Case 3:18-cv-08075-DGC-BSB Document 41 Filed 05/19/18 Page 1 of 37

1 CHAD A. READLER
2 Acting Assistant Attorney General Civil Division
3 WILLIAM C. PEACHEY
4 Director EREZ REUVENI
5 Assistant Director
6 FRANCESCA GENOVA LAUREN C. BINGHAM, Fl. Bar No. 105745
7 Trial Attorneys
8 United States Department of Justice Civil Division
9 Office of Immigration Litigation
10 District Court Section P.O. Box 868, Ben Franklin Station
11 Washington, DC 20044
12 (202) 616-4458; (202) 305-7000 (facsimile) lauren.c.bingham@usdoj.gov
13 Attorneys for the United States

14

UNITED STATES DISTRICT COURT

DISTRICT OF ARIZONA

15

Guillermo Tenorio-Serrano, as an individual, 16 and on behalf of others similarly situated,

17
Plaintiff,
18

Case No. 3:18-cv-8075-DGC-BSB

v.
19

STATEMENT OF INTEREST OF THE

UNITED STATES 20 James Driscoll, Coconino County Sheriff;

Matt Figuero, Jail Commander of the

21 Coconino County Jail; Matt Ryan, Member

22 of the Board of Directors of the Coconino County Jail District; Jim Parks, Member of
23 the Board of Directors of the Coconino

24 County Jail District; Elizabeth Archuleta, Member of the Board of Directors of the
25 Coconino County Jail District; Art Babbott,

26 Member of the Board of Directors of the Coconino County Jail District,
27
Defendants.
28

Case 3:18-cv-08075-DGC-BSB Document 41 Filed 05/19/18 Page 2 of 37

1

TABLE OF CONTENTS

2
3 INTRODUCTION ............................................................................................................1
4 BACKGROUND...............................................................................................................2

5

I. Legal Background ......................................................................................2

6

II. Factual Background ...................................................................................7

7
ARGUMENT
8

9

I. Plaintiff Has No Grounds for Challenging the Legality of the County’s

Cooperation with ICE because Plaintiff is not Subject to Any Restraint

10

Caused by an ICE Detainer or Warrant...................................................10

11
II. Cooperation with ICE Detainers Is Consistent with Federal Statutory

12

Law ...............................................................................................................12

13

III. Cooperation with ICE Detainers and Warrants Is Consistent with

14

Arizona Law ................................................................................................17

15

IV. Cooperation with ICE Detainers Is Consistent with the U.S. Constitution

16

and the Arizona Constitution.....................................................................22

17

V. Cooperation with ICE Detainers is consistent with the Due Process

18

Clause ...........................................................................................................29

19

VI. Cooperation with an IGSA Is Consistent with Federal Law ..................32

20
CONCLUSION ...............................................................................................................34
21

22

23

24

25

26

27

28

ii

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1

INTRODUCTION

2

The United States respectfully submits this statement of interest in accordance with

3 federal statutes that authorize the United States Department of Justice “to attend to the
4
5 interests of the United States” by “argu[ing] any case in a court of the United States in

6 which the United States is interested.” 28 U.S.C. §§ 517, 518.1

7

This memorandum of law explains why and in what circumstances Coconino

8
County’s (the County) cooperation with federal immigration detainers and federal
9

10 immigration arrest warrants issued by U.S. Immigration and Customs Enforcement (ICE),

11 a component of DHS responsible for immigration enforcement in the interior of the
12
country, is lawful. A detainer asks local law enforcement to aid federal immigration-
13
14 enforcement efforts by notifying ICE prior to the release of an individual for whom there

15 is probable cause to believe that he or she is a removable alien, and maintaining custody
16
of that alien briefly (up to 48 hours beyond when the alien would otherwise be released)
17
18 so that ICE can take custody of the alien in an orderly way. Without such cooperation,

19 removable aliens, including criminal aliens, would be released into local communities,

20

21 1 Under 28 U.S.C. § 517, “[t]he Solicitor General, or any officer of the Department of 22 Justice, may be sent by the Attorney General to any State or district in the United States to
attend to the interests of the United States in a suit pending in a court of the United States, 23 or in a court of a State, or to attend to any other interest of the United States.” Under 24 8 U.S.C. § 518, “[w]hen the Attorney General considers it in the interests of the United
States, he may personally conduct and argue any case in a court of the United States in 25 which the United States is interested, or he may direct the Solicitor General or any officer 26 of the Department of Justice to do so.” These statutes provide a mechanism for the United
States to submit its views in cases in which it is not a party, see, e.g., Application of Blondin 27 v. Dubois, 78 F. Supp. 2d 283, 288 n.4 (S.D.N.Y. 2000), and is not intended to “subject[] 28 it to the general jurisdiction of this Court,” Flatow v. Islamic Republic of Iran, 305 F.3d
1249, 1252-53 & n.5 (D.C. Cir. 2002).

1

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1 where it is harder and more dangerous for ICE to take custody of them and where they

2 may commit more crimes. Furthermore, under an intergovernmental service agreement

3 (IGSA) between the County and the United States Marshals Service, on which ICE is an
4
5 authorized rider, the County assists ICE, at federal request and cost, by physically housing

6 detainees ICE has arrested, though the detainees remain in federal custody.

7

ICE’s use of—and local cooperation with—detainers and administrative arrest

8
warrants is consistent with federal and Arizona law. Federal statutes authorize ICE to use
9

10 detainers and warrants, and allow States and localities to cooperate with them. Arizona

11 law affirmatively permits such cooperation with detainers. And such cooperation is

12
consistent with the U.S. Constitution and the Arizona Constitution.
13

14

In light of these points, and as explained below, the motion for a temporary

15 restraining order should be denied and this case should be dismissed.

16
BACKGROUND
17

18

I. Legal Background.

19

The federal government has “broad, undoubted power over the subject of

20
immigration and the status of aliens.” Arizona v. United States, 567 U.S. 387, 394 (2012).
21
22 This includes authority to interview, arrest, and detain removable aliens. See, e.g., 8 U.S.C.

23 § 1226(a) (Secretary of Homeland Security may arrest and detain aliens pending removal

24
decision based on an administrative arrest warrant); id. § 1226(c)(1) (Secretary “shall take
25
26 into custody” aliens who have committed certain crimes when “released”); id.

27 § 1231(a)(1)(A), (2) (Secretary may detain and remove aliens ordered removed); id.

28

2

Case 3:18-cv-08075-DGC-BSB Document 41 Filed 05/19/18 Page 5 of 37

1 § 1357(a)(1), (2) (authorizing certain warrantless interrogations and arrests).2

2

In enforcing the immigration laws against removable aliens, the federal government

3 works closely with state and local governments. The Immigration and Nationality Act
4
5 (INA), 8 U.S.C. § 1101 et seq., contemplates these cooperative efforts, which are critical

6 to enabling the federal government to identify and remove the hundreds of thousands of

7 aliens who violate immigration laws each year.
8
First, the INA authorizes the Department of Homeland Security (DHS) to enter into
9

10 cooperative agreements with States and localities, see 8 U.S.C. § 1357(g), also known as

11 287(g) agreements, under which state and local officers may, “subject to the direction and
12
supervision of the [Secretary],” id. § 1357(g)(3), perform the “functions of an immigration
13
14 officer in relation to the investigation, apprehension, or detention aliens.” Id. § 1357(g)(1).

15

Second, Congress has authorized DHS to enter into agreements, referred to as

16
IGSAs, with localities for the “housing, care, and security of persons detained by [DHS]
17

18 pursuant to Federal law.” Id. § 1103(a)(11)(A). Under these agreements, a detainee has

19 been arrested by ICE, and is in the legal custody of ICE, but ICE utilizes IGSA facility to

20
house the alien temporarily in a state or local facility. See, e.g., Roman v. Ashcroft, 340
21
22 F.3d 314, 320-21 (6th Cir. 2003). Until an immigration officer—or a state or local officer

23 who has been delegated immigration officer authority under a 287(g) agreement3—arrests

24

25 2 Following the Homeland Security Act of 2002, many references in the Immigration and
26 Nationality Act to the “Attorney General” are now read to mean the Secretary. Clark v. Suarez Martinez, 543 U.S. 371, 374 n.1 (2005).
27 3 The existence of an IGSA or one on which ICE is an authorized rider does not deputize
28 state law enforcement to unilaterally perform the functions of a federal immigration officer. Rather, it governs the housing, at federal request and cost, of federal detainees in state

3

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1 the detainee, the IGSA is not triggered, and the detainee remains in state custody.

2

Third, even without a formal 287(g) agreement or IGSA detention contract, States

3 and localities may “communicate with the [Secretary] regarding the immigration status of
4
5 any individual,” 8 U.S.C. § 1357(g)(10)(A); see also 8 U.S.C. § 1373(a), or “cooperate

6 with the [Secretary] in the identification, apprehension, detention, or removal of aliens not

7 lawfully present in the United States,” id. § 1357(g)(10)(B), when that cooperation is
8
pursuant to a “request, approval, or other instruction from the Federal Government,”
9

10 Arizona, 567 U.S. at 410. Such cooperation may include: “participat[ion] in a joint task

11 force with federal officers”; “provid[ing] operational support in executing a warrant”;
12
“allow[ing] federal immigration officials to gain access to detainees held in state facilities”;
13
14 “arrest[ing] an alien for being removable” at the federal government's request or direction;

15 and “responding to requests for information about when an alien will be released from their
16
custody.” Id. The INA permits such cooperation whether it is directed by state statute or is
17
18 implemented ad hoc by a local sheriff. See id. at 413. To comply with the Supremacy

19 Clause of the U.S. Constitution, which invalidates uninvited intrusions on the federal

20
government’s expansive immigration authority, a state or local government generally may
21
22 not cooperate beyond the scope of the federal government’s “request, approval, or other

23 instruction.” Arizona, 567 U.S. at 403.

24
States and localities frequently cooperate with federal immigration enforcement by
25

26

27 facilities. Therefore, an IGSA on which ICE is a rider is distinct from a 287(g) agreement.
28 Compare 8 U.S.C. § 1103(a)(11)(A) (authority for IGSAs), with id. § 1357(g)(1)–(9) (authority for 287(g) agreements).

4

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1 responding to federal requests for assistance, often contained in federal immigration

2 detainers, including those issued by ICE.4 An immigration detainer notifies a State or

3 locality that ICE intends to take custody of a removable alien who is detained in state or
4
5 local criminal custody, and asks the State or locality to cooperate with ICE in that effort.

6 A detainer asks a State or locality to cooperate in two main respects: (1) by providing ICE

7 with advance notification of the alien’s release date; and (2) by maintaining custody of the
8
alien for up to 48 hours, based on ICE’s determination that it has probable cause to believe
9

10 that the individual is a removable alien, until DHS can take custody. See 8 C.F.R.

11 § 287.7(a) (describing notification of release), (d) (describing request for continued

12
detention).5
13

14

DHS’s detainer form, Form I-247A, sets forth the basis for DHS’s determination

15 that it has probable cause to believe that the subject is a removable alien. The form states
16
that probable cause is based on: (1) a final order of removal against the alien; (2) the
17
18 pendency of removal proceedings against the alien; (3) biometric confirmation of the

19 alien’s identity and a records match in federal databases that indicate, by themselves or

20
with other reliable information, that the alien either lacks lawful immigration status or,
21
22 despite such status, is removable; or (4) the alien’s voluntary statements to an immigration

23 officer, or other reliable evidence that the alien either lacks lawful immigration status or,

24

25
26 4 U.S. Customs and Border Protection, another DHS component, also issues detainers in certain situations. 6 U.S.C. § 211. This brief addresses only ICE detainers. ICE always
27 requires probable cause to issue a detainer. 28 5 Statutes authorizing such action include 8 U.S.C. §§ 1103(a)(3), 1226(a) and (c), 1231(a),
and 1357(d).

5

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1 despite such status, is removable. Form I-247A at 1,

2 https://www.ice.gov/sites/default/files/documents/Document/2017/I-247A.pdf.

3

Specifically, the current detainer form requests that the State or locality “[m]aintain

4

5 custody of the alien for a period NOT TO EXCEED 48 HOURS beyond the time when

6 he/she would otherwise have been released from your custody.” Id. The form clarifies that

7 “[t]his detainer arises from DHS authorities and should not impact decisions about the
8
alien’s bail, rehabilitation, parole, release, diversion, custody classification, work, quarter
9

10 assignments, or other matters.” Id. The I-247A detainer form also says that the “alien must

11 be served with a copy of this form for the detainer to take effect,” and that the detainer
12
“should not impact,” among other things, “decisions about the alien’s bail” or “release.”
13
14 Id. The form encourages local law enforcement and the alien to contact ICE with “any

15 questions or concerns” about a detainer. Id.
16
As of April 2, 2017, ICE policy requires that detainers be accompanied by a signed
17
18 administrative warrant issued under 8 U.S.C. §§ 1226 or 1231(a). See ICE Policy No.

19 10074.2 ¶¶ 2.4, 2.5, https://www.ice.gov/detainer-policy. That warrant—either a Form I-

20
200, Warrant for Arrest of Alien (issued for aliens not yet subject to a removal order) or a
21
22 Form I-205, Warrant of Removal/Deportation (issued for aliens subject to a final removal

23 order)—is issued by an executive immigration officer and sets forth the basis for that

24
officer’s probable-cause determination. See 8 C.F.R. §§ 236.1, 241.2, 287.5 (describing
25
26 officers who may issue such warrants and when). It is this detainer and warrant that

27 authorize a county to detain an alien who is scheduled for release.

28

In sum, a state or local law enforcement agency generally may physically detain an

6

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1 alien suspected of being removable in three scenarios: (1) when the jurisdiction has a

2 287(g) agreement with ICE, under which “state and local officials become de facto

3 immigration officers, competent to act on their own initiative,” City of El Cenizo, Texas v.
4
5 Texas, --- F.3d ----, 2018 WL 2121427, *7 (5th Cir. May 8, 2018); (2) when the jurisdiction

6 has an IGSA with ICE, which authorizes local law enforcement to house aliens at the

7 request of ICE, after ICE takes physical custody of those aliens and then decides to book
8
those aliens into the local facility as ICE detainees, see Roman, 340 F.3d at 320-21; or
9

10 (3) when ICE requests cooperation from the law enforcement agency through a detainer,

11 accompanied by an administrative warrant, thereby permitting the locality to maintain
12
custody of the alien for up to 48 hours, consistent with federal law. See 8 U.S.C.
13
14 1357(g)(10)(B); see also id. at § 1357(g)(8) (providing that local law enforcement that

15 cooperates with federal immigration enforcement efforts under section 1357, including
16
1357(g)(10), does so “under color of federal authority” for purposes of liability and
17
18 immunity from suit). 8 U.S.C. § 1357(g)(8), (10)(B). Outside of such scenarios or absent a

19 “predicate federal request” to detain, see El Cenizo, 2018 WL 2121427, at *14, a local

20
government’s seizure based on suspected removability is unilateral, and thus in many cases
21
22 unlawful as state action preempted by federal law. Arizona, 567 U.S. at 410.

23

II. Factual Background.

24
Coconino County has a policy of cooperating with ICE’s immigration enforcement
25
26 efforts by honoring detainers. This policy, attached to Plaintiff’s First Amended Complaint

27 (ECF No. 18-1), provides as follows: “Detention Staff will notify the Detention and

28 Removal Office (DRO), a subsidiary of [ICE], immediately upon reasonable suspicion,

7

Case 3:18-cv-08075-DGC-BSB Document 41 Filed 05/19/18 Page 10 of 37
1 notification, or admission that an inmate in our facility is an alien and is unlawfully present 2 in the United States.” Id. If ICE determines that the person is in the country illegally, ICE 3 will fax an immigration detainer request, and an administrative warrant to be placed in the
4
5 inmate’s file. Id. The policy provides that the inmate will be allowed to post bond on his 6 local charges. Id. Once bond is posted, or charges have been adjudicated or dropped, the 7 County will call ICE. Id. The detainer “will remain in effect and the inmate will remain in
8
custody until”: (1) ICE notifies the county to remove or drop the detainer; (2) ICE takes
9
10 custody of the alien; or (3) the detainer period expires—which shall not exceed forty-eight 11 hours, including Saturdays, Sundays, and holidays. Id.
12
The County also has an IGSA with the United States Marshals Service, on which
13
14 ICE is an authorized rider and which accordingly allows ICE to house immigration 15 detainees in the Coconino County Correctional Facility (CCCF). First Am. Compl., ECF
16
No. 18 ¶ 131. Pursuant to ICE policy, if ICE wishes to be notified of the impending release
17
18 of an alien who ICE has probable cause to believe is removable from the United States, it 19 will lodge a detainer and administrative warrant with the alien’s state or local custodian.
20
See ICE Policy No. 10074.2 ¶¶ 2.3-2.7. Once grounds for state custody lapse—that is, once
21
22 the state charge does not authorize further detention—if ICE wants to take physical custody 23 of the alien, ICE will do so within 48 hours. Id. ¶ 2.7. If ICE then wishes to avail itself of
24
bed space at the county jail, as it is authorized to do under the IGSA, ICE may arrest the
25
26 alien after his state charges have been resolved or his bond posted, after which ICE will 27 book the alien back into the jail, subject to the IGSA, as a federal ICE detainee. See Exhibit 28 1, Declaration of Samantha Seaman, ¶¶ 8-10.
8

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1

According to the operative complaint, Plaintiff was arrested on December 1, 2017,

2 charged with four criminal counts related to driving under the influence, and booked into

3 the CCCF. ECF No. 18 ¶¶ 74-76. On December 12, 2017, ICE faxed to CCCF a detainer
4
5 and an administrative warrant of arrest for Plaintiff. Id. ¶ 83. To date, Plaintiff has chosen

6 not to post bond, because he believes he will be transferred to ICE custody for removal

7 proceedings if he does. ECF No. 18 at ¶¶ 121, 130. He thus remains in County custody on
8
state charges.
9

10

On April 30, 2018, Plaintiff filed his First Amended Complaint in this putative class

11 action, claiming that the County lacks authority to detain aliens beyond the point they are
12
entitled to release under state law. Plaintiff contends that the County’s policy violates the
13
14 Fourth and Fourteenth Amendments to the U.S. Constitution, and Article II, Section 8 of

15 the Arizona Constitution. ECF No. 18 ¶¶ 151-63. Plaintiff has moved for preliminary and
16
permanent injunctive relief, seeking to enjoin the 2017 Coconino Jail Policy as
17
18 unconstitutional. Id.

19

ARGUMENT

20
This Court should hold that a locality’s cooperation with ICE—either through ICE
21
22 detainers and arrest warrants or through housing an alien on behalf of ICE after ICE effects

23 an arrest pursuant to the IGSA—is lawful under federal and Arizona law and the state and

24
federal constitutions insofar as it complies with ICE policy. The Court should therefore
25
26 deny Plaintiff’s request for preliminary relief and dismiss this case.

27

To start, Plaintiff has no basis for challenging the County’s cooperation with ICE.

28 Plaintiff elected not to post bond, and remains in County custody. He thus is not now

9

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1 subject to any restraint caused by an ICE detainer or administrative warrant, and so lacks

2 any basis to challenge cooperation with a detainer and warrant by the County. Even if he

3 could challenge the County’s cooperation, his challenge would fail. To the extent that the
4
5 County cooperates with ICE detainers, such cooperation is fully consistent with federal and

6 Arizona law, the Fourth Amendment, and its Arizona analogue. Moreover, although the

7 County does not have a 287(g) agreement, it does have an IGSA with the United States
8
Marshals Service, which authorizes the County to temporarily house aliens in ICE custody
9

10 following ICE’s arrest of such aliens, and detention pursuant to such an agreement occurs

11 under ICE’s detention authority. Either form of cooperation is lawful. This court should
12
therefore conclude that the County acts lawfully when it cooperates with ICE pursuant to
13
14 a detainer request once Plaintiff posts bond or when it houses Plaintiff pursuant to the IGSA

15 once ICE arrests Plaintiff.

16

I. Plaintiff Has No Grounds for Challenging the Legality of the County’s

17

Cooperation with ICE because Plaintiff is not Subject to Any Restraint

18

Caused by an ICE Detainer or Warrant.

19

At the threshold, the Court should hold that an individual who has elected not to

20
post bond in order to avoid being transferred into federal immigration custody lacks any
21
22 basis to challenge the legality of cooperation with a federal immigration detainer or

23 warrant.

24
Plaintiff suggests that he may challenge his possible future detention based on the
25
26 detainer and warrant because “[a]n ICE detainer request has the effect of prolonging one’s

27 pre-trial detention in the local jail.” ECF No. 14 at 7; see also id. at 8-9. And the Ninth

28 Circuit has held that a plaintiff established Article III standing, at the motion-to-dismiss

10

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1 stage, by alleging that “but for [an] immigration detainer” he would have been able to

2 “post[] bail with the assistance of a bail bondsman,” even where the detainer only

3 “indirectly” caused the detention. Mendia v. Garcia, 768 F.3d 1011, 1013 (9th Cir. 2014).
4
5 But that does not help Plaintiff, because it is settled law that where an individual is in state

6 custody on state charges based on his own decision to not post bond, that individual lacks

7 any basis to challenge cooperation with federal detainer requests. That is because the mere
8
existence of a detainer does not itself cause any seizure, and any possible seizure based on
9

10 the detainer instead requires a further, intentional act. See Keil v. Spinella, No. 09-cv-3417,

11 2011 U.S. Dist. LEXIS 1075, *8-9 (W.D. Mo. Jan. 6, 2011) (“[D]etainer alone does not
12
cause imprisonment or a seizure by ICE. Rather, a seizure only occurs when the agency to
13
14 which the detainer was issued turns custody over to ICE.”); Nasious v. Two Unknown

15 B.I.C.E. Agents, 657 F. Supp. 2d 1218, 1223, 1225 (D. Colo. 2009), aff’d, 366 F. App’x
16
894 (10th Cir. 2010) (“Plaintiff’s detention was imposed by the state of Colorado based on
17
18 Plaintiff’s pending criminal charges; it was not imposed by or in any way impacted by the

19 ICE detainer,” and “could not, as a matter of law, constitute a restraint on or deprivation of

20
a liberty”). Plaintiff cannot manufacture standing by his refusing to post bond and thereby
21
22 prolonging his own stay in state custody—exactly what he complains about. ECF No. 14

23 at 7. See Clapper v. Amnesty Int'l U.S.A., 568 U.S. 398, 418, (2013) (“respondents' self-

24
inflicted injuries are not fairly traceable to the Government's purported activities,” and do
25
26 not give rise to standing.)

27

Indeed, a federal detainer request, without more, is “simply an administrative

28 mechanism that ensure[s] that upon the completion of his state criminal matter, [the alien]

11

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1 [will] be transferred to federal custody.” United States v. Juarez-Velasquez, 763 F.3d 430,

2 436 (5th Cir. 5014). Such requests “do not limit [the receiving agency’s] discretion” in any

3 way. Garcia v. Taylor, 40 F.3d 299, 303 (9th Cir. 1994). “[S]tate charges [remain] the
4
5 impetus for the entire duration of [any] pretrial detention” in such circumstances. Juarez-

6 Velasquez, 763 F.3d at 436. The Court should therefore conclude that Plaintiff’s election

7 to prolong his own state custody in order to avoid transfer to federal custody provides no
8
cognizable basis to prematurely challenge the legality of cooperation with federal
9

10 detainers.

