good morning your honour's my name is ken harper may it please the court i'm here on behalf of the yakima county appellants in this matter your honor this case presents to the court a consideration of whether a fourth amendment seizure analysis shares number of different factors could be taken into account to locate whether or not there was in fact a seizure this was error this was error as a matter of law which this court refused to know in fact your honors the basic premise that the trial court relied there was a terminations of movement through means that was intentionally employed to achieve that purpose and in fact in the record before the trial court there was nothing the trial court pointed to that constituted a instrumentality put into effect to accomplish the seizure that's all very theoretical let's talk about the facts of this case so in this case the question in my mind is whether or not nice to see and chance a chill law would be free to leave wants the state charges to be resolved there's no dispute that he would have been there's no dispute there is nothing in the record that suggests that he would not have been free think this is where it was it was listed as an immigration halt very good i will certainly can see that that's what the dac yakima department of corrections website describes it as as a matter of listing it the purpose of your honor i think quite simply was it was a means of confirming to anyone who looked onto the kind of partner corrections website in conjunction with mr sanchez that shows actual offenses that there was also this other warrant if you will i mean that is what the i two hundred stands for there was this other warrant that existed that related to mr sanchez ochoa and the record shows that the county would have had exactly the same manner of disclosing the warrant from any other jurisdiction that might have had a want to hold on mr sanchez  now that's all the record shows on that and that's different from describing and he didn't that constituted some sort of intentional acquisition of physical control so how does the district court bridge this and this is i think really not so theoretical i hope it's not i hope it addresses your honour's question the way the district court bridges that is it looks to the causal sequence and you can find this articulated by the district court actually quite clearly at twenty four it's really an extraordinary statement and i think it's precisely the source of what the county claims is error reviewable de novo in this excerpt twenty four the two europe and i'm going to read it at length but i'll read this brief question to e fourth in the purposes we know that's the extent of the district court's legal analysis because the next page twenty five the first sentence is having found that the immigration hold placed defendants i'm sorry hold trial court stated that sanchez a choice to adequately allege that the immigration hold noted by d o c will result in its continued confinement so we're now separating the justification have from the register of that very good question or i can cite to the court and here are twenty and this is a little bit awkward i think your honor because and we make this point in passing in our brief there are no findings of fact it's difficult to be clear on this but if you are twenty you're  corrections describing various premises regarding the use of a high two hundred administrative warrants i submit that can't be evidence but that's what the court cites cals before you leave that point man i ask you would you agree that if this statement were in fact true that if the county were not willing to release mrs santa chances even if he posted below his state charges that would be a violation for them it would you agree it would depend on the reason why your honor and i think this is what the county views as and i'm bransford back in the theoretical with apologies and it just depends on why the county would not release mr sanchez if he had posted bail or if he was otherwise scheduled to be released i think what that the sort of the contemporary state of the law on the use of detainers in detaining someone who may have a want or a hold against them is fairly clear and it seems to be clear i'm talking about in the facts in the context of this case for this defendant if the if the statement is true that for mr sanchez a choa the county would not be willing to release him even if he posted bail on his state charges with the state of the record as it was with that well they can only have been willing to release him if the county were not willing to release him even if he posted below his state charges with that had been a validation of what the man ok or specifically answer that question if the bail had been posted and the county had refused to accept the bail is that the promise of the courts if they refuse to release him if he posted bail that's that's that's the statement that's made here yes or no i think that comes to a frankly a why would there be a need to keep him well and i don't think there would be your honor but this is this is this is the point of caesar you're fighting a law this question why and i think i would your honor wants to get a clear point but i don't know that it is clear i don't know that there is a case that states that what your honor just posited i haven't found the case but i understand it makes tremendous sort of conceptual sense but the fourth time is rigid and the fourth movement follows very technical modes of analysis and i as  i want to acknowledge that yes that would be outrageous that would be a fourth of violence and it would be outrageous i was just wondering if it would be a deprivation of liberty at that point odd that's a different analysis though i think your honor if that's the sure it's a fourteenth minute substance want to push it into the fourteenth amendment i think it would be i think it would be i can't state that if the county had i think it would be wrongful i don't think it exists on this record it's certainly a portion of what happened in miranda interfered with her right to post bail pursuant to the state court's ruling stake which probably cost money and in fact in that case