Illinois Migrant Council v. Pilliod

• Citation: 398 F. Supp. 882
• Decision Date: 29 July 1975
• Docket Number: No. 74 C 3111.,74 C 3111.
• Parties: ILLINOIS MIGRANT COUNCIL, a notfor-profit corporation, Individually, et al., Plaintiffs, v. Alva L. PILLIOD, Individually and in his official capacity, et al., Defendants.
• Court: U.S. District Court — Northern District of Illinois

398 F. Supp. 882

ILLINOIS MIGRANT COUNCIL, a notfor-profit corporation, Individually, et al., Plaintiffs, v. Alva L. PILLIOD, Individually and in his official capacity, et al., Defendants.

No. 74 C 3111.

United States District Court, N. D. Illinois, E. D.

July 29, 1975.

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Bruce L. Goldsmith, Ill. Migrant Legal Assistance Project, David A. Goldberger, Roger Baldwin Foundation, Barbara P. O'Toole, Kenneth Montgomery, American Civil Liberties Union, Chicago, Ill., Robert S. Catz, Migrant Legal Action Program, Inc., Washington, D.C., for plaintiffs.

Arnold Kanter, Asst. U. S. Atty., Chicago, Ill., for defendants.

MEMORANDUM OPINION

MARSHALL, District Judge.

The Illinois Migrant Council (hereinafter IMC), a not-for-profit corporation, and Arturo Lopez, Larry Sandoval, Elias Montanez, Tessie Alvarado, Isabel Carillo, Fidencio Salinas, Rutilio Arteaga and Ninfa Arteaga,¹ individually, and on behalf of all others similarly situated, bring this action for declaratory and injunctive relief against 9 named and 35 unknown officials of the Immigration and Naturalization Service (hereinafter INS).² In substance, the complaint alleges that the INS has conducted and will continue to conduct in the future a pattern and practice of harassment, including illegal searches, seizures, arrests, interrogations, detentions, and mass raids, against the individual plaintiffs and the class, in violation of the plaintiffs' rights under the First, Fourth and Fifth Amendments to the Constitution of the United States.

Jurisdiction is founded on 28 U.S.C. §§ 1331, 2201 and 2202. The plaintiffs' cause of action arises under the First, Fourth, and Fifth Amendments to the Constitution, and 8 U.S.C. § 1357, which delineates certain powers of the INS, and it involves in excess of $10,000 per individual plaintiff exclusive of interest and costs.

The plaintiffs seek a preliminary injunction pursuant to FedR.Civ.P. 65. Testimony has been heard and the motion is ready for decision. During the preliminary injunction hearings, the defendants filed a motion to dismiss under Fed.R.Civ.P. 12(b), which was denied after argument. The issue is whether defendants should be enjoined pendente lite from entering buildings, dormitories, and/or dwellings where plaintiffs and the members of their class reside without search warrants or probable cause unless they have received consent to enter from the occupants, and to cease arresting, detaining, stopping and otherwise interfering with the travel of citizens and resident aliens of Mexican descent unless the defendants are acting upon probable cause or "articulable facts showing that there is substantial reason to believe such persons have entered the United States illegally."³

Before analysing the difficult and sensitive issues raised by the plaintiffs' motion, a detailed statement of the facts adduced at the hearings and an analysis of certain exhibits is necessary.⁴ Fed.R.Civ.P. 52(a); 65(d). The plaintiffs' evidence falls into four broad and sometimes overlapping categories: street encounters, entries into dwellings, raids on employment centers, and documentary evidence consisting of operations manuals for INS agents. The plaintiffs contend that the evidence demonstrates a continuing pattern and practice of illegal conduct by the INS that requires the issuance of a preliminary injunction. The defendants, on the other hand, assert that all operations of the INS were and will continue to be conducted in conformance with the Fourth Amendment and 8 U.S.C. § 1357(a)(1) (1970), and to the extent that excesses may have occurred, the incidents were isolated and do not establish a pattern or practice of illegal conduct. Alternatively, the defendants contend that the plaintiffs are not entitled to injunctive relief because they have an adequate remedy at law under the Federal Tort Claims Act, 28 U.S.C. § 2680(h) (1974), and Bivens v. Six Unknown Agents, 403 U.S. 388, 91 S.Ct. 1999, 29 L.Ed.2d 619 (1971); Tritsis v. Backer, 501 F.2d 1021 (7th Cir. 1974). Finally, defendants urge that the court lacks jurisdiction to grant plaintiffs any relief because their success is dependent upon a successful challenge to the constitutional validity of 8 U.S.C. § 1357 (1970), which requires the convening of a three-judge court. 28 U.S.C. § 2282 (1970). Since the jurisdictional question can best be understood after a statement of the facts, it will be discussed after the evidence has been summarized.