11

II. Cooperation with ICE Detainers Is Consistent with Federal Statutory Law.

12
Even assuming Plaintiff’s challenge is justiciable, his claims fail. Plaintiff
13

14 challenges the County’s cooperation with ICE detainers pursuant to the County’s 2017

15 policy. The INA provides that state and local officers may “cooperate with the [Secretary]
16
in the identification, apprehension, detention, or removal of aliens not lawfully present in
17
18 the United States.” 8 U.S.C. § 1357(g)(10)(B). Such cooperation is consistent with the INA

19 if it is undertaken pursuant to a “request, approval, or other instruction from the Federal

20
Government” and follows the federal government’s directions. Arizona, 567 U.S. at 410.
21

22

Cooperation with a detainer satisfies that test. First, detainers are “request[s] . . .

23 from the Federal Government” to a State or locality to assist its efforts to detain a particular

24
alien, so complying with those requests is necessarily permissible cooperation at the federal
25
26 government’s “request, approval, or other instruction.” Id.; accord El Cenizo, 2018 WL

27 2121427, *14 (assistance with detainers occurs “only when there is already federal

28 direction—namely, an ICE-detainer request”) (emphasis added).

12

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1

Second, the INA authorizes DHS to request cooperation “either to hold the prisoner

2 for the agency or to notify the agency when release [] is imminent.” McLean v. Crabtree,

3 173 F.3d 1176, 1185 n.12 (9th Cir. 1998) (defining detainer as a request “to hold the
4
5 prisoner for the agency or to notify the agency when release of the prisoner is imminent”

6 and holding that DHS “has authority to lodge a detainer against a prisoner”); accord El

7 Cenizo, 2018 WL 2121427, *2 (similar). This detainer “authority,” formalized in 8 U.S.C.
8
§§ 1103(a)(3), 1226(a) and (c), 1231(a), and 1357(d), “predates the INA and has long been
9

10 viewed as implied by federal immigration enforcers’ authority to arrest those suspected of

11 being removable.” Santoyo v. United States, No. 16-855, 2017 WL 6033861, *3 (W.D.
12
Tex. Oct. 18, 2017); see United States v. Carlos Gomez-Robles, No. 17-730, 2017 WL
13
14 6558595, at *3 (D. Ariz. Nov. 28, 2017) (similar); Mendez v. United States, No. 02 CR 745

15 (RPP), 2009 WL 4857490, *1 n.2 (S.D.N.Y. Dec. 11, 2009) (similar); Comm. for
16
Immigrant Rights of Sonoma Cty. v. Cty. of Sonoma, 644 F. Supp. 2d 1177, 1199 (N.D.
17
18 Cal. 2009) (similar); see also Akande v. U.S. Marshals Serv., 659 F. App’x 681, 684 (2d

19 Cir. 2016) (“[T]he immigration detainer would appear . . . to justify an additional 48 hours

20
of detention beyond the expiration of the prisoner’s term.”); Rosario v. New York City, No.
21
22 12 Civ. 4795 (PAE), 2013 WL 20992547, *3 (S.D.N.Y. May 15, 2013) (noting the INA’s

23 “authority to detain [alien] under [a] detainer”).

24
Third, such cooperation is permitted even if the County lacks a formal 287(g)
25
26 agreement or does not satisfy the training and certification requirements that accompany

27 such agreements. As the Fifth Circuit recently explained, the INA, through section

28 1357(g)(10)(B), “indicates that Congress intended local cooperation without a formal

13

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1 agreement,” and without “a written agreement, training, and direct supervision by DHS . . .

2 in a range of key enforcement functions.” El Cenizo, 2018 WL 2121427, at *7. That is,

3 cooperation with immigration detainers is permitted and envisioned by the INA without
4
5 any of the formal training and certification requirements necessary for “state and local

6 officials [to] become de facto immigration officers, competent to act on their own

7 initiative” under a formal 287(g) agreement. Id. And as a prior panel (at the stay stage) of
8
the Fifth Circuit held with respect to Texas law requiring cooperation with immigration
9

10 detainers, “nothing in Arizona v. United States, 567 U.S. 387 (2012), prohibits such

11 assistance” and “8 U.S.C. § 1357(g), provides for such assistance.” El Cenizo, 2017 WL

12
4250186, at *1-2.
13

14

Indeed, in Arizona v. United States, involving 8 U.S.C. § 1357(g), the U.S. Supreme

15 Court did not purport to define the outer limits of cooperation permitted by section
16
1357(g)(10). Instead, it listed a number of examples of permissible cooperation which
17
18 states and localities may partake in without the training and certification requirements of a

19 formal agreement under 8 U.S.C. § 1357(g)(1), including “arrest[ing] an alien for being

20
removable” if that arrest is made in response to a “request” from the federal government.
21
22 Arizona, 567 U.S. at 410. Arizona distinguished between such a scenario—which is

23 permissible under section 1357(g)(10)(B)—and the scenario authorized by the law at issue

24
in Arizona: “unilateral state action to detain . . . aliens in custody for possible unlawful
25
26 presence without federal direction and supervision” and without any federal “request” to

27 do so. Id. at 410, 413; accord El Cenizo, 2018 WL 2121427, *7 (state law requiring

28 cooperation with federal detainers “permit[s] no unilateral enforcement activity” because

14

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1 cooperation only occurs following “a predicate federal request for assistance”).6

2

Moreover, there is no requirement under the INA that a State or locality may

3 cooperate only if it has a formal cooperation agreement under 8 U.S.C. § 1357(g)(1) and
4
5 its officers are trained and certified under that provision. See 8 U.S.C. § 1357(g)(10)(B).

6 Indeed, the Fifth Circuit recently rejected that assertion, El Cenizo, 2018 WL 2121427, at

7 *7, and rightly so: section 1357(g)(10) says that no formal “agreement under” section
8
1357(g) is required for local officers to “cooperate with” federal immigration officers.
9

10 Formal agreements are quite different from informal cooperation. Under formal

11 agreements, local officers undergo the training necessary to “perform [the] function of an
12
immigration officer,” 8 U.S.C. § 1357(g)(1)—allowing them to enforce immigration law
13
14 without any triggering request from the federal government to do so. See Arizona, 567 U.S.

15 at 409-10 (explaining when DHS “grant[s] that authority to specific officers” through
16
formal agreement). Under section 1357(g)(10), officers not subject to such agreements may
17
18 still cooperate absent any formal training, so long as such cooperation is not “unilateral,”

19 but at the “request, approval, or other instruction from the Federal Government.” Id. at 410;

20
see United States v. Ovando-Garzo, 752 F.3d 1161, 1164 (8th Cir. 2014) (argument to the
21
22 contrary is “meritless”). The County’s cooperation with federal immigration detainers thus

23 presumes that such cooperation will occur consistent with federal law, because a detainer

24

25 6 Given the request for assistance from the federal government through the detainer, the
26 Court need not address whether the County could unilaterally effect immigration arrests. See Gonzales v. Peoria, 722 F.2d 468, 474 (9th Cir. 1983), overruled on other grounds by
27 Hodgers-Durgin v. De La Vina, 199 F.3d 1037 (9th Cir. 1999) (suggesting federal law does
28 not preempt unilateral arrests for criminal immigration offenses by local law enforcement, but not addressing arrests at the request of the federal government like those at issue here).

15

Case 3:18-cv-08075-DGC-BSB Document 41 Filed 05/19/18 Page 18 of 37

1 “always requires a predicate federal request before local officers may detain aliens for the

2 additional 48 hours.” El Cenizo, 2018 WL 2121427, at *15 (emphasis added).

3

Cooperation is thus permitted irrespective of whether it is directed by a state statute

4

5 or by a local sheriff: in neither case does it exceed the bounds of the cooperation permitted

6 by Congress. See Arizona, 567 U.S. at 410, 413 (affirming state legislative mandate

7 “requiring state officials to contact ICE as a routine matter”). The only limitation is that
8
such local cooperation may not “authorize state and local officers to engage in []
9

10 enforcement activities as a general matter” without “any input from the Federal

11 Government.” Id. at 408, 410. While “unilateral decision[s] of state officers to arrest an
12
alien for being removable” are preempted, cooperation under a “request, approval, or other
13
14 instruction from the Federal Government” is not. Id. at 410. Courts have thus recognized

15 that federal law permits States and localities to cooperate, without formal training or
16
certification, with federal requests to detain a removable alien, and that such cooperation
17
18 is not preempted. See, e.g., El Cenizo, 2018 WL 1282035, at *6 (holding that “[s]tate action

19 under” state-law provision requiring local cooperation with federal immigration

20
enforcement does “not conflict with federal priorities or limit federal discretion [] because
21
22 it requires a predicate federal request,” and therefore “does not permit local officials to act

23 without federal direction and supervision”); Santos v. Frederick Cty. Bd. of Comm’rs, 725

24
F.3d 451, 467 (4th Cir. 2013) (detention by state officer lawful when “at ICE’s express
25
26 direction”); Ovando-Garzo, 752 F.3d at 1164 (cooperation without “written agreement” is

27 lawful if “not unilateral”); cf. Melendres v. Arpaio, 695 F.3d 990, 1000 (9th Cir. 2012)

28 (concluding that local officers not subject to a 287(g) agreement may not unilaterally seize

16

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1 aliens absent direction from the federal government).7

2

Federal statutory law thus permits the County’s cooperation with detainers because

3 that cooperation is not unilateral and occurs pursuant to a request or direction from the
4
5 federal government.

6 III. Cooperation with ICE Detainers and Warrants Is Consistent with Arizona Law.
7

8

Plaintiff argues that the County’s detention power is constrained by Arizona law.

9 ECF No. 14 at 3, 5-7. Plaintiff is incorrect: Arizona law authorizes cooperation with ICE

10
detainers.
11

12

Arizona, like every State, wields broad “police powers,” which are “an exercise of

13 the sovereign right of the Government to protect the lives, health, morals, comfort and
14
general welfare of the people.” Manigault v. Springs, 199 U.S. 473, 480 (1905). As the
15
16 Supreme Court has recognized, States did not give up their common-law police powers by

17 joining the Union. See Arizona, 567 U.S. at 400. The States’ status as separate sovereigns
18
means that they possess all residual powers not abridged or superseded by the federal
19
20 Constitution. Mayor of New York v. Miln, 36 U.S. (11 Pet.) 102, 139 (1838). This residual

21

22
7 One district court has found to the contrary, concluding that the INA does not allow states 23 and localities to cooperate with immigration detainer requests. See Lopez-Aguilar v.
24 Marion Cty. Sheriff's Dep’t, 296 F. Supp. 3d 959, 2017 WL 5634965 (S.D. Ind. 2017). That decision is contrary to the weight of authority concluding the INA authorizes and therefore
25 does not preempt cooperation with detainer requests, see supra 13-14 (collecting cases),
26 turns on a specific question of Indiana state law, does not involve, and therefore does not address, the current ICE policy at issue in this case, which requires that all detainers be
27 accompanied by federal administrative warrants, see ICE Policy No. 10074.2 ¶¶ 2.4, 2.5,
28 https://www.ice.gov/detainer-policy; 8 U.S.C. 1226(a), and is currently on appeal in any event. See Lopez-Aguilar v. Marion Cty. Sheriff's Dep’t, No. 18-1050 (7th Cir.).

17

Case 3:18-cv-08075-DGC-BSB Document 41 Filed 05/19/18 Page 20 of 37

1 authority exists regardless any statutory invocation or clarification of that authority by a

2 State’s legislature. See Sturges v. Crowninshield, 17 U.S. (4 Wheat.) 122, 193 (1819)

3 (Marshall, C.J.). Thus, absent evidence that it “was the clear and manifest purpose of
4
5 Congress to abridge [a State’s police] powers,” Arizona, 567 U.S. at 400, States and their

6 subdivisions retain whatever common-law police powers they had when joining the Union.

7 Id. Far from abridging state power, Congress has authorized cooperation with detainers
8
and federal immigration warrants through the INA. See 8 U.S.C. § 1357(g)(10)(B).
9

10

As to Arizona’s or its localities’ exercise of its police powers, there is no

11 requirement that, “before a state law enforcement officer may arrest a suspect for violating
12
federal immigration law, state law must affirmatively authorize the officer to do so.” United
13
14 States v. Santana-Garcia, 264 F.3d 1188, 1193–94 (10th Cir. 2001) (collecting cases).

15 Rather, the overwhelming consensus is that at common law, a State’s inherent police
16
powers are not diminished absent explicit legislative action cabining a state or local peace
17
18 officer’s arrest authority. See id.; United States v. Bowdach, 561 F.2d 1160, 1167-68 (5th

19 Cir. 1977) (state officers may make arrests based on federal statutes or arrest warrants

20
despite absence of state statute explicitly and specifically so permitting); United States v.
21
22 Janik, 723 F.2d 537, 548 (7th Cir. 1983) (recognizing state law enforcement officers’

23 implicit authority to arrest suspects for federal offenses, even though “no Illinois statute

24
explicitly authorized an Illinois officer to arrest”); cf. Marsh v. United States, 29 F.2d 172,
25
26 174 (2d Cir. 1928) (L. Hand, J.) (the fact that state statute governing arrest authority does

27 not explicitly authorize a specific arrest does not mean that arrest is not authorized, because

28 it is inappropriate to infer in such circumstances an intent to restrict pre-existing authority

18

Case 3:18-cv-08075-DGC-BSB Document 41 Filed 05/19/18 Page 21 of 37

1 to arrest for other offenses); see also Commonwealth v. Leet, 641 A.2d 299, 303 (Pa. 1994)

2 (holding common-law authority not abrogated absent explicit statutory provision to that

3 effect); Christopher v. Sussex Cty., 77 A.3d 951, 959 (Del. 2013) (similar); Dep’t of Pub.
4
5 Safety & Corr. Servs. v. Berg, 342 Md. 126, 137-39 (1996); Southern R. Co. v.

6 Mecklenburg County, 231 N.C. 148, 150-51 (1949) (similar).8 That is the law in Arizona

7 too. See Merrill v. Phelps, 84 P.2d 74, 76 (Ariz. 1938) (“The power exercised by the sheriff
8
under the common law still pertains to [the] sheriff, except in so far as it has been modified
9

10 by constitutional and statutory provisions.”) (emphasis added).

11

Pursuant to Arizona common law, sheriffs in particular retain broad residual

12
authority to cooperate with other federal and state authorities in the enforcement of their
13

14 laws, including the ability to effect writs of arrest both criminal and civil and detain

15 prisoners pursuant to outstanding warrants. Arizona common law permits the holding of
16
prisoners beyond the length of their sentence “to answer to other writs upon which [they
17
18 have] not been arrested.” 1 WALTER H. ANDERSON, TREATISE ON THE LAW OF SHERIFFS,

19 CORONERS, AND CONSTABLES § 146 (1941). The reasoning for this detainer authority is
20
clear: “It would be a useless and idle ceremony to discharge [a prisoner] and immediately
21
22 arrest him upon the other process held by the officer.”9 Id. These common-law duties have

23
24 8 One state’s judiciary has ruled to the contrary, holding that the State may not act on their common law police powers absent affirmative legislation activating those powers. See
25 Lunn v. Commonwealth, 477 Mass. 517, 528-33 (2017). Lunn represents the minority view, 26 rests on Massachusetts law, and conflicts with the authorities cited above.
9 Further, continuing to hold a criminal defendant is not the same thing as being arrested. 27 Under Arizona law, an arrest is in relevant part “made by an actual restraint of the person 28 to be arrested.” Ariz. Rev. Stat. § 13-3881. An arrest is “a process with a beginning and an
end.” State v. Barker, 253 P.3d 286, 287 (Ariz. Ct. App. 2011) (emphasis added).

19

Case 3:18-cv-08075-DGC-BSB Document 41 Filed 05/19/18 Page 22 of 37

1 existed throughout Arizona’s history, even as some provisions of Arizona law have been

2 codified. See Merrill, 84 P.2d at 76.

3

Far from abridging Sheriffs’ common-law authority, Arizona has done the opposite.

4

5 Arizona law does not withdraw Sheriffs' retained authority to cooperate with federal

6 enforcement, be it criminal or civil. Instead, it reaffirms it: by statute, “[n]o official or

7 agency of [Arizona] or a county, city, town or other political subdivision of this state may
8
limit or restrict the enforcement of federal immigration laws to less than the full extent
9
10 permitted by federal law.” Ariz. Rev. Stat. § 11-1051(A) (emphasis added). This law

11 explicitly prohibits any limitations on cooperation with federal immigration authorities,
12
including permissible cooperation with detainers, and implicitly rejects any notion that
13
14 Arizona has affirmatively instructed its sheriffs that they may not cooperate with requests

15 for assistance from the federal government.
16
In addition to this explicit command, Arizona has codified the common law arrest
17
18 authority to “to answer to other writs” into statute. “The provisions of [Arizona’s] statutes

19 on arrest are, for the most part, a codification of the common-law rules regarding the
20

21

22 “Custody,” meanwhile, is “restraint pursuant to an on-site arrest or court order,” demonstrating that custody comes after the arrest. Ariz. Rev. Stat. § 13-2501 (emphasis
23 added) (defining “custody” in the context of escape). Therefore, unless a peace officer
24 begins a period of physical confinement of the defendant, the officer has not executed an arrest. Plaintiff’s citation of statutes and a rule describing arrests is thus irrelevant to the
25 analysis of whether sheriffs may cooperate with ICE detainers. See Pl.’s Mot. for
26 Preliminary Injunction, ECF No. 14, at 17 (citing Ariz. Rev. Stat. § 13-3964, which concerns an “officer making [an] arrest,” the Uniform Criminal Extradition Act as codified
27 at Ariz. Rev. Stat. § 13-3841 et seq., concerning “the duty of the governor of this state to
28 have arrested” certain persons, and Ariz. R. Crim. P. 4.1, entitled “Procedure Upon Arrest”).

20

Case 3:18-cv-08075-DGC-BSB Document 41 Filed 05/19/18 Page 23 of 37

1 subject.” Adair v. Williams, 210 P. 853, 855 (Ariz. 1922). Those statutes recognize that:

2 (1) sheriffs may make an arrest based on “all process and orders regular on their face and

3 issued by competent authority,” including those issues pursuant to criminal or civil
4
5 authority, Ariz. Rev. Stat. § 11-447; (2) peace officers may arrest a person “by virtue of a

6 warrant,” id. § 13-3887; and (3) detention officers have the statutory authority to arrest

7 those who are already incarcerated in a jail facility pursuant to a warrant, id. § 13-3907.
8
Additionally, a sheriff has statutory authority to “keep in the county jail any prisoner
9

10 committed thereto by process or order issued under the authority of the United States.” Id.

11 § 31-122.10
12

13
10 To the extent Plaintiff suggests that a temporary detention premised on a detainer and

14 federal administrative warrant is somehow not a warrant because an officer effecting the

15 detention must “‘without unnecessary delay take the person arrested before the magistrate who issued the warrant,’” ECF No. 38 at 2 n.2 (quoting A.R.S. § 13-3897), he is mistaken.

16 This provision appears in Title 13 of the criminal code, and thus, by its own terms, refers

17

to arrests based on criminal warrants issued by judicial officers. It does not purport to limit the Sherriff’s authority to answer to other “writs,” civil or criminal, so long as they are

18 regular on their face. Regardless, an officer holding an individual under a detainer and

19

warrant does in fact take the person arrested before the magistrate who issued the warrant when ICE takes custody of the prisoner. See 8 U.S.C. § 1226(a). It is well-settled that the

20 term “magistrate” is not limited to judicial officers, but in fact encompasses any “public

civil officer, possessing such power—legislative, executive, or judicial—as the 21 government appointing him may ordain.” Shadwick v. City of Tampa, 407 U.S. 345, 349

22 (1972); see Compton v. State of Alabama, 214 U.S. 1, 7 (1909) (“the appellation of

magistrate is not confined to justices of the peace, and other persons, ejusdem generis, who 23 exercise general judicial powers; but it includes others whose duties are strictly executive”)

24 (emphasis added). Indeed, it has long been the case that federal immigration officials in the

Executive Branch may function as magistrates by issuing administrative warrants pursuant 25 to federal statutes authorizing them to do so. See, e.g., Abel v. United States, 362 U.S. 217,

26 234 (1960); accord Sherman v. U.S. Parole Comm’n, 502 F.3d 869, 876-80 (9th Cir. 2007)

(in immigration context, warrants may be issued “outside the scope of the Fourth 27 Amendment’s Warrant Clause”). Thus, even were Plaintiff correct that Arizona law

28 permits cooperation with a detainer and warrant only if the cooperating officer takes the prisoner before the magistrate who issued the warrant, that plainly will occur here if and

21

Case 3:18-cv-08075-DGC-BSB Document 41 Filed 05/19/18 Page 24 of 37

1

The United States’ issuance of a detainer request, accompanied by a federal warrant,

2 plainly encompasses an “order issued under the authority of the United States.” Likewise,

3 the detainer and federal arrest warrant are “process and orders regular on their face” that
4
5 are “issued by competent authority,” i.e., the United States under federal authorities

6 described above. See supra Section II. Arizona county authorities through the Sheriff

7 therefore have clear authorization to continue to hold persons already subject to state
8
authority pursuant to immigration detainers and warrants on behalf of the United States.11
9

10

Thus, if and when the County in fact honors the detainer ICE issued as to Plaintiff,

11 that cooperation with an ICE detainer, supported by a federal administrative warrant, is not
12
affirmatively forbidden, and, in fact, is authorized by Arizona common and statutory law.
13
14 See Ariz. Rev. Stat. §§ 11-1051(A), 31-122.

15 IV. Cooperation with ICE Detainers Is Consistent with the U.S. Constitution

16

and the Arizona Constitution.

17

Plaintiff alleges that cooperation with ICE detainers violates the Fourth and

18
Fourteenth Amendments to the United States Constitution, and Article II, Section 8 of the
19

20 Arizona Constitution, which provides that “No person shall be disturbed in his private

21

22
when Plaintiff actually posts bond and ICE takes custody of him. At that time, he may 23 challenge his custody or removal proceedings before the “magistrate,” i.e. ICE, as well as
24 the immigration courts. See 8 U.S.C. §§ 1226; 8 U.S.C. § 1229(b)(1); 8 C.F.R. §§ 236.1(c)(8), 236.1(d)(1), 287.3(d)
25 11 Indeed Ariz. Rev. Stat. § 11-447 actually provides that the sheriff "shall (emphasis)
26 execute process and orders regular on their face and issued by competent authority," even if there "may be [a] defect in the proceedings upon which they were issued." This
27 mandatory command is further evidence that Arizona has not abrogated Sheriffs common
28 law authority to effect writs and cooperate in executing arrests both criminal and civil on behalf of other sovereigns.

