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1 PETERJ. ELIASBERG, SBN 189110

peliasberg@ac1u-sc.org

2 3 4

AHILAN A:RULANANTHAM, SBN 237841 aaru1anantham@,aclu-sc.org PETER BIBRI:t\rG SBN 223981 p_bibring@aclu-sc:org J_ENNIFE'R PASQUARELLA, SBN 263241 Jpasquarella@,aclu-sc.org

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ACLU FOlJN1JATION 1313 W. 8th Street

OF

SOUTHERN

CALIFORNIA sv-~-------------------

6 Los Angeles, CA 900 17 Phone: (213J 977-9500
7 Facsimile: (213) 977-5299

8 BARRETT S. LITT, SBN 45527 blitt@,littlaw.com
9 LINDSAY B. BATTLES, SBN 262862 lbattles@,littlaw.com
10 LITT ES'TUAR & KITSON, LLP 1055 Wilshire Boulevar<k Suite 1880
11 Los Angeles, California y0017 Telephone: (213) 386-3114
12 Facstmile: (213) 380-4585

13 Attorneys for Plaintiffs (continued on next page)

14

UNITED STATES DISTRICT COURT 15

CENTRAL DISTRICT OF CALIFORNIA

16

cANN£V 17 DUNCAN ROY; ALAIN MARTINEZ-

12-901 z--£-1(

18 19

PEREZ, on behalf of himself and others similarly situated; ANNIKA ALLIKSOO, on behalf of herself and others similarly situated· CLEMENTE DE LA CERDA,

COMPLAINT FOR INJUNCTIVE'-~--, AND DECLARATORY RELIEF { 11

-:;m
rr;q

,

AND DAMAGES

-

l

on behalf of himself and others similarly

20 situated; and CHRISTIAN MICHEL

VARELA, on behalf of himself and

21 others similarly situated,

22

Plaintiffs,

23

vs.

24 COUNTY OF LOS ANGELES; LEROY D. BACA, Sheriff of Los Angeles
25 County, in his official capacity,

26

Defendants.

27

28

1 0~1AR C. JADWAT (pro hac vice application forthcoming) OJadwat@aclu.org
2 AMERICAN CIVIL LIBERTIES UNION FOUNDATION IMMIGRANTS' RIGHTS PROJECT
3 125 Broad Streetd8th Floor New York, New r ork 10004
4 Telephone: (212) 549-2660 5 KATHERINE DESORMEAU, SBN 266463
(application .for admission forthcoming) 6 kdesormeau@aclu.OrE
CECILLIAD. WANG, SBN 187782 7 cwang@aclu.org_
AMER1CAN CIVIL LIBERTIES UNION FOUNDATION 8 IMMIGRANTS' RIGHTS PROJECT
39 Drumm Street 9 San Francisco, California 94111
Telephone: (415) 343-0775 10
CHRIS NEWMAN, SBN 255616 11 newman@ndlon.org
JESSICA1<ARP, SBN 277347 12 jkam@ndlon.org
NATIONAL DAY LABOR ORGANIZING NETWORK 13 675 S. Park View Street, Suite B
Los Angeles~ California 90057 14 Telephone: 213) 380-2785
Facs1mile: ( 13) 380-2787 15 16 17 18 19 20 21 22 23 24 25 26 27 28

1 I. INTRODUCTION

2

A. The Challenged Practices

3

1. This case challenges the legality of two practices of the Los Angeles

4 County Sheriffs Department: (1) denying bail to thousands of people who want to

5 post bail and have already obtained a court order setting bail purely on the ground 6 that the federal government has placed an "immigration hold" on them; 1 and (2)

7 denying them release from Los Angeles County jail for 48 hours or more on the

8 basis of the immigration hold, even though all charges against them have been

9 dismissed, they have been acquitted of the charge for which they were being held,

10 they were ordered released, or they have served their sentence. These practices

11 violate state law, as well as the Fourth and Fourteenth Amendments to the U.S.

12 Constitution, and their state law analogues (Cal. Constitution, Articles 1, 7, and

13 13). This Court has jurisdiction under 28 U.S.C. §§ 1331, 1343, 1367, and 2201-

14 02, and Article III ofthe U.S. Constitution. Venue is proper under 28 U.S.C. §

15 139l(b)(2).

16

2. "In our society liberty is the norm, and detention prior to trial or

17 without trial is the carefully limited exception." U.S. v. Salerno, 481 U.S. 739, 755

18 (1987). Yet the Los Angeles County Sheriffs Department and Sheriff Leroy Baca

19 have turned these norms upside down by detaining tens of thousands of individuals

20 subject to so-called "immigration holds" (also known as "immigration detainers"

21 or "ICE holds"), beyond the time that state law mandates that they be released.

22

23 1 Prior to filing this complaint, the LASD responded to a letter from Plaintiffs'

24 counsel and stated that it was not their intention to deny inmates with ICE holds

25

the opportunity to post bail on their state law charges. LASD further agreed to 1) promulgate a policy that makes clear that the existence of an ICE hold does not

26 provide a basis to prevent the posting of bail on any pending criminal charge, and

27

2) notify LASD employees of this policy, and 3) review its database systems to determine whether they could modify the "no bail" notation it places on the files of

28 persons with immigration holds.

1

1

3. Although these inmates are presumed to be innocent and are eligible

2 for bail, LASD has, until this week, forced them to languish in jail while they await

3 trial- at the cost of their jobs, their reputations, and their family and community

4 ties. This prolonged pretrial detention also coerces many to take plea deals they

5 would not otherwise accept because it is the only way to secure their rapid release

6 fromjail.

7

4. In addition, LASD has unlawfully incarcerated, and continues to

8 unlawfully incarcerate, many thousands more individuals for days beyond their

9 release date after any state law basis for their custody has expired, because they

10 have been ordered released on their own recognizance, they have served their

11 sentences, their charges have been dropped, or they have been found not guilty

12 solely on the purported authority ofthe immigration holds. LASD subjected

13 19,725 individuals to such unlawful continued detention in 2011 alone.

14

B. These Two Practices are not only Illegal, but are also Bad Policy

15

in Light of the Capacity Constraints of the County Jails

16

5. On any given day, there are approximately 2,100 inmates in the Los

17 Angeles County Jails who have immigration holds (or 14% of the total jail

18 population). See James F. Austin, et al., "Evaluation of the Current and Future Los

19 Angeles County Jail Population," at page 21, Table 10, available at

20 http://www.aclu-sc.org/issues/prisoners-rights/jails-project!austin-report! (hereafter

21 "Austin").

22

6. Approximately 43% of the inmates who will be released to ICE are

23 classified as "low custody," strongly suggesting that they are charged with minor

24 offenses. !d. Accordingly, many of them will have low bail. On information and

25 belief, many of them would have posted bail given the low bail amounts and been

26 released to ICE, or to the community if ICE is no longer interested in them, much

27 sooner if LASD had not denied them the opportunity to post bail.

28

7. Keeping an inmate in the County jail costs $100 to $150 per night.

2

1 The County is currently considering various measures-including expanding early

2 release options into programmed community beds, and even the drastic possibility

3 of shipping inmates to Kern County-to respond to the influx of more than 8,000

4 inmates into the L.A. County jails as a result of realignment.

5

8. Even as pressures on the jail population mount, Sheriff Baca has

6 expressed his strong desire to stop housing inmates in Men's Central Jail because it

7 is an archaic and dangerous facility. ACLU Study: Men's Central Jail Can Be

8 Shuttered By 2013, CBS Local News, AprillO, 2012, http://losangeles.

9 cbslocal.com/20 12/04/10/aclu-study-mens-central-jail-can-be-shuttered-by-20 13/.

10 The past practice of keeping inmates in jail who want to post bail, and the ongoing

11 practice of holding them for 48 hours or more after they are otherwise entitled to

12 release, is inconsistent with the County's efforts to manage its jail population and

13 close Men's Central Jail, and is a waste of taxpayer money.

14

15 II. PARTIES

16

9. Plaintiff Duncan Roy is a 52-year-old British citizen. Mr. Roy is an

17 acclaimed film director who owns a home in Malibu, California. He suffers from

18 prostate and colon cancer and requires regular monitoring to prevent recurrent

19 cancer. From November 15, 2011 to February 8, 2012, Defendants unlawfully

20 detained him for 89 days in the Lost Hills station and then in the "gay ward" of

21 Men's Central Jail by unlawfully refusing to allow him to post the bail set by the

22 court in his criminal case.

23

10. Plaintiff Alain Martinez-Perez is a 37-year-old Mexican citizen. Mr.

24 Martinez-Perez has a one and a half-year-old U.S. citizen son. He lives in

25 Claremont, California and works as a dog trainer. From December 14 to

26 December 20, 2011, Defendants unlawfully detained him for six days in City of

27 Industry station first by refusing to allow him to post bail under the judicially-

28 determined County bail schedule based on his arresting charge, and, subsequently,

3

1 by continuing to detain him solely on the basis of the immigration hold after the

2 district attorney declined to file criminal charges against him. Plaintiff Martinez-

3 Perez seeks damages on behalf of himself and all others similarly situated foi:

4 LASD's practice of refusing to honor bail (Damages Classes One and Two) and for

5 LASD's practice of prolonging detention beyond the time that state law mandates

6 release (Damages Classes Three and Four). Plaintiff Martinez-Perez also seeks

7 damages on behalf of himself and all others similarly situated for LASD's practice

8 of prolonging detention for more than 48 hours beyond the time that state law

9 mandates their release (Damages Classes Five and Six).

10

11. Plaintiff Annika Alliksoo is a 34-year-old Estonian citizen. Ms.

11 Alliksoo is married to a U.S. citizen and lives near Palmdale, California. From

12 July 12 to July 30, 2012, Defendants unlawfully detained her for 18 days in the

13 Palmdale station and then in the Lynwood Jail. Defendants first refused to allow

14 her to post bail under the judicially-determined County bail schedule and then

15 under court-ordered bail. Then, after a superior court judge ordered her released

16 on her own recognizance, Defendants continued to detain her for an additional

17 three days solely on the immigration hold. Plaintiff Alliksoo seeks damages on

18 behalf of herself and all others similarly situated for LASD' s practice of refusing to

19 honor bail (Damages Classes One and Two) and for LASD' s practice of

20 prolonging detention beyond the time that state law mandates their release

21 (Damages Classes Three and Four). Plaintiff Alliksoo also seeks damages on

22 behalf of herself and all others similarly situated for LASD's practice of

23 prolonging detention for more than 48 hours beyond the time that state law

24 mandates their release (Damages Classes Five and Six).

25

12. Plaintiff Clemente De La Cerda is a 36-year-old Mexican citizen and

26 lawful permanent resident of the United States. He is also possibly a United States

27 citizen based on acquisition at birth. He has lived in the United States since he was

28 four years old. Mr. De La Cerda lives in Brea, California. He is currently in

4

1 LASD custody and an immigration hold is lodged against him. Plaintiff De La

2 Cerda seeks injunctive and declaratory relief on behalf of himself and all 3 individuals currently in the custody of and who will in the future be in the custody

4 ofthe Defendants on the basis of the immigration hold (Equitable Relief Class). 5 On behalf of this class, he seeks to bar Defendants from prolonging the detention 6 of him and other members of the class beyond the time that state law mandates 7 release solely on the basis of an immigration hold not supported by a probable

8 cause determination.

9

13. Plaintiff Christian Michel Varela (a.k.a. Santos Beltran) is a 31-year-

10 old Mexican citizen. He is a resident of South Gate, California. He is currently in

11 LASD custody and an immigration hold is lodged against him. Plaintiff Varela

12 seeks injunctive and declaratory relief on behalf of himself and all individuals

13 currently in the custody of and who will in the future be in the custody ofthe 14 Defendants on the basis of the immigration hold (Equitable Relief Class). On

15 behalf of this class, he seeks to bar Defendants from prolonging the detention of 16 him and other members of the class beyond the time that state law mandates

17 release solely on the basis of an immigration hold not supported by a probable 18 cause determination. Plaintiff Varela also seeks injunctive and declaratory relief 19 on behalf of himself and a subclass of all individuals who are currently in the 20 custody of and who will in the future be in the custody of Defendants to bar them 21 from continuing to detain him and other members of the sub-class for more than 48

22 hours solely on the basis of the immigration hold (Equitable Relief Sub-Class).

23

14. Defendant Leroy Baca is the Sheriff of Los Angeles County. As

24 Sheriff, he is the chief executive officer of LASD. He is responsible for the

25 management and control of all Los Angeles County Jails. He is responsible for the 26 custody of all inmates housed in the County Jails and jailed at LASD field stations.

27 Plaintiffs sue SheriffBaca in his official capacity only.

28

15. Defendant County of Los Angeles is a county of the State of

5

1 California duly organized under the laws of the State of California. The Los 2 Angeles County Sheriffs Department ("LASD") is an agency of Defendant 3 County and the largest sheriffs department in the nation. It has a range of law 4 enforcement responsibilities, including the policing of various unincorporated 5 areas of the County and operating all of the County's jails and field stations.

6 SheriffBaca directs LASD's work.

7

8 III. STATEMENT OF FACTS

9

16. LASD runs the largest jail system in the nation, with an average daily

10 population of approximately 15,000 inmates. The great majority of those housed in

11 the jail are pretrial detainees. On average, 2,100 inmates per day (or 14 percent of

12 the daily jail population) have immigration holds lodged against them. These

13 inmates spend on average 20.6 days longer in Los Angeles County jails than

14 inmates without immigration holds, despite almost half of them being classified as

15 low custody, meaning they are likely being held pre-trial on low level non-violent

16 offenses and thus are, on average, better candidates for pre-trial release or other

17 diversion programs than the average inmate in the jails who does not have an

18 immigration hold.

19

17. In recent years, LASD has alone detained more individuals on

20 immigration holds for the purposes of assisting the federal government with its

21 deportation efforts than any other county in the nation, and indeed more than any

22 other state except California and Texas. It has done so absent the requisite legal

23 authority to do so in outright and reckless disregard for the detainees'

24 constitutional rights and their most basic right to liberty. And it has done so

25 despite the fact that ICE could simply obtain custody of any person subject to an

26 immigration hold at the point at which they would normally be released from

27 LASD custody, without requiring LASD to detain them unconstitutionally for an

28 additional period of time.

6

1

18. Although immigration holds are voluntary requests, as explained

2 below, as a matter of practice and policy, LASD detains every person who receives

3 an immigration hold beyond their release dates solely on the basis of the hold.

4 Indeed, in August 2012, SheriffBaca told members of the media that he was

5 mandated under federal law to detain any person for whom ICE lodges a hold,

6 despite the fact that federal law makes clear that immigration holds are not

7 mandatory but voluntary requests.

8

A. Immigration Detainers, also Known as ICE Holds

9

19. In August 2009, LASD, together with the federal immigration agency,

10 Immigration and Customs Enforcement ("ICE") ofthe Department of Homeland

11 Security ("DHS"), activated the "Secure Communities" (or "S-Comm") program in

12 Los Angeles County jails and stations. The program links the criminal justice and

13 immigration systems through the sharing of fingerprints. Under S-Comm, LASD

14 shares the fingerprints and booking information with ICE of every arrestee during

15 the booking process. An agent in ICE's Law Enforcement Support Center

16 ("LESC") checks the fingerprints against immigration and FBI databases to make 17 an immigration status determination and sends a notification to ICE's Enforcement

18 and Removal Operations unit ("ERO").

19

20. If the reviewing agent at ERO determines that ICE would like to take

20 some action with respect to the person detained, the agent sends LASD or the local

21 law enforcement agency a Form I-247, known as an "immigration detainer" or an

22 "ICE hold."

23

21. An immigration hold is an administrative notice by ICE to a local law

24 enforcement agency.

25

22. Pursuant to 8 C.F.R. § 287.7(a), the purpose of an immigration hold is

26 to "advise another law enforcement agency that [DHS] seeks custody of an alien

27 presently in the custody of that agency, for the purpose of arresting and removing

28 the alien. The detainer is a request that such agency advise [DHS], prior to release

7

1 of the alien, in order for [DHS] to arrange to assume custody, in situations when

2 gaining immediate physical custody is either impracticable or impossible."

3

23. The detainer form also states that ICE is requesting that the agency

4 hold the alien for a period of no more than 48 hours excluding Saturdays, Sundays,

5 and holidays "beyond the time when the subject would have otherwise been

6 released from your custody." 8 C.F.R. § 287.7(d) (emphasis added).

7

24. Immigration holds are issued for various reasons. The face of the

8 Form I-247lists four possible reasons for ICE to issue the hold, including that ICE

9 has "[i]nitiated an investigation to determine whether this person is subject to

10 removal from the United States;" "[i]nitiated removal proceedings and served a

11 Notice to Appear or other charging document," with the charging document

12 attached; "[s]erved a warrant of arrest for removal proceedings," with the warrant

13 attached; or "[o]btained an order of deportation or removal from the United States

14 for this person." The ICE agent may check a box next to one of these four reasons

15 to indicate the reason he or she is issuing the hold.

16

25. Upon information and belief, the box marked "initiated an

17 investigation to determine whether this person is subject to removal from the

18 United States" is checked when the agent wishes to begin an investigation to

19 determine whether the person is subject to removal. This decision is made by the

20 individual ICE agent reviewing the person's fingerprints and ICE records. Upon

21 information and belief, ICE checks the box on the I-247 form for "[i]nitiated an

22 investigation to determine whether this person is subject to removal from the

23 United States" on approximately 78% ofthe holds it issues to the LASD.

24

26. In practice, ICE agents routinely issue immigration holds for the

25 "[i]nitiat[ion of] an investigation" without probable cause to believe a person is

26 removable from the United States. An 1-247 form with the investigation box

27 checked does not indicate that there has been any prior determination by ICE (let

28 alone a neutral decisionmaker) as to the person's immigration status, and it does

8

1 not indicate that there is any warrant or court order as to the person's immigration

2 status.

3

27. Upon information and belief, ICE does not require that its agents have

4 probable cause to believe a person is removable from the United States before

5 issuing a Notice to Appear or arrest warrants, nor does ICE require that agents

6 have probable cause to believe a person is removable from the United States before

7 issuing an 1-247 detainer form with the boxes checked for arrest warrant or a

8 Notice to Appear or other charging document.

9

28. Due to ICE's failure to apply any evidentiary standards and common

10 errors in immigration databases, ICE often places immigration holds in error on

11 persons who are not subject to removal, such as United States citizens and lawful

12 permanent residents who are not subject to removal. For example, in November

13 2011, ICE placed a hold on Romy Campos, a 19-year-old U.S.-born woman who is

14 a dual citizen with the United States and Spain, simply because years prior when

15 traveling alone as a minor she had entered the country on her Spanish passport and

16 in spite of other evidence that demonstrated her U.S. citizenship. LASD detained

17 Ms. Campos for two days on the immigration hold beyond her release date despite

18 her repeated protestations that she was an American citizen.

19

29. ICE provides no meaningful way for a detainee to contest the

20 immigration hold lodged against him or her. Rather, a detainee must wait to be

21 finally transferred to immigration custody before he or she will have an

22 opportunity to demonstrate that he or she is not in fact removable and/or that he or

23 she should be released.

24

30. Pursuant to 8 U.S.C. § 1357(d), Congress authorized DHS to issue

25 immigration holds only to non-citizens in state or local custody only in those

26 circumstances where the offenses related to controlled substance violations.

27 However, ICE places holds on anyone without regard to whether or not they have

28 been charged with a controlled substance violation.

9

1

31. The implementing regulation, 8 C.P.R.§ 287.7(d), purports to

2 authorize DHS to issue immigration holds for any noncitizen regardless of the

3 underlying criminal offense.

4

32. The regulation also purports to require law enforcement agencies to

5 comply with the request, stating "[u]pon a determination by the Department to 6 issue a hold for an alien not otherwise detained by a criminal justice agency, such 7 agency shall maintain custody of the alien for a period not to exceed 48 hours,

8 excluding Saturdays, Sundays, and holidays in order to permit assumption of

9 custody by the Department." The Form I-247 immigration detainer form states:

10 "IT IS REQUESTED THAT YOU: Maintain custody of the subject for a period 11 NOT TO EXCEED 48 HOURS, excluding Saturdays, Sundays and holidays,

12 beyond the time when the subject would have otherwise been released from your 13 custody to allow DHS to take custody ofthe subject."2

14

33. ICE has privately clarified in communications with members of

15 Congress and Santa Clara County that ICE holds are voluntary requests.3

16

34. Unlike criminal detainers or holds, an immigration hold is not a

17 judicial order or a warrant. Rather, it is solely an administrative request. Although

18 it is called a detainer, it is not accompanied by the same procedural protections as

19 criminal detainers and holds.

20

35. An individual detained by LASD solely on the basis of an

21 immigration hold remains in the legal and actual custody ofLASD.

22

23

2 See http://www.ice.gov/doclib/secure-communities/pdfi'immigration-detainerform.pdf.

24 3 See Letter from David Venturella, Assistant Director, Secure Communities to

25

Miguel Marquez, Santa Clara County Counsel at 3, Aug. 16, 2010, available at http:/!media.sjbeez.org/files/2011/10/4-ICE-response-to-SCC.pdf ("ICE views an

26 immigration detainer as a request ...."); ICE Memorandum on Secure

27

Communities Briefing to Congressional Hispanic Caucus at 3, Oct. 28, 2010, available at http://bit.ly/sHibJ7 ("Local LEAs are not mandated to honor a

28 detainer, and in some jurisdictions they do not.").

10

1

36. DHS does not reimburse local law enforcement agencies for the cost

2 incurred in detaining an inmate on an immigration hold. According to 8 C.F.R. §

3 287.7(e), DHS incurs no fiscal responsibility for detention pursuant to an

4 immigration hold.

5

37. The issuance of an immigration hold does not ensure that ICE will

6 assume custody over the detainee or that ICE will take any action against the

7 detainee. ICE may or may not pick up the detainee held on the immigration

8 detainer. If ICE picks up the detainee, it may or may not initiate removal

9 proceedings against the detainee after interviewing the individual and reviewing

10 the case. In some cases, ICE may discover that the detainee is not actually

11 removable, in which case ICE will take no action and release the individual. In

12 other cases, ICE may initiate or reinstate removal proceedings against the

13 individual. Once ICE initiates proceedings, an individual who is not subject to

14 mandatory immigration detention may be eligible for release on his or her own

15 recognizance, supervised released, or bond.

16

B. LASD's Pattern and Practice of Refusing to Allow Posting of Bail

17

when an Immigration Hold has been Lodged Against an Inmate.

18

38. Until this week, LASD had a pattern and practice of refusing to allow

19 inmates admitted to bail by state law to post their bail bonds if they have an

20 immigration hold, thus preventing them from securing their release from custody

21 pending resolution of the charges against them.

22

39. The California Constitution provides a fundamental right to bail. The

23 existence of an immigration hold legally has no affect on a person's right to post

24 bail and be released from criminal custody.

25

40. Upon information and belief, LASD electronically codes every

26 immigration hold as "no bail." This coding applies to every person in LASD

27 custody, as well as to every person in the custody of police departments within Los

28 Angeles County. The "no bail" notation is placed on the record of any detainee

11

1 subject to an immigration hold, regardless of their eligibility for bail under the

2 County bail schedule or court order.

3

41. Upon information and belief, LASD jailers and bail administrators

4 have interpreted this coding to mean that they are not permitted to allow a person

5 subject to an immigration hold to post bail. As a result, they have routinely turned

6 away and refused to accept lawfully-tendered bail bonds from bail bondsmen,

7 family members and others when they attempt to lawfully post bail for an inmate.

8

42. Over the past few years, Plaintiffs' counsel have represented or

9 assisted dozens of individuals who remained in LASD custody after their LASD

10 jailers would not permit them to post bail on account of an immigration hold

11 lodged against them.

12

43. Numerous bail bondsmen have confirmed that in the overwhelming

13 majority of cases, LASD personnel at both LASD stations and at the County Jails

14 will not permit them to post bail for individuals with an immigration hold.

15

44. The California state bail agency, Golden State Bail Bonds, reported in

16 a recent memo that Los Angeles County is one county in California where its

17 members are not able to post bail if their clients have an immigration hold.

18

45. Numerous phone calls to jailers at LASD jails and stations confirm

19 that, until this week, LASD's practice was not to allow detainees with ICE holds to

20 post bail.

21

46. LASD's practice of refusing to allow detainees to post bail if they had

22 an immigration hold has affected the practice of police departments within Los

23 Angeles County as well. Upon information and belief, immigration hold

24 information is routed to police departments through LASD, and those departments

25 also rely on the LASD's "no bail" notation for ICE holds. Accordingly, most, if

26 not all, police departments in Los Angeles County follow LASD's practice of

27 refusing to allow inmates to post bail if they have an immigration hold. As a

28

12

1 result, many police stations transfer individuals to LASD custody who they

2 otherwise would have released on bail prior to their arraignment.

3

47. Unlike other "no bail holds" in the criminal system, such as parole

4 holds, there is no legal authority that permits LASD to deny a person with an ICE

5 hold the opportunity to post bail.

6

C. LASD's Continuing Pattern and Practice of Prolonging Inmates'

7

Detention Solely on the Basis of the Immigration Hold.

8

48. LASD has a continuing pattern and practice of prolonging inmates'

9 detention solely on the basis of the immigration hold after the expiration of any

10 state law authority to detain them.

11

49. LASD, as a matter of policy and practice, detains every person with

12 an ICE hold beyond their release date on the sole basis of the immigration hold.

13 Thus, LASD continues the detention of every person subject to an immigration

14 hold beyond the state-mandated release date. In other words, the LASD ignores its

15 mandatory duty under state law to release detainees subject to immigration holds

16 after, for example, no charges were filed against them, they have served the

17 entirety of their sentence, they are ordered released on their own recognizance,

18 they have posted bail, or a jury has found them not guilty of the crime with which

19 they have been charged. Most commonly, LASD continues the detention for 48

20 hours, excluding weekends and holidays. It regularly detains individuals for more

21 than 48 hours after they would otherwise be released from custody.

22

50. The LASD asks every person booked into its custody what country

23 they were born in. Upon information and belief, even when a detainee declares

24 that he or she was born in the United States, LASD nonetheless complies with the

25 immigration hold.

26 I I I

27 Ill

28

13

1

D. Plaintiffs' Allegations

2

1. Duncan Roy

3

51. On November 15, 2011, LASD arrested Mr. Roy in Malibu,

4 California on an extortion charge for threatening to blog about an allegedly 5 fraudulent real estate deal. LASD booked him into the custody of the Lost Hills

6 Station in Malibu.

7

52. After booking, Mr. Roy was eligible for release on bail at $35,000

8 according to the Los Angeles County bail schedule. Within hours of his arrest, a

9 bail bondsman traveled to the Station and attempted to post bail for him. The jailer

10 refused to accept the bond, stating that Mr. Roy was going to have an immigration

11 hold lodged on him. Hours later, ICE lodged an immigration hold. LASD coded

12 Mr. Roy's inmate information as "no bail."

13

53. The bail bondsman again attempted to post the bail bond but the jailer

14 refused to accept it, stating that he could not post bail because Mr. Roy had an ICE

15 hold.

16

54. At arraignment on the charge, a judge approved Mr. Roy's bail at the

17 $35,000 amount. Afterwards, LASD transferred him to Men's Central Jail. The

18 bail bondsman again attempted on multiple occasions and over the course of

19 multiple days to post bail for Mr. Roy, but each time LASD personnel refused to

20 allow him to post bail for Mr. Roy. LASD personnel stated that they could not

21 accept the bail bond because of the immigration hold lodged against Mr. Roy.

22

55. LASD also prevented the bail bondsman from meeting with Mr. Roy,

23 telling him that he was not permitted to visit with him because he was not

24 permitted to post bail for him.

25

56. Mr. Roy hired a criminal defense attorney and an immigration lawyer.

26 Neither of them was able to persuade LASD that it was obligated to accept Mr.

27 Roy's bail bond.

28

57. Mr. Roy was detained in the so-called "gay dorm" in Men's Central

14

1 Jail.

2

58. Mr. Roy suffers prostate and colon cancer and requires routine

3 monitoring to ensure that his cancer does not regress. Mr. Roy requested medical

4 care to check on his cancer, but LASD did not comply with his requests.

5

59. Mr. Roy also filed complaints with LASD stating that he could not

6 post bail due to the immigration hold and requesting that an ICE agent speak to

7 him so that he could tell them that the immigration hold was placed in error.

8 LASD never responded to his complaints and did not provide him an opportunity

9 to speak with an ICE agent.

10

60. After LASD held Mr. Roy in jail for 89 days, ICE lifted his

11 immigration hold on humanitarian grounds and LASD finally permitted Mr. Roy's

12 bail bondsman to post bail. Mr. Roy was released from LASD custody on

13 February 8, 2012.

14

61. Mr. Roy lost substantial income as a result of his imprisonment, and it

15 has affected his reputation. His mental and physical health also significantly

16 declined.

17

62. Plaintiff Roy seeks damages for himself and not on behalf of any class

18 for LASD's practice of refusing to honor bail. Prior to his arrest, Roy was granted

19 humanitarian immigration parole due to his ongoing cancer therapy and

20 monitoring. After his parole expired, he received an extension to remain in the

21 United States until December 23, 2011. Had he left the U.S. in compliance with

22 the deadline, he would not have incurred unlawful presence and implications for

23 his future ability to return to the United States. Though Roy booked a plane ticket

24 to return to Europe on December 23, and intended to return on that flight, he was

25 prevented from leaving because LASD refused to accept bail, unlawfully detaining

26 him until February 8, 2012. His inability to comply with his immigration

27 requirements has created barriers to his ability to be readmitted into the United

28 States.

15

1

63. As a result of the Defendants' unlawful conduct as alleged herein,

2 Plaintiff Roy suffered serious emotional distress, was not adequately treated for his

3 medical condition, and suffered lost income, profits and business opportunity.

4 Regarding the latter, at the time of his arrest, Mr. Roy was scheduled to begin 5 production on a film shortly after the date of his arrest. The film project fell apart 6 due to Roy's 89-day, unlawful imprisonment. Plaintiff Roy lost income associated 7 with the film project. He also lost rental income associated with three months of

8 lost rental bookings on the home he owns in Malibu, California because his

9 incarceration prevented him from renting his home as he normally does.

10

2. Alain Martinez-Perez

11

64. On December 14, 2011, LASD arrested Mr. Martinez-Perez about 6

12 a.m. on a domestic battery charge arising from a domestic dispute. Mr. Martinez-

13 Perez had left the house after his partner became physically violent with him.

14 Enraged, his partner called the police in an attempt to bribe Mr. Martinez-Perez to

15 come home. When the police arrived, Mr. Martinez-Perez explained that his

16 partner had in fact battered him. Nonetheless, LASD officers arrested him.

17

65. LASD booked Mr. Martinez-Perez into the Industry station. He was

18 eligible for release on bail by Los Angeles County bail schedule in the amount of

19 $20,000.

20

66. Within a matter of hours, ICE lodged an immigration hold against

21 him. LASD coded Mr. Martinez-Perez's inmate information as "no bail."

22

67. Mr. Martinez-Perez's cousin contacted a bail bondsman to post bail

23 for him. The bail bondsman attempted to post bail but LASD would not allow him

24 to post bail because of the immigration hold.

25

68. On December 16, 2011, LASD provided Mr. Martinez-Perez with a

26 certificate of release and clearance letter pursuant to California Penal Code § 849.5

27 informing him that no charges were filed against him and that his arrest shall not

28 be deemed to be an arrest but a detention only.

16

1

69. LASD did not release him, however. It maintained custody over him

2 until December 20, 2011 at 3 p.m. solely on the basis of the immigration hold. At

3 that time, ICE came and picked him up.

4

70. After interviewing him, ICE issued a Notice to Appear- a document

5 charging him with grounds of removability from the United States- and booked

6 him into immigration custody. ICE detained him at the Mira Lorna immigration

7 detention facility in Lancaster, California before Mr. Martinez bonded out of

8 immigration custody.

9

71. LASD detained Mr. Martinez-Perez for approximately two days as a

10 result of its refusal to allow him to post bail on account of the immigration hold. It

11 detained him for approximately four additional days beyond his release date solely

12 on the immigration hold.

13

3. Annika Alliksoo

14

72. On July 12, 2012, LASD arrested Ms. Alliksoo outside a Walmart in

15 Palmdale, California charging her with grand theft. LASD accused her of

16 attempting to steal groceries.

17

73. LASD booked her into custody at the Palmdale station. She was

18 eligible to be released on bail of $20,000 according to Los Angeles County bail

19 schedule. Within a matter of hours, ICE lodged an immigration hold on her.

20

74. Ms. Alliksoo's husband contacted two bail bondsmen on or about July

21 12 to post bail for her. Both bail bondsmen attempted independently to post bail

22 for Ms. Alliksoo, but LASD personnel at the Palmdale station would not allow

23 them to post bail for her due to the presence of the immigration hold.

24

75. At arraignment, the District Attorney filed a petty theft charge against

25 Ms. Alliksoo, and the court admitted her to bail at $10,000. LASD transferred her

26 to Lynwood Jail.

27

76. Once in the custody of Lynwood Jail, the bail bondsmen again

28 attempted to post bail for her but the jailer would not accept the bail bond due to

17

1 the presence of the immigration hold.

2

77. At Ms. Alliksoo's next court hearing on July 27, having already spent.

3 15 days in jail on a charge of petty theft, the judge ordered her released on her own

4 recognizance because she was not able to bail out.

5

78. LASD did not release her. Rather, they maintained custody over her

6 solely on the basis of the immigration hold until July 30.

7

79. On July 30, ICE picked Ms. Alliksoo up. After interviewing her, ICE

8 booked her into custody and issued a Notice to Appear charging her with grounds 9 of removability. Hours later, ICE released her from custody on supervised release.

10

80. LASD detained Ms. Alliksoo for approximately 15 days due to its

11 refusal to allow her to post bail due to the immigration hold. It then detained her

12 an additional three days solely on the immigration hold.

13

4. Clemente De La Cerda

14

81. On October 5, 2012, the Whittier police department arrested Plaintiff

15 De La Cerda for a probation violation and misdemeanor possession of nunchucks,

16 which the police apparently believed to be a weapon. Mr. De La Cerda uses

17 nunchucks in his TaeKwonDo practice and carried the nunchucks in his backpack

18 because he had gone to his TaeKwonDo studio earlier that day.

19

82. Upon information and belief, ICE placed an immigration hold on Mr.

20 De La Cerda shortly after he was booked into custody.

21

83. Mr. De La Cerda pled no contest to the possession ofnunchucks

22 charge. Mr. De La Cerda has an upcoming hearing on October 29, 2012 regarding

23 a probation violation. He expects that he may be ordered released on or around

24 that date, but due to the immigration hold, will be detained by the LASD beyond

25 his release date.

26

5. Christian Michel Varela

27

84. On September 18, 2012, Plaintiff Varela was arrested by the LASD

28 for allegedly driving a stolen vehicle. Mr. Varela had in fact borrowed his

18

1 roommate's car, as he normally did. However, he and his roommate had a

2 miscommunication and his roommate did not understand that he was going to be 3 away with the car for one week. When Mr. Varela did not return home, his

4 roommate became worried. After one week of not hearing from him, his

5 roommate reported Mr. Varela and the car as missing to the police, believing that

6 something bad could have happened to both Mr. Varela and the car. Nonetheless,

7 when the police found the car, they arrested Mr. Varela for driving a stolen car.

8

85. The LASD booked him into the Lennox Station. Upon information

9 and belief, within a matter of hours, ICE placed an immigration hold on him. At 10 his arraignment, Mr. Varela pled guilty to the charge. The judge first ordered him 11 to pay a $200 fine. However, when his attorney told the judge that he had an 12 immigration hold and would not be released from custody to pay the fine, the judge 13 ordered him to instead serve 120 days. Due to good credits earned, Mr. Varela's

14 expected release date is Wednesday, November 7, 2012.

15

86. Mr. Varela does not expect to be released then, however. Rather,

16 LASD will continue to detain him an additional number of days, including through

17 the weekend solely on the basis ofthe immigration hold.

18

19 IV. CLASS ACTION ALLEGATIONS FOR EQUITABLE RELIEF

20

87. Plaintiffs De La Cerda and Varela seek class-wide injunctive and

21 declaratory relief, pursuant to Federal Rules of Civil Procedure 23(a) and (b)(2), on

22 behalf of a class and a subclass.

23

1. The Equitable ReliefClass

24

88. The equitable relief class is defined as all persons who are or will be

25 (1) detained in the custody of the LASD, (2) have an immigration hold placed on

26 them by ICE while in LASD custody that was not supported by a lawful probable

27 cause determination, (3) are entitled to be released from LASD custody under

28 applicable federal or state law (which creates a liberty interest in such release), (4)

19

1 due to LASD policy and practice are not released (to the extent that they were 2 otherwise entitled to release) but held in LASD custody on the authority of the ICE

3 hold after they were eligible for release from LASD custody.

4

a. Numerosity

5

89. The class meets the numerosity requirement of Rule 23(a)(l). There

6 are approximately 20,000 inmates confined in the Los Angeles County Jails each

7 year who are being or will be detained for 48 hours or more by LASD after they

8 would otherwise be entitled to release on the sole basis of the ICE hold. The

9 membership ofthe class continuously changes, rendering joinder of all members

10 impracticable. The inclusion within the class of future inmates in the class also

11 makes joinder of all members impracticable.

12

b. Commonality

13

90. The class meets the commonality requirement of Rule 23(a)(2).

14 Questions of law and fact presented by the named plaintiffs are common to other

15 members of the class. The common contentions that unite the claims of the class

16 include the following:

17

• The practice of holding class members in the Los Angeles County jails

18

for 48 hours or more after they are otherwise entitled to release on the

19

basis of an ICE hold violates the Fourth Amendment of the United States

20

Constitution.

21

• The practice of holding class members in the Los Angeles County jails

22

for 48 hours or more after they are otherwise entitled to release on the

23

basis of an ICE hold violates the Fourteenth Amendment ofthe United

24

States Constitution.

25

• The practice of holding class members in the Los Angeles County jails

26

for 48 hours or more on the basis of an ICE hold after they are otherwise

27

entitled to release violates the state common law protections against false

28

imprisonment;

20

1

• The practice of holding class members in the Los Angeles County jails

2

for 48 hours or more after they are otherwise entitled to release on the

3

basis of an ICE hold constitutes an unreasonable seizure under Article I,

4

Section 13 of the California Constitution; and

5

• The practice of holding class members in the Los Angeles County jails

6

for 48 hours or more after they are otherwise entitled to release on the

7

basis of an ICE hold violates the due process guarantee of Article I,

8

Section 7 of the California Constitution

9

c. Typicality

10

91. The claims of Plaintiffs De La Cerda and Varela are typical of those

11 of the class as a whole because they have an ICE hold placed on them that was not

12 supported by a lawful probable cause determination while they were in LASD

13 custody and will shortly be otherwise eligible for release, but will be detained for

14 48 or more hours by Defendants as a result of the ICE hold.

15

d. Adequacy of Representation

16

92. Plaintiffs are adequate class representatives and thus meet the

17 requirements of Rule 23(a)(4). De La Cerda and Varela are presently in the

18 custody of the LASD, have an ICE hold placed on them that is not based on

19 probable cause, and are being denied the opportunity to be released by LASD

20 because they have an ICE hold placed on them. They have no conflict of interest

21 with other class members, they will fairly and adequately protect the interests of

22 the class, and they understand their responsibilities as class representatives.

23

93. The foregoing Plaintiffs (as well as those Plaintiffs acting as class

24 representatives for the class damages claims, who are discussed infra) are

25 represented by highly qualified and experienced counsel: The ACLU of Southern

26 California, the ACLU Immigrants Rights Project, the National Day Laborer

27 Organizing Network and Litt, Estuar & Kitson, who, as elaborated below, are all

28 highly experienced in cases of this type.

21

1

94. Plaintiffs' co-lead counsel on behalf of the ACLU of Southern

2 California, Peter Eliasberg, is the Legal Director of the ACLU Foundation of

3 Southern California. Since its founding in 1923, the ACLU of Southern California

4 has been litigating a broad variety of civil rights cases, including prisoners' rights

5 cases. Attorney Eliasberg has been lead counsel or co-lead counsel in numerous

6 federal civil rights class actions in the Central District of California as well as co-

7 counsel on a federal habeas petition on behalf of Susan McDougal. He has been

8 lead counsel in civil rights matters before the United States Court of Appeals for

9 the Ninth Circuit, the California Supreme Court, and the United States Supreme

10 Court, and has argued a case before the U.S. Supreme Court. Since 2009,

11 Eliasberg has served as co-lead class counsel for all the inmates in Los Angeles

12 County Jails in Rutherford v. Baca and in 2012 was named co-lead counsel for all

13 the inmates in Men's Central Jail and Twin Towers in Rosas v. Baca, a federal

14 class action in this Court. In addition, co-counsel Jennie Pasquarella, Peter Bibring,

15 and Ahilan Arulanantham all have experience serving as class counsel in large

16 civil rights cases litigated in federal court.

17

95. Plaintiffs' co-lead counsel on behalf of the Immigrants' Rights Project

18 of the American Civil Liberties Union is Cecilia Wang. Ms. Wang is Director of

19 the Immigrants' Rights Project ofthe ACLU Foundation ("ACLU IRP"). She has

20 substantial experience serving as plaintiffs' counsel in certified class action

21 lawsuits in federal court, including Lopez- Valenzuela, eta!. v. Maricopa County,

22 No. 08-660 (D. Ariz. filed April4, 2008), which seeks relief on behalf of pretrial

23 detainees in Arizona who are ineligible for bail because of their immigration status,

24 and Ortega Melendres v. Arpaio, eta!., No. 07-02513 (D. Ariz. filed Dec. 12,

25 2007), which challenges the Maricopa County Sheriff's Office's practice of race

26 discrimination and Fourth Amendment violations in traffic stops. In addition,

27 Omar Jadwat and Kate Desormeau, staff attorneys at ACLU IRP, have experience

28 serving as counsel in class-action lawsuits including Valle Del Sol v. Whiting,

22

1 No.l0-01061 (D. Ariz. filed May 17, 2010), and Utah Coalition ofLa Raza, et al.

2 v. Herbert, No. 11-00401 (D. Utah filed May 3, 2011). Founded in 1987, the

3 ACLU IRP has extensive experience litigating civil rights and class action lawsuits

4 on behalf of detained individuals, including Franco-Gonzalez v. Napolitano et al.,

5 No. 10-02211 (C.D. Cal filed March 26, 2010), and Rodriguez v. Robbins, No. 07-

6 03239 (C.D. Cal filed May 16, 2007). The ACLU IRP will commit its expertise

7 and resources to successfully represent the proposed classes in this action.

8

96. Plaintiffs' co-lead counsel on behalf of the National Day Laborer

9 Organizing Network (NDLON), Chris Newman, is the Legal Director of the

10 National Day Laborer Organizing Network. Since its founding in 2001, NDLON

11 has litigated a variety of constitutional and civil rights cases. Attorney Newman

12 currently serves as co-counsel in the civil rights class action Valle Del Sol v.

13 Whiting, No.l0-01061 (D. Ariz. filed May 17, 2010). He has also been counsel in

14 constitutional and civil rights matters before the United States Court of Appeals for

15 the Ninth and Eleventh Circuits, including Hispanic Interest Coalition ofAlabama

16 v. Bentley, No. 11-14535 (11th Cir.), as well as the Central District of California.

17 In addition, Jessica Karp, staff attorney at NDLON, has experience serving as

18 counsel in civil rights class action Valle Del Sol v. Whiting, and has been counsel

19 in constitutional and civil rights matters before the United States Court of Appeals

20 for the Ninth and Eleventh Circuits.

21

97. Plaintiffs' co-lead counsel on behalf of Litt, Estuar & Kitson, Barrett

22 S. Litt, specializes in complex civil rights litigation, particularly civil rights class

23 actions, and has extensive experience handling jail matters. The law enforcement

24 or jail/prison class actions in which he has been named class counsel in certified

25 classes are listed below. (Where there is a reported decision, the cite is provided.)

26

~ Multi-Ethnic Immigrant Worker Network v. City ofLos Angeles, Case

27

No.: CV 07-3072 ARM (FMMx) (class action for injunctive relief and

28

damages for challenging the LAPD's assault on a lawful immigrant rights

23

1

rally in MacArthur Park on May 1, 2007: Multi-Ethnic Immigrant Worker

2

Network v. City ofLos Angeles, 24 F.R.D. 621 (C.D. Cal. 2007)

3

(certifying class).

4

>- Williams v. Block, Case No.: CV-97-03826-CW (Central District of

5

California) and related cases (a series of county jail overdetention and

6

strip search cases, settled for $27 Million and a complete revamp ofjail

7

procedures); Streit v. County ofLos Angeles, 236 F.3d 552, 556 (9th Cir.

8

2001) (finding that sheriff is a county actor and referring, at fn. 2, to the

9

concurrent, unreported reversal of the denial of class certification by the

1 0

district court).

11

>- Craft v. County ofSan Bernardino, Case No.: EDCV05-00359 SGL

12

(C.D.Cal.) (certified class action against the Sheriff of San Bernardino

13

County for blanket strip searches of detainees, arrestees, and persons

14

ordered released from custody; partial summary judgment decided for

15

plaintiffs; $25.5 Million settlement approved Aprill, 2008); Craft v.

16

County ofSan Bernardino, 468 F.Supp.2d 1172 (C.D.Cal. 2006)

17

(approving class settlement).

18

>- Lopez v. Youngblood, No. CV07-00474 LJO (DLBx) (E.D. Calif.) (class

19

action against Kern County, California, for unlawful pre-arraignment and

20

post-release strip searches and strip searches not conducted in private;

21

class certification and summary judgment on liability granted; settlement

22

approved in 2011 for class fund of approximately $7 Million); Lopez v.

23

Youngblood, 2009 WL 909817 (E.D. Cal. Apr. 1, 2009).

24

>- Bynum v. District ofColumbia, Case No.: 02-956 (RCL) (D.D.C.) (class

25

action against the District of Columbia for overdetentions and blanket

26

strip searches of pretrial jail detainees after they have been ordered

27

released from custody; final approval of$12,000,000 settlement occurred

28

January 2006); Bynum v. Dist. ofColumbia, 214 F.R.D. 27 (D.D.C. 2003)

24

1

(certifying class)

2

> Barnes v. District ofColumbia, Civil Action No: 06-315 (RCL) (D.D.C.)

3

(class action against District of Columbia for continuing to both over-

4

detain and strip search post-release inmates despite settlement in Bynum,

5

supra; class certification granted; partial summary judgment granted

6

plaintiffs and remaining issues to be set for trial); Barnes v. Dist. of

7

Columbia, 242 F.R.D. 113 (D.D.C. 2007) (certifying class)]

8

> Johnson v. District ofColumbia, Case No. 02-2364 (RMC) (D.D.C.)

9

(class action against the District of Columbia and United States Marshals

10

for blanket strip searches of arrestees initially taken to jail without

11

reasonable suspicion and not involved in drug or violent activity;

12

judgment for defendant on appeal); Johnson v. Dist. ofColumbia, 248

13

F.R.D. 46 (D.D.C. 2008) (certifying class).

14

> Jones v. Murphy, Case No. CCB 05 CV 1287 (D. Maryland) (class action

15

challenging overdetentions and illegal strip searches in Central Booking in

16

Baltimore, MD, jail; class certification granted in part and denied in part;

17

summary judgment motions pending); Jones v. Murphy, 256 F.R.D. 519

18

(D. Md. 2009) (certifying class).

19

> Gail Marie Harrington-Wisely, et al. v. State ofCalifornia, et al., Superior

20

Court Case No.: BC 227373 (backscatter x-ray searches of visitors to

21

California prisons without reasonable suspicion; class certification

22

granted; stipulated injunction entered; case currently pending to sort out

23

procedural issues preliminary to appeal or settlement)

24

98. Mr. Litt has authored articles on law enforcement related class

25 certification issues. See "Class Certification in Police/Law Enforcement Cases",

26 Civil Rights Litigation and Attorney's Fee Annual Handbook, Vol.l8, Ch.3, West

27 Publishing 2002; "Obtaining Class Attorney's Fees," Civil Rights Litigation and

28 Attorney's Fee Annual Handbook, Vol. 26, Ch. 15, West Publishing 2010.

25

1

99. Plaintiffs meet the requirement of Rule 23(b)(2), as the Defendant has

2 acted, or omitted to act, on grounds generally applicable to the class, thereby

3 making equitable relief appropriate with respect to the class as a whole.

4

2. The Equitable ReliefSub-class

5

100. The equitable relief sub-class is defined as all persons who are or will

6 be (I) detained in the custody of the LASD, (2) have an immigration hold placed

7 on them by ICE while in LASD custody that was issued to initiate an investigation

8 to determine whether the person is subject to removal, issued on the basis of a

9 warrant of arrest for removal proceedings, or issued on the basis of initiating

10 removal proceedings and serving a Notice to Appear or other charging documents,

11 (3) are entitled to be released from LASD custody under applicable federal or state

12 law (which creates a liberty interest in such release), (4) due to LASD policy and

13 practice are not released (to the extent that they were otherwise entitled to release)

14 but held in LASD custody on the authority of the ICE hold (5) for more than 48

15 hours after they were eligible for release from LASD custody without a probable

16 cause hearing before a neutral decisionmaker for a probable cause determination.

17 The distinctions between this sub-class and the equitable relief class are that this

18 sub-class asserts that, even if an ICE hold for 48 hours total is permissible,

19 additional holding time beyond 48 hours without a probable cause hearing before a

20 neutral decisionmaker is not, whereas the equitable relief class asserts that no

21 period of an ICE hold is permissible.

22

a. Numerosity

23

101. The subclass for class two meets the numerosity requirement of Rule

24 23(a)(l). There are approximately 20,000 inmates confined in the Los Angeles

25 County Jails each year who LASD will detain for ICE because ICE has placed a

26 hold on them, who are being, or will be, detained for more than 48 hours by LASD

27 after they would otherwise be entitled to release on the basis of the ICE hold.

28 More than 15,000 of those holds are issued as "investigatory holds" or on the basis

26

1 of a warrant issued by an ICE officer. For approximately 31% of those 15,000, 2 with investigatory or ICE officer warrant ICE holds, or 4,650 of the 15,000, their 3 continued detention on the ICE hold will run more than 48 hours because they are 4 held on Saturday, Sunday or holiday. Thus, approximately 4,650 will be held by 5 LASD for more than 48 hours after they were eligible for release from LASD 6 custody without a probable cause determination by a neutral decisionmaker. The 7 membership of the subclass continuously changes, rendering joinder of all 8 members impracticable. The inclusion within the subclass of future inmates in the 9 downtown Jail Complex also makes joinder of all members impracticable.

10

b. Commonality

11

102. The subclass meets the commonality requirement of Rule 23(a)(2).

12 Questions of law and fact presented by the named plaintiffs are common to other

13 members of the class. The common contentions that unite the claims ofthe class

14 include the following:

15

• The practice of holding subclass members in the Los Angeles County

16

jails for more than 48 hours after they are otherwise entitled to release on

17

the basis of an ICE hold without a probable cause determination by a

18

neutral decisionmaker violates the Fourth Amendment of the United

19

States Constitution;

20

• The practice of holding subclass members in the Los Angeles County

21

jails for more than 48 hours after they are otherwise entitled to release on

22

the basis of an ICE hold without a probable cause determination by a

23

neutral decisionmaker violates the due process guarantee of Fourteenth

24

Amendment of the United States Constitution;

25

• The practice of holding subclass members in the Los Angeles County

26

jails for more than 48 hours after they are otherwise entitled to release on

27

the basis of an ICE hold without a probable cause determination by a

28

neutral decisionmaker violates the state common law protections against

27

1

false imprisonment;

2

• The practice of holding subclass members in the Los Angeles County

3

jails for more than 48 hours after they are otherwise entitled to release on

4

the basis of an ICE hold without a probable cause determination by a

5

neutral decisionmaker constitutes an unreasonable seizure under Article

6

I, Section 13 ofthe California Constitution.

7

• The practice of holding subclass members in the Los Angeles County

8

jails for more than 48 hours after they are otherwise entitled to release on

9

the basis of an ICE hold without a probable cause determination by a

10

neutral decisionmaker violates the due process guarantee of Article 1,

11

Section 7 of the California Constitution.

12

c. Typicality

13

103. The claims of Plaintiff Varela are typical of those of those of the sub-

14 class because, due to the timing of Mr. Varela's release date, he will be detained

15 more than 48 hours and over the weekend without a probable cause determination

16 by a neutral decisionmaker solely on the basis of the ICE hold.

17

d. Adequacy of Representation

18

104. Plaintiffs are adequate class representatives and thus meet the

19 requirements of Rule 23(a)(4). Plaintiff Varela is presently in custody of the

20 LASD and will been held for more than 48 hours after he is otherwise entitled to

21 relief on the basis off!n ICE hold without a probable cause determination by a

22 neutral decisionmaker. He has no conflict of interest with other class members,

23 and he will fairly and adequately protect the interests of the class. He and the sub-

24 class are represented by highly qualified and experienced counsel: The ACLU of

25 Southern California, the ACLU Immigrants Rights Project, the National Day

26 Laborer Organizing Network and Litt, Estuar & Kitson. Plaintiffs incorporate by

27 reference the allegations set forth in paragraphs 93-98 above.

28

105. Plaintiffs meet the requirement of Rule 23(b)(2), as the Defendant has

28

1 acted, or omitted to act, on grounds generally applicable to the class, thereby 2 making habeas corpus relief appropriate with respect to the class as a whole.

3

4 V. CLASS ACTION ALLEGATIONS FOR DAMAGES

5

106. Plaintiffs Martinez-Perez and Alliksoo bring this damages claim based

6 on federal and supplemental state law claims, including under 42 U.S.C. § 1983,

7 seeking class-wide relief, pursuant to Federal Rules of Civil Procedure 23(a) and

8 (b)(3), on behalf of all Damages Classes alleged below.

9

107. The foregoing named Plaintiffs are also collectively referred to as the

10 "Damages Class Representatives."

11

1. Damages Classes One and Two (Federal and State

12

Respectively)

13

108. Damages Class One (hereafter and in the course ofthis litigation also

14 referred to as the "Federal Bail Damages Class") is defined as all persons who,

15 during the two years prior to the filing of this complaint, and continuing until the

16 practice has ceased or until entry ofjudgment, whichever is sooner, have been or

17 will be (1) detained in the custody of the LASD, (2) have an immigration hold

18 placed on them by ICE while in LASD custody, (3) were eligible to post bail on

19 the basis of the County-wide bail schedule as provided by statute, an arrest

20 warrant, or a court order setting the amount ofbail (4) but are not allowed to post

21 bail and be released due to LASD policy and practice.

22

109. Damages Class Two (hereafter and in the course of this litigation also

23 referred to as the "State Bail Damages Class") is defined as all persons who, 24 beginning November 7, 2011 (six months before filing the initial state law 910 25 class claim by Antonio Montejano),4 and continuing until cessation of the practice

26

27 4 Should the Court conclude for some reason that the Montejano 910 claim does 28 not begin the running of the period for which a claim can be made, there were also
(cont'd)
29

1 or entry ofjudgment, whichever is sooner, have been or will be (1) detained in the 2 custody of the LASD, (2) have an immigration hold placed on them by ICE while 3 in LASD custody, (3) are eligible to post bail on the basis ofthe County-wide bail 4 schedule as provided by statute, an arrest warrant, or a court order setting the 5 amount ofbail (4) but were or are not allowed to post bail and be released due to

6 LASD policy and practice.

7

2. Damages Classes Three and Four (Federal and State

8

Respectively)

9

110. Damages Class Three (hereafter and in the course of this litigation

10 also referred to as the "Federal ICE Damages Class") is defined as all persons who,

11 during the two years prior to the filing ofthis complaint, and continuing until the

12 practice has ceased or until entry ofjudgment, whichever is sooner, have been or

13 will be (1) detained in the custody of the LASD, (2) have an immigration hold

14 placed on them by ICE while in LASD custody that was not supported by a lawful

15 probable cause determination, (3) are entitled to be released from LASD custody

16 under applicable federal or state law (which creates a liberty interest in such

17 release), and (4) due to LASD policy and practice are not released (to the extent

18 that they were otherwise entitled to release) but held in LASD custody on the

19 authority of the ICE hold after they were eligible for release from LASD custody.

20

111. Damages Class Four (hereafter and in the course of this litigation also

21 referred to as the "State ICE Damages Class") is defined as all persons who,

22 beginning November 7, 2011 (six months before filing the initial state law 910 23 class claim by Antonio Montejano), and continuing until cessation of the practice 24 or entry ofjudgment, whichever is sooner, have been or will be (1) detained in the 25 custody of the LASD, (2) have an immigration hold placed on them by ICE while 26 in LASD custody that was not supported by a lawful probable cause determination,

27 subsequent 910 class claims filed that Plaintiffs can assert if necessary. This 28 applies to the other state damages classes asserted herein.

30

1 (3) are entitled to be released from LASD custody under applicable federal or state

2 law (which creates a liberty interest in such release), and (4) due to LASD policy

3 and practice are not released (to the extent that they were otherwise entitled to 4 release) but held in LASD custody on the authority of the ICE hold after they were

5 eligible for release from LASD custody.

6

3. Damages Sub-Classes to Damages Classes Three and Four,

7

AKA Classes Five and Six (Federal and State Respectively)

8

112. As alleged previously regarding the injunctive relied sub-class, there

9 are also sub-classes to the ICE Damages Classes. Because a sub-class is ultimately

10 treated as a separate class, should it become appropriate to distinguish it from the

11 class of which it is a part, Plaintiffs also refer to the sub-classes alleged in this

12 section as Classes Five and Six.

13

113. The sub-class to Damages Class Three (hereafter and in the course of

14 this litigation also referred to as Damages Class Five or the "Federal Post-48 Hour

15 ICE Damages Class") is defined as all persons who, during the two years prior to

16 the filing of this complaint, and continuing until the practice has ceased or until

17 entry ofjudgment, whichever is sooner, have been or will be (1) detained in the

18 custody of the LASD, (2) have an immigration hold placed on them by ICE while 19 in LASD custody that was issued to initiate an investigation to determine whether

20 the person is subject to removal, on the basis of a warrant of arrest for removal

21 proceedings, or on the basis of initiating removal proceedings and serving a Notice

22 to Appear or other charging documents (3) are entitled to be released from LASD

23 custody under applicable federal or state law (which creates a liberty interest in 24 such release), (4) due to LASD policy and practice are not released (to the extent

25 that they were otherwise entitled to release) but held in LASD custody on the

26 authority of the ICE hold (5) for more than 48 hours after they were eligible for

27 release from LASD custody without a probable cause hearing before a neutral

28 decisionmaker for a determination of probable cause.

31

1

114. The sub-class to Damages Class Four (hereafter and in the course of

2 this litigation also referred to as Damages Class Six or the "State Post-48 Hour ICE

3 Damages Class") is defined as all persons who, beginning on November 7, 2011

4 (six months before the filing of the initial state law 910 class claim by Antonio

5 Montejano), and continuing until cessation of the practice or entry of judgment,

6 whichever is sooner, have been or will be (1) detained in the custody of the LASD,

7 (2) have an immigration hold placed on them by ICE while in LASD custody that

8 was issued to initiate an investigation to determine whether the person is subject to

9 removal, on the basis of a warrant of arrest for removal proceedings, or on the

10 basis of initiating removal proceedings and serving a Notice to Appear or other

11 charging documents, (3) are entitled to be released from LASD custody under

12 applicable federal or state law (which creates a liberty interest in such release), (4)

13 due to LASD policy and practice are not released (to the extent that they were

14 otherwise entitled to release) but held in LASD custody on the authority of the ICE

15 hold (5) for more than 48 hours after they were eligible for release from LASD

16 custody without a probable cause determination by a neutral decisionmaker.

17 18 VI. 19

THE FOREGOING DAMAGES CLASSES MEET THE REQUIREMENTS OF FEDERAL RULES OF CIVIL PROCEDURE

20

23(A).

21

115. Damages Classes One and Two meet the requirements of Rule 23 as

22 follows:

23

1. Numerosity

24

116. The classes meet the numerosity requirement of Rule 23(a)(l). There

25 are approximately 20,000 inmates (rounded to the nearest thousand) confined in

26 the Los Angeles County Jails each year who will be released to ICE because ICE

27 has placed a hold on them. Austin at pg. 21. Approximately 45% of the 20,000, or

28 9,000 are held solely on pre-trial status; in other words they are not serving a

32

1 sentence. Approximately 43% of them, or 3,870, are classified as "low custody"

2 and are thus likely to be held pre-trial on a minor charge and therefore a low bail

3 amount under the County-wide bail schedule as provided by statute, an arrest

4 warrant, or court order. On information and belief, well over 1000 such

5 individuals (quite likely substantially more) would have posted bail in a given year

6 in light of the low bail amounts set for those charged with low level offenses,

7 except for the LASD practice of refusing to allow them to post bail.

8

2. Commonality

9

117. The classes meet the commonality requirement of Rule 23(a)(2).

10 Questions of law and fact presented by the named plaintiffs are common to other

11 members of the class. The common contentions that unite the claims of the class

12 include the following:

13

• The practice of denying the ability to post bail to inmates with ICE holds

14

violates the right to due process of laws ofthe 14th Amendment of the

15

United States Constitution;

16

• The practice of denying the ability to post bail to inmates with ICE holds

17

violates the state common law protection against false imprisonment;

18

• The practice of denying the ability to post bail to inmates with ICE holds

19

violates California Penal Code Section Cal. Penal Code§ 1269b(g);

20

• The practice of denying the ability to post bail to inmates with ICE holds

21

violates Article I, section 12 of the California Constitution.

22

3. Typicality

23

118. Plaintiffs meet the typicality requirement of Rule 23(a)(3), since, as

24 alleged below, the claims of the Plaintiffs are typical of those of the class.

25

119. Plaintiff Martinez-Perez was denied the ability to post bail due to the

26 presence of an ICE hold, and was held beyond the expiration of any state law basis

27 to detain him for four days, including over the weekend, on the ICE hold.

28

120. Plaintiff Alliksoo was denied the ability to post bail due to the

33

1 presence of an ICE hold and was held beyond the expiration of any state law basis

2 to detain her for three days, including over the weekend, on the ICE hold.

3

4. Adequacy ofRepresentation

4

121. Plaintiffs are adequate class representatives and thus meet the

5 requirements of Rule 23(a)(4). Plaintiffs Martinez-Perez and Alliksoo were in the

6 custody of the LASD, were eligible for bail by County-wide bail schedule as

7 provided by statute, an arrest warrant, or had a court-ordered bail amount, had an

8 ICE hold placed on them, and were denied the opportunity to be released on bail

9 by SheriffBaca because they had an ICE hold placed on them. They have no

10 conflict of interest with other class members, they will fairly and adequately

11 protect the interests of the class, and they understand their responsibilities as class

12 representatives.

13

122. The foregoing Plaintiffs (as well as those Plaintiffs acting as class

14 representatives for the class damages claims, who are discussed infra) are

15 represented by highly qualified and experienced counsel: The ACLU of Southern

16 California, the ACLU Immigrants Rights Project, the National Day Labor

17 Organizing Network and Litt, Estuar & Kitson, who, as elaborated in paragraphs

18 93-98, are all highly experienced in cases of this type.

19

123. Plaintiffs incorporate paragraphs 87 to 105, above, regarding the

20 parallel equitable relief class and its subclass. Except for the fact that the

21 Damages Class Representatives are out of custody, and the particular facts

22 showing that the claims are typical of the classes on whose behalf each acts as a

23 representative, the allegations contained in the foregoing paragraphs apply as well

24 to the Damages Class Representatives, and need not be repeated here, Damages

25 Classes One through Six accordingly meet the requirements of Federal Rule of

26 Civil Procedure 23(a)- numerosity, commonality, typicality and adequacy of

27 representation.

28

34

1 VII. THE FOREGOING DAMAGES CLASSES MEET THE

2

REQUIREMENTS OF FEDERAL RULES OF CIVIL PROCEDURE

3

23(B)(3).

4

124. Damages Classes One through Six also meet the requirements of

5 Federal Rule of Civil Procedure 23(b)(3).

6

1. Predominance ofCommon Questions

7

125. The questions oflaw or fact common to class members predominate

8 over any questions affecting only individual members because the dominant issue

9 for all class members is whether there exists or existed a policy, custom and/or

10 practice of 1) refusing to allow class members to post bail because there was an

11 ICE hold on them, and 2) refusing to release class members otherwise entitled to

12 release on the basis of an ICE hold (either for the whole period- Damages Classes

13 Three and Four- or after the expiration of 48 hours after becoming entitled to

14 release- Damages Classes Five and Six.

15

126. The predominance of those issues for each damages class is sufficient

16 to certify the class under Rule 23(b)(3) pursuant to the provisions of F.R.Civ.P

17 23(c)(4), which authorizes the certification of a class "with respect to particular

18 issues," even ifthere are other issues to be tried individually.

19

2. Superiority

20

127. A class action is superior to other available methods for fairly and

21 efficiently adjudicating the controversy. Most of the class members were detained

22 unlawfully for sufficiently few days that an individual lawsuit for such damages is

23 not economically viable, given the complexity of the issues, and lawyers are

24 unlikely to take such cases individually. The great majority of class members

25 accordingly do not have an individual interest in controlling the prosecution of the

26 case. This district is the proper forum for the claims encompassed by this action,

27 and there are no individual cases of which Plaintiffs are aware pending in this

28 District pursuing damages for the violations at issue here despite the prevalence of

35

1 the problem.

2

128. The action is manageable. At a minimum, it will decide the critical

3 issue of Monell liability for all class members, and, given the nature ofthe claims,

4 it will also decide causation because the reason for the unlawful continuing

5 detention will be the policies asserted herein. These are all the issues that need to

6 be determined to establish liability to the respective classes.

7

129. General damages inherent in the constitutional violation could be

8 proven on a class wide basis. Individual (special) damages, to the extent a class

9 member chose to pursue them, would be proven on an individual basis under

10 procedures to be set by the Court.

11

130. Because the classes are confined to those regarding whom there

12 should be computerized jail records that will show, inter alia, the date of arrest,

13 whether bail was set, whether an ICE hold was placed on a person, the date of the

14 ICE hold, the date the person was entitled to release absent the ICE hold, and the

15 date of release or transfer to ICE, identifying the universe of likely class members

16 will be readily accomplished based on jail (and possibly court, if needed) records.

17

131. Thus, the proposed classes are manageable, and, without class

18 treatment, the overwhelming majority of class members would not have a viable

19 individual claim.

20

21 VIII. EXHAUSTION OF ADMINISTRATIVE REMEDIES FOR STATE

22

DAMAGES CLAIMS

23

132. Plaintiffs have complied with the jurisdictional prerequisites for filing

24 a tort claim for damages against the County. See Cal. Gov't Code§ 911.2.

25

133. On May 9, 2012, Plaintiff Duncan Roy filed an administrative tort

26 claim against the Los Angeles County Sheriffs Department on behalf of himself

27 and the representative class. On May 23, 2012, he filed an amended claim. On

28 May 29, 2012, the County rejected his claim.

36

1

134. On May 7, 2012, Antonio Montejano, a U.S. citizen detained by

2 LASD on an immigration hold, filed an administrative tort claim against the Los

3 Angeles County Sheriffs Department on behalf of himself and the representative

4 class of persons detained solely on the basis of the immigration hold. On May 23,

5 2012, he filed an amended claim. On May 29,2012, the County rejected his claim.

6

135. On September 13, 2012, Plaintiff Annika Alliksoo filed an

7 administrative tort claim against the Los Angeles County Sheriffs Department on

8 behalf of herself and the representative class. On October 9, 2012, she filed an

9 amended claim.

10

11 IX. CLAIMS

12

First Cause of Action:

13

Fourteenth Amendment Violation (Due Process); 42 U.S.C. § 1983

14

All Plaintiffs against all Defendants5

15

136. Plaintiffs incorporate the allegations of the preceding paragraphs as if

16 fully set forth herein.

17

137. As set forth above, Defendants refused to allow Plaintiffs and those

18 similarly situated to post bail for which they were eligible under the County-wide

19 bail schedule, prior to Plaintiffs' arraignment, thus depriving Plaintiffs of their

20 liberty without due process oflaw.

21

22

23 5 For all causes of action pled, all claims for damages are made against Defendant

24 County of Los Angeles. All claims for injunctive relief are made against both

25

Defendant County of Los Angeles and Defendant Baca in his official capacity. Claims by Plaintiff Defendant Roy are made for damages on his own behalf.

26 Claims by Plaintiffs Alain Martinez-Perez and Annika Alliksoo are made for

27

damages on behalf of themselves and others similarly situated. Claims by Plaintiffs Clemente De La Cerda and Christian Michel Varela are made for

28 injunctive relief on behalf of themselves and others similarly situated.

37

1

138. As set forth above, Defendants refused to allow Plaintiffs and those

2 similarly situated to post the bail set for Plaintiffs by the courts in their criminal

3 cases, thus depriving Plaintiffs of their liberty without due process of law.

4

139. As set forth above, Defendants continued to detain Plaintiffs and those

5 similarly situated after their criminal cases had been resolved and all state law

6 grounds to detain them had evaporated solely on the basis of the immigration hold,

7 thus depriving Plaintiffs of their liberty without due process oflaw.

8

Second Cause of Action:

9

Fourth Amendment Violation (Unlawful Seizure); 42 U.S.C. § 1983

10

All Plaintiffs against all Defendants

11

140. Plaintiffs incorporate the allegations of the preceding paragraphs as if

12 fully set forth herein.

13

141. As set forth above, Defendants refused to allow Plaintiffs and those

14 similarly situated to post bail for which they were eligible according to their

15 warrant of arrest or under the County-wide bail schedule, prior to Plaintiffs'

16 arraignment, thus seizing Plaintiffs in violation of the Fourth Amendment.

17

142. As set forth above, Defendants continued to detain Plaintiffs and those

18 similarly situated after their release date and the expiration of any and all state law

19 basis to detain them solely on the basis that ICE issued a Form 1-247, and without

20 probable cause to believe that Plaintiffs were removable, thus seizing Plaintiffs in

21 violation of the Fourth Amendment.

22

143. Absent an emergency or other extraordinary circumstance, a detention

23 of over 48 hours prior to judicial determination of probable cause violates the

24 Fourth Amendment as a matter oflaw. See County ofRiverside v. McLaughlin,

25 500 U.S. 44, 57 (1991). The 48 hours includes weekends and holidays.

26

144. As set forth above, Defendants as a routine matter continued to detain

27 Plaintiffs and those similarly situated for more than 48 hours after their release date

28 and the expiration of any and all state law basis to detain them solely on the basis

38

1 that ICE issued a Form 1-247 without providing a judicial or quasi-judicial

2 determination of probable cause on any purported immigration charges, thus

3 seizing Plaintiffs in violation of the Fourth Amendment.

4

Third Cause of Action:

5

Violation of California Constitution, Article 1, § 7 (Due Process)

6

All Plaintiffs against All Defendants

7

145. Plaintiffs incorporate the allegations of the preceding paragraphs as if

8 fully set forth herein.

9

146. As set forth above, Defendants refused to allow Plaintiffs and those

10 similarly situated to post bail for which they were eligible under the County-wide

11 bail schedule, prior to Plaintiffs' arraignment, thus depriving Plaintiffs of their

12 liberty without due process of!aw.

13

147. As set forth above, Defendants refused to allow Plaintiffs and those

14 similarly situated to post the bail set for Plaintiffs by the courts in their criminal

15 cases, thus depriving Plaintiffs of their liberty without due process oflaw.

16

148. As set forth above, Defendants continued to detain Plaintiffs and those

17 similarly situated after their criminal cases had been resolved and all state law

18 grounds to detain them had evaporated solely on the basis of the immigration hold,

19 thus depriving Plaintiffs of their liberty without due process of law.

20

Fourth Cause of Action:

21

Violation of California Constitution, Article 1, § 13 (Unlawful Seizure)

22

All Plaintiffs against All Defendants

23

149. Plaintiffs incorporate the allegations of the preceding paragraphs as if

24 fully set forth herein.

25

150. As set forth above, Defendants refused to allow Plaintiffs and those

26 similarly situated to post bail for which they were eligible according to their

27 warrant of arrest or under the County-wide bail schedule, prior to Plaintiffs'

28 arraignment, thus seizing Plaintiffs in violation of the California Constitution,

39

1 Article I, section 13.

2

151. As set forth above, Defendants continued to detain Plaintiffs and those

3 similarly situated after their release date and the expiration of any and all state law

4 basis to detain them solely on the basis that ICE issued a Form I-247, and without

5 probable cause to believe that Plaintiffs were removable, thus seizing Plaintiffs in

6 violation of the California Constitution, Article I, section 13.

7

152. As set forth above, Defendants as a routine matter continued to detain

8 Plaintiffs and those similarly situated for more than 48 hours after their release date

9 and the expiration of any and all state law basis to detain them solely on the basis

10 that ICE issued a Form I-247 without providing a judicial or quasi-judicial

11 determination of probable cause on any purported immigration charges, thus

12 seizing Plaintiffs in violation of the California Constitution, Article I, section 13.

13

Fifth Cause of Action:

14

False Imprisonment

15

All Plaintiffs against all Defendants

16

153. Plaintiffs incorporate the allegations of the preceding paragraphs as if

17 fully set forth herein.

18

154. The duty of a jailor to release an inmate on bail is mandatory under

19 California law. California courts have held that jailers who failed to release an

20 inmate who satisfied bail requirements acted unlawfully and are liable for false

21 imprisonment. See Shakespeare v City ofPasadena, 230 Cal. App. 2d 375, 384

22 (1964); Moore v. City & County ofSan Francisco, 5 Cal. App. 3d 728 (1970).

23

155. As set forth above, Defendants refused to allow Plaintiffs and those

24 similarly situated to post bail for which they were eligible according to their

25 warrant of arrest or under the County-wide bail schedule, prior to Plaintiffs'

26 arraignment, thus non-consensually and intentionally confining Plaintiffs without

27 lawful privilege.

28

156. As set forth above, Defendants refused to allow Plaintiffs and those

40

1 similarly situated to post the bail set for Plaintiffs by the courts in their criminal 2 cases, thus non-consensually and intentionally confining Plaintiffs without lawful

3 privilege.

4

157. The duty of a jailor to release a detainee after a judge has ordered her

5 released on her own recognizance, after she has served her sentence, after charges

6 are dismissed or no charges are filed, or after the expiration of any other state law

7 basis to detain is also mandatory. See, e.g., Cal. Penal Code§ 1384 ("If the judge

8 or magistrate directs the action to be dismissed, the defendant must, if in custody,

9 be discharged therefrom ...."); Sullivan v. Los Angeles, 12 Cal.3d 710, 722 n.ll

10 (1974) ("Release of a prisoner after dismissal of charges against him is non-

11 discretionary since it is specifically mandated by Penal Code section 1384.").

12

158. State law provides no authority for LASD to continue to detain an

13 individual beyond her release date and the expiration of any and all state law basis

14 to detain her solely on the basis of the immigration hold.

15

159. As set forth above, Defendants continued to detain Plaintiffs and those

16 similarly situated after their release date and the expiration of any and all state law

17 basis to detain them, thus non-consensually and intentionally confining Plaintiffs

18 without lawful privilege.

19

160. Defendants are liable for the tort of false imprisonment of Plaintiffs,

20 because their employees, acting within the course and scope of their duties, would

21 have been liable for the tort of false imprisonment, based on the allegations above.

22 California Government Code§ 815.2.

23

Sixth Cause of Action:

24

California Government Code §§ 815.2 and 815.6

25

All Plaintiffs against all Defendants

26

161. Plaintiffs incorporate the allegations of the preceding paragraphs as if

27 fully set forth herein.

28

162. California law imposes a mandatory duty on LASD to release on bail

41

1 any arrestee or inmate who meets the statutory conditions for bail. See, e.g., Cal.

2 Const., Art. 1, section 12; Penal Code§ Cal. Penal Code§§ 1268, 1269b, 1295(a).

3 Further, the federal and state constitutional provisions cited previously (due

4 process, and search and seizure) constitute mandatory duties under Article 1, § 26

5 of the California Constitution.

6

163. As set forth above, Defendants refused to allow Plaintiffs and those

7 similarly situated to post bail for which they were eligible under a warrant of arrest

8 or the County-wide bail schedule, prior to Plaintiffs' arraignment, thus failing to

9 discharge their mandatory duties under California law and causing Plaintiffs and

10 those similarly situated injuries those duties were designed to prevent.

11

164. As set forth above, Defendants refused to allow Plaintiffs and those

12 similarly situated to post the bail set for Plaintiffs by the courts in their criminal

13 cases, thus failing to discharge their mandatory duties under California law and

14 causing Plaintiffs and those similarly situated injuries those duties were designed

15 to prevent.

16

165. As set forth above, California law also imposes a mandatory duty on

17 LASD to release a detainee after a judge has ordered her released on her own

18 recognizance, after she has served her sentence, after charges are dismissed or no

19 charges are filed, or after the expiration of any other state law basis to detain is also

20 mandatory.

21

166. State law provides no authority for LASD to continue to detain an

22 individual beyond her release date and the expiration of any and all state law basis

23 to detain her solely on the basis of the immigration hold.

24

167. As set forth above, Defendants continued to detain Plaintiffs and those

25 similarly situated after their release date and the expiration of any and all state law

26 basis to detain them solely on the basis of the immigration hold, thus failing to

27 discharge their mandatory duties under California law and causing Plaintiffs and

28 those similarly situated injuries those duties were designed to prevent.

42

1

168. Defendants are therefore liable to Plaintiffs and those similarly

2 situated under California Government Code§ 815.6.

3

Seventh Cause of Action:

4

Negligence Per Se

5

All Plaintiffs against all Defendants

6

169. Plaintiffs incorporate the allegations of the preceding paragraphs as if

7 fully set forth herein.

8

170. As set forth above, Defendants' employees refused to allow Plaintiffs

9 and those similarly situated to post bail for which they were eligible under a

10 warrant of arrest or the County-wide bail schedule, prior to Plaintiffs' arraignment,

11 thus violating their obligations under California law and causing injury to Plaintiffs

12 and those similarly situated in a manner in which California's guarantees ofthe

13 right to post bail were designed to prevent, for the benefit of Plaintiffs and those

14 similarly situated.

15

171. As set forth above, Defendants' employees refused to allow Plaintiffs

16 and those similarly situated to post the bail set for Plaintiffs by the courts in their

17 criminal cases, thus violating their obligations under California law and causing

18 injury to Plaintiffs and those similarly situated in a manner in which California's

19 guarantees of the right to post bail were designed to prevent, for the benefit of

20 Plaintiffs and those similarly situated.

21

172. As set forth above, Defendants continued to detain Plaintiffs and those

22 similarly situated after their release date and the expiration of any and all state law

23 basis to detain them solely on the basis of the immigration hold, in spite of their

24 mandatory duty under state law to release them, thus violating their obligations

25 under California law and causing injury to Plaintiffs and those similarly situated in

26 a manner in which California's guarantees of release were designed to prevent, for

27 the benefit of Plaintiffs and those similarly situated.

28

43

1

173. Defendants are therefore liable to Plaintiffs and those similarly

2 situated for negligence per se under California Government Code§ 815.6.

3

Eighth Cause of Action:

4

Civil Code § 52.1

5

All Plaintiffs against all Defendants

6

174. Defendants' unlawful conduct of refusing to allow Plaintiffs and the

7 Damages Class Two members the right to post bail was unlawful. As a result of

8 this unlawful conduct, Plaintiffs and the Damages Class Two members were held

9 in the custody of the Los Angeles County Jail beyond the time they were entitled to

10 release. Such unlawful detention was accomplished through coercion, i.e., the

11 forced continuing incarceration in LASD custody.

12

175. Defendants' unlawful conduct of holding Plaintiffs and the Damages

13 Class Four members on an ICE hold was unlawful. As a result of this unlawful

14 conduct, Plaintiffs and the Damages Class Four members were held in the custody

15 ofthe Los Angeles County Jail beyond the time they were entitled to release. Such

16 unlawful detention was accomplished through coercion, i.e., the forced continuing

17 incarceration in LASD custody.

18

176. Defendants' unlawful conduct of holding Plaintiffs and the Damages

19 Class Six members on an ICE hold beyond 48 hours was unlawful. As a result of

20 this unlawful conduct, Plaintiffs and the Damages Class Six members were held in

21 the custody of the Los Angeles County Jail beyond the time they were entitled to

22 release. Such unlawful detention was accomplished through coercion, i.e., the

23 forced continuing incarceration in LASD custody.

24

177. The foregoing conduct deprived Plaintiffs and the members of Classes

25 Two, Four and Six the protections afforded by provisions of federal constitutional

26 and state constitutional law, including but not limited to rights protected under the

27 Fourth and Fourteenth Amendments to the United States Constitution and Article I,

28 §§1, 7, and 13 oftheCalifomiastateconstitution.

44

1

178. The acts of coercion alleged herein were separate from the unlawful

2 acts of denying Plaintiffs and the members of Classes Two, Four and Six the right

3 to post bail and of treating the immigration detainer as a mandate or authorization

4 to hold Plaintiffs and the Class members.

5

179. Therefore, Plaintiffs and the class are entitled to bring suit and recover

6 · damages pursuant to Cal. Civ. Code §52.1 (b). As a direct and proximate cause of 7 the aforementioned acts, Plaintiffs and class members were damaged in an amount 8 to be proven at trial, are entitled to an award of up to three times such damages, but

9 in any event not less than $4,000 per violation pursuant to the provisions of

10 California Civil Code §52(b).

11

12 X. PRAYERFORRELIEF

13

Wherefore, Plaintiffs respectfully request that the Court grant the following

14 relief:

15

(1) Enter a judgment declaring that Defendants' refusal to allow inmates

16 admitted to bail under state law from posting bail due to the presence of an

17 immigration hold violated state and federal law;

18

(2) Issue an injunction ordering Defendants not to detain any individual

19 solely on the basis of the immigration hold;

20

(3) In the alternative, issue an injunction ordering Defendants not to

21 detain any individual solely on the basis of the immigration hold beyond 48 hours

22 without a probable cause hearing;

23

(4) Enter a judgment declaring that Defendants' detention of Plaintiffs

24 and other members of the proposed class solely on the immigration hold was and is

25 unauthorized by state and federal law;

26

(5) In the alternative, enter a judgment declaring that Defendants'

27 detention of Plaintiffs and other members of the proposed class solely on the

28 immigration hold beyond 48 hours without a probable cause hearing was and is

45

1 unauthorized by federal law;

2

(6) Award Plaintiff Duncan Roy individually compensatory damages

3 according to proof, or (to the extent applicable) up to treble his actual damages

4 pursuant to the provisions of the California Civil Code§ 52(a), whichever is

5 greater;

6

(7) Award Plaintiffs Martinez-Perez and Alliksoo and members of the

7 proposed Damages Classes One, Three and Five general monetary damages on a

8 class wide basis for the time unlawfully spent in LASD custody and establish a

9 procedure for class members to seek individualized damages beyond general

10 damages;

11

(8) Award Plaintiffs Martinez-Perez and Alliksoo and members of the

12 proposed Damages Classes Two, Four and Six up to three times their general

13 monetary damages (to the extent applicable) on a class-wide basis for the time

14 unlawfully spent in LASD custody, or statutory damages of $4000 per violation,

15 whichever is greater, and establish a procedure for class members to seek

16 individualized damages beyond general damages;

17

(9) Award Plaintiffs and other members of the proposed class reasonable

18 attorneys' fees and costs pursuant to 42 U.S.C. § 1988, CCP § 1021.5, and/or

19 California Civil Code§§ 52(b)(3), 52.1(h); and

20

(10) Grant any other relief that this Court may deem fit and proper.

21 22 Dated: October 18, 2012

Respectfully submitted,

23

24

25

By:

l.ll'll''""'IFER PASQUARELLA

26

U Foundation of Southern

27

California

28

46

 
 Case 2:12-cv-09012-BRO-FFM Document 69 Filed 04/27/15 Page 1 of 7 Page ID #:418

UNITED STATES DISTRICT COURT CENTRAL DISTRICT OF CALIFORNIA

LINK:

CIVIL MINUTES – GENERAL

Case No. Title

CV 12–9012 BRO (FFM)

Date April 27, 2015

DUNCAN ROY ET AL V. COUNTY OF LOS ANGELES ET AL

Present: The Honorable BEVERLY REID O’CONNELL, United States District Judge

Renee A. Fisher

Not Present

N/A

Deputy Clerk

Court Reporter

Tape No.

Attorneys Present for Plaintiffs:

Attorneys Present for Defendants:

Not Present

Not Present

Proceedings: (IN CHAMBERS)

ORDER GRANTING DEFENDANTS’ MOTION TO DISMISS AND VACATING PLAINTIFFS’ MOTION TO WITHDRAW AS COUNSEL AS MOOT [63, 65]

I. INTRODUCTION

Pending before the Court are two separate motions. First, the attorneys for the named plaintiffs in this putative class action have filed a Motion to Withdraw as counsel for Plaintiff Christian Michel Varela (“Mr. Varela”). (Dkt. No. 63.) Second, Defendants have filed a Motion to Dismiss Mr. Varela under Federal Rule of Civil Procedure 41(b) for lack of prosecution. (Dkt. No. 65.) Both of these motions stem from Mr. Varela’s deportation and presently unknown location. After consideration of the papers filed in connection with the instant motions, the Court deems these matters appropriate for decision without oral argument of counsel. See Fed. R. Civ. P. 78; C.D. Cal. L.R. 7-15. For the following reasons, Defendants’ Motion to Dismiss is GRANTED. Accordingly, the Motion to Withdraw is VACATED as moot.

II. FACTUAL AND PROCEDURAL BACKGROUND

A. Factual Background

On October 19, 2012, Plaintiffs Duncan Roy (“Mr. Roy”), Annika Alliksoo (“Ms. Alliksoo”), Clemente De La Cerda (“Mr. De La Cerda”), and Mr. Varela (collectively, “Plaintiffs”) filed a putative class action lawsuit against the County of Los Angeles and Los Angeles County Sheriff Leroy D. Baca (collectively, “Defendants”). (Dkt. No. 1.) Collectively, Plaintiffs challenge the legality of two practices of the Los Angeles County Sheriff’s Department (“Sheriff’s Department”). First, Plaintiffs assert that the Sheriff’s

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Department has unlawfully denied bail to individuals on the basis of an immigration hold placed by Immigration and Customs Enforcement (“ICE”). (Compl. ¶ 1.) Second, Plaintiffs allege that the Sheriff’s Department’s practice of denying individuals release from jail for more than forty-eight hours after the charges against them have been dismissed or released violates state and federal law. (Id.)
The putative class action involves two classes, including one for equitable relief and one for damages. (Id. ¶¶ 87–114.) These classes include various subclasses. (Id.) Mr. Varela and Mr. De La Cerda are the named representatives of the Equitable Relief Class. (Id. ¶ 87.) Mr. Varela is the sole named plaintiff for the Equitable Relief Subclass, which seeks relief on behalf of all class members currently in the Sheriff’s Department’s custody who have been detained for more than forty-eight hours solely on the basis of an immigration hold. (Id. ¶ 13.)
Mr. Varela’s involvement in this action stems from an encounter with the Sheriff’s Department on September 18, 2012 when he was arrested for driving a stolen vehicle. (Id. ¶ 84.) According to the Complaint, Mr. Varela in fact borrowed his roommate’s car. (Id.) The roommate, concerned for Mr. Varela’s safety, reported the vehicle and Mr. Varela as missing when Mr. Varela did not return home at the time he had expected. (Id.) Upon Mr. Varela’s arrest, ICE placed an immigration hold on him. (Id. ¶ 85.) Mr. Varela pleaded guilty at his arraignment and was ordered to pay a $200 fine. (Id.) When the judge learned about the immigration hold, however, the judge ordered Mr. Varela to serve 120 days instead. (Id.)
B. Procedural History
At the time this action commenced, Mr. Varela was incarcerated in the Los Angeles County Jail with an expected release date of November 7, 2012. (Id. ¶ 85.) On November 3, 2014, Defendants served interrogatories, requests for admissions, and requests for production on all named plaintiffs. (Decl. of Justin W. Clark in Supp. of Defs.’ Mot. to Dismiss (“Clark Decl.”) ¶ 3.) When Mr. Varela did not respond, Defendants met with Plaintiffs’ counsel to discuss the delay. (Id.) During this meeting, Plaintiffs’ counsel indicated they were having difficulty contacting Mr. Varela and requested an extension of time to respond to attempt and locate him. (Id.)

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Plaintiffs’ counsel has not been able to locate or communicate with Mr. Varela since he became eligible for release from the Los Angeles County Jail and was transferred to ICE’s custody. (Decl. of Jennifer Pasquarella in Supp. of Defs.’ Mot. to Dismiss (“Pasquarella Decl.”) ¶ 4.) In attempting to locate Mr. Varela, Plaintiffs’ counsel contacted Mr. Varela’s former roommate and ex-girlfriend. (Id.) These individuals report that Mr. Varela has been deported. (Id.) Neither has remained in contact with Mr. Varela. (Id.)
Based upon the inability to communicate with Mr. Varela, Plaintiffs’ counsel filed the instant Motion to Withdraw on April 7, 2015. (Dkt. No. 63.) That same day, Defendants filed a Motion to Dismiss Mr. Varela pursuant to Federal Rule of Civil Procedure 41(b) for failure to prosecute. (Dkt. No. 65.) Plaintiffs’ counsel does not oppose this motion. (See Dkt. No. 67.)
III. LEGAL STANDARD
A. Motion to Dismiss Pursuant to Federal Rule of Civil Procedure 41(b)
Pursuant to Federal Rule of Civil Procedure 41(b), a defendant may move to dismiss an action or any claims against it for the plaintiff’s failure to prosecute. Fed. R. Civ. P. 41(b). A district court should weigh the following five factors in determining whether to dismiss a case or claim for failure to prosecute: “(1) the public’s interest in expeditious resolution of litigation; (2) the court’s need to manage its docket; (3) the risk of prejudice to the defendant[]; (4) the public policy favoring the disposition of cases on their merits; and (5) the availability of less drastic sanctions.” In re Eisen, 31 F.3d 1447, 1451 (9th Cir. 1994). A court may presume prejudice to the defendant where the plaintiff’s delay is unreasonable. Citizens Utils. Co. v. Am. Tel. & Tel. Co., 595 F.2d 1171, 1174 (9th Cir. 1979) (citing Alexander v. Pac. Mar. Ass’n, 434 F.2d 281, 283 (9th Cir. 1970)). On the other hand, whether the defendant has in fact suffered any actual prejudice “may be an important factor in deciding whether a given delay is ‘unreasonable.’” Id. (citing Pearson v. Dennison, 353 F.2d 24, 29 (9th Cir. 1965)). District courts have wide discretion in determining whether to dismiss a case or claims for failure to prosecute. Anderson v. Air W., Inc., 542 F.2d 522, 524 (9th Cir. 1976).

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B. Motion to Withdraw as Counsel

“An attorney may not withdraw as counsel except by leave of court.” Darby v. City of Torrance, 810 F. Supp. 275, 276 (C.D. Cal. 1992); see also C.D. Cal. L.R. 832.3.2. “The decision to grant or deny counsel’s motion to withdraw is committed to the discretion of the trial court.” Irwin v. Mascott, No. CV 97-04737 JL, 2004 U.S. Dist. LEXIS 28264, at *3–4 (N.D. Cal. Dec. 1, 2004) (citing Wash. v. Sherwin Real Estate, Inc., 694 F.2d 1081, 1087 (7th Cir. 1982)). In ruling on motions to withdraw, courts have considered the following factors:

(1) the reasons why withdrawal is sought; (2) the prejudice withdrawal may cause to other litigants; (3) the harm withdrawal might cause to the administration of justice; and (4) the degree to which withdrawal will delay the resolution of the case.

Id. at *4 (citing cases). Additionally, the Central District’s Local Rules provide that “[a] motion for leave to withdraw must be supported by good cause.” C.D. Cal. L.R. 832.3.2. Such a motion must give the client and all other parties who have appeared reasonable written notice. Id.

IV. DISCUSSION

A. Defendants’ Rule 41(b) Motion to Dismiss

Defendants seek to dismiss Mr. Varela from this action based upon his failure to prosecute the action. (See Mot. to Dismiss at 1–4.) Defendants also assert that dismissal is appropriate as a sanction under Federal Rule of Civil Procedure 37 based upon Mr. Varela’s failure to respond to Defendants’ discovery requests. (Id. at 4–5.) In this case, the Court finds it most appropriate to consider the motion under Rule 41(b). After applying the factors governing dismissals for failure to prosecute, the Court finds that Mr. Varela should be dismissed from this case.

1. Expeditious Resolution of the Litigation

The public’s interest in expeditious resolution favors dismissal under Rule 41(b). See Yourish v. Cal. Amplifier, 191 F.3d 983, 990 (9th Cir. 1999) (“[T]he public’s interest

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in expeditious resolution of litigation always favors dismissal.”). A court may therefore dismiss a case for lack of prosecution where the plaintiff has unreasonably delayed. In re Eisen, 31 F.3d at 1451.

Mr. Varela was served with discovery requests in November 2014, over five months ago, and he has not yet responded to any of these requests. (See Clark Decl. ¶ 3.) Additionally, since he was transferred to ICE’s custody,1 Mr. Varela has not been in contact with his attorneys. (See Pasquarella Decl. ¶ 4.) Mr. Varela’s absence has delayed discovery and may delay class certification for an entire class of plaintiffs who share an interest this matter’s speedy resolution. Given these circumstances, Mr. Varela’s dismissal is necessary to expedite the litigation and allow this case to proceed.

2. The Court’s Need to Manage its Docket
The second factor—the Court’s need to manage its docket—also favors dismissal. “District courts have inherent power to control their dockets. In the exercise of that power they may impose sanctions including, where appropriate, default or dismissal.” Thompson v. Hous. Auth. of City of L.A., 782 F.2d 829, 831 (9th Cir. 1986). Dismissing Mr. Varela’s individual claims will prevent substantial delay and wasteful pretrial activities. As Mr. Varela has not been in contact with his attorneys, no longer resides at his last known address, and is not in touch with his former associates, issuing an order to show cause or taking other measures short of dismissal are unlikely to reach Mr. Varela or prompt his participation. Instead, such measures would consume further judicial resources and prevent the Court from effectively managing its docket.

3. The Risk of Prejudice to Defendants

The risk of prejudice to Defendants also favors dismissal. The Ninth Circuit has explained that “[t]he law presumes injury from unreasonable delay,” and that even in the absence of actual prejudice, “the failure to prosecute diligently is sufficient by itself to justify a dismissal.” In re Eisen, 31 F.3d at 1453 (quoting Anderson, 542 F.2d at 524).

1 Ms. Pasquarella has not identified Plaintiffs’ counsel’s last date of contact with Mr. Varela. Based on the allegations in the Complaint, Mr. Varela’s 120 days of service in the Los Angeles County Jail expired in November 2012. Assuming he was transferred to ICE’s custody sometime reasonably thereafter, Plaintiffs’ counsel has not communicated with Mr. Varela for over two years.

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Nevertheless, where a plaintiff provides a non-frivolous excuse for delay, the burden shifts to the defendants to demonstrate at least some actual prejudice. Id. (internal citation and quotation marks omitted).
In this case, Mr. Varela has not responded to interrogatories, requests for admissions, and requests for production served by Defendants more than five months ago. (Clark Decl. ¶ 3.) Defendants have already agreed to an extension of time to respond to these discovery requests to permit Plaintiffs’ counsel to attempt to locate Mr. Varela. (Id.) These attempts were wholly unsuccessful. (Pasquarella Decl. ¶ 4.) Assuming Mr. Varela has in fact been deported, the reason for his absence from this case is clearly not “frivolous.” Nevertheless, Defendants have satisfied their burden of showing actual prejudice from the delay. Mr. Varela’s lack of contact with his attorneys suggests he has abandoned his interest in this case. Indeed, as Mr. Varela seeks only equitable relief that will no longer benefit him because he is not in the Los Angeles County Jail’s custody, Mr. Varela’s interest appears remote. Yet, if Mr. Varela remains a named plaintiff in this case, Defendants will be prejudiced, as they will be unable to fully conduct discovery or prepare a cohesive litigation strategy. Defendants should not bear the burden of locating Mr. Varela or waiting upon his return, particularly where the only known facts and circumstances regarding his absence suggest he may not return to this litigation. For these reasons, the Court finds that this factor favors dismissal.
4. The Public Policy Favoring Disposition on the Merits
Public policy favors disposition of cases on the merits and generally strongly weighs against involuntary dismissal. “Although there is indeed a policy favoring disposition on the merits, it is the responsibility of the moving party to move towards that disposition at a reasonable pace, and to refrain from dilatory and evasive tactics.” Morris v. Morgan Stanley & Co., 942 F.2d 648, 652 (9th Cir. 1991). Here, it appears that Mr. Varela did not necessarily abandon this litigation voluntarily; nevertheless, his absence has impeded the resolution of this case. Further, it is not clear when, or even whether, Mr. Varela may be available to participate in this action. Thus, although public policy typically weighs against dismissal, this consideration does not necessarily predominate here, where it is not clear that a resolution on the merits could in fact be reached. For this reason, the Court finds that this factor is neutral.

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5. The Availability of Less Drastic Sanctions

Before dismissing a case or claim, a district court must consider the adequacy of less drastic sanctions. Malone v. U.S. Postal Serv., 833 F.2d 128, 131–32 (9th Cir. 1987). Here, sanctions lesser than dismissal would be ineffective. The Court cannot warn Mr. Varela about the possibility of dismissal, as neither his counsel nor his associates know where he is located. Under the circumstances, Mr. Varela’s dismissal is warranted. Nevertheless, given that the likely reason for Mr. Varela’s absence remains outside his control, the Court finds dismissal without prejudice to be most appropriate in this case. See Arellano v. T-Mobile USA, Inc., No. CV 10-05663 WHA, 2012 WL 3877668, at *2 (N.D. Cal. Sept. 6, 2012) (noting that Rule 41(b) allows dismissal with or without prejudice and dismissing without prejudice where dismissal with prejudice “would be too harsh of a sanction”).

B. Plaintiffs’ Motion to Withdraw as Counsel

Counsel representing Plaintiffs in this case seek to withdraw as attorneys of record for Mr. Varela due to his absence and their inability to locate or communicate with him. (See Dkt. No. 63.) As indicated above, an attorney may not withdraw absent leave from the Court. Because the Court finds that Mr. Varela should be dismissed from this case, the Motion to Withdraw is moot.

V. CONCLUSION

For the forgoing reasons, Defendants’ Motion to Dismiss pursuant to Federal Rule of Civil Procedure 41(b) is GRANTED. Mr. Varela is hereby DISMISSED without prejudice from this case. Plaintiffs’ Motion to Withdraw is accordingly VACATED as moot. The hearing on these matters set for May 11, 2015, at 1:30 p.m., is hereby VACATED.

IT IS SO ORDERED.

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Initials of Preparer

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Case No. Title

CV 12-09012 BRO (FFMx)

Date July 9, 2015

DUNCAN ROY ET AL. V. COUNTY OF LOS ANGELES ET AL.

Present: The Honorable BEVERLY REID O’CONNELL, United States District Judge

Renee A. Fisher

Not Present

N/A

Deputy Clerk

Court Reporter

Tape No.

Attorneys Present for Plaintiffs:

Attorneys Present for Defendants:

Not Present

Not Present

Proceedings: (IN CHAMBERS)

ORDER GRANTING IN PART AND DENYING IN PART DEFENDANTS’ MOTION FOR JUDGMENT ON THE PLEADINGS [71]

I. INTRODUCTION

Pending before the Court is a Motion for Judgment on the Pleadings filed by Defendants County of Los Angeles (the “County”) and Sheriff Leroy D. Baca.1 (Dkt. No. 71.) Defendants seek to dismiss Plaintiffs’ third through eighth claims for relief, all of which arise under state law. After considering the papers filed in support of and in opposition to the instant motion, the Court deems this matter appropriate for resolution without oral argument of counsel. Fed. R. Civ. P. 78; C.D. Cal. L.R. 7-15. For the following reasons, Defendants’ motion is GRANTED in part and DENIED in part.

II. FACTUAL AND PROCEDURAL BACKGROUND

Plaintiffs are a group of individuals who were or are currently in the custody of the Los Angeles County Sheriff’s Department (the “Sheriff’s Department”) and who were denied either bail or release on the basis of an immigration hold. Duncan Roy (“Mr. Roy”) is a British citizen who was allegedly detained for eighty-nine days pursuant to an immigration hold and Defendants’ subsequent refusal to allow him to post bail. (Compl. ¶ 9.) Alain Martinez-Perez (“Mr. Martinez-Perez”) is a Mexican citizen who

1 When Plaintiffs filed the Complaint, Plaintiffs named former sheriff Leroy D. Baca (“Sheriff Baca”) as a defendant in this case. Since filing, Jim McDonnell (“Sheriff McDonnell”) has replaced Sheriff Baca. Pursuant to Federal Rule of Civil Procedure 25, Sheriff McDonnell “is automatically substituted as a party” to this case. See Fed. R. Civ. P. 25(d). The Court will refer to “the Sheriff” generally and to the Sheriff and County collectively as “Defendants.”

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DUNCAN ROY ET AL. V. COUNTY OF LOS ANGELES ET AL.

was detained for six days after Defendants denied him bail and the district attorney declined to file criminal charges. (Compl. ¶ 10.) Annika Alliksoo (“Ms. Alliksoo”) is an Estonian citizen who was detained for a total of eighteen days and held for three days after a state court judge ordered her release. (Compl. ¶ 11.) Clemente De La Cerda (“Mr. De La Cerda”) is a Mexican citizen and a lawful permanent resident. (Compl. ¶ 12.) As of the date of filing, Mr. De La Cerda was still currently in the Sheriff’s Department’s custody pursuant to an immigration hold. (Compl. ¶ 12.)2

Plaintiffs initiated this putative class action on behalf of themselves and others similarly situated.3 Collectively, Plaintiffs challenge the legality of the Sheriff’s Department’s practice of detaining individuals solely on the basis of immigration holds placed by the federal Immigration and Customs Enforcement (“ICE”) agency. (Compl. ¶ 18.) Immigration holds essentially advise local law enforcement agencies that the Department of Homeland Security (“DHS”) seeks to arrest or detain an alien in the agency’s custody. (Compl. ¶¶ 21–22.) According to Plaintiffs, immigration holds are voluntary administrative requests that are not accompanied by the same procedural protections as a criminal detainer or hold. (Compl. ¶¶ 33–34.) For example, ICE agents may assign an immigration hold without probable cause to believe that a person is removable and without a warrant or court order authorizing a person’s deportation. (Compl. ¶¶ 26–27.) Plaintiffs allege that the Sheriff’s Department’s practice of honoring immigration holds has resulted in numerous and widespread unlawful detentions, as the issuance of an immigration hold “does not ensure that ICE will assume custody over the detainee or that ICE will take any action against the detainee.” (Compl. ¶ 37.)

2 The Court will refer to these individuals collectively as “Plaintiffs.”

3 Mr. Roy is proceeding on behalf of himself only. Mr. Martinez-Perez and Ms. Alliksoo seek damages on behalf of all individuals injured by Defendants’ practice of refusing bail requests and detaining individuals beyond the time permitted by state law. (Compl. ¶¶ 10, 11.) Mr. De La Cerda seeks equitable relief on behalf of all individuals who are currently or who will in the future be in Defendants’ custody on the basis of an immigration hold. (Compl. ¶ 12.) Specifically, he seeks to bar Defendants from detaining individuals beyond the time permitted by state law “solely on the basis of an immigration hold not supported by a probable cause determination.” (Compl. ¶ 12.) The Complaint also names Christian Michel Varela (“Mr. Varela”) as a plaintiff in this case. (Compl. ¶ 13.) The Court has previously dismissed Mr. Varela under Federal Rule of Civil Procedure 41(b). (Dkt. No. 69.)

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Case No. Title

CV 12-09012 BRO (FFMx)

Date July 9, 2015

DUNCAN ROY ET AL. V. COUNTY OF LOS ANGELES ET AL.

Plaintiffs challenge two of the Sheriff’s Department practices related to immigration holds. First, Plaintiffs assert that the Sheriff’s Department has engaged in a pattern and practice of unlawfully denying bail to inmates subject to an immigration hold, thereby preventing these individuals from securing their release pending resolution of the charges against them. (Compl. ¶¶ 1, 38–47.) Pursuant to this practice, the Sheriff’s Department allegedly codes the record of every individual subject to a hold with a “no bail” notation, regardless of the individual’s bail eligibility under state law. (Compl. ¶ 40.) Plaintiffs allege that the Sheriff’s Department has “routinely turned away and refused to accept lawfully-tendered bail bonds from bail bondsmen, family members and others when they attempt to lawfully post bail for an inmate.” (Compl. ¶ 41.)
Plaintiffs also contest the Sheriff’s Department’s practice of detaining individuals solely on the basis of an immigration hold and beyond the time or authority permitted under state law to hold an inmate in custody. (Compl. ¶¶ 2, 48–50.) To that end, Plaintiffs allege that the Sheriff’s Department continues to detain inmates subject to immigration holds even when no charges have been filed against them, they have served their sentence, they have posted bail, they are ordered released on their own recognizance, or a jury has acquitted them. (Compl. ¶ 49.) According to Plaintiffs, ICE does not permit local law enforcement agencies to hold an alien for more than forty-eight hours beyond the time he or she would otherwise be released from custody. (Compl. ¶ 23.) Plaintiffs allege that the Sheriff’s Department nevertheless “regularly” detains individuals beyond this forty-eight hour time frame. (Compl. ¶ 49.)
Plaintiffs initiated this action on October 19, 2012, alleging that these two practices violate federal and California state law. (Dkt. No. 1.) Plaintiffs’ first and second claims allege Fourth and Fourteenth Amendment violations under 42 U.S.C. § 1983. The instant motion does not challenge these claims. Rather, Defendants seek to dismiss Plaintiffs’ third through eighth claims, all of which arise under California state law. (Dkt. No. 71.) Plaintiffs’ third and fourth claims allege violations of the California Constitution; the fifth and seventh claims allege false imprisonment and negligence per se; and Plaintiffs’ sixth and eighth claims allege violations of the California Government Code and California

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Civil Code.4 Plaintiffs have opposed Defendants’ Motion for Judgment on the Pleadings, (Dkt. No. 80), and Defendants timely replied, (Dkt. No. 83).

III. LEGAL STANDARD

After the pleadings are closed but early enough not to delay trial, any party may move for judgment on the pleadings. Fed. R. Civ. P. 12(c). “A dismissal on the pleadings for failure to state a claim is proper only if ‘the movant clearly establishes that no material issue of fact remains to be resolved and that he is entitled to judgment as a matter of law.’” McGlinchy v. Shell Chem. Co., 845 F.2d 802, 810 (9th Cir. 1988) (quoting Doleman v. Meiji Mut. Life Ins. Co., 727 F.2d 1480, 1482 (9th Cir. 1984)). The standard applied to Rule 12(c) motions is fundamentally similar to that applied to Rule 12(b)(6) motions. “All allegations of fact by the party opposing the motion are accepted as true,” and the complaint is construed in the light most favorable to the non-moving party. Id. “[C]onclusory allegations without more” are insufficient to defeat a motion for judgment on the pleadings. Id.

As with Rule 12(b)(6) motions, a district court generally may not consider material beyond the pleadings in ruling on a Rule 12(c) motion. Hal Roach Studios, Inc. v. Richard Feiner & Co., 896 F.2d 1542, 1555 n.19 (9th Cir. 1990). Nevertheless, the court may consider “material which is properly submitted as part of the complaint.” Id. The court may also consider documents not physically attached to the complaint so long as their authenticity is not contested and the complaint relies on them. Lee v. City of L.A., 250 F.3d 668, 688 (9th Cir. 2001). Finally, the court “may take judicial notice of ‘matters of public record.’” Id. at 688–89 (quoting Mack v. S. Bay Beer Distrib., 798 F.2d 1279, 1282 (9th Cir. 1986)). Because the court may consider these materials, it need not accept as true “allegations that are contradicted by facts that can be judicially noticed or by other allegations or exhibits attached to or incorporated in the pleading.” 5C Wright & Miller, Federal Practice & Procedure § 1363 (3d ed. 2004).

4 All references to the “Government Code” or “Civil Code” shall be to the applicable California code.

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Case No. Title

CV 12-09012 BRO (FFMx)

Date July 9, 2015

DUNCAN ROY ET AL. V. COUNTY OF LOS ANGELES ET AL.

IV. DISCUSSION

A. Plaintiffs’ Compliance with the California Tort Claims Act

Defendants contend that Plaintiffs’ third through eighth claims must be dismissed to the extent they are brought by Mr. Martinez-Perez and Mr. De La Cerda. According to Defendants, these individuals’ failure to allege compliance with the California Tort Claims Act (“Claims Act”) bars their claims under state law. (Mot. for J. on the Pleadings at 3–4.) The Court begins with a brief overview of the Claims Act’s relevant provisions. The Court then addresses whether the Act precludes Mr. Martinez-Perez or Mr. De La Cerda from proceeding in this case.

Government Code section 911.2 conditions the right to sue a public entity on the timely presentation of a claim. Cal. Gov’t Code § 911.2(a) (“A claim relating to a cause of action for death or for injury to person . . . shall be presented as provided in Article 2 . . . not later than six months after the accrual of the cause of action.”); see also Golden Day Sch., Inc. v. Pirillo, 118 F. Supp. 2d 1037, 1047 (C.D. Cal. 2000). “The Ninth Circuit has held that [s]ection 911.2 does not create mere procedural requirements, but instead provides elements of and conditions precedent to a plaintiff’s state claims.” Golden Day Sch., 118 F. Supp. 2d at 1047 (citing Willis v. Reddin, 418 F.2d 702, 704 (9th Cir. 1969) (“In California[,] statutes or ordinances which condition the right to sue the sovereign upon timely filing of claims and actions are more than procedural requirements. They are elements of the plaintiff’s cause of action and conditions precedent to the maintenance of the action.”)). Where the presentation requirements apply, a plaintiff may not bring suit until he or she presents a claim to the public entity and the entity’s board acts upon or rejects the claim. See Cal. Gov’t Code § 945.4.

Plaintiffs allege that Mr. Roy and Ms. Alliksoo each filed administrative tort claims against the Sheriff’s Department on behalf of themselves and a putative class.5 (Compl. ¶¶ 133, 135.) But Plaintiffs do not allege whether Mr. Martinez-Perez or Mr. De La Cerda filed administrative claims before initiating suit. Defendants argue that this pleading deficiency requires the dismissal of Mr. Martinez-Perez and Mr. De La Cerda’s state law claims. Plaintiffs maintain the claims should not be dismissed, arguing that the

5 Although Mr. Roy is not pursuing claims in a representative capacity, (see Compl. ¶ 62), his administrative claim gave notice of a putative class action, (see Compl. ¶ 133).

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presentation requirement does not apply to Mr. De La Cerda and that Mr. Martinez-Perez is included in the classes identified in Mr. Roy and Ms. Alliksoo’s administrative claims.
1. Mr. De La Cerda
With respect to Mr. De La Cerda, Plaintiffs assert that the Claims Act does not apply because he seeks only injunctive and declaratory relief. (Opp’n at 4.) Indeed, by the Act’s express terms, the presentation requirements apply only to suits for “money or damages.” See Canova v. Trs. of Imperial Irrigation Dist. Emp. Pension Plan, 150 Cal. App. 4th 1487, 1493 (Cal. Ct. App. 2007) (citing Cal. Gov’t Code §§ 905, 945.4), as modified on denial of reh’g June 8, 2007, as modified June 11, 2007. The statute does not apply “to nonpecuniary actions, ‘such as those seeking injunctive, specific or declaratory relief.’” Id. (quoting Loehr v. Ventura Cnty. Cmty. Coll. Dist., 147 Cal. App. 3d 1071, 1081 (Cal. Ct. App. 1983)). Because Mr. De La Cerda seeks only injunctive and declaratory relief, (see Compl. ¶¶ 12, 87), his failure to allege compliance with the Claims Act’s presentation requirements provides no basis for the dismissal of his claims.
2. Mr. Martinez-Perez
Mr. Martinez-Perez seeks money damages, (see Compl. ¶ 10), and must therefore satisfy the Claims Act’s requirements. Plaintiffs argue that his failure to affirmatively allege compliance is immaterial because two other class representatives, Mr. Roy and Ms. Alliksoo, filed timely claims. (Opp’n at 4–7.) Plaintiffs base this argument on the California Supreme Court’s decision in City of San Jose v. Superior Court, 12 Cal. 3d 447 (Cal. 1974). In City of San Jose, the court addressed the issue of whether and when a class claim may satisfy the Claims Act’s presentation requirements. The court first rejected the notion that each individual class member must present a claim in accordance with the Act. City of San Jose, 12 Cal. 3d at 457 (“To require such detailed information in advance of the complaint would severely restrict the maintenance of appropriate class actions—contrary to recognized policy favoring them.”).
Having concluded that the Claims Act permits class claims, City of San Jose adopted a two-part test for determining when a class claim satisfies the statute’s presentation requirements: (1) “[i]s there some compliance with all of the statutory requirements?” and (2) “if so, is this compliance sufficient to constitute substantial

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compliance?” Id. at 456–57. With respect to the first prong of the test, the court reasoned that class claims “must provide the name, address, and other specified information concerning the representative plaintiff and then sufficient information to identify and make ascertainable the class itself. Because such information would meet the statutory requirements . . . , any effort to identify the class would satisfy the some compliance test.” Id. at 457. Beyond this initial showing, the second prong controls and requires that the administrative claim contain sufficient information “to reasonably enable the public entity to make an adequate investigation of the merits of the claim and to settle it without the expense of a lawsuit.” Id. at 456; see also Ardon v. City of L.A., 52 Cal. 4th 241, 248 (Cal. 2011); Eaton v. Ventura Port Dist., 45 Cal. App. 3d 862, 868 (Cal. Ct. App. 1975) (to show substantial compliance, the claim must at a minimum “contain sufficient information to enable the governmental entity, either from its own records . . . or from the claim itself, to reasonably determine the circumstances which it is claimed give rise to liability and the possible outer limits of that liability.”).
The claims filed by Mr. Roy and Ms. Alliksoo are nearly identical.6 (See Decl. of Jennifer Pasquarella in Supp. of Opp’n (“Pasquarella Decl.”) Exs. A, B.) Both were filed on behalf of the claimant and “similarly situated persons” who the Sheriff’s Department detained and “who were entitled to be released from custody (for example, because they were eligible for release on bail), but were denied release (such as by refusing to allow the posting of bail) because of the existence of an immigration hold.” (Id. Exs. A at 2–3,

6 Exhibits A and B represent the amended administrative claims filed by Mr. Roy and Ms. Alliksoo, respectively. Defendants object to these exhibits on the grounds that they contain matters outside the scope of the Complaint and constitute inadmissible hearsay. (See Reply at 17.) Defendants’ first objection is unavailing, as the Court may take judicial notice of matters of public record, see Lee, 250 F.3d at 688–89, and both Exhibits A and B bear a public filing stamp indicating that the claims were recorded with the County of Los Angeles. Defendants’ hearsay objection also lacks merit, as it misconstrues the purpose for which Exhibits A and B are offered. In considering whether Mr. Roy and Ms. Alliksoo’s administrative claims satisfy the Claims Act with respect to Mr. Martinez-Perez, the Court has only taken judicial notice of the existence of the matters contained within these claims, not their truth or veracity. See United States v. S. Cal. Edison Co., 300 F. Supp. 2d 964, 975 (E.D. Cal. 2004) (“While the court may take judicial notice of the general meaning of words, phrases, and legal expressions, documents are judicially noticeable only for the purpose of determining what statements are contained therein, not to prove the truth of the contents or any party’s assertion of what the contents mean.”). The exhibits therefore do not constitute hearsay. See Fed. R. Evid. 801(c) (defining hearsay as an out of court statement offered to prove the truth of the matter asserted).

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B at 2–3.) Both define two sets of classes seeking relief on behalf of persons detained by the Sheriff’s Department, subject to an immigration hold, entitled to release under state law, and denied release pursuant to the hold. (Id. Exs. A at 5, B at 5–6.) And both anticipate identical legal claims, including constitutional violations of the rights to be free from unreasonable searches and seizures, to privacy, and to due process, as well as state claims for false imprisonment, negligence, and violations of Civil Code section 52.1 and Government Code section 815.6. (Id. Exs. A at 6, B at 6.)
The claims clearly satisfy City of San Jose’s “some compliance” prong, as they specify Mr. Roy and Ms. Alliksoo’s names and addresses; the dates, places, and circumstances giving rise to the claims; the names of the public employees and entities causing the alleged harm; a general description of the injuries and legal claims; and that the claims are not limited civil claims. (See generally id. Exs. A and B.) This is sufficient to demonstrate “some compliance” with the Claims Act. See Cal. Gov’t Code § 910 (setting forth the requirements for a valid administrative claim).
Mr. Roy and Ms. Alliksoo’s claims also satisfy the “substantial compliance” prong. The factual and legal basis for Mr. Roy and Ms. Alliksoo’s class claims is similar to the basis for Mr. Martinez-Perez’s claims, as all relate to the same pattern and practice of allegedly unlawful conduct—that is, the Sheriff’s Department’s unlawful detention of individuals pursuant to an immigration hold and unjustified refusal to release such individuals or permit them to post bond. Although the particular facts giving rise to Mr. Martinez-Perez’s claims differ slightly from the facts giving rise to Mr. Roy and Ms. Alliksoo’s,7 the basic nature of his claims is identical to those of the class. Like Mr. Roy and Ms. Alliksoo, Mr. Martinez-Perez contends that state law permitted him to post bail to secure his release, and that Defendants unlawfully detained him pursuant to an immigration hold. Mr. Roy and Ms. Alliksoo’s administrative claims are therefore sufficient to include Mr. Martinez-Perez. See Craft v. Cnty. of San Bernardino, CV No. 05-00359 SGL, 2006 U.S. Dist. LEXIS 96979, at *17–18 (C.D. Cal. March 24, 2006) (finding substantial compliance where the class claims shared a factual and legal basis

7 For example, Mr. Martinez-Perez alleges he was entitled to release under state law once the district attorney determined that no charges should be filed against him. (Compl. ¶ 68.) Mr. Roy’s administrative claim, on the other hand, indicates that state law required his release when a magistrate judge ordered and approved his bail, (Pasquarella Decl. Ex. A), whereas Ms. Alliksoo’s claim indicates she should have been released once a judge ordered her released upon her own recognizance, (id. Ex. B).

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CV 12-09012 BRO (FFMx)

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DUNCAN ROY ET AL. V. COUNTY OF LOS ANGELES ET AL.

and where all of the class claims “relate to a finite event—the allegedly ‘unnecessary, unreasonable and illegal strip and body cavity searches’ of those in the County’s custody.”). Accordingly, Mr. Martinez-Perez’s failure to file an administrative claim does not foreclose his ability to proceed or pursue any of the state law claims alleged in the Complaint. Id. (finding that the fact two class representatives failed to file administrative claims before initiating suit did not bar their claims where a different representative submitted a claim in substantial compliance with section 910).
B. Whether Government Code Section 844.6 Bars Plaintiffs’ State Law Claims
Defendants also contend that Plaintiffs’ state law claims fail under one of the Claims Act’s immunity provisions, section 844.6. Subject to certain exceptions not applicable here, section 844.6 accords broad public entity immunity and provides that such entities are not liable for “[a]n injury to any prisoner.” Cal. Gov’t Code § 844.6(a)(2). As Defendants argue, because Plaintiffs were inmates at the time of the alleged injuries giving rise to their claims for relief, section 844.6 bars these claims in their entirety.8 (Mot. for J. on the Pleadings at 4–5.)
Plaintiffs cite to Sullivan v. County of Los Angeles, 12 Cal. 3d 710 (Cal. 1974), for the proposition that section 844.6 does not apply to claims resulting from unlawful detention. (Opp’n at 7–8.) In Sullivan, the California Supreme Court held that section 844.6 immunity does not apply to cases of false imprisonment. Id. at 717. The plaintiff in that case was held for several days after the expiration of a misdemeanor sentence, apparently due to the superior court’s failure to issue a release order after dismissing the felony counts against him. Id. at 713–14. Following his release, the plaintiff sued the county for false imprisonment. Id. at 714. In finding that section 844.6 did not bar the plaintiff’s false imprisonment claim, the Sullivan court reasoned as follows:
In a false imprisonment case, the “injury” suffered by an individual is the illegal confinement itself rather than any detriment occurring after imprisonment; in other words, false imprisonment is not an “injury to a

8 Although Defendants do not acknowledge as much, the Court notes that section 844.6 expressly applies to public entities only, not public employees. See Cal. Gov’t Code § 844.6. Accordingly, the immunity provided therein, if applicable, would only void Plaintiffs’ claims against the County.

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DUNCAN ROY ET AL. V. COUNTY OF LOS ANGELES ET AL.

prisoner” but instead is an injury to a non-prisoner which converts him into a prisoner. Although the county emphasizes that plaintiff had already been confined in jail at the time of the alleged false imprisonment, the [l]egislature surely did not intend to distinguish between an individual who is wrongfully deprived of his liberty before his jail term starts and one wrongfully deprived of his liberty after his jail term ends. Continued confinement cannot legally make him a “prisoner” when the jail term has expired; in the eyes of the law[,] plaintiff is no longer a “prisoner.”
Id. at 716–17.
Defendants concede that under Sullivan, section 844.6 does not apply to or bar Plaintiffs’ fifth claim for false imprisonment. (See Reply at 14.) Nevertheless, Defendants maintain that Plaintiffs’ attempt to extend Sullivan’s false imprisonment holding to all claims for unlawful detention is unwarranted and overbroad. The Court agrees that Sullivan’s reach was limited to claims for false imprisonment but nevertheless recognizes that its reasoning may be persuasive with respect to Plaintiffs’ remaining state law claims, as each relies on the basic allegation that Defendants unlawfully detained Plaintiffs beyond the time permitted under state law. As section 844.6 confers immunity only with respect to claims of injury “to any prisoner,” the relevant inquiry is whether, at the time of their alleged unlawful detentions, Plaintiffs were “prisoners” within the meaning of the statute.
The Claims Act defines “prisoner” to “include[] an inmate of a prison, jail, or penal or correctional facility.” Cal. Gov’t Code § 844. The definition goes on to explain that “a lawfully arrested person who is brought into a law enforcement facility for the purpose of being booked . . . becomes a prisoner, as a matter of law, upon his or her initial entry into a prison, jail, or penal or correctional facility, pursuant to penal processes.” Id. The legislative committee notes also provide some guidance, indicating that persons in the custody of law enforcement undergoing medical treatment in a county hospital would be considered “prisoners,” but that persons on parole would not. Id.
In interpreting section 844, the California Court of Appeal has observed that “[i]t is not clear whether the statutory definition is intended to be exhaustive of all circumstances in which a person may be prisoner.” Lawson v. Superior Court, 180 Cal. App. 4th 1372,

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CV 12-09012 BRO (FFMx)

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DUNCAN ROY ET AL. V. COUNTY OF LOS ANGELES ET AL.

1386 (Cal. Ct. App. 2010) (comparing Larson v. City of Oakland, 17 Cal. App. 3d 91, 97 (Cal. Ct. App. 1971) (finding that for purposes of section 844, “that which is not included is excluded”) and Datil v. City of L.A., 263 Cal. App. 2d 655, 658 (Cal. Ct. App. 1968) (noting that the word “includes” as used by section 844 “is a word of enlargement and not of limitation”)). The Lawson court assumed that section 844 is not exhaustive and accordingly looked to the “commonly understood meaning of the term ‘prisoner,’” including a person serving time in prison, a person apprehended by and in the custody of law enforcement, and a person held under restraint. Id. The court also surveyed the relevant case law and found that, “for the purposes of governmental immunity, mere presence in a correctional facility—whether voluntarily or involuntary—is not sufficient to confer the status of ‘prisoner’ on the person injured.” Id. Rather, “to come within the purview” of section 844.6, “a prisoner must be a person confined in a correctional facility or institution under the authority of law enforcement authorities or legal process.” Id. at 1386–87 (internal quotation marks omitted) (quoting Patricia J. v. Rio Linda Union Sch. Dist., 61 Cal. App. 3d 278, 287 (Cal. Ct. App. 1976)). This is because “the deprivation of liberty by lawful process or some kind of involuntary restraint [is what] characterizes one’s status as a prisoner or inmate.” Id. at 1387 (internal quotation marks) (quoting Sahley v. Cnty. of San Diego, 69 Cal. App. 3d 347, 349 (Cal. Ct. App. 1977)).
In Lawson, the court concluded that an inmate’s child who resided in a prison facility was not a “prisoner” within the meaning of section 844 because she was not “the subject of any legal restraint” or “confined . . . under any legal compulsion.” Id. The court looked to Sullivan and reasoned that, like the inmate there, who “was not a prisoner during the time he resided in the jail facility without any lawful authority authorizing his confinement,” the child similarly was not held pursuant to legal authority or the legal process. Thus, the child “was not a prisoner as that term is used in . . . section 844.” Id.
In Zeilman v. County of Kern, 168 Cal. App. 3d 1174 (Cal. Ct. App. 1985), the California Court of Appeal reversed summary judgment in favor of the county because triable issues existed with respect to whether the plaintiff was a prisoner within the meaning of section 844. The decision in Zeilman turned on the fact that the plaintiff’s attorney secured an order authorizing the plaintiff’s immediate release upon completion of the booking process. Id. at 1182–83. Because there was a genuine factual issue as to whether the booking process was complete at the time of the plaintiff’s injury, there was also a genuine dispute as to whether the plaintiff was lawfully confined. Id. at 1183; see

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also Reed v. Cnty. of Santa Cruz, 37 Cal. App. 4th 1274, 1278 (Cal. Ct. App. 1995) (discussing Zeilman and reasoning that “[a]s the completion of the booking process should have resulted in Zeilman’s release, the appellate court logically concluded that there was a genuine factual issue as to whether Zeilman was being confined by lawful authority at the time of her fall.”).
Based on the allegations in the Complaint, Plaintiffs here are analogous to those in Sullivan, Lawson, and Zeilman. In essence, Plaintiffs allege they were detained pursuant to immigration holds even though state law authorized their release, whether because the charges against them were dismissed, they were acquitted, a judge ordered their release, they had served their sentence, or they were entitled to post bail. (Compl. ¶¶ 1, 4, 38– 50.) Although Plaintiffs may initially have been taken into custody and held “under the authority of law enforcement authorities or legal process,” Lawson, 180 Cal. App. 4th at 1386–87, Plaintiffs’ continued detention beyond the time authorized by state law could constitute unlawful confinement. Critical to Sullivan, Lawson, and Zeilman’s conclusion that the plaintiffs there were not “prisoners” was the finding that they were not held pursuant to any lawful authority. Because the Court must assume the truth of the allegations at this stage of the proceedings, see McGlinchy, 845 F.2d at 810, and because Plaintiffs allege facts which, if true, would suggest Defendants detained them “without any lawful authority authorizing [their continued] confinement,” see Lawson, 180 Cal. App. 4th at 1387 (discussing Sullivan), the Court cannot conclude as a matter of law that Plaintiffs were “prisoners” within the meaning of section 844. Accordingly, Defendants have failed to demonstrate that section 844.6 bars Plaintiffs’ state law claims.
C. Whether Plaintiffs May Seek Money Damages for Violations of Article I, Sections 7 and 13 of the California Constitution
Plaintiffs’ third and fourth claims allege violations of article I, sections 7 and 13 of the California Constitution. (Compl. ¶¶ 145–52.) Defendants contend that these claims fail because neither provision is “self-executing.”9 (Mot. for J. on the Pleadings at 5–6.)

9 Defendants’ repeated reference to the phrase “self-executing” is misleading. Article I, section 26 of the California Constitution states that “[t]he provisions of this Constitution are mandatory and prohibitory, unless by express words they are declared to be otherwise.” Cal. Const. art. I, § 26. Accordingly, all government actors must comply with state constitutional imperatives, and “[e]very constitutional provision is self-executing to this extent, that everything done in violation of it is void.”

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CV 12-09012 BRO (FFMx)

Date July 9, 2015

DUNCAN ROY ET AL. V. COUNTY OF LOS ANGELES ET AL.

As discussed in further detail below, sections 7 and 13 do not confer private rights of action for damages. Thus, to the extent Plaintiffs’ third and fourth claims seek monetary relief for alleged violations of state constitutional rights, these claims must be dismissed.

1. Article I, Section 7
Article I, section 7 provides that “[a] person may not be deprived of life, liberty, or property without due process of law.” Cal. Const. art. 1, § 7, subd. (a). The California Supreme Court considered whether article I, section 7(a) affords a right to money damages in Katzberg v. Regents of University of California, 29 Cal. 4th 300 (Cal. 2002). The Katzberg decision begins by adopting a framework for determining whether a state constitutional provision provides an action for damages. See id. at 317. Applying this framework, the court held that article I, section 7 does not. Id.

Katzberg is controlling and dispositive of Plaintiffs’ third claim to the extent Plaintiffs seek damages for violations of their due process rights. Plaintiffs apparently concede as much, (see Opp’n at 20), but nevertheless argue that article I, section 7(a) provides a basis for liability under Civil Code section 52.1 and Government Code section 815.6, (see id. at 21–23). Plaintiffs’ sixth and eighth claims allege violations of these statutory provisions. (Compl. ¶¶ 161–68, 174–79.) But whether article I, section 7(a)’s due process guarantee provides a basis for statutory liability is inapposite. Pursuant to Katzberg, it is clear that Plaintiffs may not seek money damages for violations of their state constitutional due process rights.10 Thus, to the extent Plaintiffs’ third claim seeks such relief, this claim is DISMISSED.

Oakland Paving Co. v. Hilton, 69 Cal. 479, 484 (Cal. 1886); see also Katzberg v. Regents of Univ. of Cal., 29 Cal. 4th 300, 306–07 (Cal. 2002). The relevant inquiry here is not whether article I, sections 7 and 13 are “self-executing,” as both provisions are, nor whether these provisions authorize claims for declaratory or injunctive relief, as both provisions do. See Katzberg, 29 Cal. 4th at 307. Thus, the Court considers only whether article I, sections 7 and 13 may support a cause of action for money damages.

10 Plaintiffs similarly argue that article I, section 13 provides a basis for liability on their sixth and eighth claims. Again, however, whether the violation of a state constitutional right may support a statutory claim under Civil Code section 52.1 or Government Code section 815.6 is a separate and distinct inquiry from whether that same state constitutional right provides an independent basis for monetary relief.

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CV 12-09012 BRO (FFMx)

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DUNCAN ROY ET AL. V. COUNTY OF LOS ANGELES ET AL.

2. Article I, Section 13
Article I, section 13 guarantees the right to be free from unreasonable searches and seizures. See Cal. Const. art. I, sec. 13. As discussed above, California courts have expressly rejected damages actions for violations of the right to due process. See Katzberg, 29 Cal. 4th at 329; see also Javor v. Taggart, 98 Cal. App. 4th 795, 807 (Cal. Ct. App. 2002) (“It is beyond question that a plaintiff is not entitled to damages for a violation of the due process clause or the equal protection clause of the state Constitution.”). The California Supreme Court has not, however, addressed whether a plaintiff may seek damages for a violation of article I, section 13.
Various federal district courts facing the issue have concluded that article I, section 13 does not permit actions for money damages. Some of these decisions appear to adopt Katzberg’s general reasoning with respect to article I, section 7(a) without specifically addressing or employing its framework to section 13. See, e.g., Rendon v. Fresno Police Dep’t, CV No. 05-00661, 2006 WL 2694678 OWW, at *21–22 (E.D. Cal. Sept. 18, 2006) (“According to Katzberg, Plaintiff cannot bring a damages claim under §§ 7 or 13 of the California Constitution, in part because alternative statutory and/or common law causes of action are available to redress his grievance.”); Craft, 2006 U.S. Dist. LEXIS 96979, at *10–11 (“Defendants next assert that plaintiffs cannot bring a suit for monetary damages for a violation of sections seven or thirteen to article one to the California Constitution. On this point, defendants are on firm footing as the California Supreme Court has held litigants cannot bring a damage claim directly under those sections to the California Constitution, in part because alternative statutory and/or common law causes of action remain available to redress such grievances.”). Others, while not expressly relying on Katzberg, similarly reason that damages actions are not available because of the existence of alternative statutory or common law claims. See, e.g., Lopez v. Youngblood, 609 F. Supp. 2d 1125, 1142 (E.D. Cal. 2009); Brown v. Cnty. of Kern, CV No. 06-00121, 2008 WL 544565 OWW, at *17 (E.D. Cal. Feb. 26, 2008) (“Plaintiff cannot bring a damages claim directly under Article I, Sections 7 or 13 of the California Constitution, in part because alternative statutory and/or common law causes of action are available to redress his grievances.”); see also Arroyo v. Tilton, CV No. 11-01186, 2012 WL 1551655 DLB, at *7 (E.D. Cal. Apr. 30, 2012) (citing Brown).

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CV 12-09012 BRO (FFMx)

Date July 9, 2015

DUNCAN ROY ET AL. V. COUNTY OF LOS ANGELES ET AL.

These cases, while persuasive, do not clearly dispose of the issue, as they do not employ the framework mandated by Katzberg. As indicated above, Katzberg sets forth a two-step inquiry for determining the existence of a damages action. First, courts must “inquire whether there is evidence from which [the court] may find or infer, within the constitutional provision at issue, an affirmative intent either to authorize or to withhold a damages action to remedy a violation.” 29 Cal. 4th at 317. In doing so, courts may consider “the language and history of the constitutional provision at issue, including whether it contains guidelines, mechanisms, or procedures implying a monetary remedy, as well as any pertinent common law history.” Id. If there is no affirmative intent to authorize or deny a damages action, the court must then undertake a “constitutional tort” analysis, considering various factors such as “whether an adequate remedy exists, the extent to which a constitutional tort action would change established tort law, and the nature and significance of the constitutional provision.” Id. If the factors “militate against” a constitutional tort, the inquiry ends; but if the factors favor such a tort, the court must also consider “any special factors counseling hesitation.” Id.
The district court in Wigfall v. City and County of San Francisco examined article I, section 13 and applied Katzberg’s analytical framework to determine whether a plaintiff may seek damages under the provision. Beginning with the question of intent, the court noted that the provision’s plain text “does not contain any specific authority for the recovery damages.” See CV No. 06-04968, 2007 WL 174434 VRW, at *5 (N.D. Cal. Jan. 22, 2007). The court also found that, similar to article I, section 7(a), section 13 “contains [only] general principles of law” and therefore does not compel any inference of an intent to authorize an action for money damages. Id. Finally, the court considered the provision’s legislative history and found no evidence to suggest the State of California “affirmatively intended to create a damages remedy.” Id.
Finding no intent to authorize or deny a damages action, the Wigfall court proceeded to Katzberg’s second prong and the constitutional tort inquiry. The court focused on the availability of alternative remedies under state and federal law. Id. at 5–6. The plaintiffs could, for example, pursue state civil actions for money damages, as well federal claims under 42 U.S.C. § 1983. Id. Conceding that article I, section 13 may safeguard a significant constitutional right, the court nevertheless rejected the notion that the importance of a constitutional provision alone requires the recognition of a damages action to redress its violation. Id. at 6 (quoting Katzberg, 29 Cal. 4th at 328).

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CV 12-09012 BRO (FFMx)

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DUNCAN ROY ET AL. V. COUNTY OF LOS ANGELES ET AL.

The Court finds Wigfall particularly instructive given its careful analysis of article I, section 13 in accordance with the Katzberg framework. Indeed, other district courts have agreed that its reasoning is persuasive and adopted it in concluding that section 13 does not permit damages actions. See Buzayan v. City of Davis Police Dep’t, CV No. 0601576, 2007 WL 2288334 MCE, at * 8–9 (E.D. Cal. Aug. 8, 2007) (“This Court agrees with the reasoning of the district court [in Wigfall] and finds that there is no remedy of monetary damages under California Constitution article I, § 13.”). Finding no evidence of an intent to authorize or deny a damages action, nor any factors strongly favoring the recognition of a constitutional tort, the Court concludes that article I, section 13 does not confer an action for money damages. Thus, Plaintiffs’ fourth claim is DISMISSED to the extent Plaintiffs seek such relief.
D. Whether Plaintiffs Have Alleged a Claim Under Civil Code Section 52.1
Plaintiffs’ eighth claim alleges violations of the Tom Bane Civil Rights Act (“Bane Act”), Cal. Civ. Code § 52.1. (Compl. ¶¶ 174–79.) The Bane Act creates a civil cause of action where a person interferes or attempts to interfere, “by threat, intimidation, or coercion,” with the exercise or enjoyment of rights secured by the United States or California Constitutions, or by federal or state law. See Cal. Civ. Code § 51.2(a) (setting forth the standard of liability), (b) (authorizing private citizen suits for damages). Defendants seek to dismiss this claim on the basis that Plaintiffs do not allege any threats, intimidation, or coercion independent of the alleged constitutional violations underlying the claim. (Mot. for J. on the Pleadings at 6–10.)
Defendants primarily rely upon two decisions from the California Court of Appeal, Shoyoye v. County of Los Angeles, 203 Cal. App. 4th 947 (Cal. Ct. App. 2012), and Allen v. City of Sacramento, 234 Cal. App. 4th 41 (Cal. Ct. App. 2015), as modified on denial of reh’g Mar. 6, 2015, review denied May 20, 2015. Plaintiffs contend these cases are not controlling, arguing that Shoyoye is limited in scope and that Allen was wrongly decided and is inconsistent with the California Supreme Court’s decision in Venegas v. County of Los Angeles, 32 Cal. 4th 820 (Cal. 2004). Because the impact and scope of these decisions forms the basis for the parties’ dispute, the Court begins with an overview of each.

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UNITED STATES DISTRICT COURT CENTRAL DISTRICT OF CALIFORNIA

LINK:

CIVIL MINUTES – GENERAL

Case No. Title

CV 12-09012 BRO (FFMx)

Date July 9, 2015

DUNCAN ROY ET AL. V. COUNTY OF LOS ANGELES ET AL.

1. The California Supreme Court’s Decision in Venegas
In Venegas, the California Supreme Court considered whether section 52.1 requires a showing of a “discriminatory animus,” or the intent to threaten or coerce “based on the victim’s actual or apparent racial, ethnic, religious, or sexual orientation or other minority status.”11 32 Cal. 4th at 841. The court noted that the language of section 52.1 itself does not restrict the section’s benefits “to persons who are actual or perceived members of a protected class.” Id. at 842–43 (discussing section 52.1 and noting that subdivision (b) permits “[a]ny individual” to sue for civil damages). As the court observed, requiring a discriminatory animus “could have anomalous results, permitting or disallowing recovery based solely on the defendant’s perceptions of the plaintiff’s protected status.” Id. at 843.
The Venegas court also considered its previous decision in Jones v. Kmart Corp., 17 Cal. 4th 329 (Cal. 1998). Although Venegas discussed Jones only to address the issue of discriminatory animus and Jones’s acknowledgment that section 52.1 was adopted in response to a surge of hate crimes, Venegas’s comments about the decision are instructive here. Venegas noted that Jones “simply observ[ed] that the language of section 52.1 provides remedies for ‘certain misconduct that interferes with’ federal or state laws, if accompanied by threats, intimidation, or coercion.” Id. (quoting Jones, 17 Cal. 4th at 338). The court also discounted the county’s argument that permitting actions without any showing of discriminatory animus would lead to a deluge of lawsuits, explaining that section 52.1 “does not extend to all ordinary tort actions because its provisions are limited to threats, intimidation, or coercion that interferes with a constitutional or statutory right.” Id. Ultimately, the court held that a plaintiff need not allege the defendant acted with a discriminatory animus or intent, “so long as those acts were accompanied by the requisite threats, intimidation, or coercion.” Id.
2. The California Court of Appeals’ Decisions in Shoyoye and Allen
The Shoyoye court considered the precise issue the parties dispute here—that is, whether a plaintiff must show threats, intimidation, or coercion independent of the

11 The Bane Act was enacted in 1987 “as part of a renewed effort to combat the disturbing rise in ‘hate crimes,’ or, put otherwise, the rising incidence of civil rights violations motivated by hatred and discrimination.” Venegas, 32 Cal. 4th at 845 (Baxter, J., concurring).

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UNITED STATES DISTRICT COURT CENTRAL DISTRICT OF CALIFORNIA

LINK:

CIVIL MINUTES – GENERAL

Case No. Title

CV 12-09012 BRO (FFMx)

Date July 9, 2015

DUNCAN ROY ET AL. V. COUNTY OF LOS ANGELES ET AL.

constitutional violation where, as in the case of unlawful detention, coercion is inherent in the alleged violation itself. Shoyoye recognized that Venegas did not address the issue and noted that the question was one of “first impression.” See 203 Cal. App. 4th at 957– 58. The court looked to the text of section 52.1, as well as its legislative history, concluding that the section “was intended to address only egregious interferences with constitutional rights,” and that “[t]he act of interference with a constitutional right must itself be deliberate or spiteful.” Id. at 958–59. Thus, “where coercion is inherent in the constitutional violation alleged, i.e., an over-detention in County jail, the statutory requirement of ‘threats, intimidation, or coercion’ is not met.” Id. at 959. In such cases, “[t]he statute requires a showing of coercion independent from the coercion inherent in the wrongful detention itself.” Id.
Allen involved claims by a class of homeless individuals challenging a city ordinance that prohibited camping on public or private property without a permit. See 234 Cal. App. 4th at 46. The court rejected the plaintiffs’ argument that they had adequately pleaded coercion by alleging police officers “forcibly detained” and arrested them for violating the ordinance. Id. at 66–67. As the court reasoned, section 52.1 requires a plaintiff to plead and prove “two distinct elements”: (1) intentional or attempted interference with a federal or state constitutional or other legal right; and (2) that “the interference or attempted interference was by threats, intimidation or coercion.” Id. at 67. The court distinguished cases predating Shoyoye and agreed with Shoyoye’s conclusion that “a wrongful arrest or detention, without more, does not satisfy both elements of section 52.1.” Id. at 69.
3. Plaintiffs’ Allegations
Plaintiffs’ section 52.1 claim is premised upon the basic allegation that Defendants unlawfully detained them by either refusing to release them or denying them bail. (Compl. ¶¶ 174–76.) Their claim thus presents the same type of injury involved in Shoyoye and Allen. Because the claim is based upon a theory of over-detention—a type of unlawful conduct in which coercion is inherent—Plaintiffs must, pursuant to Shoyoye and Allen, allege facts demonstrating that Defendants engaged in wrongful conduct or employed threats, intimidation, or coercion independent of the detention.

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UNITED STATES DISTRICT COURT CENTRAL DISTRICT OF CALIFORNIA

LINK:

CIVIL MINUTES – GENERAL

Case No. Title

CV 12-09012 BRO (FFMx)

Date July 9, 2015

DUNCAN ROY ET AL. V. COUNTY OF LOS ANGELES ET AL.

The Complaint is devoid of any such allegations. Aside from a few conclusory statements,12 Plaintiffs do not allege any facts suggesting that Defendants engaged in any independent wrongful conduct. For example, Plaintiffs do not allege that Defendants threatened, intimidated, or punished them, or even that Defendants treated them any differently than other inmates.13 Nor do Plaintiffs allege that Defendants knew the ICE holds were insufficient to authorize their continued detention. As a result, Plaintiffs’ section 52.1 claim fails as a matter of law. See Allen, 234 Cal. App. 4th at 69 (“Similar to Shoyoye, this case involves an allegedly unlawful arrest but no alleged coercion beyond the coercion inherent in any arrest. . . . The conclusory allegations of ‘forcible’ and ‘coercive’ interference with plaintiffs’ constitutional rights are inadequate to state a cause of action for a violation of section 52.1.”); Shoyoye, 203 Cal. App. 4th at 961–62 (finding the plaintiff did not, as a matter of law, establish a section 52.1 violation where no evidence showed coercion “independent of that inherent in a wrongful detention”).

Plaintiffs attempt to avoid this result by arguing that Shoyoye is limited to cases involving merely negligent conduct, and that Allen’s interpretation of the decision is overbroad. The Court is mindful that in Shoyoye, the over-detention resulted from negligent rather than intentional conduct. But the difference is one without meaning where, as here, Plaintiffs have not alleged any facts suggesting that Defendants intentionally detained them by use of threats, intimidation, or coercion.

Like this case, Shoyoye involved an alleged over-detention in a county jail facility. The Shoyoye court found that the plaintiff had failed to demonstrate independent coercion, as the evidence showed only that jail employees acted negligently in assigning a parole hold to the plaintiff and in failing to detect the error during quality control procedures. 203 Cal. App. 4th at 961. No evidence suggested that the employees knew

12 (See, e.g., Compl. ¶¶ 174–76 (“Such unlawful detention was accomplished through coercion, i.e., the forced continuing incarceration in LASD custody.”); see also Compl. ¶ 178 (“The acts of coercion alleged herein were separate from the unlawful acts of denying Plaintiffs . . . the right to post bail and of treating the immigration detainer as a mandate or authorization to hold Plaintiffs.”).)

13 Plaintiffs argue that they have pleaded independent coercion by alleging Defendants continued to detain them or denied them bail for no reason other than the existence of an ICE hold. (Opp’n at 18– 20.) But these facts are the predicates giving rise to the alleged constitutional violations. As these facts form the basis for the allegedly unlawful detentions, they do not demonstrate coercion independent of the violations themselves.

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UNITED STATES DISTRICT COURT CENTRAL DISTRICT OF CALIFORNIA

LINK:

CIVIL MINUTES – GENERAL

Case No. Title

CV 12-09012 BRO (FFMx)

Date July 9, 2015

DUNCAN ROY ET AL. V. COUNTY OF LOS ANGELES ET AL.

the plaintiff should have been released, or that any employees purposefully threatened, punished, or intimidated him. Id. “Any intimidation or coercion that occurred was simply that which is reasonable and incident to maintaining a jail.” Id. With no evidence of coercion independent of that inherent in a wrongful detention, the plaintiff could not establish a violation of section 52.1. Id. at 961–62.
Shoyoye contrasted its facts with those in Venegas. Venegas arose from a vehicle stop and involved an arguably involuntary search of the plaintiffs’ home and a subsequent arrest and detention based on law enforcement’s erroneous conclusion that the stopped vehicle was stolen. The Shoyoye court distinguished Venegas on the ground that the plaintiffs there offered evidence suggesting the probable cause initially justifying the stop eroded over time, “such that the officers’ conduct became intentionally coercive and wrongful, i.e., a knowing and blameworthy interference with the plaintiffs’ constitutional rights.” Id. at 961.
This case is similar to Shoyoye. The gist of Plaintiffs’ section 52.1 claim is that Defendants unlawfully detained them by honoring ICE holds even though state law permitted their release. Critically, Plaintiffs do not allege any facts to suggest that Defendants knew or should be presumed to know these holds were legally insufficient to justify Plaintiffs’ continued detention. Plaintiffs’ claim is therefore distinguishable from Venegas, as the police officers there could have been found to have known they lacked probable cause. Like the plaintiff in Shoyoye, whose over-detention resulted from an inaccurately assigned parole hold and law enforcement’s failure to recognize the mistake, Plaintiffs’ over-detentions similarly resulted from immigration holds and Defendants’ failure to appreciate their alleged inadequacy. Because Plaintiffs have not alleged any facts suggesting coercion “independent of that inherent in [their] wrongful detention,” Plaintiffs have failed to state a claim under section 52.1. See id. at 961–62.
In sum, the Court finds Shoyoye and Allen controlling and rejects Plaintiffs’ assertion that Venegas requires a different result. Venegas did not address the issue presented here and expressly considered by both Shoyoye and Allen—whether a section 52.1 plaintiff must allege facts independent of an unlawful detention when the detention forms the basis for the claim. Moreover, Venegas’s language is consistent with Shoyoye and Allen’s conclusion that, where coercion is inherent in the alleged rights violation, a plaintiff must plead some wrongful conduct separate and apart from the violation. See 32

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UNITED STATES DISTRICT COURT CENTRAL DISTRICT OF CALIFORNIA

LINK:

CIVIL MINUTES – GENERAL

Case No. Title

CV 12-09012 BRO (FFMx)

Date July 9, 2015

DUNCAN ROY ET AL. V. COUNTY OF LOS ANGELES ET AL.

Cal. 4th at 843 (“[S]ection 52.1 provides remedies for ‘certain misconduct that interferes with’ federal or state laws, if accompanied by threats, intimidation, or coercion . . . . [S]ection 52.1 does not extend to all ordinary tort actions because its provisions are limited to threats, intimidation, or coercion that interferes with a constitutional or statutory right.) (emphasis added). Thus, because Plaintiffs have failed to allege any independent wrongful conduct by Defendants, Plaintiffs’ eighth claim is DISMISSED.
E. Whether Plaintiffs’ Claims Against the Sheriff Should Be Dismissed
Finally, Defendants argue that Plaintiffs’ claims against the Sheriff are in his official capacity only, are duplicative of those against the County, and should therefore be dismissed. (Mot. for J. on the Pleadings at 10–12.) Plaintiffs do not dispute that the Sheriff is named as a defendant in his official capacity only. (See Opp’n at 2 n.1 (noting that all claims against the Sheriff are official capacity claims such that Federal Rule of Civil Procedure 25(d) requires Sheriff McDonnell’s replacement of Sheriff Baca).) Plaintiffs nevertheless contend dismissal is inappropriate here. (Opp’n at 27–30.)
“An official capacity suit against a municipal officer is equivalent to a suit against the entity.” Ctr. for Bio-Ethical Reform, Inc. v. L.A. Cnty. Sheriff Dep’t, 533 F.3d 780, 799 (9th Cir. 2008) (citing Kentucky v. Graham, 473 U.S. 159, 165–66 (1985)). Thus, “[w]hen both a municipal officer and a local government entity are named, and the officer is named only in an official capacity, the court may dismiss the officer as a redundant defendant.” Id. The cases discussing dismissal of redundant defendants use permissive, not mandatory, language, suggesting that dismissal of official capacity suits is not required. See, e.g., id.; Megargee v. Wittman, 550 F. Supp. 2d 1190, 1206 (E.D. Cal. 2008) (citing Luke v. Abbott, 954 F. Supp. 202, 203 (C.D. Cal. 1997) (“For this reason, when both an officer and the local government entity are named in a lawsuit and the officer is named in official capacity only, the officer is a redundant defendant and may be dismissed.”).
In Center for Bio-Ethical Reform, the Ninth Circuit recognized that a claim against Sheriff Baca in his official capacity is equivalent to a suit against the Sheriff’s Department. See 533 F.3d at 799. The same reasoning and result would apply with respect to Sheriff McDonnell. As Plaintiffs point out, however, the Complaint names only the County and the Sheriff as defendants, and the County and Sheriff’s Department

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UNITED STATES DISTRICT COURT CENTRAL DISTRICT OF CALIFORNIA

LINK:

CIVIL MINUTES – GENERAL

Case No. Title

CV 12-09012 BRO (FFMx)

Date July 9, 2015

DUNCAN ROY ET AL. V. COUNTY OF LOS ANGELES ET AL.

are separate and distinct municipal entities. Defendants have not offered any explanation
for why claims against the Sheriff should be considered equivalent to claims against the County. 14 Accordingly, the Court declines to dismiss the Sheriff at this time.

V. CONCLUSION

For the foregoing reasons, Defendants’ Motion for Judgment on the Pleadings is GRANTED in part and DENIED in part. Plaintiffs’ third and fourth claims for violations of article I, sections 7 and 13 of the California Constitution are DISMISSED to the extent Plaintiffs seek monetary relief. Plaintiffs’ eighth claim for violations of the Bane Act under section 52.1 is also DISMISSED. The hearing set for this matter on July 13, 2015, at 1:30 p.m., is hereby VACATED.

IT IS SO ORDERED.

: Initials of Preparer rf

14 Defendants only argue that the Sheriff should be dismissed because they do not intend to either pursue an Eleventh Amendment defense at trial or argue that the Sheriff acts on behalf of the State of California rather than the County. (See Reply at 16–17.) But Defendants affirmatively allege these defenses in their Answer. (See Answer ¶¶ 42, 43.) Given that the pleadings would permit Defendants to assert these defenses, it would be improper to dismiss Plaintiffs’ claims against the Sheriff based solely on Defendants’ representation that they do not intend to do so.

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 Case 2:12-cv-09012-BRO-FFM Document 91 Filed 07/28/15 Page 1 of 11 Page ID #:716

UNITED STATES DISTRICT COURT CENTRAL DISTRICT OF CALIFORNIA

LINK:

CIVIL MINUTES – GENERAL

Case No. Title

CV 12-09012 BRO (FFMx) CV 13-04416 BRO (FFMx)

Date July 28, 2015

DUNCAN ROY ET AL. V. COUNTY OF LOS ANGELES ET AL.

GERARDO GONZALEZ ET AL. V. IMMIGRATION AND CUSTOMS

ENFORCEMENT ET AL.

Present: The Honorable

BEVERLY REID O’CONNELL, United States District Judge

Renee A. Fisher

Not Present

N/A

Deputy Clerk

Court Reporter

Tape No.

Attorneys Present for Plaintiffs:

Attorneys Present for Defendants:

Not Present

Not Present

Proceedings: (IN CHAMBERS)

ORDER GRANTING MOTIONS TO CONSOLIDATE [72], [88] I. INTRODUCTION

Pending before the Court are motions to consolidate two related cases, Duncan Roy et al. v. County of Los Angeles et al., Case No. CV 12-09012 BRO (FFMx) (hereinafter Roy) and Gerardo Gonzalez et al. v. Immigration and Customs Enforcement et al., Case No. CV 13-04416 BRO (FFMx) (hereinafter Gonzalez). The County of Los Angeles (“County”) and Los Angeles County Sheriff (collectively, “County Defendants”), who are parties to the Roy case only, seek to consolidate these matters for all purposes. Both cases raise issues regarding the legality of immigration holds or detainers issued by the federal Immigration and Customs Enforcement (“ICE”) agency. After considering the papers filed in support of and in opposition to the instant motions, the Court deems these matters appropriate for resolution without oral argument of counsel. See Fed. R. Civ. P. 78; C.D. Cal. L.R. 7-15. For the following reasons, County Defendants’ consolidation motions are GRANTED.
II. FACTUAL AND PROCEDURAL BACKGROUND

A. The Roy Action
The Roy case involves a putative class action on behalf of individuals who were or are currently in the custody of the Los Angeles County Sheriff’s Department (“LASD”)

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LINK:

Case No. Title

CIVIL MINUTES – GENERAL

CV 12-09012 BRO (FFMx) CV 13-04416 BRO (FFMx)

Date July 28, 2015

DUNCAN ROY ET AL. V. COUNTY OF LOS ANGELES ET AL.

GERARDO GONZALEZ ET AL. V. IMMIGRATION AND CUSTOMS

ENFORCEMENT ET AL.

and who were denied either bail or release on the basis of an immigration hold, also known as an immigration detainer. Duncan Roy (“Mr. Roy”) is a British citizen who was allegedly detained for eighty-nine days pursuant to an immigration hold and County Defendants’ subsequent refusal to permit him to post bail. (Roy Compl. ¶ 9.) Alain Martinez-Perez (“Mr. Martinez-Perez”) is a Mexican citizen who was detained for six days after County Defendants denied him bail and the district attorney declined to file criminal charges. (Roy Compl. ¶ 10.) Annika Alliksoo (“Ms. Alliksoo”) is an Estonian citizen who was detained for a total of eighteen days and held for three days after a state court judge ordered her release. (Roy Compl. ¶ 11.) Clemente De La Cerda (“Mr. De La Cerda”) is a Mexican citizen and a lawful permanent resident. (Roy Compl. ¶ 12.) As of the date of filing, Mr. De La Cerda remained in LASD’s custody pursuant to an immigration hold. (Roy Compl. ¶ 12.)1

Roy Plaintiffs initiated this putative class action on behalf of themselves and others similarly situated.2 Collectively, Roy Plaintiffs challenge the legality of LASD’s practice of detaining individuals solely on the basis of an ICE-issued immigration hold or detainer. (Roy Compl. ¶ 18.) Immigration holds essentially advise local law enforcement agencies that the Department of Homeland Security (“DHS”) seeks to arrest or detain an alien in the local agency’s custody. (Roy Compl. ¶¶ 21–22.) According to Roy Plaintiffs, immigration holds are voluntary administrative requests that are not accompanied by the same procedural protections as a criminal detainer or hold. (Roy Compl. ¶¶ 33–34.) For example, ICE agents may assign an immigration hold without probable cause to believe a

1 The Court will refer to these individuals and the putative class collectively as “Roy Plaintiffs.”

2 Mr. Roy is proceeding on behalf of himself only. Mr. Martinez-Perez and Ms. Alliksoo seek damages on behalf of all individuals injured by County Defendants’ practice of refusing bail requests and detaining individuals beyond the time permitted by state law. (Roy Compl. ¶¶ 10, 11.) Mr. De La Cerda seeks equitable relief on behalf of all individuals who are currently or who will in the future be in County Defendants’ custody on the basis of an immigration hold. (Roy Compl. ¶ 12.) Specifically, he seeks to bar County Defendants from detaining individuals beyond the time permitted by state law “solely on the basis of an immigration hold not supported by a probable cause determination.” (Roy Compl. ¶ 12.) The Complaint also names Christian Michel Varela (“Mr. Varela”) as a plaintiff in this case. (Roy Compl. ¶ 13.) The Court has previously dismissed Mr. Varela under Federal Rule of Civil Procedure 41(b). (Dkt. No. 69.)

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UNITED STATES DISTRICT COURT CENTRAL DISTRICT OF CALIFORNIA

LINK:

Case No. Title

CIVIL MINUTES – GENERAL

CV 12-09012 BRO (FFMx) CV 13-04416 BRO (FFMx)

Date July 28, 2015

DUNCAN ROY ET AL. V. COUNTY OF LOS ANGELES ET AL.

GERARDO GONZALEZ ET AL. V. IMMIGRATION AND CUSTOMS

ENFORCEMENT ET AL.

person is removable and without a warrant or court order authorizing the person’s deportation. (Roy Compl. ¶¶ 26–27.) Roy Plaintiffs allege LASD’s practice of honoring immigration holds has resulted in numerous and widespread unlawful detentions, as the issuance of an immigration hold “does not ensure that ICE will assume custody over the detainee or that ICE will take any action against the detainee.” (Roy Compl. ¶ 37.)

Roy Plaintiffs challenge two of LASD’s practices related to immigration holds. First, they assert LASD has engaged in a pattern and practice of unlawfully denying bail to inmates subject to an immigration hold, thereby preventing these individuals from securing their release pending resolution of the charges against them. (Roy Compl. ¶¶ 1, 38–47.) Pursuant to this practice, LASD allegedly codes the record of every individual subject to a hold with a “no bail” notation, regardless of the individual’s bail eligibility under state law. (Roy Compl. ¶ 40.) Roy Plaintiffs further allege LASD has “routinely turned away and refused to accept lawfully-tendered bail bonds from bail bondsmen, family members and others when they attempt to lawfully post bail for an inmate” to support this theory of liability. (Roy Compl. ¶ 41.)

Second, Roy Plaintiffs contest LASD’s practice of detaining individuals solely on the basis of an immigration hold and beyond the time or authority permitted under state law to hold an inmate in custody. (Roy Compl. ¶¶ 2, 48–50.) To that end, Roy Plaintiffs aver LASD continues to detain inmates subject to immigration holds even when no charges have been filed against them, they have served their sentence, they have posted bail, they are ordered released on their own recognizance, or a jury has acquitted them. (Roy Compl. ¶ 49.) According to Roy Plaintiffs, ICE does not permit local law enforcement agencies to hold an alien for more than forty-eight hours beyond the time he or she would otherwise be released from custody. (Roy Compl. ¶ 23.) Roy Plaintiffs allege LASD nevertheless “regularly” detains individuals beyond this forty-eight hour time frame. (Roy Compl. ¶ 49.)

Roy Plaintiffs initiated this action on October 19, 2012. (Dkt. No. 1.) The first and second claims allege violations of the Fourth and Fourteenth Amendments to the United States Constitution under 42 U.S.C. § 1983. The third through eighth claims all arise under California state law and allege: (1) violations of the California Constitution; (2)

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UNITED STATES DISTRICT COURT CENTRAL DISTRICT OF CALIFORNIA

LINK:

Case No. Title

CIVIL MINUTES – GENERAL

CV 12-09012 BRO (FFMx) CV 13-04416 BRO (FFMx)

Date July 28, 2015

DUNCAN ROY ET AL. V. COUNTY OF LOS ANGELES ET AL.

GERARDO GONZALEZ ET AL. V. IMMIGRATION AND CUSTOMS

ENFORCEMENT ET AL.

false imprisonment; (3) negligence per se; and (4) violations of the California Government Code and California Civil Code. On July 9, 2015, the Court ruled on County Defendants’ motion for judgment on the pleadings. (Dkt. No. 88.) Pursuant to the order, the Court dismissed Roy Plaintiffs’ claims under the Tom Bane Civil Rights Act (“Bane Act”), Cal. Civ. Code § 52.1, as well as the state constitutional claims to the extent Roy Plaintiffs seek monetary relief. (See id. at 22.)