the district court acknowledged that would be a fourth no violation to i don't i don't see the distinction you're drawing because if someone has posted bail and is nevertheless detained isn't that a detention past the date when the detainees should be released certainly that you're ok this sort of fair reading of the letter i think from the sheriff that bail would need to be posted with the federal court in order for him to be released at all and i think if the question it's it's it's hard to know quite what to over pursuant to no other i in a justified reason for the county are no legitimised in a reason for the county to hold someone over and we don't contend we had i in a basis to hold this person over but  campbell his point in response is to say we're not sure we're speaking about the same thing we don't think we're using i two hundred the way you're complaining about two forty seven is being used we're in a dialogue right now with u s attorneys whe dialogue process in attorney's office when a dialogue with with other advocacy groups we're trying to find a solution to this problem and what director campbell does not really engage with is the rest of households letter that that was a part of the letter though i don't know that i understand what the point a letter was your honor and that's kind of where i guess partly sympathetic with with the director campbell but also to bring it back to caesar analysis i don't know what difference it makes so if i grant your honors point that that's a part of the letter if i grant that point what that might imply is that mr sanchez or cho is saying i'm coming up for a bail hearing later this week i want to drop my ice hold and director campbell is replying we're going to look into this we're going to try to figure this out but you can bail on your i sold if you talk to the federal courts you can bail on that that's just a little off i mean it's not that director campbell is saying we won't grant your state court bail should you post it here it director campbell frankly miss understanding that federal courts and immigration courts are two different things and he's trying to suggest that there is a way forward for mr sanchez or to show through his  seizure that's no more instrumentality to accomplish a detention through a means set forth for that purpose which is the test kind of wobbling back and forth between theoretical and practical and actually or other s so let me let me so this is this exchange of letters and it does appear to be that this is the evidence cited by the district court in making the statement as true so let me see if i can refocus did it time prisoners if he had posted his bond and now we're back in the theoretical but i'm trying to figure out how this would have played out i mean would it have been the same thing that happened afterwards with that happened before i mean would he have been released into whichever agency would be i guess ice is what is the business here we changed anything it's a great question or i don't know and that would satisfy this far is yakima county jail is concerned he can he can leave he's not being held on state charges anymore once he bails out and i take it you don't take responsibility for what happens to him after analysis i know i keep coming back to that but that's what the fourth is all about the way the district court gets the seizure analysis places heavy emphasis on the letter from department of corrections chief and i just don't see how that comes any closer to an actual seizure event and you take his comment to be really community not doing a favor but saying in the next stage which we're not responsible for it turns out you can bail on a nice hole but that's not our department we can help you with that so you don't think his comment is is trying to tell them we won't let him go unless he gets this bail from the federal court it doesn't say that it doesn't say that and the only evidence in the record that has a direct bearing on that charge clifton is the uncontested declarations of department of corrections staff stating the and furthermore it's not just the declarations but you go deeper in the record there are a couple of e mails where the department of corrections is stating that if someone presents and i to forty seven detained or we will not hold if some of presents and i two hundred we will not hold them unless there is also a request from the the ice officer to transfer that person into ice custody and if there is such a request then we get into this interpretation in our local agreement that can lead to someone's going from the o c custody into ice cassy your i think you want to ask a question i do want to reserve sometimes i'll certainly take a question yes and just make sure i've gotten fused as is the county hold any ice detainees by contract and there are a lot of state and local s s a with these yes but he's not involved in any of that he please the court i'm scott stewart on behalf of the united states i think i may just follow up directly before kind of proceeding in the overall argument answer other questions with how to interpret that paragraph of director campbell's letter i think in the in the context of the record as a whole i think it's pretty clear that what was being referred to there and you know perhaps slightly artfully is you know once we release somebody he can still get bail somehow in the immigration system but we don't we at the county level don't don't accept that bail we're not involved in that that's a matter for the federal administrative immigration courts and you'll have to talk to the folks at d h s or ice to sort of hammer out how that's going to go that's the that's the best way to read the council does let the court come pay all to read the letter that was in light of the other evidence in the record yes your honor and i'd emphasize that although you know this purported to be a factual determination it's a matter of just reading the letter and the few other declarations that bear on the issue it is not a factual determination declaration submitted by my friends on the other side said you know look my understanding is that you know what happens here is that it was a one point as