Ortega–Melendres v. Arpaio

• Decision Date: 23 December 2011
• Docket Number: No. CV–07–2513–PHX–GMS.,CV–07–2513–PHX–GMS.
• Citation: 836 F.Supp.2d 959
• Parties: Manuel de Jesus ORTEGA–MELENDRES, et al., Plaintiffs, v. Joseph M. ARPAIO, in his individual capacity as Sheriff of Maricopa County, Arizona, et al., Defendants.
• Court: U.S. District Court — District of Arizona

836 F.Supp.2d 959

Manuel de Jesus ORTEGA–MELENDRES, et al., Plaintiffs,

v.Joseph M. ARPAIO, in his individual capacity as Sheriff of Maricopa County, Arizona, et al., Defendants.

No. CV–07–2513–PHX–GMS.

United States District Court,

D. Arizona.

Dec. 23, 2011.

James Duff Lyall, Daniel Joseph Pochoda, ACLU, Phoenix, AZ, Nancy Anne Ramirez, MALDEF, Los Angeles, CA, Andre Segura, ACLU, New York, NY, Andrew Carl Byrnes, Covington & Burling LLP, Redwood Shores, CA, Anne Lai, Attorney at Law, New Haven, CT, 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 Plaintiff.

Kerry Scott Martin, Ogletree Deakins Nash Smoak & Stewart PC, Tucson, AZ, Alec R. Hillbo, Leigh Eric Dowell, Ogletree Deakins Nash Smoak & Stewart PC, Thomas P. Liddy, Maricopa County Attorneys Office-Civil Services Division, James Lawrence Williams, Timothy James Casey, Schmitt Schneck Smyth Casey & Even PC, Julie A. Pace, The Cavanagh Law Firm PA, Phoenix, AZ, for Defendant.

Amin Aminfar, U.S. Dept. of Justice, Washington, DC, for Movant/Amicus.

Elizabeth A. Strange, U.S. Attorneys Office, Tucson, AZ, for Amicus.

ORDER

G. MURRAY SNOW, District Judge.

Pending before the Court are Defendants' Motion for Summary Judgment (Doc. 413), Plaintiffs' Renewed Motion for Class Certification (Doc. 420), Plaintiffs' Motion for Partial Summary Judgment (Doc. 421), and Defendants' Motion for Leave to File Sur–Reply. (Doc. 469). At oral arguments on December 22, 2011, Plaintiffs moved for summary judgment on Ortega–Melendres's Fourth Amendment claims. (Doc. 490). For the reasons stated below, Defendants' motion for summary judgment is granted in part and denied in part, Plaintiffs' motion for partial summary judgment on the Equal Protection claims is denied, Plaintiffs' motion for summary judgment on the Fourth Amendment claims is granted in part and denied in part, Plaintiffs' motion for class certification is granted, and Defendants' motion for leave to file a sur-reply is dismissed as moot.¹

BACKGROUND

1. Factual Background

This putative class action civil rights suit alleges that the Maricopa County Sheriff's Office (“MCSO”) engages in a policy or practice of racial profiling, and a policy stopping persons without reasonable suspicion that criminal activity is afoot, in violation of Plaintiffs' rights under the Fourteenth and Fourth Amendments. (Doc. 26 ¶ 2). Under an agreement with the Department of Immigration and Customs Enforcement (“ICE”), certain MCSO deputies had been certified to enforce federal civil immigration law. (Doc. 413, Ex. 5). The agreement between MCSO and ICE operated pursuant to section 287(g) of the Immigration and Nationality Act (“INA”), and the participating officers were therefore said to be 287(g) certified. 8 U.S.C. § 1357(g) (2006). On October 16, 2009, the agreement between MCSO and ICE was modified so that MCSO officers no longer had authority to enforce federal civil immigration violations in the field, but could continue to do so in the jails. (Doc. 422 ¶ 10). Plaintiffs allege that under the guise of enforcing immigration law, MCSO officers are in fact engaged in a policy of racially profiling Latinos. (Doc. 26 ¶ 3).

The five named Plaintiffs were stopped by MCSO officers during three incidents, on September 27, 2007, December 7, 2007, and March 28, 2008. ( Id. ¶¶ 53–119). In addition, Somos America (“Somos”), a non-profit membership organization, claims that it and its members have been harmed by the alleged policy. ( Id. ¶ 10). In Count One, Plaintiffs claim that MCSO has violated and is violating the Equal Protection Clause of the Fourteenth Amendment. ( Id. ¶¶ 128–37). In Count Two, they allege that MCSO's stops of the named Plaintiffs violated the Fourth Amendment, as applied to MCSO through the Fourteenth Amendment. ( Id. ¶¶ 138–43). In Count Three, they allege that those same stops also violated the search and seizure protections of Article II, Section 8 of the Arizona State Constitution. ( Id. ¶¶ 144–47). In Count Four, they argue that MCSO's policy violates Title VI of the Civil Rights Act of 1964, which forbids race discrimination in federally funded programs. ( Id. ¶¶ 148–54). Plaintiffs seek certification of a class consisting of “All 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.” (Doc. 420 at 1). Plaintiffs seek only equitable relief, in the form of a declaratory judgment, an injunction against Defendant, attorneys' fees, and “such other relief as the Court deems just and proper.” (Doc. 26 at 28–29).