B. The Gonzalez Action

The Gonzalez case also challenges the legality of ICE immigration holds and detainers. According to the Third Amended Complaint, ICE routinely issues detainers against individuals held by local law enforcement agencies without probable cause to believe the individuals are removable. (Gonzalez TAC ¶ 1.) Plaintiffs Gerardo Gonzalez (“Mr. Gonzalez”) and Simon Chinivizyan (“Mr. Chinivizyan”) seek declaratory and injunctive relief on behalf of themselves and others similarly situated to rescind the immigration holds issued against them and to enjoin ICE from issuing any further such holds in the future.3 (Gonzalez TAC ¶ 10.) Mr. Gonzalez and Mr. Chinivizyan are both United States citizens and residents of California who were detained in a County jail facility pursuant to an ICE-issued immigration hold. (Gonzalez TAC ¶¶ 9, 11–14.) Mr. Gonzalez alleges that the immigration hold prevented him from posting bail to secure his pretrial release. (Gonzalez TAC ¶ 12.) Mr. Chinivizyan alleges that he had been released from criminal custody when he joined this lawsuit and that he remained detained solely on the basis of the immigration hold. (Gonzalez TAC ¶ 14.)

According to Gonzalez Plaintiffs, immigration holds or detainers issued by ICE (currently through Form I-247) serve three purposes. (Gonzalez TAC ¶ 19.) First, the holds advise local law enforcement agencies that ICE seeks custody of an alien presently within the local agency’s custody. (Gonzalez TAC ¶ 19.) Second, the holds request that the local agency apprise ICE before releasing such an alien to permit ICE “to arrange to assume custody, in situations when gaining immediate physical custody is either impracticable or impossible.” (Gonzalez TAC ¶ 19.) Finally, the holds request that the

3 The Court will refer to these plaintiffs and the putative class collectively as “Gonzalez Plaintiffs.”

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LINK:

Case No. Title

CIVIL MINUTES – GENERAL

CV 12-09012 BRO (FFMx) CV 13-04416 BRO (FFMx)

Date July 28, 2015

DUNCAN ROY ET AL. V. COUNTY OF LOS ANGELES ET AL.

GERARDO GONZALEZ ET AL. V. IMMIGRATION AND CUSTOMS

ENFORCEMENT ET AL.

local agency detain the alien for a maximum of forty-eight hours, excluding weekends and holidays, to facilitate ICE’s assumption of custody. (Gonzalez TAC ¶ 19.)

Gonzalez Plaintiffs assert ICE’s practice of issuing immigration holds has resulted in numerous Fourth and Fifth Amendment violations. (Gonzalez TAC ¶ 5.) To that end, Gonzalez Plaintiffs allege that immigration detainers are neither warrants nor court orders, are not approved or issued by a judicial officer, and are not supported by an individualized probable cause determination such that any detentions resulting from immigration holds deprive individuals of their constitutional liberty and due process rights. (Gonzalez TAC ¶¶ 5, 20.) Gonzalez Plaintiffs also believe immigration holds exceed the statutory limitations on ICE’s warrantless arrest and enforcement powers under 8 U.S.C. § 1357(a). (Gonzalez TAC ¶ 6.) According to Gonzalez Plaintiffs, § 1357(a) only permits ICE to arrest or detain an alien if an ICE agent has first made an individualized determination that the particular alien is likely to escape before a warrant could be issued. (Gonzalez TAC ¶ 28.)

In addition to causing unlawful detentions, Gonzalez Plaintiffs allege other adverse impacts from immigration detainers, including:

 Preventing pretrial inmates from posting bail on their criminal charges;

 Limiting the possible terms of a plea; and

 Affecting an inmate’s prison or jail classifications or eligibility for work programs.

(Gonzalez TAC ¶¶ 52–56.)

Gonzalez Plaintiffs initiated this putative class action on June 19, 2013 against ICE and various ICE officials.4 They bring five claims for relief, including two Fourth

4 The original Complaint named five individual defendants. The three remaining individual defendants include Thomas Winkowski, ICE’s acting director; David Marin, the acting field office director for the Los Angeles ICE district; and David Palmatier, the unit chief of ICE’s law enforcement service center.

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LINK:

Case No. Title

CIVIL MINUTES – GENERAL

CV 12-09012 BRO (FFMx) CV 13-04416 BRO (FFMx)

Date July 28, 2015

DUNCAN ROY ET AL. V. COUNTY OF LOS ANGELES ET AL.

GERARDO GONZALEZ ET AL. V. IMMIGRATION AND CUSTOMS

ENFORCEMENT ET AL.

Amendment violations for unlawful seizure and detention, as well as two Fifth Amendment violations for unreasonable detention and procedural due process deprivations. (Gonzalez TAC ¶¶ 106–16.) Gonzalez Plaintiffs also bring one claim under § 706(2) of the Administrative Procedures Act, 5 U.S.C. §§ 701 et seq., alleging that immigration holds are arbitrary and capricious, unconstitutional, exceed ICE’s statutory authority, and do not comply with certain procedures required by law. (Gonzalez TAC ¶¶ 102–05.)

As indicated above, Gonzalez Plaintiffs seek injunctive and declaratory relief for these alleged violations. (See generally Gonzalez TAC Prayer for Relief.) In ruling on ICE Defendants’ motion to dismiss the Third Amended Complaint, the Court upheld the first request for injunctive relief, which seeks rescission of the immigration detainers. (See Dkt. No. 61 at 9.) The Court dismissed the second request for injunctive relief, which seeks an order enjoining ICE Defendants from requesting local law enforcement agencies detain aliens without first determining there is probable cause for the individual’s removal. (Id. at 9–10.) The Court granted Gonzalez Plaintiffs leave to amend this request, but Gonzalez Plaintiffs did not file an amended pleading.

C. Procedural History

On June 8, 2015, County Defendants filed motions to consolidate the Roy and Gonzalez actions.5 Roy Plaintiffs and Gonzalez Plaintiffs are represented by the same counsel and have opposed these motions, arguing that the cases involve different defendants and raise substantially different legal questions and factual issues. ICE Defendants also oppose consolidation on the basis that ICE holds are only requests for local law enforcement agencies to detain aliens, not requirements. According to Roy and

(Gonzalez TAC ¶¶ 16–18.) The Court will refer to these individuals and ICE collectively as “ICE Defendants.”

5 The consolidation motion in Roy is available at Case No. CV 12-09012 BRO (FFMx), Docket No. 72; the consolidation motion in Gonzalez is available at Case No. CV 13-04416 BRO (FFMx), Docket No. 88. Because the motions, oppositions, and replies in each action are essentially identical, the Court will refer to these papers collectively.

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LINK:

Case No. Title

CIVIL MINUTES – GENERAL

CV 12-09012 BRO (FFMx) CV 13-04416 BRO (FFMx)

Date July 28, 2015

DUNCAN ROY ET AL. V. COUNTY OF LOS ANGELES ET AL.

GERARDO GONZALEZ ET AL. V. IMMIGRATION AND CUSTOMS

ENFORCEMENT ET AL.

Gonzalez Plaintiffs, as well as ICE, the different bases for liability in each case counsels against consolidation.

III. LEGAL STANDARD

Federal Rule of Civil Procedure 42(a) permits a court to consolidate actions that “involve a common question of law or fact.” Fed. R. Civ. P. 42(a). “The district court has broad discretion under this rule to consolidate cases pending in the same district.” Inv’rs Research Co. v. U.S. Dist. Court for the Cent. Dist. of Cal., 877 F.2d 777, 777 (9th Cir. 1989). In determining whether to consolidate, a court “weighs the saving of time and effort consolidation would produce against any inconvenience, delay, or expense that it would cause.” Huene v. United States, 743 F.2d 703, 704 (9th Cir. 1984); accord Paxonet Commc’ns, Inc. v. TranSwitch Corp., 303 F. Supp. 2d 1027, 1028 (N.D. Cal. 2003) (“To determine whether to consolidate, a court weighs the interest in judicial convenience against the potential for delay, confusion, and prejudice caused by consolidation.”). While consolidation is generally favored, see Perez-Funez v. Dist. Dir., I.N.S., 611 F. Supp. 990, 994 (C.D. Cal. 1984) (citing Ikerd v. Lapworth, 435 F.2d 197, 204 (7th Cir. 1970)), the moving party bears the burden of showing it is appropriate, see In re Consol. Parlodel Litig., 182 F.R.D. 441, 447 (D.N.J. 1998).

IV. DISCUSSION

County Defendants seek consolidation on the basis that both the Roy and Gonzalez cases involve overlapping factual and legal issues such that consolidation will avoid inconsistent judgments and enhance judicial economy. County Defendants stress that both cases raise the fundamental legal question of whether ICE immigration detainers are constitutional and supported by probable cause. In addition to this foundational question, County Defendants assert both cases will require a determination as to whether ICE immigration holds are merely requests of local law enforcement agencies, or whether the holds impose mandatory detention obligations.

County Defendants also identify common questions of fact. For example, both cases will require extensive fact discovery into ICE’s process and procedures for issuing immigration holds, as well as ICE’s involvement and relationship with local law

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LINK:

CIVIL MINUTES – GENERAL

Case No. Title

CV 12-09012 BRO (FFMx) CV 13-04416 BRO (FFMx)

Date July 28, 2015

DUNCAN ROY ET AL. V. COUNTY OF LOS ANGELES ET AL.

GERARDO GONZALEZ ET AL. V. IMMIGRATION AND CUSTOMS

ENFORCEMENT ET AL.

enforcement agencies like LASD. County Defendants maintain that consolidation will facilitate more efficient discovery, as both cases will require the depositions of many of the same lay witnesses and may rely on the same expert witnesses.

Finally, County Defendants believe consolidation is appropriate given the procedural postures of the Roy and Gonzalez actions. The parties in both cases are engaged in discovery, and neither motions for class certification nor dispositive motions have been filed in either case. Roy and Gonzalez Plaintiffs are also represented by the same counsel, suggesting that consolidation will streamline their discovery efforts.

Roy and Gonzalez Plaintiffs object to consolidation on various grounds. They argue that the similarities identified by County Defendants are minimal in comparison to the different defendants, legal claims, and requests for relief involved in each case. Whereas Gonzalez challenges ICE’s conduct, Roy challenges the County and LASD’s. Whereas Gonzalez Plaintiffs seek only injunctive relief to remedy ICE’s ongoing policies and practices, Roy Plaintiffs seek damages to remedy the County and LASD’s unlawful conduct from October 2010 to the present. And whereas Gonzalez raises legal questions under only the United States Constitution, Roy Plaintiffs also bring claims under the California Constitution, California Government and Civil Codes, and common law.

Roy and Gonzalez Plaintiffs also stress that the potential illegality of ICE’s conduct is separate and distinct from the potential illegality of the County and LASD’s. Thus, whether ICE had probable cause to issue an immigration hold may not be dispositive as to County Defendants’ liability. Roy and Gonzalez Plaintiffs also argue that because each case involves different claims for relief, consolidated discovery will not actually ease the parties’ efforts or save time. For example, because Gonzalez concerns only ICE’s current practices and policies, the discovery will be more limited than in Roy, which involves damages claims for LASD’s past practices and will therefore require discovery into LASD’s conduct from October 2010 to the present at each of its jails, stations, and courthouse lock-ups. Nevertheless, Roy and Gonzalez Plaintiffs do not oppose consolidating discovery against ICE.

ICE Defendants also object to consolidation. Like Roy and Gonzalez Plaintiffs, they maintain that LASD and County Defendant’s actions are entirely independent of

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LINK:

CIVIL MINUTES – GENERAL

Case No. Title

CV 12-09012 BRO (FFMx) CV 13-04416 BRO (FFMx)

Date July 28, 2015

DUNCAN ROY ET AL. V. COUNTY OF LOS ANGELES ET AL.

GERARDO GONZALEZ ET AL. V. IMMIGRATION AND CUSTOMS

ENFORCEMENT ET AL.

their own, and that the different bases for liability in each case counsels against consolidation. To that end, ICE Defendants contend that Gonzalez turns solely on the constitutional questions of whether the Fourth or Fifth Amendments require ICE officers to have probable cause to believe an alien is subject to deportation before issuing an immigration hold. Roy, on the other hand, involves the related but different question of whether law enforcement agencies like LASD may rely on an immigration hold when detaining an individual beyond the time he or she would otherwise be entitled to release. That question, in turn, raises state and federal constitutional questions, statutory questions under the California Government and Civil Codes, and questions under common law.

Additionally, ICE Defendants point to procedural differences between Roy and Gonzalez. The Gonzalez case is scheduled for trial in January 2016, with a discovery cutoff date in November 2015. Roy, on the other hand, is scheduled for trial in August 2016, with discovery permitted until May 2016. The fact finders in each case will be different; whereas Roy Plaintiffs have requested a jury trial, Gonzalez will proceed as a bench trial. ICE Defendants maintain the Roy jury may be confused by the Court’s differing roles in each case.

After considering the parties’ positions and reviewing the substantive allegations and procedural histories in both cases, the Court finds consolidation appropriate for pretrial purposes. At their most basic level, Roy and Gonzalez concern the legality of ICE-issued immigration holds and will require the resolution of whether these holds are, or are required to be, supported by probable cause. Although County Defendants’ liability is independent from ICE Defendants’, this difference does not obviate the need to determine whether ICE-issued immigration holds must be supported by probable cause to be lawful, and whether ICE’s policies and procedures ensure its agents only issue holds after making an individualized probable cause determination. The foundational requirement for consolidation is therefore met, as both actions involve common questions of law and fact.

Moreover, consolidation serves the interests judicial economy. The burdens of discovery on all parties will be eased by coordination, and the Court will save time and

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LINK:

CIVIL MINUTES – GENERAL

Case No. Title

CV 12-09012 BRO (FFMx) CV 13-04416 BRO (FFMx)

Date July 28, 2015

DUNCAN ROY ET AL. V. COUNTY OF LOS ANGELES ET AL.

GERARDO GONZALEZ ET AL. V. IMMIGRATION AND CUSTOMS

ENFORCEMENT ET AL.

resources through consolidated motion practice.6 The Court is mindful that consolidation will lead to some delay in the Gonzalez action, as it is currently scheduled for trial eight months earlier than Roy. “Factors such as differing trial dates or stages of discovery usually weigh against consolidation.” Lewis v. City of Fresno, No. CV 08-01062 OWW, 2009 WL 1948918, at *1 (E.D. Cal. July 6, 2009) (citing 9 Wright & Miller, Federal Practice and Procedure § 2383 (2006)). Nevertheless, given the significant legal and factual overlap between these cases, the risk of inconsistent judgments outweighs the potential burden on the parties in Gonzalez from a litigation delay.

Although Roy and Gonzalez Plaintiffs assert they will suffer prejudice from consolidation, they have not articulated any reason why they believe this to be so. Consolidating these actions for pretrial purposes will result in both cases proceeding under the later deadlines set in Roy; thus, Gonzalez Plaintiffs will not suffer any prejudice from shortened discovery or earlier motion cut-off dates. There is also no risk of confusion to the jury in Roy, as the Court finds consolidation appropriate for pretrial purposes only at this time. Accordingly, the Court finds no risk of prejudice from pretrial consolidation. Given the potential for substantial savings in time, effort, and expense, and in light of the real risk of inconsistent adjudications, the Court finds pretrial consolidation appropriate and favorable.

V. CONCLUSION

For the foregoing reasons, County Defendants’ motions to consolidate are GRANTED. These cases are hereby consolidated for pretrial purposes only. The Court will consider a renewed motion to consolidate these matters for trial at a later date, with any such motion to be filed and heard by no later than June 6, 2016.

6 Roy and Gonzalez Plaintiffs assert that class certification and dispositive motions cannot be consolidated because the cases involve different proposed classes, claims, and requests for relief. But it is well-established that consolidation does not necessarily “merge the suits into a single action, or cause the parties to one action to be parties to another.” 9A Fed. Prac. & Proc. Civ. § 2382 (3d ed.); see also Freeman v. Delta Air Lines, Inc., No. CV 13-04179 JSW, 2014 WL 5830246, at *5 (N.D. Cal. Nov. 10, 2014) (citing Wilbur v. Superior Concrete Accessories, 217 F. Supp. 600, 602 (N.D. Cal. 1963)).

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UNITED STATES DISTRICT COURT CENTRAL DISTRICT OF CALIFORNIA

LINK:

CIVIL MINUTES – GENERAL

Case No. Title

CV 12-09012 BRO (FFMx) CV 13-04416 BRO (FFMx)

Date July 28, 2015

DUNCAN ROY ET AL. V. COUNTY OF LOS ANGELES ET AL.

GERARDO GONZALEZ ET AL. V. IMMIGRATION AND CUSTOMS

ENFORCEMENT ET AL.

For ease of record keeping, all further documents and proceedings shall occur under Case No. CV 12-09012 BRO (FFMx). Case No. CV 13-04416 BRO (FFMx) shall be closed until pretrial proceedings have expired, at which point the case shall be reopened if the matters are not consolidated for trial. Until such time, counsel shall file all further documents under Case No. CV 12-09012 BRO (FFMx) only.

The hearing on County Defendants’ consolidation motions scheduled for August 3, 2015, at 1:30 p.m., is hereby VACATED. The parties are also ordered to attend a mandatory status conference on Monday, August 24, 2015, at 1:30 p.m., to discuss any further issues related to consolidation.

IT IS SO ORDERED.

:

Initials of Preparer

rf

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UNITED STATES DISTRICT COURT CENTRAL DISTRICT OF CALIFORNIA

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CIVIL MINUTES – GENERAL

Case No. Title

CV 12-09012-BRO-(FFMx)

Date September 17, 2015

DUNCAN ROY ET AL. V. COUNTY OF LOS ANGELES ET AL.

Present: The Honorable BEVERLY REID O’CONNELL, United States District Judge

Renee A. Fisher

Not Present

N/A

Deputy Clerk

Court Reporter

Tape No.

Attorneys Present for Plaintiffs:

Attorneys Present for Defendants:

Not Present

Not Present

Proceedings: (IN CHAMBERS)

ORDER RE PLAINTIFFS’ MOTION FOR LEAVE TO AMEND THE SCHEDULING ORDER AND TO AMEND THE PLEADINGS [96]

I. INTRODUCTION
Pending before the Court is Plaintiffs’ Motion for Leave to Amend the Scheduling Order and to Amend the Pleadings. (Dkt. No. 96.) Specifically, Plaintiffs’ Proposed First Amended Complaint seeks to allege four additional claims: three claims under California Civil Code section 52.1, and one claim for denial of equal protection pursuant to 42 U.S.C. § 1983. (See Dkt. No. 96-1.) After considering the papers filed in support of and in opposition to the instant motion, the Court deems this matter appropriate for resolution without oral argument of counsel. See Fed. R. Civ. P. 78; C.D. Cal. L.R. 7-15. For the following reasons, the Court GRANTS in part and DENIES in part Plaintiffs’ Motion for Leave to Amend.
II. FACTUAL AND PROCEDURAL BACKGROUND
A. Factual Background
Plaintiffs are a group of individuals who were or are currently in the custody of the Los Angeles County Sheriff’s Department (“LASD”) and who were denied either bail or release on the basis of an immigration hold. Duncan Roy (“Mr. Roy”) is a British citizen who Defendants allegedly detained for eighty-nine days pursuant to an immigration hold. (Compl. ¶ 9.) Defendants subsequently refused to allow Mr. Roy to post bail. (Id.) Alain Martinez-Perez (“Mr. Martinez-Perez”) is a Mexican citizen that Defendants detained for six days after Defendants denied him bail and the district attorney declined

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Case No. Title

CV 12-09012-BRO-(FFMx)

Date September 17, 2015

DUNCAN ROY ET AL. V. COUNTY OF LOS ANGELES ET AL.

to file criminal charges. (Compl. ¶ 10.) Annika Alliksoo (“Ms. Alliksoo”) is an Estonian citizen who Defendants detained for a total of eighteen days and held for three days after a state court judge ordered Ms. Alliksoo’s release. (Compl. ¶ 11.) Clemente De La Cerda (“Mr. De La Cerda”) is a Mexican citizen and a lawful permanent resident. (Compl. ¶ 12.) As of the date of filing, Mr. De La Cerda was still in the LASD’s custody pursuant to an immigration hold. (Compl. ¶ 12.)1
Plaintiffs initiated this putative class action on behalf of themselves and others similarly situated.2 Collectively, Plaintiffs challenge the legality of the LASD’s practice of detaining individuals solely on the basis of immigration holds placed by the federal Immigration and Customs Enforcement (“ICE”) agency. (Compl. ¶ 18.) Immigration holds advise local law enforcement agencies that the Department of Homeland Security (“DHS”) seeks to arrest or detain an alien in the agency’s custody. (Compl. ¶¶ 21–22.) According to Plaintiffs, immigration holds are voluntary administrative requests that are not accompanied by the same procedural protections as a criminal detainer or hold. (Compl. ¶¶ 33–34.) For example, ICE agents may assign an immigration hold without probable cause to believe that a person is removable and without a warrant or court order authorizing a person’s deportation. (Compl. ¶¶ 26–27.) Plaintiffs allege that the LASD’s practice of honoring immigration holds has resulted in numerous and widespread unlawful detentions, as the issuance of an immigration hold “does not ensure that ICE will assume custody over the detainee or that ICE will take any action against the detainee.” (Compl. ¶ 37.)

1 The Court will refer to these individuals collectively as “Plaintiffs.”
2 Mr. Roy is proceeding on behalf of himself only. Mr. Martinez-Perez and Ms. Alliksoo seek damages on behalf of all individuals injured by Defendants’ practice of refusing bail requests and detaining individuals beyond the time permitted by state law. (Compl. ¶¶ 10, 11.) Mr. De La Cerda seeks equitable relief on behalf of all individuals who are currently or who will in the future be in Defendants’ custody on the basis of an immigration hold. (Compl. ¶ 12.) Specifically, he seeks to bar Defendants from detaining individuals beyond the time permitted by state law “solely on the basis of an immigration hold not supported by a probable cause determination.” (Compl. ¶ 12.) The Complaint also names Christian Michel Varela (“Mr. Varela”) as a plaintiff in this case. (Compl. ¶ 13.) The Court has previously dismissed Mr. Varela under Federal Rule of Civil Procedure 41(b). (Dkt. No. 69.) Plaintiffs’ Proposed Amended Complaint does not list Mr. Valera as a plaintiff in this case.

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CIVIL MINUTES – GENERAL

Case No. Title

CV 12-09012-BRO-(FFMx)

Date September 17, 2015

DUNCAN ROY ET AL. V. COUNTY OF LOS ANGELES ET AL.

Plaintiffs challenge two of the LASD’s practices related to immigration holds. First, Plaintiffs assert that the LASD has engaged in a pattern and practice of unlawfully denying bail to inmates subject to an immigration hold, thereby preventing these individuals from securing their release pending resolution of the charges against them. (Compl. ¶¶ 1, 38–47.) Pursuant to this practice, the LASD allegedly codes the record of every individual subject to a hold with a “no bail” notation, regardless of the individual’s bail eligibility under state law. (Compl. ¶ 40.) Plaintiffs allege that the LASD has “routinely turned away and refused to accept lawfully-tendered bail bonds from bail bondsmen, family members and others when they attempt to lawfully post bail for an inmate.” (Compl. ¶ 41.)
Second, Plaintiffs contest the LASD’s practice of detaining individuals solely on the basis of an immigration hold and beyond the time or authority permitted under state law to hold an inmate in custody. (Compl. ¶¶ 2, 48–50.) To that end, Plaintiffs allege that the LASD continues to detain inmates subject to immigration holds even when no charges have been filed against them, the inmates have served their sentence, the inmates have posted bail, the inmates are ordered released on their own recognizance, or a jury has acquitted them. (Compl. ¶ 49.) According to Plaintiffs, ICE does not permit local law enforcement agencies to hold an alien for more than forty-eight hours beyond the time he or she would otherwise be released from custody. (Compl. ¶ 23.) Plaintiffs maintain that the LASD nevertheless “regularly” detains individuals beyond this fortyeight hour time frame. (Compl. ¶ 49.)
B. Procedural History
Plaintiffs filed their initial complaint on October 19, 2012, alleging that the LASD’s practices constitute false imprisonment and negligence per se, and violate the Fourth and Fourteenth Amendments under 42 U.S.C. § 1983, the California Constitution, article I, sections 7 and 13, California Government Code sections 815.2, 815.6, and the Tom Bane Civil Rights Act, California Civil Code section 52.1. (Dkt. No. 1.) The Court’s Civil Jury Trial Order set October 19, 2014 as the deadline for amending pleadings. (Dkt. No. 45.)
On June 8, 2015, Defendants filed a motion for judgment on the pleadings, (Dkt. No. 71), which the Court granted in part and denied in part on July 9, 2015, (Dkt. No.

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Case No. Title

CV 12-09012-BRO-(FFMx)

Date September 17, 2015

DUNCAN ROY ET AL. V. COUNTY OF LOS ANGELES ET AL.

88). The Court dismissed Plaintiffs’ third and fourth claims for violations of article I, sections 7 and 13 of the California Constitution, to the extent that Plaintiffs sought monetary relief. (Dkt. No. 88 at 22.) The Court also dismissed Plaintiffs’ eighth claim for violations of the Bane Act under section 52.1, because Plaintiffs did not allege any facts suggesting that Defendants engaged in any independent wrongful conduct. (Dkt. No. 88 at 19, 22.) Plaintiffs did not request leave to amend as alternative relief in their opposition to Defendants’ motion for judgment on the pleadings, (Dkt. No. 80), and the Court’s order did not explicitly grant leave to amend, (Dkt. No. 88).
On August 24, 2015, Plaintiffs filed the instant motion seeking to modify the scheduling order and file a first amended complaint to address the pleading defects identified by the Court in Plaintiffs’ previously-dismissed Tom Bane Civil Rights Act Claim, (see Dkt. No. 91), and allege additional claims as a result of newly-discovered evidence. (Dkt. No. 96.) Plaintiffs’ proposed amendments include three alternative claims under California Civil Code section 52.1, and an additional claim for denial of equal protection under 42 U.S.C. § 1983. (Dkt. No. 91.) Defendants opposed Plaintiffs’ Motion for Leave to Amend the scheduling order and pleadings on August 31, 2015. (Dkt. No. 98.) Plaintiffs filed an untimely reply on September 9, 2015, (Dkt. No. 99), but the Court granted Plaintiffs’ Ex Parte Application for enlargement of time to file their Reply on September 14, 2015, (Dkt. No. 106). Accordingly, the Court has considered Plaintiffs’ Reply in its analysis of the merits of Plaintiffs’ Motion.
C. Plaintiffs’ Proposed Amendments
Plaintiffs’ proposed amendments include three alternative claims under California Civil Code section 52.1 and an additional claim for denial of equal protection under 42 U.S.C. § 1983. (Proposed First Am. Compl. (“Proposed FAC”) ¶¶ 152–59, 181–210.) Plaintiffs’ first amended section 52.1 claim avers violations of equal protection of the laws as the seventh cause of action. This claim alleges that Defendants treated ICE detained individuals differently from similarly-situated inmates without ICE detainers by detaining them and refusing to accept bail without a lawful basis. (Proposed FAC ¶¶ 181–92.) Plaintiffs also seek to add a claim for denial of equal protection of the law under 42 U.S.C. § 1983 as their third cause of action on essentially the same grounds. (Proposed FAC ¶¶ 152–59.) The Court will refer to these causes of action, collectively, as Plaintiffs’ “equal protection claims.”

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CIVIL MINUTES – GENERAL

Case No. Title

CV 12-09012-BRO-(FFMx)

Date September 17, 2015

DUNCAN ROY ET AL. V. COUNTY OF LOS ANGELES ET AL.

Plaintiffs’ second proposed section 52.1 claim alleges violations of inmates’ rights to timely release as the eighth cause of action on the grounds that Defendants’ data entries treating ICE detainers as mandatory holds were unlawful, coercive acts separate and independent from their subsequent actual detention based on the ICE detainer. (Proposed FAC ¶¶ 193–200.) Similarly, Plaintiffs’ third proposed section 52.1 claim alleges that Defendants violated Plaintiffs’ right to release on bail as the ninth cause of action on the basis that Defendants’ data entries were unlawful, coercive acts, separate and independent from Defendants’ failure to accept bail on behalf of inmates with ICE holds. (Proposed FAC ¶¶ 201–10.) The Court will refer to these causes of action, collectively, as Plaintiffs’ “section 52.1 claims.”

III. LEGAL STANDARD

A. Leave to Amend Scheduling Order Under Federal Rule of Civil Procedure 16

A motion for leave to amend is generally considered under the permissive standard of Federal Rule of Civil Procedure 15(a). Martinez v. Newport Beach City, 125 F.3d 777 (9th Cir. 1997). “Liberality in granting a plaintiff leave to amend is subject to the qualification that the amendment not cause undue prejudice to the defendant, is not sought in bad faith, and is not futile.” Bowles v. Reade, 198 F.3d 752, 757 (9th Cir. 1999).

Once the district court has entered a pretrial scheduling order pursuant to Federal Rule of Civil Procedure 16, however, Rule 16’s standard controls where the plaintiff’s motion for leave to amend is filed after the deadline imposed by the scheduling order. See Johnson v. Mammoth Recreations, 975 F.2d 604, 607 (9th Cir. 1992); AmerisourceBergen Corp. v. Dialysist W., Inc., 465 F.3d 946, 952 (9th Cir. 2006). “This is because once the scheduling order is in place, the court must modify the scheduling order to permit an amendment.” Mortg. Indus. Sols., Inc. v. Collabera, Inc., No. CV11– 4008–CAS (AGRx), 2013 WL 440644, at *2 (C.D. Cal. Feb. 4, 2013).

“A schedule may be modified only for good cause and with the judge’s consent.” Fed. R. Civ. Pro. 16(b)(4). A court determines good cause by evaluating the diligence of the party seeking the amendment. Johnson, 975 F.2d at 609. “Although the existence or degree of prejudice to the party opposing the modification might supply additional

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Case No. Title

CV 12-09012-BRO-(FFMx)

Date September 17, 2015

DUNCAN ROY ET AL. V. COUNTY OF LOS ANGELES ET AL.

reasons to deny a motion, the focus of the inquiry is upon the moving party’s reasons for seeking modification. If that party was not diligent, the inquiry should end.” Id. (internal citations omitted). Only if good cause is shown for modifying the scheduling order under Rule 16 does the Court consider whether the plaintiff’s amendment is proper under Rule 15. See Collabera, 2013 WL 440644, at *2.
B. Leave to Amend Complaint Under Federal Rule of Civil Procedure 15
As discussed, according to Rule 15, when a party requests leave to amend its pleadings the court “should freely give leave when justice so requires.” Fed. R. Civ. P. 15(a)(2). In Foman v. Davis, the Supreme Court explained that the objective of Rule 15 is to give a plaintiff “an opportunity to test his claim on the merits.” 371 U.S. 178, 182 (1962). Further, the Supreme Court found that a district court should consider the following factors in deciding whether to grant leave to amend: (1) undue delay; (2) bad faith dilatory motive by movant; (3) repeated failure to cure deficiencies by previous amendments; (4) undue prejudice to the opposing party; and (5) futility of the amendment. Id. Not all factors are accorded the same weight; it is the consideration of prejudice to the opposing party that carries the greatest weight in denying leave to amend. Eminence Capital, LLC v. Aspeon, Inc., 316 F.3d 1048, 1052 (9th Cir. 2003). Further, the burden to demonstrate prejudice falls upon the party opposing the amendment. DCD Programs, Ltd. v. Leighton, 833 F.2d 183, 187 (9th Cir. 1987).
“Absent prejudice, or a strong showing of any of the remaining factors, there exists a presumption under Rule 15(a) in favor of granting leave to amend.” Eminence Capital, 316 F.3d at 1052 (citation omitted). Inferences are generally to be performed in favor of granting the motion when assessing the Foman factors. Griggs v. Pace Am. Grp., Inc., 170 F.3d 877, 880 (9th Cir. 1999) (citing DCD Programs, Ltd., 833 F.2d at 186). Courts retain the discretion to deny leave for amendments, but must provide a justification. DCD Programs, Ltd., 833 F.2d at 183.
IV. ANALYSIS
Plaintiffs’ proposed section 52.1 claims attempt to amend Plaintiffs’ prior causes of action under the same statute. Plaintiffs’ proposed equal protection causes of action, on the other hand, are new claims altogether. As such, the Court will separately analyze

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Case No. Title

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Date September 17, 2015

DUNCAN ROY ET AL. V. COUNTY OF LOS ANGELES ET AL.

whether it will grant leave to amend with regard to Plaintiffs’ proposed section 52.1 claims and Plaintiffs’ proposed equal protection claims.
A. The Court Grants Plaintiffs Leave to Amend Their Section 52.l Claims for Violations of Plaintiffs’ Right to Timely Release and Right to Release on Bail
Plaintiffs seek leave to amend their complaint to allege alternative violations of Plaintiffs’ right to timely release and right to release on bail under California Civil Code section 52.1. (Mot. at 2–4.) Granting Plaintiffs leave to file an amended complaint first requires the Court to contemplate modifications to the scheduling order. The Court cannot consider whether Plaintiffs’ amendments are proper under Rule 15 if they do not first demonstrate good cause to modify the scheduling order under Rule 16. See Collabera, 2013 WL 440644, at *2.
The Civil Jury Trial Order designated October 19, 2014, as the last day for filing amended pleadings. (Dkt. No. 45.) As such, granting leave to amend first requires the Court to inquire whether good cause is shown to amend the scheduling order. Should the Court grant leave to allow Plaintiffs to file a first amended complaint, the Court would also be required to modify the scheduling order to permit the Defendants time to file responsive pleadings. Pursuant to the parties’ stipulation to continue trial and pretrial deadlines, the discovery cut-off date in this case is May 31, 2016, and trial is scheduled for August 9, 2016. (Dkt. No. 73.) Because the deadline for discovery is over eight months away, the Court would not need to adjust the discovery cut-off date or the trial date.
1. Plaintiffs Have Demonstrated Good Cause to Warrant Amendment of the Scheduling Order
To determine whether good cause exists to modify the scheduling order, the Court must first determine if the party seeking the modifications acted with diligence. Johnson, 975 F.2d at 609. As explained below, the Court finds that Plaintiffs acted with diligence with respect to its request to amend the scheduling order regarding Plaintiffs’ proposed section 52.1 claims for violations of Plaintiffs’ right to timely release and right to release on bail.

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Date September 17, 2015

DUNCAN ROY ET AL. V. COUNTY OF LOS ANGELES ET AL.

Plaintiffs claim they delayed in seeking this amendment because they first learned of the deficiencies in their section 52.1 claim on July 9, 2015, when the Court granted in part Defendants’ 12(c) Motion for Judgment on the Pleadings. (Mot. at 4; see Dkt. No. 88.) Less than a month after the Court’s order, Plaintiffs filed the present motion for leave to amend the scheduling order and complaint. (See Dkt. No. 96.)
“Motions for judgment on the pleadings under Fed. R. Civ. P. 12(c) and motions to dismiss for failure to state a claim under Fed. R. Civ. P. 12(b)(6) are ‘functionally identical,’ and [the Ninth Circuit] has held that in 12(b)(6) dismissals, leave to amend should be granted even if no request is made unless amendment would be futile.” Pac. W. Grp., Inc. v. Real Time Sols., Inc., 321 F. App’x 566, 569 (9th Cir. 2008) (quoting Dworkin v. Hustler Magazine Inc., 867 F.2d 1188, 1192 (9th Cir.1989)). Under this reasoning, district courts in this Circuit regularly grant leave to amend a complaint after granting a 12(c) motion. See, e.g., Serpa v. SBC Telecomms., Inc., 318 F. Supp. 2d 865, 875 (N.D. Cal. 2004); Robinson v. Fred Meyers Stores, Inc., 184 F. Supp. 2d 968, 972 (D. Ariz. 2002); Moran v. Peralta Cmty. Coll. Dist., 825 F. Supp. 891, 893 (N.D. Cal. 1993).
Though it was proper for Defendants to file a 12(c) motion for judgment on the pleadings rather than a 12(b)(6) motion to dismiss, the timing of Defendants’ 12(c) Motion was such that Plaintiffs’ pleading deficiencies were not apparent until after the deadline for amending pleadings passed. District courts in the Ninth Circuit have held that when need for amendment only becomes apparent after a ruling on the pleadings, parties perform diligently if they promptly seek leave to amend upon entry of the order. See, e.g., C.F. Capistrano Unified Sch. Dist., No. SACV 07–1434 JVS (ANx), 656 F. Supp. 2d 1190, 1194 (C.D. Cal. 2009) (finding that defendants performed diligently in seeking leave to amend when the success of a defense only became apparent after a court ruling3); Tech. Licensing Corp. v. Technicolor USA, Inc., No. CIV. 2:03–1329 WBS EFB, 2010 WL 4070208, at *3 (E.D. Cal. Oct. 18, 2010) (granting leave to amend where plaintiff sought amendment in response to defendant filing a 12(c) motion). Therefore,

3 In C.F. Capistrano Unified School District, the parties filed a proposed briefing schedule on May 22, 2009, (C.F. Capistrano Unified Sch. Dist., No. 8:07-cv-01434, ECF No. 89), 21 days after the court’s order regarding summary judgment. Defendants did not file a motion for leave to file an amended answer until June 8, 2009, over a month after the court’s order. (See id., ECF No. 92.)

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DUNCAN ROY ET AL. V. COUNTY OF LOS ANGELES ET AL.

“any delay in amendment stems from [Defendants’] decision to file a motion for judgment under Rule 12(c) after the pleadings closed instead of a motion to dismiss under Rule 12(b)(6) when the [complaint] was originally filed.”4 Tech. Licensing Corp., 2010 WL 4070208, at *3. In light of the foregoing, the Court finds that Plaintiffs performed diligently and good cause exists to grant leave to amend.5
2. Amendment is Proper Under Rule 15
Having found good cause to amend the Court’s scheduling order, the Court turns to the issue of whether Plaintiffs’ proposed amendment is proper under Rule 15(a)’s liberal standard. As discussed, under Rule 15, a district court should consider the following five factors in deciding whether to grant leave to amend: (1) undue delay; (2) bad faith dilatory motive by movant; (3) repeated failure to cure deficiencies by previous amendments; (4) undue prejudice to the opposing party; and (5) futility of the amendment. Foman v. Davis, 371 U.S. 178, 182 (1962). Because the Court has already found that Plaintiffs’ performed diligently absent undue delay, there is no evidence in this case to suggest that Plaintiffs acted with a bad faith dilatory motive, and Plaintiffs have

4 The Court notes that courts in other circuits have held that a plaintiff’s ignorance of pleading deficiencies until after a motion to dismiss has been filed does not warrant granting leave to amend. Alioto v. Town of Lisbon, 651 F.3d 715, 720 (7th Cir. 2011) (“[P]laintiff argues chiefly that he had no reason to know that his complaint was deficient until the defendants filed their motions to dismiss the complaint. That explanation does not pass muster.”); Wooton v. CL, LLC, 2010 WL 5477192, at *3 (E.D.N.C. Dec. 29, 2010) aff'd, 504 F. App’x 220 (4th Cir. 2013) (“Plaintiff primarily argues that any delay in seeking leave to amend was justified because he required the analysis in the court’s dismissal order to rectify the deficiencies in his first amended complaint. This argument is insufficient.”). The Court declines to adopt this approach in favor of the more lenient standards employed by courts in this Circuit.
5 Plaintiff also argues that good cause exists to warrant leave for amend based on newly-obtained evidence unearthed during discovery supporting their California Civil Code section 52.1 claims. (Mot. at 8.) Because the Court finds good cause to warrant amending the scheduling order as a result of Plaintiffs’ diligence in response to the Court’s Order, the Court need not address Plaintiffs’ argument regarding newly-obtained evidence at this juncture. (But see discussion infra Section IV(B) (discussing Plaintiffs’ lack of diligence in pleading their equal protection claims in light of allegedly newlydiscovered evidence).)

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CV 12-09012-BRO-(FFMx)

Date September 17, 2015

DUNCAN ROY ET AL. V. COUNTY OF LOS ANGELES ET AL.

not previously amended their complaint, the Court finds that the first three Foman factors are not present here. The Court will thus examine the last two Foman factors.
i. The Proposed Amendments Would Not Unduly Prejudice the Defendants
Prejudice carries the greatest weight of the Foman factors. Eminence Capital, 316 F.3d at 1052 (“Prejudice is the ‘touchstone of the inquiry under rule 15(a).’”) (citations omitted). Undue prejudice exists where the claims sought to be added “would have greatly altered the nature of the litigation and would have required defendants to have undertaken, at a late hour, an entirely new course of defense.” Morongo Band of Mission Indians v. Rose, 893 F.2d 1074, 1079 (9th Cir. 1990). Similarly, “[p]rejudice results when an amendment would unnecessarily increase costs or would diminish the opposing party’s ability to respond to the amended pleading.” Fresno Unified Sch. Dist. v. K.U. ex rel. A.D.U., 980 F. Supp. 2d 1160, 1177 (E.D. Cal. 2013) (citing Morongo Band of Mission Indians, 893 F.2d at 1079). Courts have also found prejudice when a motion to amend seeks to change a party’s claim in close proximity to trial, therefore prejudicing the opposition’s ability to prosecute its case. See Hill v. Opus Corp., 841 F.Supp.2d 1070, 1103–04 (C.D.Cal.2011); Lockheed Martin Corp. v. Network Sols., Inc., 194 F.3d 980, 986 (9th Cir.1999) (“A need to reopen discovery and thereby delay the proceedings supports a district court’s finding of prejudice from a delayed motion to amend.”).
Defendants argue they will be prejudiced by the additional work they must undertake to respond to Plaintiffs’ new claims. (Opp’n at 17.) Though it may be true that Defendants will need to gather and present additional evidence and legal arguments, the additional theories of relief for violations of Plaintiffs’ right to timely release and release on bail do not represent a radical shift in the theory of Plaintiffs’ case. Plaintiffs premised their section 52.1 claim in their initial complaint upon the basic allegation that Defendants unlawfully detained Plaintiffs by either refusing to release inmates with ICE holds or denying them bail. (Compl. ¶¶ 174–76.) Plaintiffs’ proposed amended section 52.1 claims for violations of Plaintiffs’ right to timely release and release on bail allege essentially the same underlying facts. (Compare Compl. ¶¶ 174–76, with Proposed FAC ¶¶ 193–210.) Further, given that the discovery cut-off date is not until May 31, 2016, and trial is not scheduled until August 9, 2016, Defendants have ample time to conduct

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DUNCAN ROY ET AL. V. COUNTY OF LOS ANGELES ET AL.

discovery and prepare a response to Plaintiffs’ added claims. Accordingly, the Court finds that Plaintiffs’ proposed amendment does not unduly prejudice the Defendants.

ii. Plaintiffs’ Proposed Amendments to Their Section 52.1 Claims Adequately State a Claim for Relief

“A motion for leave to amend may be denied if it appears to be futile or legally insufficient.” Miller v. Rykoff–Sexton, Inc., 845 F.2d 209, 214 (9th Cir.1988). “Leave to amend need not be given if a complaint, as amended, is subject to dismissal.” Moore v. Kayport Package Exp., Inc., 885 F.2d 531, 538 (9th Cir. 1989). “[A] proposed amendment is futile only if no set of facts can be proved under the amendment to the pleadings that would constitute a valid and sufficient claim or defense.” Id.

In the Court’s order in response to Defendants’ 12(c) Motion for Judgment on the Pleadings, the Court ruled that Plaintiffs must “allege facts demonstrating that Defendants engaged in wrongful conduct or employed threats, intimidation, or coercion independent of the detention.” (Dkt. No. 88 at 18.) Defendants argue that Plaintiffs’ proposed FAC is futile in that Plaintiffs have not alleged that Plaintiffs were intentionally over-detained “by use of threats, intimidation, or coercion.”

Plaintiffs’ proposed FAC differs from the originally-filed complaint in that it alleges that Defendants engaged in coercion by maintaining record-keeping and data entry systems that treated ICE detainers as mandatory holds despite the fact that Defendants knew or should have known that an ICE detainer was a voluntary request. (Proposed FAC ¶ 196.) According to Plaintiffs, these were unlawful, coercive acts separate and independent from the inmates’ subsequent actual detention based on the ICE detainer. (Id. ¶ 197.)

In Shoyoye v. County of Los Angeles, the court found that the plaintiff failed to adequately plead “threat, intimidation, or coercion” where a computer error resulted in the unlawful detention of a prisoner that had been ordered released and “the coercion was not carried out in order to effect a knowing interference with [plaintiff]’s constitutional rights.” 203 Cal. App. 4th 947, 961 (Cal. Ct. App. 2012.) This Court’s order granting Defendants’ 12(c) Motion with respect to Plaintiffs’ section 52.1 claim discussed Shoyoye in great detail and contrasted Shoyoye with the California Supreme Court’s holding in Venegas v. County of Los Angeles, 32 Cal. 4th 820 (Cal. 2004). (Dkt. No. 88

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at 20.) In Venegas, an officer stopped the plaintiffs’ vehicle and arrested and detained the plaintiffs based on law enforcement’s erroneous conclusion that the stopped vehicle was stolen. 32 Cal. 4th at 827–828. The court in Venegas found that the plaintiffs offered sufficient evidence suggesting the probable cause initially justifying the stop eroded over time, “such that the officers’ conduct became intentionally coercive and wrongful, i.e., a knowing and blameworthy interference with the plaintiffs’ constitutional rights.” Shoyoye, 203 Cal. App. 4th at 961.

According to this Court’s July 9, 2015 order, Plaintiffs’ originally-filed complaint did not “allege any facts to suggest that Defendants knew or should be presumed to know the [ICE holds] were legally insufficient to justify Plaintiffs’ continued detention.” (Dkt. No. 88 at 20.) Plaintiffs’ proposed FAC remedies this problem by alleging that Defendants engaged in wrongful, coercive conduct independent from the detention by knowingly marking ICE holds as mandatory in their record-keeping system, which “falsely communicated to employees and agents that ICE holds authorized and required class members to be detained.” (Proposed FAC ¶¶ 197, 204.) As such, Plaintiffs’ proposed FAC alleges that Defendants knowingly interfered with Plaintiffs’ constitutional rights.

To support Plaintiffs’ contention that Defendants knew or should have known that ICE holds are voluntary, Plaintiffs further assert that:

In 2010, ICE submitted communications to Congress explaining that ICE holds are voluntary requests; that ICE had an office in LASD where inquires about ICE’s view of their authority was readily available; that the ICE detention forms on their face were requests and not orders or mandatory detainers; that the relevant federal regulations state that an ICE detainer is a “request”; and that an ICE detainer was not accompanied by a judicial warrant or judicial determination of probable cause.

(Proposed FAC ¶¶ 199, 207.) Accordingly, the Court finds that Plaintiffs sufficiently pleaded that Defendants acted coercively by knowingly interfering with Plaintiffs’ constitutional rights and the proposed amendment would not be futile.

In light of Plaintiffs’ diligence and satisfaction of Rule 15, the Court finds it appropriate to grant Plaintiffs leave to amend their section 52.1 claims.

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DUNCAN ROY ET AL. V. COUNTY OF LOS ANGELES ET AL.

B. The Court Denies Plaintiffs Leave to Amend Their Complaint to Add Their Equal Protection Claims Under California Civil Code Section 52.1 and 42 U.S.C. § 1983
Plaintiffs also seek leave to add claims for denial of equal protection under California Civil Code section 52.1 and 42 U.S.C. § 1983. (Mot. at 4.) As discussed previously, the Court is willing to amend its scheduling order to extend the deadline for filing an amended complaint pursuant to Rule 16, having found good cause with respect to Plaintiffs’ section 52.1 claims for violations of Plaintiffs’ right to timely release and right to release on bail. (See discussion supra Section IV(A)(1).) But with respect to Plaintiffs’ equal protection claims, the Court finds that Plaintiffs have failed to show their diligence in making these amendments.
Unlike the section 52.1 claims for violations of the right to timely release and release on bail previously alleged by Plaintiffs, the equal protection claims under section 52.1 and § 1983 were not brought to Plaintiffs’ attention as a result of pleading deficiencies exposed after Defendants’ 12(c) Motion was filed. Instead, Plaintiffs contend that newly-obtained evidence through discovery warrants leave to amend. (Mot. at 8.) Plaintiffs allege that they discovered new information, including: (1) the fact that the ICE had an office in the LASD where inquiries about ICE’s view of their authority was readily available to the LASD; (2) from at least 2010 until at least May 2014, inmates with ICE holds were denied participation in LASD’s community-based alternatives to custody programs, available to other inmates; (3) the LASD denied inmates with ICE holds early release due to overcrowding, which LASD afforded to other inmates; and (4) the LASD processed persons with ICE detainers differently from inmates with criminal warrants and subjected them to different release procedures. (Mot. at 8–9.)
In response, Defendants argue that the allegedly new evidence is either immaterial or not actually new.6 (Opp’n at 7.) To support the contention that the purportedly new

6 Defendants’ Opposition raises evidentiary objections in an effort to exclude the allegedly new information. (Opp’n at 6–7.) The Court declines to address these objections in the context of Plaintiffs’ Motion to Amend their pleadings. The Court analyzes only Plaintiffs’ allegations, based on information discovered since the filing of Plaintiffs’ initial complaint. The proposed allegations are not offered or considered as facts in substantive support of Plaintiffs’ Motion to Amend.

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DUNCAN ROY ET AL. V. COUNTY OF LOS ANGELES ET AL.

facts were known to the Plaintiffs when the complaint was filed, Defendants claim that Plaintiffs’ counsel had access to “detailed information regarding ICE’s access to the Los Angeles County jails and the relationship between ICE and the LASD . . . since at least 2008, because such information was produced in discovery in Peter Guzman v. Michael Chertoff, et. al, U.S.D.C. Case No. CV 07-03746 GHK (SS),” a matter in which the plaintiffs were represented by Plaintiffs’ counsel in the instant case. (Opp’n at 8.) The plaintiffs in Guzman asserted claims for alleged violations of equal protection and discovery involved the production of various documents related to the relationship between ICE and the LASD. (Id.)
Defendants also note a number of publicly available articles that feature quotations from Plaintiffs’ counsel and discuss ICE’s activities in the Los Angeles County jail system and the Guzman case. (Opp’n at 9–10.) Finally, Defendants contend that many of Plaintiffs’ allegedly newly-discovered facts were included in Plaintiffs’ initial complaint. For example, Plaintiffs claim to have discovered that inmates subject to ICE detainers are “processed . . . differently from inmates with criminal warrants . . . ,” (Battles Decl. in Supp. of Mot. ¶ 2), but Plaintiffs’ initial complaint included the information that, “[u]nlike criminal detainers or holds, an immigration hold is not a judicial order or warrant. Rather, it is solely an administrative request,” (Compl. ¶ 34). (Opp’n at 10.)
The Court agrees with Defendants and finds that the “new” facts cited by Plaintiffs were likely available to them at the time Plaintiffs filed their first complaint on October 19, 2012—almost three years ago. (See Dkt. No. 1.) Plaintiffs’ Motion fails to provide sufficient details associated with this new evidence for the Court to independently determine whether the facts are new. Though Plaintiffs’ Reply includes additional details about the allegedly “new” evidence, including specifics as to how the information was revealed during discovery and by whom, Plaintiffs did not address the publicly-available sources suggesting Plaintiffs’ counsel was familiar with the details of ICE’s interaction with LASD, or the ways Plaintiffs’ initial complaint alludes to facts they claim to have newly discovered. (Reply at 8–9.) The Court therefore finds that Plaintiffs have not met their burden to show they were diligent in seeking leave to amend with regard to Plaintiffs’ equal protection claims. See Johnson, 975 F.2d at 609 (“[C]arelessness is not compatible with a finding of diligence and offers no reason for a grant of relief. . . . If [the moving] party was not diligent, the inquiry should end.”).

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DUNCAN ROY ET AL. V. COUNTY OF LOS ANGELES ET AL.

Because Plaintiffs have not shown diligence in asking this Court to modify the scheduling order to amend their Complaint with respect to their equal protection claims, the Court need not consider whether the Plaintiffs’ proposed amendments with regard to their equal protection claims are proper under Rule 15. See Collabera, 2013 WL 440644, at *2. The Court therefore DENIES Plaintiffs’ Motion for Leave to Amend with respect to Plaintiffs’ equal protection claims.7

V. CONCLUSION

For the foregoing reasons, the Court GRANTS in part and DENIES in part Plaintiffs’ Motion to for Leave to Amend. Plaintiffs must file a First Amended Complaint, pursuant to this Court’s Order, no later than 4 p.m. on Friday, October 2, 2015. The hearing set for September 21, 2015 is hereby VACATED.

IT IS SO ORDERED.

:

Initials of Preparer

rf

7 Defendants also argue that Plaintiffs failed to comply with Local Rule 7-3 and Federal Rule of Civil Procedure 7 with respect to Plaintiffs’ request to add a new claim under 42 U.S.C. § 1983. (Opp’n at 11–12, 17–18.) Although this argument is now moot, given the Court’s findings, the Court notes that Plaintiffs’ counsel provided a draft of the proposed FAC to Defendants thirteen days prior to filing the instant motion, well within the seven day meet and confer requirement outlined by Local Rule 7-3, and provided notice of the claims sufficient to meet the standards of Federal Rule of Civil Procedure 7. (Battles Decl. in Supp. of Pls.’ Reply ¶ 2, Ex. A; see Reply at 11.)

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UNITED STATES DISTRICT COURT CENTRAL DISTRICT OF CALIFORNIA

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Case No. Title

CV 12-09012-BRO (FFMx)

Date November 20, 2015

DUNCAN ROY ET AL. V. COUNTY OF LOS ANGELES ET AL.

Present: The Honorable BEVERLY REID O’CONNELL, United States District Judge

Renee A. Fisher

Not Present

N/A

Deputy Clerk

Court Reporter

Tape No.

Attorneys Present for Plaintiffs:

Attorneys Present for Defendants:

Not Present

Not Present

Proceedings: (IN CHAMBERS)

ORDER GRANTING IN PART AND DENYING IN PART DEFENDANTS’ MOTION TO DISMISS PLAINTIFFS’ FIRST AMENDED COMPLAINT AND GRANTING DEFENDANTS’ MOTION TO STRIKE PARAGRAPHS 60 AND 61
OF THE FIRST AMENDED COMPLAINT [112]

I. INTRODUCTION
Pending before the Court is Defendants’ Motion to Dismiss Plaintiffs’ First Amended Complaint (also referred to as “FAC”) and Motion to Strike paragraphs 60 and 61 of the First Amended Complaint. (Dkt. No. 112.) After considering the papers filed in support of and in opposition to the instant Motion, the Court deems this matter appropriate for resolution without oral argument of counsel. See Fed. R. Civ. P. 78; C.D. Cal. L.R. 7-15. For the following reasons, the Court GRANTS in part and DENIES in part Defendants’ Motion to Dismiss and GRANTS Defendants’ Motion to Strike.
II. FACTUAL AND PROCEDURAL BACKGROUND
A. Factual Background
Plaintiffs are a group of individuals who were or are currently in the custody of the Los Angeles County Sheriff’s Department (“LASD”) and who were denied either bail or release on the basis of an immigration hold. Plaintiffs initiated this putative class action on behalf of themselves and others similarly situated.1 Collectively, Plaintiffs challenge

1 Plaintiff Duncan Roy is proceeding on behalf of himself only. Plaintiff Alain Martinez-Perez and Plaintiff Annika Alliksoo seek damages on behalf of all individuals injured by Defendants’ practice of refusing bail requests and detaining individuals beyond the time permitted by state law. (FAC ¶¶ 10,

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Date November 20, 2015

DUNCAN ROY ET AL. V. COUNTY OF LOS ANGELES ET AL.

the legality of the LASD’s practice of detaining individuals solely on the basis of immigration holds placed by the federal Immigration and Customs Enforcement (“ICE”) agency. (FAC ¶ 18.)
Immigration holds advise local law enforcement agencies that the Department of Homeland Security (“DHS”) seeks to arrest or detain an alien in the agency’s custody. (FAC ¶ 21.) According to Plaintiffs, immigration holds are voluntary requests that are not accompanied by the same procedural protections as a criminal detainer or hold. (FAC ¶ 32.) For example, ICE agents may assign an immigration hold without probable cause to believe that a person is removable and without a warrant or court order authorizing a person’s deportation. (FAC ¶¶ 25–26.) Plaintiffs allege that the LASD’s practice of honoring immigration holds has resulted in numerous and widespread unlawful detentions, as the issuance of an immigration hold “does not ensure that ICE will assume custody over the detainee or that ICE will take any action against the detainee.” (FAC ¶ 46.)
Plaintiffs challenge three of the LASD’s practices related to immigration holds. First, Plaintiffs assert that the LASD has engaged in a pattern and practice of unlawfully denying bail to inmates subject to an immigration hold, thereby preventing these individuals from securing their release pending resolution of the charges against them. (FAC ¶¶ 1, 47–55.) Pursuant to this practice, the LASD allegedly codes the record of every individual subject to a hold with a “no bail” notation, regardless of the individual’s bail eligibility under the county bail schedule or a court order. (FAC ¶ 49.) Plaintiffs allege that the LASD has “routinely turned away and refused to accept lawfully-tendered bail bonds from bail bondsmen, family members and others when they attempt to lawfully post bail for an inmate.” (FAC ¶ 50.)

11.) Plaintiff Clemente De La Cerda seeks equitable relief on behalf of all individuals who are currently or who will in the future be in Defendants’ custody on the basis of an immigration hold. (FAC ¶ 12.) Specifically, he seeks to bar Defendants from detaining individuals beyond the time permitted by state law “solely on the basis of an immigration hold not supported by a probable cause determination.” (Id.) Portions of the First Amended Complaint also reference Christian Michel Varela. (See, e.g., FAC ¶¶ 95, 99, 111, 143 n.5.) This appears to be a typographical error, however, because the Court previously dismissed Mr. Varela under Federal Rule of Civil Procedure 41(b). (Dkt. No. 69.)

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Date November 20, 2015

DUNCAN ROY ET AL. V. COUNTY OF LOS ANGELES ET AL.

Second, Plaintiffs contest the LASD’s practice of prolonging the detention of individuals based solely of an immigration hold after the expiration of any state law authority to hold an inmate in custody. (FAC ¶¶ 1, 57–59.) To that end, Plaintiffs allege that the LASD continues to detain inmates subject to immigration holds even when no charges have been filed against them, the inmates have served their sentence, the inmates have posted bail, the inmates are ordered released on their own recognizance, or a jury has acquitted them. (FAC ¶ 58.) According to Plaintiffs, ICE does not permit local law enforcement agencies to hold an alien for more than forty-eight hours beyond the time he or she would otherwise be released from custody. (FAC ¶ 22.) Plaintiffs maintain that the LASD nevertheless “regularly” detains individuals beyond this forty-eight hour time frame. (FAC ¶ 58.)
Finally, Plaintiffs allege that the LASD treats inmates with ICE holds differently from similarly-situated inmates without ICE holds. (FAC ¶ 60–61.) Plaintiffs aver that the LASD denied inmates with ICE holds participation in and release to LASDadministered community-based alternatives to custody programs. In addition, Plaintiffs maintain that they were precluded from court-ordered release to drug rehabilitation, mental health hospitals, and other alternatives to custody programs. The LASD thereby required the inmates to remain in custody while similarly-situated inmates without ICE holds were released. (FAC ¶ 60.) Plaintiffs also claim that the LASD subjects inmates with ICE holds to different procedures and treatment when they are processed for release from custody, including denying inmates with ICE holds consideration for release into work release or electronic monitoring release programs. (FAC ¶ 61.)
B. Procedural History
Plaintiffs filed their initial complaint on October 19, 2012, alleging that the LASD’s practices constitute false imprisonment and negligence per se. Plaintiffs claim that the LASD’s actions violate the Fourth and Fourteenth Amendments under 42 U.S.C. § 1983, the California Constitution, article I, sections 7 and 13, California Government Code sections 815.2, 815.6, and the Tom Bane Civil Rights Act, California Civil Code section 52.1. (Dkt. No. 1.) The Court issued its Civil Jury Trial Order setting October 19, 2014 as the deadline for amending pleadings. (Dkt. No. 45.)

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CV 12-09012-BRO (FFMx)

Date November 20, 2015

DUNCAN ROY ET AL. V. COUNTY OF LOS ANGELES ET AL.

On June 8, 2015, Defendants filed a motion for judgment on the pleadings, (Dkt. No. 71), which the Court granted in part and denied in part on July 9, 2015, (Dkt. No. 88). The Court dismissed Plaintiffs’ third and fourth claims for violations of article I, sections 7 and 13 of the California Constitution and Plaintiffs’ eighth claim for violations of the Tom Bane Civil Rights Act under California Civil Code section 52.1. (Dkt. No. 88 at 19, 22.)
On August 24, 2015, Plaintiffs filed a motion seeking to modify the scheduling order and for leave to file a first amended complaint. (Dkt. No. 96.) Plaintiffs sought to address the pleading defects identified by the Court in Plaintiffs’ previously-dismissed Tom Bane Civil Rights Act Claim and to allege additional claims as a result of newlydiscovered evidence. (Id.) The Court granted Plaintiffs leave to amend their section 52.1 claims for violations of Plaintiffs’ right to timely release and right to release on bail, but denied Plaintiffs leave to amend their complaint to add allegations supporting equal protection claims under California Civil Code section 52.1 and 42 U.S.C. § 1983. (Dkt. No. 107.)
Plaintiffs filed their First Amended Complaint on October 2, 2015. (Dkt. No. 109.) Plaintiffs’ first and second claims allege Fourth and Fourteenth Amendment violations under 42 U.S.C. § 1983. (FAC ¶¶ 143–51.) The instant motion does not challenge these claims. Rather, Defendants seek to dismiss Plaintiffs’ fourth cause of action for false imprisonment; fifth cause of action for violations of California Government Code sections 815.2 and 815.6; sixth cause of action for negligence per se; eighth cause of action for violation of the right to timely release pursuant to California Civil Code section 52.1; and, ninth cause of action for violation of the right to release on bail pursuant to California Civil Code section 52.1. (FAC ¶¶ 152–210.)
Defendants filed the instant Motion to Dismiss Plaintiffs’ First Amended Complaint and Motion to Strike paragraphs 60 and 61 of the First Amended Complaint on October 26, 2015. (Dkt. No. 112.) Plaintiffs timely opposed the motion on November 2, 2015, (Dkt. No. 115), and Defendants timely replied on November 9, 2015, (Dkt. No. 119). On November 20, 2015, Defendants filed a Supplement with the Court, and attached the recently published opinion in King v. California, __ Cal. Rptr. 3d __, 2015 Cal. App. LEXIS 1027 (Cal. Ct. App. Nov. 18, 2015). (Dkt. No. 123.)

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UNITED STATES DISTRICT COURT CENTRAL DISTRICT OF CALIFORNIA

LINK:

CIVIL MINUTES – GENERAL

Case No. Title

CV 12-09012-BRO (FFMx)

Date November 20, 2015

DUNCAN ROY ET AL. V. COUNTY OF LOS ANGELES ET AL.

III. LEGAL STANDARD
A. Motion To Dismiss
Under Rule 8(a), a complaint must contain a “short and plain statement of the claim showing that the [plaintiff] is entitled to relief.” Fed. R. Civ. P. 8(a). If a complaint fails to do this, the defendant may move to dismiss it under Rule 12(b)(6). Fed. R. Civ. P. 12(b)(6). “To survive a motion to dismiss, a complaint must contain sufficient factual matter, accepted as true, to ‘state a claim to relief that is plausible on its face.’” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (quoting Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570 (2007)). A claim is plausible on its face “when the plaintiff pleads factual content that allows the court to draw the reasonable inference that the defendant is liable for the misconduct alleged.” Id. “Factual allegations must be enough to raise a right to relief above the speculative level.” Twombly, 550 U.S. at 555. Thus, there must be “more than a sheer possibility that a defendant has acted unlawfully.” Iqbal, 556 U.S. at 678. “Where a complaint pleads facts that are ‘merely consistent with’ a defendant’s liability, it ‘stops short of the line between possibility and plausibility’” that the plaintiff is entitled to relief. Id.
Where a district court grants a motion to dismiss, it should provide leave to amend unless it is clear that the complaint could not be saved by any amendment. Manzarek v. St. Paul Fire & Marine Ins. Co., 519 F.3d 1025, 1031 (9th Cir. 2008) (“Dismissal without leave to amend is improper unless it is clear, upon de novo review, that the complaint could not be saved by any amendment.”). Leave to amend, however, “is properly denied . . . if amendment would be futile.” Carrico v. City & Cty. of S.F., 656 F.3d 1002, 1008 (9th Cir. 2011).
B. Motion To Strike
Under Federal Rule of Civil Procedure 12(f), a district court “may strike from a pleading an insufficient defense or any redundant, immaterial, impertinent, or scandalous matter.” Fed. R. Civ. P. 12(f). The role of a Rule 12(f) motion to strike is to avoid the expense of time and money that results from litigating “spurious issues” by discarding those issues before trial. Whittlestone, Inc. v. Handi-Craft Co., 618 F.3d 970, 973 (9th Cir. 2010) (quoting Fantasy, Inc. v. Fogerty, 984 F.2d 1524, 1527 (9th Cir.1993), rev’d

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LINK:

CIVIL MINUTES – GENERAL

Case No. Title

CV 12-09012-BRO (FFMx)

Date November 20, 2015

DUNCAN ROY ET AL. V. COUNTY OF LOS ANGELES ET AL.

on other grounds, 510 U.S. 517 (1994)). Courts generally disfavor motions to strike “because of the limited importance of pleadings in federal practice and because [they are] usually used as a delaying tactic.” RDF Media Ltd. v. Fox Broad. Co., 372 F. Supp. 2d 556, 561 (C.D. Cal. 2005). “Ultimately, whether to grant a motion to strike lies within the sound discretion of the district court.” Cal. Dep’t of Toxic Substances Control v. Alco Pac., Inc., 217 F. Supp. 2d 1028, 1033 (C.D. Cal. 2002).

IV. DISCUSSION
Defendants raise the following arguments in support of their Motion: (1) Plaintiffs are barred from bringing their fourth, fifth, sixth, eighth, and ninth causes of action because Defendants are immune from liability for discretionary acts under California Government Code section 820.2; (2) there is no statutory basis for Plaintiffs’ negligence per se claim; (3) Plaintiffs’ eighth and ninth causes of action fail because the alleged coercive acts do not constitute “coercion” within the meaning of California Civil Code section 52.1; and, (4) paragraphs 60 and 61 of the First Amended Complaint must be stricken because this Court denied Plaintiffs leave to pursue an equal protection claim. (Mot. at 1–2.) The Court separately addresses each of these arguments below.
A. Defendants Failed to Show that Plaintiffs’ State Law Claims Are Unquestionably Barred Based On Defendants’ Discretionary Immunity Under California Government Code Sections 815.2 and 820.2
California Government Code section 815 provides: “Except as otherwise provided by statute . . . [a] public entity is not liable for an injury resulting from an act or omission of an employee of the public entity where the employee is immune from liability.” Cal. Gov’t Code § 815.2(b). Since “a public employee is not liable for an injury resulting from his act or omission where the act or omission was the result of the exercise of the discretion vested in him, whether or not such discretion be abused,” an employee’s successful assertion of the defense of a discretionary act also insulates the public entity employer from liability. Cal. Gov’t Code § 820.2. Thus, Defendants are immune from Plaintiffs’ state law claims if one of Defendants’ employees engaged in a discretionary act or omission that caused the injury for which Plaintiffs now seek to recover.

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UNITED STATES DISTRICT COURT CENTRAL DISTRICT OF CALIFORNIA

LINK:

CIVIL MINUTES – GENERAL

Case No. Title

CV 12-09012-BRO (FFMx)

Date November 20, 2015

DUNCAN ROY ET AL. V. COUNTY OF LOS ANGELES ET AL.

The California Supreme Court has concluded that “almost all acts involve some choice among alternatives, and the statutory immunity [under section 820.2] thus cannot depend upon a literal or semantic parsing of the word ‘discretion.’” Caldwell v. Montoya, 10 Cal. 4th 972, 981 (Cal. 1995). Under these circumstances, a “workable definition” of immune discretionary acts draws the line between “planning” and “operational” functions of government. Johnson v. California, 69 Cal. 2d 782, 793 (Cal. 1968). Immunity is reserved for those “basic policy decisions” which have been expressly “committed to coordinate branches of government,” and as to which judicial interference would thus be “unseemly.” Id. On the other hand, there is no basis for immunizing lower-level, or “ministerial,” decisions that merely implement a basic policy already formulated. Id. at 796. The California Supreme Court cautioned that immunity applies only to deliberate and considered policy decisions, in which a “conscious[] balancing [of] risks and advantages . . . took place.” Id. at 795 n.8.
Defendants contend that all of Plaintiffs’ state law claims are premised on the allegation that the LASD maintains a policy of treating ICE detainers as mandatory holds, as opposed to voluntary requests. (Mot. at 5.) Because the enactment of this policy is “seeped with discretion,” Defendants argue, Plaintiffs’ state law claims are immunized from liability under California Government Code section 820.2. (Id.) According to Defendants, Defendants County of Los Angeles and Baca are derivatively immune as well, pursuant to California Government Code section 815.2. (Id.)
Defendants’ claim for immunity pursuant to section 820.2 is flawed, however, in that there is no information before the Court to suggest that a public employee engaged in any discretionary act which caused Plaintiffs’ injuries. Instead, Defendants generally argue that the implementation of a policy is discretionary, and therefore discretionary immunity should be afforded to Defendants County of Los Angeles and Defendant Baca. For a public entity to be immune from liability under California Government Code section 815.2, however, a public employee of the entity must be immune from liability. It is unclear, based on Defendants’ Motion to Dismiss, which public employee Defendants assert is immune from liability, thereby making Defendants County of Los Angeles and Baca derivatively immune as well. There are no facts before the Court to suggest that one of Defendants’ employees engaged in a discretionary act which caused the injury for which Plaintiffs now seek to recover. Plaintiffs’ First Amended Complaint contains no allegations regarding how the LASD’s policy that allegedly caused Plaintiffs’

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UNITED STATES DISTRICT COURT CENTRAL DISTRICT OF CALIFORNIA

LINK:

CIVIL MINUTES – GENERAL

Case No. Title

CV 12-09012-BRO (FFMx)

Date November 20, 2015

DUNCAN ROY ET AL. V. COUNTY OF LOS ANGELES ET AL.

injuries came into being. Defendants have not shown that enacting a policy to mark immigration holds as mandatory detainers resulted from a considered decision by any of Defendants’ employees. See Johnson, 69 Cal. 2d at 795 n.8 (“[T]o be entitled to immunity the state must make a showing that such a policy decision, consciously balancing risks and advantages, took place.”)

Even if the Court were to assume that Defendant Baca is the employee of the public entity who engaged in the injury-causing act or omission, Defendants have failed to show that Defendant Baca’s decision to implement the alleged LASD policy was “discretionary,” as required by section 820.2. See Cal. Gov’t Code § 820.2; see also Johnson, 69 Cal. 2d at 782. Instead, the allegations presently before the Court suggest that Defendant Baca believed “that he was mandated under federal law to detain any person for whom ICE lodges a hold.” (FAC ¶ 17.) If this allegation is true, it cannot be said that Defendant Baca engaged in a “[conscious] balancing [of] risks and advantages,” such that his decision to enact the LASD’s allegedly illegal policy constitutes a discretionary act under California Government Code section 820.2. See Johnson, 69 Cal. 2d at 795 n.8.

Because Plaintiffs’ allegations do not suggest that a public employee engaged in a
discretionary, injury-causing act or omission, the Court DENIES Defendants’ Motion to Dismiss Plaintiffs’ state law claims on the grounds of discretionary immunity.2

B. Plaintiffs’ Sixth Cause of Action for Negligence Per Se Adequately States A Claim Pursuant to California Government Code Section 815.6

Pursuant to California Government Code section 815(a), “[a] public entity is not liable for an injury, whether such injury arises out of an act or omission of the public entity or a public employee or any other person” except as otherwise provided by statute. Cal. Gov’t Code § 815(a); see also Cardinal v. Buchnoff, No. 06cv72–MMA(BLM),

2 Plaintiffs also assert that “even if the County’s policy decisions to honor an ICE hold as though it were a lawful basis to detain inmates, or to deny bail, was entitled to discretionary immunity, jail staff conduct implementing those same policy decisions is not entitled to such immunity.” (Opp’n at 4.) Having found that the Plaintiffs allege sufficient facts to find that discretionary immunity does not warrant dismissal of Plaintiffs’ state law claims at this stage, however, the Court declines to address whether ministerial actions of employees not party to this action are sufficient to hold the public entity employer of those employees liable for Plaintiffs’ injuries.

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UNITED STATES DISTRICT COURT CENTRAL DISTRICT OF CALIFORNIA

LINK:

CIVIL MINUTES – GENERAL

Case No. Title

CV 12-09012-BRO (FFMx)

Date November 20, 2015

DUNCAN ROY ET AL. V. COUNTY OF LOS ANGELES ET AL.

2010 WL 3609489, at *2 (S.D. Cal. Sept. 14, 2010) (“It is well-settled that there is no common law tort liability for public entities in California; instead, such liability must be based on statute.” (citing Miklosy v. Regents of Univ. of Cal., 44 Cal. 4th 876, 899 (Cal. 2008))). Thus, “in the absence of some constitutional requirement, public entities may be liable only if a statute declares them to be liable.” Becerra v. Cty. of Santa Cruz, 68 Cal. App. 4th 1450, 1457 (Cal. Ct. App. 1998). Defendants assert that “there is no statutory basis for a negligence claim against California public entities.” (Reply at 4.) However, California Government Code 815.6 creates a “rebuttable presumption of negligence.” Chaudhry v. City of L.A., 751 F.3d 1096, 1106–07 (9th Cir. 2014). Accordingly, a public entity may be liable for negligence if the public entity violates a statute and: “(1) the statute which was violated imposes a mandatory duty; (2) the statute was intended to protect against the type of harm suffered; and (3) breach of the statute’s mandatory duty was a proximate cause of the injury suffered.” Braman v. State, 28 Cal. App. 4th 344, 349 (Cal. Ct. App. 1994); see also Flanagan v. Benicia Unified Sch. Dist., No. CIV. S-07-333 LKK, 2008 WL 435355, at *6 (E.D. Cal. Feb. 14, 2008) (“A public entity or its agents can be sued for negligence if it failed to discharge a mandatory duty.”). Thus, to find that Plaintiffs state a claim for negligence, the Court must determine whether Plaintiffs sufficiently state a claim for relief under California Government Code section 815.6.
Plaintiffs’ sixth cause of action for negligence per se properly alleges that Defendants are liable under California Government Code 815.6, (FAC ¶ 172), and Plaintiffs’ fifth cause of action directly alleges violations of the same, (FAC ¶¶ 160–67). Defendants do not argue that Plaintiffs’ sixth cause of action for violations of section 815.6 fails to state a claim for which relief can be granted.
Moreover, considering all of the allegations in Plaintiffs’ First Amended Complaint, including those in Plaintiffs’ fifth cause of action, the Court finds that Plaintiffs satisfactorily state a claim pursuant to California Government Code section 815.6. Plaintiffs name specific statutes which they allege “impose[] a mandatory duty” on LASD to release inmates on bail and release detainees after a judge has ordered them released. (See, e.g., FAC ¶¶ 125 (citing Cal. Penal Code § 1269b(g)), 156 (citing Cal. Penal Code § 1384), 161 (citing Cal. Penal Code. §§ 1268, 1269b, 1295(a)).) Plaintiffs further allege that Defendants refused to allow Plaintiffs to post bail for which they were eligible and detained Plaintiffs after their release date solely on the basis of immigration

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#:1165

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UNITED STATES DISTRICT COURT

CENTRAL DISTRICT OF CALIFORNIA

CIVIL MINUTES – GENERAL

Case No. Title

CV 12-09012-BRO (FFMx)

Date November 20, 2015

DUNCAN ROY ET AL. V. COUNTY OF LOS ANGELES ET AL.

holds. (FAC ¶¶ 163, 166.) Thus, Plaintiffs aver, Defendants “fail[ed] to discharge their mandatory duties” and caused Plaintiffs “injuries those duties were designed to prevent.” (FAC ¶¶ 162, 163, 166.) These allegations enable the Court to plausibly infer that Defendants violated a mandatory duty designed to protect against the kind of injury Plaintiffs suffered. As a result, Plaintiffs adequately pleaded the three elements of a California Government Code section 815.6 claim. See Chaudhry, 751 F.3d at 1106–07.
The Court notes, however, that Plaintiffs’ negligence and section 815.6 claims rest on identical theories of liability (violations of section 815.6) for the same underlying conduct (over-detaining inmates solely on the basis of immigration holds). (See FAC ¶¶ 160–72.) Both Plaintiffs’ fifth cause of action for violations of section 815.6 and Plaintiffs’ sixth cause of action for negligence per se rely on the identical allegations of duty, breach, causation, and damages. Therefore, the claims are duplicative and it is unnecessary for Plaintiffs to maintain both causes of action. See Swartz v. KPMG LLP, 476 F.3d 756, 766 (9th Cir. 2007) (affirming dismissal of cause of action as duplicative). Because Plaintiffs’ fifth and sixth causes of action are duplicative, the Court GRANTS Defendants’ Motion to Dismiss Plaintiffs’ fifth cause of action for negligence. Plaintiffs’ fifth cause of action is DISMISSED without leave to amend.
C. Plaintiffs Adequately Plead An Actionable Coercive Act Separate From the Coercion Inherent in Their Over-Detention Claim Under California Civil Code Section 52.1
Plaintiffs’ eighth and ninth causes of action allege violations of the right to timely release and right to post bail pursuant to California Civil Code section 52.1. (FAC ¶¶ 193–210.) California Civil Code section 52.1 creates a private right of action for individuals whose constitutional rights were violated by another, whether or not acting under the color of law, “by threat, intimidation, or coercion.” Cal. Civ. Code. § 52.1. In this Court’s previous Order granting in part and denying in part Plaintiffs’ Motion for Leave to Amend their Complaint, the Court found that Plaintiffs’ proposed amendments were not futile because Plaintiffs sufficiently pleaded that Defendants acted coercively by knowingly interfering with Plaintiffs’ constitutional rights. (Dkt. No. 107.) Accordingly, Plaintiffs’ First Amended Complaint maintains that Defendants engaged in wrongful, coercive conduct independent from the detention by knowingly marking ICE holds as mandatory in their record-keeping system, which “falsely communicated to

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UNITED STATES DISTRICT COURT

CENTRAL DISTRICT OF CALIFORNIA

CIVIL MINUTES – GENERAL

Case No. Title

CV 12-09012-BRO (FFMx)

Date November 20, 2015

DUNCAN ROY ET AL. V. COUNTY OF LOS ANGELES ET AL.

employees and agents that ICE holds authorized and required class members to be detained.” (FAC ¶¶ 197, 204.) Yet Defendants contest that Plaintiffs adequately pleaded a section 52.1 claim on three grounds.
First, Defendants claim that record-keeping is not “coercive” merely because it falsely communicated that ICE holds are mandatory. (Mot. at 9–11.) The required threat, intimidation, or coercion under section 52.1 cannot be the coercion inherent to the underlying violation. Shoyoye v. Cty. of L.A., 203 Cal. App. 4th 947, 959 (Cal. Ct. App.
2012) (“[W]here coercion is inherent in the constitutional violation alleged . . . the
statutory requirements of ‘threats, intimidation, or coercion’ is not met. The statute requires a showing of coercion independent from the coercion inherent in the wrongful detention itself.”). Therefore, Plaintiffs must allege that Defendants intentionally detained Plaintiffs by use of threats, intimidation, or coercion independent of the coercion inherent in over-detention. Id.
As discussed, Plaintiffs allege that Defendants “falsely communicated to employees and agents that ICE holds authorized and required class members to be detained.” (FAC ¶¶ 197, 204.) “There is limited [section 52.1] precedent defining what constitutes ‘coercion’ independent from that which is inherent in a wrongful arrest, but Shoyoye v. County of Los Angeles indicates that such conduct must be ‘intentionally coercive and wrongful, i.e., a knowing and blameworthy interference with the plaintiffs’ constitutional rights.” Gant v. Cty. of L.A., 772 F.3d 608, 624 (9th Cir. 2014). In Venegas v. County of Los Angeles, 32 Cal. 4th 820, 843 (Cal. 2004), the Supreme Court of California held that plaintiffs properly alleged misconduct under section 52.1. The court in Venegas based its holding on the following facts: an officer stopped the plaintiffs’ vehicle and arrested and detained plaintiffs based on law enforcement’s erroneous conclusion that the stopped vehicle was stolen. Id. at 827–28. The officer released one of the plaintiffs after two hours, and eventually directed that the second plaintiff be released from custody, but that plaintiff was not released for another two days. Id. at 828.
The California Court of Appeal in Shoyoye discusses Venegas, and explains that the Venegas plaintiffs offered sufficient evidence suggesting the probable cause initially justifying the stop eroded over time, “such that the officers’ conduct became intentionally coercive and wrongful, i.e., a knowing and blameworthy interference with the plaintiffs’

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#:1167

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UNITED STATES DISTRICT COURT

CENTRAL DISTRICT OF CALIFORNIA

CIVIL MINUTES – GENERAL

Case No. Title

CV 12-09012-BRO (FFMx)

Date November 20, 2015

DUNCAN ROY ET AL. V. COUNTY OF LOS ANGELES ET AL.

constitutional rights.” Shoyoye, 203 Cal. App. 4th at 961. Unlike the officers in Venegas whose conduct “became” intentionally coercive and wrongful, Plaintiffs assert that Defendants knowingly interfered with Plaintiffs’ rights to timely release and release on bail as soon as Defendants recorded ICE detainers. In Shoyoye, the court found “no evidence that [plaintiff] was treated differently than other inmates who were lawfully incarcerated, or that any conduct directed at him was for the purpose of interfering with his constitutional rights.” 203 Cal. App. 4th at 961. The Court has no evidence before it at the pleadings stage—only Plaintiffs’ allegations that Defendants acted knowingly. The Court finds that Plaintiffs have sufficiently alleged coercive conduct independent of the over-detention to plead a cause of action under section 52.1. The Court finds that Plaintiffs have sufficiently alleged coercive conduct independent of the over-detention to plead a cause of action under section 52.1.
Second, Defendants argue that the allegedly coercive record-keeping practices fail to state a claim under California Civil Code section 52.1 because they were “not directed at any Plaintiff or any other County Jail inmates,” but “[i]nstead, . . . involve[d] the communication of certain information to LASD employees.” (Mot. at 8.) Defendants’ argument is inapposite. Defendants’ Motion lacks any legal authority in support of this argument, and the cases cited by Defendants in their Reply do not support Defendants’ proposition. (See Mot. at 8; Reply at 5.)
Nor does King v. California, filed by Defendants as a supplement to their Motion, change the Court’s conclusion here. In King, after a full trial, the court found that plaintiff had no existing constitutional right to resist, and therefore “the [officer’s] threat did not itself interfere with [plaintiff’s] exercise or enjoyment of his constitutional rights.” 2015 Cal. App. LEXIS 1027, at *56. Although Defendants claim King is “relevant to Defendant’s pending motion to dismiss since Plaintiffs’ Civil Code [section] 52.1 claims are not based on any allegation that they were directly threatened, intimidated or coerced from doing something that they were entitled to do under the law,” (Dkt. No. 123 at 3), the Court disagrees. As discussed above, at this stage, Plaintiffs sufficiently allege that Defendants knowingly interfered with Plaintiffs’ existing constitutional rights and that the record-keeping practices were “carried out in order to effect a knowing interference.” Shoyoye, 203 Cal. App. 4th at 961.

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#:1168

LINK:

UNITED STATES DISTRICT COURT

CENTRAL DISTRICT OF CALIFORNIA

CIVIL MINUTES – GENERAL

Case No. Title

CV 12-09012-BRO (FFMx)

Date November 20, 2015

DUNCAN ROY ET AL. V. COUNTY OF LOS ANGELES ET AL.

Finally, Defendants seek to dismiss Plaintiffs’ section 52.1 claim on the grounds that it “ventures far beyond the original intent of the statute” which was enacted “as an additional legislative effort to deter violence.” (Mot. at 9.) This argument is unavailing, however, because the Ninth Circuit explicitly held that “section 52.1 does not require violence or threat of violence.” Moreno v. Town of Los Gatos, 267 F. App’x 665, 666 (9th Cir. 2008); see also Venegas v. Cty. of L.A., 32 Cal. 4th 820, 843 (Cal. 2004) (holding that a plaintiff had stated a 52.1 claim despite the fact there was no allegation of violence).
Because Plaintiffs adequately pleaded “threat[s], intimidation, or coercion” independent from the over-detention, the Court DENIES Defendants’ Motion to Dismiss Plaintiffs’ eighth and ninth causes of action.
D. Paragraphs 60 and 61 of the First Amended Complaint are Barred by This Court’s Order Denying Plaintiffs Leave to Add Allegations Supporting an Equal Protection Claim
On August 24, 2015, Plaintiffs filed a motion seeking to modify the scheduling order and file a first amended complaint. (Dkt. No. 96.) Plaintiffs’ proposed amendments included the addition of a claim for denial of equal protection. (Dkt. No. 91.) In support of Plaintiffs’ equal protection claim, Plaintiffs sought to add allegedly newly-discovered facts, including: (1) the fact that from at least 2010 until at least May 2014, inmates with ICE holds were denied participation in LASD’s community-based alternatives to custody programs, available to other inmates; (2) the LASD denied inmates with ICE holds early release due to overcrowding, which LASD afforded to other inmates; and, (3) the LASD processed persons with ICE detainers differently from inmates with criminal warrants and subjected them to different release procedures. (Dkt. No. 107 at 13.)
Because Plaintiffs did not seek to amend their complaint until after the deadline imposed by the scheduling order, however, Plaintiffs were entitled to amend their complaint only if they acted diligently in doing so. See Johnson v. Mammoth Recreations, 975 F.2d 604, 607 (9th Cir. 1992.) In this Court’s September 17, 2015 Order granting in part and denying in part Plaintiffs’ Motion for Leave to Amend, the Court found that Plaintiffs did not act diligently with respect to the equal protection claim

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UNITED STATES DISTRICT COURT

CENTRAL DISTRICT OF CALIFORNIA

CIVIL MINUTES – GENERAL

Case No. Title

CV 12-09012-BRO (FFMx)

Date November 20, 2015

DUNCAN ROY ET AL. V. COUNTY OF LOS ANGELES ET AL.

because the allegedly “new” facts proposed as additional allegations were likely available to Plaintiffs at the time they filed their first complaint three years earlier. (Dkt. No. 107 at 14.) Accordingly, the Court denied Plaintiffs’ Motion for Leave to Amend to add the allegedly newly-discovered information. (Id. at 15.)
Nonetheless, Plaintiffs’ First Amended Complaint contains these additional allegations. (FAC ¶¶ 60–61.) Plaintiffs aver that they were entitled to add these allegations, despite the Court’s Order to the contrary. Plaintiffs claim the allegations are relevant to the section 52.1 claim3 and Plaintiffs believe equal protection claims were already pleaded in the original complaint. (Opp’n at 10–16.) This argument, however, is unavailing. The question before the Court in ruling on Plaintiffs’ Motion for Leave to Amend was limited to whether Plaintiffs had shown good cause to modify the scheduling order by acting diligently in seeking modification. (See Dkt. No. 107.) Accordingly, the Court did not determine that Plaintiffs failed to plead an equal protection claim in their original complaint. Indeed, such a conclusion would be inapposite in determining whether Plaintiffs were diligent in seeking leave to amend. Plaintiffs are free to argue that they satisfactorily pleaded equal protection claims through the allegations contained in the original complaint. Plaintiffs cannot, however, ignore this Court’s explicit order denying leave to add new facts supporting an equal protection claim when Plaintiffs were not diligent in seeking to amend this Court’s scheduling order.
Accordingly, the Court GRANTS Defendants’ Motion to Strike paragraphs 60 and 61 of Plaintiffs’ First Amended Complaint.

3 Plaintiffs assert that allegations that inmates with ICE holds were treated differently from detainees without ICE holds support Plaintiffs’ section 52.1 claims because these allegations allege coercion not ordinarily associated with an arrest or incarceration. (Opp’n at 12.) While these allegations are independent of the coercion inherent in over-detention, they do not show that Defendants coercively violated Plaintiffs’ right to timely release and right to post bail. The allegations that inmates with ICE holds were denied participation in LASD’s community-based alternatives to custody programs, denied early release due to overcrowding, and subject to different release procedures than inmates without immigration holds do not show coercion related to Defendants’ alleged violations of Plaintiffs’ constitutional rights. (See FAC ¶¶ 60–61.)

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UNITED STATES DISTRICT COURT

CENTRAL DISTRICT OF CALIFORNIA

CIVIL MINUTES – GENERAL

Case No. Title

CV 12-09012-BRO (FFMx)

Date November 20, 2015

DUNCAN ROY ET AL. V. COUNTY OF LOS ANGELES ET AL.

V. CONCLUSION

For the foregoing reasons, the Court GRANTS in part and DENIES in part Defendants’ Motion to Dismiss and GRANTS Defendants’ Motion to Strike paragraphs 60 and 61 of Plaintiffs’ First Amended Complaint. Plaintiffs must file a Second Amended Complaint, pursuant to this Court’s Order, no later than 4 p.m. on Monday, December 7, 2015. The hearing set for November 23, 2015 is hereby VACATED.

IT IS SO ORDERED.

:

Initials of Preparer

rf

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 Case 2:12-cv-09012-BRO-FFM Document 125 Filed 12/07/15 Page 1 of 52 Page ID #:1171

1 PETER J. ELIASBERG, SBN 189110 peliasberg@aclu-sc.org

2 AHILAN ARULANANTHAM, SBN 237841

aarulanantham@aclu-sc.org

3 PETER BIBRING, SBN 223981

pbibring@aclu-sc.org 4 JENNIFER PASQUARELLA, SBN 263241

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14 Attorneys for Plaintiffs (continued on next page)

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UNITED STATES DISTRICT COURT

CENTRAL DISTRICT OF CALIFORNIA 17

18 DUNCAN ROY; ALAIN MARTINEZ- CASE NO. CV-12-09012 BRO 19 PEREZ, on behalf of himself and others (FFMX)
similarly situated; ANNIKA ALLIKSOO, [Hon. Beverly Reid O’Connell] 20 on behalf of herself and others similarly

21 situated; CLEMENTE DE LA CERDA, on behalf of himself and others similarly
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SECOND AMENDED COMPLAINT FOR INJUNCTIVE

23

Plaintiffs,

24

vs.

AND DECLARATORY RELIEF AND DAMAGES

25 COUNTY OF LOS ANGELES; LEROY

26 D. BACA, Sheriff of Los Angeles County, in his official capacity,
27

28

Defendants.

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9 cwang@aclu.org
10 AMERICAN CIVIL LIBERTIES UNION FOUNDATION IMMIGRANTS’ RIGHTS PROJECT
11 39 Drumm Street
12 San Francisco, California 94111 Telephone: (415) 343-0775
13
14 CHRIS NEWMAN, SBN 255616 newman@ndlon.org
15 JESSICA KARP, SBN 277347
16 jkarp@ndlon.org NATIONAL DAY LABOR ORGANIZING NETWORK
17 675 S. Park View Street, Suite B
18 Los Angeles, California 90057 Telephone: (213) 380-2785
19 Facsimile: (213) 380-2787

20

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Case 2:12-cv-09012-BRO-FFM Document 125 Filed 12/07/15 Page 3 of 52 Page ID #:1173

1 I. INTRODUCTION

2

A. The Challenged Practices

3

1. This case challenges the legality of two practices of the Los Angeles

4 County Sheriff’s Department: (1) denying bail to thousands of people who want

5 to post bail and have already obtained a court order setting bail purely on the

6 ground that the federal government has placed an “immigration hold” on them;1

7 and (2) denying them release from Los Angeles County jail for 48 hours or more

8 on the basis of the immigration hold, even though all charges against them have

9 been dismissed, they have been acquitted of the charge for which they were being

10 held, they were ordered released, or they have served their sentence. These

11 practices violate state law, as well as the Fourth and Fourteenth Amendments to

12 the U.S. Constitution, and their state law analogues (Cal. Constitution, Articles 1,

13 7, and 13). This Court has jurisdiction under 28 U.S.C. §§ 1331, 1343, 1367, and

14 2201-02, and Article III of the U.S. Constitution. Venue is proper under 28

15 U.S.C. § 1391(b)(2).

16

2. “In our society liberty is the norm, and detention prior to trial or

17 without trial is the carefully limited exception.” U.S. v. Salerno, 481 U.S. 739,

18 755 (1987). Yet the Los Angeles County Sheriff’s Department and Sheriff Leroy

19 Baca have turned these norms upside down by detaining tens of thousands of

20 individuals subject to so-called “immigration holds” (also known as “immigration

21 detainers” or “ICE holds”), beyond the time that state law mandates that they be

22 released.

23 1 Prior to filing this complaint, the LASD responded to a letter from Plaintiffs’

24 counsel and stated that it was not their intention to deny inmates with ICE holds

25

the opportunity to post bail on their state law charges. LASD further agreed to 1) promulgate a policy that makes clear that the existence of an ICE hold does not

26 provide a basis to prevent the posting of bail on any pending criminal charge, and

27

2) notify LASD employees of this policy, and 3) review its database systems to determine whether they could modify the “no bail” notation it places on the files of

28 persons with immigration holds.

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1

3. Although these inmates are presumed to be innocent and are eligible

2 for bail, LASD has, until this week, forced them to languish in jail while they

3 await trial – at the cost of their jobs, their reputations, and their family and

4 community ties. This prolonged pretrial detention also coerces many to take plea

5 deals they would not otherwise accept because it is the only way to secure their

6 rapid release from jail.

7

4. In addition, LASD has unlawfully incarcerated, and continues to

8 unlawfully incarcerate, many thousands more individuals for days beyond their

9 release date after any state law basis for their custody has expired, because they

10 have been ordered released on their own recognizance, they have served their

11 sentences, their charges have been dropped, or they have been found not guilty

12 solely on the purported authority of the immigration holds. LASD subjected

13 19,725 individuals to such unlawful continued detention in 2011 alone.

14

B. These Two Practices are not only Illegal, but are also Bad Policy

15

in Light of the Capacity Constraints of the County Jails

16

5. On any given day, there are approximately 2,100 inmates in the Los

17 Angeles County Jails who have immigration holds (or 14% of the total jail

18 population). See James F. Austin, et al., “Evaluation of the Current and Future

19 Los Angeles County Jail Population,” at page 21, Table 10, available at

20 http://www.aclu-sc.org/issues/prisoners-rights/jails-project/austin-report/

21 (hereafter “Austin”).

22

6. Approximately 43% of the inmates who will be released to ICE are

23 classified as “low custody,” strongly suggesting that they are charged with minor

24 offenses. Id. Accordingly, many of them will have low bail. On information and

25 belief, many of them would have posted bail given the low bail amounts and been

26 released to ICE, or to the community if ICE is no longer interested in them, much

27 sooner if LASD had not denied them the opportunity to post bail.

28

7. Keeping an inmate in the County jail costs $100 to $150 per night.

2

Case 2:12-cv-09012-BRO-FFM Document 125 Filed 12/07/15 Page 5 of 52 Page ID #:1175

1 The County is currently considering various measures—including expanding early

2 release options into programmed community beds, and even the drastic possibility

3 of shipping inmates to Kern County—to respond to the influx of more than 8,000

4 inmates into the L.A. County jails as a result of realignment.

5

8. Even as pressures on the jail population mount, Sheriff Baca has

6 expressed his strong desire to stop housing inmates in Men’s Central Jail because

7 it is an archaic and dangerous facility. ACLU Study: Men’s Central Jail Can Be

8 Shuttered By 2013, CBS Local News, April 10, 2012, http://losangeles.

9 cbslocal.com/2012/04/10/aclu-study-mens-central-jail-can-be-shuttered-by-2013/.

10 The past practice of keeping inmates in jail who want to post bail, and the ongoing

11 practice of holding them for 48 hours or more after they are otherwise entitled to

12 release, is inconsistent with the County’s efforts to manage its jail population and

13 close Men’s Central Jail, and is a waste of taxpayer money.

14 II. PARTIES

15

9. Plaintiff Duncan Roy is a 52-year-old British citizen. Mr. Roy is an

16 acclaimed film director who owns a home in Malibu, California. He suffers from

17 prostate and colon cancer and requires regular monitoring to prevent recurrent

18 cancer. From November 15, 2011 to February 8, 2012, Defendants unlawfully

19 detained him for 89 days in the Lost Hills station and then in the “gay ward” of

20 Men’s Central Jail by unlawfully refusing to allow him to post the bail set by the

21 court in his criminal case.

22

10. Plaintiff Alain Martinez-Perez is a 37-year-old Mexican citizen. Mr.

23 Martinez-Perez has a one and a half-year-old U.S. citizen son. He lives in

24 Claremont, California and works as a dog trainer. From December 14 to

25 December 20, 2011, Defendants unlawfully detained him for six days in City of

26 Industry station first by refusing to allow him to post bail under the judicially-

27 determined County bail schedule based on his arresting charge, and, subsequently,

28 by continuing to detain him solely on the basis of the immigration hold after the

3

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1 district attorney declined to file criminal charges against him. Plaintiff Martinez-

2 Perez seeks damages on behalf of himself and all others similarly situated for

3 LASD’s practice of refusing to honor bail (Damages Classes One and Two) and

4 for LASD’s practice of prolonging detention beyond the time that state law

5 mandates release (Damages Classes Three and Four). Plaintiff Martinez-Perez

6 also seeks damages on behalf of himself and all others similarly situated for

7 LASD’s practice of prolonging detention for more than 48 hours beyond the time

8 that state law mandates their release (Damages Classes Five and Six).

9

11. Plaintiff Annika Alliksoo is a 34-year-old Estonian citizen. Ms.

10 Alliksoo is married to a U.S. citizen and lives near Palmdale, California. From

11 July 12 to July 30, 2012, Defendants unlawfully detained her for 18 days in the

12 Palmdale station and then in the Lynwood Jail. Defendants first refused to allow

13 her to post bail under the judicially-determined County bail schedule and then

14 under court-ordered bail. Then, after a superior court judge ordered her released

15 on her own recognizance, Defendants continued to detain her for an additional

16 three days solely on the immigration hold. Plaintiff Alliksoo seeks damages on

17 behalf of herself and all others similarly situated for LASD’s practice of refusing

18 to honor bail (Damages Classes One and Two) and for LASD’s practice of

19 prolonging detention beyond the time that state law mandates their release

20 (Damages Classes Three and Four). Plaintiff Alliksoo also seeks damages on

21 behalf of herself and all others similarly situated for LASD’s practice of

22 prolonging detention for more than 48 hours beyond the time that state law

23 mandates their release (Damages Classes Five and Six).

24

12. Plaintiff Clemente De La Cerda is a 36-year-old Mexican citizen and

25 lawful permanent resident of the United States. He is also possibly a United

26 States citizen based on acquisition at birth. He has lived in the United States since

27 he was four years old. Mr. De La Cerda lives in Brea, California. He is currently

28 in LASD custody and an immigration hold is lodged against him. Plaintiff De La

4

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1 Cerda seeks injunctive and declaratory relief on behalf of himself and all

2 individuals currently in the custody of and who will in the future be in the custody

3 of the Defendants on the basis of the immigration hold (Equitable Relief Class).

4 On behalf of this class, he seeks to bar Defendants from prolonging the detention

5 of him and other members of the class beyond the time that state law mandates

6 release solely on the basis of an immigration hold not supported by a probable

7 cause determination.

8

13. Defendant Leroy Baca is the Sheriff of Los Angeles County. As

9 Sheriff, he is the chief executive officer of LASD. He is responsible for the

10 management and control of all Los Angeles County Jails. He is responsible for

11 the custody of all inmates housed in the County Jails and jailed at LASD field

12 stations. Plaintiffs sue Sheriff Baca in his official capacity only.

13

14. Defendant County of Los Angeles is a county of the State of

14 California duly organized under the laws of the State of California. The Los

15 Angeles County Sheriff’s Department (“LASD”) is an agency of Defendant

16 County and the largest sheriff’s department in the nation. It has a range of law

17 enforcement responsibilities, including the policing of various unincorporated

18 areas of the County and operating all of the County’s jails and field stations.

19 Sheriff Baca directs LASD’s work.

20 III. STATEMENT OF FACTS

21

15. LASD runs the largest jail system in the nation, with an average daily

22 population of approximately 15,000 inmates. The great majority of those housed

23 in the jail are pretrial detainees. On average, 2,100 inmates per day (or 14 percent

24 of the daily jail population) have immigration holds lodged against them. These

25 inmates spend on average 20.6 days longer in Los Angeles County jails than

26 inmates without immigration holds, despite almost half of them being classified as

27 low custody, meaning they are likely being held pre-trial on low level non-violent

28 offenses and thus are, on average, better candidates for pre-trial release or other

5

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1 diversion programs than the average inmate in the jails who does not have an

2 immigration hold.

3

16. In recent years, LASD has alone detained more individuals on

4 immigration holds for the purposes of assisting the federal government with its

5 deportation efforts than any other county in the nation, and indeed more than any

6 other state except California and Texas. It has done so absent the requisite legal

7 authority to do so in outright and reckless disregard for the detainees’

8 constitutional rights and their most basic right to liberty. And it has done so

9 despite the fact that ICE could simply obtain custody of any person subject to an

10 immigration hold at the point at which they would normally be released from

11 LASD custody, without requiring LASD to detain them unconstitutionally for an

12 additional period of time.

13

17. Although immigration holds are voluntary requests, as explained

14 below, as a matter of practice and policy, LASD detains every person who

15 receives an immigration hold beyond their release dates solely on the basis of the

16 hold. Indeed, in August 2012, Sheriff Baca told members of the media that he

17 was mandated under federal law to detain any person for whom ICE lodges a

18 hold, despite the fact that federal law makes clear that immigration holds are not

19 mandatory but voluntary requests.

20

A. Immigration Detainers, also Known as ICE Holds

21

18. In August 2009, LASD, together with the federal immigration agency,

22 Immigration and Customs Enforcement (“ICE”) of the Department of Homeland

23 Security (“DHS”), activated the “Secure Communities” (or “S-Comm”) program

24 in Los Angeles County jails and stations. The program links the criminal justice

25 and immigration systems through the sharing of fingerprints. Under S-Comm,

26 LASD shares the fingerprints and booking information with ICE of every arrestee

27 during the booking process. An agent in ICE’s Law Enforcement Support Center

28 (“LESC”) checks the fingerprints against immigration and FBI databases to make

6

Case 2:12-cv-09012-BRO-FFM Document 125 Filed 12/07/15 Page 9 of 52 Page ID #:1179

1 an immigration status determination and sends a notification to ICE’s

2 Enforcement and Removal Operations unit (“ERO”).

3

19. If the reviewing agent at ERO determines that ICE would like to take

4 some action with respect to the person detained, the agent sends LASD or the

5 local law enforcement agency a Form I-247, known as an “immigration detainer”

6 or an “ICE hold.”

7

20. An immigration hold is an administrative notice by ICE to a local law

8 enforcement agency.

9

21. Pursuant to 8 C.F.R. § 287.7(a), the purpose of an immigration hold is

10 to “advise another law enforcement agency that [DHS] seeks custody of an alien

11 presently in the custody of that agency, for the purpose of arresting and removing

12 the alien. The detainer is a request that such agency advise [DHS], prior to release

13 of the alien, in order for [DHS] to arrange to assume custody, in situations when

14 gaining immediate physical custody is either impracticable or impossible.”

15

22. The detainer form also states that ICE is requesting that the agency

16 hold the alien for a period of no more than 48 hours excluding Saturdays,

17 Sundays, and holidays “beyond the time when the subject would have otherwise

18 been released from your custody.” 8 C.F.R. § 287.7(d) (emphasis added).

19

23. Immigration holds are issued for various reasons. The face of the

20 Form I-247 lists four possible reasons for ICE to issue the hold, including that ICE

21 has “[i]nitiated an investigation to determine whether this person is subject to

22 removal from the United States;” “[i]nitiated removal proceedings and served a

23 Notice to Appear or other charging document,” with the charging document

24 attached; “[s]erved a warrant of arrest for removal proceedings,” with the warrant

25 attached; or “[o]btained an order of deportation or removal from the United States

26 for this person.” The ICE agent may check a box next to one of these four reasons

27 to indicate the reason he or she is issuing the hold.

28

7

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1

24. Upon information and belief, the box marked “initiated an

2 investigation to determine whether this person is subject to removal from the

3 United States” is checked when the agent wishes to begin an investigation to

4 determine whether the person is subject to removal. This decision is made by the

5 individual ICE agent reviewing the person’s fingerprints and ICE records. Upon

6 information and belief, ICE checks the box on the I-247 form for “[i]nitiated an

7 investigation to determine whether this person is subject to removal from the

8 United States” on approximately 78% of the holds it issues to the LASD.

9

25. In practice, ICE agents routinely issue immigration holds for the

10 “[i]nitiat[ion of] an investigation” without probable cause to believe a person is

11 removable from the United States. An I-247 form with the investigation box

12 checked does not indicate that there has been any prior determination by ICE (let

13 alone a neutral decisionmaker) as to the person’s immigration status, and it does

14 not indicate that there is any warrant or court order as to the person’s immigration

15 status.

16

26. Upon information and belief, ICE does not require that its agents have

17 probable cause to believe a person is removable from the United States before

18 issuing a Notice to Appear or arrest warrants, nor does ICE require that agents

19 have probable cause to believe a person is removable from the United States

20 before issuing an I-247 detainer form with the boxes checked for arrest warrant or

21 a Notice to Appear or other charging document.

22

27. Due to ICE’s failure to apply any evidentiary standards and common

23 errors in immigration databases, ICE often places immigration holds in error on

24 persons who are not subject to removal, such as United States citizens and lawful

25 permanent residents who are not subject to removal. For example, in November

26 2011, ICE placed a hold on Romy Campos, a 19-year-old U.S.-born woman who

27 is a dual citizen with the United States and Spain, simply because years prior

28 when traveling alone as a minor she had entered the country on her Spanish

8

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1 passport and in spite of other evidence that demonstrated her U.S. citizenship.

2 LASD detained Ms. Campos for two days on the immigration hold beyond her

3 release date despite her repeated protestations that she was an American citizen.

4

28. ICE provides no meaningful way for a detainee to contest the

5 immigration hold lodged against him or her. Rather, a detainee must wait to be

6 finally transferred to immigration custody before he or she will have an

7 opportunity to demonstrate that he or she is not in fact removable and/or that he or

8 she should be released.

9

29. Pursuant to 8 U.S.C. § 1357(d), Congress authorized DHS to issue

10 immigration holds only to non-citizens in state or local custody only in those

11 circumstances where the offenses related to controlled substance violations.

12 However, ICE places holds on anyone without regard to whether or not they have

13 been charged with a controlled substance violation.

14

30. The implementing regulation, 8 C.F.R. § 287.7(d), purports to

15 authorize DHS to issue immigration holds for any noncitizen regardless of the

16 underlying criminal offense.

17

31. The regulation also purports to require law enforcement agencies to

18 comply with the request, stating “[u]pon a determination by the Department to

19 issue a hold for an alien not otherwise detained by a criminal justice agency, such

20 agency shall maintain custody of the alien for a period not to exceed 48 hours,

21 excluding Saturdays, Sundays, and holidays in order to permit assumption of

22 custody by the Department.” The Form I-247 immigration detainer form states:

23 “IT IS REQUESTED THAT YOU: Maintain custody of the subject for a period

24 NOT TO EXCEED 48 HOURS, excluding Saturdays, Sundays and holidays,

25

26

27

28

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Case 2:12-cv-09012-BRO-FFM Document 125 Filed 12/07/15 Page 12 of 52 Page ID #:1182

1 beyond the time when the subject would have otherwise been released from your 2 custody to allow DHS to take custody of the subject.”2

3

32. The LASD knew or should have known that ICE holds are voluntary

4 requests. ICE admits, and the law is and has been clear, that ICE holds are and

5 always have been voluntary requests, and neither legally require, nor purport to

6 legally require, that a person be held against their will on that basis. The principle

7 “Ignorantia juris non excusat” applies if anything with greater force to LASD

8 than to private citizens, and whether LASD properly understood or appreciated the

9 lawful reach of an ICE hold is not a justification for violating Plaintiffs’ rights.

10

33. In 2010, ICE clarified in communications with members of Congress

11 and Santa Clara County that ICE holds are voluntary requests.3

12

34. From at least 2005 until May 2015, ICE had an office in the Inmate

13 Reception Center area of the LASD jail system, where approximately one dozen

14 ICE agents were stationed. These agents worked alongside LASD staff on a daily

15 basis. LASD staff, from the senior leadership down to the deputies and custody

16 assistants, communicated on a regular basis with ICE. Upon information and

17 belief, any communication between LASD and ICE regarding whether or not

18 immigration holds were mandatory or voluntary requests made clear that they were

19 only voluntary.

20

35. In December 2012, California Attorney General Kamala D. Harris

21 issued an Information Bulletin to state and local law enforcement agencies which

22

23

2 See http://www.ice.gov/doclib/secure-communities/pdf/immigration-detainerform.pdf.

24 3 See Letter from David Venturella, Assistant Director, Secure Communities to

25

Miguel Marquez, Santa Clara County Counsel at 3, Aug. 16, 2010, available at http://media.sjbeez.org/files/2011/10/4-ICE-response-to-SCC.pdf ("ICE views an

26 immigration detainer as a request . . . ."); ICE Memorandum on Secure

27

Communities Briefing to Congressional Hispanic Caucus at 3, Oct. 28, 2010, available at http://bit.ly/sHibJ7 (“Local LEAs are not mandated to honor a

28 detainer, and in some jurisdictions they do not.”).

10

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1 stated that “immigration detainers are not compulsory. Instead, they are merely

2 requests enforcement at the discretion of the agency holding the individual

3 arrestee.”

4

36. In January 2014, California legislation known as the TRUST Act, or

5 AB4, went into effect, which stated in its preamble that “[e]xisting federal law

6 provides that the detainer is a request that the agency advise the department, prior

7 to release of the alien, in order for the department to arrange to assume custody in

8 situations when gaining immediate physical custody is either impracticable or

9 impossible.”

10

37. On April 7, 2014, LASD received a memorandum from the attorney

11 for the California Sheriff’s Association stating that immigration detainers were

12 optional requests.

13

38. The LASD knew or should have known that immigration detainers

14 were not lawful detention requests.

15

39. Unlike criminal detainers or holds, an immigration hold is not

16 accompanied by a judicial warrant or judicial determination of probable cause.

17 Rather, it is solely an administrative request, signed by a single ICE officer.

18 Although it is called a detainer, it is not accompanied by the same procedural

19 protections as criminal detainers.

20

40. LASD’s legal authority to detain persons beyond the time when they

21 became entitled to release on the charges on which LASD was holding them

22 extends only to hold those for whom there was probable cause to believe the

23 detainee had committed a crime. While a warrant is facially a document based on

24 probable cause to believe the detainee had committed a crime, an ICE detainer on

25 its face does not establish or purport to establish such probable cause.

26

41. In January 2014, the TRUST Act (AB4) went into effect, which stated

27 “[u]nlike criminal detainers, which are supported by a warrant and require

28 probable cause, there is no requirement for a warrant and no established proof,

11

Case 2:12-cv-09012-BRO-FFM Document 125 Filed 12/07/15 Page 14 of 52 Page ID #:1184

1 such as reasonable suspicion or probable cause, for issuing an ICE detainer

2 request. Immigration detainers have erroneously been placed on United States

3 citizens, as well as immigrants who are not deportable.”

4

42. Because immigration detainers have never been accompanied by a

5 judicial warrant, any detention by LASD on an immigration detainer constituted a

6 warrantless arrest. LASD made such warrantless arrests despite not bringing

7 inmates held on the sole authority of an immigration detainer before a judicial

8 officer within 48 hours for a probable cause determination, as is required by the

9 Fourth Amendment. In a document circulated among LASD staff in February 2014

10 titled “ICE study guide” about the ICE Desk in the LASD Inmate Reception

11 Center, the LASD changed its policy stating “[w]e will not detain a person on the

12 basis of an immigration hold for longer than 48hrs, including weekends and

13 holidays” and explaining that “[a]lthough DHS generally requests a detention of

14 48hrs excluding weekends and holidays, and detention longer than 48hours

15 requires a probable cause hearing before a magistrate judge. DHS doesn’t provide

16 such hearings, therefore the local law enforcement agency will limit detention on

17 the basis of an ICE hold to 48hrs, including weekends and holidays.”

18

43. While LASD treated immigration detainers as mandatory holds, it did

19 not subject them to basic verification and tracking procedures that govern the

20 processing of warrants. Upon receipt of a warrant, LASD confirms the status of the

21 warrant and that the description matches the inmate. The unit responsible for

22 processing warrants, reviews the name, date of birth, height, weight, and CI

23 number (unique identifying number). Once this information has been verified,

24 LASD places a hold in its system, notifies the requesting agency that a hold has

25 been placed, and delivers copies of the warrant notification to the inmate. Any

26 warrants disputed by inmates are investigated and recorded in a disputed warrant

27 log. When all Los Angeles County criminal matters conclude and the inmate

28 becomes due for release, LASD notifies the requesting agency of the inmate’s

12

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1 availability and calendars the deadline for release (specific number of days LASD

2 may hold the inmate solely on the basis of the warrant). LASD tracks time elapsed

3 against the deadline using a “tickler file, ” which is reviewed on a daily basis to

4 ensure that the inmate is not over-detained. Inmates not picked up before the

5 deadline are processed for release. LASD did not subject ICE holds to these

6 procedures. LASD implemented no procedures to ensure or confirm the validity of

7 the ICE hold, that it matched the inmate in custody or that the ICE detainer

8 provided a basis for detention within the scope of LASD’s legal authority. LASD

9 likewise maintained no procedures to calendar the deadline for release, track the

10 deadline, and ensure release processing before the deadline elapsed. Thus, LASD’s

11 handling of ICE detainers represents a significant deviation from normal LASD

12 practices with regard to warrants and holds.

13

44. An individual detained by LASD solely on the basis of an

14 immigration hold remains in the legal and actual custody of LASD.

15

45. DHS does not reimburse local law enforcement agencies for the cost

16 incurred in detaining an inmate on an immigration hold. According to 8 C.F.R.

17 §287.7(e), DHS incurs no fiscal responsibility for detention pursuant to an

18 immigration hold.

19

46. The issuance of an immigration hold does not ensure that ICE will

20 assume custody over the detainee or that ICE will take any action against the

21 detainee. ICE may or may not pick up the detainee held on the immigration

22 detainer. If ICE picks up the detainee, it may or may not initiate removal

23 proceedings against the detainee after interviewing the individual and reviewing

24 the case. In some cases, ICE may discover that the detainee is not actually

25 removable, in which case ICE will take no action and release the individual. In

26 other cases, ICE may initiate or reinstate removal proceedings against the

27 individual. Once ICE initiates proceedings, an individual who is not subject to

28

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1 mandatory immigration detention may be eligible for release on his or her own

2 recognizance, supervised released, or bond.

3

B. LASD’s Pattern and Practice of Refusing to Allow Posting of Bail

4

when an Immigration Hold has been Lodged Against an Inmate.

5

47. Until this week, LASD had a pattern and practice of refusing to allow

6 inmates admitted to bail by state law to post their bail bonds if they have an

7 immigration hold, thus preventing them from securing their release from custody

8 pending resolution of the charges against them.

9

48. The California Constitution provides a fundamental right to bail. The

10 existence of an immigration hold legally has no affect on a person’s right to post

11 bail and be released from criminal custody.

12

49. Upon information and belief, LASD electronically codes every

13 immigration hold as “no bail.” This coding applies to every person in LASD

14 custody, as well as to every person in the custody of police departments within Los

15 Angeles County. The “no bail” notation is placed on the record of any detainee

16 subject to an immigration hold, regardless of their eligibility for bail under the

17 County bail schedule or court order.

18

50. Upon information and belief, LASD jailers and bail administrators

19 have interpreted this coding to mean that they are not permitted to allow a person

20 subject to an immigration hold to post bail. As a result, they have routinely turned

21 away and refused to accept lawfully-tendered bail bonds from bail bondsmen,

22 family members and others when they attempt to lawfully post bail for an inmate.

23

51. Over the past few years, Plaintiffs’ counsel have represented or

24 assisted dozens of individuals who remained in LASD custody after their LASD

25 jailers would not permit them to post bail on account of an immigration hold

26 lodged against them.

27

28

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1

52. Numerous bail bondsmen have confirmed that in the overwhelming

2 majority of cases, LASD personnel at both LASD stations and at the County Jails

3 will not permit them to post bail for individuals with an immigration hold.

4

53. The California state bail agency, Golden State Bail Bonds, reported in

5 a recent memo that Los Angeles County is one county in California where its

6 members are not able to post bail if their clients have an immigration hold.

7

54. Numerous phone calls to jailers at LASD jails and stations confirm

8 that, until this week, LASD’s practice was not to allow detainees with ICE holds to

9 post bail.

10

55. LASD’s practice of refusing to allow detainees to post bail if they had

11 an immigration hold has affected the practice of police departments within Los

12 Angeles County as well. Upon information and belief, immigration hold

13 information is routed to police departments through LASD, and those departments

14 also rely on the LASD’s “no bail” notation for ICE holds. Accordingly, most, if

15 not all, police departments in Los Angeles County follow LASD’s practice of

16 refusing to allow inmates to post bail if they have an immigration hold. As a

17 result, many police stations transfer individuals to LASD custody who they

18 otherwise would have released on bail prior to their arraignment.

19

56. Unlike other “no bail holds” in the criminal system, such as parole

20 holds, there is no legal authority that permits LASD to deny a person with an ICE

21 hold the opportunity to post bail.

22

C. LASD’s Continuing Pattern and Practice of Prolonging Inmates’

23

Detention Solely on the Basis of the Immigration Hold.

24

57. LASD has a continuing pattern and practice of prolonging inmates’

25 detention solely on the basis of the immigration hold after the expiration of any

26 state law authority to detain them.

27

28

15

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1

58. LASD, as a matter of policy and practice, detains every person with

2 an ICE hold beyond their release date on the sole basis of the immigration hold.

3 Thus, LASD continues the detention of every person subject to an immigration

4

59. hold beyond the state-mandated release date. In other words, the

5 LASD ignores its mandatory duty under state law to release detainees subject to

6 immigration holds after, for example, no charges were filed against them, they

7 have served the entirety of their sentence, they are ordered released on their own

8 recognizance, they have posted bail, or a jury has found them not guilty of the

9 crime with which they have been charged. Most commonly, LASD continues the

10 detention for 48 hours, excluding weekends and holidays. It regularly detains

11 individuals for more than 48 hours after they would otherwise be released from

12 custody.

13

60. The LASD asks every person booked into its custody what country

14 they were born in. Upon information and belief, even when a detainee declares

15 that he or she was born in the United States, LASD nonetheless complies with the

16 immigration hold.

17

D. Plaintiffs’ Allegations

18

1. Duncan Roy

19

61. On November 15, 2011, LASD arrested Mr. Roy in Malibu,

20 California on an extortion charge for threatening to blog about an allegedly

21 fraudulent real estate deal. LASD booked him into the custody of the Lost Hills

22 Station in Malibu.

23

62. After booking, Mr. Roy was eligible for release on bail at $35,000

24 according to the Los Angeles County bail schedule. Within hours of his arrest, a

25 bail bondsman traveled to the station and attempted to post bail for him. The jailer

26 refused to accept the bond, stating that Mr. Roy was going to have an immigration

27 hold lodged on him. Hours later, ICE lodged an immigration hold. LASD coded

28 Mr. Roy’s inmate information as “no bail.”

16

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1

63. The bail bondsman again attempted to post the bail bond but the jailer

2 refused to accept it, stating that he could not post bail because Mr. Roy had an ICE

3 hold.

4

64. At arraignment on the charge, a judge approved Mr. Roy’s bail at the

5 $35,000 amount. Afterwards, LASD transferred him to Men’s Central Jail. The

6 bail bondsman again attempted on multiple occasions and over the course of

7 multiple days to post bail for Mr. Roy, but each time LASD personnel refused to

8 allow him to post bail for Mr. Roy. LASD personnel stated that they could not

9 accept the bail bond because of the immigration hold lodged against Mr. Roy.

10

65. LASD also prevented the bail bondsman from meeting with Mr. Roy,

11 telling him that he was not permitted to visit with him because he was not

12 permitted to post bail for him.

13

66. Mr. Roy hired a criminal defense attorney and an immigration lawyer.

14 Neither of them was able to persuade LASD that it was obligated to accept Mr.

15 Roy’s bail bond.

16

67. Mr. Roy was detained in the so-called “gay dorm” in Men’s Central

17 Jail.

18

68. Mr. Roy suffers prostate and colon cancer and requires routine

19 monitoring to ensure that his cancer does not regress. Mr. Roy requested medical

20 care to check on his cancer, but LASD did not comply with his requests.

21

69. Mr. Roy also filed complaints with LASD stating that he could not

22 post bail due to the immigration hold and requesting that an ICE agent speak to

23 him so that he could tell them that the immigration hold was placed in error.

24 LASD never responded to his complaints and did not provide him an opportunity

25 to speak with an ICE agent.

26

70. After LASD held Mr. Roy in jail for 89 days, ICE lifted his

27 immigration hold on humanitarian grounds and LASD finally permitted Mr. Roy’s

28

17

Case 2:12-cv-09012-BRO-FFM Document 125 Filed 12/07/15 Page 20 of 52 Page ID #:1190

1 bail bondsman to post bail. Mr. Roy was released from LASD custody on

2 February 8, 2012.

3

71. Mr. Roy lost substantial income as a result of his imprisonment, and it

4 has affected his reputation. His mental and physical health also significantly

5 declined.

6

72. Plaintiff Roy seeks damages for himself and not on behalf of any class

7 for LASD’s practice of refusing to honor bail. Prior to his arrest, Roy was granted

8 humanitarian immigration parole due to his ongoing cancer therapy and

9 monitoring. After his parole expired, he received an extension to remain in the

10 United States until December 23, 2011. Had he left the U.S. in compliance with

11 the deadline, he would not have incurred unlawful presence and implications for

12 his future ability to return to the United States. Though Roy booked a plane ticket

13 to return to Europe on December 23, and intended to return on that flight, he was

14 prevented from leaving because LASD refused to accept bail, unlawfully detaining

15 him until February 8, 2012. His inability to comply with his immigration

16 requirements has created barriers to his ability to be readmitted into the United

17 States.

18

73. As a result of the Defendants’ unlawful conduct as alleged herein,

19 Plaintiff Roy suffered serious emotional distress, was not adequately treated for his

20 medical condition, and suffered lost income, profits and business opportunity.

21 Regarding the latter, at the time of his arrest, Mr. Roy was scheduled to begin

22 production on a film shortly after the date of his arrest. The film project fell apart

23 due to Roy’s 89-day, unlawful imprisonment. Plaintiff Roy lost income associated

24 with the film project. He also lost rental income associated with three months of

25 lost rental bookings on the home he owns in Malibu, California because his

26 incarceration prevented him from renting his home as he normally does.

27

28

18

Case 2:12-cv-09012-BRO-FFM Document 125 Filed 12/07/15 Page 21 of 52 Page ID #:1191

1

2. Alain Martinez-Perez

2

74. On December 14, 2011, LASD arrested Mr. Martinez-Perez about 6

3 a.m. on a domestic battery charge arising from a domestic dispute. Mr. Martinez-

4 Perez had left the house after his partner became physically violent with him.

5 Enraged, his partner called the police in an attempt to bribe Mr. Martinez-Perez to

6 come home. When the police arrived, Mr. Martinez-Perez explained that his

7 partner had in fact battered him. Nonetheless, LASD officers arrested him.

8

75. LASD booked Mr. Martinez-Perez into the Industry station. He was

9 eligible for release on bail by Los Angeles County bail schedule in the amount of

10 $20,000.

11

76. Within a matter of hours, ICE lodged an immigration hold against

12 him. LASD coded Mr. Martinez-Perez’s inmate information as “no bail.”

13

77. Mr. Martinez-Perez’s cousin contacted a bail bondsman to post bail

14 for him. The bail bondsman attempted to post bail but LASD would not allow him

15 to post bail because of the immigration hold.

16

78. On December 16, 2011, LASD provided Mr. Martinez-Perez with a

17 certificate of release and clearance letter pursuant to California Penal Code § 849.5

18 informing him that no charges were filed against him and that his arrest shall not

19 be deemed to be an arrest but a detention only.

20

79. LASD did not release him, however. It maintained custody over him

21 until December 20, 2011 at 3 p.m. solely on the basis of the immigration hold. At

22 that time, ICE came and picked him up.

23

80. After interviewing him, ICE issued a Notice to Appear – a document

24 charging him with grounds of removability from the United States – and booked

25 him into immigration custody. ICE detained him at the Mira Loma immigration

26 detention facility in Lancaster, California before Mr. Martinez bonded out of

27 immigration custody.

28

19

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1

81. LASD detained Mr. Martinez-Perez for approximately two days as a

2 result of its refusal to allow him to post bail on account of the immigration hold. It

3 detained him for approximately four additional days beyond his release date solely

4 on the immigration hold.

5

3. Annika Alliksoo

6

82. On July 12, 2012, LASD arrested Ms. Alliksoo outside a Walmart in

7 Palmdale, California charging her with grand theft. LASD accused her of

8 attempting to steal groceries.

9

83. LASD booked her into custody at the Palmdale station. She was

10 eligible to be released on bail of $20,000 according to Los Angeles County bail

11 schedule. Within a matter of hours, ICE lodged an immigration hold on her.

12

84. Ms. Alliksoo’s husband contacted two bail bondsmen on or about July

13 12 to post bail for her. Both bail bondsmen attempted independently to post bail

14 for Ms. Alliksoo, but LASD personnel at the Palmdale station would not allow

15 them to post bail for her due to the presence of the immigration hold.

16

85. At arraignment, the District Attorney filed a petty theft charge against

17 Ms. Alliksoo, and the court admitted her to bail at $10,000. LASD transferred her

18 to Lynwood Jail.

19

86. Once in the custody of Lynwood Jail, the bail bondsmen again

20 attempted to post bail for her but the jailer would not accept the bail bond due to

21 the presence of the immigration hold.

22

87. At Ms. Alliksoo’s next court hearing on July 27, having already spent

23 15 days in jail on a charge of petty theft, the judge ordered her released on her own

24 recognizance because she was not able to bail out.

25

88. LASD did not release her. Rather, they maintained custody over her

26 solely on the basis of the immigration hold until July 30.

27

28

20

Case 2:12-cv-09012-BRO-FFM Document 125 Filed 12/07/15 Page 23 of 52 Page ID #:1193

1

89. On July 30, ICE picked Ms. Alliksoo up. After interviewing her, ICE

2 booked her into custody and issued a Notice to Appear charging her with grounds

3 of removability. Hours later, ICE released her from custody on supervised release.

4

90. LASD detained Ms. Alliksoo for approximately 15 days due to its

5 refusal to allow her to post bail due to the immigration hold. It then detained her

6 an additional three days solely on the immigration hold.

7

4. Clemente De La Cerda

8

91. On October 5, 2012, the Whittier police department arrested Plaintiff

9 De La Cerda for a probation violation and misdemeanor possession of nunchucks,

10 which the police apparently believed to be a weapon. Mr. De La Cerda uses

11 nunchucks in his Tae Kwon Do practice and carried the nunchucks in his backpack

12 because he had gone to his Tae Kwon Do studio earlier that day.

13

92. Upon information and belief, ICE placed an immigration hold on Mr.

14 De La Cerda shortly after he was booked into custody.

15

93. Mr. De La Cerda pled no contest to the possession of nunchucks

16 charge. Mr. De La Cerda has an upcoming hearing on October 29, 2012 regarding

17 a probation violation. He expects that he may be ordered released on or around

18 that date, but due to the immigration hold, will be detained by the LASD beyond

19 his release date.

20 IV. CLASS ACTION ALLEGATIONS FOR EQUITABLE RELIEF

21

94. Plaintiffs De La Cerda and Varela seek class-wide injunctive and

22 declaratory relief, pursuant to Federal Rules of Civil Procedure 23(a) and (b)(2), on

23 behalf of a class and a subclass.

24

1. The Equitable Relief Class

25

95. The equitable relief class is defined as all persons who are or will be

26 (1) detained in the custody of the LASD, (2) have an immigration hold placed on

27 them by ICE while in LASD custody that was not supported by a lawful probable

28 cause determination, (3) are entitled to be released from LASD custody under

21

Case 2:12-cv-09012-BRO-FFM Document 125 Filed 12/07/15 Page 24 of 52 Page ID #:1194

1 applicable federal or state law (which creates a liberty interest in such release), (4)

2 due to LASD policy and practice are not released (to the extent that they were

3 otherwise entitled to release) but held in LASD custody on the authority of the ICE

4 hold after they were eligible for release from LASD custody.

5

a. Numerosity

6

96. The class meets the numerosity requirement of Rule 23(a)(1). There

7 are approximately 20,000 inmates confined in the Los Angeles County Jails each

8 year who are being or will be detained for 48 hours or more by LASD after they

9 would otherwise be entitled to release on the sole basis of the ICE hold. The

10 membership of the class continuously changes, rendering joinder of all members

11 impracticable. The inclusion within the class of future inmates in the class also

12 makes joinder of all members impracticable.

13

b. Commonality

14

97. The class meets the commonality requirement of Rule 23(a)(2).

15 Questions of law and fact presented by the named plaintiffs are common to other

16 members of the class. The common contentions that unite the claims of the class

17 include the following:

18

 The practice of holding class members in the Los Angeles County jails

19

for 48 hours or more after they are otherwise entitled to release on the

20

basis of an ICE hold violates the Fourth Amendment of the United States

21

Constitution.

22

 The practice of holding class members in the Los Angeles County jails

23

for 48 hours or more after they are otherwise entitled to release on the

24

basis of an ICE hold violates the Fourteenth Amendment of the United

25

States Constitution.

26

 The practice of holding class members in the Los Angeles County jails

27

for 48 hours or more on the basis of an ICE hold after they are otherwise

28

entitled to release violates the state common law protections against false

22

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1

imprisonment;

2

 The practice of holding class members in the Los Angeles County jails

3

for 48 hours or more after they are otherwise entitled to release on the

4

basis of an ICE hold constitutes an unreasonable seizure under Article I,

5

Section 13 of the California Constitution; and

6

 The practice of holding class members in the Los Angeles County jails

7

for 48 hours or more after they are otherwise entitled to release on the

8

basis of an ICE hold violates the due process guarantee of Article I,

9

Section 7 of the California Constitution

10

c. Typicality

11

98. The claims of Plaintiffs De La Cerda and Varela are typical of those

12 of the class as a whole because they have an ICE hold placed on them that was not

13 supported by a lawful probable cause determination while they were in LASD

14 custody and will shortly be otherwise eligible for release, but will be detained for

15 48 or more hours by Defendants as a result of the ICE hold.

16

d. Adequacy of Representation

17

99. Plaintiffs are adequate class representatives and thus meet the

18 requirements of Rule 23(a)(4). De La Cerda and Varela are presently in the

19 custody of the LASD, have an ICE hold placed on them that is not based on

20 probable cause, and are being denied the opportunity to be released by LASD

21 because they have an ICE hold placed on them. They have no conflict of interest

22 with other class members, they will fairly and adequately protect the interests of

23 the class, and they understand their responsibilities as class representatives.

24

100. The foregoing Plaintiffs (as well as those Plaintiffs acting as class

25 representatives for the class damages claims, who are discussed infra) are

26 represented by highly qualified and experienced counsel: The ACLU of Southern

27 California, the ACLU Immigrants Rights Project, the National Day Laborer

28 Organizing Network and Kaye, McLane, Bednarski & Litt, who, as elaborated

23

Case 2:12-cv-09012-BRO-FFM Document 125 Filed 12/07/15 Page 26 of 52 Page ID #:1196

1 below, are all highly experienced in cases of this type.

2

101. Plaintiffs’ co-lead counsel on behalf of the ACLU of Southern

3 California, Peter Eliasberg, is the Legal Director of the ACLU Foundation of

4 Southern California. Since its founding in 1923, the ACLU of Southern California

5 has been litigating a broad variety of civil rights cases, including prisoners’ rights

6 cases. Attorney Eliasberg has been lead counsel or co-lead counsel in numerous

7 federal civil rights class actions in the Central District of California as well as co-

8 counsel on a federal habeas petition on behalf of Susan McDougal. He has been

9 lead counsel in civil rights matters before the United States Court of Appeals for

10 the Ninth Circuit, the California Supreme Court, and the United States Supreme

11 Court, and has argued a case before the U.S. Supreme Court. Since 2009,

12 Eliasberg has served as co-lead class counsel for all the inmates in Los Angeles

13 County Jails in Rutherford v. Baca and in 2012 was named co-lead counsel for all

14 the inmates in Men’s Central Jail and Twin Towers in Rosas v. Baca, a federal

15 class action in this Court. In addition, co-counsel Jennie Pasquarella, Peter Bibring,

16 and Ahilan Arulanantham all have experience serving as class counsel in large

17 civil rights cases litigated in federal court.

18

102. Plaintiffs’ co-lead counsel on behalf of the Immigrants’ Rights Project

19 of the American Civil Liberties Union is Cecilia Wang. Ms. Wang is Director of

20 the Immigrants' Rights Project of the ACLU Foundation ("ACLU IRP"). She has

21 substantial experience serving as plaintiffs' counsel in certified class action

22 lawsuits in federal court, including Lopez-Valenzuela, et al. v. Maricopa County,

23 No. 08-660 (D. Ariz. filed April 4, 2008), which seeks relief on behalf of pretrial

24 detainees in Arizona who are ineligible for bail because of their immigration status,

25 and Ortega Melendres v. Arpaio, et al., No. 07-02513 (D. Ariz. filed Dec. 12,

26 2007), which challenges the Maricopa County Sheriff's Office's practice of race

27 discrimination and Fourth Amendment violations in traffic stops. In addition,

28 Omar Jadwat and Kate Desormeau, staff attorneys at ACLU IRP, have experience

24

Case 2:12-cv-09012-BRO-FFM Document 125 Filed 12/07/15 Page 27 of 52 Page ID #:1197

1 serving as counsel in class-action lawsuits including Valle Del Sol v. Whiting,

2 No.10-01061 (D. Ariz. filed May 17, 2010), and Utah Coalition of La Raza, et al.

3 v. Herbert, No. 11-00401 (D. Utah filed May 3, 2011). Founded in 1987, the

4 ACLU IRP has extensive experience litigating civil rights and class action lawsuits

5 on behalf of detained individuals, including Franco-Gonzalez v. Napolitano et al.,

6 No. 10-02211 (C.D. Cal filed March 26, 2010), and Rodriguez v. Robbins, No. 07-

7 03239 (C.D. Cal filed May 16, 2007). The ACLU IRP will commit its expertise

8 and resources to successfully represent the proposed classes in this action.

9

103. Plaintiffs’ co-lead counsel on behalf of the National Day Laborer

10 Organizing Network (NDLON), Chris Newman, is the Legal Director of the

11 National Day Laborer Organizing Network. Since its founding in 2001, NDLON

12 has litigated a variety of constitutional and civil rights cases. Attorney Newman

13 currently serves as co-counsel in the civil rights class action Valle Del Sol v.

14 Whiting, No.10-01061 (D. Ariz. filed May 17, 2010). He has also been counsel in

15 constitutional and civil rights matters before the United States Court of Appeals for

16 the Ninth and Eleventh Circuits, including Hispanic Interest Coalition of Alabama

17 v. Bentley, No. 11-14535 (11th Cir.), as well as the Central District of California.

18 In addition, Jessica Karp, staff attorney at NDLON, has experience serving as

19 counsel in civil rights class action Valle Del Sol v. Whiting, and has been counsel

20 in constitutional and civil rights matters before the United States Court of Appeals

21 for the Ninth and Eleventh Circuits.

22

104. Plaintiffs’ co-lead counsel on behalf of Kaye, McLane, Bednarski &

23 Litt, Barrett S. Litt, specializes in complex civil rights litigation, particularly civil

24 rights class actions, and has extensive experience handling jail matters. The law

25 enforcement or jail/prison class actions in which he has been named class counsel

26 in certified classes are listed below. (Where there is a reported decision, the cite is

27 provided.)

28

25

Case 2:12-cv-09012-BRO-FFM Document 125 Filed 12/07/15 Page 28 of 52 Page ID #:1198

1

 Multi-Ethnic Immigrant Worker Network v. City of Los Angeles, Case

2

No.: CV 07-3072 AHM (FMMx) (class action for injunctive relief and

3

damages for challenging the LAPD’s assault on a lawful immigrant rights

4

rally in MacArthur Park on May 1, 2007: Multi-Ethnic Immigrant Worker

5

Network v. City of Los Angeles, 24 F.R.D. 621 (C.D. Cal. 2007)

6

(certifying class).

7

 Williams v. Block, Case No.: CV-97-03826-CW (Central District of

8

California) and related cases (a series of county jail overdetention and

9

strip search cases, settled for $27 Million and a complete revamp of jail

10

procedures); Streit v. County of Los Angeles, 236 F.3d 552, 556 (9th Cir.

11

2001) (finding that sheriff is a county actor and referring, at fn. 2, to the

12

concurrent, unreported reversal of the denial of class certification by the

13

district court).

14

 Craft v. County of San Bernardino, Case No.: EDCV05-00359 SGL

15

(C.D.Cal.) (certified class action against the Sheriff of San Bernardino

16

County for blanket strip searches of detainees, arrestees, and persons

17

ordered released from custody; partial summary judgment decided for

18

plaintiffs; $25.5 Million settlement approved April 1, 2008); Craft v.

19

County of San Bernardino, 468 F.Supp.2d 1172 (C.D.Cal. 2006)

20

(approving class settlement).

21

 Lopez v. Youngblood, No. CV07-00474 LJO (DLBx) (E.D. Calif.) (class

22

action against Kern County, California, for unlawful pre-arraignment and

23

post-release strip searches and strip searches not conducted in private;

24

class certification and summary judgment on liability granted; settlement

25

approved in 2011for class fund of approximately $7 Million); Lopez v.

26

Youngblood, 2009 WL 909817 (E.D. Cal. Apr. 1, 2009).

27

 Bynum v. District of Columbia, Case No.: 02-956 (RCL) (D.D.C.) (class

28

action against the District of Columbia for overdetentions and blanket

26

Case 2:12-cv-09012-BRO-FFM Document 125 Filed 12/07/15 Page 29 of 52 Page ID #:1199

1

strip searches of pretrial jail detainees after they have been ordered

2

released from custody; final approval of $12,000,000 settlement occurred

3

January 2006); Bynum v. Dist. of Columbia, 214 F.R.D. 27 (D.D.C. 2003)

4

(certifying class)

5

 Barnes v. District of Columbia, Civil Action No: 06-315 (RCL) (D.D.C.)

6

(class action against District of Columbia for continuing to both over-

7

detain and strip search post-release inmates despite settlement in Bynum,

8

supra; class certification granted; partial summary judgment granted

9

plaintiffs and remaining issues to be set for trial); Barnes v. Dist. of

10

Columbia, 242 F.R.D. 113 (D.D.C. 2007) (certifying class)]

11

 Johnson v. District of Columbia, Case No. 02-2364 (RMC) (D.D.C.)

12

(class action against the District of Columbia and United States Marshals

13

for blanket strip searches of arrestees initially taken to jail without

14

reasonable suspicion and not involved in drug or violent activity;

15

judgment for defendant on appeal); Johnson v. Dist. of Columbia, 248

16

F.R.D. 46 (D.D.C. 2008) (certifying class).

17

 Jones v. Murphy, Case No. CCB 05 CV 1287 (D. Maryland) (class action

18

challenging overdetentions and illegal strip searches in Central Booking in

19

Baltimore, MD, jail; class certification granted in part and denied in part;

20

summary judgment motions pending); Jones v. Murphy, 256 F.R.D. 519

21

(D. Md. 2009) (certifying class).

22

 Gail Marie Harrington-Wisely, et al. v. State of California, et al., Superior

23

Court Case No.: BC 227373 (backscatter x-ray searches of visitors to

24

California prisons without reasonable suspicion; class certification

25

granted; stipulated injunction entered; case recently remanded back to

26

state court for further proceedings).

27

105. Mr. Litt has authored articles on law enforcement related class

28 certification issues. See “Class Certification in Police/Law Enforcement Cases”,

27

Case 2:12-cv-09012-BRO-FFM Document 125 Filed 12/07/15 Page 30 of 52 Page ID #:1200

1 Civil Rights Litigation and Attorney’s Fee Annual Handbook, Vol.18, Ch.3, West

2 Publishing 2002; “Obtaining Class Attorney’s Fees,” Civil Rights Litigation and

3 Attorney’s Fee Annual Handbook, Vol. 26, Ch. 15, West Publishing 2010.

4

106. Plaintiffs meet the requirement of Rule 23(b)(2), as the Defendant has

5 acted, or omitted to act, on grounds generally applicable to the class, thereby

6 making equitable relief appropriate with respect to the class as a whole.

7

2. The Equitable Relief Sub-class

8

107. The equitable relief sub-class is defined as all persons who are or will

9 be (1) detained in the custody of the LASD, (2) have an immigration hold placed

10 on them by ICE while in LASD custody that was issued to initiate an investigation

11 to determine whether the person is subject to removal, issued on the basis of a

12 warrant of arrest for removal proceedings, or issued on the basis of initiating

13 removal proceedings and serving a Notice to Appear or other charging documents,

14 (3) are entitled to be released from LASD custody under applicable federal or state

15 law (which creates a liberty interest in such release), (4) due to LASD policy and

16 practice are not released (to the extent that they were otherwise entitled to release)

17 but held in LASD custody on the authority of the ICE hold (5) for more than 48

18 hours after they were eligible for release from LASD custody without a probable

19 cause hearing before a neutral decisionmaker for a probable cause determination.

20 The distinctions between this sub-class and the equitable relief class are that this

21 sub-class asserts that, even if an ICE hold for 48 hours total is permissible,

22 additional holding time beyond 48 hours without a probable cause hearing before a

23 neutral decisionmaker is not, whereas the equitable relief class asserts that no

24 period of an ICE hold is permissible.

25

a. Numerosity

26

108. The subclass for class two meets the numerosity requirement of Rule

27 23(a)(1). There are approximately 20,000 inmates confined in the Los Angeles

28 County Jails each year who LASD will detain for ICE because ICE has placed a

28

Case 2:12-cv-09012-BRO-FFM Document 125 Filed 12/07/15 Page 31 of 52 Page ID #:1201

1 hold on them, who are being, or will be, detained for more than 48 hours by LASD

2 after they would otherwise be entitled to release on the basis of the ICE hold.

3 More than 15,000 of those holds are issued as “investigatory holds” or on the basis

4 of a warrant issued by an ICE officer. For approximately 31% of those 15,000,

5 with investigatory or ICE officer warrant ICE holds, or 4,650 of the 15,000, their

6 continued detention on the ICE hold will run more than 48 hours because they are

7 held on Saturday, Sunday or holiday. Thus, approximately 4,650 will be held by

8 LASD for more than 48 hours after they were eligible for release from LASD

9 custody without a probable cause determination by a neutral decisionmaker. The

10 membership of the subclass continuously changes, rendering joinder of all

11 members impracticable. The inclusion within the subclass of future inmates in the

12 downtown Jail Complex also makes joinder of all members impracticable.

13

b. Commonality

14

109. The subclass meets the commonality requirement of Rule 23(a)(2).

15 Questions of law and fact presented by the named plaintiffs are common to other

16 members of the class. The common contentions that unite the claims of the class

17 include the following:

18

 The practice of holding subclass members in the Los Angeles County

19

jails for more than 48 hours after they are otherwise entitled to release on

20

the basis of an ICE hold without a probable cause determination by a

21

neutral decisionmaker violates the Fourth Amendment of the United

22

States Constitution;

23

 The practice of holding subclass members in the Los Angeles County

24

jails for more than 48 hours after they are otherwise entitled to release on

25

the basis of an ICE hold without a probable cause determination by a

26

neutral decisionmaker violates the due process guarantee of Fourteenth

27

Amendment of the United States Constitution;

28

 The practice of holding subclass members in the Los Angeles County

29

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1

jails for more than 48 hours after they are otherwise entitled to release on

2

the basis of an ICE hold without a probable cause determination by a

3

neutral decisionmaker violates the state common law protections against

4

false imprisonment;

5

 The practice of holding subclass members in the Los Angeles County

6

jails for more than 48 hours after they are otherwise entitled to release on

7

the basis of an ICE hold without a probable cause determination by a

8

neutral decisionmaker constitutes an unreasonable seizure under Article

9

I, Section 13 of the California Constitution.

10

 The practice of holding subclass members in the Los Angeles County

11

jails for more than 48 hours after they are otherwise entitled to release on

12

the basis of an ICE hold without a probable cause determination by a

13

neutral decisionmaker violates the due process guarantee of Article 1,

14

Section 7 of the California Constitution.

15

c. Typicality

16

110. The claims of Plaintiff Varela are typical of those of those of the sub-

17 class because, due to the timing of Mr. Varela’s release date, he will be detained

18 more than 48 hours and over the weekend without a probable cause determination

19 by a neutral decisionmaker solely on the basis of the ICE hold.

20

d. Adequacy of Representation

21

111. Plaintiffs are adequate class representatives and thus meet the

22 requirements of Rule 23(a)(4). Plaintiff Varela is presently in custody of the

23 LASD and will have been held for more than 48 hours after he is otherwise entitled

24 to relief on the basis of an ICE hold without a probable cause determination by a

25 neutral decisionmaker. He has no conflict of interest with other class members,

26 and he will fairly and adequately protect the interests of the class. He and the sub-

27 class are represented by highly qualified and experienced counsel: The ACLU of

28 Southern California, the ACLU Immigrants Rights Project, the National Day

30

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1 Laborer Organizing Network and Kaye, McLane, Bednarski & Litt. Plaintiffs

2 incorporate by reference the allegations set forth in paragraphs 93-98 above.

3

112. Plaintiffs meet the requirement of Rule 23(b)(2) as the Defendant has

4 acted, or omitted to act, on grounds generally applicable to the class, thereby

5 making habeas corpus relief appropriate with respect to the class as a whole.

6 V. CLASS ACTION ALLEGATIONS FOR DAMAGES

7

113. Plaintiffs Martinez-Perez and Alliksoo bring this damages claim based

8 on federal and supplemental state law claims, including under 42 U.S.C. §1983,

9 seeking class-wide relief, pursuant to Federal Rules of Civil Procedure 23(a) and

10 (b)(3), on behalf of all Damages Classes alleged below.

11

114. The foregoing named Plaintiffs are also collectively referred to as the

12 “Damages Class Representatives.”

13

1. Damages Classes One and Two (Federal and State

14

Respectively)

15

115. Damages Class One (hereafter and in the course of this litigation also

16 referred to as the “Federal Bail Damages Class”) is defined as all persons who,

17 during the two years prior to the filing of this complaint, and continuing until the

18 practice has ceased or until entry of judgment, whichever is sooner, have been or

19 will be (1) detained in the custody of the LASD, (2) have an immigration hold

20 placed on them by ICE while in LASD custody, (3) were eligible to post bail on

21 the basis of the County-wide bail schedule as provided by statute, an arrest

22 warrant, or a court order setting the amount of bail (4) but are not allowed to post

23 bail and be released due to LASD policy and practice.

24

116. Damages Class Two (hereafter and in the course of this litigation also

25 referred to as the “State Bail Damages Class”) is defined as all persons who,

26 beginning November 7, 2011 (six months before filing the initial state law 910

27

28

31

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1 class claim by Antonio Montejano),4 and continuing until cessation of the practice

2 or entry of judgment, whichever is sooner, have been or will be (1) detained in the

3 custody of the LASD, (2) have an immigration hold placed on them by ICE while

4 in LASD custody, (3) are eligible to post bail on the basis of the County-wide bail

5 schedule as provided by statute, an arrest warrant, or a court order setting the

6 amount of bail (4) but were or are not allowed to post bail and be released due to

7 LASD policy and practice.

8

2. Damages Classes Three and Four (Federal and State

9

Respectively)

10

117. Damages Class Three (hereafter and in the course of this litigation

11 also referred to as the “Federal ICE Damages Class”) is defined as all persons who,

12 during the two years prior to the filing of this complaint, and continuing until the

13 practice has ceased or until entry of judgment, whichever is sooner, have been or

14 will be (1) detained in the custody of the LASD, (2) have an immigration hold

15 placed on them by ICE while in LASD custody that was not supported by a lawful

16 probable cause determination, (3) are entitled to be released from LASD custody

17 under applicable federal or state law (which creates a liberty interest in such

18 release), and (4) due to LASD policy and practice are not released (to the extent

19 that they were otherwise entitled to release) but held in LASD custody on the

20 authority of the ICE hold after they were eligible for release from LASD custody.

21

118. Damages Class Four (hereafter and in the course of this litigation also

22 referred to as the “State ICE Damages Class”) is defined as all persons who,

23 beginning November 7, 2011 (six months before filing the initial state law 910

24 class claim by Antonio Montejano), and continuing until cessation of the practice

25

26 4 Should the Court conclude for some reason that the Montejano 910 claim does

27

not begin the running of the period for which a claim can be made, there were also subsequent 910 class claims filed that Plaintiffs can assert if necessary. This

28 applies to the other state damages classes asserted herein.

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1 or entry of judgment, whichever is sooner, have been or will be (1) detained in the

2 custody of the LASD, (2) have an immigration hold placed on them by ICE while

3 in LASD custody that was not supported by a lawful probable cause determination,

4 (3) are entitled to be released from LASD custody under applicable federal or state

5 law (which creates a liberty interest in such release), and (4) due to LASD policy

6 and practice are not released (to the extent that they were otherwise entitled to

7 release) but held in LASD custody on the authority of the ICE hold after they were

8 eligible for release from LASD custody.

9

3. Damages Sub-Classes to Damages Classes Three and Four,

10

AKA Classes Five and Six (Federal and State Respectively)

11

119. As alleged previously regarding the injunctive relied sub-class, there

12 are also sub-classes to the ICE Damages Classes. Because a sub-class is ultimately

13 treated as a separate class, should it become appropriate to distinguish it from the

14 class of which it is a part, Plaintiffs also refer to the sub-classes alleged in this

15 section as Classes Five and Six.

16

120. The sub-class to Damages Class Three (hereafter and in the course of

17 this litigation also referred to as Damages Class Five or the “Federal Post-48 Hour

18 ICE Damages Class”) is defined as all persons who, during the two years prior to

19 the filing of this complaint, and continuing until the practice has ceased or until

20 entry of judgment, whichever is sooner, have been or will be (1) detained in the

21 custody of the LASD, (2) have an immigration hold placed on them by ICE while

22 in LASD custody that was issued to initiate an investigation to determine whether

23 the person is subject to removal, on the basis of a warrant of arrest for removal

24 proceedings, or on the basis of initiating removal proceedings and serving a Notice

25 to Appear or other charging documents (3) are entitled to be released from LASD

26 custody under applicable federal or state law (which creates a liberty interest in

27 such release), (4) due to LASD policy and practice are not released (to the extent

28 that they were otherwise entitled to release) but held in LASD custody on the

33

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1 authority of the ICE hold (5) for more than 48 hours after they were eligible for

2 release from LASD custody without a probable cause hearing before a neutral

3 decisionmaker for a determination of probable cause.

4

121. The sub-class to Damages Class Four (hereafter and in the course of

5 this litigation also referred to as Damages Class Six or the “State Post-48 Hour ICE

6 Damages Class”) is defined as all persons who, beginning on November 7, 2011

7 (six months before the filing of the initial state law 910 class claim by Antonio

8 Montejano), and continuing until cessation of the practice or entry of judgment,

9 whichever is sooner, have been or will be (1) detained in the custody of the LASD,

10 (2) have an immigration hold placed on them by ICE while in LASD custody that

11 was issued to initiate an investigation to determine whether the person is subject to

12 removal, on the basis of a warrant of arrest for removal proceedings, or on the

13 basis of initiating removal proceedings and serving a Notice to Appear or other

14 charging documents, (3) are entitled to be released from LASD custody under

15 applicable federal or state law (which creates a liberty interest in such release), (4)

16 due to LASD policy and practice are not released (to the extent that they were

17 otherwise entitled to release) but held in LASD custody on the authority of the ICE

18 hold (5) for more than 48 hours after they were eligible for release from LASD

19 custody without a probable cause determination by a neutral decisionmaker.

20 VI. THE FOREGOING DAMAGES CLASSES MEET THE

21

REQUIREMENTS OF FEDERAL RULES OF CIVIL PROCEDURE 23(A).

22

23

122. Damages Classes One and Two meet the requirements of Rule 23 as

24 follows:

25

1. Numerosity

26

123. The classes meet the numerosity requirement of Rule 23(a)(1). There

27 are approximately 20,000 inmates (rounded to the nearest thousand) confined in

28 the Los Angeles County Jails each year who will be released to ICE because ICE

34

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1 has placed a hold on them. Austin at pg. 21. Approximately 45% of the 20,000, or

2 9,000 are held solely on pre-trial status; in other words they are not serving a

3 sentence. Approximately 43% of them, or 3,870, are classified as “low custody”

4 and are thus likely to be held pre-trial on a minor charge and therefore a low bail

5 amount under the County-wide bail schedule as provided by statute, an arrest

6 warrant, or court order. On information and belief, well over 1000 such

7 individuals (quite likely substantially more) would have posted bail in a given year

8 in light of the low bail amounts set for those charged with low level offenses,

9 except for the LASD practice of refusing to allow them to post bail.

10

2. Commonality

11

124. The classes meet the commonality requirement of Rule 23(a)(2).

12 Questions of law and fact presented by the named plaintiffs are common to other

13 members of the class. The common contentions that unite the claims of the class

14 include the following:

15

 The practice of denying the ability to post bail to inmates with ICE holds

16

violates the right to due process of laws of the 14th Amendment of the

17

United States Constitution;

18

 The practice of denying the ability to post bail to inmates with ICE holds

19

violates the state common law protection against false imprisonment;

20

 The practice of denying the ability to post bail to inmates with ICE holds

21

violates California Penal Code Section Cal. Penal Code § 1269b(g);

22

 The practice of denying the ability to post bail to inmates with ICE holds

23

violates Article I, section 12 of the California Constitution.

24

3. Typicality

25

125. Plaintiffs meet the typicality requirement of Rule 23(a)(3), since, as

26 alleged below, the claims of the Plaintiffs are typical of those of the class.

27

126. Plaintiff Martinez-Perez was denied the ability to post bail due to the

28 presence of an ICE hold, and was held beyond the expiration of any state law basis

35

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1 to detain him for four days, including over the weekend, on the ICE hold.

2

127. Plaintiff Alliksoo was denied the ability to post bail due to the

3 presence of an ICE hold and was held beyond the expiration of any state law basis

4 to detain her for three days, including over the weekend, on the ICE hold.

5

4. Adequacy of Representation

6

128. Plaintiffs are adequate class representatives and thus meet the

7 requirements of Rule 23(a)(4). Plaintiffs Martinez-Perez and Alliksoo were in the

8 custody of the LASD, were eligible for bail by County-wide bail schedule as

9 provided by statute, an arrest warrant, or had a court-ordered bail amount, had an

10 ICE hold placed on them, and were denied the opportunity to be released on bail

11 by Sheriff Baca because they had an ICE hold placed on them. They have no

12 conflict of interest with other class members, they will fairly and adequately

13 protect the interests of the class, and they understand their responsibilities as class

14 representatives.

15

129. The foregoing Plaintiffs (as well as those Plaintiffs acting as class

16 representatives for the class damages claims, who are discussed infra) are

17 represented by highly qualified and experienced counsel: The ACLU of Southern

18 California, the ACLU Immigrants Rights Project, the National Day Labor

19 Organizing Network and Kaye, McLane, Bednarski & Litt, who, as elaborated in

20 paragraphs 93-98, are all highly experienced in cases of this type.

21

130. Plaintiffs incorporate paragraphs 94 to 112, above, regarding the

22 parallel equitable relief class and its subclass. Except for the fact that the

23 Damages Class Representatives are out of custody, and the particular facts

24 showing that the claims are typical of the classes on whose behalf each acts as a

25 representative, the allegations contained in the foregoing paragraphs apply as well

26 to the Damages Class Representatives, and need not be repeated here, Damages

27 Classes One through Six accordingly meet the requirements of Federal Rule of

28 Civil Procedure 23(a) – numerosity, commonality, typicality and adequacy of

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1 representation.

2 VII. THE FOREGOING DAMAGES CLASSES MEET THE

3

REQUIREMENTS OF FEDERAL RULES OF CIVIL PROCEDURE 2 3(B)(3).

4

5

131. Damages Classes One through Six also meet the requirements of

6 Federal Rule of Civil Procedure 23(b)(3).

7

1. Predominance of Common Questions

8

132. The questions of law or fact common to class members predominate

9 over any questions affecting only individual members because the dominant issue

10 for all class members is whether there exists or existed a policy, custom and/or

11 practice of 1) refusing to allow class members to post bail because there was an

12 ICE hold on them, and 2) refusing to release class members otherwise entitled to

13 release on the basis of an ICE hold (either for the whole period – Damages Classes

14 Three and Four – or after the expiration of 48 hours after becoming entitled to

15 release – Damages Classes Five and Six.

16

133. The predominance of those issues for each damages class is sufficient

17 to certify the class under Rule 23(b)(3) pursuant to the provisions of F.R.Civ.P

18 23(c)(4), which authorizes the certification of a class “with respect to particular

19 issues,” even if there are other issues to be tried individually.

20

2. Superiority

21

134. A class action is superior to other available methods for fairly and

22 efficiently adjudicating the controversy. Most of the class members were detained

23 unlawfully for sufficiently few days that an individual lawsuit for such damages is

24 not economically viable, given the complexity of the issues, and lawyers are

25 unlikely to take such cases individually. The great majority of class members

26 accordingly do not have an individual interest in controlling the prosecution of the

27 case. This district is the proper forum for the claims encompassed by this action,

28 and there are no individual cases of which Plaintiffs are aware pending in this

37

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1 District pursuing damages for the violations at issue here despite the prevalence of

2 the problem.

3

135. The action is manageable. At a minimum, it will decide the critical

4 issue of Monell liability for all class members, and, given the nature of the claims,

5 it will also decide causation because the reason for the unlawful continuing

6 detention will be the policies asserted herein. These are all the issues that need to

7 be determined to establish liability to the respective classes.

8

136. General damages inherent in the constitutional violation could be

9 proven on a class wide basis. Individual (special) damages, to the extent a class

10 member chose to pursue them, would be proven on an individual basis under

11 procedures to be set by the Court.

12

137. Because the classes are confined to those regarding whom there

13 should be computerized jail records that will show, inter alia, the date of arrest,

14 whether bail was set, whether an ICE hold was placed on a person, the date of the

15 ICE hold, the date the person was entitled to release absent the ICE hold, and the

16 date of release or transfer to ICE, identifying the universe of likely class members

17 will be readily accomplished based on jail (and possibly court, if needed) records.

18

138. Thus, the proposed classes are manageable, and, without class

19 treatment, the overwhelming majority of class members would not have a viable

20 individual claim.

21 VIII. EXHAUSTION OF ADMINISTRATIVE REMEDIES FOR STATE

22

DAMAGES CLAIMS

23

139. Plaintiffs have complied with the jurisdictional prerequisites for filing

24 a tort claim for damages against the County. See Cal. Gov’t Code § 911.2.

25

140. On May 9, 2012, Plaintiff Duncan Roy filed an administrative tort

26 claim against the Los Angeles County Sheriff’s Department on behalf of himself

27 and the representative class. On May 23, 2012, he filed an amended claim. On

28 May 29, 2012, the County rejected his claim.

38

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1

141. On May 7, 2012, Antonio Montejano, a U.S. citizen detained by

2 LASD on an immigration hold, filed an administrative tort claim against the Los

3 Angeles County Sheriff’s Department on behalf of himself and the representative

4 class of persons detained solely on the basis of the immigration hold. On May 23,

5 2012, he filed an amended claim. On May 29, 2012, the County rejected his claim.

6 On September 13, 2012, Plaintiff Annika Alliksoo filed an administrative tort

7 claim against the Los Angeles County Sheriff’s Department on behalf of herself

8 and the representative class. On October 9, 2012, she filed an amended claim.

9 IX. FIRST CAUSE OF ACTION: FOURTEENTH AMENDMENT

10

VIOLATION (DUE PROCESS); 42 U.S.C. § 1983

11

(All Plaintiffs against all Defendants5)

12

142. Plaintiffs incorporate the allegations of the preceding and subsequent

13 paragraphs as if fully set forth herein.

14

143. As set forth above, Defendants refused to allow Plaintiffs and those

15 similarly situated to post bail for which they were eligible under the County-wide

16 bail schedule, prior to Plaintiffs’ arraignment, thus depriving Plaintiffs of their

17 liberty without due process of law.

