INTERNATIONAL MOLDERS'AND ALLIED WORKERS v. Nelson

• Decision Date: 04 September 1986
• Docket Number: No. C-82-1896 RPA.,C-82-1896 RPA.
• Parties: INTERNATIONAL MOLDERS' AND ALLIED WORKERS' LOCAL UNION NO. 164, et al., Plaintiffs, v. Alan NELSON, et al., Defendants.
• Court: U.S. District Court — Northern District of California

643 F. Supp. 884

INTERNATIONAL MOLDERS' AND ALLIED WORKERS' LOCAL UNION NO. 164, et al., Plaintiffs, v. Alan NELSON, et al., Defendants.

No. C-82-1896 RPA.

United States District Court, N.D. California.

September 4, 1986.

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Patrick Ramirez S. Bupara, Judith Whetstine, Asst. U.S. Attys., San Francisco, Cal., David Kline, Office of Immigration Litigation, Washington, D.C., for defendants.

Morris J. Baller, Susan E. Brown, Mexican American Legal Defense and Educational Fund, San Francisco, Cal., Bill Ong Hing, Golden Gate University, Immigration Law Clinic, Berkeley, Cal., Mort Cohn, Golden Gate University, Constitutional Law Clinic, San Francisco, Ca., William R. Tamayo, Asian Law Caucus, Inc., Oakland, Cal., Alan L. Schlosser, American Civil Liberties Union, Foundation of Northern California, San Francisco, Cal., Kip Steinberg, National Lawyers Guild, San Francisco, Cal., David Grabill, California Rural Legal Assistance, Santa Rosa, Cal., for plaintiffs.

SECOND AMENDED ORDER GRANTING PRELIMINARY INJUNCTION AND DENYING STAY

AGUILAR, District Judge.

This case arises out of approximately fifty workplace raids (also known as "factory surveys" and "area control operations") conducted by the Immigration and Naturalization Service (INS) and Border Patrol during the week of April 26, 1982. These raids took place in Northern California as part of a nationwide campaign known as "Project Jobs" or "Operation Jobs." Plaintiffs also describe numerous other workplace raids conducted after Operation Jobs.¹

The named plaintiffs are several businesses that have been raided by the INS, individual workers who allegedly have been detained or seized in these same raids, and a labor union that represents some of these workers. The Court already has certified a plaintiff class consisting of

all persons of Hispanic or other Latin American ancestry, residing or working within the jurisdiction of the San Francisco District Office of the United States Immigration and Naturalization Service (INS) and/or the Livermore Border Patrol Sector, who have in the past, are now, or may in the future be subjected to the policies, practices, and conduct of INS and/or the Border Patrol during the course of INS area control operations directed at places of employment other than open fields.

See International Molders' & Allied Workers' Local Union v. Nelson, 102 F.R.D. 457 (N.D.Cal.1983). The defendants are various commissioners, directors, and agents of the INS and Border Patrol.

Plaintiffs contend that defendants' raids, in which INS and Border Patrol agents arrive at a workplace, position themselves at exits, and enter in force to question workers about their citizenship status, violate plaintiffs' constitutional rights. Plaintiffs claim that these raids are often conducted without a warrant, with an improper warrant, with the coerced consent" of the employer, or after the agents themselves deliberately provoke exigent circumstances to justify their entry. Once inside, agents indiscriminately question employees of hispanic appearance, whether or not the agents have any reasonable, articulable suspicion of alienage. Those workers who cannot immediately prove their lawful status to the satisfaction of one or more agents are detained or arrested. Other workers are seized and abused even before agents have asked them any questions about their citizenship status. United States citizens and lawful aliens are unlawfully detained, interrogated, harrassed, and assaulted solely because of their appearance or language. Finally, it is primarily Hispanic workers who are so treated; Asian and Caucasion aliens do not suffer the same indignities. Plaintiffs have offered deposition and affidavit testimony describing nearly thirty raids at the premises of twenty-four employers. Defendants have offered rebuttal testimony.

The questions raised by the present motion for preliminary injunction concern 1) the manner in which defendants gain entry into the non-public areas of private business premises, and 2) once on the premises, the manner in which defendants conduct the raids. More specifically, the five central issues² are whether the defendants routinely:

1. use general, open-ended "warrants of inspection" that violate the fourth amendment;

2. coerce employer "consent" in order to circumvent the warrant requirement;

3. deliberately create, in bad faith, "exigent circumstances" in order to circumvent the warrant requirement;

4. detain and seize workers without reasonable, articulable suspicion of illegal alienage in violation of the fourth amendment;

5. single out Hispanic workers for interrogation and detention, violating these workers' right to equal protection.

