Combating illegal immigration has become a cornerstone of the Trump administration’s agenda. President Trump has frequently touted the allegedly threatening impact of immigration on crime and the economy to justify ramping up federal immigration enforcement efforts. However, many jurisdictions have adopted an implicit policy of obstructing such efforts by refusing to disclose information on suspected undocumented or illegal immigrants. These “sanctuary cities” have been embroiled in numerous legal battles with the Trump administration. Cases involving the denial of federal grant funding to sanctuary cities have proven especially controversial and continue to play out today.
The COPS Grant Program
Created under the Violent Crime Control and Law Enforcement Act of 1994 (“the Act”) and under the supervision of the Department of Justice (DOJ), the Community Oriented Policing Services (COPS) Program aims to “advance community policing in all jurisdictions across the United States” by awarding grants to state, local, and tribal law enforcement agencies. Congress initially funded the program to hire more street-level law enforcement officers, also known as beat cops, during the Clinton administration.
The COPS Program issues competitive grants, as opposed to formula grants, meaning that state, local, and tribal governments must apply for access to a limited pool of funds. The DOJ has the discretion to give “preferential consideration, where feasible” to states or localities that have enacted laws furthering the program’s goals. To date, Congress has only appropriated funds for two purposes: (1) rehiring officers who were laid off due to budgetary restraints, and (2) hiring new law enforcement officers “for deployment in community-oriented policing across the Nation.” In order to secure a grant, applicants must demonstrate a particular public safety need, explain how the grant will promote community-oriented policing, and specify a particular “crime and disorder problem/focus area.”
In 2017, Attorney General Jeff Sessions introduced new conditions, including an optional “illegal immigration” focus area, attached to COPS grants. To qualify for the illegal immigration focus area, applicants must explain how the grant would promote cooperation with federal immigration efforts through information sharing, 287(g) partnerships, task forces, and honoring detainers. The DOJ also gained the discretion to award preferential consideration, or bonus points, to applicants who submit a “Certification of Illegal Immigration Cooperation.” Since the objective of sanctuary cities is to protect immigrants from the threat of deportation on a local level, the addition of an illegal immigration focus area on the COPS grant application reduces the likelihood that such cities will qualify for additional federal funding. That was indeed the case for Los Angeles.
The Case of Los Angeles
In 2017, the city of Los Angeles applied for, but was denied, a COPS grant to hire new beat officers for its Community Safety Partnership Program, a clearly defined initiative to promote community-oriented policing. Interestingly enough, Los Angeles neither selected illegal immigration as a focus area nor submitted a certification of cooperation. Los Angeles was not alone; only one out of ninety large jurisdictions (1.11%) and six out of 1029 small jurisdictions (0.58%) chose illegal immigration as a focus area, and only 39% of large jurisdictions and 47% of small jurisdictions submitted a certification. Yet, a disproportionate 80% of grant recipients submitted a certification.
As a result, the city of Los Angeles sought to enjoin enforcement of the COPS grant conditions, arguing that the conditions (1) violate the Spending Clause of the Constitution and separation of powers, (2) exceed the DOJ’s authority, and (3) are arbitrary and capricious under the Administrative Procedure Act. Although the District Court for the Central District of California sided with Los Angeles on each claim, enjoining the DOJ from such practices, the Ninth Circuit reversed on appeal the lower court’s decision.
The Ninth Circuit wrote that, as a competitive grant, the COPS grant does not fall under normal Spending Clause restrictions. The Spending Clause empowers Congress to grant federal funds to recipients agreeing to engage in or refrain from certain activities. The court ruled that because the DOJ did not propose to withdraw funding from sanctuary cities, offer financial incentives to unduly coerce compliance, or force any grant applicant to choose the illegal immigration focus area, such grant selection criteria strategies were constitutional. The court posited that the DOJ instead offered “mild encouragement” to applicants to focus on illegal immigration in part because applicants had the freedom to choose a focus area. Even so, the fact that the overwhelming majority of grant recipients submitted certifications indicates there is a strong bias against applicants who do not submit certifications.
To determine the meaning of community-oriented policing, the court relied on Chevron deference: when Congress has “explicitly left a gap” in the statute for the agency to fill (in this case, the definition of community-oriented policing), the agency may fill that gap by regulation. The court found that the DOJ may determine application guidelines and the meaning of community-oriented policing based on the criteria of the agency’s choosing. According to the DOJ, immigration enforcement falls in the realm of community-oriented policing because it furthers the goals of law enforcement and public safety.