18

144. As set forth above, Defendants refused to allow Plaintiffs and those

19 similarly situated to post the bail set for Plaintiffs by the courts in their criminal

20 cases, thus depriving Plaintiffs of their liberty without due process of law.

21

145. As set forth above, Defendants continued to detain Plaintiffs and those

22 similarly situated after their criminal cases had been resolved and all state law

23 5 For all causes of action pled, all claims for damages are made against Defendant

24 County of Los Angeles. All claims for injunctive relief are made against both

25

Defendant County of Los Angeles and Defendant Baca in his official capacity. Claims by Plaintiff Defendant Roy are made for damages on his own behalf.

26 Claims by Plaintiffs Alain Martinez-Perez and Annika Alliksoo are made for

27

damages on behalf of themselves and others similarly situated. Claims by Plaintiffs Clemente De La Cerda and Christian Michel Varela are made for

28 injunctive relief on behalf of themselves and others similarly situated.

39

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1 grounds to detain them had evaporated solely on the basis of the immigration hold,

2 thus depriving Plaintiffs of their liberty without due process of law.

3 X. SECOND CAUSE OF ACTION: FOURTH AMENDMENT

4

VIOLATION (UNLAWFUL SEIZURE); 42 U.S.C. § 1983

5

(All Plaintiffs against all Defendants)

6

146. Plaintiffs incorporate the allegations of the preceding and subsequent

7 paragraphs as if fully set forth herein.

8

147. As set forth above, Defendants refused to allow Plaintiffs and those

9 similarly situated to post bail for which they were eligible according to their

10 warrant of arrest or under the County-wide bail schedule, prior to Plaintiffs’

11 arraignment, thus seizing Plaintiffs in violation of the Fourth Amendment.

12

148. As set forth above, Defendants continued to detain Plaintiffs and those

13 similarly situated after their release date and the expiration of any and all state law

14 basis to detain them solely on the basis that ICE issued a Form I-247, and without

15 probable cause to believe that Plaintiffs were removable, thus seizing Plaintiffs in

16 violation of the Fourth Amendment.

17

149. Absent an emergency or other extraordinary circumstance, a detention

18 of over 48 hours prior to judicial determination of probable cause violates the

19 Fourth Amendment as a matter of law. See County of Riverside v. McLaughlin,

20 500 U.S. 44, 57 (1991). The 48 hours includes weekends and holidays.

21

150. As set forth above, Defendants as a routine matter continued to detain

22 Plaintiffs and those similarly situated for more than 48 hours after their release date

23 and the expiration of any and all state law basis to detain them solely on the basis

24 that ICE issued a Form I-247 without providing a judicial or quasi-judicial

25 determination of probable cause on any purported immigration charges, thus

26 seizing Plaintiffs in violation of the Fourth Amendment.

27 XI. FOURTH CAUSE OF ACTION: FALSE IMPRISONMENT

28

(All Plaintiffs against all Defendants)

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1

151. Plaintiffs incorporate the allegations of the preceding and subsequent

2 paragraphs as if fully set forth herein.

3

152. The duty of a jailor to release an inmate on bail is mandatory under

4 California law. California courts have held that jailers who failed to release an

5 inmate who satisfied bail requirements acted unlawfully and are liable for false

6 imprisonment. See Shakespeare v City of Pasadena, 230 Cal. App. 2d 375, 384

7 (1964); Moore v. City & County of San Francisco, 5 Cal. App. 3d 728 (1970).

8

153. As set forth above, Defendants refused to allow Plaintiffs and those

9 similarly situated to post bail for which they were eligible according to their

10 warrant of arrest or under the County-wide bail schedule, prior to Plaintiffs’

11 arraignment, thus non-consensually and intentionally confining Plaintiffs without

12 lawful privilege.

13

154. As set forth above, Defendants refused to allow Plaintiffs and those

14 similarly situated to post the bail set for Plaintiffs by the courts in their criminal

15 cases, thus non-consensually and intentionally confining Plaintiffs without lawful

16 privilege.

17

155. The duty of a jailor to release a detainee after a judge has ordered her

18 released on her own recognizance, after she has served her sentence, after charges

19 are dismissed or no charges are filed, or after the expiration of any other state law

20 basis to detain is also mandatory. See, e.g., Cal. Penal Code § 1384 (“If the judge

21 or magistrate directs the action to be dismissed, the defendant must, if in custody,

22 be discharged therefrom . . . .”); Sullivan v. Los Angeles, 12 Cal.3d 710, 722 n.11

23 (1974) (“Release of a prisoner after dismissal of charges against him is non-

24 discretionary since it is specifically mandated by Penal Code section 1384.”).

25

156. State law provides no authority for LASD to continue to detain an

26 individual beyond her release date and the expiration of any and all state law basis

27 to detain her solely on the basis of the immigration hold.

28

41

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1

157. As set forth above, Defendants continued to detain Plaintiffs and those

2 similarly situated after their release date and the expiration of any and all state law

3 basis to detain them, thus non-consensually and intentionally confining Plaintiffs

4 without lawful privilege.

5

158. Defendants are liable for the tort of false imprisonment of Plaintiffs,

6 because their employees, acting within the course and scope of their duties, would

7 have been liable for the tort of false imprisonment, based on the allegations above.

8 California Government Code § 815.2.

9 XII. FIFTH CAUSE OF ACTION: CALIFORNIA GOVERNMENT CODE

10

§§ 815.2 AND 815.6

11

(All Plaintiffs against all Defendants)

12

159. Plaintiffs incorporate the allegations of the preceding and subsequent

13 paragraphs as if fully set forth herein.

14

160. California law imposes a mandatory duty on LASD to release on bail

15 any arrestee or inmate who meets the statutory conditions for bail. See, e.g., Cal.

16 Const., Art. 1, section 12; Cal. Penal Code §§ 1268, 1269b, 1295(a). Further, the

17 federal and state constitutional provisions cited previously (due process, and search

18 and seizure) constitute mandatory duties under Article 1, § 26 of the California

19 Constitution.

20

161. As set forth above, Defendants refused to allow Plaintiffs and those

21 similarly situated to post bail for which they were eligible under a warrant of arrest

22 or the County-wide bail schedule, prior to Plaintiffs’ arraignment, thus failing to

23 discharge their mandatory duties under California law and causing Plaintiffs and

24 those similarly situated injuries those duties were designed to prevent.

25

162. As set forth above, Defendants refused to allow Plaintiffs and those

26 similarly situated to post the bail set for Plaintiffs by the courts in their criminal

27 cases, thus failing to discharge their mandatory duties under California law and

28

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1 causing Plaintiffs and those similarly situated injuries those duties were designed

2 to prevent.

3

163. As set forth above, California law also imposes a mandatory duty on

4 LASD to release a detainee after a judge has ordered her released on her own

5 recognizance, after she has served her sentence, after charges are dismissed or no

6 charges are filed, or after the expiration of any other state law basis to detain is also

7 mandatory.

8

164. State law provides no authority for LASD to continue to detain an

9 individual beyond her release date and the expiration of any and all state law basis

10 to detain her solely on the basis of the immigration hold.

11

165. As set forth above, Defendants continued to detain Plaintiffs and those

12 similarly situated after their release date and the expiration of any and all state law

13 basis to detain them solely on the basis of the immigration hold, thus failing to

14 discharge their mandatory duties under California law and causing Plaintiffs and

15 those similarly situated injuries those duties were designed to prevent.

16

166. Defendants are therefore liable to Plaintiffs and those similarly

17 situated under California Government Code § 815.6.

18 XIII. SIXTH CAUSE OF ACTION: NEGLIGENCE PER SE

19

(All Plaintiffs against all Defendants)

20

167. Plaintiffs incorporate the allegations of the preceding and subsequent

21 paragraphs as if fully set forth herein.

22

168. As set forth above, Defendants’ employees refused to allow Plaintiffs

23 and those similarly situated to post bail for which they were eligible under a

24 warrant of arrest or the County-wide bail schedule, prior to Plaintiffs’ arraignment,

25 thus violating their obligations under California law and causing injury to Plaintiffs

26 and those similarly situated in a manner in which California’s guarantees of the

27 right to post bail were designed to prevent, for the benefit of Plaintiffs and those

28 similarly situated.

43

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1

169. As set forth above, Defendants’ employees refused to allow Plaintiffs

2 and those similarly situated to post the bail set for Plaintiffs by the courts in their

3 criminal cases, thus violating their obligations under California law and causing

4 injury to Plaintiffs and those similarly situated in a manner in which California’s

5 guarantees of the right to post bail were designed to prevent, for the benefit of

6 Plaintiffs and those similarly situated.

7

170. As set forth above, Defendants continued to detain Plaintiffs and those

8 similarly situated after their release date and the expiration of any and all state law

9 basis to detain them solely on the basis of the immigration hold, in spite of their

10 mandatory duty under state law to release them, thus violating their obligations

11 under California law and causing injury to Plaintiffs and those similarly situated in

12 a manner in which California’s guarantees of release were designed to prevent, for

13 the benefit of Plaintiffs and those similarly situated.

14

171. Defendants are therefore liable to Plaintiffs and those similarly

15 situated for negligence per se under California Government Code § 815.6.

16 XIV. EIGHTH CAUSE OF ACTION: CIVIL CODE § 52.1 – VIOLATION

17

OF RIGHT TO TIMELY RELEASE [FOURTH AMENDMENT/DUE PROCESS, PENAL CODE §§ 1384 AND 3000(B)(2)(A)]

18

193. Plaintiffs incorporate the allegations of the preceding and subsequent

19 paragraphs as if fully set forth herein.

20

194. Defendants engaged in coercive acts that separately and independently

21 interfered with or attempted to interfere with the rights of Plaintiffs and Damages

22 Classes Two, Four, and Six to be timely released when they were entitled to

23 release in violation of their right to be free from unlawful seizure under the Fourth

24 Amendment and the Due Process clause, and their California equivalents, and in

25 violation of Penal Code §§ 1384 and 3000(b)(2)(A) (defendant must be

26 discharged from custody after dismissal [1384] or at the expiration of sentence

27 [3000(b)(2)(A])).

28

195. For purposes of this cause of action, and any other claims pursuant to

44

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1 Cal. Civil Code § 52.1, the phrase “class members” refers collectively to members

2 of any of Classes Two, Four and Six.

3

196. LASD’s record-keeping practices with regard to ICE holds constitute

4 coercion that is separate and independent from over-detention. While class

5 members were in the custody of LASD, Defendants recorded ICE detainers in

6 their electronic record systems as mandatory holds, treating such detainers as a

7 valid, lawful basis to deny release, including to release on bail, even though

8 LASD knew or should have known that an ICE detainer was nothing more than a

9 voluntary request, and provided no lawful basis to detain someone.

10

197. LASD’s practice of characterizing and recording ICE detainers as

11 mandatory holds was both unlawful and coercive. It was unlawful because the

12 detainers provided no lawful basis for detention. It was coercive because it falsely

13 communicated to employees and agents that ICE holds authorized and required

14 class members to be detained. This misrepresentation initiated various unlawful

15 consequences, including over-detention, denial of the right to post bail and

16 exclusion from various alternatives to custody programs.

17

198. LASD’s coercive and unlawful record-keeping practices were

18 separate and independent from the consequences that flowed from this record

19 keeping: LASD’s failure to release inmates when all criminal matters resolved

20 (i.e. illegal detention for civil purposes despite the absence of legal authority to do

21 so).

22

199. ICE admits, and the law is clear, that ICE detainers are voluntary

23 requests, and neither legally require, nor purport to legally require, that a person

24 be held against their will on that basis. Defendants knew or should have known

25 that an ICE detainer was nothing more than a voluntary request and was not a

26 lawful basis to detain someone after they became otherwise entitled to release,

27 including release on bail; that, in 2010, ICE submitted communications to

28 Congress explaining that ICE holds are voluntary requests; that ICE had an office

45

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1 in LASD where inquiries about ICE’s view of their authority was readily

2 available; that the ICE detention forms on their face were requests and not orders

3 or mandatory detainers; that the relevant federal regulations state that an ICE

4 detainer is a “request”; and that an ICE detainer was not accompanied by a

5 judicial warrant or judicial determination of probable cause.

6

200. As a result of the foregoing unlawful data entries, when class

7 members became entitled to release from custody, they were not released, but

8 Defendants continued to hold them, including unlawfully holding them without a

9 warrant on the sole authority of the ICE detainer for more than 48 hours without

10 bringing them before a judicial officer for a determination of probable cause.

11 Separate from the predicate acts described previously, this failure a) violated their

12 Fourth Amendment right to be released, b) alternatively violated their due process

13 right to be released, and c) violated their right to be released pursuant to Penal

14 Code §§ 1384 and 3000(b)(2)(A).

15 XV. NINTH CAUSE OF ACTION: CIVIL CODE § 52.1 – VIOLATION OF

16

RIGHT TO RELEASE ON BAIL

17

201. Plaintiffs incorporate the allegations of the preceding and subsequent

18 paragraphs as if fully set forth herein.

19

202. Defendants engaged in coercive acts that separately and independently

20 interfered with or attempted to interfere with the rights of Plaintiffs and Damages

21 Classes Two, Four, and Six to be released on bail when they were entitled to such

22 release, in violation of their right to bail under Cal. Const. Article 1 § 12 (“a

23 person shall be released on bail by sufficient sureties” except for capital crimes

24 and certain felonies after court determination based on clear and convincing

25 evidence” that bail should be denied) and Penal Code § 1296(b)(g) (establishing a

26 jailer’s mandatory duty to release a person upon posting of bail).

27

203. For purposes of this cause of action, and any other claims pursuant to

28 Cal. Civil Code § 52.1, the phrase “class members” refers collectively to members

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1 of any of Classes Two, Four and Six.

2

204. LASD’s record-keeping practices with regard to ICE holds constitute

3 coercion that is separate and independent from the violation of class members’

4 rights to be released on bail. While class members were in the custody of LASD,

5 Defendants recorded ICE detainers in their electronic record systems as

6 mandatory holds, treating such detainers as a valid, lawful basis to deny release,

7 including to release on bail, even though LASD knew or should have known that

8 an ICE detainer was nothing more than a voluntary request, and provided no

9 lawful basis to detain someone. Defendants routinely entered into their data

10 systems that persons with an ICE detainer were “No Bail” inmates even though

11 they otherwise qualified for release on bail.

12

205. LASD’s practice of characterizing and recording ICE detainers as

13 mandatory holds was both unlawful and coercive. It was unlawful because the

14 detainers provided no lawful basis for detention. It was coercive because it falsely

15 communicated to employees and agents that ICE holds authorized and required

16 class members to be detained. This misrepresentation initiated various unlawful

17 consequences, including over-detention, denial of the right to post bail and

18 exclusion from various alternatives to custody programs.

19

206. LASD’s coercive and unlawful record-keeping practices were

20 separate and independent from the consequences that flowed from this record

21 keeping: LASD’s failure to accept bail and release Plaintiffs and class members

22 on bail.

23

207. ICE admits, and the law is clear, that ICE detainers are voluntary

24 requests, and neither legally require, nor purport to legally require, that a person

25 be held against their will on that basis. Defendants knew or should have known

26 that an ICE detainer was nothing more than a voluntary request and was not a

27 lawful basis to detain someone after they became otherwise entitled to release,

28 including release on bail; that, in 2010, ICE submitted communications to

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1 Congress explaining that ICE holds are voluntary requests; that ICE had an office

2 in LASD where inquiries about ICE’s view of their authority was readily

3 available; that the ICE detention forms on their face were requests and not orders

4 or mandatory detainers; that the relevant federal regulations state that an ICE

5 detainer is a “request”; and that an ICE detainer was not accompanied by a

6 judicial warrant or judicial determination of probable cause.

7

208. As a result of the foregoing unlawful data entries, when class

8 members became entitled to release from custody on bail, they were not so

9 released, but Defendants continued to hold them. Separate from the predicate data

10 entry acts described previously this failure violated their Fourth and Fourteenth

11 Amendment rights to be released on bail.

12

209. As a further result of the foregoing unlawful data entries, class

13 members were effectively prevented from seeking the assistance of lawyers,

14 family members or bail bondsmen to procure their release, and thereby deprived

15 of their constitutional right to bail and their constitutional right to court redress.

16

210. As a further result of the foregoing unlawful data entries, bail

17 bondsmen were deterred, dissuaded or prevented from posting, agreeing to post,

18 or attempting to post, bail on class members’ behalf, thereby depriving class

19 members of their ability to post bail.

20 XVI. PRAYER FOR RELIEF

21

Wherefore, Plaintiffs respectfully request that the Court grant the following

22 relief:

23

(1) Enter a judgment declaring that Defendants’ refusal to allow inmates

24 admitted to bail under state law from posting bail due to the presence of an

25 immigration hold violated state and federal law;

26

(2) Issue an injunction ordering Defendants not to detain any individual

27 solely on the basis of the immigration hold;

28

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1

(3) In the alternative, issue an injunction ordering Defendants not to

2 detain any individual solely on the basis of the immigration hold beyond 48 hours

3 without a probable cause hearing;

4

(4) Enter a judgment declaring that Defendants’ detention of Plaintiffs

5 and other members of the proposed class solely on the immigration hold was and is

6 unauthorized by state and federal law;

7

(5) In the alternative, enter a judgment declaring that Defendants’

8 detention of Plaintiffs and other members of the proposed class solely on the

9 immigration hold beyond 48 hours without a probable cause hearing was and is

10 unauthorized by federal law;

11

(6) Award Plaintiff Duncan Roy individually compensatory damages

12 according to proof, or (to the extent applicable) up to treble his actual damages

13 pursuant to the provisions of the California Civil Code § 52(a), whichever is

14 greater;

15

(7) Award Plaintiffs Martinez-Perez and Alliksoo and members of the

16 proposed Damages Classes One, Three and Five general monetary damages on a

17 class wide basis for the time unlawfully spent in LASD custody and establish a

18 procedure for class members to seek individualized damages beyond general

19 damages;

20

(8) Award Plaintiffs Martinez-Perez and Alliksoo and members of the

21 proposed Damages Classes Two, Four and Six up to three times their general

22 monetary damages (to the extent applicable) on a class-wide basis for the time

23 unlawfully spent in LASD custody, or statutory damages of $4000 per violation,

24 whichever is greater, and establish a procedure for class members to seek

25 individualized damages beyond general damages;

26

(9) Award Plaintiffs and other members of the proposed class reasonable

27 attorneys’ fees and costs pursuant to 42 U.S.C. § 1988, CCP § 1021.5, and/or

28 California Civil Code §§ 52(b)(3), 52.1(h); and

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1

(10) Grant any other relief that this Court may deem fit and proper.

2 Dated: December 4, 2015

Respectfully submitted,

3

Kaye, McLane, Bednarski & Litt, LLP

4

5

By:_/s/ Barrett S. Litt___________

6

Barrett S. Litt

7

8

JURY DEMAND

9

Trial by jury of all issues is demanded.

10 Dated: December 4, 2015 11
12

Respectfully submitted, Kaye, McLane, Bednarski & Litt, LLP

13

By:_/s/ Barrett S. Litt___________

14

Barrett S. Litt

15

16

17

18

19

20

21

22

23

24

25

26

27

28

50

 
 Case 2:12-cv-09012-BRO-FFM Document 184 Filed 09/09/16 Page 1 of 42 Page ID #:2609

UNITED STATES DISTRICT COURT CENTRAL DISTRICT OF CALIFORNIA

LINK:

CIVIL MINUTES – GENERAL

Case No. Title

CV 12-09012-BRO (FFMx) CV 13-04416-BRO (FFMx)

Date September 9, 2016

DUNCAN ROY ET AL. V. COUNTY OF LOS ANGELES ET AL.

GERARDO GONZALEZ V. IMMIGRATION AND CUSTOMS ENFORCEMENT

ET AL.

Present: The Honorable BEVERLY REID O’CONNELL, United States District Judge

Anel Huerta

Not Present

N/A

Relief Deputy Clerk

Court Reporter

Tape No.

Attorneys Present for Plaintiffs:

Attorneys Present for Defendants:

Not Present

Not Present

Proceedings: (IN CHAMBERS)

ORDER RE PLAINTIFFS’ MOTIONS FOR CLASS CERTIFICATION [151, 152]

I. INTRODUCTION
Currently pending before the Court are Plaintiffs’ Motions for Class Certification.1 (See Dkt. Nos. 151, 152.) The Court has considered all of the papers filed in support of and in opposition to the instant motion as well as oral argument of counsel at the hearing held on August 29, 2016. For the reasons explained below, the Court GRANTS in part and DENIES in part Plaintiff’s Motion.

1 There are two Motions in this case: one arises from Duncan Roy et al. v. County of Los Angeles et al., No. 12-cv-09012-BRO-FFM, while the other arises from the related action Gonzalez v. Immigration & Customs Enforcement et al., No. 13-cv-04416-BRO-FFM. On July 28, 2015, the two cases were consolidated. (See Dkt. No. 91.)
The named Plaintiffs in the Roy action are Duncan Roy, Alain Martinez-Perez, Annika Alliksoo, and Clemente De La Cerda (the “Roy Plaintiffs”). (See Dkt. No. 125 (hereinafter, “Roy SAC”).) The named Plaintiffs in the Gonzalez action are Geraldo Gonzalez and Simon Chinivizyan (the “Gonzalez Plaintiffs”). (See Gonzalez, No. 13-cv-04416-BRO-FFM, ECF No. 44 (hereinafter, “Gonzalez TAC”).) Collectively, the Court will refer to these parties as “Plaintiffs.”
Defendants in the Roy action are the County of Los Angeles and Leroy Baca, the Sheriff of Los Angeles County (the “Roy Defendants”). (See Roy SAC ¶¶ 13–14.) Defendants in the Gonzalez action are Immigration and Customs Enforcement (“ICE”), Thomas Winkowski, Acting Director of ICE, David Marin, Acting Field Office Director for the Los Angeles District of ICE, and David Palmatier, the Unit Chief for the Law Enforcement Service Center of ICE (the “Gonzalez Defendants”). (See Gonzalez TAC ¶¶ 15–18.) Collectively, the Court will refer to these parties as “Defendants.”

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UNITED STATES DISTRICT COURT CENTRAL DISTRICT OF CALIFORNIA

LINK:

CIVIL MINUTES – GENERAL

Case No. Title

CV 12-09012-BRO (FFMx) CV 13-04416-BRO (FFMx)

Date September 9, 2016

DUNCAN ROY ET AL. V. COUNTY OF LOS ANGELES ET AL.

GERARDO GONZALEZ V. IMMIGRATION AND CUSTOMS ENFORCEMENT

ET AL.

II. BACKGROUND

A. Factual Background

1. The Roy Plaintiffs

Plaintiffs Duncan Roy, Alain Martinez-Perez, Annika Alliksoo, and Clemente De La Cerda are a group of individuals who were or are currently in the custody of the Los Angeles County Sheriff’s Department (“LASD”) and who were denied either bail or release from custody on the basis of an immigration hold. Duncan Roy (“Mr. Roy”) is a British citizen who the Roy Defendants allegedly detained for eighty-nine days pursuant to an immigration hold. (Roy SAC ¶ 9.) According to Mr. Roy, the Roy Defendants refused to allow him to post bail. (Id.) Alain Martinez-Perez (“Mr. Martinez-Perez”) is a Mexican citizen that the Roy Defendants detained for six days after they denied him bail even though the district attorney declined to file criminal charges. (Roy SAC ¶ 10.) Annika Alliksoo (“Ms. Alliksoo”) is an Estonian citizen who Defendants detained for a total of eighteen days and held for three days after a state court judge ordered Ms. Alliksoo’s release. (Roy SAC ¶ 11.) Clemente De La Cerda (“Mr. De La Cerda”) is a Mexican citizen and a lawful permanent resident. (Roy SAC ¶ 12.) As of the date of filing, Mr. De La Cerda was still in the LASD’s custody pursuant to an immigration hold. (Id.)
The Roy Plaintiffs initiated this putative class action on behalf of themselves and others similarly situated.2 Collectively, Plaintiffs challenge the legality of the LASD’s

2 On January 25, 2016, the parties stipulated to dismiss Mr. Roy’s claims. (See Dkt. No. 134.) Thus, Mr. Roy is no longer a party to this action. Mr. Martinez-Perez and Ms. Alliksoo seek damages on behalf of all individuals injured by the Roy Defendants’ practice of refusing bail requests and detaining individuals beyond the time permitted by state law. (Roy SAC ¶¶ 10, 11.) Mr. De La Cerda seeks equitable relief on behalf of all individuals who are currently or who will in the future be in Defendants’ custody on the basis of an immigration hold. (Roy SAC ¶ 12.) Specifically, he seeks to bar Defendants from detaining individuals beyond the time permitted by state law “solely on the basis of an immigration hold not supported by a probable cause determination.” (Id.)

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UNITED STATES DISTRICT COURT CENTRAL DISTRICT OF CALIFORNIA

LINK:

Case No. Title

CIVIL MINUTES – GENERAL

CV 12-09012-BRO (FFMx) CV 13-04416-BRO (FFMx)

Date September 9, 2016

DUNCAN ROY ET AL. V. COUNTY OF LOS ANGELES ET AL.

GERARDO GONZALEZ V. IMMIGRATION AND CUSTOMS ENFORCEMENT

ET AL.

practice of detaining individuals solely on the basis of immigration holds placed by ICE. (See Roy SAC.)

a. ICE Detainer Forms and Practices
In August 2009, LASD and ICE activated the “Secure Communities” program in Los Angeles County. (Roy SAC ¶ 18.) Under this program, LASD provides ICE with the fingerprints and booking information of every arrested individual during the booking process. (Id.) An agent in ICE’s Law Enforcement Support Center checks the fingerprints against ICE and Federal Bureau of Investigation databases. (Id.) If the reviewing agent with ICE’s Enforcement and Removal Operations Unit determines that ICE needs to take some action regarding a person detained, the agent provides LASD (or the local law enforcement agency) with a Form I-247, also referred to as an immigration or ICE detainer. (Roy SAC ¶ 19; see also Declaration of Lindsay Battles (Dkt. No. 1512) (hereinafter, “Battles Decl.”), Exs. B, C, Z.) Pursuant to 8 C.F.R. § 287.7(a), an immigration hold is intended to advise a law enforcement agency that the Department of Homeland Security (“DHS”) seeks to arrest or detain an alien in the agency’s custody. (Roy SAC ¶ 21.) The detainer form also requests that the agency detain the alien for an additional forty-eight hours beyond when the subject would otherwise have been released. (Roy SAC ¶ 22.) Immigration holds may be issued for various reasons, including: (1) if ICE has initiated an investigation to determine whether the person is subject to removal from the United States; (2) if removal proceedings have already been initiated; (3) if ICE has served a warrant of arrest for removal proceedings; or, (4) if ICE has obtained an order of deportation or removal from the United States for the subject. (Roy SAC ¶ 23.)

Since October 2010, ICE has used several different versions of the detainer form. (See Battles Decl., Exs. B, C, Z.) On the version dated August 2010, the form included a line that would allow detainer if an “[i]nvestigation has been initiated,” while the version dated December 2011 states that detainer is allowed only if ICE had “[i]nitiated an investigation.” (See Battles Decl., Exs. B, Z.) According to the Roy Plaintiffs, during the class period, ICE issued 21,179 detainers with the “initiated an investigation” box selected, and 2,911 detainers with no reason for detainment indicated at all. (See Battles Decl., Ex. BB.) In December 2012, two months after the Roy Plaintiffs initiated this

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UNITED STATES DISTRICT COURT CENTRAL DISTRICT OF CALIFORNIA

LINK:

CIVIL MINUTES – GENERAL

Case No. Title

CV 12-09012-BRO (FFMx) CV 13-04416-BRO (FFMx)

Date September 9, 2016

DUNCAN ROY ET AL. V. COUNTY OF LOS ANGELES ET AL.

GERARDO GONZALEZ V. IMMIGRATION AND CUSTOMS ENFORCEMENT

ET AL.

action, ICE revised the detainer form by removing the “initiated an investigation” option and instead adding an option stating that ICE has “[d]etermined that there is a reason to believe the individual is an alien subject to removal from the United States.” (See Battles Decl., Ex. C.)

From October 2010 until a new detainer form was introduced in 2015, the detainer form requested that the LASD detain an individual for up to forty-eight hours beyond the time that the individual would otherwise be eligible for release (excluding weekends and holidays). (See Battles Decl., Exs. B, C, Z.) In 2015, ICE revised its detainer form and created two different forms: the I-247D, for individuals with a higher enforcement priority, and the I-247X, for individuals with lower enforcement priority. (See Battles Decl., Exs. D, E.) These new detainer forms replaced the option which stated ICE had a “reason to believe” with the statement “probable cause exists that the subject is a removable alien.” (Id.) The new detainer forms still request forty-eight hours of additional detention, but no longer exclude weekends and holidays. (Id.) Additionally, during the class period, only nineteen percent of all of the ICE detainer forms that LASD received were supported by a final order of removal, and only 0.5% were supported by the initiation of removal proceedings. (See Battles Decl. ¶ 3.)

The Roy Plaintiffs challenge two of the LASD’s practices related to immigration holds. First, they assert that the LASD has engaged in a pattern and practice of unlawfully denying bail to inmates who were subject to an immigration hold, thereby preventing these individuals from securing their release. (See Roy SAC ¶¶ 47–55.) Second, Plaintiffs challenge the LASD’s practice of detaining individuals solely on the basis of an immigration hold and beyond the time or authority permitted under state law to hold an inmate in custody. (Roy SAC ¶¶ 57–60.)

b. Bail Practices

According to the Roy Plaintiffs, from October 2010 to October 2012, LASD’s policy was to deny inmates with immigration detainers the ability to post bail. (See Roy SAC ¶¶ 47–56; see also Declaration of Xanadu Copo (Dkt. No. 151-34); Declaration of Emilia Flores (Dkt. No. 151-35); Declaration of Alejandro Delgado (Dkt. No. 151-36); Declaration of Mike Gradilla (Dkt. No. 151-37); Declaration of Alec Rose (Dkt. No. 151-

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UNITED STATES DISTRICT COURT CENTRAL DISTRICT OF CALIFORNIA

LINK:

CIVIL MINUTES – GENERAL

Case No. Title

CV 12-09012-BRO (FFMx) CV 13-04416-BRO (FFMx)

Date September 9, 2016

DUNCAN ROY ET AL. V. COUNTY OF LOS ANGELES ET AL.

GERARDO GONZALEZ V. IMMIGRATION AND CUSTOMS ENFORCEMENT

ET AL.

38); Declaration of Brendan Hamme (Dkt. No. 151-39); Declaration of James Kallas (Dkt. No. 151-40); Declaration of Lauro Jiminez (Dkt. No. 151-41); Declaration of Morris DeMayo (Dkt. No. 151-43); Declaration of Rocio Ramirez (Dkt. No. 151-44).) LASD would mark immigration detainers in the electronic jail booking system as “no bail” holds. (See Battles Decl., Ex. L (hereinafter, “Sivard Dep.”) at 116:15–116:20; see also Battles Decl., Exs. T, U.) Shortly before this litigation commenced, LASD voluntarily changed its policy to allow individuals on immigration detainer to post bail. (See Battles Decl., Ex. V.) Further, while LASD policy was not to book anyone into jail for whom bail was set at less than $25,000, until June 2014, this policy did not apply to those with immigration detainers issued against them. (See Battles Decl., Ex. N; see also Battles Decl., Ex. S (hereinafter, “Sivard Rule 30 Dep.”) at 77:17–79:7.)

c. Arrest and Detention Based on Immigration Retainers

According to the Roy Plaintiffs, from October 2010 to June 2014, LASD’s policy was to comply with ICE’s issued immigration detainers and to detain individuals for up to forty-eight hours beyond the time they were eligible for release (excluding weekends and holidays). (See Battles Decl., Exs. F–K; see also Sivard Dep. at 66:13–66:18.) At the time, LASD recorded immigration detainers in its Automated Jail Information System (“AJIS”), which made the detainers visible to the public and the jail staff through its “inmate locator.” (See Sivard Dep. at 32:16–33:5.) The Roy Plaintiffs allege that LASD characterized detainers as mandatory holds within its electronic data systems, although LASD knew (or should have known) that detainers are actually voluntary administrative requests. (See Roy SAC ¶¶ 31–37.) LASD complied with all immigration detainers, treating them as mandatory. (See Roy SAC ¶ 17; see also Battles Decl., Ex. M.) In March 2014, however, LASD took steps, pursuant to California Government Code section 7282.5(a), to limit the circumstances in which it would honor immigration detainers. (See Battles Decl., Ex. F.) Further, in June 2014, LASD voluntarily adopted policies in order to reduce the detention time of an individual on an immigration detainer and to enable an individual’s transfer to ICE without extending the detention beyond the time the individual would otherwise be eligible for release. (See Battles Decl., Exs. J, K.) Additionally, in June 2014, LASD stopped recording immigration detainers in AJIS and began keeping only a paper copy of the detainer in the inmate’s file. (See Battles Decl., Ex. J; see also Sivard Dep. at 29:3–29:15.)

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UNITED STATES DISTRICT COURT CENTRAL DISTRICT OF CALIFORNIA

LINK:

CIVIL MINUTES – GENERAL

Case No. Title

CV 12-09012-BRO (FFMx) CV 13-04416-BRO (FFMx)

Date September 9, 2016

DUNCAN ROY ET AL. V. COUNTY OF LOS ANGELES ET AL.

GERARDO GONZALEZ V. IMMIGRATION AND CUSTOMS ENFORCEMENT

ET AL.

The Roy Plaintiffs aver that during the class period, LASD never had a policy of bringing people held on ICE detainers before a judge for a probable cause determination while in LASD’s custody despite maintaining procedures for ensuring other inmates held on warrantless arrests would be released within forty-eight hours. (See Sivard Dep. at 159:13–160:6; see also Sivard Rule 30 Dep. at 69:3–72:6.) Further, according to the Roy Plaintiffs, this was done even though ICE did not provide detainees with a probable cause hearing within forty-eight hours of being transferred to ICE custody. (See Battles Decl., Ex. O.) Accordingly, LASD had no way to ensure individuals detained pursuant to an immigration detainer were not over-retained. (See Sivard Dep. at 65:6–66:8; Sivard Rule 30 Dep. at 76:24–77:16; see also Battles Decl., Ex. R at 138:16–139:22, 234:2–235:14.)

2. Plaintiffs Gonzalez and Chinivizyan’s Related Action

Plaintiffs Gerardo Gonzalez, Jr. (“Mr. Gonzalez”) and Simon Chinivizyan (“Mr. Chinivizyan”) bring a related action on behalf of themselves and those similarly situated. (See Gonzalez TAC.) The Gonzalez Plaintiffs also challenge ICE’s detainer form (Form I-247). (Gonzalez TAC ¶ 19.) The Gonzalez Plaintiffs allege that the detainer forms issued against them were unlawful because: (1) ICE did not assess whether they were likely to escape before an administrative warrant could be obtained prior to issuing their detainers; and, (2) ICE requested their detention without requiring a judicial probable cause determination either before or promptly after the initiation of a warrantless arrest based on the detainers. (See Dkt. No. 152 (hereinafter, “Gonzalez Mot.”) at 2; Declaration of Lindsay Battles (Dkt. No. 152-3) (hereinafter, “Battles Decl. II”), Ex. F at 3–5; see also Battles Decl. II, Ex. G (hereinafter, “Rapp Dep.”) at 164:8–168:20, 174:4– 174:13; Declaration of Jessica Karp Bansal (hereinafter, “Bansal Decl.”), Ex. 1 (hereinafter, “Hamm Dep.”) at 57:1–57:10, 58:19–58:21, 92:10–92:15, 269:19–270:1.) Additionally, Mr. Gonzalez alleges that his detainer was unlawful, because ICE determined whether there was probable cause for his detainment based on information it kept in electronic databases, rather than through a personal interview with him. (See Gonzalez Mot. at 2; see also Battles Decl., Ex. H (hereinafter, “San Martin Dep.”) at 37:13–37:23.)

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UNITED STATES DISTRICT COURT CENTRAL DISTRICT OF CALIFORNIA

LINK:

CIVIL MINUTES – GENERAL

Case No. Title

CV 12-09012-BRO (FFMx) CV 13-04416-BRO (FFMx)

Date September 9, 2016

DUNCAN ROY ET AL. V. COUNTY OF LOS ANGELES ET AL.

GERARDO GONZALEZ V. IMMIGRATION AND CUSTOMS ENFORCEMENT

ET AL.

a. Issuance of Detainers Without Probable Cause

According to the evidence proffered by the Gonzalez Plaintiffs’, ICE issues a “significant percentage” (approximately seventy percent) of its detainers relying only on electronic database checks to determine whether there is probable cause for detainment. (See Bansal Decl., Ex. 2 (hereinafter, “Schichel Dep.”) at 68:11–69:7, 125:7–126:9, 128:9–130:19, 137:16–138:20, 140:12–142:14, 143:8–144:20, 145:24–147:3, 150:13– 19.; see also Bansal Decl., Ex. 3; Hamm Dep. at 44:1–45:1, 92:2–92:9; 192:10–192:14, 266:22–266:25; Rapp Dep. at 83:19–83:23, 166:13–163:20, 186:12–188:1.) The Gonzalez Plaintiffs allege that allowing ICE officers to issue detainers based only on information within an electronic database is unlawful for several reasons. First, though ICE’s general policy is to advise officers that certain evidence is a “red flag” that an individual might be a United States citizen (and thus is not subject to removal), most of these red flags cannot be detected or investigated through database checks. (See Bansal Decl., Ex. 4; Battles Decl. II, Ex. I.) Second, the databases on which ICE relies are outdated and not updated properly in “[t]hree out of ten cases.” (See Hamm Dep. at 219:17–221:8; Battles Decl., Ex. K at 192:12–194:14.)

Third, the Gonzalez Plaintiffs allege that when reviewing database information, ICE has a policy or practice of placing detainers on individuals despite the electronic databases revealing either no or inconclusive evidence indicating that the individual is subject to removal. (See Gonzalez Mot. at 4–5.) For instance, ICE issues detainers against individuals based only on a lack of records in the DHS databases. These detainers are issued with an indication that a person may be foreign born and are labeled “Foreign Born-No Match.” (See Rapp Dep. at 148:19–149:19; Battles Decl. II, Ex. O; see also Schichel Dep. at 195:17–196:3.) According to the Gonzalez Plaintiffs, the issue with this practice is that no one born in the United States will appear in DHS databases, and may thus be subject to detainment. (See Battles Decl. II, Ex. N at 98:11–99:4.)

b. Issuance of Detainers Without Determining Likelihood of Escape

Next, the Gonzalez Plaintiffs allege that ICE issues detainers without making a determination whether the individual is likely to escape before an administrative warrant

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LINK:

CIVIL MINUTES – GENERAL

Case No. Title

CV 12-09012-BRO (FFMx) CV 13-04416-BRO (FFMx)

Date September 9, 2016

DUNCAN ROY ET AL. V. COUNTY OF LOS ANGELES ET AL.

GERARDO GONZALEZ V. IMMIGRATION AND CUSTOMS ENFORCEMENT

ET AL.

could be issued in violation of 8 U.S.C. § 1357(a)(2). (See Hamm Dep. at 58:19–58:21, 269:3–270:1; Rapp Dep. at 166:24–168:20.) However, detainers are issued against those already in the custody of another agency, making them, by definition, unlikely to escape. (Gonzalez Mot. at 6.)

c. Issuance of Detainers Without a Prompt Judicial Determination of Probable Cause

Third, the Gonzalez Plaintiffs claim that ICE’s policy of issuing detainers without providing a prompt judicial probable cause determination violates the Fourth Amendment. (Gonzalez Mot. at 7.) No judicial officer (including an immigration judge) reviews ICE detainers either before or promptly after they are issued. (See Battles Decl., Ex. F at 4–5.) The Gonzalez Plaintiffs allege that this practice violates the Supreme Court’s requirement of a prompt judicial determination of probable cause as outlined in Gerstein v. Pugh, 420 U.S. 103 (1975), and County of Riverside v. McLaughlin, 500 U.S. 44 (1991). (Gonzalez Mot. at 7–8.)

III. PROCEDURAL HISTORY

A. The Roy Action

The Roy Plaintiffs filed their initial complaint on October 19, 2012, alleging that the LASD’s practices constitute false imprisonment and negligence per se, and violate the Fourth and Fourteenth Amendments under 42 U.S.C. § 1983, the California Constitution, article I, sections 7 and 13, California Government Code sections 815.2, 815.6, and the Tom Bane Civil Rights Act, California Civil Code section 52.1. (Dkt. No. 1.)
On June 8, 2015, the Roy Defendants filed a Motion for Judgment on the Pleadings, (Dkt. No. 71), which the Court granted in part and denied in part on July 9, 2015, (Dkt. No. 88). Also on June 8, 2015, the Roy Defendants filed a Motion to Consolidate this case with the Gonzalez Plaintiffs’ action, (see Dkt. No. 72), which the Court granted on July 28, 2015, (Dkt. No. 91). On August 24, 2015, the Roy Plaintiffs filed a Motion Seeking Leave to Amend the Scheduling Order and to Amend the Pleadings, (see Dkt. No. 96), which the Court granted in part and denied in part, (Dkt.

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LINK:

CIVIL MINUTES – GENERAL

Case No. Title

CV 12-09012-BRO (FFMx) CV 13-04416-BRO (FFMx)

Date September 9, 2016

DUNCAN ROY ET AL. V. COUNTY OF LOS ANGELES ET AL.

GERARDO GONZALEZ V. IMMIGRATION AND CUSTOMS ENFORCEMENT

ET AL.

No. 107). On October 2, 2015, the Roy Plaintiffs filed their First Amended Complaint. (Dkt. No. 109.) On October 26, 2015, the Roy Defendants filed a Motion to Dismiss and to Strike two paragraphs from the Roy Plaintiffs’ First Amended Complaint. (Dkt. No. 112.) The Court granted the Roy Defendants’ Motion to Dismiss in part and denied it in part and granted the Motion to Strike. (Dkt. No. 124.) On December 7, 2015, the Roy Plaintiffs filed their Second Amended Complaint. (Dkt. No. 125.) The Roy Defendants filed their Answer to the Second Amended Complaint on December 22, 2015. (Dkt. No. 129.)

B. The Gonzalez Action

Mr. Gonzalez filed his initial Complaint on June 19, 2013. (Gonzalez, No. 13-cv04416-BRO-FFM, ECF No. 1.) On July 10, 2013, Gonzalez filed a First Amended Complaint, which added Mr. Chinivizyan as a named Plaintiff. (Gonzalez, No. 13-cv04416-BRO-FFM, ECF No. 10.) After the Court granted the Gonzalez Plaintiffs leave to amend the complaint further, they filed a Second Amended Complaint on September 9, 2013. (Gonzalez, No. 13-cv-04416-BRO-FFM, ECF No. 24.) On July 28, 2014, the Court granted the Gonzalez Defendants’ Motion to Dismiss Plaintiffs’ Second Amended Complaint and granted the Gonzalez Plaintiffs leave to amend. (Gonzalez, No. 13-cv04416-BRO-FFM, ECF No. 42.)

The Gonzalez Plaintiffs filed a Third Amended Complaint on August 18, 2014. (Gonzalez, No. 13-cv-04416-BRO-FFM, ECF No. 44.) The same day, they also moved for class certification. (Dkt. No. 45.) On September 15, 2014, the Gonzalez Defendants filed a Motion to Dismiss for Lack of Jurisdiction. (Gonzalez, No. 13-cv-04416-BROFFM, ECF No. 53.) On October 24, 2014, the Court granted the Gonzalez Defendants’ Motion in part. (Gonzalez, No. 13-cv-04416-BRO-FFM, ECF No. 61.) On February 4, 2015, the Gonzalez Defendants filed their Answer to the Third Amended Complaint. (Gonzalez, No. 13-cv-04416-BRO-FFM, ECF No. 73.) On June 8, 2015, the Roy Defendants filed a Motion to Consolidate the two cases, which the Court granted on July 28, 2015. (Gonzalez, No. 13-cv-04416-BRO-FFM, ECF Nos. 88, 95.)

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UNITED STATES DISTRICT COURT

CENTRAL DISTRICT OF CALIFORNIA

CIVIL MINUTES – GENERAL

Case No. Title

CV 12-09012-BRO (FFMx) CV 13-04416-BRO (FFMx)

Date September 9, 2016

DUNCAN ROY ET AL. V. COUNTY OF LOS ANGELES ET AL.

GERARDO GONZALEZ V. IMMIGRATION AND CUSTOMS ENFORCEMENT

ET AL.

C. Combined Proceedings

On May 9, 2016, both the Roy and the Gonzalez Plaintiffs brought the instant Motions for Class Certification. (Dkt. No. 151 (hereinafter, “Roy Mot.”); Gonzalez Mot.) On June 28, 2016, the Roy Defendants timely filed their Opposition, (Dkt. No. 165 (hereinafter, “Roy Opp’n”)), and the Gonzalez Defendants filed their Opposition and a Corrected Opposition, (Dkt. Nos. 163, 164 (hereinafter, “Gonzalez Opp’n”)). On July 22, 2016, the Roy and Gonzalez Plaintiffs timely replied. (Dkt. Nos. 169 (hereinafter, “Roy Reply”), 172 (hereinafter, “Gonzalez Reply”).)

The Roy Plaintiffs move to certify two classes seeking equitable relief pursuant to Federal Rule of Civil Procedure 23(b)(2), and four classes and two subclasses seeking damages pursuant to Rule 23(b)(3). The classes and their definitions are as follows:

(1) False Imprisonment Equitable Relief Class: All LASD inmates detained beyond the time they are due for release from criminal custody, solely on the basis of immigration detainers, excluding inmates who have a final order of removal as indicated on the face of the detainer.
(2) Gerstein Equitable Relief Class3: All LASD inmates detained beyond the time they are due for release from criminal custody, solely on the basis of immigration detainers, excluding inmates who have a final order of removal or ongoing removal proceedings as indicated on the face of the detainer.

(3) False Imprisonment Damages Class: All LASD inmates who were detained beyond the time they are due for release from criminal custody, solely on the basis of immigration detainers, excluding inmates who had a final order of removal as indicated on the face of the detainer. Specifically, the class seeks

3 The Court will refer to Classes 1 and 2 collectively as the “Equitable Relief Classes.”

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UNITED STATES DISTRICT COURT

CENTRAL DISTRICT OF CALIFORNIA

CIVIL MINUTES – GENERAL

Case No. Title

CV 12-09012-BRO (FFMx) CV 13-04416-BRO (FFMx)

Date September 9, 2016

DUNCAN ROY ET AL. V. COUNTY OF LOS ANGELES ET AL.

GERARDO GONZALEZ V. IMMIGRATION AND CUSTOMS ENFORCEMENT

ET AL.

damages from those who were detained between November 7, 2011, and the present.4

(4) Gerstein Damages Class: All LASD inmates who were detained beyond the time they are due for release from criminal custody, solely on the basis of immigration detainers, excluding inmates who had a final order of removal or were subject to ongoing removal proceedings as indicated on the face of the detainer. Specifically, the class seeks damages pursuant to federal law from October 19, 2010, to the present, and under California state law from November 7, 2011, to June 5, 2014.

(5) Post-48-Hours Gerstein Subclass: All LASD inmates who were detained for more than forty-eight hours beyond the time they were due for release from criminal custody, based solely on immigration detainers, excluding inmates who had a final order of removal or were subject to ongoing removal proceedings as indicated on the face of the immigration detainer. Specifically, the class seeks damages pursuant to federal law from October 19, 2010, to the present, and under California state law from November 7, 2011, to June 5, 2014.

(6) Investigative Detainer Class: All LASD inmates who were detained beyond the time they were due for release from criminal custody based solely on “investigative detainers.” Specifically, the class seeks damages pursuant to federal law from October 19, 2010, to the present, and under California state law from November 7, 2011, to June 5, 2014.

(7) No-Bail Notation Class: All LASD inmates on whom an immigration detainer had been lodged and recorded in LASD’s AJIS database, and who were held on charges for which they would have been eligible to post bail. Specifically, the

4 Each of the Roy Plaintiffs’ proposed damages classes includes a subclass based on the same conduct but relying on California Civil Code section 52.1 rather than federal law. The Roy Defendants do not challenge the state law subclasses separately from the federal class, thus the Court will address the proposed classes synonymously.

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UNITED STATES DISTRICT COURT

CENTRAL DISTRICT OF CALIFORNIA

CIVIL MINUTES – GENERAL

Case No. Title

CV 12-09012-BRO (FFMx) CV 13-04416-BRO (FFMx)

Date September 9, 2016

DUNCAN ROY ET AL. V. COUNTY OF LOS ANGELES ET AL.

GERARDO GONZALEZ V. IMMIGRATION AND CUSTOMS ENFORCEMENT

ET AL.

class seeks damages pursuant to federal law from October 19, 2010, to October 18, 2012, and under California state law from November 7, 2011, to October 18, 2012.
(8) No-Money Bail Subclass5: All LASD inmates on whom an immigration detainer had been lodged, who would otherwise have been subject to LASD’s policy of rejecting for booking misdemeanor defendants with a bail amount of less than $25,000 (including Order of Own Recognizance). Specifically, the class seeks damages pursuant to federal law from October 19, 2010, until when the practice ended, and under California state law from November 7, 2011, to the earlier of when the practice ended or June 5, 2014.

(See Roy Mot. at 16–18.)

The Gonzalez Plaintiffs move to certify one class and two subclasses seeking equitable relief pursuant to Rule 23(b)(2):

(1) Judicial Determination Class: All current and future persons who are subject to an immigration detainer issued by an ICE agent located in the Central District of California, where the detainer is not based upon a final order of removal signed by an immigration judge or the individual is not subject to ongoing removal proceedings. Plaintiffs proposed Judicial Determination Class will seek rescission of class members’ detainers and a declaration that Defendants’ issuance of detainers against class members without providing a judicial determination of probable cause violates the Fourth Amendment.

(2) Probable Cause Subclass: All members of the Judicial Determination Class for whom ICE has issued an immigration detainer based solely on checks for the individual in government databases. The Probable Cause Subclass, to which Plaintiff Gonzalez belongs will seek rescission of subclass members’ detainers and a declaration that Defendants’ issuance of detainers against

5 The Court will refer to Classes/Subclasses three through eight collectively as the “Damages Classes.”

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UNITED STATES DISTRICT COURT

CENTRAL DISTRICT OF CALIFORNIA

Case No. Title

CIVIL MINUTES – GENERAL

CV 12-09012-BRO (FFMx) CV 13-04416-BRO (FFMx)

Date September 9, 2016

DUNCAN ROY ET AL. V. COUNTY OF LOS ANGELES ET AL.

GERARDO GONZALEZ V. IMMIGRATION AND CUSTOMS ENFORCEMENT

ET AL.

subclass members in reliance on database checks alone violates the Fourth Amendment.

(3) Statutory Subclass: All members of the Judicial Determination Class for whom ICE did not issue an administrative warrant of arrest at the time it issued an immigration detainer. The Statutory Subclass, to which both Plaintiffs belong, will seek rescission of subclass members’ detainers and a declaration that Defendants’ issuance of detainers against subclass members without making an individualized determination that the individual is likely to escape before a warrant can be obtained for his arrest violates 8 U.S.C. § 1357(a)(2).

(See Gonzalez Mot. at 10–11.)

IV. EVIDENTIARY OBJECTIONS

The Roy Defendants raise evidentiary objections to some of the statements in and exhibits attached to a number of the declarations included with the Roy Plaintiffs’ Motion. (See Dkt. No. 166 (hereinafter, “Roy Defs.’ Objs.”).) First, they object to the Declaration of Lindsay Battles and attached Exhibits A, F, K, O, P, Q, T, and BB, and portions of the Declarations of Barry Litt, Mr. Martinez-Perez, and Ms. Alliksoo on various grounds, including lack of foundation, lack of authentication, and hearsay. (See id.)

The Court may “consider inadmissible evidence in deciding whether it is appropriate to certify a class.” In re ConAgra Foods, Inc., 90 F. Supp. 3d 919, 965 n.147 (C.D. Cal. 2015) (“Since a motion for class certification is a preliminary procedure, courts do not require strict adherence to the Federal Rules of Civil Procedure or the Federal Rules of Evidence. . . . At the class certification stage, the court makes no findings of fact and announces no ultimate conclusions on Plaintiffs’ claims.” (internal quotations omitted)); accord Waine-Golston v. Time Warner Entm’t-Advance/New House P’ship, No. 11cv1057–GPB(RBB), 2012 WL 6591610, at *9 (S.D. Cal. Dec. 18, 2012) (“Since a motion to certify a class is a preliminary procedure, courts do not require strict adherence to the Federal Rules of Civil Procedure or the Federal Rules of Evidence.” (citing Eisen v. Carlisle & Jacquelin, 417 U.S. 156, 178 (1974) (explaining that the class

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UNITED STATES DISTRICT COURT

CENTRAL DISTRICT OF CALIFORNIA

Case No. Title

CIVIL MINUTES – GENERAL

CV 12-09012-BRO (FFMx) CV 13-04416-BRO (FFMx)

Date September 9, 2016

DUNCAN ROY ET AL. V. COUNTY OF LOS ANGELES ET AL.

GERARDO GONZALEZ V. IMMIGRATION AND CUSTOMS ENFORCEMENT

ET AL.

certification procedure “is not accompanied by the traditional rules and procedures applicable to civil trials”))); Keilholtz v. Lennox Hearth Prods., Inc., 268 F.R.D. 330, 337 n.3 (N.D. Cal. 2010) (“On a motion for class certification, the Court may consider evidence that may not be admissible at trial.”). Accordingly, the Court OVERRULES the Roy Defendants’ objections for the limited purpose of this Motion for Class Certification.

Next, the Roy Defendants object to the Declarations of Aurelio Lopez Rodriguez, Xanadu Copo, Emilia Flores, Alejandro Delgado, Mike Gradilla, Alec Rose, Brendan Hamme, James Kallas, Melissa Keaney, Morris DeMayo, and Rocio Ramirez on the grounds that the identities of these declarants were not disclosed pursuant to Federal Rule of Civil Procedure 26(a). (See Roy Defs.’ Objs.) Pursuant to Rule 37(c), the court may exclude or refuse to rely on any witness who a party fails to disclose in accordance with Rule 26(a). See Fed. R. Civ. P. 37(c). However, the Roy Defendants were provided with these declarations on May 9, 2016, when the Roy Plaintiffs filed the instant Motion. (See Roy Mot.) Though the Roy Defendants have had more than three months to seek additional time to depose or cross-examine the undisclosed witnesses, they have failed to do so. Therefore, the Court finds that exclusion of this testimony is not necessary, because the Roy Defendants were apparently not significantly harmed by the Roy Plaintiffs’ failure to disclose. See Carrillo v. B & J Andrews Enters., LLC, 2013 WL 394207, at *8 (D. Nev. Jan. 29, 2013) (“[T]he failure to disclose, under the circumstances is not so harmful that it necessitates total preclusion.”).

V. LEGAL STANDARD

A party seeking class certification bears the burden of establishing that the prospective class satisfies each requirement of Federal Rule of Civil Procedure 23(a) and at least one of the requirements of Rule 23(b). Zinser v. Accufix Research Inst., Inc., 253 F.3d 1180, 1186 (9th Cir. 2001).

Under Rule 23(a), the party seeking certification must establish all four of the following: (1) numerosity; (2) commonality; (3) typicality; and, (4) adequacy of representation. Fed. R. Civ. P. 23(a). This requires proof that:

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UNITED STATES DISTRICT COURT

CENTRAL DISTRICT OF CALIFORNIA

Case No. Title

CIVIL MINUTES – GENERAL

CV 12-09012-BRO (FFMx) CV 13-04416-BRO (FFMx)

Date September 9, 2016

DUNCAN ROY ET AL. V. COUNTY OF LOS ANGELES ET AL.

GERARDO GONZALEZ V. IMMIGRATION AND CUSTOMS ENFORCEMENT

ET AL.

(1) the class is so numerous that joinder of all members is impracticable; (2) there are questions of law or fact common to the class; (3) the claims or defenses of the representative parties are typical of the claims or defenses of the class; and (4) the representative parties will fairly and adequately protect the interests of the class.

Id.; accord Wal-Mart Stores, Inc. v. Dukes, 564 U.S. 338, 345 (2011). Certification should be granted only if, “after a rigorous analysis,” the court determines that the prospective class satisfies the requirements of Rule 23(a). Wal-Mart Stores, 564 U.S. at 350–51 (internal quotation marks omitted) (quoting Gen. Tel. Co. of Sw. v. Falcon, 457 U.S. 147, 161 (1982)).

The same principles apply to a Rule 23(b) analysis. See Comcast Corp. v. Behrend, 133 S. Ct. 1426, 1432 (2013). Under Rule 23(b)(2), “[c]lass certification . . . is appropriate only where the primary relief sought is declaratory or injunctive.” Zinser, 253 F.3d at 1195. A 23(b)(2) class should be certified only if “the party opposing the class has acted or refused to act on ground generally applicable to the class, thereby making appropriate final injunctive relief or corresponding declaratory relief with respect to the class as a whole.” Fed. R. Civ. P. 23(b)(2).

Under Rule 23(b)(3), the representative of the putative class must establish that: (1) common questions “predominate over any questions affecting only individual members”; and, (2) class resolution is “superior to other available methods for the fair and efficient adjudication of the controversy.” Amchem Prods., Inc. v. Windsor, 521 U.S. 591, 615 (1997) (internal quotation marks omitted).

When reviewing motions for class certification, district courts generally are bound to take the substantive allegations of the complaint as true. In re Coordinated Pretrial Proceedings in Petroleum Prods. Antitrust Litig., 691 F.2d 1335, 1342 (9th Cir. 1982) (citing Blackie v. Barrack, 524 F.2d 891, 901 n.7 (9th Cir. 1975)). But “Rule 23 does not set forth a mere pleading standard. A party seeking class certification must affirmatively demonstrate his compliance with the Rule.” Wal-Mart Stores, 564 U.S. at 350. Thus, “sometimes it may be necessary for the court to probe behind the pleadings before coming to rest on the certification question.” Id. (quoting Falcon, 457 U.S. at 161)

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UNITED STATES DISTRICT COURT

CENTRAL DISTRICT OF CALIFORNIA

Case No. Title

CIVIL MINUTES – GENERAL

CV 12-09012-BRO (FFMx) CV 13-04416-BRO (FFMx)

Date September 9, 2016

DUNCAN ROY ET AL. V. COUNTY OF LOS ANGELES ET AL.

GERARDO GONZALEZ V. IMMIGRATION AND CUSTOMS ENFORCEMENT

ET AL.

(internal quotation marks omitted). Further, district courts may, however, “resolve any factual disputes necessary to determine whether” a plaintiff’s claims meet the Rule 23 criteria. Ellis v. Costco Wholesale Corp., 657 F.3d 970, 983 (9th Cir. 2011) (noting a factual dispute regarding commonality and holding that the court is “required to resolve any factual disputes necessary to determine whether there was a common pattern and practice that could affect the class as a whole”). Ultimately, district courts have “broad discretion to determine whether a class should be certified and to revisit that certification throughout the legal proceedings before the court.” United Steel, Paper & Forestry, Rubber, Mfg. Energy, Allied Indus. & Serv. Workers Int’l Union, AFL-CIO, CLC v. ConocoPhillips Co., 593 F.3d 802, 810 (9th Cir. 2010).

VI. DISCUSSION

A. Whether Plaintiffs Have Met the Requirements of Rule 23(a)

1. Whether the Roy Plaintiffs’ Equitable Relief Claims Are Moot

As an initial matter, the Roy Defendants argue that the Roy Plaintiffs’ Equitable Relief Classes cannot be certified because the claims seeking equitable relief are mooted by LASD’s current policies. (See Roy Opp’n at 2.) As the Roy Plaintiffs admit, since June 2014, LASD has adopted policies that reduce the time that LASD detains an individual with an immigration detainer and enables LASD to transfer the individual to ICE without extending a person’s detention beyond the time they are eligible for release. (Roy Mot. at 4; see Declaration of Justin W. Clark (Dkt. No. 167) (hereinafter, “Clark Decl.”), Ex. A (hereinafter, “Defs.’ Sivard Dep.”) at 179:1–179:9; see also Clark Decl., Exs. B at 121:5–121:10, C at 217:22–218:22.)

“The voluntary cessation of challenged conduct does not ordinarily render a case moot because a dismissal for mootness would permit a resumption of the challenged conduct as soon as the case is dismissed.” Knox v. Serv. Emps. Int’l Union, Local 1000, 132 S. Ct. 2277, 2287 (2012). “The standard for determining whether a defendant’s voluntary conduct moots a case is ‘stringent: A case might become moot if subsequent events made it absolutely clear that the allegedly wrongful behavior could not reasonably be expected to recur.’” Bell v. City of Boise, 709 F.3d 890, 898 (9th Cir. 2013) (quoting

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UNITED STATES DISTRICT COURT

CENTRAL DISTRICT OF CALIFORNIA

CIVIL MINUTES – GENERAL

Case No. Title

CV 12-09012-BRO (FFMx) CV 13-04416-BRO (FFMx)

Date September 9, 2016

DUNCAN ROY ET AL. V. COUNTY OF LOS ANGELES ET AL.

GERARDO GONZALEZ V. IMMIGRATION AND CUSTOMS ENFORCEMENT

ET AL.

Friends of the Earth, Inc. v. Laidlaw Envtl. Servs. (TOC), Inc., 528 U.S. 167, 189 (2000)). The party asserting mootness bears a “heavy burden” of establishing that “the challenged conduct cannot reasonably be expected to start up again.” Friends of the Earth, 528 U.S. at 189. “This heavy burden applies to a government entity that voluntarily ceases allegedly illegal conduct.” Bell, 709 F.3d at 898–99.

2. The Roy Defendants have not met their “heavy burden” of establishing that the challenged conduct here cannot reasonably be expected to resume. Though the Roy Defendants offer evidence that the current LASD policy is to ensure that those retained on ICE detainers are not retained for longer than they would be otherwise,6 they do not establish that there is no possibility that the LASD could change its policy to once again allow extended detainer.7 See Bell, 709 F.3d at 901 (holding that implementation of a policy by the Boise Police Department’s Chief of Police lacked sufficient permanence to moot the controversy); cf. White v. Lee, 227 F.3d 1214, 1243 (9th Cir. 2000) (explaining that a government memorandum that was “broad in scope and unequivocal in tone” represented a “permanent change” sufficient to moot the plaintiffs’ claim). Thus, the Roy Plaintiffs’ equitable claims are not moot.Numerosity

6 The only evidence which the Roy Defendants provide regarding this change in LASD policy is oral testimony from Mr. Sivard and Mr. House. (See Defs.’ Sivard Dep. at 120:25–121:7, 179:1–179:9; Clark Decl., Ex. C at 217:22–218:22.) The Roy Defendants provided no evidence of a written policy indicating the change.
7 At oral argument, the Roy Defendants reiterated its argument that the Roy Plaintiffs’ claims were moot because there is now an “absolute policy” that no one subject to an ICE detainer has been held beyond their release date. However, the Roy Defendants have presented no evidence that this new “absolute policy” will always remain in place or could not be amended. Thus, the Court finds that LASD’s voluntary change in policy is not enough to moot this action.

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UNITED STATES DISTRICT COURT

CENTRAL DISTRICT OF CALIFORNIA

Case No. Title

CIVIL MINUTES – GENERAL

CV 12-09012-BRO (FFMx) CV 13-04416-BRO (FFMx)

Date September 9, 2016

DUNCAN ROY ET AL. V. COUNTY OF LOS ANGELES ET AL.

GERARDO GONZALEZ V. IMMIGRATION AND CUSTOMS ENFORCEMENT

ET AL.

The Court next turns to the four elements required under Rule 23(a).8 First, numerosity is satisfied if “the class is so large that joinder of all members is impracticable.” Evon v. Law Offices of Sidney Mickell, 688 F.3d 1015, 1029 (9th Cir. 2012) (citing Fed. R. Civ. P. 23(a)). “The numerosity requirement is not tied to any fixed numerical threshold—it ‘requires examination of the specific facts of each case and imposes no absolute limitations.’” Rannis v. Recchia, 380 F. App’x 646, 651 (9th Cir. 2010) (quoting Gen. Tel. Co. of the Nw., Inc. v. EEOC, 446 U.S. 318, 330 (1980)). Although Rule 23(a) does not require a specific minimum number of class members, Ninth Circuit precedent suggests that numerosity is satisfied when the prospective class includes at least forty members. Id.

a. The Roy Plaintiffs’ Action

Here, the Roy Plaintiffs have easily met the threshold for numerosity. The Roy Plaintiffs present evidence (that the Roy Defendants do not dispute) indicating the approximate number of class members for each damages class based on LASD’s inmate data. (See Roy Mot. at 24–25.) The number of potential class members for each class are as follows:

 False Imprisonment Equitable Relief Class: 10,072 potential class members, (see Declaration of Brian Kriegler (Dkt. No. 155) (hereinafter, “Kriegler Decl.”) at 16);

 Gerstein Equitable Relief Class: 13,030 potential class members, (see id.);

8 The Court notes at the outset that many of the parties’ arguments overlap with the merits of Plaintiffs’ claims. “Rule 23 grants courts no license to engage in free-ranging merits inquires at the certification stage.” Amgen Inc. v. Conn. Ret. Plans & Tr. Funds, 133 S. Ct. 1184, 1194–95 (2013). “Merits questions may be considered to the extent—but only to the extent—that they are relevant to determining whether the Rule 23 prerequisites for class certification are satisfied.” Id. at 1195. Thus, though the Court must consider certain merit-based questions in making its class certification decision, the Court expresses no opinion as to the ultimate likelihood of Plaintiffs succeeding on the merits of their claims.

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LINK:

UNITED STATES DISTRICT COURT

CENTRAL DISTRICT OF CALIFORNIA

Case No. Title

CIVIL MINUTES – GENERAL

CV 12-09012-BRO (FFMx) CV 13-04416-BRO (FFMx)

Date September 9, 2016

DUNCAN ROY ET AL. V. COUNTY OF LOS ANGELES ET AL.

GERARDO GONZALEZ V. IMMIGRATION AND CUSTOMS ENFORCEMENT

ET AL.

 False Imprisonment Damages Class: 10,072 potential class members, (see id.);

 Gerstein Damages Class: 13,030 potential class members from the federal class period and 9,526 potential class members from the state law class period, (see id.);

 Gerstein Post-48-Hour Subclass: 7,197 potential class members from the federal class period and 5,480 potential class members from the state law class period, (see id.);

 Investigative Detainer Class: 21,179 potential class members, (see Battles Decl., Ex. BB);

 No-Bail Class: 12,225 potential class members within the federal class period and 6,020 potential class members within the state law class period, (see Kriegler Decl. at 16);

 No-Money Bail Subclass: 9,197 potential class members within the federal class period and 6,052 potential class members within the state law class period, (see id.).

Thus, the Roy Plaintiffs have met their burden of establishing numerosity as the joinder of all of these potential class members would be impracticable. See Cervantez v. Celestica Corp., 253 F.R.D. 562, 569–70 (C.D. Cal. 2008) (finding class of approximately 4,000 met numerosity requirement). Moreover, even though the Roy Plaintiffs acknowledge that these are still only potential class members, they explain that “when the full data sets are produced,” each class member will be ascertainable through the databases maintained by LASD and ICE. (See Roy Mot. at 25); see also O’Connor v. Boeing N. Am., Inc., 184 F.R.D. 311, 319 (C.D. Cal. 1998) (“[T]he class need not be ‘so ascertainable that every potential member can be identified at the commencement of the action.’ . . . As long as ‘the general outlines of the membership of the class are determinable at the outset of the litigation, a class will be deemed to exist.” (citations

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LINK:

UNITED STATES DISTRICT COURT

CENTRAL DISTRICT OF CALIFORNIA

Case No. Title

CIVIL MINUTES – GENERAL

CV 12-09012-BRO (FFMx) CV 13-04416-BRO (FFMx)

Date September 9, 2016

DUNCAN ROY ET AL. V. COUNTY OF LOS ANGELES ET AL.

GERARDO GONZALEZ V. IMMIGRATION AND CUSTOMS ENFORCEMENT

ET AL.

omitted)). Accordingly, the Court finds that the Roy Plaintiffs have established the numerosity of its proposed classes.

b. The Gonzalez Plaintiffs’ Action

The Gonzalez Plaintiffs have also established numerosity. The Gonzalez Plaintiffs allege that each class includes “thousands” of individuals. As they explain, the Judicial Determination Class consists of all current and future persons who are subject to an ICE detainer where the detainer is not based upon a final order of removal or the individual is not subject to ongoing removal proceedings. (See Gonzalez Mot. at 12.) According to the Gonzalez Plaintiffs’ evidence, ICE agents have issued over 75,000 detainers between December 2012 and February 2016. (Id.; see also Battles Decl. II, Ex. P.) Further, of the 31,925 detainer requests that ICE issued to LASD, only approximately 6,000 were based upon a removal order or ongoing removal proceedings. (Battles Decl. II ¶ 20.) Accordingly, the Gonzalez Plaintiffs “extrapolate” that the “vast majority” of issued detainers were not based upon a final order of removal or ongoing removal proceedings. (Gonzalez Mot. at 13.)

Similarly, the Probable Cause Subclass consists of everyone in the Judicial Determination Class whose detainer was issued solely on the basis of the government database checks. According to the Gonzalez Plaintiffs’ evidence, approximately seventy percent of all detainers issued by ICE in the Southern California area are issued pursuant to database checks rather than in-person interviews. (See Schichel Dep. at 68:11–69:7.) Thus, assuming the Judicial Determination Class is made up of thousands of potential class members, the Probable Cause Subclass will almost certainly include thousands of members as well.

And finally, the Statutory Subclass consists of everyone in the Judicial Determination Class except those against whom ICE has issued an administrative warrant of arrest. (See Gonzalez Mot. at 13.) According to the Gonzalez Plaintiffs, only approximately 0.1% of all detainer requests were based upon an administrative warrant, thus it appears that the class should also be composed of “thousands.” (Id.; see also Battles Decl. II ¶ 20.) Even where the class size is unknown but “common sense indicate[s] that it is large, the numerosity requirement is satisfied.” Cervantez, 253

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LINK:

UNITED STATES DISTRICT COURT

CENTRAL DISTRICT OF CALIFORNIA

Case No. Title

CIVIL MINUTES – GENERAL

CV 12-09012-BRO (FFMx) CV 13-04416-BRO (FFMx)

Date September 9, 2016

DUNCAN ROY ET AL. V. COUNTY OF LOS ANGELES ET AL.

GERARDO GONZALEZ V. IMMIGRATION AND CUSTOMS ENFORCEMENT

ET AL.

F.R.D. at 569. Therefore, since the Gonzalez Plaintiffs have a reasonable statistical basis for assuming the proposed class sizes are in the thousands, the Court finds that they have established numerosity here.

3. Commonality and Typicality

Next, Plaintiffs must demonstrate commonality and typicality. Rule 23(a)’s commonality and typicality factors “tend to merge” in that both commonality and typicality “serve as guideposts for determining whether, under the particular circumstances, maintenance of a class action is economical and whether the named plaintiff’s claim and the class claims are so interrelated that the interests of the class members will be fairly and adequately protected in their absence.” Meyer v. Portfolio Recovery Assocs. LLC, 707 F.3d 1036, 1041 (9th Cir. 2012) (internal quotation marks omitted) (quoting Wal-Mart Stores, 564 U.S. at 349 n.5). “Commonality simply requires that there be at least one legal or factual issue common to the class,” In re Verisign, Inc. Secs. Litig., NO. C 02-02270 JW, 2005 WL 7877645, at *5 (N.D. Cal. Jan. 13, 2005), whereas “[t]he test of typicality is whether other members have the same or similar injury, whether the action is based on conduct which is not unique to the named plaintiffs, and whether other class members have been injured by the same course of conduct,” Hanon v. Dataproducts Corp., 976 F.2d 497, 508 (9th Cir. 1992). As explained below, the Court is persuaded that Plaintiffs have satisfied both requirements as to the majority of their proposed classes.

a. The Roy Plaintiffs’ Action

“Commonality, like numerosity, is a prerequisite which plaintiffs generally . . . satisfy very easily.” Verisign, 2005 WL 7877645, at *5. The Roy Plaintiffs argue that all of the class definitions depend on either an across-the-board policy or practice that is central to the determination, or identical questions of law and fact. (See Roy Mot. at 20– 21.) The Roy Defendants, however, argue that the Supreme Court’s holding in Wal-Mart Stores prevents a finding of commonality in this case. (See Roy Opp’n at 7–13.)

In Wal-Mart Stores, the plaintiffs brought a class action alleging a company-wide pattern of discrimination. See Wal-Mart Stores, 564 U.S. at 342. The Court noted that

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UNITED STATES DISTRICT COURT

CENTRAL DISTRICT OF CALIFORNIA

Case No. Title

CIVIL MINUTES – GENERAL

CV 12-09012-BRO (FFMx) CV 13-04416-BRO (FFMx)

Date September 9, 2016

DUNCAN ROY ET AL. V. COUNTY OF LOS ANGELES ET AL.

GERARDO GONZALEZ V. IMMIGRATION AND CUSTOMS ENFORCEMENT

ET AL.

the “crux” of the case was commonality, because “proof of commonality necessarily overlap[ped] with respondents’ merits contention that Wal-Mart engage[d] in a pattern or practice of discrimination.” Id. at 349, 352. The Court found that the plaintiffs lacked commonality because they were attempting to sue over “literally millions of employment decisions at once,” and there was no “glue holding the alleged reasons for all those decisions together” before certifying a class. Id. at 352. The only policy supported by evidence was one that allowed discretion by local supervisors over employment matters, which the Court held was “just the opposite” of a uniform practice “that would provide the commonality needed for a class action.” Id. at 355. Additionally, the Court analyzed the statistical evidence the plaintiffs provided and held that it failed to establish commonality because it was “too weak to raise any inference that all the individual, discretionary personnel decisions” at issue were discriminatory. Id. at 358.

The Roy Defendants argue that Wal-Mart Stores places a significant burden of evidentiary proof on the Roy Plaintiffs and that the Roy Plaintiffs have failed to meet that burden. (See Roy Opp’n at 11–13.) The Court disagrees with the Roy Defendants as to the majority of the Roy Plaintiffs’ proposed classes. The difference between Wal-Mart Stores and the instant case is that Plaintiffs here have sufficiently alleged and presented evidence of multiple LASD general policies or practices that were apparently performed with little to no discretion on the part of LASD officers. Specifically, LASD apparently had a policy or practice of (1) detaining inmates even if they would otherwise have been released if there was an ICE hold placed on them, (2) routinely failing to provide a probable cause hearing within a reasonable time, (3) honoring investigative detainers, and, (4) not allowing those who would have otherwise been able to post bail9 and those

9 The Roy Defendants argue that the Roy Plaintiffs fail to establish commonality as to the No-Bail Policy Class, in which the Roy Plaintiffs allege that the LASD had a general policy of denying bail to those who had an immigration detainer against them, because the Roy Defendants have offered conflicting evidence that no such policy existed. The Roy Defendants present deposition testimony and documentary evidence that no such policy existed, and LASD would accept bail from those who proffered the bail amount, even if there was an ICE detainer placed against them. (See Declaration of Greg Sivard (Dkt. No. 167) ¶¶ 6–8, Exs. D, E; see also Clark Decl., Exs. A, B.) However, the Roy Defendants’ evidence is not convincing, as it also makes clear that there was confusion amongst LASD officers as to whether inmates with immigration detainers could post bail. (See Defs.’ Sivard Dep. at

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LINK:

UNITED STATES DISTRICT COURT

CENTRAL DISTRICT OF CALIFORNIA

Case No. Title

CIVIL MINUTES – GENERAL

CV 12-09012-BRO (FFMx) CV 13-04416-BRO (FFMx)

Date September 9, 2016

DUNCAN ROY ET AL. V. COUNTY OF LOS ANGELES ET AL.

GERARDO GONZALEZ V. IMMIGRATION AND CUSTOMS ENFORCEMENT

ET AL.

who would otherwise have been released on their own recognizance to be released because there was an immigration detainer against them. (See Roy Mot. at 20–2; see also discussion supra Section II.A.1.b.) Thus, the “glue” that the Supreme Court required in Wal-Mart Stores exists here—all LASD employees regardless of location or position apparently followed these broad policies.

The Court agrees with the Roy Defendants, however, that the Roy Plaintiffs have failed to establish commonality as to the Gerstein class. The Gerstein class claims that the detention of all class members for any period of time violates the class members’ rights under the Fourth and Fourteenth Amendment, while the Post-48 Hour Gerstein subclass claims that all detentions for more than forty-eight hours violated the class members’ Fourth and Fourteenth Amendment rights. (Roy Mot. at 17.) Liability for the Gerstein classes “turns on whether inmates held after they were due for release on criminal matters were denied a prompt judicial determination of probable cause.” (Roy Mot. at 20.) The Roy Defendants argue that the Roy Plaintiffs have failed to establish how these theories are subject to class-wide determination.

The Supreme Court has held that a detained individual must be provided “a fair and reliable determination of probable cause as a condition for any significant pretrial restraint of liberty, and this determination must be made by a judicial officer either before or promptly after arrest.” Gerstein, 420 U.S. at 125. In McLaughlin, 500 U.S. at 56, the Supreme Court held that “a jurisdiction that provides judicial determinations of probable cause within 48 hours of arrest will, as a general matter, comply with the promptness requirement of Gerstein.” However, the timing of a probable cause determination in a particular case does not pass “constitutional muster simply because it is provided within 48 hours.” Id. Additionally, if it takes longer than forty-eight hours to provide a probable cause determination, “the calculus changes.” Id. at 57. In that case, “the burden shifts to the government to demonstrate the existence of a bona fide emergency or other extraordinary circumstance” justifying the delay in making the determination. Id.

117:25–118:5.) Thus, the Court finds that the Roy Plaintiffs have presented enough evidence to establish commonality.

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LINK:

UNITED STATES DISTRICT COURT

CENTRAL DISTRICT OF CALIFORNIA

Case No. Title

CIVIL MINUTES – GENERAL

CV 12-09012-BRO (FFMx) CV 13-04416-BRO (FFMx)

Date September 9, 2016

DUNCAN ROY ET AL. V. COUNTY OF LOS ANGELES ET AL.

GERARDO GONZALEZ V. IMMIGRATION AND CUSTOMS ENFORCEMENT

ET AL.

The Roy Defendants argue that class certification is inappropriate based on Gerstein because each inquiry must be made individually to determine whether a probable cause determination was provided in a reasonable time frame. (See Roy Opp’n at 20–21.) The Court agrees as to those Defendants whose probable cause determination was made in less than forty-eight hours. Under the Supreme Court’s direction in McLaughlin, generally a probable cause determination made within forty-eight hours is reasonable, unless there are specific facts supporting unreasonableness. See McLaughlin, 500 U.S. at 56. Thus, whether each class member who was provided a probable cause hearing within forty-eight hours was provided a hearing within a reasonable amount of time would be an individualized inquiry dependent on the facts of the case. See Ilae v. Tenn, Civ. No. 12-00316 ACK-KSC, 2013 WL 4499386, at *5 (D. Haw. Aug. 20, 2013) (“The County is permitted to make warrantless arrests, and the 48-hour timeframe in the alleged policy . . . generally complies with the promptness requirement.”). For those who were not given a probable cause hearing for more than forty-eight hours, however, it may be found as a matter of law that all such delays were unreasonable. See id. at 57. Thus, the Court finds that the Roy Plaintiffs have failed to establish commonality for the Gerstein class, though they have met the commonality requirement for the Post-48-Hours Gerstein subclass.

As for typicality, “[t]he Ninth Circuit does not require the named plaintiffs’ injuries to be ‘identical with those of the other class members, [but] only that the unnamed class members have injuries similar to those of the named plaintiffs and that the injuries result from the same injurious course of conduct.’” Cooper, 254 F.R.D. at 635 (second modification in original) (quoting Armstrong v. Davis, 275 F.3d 849, 869 (9th Cir. 2001)). Here, the Roy Plaintiffs have alleged that at least one of the still-active named Plaintiffs are typical of each proposed class:

 False Imprisonment Equitable Relief Class: Mr. De La Cerda, at the time of filing, like other class members, faced possible detention on the basis of an ICE detainer without being subject to a final order of removal, (see Roy SAC ¶ 12; Battles Decl. ¶ 25);

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LINK:

UNITED STATES DISTRICT COURT

CENTRAL DISTRICT OF CALIFORNIA

Case No. Title

CIVIL MINUTES – GENERAL

CV 12-09012-BRO (FFMx) CV 13-04416-BRO (FFMx)

Date September 9, 2016

DUNCAN ROY ET AL. V. COUNTY OF LOS ANGELES ET AL.

GERARDO GONZALEZ V. IMMIGRATION AND CUSTOMS ENFORCEMENT

ET AL.

 Gerstein Equitable Relief Class: Mr. De La Cerda, at the time of filing, like other class members, faced the possibility of detention on the basis of an immigration detainer without being subject to a final order of removal or ongoing removal proceedings, (see Roy SAC ¶ 12; Battles Decl. ¶ 25);

 False Imprisonment Damages Class: Mr. Martinez-Perez and Ms. Alliksoo were both detained beyond the time they were due for release based on their criminal charges, though neither were subject to a final order of removal or ongoing removal proceedings, and further, their detentions fall within both the federal and state class periods, (see Roy SAC ¶¶ 10–11; Battles Decl. ¶ 25);

 Post-48-Hours Gerstein Class: Mr. Martinez-Perez and Ms. Alliksoo were both detained for at least forty-eight hours beyond the time they would have otherwise become eligible for release, (see Roy SAC ¶¶ 10–11);

 Investigative Detainer Class: Mr. Martinez-Perez and Ms. Alliksoo were both detained beyond the time they would have otherwise been released based on their criminal detentions based solely on an “investigative detainer,” (see Battles Decl., Exs. X, AA);

 No-Bail Class: Mr. Martinez-Perez and Ms. Alliksoo were both assigned a “no-bail” notation within LASD’s electronic systems and were thus denied the right to post bail, (see Roy SAC ¶¶ 10, 11, 75, 83–85);

 No-Money Bail Subclass: Mr. Martinez-Perez and Ms. Alliksoo both had bail amounts less than $25,000, yet, instead of being released, were detained by LASD due to an ICE detainer, (see SAC ¶¶ 75, 83–85).

Accordingly, the Court finds that the Roy Plaintiffs have presented facts to support a finding that at least one of the named Plaintiffs adequately represent other class members in this action. Further, the Roy Defendants have not disputed the named Plaintiffs’ typicality. Thus, the Court finds that the Roy Plaintiffs have established

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UNITED STATES DISTRICT COURT

CENTRAL DISTRICT OF CALIFORNIA

Case No. Title

CIVIL MINUTES – GENERAL

CV 12-09012-BRO (FFMx) CV 13-04416-BRO (FFMx)

Date September 9, 2016

DUNCAN ROY ET AL. V. COUNTY OF LOS ANGELES ET AL.

GERARDO GONZALEZ V. IMMIGRATION AND CUSTOMS ENFORCEMENT

ET AL.

commonality for all of their claims other than the Gerstein class and have established typicality as to all of their remaining proposed classes.

b. The Gonzalez Plaintiffs’ Action

The Gonzalez Plaintiffs allege that they have established commonality because their claims raise multiple questions common to the class and subclasses. (Gonzalez Mot. at 16.)

First, the Judicial Determination Class challenges ICE’s practice of failing to provide a judicial determination of probable cause at any point while an individual is held in ICE custody. The Court finds that the Gonzalez Plaintiffs’ Judicial Determination Class, like the Roy Plaintiffs’ Gerstein Damages Class, is not appropriate for class-wide relief. As addressed above, Gerstein and McLaughlin create a presumption that a failure to provide a probable cause hearing within forty-eight hours of arrest is a violation of an individual’s Fourth Amendment rights. See McLaughlin, 500 U.S. at 56; Gerstein, 420 U.S. at 126. However, individuals who were detained for less than forty-eight hours and were not given a prompt judicial determination of probable cause may not have had their constitutional rights violated, as a prompt probable cause determination may not have been required. Thus, the Gonzalez Plaintiffs have created an overbroad class by crafting a class definition that includes everyone who was detained without a prompt judicial determination of probable cause, without consideration of the time they were ultimately detained. Therefore, the Court finds that the Gonzalez Plaintiffs have failed to establish commonality as to their proposed Judicial Determination Class.

However, “[t]he Court may cure the defects of a proposed class definition where the class is overbroad.” Soto v. Castlerock Farming & Transp., Inc., No. 1:09-cv-00701AWI-JLT, 2013 WL 6844377, at *23 (E.D. Cal. Dec. 23, 2013). The Court finds that, for the reasons enumerated above, a class consisting of members who were detained for more than forty-eight hours meets the commonality requirement, as forty-eight-hour or longer detentions may be considered presumptively unlawful under Gerstein and McLaughlin and may be subject to class-wide determination. Therefore, the Court sua sponte limits the Gonzalez Plaintiffs’ proposed Judicial Determination Class to consist of those who were detained for at least forty-eight hours.

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UNITED STATES DISTRICT COURT

CENTRAL DISTRICT OF CALIFORNIA

Case No. Title

CIVIL MINUTES – GENERAL

CV 12-09012-BRO (FFMx) CV 13-04416-BRO (FFMx)

Date September 9, 2016

DUNCAN ROY ET AL. V. COUNTY OF LOS ANGELES ET AL.

GERARDO GONZALEZ V. IMMIGRATION AND CUSTOMS ENFORCEMENT

ET AL.

Next, the Probable Cause Subclass alleges that it is the Gonzalez Defendants’ unlawful policy to base probable cause determinations on only a check of an online database. (See Gonzalez Mot. at 18.) Thus, the question common to the class is whether this practice is unlawful. Third, the Statutory Subclass examines the question of whether ICE violates 8 U.S.C. § 1357(a)(2) by having a policy or practice of not determining whether an individual is likely to escape prior to the time it could obtain an administrative warrant before issuing a detainer that results in detention. (Gonzalez Mot. at 19.) This leads only to a common question challenging the practice.

The Gonzalez Defendants contend that “probable cause is a highly fact specific inquiry,” and thus the Gonzalez Defendants’ classes lack commonality. (See Gonzalez Opp’n at 17.) This argument appears to reference the Probable Cause Subclass. However, the Probable Cause Subclass does not challenge whether ICE actually had probable cause; rather, it challenges the alleged practice of basing probable cause only on information contained in an online database, rather than through in-person interviews or determinations. (See Gonzalez Mot. at 18.) Thus, individual determinations of whether ICE had probable cause as to any given individual is unnecessary.10 Additionally, the Gonzalez Defendants allege that ICE’s new detainer forms now require that agents have probable cause regarding the individual’s need for removal before issuing a detainer. (Gonzalez Opp’n at 17–18.) Even assuming this is the case, as addressed above, a voluntary change in policy does not moot the Gonzalez Plaintiffs’ claim.

Next, the Gonzalez Defendants argue that the proposed classes are too broad and not yet ripe because they include both current and future individuals. (Gonzalez Opp’n at 18.) “A claim is not ripe for adjudication if it rests upon contingent future events that may not occur as anticipated, or indeed may not occur at all.” Rodriguez v. Hayes, 591 F.3d 1105, 1118 (9th Cir. 2010) (alteration and citation omitted). However, including “future class members in a class is not itself unusual or objectionable.” Id. Rather,

10 Further, even if the Court construes the Gonzalez Defendants’ challenge as one to the Judicial Determination Class, as addressed above, the Court finds that the Gonzalez Plaintiffs have failed to establish commonality amongst the Judicial Determination Class. Thus, any argument attacking the Judicial Determination Class is moot.

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LINK:

UNITED STATES DISTRICT COURT

CENTRAL DISTRICT OF CALIFORNIA

Case No. Title

CIVIL MINUTES – GENERAL

CV 12-09012-BRO (FFMx) CV 13-04416-BRO (FFMx)

Date September 9, 2016

DUNCAN ROY ET AL. V. COUNTY OF LOS ANGELES ET AL.

GERARDO GONZALEZ V. IMMIGRATION AND CUSTOMS ENFORCEMENT

ET AL.

“[w]hen the future persons referenced become members of the class, their claims will necessarily be ripe.” Id. Thus, the Court finds this contention does not defeat a finding of commonality.

Further, the Gonzalez Defendants allege that the Gonzalez Plaintiffs have failed to sufficiently identify what specific policies or practices they are alleging are unconstitutional. (See Gonzalez Opp’n at 19.) The Court disagrees. Plaintiff’s proposed classes and subclasses clearly indicate what policy each challenges.

As for typicality, the Gonzalez Plaintiffs allege that they are typical of the class, because they are members of each class even though they do not currently have immigration detainers issued against them and are United States citizens. (Gonzalez Mot. at 20–21.) The Gonzalez Defendants argue that the named Plaintiffs are not typical of the class because they “are not even members of the putative classes or subclasses.” (Gonzalez Opp’n at 20.) The Court interprets the Gonzalez Defendants’ argument as a mootness argument (though a different mootness argument than that made by the Roy Defendants addressed above). The Court disagrees with the Gonzalez Defendants and finds that the Gonzalez Plaintiffs’ claims are not moot.

“Although a loss of personal interest in the outcome of the case generally precludes plaintiff from pursuing relief either for his own benefit or on behalf of a class, if the issues raised remain alive, courts apply the mootness doctrine flexibly.” Wilbur v. City of Mount Vernon, 298 F.R.D. 665, 668 (W.D. Wash. 2012) (citing Pitts v. Terrible Herbst, Inc., 653 F.3d 1081, 1087 (9th Cir. 2011)). Courts have created an exception to the mootness doctrine where “the class of plaintiffs is transitory (meaning that there is a constant class of persons suffering from the alleged deprivation, but that individuals within the class will likely lose their interest while the case is pending).” Id. In that case, the court may certify a class even if the named plaintiff’s claims are moot because “the ‘relation back’ doctrine will relate to [the named plaintiff’s] standing at the outset of the case in order ‘to preserve the merits of the case for judicial resolution.’” Wade v. Kirkland, 118 F.3d 667, 670 (9th Cir. 1997) (quoting McLaughlin, 500 U.S. at 52).

Both Gonzalez Plaintiffs were subject to immigration detainers at the time they joined the litigation. (See Gonzalez TAC ¶¶ 12, 14.) But the Gonzalez Plaintiffs’ TAC

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UNITED STATES DISTRICT COURT

CENTRAL DISTRICT OF CALIFORNIA

Case No. Title

CIVIL MINUTES – GENERAL

CV 12-09012-BRO (FFMx) CV 13-04416-BRO (FFMx)

Date September 9, 2016

DUNCAN ROY ET AL. V. COUNTY OF LOS ANGELES ET AL.

GERARDO GONZALEZ V. IMMIGRATION AND CUSTOMS ENFORCEMENT

ET AL.

indicates that the ICE detainers issued against both Mr. Gonzalez and Mr. Chinivizyan requested that they be detained for only forty-eight hours plus weekends and holidays beyond when they would otherwise have been released from custody. (Id.) Thus, it appears unreasonable to expect the named plaintiffs’ to be subject to an immigration detainer throughout the entirety of this litigation. Therefore, the Court finds that the transitory exception applies to the Gonzalez Plaintiffs’ claims and their claims are not moot. See Wade, 118 F.3d at 670.

Further, the Gonzalez Defendants claim that Mr. Gonzalez has not demonstrated that he is a typical member of the Probable Cause Subclass because the only reason that Mr. Gonzalez was improperly detained was because a law enforcement officer incorrectly wrote in Mr. Gonzalez’s booking record that he was born in Mexico, and thus, they have failed to demonstrate that LASD “routinely” provides inaccurate information to ICE. (Gonzalez Opp’n at 21–22.) However, the Gonzalez Plaintiffs’ claims allege that the practice of relying on an electronic database for establishing probable cause is unlawful, and thus Mr. Gonzalez’s detainment based on the flawed information in the database makes him typical of the class. (Gonzalez Reply at 8–9.) The Court finds that these facts are sufficient to establish that the Gonzalez Plaintiffs’ injuries arose from the same conduct as the injuries to the rest of the proposed subclass. See Hanon, 976 F.2d at 508. Thus, the Court finds that the Gonzalez Plaintiffs have established commonality and typicality as to the Probable Cause and Statutory Subclasses.

3. Adequacy of Representation

Finally, Plaintiffs must demonstrate that their lead parties are adequate representatives of the class. The adequacy requirement “serves to uncover conflicts of interest between named parties and the class they seek to represent.” Amchem Prods., 521 U.S. at 625 (internal citation and quotation marks omitted). Under Ninth Circuit precedent, adequacy depends on the resolution of two questions: (1) whether “the named plaintiffs and their counsel have any conflicts of interest with other class members”; and, (2) whether “the named plaintiffs and their counsel [will] prosecute the action vigorously on behalf of the class.” Hanlon, 150 F.3d at 1020. “Adequate representation depends on, among other factors, an absence of antagonism between representatives and absentees,

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LINK:

UNITED STATES DISTRICT COURT

CENTRAL DISTRICT OF CALIFORNIA

Case No. Title

CIVIL MINUTES – GENERAL

CV 12-09012-BRO (FFMx) CV 13-04416-BRO (FFMx)

Date September 9, 2016

DUNCAN ROY ET AL. V. COUNTY OF LOS ANGELES ET AL.

GERARDO GONZALEZ V. IMMIGRATION AND CUSTOMS ENFORCEMENT

ET AL.

and a sharing of interest between representatives and absentees.” In re NJOY, Inc. Consumer Class Action Litig., 120 F. Supp. 3d 1050, 1101 (C.D. Cal. 2015) (quoting Ellis, 657 F.3d at 985).

a. The Roy Plaintiffs’ Action

The Roy Plaintiffs aver that the named Plaintiffs and their current counsel are adequate representatives here, and the Roy Defendants do not dispute the adequacy of the named Plaintiffs or counsel. (See Roy Mot. at 25–26.) Mr. Martinez-Perez and Ms. Alliksoo have submitted declarations indicating that they are prepared to pursue the case through to resolution, that they have no conflicts with other class members, and that they understand their responsibilities as class representatives. (See Declaration of Alain Martinez-Perez (Dkt. No. 151-31) ¶¶ 3–6; Declaration of Annika Alliksoo (Dkt. No. 15132) ¶¶ 3–6.) As to Mr. De La Cerda, at oral argument, the Court questioned the Roy Plaintiffs’ counsel as to his involvement in the litigation. Counsel indicated that Mr. De La Cerda’s deposition has been scheduled and that he is actively participating in the case though he now lives in Mexico. Therefore, the Court finds that all three named Plaintiffs are actively involved in the litigation and are adequately representing the other class members.

Further, class counsel has submitted evidence of their qualifications to represent the class, including that they have worked extensively in identifying and investigating this action and have pursued this case since the litigation began in 2012. (See Declaration of Barrett S. Litt (Dkt. No. 151-1) ¶ 8.) Class counsel represents that they have significant knowledge of this area of the law and have handled other class actions and complex litigation. (Id.) Additionally, the Roy Plaintiffs’ counsel also serves as counsel in the Gonzalez action. (Id.) Accordingly, the Court finds that the class counsel adequately represent the Roy Plaintiffs’ proposed classes.

b. The Gonzalez Plaintiffs’ Action

The Gonzalez Defendants present no challenge to the adequacy of the named Plaintiffs other than the argument that they are not typical, as discussed above. First, the Roy Plaintiffs’ counsel also represents the Gonzalez Plaintiffs. Thus, the Court finds

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LINK:

UNITED STATES DISTRICT COURT

CENTRAL DISTRICT OF CALIFORNIA

Case No. Title

CIVIL MINUTES – GENERAL

CV 12-09012-BRO (FFMx) CV 13-04416-BRO (FFMx)

Date September 9, 2016

DUNCAN ROY ET AL. V. COUNTY OF LOS ANGELES ET AL.

GERARDO GONZALEZ V. IMMIGRATION AND CUSTOMS ENFORCEMENT

ET AL.

that, for the same reasons as above, the Gonzalez Plaintiffs’ counsel will adequately represent the class. As for the named Plaintiffs, the Gonzalez Plaintiffs have presented evidence that Mr. Gonzalez is actively participating in the litigation and is adequately representing the class members. (See Declaration of Gerardo Gonzalez (Dkt. No. 15221).) Further, at oral argument, the Court also questioned the Gonzalez Plaintiffs’ counsel regarding Mr. Chinivizyan’s participation in the case. Counsel indicated that Mr. Chinivizyan is available and has responded to discovery that has been served. Accordingly, the Court finds that both of the named Plaintiffs are adequately representing the proposed classes in the Gonzalez Plaintiffs’ action.

4. Whether the Roy Plaintiffs Have Satisfied Rule 23(b)

a. Whether the Roy Plaintiffs Have Satisfied Rule 23(b)(2)

As noted above, certification under Rule 23(b)(2) “is appropriate only where the primary relief sought is declaratory or injunctive,” Zinser, 253 F.3d at 1195, and the relief requested applies to “the class as a whole,” Fed. R. Civ. P. 23(b)(2). Rule 23(b)(2) class certification is particularly appropriate in civil rights cases. See Amchem Prods., 521 U.S. at 614 (“Civil rights cases against parties charged with unlawful, class-based discrimination are prime examples [of Rule 23(b)(2) classes].”); Parsons v. Ryan, 754 F.3d 657, 686 (9th Cir. 2014) (“Although we have certified many different kinds of Rule 23(b)(2) classes, the primary role of this provision has always been the certification of civil rights class actions.”).

The Roy Plaintiffs argue that their proposed Equitable Relief Classes seek only injunctive relief and will apply to their proposed equitable relief classes as a whole. (See Roy Mot. at 34–35.) The Roy Defendants claim, however, that certification of the Roy Plaintiffs’ claims under Rule 23(b)(2) would be inappropriate, because their claims for damages predominate over their injunctive claims. (See Roy Opp’n at 4–5.) It is true that “[c]lass certification under Fed. R. Civ. P. 23(b)(2) is not appropriate where the relief requested relates ‘exclusively or predominately to money damages.’” Nelsen v. King County, 895 F.2d 1248, 1254–55 (9th Cir. 1990). However, there is a difference between seeking damages for a class certified under Rule 23(b)(2) and seeking to certify separate classes in the same action in which injunctive relief is sought for classes certified under

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LINK:

UNITED STATES DISTRICT COURT

CENTRAL DISTRICT OF CALIFORNIA

Case No. Title

CIVIL MINUTES – GENERAL

CV 12-09012-BRO (FFMx) CV 13-04416-BRO (FFMx)

Date September 9, 2016

DUNCAN ROY ET AL. V. COUNTY OF LOS ANGELES ET AL.

GERARDO GONZALEZ V. IMMIGRATION AND CUSTOMS ENFORCEMENT

ET AL.

Rule 23(b)(2) and damages are sought for classes certified under Rule 23(b)(3). See Ellis, 657 F.3d at 987–88 & n.10 (9th Cir. 2011) (recognizing that the district court could certify a damages class under Rule 23(b)(3) separate from, or in addition to, an injunctive relief class under Rule 23(b)(2)). This case presents the latter situation: the Roy Plaintiffs are not seeking damages in connection with the Equitable Relief Classes; rather, they are seeking damages in connection with the Damages Classes under Rule 23(b)(3). Thus, whether the damages claims are incidental to the injunctive relief the Roy Plaintiffs seek is irrelevant, because the Roy Plaintiffs are not seeking to recover damages for the proposed Rule 23(b)(2) classes.

The Equitable Relief Classes seek only injunctive relief and, if the Roy Plaintiffs prevail on their claims, will apply generally to the class members as whole. Further, the Court is cognizant of the particular application of Rule 23(b)(2) classes in civil rights actions such as this. Therefore, the Court finds that the Roy Plaintiffs’ claims may be certified under Rule 23(b)(2).

b. Whether the Roy Plaintiffs Have Satisfied Rule 23(b)(3)

i. Whether the Roy Plaintiffs Have Demonstrated Predominance

The Roy Defendants’ primary argument regarding the Damages Classes is that the Roy Plaintiffs have failed to establish predominance pursuant to Rule 23(b)(3). (See Roy Opp’n at 13–24.) Rule 23(b)(3) requires a showing that “questions of law or fact common to class members predominate over any questions affecting only individual members.” Amgen, Inc., 133 S. Ct. at 1209–10. The predominance inquiry “tests whether [the] proposed classes are sufficiently cohesive to warrant adjudication by representation” and “trains on the legal or factual questions that qualify each class member’s case as a genuine controversy.” Amchem Prods., 521 U.S. at 623. In doing so, it “focuses on the relationship between the common and individual issues” of the class. Hanlon v. Chrysler Corp., 150 F.3d 1011, 1022 (9th Cir. 1998); see also Local Joint Exec. Bd. of Culinary/Bartender Tr. Fund v. Las Vegas Sands, Inc., 244 F.3d 1152, 1162 (9th Cir. 2001). In other words, “[w]hen common questions present a significant aspect of the case and they can be resolved for all members of the class in a single adjudication,

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LINK:

UNITED STATES DISTRICT COURT

CENTRAL DISTRICT OF CALIFORNIA

Case No. Title

CIVIL MINUTES – GENERAL

CV 12-09012-BRO (FFMx) CV 13-04416-BRO (FFMx)

Date September 9, 2016

DUNCAN ROY ET AL. V. COUNTY OF LOS ANGELES ET AL.

GERARDO GONZALEZ V. IMMIGRATION AND CUSTOMS ENFORCEMENT

ET AL.

there is clear justification for handling the dispute on a representative rather than on an individual basis.” Hanlon, 150 F.3d at 1022 (quoting 7A Charles Alan Wright, Arthur R. Miller & Mary Kay Kane, Federal Practice & Procedure § 1778 (2d ed. 1986)). A finding of commonality under Rule 23(a)(2) is insufficient by itself to satisfy Rule 23(b)(3). Id. (“[The predominance] analysis presumes that the existence of common issues of fact or law have been established pursuant to Rule 23(a)(2).”); see also Nguyen v. BDO Seidman, LLP, No. SACV 07–01352–JVS (MLGx), 2009 WL 7742532, at *2 n.2 (C.D. Cal. July 6, 2009) (denying plaintiff’s motion for class certification where plaintiff did not meet the requirements of Rule 23(b)(3), although noting that the requirements of Rule 23(a) “could be met”). Nevertheless, predominance does not require that the legal and factual issues be identical across the class. Certification is proper where “[a] common nucleus of facts and potential legal remedies dominates [the] litigation.” Id.; see also Connelly v. Hilton Grand Vacations Co., LLC, 294 F.R.D. 574, 577 (S.D. Cal. 2013) (“[P]redominance in TCPA cases primarily turns on whether a class-based trial on the merits could actually be administered.”).

A. False Imprisonment Damages Claim

First, the Roy Defendants argue that the Roy Plaintiffs’ False Imprisonment Damages claim involve fact-specific inquiries precluding class certification. (See Roy Opp’n at 17–18.) The False Imprisonment Damages Class is based on the legal theory that class members who were detained solely on the basis of ICE detainers are entitled to recover because the detainment constituted false imprisonment under California law. (See Roy Mot. at 16.) Under California law, the tort of false imprisonment “consists of the nonconsensual, intentional confinement of a person, without lawful privilege for an appreciable length of time, however short.” Fermino v. Fedco, Inc., 7 Cal. 4th 701, 715 (Cal. 1994) (internal quotation marks omitted). Once the plaintiff has established that a false imprisonment took place, “the burden shifts to the defendant to show a justification for the [imprisonment].” Levin, 158 Cal. App. 4th at 1018. According to the Roy Defendants, this shifting burden “means that the question of whether any proposed class member was falsely imprisoned, under California state law, will require individualized determinations.” (Roy Opp’n at 18.) The Roy Plaintiffs, on the other hand, contend that

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LINK:

UNITED STATES DISTRICT COURT

CENTRAL DISTRICT OF CALIFORNIA

Case No. Title

CIVIL MINUTES – GENERAL

CV 12-09012-BRO (FFMx) CV 13-04416-BRO (FFMx)

Date September 9, 2016

DUNCAN ROY ET AL. V. COUNTY OF LOS ANGELES ET AL.

GERARDO GONZALEZ V. IMMIGRATION AND CUSTOMS ENFORCEMENT

ET AL.

individual determinations are not necessary, because “LASD knew or should have known that all such detentions were unlawful.” (Roy Reply at 4.)

According to the Roy Defendants, each claim will require the Court to examine factors such as whether the jail personnel knew or should have known of the illegality of the detainer and whether the detention was without lawful privilege. (Roy Opp’n at 19.) However, the Roy Defendants have not indicated how this inquiry would change on an individual basis. Rather, it appears that one determination could be made in determining whether the LASD was aware, or should have been aware, that the detainer of individuals based on immigration detainers was unlawful and whether there was any privilege that would apply to the LASD as a whole. Thus, the Court finds that common questions predominate and the Court can effectively adjudicate the issue through a single adjudication. See Hanlon, 150 F.3d at 1022.

B. The Post-48-Hour Gerstein Subclass

The Post-48 Hour Gerstein subclass claims that all detentions for more than fortyeight hours violated the class members’ Fourth and Fourteenth Amendment rights. (Mot. at 17.) Liability for the Post-48-Hour Gerstein Subclass “turns on whether inmates held after they were due for release on criminal matters were denied a prompt judicial determination of probable cause.” (Roy Mot. at 20.) As the Court addressed above, for those inmates who were detained for more than forty-eight hours, one issue predominates—whether the failure to provide a judicial determination of probable cause within forty-eight hours is unreasonable. Further, class certification will not prevent the Roy Defendants from presenting individualized affirmative defenses, including whether an emergency or other extraordinary circumstance justified a more than forty-eight-hour delay in making a probable cause determination for specific cases. See Mullins v. Direct Digital, LLC, 795 F.3d 654, 671 (7th Cir. 2015) (“As long as the defendant is given the opportunity to challenge each class member’s claim to recovery during the damages phase, the defendant’s due process rights are protected.”). Therefore, issues common to the class predominate.

C. Investigative Detainer Class

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LINK:

UNITED STATES DISTRICT COURT

CENTRAL DISTRICT OF CALIFORNIA

Case No. Title

CIVIL MINUTES – GENERAL

CV 12-09012-BRO (FFMx) CV 13-04416-BRO (FFMx)

Date September 9, 2016

DUNCAN ROY ET AL. V. COUNTY OF LOS ANGELES ET AL.

GERARDO GONZALEZ V. IMMIGRATION AND CUSTOMS ENFORCEMENT

ET AL.

The Roy Plaintiffs’ fourth class, titled the “Investigative Detainer Class,” includes all LASD inmates who were detained beyond the time they were due for release from criminal custody based solely on an investigative ICE detainer, because these investigative detainers did not constitute a lawful basis for arrest and violated the members’ Fourth Amendment rights. (Roy Mot. at 17.) The Roy Defendants claim that this class is not appropriate for class certification because whether a particular inmate’s release date was controlled “solely” by the existence of an ICE detainer would require an examination of the individual’s circumstances. (Roy Opp’n at 23.) In response, the Roy Plaintiffs argue that, for purposes of the class definition, the class refers only to those who “became due for release on all criminal matters, and who had no outstanding wants, holds or warrants aside from an immigration detainer.” (Roy Reply at 8.) Further, the Roy Plaintiffs note that LASD’s database information enables a determination of which inmates fall into these classifications. (Id.) The Court agrees with the Roy Plaintiffs. The Roy Plaintiffs’ class definition appears straightforward as it applies only to those who were retained, per the LASD database, based only on an “investigative detainer,” which can be determined from LASD’s database. Thus, common issues predominate.

D. The No-Bail Classes

Finally, the Roy Plaintiffs’ last two damages classes and subclasses include the No-Bail Notation Class, which includes all LASD inmates who were not eligible to post bail based on an immigration detainer, and the No-Money Bail Subclass, which includes all LASD inmates who were misdemeanor defendants with a bail of less than $25,000 and would normally not have been taken into custody were it not for an immigration detainer against them. (Roy Mot. at 18.) The Roy Plaintiffs claim that LASD’s denial of bail for these inmates violates their constitutional rights. (Id.) The Roy Defendants, however, claim that the rights of those who never attempted to post bail could not have been violated, and since there is no way to determine, absent individual inquiry, whether a specific Defendant posted bail, common questions do not predominate. (See Roy Opp’n at 22–23.) In response, the Roy Plaintiffs argue that even those inmates who did not attempt to post bail are eligible to receive presumed or nominal damages, and that the members of the No-Money Bail Subclass do not depend on whether the inmate attempted

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UNITED STATES DISTRICT COURT

CENTRAL DISTRICT OF CALIFORNIA

Case No. Title

CIVIL MINUTES – GENERAL

CV 12-09012-BRO (FFMx) CV 13-04416-BRO (FFMx)

Date September 9, 2016

DUNCAN ROY ET AL. V. COUNTY OF LOS ANGELES ET AL.

GERARDO GONZALEZ V. IMMIGRATION AND CUSTOMS ENFORCEMENT

ET AL.

to post bail, but whether they would have been released but for the ICE detainer. (Roy Reply at 8–9.)

The Court agrees with the Roy Plaintiffs. Even if some inmates did not attempt to post bail, “courts traditionally have vindicated deprivations of certain ‘absolute’ rights that are not shown to have caused actual injury through the award of a nominal sum of money.” Carey v. Piphus, 435 U.S. 247, 266 (1978); see also George v. City of Long Beach, 973 F.2d 709, 708 (9th Cir. 1992) (“In this Circuit, nominal damages must be awarded if a plaintiff proves a violation of his constitutional rights.”). The inability to post bail due only to the immigration detainer, even if an individual inmate never actually attempted to do so, could violate the inmate’s procedural due process rights. See Ilae, 2013 WL 4499386, at *8 (finding the plaintiff had a cognizable claim “that the delay in his admission to bail after bail was set violates the due process clause of the Fourteenth Amendment”). Thus, some inmates never attempting to post bail does not defeat class certification. Moreover, as the Roy Plaintiffs correctly note, the No-Money Bail Subclass includes anyone who would have been released under LASD’s policy for having bail less than $25,000 were it not for an immigration detainer. (See Roy Reply at 8.) Therefore, all of these class members’ alleged constitutional rights would be violated by the mere denial of release. Therefore, the Court finds that the individual questions of fact do not predominate the No-Bail Classes.

Accordingly, the Court finds that the Roy Plaintiffs have established that common questions of law or fact predominate all of the remaining classes and that the Roy Plaintiffs have met their burden under Rule 23(b)(3).

E. Whether Damages Determinations Preclude Certification

Next, the Roy Defendants argue that the individualized assessment that will be required to determine damages for each class member defeats certification. (Roy Opp’n at 24.) Though the Roy Defendants concede that “the presence of individualized damages cannot, by itself, defeat class certification,” see Leyva v. Medline Indus., 716

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UNITED STATES DISTRICT COURT

CENTRAL DISTRICT OF CALIFORNIA

Case No. Title

CIVIL MINUTES – GENERAL

CV 12-09012-BRO (FFMx) CV 13-04416-BRO (FFMx)

Date September 9, 2016

DUNCAN ROY ET AL. V. COUNTY OF LOS ANGELES ET AL.

GERARDO GONZALEZ V. IMMIGRATION AND CUSTOMS ENFORCEMENT

ET AL.

F.3d 510, 514 (9th Cir. 2013), they argue that damages in this case are incapable of classwide calculation, and thus, would result in individual damages calculations overwhelming the common questions, (see Roy Opp’n at 24). However, the Roy Plaintiffs argue that under California Civil Code section 52.1, the majority of class members will seek statutory damages in lieu of actual damages. (See Roy Mot. at 30–31; Roy Reply at 10.)

In Comcast Corp. v. Behrend, 133 S. Ct. 1426, 1433 (2013), the Supreme Court held that the plaintiffs’ proposed method for damages calculations did not establish that damages were capable of “measurement on a classwide basis.” But the Ninth Circuit has interpreted Comcast to stand for the proposition that “plaintiffs must be able to show that their damages stemmed from the defendant’s actions that created the legal liability.” Pulaski & Middleman, LLC v. Google, Inc., 802 F.3d 979, 987–88 (9th Cir. 2015) 987– 88 (quoting Leyva, 716 F.3d at 514). Moreover, since Comcast, the Ninth Circuit has “reaffirmed that damage calculations alone cannot defeat class certification.” Id. at 987.

As discussed above, the Court has found that class litigation is capable of resolving broad issues of liability in this case. The Court maintains the authority to decertify the class at any stage prior to judgment; thus, even if decertification is required at a later date due to individualized damages calculations, the Court is satisfied that these calculations alone do not defeat class certification at this stage. See Aichele v. City of Los Angeles, 314 F.R.D. 478, 496 (C.D. Cal. 2013) (“Because a court may modify its certification order at any time prior to final judgment, the fact that later developments in this case may render the class mechanism inappropriate does not undermine its usefulness at this stage, when Plaintiffs seeks to establish alleged constitutional violations based on uniform, broadly applied policies affecting each class member equally.”).

F. Whether the PLRA Precludes a Finding of Predominance

The Roy Defendants next argue that the Prison Litigation Reform Act (“PLRA”), which prevents current inmates from recovering emotional distress damages without a showing of physical injury, defeats class certification here. (See Roy Opp’n at 29.) According to the Roy Defendants, the Roy Plaintiffs’ proposed classes explicitly refer to

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UNITED STATES DISTRICT COURT

CENTRAL DISTRICT OF CALIFORNIA

CIVIL MINUTES – GENERAL

Case No. Title

CV 12-09012-BRO (FFMx) CV 13-04416-BRO (FFMx)

Date September 9, 2016

DUNCAN ROY ET AL. V. COUNTY OF LOS ANGELES ET AL.

GERARDO GONZALEZ V. IMMIGRATION AND CUSTOMS ENFORCEMENT

ET AL.

current inmates and those who may be incarcerated in the future. (Id.) Therefore, these class members would be bound by the damages limitations in the PLRA. (Id.) The Court disagrees. As the Roy Plaintiffs argue, the proposed classes are limited to those who were detained “solely on the basis of immigration detainers,” not on criminal charges.11 (Roy Reply at 15.) Those detained based on immigration detainers are not “prisoners” for the purposes of the PLRA. See Agyeman, 296 F.3d at 886 (holding that immigration detainees are not “prisoners” within the meaning of the PLRA). Moreover, even if there were limitations on damages for some class members, as discussed above, these damages limitations would not be enough to defeat class certification. See Aichele, 314 F.R.D. at 496.

G. Whether Common Causation Questions Predominate
Finally, the Roy Defendants argue that common questions regarding causation do not predominate. (See Roy Opp’n at 30–31.) To recover for constitutional violations under 42 U.S.C. § 1983, as the Roy Plaintiffs seek to do here, the Roy Plaintiffs must: (1) identify a specific government policy, practice, or custom; (2) establish that the

11 The Court acknowledges the difficulty that arises from the No-Bail Class. The No-Bail Class applies to all inmates who were held on charges and who had a no-bail indicator placed on their file. However, as the Roy Defendants noted, not all inmates who had a no-bail notation placed on them attempted to post bail. Thus, those who did not attempt to post bail were not retained solely based on the immigration detainer; rather, they remained incarcerated based on the criminal charges against them. These class members would be subject to the damages limitations of the PLRA. See Agyeman v. I.N.S., 296 F.3d 871, 886 (9th Cir. 2002) (“As defined in the PLRA, a ‘prisoner’ is ‘any person incarcerated or detained in any facility who is accused of, convicted of, sentenced of, or adjudicated delinquent for, violations of criminal law or the terms and conditions of parole, probation, pretrial released, or diversionary program.’” (quoting 28 U.S.C. § 1915(h)). Still, as addressed above, these individualized damages determinations, on their own, are not enough to defeat class certification.

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UNITED STATES DISTRICT COURT

CENTRAL DISTRICT OF CALIFORNIA

Case No. Title

CIVIL MINUTES – GENERAL

CV 12-09012-BRO (FFMx) CV 13-04416-BRO (FFMx)

Date September 9, 2016

DUNCAN ROY ET AL. V. COUNTY OF LOS ANGELES ET AL.

GERARDO GONZALEZ V. IMMIGRATION AND CUSTOMS ENFORCEMENT

ET AL.

policy, practice, or custom exists; and, (3) establish a causal nexus between the constitutional violation and the government conduct. See Monell v. Dep’t of Soc. Servs. of N.Y., 436 U.S. 658, 694 (1978). According to the Roy Defendants, each class member will require a separate trial and be required to prove that the government policy actually caused a violation of the class member’s rights. (See Roy Opp’n at 31.) Therefore, the Roy Defendants claim that these individual inquiries defeat class certification. (Id.) However, courts frequently certify classes pursuant to § 1983 claims. See, e.g., Thomas v. Baca, 231 F.R.D. 397 (C.D. Cal. 2005) (granting class certification for § 1983 action brought by current jail detainees); Otero v. Dart, 306 F.R.D. 197, 208 (N.D. Ill. 2014) (certifying class based on claim of unreasonable detainer by sheriff’s office). Thus, the Court is not persuaded that causation inquiries will be so individualized as to predominate. Rather, if the Roy Plaintiffs are able to establish that the alleged policy controlled the Roy Defendants’ detainment decisions, the policy itself may satisfy the causation requirement.

ii. Whether Class Action Litigation is the Superior Way to Proceed

“In determining superiority, courts must consider the four factors of Rule 23(b)(3).” Zinser, 253 F.3d at 1190. Rule 23(b)(3)’s four factors are: (1) the class members’ interests in individually controlling the prosecution in separate actions; (2) the extent and nature of any litigation concerning the controversy that has already begun by the class members; (3) the desirability (or lack thereof) of concentrating the litigation in a particular forum; and, (4) the likely difficulties in managing a class action. See Fed. R. Civ. P. 23(b)(3). “A consideration of these factors requires the court to focus on the efficiency and economy elements of the class action so that cases allowed under subdivision (b)(3) are those that can be adjudicated most profitably on a representative basis.” Zinser, 253 F.3d at 1190 (citation omitted).

The Roy Defendants argue that the Roy Plaintiffs “have not articulated how this case can manageably be litigated while preserving County Defendants’ due process and fair trial rights.” (Roy Opp’n at 32.) According to the Roy Defendants, the only way in which the Roy Plaintiffs will be able to proceed is to put on evidence from a certain

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LINK:

UNITED STATES DISTRICT COURT

CENTRAL DISTRICT OF CALIFORNIA

Case No. Title

CIVIL MINUTES – GENERAL

CV 12-09012-BRO (FFMx) CV 13-04416-BRO (FFMx)

Date September 9, 2016

DUNCAN ROY ET AL. V. COUNTY OF LOS ANGELES ET AL.

GERARDO GONZALEZ V. IMMIGRATION AND CUSTOMS ENFORCEMENT

ET AL.

number of inmates to allow the jury to extrapolate liability to the rest of the class. (Roy Opp’n at 33.) This “trial by formula” method was rejected by the Supreme Court in WalMart Stores. See Stone v. Adv. Am., 278 F.R.D. 562, 566 n.1 (S.D. Cal. 2011) (noting that the Supreme Court “disapproved” of “cases that allowed ‘trial by formula’”). However, the Roy Plaintiffs have not indicated that they intend to use a trial by formula method to determine liability. Rather, the Roy Plaintiffs explain that, based on the testimony of their expert, Dr. Brian Kriegler, they will be able to review LASD’s data from its online databases and identify those inmates who were held beyond their expected release date based solely on the basis of an immigration detainer. (See Roy Mot. at 33; Kriegler Decl. at 8–9.) This data can then be cross-referenced to excludes those inmates who had final orders of removal. (Roy Mot. at 33.) Further, and as addressed above, even if there is no uniform way to calculate damages in this case, the individual calculation of damages is not enough to defeat class certification. See Aichele, 314 F.RD. at 496. Thus, the Court is not persuaded by the Roy Defendants’ argument.

As to the other factors, the Court agrees with the Roy Plaintiffs that class litigation is the superior way to handle this litigation. First, each class member has a limited interest in individually bringing their own action as the damages arising from each constitutional violation are not significant. See Zinser, 253 F.3d at 1190 (“Where damages suffered by each putative class member are not large, this factor weighs of favor of certifying a class action.”). As to the second factor, neither party references, and the Court is unaware of, any other litigation that is already pending challenging LASD’s policies other than the related Gonzalez action. Third, it is practical to bring this case in this district as it challenges the policies of local law enforcement. And finally, as addressed above, this case appears to be manageable, as the Roy Plaintiffs have presented methods of determining class members based on the electronic databases of LASD and ICE records. (See Roy Mot. at 32–34.) Therefore, the Court finds that class litigation is the superior way of proceeding with this action.

5. Whether the Gonzalez Plaintiffs Have Satisfied Rule 23(b)(2)

The Gonzalez Plaintiffs claim that certification under Rule 23(b)(2) is appropriate as they seek to have three specific policies found unlawful and that a decision in their

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LINK:

UNITED STATES DISTRICT COURT

CENTRAL DISTRICT OF CALIFORNIA

Case No. Title

CIVIL MINUTES – GENERAL

CV 12-09012-BRO (FFMx) CV 13-04416-BRO (FFMx)

Date September 9, 2016

DUNCAN ROY ET AL. V. COUNTY OF LOS ANGELES ET AL.

GERARDO GONZALEZ V. IMMIGRATION AND CUSTOMS ENFORCEMENT

ET AL.

favor will apply to all class members. (Gonzalez Mot. at 23–24.) The Gonzalez Defendants’ primary argument against certification of the Gonzalez Plaintiffs’ claims is that any relief that the Gonzalez Plaintiffs seek is now moot because ICE has created a new detention program taking the place of the program which Plaintiffs challenge. (Gonzalez Opp’n at 23–24.) Specifically, ICE created and has been using detainer forms that expressly state that ICE has probable cause that the individual is a removable alien and expressing the basis for that determination. (Gonzalez Opp’n at 23.) Additionally, ICE has directed and begun training its agents that a return of “Foreign Born-No Match” should not lead to the issuance of a detainer, but should lead to an interview with the subject. (Gonzalez Opp’n at 24.) As addressed above, however, voluntary policy changes do not moot class claims. See Knox, 132 S. Ct. at 2287. Thus, even though the Gonzalez Defendants present evidence indicating that ICE has effectively changed its policy, the Court finds that this is not enough to render the Gonzalez Plaintiffs’ claims moot.

The Court agrees with the Gonzalez Plaintiffs that their claims are suitable to be decided on a class-wide basis as the policies challenged equally affected all members of the class. Further, as with the Roy Plaintiffs’ Equitable Relief Classes, the Court recognizes that this conclusion is particularly appropriate given the common use of Rule 23(b)(2) in certifying civil rights class actions. Accordingly, the Court finds that the Gonzalez Plaintiffs have satisfied Rule 23(b)(2) as to the Probable Cause and Statutory Subclasses.

VII. CONCLUSION

In light of the foregoing, Plaintiffs’ Motions for Class Certification are GRANTED in part and DENIED in part. Specifically, the Court certifies the following of the Roy Plaintiffs’ proposed classes: (1) False Imprisonment Equitable Relief Class; (2) Gerstein Equitable Relief Class; (3) False Imprisonment Damages Class (and the included state law subclass); (4) Post-48 Hour Gerstein Subclass (and the included state law subclass); (5) Investigative Detainer Class (and the included state law subclass); (6) No-Bail Notation Class (and the included state law subclass); and, (7) NoMoney Bail Subclass (and the included state law subclass). The Court certifies the

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#:2650

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UNITED STATES DISTRICT COURT

CENTRAL DISTRICT OF CALIFORNIA

Case No. Title

CIVIL MINUTES – GENERAL

CV 12-09012-BRO (FFMx) CV 13-04416-BRO (FFMx)

Date September 9, 2016

DUNCAN ROY ET AL. V. COUNTY OF LOS ANGELES ET AL.

GERARDO GONZALEZ V. IMMIGRATION AND CUSTOMS ENFORCEMENT

ET AL.

following of the Gonzalez Plaintiffs’ proposed classes: (1) Judicial Determination Class (limited to those who were detained for more than forty-eight hours without receiving a judicial determination of probable cause); (2) Probable Cause Subclass; and, (3) Statutory Subclass. The Court declines to certify the Roy Plaintiffs’ proposed Gerstein Class.

IT IS SO ORDERED.

:

Initials of Preparer

ah

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UNITED STATES DISTRICT COURT CENTRAL DISTRICT OF CALIFORNIA

LINK:

CIVIL MINUTES -GENERAL

Case No. Title

CV 12-09012-BRO (FFMx) c/w CV 13-04416-BRO (FFMx)

Date Jllile 12, 201 7

DUNCAN ROY ET AL. V. COUNTY OF LOS ANGELES ET AL.

GERARDO GONZALEZ V. IMMIGRATION AND CUSTOMS ENFORCEMENT

ET AL.

Present: The Honorable BEVERLY REID O'CONNELL, United States District Judge

Renee A. Fisher

Not Present

NIA

Deputy Clerk

Court Rep01i er

Tape No.

Attom eys Present for Plaintiffs:

Attom eys Present for Defendants:

Not Present

Not Present

Proceedings:

(IN CHAMBERS)

ORDER RE PLAINTIFFS' MOTION FOR PARTIAL SUMMARY JUDGMENT [219]

I. INTRODUCTION

Currently pending before the Court is Plaintiffs Geraldo Gonzalez and Simon Chinivizyan (collectively, "Plaintiffs") Motion for Partial Summary Judgment as to the Judicial Determination Class.1 (See Dkt. No. 219 (hereinafter, "Mot.").) After considering the papers filed in support of and in opposition to the instant Motion as well as oral argument of counsel at the hearing held on April 24, 201 7, for the following reasons, the Court DENIES Plaintiffs' Motion and, instead, GRANTS summary judgment in favor of Defendants.

II

II

1 This action involves two cases that have been consolidated: Duncan Roy et al. v. County ofLos Angeles eta/., No. 12-cv-0901 2-BRO-FFM and Gonzalez v. Immigration & Customs Enforcement eta/., No. 13-cv-0441 6-BRO-FFM. The instant Motion is brought only on behalf of the Plaintiffs in the Gonzalez action, Geraldo Gonzalez and Simon Chinivizyan. (See Mot.) Defendants in the Gonzalez action are Immigration and Customs Enforcement ("ICE"), Thomas Winkowski, Acting Director of ICE, David Marin, Acting Field Office Director for the Los Angeles District of ICE, and David Palmatier, the Unit Chief for the Law Enforcement Service Center ofiCE (collectively, "Defendants"). (See Gonzalez, No. 13-cv-0441 6-BRO-FFM , ECF No. 44 (hereinafter, "Gonzalez TAC") ~~ 15-1 8.)

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CIVIL MINUTES -GENERAL

Case No. Title

CV 12-09012-BRO (FFMx) c/w CV 13-04416-BRO (FFMx)

Date Jllile 12, 2017

DUNCAN ROY ET AL. V. COUNTY OF LOS ANGELES ET AL.

GERARDO GONZALEZ V. IMMIGRATION AND CUSTOMS ENFORCEMENT

ET AL.

II. BACKGROUND

A. Factual Background

Gonzalez is a twenty-five-year-old American citizen and Los Angeles, California resident. (Gonzalez TAC ~ 11 ; see also Statement of Uncontroverted Facts (Dkt. No. 225-1) (hereinafter, "SUF") ~ 14.)2 At the time Gonzalez joined the instant action, he
was being held in pretrial detention in a Los Angeles County jail, and he was subject to an ICE detainer. (Gonzalez TAC ~ 12; see also SUF ~ 16.) Chinivizyan is a twenty-oneyear-old American citizen who resides in Burbank, California. (Gonzalez TAC ~ 13; see also SUF ~ 15.) At the time he joined the lawsuit, he was being held in a Los Angeles County jail pursuant to an immigration detainer. (Gonzalez TAC ~ 14; see also SUF ~ 17.)

Relevant to the instant Motion, the Gonzalez Plaintiffs claim that ICE's policy of issuing immigration detainers without providing a prompt judicial probable cause determination violates the Fourth Amendment. (See Gonzalez TAC ~~ 112-13.) An immigration detainer is a "fill-in-the-blank" form that ICE provides to a law enforcement agency requesting that the agency detain a person already in its custody after the individual would otherwise be released in order to give ICE extra time to assume custody. (SUF ~ 1.) Immigration detainers are unsworn documents issued by individual immigration agents that are not reviewed by any judge, magistrate, or immigration judge before or after they are issued. (SUF ~~ 2-4.) Even after the receiving law enforcement agency takes custody of an individual who is detained on an immigration detainer, the

2 The Court refers to the version of the Statement of Uncontroverted Facts Defendants submit along with their Opposition to Plaintiffs' Motion as it includes both Plaintiffs' proffered lmcontrovetted fact and Defendants' response.

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LINK:

Case No. Title

CIVIL MINUTES -GENERAL

CV 12-09012-BRO (FFMx) c/w CV 13-04416-BRO (FFMx)

Date Jllile 12, 2017

DUNCAN ROY ET AL. V. COUNTY OF LOS ANGELES ET AL.

GERARDO GONZALEZ V. IMMIGRATION AND CUSTOMS ENFORCEMENT

ET AL.

agency does not take the individual before a judge, magistrate, or immigration judge to determine whether there is probable cause for his detention.3 (SUF ,-[ 5.)

Likewise, once an individual is taken into ICE custody based on an immigration detainer, ICE does not bring her before a judge, magistrate, or immigration judge to determine whether there is probable cause to detain him. (SUF ,-[ 8.) Instead, ICE brings the individual before an ICE agent (who may be the arresting agent) to process the individual into ICE custody. (SUF ,-[ 9.) The ICE agent then determines whether to issue a charging document-i.e., a Notice to Appear ("NTA")-and determines whether to keep the person in custody or release him on bond. (SUF ,-[ 10.) An individual may be detained for up to forty-eight hours (in addition to any time he was detained on the ICE detainer by the receiving law enforcement agency) before being brought before an ICE agent for the charging and bond determination. (SUF ,-[,-[ 11-12 .) An individual held on an ICE detainer "generally does not see an immigration judge for weeks after his arrest on the detainer." (SUF ,-[ 13.)

B. Procedural Background

Gonzalez filed his initial Complaint on June 19, 2013. (Gonzalez, No. 13-cv04416-BRO-FFM, ECF No. 1.) On July 10, 2013, Gonzalez filed a First Amended Complaint, which added Chinivizyan as a named Plaintiff. (Gonzalez, No. 13-cv-04416BRO-FFM, ECF No. 10.) After the Court granted Plaintiffs leave to amend the Complaint further, they filed a Second Amended Complaint on September 9, 2013. (Gonzalez , No. 13-cv-04416-BRO-FFM, ECF No. 24.) On March 10, 2014, Defendants filed a Motion to Dismiss, (Gonzalez , No. 13-cv-4416-BRO-FFM, ECF No. 31), which the Court granted on July 28, 2014, though the Court permitted Plaintiffs to amend their Complaint, (Gonzalez , No. 13-cv-04416-BRO-FFM, ECF No. 42).

3 At the time Plaintiffs brought this action, ICE detainers pmp01ted to authorize the receiving agency to detain individuals for up to fo1ty-eight hom s, excluding weekends and holidays. (SUF ~ 6.) In 2015, however, ICE revised the detainer fonn to eliminate the weekend and holiday exclusion. (SUF ~ 7.)

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LINK:

Case No. Title

CIVIL MINUTES -GENERAL

CV 12-09012-BRO (FFMx) c/w CV 13-04416-BRO (FFMx)

Date Jllile 12, 2017

DUNCAN ROY ET AL. V. COUNTY OF LOS ANGELES ET AL.

GERARDO GONZALEZ V. IMMIGRATION AND CUSTOMS ENFORCEMENT

ET AL.

Plaintiffs filed the operative Third Amended Complaint on August 18, 2014. (Gonzalez TAC.) The same day, they also moved for class certification. (Dkt. No. 45.) On September 15, 2014, Defendants filed a Motion to Dismiss for Lack of Jurisdiction. (Gonzalez , No. 13-cv-04416-BRO-FFM, ECF No. 53.) On October 24, 20 14, the Court granted Defendants' Motion to Dismiss in part and denied Plaintiffs' Motion for Class Certification without prejudice. (Gonzalez, No. 13-cv-04416-BRO-FFM, ECF No. 61.) On February 4, 2015, the Gonzalez Defendants filed their Answer to the Third Amended Complaint. (Gonzalez, No. 13-cv-04416-BRO-FFM, ECF No. 73.) On July 28, 20 15, the Court consolidated the Roy and Gonzalez actions. (Gonzalez, No. 13-cv-04416-BROFFM, ECF No. 95.)

On May 9, 2016, Plaintiffs filed a Motion for Class Certification. (See Dkt. No. 152.) The Gonzalez Plaintiffs moved to certify one class and two subclasses seeking equitable relief pursuant to Rule 23(b)(2) and defined as follows:

(1) Judicial Determination Class: All current and future persons who are subject to an immigration detainer issued by an ICE agent located in the Central District of California, where the detainer is not based upon a final order of removal signed by an immigration judge or the individual is not subject to ongoing removal proceedings. Plaintiffs proposed Judicial Determination Class will seek rescission of class members' detainers and a declaration that Defendants' issuance of detainers against class members without providing a judicial determination of probable cause violates the Fourth Amendment.

(2) Probable Cause Subclass: All members of the Judicial Determination Class for whom ICE has issued an immigration detainer based solely on checks for the individual in government databases. The Probable Cause Subclass, to which Plaintiff Gonzalez belongs will seek rescission of subclass members' detainers and a declaration that Defendants ' issuance of detainers against subclass members in reliance on database checks alone violates the Fourth Amendment.

(3) Statutory Subclass: All members of the Judicial Determination Class for whom ICE did not issue an administrative warrant of arrest at the time it issued

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UNITED STATES DISTRICT COURT CENTRAL DISTRICT OF CALIFORNIA

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CIVIL MINUTES -GENERAL

Case No. Title

CV 12-09012-BRO (FFMx) c/w CV 13-04416-BRO (FFMx)

Date Jllile 12, 2017

DUNCAN ROY ET AL. V. COUNTY OF LOS ANGELES ET AL.

GERARDO GONZALEZ V. IMMIGRATION AND CUSTOMS ENFORCEMENT

ET AL.

an immigration detainer. The Statutory Subclass, to which both Plaintiffs belong, will seek rescission of subclass members' detainers and a declaration that Defendants' issuance of detainers against subclass members without making an individualized determination that the individual is likely to escape before a warrant can be obtained for his arrest violates 8 U.S.C. § 1357(a)(2).

(See Dkt. No. 152 at 10-11.) The Court granted Plaintiffs' Motion, but limited the Judicial Determination Class to only those who have been detained for at least forty-eight hours without receiving a judicial determination of probable cause. (See Dkt. No. 184 at 4 1 - 4 2 .)

On February 22, 2017, Plaintiffs filed the instant Motion, moving for partial summary judgment as to the Judicial Determination Class and ICE' s policy of failing to provide a judicial probable cause determination within forty-eight hours of detention. (See Mot.) Defendants filed their Opposition on March 27, 2017. (See Dkt. No. 225 (hereinafter, "Opp'n").) Plaintiffs replied on April10, 2017. (See Dkt. No. 227-1 (hereinafter, "Reply").)4

Ill. LEGAL STANDARD

Summary judgment is appropriate when, after adequate discovery, the evidence demonstrates that there is no genuine issue as to any material fact and the moving party is entitled to judgment as a matter oflaw. Fed. R. Civ. P. 56. A disputed fact is material where its resolution might affect the outcome of the suit under the governing law . Anderson v. Liberty Lobby Inc. , 477 U.S. 242, 248 (1 986). An issue is genuine if the evidence is sufficient for a reasonable jury to return a verdict for the non-moving party. Id. The moving party bears the initial burden of establishing the absence of a genuine issue of material fact. Celotex Corp. v. Catrett, 477 U.S. 317, 323-24 (1986). The moving party may satisfy that burden by showing "that there is an absence of evidence to support the non-moving party's case." Id. at 325.

4 Along with their Reply, Plaintiffs filed an llilopposed Motion to Exceed Page Limitation, (see Dkt. No. 227), which the Comi granted on April12, 2017, (see Dkt. N o. 230).

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UNITED STATES DISTRICT COURT CENTRAL DISTRICT OF CALIFORNIA

LINK:

Case No. Title

CIVIL MINUTES -GENERAL

CV 12-09012-BRO (FFMx) c/w CV 13-04416-BRO (FFMx)

Date Jllile 12, 2017

DUNCAN ROY ET AL. V. COUNTY OF LOS ANGELES ET AL.

GERARDO GONZALEZ V. IMMIGRATION AND CUSTOMS ENFORCEMENT

ET AL.

Once the moving party has met its burden, the non-moving party "must do more than simply show that there is some metaphysical doubt as to the material facts." Matsushita Elec. Indus. Co. v. Zenith Radio Corp. , 475 U.S. 574, 586 (1 986). Rather, the non-moving party must go beyond the pleadings and identify specific facts that show a genuine issue for trial. Id. at 587. Only genuine disputes over facts that might affect the outcome of the lawsuit will properly preclude the entry of summary judgment. Anderson, 477 U.S. at 248; see also Arpin v. Santa Clara Valley Transp. Agency, 261 F.3d 912, 919 (9th Cir. 2001) (holding that the non-moving party must present specific evidence from which a reasonable jury could return a verdict in its favor). A genuine issue of material fact must be more than a scintilla of evidence, or evidence that is merely colorable or not significantly probative. Addisu v. Fred Meyer, Inc. , 198 F.3d 1130, 1134 (9th Cir. 2000).

A court may consider the pleadings, discovery, and disclosure materials, as well as any affidavits on file. Fed. R. Civ. P. 56(c)(2). Where the moving party's version of events differs from the non-moving party's version, a court must view the facts and draw reasonable inferences in the light most favorable to the non-moving party. Scott v. Harris, 550 U .S. 372, 378 (2007).

Although a court may rely on materials in the record that neither party cited, it need only consider cited materials. Fed. R. Civ. P. 56(c)(3). Therefore, a court may properly rely on the non-moving party to identify specifically the evidence that precludes summary judgment. Keenan v. Allan, 91 F.3d 1275, 1279 (9th Cir. 1996). The district court is "not required to comb the record to find some reason to deny a motion for summary judgment." See Forsberg v. Pac. Nw. Bell Tel. Co. , 840 F.2d 1409, 1418 (9th Cir. 1988); see also Carmen v. S.F. Unified Sch. Dist., 237 F.3d 1026, 1031 (9th Cir. 2001) ("The district court need not examine the entire file for evidence establishing a genuine issue of fact , where the evidence is not set forth in the opposing papers with adequate references so that it could conveniently be found.").

The evidence presented by the parties must be admissible. Fed. R. Civ. P. 56(e). Conclusory or speculative testimony in affidavits and moving papers is insufficient to raise a genuine issue of fact and defeat summary judgment. Thornhill's Publ 'g Co. v. GTE Corp. , 594 F.2d 730, 738 (9th Cir. 1979). Conversely, a genuine dispute over a

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CIVIL MINUTES -GENERAL

Case No. Title

CV 12-09012-BRO (FFMx) c/w CV 13-04416-BRO (FFMx)

Date Jllile 12, 2017

DUNCAN ROY ET AL. V. COUNTY OF LOS ANGELES ET AL.

GERARDO GONZALEZ V. IMMIGRATION AND CUSTOMS ENFORCEMENT

ET AL.

material fact exists if there is sufficient evidence supporting the claimed factual dispute, requiring a judge or jury to resolve the differing versions of the truth. Anderson, 477 U.S. at 253.

The Ninth Circuit has held that, where no genuine issues of material fact exist, a sua sponte grant of summary judgment in favor of the non-moving party is appropriate in some circumstances. "Sua sponte grants of summary judgment are only appropriate if the losing party has 'reasonable notice that the sufficiency of his or her claim will be in issue. "' United States v. 14.02 Acres ofLand More or Less in Fresno Cty., 547 F.3d 943, 955 (9th Cir. 2008) (citing Greene v. Solano Cty. Jail, 513 F.3d 982, 990 (9th Cir. 2008)); see also Celotex Corp. , 477 U.S. at 326 ("[D]istrict courts are widely acknowledged to possess the power to enter summary judgments sua sponte, so long as the losing party was on notice that she had come forward with all of her evidence."). "Notice need not be explicit .... A party is ' fairly appraised' that the court will in fact be deciding a summary judgement [sic] motion if that party submits matters outside the pleadings to the judge and invites consideration of them." 14.02 Acres ofLand, 547 F.3d at 955 (citing In re Rothery, 143 F.3d 546, 549 (9th Cir. 1998)).

IV. DISCUSSION

A. The Fourth Amendment's Requirements

The Fourth Amendment protects against "unreasonable searches and seizures." U.S. Const. amend. IV. The Supreme Court has held that the Fourth Amendment's protections require law enforcement to have probable cause before detaining a person. See Terry v. Ohio, 392 U.S. 1, 38 (1968) ("The infringement on personal liberty of any 'seizure' of a person can only be 'reasonable' under the Fourth Amendment if we require the police to possess 'probable cause' before they seize him."). Probable cause requires "facts and circumstances 'sufficient to warrant a prudent man in believing that the (suspect) had committed or was committing an offense. "' Gerstein v. Pugh, 420 U.S. 103, 111 (1975) (quoting Beck v. Ohio, 379 U.S. 89, 91 (1964)). "To implement the Fourth Amendment's protection against unfounded invasions of liberty and privacy, the Court has required that the existence ofprobable cause be decided by a neutral and detached magistrate whenever possible." ld. at 112. While ideally law enforcement

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Case No. Title

CIVIL MINUTES -GENERAL

CV 12-09012-BRO (FFMx) c/w CV 13-04416-BRO (FFMx)

Date Jllile 12, 2017

DUNCAN ROY ET AL. V. COUNTY OF LOS ANGELES ET AL.

GERARDO GONZALEZ V. IMMIGRATION AND CUSTOMS ENFORCEMENT

ET AL.

would obtain a warrant before every arrest, the Supreme Court "has never invalidated an arrest supported by probable cause solely because the officers failed to secure a warrant." Id. at 113. However, in Gerstein, the Court held that in cases where law enforcement does not obtain a warrant prior to arrest, "the Fourth Amendment requires a timely judicial determination of probable cause as a prerequisite to detention." Id. at 126.

In County ofRiverside v. Mclaughlin , 500 U.S. 44 (1 991), the Court examined what constitutes a "timely judicial determination of probable cause" following arrest. There, the Court determined that any probable cause determination within forty-eight hours is reasonable. Id. at 56 ("[W]e believe that a jurisdiction that provides judicial determinations of probable cause within 48 hours of arrest will, as a general matter, comply with the promptness requirement of Gerstein."). But " [w]here an arrested individual does not receive a probable cause determination within 48 hours, the calculus changes. In such a case, the arrested individual does not bear the burden of proving an unreasonable delay." Id. at 57. Instead, the government bears the burden of demonstrating "the existence of a bona fide emergency or other extraordinary circumstance." !d.

It is under this framework that Plaintiffs move for partial summary judgment. Plaintiffs contend that Defendants have violated their Fourth Amendment rights by detaining them pursuant to an ICE detainer without ever providing them with a judicial determination of probable cause for their detainment, thereby violating County of Riverside's forty-eight judicial determination requirement. Defendants argue that judicial review is not required in the immigration context. At the outset, the Court notes that neither Gerstein nor County ofRiverside addressed the "judicial" portion of the probable cause review requirement or the difference between the Fourth Amendment's requirements in a civil immigration proceeding compared to a criminal proceeding; rather, both cases addressed whether third-party review of probable cause was required and the timing of any such review in criminal cases. Therefore, the issue here is one that is not directly answered by Gerstein or County ofRiverside. For the following reasons, the Court finds that Defendants' failure to submit ICE officers' probable cause determinations for review by an immigration, magistrate, or federal district court judge is not unconstitutional.

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CIVIL MINUTES -GENERAL

Case No. Title

CV 12-09012-BRO (FFMx) c/w CV 13-04416-BRO (FFMx)

Date Jllile 12, 2017

DUNCAN ROY ET AL. V. COUNTY OF LOS ANGELES ET AL.

GERARDO GONZALEZ V. IMMIGRATION AND CUSTOMS ENFORCEMENT

ET AL.

B. The Immigration Statutory Scheme

ICE is an agency within the Department of Homeland Security that is responsible for identifying, apprehending, and removing illegal aliens from the country. See Arizona v. United States, 132 S. Ct. 2492, 2499-2500 (2012). The Immigration and Nationality Act (the "INA") grants ICE the authority to arrest aliens and detain them prior to removal. See 8 U.S.C. §§ 1226, 1231, 1357. Specifically, the INA provides that " [o]n a warrant issued by the Attorney General, an alien may be arrested and detained pending a decision on whether the alien is to be removed from the United States." 8 U.S.C. § 1226(a). An ICE officer may arrest an alien without a warrant "if he has reason to believe that the alien so arrested is in the United States in violation of any ... law or regulation and is likely to escape before a warrant can be obtained for his arrest," so long as the alien is taken "without unnecessary delay for examination before an officer of [ICE] having authority to examine aliens as to their right to enter or remain in the United States." See 8 U.S.C. § 1357(a)(2).

The Department of Homeland Security has issued regulations implementing these sections of the INA. Under these regulations, an alien arrested without a warrant must "be examined by an officer other than the arresting officer," unless no other officer is available and finding another officer "would entail unnecessary delay." 8 C.F.R. § 287.3(a). "If the examining officer is satisfied that there is prima facie evidence that the arrested alien was entering, attempting to enter, or is present in the United States in violation of the immigration laws, the examining officer will refer the case to an immigration judge for further inquiry ...." 8 C.F.R. § 287.3(b). Therefore, it appears that the Legislature has permitted an ICE officer to determine probable cause on his or her own and has permitted review of the arresting ICE officers' probable cause determination by another ICE officer.5 See id.

5 At oral argument, Plaintiffs ' collilsel cited the Seventh Circuit's decision in Arias v. Rogers, 676 F.2d 1139, 1142 (7th Cir. 1982), for the proposition that§ 1357 requires a detainee be brought before an immigration judge for a probable cause detennination. In that case, the comt noted that § 1357(a)(2)'s requirement that a detainee be taken "before an officer of the Service having authority to examine aliens as to their right to enter or remain in the United States," refened to immigration judges. See id. ("The

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Case No. Title

CIVIL MINUTES -GENERAL

CV 12-09012-BRO (FFMx) c/w CV 13-04416-BRO (FFMx)

Date Jllile 12, 2017

DUNCAN ROY ET AL. V. COUNTY OF LOS ANGELES ET AL.

GERARDO GONZALEZ V. IMMIGRATION AND CUSTOMS ENFORCEMENT

ET AL.

Here, as part of the arrest and detainment process, ICE issues immigration detainers. (See Opp'n at 8.) The immigration detainer forms Plaintiffs provide (Forms I247D and I-247X) require ICE officers to indicate that they have probable cause to detain the individual as a removable alien and the basis for their probable cause determination.6 (See Declaration of Jennifer Paquarella (Dkt. No. 221), Exs. B, C.) Defendants concede, however, that ICE officers' probable cause determinations are never judicially reviewed. (See SUF ~~ 2, 8.) Instead, pursuant to the relevant regulations, a detainee is taken before an ICE agent (sometimes the arresting agent) for processing into physical custody. (See SUF ~ 9.) Plaintiffs claim that the failure to seek judicial review of these determinations constitutes a Fourth Amendment violation.

II

II

reference is to a special inqui1y officer, also called an immigration judge."). In support, the Arias comi cited 8 C.F.R. § 242.8(a), see id.- a provision that no longer appears in the Code of Federal Regulations. Instead, as addressed above, 8 C.F.R. § 287.3(a) now provides that another ICE officer or, in ce1tain circumstances, the atTesting officer, may examine the detainee. See 8 C.F.R. § 287.3(a). Fmther, that regulation goes on to provide that " [i]fthe examining officer is satisfied that there is prima facie evidence that the atTested alien was entering, attempting to enter, or is present in the United States in violation of the immigration laws, the examining officer will refer the case to an immigration judge." 8 C.F.R. § 287.3(b). This suggests to the Comt that the examining officer and an immigxationjudge at·e considered two different individuals. Thus, even if§ 1357(a) at one point required an immigration judge to review the probable cause determination, it does not appear that it or the conesponding regulations include any such requirement today.

6 Defendants indicate that ICE's procedmes have recently changed and there is now an additional immigration detainer f01m, F01m I-247A, that also requires ICE officers to indicate how they have developed probable cause. (See Opp 'n at 9.) As explained in the Comi's Order certifying Plaintiffs' proposed classes, any subsequent changes in practices do not moot Plaintiffs' claims. (See Dkt. No. 184 at 16-17 .) Moreover, as to the Judicial Dete1mination Class, Defendants do not indicate that their practices have changed such that they now provide a judicial dete1mination of probable cause. Thus, Plaintiff's Fomt h Amendment claim does not appear to be moot, regardless.

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Case No. Title

CV 12-09012-BRO (FFMx) c/w CV 13-04416-BRO (FFMx)

Date Jllile 12, 2017

DUNCAN ROY ET AL. V. COUNTY OF LOS ANGELES ET AL.

GERARDO GONZALEZ V. IMMIGRATION AND CUSTOMS ENFORCEMENT

ET AL.

c. Whether the Fourth Amendment Requires Judicial Review of Probable
Cause

1. Defendants' Arguments

Defendants contend that ICE's process comports with the Fourth Amendment because "[t]he Fourth Amendment has long permitted civil immigration arrests and detentions notwithstanding the fact that the probable-cause determination for such violations are made by administrative officers rather than a neutral magistrate."7 (Opp'n at 11.) Defendants do not contend that the Fourth Amendment is inapplicable in the immigration context; rather, they argue only that the Fourth Amendment's protections as outlined in Gerstein and County ofRiverside are satisfied in the immigration context without judicial review of ICE officers' probable cause determinations. (See Opp'n at 11-12.)

Defendants rely on Abel v. United States, 362 U .S. 217, 230-34 (1960), in which the petitioner argued that the administrative arrest warrant issued against him was unconstitutional. There, officers of the Immigration and Naturalization Service (the "INS"-ICE's predecessor) arrested the petitioner in a hotel room in New York City after he was suspected of espionage and believed to be an alien residing illegally in the United

7 Defendants spend a portion of their Opposition addressing the constitutionality of the detainment and atTest process and noting that detention based on an ICE detainer "does not violate an alien 's Fourth Amendment rights" because an ICE officer provides the reason for his probable cause detennination on the detainer fonns. (See Opp'n at 7-11 .) Thus, according to Defendants, "ICE 's determination and statement of probable cause distinguishes ICE's issuance of a detainer and detention based upon it from investigative seizures based on less than probable cause." (Opp'n at 10.) This ru·gument, however, is outside the scope of the instant Motion. Plaintiffs ru·e moving for prut ial sUIIllnaty judgment only as to the Judicial Detennination Class. Thus, the only issue addressed in Plaintiffs' Motion is whether the Fomih Amendment requires a judicial determination of probable cause within foiiy-eight hours for those detained pursuant to an ICE detainer. Plaintiffs' Motion does not address at this stage whether detainment pursuant to an ICE detainer is generally constitutional. Fmther, at oral ru·gument, defense collilsel conceded that this discussion served primru·ily as a review of the hist01y of immigration detainers. Accordingly, the Comi does not address Defendants ' ru·guments on this point.

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UNITED STATES DISTRICT COURT CENTRAL DISTRICT OF CALIFORNIA

Page ID LINK:

CIVIL MINUTES -GENERAL

Case No. Title

CV 12-09012-BRO (FFMx) c/w CV 13-04416-BRO (FFMx)

Date Jllile 12, 2017

DUNCAN ROY ET AL. V. COUNTY OF LOS ANGELES ET AL.

GERARDO GONZALEZ V. IMMIGRATION AND CUSTOMS ENFORCEMENT

ET AL.

States. Id. at 221. Though the Court declined to fully address the issue,8 it observed that " [s]tatutes authorizing administrative arrest to achieve detention pending deportation proceedings have the sanction of time." Id. at 230. The Court explained that the version of the INA in effect at the time gave "authority to the Attorney General or his delegate to arrest aliens pending deportation proceedings under an administrative warrant, not a judicial warrant within the scope of the Fourth Amendment." Id. at 232. Thus, as the New York District Director of the INS had issued petitioner's arrest warrant and the Director had sufficient reason to believe that the petitioner was deportable, the Court found that " [t]he arrest procedure ... fully complied with the statute and regulations" at issue. Id. at 232-33.

Moreover, the Court recognized that " [s]tatutes providing for deportation have ordinarily authorized the arrest of deportable aliens by order of executive official" as far back as 1798. Id. at 233. In addition, the Supreme Court has frequently "upheld administrative deportation proceedings shown by the Court's opinion to have been begun by arrests pursuant to such warrants." Id. at 233-34. Thus, based on the Supreme Court's implicit acknowledgement of the validity of administrative arrest warrants, the Court refused to find the petitioner's arrest unlawful. Id. at 234.

Defendants also cite the First Circuit's decision in United States v. Tejada , 255 F.3d 1 (1st Cir. 2001), which the Court finds persuasive.9 There, the defendant was

8 The Court did not directly address whether the adminisu·ative wanant was lmconstitutional because the petitioner had not raised the argument in the lower comt and, in fact, had conceded that his atTest was proper. See Abel, 362 U.S. at 230-31.

9 The patties do not provide-and the Court is llilawat·e of-any Ninth Circuit case addressing this issue. In Flores ex rel. Galvez-Maldonado v. Meese , 942 F.2d 1352 (9th Cir. 1991) (en bane), an en bane panel addressed a case in which a class of alien children at·gued that they were not afforded due process during civil removal proceedings because an INS policy required a child's detention during removal proceedings liDless a pat·ent or guat·dian was able to assume custody. As one patt of its decision, the Comt noted that the patties disputed whether Gerstein or the Supreme Comt's decision in Mathews v. Eldridge, 424 U.S. 319 (1976), which "atticulated a three-factor analysis designed to be applicable generally to questions of due process in conjlmction with adminisu·ative actions," applied. !d. at 1364. The Comt did not decide which standru·d applied, however, because it fmmd the same result lmder either

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Page ID LINK:

Case No. Title

CIVIL MINUTES -GENERAL

CV 12-09012-BRO (FFMx) c/w CV 13-04416-BRO (FFMx)

Date Jllile 12, 2017

DUNCAN ROY ET AL. V. COUNTY OF LOS ANGELES ET AL.

GERARDO GONZALEZ V. IMMIGRATION AND CUSTOMS ENFORCEMENT

ET AL.

indicted pursuant to 8 U.S.C. § 1326(b)(2) for illegal reentry into the United States. Id. at 2. Sixteen days after he was first detained, he was brought before a magistrate judge for an initial appearance. Id. The defendant argued that the court should dismiss his indictment because the government violated Federal Rule of Criminal Procedure 5(a), which requires the government to bring a criminal defendant before a magistrate within forty-eight hours of detainment. Id. (citing Fed. R. Crim. P . 5(a)). Under First Circuit authority, a violation of§ 1326(b)(2) is "a status offense that does not trigger the protections of Rule 5(a) until the criminal process has been initiated against the detained alien." Id. Therefore, the court held that " [t]he requirement that a magistrate evaluate his detention within 48 hours of his arrest [was] ... inapplicable. Instead, his detention was civil in nature and governed by 8 U.S.C. § 1357(a)(2), which empowers INS officials to effect a warrantless arrest ...." Id. at 3 (citation omitted). The court explained that 8 U.S.C. § 1357(a)(2) requires that the alien "be taken 'without unnecessary delay for examination before an officer of the [INS] having authority to examine aliens as to their right to enter or remain in the United States."' !d. (alteration in original) (quoting 8 U.S.C. § 1357(a)(2)). "Thus, to comply with the applicable statute, the arresting authorities needed to bring appellant to an [INS] examining officer, not a magistrate, 'without unnecessary delay.'" Id.

In both cases, the courts differentiated between the requirements of criminal proceedings and those of civil immigration proceedings, in which the Legislature and the executive grant the INS (and now ICE) the authority pursuant to the INA to effect immigration arrests and detainments. Further, in Tejada , the court specifically noted that during immigration civil proceedings pursuant to 8 U .S.C. § 1357(a)(2), an examination before an immigration officer rather than a probable cause review before a magistrate is suffices.

standard. Moreover, the Supreme Court ultimately reversed the Ninth Circuit's decision without reaching the issue of whether Gerstein applies to civil immigration proceedings. See Reno v. Flores , 507 U.S. 292 (1993). Thus, there appears to be no Ninth Circuit case that may still be considered good law that is directly on point.

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UNITED STATES DISTRICT COURT CENTRAL DISTRICT OF CALIFORNIA

Page ID LINK:

Case No. Title

CIVIL MINUTES -GENERAL

CV 12-09012-BRO (FFMx) c/w CV 13-04416-BRO (FFMx)

Date Jllile 12, 2017

DUNCAN ROY ET AL. V. COUNTY OF LOS ANGELES ET AL.

GERARDO GONZALEZ V. IMMIGRATION AND CUSTOMS ENFORCEMENT

ET AL.

Moreover, courts have consistently recognized that immigration proceedings are civil, rather than criminal, in nature and their implementation fall primarily within the purview of the legislative and executive-not the judicial-branches. See Landon v. Plasencia, 459 U.S. 21 , 34 (1982) ("Further, it must weigh heavily in the balance that control over matters of immigration is a sovereign prerogative, largely within the control of the executive and the legislature."); Carlson v. Landon , 342 U.S. 524, 537 (1952) ("Deportation is not a criminal proceeding and has never been held to be punishment. No jury sits. No judicial review is guaranteed by the Constitution."); Sherman v. U.S. Parole Comm 'n, 502 F.3d 869, 878 (9th Cir. 2007) ("Indeed, deportation statutes going back to 1798 'have ordinarily authorized the arrest of deportable aliens by order of an executive official,' evidencing an 'overwhelming historical legislative recognition of the propriety of administrative arrest for deportable aliens."' (quoting Abel, 362 U.S. at 233)); see also Washington v. Trump , _ F.3d _ , No. 17-35105, 2017 WL 992527, at *2 (9th Cir. Mar. 15, 2017) (explaining that the INA delegates broad authority to the executive); Jean v. Nelson, 727 F.2d 957, 976 (11th Cir. 1984) (en bane) (holding that " [t]he discretionary decisions of executive officials in the immigration area" are subject to judicial review, "but the scope of that review is extremely limited"). Therefore, it appears that courts have recognized that the executive and the Legislature have the authority to permit executive-rather than judicial-officers to make probable cause determinations regarding an individual's deportability.

2. Plaintiffs' Arguments

In response, Plaintiffs argue that the Fourth Amendment-including Gerstein and County ofRiverside--clearly apply to civil immigration proceedings because courts have frequently applied the Fourth Amendment to such proceedings.10 (See Reply at 5-6

10 Plaintiffs note that " [i]t is also well settled that removal proceedings must comp01t with the Fifth Amendment 's Due Process Clause." (Reply at 5 n.1 (citing Colmenar v. Immigration & Naturalization Servs., 210 F.3d 967, 971 (9th Cir. 2000)).) According to Plaintiffs, " [s]hould the Court choose to analyze the Judicial Detennination Class's claims llilder the Fifth Amendment, rather than the Fomth, the analysis would be vntually identical." !d. Plaintiffs' Motion raises no argmnents llilder a Fifth Amendment Due Process the01y, however; Plaintiffs mention the Fifth Amendment for the first time in then· Reply. "The district comt need not consider arguments raised for the first time in a reply brief."

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UNITED STATES DISTRICT COURT CENTRAL DISTRICT OF CALIFORNIA

Page ID LINK:

Case No. Title

CIVIL MINUTES -GENERAL

CV 12-09012-BRO (FFMx) c/w CV 13-04416-BRO (FFMx)

Date Jllile 12, 2017

DUNCAN ROY ET AL. V. COUNTY OF LOS ANGELES ET AL.

GERARDO GONZALEZ V. IMMIGRATION AND CUSTOMS ENFORCEMENT

ET AL.

(citing Tejeda-Mata v. Immigration & Naturalization Servs., 626 F.2d 72 1, 725 (9th Cir. 1980); Orhorhaghe v. Immigration & Naturalization Servs., 38 F.3d 488, 499 (9th Cir. 1994)).) Plaintiffs are correct that courts, including the Ninth Circuit, have incorporated certain Fourth Amendment protections into the civil immigration context. See, e.g. , Orhorhaghe, 38 F.3d at 497- 500 (finding that the INS violated the Fourth Amendment by unlawfully seizing a person suspected of being an illegal alien without probable cause). According to Plaintiffs, "Defendants offer no logical reason why the Fourth Amendment's requirements for immigration and criminal arrests, which are identical at the point of arrest, should differ in the period immediately following arrest. Nor has the Ninth Circuit endorsed any such distinction." (Reply at 6-7.) But, again, Defendants are not contending that the Fourth Amendment does not apply; rather, Defendants contend that ICE officers' probable cause determinations and examinations of detainees satisfy the Fourth Amendment's requirements in the civil immigration context.

