15-72440 #11 Plaintiffs' Opp to Motion to Stay

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FOR THE NINTH CIRCUIT
In re JOSEPH M. ARPAIO, in his official capacity as Sheriff of M
County, Arizona
v.
THE DISTRICT OF ARIZONA,
Plaintiffs/Real Parties in Interest.
FOR THE DISTRICT OF ARIZONA
2:07-cv-02513-GMS
PLAINTIFFS-APPELLEES’ RESPONSE IN OPPOSITION
Stanley Young
Michelle Morin
Redwood shores, CA 94065-1418
ACLU FOUNDATION OF ARIZONA 3707 N. 7th St., Ste. 235
Phoenix, AZ 85014
Telephone: (602) 650-1854
Facsimile: (602) 650-1376
Los Angeles, CA 90014
IMMIGRANTS’ RIGHTS PROJECT
39 Drumm Street
[email protected]
Law 4800-P
Telephone: (212) 549-2676
Facsimile: (212) 549-2654
Case: 15-72440, 09/03/2015, ID: 9672081, DktEntry: 11-1, Page 2
8/20/2019 15-72440 #11 Plaintiffs' Opp to Motion to Stay
Law .......................................................................................
ARGUMENT ............................................................................................
I. Petitioners Fail to Show Likelihood of Success on the Merits. .....
A.
The District Court Correctly Declined to Recuse Itself in 20 B. Petitioners’ Recusal Motion Was Untimely in the District
Court, and Remains Untimely Now. ....................................
C. Petitioners’ Assertion That the District Court and His Spou
Are Material Witnesses Is Unsupported. .............................
D. As Plaintiffs Should Not Be Allowed To Manufacture A B For Judicial Disqualification, No Reasonable Observer Wo
Perceive An Appearance of Bias. .........................................
E. Petitioners’ Assertions Regarding “Extrajudicial Investigat
by the Court Are Also Unsupported. ....................................
F. The District Court Has Authority to Modify the Monitor’s in Response to Defendants’ Continued Recalcitrance. ........
G. The District Court Has Not Denied Petitioners Due Process
II. Petitioners Will Not Be Irreparably Injured Absent a Stay. ...........
449 U.S. 33 (1980) .................................................................................................
Barba-Reyes v. United States, 387 F.2d 91 (9th Cir. 1967) ...................................................................................
Bauman v. United States Dist. Ct., 557 F.2d 650 (9th Cir. 1977) .................................................................................
Cheney v. United States Dist. Ct. for D.C.,
542 U.S. 367 (2004) ...............................................................................................
Clemens v. U.S. Dist. Ct. for the Central Dist. of California,
428 F.3d 1175 (9th Cir. 2005) ...............................................................................
E. & J. Gallo Winery v. Gallo Cattle Co.,
967 F.2d 1280 (9th Cir. 1992) ...............................................................................
Hutto v. Finney,
In re Mercedes-Benz Antitrust Litigation,
226 F. Supp. 2d 552 (D. N. J. 2002) ......................................................................
Molina v. Rison, 886 F.2d 1124 (9th Cir. 1989) ...............................................................................
Nken v. Holder , 556 U.S. 418 (2009) ...............................................................................................
In re Union Leader Corp.,
292 F.2d 381 (1st Cir. 1961) ..................................................................................
United States v. Bray, 546 F.2d 851 (10th Cir. 1976) ...............................................................................
United States v. Cerrella,
United States v. Fujimoto,
United States v. Garrison,
United States v. Holland ,
United States v. Spangle, 626 F.3d 488 (9th Cir. 2010) .................................................................................
United States v. Studley, 783 F.2d 934 (9th Cir. 1986) .................................................................................
United States v. Yonkers Bd. of Educ.,
946 F.2d 180 (2d Cir. 1991)...................................................................................
STATUTES
INTRODUCTION
Plaintiffs/Appellees oppose the motion to stay the district court pr
pending resolution of Sheriff Arpaio’s and Chief Deputy Sheridan’s (“P
request for a writ of mandamus (Dkt. 8-1). Petitioners have not met thei
substantial burden of proving that the district court is biased against them
cannot show clear error in the court’s well-reasoned 40-page order deny
untimely and unsubstantiated recusal motion. Through their defiant effo
receiving adverse rulings, to undermine the district court judge, Petition
themselves have created and/or injected into the case the grounds that th
cite in their attempt to disqualify him. A stay would compound their atte
manipulation, causing even further damage to the plaintiff class by delay
compensation for illegal detentions.
Petitioners also fail to show that any errors by the district court in
unresolved contempt proceedings would not be adequately remedied on
and they have not demonstrated that the circumstances of this case warr
extraordinary relief they seek. The motion to stay should be denied.
STATEMENT OF RELEVANT FACTS
district court preliminarily enjoined MCSO from detaining persons base
suspicion that they were in this country illegally. Dkt. 494 (Ex. 1) at 40.
bench trial, the district court found in 2013 that MCSO had violated the
Constitution and the preliminary injunction, and ordered remedial injun
including appointment of a Monitor. Dkt. 579 (Ex. 5) at 139-42; Dkt. 60
Evidence of Contempt
Defendants have on multiple occasions defied and undermined th
court’s orders. 2 For example, in October 2013, just days after the Court
Supplemental Injunction, Sheriff Arpaio publicly mocked the district co
requirement (later withdrawn) that MCSO engage in community outreac
remedy past violations and build trust, and announced plans for a large-
saturation patrol (of the same general type that had been found to violat
Constitution), stating that “some courts want community outreach. I jus
Apr. 23, 2015 Tr. (Ex. 30) 579:4-580:24. During a briefing prior to that
Chief Deputy Sheridan directed deputies not to take seriously the Court
1 Docket citations, except to Dkt. 1-2 (Petition) and 8-1 (Petitioners’ mo
to No. 07-cv-2513 (D. Ariz.). “Petitioners” refers to Sheriff Arpaio and
Chief Sheridan. “Defendants” refer to MCSO (subsequently replaced by

that they track the race or ethnicity of individuals whom they stop. Apr.
Tr. (Ex. 31) 908:7-917:19. After that operation, Arpaio declared that “no
going to take away my authority that I have under the Constitution.” Ap
Tr. (Ex. 30) 581:25-582:16. Top MCSO officials mischaracterized the D
court’s findings, requiring a corrective message to be sent to MSCO em
that they could understand the court orders that they were supposed to f
Dkts. 680 (Ex. 8), 684 (Ex. 9).
Other violations remain yet unaddressed. On January 8, 2015, Pla
requested an order to show cause (“OSC”) why Petitioners should not b
contempt. Dkt. 843 (Ex. 10). The district court granted the motion for an
February 12, 2015, citing three grounds: violation of the December 23, 2
preliminary injunction barring MSCO from detaining individuals based
suspected unauthorized presence in the United States, violation of a May
order that Petitioners cooperate with the Monitor to collect newly-revea
of MCSO’s traffic stops, and violation of Petitioners’ pretrial discovery
in relation to the withheld videos. Dkt. 880 (Ex. 12) at 9-25. On March
Petitioners admitted civil contempt on all three grounds, and stated that

district court denied the motion to vacate after Respondents opposed the
the ground that a hearing was still needed to determine the facts relating
admitted contempt and to determine appropriate remedies. Dkt. 1004 (E
In April 2015, the district court commenced the contempt hearing
both to determine the scope of and circumstances surrounding the admit
contempt, and to determine appropriate remedies. Dkt. 1007 (Ex. 16) at
district court indicated that it would consider evidence regarding the ade
MCSO’s internal investigations in relation to these issues. Dkt. 1150 (E
(citing, e.g., Mar. 20, 2015 Tr. (Ex. 28) 11:6-12, 12:21-25, 13:1-21); Ap
Tr. (Ex. 30) 630:7-642:14.