I. The Facts

IMC is a federally funded not-for-profit Illinois corporation with nine regional offices in the state. It provides supportive services and acts as an advocate for migrant agricultural workers who are predominantly of Mexican heritage and illiterate in both English and Spanish. Its major goal is to "encourage migrants to leave the migrant stream and to settle as permanent residents in Illinois."⁵ The individual plaintiffs are American citizens or permanent resident aliens of Mexican descent. A number of them have permanent residences in Illinois while others are migrant farm workers whose legal residences are in Texas.

The individual defendants are supervisory and field personnel of the INS. With the exception of Pilliod, who was District Director of INS at the time of the commencement of this action, the defendants are all assigned to the Chicago District of the INS. The plaintiffs allege that the defendants are responsible for and participate in the complained of interrogations, investigations, dwelling entries, surveillance and raids upon individual and groups of individuals of Mexican descent or Spanish surnames. The plaintiffs further allege that these activities are all conducted pursuant to the Unites States immigration laws, regulations and policies.

A. Street Encounters

The plaintiffs presented two instances, apart from incidents during INS area control operations in Mendota and Rochelle, where individuals were allegedly stopped by INS agents and interrogated about their citizenship and their right to remain in the United States. The first incident occurred on September 18, 1974, in Rochelle, Illinois. Larry Sandoval, an American citizen of Mexican descent residing in Rochelle, Illinois, is the Director of the IMC office in Rochelle. Elias Montanez works for the IMC and is a permanent resident alien residing in Rochelle. On the morning of September 18, the two men were driving in Sandoval's car to the IMC office in Rochelle when they passed an INS car heading in the opposite direction. Sandoval proceeded to the IMC office and parked his car on the front lawn of the office. The INS car U-turned and pulled up alongside of Sandoval's car. Three INS agents got out of the car. One asked Montanez where he was born. Montanez responded, "Mexico." The agent then asked for identification which Montanez produced, after the officer threatened to take him to Chicago and put him in jail if he refused to produce it.⁶ The agent looked at card and finding it satisfactory, returned it.

After the exchange with Montanez, the agent requested identification from Sandoval. When he refused to produce any, the agents told him they would have to take him to Chicago. Sandoval replied that the agents could take him to Chicago because he was not going to give them any identification. The agent then grabbed Sandoval's arm and placed him in the back seat of the agents' car. Once inside the car, the agent again asked for some identification and Sandoval refused stating that he did not think it was right for anybody to interfere with a citizen's rights. Upon Sandoval's implied assertion that he was a citizen, the agents ordered him out of the car and they left.

The second incident involved Arturo Lopez, the Deputy Director of IMC. In the first week of October, 1974, Lopez was walking to his office at 19 West Jackson in Chicago when he was approached by two "Anglos" who asked him if he lived in the area. Thinking they were lost and wanted directions, he responded, "no, but I work around here." The following colloquy then took place (Tr. 171):

Q. And then what happened?

A. And then the person asked me where I was born.

Q. And what did you say?

A. It upset me, and I felt they were kind of—and I said, "Well, why? Where were you born?"

Q. And then what happened?

A. He said, "Well, I am from the Immigration Department." And then he pulled out a little wallet and just flashed it open and put it back in his pocket.

Q. And then what happened?

A. And then I said, "Well, I was born in New Mexico." I said "Where were you born?"

And the guy said, "Chicago." And then they said, "Have a nice day." And they left.

Q. Could you tell me how you were dressed?

A. I had the clothes on that I have got on now.

Q. Were you doing anything unusual at the time?

A. Just walking down the street.

Mr. Lopez is an American citizen of Mexican descent. At the time of this encounter, he was walking down the street, attired in boots made in New Mexico, levis, a shirt purchased in Illinois, and a jacket purchased in Mexico.^6a

B. Area Control Operations

The focal point of the plaintiffs' case and the most egregious conduct of the defendants occurred during the raids or "area control operations" conducted by the INS in Rochelle and Mendota, Illinois. No search or arrest warrants were issued for either of these operations.

The preparation for the two raids began on September 12, 1974 when the Chicago District received a communication from the Washington Office that illegal aliens were being employed in the Del Monte Food Company and Maclean Company plants in Rochelle, Illinois. Thereafter on September 16, 1974, defendant Georgetti travelled to Rochelle to make inquiries and select targets for a possible area control operation. Some of the targets were selected on the basis of information provided by an informer. This information consisted of locations where "conceivably there were illegal aliens residing," including...