Further, the Ninth Circuit has recognized a distinction between criminal proceedings and civil immigration proceedings. See Rhoden v. United States, 55 F.3d 428, 432 n.7 (9th Cir. 1995) (per curiam) (noting that civil immigration proceedings stemming from border detentions "involve a distinct set of considerations and require different administrative procedures" than criminal proceedings); see also Arizona, 132 S. Ct. at 2499 ("Removal is a civil, not a criminal, matter. A principal feature of the removal system is the broad discretion exercised by immigration officials."); Flores, 942 F.2d at 1367 (Tang, J., concurring) (finding that Gerstein did not apply in a deportation proceeding because " [d]eportation is a civil, not a criminal, proceeding"), reversed on other grounds by Reno, 507 U.S. 292. The Supreme Court has also held that some Fourth Amendment protections do not apply in civil immigration proceedings. See Immigration & Naturalization Servs. v. Lopez-Mendoza, 468 U.S. 1032, 1050-51 (1984) (plurality) (holding that the Fourth Amendment's exclusionary rule does not apply in civil

Zamani v. Carnes, 491 F.3d 990, 997 (9th Cir. 2007). Moreover, Plaintiffs concede that the analysis would be ''vntually identical" llilder either Amendment. (Reply at 5.) In addition, when asked at oral argument, Plaintiffs ' cmmsel did not indicate that the result would be different llilder the Fifth Amendment. Therefore, it appears that, even if the Comt did consider Plaintiffs ' claim llilder the Fifth Amendment, the outcome would not change.

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UNITED STATES DISTRICT COURT CENTRAL DISTRICT OF CALIFORNIA

Page ID LINK:

Case No. Title

CIVIL MINUTES -GENERAL

CV 12-09012-BRO (FFMx) c/w CV 13-04416-BRO (FFMx)

Date Jllile 12, 2017

DUNCAN ROY ET AL. V. COUNTY OF LOS ANGELES ET AL.

GERARDO GONZALEZ V. IMMIGRATION AND CUSTOMS ENFORCEMENT

ET AL.

deportation hearings). Thus, it is not a novel concept that the Fourth Amendment's requirements may differ in a civil immigration proceeding. See Gerstein , 420 U.S. at 125 n.27 ("The Fourth Amendment was tailored explicitly for the criminal justice system ...."). Therefore, the Court finds that Plaintiffs' argument that courts have applied portions of the Fourth Amendment in civil immigration proceedings and, therefore, Gerstein and County ofRiverside must apply in their entirety-on its ownunpersuasive.

Next, Plaintiffs rely on the Ninth Circuit's decision in Rhoden, where the court held that a detained citizen "was entitled to Fourth Amendment protection against unlawful seizures." Rhoden , 55 F.3d at 432. There, however, the court did not examine whether the detainee was entitled to a judicial determination of probable cause; rather, the court examined whether the length of the detainee's six-day detention was reasonable under the Fourth Amendment. Id. As indicated above, however, the dispute here is not whether ICE detainers implicate the Fourth Amendment or whether Plaintiffs were subject to a lengthy unauthorized detention, but whether the Fourth Amendment specifically requires judicial officers to review ICE officers' probable cause determinations. (See Gonzalez TAC ~~ 112-13.) As Rhoden does not address this issue, the Court finds it inapposite.

Moreover, in Rhoden, the court did not determine whether the six-day detention was reasonable, instead finding that there were disputed issues of material facts as to reasonableness and remanding the case for further consideration. Rhoden , 55 F.3d at 432. In fact, as noted above, the Court specifically noted that County ofRiverside addressed a criminal arrest and held that civil immigration proceedings arising from border detentions, like the detention involved in that case, "involve a distinct set of considerations and require different administrative procedures." Id. at 432 n.7. "Accordingly, [County ofRiverside] does not compel the conclusion that Rhoden's 6-day detention violated the Fourth Amendment as a matter of law." Id. Therefore, along with not addressing whether the Fourth Amendment requires judicial review of an ICE officers' probable cause determination, Rhoden does not stand for the proposition that County ofRiverside's forty-eight-hour review time limit applies in immigration proceedings, regardless. To the contrary, like Abel and Tejada , Rhoden recognizes that

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UNITED STATES DISTRICT COURT CENTRAL DISTRICT OF CALIFORNIA

Page ID LINK:

Case No. Title

CIVIL MINUTES -GENERAL

CV 12-09012-BRO (FFMx) c/w CV 13-04416-BRO (FFMx)

Date Jllile 12, 2017

DUNCAN ROY ET AL. V. COUNTY OF LOS ANGELES ET AL.

GERARDO GONZALEZ V. IMMIGRATION AND CUSTOMS ENFORCEMENT

ET AL.

there are differences in the protections afforded individuals in criminal proceedings compared to civil immigration proceedings.

Plaintiffs also cite Rivas v. Martin, 781 F. Supp. 2d 775, 780 (N.D. Ind. 2011), for the proposition that courts have "held that a neutral, judicial probable cause determination" is required within forty-eight hours of an immigration arrest. (See Opp ' n at 9.) Like Rhoden, the Court finds Rivas inapposite. The plaintiff in Rivas did not raise the issue here-whether judicial review of ICE officers' probable cause determinations is required under the Fourth Amendment. Instead, the plaintiff brought a claim pursuant to 42 U.S.C. § 1983 alleging that she had been detained for an unconstitutional length of time without justification. Rivas, 781 F. Supp. 2d at 779 ("Rivas claims that the defendants detained her ... longer than they had authority to [detain her]. Allegations of detention without authority can support a claim of violation of constitutional rights."). The issue Plaintiffs raise in the instant Motion is not unconstitutionally lengthy detentions; rather, they specifically allege that it is Defendants' failure to provide judicial review of ICE officers' probable cause determinations that violates the Fourth Amendment. (See TAC ~~ 112-13.) This is a different issue. Moreover, Rivas noted only that " [w]hen someone is arrested and detained without a warrant, it is presumptively reasonable for that person to be detained up to 48 hours pending a determination of probable cause." Id. at 780. Rivas did not explicitly analyze judicial determinations of probable cause, nor did it address ICE's authority in making probable cause determinations. Accordingly, the Court finds Rivas unpersuasive.

Further, Plaintiffs contend that " [t]he federal government has previously conceded that the scope of Fourth Amendment protections articulated in Gerstein apply to warrantless immigration arrests." (Mot. at 6-7 (citing INS, Enhancing the Enforcement Authority of Immigration Officers, 59 Fed. Reg. 42,406-01 , 42,411 (Aug. 17, 1994)).) Indeed, the legislative history that Plaintiffs cite indicates that the INS (and now ICE) "is clearly bound" by judicial precedent and policy standards, "including those set forth in Gerstein v. Pugh, 420 U.S. 103 (1975)." Enhancing the Enforcement Authority, 59 Fed. Reg. at 42,411. However, the legislative history lacks clarity as it indicates that it addresses "the judicial construction" of the phrase "reason to believe" and indicates only

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Page ID LINK:

CIVIL MINUTES -GENERAL

Case No. Title

CV 12-09012-BRO (FFMx) c/w CV 13-04416-BRO (FFMx)

Date Jllile 12, 2017

DUNCAN ROY ET AL. V. COUNTY OF LOS ANGELES ET AL.

GERARDO GONZALEZ V. IMMIGRATION AND CUSTOMS ENFORCEMENT

ET AL.

that the INS must comply "with outstanding court orders regarding arrest and post-arrest procedures." !d. It is unclear precisely what portions of Gerstein was being discussed.

Moreover, "while the legislative history of the enacting Congress' intent is generally entitled to controlling weight, subsequent legislative history may be entitled to some weight, depending on the clarity of the enacting Congress' intent and persuasiveness of the subsequent history." United States v. Iron Mountain Mines, Inc. , 812 F. Supp. 1528, 1559 (E.D. Cal. 1992) (emphasis added); see also Yang v. Cal. Dep 't ofSoc. Servs., 183 F.3d 953, 961 (9th Cir. 1999) ("Legislative history of subsequent legislation may be relevant in determining the intent of an earlier enactment, but it is entitled to less weight than actual legislation which has proceeded formally though the legislative process."). The legislative history that Plaintiffs cite is subsequent legislative history as it is from 1994, while the INA was initially enacted in in 1952, see, e.g., 8 U.S.C. § 1357, and falls short of clearly addressing the dispositive question in this case: whether ICE is bound by Gerstein's requirement that a judicial officer determine probable cause or whether an ICE agent's probable cause determination is sufficient. Therefore, the Court finds that the mention of Gerstein in the legislative history of the INA is not dispositive.

D. Whether the Fourth Amendment Requires Judicial Review of ICE Officers' Probable Cause Determinations

Accordingly, based on the deference the Court must afford the executive and legislative branches in the immigration arena and the distinctions between the protections afforded in criminal cases rather than civil immigration proceedings, the Court finds that it is not unconstitutional under the Fourth Amendment for the Legislature to delegate a probable cause determination to an executive officer, such as an ICE agent, rather than to an immigration, magistrate, or federal district court judge. No court has held to the contrary; rather, as explained above, courts frequently defer to the Legislature and the executive's authority in creating and implementing appropriate detainment and removal procedures in the immigration context. See Hampton v. Mow Sun Wong, 426 U.S. 88, 101 n.21 (1976) ("It is important to note that the authority to control immigration is not only vested solely in the Federal Government, rather than the States, but also that the power over aliens is of a political character and therefore subject only to narrow judicial

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Page ID LINK:

CIVIL MINUTES -GENERAL

Case No. Title

CV 12-09012-BRO (FFMx) c/w CV 13-04416-BRO (FFMx)

Date Jllile 12, 2017

DUNCAN ROY ET AL. V. COUNTY OF LOS ANGELES ET AL.

GERARDO GONZALEZ V. IMMIGRATION AND CUSTOMS ENFORCEMENT

ET AL.

review." (citation omitted)); Washington v. Trump , 847 F.3d 1151, 1162 (9th Cir. 2017) (noting that, while immigration laws are subject to certain constitutional limitations, "our jurisprudence has long counseled deference to the political branches on matters of immigration"); see also Zadvydas v. Davis, 533 U.S. 678, 711 (2001) (Kennedy, J., dissenting) ("Congress' power to detain aliens in connection with removal or exclusion, the Court has said, is part of the Legislature's considerable authority over immigration matters."); Harisiades v. Shaughnessy, 342 U.S. 580, 596-97 (1952) (Frankfurter, J., concurring) ("The conditions for entry of every alien, the particular classes of aliens that shall be denied entry altogether, the basis for determining such classification, the right to terminate hospitality to aliens, the grounds on which such determination shall be based, have been recognized as matters solely for the responsibility of the Congress and wholly outside the power of this Court to control.").

The Court notes that it would be a different analysis if Plaintiffs were alleging that Defendants have failed to provide any probable cause determination within forty-eight hours and Plaintiffs (and other immigration detainees like them) were being detained without any authorization at all. See Rivas, 781 F. Supp. 2d at 780 (finding plaintiff who alleged that her detainment for more than forty-eight hours was wholly unauthorized had stated a viable constitutional claim); see also Tejada , 255 F.3d at 4 ("We nonetheless wish to note that aliens arrested for status offenses are not without protection from excessively long detentions."). But those are not the allegations currently before the Court. Plaintiffs have specifically alleged that their Fourth Amendment rights have been violated because they have not been granted judicial review of ICE officers' probable cause determinations. (See Mot. at 1.) But the Legislature has determined that removal pursuant to ICE officers' probable cause determinations and examinations by ICE officers is sufficient in the civil immigration context. As this determination appears to be within its purview, the Court must follow the precedent finding that the Fourth Amendment does not require judicial review of ICE officers' probable cause determinations.

E. Whether It is Appropriate to Grant Partial Summary Judgment in Favor of Defendants

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Page ID LINK:

CIVIL MINUTES -GENERAL

Case No. Title

CV 12-09012-BRO (FFMx) c/w CV 13-04416-BRO (FFMx)

Date Jllile 12, 2017

DUNCAN ROY ET AL. V. COUNTY OF LOS ANGELES ET AL.

GERARDO GONZALEZ V. IMMIGRATION AND CUSTOMS ENFORCEMENT

ET AL.

As noted above, so long as the parties have presented all of their evidence and are on notice that summary judgment is possible (i.e., have presented evidence outside of the pleadings and invited the court to consider it), it is appropriate for the court to sua sponte enter summary judgment for the nonmoving party. See 14.02 Acres ofLand, 547 F.3d at 955. Here, the facts are entirely undisputed and the dispute is purely one oflegal interpretation. Accordingly, though it was Plaintiffs-not Defendants- who moved for summary judgment, after considering the evidence presented, the Court finds that it is appropriate to grant summary judgment in favor of Defendants. Therefore, the Court DENIES Plaintiffs' Motion and GRANTS summary judgment in favor of Defendants.

V. CONCLUSION

For the foregoing reasons, the Court DENIES Plaintiffs' Motion and, instead, GRANTS summary judgment in favor of Defendants.

IT IS SO ORDERED.

Initials of Preparer

rf

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 Case 2:12-cv-09012-AB-FFM Document 346 Filed 02/07/18 Page 1 of 48 Page ID #:8897

UNITED STATES DISTRICT COURT CENTRAL DISTRICT OF CALIFORNIA

CIVIL MINUTES – GENERAL

Case No. Title

CV 12-09012-AB (FFMx)

Date February 7, 2018

DUNCAN ROY ET AL. V. COUNTY OF LOS ANGELES ET AL.

Present: The Honorable ANDRÉ BIROTTE JR., United States District Judge

Carla Badirian

Not Present

N/A

Deputy Clerk

Court Reporter

Tape No.

Attorneys Present for Plaintiffs:

Attorneys Present for Defendants:

Not Present

Not Present

Proceedings:

(IN CHAMBERS) ORDER RE DEFENDANTS’ MOTION TO DISMISS AND MOTION FOR PARTIAL SUMMARY JUDGMENT; PLAINTIFFS’ MOTION FOR SUMMARY ADJUDICATION REGARDING LIABILITY; DEFENDANTS’ NOTICE OF MOTION AND MOTION FOR SUMMARY JUDGMENT, OR ALTERNATIVELY, PARTIAL SUMMARY JUDGMENT; GONZALEZ PLAINTIFFS’ SECOND MOTION FOR PARTIAL SUMMARY JUDGMENT; AND, DEFENDANTS’ MOTION TO STRIKE PLAINTIFFS’ EXPERT WITNESS DECLARATIONS [239, 240, 242, 247, 307]

I. INTRODUCTION

This action involves two cases that have been consolidated: Duncan Roy et al. v. County of Los Angeles et al., No. 12-cv-09012-BRO-FFM and Gonzalez v. Immigration & Customs Enforcement et al., No. 13-cv-04416-BRO-FFM.1 Plaintiffs in the Gonzalez action are Geraldo Gonzalez and Simon Chinivizyan (hereinafter, “Gonzalez Plaintiffs”). (See Gonzalez, No. 13-cv-04416-BRO-FFM, Dkt. No. 44 (hereinafter, “Gonzalez TAC”).) Defendants in the Gonzalez action are Immigration and Customs Enforcement (“ICE”), Thomas Winkowski, Acting Director of ICE, David Marin, Acting Field Office Director for the Los Angeles District of ICE, and David Palmatier, the Unit Chief for the Law Enforcement Service Center of ICE (collectively, “Gonzalez Defendants” or “ICE”). (See Gonzalez TAC ¶¶ 15–18.) The remaining Plaintiffs in the Roy action are Clemente De La Cerda and Alain Martinez-Perez (collectively, “Roy Plaintiffs”). (See Dkt. Nos. 125 (hereinafter, “Roy SAC”), 134, 216.) Defendants in the Roy action are the County of

1 Both Cases are now proceeding under Case No. 12-cv-09012-BRO-FFM.

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Case 2:12-cv-09012-AB-FFM Document 346 Filed 02/07/18 Page 2 of 48 Page ID #:8898

UNITED STATES DISTRICT COURT CENTRAL DISTRICT OF CALIFORNIA

CIVIL MINUTES – GENERAL

Case No. Title

CV 12-09012-AB (FFMx)

Date February 7, 2018

DUNCAN ROY ET AL. V. COUNTY OF LOS ANGELES ET AL.

Los Angeles (the “County”) and Sheriff Leroy D. Baca (collectively, “Roy Defendants” or the “County”). See Roy SAC.

Pending before the Court are five motions: (1) Gonzalez Defendants’ Motion to Dismiss and for Partial Summary Judgment (Dkt. No. 239); (2) Roy Plaintiffs’ Motion for Summary Adjudication Regarding Liability (Dkt. No. 240); (3) Roy Defendants’ Motion for Summary Judgment, or Alternatively, Partial Summary Judgment (Dkt. No. 242); (4) Gonzalez Plaintiffs’ Second Motion for Partial Summary Judgment (Dkt. No. 247); and, (5) Gonzalez Defendants’ Motion to Strike Plaintiffs’ Expert Witness Declarations (Dkt. No. 307).
After considering the papers filed in support of and in opposition to the instant Motions, as well as oral argument of counsel at the hearing held on September 12, 2017, for the following reasons, the Court: (1) DENIES the Gonzalez Defendants’ Motion to Dismiss and for Partial Summary Judgment (Dkt. No. 239); (2) GRANTS in part and DENIES in part Plaintiffs’ Motion for Summary Adjudication Regarding Liability (Dkt. No. 240); (3) GRANTS in part and DENIES in part Roy Defendants’ Motion for Summary Judgment, or Alternatively, Partial Summary Judgment (Dkt. No. 242); (4) GRANTS in part and DENIES in part Gonzalez Plaintiffs’ Second Motion for Partial Summary Judgment (Dkt. No. 247); and, (5) DENIES Gonzalez Defendants’ Motion to Strike Plaintiffs’ Expert Witness Declarations (Dkt. No. 307).
II. BACKGROUND AND RELEVANT PROCEDURAL BACKGROUND2
A. Background
1. ICE Detainers
ICE issues immigration detainers to federal, state, and local law enforcement agencies (“LEAs”) to request that the LEA detain the individual up to 48 hours beyond the time he or she would otherwise be released from custody in order for ICE to assume

2 The Court’s description of the background of this case does not constitute this Court’s findings of undisputed facts for these Motions.

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UNITED STATES DISTRICT COURT CENTRAL DISTRICT OF CALIFORNIA

CIVIL MINUTES – GENERAL

Case No. Title

CV 12-09012-AB (FFMx)

Date February 7, 2018

DUNCAN ROY ET AL. V. COUNTY OF LOS ANGELES ET AL.

custody of the individual. (See Dkt. No. 297-1 ¶ 13.) Since the Gonzalez action and the Roy action were filed, “ICE has used five different detainer forms: the December 2011, revision, the December 2012 revision, the June 2015 Form I-247D, the August 2015 Form I-247X, and the April 2017 Form I-247A.” (Dkt. No. 297-1 ¶ 14.) “As ICE has changed its detainer forms, it has changed the language on the form indicating the basis for its determination to issue a detainer.” (Dkt. No. 297-1 ¶ 16.) “The December 2011 I247 detainer stated the reason for the detainer was that ICE had ‘initiated an investigation’ into whether the subject was removable from the United States.” (Dkt. No. 297-1 ¶ 16.) “The June 2015 I-247D and August 2015 I-247X detainer forms, which ICE changed in response to judicial decisions holding ICE detainers lacked probable cause to justify a warrantless arrest and law enforcement agencies nationwide began to refuse to comply with them, further modified the form’s wording to state that ‘[p]robable cause exists that the subject is a removable alien.’” (Dkt. No. 297-1 ¶ 17.)
“Beginning in September 2006, ICE began to adopt what it calls ‘biometric interoperability’ technology to ‘link local law enforcement agencies to both FBI and DHS biometric databases.’” (Dkt. No. 297-1 ¶ 22.) “In other words, ICE began to receive— automatically and in real time—the fingerprints of any person booked into a local jail.” (Dkt. No. 297-1 ¶ 22.) “This technology, incorporated into ICE’s secure Communities Program, linked for the first time the . . . [FBI’s] fingerprint repository, known as Integrated Automated Fingerprint Identification System (“IAFIS’), with the DHS’s fingerprint repository, known as Automated Biometric Identification System (‘IDENT’).” (Dkt. No. 297-1 ¶ 23.) “As a result, any time a jail sent fingerprints to the FBI for a criminal background check . . . , those prints were now automatically shared with ICE.” (Dkt. No. 297-1 ¶ 23.)

When an LEA runs the individual’s fingerprints, those prints are sent to the FBI,
“which sends the information to ICE’s Law Enforcement Support Center (LESC) in Burlington, Vermont, through a system called ‘interoperability’.” (Dkt. No. 281¶ 1.) 3
“The LESC may conduct certain basic database background checks, relating to

3 The Court’s citations to specific paragraphs from Dkt. No. 281 refer to Plaintiffs’ Statement of Genuine Issues section, not the Additional Material Facts section, unless otherwise indicated by the inclusion of the abbreviation “AMF.”

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UNITED STATES DISTRICT COURT CENTRAL DISTRICT OF CALIFORNIA

CIVIL MINUTES – GENERAL

Case No. Title

CV 12-09012-AB (FFMx)

Date February 7, 2018

DUNCAN ROY ET AL. V. COUNTY OF LOS ANGELES ET AL.

immigration and criminal history, then sends an Immigration Alien Response (IAR) to ICE’s Pacific Enforcement Response Center (PERC).” (Dkt. No. 281 ¶ 3.) “When ICE personnel at the PERC receive an IAR, ICE conducts . . . database checks, searching between five and ten different databases for each individual.” (Dkt. No. 281 ¶ 4.) “Among the databases ICE officers search, maintained by a number of different federal government agencies, are CLAIMS [(Computer Linked Application Information Management Systems)], CIS [(Central Index System)], CLETS, ENFORCE [(Enforcement Case Tracking System)], NCIC, IDENT, TECS [(Treasury Enforcement Communications System)], and others.” (Dkt. No. 281 ¶ 5.) “ICE requires contractors and agents issuing detainers on the basis of electronic database checks alone to check only four databases prior to issuing a detainer.” (Dkt. No. 296-8 at ¶ 59.) These databases are: (1) CIS, (2) CLAIMS, (3) TECS, and, (4) ENFORCE. (Dkt. No. 296-8 at ¶ 59.) “There is no requirement that contractors or agents check any other databases; they are left to their discretion to do so if they feel it is necessary.” (Dkt. No. 296-8 at ¶ 60.)
Plaintiffs claim that “[o]f the four databases that ICE requires officers to check prior to issuing a detainer, only two—CIS and CLAIMS—purport to contain immigration status and naturalization information.” (Dkt. No. 296-8 at ¶ 61.) Defendants claim that all four databases that agents consult before issuing a detainer “contain immigration and citizenship information.” (Dkt. No. 296-8 at ¶ 61.) Plaintiffs assert that CIS and CLAIMS are woefully incomplete and notoriously unreliable. (Dkt. No. 296-8 at ¶ 72.) “If the ICE officer determines through . . . those database checks that probable cause exists that the individual is a removable alien, then the officer issues a detainer.” (Dkt. No. 281 ¶ 6.) ICE issued some detainers based solely upon database checks. (See Dkt. No. 281 ¶¶ 6, 8.) According to Plaintiffs, because CIS and CLAIMS are woefully incomplete and notoriously unreliable, ICE cannot establish probable cause based upon its reliance on databases alone. (Dkt. No. 247-1 at 14–21.)
“At the time Plaintiffs commenced their action, ICE might issue a detainer if the database search and investigation of an individual known to be born outside the United States returned information (known as a foreign born, no match).” (Dkt. No. 281 ¶ 8; Dkt. No. 296-8 ¶ 136.) “ICE admits that evidence of foreign birth and no match in a federal immigration database is not probable cause of removability.” (Dkt. No. 296-8

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UNITED STATES DISTRICT COURT CENTRAL DISTRICT OF CALIFORNIA

CIVIL MINUTES – GENERAL

Case No. Title

CV 12-09012-AB (FFMx)

Date February 7, 2018

DUNCAN ROY ET AL. V. COUNTY OF LOS ANGELES ET AL.

¶ 138.) “In 2015, DHS announced that immigration detainers would no longer be issued based on ‘Foreign Birth-No Match.’” (Dkt. No. 296-8 ¶ 140.)

“By statute, ICE is authorized to make arrests pursuant to administrative warrants and—under certain circumstances—to make arrests without an administrative warrant.” (Dkt. No. 296-8 ¶ 155.) “An arrest without an administrative warrant is permitted only if the ICE officer has a ‘reason to believe’ an individual is removable from the United States and determines that the individual ‘is likely to escape before a warrant can be obtained for his arrest.’” (Dkt. No. 296-8 ¶ 155.) “ICE issues detainers without making any determination whether the subject is likely to escape before an administrative warrant can be obtained.” (Dkt. No. 296-8 ¶ 151.) “Under ICE’s 2017 Detainer Policy, ICE now issues an administrative warrant to accompany an immigration detainer request.” (Dkt. No. 296-8 ¶ 152.) “The 2017 Detainer Policy provides that it ‘may be modified, rescinded, or superseded at any time without notice’ and that ‘no limitations are placed by this guidance on otherwise lawful enforcement or litigative prerogatives of ICE.’” (Dkt. No. 296-8 ¶ 154.)

2. Gonzalez Action
Plaintiff Gerardo Gonzalez, born in Los Angeles, California, is a U.S. citizen. (Dkt. No. 297-1 ¶ 1; Gonzalez TAC ¶ 11.)4 At the time Gonzalez joined the instant action, he was being held in pretrial detention in a Los Angeles County jail, and he was subject to an ICE detainer. (Gonzalez TAC ¶ 12.) Plaintiff Simon Chinivizyan is a twenty-one-year-old American citizen who resides in Burbank, California. (Gonzalez TAC ¶ 13.) At the time he joined the lawsuit, he was being held in a Los Angeles County jail pursuant to an immigration detainer. (Gonzalez TAC ¶ 14.) Plaintiff Gonzalez and

4 Throughout this Order, the Court cites the versions of the statements of uncontroverted facts or statements of genuine disputes that the parties submitted with either the reply briefs or the opposition briefs as they include both the Plaintiffs’ and Defendants’ factual contentions and responses for each separate motion. Because there are a series of separate statements filed in connection with the various motions, the Court will cite the particular docket number of the document to which it is referring.

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UNITED STATES DISTRICT COURT CENTRAL DISTRICT OF CALIFORNIA

CIVIL MINUTES – GENERAL

Case No. Title

CV 12-09012-AB (FFMx)

Date February 7, 2018

DUNCAN ROY ET AL. V. COUNTY OF LOS ANGELES ET AL.

Chinivizyan bring this action on behalf of themselves and those similarly situated. (See Gonzalez TAC.)
On September 9, 2016, the Court certified the following of the Gonzalez Plaintiffs’ proposed classes: (1) Judicial Determination Class (limited to those who were detained for more than forty-eight hours without receiving a judicial determination of probable cause); (2) Probable Cause Subclass; and, (3) Statutory Subclass. (Dkt. No. 184 at 42.) While the Court granted Partial Summary Judgment in favor of the Gonzalez Defendants as to the Judicial Determination Class on June 12, 2017 (Dkt. No. 264), the definition of the Judicial Determination Class is relevant to the instant Motions to the extent it defines the subclass groups.
The Judicial Determination Class included:
All current and future persons who are subject to an immigration detainer issued by an ICE agent located in the Central District of California, where the detainer is not based upon a final order of removal signed by an immigration judge or the individual is not subject to ongoing removal proceedings. Plaintiffs proposed Judicial Determination Class will seek rescission of class members’ detainers and a declaration that Defendants’ issuance of detainers against class members without providing a judicial determination of probable cause violates the Fourth Amendment.
(Dkt. No. 184 at 12.)
The Probable Cause Subclass includes:
All members of the Judicial Determination Class for whom ICE has issued an immigration detainer based solely on checks for the individual in government databases. The Probable Cause Subclass, to which Plaintiff Gonzalez belongs, will seek rescission of subclass members’ detainers and a declaration that Defendants’ issuance of detainers against subclass members in reliance on database checks alone violates the Fourth Amendment.
(Dkt. No. 184 at 12–13.)

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UNITED STATES DISTRICT COURT CENTRAL DISTRICT OF CALIFORNIA

CIVIL MINUTES – GENERAL

Case No. Title

CV 12-09012-AB (FFMx)

Date February 7, 2018

DUNCAN ROY ET AL. V. COUNTY OF LOS ANGELES ET AL.

Finally, the Statutory Subclass includes:

All members of the Judicial Determination Class for whom ICE did not issue an administrative warrant of arrest at the time it issued an immigration detainer. The Statutory Subclass, to which both Plaintiffs belong, will seek rescission of subclass members’ detainers and a declaration that Defendants’ issuance of detainers against subclass members without making an individualized determination that the individual is likely to escape before a warrant can be obtained for his arrest violates 8 U.S.C. § 1357(a)(2).

(Dkt. No. 184 at 13.)

Relevant to the instant Motions, the Gonzalez Plaintiffs seek “partial summary judgment on behalf of the Probable Cause Subclass on the issue of whether ICE’s practice of issuing warrantless arrest requests (immigration detainers) in sole reliance on electronic databases that are incomplete and inaccurate violates the Fourth Amendment.” (Dkt. No. 247 at 3.) The Gonzalez Plaintiffs also seek “partial summary judgment . . . on behalf of the Statutory Subclass on the issue of whether ICE’s practice of issuing immigration detainers without first making a flight risk determination violates 8 U.S.C. § 1357(a)(2).” (Dkt. No. 247 at 3.)

3. Roy Action

a. ICE Detainer Forms in Connection with LASD’s Practices

In August 2009, the Los Angeles County Sherriff’s Department (“LASD”) and ICE activated the “Secure Communities” program in Los Angeles County. (Roy SAC ¶ 18.) Under this program, LASD provides ICE with the fingerprints and booking information of every arrested individual during the booking process. (Roy SAC ¶ 18.) An agent in ICE’s Law Enforcement Support Center checks the fingerprints against ICE and Federal Bureau of Investigation databases. (Roy SAC ¶ 18.) If the reviewing agent with ICE’s Enforcement and Removal Operations Unit determines that ICE needs to take some action regarding a person detained, the agent provides LASD with a Form I-247, also referred to as an immigration or ICE detainer. (Roy SAC ¶ 19.) Pursuant to 8 C.F.R. § 287.7(a), an immigration hold is intended to advise a law enforcement agency that the Department of Homeland Security (“DHS”) seeks to arrest or detain an alien in

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UNITED STATES DISTRICT COURT CENTRAL DISTRICT OF CALIFORNIA

CIVIL MINUTES – GENERAL

Case No. Title

CV 12-09012-AB (FFMx)

Date February 7, 2018

DUNCAN ROY ET AL. V. COUNTY OF LOS ANGELES ET AL.

the agency’s custody. (Roy SAC ¶ 21.) The detainer form also requests that the agency detain the alien for an additional forty-eight hours beyond when the subject would otherwise have been released. (Roy SAC ¶ 22.)
The Roy Plaintiffs challenge two of the LASD’s practices related to immigration holds. First, they assert that the LASD has engaged in a pattern and practice of unlawfully denying bail to inmates who were subject to an immigration hold, thereby preventing these individuals from securing their release. (See Roy SAC ¶¶ 47–55.) Second, Plaintiffs challenge the LASD’s practice of detaining individuals solely on the basis of an immigration hold and beyond the time or authority permitted under state law to hold an inmate in custody. (Roy SAC ¶¶ 57–60.)
b. Bail Practices
“LASD entered immigration detainers into their data system as an additional ‘charge’ on the inmate.” (Dkt. No. 275 ¶ 29.) 5 “Within LASD’s database system, some charges or holds have specific bail amounts attached to them, while others do not have a specific dollar amount.” (Dkt. No. 275 ¶ 30.) “Charges or holds that do not have a specific dollar amount are designated as ‘No Bail’ holds.” (Dkt. No. 275 ¶ 31.) According to Plaintiffs, “[a]side from ICE holds, the ‘No Bail’ notation is used exclusively for holds for which the inmate cannot post bail, including state prison holds (indicating that the state prison has custody of the inmate), probation holds indicating that the person may not be released due to probation violation) and warrants for which there is no bail.” (Dkt. No. 275 ¶ 32.) Defendants contend that the “No Bail” notation is not used exclusively for holds for which the inmate cannot post bail, but rather, the “No Bail” notation is used for holds when there is no bail amount specified, unlike most criminal charges which are assigned a specific dollar figure. (Dkt. No. 275 ¶ 32–34.) Plaintiffs contend that if an inmate was subject to an immigration detainer, the inmate was not allowed to post bail, and Defendants argue that it has always been the LASD’s policy and practice to allow inmates subject to immigration detainers to post bail. (See Dkt. No. 275 ¶¶ 46–47.)

5 The Court’s citations to specific paragraphs from Dkt. No. 275 refer to paragraphs within the Defendants’ Statement of Genuine Issues section, not the Additional Material Facts section, unless otherwise indicated by the inclusion of the abbreviation “AMF.”

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UNITED STATES DISTRICT COURT CENTRAL DISTRICT OF CALIFORNIA

CIVIL MINUTES – GENERAL

Case No. Title

CV 12-09012-AB (FFMx)

Date February 7, 2018

DUNCAN ROY ET AL. V. COUNTY OF LOS ANGELES ET AL.

“It is LASD policy not to book anyone into its jails for whom bail is set at $25,000 or less unless they refused to sign the citation, demanded to appear before a magistrate, were charged with a probation violation, or were charged with a disqualifying enumerated charge (e.g. escape from custody, child abuse, domestic violence, etc.)[.]” (Dkt. No. 275 ¶ 56.) “Pursuant to LASD’s Policy of Bail Acceptance, where an individual with bail of less than $25,000 qualified for release without posting bail, watch commanders had discretion to book the person where they could not produce sufficient ID or were intoxicated.” (Dkt. No. 275 ¶ 57.) “Until June 2014, LASD’s policy of not booking arrestees with bail of less than $25,000 did not apply to those with ICE Detainers.” (Dkt. No. 275 ¶ 58.)

c. Arrest and Detention Based on Immigration Detainers

“From October 2010 to June 2014, LASD’s policy and practice was to detain individuals beyond the time they were eligible for release on the immigration detainer for up to 48 hours excluding weekends and holidays.” (Dkt. No. 275 ¶ 16.) According to Plaintiffs, “[d]uring this period, LASD recorded immigration detainers in its Automated Jail Information System (“AJIS”), making them visible to jail staff and the public through LASD’s inmate locator.” (Dkt. No. 275 ¶ 18.) “All detainers uploaded into AJIS were detainers that the LASD intended to honor by detaining the inmate after [he or she was] due for release on criminal charges.” (Dkt. No. 275 ¶ 20.)

“In March 2014, the LASD initiated steps to comply with a California law, known as AB4 (The Trust Act), Cal[ifornia] Gov[ernment] Code[] section 7282.5(a), which limited the circumstances in which law enforcement agencies could honor immigration detainers.” (Dkt. No. 275 ¶ 21.) “Beginning in June 2014, LASD adopted policies and practices aimed at reducing the time that it detains an individual on an ICE detainer and enabling transfer to ICE without extending a person’s detention beyond the time [he or she] is eligible for release.” (Dkt. No. 275 ¶ 22.) “In June 2014, LASD stopped recording immigration detainers in AJIS and began keeping only a paper copy of the detainer in the inmate’s record jacket.” (Dkt. No. 275 ¶ 23.)

“During the class period, LASD has never had a policy or practice to bring people held on ICE detainers before a judge for a probable cause determination, despite maintaining procedures for ensuring other inmates held on warrantless arrests would be released within 48 hours.” (Dkt. No. 275 ¶ 24.) “LASD’s failure to insure that inmates

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UNITED STATES DISTRICT COURT CENTRAL DISTRICT OF CALIFORNIA

CIVIL MINUTES – GENERAL

Case No. Title

CV 12-09012-AB (FFMx)

Date February 7, 2018

DUNCAN ROY ET AL. V. COUNTY OF LOS ANGELES ET AL.

held on ICE detainers were brought before a magistrate within 48 hours was not due to any emergency or the need to complete administrative tasks.” (Dkt. No. 275 ¶ 25.) “In LASD’s view, it had no legal obligation to ensure that inmates held solely on ICE detainers were brought before a judge or magistrate within 48 hours.” (Dkt. No. 275 ¶ 26.) Further, “LASD was aware that ICE did not provide a judicial determination of probable cause as to those individuals within 48 hours of ICE taking custody of the individual.” (Dkt. No. 275 ¶ 27.) “Although the LASD has procedures to track the length of time a person subject to an out-of-country warrant is held before transfer to the requesting agency to ensure they are not over-detained, no such procedure exists for ICE [d]etainers.” (Dkt. No. 275 ¶ 28.)
d. Roy Plaintiffs
The only two remaining named Plaintiffs in the Roy action are Alain MartinezPerez and Clemente De La Cerda. (See Dkt. Nos. 125, 134, 216.) 6 Plaintiffs were in the custody of the Los Angeles County Sheriff’s Department (“LASD”) and were denied either bail or release from custody on the basis of an immigration hold. (See SAC.)
“Plaintiff Martinez-Perez is a 42-year-old Mexican citizen.” (Dkt. No. 275 ¶ 19.) “In May of 2005, Martinez-Perez permanently moved to the United States using a B-2 travel visa that had been issued to him by the United States in 2004.” (Dkt. No. 275 ¶ 20.) “The B-2 travel visa allowed Martinez-Perez to visit the United States as a tourist, but did not authorize him to live or work in the United States.” (Dkt. No. 275 ¶ 21.) “Since entering the United States in May of 2005, Martinez-Perez has never left the country.” (Dkt. No. 275 ¶ 22.) “After entering the United States in May of 2005, and since then, Martinez-Perez maintained several jobs without having ever received a work permit authorizing him to work in the United States.” (Dkt. No. 275 ¶ 23.)
“On December 14, 2011, Martinez-Perez was arrested by the LASD for domestic battery, and booked in the LASD’s City of Industry Station.” (Dkt. No. 275 ¶ 24.) “At the time of his booking, Martinez-Perez was fingerprinted, asked various personal

6 On January 25, 2016, the parties stipulated to dismiss Plaintiff Duncan Roy’s claims. (See Dkt. No. 134.) Thus, Duncan Roy is no longer a party to this action. On January 26, 2017, pursuant to the parties’ stipulation, the Court dismissed Plaintiff Annika Alliksoo from the Roy action. (Dkt. No. 216.)

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UNITED STATES DISTRICT COURT CENTRAL DISTRICT OF CALIFORNIA

CIVIL MINUTES – GENERAL

Case No. Title

CV 12-09012-AB (FFMx)

Date February 7, 2018

DUNCAN ROY ET AL. V. COUNTY OF LOS ANGELES ET AL.

information, and questioned about his immigration status, including where he was born and how long he had been living in the country. Martinez-Perez provided accurate and truthful information in response to these questions.” (Dkt. No. 275 ¶ 25.) “On Friday, December 16, 2011, Martinez-Perez was issued a Certificate of Release/Clearance Letter pursuant to California Penal Code § 849.5, informing him that no charges were filed against him.” (Dkt. No. 275 ¶ 26.) “However, due to the issuance of an immigration detainer by ICE, Martinez-Perez was not released from LASD custody until Tuesday, December 20, 2011, at which time he was released to ICE custody.” (Dkt. No. 275 ¶ 27.) “Martinez-Perez remained in LASD custody no more than 48 hours after he received the Certificate of Release/Clearance Letter, excluding the weekend.” (Dkt. No. 275 ¶ 28.) “Martinez-Perez stayed in ICE custody until January 2012, at which point he was released on an immigration bond.” (Dkt. No. 275 ¶ 29.) “After his release from ICE custody, Martinez-Perez had two more court hearings before the immigration court, at which point all immigration proceedings were canceled against him.” (Dkt. No. 275 ¶ 30.)
“During his detention in LASD custody, Martinez-Perez never personally contacted any bail bonds company to attempt to post bail.” (Dkt. No. 275 ¶ 31.) “During his detention in LASD custody, Martinez-Perez was never aware of the amount of his bail or that bail had been set.” (Dkt. No. 275 ¶ 32.) “Martinez-Perez’s cousin, Elizabeth Perez-LoPresti (‘Lo Presti’) found out about his arrest on December 15, 2011.” (Dkt. No. 275 ¶ 33.) “After finding out about his arrest, LoPresti called several bail companies, but was only able to communicate with one immediately. She does not recall the name of the bail company she spoke with.” (Dkt. No. 275 ¶ 34.) “LoPresti provided the unknown bail company with her credit card information and information about Plaintiff MartinezPerez, including his name and potential location.” (Dkt. No. 275 ¶ 35.) “That same day, LoPresti received a call back from the unknown bail company and was told that bail could not be posted for Plaintiff Martinez-Perez due to his immigration hold.” (Dkt. No. 275 ¶ 36.) “LoPresti was not told whether the bail company actually communicated with LASD personnel regarding Martinez-Perez, went to [the] station to inquire as to his bail, or made an attempt to post bail.” (Dkt. No. 275 ¶ 37.) “LoPresti does not recall having any other conversations with any other bail company as to whether or not bail could be posted for Martinez-Perez.” (Dkt. No. 275 ¶ 38.)

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UNITED STATES DISTRICT COURT CENTRAL DISTRICT OF CALIFORNIA

CIVIL MINUTES – GENERAL

Case No. Title

CV 12-09012-AB (FFMx)

Date February 7, 2018

DUNCAN ROY ET AL. V. COUNTY OF LOS ANGELES ET AL.

Plaintiff Clemente “De La Cerda is a 41-year-old Mexican citizen.” (Dkt. No. 275 ¶ 39.) “On October 5, 2012, De La Cerda was arrested by the Whittier Police Department for a probation violation and misdemeanor possession of nunchucks.” (Dkt. No. 275 ¶ 41.) “At the time of arrest, De La Cerda was a lawful permanent resident of the United States.” (Dkt. No. 275 ¶ 43.) “Shortly after arrest, De La Cerda was transferred to LASD custody where he remained until December 2012.” (Dkt. No. 275 ¶ 44.) “While in LASD custody, De La Cerda was interviewed by ICE. Thereafter, he was released to the custody of ICE where he was immediately placed on the ISAP program and allowed to return home.” (Dkt. No. 275 ¶ 45.) “On February 14, 2013, De La Cerda voluntarily left the United States to Mexico.” (Dkt. No. 275 ¶ 46.)

The Roy Plaintiffs initiated this putative class action on behalf of themselves and others similarly situated. Martinez-Perez seeks damages on behalf of all individuals injured by the Roy Defendants’ practice of refusing bail requests and detaining individuals beyond the time permitted by state law. (Roy SAC ¶¶ 10, 11.) De La Cerda seeks equitable relief on behalf of all individuals who are currently or who will in the future be in Defendants’ custody on the basis of an immigration hold. (Roy SAC ¶ 12.) Specifically, he seeks to bar Defendants from detaining individuals beyond the time permitted by state law “solely on the basis of an immigration hold not supported by a probable cause determination.” (Roy SAC ¶ 12.)

e. Roy Certified Classes

On September 9, 2016, the Court granted, in part, Plaintiffs’ Motion for Class Certification. (See Dkt. No. 184.) The Court certified the following seven classes for the Roy action:

 (1) The False Imprisonment Equitable Relief Class includes “[a]ll LASD inmates detained beyond the time they are due for release from criminal custody, solely on the basis of immigration detainers, excluding inmates who have a final order of removal as indicated on the face of the detainer.” (Dkt. No. 184.)

 (2) The Gerstein Equitable relief class includes “[a]ll LASD inmates detained beyond the time they are due for release from criminal custody, solely on the basis of immigration detainers, excluding inmates who have a

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UNITED STATES DISTRICT COURT CENTRAL DISTRICT OF CALIFORNIA

CIVIL MINUTES – GENERAL

Case No. Title

CV 12-09012-AB (FFMx)

Date February 7, 2018

DUNCAN ROY ET AL. V. COUNTY OF LOS ANGELES ET AL.

 
  
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final order of removal or ongoing removal proceedings as indicated on the face of the detainer.” (Dkt. No. 184.)

(3) The False Imprisonment Damages Class includes “[a]ll LASD inmates who were detained beyond the time they are due for release from criminal custody, solely on the basis of immigration detainers, excluding inmates who had a final order of removal as indicated on the face of the detainer” and covers those inmates who were detained from November 7, 2011 to the present. (Dkt. No. 184.)

(4) The Post-48 Hour Gerstein Subclass includes “[a]ll LASD inmates who were detained for more than forty-eight hours beyond the time they were due for release from criminal custody, based solely on immigration detainers, excluding inmates who had a final order of removal or were subject to ongoing removal proceedings as indicted on the face of the immigration detainer” and covers those inmates who were detained from October 19, 2010 to the present (federal claims), and from November 7, 2011 to June 5, 2014 (California state law claims). (Dkt. No. 184.)

(5) The Investigative Detainer Class includes “[a]ll LASD inmates who were detained beyond the time they were due for release from criminal custody based solely on ‘investigative detainers’” and covers those inmates who were detained from October 19, 2010 to the present (federal claims), and from November 7, 2011 to June 5, 2014 (California state law claims). (Dkt. No. 184.)

(6) The No Bail Notation Class includes “[a]ll LASD inmates on whom an immigration detainer had been lodged and recorded in LASD’s AJIS database, and who were held on charges for which they would have been eligible to post bail” and covers those inmates who were detained from October 19, 2010 to October 18, 2012 (federal claims), and from November 7, 2011 to October 18, 2012 (California state law claims).

(7) The No-Money Bail Subclass includes “[a]ll LASD inmates on whom an immigration detainer had been lodged, who would otherwise have been subject to LASD’s policy of rejecting for booking misdemeanor defendants

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UNITED STATES DISTRICT COURT CENTRAL DISTRICT OF CALIFORNIA

CIVIL MINUTES – GENERAL

Case No. Title

CV 12-09012-AB (FFMx)

Date February 7, 2018

DUNCAN ROY ET AL. V. COUNTY OF LOS ANGELES ET AL.

with a bail amount of less than $25,000 (including Order of Own Recognizance)” and covers those inmates who were detained from October 19, 2010 to October 18, 2012 (federal claims), and from November 7, 2011 to October 18, 2012 (California state law claims).

B. Procedural History

1. The Roy Action

The Roy Plaintiffs filed their initial complaint on October 19, 2012, alleging that the LASD’s practices constitute false imprisonment and negligence per se, and violate the Fourth and Fourteenth Amendments under 42 U.S.C. § 1983, the California Constitution, article I, sections 7 and 13, California Government Code sections 815.2, 815.6, and the Tom Bane Civil Rights Act, California Civil Code section 52.1. (Dkt. No. 1.)

On June 8, 2015, the Roy Defendants filed a Motion for Judgment on the Pleadings, (Dkt. No. 71), which the Court granted in part and denied in part on July 9, 2015 (Dkt. No. 88). Also on June 8, 2015, the Roy Defendants filed a Motion to Consolidate this case with the Gonzalez Plaintiffs’ action (see Dkt. No. 72), which the Court granted on July 28, 2015 (Dkt. No. 91). On August 24, 2015, the Roy Plaintiffs filed a Motion Seeking Leave to Amend the Scheduling Order and to Amend the Pleadings (see Dkt. No. 96), which the Court granted in part and denied in part (Dkt. No. 107). On October 2, 2015, the Roy Plaintiffs filed their First Amended Complaint. (Dkt. No. 109.) On October 26, 2015, the Roy Defendants filed a Motion to Dismiss and to Strike two paragraphs from the Roy Plaintiffs’ First Amended Complaint. (Dkt. No. 112.) The Court granted the Roy Defendants’ Motion to Dismiss in part and denied it in part and granted the Motion to Strike. (Dkt. No. 124.) On December 7, 2015, the Roy Plaintiffs filed their Second Amended Complaint. (Dkt. No. 125.) The Roy Defendants filed their Answer to the Second Amended Complaint on December 22, 2015. (Dkt. No. 129.)

2. The Gonzalez Action

Gonzalez filed his initial Complaint on June 19, 2013. (Gonzalez, No. 13-cv04416-BRO-FFM, Dkt. No. 1.) On July 10, 2013, Gonzalez filed a First Amended Complaint, which added Chinivizyan as a named Plaintiff. (Gonzalez, No. 13-cv-04416-

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CIVIL MINUTES – GENERAL

Case No. Title

CV 12-09012-AB (FFMx)

Date February 7, 2018

DUNCAN ROY ET AL. V. COUNTY OF LOS ANGELES ET AL.

BRO-FFM, Dkt. No. 10.) After the Court granted the Gonzalez Plaintiffs leave to amend the complaint further, they filed a Second Amended Complaint on September 9, 2013. (Gonzalez, No. 13-cv-04416-BRO-FFM, Dtk. No. 24.) On July 28, 2014, the Court granted the Gonzalez Defendants’ Motion to Dismiss Plaintiffs’ Second Amended Complaint and granted the Gonzalez Plaintiffs leave to amend. (Gonzalez, No. 13-cv04416-BRO-FFM, Dkt. No. 42.)
The Gonzalez Plaintiffs filed a Third Amended Complaint on August 18, 2014. (Gonzalez, No. 13-cv-04416-BRO-FFM, Dkt. No. 44.) The same day, they also moved for class certification. (Dkt. No. 45.) On September 15, 2014, the Gonzalez Defendants filed a Motion to Dismiss for Lack of Jurisdiction. (Gonzalez, No. 13-cv-04416-BROFFM, Dkt. No. 53.) On October 24, 2014, the Court granted the Gonzalez Defendants’ Motion in part. (Gonzalez, No. 13-cv-04416-BRO-FFM, Dkt. No. 61.) On February 4, 2015, the Gonzalez Defendants filed their Answer to the Third Amended Complaint. (Gonzalez, No. 13-cv-04416-BRO-FFM, Dkt. No. 73.) On June 8, 2015, the Roy Defendants filed a Motion to Consolidate the two cases, which the Court granted on July 28, 2015. (Gonzalez, No. 13-cv-04416-BRO-FFM, Dkt. Nos. 88, 95.)
3. The Combined Proceedings
On May 9, 2016, the Gonzalez Plaintiffs and the Roy Plaintiffs filed a Motion for Class Certification. (See Dkt. No. 152.) The Court granted Plaintiffs’ Motion for Class Certification in part and denied Plaintiffs’ Motion in part. (Dkt. No. 184.) The Court certified the seven Roy classes and subclasses and the three Gonzalez classes and subclasses described above. (See Dkt. No. 184 at 41–42.)
On February 22, 2017, the Gonzalez Plaintiffs filed a Motion for Partial Summary Judgment as to the Judicial Determination Class and ICE’s policy of failing to provide a judicial probable cause determination within forty-eight hours of detention. (Dkt. No. 219.) On June 12, 2017, the Court denied the Gonzalez Plaintiffs’ Motion and granted Summary Judgment in favor of Defendant DHS on the issue of the Judicial Determination Class, holding that the Fourth Amendment does not require judicial review of ICE officers’ probable cause determinations. (Dkt. No. 264. at 19.)

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UNITED STATES DISTRICT COURT CENTRAL DISTRICT OF CALIFORNIA

CIVIL MINUTES – GENERAL

Case No. Title

CV 12-09012-AB (FFMx)

Date February 7, 2018

DUNCAN ROY ET AL. V. COUNTY OF LOS ANGELES ET AL.

On May 16, 2017, the Gonzalez Defendants filed the instant Motion to Dismiss for lack of subject matter jurisdiction under Federal Rule of Civil Procedure 12(b)(1) and for Partial Summary Judgment. (Dkt. No. 239.) On May 22, 2017, the Roy Defendants filed their notice of Joinder in the Gonzalez Defendants’ Motion to Dismiss and for Partial Summary Judgment. (Dkt. No. 259.) On July 7, 2017, the Gonzalez Plaintiffs filed their Opposition to the Gonzalez Defendants’ Motion to Dismiss and Motion for Partial Summary Judgment. (Dkt. Nos. 280.) On July 21, 2017, the Gonzalez Defendants replied. (Dkt. No. 296.) On July 27, 2017, the Gonzalez Defendants filed a Motion to Strike Plaintiffs’ Expert Witness Declarations that Plaintiffs filed in support of their Opposition to Defendants’ Motion to Dismiss and for Partial Summary Judgment. (Dkt. No. 307.) On August 2, 2017, the Gonzalez Plaintiffs filed an Ex Parte Application for Leave to File a Surreply, concurrently lodging their Surreply. (Dkt. 309.) On August 7, 2017, the Court granted Plaintiffs’ application. (Dkt. No. 314.) On August 14, 2017, the Gonzalez Plaintiffs filed their Opposition to Defendants’ Motion to Strike. (Dkt. No. 315.) On August 21, 2017, Defendants filed their Reply in Support of their Motion to Strike. (Dkt. No. 317.) On August 22, 2017, the Gonzalez Plaintiffs and Defendants stipulated to allow Defendants to substitute their Motion to Strike Reply brief for a shorter version, which complied with the Court’s Standing Order that was in effect at the time the parties filed the instant Motions. (Dkt. No. 318.) Defendants filed the Substituted Reply in Support of Defendant’s Motion to Strike along with the stipulation on August 22, 2017. (Dkt. No. 318-1.)
On May 16, 2017, the Gonzalez Plaintiffs filed the instant Second Motion for Partial Summary Judgment. (Dkt. No. 247.) On July 7, 2017, the Gonzalez Plaintiffs opposed. (Dkt. No. 272.) On July 21, 2017, the Roy Defendants filed their Notice of Joinder as to the Gonzalez Defendants’ Statement of Uncontroverted Facts and Conclusions of Law in Opposition to Plaintiffs’ Second Motion for Partial Summary Judgment. (Dtk. No. 302.) On July 21, 2017, the Gonzalez Plaintiffs filed their Reply in Support of their Second Motion for Partial Summary Judgment. (Dkt. No. 297.)
On May 16, 2017, the Roy Plaintiffs filed the instant Motion for Summary Adjudication Regarding Liability. (Dkt. No. 240.) On July 7, 2017, the Roy Defendants opposed the motion. (Dkt. No. 273.) On July 21, 2017, the Roy Plaintiffs replied. (Dkt. No. 303.) On August 22, 2017, proposed Amici Curiae, filed a Motion for Leave to File Brief in Support of Plaintiffs’ Motion for Summary Adjudication Regarding Liability.

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UNITED STATES DISTRICT COURT CENTRAL DISTRICT OF CALIFORNIA

CIVIL MINUTES – GENERAL

Case No. Title

CV 12-09012-AB (FFMx)

Date February 7, 2018

DUNCAN ROY ET AL. V. COUNTY OF LOS ANGELES ET AL.

(Dkt. No. 319.) On August 23, 2017, the Court granted the Amici’s Motion. (Dkt. No. 319.)

On May 16, 2017, the Roy Defendants filed the instant Motion for Summary Judgment, or Alternatively, Partial Summary Judgment. (Dkt. No. 242.) On July 7, 2017, the Roy Plaintiffs opposed the motion. (Dkt. No. 278.) On July 21, 2017, the Roy Defendants replied. (Dkt. No. 298.)

Parties in both the Gonzalez and Roy Actions have filed Notices of New or Supplemental Authority since the hearing date. (See, e.g., Dkt. Nos. 329–31, 334.) The Court has considered the supplemental authority in deciding these Motions.

III. EVIDENTIARY OBJECTIONS
A. MOTION TO STRIKE7
In support of their Opposition to Defendants’ Motion to Dismiss and for Partial Summary Judgment, the Gonzalez Plaintiffs submitted three expert declarations (Dkt. Nos. 286–88 hereinafter collectively, “expert witness declarations”) by the following former Immigration and Customs Enforcement (“ICE”) and U.S. Citizenship and Immigration Services (“USCIS”) employees:
 Roxana C. Bacon, who served as Chief Counsel for USCIS from October 2009 to December 2010, has taught immigration law since 1979, and practiced immigration law for more than 30 years (Dkt. No. 287. ¶¶ 1–4, Declaration of Roxana C. Bacon (hereinafter, “Bacon Decl.”));

 Patricia M. Corrales, who served as an attorney for ICE and the former Immigration and Naturalization Service from 1995 to 2012 and has operated her

7 The Gonzalez Defendants raise identical objections to Plaintiffs’ expert declarations in their Evidentiary Objections. (Dkt. No. 296-9.) Therefore, the Court’s discussion of these objections in this section addresses the arguments in Defendants’ separately filed Evidentiary Objections. (Dkt. No. 2969.)

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CIVIL MINUTES – GENERAL

Case No. Title

CV 12-09012-AB (FFMx)

Date February 7, 2018

DUNCAN ROY ET AL. V. COUNTY OF LOS ANGELES ET AL.

immigration law practice since 2012 (Dkt. No. 286. ¶¶ 2–3, Declaration of Patricia M. Corrales (hereinafter, “Corrales Decl.”)); and,

 Rachel Winkler, who served as an Immigration Law Analyst with the USCIS Ombudsman from December 2010 to January 2017. During that time, from 2012 to 2013, she served as a Special Advisor in the Office of the Secretary of the Department of Homeland Security (“DHS”). She is currently Senior Counsel at Frontier Solutions, a Washington, D.C.-based consulting company made up of former ICE and USCIS officials, including the former acting directors of ICE. (Dkt. No. 288. ¶¶ 2–4, Declaration of Rachel Winkler (hereinafter, “Winkler Decl.”)).
At issue in the pending Gonzalez motions for summary judgment is whether the Gonzalez Defendants have probable cause when they rely exclusively on electronic databases to make a determination whether to issue a detainer. (See, e.g., Dkt. No. 239-1 at 16–19; Dkt. No. 247-1 at 14–20.) The Gonzalez Plaintiffs claim that they submitted these expert declarations because each of these individuals has significant expertise with respect to the databases at issue in this case, mainly CIS and CLAIMs databases. (Dkt. No. 315 (hereinafter, “Opp’n to Mot. to Strike”) at 3.)

DHS has moved to strike the three above-mentioned expert witness declarations on three separate grounds. (Dkt. No. 307, DHS’ Motion to Strike Declarations (hereinafter, “Mot. to Strike”).) First, DHS claims that Plaintiffs’ failure to comply with DHS’s Touhy regulations governing disclosure of information in litigation by former and present DHS employees, before taking the declarations, is sufficient ground for striking them altogether. (Mot. to Strike at 15.) Second, DHS claims that the declarations should be stricken on grounds that they contain privileged and protected information under attorney-client privilege, attorney work product protection, law enforcement privilege, and the deliberative process privilege. (Mot. to Strike at 4–7.) Finally, Defendants contend that the Court should strike the declarations because they violate Rule 26(a)(2)(B)(i)8 of the Federal Rules of Civil Procedure (Mot. to Strike at 13–14), which

8 Defendants incorrectly cite Federal Rule of Civil Procedure 26(a)(2)(B)(i) as subsection (I), which does not exist. See Mot. to Strike at 12; Fed. R. Civ. P. 26(a)(2)(B).

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UNITED STATES DISTRICT COURT CENTRAL DISTRICT OF CALIFORNIA

CIVIL MINUTES – GENERAL

Case No. Title

CV 12-09012-AB (FFMx)

Date February 7, 2018

DUNCAN ROY ET AL. V. COUNTY OF LOS ANGELES ET AL.

requires an expert report to contain “a complete statement of all opinions the witness will express and the basis and reasons for them” and “the facts or data considered by the witness in forming them.” Fed. R. Civ. P. 26(a)(2)(B)(i)-(ii).
1. Touhy Regulations
First, the Court concludes that the DHS’s Touhy regulations do not serve as a basis to strike Plaintiffs’ expert witness declarations. A “Touhy” regulation is an internal federal agency regulation that sets forth the procedure to manage requests by parties in litigation for disclosure of documents or testimony by agency employees. See Debry v. Dep’t of Homeland Sec., 688 F. Supp. 2d 1103, 1109 (S.D. Cal. 2009). Federal agencies receive authority to promulgate such regulations under 5 U.S.C.S. § 301 which states:
The head of an Executive department or military department may prescribe regulations for the government of his department, the conduct of its employees, the distribution and performance of its business, and the custody, use, and preservation of its records, papers, and property. This section does not authorize withholding information from the public or limiting the availability of records to the public.
5.U.S.C.S.§ 301 (LEXIS 2017) (emphasis added). Congress added the last sentence in 1958. Exxon Shipping Co. v. U.S. Dep’t of Interior, 34 F.3d. 774, 777 (9th Cir. 1994). “According to the legislative history, Congress was concerned that the statute had been twisted from its original purpose as a housekeeping statute into a claim of authority to keep information from the public and, even, from the Congress.” Id. (internal quotation marks omitted). The House Report accompanying the 1958 amendment explained “that the original housekeeping statute, enacted in 1789, was enacted to help General Washington get his administration underway by spelling out the authority for executive officials to set up offices and file Government documents.” Id. (internal quotation marks omitted). “Over the years, executive officers ‘gradually moved in’ and the housekeeping statute became a ‘convenient blanket to hide anything Congress may have neglected or refused to include under specific secrecy laws.’” Id. “According to the House Report, the purpose of the 1958 amendment was to ‘correct that situation.’” Id.

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UNITED STATES DISTRICT COURT CENTRAL DISTRICT OF CALIFORNIA

CIVIL MINUTES – GENERAL

Case No. Title

CV 12-09012-AB (FFMx)

Date February 7, 2018

DUNCAN ROY ET AL. V. COUNTY OF LOS ANGELES ET AL.

Most federal agencies, including the DHS, have promulgated their own regulations, under section 301, governing the disclosure of information in litigation by agency employees. See C.F.R. § 5.44(a) (DHS Touhy Regulation).
Critically, the Ninth Circuit held that section 301 does not authorize agency heads to withhold documents or testimony from federal courts. Exxon, 34 F.3d at 778. The court acknowledged the government’s concern that its employee resources not be commandeered into service by private litigants, but expressed confidence that district courts “can, and will, balance the government’s concerns under the general rules of discovery.” Id. at 779. It noted that the government was free to raise any possible claims of privilege and the district court could handle these issues with the guidance of the Federal Rules of Evidence. Id. at 780. Lastly, the court explicitly stated that section 301 “does not create an independent privilege to withhold government information or shield federal employees from valid subpoenas.” Id.; see also McElya v. Sterling Med., Inc., 129 F.R.D. 510, 514–15 (W.D. Tenn. 1990) (holding that discovery in the case should proceed under the Federal Rules of Civil Procedure without the application of the agency’s internal Touhy regulations).
Here, DHS is attempting to use noncompliance with its Touhy regulation as a basis for striking the expert witness declarations. This is inappropriate under Exxon, as section 301 does not create an independent privilege. 34 F.3d at 780; see also Newton, Newton v. Am. Debt Serv., No. 11-03228, 2014 U.S. Dist. LEXIS 66473, at *10–11 (N.D. Cal. May 13, 2014) (refusing to require litigants to comply with relevant Touhy procedures before requesting court’s assistance in obtaining materials sought). Therefore, because a Touhy regulation does not provide an independent ground of privilege, this Court cannot strike the expert witness declarations on that basis alone and should look to the Federal Rules of Civil Procedure, and the rules of privilege within the Rules for guidance. As discussed below, Defendants have not established that the expert witness declarations contain any privileged or protected information.
2. Privilege and Work Product Protection
Second, Defendants fail to cite any statements from Plaintiffs’ expert witness declarations that are privileged or work product protected. (See Mot. to Strike.)

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CIVIL MINUTES – GENERAL

Case No. Title

CV 12-09012-AB (FFMx)

Date February 7, 2018

DUNCAN ROY ET AL. V. COUNTY OF LOS ANGELES ET AL.

Therefore, the Court will not strike Plaintiffs’ expert declarations on privilege or work product protection grounds.
Defendants argue that the attorney-client privilege, the work product doctrine, the law enforcement privilege, and the deliberative process privilege each serve as a basis for striking Plaintiffs’ expert witness declarations. (Mot. to Strike at 4–12.) The attorneyclient privilege “protects confidential disclosures made by a client to an attorney . . . to obtain legal advice, . . . as well as an attorney’s advice in response to such disclosures.” U.S. v. Ruehle, 583 F.3d 600, 607 (9th Cir. 2009). The work product doctrine “protects ‘from discovery documents and tangible things prepared by a party or his representative in anticipation of litigation.’” In re Grand Jury Subpoena, 357 F.3d 900, 907 (9th Cir. 2004).
Courts within the Ninth Circuit have acknowledged that a law enforcement privilege exists. See United States v. Rigmaiden, 844 F. Supp. 2d 982 (D. Ariz. 2012); Doyle v. Gonzalez, No. MISC. S-11-0066, 2011 U.S. Dist. LEXIS 100639 (E.D. Cal. Sept. 6, 2011); Ibrahim v. Dep’t of Homeland Sec., No. C 06-00545, 2009 U.S. Dist. LEXIS 122598 (N.D. Cal. Dec. 17, 2009). While the Ninth Circuit itself has not expressed a single standard governing the law enforcement privilege, district courts within the Ninth Circuit have borrowed standards from other circuits. Ibrahim, 2009 U.S. Dist. LEXIS, 122598 at *41–42. The federal privilege applicable to the government interest in preserving the confidentiality of law enforcement records has several names: (1) the “official information privilege[,]” (2) the “law enforcement privilege[,]” and, (3) a type of “executive privilege.” Doyle, 2011 U.S. Dist. LEXIS, 100639 at *10–11 (internal citations omitted). “The purpose of this privilege is to prevent disclosure of law enforcement techniques and procedures, to preserve the confidentiality of sources, to protect witness and law enforcement personnel, to safeguard the privacy of individuals involved in an investigation, and otherwise to prevent interference with an investigation.” Id. at *11. “[T]he law enforcement privilege is not absolute[;]” it is a qualified privilege that requires balancing “the public interest in nondisclosure against the need of the particular litigant for access to the privileged information.” Ibrahim, 2009 U.S. Dist. LEXIS, 122598 at *42 (internal quotation marks omitted). “When the records are both relevant and essential to the presentation of the case on the merits, the need for disclosure outweighs the need for secrecy, and the privilege is overcome.” Id. (internal quotation marks omitted). “It is appropriate to conduct the balancing test for determining whether

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CIVIL MINUTES – GENERAL

Case No. Title

CV 12-09012-AB (FFMx)

Date February 7, 2018

DUNCAN ROY ET AL. V. COUNTY OF LOS ANGELES ET AL.

the law enforcement privilege applies with an eye towards disclosure.” Id. (internal quotation marks omitted).
“In order to be protected by the deliberative process privilege, a document must be both (1) predecisional or antecedent to the adoption of the agency policy and (2) deliberative, meaning, it must actually be related to the process by which policies are formulated.” United States v. Fernandez, 231 F.3d 1240, 1246 (9th Cir. 2000) (internal citations and quotations omitted). Documents are pre-decisional when they were generated before the adoption of an agency’s policy or decision. Federal Trade Comm’n v. Warner Commc’ns, Inc., 742 F.2d 1156, 1161 (9th Cir. 1984). Documents are “deliberative” when they contain opinions, recommendations, or advice about agency policies.” Fernandez, 231 F.3d at 1246. Shielding such documents from discovery encourages forthright and candid discussions of ideas and, therefore, improves the decision-making process. Id. While facts and evidence are not protected by the deliberative process privilege, facts and evidence must be severable from the deliberative material to avoid the scope of the privilege’s protection. See Id. at 1247.
In the Gonzalez Defendants’ Motion to Strike, Defendants do not cite any particular statement from the expert witness declarations that are protected or privileged under any legal basis. (Mot. to Strike at 11–12.) Defendants argue that each of the expert witnesses had access to privileged information during their employment with DHS, and that DHS cannot tell whether their declarations include such information, and that therefore, the declarations should be stricken in their entirety. (Mot. to Strike at 11– 12.) However, the fact that Defendants cannot determine whether the declarations include any privileged or protected information highlights that Defendants have not met their burden of establishing that the declarations contain privileged information.
It is Defendants’ burden “to demonstrate that the privilege applies to the information in question.” See Tornay v. U.S., 840 F.2d 1424, 1426 (9th Cir. 1998); see also Mueller and Kirpatrick 2 Federal Evidence § 5:59 (4th ed.) (“In connection with both forms of the official information privilege—the deliberative process privilege or the law enforcement privilege—the government as claimant must bear the burden of raising the privilege and proving that the privilege applies.”) (emphasis added); Shah v. Dep’t of Justice, 89 F. Supp. 3d 1074, 1080 (D. Nev. 2015) (holding that “[f]or an agency to

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CIVIL MINUTES – GENERAL

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CV 12-09012-AB (FFMx)

Date February 7, 2018

DUNCAN ROY ET AL. V. COUNTY OF LOS ANGELES ET AL.

properly invoke the privilege: . . . the official must specify the information that is subject to the privilege and provide an explanation as to why the privilege applies.”).

Defendants’ failure to identify any information contained in the declarations that is privileged or subject to the work product doctrine, and their admission that they cannot point to specific information that is protected or privileged, warrants denial of Defendants’ Motion to Strike on the basis of privilege or protection grounds. See Tornay, 840 F.2d 1424; (see also Mot. to Strike at 11 (“Of course, Defendants cannot be more specific as to whether (and which) information fell under protected communications, because Plaintiffs failed to seek authorization to disclose DHS information . . . .”)).

3. Rule 26(a)(B)(i)

Finally, the Court does not strike Plaintiffs’ expert witness declarations on the basis of Rule 26(a)(B)(i). Rule 26(a)(2)(B)(i) provides that an expert report must contain “a complete statement of all opinions that the witness will express and the basis and reasons for them.” Fed. R. Civ. P. 26(a)(2)(B)(i). The parties’ deadline for expert disclosures (and accompanying expert reports) is not until March 16, 2018. (Dkt. No. 343.) Therefore, Plaintiffs’ expert witness declarations cannot violate Rule 26(a)(2)(B)(i) at this stage. The expert declarations at issue are based on the declarants’ personal observations and experiences. (See Dkt. Nos. 286–288.) Plaintiffs’ expert declarations are permissible as “[a]n expert may base an opinion on facts or data in the case that the expert has been made aware of or personally observed.” Fed. R. Evid. 703.

In conclusion, the Court DENIES the Gonzalez Defendants’ Motion to Strike (Dkt. No. 307).

B. OTHER EVIDENTIARY OBJECTIONS

“In motions for summary judgment with numerous objections, it is often unnecessary and impractical for a court to methodically scrutinize each objection and give a full analysis of each argument raised.” Doe v. Starbucks, Inc., No. 08–0582, 2009 WL 5183773, at *1 (C.D. Cal. Dec. 18, 2009). “This is especially true when many of the objections are boilerplate recitations of evidentiary principles or blanket objections without analysis applied to specific items of evidence.” Id.; see also Stonefire Grill, Inc.

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CIVIL MINUTES – GENERAL

Case No. Title

CV 12-09012-AB (FFMx)

Date February 7, 2018

DUNCAN ROY ET AL. V. COUNTY OF LOS ANGELES ET AL.

v. FGF Brands, Inc., 987 F. Supp. 2d 1023, 1033 (C.D. Cal. 2013) (explaining that “the Court will not scrutinize each objection and give a full analysis of identical objections raised as to each fact”). Per the Standing Order that was in effect at the time the parties filed the instant Motions, the parties are not to “submit blanket or boilerplate objections to the opponent’s statements of undisputed fact.” (Standing Order Regarding Newly Assigned Cases Rule 8(c)(iii).) “The boilerplate objections will be overruled and disregarded.” (Standing Order Regarding Newly Assigned Cases Rule 8(c)(iii).)

The parties raise a number of objections to the evidence proffered in support of and in opposition to the various Motions at issue, which the Court has reviewed. (See, e.g., Dkt. Nos. 276, 299, 311, 304, 296-9.) First, the Court overrules the boilerplate objections without analysis applied to specific items of evidence. See Starbucks, Inc., 2009 WL 5183773, at *1; see also Stonefire Grill, Inc, 987 F. Supp. 2d at 1033 (C.D. Cal. 2013); (Standing Order Regarding Newly Assigned Cases). Second, as stated above, the Court addressed the Gonzalez Defendants’ objections to the Gonzalez Plaintiffs’ expert witness declarations above in the Motion to Strike section. (See supra § III.A. (addressing arguments raised in Dkt. No. 296-9).) Finally, the Court OVERRULES as moot objections as to evidence that the Court does not consider in deciding Defendants’ Motion.9

IV. REQUEST FOR JUDICIAL NOTICE

Federal Rule of Evidence 201(b) states that “[t]he court may judicially notice a fact that is not subject to reasonable dispute because it: (1) is generally known within the trial court’s territorial jurisdiction; or (2) can be accurately and readily determined from sources whose accuracy cannot reasonably be questioned.” Fed. R. Evid. 201(b). Courts “may take judicial notice of records and reports of administrative bodies.” Interstate Nat.

9 Many of the parties’ objections regard specific deposition testimony upon which the Court does not rely, and thus, these objections are OVERRULED as moot. The rest of the objections that the parties raise assert objections without any analysis applied to the particular evidence, and are thus OVERRULED.

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UNITED STATES DISTRICT COURT CENTRAL DISTRICT OF CALIFORNIA

CIVIL MINUTES – GENERAL

Case No. Title

CV 12-09012-AB (FFMx)

Date February 7, 2018

DUNCAN ROY ET AL. V. COUNTY OF LOS ANGELES ET AL.

Gas Co. v. S. Cal. Gas Co., 209 F.2d 380, 385 (9th Cir. 1953). Courts may also take judicial notice of “matters of public record.” Davenport v. Bd. of Trustees of State Ctr. Cmty. Coll. Dist., 654 F. Supp. 2d 1073, 1095 (E.D. Cal. 2009); see also Fisher v. City of N. Myrtle Beach, No. 4:11-cv-1726-RBH-TER, 2012 WL 3638776, at *1 n.2 (D.S.C. 2012) (stating that courts may take judicial notice of factual information located on government websites).

On July 7, 2017, the Roy Defendants filed a Request for Judicial Notice in Support of Defendants’ Opposition to Plaintiffs’ Motion for Summary Adjudication Regarding Liability Issues. (Dkt. No. 277.) The Roy Defendants request that the Court take judicial notice of correspondence from Sheriff Jim McDonnell to the Los Angeles County Board of Supervisors concerning the “Report Back Regarding the Priority Enforcement Program.” (Dkt. No. 277 at 2.) On July 21, 2017, the Roy Defendants filed a second Request for Judicial Notice (Dkt. No. 301)10, requesting the Court to take judicial notice of the same correspondence in their July 7, 2017 Request for Judicial Notice. (Compare Dkt. No. 277 with Dkt. No. 301.) The Court GRANTS the Roy Defendants’ Requests for Judicial Notice as the LASD report in the September 22, 2015 letter is readily available to the public on a government website. See Davenport, 654 F. Supp. 2d at 1095 (E.D. Cal. 2009); see also Fisher, 2012 WL 3638776, at *1 n.2.11
On May 16, 2017, the Gonzalez Plaintiffs filed a Request for Judicial Notice in Support of their Second Motion for Partial Summary Judgment. (Dkt. No. 253.) The Gonzalez Plaintiffs request that the Court take judicial notice of twelve different records

10 The Roy Defendants improperly titled this motion as their “Request for Judicial Notice in Support of their Opposition to Plaintiffs’ Motion for Summary Adjudication Regarding Liability Issues, which is the same title as their other Request for Judicial Notice. (Compare Dkt. No. 301 with Dkt. No. 277.) Based on a footer on the blue backing of the chambers copy that the Defendants submitted to the Court and the Court’s docket, it appears that Defendants’ second Request for Judicial Notice was filed in Support of their Reply to Plaintiffs’ Opposition to Motion for Summary Judgment.
11 The correspondence from Sheriff Jim McDonnell to the Los Angeles County Board of Supervisors is available for public viewing on the Los Angeles County Website, available at http://file.lacounty.gov/SDSInter/bos/bc/233871_PEPICEReportBack09-22-15OrigLtr..pdf (last visited September 7, 2017).

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UNITED STATES DISTRICT COURT CENTRAL DISTRICT OF CALIFORNIA

CIVIL MINUTES – GENERAL

Case No. Title

CV 12-09012-AB (FFMx)

Date February 7, 2018

DUNCAN ROY ET AL. V. COUNTY OF LOS ANGELES ET AL.

or reports from DHS, ICE, the U.S. Department of Justice, Government Accountability Office, and the Census Bureau, all of which are publicly available online. (See Dkt. No. 253 at 1–6.) Because it is appropriate for the Court to take judicial notice of records and reports of administrative bodies and other matters of public record, the Court GRANTS the Gonzalez Plaintiffs’ Request for Judicial Notice. See Interstate Nat. Gas Co., 209 F.2d at 385; Davenport, 654 F. Supp. 2d at 1095 (E.D. Cal. 2009); see also Fisher, 2012 WL 3638776, at *1 n.2.
V. LEGAL STANDARD
A. Summary Judgment
Summary judgment is appropriate when, after adequate discovery, the evidence demonstrates that there is no genuine issue as to any material fact and the moving party is entitled to judgment as a matter of law. Fed. R. Civ. P. 56. A disputed fact is material where its resolution might affect the outcome of the suit under the governing law. Anderson v. Liberty Lobby Inc., 477 U.S. 242, 248 (1986). An issue is genuine if the evidence is sufficient for a reasonable jury to return a verdict for the non-moving party. Id. The moving party bears the initial burden of establishing the absence of a genuine issue of material fact. Celotex Corp. v. Catrett, 477 U.S. 317, 323–24 (1986). The moving party may satisfy that burden by showing “that there is an absence of evidence to support the non-moving party’s case.” Id. at 325.
Once the moving party has met its burden, the non-moving party “must do more than simply show that there is some metaphysical doubt as to the material facts.” Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 586 (1986). Rather, the non-moving party must go beyond the pleadings and identify specific facts that show a genuine issue for trial. Id. at 587. Only genuine disputes over facts that might affect the outcome of the lawsuit will properly preclude the entry of summary judgment. Anderson, 477 U.S. at 248; see also Arpin v. Santa Clara Valley Transp. Agency, 261 F.3d 912, 919 (9th Cir. 2001) (holding that the non-moving party must present specific evidence from which a reasonable jury could return a verdict in its favor). A genuine issue of material fact must be more than a scintilla of evidence, or evidence that is merely colorable or not significantly probative. Addisu v. Fred Meyer, Inc., 198 F.3d 1130, 1134 (9th Cir. 2000).

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UNITED STATES DISTRICT COURT CENTRAL DISTRICT OF CALIFORNIA

CIVIL MINUTES – GENERAL

Case No. Title

CV 12-09012-AB (FFMx)

Date February 7, 2018

DUNCAN ROY ET AL. V. COUNTY OF LOS ANGELES ET AL.

A court may consider the pleadings, discovery, and disclosure materials, as well as any affidavits on file. Fed. R. Civ. P. 56(c)(2). Where the moving party’s version of events differs from the non-moving party’s version, a court must view the facts and draw reasonable inferences in the light most favorable to the non-moving party. Scott v. Harris, 550 U.S. 372, 378 (2007).
Although a court may rely on materials in the record that neither party cited, it need only consider cited materials. Fed. R. Civ. P. 56(c)(3). Therefore, a court may properly rely on the non-moving party to identify specifically the evidence that precludes summary judgment. Keenan v. Allan, 91 F.3d 1275, 1279 (9th Cir. 1996). The district court is “not required to comb the record to find some reason to deny a motion for summary judgment.” See Forsberg v. Pac. Nw. Bell Tel. Co., 840 F.2d 1409, 1418 (9th Cir. 1988); see also Carmen v. S.F. Unified Sch. Dist., 237 F.3d 1026, 1031 (9th Cir. 2001) (“The district court need not examine the entire file for evidence establishing a genuine issue of fact, where the evidence is not set forth in the opposing papers with adequate references so that it could conveniently be found.”).
Finally, the evidence presented by the parties must be admissible. Fed. R. Civ. P. 56(e). Conclusory or speculative testimony in affidavits and moving papers is insufficient to raise a genuine issue of fact and defeat summary judgment. Thornhill’s Publ’g Co. v. GTE Corp., 594 F.2d 730, 738 (9th Cir. 1979). Conversely, a genuine dispute over a material fact exists if there is sufficient evidence supporting the claimed factual dispute, requiring a judge or jury to resolve the differing versions of the truth. Anderson, 477 U.S. at 253.
B. Dismissal Under Federal Rule of Civil Procedure 12(b)(1)
A motion to dismiss an action pursuant to Federal Rule of Civil Procedure 12(b)(1) raises the question of the federal court’s subject matter jurisdiction over the action. Fed. R. Civ. P. 12(b)(1). Because federal courts are of limited jurisdiction, they possess original jurisdiction only as the Constitution and statutes authorize. See Kokkonen v. Guardian Life Ins. Co. of Am., 511 U.S. 375, 377 (1994). Moreover, “no matter how important the issue, a court lacking jurisdiction is powerless to reach the merits under

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UNITED STATES DISTRICT COURT CENTRAL DISTRICT OF CALIFORNIA

CIVIL MINUTES – GENERAL

Case No. Title

CV 12-09012-AB (FFMx)

Date February 7, 2018

DUNCAN ROY ET AL. V. COUNTY OF LOS ANGELES ET AL.

Article III of the Constitution.” Fleck & Assocs., Inc. v. Phoenix, City of, an Ariz. Mun. Corp., 471 F.3d 1100, 1107 n.4 (9th Cir. 2006).

An attack on the Court’s subject-matter jurisdiction can take either a facial or factual form. See, e.g., Safe Air for Everyone v. Meyer, 373 F.3d 1035, 1039 (9th Cir. 2004). A facial challenge, as Defendants raise here, asserts that “the allegations contained in a complaint are insufficient on their face to invoke federal jurisdiction.” Id. In adjudicating a facial challenge, the Court must presume Plaintiffs’ allegations to be true and must draw all reasonable inferences in Plaintiffs’ favor. See, e.g., Wolfe v. Strankman, 392 F.3d 358, 362 (9th Cir. 2004); see also African Am. Contractors v. City of Oakland, 96 F.3d 1204, 1207 (9th Cir.1996).

The burden rests on “the party who seeks the exercise of jurisdiction in his favor clearly to allege facts demonstrating that he is a proper party to invoke judicial resolution of the dispute.” United States v. Hays, 515 U.S. 737, 743 (1995) (internal quotation marks omitted).

VI. DISCUSSION

A. Gonzalez Action
In the Gonzalez Plaintiffs’ Second Motion for Partial Summary Judgment, Plaintiffs raise two principal arguments with respect to the Probable Cause Subclass. First, Plaintiffs argue that ICE’s issuance of detainers based solely upon the use of the electronic databases violates the Fourth Amendment because such databases are inaccurate and incomplete. (Dkt. No. 247-1 at 14–20.) Second, Plaintiffs argue that ICE’s practice of issuing detainers based on the lack of information in the databases, coupled with some indication of foreign birth also violates the Fourth Amendment. (Dkt. No. 247-1 at 20–21.) This scenario is referred to as “foreign born no matches.” 12 (Dkt.

12 The parties refer to this group as: “foreign born no match,” “foreign birth-no match,” “foreign born no matches,” and “foreign born, no match.” Despite the slight variance in the terms used for this group, all terms refer to the same group.

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UNITED STATES DISTRICT COURT CENTRAL DISTRICT OF CALIFORNIA

CIVIL MINUTES – GENERAL

Case No. Title

CV 12-09012-AB (FFMx)

Date February 7, 2018

DUNCAN ROY ET AL. V. COUNTY OF LOS ANGELES ET AL.

No. 247-1 at 21.) As to the Statutory Subclass, Plaintiffs claim that ICE’s practice of issuing detainers without making any assessment of flight risk violates 8 U.S.C. section 1357(a)(2), which permits ICE to make warrantless arrests only if it has determined that the individual is “likely to escape before a warrant can be obtained for his arrest.” (Dkt. No. 247-1 at 21.)
In ICE’s Motion to Dismiss and for Partial Summary Judgment, ICE argues that this Court lacks subject matter jurisdiction over Plaintiffs’ claims because the INA provides exclusive judicial review through the Petition for Review process. (Dkt. No. 239-1 at 10–15.) As to the Probable Cause Subclass, ICE asserts that judgment should be granted in ICE’s favor because the Fourth Amendment does not require ICE to alter its practices of using the electronic databases in determining whether probable cause exists to issue a detainer. (Dkt. No. 239-1 at 16–20.) Finally, ICE contends that judgment should be granted in ICE’s favor as to the Statutory Subclass because ICE no longer issues detainers without a warrant, rendering Plaintiffs’ claims moot. (Dkt. No. 239-1 at 15–16.)
The Court will first address ICE’s argument that this Court does not have jurisdiction over Plaintiffs’ claims. The Court will next discuss the parties’ arguments pertaining to the Probable Cause Subclass. Finally, the Court will address the parties’ arguments regarding the Statutory Subclass.
1. Jurisdiction
The Gonzalez Defendants (ICE) seek dismissal of the Gonzalez Plaintiffs’ claims under Federal Rule of Civil Procedure 12(b)(1) for lack of subject matter jurisdiction. (Dkt. No. 239 at 10.) Defendants explain that “Congress . . . has expressed its clear intent to foreclose district court adjudication of claims that individuals could raise in removal proceedings through the jurisdiction channeling provisions of the Immigration and Nationality Act (‘INA’), 8 U.S.C. § 1252(a)(5), (b)(9), and (g).” (Dkt. No. 239 at 10.) Defendants argue that “Plaintiffs’ challenge to the detainer process—in which ICE seeks to detain individuals to determine how, if at all, to proceed with their removal—‘arise[s] from an[] action taken or proceeding brought to remove [them] from the United States.’” (Dkt. No. 239 at 11.)

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UNITED STATES DISTRICT COURT CENTRAL DISTRICT OF CALIFORNIA

CIVIL MINUTES – GENERAL

Case No. Title

CV 12-09012-AB (FFMx)

Date February 7, 2018

DUNCAN ROY ET AL. V. COUNTY OF LOS ANGELES ET AL.

Title 8 of the United States Code section 1252(a)(5) titled, “Exclusive means of review,” “prescribes the vehicle for judicial review: ‘[A] petition for review . . . shall be the sole and exclusive means for judicial review of an order of removal . . . .’” J.E.F.M. v. Lynch, 837 F.3d 1026, 1031 (9th Cir. 2016) (citing 8 U.S.C. § 1252(a)(5)). “Lest there be any question about the scope of judicial review, § 1252(b)(9) mandates that ‘[j]udicial review of all questions of law and fact, including interpretation and application of constitutional and statutory provisions, arising from any action taken or proceeding brought to remove an alien from the United States . . . shall be available only in judicial review of a final order . . . .” Id. (citing 8 U.S.C. § 1252(b)(9)).
“The Supreme Court has . . . characterized § 1252(b)(9) as a zipper clause . . . explaining that the statute’s purpose is to consolidate judicial review of immigration proceedings into one action in the court of appeals.” Id. (citations and internal quotation marks omitted). “[E]qually importantly, § 1252(b)(9) has built-in limits. By channeling only those questions ‘arising from any action taken or proceeding brought to remove an alien,’ the statute excludes from the PFR process any claim that does not arise from removal proceedings.” Id. at 1032. “Accordingly, claims that are independent of or collateral to the removal process do not fall within the scope of § 1252(b)(9).” Id. (citing Torres-Tristan v. Holder, 656 F.3d 653, 658 (7th Cir. 2011) (“Ancillary determinations made outside the context of a removal proceeding, however, are not subject to direct review.”); Aguilar v. ICE, 510 F.3d 1, 11 (1st Cir. 2007) (reading “arising from” “to exclude claims that are independent of, or wholly collateral to, the removal process”)). In J.E.F.M., the Ninth Circuit “conclud[ed] that §§ 1252(a)(5) and 1252(b)(9) channel review of all claims, including policies-and practices challenges, through the PFR process whenever they ‘arise from’ removal proceedings.” Id. at 1035.
The subclasses remaining in the Gonzalez action consist of individuals who were not subject to ongoing removal proceedings and were subject to detainers that were not based upon a final order of removal signed by an immigration judge. (See Dkt. 184 at 12–13.) Thus, distinct from the right-to-counsel claims at issue in J.E.F.M., which arose from removal proceedings, Plaintiffs’ claims here do not “arise from” removal proceedings because the Gonzalez Plaintiffs were not subject to ongoing removal proceedings at the time that ICE issued detainers against them, and the detainers were not based upon a final order of removal signed by a judge. See J.E.F.M., 837 F.3d at 1031– 35; (Dkt. No. 184 at 12–13). “Because [Plaintiffs’] . . . claims relate to the ICE officers’

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CIVIL MINUTES – GENERAL

Case No. Title

CV 12-09012-AB (FFMx)

Date February 7, 2018

DUNCAN ROY ET AL. V. COUNTY OF LOS ANGELES ET AL.

actions before removal proceedings were filed, and do not seek to disrupt the outcome of removal proceedings, the Court finds that they are independent of the removal process. As a result, §§ 1252(a)(5) and 1252(b)(9) do not strip this Court of jurisdiction.” See Medina v. U.S. DHS, No. C17-218-RSM-JPD, 2017 WL 2954719, at *11 (W.D. Wash. March 14, 2017) (emphasis in original).
Additionally, in J.E.F.M., the Ninth Circuit explained that “while [section 1252(a)(5) and 1252(b)(9) limit how immigrants can challenge their removal proceedings, they are not jurisdiction-stripping statutes that, by their terms, foreclose all judicial review of agency actions. Instead, the provisions channel judicial review over final orders of removal to the courts of appeals.” J.E.F.M., 837 F.3d at 1031 (emphasis in original). Here, many of the class members, while subject to detainers, were or are never placed in removal proceedings. Therefore, if the Court were to determine that it does not have jurisdiction over Plaintiffs’ claims it would be tantamount to denial of judicial review. And as the Ninth Circuit has explained, section 1252(a) and 1252(b) “are not jurisdiction-stripping statutes that, by their terms, foreclose all judicial review of agency actions.” See J.E.F.M., 837 F.3d at 1031. Thus, this Court’s exercise of jurisdiction is consistent with Ninth Circuit precedent.
Finally, the Ninth Circuit has held that “§ 1252(g) does not bar review of . . . actions that occurred prior to any decision to ‘commence [removal] proceedings,’ if any, . . . or to execute [a] removal order.” Kwai fun Wong v. United States, 373 F.3d 952, 965 (9th Cir. 2004) (emphasis in original). Therefore, because Plaintiffs’ claims challenge action that occurred before any decision to commence removal proceedings, section 1252(g) does not bar this Court’s review of Plaintiffs’ claims. See id.; (Dkt. No. 184 at 12–13).
Therefore, the Court DENIES the Gonzalez Defendants’ Motion to Dismiss for lack of subject matter jurisdiction under Federal Rule of Civil Procedure 12(b)(1). (Dkt. No. 239.)
2. Probable Cause Subclass
The Fourth Amendment protects against “unreasonable searches and seizures.” U.S. Const. amend. IV. The Supreme Court has held that the Fourth Amendment’s

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CIVIL MINUTES – GENERAL

Case No. Title

CV 12-09012-AB (FFMx)

Date February 7, 2018

DUNCAN ROY ET AL. V. COUNTY OF LOS ANGELES ET AL.

protections require law enforcement to have probable cause before detaining a person. See Terry v. Ohio, 392 U.S. 1, 38 (1968) (“The infringement on personal liberty of any ‘seizure’ of a person can only be ‘reasonable’ under the Fourth Amendment if we require the police to possess ‘probable cause’ before they seize him.”). Probable cause requires “facts and circumstances ‘sufficient to warrant a prudent man in believing that the (suspect) had committed or was committing an offense.’” Gerstein v. Pugh, 420 U.S. 103, 111 (1975) (quoting Beck v. Ohio, 379 U.S. 89, 91 (1964)).

An ICE agent is required to have probable cause to issue a warrantless detainer. See Morales v. Chadbourne, 793 F.3d 208, 211 (1st Cir. 2015). The Gonzalez Plaintiffs argue that ICE lacks probable cause when it issues detainers in sole reliance on federal immigration databases that it knows to be inaccurate, incomplete, and outdated. (Dkt. No. 247-1 at 15.) Defendants argue that the Fourth Amendment does not prohibit ICE from relying on database checks to determine that there is probable cause that a particular individual is removable. (Dkt. No. 239-1 at 18.) 13
“The probable-cause standard is incapable of precise definition or quantification into percentages because it deals with probabilities and depends on the totality of the circumstances.” Maryland v. Pringle, 540 U.S. 366, 371 (2003). The Supreme Court has “stated, however, that ‘[t]he substance of all the definitions of probable cause is a reasonable ground for belief of guilt,’ and that the belief of guilt must be particularized with respect to the person to be searched or seized.” Id. (citations omitted). “To determine whether an officer had probable cause to arrest an individual, we examine the events leading up to the arrest, and then decide ‘whether these historical facts, viewed from the standpoint of an objectively reasonable . . . officer, amount to’ probable cause.” Id. (citations omitted).

13 ICE also raises arguments which cannot apply to the Probable Cause Subclass. (Dkt. No. 272 at 11– 12.) ICE argues that it does not issue immigration detainers based solely on immigration databases. (Dkt. No. 272 at 12.) However, this argument does not apply to the Probable Cause Subclass because by definition, the Probable Cause Subclass consists of only those individuals subject to detainers in which probable cause was exclusively determined from reliance on databases, not any other individuals subject to detainers in which probable cause was based upon databases and other methods, such as interviews with the individual, or reliance on final orders of removal. (Dkt. No. 184 at 12–13.)

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UNITED STATES DISTRICT COURT CENTRAL DISTRICT OF CALIFORNIA

CIVIL MINUTES – GENERAL

Case No. Title

CV 12-09012-AB (FFMx)

Date February 7, 2018

DUNCAN ROY ET AL. V. COUNTY OF LOS ANGELES ET AL.

Law enforcement agencies may rely on computer databases to establish probable cause if it is reasonable for them to do so. See Herring v. United States, 555 U.S. 135, 146–47 (2009) (declining to apply exclusionary rule because officer’s reliance on computer database is reasonable where no evidence of routine or widespread errors on computer database exist); id. at 146 (“In a case where systematic errors were demonstrated, it might be reckless for officers to rely on an unreliable warrant system.”); Arizona v. Evans, 514 U.S. 1, 17 (1995) (O’Connor, J., concurring) (“Surely it would not be reasonable for the police to rely . . . on a recordkeeping system . . . that routinely leads to false arrests.”); Hudson v. Michigan, 547 U.S. 586, 605 (Kennedy, J., concurring in part and concurring in judgment) (“If a widespread pattern of violations were shown . . . there would be reason for grave concern.”). “Relying on an information system which knowingly and structurally provides for a class of erroneous warrants will result in civil liability. It is one thing to have random errors, which may occur in even the best of systems, but where the information system, by its very design generates false positives of a specific category that can easily be avoided, it may not be reasonably relied upon.” Willis v. Mullins, 517 F. Supp. 2d 1206, 1225–26 (E.D. Cal. 2007).
Thus, the issue as to whether summary judgment should be entered as to the Probable Cause Subclass turns on whether the databases that ICE uses are complete and reliable such that they are a sufficient source for the probable cause determination.
The Court finds that a factual dispute exists as to the reliability of the databases that ICE uses, and thus summary judgment on this issue is not appropriate. See GarterBare Co. v. Munsingwear, Inc., 650 F.2d 975, 980–81 (9th Cir. 1980) (stating that it is a “well-established rule that the trial judge cannot weigh evidence or judge the credibility of witnesses” on a motion for summary judgment”). It is undisputed that “ICE requires contractors and agents issuing detainers on the basis of electronic database checks alone to check only four databases prior to issuing a detainer. Those databases are the following: (1) Central Index System (“CIS”), (2) Computer Linked Application Information Management Systems (“CLAIMS”), (3) Treasury Enforcement Communications System (“TECS”), and (4) Enforcement Case Tracking System (“ENFORCE”)/ EARM.” (Dkt. No. 297-1 ¶ 70.) It is also undisputed that “there is no requirement that contractors or agents check any other databases; they are left to their discretion to do so if they feel it is necessary.” (Dkt. No. 297-1 ¶ 71.) Plaintiffs assert that “[i]n addition to the significant gaps of information in CIS and CLAIMS, CIS and

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CIVIL MINUTES – GENERAL

Case No. Title

CV 12-09012-AB (FFMx)

Date February 7, 2018

DUNCAN ROY ET AL. V. COUNTY OF LOS ANGELES ET AL.

CLAIMS databases are also replete with errors, of which ICE is well aware.” (Dkt. No. 297-1 ¶ 93.) While Plaintiffs cite evidence supporting that ICE encounters errors in CIS in approximately three out of ten cases, ICE cites evidence that an error in one or more of the databases could be overcome by the totality of searches that includes other databases. (Dkt. No. 297-1 ¶ 94.) Because the Court cannot weigh evidence at this stage in the proceedings, the Court finds that the factual dispute as to the reliability of ICE’s use of its databases to establish probable cause bars summary judgment as to this issue. See Garter-Bare Co., 650 F.2d at 980–81 (9th Cir. 1980).
As a result, the Court DENIES the Gonzalez Plaintiffs’ Second Motion for Partial Summary Judgment as to the Probable Cause Subclass, with the exception of the “foreign born no match” group addressed separately and discussed below. The Court also DENIES the Gonzalez Defendants’ Motion for Partial Summary Judgment as to the Probable Cause Subclass.
3. “Foreign Born No Match”

“Until June 2015, ICE had a policy and practice of issuing detainers based on a person’s foreign birth and no records in an immigration database (known as a ‘foreign born no match’).” (Dkt. No. 296-8 ¶ 136.) “ICE admits that evidence of foreign birth and no match in a federal immigration database is not probable cause of removability.” (Dkt. No. 296-8 ¶ 138.) “In 2015, DHS announced that immigration detainers would no longer be issued based on ‘Foreign Birth-No Match.’” (Dkt. No. 296-8 ¶ 140.)
ICE argues that Plaintiffs should not be entitled to summary judgment on the “foreign born no matches” group of the Probable Cause Subclass because ICE no longer issues detainers on “foreign born no matches” as of 2015, essentially arguing that Plaintiffs’ claim is moot. (Dkt. No. 272 at 18–19.)
“The voluntary cessation of challenged conduct does not ordinarily render a case moot because a dismissal for mootness would permit a resumption of the challenged conduct as soon as the case is dismissed.” Knox v. Serv. Emps. Int’l Union, Local 1000, 132 S. Ct. 2277, 2287 (2012). “The standard for determining whether a defendant’s voluntary conduct moots a case is ‘stringent: A case might become moot if subsequent events made it absolutely clear that the allegedly wrongful behavior could not reasonably

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CIVIL MINUTES – GENERAL

Case No. Title

CV 12-09012-AB (FFMx)

Date February 7, 2018

DUNCAN ROY ET AL. V. COUNTY OF LOS ANGELES ET AL.

be expected to recur.’” Bell v. City of Boise, 709 F.3d 890, 898 (9th Cir. 2013) (quoting Friends of the Earth, Inc. v. Laidlaw Envtl. Servs. (TOC), Inc., 528 U.S. 167, 189 (2000)). The party asserting mootness bears a “heavy burden” of establishing that “the challenged conduct cannot reasonably be expected to start up again.” Friends of the Earth, 528 U.S. at 189. “This heavy burden applies to a government entity that voluntarily ceases allegedly illegal conduct.” Bell, 709 F.3d at 898–99.
ICE does not meet its heavy burden of establishing that it will not resume its practice of issuing warrantless detainers on “foreign born no matches.” ICE has not alleged any facts to support its heavy burden that ICE cannot reasonably be expected to return to its practice of issuing detainers based on “foreign born no matches” in the database. (See Dkt. No. 272 at 18–19.) Thus, Plaintiffs’ claim is not moot.
Because it is undisputed that “evidence of foreign birth and no match in a federal immigration database is not probable cause of removability,” the Court GRANTS the Gonzalez Plaintiffs’ Second Motion for Partial Summary Judgment as to those individuals in the “foreign born no matches” group. (See Dkt. No. No. 296-8 ¶ 138.)
4. Statutory Subclass
The Gonzalez Plaintiffs claim that the undisputed facts establish that it is ICE’s policy and practice to issue detainers to those in the Statutory Subclass without making any assessment of flight risk. (Dkt. No. 247-1 at 21.) According to Plaintiffs, this conduct violates 8 U.S.C. section 1357(a)(2), which permits ICE to make warrantless arrests only if it has determined that the individual is “likely to escape before a warrant can be obtained for his arrest.” (Dkt. No. 247-1 at 21.)
Defendants argue that because ICE no longer issues detainers without warrants, judgment should be entered in ICE’s favor. (Dkt. No. 239-1 at 15–16.) According to ICE, Plaintiffs’ claim challenges prior policy, not current policy, and therefore, Plaintiffs’ claim is moot. (Dkt. No. 239-1 at 16.)
Title 8 of the United States Code section 1357(a)(2) “grants INS officers the power to make warrantless civil deportation arrests.” Mountain High Knitting, Inc. v. Reno, 51 F.3d 216, 218 (9th Cir. 1995). “Section 1357(a)(2) requires that the arresting officer

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CIVIL MINUTES – GENERAL

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CV 12-09012-AB (FFMx)

Date February 7, 2018

DUNCAN ROY ET AL. V. COUNTY OF LOS ANGELES ET AL.

reasonably believe that the alien is in the country illegally and that she ‘is likely to escape before a warrant can be obtained for [her] arrest.’” Id. (emphasis in original). The undisputed facts establish that it was ICE’s policy to issue warrantless detainers for those in the Statutory Subclass without first determining whether those individuals were “likely to escape before a warrant could be obtained.” (Dkt. No. 297-1 ¶ 154.) Thus, ICE’s practices were in contravention of 8 U.S.C. section 1357(a)(2). 8 U.S.C. § 1357(a)(2); see also Moreno v. Napolitano, 213 F. Supp. 3d 999, 1000 (N.D. Ill. 2016) (granting summary judgment in favor of Plaintiffs’ statutory class claim that DHS exceeded its statutory authority “by seeking to detain individuals without a warrant and without a determination by ICE that the individuals are ‘likely to escape’ within the meaning of 8 U.S.C. § 1357(a)(2)”).
Just as the Court held above with respect to ICE’s practice of detaining those in the “foreign born no match” group, ICE has not met its heavy burden of establishing that it will not resume its practice of issuing warrantless detainers without making an assessment of whether an individual is a flight risk. Friends of the Earth, 528 U.S. at 189; Knox, 132 S. Ct. at 2287. On its face, ICE’s 2017 Detainer Policy permits ICE to change its policies as it so chooses. (See Dkt. No. 297-1 ¶ 157.) ICE’s “2017 Detainer Policy provides that it ‘may be modified, rescinded, or superseded at any time without notice’ and that ‘no limitations are placed by this guidance on otherwise lawful enforcement or litigative prerogatives of ICE.’” (Dkt. No. 297-1 ¶ 157) Thus, Plaintiffs’ claim is not moot. Bell, 709 F.3d at 898 (“The standard for determining whether a defendant’s voluntary conduct moots a case is ‘stringent: A case might become moot if subsequent events made it absolutely clear that the allegedly wrongful behavior could not reasonably be expected to recur.’”) (quoting Friends of the Earth, Inc., 528 U.S. at 189).
Therefore, the Court GRANTS the Gonzalez Plaintiffs’ Second Motion for Partial Summary Judgment as to the Statutory Subclass. The Court DENIES the Gonzalez Defendants’ Motion to Dismiss and for Partial Summary Judgment as to the Statutory Subclass.
B. Roy Action
As stated above, two other Motions pending before the Court are the Roy Plaintiffs’ Motion for Summary Adjudication Regarding Liability (Dkt. No. 240), and the

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CIVIL MINUTES – GENERAL

Case No. Title

CV 12-09012-AB (FFMx)

Date February 7, 2018

DUNCAN ROY ET AL. V. COUNTY OF LOS ANGELES ET AL.

Roy Defendants’ Motion for Summary Judgment, or Alternatively, Partial Summary Judgment (Dkt. No. 242). In this section, the Court will address the Roy parties’ arguments in their cross-motions.
1. Section 1983 Fourth Amendment Claims
a. Investigative Detainer Class
In the Roy Plaintiffs’ Motion for Summary Adjudication Regarding Liability, Plaintiffs argue that they are entitled to summary adjudication on the “investigative” detainer class. (Dkt. No. 240 at 13–14.) According to Plaintiffs, “the LASD honored . . . immigration detainers that requested detention on the sole grounds that an investigation had been initiated, facially communicating that ICE had not yet acquired evidence to support probable cause of removability.” (Dkt. No. 240 at 13 (emphasis in original).) Defendants argue that while the language on ICE’s detainer forms have been modified several times during the period relevant to the case, “ICE agents have always been required to establish . . . the existence of probable cause of a subject’s removability from the United States, prior the issuance of a detainer.” (Dkt. No. 273 at 5 (emphasis omitted).)
It is undisputed that “[t]he 8/2010 version of the I-247 Form includes four checkboxes indicating the basis for issuing an immigration detainer; the first box states ‘Investigation has been initiated to determine whether this person is subject to removal from the United States.’” (Dkt. No. 275 ¶ 2.) It is also undisputed that “[t]he 6/2011 version of the I-247 Form includes four checkboxes indicating the basis for issuing an immigration detainer; the first box states ‘Initiated an investigation to determine whether this person is subject to removal from the United States.’” (Dkt. No. 275 ¶ 3.) “During the class period, ICE issued 21,179 detainers to the LASD with the ‘initiated an investigation’ or ‘investigation has been initiated’ box checked, and 2,911 detainers with no detainer reason box checked.” (Dkt. No. 275 ¶ 5.)

Plaintiffs argue that the “investigative detainers” expressly disclaim the existence of probable cause on their face. (Dkt. No. 279 ¶ 154.) However, Defendants argue that despite whatever form was used and what the options on the form were, ICE was always required to issue detainers based upon probable cause, meaning that the boxes on the

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UNITED STATES DISTRICT COURT CENTRAL DISTRICT OF CALIFORNIA

CIVIL MINUTES – GENERAL

Case No. Title

CV 12-09012-AB (FFMx)

Date February 7, 2018

DUNCAN ROY ET AL. V. COUNTY OF LOS ANGELES ET AL.

form were not always indicative of the probable cause basis for the detainer. (See Dkt. No. 279 ¶ 83.) Because there is a material factual dispute as to whether the “investigative detainers” were actually based on probable cause, and the box checked indicated something else, or whether they were not based on probable cause and the “investigative detainers” meant that an investigation into probable cause was occurring, rather than some sort of other investigation, summary judgment as to this issue is not proper. See Anderson, 477 U.S. at 247–52 (explaining that in deciding motions for summary judgment, the court rules only on questions of law and does not weigh evidence). As a result the Court DENIES Plaintiffs’ Motion for Summary Adjudication Regarding Liability as to the Investigative Detainer Class.
b. Post-48 Hour Gerstein Subclass
In the Roy Plaintiffs’ Motion for Summary Adjudication Regarding Liability, Plaintiffs argue that they are entitled to summary adjudication on liability for the Post-48 Hour Gerstein Class. (Dkt. No. 240 at 10–13.) It is undisputed that “[f]rom October 2010 until June 2014,” it was LASD’s policy and practice “to detain individuals beyond the time they were eligible for release on the immigration detainer for up to 48 hours excluding weekends and holidays.” (Dkt. No. 275.) In the Roy Defendants’ Motion for Summary Judgment, Defendants argue that Plaintiffs’ claim improperly relies on a rule exclusive to criminal proceedings for providing judicial probable cause determinations within 48 hours of a warrantless criminal arrest. (Dkt. No. 242 at 20.)
To address whether either party is entitled to summary judgment as to the Post-48 Hour Gerstein Subclass it is necessary to first discuss the purpose of detainers and determine whether the LASD’s practice of holding inmates subject to detainers beyond the date they were eligible for release constitutes an “arrest” under the Fourth Amendment.
i. Purpose of ICE Detainers
ICE is permitted to issue a detainer to a law enforcement agency to “seek[] custody of an alien presently in custody of that agency, for the purpose of arresting and removing the alien.” 8 C.F.R. § 287.7(a). “Once the alien has completed her criminal custody and is ‘not otherwise detained by a criminal justice agency,’ the detainer instructs the agency

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UNITED STATES DISTRICT COURT CENTRAL DISTRICT OF CALIFORNIA

CIVIL MINUTES – GENERAL

Case No. Title

CV 12-09012-AB (FFMx)

Date February 7, 2018

DUNCAN ROY ET AL. V. COUNTY OF LOS ANGELES ET AL.

to ‘maintain custody of the alien for a period not to exceed 48 hours, excluding Saturdays, Sundays, and holidays[,] in order to permit assumption of custody by [ICE].’” Morales, 793 F.3d at 214 (citing 8 C.F.R. § 287.7(d)). A “detainer is a request that [another law enforcement] agency advise [ICE], prior to release of the alien, in order for [ICE] to arrange to assume custody” of the alien. 8 C.F.R. § 287.7(a). “Thus, the sole purpose of a detainer is to request the continued detention of an alien so that ICE officials may assume custody of that alien and investigate whether to initiate removal proceedings against her.” Morales, 793 F.3d at 214–15. “[F]ederal law leaves compliance with immigration holds wholly within the discretion of states and localities.” Flores v. City of Baldwin Park, No. CV 14-9290-MWF (JCx), 2015 WL 756877, at *4 (C.D. Cal. Feb. 23, 2016) (citing Galarza v. Szalczyk, 745 F.3d 634, 640–43 (3d Cir. 2014) (holding that “immigration detainers are requests and not mandatory orders” and observing that “all federal agencies and departments having an interest in the matter have consistently described such detainers as requests”)).

ii. Whether Detainment of Individuals Beyond the Time They are Due For Release Constitutes a New Arrest for Purposes of the Fourth Amendment
It is well-established that “[t]he Fourth Amendment applies to all seizures of the person, including seizures that involve only a brief detention short of traditional arrest.” United States v. Brignoni-Ponce, 422 U.S. 873, 878 (1975). Under the Fourth Amendment, “a fair and reliable determination of probable cause” must be provided “as a condition for any significant pretrial restraint of liberty.” Baker v. McCollan, 443 U.S. 137, 142 (1979). If an individual is “kept in custody for a new purpose after [the individual is] entitled to release, [that individual] was subjected to a new seizure for Fourth Amendment purposes—one that must be supported by a new probable cause justification.” Id. Thus, where a “continued detention exceed[s] the scope of the Jail’s lawful authority over the released detainee,” the detention “constitute[s] a new arrest, and must be analyzed under the Fourth Amendment.” Miranda-Olivares v. Clackamas Cty., No. 3:12-cv-02317-ST, 2014 WL 1414305, at *10 (D. Or. Apr. 11, 2014).

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UNITED STATES DISTRICT COURT CENTRAL DISTRICT OF CALIFORNIA

CIVIL MINUTES – GENERAL

Case No. Title

CV 12-09012-AB (FFMx)

Date February 7, 2018

DUNCAN ROY ET AL. V. COUNTY OF LOS ANGELES ET AL.

Probable cause exists when the facts and circumstances are “sufficient to warrant a prudent man in believing that the (suspect) had committed or was committing an offense.” Gerstein, 420 U.S. at 111–12 (internal quotation marks omitted). “By its definition, probable cause can only exist in relation to criminal conduct. It follows that civil disputes cannot give rise to probable cause.” Allen v. City of Portland, 73 F.3d 232, 237 (9th Cir. 1995). “The Supreme Court has characterized deportation and removal proceedings as ‘civil in nature.’” Mercado v. Dallas County, Texas, 229 F. Supp. 3d 501, 511 (N.D. Tex. 2017) (citing Padilla v. Kentucky, 559 U.S. 356 (2010)); see also Melendres v. Arpaio, 695 F.3d 990, 1001 (9th Cir. 2012) (“[B]ecause mere unauthorized presence is not a criminal matter, suspicion of unauthorized presence alone does not give rise to an inference that criminal activity is ‘afoot.’”).

“Although the Supreme Court has not resolved whether local police officers may detain or arrest an individual for suspected criminal immigration violations, the Court has said that local officers generally lack authority to arrest individuals suspected of civil immigration violations.” Santos v. Frederick Cty. Bd. of Comm’rs, 725 F.3d 451, 465 (4th Cir. 2013). Courts “have universally . . . interpreted Arizona v. United States as precluding local law enforcement officers from arresting individuals solely based on known or suspected civil immigration violations.” Id. (citing 567 U.S. 387 (2012)). “The rationale for this . . . is straightforward[:] A law enforcement officer may arrest a suspect only if the officer has probable cause to believe that the suspect is involved in criminal activity.” Id. (quoting Brown v. Texas, 443 U.S. 47, 51 (1979)) (internal quotation marks omitted). “Because civil immigration violations do not constitute crimes, suspicion or knowledge that an individual has committed a civil immigration violation, by itself, does not give a law enforcement officer probable cause to believe that the individual is engaged in criminal activity.” Id. “Additionally, allowing local law enforcement officers to arrest individuals for civil immigration violations would infringe on the substantial discretion Congress entrusted to the Attorney General in making removability decisions, which often require the weighing of complex, diplomatic, political, and economic considerations.” Id. (citing Arizona, 567 U.S. at 407–09).

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UNITED STATES DISTRICT COURT CENTRAL DISTRICT OF CALIFORNIA

CIVIL MINUTES – GENERAL

Case No. Title

CV 12-09012-AB (FFMx)

Date February 7, 2018

DUNCAN ROY ET AL. V. COUNTY OF LOS ANGELES ET AL.

Here, the undisputed evidence establishes that LASD held inmates beyond their release dates on the basis of immigration detainers. (Dkt. No. 275 ¶ 16 (Defendants respond that it is “[u]ndisputed” that “[f]rom October 2010 until June 2014, LASD’s policy and practice was to detain individuals beyond the time they were eligible for release on the immigration detainer for up to 48 hours excluding weekends and holidays.”).) Because this constitutes a new arrest under the Fourth Amendment, the LASD could only arrest these individuals if LASD officers had probable cause to suspect that the individuals were involved in criminal activity. See Gerstein, 420 U.S. at 111–12; Allen, 73 F.3d at 237. The LASD officers did not have probable cause that the individuals were involved in criminal activity, but were instead holding these individuals on the basis of civil immigration detainers. (Dkt. No. 275 ¶ 16.) The LASD officers have no authority to arrest individuals for civil immigration offenses, and thus, detaining individuals beyond their date for release violated the individuals’ Fourth Amendment rights. See Santos, 725 F.3d at 465.

Because the LASD did not have authority to arrest these individuals for suspected civil immigration violations, LASD’s detention of those in the Post-48 Hour Gerstein Subclass was in contravention of the Fourth Amendment. Therefore, the Court GRANTS Plaintiffs’ Motion for Summary Adjudication Regarding Liability as to the Post-48 Hour Gerstein Subclass. The Court DENIES Defendants’ Motion for Summary Judgment, or Alternatively, Partial Summary Judgment as to the Post-48 Hour Gerstein Subclass.

2. No-Bail Notation Class and No-Money Bail Subclass
The Roy Plaintiffs argue that they are entitled to summary adjudication on liability as to the No-Bail Notation Class and the No-Money Bail Subclass. (Dkt. No. 240 at 18– 25.) Defendants argue that they are entitled to summary judgment as “to all of Plaintiffs’ claims based on an alleged denial of the right to post bail.” (Dkt. No. 273 at 14; Dkt. No. 242 at 10–11.)
a. No-Bail Notation Class

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UNITED STATES DISTRICT COURT CENTRAL DISTRICT OF CALIFORNIA

CIVIL MINUTES – GENERAL

Case No. Title

CV 12-09012-AB (FFMx)

Date February 7, 2018

DUNCAN ROY ET AL. V. COUNTY OF LOS ANGELES ET AL.

“LASD entered immigration detainers into their data system as an additional ‘charge’ on the inmate.” (Dkt. No. 275 ¶ 29.) “Within LASD’s database system, some charges or holds have specific bail amounts attached to them, while others do not have a specific dollar amount.” (Dkt. No. 275 ¶ 30.) “Charges or holds that do not have a specific dollar amount are designated as ‘No Bail’ holds.” (Dkt. No. 275 ¶ 31.) According to Plaintiffs, “[a]side from ICE holds, the ‘No Bail’ notation is used exclusively for holds for which the inmate cannot post bail, including state prison holds (indicating that the state prison has custody of the inmate), probation holds indicating that the person may not be released due to probation violation) and warrants for which there is no bail.” (Dkt. No. 275 ¶ 32.) Defendants contend that the “No Bail” notation is not used exclusively for holds for which the inmate cannot post bail, but rather, the “No Bail” notation is used for holds when there is no bail amount specified, unlike most criminal charges which are assigned a specific dollar figure. (Dkt. No. 275 ¶¶ 32–34.) Plaintiffs contend that if an inmate was subject to an immigration detainer, the inmate was not allowed to post bail, and Defendants argue that it has always been the LASD’s policy and practice to allow inmates subject to immigration detainers to post bail. (See Dkt. No. 275 ¶¶ 46–47.)
Defendants argue that “the only Plaintiff seeking any damages claims, Plaintiff Martinez-Perez, has no viable bail-related claim due to the absence of any admissible evidence of any attempt by anyone to post bail on his behalf,” and that Defendants are entitled to summary judgment as to the No-Bail Notation Class. (Dkt. No. 273 at 14; Dkt. No. 242 at 10.) Plaintiffs claim that Defendants misconstrue Plaintiffs’ liability theories for the no-bail class. (Dkt. No. 278.) According to Plaintiffs, liability does not hinge on whether the LASD specifically communicated to any individual that they could not post bail due to an ICE detainer, but rather, liability turns on whether LASD’s practice of characterizing all ICE detainers as “no bail” holds effectively denied ICE-hold inmates the right to post bail. (Dkt. No. 278.)
Because there is a factual dispute as to the meaning and practical implementation of the “No Bail” notation, summary judgment is not appropriate as to the No Bail Notation Class. (See Dkt. No. 275 ¶¶ 32–34, 46–47.) Therefore, the Court DENIES both Plaintiffs’ Motion for Summary Adjudication Regarding Liability and the Roy Defendants’ Motion for Summary Judgment, or Alternatively, Partial Summary Judgment as to the No Bail Notation Class.

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UNITED STATES DISTRICT COURT CENTRAL DISTRICT OF CALIFORNIA

CIVIL MINUTES – GENERAL

Case No. Title

CV 12-09012-AB (FFMx)

Date February 7, 2018

DUNCAN ROY ET AL. V. COUNTY OF LOS ANGELES ET AL.

b. No-Money Bail Subclass
It is undisputed that “[i]t is LASD policy not to book anyone into its jails for whom bail is set at $25,000 or less unless they refused to sign the citation, demanded to appear before a magistrate, were charged with a probation violation, or were charged with a disqualifying enumerated charge (e.g. escape from custody, child abuse, domestic violence, etc.)[.]” (Dkt. No. 275 ¶ 56.) It is also undisputed that “[p]ursuant to LASD’s Policy of Bail Acceptance, where an individual with bail of less than $25,000 qualified for release without posting bail, watch commanders had discretion to book the person where they could not produce sufficient ID or were intoxicated.” (Dkt. No. 275 ¶ 57.) And finally, it is undisputed that “[u]ntil June 2014, LASD’s policy of not booking arrestees with bail of less than $25,000 did not apply to those with ICE Detainers.” (Dkt. No. 275 ¶ 58.) Thus, the LASD treated Plaintiffs in the No-Money Bail Subclass differently than other arrestees solely on the basis that Plaintiffs were subject to immigration holds. The No-Money Bail Subclass was treated differently on the face of the LASD’s policy, thereby establishing the predicate requirement “that a class that is similarly situated had been treated disparately.” Arizona Dream Act Coal. v. Brewer, 855 F.3d 957, 966 (9th Cir. 2017) (citing Christian Gospel Church, Inc. v. City & Cty. of S.F., 896 F.2d 1221, 1225 (9th Cir. 1990), superseded on other grounds by 42 U.S.C. § 2000e). “Once that is established, the central inquiry where the group at issue is not entitled to heightened scrutiny is that the differential treatment must be ‘rationally related to a legitimate state interest.’” City of Cleburne, Tex. v. Cleburne Living Ctr., 473 U.S. 432, 440 (1985). For the state action “to be legitimate, it must be ‘properly cognizable’ by the government asserting it and ‘relevant to interests’ it ‘has the authority to implement.’” Golinski v. U.S. Office of Pers. Mgmt., 824 F. Supp. 2d 968, 996 (N.D. Cal. 2012) (quoting City of Cleburne, 473 U.S. at 441). Even when the review is rational basis, it “is more searching when a classification adversely affects unpopular groups.” Diaz v. Brewer, 656 F.3d 1008, 1012 (9th Cir. 2011).
The Court holds that there is no lawful government purpose for this distinction between those arrestees subject to detainers and those not subject to detainers because as explained above, the LASD does not have authority to detain people exclusively on the basis of suspected civil immigration violations. See Santos, 725 F.3d at 465. Accordingly, the LASD was asserting and relying on “interests” it lacked “the authority to implement.” See Cleburne473 U.S. at 441. Therefore, the LASD’s practices of

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UNITED STATES DISTRICT COURT CENTRAL DISTRICT OF CALIFORNIA

CIVIL MINUTES – GENERAL

Case No. Title

CV 12-09012-AB (FFMx)

Date February 7, 2018

DUNCAN ROY ET AL. V. COUNTY OF LOS ANGELES ET AL.

booking individuals subject to immigration detainers when those individuals would otherwise be subject to LASD’s policy of not booking arrestees with a bail amount of less than $25,000 violates equal protection. As a result, the Court GRANTS summary judgment in favor of Plaintiffs as to the No-Money Bail Subclass.
3. Whether Plaintiffs’ State Law Claims Are Barred Under California Government Code Section 820.2
Defendants argue that because their challenged decisions were “basic policy decisions” as opposed to purely ministerial acts, Plaintiffs’ state law claims are barred under California Government Code section 820.2. (Dkt. 242 at 22.) Plaintiffs argue that discretionary immunity under section 820.2 should not apply to Defendants’ actions because “[e]ven if supervisors have discretionary immunity from promulgating unconstitutional policies concerning ICE detainers, employees who carried out the unlawful policies in their ministerial capacity are not immune because ‘[i]mmune discretionary acts involve planning and policy making whereas unprotected ministerial acts involve operational functions.’” (Dkt. No. 278 at 24 (quoting Doe 1 v. City of Murrieta, 102 Cal. App. 4th 899, 912 (Cal. Ct. App. 2002)).)
California Government Code section 820.2 states: “Except as otherwise provided by statute, a public employee is not liable for an injury resulting from his act or omission where the act or omission was the result of the exercise of the discretion vested in him, whether or not such discretion be abused.” Cal. Gov. Code § 820.2. California Government Code section 815.2(b) states: “Except as otherwise provided by statute, a public entity is not liable for an injury resulting from an act or omission of an employee of the public entity where the employee is immune from liability.” Cal. Gov. Code § 815.2(b). “A workable definition of immune discretionary acts draws the line between planning and operational functions of government.” Liberal v. Estrada, 622 F.3d 1064, 1084 (9th Cir. 2011) (internal quotation marks omitted). “Immunity is reserved for those basic policy decisions [which have] . . . been [expressly] committed to coordinate branches of government, and as to which judicial interference would thus be unseemly.” Id. (internal quotation marks omitted).
Plaintiffs argue that even if Defendants’ policy decisions are entitled to discretionary immunity, the staff implementing those same policy decisions are not

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UNITED STATES DISTRICT COURT CENTRAL DISTRICT OF CALIFORNIA

CIVIL MINUTES – GENERAL

Case No. Title

CV 12-09012-AB (FFMx)

Date February 7, 2018

DUNCAN ROY ET AL. V. COUNTY OF LOS ANGELES ET AL.

entitled to such immunity. (Dkt. No. 278 at 24–25.) In support of their argument Plaintiffs rely on Johnson v. State of California, 69 Cal. 2d 782, 793–97 (Cal. 1968). (Dkt. No. 278 at 24.) Johnson supports that there are some instances in which the discretionary policy decision is immune, but other ministerial acts relating to that policy are not. See 69 Cal. 2d at 796–97. For example, Johnson cites a case in which the decision as to where to place wires across a canyon are assumed to be discretionary, but the failure to warn the pilot about that placement was not immune, id. at 796 (citing United States v. Washington, 351 F.3d 913, 916 (9th Cir. 1965)), and a case in which the decision to admit a patient to the hospital was discretionary and thus immune, but there was no immunity for the treatment after admitting the patient to the hospital, id. (citing Costley v. United States, 181 F.2d 723, 724–25 (5th Cir. 1950)). This case is distinct, however, from those cases relied upon in Johnson.
Unlike the cases cited in Johnson, the purported discretionary policy here is more closely connected to the purported ministerial acts implementing the discretionary policy. The policy of holding individuals beyond their date for release based on ICE’s detainers can only be effected through the purported ministerial acts. If the Court were to accept Plaintiffs’ argument that all ministerial acts implementing discretionary policies are not immune, it would essentially eviscerate the immunity provided under section 820.2. The fact that ministerial acts are necessary to implement a discretionary policy decision does not lead to the result that section 820.2 immunity does not apply. See Buzayan v. City of Davis, 927 F. Supp. 2d 893, 906 (E.D. Cal. 2013). For example, the court in Buzayan applied immunity to a policy decision “even though the means by which to implement that decision may well be ministerial.” Id. The Court focused on the “gravamen” of the plaintiffs’ claims which were not the ministerial acts, but rather the discretionary actions. See id. at 906 (“Therefore, the decision whether to perform an optional act like releasing the audiotapes is discretionary, even though the means by which to implement that decision may well be ministerial. While Plaintiffs attempt to argue that Defendant Wong’s decision about what to redact from the recordings was accordingly ministerial in nature and not subject to immunity, the Court rejects that distinction. Despite their argument to the contrary, the gravamen of Plaintiffs’ claim lies not in what was or was not redacted but rather with respect to the Prosecutor’s alleged misconduct in releasing any audiotapes related to the arrest without prior juvenile court approval in the first place.” (internal citations omitted)).

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UNITED STATES DISTRICT COURT CENTRAL DISTRICT OF CALIFORNIA

CIVIL MINUTES – GENERAL

Case No. Title

CV 12-09012-AB (FFMx)

Date February 7, 2018

DUNCAN ROY ET AL. V. COUNTY OF LOS ANGELES ET AL.

Here, the gravamen of Plaintiffs’ claims are not the ministerial acts used to implement Defendants’ policies, but rather the LASD’s policy of honoring ICE-issued immigration detainers. The proximate cause of the alleged wrong is the discretionary policy, not the actions of the staff member who happened to have been administratively involved in the release process of a particular inmate with an immigration detainer. Thus, the Court finds that Plaintiffs’ state law claims are barred based on Government Code section 820.2.
Plaintiffs also argue that “California Courts have expressly recognized that unlawful arrest does not constitute a ‘basic policy decision,’ but rather, an operational decision to which Government Code [section] 820.2 does not apply.” (Dkt. No. 278 at 24 (citing Gillian v. City of San Marino, 147 Cal. App. 4th 1033, 1051, as modified on denial of reh’g (Cal. Ct. App. 2007)).) Plaintiffs’ reliance on Gillian, however, is misplaced because Gillian concerned the arrest of one individual and the application of immunity to one officer’s decision to arrest one individual, not to an entire department’s policies concerning the arrest of a specific group of people. 147 Cal. App. 4th at 1051. And while the Ninth Circuit in Liberal v. Estrada, 622 F.3d 1064, 1084 (9th Cir. 2011) held that “[a]s a matter of law, section 820.2 immunity does not apply to an officer’s decision to detain or arrest a suspect,” the facts in Estrada are distinct from the facts in the present case. Similar to Gillian, the Court in Estrada also analyzed whether section 820.2 immunity applies to claims of false imprisonment based on one officer’s decision to detain a suspect, not whether 820.2 immunity applies to an entire Sherriff’s Department’s policy of detaining a group of individuals. See id. at 1085. Therefore, the cases in which courts have rejected the application of section 820.2 immunity to unlawful arrests are not instructive here.
Because section 820.2 immunity bars Plaintiffs’ state law claims, the Court DENIES Plaintiffs’ Motion for Summary Adjudication Regarding Liability and GRANTS Defendants’ Motion for Summary Judgment, or Alternatively, Partial Summary Judgment as to Plaintiffs’ state law claims.
4. Roy Plaintiffs’ Declaratory and Injunctive Relief Claims
On October 18, 2017, the Roy Plaintiffs filed a Notice of Supplemental Authority describing Senate Bill No. 54, which proposed laws that prohibit local law enforcement

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UNITED STATES DISTRICT COURT CENTRAL DISTRICT OF CALIFORNIA

CIVIL MINUTES – GENERAL

Case No. Title

CV 12-09012-AB (FFMx)

Date February 7, 2018

DUNCAN ROY ET AL. V. COUNTY OF LOS ANGELES ET AL.

agencies “from using money or personnel to investigate, interrogate, detain, detect, or arrest persons for immigration enforcement purposes, as specified, and would, subject to exceptions, proscribe other activities or conduct in connection with immigration enforcement by law enforcement agencies.” (See Dkt. Nos. 331, 331-1 (Law Enforcement Officers–Access–Records and Recordation, 2017 Cal. Legis. Serv. Ch. 495 (S.B. 54) (WEST)).) The newly enacted and amended statutes described in Senate Bill No. 54, which went into effect on January 1, 2018, prohibit the Roy Defendants from engaging in the challenged conduct of detaining an individual on the basis of an immigration hold, and thus, the Roy Plaintiffs’ injunctive and declaratory relief claims are moot, as it is “clear that the allegedly wrongful behavior could not reasonably be expected to recur.” See, e.g., Cal. Gov’t Code § 7284.6(a)(1) (“California law enforcement agencies shall not: (1) Use agency or department moneys or personnel to investigate, interrogate, detain, detect, or arrest persons for immigration enforcement purposes, including any of the following: (A) Inquiring into an individual’s immigration status. (B) Detaining an individual on the basis of a hold request. . . .” (emphasis added)); Bell, 709 F.3d at 898 (“The standard for determining whether a defendant’s voluntary conduct moots a case is ‘stringent: A case might become moot if subsequent events made it absolutely clear that the allegedly wrongful behavior could not reasonably be expected to recur.’”) (quoting Friends of the Earth, Inc., 528 U.S. at 189).
Because the Roy Plaintiffs’ declaratory and injunctive relief claims are moot, the Court DENIES Plaintiffs’ Motion for Summary Adjudication Regarding Liability as to Plaintiffs’ declaratory and injunctive relief claims, and GRANTS Defendants’ Motion for Summary Judgment, or Alternatively, Partial Summary Judgment as to Plaintiffs’ declaratory and injunctive relief claims.
VII. CONCLUSION
For the foregoing reasons, the Court: (1) DENIES the Gonzalez Defendants’ Motion to Dismiss and for Partial Summary Judgment (Dkt. No. 239); (2) GRANTS in part and DENIES in part Plaintiffs’ Motion for Summary Adjudication Regarding Liability (Dkt. No. 240); (3) GRANTS in part and DENIES in part Roy Defendants’ Motion for Summary Judgment, or Alternatively, Partial Summary Judgment (Dkt. No. 242); (4) GRANTS in part and DENIES in part Gonzalez Plaintiffs’ Second Motion

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UNITED STATES DISTRICT COURT CENTRAL DISTRICT OF CALIFORNIA

CIVIL MINUTES – GENERAL

Case No. Title

CV 12-09012-AB (FFMx)

Date February 7, 2018

DUNCAN ROY ET AL. V. COUNTY OF LOS ANGELES ET AL.

for Partial Summary Judgment (Dkt. No. 247); and, (5) DENIES Gonzalez Defendants’ Motion to Strike Plaintiffs’ Expert Witness Declarations (Dkt. No. 307).
IT IS SO ORDERED.

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 Case 2:12-cv-09012-AB-FFM Document 378 Filed 04/18/18 Page 1 of 9 Page ID #:9435

1

2

3

4

5

6

7

8

9

UNITED STATES DISTRICT COURT

10

CENTRAL DISTRICT OF CALIFORNIA

11 12 DUNCAN ROY, et al.,

Case No. CV 12-09012-AB (FFMx)

13

Plaintiffs,

14 v.
15

16 COUNTY OF LOS ANGELES, et al.,

17

Defendants.

18

Consolidated with: Case No. CV 13-04416-AB (FFMx)
ORDER DENYING DEFENDANTS’ MOTION UNDER LR 7-18 TO RECONSIDER THE COURT’S FEBRUARY 7, 2018 ORDER

19 GERARDO GONZALEZ, et al.,
20 Plaintiffs,
21

22

v.

23 IMMIGRATION AND CUSTOMS 24 ENFORCEMENT, et al.,

25

Defendants.

26

27

28

1.

Case 2:12-cv-09012-AB-FFM Document 378 Filed 04/18/18 Page 2 of 9 Page ID #:9436

1 I. INTRODUCTION

2

This action involves two cases that have been consolidated: Duncan Roy, et al.

3 v. County of Los Angeles, et al., No. 12-cv-09012-AB-FFM and Gonzalez v.

4 Immigration & Customs Enforcement, et al., No. 13-cv-04416-AB-FFM (both cases

5 are now proceeding under No. 12-cv-09012-AB-FFM). Plaintiffs in the Gonzalez

6 action are Gerardo Gonzalez and Simon Chinivizyan (hereinafter, “Gonzalez

7 Plaintiffs”). (See Gonzalez, No. 13-cv-04416-BRO-FFM, Dkt. No. 44 (hereinafter,

8 “Gonzalez TAC”).) Defendants in the Gonzalez action are Immigration and Customs

9 Enforcement (“ICE”), Thomas Winkowski, Acting Director of ICE, David Marin,

10 Acting Field Office Director for the Los Angeles District of ICE, and David

11 Palmatier, the Unit Chief for the Law Enforcement Service Center of ICE

12 (collectively, “Gonzalez Defendants” or “ICE”). (See Gonzalez TAC ¶¶ 15–18.) The

13 Gonzalez Defendants bring the instant Motion to Reconsider the Court’s February 7,

14 2018 Order under Central District of California Local Rule 7-18. (Dkt. Nos. 354,

15 354-1 (“Mot. to Reconsider”).)

16

After considering the papers filed in support of and in opposition to the instant

17 Motion, as well as the oral argument of counsel, the Court DENIES the Gonzalez

18 Defendants’ Motion.

19 II. RELEVANT BACKGROUND

20

On February 7, 2018, this Court denied the Gonzalez Defendants’ Motion to

21 Dismiss and for Partial Summary Judgment (Dkt. No. 239) and granted in part and

22 denied in part the Gonzalez Plaintiffs’ Motion for Summary Adjudication Regarding

23 Liability (Dkt. No. 240). (Dkt. No. 346.)

24

On March 13, 2018, the Gonzalez Defendants filed the instant Motion under

25 Central District of California Local Rule 7-18 to Reconsider the Court’s February 7,

26 2018 Order. (Mot. to Reconsider.) On March 23, 2018, the Gonzalez Plaintiffs

27 opposed. (Dkt. No. 361 (“Opp’n”).) And on March 30, 2018, the Gonzalez

28 Defendants replied. (Dkt. No. 362 (“Reply”).)

2.

Case 2:12-cv-09012-AB-FFM Document 378 Filed 04/18/18 Page 3 of 9 Page ID #:9437

1

On April 13, 2018, the Court held a hearing on the instant Motion and took the

2 Motion under submission. (Dkt. No. 374.)

3 III. LEGAL STANDARD

4

The Gonzalez Defendants move this Court under Local Rule 7-18 to reconsider

5 portions of its February 7, 2018 Order relating to the Gonzalez Defendants’ Motion to

6 Dismiss and for Partial Summary Judgment (Dkt. No. 239) and the Gonzalez

7 Plaintiffs’ Motion for Summary Adjudication Regarding Liability (Dkt. No. 240).

8 (Mot. to Reconsider at 1–2.)

9

Under the Local Rules, a motion for reconsideration must be founded on any of

10 three bases: “(a) a material difference in fact or law from that presented to the Court

11 before such decision that in the exercise of reasonable diligence could not have been

12 known to the party moving for reconsideration at the time of such decision[;]” “(b) the

13 emergence of new material facts or a change of law occurring after the time of such

14 decision[;]” “or (c) “a manifest showing of a failure to consider material facts

15 presented to the Court before such decision.” C.D. Cal. L.R. 7-18. A motion for

16 reconsideration pursuant to Local Rule 7-18 must not “in any manner repeat any oral

17 or written argument made in support of or in opposition to the original motion.” Id.

18 “Whether to grant a motion for reconsideration under Local Rule 7-18 is a matter

19 within the court’s discretion.” Daghlian v. DeVry Univ., Inc., 582 F. Supp. 2d 1231,

20 1251 (C.D. Cal. 2007).

21 IV. DISCUSSION

22

The Gonzalez Defendants move this Court to reconsider: (1) its decision to

23 grant summary judgment in favor of the Gonzalez Plaintiffs’ Statutory Subclass on the

24 grounds that the Court failed to consider material facts presented to it before its

25 decision under Local Rule 7-18(c) (Mot. to Reconsider at 6–18); and (2) its decision

26 denying the Gonzalez Defendants’ motion to dismiss on jurisdiction as there has been

27 a “material difference in . . . law” since the time of the Court’s decision under Local

28 Rule 7-18(b) (Mot. to Reconsider at 3–6, 17 (citing C.D. Cal. L.R. 7-18(a))). The

3.

Case 2:12-cv-09012-AB-FFM Document 378 Filed 04/18/18 Page 4 of 9 Page ID #:9438

1 Court will address each in turn.

2

A. The Court Denies the Gonzalez Defendants’ Request to Reconsider

its Decision to Grant Summary Judgment in Favor of the Gonzalez

3

Plaintiffs’ Statutory Subclass

4

In the Gonzalez Plaintiffs’ Second Motion for Partial Summary Judgment,

5 Plaintiffs claimed summary judgment should be granted in favor of the Statutory

6 Subclass because ICE’s practice of issuing detainers without making any assessment

7 of flight risk violates 8 U.S.C. section 1357(a)(2), which permits ICE to make

8 warrantless arrests only if it has determined that the individual is “likely to escape

9 before a warrant can be obtained for his arrest.” (Dkt. No. 247-1 at 21.) In the

10 Gonzalez Defendants’ Motion to Dismiss and for Partial Summary Judgment, the

11 Gonzalez Defendants argued that judgment should be granted in their favor as to the

12 Statutory Subclass because they no longer issue detainers without a warrant, rendering

13 Plaintiffs’ claims moot. (Dkt. No. 239-1 at 15–16.)

14

In its February 7, 2018 Order, the Court granted the Gonzalez Plaintiffs’ Second

15 Motion for Partial Summary as to the Statutory Subclass and denied the Gonzalez

16 Defendants’ Motion to Dismiss and for Partial Summary Judgment as to the Statutory

17 Subclass. (Order at 346.) The Court held that the undisputed facts establish that it

18 was ICE’s policy to issue warrantless detainers for those in the Statutory Subclass

19 without first determining whether those individuals were “likely to escape before a

20 warrant could be obtained.” (Order at 36 (citing Dkt. No. 297-1 ¶ 154).) Thus, ICE’s

21 practices were in contravention of 8 U.S.C. section 1357(a)(2), which “requires that

22 the arresting officer reasonably believe that the alien is in the country illegally and

23 that she ‘is likely to escape before a warrant can be obtained for [her] arrest.’”

24 Mountain High Knitting, Inc. v. Reno, 51 F.3d 216, 218 (9th Cir. 1995) (emphasis in

25 original); (Order at 35–36). The Court further held that ICE has not met its heavy

26 burden of establishing that it will not resume its practice of issuing warrantless

27 detainers without making an assessment of whether an individual is a flight risk, and

28

4.

Case 2:12-cv-09012-AB-FFM Document 378 Filed 04/18/18 Page 5 of 9 Page ID #:9439

1 thus, the Statutory Subclass’ claims were not moot. (Order at 36.)

2

The Gonzalez Defendants now argue that the Court should reconsider its Order

3 because the Court failed to consider California Senate Bill No. 54 (“S.B. 54”) and the

4 TRUST Act (California Government Code section 7282.5(a)) when making its

5 decision. (Mot. to Reconsider at 2.) They further argue “that failure to consider the

6 impact of these California laws was error, because California law does not authorize

7 seizures based on detainers, so no such warrantless arrest can occur.” (Mot. to

8 Reconsider at 2.) The Gonzalez Defendants claim that, “if no such warrantless arrest

9 can occur, then ICE does not violate any provision of the INA or the Fourth

10 Amendment in issuing detainers.” (Mot. to Reconsider at 2.)

11

The Court rejects the Gonzalez Defendants’ arguments. The Gonzalez

12 Defendants state “[t]his Court did not cite, or even address, [S.B. 54 or the TRUST

13 Act] when issuing its decision. That constituted error warranting reconsideration

14 under this Court rules [sic].” (Mot. to Reconsider at 14.) First, that is patently wrong.

15 The Court cites both S.B. 54 and the TRUST Act in its Order. (See Dkt. No. 346.)

16 Second, the Gonzalez Defendants did not argue in their Motion for Summary

17 Judgment or their Reply that S.B. 54 or the TRUST Act impacted this Court’s

18 decision as to the Gonzalez Statutory Subclass. (Dkt. Nos. 239-1, 296.) In the

19 Gonzalez Defendants’ Opposition to the Gonzalez Plaintiffs’ Motion for Partial

20 Summary Judgment, Defendants reference the TRUST Act in their section that

21 Plaintiffs’ Statutory Subclass claims are moot: “[T]he California TRUST Act (AB4)

22 went into effect on January 1, 2014, and, since that time, there is no evidence that any

23 LEA has honored an ICE detainer by holding an inmate beyond his or her otherwise

24 release date.” (Dkt. No. 272 at 10–11.) But this sentence does not explain how the

25 TRUST Act impacts the Court’s decision that ICE’s policy of issuing warrantless

26 detainers without first making a determination as to flight risk violates 8 U.S.C.

27 section 1357(a)(2), nor have Defendants successfully articulated how S.B. 54 or the

28 TRUST Act impacts the Court’s decision on this point in their Motion for

5.

Case 2:12-cv-09012-AB-FFM Document 378 Filed 04/18/18 Page 6 of 9 Page ID #:9440

1 Reconsideration. Further, as evidenced by the Roy Defendants’ October 18, 2017,

2 Notice of Supplemental Authority on S.B. 54, to the extent the Gonzalez Defendants

3 thought these California laws impacted their Motion for Summary Judgment, the

4 Gonzalez Defendants had every opportunity to bring this to the Court’s attention

5 before the Court issued its Order on February 7, 2018. (See Dkt. No. 331, 331-1 (Roy

6 Defendants’ Notice of Supplemental Authority, filed on October 18, 2017, and

7 describing S.B. 54).) As a result, the Gonzalez Defendants’ argument that they have

8 demonstrated “a manifest showing of a failure to consider material facts presented to

9 the Court before such decision” is unfounded. C.D. Cal. L.R. 7-18(c).

10

Lastly, if the Gonzalez Plaintiffs are attempting to ask the Court to reconsider

11 its decision that the Gonzalez Statutory Subclass’ claims were not moot, Defendants

12 have not made this clear. Nevertheless, the Court finds that neither the TRUST Act,

13 nor S.B. 54 renders the Gonzalez Statutory Subclass’ claims moot. First, the TRUST

14 Act has been amended by S.B. 54. Second, while S.B. 54 prohibits California’s local

15 law enforcement agencies from detaining a person on the authority of an immigration

16 detainer, S.B. 54 does not prohibit California state prisons from holding a person on

17 the authority of an immigration detainer. Cal. Gov’t Code § 7284.4(a) (“‘California

18 law enforcement agency’ does not include the Department of Corrections and

19 Rehabilitation”); § 7284.6(a)(1)(B) (“California law enforcement agencies shall not . .

20 . [d]etain[] an individual on the basis of a hold request.”). Third, these California laws

21 do not have any impact on ICE’s decision to issue warrantless detainers without first

22 determining flight risk in violation of 8 U.S.C. section 1357(a)(2). And finally, these

23 California laws do not have any impact on the class members outside the state of 24 California.1

25

26

1 The Gonzalez Plaintiffs’ Statutory Subclass has members nationwide, not just in California. Plaintiffs’ Statutory Subclass consists of any person subject to an

27 immigration detainer issued out of the Central District of California. (Dkt. No. 184 at

13.) As the Gonzalez Plaintiffs highlight in their Opposition to the Motion to

28 Reconsider, “more than 70% of all detainers issued by ICE agents in the Central

6.

Case 2:12-cv-09012-AB-FFM Document 378 Filed 04/18/18 Page 7 of 9 Page ID #:9441

1

Thus, the Gonzalez Defendants’ reliance on the California TRUST Act and S.B.

2 54 to argue that the Court’s decision that ICE’s policy of issuing warrantless detainers

3 for those in the Statutory Subclass without first determining whether those individuals 4 were “likely to escape before a warrant could be obtained” violated 8 U.S.C.

5 § 1357(a)(2) is misplaced.

6

B. The Court Denies the Gonzalez Defendants’ Request to Reconsider

its Decision to Deny its Motion to Dismiss

7

8

In the Gonzalez Defendants’ Motion to Dismiss and for Partial Summary

9 Judgment, the Gonzalez Defendants argued that this Court lacks subject matter

10 jurisdiction over the Gonzalez Plaintiffs’ claims because the Immigration and

11 Nationality Act (“INA”) provides exclusive judicial review through the Petition for

12 Review process. (Dkt. No. 239-1 at 10–15.) In its February 7, 2018 Order, the Court

13 denied the Gonzalez Defendants’ Motion to Dismiss for lack of subject matter

14 jurisdiction under Federal Rule of Civil Procedure 12(b)(1). (Order a 31.)

15

In their Motion to Dismiss, the Gonzalez Defendants explained that “Congress .

16 . . has expressed its clear intent to foreclose district court adjudication of claims that

17 individuals could raise in removal proceedings through the jurisdiction channeling

18 provisions of the [INA], 8 U.S.C. § 1252(a)(5), (b)(9), and (g).” (Dkt. No. 239 at 10.)

19 The Gonzalez Defendants argued that “Plaintiffs’ challenge to the detainer process—

20 in which ICE seeks to detain individuals to determine how, if at all, to proceed with

21 their removal—‘arise[s] from an[] action taken or proceeding brought to remove

22 [them] from the United States.’” (Dkt. No. 239 at 11.)

23

In its February 7, 2018 Order, the Court rejected the Gonzalez Defendants’

24 arguments, and held that the Gonzalez Plaintiffs’ claims do not “arise from” removal

25 proceedings because the Gonzalez Plaintiffs were not subject to ongoing removal

26 District of California are issued by the Pacific Enforcement Response Center 27 (“PERC”) in Laguna Niguel, CA, which—as Defendants acknowledge at Dkt. No.
360 at 4—issues detainers to 42 states and two U.S. territories.” (Opp’n at 5 (citing 28 Dkt. No. 297-1, ¶¶ 27, 34).)

7.

Case 2:12-cv-09012-AB-FFM Document 378 Filed 04/18/18 Page 8 of 9 Page ID #:9442

1 proceedings at the time that ICE issued detainers against them, and the detainers were

2 not based upon a final order of removal signed by a judge. (Order at 30.) The Court

3 further explained that many of the class members, while subject to detainers, were or

4 are never placed in removal proceedings. (Order at 31.) The Court held that if it were

5 to determine that it did not have jurisdiction over Plaintiffs’ claims, it would be

6 tantamount to denial of judicial review. (Order at 31.) And as the Ninth Circuit has

7 explained, sections 1252(a) and 1252(b) “are not jurisdiction-stripping statutes that, by

8 their terms, foreclose all judicial review of agency actions.” (Order at 31 (quoting

9 J.E.F.M. v. Lynch, 837 F.3d 1026, 1031 (9th Cir. 2016) (emphasis in original)).)

10

The Gonzalez Defendants now argue that there has been a change in the law

11 that “mandates a different conclusion as to [their] motion to dismiss under 8 U.S.C.

12 § 1252(b)(9).” (Mot. to Reconsider at 3.) They argue that the recent Supreme Court

13 decision of Jennings v. Rodriguez, 138 S. Ct. 830 (2018) “clarified the scope of 8

14 U.S.C. § 1252(b)(9) and, without explicitly addressing detainers, suggested its

15 application to the issuance of a detainer.” (Mot. to Reconsider at 1.)

16

The Court has reviewed Jennings, and holds that Jennings does not impact the

17 Court’s February 7, 2018 decision. The Gonzalez Defendants rely upon language

18 from Part II of the Supreme Court’s holding in Jennings. (Mot. to Reconsider at 1

19 (citing 138 S. Ct. at 841).) But Part II does not support the Gonzalez Defendants’

20 position, as Part II held that section 1252(b)(9) “does not deprive [the Court] of

21 jurisdiction.” Id. at 839–40. Part II, in fact, emphasizes ideas that support the Court’s

22 decision not to interpret section 1252(b)(9) in such an expansive way that would

23 foreclose judicial review of the Gonzalez Plaintiffs’ claims. See id. at 840 (“The

24 ‘questions of law and fact’ in all those cases could be said to ‘aris[e] from’ actions

25 taken to remove the aliens in the sense that the aliens’ injuries would never have

26 occurred if they had not been placed in detention. But cramming judicial review of

27 those questions into the review of final removal orders would be absurd. Interpreting

28 ‘arising from’ in this extreme way would also make claims of prolonged detention

8.

Case 2:12-cv-09012-AB-FFM Document 378 Filed 04/18/18 Page 9 of 9 Page ID #:9443

1 effectively unreviewable.”).

2

The Gonzalez Defendants’ argument that Justice Thomas’ concurring opinion,

3 in which he only concurred in Part I and Parts III-VI, not Part II, somehow represents

4 the majority view of the Court is baffling. While it is true that Justice Thomas stated

5 section “1252(b)(9) removes jurisdiction over [Respondents’] challenge to their

6 detention,” and he would “therefore vacate the judgment below with instructions to

7 dismiss for lack of jurisdiction,” this is not the majority view of the Court, as Justice

8 Thomas acknowledged as much in his concurrence. Jennings, 138 S. Ct. at 852

9 (Thomas, J., concurring) (“But because a majority of the Court believes we have

10 jurisdiction, and I agree with the Court’s resolution of the merits, I join Part I and

11 Parts III-VI of the Court’s opinion.”). More importantly, the facts here are distinct

12 from the facts in Jennings because in Jennings, as Justice Thomas states in his

13 concurring opinion, “Respondents are a class of aliens whose removal proceedings are

14 ongoing.” Id. This different from the Gonzalez Plaintiffs, where many of the class

15 members, while subject to detainers, were or are never placed in removal proceedings.

16 Thus, the Supreme Court’s decision in Jennings does not change the result here.

17 V. CONCLUSION

18

For the foregoing reasons, the Court DENIES the Gonzalez Defendants’

19 Motion to Reconsider the Court’s February 7, 2018 Order.

20

21 IT IS SO ORDERED.

22 23 Dated: April 18, 2018 24 25

_______________________________________ HONORABLE ANDRÉ BIROTTE JR. UNITED STATES DISTRICT COURT JUDGE

26

27

28

9.

 
 Oct 28 04 12:49p

p. 1

LEROY D. BACA, SHEI~IFT
July 6, 2004

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.1llltonieren Jurk, <!Iuliforniu 91754-Zlli9

The Honorable Board of Supervisors County of Los Angeles 383 Kenneth Hahn Hall of Administration Los Angeles, California 90012
Dear Supervisors:
REQUEST FOR APPROVAL OF MEMORANDUM OF UNDERSTANDING BETWEEN THE UNITED STATES DEPARTMENT OF HOMELAND SECURITY AND THE LOS
ANGELES COUNTY BOARD OF SUPERVISORS (ALL DISTRICTS} (3 VOTES}
IT IS RECOMMENDED THAT YOUR BOARD:
Approve the Memorandum of Understanding (MOU) between the United States Department of Homeland Security and the Los Angeles County Board of Supervisors, which will allow the Los Angeles County Sheriff's Department (LASD) to perform certain immigration enforcement functions; namely, conduct interviews of foreign born inmates in the Los Angeles County Jail. The interviewers will be accessing the Deportable Alien Control System (DACS), which is a federal computer database, at no cost to the County.
PURPOSE/JU~JIFICATION OF RECOMMENDED ACTION
Immigration and Customs Enforcement (ICE), which is part of the Department of Homeland Security, has been conducting interviews of foreign born inmates in the Los Angeles County Jail for several years. The purpose of these interviews is to determine if the foreign born inmate is a convicted criminal alien or a previously deported criminal alien. Studies conducted have demonstrated that criminal aliens are a burden to the local justice system. These inmates, if they are criminal aliens and in the United States illegally, are either removed from the Country or are prosecuted on federal charges and face deportation.
7/ ~7radiHon oj cService

Oct 28 04 12:49p

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The Honorable Board of Supervisors July 6, 2004 Page 2
Currently, ICE only has the staffing to interview a small percentage of foreign born inmates. Therefore, we are proposing that LASD employees conduct the interviews. If approved, this will result in enhanced capacity to deal with criminal aliens in the Los Angeles County Jail.
The duties of LASD employees will be limited to interviewing inmates to determine probable cause for an immigration violation; completing required criminal alien processing to include fingerprinting and photographing; and preparing immigration detainers, affidavits and notice to appear applications for ICE supervisor review.
Therefore, LASD recommends the Board approve the MOU allowing LASD employees to interview and process foreign born and criminal alien inmates at the Los Angeles County Jail.
The ability to interview a higher percentage of criminal aliens will enhance the safety of the residents of Los Angeles County and reduce the burden on the local justice system.
FISCAL IMPACT/FINANCING
There is no anticipated costs if the MOU is approved by the Board. Personnel needed to conduct the interviews will come from existing staff levels. The computers and access to the DACS system were provided at no cost by ICE.
FACTS AND PROVISIONAL/LEGAL REQUIREMENTS
There is no term limit to this agreement. Designated LASD employees will continue to conduct the interviews until such time as either party decides to terminate the agreement. LASD employees will receive training from ICE for their designated immigration functions and will have access to DACS, the federal computer database, in order to conduct the interviews.
ICE and LASD understand and agree that except as otherwise noted in the MOU or allowed by federal law, each will be responsible for their own liability and bear their own cost with regard to their property and resources, or personnel expenses incurred by reason of death, injury, or incidents given rise to liability.

Oct 28 04 12:49p

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The Honorable Board of Supervisors July 6, 2004 Page 3
IMPACT ON CURRENT SERVICES OR PROJECTS
There will be no impact on current services or projects. LASD employees currently schedule the interviews being conducted by ICE agents. They also schedule and arrange for transportation of inmates being released to the custody of ICE. These functions will continue to be performed by LASD employees.
CONCLUSION
Upon approval by your Board, LASD respectfully requests that your Board provide three (3) original signed copies of the MOU and four (4) individually adopted copies of this action to Lieutenant Margarita Robles, of the Sheriffs Department's Inmate Reception Center.
Respectfully submitted,

Oct 28 04 12:49p

p.4

MEMORANDUM OF UNDERSTANDING

This Memorandum of Understanding (MOU) constitutes an agreement between the United Stales Department of Homeland Security (DHS) and the Los Angeles County (California) Board of Supervisors to create a project pursuant to which U.S. lnunigration and Customs Enforcement (ICE) authorizes nominated, trained and certified personnel of the Los Angeles County Sheriffs Department (LASD) to perform certain immigration enforcement functions as specified herein. The LASD represents Los Angeles County in the implementation and administration of this MOU. It is the intent of the parties that this project will result in enhanced capacity to deal with inunigration vinlators in Los Angeles County jail facilities.

l.

P1.J RPOSE

The purpose of this MOU is to set forth the terms and conditions for this project to authorize selected LASD personnel (participating LASD personnel) to perform certain functions of an immigration officer within Los Angeles County jail facilities, and how those participating LASD personnel will be nominated, trained, authori:oed, and supervised in performing the specified immigration enforcement functions.

Nothing herein shall otherwise limit the jurisdiction and powers nommlly possessed by participating LASD personnel as members of the LASD. Nothing herein shall otherwise limit the ability of participating LASD personnel to provide, as provided by or allowed by law, such assistance in any enforcement action unrelated to inunigration enforcement as may be lawfully requested by a law enforcement officer having jurisdiction over any such incident. crime or matter under consideration. The exercise of immigration enforcement authority, however, by pm1icipating LASD personnel shall occur only as provided in this MOU and shall be limited to activities at Los Angeles County jail facilities.

II. AUTHORITY
Section 287(g) of the hmnigration and Nationality Act, 8 U.S.C. § 1357(g), as amended by the Homeland Security Act of 2002, Public Law 107-276, authorizes the Secretary ofthe Department of Homeland Security, acting through the Under Secretary for Border and Transportation Security, to enter into written agreements with a State or any political subdivision of a State so that qualified personnel can perform ce11ain functions of an inunigration officer. This M01.J constitutes such a written agreement.

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IlL POLICY
This MOU sets forth the scope of the immigration officer functions that DHS is authorizing the patticipating LASD personnel to perform. It sets forth with specificity the duration of the authority conveyed and the specific lines of authority, including the requirement that participating LASD personnel be subject to ICE supervision while performing immigrationrelated duties pursuant to this MOU. For the purposes of this MOU, ICE officers will provide supervision for participating LASD personnel only as to immigration enforcement functions. LASD retains supervision of all other aspects of the employment of and performance of duties by participating LASD personnel.
Before participating LASD personnel will be authorized to perform immigration officer functions, they must successfully complete mandatory training in the enforcement of federal immigration laws and policies as provided by DHS instructors and pass examinations equivalent to those given to ICE officers. This MOU further sets forth requirements for regular review of this project.
As part of its commitment to the communities it serves, LASD may, at its discretion, communicate the intent, focus, and purpose of this project to organizations and groups expressing an interest in the law enforcement activities to be engaged in under this MOU. Tbis MOU also describes the complaint procedures available to members of the public regarding actions taken by participating LASD personnel pursuant to this agreement.
Only participating LASD personnel who are selected, trained, authorized and supervised as set out herein have authority pursuant to this MOU to conduct the immigration officer functions enumerated in this MOU.
The ICE and LASD points of contact for purposes of this MOU are identitied in Appendix A.

IV. DESIGNATION OF FUNCTIONS
For the purposes of this MOU, the functions that may be perfom1ed by participating LASD personnel are indicated below with their associated authorities:

AUTHORITY

FUNCTIONS

• The power to interrogate any alien or
person believed to be an alien as to his right
to be or remain in the United States. INA §
287(a)(l) and 8 C.F.R. 287.5(a)(l).

• Interrogate in order to detemrine
probable cause for an immigration
violation

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AUTHORITY

~FUNCTIONS

o The power and authority to administer oaths • Complete required criminal alien

and to take and consider evidence. INA §

processing, to include

287(b) and 8 CF.R. 287 5(a)(2).

fingerprinting, photographing, and

interviewing, for ICE supervisor

o The power to issue detainers. 8 C.F.R.

review

287.7.

• Prepare immigration detainers for

o Transportation of aliens. INA § 236.

aliens in categories established by ICE supervisors

• Prepare affidavits and take sworn statements

o Prepare a Notice To Appear (NTA)
application for signature of ICE officer for aliens in categories established by ICE supervisors

In the absence of a written agreement to the contrary, the policies and procedures to be utilized by the participating LASD personnel in exercising these authorities shall be DHS policies and procedures, including the ICE Use of Force Policy. However, when engaged in immigration enforcement activities, no participating LASD personnel will be expected or required to violate or otherwise fail to maintain LASD standards of conduct, or be required to fail to abide by restrictions or limitations as may otherwise be imposed by law, or LASD rules, standards, or policies.

The parties understand that LASD will not continue to detain an alien after that alien is eligible for release from LASD custody in accordance with applicable law and LASD policy, except for a period of up to 48 hours, excluding Saturday, Sunday and any holiday, pursuant to a DHS detainer issued in accordance with 8 C.P.R. § 287.7.

