Council signs off on COPS grant, but questions remain - Albuquerque Journal

Council signs off on COPS grant, but questions remain

A group of cadets stands during a graduation ceremony two years ago. The city is pursuing grant money to hire 40 additional officers over the next three years.  (Jim Thompson/Albuquerque Journal)

Copyright © 2020 Albuquerque Journal

After receiving approval from the City Council Wednesday evening, Mayor Tim Keller’s administration plans to finalize approval of a much-discussed grant agreement with the Department of Justice for the city to receive nearly $10 million to hire about 40 police officers.

But Albuquerque still may not get the money any time soon due to its status as an immigrant-friendly city.

U.S. Attorney John Anderson

In February, the U.S. Attorney for New Mexico, John Anderson, pointed out that one of the conditions of the grant agreement – funding that was initially offered under the federal Operation Relentless Pursuit – is that the city complies with a provision in federal law that bars municipalities from prohibiting employees from sharing information about an individual’s immigration status with federal law enforcement. He said in order to receive the $9.7 million, the city has to certify that it complies with that law and it might not do that since it is a so-called Sanctuary City.

But the city doesn’t believe its immigrant-friendly resolution violates the law in question – 8 U.S.C. § 1373 – and attorneys say they can take it to court if need be.

Ahead of the city council meeting, Lindsay Van Meter, an assistant city attorney, said that while the city has not yet signed the grant agreement, it has taken the position that its immigrant-friendly policy does not violate the federal law and therefore does not violate conditions in the grant. She referenced a recent court ruling in California where a judge sided with San Francisco against U.S. Attorney General William Barr on the same issue, as well as other court rulings and legal interpretations of the federal law and the city’s resolution.

“When you look at 8 U.S.C. § 1373, it says, notwithstanding any provision of law, the local government entity or official may not prohibit or restrict any government entity or official from sending to or receiving from the Immigration and Naturalization Service information regarding the citizenship or the immigration status, lawful or unlawful, of any individual,” she said. “It’s solely those two things: citizenship or immigration status. … The court said California’s policy did not prohibit sending to or receiving from the Immigration and Naturalization Service citizenship or immigration status. It prohibited other things, like place of birth, or national origin. That is consistent with how our ordinance is written.”

Chief Administrative Officer Sarita Nair has also said that because the city does not ask for or collect individuals’ immigration or citizenship status, it has nothing to share with the federal government.

In a letter sent to Police Chief Michael Geier in March, U.S. Attorney Anderson said his office could not include a provision the city wanted to insert in a memorandum of understanding that stated its policies comply with the federal immigration law.

“The U.S. Attorney’s Office is not in a position to offer (the Albuquerque Police Department) or the City an advisory legal opinion with respect to the scope and meaning of City policies and resolutions, or their compliance with federal law,” Anderson wrote.

However, when asked directly this week whether the Department of Justice believes the city’s immigrant-friendly ordinance clashes with the grant’s conditions, he said: “The City’s April 24, 2018, resolution provides that nothing in the ‘resolution shall be construed or implemented to conflict with any valid and enforceable duty or obligation imposed by … any federal … law.’ Title 8 U.S.C. § 1373 is a valid federal law and the DOJ obviously views it as such.”

One of 7 cities

The resolution to approve and authorize the grant agreement passed after more than an hour of discussion Wednesday evening. Four councilors – Brook Bassan, Cynthia Borrego, Diane Gibson and Isaac Benton – had gone to Washington, D.C., earlier this year, prior to the COVID-19 pandemic, to talk to the Office of Community Oriented Policing Services (COPS) about the grant. The COPS office is a division of the Department of Justice that provides grant funding.

“We really had good discussions with them,” Bassan said at Wednesday’s meeting. “We were really assured that this would be something beneficial to reduce violent crime in Albuquerque and I think that is something we can all see that has been increasing significantly.”

Last year, Albuquerque was one of seven cities nationwide tagged for Operation Relentless Pursuit, which included a $9.7 million grant to hire officers. That operation was cut short and a new initiative – Operation Legend – took its place, with the grant still available.

Seven councilors voted for the resolution, but councilors Pat Davis and Lan Sena voted against it after Sena requested more information on specific conditions of the grant and how it would impact communities of color. Sena said she was concerned that she had not personally been able to read the grant agreement.

“It’s not that I’m against funding from the federal government to hire more officers, I think that the COPS program has produced opportunities for us to comply with the (Court Approved Settlement Agreement), to hire more officers, to free up funds …,” Sena said. “Without reading the terms and conditions, it’s difficult for me to say ‘yes.’ ”

According to the resolution, the grant will pay 100% of entry-level salaries and benefits of newly hired or re-hired full-time sworn career officers over a period of three years. More experienced officers would then join federal task forces in the area.

In an interview, Davis said the money would help the city, but the mayor’s proposed budget already allots funding to hire 100 additional officers next year.

“We have the local funds to do that,” Davis said. “Were the feds to give us this money, it would essentially be a downpayment on hiring in future years … but we have already programed local dollars for the hiring of officers next year and we can afford to do it. So, we’re going to keep doing that.”

A possible non-issue

The dispute over local governments accessing these federal dollars has already played out in court several times, with federal judges ruling in favor of immigrant-friendly cities across the country.

Last year, a judge in Illinois ruled against U.S. Attorney General Barr, finding he cannot require compliance with statutes related to immigration law as a condition of a different federal grant.

That case was filed by the U.S. Conference of Mayors, of which Albuquerque is part, and Van Meter said the city has received money from a grant in relation to that ruling.

In 2018, the city was awarded a federal grant of $452,108 for a Crime Gun Intelligence center to improve its ability to investigate shootings. It has not received that money due to the same conditions attached to the $9.7 million COPS office grant. In April, the city filed a lawsuit against Attorney General Barr asking a judge to declare the immigration conditions attached to the Gun Intelligence Center grant unlawful and to give the city the money. That case is pending.

Van Meter said she doesn’t know how the DOJ will react to the city’s position that it isn’t violating immigration conditions for the COPS office grant, but that will inform how the city moves forward.

In late July, City Attorney Esteban Aguilar Jr. wrote to the COPS office accepting the $9.7 million grant, saying he interprets the conditions relating to 8 U.S.C. § 1373 along the lines of the recent court ruling that sided with San Francisco against the AG. Anderson has since said he has been told the letter does not qualify as an acceptance of the grant award.

Van Meter said if the city accepts the grant and it re-sends the letter, the situation could play out similar to previous cases.

“At that point, the Department of Justice could withhold funds and say ‘no, we don’t agree with you,’ ” Van Meter said. “Depending on how they respond, … the city has to consider whether it wants to pursue legal action or not.”

Ultimately, Davis said, it might not matter after the next presidential election.

“Honestly, all of this may be an exercise in running out the clock on both sides,” Davis said. “Depending on what happens on Nov. 3, this may ultimately be a non-issue for the next (presidential) administration.”

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