Justiciability at the Court’s Discretion—A Brief Comment on County of Santa Clara v. Donald Trump

A federal court recently issued an injunction against Section 9(a) of Executive Order 13768, known as the Sanctuary Cities order. The County of Santa Clara and City and County of San Francisco (“the Counties”) sought the injunction, arguing that the Sanctuary Cities order violates separation of powers by vesting the Executive with congressional spending powers, violates the Tenth Amendment by attempting to commandeer local jurisdictions, and violates the Due Process Clause as it is impermissibly vague. The Counties needed to demonstrate that they would face immediate irreparable harm absent an injunction in order to show constitutional standing for an order by the court enjoining enforcement of the Section 9(a) of the Sanctuary Cities order.

The district court’s opinion relies on the uncertain application of the Sanctuary Cities order, some public statements made by the Trump administration regarding sanctuary cities in California, among them Santa Clara and San Francisco, and the Counties’ claim that they face a present injury in the form of “budgetary uncertainty.” The district court held that the Counties demonstrated a likelihood of success on the merits and that they face immediately irreparable harm absent the injunction.

The Government argued that no credible or direct threat of enforcement against Santa Clara or San Francisco had been issued by the Executive and that “budgetary uncertainty” was too abstract an injury to satisfy the injury in fact requirement to the Counties’ standing to pursue the injunction. The district court was unpersuaded by the Government’s arguments.

Whether and to what extent the district court ruled correctly is up for debate. It is worth noting here that standing remains an elusive judicial concept. Though courts consider standing a constitutional mandate which limits judicial power to adjudicate a matter, courts across the United States inconsistently apply standing, both its constitutional and prudential requirements. The United States Supreme Court once admitted: “We need not mince words when we say that the concept of Art. III standing has not been defined with complete consistency in all of the various cases decided by this Court.” Valley Forge Christian College v. Americans United for Separation of Church & State, 454 U.S. 464, 475 (1982).

Consider, for example, City of Los Angeles v. Lyons, 461 U.S. 95 (1983). Law enforcement officers pulled Adolph Lyons (a black male) over for a minor traffic violation. During the stop, officers ordered Lyons out of his vehicle and ordered him to his knees with his hands behind his head. After Lyons complied, an officer aggressively grabbed Lyons’ hands, at which point Lyons complained that his car keys were rubbing into his head. The officer then placed Lyons in a choke-hold until Lyons went unconscious. He regained consciousness, spitting up blood and dirt, and found that he had urinated and defecated in his pants. The officers issued him a traffic citation and released let him go.

Lyons sued the City of Los Angeles for constitutional violations, seeking damages, and also sought declaratory and injunctive relief. The evidence demonstrated that LAPD officers were authorized to deploy a choke-hold at their discretion and that officers were trained to maintain the hold until the suspect goes limp, that officers were instructed that a choke-hold could be maintained up to four minutes, but were never told that the choke-hold method could cause death if applied for just two seconds. The evidence also demonstrated that sixteen people had died as a result of LAPD’s choke-hold policy, twelve of whom were black males, and nine of those deaths followed a mere forty second choke-hold. The district court issued a preliminary injunction against LAPD’s choke-hold policy, holding that the use of such choke-holds constitutes “deadly force” and that the city may not constitutionally authorize the use of deadly force “in situations where death or serious bodily injury is not threatened.” The decision was affirmed by the Ninth Circuit Court of Appeals.

In a 5-4 decision, the United States Supreme Court reversed. A litigant is required to show a real and immediate threat of injury, not conjectural or hypothetical. The Court reasoned from precedence that past illegal conduct provides evidence bearing on whether a real and immediate threat of repeated injury exists, but that, in cases such as Lyons, the prospect of future harm is tied to the likelihood that Lyons, personally, would again be subject to the choke-hold policy. In order to show standing, Lyons would have to allege that he would have another encounter with LAPD and “either (1) that all police officers in Los Angeles always choke any citizen with whom they happen to have an encounter, whether for purpose of arrest, issuing a citation, or for questioning, or (2) that the City ordered or authorized police officers to act in such a manner. Even though Lyons alleged that choke-holds were authorized, the Court reasoned that Lyons did not indicate why he, personally, might be realistically threatened by police officers.

The Court placed importance on an assumption from an early and similar case, Oshea v. Littelton. The Court in Oshea held plaintiffs lacked standing to pursue an injunction against illegal bond-setting, sentencing, and jury fee practices in criminal cases in Ciao, Illinois.  When dealing with prospect of future injury, the Court reasoned: “We assume that [the plaintiffs] will conduct their activities within the law and so avoid prosecution and conviction as well as exposure to the challenged course of conduct. . . .” The Lyons Court repeated this assumption.

Back to County of Santa Clara v. Trump. What makes the Counties’ situation distinguishable from Lyons or Oshea’s situations? What about the court’s reasoning in County of Santa Clara marks some distinction in future prospect of harm to the Counties, compared to the prospect of future harm to Lyons or Oshea? These are all questions that will likely play a role on Appeal. These are also questions which jurists must consider generally when considering how standing principles apply to different cases. These are also questions whose answers at time become question-begging due to the elusive nature of standing. 

The order from the United States District Court for the Northern District of California can be found on the court's website: https://www.cand.uscourts.gov/who/sanctuary-litigation