you know folks won't be released or they you know will be released from custody but he clarifies that in paragraph six of his declaration to say what happens is when folks are released on state charges and i can point the court to the precise point in the the excerpts this is an excerpt of record page two forty six paragraph six  where my is here to says what happens when somebody bonds out on state charges and is released on state charges if they're passed over to immigration immigration authorities ice who then will take them to the tacoma county facility to sort of follow up with whatever the immigration proceedings are going to be so given the clear statement that yes you know we would bind out we the county the county would bind out mr sanchez if he posted bail that statement by that declarant and the fair reading of the in the clearly correct reading of the letter those facts the other i think pretty clearly show that the county would accept a bail to be sure you know if there if there was a likelihood given the strong federal interest in picking up and pursuing immigration proceedings that he would in issue moving in sort of to the key kind of critical issue that the united states devotes most of its attention to in the brief your honor is just our fundamental position that there was no fourth amendment seizure here in new any there was no new fourth amendment seizure as a result of the posting of the administrative warrant mr sanchez acho was detained at the time on valid probable cause based state law charges there's no dispute that he got the process intitled to him for the state law to target is that they  from the jail on state charges excuse me and then taken into custody by immigration authorities was that a new seizure that was a new seizure your honor and that required its own justification to be consistent with the fourth amendment and here as as i believe you'll see it in a number of times and in the transcript in the court below as the other side conceded that ice is ice agents can validly execute that's or you know there is a basis by which ice can can act in arrest that person so the basis for that subsequent seizure is the probable cause based problem remove the ability based administrative warrant is the fact that somebody is kind of backing up you know he's there why isn't well why shouldn't responsibility be taken for the effect of that in terms of the bondsman's as he can't get out because we won't post a bond because we know it is going to be taken in by immigration it is not a reality it is a reality on this record your honor that bail bonds bail bonds providers in the exercise of their business judgment do make that determination that it doesn't make good business sense to provide bond for people who are likely to be taken into into further custody and you could imagine the same being true for say you know federal just f b i agents taking in somebody for some kind of a different federal crime but that's a reality any it's a different independent decision by a third party after the key thing i'd emphasize there and this is something that's been hit in just a good number of supreme court and in this court's cases as well be on th case in the supreme court that you need to have a fourth amendment some intentional it use to intentional means attentional intentionally applied a well full restraint something that is and some intentional but something that's designed to seize the person who is claiming to be seized it's not enough that something happens in a but for sense that causes somebody to you know continue their confinement or in the case of on the author to to stop and you know be you know kind of before and in not moving you know when in the face of a law enforcement agent consulate there have been a subsequent seizure if the county officials had refused to release m presented his bond with that have been a subsequent feature there would be a subsequent seizure requiring its own you know independent basis to be justified your honor is in we don't we haven't gotten there in the in this case because of the way it played out  position we differ a bit from the county on this and it's again something that is not sort of ripe so to speak for resolution but our position is that it least in this gets in the kind of a detainer context you know when federal authorities have made a probable cause determination of remove a billet he and his embodied that embody that determination in administrative warrant and have asked somebody at the local or state level to hold somebody briefly forty eight hours is where we you know where we cap it that  justifiable fourth amendment seizure that sort of brief seizure is consistent with the fourth amendment and provides an adequate basis for it so still it's your position that the immigration hold would have been sufficient for forty eight hours to justify continued you know some some localities and states will help us out in that way by by detaining briefly in response to requests the county here did not have that approach but they would you know give us a heads up so that you know we could deploy our you know our few agents that we have to show up theoretical world about well if the reality was is he couldn't post bail and they couldn't provide the cash either i think it's unrealistic to expect that and so we've got a n entity putting an immigration hold on why i don't understand that and that and that does seem to be the reason why he wasn't released until the judge ordered it under the sure let me see if i can i can try to address a dress that concern your honor i think sort of two issues one of the time you know there is an adequate basis for him to be detained because of the state law charges you're getting at the you know the sort of defacto decision sort of down the line the point to emphasize there is that you know for a fourth amendment problem anyway the key thing is you know is the government misusing or abusing its power that's what the supreme court said in broward you know is there something really bad here that's not what we have here we have sort of a you know look we have this notification system we want to make sure people you know know you