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IN the UNITED STATES DISTRICT COURT for the EASTERN DISTRICT of PENNSYLVANIA the CITY of PHILADELPHIA V. JEFFERSON BEAUREGARD SE

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IN the UNITED STATES DISTRICT COURT for the EASTERN DISTRICT of PENNSYLVANIA the CITY of PHILADELPHIA V. JEFFERSON BEAUREGARD SE IN THE UNITED STATES DISTRICT COURT FOR THE EASTERN DISTRICT OF PENNSYLVANIA THE CITY OF PHILADELPHIA CIVIL ACTION v. NO. 17-3894 JEFFERSON BEAUREGARD SESSIONS III, ATTORNEY GENERAL OF THE UNITED STATES MEMORANDUM Baylson, J. June 6, 2018 “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 i 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 ii 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 iii 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
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