During the contempt hearing, counsel and the district court 3 quest
Petitioners about a June 4, 2014 Phoenix New Times article (Dkt. 1166 (
Ex. A), and its allegation that MCSO was paying Dennis Montgomery,
confidential informant and former CIA consultant, to investigate the dis
judge for collusion with the U.S. Department of Justice and plaintiffs’ c
Dkt. 1164 (Ex. 21) at 7-10; Apr. 23, 2015 Tr. (Ex. 30) 642-53; Apr. 24,
3 At the outset of the April 2015 hearing the district court noted that it w
(Ex. 31) 958-67, 998-1008. Petitioners acknowledged that they had insti
an investigation, but testified that the information that they had received
Montgomery appeared to be “junk.” Dkt. 1164 (Ex. 21) at 9 (citing Apr
2015 Tr. (Exs. 30-31) 650:18-25, 652:16-18, 961:1-11, 1003:1-2, 19-29
Documents later produced by Defendants suggested that, although they
November 2014 that Montgomery’s information was false and fraudule
continued to push Montgomery for work product until the eve of the Ap
contempt hearings. Dkt. 1164 (Ex. 21) at 10; Dkt. 1166 (Ex. 22) at Exs.
document suggests that an investigator at the MCSO itself leaked the in
about the MCSO-Montgomery investigation to the Phoenix New Times.
B. The district court authorized the Monitor to collect documents and co
additional interviews on the matter, and invited Petitioners to address
inconsistencies between their testimony and the documents during resum
contempt hearings. Dkt. 1164 (Ex. 21) at 10.
During the district court’s April 2015 questioning about the Mont
investigation described in the New Times article, Sheriff Arpaio brought
additional investigation of the district court judge’s wife, which his coun

his family. See, e.g., Apr. 23-24, 2015 Tr. (Exs. 30-31) 642:17-655:12,
968:9; Dkt. 1164 (Ex. 21) at 10:18-20 (“The second investigation, the ‘G
matter,’ came to light during the Court’s questioning of Sheriff Arpaio a
Montgomery investigation; the Court was unaware of the Grissom matte
Sheriff Arpaio testified to its existence.”). Petitioners stated that Ms. Gr
alleged in 2013 that the judge’s wife had commented to her that the judg
to do everything to make sure that [Sheriff Arpaio was] not elected.” Dk
(Ex. 20) at 4 (citing, e.g., Apr. 23, 2015 Tr. (Ex. 30) 654:6-655:12); Dkt
21) at 10-13. Petitioners and their counsel investigated this matter, conc
Grissom’s information was “fundamentally flawed” and “let the matter
1164 (Ex. 21) at 31; Dkt. 1115 (Ex. 18) at 4 (use of the Grissom informa
be unethical); id. at 7-9, 18-19; Dkt. 1166 (Ex. 22) Ex. H at 4; Dkt. 1150
at 4-5 (citing Apr. 24, 2015 Tr. (Ex. 31) 968:5-9; May 14, 2015 (Ex. 32
24). The district court considers the Grissom matter closed and irrelevan
ongoing contempt hearing. Aug. 21, 2015 Tr. (Ex. 33) 46:16-48:7, e.g.,
57:4-60:12.
Petiti oners’ Knowledge Regarding the Distri ct Court’ s Brother-in-L aw

and stated that they had isolated the brother-in-law from any role in or p
financial benefit from the firm’s involvement in the case. Dkt. 542 (Ex.
district judge considered the underlying circumstances of his brother-in-
employment and the views of the parties, and concluded that recusal wa
necessary. The district court’s reasons included that Covington is a very
firm, the brother-in-law was in a different practice area than Plaintiffs’ a
any benefit the brother-in-law might receive as a result of any fee award
was speculative, and in the event of a fee award, the brother-in-law wou
no financial distribution from the proceeding. Dkt. 542 (Ex. 4) at 3-4; Ju
2012 Letter from S. Young (Ex. 35). The district court allowed the parti
heard, and Sheriff Arpaio expressly waived any recusal argument premi
these facts, both orally during a status conference and in a written filing
(Ex. 4) at 4; Dkt. 1150 (Ex. 20) at 11; Dkt. 537 (Ex. 2); June 29, 2012 T
at 5:19-7:2, 16:6-17:2; Dkt. 541 (Ex. 3) (written waiver).
Chief Deputy Sheridan became a formal individual participant in
litigation on February 12, 2015, when he was named as a contemnor. Dk
12). He did not seek the district court judge’s recusal at that time, nor at
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Petitioners’ recusal motion in the district court cited the Grissom,
Montgomery and Covington issues. On July 10, 2015, the district court
40-page order denying the motion. Dkt. 1164 (Ex. 21). Petitioners filed
for writ of mandamus, which remains pending without a request for resp
1-2. Petitioners subsequently tacked on the present motion. Dkt. 8-1.
ARGUMENT
I.
Petitioners Fail to Show Likelihood of Success on the Merits.
A writ of mandamus is an extraordinary remedy, warranted only i
extraordinary circumstances. Allied Chemical Corp. v. Daiflon, Inc., 44
34 (1980); Cheney v. United States Dist. Ct. for D.C., 542 U.S. 367, 380
Before a writ may issue, the party seeking it must show that it has no oth
adequate means to obtain the relief it desires, that its right to issuance of
“clear and indisputable,” and that the writ is appropriate under the circu
Id. at 381 (internal quotation omitted). A stay of the district court litigat
resolution of Petitioner’s request for a writ would be even more extraord
li f Nk H ld 556 U S 418 434 (2009) (“ t h i ” f l
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clear error in the district court’s orders. Clemens v. U.S. Dist. Ct. for the
Dist. of California, 428 F.3d 1175, 1178, 1180 (9th Cir. 2005); see also
United States Dist. Ct., 557 F.2d 650, 654-55 (9th Cir. 1977). Petitioner
make that showing, because, in light of the circumstances of this litigati
reasonable person would not be convinced that the district court was bia
them. In re Marshall , 721 F.3d 1032, 1041 (9th Cir. 2013) (“It is well es
that the recusal inquiry must be made from the perspective of a reasonab
observer who is informed of all surrounding facts and circumstances.”).
also cannot show that the district court committed clear error; and even
error, Petitioners cannot show that the error cannot be addressed through
A.
The district court gave full consideration to the issues potentially
from his brother-in-law’s employment at Covington & Burling in 2012,
considering competing authorities on the issue of recusal in light of a re
status as equity partner in a law firm that represents a party. Dkt. 542 (E
(discussing Advisory Opinion 58). The district court correctly conclude
authorities did not create a per se rule of recusal, but only recognized th
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see also Pashaian v. Eccelston Props., Ltd., 88 F.3d 77, 83 (2d Cir. 199
would simply be unrealistic to assume . . . that partners in today’s law fi
invariably ‘have an interest that could be substantially affected by the ou
any case in which any other partner is involved.”).
The district court in 2012 offered to recuse itself on the request of
Dkt. 537 (Ex. 2) at 7; Dkt. 542 (Ex. 4) at 4; June 29, 2012 Tr. (Ex. 26),
23. Defendants not only did not request recusal at that time, but affirmat
requested that the district court not recuse itself. Id. at 15, 19-20; Dkt. 54
(waiver of “any and all appeal issues regarding only the Court’s potenti
impartiality, and/or conflict of interest as set forth in the Court’s Order d
19, 2012.”). In light of the lack of any financial benefit to the brother-in
even in the event of a fee award to Plaintiffs, the district court judge pro
concluded that he had no interest that could be substantially affected by
outcome of the proceedings. Dkt. 542 (Ex. 4) at 7; see also June 14, 201
from S. Young (Ex. 35). The court has “as strong a duty to sit when ther
legitimate reason to recuse as he does to recuse when the law and facts r
and recusal here would not merely have been unwarranted, it would hav
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and Remains Untimely Now.