know what the issue is with somebody who's going to be released how we're going to cooperate with federal authorities that kind of thing not trivialize actual impact of that notice i don't i don't think so your honor i'm speaking of the fourth amendment question about you know means intentionally applied and the point emphasize is that all we have here is a fourth amendment claim as we've noted in our brief you know maybe there's another you know another ground to try to claim here you know it's an excessive bail problem i e you know there could be different different theories that might be  aired not that i would endorse any of them but but for the one claim we have that on which the district court granted the relief here it is the fourth amendment claim which requires a very tight causal nexus where the government is intentionally and willfully deploying it powers in a way that's designed to seize a person and when the county just posting the objective lee correct fact of an immigration warrant here which in turn causes independent actors to make choices that did not cause a seizure under the fourth amendment and therefore that morning may please the court matt adams on behalf mr sanchez with respect to the current status of the case i think it's really important to emphasize that this was a temp ill of a temporary restraining order and in fact we believe that the appeal is moot given not only that the order in force the county to withdraw the hold the but the bell was then placed and paid and he was released but in fact subsequent to the briefing the criminal case was concluded and in fact mr sanchez was then deported to mexico now they're telling us the case is moot i am not telling you the case is moot but that the appeal of the temporary restraining orders moot the case is certainly ready to proceed forward on to the merits to determine whether mr sanchez is entitle to damages to determine whether he is a temporary restraining order i'm sorry are you are you saying we should vacate the temporary restraining order i don't think so under this court's case or you can't have it both ways i mean if the case is moot then there's no reason for it to stay in place if you want to stay in place then how is it moot if because the court is not in a position to undo the action that was in joined by the district court they can no longer take an action that will have an effect on the temporary restraining order that was provided and in addition the temporary restraining order has does have an impact on any future actions and for those two real it's not moot i'm not trying to be difficult here i simply do not understand how you can tell us it doesn't matter anymore but it matters i don't believe it matters i i believe that if it then why do we why don't we just dispose of it and be done with it and save ourselves the next twenty minutes if if the court were to find that it is moot and that it therefore requires that it be vacated as moot we certainly would not be opposed to that but what i think is that the plaintiff's appeal of the temporary restraining order is inappropriate specifically because there's nothing that this court can do that would impact the relief that was provided and it the restraining order in addition  not like there was any minute the question i posed your colleagues across the aisle what difference does it make and the answer appears to be didn't make any difference then and now you tell me a demagogue a difference now it doesn't make any difference now but it made a world of difference he went from the jail to ice custody that is correct and he had the opportunity then to go before directly before the immigration judge and seek a bond if he had not been able to post bail he would have been all the evidence i found suggested that the county would have recognized that if he'd come in and posted his bond well let me point you to the evidence the judgment dose relied on and it was not the hero suicides to pleadings so and and i'm not going to rev it since that is that is correct but the sites to policing and allegations and supporting documents ok and those supporting documents that the court looked at but it is not so  ignore the very first thing which is the ignore the immigration hold that was listed as a cause of confinement on the jail register the state of washington requires the can e to list the names of all detainees and the cause of confinement and what we had was defendants listing an immigration hold as a cause of confinement with nobel available now this is not just in the abstract but instead we have a policy in practice going back to two thousand and fourte which is in the record we looked at the e mail the portrayal of that e mail i think is very different then than what it says in two thousand and fourteen after the clackamas decision that county issued an e mail saying they were no longer going to honor detainers but then they issued a follow up email and that's on page one eighty eight of the record and it says staff as i explained in the recent past we will not be accepting any ice detainers  forty seven forms to hold inmates they have to have an ice warrant i two hundred to be able to be put into ice custody at the completion of their local charges so it wasn't just the hold list on the jail roster there was a clear policy in practice and then we had our own exchange rate exchange with the defendants in which they stated that they would not be able to post bail at the court and all of this all of this are the facts that the judge can look at them point me to that ok let's let me start with something simpler did your client seek to post bail before the two year zero our client did theory because his counsel it already communicated with defendants to ask the holy counsel made that statement and that appears to be what the district court cited but i'm not sure that qualifies as evidence unless you can tell me what it was counsel base that statement on and ideally that's on the record it is we pointed to the two thousand and fourteen e mail that lays out the practice that was in existence at that time and the e mail saying that they honored to hundreds for immigration holds and then the