22

Case 3:18-cv-08075-DGC-BSB Document 41 Filed 05/19/18 Page 25 of 37

1 affairs, or his home invaded, without authority of law.” Am. Compl. ¶¶ 151-63. This is

2 meritless.

3

At the outset, Article II, Section 8 of the Arizona Constitution is frequently

4

5 interpreted co-extensively with the Fourth Amendment to the U.S. Constitution. “Article

6 2, Section 8 has historically been construed as imposing limits on search and seizure

7 consistent with the prohibitions of the Fourth Amendment.” State v. Juarez, 203 Ariz. 441,
8
445 (Ct. App. 2002), as amended (Oct. 25, 2002). See State v. Pelosi, 68 Ariz. 51, 57 (1948)
9

10 (Article 2, Section 8 “was adopted for the purpose of preserving the rights which the Fourth

11 Amendment to the Federal Constitution was intended to protect”). Thus, for ease of

12
reference, the United States will generally refer only to the Fourth Amendment.
13

14

Three points establish that local cooperation with detainers accords with both the

15 Fourth Amendment and its Arizona equivalent: (1) federal officials can constitutionally
16
arrest aliens under a federal administrative warrant (which accompanies each ICE
17
18 detainer); (2) the lawfulness of that practice does not change when local officials help

19 effectuate such an arrest at ICE’s request; and (3) local officials may constitutionally rely

20
upon federal officials’ probable-cause determinations.
21

22

First, the Fourth Amendment permits federal officers to make civil arrests of aliens

23 based on probable cause of removability contained in a detainer or administrative warrant.

24
To start, the “Fourth Amendment does not require warrants to be based on probable cause
25
26 of a crime, as opposed to a civil offense.” United States v. Phillips, 834 F.3d 1176, 1181

27 (11th Cir. 2016) (collecting examples, including bench warrants for civil contempt and

28 writs of replevin). Arrests may be premised on probable cause of any legal violation,

23

Case 3:18-cv-08075-DGC-BSB Document 41 Filed 05/19/18 Page 26 of 37

1 whether civil or criminal. See, e.g., El Cenizo, 2018 WL 2121427, *13 (collecting other

2 constitutionally valid examples, like Maag v. Wessler, 960 F.2d 773, 775-76 (9th Cir.

3 1991), including seizures of the mentally ill, those who pose a danger to themselves, and
4
5 juvenile runaways); United States ex rel. Randazzo v. Follette, 418 F.2d 1319, 1322 (2d

6 Cir. 1969) (holding that a parole violator warrant designated as “administrative” under New

7 York law was not subject to ordinary Fourth Amendment safeguards and thus did “not
8
depend upon a showing of probable cause” of a crime). Indeed, given that “[i]n determining
9

10 whether a search or seizure is unreasonable, [courts] begin with history,” including

11 “statutes and common law of the founding era,” Virginia v. Moore, 553 U.S. 164, 168
12
(2008), that understanding is especially settled in the immigration context. There is
13
14 “overwhelming historical legislative recognition of the propriety of administrative arrest[s]

15 for deportable aliens.” Abel v. United States, 362 U.S. 217, 233 (1960) (noting “impressive
16
historical evidence” of validity of “administrative deportation arrest from almost the
17
18 beginning of the Nation”). Therefore, aliens “may be arrested by administrative warrant

19 issued without order of a magistrate.” Lopez v. U.S. I.N.S., 758 F.2d 1390, 1393 (10th Cir.

20
1985).
21

22

Plaintiff does not contest that federal immigration officers can detain an alien based

23 on a civil administrative warrant attesting to probable cause of removability. Plaintiff does

24
suggest that Fourth Amendment problems arise when a state or local officer effects an
25
26 arrest based on probable cause of a civil—as opposed to a criminal—violation because a

27 local officer may continue an individual’s detention only if he has probable cause to believe

28 that person has “committed a criminal offense.” ECF No. 14 at 8. The authorities discussed

24

Case 3:18-cv-08075-DGC-BSB Document 41 Filed 05/19/18 Page 27 of 37

1 above refute that suggestion.12 Nor can it be squared with textbook “immigration law and

2 procedure; civil removal proceedings necessarily contemplate detention absent proof of

3 criminality.” El Cenizo, 2018 WL 1282035, *14; accord Demore v. Kim, 538 U.S. 510,
4
5 531 (2003) (upholding no-bail civil immigration detention against a Fifth Amendment Due

6 Process challenge); cf. Jennings v. Rodriguez, 138 S. Ct. 830, 846 (2018) (holding that

7 federal law “makes clear that detention of aliens [] must continue ‘pending a decision on
8
whether the alien is to be removed from the United States’”) (citing 8 U.S.C. § 1226).
9

10

Plaintiff also errs in contending that warrants accompanying detainers are

11 problematic because they are issued by an ICE official rather than “by a judicial officer.”
12
ECF No. 14 at 7. Given the civil context of federal immigration detainers, an executive
13
14 immigration officer can constitutionally make the necessary probable-cause determination.

15 “[L]egislation giving authority to the Attorney General or his delegate to arrest aliens
16
pending deportation proceedings under an administrative warrant, not a judicial warrant
17

18

19 12 Indeed, the district court cases on which Plaintiff relies for this interpretation (ECF No. 20 14 at 7-8) have since been rejected and their reasoning “disavow[ed]” by the Fifth Circuit.
El Cenizo, 2018 WL 2121427, *13 n.22 (“[W]e also disavow any district court decisions 21 that have suggested the Fourth Amendment requires probable cause of criminality in the 22 immigration context.”). See Mercado v. Dallas Cty., 229 F.Supp.3d 501, 512–13 (N.D.
Tex. 2017); Santoyo v. United States, No. 5:16-CV-855-OLG, 2017 WL 2896021 (W.D. 23 Tex. June 5, 2017). Plaintiff’s reliance on Ochoa v. Campbell, 266 F. Supp. 3d 1237 (E.D. 24 Wash. Nov. 28, 2017), ECF 14 at 9-10, is also misplaced. First, the decision on appeal has
been vacated as moot. See 716 F. App’x 741 (9th Cir. 2018). Second, Ochoa is 25 distinguishable on its facts because that case did not involve a detainer request, so that the 26 record lacked a sufficient basis from which jail officials could “understand that federal
authorities were requesting cooperation.” Ochoa, 266 F. Supp. 3d at 1256; see United 27 States v. Gomez-Robles, No. CR170730TUCCKJJR, 2017 WL 6558595, *5 (D. Ariz. Nov. 28 28, 2017), report and recommendation adopted, No. CR17730TUCCKJJM, 2017 WL
6554914 (D. Ariz. Dec. 22, 2017) (distinguishing Ochoa on this basis).

25

Case 3:18-cv-08075-DGC-BSB Document 41 Filed 05/19/18 Page 28 of 37
1 within the scope of the Fourth Amendment,” has existed “from almost the beginning of the
2 Nation.” Abel, 362 U.S. at 234. “It is undisputed that federal immigration officers may 3 seize aliens based on an administrative warrant attesting to probable cause of
4
5 removability.” El Cenizo, 2018 WL 2121427, *13; Sherman v. U.S. Parole Comm’n, 502 6 F.3d 869, 876-80 (9th Cir. 2007) (in immigration context, warrants may be issued “outside
7 the scope of the Fourth Amendment’s Warrant Clause”); United States v. Lucas, 499 F.3d
8
769, 776 (8th Cir 2007) (en banc) (plurality) (similar); see also cases cited supra at 22-23,
9
10 n.10 (explaining that a magistrate under the Fourth Amendment may be an Executive
11 official, including an ICE officer).13 So “it is not unconstitutional under the Fourth
12
Amendment for the Legislature to delegate a probable cause determination to an executive
13
14 officer, such as an ICE agent, rather than to an immigration, magistrate, or federal district
15 court judge.” Roy v. ICE, No. 13-4416, 2017 WL 2559616, *10 (C.D. Cal. June 12, 2017).
16
Second, because the Fourth Amendment allows federal immigration officers to
17
18 arrest and detain based on an administrative warrant attesting to probable cause of
19 removability, state and local officials can do the same when they act at the request or
20
direction of the federal government. The Fourth Amendment does not apply differently
21
22 when a local official rather than a federal official is arresting or detaining. “The Fourth
23 Amendment’s meaning [does] not change with local law enforcement practices.” Virginia,
24
25 13 It is for this reason that Plaintiff’s reliance on Ochoa v. Campbell, 266 F. Supp. 3d 1237, 26 1252 (E.D. Wash. 2017) and El Badrawi v. Dep't of Homeland Sec., 579 F. Supp. 2d 249,
276 (D. Conn. 2008), ECF no 38 at 2, n.2, is entirely misplaced. Both cases do not 27 acknowledge, let alone discuss, Abel and related cases explaining that federal Executive 28 officers may issue warrants without presentment to a judicial officer consistent with the
Fourth Amendment.
26

Case 3:18-cv-08075-DGC-BSB Document 41 Filed 05/19/18 Page 29 of 37

1 553 U.S. at 172. To hold otherwise would cause Fourth Amendment “protections [to] vary

2 if federal officers were not subject to the same statutory constraints as state officers.” Id.

3 at 176.

4

5

Thus, if a seizure is legal under the Fourth Amendment when a federal officer

6 effectuates it, then so too when a state or local officer does, even where state law does not

7 authorize the arrest. A police officer’s “violation of [state] law [in arresting an alien based
8
on a violation of federal immigration law] does not constitute a violation of the Fourth
9

10 Amendment.” Martinez-Medina v. Holder, 673 F.3d 1029, 1037 (9th Cir. 2011). And the

11 legality of an arrest made by a state officer is especially apparent where a local officer is
12
not just arresting for a federal offense, but doing so at and after the express request of the
13
14 federal government supported by a federal administrative warrant, and consistent with state

15 law authorizing compliance with federal detainers requesting such arrests. Under detainer
16
requests, County sheriff’s deputies do not act unilaterally—they act at ICE’s request,
17
18 within the parameters of ICE’s request. See El Cenizo, 2018 WL 2121427, *15 (“[T]he

19 ICE-detainer mandate, [] always requires a predicate federal request before local officers

20
may detain”); Santos, 725 F.3d at 467 (cooperation lawful when “at ICE’s express
21
22 direction”); Ovando-Garzo, 752 F.3d at 1164 (cooperation without “written agreement”

23 lawful if “not unilateral”); cf. Melendres, 695 F.3d at 1001 (detention of removable aliens

24
is unilateral absent a formal agreement or request for cooperation).

25

26

Third, arrests or detentions based on probable cause may lawfully be made where

27 the probable-cause determination is made by one official (here, a federal ICE officer) and

28 relied on by another official who serves under a different sovereign (here, a local official).

27

Case 3:18-cv-08075-DGC-BSB Document 41 Filed 05/19/18 Page 30 of 37

1 Put differently, state and local officers may rely on ICE’s findings of probable cause, as

2 articulated in a detainer and administrative warrant, to detain the subject of a detainer when

3 the federal government so requests. Where one officer obtains an arrest warrant based on
4
5 probable cause, other officers can make the arrest even if they are “unaware of the specific

6 facts that established probable cause.” United States v. Hensley, 469 U.S. 221, 231 (1985).

7 An officer may thus arrest someone even if he himself does not independently ascertain all
8
facts forming the basis to arrest, so long as “an officer (or team of officers), with direct
9

10 personal knowledge of all the facts necessary to give rise to reasonable suspicion or

11 probable cause, directs or requests that another officer, not previously involved in the
12
investigation, conduct a stop, search, or arrest.” United States v. Ramirez, 473 F.3d 1026,
13
14 1032-33 (9th Cir. 2007).

15

This rule of collective law-enforcement knowledge applies when “the

16
communication [is] between federal and state or local authorities,” 3 Wayne R. LaFave,
17

18 Search and Seizure § 3.5(b) (2016) (collecting cases), including when a state or local

19 officer arrests someone based upon probable cause from information received from an

20
immigration officer. See, e.g., El Cenizo, 2018 WL 2121427, *13 (“Compliance with an
21
22 ICE detainer [] constitutes a paradigmatic instance of the collective-knowledge doctrine,

23 where the detainer request itself provides the required communication between the

24
arresting officer and an officer who has knowledge of all the necessary facts.”); Mendoza
25
26 v. U.S. ICE, 849 F.3d 408, 419 (8th Cir. 2017) (“County employees . . . reasonably relied

27 on [ICE agent’s] probable cause determination for the detainer.”). And “an ICE-detainer

28 request evidences probable cause of removability in every instance.” El Cenizo, 2018 WL

28

Case 3:18-cv-08075-DGC-BSB Document 41 Filed 05/19/18 Page 31 of 37

1 2121427, *13.14

2

In sum, the Fourth Amendment allows local officials to detain aliens in response to

3 federal detainer requests when the United States presents probable cause of civil
4
5 removability through a detainer and arrest warrant.

6 V. Cooperation with ICE Detainers is consistent with the Due Process Clause.

7

While Plaintiff’s First Amended Complaint, ECF No. 18, alleges that the future

8
cooperation with an ICE detainer violates the due process component of the Fourteenth
9

10 Amendment, he does not mention the Fourteenth Amendment in his motion for preliminary

11

12 14 Decisions of other courts are in accord. See, e.g., Rojas v. Suffolk County Sheriff’s Office,

13 06316/2017, 2018 WL 1387058, *3 (N.Y. Sup. Ct. Mar. 16, 2018) (state official’s detention of inmate pursuant to I-247A and I-200 warrant issued by ICE was
14 constitutional); United States v. Gomez-Robles, No. CR170730TUCCKJJR, 2017 WL

15 6558595, *5 (D. Ariz. Nov. 28, 2017), report and recommendation adopted, No. CR17730TUCCKJJM, 2017 WL 6554914 (D. Ariz. Dec. 22, 2017) (finding no Fourth

16 Amendment violation based on probable-cause determination in I-247A form and I-200

17 warrant in context of motion for suppression in criminal case); Chery v. Sheriff of Nassau Cty., Index No. 8100/15, 2015 WL 13665005, *3-4 (Sup. Ct., Nassau Cty. 2015)

18 (addressing Form I-205 Warrant of Removal/Deportation, and holding that detainer

19 authorizes detention where it is “accompanied by either a Warrant for Arrest or a Final Order of Removal/Deportation,” which “does, in fact, provide respondent with lawful

20 authority to detain petitioners”); People v. Xirum, 993 N.Y.S.2d 627, 632 (Sup. Ct., N.Y.

21 Cty. 2014) (law enforcement may hold aliens for ICE, whom ICE has probable cause to believe are removable, as communicated through an administrative warrant, at ICE’s

22 request so long as the alien is “subject to a warrant for arrest or an order of removal or

23

deportation,” neither of which alleges that a crime has been committed). No case addressing the current ice policy of accompanying detainers with a warrant has found

24 cooperation with that policy to violate the fourth amendment and nine of the cases Plaintiff

25

cites in either brief in fact addresses that policy, but instead address policies no longer in place One state court has held to the contrary, but that decision is distinguishable on its

26 facts, because the locality in question in fact detained the individual in question far beyond

the time authorized by the detainer, which the Court determined was not authorized by 27 Colorado law. See Cisneros v. Elder, 2018CV30549, at *7-11 (Colo. District Court, El

28 Paso Cty., Mar. 19, 2018).

29

Case 3:18-cv-08075-DGC-BSB Document 41 Filed 05/19/18 Page 32 of 37

1 injunction. Compare First Am. Compl., at Counts I-III, with Motion at 5. But to the extent

2 that he is raising a claim under the Fourteenth Amendment, the claim is meritless.

3

First, where (as here) a party raises both Fourth and Fourteenth Amendment

4

5 challenges to the same nexus of events, the “independent” Fourteenth Amendment due

6 process claim collapses into the Fourth Amendment claim and cannot serve as a separate,

7 freestanding claim. See, e.g., Graham v. Connor, 490 U.S. 386, 395 (1989). Indeed, as the
8
Supreme Court has explained, “[i]f the complaint is that a form of legal process resulted in
9

10 pretrial detention unsupported by probable cause, then the right allegedly infringed lies in

11 the Fourth Amendment,” not the “Due Process Clause.” Manuel v. City of Joliet, 137 S.
12
Ct. 911, 919 (2017). Plaintiff’s putative Fourteenth Amendment claim thus adds nothing
13
14 to his meritless Fourth Amendment claim.

15

Second, a prerequisite to any due process claim, whether procedural or substantive,

16
is an assertion of a cognizable liberty interest—and Plaintiff has invoked no such interest
17

18 here. The mere existence of an “ICE detainer could not, as a matter of law, constitute a

19 restraint on or deprivation of a liberty interest upon which a due process violation could be

20
premised.” Nasious, 657 F. Supp. 2d at 1223. The lodging of any detainer generally has no
21
22 “immediate effect upon protected liberty interests,” because the subject of a detainer is “not

23 entitled to a hearing prior to the execution of the warrant or to compelled execution of the

24
warrant” on which the detainer relies. Heath v. U.S. Parole Comm’n., 788 F.2d 85, 91 (2d
25
26 Cir. 1986); see Escobar v. Holder, Civ. No. 09-3717 (PAM/JJK), 2010 WL 1389608, *4

27 (D. Minn. Mar. 9, 2010) (finding “no support for the proposition that” an alien “is entitled

28 to a hearing before immigration officials send [] a detainer”); see also Nasious 657 F. Supp.

30

Case 3:18-cv-08075-DGC-BSB Document 41 Filed 05/19/18 Page 33 of 37

1 2d at 1223; Keil, 2011 WL 43491, *8-9.

2

This is especially true in the immigration context. Removable aliens generally lack

3 any due process right to be free from detention pending resolution of their removal
4
5 proceedings until such detention becomes prolonged. Demore, 538 U.S. at 523. Until it

6 does, detention remains “a constitutionally valid aspect of the deportation process,” and

7 impinges on no cognizable liberty interest. Id. That is true whether the custodian of that
8
detention is the federal government or a State or locality. See, e.g., Themeus v. U.S. Dep’t
9

10 of Justice, 643 F. App’x 830, 832-33 (11th Cir. 2016). To be sure, aliens who are not

11 subject to mandatory detention may challenge their ongoing detention in their removal
12
proceedings and seek release on bond. See, e.g., 8 C.F.R. §§ 236.1(c)(8), 236.1(d)(1),
13
14 287.3(d). They may also seek to terminate removal proceedings based on a pre-removal

15 proceeding deprivation of fundamental rights, including Fourth Amendment rights.
16
Martinez-Medina, 673 F.3d at 1037. But the remedies available in removal proceedings do
17
18 not create a freestanding due process right to avoid immigration detention. See Demore,

19 538 U.S. at 523. And without such a cognizable liberty interest, there can be no procedural-

20
due-process violation in the first place. See Bd. of Regents v. Roth, 408 U.S. 564, 569–70,
21
22 (1972) (procedural protections of due process clause are triggered only when there is a

23 cognizable liberty or property interest at stake).

24
Finally, even if Plaintiff could make a freestanding due process claim and even if
25
26 Plaintiff’s detention affected a cognizable liberty interest, any due process claim would

27 still fail because he has been accorded procedural due process as a matter of law. Procedural

28 due process requires only notice and some opportunity to be heard before deprivation of a

31

Case 3:18-cv-08075-DGC-BSB Document 41 Filed 05/19/18 Page 34 of 37

1 protected interest. See Mathews v. Eldridge, 424 U.S. 319, 333 (1976). Detainers constitute

2 such notice. Those forms provide that the “alien must be served with a copy of this form

3 for the detainer to take effect,” encourage local law enforcement and the alien to contact
4
5 ICE’s Law Enforcement Support Center with “any questions or concerns” about a detainer

6 request, and clearly provide a means for contacting ICE to correct any errors. Form I-247A

7 at 1. No more is required. When a detainer is served, the recipient alien receives all the
8
notice and opportunity to be heard that he or she is due.
9

10

For these reasons, the U.S. and Arizona Constitutions allow local officials to detain

11 aliens in response to, and in accordance with, ICE detainers.

12
VI. Cooperation with an IGSA Is Consistent with Federal Law.
13

14

Finally, although the Court need not address the issue because there is no basis in

15 the record to conclude that Plaintiff is likely to be subject to the IGSA following any arrest
16
by ICE once he is released from County custody, to the extent that Plaintiff is ultimately
17
18 released upon posting bond and is booked back into ICE custody pursuant to the IGSA,

19 that cooperation would be lawful. If Plaintiff elects to post bond and is released, and ICE

20
wishes to assume custody, ICE would do so by effectuating an administrative arrest warrant
21
22 following release from state charges. Thereafter, one of two things might happen. ICE

23 could transport Plaintiff elsewhere. In that scenario, there would be no justiciable

24
complaint against Coconino County, because Plaintiff would not be housed in the County.
25
26 If, however, ICE were to invoke its authority pursuant to the IGSA to house Plaintiff in

27 County facilities, Plaintiff then would be detained as an ICE detainee subject to ICE’s

28 custody. The fact that, under the IGSA, Plaintiff would only return to county facilities after

32

Case 3:18-cv-08075-DGC-BSB Document 41 Filed 05/19/18 Page 35 of 37

1 ICE effects an arrest, means any detention of Plaintiff after release from state charges

2 would be premised on federal authority. See 8 U.S.C. § 1226(a).

3

The County’s contract to house ICE detainees is entered into pursuant to federal

4

5 law, which permits ICE to pay localities for the housing of aliens detained by ICE “pursuant

6 to Federal law under an agreement” with any locality for “detention services” including

7 “guaranteed bed space for person detained by the” federal government. Id.
8
§ 1103(a)(11)(A); see, e.g., Roman, 340 F.3d at 320-21 (addressing section 1103(a)(11)(A)
9

10 and holding that ICE is the proper defendant in habeas cases involving persons detained at

11 the request of ICE in state and local contract detention facilities); Henderson v. INS, 157
12
F.3d 106, 122 (2d Cir. 1998) (holding that although the warden of each detention facility
13
14 technically has day-to-day control over alien detainees, the INS District Director for the

15 district where a detention facility is located “has power over” such alien habeas corpus
16
petitioners); accord Braden v. 30th Judicial Cir. Ct. of Ky., 410 U.S. 484, 489 n.4 (1973)
17
18 (“Since the Alabama warden acts here as the agent of the Commonwealth of Kentucky in

19 holding the petitioner . . . we have no difficulty concluding that petitioner is ‘in

20
[Kentucky’s] custody’ . . . .”). Thus, if ICE arrests Plaintiff pursuant to its federal
21
22 administrative warrants and invokes its authority pursuant to the IGSA to house him in

23 County facilities, Plaintiff would be detained there as an ICE detainee subject to ICE’s

24
custody. See 8 U.S.C. § 1103(a)(11)(A). Thus, any County cooperation with the IGSA is
25
26 consistent with federal law.

27

28

33

Case 3:18-cv-08075-DGC-BSB Document 41 Filed 05/19/18 Page 36 of 37

1

CONCLUSION

2

Coconino County’s cooperation with federal immigration detainers, as well as

3 housing ICE detainees under the IGSA, is permitted by federal law. Thus, this Court should
4
5 deny Plaintiff’s motion for a temporary restraining order and injunctive relief, and should

6 dismiss this case.

