Manuel De Jesus Ortega Melendres v. Arpaio

• Citation: 989 F.Supp.2d 822
• Decision Date: 24 May 2013
• Docket Number: No. PHX–CV–07–02513–GMS.,PHX–CV–07–02513–GMS.
• Parties: Manuel de Jesus Ortega MELENDRES, on behalf of himself and all others similarly situated; et al., Plaintiffs, v. Joseph M. ARPAIO, in his individual and official capacity as Sheriff of Maricopa County, AZ; et al., Defendants.
• Court: U.S. District Court — District of Arizona

989 F.Supp.2d 822

Manuel de Jesus Ortega MELENDRES, on behalf of himself and all others similarly situated; et al., Plaintiffs,

v.Joseph M. ARPAIO, in his individual and official capacity as Sheriff of Maricopa County, AZ; et al., Defendants.

No. PHX–CV–07–02513–GMS.

United States District Court,

D. Arizona.

May 24, 2013.

James Duff Lyall, Kelly Joyce Flood, Daniel Joseph Pochoda, ACLU, Phoenix, AZ, Nancy Anne Ramirez, MALDEF, Los Angeles, CA, Andre Segura, ACLU, New York, NY, Anne Lai, Attorney at Law, Irvine, CA, Cecillia D. Wang, ACLU, David Hults, Tammy Albarran, Covington & Burling LLP, San Francisco, CA, Lesli Rawles Gallagher, Covington & Burling LLP, San Diego, CA, Stanley Young, Covington & Burling LLP, Redwood Shores, CA, for Plaintiffs.

James Lawrence Williams, Schmitt Schneck Smyth & Herrod PC, Ann Thompson Uglietta, Alec R. Hillbo, Leigh Eric Dowell, Ogletree Deakins Nash Smoak & Stewart PC, Thomas P. Liddy, Phoenix, AZ, Kerry Scott Martin, Ogletree Deakins Nash Smoak & Stewart PC, Tucson, AZ, for Defendants.

FINDINGS OF FACT AND CONCLUSIONS OF LAW

G. MURRAY SNOW, District Judge.

At issue in this lawsuit are: 1) the current policies and practices of the Maricopa County Sheriff's Office (“MCSO”) by which it investigates and/or detains persons whom it cannot charge with a state crime but whom it believes to be in the country without authorization, and 2) the operations the MCSO claims a right to use in enforcing immigration-related state criminal and civil laws, such as the Arizona Human Smuggling Statute, Ariz.Rev.Stat. (“A.R.S.”) § 13–2319 (Supp.2010), and the Arizona Employer Sanctions Law, A.R.S. § 23–211 et seq. (Supp.2010). According to the position of the MCSO at trial, it claims the right to use the same type of saturation patrols to enforce state laws that it used during the time that it had authority delegated from the federal government to enforce civil violations of federal immigration law.

During the time relevant to this lawsuit, the Immigration and Customs Enforcement Office of the Department of Homeland Security (“ICE”) delegated authority to enforce federal immigration law to a maximum of 160 MCSO deputies pursuant to Section 287(g) of the Immigration and Nationality Act, 8 U.S.C. § 1357(g) (“the 287(g) program”). In the 287(g) training that ICE provided, and in other policies and procedures promulgated by the MCSO, MCSO deputies were instructed that they could consider race or “Mexican ancestry” ¹ as one factor among others in making law enforcement decisions during immigration enforcement operations without violating the legal requirements pertaining to racial bias in policing. Pursuant to its 287(g) authority, the MCSO used various types of saturation patrols described below in conducting immigration enforcement. During those patrols, especially the large-scale saturation patrols, the MCSO attempted to leverage its 287(g) authority by staffing such operations with deputies that both were and were not 287(g) certified.

ICE has since revoked the MCSO's 287(g) authority. In response, the MCSO trained all of its officers on immigration law, instructed them that they had the authority to enforce it, and promulgated a new “LEAR” policy. The MCSO continues to follow its LEAR policy, which requires MCSO deputies to detain persons believed to be in the country without authorization but whom they cannot arrest on state charges. Such persons are either delivered directly to ICE by the MCSO or detained until the MCSO receives a response from ICE as to how to deal with them. Until December 2011, the MCSO operated under the erroneous assumption that being an unauthorized alien in this country established a criminal violation of federal immigration law which the MCSO was entitled to enforce without 287(g) authorization. However, in the absence of additional facts, being within the country without authorization is not, in and of itself, a federal criminal offense. The LEAR policy, however, remains in force.