To obtain a preliminary injunction, plaintiffs must either establish a likelihood of success on the merits, or present serious questions and show that the balance of hardships tips sharply in their favor. In either formulation of this "sliding scale" Ninth Circuit test, plaintiffs must demonstrate a "significant threat" of irreparable harm absent the issuance of the injunction. Oakland Tribune, Inc. v. Chronicle Publishing Co., 762 F.2d 1374, 1376 (9th Cir.1985). It bears repeating that on a motion for preliminary injunction this Court is not required to make any binding findings of fact, but need only find probabilities that the necessary facts can be proved. Sierra On-Line, Inc. v. Phoenix Software, Inc., 739 F.2d 1415, 1423 (9th Cir.1984).

The Court has painstakingly reviewed approximately two thousand pages of evidentiary material comprising 49 deposition transcripts and 64 affidavits of 74 different witnesses. The Court has endeavored to identify the uncontradicted, corroborated, or particularly credible testimony, and that testimony which is vigorously contested, equivocal, or less credible. The Court concludes that, although certain evidence relating to several of the alleged incidents is inconclusive, there is sufficient evidence of several INS policies and practices that result in recurrent constitutional violations to merit a preliminary injunction.

STANDING

As a preliminary matter, defendants argue that the plaintiff class has no standing to object to the entry of third parties onto business premises where the class members are employed; only the owner or manager of the business may so object. Defendants further suggest that because the plaintiff businesses are not class members, and because they cannot vicariously assert the constitutional rights of others, they are not entitled to relief on this motion.

It is true that employers and employees cannot vicariously assert each others' fourth amendment rights. See, e.g., Alderman v. United States, 394 U.S. 165, 171-72, 89 S.Ct. 961, 965-66, 22 L.Ed.2d 176 (1969); United States v. Nadler, 698 F.2d 995, 998 (9th Cir.1983). Also, it is uncertain to what degree workers can have any subjective expectation of privacy in the workplace. INS v. Delgado, 466 U.S. 210, 104 S.Ct. 1758, 1767, 80 L.Ed.2d 247 (1984) (Powell, J., conc.).

Yet plaintiffs do not suggest that the business plaintiffs and the class plaintiffs are vicariously asserting each other's rights. Rather, the corporate entities have their own rights to assert based on the alleged warrantless entries, improper warrants, coerced consent, or fabricated exigent circumstances involving their properties. E.g., Blackie's House of Beef, Inc. v. Castillo, 659 F.2d 1211, 1216 n. 5 (D.C.Cir. 1981). Although the businesses are not class members, they are nonetheless parties and may seek injunctive relief on their own behalf. Cf. Zepeda v. INS, 753 F.2d 719 (9th Cir.1985).

The individual worker plaintiffs, as the objects of the searches, interrogations, detentions, and seizures, independently meet the traditional Article III standing requirements. They clearly have a "personal stake" in the litigation, owing to their alleged injuries caused by the purported illegal conduct of the defendants, which injuries are likely to be redressed if this Court rules in their favor. See LaDuke v. Nelson, 762 F.2d 1318, 1322-23 (9th Cir.1985). Even if the Court treats the workplace as a public area in which workers have no reasonable expectation of privacy, workers are still entitled to assert their fourth amendment rights against unreasonable searches, detentions, and seizures of their persons, and their fifth amendment rights to equal protection.

All plaintiffs have standing.

INS ENTRIES INTO WORKPLACES

Defendants attempt to justify most of their workplace entries on at least one of three grounds: "warrants of inspection", authorizing entry into the non-public areas of particular premises; "consent" to enter the premises given by an owner or manager; and "exigent circumstances" that require warrantless, non-consenual entry in order to pursue and apprehend fleeing suspects.

Warrants of Inspection

It appears that during Operation Jobs warrants were obtained for eight of the approximately fifty raids. Subsequent to Operations Jobs, warrants were used even less frequently. After this case was filed and the Ninth Circuit decided ILGWU v. Sureck, 681 F.2d 624 (9th Cir.1982), rev'd sub. nom. INS v. Delgado, 466 U.S. 210, 104 S.Ct. 1758, 80 L.Ed.2d 247 (1984), defendants began to utilize warrants more frequently, and now use them for many, but not all, workplace raids.

The warrants, labeled "warrants of inspection," typically name one or more individuals thought to be illegal aliens who are working at a specified location, but then go on to allow the INS to seek and seize unspecified and unlimited "others" on the premises who may also be illegal aliens. Although a warrant may list from four to thirteen suspected illegal aliens, as many as seventy people may be arrested, and few or none of these will be the people named in the warrant. In the eight warrant-based raids described in this motion, 192 individuals were arrested. Of these, 179 were "other...