Sheriff Arpaio learned of the district court judge’s brother-in-law
relationship in 2012. Both Petitioners commenced and abandoned the G
investigation in 2013, and instigated the Montgomery investigation no l
2014. Chief Deputy Sheridan formally joined the case as a contemnor o
12, 2015, but had been involved as Arpaio’s second-in-command at MC
years prior, including at a May 14, 2014 status conference and during M
period of compliance and reporting to the court-ordered Monitor throug
of 2014. Arpaio and Sheridan together made a motion to vacate the cont
hearing in March 2015, without contesting the district court’s impartiali
after denial of that motion (Dkt. 1007 (Ex. 16)), and after the start of the
the contempt OSC, did they file their May 22, 2015 recusal motion.
Petitioners’ recusal motion was not made with the required “reaso
promptness” after the grounds for the motion were ascertained. The dist
could have denied the motion on this basis alone. Preston v. U. S., 923 F
733 (9th Cir. 1991) (recusal motions must be made “with reasonable pro
after the ground for such a motion is ascertained”); see also Molina v. R
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the information to the court’s attention.”); E. & J. Gallo Winery v. Gallo
Co., 967 F.2d 1280, 1295 (9th Cir. 1992) (recusal motion untimely whe
long after movant became aware of grounds for refusal, and after movan
adverse ruling).
C. Petitioners’ Assertion That the District Court and His S
Material Witnesses Is Unsupported.
Petitioners fail to explain how the Grissom statements would mak
district court or his spouse a “material witness” in contempt proceeding
relate to MCSO and Petitioners’ admitted failure to comply with the dis
orders. The contempt proceedings have nothing to do with the district co
spouse or her views, which are not admissible evidence of the court’s st
mind. In 2013, after full investigation, Petitioners chose to disregard the
statements. Petitioners themselves even argued that the facts underlying
Grissom investigation did not relate to the contempt proceedings. Dkt. 1
21) at 31. The district court considered these matters when Petitioners fi
recusal motion in the district court, concluding that there was no actual
Petitioners, and recusal was therefore not warranted under 28 U.S.C. § 4
Id. at 25-34. There is no factual issue here on which Ms. Snow would be
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D. As Plaintiffs Should Not Be Allowed To Manufacture A
Judicial Disqualification, No Reasonable Observer Wou
Perceive An Appearance of Bias.
The district court’s order (Dkt. 1164 (Ex. 21)) explains at length w
is not warranted under 28 U.S.C. § 455(a). Petitioners’ own decisions to
investigate the district court judge should not be the basis for a recusal m
United States v. Studley, 783 F.2d 934, 940 (9th Cir. 1986). Otherwise,
could readily manipulate the system . . . [and] force delays . . . . Such bl
manipulation would subvert our processes, undermine our notions of fai
justice, and damage the public’s perception of the judiciary.”4 United St
Holland , 519 F.3d 909, 915 (9th Cir. 2008); see also United States v. Sp
F.3d 488, 496 (9th Cir. 2010) (properly declining recusal, even after per
information about judge and judge’s family was found in defendant’s ca
The district court has stated that, in its view, the Grissom matter i
to the contempt proceeding (while not precluding Petitioners themselve
raising it). See, e.g., Aug. 21, 2015 Tr. (Ex. 33) 47:2-14, 56:16-23. Petit
not of their own volition raise the issue and seek to make the district cou
4 Numerous cases have held that “a party cannot effect recusal of the tri
the party’s own actions ” such as through statements critical of the judg
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wife a material witness and on that basis seek the judge’s recusal.
Similarly, Petitioners should not be able to commence a bogus co
investigation against the judge, and then argue that the judge is biased b
thinks that the MCSO should have allocated its resources differently. As
district court stated:
Sheriff Arpaio began a time- and resource-intensive operation inv
Montgomery at a time when MCSO was under an obligation to im
the Supplemental Permanent Injunction. To the extent that MCSO
been trying to use Montgomery to discredit the Court and underm
legitimacy of its judgment in the underlying lawsuit, these facts a
to the attitude that Defendants have toward the Court and its ordethe corrective measures that may be necessary to remedy Movant
and achieve the implementation of the permanent injunctive relie
be particularly germane in light of the evidence that MCSO appar
continued to press Mr. Montgomery for work product up until the
show-cause hearings even after his credibility was found to be lac
Dkt. 1164 (Ex. 21) at 27-28. A stay under such circumstances would on
defiance and manipulation. Petitioner’s motion should be denied.
E.
by the Court Are Also Unsupported.
Petitioners appear to argue that the district court may not ever spe
Monitor, whose job it is to help ensure compliance with the court’s orde
regarding matters relating to the issues in the contempt hearing. Dkt. 8-
, , , y , g

district court in order to perform his function of overseeing Defendants’
compliance with the court’s orders. United States v. Yonkers Bd. of Edu
180, 184 (2d Cir. 1991) (denying motion to recuse based on communica
between judge and court-appointed outside housing advisor). Neither 28
455, nor any other authority, prevents a district court from communicati
own Monitor. And notably, the communication about which Petitioners
Dkt. 8-1 at 6, was simply the Monitor’s “unprompted” comment during
proceedings, to the effect that MCSO and the volunteer “Cold Case Pos
have separate finances—consistent with Sheriff Arpaio’s testimony that
County had not paid for a Cold Case Posse member’s trips to Seattle. Th
not take the Monitor’s comment at face value, but instead asked Sheriff
about the financing of the Cold Case Posse, giving him a chance to resp
record. See Dkt. 1164 (Ex. 21) at 20 (informing the parties, and noting t
evidence on this matter is that put in through Sheriff Arpaio’s testimony
district court correctly held that the Monitor’s comment “did not provid
with the kind of substantive information about proceedings that ‘cannot
controverted or tested by the tools of the adversary process.’” Id.
implement corrective reforms to address MCSO’s constitutional violatio
information and the court’s resulting opinions are not a basis for recusal
the “rarest of circumstances” need a court recuse itself on the basis of kn
or opinion gained in its judicial capacity or its statements about that kno
opinion, made during judicial proceedings. Holland , 519 F.3d at 913-14
United States, 510 U.S. 540, 551 (1994) (“judge is not . . . recusable for
prejudice” for “knowledge and . . . opinion . . . [that] were properly and
acquired in the course of the proceedings, and are indeed sometimes (as
trial) necessary to completion of the judge’s task”).
F.
Response to Defendants’ Continued Recalcitrance.
In addition to its authority to communicate with the Monitor, the
court also possesses broad equitable authority to modify the monitoring
compliance tasks it delegates to that Monitor. The district court has been
undertake substantial judicial corrective action to address MCSO’s nonc
with its orders, starting with MCSO’s violation of the preliminary injun
discovery violations, and continuing through the Petitioners’ admitted
disobedience of the district court’s order to work with the Monitor to co

gains” in compliance during the most recent reporting period); Dkt. 101
(Monitor’s Report). In light of that history, the district court was well w
power to authorize the Monitor to inquire into the sufficiency of MCSO
investigations process and the implications of the Montgomery investig
Whether MCSO’s and Petitioners’ actions reflect an attitude of resistanc
district court’s authority and/or inability to comply with its orders is hig
relevant to the scope and nature of the remedy for the admitted contemp
The court’s authority to modify its use of the Monitor remains cri
authority to remedy the constitutional violations at issue in this case. De
recently failed to comply with a court-ordered deadline to produce emai
relevant to the contempt issues and that had originally been ordered to b
in February 2015. Dkt. 1203 (Ex. 24), 1208 (Ex. 25); Aug. 21, 2015 Tr.
12:6-16:19. And at a status conference on August 28, 2015, Defendants
that 61-65 additional identification documents, including documents app
seized from members of the Plaintiffs’ class, have been found. Aug. 28,
(Ex. 34) 31:22-32:10. This disclosure suggests that, despite the previous
relating to the Monitor’s activities, further expansion or amendment of t

Cnty. Jail , 502 U.S. 367, 380-81 (1992); Hutto v. Finney, 437 U.S. 678,
(courts have “ample authority to go beyond earlier orders” to insure aga
inadequate compliance).
