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Mike O'Connell

Jefferson County Attorney


600 W. Jefferson Street, Suite 2086
Louisville, KY 40202

(502) 574-6336
Julie Lott Hardesty Fax (502) 574-5366
First Assistant December 8,2017

Writer's email: mike.oconnell@louisvillekv.gov

Alan Hanson
Acting Assistant Attorney General
DEPARTMENT of JUSTICE
Office of Justice Programs
Washington DC 20531

RE: Letter dated November 15, 2017 to Mayor Greg Fischer

Dear Mr. Hanson:

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:

Nothing in this section prohibits Metro Government from sending to, or


receiving from, any local, state or federal agency information regarding an
individuars citizenship or immigration status. Federal law does not allow
any such prohibition.

LMCO Chapter 39 new § 1(F) enacted October 26, 2017 [emphasis supplied] (Attached as
Exhibit A).

^ httPs://cops.usdoi-gov/pdf/taskforce/TaskForce FinalReport.pdf. Recommendation 1.9, p. 18.


1
8USC§ 1373, provides:

(a) In general. Notwithstanding any other provision of Federal, State, or


local law, a Federal, State, or local government entity or official may not
prohibit, or in any way restrict, any government entity or official from
sending to, or receiving from, the Immigration and Naturalization Service
information regarding the citizenship or immigration status, lawful or
unlawful, of any individual.

(b) Additional authority of government entities. Notwithstanding any


other provision of Federal, State, or local law, no person or agency may
prohibit, or in any way restrict, a Federal, State, or local government entity
from doing any of the following with respect to information regarding the
immigration status, lawful or unlawful, of any individual:

(1) Sending such information to, or requesting or receiving such


infonnation from, the Immigration and Naturalization Service.
(2) Maintaining such information.
(3) Exchanging such information with any other Federal, State, or
local government entity.

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.

LMCOChapter 39 § 1(C)(2)(b), Exhibit A, page 5 [emphasis supplied].


As can be seen, this provision has nothing to do with preventing our officers and
employees from sharing information pursuant to 8 USC § 1373. This section regards how our
employees provide government services and how we protect information the public provides us
when they apply for government services. In your letter, the selective bracketing and
modification of the ordinal language from "such" information in the original (clearly pertaining
to only that information obtained in a city services application) to all "immigration information"
removes the context of the information at issue.

• 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.

LMCO Chapter 39 §1(C)(2)(c), Exhibit A, page 5.


Nothing in 8 USC §1373 requires a municipality to act. That federal statute simply
prohibits a municipality from enacting legislation that prevents the sharing of information
between itself and the INS. Thus, Louisville is not required under 8 USC § 1373 to detect or
apprehend immigration status offenders. Indeed, without some agreement with federal
authorities, Louisville has no power in immigration enforcement matters at all. Thus, 8 USC §
1373 and LMCO Chapter 39 § 1 are in complete accord.
Moreover, as addressed in a recent decision from the Federal District Court in the State of
Washington, Tenth Amendment principles would prohibit the compulsion of a municipality's
officers and employees from acting as immigration enforcers. City ofSeattle v. Trump, 2017 WL
4700144, at *7 (W.D.Wash., 2017). As stated therein, the Tenth Amendment prohibits the
Federal Government from compelling "the States to enact or administer a federal regulatory
program." A'ew York v. United States, 505 U.S. 144, 188 (1992). "The Federal Government may
neither issue directives requiring the States to address particular problems, nor command the
States' officers, or those of their political subdivisions, to administer or enforce a federal
regulatory program." Printz v. United States, 521 U.S. 898, 935 (1997). The anti-commandeering
principle prohibits both direct and indirect coercionby the Government on the States. Nat'l Fed'n
oflndep. Bus. v. Sebelius, 567 U.S. 519, 578 (2012).

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:

Nothing in this section prohibits Metro Government from sending to, or


receiving from, any local, state or federal agency information regarding an
individual's citizenship or immigration status. Federal law does not allow
any such prohibition.

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.

Again, I appreciate your attention to this important matter.