V. NOMINATIONOFPERSONNEL
The Sheriff of Los Angeles County will nominate to ICE candidates for initial training and certification under this MOU. For each candidate nominated, ICE may request any information necessary for a background check and evaluation for suitability to pruticipate in the project. All candidates must be United States citizens. All candidates will have at least two years correctional work experience for LASD. All candidates must be approved by ICE and must be able to qualify for appropriate federal security clearances. Should a candidate not be approved, a substitute candidate may be submitted, so long as such substitution happens in a timely manner and does not delay the start of training. Any future expansion in the number of
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participating LASD personnel or scheduling of additional training classes may be based on an oral agreement of the parties, bnt will be subject to all the requirements of this MOU.
VI. TRAINING OF PERSONNEL
ICE will provide appropriate training of nominated LASD personnel tailored to the designated immigration functions and types of cases typically encountered by LASD correctional personnel at a mutually designated site in Los Angeles County, utilizing ICE-designed curriculum and competency testing. Training will include presentations on this project, elements of this MOU, scope of immigration officer authority, cross-cultural issues, the ICE Use of Force Policy, civil rights law, the U.S. Department of Justice "Guidance Regarding The Use Of Race By Federal Law Enforcement Agencies" dated June 2003, public outreach and complaint procedures, liability and other relevant issues. ICE will provide all training materials. LASD is responsible for the salaries and benefits, including overtime, for any of its personnel being trained or performing duties under this MOU. LASD will cover the costs of ali eandidates' travel, housing and per diem while involved in training required for participation in this project.
All nominated personnel will receive specific training regarding their obligations under federal law and the Vienna Convention on Consular Relations to make proper notification upon the arrest or detention of a foreign national.
Approximately one year after the participating LASD personnel are trained and certified, ICE will provide certified personnel with additional updated training on relevant administrative, legal and operational issues related to the performance of immigration officer functions, unless either party terminates this MOU pursuant to Section XVII, below. Local training on relevant issues will be provided on an ongoing basis by ICE supervisors.
VII. CERTIFICATION AND AUTHORIZATION
The ICE Training Division will certify in writing to the ICE Special Agent in Charge in Los Angeles the names of those LASD personnel who successfully complete training and pass all required testing. Upon receipt of Training Division certification, the Special Agent in Charge will provide to the participating LASD personnel a signed authorization to perform specified functions of an immigration ofllcer for an initial period of one year from the date of the authorization. ICE will also provide a copy of the authorization to LASD. The activities of all personnel certified under this MOU will be evaluated by the ICE supervisory officer as addressed in Section IX, below.
Authorization of any participating LASD personnel to act pursuant to this MOU may be revoked at any time by ICE or LASD. Such revocation will require immediate notification of the other party to this MOU. The Los Angeles County Sheriff and the ICE Special Agent in Charge in Los Angeles will be responsible for notification of the appropriate personnel in their respective agencies. If any participating LASD personnel becomes the subject of a complaint of
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any sort that may result in that individual receiving employer discipline or becoming the subject of a criminal investigation, LASD shall, to the extent allowed by state law, immediately notify ICE of the complaint. The resolution of the complaint shall be promptly repmted to ICE. Complaints regarding exercise of immigration enforcement authority by any participating personnel shall be handled in accordance with Section XII, below. The termination of this MOU shall constitute revocation of all immigration enforcement authotizations conveyed hereunder.
VIII. COSTS AND EXPENDITURES
Parlidpating LASD personnel will carry out designated functions at LASD expense, including salaries and benefits, local transportation, and official issue material. ICE will provide training personnel, training materials and supervision.
IX. ICE SUPERVISION
Immigration enforcement activities of the participating LASD personnel will be supervised and directed by ICE supervisory officers in Los Angeles. Participating LASD personnel cannot perform any immigration officer functions pursuant to the LASD authorities herein except when working under the supervision of an ICE officer. Parlicipating LASD personnel shall give timely notice to the ICE supervisory officer of any alien for whom the individual believes ICE an-est or detainer is appropriate to facilitate ICE action prior to any release from LA County custody. The actions of participating LASD personnel will be reviewed by the ICE supervisory officers on an ongoing basis to ensure compliance with the requirements of the immigration laws and procedures and to assess the need for additional training or guidance for that specific individual.
For the purposes of this MOU, ICE officers will provide supervision of participating LASD personnel only as to immigration enforcement functions. LASD retains supervision of all other aspects of the employment of and perfomtance of duties by participating LASD personnel.
If a conflict arises between an order or direction provided by the ICE supervisory ofticer and LASD rules, standards, or policies, the conflict shall be promptly repotted to the Special Agent in Charge or designee and the Los Angeles County Sheriff or designee when circumstances safely allow the concem to be raised. The Special Agent in Charge and the Los Angeles County Sheriff shall attempt to resolve the conflict.
X. LIABILITY AND RESPONSIBILITY
ICE and LASD understand and agree that except as otherwise noted in this MOU or allowed by federal law, they will be responsible for their own liability and bear their own costs with regard to their property and resources, or personnel expenses incurred by reason of death, injury or incidents giving rise to liability.
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Participating LASD personnel shall not be treated as federal employees except for purposes of the Federal Tort Claims Act, 28 U.S.C.- 267 1-2680, and worker's compensation
claims, 5 U.S.C. § 8101 et seq., when perfomung a function as authorized by this MOU. 8
U.S.C. § l357(g)(7). It is the understanding of the parties to this MOU that participating LASD personnel will have the same inununities and defenses as do ICE officers from personal liability from tort suits based on actions conducted in compliance with this MOU. 8 U.S.C. § 1357(g)(8). ICE will not be responsible for any intentional misconduct on the part of any participating LASD personnel.
Participating LASD personnel who are named as defendants in litigation arising from activities carried out under this MOU may request representation by the U.S. Department of Justice. Such requests must be made in writing directed to the Attomey Geneml of the United States, and be presented to the ICE Special Agent in Charge in Los Angeles. The Special Agent iu Charge will forward the individual's request, together with a memorandum outlining the factual basis underlying the event(s) at issue in the lawsuit to the ICE office of the Principal Legal Advisor, which will forward the request, the factual memorandum, and a statement of the views of ICE with respect to whether such representation would be in the interest of the United States to the Director of the Constitutional and Specialized Torts Staff of the Civil Division of the Department of Justice.
LASD agrees to cooperate with any federal investigation related to this MOO to the full extent of its available powers. It is understood that information provided by any LASD personnel under threat of disciplinary action in an administrative investigation cannot be used against that individual in subsequent criminal proceedings, consistent with Garrity v. New Jersey, 385 U.S. 493 (1967).
The Giglio decision (405 U.S. !50 (1972)) relates to disclosure of potential impeachment information about potential witnesses or affiants in a criminal case or investigation. As the activities of participating LASD personnel under this MOU are undertaken under federal authority, the participating personnel will comply with federal standards and guidelines relating to such cases.
XL CIVIL RIGHTS STANDARDS AND PROVISION OF INTERPRETATION SERVICES
Pursuant to this MOU, participating LASD personnel will petform certain federal inunigration enforcement functions. In doing so, these participating personnel are bound by all federal civil rights statutes and regulations, including the U.S. Department of Justice "Guidance Regarding The Use Of Race By Federal Law Enforcement Agencies" dated June 2003.
Participating LASD personnel will provide an oppmtunity for subjects with limited English language proficiency to request an interpreter. Qualified foreign language inteqJreters will be provided by the LASD as needed.
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XII. COMPLAINT PROCEDURES
The complaint reporting and resolution procedure for allegations of misconduct by participating LASD personnel designated, or activities undertaken, under the authority of this MOU is included at Appendix B.
XIII. REQUIRED REVIEW OF ACTIVITIES
The ICE Assistant Secretary and the Los Angeles County Sheriff shall establish a steering conunittee that will meet periodically to review and assess the immigration enforcement activities that have been conducted pursuant to this MOU. The steering committee will meet periodically in Los Angeles County at locations to be agreed upon by the parties. These reviews are intended to assess the use made of immigration enforcement authority and to ensure compliance with the terms of this MOU. Steering conunittee participants will be supplied with specific information on case reviews, individual participants' evaluations, complaints filed, media coverage, and, to the extent practicable, statistical information on increased immigration enforcement activity in Los Angeles County. An initial review meeting will be held no later than nine months after certification of the initial class of participating LASD personnel under Section VII, above.
XIV. COMMUNITY OUTREACH
LASD will, in its discretion, engage in cOimnunity outreach with individuals and organizations expressing an interest in this MOU. ICE will participate in such outreach upon LASD request.
XV. RELATIONS WITH THE NEWS MEDIA
LASD hereby agrees to coordinate with ICE any release of information to the media regarding actions taken under this MOU. The points of contact for ICE and LASD for this purpose can be found at Appendix C.
XVL MODIFICATION OF THIS MOU
Any modifications to this MOU must be proposed in writing and approved by the signatories.
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XVII. DURATION AND TERMINATION OF THIS MOU
This MOU will be in effect from the date of signing until terminated by either party.
Either party, upon written notice to the other pruty may temlinate it at any time. Such notice shall be delivered personally or by certified or registered mail. Termination of the MOU shall take effect immediately after receipt of such notice.
Either party may, upon written or oral notice to the other party, temporarily suspend activities under this MOU when resource constraints or competing priorities necessitate. Notice of tennination or suspension by ICE shall be given to the Los Angeles County Sheriff. Notice of tennination or suspension by LASD shall be given to the ICE Special Agent in Charge in Los Angeles.
Except for the rights of participating LASD personnel as described in Section X, this
MOU does not, is not intended to, shall not be construed to, and may not be relied upon to create any rights, substantive or procedural, enforceable at law by any person in any matter, civil or criminal.
By signing this MOU, each party represents it is fnlly authorized to enter into this agreement, and accepts the tem1s, responsibilities, obligations and linlitations of this Agreement, and agrees to be bound thereto to the fullest extent allowed by law.

Asa Hutchinson Under Secretary Border and Transportation Security Department of Homeland Security
Date

Don Knabe Chairman of the Board of Supervisors Los Angeles County
Date

Michael J. Garcia Assistant Secretary U.S. Immigration and Customs Enforcement
Date

Leroy D. Baca Sheriff Los Angeles County
Date

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APPENDIX A

As called for in Section III of the MOU, the ICE and LASD points of contact for purposes of implementation of this MOU are:

For LASD:

Charles M. Jackson, Chief CotTectional Services Division 450 Bauchet St. Los Angeles, CA 90012 (213) 893-5017

For ICE:

Loraine E. Brown Special Agent In Charge 50! W. Ocean Blvd., Suite 7200 Long Beach, CA 90802 (562) 624-3800

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APPENDIXB
COMPLAINT PROCEDURE
Appendix B: Complaint Procedure
This project is a joint effort between DHS/ICE and the Los Angeles County (California) Board of Supervisors, in which selected LASD personnel are authorized to perform immigration enforcement duties in specific situations under Federal authority. As such, the training, supervision, and performance of participating LASD personnel pursuant to the MOU, as well as the protections for individuals' civil and constitutional rights, are to be monitored. Part of that monitoring will be accomplished through these complaint reporting and resolution procedures, which the parties to the MOU have agreed to follow.
The MOU sets forth the process for designation, training and certification of certain LASD personnel to perform certain immigration enforcement functions. Complaints tiled against those personnel in the course of their non-immigration duties will remain the domain of the LASD and be handled in accordance with LASD Manual of Policy and Procedures. The LASD will also handle complaints filed against personnel who may execnte innnigration authority, but who are not designated and cettified under this MOU. The number and type of the latter complaints will be monitored by the steering committee established under Section XIII of the MOU.
In order to simplify the process for the public, complaints against participating LASD personnel relating to their immigration enforcement can be reported in a number of ways. The ICE Headquarters OUice of Protessional Responsibility (OPR) and the LASD Inmate Reception Center will coordinate complaint receipt and investigation. The ICE OPR will forward complaints to the Department of Homeland Secutity' s Office of Inspector General (DHS OIG) as appropriate for review, and ensure notification as necessary to the U.S. Department of Justice Civil Rights Division (DOJ CRT).
The ICE OPR will coordinate complaints related to participating personnel with the LASD Inmate Reception Center as detailed below. Should circumstances warrant investigation of a complaint by the DHS OIG or the DOJ CRT, this will not preclude the DHS OIG, DOJ CRT or ICE OPR from conducting the investigation in coordination with LASD Internal Affairs Bureau, when appropriate.
The ICE OPR will adhere to established procedures relating to reporting and resolving allegations of employee misconduct, and the LASD Internal Affairs Bureau will follow applicable LASD policies and procedures, personnel rules, California statutes, and collective bargaining agreements.
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I. Complaint Reporting Procedures
A. Dissemination of Complaint Reporting Procedures
Complaint reporting procedures shall be disseminated as appropriate by the LASD within facilities under its jurisdiction (in English and other languages as appropriate) in order to ensure that individuals are aware of the availability of such procedures.
B. Acceptance of Complaints
Complaints will be accepted from any source (e.g., ICE, LASD, personnel operating under the authority of this MOU, and the public).
C. Reporting Mechanisms
Complaints can be reported to federal authorities as follows:
1. Telephonically to the ICE OPR at the Joint Intake Center (JIC) in Washington. D.C. at the toll-free number 1-877-246-8253, or
2. Telephonically to the Resident Agent in Charge of the ICE OPR office in Long Beach, CA at (562) 980-3170, or
3. Via mail as follows:
U.S. Department of Homeland Security U.S. Immigration and Customs Enforcement Office of Professional Responsibility 425 I St., NW Room 3260 Washington, D.C. 20536
Complaints can also be referred to and accepted by any of the following LASD entities:
1. The applicable LASD Inmate Reception Bureau Commander;
2. The supervisor of any participating LASD personnel; or
3. LASD Internal Affairs bureau Unit as follows:
Operations Lieutenant 4900 Eastern Ave. Conunerce, Ca. 90040
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D. Review of Complaints
1. All complaints (written or oral) reported to LASD directly. which involve activities connected to immigration enforcement activities, will be reported to the ICE OPR. The ICE OPR will verify participating personnel status under the MOU with the assistance of the Special Agent in Charge of the ICE Office of Investigations in Los Angeles.
2. Complaints received by any ICE entity will be reported directly to the ICE OPR as per existing ICE policies and procedures.
For both of the above, the ICE OPR, as appropriate, will make an initial determination regarding DHS investigative jurisdiction and refer the complaint to the appropriate office for action as soon as possible, given the nature of the complaint.
3. Complaints reported directly to the ICE OPR will be shared with the Inmate Reception Center when the complaint involves LASD personnel. Both offices will then coordinate appropriate investigative jurisdiction, which may include initiation of a joint investigation to resolve the issue(s).
II. Complaint Resolution Procedures
Upon receipt of any complaint, the ICE OPR will undertake a complete review of each cmnplaint in accordance with existing ICE allegation criteria and reporting requirements. As stated above, the ICE OPR will adhere to existing ICE reporting reqnirements as they relate to the DHS OIG and/or the DOJ CRT. Complaints will be resolved using the existing procedures, supplemented as follows:
A. Referral of Complaints to LASD Inmate Reception Center
The ICE OIA will refer complaints, as approp1iate, involving LASD personnel to the l.ASD Inmate Reception Center for resolution. Inmate Reception Center will inform ICE OPR of the disposition and resolution of any complaints referred by ICE OPR.
B. Interim Action Pending Complaint Resolution
Whenever any participating LASD personnel are under investigation and subject to interrogation by LASD for any reason that could lead to disciplinary action, demotion, or dismissal, the requirements of LASD Manual of Policy and Procedures shall be honored. If appropriate, an individual may be removed from participation in the activities covered under the MOU pending resolution of an inquiry.
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C. Time Parameters for Resolution of Complaints It is expected that any complaint received will be resolved within 90 days. However, this will depend upon the nature and complexity of the substance of the complaint itself. E. Notifteation of Resolution of a Complaint ICE OPR will coordinate with the Inmate Reception Center to ensure notification as appropriate to the subject(s) of a complaint regarding the resolution of the complaint.

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APPENDIXC
PUBLIC INFORMATION POINTS OF CONTACT
Pursuant to St:<.:lion XV uf the MOU. the signaturks agree tu wurdinate any release uf information to the media regarding actions taken under this MOU. The points of contact for
coordinating such activities are:
ForLASD:
Margarito Robles, Lieutenant Inmate Reception Center- Classification Unit 450 Bauchet St. Los Angeles, CA 90012 (213) 893~5340
For ICE:
Garrison Courtney, Public Affairs Officer
Office of Public Affairs and Internal Communication U.S. Department of Homeland Security
U.S. Immigration and Customs Enforcement
425 I Street, NW Room 7232 Washington, DC 20536 (202) 514-2648

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 Case 2:12-cv-09012-AB-FFM Document 574 Filed 02/05/20 Page 1 of 6 Page ID #:20543

1

2

3

4

5

6

7

8

9

10

UNITED STATES DISTRICT COURT

11

CENTRAL DISTRICT OF CALIFORNIA

WESTERN DIVISION

12

13 DUNCAN ROY; et al.,

Case No. CV 12-09012 AB (FFMx)

14

Consolidated with:

Plaintiffs,

Case No. CV 13-04416 AB (FFMx)

15 vs.

Honorable André Birotte Jr.

16 LOS ANGELES COUNTY SHERIFF’S

DEPARTMENT; et al.,

JUDGMENT

17

Defendants. 18 _________________________________

19 GERARDO GONZALEZ; et al.,
20 Plaintiffs,
21 vs.
22 IMMIGRATION AND CUSTOMS
23 ENFORCEMENT; et al.,

24

Defendants.

25

26

27

28

1.

Case 2:12-cv-09012-AB-FFM Document 574 Filed 02/05/20 Page 2 of 6 Page ID #:20544

1

In accordance with the evidence considered at trial, the Court’s Findings of

2 Fact and Conclusions of Law, issued on September 27, 2019 (Dkt. No. 548), and

3 the Court’s Order regarding the Gerardo Gonzalez (“Gonzalez”) et al. Plaintiffs’

4 Motion for Partial Summary Judgment, issued on February 7, 2018 (Dkt. No.

5 346), the Court enters the following Judgment resolving all claims:

6

Judgment is entered in favor of Plaintiff Gonzalez and the Probable Cause

7 Subclass1 on their claims that Immigration and Customs Enforcement (“ICE”)

8 violates the Fourth Amendment by (1) issuing detainers based on probable-cause

9 determinations from database searches alone (Dkt. No. 548) and (2) by issuing

10 detainers based on probable-cause determinations from evidence of foreign place

11 of birth and no match in a federal immigration database (Dkt. No. 346).

12

Judgment is entered in favor of Plaintiff Gonzalez and the Probable Cause

13 Subclass on their claim that ICE violates the Fourth Amendment by issuing

14 detainers to state and local law enforcement agencies in states that do not

15 expressly authorize civil immigration arrests in state statute. (Dkt. No. 548).

16

Judgment is entered in favor of Plaintiffs Gonzalez and Simon Chinivizyan

17 and the Statutory Subclass2 on their claim that ICE violates 8 U.S.C. section

18 1357(a)(2) by issuing detainers without either issuing an administrative warrant

19

20 1 The Probable Cause Subclass is comprised of all current and future persons who 21 are subject to an immigration detainer issued by an ICE agent located in the
Central District of California, where the detainer is not based upon a final order 22 of removal signed by an immigration judge or the individual is not subject to 23 ongoing removal proceedings and the detainer was issued solely on the basis of
electronic database checks. (Dkt. No. 548 at 3, n.1). 24 2 The Statutory Subclass is comprised of all current and future persons who are 25 subject to an immigration detainer issued by an ICE agent located in the Central
District of California, where the detainer is not based upon a final order of 26 removal signed by an immigration judge or the individual is not subject to 27 ongoing removal proceedings for whom ICE did not issue an administrative
warrant of arrest at the time it issued an immigration detainer. (Dkt. No. 548 at 3, 28 n.1).

2.

Case 2:12-cv-09012-AB-FFM Document 574 Filed 02/05/20 Page 3 of 6 Page ID #:20545

1 or determining that a person “is likely to escape before a warrant can be obtained 2 for [their] arrest.” (Dkt. No. 346).

3

WHEREAS ICE violates the Fourth Amendment by issuing detainers for

4 Probable Cause Subclass members based solely on federal database searches that

5 rely upon information from sources that lack sufficient indicia of reliability for a

6 probable-cause determination for removal (Dkt. No. 548);

7

WHEREAS ICE violates the Fourth Amendment by issuing detainers to

8 state and local law enforcement agencies in states that do not expressly authorize

9 civil immigration arrests on detainers in state statute, and violated the Fourth

10 Amendment in issuing such detainers (Dkt. No. 548);

11

WHEREAS evidence of foreign place of birth and no match in a federal

12 immigration database does not establish probable cause of alienage and

13 removability under the Fourth Amendment (Dkt. No. 346);

14

WHEREAS ICE violates 8 U.S.C. section 1357(a)(2) when it issues

15 detainers without either an administrative warrant or a determination that a

16 person “is likely to escape before a warrant can be obtained for their arrest”

17 (Dkt. No. 346);

18

IT IS HEREBY ORDERED, ADJUDGED AND DECREED THAT:

19

1. The federal databases that ICE relies on to issue its detainers are not

20

reliable sources, when viewed together or on their own, for purposes

of establishing probable cause of alienage and removability when an

21

individual does not have a removal order or is not in ongoing removal

22

proceedings.

23

a. The most reliable source of information about a person’s

24

citizenship or immigration status (where a person is not subject

to a removal order or ongoing removal proceedings) is the

25

individual because some questions regarding an individual’s

26

citizenship or immigration status can only be answered through

an interview. Other reliable sources of information about an

27

individual’s citizenship or immigration status are the A-File, if

28

3.

Case 2:12-cv-09012-AB-FFM Document 574 Filed 02/05/20 Page 4 of 6 Page ID #:20546

1

the individual has an A-File;3 and physical copies of documents

demonstrating current citizenship and/or immigration status.

2

(Dkt. No. 548 at 23–24).

3 b. Prior to issuing a detainer to any individual who has not been

4

ordered removed, is not in removal proceedings, and has not

5

been interviewed, and in addition to other investigatory steps an

ICE agent takes as a matter of policy and/or their own

6

discretion, ICE shall confirm the individual’s identity through a

7

biometric match.

8

2. Immigration detainers previously issued against members of the

9

Probable Cause Subclass are declared null and void, and ICE shall

immediately rescind all such detainers.

10

11

3. ICE, including the ICE Los Angeles Field Office and the Pacific

Enforcement Response Center (the “PERC”), is permanently enjoined

12

from issuing detainers seeking the detention of Probable Cause

13

Subclass members to law enforcement agencies in states that lack

state law permitting state and local law enforcement agencies to make

14

civil immigration arrests based on civil immigration detainers only.

15

4. ICE, including the ICE Los Angeles Field Office and the PERC, is

16

permanently enjoined from issuing detainers to Probable Cause

17

Subclass members based solely on database searches that rely upon

information from sources that lack sufficient indicia of reliability for a

18

probable cause determination for removal.

19

5. Should ICE move the PERC, or any successor(s) performing the

20

detainer functions of the PERC, to a location outside of the Central

21

District of California, ICE shall:

22

23

24 3 An A-File is a physical file that contains hard copy documents on a person’s 25 immigration status. A-Files are capable of painting a more robust picture of a
person’s immigration status than database information. They are readily 26 obtainable by ICE to review prior to issuing a detainer, and may be delivered by 27 expedited mail without serious difficulty. (Dkt. No. 548 at 23–24). Short of an
interview, the A-File is the next best source of information about a person’s 28 citizenship and immigration status.

4.

Case 2:12-cv-09012-AB-FFM Document 574 Filed 02/05/20 Page 5 of 6 Page ID #:20547

1

a. Notify the Court and the Plaintiffs in writing 30 days before any

move occurs; and

2

3

b. Continue to be bound by this injunction with respect to the

detainer functions of the PERC.

4

5

IT IS FURTHER ORDERED THAT, to monitor and ensure

compliance with this injunction,

6

7

6. Within 30 days of the entry of this Judgment, Defendants shall

provide notice to local, state, and federal law enforcement agencies

8

that could have been issued a detainer to be served on a member of

9

the Probable Cause Subclass, informing these agencies of this

Judgment, and advising them of the contents of the Court’s ruling and

10

its impact on detainers issued by ICE. This notice shall be posted

11

prominently on ICE’s website and circulated to all state and local law

enforcement agencies to whom ICE issues detainers. Defendants shall

12

specifically inform these agencies that a detainer does not provide the

13

legal authority for a state or local law enforcement officer to make a

civil immigration arrest. (Dkt. No. 548 at 30, ¶ 20).

14

15

7. Within 45 days of the entry of this Judgment, Defendants shall

provide a report to the Court explaining how they complied with

16

paragraph 6, including copies of any and all memoranda, directives,

17

written guidance, notices, forms, and other communications made to

effectuate this Judgment. Defendants’ report should also include:

18

19

a. Any additional plans they have for notifying local, state, and

federal law enforcement agencies of this Judgment; and

20

21

b. The number of detainers Defendants rescinded in compliance

with this Judgment.

22

23

8. Within 90 days of the entry of this Judgment, ICE shall adopt and

implement any policies, practices, trainings, and systems changes

24

necessary to ensure consistent and effective compliance with the

25

Court’s Findings of Fact and Conclusions of Law (Dkt. No. 548) and

this Judgment. ICE shall provide Plaintiffs and the Court with copies

26

of any such policies, practices, trainings, or systems changes made.

27

28

5.

Case 2:12-cv-09012-AB-FFM Document 574 Filed 02/05/20 Page 6 of 6 Page ID #:20548

1

This Court retains jurisdiction to entertain such further proceedings and to

enter such further orders as may be necessary or appropriate to implement and

2 enforce the provisions of this Order and Judgment.

3 IT IS SO ORDERED.
4

5

6 Dated: February 5, 2020
7
8

_______________________________________ ANDRÉ BIROTTE JR. UNITED STATES DISTRICT JUDGE

9

10

11

12

13

14

15

16

17

18

19

20

21

22

23

24

25

26

27

28

6.

 
 Case 2:12-cv-09012-AB-FFM Document 396 Filed 07/11/18 Page 1 of 10 Page ID #:9766

1

2

3

4

5

6

7

8

9

UNITED STATES DISTRICT COURT

10

CENTRAL DISTRICT OF CALIFORNIA

11 12 DUNCAN ROY, et al.,

Case No. CV 12-09012-AB (FFMx)

13

Plaintiffs,

14 v.
15

16 COUNTY OF LOS ANGELES, et al.,

17

Defendants.

18

Consolidated with: Case No. CV 13-04416-AB (FFMx)
ORDER GRANTING PLAINTIFFS’ MOTION TO MODIFY CLASS DEFINITION

19 GERARDO GONZALEZ, et al.,

20

21

Plaintiffs,

22

v.

23 IMMIGRATION AND CUSTOMS 24 ENFORCEMENT, et al.,

25

Defendants.

26

27

28

1.

Case 2:12-cv-09012-AB-FFM Document 396 Filed 07/11/18 Page 2 of 10 Page ID #:9767

1 I. INTRODUCTION

2

This action involves two cases that have been consolidated: Duncan Roy, et al.

3 v. County of Los Angeles, et al., No. 12-cv-09012-AB-FFM and Gonzalez v.

4 Immigration & Customs Enforcement, et al., No. 13-cv-04416-AB-FFM (both cases

5 are now proceeding under No. 12-cv-09012-AB-FFM). The remaining Plaintiffs in

6 the Roy action at the time the Court considered the recent summary judgment motions

7 were Clemente De La Cerda and Alain Martinez-Perez (collectively, “Roy 8 Plaintiffs”).1 Defendants in the Roy action are the County of Los Angeles and Sheriff

9 Leroy D. Baca (collectively, “Roy Defendants” or the “County”). The Roy Plaintiffs

10 bring the instant Motion to Modify the Class Definition in light of the Court’s

11 February 7, 2018 summary judgment Order. (Dkt. No. 348 (“Mot.”).)

12

After considering the papers filed in support of and in opposition to the instant

13 Motion, the Court GRANTS the Roy Plaintiffs’ Motion.

14 II. RELEVANT BACKGROUND

15

On September 9, 2016, the Court granted, in part, the Roy Plaintiffs’ Motion for

16 Class Certification. (See Dkt. No. 184.) The Court certified seven classes for the Roy

17 action: (1) the False Imprisonment Equitable Relief Class; (2) the Gerstein Equitable 18 Relief Class; (3) the False Imprisonment Damages Class; (4) the Post-48 Hour

19 Gerstein Subclass; (5) the Investigative Detainer Class; (6) the No Bail Notation 20 Class; and (7) the No-Money Bail Subclass. (Dkt. No. 184.) Relevant to this action,

21 the Post-48 Hour Gerstein Subclass includes “[a]ll LASD inmates who were detained 22 for more than forty-eight hours beyond the time they were due for release from

23 criminal custody, based solely on immigration detainers, excluding inmates who had a

24 final order of removal or were subject to ongoing removal proceedings as indicated on

25 the face of the immigration detainer” and covers those inmates who were detained

26

27 1 The only remaining Plaintiff in the Roy action after the Court issued its Order on the
28 summary judgment motions (Dkt. No. 346) is Alain Martinez-Perez.

2.

Case 2:12-cv-09012-AB-FFM Document 396 Filed 07/11/18 Page 3 of 10 Page ID #:9768

1 from October 19, 2010 to the present (federal claims), and from November 7, 2011 to

2 June 5, 2014 (California state law claims). (Dkt. No. 184.)

3

The Court did not certify the Gerstein Damages Class which included: “[a]ll

4 LASD inmates who were detained beyond the time they are due for release from

5 criminal custody, solely on the basis of immigration detainers, excluding inmates who

6 had a final order of removal or were subject to ongoing removal proceedings as

7 indicated on the face of the detainer.” (Dkt. No. 184.) This class sought damages

8 pursuant to federal law from October 19, 2010, to the present, and under California

9 state law from November 7, 2011, to June 5, 2014. (Dkt. No. 184.) The Court did not

10 certify the broader Gerstein Damages Class because it was concerned that this class

11 would not be susceptible to a class-wide liability determination. (Dkt. No. 184 at 23–

12 24.) The issue with the broader Gerstein Damages Class was that unlike the Post-48

13 Hour Damages Subclass, “whether each class member who was provided a probable

14 cause hearing within forty-eight hours was provided a hearing within a reasonable

15 amount of time would be an individualized inquiry dependent on the facts of the

16 case.” (Dkt. No. 184 at 24.) “For those who were not given a probable cause hearing

17 for more than forty-eight hours, however, it may be found as a matter of law that all

18 such delays were unreasonable.” (Dkt. No. 184 at 24.) The Court ultimately

19 concluded “that the Roy Plaintiffs have failed to establish commonality for the

20 Gerstein [C]lass, though they have met the commonality requirement for the Post-

21 48[]Hours Gerstein [S]ubclass.” (Dkt. No. 184 at 24.)

22

On February 7, 2018, this Court granted in part and denied in part the Roy

23 Defendants’ Motion for Summary Judgment, or Alternatively, Partial Summary

24 Judgment (Dkt. No. 242) and granted in part and denied in part the Roy Plaintiffs’

25 Motion for Summary Adjudication Regarding Liability (Dkt. No. 240). (Dkt. No.

26 346.) The Court granted summary judgment as to the Post-48 Hour Gerstein

27 Subclass. (Dkt. No. 346 at 38–41.) In brief, the Court granted summary judgment in

28 favor of the Roy Plaintiffs’ Post-48 Hour Gerstein Subclass because the undisputed

3.

Case 2:12-cv-09012-AB-FFM Document 396 Filed 07/11/18 Page 4 of 10 Page ID #:9769

1 evidence established that the Los Angeles County Sheriff’s Department (“LASD”)

2 held inmates beyond their release dates on the basis of civil immigration detainers.

3 (Dkt. No. 346 at 41.) The Court further held that holding the inmates beyond their

4 release dates on the basis of civil immigration detainers constituted a new arrest under

5 the Fourth Amendment. (Dkt. No. 346 at 41.) Ultimately, the Court concluded that

6 because the LASD officers have no authority to arrest individuals for civil

7 immigration offenses, detaining individuals beyond their release date violated the

8 individuals’ Fourth Amendment rights. (Dkt. No. 346 at 41.)

9

On March 2, 2018, the Roy Plaintiffs filed the instant Motion to Modify the

10 Class Definition. (Mot.) On March 21, 2018, the County opposed. (Dkt. No. 359.)

11 And on April 9, 2018, the Roy Plaintiffs replied. (Dkt. No. 370.)

12 III. LEGAL STANDARD

13

Federal Rule of Civil Procedure 23(c)(1)(C) permits a court to alter or amend an

14 order granting class certification at any point prior to the entry of final judgment. Fed.

15 R. Civ. P. 23(c)(1)(C). Therefore, the district court retains flexibility and is free to

16 modify a class definition in light of developments during the course of litigation. See,

17 e.g., Gen. Tel. Co. of Sw. v. Falcon, 457 U.S. 147, 160 (1982) (“Even after a

18 certification order is entered, the judge remains free to modify it in the light of

19 subsequent developments in the litigation.”); United Steel, Paper & Forestry, Rubber,

20 Mfg. Energy, Allied Indus. & Serv. Workers Int’l Union, AFL-CIO, CLC v.

21 ConocoPhillips Co., 593 F.3d 802, 809 (9th Cir. 2010). “In considering the

22 appropriateness of [modification or] decertification, the standard of review is the same

23 as a motion for class certification: whether the Rule 23 requirements are met.” Marlo

24 v. United Parcel Serv., Inc., 251 F.R.D. 476, 479 (C.D. Cal. 2008), aff’d, 639 F.3d

25 942 (9th Cir. 2011).

26 IV. DISCUSSION

27

The Roy Plaintiffs argue that because the Court’s decision to grant summary

28 judgment in favor of the Post-48 Hour Gerstein Subclass was based upon the legal

4.

Case 2:12-cv-09012-AB-FFM Document 396 Filed 07/11/18 Page 5 of 10 Page ID #:9770

1 conclusion that the County violated the individuals’ Fourth Amendment rights when

2 the LASD held them beyond their release date based upon a civil immigration

3 detainer, the liability determination extends to all persons held after they were due for

4 release on civil immigration detainers, regardless of the duration of the additional

5 detention. (Mot. at 1–2.) Thus, because this legal analysis would apply to not only

6 those in the Post-48 Hour Gerstein Subclass, but would also apply to those individuals

7 held for less than 48 hours beyond their release date, the class definition for the Post-

8 48 Hour Gerstein Subclass should be amended. (Mot. at 2.) The Roy Plaintiffs

9 request that the Court amend the Post-48 Hour Gerstein Subclass to include persons

10 held less than 48 hours. (Mot. at 2.)

11

The Roy Plaintiffs note that this amended definition “would result in a class

12 identical in composition to that found by the Court in its summary judgment ruling

13 and likewise identical to the Gerstein Damages Class sought (but denied) in Plaintiffs’

14 Class Certification Motion.” (Mot. at 2.) The Roy Plaintiffs also argue that the

15 modified class would encompass all members of the “Investigative Detainer” class.

16 (Mot. at 9.)

17 18

A.

Whether Subclass

the

Court

Should

Modify

the

Post-48

Hour

Gerstein

19

By modifying the Post-48 Hour Gerstein Subclass to include all persons held

20 after they were due for release on immigration detainers, including those held less

21 than 48 hours, the Court would essentially be certifying the Gerstein Damages Class.

22 The Court did not certify the broader Gerstein Damages Class because it was

23 concerned that this class would not be susceptible to a class-wide liability

24 determination. (Dkt. No. 184 at 23–24.) The issue with the broader Gerstein Class

25 was that unlike the Post-48 Hour Damages Subclass, “whether each class member

26 who was provided a probable cause hearing within forty-eight hours was provided a

27 hearing within a reasonable amount of time would be an individualized inquiry

28 dependent on the facts of the case.” (Dkt. No. 184 at 24.)

5.

Case 2:12-cv-09012-AB-FFM Document 396 Filed 07/11/18 Page 6 of 10 Page ID #:9771

1

Now, however, the Court’s Order granting summary judgment in favor of the

2 Roy Plaintiffs’ Post-48 Hour Gerstein Subclass renders the distinction between those

3 individuals who were held more than 48 hours after they were due for release based

4 on an immigration detainer and those who were held less than 48 hours moot. The

5 Court granted summary judgment in favor of the Roy Plaintiffs’ Post-48 Hour

6 Gerstein Subclass on the basis that holding an individual beyond his or her release

7 date based on a civil immigration detainer is a new arrest, the LASD does not have

8 authority to arrest individuals based on civil immigration detainers, and thus, the

9 County violated the Plaintiffs’ Fourth Amendment rights when it held the individuals

10 beyond their release dates based on civil immigration detainers. (Dkt. No. 346 at 38–

11 41.) The practical implication is that this same finding of liability would not only

12 apply to those held beyond 48 hours, but all individuals who were held beyond their

13 release dates based on a civil immigration detainer for any amount of time. Thus,

14 there is no longer a commonality concern with this broader class, as the basis for

15 liability would apply to the entire class.

16

Notably, the County does not contest that the broader class satisfies Rule 23.

17 (See Opp’n.) In the Court’s Order on class certification, the Court held that this

18 broader Gerstein Damages class satisfied the numerosity requirement (the broader

19 class consists of approximately 13,030 potential class members) (see Dkt. No. 184 at

20 19), the Court now finds that this broader class satisfies the commonality and

21 typicality requirements as common questions apply to the entire class, and the Court

22 continues to hold that the Roy Plaintiffs are adequate representatives (see Dkt. No.

23 184 at 29–30). Thus, the broader modified class satisfies Rule 23 requirements. See

24 Fed. R. Civ. P. 23(a).

25

Much of the County’s Opposition is devoted to the argument that expanding the

26 Post-48 Hour Subclass to include persons held less than 48 hours directly conflicts

27 with the Fifth Circuit’s decision in City of El Cenizo, Texas v. Texas, 885 F.3d 332

28

6.

Case 2:12-cv-09012-AB-FFM Document 396 Filed 07/11/18 Page 7 of 10 Page ID #:9772

1 (5th Cir. 2018).2 These arguments are nearly identical to those that the County put

2 forth in its Motion for Reconsideration. (Compare Dkt. No. 359 at 5–11 with Dkt. 3 No. 373 at 3–9.) As the Court rejected the County’s arguments that the City of El 4 Cenizo controls here in its Order on the Motion for Reconsideration, the Court need 5 not repeat itself here.

6

The County also argues that the expansion of the Post-48 Hour Gerstein

7 Subclass cannot be reconciled with the Roy Plaintiffs’ own theories of relief and

8 Ninth Circuit law. (Opp’n at 2–5.) The fact that the Court’s legal analysis for

9 determining liability, however, differed from Plaintiffs’ analysis, does not foreclose

10 the Court’s ability to modify the class to conform to the liability determination. While

11 the County argues that permitting the Court to modify the class to conform to the

12 liability determination would go against Ninth Circuit law, the authority that the

13 County cites highlights that the Ninth Circuit has not determined that Courts are

14 forbidden from doing so. In their Opposition, the County quotes Grodzitsky v. Am. 15 Honda Motor Co. Inc., 2014 WL 718431, at *4 (C.D. Cal. Feb. 19, 2014) (internal 16 quotation marks omitted), stating, “[t]he Ninth Circuit has not addressed the scope of

17 the Court’s discretion to modify a class definition at the certification stage. District

18 Courts are split over whether to hold a plaintiff to the definition of a class set forth in

19 the complaint.” (Opp’n at 4.) The County then misquotes the case. The County

20 continues the text as if it is all part of one larger quotation, stating, “[t]he Court is

21 bound to class definitions provided in the complaint and, absent an amended

22 complaint, will not consider certification beyond it.” (Opp’n at 5.) However, this

23 2 On May 9, 2018, the County filed a Notice of Substitution of City of El Cenizo

24 Opinion by the Fifth Circuit Court of Appeals. (Dkt. No. 386.) On May 8, 2018, the

25

Fifth Circuit withdrew its decision, found at 885 F.3d 332, and substituted in a new opinion, found at ---F.3d---, 2018 WL 2121427 (5th Cir. May 8, 2018). The Fifth

26

Circuit withdrew its prior opinion of March 13, 2018, for purposes of “eliminate[ing] reference to United States v. Gonzalez–Longoria, 831 F.3d 670 (5th Cir. 2016) (en

27 banc), given that decision’s abrogation by the Supreme Court in Sessions v. Dimaya, -

28

--U.S.---, 138 S. Ct. 1204 . . . (2018).” City of El Cenizo, 2018 WL 2121427, at *1. The amended opinion does not change the Court’s analysis here.

7.

Case 2:12-cv-09012-AB-FFM Document 396 Filed 07/11/18 Page 8 of 10 Page ID #:9773

1 quote is not the Court’s holding in Grodzitsky, this language is from a parenthetical

2 used to describe another case, which the Grodzitsky court used to demonstrate that

3 “[d]istrict courts are split over whether to hold a plaintiff to the definition of a class as

4 set forth in the complaint.” 2014 WL 718431, at *4.

5

Moreover, this is not a situation where the Roy Plaintiffs are attempting to

6 modify the class to create a new class that is different from those classes Plaintiffs

7 sought to certify. The modified class is the same as the Gerstein Damages Class,

8 which the Court previously held could not be certified because of commonality issues.

9 (Dkt. No. 184 at 23–24.) Because those commonality issues are no longer present,

10 and because the Supreme Court has held that “[e]ven after a certification order is

11 entered, the judge remains free to modify it in light of the subsequent developments in

12 the litigation,” Gen. Te. Co. of Sw., 457 U.S. at 160, the Court finds it appropriate to

13 modify the Post-48 Hour Gerstein Subclass to conform to the definition of the original

14 Gerstein Damages Class.

15

B. Whether the Court’s Modified Subclass Encompasses the

16

“Investigative Detainer” Class

17

Because the Court finds it appropriate to modify the class definition to conform

18 to the liability determination, the Court next considers whether this modified class

19 encompasses the Investigative Detainer Class.

20

In their Motion for Summary Adjudication Regarding Liability, the Roy

21 Plaintiffs argued that they were entitled to summary adjudication as to the

22 Investigative Detainer Class. (Dkt. No. 240 at 13–14.) According to the Roy

23 Plaintiffs, “the LASD honored . . . immigration detainers that requested detention on

24 the sole grounds that an investigation had been initiated, facially communicating that

25 ICE had not yet acquired evidence to support probable cause of removability.” (Dkt.

26 No. 240 at 13 (emphasis in original).) Defendants argued that while the language on

27 ICE’s detainer forms have been modified several times during the period relevant to

28 the case, “ICE agents have always been required to establish . . . the existence of

8.

Case 2:12-cv-09012-AB-FFM Document 396 Filed 07/11/18 Page 9 of 10 Page ID #:9774

1 probable cause of a subject’s removability from the United States, prior the issuance

2 of a detainer.” (Dkt. No. 273 at 5 (emphasis omitted).)

3

The Court held that it was undisputed that “[t]he 8/2010 version of the I-247

4 Form includes four checkboxes indicating the basis for issuing an immigration

5 detainer; the first box states ‘Investigation has been initiated to determine whether this

6 person is subject to removal from the United States.’” (Dkt. No. 275 ¶ 2.) The Court

7 further held that it was also undisputed that “[t]he 6/2011 version of the I-247 Form

8 includes four checkboxes indicating the basis for issuing an immigration detainer; the

9 first box states ‘Initiated an investigation to determine whether this person is subject

10 to removal from the United States.’” (Dkt. No. 275 ¶ 3.)

11

Plaintiffs argued that the “investigative detainers” expressly disclaim the

12 existence of probable cause on their face.” (Dkt. No. 279 ¶ 154.) However,

13 Defendants argued that despite whatever form was used and what the options on the

14 form were, ICE was always required to issue detainers based upon probable cause,

15 meaning that the boxes on the form were not always indicative of the probable cause

16 basis for the detainer. (See Dkt. No. 279 ¶ 83.) The Court found that a material

17 factual dispute existed as to whether the “investigative detainers” were actually based

18 on probable cause, and the box checked indicated something else, or whether they

19 were not based on probable cause and the “investigative detainers” meant that an

20 investigation into probable cause was occurring, rather than some sort of other

21 investigation, and held that summary judgment as to this issue was not proper. (Dkt.

22 No. 346 at 39–40.) Accordingly, the Court denied the Roy Plaintiffs’ Motion for

23 Summary Adjudication Regarding Liability as to the Investigative Detainer Class.

24 (Dkt. No. 346 at 39–40.)

25

The Roy Plaintiffs now contend that because the legal reasoning supporting

26 liability for the Post-48 Hour Gerstein Subclass is the same legal reasoning that

27 supports liability for the modified class—that LASD’s holding of any person beyond

28 the time they are due for release based on a civil immigration detainer constitutes a

9.

Case 2:12-cv-09012-AB-FFM Document 396 Filed 07/11/18 Page 10 of 10 Page ID #:9775

1 new arrest in violation of the inmates’ Fourth Amendment rights—the issue of

2 whether the “investigative detainers” were based on probable cause is moot because

3 even if they were, the LASD does not have authority to arrest individuals based upon

4 a civil immigration detainer. (See Mot. at 9.)

5

The Court agrees. Because the legal reasoning supporting liability that applies

6 to the modified class would also apply to the investigative detainer class, the Court

7 finds that there is no longer a need for trial on the Investigative Detainer Class

8 because such class is usurped by the modified class.

9 V. CONCLUSION

10

For the foregoing reasons, the Court GRANTS the Roy Plaintiffs’ Motion to

11 Modify Class Definition.

12

The Post-48 Hour Gerstein Subclass is hereby amended to conform to the

13 original Gerstein Damages Class as follows: “All LASD inmates who were detained

14 beyond the time they are due for release from criminal custody, solely on the basis of

15 immigration detainers, excluding inmates who had a final order of removal or were

16 subject to ongoing removal proceedings as indicated on the face of the detainer.”

17

18 IT IS SO ORDERED.

19 20 Dated: July 11, 2018
21
22

_______________________________________ HONORABLE ANDRÉ BIROTTE JR. UNITED STATES DISTRICT COURT JUDGE

23

24

25

26

27

28

10.

 
 Case 2:12-cv-09012-AB-FFM Document 548 Filed 09/27/19 Page 1 of 37 Page ID #:20185

1

2

3

4

5

6

7

8

UNITED STATES DISTRICT COURT

9

CENTRAL DISTRICT OF CALIFORNIA

10

11 GERARDO GONZALEZ, et al.,

12

Plaintiffs,

13 v.

14

IMMIGRATION AND CUSTOMS ENFORCEMENT, an entity, et al.

15 Defendants.

16

Case No. 2:12-cv-09012-AB (FFMx)
FINDINGS OF FACT AND CONCLUSIONS OF LAW TRIAL DATE: MAY 7, 2019

17

I. INTRODUCTION

18

In an effort to regulate the flow of immigration, U.S. Immigration and Customs

19

Enforcement (“ICE”) collaborates with federal, state, and local law enforcement

20 agencies (“LEAs”) to issue immigration detainers. These detainers allow LEAs to

21

keep an individual in custody up to 48 hours after their scheduled release date. The

22

purpose of the immigration detainer is to give ICE time to become aware of the

23 individual’s immigration status, and, if necessary, take the detainee into custody for

24

removal.

25

ICE has reworked its detainer form multiple times but currently uses the I-247A

26 form for removal proceedings. The form provides four criteria for removability: (1) a

27

final order of removal against the alien; (2) the pendency of ongoing removal

28

1.

Case 2:12-cv-09012-AB-FFM Document 548 Filed 09/27/19 Page 2 of 37 Page ID #:20186

1 proceedings against the alien; (3) biometric confirmation of the alien’s identity and a

2 records check of federal databases that affirmatively indicate, by themselves or in

3 addition to other reliable information, that the alien either lacks immigration status or

4 notwithstanding such status is removable under U.S. immigration law; and

5 (4) statements made by the alien to an immigration officer and/or other reliable

6 evidence that affirmatively indicate the alien either lacks immigration status or

7 notwithstanding such status is removable under U.S. immigration law.

8

This lawsuit surrounds the third category of the I-247A, which authorizes ICE

9 to remove an individual based solely on biometric confirmation of the individual’s

10 identity and a review of multiple federal databases which may provide information on

11 a person’s immigration status. The issues before the Court are: (1) whether the

12 exclusive use of biometric confirmation and database checks violates the Fourth

13 Amendment; and (2) whether the issuance of detainers to state and local law

14 enforcement agencies that lack authority for civil immigration arrests violates the

15 Fourth Amendment.

16

This matter was tried before the Court, sitting without a jury, from May 7, 2019

17 to May 16, 2019. Jennifer Pasquarella and Jessica Karp-Bansal of the ACLU

18 appeared on behalf of Plaintiff Gerardo Gonzalez and all those similarly situated

19 (“Plaintiff”). J. Max Weintraub and John J. W. Inkeles of the United States

20 Department of Justice appeared for Defendant Immigration and Customs Enforcement

21 (“Defendant” or “ICE”).

22

The Court has heard the admissible evidence presented by the parties and the

23 arguments of counsel. It has considered the credibility of the witnesses and all papers

24 and exhibits presented by the parties for purposes of this trial, including admissions in

25 the Final Pretrial Conference Order. The Court makes the following findings of fact

26 and conclusions of law pursuant to Federal Rule of Civil Procedure 52.

27 / / /

28 / / /

2.

Case 2:12-cv-09012-AB-FFM Document 548 Filed 09/27/19 Page 3 of 37 Page ID #:20187

1

II. FINDINGS OF FACT

2 A. Background

3 1.

Plaintiff Gerardo Gonzalez is a natural born United States citizen. He was

4 born in Pacoima, in the City of Los Angeles, California. Dkt. No. 484, Stipulated

5 Fact (“SF”) 1. Gonzalez has never been removable from the United States.

6

2.

On December 31, 2012, ICE issued an immigration detainer to the Los

7

Angeles County Sheriff’s Department requesting that the Sheriff maintain custody

8

of Plaintiff Gonzalez after he would otherwise have been released from custody.

9

Dkt. No 484, SF 2.

10

3.

Gonzalez’s immigration detainer was based on information reviewed in

11

electronic databases. See Dkt. No. 484 SF, 3-4.

4.

No ICE agent ever interviewed Plaintiff Gonzalez prior to issuing a

12

detainer. Dkt. No. 484, SF 8.

13

5.

Gonzalez represents a class of individuals comprised of all current and

14

future persons who are subject to an immigration detainer issued by an ICE agent

15

located in the Central District of California, where the detainer is not based upon a

16

final order of removal signed by an immigration judge or the individual is not

17

subject to ongoing removal proceedings and the detainer was issued solely on the

18

basis of electronic database checks. Dkt. No. 484, at 1-2.1

19

20 1 There are three classes of individuals represented by Gonzalez in this action:

(1) The Judicial Determination Class is comprised of all current and future persons

21

who are subject to an immigration detainer issued by an ICE agent located in

22

the Central District of California, where the detainer is not based upon a final order of removal signed by an immigration judge or the individual is not subject

23

to ongoing removal proceedings. This Class is limited to those detained for more than 48 hours.

24

(2) The Probable Cause Subclass is comprised of all current and future persons

25

who are subject to an immigration detainer issued by an ICE agent located in the Central District of California, where the detainer is not based upon a final

26

order of removal signed by an immigration judge or the individual is not subject to ongoing removal proceedings and the detainer was issued solely on the basis

27

of electronic database checks.

(3) The Statutory Subclass is comprised of all current and future persons who are

28

subject to an immigration detainer issued by an ICE agent located in the Central

3.

Case 2:12-cv-09012-AB-FFM Document 548 Filed 09/27/19 Page 4 of 37 Page ID #:20188

1 6.

Defendant ICE is a component of the Department of Homeland Security

2 (“DHS”). Id. at 5.

3 B. ICE’s Use of Immigration Detainers

4

7. An immigration detainer is a request by ICE to a federal, state, or local LEA

5

that the agency hold an individual in custody for up to 48 hours after the person

6

would otherwise be released so that ICE can take the person into custody. Dkt.

7

No. 484, Admitted Fact (“AF”) 3, SF 16, Trial Transcript (“Tr.”) 1480:18-21

8

(Robbins).

9

8. Detainers are check-box forms developed by DHS and issued by ICE agents.

See, e.g., Trial Ex. 96. Agents rely on their research, in the field professional 10
expertise, and, if necessary, legal counsel when issuing detainers. Trial Tr. 1441:1-

11

25 (Robbins).

12

9. No judicial process is undertaken before or after a detainer is issued;

13

however, detainers are issued along with an ICE arrest warrant.2 Dkt. No. 484,

14

Admitted Fact (“AF”) 5; Trial Tr. 1038:13-16 (Garibay).

15

10. The detainer form indicates that a detainer is not valid unless served on the

16 individual subject to that detainer. Trial Ex. 96; Trial Tr. 1422:7-1423:4 (Robbins).

17 11. ICE officers at ICE’s Pacific Enforcement Response Center (“PERC”) in

18 Laguna Niguel, California issue detainers 24 hours a day to persons in custody in

19 the Central District of California and after-hours to federal, state, and local LEAs in

20 42 states nationwide and two U.S. territories.3 Dkt. No. 484, SF 50; Trial Ex. 101.

21

22

District of California, where the detainer is not based upon a final order of removal signed by an immigration judge or the individual is not subject to

23

ongoing removal proceedings for whom ICE did not issue an administrative warrant of arrest at the time it issued an immigration detainer.

24

25

Plaintiff Simon Chinivizyan is a representative of the Judicial Determination Class and the Statutory Subclass.

26 2 The warrant accompanying the detainer is either the I-200: a warrant of arrest, or the 27 I-205: a warrant of removal.

28 3 ICE officers do not currently issue detainers in Alaska, Washington, Oregon,

4.

Case 2:12-cv-09012-AB-FFM Document 548 Filed 09/27/19 Page 5 of 37 Page ID #:20189

1 12. PERC agents issue detainers based on electronic database searches and do

2 not perform any other investigation outside database checks. Dkt. No 484, SF 51.

3 13. PERC agents do not conduct interviews of subjects before issuing a detainer.

4 Dkt. No 484, SF 52.

5

14. In California, the Transparent Review of Unjust Transfers and Holds

6

(“TRUTH”) Act was passed to require LEAs to serve detainers. See Cal. Gov.

7

Code § 7283

8

15. Since the inception of this lawsuit, ICE has used five different detainer

9

forms: the December 2011 revision, the December 2012 revision, the June 2015

Form I-247D, the August 2015 Form I-247X, and the April 2017 Form I-247A.

10

See Exs. 92-96.

11

16. The introduction of the detainer form marked a change in ICE’s approach to

12

removal.

13 C. The Shift to Automatic Detainers

14

17. In 1999, the United States introduced the Integrated Automated Fingerprint

15

Identification System (“IAFIS”), a 10-rolled fingerprint identification system for

16

use by federal, state, local, and international law enforcement and other authorized

17 agencies. Trial Ex. 98.

18 18. The Automated Biometric Identification System (“IDENT”) is managed by

19 the DHS US-VISIT Program and stores and processes biometric and biographic

20 information—including fingerprints and, where available, facial recognition data—

21 for DHS national security, law enforcement, immigration, intelligence, and other

22 DHS mission-related functions. Trial Ex. 47.

23 19. ICE connects directly to IDENT through its EAGLE4 interface. Dkt. No.

24

484, SF 91.

25

20. IDENT contains over 237 million unique identities. Dkt. No. 484, SF 90.

26 27 Arizona, New Mexico, Colorado, Oklahoma, and Florida.

28 4 EID Arrest Guide for Law Enforcement.

5.

Case 2:12-cv-09012-AB-FFM Document 548 Filed 09/27/19 Page 6 of 37 Page ID #:20190

1 21. IDENT contains fingerprint data for certain United States citizens, including

2 those whom the FBI believes belong in the system, those who voluntarily enroll in

3 certain “trusted traveler” programs, those who have applied to naturalize as United

4 States citizens, and those who have filed applications for certificates of citizenship.

5

Nemeth Dep. 26:4-27:6; 41:14-42:9; 59:15-19.

6

22. IDENT tracks information for each individual encounter with law

7

enforcement. An encounter occurs when an individual’s fingerprint is live captured

8

by an ICE officer or agent. Trial Tr. 1161:13-24 (Nemeth).

9

23. IDENT automatically compares the biometrics from each new encounter

with biometrics already contained within the database and collected from previous

10

encounters by law enforcement officers and immigration officers. If the biometrics

11

do not match what is already in the system, IDENT automatically assigns a new

12

identity for the encounter and assigns the fingerprints a Fingerprint Identification

13

Number (“FIN”).

14

24. IDENT can determine an individual’s identity even where there are

15

typographical errors in previous encounter entries. Trial Tr. 1165:8-12 (Nemeth).

16 25. IDENT is a very accurate source of biometric matching. See Nemeth Dep.

17 Tr. 67:13-20.

18 26. In 2006, the government began its effort to create interoperability between

19 IAFIS and IDENT. The goal of the project was to enable the near real-time

20 exchange of biometric and biographic information between agencies that is

21 complete, accurate, and timely. This would allow fingerprints entered into one

22 system to be automatically run against the other system in order to identify

23

matches. The process enabled verification of a person’s identity and facilitated the

24

sharing of criminal and immigration information. Trial Ex. 98; Dkt. No. 484,

25

SF 45.

26

27. By 2008, IDENT and IAFIS were interoperable. Dkt. No. 484, SF 102.

27

28

6.

Case 2:12-cv-09012-AB-FFM Document 548 Filed 09/27/19 Page 7 of 37 Page ID #:20191

1 28. In 2008, ICE launched the Secure Communities program, which harnessed

2 the interoperability technology as a new tool for immigration enforcement. Dkt.

3 No. 484. SF 48.

4 29. The program aimed to increase the number of criminal aliens identified

5

“[t]hrough the deployment and use of biometric-based identification systems” and

6

anticipated that “all persons booked into custody [would] be automatically checked

7

for their immigration status as well as prior criminal history”. Trial Ex. 123 at 2-3.

8

30. Through Secure Communities, ICE sought to make the process of

9

identifying aliens and issuing detainers more streamlined by requiring only “a

single query by a participating local law enforcement agency (LEA)” to “confirm[]

10

the identity and immigration status of a subject being processed during

11

incarceration booking.” Trial Ex. 99 at 3.

12

31. Secure Communities signaled a shift in ICE procedures. Prior to Secure

13

Communities, ICE manually identified individuals for removal in jails and prisons

14

nationwide through the Criminal Alien Program (“CAP”). Trial Ex. 123 at 4.

15

32. CAP placed ICE agents in all prisons and some jails in order to identify

16 individuals potentially subject to removal through interviews and records review.

17 Trial Tr. At 1445:8-1446:17 (Robbins); Trial Ex. 98 at ICE 220.003.

18 33. This process required ICE agents to interview a person to determine whether

19 to issue a detainer. Trial Tr. 1373:11-1374:1 (Marin); ICE 30(b)(6) Philip T.

20 Miller, Dep. Tr. 22:6-16.

21 34. In November 2014, Secure Communities was terminated. Dkt. No. 484, SF

22 20.

23

35. On February 20, 2017, Secure Communities was reinstated, and other field

24

guidance regarding the enforcement of immigration laws was rescinded. See Trial

25

Ex. 121.

26

36. The memorandum reintroducing Secure Communities also rescinded “all

27

existing conflicting directives, memoranda, or field guidance regarding the

28

enforcement of our immigration laws and priorities for removal” insofar as the

7.

Case 2:12-cv-09012-AB-FFM Document 548 Filed 09/27/19 Page 8 of 37 Page ID #:20192

1 materials conflicted with the United States’ goal to “faithfully execut[e]

2 immigration laws” and prioritize the removal of aliens who are convicted felons or

3 who are involved in gang activity or drug trafficking. Id. at 2.

4 37. Since Secure Communities’ reinstatement, several states have passed laws

5

prohibiting compliance with detainers, while others have laws authorizing or

6

mandating compliance. Dkt. No. 484, SF 35.

7

38. ICE officers continue to issue detainers to state and local law enforcement

8

agencies, even if those agencies do not honor detainers. See Trial Tr. 1420:15-24

9

(Robbins).

10 D. Establishing Probable Cause for Removability

11

39. In November of 2014, ICE adopted a policy determining that it must have

probable cause before requesting a person’s arrest and detention on an immigration

12

detainer. See Trial Ex. 97. The change was at least partially motivated by Fourth

13

Amendment concerns regarding the use of immigration detainers. Id.

14

40. The Form I-247A, in use today, indicates that probable cause exists to

15

support an individual’s removability based on one of the following criteria: (1) a

16

final order of removal against the alien; (2) the pendency of ongoing removal

17 proceedings against the alien; (3) biometric confirmation of the alien’s identity and

18 a records check of federal databases that affirmatively indicate, by themselves or in

19 addition to other reliable information, that the alien either lacks immigration status

20 or notwithstanding such status is removable under U.S. immigration law; and (4)

21 statements made by the alien to an immigration officer and/or other reliable

22 evidence that affirmatively indicate the alien either lacks immigration status or

23 notwithstanding such status is removable under U.S. immigration law. Trial Ex.

24

96.

25

41. The I-247A form retained the probable cause language of the I-247D and I-

26

247X,5 and requests that the receiving law enforcement agency “maintain custody”

27 5 The form reads: “DHS has determined that probable cause exists that the subject is a
28 removable alien. This determination is based on: . . . biometric confirmation of the

8.

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1 of the individual for a “period NOT TO EXCEED 48 HOURS.” See Trial Exs. 94-

2 96.

3 42. Paramount in determining probable cause of removability is identifying that

4 a person is not a U.S. citizen. See, e.g., Trial Tr. 217:13-16 (Stock) (“The most

5

important thing to do before you decide whether someone’s going to suffer

6

immigration consequences . . . is to figure out whether the person is a citizen first”);

7

Dkt. No. 481-11 (ICE 30(b)(6) Schichel Dep. Tr. 164:14-18) (stating that

8

confirming a person’s alienage is “part of establishing probable cause” every time

9

officers investigate a potential subject for a detainer).

43. Establishing probable cause of removability also requires a determination of

10

a person’s current immigration status. Trial Ex. 96 (noting, in pertinent part, that

11

probable cause can be based on checks that indicate “that the alien either lacks

12

immigration status or notwithstanding such status is removable under U.S.

13

immigration law”); see also Dkt. No. 479-3 (Schichel Dep. Tr. 157:13-22).

14

44. ICE uses IDENT to satisfy the biometric confirmation described in the I-

15

247A. Trial Tr. 1418:20-1419:2 (Robbins). ICE relies on an individual’s

16 fingerprints, which are taken at the time of arrest. Id.

17 45. In addition, law enforcement specialists at the Law Enforcement Support

18 Center (“LESC”) and analysts at the PERC search multiple databases to find

19 “affirmative evidence of removability”. Trial Tr. 1419:3-10 (Robbins).

20 E. Determining Citizenship

21 46. An individual’s citizenship and immigration status is not static and may

22 change multiple times over a lifetime. See, e.g., Trial Tr. at 153:22-159:14

23 (Bacon).

24

47. Accordingly, a person’s citizenship or immigration status at some fixed

25

point in time may not be a reliable indicator of their current citizenship status. Trial

26 alien’s identity and a records check of federal databases that affirmatively indicate, by 27 themselves or in addition to other reliable information, that the alien either lacks
immigration status or notwithstanding such status is removable under U.S. 28 immigration law . . . [.]”

9.

Case 2:12-cv-09012-AB-FFM Document 548 Filed 09/27/19 Page 10 of 37 Page ID #:20194

1 Tr. 1092:6-17 (Garibay) (testifying that while a person may not have been a United

2 States citizen in 2010, that has no bearing on whether they are a citizen presently).

3

48. A foreign-born person can become a United States citizen in one of three

4

ways: (1) naturalization, (2) acquisition, or (3) derivation. Trial Tr. 162:22-164:21

5

(Bacon).

6

49. Generally, a person must be a lawful permanent resident (“LPR”) to

7

naturalize. Trial Ex. 131 at 1; Trial Tr. 512: 21-24 (Johansen-Mendez). People

8

who serve or served honorably in the U.S. armed forces may be excused from this

9

rule. See 8 U.S.C. §§ 1439-40.

50. In addition, a person may pass in and out of lawful or unlawful status; a

10

common example of this is a child’s derivation of citizenship. Trial Tr. 163:4-11

11

(Bacon).

12

51. Determining whether a person acquired or derived citizenship is a complex

13

inquiry and illustrates the fluidity one may experience with respect to immigration

14

status. See Trial Tr. 242:20-255:23 (Stock).

15

52. For derivative citizenship, the analysis can turn on, among other things:

16

which parent is a citizen, when that parent became a citizen, whether the person’s

17

parents were married, whether and when the U.S. citizen parent lived in the United

18

States and for how long, whether the father legitimated the child, whether the child

19

lived in the custody of the U.S. citizen parent or parents, and at what point the

20

child lived in the custody of the U.S. citizen parent(s). Id.

21

53. In some cases, a determination on derivative citizenship may depend on

22

knowing whether a person’s grandparent(s) were U.S. citizens or whether a person

23

or their parent(s) served in the U.S. Armed Forces. Id.

24 F. Determining Immigration Status

25

54. Similarly, determining a person’s immigration status may be a complex

26

inquiry requiring a thorough examination of the individual’s history.

27

55. Aside from foreign born-U.S. citizens, there are four major categories of

28

foreign-born persons who lawfully reside within the United States: (1) immigrants,

10.

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1

(2) nonimmigrants, (3) refugees/asylees, (4) and non-citizens who otherwise have

2

permission to be present. Trial Tr. 148:17-162:19 (Bacon)

3

56. Immigrants are non-citizens with permission to reside permanently in the

4

United States. Generally, these are lawful permanent residents (“LPRs”). Trial Tr.

5

149:9-18 (Bacon). United States Citizenship and Immigration Services (“USCIS”)

6

commonly grants LPR status, but the Department of State (“DOS”) may also grant

7

it. Trial Tr. 144:20-148:15, 149:19-150:1 (Bacon).

8

57. An LPR’s status does not change unless an immigration judge determines

9

that status should be taken away. Trial Tr. 531:14-16 (Johansen-Mendez).

58. Non-immigrants are non-citizens admitted to the United States on a visa for

10

a specific purpose and/or period of time, such as for tourism, employment or study.

11

Trial Tr. 151:14-154:20 (Bacon).

12

59. There are 23 statutory categories of nonimmigrant visas, which DOS

13

generally grants. Trial Tr. 154:5 (Bacon); Trial Ex. 69. USCIS generally handles

14

status changes after nonimmigrants enter the United States. Trial Tr. 155:2-156:3

15

(Bacon) (describing an example of a status change from F1 student visa to H1-B

16

employment visa, as adjudicated by USCIS).

17

60. If a nonimmigrant violates the condition(s) of their status, such as by

18

overstaying their authorized period of stay, their lawful status terminates. See

19

generally 8 U.S.C. § 1227(a)(1)(C)(i) (rendering deportable any “nonimmigrant

20

. . . who has failed to maintain the nonimmigrant status in which the alien was

21

admitted or to which it was changed . . . , or to comply with the conditions of any

22

such status.”).

23

61. Refugees and asylees are non-citizens who receive permission to reside in

24

the United States based on a well-founded fear of persecution in their native

25

country. Trial Tr. 159:18-160:8 (Bacon).

26

62. Refugee status is granted outside the United States and involves different

27

agencies, including the United Nations and ultimately the DOS and USCIS. Trial

28

Tr. 160:9-16 (Bacon).

11.

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1

63. Asylum is granted inside the United States by either USCIS or, if the person

2

is placed in removal proceedings, by the Executive Office for Immigration Review

3

(EOIR). Trial Tr. 160:15-16 (Bacon); 587:4-20 (Johansen-Mendez).

4

64. Once granted, asylum is “essentially a permanent status unless something’s

5

done to change it, unless [the asylee] adjust[s] to lawful permanent residence or

6

unless there’s cause to terminate that asylee designation.” Trial Tr. 516:2-7

7

(Johansen-Mendez).

8

65. Those permitted to be present in the United States who otherwise lack

9

formal status are non-citizens granted special protected status. Trial Tr. 161:4-

162:19 (Bacon).

10

66. The two largest protected groups of non-citizens are those who USCIS has

11

granted Temporary Protected Status (“TPS”) and Deferred Action for Childhood

12

Arrivals (“DACA”). Id.; Trial Ex. 72 at 1 (699,350 active DACA recipients); Trial

13

Ex. 73 at 5 (approximately 437,000 TPS holders).

14 G. Two-Step Determination of Probable Cause

15

67. The process ICE undertakes to determine probable cause for removal

16

requires analysts at the PERC and officers at LESC to take two steps.

17

68. First, officers and analysts rely on IDENT to match biometric information.

18

69. IDENT creates a new biometric input whenever a law enforcement officer

19

has an encounter with an individual. Trial Tr. 1161:13-24 (Nemeth).

20

70. When an individual is arrested by an LEA on a criminal charge, the person’s

21

fingerprints are sent to the FBI and automatically run against IAFIS and IDENT.

22

Dkt. No. 484 SF 45-46.

23

71. If there is a fingerprint match in IDENT,6 a notification—an Immigrant

24

Alien Query (“IAQ”)—is automatically generated and sent to LESC. Trial Tr.

25

1436:7-17 (Robbins). Accordingly, if an individual has numerous encounters with

26 6 This would mean DHS has some record of a prior encounter with that person, 27 including, among other things, an encounter as the person entered the country, or an
application for an immigration benefit. 28

12.

Case 2:12-cv-09012-AB-FFM Document 548 Filed 09/27/19 Page 13 of 37 Page ID #:20197

1

law enforcement, IDENT would capture all biometric and biographical data on that

2

individual, regardless of typographical errors.7

3

72. ACRIMe8 automatically searches the NCIC, NLETS, CIS, CLAIMS 3,

4

CLAIMS 4, EID, IDENT, ADIS, SEVIS, and EOIR databases to match the FIN

5

submitted with other encounters for that same FIN. Trial. Tr. 930:22-931:23; 933:

6

8-21 (Garibay).

7

73. ACRIMe then automatically generates an Immigrant Alien Response

8

(“IAR”) from information stored on the ten databases; the IAR is the automatically

9

delivered to the PERC. Trial Tr. 930:3-5 (Garibay).

74. The IAR contains basic biographic information and criminal history, as well 10
as a short statement about immigration status and removability.9

11

75. Next, an analyst10 conducts a first level review of the IAR and makes a

12

recommendation to an ICE deportation officer about whether a detainer should be

13

issued. Dkt. No. 484 SF 54, 58.

14

15

7 Thus, regardless of whether an individual has a common name spelling, or whether a field officer made errors when inputting biographical information, a person’s FIN

16

number will remain the same across multiple encounters and will be able to be located on IDENT through its search inquiry.

17

18

8 ACRIMe (Alien Criminal Response Information Management System) is a webbased system that includes two primary applications:

19

(1) ACRIMe Mod: which is used by the LESC to process IAQs and transmit IARs back to the LEA and responsible ERO field office(s) or the PERC

20

(2) ACRIMe Field: which is used by the PERC and ERO Field Offices to see

the results of the LESC’s integrated records checks, process IARs, and

21

initiate immigration enforcement, if applicable.

22 See Trial Ex. 78 at ICE029605.

23

9 The short statement provides only limited insight into an individual’s immigration or citizenship status, and can often contain speculative language on a person’s status.

24 See e.g. Ex. 170 at ICE 0023957 (“D.H.S. records indicate that the subject was legally

25

admitted to the U.S. as a non-immigrant until the date noted above. If this person has remained longer in the U.S. without D.H.S. permission, this person may be in

26

violation of immigration laws. If the departure date is indicated above, no electronic record of a new entry has been found. Subject appears to be a non immigrant

27 overstay.”) (emphasis added).

28 10 It is important to note that analysts are not federal employees nor immigration

13.

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1

76. The analysts need not search each database independently. Trial Tr. 933:5-9

2

(Garibay).

3

77. However, the analyst may, at their discretion, run independent database

4

checks. See Trial Tr. 1438:19-1439:11 (Robbins) (“. . . on complex cases

5

[analysts] have access to go through multiple databases to make sure they get it

6

right, and they also have the ability to talk to legal counsel, their supervision, the

7

[deportation officers], or the officer’s supervisors”); see also Trial Tr. 1437:19-

8

1438:2 (Robbins) (“The analyst at the PERC will take the case. They will use

9

[ACRIMe] and other databases to make a recommendation on that particular

case—an enforcement recommendation or a no action recommendation, to the 10

deportation officer.”)

11 H. The Databases

12

78. ICE does not rely on one single database to determine citizenship and

13

immigration status.

14

79. When Plaintiff Gonzalez filed this case, agents at the PERC issued detainers

15

based on searches of IDENT and four other databases: CIS, CLAIMS 3, TECS,

16

and ENFORCE/EARM. Ex. 102 at ICE 652.

17

80. In December 2017, the PERC adopted ACRIMe Field, which searches

18

IDENT and nine other databases: CIS, CLAIMS 3, CLAIMS 4, ADIS, SEVIS,

19

EOIR, EID, NCIC, and NLETs. Dkt. No. 484, SF 56; Trial Tr. 933:8-21

20

(Garibay).

21

81. CIS—the Central Index System, is a database created by USCIS and

22

contains biographical information on individuals. Trial Tr. 175:3-14 (Bacon).

23

82. CLAIMS 3 is a database ICE relies on for information on immigration

24

benefits applications. CLAIMS 3 allows an ICE officer or analyst to review a

25

person’s applications for, among other things, lawful permanent residency,

26

temporary protected status, and work authorization. Trial Tr. 510:16-21

27

(Johansen-Mendez).

28 agents, rather they are contractors.

14.

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1

83. CLAIMS 3 also provides information on how an application was adjudicated

2

(grant or deny), and whether a credential (e.g., employment authorization card)

3

was generated a result of the adjudication. Trial Tr. 510:22-511:2 (Johansen-

4

Mendez).

5

84. CLAIMS 4 exclusively holds information about naturalization applications

6

and provides information on how the application was adjudicated. Trial Tr. 511:

7

16-19 (Johansen-Mendez).

8

85. ADIS11 provides arrival and departure information for non-immigrant visa

9

holders. ADIS pulls its arrival and departure information from TECS and IDENT.

Dkt. No. 484, SF 77; Trial Ex. 54 at 12-13; Trial Tr. 513:1-514:17 (Johansen10
Mendez).

11

86. ICE relies on other databases12 to supplement information it receives from

12

CIS, CLAIMS 3, CLAIMS 4, and ADIS.

13

14 11 Arrival and Departure Information System.

15 12 Coupled with those discussed in substance, ICE also reviews:

16 PCQS (or “Person Centric Query Search” which provides a “snapshot” of results from 17 CIS and CLAIMS but with a “little less detail”) see Trial Tr. 967:10-21 (Garibay); 18 Trial Tr. 1515:9-17 (Johansen-Mendez);

19

SQ11 (a lookout alert system, e.g., for individual’s previously deported) (Trial Tr. 969:4-16 (Garibay);

20 SQ94 (provides information on individuals that were issued an I-94 when admitted
21 into the country) Trial Tr. 969:17-25 (Garibay);

22 ELIS 1 & 2 (provide extremely limited information on immigration benefits) Trial Tr. 23 1512:8-1513: 4 (Johansen-Mendez);

24 TECS (a portal to NCIC—a database related to criminal history—and ADIS);

25 California Birth Index (database containing information (i.e., date of birth, full name,

26

country of birth, gender, and mother’s maiden name) on U.S. citizens born in California; however, contains no information on births after 1995. See Trial Ex. 228;

27 and

28 CCD (contains information about visas that noncitizens have applied for; may contain

15.

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1

87. SEVIS13, a database maintained by ICE, contains records of non-citizens

2

who enter the United States as students and exchange visitors (F, M, and J visas),

3

as well as their dependents. Dkt. No. 484, SF 65.

4

88. EOIR provides basic information about immigration court proceedings.

5

EOIR does not reflect how the proceeding was adjudicated, simply that the case

6

was terminated. Dkt. No. 484, SF 67; Dkt. No. 481-2 (Cano Dep. Tr. 66:6-12).

7

89. EID contains information about previous encounters with ICE officers. Trial

8

Tr. 951:1-10 (Garibay). Specifically, EID provides information on whether a

9

person is currently in removal proceedings and whether a person has been

previously removed or deported. Id. 10
90. EID is a repository for all records created, updated, and accessed by other

11

software applications, including ENFORCE and EAGLE. Trial Tr. 951:4-952:21

12

(Garibay).

13

91. NCIC14 and NLETS15 are criminal databases and do not provide any

14

information for establishing a person’s citizenship or immigration status. These

15

databases are relevant for removability purposes. See e.g., 8 U.S.C. §§

16

1182(a)(2)(A)-(I); Trial Tr. 607:7- 608:10 (Johansen-Mendez).

17 I. Shortcomings in the Databases

18

92. The databases on which ICE relies for information on citizenship and

19

immigration status often contain incomplete data, significant errors, or were not

20

designed to provide information that would be used to determine a person’s

21

removability.

22

93. The CIS database is the “spine” of USCIS’s functions. Trial Tr. 137:6

23

(Bacon).

24 25 information about an individual’s passport) Trial Tr. 1532: 9-18 (Johansen-Mendez). 26 13 Student and Exchange Visitor Information System.
27 14 National Crime Information Center.

28 15 National Law Enforcement Telecommunications System.

16.

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1

94. CIS was first established in 1985 and it provides basic biographical

2

information on an individual. Trial Tr. 175:3-14 (Bacon).

3

95. CIS contains five pieces of data that analysts or officers may use in

4

determining citizenship or immigration status: (1) first name, (2) last name, (3)

5

date of birth, (4) country of birth, (5) and classification when the individual entered

6

the United States. Id.

7

96. The five pieces of biographical information recorded on CIS are not

8

independently verified. Trial Tr. 176:3-12 (Bacon).

9

97. Indeed, data entered into CIS is often erroneous. Dkt. No. 481-5 (ICE

30(b)(6) Dep. Hamm Tr. 219:17-220:2); see also Trial Tr. 521:8-524:1, 527:3-7,

10

523:13-19 (Johansen-Mendez).

11

98. In 1995, the Government Accountability Office (“GAO”) described CIS as

12

“incomplete and inaccurate,” noting that 22 percent of records “contained either

13

misspelled names, incorrect name order, or incorrect nationality.” Dkt. No. 484,

14

SF 104; Trial Ex. 62 at 3.

15

99. Moreover, a 2012 DHS study reported that CIS’s class of admission field

16

was wrong for 12 percent of individuals it studied. Trial Ex. 58 at 1.

17

100. Many of the errors in the class of admission field result from USCIS’s

18

failure to update CIS when a person’s immigration status changes. The class of

19

admission field is “derived from DHS’s administrative action related to a person’s

20

initial application/petition or apprehension.” Trial Ex. 43 at 7.

21

101. Updates to the class of admissions field are meant to occur automatically

22

when other databases that feed information to CIS are updated, but there are often

23

problems with these uploads. Id.; Trial Ex. 251 at 30 (“CIS does not always

24

contain the latest status updates from USCIS benefits case tracking systems . . . In

25

these cases, uploads to the CIS may be delayed by data input and uploading

26

processes, or the transfer of data between systems may fail initially.”); id. at xi

27

(“Among other issues, when decisions concerning noncitizens’ statuses, such as

28

changes affecting employment status and length of authorized stay in the United

17.

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1

States, are updated in one system, one or more uploads from a case tracking system

2

are required for them to appear in the Central Index System (CIS). This process

3

delays their availability in CIS and introduces opportunity for error, especially if

4

there are problems with uploads.”) (emphasis added); Trial Tr. 522:1-9 (Johansen-

5

Mendez) (CIS often “would have an old class of admission that was no longer

6

updated.”).

7

102. In an April 10, 2012 email to ICE Headquarters, Senior ICE official David

8

Marin wrote: “For the past couple of months, AFOD Martinez has noticed an

9

increase in the volume of biometric Immigration Alien Responses (IAR) for

individuals that are determined, via agency database checks, to be removable, only

10

to later discover that the person is a United States citizen.” Dkt. No. 484, SF 107;

11

Trial Ex. 14 at 1. Mr. Marin then asked for a “mechanism in which we can modify

12

the CIS database to indicate the individual’s true nationality and citizenship”

13

because “[w]e have found that it is not easy to get USCIS to change someone’s

14

status in CIS.” Id. (emphasis added).

15

103. In a follow-up email on May 9, 2012, Marin wrote that “[US]CIS is not

16

updating its databases, so when we run our queries it shows the subject is an

17

[Lawful Permanent Resident], we take appropriate action. This case appears to be

18

exactly that; CIS databases show the subject as a LPR, so the hold was properly

19

placed based on the information we had at the time. Now the subject claims to be

20

a [United States Citizen] and has a [naturalization certificate]; if this is true and the

21

Central Index System was timely updated, we may not have run into this issue.

22

Unfortunately these types of cases occur frequently.” Dkt. No. 484., SF 108; Trial

23

Ex. 15] (emphasis added).

24

104. DHS is aware of the errors in the class of admission field in CIS. See Trial

25

Ex. 43 at 7 (if law enforcement seeks to detain an individual based on the class of

26

admission code in CIS, they would request the physical A-File for further

27

investigation); Trial Tr. 186:2-187:5 (Bacon) (same); Trial Ex. 244 at 6 (advising

28

SAVE agencies not to rely on the class of admission code alone because it can be

18.

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1

wrong, but to view it together with other information, such as immigration

2

documents).

3

105. Further, CIS’s primary function is not to provide indicia of citizenship or to

4

establish probable cause for removal; CIS is meant to direct users to a person’s A-

5

File. Trial Tr. 140: 23-24 (Bacon) (“CIS has only one real function and that’s to

6

direct people to where the A-File is.”); Trial Tr. 420:25 – 421:4 (Meinhardt) (“the

7

main reason for accessing [CIS] is to pin down not only just the bare essentials

8

information, but really the A-File number”); see also Trial Ex. 42 at 4 (“The

9

purpose of CIS is to provide a searchable central index of A-Files and to support

the location and transfer of A-Files among DHS personnel and offices as needed in

10

support of immigration benefits and enforcement actions.”).

11

106. CLAIMS 3 and CLAIMS 4 are USCIS case management systems designed

12

to track and process applications for certain immigration benefits and

13

naturalization. Trial Ex. 41 at 2; Trial Ex. 42 at 1.

14

107. CLAIMS 3 is an “old, legacy, mainframe system[] that do[es] not have the

15

capability to interface in real-time with other systems.” Id.

16

108. CLAIMS 3, like CIS, contains information that is often incorrect. See Dkt.

17

No. 481-5 (ICE 30(b)(6) Hamm Dep. Tr. 220:14-19) (“[t]he information is

18

outdated. It’s antiquated. It’s not updated appropriately.”).

19

109. Further, individuals familiar with CLAIMS 3 consider the database’s error

20

rate to be close to 30 percent. See id.; see also Trial Tr. 791:7-792:17 (Corrales);

21

Trial Ex. 237 at 12 (“USCIS’ CLAIMS 3, used to store immigration benefits

22

application data, was not updated in a timely manner”).

23

110. Both CLAIMS 3 and CLAIMS 4 destroy information after 15 years. Trial

24

Tr. 789:16-18 (Corrales); Trial Tr. 773: 13-15 (Corrales).16

25

111. As a result, any individuals who obtained LPR status before 2004 and have

26

not had any further interaction with USCIS would not be located in a search of

27 16 This means that neither CLAIMS database contains any information from before
28 September 27, 2004.

19.

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1

CLAIMS 3. This information would only be located in CIS, which has already

2

been discussed as an error-laden source of information.

3

112. ADIS is intended as a system for generating leads on visa overstays to be

4

further investigated including through non-database sources. Trial Ex. 54 at 2

5

(purpose of ADIS is “[f]acilitating the identification and investigation of

6

individuals who may have violated their terms of admission.)

7

113. ADIS has its limitations as a source of information in that no comprehensive

8

system to record entry and exit information has been adopted and there is limited

9

information on individuals who enter at land borders. Trial Ex. 237 at 7, 18-21;

see also Trial Ex. 236 at 3, 12-13.

10

114. Indeed, Customs and Border Protection (“CBP”) policy is not to take any

11

enforcement action “based solely on ADIS (or any other system-generated) alerts,”

12

and to mitigate risk of error by “corroborat[ing] all information [in ADIS] before

13

taking an adverse action” against a person. Trial Ex. 54 at 14.

14

115. As recently as 2017, the DHS OIG found that ADIS incorrectly identified

15

visa overstays more than 42 percent of the time. Trial Ex. 237 at 24. Twenty-five

16

percent of people ADIS and SEVIS identified as visa overstays had actually

17

applied for and/or received permission to extend their stay from USCIS. Id.

18

Seventeen percent had in fact departed the country as required, but may have

19

returned on a subsequent visit with permission on a new, non-immigrant visa. Id.

20

116. In contrast, ICE relies solely on ADIS for information about non-immigrants

21

entering and exiting the country on visas without corroborating the information

22

stored on ADIS.

23

117. Without a comprehensive collection of information about both exits and

24

entries, ADIS has severe limitations as a source of information about who has

25

entered the country on a visa and whether they have overstayed that visa.

26

118. SEVIS contains information on three types of visa holders, and shares the

27

same entry/exit information in ADIS. Dkt. No. 484, SF 65; Trial Ex. 54 at 3.

28

20.

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1

119. TECS, the predecessor to ADIS, also has limitations on its information. See

2

Trial Ex. 251 at A-17 (“TECS is the most error prone database accessed by E-

3

Verify, which particularly affects the ability to accurately verify nonimmigrants”);

4

Trial Ex. 236 at 12 (“Because of concerns about the reliability of the department’s

5

overstay data, neither DHS nor its predecessor has regularly reported annual

6

overstay rates to Congress since 1994.”).

7

120. In addition to the numerous errors in the databases discussed above, a

8

number of immigration and citizenship statuses are either not captured, or captured

9

on databases with dubious reliability.

121. As an initial matter, there is no national database of all U.S.-born citizens.17 10
122. Similarly, ICE has never had access to any database of derivative or

11

acquired citizens, because none exists. Dkt. No. 484, SF 115.

12

123. With respect to asylees and refugees, ICE could potentially derive

13

information in CIS’s class of admissions, but only to the extent the information

14

captured in the class of admissions field is either properly updated or completely

15

filled out.

16

124. ICE is not required to search the Refugees, Asylum and Parole System

17

(“RAPS”) database—the database containing information about refugee and

18

asylum applications. Trial Ex. 53 at 66.

19

125. ICE relies upon CLAIMS 3 for information on TPS and DACA. Dkt. No.

20

484, SF 74.

21

126. All told, the collection of datapoints ICE gathers from the various databases

22

does not provide affirmative indicia of removability to satisfy probable cause

23

determination because the aggregation of information ICE receives from the

24

databases is largely erroneous and fails to capture certain complexities and nuances

25

of immigration law.

26

27 17 While CCD may contain some passport information, it is not a broad-reaching
28 database that captures all U.S.-born citizens.

21.

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1

127. ICE does not look at databases for a single record that affirmatively

2

indicates probable cause for removal, but instead weaves together a patchwork web

3

of databases owned and maintained by separate and distinct agencies to make

4

complex determinations about citizenship, immigration status, and removability.

5

No single database contains all the information needed to make a probable cause

6

determination; no one piece of information provides ICE probable cause to issue a

7

detainer to members of the Probable Cause Subclass, and the supplementation of

8

additional databases—each with its own deficiencies—does not provide sufficient

9

indicia of probable cause.

10 J. The Effect of ICE’s Reliance on the Databases for Probable Cause

11

Determinations

128. Errors in the databases ICE reviews to make its probable cause

12

determinations for removal have, on multiple occasions, led to arrests of U.S.

13

citizens and lawfully-present non-citizens.

14

129. Data produced by ICE during the period of May 2015 to February 2016

15

reveals that of the 12,797 detainers issued during that time frame, 771 were lifted

16

because the individuals were either U.S. citizens or otherwise not subject to

17

removal. See Trial Tr. 812:12-817:25 (Corrales); Trial Ex. 125.

18

130. Of those 771 detainers lifted, 42 explicitly provide that the detainer was

19

lifted because the individual was a U.S. citizen. Trial Ex. 124.

20

131. Further, evidence introduced in this case includes dozens of additional

21

examples of U.S. citizens wrongly subject to detainers because of database errors.

22

See Trial Ex. 163. These examples18 illustrate the real-life impact of the relying on

23 18 The narratives resolving these improperly issued detainers include language

24 highlighting the fallible nature of the databases. See e.g., Trial Ex. 175 (detainer lifted

25

because CIS wrongly showed lifted LPR status) (“Upon review of database information it was determined that subject was amenable to DHS/ICE enforcement

26

action with the following status: LPR-SA1. Based on this information an ICE Immigration Detainer was lodged. On 12/05/2015, the detainer was lifted . . . [.]

27 Subject appears to have derived citizenship in the United States.”); Trial Ex. 187

(detainer lifted two weeks later after second level review of subject’s file at PERC

28 because subject derived citizenship from naturalized parent) (“Upon review of

22.

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1

a makeshift set of databases to make citizenship and immigration status

2

determinations.

3

132. The cited instances of citizens being misclassified are not exhaustive.

4

Indeed, practitioners in immigration law echo the frequency with which ICE issues

5

detainers to U.S. citizens and lawfully present non-citizens. See Trial Tr. at 230:7-

6

232:22, 240:17-242:12 (Stock) (describing routine database error that leads to

7

derivative citizens being wrongly identified as lawful permanent residents); Trial

8

Ex. 36 (describing same); Trial Tr. 916:7-20 (Corrales) (testifying that while

9

counsel at ICE, she was tasked with reviewing 50 to 200 memos regarding

potential claims to U.S. citizenship arising solely out of the Los Angeles area in a 10

two year period.).

11

133. ICE endeavors to reduce its error rates when issuing detainers. See Trial Tr.

12

1469:19-20 (Robbins).

13 K. Alternate Sources of Information

14

134. Biometric verification and database checks are not the only methods for ICE

15

to gather information that could support probable cause for removal.

16

135. As discussed above, while CIS provides cursory biographical information,

17

its primary function is to direct users to a person’s A-File. Trial Tr. 420:25-421:4

18

(Meinhardt) (“the main reason for accessing [CIS] is to pin down not only just the

19

bare essentials information, but really the A-File number”); see also Trial Ex. 42 at

20

4 (“The purpose of CIS is to provide a searchable central index of A-Files and to

21

22 database information it was determined that subject was amenable to DHS/ICE

23

enforcement action as a LPR. Based on this information an ICE Immigration Detainer was lodged . . . . [Second level review] performed by PERC, subject had perceedings

24 [sic] terminated in 2013 due to his probative claim to [citizenship] . . . father

25

[naturalized] on 10/11/2000 when subject was 16, subject autoderived on 02/27/2001 when [the Child Citizenship Act of 2000] went into effect.”); see also Trial Ex. 202

26

(detainer lifted because subject was naturalized in 1983 and no database had information on subject’s naturalization application); Trial Ex. 164 (detainer issued to

27 U.S. born citizen); Trial Ex. 165 (detainer issued to U.S. born citizen based on

database checks determining subject had entered without inspection, two months later,

28 second level review determined subject’s U.S citizenship)

23.

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1

support the location and transfer of A-Files among DHS personnel and offices as

2

needed in support of immigration benefits and enforcement actions.”).

3

136. An A-File is a physical file that contains hard copy documents on a person’s

4

immigration status. Trial Tr. 169:18-170:12 (Bacon). The A-File is capable of

5

painting a more robust picture of a person’s current immigration status.

6

137. USCIS maintains millions of A-Files and has millions more in digitized

7

format.

8

138. Further, physical A-Files may be delivered by expedited mail without

9

serious difficulty.

139. Moreover, the most reliable source of information on a subject’s

10

immigration or citizenship status is the individual. Trial Tr. 369:9-13 (Stock) (“I

11

think you need to interview the person . . . . Because often, when you interview the

12

person, you discover facts that would cause you to realize that they are a United

13

States citizen.”); this is because some questions regarding an individual’s status

14

can only be answered during the interview process. Trial Tr. 1364:4-13 (Marin)

15

(testifying that “in some cases” there is information that would only be available to

16

ICE through an interview of a person).

17

140. The interview process is not new to ICE; face-to-face interviews and jail

18

checks were ICE policy prior to the introduction of Secure Communities. See Dkt.

19

No. 481-7 (ICE 30(b)(6) Philip T. Miller, Dep. Tr. 22:6-16; Trial Tr. 1373:11-

20

1374:1 (Marin)

21 I. The SAVE and E-Verify Programs

22

141. SAVE and E-Verify are two long-standing DHS programs designed to verify

23

immigration status and employment status, respectively, using electronic

24

databases. Trial Tr. 624:11-625:11 (Winkler). The programs use the same core

25

databases ICE relies upon, as well as several others. See Trial Exs. 240 at 4; 241 at

26

8; 242 at 20-24; 243 at 4.

27

142. SAVE and E-Verify provide an instructive comparison to ICE’s use of

28

databases to issue detainers. Both programs take into account the significant

24.

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1

challenges to using databases that are incomplete and error-prone when verifying

2

immigration and employment status. As a result, as Rachel Winkler—who served

3

in USCIS as a subject matter expert on verification programs—explained, neither

4

program uses databases on their own to determine a person’s immigration status.

5

Trial Tr. 646:15-648:7 (Winkler).

6

143. To account for systemic errors in the databases, both SAVE and E-Verify

7

have built in layers of review. The programs incorporate manual database searches

8

and paper records reviews to resolve disparities between records provided by an

9

individual and records in the databases. Trial Ex. 244 at 2; Trial Tr. 657:3-660:4

(Winkler).

10

144. Both SAVE and E-Verify have been subject to significant government

11

oversight, including studies to evaluate the reliability of the databases used. Trial

12

Tr. 663:22-664:16, 672:3-14 (Winkler).

13

145. One study commissioned by USCIS in 2012 and conducted by Westat,

14

examined E-Verify’s accuracy rate at each of the different levels of review. Trial

15

Ex. 251.

16

146. The study found that, of 8.2 million cases submitted in fiscal year 2009, only

17

58 percent of eligible workers could be accurately verified during E-Verify’s

18

automated review level.19 Id. at xi.

19

147. The study also found that 90 percent of eligible workers could be accurately

20

verified during second level review, at which stage USCIS employees take 24

21

hours to run manual checks of the database. Id. at xiii; id. at 6.

22

148. At the final stage of review, which involves the review of paper immigration

23

documentation, E-Verify could accurately verify 94 percent of eligible workers.

24

Id. at x (“It is estimated that 94 percent of FNCs were accurately issued to

25

26 27 19 During automatic searches, E-Verify “checks some systems to determine if
employment authorization can be confirmed.” Trial Ex. 251. The databases reviewed 28 at the automatic review level include, among others: CIS, TECS and CLAIMS 4. Id.

25.

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1

unauthorized workers and 6 percent were inaccurately issued to employment-

2

authorized workers.”).

3

149. The highest percentage (35 percent) of employment-authorized workers who

4

could not be verified at all were foreign-born U.S. citizens. Trial Ex. 251 at 48.

5

150. The report cited two reasons for this: (1) the absence of most naturalization

6

data in DHS systems from before the mid-1990s (which is consistent with

7

CLAIMS 4’s 15-year retention schedule, given that 15 years before 2012 was

8

1997) and (2) the unavailability of information about derivative citizens. Id. at 76

9

(“Most USCIS naturalization data before the mid-1990s are still not reflected in

USCIS systems. Data are also frequently not available for workers who derived 10

U.S. citizenship status.”); see also id. at 51 (“Retaining accurate information on

11

noncitizens who have become U.S. citizens remains a major challenge to E-Verify

12

. . . .”); id. at A-8 (derivative citizenship information “not normally entered into an

13

automated system”).

14

III. CONCLUSIONS OF LAW

15

1. This Court has jurisdiction under 28 U.S.C. § 1331.

16

2. Venue is proper in this district as a significant portion of the events

17

underlying the Complaint occurred within the Central District of California, and

18

Plaintiffs are part of a class of individuals who have been or will be subject to an

19

immigration detainer issued by an ICE agent located in this District.

20 Establishing Fourth Amendment Probable Cause

21

3. The Fourth Amendment protects against “unreasonable searches and

22

seizures.” U.S. Const. amend. IV.

23

4. To prevail on their unlawful seizure claim, Plaintiffs must prove that class

24

members have been or will be seized based solely on their ICE detainers without

25

lawful authority or probable cause. See, e.g., Terry v. Ohio, 392 U.S. 1, 38 (1968)

26

(“The infringement on personal liberty of any ‘seizure’ of a person can only be

27

‘reasonable’ under the Fourth Amendment if we require the police to possess

28

‘probable cause’ before they seize him.”); see also Velazquez v. City of Long

26.

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1

Beach, 793 F.3d 1010, 1018 (9th Cir. 2015) (a “claim for unlawful arrest is

2

cognizable . . . as a violation of the Fourth Amendment, provided the arrest was

3

without probable cause or other justification”) (internal quotation marks omitted)

4

5. The probable cause standard is “incapable of precise definition or

5

quantification into percentages because it deals with probabilities and depends on

6

the totality of the circumstances.” Maryland v. Pringle, 540 U.S. 366, 371 (2003).

7

6. Thus, “[t]o determine whether an officer had probable cause to arrest an

8

individual, we examine the events leading up to the arrest, and then decide

9

‘whether these historical facts, viewed from the standpoint of an objectively

reasonable . . . officer, amount to’ probable cause.” Id.; see also Gerstein v. Pugh,

10

420 U.S. 103, 111 (1975) (probable cause requires “facts and circumstances

11

‘sufficient to warrant a prudent man in believing that the (suspect) had committed

12

or was committing an offense.’”)

13

Computer Databases May be Used to Establish Probable Cause

14

7. Law enforcement agencies may rely on computer databases to establish

15

probable cause if it is reasonable for them to do so. See Herring v. United States

16

555 U.S. 135, 146-47 (2009) (declining to apply exclusionary rule because an

17

officer’s reliance on a computer database is reasonable where no evidence of

18

routine or widespread errors on the database exists); id. at 146 (“In a case where

19

systematic errors were demonstrated, it might be reckless for officers to rely on an

20

unreliable warrant system.”); Arizona v. Evans, 514 U.S. 1, 17 (1995) (O’Connor,

21

J., concurring) (“Surely it would not be reasonable for the police to rely . . . on a

22

recordkeeping system . . . that routinely leads to false arrests.”) (emphasis in

23

original).

24 Probable Cause is Required to Issue Immigration Detainers

25

8. The Fourth Amendment applies to immigration arrests generally, or arrests

26

on detainers specifically. See e.g., Tejeda-Mata v. INS, 626 F.2d 721, 724-25 (9th

27

Cir. 1980) (applying “the constitutional requirement of probable cause” to

28

27.

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1

immigration arrests); Morales v. Chadbourne, 793 F.3d 208, 211 (1st Cir. 2015)

2

(holding an ICE agent must have probable cause to issue an immigration detainer).

3

9. The Fourth Amendment’s protection against unreasonable seizure in the

4

context of a warrantless detainer serves an exceedingly important function in the

5

immigration context because many of the backstops that exist in the criminal

6

justice system are absent in the immigration system. See e.g., 8 U.S.C. § 1226(c)

7

(no right to pre-trial release on bail or bond); 8 U.S.C. § 1229a(b)(4)(A) (no right

8

to an attorney at the government’s expense in removal proceedings); Dkt. No. 484,

9

AF 5-7; Dkt. No. 264 at 2-3 (no judge or neutral arbiter ever reviews an ICE

official’s probable cause determination to issue a detainer or make an arrest).

10

10. Given the lack of additional safeguards in the immigration context, the initial

11

process ICE officials utilize to make arrests and issue detainers must be

12

sufficiently supported by lawful authority and probable cause.

13 ICE Violates the Fourth Amendment by Issuing Detainers through State and

14 Local Officers Who Lack Authority to Make Civil Immigration Arrests

15

11. The Court first considers whether ICE violates the Fourth Amendment by

16

issuing detainers through state and local law enforcement agencies that

17

independently lack the authority to issue immigration detainers.

18

12. State and local law enforcement “generally lack authority to arrest

19

individuals suspected of civil immigration violations.” Santos v. Frederick Cnty.

20

Bd. of Com’rs, 725 F.3d 451, 465 (4th Cir. 2013)

21

13. While “federal law does not preclude local enforcement of the criminal

22

provisions” of federal immigration law, Gonzalez v. City of Peoria, 722 F.2d 468,

23

475 (9th Cir. 1983), overruled on other grounds by Hodgers-Durgin v. de la Vina,

24

199 F.3d 1037 (9th Cir. 1999), the Immigration and Nationality Act (“INA”)

25

expressly entrusts the enforcement of civil immigration law to federal agents and

26

officers. Arizona v. United States, 567 U.S. 387, 408 (2012).

27

14. Thus, where state officers may perform the functions of immigration law,

28

federal law makes clear those circumstances. Id. (“Federal law specifies limited

28.

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1

circumstances in which state officers may perform the functions of an immigration

2

officer.” ).

3

15. A number of statutes highlight the scope of authority federal law generally

4

grants to state and local governments. See 8 U.S.C. § 1357(g)(1) (granting

5

immigration enforcement authority to state or local government officials in a

6

formal agreement with a state or local government.); 8 U.S.C. § 1103(a)(10)

7

(authority may be extended in the event of an “imminent mass influx of aliens

8

arriving off the coast of the United States).

9

16. Case law also suggests that state and local law enforcement agencies must

consent to the delegation of federal immigration functions. See Michigan v.

10

DeFillippo, 443 U.S. 31, 36 (1979) (“Whether an officer is authorized to make an

11

arrest ordinarily depends, in the first instance, on state law.”).

12

17. This is true even when it comes to arrests for federal offenses. See Ker v.

13

State of Cal., 374 U.S. 23, 37 (1963) (“This Court, in cases under the Fourth

14

Amendment, [has] long recognized that the lawfulness of arrests for federal

15

offenses is to be determined by reference to state law insofar as it is not violative

16

of the Federal Constitution.”); Gonzales v. City of Peoria, 722 F.2d at 475

17

(assessing lawfulness of arrest by local police for unlawful entry in violation of 8

18

U.S.C. § 1325 by first concluding federal law permitted the arrest and then asking

19

“whether state law grants Peoria police the affirmative authority to make [the]

20

arrest[]”); see also Santos v. Frederick Cnty. Bd. of Com’rs, 725 F.3d 451, 464 (4th

21

Cir. 2013) (“[l]ocal law enforcement officials may detain or arrest an individual for

22

criminal violations of federal immigration law without running afoul of the Fourth

23

Amendment, so long as the seizure is supported by reasonable suspicion or

24

probable cause and is authorized by state law.”)

25

18. A fundamental tenet of federalism requires states to determine the powers

26

and responsibilities of their own officers and any attempt to subvert states’ control

27

over their law enforcement runs afoul of the Tenth Amendment. Cf Printz v.

28

United States, 521 U.S. 898, 922, 928-32 (1997) (holding the Tenth Amendment

29.

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1

prevents the federal government from “impress[ing] into its service—at no cost to

2

itself—the police officers of the 50 States”).

3

19. Thus, even where federal law permits state or local officers to make civil

4

immigration arrests, the authority for such arrests must come from state law. See

5

8. U.S.C. § 1357(g)(1) (permitting federal-state agreements authorizing state and

6

local officials to perform immigration enforcement functions, but only “to the

7

extent consistent with State and local law.”); 8 U.S.C. § 1252c(a) (permitting arrest

8

“to the extent permitted by relevant State and local law”).

9

20. ICE concedes that a detainer itself does not provide the legal authority for a

state or local officer to make a civil immigration arrest. See Dkt. No. 297-1 ¶ 162

10

(“[T]he detainer does not authorize, but merely requests, action by the LEA); see

11

also Dkt. No. 481-9 (ICE 30(b)(6) Rapp Dep. Tr. 134:23-135:24) (explaining that

12

it “would be up to the individual LEA to determine what authority or right they

13

have to hold an individual [on an immigration detainer] beyond the completion of

14

their [] criminal process.”).

15

21. ICE is liable for the arrests other law enforcement agencies make on

16

immigration detainers, including arrests made by state and local entities that have

17

no authority to make arrests on detainers. Dkt. No. 42 at 8.

18

22. For the foregoing reasons, the Court determines that ICE violates the Fourth

19

Amendment by issuing detainers to state and local law enforcement agencies in

20

states that do not expressly authorize civil immigration arrests in state statute.

21

Accordingly, the Court enters judgment for Plaintiffs on that claim.

22 ICE’s Issuance of Detainers Through the Reliance on Inaccurate, Incomplete,

23 and Error-Filled Databases Violates the Fourth Amendment

24

1. Next, the Court considers whether the databases ICE relies on to issue its

25

detainers are reliable sources of information for establishing probable cause.

26

2. This claim is brought on behalf of the Probable Cause Subclass, which is

27

comprised of all current and future persons who are subject to an immigration

28

30.

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1

detainer issued by an ICE agent located in the Central District of California, where

2

the detainer is not based upon a final order of removal signed by an immigration

3

judge, or the individual is not subject to ongoing removal proceedings and the

4

detainer was issued solely on the basis of electronic database checks. See Dkt. No.

5

484 at 1-2.

6

3. As discussed above, database sources must be reliable to satisfy the Fourth

7

Amendment. See e.g., Arizona v. Evans, 514 U.S. 1, 17 (1995) (O’Connor, J.

8

concurring); see also United States v. Esquivel-Rios, 725 F.3d 1231, 1238 (10th

9

Cir. 2013) (Gorsuch, J.) (holding, “in a case that hinges entirely on the reliability

of a computer database, the district court overlooked” testimony “casting doubt on

10

its reliability”).

11

4. Courts consider a number of factors when determining whether a database is

12

reliable.

13

5. First, courts look to whether a database contains the complete set of pertinent

14

information; that is, whether it lacks certain material information. A database that

15

is incomplete in a manner that necessarily produces erroneous arrests is not a

16

database that can be reasonably relied upon by officers. See Smith v. Oklahoma

17

City, 696 F.2d 784, 787 (10th Cir. 1983) (finding a violation of the Fourth

18

Amendment because an arrest warrant relied on a computer database that did not

19

provide the necessary information to issue such warrants); see also Morales v.

20

Chadbourne, 235 F. Supp. 3d 388, 401 (D.R.I. 2017), appeal dismissed, No. 17-

21

1300, 2017 WL 4574440 (1st Cir. May 24, 2017) (“A database search is only

22

successful and its results are only reliable under a probable cause analysis if the

23

information contained in the database is complete and if the search is thorough and

24

based on available identifies.”)

25

6. In a case addressing the issue, the Ninth Circuit determined that the Immigrant

26

Index System database, which included records limited in time, did not contain

27

records predating 1983, and excluded “millions of people who are legitimately

28

31.

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1

present in the United States,” did not provide sufficient cause for the search.

2

Orhorhaghe v. I.N.S., 38 F.3d 488, 493 (9th Cir. 1994).

3

7. Courts also consider the error rates and inaccuracies within a database to

4

determine their reliability. See People v. Jones, 443 N.Y.S.2d 298, 304 (N.Y. City

5

Crim. Ct. 1981) (granting suppression in case where officers estimated an

6

inaccuracy rate of a computer generated alarm system “as high as twenty percent,

7

an inaccuracy rate that is unquestionably substantial.”).

8

8. For example, courts have identified Fourth Amendment concerns where

9

underlying information was not up-to-date or the database provided static

information regarding a fact that can change over time. See e.g., United States v.

10

Beltran Vivanco, No. CR 14-840 RB, 2014 WL 12789017, at *5 (D.N.M. Aug. 13,

11

2014) (finding Fourth Amendment violation where officer “relied on a database

12

that suffered from a fatal flaw,” specifically that the database “utilized static

13

insurance information to make the dynamic assessment of whether a vehicle is

14

currently insured”).

15

9. Finally, in determining whether a database is reliable for the purposes of

16

probable cause, courts consider whether the databases were intended to supply

17

probable cause for an arrest and whether attendant safeguards are in place to ensure

18

accuracy and completeness. See Millender v. Cnty. of Los Angeles, 620 F.3d 1016,

19

1029 n.7 (9th Cir. 2010) (disregarding information gathered on CALGANG

20

database for purpose of determining probable cause for search warrant for firearms

21

because the database “is not designed to provide users with information upon

22

which official action may be taken” and “cannot be used to provide probable cause

23

for an arrest”), rev’d on other grounds sub nom. Messerschmidt v. Millender, 132

24

S.Ct. 1235 (2012).

25

10. The evidence presented at trial establishes that ICE violates the Fourth

26

Amendment by relying on an unreliable set of databases to make probable cause

27

determinations for its detainers. The flaws that exist in the databases are precisely

28

those flaws courts have deemed fatal: (1) the databases provide static, often

32.

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1

outdated, information about dynamic facts; (2) the databases are incomplete, often

2

missing crucial pieces of information otherwise necessary for making probable

3

cause determinations; and (3) the databases were never intended to be used to

4

make probable cause determinations in the immigration context.

5

11. While ICE relies on several different databases in an attempt to compile

6

enough information on a subject and make an adequate probable cause

7

determination, the databases used by ICE, which have their limitations detailed

8

herein—standing alone without any additional checks—do not sufficiently

9

establish probable cause of removal. A number of factors guide the Court’s

reasoning.

10

12. First, information stored in the multiple databases ICE searches is often static

11

and outdated. Citizenship and immigration status are complex inquiries that

12

sometimes require information that cannot be obtained through databases that do

13

not receive constant updates or real-time information about a subject. See People

14

v. Joseph, 470 N.E.2d 1303, 1306 (Ill. App. Ct. 1984) (“When . . . computerized

15

records are not kept up to date, a citizen may be subject to a deprivation of his

16

liberty without any legal basis.”).

17

13. ICE’s reliance on static databases to assess citizenship and immigration status

18

and determine whether an individual should remain in the custody of law

19

enforcement agencies beyond their sentence is similarly unreasonable.

20

14. None of the databases on which ICE depends necessarily reflect a person’s

21

immigration status at the time when a detainer is set to be issued. This is because

22

those databases reflect a person’s immigration status at a particular point in time,

23

but fail to reliably show how or whether that status has changed over time.

24

15. For example, the databases do not interact with one another in an effort to

25

cross-reference or check the accuracy of the information entered.

26

16. CIS—the central database ICE relies upon in its determination of immigration

27

status—provides no information on derivative citizenship. CIS regularly reports

28

incorrect information about derivative citizens. See Trial Tr. 258:4-14, 261:12-15

33.

Case 2:12-cv-09012-AB-FFM Document 548 Filed 09/27/19 Page 34 of 37 Page ID #:20218

1

(Stock). The result is a potential misclassification of “[t]housands and thousands

2

of people, potentially even millions” given the various requirements for derivation

3

of citizenship, their dynamism, and the failure of immigration officials to

4

adequately or properly track those changes in status. Trial Tr. 274:19-275:10

5

(Stock). The result, of course, is that many U.S. citizens become exposed to

6

possible false arrest when ICE relies solely on deficient databases.

7

17. Further, CIS “frequently” shows naturalized citizens as green card holders or

8

fails to reflect an extension of a non-immigrant’s period of stay. Trial Exs. 14-15.

9

18. The other databases on which ICE relies suffer similar flaws. At best, the

databases reflect a person’s immigration status at a particular point in the past,

10

but—independently and as a set—the databases fail to reliably show how or

11

whether that status has changed over time.

12

19. Further, the databases suffer from serious incompleteness, which impacts

13

ICE’s ability to rely on the databases in making probable cause determinations.

14

20. In Orhorhaghe, the Ninth Circuit considered a warrantless immigration arrest,

15

which relied upon a database that did not contain any information about a subject’s

16

entry into the United States. INS relied on the absence of information in the

17

database as an indication that the subject had illegitimately entered the United

18

States. The Ninth Circuit found that “the absence of any record of Orhorhaghe’s

19

entry into the United States from the INS computer system did not provide any

20

additional basis for suspecting that he was an illegal alien rather than a legal alien

21

or American citizen. INS agents would be unable to locate any entry records for

22

literally millions of people who are legitimately present in the United States. Most

23

obviously, there would be no occasion to record the entry of native-born American

24

citizens . . . [.]” 38 F.3d at 498; see also Duckett v. United States, 886 A.2d 548,

25

549-550, 552 n.8 (D.C. 2005) (finding that the reliance on a lack of vehicle

26

registration information in a law enforcement database that downloaded DMV

27

records on a weekly basis did not provide reasonable grounds for a stop, since a

28

34.

Case 2:12-cv-09012-AB-FFM Document 548 Filed 09/27/19 Page 35 of 37 Page ID #:20219

1

lack of registration information could mean either that the car was not registered or

2

that it had been registered less than a week previously.)

3

21. These cases demonstrate that relying on the absence of information in a

4

database known for being incomplete is unreasonable. Whether the database lacks

5

historical records, Orhorhaghe, 38 F.3d at 498-99; categorically excludes certain

6

kinds of information, Esquivel-Rios, 725 F.3d at 1236; or is outdated or has delays

7

in its updating of information, Duckett, 886 A.2d at 552 n.8; databases in such a

8

state cannot be relied upon for probable cause determinations.

9

22. In addition, the core databases ICE relies on suffer from structural flaws,

incompleteness, and pervasive errors that render the databases unreliable.

10

23. Evidence before the Court has shown that the set of databases ICE checks, and

11

the information stored therein, contain serious errors.

12

24. Testimony before the Court, from practitioners familiar with each of the

13

databases suggests errors were common, and often anticipated in each of the

14

databases. Communications between an ICE senior officer and ICE Headquarters

15

indicates that the misclassification of U.S. citizens as LPRs was a frequent

16

occurrence. Dkt. No. 484, SF 108; Trial Ex. 15.

17

25. Finally, and perhaps most tellingly, the databases ICE uses are unreliable

18

because no single database used was intended to provide any indication of

19

probable cause of removability.

20

26. Immigration and citizenship law are complex and require a taxing

21

examination of a person’s history—the databases ICE uses were not created to

22

track those complexities. The evidence before the Court shows ICE relies on the

23

databases to cobble together information from disparate systems that are not at all

24

intended to establish probable cause of removal.

25

27. The use of information stored on the databases here deviates from the purpose

26

for which those databases were designed—accordingly, the use must be examined

27

with careful scrutiny. See, e.g., Beltran-Vivanco, 2014 WL 12789017 at * 7

28

(noting that the database relied on by the officer “was not designed to provide a

35.

Case 2:12-cv-09012-AB-FFM Document 548 Filed 09/27/19 Page 36 of 37 Page ID #:20220

1

dynamic record of a vehicle’s current insurance status” and finding a Fourth

2

Amendment violation).

3 Plaintiffs Meet the Requirements for Injunctive Relief

4

28. “[A] plaintiff seeking a permanent injunction . . . must demonstrate: (1) that it

5

has suffered an irreparable injury; (2) that remedies available at law, such as

6

monetary damages, are inadequate to compensate for that injury; (3) that,

7

considering the balance of hardships between the plaintiff and defendant, a remedy

8

in equity is warranted; and (4) that the public interest would not be disserved by a

9

permanent injunction.” Monsanto Co. v. Geertson Seed Farms, 561 U.S. 139, 156-

57 (2010).

10

29. “It is well established that the deprivation of constitutional rights

11

unquestionably constitutes irreparable injury.’” Melendres v. Arpaio (9th Cir.

12

2012), 695 F.3d at 1002 (quoting Elrod v. Burns, 427 U.S. 347, 373 (1976)). The

13

Ninth Circuit has repeatedly “upheld injunctions against pervasive violations of the

14

Fourth Amendment” like those present here. See e.g., Easyriders Freedom

15

F.I.G.H.T. v. Hannigan, 92 F.3d 1486, 1501 (9th Cir. 1996).

16

30. The class members here face days of unconstitutional imprisonment as a result

17

of immigration detainers. Such injury is not adequately compensated by monetary

18

damages. Nelson v. Nat’l Aeronautics & Space Admin., 530 F.3d 865, 882 (9th

19

Cir. 2008) (“Unlike monetary injuries, constitutional violations cannot be

20

adequately remedied through damages and therefore generally constitute

21

irreparable harm.”), rev’d and remanded on other grounds, 562 U.S. 134 (2011).

22

31. The balance of hardships favors Plaintiffs as Defendants “cannot reasonably

23

assert that [they are] harmed in any legally cognizable sense by being enjoined

24

from constitutional violations.” Zepeda v. INS, 753 F.2d 719, 727 (9th Cir. 1983).

25

The injunction Plaintiffs request encompasses only what is necessary to remedy the

26

Fourth Amendment violations. It leaves numerous feasible avenues for ICE to

27

investigate and effectively enforce immigration law.

28

36.

Case 2:12-cv-09012-AB-FFM Document 548 Filed 09/27/19 Page 37 of 37 Page ID #:20221

1

32. Finally, “it is always in the public interest to prevent the violation of a party’s

2

constitutional rights.” Melendres, 695 F.3d at 1002. Plaintiffs only seek for

3

Defendants to adhere to their constitutional mandate and cease issuing unlawful

4

detainers that result in unlawful imprisonment.

5

33. For the foregoing reasons, concurrently with adopting the above findings of

6

facts and conclusions of law, the Court shall issue a permanent injunction

7

enjoining ICE from issuing detainers to state and local law enforcement agencies

8

in states where there is no explicit state statute authorizing civil immigration

9

arrests on detainers and enjoining ICE from issuing detainers to Probable Cause

Subclass members based solely on database searches that rely upon information 10

from sources that lack sufficient indicia of reliability for a probable cause

11

determination for removal.

12

Plaintiffs shall submit a Proposed Judgment within 14 days of the issuance of this 13

order. 14

15 IT IS SO ORDERED. 16

17

18 Dated: September 27, 2019 19 20 21

_______________________________________ HONORABLE ANDRÉ BIROTTE JR. UNITED STATES DISTRICT COURT JUDGE

22

23

24

25

26

27

28

37.

 
 FOR PUBLICATION
UNITED STATES COURT OF APPEALS FOR THE NINTH CIRCUIT

GERARDO GONZALEZ; SIMON CHINIVIZYAN,
Plaintiffs-Appellees/ Cross-Appellants,
v.
UNITED STATES IMMIGRATION AND CUSTOMS ENFORCEMENT; DAVID MARIN; DAVID C. PALMATIER; THOMAS WINKOWSKI,
Defendants-Appellants/ Cross-Appellees.∗

Nos. 20-55175 20-55252
D.C. Nos. 2:12-cv-09012-
AB-FFM 2:13-cv-04416-
AB-FFM
OPINION

Appeal from the United States District Court for the Central District of California
André Birotte, Jr., District Judge, Presiding
Argued and Submitted July 13, 2020 Pasadena, California
∗ The United States Department of Homeland Security (DHS) identified itself as a party to these cross appeals. Although DHS objected to a subpoena in the district court, it was not, however, a defendant in the underlying case. Although Defendant United States Immigration and Customs Enforcement (ICE) is a component of DHS, DHS did not move to intervene in the district court nor in these cross appeals, and thus it is not technically a party. Accordingly, we amend the case caption to remove DHS as a Defendant-Appellant/Cross-Appellee.

2

GONZALEZ V. USICE

Filed September 11, 2020

Before: MILAN D. SMITH, JR., JOHN B. OWENS, and BRIDGET S. BADE, Circuit Judges.

Opinion by Judge Milan D. Smith Jr.; Dissent by Judge Bade

SUMMARY**

Immigration
In a class action in which the district court issued two permanent injunctions enjoining the issuance of certain immigration detainers in light of Fourth Amendment challenges, the panel: (1) affirmed the district court’s certification of a subclass, (2) reversed and vacated one injunction, (3) reversed and vacated the other injunction, and remanded for the district court to reconsider the claim related to that injunction, and (4) reversed and vacated summary judgment for the Government on a claim related to another subclass, and remanded for the district court to reconsider that claim.
Gerardo Gonzalez is a citizen of the United States who has never been removable. After he was arrested on state law criminal charges, however, an Immigration and Customs Enforcement (ICE) agent ran his name through electronic databases and determined that he was removable. The
** This summary constitutes no part of the opinion of the court. It has been prepared by court staff for the convenience of the reader.

GONZALEZ V. USICE

3

officer issued an immigration detainer, a form by which the Department of Homeland Security (DHS) requests, in relevant part, that a federal, state, or local law enforcement agency (LEA) temporarily detain an alien in that agency’s custody “for a period not to exceed 48 hours, excluding Saturdays, Sundays, and holidays in order to permit assumption of custody by [DHS].” 8 C.F.R. § 287.7.

Gonzalez represents three certified classes that include all current and future individuals who are subject to an immigration detainer issued by an ICE agent located in the Central District of California, excluding individuals with final orders of removal or who are subject to ongoing removal proceedings. The Probable Cause Subclass is further limited to persons where the detainer was issued solely on the basis of electronic database checks. The district court entered two injunctions with respect to the Probable Cause Subclass: the State Authority Injunction and the Database Injunction. The district court also granted summary judgment to the Government on a claim brought by the Judicial Determination Class. A motions panel of this court stayed the State Authority Injunction and denied the request to stay the Database Injunction.

First, the panel held that Gonzalez had Article III standing to seek prospective injunctive relief, concluding that he faced an ongoing and prospective detention injury when he commenced suit. The panel also concluded that the Government’s cancellation of the detainer within hours of Gonzalez bringing suit did not moot his claims, citing the “inherently transitory” exception to mootness.

Second, the panel affirmed the certification of the Probable Cause Subclass with Gonzalez as the class representative. The panel concluded that the subclass

4

GONZALEZ V. USICE

satisfied the commonality requirement, explaining that the challenged policy of issuing detainers solely on the basis of electronic database checks is the “glue” that holds the class together. The panel also concluded that the subclass satisfied the typicality requirement. The panel rejected the Government’s contention that Gonzalez, as a U.S. citizen, is atypical of noncitizen class members over whose claims the district court lacked subject matter jurisdiction under 8 U.S.C. § 1252(b)(9), which limits review of claims arising from removal proceedings. Assuming the relevance of jurisdiction over the unnamed noncitizen class members, the panel concluded that § 1252(b)(9) does not bar jurisdiction over the claims here because the claims challenge the legality of detention and are independent of the removal process. The panel also concluded that a determination about the lawfulness of the challenged policy under the Fourth Amendment and corresponding relief would provide relief to the entire class.

Third, the panel held that injunctive relief in this case is not barred by 8 U.S.C. § 1252(f)(1), which provides that “no court (other than the Supreme Court) shall have jurisdiction or authority to enjoin or restrain the operation of the provisions of part IV of this subchapter, as amended . . . .” The panel explained that § 1252(f)(1) does not bar injunctive relief for the claims in this case because the only provision of the Immigration and Nationality Act (INA) whose text even refers to immigration detainers, 8 U.S.C. § 1357(d), is not located in “Part IV” and therefore is not among the provisions that § 1252(f)(1) encompasses. The panel also rejected the Government’s argument that its detainer authority is implied by provisions covered by § 1252(f)(1), explaining that it must assume that Congress acted intentionally, and that the detainers here do not directly

GONZALEZ V. USICE

5

implicate the authority of the provisions cited by the Government.

Fourth, the panel reversed and vacated the State Authority Injunction, which enjoins the Government from issuing detainers from the Central District to LEAs in states that lack state law permitting state and local LEAs to make civil immigration arrests based on civil immigration detainers. The panel explained that the presence or absence of probable cause determines whether the Government violates the Fourth Amendment when issuing a detainer, not state law restrictions. In so holding, the panel underscored that it did not decide here whether immigration detainers might violate principles of federalism or preemption, noting that Plaintiffs had waived such claims.

Fifth, the panel reversed and vacated the Database Injunction, which enjoins the Government from issuing detainers to class members based solely on searches of electronic databases to make probable cause determinations of removability. The panel concluded that three errors required reversal: (1) the district court’s incomplete set of reliability findings concerning the databases at issue; (2) the district court’s legal error in concluding that the databases are unreliable because no database was intended to show probable cause of removability; and (3) the district court’s failure to address whether there was systemic error in ICE’s probable cause determinations based on searches of the databases. The panel remanded for the district court to reconsider the claim.

Finally, the panel reversed the summary judgment for the Government on Plaintiffs’ claim pursuant to Gerstein v. Pugh, 420 U.S. 103 (1975), in which the Supreme Court explained that the Fourth Amendment requires that probable

6

GONZALEZ V. USICE

cause be timely decided by a neutral and detached magistrate whenever possible. The Gerstein claim was brought by the Judicial Determination Class, which was defined, in relevant part, to include those individuals detained pursuant to a detainer for longer than 48 hours. Explaining that the district court erred in concluding that Gerstein does not apply in the civil immigration context, the panel concluded that, because the Fourth Amendment requires probable cause to seize or detain an individual for a civil immigration offense, it follows that the Fourth Amendment requires a prompt probable cause determination by a neutral and detached magistrate to justify continued detention pursuant to an immigration detainer. Therefore, the court remanded for the district court to apply the correct legal standard.

Dissenting, Judge Bade wrote that Congress enacted a clear jurisdictional bar to injunctive relief in § 1252(f)(1) and that the majority erred in holding that § 1252(f)(1) does not bar injunctive relief in this case. Judge Bade found the majority’s approach flawed for two reasons: the majority (1) ignored the plain language of the statute, and (2) erroneously concluded that § 1357(d) is the sole source of ICE’s authority to issue detainers. Judge Bade wrote that the majority’s approach opens the door to sweeping challenges to basic tools of immigration enforcement.

COUNSEL
Erez Reuveni (argued), Assistant Director; Francesca Genova and Archith Ramkumar, Trial Attorneys; Lauren C. Bingham, Senior Litigation Counsel; William C. Peachey, Director, District Court Section; Scott G. Stewart, Deputy Assistant Attorney General; Joseph H. Hunt, Assistant Attorney General; Office of Immigration Litigation, Civil

GONZALEZ V. USICE

7

Division, United States Department of Justice, Washington, D.C.; for Objector-Appellant.

Jennifer Pasquarella (argued), Jessica Karp Bansal (argued), and Zoe McKinney, ACLU Foundation of Southern California, Los Angeles, California; Barrett S. Litt and Lindsay B. Battles, Kaye McLane Bednarski & Litt, Pasadena, California; Spencer E. Amdur and Cody Wofsy, ACLU Foundation Immigrants’ Rights Project, San Francisco, California; Omar C. Jadwat, ACLU Foundation Immigrants’ Rights Project, New York, New York; Mark M. Fleming and Ruben Loyo, National Immigrant Justice Center, Chicago, Illinois; for Plaintiffs-Appellees/CrossAppellants.

Christopher J. Hajec, Immigration Reform Law Institute, Washington, D.C., for Amicus Curiae Immigration Reform Law Institute.

Saira Hussain and Jennifer Lynch, Electronic Frontier Foundation, San Francisco, California, for Amicus Curiae Electronic Frontier Foundation.

Brook Dooley and Andrew S. Bruns, Keker Van Nest Peters LLP, San Francisco, California; Ilya Shapiro, Cato Institute, Washington, D.C.; for Amicus Curiae Cato Institute.

Susan M. Krumplitsch, DLA Piper LLP (US), East Palo Alto, California; Alexis Burgess, DLA Piper LLP (US), Los Angeles, California; for Amici Curiae National Immigration Project of the National Lawyers Guild; Immigrant Legal Resource Center; University Of Nevada, Las Vegas Immigration Clinic; National Association of Criminal Defense Lawyers; Washington Defender Association;

8

GONZALEZ V. USICE

Brooklyn Defender Services; Bronx Defenders; and Immigrant Defense Project.

Anne Lai, University of California, Irvine School of Law, Irvine, California, for Amici Curiae Law and History Professors.

Michael Shipley, Jonathan Faria, and Eric Sefton, Kirkland Ellis LLP, Los Angeles, California; Katherine Evans, Christine Mullen, Zachary Pollack, and Amanda Ng, Duke Immigrant Rights Clinic, Duke University School of Law; for Amici Curiae Organizations That Represent Individuals Subject to Civil Arrest.

OPINION
M. SMITH, Circuit Judge:
Gerardo Gonzalez is a United States citizen. He has never been removable from the United States. The United States Immigration and Customs Enforcement (ICE), however, came to a different conclusion in December 2012. After Gonzalez was booked on state law criminal charges by the Los Angeles Police Department (LAPD), an ICE agent ran his name through electronic databases, an automated procedure that ICE uses to determine whether an individual is a removable noncitizen. Because one database flagged Gonzalez’s birthplace as being in Mexico, and the agent could not find records showing that Gonzalez had lawfully entered the United States, the agent determined that Gonzalez was removable from the United States. ICE issued an immigration detainer, requesting that the Los Angeles Sheriff’s Department (LASD) detain Gonzalez for up to an additional five days in the Los Angeles County Jail after

GONZALEZ V. USICE

9

when he was entitled to release from custody on state criminal charges so that ICE could take him into its custody. While the detainer remained pending, Gonzalez brought this suit against the Government1, raising Fourth Amendment, Fifth Amendment, and statutory claims to challenge the legality of the detainer.
Gonzalez represents three certified classes which are defined to include, in relevant part, all current and future individuals who are subject to an immigration detainer issued by an ICE agent located in the Central District of California, excluding individuals with final orders of removal or who are subject to ongoing removal proceedings. The district court entered a judgment and two permanent injunctions in favor of Gonzalez and the Probable Cause Subclass on Fourth Amendment claims following a sevenday bench trial. The State Authority Injunction enjoins the Government from issuing detainers from the Central District to law enforcement agencies (LEAs) in states that lack state law permitting state and local LEAs to make civil immigration arrests based on civil immigration detainers. The Database Injunction enjoins the Government from issuing detainers to class members based solely on searches of electronic databases to make probable cause determinations of removability. The Government appeals the injunctions, and Plaintiffs cross appeal a summary judgment ruling in the Government’s favor.
We resolve several issues in this opinion. First, we hold that Gonzalez had Article III standing to seek prospective injunctive relief when he commenced suit. The

1 We refer to the Defendants as “the Government.” An uncapitalized reference to the “government” should not be construed as a specific reference to the Defendants.

10

GONZALEZ V. USICE

Government’s cancellation of the detainer against him does not alter that conclusion. Second, we hold that the district court did not abuse its discretion in certifying the Probable Cause Subclass pursuant to Rule 23(b)(2) with Gonzalez as the class representative. Third, we hold that 8 U.S.C. § 1252(f)(1) does not bar injunctive relief for the claims in this case because the only provision of the Immigration and Nationality Act (INA) whose text even refers to immigration detainers is not among the provisions that § 1252(f)(1) encompasses. Fourth, we reverse and vacate the State Authority Injunction because the presence or absence of probable cause determines whether the Government violates the Fourth Amendment when issuing a detainer, not state law restrictions. In so holding, we underscore that we do not decide here whether immigration detainers might violate principles of federalism or preemption. Fifth, we reverse and vacate the Database Injunction because it is premised on legal error and lacks critical factual findings. Notably, the district court failed to assess error in the system of databases on which ICE relies to make probable cause determinations of removability. Finally, we reverse the summary judgment for the Government on Plaintiffs’ claim pursuant to Gerstein v. Pugh, 420 U.S. 103 (1975) (the Gerstein claim). Because the Fourth Amendment requires probable cause to seize or detain an individual for a civil immigration offense, it follows that the Fourth Amendment requires a prompt probable cause determination by a neutral and detached magistrate to justify continued detention pursuant to an immigration detainer. Thus, we affirm in part, reverse in part, and remand.

GONZALEZ V. USICE

11

FACTUAL AND PROCEDURAL BACKGROUND
I. The Use of Immigration Detainers
References to immigration detainers and immigration holds on persons in state or federal criminal custody can be found as early as the 1940s. See Chung Young Chew v. Boyd, 309 F.2d 857, 865 (9th Cir. 1962); Slavik v. Miller, 89 F. Supp. 575, 576 (W.D. Pa. 1950), aff’d, 184 F.2d 575 (3d Cir. 1950); Ex parte Korner, 123 P.2d 111, 112 (Cal. Ct. App. 1942).
Congress, however, first codified the authority to issue immigration detainers in 1986 as a provision of the INA. See Anti-Drug Abuse Act of 1986, Pub. L. No. 99-570, 100 Stat. 3207–48, § 1751(d) (1986) (codified at 8 U.S.C. § 1357(d)). Section 1357(d) authorizes the issuance of detainers to federal, state, or local LEAs for individuals suspected of being aliens and who are arrested for violating any law relating to a controlled substance offense.2 The provision

2 Section 1357(d), titled “detainer of aliens for violation of controlled substances laws,” provides in full that:
In the case of an alien who is arrested by a Federal, State, or local law enforcement official for a violation of any law relating to controlled substances, if the official (or another official)—
(1) has reason to believe that the alien may not have been lawfully admitted to the United States or otherwise is not lawfully present in the United States,
(2) expeditiously informs an appropriate officer or employee of the Service authorized and

12

GONZALEZ V. USICE

does not require that such an LEA actually detain an individual.
Although § 1357 is the only statutory provision that refers to immigration detainers and concerns only suspected aliens who are arrested for a controlled substance offense, the Department of Homeland Security (DHS) and ICE, one of its component agencies, use immigration detainers to enforce federal immigration law more generally. See 8 C.F.R. § 287.7 (titled “detainer provisions under section 287(d)(3) of the Act”). Pursuant to § 287.7, a detainer is a form by which DHS requests, in relevant part, that a federal, state, or local LEA temporarily detain an alien in that agency’s custody “for a period not to exceed 48 hours, excluding Saturdays, Sundays, and holidays in order to permit assumption of custody by [DHS].” Id. § 287.7(d).

designated by the Attorney General of the arrest and of facts concerning the status of the alien, and
(3) requests the Service to determine promptly whether or not to issue a detainer to detain the alien,
the officer or employee of the Service shall promptly determine whether or not to issue such a detainer. If such a detainer is issued and the alien is not otherwise detained by Federal, State, or local officials, the Attorney General shall effectively and expeditiously take custody of the alien.
8 U.S.C. § 1357(d).

GONZALEZ V. USICE

13

Form I-247A is the current immigration detainer form.3 Id. § 287.7(a). A detainer is not a warrant of any kind.

In 2008, DHS launched the Secure Communities program, which automated the issuance of immigration detainers. The program links DHS databases with the FBI’s nationwide fingerprint database, which receives fingerprints from state and local LEAs after bookings. All persons arrested in the United States by a LEA have their fingerprints and associated personal information automatically checked against DHS databases for immigration purposes. The issuance of detainers increased exponentially following automation. Whereas ICE issued roughly 600 detainers per month in FY 2005, monthly detainers exceeded 26,000 by the end of FY 2011.

Until December 2012, ICE issued detainers based only on the initiation of an investigation into whether an individual was removable. In 2017, ICE changed its detainer policy in response to litigation.4 Under its current policy, ICE issues a detainer in the case of an individual arrested for a criminal offense when “the officer has probable cause to believe that the subject is an alien who is removable from the United States.” Under the policy, a signed administrative arrest warrant issued pursuant to 8 U.S.C. §§ 1226 or 1231(a)—INA provisions concerning the Attorney

3A publicly available version of Form I-247A is available here: U.S. DEP’T OF HOMELAND SEC., U.S. Immigration & Customs Enf’t, Form I247A, https://www.ice.gov/sites/default/files/documents/Document/201 7/I-247A.pdf (last visited September 2, 2020).
4 See U.S. Immigration & Customs Enf’t, Policy No. 10074.2: Issuance of Immigration Detainers by ICE Immigration Officers, available at: https://www.ice.gov/sites/default/files/documents /Document/2017/10074-2.pdf (last visited September 2, 2020).

14

GONZALEZ V. USICE

General’s authority to perform arrests by warrant and detain certain aliens—must now accompany a detainer. This policy is not reflected in the detainer regulation. See 8 C.F.R. § 287.7.
Although in issuing an immigration detainer, ICE premises a probable cause determination of removability on any one of four grounds, this case concerns one procedure in particular: ICE’s use of biometric information to confirm an individual’s identity and a search of electronic databases to determine whether the individual lacks lawful immigration status or has such status but is removable.
II. The Issuance of Immigration Detainers from the Central District
The immigration detainers at issue in this case are primarily lodged by ICE agents at the Pacific Enforcement Response Center (PERC), located in Laguna Niguel, California. PERC issues detainers 24 hours a day for persons in federal, state, or local LEA custody in the Central District, and issues detainers after hours for individuals in such custody in some forty-two states and two U.S. territories. To issue these detainers, law enforcement specialists at the Law Enforcement Support Center (LESC) and analysts at PERC search multiple electronic databases to find “affirmative evidence of removability.” PERC agents do not investigate beyond database checks.
This process commences when a law enforcement officer arrests an individual. The individual’s fingerprints are automatically sent to the FBI and run against two databases, the Integrated Automatic Fingerprint Identification System (IAFS) and the Automated Biometric Identification System (IDENT). IDENT assigns a Fingerprint Identification Number (FIN) to each individual’s

GONZALEZ V. USICE

15

fingerprints. IDENT contains fingerprint data for certain U.S. citizens, including those who the FBI believes belong in the system, those who voluntarily enroll in certain trusted traveler programs, those who have applied to naturalize as U.S. citizens, and those who have filed applications for certificates of citizenship. IDENT contains over 237 million unique identities. IDENT captures all biometric and biographical information on an individual regardless of typographical errors. IDENT is a very accurate source of biometric matching.
If there is a fingerprint match in IDENT, an Immigrant Alien Query (IAQ) is automatically generated and sent to LESC. The Alien Criminal Response Information Management System (ACRIMe) automatically generates an Immigrant Alien Response (IAR), which PERC receives. To generate the IAR, ACRIMe automatically searches the NCIC (National Crime Information Center), NLETS (National Law Enforcement Telecommunications System), CIS (Central Index System), CLAIMS 3, CLAIMS 4, EID, IDENT, ADIS (Arrival and Departure System), SEVIS (Student and Exchange Visitor Information System), and EOIR (Executive Office for Immigration Review) databases to match the FIN to any other encounter with that individual. The IAR contains basic biographical information and criminal history as well as a short statement about immigration status and removability. An analyst, who is a federal contractor, conducts a first level review of the IAR and makes a recommendation to an ICE officer about whether a detainer should issue.5

5 Although the analyst has the discretion to run an independent database check, which is done in “complex cases,” we are unaware of

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This system has resulted in the issuance of thousands of detainers. For example, the Government estimates that it issued nearly 50,000 detainers from PERC in FY 2019. Trial evidence nevertheless indicated that ICE does not take into custody up to 80% of the individuals for whom PERC issues immigration detainers.
III. The District Court Proceedings
Gonzalez commenced this suit as a putative class action on June 19, 2013 to challenge the outstanding immigration detainer against him, which prevented him from posting bail from custody on state criminal charges, and which threatened an additional period of detention by LASD upon his release from that custody. Within hours after he commenced suit, the Government cancelled the detainer. Simon Chinivizyan, a native of Uzbekistan and a U.S. citizen, became a plaintiff upon the filing of the First Amended Complaint. When he filed suit, he was detained in the Los Angeles County Jail solely pursuant to the detainer.
The case proceeded on the Third Amended Complaint (TAC), filed in August 2014.6 In relevant part, Plaintiffs raised individual and class claims that the Government violates the Fourth Amendment (1) because a detainer is an unlawful seizure without probable cause or lawful authority,

any record evidence concerning the extent to which PERC has “complex cases” for which its analysts perform independent database checks.
6 In 2015, the district court consolidated this case with Roy v. County of Los Angeles, No. 12-cv-09012-BRO-FFM, Dkt. No. 91 (C.D. Cal. July 28, 2015). For this reason, several citations herein bear the Roy case caption. After the parties cross appealed, the district court deconsolidated the cases. Id. Dkt. No. 590 (C.D. Cal. Mar. 18, 2020).

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and (2) the Government fails to provide a prompt probable cause determination by a neutral and detached magistrate (the Gerstein claim). Plaintiffs sought declaratory and injunctive relief.
The district court certified two classes pursuant to Rule 23(b)(2) that are relevant here, the Judicial Determination Class and Probable Cause Subclass. Roy v. County of Los Angeles, Nos. CV 12-09012-BRO(FFMx), CV 13-04416BRO(FFMx), 2016 WL 5219468 (C.D. Cal. Sept. 9, 2016). The court certified the Judicial Determination Class with both Plaintiffs as representatives.7 Id. at *6, 21. The claims of this class concern the Gerstein claim. The court also certified the Probable Cause Subclass with Gonzalez as the representative. Id. at *6, 21. We discuss herein the amended class definition as well as the class claims decided at trial.
Plaintiffs later moved for summary judgment on the Judicial Determination Class’s Gerstein claim. The district court sua sponte granted summary judgment for the Government. Roy v. County of Los Angeles, Nos. CV 1209012-BRO(FFMx), CV 13-04416-BRO(FFMx), 2017 WL 2559616 (C.D. Cal. June 12, 2017). The court determined that Gerstein, including as elaborated in County of Riverside v. McLaughlin, 500 U.S. 44 (1991), did not “directly” apply to the immigration context because those cases arose in the criminal context. Id. at *5. Focusing on the civil immigration nature of this case, the court determined that it is not unconstitutional for Congress to delegate probable

7 The class consists of “[a]ll current and future persons who are subject to an immigration detainer issued by an ICE agent located in the Central District [ ], where the detainer is not based upon a final order of removal signed by an immigration judge or the individual is not subject to ongoing removal proceedings” and “who were detained for more than forty-eight hours.” Roy, 2016 WL 5219468, at *6, 14.

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cause determinations to executive officers, rather than an immigration judge, magistrate judge, or federal judge. Id. at *5–10. Thus, the claims of the Judicial Determination Class did not proceed beyond summary judgment.
Shortly before the May 2019 bench trial, the district court amended the Probable Cause Subclass definition as follows:
all current and future persons who are subject to an immigration detainer issued by an ICE agent located in the Central District [ ], where the detainer is not based upon a final order of removal signed by an immigration judge or the individual is not subject to ongoing removal proceedings and the detainer was issued solely on the basis of electronic database checks.

The court identified the class claims for trial as whether (1) the Government violates the Fourth Amendment by issuing immigration detainers to state and local LEAs in states that do not authorize such LEAs to enforce civil immigration law (the State Authority Claim) and (2) whether the databases that ICE uses to issue immigration detainers from the Central District are unreliable sources of information for probable cause determinations (the Database Claim).
Following trial, the court issued findings of fact and conclusions of law. Gonzalez v. Immigration & Customs Enf’t, 416 F. Supp. 3d 995 (C.D. Cal. 2019). On the State Authority Claim, the court concluded that ICE “violates the Fourth Amendment by issuing detainers to state and local law enforcement agencies in states that do not expressly authorize civil immigration arrests in state statute[.]” Id.

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at 1016. On the Database Claim, the court concluded that ICE violates the Fourth Amendment because it relies on “inaccurate, incomplete, and error-filled databases” to make probable cause determinations of removability for immigration detainers. Id. at 1016–20. The court determined that permanent classwide injunctive relief on both claims was appropriate. Id. at 1020. A formal judgment followed.
The Government timely appealed, sought an emergency stay of the injunctions, and requested that we expedite its appeal. A motions panel of our court stayed the State Authority Injunction, denied the request to stay the Database Injunction, and expedited the appeal. Plaintiffs timely cross appealed.
JURISDICTION AND STANDARDS OF REVIEW
We have jurisdiction over the final judgment pursuant to 28 U.S.C. § 1291. We also have jurisdiction over previously nonfinal orders that have merged with the judgment, including the summary judgment and class certification orders. Hall v. City of Los Angeles, 697 F.3d 1059, 1070–71 (9th Cir. 2012).
“We review for abuse of discretion the district court’s class certification rulings[.]” Senne v. Kan. City Royals Baseball Corp., 934 F.3d 918, 926 (9th Cir. 2019). “A district court abuses its discretion where it commits an error of law, relies on an improper factor, omits a substantial factor, or engages in a clear error of judgment in weighing the correct mix of factors.” Id. (citation omitted). We review the district court’s standing determinations and summary judgment rulings de novo. City of Sausalito v. O’Neill, 386 F.3d 1186, 1196–97 (9th Cir. 2004). We review the district court’s factual findings following a bench

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trial for clear error and its legal conclusions de novo. Fed. Trade Comm’n v. Garvey, 383 F.3d 891, 900 (9th Cir. 2004). Mixed questions of law and fact are reviewed de novo. Shea Homes, Inc. & Subsidiaries v. Comm’r of Internal Revenue, 834 F.3d 1061, 1066 (9th Cir. 2016).
“We review a district court’s decision to grant a permanent injunction for an abuse of discretion; the factual findings underpinning the award for clear error; and the rulings of law relied upon by the district court in awarding injunctive relief de novo.” In re Nat’l Collegiate Athletic Ass’n Athletic Grant-In-Aid Cap Antitrust Litig., 958 F.3d 1239, 1253 (9th Cir. 2020) (citation, internal quotation marks, and alteration omitted).
ANALYSIS
I. Gonzalez’s Standing for Prospective Injunctive Relief
The Government first argues that Gonzalez lacked standing to seek prospective injunctive relief, and thus could not represent the Probable Cause Subclass on whose behalf the district court issued the State Authority and Database Injunctions.8 This is a “threshold issue” concerning an “essential and unchanging part of the case-or-controversy requirement of Article III.” Horne v. Flores, 557 U.S. 433, 445 (2009) (quoting Lujan v. Defs. of Wildlife, 504 U.S. 555, 560 (1992)). The Government additionally argues that Gonzalez could not represent a class of individuals raising Fourth Amendment claims concerning detention pursuant to a detainer because a detainer is merely a request, and ICE

8 Chinivizyan is not a member of the Probable Cause Subclass. Thus, his standing is irrelevant to either injunction at issue on appeal.

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cancelled the detainer that it lodged against him within hours after he brought suit. This argument is plainly a disguised challenge to whether Gonzalez continued to have a personal stake in the outcome of this case. We reject both arguments.
A. Article III Standing
“[A]s in all standing inquiries, the critical question is whether [the plaintiff] has ‘alleged such a personal stake in the outcome of the controversy as to warrant his invocation of federal-court jurisdiction.’” Horne, 557 U.S. at 445 (quoting Summers v. Earth Island Inst., 555 U.S. 488, 493 (2009)) (emphasis in original). The plaintiff must demonstrate that: (1) he has suffered an “injury in fact” that is concrete, particularized, and actual or imminent, (2) the injury is “fairly traceable” to the defendant’s conduct, and (3) the injury can be “redressed by a favorable decision.” Lujan, 504 U.S. at 560–61 (alterations in original omitted). As is relevant here, “a plaintiff must demonstrate standing separately for each form of relief sought.” Friends of the Earth, Inc. v. Laidlaw Envtl. Servs. (TOC), Inc., 528 U.S. 167, 185 (2000). And “[w]hile the proof required to establish standing increases as the suit proceeds . . . the standing inquiry remains focused on whether the party invoking jurisdiction had the requisite stake in the outcome when the suit was filed.” Davis v. Fed. Election Comm’n, 554 U.S. 724, 734 (2008) (international citations omitted) (emphasis added). “Our threshold inquiry into standing ‘in no way depends on the merits of the [plaintiff’s] contention that particular conduct is illegal.’” Whitmore v. Arkansas, 495 U.S. 149, 155 (1990) (quoting Warth v. Seldin, 422 U.S. 490, 500 (1975)).
The parties’ arguments concern Gonzalez’s standing to seek prospective injunctive relief based on the pleadings, and thus that is our focus. See United States v. Sineneng-

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Smith, 140 S. Ct. 1575, 1579 (2020). “[W]hen a plaintiff files a complaint in federal court and then voluntarily amends the complaint, courts look to the amended complaint to determine jurisdiction.” Rockwell Int’l Corp. v. United States, 549 U.S. 457, 473–74 (2007). Although we “look to the amended complaint to determine jurisdiction,” id. at 474, “subject-matter jurisdiction depends on the state of things at the time of the action brought,” i.e., at the time the plaintiff commenced suit, id. at 473 (citation and internal quotation marks omitted). Thus, we assess Gonzalez’s standing for prospective injunctive relief as of the time when he commenced suit, relying on the allegations in the operative amended complaint. S. Utah Wilderness Alliance v. Palma, 707 F.3d 1143, 1153 (10th Cir. 2013). Because “[a] class of plaintiffs does not have standing to sue if the named plaintiff does not have standing,” B.C. v. Plumas Unified Sch. Dist., 192 F.3d 1260, 1264 (9th Cir. 1999), Gonzalez’s standing determines whether he could seek injunctive relief on behalf of any class in this case.
We conclude that the TAC shows that Gonzalez had standing to seek prospective injunctive relief when he commenced suit, and thus he could represent the class on whose behalf the district court entered the injunctions at issue here.
1. Injury
We turn first to gravamen of the parties’ dispute: whether Gonzalez suffered an injury sufficient to confer standing. Although a past injury does not provide standing to seek prospective injunctive relief “[a]bsent a sufficient likelihood that [the plaintiff] will again be wronged in a similar way,” City of Los Angeles v. Lyons, 461 U.S. 95, 111 (1983), the Government errs in arguing that Gonzalez faced a past injury when he brought suit.

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The operative TAC recounts that Gonzalez came into LASD custody on December 27, 2012. On December 31, 2012, ICE issued the immigration detainer against him. Although the detainer had no effect on Gonzalez’s custody when lodged due to a then-applicable parole hold, Gonzalez became eligible for release on bail from LASD custody on state criminal charges in May 2013 when the hold expired. He attempted to post bail with the assistance of his girlfriend, who went to a bondsman. The bondsman informed her that Gonzalez was subject to an immigration detainer. The detainer requested that LASD keep him in custody for up to five additional days after his release from custody on state criminal charges. The detainer, however, prevented him from posting bail. Even if he posted the $95,000 bail as he had intended to do, Gonzalez would remain in custody. Indeed, it was LASD policy to comply with all ICE detainers. Gonzalez did not post bail, but instead brought this suit.
We have explained that “[r]emaining confined in jail when one should otherwise be free is an Article III injury plain and simple[.]” Mendia v. Garcia, 768 F.3d 1009, 1012 (9th Cir. 2014). Gonzalez’s allegations demonstrate that Gonzalez faced an ongoing and a prospective detention injury when he commenced suit. He faced the ongoing injury of continued detention in LASD custody on the state criminal charges by virtue of the detainer that prevented him from posting bail although he was eligible to do so. He also faced the imminent injury of an additional period of detention in LASD custody solely by virtue of the detainer. Because LASD complied with all ICE detainers, the detainer posed a “real, immediate, and direct” threat of future harm of unlawful detention by LASD solely by virtue of the detainer upon his release from custody on state criminal charges. Davis, 554 U.S. at 734 (citing Lyons, 461 U.S.

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at 102); Mendia, 768 F.3d at 1012. We reject the Government’s arguments that neither of Gonzalez’s injuries was sufficient.
With respect to the ongoing injury, the Government argues that Gonzalez’s injury was “self-inflicted” because he chose to remain in state custody by not posting the $95,000 bail. The Government’s argument correctly observes that we have rejected a plaintiff’s choice to remain in state custody following release on recognizance as a “selfinflicted injury.” Id. at 1013 n.1. But the Government ignores our caveat that a plaintiff’s decision to remain in state custody does not defeat standing if it was “reasonably incurred to mitigate or avoid the future harm [the plaintiff] claimed to fear.” Id. (citation and internal quotation marks omitted). Gonzalez delayed posting bail to avoid the harm of additional detention. That harm was not speculative because, as ICE was aware, LASD complied with all immigration detainers when Gonzalez commenced suit.
Seeking to cast doubt on whether Gonzalez would have been detained pursuant to the detainer, the Government also argues that a detainer merely requests detention and is not a command that an LEA detain an individual.9 See Galarza v.

9 The Government frames this as a merits argument that Gonzalez never suffered a Fourth Amendment seizure pursuant to the immigration detainer and thus, he cannot represent a class of individuals who were detained pursuant to a detainer. The Government relies on our decision in Lierboe v. State Farm Mut. Auto. Ins. Co., 350 F.3d 1018 (9th Cir. 2003). But that decision concerned Article III standing. Id. at 1022 (“[O]ur law makes clear that ‘if none of the named plaintiffs purporting to represent a class establishes the requisite of a case or controversy with the defendants, none may seek relief on behalf of himself or any other member of the class.’” (quoting O’Shea v. Littleton, 414 U.S. 488, 494 (1974))); see also NEI Contracting & Eng’g, Inc. v. Hanson Aggregates

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Szalczyk, 745 F.3d 634, 640–46 (3d Cir. 2014). Even if an immigration detainer is a request, a detainer “results in the detention—or further detention—of an individual” when acted upon. Hernandez v. United States, 939 F.3d 191, 200 (2d Cir. 2019). The detainer against Gonzalez requested up to five additional days of detention. Gonzalez alleged that LASD had a policy of complying with all detainers. Thus, he did not need to wait for that detention to challenge its legality. See Davis, 554 U.S. at 734 (“[T]he injury required for standing to sue need not be actualized. A party facing prospective injury has standing to sue where the threatened injury is real, immediate, and direct.”); Cent. Delta Water Agency v. United States, 306 F.3d 938, 948 (9th Cir. 2002).
Finally, the Government focuses on Gonzalez’s allegations that “he could be taken into ICE’s physical custody and detained for 2 more days, and perhaps longer,” to argue that Gonzalez faced a speculative injury that could not support standing for prospective injunctive relief. But, like the district court did10, the Government conflates two

Pac. Sw., Inc., 926 F.3d 528, 532 (9th Cir. 2019) (confirming that Lierboe concerned Article III standing). There, the plaintiff sued on the theory that she had a stacking claim pursuant to Montana law. Lierboe, 350 F.3d at 1020. Because state law may create a right whose violation may support constitutional standing, see In re Facebook, Inc. Internet Tracking Litig., 956 F.3d 589, 600 (9th Cir. 2020), our inquiry necessarily focused on whether the plaintiff actually had any such right under state law, see Lierboe, 350 F.3d at 1022–23. Here, however, we need look no further than Gonzalez’s ongoing and prospective detention injuries when he commenced suit to conclude that he had standing. The merits of any Fourth Amendment claim concerning that detention do not alter our standing analysis.
10 We briefly dispose of the Government’s assertion that the district court violated the law of the case doctrine by granting injunctive relief following trial while failing to reconsider its earlier determination that

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distinct prospective detention injuries: (1) the injury of an additional period of unlawful detention while in LASD custody solely by virtue of the detainer and (2) the injury of unlawful detention after being taken into ICE custody, at which point the entire purpose of the detainer would have already been served. Although both injuries were prospective, the TAC shows only the latter to be too speculative to support Article III standing.
2. Causal Connection
The fact that “ICE never had custody of” Gonzalez does not defeat causation. Mendia, 768 F.3d at 1012. The alleged link between the detainer that ICE lodged, and Gonzalez’s detention was entirely plausible. Nat’l Audubon Soc’y, Inc. v. Davis, 307 F.3d 835, 849 (9th Cir. 2002). Absent the detainer that ICE had lodged against him, Gonzalez would have posted bail and been released from LASD custody. He would have faced no additional period of detention by LASD based solely on ICE’s belief that he was removable from the

Plaintiffs lacked standing to seek prospective injunctive relief. “[T]he doctrine of ‘law of the case’ does not apply to the fundamental question of subject matter jurisdiction.” Green v. Dep’t of Commerce, 618 F.2d 836, 839 n.9 (D.C. Cir. 1980). Thus, the district court was not bound by the earlier standing analysis that it implicitly reconsidered in granting relief. We also reject the Government’s assertion that Plaintiffs forfeited any claim for prospective injunctive relief because they declined to amend the TAC following the district court’s determination that they lacked standing to seek such relief. Although “the ordinary rules of forfeiture apply to standing,” a party must fail to raise an argument in the district court to forfeit it. Gov’t of Manitoba v. Bernhardt, 923 F.3d 173, 179 (D.C. Cir. 2019). Here, however, Plaintiffs did not fail to request prospective injunctive relief. And their subsequent decision not to further amend the pleadings on the issue of prospective injunctive relief stemmed from the district court’s flawed standing analysis on the issue of their standing to seek such relief.

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United States. But because of the detainer, Gonzalez “remain[ed] in pre-trial detention unnecessarily.” Mendia, 768 F.3d at 1013. Thus, Gonzalez satisfies the causation element of standing.
3. Redressability
Because Gonzalez faced ongoing and prospective detention injuries by virtue of the detainer when he commenced suit, his “injury was at that moment capable of being redressed through injunctive relief.” McLaughlin, 500 U.S. at 51 (rejecting the county’s “crabbed reading of the complaint” as concerning a “completed” injury and distinguishing Lyons “in which the constitutionally objectionable practice ceased altogether before the plaintiff filed his complaint”); Cent. Delta Water Agency, 306 F.3d at 947 (“[T]he possibility of future injury may be sufficient to confer standing on plaintiffs; threatened injury constitutes injury in fact . . . .” (citation and internal quotation marks omitted)). A court order requiring ICE to rescind its existing immigration detainer would have permitted Gonzalez to post bail from custody on the state criminal charges, thus addressing the ongoing injury he faced when he commenced suit. But it would also have redressed the imminent harm of additional detention that Gonzalez then faced based solely on the detainer. In short, Gonzalez had standing to seek prospective injunctive relief and thus he could seek to represent classes seeking such relief.
B. ICE’s Post-Commencement Cancellation of the Detainer
As a final matter, the Government argues that ICE’s cancellation of the detainer against Gonzalez within hours after he brought suit shows that he never had a Fourth Amendment claim because LASD never detained him

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pursuant to the detainer. In making this argument, the Government mistakes for a merits issue what is plainly a mootness inquiry. See Friends of the Earth, 528 U.S. at 189 (explaining that “[a] case might become moot if subsequent events make it absolutely clear that the allegedly wrongful behavior could not reasonably be expected to recur”).
Mootness is the requirement that “an actual, ongoing controversy exist at all stages of federal court proceedings.” Pitts v. Terrible Herbst, Inc., 653 F.3d 1081, 1086 (9th Cir. 2011) (citing Burke v. Barnes, 479 U.S. 361, 363 (1987)). “The question is not whether the precise relief sought at the time the case was filed is still available, but whether there can be any effective relief.” Bayer v. Neiman Marcus Grp., 861 F.3d 853, 862 (9th Cir. 2017) (citation and internal quotation marks omitted). “The party asserting mootness bears the heavy burden of establishing that there remains no effective relief a court can provide.” Id. The Government comes nowhere near meeting that burden; indeed, it fails to even argue that its cancellation of the detainer mooted Gonzalez’s individual claims, although the district court expressly addressed whether Gonzalez’s claims were mooted by subsequent events. The court determined that Gonzalez’s claims are subject to the “inherently transitory” exception to mootness. See Pitts, 653 F.3d at 1090–91. We agree with the district court’s conclusion and thus reject the Government’s argument here.
II. The Certification of the Probable Cause Subclass
We turn next to the Government’s challenge to the district court’s certification of the Probable Cause Subclass

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with Gonzalez as its representative.11 Because both injunctions grant relief to the Probable Cause Subclass, we must first address the propriety of the district court’s certification of this class. See Meredith v. Oregon, 321 F.3d 807, 814 (9th Cir. 2003).

The party seeking certification must satisfy Rule 23(a)’s prerequisites and must establish that the proposed class qualifies as a certifiable class pursuant to Rule 23(b). Ellis v. Costco Wholesale Corp., 657 F.3d 970, 979–80 (9th Cir. 2011). District courts have “broad discretion to determine whether a class should be certified, and to revisit that certification throughout the legal proceedings before the court.” United Steel, Paper & Forestry, Rubber, Mfg. Energy v. ConocoPhillips Co., 593 F.3d 802, 810 (9th Cir. 2010) (citation omitted). Our review of the district court’s grant of class certification is “noticeably more deferen[tial]” than for a denial of certification. Senne, 934 F.3d at 926. With these principles in mind, we address the Government’s arguments concerning the Rule 23(a) prerequisites and the Rule 23(b)(2) certification of the Probable Cause Subclass.

A. The Rule 23(a) Prerequisites

Pursuant to Rule 23(a), “one or more members of a class may sue . . . as representative parties” if there is numerosity, commonality, typicality, and adequacy. Fed. R. Civ. P. 23(a). We must engage in a “‘rigorous analysis’ of each Rule 23(a) factor[.]” Ellis, 657 F.3d at 980 (quoting Gen. Tel. Co. of the Sw. v. Falcon, 457 U.S. 147, 161 (1982)). The

11 The Government has not challenged the district court’s certification of the Judicial Determination Class. That issue is therefore waived. Padgett v. Wright, 587 F.3d 983, 985 n.2 (9th Cir. 2009).

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Government challenges only the district court’s commonality, typicality, and adequacy findings.
1. Commonality
A finding of commonality requires “questions of law or fact common to the class.” Fed. R. Civ. P. 23(a)(2). “All questions of fact and law need not be common to satisfy the [commonality requirement]. The existence of shared legal issues with divergent factual predicates is sufficient[.]” Meyer v. Portfolio Recovery Assocs., LLC, 707 F.3d 1036, 1041 (9th Cir. 2012) (citation omitted). A plaintiff must “demonstrate that the class members have suffered the same injury,” which means that “[t]heir claims must depend upon a common contention.” Wal-Mart Stores, Inc. v. Dukes, 564 U.S. 338, 349–50 (2011) (citation and internal quotation marks omitted). But “a common contention need not be one that will be answered, on the merits, in favor of the class.” Stockwell v. City & County of San Francisco, 749 F.3d 1107, 1112 (9th Cir. 2014) (citation and internal quotation marks omitted). The Government asserts that the district court abused its discretion in finding commonality. We disagree.
At class certification, Plaintiffs proffered evidence that, in Southern California, “ICE issues . . . approximately seventy percent [] of its detainers relying only on electronic database checks to determine whether there is probable cause for detainment.” Roy, 2016 WL 5219468, at *3, 11. The district court thus found that the Probable Cause Subclass satisfied commonality because they alleged that the Government has an “unlawful policy to base probable cause determinations on only a check of an online database.” Id. at *14. We see no error here. Indeed, we have already held that “in a civil-rights suit . . . commonality is satisfied where the lawsuit challenges a system-wide practice or policy that affects all of the putative class members.” Armstrong v.