G. The District Court Has Not Denied Petitioners Due Pro
Petitioners’ assertion that they have been denied due process is eq
baseless. First, the district court modified the Monitor’s authority in resp
serious and admitted breaches by Petitioners, as it is entitled to do. Seco
district court consistently gives all parties opportunities to be heard on a
including its intent to participate in questioning witnesses5 at the April c
hearing. See Apr. 21, 2015 Tr. (Ex. 29) 140:6-12. Petitioners will contin
the opportunity to be heard, as the contempt hearing has not concluded
scheduled to resume with up to 24 additional days of testimony. Dkt. 12
at 2. Third, Petitioners did not object to the district court’s general line o
the hearing, and their counsel successfully accepted the court’s invitatio
to individual questions when needed. See, e.g., Apr. 23, 2015 Tr. (Ex. 3
626:24. Because no objection was contemporaneously raised to the cour
questions regarding the Phoenix New Times article, this objection has be
II.
a “biased judge,” when proceedings would encompass MCSO’s internal
investigations and the Grissom and Montgomery investigations, warran
Dkt. 8-1 at 11. This argument fails.
First, Petitioners have not shown that any error could not be reme
through an appeal—nor could they, as the contempt hearing has not con
they do not know what remedies the district court will impose.
Second, Petitioners have waived objections to the subject of the c
hearings by failing to raise them before the district court. MCSO’s willi
ability to conduct internal investigations to prevent and to impose discip
constitutional violations is highly relevant to the ongoing proceedings, b
improvements in internal investigation procedures may be needed to rem
civil contempt. See, e.g., Dkt. 880 (Ex. 12) at 2-6, 8-9, 25-26; Dkt. 881(
2; Dkt. 1164 (Ex. 21) at 6-7. Petitioners have known this for months, as
been producing related documents to the Monitor and to Plaintiffs. See,

III. A Stay Would Substantially Injure the Plaintiffs’ Class by Fu
Delaying Relief, and Would Be Against the Public Interest.
Petitioners can show no irreparable injury from denial of the stay
contrast, a stay would substantially injure Plaintiffs by further delaying
compensation to those who were detained in violation of the December
preliminary injunction. Some of those victims may be those whose iden
documents the MCSO unlawfully seized; the current contempt proceedi
intended in part to locate those victims. See, e.g., Dec. 4, 2014 (Ex. 27)
21-22. The more time that passes, the fewer victims are likely to be loca
compensated. A stay would also further impede implementation of the
Supplemental Permanent Injunction. According to the most recent Mon
filed July 14, 2015, MCSO is in compliance with only 40.3% of the trac
remedies for the policies and procedures phase of implementation and 2
tracked remedies for the operational phase of implementation, and the M
reported that MCSO made “no appreciable gains” in compliance during
recent reporting period. Dkt. 1170 (Ex. 23) at 3, 7. A stay would substan
injure both the Plaintiff class and the public interest by allowing these
transgressions to continue unchecked.
Stanley Young Michelle Morin
Redwood Shores, CA 9406
Tammy Albarran
Telephone: (415) 591-7066
Facsimile: (415) 955-6566
Phoenix, AZ 85014
Telephone: (602) 650-1854
Facsimile: (602) 650-1376
New York, NY 10004
Los Angeles, California 90Telephone: (213) 629-2512
Facsimile: (213) 629-0266
Irvine, CA 92697-8000 Telephone: (949) 824-9894
Facsimile: (949) 824-0066
Attorneys for Plaintiffs-App
CERTIFICATE OF COMPLIANCE
I certify that pursuant to Fed. R. App. P. 27-1, the attached brief i
compliance with Fed. R. App. P. 27(d) and does not exceed 20 pages.
Date: September 3, 2015 /s/ Stanley Young
STANLEY YOUNG
CERTIFICATE OF SERVICE
I hereby certify that on September 3, 2015, I electronically filed t
foregoing with the Clerk of the Court for the United States Court of App
the Ninth Circuit by using the appellate CM/ECF system.
Participants in the case who are registered CM/ECF users will be
the appellate CM/ECF system.
STANLEY YOUNG
Case: 15-72440, 09/03/2015, ID: 9672081, DktEntry: 11-2, Page 1 o
15-72440 Index of Materials
Exhibit Date Description
1 12/23/2011 No. CV07-2513, Dkt. 494 - Order on Motions for S
Judgment
2 06/19/2012 No. CV07-2513, Dkt. 537 - Order on Covington R
3 06/29/2012 No. CV07-2513, Dkt. 541 - Defendants’ Notice of
Limited Issue
4 07/03/2012 No. CV07-2513, Dkt. 542 - Order re Trial Proceed
5 05/24/2013 No. CV07-2513, Dkt. 579 - Court Findings of FactConclusions of Law
6 10/02/2013 No. CV07-2513, Dkt. 606 - Supplemental Permane
Injunction/Judgment Order
7 04/04/2014 No. CV07-2513, Dkt. 670 - Amendments to the Su
Permanent Injunction/Judgment Order
9 04/29/2014
April 17, 2014 Order
and Facts re Contempt Proceedings and Request fo
Show Cause
11 01/23/2015 No. CV07-2513, Dkt. 862-1 - Exhibit A to Plaintif
for Expedited Discovery
12 02/12/2015 No. CV07-2513, Dkt. 880 - Order to Show Cause
13 02/12/2015 No. CV07-2513, Dkt. 881 - Order re Plaintiffs’ Mo
Expedited Discovery
14 3/17/2015 No. CV07-2513, Dkt. 948 - Expedited Motion to V
Hearing and Request for Entry of Judgment
15 04/13/2015
Request for Entry of Judgment
16 04/14/2015 No. CV07-2513, Dkt. 1007 - Order on Defendants
Order to Show Cause
17 04/16/2015 No. CV07-2513, Dkt. 1010 - Third Report of Indep
Monitor for the Maricopa County Sheriff’s Office
18 05/21/2015 No. CV07-2513, Dkt. 1115 - Order re Work Produ
19 05/22/2015 No. CV07-2513, Dkt. 1117 - Motion for Recusal o
Di lifi i f Di i C J d G M
Manuel De Jesus Ortega Melendres Et Al
15-72440 Index of Materials
No. CV07-2513, Dkt. 1166 - Declaration of Cecill
Support of Plaintiffs’ Response in Opposition to Sh and Chief Deputy Sheridan’s Motion for Recusal o
Disqualification of the Court
23 07/14/2015 No. CV07-2513, Dkt. 1170 - Fourth Report of Inde
Monitor for the Maricopa County Sheriff’s Office
24 07/29/2015 No. CV07-2513, Dkt. 1203 - Defendants’ Statemen
Proposed Deadlines for Document Production
25 07/31/2015 No. CV07-2513, Dkt. 1208 - Order re Documents
to Marshalls
Transcript (Pgs. 18-19, 21-22)
(Pgs. 11-13)
29 04/21/2015 No. CV07-2513, April 21, 2015, Day 3 Evidentiary
Transcript (Pg. 140)
Transcript (Pgs. 579-582, 624-660)
Transcript (Pgs. 908-917, 958-968, 985-986, 998-1
32 05/14/2015 No. CV07-2513, May 14, 2015, Status Conference(Pg. 10)
33 08/21/2015 No. CV07-2513, August 21, 2015, Status Conferen
(Pgs. 12-16, 46-48, 57-60)
34 08/28/2015 No. CV07-2513, August 28, 2015, Status Conferen (Pgs. 31-32)
35 06/14/2012 Letter from Stanley Young to Judge Snow re Keith
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WO
FOR THE DISTRICT OF ARIZONA
Manuel de Jesus Ortega-Melendres, et al.,
Plaintiffs,
vs.