7 Dated: May 19, 2018
8 9 10

Respectfully submitted,
CHAD A. READLER Acting Assistant Attorney General Civil Division

11

WILLIAM C. PEACHEY

12

Director, Office of Immigration Litigation

District Court Section
13

14

EREZ REUVENI

Assistant Director

15

16

FRANCESCA GENOVA

Trial Attorney

17

18

/s/ Lauren C. Bingham

Lauren C. Bingham, Fl. Bar No. 105745

19

Trial Attorney

20

United States Department of Justice

Civil Division

21

Office of Immigration Litigation

22

District Court Section

P.O. Box 868, Ben Franklin Station

23

Washington, DC 20044

24

(202) 616-4458; (202) 305-7000 (facsimile)

lauren.c.bingham@usdoj.gov

25

Attorneys for the United States
26

27

28

34

Case 3:18-cv-08075-DGC-BSB Document 41 Filed 05/19/18 Page 37 of 37

1

CERTIFICATE OF SERVICE

2

I hereby certify that on this 19th day of May, 2018, I electronically transmitted the

3 attached document to the Clerk's Office using the CM/ECF System, which will deliver a

4 copy to all counsel of record.

5

6

/s/ Lauren C. Bingham

7

Lauren C. Bingham, Fl. Bar No. 105745

Trial Attorney

8

United States Department of Justice

9

Civil Division

Office of Immigration Litigation

10

District Court Section

11

Attorney for the United States

12

13

14

15

16

17

18

19

20

21

22

23

24

25

26

27

28

 
 Case: 3:18-cv-08075-DGC-BSB As of: 03/04/2019 04:24 PM MST 1 of 8
CASREF,CLOSED,DTE,MIDP,STD
U.S. District Court DISTRICT OF ARIZONA (Prescott Division) CIVIL DOCKET FOR CASE #: 3:18−cv−08075−DGC−BSB

Tenorio−Serrano v. Driscoll et al Assigned to: Judge David G Campbell Referred to: Magistrate Judge Bridget S Bade
Case in other court: Coconino County Superior Court, CV201800144
Cause: 28:1441 Petition for Removal− Injunctive/Declaratory Relief
Plaintiff

Date Filed: 04/02/2018 Date Terminated: 08/20/2018 Jury Demand: Defendant Nature of Suit: 540 Prisoner: Mandamus & Other Jurisdiction: Federal Question

Guillermo Tenorio−Serrano as an individual, and on behalf of all others similarly situated

represented by Cody H Wofsy ACLU − San Francisco, CA Immigrants Rights Project 39 Drumm St. San Francisco, CA 94111 415−343−0770 Fax: 415−395−0950 Email: cwofsy@aclu.org LEAD ATTORNEY ATTORNEY TO BE NOTICED

Kathryn Grace Mahady Aspey Watkins & Diesel PLLC 123 N San Francisco St., Ste. 300 Flagstaff, AZ 86001 928−774−1478 Fax: 928−774−8404 Email: kmahady@awdlaw.com LEAD ATTORNEY ATTORNEY TO BE NOTICED

Lee Gelernt ACLU − New York, NY 125 Broad St., 18th Fl. New York, NY 10004 212−549−2616 Fax: 212−549−2654 Email: lgelernt@aclu.org LEAD ATTORNEY ATTORNEY TO BE NOTICED

Spencer E Amdur ACLU − San Francisco, CA Immigrants Rights Project 39 Drumm St. San Francisco, CA 94111 415−343−0770 Fax: 415−395−0950 Email: samdur@aclu.org LEAD ATTORNEY ATTORNEY TO BE NOTICED

Kathleen E Brody ACLU − Phoenix, AZ P.O. Box 17148 Phoenix, AZ 85011 602−650−1854 Fax: 602−650−1376 Email: kbrody@acluaz.org

Case: 3:18-cv-08075-DGC-BSB As of: 03/04/2019 04:24 PM MST 2 of 8
ATTORNEY TO BE NOTICED
Omar C Jadwat ACLU − New York, NY 125 Broad St., 18th Fl. New York, NY 10004 212−549−2620 Fax: 212−549−2654 Email: ojadwat@aclu.org ATTORNEY TO BE NOTICED
William Bradford Peard ACLU − Phoenix, AZ P.O. Box 17148 Phoenix, AZ 85011 520−256−5387 Email: bpeard@acluaz.org ATTORNEY TO BE NOTICED

V. Defendant James Driscoll Coconino County Sheriff, in official capacity
Defendant Matt Figueroa Jail Commander of the Coconino County Jail, in official capacity

represented by John T Masterson Jones Skelton & Hochuli PLC 40 N Central Ave., Ste. 2700 Phoenix, AZ 85004 602−263−1700 Fax: 602−200−7846 Email: jmasterson@jshfirm.com LEAD ATTORNEY ATTORNEY TO BE NOTICED
Justin Michael Ackerman Jones Skelton & Hochuli PLC 40 N Central Ave., Ste. 2700 Phoenix, AZ 85004 602−263−1740 Email: jackerman@jshfirm.com LEAD ATTORNEY ATTORNEY TO BE NOTICED
Michele Molinario Jones Skelton & Hochuli PLC 40 N Central Ave., Ste. 2700 Phoenix, AZ 85004 602−263−1746 Fax: 602−200−7831 Email: mmolinario@jshfirm.com LEAD ATTORNEY ATTORNEY TO BE NOTICED
represented by John T Masterson (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Justin Michael Ackerman (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Michele Molinario

Case: 3:18-cv-08075-DGC-BSB As of: 03/04/2019 04:24 PM MST 3 of 8

(See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Defendant
Matt Ryan member of the Board of Directors of the Coconino County Jail District, in official capacity TERMINATED: 08/20/2018

represented by James M Jellison Jellison Law Offices PLLC 36889 N Tom Darlington Dr., Ste. B7 Carefree, AZ 85337 602−772−5520 Fax: 602−772−5509 Email: jim@jellisonlaw.com LEAD ATTORNEY ATTORNEY TO BE NOTICED

Defendant
Lena Fowler member of the Board of Directors of the Coconino County Jail District, in official capacity TERMINATED: 08/20/2018

represented by James M Jellison (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Defendant
Jim Parks member of the Board of Directors of the Coconino County Jail District, in official capacity TERMINATED: 08/20/2018

represented by James M Jellison (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Defendant
Elizabeth Archuleta member of the Board of Directors of the Coconino County Jail District, in official capacity TERMINATED: 08/20/2018

represented by James M Jellison (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Defendant
Art Babbott member of the Board of Directors of the Coconino County Jail District, in official capacity TERMINATED: 08/20/2018

represented by James M Jellison (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Amicus National Sheriffs' Association

represented by Eileen Dennis GilBride Jones Skelton & Hochuli PLC 40 N Central Ave., Ste. 2700 Phoenix, AZ 85004 602−263−1700 Fax: 602−200−7827 Email: egilbride@jshfirm.com LEAD ATTORNEY ATTORNEY TO BE NOTICED

Amicus
Southwestern Border Sheriffs' Coalition

represented by Eileen Dennis GilBride (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Case: 3:18-cv-08075-DGC-BSB As of: 03/04/2019 04:24 PM MST 4 of 8

Amicus Western States Sheriffs' Association

represented by Eileen Dennis GilBride (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Amicus Arizona Sheriffs' Association

represented by Eileen Dennis GilBride (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Date Filed 04/02/2018
04/02/2018 04/02/2018 04/03/2018 04/03/2018
04/03/2018 04/03/2018 04/04/2018 04/05/2018 04/05/2018 04/06/2018

# Docket Text
1 NOTICE OF REMOVAL from Coconino County Superior Court, case number CV201800144 (TRO Requested). Filing fee received: $ 400.00, receipt number 0970−15335176 filed by Matt Figueroa, James Driscoll. (Submitted by Molinario, Michele) (Attachments: # 1 Exhibit, # 2 Exhibit, # 3 Exhibit, # 4 Exhibit, # 5 Exhibit, # 6 Civil Cover Sheet, # 7 Supplemental Civil Cover Sheet)(DLC) (Entered: 04/03/2018)
2 **Withdrawn by Doc 15 ** RESPONSE in Opposition to Plaintiff's Application for Temporary Restraining Order by James Driscoll, Matt Figueroa. (Submitted by Molinario, Michele) (DLC) *Modified filers on 4/25/2018 (DXD). (Entered: 04/03/2018)
3 NOTICE OF ASSIGNMENT: (DLC) (Entered: 04/03/2018)
4 DEFENDANT'S DEMAND for Jury Trial by James Driscoll, Matt Figueroa. (Molinario, Michele) (Entered: 04/03/2018)
5 NOTICE TO THE PARTIES − The Court is participating in the Mandatory Initial Discovery Pilot (MIDP) and this case is subject to that pilot. The key features and deadlines are set forth in the attached Notice which includes General Order 17−08. Also attached is a checklist for use by the parties. All parties must respond to the mandatory initial discovery requests set forth in the General Order before initiating any further discovery in this case. Please note: The discovery obligations in the General Order supersede the disclosures required by Rule 26(a)(1). Any party seeking affirmative relief must serve a copy of the attached documents (Notice to Parties, including General Order 17−08 and MIDP Checklist) on each new party when the Complaint, Counterclaim, Crossclaim, or Third−Party Complaint is served. (DLC) (Entered: 04/03/2018)
6 NOTICE of Appearance by James M Jellison on behalf of Elizabeth Archuleta, Art Babbott, Lena Fowler, Jim Parks, Matt Ryan. (Jellison, James) (Entered: 04/03/2018)
7 NOTICE re: Consent to Removal of Action from State Court by Elizabeth Archuleta, Art Babbott, Lena Fowler, Jim Parks, Matt Ryan . (Jellison, James) (Entered: 04/03/2018)
8 MOTION for Extension of Time to File Answer re: 1 Notice of Removal and/or File Other Response to Complaint by Elizabeth Archuleta, Art Babbott, Lena Fowler, Jim Parks, Matt Ryan. (Attachments: # 1 Text of Proposed Order)(Jellison, James) (Entered: 04/04/2018)
9 ORDER − The Court will take no action on any pending motion in the matter at this time. A screening order pursuant to 28 U.S.C. § 1915A will be forthcoming. Signed by Judge David G Campbell on 4/4/18. (DXD) (Entered: 04/05/2018)
10 MOTION for Extension of Time to File Answer re: 1 Notice of Removal, 9 Order by James Driscoll, Matt Figueroa. (Attachments: # 1 Text of Proposed Order)(Molinario, Michele) (Entered: 04/05/2018)
11 NOTICE re: Pending Motion by Guillermo Tenorio−Serrano . (Mahady, Kathryn) (Entered: 04/06/2018)

Case: 3:18-cv-08075-DGC-BSB As of: 03/04/2019 04:24 PM MST 5 of 8

04/06/2018 04/09/2018 04/11/2018
04/24/2018 04/30/2018 04/30/2018 04/30/2018
04/30/2018 05/01/2018
05/02/2018 05/02/2018 05/02/2018 05/02/2018 05/02/2018

14 MOTION for Declaratory Judgment, MOTION for Temporary Restraining Order, MOTION for Order to Show Cause Regarding Preliminary and Permanent Injunction by Guillermo Tenorio−Serrano. (DXD) (Entered: 04/11/2018)
12 DEFENDANTS' ANSWER to Complaint with Jury Demand by James Driscoll, Matt Figueroa.(Molinario, Michele) (Entered: 04/09/2018)
13 ORDER granting 10 Motion for Extension of Time and denying 8 Motion for Extension of Time. Defendants must Answer the Complaint (Doc. 1 −1) and respond to Petitioner's Motion for Declaratory Relief, Application for Temporary Restraining Order, and Application for Order to Show Cause Regarding Application for Preliminary and Permanent Injunction within 21 days from the date of this Order. The Clerk shall docket Petitioner's Motion for Declaratory Relief, Application for Temporary Restraining Order, and Application for Order to Show Cause Regarding Application for Preliminary and Permanent Injunction as a separate entry on the docket in order to facilitate Defendants' Responses to it. This matter is referred to the Honorable Magistrate Bridget S. Bade pursuant to Rules 72.1 and 72.2 of the Local Rules of Civil Procedure for all pretrial proceedings, is assigned to the standard track and to the Mandatory Initial Discovery Pilot pursuant to General Order 17−08. See Order for further details. Signed by Judge David G Campbell on 4/10/18. (DXD) (Entered: 04/11/2018)
15 *WITHDRAWAL OF DOCUMENT re: 2 Response by Defendants James Driscoll, Matt Figueroa. (Molinario, Michele) *Modified to correct event on 4/25/2018 (DXD). (Entered: 04/24/2018)
16 NOTICE of Filing Amended Pleading pursuant to LRCiv 15.1(b) by James Driscoll, Matt Figueroa . (Attachments: # 1 Exhibit)(Molinario, Michele) (Entered: 04/30/2018)
17 AMENDED ANSWER to Plaintiffs Complaint by James Driscoll, Matt Figueroa. (Molinario, Michele) (Entered: 04/30/2018)
18 AMENDED COMPLAINT (First) against All Plaintiffs filed by Guillermo Tenorio−Serrano. (Attachments: # 1 Exhibit Exhibit A − Jail Policy, # 2 Exhibit Exhibit B − Mik Jordahl Email, # 3 Exhibit Exhibit C − ACLU Letter, # 4 Exhibit Exhibit D − ICE Detainer (I−247) and ICE Warrant (I−200), # 5 Exhibit Exhibit E, # 6 Exhibit Exhibit F − Release Conditions, # 7 Exhibit Exhibit G − Sarai Tenorio Serrano Affidavit, # 8 Exhibit Exhibit H − JCB Notarized Affidavit GTS, # 9 Exhibit Exhibit I − AG Opinion)(Mahady, Kathryn) (Entered: 04/30/2018)
19 NOTICE of Filing Amended Pleading pursuant to LRCiv 15.1(b) by Guillermo Tenorio−Serrano . (Attachments: # 1 Exhibit Exhibit A − Compared Complaints)(Mahady, Kathryn) (Entered: 04/30/2018)
20 ORDER: Pursuant to Rule 16 of the Federal Rules of Civil Procedure, a Case Management Conference is set for June 27, 2018 at 1:30 p.m. in Courtroom 304, Sandra Day O'Connor United States Courthouse, 401 West Washington Street, Phoenix, Arizona 85003−2120 [see attached Order for details]. Signed by Magistrate Judge Bridget S Bade on 5/1/18. (MAW) (Entered: 05/01/2018)
21 ANSWER to 1 Notice of Removal, by Elizabeth Archuleta, Art Babbott, Lena Fowler, Jim Parks, Matt Ryan.(Jellison, James) (Entered: 05/02/2018)
22 RESPONSE to Motion re: 14 MOTION for Declaratory JudgmentMOTION for Temporary Restraining OrderMOTION for Order to Show Cause Regarding Preliminary and Permanent Injunction filed by Elizabeth Archuleta, Art Babbott, Lena Fowler, Jim Parks, Matt Ryan. (Jellison, James) (Entered: 05/02/2018)
23 MOTION for Leave to Appear Telephonically by Guillermo Tenorio−Serrano. (Mahady, Kathryn) (Entered: 05/02/2018)
24 MOTION for Leave to File Excess Pages for Request for Page Extension by James Driscoll, Matt Figueroa. (Attachments: # 1 Text of Proposed Order)(Molinario, Michele) (Entered: 05/02/2018)
25 **Filed at Doc. 28 LODGED Proposed Defendant Driscoll and Figueroa's Amened Response to TRO re: 24 MOTION for Leave to File Excess Pages for Request for Page Extension . Document to be filed by Clerk if Motion or Stipulation for Leave to

Case: 3:18-cv-08075-DGC-BSB As of: 03/04/2019 04:24 PM MST 6 of 8

05/07/2018
05/07/2018 05/07/2018
05/09/2018 05/09/2018 05/10/2018 05/14/2018 05/14/2018 05/16/2018
05/17/2018 05/17/2018 05/18/2018 05/18/2018
05/18/2018 05/19/2018 05/19/2018 05/21/2018

File or Amend is granted. Filed by James Driscoll, Matt Figueroa. (Attachments: # 1 Exhibit, # 2 Exhibit, # 3 Exhibit, # 4 Exhibit, # 5 Exhibit, # 6 Exhibit, # 7 Exhibit)(Molinario, Michele) Modified on 5/10/2018 (DXD). (Entered: 05/02/2018)
26 ORDER granting 23 Motion for Leave to Appear telephonically for the Case Management Conference set for 6/27/2 018 at 1:30 p.m. Plaintiff's counsel must call Chambers the day and time of the conference, on a land line. Signed by Magistrate Judge Bridget S Bade on 5/7/18. (DXD) (Entered: 05/07/2018)
27 ORDER granting 24 Motion for Leave to File Excess Pages. The Clerk is directed to accept for filing the document lodged on the Court's docket as Doc. 25 . Signed by Judge David G Campbell on 5/7/18. (DXD) (Entered: 05/07/2018)
28 RESPONSE to Motion re: 14 MOTION for Declaratory Judgment, MOTION for Temporary Restraining Order, MOTION for Order to Show Cause Regarding Preliminary and Permanent Injunction filed by James Driscoll, Matt Figueroa. (Attachments: # 1 Exhibit 1−3, # 2 Exhibit 4−7)(DXD) (Entered: 05/07/2018)
29 NOTICE of Service of Responses to Mandatory Initial Discovery (MIDP) filed by Plaintiff Guillermo Tenorio−Serrano. (Mahady, Kathryn) (Entered: 05/09/2018)
30 NOTICE of Service of Responses to Mandatory Initial Discovery (MIDP) filed by Defendants James Driscoll, Matt Figueroa. (Masterson, John) (Entered: 05/09/2018)
31 NOTICE of Errata re: 28 Response to Motion, by Defendants James Driscoll, Matt Figueroa.. (Attachments: # 1 Exhibit)(Molinario, Michele) (Entered: 05/10/2018)
32 ANSWER to 18 Amended Complaint,, by Elizabeth Archuleta, Art Babbott, Lena Fowler, Jim Parks, Matt Ryan.(Jellison, James) (Entered: 05/14/2018)
33 ANSWER to 18 Amended Complaint,, with Jury Demand by James Driscoll, Matt Figueroa.(Molinario, Michele) (Entered: 05/14/2018)
34 *MOTION to File Amicus Brief by Amicus Parties National Sheriffs' Association, Southwestern Border Sheriffs' Coalition, Western States Sheriffs' Association, Arizona Sheriffs' Association. (GilBride, Eileen) *Modified to correct event on 5/17/2018 (DXD). (Entered: 05/16/2018)
35 NOTICE of Appearance by Kathleen E Brody on behalf of Guillermo Tenorio−Serrano. (Brody, Kathleen) (Entered: 05/17/2018)
36 NOTICE of Appearance by William Bradford Peard on behalf of Guillermo Tenorio−Serrano. (Peard, William) (Entered: 05/17/2018)
37 MOTION for Leave to File Excess Pages for Reply in Support of Application for Preliminary Injunction by Guillermo Tenorio−Serrano. (Attachments: # 1 Text of Proposed Order)(Jadwat, Omar) (Entered: 05/18/2018)
38 *Filed at Doc 51 LODGED Proposed Reply in Support of Application for Preliminary Injunction re: 37 MOTION for Leave to File Excess Pages for Reply in Support of Application for Preliminary Injunction. Document to be filed by Clerk if Motion or Stipulation for Leave to File or Amend is granted. Filed by Guillermo Tenorio−Serrano. (Attachments: # 1 Exhibit, # 2 Exhibit)(Jadwat, Omar) Modified on 6/18/2018 (DXD). (Entered: 05/18/2018)
39 MOTION to Expedite Hearing on Application for Preliminary Injunction by Guillermo Tenorio−Serrano. (Attachments: # 1 Text of Proposed Order)(Jadwat, Omar) (Entered: 05/18/2018)
40 NOTICE OF ATTORNEY APPEARANCE: Lauren C. Bingham appearing for United States. . (Bingham, Lauren) (Entered: 05/19/2018)
41 STATEMENT of Interest of the United States by Interested Party United States. (Attachments: # 1 Exhibit Declaration of Samantha Seaman)(Bingham, Lauren) (Entered: 05/19/2018)
42 ORDER denying 39 Motion to Expedite Hearing. The Court understands the reasons for Plaintiff's motion, but has examined its calendar and has no time available until June 28, 2018. The Court has conferred with Judge Bade, who is also assigned to this

Case: 3:18-cv-08075-DGC-BSB As of: 03/04/2019 04:24 PM MST 7 of 8

05/23/2018 05/23/2018 05/24/2018
05/29/2018 05/29/2018 05/29/2018 05/30/2018 06/04/2018 06/04/2018
06/15/2018 06/18/2018
06/18/2018 06/21/2018 06/22/2018

case, and she would not have time to hold a hearing and issue a decision before the end of June. As a result, the preliminary injunction hearing will be set for June 28, 2018, and 1:30 p.m., before the undersigned judge. The Court will set the hearing for 90 minutes. Signed by Judge David G Campbell on 5−21−18. This is a TEXT ENTRY ONLY. There is no PDF document associated with this entry. (DGC) (Entered: 05/21/2018)
43 NOTICE of Filing Amended Pleading pursuant to LRCiv 15.1(b) by James Driscoll, Matt Figueroa . (Attachments: # 1 Exhibit)(Molinario, Michele) (Entered: 05/23/2018)
44 AMENDED ANSWER to 18 Amended Complaint by James Driscoll, Matt Figueroa. (Molinario, Michele) (Entered: 05/23/2018)
45 MINUTE ORDER: The Rule 16 Case Management Conference currently set for June 27, 2018 is RESET to August 7, 2018 at 01:30 PM in Courtroom 304, 401 West Washington Street, Phoenix, AZ 85003 before Magistrate Judge Bridget S. Bade. All other directives in the Order scheduling the Case Management Conference remain in full force and effect. This is a TEXT ENTRY ONLY. There is no PDF document associated with this entry. (BSB, ew) (Entered: 05/24/2018)
46 NOTICE of Appearance by Erez Reuveni on behalf of United States. (Reuveni, Erez) (Entered: 05/29/2018)
Remark: Pro hac vice motion granted for Omar C Jadwat on behalf of plaintiff. This is a TEXT ENTRY ONLY. There is no PDF document associated with this entry. (BAS) (Entered: 05/29/2018)
Remark: Pro hac vice motion granted for Lee Gelernt on behalf of plaintiff. This is a TEXT ENTRY ONLY. There is no PDF document associated with this entry. (BAS) (Entered: 05/29/2018)
Remark: Pro hac vice motion granted for Cody Wofsy and Spencer Amdur granted on behalf of plaintiff. This is a TEXT ENTRY ONLY. There is no PDF document associated with this entry. (BAS) (Entered: 05/30/2018)
47 NOTICE re: Other by Guillermo Tenorio−Serrano . (Wofsy, Cody) (Entered: 06/04/2018)
48 NOTICE TO FILER OF DEFICIENCY re: 47 Notice (Other). Document not in compliance with LRCiv 7.1(a) − Forms of Papers. Please note for future filings; information that must be stated upon the first page of every document and may be presented for filing. No further action is required. This is a TEXT ENTRY ONLY. There is no PDF document associated with this entry. (DXD) (Entered: 06/05/2018)
49 NOTICE of Service of Responses to Mandatory Initial Discovery (MIDP) filed by Defendants Elizabeth Archuleta, Art Babbott, Lena Fowler, Jim Parks, Matt Ryan. (Jellison, James) (Entered: 06/15/2018)
50 ORDER − The reference to the Magistrate Judge is withdrawn as to the Request to File Amicus Brief (Doc. 34 ) and Plaintiff's Motion to Exceed Page Limits (Doc. 37 ). Granting Request to File Amicus Brief (Doc. 34 ) and Plaintiff's Motion to Exceed Page Limits (Doc. 37 ). The Clerk shall file Plaintiff's Reply in Support of Motion for Preliminary Injunction (currently lodged at Doc. 38 ). Signed by Judge David G Campbell on 6/18/18. (DXD) (Entered: 06/18/2018)
51 REPLY to Response to Motion re: 14 MOTION for Declaratory Judgment MOTION for Temporary Restraining Order MOTION for Order to Show Cause Regarding Preliminary and Permanent Injunction filed by Guillermo Tenorio−Serrano. (Attachments: # 1 Exhibit, # 2 Exhibit)(DXD) (Entered: 06/18/2018)
52 *MOTION to Participate in Oral Argument by United States . (Bingham, Lauren) *Modified to correct event on 6/25/2018 (SLQ). (Entered: 06/21/2018)
53 NOTICE re: Defendants' Notice to the Court re: Position of Arizona Attorney General's Office re: Advisory Opinion No. 16−010 and United States Department of Justice's Request to Participate in Oral Argument by James Driscoll, Matt Figueroa . (Masterson, John) (Entered: 06/22/2018)

Case: 3:18-cv-08075-DGC-BSB As of: 03/04/2019 04:24 PM MST 8 of 8

06/25/2018 06/26/2018
06/28/2018

54 Joinder re: 41 Statement by Defendants James Driscoll, Matt Figueroa. (Attachments: # 1 Exhibit)(Molinario, Michele) (Entered: 06/25/2018)
55 ORDER granting 52 federal government's motion to participate in hearing. The Court will permit the United States to participate in Thursday's hearing. To accommodate this additional participation, the Court will extend the hearing to two hours, with Plaintiff to have 60 minutes and Defendants/USA to have 60 minutes. Parties are not required to use all of the time allotted to them. Counsel for Defendants and the United States should confer and agree on how to divide their 60 minutes. Signed by Judge David G Campbell on 6−26−18. This is a TEXT ENTRY ONLY. There is no PDF document associated with this entry. (DGC) (Entered: 06/26/2018)
56 MINUTE ENTRY for proceedings held before Judge David G Campbell: Motion Hearing held on 6/28/2018. ORDERED taking under advisement 14 Motion for Declaratory Judgment; Motion for TRO/Preliminary injunction. Court order to follow.