Sincerely,

•JL

Mike O'Connell
Jefferson County Attorney

MJO/jj
Enclosures

cc: Mayor Greg Fischer


Metro Council President David Yates
A
ORDINANCE NO. . SERIES 2017

AN ORDINANCE CREATING A NEW SECTION OF CHAPTER 39 OF


THE LOUISVILLE/JEFFERSON COUNTY METRO GOVERNMENT
CODE OF ORDINANCES ("LMCO") RELATING TO EMPLOYEE
AUTHORITY IN IMMIGRATION MATTERS. ^AMENDMENT BY
SUBSTITUTION)

SPONSORED BY: COUNaL MEMBERS BLACKWELL, COAN. GREEN, HOLLANDER, JAMES.


SHANKUN, WOOLRIDGE, BRYANT HAMILTON, MULVIHiLL, BUTLER AND JOHNSON

WHEREAS, Louisville Metro is a city of compassion, a city that embraces our

foreign-bom neighbors and strives to be welcoming, hospitable and safe; and

WHEREAS, Louisville Metro values our growing immigrant and refugee

community and wants to ensure its safety and access to needed resources and city

services; and

WHEREAS, the Louisville Metro Police Departmenfs ("LMPD") role is to protect

ar>d serve all the residents of our community; and

WHEREAS, LMPD works with the community to build relationships that are

essential in helping people stay safe and in solving crimes; and

WHEREAS, a broad coalition of police chiefs across the country have taken the

position that, "buldQng] trusting and supportive relations with immigrant communities . .

. is essential to reducing crime and helping victims"; and

WHEREAS, studies have shown statistically that crime is significantly k>wer In

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

approximately 2,700 fewer crimes in Louisville Metro each year; and


WHEREAS, the Kentucky Center for Investigative Reporting reported tliat LMPD

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

Immigration offenses; and

WHEREAS, clarity is needed to define local and federal roles, responsibilities,

authorities and procedures relating to Metro Govemment employees in immigration

matters.

NOW THEREFORE BE IT ORDAINED BY THE LEGISLATIVE COUNCIL OF


THE LOUISVILLE/JEFFERSON COUNTY METRO GOVERNMENT AS FOLLOWS:

SECTION I: A new section of the Louisville/Jefferson County Metro Govemment

Code of Ordinances ("LMCO") Chapter 39 Is hereby created as follows:

(A) Purpose and policy statement This section clarifies the communication and

enforcement relationship between Metro Govemment and the United States

Department of Homeland Security ("DNS") and other federal agencies with respect to

the enforcement of civil immigration laws. Metro Govemment is committed to working

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

regard to their immigration status under federal law.

(B) Public safety services.


(1) To the extent permitted by law, In providing public safety services, employees ofthe
Louisville Metro Police Department ("LMPD"), Louisville Metro Department of
Corrections ("LMDC") and other Metro Govemment peace officers (collectively,
"Public SafetyOfficials"), shall be governed bythe following requirements:
(a) Public safety officials may not undertake any law enforcement action, such as

entering into Section 287(g) agreements with U.S. Customs and Immigration
Enforcement ("ICE"), for the purpose of detecting the presence of

undocumented persons, persons out of status, or persons unlawfully residing in


the United States (collectively "undocumented"), or to verify immigration status,

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

element of the crime or when enforcing 8 U.S.C. 1324(c).

(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

articulates a reasonable suspicion of a risk of violence or an emergency


situation when there is a clear danger to the public.

(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

customarily accepted as adequate evidence of Identity, presentation of a photo

identity document issued by the person's nation of origin, such as a driver's


license, passport, or consulate-Issued document, or of a photo identity
document issued by any Kentucky county, should be accepted as adequate
evidence to establish Identity and should not subject the person to an inquiry
into the person's immigration status.

(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

of newemployees and as part of Metro Govemmenfs employee on-going in-service


training.

(C) General Louisville Metro Government services.

(1) General Metro Government services defined. General Metro Govemment

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

confidentiality of such Infonnation shall be maintained to the fullest extent

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

resources or personnel solely for the purpose of detecting or apprehending


persons whose only violation of law is or may be being undocumented.

