines to
assess eligibility for services. Employees shall only solicit immigration
information or inquire about immigration status when specificallyrequired to
do so by law or program guidelines as a condition of eligibility for the service
sought. Metro employees may require evidence of a person's identity and
may ask to see a person's personal identifying documents only when
specifically authorized and required to do so by the employee's work duties.
The confidentiality of such information shall be maintained to the fullest
extent permitted by the laws of the United States and the Conmionwealth of
Kentucky. Metro employees shall not discriminate against any current or
potential service users on the basis of actual or suspected immigration status.
• Second, and more importantly, the ordinance clearly recognizes the import of 8 USC §
1373 as it relates to sharing information with the INS. At both §1(C)(2)(b) and at §1(F),
the ordinance reflects that certain federal laws require information to be shared and tihat
nothing within the ordinance can prevent the sharing of information under federal law.
The ordinance was not designed to interfere with that sharing. The ordinance does
protect the confidential information of applicants for city services from the general
public. It does not do so with regard to the INS.
Your final point of concern regards Louisville's prohibition of using its city personnel for
immigration detection or apprehension. You indicate you believe that this appears to restrict the
sending or requesting of information regarding immigration status in potential violation of 8
use §1373. The provision in question states:
Metro employees and representatives shall not use Metro Government resources
or personnel solely for the purpose of detecting or apprehending persons whose
only violation of law is or may be being undocumented.
Thus, given that 8 USC §1373 and LMCO Chapter 39 § 1 are not in conflict and the
ordinance recognizes that Louisville cannot prohibit the sharing of immigration information,
there is no basis for concern here. Louisville does not meet the definition of Sanctuary City as
was defined by U.S. Attorney General Sessions, in his memo dated May 22, 2017 (Attached as
Exhibit B) in which he stated that sanctuary jurisdictions are those that "willfiilly refiise to
comply with 8 USC 1373." Because oxir very ordinance states that Louisville will comply with
the sharing directives contained in that federal section, it is perplexing that Louisville is singled
out for scrutiny in light of Mr. Session's directives to the contrary.
Finally, you ask Louisville whether it will certify "compliance" with 8 USC § 1373. The
answer to this question is, again, a clear and unequivocal yes. While we question whether the
executive branch can add additional conditions to congressional mandatory formula grants like
the JAG Byrne when Congress chose not to require such compliance, Louisville has no intention
of preventing or prohibiting the sharing of information as is required under the statute.
That being said, it does appear that the conditioning of these mandatory formula grants
has been addressed and is part of the nationwide injunction regarding adding new conditions to
JAG Byrne imposed under the guise of 8 USC § 1373 compliance. City of Chicago v. Sessions,
2017 WL 4081821, at *14 (N.D.Ill., 2017). Similarly, we are cognizant of the recently rendered
decision out of Philadelphia, the City of Philadelphia v. Sessions, 2017 U.S. Dist. LEXIS 188954
(2017). hi that ruling, of which I am sure you are aware, the United States District Court found
that the attempts to condition the Byrne Grant funds on certification conditions likely violated
the Tenth Amendment, the Spending Clause, and principles of federalism and were, therefore,
unconstitutional. Id., at *14. See also County of Santa Clam v. Trump, 250 F.Supp.3d 497,
531 (N.D.Cal., 2017)
As to your final request, regarding "savings clauses," I would like some additional
clarification as I am not sure what, exactly, you are requesting. As addressed above, the
ordinance in question contains this provision:
We view this clause as a clear recognition that 8 USC § 1373 is controlling. Your letter
has neither telephone number nor email so I cannot clarify your request. Generally, Louisville
Metro Government's ordinances are also subject to a severability clause that provides that if one
section is detennined to be invalid, other sections are still valid. LMCO § 10.08.
Sincerely,
•JL
Mike O'Connell
Jefferson County Attorney
MJO/jj
Enclosures
community and wants to ensure its safety and access to needed resources and city
services; and
WHEREAS, LMPD works with the community to build relationships that are
WHEREAS, a broad coalition of police chiefs across the country have taken the
position that, "buldQng] trusting and supportive relations with immigrant communities . .
jurisdictions that have adopted policies that promote positive Felatk)nships between
residents - regardless of their immigration status - and polkse, showing on average 35.5
fewer crimes per 10,000 people in such Jurisdictions, which would correlate to
has been assisting U.S. Customs and Immigration Enforcement to serve local wanrants.
make traffic stops and knock on the doors of non-violent offenders wanted for
matters.
(A) Purpose and policy statement This section clarifies the communication and
Department of Homeland Security ("DNS") and other federal agencies with respect to
cooperatively with DHS, as it does with all state and federal agencies. Metro
Govemment respects the role of DHS in enforcing immigration laws in the United
States, Kentucky, and Louisville Metro. This section is not Intended to limit the proper
enforcement of generally applicable laws, but rather to state the policy of Metro
Govemment that all residents are equally entitled to protection, and that all residents
should be able to access Metro Govemment services to which they are entitled, without
entering into Section 287(g) agreements with U.S. Customs and Immigration
Enforcement ("ICE"), for the purpose of detecting the presence of
including but not limited to questioning any person or persons about their
immigration status.
(b) Public safety officials may not question, arrest or detain any person for
violations of federal civil immigration laws except when Immigration status is an
(c) Nothing In this section shall prohibit public safety officials from investigating
criminal activity involving individuals present in the United States who may also
be in violation of federal civii immigration laws. Public safety officials may
provide support to ICE only when a judicially authorized warrant exists or tCE
(d) Nothing in this section prohibits public safety officials from adequately
identifying criminal suspects or assessing the risk of flight of criminal suspects.