Joseph M. Arpaio, in his individual capacity as Sheriff of Maricopa County, Arizona, et al.,
Defendants.
Pending before the Court are Defendants’ Motion for Summary Ju
Plaintiffs’ Renewed Motion for Class Certification (Doc. 420), Plaintiff
Summary Judgment (Doc. 421), and Defendants’ Motion for Leave to Fi
469). At oral arguments on December 22, 2011, Plaintiffs moved for sum
Ortega-Melendres’s Fourth Amendment claims. (Doc. 490). For the re
Defendants’ motion for summary judgment is granted in part and denie
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BACKGROUND
1. Factual Background
This putative class action civil rights suit alleges that the Marico
Office (“MCSO”) engages in a policy or practice of racial profiling, an
persons without reasonable suspicion that criminal activity is afoot, in vi
rights under the Fourteenth and Fourth Amendments. (Doc. 26 ¶ 2). Unde
the Department of Immigration and Customs Enforcement (“ICE”), cert
had been certified to enforce federal civil immigration law. (Doc 413, Ex
between MCSO and ICE operated pursuant to section 287(g) of th
Nationality Act (“INA”), and the participating officers were therefor
certified. 8 U.S.C. § 1357(g) (2006). On October 16, 2009, the agreement
ICE was modified so that MCSO officers no longer had authority to e
immigration violations in the field, but could continue to do so in the ja
Plaintiffs allege that under the guise of enforcing immigration law, MCSO
engaged in a policy of racially profiling Latinos. (Doc. 26 ¶ 3).
The five named Plaintiffs were stopped by MCSO officers durin
September 27, 2007, December 7, 2007, and March 28, 2008. ( Id. ¶¶ 5
Somos America (“Somos”), a non-profit membership organization, c
members have been harmed by the alleged policy. ( Id. ¶ 10). In Count O
that MCSO has violated and is violating the Equal Protection Claus
Amendment. ( Id. ¶¶ 128–37). In Count Two, they allege that MCSO’s
Plaintiffs violated the Fourth Amendment, as applied to MCSO thro
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the search and seizure protections of Article II, Section 8 of the Arizona
( Id. ¶¶ 144–47). In Count Four, they argue that MCSO’s policy violates
Rights Act of 1964, which forbids race discrimination in federally fund
148–54). Plaintiffs seek certification of a class consisting of “All Latino
January 2007, have been or will be in the future, stopped, detained, que
by MCSO agents while driving or sitting in a vehicle on a public roadw
in Maricopa County, Arizona.” (Doc. 420 at 1). Plaintiffs seek only eq
form of a declaratory judgment, an injunction against Defendant, attorn
other relief as the Court deems just and proper.” (Doc. 26 at 28–29).
Defendants now move for summary judgment on all counts. Firs
Plaintiffs are not likely to suffer future injury, and that they therefore lac
equitable relief under the test established in City of Los Angeles v. Lyons,
(Doc. 413 at 14–17). Next, they argue that the vehicle traffic stops of t
were supported by probable cause, and that the Fourth Amend
Constitutional claims therefore fail under Whren v. U.S., 517 U.S. 806 (
18–22). Finally, they claim that the record shows that MCSO does not e
discrimination, and that the Fourteenth Amendment and Title VI claims
413 at 23–31). Plaintiffs seek summary judgment on Claim One an
certification of their proposed class. (Docs. 416, 420, 421).
2. Legal Background
In 1952, Congress passed the Immigration and Nationality Act (
1101 et seq., which set forth “a comprehensive federal statutory schem
immigration and naturalization.” De Canas v. Bica, 424 U.S. 351, 35
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deportation). The Supreme Court, referencing specific criminal provisi
written that “entering or remaining unlawfully in this country is itsel
Lopez-Mendoza, 468 U.S. 1032, 1038 (1984). The criminal provisio
Mendoza set forth with particularity what actions constitute “ente
unlawfully.” For example, entering or attempting to enter the United S
legal border crossing is a federal crime. 8 U.S.C. § 1325. A non-citizen
the United States and willfully fails to register or be fingerprinted after
knowingly files a fraudulent application, has also committed a federa
§§1302, 1306. All aliens over the age of 18, moreover, must carry their
at all times, under penalty of a criminal misdemeanor. 8 U.S.C. § 1
provision in the INA or any other federal law, however, that specificall
presence in the United States without authority to remain.2 The S
acknowledged that “[a] deportation proceeding is a purely civil action to d
to remain in this country.” Lopez-Mendoza, 468 U.S. 1032.
Being present in the country without authorization to rema
violation.” Gonzales v. City of Peoria, 722 F.2d 468, 476 (9th Cir. 1983
grounds by Hodgers-Durgin v. de la Vina, 199 F.3d 1037 (9th Cir. 1999
Mendoza alters this law. In a recent decision, the Ninth Circuit found th
not commit an “egregious violation” of the Fourth Amendment suffi
exclusionary rule in a civil proceeding because the language of Lopez-Me
“a reasonable officer could have interpreted that statement to mean
presence in this country is itself a crime.” Martinez-Medina v. Holder , 6
(9th Cir. 2010). In amending and superceding that opinion, the
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“[a]lthough a reasonable officer could have been confused by these st
Mendoza and Martinez . . . a close reading of those cases demonstrates t
suggest that an alien’s mere unauthorized presence is itself a crime.” Ma
F.3d ___, 2011 WL 855791, at *6 (9th. Cir. Mar. 11, 2011). The panel w
that “Gonzales’s observation that ‘an alien who is illegally present in th
[commits] only a civil violation,’ . . . remain[s] the law of the circu
enforcement officers.” Id . (quoting Gonzales, 722 F.2d at 476–77). An a a valid visa or otherwise remains in the country after the expiration of
by the Department of Homeland Security,” therefore, although he
deportation, has violated no criminal statute. Martinez-Medina, ___ F.3
855791, at *5 n.4.
Officers enforcing the immigration laws must comply with the F
which protects the right of the people to be free from “unreasonable sea
U.S. CONST. amend IV. Probable cause to arrest a person will flow w
circumstances within the knowledge of the arresting officers and
reasonably trustworthy information were sufficient to warrant a prudent m [the person arrested] had committed or was committing an offense.” Uni
425 F.3d 698, 704 (9th Cir. 2005). Absent probable cause, when cir
“necessarily swift action predicated upon the on-the-spot observations
beat,”officers may make brief investigatory seizures based only on reaso
“criminal activity may be afoot.” Terry v. Ohio, 392 U.S. 1, 20, 30 (196
stop is lawful if an officer “reasonably suspects that the person apprehe
or has committed a criminal offense.” Arizona v. Lemon Montrea Johnso
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immigration law, including the power to “interrogate any alien or perso
alien as to his right to be or to remain in the United States.” 8 U
Authorized officers may stop vehicles pursuant to this authority so long
of specific articulable facts, together with rational inferences from
reasonably warrant suspicion that the vehicles contain aliens who may
country.” U.S. v. Brignoni-Ponce, 422 U.S. 873, 884 (1975). Reasona
federal officer to stop a car to investigate the immigration status of the upon the “totality of the circumstances.” U.S. v. Arvizu, 534 U.S. 266,
patrol agent had reasonable suspicion to stop a minivan when (1) it ha
road frequently used by smugglers to avoid a checkpoint, (2) it had slow
saw the officer, (3) the children sitting in the back began to wave mech
children had their knees propped up, as though there was cargo beneath
In considering the totality of the circumstances, however, “an
solely on generalizations that, if accepted, would cast suspicion on lar
lawabiding population.” U.S. v. Manzo-Jurado, 457 F.3d 928, 935 (9th C
appearance, for example, is “of such little probative value that it may n a relevant factor where particularized or individualized suspicion is
Montero-Camargo, 208 F.3d 1122, 1135 (9th Cir. 2000). Moreover, w
speak English is probative of immigration status, it does not supply re
unless “other factors suggest that the individuals are present in this
Manzo-Jurado, 457 F.3d at 937. The Ninth Circuit has also held
appearance as a Hispanic work crew, inability to speak English, proximi
unsuspicious behavior,” taken together, do not provide a federal i
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3 The Supreme Court has granted a writ of certiorari to review decision. U.S. v. Arizona, 641 F.3d 339, 362 (9th Cir. 2011), cert. grante
(U.S. Dec. 12, 2011) (No. 11-182). The question presented in that cas
laws impliedly preempt four provisions of SB 1070 on their face. Id. The
not been asked to decide whether states have an inherentauthority to enfo
permitted to enforce civil violations of federal immigration law. Officer
287(g) program may make traffic stops based upon a reasonable suspic
totality of the circumstances, that people in the vehicle are not authorize
States. Brignoni-Ponce, 422 U.S. at 884.