Legislative Intent and the Meaning of Community-Oriented Policing
The Supreme Court has held that the judiciary is the final authority of statutory interpretation if an agency’s interpretation contradicts legislative intent. As Judge Wardlaw’s dissent notes, the Ninth Circuit majority erred in overlooking the long-held understanding of “community-oriented policing”: the efforts of local law enforcement to integrate into and build relationships with communities. Congress intended for COPS grants to promote partnerships between local law enforcement and communities, not federal officers, by putting more officers on the beat.
Officers on the beat serve as the foundation of community-oriented policing. The beat refers to the local area frequently patrolled by the officer. Community-oriented policing allows officers to integrate into the communities within their beats by creating an “interactive process between the police and the community to mutually identify and resolve problems.” Ostensibly, the resulting partnership between police and the community produces greater citizen support for police and a shared responsibility to prevent crime. The Act therefore aims to promote this healthy relationship by providing grant funding to local law enforcement agencies.
The Act expressly states its purpose to promote “law enforcement officers interacting directly with members of the community.” Under the Act, a COPS grant applicant must explain how the funds will be put “toward community-oriented policing” or used to “enhance [the applicant’s] involvement in or commitment to community-oriented policing.” In both senses, the term community implicitly refers to the beats served by local police officers.
Examining the origin of community-oriented policing elucidates the intent of the COPS Program. Scholars have defined community-oriented policing as a “multidimensional concept” involving beat officers seeking input from and interacting with community members. This process creates a respectful police-community partnership in which officers actively participate in civilian life. Community-oriented policing originated as a reform addressing decades of poorly implemented law enforcement practices which had long focused on crime control, thereby leading to higher crime rates and selective enforcement against people of color. Additionally, in neighborhoods of lower socioeconomic status, aggressive policing exacerbated racial tension. Community-oriented policing, by contrast, offers an innovative way to foster trust in law enforcement by creating partnerships between police and communities.
In fact, strong evidence suggests that federal immigration enforcement is neither an objective of nor compatible with the DOJ’s own definition of community-oriented policing. The DOJ’s definition is abundantly clear from material published by the agency itself. For example, a COPS Program informational pamphlet defines community-oriented policing as “a philosophy that promotes organizational strategies that support the systematic use of partnerships and problem-solving techniques to proactively address the immediate conditions that give rise to public safety issues such as crime, social disorder, and fear of crime.” According to the pamphlet, community-oriented policing consists of three components: problem solving, organizational transformation, and, most importantly, community partnerships, defined as “collaborative partnerships between the law enforcement agency and the individuals and organizations they serve to develop solutions to problems and increase trust in police.” In the pamphlet, the DOJ also uses a graphic that breaks down the various stakeholders in community policing, from other government agencies to nonprofits, private businesses, and community members—federal immigration enforcement is notably absent from this dynamic.
Moreover, the statute does not mention illegal immigration, which indicates that Congress did not intend for the DOJ to provide special considerations for that focus area. If Congress intended to expand the DOJ’s preferential consideration beyond community-oriented policing, then Congress would have expressly authorized the DOJ to do so; otherwise, that section of the statute would be meaningless. Furthermore, the fact that an entirely separate section of the Act specifically addresses “criminal aliens and immigration enforcement” and yet fails to mention a relation to COPS grant funding, suggests that Congress intentionally omitted the issue of immigration from the COPS Program.
The Ninth Circuit’s ruling enables a harmfully deceptive and overly simplistic narrative surrounding immigration. The Trump administration has consistently conflated immigration with crime, a claim that is notoriously unsupported by research. To further crack down on immigration under this narrative, President Trump issued an executive order expanding the 287(g) Program, which allows local and state officers to perform functions of federal immigration agents under the supervision of Immigration and Customs Enforcement (ICE). Under the 287(g) Program, deputized officers gain the authority to access Department of Homeland Security and ICE databases, transfer immigrants into ICE custody, issue immigration detainers, and more. Partnerships under 287(g) between local and state officers and the federal government hinder community policing, and yet the illegal immigration focus area of the COPS Program requires applicants to describe how they will promote 287(g) partnerships.
Studies in numerous jurisdictions have shown that the 287(g) Program has facilitated racial profiling and fostered distrust in local law enforcement. For example, a 2011 DOJ investigation in Maricopa County, Arizona found that immigration officers frequently profiled Latino drivers as well as responded to complaints that alleged no criminal activity but merely alluded to congregations of individuals with “dark skin.” The 287(g) Program was ineffective and controversial enough that the Obama administration declined to renew task force agreements.