(e) Where presentation of a state Issued identification card or driver's license is
(2) All such use of Metro public safety officials relating to Immigration matters under this
section shall be documented. Including any applicable DIHS mission statement and
operational policy or guidelines, the reason for the dispatch of officials, the name of
the requesting DHS agent, and the name of the officer authorizing the use of Metro
personnel.
(3) Supervisors of public safety officials shall include infomiation regarding Metro
Govemmenfs policy and expectations as set forth In this section, in the orientation
services shall mean all Metro Govemment services excepting those services specifically
listed as public safety services in subsection (6) above.
(2) To the extent permitted by law, in determining eligibility for, and providing general
Metro Govemment services, Metro employees shall be govemed by the following
requirements:
(a) Metro employees are to carry out their regular duties for the purpose of
administering general Metro Government services and programs. With the
exception of Inquiries required by law, no Metro officer or employee should
Inquire into the immigration status of any person or request any documents or
infonnation verifying the immigration status of any individual.
(b) Metro employees shall follow general city, state and federal guidelines to
assess eligibility for services. Employees shall only solicit immigration
infomiation or inquire about immigration status when specifically required to do
so by law or program guidelines as a condition of eligibility for the service
sought. Metro employees may require evidence ofa person's Identity and may
ask to see a person's personal identifying documents only when specifically
authorized and required to do so by the employee's woric duties. The
pemiitted by the laws ofthe United States and the Commonwealth of Kentucky.
Metro employees shall not discriminate against any cun^nt or potential service
users on the basis of actual or suspected immigration status.
(c) Metro employees and representatives shall not use Metro Govemment
this section In the orientation of new employees and as part of Metro Government's
(1) An employee of Metro Govemment who violates this section may be subject to
disciplinary action, such as oral reprimands, written reprimands, suspension without
pay, and/or discharge, under the appropriate union contract, civil service
6
and witnesses shall be made by any Metro Government personnel in the
investigation of such a complaint or thereafter.
(3) LMPD, LMDC and HR shall prepare and file in April of each year with the Metro
Council and the Mayor's Office an annual report and recommendations regarding
the implementation of this section.
(E) Subpoena. Nothing in this section prohibits Metro Government employees from
responding to a properly issued subpoena.
(F) Nothing in this section prohibits Metro Government from sending to, orreceiving
from, any local, state orfederal agency information regarding an individual's citizenship
or immigration status. Federal law does not allow any such prohibition.
any reason, the remaining subsections of the section shall continue in full force and
effect.
SECTION III: This Ordinance shall take effect upon its passage and approval.
{phen DaviB'Y^es
Metro Council Clerk President of thef Council
ton
G^g FiscJj^J Approval Date
Mayor
8
(©fftcc af tl|£ ^ttarxiB^ (icmral
3ila0[fingt0n, p.Cd. 20530
May 22, 2017
Federal law provides a process for foreign citizens to lawfully enter the country.
Circumventing that process and crossing our borders unlawfully is a federal crime. It is the role
of federal agencies, including the Department of Justice, to enforce our immigration laws,
prosecute violations, and secure our borders.
statutory limitation. Nor does the Executive Order purport to expand the existing statutory or
constitutional authority of the Attorney General and the Secretary of Homeland Security in any
respect. Indeed, apart from the Executive Order, the Department ofJustice and the Department
of Homeland Security, in certain circumstances, may lawfully exercise discretion over grants that
they administer. Section 9(a) directs the Attorney General and the Secretary of Homeland
Security to exercise, as appropriate, their lawful discretion to ensure that jurisdictions that
willfully refuse to comply with section 1373 are not eligible to receive Department of Justice or
Department of Homeland Security grants.
Consistent with the Executive Order, statutory authority, and past practice, the
Department of Justice will require jurisdictions applying for certain Department grants to certify
their compliance with federal law, including 8 U.S.C. § 1373, as a condition for receiving an
award. Any jurisdiction that fails to certify compliance with section 1373 will be ineligible to
receive such awards. This certification requirement will apply to any existing grant administered
by the Office of Justice Programs and the Office of Community Oriented Policing Services that
expressly contains this certification condition and to future grants for which the Department is
statutorily authorized to impose such a condition. All grantees will receive notice of their
obligation to comply with section 1373. The Department will administer this certification
requirement in accordance with the law and will comply with any binding court order.
After consultation with the Secretary of Homeland Security, I have determined that, for
purposes of enforcing the Executive Order, the term "sanctuary jurisdiction" will refer only to
jurisdictions that "willfully refuse to comply with 8 U.S.C. 1373." A jurisdiction that does not
willfully refuse to comply with section 1373 is not a "sanctuary jurisdiction" as that term is used
in section 9(a). While the Executive Order's definition of "sanctuary jurisdiction" is narrow,
nothing in the Executive Order limits the Department's ability to point out ways that state and
local jurisdictions are undermining our lawful system of immigration or to take enforcement
action where state or local practices violate federal laws, regulations, or grant conditions.
The provisions of the Executive Order quoted above address only 8 U.S.C. § 1373.
Separate and apart from the Executive Order, statutes may authorize the Department to tailor
grants or to impose additional conditions on grantees to advance the Department's law
enforcement priorities. Consistent with this authority, over the years, the Department has
tailored grants to focus on, among other things, homeland security, violent crime (including drug
and gang activity), and domestic violence. Going forward, the Department, where authorized,
may seek to tailor grants to promote a lawful system of immigration.