Local law enforcement officers, however, do not have the “inh
investigate civil immigration violations, including status violations. U.S.
339, 362 (9th Cir. 2011).
3
Since the MCSO lost its 287(g) field authori 2009, the only immigration laws its officers can investigate are federal c
laws that have not been enjoined. Gonzales, 722 F.2d at 476–77.
Local law enforcement officers, even those not certified under 2
not prohibited from investigating and enforcing federal criminal law. Ke
U.S. 23, 37 (1963). The Ninth Circuit has held that local law enforcemen
may investigate and enforce “the criminal provisions of the [INA].” Go
477.4 Non-287(g) officers may detain those whom they have reasonable
have illegally crossed a border in violation of § 1325, fraudulently fi
application under § 1306, failed to carry documentation of their immig § 1304(e), or committed other criminal immigration violations.
Moreover, actual knowledge, let alone suspicion, that an alien i
not sufficient to form a reasonable belief he has violated federal crimin
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The Ninth Circuit recently affirmed that “an alien’s ‘admission of illeg
not, without more, provide probable cause of the criminal violation
precisely because the criminal sections of the INA contain additiona
crossing a border without authorization, willfully refusing to register, o
application. Martinez-Medina, ___ F.3d ___, 2011 WL 855791, at *6 (qu
F.2d at 476–77).5 MCSO officers, none of whom are now 287(g) certifie
power to detain or investigate violations such as those “regulating auth of stay, residence status, and deportation.” U.S. v. Arizona, 641 F.3d at 36
pursuant to such a violation, absent reasonable suspicion of criminal a
Fourth Amendment.
response to “rampant illegal immigration, escalating drug and human tra
serious public safety concerns,” along with a perceived failure by the fe
enforce federal immigration law, has passed a number of state laws inv
issues. U.S. v. Arizona, 703 F. Supp. 2d 980, 985 (D. Ariz. 2010). Some Senate Bill (“SB”) 1070, one of the laws in question, have been enjoined
of the law remain valid.
Portions of SB 1070 that have not been enjoined allow local law en
to turn over those who have been convicted of a state crime to fe
determine their immigration status. Ariz. Rev. Stat. (“A.R.S.”) § 11-10
v. Arizona, 703 F. Supp. 2d at 985 (D. Ariz. 2010) (upholding the provis
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6 SB 1070 also includes provisions prohibiting stopping a vehicl passengers for work at a different location if the motor vehicle blocks or
movement of traffic,” or for someone to enter a vehicle for such a purpo
blocks or impedes traffic. A.R.S. § 13-2928(A)–(B). These provisi
enjoined, but their status remains uncertain. In upholding them, the dist
“the June 9, 2010, decision of the Ninth Circuit Court of Appeals in
virtually identical local ordinance in Redondo Beach, California foreclos
v. Arizona, 703 F. Supp. 2d at 1000 (citing Comite de Jornaleros de Red of Redondo Beach, 607 F.3d 1178, 1184–93 (9th Cir. 2010)). An en b
Ninth Circuit has since overturned that panel decision and found that
ordinance, Redondo Beach Mun. Code § 3–7.1601(a), is “a facial
restriction on speech,” since soliciting work as a day laborer is protecte
a person who is “in violation of a criminal offense” commits a further off
or moves an unauthorized alien “if the person recklessly disregards” tha
status. A.R.S. § 13-2929(A)(1) (2010). However, no one may determ
alien’s status except for a federal officer or a “law enforcement officer w
the federal government to verify or ascertain an alien’s immigration s
2929(D)(1)–(2). Officers without such authorization cannot therefore
satisfy a key element of the crime.
6
In addition, some Arizona state immigration laws predate SB
Arizona Workers Act of 2007 allows state courts to suspend or revok
business of any employer who knowingly or intentionally employs a
authorized to work. A.R.S. §§ 23-211, 212, 212.01 (2007). It ha
constitutional by the Supreme Court. See Chamber of Commerce of U
S.Ct. 1968, 1977 (2011) (upholding the measure). However, the law ex
enforcement process by which individuals file written complaints to th
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23 7 A current lawsuit in the District Court of Arizona challenges a po
who in turn conducts an investigation before a license is revoked. A.R.S
provisions through which enforcement actions can be taken again
specifically exempts independent contractors from its definition of “em
that it cannot be enforced against those who hire day laborers as indep
A.R.S. § 23-211(3)(b).
Since 2005, human smuggling has been an Arizona state crime
(2010). The human smuggling statute reads: “It is unlawful for a per engage in the smuggling of human beings for profit or commercial pur
2319(A). The statute defines “smuggling of human beings” as “
procurement of transportation or use of property or real property by a per
knows or has reason to know that the person or persons transported or t
not United States citizens, permanent resident aliens or persons otherw
state or have attempted to enter, entered or remained in the United States
A.R.S. § 13-2319(F)(3). In order for the elements of the crime to be sa
person must 1) transport, procure transportation for, or harbor a perso
reason to know that the person is not legally in the country, and 3) commercial purpose.7 If a driver does not know or have reason to know
are not legally in the country, no one has violated the statute. If the transp
conducted for profit or a commercial purpose, no one has violated the
cross the international border at an unauthorized location have violated
have not violated or conspired to violate the human smuggling statu
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A law enforcement officer must have a reasonable suspicion th
“afoot” to conduct a brief investigatory stop to enforce the human smugg
U.S. at 20. Therefore, an officer must have reasonable suspicion that
transported or harbored, 2) by a person who knows or has reason to kn
being transported or harbored is not legally present in Arizona or the U
that the person is currently being transported or harbored “for profit or co A.R.S. § 13-2319(A)–(F). The fact that a law enforcement officer suspe
that a vehicle passenger is not legally present in the country does not in
reasonable suspicion that the passenger was or is being “smuggled.” Mor
lack of legal status, standing alone, is in no way probative as to wh
transporting the passenger for profit or commercial purpose. Since “an a
illegal presence . . . does not, without more, provide probable cause of th
of illegal entry,’” knowledge of illegal presence, standing alone, can l
reasonable suspicion or probable cause that the human smuggling statu
sufficient to justify a Terry stop. Martinez-Medina, 2011 WL 855791, A minor traffic infraction provides officers sufficient probable c
vehicle. Whren v. U.S., 517 U.S. 806, 810 (1996). When officers stop
cause, the fact that they actually intend to investigate another crime f
probable cause is irrelevant—the “ulterior motive” does not “serve to str
legal justification” to conduct the initial stop. Id. at 813. While an ulter
remove objective probable cause for a car stop, neither it nor the in
provides limitless authority to detain passengers for unrelated crimes or c
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8 Defendants’ reliance on Muehler v. Mena, 544 U.S. 93 (2005)
that “[a] traffic violation provides probable cause to stop the vehicle and
a driver and other occupants of the vehicle,” is unavailing. (Doc. 413 at 5
was no traffic stop; rather, Mena was handcuffed and asked about her while her house was searched for weapons pursuant to a valid warrant.