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Davis, 275 F.3d 849, 868 (9th Cir. 2001) (abrogated on other grounds by Johnson v. California, 543 U.S. 499 (2005) as recognized in B.K. by next friend Tinsley v. Snyder, 922 F.3d 957, 974 (9th Cir. 2019)); see also La Duke v. Nelson, 762 F.2d 1318, 1332 (9th Cir. 1985) (concluding that “[p]lainly, the constitutionality of the INS ranch check technique as it affects the defined class is a ‘question of law or fact common to the class’”), as amended, 796 F.2d 309 (9th Cir. 1986).
Moreover, the claims of the Probable Cause Subclass turn on the Fourth Amendment’s requirement of “a fair and reliable determination of probable cause as a condition for any significant pretrial restraint of liberty.” Baker v. McCollan, 443 U.S. 137, 142 (1979) (citing Gerstein, 420 U.S. at 103). Because the class is defined as those individuals against whom ICE issued a detainer based solely on searches of electronic databases, ICE’s policy of making probable cause determinations based solely on such searches is the “glue” that holds the class together. See Parsons v. Ryan, 754 F.3d 657, 678 (9th Cir. 2014) (explaining that the “police and practices” “to which all members of the class are subjected” “are the ‘glue’ that holds together the putative class and the putative subclass; either each of the policies and practices is unlawful as to every inmate or it is not.”). A determination concerning the reliability of the system of databases on which the Government relies will resolve Plaintiffs’ claims on a classwide basis.12 See Dukes, 564 U.S. at 350.

12 Although Plaintiffs did not need to prove the merits of their Fourth Amendment claim for the district court to find commonality, the court observed that Plaintiffs had introduced evidence undermining the legality of ICE’s reliance on the databases, including that the databases

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The Government’s assertions of error here conspicuously conflate Rule 23(b)(3)’s predominance requirement with commonality under Rule 23(a)(2). The Government points to Amchem Products, Inc. v. Windsor, 521 U.S. 591 (1997), to suggest that the range of individual circumstances that may surround the issuance of an individual detainer preclude commonality. But, in Amchem, the Supreme Court upheld the denial of certification of a Rule 23(b)(3) class. The Court explained that “the predominance criterion [of Rule 23(b)(3)] is far more demanding” than the commonality requirement of Rule 23(a)(2). Id. at 624 (emphasis added). There, in the context of a case that did not involve a challenge to a single policy or practice of a single defendant, the court determined that certification pursuant to Rule 23(b)(3) was improper because individual questions predominated over common questions. Id. at 624–25. The Probable Cause Subclass, however, is not a Rule 23(b)(3) class and thus need only satisfy Rule 23(a)(2)’s “less demanding” commonality requirement. Stockwell, 749 F.3d at 1113. We can find no abuse of discretion pursuant to a standard that does not actually apply here.
The Government also reprises its argument against class certification in the district court that “probable cause is a highly fact specific inquiry.” Roy, 2016 WL 5219468, at *14. The Government argues that probable cause “depends on the totality of the circumstances” surrounding an individual arrest, Maryland v. Pringle, 540 U.S. 366, 371 (2003), including the “experience and specialized training” of the officer, United States v. Arvizu, 534 U.S. 266, 273

are “outdated and not updated properly” and that ICE relies on “either no or inconclusive evidence” in the databases to make probable cause determinations. Roy, 2016 WL 5219468, at *3–4.

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(2002). Contending that a database search is but one part of the totality-of-the-circumstances analysis, the Government asserts that the lawfulness of an individual detainer must be assessed on its own terms “even if the database alone is unreliable.” The district court rejected this argument, explaining that “the Probable Cause Subclass does not challenge whether ICE actually had probable cause; rather, it challenges the alleged practice of basing probable cause only on information contained in an online database . . .” Roy, 2016 WL 5219468, at *14. The district court correctly rejected the Government’s argument.
Although we have no doubt that “[t]he constitutional validity of a warrantless search is pre-eminently the sort of question which can only be decided in the concrete factual context of [an] individual case,” that question is “quite different from the question of the adequacy of the procedur[es]” on which the government relies to make arrests and detain individuals. Sibron v. New York, 392 U.S. 40, 58 (1968) (emphasis added). On the latter issue, Fourth Amendment claims concerning government policies, practices or procedures for probable cause determinations are plainly suitable for classwide resolution. See McLaughlin, 500 U.S. at 47, 58–59 (considering the legality of a county’s policy and practice of combining probable cause determinations with its arraignment procedures, which resulted in delays before receipt of probable cause determinations); Gerstein, 420 U.S. at 116–19 (considering the Fourth Amendment claims of a certified Rule 23(b)(2) class of individuals subject to pretrial detention who challenged a state law procedure concerning probable cause determinations). Because the claims here are such a challenge, the district court did not err in finding commonality.

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2. Typicality13

The claims of the representative party must be typical of the class claims. Fed. R. Civ. P. 23(a)(3). This “inquiry focuses on the nature of the claim . . . of the class representative, and not . . . the specific facts from which it arose.” Ramirez v. TransUnion LLC, 951 F.3d 1008, 1033 (9th Cir. 2020) (citation and internal quotation marks omitted) (emphasis added). “[W]hether other members have the same or similar injury, whether the action is based on conduct which is not unique to the named plaintiffs, and whether other class members have been injured by the same course of conduct” inform the analysis. Hanon v. Dataproducts Corp., 976 F.2d 497, 508 (9th Cir. 1992) (citation omitted). Rule 23(a)(3) is “permissive” and requires nothing more than that a class plaintiff’s claims be “reasonably coextensive with those of absent class members.” Hanlon v. Chrysler Corp., 150 F.3d 1011, 1020 (9th Cir. 1998). We address in turn the Government’s assertions of atypicality due to (a) Gonzalez’s U.S. citizenship and (b) Gonzalez’s circumstances.

a. Gonzalez’s U.S. Citizenship

The Government asserts that Gonzalez, as a U.S. citizen, is atypical of the class because it includes noncitizens. We disagree.

i. 8 U.S.C. § 1252(b)(9)

The Government argues that Gonzalez is atypical of unnamed noncitizen class members over whose claims the

13 The Government’s challenge to adequacy is coextensive with its challenge to Gonzalez’s typicality. Thus, our analysis here applies equally to adequacy.

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district court lacked subject matter jurisdiction pursuant to 8 U.S.C. § 1252(b)(9). “The usual rule in class actions is that to establish subject matter jurisdiction one looks only to the named plaintiffs and their claims.” Pruell v. Caritas Christi, 645 F.3d 81, 83 (1st Cir. 2011). The Government implicitly concedes that § 1252(b)(9) could not affect jurisdiction over Gonzalez’s claims. Nevertheless, we will assume that whether the district court would have jurisdiction over the claims of unnamed noncitizen class members is relevant here.
Section 1252(b)(9), titled “[c]onsolidation of questions for judicial review,” provides that “[j]udicial review of all questions of law and fact . . . arising from any action taken or proceeding brought to remove an alien from the United States . . . shall be available only in judicial review of a final order” of removal and “no court shall have jurisdiction . . . . to review such an order or such questions of law or fact” other than through a review of a final order of removal. 8 U.S.C. § 1252(b)(9). We have described § 1252(b)(9) as “vise-like in grip,” channeling jurisdiction over “any issue— whether legal or factual—arising from any removal-related activity” to the courts of appeal through a petition for review of a final order of removal. J.E.F.M. v. Lynch, 837 F.3d 1026, 1031 (9th Cir. 2016) (internal quotation marks omitted) (emphasis omitted). But we have also explained that “§ 1252(b)(9) has built-in limits,” specifically, “claims that are independent of or collateral to the removal process do not fall within the scope of § 1252(b)(9).” Id. at 1032.
The Supreme Court has since instructed that § 1252(b)(9) is a “targeted” and “narrow” provision that “is certainly not a bar where, as here, the parties are not challenging any removal proceedings.” Dep’t of Homeland Sec. v. Regents of Univ. of Cal., 140 S. Ct. 1891, 1907

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(2020). The Probable Cause Subclass is defined to exclude individuals against whom there is a final order of removal as well as any individual subject to ongoing removal proceedings. The Government has also admitted that an immigration detainer is not an administrative warrant for the arrest of an individual on civil immigration charges. As in Regents, § 1252(b)(9) is not a bar to jurisdiction over the claims of any class members—noncitizen or U.S. citizens— because none “ask[s] for review of an order of removal, the decision to seek removal, or the process by which removability will be determined.” Id. (cleaned up); see also E. Bay Sanctuary Covenant v. Trump, 950 F.3d 1242, 1269 (9th Cir. 2020) (observing that “[§] 1252(b)(9) . . . applies only to removal orders. . . .”).
Section 1252(b)(9) is also not a bar to jurisdiction over noncitizen class members’ claims because claims challenging the legality of detention pursuant to an immigration detainer are independent of the removal process. See Aguilar v. ICE, 510 F.3d 1, 11 (1st Cir. 2007) (reading “arising from” “to exclude claims that are independent of, or wholly collateral to, the removal process” and identifying “challenges to the legality of detention” as squarely outside § 1252(b)(9)’s scope); Hernández v. Gonzales, 424 F.3d 42, 42–43 (1st Cir. 2005) (holding that detention claims are independent of removal proceedings and, thus, not barred by section 1252(b)(9)). Because § 1252(b)(9) does not bar jurisdiction over the claims of noncitizen class members here, it cannot render Gonzalez atypical.
ii. Rebuttable Presumption of Alienage
The Government also argues that Gonzalez is atypical of noncitizen class members because evidence of foreign birth—“even with citizen-class members”—gives rise to a

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rebuttable presumption of alienage on which an immigration officer may rely as part of a probable cause determination, which does not apply to “someone who is or who the government should have known is a citizen.14 Setting aside that the challenge here concerns the legality of a policy that applies equally to all class members, the Government makes no suggestion that it raised this atypicality argument in the district court, and the class certification order suggests that the Government did not do so. See Roy, 2016 WL 5219468, at *15. Although we may consider an argument raised for the first time on appeal in “exceptional circumstances,” Club One Casino, Inc. v. Bernhardt, 959 F.3d 1142, 1153 (9th Cir. 2020), the Government does not argue that such circumstances apply nor do we see any. The Government conceded in the district court that “evidence of foreign birth and no match in a federal immigration database is not probable cause of removability.” A party remains bound by a concession in the district court notwithstanding a contrary position on appeal. See Reynoso v. Giurbino, 462 F.3d 1099, 1110 (9th Cir. 2006). Thus, we deem the argument waived.
b. Gonzalez’s Individual Circumstances
Finally, the Government asserts that Gonzalez is also atypical in light of the circumstances pertaining to his immigration detainer. The Government first argues that Gonzalez is unlike other class members detained pursuant to an immigration detainer because it cancelled the detainer against him within hours after he filed this suit. By

14 The Government relies on our decision in Scales v. I.N.S., 232 F.3d 1159 (9th Cir. 2000), for this argument. Scales, however, concerned a presumption in a burden-shifting framework in removal proceedings. Id. at 1163. We did not hold that, nor consider whether that presumption applies to a probable cause determination of removability.

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concluding that his claims fall within the inherently transitory exception to mootness, the district court evaluated his claims as they stood before the Government’s cancellation of the detainer. Although the Government asserts that the court confused mootness with whether Gonzalez’s claims are typical, the Government does not identify any authority showing the court’s analysis to be erroneous. A bare assertion of error does not establish an abuse of discretion.
The Government argues further that because an LAPD officer incorrectly wrote on Gonzalez’s booking record that he was born in Mexico, Gonzalez has “unique” circumstances that make him atypical. The Government ignores its own stipulation in the district court that an ICE agent “issued Plaintiff Gonzalez’s detainer” because one database—the Los Angeles County Consolidated Criminal History System—“erroneously stated that [he] was born in Mexico and no records of Plaintiff Gonzalez were found in [two other databases] showing that [he] legally entered the United States or was legally present in the United States.” Howsoever the error was introduced into one of the databases, it was nonetheless an error in a database on which ICE relied to determine whether Gonzalez was removable, as the district court acknowledged at class certification. See Roy, 2016 WL 5219468, at *3, 15. Gonzalez’s claim is thus no different than any other class member who challenges the Government’s issuance of an immigration detainer based solely on a search of electronic databases. Gonzalez is typical of the class. Thus, the district court did not abuse its discretion in concluding that the Probable Cause Subclass satisfied Rule 23(a)’s prerequisites.

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B. The Certification of the Class Pursuant to Rule 23(b)(2)
The district court properly certified the Probable Cause Subclass as a Rule 23(b)(2) class. Id. at *21. Rule 23(b)(2) provides that “[a] class action may be maintained if Rule 23(a) is satisfied and if . . . the party opposing the class has acted . . . on grounds that apply generally to the class, so that final injunctive relief or corresponding declaratory relief is appropriate respecting the class as a whole.” Fed. R. Civ. P. 23(b)(2). “Rule 23(b)(2) applies only when a single injunction or declaratory judgment would provide relief to each member of the class.” Jennings v. Rodriguez, 138 S. Ct. 830, 852 (2018) (citation omitted). The Probable Cause Subclass is narrowly defined to include only those individuals against whom ICE issued an immigration detainer pursuant to its policy of relying solely on a search of electronic databases to make a probable cause determination. The district court properly concluded that a determination about the lawfulness of this policy under the Fourth Amendment and corresponding injunctive or declaratory relief would provide relief to the entire class. See Roy, 2016 WL 5219468, at *21. The Government’s assertions of error here repeat the Government’s challenges to commonality. Because we have already rejected those arguments, they fail here as well. Thus, the district court did not abuse its discretion in concluding that the Probable Cause Subclass satisfied Rule 23(b)(2). Accordingly, we affirm the district court’s certification of this class.
III. Jurisdiction to Order Injunctive Relief for the Detainer Claims
Before we turn to the merits of the State Authority and Database Injunctions, we must also consider the Government’s assertion that 8 U.S.C. § 1252(f)(1) precludes

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the injunctive relief that the district court granted for the detainer claims underlying the classwide injunctions. The plain language of § 1252(f)(1) and the relevant statutory provisions compel us to reject the Government’s assertion.
Section 1252(f)(1) is straightforward. It provides that:
Regardless of the nature of the action or claim . . . , no court (other than the Supreme Court) shall have jurisdiction or authority to enjoin or restrain the operation of the provisions of part IV of this subchapter, as amended by the Illegal Immigration Reform and Immigrant Responsibility Act of 1996, other than with respect to the application of such provisions to an individual alien against whom proceedings under such part have been initiated.

8 U.S.C. § 1252(f)(1). “Part IV” is a reference to the provisions titled “Inspection, Apprehension, Examination, Exclusion, and Removal,” which currently include 8 U.S.C. §§ 1221–1232 of the INA.
By its terms, § 1252(f)(1) does not, as the dissent imagines, categorically insulate immigration enforcement from “judicial classwide injunctions.” Section 1252(f)(1) places limitations on the jurisdiction and authority of district and circuit federal courts to grant injunctive relief that restrains or enjoins the operation of §§ 1221–1232. See Jennings, 138 S. Ct. at 851; Reno v. Am.-Arab AntiDiscrimination Comm., 525 U.S. 471, 481 (1999). But by specifying only “the provisions of Part IV” and reinforcing its focus on only “such provisions,” 8 U.S.C. § 1252(f)(1) (emphasis added), the statute’s plain text makes clear that its limitations on injunctive relief do not apply to other

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provisions of the INA. Unremarkably, we have repeatedly recognized this textual limitation. See Catholic Soc. Servs. v. I.N.S., 232 F.3d 1139, 1150 (9th Cir. 2000) (en banc) (upholding a preliminary injunction because it was issued under “Part V” of the subchapter and thus “by its terms, the limitation on injunctive relief [in § 1252(f)(1)] does not apply to the preliminary injunction granted by the district court”); see also Gonzales v. Dep’t of Homeland Sec., 508 F.3d 1227, 1233 (9th Cir. 2007) (concluding that § 1252(f)(1) did not bar injunction concerning application of statutory provisions regarding adjustment of status because “as in the Catholic Social Services injunction, [the injunction] directly implicates the adjustment of status provision which falls under part V of subchapter II, notwithstanding that a reinstatement proceeding may be a collateral consequence of an unsuccessful adjustment application.” (emphasis added)).
The Government tells us that the injunctions contravene § 1252(f)(1) because its detainer authority is “now codified in, among other statutes, [] §§ 1226 and 1231, both covered by § 1252(f)(1).” But the Government predicates that argument on its detainer regulation, 8 C.F.R. § 287.7.15 “An administrative regulation, of course, is not a ‘statute.’” United States v. Mersky, 361 U.S. 431, 437 (1960). And, by its clear terms, § 1252(f)(1), places limitations only on injunctive relief that would “enjoin or restrain the operation of the provisions of Part IV[.]” 8 U.S.C. § 1252(f)(1) (emphasis added). The regulation is not a provision of Part

15 Although we reject the Government’s argument for other reasons, we observe that the Government’s argument in part rewrites its own regulation, which does not even refer to § 1231. See 8 C.F.R. § 287.7.

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IV, and thus cannot run afoul of § 1252(f)(1).16 Relatedly, Plaintiffs’ challenge to the legality of the Government’s detainer policies and procedures at issue here could not run afoul of § 1252(f)(1) because such procedures are not—as the Government concedes—even codified in the statutory provisions that § 1252(f)(1) encompasses. See Grace v. Barr, 965 F.3d 883, 907 (D.C. Cir. 2020) (explaining that § 1252(f)(1) “refers only to ‘the operation of the provisions’—i.e., the statutory provisions themselves, and thus places no restriction on the district court’s authority to enjoin agency action found to be unlawful.” (emphasis in original)).

The Government’s assertions here avoid statutory text because none of the provisions of Part IV, let alone §§ 1226 and 1231, even refer to “detainers.” See generally 8 U.S.C. §§ 1221–1232. The only provision of the INA whose plain language refers to “detainers” is located in 8 U.S.C. § 1357 (“Powers of immigration officers and employees”), a statutory provision contained in Part IX. See 8 U.S.C. § 1357(d). That provision provides for the issuance of

16 We recognize that Congress has authorized the promulgation of regulations to carry out the provisions of the INA. See 8 U.S.C. § 1103. Whether the detainer regulation is valid pursuant to this grant of general authority, see Comm. for Immigrant Rights of Sonoma Cty. v. Cty. of Sonoma, 644 F. Supp. 2d 1177, 1199 (N.D. Cal. 2009), is not a question that we decide here. What matters here is that that general grant of authority is not located in “Part IV.” Nor, as we discuss shortly, is the only statutory provision that even refers to immigration detainers. See 8 U.S.C. § 1357(d). These deliberate structural choices by Congress— both in § 1252(f)(1) and elsewhere in the INA—determine whether § 1252(f)(1)’s limitations preclude the issuance of injunctive relief concerning detainers by district and circuit courts. See Nken v. Holder, 556 U.S. 418, 431 (2009) (“[T]he Court frequently takes Congress’s structural choices into consideration when interpreting statutory provisions.”).

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immigration detainers only when an individual is arrested for a controlled substance offense and is a suspected alien. Id. We have already recognized that “[t]he INS has authority to lodge a detainer against a prisoner under 8 U.S.C. § 1357(d).” McLean v. Crabtree, 173 F.3d 1176, 1185 n.12 (9th Cir. 1998). The Supreme Court has also recognized the distinct role that § 1357(d) plays in federal immigration law enforcement with state officials. See Arizona v. United States, 567 U.S. 387, 410 (2012) (“State officials can also assist the Federal Government by responding to requests for information about when an alien will be released from their custody.” (citing 8 U.S.C. § 1357(d))). The upshot is that § 1357(d) is not located in Part IV, and thus § 1252(f)(1)’s limitations do not apply.17 See Gonzales, 508 F.3d at 1233; Catholic Soc. Servs., 232 F.3d at 1150.

17 Although its own detainer regulation is titled “detainer provisions under section 287(d)(3) of the Act”—a reference to § 1357(d)—and identifies detainers as “issued pursuant to” § 1357, see 8 C.F.R. § 287.7(a), the Government conspicuously ignored § 1357(d) in its opening brief. In its reply brief, the Government acknowledged § 1357(d) for the first time, but only to explain it away as a mere statutory road bump to the conclusion that any detainer authority necessarily arises from the provisions that § 1252(f)(1) encompasses. The dissent embraces the Government’s approach but goes further. The dissent conjectures that § 1357(d)—a provision that the Government’s own detainer regulation cites three times as a basis for issuing immigration detainers—does not actually authorize detainers at all. We cannot agree with either the Government or the dissent for the simple reason that we are not free to ignore Congress’s choice to locate the only statutory reference to immigration detainers outside the provisions that § 1252(f)(1) encompasses, even if we might disagree with that choice as a policy matter. See United States v. State of Washington,—F.3d—, 2020 WL 4814127, at *6 (9th Cir. Aug. 19, 2020); Planes v. Holder, 652 F.3d 991, 996 (9th Cir. 2011) (explaining that we are not free to stray from statutory text “[r]egardless of our view on the wisdom or efficacy of Congress’s policy choices”).

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Unable to anchor its arguments in the text of §§ 1226 or 1231, the Government tells us that its detainer authority is nonetheless implied under those provisions, and thus § 1252(f)(1)’s limitations apply.18 The dissent embraces this argument, relying on a single unpublished district court decision to surmise that any implied detainer authority must necessarily arise under the provisions that § 1252(f)(1) encompasses. See Santoyo v. United States, No. 5:16-CV855-OLG, 2017 WL 6033861, at 3* (W.D. Tex. Oct. 18, 2017). We cannot, however, “create[] out of thin air” statutory text that does not exist. Hamama v. Adduci, 912 F.3d 869, 879 (6th Cir. 2018); see also Ariz. State Bd. for Charter Sch. v. U.S. Dep’t of Educ., 464 F.3d 1003, 1007 (9th Cir. 2006) (observing that a court may not add or subtract statutory text). That is particularly true here. Whereas Congress did not include any reference to immigration detainers among the provisions to which § 1252(f)(1)’s limitations apply, Congress codified immigration detainers in a provision to which the limitations of § 1252(f)(1) do not apply. We must presume that Congress acted intentionally. See Barnhart v. Sigmon Coal Co., Inc., 534 U.S. 438, 452 (2002) (“When Congress includes particular language in one section of a statute but omits it in another section of the same Act, it is generally presumed that Congress acts intentionally and purposely in the disparate inclusion or exclusion.” (citation and internal quotation marks omitted)).
Although the Government attempts to conjure an implied detainer authority in the shadow of §§ 1226 and 1231, we

18 The classes exclude individuals for whom a detainer issued pursuant to a final order of removal. Thus, the injunction could not restrain or enjoin the operation of § 1231 for this additional reason. Nevertheless, we address the Government’s arguments on their terms.

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observe further that the detainers here do not directly implicate the authority of those provisions. Section 1231 codifies the Attorney General’s authority to remove and detain aliens who are already subject to a final order of removal. 8 U.S.C. § 1231(a)(2), (6). The classes in this case, however, exclude individuals to whom the Government issues a detainer due to a final order of removal. Section 1226 in turn authorizes “the Attorney General” to arrest aliens “[o]n a warrant” and detain them pending removal proceedings. Id. § 1226(a), (c); see also Jennings, 138 S. Ct. at 838 (explaining that “[§] 1226 governs the process of arresting and detaining [certain] aliens pending their removal”). But it is undisputed that a detainer is not a warrant of any kind. More critically, neither DHS, nor ICE arrests or detains any individual by issuing an immigration detainer to a state or local LEA. Instead, DHS and ICE rely on the LEA to do so. Although the Government may use detainers issued to state and local LEAs with the purpose of arresting and detaining a suspected alien, the possibility that the Government may eventually arrest and detain an individual by virtue of the detainers at issue here is of no moment because the INA provisions directly implicated by such detainers fall outside § 1252(f)(1)’s scope.19

19 Congress has addressed the arrest and detention authority of state and local LEAs for aliens, and delimited ICE’s role in provisions to which § 1252(f)(1)’s limitations do not apply. See 8 U.S.C. § 1252c(a) (provision located in Part V and is thus also outside the scope of § 1252(f)(1)). And Congress has addressed elsewhere ICE’s authority to make a warrantless arrest of an individual who ICE has “reason to believe” is a removable alien, 8 U.S.C. § 1357(a)(2), the authority of state and local LEAs to carry out federal immigration functions, id. § 1357(g), and the ability of such LEAs to cooperate with the Federal Government specifically on the issue of detainers, id. § 1357(d). None of these provisions is located in Part IV.

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Our task here is simple: “when the express terms of a statute give us one answer and extratextual considerations suggest another, it’s no contest. Only the written word is the law, and all persons are entitled to its benefit.” Bostock v. Clayton County, 140 S. Ct. 1731, 1737 (2020).20 The written word of the INA is quite clear: none of the provisions that § 1252(f)(1) encompasses refers to immigration detainers. It follows that § 1252(f)(1)’s limitations on injunctive relief do not apply, and thus do not compel vacatur of the injunctions for lack of jurisdiction or authority by the district court to grant such relief. We therefore turn to the merits of the injunctions.
IV. The State Authority Injunction
The State Authority Injunction permanently enjoins ICE “from issuing detainers seeking the detention of Probable Cause Subclass members to law enforcement agencies in states that lack state law permitting state and local law enforcement agencies to make civil immigration arrests based on civil immigration detainers only.”
Plaintiffs contend that this injunction is “merely an alternative basis” on which the district court granted relief to the Probable Cause Subclass. Because the class is defined in part by ICE’s reliance on electronic database searches to issue immigration detainers, Plaintiffs argue that we should

20 The dissent objects to the analysis here in part because of the consequences that it speculates will ensue, namely, that some future plaintiffs could challenge the regulation, or the possibility that the Government’s detainer “enforcement tools” could be affected by an injunction at some point. These extratextual considerations are insufficient to tip the statutory scales in favor of the Government’s desired outcome, or the dissent’s approach. See Bostock, 140 S. Ct. at 1737.

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limit our analysis to the Database Injunction to avoid the constitutional issues underlying the State Authority Injunction. We are unpersuaded. That both injunctions pertain to the same class does not render “alternative” the State Authority Injunction’s imposition of, as Plaintiffs recognize, “totally independent” restrictions with distinct legal and factual issues. There are also no constitutional questions to avoid because, as discussed in Part V, the Database Injunction is infirm. Thus, we must decide the merits of the State Authority Injunction.21
At the outset, we must clarify what we do not decide here. In issuing the State Authority Injunction, the district court relied on principles of preemption and federalism to reason that a state “must consent to the delegation of federal immigration functions,” in the absence of which ICE violates the Fourth Amendment by issuing an immigration detainer. Gonzalez, 416 F. Supp. 3d at 1015. But neither Plaintiffs’ operative complaint, nor the final pre-trial order hinted at claims against the Government premised on preemption or federalism. Here, Plaintiffs disavow reliance on preemption principles. And, although we have noted the federalism concerns that immigration detainers may raise, City & County of San Francisco v. Trump, 897 F.3d 1225, 1241 n.7 (9th Cir. 2018), Plaintiffs do not raise and have therefore waived any federalism arguments concerning the State Authority Injunction. See United States v. Dreyer,

21 The Government perfunctorily suggests that the State Authority Injunction is invalid because the district court permitted Plaintiffs to raise the underlying claim before trial. The Government, however, failed to brief and thus has waived this issue. Cal. Pac. Bank v. Fed. Deposit Ins. Corp., 885 F.3d 560, 570 (9th Cir. 2018).

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804 F.3d 1266, 1277 (9th Cir. 2015) (“[A]n appellee waives any argument it fails to raise in its answering brief.”).
The only issue that we must decide is whether state law restrictions on the authority of state or local officers to enforce federal civil immigration law determine whether the Government violates the Fourth Amendment by issuing an immigration detainer. The Supreme Court’s decision in Virginia v. Moore, 553 U.S. 164 (2008), instructs that the answer is “no.”
In Moore, the defendant was charged with possession of cocaine with intent to distribute after Virginia state officers discovered crack cocaine on him as part of a search incident to his warrantless arrest for the misdemeanor of driving with a suspended license. Id. at 166–67. Moore moved to suppress the crack cocaine on the ground that his arrest violated the Fourth Amendment because driving with a suspended license was not an arrestable offense in Virginia and thus the officers lacked authority to arrest him. Id. at 167–68. In reversing the trial court’s denial of the motion, the Virginia Supreme Court “reasoned that since the arresting officers should have issued Moore a citation under state law, and the Fourth Amendment does not permit search incident to citation, the arrest search violated the Fourth Amendment.” Id. at 168. The United States Supreme Court reversed.
Two aspects of the Court’s analysis are key here. First, the Court reinforced the primacy of probable cause in the evaluation of whether a warrantless arrest comports with the Fourth Amendment. Id. at 171 (“[W]hen an officer has probable cause to believe a person committed even a minor crime . . . the arrest is constitutionally reasonable.”); id. at 173 (“[A]n arrest based on probable cause serves interests that have long been seen as sufficient to justify the

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seizure.”); id. at 174–75 (explaining that even if state law restrictions somehow altered the policy interests, the Court “would adhere to the probable-cause standard . . . because of the need for a bright-line constitutional standard”). Second, the Court squarely rejected the notion that “state-law arrest limitations” dictate whether a Fourth Amendment violation has occurred. Id. at 175. The Court explained that “linking Fourth Amendment protections to state law would cause them to ‘vary from place to place and from time to time.’” Id. at 176 (quoting Whren v. United States, 517 U.S. 806, 815 (1996)). To avoid the “vague and unpredictable” consequences of tethering the Fourth Amendment to the laws of the fifty states, id. at 175, the Court held that “state restrictions do not alter the Fourth Amendment’s protections,” id. at 176. In resolving the case, the Court concluded that even if Moore’s arrest violated state law, “it is not the province of the Fourth Amendment to enforce state law.” Id. at 178. Because the officers had probable cause to believe that Moore violated state law by driving with a suspended license, his warrantless arrest and ensuing search were constitutional. Id.
Plaintiffs tell us that Moore is distinguishable because it concerned criminal rather than civil arrests. We do not understand why that distinction matters to the general Fourth Amendment principles that Moore articulated concerning warrantless arrests and seizures. It is undisputed that an immigration detainer requests detention of an individual. “Detention, of course, is a type of seizure of the person to which Fourth Amendment protections attach.” Alcocer v. Mills, 906 F.3d 944, 953 (11th Cir. 2018). Moreover, those protections apply in the civil immigration context. United States v. Brignoni-Ponce, 422 U.S. 873, 881–82, 884 (1975); Alcocer, 906 F.3d at 953 (“[T]he Supreme Court long ago held that, beyond a Terry stop, any detention of a suspected

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alien ‘must be based on consent or probable cause’ that the person is, in fact, an alien.’” (citation omitted)); TejedaMata v. Immigration & Naturalization Serv., 626 F.2d 721, 724–25 (9th Cir. 1980) (applying “the constitutional requirement of probable cause” to immigration arrests).
Critically, we have already applied Moore to conclude that the absence of state authorization for a state officer to enforce federal immigration law does not render the officer’s seizure of an individual for the suspected civil immigration offense of unlawful presence in the United States a Fourth Amendment violation. See Martinez-Medina v. Holder, 673 F.3d 1029, 1031–32 (9th Cir. 2011). There, the petitioners sought to suppress evidence of alienage for an allegedly egregious Fourth Amendment violation. Id. at 1036. They argued that an Oregon deputy sheriff who had arrested them lacked state law authority to do so, pointing to a provision of Oregon law that expressly forbade law enforcement agencies from apprehending someone whose only violation of law was the violation of federal immigration law. Id. (citing Or. Rev. Stat. § 181.850). “We assume[d], without deciding, that the deputy sheriff, like the officers in Moore, violated state law when he apprehended the aliens without the authority to do so.” Id. at 1037. We nonetheless held that “the deputy sheriff’s violation of Oregon law does not constitute a violation of the Fourth Amendment” and thus “cannot be the basis for finding an egregious Fourth Amendment violation.” Id. at 1036 (citing Moore, 553 U.S. at 173–74). We concluded that “like the state law violation in Moore, the deputy sheriff’s violation of Oregon law does not constitute a Fourth Amendment violation.” Id. at 1037. Martinez-Medina thus confirms Moore’s application here.

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In finding for Plaintiffs on the State Authority Claim and entering the resulting State Authority Injunction, the district court erred by failing to account for Moore and MartinezMedina. See Gonzalez, 416 F. Supp. 3d at 1015–16. The court thereby concluded that the Government violates the Fourth Amendment by issuing a detainer to state or local LEAs in a state that does not authorize federal civil immigration enforcement.22 Id. Thus, even when the Government has probable cause of removability, the Government would nevertheless violate the Fourth Amendment due to the happenstance of the state in which an individual is located when ICE issues a detainer.
Moore, however, rejected the unpredictability and vagaries of such a regime with a bright-line rule: the constitutionality of a warrantless arrest under the Fourth Amendment does not depend on whether state law authorizes state or local officers to make the arrest, but on whether there is probable cause. Moore, 553 U.S. at 171, 176–78; Martinez-Medina, 673 F.3d at 1036–37; Brobst, 558 F.3d at 989 (concluding that Moore forecloses reliance on state law to determine whether a seizure violates the Fourth Amendment); United States v. Turner, 553 F.3d 1337, 1346 (10th Cir. 2009) (applying Moore to conclude that “because arrests made in violation of state law are not per se unreasonable under the Fourth Amendment, it does not matter for the purposes of our analysis whether [state

22 The district court relied on the plurality decision in Ker v. California, 374 U.S. 23, 37 (1963), for the proposition that “under the Fourth Amendment . . . the lawfulness of arrests for federal offenses is to be determined by reference to state law.” Gonzalez, 416 F. Supp. 3d at 1016. We, however, have already explained that Moore “distinguishes Ker,” including, as is relevant here, that Ker did not concern a federal offense. United States v. Brobst, 558 F.3d 982, 989–90 (9th Cir. 2009). Thus, the district court erred in relying on Ker.

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officers] had jurisdictional authority under state law, as long as the officers’ actions were otherwise reasonable”). That issue concerns the Database Claim and Database Injunction.23 But because “state restrictions do not alter the Fourth Amendment’s protections,” Moore, 553 U.S. at 17, the district court erred in concluding otherwise and abused its discretion in entering the State Authority Injunction. We therefore reverse and vacate the State Authority Injunction.
V. The Database Injunction
Plaintiffs have challenged the Government’s issuance of immigration detainers from the Central District based solely on searches of electronic databases to make probable cause determinations of removability. In finding for Plaintiffs on this Database Claim, the district court concluded that the databases are unreliable for determining probable cause of removability, and thus the Government violates the Fourth Amendment by issuing detainers based solely on searches of the databases. See Gonzalez, 416 F. Supp. 3d at 1016–21. The court enjoined the Government from issuing detainers from the Central District based solely on searches of electronic databases to make probable cause determinations of removability. We first outline Fourth Amendment

23 The Government argues that probable cause may be imputed to state or local officers who act pursuant to an immigration detainer issued by an ICE agent who has probable cause. Two of our sister circuits have suggested as much. See City of El Cenizo v. Texas, 890 F.3d 164, 187 (5th Cir. 2018) (concluding that pursuant to the “collective-knowledge doctrine” “the ICE officer’s knowledge may be imputed to local officials even when those officials are unaware of the specific facts that establish probable cause of removability”); Mendoza v. U.S. Immigration & Customs Enf’t, 849 F.3d 408, 414–15 (8th Cir. 2017) (similar). Imputation of probable cause, however, requires that probable cause exist, which still leads us to the Database Claim.

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principles that apply here, and then turn to the factual findings and legal conclusions underlying the injunction.
A. Fourth Amendment Principles
The Fourth Amendment protects against unreasonable seizures by the government. U.S. Const. amend. IV. “The infringement on personal liberty of any ‘seizure’ of a person can only be ‘reasonable’ under the Fourth Amendment if we require the police to possess ‘probable cause’ before they seize him.” Terry v. Ohio, 392 U.S. 1, 38 (1968) (emphasis added); see also Henry v. United States, 361 U.S. 98, 102 (1959).
“[P]robable cause is a fluid concept—turning on the assessment of probabilities in particular factual contexts— not readily, or even usefully reduced to a neat set of legal rules.” Illinois v. Gates, 462 U.S. 213, 232 (1983). “Neither certainty nor a preponderance of the evidence is required.” United States v. Kelley, 482 F.3d 1047, 1050 (9th Cir. 2007). “Probable cause is not a high bar.” District of Columbia v. Wesby, 138 S. Ct. 577, 586 (2018) (citation and internal quotation marks omitted). It is well-settled that a “fair and reliable determination of probable cause [is] a condition for any significant pretrial restraint of liberty.” Baker, 443 U.S. at 142. Thus, the government must rely on “reasonably trustworthy information sufficient to warrant a prudent person in believing” that an individual has committed an offense. Rohde v. City of Roseburg, 137 F.3d 1142, 1144 (9th Cir. 1998) (citation omitted).
As is relevant here, the government may rely on a computer database to make a probable cause determination. Herring v. United States, 555 U.S. 135, 146–47 (2009). But when the government chooses “to enjoy the substantial advantages this technology confers,” the government

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accepts “the burden of corresponding constitutional responsibilities.” Arizona v. Evans, 514 U.S. 1, 17–18 (1995) (O’Connor, J., concurring). And when the government relies solely on a computer database to make a probable cause determination, the legality of a resulting seizure or detention “hinges entirely on the reliability of [the] computer database[.]” United States v. Esquivel-Rios, 725 F.3d 1231, 1238 (10th Cir. 2013) (Gorsuch, J.); see also Morales v. Chadbourne, 235 F. Supp. 3d 388, 401 (D.R.I. 2017) (“A database search is only successful and its results are only reliable under a probable cause analysis if the information contained in the database is complete and if the search is thorough and based on available identifiers.”), appeal dismissed, No. 17-1300, 2017 WL 4574440 (1st Cir. May 24, 2017).
Although probable cause is “incapable of precise definition or quantification into percentages because it deals with probabilities and depends on the totality of the circumstances,” Pringle, 540 U.S. at 371, the reliability of a computer database may lend itself to such an inquiry. See Esquivel-Rios, 725 F.3d at 1237–38. A database may also have shortcomings by virtue of the data that it contains. For example, a database may lack complete records. See Orhorhaghe v. I.N.S., 38 F.3d 488, 498–99 (9th Cir. 1994) (concluding that reliance on the Immigrant Index System database, which did not contain entry records predating 1983 and excluded “millions of people who are legitimately present in the United States,” did not provide sufficient cause for immigration agents to seize individual for suspected illegal presence). Similarly, a database may have static or outdated information. See Smith v. City of Oklahoma City, 696 F.2d 784, 787 (10th Cir. 1983) (finding no probable cause for an arrest warrant when “a computer check” used pursuant to city procedure to issue the parking tickets

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underlying the warrant established only who owned vehicle on the date of check, but not who owned the vehicle on earlier or later dates). But howsoever a database is unreliable, the ultimate inquiry is whether the database provides officers with “reasonably trustworthy information” for determining probable cause. Rohde, 137 F.3d at 1144 (citation omitted). With these principles in mind, we turn to the Database Injunction.
B. The Errors Underlying the Database Injunction
The claims of the Probable Cause Subclass concern the Government’s issuance of immigration detainers from the Central District. The Government must have probable cause to lodge an immigration detainer, i.e., before an individual is detained pursuant to the detainer. See Hernandez, 939 F.3d at 200; Morales v. Chadbourne, 793 F.3d 208, 211 (1st Cir. 2015); Cervantez v. Whitfield, 776 F.2d 556, 560 (5th Cir. 1985). Because only an individual who is not a U.S. citizen and who lacks lawful immigration status is removable from the United States, probable cause here hinges on the information about an individual’s citizenship and immigration status on which the government relies to issue a detainer. See Brignoni-Ponce, 422 U.S. at 884; Orhorhaghe, 38 F.3d at 497; Tejeda-Mata, 626 F.2d at 725. Moreover, because the Database Claim challenges the Government’s practice of issuing immigration detainers based solely on searches of electronic databases, the probable cause determinations here hinge entirely on the reliability of the databases. See Esquivel-Rios, 725 F.3d at 1238.
The district court concluded “that ICE violates the Fourth Amendment by relying on an unreliable set of databases to make probable cause determinations for its detainers.” Gonzalez, 416 F. Supp. 3d at 1018. We do not

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recount all the underlying factual findings because it is unnecessary to do so. Instead, we focus on three interrelated, yet distinct errors that require reversal: (1) the district court’s incomplete set of reliability findings, (2) the district court’s legal error in concluding that any database is unreliable due to its intended purpose, and (3) the district court’s failure to address whether the system of databases on which ICE relies routinely fails to provide sufficiently trustworthy evidence of removability.
1. The Incomplete Database Reliability Findings
Throughout the district court’s order are a number of sweeping, categorical conclusions about the databases on which ICE relies. See id. at 1011 (“All told, the collection of datapoints ICE gathers from the various databases does not provide affirmative indicia of removability to satisfy probable cause . . . because the aggregation of information ICE receives from the databases is largely erroneous and fails to capture certain complexities and nuances of immigration law.”); id. at 1019 (“[T]he set of databases ICE checks, and the information stored therein, contain serious errors.”).
These categorical findings, however, suffer from a key shortcoming: the district court did not make reliability findings for all the databases on which ICE relies. Although trial occurred in May 2019, the district court anchored its analysis in the databases on which ICE relied as of December 2017 and identified sixteen databases on which ICE relied at that point. Id. at 1007–08 & n.12. Its unreliability findings, however concerned only six databases. Id. at 1008–11, 18–19 (examining the CIS, CLAIMS 3 and CLAIMS 4, ADIS, SEVIS, and TECS databases). Although the court identified them, the court failed to make any findings for PCQS (Person Centric Query

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Search), EOIR, EID, SQ11, SQ94, ELIS 1 & 2, the California Birth Index, the CCD database, the RAPS (Refugee, Asylum and Parole System) database, or the NCIC and NLETS databases.24 Id.
Plaintiffs argue that the district court did not need to make reliability findings about all the databases on which ICE relies because they are not relevant to the Probable Cause Subclass for one reason or another. But Plaintiffs’ assertions in their briefing are not findings by the district court. Moreover, contrary to Plaintiffs’ arguments, the court expressly recognized that some of the databases for which it failed to make any determinations of reliability contain information that bears on probable cause determinations of removability for Probable Cause Subclass members. For example, the district court recognized that the NCIC and NLETS criminal databases “are relevant for removability purposes,” but failed to assess their reliability. Id. at 1008. The district court also recognized that the CCD database contains information about visas for which noncitizens have applied, id. at 1007 n.12, but the court apparently thought that the database was irrelevant because “it is not a broadreaching database that captures all U.S.-born citizens, id. at 1011 n.17. Notably, Plaintiffs offer no explanation for the district court’s failure to address the NCIC, NLETS, and CCD databases.
In a case concerning the reliability of the databases on which ICE relies to make probable cause determinations, the district court could not make categorical findings of unreliability without actually addressing each database on

24 The district court apparently excluded the RAPS database because “ICE is not required to search” it. Gonzalez, 416 F. Supp. 3d at 1011. But trial evidence showed that ICE searched that database.

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which ICE relies or explaining why an evaluation of a given database was unnecessary. Because the court failed to do so, the court erred in concluding that ICE’s practice of relying solely on searches of “the databases” to make probable cause determinations violates the Fourth Amendment.
2. The Database Purpose Error
In evaluating the reliability of the databases on which ICE relies, the district court relied on Footnote 7 of our decision in Millender v. County of Los Angeles, 620 F.3d 1016, 1029 n.7 (9th Cir. 2010) (en banc), rev’d and vacated on other grounds by Messerschmidt v. Millender, 565 U.S. 535 (2012), to reason that whether a database was intended to provide probable cause of removability determines whether that database is reliable for that purpose. See Gonzalez, 416 F. Supp. 3d at 1017–18. Applying that lens, the court concluded that “the databases ICE uses are unreliable because no single database used was intended to provide any indication of probable cause of removability.” Id. at 1019.
The district court’s conclusion, however, stemmed from a fundamental misreading of Millender. In Millender, we rejected the dissent’s reliance on a statement in an affidavit used to support a search warrant, which referred to information contained in the “cal-gang database.” Compare Millender, 620 F.3d at 1029 n.7 (opinion of the court), with id. at 1036 n.1 (Callahan, J., dissenting). We explained that the magistrate judge could not infer a prior felony conviction from that reference because the advisory note for the database expressly “warn[ed] that the [] database ‘is not designed to provide users with information upon which official actions may be taken,’ and ‘cannot be used to provide probable cause for an arrest or be documented in an affidavit for a search warrant.’” Id. at 1029 n.7 (citation

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omitted). We did not suggest that an express admonition not to use a database to make a probable cause determination meant that database purpose more generally determines the reliability of a database; indeed, we did not address the reliability of the database at all.
Properly understood, our reasoning in Millender would support the exclusion of a database from the probable cause calculus for evaluating the merits of the Database Claim if a database on which ICE relies warns against reliance on it to make probable cause determinations of removability specifically or, more generally, for civil immigration purposes. But the district court made no such findings. Because we cannot extricate the court’s erroneous reading of Millender from its conclusion that the databases on which ICE relies are unreliable, we conclude that the district court committed legal error.
3. The Failure to Find or Analyze Systematic Error
Finally, we come to the most fundamental error in the district court’s analysis: the absence of any findings on or an assessment of systemic error in ICE’s probable cause determinations based on searches of electronic databases. The Database Claim that Plaintiffs raise is a challenge to a system of databases on which ICE relies to issue detainers from the Central District for class members. Thus, to find for Plaintiffs on this claim, it was not enough for the district court to identify errors in individual databases on which ICE relies. Instead, the district court had to make findings about and explain how this system of databases results in “unreliable” probable cause determinations. Herring, 555 U.S. at 146; see also Evans, 514 U.S. at 17 (“Surely it would not be reasonable for the policy to rely, say, on a recordkeeping system . . . that has no mechanism to ensure

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its accuracy over time and that routinely leads to false arrests.”).
Unreliable here means that ICE routinely issues immigration detainers without reasonably trustworthy evidence of removability. As the experiences of Gonzalez and other individuals who are not removable but have been subject to an immigration detainer underscores, unreliability has tangible consequences. One way to assess the trustworthiness of ICE’s system is to quantify these unlawful arrests and use them to determine the nature and extent of any systematic error. We are unable, however, to identify any findings by the district court of systematic error in the issuance of detainers from the Central District, let alone a reasoned analysis on this issue.
To be sure, the district court briefly touched on “the effect of ICE’s reliance on the databases for probable cause determinations.” Gonzalez, 416 F. Supp. 3d at 1011. Focusing on data from when PERC relied on fewer databases, the court observed that PERC issued some 12,797 detainers between May 2015 and February 2016. Id. Of these detainers, ICE lifted 771 detainers because the individuals were either U.S. citizens or otherwise not subject to removal and, of those, 42 were U.S. citizens. Id. But the court did not translate this data into findings about detainer lift rates that might illuminate whether the Government’s system of databases routinely results in the Government issuing detainers for class members who are not removable.25 Nor did the district court identify any evidence

25 Although the parties dispute the lift rates of this data and whether the true error rate is higher, it is not our role to make factual findings.

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of lift or error rates based on the system of databases on which ICE actually relied as of December 2017.
Relatedly, the court failed to account for or examine systematic error in its analysis of whether the Government’s database practices violate the Fourth Amendment. Id. at 1017–20. Even if an individual database provides incomplete information, other databases may compensate for those weaknesses, resulting in a sufficiently reliable accumulation of evidence to furnish probable cause. Although the court’s finding of a Fourth Amendment violation turned on error in individual databases in light of case law concerning individual databases, the fact of such error in individual databases here could not lead to the conclusion that ICE’s system of databases routinely fails to provide reasonably trustworthy evidence of removability.
It may be that despite our disagreements with the district court’s analysis here, the court will ultimately be proven correct about the unreliability of ICE’s system of databases. But we cannot take the laboring oar on resolving factual issues and performing legal analysis that the district court never did when it found in favor of Plaintiffs on the Database Claim and permanently enjoined the Government from relying solely on searches of electronic databases to issue immigration detainers from the Central District. See Gonzales v. Thomas, 547 U.S. 183, 185 (2006) (per curiam). When a district court has applied the wrong legal standard, “we ordinarily remand the case so that it may apply the correct one in the first instance.” Kirkpatrick v. Chappell, 872 F.3d 1047, 1058 (9th Cir. 2017).
In light of the foregoing errors, the district court abused its discretion when it entered the Database Injunction. We reverse and vacate the judgment and injunction on the Database Claim, and remand for the district court to

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reconsider the claim, including by making additional findings of fact as are necessary to properly resolve it.
VI. The Gerstein Claim
Finally, we come to Plaintiffs’ cross appeal concerning the district court’s grant of summary judgment for the Government on the Gerstein claim of the Judicial Determination Class. The class is defined, in relevant part, to include those individuals detained pursuant to a detainer for longer than 48 hours. The legal contention undergirding the Gerstein claim is that the Fourth Amendment requires prompt review of a probable cause determination of removability “by an independent, neutral official who is not engaged in law enforcement activities” to justify detention pursuant to an immigration detainer. The district court thought that Gerstein was inapposite because Gerstein arose in the criminal context rather than the civil immigration context. The district court erred in concluding so, and thus we reverse on this issue.
In Gerstein v. Pugh, the Supreme Court considered the legality of state law criminal procedures, which permitted a person arrested without a warrant and charged by a prosecutor’s information to be jailed pending trial without any opportunity for a probable cause determination. 420 U.S. at 116. In holding this procedure to be unconstitutional, the Court explained that it “has required that the existence of probable cause be decided by a neutral and detached magistrate whenever possible” “[t]o implement the Fourth Amendment’s protection against unfounded invasions of liberty and privacy[.]” Id. at 112. The Court explained that a “neutral and detached magistrate” is one who is “independent of police and prosecution.” Id. at 112–13, 118. The Court recognized that “a policeman’s on-the-scene assessment of probable cause provides legal

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justification for arresting a person suspected of crime, and for a brief period of detention to take the administrative steps incident to arrest.” Id. at 113–14. But “[o]nce the suspect is in custody, however, the reasons that justify dispensing with the magistrate’s neutral judgment evaporate.” Id. at 114. “When the stakes are [as] high” as “prolonged detention,” “the detached judgment of a neutral magistrate is essential if the Fourth Amendment is to furnish any meaningful protection from unfounded interference with liberty.” Id. Thus, “the Fourth Amendment requires a judicial determination of probable cause as a prerequisite to extended restraint of liberty following arrest.” Id. That determination must be “timely.” Id. at 126.
The Court elaborated on the timeliness aspect of Gerstein in County of Riverside v. McLaughlin. The Court explained that “[a] . . . judicial determination[] of probable cause within 48 hours of arrest will, as a general matter, comply with the promptness requirement of Gerstein.” 500 U.S. at 56. “Where an arrested individual does not receive a probable cause determination within 48 hours, the calculus changes. In such a case, the arrested individual does not bear the burden of proving an unreasonable delay.” Id. at 57. Instead, the government bears the burden “to demonstrate the existence of a bona fide emergency or other extraordinary circumstance.” Id.
The critical question here is whether the Fourth Amendment principle that Gerstein articulated applies to the civil immigration context. The answer to this question is necessarily “yes.” The Supreme Court confirmed long ago that any detention of a suspected alien “must be based on consent or probable cause” that the person is in fact an alien. Brignoni-Ponce, 422 U.S. at 881–82. In short, the “broad congressional power over immigration . . . cannot diminish

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the Fourth Amendment rights of citizens who may be mistaken for aliens.” Id. at 884. It necessarily follows that the Fourth Amendment requires a prompt probable cause determination by a neutral and detached magistrate to justify detention beyond that which may be initially justified by any probable cause determination of removability.
We are not persuaded by the Government’s objections to the application of Gerstein in this context.26 The Government argues that immigration detainers are exempt from Gerstein based on the Supreme Court’s observation in a different context that “[a] deportation hearing is a purely civil action to determine the eligibility to remain in the country” and thus “various protections that apply in the context of a criminal trial do not apply in a deportation hearing.” Immigration & Naturalization Serv. v. LopezMendoza, 468 U.S. 1032, 1038 (1984). Lopez-Mendoza, however, has no bearing on whether Gerstein applies to arrests or detention for civil immigration purposes. That case concerned the application of the judge-made exclusionary rule—a “prudential doctrine” that concerns “an issue separate from the question whether the Fourth Amendment rights of the party seeking to invoke the rule were violated.” Davis v. United States, 564 U.S. 229, 236, 244 (2011) (internal quotation marks and citations omitted).
The Government’s reliance on Abel v. United States, 362 U.S. 217 (1960), as a basis for not applying Gerstein here is also unavailing. In Abel, the Supreme Court opined that, consistent with the Fourth Amendment, immigration

26 We summarily reject the Government’s reliance on United States v. Tejada, 255 F.3d 1 (1st Cir. 2001), a decision which concerned the application of Federal Rule of Criminal Procedure 5(a). Id. at 2. That decision is irrelevant to the constitutional issue here.

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authorities may arrest individuals for civil immigration removal purposes pursuant to an administrative arrest warrant issued by an executive official, rather than by a judge. Id. at 230–34. Although an immigration detainer is not an administrative warrant, we will assume that Abel nevertheless applies here. Even with that assumption, Abel is of no help.
Nothing in Gerstein, or the principle that it articulated, requires review of a probable cause determination by an Article III judge. See, e.g., Shadwick v. City of Tampa, 407 U.S. 345, 350 (1972) (allowing “neutral and detached” municipal court clerks to issue arrest warrants). Plaintiffs concede here that they do not claim that the Fourth Amendment requires that an Article III judge make a probable cause determination. Instead, they ask only for review by a sufficiently detached and neutral executive official, such as an immigration judge. We have previously acknowledged the permissibility of such review. Flores v. Meese, 942 F.2d 1352, 1358, 1364 (9th Cir. 1991) (requiring immigration judges to “determine probable cause for [an immigration] arrest”), rev’d on other grounds by Reno v. Flores, 507 U.S. 292 (1993). And such review is otherwise consistent with Abel’s recognition that Congress may delegate certain decisions to executive officials in the immigration context without violating the Fourth Amendment.
Finally, the Government relies on our decision in Rhoden v. United States, 55 F.3d 428 (9th Cir. 1995), a case concerning a border detention. We do not understand how Rhoden affects whether Gerstein applies to the immigration detainers at issue here. Properly understood, Rhoden concerns whether the unique circumstances of a particular type of detention affects the timing of a probable cause

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determination by a detached and neutral magistrate, not whether such a determination is required at all. We acknowledged there that “[i]n the context of a criminal arrest, a detention of longer than 48 hours without a probable cause determination violates the Fourth Amendment as a matter of law in the absence of a demonstrated emergency or other extraordinary circumstance.” Id. at 432 n.7 (citing McLaughlin, 500 U.S. at 44). But we explained that “border detentions involve a distinct set of considerations and require different administrative procedures.” Id. With these unique circumstances in mind, we remanded Rhoden for additional factfinding regarding the reasonableness of the detention without a probable cause hearing. Id. at 432. Unlike Rhoden, this case does not concern border detention. We do not otherwise see what unique set of considerations could apply to the issuance of immigration detainers to individuals who are already in the custody of a state or local LEA.
In short, we conclude that the district court erred when it granted summary judgment for the Government on the Judicial Determination Class’s Gerstein claim based on the conclusion that Gerstein does not apply to the civil immigration context. Detaining persons for more than 48 hours pursuant to an immigration detainer implicates Gerstein. We therefore reverse and remand for the district court to apply the correct legal standard in the first instance.27 See Kirkpatrick, 872 F.3d at 1058; Zetwick v. County of Yolo, 850 F.3d 436, 442 (9th Cir. 2017).

27 Remand is especially appropriate here because, in the time since the district court considered Plaintiffs’ Gerstein claim, the Government has changed its immigration detainer policy to require the issuance of an administrative warrant alongside any immigration detainer. Although Plaintiffs argue that this policy still violates Gerstein, the district court

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CONCLUSION
For the foregoing reasons, we conclude that Gonzalez had standing at the time that he brought suit to seek prospective injunctive relief and ICE’s cancellation of the detainer it placed on Gonzalez did not moot his claim. We hold that § 1252(f)(1)’s limitations on injunctive relief do not apply to the claims at issue in this case. We AFFIRM the district court’s certification of the Probable Cause Subclass. We REVERSE and VACATE the State Authority Injunction. We REVERSE and VACATE the Database Injunction, and REMAND for the district court to reconsider the Database Claim. Finally, we REVERSE and VACATE the summary judgment for the Government on the Gerstein claim, and REMAND for the district court to reconsider the claim.
AFFIRMED IN PART; REVERSED AND VACATED IN PART; and REMANDED for proceedings consistent with this opinion. EACH SIDE SHALL BEAR ITS OWN COSTS.

BADE, Circuit Judge, dissenting:
The plaintiffs in this case seek classwide orders enjoining Immigrations and Customs Enforcement (ICE) from using certain databases when deciding whether to issue immigration detainers and from collaborating with law enforcement in certain states to detain suspected removable
never considered that issue. Because we are a court of review and not first view, Gonzales, 547 U.S. at 185, we decline to consider the issue here.

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aliens. It is difficult to see how such orders would not work to “enjoin or restrain the operation of the provisions of part IV” of the Immigration and Nationality Act (INA).1 See 8 U.S.C. § 1252(f)(1). Because Congress has enacted a clear jurisdictional bar to such relief in § 1252(f)(1), I respectfully dissent.
I
The majority reasons that because 8 U.S.C. § 1357(d) is the only provision in the INA that explicitly mentions immigration detainers, and it “is not located in ‘Part IV,’” § 1252(f)(1) does not bar injunctive relief in this case. Maj. Op. 42 n.16. I find this approach flawed for two reasons.
First, the majority purportedly relies on the plain language of the statute to conclude that § 1252(f)(1) does not bar injunctive relief in this case. Maj. Op. 40. But its interpretation ignores the plain language of the statute, which prohibits classwide injunctive relief that would “enjoin or restrain the operation of the provisions of part IV.” § 1252(f)(1) (emphasis added). Under the majority’s interpretation, § 1252(f)(1) would not bar an order that enjoins or restrains any important law enforcement tool that ICE employs to enforce the provisions of part IV (such as the tools identified in § 1357, “Powers of immigration officers and employees”),2 unless that tool is specifically

1 The reference in § 1252(f)(1) to “part IV” is to 8 U.S.C. § 1221– 1232, a series of provisions addressing the “Inspection, Apprehension, Examination, Exclusion, and Removal” of aliens. See 8 U.S.C. ch. 12, subch. II, pt. IV.
2 These powers include: warrantless interrogations, arrests, and searches of vessels, railway cars, aircraft, or vehicles, § 1357(a); carrying a firearm and executing or serving any order, warrant,

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identified in part IV. Thus, the majority reads the words “the operation of” out of the statute.
Second, the majority’s analysis of § 1252(f)(1) relies on the apparent conclusion that § 1357(d) is the entire source of ICE’s detainer authority. Maj. Op. 42–43. But the statute’s plain language renders that conclusion implausible. Section 1357(d) does not authorize or define detainers. Instead, it provides that, under certain circumstances, an immigration officer must promptly determine “whether or not to issue a detainer” for an alien arrested for a controlled substances offense. § 1357(d)(3). In fact, nothing about the structure or text of the INA suggests that § 1357(d) is the sole source of ICE’s authority to issue detainers to facilitate the arrest and detention of suspected removable aliens.
A
The majority concludes that § 1252(f)(1) does not apply to provisions that fall outside of part IV of the INA. Maj. Op. 40–41. But § 1252(f)(1) does not insulate provisions from injunctive relief; it insulates the operation of those provisions. Thus, § 1252(f)(1) bars classwide injunctive relief that restrains “the operation of” provisions within part IV of the INA, even if ICE’s authority to enforce the provisions of part IV comes, in part, from provisions that are

subpoena, summons, or other process, § 1357(a)(5)(B); administering oaths and taking evidence, § 1357(b); warrantless searches of the person and of personal effects in the possession of any person seeking admission to the United States, § 1357(c); fingerprinting and photographing certain aliens, § 1357(f); and entering agreements with state and local governments for their officers or employees to function as immigration officers for the investigation, apprehension, or detention of aliens, § 1357(g).

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not within part IV. See § 1252(f)(1) (emphasis added). The statute reads:
(f) Limit on injunctive relief

(1) In general

Regardless of the nature of the action or claim or of the identity of the party or parties bringing the action, no court (other than the Supreme Court) shall have jurisdiction or authority to enjoin or restrain the operation of the provisions of part IV of this subchapter . . . other than with respect to the application of such provisions to an individual alien against whom proceedings under such part have been initiated.

§ 1252(f)(1). By barring the lower courts from issuing classwide relief that “enjoin[s] or restrain[s] the operation of the provisions of part IV,” id., Congress requires the lower courts to determine whether the requested relief has the effect of enjoining or restraining the operation of the provisions at issue; if so, then the lower courts lack jurisdiction to grant that relief.3 See Reno v. Am.-Arab AntiDiscrimination Comm., 525 U.S. 471, 481–82 (1999) (“By its plain terms, and even by its title, [§ 1252(f)(1)] is nothing more or less than a limit on injunctive relief. It prohibits

3 Thus, in Gonzales v. Department of Homeland Security, when analyzing whether an injunction restricting DHS from unlawfully denying adjustment of status applications ran afoul of § 1252(f)(1), this court held that § 1252(f)(1) did not apply because the injunction only enjoined or restrained the operation of “[a] provision which falls under part V.” 508 F.3d 1227, 1233 (9th Cir. 2007).

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federal courts from granting classwide injunctive relief against the operation of §§ 1221–1231, but specifies that this ban does not extend to individual cases.”).
The majority, however, does not undertake this analysis. Instead, in its view, § 1252(f)(1) is inapplicable unless the object of the requested relief—in this case a detainer—is mentioned in a provision that appears in part IV. Thus, the majority erroneously focuses exclusively on what it considers the source of the detainer power without regard for the effects of restricting that power. See, e.g., Vazquez Perez v. Decker, 18-cv-10683, 2019 WL 4784950, at *5 (S.D.N.Y. Sept. 30, 2019) (“The relevant inquiry, then, is whether the . . . injunctive relief [the plaintiff] seeks on a classwide basis would enjoin or restrain the method or manner of functioning of Sections 1221–1232.”). Even if some provision outside part IV authorizes immigration detainers, we must go further and ask whether the classwide injunctions sought here, by restricting ICE’s ability to apprehend and detain suspected removable aliens, impose “limitations on what the government can . . . do under the removal and detention provisions.” Hamama v. Adducci, 912 F.3d 869, 880 (6th Cir. 2018).
Although the § 1252(f)(1) inquiry may involve locating the statute authorizing the conduct at issue, that is not the whole inquiry. The ultimate question is not simply whether the authority for that conduct comes from part IV, but whether a court order restricting that conduct “enjoin[s] or restrain[s] the operation of” part IV. § 1252(f)(1) (emphasis added). If the majority reached this question, it could not avoid concluding that the classwide relief Plaintiffs request directly implicates ICE’s statutory charge under part IV to apprehend and detain suspected removable aliens because it restricts ICE’s power to issue detainers, which serve “the

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purpose of arresting and removing [] alien[s].” Mendia v. Garcia, 768 F.3d 1009, 1011 (9th Cir. 2014) (quoting 8 C.F.R. § 287.7(a)).
B
Moreover, the majority ties its analysis of § 1252(f)(1) to what it apparently considers the source of ICE’s authority to issue detainers, § 1357(d). Because this is the only INA provision that explicitly mentions detainers, and because § 1357(d) falls outside part IV, the majority concludes that the analysis is complete and § 1252(f)(1) does not apply. Maj. Op. 44. I disagree. Even if we assume that the § 1252(f)(1) inquiry turns on the source of the detainer power, it is implausible that ICE’s power to issue immigration detainers stems entirely from § 1357(d).
That provision, entitled “Detainer of aliens for violation of controlled substances laws,” reads:
In the case of an alien who is arrested by a Federal, State, or local law enforcement official for a violation of any law relating to controlled substances, if the official (or another official)—

(1) has reason to believe that the alien may not have been lawfully admitted to the United States or otherwise is not lawfully present in the United States,
(2) expeditiously informs an appropriate officer or employee of the Service authorized and designated by the Attorney General of the arrest and of facts concerning the status of the alien, and

GONZALEZ V. USICE

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(3) requests the Service to determine promptly whether or not to issue a detainer to detain the alien,
the officer or employee of the Service shall promptly determine whether or not to issue such a detainer. If such a detainer is issued and the alien is not otherwise detained by Federal, State, or local officials, the Attorney General shall effectively and expeditiously take custody of the alien.

§ 1357(d).
Although it uses the term “detainer” in its title and three more times in its text, § 1357(d) never defines the term. The statute seems to assume that there are standards to guide an officer in “determin[ing] whether or not to issue such a detainer,” but it does not provide or point to any standards itself. Id. In fact, § 1357(d) never explicitly authorizes the issuance of detainers at all—even though the same statute enumerates, in three other places, actions that “[a]ny officer of employee of the Service . . . shall have the power” to take. § 1357(a)–(c) (emphasis added); see Russello v. United States, 464 U.S. 16, 23 (1983) (“[W]here Congress includes particular language in one section of a statute but omits it in another section of the same Act, it is generally presumed that Congress acts intentionally and purposely in the disparate inclusion or exclusion.” (alteration in original) (citation omitted)). Nothing in the text of § 1357(d) suggests that it is the source of congressional authorization for ICE to issue detainers; rather, it simply mandates ICE’s prompt response to detainer requests under certain, very specific circumstances involving controlled substances offenses.

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To conclude otherwise by disregarding the plain language of § 1357(d) and interpreting it as the sole source of ICE’s detainer authority—rather than as a requirement for ICE to respond promptly to detainer requests in cases involving controlled substances offenses—carries troubling implications. If § 1357(d) is the sole source of authorization for immigration detainers, future plaintiffs could argue that ICE acts ultra vires whenever it issues a detainer for a suspect who was not arrested for a controlled substance offense. See, e.g., Comm. for Immigrant Rts. of Sonoma Cnty. v. County of Sonoma, 644 F. Supp. 2d 1177, 1198 (N.D. Cal. 2009) (rejecting plaintiffs’ argument “that [8 C.F.R.] § 287.7 is facially invalid because its authorizing statute, § 1357, limits ICE’s authority to issue detainers for aliens in custody for violating laws relating to controlled substances”).4 Such an argument would have far-reaching consequences, and although unsupported by the plain language of INA provisions at issue, it would seem to garner support from the majority’s conclusion that § 1357(d) is the sole source of ICE’s detainer authority.
In contrast to what the text of § 1357(d) actually provides, the majority’s citation to McLean v. Crabtree, 173 F.3d 1176, 1185 n.12 (9th Cir. 1999), bears little weight. There, the court noted in dicta that “[t]he INS has authority to lodge a detainer against a prisoner under 8 U.S.C. § 1357(d).” Id. Thus, the court in McLean suggested that § 1357(d) is a source of detainer authority, but it certainly did not hold that it is the only source.

4 Perhaps recognizing these implications, the majority cites Commission for Immigrant Rights, 644 F. Supp. 2d at 1199, but concludes that it need not decide whether the regulation authorizing detainers, 8 C.F.R. § 287.7, is valid. Maj. Op. 42 n.16.

GONZALEZ V. USICE

75

The majority also notes that 8 U.S.C. § 1103 authorizes DHS “to promulgat[e] regulations to carry out the provisions of the INA,” but asserts that “[w]hat matters here is that that general grant of authority is not located in ‘Part IV.’” Maj. Op. 42 n.16. Thus, the majority seems to suggest that, even if we consider § 1103 an additional or alternative source of ICE’s detainer power, § 1252(f)(1) does not bar the classwide relief Plaintiffs request because § 1103 is not in part IV of the INA.5 But grounding ICE’s detainer power in § 1103—a “general grant of power to administer and enforce all immigration laws,” Castaneda-Gonzalez v. INS, 564 F.2d 417, 423 (D.C. Cir. 1977)—does not answer whether § 1252(f)(1) bars the relief Plaintiffs request. Section 1103 is ultimately the statutory source of all of ICE’s authority, including ICE’s detainer authority, but that does not mean that ICE does not also derive its detainer authority from other provisions of the INA, including part IV, which authorizes the “Inspection, Apprehension, Examination, Exclusion, and Removal” of aliens.
Although we need not determine the sources of ICE’s detainer authority to determine whether enjoining that authority “enjoin[s] or restrain[s] the operation of the provisions of part IV,” § 1252(f)(1), we can nonetheless avoid all these problems of the majority’s approach by acknowledging that the power to issue detainers—that is, to request that another law enforcement officer detain a suspect—arises impliedly from the INA statutes authorizing

5 This argument also fails for the same reason the majority’s arguments based on § 1357(d) fail: even if the source of ICE’s detainer authority is outside part IV, a restriction on ICE’s ability to use detainers “enjoin[s] or restrain[s] the operation of the provisions of part IV,” § 1252(f)(1), because it restrains ICE’s ability to arrest and detain suspected removable aliens.

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officers to arrest and detain suspects themselves. See, e.g., Santoyo v. United States, No. 5:16-CV-855-OLG, 2017 WL 6033861, at *3 & n.3 (W.D. Tex. Oct. 18, 2017) (collecting cases and concluding that “[a]lthough no other provision of the INA specifically authorizes the issuance of detainer requests, that authority predates the INA and has long been viewed as implied by federal immigration enforcers’ authority to arrest those suspected of being removable.”). Indeed, this is the Department of Homeland Security’s interpretation of the statutes it administers.6 The Department has stated that it issues detainers “pursuant to sections 236 [8 U.S.C. § 1226] and 287 [8 U.S.C. § 1357] of the Act.” 8 C.F.R. § 287.7(a).
Section 1357 is not in part IV, but § 1226 is, and its broad authorization to arrest and detain aliens accords with the conclusion that the detainer power stems from ICE’s arrest and detention powers under part IV. Compare 8 U.S.C. § 1226(a) (“On a warrant issued by the Attorney General, an alien may be arrested and detained pending a decision on whether the alien is to be removed from the United States.”), with 8 C.F.R. § 287.7(a) (stating that detainers serve “the purpose of arresting and removing the alien”).7 Thus, even under the majority’s flawed approach

6 The government has not argued for Chevron deference, and the majority appropriately declines to reach this issue. See, e.g., Neustar, Inc. v. FCC, 857 F.3d 886, 893–94 (D.C. Cir. 2017). Nonetheless, the Department’s interpretation of its detainer authority in the INA presents, by far, the most reasonable approach.
7 The majority suggests that § 1226 is inapplicable because it only explicitly authorizes DHS to arrest aliens, and “critically, neither DHS, nor ICE arrests or detains any individual by issuing an immigration detainer.” Maj. Op. 45. But this misses the point that what the statute authorizes DHS to do directly, it impliedly authorizes DHS to do through

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77

of applying § 1252(f)(1)’s bar only to law enforcement tools that part IV itself authorizes, it should have concluded that classwide relief was barred here because part IV does authorize detainers, albeit impliedly, when it authorizes ICE to arrest and detain suspected removable aliens.
II
The majority’s approach overlooks § 1252(f)(1)’s insulation of “the operation of” the immigration enforcement provisions in part IV of the INA from judicial classwide injunctions. §1252(f)(1). And because the majority misapplies its own purportedly textualist approach, it erroneously concludes that the sole source of ICE’s entire detainer power is a statute that merely requires officers to promptly decide whether to issue detainers for aliens arrested for controlled substances offenses. Because the majority’s approach misreads § 1252(f)(1) and opens the door to sweeping challenges to basic tools of immigration enforcement, I respectfully dissent.

cooperative state and local law enforcement. Rather than engage with this point, the majority employs circular reasoning: § 1226 cannot impliedly authorize detainers because § 1226 contains no explicit authorization for detainers.

 
 Roy v. County of Los Angeles, Not Reported in Fed. Supp. (2018) 2018 WL 3436887

2018 WL 3436887 Only the Westlaw citation is currently available.
United States District Court, C.D. California.
Duncan ROY, et al., Plaintiffs, v.
COUNTY OF LOS ANGELES, et al., Defendants. Gerardo Gonzalez, et al., Plaintiffs, v.
Immigration and Customs Enforcement, et al., Defendants.
Case No. CV 12-09012-AB (FFMx) |
Consolidated with: Case No. CV 13-04416-AB (FFMx) |
Signed 07/11/2018
Attorneys and Law Firms
Ahilan T. Arulanantham, Peter Bibring, Peter J. Eliasberg, Jennifer L. Pasquarella, ACLU Foundation of Southern California, Chris Newman, Jessica Karp Bansal, National Day Labor Organizing Network, Los Angeles, CA, Barrett S. Litt, Kaye McLane Bednarski and Litt LLP, Pasadena, CA, Cecillia D. Wang, Cody H. Wofsy, ACLU Foundation Immigrants Rights Project, San Francisco, CA, Mark M. Fleming, Pro Hac Vice, National Immigrant Justice Center, Chicago, IL, Omar C. Jadwat, Pro Hac Vice, Spencer E. W. Amdur, Pro Hac Vice, ACLU Immigrants’ Rights Project, New York, NY, for Plaintiffs.
Jin S. Choi, Oscar Andres Bustos, Paul B. Beach, Justin W. Clark, Lawrence Beach Allen & Choi, Glendale, CA, Ahilan T. Arulanantham, Jennifer L. Pasquarella, Peter J. Eliasberg, ACLU Foundation of Southern California, Chris Newman, Jessica Karp Bansal, National Day Labor Organizing Network, Los Angeles, CA, Barrett S. Litt, Lindsay Battles, Kaye McLane Bednarski and Litt LLP, Pasadena, CA, Cecillia D. Wang, ACLU Foundation Immigrants Rights Project, San Francisco, CA, Omar C Jadwat, Pro Hac Vice, ACLU Foundation Immigrants Rights Project, New York, NY, for Defendants.
1

ORDER DENYING DEFENDANTS’ MOTION FOR DECERTIFICATION OF THE CLASSES
ANDRÉ BIROTTE JR., UNITED STATES DISTRICT COURT JUDGE
I. INTRODUCTION *1 This action involves two cases that have been consolidated: Duncan Roy, et al. v. County of Los Angeles, et al., No. 12-cv-09012-AB-FFM and Gonzalez v. Immigration & Customs Enforcement, et al., No. 13-cv-04416-AB-FFM (both cases are now proceeding under No. 12-cv-09012-AB-FFM). The remaining Plaintiffs in the Roy action at the time the Court considered the recent summary judgment motions were Clemente De La Cerda and Alain Martinez-Perez (collectively, “Roy Plaintiffs”). The only remaining named Plaintiff in the Roy action after the Court issued its Order on the summary judgment motions (Dkt. No. 346) is Alain Martinez-Perez. Defendants in the Roy action are the County of Los Angeles and Sheriff Leroy D. Baca (collectively, “Roy Defendants” or the “County”). The County brings the instant Motion for Decertification of the Classes. (Dkt. No. 364 (“Mot.”).)
After considering the papers filed in support of and in opposition to the instant Motion, the Court DENIES the County’s Motion.
II. RELEVANT BACKGROUND On September 9, 2016, the Court granted, in part, the Roy Plaintiffs’ Motion for Class Certification. (See Dkt. No. 184.) The Court certified seven classes for the Roy action: (1) the False Imprisonment Equitable Relief Class; (2) the Gerstein Equitable Relief Class; (3) the False Imprisonment Damages Class; (4) the Post-48 Hour Gerstein Subclass; (5) the Investigative Detainer Class; (6) the No Bail Notation Class; and (7) the No-Money Bail Subclass. (Dkt. No. 184.)
On February 7, 2018, this Court granted in part and denied in part the Roy Defendants’ Motion for Summary

Roy v. County of Los Angeles, Not Reported in Fed. Supp. (2018) 2018 WL 3436887

Judgment, or Alternatively, Partial Summary Judgment (Dkt. No. 242) and granted in part and denied in part the Roy Plaintiffs’ Motion for Summary Adjudication Regarding Liability (Dkt. No. 240). (Dkt. No. 346.)
On March 30, 2018, the County filed the instant Motion for Decertification of the Classes. (Mot.) On April 13, 2018, the Roy Plaintiffs opposed. (Dkt. No. 375 (“Opp’n”).) And on April 27, 2018, the County replied. (Dkt. No. 380 (“Reply”).)
On May 7, 2018, the Roy Plaintiffs filed Consolidated Objections to Declarations of Gregory Sivard in Support of Los Angeles County’s Motion for Decertification. (Dkt. No. 384.) On May 8, 2018, the County filed its Response and Request to Strike Portions of Plaintiffs’ “Objections” to Declarations of Greg Sivard Re: Defendant’s Motion to Decertify the Damages Classes. (Dkt. No. 385.)1
III. LEGAL STANDARD Federal Rule of Civil Procedure 23(c)(1)(C) permits a court to alter or amend an order granting class certification at any point prior to the entry of final judgment. Fed. R. Civ. P. 23(c)(1)(C); Gen. Tel. Co. of Sw. v. Falcon, 457 U.S. 147, 160 (1982) (“Even after a certification order is entered, the judge remains free to modify it in the light of subsequent developments in the litigation.”). “In considering the appropriateness of decertification, the standard of review is the same as a motion for class certification: whether the Rule 23 requirements are met.” Marlo v. United Parcel Serv., Inc., 251 F.R.D. 476, 479 (C.D. Cal. 2008), aff’d, 639 F.3d 942 (9th Cir. 2011).
IV. DISCUSSION *2 The County argues that decertification is required because: (1) the predominance and superiority requirements of Rule 23(b)(3) cannot be satisfied; (2) the Roy Plaintiffs have not come forward with a viable trial plan; and (3) there is no class representative. (Mot.)
A. Whether Predominance and Superiority
2

Requirements of Rule 23(b)(3) Are Satisfied The County argues that predominance and superiority are lacking because (1) class members cannot be identified without individualized inquiries; (2) there is no way to reliably calculate and adjudicate damages for class members without individualized inquires; and (3) individualized inquiries will be required to adjudicate affirmative defenses.
1. Identification of Class Members
The County argues that “each release is unique, and that there is no way to determine whether an inmate was over-detained without specifically reviewing the details of an inmate’s release including, in some circumstances, both electronic and paper records.” (Mot. at 8; Reply at 5.) By this statement, the County acknowledges that it is possible to determine release dates based upon review of electronic and paper records. Case law does not require that the information used to identify class members be contained in electronic records. Rule 23 simply requires clear criteria by which class members can be identified and does not require administrative convenience or feasibility. See Briseno v. ConAgra Foods, Inc., 844 F.3d 1121, 1123 (9th Cir. 2017), cert. denied sub nom. ConAgra Brands, Inc. v. Briseno, 138 S. Ct. 313 (2017) (“Fed. R. Civ. P. 23(a) ... identifies the prerequisites to maintaining a class action in federal court. It does not mention ‘administrative feasibility’ ”). Adopting the County’s argument that class certification is not warranted because the County does not maintain electronic records would provide an avenue for entities to escape class liability−they could simply maintain paper records. This is not, and should not be the law. Merely because this might prove to be an arduous task for the County does not mean that the County should be permitted to escape class liability or potential class liability on this basis.
The County also argues “that the vast majority of inmates released from County jail are released before they serve 100% of their sentence on a state criminal charge(s).” (Mot. at 8 (emphasis omitted).) The County asserts that “[t]herefore, depending on the circumstance and the individual inmate’s criminal history, a fact specific analysis will be required to determine whether a lawful basis existed for each potential class member’s detention in County jail (and the actual end-date of their criminal sentence), even if that detention extended beyond their ‘expected release’ date.” (Mot. at 8.) It appears that the

Roy v. County of Los Angeles, Not Reported in Fed. Supp. (2018) 2018 WL 3436887

County is misconstruing the Roy Plaintiffs’ method of determining which individuals were “over-detained.” The Roy Plaintiffs clarify that the County “ha[s] long known (since May 2016) [that] Plaintiffs calculate over-detentions for sentenced inmates based solely on the time inmates remained incarcerated after their sentence actually expired (i.e. after their statutory maximum release date); the jail’s early release policies and timetables were not considered in determining the date inmates were entitled to release.” (Opp’n at 3–4.) Thus, “Plaintiffs do not count as over-detentions thousands of individuals who became due for release prior to expiration of their sentence pursuant to early release policies but were not immediately released due to an immigration detainer, even though similarly situated inmates without immigration detainers would have been released.” (Opp’n at 4.) Thus, the Court rejects the County’s arguments that such inquiries into the inmates’ release dates and comparison of these release dates to the inmates’ maximum sentences would defeat class certification.
*3 Finally, the Court previously determined that predominance as to liability is satisfied as to the No-Money Bail Class, and the No-Bail Notation Class. (See Dkt. No. 184.) Because there is no basis to change the Court’s previous rulings on these issues at this time, the Court maintains that predominance as to liability still exists, and does not find that predominance and superiority are lacking based on the County’s argument that class members cannot be identified without individualized inquires.2

2. Calculation of Damages

The bulk of the County’s Motion argues that the classes

should be decertified on the basis that predominance

cannot be satisfied in the absence of some appropriate

common method for calculating class-wide damages.

(Mot. at 10–19.) The Roy Plaintiffs argue that class-wide

damages are available here: general damages and

presumed damages. (Opp’n.) They further argue that

“even if the Court were to reject both of these approaches

to

class-wide

damages[−general

and

presumed−decertification would be improper because

individual damage assessments do not defeat

predominance.” (Opp’n at 1.)

In its Reply, the County relies upon a Central District of California case, Amador v. Baca, 299 F.R.D. 618, 630–35 (C.D. Cal. 2014), to argue that general and presumed
3

damages are not available here. (Reply at 10–12.) Much of the County’s discussion, however, focuses on presumed damages, not general damages. (See, e.g., Reply at 10 (“Judge Wilson rejected the concept that presumed damages have any application in § 1983 cases where, as here, an individual’s damages are not difficult to establish.”), 11 (“Judge Wilson’s analysis continued with a review of Supreme Court authorities relevant to the issue of presumed damages, noting that presumed damages in the context of common law defamation have been labeled ‘an oddity of tort law, for it allows recovery of purportedly compensatory damages without evidence of actual loss.’ ”).) While the discussion in Amador to which the County refers discusses “general damages,” the conflation of presumed damages and general damages here is not appropriate, as they are distinct concepts and categories of damages. (Reply at 11–12.)
Other district court decisions from this district recognize presumed and general damages as distinct categories of damages, and have found that general damages may be available on a class-wide basis in § 1983 actions based upon unlawful detention. See Rodriguez v. City of Los Angeles, No. CV 11-01135 DMG (JEMx), 2014 WL 12515334, at *1, *5–7 (C.D. Cal. Nov. 21, 2014) (denying the defendants’ motion for class decertification and recognizing that general damages, distinct from presumed damages, may be available on a class-wide basis in a § 1983 action based on unlawful detentions); see also Aichele v. City of Los Angeles, 314 F.R.D. 478, 496 (C.D. Cal. 2013) (certifying § 1983 over-detention class action and finding that general damages are available on a class-wide basis). The Court agrees with these decisions and finds that general damages are available on a class-wide basis here.
*4 “At this stage, the question is only whether [Plaintiffs have] presented a workable method [for calculating class-wide damages].” We conclude that [they] have.” Lambert v. Nutraceutical Corp., 870 F.3d 1170, 1184 (9th Cir. 2017). As such, the Court rejects the County’s arguments that decertification is warranted here based on damages issues.
3. Adjudication of Affirmative Defenses
The County argues that individualized inquiries will be required to adjudicate affirmative defenses, and thus, the classes should be decertified. (Mot. at 20.) This Court previously held that “class certification will not prevent

Roy v. County of Los Angeles, Not Reported in Fed. Supp. (2018) 2018 WL 3436887

the Roy [D]efendants from presenting individualized affirmative defenses.” (Dkt. No. 184 at 34 (citing Mullins v. Direct Digital, LLC, 795 F.3d 654, 671 (7th Cir. 2015) (“As long as the defendant is given the opportunity to challenge each class member’s claim to recovery during the damages phase, the defendant’s due process rights are protected.”) ).)
Moreover, the only affirmative defense that the County addresses in its Motion to demonstrate that affirmative defenses would defeat predominance and superiority is the application of the Prison Litigation Reform Act (“PLRA”). The County argues that the PLRA applies here and that “inmate litigants are barred from recovering damages for emotional distress, absent a showing of a physical injury.” (Mot. at 20.) The County asserts that “potential class members would be required to prove the existence of a physical injury before they could recover damages for emotional distress, which would be a highly individualized inquiry.” (Mot. at 20–21.) Notably, the Court has already rejected the County’s argument that the PLRA’s physical injury requirement applies here. (Dkt. No. 184 at 37–38.) The Court again rejects this argument.
B. Whether Plaintiffs’ Trial Plan is Sufficient at this Stage in Litigation The County argues that the classes should be decertified on the basis that the Roy Plaintiffs do not have a viable trial plan. Because the Court finds that the Roy Plaintiffs have provided a sufficient trial plan for this stage in the litigation (see Dkt. No. 366)−demonstrating that liability determinations and damages determinations (based on general damages) are available on a class-wide basis, the Court rejects the County’s arguments on this point.

on his behalf prior to his transfer to ICE custody on December 20, 2011.” (Mot. at 23 (citing Dkt. No. 243-1 (Defendant’s Separate Statement of Undisputed Material Facts) ).) According to the County, “[w]ithout any such evidence, any claim based on the allegation that he was not allowed to post bail is not cognizable as a matter of law and therefore, he is not an adequate class representative.” (Mot. at 23.) Again, the County raised this same argument during the recent summary judgment litigation, and this Court rejected it. (Dkt. No. 346 at 42 (recognizing that the Roy Plaintiffs’ theory of “liability does not hinge on whether the LASD specifically communicated to any individual that they could not post bail due to an ICE detainer, but rather, liability turns on whether [the] LASD’s practice of characterizing all ICE detainers as ‘no bail’ holds effectively denied ICE-hold inmates the right to post bail”).)
*5 The County also contends that Plaintiff Martinez-Perez “was not held more than 48 hours (excluding weekends) beyond his ‘release date.’ ” (Mot. at 23–24 (citing Dkt. No. 243-1) (emphasis added).) The County seems to argue that based upon this, he is not an adequate representative for the Post-48 Hours Gerstein Subclass, yet, the County’s argument is not clear on this point. (See Mot. at 23–24.) This argument misrepresents the Roy Plaintiffs’ definition of the Post-48 Hours Gerstein Subclass, as the Roy Plaintiffs have defined this class as those held beyond 48 hours including weekends and holidays. (See Dkt. Nos. 184, 346.)
V. CONCLUSION For the foregoing reasons, the Court DENIES the County’s Motion for Decertification of the Classes.

IT IS SO ORDERED.

All Citations

C. Whether Plaintiff Martinez-Perez is an Adequate

Representative

Not Reported in Fed. Supp., 2018 WL 3436887

The County contends that Plaintiff Martinez-Perez is not

an adequate class representative because “the undisputed

evidence is that he was not aware of any effort to post bail

Footnotes

1

In its response, the County argues that portions of the Roy Plaintiffs’ consolidated objections are a sur-reply, and

should be stricken as such. The Court DENIES the County’s request to strike portions of the Roy Plaintiffs’

consolidated objections.

4

Roy v. County of Los Angeles, Not Reported in Fed. Supp. (2018) 2018 WL 3436887

2

The Court has reviewed the County’s Notice of Supplemental Authority, Plaintiffs’ Response, and the County’s

Objection. (Dkt. Nos. 388–89, 390.) The Court does not find Victorino v. FCA US LLC, No. 16cv1617–GPC(JLB), 2018

WL 2967062 (S.D. Cal. June 13, 2018), analogous to the instant case. The Court DENIES as moot the County’s

request to strike or decline to consider Plaintiff’s response, as the Court has reached this decision after reviewing

and considering Victorino and the other authority discussed in the County’s Notice of Supplemental Authority.

5

 
 Case 2:12-cv-09012-AB-FFM Document 610 Filed 11/25/20 Page 1 of 147 Page ID #:21116

1

2

3

4

5

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7

8

UNITED STATES DISTRICT COURT

9 CENTRAL DISTRICT OF CALIFORNIA
10

11 DUNCAN ROY, et al.,

Case No. CV 12-09012 (FFMx)

12

Plaintiffs,

13

14

vs.

[Honorable André Birotte, Jr.]
[PROPOSED] PRELIMINARY APPROVAL ORDER; EXHIBITS

15 COUNTY OF LOS ANGELES, et al.,
16
Defendants.
17

Date: November 20, 2020 Time: 10:00 a.m. Place: Courtroom 10A

18

19

20

21

22

23

24

25

26

27

28

Case 2:12-cv-09012-AB-FFM Document 610 Filed 11/25/20 Page 2 of 147 Page ID #:21117

1

The parties have submitted this joint Preliminary Approval Order of the

2 Class Settlement for the Court’s review. Upon review and consideration of the

3 Settlement Agreement (Exhibit A hereto) (the “Settlement Agreement”) and the

4 exhibits attached thereto made and entered into by counsel for the parties, who

5 represent that their respective clients have approved the settlement.

6

The Named Plaintiffs/Class Representatives are Alain Martinez-Perez and

7 Clemente de la Cerda. Plaintiffs are former prisoners of the Los Angeles County

8 Sheriff’s Department (“LASD”), whose claims arose from the LASD’s policy of

9 detaining inmates beyond the expiration of their state criminal charges on the basis

10 of immigration detainers (“detainers” or “ICE holds”), which are issued by

11 Immigration and Customs Enforcement (“ICE”) for suspected immigration

12 violations. Plaintiffs specifically challenged: 1) LASD’s practice of holding

13 inmates on detainers after they became due for release on criminal matters (i.e.

14 after they were acquitted or otherwise ordered released by a judge, or after serving

15 a jail sentence); 2) LASD’s practice of incarcerating arrestees with bail of less

16 than $25,000 who, in the absence of an immigration detainer, would have been 17 released on their own recognizance pursuant to LASD policy; and 3) LASD’s

18 (disputed) practice of refusing to accept bail on behalf of inmates with immigration

19 detainers.

20

While Defendants continue to dispute the validity of Plaintiffs’ allegations,

21 the parties have agreed to enter into a Settlement Agreement to avoid the mutual

22 risks of litigation.

23

IT IS HEREBY ORDERED, ADJUDGED AND DECREED THAT:

24 I.

PRELIMINARY APPROVAL OF SETTLEMENT

25

1. This Order incorporates by reference the definitions in the Settlement

26 Agreement, a copy of which is attached to this Order as Exhibit A, and also

27 incorporates Exhibits B through D, thereto. All terms defined therein shall have

28 the same meaning in this Order.

1

Case 2:12-cv-09012-AB-FFM Document 610 Filed 11/25/20 Page 3 of 147 Page ID #:21118

1

2. The Settlement Agreement is hereby preliminarily approved, subject

2 to further consideration thereof at the Fairness Hearing provided for below. The

3 Court finds that the class settlement fund of $14,000,000 and its proposed

4 allocation, and the other provisions contained within the Settlement Agreement,

5 are within the range of what would constitute a fair, reasonable, and adequate

6 settlement in the best interests of the Class as a whole, and that the terms of the

7 Settlement Agreement otherwise satisfy the Federal Rules of Civil Procedure 23(e)

8 and due process requirements.

9 II.
10

DEADLINES FOR NOTICE, FILING OBJECTIONS AND OPTOUTS, AND DATE OF FAIRNESS HEARING

11

3. The Court has set the following dates for purposes of this class action:

12

(a) Final class identifying information, to the extent not already provided,

13

will be provided to Class Administrator Heffler Claims Group no later

14

than Friday, November 27, 2020;

15

(b) Friday, November 27, 2020: Class member website shall be

16

established and reflect preliminary approval order and provide a

17

means for Class Members to submit claims online;

18

(c) Friday, January 8, 2021 (or earlier): Class Notice shall be issued by

19

U.S. mail, and electronically by email, text message and social media

20

(for all Class Members whose contact information can be obtained);

21

skip tracing shall have been completed prior to that date.

22

(d) Friday, January 8, 2021 (or earlier): The LASD will advise on its

23

website of the existence of this Settlement and place a link on the

24

website to connect viewers to the Class Administrator’s website. The

25

LASD will also post physical notices (whose content will be agreed

26

on) in all LA County jail facilities, including IRC, MCJ, Twin Towers

27

and CRDF.

28

(e) Pursuant to a separately filed motion and order thereon, physical

2

Case 2:12-cv-09012-AB-FFM Document 610 Filed 11/25/20 Page 4 of 147 Page ID #:21119

1

notices be posted at the Adelanto ICE Processing Center, NB18,

2

Musick, Theo Lacey and any other ICE detention facilities in

3

California.

4

(f) Friday, February 5, 2021: The Class Administrator will begin

5

periodically reminding Class Members through email/text blasts to

6

file claims;

7

(g) Friday, March 19, 2021: Filing of Plaintiffs’ Motion for Award of

8

Attorneys’ Fees and Costs;

9

(h) Friday, August 9, 2021: Deadline to file Class Members’ Objections

10

to any aspect of the Settlement (including Plaintiffs’ Motion for

11

Award of Attorneys’ Fees and Costs): Must be postmarked or

12

received by that date;

13

(i) Friday, August 9, 2021: Deadline to opt-out: Must be postmarked or

14

received by that date;

15

(j) Friday, August 9, 2021: Deadline to file class claims: Must be

16

postmarked or received by that date;

17

(k) Friday, September 3, 2021: Deadline to file Opposition or Reply to

18

Objections (including to objections to award of attorneys’ fees and

19

costs);

20

(l) Friday, September 3, 2021: Deadline to file proposed final approval

21

order and motion for final approval of settlement;

22

(m) Friday, October 1, 2021: Final Approval hearing.

23

4. In the event that the class notice is not communicated through text

24 message, email and regular mail by January 8, 2021, the subsequent dates

25 contained herein will be deferred for the number of additional days before such

26 notice occurs without the need for additional Court approval. However, the Court

27 must approve any change of the date of the Final Approval Hearing.

28

5. On September 9, 2016, the Court certified various damages classes.

3

Case 2:12-cv-09012-AB-FFM Document 610 Filed 11/25/20 Page 5 of 147 Page ID #:21120

1 Dkt. 184, 9/9/16 Class Cert Order. The class definitions were later modified to

2 conform to the liability determination. The classes are defined as follows:

3 Fourth Amendment (“Gerstein”) Class: All LASD inmates who were detained
4 beyond the time they are due for release from criminal custody, solely on the basis of immigration detainers, excluding inmates who had a final order of removal or
5 were subject to ongoing removal proceedings as indicated on the face of the
6 detainer. (Class period: 10/19/2010 to June 6, 2014).

7 Equal Protection Class (“No Money Bail Class”): All LASD inmates on whom

8

an immigration detainer had been lodged, who would otherwise have been subject to LASD’s policy of rejecting for booking misdemeanor defendants with bail of

9 less than $25,000 (including Order of Own Recognizance (OR)). (Class period:

10 10/19/2010 to June 6, 2014).

11 No-Bail-Notation Class: All LASD inmates on whom an immigration detainer had been lodged and recorded in LASD’s AJIS database, and who were held on
12 charges for which they would have been eligible to post bail. (Class period:
13 10/19/2010 to 10/18/2012).

14

6. The Parties have identified exclusively from Los Angeles County Jail

15 records Damages Class Members based on who qualifies as a Class Member. Only

16 persons so identified are Damages Class members. There are an estimated 18,571

17 Class Members and an estimated 71,580 unlawful detention days. (These are

18 estimated because identification of some Gerstein Class Members requires more

19 information than is contained in ICE data and will require reviewing LASD

20 booking jackets (which contain an inmate’s jail records) and locating the copy of

21 their immigration detainer form (I-247 form) LASD data.) Thus, class notice will

22 be sent to potential as well as confirmed Gerstein class members.

23

7. The “Class Damages Period” refers to the period between October 19,

24 2010 (two years before the filing of the complaint) and June 6, 2014.

25 III. SETTLEMENT TERMS.

26

8. In summary, the settlement’s basic terms, as they relate to Damages

27 Class Members, are that Defendants will provide payment of a total of Fourteen

28 Million dollars ($14,000,000). From that amount, the following awards will be

4

Case 2:12-cv-09012-AB-FFM Document 610 Filed 11/25/20 Page 6 of 147 Page ID #:21121

1 made, subject to court approval:

2

a. Incentive awards to the two Named Plaintiffs in the amount of $10,000

3

each (for a total of $20,000).

4

b. Payment of $1000 to each claiming Gerstein and Equal Protection (No

5

Money Bail) Class Member for each unlawful detention day, except that

6

no Class Member shall receive more than $25,000 total (or 25

7

overdetention days) even if their unlawful detention days would

8

otherwise result in more.

9

c. In addition, No Notation Bail class members who attest that they had

10

access to financial resources to post bail if had been allowed to do so will

11

receive a flat $250.

12

d. No claiming Class Member will receive less than $250.

13

e. The “Remainder” of the Class Fund, a term referring to the amount

14

available for distribution to Class Members, refers to the amount in the

15

Class Fund after payment of attorney’s fees and costs, litigation costs,

16

and mediation costs. The Remainder is a figure used for purposes of

17

determining whether cy pres payments (discussed below) are made. The

18

Remainder is estimated to amount to approximately $8,733,334, based on

19

the estimate of the maximum fees to be sought (1/3 of the $14,000,000

20

Class Fund), estimated litigation costs ($200,000) and estimated class

21

administration costs ($400,000).

22

f. Each Class Member’s share of the Remainder of the class fund depends

23

on the number of Class Members who make Timely Claims, multiplied

24

by the number of unlawful detention days attributable to each claiming

25

Class Member. This will be converted into a point system, with one point

26

per unlawful detention day. To the extent that fewer Class Members

27

make a claim, the money per Class Member making a Timely Claim will

28

increase proportionately, up to a per-day maximum of $1000 and a

5

Case 2:12-cv-09012-AB-FFM Document 610 Filed 11/25/20 Page 7 of 147 Page ID #:21122

1

maximum total payment per Class Member of $25,000. See Settlement

2

Agreement, ¶¶ 21-25.

3

g. Should the Remainder not be consumed by the points allocated to

4

claiming Class Members, limited as indicated in sub-paragraph (b), any

5

residual funds will be allocated as cy pres payments as set forth in §VII,

6

below.

7

h. The parties and the Court recognize that there is the possibility of an

8

unusually low claims rate in this case, due in large part to the fact that a

9

significant percentage of Class Members were transferred to ICE custody

10

and subsequently deported. These individuals are likely living abroad and

11

may be difficult or impossible to locate. Even those Class Members who

12

were released (and not deported) may be reluctant to come forward to

13

pursue claims against the LASD. Accordingly, as a form of indirect

14

compensation to absent Class Members, if there are funds left after

15

paying out the maximum Class Member compensation ($1000 per day of

16

overdetention, capped at $25,000 for any Class Member), the balance of

17

the available funds will be cy pres funds split 50/50 between

18

organizations/activities designated by Plaintiffs (and reasonably approved

19

by the County) and organizations/activities designated by the County

20

(and reasonably approved by the Plaintiffs).

21

i. Although each party designates the recipient of 50% of cy pres funds,

22

those funds may only be used to fund Los Angeles County programs that

23

provide legal representation to persons facing immigration consequences

24

because of a criminal arrest or conviction in Los Angeles County, and

25

must augment (emphasis in settlement agreement) the funding already

26

provided by the County of Los Angeles to support activities that these

27

programs would not be able to pursue without the cy pres funds. The

28

parties are to work in good faith to reach an agreement regarding the

6

Case 2:12-cv-09012-AB-FFM Document 610 Filed 11/25/20 Page 8 of 147 Page ID #:21123

1

organizations or programs to receive those funds based on the foregoing

2

criteria. If they cannot agree, the Parties will separately brief the Court,

3

and the Court will determine the organizations and/or programs to which

4

the cy pres funds will be paid, consistent with identified criteria

5

j. The settlement is non-reversionary. None of the Class Fund shall revert

6

to the LASD or be used to fund LASD programs. No cy pres funds may

7

be used to supplant or replace County funding already provided by the

8

Board of Supervisors.

9

k. Payment of the third-party class settlement administration costs to the

10

chosen class administrator, Heffler Claims Group, estimated at a

11

maximum of approximately $350,000. In addition to the Claims

12

Administrator, Plaintiffs anticipate costs of up to $50,000 for

13

community-based outreach in Mexico and Central America. However,

14

depending on the response rate to the notice, Plaintiffs’ counsel may

15

request additional outreach, which would increase the cost.

16

l. Plaintiffs will file a motion for attorney’s fees and costs to be approved

17

by the court. The settlement agreement provides that Plaintiffs’ counsel

18

may request up to 1/3 of the class fund but not more, plus reimbursement

19

of litigation costs. The final determination of the appropriate attorney’s

20

fee will be made by the Court.

21

m. The remainder of the Class Fund (estimated as a minimum of over $8

22

Million assuming class notice related costs do not exceed $400,000) shall

23

be distributed to the Class Members (including Named Plaintiffs/Class

24

Representatives) under the formula contained in sub-paragraph Section

25

VI, ¶¶ 21-25 of the Settlement Agreement (Exhibit A to the proposed

26

Preliminary Approval Order), or to cy pres funding.

27

9. Once the claims period closes, the claims administrator will calculate

28 the total points for each Class Member and total points for all claiming Class

7

Case 2:12-cv-09012-AB-FFM Document 610 Filed 11/25/20 Page 9 of 147 Page ID #:21124

1 Members who submitted timely claims. Each Class Member’s recovery will be

2 determined based on that Class Member’s percentage of the total points for all

3 Class Members, subject to the maximum per diem and per Class Member

4 compensation provided in the Settlement Agreement.

5 IV. CLASS ADMINISTRATOR

6

10. The Court approves the retention of Heffler Claims Group as Class

7 Administrator, to administer the distribution of the Class and Settlement Notice

8 and publication of the Class and Settlement Notice, and to distribute the proceeds

9 of the settlement to all eligible Class Members pursuant to the Plan set out in the

10 Settlement Agreement (Exhibit A) should the Court grant final approval. Exhibit

11 D (the Class Administrator bid) includes Heffler’s qualifications, notice proposal

12 and pricing.

13

11. The Class Administrator shall preserve all written communications

14 from Class Members in response to the Class and Settlement Notice at least until

15 December 31, 2024, or pursuant to further order of the Court. All written

16 communications received by the Class Administrator from Class Members relating

17 to the Settlement Agreement shall be available at all reasonable times for

18 inspection and copying by Counsel for the Parties, and copies shall be regularly

19 provided to Counsel for the Parties.

20

12. The Class Administrator shall be compensated from the Class

21 Damages Fund for its services in connection with notice and administration and

22 for the costs of giving mailed and published notice, and the other services it

23 performs, pursuant to such orders as the Court may enter from time to time.

24

13. Within two weeks after this Preliminary Approval Order is signed by

25 the Court, the County of Los Angeles shall deposit or cause to be deposited into an

26 account designated by the Class Administrator by check sent by overnight mail an

27 amount of same day available funds equal to the amount requested by the Class

28 Administrator to cover the costs of notice as provided herein, and will provide

8

Case 2:12-cv-09012-AB-FFM Document 610 Filed 11/25/20 Page 10 of 147 Page ID #:21125

1 additional funds for its administrative work pursuant to the terms of its accepted

2 bid, a copy of which is attached as Exhibit D. Prior to entry of the Final Order of

3 Approval of Settlement, the Class Administrator will not accrue any costs not

4 itemized in Exhibit D unless agreed to by the Plaintiffs’ counsel and approved by

5 the Court. If the Court does not enter the Final Order of Approval and Settlement,

6 then all such funds paid to the Class Administrator, to the extent they are available

7 after payment of all accrued class administration expenses, shall be returned to

8 Defendants.

9

14. If this settlement does not go through for any reason, a new settlement

10 is not reached, the case goes to trial, and Plaintiffs are not successful in their

11 prosecution of the case, Defendants shall not seek reimbursement from Plaintiffs

12 of class administration funds paid under this settlement.

13 V.

CLASS COUNSEL

14

15. Barrett S. Litt and Lindsay Battles of Kaye, McLane, Bednarski &

15 Litt, Jennifer Pasquarella and Jessica Bansal of the ACLU of Southern California,

16 and Mark Fleming of the National Immigrant Justice Center and Chris Newman of

17 the National Day Laborer Organizing Network are hereby confirmed as counsel

18 for the Class Representatives and the Class (“Class Counsel”).

19

16. Class Counsel are authorized to act on behalf of the Class with respect

20 to all acts or consents required by or which may be given pursuant to the

21 Settlement, and such other acts reasonably necessary to consummate the

22 Settlement.

23 VI.

CLASS AND SETTLEMENT NOTICE

24

17. Class Counsel shall provide the Class and Settlement Notice to the

25 Class Administrator for distribution according to the schedule set forth above.

26 Such notice shall be in substantially the form as proposed in Exhibit B to the

27 Settlement Agreement and shall be communicated as provided in ¶ 3 (c) above

28 (providing for both text message, email and regular mail notice); returned mail

9

Case 2:12-cv-09012-AB-FFM Document 610 Filed 11/25/20 Page 11 of 147 Page ID #:21126

1 shall be subject to follow up mailings after appropriate searches of the available

2 databases. No notice by publication shall be required because such notice has not

3 proven effective at reaching Class Members, and the resources are better spent on

4 attempting to reach Class Members through electronic email and other means of

5 electronic outreach. See revisions to F.R.Civ.P 23 (c)(2)(B) effective December

6 2019 (acknowledging that notice “may be by … electronic means, or other

7 appropriate means” in addition to or in lieu of United States mail).

8

18. To the extent not already provided, Defendants will provide the name,

9 address, social security number, date of birth, driver's license information, and any

10 other identifying information of Damages Class Members, to Plaintiffs’ counsel,

11 who will transmit it to the Class Administrator. Such information shall be

12 confidential and may not be disclosed to anyone except counsel of record, the

13 Class Administrator, and designated representatives of Defendants. Should the

14 Defendants discover at any time any additional information containing relevant

15 class information, they shall promptly provide it to Plaintiffs’ counsel and the

16 Class Administrator.

17

19. At least seven days before the Fairness Hearing, Class Counsel and/or

18 the Class Administrator shall serve and file a sworn statement by the Class

19 Administrator attesting to compliance with the provisions of this Order governing

20 Class and Settlement Notice. This shall include a list of all people who have opted

21 out of the class.

22

20. The Court approves the Class and Settlement Notice attached as

23 Exhibit B.

24

21. The Court approves the Claim Form attached as Exhibit C.

25

22. The Court approves the Class Administrator Bid attached as Exhibit

26 D.

27

23. The Court finds that the notice required by the foregoing provisions of

28 this Order is the best notice practicable under the circumstances and shall

10

Case 2:12-cv-09012-AB-FFM Document 610 Filed 11/25/20 Page 12 of 147 Page ID #:21127

1 constitute due and sufficient notice of the Settlement and the Fairness Hearing to

2 all Class Members and other persons affected by and/or entitled to participate in

3 the settlement, in full compliance with the notice requirements of Rule 23 Federal

4 Rules of Civil Procedure and due process.

5 VII. THE FAIRNESS HEARING

6

24. A Fairness Hearing shall be held on October 1, 2021, to consider: (a)

7 the fairness, reasonableness, and adequacy of the Settlement; (b) whether a Final

8 Order of Approval and Settlement should be entered in its current or some

9 modified form; and (c) the application by Class Counsel for attorneys’ fees and

10 expenses (the “Fee Motion”).

11

25. By September 3, 2021, Plaintiffs shall submit a proposed Final

12 Approval Order, which shall be approved by Defendants. That proposed order will

13 contain the final provisions the Parties seek the Court to finally approve and the

14 Parties’ proposed court orders related to any objections that have been filed. It will

15 not be necessary to file a separate motion for final approval.

16

26. The date and time of the Fairness Hearing shall be set forth in the

17 Class and Settlement Notice but shall be subject to adjournment by the Court

18 without further notice to the Class Members other than that which may be posted

19 at the Court and on the Court’s web site.

20

27. Any Class Member who objects to the approval of the Settlement

21 Agreement, the Fee Motion, the Named Plaintiffs’ incentive awards or the

22 proposed allocation of damages among Class Members may appear at the Fairness

23 Hearing and show cause why any one of the foregoing should not be approved as

24 fair, reasonable, and adequate, and why the Final Order of Approval and

25 Settlement should not be entered, except that no such Class Member may appear at

26 the Fairness Hearing unless the Class Member, no later than August 6, 2021 [the

27 date to file objections to the Settlement] (a) files with the Clerk of the Court a

28 notice of such person’s intention to appear, a statement that indicates the basis and

11

Case 2:12-cv-09012-AB-FFM Document 610 Filed 11/25/20 Page 13 of 147 Page ID #:21128

1 grounds for such person’s objection to the Settlement Agreement, the Fee Petition,

2 the Named Plaintiffs’ incentive awards or the proposed allocation of damages

3 among Class Members, and all documentation, papers, or briefs in support of such

4 objection; and by the same date (b) serves upon all Counsel to the Parties (as listed

5 in the Class Notice), either in person or by mail, copies of such notice of intention

6 to appear, statement of objections and all documentation, papers, or briefs that

7 such person files with the Court. The required documentation shall include the

8 information requested on the Claim Form. Final determination of whether any

9 such objector is a Class Member who has standing to object shall be determined

10 solely from the Defendants’ records, from which the list of Class Members has

11 been compiled. In the absence of the timely filing and timely service of the notice

12 of intention to appear and all other materials required by this paragraph, any

13 objection shall be deemed untimely and denied.

14

28. Pending final approval of the Settlement Agreement, no Class

15 Member shall, either directly, representatively, or in any other capacity,

16 commence, prosecute against any Defendant or participate in any action or 17 proceeding in any court or tribunal asserting any of the matters, claims, or causes

18 of action that are to be released by the Settlement Agreement upon final approval.

19

29. In the event of final approval of the Settlement Agreement, all

20 Damages Class Members (except those who have opted out, who by virtue of

21 opting out are no longer Class Members) shall be forever enjoined and barred

22 from asserting any of the matters, claims or causes of action released by the

23 Settlement Agreement, and all such Class Members shall be deemed to have

24 forever released any and all such matters, claims and causes of action as provided

25 for in the Settlement Agreement.

26

30. In the event of the final approval of the settlement, the Court will

27 issue an order of final approval of the settlement, which order will provide for the

28 dismissal of the complaint with prejudice and entry of judgment to that effect.

12

Case 2:12-cv-09012-AB-FFM Document 610 Filed 11/25/20 Page 14 of 147 Page ID #:21129

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Case 2:12-cv-09012-AB-FFM Document 610 Filed 11/25/20 Page 83 of 147 Page ID #:21198

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Roy v. County of Los Angeles Y 

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EXHIBIT D

CCaassee 22::1122--ccvv--0099001122--AABB--FFFFMM DDooccuummeenntt 661004-6FilFeidle1d11/205/3/200/20PaPgaeg9e12oof f15487 PPaaggee IIDD ##::2211022026

Case Name: Roy v County of Los Angeles Date: October 29, 2020
Firm Submitted to : Kaye, McLane, Bednarski & Litt, LLP Firm Contact : Lindsay Battles, Esq. Submitted by: Mark Rapazzini, Esq. Email: mrapazzini@hefflerclaims.com Submitted by: Jeanne Finegan, APR Email: jfinegan@hfmediallc.com

FEES & COSTS PROPOSAL

Case type: Civil Rights
Phone: 408-656-0808 Phone: 503-579-0746

I. Case Setup
Skip-Trace the entire class list using TransUnion prior to mailing Notice Packages (mail and email addresses, phone #s)
II. Notification/Correspondence Fees & Costs
(1) Printing and Mailing Notice (See Term 2) Set up, format and proof 8 different 5 page notices & claim forms & opt-out form Submit file to NCOA -set up fee (Standardize address formats for postal discounts) Prin8t, address and deliver to Post Office 8 Notices & Claim Forms & Opt-Out Forms- (Number of Pages 10 per notice package, 5 pages in English and 5 in Spanish) - initally to 21,342 class members, then to 2 Known Acquanintences per Postage for notice mailing in the US Postage for notice mailing internationally
(2) Processing Undeliverable Notices Process Notices returned as undeliverable - Assuming 33% undeliverable of initial mailing Skip-tracing - Lexis Nexis Re-mail a returned Notice to a new address (includes data entry, excludes postage) Postage for remailing returned Notice to new address

(3) Email Blast - Notification Generate the list of applicable email addresses - 5 different lists Release initial email blast Release reminder email blasts (4 times) Skip-Tracing for emails

(4) Text Blast - Notification Generate the list of applicable cell phone numbers Release text blast Release reminder text blasts (5 times)
III. Creation and maintenance of a website (English and Spanish)
Set-up website with online Claim Filing capability Monthly maintenance, including hosting (per month) Modifications to post-production website
IV. Call Center (See Term 6)
Set-up and training - English and Spanish Speaking Operators Live Operator - Operator Minutes - assumes 2% of class call and predominantly Spanish speaking class callers
V. Media Campaign
Standard Size publications: (See Term 4) See HF Media's Separate Proposal

VI. Process Claim Forms, Deficiencies and Rejections
Hard Copy Opt In or Claim Forms - includes mail pick up, sorting & entering in system (from assumptions below) Online Opt In or Claim Forms (from assumptions below)

VII.

Dispute Resolutions / Validation of Claims
Review of Claims Filed - Blended rate Validation of Information on Submitted Claims to database - Blended rate

VOLUME

21,342

Number of Records

RATE ($)
0.50

TOTAL ($)
10,671.00

20 1
55,000 40,000 15,000

Hourly One-Time
Notices Notices Notices

125 00 250.00
0.58 0.42 1.20

2,500.00 250 00
31,900 00 16,800.00 18,000.00

18,150 18,150 10,000 10,000

Notices Traces Notices Notices

0.25

4,537.50

0.50

9,075.00

1.00

10,000 00

0.42

4,200.00

5

One-Time Fee

1

Per Blast

4

Per Blast

Per bounced email

200 00 250 00 250 00

1,000.00 250 00
1,000.00 -

5

One-Time Fee

500 00

2,500.00

1

Per Blast 1,500 00

1,500 00

4

Per Blast 1,500 00

6,000 00

1

One-Time Fee 7,000 00

7,000 00

12

Months

150 00

1,800.00

1

Hourly

150 00

150 00

1 2,134

One-Time Fee Per Minute

750 00 1.25

750 00 2,667.50

1
860 1,274
25 20

One-Time 159,577.00 159,577 00

Claims Claims

3.50

3,010.00

0.50

637 00

Hours Hours

100 00 75 00

2,500.00 1,500.00

PRIV LEGED AND CONF DENTIAL (PAGE 1 OF 4)

CCaassee 22::1122--ccvv--0099001122--AABB--FFFFMM DDooccuummeenntt 661004-6FilFeidle1d11/205/3/200/20PaPgaeg9e23oof f15487 PPaaggee IIDD ##::2211022037

Case Name: Roy v County of Los Angeles Date: October 29, 2020
Firm Submitted to : Kaye, McLane, Bednarski & Litt, LLP Firm Contact : Lindsay Battles, Esq. Submitted by: Mark Rapazzini, Esq. Email: mrapazzini@hefflerclaims.com Submitted by: Jeanne Finegan, APR Email: jfinegan@hfmediallc.com

FEES & COSTS PROPOSAL

Case type: Civil Rights
Phone: 408-656-0808 Phone: 503-579-0746

VIII. Distribution Services (See Term 9)
Generate distribution list Processing and printing distribution checks to class members - conventional checks Postage for mailing checks - conventional checks Process checks returned as undeliverable (includes data entry) All work on reissuance of checks Reminder letters/calls to claimants with uncashed checks Postage for correspondence and reminder letters Print and Mail Reissues - conventional checks Postage for mailing reissued checks - conventional checks
TAX REPORTING Recording and reconciling SFA activity during the year Preparation of Qualified Settlement Fund Annual Federal Form 1120-SF (See Term 7)
IX. Fees
Partner Project Management (includes managers and domain leaders) - blended rates Staff - blended rates Clerical or Data Entry Time (includes time working on broker requests and responses) Technical Consulting - blended rates
X. Mail Handling, Scanning & Data/Image Storing (See Term 5 below)
Scanning set-up charges Scanning/images of Documents (Mail list, claims, correspondence , returns - include all pages and envelopes) Data/Image Storage including electronic claims received
XI. Out-of-Pocket Costs
Cost estimates

VOLUME
1 2,400 2,400
24 8
200 200 24 24
15 2
4 140 100 25
30
1 8,250
12

One-Time Per Check Per Check Per Check
Hourly Per Letter Per Check Per Check Per Check

RATE ($)
750 00 0.50 0.50 2.50 85 00 2.50 0.50 2.50 0.50

TOTAL ($)
750 00 1,200.00 1,200.00
60 00 680 00 500 00 100 00 60 00 12 00

Hourly Years

100 00 1,500 00

1,500.00 3,000 00

Hours Hours Hours Hours Hours

230 00 150 00 85 00 65 00 150 00

920 00 21,000.00
8,500.00 1,625.00 4,500.00

One-Time Fee per scan
per month
estimated 3,10

50 00 0.15 10 00

50 00 1,237 50
120 00

3,000

ESTIMATED FEES & COSTS

349,790

KEY ASSUMPTIONS USED TO PREPARE THIS PROPOSAL - 10% CLAIMS RATE - 60% ELECTRONIC & 40% PAPER

Class Size Estimated Number of Notice/Claim Form Packages Mailed to Class

21,342 55,000

Estimated Number of Notices emailed to Class Estimated Claim/Opt In Forms Filed Manually Estimated Claim/Opt In Forms Filed Electronically

860 1,274

Communication to Claimants Mailed Forms/Notice packages requested
Call Center Number of Calls in IVR System

PRIV LEGED AND CONF DENTIAL (PAGE 2 OF 4)

CCaassee 22::1122--ccvv--0099001122--AABB--FFFFMM DDooccuummeenntt 661004-6FilFeidle1d11/205/3/200/20PaPgaeg9e34oof f15487 PPaaggee IIDD ##::2211022048

Case Name: Roy v County of Los Angeles Date: October 29, 2020
Firm Submitted to : Kaye, McLane, Bednarski & Litt, LLP Firm Contact : Lindsay Battles, Esq. Submitted by: Mark Rapazzini, Esq. Email: mrapazzini@hefflerclaims.com Submitted by: Jeanne Finegan, APR Email: jfinegan@hfmediallc.com

FEES & COSTS PROPOSAL

Case type: Civil Rights
Phone: 408-656-0808 Phone: 503-579-0746

# of class members minutes per call
Total minutes
Number of Calls to Operator % of class members minutes per call Total Minutes Total Hours

VOLUME
2 00% 5

TERMS:
1 The postage rates on this schedule are at either the full first-class rates or the estimated pre-sort discount first class rates. The actual pre-sort postage discounts received will be passed through and only the net postage amount billed to us will be charged to the case.
2 Notice printing costs is an estimate. The billed cost of printing the Notice will be based on the actual volumes, number of pages and other requirements specified.
3 Out of Pocket expenses include photocopies, document storage, PO Box rental, delivery charges, sales tax, etc. Any bank fees charged by the financial institution for the escrow account will also be included in this section (see term 10).
4 Published Summary Notice amounts are based on standard size ads, actual prices will be determined once the final Notice layout is determined.
5 Our process is to scan and electronically preserve all undeliverable returned notices and checks. We would then shred and discard the paper versions. This process will be completed for all cases unless the Settlement Agreement or Approval Order requires these hard copy documents to be maintained and stored.
6 Live operators will be charged based on the time they are available to accept calls based on a reasonably staffed basis during business hours. There will be a minimum monthly charge for the call center services.
7 Time spent on resolving any tax notices received would be charged at our normal hourly rates.
8 The claim form used will be in the format approved by the court. Any modification will be to format the document for printing purposes or for data capture purposes. Any modification will not alter the requirements of the claim form.
9 Post Distribution services are not included in this estimate, unless such specified services are priced, and expressly stated to be included. HCG's standard practice is to mail checks and remail any returned undeliverable checks where the Post Office has provided a forwarding address. Any services beyond HCG's standard practice are considered Post Distribution services and are billed at our hourly rates.
10 The financial institution will charge a fee for the services rendered in processing and clearing checks. This includes processing and disbursement services for all checks presented for payment, positive pay services, image availability, on-line account transaction and exception reporting, full reconciliation reports. This amount is a pass-through cost and is not included in the total estimate above.
11 Securities case - for any claims submitted with more than 25 transactions, each group of 25 transactions will be charged as a submitted claim.

0
2,134 36

CONDITIONS:
The pricing in this proposal is valid for ninety days after submission to Counsel. HCG reserves the right to amend or withdraw the proposal at its discretion after the ninety days has passed.
The information in the original database should be in proper condition to be used for its intended purpose. HCG will not be responsible for any errors due to modifications needed to the original database to put the information in the proper format. The proposed rates above anticipate that the mailing data is in a useable format. Any detailed work to generate a proper mailing list will be charged our standard billing rates per hour.
HCG requires that postage and any certain printing costs will be payable within 5 days prior to the scheduled mailing date unless other arrangements are agreed to prior to the commencement of the contract.

RATE ($)

TOTAL ($)

PRIV LEGED AND CONF DENTIAL (PAGE 3 OF 4)

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Case Name: Roy v County of Los Angeles Date: October 29, 2020
Firm Submitted to : Kaye, McLane, Bednarski & Litt, LLP Firm Contact : Lindsay Battles, Esq. Submitted by: Mark Rapazzini, Esq. Email: mrapazzini@hefflerclaims.com Submitted by: Jeanne Finegan, APR Email: jfinegan@hfmediallc.com

FEES & COSTS PROPOSAL

Case type: Civil Rights
Phone: 408-656-0808 Phone: 503-579-0746

Acceptance of any proposal must be given in written format either by a signed engagement letter or other documented communication.

VOLUME

RATE ($)

TOTAL ($)

PRIV LEGED AND CONF DENTIAL (PAGE 4 OF 4)

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Situation Analysis
This lawsuit alleges that the Los Angeles Sheriff’s Department improperly held jailed inmates on immigration detainers after they became due for release.
Approach
There are two of complexities in this case: 1) name, address, email, and phone records may be incomplete and unreliable; and 2) a percentage of the population may no longer reside in the Los Angeles area and are likely dispersed across the state or have been deported back to Mexico or other countries found in defendants’ data.
In consideration of these complexities, page six of the Request for Proposal also instructs that most of the detainees were released into the Los Angeles community. With these factors in mind, the proposed outreach effort will include a tiered1 approach to notice, which will provide the heaviest media weight in the Los Angeles market and then extend the outreach throughout California, nationwide and in Mexico, and where data instructs, other Central American countries. All outreach materials, commercials and advertisements will be in Spanish. We also intend to create a ‘halo’ effect to this outreach by utilizing influencers and trusted sources such as immigration and human rights advocates, religious leaders, Catholic Priests and social workers, among others to extend our messaging. The Outreach efforts described below are estimated to reach at least 70% of all Hispanic/Spanish speaking adults in the Los Angeles DMA.

Outreach Snapshot

Los Angeles

Local Spanish Television

X

Local Spanish Radio

X

Google Search

X

Social Media

X

Community Outreach

X

Press Release

X

California United States

Mexico+

X

X

X

X

X

X

X

X

X

X

1 A tiered approach to Notice has been approved by courts in other international notice programs including Air Cargo Shipping Services Antitrust Litigation, case number 1:06-md-01775-CBA-VVP, in the U.S. District E.D. New York; Dover, et al. v. British Airways PLC, Case No. 1:12-cv-05567, in the U.S. E.D. New York; In re Mexico Money Transfer Litig., 164 F. Supp. 2d 1002 N.D. Ill. 2000; In re Western Union Money Transfer Litig., No 01-335, 2004 WL 3709932, E.D. NY 2004; and In Re Royal Ahold N. Sec & Erisa Litig., 437 F. Supp 2d 467, D. Md. 2006; among others.

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United States
Los Angeles Broadcast
Approximately 400, :30-second television commercials will air in Spanish over two weeks across KMEX and KFTR. To further support the effort, over 300, :60-second radio commercials will air on:
x KRCD-FM Spanish Adult Hits 103.9 x KTNQ-AM Spanish News/Talk 1020 x KSCA-FM Mexican Regional 101.9 x KMLA-FM Mexican Regional format x Radio Indígena
The advertising schedules include commercials in popular programming such as Dr. César Lozano Show. Dr. César Lozano has a master's in Public Health and a subspecialty on Health in the Workplace. He is one of the most requested speakers in Mexico, the United States, Central and South America and is the host of "For the pleasure of living" an MVS Radio network broadcast across more than 50 stations in Mexico, Argentina and the United States.
Further, we plan to include Radio Indígena, a radio station for indigenous Mexican languages in the Oxnard-Ventura area. According to our research, approximately one-third of Mexican and Central American immigrant workers in California speak indigenous languages, including Trique and Mixtec. This station provides programming for thousands of Mexican and Central American workers who speak Mixtec or other indigenous Central American languages.
Radio stations were carefully selected using media research from Arbitron and Scarborough ratings. These research sources identify stations that appeal to Hispanic adults, adults who prefer to speak Spanish and Hispanic adults with a lower household income.
U.S. Facebook and Instagram
The proposed notice program will include the social media platforms Facebook and Instagram. Using defendant-provided data, we will create a custom list of known class members by matching Facebook and Instagram profiles using email addresses, phone numbers or physical addresses.
To expand this targeting to qualified potential class members, HF Media will target individuals in California with the names (only) of the class members. This use of class members’ names will match Facebook users who have the same names as class members, thereby creating a custom audience of more qualified individuals.
Further, we plan to target followers of immigrant and migration resources, health and welfare services, public defenders in Los Angeles, immigration attorneys in Los Angeles, immigration resource groups, day labor groups and Catholic relief services.
U.S. Community Based Outreach
Importantly, we recognize that trust in the message will be critically important to this notice program. We plan to extend outreach through associations that provide support or services to migrant and unauthorized immigrant populations. To the extent possible, we will send an informational cover letter to the identified organizations asking for additional coverage. The cover letter will request that the
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organizations distribute information about the Settlement and class member rights via their own email, web, newsletters, blogs and various other channels. To that end, we plan to work with trusted community, religious and human rights organizations including Justice In Motion, over 60 Catholic churches in Los Angeles, the Catholic Charities of Los Angeles, International Catholic Migration Commission, Border Angels, the Legal Aid Foundation of Los Angeles, Immigrant Fund of LA, Esperanza Immigrant Rights, numerous Day Labor Centers in LA, Latino Resources.org, Human Rights First Immigration LA, Coalition for Human Rights and the Mexican American Legal Defense, among others.
U.S. Press Release
A press release will be issued in English and Spanish across the US1 plus National Hispanic newslines (includes distribution in California). Further, we will encourage the Catholic News Agency to also disseminate our release to various parishes in the United States.
Mexico
Mexico Facebook and Instagram
To best utilize the media budget, we propose to heavily rely on the defendant-provided data to narrow and thoughtfully target potential class members through the social media channels Facebook and Instagram.
HF Media will examine the data to determine the best ways to narrowly target potential class members. This could include:
x Facebook custom audience of qualified potential class members (consistent with tactics to the U.S.), that matches class member names to individuals in Mexico with those same names.
x Geo-targeting to the hometowns of class members (dependent on available data from defendant.) Alternately, per Migration Policy reporting, we can see where the majority of unauthorized immigrants come from in Mexico and can target using these identified locations.
x We would also look to defendants’ data to narrow the targeting by age, gender and geographical location.
Mexico Search
HF Media will employ keyword search on Google Ads. Representative key terms will include, but are not limited border crossing, Mexico border crossing requirements, migrant jobs, migrant work, legal help for migrants and work in California, among others.
Mexico Press Release
A press release will be distributed over PR Newswire’s Mexico Newslines. PR Newswire delivers to thousands of print and broadcast newsrooms worldwide, as well as websites, databases and online services including featured placement in news sections of leading portals.
Mexico Community Based Outreach
HF Media will send a cover letter and press release to the identified organizations asking for additional coverage. To the extent possible, HF Media will coordinate with each party to provide information about
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the Settlement for the organizations to distribute via email, web, newsletters, blogs and various postings. These organizations may include, among others:
x Border Kindness (Mexicali M) Accion d Gracia Immigration Assistance x New Comienzos x Bridges for Understanding x IMUMI x Consejo Ciudadano x Yodarta x Centro de los Dereches del Migrante x La Casa del Migrante x Catholic Shelters in Mexico x Catholic Relief Services of Mexico x Mexican American Legal Defense
Key Considerations - Outreach Development
In addition to careful review of the RFP, the basis for our assumptions is derived from a number of research reports listed below. However, the actual media plan will be highly targeted to reflect the demographics of the known class members using defendants’ records.
Unauthorized Immigrant Research Studies: 1. Department of Homeland Security Office of Immigration Statistics: Population Estimates: Illegal Alien Population Residing in The United States2; 2. U.S. Immigration and Customs Enforcement Fiscal Year 2019 Enforcement and Removal Operations Report3; 3. MigrationPolicy.org: Unauthorized Immigrant Population Profiles4;
These data reveal key demographic information such as race and ethnic consideration. Here, we see that:
x 68% of the unauthorized population in California is from Mexico x 52% are Male x Education:
o 36% have less than a high school diploma/GED o 22% have a high school diploma/GED o 25% have some college or more
2 “Origins of Mexican Migrants to the United States by Mexican State of Residence, Number, and Share, 20042015.” Migrationpolicy.org, Migration Policy Institute, 9 Aug. 2018, www.migrationpolicy.org/programs/datahub/charts/origins-mexican-migrants-united-states-mexican-state-residence-number-and?width=900. 3 “U.S. Immigration and Customs Enforcement Fiscal Year 2019 Enforcement and Removal Operations Report.” Ice.gov, U.S. Immigration and Customs Enforcement, www.ice.gov/sites/default/files/documents/Document/2019/eroReportFY2019.pdf. 4 “Profile of the Unauthorized Population: United States.” Migrationpolicy.org, Migration Policy Institute, 1 Oct. 2020, www.migrationpolicy.org/data/unauthorized-immigrant-population/state/us.
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x Language: o 79% speak Spanish at home o 49% Speak English “not well/not at all”5
x 84% of unauthorized immigrants residing in the United States in 2015 are age 18-544
U.S. LOS ANGELES - MEDIA CHOICE RATIONALE
Based on media research tools such as Gfk Mediamark Research and Intelligence LLC6, the following mediums were selected based on the target audience’s media preferences. The target audience focuses on those whose birthplace (Hispanic respondents only) is outside the U.S.
x Television: 90.4% have watched any TV in the past 7 days x Radio: 84% have listened to radio in the past 7 days x Digital Media: Search, Display, Social
o 72.3% have used the internet in the past 30 days o 70.8% have used their smartphone to access the internet in the past 30 days o 67.3% have used social media
MEXICO – MEDIA CHOICE RATIONALE
x Digital Media: Search, Display, Social7 o 69% of Mexicans are internet users o 69% of Mexicans are active social media users
x 66.7% of Mexican migrants to the United States come from 10 states8:
# # #
5 “Profile of the Unauthorized Population - Ca.” Migrationpolicy.org, Migration Policy Institute, 1 Oct. 2020, www.migrationpolicy.org/data/unauthorized-immigrant-population/state/ca. 6 MRI 2018 Doublebase - M182Y 7 Source: Hootsuite Digital 2020 Global Digital Yearbook 8 “Origins of Mexican Migrants to the United States by Mexican State of Residence, Number, and Share, 20042015.” Migrationpolicy.org, Migration Policy Institute, 9 Aug. 2018, www.migrationpolicy.org/programs/datahub/charts/origins-mexican-migrants-united-states-mexican-state-residence-number-and?width=900.
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Social media geo targeting may also be weighted by the volume of immigrants originating from the states below:

Mexican State

Total by State 2004-2015 % of Total

Guanajuato Chiapas Michoacán Jalisco Oaxaca Veracruz Sonora Sinaloa Mexico Guerrero

742,100 620,600 586,300 440,300 353,400 328,600 259,300 253,800 251,490 249,000

12.1% 10.1% 9.6% 7.2% 5.8% 5.4% 4.2% 4.1% 4.1% 4.1%

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JEANNE C. FINEGAN, APR
BIOGRAPHY
Jeanne Finegan, APR, is the Chief Media Officer of HF Media LLC, a division of Heffler Claims Group. She is a member of the Board of Directors for the prestigious Alliance for Audited Media (AAM) and was named by Diversity Journal as one of the “Top 100 Women Worth Watching.” She is a distinguished legal notice and communications expert with more than 30 years of communications and advertising experience.
She was a lead contributing author for Duke University's School of Law, "Guidelines and Best Practices Implementing Amendments to Rule 23 Class Action Settlement Provisions." And more recently, she has been involved with New York School of Law and The Center on Civil Justice (CCJ) assisting with a class action settlement data analysis and comparative visualization tool called the Aggregate Litigation Project, designed to help judges make decisions in aggregate cases on the basis of data as opposed to anecdotal information. Moreover, her experience also includes working with the Special Settlement Administrator’s team to assist with the outreach strategy for the historic Auto Airbag Settlement, In re: Takata Airbag Products Liability Litigation MDL 2599.
During her tenure, she has planned and implemented over 1,000 high-profile, complex legal notice communication programs. She is a recognized notice expert in both the United States and in Canada, with extensive international notice experience spanning more than 170 countries and over 40 languages.
Ms. Finegan has lectured, published and has been cited extensively on various aspects of legal noticing, product recall and crisis communications. She has served the Consumer Product Safety Commission (CPSC) as an expert to determine ways in which the Commission can increase the effectiveness of its product recall campaigns. Further, she has planned and implemented large-scale government enforcement notice programs for the Federal Trade Commission (FTC) and the Securities and Exchange Commission (SEC).
Ms. Finegan is accredited in Public Relations (APR) by the Universal Accreditation Board, which is a program administered by the Public Relations Society of America (PRSA), and is also a recognized member of the Canadian Public Relations Society (CPRS). She has served on examination panels for APR candidates and worked pro bono as a judge for prestigious PRSA awards.
Ms. Finegan has provided expert testimony before Congress on issues of notice, and expert testimony in both state and federal courts regarding notification campaigns. She has conducted

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numerous media audits of proposed notice programs to assess the adequacy of those programs under Fed R. Civ. P. 23(c)(2) and similar state class action statutes.
She was an early pioneer of plain language in notice (as noted in a RAND study,1) and continues to set the standard for modern outreach as the first notice expert to integrate social and mobile media into court approved legal notice programs.
In the course of her class action experience, courts have recognized the merits of, and admitted expert testimony based on, her scientific evaluation of the effectiveness of notice plans. She has designed legal notices for a wide range of class actions and consumer matters that include product liability, construction defect, antitrust, medical/pharmaceutical, human rights, civil rights, telecommunication, media, environment, government enforcement actions, securities, banking, insurance, mass tort, restructuring and product recall.
JUDICIAL COMMENTS AND LEGAL NOTICE CASES
In evaluating the adequacy and effectiveness of Ms. Finegan’s notice campaigns, courts have repeatedly recognized her excellent work. The following excerpts provide some examples of such judicial approval.
In re Purdue Pharma L.P., No. 19-23649 (Bankr. S.D.N.Y. 2019). Omnibus Hearing, Motion Pursuant to 11 U.S.C. §§ 105(a) and 501 and Fed. R. Bankr. P. 2002 and 3003(c)(3) for Entry of an Order (I)Extending the General Bar Date for a Limited Period and (II) Approving the Form and Manner of Notice Thereof, June 3, 2020, transcript p. 88:10, the Honorable Robert Drain stated:
“The notice here is indeed extraordinary, as was detailed on page 8 of Ms. Finegan's declaration in support of the original bar date motion and then in her supplemental declaration from May 20th in support of the current motion, the notice is not only in print media, but extensive television and radio notice, community outreach, -- and I think this is perhaps going to be more of a trend, but it's a major element of the notice here -- online, social media, out of home, i.e. billboards, and earned media, including bloggers and creative messaging. That with a combined with a simplified proof of claims form and the ability to file a claim or first, get more information about filing a claim online -- there was a specific claims website -- and to file a claim either online or by mail. Based on Ms. Finegan's supplemental declaration, it appears clear to me that that process of providing notice has been quite successful in its goal in ultimately reaching roughly 95 percent of all adults in the United States over the age of 18 with an average frequency of message exposure of six times, as well as over 80 percent of all adults in Canada with an average message exposure of over three times.”

1 Deborah R. Hensler et al., CLASS ACTION DILEMAS, PURSUING PUBLIC GOALS FOR PRIVATE GAIN. RAND (2000).

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In Re: PG&E Corporation Case No . 19-30088 Bankr. (N.D. Cal. 2019). Hearing Establishing, Deadline for Filing Proofs of Claim, (II) establishing the Form and Manner of Notice Thereof, and (III) Approving Procedures for Providing Notice of Bar Date and Other Information to all Creditors and Potential Creditors PG&E. June 26, 2019, Transcript of Hearing p. 21:1, the Honorable Dennis Montali stated:
…the technology and the thought that goes into all these plans is almost incomprehensible. He further stated, p. 201:20 … Ms. Finegan has really impressed me today…
Yahoo! Inc. Customer Data Security Breach Litigation, Case No. 5:16-MD-02752 (ND Cal 2010). In the Order Preliminary Approval, dated July 20, 2019, the Honorable Lucy Kho stated, para 21,
“The Court finds that the Approved Notices and Notice Plan set forth in the Amended Settlement Agreement satisfy the requirements of due process and Federal Rule of Civil Procedure 23 and provide the best notice practicable under the circumstances.”
In re: The Bank of New York Mellon ADR FX Litigation, 16-CV-00212-JPO-JLC (S.D.N.Y. 2019). In the Final Order and Judgement, dated June 17, 2019, para 5, the Honorable J. Paul Oetkin stated:
“The dissemination of notice constituted the best notice practicable under the circumstances.”
Simerlein et al., v. Toyota Motor Corporation, Case No. 3:17-cv-01091-VAB (District of CT 2019). In the Ruling and Order on Motion for Preliminarily Approval, dated January 14, 2019, p. 30, the Honorable Victor Bolden stated:
“In finding that notice is sufficient to meet both the requirements of Rule 23(c) and due process, the Court has reviewed and appreciated the high-quality submission of proposed Settlement Notice Administrator Jeanne C. Finegan. See Declaration of Jeanne C. Finegan, APR, Ex. G to Agrmt., ECF No. 85-8.”
Fitzhenry- Russell et al., v Keurig Dr. Pepper Inc., Case No. :17-cv-00564-NC, (ND Cal). In the Order Granting Final Approval of Class Action Settlement, Dated April 10, 2019, the Honorable Nathanael Cousins stated:
“…the reaction of class members to the proposed Settlement is positive. The parties anticipated that 100,000 claims would be filed under the Settlement (see Dkt. No. 3275 ¶ 36)—91,254 claims were actually filed (see Finegan Decl ¶ 4). The 4% claim rate was reasonable in light of Heffler’s efforts to ensure that notice was adequately provided to the Class.”

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Pettit et al., v. Procter & Gamble Co., Case No. 15-cv-02150-RS ND Cal. In the Order Granting Final Approval of the Class Action Settlement and Judgement, Dated March 28, 2019, p. 6, the Honorable Richard Seeborg stated:
“The Court finds that the Notice Plan set forth in the Settlement Agreement, and effectuated pursuant to the Preliminary Approval Order, constituted the best notice practicable under the circumstances and constituted due and sufficient notice to the Settlement Class. …the number of claims received equates to a claims rate of 4.6%, which exceeds the rate in comparable settlements.”
Carter v Forjas Taurus S.S., Taurus International Manufacturing, Inc., Case No. 1:13-CV-24583 PAS (S.D. Fl. 2016). In her Final Order and Judgment Granting Plaintiffs Motion for Final Approval of Class Action Settlement, the Honorable Patricia Seitz stated:
“The Court considered the extensive experience of Jeanne C. Finegan and the notice program she developed. …There is no national firearms registry and Taurus sale records do not provide names and addresses of the ultimate purchasers… Thus the form and method used for notifying Class Members of the terms of the Settlement was the best notice practicable. …The court-approved notice plan used peer-accepted national research to identify the optimal traditional, online, mobile and social media platforms to reach the Settlement Class Members.”
Additionally, in January 20, 2016, Transcript of Class Notice Hearing, p. 5 Judge Seitz, noted:
“I would like to compliment Ms. Finegan and her company because I was quite impressed with the scope and the effort of communicating with the Class.”
Cook et. al v. Rockwell International Corp. and the Dow Chemical Co., No. 90-cv-00181- KLK (D.Colo. 2017)., aka, Rocky Flats Nuclear Weapons Plant Contamination. In the Order Granting Final Approval, dated April 28, 2017, p.3, the Honorable John L. Kane said:
The Court-approved Notice Plan, which was successfully implemented by [HF Media- emphasis added] (see Doc. 2432), constituted the best notice practicable under the circumstances. In making this determination, the Court finds that the Notice Plan that was implemented, as set forth in Declaration of Jeanne C. Finegan, APR Concerning Implementation and Adequacy of Class Member Notification (Doc. 2432), provided for individual notice to all members of the Class whose identities and addresses were identified through reasonable efforts, … and a comprehensive national publication notice program that included, inter alia, print, television, radio and internet banner advertisements. …Pursuant to, and in accordance with, Rule 23 of the Federal Rules of Civil Procedure, the Court finds that the Notice Plan provided the best notice practicable to the Class.

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In re: Domestic Drywall Antitrust Litigation, MDL. No. 2437, in the U.S. District Court for the Eastern District of Pennsylvania. For each of the four settlements, Finegan implemented and extensive outreach effort including traditional, online, social, mobile and advanced television and online video. In the Order Granting Preliminary Approval to the IPP Settlement, Judge Michael M. Baylson stated:
“The Court finds that the dissemination of the Notice and summary Notice constitutes the best notice practicable under the circumstances; is valid, due, and sufficient notice to all persons… and complies fully with the requirements of the Federal rule of Civil Procedure.”
Warner v. Toyota Motor Sales, U.S.A. Inc., Case No 2:15-cv-02171-FMO FFMx (C.D. Cal. 2017). In the Order Re: Final Approval of Class Action Settlement; Approval of Attorney’s Fees, Costs & Service Awards, dated May 21, 2017, the Honorable Fernando M. Olguin stated:
Finegan, the court-appointed settlement notice administrator, has implemented the multiprong notice program. …the court finds that the class notice and the notice process fairly and adequately informed the class members of the nature of the action, the terms of the proposed settlement, the effect of the action and release of claims, the class members’ right to exclude themselves from the action, and their right to object to the proposed settlement. (See Dkt. 98, PAO at 25-28).
Michael Allagas, et al., v. BP Solar International, Inc., et al., BP Solar Panel Settlement, Case No. 3:14-cv-00560- SI (N.D. Cal., San Francisco Div. 2016). In the Order Granting Final Approval, Dated December 22, 2016, The Honorable Susan Illston stated:
Class Notice was reasonable and constituted due, adequate and sufficient notice to all persons entitled to be provided with notice; and d. fully satisfied the requirements of the Federal Rules of Civil Procedure, including Fed. R. Civ. P. 23(c)(2) and (e), the United States Constitution (including the Due Process Clause), the Rules of this Court, and any other applicable law.
Foster v. L-3 Communications EOTech, Inc. et al (6:15-cv-03519), Missouri Western District Court.
In the Court’s Final Order, dated July 7, 2017, The Honorable Judge Brian Wimes stated: “The Court has determined that the Notice given to the Settlement Class fully and accurately informed members of the Settlement Class of all material elements of the Settlement and constituted the best notice practicable.”

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In re: Skechers Toning Shoes Products Liability Litigation, No. 3:11-MD-2308-TBR (W.D. Ky. 2012). In his Final Order and Judgment granting the Motion for Preliminary Approval of Settlement, the Honorable Thomas B. Russell stated:
… The comprehensive nature of the class notice leaves little doubt that, upon receipt, class members will be able to make an informed and intelligent decision about participating in the settlement.
Brody v. Merck & Co., Inc., et al, No. 3:12-cv-04774-PGS-DEA (N.J.) (Jt Hearing for Prelim App, Sept. 27, 2012, transcript page 34). During the Hearing on Joint Application for Preliminary Approval of Class Action, the Honorable Peter G. Sheridan acknowledged Ms. Finegan’s work, noting:
Ms. Finegan did a great job in testifying as to what the class administrator will do. So, I'm certain that all the class members or as many that can be found, will be given some very adequate notice in which they can perfect their claim.
Quinn v. Walgreen Co., Wal-Mart Stores Inc., 7:12 CV-8187-VB (NYSD) (Jt Hearing for Final App, March. 5, 2015, transcript page 40-41). During the Hearing on Final Approval of Class Action, the Honorable Vincent L. Briccetti stated:
"The notice plan was the best practicable under the circumstances. … [and] “the proof is in the pudding. This settlement has resulted in more than 45,000 claims which is 10,000 more than the Pearson case and more than 40,000 more than in a glucosamine case pending in the Southern District of California I've been advised about. So the notice has reached a lot of people and a lot of people have made claims.”
In Re: TracFone Unlimited Service Plan Litigation, No. C-13-3440 EMC (ND Ca). In the Final Order and Judgment Granting Class Settlement, July 2, 2015, the Honorable Edward M. Chen noted:
“…[D]epending on the extent of the overlap between those class members who will automatically receive a payment and those who filed claims, the total claims rate is estimated to be approximately 25-30%. This is an excellent result...
In Re: Blue Buffalo Company, Ltd., Marketing and Sales Practices Litigation, Case No. 4:14MD-2562 RWS (E.D. Mo. 2015), (Hearing for Final Approval, May 19, 2016 transcript p. 49). During the Hearing for Final Approval, the Honorable Rodney Sippel said:
It is my finding that notice was sufficiently provided to class members in the manner directed in my preliminary approval order and that notice met all applicable requirements of due process and any other applicable law and considerations.
DeHoyos, et al. v. Allstate Ins. Co., No. SA-01-CA-1010 (W.D.Tx. 2001). In the Amended Final Order and Judgment Approving Class Action Settlement, the Honorable Fred Biery stated:

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[T]he undisputed evidence shows the notice program in this case was developed and implemented by a nationally recognized expert in class action notice programs. … This program was vigorous and specifically structured to reach the African-American and Hispanic class members. Additionally, the program was based on a scientific methodology which is used throughout the advertising industry and which has been routinely embraced routinely [sic] by the Courts. Specifically, in order to reach the identified targets directly and efficiently, the notice program utilized a multi-layered approach which included national magazines; magazines specifically appropriate to the targeted audiences; and newspapers in both English and Spanish.
In re: Reebok Easytone Litigation, No. 10-CV-11977 (D. MA. 2011). The Honorable F. Dennis Saylor IV stated in the Final Approval Order:
The Court finds that the dissemination of the Class Notice, the publication of the Summary Settlement Notice, the establishment of a website containing settlementrelated materials, the establishment of a toll-free telephone number, and all other notice methods set forth in the Settlement Agreement and [Ms. Finegan’s] Declaration and the notice dissemination methodology implemented pursuant to the Settlement Agreement and this Court’s Preliminary Approval Order… constituted the best practicable notice to Class Members under the circumstances of the Actions.
Bezdek v. Vibram USA and Vibram FiveFingers LLC, No 12-10513 (D. MA) The Honorable Douglas P. Woodlock stated in the Final Memorandum and Order:
…[O]n independent review I find that the notice program was robust, particularly in its online presence, and implemented as directed in my Order authorizing notice. …I find that notice was given to the Settlement class members by the best means “practicable under the circumstances.” Fed.R.Civ.P. 23(c)(2).
Gemelas v. The Dannon Company Inc., No. 08-cv-00236-DAP (N.D. Ohio). In granting final approval for the settlement, the Honorable Dan A. Polster stated:
In accordance with the Court's Preliminary Approval Order and the Court-approved notice program, [Ms. Finegan] caused the Class Notice to be distributed on a nationwide basis in magazines and newspapers (with circulation numbers exceeding 81 million) specifically chosen to reach Class Members. … The distribution of Class Notice constituted the best notice practicable under the circumstances, and fully satisfied the requirements of Federal Rule of Civil Procedure 23, the requirements of due process, 28 U.S.C. 1715, and any other applicable law.
Pashmova v. New Balance Athletic Shoes, Inc., 1:11-cv-10001-LTS (D. Mass.). The Honorable Leo T. Sorokin stated in the Final Approval Order:

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The Class Notice, the Summary Settlement Notice, the web site, and all other notices in the Settlement Agreement and the Declaration of [Ms Finegan], and the notice methodology implemented pursuant to the Settlement Agreement: (a) constituted the best practicable notice under the circumstances; (b) constituted notice that was reasonably calculated to apprise Class Members of the pendency of the Actions, the terms of the Settlement and their rights under the settlement … met all applicable requirements of law, including, but not limited to, the Federal Rules of Civil Procedure, 28 U.S.C. § 1715, and the Due Process Clause(s) of the United States Constitution, as well as complied with the Federal Judicial Center’s illustrative class action notices.
Hartless v. Clorox Company, No. 06-CV-2705 (CAB) (S.D.Cal.). In the Final Order Approving Settlement, the Honorable Cathy N. Bencivengo found:
The Class Notice advised Class members of the terms of the settlement; the Final Approval Hearing and their right to appear at such hearing; their rights to remain in or opt out of the Class and to object to the settlement; the procedures for exercising such rights; and the binding effect of this Judgment, whether favorable or unfavorable, to the Class. The distribution of the notice to the Class constituted the best notice practicable under the circumstances, and fully satisfied the requirements of Federal Rule of Civil Procedure 23, the requirements of due process, 28 U.S.C. §1715, and any other applicable law.
McDonough et al v. Toys 'R' Us et al, No. 09:-cv-06151-AB (E.D. Pa.). In the Final Order and Judgment Approving Settlement, the Honorable Anita Brody stated:
The Court finds that the Notice provided constituted the best notice practicable under the circumstances and constituted valid, due and sufficient notice to all persons entitled thereto.
In re: Pre-Filled Propane Tank Marketing & Sales Practices Litigation, No. 4:09-md-02086-GAF (W.D. Mo.) In granting final approval to the settlement, the Honorable Gary A. Fenner stated:
The notice program included individual notice to class members who could be identified by Ferrellgas, publication notices, and notices affixed to Blue Rhino propane tank cylinders sold by Ferrellgas through various retailers. ... The Court finds the notice program fully complied with Federal Rule of Civil Procedure 23 and the requirements of due process and provided to the Class the best notice practicable under the circumstances.
Stern v. AT&T Mobility Wireless, No. 09-cv-1112 CAS-AGR (C.D.Cal. 2009). In the Final Approval Order, the Honorable Christina A. Snyder stated:

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[T]he Court finds that the Parties have fully and adequately effectuated the Notice Plan, as required by the Preliminary Approval Order, and, in fact, have achieved better results than anticipated or required by the Preliminary Approval Order.
In re: Processed Egg Prods. Antitrust Litig., MDL No. 08-md-02002 (E.D.P.A.). In the Order Granting Final Approval of Settlement, Judge Gene E.K. Pratter stated:
The Notice appropriately detailed the nature of the action, the Class claims, the definition of the Class and Subclasses, the terms of the proposed settlement agreement, and the class members’ right to object or request exclusion from the settlement and the timing and manner for doing so.… Accordingly, the Court determines that the notice provided to the putative Class Members constitutes adequate notice in satisfaction of the demands of Rule 23.
In re Polyurethane Foam Antitrust Litigation, 10- MD-2196 (N.D. OH). In the Order Granting Final Approval of Voluntary Dismissal and Settlement of Defendant Domfoam and Others, the Honorable Jack Zouhary stated:
The notice program included individual notice to members of the Class who could be identified through reasonable effort, as well as extensive publication of a summary notice. The Notice constituted the most effective and best notice practicable under the circumstances of the Settlement Agreements, and constituted due and sufficient notice for all other purposes to all persons and entities entitled to receive notice.
Rojas v Career Education Corporation, No. 10-cv-05260 (N.D.E.D. IL) In the Final Approval Order dated October 25, 2012, the Honorable Virgina M. Kendall stated:
The Court Approved notice to the Settlement Class as the best notice practicable under the circumstance including individual notice via U.S. Mail and by email to the class members whose addresses were obtained from each Class Member’s wireless carrier or from a commercially reasonable reverse cell phone number look-up service, nationwide magazine publication, website publication, targeted on-line advertising, and a press release. Notice has been successfully implemented and satisfies the requirements of the Federal Rule of Civil Procedure 23 and Due Process.
Golloher v Todd Christopher International, Inc. DBA Vogue International (Organix), No. C 1206002 N.D CA. In the Final Order and Judgment Approving Settlement, the Honorable Richard Seeborg stated:
The distribution of the notice to the Class constituted the best notice practicable under the circumstances, and fully satisfied the requirements of Federal Rule of Civil Procedure 23, the requirements of due process, 28 U.S.C. §1715, and any other applicable law.

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Stefanyshyn v. Consolidated Industries, No. 79 D 01-9712-CT-59 (Tippecanoe County Sup. Ct., Ind.). In the Order Granting Final Approval of Settlement, Judge Randy Williams stated:
The long and short form notices provided a neutral, informative, and clear explanation of the Settlement. … The proposed notice program was properly designed, recommended, and implemented … and constitutes the “best practicable” notice of the proposed Settlement. The form and content of the notice program satisfied all applicable legal requirements. … The comprehensive class notice educated Settlement Class members about the defects in Consolidated furnaces and warned them that the continued use of their furnaces created a risk of fire and/or carbon monoxide. This alone provided substantial value.
McGee v. Continental Tire North America, Inc. et al, No. 06-6234-(GEB) (D.N.J.).
The Class Notice, the Summary Settlement Notice, the web site, the toll-free telephone number, and all other notices in the Agreement, and the notice methodology implemented pursuant to the Agreement: (a) constituted the best practicable notice under the circumstances; (b) constituted notice that was reasonably calculated to apprise Class Members of the pendency of the Action, the terms of the settlement and their rights under the settlement, including, but not limited to, their right to object to or exclude themselves from the proposed settlement and to appear at the Fairness Hearing; (c) were reasonable and constituted due, adequate and sufficient notice to all persons entitled to receive notification; and (d) met all applicable requirements of law, including, but not limited to, the Federal Rules of Civil Procedure, 20 U.S.C. Sec. 1715, and the Due Process Clause(s) of the United States Constitution, as well as complied with the Federal Judicial Center’s illustrative class action notices,
Varacallo, et al. v. Massachusetts Mutual Life Insurance Company, et al., No. 04-2702 (JLL) (D.N.J.). The Court stated that:
[A]ll of the notices are written in simple terminology, are readily understandable by Class Members, and comply with the Federal Judicial Center's illustrative class action notices. … By working with a nationally syndicated media research firm, [Finegan’s firm] was able to define a target audience for the MassMutual Class Members, which provided a valid basis for determining the magazine and newspaper preferences of the Class Members. (Preliminary Approval Order at p. 9). . . . The Court agrees with Class Counsel that this was more than adequate. (Id. at § 5.2).
In re: Nortel Network Corp., Sec. Litig., No. 01-CV-1855 (RMB) Master File No. 05 MD 1659 (LAP) (S.D.N.Y.). Ms. Finegan designed and implemented the extensive United States and Canadian notice programs in this case. The Canadian program was published in both French and English, and targeted virtually all investors of stock in Canada. See

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www.nortelsecuritieslitigation.com. Of the U.S. notice program, the Honorable Loretta A. Preska stated:
The form and method of notifying the U.S. Global Class of the pendency of the action as a class action and of the terms and conditions of the proposed Settlement … constituted the best notice practicable under the circumstances, and constituted due and sufficient notice to all persons and entities entitled thereto.
Regarding the B.C. Canadian Notice effort: Jeffrey v. Nortel Networks, [2007] BCSC 69 at para. 50, the Honourable Mr. Justice Groberman said:
The efforts to give notice to potential class members in this case have been thorough. There has been a broad media campaign to publicize the proposed settlement and the court processes. There has also been a direct mail campaign directed at probable investors. I am advised that over 1.2 million claim packages were mailed to persons around the world. In addition, packages have been available through the worldwide web site nortelsecuritieslitigation.com on the Internet. Toll-free telephone lines have been set up, and it appears that class counsel and the Claims Administrator have received innumerable calls from potential class members. In short, all reasonable efforts have been made to ensure that potential members of the class have had notice of the proposal and a reasonable opportunity was provided for class members to register their objections, or seek exclusion from the settlement.
Mayo v. Walmart Stores and Sam’s Club, No. 5:06 CV-93-R (W.D.Ky.). In the Order Granting Final Approval of Settlement, Judge Thomas B. Russell stated:
According to defendants’ database, the Notice was estimated to have reached over 90% of the Settlement Class Members through direct mail. The Settlement Administrator … has classified the parties’ database as ‘one of the most reliable and comprehensive databases [she] has worked with for the purposes of legal notice.’… The Court thus reaffirms its findings and conclusions in the Preliminary Approval Order that the form of the Notice and manner of giving notice satisfy the requirements of Fed. R. Civ. P. 23 and affords due process to the Settlement Class Members.
Fishbein v. All Market Inc., (d/b/a Vita Coco) No. 11-cv-05580 (S.D.N.Y.). In granting final approval of the settlement, the Honorable J. Paul Oetken stated:
"The Court finds that the dissemination of Class Notice pursuant to the Notice Program…constituted the best practicable notice to Settlement Class Members under the circumstances of this Litigation … and was reasonable and constituted due, adequate and sufficient notice to all persons entitled to such notice, and fully satisfied the requirements of the Federal Rules of Civil Procedure, including Rules 23(c)(2) and (e), the United States Constitution (including the Due Process Clause), the Rules of this Court, and any other applicable laws."