Defendants now move for summary judgment on all counts. First, they argue that the Plaintiffs are not likely to suffer future injury, and that they therefore lack standing to obtain equitable relief under the test established in City of Los Angeles v. Lyons, 461 U.S. 95, 103 S.Ct. 1660, 75 L.Ed.2d 675 (1983). (Doc. 413 at 14–17). Next, they argue that the vehicle traffic stops of the named Plaintiffs were supported by probable cause, and that the Fourth Amendment and Arizona Constitutional claims therefore fail under Whren v. U.S., 517 U.S. 806, 116 S.Ct. 1769, 135 L.Ed.2d 89 (1996). (Doc. 413 at 18–22). Finally, they claim that the record shows that MCSO does not engage in intentional discrimination, and that the Fourteenth Amendment and Title VI claims therefore fail. (Doc. 413 at 23–31). Plaintiffs seek summary judgment on Claim One and Claim Four, and certification of their proposed class. (Docs. 416, 420, 421).

2. Legal Background

In 1952, Congress passed the Immigration and Nationality Act (“INA”), 8 U.S.C. § 1101 et seq., which set forth “a comprehensive federal statutory scheme for regulation of immigration and naturalization.” De Canas v. Bica, 424 U.S. 351, 353, 96 S.Ct. 933, 47 L.Ed.2d 43 (1976). The INA contains both criminal and civil provisions regarding those who either enter the United States without legal authority or enter with legal authority but remain after that authority expires. See, e.g.,8 U.SC. §§ 1302, 1306, 1325 (2006) (criminal provisions); 8 U.S.C. §§ 1182(a)(6)(A)(i), 1227(a)(1)(B)-(C) (2006) (civil provisions regarding admissibility and deportation). The Supreme Court, referencing specific criminal provisions of the INA, has written that “entering or remaining unlawfully in this country is itself a crime.” I.N.S. v. Lopez–Mendoza, 468 U.S. 1032, 1038, 104 S.Ct. 3479, 82 L.Ed.2d 778 (1984). The criminal provisions cited in Lopez–Mendoza set forth with particularity what actions constitute “entering or remaining unlawfully.” For example, entering or attempting to enter the United States other than at a legal border crossing is a federal crime. 8 U.S.C. § 1325. A non-citizen who remains within the United States and willfully fails to register or be fingerprinted after thirty days, or who knowingly files a fraudulent application, has also committed a federal offense. 8 U.S.C. §§ 1302, 1306. All aliens over the age of 18, moreover, must carry their registration papers at all times, under penalty of a criminal misdemeanor. 8 U.S.C. § 1304(e). There is no provision in the INA or any other federal law, however, that specifically criminalizes mere presence in the United States without authority to remain.² The Supreme Court has acknowledged that “[a] deportation proceeding is a purely civil action to determine eligibility to remain in this country.” Lopez–Mendoza, 468 U.S. 1032, 104 S.Ct. 3479.

Being present in the country without authorization to remain “is only a civil violation.” Gonzales v. City of Peoria, 722 F.2d 468, 476 (9th Cir.1983)overruled on other grounds by Hodgers–Durgin v. de la Vina, 199 F.3d 1037 (9th Cir.1999). Nothing in Lopez–Mendoza alters this law. In a recent decision, the Ninth Circuit found that a state trooper did not commit an “egregious violation” of the Fourth Amendment sufficient to trigger the exclusionary rule in a civil proceeding because the language of Lopez–Mendoza was such that “a reasonable officer could have interpreted that statement to mean an alien's unlawful presence in this country is itself a crime.” Martinez–Medina v. Holder, 616 F.3d 1011, 1017 (9th Cir.2010). In amending and superceding that opinion, the court clarified that “[a]lthough a reasonable officer could have been confused by these statements in Lopez–Mendoza and Martinez [ v. Nygaard, 831 F.2d 822 (9th Cir.1987) ] ... a close reading of those cases demonstrates that neither meant to suggest that an alien's mere unauthorized presence is itself a crime.” Martinez–Medina, 673 F.3d 1029, 1036, 2011 WL 855791, at *6 (9th. Cir. Mar. 11, 2011). The panel went on to emphasize that “Gonzales's observation that ‘an alien who is illegally present in the United States ... [commits] only a civil violation,’ ... remain[s] the law of the circuit, binding on law enforcement officers.” Id. (quoting Gonzales, 722 F.2d at 476–77). An alien who “overstays a valid visa or otherwise remains in the country after the expiration of a period authorized by the Department of Homeland Security,” therefore, although he may be subject to deportation, has violated no criminal statute. Martinez–Medina, 673 F.3d at 1036 n. 4, 2011 WL 855791, at *6 n. 4.

Officers enforcing the immigration laws must comply with the Fourth Amendment, which protects the right of the people to be free from “unreasonable searches and seizures.” U.S. Const. amend IV. Probable cause to arrest a person will flow when “the facts and circumstances within the knowledge of the arresting officers and of which they had reasonably trustworthy information were sufficient to warrant a prudent man in believing that [the person arrested] had committed or was committing an offense.”...