galarza for three days without a warrant a court order or any process based on an immigration detainer that lacked probable cause that is undisputed the high county does not argue that mr glasses detention nothing to do with issuing that that's why the detainer was issued from ice to the prison it was a request it's clear that that immigration detainers our request and not orders and that's that's clear because of the tenth amendment that's right and what is a constitutional issue well there are two constitutional violations first the fourth amendment violation he was detained on the immigration detainer that's not without that's right and at the time when he posted bail the the basis for his state arrest was resolved he should have been released from the state from his state because you're saying at that point the prison was required to do its own investigation hearing to determine whether you say lehigh county the only involve the county i see is that they operate the prison but many of us that they have to make the prison here has to make a determination as to whether ice had probable cause to issue to detain or actually no your honor we're not asking that the county to second guess isis determination there was nothing to second guess here they detain or simply said it at joint appendix one o five they detain or says ice has initiated an galarza is an alien who is subject to remove all the initiation of an investigation your honor is not probable cause you're saying that that the prison had to determine whether but the question is they have to look at what ice did and judge it and give your client an opportunity to be heard on it well no your honor we again we do not believe that lehigh county had an obligation or should have been involved in second guessing any determination about the same question along are saying what did the county do that was wrong well the county treated this ice detainer as a basis for warrantless detention three days of w byrd be allegheny county that when two jurisdictions are involved in making an arrest or requesting jurisdiction and in executing jurisdiction if the requesting jurisdiction didn't have probable cause the arrest is unlawful are so you and your but your point is that at some point the county itself should have conducted some sort of reasonable basis here no your honor the county this is not a warrant what and it is not what did the county do wrong that the county should have let him go on his bail your honor this is not this is not for a different reason the balance was posted on the criminal offense that's right i used to hate you know or was because they were doing an painter is not a command it's only a request from the united states government and he has already posted bail on the underlying criminal charge there was no basis to hold him at all that's right there was no invalidated that the statute is invalid we're simply arguing that the district court's interpretation of this regulation which no federal court i mean i don't know federal court had ever found that regulation to be mandatory for george carlin or do you judge how one makes a very good point what difference does it make here because there doesn't seem to be any of how an articulation at least to me of what the county did wrong other than to do it county did wrong here your honor and again this is a milkman so we're arguing about the cost the counties policy or custom of treating ice to ten years as a basis for detention there are two things that make the county's policy or custom deliberately indifferent to the risk of unlawful detentions like m number one this detain or form as a as a note it does not purport to be based on probable cause it is based on a near the assertion of investigative interest and that has been clearly established not to satisfy the fourth amendment in the criminal cont though the supreme court decided in prince he presses united states in one thousand nine hundred seven that the federal government cannot commandeer states or their political subdivisions to administer and force a federal program that's clearly established now a cast doubt on your theory because should emphasize that this court never has invalidated federal law based on anti commandeering principles well your honor prince invalidated a portion of the brady handgun violence let you think i'm let me just put it this way speaking only for myself i think those other defendants were quite right to settle here let me just leave it that way what we're left with the county who operated the prison and you seem to a lot of judges you seem to be say that the prison had to do something that's right and that how can the state or local office or be expected to use their judgment as to whether or not there's probable cause or reason to detain this person when the federal government tells them and the federal government is the expert in immigration local officials don't really have any ice knows what's going on in immigration and the federal government tells local people to hold someone one of the local people supposed to do at that point there we see being uk and the word from the point of this point in your brief is that federal government cannot under any circumstances compel local government to do its bidding that's absolutely right your honor that's absent and in this case the federal government cannot tell the high county that i background investigations in order to determine whether somebody's that's right and what can't force local law enforcement officials to do its work well that's what you ran just a few years you're saying that you're asking us to have there's not the  going on the west face of the detainers it was a request that's right before they reject the request which is what you say they should have done here what what would you have had the do before they could honor the request what would you have had t fourth is there is an order to remove all we're not arguing about those other three check boxes whether a county chooses to detain someone on those other three check boxes or not that's not in front of them or you're saying all they have reason to hold them for an investigation that's right and there was no it how are they going to determine that without having an earring and doing it as a geisha into the basis that i had to make that request they don't need to do any investigation there's no assertion of probable us thank you for your detain or we're just going to ignore it we don't have we don't have any space in our prisons we don't want to pay for your detention what if it's said that it certainly could and there are many jurisdictions that say that for example in this circuit newark new jersey the police department has a written policy whereby they will accept ice detainers they will not treat them as a basis for detention without more but they will communicate with ice so they'll share information with ice to facilitate ice taking custody of an individual if if i strews it to do so but they won't act as a jailer for ice and that is is newark's that's within new york's discretion that course and i just settled here until i mean everybody you settled out with you except the county that's right you know it's right your honor and there are many jurisdictions around the country that do that the state of connecticut the state of california champagne county