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Lucas, et al. v. Kmart Corp., No. 99-cv-01923 (D.Colo.), wherein the Court recognized Jeanne Finegan as an expert in the design of notice programs, and stated:
The Court finds that the efforts of the parties and the proposed Claims Administrator in this respect go above and beyond the "reasonable efforts" required for identifying individual class members under F.R.C.P. 23(c)(2)(B).
In re: Johns-Manville Corp. (Statutory Direct Action Settlement, Common Law Direct Action and Hawaii Settlement), No 82-11656, 57, 660, 661, 665-73, 75 and 76 (BRL) (Bankr. S.D.N.Y.). The nearly half-billion dollar settlement incorporated three separate notification programs, which targeted all persons who had asbestos claims whether asserted or unasserted, against the Travelers Indemnity Company. In the Findings of Fact and Conclusions of a Clarifying Order Approving the Settlements, slip op. at 47-48 (Aug. 17, 2004), the Honorable Burton R. Lifland, Chief Justice, stated:
As demonstrated by Findings of Fact (citation omitted), the Statutory Direct Action Settlement notice program was reasonably calculated under all circumstances to apprise the affected individuals of the proceedings and actions taken involving their interests, Mullane v. Cent. Hanover Bank & Trust Co., 339 U.S. 306, 314 (1950), such program did apprise the overwhelming majority of potentially affected claimants and far exceeded the minimum notice required. . . . The results simply speak for themselves.
Pigford v. Glickman and U.S. Department of Agriculture, No. 97-1978. 98-1693 (PLF) (D.D.C.). This matter was the largest civil rights case to settle in the United States in over 40 years. The highly publicized, nationwide paid media program was designed to alert all present and past African-American farmers of the opportunity to recover monetary damages against the U.S. Department of Agriculture for alleged loan discrimination. In his Opinion, the Honorable Paul L. Friedman commended the parties with respect to the notice program, stating;
The parties also exerted extraordinary efforts to reach class members through a massive advertising campaign in general and African American targeted publications and television stations. . . . The Court concludes that class members have received more than adequate notice and have had sufficient opportunity to be heard on the fairness of the proposed Consent Decree.
In re: Louisiana-Pacific Inner-Seal Siding Litig., Nos. 879-JE, and 1453-JE (D.Or.). Under the terms of the Settlement, three separate notice programs were to be implemented at three-year intervals over a period of six years. In the first notice campaign, Ms. Finegan implemented the print advertising and Internet components of the Notice program. In approving the legal notice communication plan, the Honorable Robert E. Jones stated:

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The notice given to the members of the Class fully and accurately informed the Class members of all material elements of the settlement…[through] a broad and extensive multi-media notice campaign.
Additionally, with regard to the third-year notice program for Louisiana-Pacific, the Honorable Richard Unis, Special Master, commented that the notice was:
…well formulated to conform to the definition set by the court as adequate and reasonable notice. Indeed, I believe the record should also reflect the Court's appreciation to Ms. Finegan for all the work she's done, ensuring that noticing was done correctly and professionally, while paying careful attention to overall costs. Her understanding of various notice requirements under Fed. R. Civ. P. 23, helped to insure that the notice given in this case was consistent with the highest standards of compliance with Rule 23(d)(2).
In re: Expedia Hotel Taxes and Fees Litigation, No. 05-2-02060-1 (SEA) (Sup. Ct. of Wash. in and for King County). In the Order Granting Final Approval of Class Action Settlement, Judge Monica Benton stated:
The Notice of the Settlement given to the Class … was the best notice practicable under the circumstances. All of these forms of Notice directed Class Members to a Settlement Website providing key Settlement documents including instructions on how Class Members could exclude themselves from the Class, and how they could object to or comment upon the Settlement. The Notice provided due and adequate notice of these proceeding and of the matters set forth in the Agreement to all persons entitled to such notice, and said notice fully satisfied the requirements of CR 23 and due process.
Thomas A. Foster and Linda E. Foster v. ABTco Siding Litigation, No. 95-151-M (Cir. Ct., Choctaw County, Ala.). This litigation focused on past and present owners of structures sided with Abitibi-Price siding. The notice program that Ms. Finegan designed and implemented was national in scope and received the following praise from the Honorable J. Lee McPhearson:
The Court finds that the Notice Program conducted by the Parties provided individual notice to all known Class Members and all Class Members who could be identified through reasonable efforts and constitutes the best notice practicable under the circumstances of this Action. This finding is based on the overwhelming evidence of the adequacy of the notice program. … The media campaign involved broad national notice through television and print media, regional and local newspapers, and the Internet (see id. ¶¶9-11) The result: over 90 percent of Abitibi and ABTco owners are estimated to have been reached by the direct media and direct mail campaign.
Wilson v. Massachusetts Mut. Life Ins. Co., No. D-101-CV 98-02814 (First Judicial Dist. Ct., County of Santa Fe, N.M.). This was a nationwide notification program that included all persons

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in the United States who owned, or had owned, a life or disability insurance policy with Massachusetts Mutual Life Insurance Company and had paid additional charges when paying their premium on an installment basis. The class was estimated to exceed 1.6 million individuals. www.insuranceclassclaims.com. In granting preliminary approval to the settlement, the Honorable Art Encinias found:
[T]he Notice Plan [is] the best practicable notice that is reasonably calculated, under the circumstances of the action. …[and] meets or exceeds all applicable requirements of the law, including Rule 1-023(C)(2) and (3) and 1-023(E), NMRA 2001, and the requirements of federal and/or state constitutional due process and any other applicable law.
Sparks v. AT&T Corp., No. 96-LM-983 (Third Judicial Cir., Madison County, Ill.). The litigation concerned all persons in the United States who leased certain AT&T telephones during the 1980’s. Ms. Finegan designed and implemented a nationwide media program designed to target all persons who may have leased telephones during this time period, a class that included a large percentage of the entire population of the United States. In granting final approval to the settlement, the Court found:
The Court further finds that the notice of the proposed settlement was sufficient and furnished Class Members with the information they needed to evaluate whether to participate in or opt out of the proposed settlement. The Court therefore concludes that the notice of the proposed settlement met all requirements required by law, including all Constitutional requirements.
In re: Georgia-Pacific Toxic Explosion Litig., No. 98 CVC05-3535 (Ct. of Common Pleas, Franklin County, Ohio). Ms. Finegan designed and implemented a regional notice program that included network affiliate television, radio and newspaper. The notice was designed to alert adults living near a Georgia-Pacific plant that they had been exposed to an air-born toxic plume and their rights under the terms of the class action settlement. In the Order and Judgment finally approving the settlement, the Honorable Jennifer L. Bunner stated:
[N]otice of the settlement to the Class was the best notice practicable under the circumstances, including individual notice to all members who can be identified through reasonable effort. The Court finds that such effort exceeded even reasonable effort and that the Notice complies with the requirements of Civ. R. 23(C).
In re: American Cyanamid, No. CV-97-0581-BH-M (S.D.Al.). The media program targeted Farmers who had purchased crop protection chemicals manufactured by American Cyanamid. In the Final Order and Judgment, the Honorable Charles R. Butler Jr. wrote:
The Court finds that the form and method of notice used to notify the Temporary Settlement Class of the Settlement satisfied the requirements of Fed. R. Civ. P. 23 and due process, constituted the best notice practicable under the circumstances, and

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constituted due and sufficient notice to all potential members of the Temporary Class Settlement.
In re: First Alert Smoke Alarm Litig., No. CV-98-C-1546-W (UWC) (N.D.Al.). Ms. Finegan designed and implemented a nationwide legal notice and public information program. The public information program ran over a two-year period to inform those with smoke alarms of the performance characteristics between photoelectric and ionization detection. The media program included network and cable television, magazine and specialty trade publications. In the Findings and Order Preliminarily Certifying the Class for Settlement Purposes, Preliminarily Approving Class Settlement, Appointing Class Counsel, Directing Issuance of Notice to the Class, and Scheduling a Fairness Hearing, the Honorable C.W. Clemon wrote that the notice plan:
…constitutes due, adequate and sufficient notice to all Class Members; and (v) meets or exceeds all applicable requirements of the Federal Rules of Civil Procedure, the United States Constitution (including the Due Process Clause), the Alabama State Constitution, the Rules of the Court, and any other applicable law.
In re: James Hardie Roofing Litig., No. 00-2-17945-65SEA (Sup. Ct. of Wash., King County). The nationwide legal notice program included advertising on television, in print and on the Internet. The program was designed to reach all persons who own any structure with JHBP roofing products. In the Final Order and Judgment, the Honorable Steven Scott stated:
The notice program required by the Preliminary Order has been fully carried out… [and was] extensive. The notice provided fully and accurately informed the Class Members of all material elements of the proposed Settlement and their opportunity to participate in or be excluded from it; was the best notice practicable under the circumstances; was valid, due and sufficient notice to all Class Members; and complied fully with Civ. R. 23, the United States Constitution, due process, and other applicable law.
Barden v. Hurd Millwork Co. Inc., et al, No. 2:6-cv-00046 (LA) (E.D.Wis.) ("The Court approves, as to form and content, the notice plan and finds that such notice is the best practicable under the circumstances under Federal Rule of Civil Procedure 23(c)(2)(B) and constitutes notice in a reasonable manner under Rule 23(e)(1).")
Altieri v. Reebok, No. 4:10-cv-11977 (FDS) (D.C.Mass.) ("The Court finds that the notices … constitute the best practicable notice... The Court further finds that all of the notices are written in simple terminology, are readily understandable by Class Members, and comply with the Federal Judicial Center’s illustrative class action notices.")
Marenco v. Visa Inc., No. CV 10-08022 (DMG) (C.D.Cal.) ("[T]he Court finds that the notice plan…meets the requirements of due process, California law, and other applicable precedent. The Court finds that the proposed notice program is designed to provide the Class with the best notice practicable, under the circumstances of this action, of the pendency of this

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litigation and of the proposed Settlement’s terms, conditions, and procedures, and shall constitute due and sufficient notice to all persons entitled thereto under California law, the United States Constitution, and any other applicable law.")
Palmer v. Sprint Solutions, Inc., No. 09-cv-01211 (JLR) (W.D.Wa.) ("The means of notice were reasonable and constitute due, adequate, and sufficient notice to all persons entitled to be provide3d with notice.")
In re: Tyson Foods, Inc., Chicken Raised Without Antibiotics Consumer Litigation, No. 1:08-md01982 RDB (D. Md. N. Div.) (“The notice, in form, method, and content, fully complied with the requirements of Rule 23 and due process, constituted the best notice practicable under the circumstances, and constituted due and sufficient notice to all persons entitled to notice of the settlement.”)
Sager v. Inamed Corp. and McGhan Medical Breast Implant Litigation, No. 01043771 (Sup. Ct. Cal., County of Santa Barbara) (“Notice provided was the best practicable under the circumstances.”).
Deke, et al. v. Cardservice Internat’l, Case No. BC 271679, slip op. at 3 (Sup. Ct. Cal., County of Los Angeles) (“The Class Notice satisfied the requirements of California Rules of Court 1856 and 1859 and due process and constituted the best notice practicable under the circumstances.”).
Levine, et al. v. Dr. Philip C. McGraw, et al., Case No. BC 312830 (Los Angeles County Super. Ct., Cal.) (“[T]he plan for notice to the Settlement Class … constitutes the best notice practicable under the circumstances and constituted due and sufficient notice to the members of the Settlement Class … and satisfies the requirements of California law and federal due process of law.”).
In re: Canadian Air Cargo Shipping Class Actions, Court File No. 50389CP, Ontario Superior Court of Justice, Supreme Court of British Columbia, Quebec Superior Court (“I am satisfied the proposed form of notice meets the requirements of s. 17(6) of the CPA and the proposed method of notice is appropriate.”).
Fischer et al v. IG Investment Management, Ltd. et al, Court File No. 06-CV-307599CP, Ontario Superior Court of Justice.
In re: Vivendi Universal, S.A. Securities Litigation, No. 02-cv-5571 (RJH)(HBP) (S.D.N.Y.).
In re: Air Cargo Shipping Services Antitrust Litigation, No. 06-MD-1775 (JG) (VV) (E.D.N.Y.).
Berger, et al., v. Property ID Corporation, et al., No. CV 05-5373-GHK (CWx) (C.D.Cal.).
Lozano v. AT&T Mobility Wireless, No. 02-cv-0090 CAS (AJWx) (C.D.Cal.).

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Howard A. Engle, M.D., et al., v. R.J. Reynolds Tobacco Co., Philip Morris, Inc., Brown & Williamson Tobacco Corp., No. 94-08273 CA (22) (11th Judicial Dist. Ct. of Miami-Dade County, Fla.).
In re: Royal Dutch/Shell Transport Securities Litigation, No. 04 Civ. 374 (JAP) (Consolidated Cases) (D. N.J.).
In re: Epson Cartridge Cases, Judicial Council Coordination Proceeding, No. 4347 (Sup. Ct. of Cal., County of Los Angeles).
UAW v. General Motors Corporation, No: 05-73991 (E.D.MI).
Wicon, Inc. v. Cardservice Intern’l, Inc., BC 320215 (Sup. Ct. of Cal., County of Los Angeles).
In re: SmithKline Beecham Clinical Billing Litig., No. CV. No. 97-L-1230 (Third Judicial Cir., Madison County, Ill.). Ms. Finegan designed and developed a national media and Internet site notification program in connection with the settlement of a nationwide class action concerning billings for clinical laboratory testing services.
MacGregor v. Schering-Plough Corp., No. EC248041 (Sup. Ct. Cal., County of Los Angeles). This nationwide notification program was designed to reach all persons who had purchased or used an aerosol inhaler manufactured by Schering-Plough. Because no mailing list was available, notice was accomplished entirely through the media program.
In re: Swiss Banks Holocaust Victim Asset Litig., No. CV-96-4849 (E.D.N.Y.). Ms. Finegan managed the design and implementation of the Internet site on this historic case. The site was developed in 21 native languages. It is a highly secure data gathering tool and information hub, central to the global outreach program of Holocaust survivors. www.swissbankclaims.com.
In re: Exxon Valdez Oil Spill Litig., No. A89-095-CV (HRH) (Consolidated) (D. Alaska). Ms. Finegan designed and implemented two media campaigns to notify native Alaskan residents, trade workers, fisherman, and others impacted by the oil spill of the litigation and their rights under the settlement terms.
In re: Johns-Manville Phenolic Foam Litig., No. CV 96-10069 (D. Mass). The nationwide multimedia legal notice program was designed to reach all Persons who owned any structure, including an industrial building, commercial building, school, condominium, apartment house, home, garage or other type of structure located in the United States or its territories, in which Johns-Manville PFRI was installed, in whole or in part, on top of a metal roof deck.
Bristow v Fleetwood Enters Litig., No Civ 00-0082-S-EJL (D. Id). Ms. Finegan designed and implemented a legal notice campaign targeting present and former employees of Fleetwood Enterprises, Inc., or its subsidiaries who worked as hourly production workers at Fleetwood’s

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housing, travel trailer, or motor home manufacturing plants. The comprehensive notice campaign included print, radio and television advertising.
In re: New Orleans Tank Car Leakage Fire Litig., No 87-16374 (Civil Dist. Ct., Parish of Orleans, LA) (2000). This case resulted in one of the largest settlements in U.S. history. This campaign consisted of a media relations and paid advertising program to notify individuals of their rights under the terms of the settlement.
Garria Spencer v. Shell Oil Co., No. CV 94-074(Dist. Ct., Harris County, Tex.). The nationwide notification program was designed to reach individuals who owned real property or structures in the United States, which contained polybutylene plumbing with acetyl insert or metal insert fittings.
In re: Hurd Millwork Heat MirrorΡ Litig., No. CV-772488 (Sup. Ct. of Cal., County of Santa Clara). This nationwide multi-media notice program was designed to reach class members with failed heat mirror seals on windows and doors, and alert them as to the actions that they needed to take to receive enhanced warranties or window and door replacement.
Laborers Dist. Counsel of Alabama Health and Welfare Fund v. Clinical Lab. Servs., Inc, No. CV–97-C-629-W (N.D. Ala.). Ms. Finegan designed and developed a national media and Internet site notification program in connection with the settlement of a nationwide class action concerning alleged billing discrepancies for clinical laboratory testing services.
In re: StarLink Corn Prods. Liab. Litig., No. 01-C-1181 (N.D. Ill).. Ms. Finegan designed and implemented a nationwide notification program designed to alert potential class members of the terms of the settlement.
In re: MCI Non-Subscriber Rate Payers Litig., MDL Docket No. 1275, 3:99-cv-01275 (S.D.Ill.). The advertising and media notice program, found to be “more than adequate” by the Court, was designed with the understanding that the litigation affected all persons or entities who were customers of record for telephone lines presubscribed to MCI/World Com, and were charged the higher non-subscriber rates and surcharges for direct-dialed long distance calls placed on those lines. www.rateclaims.com.
In re: Albertson’s Back Pay Litig., No. 97-0159-S-BLW (D.Id.). Ms. Finegan designed and developed a secure Internet site, where claimants could seek case information confidentially.
In re: Georgia Pacific Hardboard Siding Recovering Program, No. CV-95-3330-RG (Cir. Ct., Mobile County, Ala.). Ms. Finegan designed and implemented a multi-media legal notice program, which was designed to reach class members with failed G-P siding and alert them of the pending matter. Notice was provided through advertisements, which aired on national cable networks, magazines of nationwide distribution, local newspaper, press releases and trade magazines.

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In re: Diet Drugs (Phentermine, Fenfluramine, Dexfenfluramine) Prods. Liab. Litig., Nos. 1203, 99-20593. Ms. Finegan worked as a consultant to the National Diet Drug Settlement Committee on notification issues. The resulting notice program was described and complimented at length in the Court’s Memorandum and Pretrial Order 1415, approving the settlement,
In re: Diet Drugs (Phentermine, Fenfluramine, Dexfenfluramine) Prods. Liab. Litig., 2000 WL 1222042, Nos. 1203, 99-20593 (E.D.Pa. Aug. 28, 2002).
Ms. Finegan designed the Notice programs for multiple state antitrust cases filed against the Microsoft Corporation. In those cases, it was generally alleged that Microsoft unlawfully used anticompetitive means to maintain a monopoly in markets for certain software, and that as a result, it overcharged consumers who licensed its MS-DOS, Windows, Word, Excel and Office software. The multiple legal notice programs designed by Jeanne Finegan and listed below targeted both individual users and business users of this software. The scientifically designed notice programs took into consideration both media usage habits and demographic characteristics of the targeted class members.
In re: Florida Microsoft Antitrust Litig. Settlement, No. 99-27340 CA 11 (11th Judicial Dist. Ct. of Miami-Dade County, Fla.).
In re: Montana Microsoft Antitrust Litig. Settlement, No. DCV 2000 219 (First Judicial Dist. Ct., Lewis & Clark Co., Mt.).
In re: South Dakota Microsoft Antitrust Litig. Settlement, No. 00-235(Sixth Judicial Cir., County of Hughes, S.D.).
In re: Kansas Microsoft Antitrust Litig. Settlement, No. 99C17089 Division No. 15 Consolidated Cases (Dist. Ct., Johnson County, Kan.) (“The Class Notice provided was the best notice practicable under the circumstances and fully complied in all respects with the requirements of due process and of the Kansas State. Annot. §60-22.3.”).
In re: North Carolina Microsoft Antitrust Litig. Settlement, No. 00-CvS-4073 (Wake) 00-CvS1246 (Lincoln) (General Court of Justice Sup. Ct., Wake and Lincoln Counties, N.C.).
In re: ABS II Pipes Litig., No. 3126 (Sup. Ct. of Cal., Contra Costa County). The Court approved regional notification program designed to alert those individuals who owned structures with the pipe that they were eligible to recover the cost of replacing the pipe.
In re: Avenue A Inc. Internet Privacy Litig., No: C00-1964C (W.D. Wash.).
In re: Lorazepam and Clorazepate Antitrust Litig., No. 1290 (TFH) (D.C.C.).
In re: Providian Fin. Corp. ERISA Litig., No C-01-5027 (N.D. Cal.).

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In re: H & R Block., et al Tax Refund Litig., No. 97195023/CC4111 (MD Cir. Ct., Baltimore City). In re: American Premier Underwriters, Inc, U.S. Railroad Vest Corp., No. 06C01-9912 (Cir. Ct., Boone County, Ind.). In re: Sprint Corp. Optical Fiber Litig., No: 9907 CV 284 (Dist. Ct., Leavenworth County, Kan). In re: Shelter Mutual Ins. Co. Litig., No. CJ-2002-263 (Dist.Ct., Canadian County. Ok). In re: Conseco, Inc. Sec. Litig., No: IP-00-0585-C Y/S CA (S.D. Ind.). In re: Nat’l Treasury Employees Union, et al., 54 Fed. Cl. 791 (2002). In re: City of Miami Parking Litig., Nos. 99-21456 CA-10, 99-23765 – CA-10 (11th Judicial Dist. Ct. of Miami-Dade County, Fla.). In re: Prime Co. Incorporated D/B/A/ Prime Co. Personal Comm., No. L 1:01CV658 (E.D. Tx.). Alsea Veneer v. State of Oregon A.A., No. 88C-11289-88C-11300.

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INTERNATIONAL EXPERIENCE Bell v. Canadian Imperial Bank of Commerce, et al, Court File No.: CV-08-359335 (Ontario Superior Court of Justice); (2016). In re: Canadian Air Cargo Shipping Class Actions (Ontario Superior Court of Justice, Court File No. 50389CP, Supreme Court of British Columbia. In re: Canadian Air Cargo Shipping Class Actions (Québec Superior Court). Fischer v. IG Investment Management LTD., No. 06-CV-307599CP (Ontario Superior Court of Justice). In Re Nortel I & II Securities Litigation, Civil Action No. 01-CV-1855 (RMB), Master File No. 05 MD 1659 (LAP) (S.D.N.Y. 2006). Frohlinger v. Nortel Networks Corporation et al., Court File No.: 02-CL-4605 (Ontario Superior Court of Justice). Association de Protection des Épargnants et Investissuers du Québec v. Corporation Nortel Networks, No.: 500-06-0002316-017 (Superior Court of Québec). Jeffery v. Nortel Networks Corporation et al., Court File No.: S015159 (Supreme Court of British Columbia). Gallardi v. Nortel Networks Corporation, No. 05-CV-285606CP (Ontario Superior Court). Skarstedt v. Corporation Nortel Networks, No. 500-06-000277-059 (Superior Court of Québec).
SEC ENFORCEMENT NOTICE PROGRAM EXPERIENCE SEC v. Vivendi Universal, S.A., et al., Case No. 02 Civ. 5571 (RJH) (HBP) (S.D.N.Y.). The Notice program included publication in 11 different countries and eight different languages. SEC v. Royal Dutch Petroleum Company, No.04-3359 (S.D. Tex.)

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FEDERAL TRADE COMMISSION NOTICE PROGRAM EXPERIENCE
FTC v. TracFone Wireless, Inc., Case No. 15-cv-00392-EMC.
FTC v. Skechers U.S.A., Inc., No. 1:12-cv-01214-JG (N.D. Ohio).
FTC v. Reebok International Ltd., No. 11-cv-02046 (N.D. Ohio)
FTC v. Chanery and RTC Research and Development LLC [Nutraquest], No :05-cv-03460 (D.N.J.)
BANKRUPTCY EXPERIENCE
Ms. Finegan has designed and implemented hundreds of domestic and international bankruptcy notice programs. A sample case list includes the following:
In Re: PG&E Corporation Case No . 19-30088 Bankr. N.D. Cal. 2019). Hearing Establishing, Deadline for Filing Proofs of Claim, (II) establishing the Form and Manner of Notice Thereof, and (III) Approving Procedures for Providing Notice of Bar Date and Other Information to all Creditors and Potential Creditors PG&E. June 26, 2019, Transcript of Hearing p. 21:1, the Honorable Dennis Montali stated: …the technology and the thought that goes into all these plans is almost incomprehensible. He further stated, p. 201:20 … Ms. Finegan has really impressed me today…
In re AMR Corporation [American Airlines], et al., No. 11-15463 (SHL) (Bankr. S.D.N.Y.) ("due and proper notice [was] provided, and … no other or further notice need be provided.")
In re Jackson Hewitt Tax Service Inc., et al., No 11-11587 (Bankr. D.Del.) (2011). The debtors sought to provide notice of their filing as well as the hearing to approve their disclosure statement and confirm their plan to a large group of current and former customers, many of whom current and viable addresses promised to be a difficult (if not impossible) and costly undertaking. The court approved a publication notice program designed and implemented by Finegan and the administrator, that included more than 350 local newspaper and television websites, two national online networks (24/7 Real Media, Inc. and Microsoft Media Network), a website notice linked to a press release and notice on eight major websites, including CNN and Yahoo. These online efforts supplemented the print publication and direct-mail notice provided to known claimants and their attorneys, as well as to the state attorneys general of all 50 states. The Jackson Hewitt notice program constituted one of the first large chapter 11 cases to incorporate online advertising.
In re: Nutraquest Inc., No. 03-44147 (Bankr. D.N.J.)
In re: General Motors Corp. et al, No. 09-50026 (Bankr. S.D.N.Y.). This case is the 4th largest bankruptcy in U.S. history. Ms. Finegan and her team worked with General Motors restructuring attorneys to design and implement the legal notice program.

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In re: ACandS, Inc., No. 0212687 (Bankr. D.Del.) (2007) (“Adequate notice of the Motion and of the hearing on the Motion was given.”).
In re: United Airlines, No. 02-B-48191 (Bankr. N.D Ill.). Ms. Finegan worked with United and its restructuring attorneys to design and implement global legal notice programs. The notice was published in 11 countries and translated into 6 languages. Ms. Finegan worked closely with legal counsel and UAL’s advertising team to select the appropriate media and to negotiate the most favorable advertising rates. www.pd-ual.com.
In re: Enron, No. 01-16034 (Bankr. S.D.N.Y.). Ms. Finegan worked with Enron and its restructuring attorneys to publish various legal notices.
In re: Dow Corning, No. 95-20512 (Bankr. E.D. Mich.). Ms. Finegan originally designed the information website. This Internet site is a major information hub that has various forms in 15 languages.
In re: Harnischfeger Inds., No. 99-2171 (RJW) Jointly Administered (Bankr. D. Del.). Ms. Finegan designed and implemented 6 domestic and international notice programs for this case. The notice was translated into 14 different languages and published in 16 countries.
In re: Keene Corp., No. 93B 46090 (SMB), (Bankr. E.D. MO.). Ms. Finegan designed and implemented multiple domestic bankruptcy notice programs including notice on the plan of reorganization directed to all creditors and all Class 4 asbestos-related claimants and counsel.
In re: Lamonts, No. 00-00045 (Bankr. W.D. Wash.). Ms. Finegan designed an implemented multiple bankruptcy notice programs.
In re: Monet Group Holdings, Nos. 00-1936 (MFW) (Bankr. D. Del.). Ms. Finegan designed and implemented a bar date notice.
In re: Laclede Steel Co., No. 98-53121-399 (Bankr. E.D. MO.). Ms. Finegan designed and implemented multiple bankruptcy notice programs.
In re: Columbia Gas Transmission Corp., No. 91-804 (Bankr. S.D.N.Y.). Ms. Finegan developed multiple nationwide legal notice notification programs for this case.
In re: U.S.H. Corp. of New York, et al. (Bankr. S.D.N.Y). Ms. Finegan designed and implemented a bar date advertising notification campaign.
In re: Best Prods. Co., Inc., No. 96-35267-T, (Bankr. E.D. Va.). Ms. Finegan implemented a national legal notice program that included multiple advertising campaigns for notice of sale, bar date, disclosure and plan confirmation.

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In re: Lodgian, Inc., et al., No. 16345 (BRL) Factory Card Outlet – 99-685 (JCA), 99-686 (JCA) (Bankr. S.D.N.Y).
In re: Internat’l Total Servs, Inc., et al., Nos. 01-21812, 01-21818, 01-21820, 01-21882, 0121824, 01-21826, 01-21827 (CD) Under Case No: 01-21812 (Bankr. E.D.N.Y).
In re: Decora Inds., Inc. and Decora, Incorp., Nos. 00-4459 and 00-4460 (JJF) (Bankr. D. Del.).
In re: Genesis Health Ventures, Inc., et al, No. 002692 (PJW) (Bankr. D. Del.).
In re: Tel. Warehouse, Inc., et al, No. 00-2105 through 00-2110 (MFW) (Bankr. D. Del.).
In re: United Cos. Fin. Corp., et al, No. 99-450 (MFW) through 99-461 (MFW) (Bankr. D. Del.).
In re: Caldor, Inc. New York, The Caldor Corp., Caldor, Inc. CT, et al., No. 95-B44080 (JLG) (Bankr. S.D.N.Y).
In re: Physicians Health Corp., et al., No. 00-4482 (MFW) (Bankr. D. Del.).
In re: GC Cos., et al., Nos. 00-3897 through 00-3927 (MFW) (Bankr. D. Del.).
In re: Heilig-Meyers Co., et al., Nos. 00-34533 through 00-34538 (Bankr. E.D. Va.).
PRODUCT RECALL AND CRISIS COMMUNICATION EXPERIENCE
Reser’s Fine Foods. Reser’s is a nationally distributed brand and manufacturer of food products through giants such as Albertsons, Costco, Food Lion, WinnDixie, Ingles, Safeway and Walmart. Ms. Finegan designed an enterprise-wide crisis communication plan that included communications objectives, crisis team roles and responsibilities, crisis response procedures, regulatory protocols, definitions of incidents that require various levels of notice, target audiences, and threat assessment protocols. Ms. Finegan worked with the company through two nationwide, high profile recalls, conducting extensive media relations efforts.
Gulf Coast Claims Facility Notice Campaign. Finegan coordinated a massive outreach effort throughout the Gulf Coast region to notify those who have claims as a result of damages caused by the Deep Water Horizon Oil spill. The notice campaign included extensive advertising in newspapers throughout the region, Internet notice through local newspaper, television and radio websites and media relations. The Gulf Coast Claims Facility (GCCF) was an independent claims facility, funded by BP, for the resolution of claims by individuals and businesses for damages incurred as a result of the oil discharges due to the Deepwater Horizon incident on April 20, 2010.

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City of New Orleans Tax Revisions, Post-Hurricane Katrina. In 2007, the City of New Orleans revised property tax assessments for property owners. As part of this process, it received numerous appeals to the assessments. An administration firm served as liaison between the city and property owners, coordinating the hearing schedule and providing important information to property owners on the status of their appeal. Central to this effort was the comprehensive outreach program designed by Ms. Finegan, which included a website and a heavy schedule of television, radio and newspaper advertising, along with the coordination of key news interviews about the project picked up by local media.
ARTICLES/ SOCIAL MEDIA
Tweet Chat: Contributing Panelist #Law360SocialChat, A live Tweet workshop concerning the benefits and pit-falls of social media, Lexttalk.com, November 7, 2019.
Author, “Top Class Settlement Admin Factors to Consider in 2020” Law360, New York, (October 31, 2019, 5:44 PM ET).
Author, “Creating a Class Notice Program that Satisfies Due Process” Law360, New York, (February 13, 2018 12:58 PM ET).
Author, “3 Considerations for Class Action Notice Brand Safety” Law360, New York, (October 2, 2017 12:24 PM ET).
Author, “What Would Class Action Reform Mean for Notice?” Law360, New York, (April 13, 2017 11:50 AM ET).
Author, “Bots Can Silently Steal your Due Process Notice.” Wisconsin Law Journal, April 2017.
Author, “Don’t Turn a Blind Eye to Bots. Ad Fraud and Bots are a Reality of the Digital Environment.” LinkedIn article March 6, 2107.
Co-Author, “Modern Notice Requirements Through the Lens of Eisen and Mullane” – Bloomberg - BNA Class Action Litigation Report, 17 CLASS 1077, (October 14, 2016).
Author, “Think All Internet Impressions Are The Same? Think Again” – Law360.com, New York (March 16, 2016, 3:39 ET).
Author, “Why Class Members Should See an Online Ad More Than Once” – Law360.com, New York, (December 3, 2015, 2:52 PM ET).
Author, ‘Being 'Media-Relevant' — What It Means and Why It Matters - Law360.com, New York (September 11, 2013, 2:50 PM ET).

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Co-Author, “New Media Creates New Expectations for Bankruptcy Notice Programs,” ABI Journal, Vol. XXX, No 9, (November 2011).
Quoted Expert, “Effective Class Action Notice Promotes Access to Justice: Insight from a New U.S. Federal Judicial Center Checklist,” Canadian Supreme Court Law Review, (2011), 53 S.C.L.R. (2d).
Co-Author, with Hon. Dickran Tevrizian – “Expert Opinion: It’s More Than Just a Report…Why Qualified Legal Experts Are Needed to Navigate the Changing Media Landscape,” BNA Class Action Litigation Report, 12 CLASS 464, May 27, 2011.
Co-Author, with Hon. Dickran Tevrizian, Your Insight, "Expert Opinion: It's More Than Just a Report -Why Qualified Legal Experts Are Needed to Navigate the Changing Media Landscape," TXLR, Vol. 26, No. 21, May 26, 2011.
Quoted Expert, “Analysis of the FJC’s 2010 Judges’ Class Action Notice and Claims Process Checklist and Guide: A New Roadmap to Adequate Notice and Beyond,” BNA Class Action Litigation Report, 12 CLASS 165, February 25, 2011.
Author, Five Key Considerations for a Successful International Notice Program, BNA Class Action Litigation Report, April, 9, 2010 Vol. 11, No. 7 p. 343.
Quoted Expert, “Communication Technology Trends Pose Novel Notification Issues for Class Litigators,” BNA Electronic Commerce and Law, 15 ECLR 109 January 27, 2010.
Author, “Legal Notice: R U ready 2 adapt?” BNA Class Action Report, Vol. 10 Class 702, July 24, 2009.
Author, “On Demand Media Could Change the Future of Best Practicable Notice,” BNA Class Action Litigation Report, Vol. 9, No. 7, April 11, 2008, pp. 307-310.
Quoted Expert, “Warranty Conference: Globalization of Warranty and Legal Aspects of Extended Warranty,” Warranty Week, warrantyweek.com/archive/ww20070228.html/ February 28, 2007.
Co-Author, “Approaches to Notice in State Court Class Actions,” For The Defense, Vol. 45, No. 11, November, 2003.
Citation, “Recall Effectiveness Research: A Review and Summary of the Literature on Consumer Motivation and Behavior,” U.S. Consumer Product Safety Commission, CPSC-F-02-1391, p.10, Heiden Associates, July 2003.
Author, “The Web Offers Near, Real-Time Cost Efficient Notice,” American Bankruptcy Institute, ABI Journal, Vol. XXII, No. 5., 2003.

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Author, “Determining Adequate Notice in Rule 23 Actions,” For The Defense, Vol. 44, No. 9 September, 2002.

Author, “Legal Notice, What You Need to Know and Why,” Monograph, July 2002.

Co-Author, “The Electronic Nature of Legal Noticing,” The American Bankruptcy Institute Journal, Vol. XXI, No. 3, April 2002.

Author, “Three Important Mantras for CEO’s and Risk Managers,” - International Risk Management Institute, irmi.com, January 2002.

Co-Author, “Used the Bat Signal Lately,” The National Law Journal, Special Litigation Section, February 19, 2001.

Author, “How Much is Enough Notice,” Dispute Resolution Alert, Vol. 1, No. 6. March 2001.

Author, “Monitoring the Internet Buzz,” The Risk Report, Vol. XXIII, No. 5, Jan. 2001.

Author, “High-Profile Product Recalls Need More Than the Bat Signal,” - International Risk Management Institute, irmi.com, July 2001.

Co-Author, “Do You Know What 100 Million People are Buzzing About Today?” Risk and Insurance Management, March 2001.

Quoted Article, “Keep Up with Class Action,” Kentucky Courier Journal, March 13, 2000.

Author, “The Great Debate - How Much is Enough Legal Notice?” American Bar Association – Class Actions and Derivatives Suits Newsletter, winter edition 1999.

SPEAKER/EXPERT PANELIST/PRESENTER

Chief Litigation Counsel Association (CLCA)

Speaker, “Four Factors Impacting the Cost of Your Class Action Settlement and Notice,” Houston TX, May 1, 2019

CLE Webinar

“Rule 23 Changes to Notice, Are You Ready for the Digital Wild, Wild West?” October 23, 2018, https://bit.ly/2RIRvZq

American Bar Assn.

Faculty Panelist, 4th Annual Western Regional CLE Class Actions, “Big Brother, Information Privacy, and Class Actions: How Big Data and Social Media are Changing the Class Action Landscape” San Francisco, CA June, 2018.

Miami Law Class Action Faculty Panelist, “ Settlement and Resolution of Class Actions,”

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& Complex Litigation Forum Miami, FL December 2, 2016.

The Knowledge Group

Faculty Panelist, “Class Action Settlements: Hot Topics 2016 and Beyond,” Live Webcast, www.theknowledgegroup.org, October 2016.

ABA National Symposium Faculty Panelist, “Ethical Considerations in Settling Class Actions,” New Orleans, LA, March 2016.

S.F. Banking Attorney Assn. Speaker, “How a Class Action Notice can Make or Break your Client’s Settlement,” San Francisco, CA, May 2015.

Perrin Class Action Conf.

Faculty Panelist, “Being Media Relevant, What It Means and Why It Matters – The Social Media Evolution: Trends, Challenges and Opportunities,” Chicago, IL May 2015.

Bridgeport Continuing Ed. Speaker, Webinar “Media Relevant in the Class Notice Context.” July, 2014.

Bridgeport Continuing Ed. Faculty Panelist, “Media Relevant in the Class Notice Context.” Los Angeles, California, April 2014.

CASD 5th Annual

Speaker, “The Impact of Social Media on Class Action Notice.” Consumer Attorneys of San Diego Class Action Symposium, San Diego, California, September 2012.

Law Seminars International

Speaker, “Class Action Notice: Rules and Statutes Governing FRCP (b)(3) Best Practicable… What constitutes a best practicable notice? What practitioners and courts should expect in the new era of online and social media.” Chicago, IL, October 2011. *Voted by attendees as one of the best presentations given.

CASD 4th Annual

Faculty Panelist, “Reasonable Notice - Insight for practitioners on the FJC’s Judges’ Class Action Notice and Claims Process Checklist and Plain Language Guide. Consumer Attorneys of San Diego Class Action Symposium, San Diego, California, October 2011.

CLE International

Faculty Panelist, Building a Workable Settlement Structure, CLE International, San Francisco, California May, 2011.

CASD

Faculty Panelist, “21st Century Class Notice and Outreach.” 3nd Annual Class Action Symposium CASD Symposium, San Diego, California, October 2010.

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CASD

Faculty Panelist, “The Future of Notice.” 2nd Annual Class Action Symposium CASD Symposium, San Diego California, October 2009.

American Bar Association

Speaker, 2008 Annual Meeting, “Practical Advice for Class Action Settlements: The Future of Notice In the United States and Internationally – Meeting the Best Practicable Standard.” Section of Business Law Business and Corporate Litigation Committee – Class and Derivative Actions Subcommittee, New York, NY, August 2008.

Women Lawyers Assn.

Faculty Panelist, Women Lawyers Association of Los Angeles “The Anatomy of a Class Action.” Los Angeles, CA, February, 2008.

Warranty Chain Mgmt.

Faculty Panelist, Presentation Product Recall Simulation. Tampa, Florida, March 2007.

Practicing Law Institute.

Faculty Panelist, CLE Presentation, 11th Annual Consumer Financial Services Litigation. Presentation: Class Action Settlement Structures – Evolving Notice Standards in the Internet Age. New York/Boston (simulcast), NY March 2006; Chicago, IL April 2006 and San Francisco, CA, May 2006.

U.S. Consumer Product Safety Commission

Ms. Finegan participated as an invited expert panelist to the CPSC to discuss ways in which the CPSC could enhance and measure the recall process. As a panelist, Ms Finegan discussed how the CPSC could better motivate consumers to take action on recalls and how companies could scientifically measure and defend their outreach efforts. Bethesda, MD, September 2003.

Weil, Gotshal & Manges Presenter, CLE presentation, “A Scientific Approach to Legal Notice Communication.” New York, June 2003.

Sidley & Austin

Presenter, CLE presentation, “A Scientific Approach to Legal Notice Communication.” Los Angeles, May 2003.

Kirkland & Ellis

Speaker to restructuring group addressing “The Best Practicable Methods to Give Notice in a Tort Bankruptcy.” Chicago, April 2002.

Georgetown University Law Faculty, CLE White Paper: “What are the best practicable methods to Center Mass Tort Litigation give notice? Dispelling the communications myth – A notice Institute disseminated is a notice communicated,” Mass Tort Litigation Institute. Washington D.C., November, 2001.

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American Bar Association

Presenter, “How to Bullet-Proof Notice Programs and What Communication Barriers Present Due Process Concerns in Legal Notice,” ABA Litigation Section Committee on Class Actions & Derivative Suits. Chicago, IL, August 6, 2001.

McCutchin, Doyle, Brown

Speaker to litigation group in San Francisco and simulcast to four other McCutchin locations, addressing the definition of effective notice and barriers to communication that affect due process in legal notice. San Francisco, CA, June 2001.

Marylhurst University

Guest lecturer on public relations research methods. Portland, OR, February 2001.

University of Oregon

Guest speaker to MBA candidates on quantitative and qualitative research for marketing and communications programs. Portland, OR, May 2001.

Judicial Arbitration &

Speaker on the definition of effective notice. San Francisco and Los

Mediation Services (JAMS) Angeles, CA, June 2000.

International Risk Management Institute

Past Expert Commentator on Crisis and Litigation Communications. www.irmi.com.

The American Bankruptcy Past Contributing Editor – Beyond the Quill. www.abi.org. Institute Journal (ABI)

BACKGROUND

Ms Finegan’s past experience includes working in senior management for leading Class Action Administration firms including The Garden City Group (“GCG”) and Poorman-Douglas Corp., (“EPIQ”). Ms. Finegan co-founded Huntington Advertising, a nationally recognized leader in legal notice communications. After Fleet Bank purchased her firm in 1997, she grew the company into one of the nation’s leading legal notice communication agencies.

Prior to that, Ms. Finegan spearheaded Huntington Communications, (an Internet development company) and The Huntington Group, Inc., (a public relations firm). As a partner and consultant, she has worked on a wide variety of client marketing, research, advertising, public relations and Internet programs. During her tenure at the Huntington Group, client projects included advertising (media planning and buying), shareholder meetings, direct mail, public relations (planning, financial communications) and community outreach programs. Her past client list includes large public and privately held companies: Code-A-Phone Corp., ThriftyPayless Drug Stores, Hyster-Yale, The Portland Winter Hawks Hockey Team, U.S. National Bank, U.S. Trust Company, Morley Capital Management, and Durametal Corporation.

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Prior to Huntington Advertising, Ms. Finegan worked as a consultant and public relations specialist for a West Coast-based Management and Public Relations Consulting firm.
Additionally, Ms. Finegan has experience in news and public affairs. Her professional background includes being a reporter, anchor and public affairs director for KWJJ/KJIB radio in Portland, Oregon, as well as reporter covering state government for KBZY radio in Salem, Oregon. Ms. Finegan worked as an assistant television program/promotion manager for KPDX directing $50 million in programming. She was also the program/promotion manager at KECH22 television.
Ms. Finegan's multi-level communication background gives her a thorough, hands-on understanding of media, the communication process, and how it relates to creating effective and efficient legal notice campaigns.
MEMBERSHIPS, PROFESSIONAL CREDENTIALS
APR Accredited. Universal Board of Accreditation Public Relations Society of America x Member of the Public Relations Society of America x Member Canadian Public Relations Society
Board of Directors - Alliance for Audited Media Alliance for Audited Media (“AAM”) is the recognized leader in cross-media verification. It was founded in 1914 as the Audit Bureau of Circulations (ABC) to bring order and transparency to the media industry. Today, more than 4,000 publishers, advertisers, agencies and technology vendors depend on its data-driven insights, technology certification audits and information services to transact with trust.
SOCIAL MEDIA
LinkedIn: www.linkedin.com/in/jeanne-finegan-apr-7112341b

Jeanne C. Finegan, APR CV

31

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1 EILEEN R. RIDLEY (SBN 151735)

2

eridley@foley.com ALAN R. OUELLETTE (SBN 272745)

3 aouellette@foley.com FOLEY & LARDNER LLP

4 555 California Street, Suite 1700

San Francisco, CA 94104-1520 5 T: 415.434.4484 // F: 415.434.4507

ROBERT L. TEEL (SBN 127081) lawoffice@rlteel.com
LAW OFFICE OF ROBERT L. TEEL 1425 Broadway, Mail Code: 20-6690 Seattle, Washington 98122 T: 866.833.5529 // F: 855.609.6911

6 GEOFFREY M. RAUX (pro hac vice)

7 graux@foley.com

FOLEY & LARDNER LLP

8 111 Huntington Avenue

9

Boston, MA 02199-7610 T: 617.342.4000 // F: 617.342.4001

10

11

Attorneys for Plaintiffs SYLVESTER OWINO, JONATHAN GOMEZ, and the Proposed Class(es)

12

UNITED STATES DISTRICT COURT

13

SOUTHERN DISTRICT OF CALIFORNIA

14
SYLVESTER OWINO and JONATHAN ) Case No. 3:17-CV-01112-JLS-NLS

15 GOMEZ, on behalf of themselves and all )

others similarly situated,

)

16

Plaintiffs,

) CLASS ACTION )

17

vs.

) ) DECLARATION OF JEANNE C.

18 CORECIVIC, INC.,

) FINEGAN REGARDING NOTICE ) PLAN

19

Defendant. )

)

20
CORECIVIC, INC.,

) ) Judge: Hon. Janis L. Sammartino

21

Counter-Claimant,

) Magistrate: Hon. Nita L. Stormes )

22

)

)

23

vs.

)

)

24 SYLVESTER OWINO and JONATHAN ) GOMEZ, on behalf of themselves and all )

25 others similarly situated,

)

26

Counter-Defendants.

) )

)

27

28

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Case 2:12-cv-09012-AB-FFM Document 610 Filed 11/25/20 Page 133 of 147 Page ID #:21248

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1

5. Accordingly, the media outreach will be tiered with the greatest media weight

2 focusing on those countries representing the largest population of Class Members. A tiered

3 approach to Notice has been approved by courts in other international notice programs,

4 including Air Cargo Shipping Servs. Antitrust Litig., No. 1:06-MD-01775-CBA-VVP

5 (E.D.N.Y.); Dover, et al. v. British Airways PLC, No. 1:12-CV-05567 (E.D.N.Y.); In re

6 Mexico Money Transfer Litig. (W. Union & Valuta), 164 F. Supp. 2d 1002 (N.D. Ill. 2000);

7 In re W. Union Money Transfer Litig., No. CV-01-0335 (CPS), 2004 WL 3709932

8 (E.D.N.Y. Oct. 19, 2004); and In re Royal Ahold N.V. Sec. & ERISA Litig., 437 F. Supp.

9 2d 467 (D. Md. 2006); among others.

10

6. This Declaration will describe and detail the proposed Notice Program and

11 address why it is consistent with other best practicable court-approved notice programs,

12 the requirements of Federal Rule of Civil Procedure 23(c)(2)(B), and the Federal Judicial

13 Center guidelines2 for Best Practicable Due Process Notice.

14

QUALIFICATIONS

15

7. I previously set out detailed information concerning my credentials and

16 qualifications in this case for the Court and provided my Curriculum Vitae in connection

17 with Plaintiffs’ July 14, 2020 submission to the Court. In summary, my credentials that

18 qualify me to provide an expert opinion regarding notice in this matter include more than

19 30 years of communications and advertising experience. I have also planned and

20 implemented over 1,000 high-profile, complex legal notice communication programs. I

21 have extensive experience providing notice to international classes spanning more than 170

22 countries and over 40 languages. I am the only Notice Expert accredited in Public Relations

23 (APR) by the Universal Accreditation Board, a program administered by the Public

24 Relations Society of America. Further, I have provided testimony before Congress on

25 issues of notice. I have lectured, published and been cited extensively on various aspects

26 of legal noticing, product recall and crisis communications and have served the Consumer

27

28 2 Judges’ Class Action Notice and Claims Process Checklist and Plain Language Guide,

Federal Judicial Center (2010), https://www.fjc.gov/sites/default/files/2012/NotCheck.pdf.

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1 Product Safety Commission (CPSC) as an expert to determine ways in which the CPSC

2 can increase the effectiveness of its product recall campaigns. More recently, I was

3 extensively involved as a contributing author for “Guidelines and Best Practices

4 Implementing 2018 Amendments to Rule 23 Class Action Settlement Provisions,”

5 published by Duke University School of Law. I am also a member of the Board of Directors

6 for the Alliance for Audited Media.

7

8. I have served as an expert, with day-to-day operational responsibilities,

8 directly responsible for the design and implementation of class action notice programs,

9 some of which are the largest and most complex programs ever implemented in both the

10 United States and in Canada. My work includes a wide range of class actions and regulatory

11 and consumer matters that include product liability, construction defect, antitrust, asbestos,

12 medical, pharmaceutical, human rights, civil rights, telecommunications, media,

13 environmental, securities, banking, insurance and bankruptcy.

14

9. Additionally, I have been at the forefront of modern notice, including plain

15 language as noted in a RAND study,3 and importantly, I was the first Notice Expert to

16 integrate digital media and social media into court-approved legal notice programs.

17

SUMMARY OF NOTICE PROGRAM

18

10. This Notice Program is designed to inform potential Class Members of the

19 certification of this class and their rights and obligations. The members of the three certified

20 classes fall within three categories:

21

(1) Individuals who were detained at any CoreCivic facility in the United States

22

any time between December 23, 2008 and the present, AND were coerced or forced to clean areas of the facility outside of their personal living area

23

under threat of punishment.

24

(2) Individuals who were detained at one of these CoreCivic facilities in

25

California: Otay Mesa Detention Center in Otay Mesa, CA, the San Diego Correctional Facility in Otay Mesa, CA, or the California City Correctional

26

Facility in California City, CA any time between January 1, 2006 and the

27

28 3 Deborah R. Hensler et al., Class Action Dilemmas: Pursuing Public Goals for Private

Gain (2000).

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1

present, AND were coerced or forced to clean areas of the facility outside of

2

their personal living area under threat of punishment.

3

(3) Individuals who were detained at any CoreCivic facility in California listed

above any time between May 31, 2013 and the present, AND participated in

4

the Voluntary Work Program.

5

6

NOTICE PLAN METHODOLOGY

7

11. To appropriately design and target the media outreach component of the

8 notice plan, Heffler is guided by well-established principles of communication and utilizes

9 best-in class nationally syndicated media research data relevant to individuals residing in

10 the United States and Mexico. In the United States, media use across the Hispanic/Latino

11 population is tracked by GfK Mediamark Research and Intelligence, LLC (“MRI”),4

12 comScore,5 Nielsen,6 and Ad Age’s Hispanic Fact Pact.7 In Mexico and Central America,

13 Heffler relied on comScore Latin America, among other sources, to provide media

14 consumption habits and audience delivery verification for the potential Class Members.

15

12. The data resources on which this Notice Program relies are used by

16 advertising agencies nationwide as the basis to select the most appropriate media to reach

17 specific target audiences. These research reports are instrumental in our selection of media

18 channels and outlets for determining the estimated net audience reached through this

19

20 4 GfK MRI's Survey of the American Consumer® is the industry standard for magazine

21

audience ratings in the U.S. and is used in the majority of media and marketing agencies in the country. MRI provides comprehensive reports on demographic, lifestyle, product

22

usage and media exposure. 5 comScore is a global Internet information provider on which leading companies and

23

advertising agencies rely for consumer behavior insight and Internet usage data. comScore maintains a proprietary database of more than 2 million consumers who have given

24

comScore permission to monitor their browsing and transaction behavior, including online and offline purchasing. This data includes and fuses first-party (website data), second-party

25

(data shared by websites for marketing purposes) and third-party data, tied to offline purchasing behavior.

26

6 The Nielsen Corporation measures and monitors television and radio audiences and media delivery. The company measures programming and advertising across all distribution

27

points, including, among others, network television and radio. Nielsen’s ratings are used by advertisers and networks to shape the buying and selling of advertising. See generally

28

The Nielsen Company (US), LLC, https://www.nielsen.com (last visited Aug. 27, 2020). 7 Ad Age’s Hispanic Fact Pack offers statistics on U.S. Hispanic marketing, media, and

demographics, among other information.

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1 Notice Plan. Specifically, this research identifies which media channels are favored by the

2 target audience (i.e., the potential Class Members) by considering browsing behaviors on

3 the Internet, social media channels that are used, which magazines Class Members are

4 reading, and which television programs people are watching.

5

13. While traditional media8 is typically purchased based on both demographic

6 (i.e., age, gender, ethnicity, income, education) and psychographic (i.e., lifestyle, product

7 and brand preference, media usage, and media definition) characteristics, online media,

8 including Internet and mobile, may be purchased through more granular target audience

9 characteristics. As a result, Heffler will apply the most sophisticated and modern media

10 relevant approach to audience targeting.

11

14. Based on these tools, Heffler is able to measure and report to the Court the

12 percentage of the target Class that will be reached by the Notice Program and how many

13 times the target audience will have the opportunity to see the message. In advertising, this

14 is commonly referred to as a “Reach and Frequency” analysis, where “Reach” refers to the

15 estimated percentage of the unduplicated audience exposed to the campaign, and

16 “Frequency” refers to how many times, on average, the target audience had the opportunity

17 to see the message. The calculations are used by advertising and communications firms

18 worldwide and have become a critical element to help provide the basis for determining

19 adequacy of notice in class actions.

20

NOTICE PROGRAM SUMMARY

21

15. The objective of the Notice Program is to successfully reach (through

22 objective quantifiable validation measures described in Paragraph 13 above) and inform

23 the potential Class Members of their rights and obligations. The notice procedures being

24 implemented include direct, written notice (in the form of the Long Form Notice approved

25 by the Court) to all known potential Class Members via first class physical mail at their

26 last known addresses.

27

28 8 Traditional media is a reference to pre-Internet media: magazine, newspaper, terrestrial radio, and broadcast and cable television.

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1

16. As written notice may not reach all potential Class Members, the Notice

2 Program will supplement direct notice using various forms of media targeted to potential

3 Class Members. The supplemental Notice Program will be tiered to weight the media

4 where the greatest number of potential Class Members are found based on statistical and

5 demographic research studies and available data.

6

17. Tier 1 includes the United States and Mexico. Mexico alone represents the

7 country of origin for over 42% of undocumented immigrants to the United States. The

8 Supplemental Notice Plan being implemented in the United States and Mexico utilizes the

9 following paid media channels to reach unknown potential Class Members for which direct

10 notice may not be available:

11

Tier 1 – United States

12

Direct Mail

13

Television

Cable

Telemundo :60-second

14

Television

commercials

15

Spanish

Radio

National

Univision :60-second

Spanish

16

Radio

commercials

17

Local Markets Local

:60-second

Spanish

18

Terrestrial commercials
19

Online

Display ,

Pulpo

Banner and

Spanish

20

Search, Video

Video Ads

21

-YouTube
22

Social Media Facebook and
23

Newsfeed Ads Spanish

Instagram
24

Press Release
25

USA 1

English/Spanish

26 Response Hubs Informational

27

Website

28

Toll-free line

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1

Tier 1 – Mexico

2
Direct Mail
3

Television
4

Network

Televisa :60-second

Television

commercials

5

Online

Display , Search Pulpo

Banner and

6

Video Ads
7

Social Media Facebook and
8

Newsfeed Ads

Instagram
9

Press Release Latin America
10

Network
11

Response Hubs Informational
12

Website
13

Toll-free line
14

15

Tier 2 – All Other Countries

Spanish Spanish Spanish Spanish

16

17

Direct Mail

18 Press Release Latin America

English

19

Network

Spanish

20

India

21
U.S. TARGET AUDIENCE DEMOGRAPHICS AND POPULATION
22
CONCENTRATIONS
23
18. Our assumptions are derived from a number of research reports and data
24
sources, including the Department of Homeland Security, Office of Immigration Statistics:
25
///
26
///
27

28

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1 Population Estimates: Illegal Alien Population Residing in The United States,9 U.S.

2 Immigration and Customs Enforcement Fiscal Year 2019 Enforcement and Removal

3 Operations Report,10 and MigrationPolicy.org: Unauthorized Immigrant Population

4 Profiles.11 Our assumptions are also guided by the over 1 million rows of data produced

5 by CoreCivic detailing the last known address, country of origin and demographic

6 information for the potential Class Members. The data was then sorted to determine the

7 total migrant counts for each country. Based on this analysis, Mexico, Guatemala,

8 Honduras and El Salvador make up the country of origin for over 80% of the potential

9 Class Members. India, Cuba, Ecuador and Nicaragua increase that count by another 7%.

10

19. The data also reveals key demographic information, such as race and ethnic

11 considerations. Over 94% of the potential Class Members are Hispanic (91% identify their

12 ethnicity as Central American and Latino). Of the total detainee population, 76% are male

13 and 24% are female. While the age categories range from 18-54 years of age, 83% of the

14 potential Class Members are between 25-54 years of age.

15

20. Further, research reports and data sources indicate that 84% of undocumented

16 immigrants residing in the United States are age 18-54. Of this population, 53% are male

17 and 47% are female.12 Consistent with this data, the demographic data produced by

18 CoreCivic indicates that 85.3% of the potential Class Members self-report as Hispanic.

19 MigrationPolicy.Org reports that 41% of the undocumented immigrant population is found

20

21

22 9 Bryan Baker, Population Estimates: Illegal Alien Population Residing in the United

States: January 2015, United States Department of Homeland Security (December 2018), 23 https:// www.dhs.gov/sites/default/files/publications/18 1214 PLCY pops-est-report.pdf

24 10 U.S. Immigration and Customs Enforcement Fiscal Year 2019 Enforcement and Removal

25

Operations Report, U.S. Immigrations and Customs Enforcement, at 9, fig. 15 (2019), https://www.ice.gov/sites/default/files/documents/Document/2019/

26 eroReportFY2019.pdf.

27

11 Unauthorized Immigrant Population Profiles, Migration Policy Institute, https://www.migrationpolicy.org/programs/us-immigration-policy-program-data-

28 hub/unauthorized-immigrant-population-profiles (last visited Aug. 27, 2020).

12 Baker, supra note 9.

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1 in California and Texas.13

2

U.S. MEDIA CHOICE RATIONALE

3

21. The media channel selection is based on syndicated research data from MRI.

4 This data provides insight into media consumption habits of various populations. For

5 individuals who identify as Hispanic with a birthplace outside of the United States, the data

6 shows strong broadcast (television and radio) use along with heavy use of online and social

7 media:

8 x Television: 90.4% have watched TV in the past 7 days. x Radio: 84% have listened to radio in the past 7 days.

9 x Digital Media: Search, Display & Social

10

o 72.3% have used the Internet in the past 30 days o 70.8% have used their smartphone to access the Internet in the past 30 days

11

o 67.3% have used social media

12

DIRECT NOTICE

13

22. Heffler will perform an extensive analysis and cleansing of the Class Member

14 data to identify records with possible mailing addresses in the United States and other

15 countries. At this time, Heffler is unable to determine the number of records with

16 potentially valid mailing addresses.

17

23. Once the records with mailing addresses are identified, Heffler will run the

18 United States addresses through the United States Postal Service’s (USPS) National

19 Change of Address database to obtain current mailing addresses for Class Members who

20 may have filed a change of address with the USPS in the last four years. Heffler will then

21 integrate the updated addresses within the Class Member data set for mailing. Heffler will

22 then send, by First-Class mail, the Long Form Notice approved by the Court to the United

23 States addresses and to the addresses in countries outside of the United States. The final

24 results of this analysis will be reported to the Court upon completion of the Notice Program.

25

NETWORK BROADCAST TELEVISION

26

24. The Notice Plan contemplates :60-second commercials that will air on

27

28

13 Unauthorized Immigrant Population Profiles, supra note 11.

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1

2

3

4

5

6

7

8

9

10

11

12

13

14

15

16

Graphic Source URL: Unauthorized Immigrant Populations by Country and Region,

17

Top States and Counties of Residence, 2012-16, Migration Policy Institute,

https://www.migrationpolicy.org/programs/data-hub/charts/unauthorized-immigrant-

18

populations-country-and-region-top-state-and-county (last visited Aug. 27, 2020).

19

SOCIAL MEDIA: FACEBOOK AND INSTAGRAM

20

26. Heffler will target Hispanic/Latino adults age 18 to 54 in Spanish on the social

21 media networks Facebook and Instagram with weighted delivery to States with higher

22 populations of undocumented immigrants.

23

INTERNET SEARCH TERMS

24

27. This Notice Plan will employ Google keyword search terms. When users

25 search for target phrases and keywords identified for this Notice Plan on Google, ads will

26 appear on the search result pages. Representative key terms will include, but are not limited

27 to, ICE class action, ICE litigation, ICE detention facilities, immigration enforcement,

28 CoreCivic class action, CoreCivic litigation, CoreCivic detention facilities, and

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1 the media consumption habits in Mexico are similar to the United States. As a result,

2 Heffler will apply a similar media strategy. 93% of Mexicans report owning at least one

3 television set,14 and 69% of Mexicans are active social media users, with 99% of these

4 users accessing social media via mobile phones.15

5

MEXICO TELEVISION

6

33. Televisa is the largest media company in the Spanish-speaking world, and an

7 important cable operator in Mexico, where the majority of households have at least one

8 television set. The Notice Plan contemplates 15-25 TV spots using :60-second Spanish

9 language commercials. The TV schedule will air over a three (3) week time period using a 10 variety of dayparts.16

11

MEXICO ONLINE, SOCIAL MEDIA AND SEARCH NOTICE

12

34. Within Mexico, Heffler will adopt the same digital media strategy as in the

13 United States with weighted delivery to Mexican states with higher populations of

14 undocumented immigrants to the United States. Ads will appear across multiple devices,

15 including desktop, tablet, and mobile devices using display, social media through Facebook

16 and Instagram, and on Google Search. The charts below summarize the Mexican state of

17 origin for undocumented immigrants from Mexico in the United States:

18 ///

19 ///

20 ///

21 ///

22

23
14 Television, Media Landscapes, https://medialandscapes.org/country/mexico/media/ 24 television (last visited Aug. 27, 2020).
15 Source: Hootsuite Digital 2020 Global Digital Yearbook 25 16 A “daypart” is a term traditionally used when buying television but is also used for radio.

26 It is a block of time that divides the day into segments for purchase, scheduling, and delivery. The dayparting method is often used to tailor content to specific audiences
27 throughout the day, e.g., early morning is 5 a.m. to 9 a.m.; daytime is 9 a.m. to 4 p.m.; early

28 fringe is 4 p.m. to 6 p.m.; evening news is 6 p.m. to 7 p.m.; prime time is 8 p.m. to 10 p.m. and late is 11:30 p.m. to 2 a.m.

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1 Members. The notice procedures are broad and multi-faceted and are designed to reach an

2 estimated 70 percent of Hispanic adults eighteen (18) to fifty-four (54) years with an

3 average frequency of over two (2) times in the United States. The Notice Plan is estimated

4 to also reach 70 percent of men twenty-five (25) to fifty-four (54) years with an average

5 frequency of two (2) times in Mexico. The notice plan as described is reasonably calculated

6 to provide notice that is consistent with best practicable court approved notice programs

7 in similar matters which are consistent with the Federal Judicial Center’s guidelines

8 concerning appropriate reach.

9

I declare under penalty of perjury, under the laws of the United States of America,

10 that the foregoing is true and correct. Executed on August 28, 2020 in Tigard, Oregon.

11

12

13

Jeanne C. Finegan

14

15

16

17

18

19

20

21

22

23

24

25

26

27

28

-15-

Case No. 17-CV-01112-JLS-NLS

 
 UNITED STATES DISTRICT COURT CENTRAL DISTRICT OF CALIFORNIA (Western Division - Los Angeles)
CIVIL DOCKET FOR CASE #: 2:12-cv-09012-AB-FFM

Duncan Roy et al v. County of Los Angeles et al Assigned to: Judge Andre Birotte Jr Referred to: Magistrate Judge Frederick F. Mumm Related Cases: 2:13-cv-04416-AB-FFM
5:17-cv-01430-AB-FFM Case in other court: Ninth CCA, 20-55175 Cause: 42:1983 Civil Rights Act

Date Filed: 10/19/2012 Jury Demand: Both Nature of Suit: 440 Civil Rights: Other Jurisdiction: Federal Question

Plaintiff
Duncan Roy on behalf of himself and others similarly situated TERMINATED: 01/25/2016

represented by Mohammad K Tajsar ACLU Foundation of Southern California 1313 West 8th Street Los Angeles, CA 90017 213-977-5200 Fax: 213-977-5297 Email: mtajsar@aclusocal.org LEAD ATTORNEY ATTORNEY TO BE NOTICED

Zoe Nicole McKinney ACLU Foundation of Southern California 1313 West 8th Street Los Angeles, CA 90017 213-977-5244 Fax: 213-417-2211 Email: zmckinney@aclusocal.org LEAD ATTORNEY ATTORNEY TO BE NOTICED

Ahilan T Arulanantham ACLU Foundation of Southern California 1313 West Eighth Street Los Angeles, CA 90017 213-977-5200 Fax: 213-977-5299 Email: aarulanantham@aclu-sc.org TERMINATED: 02/21/2019

Barrett S Litt McLane Bednarski and Litt LLP 975 East Green Street Pasadena, CA 91106 626-844-7660 Fax: 626-844-7670 Email: blitt@mbllegal.com ATTORNEY TO BE NOTICED
Cecillia D Wang ACLU Foundation Immigrants Rights Project 39 Drumm Street San Francisco, CA 94111 415-343-0775 Email: cwang@aclu.org TERMINATED: 02/21/2019
Chris Newman National Day Laborer Organizing Network 675 South Park View Suite B Los Angeles, CA 90057 213-380-2785 Fax: 213-380-2787 Email: newman@ndlon.org TERMINATED: 01/25/2016
Cody H Wofsy ACLU Immigrants Rights Project 39 Drumm Street San Francisco, CA 94111 415-343-0785 Fax: 415-395-0950 Email: cwofsy@aclu.org TERMINATED: 02/21/2019
Jennifer L Pasquarella ACLU Foundation of Southern California 1313 West Eight Street Los Angeles, CA 90017 213-977-9500 Fax: 213-977-5297 Email: jpasquarella@aclusc.org (Inactive)

ATTORNEY TO BE NOTICED
Jessica Karp Bansal ACLU Foundation of Southern California 1313 West 8th Street Los Angeles, CA 90017 213-977-9500 Fax: 213-977-5297 Email: jbansal@aclusocal.org ATTORNEY TO BE NOTICED
Jordan Wells ACLU Foundation of Southern California 1313 West Eighth Street Suite 200 Los Angeles, CA 90017 213-977-9500 x 167 Fax: 213-977-5297 Email: jwells@aclusocal.org PRO HAC VICE ATTORNEY TO BE NOTICED
Katherine K Desormeau ACLU Immigrants Rights Project 39 Drumm Street San Francisco, CA 94111 415-343-0778 Fax: 415-395-0950 Email: kdesormeau@aclu.org TERMINATED: 12/09/2015 ATTORNEY TO BE NOTICED
Katherine M Traverso Email: ktraverso@aclusocal.org TERMINATED: 01/25/2016
Lindsay Battles Kaye McLane Bednarski and Litt LLP 975 East Green Street Pasadena, CA 91106 626-844-7660 Fax: 626-844-7670 Email: lbattles@kmbllaw.com ATTORNEY TO BE NOTICED

Omar C Jadwat ACLU Foundation Immigrants Rights Project 125 Broad Street 18th Floor New York, NY 10004 212-549-2660 Fax: 212-549-2654 Email: ojadwat@aclu.org TERMINATED: 01/25/2016 PRO HAC VICE
Peter Bibring ACLU Foundation of Southern California 1313 West Eight Street Los Angeles, CA 90017 213-977-9500 Fax: 213-977-5297 Email: pbibring@aclu-sc.org TERMINATED: 10/08/2018
Peter J Eliasberg ACLU of Southern California 1313 West 8th Street Suite 200 Los Angeles, CA 90017 213-977-9500 Fax: 213-977-5299 Email: peliasberg@aclusocal.org TERMINATED: 01/25/2016
Rodkangyil Orion Danjuma ACLU Foundation - Immigration Rights' Project 39 Drumm Street San Francisco, CA 94111 415-343-0770 Fax: 415-395-0759 Email: odanjuma@aclu.org TERMINATED: 10/24/2014 ATTORNEY TO BE NOTICED
Ruben Loyo National Immigrant Justice Center 208 South LaSalle Street Suite 1300 Chicago, IL 60604

Plaintiff
Annika Alliksoo on behalf of herself and others similarly situated TERMINATED: 01/26/2017

312-660-1312 Fax: 312-660-1505 Email: rloyo@heartlandalliance.org PRO HAC VICE ATTORNEY TO BE NOTICED
Sylvia Torres-Guillen ACLU of Southern California 1313 West Eighth Street Los Angeles, CA 90017 213-977-5220 Fax: 213-977-5297 Email: STorresGuillen@aclusocal.org ATTORNEY TO BE NOTICED
represented by Ahilan T Arulanantham (See above for address) TERMINATED: 02/21/2019
Barrett S Litt (See above for address) ATTORNEY TO BE NOTICED
Cecillia D Wang (See above for address) TERMINATED: 02/21/2019
Chris Newman (See above for address) ATTORNEY TO BE NOTICED
Cody H Wofsy (See above for address) TERMINATED: 02/21/2019
Jennifer L Pasquarella (See above for address) ATTORNEY TO BE NOTICED
Jessica Karp Bansal (See above for address) ATTORNEY TO BE NOTICED
Jordan Wells

(See above for address) PRO HAC VICE ATTORNEY TO BE NOTICED
Katherine K Desormeau (See above for address) TERMINATED: 12/09/2015
Katherine M Traverso (See above for address) TERMINATED: 01/25/2016
Lindsay Battles (See above for address) ATTORNEY TO BE NOTICED
Mark M Fleming National Immigrant Justice Center 208 South LaSalle Street Suite 1300 Chicago, IL 60604 312-660-1628 Fax: 312-660-1505 Email: mfleming@heartlandalliance.org PRO HAC VICE ATTORNEY TO BE NOTICED
Mohammad K Tajsar (See above for address) ATTORNEY TO BE NOTICED
Omar C Jadwat (See above for address) PRO HAC VICE ATTORNEY TO BE NOTICED
Peter Bibring (See above for address) TERMINATED: 10/08/2018
Peter J Eliasberg (See above for address) TERMINATED: 02/21/2019
Rodkangyil Orion Danjuma (See above for address)

Plaintiff
Clemente De La Cerda on behalf of himself and others similarly situated

TERMINATED: 10/24/2014
Ruben Loyo (See above for address) PRO HAC VICE ATTORNEY TO BE NOTICED
Spencer E W Amdur ACLU Immigrants' Rights Project 125 Broad Street 18th Floor New York, NY 10004 212-549-2572 Fax: 212-549-2654 Email: samdur@aclu.org TERMINATED: 02/21/2019 PRO HAC VICE
Sylvia Torres-Guillen (See above for address) ATTORNEY TO BE NOTICED
Zoe Nicole McKinney (See above for address) ATTORNEY TO BE NOTICED
represented by Mohammad K Tajsar (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Ahilan T Arulanantham (See above for address) TERMINATED: 02/21/2019
Barrett S Litt (See above for address) ATTORNEY TO BE NOTICED
Cecillia D Wang (See above for address) TERMINATED: 02/21/2019
Chris Newman (See above for address) ATTORNEY TO BE NOTICED

Cody H Wofsy (See above for address) TERMINATED: 02/21/2019
Jennifer L Pasquarella (See above for address) ATTORNEY TO BE NOTICED
Jessica Karp Bansal (See above for address) ATTORNEY TO BE NOTICED
Jordan Wells (See above for address) PRO HAC VICE ATTORNEY TO BE NOTICED
Katherine K Desormeau (See above for address) TERMINATED: 12/09/2015 ATTORNEY TO BE NOTICED
Katherine M Traverso (See above for address) TERMINATED: 01/25/2016
Lindsay Battles (See above for address) ATTORNEY TO BE NOTICED
Mark M Fleming (See above for address) PRO HAC VICE ATTORNEY TO BE NOTICED
Omar C Jadwat (See above for address) PRO HAC VICE ATTORNEY TO BE NOTICED
Peter Bibring (See above for address) TERMINATED: 10/08/2018
Peter J Eliasberg

Plaintiff
Christian Michel Varela on behalf of himself and others similarly situated TERMINATED: 12/07/2015

(See above for address) TERMINATED: 02/21/2019
Rodkangyil Orion Danjuma (See above for address) TERMINATED: 10/24/2014 ATTORNEY TO BE NOTICED
Ruben Loyo (See above for address) PRO HAC VICE ATTORNEY TO BE NOTICED
Spencer E W Amdur (See above for address) TERMINATED: 02/21/2019 PRO HAC VICE
Sylvia Torres-Guillen (See above for address) ATTORNEY TO BE NOTICED
Zoe Nicole McKinney (See above for address) ATTORNEY TO BE NOTICED
represented by Ahilan T Arulanantham (See above for address) TERMINATED: 02/21/2019
Barrett S Litt (See above for address) ATTORNEY TO BE NOTICED
Cecillia D Wang (See above for address) TERMINATED: 02/21/2019
Chris Newman (See above for address) ATTORNEY TO BE NOTICED
Cody H Wofsy (See above for address) TERMINATED: 02/21/2019

Jennifer L Pasquarella (See above for address) ATTORNEY TO BE NOTICED
Jessica Karp Bansal (See above for address) ATTORNEY TO BE NOTICED
Katherine K Desormeau (See above for address) TERMINATED: 12/09/2015 ATTORNEY TO BE NOTICED
Katherine M Traverso (See above for address) TERMINATED: 01/25/2016
Lindsay Battles (See above for address) ATTORNEY TO BE NOTICED
Mohammad K Tajsar (See above for address) ATTORNEY TO BE NOTICED
Omar C Jadwat (See above for address) PRO HAC VICE ATTORNEY TO BE NOTICED
Peter Bibring (See above for address) TERMINATED: 10/08/2018
Peter J Eliasberg (See above for address) TERMINATED: 02/21/2019
Rodkangyil Orion Danjuma (See above for address) TERMINATED: 10/24/2014 ATTORNEY TO BE NOTICED
Ruben Loyo (See above for address)

V. Defendant County of Los Angeles

PRO HAC VICE ATTORNEY TO BE NOTICED
Spencer E W Amdur (See above for address) TERMINATED: 02/21/2019 PRO HAC VICE
Sylvia Torres-Guillen (See above for address) ATTORNEY TO BE NOTICED
Zoe Nicole McKinney (See above for address) ATTORNEY TO BE NOTICED
represented by Andrew I Baum Glaser Weil Fink Howard Avchen and Shapiro LLP 10250 Constellation Boulevard 19th Floor Los Angeles, CA 90067 310-553-3000 Fax: 310-556-2920 Email: abaum@glaserweil.com ATTORNEY TO BE NOTICED
Jin S Choi Lawrence Beach Allen and Choi PC 100 West Broadway Suite 1200 Glendale, CA 91210-1219 818-545-1925 Fax: 818-545-1937 Email: jchoi@lbaclaw.com ATTORNEY TO BE NOTICED
Oscar Andres Bustos Lawrence Beach Allen & Choi, PC 100 W. Broadway Suite 1200 Glendale, CA 91210 818-545-1925 Email: obustos@lbaclaw.com

Defendant Leroy D Baca of Los Angeles County, in his official capacity
Defendant Alain Martinez-Perez on behalf of himself and others similarly situated

ATTORNEY TO BE NOTICED
Paul B Beach Lawrence Beach Allen and Choi PC 100 West Broadway Suite 1200 Glendale, CA 91210-1219 818-545-1925 Fax: 818-545-1937 Email: pbeach@lbaclaw.com ATTORNEY TO BE NOTICED
Justin W Clark Lawrence Beach Allen and Choi PC 100 West Broadway Suite 1200 Glendale, CA 91210-1219 818-545-1925 Fax: 818-545-1937 Email: jclark@lbaclaw.com ATTORNEY TO BE NOTICED
represented by Andrew I Baum (See above for address) ATTORNEY TO BE NOTICED
Jin S Choi (See above for address) ATTORNEY TO BE NOTICED
Paul B Beach (See above for address) ATTORNEY TO BE NOTICED
Justin W Clark (See above for address) ATTORNEY TO BE NOTICED
represented by Ahilan T Arulanantham (See above for address) TERMINATED: 02/21/2019
Barrett S Litt (See above for address) ATTORNEY TO BE NOTICED

Amicus Law Professors

Cecillia D Wang (See above for address) TERMINATED: 02/21/2019
Chris Newman (See above for address) ATTORNEY TO BE NOTICED
Jennifer L Pasquarella (See above for address) TERMINATED: 10/19/2012 ATTORNEY TO BE NOTICED
Jessica Karp Bansal (See above for address) ATTORNEY TO BE NOTICED
Katherine K Desormeau (See above for address) TERMINATED: 12/09/2015 ATTORNEY TO BE NOTICED
Lindsay Battles (See above for address) ATTORNEY TO BE NOTICED
Omar C Jadwat (See above for address) PRO HAC VICE ATTORNEY TO BE NOTICED
Peter J Eliasberg (See above for address) ATTORNEY TO BE NOTICED
represented by Anne Lai UC Irvine Scool of Law 401 East Peltason Drive Suite 3500 Irvine, CA 92697-8000 949-824-9894 Fax: 949-824-8926 Email: alai@law.uci.edu LEAD ATTORNEY ATTORNEY TO BE NOTICED

V. Objector Department of Homeland Security (DHS)

represented by Jacob Max Weintraub US Department of Justice Office of Immigration Litigation P O Box 878 Ben Franklin Station Washington, DC 20044 202-305-7551 Fax: 202-305-7000 Email: jacob.weintraub@usdoj.gov LEAD ATTORNEY ATTORNEY TO BE NOTICED
Erez Reuveni US Department of Justice Office of Immigration Litigation Civil Division Ben Franklin Station PO Box 868 Washington, DC 20044 202-307-4293 Fax: 202-305-7000 Email: erez.r.reuveni@usdoj.gov ATTORNEY TO BE NOTICED
John JW Inkeles US Department of Justice Civil Division - Office of Immigration Litigation 450 5th Street NW Washington, DC 20001 202-532-4309 Fax: 202-305-1890 Email: john.inkeles@usdoj.gov ATTORNEY TO BE NOTICED

Date Filed 10/19/2012

# Docket Text
1 COMPLAINT against Defendants Leroy D Baca, County of Los Angeles. Case assigned to Judge R. Gary Klausner for all further proceedings. Discovery referred to Magistrate Judge Frederick F. Mumm.(Filing fee $ 350:PAID), filed by plaintiffs Duncan Roy, Annika Alliksoo, Clemente De La Cerda, Christian Michel Varela.(ghap) (ds). (Entered: 10/23/2012)

10/19/2012 10/19/2012 10/19/2012 10/23/2012
10/24/2012 10/25/2012 10/25/2012 10/30/2012 02/08/2013
02/08/2013

21 DAY Summons Issued re Complaint - (Discovery) 1 as to Defendants Leroy D Baca, County of Los Angeles. (ghap) (Entered: 10/23/2012)
2 NOTICE of Interested Parties filed by Plaintiffs Annika Alliksoo, Clemente De La Cerda, Duncan Roy, Christian Michel Varela. (ghap) (ds). (Entered: 10/23/2012)
3 NOTICE of Related Case(s) filed by plaintiffs Annika Alliksoo, Clemente De La Cerda, Duncan Roy, Christian Michel Varela. Related Case(s): none indicated. (ghap) (ds). (Entered: 10/23/2012)
4 NOTICE OF FILING FEE DUE on Pro Hac Vice Application mailed to Omar C Jadwat for Plaintiffs Annika Alliksoo, Clemente De La Cerda, Duncan Roy, Christian Michel Varela. Your Pro Hac Vice application has not been received by the court. Please return you completed Application of Non-Resident Attorney to Appear in a Specific Case, form G-64, or a copy of the Notice of Electronic Filing of your application and the $325.00 fee and this notice immediately. Out-of-state federal government attorneys who are not employed by the U.S. Department of Justice are required to file a Pro Hac Vice application; no filing fee is required. (ghap) (Entered: 10/23/2012)
5 DEMAND for Jury Trial filed by Plaintiff Annika Alliksoo, Clemente De La Cerda, Duncan Roy, Christian Michel Varela.. (Bibring, Peter) (Entered: 10/24/2012)
6 STANDING ORDER by Judge R. Gary Klausner. (rne) (Entered: 10/25/2012)
7 APPLICATION for attorney Omar C. Jadwat to Appear Pro Hac Vice (PHV FEE NOT PAID.) filed by Plaintiff Annika Alliksoo, Clemente De La Cerda, Duncan Roy, Christian Michel Varela. (Attachments: # 1 Proposed Order)(Eliasberg, Peter) (Entered: 10/25/2012)
8 ORDER by Judge R. Gary Klausner: granting 7 Application to Appear Pro Hac Vice by Attorney Omar C. Jadwat on behalf of Plaintiffs, designating Peter Eliasberg as local counsel. (lt) (Entered: 10/30/2012)
9 NOTICE of Change of Attorney Information for attorney Lindsay Brooke Battles counsel for Plaintiffs Annika Alliksoo, Clemente De La Cerda, Duncan Roy, Christian Michel Varela. Changing firm name to Kaye, McLane, Bednarski & Litt. Changing e-mail to lbattles@kmbllaw.com. Filed by Plaintiff Duncan Roy (Battles, Lindsay) (Entered: 02/08/2013)
10 NOTICE of Change of Attorney Information for attorney Barrett S Litt counsel for Plaintiffs Annika Alliksoo, Clemente De La Cerda, Duncan Roy, Christian Michel Varela. Changing firm name to Kaye, McLane, Bednarski & Litt. Changing e-mail to blitt@kmbllaw.com. Filed by Plaintiffs Duncan Roy (Litt, Barrett) (Entered: 02/08/2013)

02/15/2013 02/20/2013 02/27/2013 02/28/2013 02/28/2013 04/22/2013 04/22/2013 05/07/2013
05/20/2013

11 Joint STIPULATION for Leave to Extend Time to Serve Complaint and Summons filed by plaintiff Annika Alliksoo, Clemente De La Cerda, Duncan Roy, Christian Michel Varela. (Attachments: # 1 Proposed Order)(Eliasberg, Peter) (Entered: 02/15/2013)
12 DENIED BY ORDER OF THE COURT by Judge R. Gary Klausner, re Stipulation for Leave to serve the summons and complaint 11 (bp) (Entered: 02/20/2013)
13 NOTICE of Change of Attorney Information for attorney Barrett S Litt counsel for Plaintiffs Annika Alliksoo, Clemente De La Cerda, Duncan Roy, Christian Michel Varela. Changing firm name to Kaye, McLane, Bednarski & Litt. Changing e-mail to blitt@kmbllaw.com. Filed by Plaintiffs Duncan Roy (Litt, Barrett) (Entered: 02/27/2013)
14 WAIVER OF SERVICE Returned Executed filed by Plaintiff Duncan Roy, Annika Alliksoo, Clemente De La Cerda, Christian Michel Varela. upon Leroy D Baca waiver sent by Plaintiff on 2/22/2013, answer due 4/23/2013. Waiver of Service signed by Paul Beach. (Eliasberg, Peter) (Entered: 02/28/2013)
15 WAIVER OF SERVICE Returned Executed filed by Plaintiff Duncan Roy, Annika Alliksoo, Clemente De La Cerda, Christian Michel Varela. upon County of Los Angeles waiver sent by Plaintiff on 2/22/2013, answer due 4/23/2013. Waiver of Service signed by Paul Beach. (Eliasberg, Peter) (Entered: 02/28/2013)
16 STIPULATION Extending Time to Answer the complaint as to Leroy D Baca answer now due 5/23/2013; County of Los Angeles answer now due 5/23/2013, filed by Defendants Leroy D Baca; County of Los Angeles.(Clark, Justin) (Entered: 04/22/2013)
17 NOTICE of Change of Attorney Information for attorney Paul B Beach counsel for Defendants Leroy D Baca, County of Los Angeles. Adding Paul B Beach as attorney as counsel of record for Defendants County of Los Angeles and Sheriff Leroy D. Baca for the reason indicated in the G06 Notice. Filed by Defendants County of Los Angeles and Sheriff Leroy D. Baca (Beach, Paul) (Entered: 04/22/2013)
18 ORDER OF THE CHIEF JUDGE (#13-089) approved by Chief Judge George H. King. Pursuant to the recommended procedure adopted by the Court for the CREATION OF CALENDAR of Judge Beverly Reid O'Connell, this case is transferred from Judge R. Gary Klausner to the calendar of Judge Beverly Reid O'Connell for all further proceedings. The case number will now reflect the initials of the transferee Judge CV1209012 BRO (FFMx). (at) (Entered: 05/08/2013)
19 STIPULATION for Extension of Time to File RESPONSE TO INITIAL COMPLAINT AND DEADLINE FOR MOTION FOR CLASS CERTIFICATION filed by DEFENDANTS Leroy D Baca, County of

05/21/2013 06/21/2013 06/26/2013 07/09/2013
08/21/2013 08/23/2013 08/28/2013 11/06/2013

Los Angeles. (Attachments: # 1 Proposed Order)(Clark, Justin) (Entered: 05/20/2013)
20 ORDER APPROVING Stipulation to Extend Time to Respond to Initial Complaint and Deadline for Motion for Class Certification 19 by Judge Beverly Reid O'Connell that Defendants Leroy D Baca and County of Los Angeles shall have until 6/24/2013 to respond to the initial Complaint. Plaintiffs shall have until 9/12/2013 to file a motion for class certification. (jp) (Entered: 05/21/2013)
21 STIPULATION for Extension of Time to File RESPONSE TO INITIAL COMPLAINT AND DEADLINE FOR MOTION FOR CLASS CERTIFICATION filed by DEFENDANTS Leroy D Baca, County of Los Angeles. (Attachments: # 1 Proposed Order)(Clark, Justin) (Entered: 06/21/2013)
22 ORDER by Judge Beverly Reid O'Connell. IT IS HEREBY ORDERED that: Defendants County of Los Angeles and Sheriff Leroy Baca shall have until August 26, 2013 to respond to the initial Complaint. Plaintiffs shall have until December 2, 2013 to file a motion for class certification. (rfi) (Entered: 06/26/2013)
23 TEXT ONLY ENTRY (IN CHAMBERS): Judge Beverly Reid O'Connell is participating in a pilot project regarding the submission of SEALED DOCUMENTS. Effective July 8, 2013, all proposed sealed documents must be submitted via e-mail to the Judge's Chambers email at BRO_chambers@cacd.uscourts.gov. Please refer to the judge's procedures and schedules for detailed instructions for submission of sealed documents.THERE IS NO PDF DOCUMENT ASSOCIATED WITH THIS ENTRY.(dv) TEXT ONLY ENTRY (Entered: 07/09/2013)
24 NOTICE of Appearance filed by attorney Rodkangyil Orion Danjuma on behalf of Plaintiffs Annika Alliksoo, Clemente De La Cerda, Duncan Roy, Christian Michel Varela (Danjuma, Rodkangyil) (Entered: 08/21/2013)
25 STIPULATION to Continue TIME TO RESPOND TO INITIAL COMPLAINT AND DEADLINE FOR MOTION FOR CLASS CERTIFICATION filed by DEFENDANTS Leroy D Baca, County of Los Angeles. (Attachments: # 1 Proposed Order)(Clark, Justin) (Entered: 08/23/2013)
26 ORDER by Judge Beverly Reid O'Connell, re Stipulation to Continue 25 IT IS HEREBY ORDERED that: Defendants County of Los Angeles and Sheriff Leroy Baca shall have until November 9, 2013 to respond to the initial Complaint. Plaintiffs shall have until February 15, 2014 to file a motion for class certification. (rfi) (Entered: 08/28/2013)
27 STIPULATION for Order TO EXTEND TIME TO RESPOND TO INITIAL COMPLAINT AND DEADLINE FOR MOTION FOR CLASS

11/13/2013
12/02/2013 02/06/2014 02/06/2014 02/07/2014 03/14/2014 03/18/2014 05/15/2014

CERTIFICATION filed by DEFENDANTS Leroy D Baca, County of Los Angeles. (Attachments: # 1 Proposed Order)(Clark, Justin) (Entered: 11/06/2013)
28 ORDER by Judge Beverly Reid O'Connell, re Stipulation for Order 27 IT IS HEREBY ORDERED that: Defendants County of Los Angeles and Sheriff Leroy Baca shall have until February 6, 2014 to respond to the initial Complaint. Plaintiffs shall have until May 16, 2014 to file a motion for class certification. The parties are to file a Status Report setting forth the date of the Mediation no later than December 2, 2013. Additionally, the parties are to file a Status Report within 14 days of the completion of the mediation. IT IS SO ORDERED. (rfi) (Entered: 11/13/2013)
29 STATUS REPORT REGARDING SETTLEMENT EFFORTS PURSUANT TO THIS COURT'S NOVEMBER 13, 2013 ORDER filed by Defendants Leroy D Baca, County of Los Angeles. (Clark, Justin) (Entered: 12/02/2013)
30 ANSWER to Complaint - (Discovery), 1 with JURY DEMAND filed by DEFENDANTS Leroy D Baca, County of Los Angeles.(Clark, Justin) (Entered: 02/06/2014)
31 CERTIFICATE of Interested Parties filed by DEFENDANTS Leroy D Baca, County of Los Angeles, identifying Duncan Roy, Alain MartinezPerez, Annika Alliksoo, Clemente De La Cerda, Christian Michel Varela, County of Los Angeles, Sheriff Leroy D. Baca. (Clark, Justin) (Entered: 02/06/2014)
32 ORDER SETTING RULE 26F SCHEDULING CONFERENCE by Judge Beverly Reid O'Connell. Scheduling Conference set for 3/31/2014 at 01:30 PM before Judge Beverly Reid O'Connell. (cb) (Entered: 02/07/2014)
33 Joint STIPULATION for Order TO EXTEND SCHEDULING CONFERENCE AND TRIAL AND PRETRIAL DEADLINES filed by plaintiffs Annika Alliksoo, Clemente De La Cerda, Duncan Roy, Christian Michel Varela. (Attachments: # 1 Proposed Order To Extend Scheduling Conference and Trial and Pretrial Deadlines)(Pasquarella, Jennifer) (Entered: 03/14/2014)
34 ORDER by Judge Beverly Reid O'Connell, re Stipulation, 33 IT IS HEREBYORDERED that: The March 31, 2014 scheduling conference and any associateddiscovery or other deadlines, as well as the deadline for Plaintiffsto file a motion for class certification, shall be vacated pending theoutcome of the current mediation efforts. (rfi) (Entered: 03/18/2014)
35 STATUS REPORT REGARDING SETTLEMENT EFFORTS PURSUANT TO THIS COURT'S MARCH 18, 2014 ORDER filed by Defendants Leroy D Baca, County of Los Angeles. (Clark, Justin) (Entered: 05/15/2014)

05/29/2014 06/27/2014 07/07/2014 07/09/2014
07/10/2014 07/11/2014 07/21/2014 07/28/2014
07/28/2014

36 NOTICE by Judge Beverly Reid O'Connell re: Status Report 35 . The parties are ORDERED to file a Joint Status Report no later than July 3, 2014, setting forth the status of this action. THERE IS NO PDF DOCUMENT ASSOCIATED WITH THIS ENTRY. (rfi) TEXT ONLY ENTRY (Entered: 05/29/2014)
37 NOTICE of Change of Attorney Business or Contact Information: for attorney Jessica D Karp counsel for Plaintiffs Annika Alliksoo, Clemente De La Cerda, Duncan Roy, Christian Michel Varela. Filed by Plaintiff Duncan Roy, et al. (Karp, Jessica) (Entered: 06/27/2014)
38 STATUS REPORT REGARDING SETTLEMENT EFFORTS PURSUANT TO THIS COURT'S MAY 29, 2014 ORDER filed by Defendants Leroy D Baca, County of Los Angeles. (Beach, Paul) (Entered: 07/07/2014)
39 SCHEDULING NOTICE by Judge Beverly Reid O'Connell. On the Court's own motion, the Scheduling Conference is reset for 7/21/2014 at 1:30 PM before Judge Beverly Reid O'Connell. The parties are ordered to file a Joint Report by 7/14/2014. See docket entry 32 for details. THERE IS NO PDF DOCUMENT ASSOCIATED WITH THIS ENTRY. (jloz) TEXT ONLY ENTRY (Entered: 07/09/2014)
40 Joint STIPULATION to Continue Scheduling Conference from July 21, 2014 to July 28, 2014 filed by Plaintiffs Annika Alliksoo, Clemente De La Cerda, Duncan Roy, Christian Michel Varela. (Attachments: # 1 Proposed Order)(Litt, Barrett) (Entered: 07/10/2014)
41 ORDER TO CONTINUE SCHEDULING CONFERENCE by Judge Beverly Reid O'Connell. GOOD CAUSE APPEARING as reflected in the stipulation 40 of the parties, the Scheduling Conference currently set for 7/21/2014, at 1:30 PM., is CONTINUED to 7/28/2014 at 1:30 PM. The Rule 26(f) Report is due on 7/21/2014. (jp) (Entered: 07/11/2014)
42 JOINT RULE 26(f) REPORT filed by Plaintiff Duncan Roy. (Attachments: # 1 Exhibit 1 (Notice of Related Cases), # 2 Exhibit 2 (Proposed Schedule))(Battles, Lindsay) (Entered: 07/21/2014)
43 MINUTES OF SCHEDULING CONFERENCE held before Judge Beverly Reid O'Connell. Court conducts Scheduling Conference. Counsel inform the Court that their selection for a settlement procedure pursuant to Private Mediation. The Court orders that any settlement discussions shall be completed no later than September 14, 2015. Court Reporter: Debbie Hino-Spaan. (rfi) (Entered: 07/28/2014)
44 ORDER/REFERRAL to ADR Procedure No 3 by Judge Beverly Reid O'Connell. Case ordered to a private mediator based upon a stipulation of the parties or by the court order. ADR Proceeding to be held no later than 9/14/15. (rfi) (Entered: 07/28/2014)

07/28/2014
07/31/2014 08/01/2014 08/01/2014 08/06/2014 09/23/2014 09/26/2014 10/24/2014

45 CIVIL JURY TRIAL ORDER by Judge Beverly Reid O'Connell: Trial Estimate: 7-10 days. Amended Pleadings due by 10/19/2014. Discovery cut-off is 8/17/2015. Motions in Limine to be filed by 10/5/2015. Last date for hearing on motions is 8/24/2015 at 1:30 pm. Proposed Pretrial Order due by 9/28/2015. Last date to conduct settlement conference is 9/14/2015. Hearing on Motions in Limine set for hearing on 11/2/2015 at 01:30 PM before Judge Beverly Reid O'Connell. Pretrial Conference set for 10/5/2015 at 3:00 PM before Judge Beverly Reid O'Connell. Jury Trial set for 11/10/2015 at 8:30 AM before Judge Beverly Reid O'Connell. (rfi) (Entered: 07/28/2014)
46 EX PARTE APPLICATION to Continue Deadline for Filing Class Certification Motion to 1/26/2015 filed by Plaintiff Annika Alliksoo. (Attachments: # 1 Affidavit of Barrett S. Litt (with Exhibit), # 2 Affidavit of Brian Kriegler (with Exhibit), # 3 Proposed Order)(Battles, Lindsay) (Entered: 07/31/2014)
47 NOTICE of Appearance filed by attorney Jin S Choi on behalf of Defendants Leroy D Baca, County of Los Angeles (Attorney Jin S Choi added to party Leroy D Baca(pty:dft), Attorney Jin S Choi added to party County of Los Angeles(pty:dft))(Choi, Jin) (Entered: 08/01/2014)
48 Opposition re: EX PARTE APPLICATION to Continue Deadline for Filing Class Certification Motion to 1/26/2015 46 filed by Defendants Leroy D Baca, County of Los Angeles. (Beach, Paul) (Entered: 08/01/2014)
49 ORDER by Judge Beverly Reid O'Connell: granting 46 Ex Parte Application to Continue. The class certification motion shall be filed by January 26, 2015. (rfi) (Entered: 08/06/2014)
50 STIPULATION for Protective Order filed by DEFENDANTS Leroy D Baca, County of Los Angeles. (Attachments: # 1 Proposed Order)(Clark, Justin) (Entered: 09/23/2014)
51 NOTE: CHANGES MADE BY THE COURT - ORDER RE STIPULATED PROTECTIVE ORDER REGARDING AJIS AND DIMMS DATA PRODUCED IN RESPONSE TO PLAINTIFFS REQUESTS FOR PRODUCTION, SETS ONE AND TWO 50 by Magistrate Judge Frederick F. Mumm. *See attached Order.* (es) (Entered: 09/26/2014)
52 Notice of Appearance or Withdrawal of Counsel: for attorney Rodkangyil Orion Danjuma counsel for Plaintiffs Annika Alliksoo, Clemente De La Cerda, Duncan Roy, Christian Michel Varela. Rodkangyil Orion Danjuma is no longer attorney of record for the aforementioned party in this case for the reason indicated in the G-123 Notice. Filed by Plaintiff Duncan Roy, Annika Alliksoo, Clemente De La Cerda, and Christian Michel Varela. (Danjuma, Rodkangyil) (Entered: 10/24/2014)

01/21/2015 01/21/2015 01/22/2015 01/26/2015 02/19/2015 02/19/2015 03/02/2015 03/05/2015
03/27/2015 04/02/2015

53 Joint REQUEST for Order for Production of confidential data filed by Plaintiffs Annika Alliksoo, Clemente De La Cerda, Duncan Roy, Christian Michel Varela. (Attachments: # 1 Proposed Order)(Litt, Barrett) (Entered: 01/21/2015)
54 STIPULATION to Continue Deadlines for Filing Plaintiffs' Motion for Class Certification from January 26, 2015 to June 15, 2015 filed by Plaintiff Duncan Roy. (Attachments: # 1 Proposed Order)(Battles, Lindsay) (Entered: 01/21/2015)
55 ORDER GRANTING THE PARTIES' STIPULATION TO CONTINUE CLASS CERTIFICATION MOTION FILING DEADLINES by Judge Beverly Reid O'Connell, re Stipulation to Continue 54 . (rfi) (Entered: 01/22/2015)
56 ORDER RE STIPULATION REGARDING PRODUCTION OF CONFIDENTIAL DATA FROM LOS ANGELES COUNTY SHERIFFS DEPARTMENT COMPUTER SYSTEMS by Magistrate Judge Frederick F. Mumm: granting 53 Request for Order (see attached) (jm) (Entered: 01/27/2015)
57 OBJECTIONS to Plaintiffs' Subpoena filed by Objector Department of Homeland Security (DHS). (Weintraub, Jacob) (Entered: 02/19/2015)
58 NOTICE of Appearance filed by attorney Jacob Max Weintraub on behalf of Objector Department of Homeland Security (DHS) (Attorney Jacob Max Weintraub added to party Department of Homeland Security (DHS)(pty:obj))(Weintraub, Jacob) (Entered: 02/19/2015)
59 NOTICE of Erroneous Filing filed by non-party Department of Homeland Security (DHS). (Weintraub, Jacob) (Entered: 03/02/2015)
60 NOTICE of Appearance filed by attorney Katherine M Traverso on behalf of Plaintiffs Annika Alliksoo, Clemente De La Cerda, Duncan Roy, Christian Michel Varela (Attorney Katherine M Traverso added to party Annika Alliksoo(pty:pla), Attorney Katherine M Traverso added to party Clemente De La Cerda(pty:pla), Attorney Katherine M Traverso added to party Duncan Roy(pty:pla), Attorney Katherine M Traverso added to party Christian Michel Varela(pty:pla))(Traverso, Katherine) (Entered: 03/05/2015)
61 STIPULATION for Protective Order filed by Plaintiffs Annika Alliksoo, Clemente De La Cerda, Duncan Roy, Christian Michel Varela. (Attachments: # 1 Proposed Order)(Bansal, Jessica) (Entered: 03/27/2015)
62 ORDER RE: STIPULATED PROTECTIVE ORDER FOR DHS PRODUCTIONS 61 by Magistrate Judge Frederick F. Mumm. *Note: Changes Made By the Court.** (es) (Entered: 04/02/2015)

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63 NOTICE OF MOTION AND MOTION of All counsel for plaintiffs to Withdraw as Attorney for Christian Michel Varela only filed by plaintiffs Annika Alliksoo, Clemente De La Cerda, Duncan Roy, Christian Michel Varela. (Attachments: # 1 Proposed Order Granting Motion to Withdraw as Counsel)(Pasquarella, Jennifer) (Entered: 04/07/2015)
64 NOTICE TO FILER OF DEFICIENCIES in Electronically Filed Documents RE: MOTION of All counsel for plaintiffs to Withdraw as Attorney for Christian Michel Varela only 63 . The following error(s) was found: Case number is incorrect or missing. In response to this notice the court may order (1) an amended or correct document to be filed (2) the document stricken or (3) take other action as the court deems appropriate. You need not take any action in response to this notice unless and until the court directs you to do so. (jloz) (Entered: 04/07/2015)
65 NOTICE OF MOTION AND MOTION to Dismiss PLAINTIFF CHRISTIAN MICHEAL VARELA PURSUANT TO FED.R.CIV.P. RULE 41(B) AND RULE 37 FOR FAILURE TO PROSECUTE filed by DEFENDANTS Leroy D Baca, County of Los Angeles. Motion set for hearing on 5/11/2015 at 01:30 PM before Judge Beverly Reid O'Connell. (Attachments: # 1 Proposed Order)(Clark, Justin) (Entered: 04/07/2015)
66 MINUTE ORDER IN CHAMBERS by Judge Beverly Reid O'Connell: Plaintiffs' counsel is ORDERED to file a declaration stating whether they intend to file an opposition or whether they will not oppose the motion. The declaration shall be filed by no later than Friday, April 17, 2015, at 4:00 p.m 65 . (rfi) (Entered: 04/09/2015)
67 DECLARATION of Jennifer Pasquarella re Minutes of In Chambers Order/Directive - no proceeding held, 66 NON-OPPOSITION TO DEFENDANT COUNTY OF LOS ANGELES MOTION TO DISMISS PLAINTIFF CHRISTIAN MICHEL VARELA filed by Plaintiffs Annika Alliksoo, Clemente De La Cerda, Duncan Roy, Christian Michel Varela. (Pasquarella, Jennifer) (Entered: 04/16/2015)
68 NOTICE of Change of other firm name or address information by Jessica Karp Bansal attorney for Plaintiffs Annika Alliksoo, Clemente De La Cerda, Duncan Roy. Changing Email Address. Filed by Plaintiffs Annika Alliksoo, Clemente De La Cerda, Duncan Roy. (Bansal, Jessica) (Entered: 04/23/2015)
69 MINUTES (IN CHAMBERS) ORDER GRANTING Defendants' Motion to Dismiss 65 and VACATING Plaintiffs' Motion to Withdraw as Counsel 63 AS MOOT by Judge Beverly Reid O'Connell: Defendants' Motion to Dismiss pursuant to Federal Ruleof Civil Procedure 41(b) is GRANTED. Mr. Varela is hereby DISMISSED withoutprejudice from this case. Plaintiffs' Motion to Withdraw is accordingly VACATED as moot. The hearing on these matters set for 5/11/2015, at 1:30 PM., is herebyVACATED. (jp) (Entered: 04/27/2015)

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70 STIPULATION to Continue Trial and Pretrial Deadlines filed by Plaintiffs Annika Alliksoo, Clemente De La Cerda, Duncan Roy. (Attachments: # 1 Proposed Order)(Bansal, Jessica) (Entered: 06/05/2015)
71 NOTICE OF MOTION AND MOTION for Judgment on the Pleadings as to Plaintiffs' Complaint filed by Defendants Leroy D Baca, County of Los Angeles. Motion set for hearing on 7/6/2015 at 01:30 PM before Judge Beverly Reid O'Connell. (Attachments: # 1 Proposed Order)(Clark, Justin) (Entered: 06/08/2015)
72 NOTICE OF MOTION AND MOTION to Consolidate Cases, as to CV 13-04416 BRO, filed by Defendants Leroy D Baca, County of Los Angeles. Motion set for hearing on 7/6/2015 at 01:30 PM before Judge Beverly Reid O'Connell. (Attachments: # 1 Proposed Order)(Clark, Justin) (Entered: 06/08/2015)
73 ORDER GRANTING STIPULATION TO CONTINUE TRIAL AND PRETRIAL DATES by Judge Beverly Reid O'Connell, re Stipulation to Continue 70 Discovery cut-off 5/31/2016; Last date for hearing on motions is 6/6/2016 at 1:30 pm, Motions in Limine to be filed by 7/5/2016., Proposed Pretrial Order due by 6/27/2016., Last date to conduct settlement conference is 6/13/2016., Jury Trial set for 8/9/2016 at 8:30 AM before Judge Beverly Reid O'Connell., Pretrial Conference set for 7/11/2016 at 3:00 PM before Judge Beverly Reid O'Connell. (rfi) (Entered: 06/09/2015)
74 STIPULATION to Continue Defendants' Motion for Judgment on the Pleadings from 7/6/2015 to 7/13/2015 Re: MOTION for Judgment on the Pleadings as to Plaintiffs' Complaint 71 filed by Plaintiff Clemente De La Cerda. (Attachments: # 1 Proposed Order Approving the Parties' Stipulation to Continue Defendants' Motion for Judgment on the Pleadings)(Battles, Lindsay) (Entered: 06/10/2015)
75 STIPULATION to Continue Defendants' Motion for Consolidation from 7/6/2015 to 8/3/2015 Re: MOTION to Consolidate Cases, as to CV 1304416 BRO, 72 filed by Plaintiff Clemente De La Cerda. (Attachments: # 1 Proposed Order)(Battles, Lindsay) (Entered: 06/11/2015)
76 ORDER Re Stipulation to Continue Defendants' Motion for Judgment of the Pleadings 74 by Judge Beverly Reid O'Connell. The deadlines regarding Defendants' Motion for Judgment on the Pleadings 71 shall be continued by one week as follows: (1) The hearing on Defendants' motion will be moved from 7/6/2015 to 7/13/2015; (2) The deadline for Defendants' reply brief will be moved from 6/22/2015 to 7/29/2015; and, (3) The deadline for Plaintiffs' Opposition will be moved from 6/15/2015 to 6/22/2015. (jp) (Entered: 06/11/2015)
77 ORDER Re Stipulation to Continue Defendants' Motion to Consolidate 75 by Judge Beverly Reid O'Connell. The deadlines

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regarding Defendants' Motion to Consolidate shall be continued as follows: (1) The hearing on Defendants' motion will be moved from 7/6/2015 to 8/3/2015; (2) The deadline for Defendants' reply brief will be moved from 6/22/2015 to 7/20/2015; and, (3) The deadline for Plaintiffs' Opposition, and the Department of Homeland Security's Opposition, will be moved from 6/15/2015 to 7/6/2015. (jp) (Entered: 06/11/2015)
78 NOTICE OF ERRATA filed by Plaintiff Duncan Roy. correcting Stipulation to Continue, 74 , Order,,, Set/Reset Motion Hearing and R&R Deadlines,, 76 (Battles, Lindsay) (Entered: 06/12/2015)
79 Joint STIPULATION to Exceed Page Limitation as to Opposition to Motion for Judgment on the Pleadings filed by Plaintiff Duncan Roy. (Attachments: # 1 Proposed Order)(Battles, Lindsay) (Entered: 06/22/2015)
80 Opposition InOpposition re: MOTION for Judgment on the Pleadings as to Plaintiffs' Complaint 71 filed by Plaintiff Duncan Roy. (Battles, Lindsay) (Entered: 06/22/2015)
81 DECLARATION of Jennifer Pasquarella In Opposition To MOTION for Judgment on the Pleadings as to Plaintiffs' Complaint 71 filed by Plaintiff Duncan Roy. (Attachments: # 1 Exhibit A, # 2 Exhibit B, # 3 Exhibit C)(Battles, Lindsay) (Entered: 06/22/2015)
82 ORDER GRANTING STIPULATION FOR OVERLONG BRIEFS 79 by Judge Beverly Reid O'Connell. (jloz) (Entered: 06/23/2015)
83 REPLY TO PLAINTIFFS' OPPOSITION TO DEFENDANTS' MOTION for Judgment on the Pleadings as to Plaintiffs' Complaint 71 filed by Defendants Leroy D Baca, County of Los Angeles. (Clark, Justin) (Entered: 06/29/2015)
84 MEMORANDUM in Opposition to MOTION to Consolidate Cases, as to CV 13-04416 BRO, 72 filed by Objector Department of Homeland Security (DHS). (Weintraub, Jacob) (Entered: 07/01/2015)
85 RESPONSE filed by Plaintiff Duncan Roy Response to Evidentiary Objections (Battles, Lindsay) (Entered: 07/02/2015)
86 REQUEST FOR JUDICIAL NOTICE filed by Plaintiff Duncan Roy. (Attachments: # 1 Exhibit A, # 2 Exhibit B, # 3 Exhibit C)(Battles, Lindsay) (Entered: 07/02/2015)
87 MEMORANDUM in Opposition to MOTION to Consolidate Cases, as to CV 13-04416 BRO, 72 filed by Plaintiffs Annika Alliksoo, Clemente De La Cerda, Duncan Roy, Christian Michel Varela. (Pasquarella, Jennifer) (Entered: 07/06/2015)
88 (IN CHAMBERS) ORDER GRANTING IN PART AND DENYING IN PART DEFENDANTS' MOTION FOR JUDGMENT ON THE PLEADINGS 71 by Judge Beverly Reid O'Connell: Defendants' Motion

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for Judgment on the Pleadings is GRANTED in part and DENIED in part. Plaintiffs' third and fourth claims for violations of article I, sections 7 and 13 of the California Constitution are DISMISSED to the extent Plaintiffs seek monetary relief. Plaintiffs' eighth claim for violations of the Bane Act under section 52.1 is also DISMISSED. The hearing set for this matter on July 13, 2015, at 1:30 p.m., is hereby VACATED. IT IS SO ORDERED. (jloz) (Entered: 07/09/2015)
89 REPLY MOTION to Consolidate Cases, as to CV 13-04416 BRO, 72 filed by Defendants Leroy D Baca, County of Los Angeles. (Clark, Justin) (Entered: 07/20/2015)
90 REPLY MOTION to Consolidate Cases, as to CV 13-04416 BRO, 72 filed by Defendants Leroy D Baca, County of Los Angeles. (Clark, Justin) (Entered: 07/20/2015)
91 MINUTES (IN CHAMBERS) ORDER GRANTING MOTIONS TO CONSOLIDATE by Judge Beverly Reid O'Connell: County Defendants The County of Los Angeles and Los Angeles County Sheriff's Motions to Consolidate 72 are GRANTED. These cases are hereby consolidated for pretrial purposes only. The Court will consider a renewed motion to consolidate these matters for trial at a later date, with any such motion to be filed and heard by no later than 6/6/2016. For ease of record keeping, all further documents and proceedings shall occur under Case No. CV 1209012 BRO (FFMx). Case No. CV 13-04416 BRO (FFMx) shall be closed until pretrial proceedings have expired, at which point the case shall be reopened if the matters are not consolidated for trial. Until such time, counsel shall file all further documents under Case No. CV 1209012 BRO (FFMx) only. The hearing on County Defendants' consolidation motions scheduled for 8/3/2015 at 1:30 PM, is hereby VACATED. The parties are also ordered to attend a mandatory status conference on 8/24/2015 at 1:30 PM, to discuss any further issues related to consolidation. Court Reporter: Not Present. (gk) (Entered: 07/28/2015)
92 Joint STIPULATION to Vacate Pre-trial and trial deadlines Order,,, Set/Reset Deadlines/Hearings,, 73 filed by Plaintiffs Annika Alliksoo, Clemente De La Cerda, Duncan Roy, Christian Michel Varela. (Attachments: # 1 Proposed Order)(Battles, Lindsay) (Entered: 08/07/2015)
93 ORDER RE STIPULATION TO VACATE THE SEPTEMBER 14, 2015 DEADLINE FOR PLAINTIFFS' MOTION FOR PARTIAL SUMMARY JUDGMENT AND TO VACATE DEADLINES IN GONZALEZ PENDING FURTHER INSTRUCTION FROM THE COURT 92 by Judge Beverly Reid O'Connell. IT IS ORDERED: 1. All pretrial and trial deadlines in Gonzalez shall be vacated pending further instruction from the Court. Absent further order from the Court, the deadlines set by the Court's June 9, 2015 Order [Dkt. 73] shall apply to Gonzalez. 2. The

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September 14, 2015 deadline for Plaintiffs to file their Motion for Partial Summary Judgment shall be vacated. (jloz) (Entered: 08/07/2015)
94 Joint STIPULATION to Continue Mandatory Status Conference from August 24, 2015 to September 11 or 21, 2015 Re: Order on Motion to Consolidate Cases,,,, 91 filed by Consolidated Defendant Department of Homeland Security (DHS). (Attachments: # 1 Proposed Order)(Weintraub, Jacob) (Entered: 08/19/2015)
95 ORDER GRANTING Stipulation to Continue August 24, 2015 Status Conference 94 by Judge Beverly Reid O'Connell that the 8/24/2015 Conference is hereby CONTINUED until 9/11/2015 at 8:30 AM. (jp) (Entered: 08/20/2015)
96 NOTICE OF MOTION AND MOTION to Amend Complaint (Discovery), 1 filed by Plaintiffs Annika Alliksoo, Clemente De La Cerda, Duncan Roy, Christian Michel Varela. Motion set for hearing on 9/21/2015 at 01:30 PM before Judge Beverly Reid O'Connell. (Attachments: # 1 Exhibit Proposed First Amended Complaint, # 2 Proposed Order) (Litt, Barrett) (Entered: 08/24/2015)
97 DECLARATION of Lindsay Battles In Support Of NOTICE OF MOTION AND MOTION to Amend Complaint - (Discovery), 1 96 filed by Plaintiffs Annika Alliksoo, Clemente De La Cerda, Duncan Roy, Christian Michel Varela. (Litt, Barrett) (Entered: 08/24/2015)
98 OPPOSITION TO PLAINTIFFS' MOTION FOR LEAVE TO AMEND THE SCHEDULING ORDER AND TO AMEND THE PLEADINGS re: NOTICE OF MOTION AND MOTION to Amend Complaint (Discovery), 1 96 filed by Defendants Leroy D Baca, County of Los Angeles. (Attachments: # 1 Exhibits A-D)(Clark, Justin) (Entered: 08/31/2015)
99 REPLY In Support Of NOTICE OF MOTION AND MOTION to Amend Complaint - (Discovery), 1 96 filed by Plaintiffs Annika Alliksoo, Clemente De La Cerda, Duncan Roy, Christian Michel Varela. (Litt, Barrett) (Entered: 09/08/2015)
100 DECLARATION of Lindsay Battles In Support Of NOTICE OF MOTION AND MOTION to Amend Complaint - (Discovery), 1 96 filed by Plaintiffs Annika Alliksoo, Clemente De La Cerda, Duncan Roy, Christian Michel Varela. (Attachments: # 1 Exhibit A, # 2 Exhibit B, # 3 Exhibit C)(Litt, Barrett) (Entered: 09/08/2015)
101 DECLARATION of Jennifer Pasquarella In Support Of NOTICE OF MOTION AND MOTION to Amend Complaint - (Discovery), 1 96 filed by Plaintiffs Annika Alliksoo, Clemente De La Cerda, Duncan Roy, Christian Michel Varela. (Attachments: # 1 Exhibit A, # 2 Exhibit B)(Litt, Barrett) (Entered: 09/08/2015)

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102 OBJECTIONS AND REQUEST TO STRIKE PLAINTIFFS' UNTIMELY REPLY re: NOTICE OF MOTION AND MOTION to Amend Complaint - (Discovery), 1 96 filed by Defendants Leroy D Baca, County of Los Angeles. (Clark, Justin) (Entered: 09/09/2015)
103 SCHEDULING NOTICE by Judge Beverly Reid O'Connell. The Court VACATES the hearing on the previously scheduled Status Conference in this matter, set for 9/11/2015 at 8:30. No appearance is necessary. THERE IS NO PDF DOCUMENT ASSOCIATED WITH THIS ENTRY. (rfi) TEXT ONLY ENTRY (Entered: 09/10/2015)
104 EX PARTE APPLICATION for Enlargement of Time to File plaintiffs' reply brief, or in the alternative, to continue the hearing date to September 28, 2015 filed by Plaintiff Annika Alliksoo, Clemente De La Cerda, Duncan Roy, Christian Michel Varela. (Attachments: # 1 Proposed Order) (Battles, Lindsay) (Entered: 09/10/2015)
105 OPPOSITION re: EX PARTE APPLICATION for Enlargement of Time to File plaintiffs' reply brief, or in the alternative, to continue the hearing date to September 28, 2015 104 filed by Defendants Leroy D Baca, County of Los Angeles. (Clark, Justin) (Entered: 09/11/2015)
106 ORDER by Judge Beverly Reid O'Connell: granting 104 EX PARTE APPLICATION for Enlargement of Time to File. The Court grants Plaintiffs request to enlarge the deadline for filing their reply brief. (rfi) (Entered: 09/14/2015)
107 MINUTES IN CHAMBERS by Judge Beverly Reid O'Connell: The Court GRANTS in part and DENIES in part Plaintiffs' Motion to for Leave to Amend. Plaintiffs must file a First Amended Complaint, pursuant to this Courts Order, no later than 4 p.m. on Friday, October 2, 2015. The hearing set for September 21, 2015 is hereby VACATED.IT IS SO ORDERED 96 (rfi) (Entered: 09/18/2015)
108 NOTICE Regarding Plaintiffs' First Amended Complaint filed by Plaintiffs Annika Alliksoo, Clemente De La Cerda, Duncan Roy, Christian Michel Varela. (Battles, Lindsay) (Entered: 10/02/2015)
109 First AMENDED COMPLAINT against Defendants Leroy D Baca, County of Los Angeles amending Complaint - (Discovery), 1 , filed by Plaintiffs Duncan Roy, Annika Alliksoo, Clemente De La Cerda, Christian Michel Varela(Battles, Lindsay) (Entered: 10/02/2015)
110 STIPULATION for Protective Order filed by DEFENDANTS Leroy D Baca, County of Los Angeles. (Attachments: # 1 Proposed Order)(Clark, Justin) (Entered: 10/07/2015)
111 ORDER APPROVING STIPULATION FOR PROTECTIVE ORDER FOR PRODUCTION OF DISCOVERY RESPONSES AND DOCUMENT PRODUCTIONS IN CONSOLIDATED CASES by Magistrate Judge Frederick F. Mumm re Stipulation for Protective

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Order 110 : All protective orders entered in Roy shall apply to the parties in Gonzalez. All protective orders entered in Gonzalez shall apply to the parties in Roy. (jm) (Entered: 10/14/2015)
112 NOTICE OF MOTION AND MOTION to Dismiss PLAINTIFFS' FIRST AMENDED COMPLAINT AND MOTION TO STRIKE filed by DEFENDANTS Leroy D Baca, County of Los Angeles. Motion set for hearing on 11/23/2015 at 01:30 PM before Judge Beverly Reid O'Connell. (Attachments: # 1 Proposed Order) (Clark, Justin) (Entered: 10/26/2015)
113 Opposition In Opposition re: NOTICE OF MOTION AND MOTION to Dismiss PLAINTIFFS' FIRST AMENDED COMPLAINT AND MOTION TO STRIKE 112 filed by Plaintiff Duncan Roy. (Litt, Barrett) (Entered: 11/02/2015)
114 NOTICE filed by Plaintiffs Annika Alliksoo, Clemente De La Cerda, Duncan Roy, Christian Michel Varela. (Battles, Lindsay) (Entered: 11/02/2015)
115 MEMORANDUM in Opposition to NOTICE OF MOTION AND MOTION to Dismiss PLAINTIFFS' FIRST AMENDED COMPLAINT AND MOTION TO STRIKE 112 (Amended Opposition) filed by Plaintiffs Annika Alliksoo, Clemente De La Cerda, Duncan Roy, Christian Michel Varela. (Battles, Lindsay) (Entered: 11/02/2015)
116 EX PARTE APPLICATION for Hearing as to Rescheduled Status Conference re Text Only Scheduling Notice, 103 , Order on Motion to Consolidate Cases,,,, 91 filed by Defendant in Consolidated Action Department of Homeland Security (DHS). (Attachments: # 1 Proposed Order)(Weintraub, Jacob) (Entered: 11/04/2015)
117 NOTICE OF JOINDER IN EX PARTE APPLICATION TO RESCHEDULE STATUS CONFERENCE (DOCKET NO. 116) filed by DEFENDANTS Leroy D Baca, County of Los Angeles. (Clark, Justin) (Entered: 11/05/2015)
118 ORDER by Judge Beverly Reid O'Connell: granting 116 Ex Parte Application for Hearing. The application is hereby GRANTED, and the Court reschedules the previously vacated status conference on December 21, 2015 at 1:30 p.m., in Courtroom 14. Further, the Parties are hereby ORDERED to schedule a conference with the Honorable Frederick F. Mumm FORTHWITH to resolve any discovery issues. (rfi) (Entered: 11/06/2015)
119 REPLY IN SUPPORT OF NOTICE OF MOTION AND MOTION to Dismiss PLAINTIFFS' FIRST AMENDED COMPLAINT AND MOTION TO STRIKE 112 filed by Defendants Leroy D Baca, County of Los Angeles. (Clark, Justin) (Entered: 11/09/2015)

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120 STIPULATION for Hearing re discovery issues post consolidation filed by Defendants Leroy D Baca, County of Los Angeles. (Attachments: # 1 Proposed Order)(Clark, Justin) (Entered: 11/10/2015)
121 ORDER SETTING A STATUS CONFERENCE BEFORE THE MAGISTRATE JUDGE RE: DISCOVERY ISSUES POST CONSOLIDATION by Magistrate Judge Frederick F. Mumm, re Stipulation for Hearing 120 , Set hearings re Stipulation for Hearing 120 . Status Conference set for 11/17/2015 10:00 AM before Magistrate Judge Frederick F. Mumm. (jm) (Entered: 11/13/2015)
122 MINUTES OF Status Conference held before Magistrate Judge Frederick F. Mumm. Court Recorder: CS 11/17/15. (mz) (Entered: 11/19/2015)
123 SUPPLEMENT to NOTICE OF MOTION AND MOTION to Dismiss PLAINTIFFS' FIRST AMENDED COMPLAINT AND MOTION TO STRIKE 112 filed by Defendants Leroy D Baca, County of Los Angeles. (Attachments: # 1 Opinion, King v. State of California)(Clark, Justin) (Entered: 11/19/2015)
124 MINUTES (IN CHAMBERS) by Judge Beverly Reid O'Connell: The Court GRANTS in part and DENIES in part Defendants' Motion to Dismiss and GRANTS Defendants' Motion to Strike paragraphs 60 and 61 of Plaintiffs' First Amended Complaint. Plaintiffs must file a Second Amended Complaint, pursuant to this Court's Order, no later than 4 p.m. on Monday, December 7, 2015. The hearing set for November 23, 2015 is hereby VACATED. IT IS SO ORDERED 112 (rfi) (Entered: 11/20/2015)
125 SECOND AMENDED COMPLAINT against Defendants All Plaintiffs amending Amended Complaint/Petition 109 , filed by Plaintiffs Duncan Roy, Annika Alliksoo, Clemente De La Cerda, Christian Michel Varela(Litt, Barrett) (Entered: 12/07/2015)
126 Notice of Appearance or Withdrawal of Counsel: for attorney Katherine K Desormeau counsel for Plaintiffs Annika Alliksoo, Clemente De La Cerda, Duncan Roy, Christian Michel Varela. Katherine Desormeau is no longer counsel of record for the aforementioned party in this case for the reason indicated in the G-123 Notice. Filed by Plaintiff Roy et al. (Desormeau, Katherine) (Entered: 12/09/2015)
127 Notice of Appearance or Withdrawal of Counsel: for attorney Katherine K Desormeau counsel for Plaintiffs Annika Alliksoo, Clemente De La Cerda, Duncan Roy, Christian Michel Varela. Katherine Desormeau is no longer counsel of record for the aforementioned party in this case for the reason indicated in the G-123 Notice. Filed by Plaintiff Gerardo Gonzalez. (Desormeau, Katherine) (Entered: 12/09/2015)
128 MINUTES OF STATUS CONFERENCE held before Judge Beverly Reid O'Connell: Counsel states their appearances for the record. Court and counsel confer. As discussed on the record, the parties are to file a

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Stipulation and Proposed Order with a new schedule no later than December 29, 2015. The Court will grant a 60 day continuance of the Trial and related deadlines. IT IS SO ORDEREDCourt Reporter: Myra Ponce. (rfi) (Entered: 12/22/2015)
129 ANSWER to Amended Complaint/Petition 125 filed by DEFENDANTS Leroy D Baca, County of Los Angeles.(Clark, Justin) (Entered: 12/22/2015)
130 Joint STIPULATION to Continue Scheduling Deadlines Re: Status Conference, 128 filed by Plaintiff Duncan Roy. (Attachments: # 1 Proposed Order)(Battles, Lindsay) (Entered: 12/28/2015)
131 ORDER RE GRANTING THE PARTIES' STIPULATION TO EXTEND SCHEDULING ORDER DEADLINES by Judge Beverly Reid O'Connell, re Stipulation to Continue 130 Last date for hearing on Motions is 8/8/2016 at 1:30 p.m, Motions in Limine to be filed by 9/5/2016., Proposed Pretrial Order due by 8/29/2016., Last date to conduct settlement conference is 8/15/2016., Jury Trial set for 10/11/2016 at 8:30 AM before Judge Beverly Reid O'Connell., Pretrial Conference set for 9/12/2016 at 3:00 PM before Judge Beverly Reid O'Connell. (rfi) (Entered: 12/29/2015)
132 NOTICE REGARDING UPDATED STANDING ORDERS: Please take notice that Judge Beverly Reid O'Connell has updated the Court's Standing Orders. The Court ORDERS the parties to comply with any and all updated procedures. You can find the updated ORDERS on the Court's website, located at WWW.CACD.USCOURTS.GOV, under Judges Procedures and Schedules. THERE IS NO PDF DOCUMENT ASSOCIATED WITH THIS ENTRY. (cw) TEXT ONLY ENTRY (Entered: 01/13/2016)
133 Joint STIPULATION for Order Dismissing Plaintiff Roy's Claims filed by Plaintiff Roy Duncan Roy. (Attachments: # 1 Proposed Order)(Battles, Lindsay) (Entered: 01/21/2016)
134 ORDER GRANTING The Parties' Joint Request for Dismissal of Plaintiff Duncan Roy's Claims (Settlement Consummated) 133 by Judge Beverly Reid O'Connell that Plaintiff Duncan Roy's claims are hereby dismissed from this lawsuit with prejudice. This dismissal does not affect the claims of any other Plaintiffs asserted on their own behalf, or on behalf of a putative class. (jp) (Entered: 01/25/2016)
135 APPLICATION for attorney Mark Fleming to Appear Pro Hac Vice (PHV Fee of $325 receipt number 0973-17202617 paid.) filed by Plaintiffs Annika Alliksoo, Clemente De La Cerda, Duncan Roy, Christian Michel Varela. (Attachments: # 1 Proposed Order ON APPLICATION OF NON-RESIDENT ATTORNEY TO APPEAR PRO HAC VICE) (Pasquarella, Jennifer) (Entered: 02/01/2016)

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136 APPLICATION for attorney Mark Fleming to Appear Pro Hac Vice (PHV Fee of $325 receipt number 0973-17209930 paid.) filed by Plaintiffs Annika Alliksoo, Clemente De La Cerda, Duncan Roy, Christian Michel Varela. (Attachments: # 1 Proposed Order ON APPLICATION OF NON-RESIDENT ATTORNEY TO APPEAR IN A SPECIFIC CASE PRO HACE VICE) (Pasquarella, Jennifer) (Entered: 02/02/2016)
137 NOTICE TO FILER OF DEFICIENCIES in Electronically Filed Documents RE: APPLICATION for attorney Mark Fleming to Appear Pro Hac Vice (PHV Fee of $325 receipt number 0973-17202617 paid.) 135 . The following error(s) was found: Other error(s) with document(s) are specified below: No signature on Application. Local counsel failed to sign the application. See LR 11-1. See Instructions for Applicants (1) note that electronic signatures are not accepted. (G-64). In response to this notice the court may order (1) an amended or correct document to be filed (2) the document stricken or (3) take other action as the court deems appropriate. You need not take any action in response to this notice unless and until the court directs you to do so. (lt) (Entered: 02/03/2016)
138 NOTICE TO FILER OF DEFICIENCIES in Electronically Filed Documents RE: APPLICATION for attorney Mark Fleming to Appear Pro Hac Vice (PHV Fee of $325 receipt number 0973-17209930 paid.) 136 . The following error(s) was found: Case number is incorrect or missing.Document submitted in the wrong case.Other error(s) with document(s) are specified below: No signature on Application. Local counsel failed to sign the application. See LR 11-1. See Instructions for Applicants (1) note that electronic signatures are not accepted. (G-64). Judges initials are missing.. In response to this notice the court may order (1) an amended or correct document to be filed (2) the document stricken or (3) take other action as the court deems appropriate. You need not take any action in response to this notice unless and until the court directs you to do so. (lt) (Entered: 02/03/2016)
139 Corrected APPLICATION for attorney Mark Fleming to Appear Pro Hac Vice (PHV Fee of $325 receipt number 0973-17243642 paid.) filed by Plaintiffs Annika Alliksoo, Clemente De La Cerda, Duncan Roy, Christian Michel Varela. (Attachments: # 1 Proposed Order ON APPLICATION OF NON-RESIDENT ATTORNEY TO APPEAR IN A SPECIFIC CASE PRO HACE VICE) (Pasquarella, Jennifer) (Entered: 02/08/2016)
140 ORDER ON APPLICATION OF NON-RESIDENT ATTORNEY TO APPEAR IN A SPECIFIC CASE PRO HAC VICE by Judge Beverly Reid O'Connell: granting 139 APPLICATION to Appear Pro Hac Vice by Attorney Mark M. Fleming on behalf of Plaintiffs, designating Jennifer L. Pasquarella as local counsel. (lt) (Entered: 02/09/2016)

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141 REQUEST for Hearing as to Telephonic Discovery Conference filed by Plaintiffs Annika Alliksoo, Clemente De La Cerda, Christian Michel Varela. (Battles, Lindsay) (Entered: 03/09/2016)
142 STIPULATION to Continue Trial, Pretrial Deadlines and Deadline for Plaintiffs' Motion for Class Certification filed by Plaintiffs Annika Alliksoo, Clemente De La Cerda, Christian Michel Varela. (Attachments: # 1 Proposed Order)(Battles, Lindsay) (Entered: 03/09/2016)
143 ORDER by Judge Beverly Reid O'Connell, re Stipulation to Continue, 142 , The deadlines and hearings originally scheduled have been rescheduled. Discovery cut-off 8/1/2016., Last date for hearing on Motions is 10/17/2016, Motions in Limine to be filed by 11/21/2016., Proposed Pretrial Order due by 11/14/2016., Last date to conduct settlement conference is 10/31/2016, Jury Trial set for 1/10/2017 at 8:30 AM before Judge Beverly Reid O'Connell., Pretrial Conference set for 11/28/2016 at 3:00 PM before Judge Beverly Reid O'Connell. (rfi) (Entered: 03/11/2016)
144 MINUTES OF TELEPHONIC STATUS CONFERENCE held before Magistrate Judge Frederick F. Mumm: Plaintiffs' request to question certain 30(b)(6) witnesses for up to seven hours is granted. (jm) (Entered: 03/21/2016)
145 OBJECTIONS to Plaintiffs' Subpoena filed by Objector Department of Homeland Security (DHS). (Weintraub, Jacob) (Entered: 04/28/2016)
146 STIPULATION to Exceed Page Limitation as to Plaintiffs' Motion for Class Certification filed by Plaintiffs Annika Alliksoo, Clemente De La Cerda. (Attachments: # 1 Proposed Order)(Battles, Lindsay) (Entered: 05/06/2016)
147 APPLICATION to file document Exhibit 1 in Support of Plaintiffs' Motion for Class Certification under seal filed by Plaintiffs Annika Alliksoo, Clemente De La Cerda. (Attachments: # 1 Proposed Order, # 2 Redacted Document)(Battles, Lindsay) (Entered: 05/09/2016)
148 SEALED DECLARATION IN SUPPORT OF APPLICATION to file document Exhibit 1 in Support of Plaintiffs' Motion for Class Certification under seal 147 filed by Plaintiffs Annika Alliksoo, Clemente De La Cerda. (Attachments: # 1 Unredacted Document)(Battles, Lindsay) (Entered: 05/09/2016)
149 APPLICATION to file document Exhibits 1-4 In Support of Motion for Class Certification in Gonzalez 2:13-cv-04416 under seal filed by Plaintiffs Annika Alliksoo, Clemente De La Cerda. (Attachments: # 1 Proposed Order, # 2 Redacted Document, # 3 Redacted Document, # 4 Redacted Document, # 5 Redacted Document)(Battles, Lindsay) (Entered: 05/09/2016)

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150 SEALED DECLARATION IN SUPPORT OF APPLICATION to file document Exhibits 1-4 In Support of Motion for Class Certification in Gonzalez 2:13-cv-04416 under seal 149 filed by Plaintiffs Annika Alliksoo, Clemente De La Cerda. (Attachments: # 1 Unredacted Document, # 2 Unredacted Document, # 3 Unredacted Document, # 4 Unredacted Document)(Battles, Lindsay) (Entered: 05/09/2016)
151 NOTICE OF MOTION AND MOTION to Certify Class filed by Plaintiffs Annika Alliksoo, Clemente De La Cerda. Motion set for hearing on 7/11/2016 at 01:30 PM before Judge Beverly Reid O'Connell. (Attachments: # 1 Declaration Barrett S. Litt ISO Plaintiffs' Class Certification Motion, # 2 Declaration Lindsay Battles ISO Plaintiffs' Class Certification Motion, # 3 Exhibit A, # 4 Exhibit B, # 5 Exhibit C, # 6 Exhibit D, # 7 Exhibit E, # 8 Exhibit F, # 9 Exhibit G, # 10 Exhibit H, # 11 Exhibit I, # 12 Exhibit J, # 13 Exhibit K, # 14 Exhibit L, # 15 Exhibit M, # 16 Exhibit N, # 17 Exhibit O, # 18 Exhibit P, # 19 Exhibit Q, # 20 Exhibit R, # 21 Exhibit S, # 22 Exhibit T, # 23 Exhibit U, # 24 Exhibit V, # 25 Exhibit W, # 26 Exhibit X, # 27 Exhibit Y, # 28 Exhibit Z, # 29 Exhibit AA, # 30 Exhibit BB, # 31 Declaration Alain Martinez, # 32 Declaration Alliksoo, # 33 Declaration Aurelio Lopez, # 34 Declaration Xanadu Copo, # 35 Declaration Emilia Flores, # 36 Declaration Alejandro Delgado, # 37 Declaration Mike Gradilla, # 38 Declaration Alec Rose, # 39 Declaration Brendan Hamme, # 40 Declaration James Kallas, # 41 Declaration Lauro Jimenez, # 42 Declaration Melissa Keaney, # 43 Declaration Morris DeMayo, # 44 Declaration Rocio Ramirez, # 45 Declaration Liz Lopresti, # 46 Proposed Order) (Battles, Lindsay) (Entered: 05/09/2016)
152 NOTICE OF MOTION AND MOTION to Certify Class in 2:13-cv04416 filed by Plaintiffs Annika Alliksoo, Clemente De La Cerda. Motion set for hearing on 7/11/2016 at 01:30 PM before Judge Beverly Reid O'Connell. (Attachments: # 1 Memorandum, # 2 Declaration Barrett S. Litt, # 3 Declaration Lindsay Battles, # 4 Exhibit A, # 5 Exhibit B, # 6 Exhibit C, # 7 Exhibit D, # 8 Exhibit E, # 9 Exhibit F, # 10 Exhibit G, # 11 Exhibit H, # 12 Exhibit I, # 13 Exhibit J, # 14 Exhibit K, # 15 Exhibit L, # 16 Exhibit M, # 17 Exhibit N, # 18 Exhibit O, # 19 Exhibit P, # 20 Declaration Gerardo Gonzalez, # 21 Proposed Order) (Battles, Lindsay) (Entered: 05/09/2016)
153 ORDER by Judge Beverly Reid O'Connell, re Stipulation to Exceed Page Limitation 146 The parties' stipulation to increase the page limit for Plaintiffs' moving brief and Defendants' opposition brief from 25 pages to 35 pages is hereby GRANTED. (rfi) (Entered: 05/10/2016)
154 ORDER by Judge Beverly Reid O'Connell: granting 147 APPLICATION to Seal Document. Re: Sealed Declaration in Support Declaration, 148 (rfi) (Entered: 05/10/2016)

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155 SEALED DOCUMENT Exhibit 1 in Support of Plaintiffs' Motion for Class Certification re NOTICE OF MOTION AND MOTION to Certify Class 151 , Order on Motion for Leave to File Document Under Seal 154 filed by Plaintiffs Annika Alliksoo, Clemente De La Cerda.(Battles, Lindsay) (Entered: 05/10/2016)
156 ORDER by Judge Beverly Reid O'Connell: granting 149 APPLICATION to Seal Document. Re: Sealed Declaration in Support Declaration, 150 (rfi) (Entered: 05/11/2016)
157 NOTICE OF ERRATA filed by Plaintiffs Annika Alliksoo, Clemente De La Cerda, Duncan Roy, Christian Michel Varela. correcting NOTICE OF MOTION AND MOTION to Certify Class in 2:13-cv-04416 152 , APPLICATION to file document Exhibits 1-4 In Support of Motion for Class Certification in Gonzalez 2:13-cv-04416 under seal 149 (Pasquarella, Jennifer) (Entered: 05/11/2016)
158 SEALED DOCUMENT Exhibits 1-4 re NOTICE OF MOTION AND MOTION to Certify Class in 2:13-cv-04416 152 , Order on Motion for Leave to File Document Under Seal 156 filed by Plaintiffs Annika Alliksoo, Clemente De La Cerda.(Battles, Lindsay) (Entered: 05/12/2016)
159 STIPULATION to Continue Deadline for Expert Disclosures from 70 days before the end of fact discovery on August 1, 2016 to 45 days after this Court has issued its decision on Plaintiffs Motions for Class Certification filed by plaintiffs Annika Alliksoo, Clemente De La Cerda, Duncan Roy, Christian Michel Varela. (Attachments: # 1 Proposed Order Granting Order to Continue Deadline for Expert Disclosures)(Pasquarella, Jennifer) (Entered: 05/18/2016)
160 ORDER GRANTING STIPULATION TO CONTINUE DEADLINE FOR EXPERT DISCLOSURES by Judge Beverly Reid O'Connell, re Stipulation to Continue, 159 IT ISHEARBY ORDERED that the deadline for expert disclosures is extended to 45days after this Court has issued its decision on Plaintiffs Motions for ClassCertification (rfi) (Entered: 05/20/2016)
161 STIPULATION to Continue THE BRIEFING SCHEDULE AND HEARING DATE ON PLAINTIFFS' MOTIONS FOR CLASS CERTIFICATION AND FOR CORRESPONDING TRIAL AND PRETRIAL CONTINUANCES Re: NOTICE OF MOTION AND MOTION to Certify Class in 2:13-cv-04416 152 , NOTICE OF MOTION AND MOTION to Certify Class 151 filed by Defendants Leroy D Baca, County of Los Angeles. (Attachments: # 1 Proposed Order)(Clark, Justin) (Entered: 06/02/2016)
162 ORDER GRANTING STIPULATION TO CONTINUE THE BRIEFING SCHEDULE AND HEARING DATE ON PLAINTIFFS MOTIONS FOR CLASS CERTIFICATION AND FOR CORRESPONDING TRIAL AND PRETRIAL CONTINUANCES by Judge Beverly Reid O'Connell,

06/28/2016
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re Stipulation to Continue, 161 Discovery cut-off is 9/19/2016, Last date for hearing on motions is 12/5/2016 at 1:30 pm, Motions in Limine to be filed by 12/26/2016., Jury Trial set for 2/7/2017 08:30 AM before Judge Beverly Reid O'Connell., Pretrial Conference set for 1/9/2017 at 03:00 PM before Judge Beverly Reid O'Connell. The deadline for Defendants' oppositions to the Class Certification Motions is continued to June 28, 2016. The deadline for Plaintiffs' replies thereto is continued to July 22, 2016 and the hearing date on Plaintiffs' Motions are continued to August 22, 2016 at 1:30 p.m (rfi) (Entered: 06/06/2016)
163 OPPOSITION re: NOTICE OF MOTION AND MOTION to Certify Class in 2:13-cv-04416 152 filed by Objector Department of Homeland Security (DHS). (Attachments: # 1 Exhibit November 20, 2014 Memo, # 2 Exhibit I-247N, # 3 Exhibit Hamm 30(b)(6), March 16, 2016, Dep. Tr., # 4 Exhibit House, Dep. Tr., March 29, 2016, Dep. Tr., # 5 Exhibit Schichel 30(b)(6), March 4, 2016, Dep. Tr., # 6 Exhibit Hamm 30(b)(6), March 17, 2016, Dep. Tr., # 7 Exhibit Schichel 30(b)(6), March 4, 2016, Dep. Tr., # 8 Exhibit Rapp 30(b)(6), March 11, 2016, Dep. Tr., # 9 Exhibit Rapp 30(b)(6), March 10, 2016, Dep. Tr., # 10 Exhibit Hamm 30(b)(6), March 16, 2016, Dep. Tr., # 11 Exhibit Rapp 30(b)(6), March 10, 2016, Dep. Tr., # 12 Declaration J. Max Weintraub Declaration)(Weintraub, Jacob) (Entered: 06/28/2016)
164 CORRECTED OPPOSITION re: NOTICE OF MOTION AND MOTION to Certify Class in 2:13-cv-04416 152 filed by Objector Department of Homeland Security (DHS). (Attachments: # 1 Exhibit November 20, 2014 Memo, # 2 Exhibit I-247N, # 3 Exhibit Hamm 30(b)(6), March 16, 2016, Dep. Tr., # 4 Exhibit House, Dep. Tr., March 29, 2016, Dep. Tr., # 5 Exhibit Schichel 30(b)(6), March 4, 2016, Dep. Tr., # 6 Exhibit Hamm 30(b)(6), March 17, 2016, Dep. Tr., # 7 Exhibit Schichel 30(b)(6), March 4, 2016, Dep. Tr., # 8 Exhibit Rapp 30(b)(6), March 11, 2016, Dep. Tr., # 9 Exhibit Rapp 30(b)(6), March 10, 2016, Dep. Tr., # 10 Exhibit Hamm 30(b)(6), March 16, 2016, Dep. Tr., # 11 Exhibit Rapp 30(b)(6), March 10, 2016, Dep. Tr., # 12 Declaration Declaration of J. Max Weintraub)(Weintraub, Jacob) (Entered: 06/28/2016)
165 OPPOSITION in opposition re: NOTICE OF MOTION AND MOTION to Certify Class 151 filed by Defendants Leroy D Baca, County of Los Angeles. (Clark, Justin) (Entered: 06/28/2016)
166 Evidentiary Objections re: NOTICE OF MOTION AND MOTION to Certify Class 151 filed by Defendants Leroy D Baca, County of Los Angeles. (Clark, Justin) (Entered: 06/28/2016)
167 DECLARATION of Justin Clark and Greg Sivard in opposition to NOTICE OF MOTION AND MOTION to Certify Class 151 filed by Defendants Leroy D Baca, County of Los Angeles. (Attachments: # 1 Exhibit A, # 2 Exhibits B-F)(Clark, Justin) (Entered: 06/28/2016)

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168 STIPULATION to Exceed Page Limitation as to Plaintiffs' Reply Brief In Connection With Plaintiffs' Motion for Class Certification in Roy v. County of Los Angeles, STIPULATION to Continue Class Certification Hearing from 08/22/2016 to 08/29/2016 filed by Plaintiffs Annika Alliksoo, Clemente De La Cerda, Duncan Roy, Christian Michel Varela. (Attachments: # 1 Proposed Order)(Battles, Lindsay) (Entered: 07/21/2016)
169 REPLY NOTICE OF MOTION AND MOTION to Certify Class 151 filed by Plaintiffs Annika Alliksoo, Clemente De La Cerda, Duncan Roy, Christian Michel Varela. (Attachments: # 1 Declaration Lindsay Battles, # 2 Exhibit CC, # 3 Exhibit DD, # 4 Exhibit EE, # 5 Exhibit FF, # 6 Exhibit GG, # 7 Exhibit HH, # 8 Declaration Brian Kriegler, PhD)(Battles, Lindsay) (Entered: 07/22/2016)
170 APPLICATION to file document Declaration of Katherine Traverso; Exhibits 1-6 Supporting Plaintiffs Reply In Support Of Motion For Class Certification under seal filed by Plaintiffs Annika Alliksoo, Clemente De La Cerda, Duncan Roy, Christian Michel Varela. (Attachments: # 1 Proposed Order Granting Plaintiffs Application to File Under Seal Traverso Declaration Exhibits 1-6 Supporting Plaintiffs Reply In Support Of Motion For Class Certification)(Pasquarella, Jennifer) (Entered: 07/22/2016)
171 SEALED DECLARATION IN SUPPORT OF APPLICATION to file document Declaration of Katherine Traverso; Exhibits 1-6 Supporting Plaintiffs Reply In Support Of Motion For Class Certification under seal 170 filed by Plaintiffs Annika Alliksoo, Clemente De La Cerda, Duncan Roy, Christian Michel Varela. (Attachments: # 1 Declaration of Katherine Traverso Supporting Plaintiffs Reply In Support Of Motion For Class Certification, # 2 Exhibit 1, # 3 Exhibit 2, # 4 Exhibit 3, # 5 Exhibit 4, # 6 Exhibit 5, # 7 Exhibit 6)(Pasquarella, Jennifer) (Entered: 07/22/2016)
172 REPLY in support of motion NOTICE OF MOTION AND MOTION to Certify Class in 2:13-cv-04416 152 filed by Plaintiffs Annika Alliksoo, Clemente De La Cerda, Duncan Roy, Christian Michel Varela. (Pasquarella, Jennifer) (Entered: 07/22/2016)
173 DECLARATION of Jennifer Paquarella in support of Reply supporting NOTICE OF MOTION AND MOTION to Certify Class in 2:13-cv04416 152 filed by Plaintiffs Annika Alliksoo, Clemente De La Cerda, Duncan Roy, Christian Michel Varela. (Attachments: # 1 Exhibit A)(Pasquarella, Jennifer) (Entered: 07/22/2016)
174 ORDER GRANTING Stipulation re Hearing Date and Overlong Reply Brief 168 by Judge Beverly Reid O'Connell that Plaintiffs shall be permitted to file a reply brief of 15 pages. The hearing date on Plaintiffs

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Motions for Class Certification is continued from August 22, 2016 to August 29, 2016. (jp) (Entered: 07/25/2016)
175 ORDER GRANTING Plaintiffs Application to File Under Seal Traverso Declaration Exhibits 1-6 Supporting Plaintiffs Reply in support of Motion for Class Certification 170 by Judge Beverly Reid O'Connell. (jp) (Entered: 07/29/2016)
176 SEALED DOCUMENT Declaration of Katherine Traverso and Exhibits 1-6 re Reply (Motion related) 172 , Order on Motion for Leave to File Document Under Seal 175 filed by Plaintiffs Annika Alliksoo, Clemente De La Cerda, Duncan Roy, Christian Michel Varela.(Pasquarella, Jennifer) (Entered: 08/01/2016)
177 SEALED DOCUMENT Notice of Errata; Declaration of Katherine Traverso & Exhibits 1-6 re Reply (Motion related) 172 , Order on Motion for Leave to File Document Under Seal 175 filed by Plaintiffs Annika Alliksoo, Clemente De La Cerda, Duncan Roy, Christian Michel Varela. (Attachments: # 1 Declaration of Katherine Traverso and Exhibits 1-6 Supporting Plaintiffs' Reply in Support of Motion for Class Certification, # 2 Exhibit 1, # 3 Exhibit 2, # 4 Exhibit 3, # 5 Exhibit 4, # 6 Exhibit 5, # 7 Exhibit 6)(Pasquarella, Jennifer) (Entered: 08/01/2016)
178 (IN CAMBERS) ORDER DIRECTING PLAINTIFF TO FILE THE DECLARATION OF JESSICA KARP BANSAL by Judge Beverly Reid O'Connell. The Plaintiff cites to the declaration of Jessica Karp Bansal in his MOTION to Certify Class ("Motion") in 2:13-cv-04416 152 . The Court finds no such declaration attached to the Motion. The Court therefore directs the Plaintiff to file the declaration of Jessica Karp Bansal by 5pm, August 24, 2016. THERE IS NO PDF DOCUMENT ASSOCIATED WITH THIS ENTRY. (ah) TEXT ONLY ENTRY (Entered: 08/24/2016)
179 NOTICE OF FILING BANSAL DECLARATION SUPPORTING PLAINTIFFS MOTION FOR CLASS CERTIFICATION re NOTICE OF MOTION AND MOTION to Certify Class in 2:13-cv-04416 152 , NOTICE OF MOTION AND MOTION to Certify Class 151 filed by Plaintiffs Annika Alliksoo, Clemente De La Cerda. (Attachments: # 1 Exhibit A)(Battles, Lindsay) (Entered: 08/24/2016)
180 MINUTES OF PLAINTIFFS' MOTION TO CERTIFY CLASS (In CV 12-9012) 151 ; PLAINTIFFS' MOTION FOR CLASS CERTIFICATION (In CV 13-4416) 152 held before Judge Beverly Reid O'Connell. The matter is taken under submission, a written order to follow. IT IS SO ORDERED. Court Reporter: Myra Ponce. (lom) (Entered: 08/29/2016)
181 EX PARTE APPLICATION for Review of Discovery Dispute filed by Plaintiffs Annika Alliksoo, Clemente De La Cerda, Christian Michel Varela. (Attachments: # 1 Proposed Order)(Bansal, Jessica) (Entered: 09/06/2016)

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182 ORDER GRANTING PLAINTIFFS' EX PARTE REQUEST FOR TELEPHONIC CONFERECE RE: DISCOVERY DISPUTE by Magistrate Judge Frederick F. Mumm: granting 181 Ex Parte Application for Review : Pursuant to Plaintiffs' Ex Parte Request and for good cause shown, a telephonic conference regarding the production of emails sought by Plaintiffs through a third-party subpoena to the Department of Homeland Security is hereby scheduled for September 12, 2016, at 10:00 a.m. Counsel for Plaintiff Gonzalez is to initiate the conference and is directed to contact the Court Clerk at 213/894-1831 for further instruction. (jm) (Entered: 09/07/2016)
183 JOINT STIPULATION to EX PARTE APPLICATION for Review of Discovery Dispute 181 filed by Plaintiffs Annika Alliksoo, Clemente De La Cerda. (Attachments: # 1 Proposed Order)(Bansal, Jessica) (Entered: 09/08/2016)
184 (IN CHAMBERS) ORDER RE PLAINTIFFS' MOTIONS FOR CLASS CERTIFICATION [151, 152] by Judge Beverly Reid O'Connell: Plaintiffs' Motions for Class Certification are GRANTED in part and DENIED in part. See minute order for specifics. (ah) (Entered: 09/09/2016)
185 ORDER GRANTING STIPULATION TO CHANGE TIME OF TELEPHONIC CONFERENCE RE: DISCOVERY DISPUTE by Magistrate Judge Frederick F. Mumm, re Joint Stipulation re Discovery Motion 183 , The hearings originally scheduled have been rescheduled: re Joint Stipulation re Discovery Motion 183 . Pursuant to the parties' stipulation and for good cause shown, the telephonic conference currently scheduled for Monday, September 12, 2016 at 10:00 a.m., see Dkt #182, is rescheduled for Monday, September 12, 2016, at 1:00 p.m. (jm) (Entered: 09/09/2016)
186 MINUTE ORDER IN CHAMBERS by Magistrate Judge Frederick F. Mumm: RULING RE DISCOVERY DISPUTE: On September 9, 2016, plaintiffs filed an ex parte request that the Court hold a telephonic conference to address a dispute that had arisen between plaintiffs and third party Department of Homeland Security ("DHS"). Plaintiffs stated that DHS had refused to produce pursuant to a subpoena certain emails memorializing complaints made by individuals about inaccurate information in a DHS database. (see attached) Given the discovery cutoff date of September 19, 2016, there is simply not enough time for the Court to order further briefing, issue a decision, and order a viable production date prior to the cutoff date. Therefore, plaintiffs' motion for an order compelling production of the emails is DENIED WITHOUT PREJUDICE. (jm) (Entered: 09/13/2016)
187 EX PARTE APPLICATION to Extend Discovery Cut-Off Date to 11/29/2016 filed by Plaintiffs Annika Alliksoo, Clemente De La Cerda.

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(Attachments: # 1 Declaration of Jessica Karp Bansal, # 2 Proposed Order) (Bansal, Jessica) (Entered: 09/14/2016)
188 STIPULATION to Continue Deposition of Non-Party Witness Monica Molinar Due to Current Medical Condition from September 15, 2016 to No later than November 29, 2016 filed by Defendants Leroy D Baca, County of Los Angeles. (Attachments: # 1 Proposed Order)(Clark, Justin) (Entered: 09/15/2016)
189 OPPOSITION to EX PARTE APPLICATION to Extend Discovery CutOff Date to 11/29/2016 187 filed by Objector Department of Homeland Security (DHS). (Attachments: # 1 Declaration Declaration of J. Max Weintraub)(Weintraub, Jacob) (Entered: 09/15/2016)
190 ORDER by Judge Beverly Reid O'Connell: Pursuant to Plaintiffs' Ex Parte Request and for good cause shown, the current discovery deadline of September 19, 2016 is continued until November 29, 2016 solely to permit resolution of an ongoing dispute regarding third-party Department of Homeland Security's response to Plaintiffs' subpoena. See Dkt # 186. This Order does not affect deadlines for discovery other than as they pertain to this particular dispute. 187 (rfi) (Entered: 09/16/2016)
191 EX PARTE APPLICATION to Continue Discovery Cutoff for Limited Purpose of Ascertaining Certain Damages Class Members from 9/19/2016 to a date to be set after determination of liability; Ex Parte to Bifurcate Damages and Classwide Liability Issues in Roy filed by Plaintiffs Annika Alliksoo, Clemente De La Cerda. (Attachments: # 1 Affidavit of Lindsay Battles, # 2 Exhibit 1, # 3 Exhibit 2, # 4 Exhibit 3, # 5 Exhibit 4, # 6 Proposed Order) (Battles, Lindsay) (Entered: 09/19/2016)
192 NOTICE of Entry of RULING to Extend Discovery Deadline (Discovery Matter), re: Order on Motion for Extension of Time to Complete Discovery, 190 , filed by Plaintiffs Annika Alliksoo, Clemente De La Cerda. (Bansal, Jessica) (Entered: 09/20/2016)
193 MINUTE ORDER IN CHAMBERS by Magistrate Judge Frederick F. Mumm: ORDER RE BRIEFING SCHEDULE: The Court hereby orders plaintiffs to file briefing, within ten (10) days of the date of this Order, discussing the probative value of the emails sought by the subpoena. Also within ten (10) days of the date of this Order, DHS shall file briefing discussing any statutory authority preventing disclosure on the basis of privacy concerns. (see attached) Discovery Hearing set for 10/11/2016 10:00 AM before Magistrate Judge Frederick F. Mumm. (jm) (Entered: 09/20/2016)
194 OPPOSITION TO PLAINTIFFS' EX PARTE APPLICATION TO BIFURCATE CLASS DAMAGES ISSUES AND TO EXTEND THE DISCOVERY CUTOFF re: EX PARTE APPLICATION to Continue Discovery Cutoff for Limited Purpose of Ascertaining Certain Damages

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Class Members from 9/19/2016 to a date to be set after determination of liability; Ex Parte to Bifurcate Damages and Classwide Liability Issues in 191 filed by Defendants Leroy D Baca, County of Los Angeles. (Clark, Justin) (Entered: 09/20/2016)
195 REPLY in support EX PARTE APPLICATION to Continue Discovery Cutoff for Limited Purpose of Ascertaining Certain Damages Class Members from 9/19/2016 to a date to be set after determination of liability; Ex Parte to Bifurcate Damages and Classwide Liability Issues in 191 filed by Plaintiffs Annika Alliksoo, Clemente De La Cerda. (Attachments: # 1 Affidavit of Lindsay Battles)(Battles, Lindsay) (Entered: 09/20/2016)
196 ORDER by Judge Beverly Reid O'Connell: Plaintiffs' Ex Parte Application is Hereby GRANTED IN PART. The September 19, 2016 discovery cutoff shall be continued, solely for further discovery related to the ascertainment of remaining class members, until November 29, 2016 191 (rfi) (Entered: 09/21/2016)
197 STIPULATION to Continue DEADLINES FOR BRIEFING AND HEARING OF DISCOVERY DISPUTE Re: Minutes of In Chambers Order/Directive - no proceeding held,,, Set/Reset Hearing,, 193 filed by non-party Department of Homeland Security (DHS). (Attachments: # 1 Proposed Order)(Weintraub, Jacob) (Entered: 09/23/2016)
198 STIPULATION to Continue Trial from February 7, 2017 to September 12, 2017 filed by Plaintiffs Duncan Roy. (Attachments: # 1 Proposed Order)(Battles, Lindsay) (Entered: 09/23/2016)
199 ORDER by Judge Beverly Reid O'Connell, re Stipulation to Continue 198 Jury Trial set for 9/12/2017 AT 08:30 AM before Judge Beverly Reid O'Connell., Pretrial Conference set for 6/26/2017 AT 3:00 PM before Judge Beverly Reid O'Connell. (rfi) (Entered: 09/26/2016)
200 ORDER GRANTING STIPULATION TO CONTINUE DEADLINES FOR BRIEFING AND HEARING OF DISCOVERY DISPUTE by Magistrate Judge Frederick F. Mumm, re Stipulation to Continue, 197 , The hearings originally scheduled have been rescheduled: re Stipulation to Continue, 197 .( Discovery Hearing reset for 10/18/2016 10:00 AM before Magistrate Judge Frederick F. Mumm.) (jm) (Entered: 09/26/2016)
201 MEMORANDUM in Opposition to Production of Documents filed by Objector Department of Homeland Security (DHS). (Weintraub, Jacob) (Entered: 10/07/2016)
202 REQUEST for Review Plaintiffs' Discovery Dispute Brief filed by Plaintiffs Annika Alliksoo, Clemente De La Cerda. (Attachments: # 1 Declaration, # 2 Exhibit #1, # 3 Exhibit #2, # 4 Exhibit #3, # 5 Exhibit #4, # 6 Exhibit #5, # 7 Exhibit #6)(Battles, Lindsay) (Entered: 10/07/2016)

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203 NOTICE OF ERRATA filed by Plaintiffs Annika Alliksoo, Clemente De La Cerda. correcting REQUEST for Review Plaintiffs' Discovery Dispute Brief 202 (Attachments: # 1 Exhibit Plaintiffs' Corrected Discovery Brief)(Battles, Lindsay) (Entered: 10/11/2016)
204 OPPOSITION to REQUEST for Review Plaintiffs' Discovery Dispute Brief 202 filed by Objector Department of Homeland Security (DHS). (Weintraub, Jacob) (Entered: 10/14/2016)
205 REPLY in Support of REQUEST for Review Plaintiffs' Discovery Dispute Brief 202 filed by Plaintiffs Annika Alliksoo, Clemente De La Cerda. (Bansal, Jessica) (Entered: 10/14/2016)
206 MINUTES OF PLAINTIFF'S MOTION TO PRODUCE Hearing held before Magistrate Judge Frederick F. Mumm: Plaintiffs' motion is taken under submission. Court Recorder: CS 10/18/16. (jm) (Entered: 10/21/2016)
207 NOTICE TO PARTIES by District Judge Beverly Reid O'Connell. Effective October 31, 2016, Judge O'Connell will be located at the 1st Street Courthouse, COURTROOM 7C on the 7th floor, located at 350 W. 1st Street, Los Angeles, California 90012. All Court appearances shall be made in Courtroom 7C of the 1st Street Courthouse, and all mandatory chambers copies shall be hand delivered to the judge's mail box outside the Clerk's Office on the 4th floor of the 1st Street Courthouse. The location for filing civil documents in paper format exempted from electronic filing and for viewing case files and other records services remains at the United States Courthouse, 312 North Spring Street, Room G-8, Los Angeles, California 90012. The location for filing criminal documents in paper format exempted from electronic filing remains at Edward R. Roybal Federal Building and U.S. Courthouse, 255 East Temple Street, Room 178, Los Angeles, California 90012. THERE IS NO PDF DOCUMENT ASSOCIATED WITH THIS ENTRY. (rrp) TEXT ONLY ENTRY (Entered: 10/24/2016)
208 STIPULATION for Order SETTING TELEPHONE STATUS CONFERENCE WITH THE MAGISTRATE JUDGE REGARDING THE DEPOSITION OF PLAINTIFF ANNIKA ALLIKSOO AND ISSUES ASSOCIATED THEREWITH filed by DEFENDANTS Leroy D Baca, County of Los Angeles. (Attachments: # 1 Proposed Order)(Clark, Justin) (Entered: 11/15/2016)
209 MINUTES (IN CHAMBERS) ORDER GRANTING IN PART PLAINTIFF'S MOTION TO COMPEL PRODUCTION OF DOCUMENTS BY DHS (DOCKET NOS. 202, 203) by Magistrate Judge Frederick F. Mumm: granting in part 202 203 Request for Review : (see attached) The Court grants the Motion in part and denies it in part as follows: 1. The Motion is DENIED with respect to responsive documents protected by, or containing information protected by, Sections 1367(a)(2)

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and Section 208.6(a). DHS may redact or withhold such documents as necessary to comply with those regulations. 2. The Motion is GRANTED, subject to an appropriate protective order, with respect to responsive documents to which Sections 1255a(c)(5) and 1160(b)(6) apply. 3. The Motion is GRANTED in all other respects. 4. Responsive documents must be produced within 21 days of the date of this order. (jm) (Entered: 11/18/2016)
210 STIPULATION to Continue Deadline for Filing Summary Judgment Motions from 12/19/2016 to 2/17/2017 filed by Plaintiffs Annika Alliksoo, Clemente De La Cerda. (Attachments: # 1 Proposed Order)(Bansal, Jessica) (Entered: 11/30/2016)
211 ORDER by Judge Beverly Reid O'Connell, re Stipulation to Continue. 210 Pursuant to the parties' stipulation and for good cause shown the deadlinefor filing motions for summary judgment shall be continued to February 17, 2017.Oppositions shall be filed by March 24, 2017. Replies shall be filed by April 7,2017. (rfi) (Entered: 12/01/2016)
212 ORDER SETTING TELEPHONIC STATUS CONFERENCE WITH THE MAGISTRATE JUDGE REGARDING THE DEPOSITION OF PLAINTIFF ANNIKA ALLIKSOO AND ISSUES ASSOCIATED THEREWITH by Magistrate Judge Frederick F. Mumm, re Stipulation for Order, 208 : IT IS HEREBY ORDERED that a telephonic conference to discuss issues associated with the deposition of Plaintiff Alliksoo is set for December 16, 2016, at 2:30 p.m. or at another date and time convenient to the Court's calendar. (Counsel Justin Clark to call chambers last after all parties on line) (jm) (Entered: 12/16/2016)
213 ORDER SETTING START TIME OF THE DEPOSITION OF PLAINTIFF ANNIKA ALLIKSOO by Magistrate Judge Frederick F. Mumm : IT IS HEREBY ORDERED that the deposition shall commence at 6:00 a.m. Pacific Standard Time on a date(s) to be scheduled by the Parties. (jm) (Entered: 12/19/2016)
214 Notice of Appearance or Withdrawal of Counsel: for attorney Katherine M Traverso counsel for Plaintiffs Annika Alliksoo, Clemente De La Cerda, Duncan Roy, Christian Michel Varela. KATHERINE TRAVERSO is no longer counsel of record for the aforementioned party in this case for the reason indicated in the G-123 Notice. Filed by Plaintiff Duncan Roy. (Traverso, Katherine) (Entered: 01/03/2017)
215 STIPULATION to Dismiss Plaintiff Annika Alliksoo filed by Plaintiffs Annika Alliksoo. (Attachments: # 1 Proposed Order)(Battles, Lindsay) (Entered: 01/26/2017)
216 ORDER RE STIPULATION AND REQUEST FOR DISMISSA LWITHOUT PREJUDIC EAS TO PLAINTIFF ANNIKA ALLIKSOO 215 by Judge Beverly Reid O'Connell. Pursuant to the parties' stipulation and good cause appearing, Plaintiff Annika Alliksoo is

02/02/2017 02/07/2017 02/22/2017
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hereby DISMISSED as a plaintiff and class representative in this action, without prejudice. (lom) Modified on 1/26/2017 (lom). (Entered: 01/26/2017)
217 Joint STIPULATION to Reschedule TRIAL AND PRETRIAL DEADLINES filed by Federal Defendant Department of Homeland Security (DHS). (Attachments: # 1 Proposed Order)(Weintraub, Jacob) (Entered: 02/02/2017)
218 ORDER GRANTING STIPULATION TO CONTINUE THE TRIAL AND PRETRIAL DEADLINES by Judge Beverly Reid O'Connell.( Jury Trial set for 11/21/2017 at 08:30 AM and Pretrial Conference set for 8/28/2017 at 03:00 PM before Judge Beverly Reid O'Connell.) (jloz) (Entered: 02/07/2017)
219 NOTICE OF MOTION AND MOTION for Partial Summary Judgment as to Judicial determination of probably cause. filed by Plaintiffs Annika Alliksoo, Clemente De La Cerda, Duncan Roy, Christian Michel Varela. Motion set for hearing on 4/17/2017 at 01:30 PM before Judge Beverly Reid O'Connell. (Attachments: # 1 Memorandum of Points & Authorities in Support of Gonzalez Plaintiffs' Motion for Partial Summary Judgment, # 2 Proposed Order Granting Gonzalez Plaintiffs' Motion for Partial Summary Judgment) (Pasquarella, Jennifer) (Entered: 02/22/2017)
220 STATEMENT of UNCONTROVERTED FACTS AND CONCLUSIONS OF LAW IN SUPPORT OF GONZALEZ PLAINTIFFS MOTION FOR PARTIAL SUMMARY JUDGMENT NOTICE OF MOTION AND MOTION for Partial Summary Judgment as to Judicial determination of probably cause. 219 filed by Plaintiffs Annika Alliksoo, Clemente De La Cerda, Duncan Roy, Christian Michel Varela. (Pasquarella, Jennifer) (Entered: 02/22/2017)
221 DECLARATION of Jennifer Paquarella in support of NOTICE OF MOTION AND MOTION for Partial Summary Judgment as to Judicial determination of probably cause. 219 filed by Plaintiffs Annika Alliksoo, Clemente De La Cerda, Duncan Roy, Christian Michel Varela. (Attachments: # 1 Exhibit A, # 2 Exhibit B, # 3 Exhibit C, # 4 Exhibit D, # 5 Exhibit E, # 6 Exhibit F, # 7 Exhibit G, # 8 Exhibit H, # 9 Exhibit I, # 10 Exhibit J, # 11 Exhibit K)(Pasquarella, Jennifer) (Entered: 02/22/2017)
222 DECLARATION of Caitlin Bellis in support of NOTICE OF MOTION AND MOTION for Partial Summary Judgment as to Judicial determination of probably cause. 219 filed by Plaintiffs Annika Alliksoo, Clemente De La Cerda, Duncan Roy, Christian Michel Varela. (Pasquarella, Jennifer) (Entered: 02/22/2017)
223 STIPULATION to Continue Hearing on Gonzalez Plaintiffs' Motion for Partial Summary Judgment from April 17, 2017 to April 24, 2017 filed by Federal Defendants Department of Homeland Security (DHS).