letter itself doesn't say anything let me just cite to defendant campbell's letter so related to another issue in your letter you stated that mr sanchez will not be eligible for bell if he has an isn't a gun for wrecked no the well unfortunately it is correct because county didn't accept bell payments and it camped on an ice hold it can't bail on immigration charges but there was there was no ice hold other than what the county itself had placed upon him he was not in the custody of ice and that is the key factor here it was yakima county who had him in custody who listed the causes of confinement and were in charge of whether he would be released or not they can't speculate about what might happen in the future we've never contended that v h s could not take him into custody and if so he would then have to interact with the chest to obtain his release but when he's in the at whether the district court judge applied the correct legal rule and if so if a lying that if his conclusions are large it will impossible or not supported by inferences from facts in the record there are ample facts in the record to support the conclusions that he's made and it's not just these forms of evidence we point out look at the declarations that defendants themselves have issued which demonstrate that on many occasions they do not release individuals pursuant are as a result of the whole of the been issued against them and i want to cite to the declaration both from the federal government that they submitted as well as the declaration for the defendants so woods turned first to page one ninety two of the administrative record and there we have the ice officers declaration and we heard a snippet of  early on but let's go to keep on reading that down to paragraph eleven and it could not be more clear it says when yakima county informs ice about an eagle ians release date and time and ice is unable to arrive at the jail to take custody immediately upon release ice may request that the county hold the alien for a limited period of time pursuant to the administrative warrant as permitted by the i g a so there we have the federal government acknowledging loud and clear the yes at times we do rely upon the county to detain individuals for us and it's not just the federal government and let's now turn to defendant declaration which was just remarkable about that i mean we had cases earlier this week about how it takes an hour for a canine unit to get from one place to another in montana because it's a big state and so for the nation washington is the same way what's surprising about holding on to somebody while you wait for the immigration authorities to show up we've had the federal government say that they want forty eight hours well what's remarkable about remarkable about that is that the local government does not have the authority to exercise exercise that civil arrest authority congress has carefully doing needed who has the authority to execute in a context where the state of arizona wants to be aggressive and go beyond what the federal government does there's no question about that when the federal government asks the state to hold somebody i have difficulty understanding how that's in conflict with the supremacy clause of the constitution there to doing what the federal government asked them to do it clearly conflicts with the congressional scheme that  been laid out congress carefully delineated the manners in which state and local authorities may support and collaborate with federal immigration authorities or anything that you can point me to that says a state or local authority can't do what the federal government of permanently asked to do yes i think in looking at the in if let me just process your question all the cases come out the other way it's where the the states and localities are purporting to act independently we've got sheriff joe down in phoenix wanting to rest everybody that's not this case and so when they're not at cross purposes when it's not a local official who's off on his own frolic i don't know of authority that says that that means the focal authority can't respond to what the feds ask him to do that's where we go back to the statute itself which it clearly in new rates the situations in which can in fact work with the federal government to enforce immigration laws and it goes back to basic jurisprudence work with erect independently work with even under two eighty seven to eighty seven g agreements it's under the instructions and guidance and then well that's not telling me that's only after the agency has gone through training and a certification process which clearly is absent here no one contends that they've received that training and certification to be authorized enforce immigration laws the other exceptions in the act or when there is a mass influx and the attorney general again creates a written agreement and lays out a very carefully and specified timeframe and what the activities will be again that is not at play here so you have congress carefully delineate when will go on forcing officers may exercise civil rest authority and this is not one of those occasions now were n let in this case military forces get involved i don't know anything in that supports a similar interpretation of federal statute or the federal constitution that would preclude the federal government from calling upon local authorities and that's what you're offering up here and i guess you're now acknowledging there isn't anything that supports that interpretation other than reading from the statute i don't think it says it that clearly but i think that there are cases like melinda's are peo where it says that where a local law enforcement agency extends a detention for immigration purposes that that is an unlawful seizure because they're not authorized to exercise that civil enforcement federal civil and for authority and similarly we go back to general jurisprudence on the fourth amendment that saying an arrest without a warrant without probable cause violates the fourth amendment and there is no judicial warrant here for the county to rely on or they  don't dispute the immigration authorities taking him into custody no because