540 F.2d 1062 (7th Cir. 1976), 75-2019, Illinois Migrant Council v. Pilliod

Docket Nº:75-2019.
Citation:540 F.2d 1062
Party Name:ILLINOIS MIGRANT COUNCIL, etc., et al., Plaintiffs-Appellees, v. Alva L. PILLIOD, etc., et al., Defendants-Appellants.
Case Date:August 17, 1976
Court:United States Courts of Appeals, Court of Appeals for the Seventh Circuit

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540 F.2d 1062 (7th Cir. 1976)

ILLINOIS MIGRANT COUNCIL, etc., et al., Plaintiffs-Appellees,


Alva L. PILLIOD, etc., et al., Defendants-Appellants.

No. 75-2019.

United States Court of Appeals, Seventh Circuit

August 17, 1976

Heard April 29, 1976.

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[Copyrighted Material Omitted]

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Samuel K. Skinner, U. S. Atty., John W. Cooley, Asst. U. S. Atty., Chicago, Ill., for defendants-appellants.

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Frank Munger, Washington, D. C., for amicus curiae.

David A. Goldberger, Bruce L. Goldsmith, Chicago, Ill., Robert S. Catz, Washington, D. C., for plaintiffs-appellees.

Before FAIRCHILD, Chief Judge, and CUMMINGS and TONE, Circuit Judges.

CUMMINGS, Circuit Judge.

Six individuals 1 and the Illinois Migrant Council (IMC), a not-for-profit corporation, brought this class action for declaratory and injunctive relief against nine named (including John Doe and Richard Roe) and 35 unknown officials of the Immigration and Naturalization Service (INS). IMC provides supportive services and acts as an advocate for illiterate migrant agricultural workers of Mexican heritage, and the individual plaintiffs are American citizens or permanent residents of Mexican descent. The complaint describes the class as consisting of "all persons of Mexican descent and all Spanish surnamed persons in Illinois." The 35 unnamed defendants are described as INS agents subordinate to the district director for the Chicago district of INS. 2 With the exception of Pilliod, who is a supervisory official of the INS stationed in Washington, D.C., 3 the defendants are assigned to the Chicago district thereof and all are allegedly responsible for the actions complained of.

The complaint alleged that the INS has conducted and will conduct a pattern and practice of harassment (including illegal searches, seizures, arrests, interrogations, detentions and mass raids) against the individual plaintiffs and their class in violation of the First, Fourth and Fifth Amendments. Pursuant to plaintiffs' motion for a preliminary injunction, the district court held four days of hearings, after which defendants filed a motion to dismiss, which was denied on December 3, 1974. Thereafter plaintiffs filed a motion for certification of the above-described class.

On July 29, 1975, the district court entered an extensive memorandum opinion, concluding that plaintiffs were entitled to a preliminary injunction and certifying their class as "all persons of Mexican ancestry or of Spanish surname * * * lawfully present in the Judicial District of Northern Illinois." Illinois Migrant Council v. Pilliod, 398 F.Supp. 882, 892, 905 (N.D.Ill.1975). We affirm. The opinion contains findings of fact detailing the defendants' challenged conduct and summarized herein.

The plaintiffs disclosed three street encounters between defendants and four individuals. On September 18, 1974, plaintiffs Sandoval and Montanez were driving in Sandoval's car to the IMC office in Rochelle, Illinois. As they parked outside the office and were leaving the car, an INS car pulled alongside and the agents got out of their car. When Montanez was asked where he was born, he replied, "Mexico." He was asked for his identification and produced a satisfactory permanent resident alien card after being threatened otherwise with jail in Chicago. When Sandoval, an American citizen of Mexican descent, was asked to produce identification and refused to do so, the agents said they would have to take him to Chicago and forced him into the back seat of their car. He again refused to produce identification but was ordered out of the car when he implied that he was a U.S. citizen.

During the first week of October 1974, plaintiff Lopez was walking to his office at 19 West Jackson Boulevard in Chicago when he was asked by two strangers if he lived in the area. He responded "No" but that he worked around there. Then he was

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asked where he was born. When he inquired why he was being interrogated, the agent said he was from the INS and flashed his identification. Lopez then said that he was born in New Mexico. He is an American-born citizen of Mexican descent. At the time, he was attired in boots made in New Mexico, levis, an Illinois shirt, and a Mexican jacket.

Jose Ortiz, a member of the plaintiff class, stated that when he was walking with a friend on September 18, 1974, in Rochelle, Illinois, two INS agents stopped them and asked for Ortiz' papers. He was allowed to leave upon complying.

The district judge also made findings of fact with respect to "area control operations" conducted by the INS in Rochelle and Mendota, Illinois, without search or arrest warrants.