Pursuant to this policy and the MCSO's enforcement of state law that incorporates immigration elements, the MCSO continues to investigate the identity and immigration status of persons it encounters in certain situations. In undertaking such investigations, MCSO deputies continue to apply the indicators of unlawful presence (including use of race as one amongst other factors) they received in the 287(g) training from ICE. Further, in enforcing immigration-related state laws, the MCSO either continues to use, or asserts the right to continue to use, the same type of saturation patrols that it used when it had full 287(g) authority. Those saturation patrols all involved using traffic stops as a pretext to detect those occupants of automobiles who may be in this country without authorization. The MCSO asserts that ICE's termination of its 287(g) authority does not affect its ability to conduct such operations because a person's immigration status is relevant to determining whether the Arizona state crime of human smuggling—or possibly the violation of other state laws related to immigration—are occurring.

Plaintiffs challenge these policies and practices. The Court certified a Plaintiff class of “[a]ll Latino persons who, since January 2007, have been or will be in the future stopped, detained, questioned or searched by MCSO agents while driving or sitting in a vehicle on a public roadway or parking area in Maricopa County Arizona.” Ortega–Melendres v. Arpaio, 836 F.Supp.2d 959, 992 (D.Ariz.2011) (internal quotation marks omitted). The issues in this lawsuit are: (1) whether, and to what extent, the Fourth Amendment permits the MCSO to question, investigate, and/or detain Latino occupants of motor vehicles it suspects of being in the country without authorization when it has no basis to bring state charges against such persons; (2) whether the MCSO uses race as a factor, and, if so, to what extent it is permissible under the Fourth Amendment to use race as a factor in forming either reasonable suspicion or probable cause to detain a person for being present without authorization; (3) whether the MCSO uses race as a factor, and if so, to what extent it is permissible under the equal protection clause of the Fourteenth Amendment to use race as a factor in making law enforcement decisions that affect Latino occupants of motor vehicles in Maricopa County; (4) whether the MCSO prolongs traffic stops to investigate the status of vehicle occupants beyond the time permitted by the Fourth Amendment; and (5) whether being in this country without authorization provides sufficient reasonable suspicion or probable cause under the Fourth Amendment that a person is violating or conspiring to violate Arizona law related to immigration status.

As is set forth below, in light of ICE's cancellation of the MCSO's 287(g) authority, the MCSO has no authority to detain people based only on reasonable suspicion, or probable cause, without more, that such persons are in this country without authorization. The MCSO lost authority to enforce the civil administrative aspects of federal immigration law upon revocation of its 287(g) authority. And, in the absence of additional facts that would provide reasonable suspicion that a person committed a federal criminal offense either in entering or staying in this country, it is not a violation of federal criminal law to be in this country without authorization in and of itself. Thus, the MCSO's LEAR policy that requires a deputy (1) to detain persons she or he believes only to be in the country without authorization, (2) to contact MCSO supervisors, and then (3) to await contact with ICE pending a determination how to proceed, results in an unreasonableseizure under the Fourth Amendment to the Constitution.

Further, in determining whom it will detain and/or investigate, both with respect to its LEAR policy, and in its enforcement of immigration-related state law, the MCSO continues to take into account a suspect's Latino identity as one factor in evaluating those persons whom it encounters. In Maricopa County, as the MCSO acknowledged and stipulated prior to trial, Latino ancestry is not a factor on which it can rely in arriving at reasonable suspicion or forming probable cause that a person is in the United States without authorization. Thus, to the extent it uses race as a factor in arriving at reasonable suspicion or forming probable cause to stop or investigate persons of Latino ancestry for being in the country without authorization, it violates the Fourth Amendment. In addition, it violates the Plaintiff class's right to equal protection under the Fourteenth Amendment to the Constitution and Title VI of the Civil Rights Act of 1964.

Moreover, at least some MCSO officers, as a matter of practice, investigate the identities of all occupants of a vehicle when a stop is made, even without individualized reasonable suspicion. Further, MCSO policy and practice allow its officers to consider the race of a vehicle's occupants in determining whether they have reasonable suspicion to investigate the occupants for violations of state laws related to immigration, or to enforce the LEAR policy. In some instances these policies result in prolonging the traffic stop beyond the time necessary to resolve the issue that initially justified the stop. When the deputies have no adequate reasonable suspicion that the individual occupants of a vehicle are engaging in criminal conduct to justify prolonging the stop to investigate the existence of such a crime, the extension of the stop violates the Fourth Amendment's prohibition against unreasonable seizures.

Finally, the knowledge that a person is in the country without authorization does not, without more, provide sufficient reasonable suspicion that a person has violated Arizona criminal laws relating to immigration, such as the Arizona Human Smuggling Act, to justify a Terry stop for purposes of investigative detention....