96. The Supreme Court held that the detention was reasonable in light
search, and that an interrogation that did not prolong the search di
independent Fourth Amendment seizure The officers who asked about M
detention must be carefully tailored to its underlying justification.” Fl
U.S. 491, 500 (1983). Applied to the car stop context, this principle mea
question a driver who has been lawfully stopped if the questioning doe
prolong the duration of the stop.” U.S. v. Turvin, 517 F.3d 1097, 1099, 1
(when officer recognized driver as previously arrested drug dealer,
consent to search a box in the vehicle that “look[ed] very odd” did no
During this questioning, however, “unless the detainee’s answers prov probable cause to arrest him, he must then be released.” Berkemer , 468
Vehicle passengers are legally “seized” based on the reason
provided justification for the stop—an officer “need not have, in additi
any occupant of the vehicle is involved in criminal activity.” Lemon Mo
U.S. at 327. To question or search a passenger beyond the scope of inv
for the original stop, however, an officer needs suspicion particular to
example, in order to frisk a passenger, an officer needs reasonable suspi
the reason for the stop that “the person subjected to the frisk is armed a
Local law enforcement officers may therefore not detain vehic upon probable cause, or even actual knowledge, without more, that thos
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lawfully in the United States, since such knowledge does not provide offi
suspicion that the passengers are violating any law that local law enfor
enforce. Martinez-Medina, 2011 WL 855791, at *6. This prohibition h
the car has been reasonably stopped for other cause, such as a traffic vio
cause provides “no such reason to stop or detain the passengers.” Wilso
Defendants, citing Terry and its progeny, claim that if an off
suspicion that a person has satisfied one significant element of a crimina may stop that person to develop reasonable suspicion that the person ha
elements. A line of Ninth Circuit cases has emphasized that since p
objective standard relying upon the totality of the circumstances, an
probable cause to arrest or search when he does not have “probable cau
of the offense.” U.S. v. McCarty, 648 F.3d 820, 839 (9th Cir. 2011) (W
opened his bag and photographs of nude children fell out, TSA did not n
that the photographs met the precise definition of child pornograph
probable cause to search bags further). Nevertheless, officers still n
reasonable belief that [a person] has committed a crime” before they hav proceed further. Id. Although “[p]robable cause does not require the sa
evidence of each element of the offense as would be needed to support a
v. Williams, 407 U.S. 143, 149 (1972), officers must have some reliabl
person has committed a crime, usually including violating its key eleme
v. United States, 39 F.3d 1420, 1428 (9th Cir. 1994) (finding that while
have probable cause for every element of the offense . . . when specific
element, the arresting officer must have probable cause for that e
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violation of illegal entry.’” Martinez-Medina, 2011 WL 855791, at *6.
To justify a Terry stop, an officer must have reasonable suspi
about to be committed, and a person has not committed a crime if the
have not been satisfied. Cf. In re Winship, 397 U.S. 358, 361 (1970) (To
a crime, a prosecutor must “convince the trier of all the essential element
quotation omitted). If the totality of the circumstances do not provide r
that a person is about to commit or is committing a crime, then the off person. Moreover, an officer cannot conduct a Terry stop in order to acq
suspicion necessary to justify the stop itself; the “demand for specificit
upon which police action is predicated is the central teaching of [the
Fourth Amendment jurisprudence.” Terry, 392 U.S. at 22 n.18 (collect
Defendants also cite U.S. v. Cortez, 449 U.S. 411 (1981), Scarb
F.3d 1299 (11th Cir. 2001), and a number of cases in which officers fri
weapons during a legally justified stop, including U.S. v. Orman, 486
2007), Lemon Monrea Johnson, and Terry itself. Cortez involved f
officers stopping a vehicle after an extended field investigation and ove
since federal immigration officers may stop vehicles based on reason
passengers have violated federal civil immigration law, there were no cr
needed to be satisfied. U.S. v. Cortez, 449 U.S. at 421–22. Scarbrou
immunity case. In that case, the court held that Officer Myles had “argua
that defendants had committed of a crime, and therefore met the lower
to be afforded qualified immunity. Scarbrough, 245 F.3d at 1303. It in n
a Terry stop is justified without reasonable suspicion that a crime has bee
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As a matter of law, belief without more that a person is not lega
in the country cannot constitute reasonable suspicion to believe that he
the state human smuggling law. The Ninth Circuit has held that actua
person is not lawfully in the country does not provide probable cause
additionally, crossed the border at an unauthorized place. Martinez
855791, at *6. If an officer does not have reasonable suspicion that crimi
he does not have reason to detain someone under Terry.
DISCUSSION
Summary judgment is appropriate if the pleadings and supporting
in the light most favorable to the non-moving party, “show that there is
to any material fact and that the moving party is entitled to judgment
FED. R. CIV. P. 56(c). A dispute is genuine “if the evidence is such th
could return a verdict for the nonmoving party.” Anderson v. Liberty L
242, 248 (9th Cir. 1986). In considering such evidence, “at the summary
judge’s function is not himself to weigh the evidence and determine th
but to determine whether there is a genuine issue for trial.” Id. at 249.
The party moving for summary judgment bears the initial bur
portions of the record “it believes demonstrate the absence of a genui
fact.” F.T.C. v. Stefanchick , 559 F.3d 924, 927 (9th Cir. 2009) (quotin
Cartrett , 477 U.S. 317, 323 (1986)). Should the moving party meet th
moving party then must “set forth, by affidavit or as otherwise provided
facts showing that there is a genuine issue for trial.” Horphang Research
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to be considered at summary judgment. Taylor v. List , 880 F.2d 1040
1989). Expert testimony may be considered unless it consists of a “leg
v. Scholl, 166 F.3d 964, 973 (9th Cir. 1999). The Ninth Circuit “has refus
issue where the only evidence presented is uncorroborated and self-
Villiarimo v. Aloha Island Air, Inc., 281 F.3d 1054, 1061 (9th Cir. 2002)
omitted).
A. Search and Seizure Claims
A plaintiff does not have standing to seek injunctive relief, eve
harm, unless that harm is accompanied by “continuing, present adverse
Littleton, 414 U.S 488, 496 (1974). Continuing, present adverse effects
a plaintiff demonstrates that there is “a sufficient likelihood that he wi
in a similar way.” Lyons, 461 U.S. at 111. Standing for injunctive r
however, if an injury is “contingent upon [plaintiffs’] violating the law.”
523 U.S. 1, 15 (1998). Plaintiffs have no standing to enjoin police cond
“conduct[ing] their activities within the law” they will avoid “exposur
course of conduct.” Lyons, 461 U.S. at 103 (quoting O’Shea, 414 U.
standing to seek an injunction on their Fourth Amendment claims, Plain
genuine question as to whether they are likely to be seized again in vio
Amendment, not merely that the traffic stops are conducted in a discrimin
pretextual efforts to enforce other law. See Whren v. U.S., 517 U.S. at
In the unique circumstances of this case, Defendants’ assertions
their authority to stop persons to investigate potential violations of the sta
1 b d i bili f A i ’ h li
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based on its ability to enforce Arizona’s human smuggling statute.
Defendants claim, therefore, that their authority to stop people to investig
state human smuggling statute is the same as a federal immigration o
enforce federal civil immigration law. In supplemental briefing and
Defendants asserted that MCSO officers could briefly detain people
reasonable suspicion, without more, that the person is not legally presen
States.” (Doc. 488 at 17).
