International Molders' and Allied Workers' Local Union No. 164 v. Nelson

• Decision Date: 01 December 1986
• Docket Number: No. 85-2745,85-2745
• Citation: 799 F.2d 547
• Parties: INTERNATIONAL MOLDERS' AND ALLIED WORKERS' LOCAL UNION NO. 164, et al., Plaintiffs-Appellees, v. Alan NELSON, The Immigration and Naturalization Service, et al., Defendants- Appellants.
• Court: U.S. Court of Appeals — Ninth Circuit

Page 547

799 F.2d 547

6 Fed.R.Serv.3d 717

INTERNATIONAL MOLDERS' AND ALLIED WORKERS' LOCAL UNION NO 164, et al., Plaintiffs-Appellees, v. Alan NELSON, The Immigration and Naturalization Service, et al., Defendants- Appellants.

No. 85-2745.

United States Court of Appeals Ninth Circuit.

Argued and Submitted Aug. 13, 1986.

Decided Sept. 11, 1986.

As Amended on Rehearing Dec. 1, 1986.

Suggestion for En Banc Review Denied Dec. 1, 1986.

Alan L. Schlosser, ACLU, Morris J. Baller, Marron, Reid & Sheehy, Susan E. Brown, San Francisco, Cal., Charlotte Fishman, Berkeley, Cal., for plaintiffs-appellees.

Mark B. Stern, Dept. of Justice, Washington, D.C., for defendants-appellants.

Appeal from the United States District Court for the Northern District of California.

Before WRIGHT and FARRIS, Circuit Judges, and RHOADES, ^* District Judge.

EUGENE A. WRIGHT, Circuit Judge.

This action was instituted in April of 1982. Plaintiffs-appellees are a labor union, five employers and nine employees of Hispanic ancestry. They complain of the manner in which the Immigration and Naturalization Service (INS) conducted searches and made arrests in factories and other places where it believed illegal aliens were employed. Specifically, plaintiffs challenge the constitutionality of "factory surveys" occurring in northern California during the week of April 16, 1982, as part of "Project Jobs," a nation-wide enforcement action against undocumented aliens.

Four years have passed since the inception of this action, but it has not yet been brought to trial. In March 1984, plaintiffs moved for a preliminary injunction to prohibit INS factory searches absent either voluntary employer consent, unprovoked exigent circumstances or a search warrant identifying specific persons suspected of being illegal aliens. Eighteen months after the motion was filed, the district court granted the requested preliminary injunction. 643 F.Supp. 884. It denied a motion by INS requesting a stay pending appeal. INS timely appealed.

STANDARD OF REVIEW

Our review of a motion for preliminary injunction is "very limited." Apple Computer, Inc. v. Formula International, Inc., 725 F.2d 521, 523 (9th Cir.1984).

A decision to grant a preliminary injunction "will not be reversed simply because the appellate court would have arrived at a different result if it had applied the law to the facts of the case." Sports Form, Inc. v. United Press International, Inc., 686 F.2d 750, 752 (9th Cir.1982).

An order granting or denying a preliminary injunction will be reversed only for abuse of discretion. ¹ Los Angeles Memorial Coliseum Commission v. National Football League, 634 F.2d 1197, 1200 (9th Cir.1980).

A preliminary injunction is warranted if the movant demonstrates either: "(1) a combination of probable success on the merits and the possibility of irreparable injury or (2) that serious questions are raised and the balance of hardships tips Factual findings in support of a decision to grant a preliminary injunction are reviewed for clear error. Zepeda v. United States INS, 753 F.2d 719, 725 (9th Cir.1983). Legal issues underlying a decision to grant an injunction are reviewed de novo, as is a district court's finding that plaintiffs are likely to succeed on the merits of those issues. Lopez v. Heckler, 725 F.2d 1489, 1498 (9th Cir.1984), vacated on other grounds, 469 U.S. 1082, 105 S.Ct. 583, 83 L.Ed.2d 694 (1984).

                sharply in its favor."   Los Angeles Coliseum, 634 F.2d at 1201. 2
                

In deciding a motion for a preliminary injunction, the district court "is not bound to decide doubtful and difficult questions of law or disputed questions of fact." Dymo Industries, Inc. v. Tapewriter, Inc., 326 F.2d 141, 143 (9th Cir.1964). A grant of a preliminary injunction will not be reversed unless the district court failed to consider the relevant factors or committed a clear error of judgment. Zepeda, 753 F.2d at 725.

ANALYSIS

I. Introduction

This preliminary injunction consists of 11 substantive provisions. INS focuses its challenge on the two provisions requiring that warrants specifically identify persons targeted in its factory searches. It also challenges the remainder of the injunction as an improper restriction on INS enforcement, arguing plaintiffs failed to show "systematic misconduct contrary to official INS policy."

II. Propriety of Injunctive Relief

The first issue confronting us is whether the preliminary injunction was warranted. We conclude that the district court did not abuse its discretion in granting preliminary injunctive relief.