At 4:30 a. m. on September 18, 1974, defendant Theodore Giorgetti, an INS employee, and 32 armed INS agents began simultaneous operations on pre-selected targets in Rochelle. First, they knocked on the unlocked doors and entered two La Hacienda buildings where 55 female employees of the Del Monte Food Company were sleeping. The agents proceeded from bedroom to bedroom, demanding that the women occupants produce their papers. Afterwards they left the buildings without making any arrests.

The agents also searched the Del Monte cottages where male immigrant employees resided. The INS agents used essentially the same method of operation in those cottages. When one of the residents, the above-mentioned Jose Ortiz, was unable to produce his green card evidencing legal residency, he was forced to accompany the INS agents on their search and only released when another Del Monte employee assured them that Ortiz's papers were in order.

At the same time, an INS agent repeatedly kicked on the door of a small farmhouse near Rochelle occupied by Alonzo Solis, an American citizen migrant worker. The agent tried to force his way into the house but desisted only when the Solis' child cried and Solis ordered him out. Solis dressed and showed the agent his "certificate" outside the house, whereupon the agent left.

At 5:00 a. m., INS agents also conducted similar operations at Del Monte plants 109 and 110. They questioned everyone who appeared to be of Latin heritage. Two Del Monte supervisors offered no resistance because they believed they had to allow the agents to search the plants.

In Mendota, Illinois, at 8:00 a. m. on September 26, 1974, defendant Giorgetti and 30 agents first went to the Motor Wheel plant. Nineteen employees were interviewed by Giorgetti, ten were arrested and five of the ten were subsequently permitted to return to work. The agents then proceeded to several other industrial targets in Mendota and to hotels, boardinghouses and private dwellings, resulting in the apprehension of 108 illegal aliens, 104 of whom were still in detention at the time of the hearing below.

Based on the foregoing findings, the district court concluded that 8 U.S.C. § 1357(a)(1) does not permit searches of this kind. The statute provides:

"Any officer or employee of the Service authorized under regulations prescribed by the Attorney General shall have power without warrant

"(1) to interrogate any alien or person believed to be an alien as to his right to be or to remain in the United States; * * *."

The court ruled that this statute should be construed in a manner consistent with the Fourth Amendment. Relying particularly on United States v. Brignoni-Ponce, 422 U.S. 873, 95 S.Ct. 2574, 45 L.Ed.2d 607, the court held that "a person should not be stopped (by an INS agent) unless the agent reasonably suspects that he or she is an alien illegally in the country." 398 F.Supp. at 898. Concluding that the plaintiffs had satisfied the usual requirements for the issuance of a preliminary injunction, the court preliminarily enjoined seven named defendants in their official capacities and

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all persons acting in concert with them from:

"(a) entering houses, dormitories, cottages or other dwellings situated in the Northern District of Illinois which are occupied by plaintiffs or any person of Mexican ancestry or of a Spanish surname who is, will be or has been lawfully present in the Northern District of Illinois, unless they possess a valid warrant to search or arrest, have probable cause to enter without such warrant, or have received permission voluntarily given by one lawfully entitled to give permission to enter;

"(b) arresting, detaining, stopping, and interrogating or otherwise interfering with plaintiffs or any person of Mexican ancestry or of a Spanish surname who is, will be or has been lawfully present in the Northern District of Illinois, unless they possess a valid warrant to search or arrest such person, have probable cause to search or arrest such person without such a warrant, or have reasonable suspicion based on specific articulable facts that such person is an alien unlawfully in the United States."

This appeal followed.


Defendants first assert that the district court lacked jurisdiction under 28 U.S.C. § 1331 because the controversy is non-justiciable. 4 Questions of justiciability are resolved with reference to the Article III command that courts hear only "cases or controversies" and policy considerations seeking to avoid embroiling the federal courts in disputes outside their role in our system of government. Flast v. Cohen, 392 U.S. 83, 97, 88 S.Ct. 1942, 20 L.Ed.2d 947; Poe v. Ullman, 367 U.S. 497, 503-504, 81 S.Ct. 1752, 6 L.Ed.2d 989. The case or controversy requirement demands that the proper parties, in an adversary relationship with one another, place before a court a dispute which is not only capable of decision by reference to judicially ascertainable standards, but also whose resolution is not committed by the text of the Constitution to another branch of the government. Gilligan v. Morgan, 413 U.S. 1, 8-9, 93 S.Ct. 2440, 37 L.Ed.2d 407; Baker v. Carr,369 U.S. 186, 217, 82 S.Ct. 691, 7 L.Ed.2d 663. Related to these constitutional...

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