07/06/2018 07/20/2018 07/30/2018 08/01/2018
08/10/2018 08/20/2018
08/20/2018

APPEARANCES: Spencer Amdur, Kathryn Mahady, William Peard, Cody Wofsy for Plaintiff. John Masterson, Michele Molinario, Lisa Papsin for Defendants Driscoll and Figueroa. James Jellison for Defendants Ryan, Fowler, Parks,Archuleta and Babbott. Lauren Bingham for defendant USA (Court Reporter Patricia Lyons.) Hearing held 1:29 PM to 3:33 PM. This is a TEXT ENTRY ONLY. There is no PDF document associated with this entry. (TCA) (Entered: 06/28/2018)
57 ORDER: Plaintiff's motion for a preliminary injunction 14 is denied. Signed by Judge David G Campbell on 7/05/2018. (REK) (Entered: 07/06/2018)
58 NOTICE re: Status by Guillermo Tenorio−Serrano re: 57 Order on Motion for Order to Show Cause . (Peard, William) (Entered: 07/20/2018)
59 MOTION to Dismiss Case by Guillermo Tenorio−Serrano. (Attachments: # 1 Text of Proposed Order)(Brody, Kathleen) (Entered: 07/30/2018)
60 MINUTE ORDER: The Rule 16 Case Management Conference currently set for August 7, 2018 at 1:30 PM in Courtroom 304, 401 West Washington Street, Phoenix, AZ 85003 before Magistrate Judge Bridget S. Bade is VACATED pending ruling on Plaintiff's Motion to Dismiss Case. (Doc. 59.) This is a TEXT ENTRY ONLY. There is no PDF document associated with this entry. (BSB, ew) (Entered: 08/01/2018)
61 RESPONSE to Motion re: 59 MOTION to Dismiss Case filed by Elizabeth Archuleta, Art Babbott, Lena Fowler, Jim Parks, Matt Ryan. (Jellison, James) (Entered: 08/10/2018)
62 ORDER granting Plaintiff's 59 Motion to Dismiss as to Defendants Matt Ryan, Lena Fowler, Jim Parks, Elizabeth Archuleta, and Art Babbott, all in their official capacities as members of the Board of Directors of the Coconino County Jail District. This case is dismissed as to the above Defendants without prejudice, each party shall bear their own attorneys' fees and costs. Signed by Senior Judge David G Campbell on 8/20/2018. (ATD) (Entered: 08/20/2018)
63 ORDER − Defendants Driscoll and Figueroa are dismissed without prejudice, each party shall bear their own attorneys' fees and costs. The Clerk of Court is directed to terminate this matter. Signed by Senior Judge David G Campbell on 8/20/2018. (ATD) (Entered: 08/20/2018)

 
 Case 3:18-cv-08075-DGC-BSB Document 18 Filed 04/30/18 Page 1 of 30

ASPEY, WATKINS & DIESEL, PLLC 123 N. San Francisco St., 3rd Floor
Flagstaff, AZ 86001 (928) 774-1478

1 Kathryn G. Mahady (28916) ASPEY WATKINS & DIESEL, PLLC
2 123 N. San Francisco Street, 3rd Floor Flagstaff, Arizona 86001
3 Telephone: (928) 774-1478 Email: KMahady@awdlaw.com
4 Attorney for Plaintiff

5

UNITED STATES DISTRICT COURT

6

DISTRICT OF ARIZONA

7

Guillermo Tenorio-Serrano, as an

8 individual and on behalf of all others

Case No. 3:18-cv-08075-DGC-BSB

similarly situated,

9

FIRST AMENDED COMPLAINT

Plaintiff,

10

(CLASS ACTION)

v.

11

James (“Jim”) Driscoll, Sheriff of

12 Coconino County, Arizona; Matt Figueroa,

Jail Commander of the Coconino County

13 Detention Facility; Matt Ryan, member of

the Board of Directors of the Coconino

14 County Jail District; Lena Fowler, member

of the Board of Directors of the Coconino

15 County Jail District; Jim Parks, member of

the Board of Directors of the Coconino

16 County Jail District; Elizabeth Archuleta,

member of the Board of Directors of the

17 Coconino County Jail District; Art

Babbott, member of the Board of Directors

18 of the Coconino County Jail District, all in

their official capacities,

19

20

Defendants.

21

- 1 -

Case 3:18-cv-08075-DGC-BSB Document 18 Filed 04/30/18 Page 2 of 30

ASPEY, WATKINS & DIESEL, PLLC 123 N. San Francisco St., 3rd Floor
Flagstaff, AZ 86001 (928) 774-1478

1

COMPLAINT

2

PRELIMINARY STATEMENT

3

1. Pursuant to policy of the Coconino County Sheriff’s Office (“CCSO”),

Coconino County will prolong the jail time of inmates suspected of residing in the 4

United States without lawful immigration status, even if Coconino County lacks any 5

state law basis for continued detention. 6

2. Plaintiff Guillermo Tenorio-Serrano (“Plaintiff” or “Tenorio-Serrano”) was 7

arrested on December 11, 2017 for alleged misdemeanor violations of A.R.S. § 288

1381(A)(1), (2) and § 28-1382(A)(1), (2) (driving under the influence of alcohol). 9

3. On December 12, 2017, the Flagstaff Justice Court set Plaintiff’s bond at 10

$2,000. 11

4. On at least two occasions since December 12, 2017, individuals have 12

attempted to post bond on Plaintiff’s behalf. 13

5. Despite numerous individuals being willing to post bond for Tenorio-Serrano, 14

Plaintiff remains detained in the Coconino County Detention Facility (“CCDF”) due 15

to CCDF’s unconstitutional policy of prolonging detention of inmates for whom it 16

receives a “detainer” request from the U.S. Immigration and Customs Enforcement 17

agency (“ICE”). 18

6. CCDF’s policy violates the Fourth and Fourteenth Amendments to the United 19

States Constitution and Article II, Section 8 of the Arizona Constitution by requiring 20

Plaintiff to remain in jail after meeting all conditions of pre-trial release, without any 21

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Case 3:18-cv-08075-DGC-BSB Document 18 Filed 04/30/18 Page 3 of 30

ASPEY, WATKINS & DIESEL, PLLC 123 N. San Francisco St., 3rd Floor
Flagstaff, AZ 86001 (928) 774-1478

1 independent probable cause determination that Mr. Tenorio-Serrano has committed

2 an additional crime, and without any recognized exception to the Warrant Clause of

3 the Fourth Amendment to the U.S. Constitution.

4

JURISDICTION AND VENUE

5 7. This Court has subject matter jurisdiction over this action pursuant to 28

6 U.S.C. § 1331, as this action arises under the U.S. Constitution and 42 U.S.C. §

7 1983.

8 8. This Court has subject matter jurisdiction over this action pursuant to 28

9 U.S.C. § 1343, as Plaintiff seeks to redress the deprivation of Constitutional rights

10 denied him under the color of state law.

11 9. This Court has the authority to grant injunctive and declaratory relief

12 pursuant to 28 U.S.C. §§ 1343, 2201, and 2202.

13 10. This Court has authority to award attorneys’ fees pursuant to 42 U.S.C. §

14 1988(b) and Rule 23(g)(1)(D) and 23(h), Fed. R. Civ. P.

15 11. This Court has supplemental jurisdiction over the state law claim pursuant to

16 28 U.S.C. § 1367, as the state law claim is so related to the claims arising under the

17 U.S. Constitution and federal laws as to form part of the same case or controversy.

18 12. Venue is proper pursuant to 28 U.S.C. § 1391(b) because Plaintiff is currently

19 detained within the District of Arizona, Plaintiff resides in the District of Arizona,

20 and a substantial part of the events or omissions giving rise to this claim occurred in

21 the District of Arizona.

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Case 3:18-cv-08075-DGC-BSB Document 18 Filed 04/30/18 Page 4 of 30

ASPEY, WATKINS & DIESEL, PLLC 123 N. San Francisco St., 3rd Floor
Flagstaff, AZ 86001 (928) 774-1478

1

PARTIES

2 13. Plaintiff Guillermo Tenorio-Serrano is a resident of Coconino County,

3 Arizona.

4 14. Plaintiff is currently held as a pre-trial detainee in CCDF, located at 951 E.

5 Sawmill Road in Flagstaff, Arizona.

6 15. Plaintiff has been continuously held as a pre-trial detainee by the CCSO since

7 December 11, 2017.

8 16. Defendant James Driscoll is the Coconino County Sheriff and has served as

9 the Coconino County Sheriff during all times relevant to this action. Mr. Driscoll is

10 sued in his official capacity.

11 17. Mr. Driscoll’s duties include taking charge of and keeping CCDF, pursuant to

12 A.R.S. §§ 11-441(A)(5) and 48-4002(F).

13 18. Defendant Matt Figueroa is an employee of CCSO and serves as the Jail

14 Commander of CCDF. Mr. Figueroa is sued in his official capacity.

15 19. Upon information and belief, Mr. Driscoll has delegated to Mr. Figueroa the

16 authority to formulate jail policy.

17 20. Upon information and belief, Defendant Matt Figueroa drafted the current

18 version of the jail policy that implements the constitutional violations addressed in

19 this action.

20 21. Upon information and belief, Defendant Matt Figueroa is responsible for

21 overseeing the day-to-day operations of CCDF.

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ASPEY, WATKINS & DIESEL, PLLC 123 N. San Francisco St., 3rd Floor
Flagstaff, AZ 86001 (928) 774-1478

Case 3:18-cv-08075-DGC-BSB Document 18 Filed 04/30/18 Page 5 of 30
1 22. Upon information and belief, Defendant Matt Figueroa has supervisorial 2 responsibility over all civilian CCSO employees working at CCDF, including those 3 civilian employees responsible for accepting and/or processing bail. 4 23. The Coconino County Jail District (“Jail District”) is a political subdivision 5 of the State of Arizona. It is organized and established to provide in-custody 6 detention and inmate-correctional housing in the CCDF pursuant to A.R.S. § 487 4001, et seq. 8 24. The Jail District is overseen and operated by the CCSO and the Coconino 9 County Board of Supervisors. The County Board of Supervisors serves as the Board 10 of Directors of the Jail District. See A.R.S. § 48-4002. 11 25. Defendant Matt Ryan is the chairman of the Coconino County Board of 12 Supervisors and a member of the Board of Directors for the Jail District. Mr. Ryan is 13 sued in his official capacity. 14 26. Defendant Lena Fowler is vice-chair of the Coconino County Board of 15 Supervisors and a member of the Board of Directors for the Jail District. Ms. Fowler 16 is sued in her official capacity. 17 27. Defendant Elizabeth Archuleta is a member of the Coconino County Board of 18 Supervisors and a member of the Board of Directors for the Jail District. Ms. 19 Archuleta is sued in her official capacity. 20 21
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Case 3:18-cv-08075-DGC-BSB Document 18 Filed 04/30/18 Page 6 of 30

ASPEY, WATKINS & DIESEL, PLLC 123 N. San Francisco St., 3rd Floor
Flagstaff, AZ 86001 (928) 774-1478

1 28. Defendant Art Babbott is a member of the Coconino County Board of

2 Supervisors and a member of the Board of Directors for the Jail District. Mr.

3 Babbott is sued in his official capacity.

4 29. Defendant Jim Parks is a member of the Coconino County Board of

5 Supervisors and a member of the Board of Directors for the Jail District. Mr. Parks

6 is sued in his official capacity.

7 30. Defendants Ryan, Fowler, Archuleta, Babbott, and Parks are hereafter

8 referred to as the “Jail Board Defendants.”

9 31. Upon information and belief, prior to taking full effect, the Jail Board

10 Defendants reviewed the current version of the jail policy that implements the

11 constitutional violations addressed in this action.

12 32. Upon information and belief, a majority of the Jail Board Defendants voted to

13 approve implementation of the current version of the jail policy that implements the

14 constitutional violations addressed in this action.

15

GENERAL ALLEGATIONS

16 I. CCSO’s 2017 Jail Policy 17 33. Upon information and belief, the CCSO has had in place since at least 18 January 2008 a written policy setting out the steps jail staff are to follow when 19 encountering a CCDF inmate suspected of being in the United States without lawful 20 immigration status. 21

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ASPEY, WATKINS & DIESEL, PLLC 123 N. San Francisco St., 3rd Floor
Flagstaff, AZ 86001 (928) 774-1478

Case 3:18-cv-08075-DGC-BSB Document 18 Filed 04/30/18 Page 7 of 30
1 34. On July 28, 2017, CCSO issued a revised version of this jail policy, entitled 2 “Suspected Illegal Immigrant Inmates” (“2017 Jail Policy”). A copy of this 2017 Jail 3 Policy is attached as Exhibit “A.” 4 35. The 2017 Jail Policy became effective on July 28, 2017 and remains in place 5 to this date. 6 36. The 2017 Jail Policy controls the ongoing detention of Mr. Tenorio-Serrano. 7 37. The 2017 Jail Policy instructs CCDF staff to allow inmates with “ICE 8 detainers” (also referred to as “ICE holds”) to “post bond on their local charges.” 9 Exhibit A. 10 38. However, the 2017 Jail Policy also instructs staff that such inmates “will 11 remain in custody” until either: 1) ICE provides notice it has dropped its detainer; 2) 12 ICE takes custody of the inmate; or 3) ICE fails to take custody of the inmate within 13 forty-eight hours of a defendant posting bond. Exhibit A. 14 39. The 2017 Jail Policy instructs CCSO personnel to prolong detention of a 15 subset of pre-trial detainees beyond the time CCSO would otherwise hold them, for 16 the sole reason that CCSO received an “ICE detainer” and an accompanying “ICE 17 administrative warrant.” Exhibit A. 18 40. Upon information and belief, Defendant Figueroa drafted the 2017 Jail 19 Policy. Defendant Figueroa was acting under color of state law when he did so. 20 41. The 2017 Jail Policy was drafted and issued under the supervision of 21 Defendant Driscoll.
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ASPEY, WATKINS & DIESEL, PLLC 123 N. San Francisco St., 3rd Floor
Flagstaff, AZ 86001 (928) 774-1478

Case 3:18-cv-08075-DGC-BSB Document 18 Filed 04/30/18 Page 8 of 30
1 42. The 2017 Jail Policy was implemented under the supervision of Defendant
2 Driscoll, who, pursuant to A.R.S. § 11-441, is a final policymaking authority whose
3 edicts or acts may fairly be said to represent official policy with regard to the daily
4 operations of the county jail and the inmates held within it.
5 43. Defendant Driscoll ratified the 2017 Jail Policy after it was drafted and
6 prepared by his subordinate, Defendant Figueroa.
7 44. In implementing or otherwise ratifying the 2017 Jail Policy, Defendant
8 Driscoll was undertaking an act of official government policy of Coconino County.
9 45. Upon information and belief, CCFD employees were trained or otherwise
10 instructed to implement the provisions of the 2017 Jail Policy when fulfilling their
11 duties to receive and process bond on behalf of pre-trial detainees.
12 II. Defendants’ Awareness of the Unlawfulness of the 2017 Jail Policy and of Mr. Tenorio-Serrano’s Prolonged Jail Detention
13 46. In 2010, Arizona enacted a state law codified in relevant part at A.R.S. § 11-
14 1051, commonly known as “SB 1070.”
15 47. No provision of SB 1070 requires local law enforcement agencies to prolong
16 the detention of pre-trial detainees in county jail.
17 48. No state or federal court has interpreted any provision of SB 1070 to require
18 local law enforcement agencies to prolong the detention of pre-trial detainees in
19 county jail.
20 49. No provision of SB 1070 mentions the terms “ICE detainer,” “ICE hold,”
21 “immigration detainer,” “immigration hold,” “federal law enforcement detainer,” - 8 -

ASPEY, WATKINS & DIESEL, PLLC 123 N. San Francisco St., 3rd Floor
Flagstaff, AZ 86001 (928) 774-1478

Case 3:18-cv-08075-DGC-BSB Document 18 Filed 04/30/18 Page 9 of 30
1 “federal law enforcement hold,” “ICE administrative warrant,” “administrative 2 warrant,” or “immigration warrant.” 3 50. No provision of SB 1070 mentions the terms “jail,” “county jail,” “detention 4 facility,” “inmate,” or “pre-trial detention.” 5 51. No provision of SB 1070 authorizes law enforcement agencies to prolong the 6 pre-trial jail detention of individuals suspected of being in the United States without 7 lawful status. 8 52. No provision of SB 1070 authorizes law enforcement agencies to prolong the 9 pre-trial jail detention of individuals in response to a request from a federal law 10 enforcement agency. 11 53. On September 20, 2016, pursuant to its state statutory authority under A.R.S. 12 § 41-193, the Arizona Attorney General issued Advisory Opinion No. 16-010 with 13 the stated purpose to “guide law enforcement agencies and officers as to their duties 14 under state law.” A copy of this Opinion is attached as Exhibit I. 15 54. Arizona Attorney General Advisory Opinion No. 16-010 states that: “If an 16 officer has probable cause to believe that an individual has committed a civil 17 immigration violation, the officer has no authority to arrest the individual and shall 18 not detain the individual longer than necessary to complete the state law basis for the 19 contact.” 20 55. Arizona Attorney General Advisory Opinion No. 16-010 does not mention 21 the terms “ICE detainer,” “ICE hold,” “immigration detainer,” “immigration hold,”
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ASPEY, WATKINS & DIESEL, PLLC 123 N. San Francisco St., 3rd Floor
Flagstaff, AZ 86001 (928) 774-1478