INS raises a weak argument that injunctive relief is unwarranted here because the evidence shows "merely sporadic violations of official policy by individual agents." The record supports the district court's finding of an "evident systematic policy and practice of fourth amendment violations" by INS. The extensive evidence of INS agents exceeding official policy can hardly be characterized as "[a]n ambiguous, isolated incident [not warranting] injunctive relief." INS v. Delgado, 466 U.S. 210, 218 n. 6, 104 S.Ct. 1758, 1764 n. 6, 80 L.Ed.2d 247 n. 6 (1984). ³

Plaintiffs observe correctly that INS has raised no specific challenges to the detailed factual findings on which the district court based the injunction.

INS argues that injunctive relief should not have been granted because plaintiffs failed to show a "substantial risk of repetition of past incidents." The district court made an explicit finding that, absent an injunction, "plaintiffs are quite likely to suffer irreparable harm" from continued fourth amendment violations by INS. "[P]roof of past injury, especially of a repetitive character, is not immaterial to the issue of likely recurrence." LaDuke v. Nelson, 762 F.2d 1318, 1324 n. 8 (9th Cir.1985), amended on other grounds, 796 F.2d 309 (9th Cir.1986).

INS is correct that courts are reluctant to enjoin law enforcement agencies entitled to "the widest latitude in the 'dispatch of [their] own internal affairs,' " Rizzo v. Goode, 423 U.S. 362, 378-79, 96 S.Ct. 598, 607-08, 46 L.Ed.2d 561 (1976) (quoting Cafeteria Workers v. McElroy, 367 U.S. 886, 896, 81 S.Ct. 1743, 1749, 6 L.Ed.2d 1230 (1961)). However, the INS has "no discretion with which to violate constitutional rights." LaDuke, 762 F.2d at 1325. The district court's findings of fourth amendment violations were sufficient to support the decision to grant some preliminary injunctive relief.

III. Restrictions on Entry Warrants

Next we must decide whether the specific provisions in the preliminary injunction order were proper and whether the terms of the injunction resulted from a proper application of substantive law.

A. Specificity of the Entry Warrant

The INS contends that paragraphs two and three of the injunction ⁴ are invalid. It relies on the District of Columbia Circuit's decision in Blackie's House of Beef v. Castillo, 659 F.2d 1211 (D.C.Cir.1981), cert. denied, 455 U.S. 940, 102 S.Ct. 1432, 71 L.Ed.2d 651 (1982), for the proposition that a factory search may be based on a warrant that identifies no illegal aliens by name.

Blackie's rejected the contention that the INS open-ended warrant was comparable to the routine administrative inspection warrant upheld in Marshall v. Barlow's, Inc., 436 U.S. 307, 98 S.Ct. 1816, 56 L.Ed.2d 305 (1978). 659 F.2d at 1218. Instead, it defined a hybrid standard of probable cause applicable to INS enforcement. See 659 F.2d at 1222-25. A showing less than that required for criminal warrants was deemed appropriate because (1) Congress contemplated vigorous INS enforcement, including entries onto private premises to question aliens, and (2) INS activities are "not analogous to a criminal investigation" where the employer faces "no sanctions of any kind" for employing illegal aliens. 659 F.2d at 1218.

The court in Blackie's, while accepting a hybrid probable cause standard for INS entry warrants, ⁵ emphasized the need for "sufficient safeguards to assure that nothing impermissible would be left to the discretion of the INS agents." 659 F.2d at 1226. We have held that an application for a search warrant "must have sufficient specificity to enable the judge to make an independent determination of whether probable cause exists and to prevent the agents from having uncontrolled discretion to rummage everywhere in search of seizable items once lawfully within the premises." United States v. Condo, 782 F.2d 1502, 1505 (9th Cir.1986) (emphasis in original).

Here, the district court stopped short of requiring the INS to identify all suspected illegal aliens by name to obtain an entry warrant. But, it required the INS, through "the warrant and its supporting affidavits," to provide information of sufficient specificity to assure that finding such persons is "reasonably likely." (Emphasis added).

At oral argument, we pressed plaintiff's counsel to propose a particularity standard for the INS to use in obtaining entry warrants for factory raids targeted at undocumented aliens. Counsel's inability to propose a workable standard reflects the difficulty of enforcing immigration laws where little documentary or descriptive information is available concerning suspected undocumented aliens.

The requirement to "identify the suspect(s) by name" or to provide "enough specific identifying information to assure that the search for that person is reasonably likely to result in finding that person" imposes an unreasonable and impractical burden on the INS. We agree with the District of Columbia Circuit that "warrants and accompanying affidavits [that] narrow down the field of potentially vulnerable persons to those employees whom INS agents might reasonably believe to be aliens," 659 F.2d at 1226, satisfy the requirements of the Fourth Amendment even where the targeted persons are not identified by name. ⁶ The specificity that paragraphs two and three of the injunction order demand for entry warrants is not required under the Fourth Amendment....