The fact that a person is unlawfully present, without more, does
with reasonable suspicion that the person is currently being smuggled f
provide probable cause that the person was at some point in the past smu
Martinez-Medina, 2011 WL 855791, at *6. To the extent that Defend
human smuggling statute, or any Arizona or federal criminal law, autho
people based solely on the knowledge, let alone the reasonable suspicio
are not authorized to be in the country, they are incorrect as a matter of
The likelihood that any particular named Plaintiff will again be
way may not be high. However, if MCSO detains people, as they claim a
reasonable suspicion that they have violated essential elements of a c
state or federal—exposure to that policy is both itself an ongoing harm
there is “sufficient likelihood” that Plaintiffs’ rights will be violated aga
at 111. Although some MCSO officers were certified under 287(g) to enf
of the federal immigration law during the incidents that gave rise to the c
authority has been revoked they may no longer do so. In Lyons itself, th
victim of police misconduct could seek an injunction if he could sho
1 i j ti li f F th b thi ti i tt f l
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injunctive relief. Further, because this assertion is wrong as a matter of la
(and all members of the putative class) are entitled to partial summary
Fourth Amendment claims, to the extent that Defendants are detaini
reasonable suspicion that the state human smuggling statute has been v
need not be enjoined from enforcing federal civil immigration law becau
they have no authority to enforce such law.
To be granted injunctive relief, a plaintiff must establish four e
must establish “that he is likely to succeed on the merits, that he is likely
harm in the absence of preliminary relief, that the balance of equities t
that an injunction is in the public interest.” Winter v. Nat’t Res. Def. Cou
(2008); see FED. R. CIV. P. 65. The loss of constitutional rights “unques
irreparable injury.” Elrod v. Burns, 427 U.S. 347, 373 (1976). The bala
public interest both favor enforcing class members’ Fourth Amendme
relief is appropriate.
To the extent that named Plaintiffs claim a right to additional
summary judgment based on the facts of their individual detentions, t
discussed below.
1. Ortega-Melendres
On September 19, and September 22, 2007, undercover MCSO
church in Cave Creek posing as day laborers. (Doc. 433, Ex. 139). The
that the church maintained a sign-in sheet for those looking for work
distribute the jobs among the day laborers.” ( Id.). An email to Lieuten
MCSO’s Human Smuggling Unit (“HSU”) detailing the officers’ un
1 the church property and that had left the property ” (Doc 453 ¶ 172)
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the church property and that had left the property. (Doc. 453 ¶ 172).
Plaintiff Manuel de Jesus Ortega-Melendres, a Mexican nationa
the United States at the time, along with two other men, entered a vehic
lot. (Doc. 413, Ex. 1 ¶ 14). Deputy DiPietro was participating in the o
understood to be focused on “a church parking lot that had day laborer
being picked up by people.” (Doc. 413, Ex. 4 at 46, ln 22–25). Officers o
monitoring the church contacted Deputy DiPietro and told him to follow
Melendres had entered and attempt to develop probable cause to stop it
15). DiPietro followed the truck for a mile and a half, and then pulled
above the speed limit. (Doc. 422 ¶ 177). DiPietro spoke to the driver of th
passengers, and formed, in his own words, “reasonable suspicion from
laborers and here illegally.” (Doc. 413, Ex. 4 at 49, ln 18–20). When
believed that the passengers had committed any state crime, he stated, “I
employer sanction laws and when they came into effect or not. But I ha
that they were here illegally.” (Doc. 413, Ex. 4 at 49–50).11 When asked s
concerned about human smuggling, he stated, “There was a concern of
that this church was doing this, you know, allowing day laborers to be
a possibility that it could have been some type of human smuggling typ
criminal activity could have been going on out of that parking lot.” (Do
ln 6–11) (emphasis added). DiPietro decided not to give the driver of
ticket, and summoned Deputy Rangel, who was 287(g) certified and
investigate the immigration status of the passengers of the truck,
Melendres. (Doc. 413, Ex. 1 ¶¶ 20–22). Defendants and Plaintiffs ag
1 provided Rangel with his tourist visa but disagree as to whether he als
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provided Rangel with his tourist visa, but disagree as to whether he als
form. (Doc. 456 ¶ 26). The driver was allowed to leave with a warning.
After between fifteen and twenty-one minutes of questioning, Ortega
other passengers were taken to an MCSO substation, where they were d
two hours, and then transported to an ICE Detention and Removal Of
Melendres was held for six more hours. (Doc. 453 ¶ 185). After he was se
Ortega-Melendres was released. (Doc. 453 ¶ 184).
It is not clear from the record that the HSU officers who first radio
were themselves certified under the 287(g) program to enforce federa
Assuming that they were, they would only have had reasonable suspicio
if the facts and reasonable inferences drawn from those facts could “
suspicion that the vehicles contain[ed] aliens who may be illegally in the
Ponce, 422 U.S. at 884. They did not stop the vehicle themselves, and in
Deputy DiPietro do so.
Defendants assert that in training 287(g) officers, ICE inform
apparent ancestry may be used as one factor in evaluating whether offic
suspicion to stop an individual, although it cannot be considered the so
at 15; Doc. 453, Ex. 9 at 19, ln 10–21). Whether or not such information
to local law enforcement officers during their 287(g) training, the law
is clear: “Hispanic appearance is of little or no use in determinin
individuals among the vast Hispanic populace should be stopped b
officials on the lookout for illegal aliens.” Montero-Camargo, 208 F.3d
cite Montero-Camargo for the proposition that the courts do not “preclu
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fail to quote the sentence in its entirety, which limits this use to when
has been identified as having a specific racial or ethnic appearance
(emphasis added). Defendants at no time claim that Ortega-Melendres m
description of a suspect of any specific crime before his vehicle was stop
Ortega-Melendres was dressed as a member of a work crew, his ap
inadequate to justify a stop. Manzo-Jurado, 457 F.3d at 932.
In addition to his dress and his appearance, Ortega-Melendres
where day laborers were known to congregate and entered a vehicle w
same location. The Ninth Circuit has yet to consider whether this type o
officers with reasonable suspicion to investigate immigration status, an
to consider that question in this Order. The HSU officers who observed
enter the vehicle did not stop the vehicle themselves to determine his
rather they requested that Deputy DiPietro follow the vehicle and develo
stop it.
Deputy DiPietro stopped the vehicle for traveling 34 miles per h
hour zone, but Plaintiffs’ claim does not rest on whether he had probabl
initial traffic stop. DiPietro himself acknowledges that he dismissed th
Deputy Rangel to investigate the immigration status of the vehicle’s pa
had reasonable suspicion . . . that they were day laborers and here illega
13 at 49, ln 18–21). In their original briefing on the pending motion, D
that “Deputy DiPietro had no reason to believe that any passenger
committed any violation of criminal law.” (Doc. 453 ¶ 176). In their sup
however, in which the Court asked them to respond to specific qu
1 conspiring to smuggle himself.13 Even assuming that Ortega-Melen
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conspiring to smuggle himself. Even assuming that Ortega Melen
DiPietro’s conversation with the driver provided reasonable suspicion tha
was in the United States without authorization, no evidence has been off
DiPietro had reasonable suspicion that any other elements of a federal or
satisfied. See Martinez-Medina, ___ F.3d ___, 2011 WL 855791, at *
undercover work by MCSO had revealed no evidence of human smugg
and there is no evidence to suggest probable cause that Ortega-Melen
been transported for profit or commercial purpose. (Doc. 433, Ex. 139). D
based on no evidence in the record, that the church might possibly ha
human smuggling or other undefined criminal activity, constitutes mer
unparticularized suspicion or ‘hunch’” and did not objectively prov
suspicion that Ortega-Melendres in particular was committing, or consp
crime. U.S. v. Sokolow, 490 U.S. 1, 7 (1989) (quoting Terry, 392 U.S.
Further, that the stop itself may have been justified did not
suspicion to detain Ortega-Melendres. Officer DiPietro was justifie
stopping the car, and was permitted to question the driver without reas
long as he did “not unreasonably prolong the duration of the stop.” Turvi
During that questioning, however, “unless the detainee’s answers prov
probable cause to arrest him, he must then be released.” Berkemer , 468
Defendants argue that “it was completely proper for MCSO depu
stops of motorists under Arizona law and then call for a 287(g) certified
1 if someone in the stopped vehicle might be