Case 3:18-cv-08075-DGC-BSB Document 18 Filed 04/30/18 Page 10 of 30
1 “federal law enforcement detainer,” “federal law enforcement hold,” “ICE 2 administrative warrant,” “administrative warrant,” or “immigration warrant.” 3 56. Arizona Attorney General Advisory Opinion No. 16-010 mentions the word 4 “jail” exactly once. The only reference to the word “jail” is the admonition that a 5 “jail official shall not prolong an arrest or detention for an immigration inquiry[.]” 6 Exhibit I. 7 57. Arizona Attorney General Advisory Opinion No. 16-010 does not otherwise 8 address the obligations of jails or jail staff. 9 58. Arizona Attorney General Advisory Opinion No. 16-010 is the only Arizona 10 Attorney General advisory opinion interpreting the provisions of SB 1070. 11 59. On September 19, 2017, Mik Jordahl, the Coconino County Inmate Civil 12 Rights Advising Attorney, communicated with County Attorney Bill Ring and 13 Defendant Matt Figueroa expressing concerns about CCDF’s practice of prolonging 14 the detention of those pre-trial detainees with pending ICE detainers. A copy of this 15 communication is attached as Exhibit B. 16 60. Mr. Jordahl indicated “there may be some significant liabilities to the County 17 and the Jail District to holding a person without a court order, even for a matter of 18 hours after they otherwise would have been released.” Exhibit B. 19 61. On September 28, 2017, the ACLU of Arizona sent a twelve-page letter to 20 Respondent Jim Driscoll and other officers of Coconino County outlining the 21
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ASPEY, WATKINS & DIESEL, PLLC 123 N. San Francisco St., 3rd Floor
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Case 3:18-cv-08075-DGC-BSB Document 18 Filed 04/30/18 Page 11 of 30
1 constitutional concerns with the 2017 Jail Policy. A copy of this letter is attached as 2 Exhibit C. 3 62. The ACLU letter provided Defendant Jim Driscoll with no fewer than ten 4 case citations from federal district courts, federal circuit courts, and state supreme 5 courts in other states indicating that several provisions of the 2017 Jail Policy are 6 unconstitutional. Exhibit C. 7 63. The ACLU letter informed Defendants that at least two (2) federal district 8 court cases within the Ninth Circuit have struck down as unconstitutional jail 9 practices similar to Coconino County’s 2017 Jail Policy. Exhibit C, p.3, 5; Ochoa v. 10 Campbell, 2017 WL 3476777 (E.D. Wash. July 31, 2017); Miranda-Olivares v. 11 Clackamas Cty., 2014 WL 1414305 (D. Or. April 11, 2014). 12 64. Upon information and belief, Defendant Jim Driscoll and Coconino County 13 Attorney Bill Ring received the ACLU’s letter on or about September 30, 2017. 14 65. In October 2017, a group of concerned citizens met with Defendant Jim 15 Driscoll and County Attorney Bill Ring to express their concerns about the 2017 Jail 16 Policy. 17 66. In December 2017 a group of concerned citizens met again with County 18 Attorney Bill Ring to reiterate their concerns about the 2017 Jail Policy. 19 67. On February 27, 2018, at least six residents of Coconino County appeared 20 before the regularly-scheduled meeting of the Coconino County Board of 21 Supervisors to bring to their attention the constitutional violations of the 2017 Jail
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1 Policy. All five members of the Coconino County Board of Supervisors were in 2 attendance during this meeting. 3 68. In March 2018, numerous residents of Coconino County appeared before the 4 regularly-scheduled meeting of the Coconino County Board of Supervisors to again 5 bring to their attention the constitutional violations of the 2017 Jail Policy. 6 69. Defendants continue to refuse to revise or replace the 2017 Jail Policy. 7 70. Mr. Tenorio-Serrano’s Fourth and Fourteenth Amendment rights to secure 8 prompt release from CCDF upon satisfaction of all local conditions of release were 9 clearly established as of December 12, 2017, the day the Flagstaff Justice Court set a 10 bond in his criminal case. 11 71. The nature of Mr. Tenorio-Serrano’s Fourth and Fourteenth Amendment 12 rights in this context were sufficiently clear as of December 12, 2017, such that a 13 reasonable official would have known that implementing the 2017 Jail Policy 14 violated Mr. Tenorio-Serrano’s rights. 15 72. Defendants had fair notice as early as December 12, 2017 that prolonging Mr. 16 Tenorio-Serrano’s pre-trial detention was unlawful. 17 73. Defendants had fair notice as early as December 12, 2017 that no state law 18 compelled them to prolong the pre-trial detention of Mr. Tenorio-Serrano. 19 20 21
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1 III.Mr. Tenorio-Serrano’s Initial Arrest and Detention 2 74. Tenorio-Serrano was arrested by Flagstaff Police on December 11, 2017 and 3 charged with four criminal counts related to driving while under the influence of 4 alcohol. 5 75. All four criminal counts are alleged violations of Arizona criminal statutes. 6 76. On December 11, 2017, Tenorio-Serrano was booked into CCDF on the local 7 charges described above. 8 77. At no time did Coconino County officials bring federal criminal charges 9 against Tenorio-Serrano. 10 78. At no time since December 11, 2017 have federal authorities brought federal 11 criminal charges against Tenorio-Serrano. 12 79. Upon information and belief, at no time since December 11, 2017 have 13 federal authorities communicated to CCSO personnel that there is probable cause to 14 believe that Tenorio-Serrano has violated any federal criminal laws. 15 80. Upon information and belief, there are no outstanding criminal warrants from 16 other jurisdictions for Tenorio-Serrano’s arrest. 17 81. Upon information and belief, during all times relevant to this action, no 18 federal or state official has established probable cause to believe Tenorio-Serrano 19 has violated a federal criminal statute. 20 21
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1 IV.ICE Involvement in Mr. Tenorio-Serrano’s Case 2 82. On or about December 12, 2017, ICE officials in Phoenix, Arizona became 3 aware that Tenorio-Serrano was in the custody of CCSO. 4 83. On December 12, 2017, ICE officials in Phoenix, Arizona faxed two 5 documents to CCDF related to Tenorio-Serrano: one document entitled “Department 6 of Homeland Security Immigration Detainer – Notice of Action” and imprinted with 7 the form number “I-247A,” and a second document entitled “U.S. Department of 8 Homeland Security Warrant for Arrest of Alien” and imprinted with the form 9 number “I-200.” Both documents are standard ICE forms and are attached as Exhibit 10 D. 11 84. Aside from the two documents referenced above, CCSO received no other 12 documents from ICE related to Plaintiff Tenorio-Serrano. 13 A. Form I-247A: ICE Detainer Request 14 85. Form I-247A provided to CCDF on December 12, 2017 states ICE has 15 determined that there exists “probable cause” to believe that Mr. Tenorio-Serrano is 16 “a removable alien”. Exhibit D. 17 86. Form I-247A nowhere indicates that ICE has established probable cause to 18 believe that Mr. Tenorio-Serrano violated any criminal laws. 19 87. Nowhere on Form I-247A appear the words “misdemeanor” or “felony.” 20 88. Form I-247A is signed by an ICE “deportation officer” with the surname 21 Wagstaff.
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1 89. At all times relevant to this complaint, Officer Wagstaff was an employee of 2 ICE. 3 90. ICE is a federal law enforcement agency. 4 91. At all times relevant to this complaint, Officer Wagstaff was a federal law 5 enforcement officer. 6 92. Officer Wagstaff, at the time he or she prepared the Form I-247A at issue in 7 this action, was acting as a law enforcement officer employed by ICE. 8 93. Officer Wagstaff, at the time he or she prepared the Form I-247A at issue in 9 this action, was not acting as a “neutral and detached magistrate,” as that term is 10 understood within the Fourth Amendment jurisprudence. 11 B. Form I-200: ICE Administrative Warrant 12 94. Form I-200 is titled a “warrant for arrest of alien” and was signed by Barry 13 Jansen, an “authorized immigration officer” employed by ICE. Exhibit D. 14 95. Form I-200 is addressed to “any immigration officer authorized pursuant to 15 Sections 236 and 287 of the Immigration and Nationality Act and part 287 of title 8, 16 Code of Federal Regulations, to serve warrants of arrest for immigration violations.” 17 Exhibit D. 18 96. Neither CCDF nor CCSO employs anyone who meets the criteria of “any 19 immigration officer authorized pursuant to Sections 236 and 287 of the Immigration 20 and Nationality Act and part 287 of title 8, Code of Federal Regulations, to serve 21 warrants of arrest for immigration violations.” Exhibit D.
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1 97. Upon information and belief, at all times relevant to this action, there have 2 been no other state or federal law enforcement officers who meet the criteria 3 described above stationed at CCDF, or otherwise authorized to perform functions on 4 behalf of CCSO 5 98. Neither CCSO nor CCDF participate in the federal program known as 6 “287(g),” which authorizes local law enforcement officers of participating agencies 7 to perform certain immigration-related tasks. 8 99. Form I-200 does not articulate any reasonable suspicion or probable cause to 9 believe Mr. Tenorio-Serrano violated any criminal laws. 10 100. Neither the word “misdemeanor” nor the word “felony” appear 11 anywhere on the standard Form I-200 provided to CCDF. 12 101. Barry Jansen, whose signature appears on the Form I-200 provided to 13 CCDF, is a federal law enforcement officer and an employee of ICE. 14 102. Barry Jansen, at the time he signed the Form I-200, was not acting as a 15 “neutral and detached magistrate,” as that term is defined by Fourth Amendment 16 jurisprudence. 17 103. Form I-200 was not signed by a judge. 18 104. Form I-200 was not signed by an employee of the judicial branch at 19 either the state or federal level. 20 105. Form I-200 was not signed by an administrative law judge. 21
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1 106. Form I-200 was issued by an executive official involved in the 2 investigation of Mr. Tenorio-Serrano’s immigration status. 3 107. Form I-200 was not supported by the oath or affirmation of any 4 government official, neutral or otherwise. 5 108. ICE has admitted in public court filings in other lawsuits that “ICE’s 6 detainer policy does not require its agents to obtain a determination of probable 7 cause from a detached and neutral magistrate.” See Jimenez-Moreno v. Johnson, 8 1:11-cv-05452 (N.D. Ill.), Dk. #219 (Feb. 9, 2016). 9 109. Form I-200 states probable cause was founded upon “statements made 10 voluntarily by the subject to an immigration officer and/or other reliable evidence” 11 but does not indicate which of the two (or both) purportedly establishes probable 12 cause in this instance. 13 110. ICE has a well-documented history of unreliability in determining 14 which jail inmates may be subject to removal. For example, between 2003 and 15 2015, ICE issued detainers to CCSO on three occasions for individuals who were 16 later proven to be U.S. citizens and not deportable. During the same time period, 17 ICE issued detainers to the Maricopa County Sheriff’s Office 265 times for 18 individuals later proven to be U.S. citizens.1 19 20 21
1 Data from FOIA requests submitted to ICE: http://trac.syr.edu/phptools/immigration/detain/
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1 111. According to public court filings in other litigation, ICE 2 “acknowledges there are ‘big gaps’ in CIS naturalization information,” one of the 3 key databases ICE personnel must consult prior to deciding whether there is 4 probable cause to believe a jail inmate is removable. See, e.g., Roy, et al. v. County 5 of Los Angeles, et al., 2:12-cv-09012 (C.D. Cali.), Dk. #278 (Plaintiffs’ Opposition 6 to Defendants’ Motion for Summary Judgment). A copy of this document is attached 7 as Exhibit E. 8 112. ICE itself estimates that two of the immigration-related databases it 9 frequently consults to make determinations of probable cause produce errors 10 approximately 30% of the time. Id. 11 113. During all times relevant to this action, Defendant Jim Driscoll knew 12 or should have known of these inadequacies within ICE’s system for making 13 probable cause determinations, as many of these details were pointed out to him in 14 the September 28, 2017 letter attached as Exhibit C. 15 114. At all times relevant to this action, Defendant Jim Driscoll knew or 16 should have known CCSO has no constitutional authority to continue Plaintiff 17 Tenorio-Serrano’s detention for up to forty-eight additional hours after receiving 18 cash bail on Plaintiff Tenorio-Serrano’s local charges, due to the facts asserted 19 above. 20 115. At all times relevant to this action, Defendant Jim Driscoll knew or 21 should have known his agency bears independent legal responsibility for ensuring it
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1 is detaining jail inmates in a lawful manner and that his agency cannot hide behind 2 representations or requests made by a federal law enforcement agency. 3 V. CCSO’s Detention of Mr. Tenorio-Serrano 4 116. On December 12, 2017, the Flagstaff Justice Court set bail on Tenorio5 Serrano’s misdemeanor charges in the amount of $2,000. A copy of these release 6 conditions is attached as Exhibit F. 7 117. The Flagstaff Justice Court derived its authority to set conditions of 8 release from A.R.S. § 13-3967 and from Article II, Section 22 of the Arizona 9 Constitution, as Tenorio-Serrano is a pre-trial detainee facing state misdemeanor 10 charges within the Flagstaff Justice Court’s jurisdiction. 11 118. The $2,000 bail was the only condition of release the Flagstaff Justice 12 Court set. Exhibit F. 13 119. The Release Conditions attached as Exhibit F are still in force at this 14 time and have not been rescinded, modified, superseded or otherwise amended since 15 the initial issuance on December 12, 2017. 16 120. On December 12, 2017, just hours after the Flagstaff Justice Court set 17 bail on the local charges, Ms. Sarai Tenorio-Serrano visited CCDF to inquire 18 whether Plaintiff would be released upon payment of the $2,000 bail. An Affidavit 19 from Ms. Tenorio-Serrano is attached as Exhibit G. 20 121. The on-duty CCDF employee informed Ms. Tenorio-Serrano that 21 Plaintiff was indeed being held on $2,000 bail but that payment of such bail would
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1 not result in Plaintiff’s release into the community due to the existence of an “ICE 2 detainer.” Exhibit G. 3 122. On December 15, 2017, Mr. Joseph Cabell Breckinridge attempted to 4 post cash bail on behalf of Plaintiff at CCDF with a personal credit card that had 5 more than $2,000 in available credit. An Affidavit from Mr. Breckinridge is attached 6 as Exhibit H. 7 123. Prior to tendering his personal credit card, Mr. Breckinridge verbally 8 confirmed with the CCSO employee on duty that Plaintiff was being held as a pre9 trial detainee on $2,000 bail. Exhibit H. 10 124. The on-duty CCSO employee, Ms. Ormsby, informed Mr. 11 Breckinridge that it was typically the practice of CCSO to “immediately” release a 12 pre-trial detainee upon receipt of the requisite bail amount. Exhibit H. 13 125. Upon information and belief, it is typical practice for CCSO to release 14 pre-trial detainees within one hour of the requisite bail being received on the 15 detainee’s behalf. In other words, upon information and belief, “immediate,” for 16 CCSO release purposes, means approximately one hour. 17 126. After confirming Plaintiff was being held on $2,000 cash bail and 18 confirming CCSO’s typical practice in such circumstances, Ms. Ormsby informed 19 Mr. Breckinridge that Tenorio-Serrano would not be “immediately” released upon 20 payment of the $2,000 bail. Exhibit H. 21
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1 127. Ms. Ormsby explained to Mr. Breckinridge that Plaintiff would be 2 held for up to an additional 48 hours after Mr. Breckinridge posted the bail. Exhibit 3 H. 4 128. Ms. Ormsby explained to Mr. Breckinridge that this additional delay 5 was due exclusively to the existence of what the on-duty employee referred to as an 6 “ICE hold.” Exhibit H. 7 129. Ms. Ormsby explained to Mr. Breckinridge that the additional delay in 8 Tenorio-Serrano’s release was in order to allow ICE sufficient time to take custody 9 of Tenorio-Serrano. Exhibit H. 10 130. Mr. Breckinridge would have tendered the full bail amount and 11 completed the transaction on December 15, 2017, but for Ms. Ormsby’s verbal 12 representations. Exhibit H. 13 131. Ms. Ormsby presented Mr. Breckinridge (and by extension Plaintiff) 14 with an impossible choice: either tender the $2,000 bond money and trigger the 2017 15 Jail Policy resulting in an almost certain prolongation of up to 48 hours or not tender 16 the bond money and Plaintiff would remain in custody until his trial date. 17 132. The actions and representations made by Ms. Ormsby on December 18 15, 2017 are consistent with the 2017 Jail Policy described above and attached as 19 Exhibit A. 20 21
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ASPEY, WATKINS & DIESEL, PLLC 123 N. San Francisco St., 3rd Floor
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1 133. Upon information and belief, the representations made by the on-duty

2 CCSO staff on December 12, 2017 and again by Ms. Ormsby on December 15, 2017

3 are drawn from the 2017 Jail Policy.

4 134. Absent the 2017 Jail Policy, Mr. Tenorio-Serrano would have been

5 released from pre-trial detention no later than December 15, 2017. For this reason,

6 the 2017 Jail Policy was the moving force behind Mr. Tenorio-Serrano’s

7 constitutional deprivations.

8 135. Plaintiff Tenorio-Serrano has now been unlawfully detained by

9 Defendants approximately four months longer than he would have if Defendants had

10 processed his bail in a lawful manner.

11

CLASS ACTION ALLEGATIONS

12 136. Pursuant to Fed. R. Civ. P. 23, Plaintiff brings this injunctive class

13 action and seeks certification of the claims and certain issues in this action on behalf

14 of a Class defined as:

15

All current and future pre-trial detainees of Coconino County Detention

Facility who currently are or will be the subject(s) of an ICE detainer request

16

sent to Defendants (except those pre-trial detainees not eligible for bail

under Article II, Section 22 of the Arizona Constitution).

17 (Hereinafter, the “Class”).

18 137. Plaintiff reserves the right to amend the Class definition if further

19 investigation and discovery indicates the Class definition should be narrowed,

20 expanded, or otherwise modified.

21

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1 138. Plaintiff brings this class action pursuant to Rule 23(b)(2) and only as 2 to Counts One and Two of this Complaint. Consequently, Plaintiff seeks class 3 treatment only to the extent that he is seeking injunctive and declaratory relief from 4 this Court. Count Three of this Complaint, alleging violations under 42 U.S.C. § 5 1983, is expressly excluded from class treatment. 6 139. Defendants’ practices and omissions giving rise to this action are being 7 applied uniformly to all members of the Class. 8 140. Absent relief granted by this Court, all future members of the Class 9 will be treated similarly to Plaintiff and similarly to one another. 10 141. All members of the Class are and will be similarly affected by 11 Defendants’ unconstitutional practices. 12 142. Based upon public records available at this time, it is apparent that the 13 number of Class members is so large as to make joinder impractical, if not 14 impossible. 15 143. Plaintiff seeks class certification of a class composed of individuals 16 currently being harmed and individuals who will be harmed in the future. Therefore 17 joinder is impracticable, in part, because there is an unknown number of future 18 members of the proposed class in this injunctive/declaratory class action. 19 144. The claims asserted by Plaintiff in this action are typical of the claims 20 of the members of the Class, as the claims arise from the same course of conduct by 21
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1 Defendants, and the relief sought within the Class is common to the members of the 2 Class. 3 145. A common answer as to the legality of Defendants’ practices and 4 policies will drive resolution of the overall litigation. 5 146. Plaintiff will fairly and adequately represent and protect the interests 6 of the members of the Class, as he shares a common interest with the absent class 7 members – namely, to stop Defendants’ unconstitutional practices, which will harm 8 class members in the same manner they have and, currently are, harming Plaintiff. 9 147. Neither Plaintiff nor proposed class counsel seek financial gain at the 10 cost of absent class members’ rights, and accordingly Plaintiff lacks any antagonism 11 with the proposed class and Plaintiff’s interests align squarely with other proposed 12 class members. 13 148. Plaintiff’s counsel (who will seek to be appointed as class counsel) is 14 highly qualified, has experience both with complex litigation and with legal matters 15 related to immigration, has the resources to devote to representing the class, and will 16 fairly and adequately represent the interests of the class. 17 149. Plaintiffs meet the requirements of Rule 23(b)(2), Fed. R. Civ. P., as 18 Plaintiff complains of a pattern or practice that is generally applicable to the class as 19 a whole. Consequently, injunctive and declaratory relief can be granted only as to 20 all the class members or as to none of them. 21
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1 150. The proposed class is sufficiently ascertainable because it is

2 administratively feasible to ascertain whether a given individual (either currently or

3 at some future time) is or will be a member. This is so because the class is defined

4 by clear and objective criteria – namely, individuals who are or will be detained by a

5 specific government entity, in a specific context, and whose detention is prolonged

6 for a specific reason.

7

COUNT 1

8

(Injunctive Relief)

9 On Behalf of Plaintiff and Class Members and Against Defendants Driscoll, Figueroa, Ryan, Fowler, Parks, Archuleta, and Babbott
10 151. Plaintiff restates and incorporates herein by reference the allegations
11 contained in the preceding paragraphs of this Complaint.
12 152. The allegations described above constitute violations of Plaintiff’s
13 rights pursuant to the Fourth Amendment and Fourteenth Amendment to the United
14 States Constitution and Article II, Section 8 of the Arizona Constitution.
15 153. Plaintiff can demonstrate both a likelihood of success on the merits
16 and a probability (not merely possibility) of irreparable harm if the Court does not
17 grant relief.
18 154. Plaintiff can show that there will be no hardship to Defendants if relief
19 is granted, and that Plaintiff will suffer immeasurably if this Court does not grant
20 relief.
21

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ASPEY, WATKINS & DIESEL, PLLC 123 N. San Francisco St., 3rd Floor
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1

COUNT 2

2

(Declaratory Relief)

3 On Behalf of Plaintiff and Class Members and Against Defendants Driscoll, Figueroa, Ryan, Fowler, Parks, Archuleta, and Babbott
4 155. Plaintiff restates and incorporates herein by reference the allegations
5 contained in the preceding paragraphs of this Complaint.
6 156. This case presents an actual controversy within the jurisdiction of this
7 Court.
8 157. The allegations described above constitute violations of Plaintiff’s
9 rights pursuant to the Fourth and Fourteenth Amendments to the United States
10 Constitution and Article II, Section 8 of the Arizona Constitution.
11

12

COUNT 3

13

Violation of Fourth and Fourteenth Amendments to the U.S. Constitution

14

42 U.S.C. § 1983

15

158.

Plaintiff restates and incorporates herein by reference the allegations

16 contained in the preceding paragraphs of this Complaint.

17

159.

References to Plaintiff’s rights under the Fourth Amendment to the

18 U.S. Constitution include the Fourth Amendment as applied to the states through the

19 Fourteenth Amendment.

20

21

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ASPEY, WATKINS & DIESEL, PLLC 123 N. San Francisco St., 3rd Floor
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1 160. Defendant Driscoll either promulgated the 2017 Jail Policy or ratified

2 the 2017 Jail Policy after having delegated the authority to promulgate such policy

3 to Defendant Figueroa.

4 161. Defendants’ promulgation and implementation of the 2017 Jail Policy

5 violates Plaintiff’s rights under the Fourth and Fourteenth Amendments to the U.S.

6 Constitution.

7 162. The 2017 Jail Policy proximately caused Plaintiff’s constitutional

8 deprivations.

9 163. The 2017 Jail Policy was the “but for” cause of Plaintiff’s

10 constitutional deprivations, as employees of CCDF and CCSO implemented the

11 provisions of the 2017 Jail Policy, thereby causing Plaintiff’s deprivations.

12

13

PRAYER FOR RELIEF

14

WHEREFORE, Plaintiff respectfully requests this Court enter judgment in

15 his favor and against Defendants, and award the following relief:

16 A. Certify Count 1 (seeking injunctive relief) and Count 2 (seeking declaratory

17

relief) of this action as a class action, pursuant to Rule 23(a) and 23(b)(2),

18

Fed. R. Civ. P.;

19 B. Include in such Order an award of attorneys’ fees and non-taxable costs,

20

pursuant to Rule 23(g)(1)(D) and 23(h), Fed. R. Civ. P.;

21

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ASPEY, WATKINS & DIESEL, PLLC 123 N. San Francisco St., 3rd Floor
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1 C. Appoint undersigned counsel as class counsel, pursuant to Rule 23(g), Fed. R.

2

Civ. P.;

3 D. Declare the provisions of Defendants’ 2017 Jail Policy permitting CCSO

4

employees to hold certain pre-trial detainees for up to 48 additional hours

5

beyond the time such pre-trial detainees have met all conditions of pre-trial

6

release to be in violation of Article II, Section 8 of the Arizona Constitution,

7

both facially and as applied to Plaintiff;

8 E. Declare the provisions of Defendants’ 2017 Jail Policy permitting CCSO

9

employees to hold certain pre-trial detainees for up to 48 additional hours

10

beyond the time such pre-trial detainees have met all conditions of pre-trial

11

release to be in violation of the Fourth Amendment to the United States

12

Constitution, both facially and as applied to Plaintiff;

13 F. Declare the Form I-200 provided to CCSO by ICE on December 12, 2017 is

14

not sufficient to meet the requirements of Article II, Section 8 of the Arizona

15

Constitution and the Warrant Clause of the Fourth Amendment to the United

16

States Constitution;

17 G. Declare the current version of ICE’s Form I-200 is not a lawful warrant upon

18

which Defendants are entitled to rely;

19 H. Preliminarily and permanently enjoin Defendants, their officers, agents,

20

servants, and employees under Count 1 from holding or otherwise detaining

21

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ASPEY, WATKINS & DIESEL, PLLC 123 N. San Francisco St., 3rd Floor
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1

Plaintiff more than sixty minutes beyond the moment CCSO receives the bail

2

amount set by the Flagstaff Justice Court on December 12, 2017;

3 I. Preliminarily and permanently enjoin Defendants, their officers, agents,

4

servants, and employees under Count 1 from holding or otherwise detaining

5

Class Members beyond the time that Class Members satisfy all conditions of

6

pre-trial release, as set by the applicable Arizona court with jurisdiction to set

7

such conditions;

8 J. Award Plaintiff his costs and reasonable attorneys’ fees in this action,

9

pursuant to 42 U.S.C. § 1988(b);

10 K. Grant Plaintiff and Class Members such other relief as this Court may deem

11

just and proper.