(d) Where presentation of a state issued identification card or driver's license Is

customarily accepted as adequate evidence of identity, presentation of a photo


Identity document Issued by the person's nation of origin, such as a driver's
license, passport, or consulate-issued document, or of a photo identity
document issued by any Kentucl^y county, should be accepted as adequate
evidence to establish identity and should not subject the person to an inquiry
into the person's immigration status.

(3) Supervisors of general Metro Government services employees shall include


infomnation regarding Metro Government's policy and expectations as set forth in

this section In the orientation of new employees and as part of Metro Government's

employee on-going In-service training.

(D) Complaintsand discipline.

(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

commission ailes, or department wori^ rules.

(2) Complaints of a violation by an employee of LMPD or LMDC shall be received and

investigated by their respective Professional Standards Unit ("PSU"), except for


investigations by the LMPD Public Integrity Unit. Complaints of a violation of this
section by an employee of any other Metro Govemment departments shall be

received and investigated by the director of the Human Resources Department


("HR"). The results ofany such investigation shall be provided to the complainant in
writing within seven (7) days of the completion of the investigation, which shall
occur no later than one year after receipt of the complaint absent extraordinary
circumstances that require a longer investigation. Complainants and witnesses
shall not be asked to provide their immigration status at any point during the
complaint process, and no investigation ofthe immigration status ofthe complainant

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.

SECTION II: Severability. If a subsection of this section is found to be invalid for

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

APPROVED AS TO FORM AND LEGALITY:


Michael J. O'Connell
Jefferson County Attorney
LOUISVILEe METRO COUNCIL
READ AND PASSED

0-342-17 Immigration LMCO 39 Amendment bySub 10-18-17.docx

8
(©fftcc af tl|£ ^ttarxiB^ (icmral
3ila0[fingt0n, p.Cd. 20530
May 22, 2017

MEMORANDUM FOR ALL DEPARTMENT GRANT-Mi^( ^ING COMPONENTS

FROM: THE ATTORNEY GENERAJ

SUBJECT: Implementation of Executive Oraer 13768,


"Enhancing Public Safety in tlife Interior of the United States"

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.

The President has established immigration enforcement as a priority for this


Administration and, in furtherance of that priority, issued Executive Order 13768, "Enhancing
Public Safety in the Interior of the United States," on January 25,2017. The Executive Order
makes clear that "[i]t is the policy of the executive branch to ensure, to the fullest extent of the
law, that a State, or a political subdivision of a State, shall comply with 8 U.S.C. 1373." To
accomplish this policy, section 9(a) of the Executive Order provides, in part:
[T]he Attorney General and the Secretary [of Homeland Security], in their discretion and
to the extent consistent with law, shall ensure that jurisdictions that willfully refuse to
comply with 8 U.S.C. 1373 (sanctuary jurisdictions) are not eligible to receive Federal
grants, except as deemed necessary for law enforcement purposes by the Attorney
General or the Secretary. The Secretary has the authority to designate, in his discretion
and to the extent consistent with law, a jurisdiction as a sanctuary jurisdiction.
Section 1373 provides in part that state and local jurisdictions "may not prohibit, or in any way
restrict, any government entity or official from sending to, or receiving from, [federal
immigration officers] information regarding the citizenship or immigration status, lawful or
unlawful, of any individual." 8 U.S.C. § 1373(a).
In accordance with my duties as Attorney General, I have determined that section 9(a) of
the Executive Order, which is directed to the Attorney General and the Secretary of Homeland
Security, will be applied solely to federal grants administered by the Department of Justice or the
Department of Homeland Security, and not to other sources of federal funding. Section 9(a)
expressly requires enforcement "to the extent consistent with law," and therefore does not call
for the imposition of grant conditions that would violate any applicable constitutional or
Memorandum for All Department Grant-Making Components Page 2
Subject: Implementation of Executive Order 13768,
"Enhancing Public Safety in the Interior of the United States"

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.