illinois similar to me to newark has a sheriff's department policy you know what do they do before they call it on or what do they have to do before they go out on your own are all the county has to do to avoid liability is to not have a policy or custom of deliberate indifference to whether it's detaining people without probable cause or they have to go back to ice well your honor on the face of the detainer form there is a business our phone number and an after hours phone number at the very least the county should have told me  of why he was being detained they didn't tell him why and what if it were if they had to make a probable cause determination i'm sorry ron what if the county had to make a probable cause of this or i guess the probable cause determination would hinge on my name is thomas caffrey and i'm here on behalf of the high county judge i think one of the important points that i'd like to make from the outset is that it is not mr goh lars's claim that t detainer violates the constitution specifically the tenth amendment it's not mr goh lars's claim that section two eighty seven point seven of the code of federal regulations enforcing a federal regulatory regime prints the prince case says that i acknowledge that the problem is that's not the claim made in this case and if you notice judge gardner doesn't talk about the constitutionality of this regulation he doesn't talk about the prince case he doesn't refer to be anti comma he doesn't but he does say that he uses the word shower and he says that the county had to hold judge gardner interprets that regulation as the county interprets it that it's a commandment to tell you prince harry says that's not so the well first of all the prince case doesn't say anything about this federal regulation of the ills with the brady act don't know that that's true but it's cited the tenth amendment the tenth amendment applies here here and there and it applies just may very well apply here also well i guess the point i'm trying to make judge is very fundamental if mr galarza wished to order is that it's hate or statute how could we possibly affirm that this recorded this case they detain someone when there was no order from the federal government concerning the tire there was just this ambiguous request well respectfully judge i don't i don't agree that that detainer is ambiguous i think the language of two eighty seven point seven is clear it does not refer to a detain or as a request to detain that language is found nowhere in that regulation it's explicit at the federal government cannot comedy or someone to do something which is unconstitutional how could you possibly state that this is a legitimate holding of someone when there no order saying that he be held i guess what i'm saying is this judge the issue of the constitutionality of the state of the regulation is not before the court it's not before the court the claim that the claims in this detainer is issued the local state or federal agency then holding the individual shall maintain custody i think that's wrong i think that the word child means you have to do this but karen i think is pointing out no the the federal government cannot obligate you to do that so it's in a sense advisory diskette discretionary it is only a request well i  don't know how else to argue with judge except to say that maybe you should pick up the thing i suggested way that that i address and i prepare for argument is based upon what the claims were made by the plaintiff in the core polow have the district court addressed address those claims and again you've asked me several times now about the prince case and whether the federal government can command a local official to take action on behalf of the federal government i know the prince case says that but that was not a claim made by the  case i consider that claim irrelevant to the resolution of this case so what authority do you have to hold someone when there is no order there's nothing except the statement by the federal government that you should take in what  authority do you have besides that statement from the federal government well i think there are plenty of federal regulations that are inactive pursuant to statutory authority just like here that command local governments to take certain action i don't think this is any different than many other fed regulations we need to remember that this was a regulation that was promulgated by the ins pursuant to the amendments made to the ins in one nine hundred eighty seven this this has the effect of law so your position is that if the government makes every quest which is clearly unconstitutional that regardless the state must or a part of the state must hear to that request well i can't answer that question because i don't agree with the premise of your question you're saying that if we acknowledge that it's unconstitutional we don't acknowledge that it's unconstitutional you don't acknowledge that holding someone when there is no order or probable cause to hold them is unconstitutional well what i'm sanction i was a set no no to answer the question you acknowledge that holding someone when there is no order from a court or or probable cause hearing to hold him that such as a detainer is such a detaining of a person is constitutional i don't know the answer to that oh if it is so basic i you know well  that there are two ways of looking at a statute that we try and look at it so as not to make the statute or the regulation unconstitutional if it's if it's determined to be with us we the courts are prone to look at it so as to state that it is not unconstitutional in other words resorts tend to try and save legislation and regulations how we were to look at this and and consume and say at best it's ambiguous then we have to look at it and say well we don't want to make it unconstitutional well i'm not sure i'm following you judge where were you going with that well because i do not unconstitutional we have to say that you have no right to hold the person because under basic law you can't hold someone unless there's an order of a court or a probable cause hearing if it's not if it's not if it's interpreted not to be a right man and it was an eight or someone being held when there's been no probable cause hearing of any problem that he's guilty  or any order from a court so how is your whole thing about person legal well it could perhaps be unconstitutional then judge it could be well if you're if you're if you're if that's your position then you can help someone is correct let's say it is a command from the federal government yes how is that to me in a constitutional command and how does not run against it at the commandeering concepts that but fred our government cannot tell the state to jump through a hoop especially in a constitutional who well judge again to answer in the same way that i've answered it before that issue was not even addressed by the district court below because the issue of the anti commandeering doctrine is is say this judge and i say this respectfully i don't think you can decide an issue that's not before you can let me ask you this on our take it a slightly different way i have quite a few statements that have made by immigration and  customs enforcement ice quite a few statements respecting their detainers and i have yet to come across any