12 L. In the event Plaintiff is entitled under applicable law to a jury trial on any

13

issues in dispute, Plaintiff requests a trial by jury.

14 DATED: April 30, 2018.
15
16

ASPEY WATKINS & DIESEL, PLLC

17

/s/Kathryn G. Mahady

Kathryn G. Mahady

18

Attorney for Plaintiff

19

20

21

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Case 3:18-cv-08075-DGC-BSB Document 18 Filed 04/30/18 Page 30 of 30
1 CERTIFICATE OF SERVICE
2 I hereby certify that on April 30, 2018, I electronically transmitted the foregoing
3 document to the Clerk’s Office using the CM/ECF System for filing and transmittal of a Notice of Electronic Filing to the following CM/ECF registrants:
4 John T. Masterson
5 Michele Molinario Justin M. Ackerman
6 JONES, SKELTON & HOCHULI, P.L.C. 40 North Central Avenue, Suite 2700
7 Phoenix, Arizona 85004 Attorneys for Respondents James Driscoll and
8 Matt Figueroa
9 James M. Jellison SIMS MURRAY JELLISON, LTD.
10 3101 North Central Avenue Suite 870
11 Phoenix, Arizona 85012 Attorney for Board Defendants
12 /S/ KATHRYN G. MAHADY
13
14
15
16
17
18
19
20
21
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 Case 3:18-cv-08075-DGC-BSB Document 47 Filed 06/04/18 Page 1 of 4 CODY WOFSY
ATTORNEY IMMIGRANTS’ RIGHTS PROJECT

June 4, 2018

Hon. David G. Campbell United States District Court Sandra Day O’Connor U.S. Courthouse, Suite 623 401 West Washington Street, SPC 58 Phoenix, AZ 85003-2156

Re: Tenorio-Serrano v. Driscoll, No. 3:18-cv-08075-DGC-BSB

Dear Judge Campbell:

California Office 39 Drumm Street San Francisco, CA 94111 p. (415) 343-0785 f. (415) 395-0950 cwofsy@aclu.org
National Office
125 Broad Street, 18th Fl. New York NY 10014 (212) 549-2660 aclu.org

Counsel for plaintiff Guillermo Tenorio-Serrano in this matter respectfully submit this letter to notify the Court of a development in his criminal case and to briefly respond to several points made for the first time in the United States’ Statement of Interest (Doc. No. 41).
Plaintiff’s June criminal trial date has been vacated, and a hearing is set for August 1. Plaintiff will keep the Court advised of any further developments.
After plaintiff filed his reply in support of a preliminary injunction, the United States filed a Statement of Interest in support of the defendants. Because plaintiff had no opportunity to respond to the United States’ lengthy brief, he respectfully submits this letter to respond to several incorrect contentions regarding the state law issues:

(1) The United States asserts that “continuing to hold” an individual based on an immigration detainer does not constitute a new “arrest” as a matter of Arizona law, because the individual is already in custody. U.S. Br. 19-20 n.9. That contention cannot be squared with Arizona law, which specifically provides that “a person who is already incarcerated” may be subject to a new “arrest.” A.R.S. § 13-3907 (addressing arrest pursuant to a warrant); see also Plf. Reply (Doc. No. 38) at 1 (explaining that courts have been clear that holding an individual on an immigration detainer constitutes a new arrest).

(2) The United States also contends that an ICE detainer and administrative warrant constitute a “warrant” under Arizona law, because any public official (including an ICE officer) counts as a “magistrate” who can issue “warrants.” U.S. Br. 21 & n.10. But Arizona law is clear that “magistrate” means a judicial officer. A.R.S. § 1-215(18) defines “Magistrate” as “an officer having power to issue a warrant for the arrest of a person charged with a public offense”—which, as previously explained,

Case 3:18-cv-08075-DGC-BSB Document 47 Filed 06/04/18 Page 2 of 4
Hon. David G. Campbell Tenorio-Serrano v. Driscoll, No. 3:18-cv-08075-DGC-BSB Page 2
means a criminal violation, Plf. Reply at 4. The statute goes on to list various Arizona officers—all of them judicial—who qualify as magistrates, including “the chief justice and justices of the supreme court, judges of the superior court, judges of the court of appeals, justices of the peace and judges of a municipal court.” A.R.S. § 1-215(18). ICE officers (like Arizona police officers) are thus not “magistrates,” and do not issue warrants, within the meaning of Arizona law. See also Plf. Reply at 2 n.2.
(3) The United States invokes A.R.S. § 11-447 as a source of arrest authority. But that provision addresses (as the section’s title indicates) “[s]ervice of process” such as summonses for court cases. See Ariz. R. Civ. P. 4(a), (d)(2) (providing for service of summonses and complaints by the sheriff); Dft. Opp. (Doc. No. 25) at 9 n.9 (agreeing that “process” refers to documents issued by a court). The statute does not, contrary to the United States’ suggestion, say anything about permitting sheriffs to “make an arrest.” U.S. Br. 21.
(4) The United States attempts to distinguish Cisneros v. Elder, No. 18cv-30549 (Colo. D. Ct. Mar. 19, 2018), by asserting that the plaintiffs there had been detained “far beyond the time authorized by the detainer.” U.S. Br. 29 n.14. But the plaintiffs in Cisneros were pretrial detainees seeking release on bond, just like Mr. Tenorio-Serrano. Id. at 2. And the court’s analysis had nothing to do with the length of detention. Rather, it held that Colorado law, like Arizona law, does not authorize arrests pursuant to detainers. Id. at 4-11.
(5) Finally, the United States suggests that there is a general rule that arrest authority exists unless it is explicitly disclaimed. U.S. Br. 18-19. But the United States does not deny that whether to authorize detainer arrests is a question for each state’s law, and that states can and do vary in this respect. Compare Plf. Reply 1-2 (discussing Massachusetts and Colorado law), with id. at 7 (addressing Texas law). There is no such authority under Arizona law, as the Ninth Circuit recognized in Gonzales v. City of Peoria, 722 F.2d 468 (9th Cir. 1983). See Plf. Reply 2-3.
Nor do the United States’ cases establish otherwise. First, it relies on the Tenth Circuit’s interpretation of Utah law in United States v. SantanaGarcia, 264 F.3d 1188, 1193-94 (10th Cir. 2001), but that case explicitly parted ways with Gonzales—which interpreted Arizona law and is binding in this Circuit. And Santana-Garcia’s core reasoning—“that state and local police officers had implicit authority” to make civil immigration arrests, id.

Case 3:18-cv-08075-DGC-BSB Document 47 Filed 06/04/18 Page 3 of 4
Hon. David G. Campbell Tenorio-Serrano v. Driscoll, No. 3:18-cv-08075-DGC-BSB Page 3
at 1194—was rejected by the Supreme Court in Arizona v. United States, 567 U.S. 387, 407-10 (2012). Second, other cases the United States cites addressed state officers’ authority to arrest for federal criminal violations. See, e.g., United States v. Janik, 723 F.2d 537, 548 (7th Cir. 1983); United States v. Bowdach, 561 F.2d 1160, 1167-68 (5th Cir. 1977); Marsh v. United States, 29 F.2d 172, 173-74 (2d Cir. 1928). But Gonzales specifically distinguished, in the context of Arizona arrest authority, such criminal arrests from the kind of civil immigration arrest at issue here. 722 F.2d at 476. Last, some of the out-of-state cases on which the United States relies indicate that sheriffs in those states may exercise non-statutory, common law powers. See, e.g., Com. v. Leet, 537 Pa. 89, 93 (1994); Christopher v. Sussex Cty., 77 A.3d 951, 956 (Del. 2013). But, as previously explained, Arizona has specified in its Constitution that sheriffs have only those powers that are granted by statute and regulation. Plf. Reply 3-4.
Plaintiff respectfully asks that the Court issue a preliminary injunction.
Respectfully Submitted,
/s/ Cody H. Wofsy Cody H. Wofsy* Spencer E. Amdur* AMERICAN CIVIL LIBERTIES UNION FOUNDATION 39 Drumm Street San Francisco, CA 94111 Tel: (415) 343-0770 Email: cwofsy@aclu.org samdur@aclu.org
Omar C. Jadwat* Lee Gelernt* AMERICAN CIVIL LIBERTIES UNION FOUNDATION 125 Broad Street, 18th Floor New York, NY 10004 Tel: (212) 549-2660 Email: ojadwat@aclu.org lgelernt@aclu.org

Case 3:18-cv-08075-DGC-BSB Document 47 Filed 06/04/18 Page 4 of 4
Hon. David G. Campbell Tenorio-Serrano v. Driscoll, No. 3:18-cv-08075-DGC-BSB Page 4
Kathleen E. Brody William B. Peard ACLU FOUNDATION OF ARIZONA 3707 North 7th Street, Suite 235 Phoenix, AZ 85014 Tel: (602) 650-1854 Email: kbrody@acluaz.org peard@acluaz.org
Kathryn G. Mahady (028916) ASPEY WATKINS & DIESEL, PLLC 123 N. San Francisco Street, 3rd Floor Flagstaff, AZ 86001 Tel: (928) 774-1478 Email: KMahady@awdlaw.com
Attorneys for Plaintiff
*admitted Pro Hac Vice

 
 Case 3:18-cv-08075-DGC-BSB Document 57 Filed 07/06/18 Page 1 of 18

1 WO

2

3

4

5

6

IN THE UNITED STATES DISTRICT COURT

7

FOR THE DISTRICT OF ARIZONA

8

9 Guillermo Tenorio-Serrano,

No. CV-18-08075-PCT-DGC (BSB)

10

Plaintiff,

11 v.

ORDER

12 James Driscoll, et al.,

13

Defendants.

14

15

16

Plaintiff Guillermo Tenorio-Serrano is in custody on a DUI charge in Coconino

17 County, Arizona. The United States Immigration and Customs Enforcement agency

18 (“ICE”) has determined that Plaintiff is not lawfully present in the United States and has

19 issued a detainer and administrative warrant for his arrest, which could lead to his

20 removal from the country. Plaintiff brings this lawsuit against Coconino County Sheriff

21 James Driscoll, Coconino County Jail Commander Matt Figueroa, the Coconino County

22 Jail District, and members of the Coconino County Board of Supervisors, challenging

23 their policy of holding persons in state custody for up to 48 additional hours as requested

24 in ICE detainers and warrants. Plaintiff asks the Court to preliminarily enjoin the

25 Sheriff’s Office and the Coconino County Detention Facility (“CCDF”) from detaining

26 him on the ICE warrant after he posts bail or resolves his state charges. Doc. 14.

27 Plaintiff’s preliminary injunction motion is fully briefed, and the Court heard oral

28

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1 argument on June 28, 2018. Doc. 56. For the reasons that follow, the Court will deny the

2 request for a preliminary injunction.

3 I. Facts.

4

On December 11, 2017, Plaintiff was arrested for allegedly driving under the

5 influence in violation of Arizona misdemeanor statutes and was confined in CCDF as a

6 pretrial detainee. Doc. 18 ¶ 2. On December 12, 2017, the Flagstaff Justice Court set

7 Plaintiff’s bail at $2,000. Id. ¶ 3. The bail was the only condition of Plaintiff’s release.

8 Id. ¶ 118. The same day, Plaintiff’s sister visited CCDF to inquire whether Plaintiff

9 would be released if the $2,000 bail was posted. Id. ¶ 120. A CCDF employee told her

10 that payment of the bail would not result in Plaintiff’s release because an ICE detainer

11 had been lodged against him. Id. ¶ 121. On December 15, 2017, Joseph Breckinridge

12 offered to post Plaintiff’s bail with a personal credit card, and was told by a CCDF

13 employee that while it typically takes pre-trial detainees one hour to be released after bail

14 is posted, Plaintiff would be held for up to 48 hours due to an “ICE hold.” Id. ¶¶ 122-28.

15 Given this statement, Mr. Breckinridge did not tender Plaintiff’s bail. Id. ¶ 130.

16

A Sheriff’s Detention Facility Policy and Procedure effective since 2008, and

17 revised on July 28, 2017, provides that upon reasonable suspicion that an inmate in the

18 facility is unlawfully present in the United States, CCDF staff must notify the Detention

19 Removal Office (“DRO”), a subsidiary of ICE, and have the inmate speak to the DRO

20 over the telephone. Doc. 18-1 at 1. If the DRO determines that the inmate is in the

21 country illegally, ICE will fax two forms to CCDF to be placed in the inmate’s file: a

22 Department of Homeland Security (“DHS”) Form I-247A Notice of Action –

23 Immigration Detainer (“detainer”), and either a DHS Form I-200 Warrant for Arrest of

24 Alien or a DHS Form I-205 Warrant of Removal/Deportation (“ICE warrant”). Id. A

25 hold will then be placed in the inmate’s file, and, when the inmate posts bail or resolves

26 his state charges, detention staff will notify the DRO. Id. at 1-2.

27

The policy further provides that “the detainer will remain in effect and the inmate

28 will remain in custody until” (1) the DRO or ICE sends a Form I-247A release notifying

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1 CCDF to remove the detainer, (2) ICE takes custody of the inmate, or (3) the “detainer

2 period” expires. Id. at 2. The detainer period “commences when the local or state

3 criminal justice agency has no other legal basis for continuing the detention[,]” and “shall

4 not exceed 48 hours.” Id. “In the event DHS/ICE fails to assume actual physical custody

5 of the detainee within 48 hours of the onset of the federal detainer (including Saturdays,

6 Sundays and holidays) the detainee must be released.” Id.

7

On December 12, 2017, ICE officials in Phoenix, Arizona became aware that

8 Plaintiff was in the custody of the Sheriff and faxed two documents to CCDF: a Form

9 I-247A detainer and a Form I-200 ICE warrant. Doc. 18 ¶¶ 82-83; Doc. 18-4. The

10 detainer is signed by an ICE deportation officer and states that there exists probable cause

11 to believe that Plaintiff is a removable alien based on “[s]tatements made by the alien to

12 an immigration officer and/or other reliable evidence.” Doc. 18-4 at 1. It is addressed to

13 CCDF, and requests that CCDF maintain custody of Plaintiff for a period not to exceed

14 48 hours beyond the time he would otherwise be released. Id. The ICE warrant is signed

15 by Barry Jansen, an authorized immigration officer, and is addressed to “any immigration

16 officer authorized pursuant to Sections 236 and 287 of the Immigration and Nationality

17 Act and part 287 of title 8, Code of Federal Regulations, to serve warrants of arrest for

18 immigration violations.” Id. at 2. Neither the Sheriff’s Office nor CCDF has a written

19 “287(g)” agreement with the federal government. Doc. 18 ¶ 98; see 8 U.S.C. § 1357(g).

20

Plaintiff argues that the Sheriff’s policy of continuing to hold pre-trial detainees

21 after they have satisfied all conditions for release on their state charges is unlawful

22 because the Sheriff lacks authority under state and federal law to detain on the basis of an

23 ICE warrant and detainer, and such detention violates the Fourth Amendment to the U.S.

24 Constitution and Article II, § 8 of the Arizona Constitution. Doc. 14. Plaintiff seeks a

25 preliminary injunction ordering Defendants to release him immediately upon posting of

26 his $2,000 bail. Id. Defendants oppose the request for injunctive relief (Docs. 22, 28), as

27 does the United States, which has filed a detailed statement of interest pursuant to 28

28 U.S.C. §§ 517 and 518 (Doc. 41).

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1 II. Legal Standard.

2

“A preliminary injunction is an extraordinary remedy never awarded as a matter of

3 right.” Winter v. Nat. Res. Def. Council, Inc., 555 U.S. 7, 24 (2008). To obtain a

4 preliminary injunction, a plaintiff must show “that he is likely to succeed on the merits,

5 that he is likely to suffer irreparable harm in the absence of preliminary relief, that the

6 balance of equities tips in his favor, and that an injunction is in the public interest.” Id.

7 at 20; see also All. For the Wild Rockies v. Cottrell, 632 F.3d 1127, 1135 (9th Cir. 2011).

8 “But if a plaintiff can only show that there are ‘serious questions going to the merits’ – a

9 lesser showing than likelihood of success on the merits – then a preliminary injunction

10 may still issue if the ‘balance of hardships tips sharply in the plaintiff’s favor,’ and the

11 other two Winter factors are satisfied.” Shell Offshore, Inc. v. Greenpeace, Inc., 709

12 F.3d 1281, 1291 (9th Cir. 2013) (quoting All. For the Wild Rockies, 632 F.3d at 1135).

13 “Serious questions need not promise a certainty of success, nor even present a probability

14 of success, but must involve a ‘fair chance of success on the merits.’” Cascadia

15 Wildlands v. Scott Timber Co., 715 F. App’x 621, 624-25 (9th Cir. 2017) (quoting

16 Republic of the Philippines v. Marcos, 862 F.2d 1355, 1362 (9th Cir. 1988)).

17 III. Article III Standing.

18

Defendants and the United States argue that Plaintiff lacks standing to challenge

19 the Sheriff’s detainer policy because he has not been injured by it. See Doc. 41 at 12-14.

20 They argue that Plaintiff’s current detention results from his DUI charge and his failure to

21 post bail, not from Defendants’ policy. They assert that any future detention under

22 Defendants’ policy is merely speculative. The Court does not agree.

23

“In order to invoke the jurisdiction of the federal courts, a plaintiff must establish

24 ‘the irreducible constitutional minimum of standing,’ consisting of three elements: injury

25 in fact, causation, and a likelihood that a favorable decision will redress the plaintiff’s

26 alleged injury.” Lopez v. Candaele, 630 F.3d 775, 785 (9th Cir. 2010) (citing Lujan v.

27 Defenders of Wildlife, 504 U.S. 555, 560-61 (1992)). The injury in fact must constitute

28 “an invasion of a legally protected interest which is (a) concrete and particularized, and

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1 (b) actual or imminent, not conjectural or hypothetical.” Lujan, 504 U.S. at 560 (citations

2 omitted). At the preliminary injunction stage, a plaintiff must make “a clear showing of

3 each element of standing.” Townley v. Miller, 722 F.3d 1128, 1133 (9th Cir. 2013).

4

The injury Plaintiff alleges is not his current detention – it is the 48-hour detention

5 he will face under the ICE detainer if he posts bail. The Supreme Court has explained

6 that an “allegation of future injury may suffice if the threatened injury is ‘certainly

7 impending,’ or there is a ‘substantial risk’ that the harm will occur.” Susan B. Anthony

8 List v. Driehaus, 134 S. Ct. 2334, 2341 (2014) (citation omitted). Plaintiff’s future injury

9 is “certainly impending.” Defendants’ written policy mandates that he be detained for up

10 to 48 hours if CCDF has received an ICE detainer and warrant. Doc. 18-1. CCDF has

11 received these documents and placed them in Plaintiff’s file, and CCDF staff members

12 have twice confirmed that CCDF will hold Plaintiff on the detainer if bail is posted.

13

At oral argument, Defendants relied on Clapper v. Amnesty International USA,

14 568 U.S. 398 (2013), and argued that Plaintiff’s injury is dependent on a chain of

15 speculative future events because ICE might withdraw the detainer request, choose not to

16 act on it, or act quickly so that Plaintiff’s detention is not extended beyond his state

17 release time. In Clapper, there was no concrete indication that the challenged statute

18 would actually be used against the plaintiffs. Rather, the plaintiffs’ injury depended on a

19 “highly attenuated chain of possibilities” that required multiple independent actors to take

20 actions within their discretion. 568 U.S. at 410-14. Here, every action necessary to

21 trigger Plaintiff’s injury has been taken: ICE has submitted a detainer and warrant to

22 CCDF, CCDF has placed the documents in Plaintiff’s file, and CCDF has a written policy

23 to detain Plaintiff if he posts bail. The mere possibility that ICE might somehow change

24 its mind or act quickly does not render Plaintiff’s imminent injury unduly speculative.

25 As the Supreme Court has explained, when an individual is subject to threatened

26 enforcement of a law, “an actual arrest, prosecution, or other enforcement action is not a

27 prerequisite to challenging the law.” Driehaus, 134 S. Ct. at 2342. Other cases are in

28 accord. See, e.g., Steffel v. Thompson, 415 U.S. 452, 459 (1974) (“[I]t is not necessary

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1 that petitioner first expose himself to actual arrest or prosecution to be entitled to

2 challenge a statute that he claims deters the exercise of his constitutional rights”);

3 MedImmune, Inc. v. Genentech, Inc., 549 U.S. 118, 128-29 (2007) (“[W]here threatened

4 action by government is concerned, we do not require a plaintiff to expose himself to

5 liability before bringing suit to challenge the basis for the threat – for example, the

6 constitutionality of a law threatened to be enforced.” (emphasis in original)).

7

Plaintiff has shown that his future injury is concrete, particularized, and imminent,

8 not conjectural or hypothetical. Plaintiff presents undisputed evidence that he stands

9 ready to post bail or have someone post bail on his behalf, and it is clear that he will be

10 held under the ICE detainer when that occurs. The injury results from Defendants’

11 detainer policy and is therefore fairly traceable to their conduct, and would be redressed

12 by an injunction prohibiting Defendants from detaining him based on the ICE detainer

13 and warrant. Plaintiff has standing.

14 IV. Likelihood of Success on the Merits.

15

Plaintiff makes three merits arguments. See Docs. 14, 51. First, he asserts that the

16 Sheriff lacks authority under state law to make arrests for federal civil immigration

17 violations. Second, he argues that federal law prohibits the Sheriff from complying with

18 the ICE detainer. Third, he argues that detaining him under the federal detainer and

19 warrant would violate the Fourth Amendment and a corresponding provision of the

20 Arizona Constitution. In addressing these arguments on a preliminary injunction motion,

21 the Court’s task is to assess probabilities – whether Plaintiff is likely to succeed on these

22 claims. The Court is not making a final decision on the merits. That decision must await 23 a more complete record and more thorough briefing.1

24

A. State Law Authority.

25

The parties present competing interpretations of Arizona law. Plaintiff argues that

26 county sheriffs in Arizona may act only when expressly authorized by statute, and that no

27

28

1 Plaintiff makes a lengthy preemption argument in his reply memorandum (Doc. 51), but the Court will not consider arguments raised for the first time in a reply

brief. Lentini v. Cal. Ctr. for the Arts, 370 F.3d 837, 843 n. 6 (9th Cir. 2004).

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1 statute authorizes the Sheriff to make civil immigration arrests. Defendants argue that

2 Arizona sheriffs retain broad common law enforcement authority except where modified

3 by statute, and that detaining Plaintiff under the federal detainer falls well within this

4 power. Both sides rely on older Arizona cases to support their position.