Community-oriented policing emerged partially as a way to address the growing rift between minorities and law enforcement. According to the DOJ’s own pamphlet, the COPS Program aims to earn the trust of the community and eliminate the atmosphere of fear created by crime. Furthermore, as stated in a report issued by the COPS Office and the VERA Institute of Justice, federal immigration enforcement harms “local trust-building” by making it difficult for immigrant communities to distinguish between local police efforts and those of federal officers.
Partnerships between federal and local law enforcement agencies, at least with respect to immigration, have undoubtedly contributed to the erosion of such trust and to an atmosphere of fear—not just of crime itself, but of reporting crimes too. Hardened immigration enforcement policies may have cut down on illegal immigration, but they have also created an unintended chilling effect: undocumented immigrants are far less likely to report a crime out of fear of being deported. While some of this chilling can be attributed to language barriers or cultural factors, harsh immigration enforcement efforts contribute significantly. By exacerbating the already tenuous relationship between law enforcement and immigrants, 287(g) partnerships contradict the goal of community-oriented policing: to build strong police-community relationships. Increasing immigration enforcement through COPS grants cannot guarantee a reduction in crime because crimes will remain unreported if undocumented immigrants choose silence over the risk of putting themselves in the federal government’s crosshairs.
The Trump administration may have won the legal battle against Los Angeles over the issue of the COPS Program; however, many other sanctuary cities have brought cases against the federal government for similar grant programs. The Edward Byrne Memorial Justice Assistance Grant Program (“Byrne Program”), established under the Act, authorizes grants to state and local governments for criminal justice and law enforcement purposes. Since Byrne grants are formula grants, as opposed to competitive grants, Congress appropriates a set amount of funds and specifies how to allocate them. Despite this distinction, in 2017 and 2018, the DOJ attached new requirements to Byrne grants that are similar in nature to the immigration focus area requirement for COPS grants. Recall that the Ninth Circuit’s reasoning for upholding conditions on COPS grants was due in part to their designation as competitive, not formula, grants; the outcome could change should a case about a formula grant reappear before the Supreme Court.
Circuit courts remain split over whether the DOJ has the authority to impose conditions on Byrne grants. The Trump administration has denied Los Angeles, among other sanctuary jurisdictions, a Byrne grant for failing to comply with the immigration conditions attached to the funding. Multiple other jurisdictions have recently sought injunctions precluding the enforcement of conditions attached to Byrne grants. Although the First, Third, Seventh, and Ninth Circuits have all upheld such injunctions in Providence (as of March 2020), Philadelphia, Chicago (as of April 2020), and Los Angeles, respectively, the Second Circuit recently created a circuit split when it ruled that the DOJ did have statutory authority to impose and enforce the challenged grant conditions. These cases are works in progress because the Trump administration will likely push back against these injunctions to achieve the key policy goal of stricter immigration enforcement.
The outcome of these cases may have ramifications for future cases involving the COPS Program. The circuit split may warrant certiorari by the Supreme Court. Should certiorari be granted, it is imperative that the Court consider the policy implications of allowing the DOJ wanton discretion to condition grants in a manner that contradicts legislative intent. After all, the DOJ’s own informational materials on the COPS Program support Congress’s very clear legislative intent—an intent void of immigration concern. In this divisive political climate, it is crucial for courts to take a stance not only to protect undocumented immigrants from deportation, but also to preserve the trust-based relationships between local officers and communities that have taken years to establish, all while promoting public safety, an essential purpose of the COPS Program.
About the Author: Adnan Hussain is a rising third-year law student at Cornell Law School and Note Editor for the Cornell Journal of Law and Public Policy. His interests include corporate law and policy issues. Outside of law school, Adnan is an avid fan of metal music and enjoys attending live shows. This summer, he will be working at the New York City office of Willkie Farr & Gallagher LLP.
Suggested Citation: Adnan Muhammad Hussain, Separating Federal Immigration Enforcement from Community-Oriented Policing: How the COPS Grant Program Misses the Mark, Cornell J.L. & Pub. Pol’y, The Issue Spotter, (May 29, 2020), http://jlpp.org/blogzine/separating-federal-immigration-enforcement-from-community-oriented-policing-how-the-cops-grant-program-misses-the-mark/.