statement that says that local governments are obligated or mandated to hold somebody on the basis of our detainer i have many statements to say just the opposite so let me ask you do you have any statement that has been made by ice that when we issue a detainer you must hold that person this is what i have well to answer those one by one first of all i'm not sure that there are any pronouncements made by ice or its predecessor before two thousand and ten concerning whether it's a request to detain or whether it's a command maybe they didn't make any pronouncement because it was assumed that was a command if if if you recall from reading the material this issue has only arisen recently why i don't know because of a change in the administration because of the spate of lawsuits have been filed surrounding the regulation but there's no question that that detainer form which indicates to the local prison official you shell detain is the same detain or that would the same detain or form that was in effect from one at least one nine hundred ninety seven until two thousand  thousand and ten rolls around and suddenly ice decides to change the way it looks at this regulation in this town or form out of the blue well there's no question that the that ice now is really a mayor coppa there for political purposes been receiving this detainer for twenty twenty five signifies what that person i really do but my sympathy cannot over come what the law is well my answer is no one has told that prison official no court said that the basic question is whether or not not what we're not doing are qualified of unit county cannot have qualified all the of the visual well judge the present let's talk about the prince case for a second that was a case in which at the district court level there was a complaint filed that said what the brady act is unconstitutional because it violates the anti commandeering doctrine i'm sure other claims were made what happened they litigated that completely in the district court that issue was on the table for discussion  disposition it went up to the appellate court it went up to the supreme court the supreme court made the decision that it did the issue that you've been peppering me with about today has not been on the table in this case and what you're talking about doing is taking an issue and deciding the case based upon your decision on that issue when it's never been part of the case until now several party whether it's part of the case we don't have any we don't have the federal government we don't have ice we don't have anybody for us they will settle out i mean i don't they did because they were the points at fault here well they were the ones at fault but exclude yourself you have to acknowledge that you helped someone on the command of a race by what you you help someone on a trip and of the federal government when that holding was without probable cause no one gave you any probable cause and no one gave you an order allowing you to hold out her let me just address because we talked many times today about whether there's been probable cause if you go to the statue of which which the regulation implements the regulation provide standards and procedures to implement section two eighty seven of the  section two eighty seven of the ion and talks about the prerequisites before you can issue a detainer one of them is there is an arrest for a violation of a controlled substance law secondly an immigration official has reasonable suspicion has reason to believe that this person is an alien that terminology has been interpreted by many courts to mean probable cause mr castro is hypothetically speaking if we were to redraft this detention provision and we were to take the shallow provision out and simply make this or request as apparently the the federal government has has stated is this is  policy would you have grounds to hold the sticklers or county prison i would say probably not i don't there's no bones about the fact of the count i guess you know that helps me understand your position better because you're saying that the county based its decision on word shall and it said in other words it was obligatory that you hold them because that's been our position from the beginning judge i don't i don't  addressed whether there are provisions constitutional i don't believe so and in fact you know something that any court has decided to constitutionality i am not aware of any case of this dress at issue in fact one of the district court cases that i cited i believe it was a court in tennessee the same arguments were made in that case concerning the anti commandeering doctrine in the court said it's relevant because it's not part of the case think you very well thank you judge of this  detainees well your honor at this issue was absolutely raised at the district court we in our complaint at paragraph ninety one we specifically raise prince and we argue that the immigration detainer must be a request as a matter of so this was absolutely raised below i think you know part part maybe it's part of mr carter's argument and some of the questions that were asked by judge perry that there seems to be something inherently unfair about posing liability on the county when the county you know he sort of the end if you do and damned if you don't the detainer says you may hold but then it's as you show it so it's it seems to be ambiguous in the county was doing what he thought it should do can you law more fundamentally your honor our argument is not our argument is based on lehigh county is deliberate indifference and and that's based on two facts first the fact that the detainer is are they live could they be found liable where they have a command for the federal government which is ambiguous and they proceed to go along with the federal government the experts there the county there was nothing about immigration are going to be filed with no defense no your honor not at all we are not arguing that the court should strike the regulation we're not even arguing the court should interpret the regulation in a way that the federal government doesn't interpret it this is the federal government interprets the regulation as a request and every other federal court that had determined that had looked at this in other contexts albeit before judge and i back to the  that's right well your honor we engaged in limited don't discover e we deposed the director of the department of corrections at lehigh county and we pled our complaint based on that limited discovery and our and the facts that we have reason to believe are true this the this is a motion to dismiss state your honor our facts must be accepted as true at this coming off a sixty page opinion that the the district judge put every fact in the light most favorable to you into that opinion important to note we're not arguing that the did that the regulation should be struck were offering a reading of the rate regulation that would save it from unconstitutionality and that is consistent with the view that every single federal court before judge gardner had taken at its request now tenth amendment argument and the first one real skewers was based on judge gardner's decision in this case the second one was based on real security so this is just a these are echoes of the district courts mistake in this case the court must correct th