congress has explicitly stated that immigration officials don't need a judicial warrant they're able to exercise the civil arrest authority through mechanisms that include their own administrative forms to themselves directed to federal officials we look at the administrative warrant that's proffered it was directed to federal fish oils and that is in compliance with the statute because the statute authorizes only enumerated federal officials to exercise those arrest powers similarly the implementing regulations lay out a long list of those who are authorized to exercise  arrest warrant the arrest warrant in and of itself provides no basis for a local law enforcement agency absent a two eighty seven g agreement to then arrest an individual but let's return briefly to again the evidence that was before the court that certainly provided the court with inferences with the ability to make inferences from facts in the record and one of that we've talked about the declaration from the federal government but now let's go to defend its own declaration and we turn to page one thirty seven of the records and this is the declaration of defendant hines and again in paragraph eleven it says in some cases where ice is issued administrative warrants for individuals incarcerated at the acma county jail the department of corrections has used the i g a to effectuate a transfer custody to ice upon the completion of criminal sentences on state charges now they go on to say that this isn't their general practice with respect to people or posting bell but they don't disavow that they've done it and in fact in the next paragraph they state that there's a preference for that in gel custody because they want to conserve resources for ice now the other point i'd make here is we've had a couple of references in both their arguments and in these declarations to the i g a what is that that's a contract for beds brace for i'm sorry to rent bed space but that contract does not provide any independent authority and in fact on the plain language of the contract it says the county can only take an individual upon presentation by federal officers and so absent that presentation by fedoroff or officers with the  credentials that are required as specified in the contract the county is not in a position to rely upon that i g a to then assert the authority to unilaterally re designate someone as being in the custody of the federal government what does it have to do always used or there any evidence that was used here the evidence that we have is the record that's our been before the statement from the county and self from and from the chief declaration we have the e mail from the chief to his staff instructing individuals that yes you may hold folks and i to forward and i to hundreds and in addition we have the declaration from experience criminal attorneys we had the judge talking about his own experience before this court before he was a federal judge all all of these are inferences that the judge is permitted to make from the facts that are in the record was his conclusion illogical now on on re man and the county of course can go back and try to demonstrate that this conclusion was wrong they'll have a chance through discovery just as well have a chance through discovery to try to do what we say is call their bluff and show that indeed they have a long record of detaining individuals who post those gone on in the meantime know the county asked that the discovery be stayed pending this appeal and so there's not been an opportunity yet and in fact that's what the county is trying to do is short cut seek a short cut to challenge the judge's decision as if this were a final rule on a complete record the county cites to the fact that there is no formal recites taishan of the findings of fact but of course what they're referring to is federal civil procedure fifty two a one when you have a final judgment fifty two  makes very clear that on a temporary on a motion like this temporary restraining order there's no need for those formal findings like if you want to go back and have a trial with full discovery and so forth you come back to what you raised at the beginning congress has been clear about who's authorized and force the federal civil immigration laws and in fact the county now disavows the authority to rely upon an i two hundred they count he says all they did was submitted notification but you can't understate that this was not a notification this was an immigration hold placed on the g l roster pursuant to washington state law which requires them to list the cause of confinement the county is now trying to say that the district court erred in in denying the fact in a not accepting their novel interpretation of what immigration hold is but certainly there is facts in the record that permit the district court to come to the conclusions that yes mr roach the scientists which always at imminent risk of suffering irreparable harm absent the court's interference and the final point i make allows for injunctive relief so he was able to say don't don't make me wait until they've held on to me for three months or held on to me for a few days after i posted bell make sure that i can have the opportunity to post bell and then if fact we're very concerned that the scope of t r o is not limited to mr sanchez or sure and we've been very deferential to judgment dozes apparent intent behind a t r o to preclude it from allowing us to do any kind of  t r o then ok so i mean that's what i guess i don't know they were going there because i guess i'd had the same impression mootness was off the table and i hadn't really thought about it but if if would you have an objection if that's the route we took including vacating the t r o you know i'd appreciate your honors if you would give us a little bit of the ninth circuit's best to understand your target here but no you're right i don't know what war we could we could hope to achieve other th saying you very much thank you thank you to all counsel for your helpful arguments in this case the case just argued that made it four decision by the court that completes our calendar for this morning and for the week we aren't turn