5

1. Common Law.

6

Plaintiff argues that Arizona sheriffs lack common law powers and may act only

7 when a statute expressly grants them authority. Article XII, § 4 of the Arizona

8 Constitution states that the “duties, powers, and qualifications” of various county officers,

9 including sheriffs, “shall be as prescribed by law.” Plaintiff relies heavily on Arizona

10 State Land Dep’t v. McFate, 348 P.2d 912 (Ariz. 1960), which interpreted similar

11 language in Article V, § 9 and held that “prescribed by law” means “the statutory law of

12 the State and not the common law.” Id. at 914.

13

McFate concerned the powers of the Arizona attorney general. The Arizona

14 Supreme Court had previously held that “‘in Arizona the Attorney General has no

15 common-law power.’” Id. (quoting Westover v. State, 185 P.2d 315, 318 (Ariz. 1947)).

16 In the absence of common law power, the Supreme Court in McFate held that the

17 attorney general possesses only those powers conferred by the Arizona legislature. Id.;

18 see also Shute v. Frohmiller, 90 P.2d 998, 1003 (Ariz. 1939), overruled in part by

19 Hudson v. Kelly, 263 P.2d 362 (Ariz. 1953) (“no common-law powers or duties can

20 attach to [the attorney general’s] office but only those prescribed by statute”). Because

21 Article XII, § 4 – the portion of the Arizona Constitution that addresses sheriffs –

22 contains the same “prescribed by law” language as the attorney general provisions in

23 Article V, § 9, Plaintiff argues that sheriffs also possess only powers prescribed by

24 statute.

25

This is a credible argument, and it appears to be consistent with a number of

26 Arizona cases. But it also appears to be contradicted by the Arizona Supreme Court’s

27 decision in Merrill v. Phelps, 84 P.2d 74 (Ariz. 1938). That case directly addressed the

28

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1 power of county sheriffs in Arizona. The Supreme Court engaged in a fairly detailed

2 discussion of the common law powers of sheriffs in England and reached this conclusion:

3

The common law of England, so far as applicable to our circumstances and

4

conditions, is the law of Arizona. The power exercised by the sheriff

under the common law still pertains to our sheriff, except in so far as it has

5

been modified by constitutional and statutory provisions.

6

7 Id. at 76 (citations omitted). This language clearly states that Arizona sheriffs possess

8 common law powers, and that those powers can be “modified” by the legislature. Merrill

9 goes on to discuss various Arizona statutes and finds that they impose on sheriffs the

10 duties that were at issue in the case. Id. at 76-78.

11

Both sides cite Merrill. Defendants and the United States rely on its statement that

12 sheriffs retain common law powers. They argue that this includes authority to arrest and

13 detain for both criminal and civil offenses, and to cooperate with other sovereigns.

14 Doc. 28 at 7-13 (citing, e.g., 70 Am. Jur. 2d Sheriffs, Police, and Constables § 31

15 (“Common law duties are many and varied and encompass more than traditional law

16 enforcement.”)); Doc. 41 at 20-22. Plaintiff, by contrast, contends that Merrill ultimately

17 looked to Arizona statutes for its decision, showing that the powers of sheriffs must be

18 found in statutes. Both readings are plausible, but the Court notes that Merrill’s express

19 statement that sheriffs retain common law powers stands in direct contrast to the

20 statements in McFate and related cases that the Arizona attorney general does not possess

21 common law powers. McFate, 348 P.2d at 914. This contrast suggests that there may be

22 a difference between the sources of power for the attorney general and sheriffs,

23 something the parties have not fully briefed.

24

Plaintiff cites an even older case, Weidler v. Arizona Power Co., 7 P.2d 241 (Ariz.

25 1932), that addressed the duties of county treasurers. Those duties are set forth in the

26 same constitutional article as county sheriffs – Article XII, § 4. But Weidler devotes only

27 two sentences to the issue, stating in conclusory language that because the treasurers’

28 duties are “as prescribed by law,” courts must “look to the statute for such duties, and

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1 nothing not contained therein or reasonably to be implied from its terms can be held to be

2 an official duty of the county treasurer.” Id. at 242. Weidler does not discuss whether

3 county sheriffs retain common law powers, and was decided six years before Merrill. If

4 Weidler had announced a rule that Article XII, § 4 strips all county officers of their

5 common law authority, Merrill presumably would have had no need to analyze this issue

6 and would not have stated that the “power exercised by the sheriff under the common law

7 still pertains to our sheriff[.]” Merrill, 84 P.2d at 76. The Court does not find Weidler to

8 be persuasive authority in support of Plaintiff.

9

Plaintiff also points to a Ninth Circuit case, Gonzales v. City of Peoria, 722 F.2d

10 468, 477 (9th Cir. 1983), overruled on other grounds by Hodgers-Durgin v. de la Vina,

11 199 F.3d 1037 (9th Cir. 1999). Gonzales held that Arizona law enforcement officers

12 could arrest persons for criminal violations of the federal Immigration and Nationality

13 Act (“INA”). In dicta, and without citation to any Arizona authority, Gonzales also

14 stated that “this authorization is limited to criminal violations” and the “[a]rrest of a

15 person for illegal presence would exceed the authority granted [to the City of Peoria]

16 police by state law.” Id. at 476. The Court does not find this unsupported dicta to be

17 persuasive authority for Plaintiff’s position.

18

Both sides also attempt to invoke general principles. Plaintiff notes that “[t]he law

19 is very jealous of the liberty of the individual, and while peace officers in the discharge of

20 their duties must not be obstructed or interfered with, they may not lawfully deprive a

21 citizen of his liberty except in the manner provided by law.” Platt v. Greenwood, 69 P.2d

22 1032, 1036 (1937). Defendants note that “[p]rison administration is . . . a task that has

23 been committed to the responsibility of [the legislative and executive] branches, and

24 separation of powers concerns counsel a policy of judicial restraint.” Turner v. Safley,

25 482 U.S. 78, 85 (1987); see also Arpaio v. Baca, 177 P.3d 312, 321 (Ariz. Ct. App. 2008)

26 (courts have limited authority to interfere with a sheriff’s duties to maintain and operate

27 the county jails). These general provisions provide helpful context, but they do not,

28

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1 without a more thorough exploration of the relevant common law, constitutional, and

2 statutory provisions, provide a clear rule of decision at this stage of the litigation.

3

In short, both sides cite relevant authority, but the most salient cases are somewhat

4 ambiguous and more than 50 years old. The parties have not briefed the history of the

5 constitutional provisions at issue, the intent of the drafters, or the common law roots of

6 the various offices covered by the provisions. Plaintiff’s arguments clearly raise serious

7 questions for the Court’s consideration, but the Court cannot conclude that he is likely to

8 succeed on the merits.

9

2. Statutory Authority.

10

Given the present uncertainty concerning the common law powers of Arizona

11 sheriffs, the parties’ statutory arguments are not of much help. Plaintiff cites no statute

12 that expressly restricts a sheriff from cooperating with federal immigration authorities.

13 To the contrary, the Arizona legislature has stated a preference for such cooperation in

14 S.B. 1070, as will be discussed below. Thus, if Merrill is to be taken at its word – that

15 sheriffs possess common law powers except to the extent modified by the legislature –

16 Plaintiff has identified no express modification that would prevent Defendants from

17 cooperating with the ICE detainer and warrant.

18

Plaintiff cites statutes that govern procedures for enforcing warrants issued by

19 another county or state and notes that no statute addresses the procedure for responding to

20 federal administrative warrants. See Doc. 14 at 4 (citing A.R.S. §§ 13-3964, 13-3841, et

21 seq.; Ariz. R. Crim. P. 4.1(c)(2)). Plaintiff notes that Arizona statutes outline the sheriff’s

22 authority to make warrantless and unilateral arrests in the criminal context and in some

23 civil contexts, but that no statute authorizes such arrests for civil immigration violations.

24 Doc. 51 at 4-5 (citing A.R.S. § 13-3883(1), (2), (4) (warrantless criminal arrests);

25 § 36-525(B) (psychiatric commitment); § 8-303(C) (juvenile delinquents and runaways);

26 § 36-2026(A) (emergency intoxication commitment)). Again, however, these arguments

27 are helpful only if the sheriff lacks common law power to detain Plaintiff.

28

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1

Defendants and the United States argue that a number of Arizona statutes

2 authorize the sheriff to comply with ICE detainers (see Doc. 28 at 9-13; Doc. 41

3 at 22-24), but none of the statutes appears to support this assertion. Defendants cite a

4 statute requiring the sheriff to arrest for “public offenses.” Doc. 28 at 9 (citing A.R.S.

5 § 11-441(A)(2)). But the purpose of that duty is “the prompt and orderly administration

6 of criminal justice.” State v. Monaco, 83 P.3d 553, 558 (Ariz. Ct. App. 2004) (emphasis

7 added). Defendants cite statutes authorizing the sheriff to “take charge of and keep the

8 county jail,” A.R.S. §§ 11-441(A)(5), “execute all process and orders regular on their

9 face and issued by competent authority,” A.R.S. § 11-447, “arrest a person who is already

10 incarcerated” in the county jail, A.R.S. § 13-3907, and serve civil writs, A.R.S.

11 § 12-1574. But these statutes do not expressly authorize the Sheriff to continue detention

12 at the request of a federal agency.

13

Defendants cite A.R.S. § 31-122(A), which provides that “[t]he sheriff may

14 receive and keep in the county jail any prisoner committed thereto by process or order

15 issued under the authority of the United States.” This appears to be the most relevant

16 statute, but the Court needs further briefing on the scope of this statute and what is meant

17 by “process or order.”

18

Defendants argue that they are authorized to hold inmates on ICE detainers

19 pursuant to their intergovernmental service agreement with the federal government

20 (“IGSA”), on which ICE is an authorized rider. Doc. 28 at 10-11. The IGSA is an

21 agreement for housing federal inmates and receiving reimbursement from the federal

22 government, but Defendants point to nothing in it that purports to grant them authority to

23 make arrests on behalf of the federal government. Indeed, Defendants and the United

24 States appear to have different understandings of how the IGSA functions in the context

25 of ICE detainers. Compare Doc. 28 at 10-11 (“[O]nce the ICE detention period begins,

26 an inmate is no longer in Defendants’ custody, but the custody of the federal

27 government.”), with Doc. 41 at 5-6 (“Until an immigration officer – or a state or local

28 officer who has been delegated immigration officer authority under a 287(g) agreement –

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1 arrests the detainee, the IGSA is not triggered, and the detainee remains in state

2 custody.”).

3

Defendants and the United States point to A.R.S. § 11-1051, commonly referred to

4 as S.B. 1070, as supplying the sheriff’s authority. Doc. 28 at 11-13; Doc. 41 at 22. The

5 Arizona legislature enacted S.B. 1070 in 2010 to address the “compelling interest in the

6 cooperative enforcement of federal immigration laws throughout all of Arizona.”

7 Laws 2010, Ch. 113, § 1. Its purpose is to “discourage and deter the unlawful entry and

8 presence of aliens and economic activity by persons unlawfully present in the United

9 States.” Id. Originally, S.B. 1070 authorized state and local officers to make unilateral

10 warrantless arrests if they had probable cause to believe a person committed a public

11 offense that made the person removable. In Arizona v. United States, 567 U.S. 387

12 (2012), the Supreme Court held that this portion of the statute was preempted.

13 Defendants do not appear to dispute that even if this portion were still in effect, it would

14 not authorize the detentions at issue in this case.

15

The statute states that “[n]o official or agency of this state or a county, city, town

16 or other political subdivision of this state may limit or restrict the enforcement of federal

17 immigration laws to less than the full extent permitted by federal law.” A.R.S.

18 § 11-1051(A). Defendants argue that this language expressly authorizes Arizona sheriffs

19 “to comply with the enforcement of federal immigration law.” Doc. 28 at 13. But the

20 cited language is stated in terms of a prohibition: state and local officers may not limit

21 the enforcement of federal immigration laws; it does not appear to be an affirmative grant

22 of authority. The statute clearly establishes a strong state policy in favor of cooperating

23 with federal immigration authorities, but it does not appear to supply the express 24 authorization Plaintiff claims is necessary.2

25

26

2 The parties each rely on cases from other jurisdictions addressing the authority of state officials to comply with ICE detainers. See, e.g., Lunn v. Commonwealth, 78

27

N.E.3d 1143 (Mass. 2017); City of El Cenizo, Texas v. Texas, 890 F.3d 164, 173 (5th Cir. 2018). But none is directly on point. In City of El Cenizo, Texas had enacted a

28

statute that required local officers to cooperate with ICE detainers. 890 F.3d at 174. In Lunn, Massachusetts case law indicated that its law enforcement officers had no authority

to arrest generally for civil matters. Lunn, 78 N.E.3d at 1154-56. Neither addresses

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1

3. Serious Questions.

2

Plaintiff’s arguments raise serious questions that require further litigation, but the

3 Court cannot conclude that he is likely to succeed on his claim that Defendants lack

4 authority under state law to detain individuals based on civil immigration offenses. The

5 Court will consider below whether these serious questions are sufficient to support a

6 preliminary injunction.

7

B. Federal Authority.

8

Plaintiff claims that Defendants’ conduct is prohibited by the INA because

9 Defendants have not entered into a § 287(g) agreement with the federal government. See

10 Doc. 51 at 11-17. Section 287(g) of the INA, codified at 8 U.S.C. § 1357(g), allows DHS

11 to enter into formal written agreements with state and local governments to “perform a

12 function of an immigration officer in relation to the investigation, apprehension, or

13 detention of aliens in the United States.” 8 U.S.C. § 1357(g)(1). State officials

14 empowered under § 287(g) agreements are subject to DHS’s supervision, and they must

15 have knowledge of federal law and receive adequate training. § 1357(g)(2), (3). Citing

16 these provisions, Plaintiff argues that the Sheriff cannot detain aliens for immigration

17 violations – a “function of an immigration officer” – because the Sheriff has not entered

18 into a § 287(g) agreement. Doc. 51 at 11-17.

19

Defendants argue that they have authority to comply with ICE detainers pursuant

20 to § 1357(g)(10), which states:

21

Nothing in this subsection shall be construed to require an agreement under

22

this subsection in order for any officer or employee of a State or political

subdivision of a State--

23

24

(A) to communicate with the Attorney General regarding the

immigration status of any individual, including reporting knowledge

25

that a particular alien is not lawfully present in the United States; or

26

27

28 Arizona law.

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1

(B) otherwise to cooperate with the Attorney General in the

2

identification, apprehension, detention, or removal of aliens not

lawfully present in the United States.

3

4 8 U.S.C. § 1357(g)(10). Specifically, Defendants argue that complying with ICE

5 detainers constitutes permissible “cooperation” with “detention” under § 1357(g)(10)(B).

6 Doc. 28 at 7-8.

7

Both parties cite the United States Supreme Court’s Arizona decision to support

8 their respective interpretations of “cooperate.” Arizona was a preemption case. In

9 finding that the portion of S.B. 1070 granting state officers independent and warrantless

10 arrest power was preempted as an obstacle to the federal scheme, the Supreme Court

11 explained: “There may be some ambiguity as to what constitutes cooperation under the

12 federal law; but no coherent understanding of the term would incorporate the unilateral

13 decision of state officers to arrest an alien for being removable absent any request,

14 approval, or other instruction from the Federal Government.” 567 U.S. at 410. The

15 Court also noted that DHS provided the following examples of activities that would

16 constitute cooperation under § 1357(g)(10)(B): “situations where States participate in a

17 joint task force with federal officers, provide operational support in executing a warrant,

18 or allow federal immigration officials to gain access to detainees held in state facilities.”

19 Id. Arizona concerned unilateral arrests by state law enforcement officers – arrests for

20 immigration offenses made without a request, approval, or other instruction from the

21 federal government. Id. It did not address the question presented in this case: whether

22 the INA prohibits state officials from detaining an unauthorized immigrant at the request

23 of federal immigration authorities.

24

In any event, the Court is not persuaded at this stage that § 1357(g) prohibits

25 Defendants from complying with detainers. Defendants’ policy does not authorize

26 Sheriff officers to unilaterally investigate, apprehend, or detain persons for immigration

27 violations. Rather, it authorizes the Sheriff to cooperate with a request from ICE to

28 detain a specific inmate already in the Sheriff’s custody, whom ICE has independently

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1 determined is removable, for a short period to facilitate ICE’s apprehension of the

2 individual. This conduct appears to fall within § 1357(g)(10)(B). Plaintiff has not shown

3 a likelihood of success on this claim.

4

The Court also has a general concern about the parties’ arguments. Plaintiff

5 argues that continuing to hold an individual on the basis of an immigration detainer after

6 the state-law justification has expired constitutes a new arrest, and proceeds to address

7 Defendants’ actions entirely in the context of arrests. While the Court does not

8 necessarily disagree with Plaintiff’s premise – that continued detention is tantamount to

9 an arrest – the Court sees at least some meaningful difference between a unilateral arrest

10 by a sheriff’s officer and continued detention on the basis of a federal warrant. In the

11 former, the officer is acting entirely on his own authority and on the basis of his own

12 judgment and investigation. In the latter, the officer is acting on the probable cause

13 determination of a federal officer empowered and trained to make such determinations.

14 The extent and significance of this distinction will need to be explored further in this

15 litigation, but it is noteworthy that all of the authorities relied on by Plaintiff address

16 unilateral arrests by state officers. These include the cases cited by Plaintiff, including

17 Gonzales, Plaintiff’s arguments regarding the need for training and supervision of state

18 officers under § 287(g) agreements, and Plaintiff’s arguments regarding 8 U.S.C.

19 § 1252c. Defendants also primarily cite statutes and cases dealing with unilateral arrests.

20 This focus undoubtedly is due to a lack of authority addressing the specific issue in this

21 case, but future briefing should consider and address the differences between unilateral

22 arrests and continued detentions on the basis of federal warrants.

23

C. Fourth Amendment.

24

Even if the Sheriff is authorized by state law to comply with ICE detainers,

25 Plaintiff claims that such compliance would violate the Fourth Amendment. But Plaintiff

26 cites no case holding that federal immigration officers violate the Fourth Amendment

27 when they arrest persons based on probable cause to believe they are removable under

28 federal law, and if such arrests do not violate the Fourth Amendment when made by

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1 federal officers, they do not violate the Fourth Amendment when made by state officers.

2 The same Fourth Amendment applies to both, and Plaintiff concedes that the parallel

3 provision of the Arizona Constitution, Article II, § 8, is “coextensive with” the Fourth

4 Amendment in all aspects relevant to this case. Doc. 14 at 5.

5

Plaintiff makes two specific arguments as to why his detention under the ICE

6 detainer would violate the Fourth Amendment: (1) it is not supported by probable cause

7 to believe a criminal violation has occurred, and (2) probable cause must be determined

8 by a judge, not an ICE enforcement officer. Doc. 14 at 6-8, 12-13. Neither argument is

9 likely to succeed or raises serious questions.

10

1. Probable Cause of Removability Is Sufficient.

11

Plaintiff asserts that all arrests must be “based on probable cause to believe that

12 the individual has committed a crime.” Doc. 14 at 6 (quoting Bailey v. United States, 568

13 U.S. 186, 192 (2013)). This certainly is the general rule in the criminal context, Bailey,

14 568 U.S. at 192, but arrests for civil reasons are also constitutionally permissible. See,

15 e.g., Maag v. Wessler, 960 F.2d 773, 776 (9th Cir. 1991), as amended on denial of reh’g

16 (Apr. 1, 1992) (upholding arrest based on probable cause of danger due to serious mental

17 illness); United States v. Phillips, 834 F.3d 1176, 1181 (11th Cir. 2016) (“The Fourth

18 Amendment does not require warrants to be based on probable cause of a crime, as

19 opposed to a civil offense. Nothing in the original public meaning of ‘probable cause’ or

20 ‘Warrants’ excludes civil offenses.”) (collecting cases).

21

Arrests based on probable cause of removability – a civil immigration violation –

22 have been long recognized in the courts. See Abel v. United States, 362 U.S. 217, 230

23 (1960) (“Statutes authorizing administrative arrest to achieve detention pending

24 deportation proceedings have the sanction of time.”); City of El Cenizo, Texas v. Texas,

25 890 F.3d 164, 187 (5th Cir. 2018) (“It is undisputed that federal immigration officers

26 may seize aliens based on an administrative warrant attesting to probable cause of

27 removability.”) (emphasis in original). And Plaintiff does not dispute that his ICE

28 warrant is based on probable cause to believe that he is a removable alien.

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1

2. A Judicial Warrant Is Not Required.

2

The INA expressly authorizes ICE to arrest and detain aliens pending removal

3 decisions “on a warrant issued by the Attorney General.” See 8 U.S.C. § 1226. It does

4 not require judicial approval of the warrant. The Supreme Court noted more than 50

5 years ago that there is “overwhelming historical legislative recognition of the propriety of

6 administrative arrest for deportable aliens.” Abel, 362 U.S. at 233. Plaintiff cites no

7 authority suggesting that ICE must seek judicial warrants in order to arrest individuals 8 suspected of being removable.3

9 V. Injunctive Relief.

10

Because Plaintiff has raised serious questions about whether Defendants’ actions

11 are authorized under Arizona law, he may obtain a preliminary injunction if the balance

12 of hardships tips sharply in his favor. Shell Offshore, Inc., 709 F.3d at 1291. Forty-eight 13 hours of unauthorized detention would impose a significant hardship on Plaintiff.4 But

14 Defendants would also face serious hardship if the Court ordered them to refrain from

15 complying with ICE detainers. The injunction would interfere with their judgment as

16 elected officials, would interfere with the Arizona legislature’s policy determination in

17 S.B. 1070 that Arizona should cooperate with federal immigration enforcement, and

18 might interfere with Arizona’s interest in preventing unlawful immigration, as recognized

19 by the Supreme Court. See Arizona, 567 U.S. at 397-99.

20

Because both sides would face hardship if the Court ruled against them, the Court

21 cannot find that the balance tips sharply in Plaintiff’s favor. As a result, Plaintiff cannot

22

23

3 The Court also notes that probable cause in a particular case can be established 24 on the basis of the collective knowledge of all law enforcement officers involved,

25

provided there is communication among the officers. United States v. Villasenor, 608 F.3d 467, 475 (9th Cir. 2010); United States v. Ramirez, 473 F.3d 1026, 1032-33 (9th Cir.

26

2007). Thus, state officers may act on valid probable cause determinations by federal officers. See United States v. Martin Takatsy, et al., No. CR-17-08163-PCT-DGC, 2018

27 WL 3221598, at *6-8 (D. Ariz. July 2, 2018).

28

4 Plaintiff claims that he will suffer irreparable harm from a violation of his constitutional rights, but, for reasons explained above, he has not raised serious questions

on his Fourth Amendment claim.

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1 obtain preliminary injunctive relief on the basis of the serious questions of state law he

2 has raised.

3

IT IS ORDERED that Plaintiff’s motion for a preliminary injunction (Doc. 14) is

4 denied.

5

Dated this 5th day of July, 2018.

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