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(Attachments: # 1 Proposed Order)(Weintraub, Jacob) (Entered: 03/14/2017)
224 ORDER by Judge Beverly Reid O'Connell, re Stipulation to Continue, 223 Based on stipulation of the parties and for good cause shown, it is hereby ORDERED: 1.The deadline for Defendants to file their opposition to Plaintiffs' motion for partial summary judgment shall remain March 27, 2017. 2. Plaintiffs' reply shall be filed by April 10, 2017. 3. The hearing date for Plaintiffs' motion shall be continued from April 17, 2017 until April 24, 2017 at 1:30 pm (rfi) (Entered: 03/15/2017)
225 MEMORANDUM in Opposition to NOTICE OF MOTION AND MOTION for Partial Summary Judgment as to Judicial determination of probably cause. 219 filed by Objector Department of Homeland Security (DHS). (Attachments: # 1 STATEMENT OF UNCONTROVERTED FACTS AND CONCLUSIONS OF LAW)(Weintraub, Jacob) (Entered: 03/27/2017)
226 STIPULATION to Continue Deadline for Filing Summary Judgement Motions from 4/18/17 to 5/16/17 filed by Plaintiffs Annika Alliksoo, Clemente De La Cerda, Duncan Roy, Christian Michel Varela. (Attachments: # 1 Proposed Order)(Pasquarella, Jennifer) (Entered: 04/10/2017)
227 NOTICE OF MOTION AND MOTION to Exceed Page Limitation for Plaintiffs' Reply in Support of Motion for Partial Summary Judgement [Brief Filed Concurrently Herewith] filed by Plaintffs Annika Alliksoo, Clemente De La Cerda, Duncan Roy, Christian Michel Varela. (Attachments: # 1 Plaintiffs' Reply in Support of Motion for Partial Summary Judgement, # 2 Proposed Order) (Pasquarella, Jennifer) (Entered: 04/10/2017)
228 NOTICE OF NON-OPPOSITION Stipulation to Continue, 226 filed by Defendants Leroy D Baca, County of Los Angeles. (Clark, Justin) (Entered: 04/11/2017)
229 ORDER by Judge Beverly Reid O'Connell, re Stipulation to Continue, 226 Good cause having been shown in the parties Stipulation to Continue Deadlinefor Filing Summary Judgment Motions, the stipulation is hereby GRANTED.The deadline for filing motions for partial summary judgment shall becontinued to May 16, 2017. Oppositions shall be filed by June 20, 2017. Repliesshall be filed by July 7, 2017.IT IS SO ORDERED. (rfi) (Entered: 04/12/2017)
230 ORDER by Judge Beverly Reid O'Connell: Good cause having been shown in Plaintiffs Unopposed Motion for Leave to File Brief in Excess of Page Limit, the Motion is hereby GRANTED 227 (rfi) (Entered: 04/12/2017)

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231 MINUTES OF MOTION HEARING Hearing held before Judge Beverly Reid O'Connell: re: GONZALEZ PLAINTIFFS' MOTION FOR PARTIAL SUMMARY JUDGMENT (filed 2/22/2017) 219 . Court questions counsel as stated in court and on the record on the motion and invites counsel to present their oral arguments. Arguments by counsel are heard. The matter is taken under submission, a written order to follow. IT IS SO ORDERED. Court Reporter: Myra Ponce. (rfi) (Entered: 04/25/2017)
232 STIPULATION to Continue Expert Disclosure Deadline from May 9, 2017 to July 18, 2017 filed by Plaintiffs Clemente De La Cerda. (Attachments: # 1 Proposed Order)(Battles, Lindsay) (Entered: 04/26/2017)
233 ORDER Re Stipulation for Continuance of Expert Disclosure Deadline 232 by Judge Beverly Reid O'Connell that the expert disclosure deadline is continued from 5/9/2017 to 7/18/2017. (jp) (Entered: 04/26/2017)
234 TRANSCRIPT ORDER as to Plaintiff Annika Alliksoo, Clemente De La Cerda, Duncan Roy, Christian Michel Varela for Court Reporter. Transcript preparation will not begin until payment has been satisfied with the court reporter. (Pasquarella, Jennifer) (Entered: 05/03/2017)
235 TRANSCRIPT for proceedings held on 4/24/2017 at 2:11 p.m. Court Reporter/Electronic Court Recorder: Myra L. Ponce, CSR, RDR, CRR, email address myraponce@sbcglobal.net. Transcript may be viewed at the court public terminal or purchased through the Court Reporter/Electronic Court Recorder before the deadline for Release of Transcript Restriction. After that date it may be obtained through PACER. Notice of Intent to Redact due within 7 days of this date. Redaction Request due 5/31/2017. Redacted Transcript Deadline set for 6/12/2017. Release of Transcript Restriction set for 8/8/2017. (Ponce, Myra) (Entered: 05/10/2017)
236 NOTICE OF FILING TRANSCRIPT filed for proceedings 4/24/2017 at 2:11 p.m. re Transcript 235 THERE IS NO PDF DOCUMENT ASSOCIATED WITH THIS ENTRY. (Ponce, Myra) TEXT ONLY ENTRY (Entered: 05/10/2017)
237 APPLICATION to file document Ex. 1 In Support of Plaintiffs' Motion for Summary Adjudication under seal filed by Plaintiff Clemente De La Cerda. (Attachments: # 1 Proposed Order, # 2 Redacted Document Ex. 1)(Battles, Lindsay) (Entered: 05/15/2017)
238 SEALED DECLARATION IN SUPPORT OF APPLICATION to file document Ex. 1 In Support of Plaintiffs' Motion for Summary Adjudication under seal 237 filed by Plaintiff Clemente De La Cerda. (Attachments: # 1 Unredacted Document Ex. 1)(Battles, Lindsay) (Entered: 05/15/2017)

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239 NOTICE OF MOTION AND MOTION for Partial Summary Judgment as to Plaintiffs' Statutory and Probable Cause Subclasses , NOTICE OF MOTION AND MOTION to Dismiss for Lack of Jurisdiction filed by Federal Defendants Department of Homeland Security (DHS). Motion set for hearing on 7/24/2017 at 01:30 PM before Judge Beverly Reid O'Connell. (Attachments: # 1 Memorandum, # 2 Proposed Order, # 3 Declaration, # 4 Exhibit Demore Feb 10, 2016 Depo Transcript, # 5 Exhibit Demore Dec 2, 2015 Depo Transcript, # 6 Exhibit Rapp March 10, 2016 Depo Transcript, # 7 Exhibit Hamm March 16, 2016 Depo Transcript, # 8 Statement of Uncontroverted Facts and Conclusion of Law) (Weintraub, Jacob) (Entered: 05/16/2017)
240 NOTICE OF MOTION AND MOTION for Summary Adjudication as to Liability Issues filed by Plaintiffs Clemente De La Cerda. Motion set for hearing on 7/24/2017 at 01:30 PM before Judge Beverly Reid O'Connell. (Attachments: # 1 Declaration Lindsay Battles, # 2 Exhibit A, # 3 Exhibit B, # 4 Exhibit C, # 5 Exhibit D, # 6 Exhibit E, # 7 Exhibit F, # 8 Exhibit G, # 9 Exhibit H, # 10 Exhibit I, # 11 Exhibit J, # 12 Exhibit K, # 13 Exhibit L, # 14 Exhibit M, # 15 Exhibit N, # 16 Exhibit O, # 17 Exhibit P, # 18 Exhibit Q, # 19 Exhibit R, # 20 Exhibit S, # 21 Exhibit T, # 22 Exhibit U, # 23 Exhibit V, # 24 Exhibit W, # 25 Exhibit X, # 26 Exhibit Y, # 27 Exhibit Z, # 28 Exhibit BB, # 29 Exhibit CC, # 30 Exhibit DD, # 31 Declaration Aurelio Rodriguez, # 32 Declaration Xanadu Copo, # 33 Declaration Emilia Flores, # 34 Declaration Alejandro Delgado, # 35 Declaration Mike Gradilla, # 36 Declaration Alec Rose, # 37 Declaration Brendan Hamme, # 38 Declaration James Kallas, # 39 Declaration Lauro Jimenez, # 40 Declaration Melissa Keaney, # 41 Declaration Morris de Mayo, # 42 Declaration Rocio Ramirez, # 43 Declaration Liz Lopresti, # 44 Declaration) (Battles, Lindsay) (Entered: 05/16/2017)
241 PLAINTIFFS' STATEMENT OF UNCONTROVERTED FACTS AND CONCLUSIONS OF LAW IN SUPPORT OF PLAINTIFFS' MOTION FOR SUMMARY ADJUDICATION RE LIABILITY ISSUES re NOTICE OF MOTION AND MOTION for Summary Adjudication as to Liability Issues 240 filed by Plaintiff Clemente De La Cerda. (Battles, Lindsay) (Entered: 05/16/2017)
242 NOTICE OF MOTION AND MOTION for Summary Judgment as to Remaning Claims of Plaintiffs Alain Martinez-Perez and Clemente De LaCerda Pursuant to Federal Rules of Civil Procedure Rule 56 filed by Defendants Leroy D Baca, County of Los Angeles. Motion set for hearing on 7/24/2017 at 01:30 PM before Judge Beverly Reid O'Connell. (Attachments: # 1 Proposed Judgment) (Clark, Justin) (Entered: 05/16/2017)
243 NOTICE OF LODGING filed DEFENDANTS COUNTY OF LOS ANGELES AND LEROY D. BACAS SEPARATE STATEMENT OF

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UNCONTROVERTED FACTS AND CONCLUSIONS OF LAW re NOTICE OF MOTION AND MOTION for Summary Judgment as to Remaning Claims of Plaintiffs Alain Martinez-Perez and Clemente De LaCerda Pursuant to Federal Rules of Civil Procedure Rule 56 242 (Attachments: # 1 Defendants County of Los Angeles and Leroy D. Baca's Seperate Statement of Uncontroverted Facts and Law)(Clark, Justin) (Entered: 05/16/2017)
244 DECLARATION of Ralph Feroli; Greg Sivard; Joanne Sharp; Justin W. Clark in Support of NOTICE OF MOTION AND MOTION for Summary Judgment as to Remaning Claims of Plaintiffs Alain Martinez-Perez and Clemente De LaCerda Pursuant to Federal Rules of Civil Procedure Rule 56 242 filed by Defendants Leroy D Baca, County of Los Angeles. (Attachments: # 1 Exhibit A-P, # 2 Exhibit Q-U, # 3 Exhibit V-X, # 4 Exhibit Y-Z, # 5 Exhibit AA-EE)(Clark, Justin) (Entered: 05/16/2017)
245 APPLICATION to file document Exhibit V, W, X, AA and BB to MSJ under seal filed by Defendants Leroy D Baca, County of Los Angeles. (Attachments: # 1 Proposed Order, # 2 Exhibit V, # 3 Exhibit W, # 4 Exhibit X, # 5 Exhibit AA, # 6 Exhibit BB)(Clark, Justin) (Entered: 05/16/2017)
246 SEALED DECLARATION IN SUPPORT OF APPLICATION to file document Exhibit V, W, X, AA and BB to MSJ under seal 245 filed by Defendants Leroy D Baca, County of Los Angeles. (Attachments: # 1 Exhibit V, # 2 Exhibit W, # 3 Exhibit X, # 4 Exhibit AA, # 5 Exhibit BB)(Clark, Justin) (Entered: 05/16/2017)
247 Second NOTICE OF MOTION AND MOTION for Partial Summary Judgment filed by Plaintiffs Annika Alliksoo, Clemente De La Cerda, Duncan Roy, Christian Michel Varela. Motion set for hearing on 7/24/2017 at 01:30 PM before Judge Beverly Reid O'Connell. (Attachments: # 1 Memorandum, # 2 Proposed Order) (Pasquarella, Jennifer) (Entered: 05/16/2017)
248 STATEMENT of Uncontroverted Facts and Conclusions of Law Second NOTICE OF MOTION AND MOTION for Partial Summary Judgment 247 filed by Plaintiffs Annika Alliksoo, Clemente De La Cerda, Duncan Roy, Christian Michel Varela. (Pasquarella, Jennifer) (Entered: 05/16/2017)
249 DECLARATION of Jennifer Pasquarella in Support of Second NOTICE OF MOTION AND MOTION for Partial Summary Judgment 247 filed by Plaintiffs Annika Alliksoo, Clemente De La Cerda, Duncan Roy, Christian Michel Varela. (Attachments: # 1 Exhibits 1-36, # 2 Exhibits 37-56)(Pasquarella, Jennifer) (Entered: 05/16/2017)
250 EX PARTE APPLICATION to file document Exhibits to Pasquarella Decl. ISO MSJ; Poon Decl. & Exhibits ISO MSJ under seal filed by

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Plaintiffs Annika Alliksoo, Clemente De La Cerda, Duncan Roy, Christian Michel Varela. (Attachments: # 1 Proposed Order)(Pasquarella, Jennifer) (Entered: 05/16/2017)
251 SEALED DECLARATION IN SUPPORT OF EX PARTE APPLICATION to file document Exhibits to Pasquarella Decl. ISO MSJ; Poon Decl. & Exhibits ISO MSJ under seal 250 filed by Plaintiffs Annika Alliksoo, Clemente De La Cerda, Duncan Roy. (Attachments: # 1 Declaration of Jennifer Poon in Support of Gonzalez Plaintiffs' Second Motion for Partial Summary Judgement, # 2 Exhibits 1a-1c to Poon Decl., # 3 Exhibits 2a-2c to Poon Decl., # 4 Exhibits 3a-6b to Poon Decl., # 5 Exhibits to Pasquarella Declaration in Support of Gonzalez Plaintiffs' Second Motion for Partial Summary Judgement (Dkt. 249))(Pasquarella, Jennifer) (Entered: 05/16/2017)
252 DECLARATION of Susan B. Long in Support of Second NOTICE OF MOTION AND MOTION for Partial Summary Judgment 247 filed by Plaintiffs Annika Alliksoo, Clemente De La Cerda, Duncan Roy, Christian Michel Varela. (Pasquarella, Jennifer) (Entered: 05/16/2017)
253 REQUEST FOR JUDICIAL NOTICE re Second NOTICE OF MOTION AND MOTION for Partial Summary Judgment 247 filed by Plaintiffs Annika Alliksoo, Clemente De La Cerda, Duncan Roy, Christian Michel Varela. (Attachments: # 1 Exhibits A-N, # 2 Proposed Order)(Pasquarella, Jennifer) (Entered: 05/16/2017)
254 ORDER by Judge Beverly Reid O'Connell: granting 237 APPLICATION to Seal Document. Re: Sealed Declaration in Support Declaration, 238 (rfi) (Entered: 05/19/2017)
255 ORDER by Judge Beverly Reid O'Connell: granting 245 APPLICATION to Seal Document. Re: Sealed Declaration in Support Declaration, 246 (rfi) (Entered: 05/19/2017)
256 ORDER by Judge Beverly Reid O'Connell: granting 250 EX PARTE APPLICATION to Seal Document. Re: Sealed Declaration in Support Declaration,, 251 (rfi) (Entered: 05/19/2017)
257 SEALED DOCUMENT Exhibits V, W, X, AA, BB in Support of Defendants' Motion for Summary Judgment re NOTICE OF MOTION AND MOTION for Summary Judgment as to Remaning Claims of Plaintiffs Alain Martinez-Perez and Clemente De LaCerda Pursuant to Federal Rules of Civil Procedure Rule 56 242 , Declaration (Motion related), 244 , Order on Motion for Leave to File Document Under Seal 255 filed by Defendants Leroy D Baca, County of Los Angeles. (Attachments: # 1 Exhibit V, # 2 Exhibit W, # 3 Exhibit X, # 4 Exhibit AA, # 5 Exhibit BB)(Clark, Justin) (Entered: 05/19/2017)
258 SEALED DOCUMENT Ex. 1 In Support of Plaintiffs' Motion for Summary Adjudication re NOTICE OF MOTION AND MOTION for

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Summary Adjudication as to Liability Issues 240 , Order on Motion for Leave to File Document Under Seal 254 filed by Plaintiff Clemente De La Cerda.(Battles, Lindsay) (Entered: 05/19/2017)
259 JOINDER in NOTICE OF MOTION AND MOTION for Partial Summary Judgment as to Plaintiffs' Statutory and Probable Cause Subclasses NOTICE OF MOTION AND MOTION to Dismiss for Lack of Jurisdiction 239 filed by Defendants Leroy D Baca, County of Los Angeles. (Clark, Justin) (Entered: 05/22/2017)
260 SEALED DOCUMENT Declaration of Jennifer Poon in Support of Gonzalez Plaintiffs' Second Motion for Partial Summary Judgement; Exhibits re Order on Motion for Leave to File Document Under Seal 256 , Second NOTICE OF MOTION AND MOTION for Partial Summary Judgment 247 filed by Plaintiffs Annika Alliksoo, Clemente De La Cerda, Duncan Roy, Christian Michel Varela. (Attachments: # 1 Exhibits 1a-1c, # 2 Exhibits 2a-2c, # 3 Exhibits 3a-6b, # 4 Proof of Service)(Pasquarella, Jennifer) (Entered: 05/23/2017)
261 SEALED DOCUMENT Exhibits to Declaration of Jennifer Pasquarella in Support of Gonzalez Plaintiffs' Second Motion for Partial Summary Judgement re Second NOTICE OF MOTION AND MOTION for Partial Summary Judgment 247 , Order on Motion for Leave to File Document Under Seal 256 filed by Plaintiffs Annika Alliksoo, Clemente De La Cerda, Duncan Roy, Christian Michel Varela. (Attachments: # 1 Proof of Service)(Pasquarella, Jennifer) (Entered: 05/23/2017)
262 STIPULATION to Continue Hearing on Summary Adjudication, ADR Deadline and Vacate Remaining Pretrial Deadlines filed by Plaintiffs Annika Alliksoo, Clemente De La Cerda. (Attachments: # 1 Proposed Order)(Battles, Lindsay) (Entered: 06/05/2017)
263 Joint STIPULATION to Continue SUMMARY JUDGMENT OPPOSITION AND REPLY DEADLINES from June 20 and July 7 to July 7 and 21 Re: Order, 229 filed by Federal Defendants Department of Homeland Security (DHS). (Attachments: # 1 Proposed Order)(Weintraub, Jacob) (Entered: 06/07/2017)
264 MINUTES (IN CHAMBERS) by Judge Beverly Reid O'Connell: ORDER RE PLAINTIFFS' MOTION FOR PARTIAL SUMMARY JUDGMENT. The Court DENIES Plaintiffs' Motion and, instead, GRANTS summary judgment in favor of Defendants. IT IS SO ORDERED.: 219 (rfi) (Entered: 06/12/2017)
265 ORDER by Judge Beverly Reid O'Connell, re Stipulation to Continue, 263 Based on stipulation of the parties and for good cause shown, it is herebyORDERED: 1. The deadline for filing oppositions to motions for [partial] summaryjudgment shall be July 7, 2017. 2. The parties shall file their reply briefs no later than July 21, 2017. (rfi) (Entered: 06/12/2017)

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266 ORDER by Judge Beverly Reid O'Connell, re Stipulation to Continue 262 The parties' Stipulation to Continue the Hearing on Summary Adjudicationand Continue the ADR Deadline is hereby GRANTED. The ADR conference deadline of June 6, 2017 is continued. ADR proceedings must be completed with 45 days of the issuance of this Courts decision on the pending summary judgment/ adjudication motions. All pretrial deadlines are continued in this matter as set forth in the attached schedule. Within two weeks of completing ADR proceedings, all parties will submit status reports addressing the status of settlement negotiations and file a Stipulation and Proposed Order addressing the class notice procedure, if necessary. The July 24, 2017 hearing date for pending motions for summary adjudication is continued to August 28, 2017 at 1:30 pm. IT IS SO ORDERED. The deadlines and hearings originally scheduled have been rescheduled. Discovery cut-off 11/13/2017., Last date for hearing on motions is 11/20/2017., Motions in Limine to be filed by 12/18/2017., Proposed Pretrial Order due by 11/27/2017., Jury Trial set for 1/23/2018 at 8:30 AM before Judge Beverly Reid O'Connell., Pretrial Conference set for 12/11/2017 at 03:00 PM before Judge Beverly Reid O'Connell. (rfi) (Entered: 06/14/2017)
267 STIPULATION for Order FOR CONTINUANCE OF EXPERT DISCLOSURE DEADLINE IN GONZALEZ filed by Plaintiffs Annika Alliksoo, Clemente De La Cerda, Duncan Roy, Christian Michel Varela. (Attachments: # 1 Proposed Order)(Pasquarella, Jennifer) (Entered: 06/26/2017)
268 ORDER by Judge Beverly Reid O'Connell, re Stipulation for Order 267 Pursuant to the parties' stipulation and good cause appearing, the expert disclosure deadline in Gonzalez is continued from July 18, 2017 to September 11, 2017. (rfi) (Entered: 06/29/2017)
269 (Attorney Cody H Wofsy added to party Annika Alliksoo(pty:pla), Attorney Cody H Wofsy added to party Clemente De La Cerda(pty:pla), Attorney Cody H Wofsy added to party Duncan Roy(pty:pla), Attorney Cody H Wofsy added to party Christian Michel Varela(pty:pla))(Wofsy, Cody) (Entered: 06/30/2017)
270 NOTICE TO FILER OF DEFICIENCIES in Electronically Filed Documents RE: Notice of Appearance or Withdrawal of Counsel (G123), 269 . The following error(s) was found: Other error(s) with document(s) are specified below In response to this notice the court may order (1) an amended or correct document to be filed (2) the document stricken or (3) take other action as the court deems appropriate. You need not take any action in response to this notice unless and until the court directs you to do so. (ak) (Entered: 07/03/2017)
271 STIPULATION to Exceed Page Limitation as to Plaintiffs' and Defendants' Oppositions to Motions for Summary Judgment/Adjudication in Roy v. County of Los Angeles filed by Plaintiffs Annika Alliksoo,

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Clemente De La Cerda, Duncan Roy. (Attachments: # 1 Proposed Order)(Battles, Lindsay) (Entered: 07/07/2017)
272 OPPOSITION to Second NOTICE OF MOTION AND MOTION for Partial Summary Judgment 247 filed by Objector Department of Homeland Security (DHS). (Attachments: # 1 Opposition to Plaintiffs' Statement of Facts, # 2 Declaration Weintraub Declaration, # 3 Exhibit Excerpts of Hamm Depo, March 16, 2016, # 4 Exhibit Excerpts of Hamm Depo, March 17, 2016, # 5 Exhibit Excerpts of Schichel Depo, March 4, 2016, # 6 Exhibit Excerpts of Rapp Dep, March 10, 2016)(Weintraub, Jacob) (Entered: 07/07/2017)
273 MEMORANDUM in Opposition to NOTICE OF MOTION AND MOTION for Summary Adjudication as to Liability Issues 240 filed by Defendants Leroy D Baca, County of Los Angeles. (Clark, Justin) (Entered: 07/07/2017)
274 DECLARATION of Justin W. Clark in Support of Defendants' Opposition to NOTICE OF MOTION AND MOTION for Summary Adjudication as to Liability Issues 240 filed by Defendants Leroy D Baca, County of Los Angeles. (Attachments: # 1 Exhibit A)(Clark, Justin) (Entered: 07/07/2017)
275 OPPOSITION TO SEPARATE STATEMENT in Support of Defendants' Opposition to re: NOTICE OF MOTION AND MOTION for Summary Adjudication as to Liability Issues 240 filed by Defendants Leroy D Baca, County of Los Angeles. (Clark, Justin) (Entered: 07/07/2017)
276 EVIDENTIARY OBJECTIONS in Support of Defendants' Opposition re: NOTICE OF MOTION AND MOTION for Summary Adjudication as to Liability Issues 240 filed by Defendants Leroy D Baca, County of Los Angeles. (Clark, Justin) (Entered: 07/07/2017)
277 REQUEST FOR JUDICIAL NOTICE in Support of Defendants' Opposition to Plaintiffs' Motion for Summary Adjudication Regarding Liability Issues Dkt. #240 filed by Defendants Leroy D Baca, County of Los Angeles. (Attachments: # 1 Exhibit 1)(Clark, Justin) (Entered: 07/07/2017)
278 MEMORANDUM in Opposition to NOTICE OF MOTION AND MOTION for Summary Judgment as to Remaning Claims of Plaintiffs Alain Martinez-Perez and Clemente De LaCerda Pursuant to Federal Rules of Civil Procedure Rule 56 242 filed by Plaintiffs Annika Alliksoo, Clemente De La Cerda, Duncan Roy. (Attachments: # 1 Declaration, # 2 Exhibit EE, # 3 Exhibit FF, # 4 Exhibit GG, # 5 Exhibit HH, # 6 Declaration Brian Kriegler)(Battles, Lindsay) (Entered: 07/07/2017)
279 STATEMENT of Plaintiffs' Statement of Genuine Disputes in Opposition to Defendants' Motion for Summary Judgment NOTICE OF MOTION AND MOTION for Summary Judgment as to Remaning Claims of

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Plaintiffs Alain Martinez-Perez and Clemente De LaCerda Pursuant to Federal Rules of Civil Procedure Rule 56 242 filed by Plaintiffs Annika Alliksoo, Clemente De La Cerda, Duncan Roy. (Battles, Lindsay) (Entered: 07/07/2017)
280 MEMORANDUM in Opposition to NOTICE OF MOTION AND MOTION for Partial Summary Judgment as to Plaintiffs' Statutory and Probable Cause Subclasses NOTICE OF MOTION AND MOTION to Dismiss for Lack of Jurisdiction 239 filed by Plaintiffs Annika Alliksoo, Clemente De La Cerda, Duncan Roy, Christian Michel Varela. (Pasquarella, Jennifer) (Entered: 07/07/2017)
281 STATEMENT of Genuine Issues of Material Fact in Support of Plantiffs' Opposition to NOTICE OF MOTION AND MOTION for Partial Summary Judgment as to Plaintiffs' Statutory and Probable Cause Subclasses NOTICE OF MOTION AND MOTION to Dismiss for Lack of Jurisdiction 239 filed by Plaintiffs Annika Alliksoo, Clemente De La Cerda, Duncan Roy, Christian Michel Varela. (Pasquarella, Jennifer) (Entered: 07/07/2017)
282 APPLICATION to file document Poon Decl & Exhibits ISO Plaintiffs' Opposition to Defendants' MSJ; Exhibits to Karp Bansal Decl ISO Plaintiffs' Opposition to Defendants' MSJ under seal filed by Plaintiffs Annika Alliksoo, Clemente De La Cerda, Duncan Roy, Christian Michel Varela. (Attachments: # 1 Proposed Order)(Pasquarella, Jennifer) (Entered: 07/07/2017)
283 SEALED DECLARATION IN SUPPORT OF APPLICATION to file document Poon Decl & Exhibits ISO Plaintiffs' Opposition to Defendants' MSJ; Exhibits to Karp Bansal Decl ISO Plaintiffs' Opposition to Defendants' MSJ under seal 282 filed by Plaintiffs Annika Alliksoo, Clemente De La Cerda, Duncan Roy, Christian Michel Varela. (Attachments: # 1 Declaration of Jennifer Poon, # 2 Exhibits 1a-6e to Jennifer Poon's Declaration, # 3 Exhibit C to Jessica Karp Bansal's Declaration, # 4 Proof of Service)(Pasquarella, Jennifer) (Entered: 07/07/2017)
284 DECLARATION of Jessica Karp Bansal in Support of Gonzalez Plaintiffs' Opposition to Defendants' Motion for Partial Summary Judgment filed by Plaintiffs Annika Alliksoo, Clemente De La Cerda, Duncan Roy, Christian Michel Varela. (Attachments: # 1 Exhibit A, # 2 Exhibit B)(Pasquarella, Jennifer) (Entered: 07/07/2017)
285 DECLARATION of Laura Kent Monning in Support of Gonzalez Plaintiffs' Opposition to Defendants' Motion for Partial Summary Judgment filed by Plaintiffs Annika Alliksoo, Clemente De La Cerda, Duncan Roy, Christian Michel Varela. (Pasquarella, Jennifer) (Entered: 07/07/2017)

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286 DECLARATION of Patricia M. Corrales in Support of Gonzalez Plaintiffs' Opposition to Defendants' Motion for Partial Summary Judgment filed by Plaintiffs Annika Alliksoo, Clemente De La Cerda, Duncan Roy, Christian Michel Varela. (Attachments: # 1 Patricia Corrales Resume)(Pasquarella, Jennifer) (Entered: 07/07/2017)
287 DECLARATION of Roxana C. Bacon in Support of Gonzalez Plaintiffs' Opposition to Defendants' Motion for Partial Summary Judgment filed by Plaintiffs Annika Alliksoo, Clemente De La Cerda, Duncan Roy, Christian Michel Varela. (Attachments: # 1 Roxana Bacon CV)(Pasquarella, Jennifer) (Entered: 07/07/2017)
288 DECLARATION of Rachel Winkler in Support of Gonzalez Plaintiffs' Opposition to Defendants' Motion for Partial Summary Judgment filed by Plaintiffs Annika Alliksoo, Clemente De La Cerda, Duncan Roy, Christian Michel Varela. (Attachments: # 1 Exhibit A)(Pasquarella, Jennifer) (Entered: 07/07/2017)
289 ORDER by Judge Beverly Reid O'Connell, re Stipulation to Exceed Page Limitation, 271 Pursuant to the parties' stipulation and good cause appearing, the parties request to file opposition briefs regarding the parties motions for summary judgment not to exceed 28 pages is hereby GRANTED.IT IS SO ORDERED. (rfi) (Entered: 07/10/2017)
290 MINUTES (IN CHAMBERS) by Judge Beverly Reid O'Connell: granting 282 APPLICATION to Seal Document. Re: Sealed Declaration in Support Declaration,, 283 (rfi) (Entered: 07/10/2017)
291 SEALED DOCUMENT (Declaration of Jennifer Poon ISO Plaintiffs' Opposition to Defendants' MSJ; Exhibits 1a-6e) re Order on Motion for Leave to File Document Under Seal 290 filed by Plaintiffs Annika Alliksoo, Clemente De La Cerda, Duncan Roy, Christian Michel Varela. (Attachments: # 1 Jennifer Poon Exhibits 1a-6e, # 2 Proof of Service)(Pasquarella, Jennifer) (Entered: 07/11/2017)
292 SEALED DOCUMENT (Exhibit C to Declaration of Jessica Bansal ISO Plaintiffs' Opposition to Defendants' MSJ) re Order on Motion for Leave to File Document Under Seal 290 filed by Plaintiffs Annika Alliksoo, Clemente De La Cerda, Duncan Roy, Christian Michel Varela. (Attachments: # 1 Proof of Service)(Pasquarella, Jennifer) (Entered: 07/11/2017)
293 APPLICATION of Non-Resident Attorney Spencer E.W. Amdur to Appear Pro Hac Vice on behalf of Plaintiffs Annika Alliksoo, Clemente De La Cerda, Duncan Roy, Christian Michel Varela (Pro Hac Vice Fee Fee Paid, Receipt No. 0973-20172706) filed by Plaintiffs Annika Alliksoo, Clemente De La Cerda, Duncan Roy, Christian Michel Varela. (Attachments: # 1 Proposed Order) (Pasquarella, Jennifer) (Entered: 07/13/2017)

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294 ORDER ON APPLICATION OF NON-RESIDENT ATTORNEY TO APPEAR IN A SPECIFIC CASE PRO HAC VICE by Judge Beverly Reid O'Connell: granting 293 Non-Resident Attorney Spencer E.W. Amdur APPLICATION to Appear Pro Hac Vice on behalf of Plaintiffs Annika Alliksoo, Clemente De La Cerda, Duncan Roy, Christian Michel Varela, designating Jennifer L Pasquarella as local counsel. (jp) (Entered: 07/14/2017)
295 STIPULATION to Exceed Page Limitation as to Parties' Reply Briefs re Motions for Summary Judgment filed by Defendants and Third Parties Leroy D Baca, County of Los Angeles. (Attachments: # 1 Proposed Order)(Clark, Justin) (Entered: 07/21/2017)
296 REPLY in Support NOTICE OF MOTION AND MOTION for Partial Summary Judgment as to Plaintiffs' Statutory and Probable Cause Subclasses NOTICE OF MOTION AND MOTION to Dismiss for Lack of Jurisdiction 239 filed by Objector Department of Homeland Security (DHS). (Attachments: # 1 Declaration, # 2 Exhibit Excerpts from Kaufman Dep. Transcript, June 4, 2013 (Moreno), # 3 Exhibit Excerpts from Rapp Dep. Transcript, March 11, 2016, # 4 Exhibit Excerpts from Rapp Dep. Transcript, March 10, 2016, # 5 Exhibit Excerpts from Hamm Dep. Transcript, March 16, 2016, # 6 Exhibit Excerpts from Hamm Dep. Transcript, March 17, 2016, # 7 Exhibit Excerpts from Schichel Dep. Transcript, March 4, 2016, # 8 Opp. to Plaintiffs' Statement of Law and Facts, # 9 Objections to Plaintiffs' Expert Declarations)(Weintraub, Jacob) (Entered: 07/21/2017)
297 REPLY in support of Second NOTICE OF MOTION AND MOTION for Partial Summary Judgment 247 filed by Plaintiffs Annika Alliksoo, Clemente De La Cerda, Duncan Roy, Christian Michel Varela. (Attachments: # 1 Plaintiffs' Reply to Defendants' Statement of Genuine Issues)(Pasquarella, Jennifer) (Entered: 07/21/2017)
298 REPLY in Support of NOTICE OF MOTION AND MOTION for Summary Judgment as to Remaning Claims of Plaintiffs Alain MartinezPerez and Clemente De LaCerda Pursuant to Federal Rules of Civil Procedure Rule 56 242 filed by Defendants Leroy D Baca, County of Los Angeles. (Clark, Justin) (Entered: 07/21/2017)
299 EVIDENTIARY OBJECTION IN SUPPORT OF re: NOTICE OF MOTION AND MOTION for Summary Judgment as to Remaning Claims of Plaintiffs Alain Martinez-Perez and Clemente De LaCerda Pursuant to Federal Rules of Civil Procedure Rule 56 242 Re Reply to Plaintiffs' Opposition to MSJ filed by Defendants Leroy D Baca, County of Los Angeles. (Clark, Justin) (Entered: 07/21/2017)
300 DECLARATION of Greg Sivard in Support of NOTICE OF MOTION AND MOTION for Summary Judgment as to Remaning Claims of Plaintiffs Alain Martinez-Perez and Clemente De LaCerda Pursuant to

07/21/2017
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Federal Rules of Civil Procedure Rule 56 242 filed by Defendants Leroy D Baca, County of Los Angeles. (Clark, Justin) (Entered: 07/21/2017)
301 REQUEST FOR JUDICIAL NOTICE re NOTICE OF MOTION AND MOTION for Summary Judgment as to Remaning Claims of Plaintiffs Alain Martinez-Perez and Clemente De LaCerda Pursuant to Federal Rules of Civil Procedure Rule 56 242 in Support of Defendants' Reply to Plaintiffs' Opposition to MSJ filed by Defendants Leroy D Baca, County of Los Angeles. (Attachments: # 1 Exhibit "1")(Clark, Justin) (Entered: 07/21/2017)
302 COUNTY DEFENDANTS NOTICE OF JOINDER IN ICE DEFENDANTS STATEMENT OF UNCONTROVERTED FACTS AND CONCLUSIONS OF LAW IN OPPOSITION TO PLAINTIFFS MOTION FOR SUMMARY JUDGMENT re Second NOTICE OF MOTION AND MOTION for Partial Summary Judgment 247 and DOCKET 272-1 filed by Defendants Leroy D Baca, County of Los Angeles. (Clark, Justin) (Entered: 07/21/2017)
303 REPLY In Support NOTICE OF MOTION AND MOTION for Summary Adjudication as to Liability Issues 240 filed by Plaintiffs Annika Alliksoo, Clemente De La Cerda. (Battles, Lindsay) (Entered: 07/21/2017)
304 PLAINTIFFS' CONSOLIDATED OBJECTIONS TO DEFENDANTS' DECLARATIONS SUBMITTED IN SUPPORT OF CROSS SUMMARY JUDGMENT MOTIONS filed by Plaintiff Clemente De La Cerda (Battles, Lindsay) (Entered: 07/21/2017)
305 ORDER GRANTING Extension of the Page Limit for the Parties' Reply Briefs re Motions for Summary Judgment 295 by Judge Beverly Reid O'Connell that the page limit for each parties' reply brief on their motion for summary judgment/adjudication is extended to 15 pages. (jp) (Entered: 07/25/2017)
306 SUPPLEMENT Plaintiffs' Notice of Supplemental Authority In Support of Plaintiffs' Motion for Summary Judgment and Opposition to Defendants' Motion for Summary Judgment (Dkt. Nos. 240, 278) filed by Plaintiffs Annika Alliksoo, Clemente De La Cerda, Duncan Roy. (Attachments: # 1 Exhibit 1)(Battles, Lindsay) (Entered: 07/27/2017)
307 NOTICE OF MOTION AND MOTION to Strike Declaration, 286 , Declaration, 287 , MEMORANDUM in Opposition to Motion, 280 , Declaration, 288 filed by Federal Defendants Department of Homeland Security (DHS). Motion set for hearing on 8/28/2017 at 01:30 PM before Judge Beverly Reid O'Connell. (Attachments: # 1 Memorandum, # 2 Declaration of Max Weintraub, # 3 Exhibit Marin Declaration, # 4 Exhibit Anderson Declaration, # 5 Exhibit Shore Declaration, # 6 Exhibit Long Declaration, # 7 Proposed Order)(Weintraub, Jacob) (Entered: 07/27/2017)

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308 STIPULATION to Continue Briefing Schedule for Motion to Strike Plaintiffs' Expert Witness Declarations from August 7, 2017 to August 14, 2017 filed by Plaintiffs Annika Alliksoo, Clemente De La Cerda. (Attachments: # 1 Proposed Order Granting Stipulation for Continuance of Briefing Schedule)(Bansal, Jessica) (Entered: 07/28/2017)
309 EX PARTE APPLICATION for Leave to file Surreply filed by Plaintiffs Annika Alliksoo, Clemente De La Cerda, Duncan Roy, Christian Michel Varela. (Attachments: # 1 Proposed Gonzalez Plaintiffs' Surreply to Defendants' Reply to Plaintiffs' Opposition to Defendants' Motion for Partial Summary Judgment, # 2 Proposed Order) (Bansal, Jessica) (Entered: 08/02/2017)
310 ORDER by Judge Beverly Reid O'Connell, re Stipulation to Continue, 308 Pursuant to the parties' stipulation and for good cause shown, the deadlinefor Plaintiffs' Opposition to Defendants' Motion to Strike Expert Declarations,ECF No. 307, shall be continued to August 14, 2017. Defendants' reply shall befiled by August 21, 2017. IT IS SO ORDERED (rfi) (Entered: 08/02/2017)
311 Gonzalez Plaintiffs' Consolidated Objections to Defendants' Evidence Submitted in Support of Defendants' Reply to Plaintiffs' Opposition to Motion for Partial Summary Judgment (Attachments: # 1 Declaration Declaration of Jessica Karp Bansal, # 2 Exhibit Exhibit A)(Bansal, Jessica) (Entered: 08/02/2017)
312 OPPOSITION to EX PARTE APPLICATION for Leave to file Surreply 309 filed by Objector Department of Homeland Security (DHS). (Attachments: # 1 Declaration of Max Weintraub)(Weintraub, Jacob) (Entered: 08/03/2017)
313 REPLY in Support of EX PARTE APPLICATION for Leave to file Surreply 309 filed by Plaintiffs Annika Alliksoo, Clemente De La Cerda. (Attachments: # 1 Declaration Declaration of Jessica Karp Bansal)(Bansal, Jessica) (Entered: 08/04/2017)
314 ORDER by Judge Beverly Reid O'Connell: IT IS ORDERED granting Plaintiffs' Application for Leave to File Surreply. IT IS FURTHER ORDERED that Plaintiffs' Surreply, which was lodged with Plaintiffs' Application for Leave to File Surreply, shall be filed forthwith. 309 (rfi) (Entered: 08/07/2017)
315 MEMORANDUM in Opposition to MOTION to Strike Declaration, 286 , Declaration, 287 , MEMORANDUM in Opposition to Motion, 280 , Declaration, 288 307 filed by Plaintiffs Annika Alliksoo, Clemente De La Cerda, Duncan Roy, Christian Michel Varela. (Pasquarella, Jennifer) (Entered: 08/14/2017)
316 SUPPLEMENT to NOTICE OF MOTION AND MOTION for Summary Adjudication as to Liability Issues 240 , NOTICE OF MOTION AND

08/21/2017 08/22/2017 08/22/2017
08/22/2017 08/23/2017 08/24/2017

MOTION for Summary Judgment as to Remaning Claims of Plaintiffs Alain Martinez-Perez and Clemente De LaCerda Pursuant to Federal Rules of Civil Procedure Rule 56 242 filed by Defendants Leroy D Baca, County of Los Angeles. (Attachments: # 1 Supplemental Authority Towery v. State of California, __ Cal.Rptr.3d __, 2017 WL 3431456 (Aug. 10, 2017))(Clark, Justin) (Entered: 08/16/2017)
317 REPLY Support MOTION to Strike Declaration, 286 , Declaration, 287 , MEMORANDUM in Opposition to Motion, 280 , Declaration, 288 307 filed by Objector Department of Homeland Security (DHS). (Attachments: # 1 Declaration, # 2 Exhibit ECF Error Notice)(Weintraub, Jacob) (Entered: 08/21/2017)
318 Joint STIPULATION for Leave to substitute Reply Brief filed by Defendants Department of Homeland Security (DHS). (Attachments: # 1 Substituted 10-page Reply Brief, # 2 Proposed Order)(Weintraub, Jacob) (Entered: 08/22/2017)
319 NOTICE OF MOTION AND MOTION to File Amicus Brief filed by amici curiae Law Professors. Motion set for hearing on 9/25/2017 at 01:30 PM before Judge Beverly Reid O'Connell. (Attachments: # 1 Exhibit Proposed Brief of Law Professors as Amicus Curiae in Support of Plaintiffs' Motion for Summary Adjudication Regarding Liability, # 2 Proposed Order) (Attorney Anne Lai added to party Law Professors(pty:bkmov)) (Lai, Anne) (Entered: 08/22/2017)
320 NOTICE of Appearance filed by attorney Anne Lai on behalf of Movant Law Professors (Lai, Anne) (Entered: 08/22/2017)
321 ORDER by Judge Beverly Reid O'Connell that the Motion of Proposed Amici Curiae for Leave to File Brief in Support of Plaintiffs Motion for Summary Adjudication Regarding Liability (filed Aug. 22, 2017) 319 is GRANTED. (jp) (Entered: 08/24/2017)
322 SCHEDULING NOTICE by Judge Beverly Reid O'Connell re: NOTICE OF MOTION AND MOTION for Summary Adjudication as to Liability Issues 240 , NOTICE OF MOTION AND MOTION for Summary Judgment as to Remaning Claims of Plaintiffs Alain Martinez-Perez and Clemente De LaCerda Pursuant to Federal Rules of Civil Procedure Rule 56 242 , MOTION to Strike Declaration, 286 , Declaration, 287 , MEMORANDUM in Opposition to Motion, 280 , Declaration, 288 307 , Second NOTICE OF MOTION AND MOTION for Partial Summary Judgment 247 , NOTICE OF MOTION AND MOTION for Partial Summary Judgment as to Plaintiffs' Statutory and Probable Cause Subclasses NOTICE OF MOTION AND MOTION to Dismiss for Lack of Jurisdiction 239 The Court, on its own motion, continues the hearing on the motions in this matter. The Court will hear the motions on 9/12/2017 at 10:00 AM before Judge Beverly Reid O'Connell. THERE IS

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NO PDF DOCUMENT ASSOCIATED WITH THIS ENTRY. (rfi) TEXT ONLY ENTRY (Entered: 08/24/2017)
323 STIPULATION to Continue Expert Disclosure Deadline from September 4, 2017 in the Roy case and September 11, 2017 in the Gonzalez case to November 13, 2017 filed by Plaintiffs Annika Alliksoo, Clemente De La Cerda, Duncan Roy. (Attachments: # 1 Proposed Order)(Battles, Lindsay) (Entered: 08/29/2017)
324 NOTICE of Supplemental Authority filed by Federal Defendants Department of Homeland Security (DHS). (Attachments: # 1 Ninth Circuit Decision (Sanchez v Sessions, 14-71768, Aug. 30, 2017))(Weintraub, Jacob) (Entered: 08/31/2017)
325 ORDER Re Stipulation for Continuance of Expert Disclosure Deadline 323 by Judge Beverly Reid O'Connell that The expert disclosure deadline in the Roy and Gonzalez cases is continued from 9/4/2017 and 9/11/2017, respectively, to 11/13/2017. (jp) (Entered: 08/31/2017)
326 NOTICE OF ERRATA filed by Plaintiffs Annika Alliksoo, Clemente De La Cerda, Duncan Roy, Christian Michel Varela. correcting Sealed Document, 291 Declaration of Jennifer Poon in Support of Gonzalez Plaintiffs' Opposition to Defendants' Motion for Partial Summary Judgment; Exhibits 1a-6e (Pasquarella, Jennifer) (Entered: 09/07/2017)
327 SEALED DOCUMENT Corrected Declaration of Jennifer Poon in Support of Gonzalez Plaintiffs' Opposition to Defendants' Motion for Partial Summary Judgment; Exhibits 1a-6e re Errata, 326 , Order on Motion for Leave to File Document Under Seal 290 filed by Plaintiffs Annika Alliksoo, Clemente De La Cerda, Duncan Roy, Christian Michel Varela. (Attachments: # 1 Exhibits 1a-2e, # 2 Exhibits 2f-6e, # 3 Proof of Service)(Pasquarella, Jennifer) (Entered: 09/07/2017)
328 MINUTES OF MOTIONS HEARING Hearing held before Judge Beverly Reid O'Connell: RE: 1) DEFENDANTS' MOTION TO DISMISS AND FOR PARTIAL SUMMARY JUDGMENT (filed 5/16/2017) 239 ; 2) PLAINTIFFS' NOTICE OF MOTION AND MOTION FOR SUMMARY ADJUDICATION REGARDING LIABILITY (filed 5/16/2017) 240 ; 3) DEFENDANTS' NOTICE OF MOTION AND MOTION FOR SUMMARY JUDGMENT, OR ALTERNATIVELY, PARTIALSUMMARY JUDGMENT (filed 5/16/2017) 242 ; 4) GONZALEZ PLANTIFFS' NOTICE OF MOTION AND SECOND MOTION FOR PARTIAL SUMMARY JUDGMENT (filed 5/16/2017) 247 ; 5) COUNTY DEFENDANTS' NOTICE OF JOINDER IN MOTION FOR SUMMARY JUDGMENT BY THE DEPARTMENT OF HOMELAND SECURITY (DKT. NO. 239) (filed 5/22/2017) 259 ; 6) DEFENDANT'S MOTION TO STRIKE PLAINTIFFS' EXPERT WITNESS DECLARATIONS (filed 7/27/2017) 307 Court questions counsel as stated in court and on the

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10/20/2017

record on the motion(s) and invites counsel to present their oral arguments. Arguments by counsel are heard. The matter is taken under submission, a written order to follow. IT IS SO ORDERED. Court Reporter: Myra Ponce. (rfi) (Entered: 09/13/2017)
329 SUPPLEMENT to NOTICE OF MOTION AND MOTION for Summary Adjudication as to Liability Issues 240 , NOTICE OF MOTION AND MOTION for Summary Judgment as to Remaning Claims of Plaintiffs Alain Martinez-Perez and Clemente De LaCerda Pursuant to Federal Rules of Civil Procedure Rule 56 242 filed by Defendants Leroy D Baca, County of Los Angeles. (Attachments: # 1 Supplemental Authority Malek v. Green, 2017 WL 4284117 (N.D. Cal. Sept. 27, 2017))(Clark, Justin) (Entered: 09/28/2017)
330 NOTICE of Supplemental Authority filed by Federal Defendants Department of Homeland Security (DHS). (Attachments: # 1 Fifth Circuit Decision (City of El Cenizo, Texas v. Texas, 17-50762, Sept. 25, 2017))(Weintraub, Jacob) (Entered: 10/04/2017)
331 SUPPLEMENT to NOTICE OF MOTION AND MOTION for Summary Adjudication as to Liability Issues 240 , NOTICE OF MOTION AND MOTION for Summary Judgment as to Remaning Claims of Plaintiffs Alain Martinez-Perez and Clemente De LaCerda Pursuant to Federal Rules of Civil Procedure Rule 56 242 filed by Defendants Leroy D Baca, County of Los Angeles. (Attachments: # 1 Exhibit A)(Clark, Justin) (Entered: 10/18/2017)
332 ORDER OF THE CHIEF JUDGE (#17-082) approved by Judge Virginia A. Phillips. Pursuant to the recommended procedure adopted by the Court for the TRANSFER OF CASES of Judge Beverly Reid O'Connell, this case is transferred from Judge Beverly Reid O'Connell to the calendar of Judge Percy Anderson for all further proceedings. The case number will now reflect the initials of the transferee Judge 2:12-cv-09012 PA (FFMx). (esa) (Entered: 10/18/2017)
333 STANDING ORDER by Judge Percy Anderson. READ THIS ORDER CAREFULLY. IT CONTROLS THE CASE AND DIFFERS IN SOME RESPECTS FROM THE LOCAL RULES. (mrgo) (Entered: 10/19/2017)
334 EX PARTE APPLICATION for Hearing as to Telephonic Hearing re Plaintiffs' Rqst to Compel Production of Documents , EX PARTE APPLICATION to Shorten Time for Hearing , EX PARTE APPLICATION to Compel Production of Documents filed by Plaintiffs Annika Alliksoo, Clemente De La Cerda, Duncan Roy. (Attachments: # 1 Declaration of Lindsay Battles, # 2 Exhibit A, # 3 Exhibit B, # 4 Exhibit C, # 5 Exhibit D, # 6 Proposed Order)(Battles, Lindsay) (Entered: 10/19/2017)
335 OPPOSITION re: EX PARTE APPLICATION for Hearing as to Telephonic Hearing re Plaintiffs' Rqst to Compel Production of

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Documents EX PARTE APPLICATION to Shorten Time for Hearing EX PARTE APPLICATION to Compel Production of Documents 334 filed by Defendants Leroy D Baca, County of Los Angeles. (Clark, Justin) (Entered: 10/20/2017)
336 MINUTES (IN CHAMBERS) ORDER RE REQUEST FOR TELEPHONIC CONFERENCE by Magistrate Judge Frederick F. Mumm: denying 334 Ex Parte Application for Hearing; 334 Ex Parte Application to Shorten Time for Hearing on Discovery Motions : The Court is in receipt of plaintiffs' request for a telephonic conference. (Dkt. 334.) The application is denied with respect to the telephonic hearing. However, the Court construes the application as a motion to compel production of documents specified therein. Defendants shall file a letter brief in opposition to Plaintiff's motion no later than Wednesday, October 25, 2017. Plaintiffs shall have until Friday, October 27, 2017, to file a letter brief replying to Defendants' opposition. IT IS SO ORDERED. (jm) (Entered: 10/20/2017)
337 COUNTY DEFENDANTS' LETTER BRIEF IN OPPOSITION re: EX PARTE APPLICATION for Hearing as to Telephonic Hearing re Plaintiffs' Rqst to Compel Production of Documents EX PARTE APPLICATION to Shorten Time for Hearing EX PARTE APPLICATION to Compel Production of Documents 334 RE Plaintiffs' RFP No. 49 filed by Defendants Leroy D Baca, County of Los Angeles. (Clark, Justin) (Entered: 10/25/2017)
338 STIPULATION to Vacate Trial and Pretrial Dates filed by Plaintiffs Annika Alliksoo, Clemente De La Cerda, Duncan Roy. (Attachments: # 1 Proposed Order)(Battles, Lindsay) (Entered: 10/26/2017)
339 Plaintiffs' Reply Letter Brief filed by Plaintiff Clemente De La Cerda re: EX PARTE APPLICATION for Hearing as to Telephonic Hearing re Plaintiffs' Rqst to Compel Production of Documents EX PARTE APPLICATION to Shorten Time for Hearing EX PARTE APPLICATION to Compel Production of Documents 334 (Attachments: # 1 Exhibit)(Battles, Lindsay) (Entered: 10/27/2017)
340 ORDER OF THE CHIEF JUDGE (#17-101) approved by Chief Judge Virginia A. Phillips. Amending Order of the Chief Judge 17-082 and returning case to the calendar of Judge Beverly Reid O'Connell for all further proceedings due to case being ineligible for transfer to Judge Percy Anderson. The case number will now reflect the initials of the transferee Judge 2:12-cv-09012 BRO(FFMx). (rn) (Entered: 11/01/2017)
341 ORDER OF THE CHIEF JUDGE (#17-101) approved by Chief Judge Virginia A. Phillips. IT IS ORDERED that this case is transferred to the calendar of Judge Andre Birotte Jr for all further proceedings. The case number will now reflect the initials of the transferee Judge 2:12-cv-09012 AB(FFMx). (rn) (Entered: 11/01/2017)

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342 MINUTES (IN CHAMBERS) ORDER DENYING PLAINTIFFS' MOTION TO COMPEL by Magistrate Judge Frederick F. Mumm: denying 334 Ex Parte Application to Compel : (see attached) Regardless of "economy and practicality" issues, the parties have to comply with the scheduling orders applicable to the case. Absent an order from the district judge extending discovery (at least as to the documents at issue here), it is simply too late to afford plaintiffs the relief they seek. Both sides acknowledge that plaintiffs may seek the documents pursuant to Rule 23(d). Absent relief from the district judge, plaintiffs may be limited to pursuing production through this avenue. Given that plaintiffs are not currently relying on Rule 23, the Court expresses no opinion on whether defendants would be required to produce the documents if plaintiffs utilized this procedure. For the foregoing reasons, the Court DENIES the Motion. (jm) (Entered: 11/03/2017)
343 MINUTES (IN CHAMBERS) ORDER RE STIPULATION TO VACATE TRIAL AND PRETRIAL DEADLINES by Judge Andre Birotte Jr.: The Court GRANTS in part and DENIES in part the parties' Stipulation to Vacate Trial and Pretrial Deadlines 338 . The Court does not find that there is good cause to vacate all trial and pretrial dates, but instead finds that there is good cause to continue the trial and certain pretrial dates. Jury Trial set for 5/22/2018 08:30 AM before Judge Andre Birotte Jr. The expert disclosure deadline shall be continued to 3/16/2018. Final Pretrial Conference/Hearing on Motions in Limine set for 5/4/2018 11:00 AM before Judge Andre Birotte Jr. Motions In Limine, Memoranda of Contentions of Fact and Law, Witness List, Joint Exhibit List, Joint Status Report re Settlement due by 4/13/2018. Proposed Pretrial Conference Order due by 4/20/2018. See document for further details. Court Reporter: Not Present. (gk) (Entered: 11/03/2017)
344 SUPPLEMENT to NOTICE OF MOTION AND MOTION for Summary Adjudication as to Liability Issues 240 Plaintiffs' Second Notice of Supplemental Authority (Regarding Lopez-Aguilar v. Marion County) In Support of Plaintiffs' Motion for Summary Judgment and Opposition to Defendants' Motion for Summary Judgment filed by Plaintiffs Annika Alliksoo, Clemente De La Cerda, Duncan Roy. (Attachments: # 1 Exhibit 1)(Battles, Lindsay) (Entered: 11/20/2017)
345 NOTICE of Change of address by Lindsay Battles attorney for Plaintiffs Annika Alliksoo, Clemente De La Cerda. Changing attorneys address to 975 East Green Street, Pasadena, CA 91106. Filed by Plaintiffs Annika Alliksoo, Clemente De La Cerda. (Battles, Lindsay) (Entered: 12/29/2017)
346 MINUTES (IN CHAMBERS) ORDER RE DEFENDANTS' MOTION TO DISMISS AND MOTION FOR PARTIAL SUMMARY JUDGMENT; PLAINTIFFS' MOTION FOR SUMMARY ADJUDICATION REGARDING LIABILITY; DEFENDANTS'

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NOTICE OF MOTION AND MOTION FOR SUMMARY JUDGMENT, OR ALTERNATIVELY, PARTIAL SUMMARY JUDGMENT; GONZALEZ PLAINTIFFS' SECOND MOTION FOR PARTIAL SUMMARY JUDGMENT; AND, DEFENDANTS' MOTION TO STRIKE PLAINTIFFS' EXPERT WITNESS DECLARATIONS by Judge Andre Birotte Jr.: The Court: (1) DENIES the Gonzalez Defendants' Motion to Dismiss and for Partial Summary Judgment 239 ; (2) GRANTS in part and DENIES in part Plaintiffs' Motion for Summary Adjudication Regarding Liability 240 ; (3) GRANTS in part and DENIES in part Roy Defendants' Motion for Summary Judgment, or Alternatively, Partial Summary Judgment 242 ; (4) GRANTS in part and DENIES in part Gonzalez Plaintiffs' Second Motion for Partial Summary Judgment 247 ; and, (5) DENIES Gonzalez Defendants' Motion to Strike Plaintiffs' Expert Witness Declarations 307 . Court Reporter: Not Present. (gk) (Entered: 02/08/2018)
347 STIPULATION for Hearing re Request for Status Conference filed by Plaintiffs Annika Alliksoo, Clemente De La Cerda, Duncan Roy. (Attachments: # 1 Proposed Order)(Battles, Lindsay) (Entered: 03/02/2018)
348 NOTICE OF MOTION AND MOTION to Modify Class Definition; Memorandum of Points and Authorities filed by Plaintiffs Annika Alliksoo, Clemente De La Cerda, Duncan Roy. (Attachments: # 1 Proposed Order) (Battles, Lindsay) (Entered: 03/02/2018)
350 ORDER Re Joint Stipulation and Request for Status Conference 349 by Judge Andre Birotte Jr, the parties Joint Stipulation and Request for Status conference is hereby GRANTED. The Court sets a Status Conference for 4/13/2018 at 10:00 AM., in department 7B. The parties shall submit status conference reports no later than 3/30/2018, not to exceed 15 pages per side. The parties may file responses to the status report no later than 4/6/2018, not to exceed 10 pages per side. (jp) (Entered: 03/06/2018)
349 STIPULATION for Leave to BE EXCUSED FROM L.R. 16-15.1 AND SCHEDULING ORDER filed by Federal Defendant Department of Homeland Security (DHS). (Attachments: # 1 Proposed Order)(Weintraub, Jacob) (Entered: 03/06/2018)
351 STIPULATION to Continue Trial, Pretrial Deadlines and Expert Disclosure Deadline filed by Plaintiffs Annika Alliksoo, Clemente De La Cerda, Duncan Roy. (Attachments: # 1 Proposed Order)(Battles, Lindsay) (Entered: 03/07/2018)
352 STIPULATION for Hearing re NOTICE OF MOTION AND MOTION to Modify Class Definition; Memorandum of Points and Authorities 348 filed by defendant and third party County of Los Angeles. (Attachments: # 1 Proposed Order)(Clark, Justin) (Entered: 03/08/2018)

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353 ORDER GRANTING STIPULATION SEEKING LEAVE TO BE EXCUSED FROM L.R. 16-15.1 AND SCHEDULING ORDER by Judge Andre Birotte Jr.: Upon Stipulation 349 , it is hereby ORDERED that the Court's order requiring the Gonzalez parties to complete ADR proceedings by 3/26/2018, is VACATED and that the Gonzalez parties are exempt from the mandatory ADR requirements of L.R. 16-15.1. (gk) (Entered: 03/12/2018)
354 NOTICE OF MOTION AND MOTION for Reconsideration re Order on Motion for Partial Summary Judgment,,,,, Order on Motion to Dismiss/Lack of Jurisdiction,,,,, Order on Motion for Summary Adjudication,,,,, Order on Motion for Summary Judgment,,,,,,,,,, Order on Motion to Strike re Discovery Matter,,,, 346 filed by Federal Defendants Department of Homeland Security (DHS). Motion set for hearing on 4/13/2018 at 01:30 PM before Judge Andre Birotte Jr. (Attachments: # 1 Memorandum, # 2 Proposed Order) (Weintraub, Jacob) (Entered: 03/13/2018)
355 ORDER SETTING HEARING AND BRIEFING SCHEDULE ON PLAINTIFFS' MOTION TO MODIFY THE CLASS DEFINITION AND DEFENDANT'S MOTION TO DECERTIFY THE CLASSES by Judge Andre Birotte Jr.: Upon Stipulation 352 , Plaintiffs' Motion to Modify the Class Definition 348 is continued to 5/11/2018 at 10:00 AM before Judge Andre Birotte Jr. Defendant's opposition to this motion will be due on 3/21/2018, Plaintiff's reply will be due on 4/9/2018. Defendant's Motion to Decertify will be filed on or before 3/30/2018 and will be set for hearing on 5/11/2018. Plaintiffs' opposition to the decertification motion will be due on 4/13/2018, and Defendant's reply will be due on 4/27/2018. The 4/13/2018 status conference shall remain on calendar unless otherwise ordered by the Court. (gk) (Entered: 03/16/2018)
356 ORDER RE STIPULATION TO CONTINUE TRIAL, PRETRIAL DEADLINES, AND EXPERT DISCLOSURE DEADLINE by Judge Andre Birotte Jr.: The parties' Stipulation to Continue Trial, Pretrial Deadlines, and Expert Disclosure Deadline 351 is hereby GRANTED in part and DENIED in part. The expert disclosure deadline in both the Roy and Gonzalez cases, shall be continued to 5/21/2018. The Trial date in Gonzalez and Roy shall be continued to 12/4/2018 08:30 AM before Judge Andre Birotte Jr. Final Pretrial Conference shall be continued to 11/16/2018 11:00 AM before Judge Andre Birotte Jr. The first round of pretrial filings shall be continued to 10/26/2018. The second round of pretrial filings shall be continued to 11/2/2018. (gk) (Entered: 03/16/2018)
357 NOTICE OF MOTION AND MOTION for Issuance of Proposed Judgment and Order filed by Plaintiffs Annika Alliksoo, Clemente De La Cerda, Duncan Roy, Christian Michel Varela. Motion set for hearing on 4/13/2018 at 10:00 AM before Judge Andre Birotte Jr. (Attachments:

03/19/2018
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# 1 Motion, # 2 Proposed Order) (Pasquarella, Jennifer) (Entered: 03/16/2018)
358 NOTICE TO FILER OF DEFICIENCIES in Electronically Filed Documents RE: NOTICE OF MOTION AND MOTION for Reconsideration re Order on Motion for Partial Summary Judgment,,,,, Order on Motion to Dismiss/Lack of Jurisdiction,,,,, Order on Motion for Summary Adjudication,,,,, Order on Motion for Summary Judgment,,,,,,,,,, Or 354 . The following error(s) was/were found: Hearing information is missing, incorrect, or not timely. The filer set this matter for hearing on 4/13/2018 at 1:30 PM. Judge Birotte hears motions on Fridays at 10:00 AM. For this one time only, clerk shall reset the hearing time to 4/13/2018 at 10:00 AM In response to this notice, the Court may: (1) order an amended or correct document to be filed; (2) order the document stricken; or (3) take other action as the Court deems appropriate. You need not take any action in response to this notice unless and until the Court directs you to do so. (gk) (Entered: 03/19/2018)
359 OPPOSITION to NOTICE OF MOTION AND MOTION to Modify Class Definition; Memorandum of Points and Authorities 348 filed by Defendant County of Los Angeles. (Clark, Justin) (Entered: 03/21/2018)
360 OPPOSITION to NOTICE OF MOTION AND MOTION for Issuance of Proposed Judgment and Order 357 filed by Objector Department of Homeland Security (DHS). (Weintraub, Jacob) (Entered: 03/23/2018)
361 MEMORANDUM in Opposition to NOTICE OF MOTION AND MOTION for Reconsideration re Order on Motion for Partial Summary Judgment,,,,, Order on Motion to Dismiss/Lack of Jurisdiction,,,,, Order on Motion for Summary Adjudication,,,,, Order on Motion for Summary Judgment,,,,,,,,,, Or 354 filed by Plaintiffs Annika Alliksoo, Clemente De La Cerda, Duncan Roy, Christian Michel Varela. (Attachments: # 1 Declaration)(Pasquarella, Jennifer) (Entered: 03/23/2018)
362 RESPONSE IN SUPPORT of NOTICE OF MOTION AND MOTION for Reconsideration re Order on Motion for Partial Summary Judgment,,,,, Order on Motion to Dismiss/Lack of Jurisdiction,,,,, Order on Motion for Summary Adjudication,,,,, Order on Motion for Summary Judgment,,,,,,,,,, Or 354 filed by Objector Department of Homeland Security (DHS). (Weintraub, Jacob) (Entered: 03/30/2018)
363 REPLY in Support of NOTICE OF MOTION AND MOTION for Issuance of Proposed Judgment and Order 357 filed by Plaintiffs Annika Alliksoo, Clemente De La Cerda, Duncan Roy, Christian Michel Varela. (Attachments: # 1 Declaration, # 2 Exhibit, # 3 Exhibit)(Bansal, Jessica) (Entered: 03/30/2018)
364 NOTICE OF MOTION AND MOTION for Order for Decertification of the Classes filed by Defendant County of Los Angeles. Motion set for

03/30/2018 03/30/2018 04/06/2018 04/06/2018 04/09/2018
04/09/2018 04/12/2018

hearing on 5/11/2018 at 10:00 AM before Judge Andre Birotte Jr. (Attachments: # 1 Declaration of Greg Sivard, # 2 Exhibit "A" to Sivard's Declaration, # 3 Exhibit "B" to Sivard's Declaration, # 4 Declaration of Justin W. Clark, # 5 Proposed Order) (Clark, Justin) (Entered: 03/30/2018)
365 STATUS REPORT FOR THE APRIL 13, 2018 STATUS CONFERENCE filed by Defendant County of Los Angeles. (Clark, Justin) (Entered: 03/30/2018)
366 STATUS REPORT Roy - Plaintiffs' Status Conference Report filed by Plaintiffs Annika Alliksoo, Clemente De La Cerda. (Battles, Lindsay) (Entered: 03/30/2018)
367 STATUS REPORT Defendant's Response to Plaintiff's Report filed by Defendant County of Los Angeles. (Attachments: # 1 Exhibit A)(Clark, Justin) (Entered: 04/06/2018)
368 RESPONSE filed by Plaintiff Clemente De La Cerdato Status Report 365 Roy Plaintiffs' Response to Defendant Los Angeles County's Status Conference Report (Battles, Lindsay) (Entered: 04/06/2018)
369 TRANSCRIPT ORDER as to Plaintiffs Annika Alliksoo, Clemente De La Cerda, Duncan Roy, Christian Michel Varela for Court Reporter. Court will contact Sandra Kang at skang@aclusocal.org with further instructions regarding this order. Transcript preparation will not begin until payment has been satisfied with the court reporter. (Pasquarella, Jennifer) (Entered: 04/09/2018)
370 REPLY NOTICE OF MOTION AND MOTION to Modify Class Definition; Memorandum of Points and Authorities 348 filed by Plaintiff Clemente De La Cerda. (Battles, Lindsay) (Entered: 04/09/2018)
371 MINUTES (IN CHAMBERS) ORDER DENYING WITHOUT PREJUDICE GONZALEZ PLAINTIFFS' MOTION FOR ENTRY OF PROPOSED JUDGMENT by Judge Andre Birotte Jr.: The Court DENIES without prejudice Plaintiffs' Motion for Entry of Proposed Judgment and Order "to remedy the statutory and constitutional violations suffered by the Statutory Subclass and the 'foreign-born, no match' portion of the Probable Cause Subclass" 357 , given that the Court has not resolved all claims in the Gonzalez action, and this Court does not have a practice of entering piecemeal judgments. Plaintiffs are permitted to refile their Motion for Entry of Proposed Judgment and Order after the conclusion of the case. The hearing set for 4/13/2018, for this Motion is hereby VACATED. The Court does not vacate the hearing for the Motion to Reconsider 354 , and the Status Conference remains on calendar, but both the hearing on the Motion to Reconsider and the Status Conference are advanced to 9:00 AM. Court Reporter: N/A. (gk) (Entered: 04/12/2018)

04/12/2018 04/12/2018 04/13/2018 04/13/2018 04/16/2018 04/16/2018

372 (IN CHAMBERS) ORDER ADVANCING STATUS CONFERENCE AND FEDERAL DEFENDANTS' MOTION UNDER LR 7-18 AND NOTICE OF MOTION TO RECONSIDER THE COURTS FEBRUARY 7, 2018 ORDER (Dkt. No. 354 ) by Judge Andre Birotte Jr. The Status Conference and hearing on Defendants' Motion to Reconsider the Court's February 7, 2018 Order are hereby ADVANCED from 10:00 AM to 9:00 AM on Friday, April 13, 2018. IT IS SO ORDERED. THERE IS NO PDF DOCUMENT ASSOCIATED WITH THIS ENTRY. (cb) TEXT ONLY ENTRY (Entered: 04/12/2018)
373 NOTICE OF MOTION AND MOTION for Reconsideration re Order on Motion for Partial Summary Judgment,,,,, Order on Motion to Dismiss/Lack of Jurisdiction,,,,, Order on Motion for Summary Adjudication,,,,, Order on Motion for Summary Judgment,,,,,,,,,, Order on Motion to Strike re Discovery Matter,,,, 346 RE PLAINTIFFS MOTION FOR SUMMARY ADJUDICATION PURSUANT TO CENTRAL DISTRICT LOCAL RULE 7-18 filed by Defendant County of Los Angeles. Motion set for hearing on 5/11/2018 at 10:00 AM before Judge Andre Birotte Jr. (Attachments: # 1 Exhibit A, # 2 Proposed Order) (Clark, Justin) (Entered: 04/12/2018)
374 MINUTES OF STATUS CONFERENCE; FEDERAL DEFENDANTS' MOTION UNDER LR 7-18 AND NOTICE OF MOTION TO RECONSIDER THE COURT'S FEBRUARY 7, 2018 ORDER 354 (held and completed) before Judge Andre Birotte Jr. The Courtroom Deputy Clerk distributes the Court's tentative ruling prior to the case being called. The Court having carefully considered the papers and the evidence submitted by the parties, and having heard the oral argument of counsel, hereby takes the motion under submission. Court Reporter: Amy Diaz. (lom) (Entered: 04/13/2018)
375 Opposition re: NOTICE OF MOTION AND MOTION for Order for Decertification of the Classes 364 Roy-Plaintiffs' Opposition to Defendant Los Angeles County's Motion to Decertify Class filed by Plaintiff Clemente De La Cerda. (Battles, Lindsay) (Entered: 04/13/2018)
376 TRANSCRIPT for proceedings held on 9/12/2017 at 10:53 a.m. Court Reporter/Electronic Court Recorder: Myra L. Ponce, CSR, RDR, CRR, email address myraponce@sbcglobal.net. Transcript may be viewed at the court public terminal or purchased through the Court Reporter/Electronic Court Recorder before the deadline for Release of Transcript Restriction. After that date it may be obtained through PACER. Notice of Intent to Redact due within 7 days of this date. Redaction Request due 5/7/2018. Redacted Transcript Deadline set for 5/17/2018. Release of Transcript Restriction set for 7/16/2018. (Ponce, Myra) (Entered: 04/16/2018)
377 NOTICE OF FILING TRANSCRIPT filed for proceedings 9/12/2017 at 10:53 a.m. re Transcript 376 THERE IS NO PDF DOCUMENT

04/18/2018 04/20/2018 04/27/2018 04/27/2018 05/02/2018 05/04/2018 05/07/2018

ASSOCIATED WITH THIS ENTRY. (Ponce, Myra) TEXT ONLY ENTRY (Entered: 04/16/2018)
378 ORDER DENYING DEFENDANTS' MOTION UNDER LR 7-18 TO RECONSIDER THE COURT'S FEBRUARY 7, 2018 by Judge Andre Birotte Jr. After considering the papers filed in support of and in opposition to the instant Motion, as well as the oral argument of counsel, the Court DENIES the Gonzalez Defendants' Motion 354 . See document for details. (smo) (Entered: 04/18/2018)
379 OPPOSITION to NOTICE OF MOTION AND MOTION for Reconsideration re Order on Motion for Partial Summary Judgment,,,,, Order on Motion to Dismiss/Lack of Jurisdiction,,,,, Order on Motion for Summary Adjudication,,,,, Order on Motion for Summary Judgment,,,,,,,,,, Or 373 filed by Plaintiff Clemente De La Cerda. (Battles, Lindsay) (Entered: 04/20/2018)
380 REPLY IN SUPPORT OF NOTICE OF MOTION AND MOTION for Order for Decertification of the Classes 364 filed by Defendant County of Los Angeles. (Attachments: # 1 Declaration of Greg Sivard)(Clark, Justin) (Entered: 04/27/2018)
381 REPLY IN SUPPORT OF NOTICE OF MOTION AND MOTION for Reconsideration re Order on Motion for Partial Summary Judgment,,,,, Order on Motion to Dismiss/Lack of Jurisdiction,,,,, Order on Motion for Summary Adjudication,,,,, Order on Motion for Summary Judgment,,,,,,,,,, Or 373 filed by Defendant County of Los Angeles. (Attachments: # 1 Exhibit "B")(Clark, Justin) (Entered: 04/27/2018)
382 STIPULATION for Leave to APPEAR BY TELEPHONE AT THE MAY 11, 2018 HEARING filed by Federal Defendants Department of Homeland Security (DHS). (Attachments: # 1 Proposed Order)(Weintraub, Jacob) (Entered: 05/02/2018)
383 ORDER GRANTING STIPULATION SEEKING LEAVE TO APPEAR BY TELEPHONE AT THE MAY 11, 2018 HEARING 382 by Judge Andre Birotte Jr. It is hereby ORDERED that counsel for Federal Defendants, J. Max Weintraub, may appear by telephone at the hearing scheduled before this Honorable Court on May 11, 2018, at 10:00 a.m., Pacific Daylight Time. (lom) (Entered: 05/04/2018)
384 CONSOLIDATED OBJECTIONS to the DECLARATIONS OF GREGORY SIVARD in opposition to re: NOTICE OF MOTION AND MOTION for Order for Decertification of the Classes 364 filed by Plaintiffs Annika Alliksoo, Clemente De La Cerda, Duncan Roy. (Attachments: # 1 Declaration of Lindsay Battles, # 2 Exhibit A to the Declaration of Lindsay Battles, # 3 Declaration of Dr. Brian Kriegler)(Battles, Lindsay) (Entered: 05/07/2018)

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385 DEFENDANTS RESPONSE AND REQUEST TO STRIKE PORTIONS OF PLAINTIFFS OBJECTIONS TO DECLARATIONS OF GREG SIVARD re NOTICE OF MOTION AND MOTION for Order for Decertification of the Classes 364 filed by Defendant County of Los Angeles. (Attachments: # 1 Declaration of Greg Sivard in Response to Plaintiff's Objections to April 26 Declaration)(Clark, Justin) (Entered: 05/08/2018)
386 NOTICE OF SUBSTITUTION OF CITY OF EL CENIZO OPINION BY THE FIFTH CIRCUIT COURT OF APPEALS filed by Defendant County of Los Angeles. (Attachments: # 1 Exhibit "A")(Clark, Justin) (Entered: 05/09/2018)
387 MINUTES OF Motion Hearing held before Judge Andre Birotte Jr. RE: Plaintiffs' Motion to Modify Class Definition 348 ; Defendant's Motion for Decertification of the Classes 364 ; Defendant County of Los Angeles' Motion for Reconsideration of the Court's Order Re Plaintiff's Motion for Summary Adjudication 373 . The Courtroom Deputy Clerk distributes the Court's tentative rulings prior to the case being called. The Court having carefully considered the papers and the evidence submitted by the parties, and having heard the oral argument of counsel, hereby takes the motions under submission. Court Reporter: Chia Mei Jui. (gk) (Entered: 05/14/2018)
388 NOTICE OF SUPPLEMENTAL AUTHORITY filed by Defendant County of Los Angeles. (Attachments: # 1 Supplemental Authority, Victorino and Tavitian v. FCA US LLC)(Clark, Justin) (Entered: 06/14/2018)
389 RESPONSE filed by Plaintiffs Annika Alliksoo, Clemente De La Cerda, Duncan Royto Notice (Other) 388 PLAINTIFFS RESPONSE TO DEFENDANTS NOTICE OF SUPPLEMENTAL AUTHORITY (REGARDING VICTORINO AND TAVITIAN V. FCA US LLC IN SUPPORT OF DEFENDANTS MOTION FOR DECERTIFICATION (DKT. 364) (Battles, Lindsay) (Entered: 06/20/2018)
390 OBJECTIONS to Response, 389 DEFENDANTS OBJECTION AND REQUEST TO STRIKE PLAINTIFFS RESPONSE TO DEFENDANTS NOTICE OF SUPPLEMENTAL AUTHORITY (DKT. NO. 389) RE PENDING MOTION FOR DECERTIFICATION (DKT. 364) filed by Defendant County of Los Angeles. (Clark, Justin) (Entered: 06/20/2018)
391 STIPULATION to Exclude Gonzalez Defendants' Untimely Disclosed Fact Witnesses filed by Plaintiffs Annika Alliksoo, Clemente De La Cerda, Duncan Roy, Christian Michel Varela. (Attachments: # 1 Declaration of Jessica Karp Bansal, # 2 Exhibits A-H in Support of Declaration of Jessica Karp Bansal)(Bansal, Jessica) (Entered: 06/26/2018)

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08/03/2018
08/08/2018 08/08/2018

392 NOTICE OF SUPPLEMENTAL AUTHORITY RE: DEFENDANTS MOTION FOR RECONSIDERATION OF THE COURTS ORDER RE PLAINTIFFS MOTION FOR SUMMARY ADJUDICATION (DOCKET NO. 373) CURRENTLY UNDER SUBMISSION filed by Defendants Leroy D Baca, County of Los Angeles. (Attachments: # 1 Supplemental Authority; Guillermo Tenorio-Serrano v. James Driscoll et al.,)(Clark, Justin) (Entered: 07/09/2018)
393 SUPPLEMENTAL BRIEF filed by Plaintiffs Annika Alliksoo, Clemente De La Cerda, Duncan Roy, Christian Michel Varela. GONZALEZ PLAINTIFFS' SUPPLEMENTAL BRIEF regarding Stipulation to Exclude, 391 . (Bansal, Jessica) (Entered: 07/10/2018)
394 ORDER DENYING DEFENDANTS' MOTION FOR DECERTIFICATION OF THE CLASSES 364 by Judge Andre Birotte Jr. See document for details. (gk) (Entered: 07/11/2018)
395 ORDER DENYING DEFENDANTS' MOTION UNDER L.R. 7-18 TO RECONSIDER THE COURT'S 2/7/2018 ORDER 373 by Judge Andre Birotte Jr. See document for details. (gk) (Entered: 07/11/2018)
396 ORDER GRANTING PLAINTIFFS' MOTION TO MODIFY CLASS DEFINITION by Judge Andre Birotte Jr.: The Court GRANTS the Roy Plaintiffs' Motion to Modify Class Definition 348 . The Post-48 Hour Gerstein Subclass is hereby amended to conform to the original Gerstein Damages Class as follows: "All LASD inmates who were detained beyond the time they are due for release from criminal custody, solely on the basis of immigration detainers, excluding inmates who had a final order of removal or were subject to ongoing removal proceedings as indicated on the face of the detainer." (gk) (Entered: 07/11/2018)
397 NOTICE OF MOTION AND MOTION to Exclude DEFENDANTS' UNTIMELY DISCLOSED FACT WITNESSES filed by Gonzalez Plaintiffs Annika Alliksoo, Clemente De La Cerda, Duncan Roy. Motion set for hearing on 8/31/2018 at 10:00 AM before Judge Andre Birotte Jr. (Attachments: # 1 Declaration Jessica Karp Bansal, # 2 Exhibit A, # 3 Exhibit B, # 4 Exhibit C, # 5 Exhibit D, # 6 Exhibit E, # 7 Exhibit F, # 8 Exhibit G, # 9 Proposed Order) (Bansal, Jessica) (Entered: 08/03/2018)
398 Joint STIPULATION to Continue Hearing on Plaintiffs' Motion from August 31, 2018 to September 14, 2018 Re: NOTICE OF MOTION AND MOTION to Exclude DEFENDANTS' UNTIMELY DISCLOSED FACT WITNESSES 397 filed by Federal Defendants Department of Homeland Security (DHS). (Attachments: # 1 Proposed Order)(Weintraub, Jacob) (Entered: 08/08/2018)
399 Corrected STIPULATION to Continue Hearing on Plaintiffs' Motion to Exclude Defendants' Witnesses from August 31, 2018 to September 14, 2018 Re: NOTICE OF MOTION AND MOTION to Exclude

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09/27/2018 10/02/2018 10/08/2018

DEFENDANTS' UNTIMELY DISCLOSED FACT WITNESSES 397 filed by Federal Defendants Department of Homeland Security (DHS). (Attachments: # 1 Proposed Order)(Weintraub, Jacob) (Entered: 08/08/2018)
400 ORDER GRANTING STIPULATION TO CONTINUE HEARING ON PLAINTIFFS' MOTION TO EXCLUDE DEFENDANTS' WITNESSES by Judge Andre Birotte Jr.: Upon Stipulation 399 , it is hereby ORDERED that the deadline for Defendants to file their opposition to Plaintiffs' motion 397 shall be continued until 8/17/2018. Plaintiffs' reply shall be shall be continued until 8/31/2018. The hearing date for Plaintiffs' motion shall be continued until 9/14/2018 at 10:00 AM before Judge Andre Birotte Jr. (gk) (Entered: 08/14/2018)
401 MEMORANDUM in Opposition to NOTICE OF MOTION AND MOTION to Exclude DEFENDANTS' UNTIMELY DISCLOSED FACT WITNESSES 397 filed by Objector Department of Homeland Security (DHS). (Attachments: # 1 Declaration)(Weintraub, Jacob) (Entered: 08/17/2018)
402 REPLY Gonzalez Plaintiffs' Reply In Support of Motion to Exclude Defendants' Untimely Disclosed Fact Witnesses filed by Plaintiffs Annika Alliksoo, Clemente De La Cerda. (Bansal, Jessica) (Entered: 08/31/2018)
403 MINUTES OF GONZALEZ PLAINTIFFS' MOTION TO EXCLUDE DEFENDANTS UNTIMELY DISCLOSED FACT WITNESSES 397 held before Judge Andre Birotte Jr. The Court having carefully considered the papers and the evidence submitted by the parties, and having heard the oral argument of counsel, hereby DENIES the motion but re-opens discovery for the limited purpose of deposing two new witnesses and obtaining discovery related to their testimony. Court Reporter: Chia Mei Jui. (iv) (Entered: 09/14/2018)
404 STIPULATION to Continue Trial and Pretrial Deadlines filed by Defendants Leroy D Baca, County of Los Angeles. (Attachments: # 1 Proposed Order)(Clark, Justin) (Entered: 09/27/2018)
405 STIPULATION to Continue Amended Stipulation to Continue Trial and Pretrial Deadlines in Roy v. County of Los Angeles (This Stipulation Does Not Apply to Gonzalez v. ICE) filed by Plaintiffs Annika Alliksoo, Clemente De La Cerda, Duncan Roy. (Attachments: # 1 Proposed Order)(Battles, Lindsay) (Entered: 10/02/2018)
406 Notice of Appearance or Withdrawal of Counsel: for attorney Mohammad K Tajsar counsel for Plaintiffs Annika Alliksoo, Clemente De La Cerda, Duncan Roy, Christian Michel Varela. Adding Mohammad K. Tajsar as counsel of record for Plaintiffs for the reason indicated in the G-123 Notice. Filed by Plaintiffs Plaintiffs. (Attorney Mohammad K Tajsar added to party Annika Alliksoo(pty:pla), Attorney Mohammad K Tajsar added to party Clemente De La Cerda(pty:pla), Attorney

10/08/2018 10/09/2018
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Mohammad K Tajsar added to party Duncan Roy(pty:pla), Attorney Mohammad K Tajsar added to party Christian Michel Varela(pty:pla))(Tajsar, Mohammad) (Entered: 10/08/2018)
407 * STRICKEN * (Bibring, Peter) ** DOCUMENT STRICKEN PURSUANT TO THE RESPONSE BY THE COURT TO NOTICE TO FILER OF DEFICIENCIES IN ELECTRONICALLY FILED DOCUMENTS FILED 10/10/2018 410 ** Modified on 10/10/2018 (gk). (Entered: 10/08/2018)
408 NOTICE TO FILER OF DEFICIENCIES in Electronically Filed Documents RE: Notice of Appearance or Withdrawal of Counsel (G123) 407 . The following error(s) was/were found: Incomplete docket text: missing name of event and docket text content In response to this notice, the Court may: (1) order an amended or correct document to be filed; (2) order the document stricken; or (3) take other action as the Court deems appropriate. You need not take any action in response to this notice unless and until the Court directs you to do so. (ak) (Entered: 10/09/2018)
409 Notice of Appearance or Withdrawal of Counsel: for attorney Peter Bibring counsel for Plaintiffs Annika Alliksoo, Clemente De La Cerda, Duncan Roy, Christian Michel Varela. Peter Bibring is no longer counsel of record for the aforementioned party in this case for the reason indicated in the G-123 Notice. Filed by Plaintiffs Annika Alliksoo, Clemente De La Cerda, Duncan Roy, Christian Michel Varela. (Bibring, Peter) (Entered: 10/09/2018)
410 RESPONSE BY THE COURT TO NOTICE TO FILER OF DEFICIENCIES IN ELECTRONICALLY FILED DOCUMENTS by Clerk RE: Notice of Appearance or Withdrawal of Counsel (G-123) 407 . The document is stricken. Counsel has filed a corrected document at docket entry 409. (gk) (Entered: 10/10/2018)
411 (IN CHAMBERS) ORDER SETTING STATUS CONFERENCE by Judge Andre Birotte Jr. In light of the recently filed Stipulation to Continue Trial and Pretrial Deadlines (Dkt. No. 405), a Status Conference is set for Friday, October 19, 2018, at 9:00 AM before Judge Andre Birotte Jr. IT IS SO ORDERED. THERE IS NO PDF DOCUMENT ASSOCIATED WITH THIS ENTRY. (cb) TEXT ONLY ENTRY (Entered: 10/11/2018)
412 REQUEST TO APPEAR TELEPHONICALLY AT THE OCTOBER 19, 2018 STATUS CONFERENCE filed by Plaintiff Clemente De La Cerda re: Text Only Scheduling Notice, 411 (Attachments: # 1 Proposed Order)(Litt, Barrett) (Entered: 10/12/2018)
413 NOTICE NOTICE REGARDING SCHEDULING OF MEDIATION FOR DECEMBER 3, 2018 filed by Plaintiffs Annika Alliksoo, Clemente De La Cerda, Duncan Roy. (Litt, Barrett) (Entered: 10/12/2018)

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414 EX PARTE APPLICATION to Continue Trial and Pre-trial deadlines from 12/4/2018 to 03/05/2018 Re: Order,,, Set/Reset Deadlines/Hearings,, 356 filed by Defendants Department of Homeland Security (DHS). (Attachments: # 1 Declaration Declaration of Max Weintraub, # 2 Exhibit Plaintiffs' witness list, # 3 Proposed Order) (Weintraub, Jacob) (Entered: 10/15/2018)
415 ORDER RE REQUEST TO APPEAR TELEPHONICALLY AT THE 10/19/2018 STATUS CONFERENCE by Judge Andre Birotte Jr.: Counsel for Plaintiffs in the Roy matter, Barrett S. Litt's Requests for permission to appear telephonically at the Status Conference set for 10/19/2018 at 9:00 AM 412 is hereby GRANTED. See document for further details. (gk) (Entered: 10/16/2018)
416 OPPOSITION to EX PARTE APPLICATION to Continue Trial and Pretrial deadlines from 12/4/2018 to 03/05/2018 Re: Order,,, Set/Reset Deadlines/Hearings,, 356 414 filed by Plaintiffs Annika Alliksoo, Clemente De La Cerda, Duncan Roy, Christian Michel Varela. (Attachments: # 1 Declaration of Jennifer Pasquarella, # 2 Exh. A to Jennifer Pasquarella Declaration, # 3 Exh. B to Jennifer Pasquarella Declaration, # 4 Exh. C to Jennifer Pasquarella Declaration)(Pasquarella, Jennifer) (Entered: 10/16/2018)
417 MINUTES OF Status Conference held before Judge Andre Birotte Jr: Hearing is held. Court and counsel confer regarding the Stipulation to Continue Trial and Pretrial Deadlines (Dkt. No. 405). The Court will issue its ruling. Court Reporter: Chia Mei Jui. (bm) (Entered: 10/19/2018)
418 REPLY support EX PARTE APPLICATION to Continue Trial and Pretrial deadlines from 12/4/2018 to 03/05/2018 Re: Order,,, Set/Reset Deadlines/Hearings,, 356 414 filed by Objector Department of Homeland Security (DHS). (Attachments: # 1 Exhibit Plaintiffs' Amended Expert Disclosure Statement)(Weintraub, Jacob) (Entered: 10/22/2018)
419 APPLICATION of Non-Resident Attorney Ruben Loyo to Appear Pro Hac Vice on behalf of Plaintiffs Annika Alliksoo, Clemente De La Cerda, Duncan Roy, Christian Michel Varela (Pro Hac Vice Fee - $400 Fee Paid, Receipt No. 0973-22617028) filed by Plaintiffs Annika Alliksoo, Clemente De La Cerda, Duncan Roy, Christian Michel Varela. (Attachments: # 1 Proposed Order) (Pasquarella, Jennifer) (Entered: 10/22/2018)
420 EX PARTE APPLICATION for Leave to file Surreply to Defendants' Reply to Plaintiffs' Opposition to Defendants' Ex Parte Application to Continue Trial and Pretrial Deadlines filed by Plaintiffs Annika Alliksoo, Clemente De La Cerda, Duncan Roy, Christian Michel Varela. (Attachments: # 1 Proposed Surreply to Defendants' Reply to Plaintiffs' Opposition to Defendants' Ex Parte Application to Continue Trial and Pretrial Deadlines, # 2 Declaration of Jessica Bansal ISO Gonzalez

10/23/2018 10/24/2018 10/24/2018
10/24/2018 10/24/2018

Plaintiffs' Surreply, # 3 Exhibit A to Declaration of Jessica Bansal ISO Gonzalez Plaintiffs' Surreply, # 4 Proposed Order) (Bansal, Jessica) (Entered: 10/22/2018)
421 NOTICE of Deficiency in Electronically Filed Pro Hac Vice Application RE: APPLICATION of Non-Resident Attorney Ruben Loyo to Appear Pro Hac Vice on behalf of Plaintiffs Annika Alliksoo, Clemente De La Cerda, Duncan Roy, Christian Michel Varela (Pro Hac Vice Fee - $400 Fee Paid, Receipt No. 0973-22617028) 419 . The following error(s) was/were found: Document submitted in wrong case. Other error(s) with document(s): Case number reads 13-cv-4416. (lt) (Entered: 10/23/2018)
422 STIPULATION to Continue First and Second Round of Pretrial Filings from 10/26/2018 and 11/2/2018 to 11/2/2018 and 11/9/2018 filed by Plaintiffs Annika Alliksoo, Clemente De La Cerda, Duncan Roy, Christian Michel Varela. (Attachments: # 1 Proposed Order)(Bansal, Jessica) (Entered: 10/24/2018)
423 ORDER DENYING EX PARTE APPLICATION TO CONTINUE TRIAL AND PRETRIAL DEADLINES by Judge Andre Birotte Jr: The Court, having considered Gonzalez Defendant's Ex Parte Application to Continue trial, and for failure to show good cause the Court denies Defendants Motion to Continue. The Trial Date in Gonzalez is set for December 4, 2018, at 8:30 am. A status conference is set for this Friday, October 26, 2018, at 10:00 am.1 The Pretrial Conference remains as previously set for Friday, November 16, 2018, at 11:00 am. The first round of pretrial filings shall be continued until November 2, 2018. The second round of pretrial filings shall be continued until November 9, 2018. (yl) (Entered: 10/24/2018)
424 ORDER RE AMENDED STIPULATION TO CONTINUE TRIAL AND PRETRIAL DEADLINES IN ROY V. COUNTY OF LOS ANGELES by Judge Andre Birotte Jr. GOOD CAUSE APPEARING, the parties' amended stipulation to continue trial and pretrial deadlines in Roy v. County of Los Angeles is hereby GRANTED. The trial and pretrial schedule are continued as follows: Trial: September 10, 2019 at 8:30 a.m., Pretrial Conference: August 23, 2019 at 11:00 a.m.; (See order for further details). IT IS SO ORDERED. (yl) (Entered: 10/24/2018)
425 MINUTE ORDER (IN CHAMBERS) by Judge Andre Birotte Jr: ORDER RE: Consolidation of Related Cases: On October 2, 2018 the parties in Roy filed a stipulation to continue trial and pretrial deadlines in Roy until September 11, 2019 as a result of pending mediation (Dkt. No. 405). The Gonzalez trial was not part of the parties stipulation. On October 15, 2018 Defendants filed an ex parte motion to continue the Gonzalez trial. (Dkt. No. 414). Plaintiffs opposed the motion. (Dkt. No. 416). On October 24, 2018 the Court denied the Gonzalez Defendants ex parte motion and the granted the Roy parties' stipulation to continue trial and pretrial deadlines. The Court now ORDERS Roy and Gonzalez to

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remain consolidated until the conclusion of trial in either case, at which point the Court will reconsider whether consolidation is still appropriate. IT IS SO ORDERED. (yl) (Entered: 10/24/2018)
426 MINUTES OF Status Conference held before Judge Andre Birotte Jr: As discussed in Court and on the record, the Jury Trial date in the Gerardo Gonzalez v. Immigration and Customs Enforcement et al matter remains set for Tuesday, December 4, 2018, at 8:30 am. Court Reporter: Chia Mei Jui. (twdb) (Entered: 10/26/2018)
429 AMENDED MINUTES Status Conference 426 before Judge Andre Birotte Jr: As discussed in Court and on the record, the Court Trial date in the Gerardo Gonzalez v. Immigration and Customs Enforcement et al matter remains set for Tuesday, 12/4/2018 at 8:30 AM. (cbr) (Entered: 10/30/2018)
428 ORDER by Judge Andre Birotte Jr: granting 419 Non-Resident Attorney Loyo, Ruben APPLICATION to Appear Pro Hac Vice on behalf of Plaintiffs, designating Pasquarella, Jennifer L. as local counsel. (yl) (Entered: 10/30/2018)
427 Notice of Appearance or Withdrawal of Counsel: for attorney Zoe Nicole McKinney counsel for Plaintiffs Annika Alliksoo, Clemente De La Cerda, Duncan Roy, Christian Michel Varela. Adding Zoe McKinney as counsel of record for Plaintiffs for the reason indicated in the G-123 Notice. Filed by Plaintiffs Zoe McKinney. (Attorney Zoe Nicole McKinney added to party Annika Alliksoo(pty:pla), Attorney Zoe Nicole McKinney added to party Clemente De La Cerda(pty:pla), Attorney Zoe Nicole McKinney added to party Duncan Roy(pty:pla), Attorney Zoe Nicole McKinney added to party Christian Michel Varela(pty:pla))(McKinney, Zoe) (Entered: 10/30/2018)
430 Joint STIPULATION to Continue Trial from 12/4/18 to 1/15/19 filed by Defendant Department of Homeland Security (DHS). (Attachments: # 1 Proposed Order)(Weintraub, Jacob) (Entered: 11/01/2018)
431 NOTICE of Change of address by Jessica Karp Bansal attorney for Plaintiffs Annika Alliksoo, Clemente De La Cerda, Duncan Roy, Christian Michel Varela. Changing attorneys address to 1030 S. Arroyo Pkw, Ste 106, Pasadena CA 91105. Filed by Plaintiffs Annika Alliksoo, Clemente De La Cerda, Duncan Roy, Christian Michel Varela. (Bansal, Jessica) (Entered: 11/05/2018)
432 ORDER GRANTING STIPULATION TO CONTINUE THE TRIAL AND PRETRIAL DEADLINES by Judge Andre Birotte Jr.: The parties' Stipulation to Continue the Trial and Pretrial Deadlines in the Gonzalez matter 430 , is GRANTED. The trial in this matter shall be continued until 1/15/2019 at 8:30 AM. The deadline for the first round of pretrial filings shall be continued to 11/16/2018. The deadline for the second round of pretrial filings shall be continued to 11/30/2018. The pretrial

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conference shall be continued to 12/21/2018 at 11:00 AM. ( Reset Gonzalez [CV 13-04416 AB (FFMx)] Bench Trial reset for 1/15/2019 08:30 AM before Judge Andre Birotte Jr. Final Pretrial Conference reset for 12/21/2018 11:00 AM before Judge Andre Birotte Jr.; Roy [CV 1209012 AB (FFMx)] Jury Trial set for 9/10/2019 08:30 AM before Judge Andre Birotte Jr. Final Pretrial Conference set for 8/23/2019 11:00 AM before Judge Andre Birotte Jr. ) (gk) (Entered: 11/06/2018)
433 Notice of Appearance or Withdrawal of Counsel: for attorney John JW Inkeles counsel for Defendants Leroy D Baca, County of Los Angeles, Alain Martinez-Perez. Adding John J. W. Inkeles as counsel of record for Immigration and Customs Enforcement, et al. for the reason indicated in the G-123 Notice. Filed by Defendants John J. W. Inkeles. (Attorney John JW Inkeles added to party Leroy D Baca(pty:dft), Attorney John JW Inkeles added to party County of Los Angeles(pty:dft), Attorney John JW Inkeles added to party Alain Martinez-Perez(pty:dft))(Inkeles, John) (Entered: 11/07/2018)
434 Notice of Appearance or Withdrawal of Counsel: for attorney John JW Inkeles counsel for Objector Department of Homeland Security (DHS). Adding John J. W. Inkeles as counsel of record for Federal Defendants -Department of Homeland Security for the reason indicated in the G-123 Notice. Filed by Federal Defendants -- Department of Homeland Security John J. W. Inkeles. (Inkeles, John) (Entered: 11/08/2018)
435 JOINT STATUS REPORT of Settlement in Gonzalez filed by Plaintiffs Annika Alliksoo, Clemente De La Cerda, Duncan Roy, Christian Michel Varela. (Pasquarella, Jennifer) (Entered: 11/14/2018)
436 Witness List filed by Plaintiffs Annika Alliksoo, Clemente De La Cerda, Duncan Roy, Christian Michel Varela.. (Pasquarella, Jennifer) (Entered: 11/16/2018)
437 JOINT Exhibit List for Gonzalez v. ICE Trial filed by Plaintiffs Annika Alliksoo, Clemente De La Cerda, Duncan Roy, Christian Michel Varela.. (Pasquarella, Jennifer) (Entered: 11/16/2018)
438 Witness List filed by Federal Defendants Department of Homeland Security (DHS).. (Weintraub, Jacob) (Entered: 11/16/2018)
439 REQUEST FOR JUDICIAL NOTICE for Gonzalez v. ICE Trial filed by Plaintiffs Annika Alliksoo, Clemente De La Cerda, Duncan Roy, Christian Michel Varela. (Attachments: # 1 Exhibits A-H, # 2 Exhibits IT, # 3 Exhibits U-GG, # 4 Exhibits HH-KK, # 5 Exhibits LL-RR, # 6 Exhibits SS-WW, # 7 Exhibits XX-ZZ, # 8 Exhibits AAAHHH)(Pasquarella, Jennifer) (Entered: 11/16/2018)
440 MEMORANDUM of CONTENTIONS of FACT and LAW filed by Plaintiffs Annika Alliksoo, Clemente De La Cerda, Duncan Roy, Christian Michel Varela. (Pasquarella, Jennifer) (Entered: 11/16/2018)

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441 NOTICE OF LODGING filed by Plaintiffs Annika Alliksoo, Clemente De La Cerda, Duncan Roy, Christian Michel Varela. GONZALEZ PLAINTIFFS' PROPOSED FINDINGS OF FACT AND CONCLUSIONS OF LAW (Attachments: # 1 Gonzalez Plaintiffs' Proposed Findings of Fact and Conclusions of Law)(Pasquarella, Jennifer) (Entered: 11/16/2018)
442 NOTICE OF LODGING filed re Order,,,, Terminate Deadlines and Hearings,,,, Set/Reset Hearing,,, 432 (Attachments: # 1 Federal Defendants Proposed Findings of Fact and Conclusions of Law)(Weintraub, Jacob) (Entered: 11/23/2018)
443 MEMORANDUM of CONTENTIONS of FACT and LAW filed by Federal Defendants Department of Homeland Security (DHS). (Weintraub, Jacob) (Entered: 11/23/2018)
444 EX PARTE APPLICATION for Sanctions against Defendants pursuant to Federal Rule of Civil Procedure 16(f) filed by Plaintiffs Annika Alliksoo, Clemente De La Cerda, Duncan Roy, Christian Michel Varela. (Attachments: # 1 Declaration of Jennifer Pasquarella, # 2 Exhibit A-E, # 3 Proposed Order) (Bansal, Jessica) (Entered: 11/23/2018)
445 MEMORANDUM in Opposition to EX PARTE APPLICATION for Sanctions against Defendants pursuant to Federal Rule of Civil Procedure 16(f) 444 filed by Objector Department of Homeland Security (DHS). (Attachments: # 1 Declaration Declaration of J. Max Weintraub, # 2 Exhibit, # 3 Exhibit)(Weintraub, Jacob) (Entered: 11/26/2018)
446 AMENDED DOCUMENT filed by Plaintiffs Annika Alliksoo, Clemente De La Cerda, Duncan Roy, Christian Michel Varela. Amendment to Witness List 436 for Gonzalez v. ICE Trial (Pasquarella, Jennifer) (Entered: 11/29/2018)
447 * STRICKEN * APPLICATION of Non-Resident Attorney Jordan Wells to Appear Pro Hac Vice on behalf of Plaintiffs Annika Alliksoo, Clemente De La Cerda, Duncan Roy (Pro Hac Vice Fee - $400 Fee Paid, Receipt No. 0973-22820725) filed by Plaintiffs Annika Alliksoo, Clemente De La Cerda, Duncan Roy. (Attachments: # 1 Exhibit Cert of Good Standing, # 2 Exhibit Cert of Good Standing, # 3 Exhibit State Bar of CA registration, # 4 Exhibit G-64, # 5 Exhibit G-64 Proposed Order) (Pasquarella, Jennifer) ** DOCUMENT STRICKEN PURSUANT TO THE RESPONSE BY THE COURT TO NOTICE TO FILER OF DEFICIENCIES IN ELECTRONICALLY FILED DOCUMENTS FILED 12/3/2018 451 ** Modified on 12/3/2018 (gk). (Entered: 11/29/2018)
448 NOTICE of Deficiency in Electronically Filed Pro Hac Vice Application RE: APPLICATION of Non-Resident Attorney Jordan Wells to Appear Pro Hac Vice on behalf of Plaintiffs Annika Alliksoo, Clemente De La Cerda, Duncan Roy (Pro Hac Vice Fee - $400 Fee Paid, Receipt No.

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0973-22820725) 447 . The following error(s) was/were found: Local Rule 5-4.3.4 Application not hand-signed. There is no Gerardo Gonzalez. The only plaintiff in this matter is Christian Michel Varela. (lt) (Entered: 11/30/2018)
449 Corrected APPLICATION of Non-Resident Attorney Jordan Wells to Appear Pro Hac Vice on behalf of Plaintiffs Annika Alliksoo, Clemente De La Cerda, Duncan Roy (Pro Hac Vice Fee - $400.00 Previously Paid on 11/29/2018, Receipt No. 26DQPDJP) filed by Plaintiff Annika Alliksoo, Clemente De La Cerda, Duncan Roy. (Attachments: # 1 Exhibit, # 2 Exhibit, # 3 Exhibit, # 4 Exhibit, # 5 Proposed Order) (Pasquarella, Jennifer) (Entered: 11/30/2018)
450 NOTICE OF LODGING Proposed Pretrial Conference Order Plaintiffs Annika Alliksoo, Clemente De La Cerda, Duncan Roy. (Attachments: # 1 Proposed Order Joint Proposed Final Pretrial Conference Order)(Bansal, Jessica) (Entered: 11/30/2018)
451 RESPONSE BY THE COURT TO NOTICE TO FILER OF DEFICIENCIES IN ELECTRONICALLY FILED DOCUMENTS by Clerk RE: Pro Hac Vice Application filed 11/29/2018 447 . The document is stricken. (gk) (Entered: 12/03/2018)
452 NOTICE TO FILER OF DEFICIENCIES in Electronically Filed Documents RE: Memorandum of Contentions of Fact and Law 440 . The following error(s) was/were found: Local Rule 11-6 Memorandum/brief exceeds 25 pages. In response to this notice, the Court may: (1) order an amended or correct document to be filed; (2) order the document stricken; or (3) take other action as the Court deems appropriate. You need not take any action in response to this notice unless and until the Court directs you to do so. (gk) (Entered: 12/04/2018)
453 ORDER by Judge Andre Birotte Jr. Granting Application of NonResident Attorney Jordan Wells to Appear Pro Hac Vice on behalf of Plaintiffs, designating Jennifer Pasquarella as local counsel 449 . (gk) (Entered: 12/04/2018)
455 MINUTES OF Final Pretrial Conference held before Judge Andre Birotte Jr.: The Court, having conferred with counsel, allots 15 hours of trial time to each side, excluding openings and closings. Opening and closing statements must not exceed 50 minutes per side. Plaintiff shall have an additional 15 minutes for any rebuttal. Briefing concerning the protective order shall be due 1/4/2019 with any response due by 1/9/2019. The Court will then take up this issue at the beginning of trial. Counsel shall meet, confer, and file Deposition transcripts and designations no later than 1/8/2019. The Court will issue a ruling on Plaintiff's Request for Judicial Notice 439 before trial. On or before 1/4/2019, the Court will issue a minute order re remaining claims. The Court will continue to consider the proposed Final Pretrial Conference Order. Witnesses shall be

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excluded during trial. This action will likely trail behind other trials previously being held before this Court and will commence at the conclusion of those trials. Government counsel to advise the Court and opposing counsel regarding any issue regarding a Government Shutdown. Trial remains set for 1/15/2019 at 8:30 AM. Court Reporter: Chia Mei Jui. (gk) (Entered: 12/27/2018)
454 EX PARTE APPLICATION to Stay Case pending LAPSE OF APPROPRIATIONS filed by Federal Defendants Department of Homeland Security (DHS). (Attachments: # 1 Proposed Order) (Weintraub, Jacob) (Entered: 12/26/2018)
456 ORDER GRANTING EX PARTE APPLICATION FOR A STAY IN LIGHT OF LAPSE OF APPROPRIATIONS by Judge Andre Birotte Jr.: Defendants' ex parte application for a stay in light of lapse of appropriations 454 is hereby GRANTED. All deadlines in this matter are hereby STAYED and, when the funding has been approved and attorneys for the Department of Justice are permitted to resume their usual civil litigation functions, the deadlines will be extended commensurate with the duration of the lapse in appropriations. (gk) (Entered: 12/28/2018)
457 Notice of Appearance or Withdrawal of Counsel: for attorney Sylvia Torres-Guillen counsel for Plaintiffs Annika Alliksoo, Clemente De La Cerda, Duncan Roy, Christian Michel Varela. Adding Sylvia TorresGuillen as counsel of record for Plaintiffs for the reason indicated in the G-123 Notice. Filed by Attorney for Plaintiffs. (Attorney Sylvia TorresGuillen added to party Annika Alliksoo(pty:pla), Attorney Sylvia TorresGuillen added to party Clemente De La Cerda(pty:pla), Attorney Sylvia Torres-Guillen added to party Duncan Roy(pty:pla), Attorney Sylvia Torres-Guillen added to party Christian Michel Varela(pty:pla))(TorresGuillen, Sylvia) (Entered: 01/22/2019)
458 NOTICE OF APPROPRIATION OF FUNDS AND RESUMPTION OF CIVIL LITIGATION FUNCTIONS filed by Federal Defendants Department of Homeland Security (DHS). (Weintraub, Jacob) (Entered: 01/28/2019)
459 (IN CHAMBERS) ORDER SETTING TELEPHONIC STATUS CONFERENCE by Judge Andre Birotte Jr.: This Court, on its own motion, hereby sets this matter for a Telephonic Status Conference for Thursday, February 7, 2019, at 9:30 AM before Judge Andre Birotte Jr. IT IS SO ORDERED. THERE IS NO PDF DOCUMENT ASSOCIATED WITH THIS ENTRY. (cb) TEXT ONLY ENTRY (Entered: 01/30/2019)
460 STIPULATION for Bench Trial on 4/2/2019 filed by Plaintiffs Annika Alliksoo, Clemente De La Cerda, Duncan Roy, Christian Michel Varela. (Attachments: # 1 Proposed Order)(Pasquarella, Jennifer) (Entered: 02/04/2019)

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461 (IN CHAMBERS) ORDER CONTINUING TELEPHONIC STATUS CONFERENCE HEARING TIME by Judge Andre Birotte Jr.: This Court, on its own motion, hereby continues the Telphonic Status Conference hearing time from 9:30 AM to 11:00 AM, today, Thursday, February 7, 2019, before Judge Andre Birotte Jr. IT IS SO ORDERED.THERE IS NO PDF DOCUMENT ASSOCIATED WITH THIS ENTRY. (cb) TEXT ONLY ENTRY (Entered: 02/07/2019)
462 NOTICE OF LODGING filed PROPOSED ORDER GRANTING GONZALEZ PLAINTIFFS REQUEST FOR JUDICIAL NOTICE FOR TRIAL re Request for Judicial Notice, 439 (Attachments: # 1 Proposed Order)(Tajsar, Mohammad) (Entered: 02/07/2019)
463 MINUTES OF Telephonic Status Conference held before Judge Andre Birotte Jr.: The Court Trial date in the Gerardo Gonzalez v. Immigration and Customs Enforcement et al matter is continued to 5/7/2019 08:30 AM before Judge Andre Birotte Jr. The Court allots 16.5 hours of trial time to each side, excluding openings and closings. Court Reporter: Chia Mei Jui. (gk) (Entered: 02/07/2019)
464 Notice of Appearance or Withdrawal of Counsel: for attorney Peter J Eliasberg counsel for Plaintiffs Annika Alliksoo, Clemente De La Cerda, Duncan Roy, Christian Michel Varela. Peter Eliasberg is no longer counsel of record for the aforementioned party in this case for the reason indicated in the G-123 Notice. Filed by Attorney for Plaintiffs. (Eliasberg, Peter) (Entered: 02/21/2019)
465 Notice of Appearance or Withdrawal of Counsel: for attorney Ahilan T Arulanantham counsel for Plaintiffs Annika Alliksoo, Clemente De La Cerda, Duncan Roy, Christian Michel Varela. Ahilan Arulanantham is no longer counsel of record for the aforementioned party in this case for the reason indicated in the G-123 Notice. Filed by Attorney for Plaintiffs. (Arulanantham, Ahilan) (Entered: 02/21/2019)
466 Notice of Appearance or Withdrawal of Counsel: for attorney Cecillia D Wang counsel for Plaintiffs Annika Alliksoo, Clemente De La Cerda, Duncan Roy, Christian Michel Varela. Cecillia D. Wang is no longer counsel of record for the aforementioned party in this case for the reason indicated in the G-123 Notice. Filed by Plaintiffs Cecillia D. Wang. (Wang, Cecillia) (Entered: 02/21/2019)
467 Notice of Appearance or Withdrawal of Counsel: for attorney Cody H Wofsy counsel for Plaintiffs Annika Alliksoo, Clemente De La Cerda, Duncan Roy, Christian Michel Varela. Cody H. Wofsy is no longer counsel of record for the aforementioned party in this case for the reason indicated in the G-123 Notice. Filed by Plaintiffs Cody H. Wofsy. (Wofsy, Cody) (Entered: 02/21/2019)
468 Notice of Appearance or Withdrawal of Counsel: for attorney Spencer E W Amdur counsel for Plaintiffs Annika Alliksoo, Clemente De La Cerda,

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Duncan Roy, Christian Michel Varela. Spencer E. Amdur is no longer counsel of record for the aforementioned party in this case for the reason indicated in the G-123 Notice. Filed by Plaintiffs Spencer E. Amdur. (Amdur, Spencer) (Entered: 02/21/2019)
469 Notice of Appearance or Withdrawal of Counsel: for attorney Omar C Jadwat counsel for Plaintiffs Annika Alliksoo, Clemente De La Cerda, Duncan Roy, Christian Michel Varela. Omar C. Jadwat is no longer counsel of record for the aforementioned party in this case for the reason indicated in the G-123 Notice. Filed by Plaintiffs Omar C. Jadwat. (Jadwat, Omar) (Entered: 02/25/2019)
470 Notice of Withdrawal of Request for Judicial Notice, 439 filed by Plaintiff Annika Alliksoo, Clemente De La Cerda, Duncan Roy, Christian Michel Varela. (Pasquarella, Jennifer) (Entered: 04/05/2019)
471 Notice of Electronic Filing re Notice of Withdrawal 470 e-mailed to Oscar Bustos, bustos@employeejustice.law bounced due to 5.1.0 Unknown address error. The primary e-mail address associated with the attorney record has been deleted. Pursuant to Local Rules it is the attorneys obligation to maintain all personal contact information including e-mail address in the CM/ECF system. THERE IS NO PDF DOCUMENT ASSOCIATED WITH THIS ENTRY. (lmh) TEXT ONLY ENTRY (Entered: 04/05/2019)
472 REQUEST FOR JUDICIAL NOTICE FOR TRIAL filed by Plaintiffs Annika Alliksoo, Clemente De La Cerda, Duncan Roy, Christian Michel Varela. (Attachments: # 1 Exhibits A-G, # 2 Exhibits H-Q, # 3 Proposed Order)(Pasquarella, Jennifer) (Entered: 04/05/2019)
473 EX PARTE APPLICATION to file document (Exhibits 1 to 13 corresponding to the Declaration of Mohammad Tajsar in support of Gonzalez Plaintiffs' Motion to Lift Confidentiality Designations for Trial) under seal filed by Plaintiffs Annika Alliksoo, Clemente De La Cerda, Duncan Roy, Christian Michel Varela. (Attachments: # 1 Proposed Order)(Tajsar, Mohammad) (Entered: 04/16/2019)
474 SEALED DECLARATION IN SUPPORT OF EX PARTE APPLICATION to file document (Exhibits 1 to 13 corresponding to the Declaration of Mohammad Tajsar in support of Gonzalez Plaintiffs' Motion to Lift Confidentiality Designations for Trial) under seal 473 filed by Plaintiffs Annika Alliksoo, Clemente De La Cerda, Duncan Roy, Christian Michel Varela. (Attachments: # 1 Unredacted Document Exhibits 1-7, # 2 Unredacted Document Exhibits 8-10, # 3 Unredacted Document Exhibits 11-12, # 4 Unredacted Document Exhibits 13)(Tajsar, Mohammad) (Entered: 04/16/2019)
475 NOTICE OF MOTION AND MOTION to LIFT CONFIDENTIALITY DESIGNATIONS FOR TRIAL filed by Plaintiff Annika Alliksoo, Clemente De La Cerda, Duncan Roy, Christian Michel Varela.

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(Attachments: # 1 Motion to Lift Confidentiality Designations for Trial, # 2 Proposed Order) (Tajsar, Mohammad) (Entered: 04/16/2019)
476 ORDER GRANTING GONZALEZ PLANTIFFS EX PARTE APPLICATION FOR UNDER SEAL FILING by Judge Andre Birotte Jr: Good cause having been shown in Gonzalez Plaintiffs Ex Parte Application for Under Seal Filing, the application is hereby GRANTED. Exhibits 1 to 13 corresponding to the Declaration of Mohammad Tajsar in Support of Gonzalez Plaintiffs Motion to Lift Confidentiality Designations for Trial, are to be filed under seal. It is to ORDERED. 473 (yl) (Entered: 04/22/2019)
477 SEALED DOCUMENT (Exhibits 1 to 13 corresponding to the Declaration of Mohammad Tajsar in support of Gonzalez Plaintiffs' Motion to Lift Confidentiality Designations for Trial) re Order on Motion for Leave to File Document Under Seal, 476 filed by Plaintiffs Annika Alliksoo, Clemente De La Cerda, Duncan Roy, Christian Michel Varela. (Attachments: # 1 Exhibits 8-10, # 2 Exhibits 11-12, # 3 Exhibit 13, # 4 Proof of Service)(Tajsar, Mohammad) (Entered: 04/23/2019)
478 APPLICATION to file document certain deposition excerpts under seal filed by Plaintiffs Annika Alliksoo, Clemente De La Cerda, Duncan Roy, Christian Michel Varela. (Attachments: # 1 Proposed Order)(Bansal, Jessica) (Entered: 04/25/2019)
479 SEALED DECLARATION IN SUPPORT OF APPLICATION to file document certain deposition excerpts under seal 478 filed by Plaintiffs Annika Alliksoo, Clemente De La Cerda, Duncan Roy, Christian Michel Varela. (Attachments: # 1 Exhibit 1, # 2 Exhibit 2, # 3 Exhibit 3, # 4 Exhibit 4)(Bansal, Jessica) (Entered: 04/25/2019)
480 Second NOTICE OF MOTION AND MOTION to LIFT CONFIDENTIALITY DESIGNATIONS FOR TRIAL (Re Deposition Excerpts) filed by Plaintiffs Annika Alliksoo, Clemente De La Cerda, Duncan Roy, Christian Michel Varela. (Attachments: # 1 Gonzalez Plaintiffs' Second Motion To Lift Confidentiality Designations for Trial, # 2 Declaration of Jessica Karp Bansal, # 3 Proposed Order) (Bansal, Jessica) (Entered: 04/25/2019)
481 INDEX OF PLAINTIFFS' DEPOSITION DESIGNATIONS AND DEFENDANTS' OBJECTIONS AND COUNTER-DESIGNATIONS FOR TRIAL filed by Plaintiff Clemente De La Cerda (Attachments: # 1 Exhibit A, # 2 Exhibit B, # 3 Exhibit C, # 4 Exhibit D, # 5 Exhibit E, # 6 Exhibit F, # 7 Exhibit G, # 8 Exhibit H, # 9 Exhibit I, # 10 Exhibit J, # 11 Exhibit K, # 12 Exhibit L, # 13 Exhibit M, # 14 Exhibit N, # 15 Exhibit O, # 16 Exhibit P, # 17 Exhibit Q)(Bansal, Jessica) (Entered: 04/25/2019)
482 NOTICE OF LODGING Proposed Pretrial Conference Order Plaintiffs Annika Alliksoo, Clemente De La Cerda, Duncan Roy, Christian Michel

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Varela. (Attachments: # 1 Joint Proposed Final Pre-Trial Conference Order)(Bansal, Jessica) (Entered: 04/25/2019)
483 OPPOSITION to NOTICE OF MOTION AND MOTION to LIFT CONFIDENTIALITY DESIGNATIONS FOR TRIAL 475 filed by Objector Department of Homeland Security (DHS). (Attachments: # 1 Exhibit Redacted Version of Plaintiffs' Exhibit 1, # 2 Exhibit Redacted Version of Plaintiffs' Exhibit 2, # 3 Exhibit Redacted Version of Plaintiffs' Exhibit 3, # 4 Exhibit Redacted Version of Plaintiffs' Exhibit 4, # 5 Exhibit Redacted Version of Plaintiffs' Exhibit 5, # 6 Exhibit Redacted Version of Plaintiffs' Exhibit 6, # 7 Exhibit Redacted Version of Plaintiffs' Exhibit 7, # 8 Declaration Declaration of Nathalie R. Asher)(Inkeles, John) (Entered: 04/30/2019)
484 FINAL PRETRIAL CONFERENCE ORDER approved by Judge Andre Birotte Jr. (gk) (Entered: 05/02/2019)
485 ORDER GRANTING GONZALEZ PLAINTIFFS' APPLICATION FOR UNDER SEAL FILING OF CERTAIN DEPOSITION EXCERPTS by Judge Andre Birotte Jr.: The Gonzalez Plaintiffs' Application 478 is hereby GRANTED. Exhibits 1 to 4 to the Declaration of Jessica Karp Bansal in support of Gonzalez Plaintiffs' Application for Under Seal Filing of Certain Deposition Excerpts are hereby sealed pending resolution of Plaintiffs' Second Motion to Lift Confidentiality Designations for Trial. (gk) (Entered: 05/03/2019)
486 FINAL AMENDED JOINT Exhibit List filed by Plaintiffs Annika Alliksoo, Clemente De La Cerda, Duncan Roy, Christian Michel Varela.. (Pasquarella, Jennifer) (Entered: 05/03/2019)
487 SEALED DOCUMENT (Exhibits 1 to 4 to the Declaration of Jessica Karp Bansal in support of Gonzalez Plaintiffs' App for Under Seal Filing of Certain Deposition Excerpts) re Order on Motion for Leave to File Document Under Seal, 485 filed by Plaintiffs Annika Alliksoo, Clemente De La Cerda, Duncan Roy, Christian Michel Varela. (Attachments: # 1 Exhibit 2, # 2 Exhibit 3, # 3 Exhibit 4)(Pasquarella, Jennifer) (Entered: 05/03/2019)
488 NOTICE OF LODGING filed Amended Index of Plaintiffs' Deposition Designations and Defendants' Objections and Counter-Designations; Amended Excerpts of the Deposition of Patrick Nemeth re Miscellaneous Document, 481 (Attachments: # 1 Declaration of Jessica Karp Bansal, # 2 EXH A - Amended Index, # 3 EXH B - Revised Excerpts for Patrick Nemeth, # 4 EXH C - Errata for Alberto Garibay, # 5 EXH D - Errata for Brian Demore, # 6 EXH E - Errata for David Marin, # 7 EXH F - Errata for Kerry Kaufman, # 8 EXH G - Errata for Philip Miller)(Bansal, Jessica) (Entered: 05/06/2019)
489 NOTICE of Filing Clean Version of Amended Index of Plaintiffs' Deposition Designations and Defendants' Objections and Counter-

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Designations filed by Plaintiffs Annika Alliksoo, Clemente De La Cerda, Duncan Roy, Christian Michel Varela. (referenced in the Declaration of Jessica Karp Bansal at Dkt. 488-1) (Attachments: # 1 Final Amended Index of Plaintiffs' Deposition Designations and Defendants' Objections and Counter-Objections)(Bansal, Jessica) (Entered: 05/06/2019)
490 MINUTES OF COURT TRIAL (1st Day) held before Judge Andre Birotte Jr.: Opening statements made. Witneses called, sworn and testified. Exhibits identified and admitted. Bench Trial continued to 5/8/2019 08:45 AM before Judge Andre Birotte Jr. Court Reporter: Chia Mei Jui/Patricia Cuneo. (gk) (Entered: 05/08/2019)
492 MINUTES OF Court Trial (2nd day) held before Judge Andre Birotte Jr.: Witnesses called, sworn and testified. Exhibits identified and admitted. Bench Trial continued to 5/9/2019 08:45 AM before Judge Andre Birotte Jr. Court Reporter: Chia Mei Jui/Patricia Cuneo. (gk) (Entered: 05/09/2019)
491 Opposition Opposition re: Second NOTICE OF MOTION AND MOTION to LIFT CONFIDENTIALITY DESIGNATIONS FOR TRIAL (Re Deposition Excerpts) 480 filed by Objector Department of Homeland Security (DHS). (Attachments: # 1 Declaration Declaration of Kenneth Grantt, # 2 Declaration Declaration of Nathalie Asher)(Inkeles, John) (Entered: 05/09/2019)
493 MINUTES OF Court Trial (3rd day) held before Judge Andre Birotte Jr.: Witnesses called, sworn and testified. Exhibits identified and admitted. Bench Trial continued to 5/13/2019 08:45 AM before Judge Andre Birotte Jr. Court Reporter: Chia Mei Jui/Patricia Cuneo. (gk) (Entered: 05/10/2019)
494 TRANSCRIPT ORDER as to Plaintiffs Annika Alliksoo, Clemente De La Cerda, Duncan Roy, Christian Michel Varela for Court Reporter. Court will contact Sandra Kang at skang@aclusocal.org with further instructions regarding this order. Transcript preparation will not begin until payment has been satisfied with the court reporter. (Pasquarella, Jennifer) (Entered: 05/10/2019)
495 NOTICE of Filing Supplement to Plaintiffs' Pending Trial Motion to Admit Plaintiffs' Deposition Designations and to Exclude Defendants' Counter-Designated Testimony Except Where Permitted by FRCP 32(a)(6) filed by Plaintiffs Annika Alliksoo, Clemente De La Cerda, Duncan Roy, Christian Michel Varela. (Attachments: # 1 Supplement to Plaintiffs' Pending Trial Motion to Admit Plaintiffs' Deposition Designations and to Exclude Defendants' Counter-Designated Testimony Except Where Permitted by FRCP 32(a)(6), # 2 Declaration of Jessica Karp Bansal, # 3 Exhibit A, # 4 Exhibit B, # 5 Exhibit C)(Bansal, Jessica) (Entered: 05/10/2019)

05/12/2019 05/13/2019 05/14/2019 05/14/2019 05/15/2019 05/16/2019
05/16/2019

496 NOTICE of Filing Supplemental Declaration of Jessica Karp Bansal in Support of Supplement to Plaintiffs' Pending Trial Motion to Admit Plaintiffs' Deposition Designations and to Exclude Defendants' CounterDesignated Testimony Except Where Permitted by FRCP 32(a)(6) filed by Plaintiffs Annika Alliksoo, Clemente De La Cerda, Duncan Roy, Christian Michel Varela. (Attachments: # 1 Declaration of Jessica Karp Bansal, # 2 Exhibit A, # 3 Exhibit B)(Bansal, Jessica) (Entered: 05/12/2019)
497 MINUTES OF Court Trial (4th day) held before Judge Andre Birotte Jr.: Witnesses called, sworn and testified. Exhibits identified and admitted. Plaintiff(s) rest. Motion for Judgment/Directed Verdict by Defendants is submitted. Bench Trial continued to 5/14/2019 09:00 AM before Judge Andre Birotte Jr. Court Reporter: Chia Mei Jui/Patricia Cuneo. (gk) (Entered: 05/14/2019)
498 NOTICE OF FILING SECOND AMENDED INDEX OF PLAINTIFFS DEPOSITION DESIGNATIONS AND DEFENDANTS OBJECTIONS AND COUNTER-DESIGNATIONS AND AMENDED EXCERPTS FROM THE DECEMBER 2, 2015 DEPOSITION OF BRIAN DEMORE filed by Plaintiffs Annika Alliksoo, Clemente De La Cerda, Duncan Roy, Christian Michel Varela. (Attachments: # 1 Second Amended Index, # 2 Amended Excerpts from the December 2, 2015 Deposition of Brian DeMore)(Bansal, Jessica) (Entered: 05/14/2019)
499 MINUTES OF Court Trial (5th day) held before Judge Andre Birotte Jr.: Witnesses called, sworn and testified. Exhibits identified and admitted. Bench Trial continued to 5/15/2019 09:00 AM before Judge Andre Birotte Jr. Court Reporter: Chia Mei Jui/Patricia Cuneo. (gk) (Entered: 05/15/2019)
500 MINUTES OF Court Trial (6th day) held before Judge Andre Birotte Jr.: Witnesses called, sworn and testified. Exhibits identified and admitted. Defendant(s) rest. Bench Trial continued to 5/16/2019 09:00 AM before Judge Andre Birotte Jr. Court Reporter: Chia Mei Jui/Patricia Cuneo. (gk) (Entered: 05/16/2019)
501 MINUTES OF Court Trial (7th Day) held and completed before Judge Andre Birotte Jr.: Exhibits identified and admitted. Closing arguments made. Filed Witness and Exhibit Lists. Findings, Conclusions of Law & Judgment to be prepared by plaintiff(s)/defendant(s). Case submitted. Briefs to be filed by 30 days from today. Clerk reviewed admitted exhibits with counsel to be submitted to the Jury/Court for deliberation/findings. Counsel stipulate to the return of exhibits upon the conclusion of trial. Exhibit Release Form prepared and filed. Court Reporter: Chia Mei Jui. (gk) (Entered: 05/17/2019)
502 RECEIPT FOR RELEASE OF EXHIBITS to Counsel Upon Verdict/Judgment at Trial; Pursuant to stipulation of counsel and/or by

05/16/2019 06/06/2019 06/07/2019 06/17/2019 06/17/2019
06/17/2019 06/18/2019
06/18/2019
06/20/2019

Order of the Court, all exhibits listed on the joint exhibits list are returned to counsel for respective party(ies). (gk) (Entered: 05/17/2019)
503 LIST OF EXHIBITS AND WITNESSES at trial. (gk) (Entered: 05/17/2019)
504 NOTICE OF FILING EXHIBIT 126-B filed by PLAINTIFFS Annika Alliksoo, Clemente De La Cerda, Duncan Roy, Christian Michel Varela. (Attachments: # 1 EXHIBIT 126-B)(Bansal, Jessica) (Entered: 06/06/2019)
505 NOTICE of Filing Exhibit filed by Federal Defendants Department of Homeland Security (DHS). (Attachments: # 1 Exhibit 269)(Inkeles, John) (Entered: 06/07/2019)
506 TRIAL BRIEF filed by Federal Defendants Department of Homeland Security (DHS).. (Attachments: # 1 Proposed Findings of Fact and Conclusions of Law)(Weintraub, Jacob) (Entered: 06/17/2019)
507 TRIAL BRIEF filed by PLAINTIFFS Annika Alliksoo, Clemente De La Cerda, Duncan Roy, Christian Michel Varela.. (Attachments: # 1 SEALED ATTACHMENT - Declaration DECLARATION OF JESSICA KARP BANSAL)(Bansal, Jessica) ** ATTACHMENT IS STRICKEN AND SEALED PURSUANT TO THE ORDER OF 6/20/2019 511 ** Modified on 6/21/2019 (gk). (Entered: 06/17/2019)
508 NOTICE filed by Plaintiffs Annika Alliksoo, Clemente De La Cerda, Duncan Roy, Christian Michel Varela. (Attachments: # 1 Index of Most Relevant Sections of Plaintiffs' Admitted Exhibits)(Bansal, Jessica) (Entered: 06/17/2019)
509 EX PARTE APPLICATION for Order for To Remove from Docket or, Alternatively, to Seal Dkt. 507-1 filed by PLAINTIFFS Annika Alliksoo, Clemente De La Cerda, Duncan Roy, Christian Michel Varela. (Attachments: # 1 Declaration of Jessica Karp Bansal in Support of Ex Parte Application, # 2 Proposed Order Granting Ex Parte Application) (Bansal, Jessica) (Entered: 06/18/2019)
510 NOTICE OF ERRATA filed by Plaintiffs Annika Alliksoo, Clemente De La Cerda, Duncan Roy, Christian Michel Varela. correcting Trial Brief 507 (Attachments: # 1 DECLARATION OF JESSICA KARP BANSAL IN SUPPORT OF TRIAL BRIEF WITH CORRECTED EXHIBITS, # 2 EXHIBIT A, # 3 EXHIBIT B, # 4 EXHIBIT C, # 5 EXHIBIT D, # 6 EXHIBIT E, # 7 EXHIBIT F)(Bansal, Jessica) (Entered: 06/18/2019)
511 ORDER GRANTING GONZALEZ PLAINTIFFS' EX PARTE APPLICATION TO REMOVE FROM DOCKET OR, ALTERNATIVELY, TO SEAL DKT. 507-1 by Judge Andre Birotte Jr.: Plaintiffs' Ex Parte Application to Remove From Docket or, Alternatively, to Seal Dkt. 507-1 509 is GRANTED. The Declaration of

06/21/2019 06/21/2019 06/27/2019 06/28/2019 07/01/2019 07/02/2019
07/17/2019

Jessica Karp Bansal and accompanying exhibits filed at Dkt. 507-1 will be stricken from the docket and SEALED in the CM/ECF system. (gk) (Entered: 06/21/2019)
512 NOTICE OF MOTION AND MOTION for Permanent Injunction filed by Plaintiffs Annika Alliksoo, Clemente De La Cerda, Duncan Roy, Christian Michel Varela. Motion set for hearing on 8/16/2019 at 10:00 AM before Judge Andre Birotte Jr. (Attachments: # 1 Memorandum, # 2 Declaration of Mark Fleming, # 3 Exhibits 1-2, # 4 Proposed Order) (Bansal, Jessica) (Entered: 06/21/2019)
513 Joint STIPULATION for Order RE: BRIEFING SCHEDULE FOR PLAINTIFFS' MOTION FOR PERMANENT INJUNCTION AS TO CLAIMS DECIDED AT SUMMARY JUDGMENT filed by Plaintiffs Annika Alliksoo, Clemente De La Cerda, Duncan Roy, Christian Michel Varela. (Attachments: # 1 Proposed Order)(Bansal, Jessica) (Entered: 06/21/2019)
514 NOTICE OF LODGING filed re Bench Trial - Completed (Court Decision),, 501 (Attachments: # 1 AMENDED PROPOSED FINDINGS OF FACT AND CONCLUSIONS OF LAW, # 2 PROPOSED POSTTRIAL JUDGMENT)(Bansal, Jessica) (Entered: 06/27/2019)
515 EX PARTE APPLICATION for Leave to file Response to Defendants' Post-Trial Brief filed by Plaintiffs Annika Alliksoo, Clemente De La Cerda, Duncan Roy, Christian Michel Varela. (Attachments: # 1 Declaration of Jessica Karp Bansal, # 2 Exhibits, # 3 Proposed Order Granting Ex Parte Application, # 4 Proposed Response to Defendants' Post-Trial Brief) (Bansal, Jessica) (Entered: 06/28/2019)
516 OPPOSITION to EX PARTE APPLICATION for Leave to file Response to Defendants' Post-Trial Brief 515 filed by Objector Department of Homeland Security (DHS). (Inkeles, John) (Entered: 07/01/2019)
517 ORDER GRANTING JOINT STIPULATION RE BRIEFING SCHEDULE FOR PLAINTIFFS' MOTION FOR PERMANENT INJUNCTION AS TO CLAIMS DECIDED AT SUMMARY JUDGMENT by Judge Andre Birotte Jr.: Pursuant to the Stipulation of the parties 513 , the following briefing schedule shall apply to Gonzalez Plaintiffs' Motion for Permanent Injunction as to Claims Decided at Summary Judgment: Plaintiffs' Motion 6/21/2019; Defendants' Response 7/19/2019; Plaintiffs' Reply 8/2/2019; Hearing Date 8/16/2019. (gk) (Entered: 07/03/2019)
518 TRANSCRIPT for proceedings held on 12/21/18, 8:55 A.M. Court Reporter/Electronic Court Recorder: Chia Mei Jui, CSR, cmjui.csr@gmail.com, Transcript may be viewed at the court public terminal or purchased through the Court Reporter/Electronic Court Recorder before the deadline for Release of Transcript Restriction. After that date it may be obtained through COURT REPORTER: Chia Mei Jui,

07/17/2019 07/17/2019
07/17/2019 07/17/2019
07/17/2019

CSR, cmjui.csr@gmail.com, or PACER. Notice of Intent to Redact due within 7 days of this date. Redaction Request due 8/7/2019. Redacted Transcript Deadline set for 8/19/2019. Release of Transcript Restriction set for 10/15/2019. (Jui, Chia) (Entered: 07/17/2019)
519 NOTICE OF FILING TRANSCRIPT filed for proceedings 12/21/18, 8:55 A.M. re Transcript 518 THERE IS NO PDF DOCUMENT ASSOCIATED WITH THIS ENTRY. (Jui, Chia) TEXT ONLY ENTRY (Entered: 07/17/2019)
520 TRANSCRIPT for proceedings held on 2/7/19, 11:09 A.M. Court Reporter/Electronic Court Recorder: Chia Mei Jui, CSR, cmjui.csr@gmail.com, Transcript may be viewed at the court public terminal or purchased through the Court Reporter/Electronic Court Recorder before the deadline for Release of Transcript Restriction. After that date it may be obtained through COURT REPORTER: Chia Mei Jui, CSR, cmjui.csr@gmail.com, or PACER. Notice of Intent to Redact due within 7 days of this date. Redaction Request due 8/7/2019. Redacted Transcript Deadline set for 8/19/2019. Release of Transcript Restriction set for 10/15/2019. (Jui, Chia) (Entered: 07/17/2019)
521 NOTICE OF FILING TRANSCRIPT filed for proceedings 2/7/19, 11:09 A.M re Transcript 520 THERE IS NO PDF DOCUMENT ASSOCIATED WITH THIS ENTRY. (Jui, Chia) TEXT ONLY ENTRY (Entered: 07/17/2019)
522 TRANSCRIPT for proceedings held on 5/7/19, 8:42 A.M. Court Reporter/Electronic Court Recorder: Chia Mei Jui, CSR, cmjui.csr@gmail.com, Transcript may be viewed at the court public terminal or purchased through the Court Reporter/Electronic Court Recorder before the deadline for Release of Transcript Restriction. After that date it may be obtained through COURT REPORTER: Chia Mei Jui, CSR, cmjui.csr@gmail.com, or PACER. Notice of Intent to Redact due within 7 days of this date. Redaction Request due 8/7/2019. Redacted Transcript Deadline set for 8/19/2019. Release of Transcript Restriction set for 10/15/2019. (Jui, Chia) (Entered: 07/17/2019)
523 TRANSCRIPT for proceedings held on 5/8/19, 9:04 A.M. Court Reporter/Electronic Court Recorder: Chia Mei Jui, CSR, cmjui.csr@gmail.com, Transcript may be viewed at the court public terminal or purchased through the Court Reporter/Electronic Court Recorder before the deadline for Release of Transcript Restriction. After that date it may be obtained through COURT REPORTER: Chia Mei Jui, CSR, cmjui.csr@gmail.com, or PACER. Notice of Intent to Redact due within 7 days of this date. Redaction Request due 8/7/2019. Redacted Transcript Deadline set for 8/19/2019. Release of Transcript Restriction set for 10/15/2019. (Jui, Chia) (Entered: 07/17/2019)

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524 TRANSCRIPT for proceedings held on 5/9/19, 8:55 A.M. Court Reporter/Electronic Court Recorder: Chia Mei Jui, CSR, cmjui.csr@gmail.com, Transcript may be viewed at the court public terminal or purchased through the Court Reporter/Electronic Court Recorder before the deadline for Release of Transcript Restriction. After that date it may be obtained through COURT REPORTER: Chia Mei Jui, CSR, cmjui.csr@gmail.com, or PACER. Notice of Intent to Redact due within 7 days of this date. Redaction Request due 8/7/2019. Redacted Transcript Deadline set for 8/19/2019. Release of Transcript Restriction set for 10/15/2019. (Jui, Chia) (Entered: 07/17/2019)
525 TRANSCRIPT for proceedings held on 5/13/19, 8:53 A.M. Court Reporter/Electronic Court Recorder: Chia Mei Jui, CSR, cmjui.csr@gmail.com, Transcript may be viewed at the court public terminal or purchased through the Court Reporter/Electronic Court Recorder before the deadline for Release of Transcript Restriction. After that date it may be obtained through COURT REPORTER: Chia Mei Jui, CSR, cmjui.csr@gmail.com, or PACER. Notice of Intent to Redact due within 7 days of this date. Redaction Request due 8/7/2019. Redacted Transcript Deadline set for 8/19/2019. Release of Transcript Restriction set for 10/15/2019. (Jui, Chia) (Entered: 07/17/2019)
526 TRANSCRIPT for proceedings held on 5/14/19, 9:05 A.M. Court Reporter/Electronic Court Recorder: Chia Mei Jui, CSR, cmjui.csr@gmail.com, Transcript may be viewed at the court public terminal or purchased through the Court Reporter/Electronic Court Recorder before the deadline for Release of Transcript Restriction. After that date it may be obtained through COURT REPORTER: Chia Mei Jui, CSR, cmjui.csr@gmail.com, or PACER. Notice of Intent to Redact due within 7 days of this date. Redaction Request due 8/7/2019. Redacted Transcript Deadline set for 8/19/2019. Release of Transcript Restriction set for 10/15/2019. (Jui, Chia) (Entered: 07/17/2019)
527 TRANSCRIPT for proceedings held on 5/15/19, 9:01 A.M. Court Reporter/Electronic Court Recorder: Chia Mei Jui, CSR, cmjui.csr@gmail.com, Transcript may be viewed at the court public terminal or purchased through the Court Reporter/Electronic Court Recorder before the deadline for Release of Transcript Restriction. After that date it may be obtained through COURT REPORTER: Chia Mei Jui, CSR, cmjui.csr@gmail.com, or PACER. Notice of Intent to Redact due within 7 days of this date. Redaction Request due 8/7/2019. Redacted Transcript Deadline set for 8/19/2019. Release of Transcript Restriction set for 10/15/2019. (Jui, Chia) (Entered: 07/17/2019)
528 TRANSCRIPT for proceedings held on 5/16/19, 9:08 A.M. Court Reporter/Electronic Court Recorder: Chia Mei Jui, CSR, cmjui.csr@gmail.com, Transcript may be viewed at the court public terminal or purchased through the Court Reporter/Electronic Court

07/17/2019 07/17/2019
07/19/2019 07/22/2019 07/23/2019 08/01/2019

Recorder before the deadline for Release of Transcript Restriction. After that date it may be obtained through COURT REPORTER: Chia Mei Jui, CSR, cmjui.csr@gmail.com, or PACER. Notice of Intent to Redact due within 7 days of this date. Redaction Request due 8/7/2019. Redacted Transcript Deadline set for 8/19/2019. Release of Transcript Restriction set for 10/15/2019. (Jui, Chia) (Entered: 07/17/2019)
529 NOTICE OF FILING TRANSCRIPT filed for proceedings 5/7/19, 8:42 A.M.; 5/8/19, 9:04 A.M.; 5/9/19, 8:55 A.M.; 5/13/19, 8:53 A.M.; 5/14/19, 9:05 A.M.; 5/15/19, 9:01 A.M.; 5/16/19, 9:08 A.M. re Transcript 528 , 524 , 525 , 527 , 523 , 522 , 526 THERE IS NO PDF DOCUMENT ASSOCIATED WITH THIS ENTRY. (Jui, Chia) TEXT ONLY ENTRY (Entered: 07/17/2019)
532 ORDER GRANTING GONZALEZ PLAINTIFFS' EX PARTE APPLICATION FOR LEAVE TO FILE RESPONSE TO DEFENDANTS' POST-TRIAL BRIEF by Judge Andre Birotte Jr.: IT IS ORDERED granting Gonzalez Plaintiffs' Application for Leave to File Response to Defendants' Post-Trial Brief 515 . IT IS FURTHER ORDERED that Plaintiffs' four-page Proposed Response to Defendants' Post-Trial Brief, which was lodged with Plaintiffs' Application for Leave to File Response to Defendants Post-Trial Brief, shall be filed forthwith. (gk) (Entered: 07/18/2019)
533 OPPOSITION to NOTICE OF MOTION AND MOTION for Permanent Injunction 512 filed by Objector Department of Homeland Security (DHS). (Attachments: # 1 Declaration of Jeffrey A. Wilson)(Weintraub, Jacob) (Entered: 07/19/2019)
534 STIPULATION to Continue Trial and Pretrial Dates and Deadlines filed by Plaintiffs Annika Alliksoo, Clemente De La Cerda, Duncan Roy. (Attachments: # 1 Proposed Order)(Litt, Barrett) (Entered: 07/22/2019)
535 ORDER RE STIPULATION TO CONTINUE TRIAL AND PRETRIAL DEADLINES by Judge Andre Birotte Jr.: Upon Stipulation 534 , the Court sets the following new trial and pretrial deadlines: Jury Trial set for 12/10/2019 08:30 AM before Judge Andre Birotte Jr. Final Pretrial Conference set for 11/22/2019 11:00 AM before Judge Andre Birotte Jr. First Round of Pretrial Filings due by 10/31/2019. Second Round of Pretrial Filings due by 11/7/2019. (gk) (Entered: 07/24/2019)
536 NOTICE of Change of Attorney Business or Contact Information: for attorney Jessica Karp Bansal counsel for Plaintiffs Annika Alliksoo, Clemente De La Cerda, Duncan Roy, Christian Michel Varela. Changing firm name to ACLU Foundation of Southern California. Changing e-mail to jbansal@aclusocal.org. Filed by Plaintiffs Annika Alliksoo, Clemente De La Cerda, Duncan Roy, Christian Michel Varela. (Bansal, Jessica) (Entered: 08/01/2019)

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537 RESPONSE IN SUPPORT of NOTICE OF MOTION AND MOTION for Permanent Injunction 512 filed by Plaintiffs Annika Alliksoo, Clemente De La Cerda, Duncan Roy, Christian Michel Varela. (Bansal, Jessica) (Entered: 08/02/2019)
538 (IN CHAMBERS) ORDER TAKING GONZALEZ PLANTIFFS' MOTION FOR PERMANENT INJUNCTION AS TO CLAIMS DECIDED AT SUMMARY JUDGMENT (DKT. [ 512 ]) UNDER SUBMISSION by Judge Andre Birotte Jr.: The Court has considered the matters raised with respect to the Motion and has concluded that pursuant to Local Rule 7.15, the matter can be decided without oral argument. The Court advises counsel that the Motion, noticed for hearing on August 16, 2019, has been taken under submission and off its motion calendar. No appearance by counsel is necessary. THERE IS NO PDF DOCUMENT ASSOCIATED WITH THIS ENTRY. (cb) TEXT ONLY ENTRY (Entered: 08/13/2019)
539 TRANSCRIPT for proceedings held on May 7, 2019 at 1:04 p.m. Court Reporter: Pat Cuneo CSR 1600, www.patcuneo.com. Transcript may be viewed at the court public terminal or purchased through the Court Reporter before the deadline for Release of Transcript Restriction. After that date it may be obtained through PACER. Notice of Intent to Redact due within 7 days of this date. Redaction Request due 9/5/2019. Redacted Transcript Deadline set for 9/16/2019. Release of Transcript Restriction set for 11/13/2019. (Cuneo, Patricia) (Entered: 08/15/2019)
540 TRANSCRIPT for proceedings held on May 8, 2019 at 1:30 p.m. Court Reporter: Pat Cuneo CSR 1600, www.patcuneo.com. Transcript may be viewed at the court public terminal or purchased through the Court Reporter before the deadline for Release of Transcript Restriction. After that date it may be obtained through PACER. Notice of Intent to Redact due within 7 days of this date. Redaction Request due 9/5/2019. Redacted Transcript Deadline set for 9/16/2019. Release of Transcript Restriction set for 11/13/2019. (Cuneo, Patricia) (Entered: 08/15/2019)
541 TRANSCRIPT for proceedings held on May 9, 2019 at 1:33 p.m. Court Reporter: Pat Cuneo CSR 1600, www.patcuneo.com. Transcript may be viewed at the court public terminal or purchased through the Court Reporter before the deadline for Release of Transcript Restriction. After that date it may be obtained through PACER. Notice of Intent to Redact due within 7 days of this date. Redaction Request due 9/5/2019. Redacted Transcript Deadline set for 9/16/2019. Release of Transcript Restriction set for 11/13/2019. (Cuneo, Patricia) (Entered: 08/15/2019)
542 TRANSCRIPT for proceedings held on May 13, 2019 at 1:51 p.m. Court Reporter: Pat Cuneo CSR 1600, www.patcuneo.com. Transcript may be viewed at the court public terminal or purchased through the Court Reporter before the deadline for Release of Transcript Restriction. After that date it may be obtained through PACER. Notice of Intent to Redact

08/15/2019
08/15/2019
08/15/2019 09/16/2019 09/16/2019 09/27/2019 09/27/2019

due within 7 days of this date. Redaction Request due 9/5/2019. Redacted Transcript Deadline set for 9/16/2019. Release of Transcript Restriction set for 11/13/2019. (Cuneo, Patricia) (Entered: 08/15/2019)
543 TRANSCRIPT for proceedings held on May 14, 2019 at 1:50 p.m. Court Reporter: Pat Cuneo CSR 1600, www.patcuneo.com. Transcript may be viewed at the court public terminal or purchased through the Court Reporter before the deadline for Release of Transcript Restriction. After that date it may be obtained through PACER. Notice of Intent to Redact due within 7 days of this date. Redaction Request due 9/5/2019. Redacted Transcript Deadline set for 9/16/2019. Release of Transcript Restriction set for 11/13/2019. (Cuneo, Patricia) (Entered: 08/15/2019)
544 TRANSCRIPT for proceedings held on May 15, 2019 at 12:33 p.m. Court Reporter: PAT CUNEO CSR 1600, www.patcuneo.com. Transcript may be viewed at the court public terminal or purchased through the Court Reporter before the deadline for Release of Transcript Restriction. After that date it may be obtained through PACER. Notice of Intent to Redact due within 7 days of this date. Redaction Request due 9/5/2019. Redacted Transcript Deadline set for 9/16/2019. Release of Transcript Restriction set for 11/13/2019. (Cuneo, Patricia) (Entered: 08/15/2019)
545 NOTICE OF FILING TRANSCRIPT filed for proceedings May 7, 2019 at 1:04 p.m.; May 8, 2019 at 1:30 p.m.; May 9, 2019 at 1:33 p.m.; May 13, 2019 at 1:51 p.m.; May 14, 2019 at 1:50 p.m.; and May 15, 2019 at 12:22 p.m. re Transcript 540 , 541 , 542 , 539 , 543 , 544 THERE IS NO PDF DOCUMENT ASSOCIATED WITH THIS ENTRY. (Cuneo, Patricia) TEXT ONLY ENTRY (Entered: 08/15/2019)
546 MINUTES (IN CHAMBERS) Order Denying Ex Parte Application for Sanctions by Judge Andre Birotte Jr.: The circumstances here leading to Defendants' untimely filing do not warrant the imposition of sanctions. Accordingly, the Gonzalez Plaintiffs' Ex Parte Application for Sanctions against Federal Defendants 444 is DENIED. Court Reporter: N/A. (gk) (Entered: 09/17/2019)
547 MINUTES (IN CHAMBERS) Order Denying Ex Parte Application to File Surreply re: Continue Trial and Pretrial Deadlines by Judge Andre Birotte Jr.: The Court, having considered Gonzalez Plaintiff's Ex Parte Application for Leave to file Surreply 420 , denies the motion as moot, having already determined to deny further continuance of trial and pretrial deadlines. Court Reporter: N/A. (gk) (Entered: 09/17/2019)
548 FINDINGS OF FACT AND CONCLUSIONS OF LAW signed by Judge Andre Birotte Jr. Plaintiffs shall submit a Proposed Judgment within 14 days of the issuance of this order. See document for details. (gk) (Entered: 09/27/2019)
549 MINUTES (IN CHAMBERS) Order Denying Plaintiffs' Motion for a Permanent Injunction Re: Claims Resolved at Summary Judgment by

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Judge Andre Birotte Jr.: Plaintiffs filed a Motion for a Permanent Injunction against ICE's issuance of "foreign-born no match" detainers 512 . Now Plaintiffs move for a Permanent Injunction, arguing members of Probable Cause and Statutory Subclasses continue to be subject, respectively, to arrests pursuant to detainers based solely on evidence of foreign birth and an absence of information in DHS databases and to warrantless arrest without any individualized assessment of flight risk. Plaintiffs arguments fail to persuade the Court that the Subclasses addressed in its Order re: Summary Judgment faces the threat of continuing violations. Plaintiffs' Motion for a Permanent Injunction As To Claims Decided at Summary Judgment is DENIED. See document for further details. Court Reporter: N/A. (gk) (Entered: 09/27/2019)
550 MINUTES (IN CHAMBERS) Order Denying Defendants' Motion for Judgment by Judge Andre Birotte Jr.: On 5/7/2019, the Court held a bench trial in this case. On 5/13/2019, Defendants moved for judgment during the trial. The Court took the motion under submission. On 9/27/2019, the Court issued its Findings of Facts and Conclusions of Law in this matter. For the reasons stated in the Court's Order, Defendants' Motion is DENIED. Court Reporter: N/A. (gk) (Entered: 09/27/2019)
551 STIPULATION to Continue Trial and Pretrial Dates and Deadlines filed by Plaintiffs Annika Alliksoo, Clemente De La Cerda, Duncan Roy. (Attachments: # 1 Proposed Order)(Battles, Lindsay) (Entered: 10/09/2019)
552 NOTICE OF LODGING filed Proposed Judgment re Findings of Fact & Conclusions of Law 548 (Attachments: # 1 Proposed Order Gonzalez Plaintiffs' Proposed Judgment, # 2 Declaration Declaration of Graciela Martinez with Exhibits)(Bansal, Jessica) (Entered: 10/11/2019)
553 ORDER RE STIPULATION TO CONTINUE TRIAL AND PRETRIAL DEADLINES by Judge Andre Birotte Jr. The Court sets a status conference for 11/25/2019 during which the parties shall advise the court of the status of the settlement. Pretrial conference 7/14/20 at 11:00 a.m., Trial 8/11/2020 at 8:30 a.m. (yl) (Entered: 10/17/2019)
554 **AMENDED** ORDER RE STIPULATION TO CONTINUE TRIAL AND PRETRIAL DEADLINES by Judge Andre Birotte Jr. *Status Conference is set for 11/22/2019 at 10:00 AM before Judge Andre Birotte Jr.* (SEE ORDER FOR FURTHER DETAILS) (yl) (Entered: 10/17/2019)
555 EX PARTE APPLICATION for Leave to file response to proposed judgment and accompanying documents filed by Federal Defendants Department of Homeland Security (DHS). (Attachments: # 1 Declaration, # 2 Proposed Order) (Weintraub, Jacob) (Entered: 10/18/2019)

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556 NOTICE of Errata filed by Federal Defendants Department of Homeland Security (DHS). (Attachments: # 1 Proposed Order CORRECTED Proposed Order)(Weintraub, Jacob) (Entered: 10/18/2019)
557 OPPOSITION to re: EX PARTE APPLICATION for Leave to file response to proposed judgment and accompanying documents 555 filed by Plaintiffs Annika Alliksoo, Clemente De La Cerda, Duncan Roy, Christian Michel Varela. (Pasquarella, Jennifer) (Entered: 10/21/2019)
558 ORDER GRANTING EX PARTE APPLICATION FOR LEAVE TO RESPOND TO PROPOSED JUDGMENT AND ACCOMPANYING DOCUMENTS by Judge Andre Birotte Jr: Based on the pleadings, and for good cause shown, Defendants Ex Parte Application for leave to respond to Plaintiffs Proposed Judgment and accompanying documents (Dkt. Nos. 552, 552-1, 552-2) is hereby GRANTED. (yl) (Entered: 10/25/2019)
559 TEXT ONLY ENTRY ORDER by Judge Andre Birotte Jr.: In light of the federal holiday of Veterans Day on November 11, 2019, the Court hereby amends its October 24, 2019 Order 558 , and ORDERS that Plaintiffs reply brief be filed on or before November 12, 2019. THERE IS NO PDF DOCUMENT ASSOCIATED WITH THIS ENTRY. (vv) (Entered: 10/31/2019)
560 MEMORANDUM in Opposition to Plaintiffs Proposed Judgment [ECF No. 552-1] filed by Objector Department of Homeland Security (DHS). (Attachments: # 1 Exhibit Ex. A -- Defendants' Proposed Judgment)(Inkeles, John) (Entered: 11/04/2019)
561 RESPONSE IN SUPPORT OF PLAINTIFFS' PROPOSED JUDGEMENT filed by Plaintiffs Annika Alliksoo, Clemente De La Cerda, Duncan Roy, Christian Michel Varela. (Attachments: # 1 Declaration of Chelsea Bell, # 2 Declaration of Graciela Martinez, # 3 Declaration of Jennifer Pasquarella, # 4 Declaration of Jessica Karp Bansal)(Pasquarella, Jennifer) (Entered: 11/12/2019)
562 NOTICE IN ACCORDANCE WITH FED. R. CIV. P. 12(h)(3) filed by Federal Defendants Department of Homeland Security (DHS). (Attachments: # 1 Exhibit Gonzalez ECF No. 61, # 2 Exhibit Gonzalez ECF No. 63, # 3 Proposed Judgment (Updated))(Weintraub, Jacob) (Entered: 11/18/2019)
563 STIPULATION to Continue November 22, 2019 Status Conference filed by Defendants Leroy D Baca, County of Los Angeles. (Attachments: # 1 Proposed Order Taking Off Calendar November 22, 2019 Status Conference)(Attorney Andrew I Baum added to party Leroy D Baca(pty:dft), Attorney Andrew I Baum added to party County of Los Angeles(pty:dft))(Baum, Andrew) (Entered: 11/19/2019)

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564 ORDER CONTINUING 11/22/2019 STATUS CONFERENCE by Judge Andre Birotte Jr.: Upon Stipulation 563 , the Status Conference regarding the Duncan Roy matter is hereby continued to 2/7/2020 10:00 AM before Judge Andre Birotte Jr. (gk) (Entered: 11/21/2019)
565 NOTICE SUPPLEMENTAL NOTICE AND REQUEST FOR BRIEFING SCHEDULE filed by Federal Defendants Department of Homeland Security (DHS). (Attachments: # 1 Declaration Declaration of J. Max Weintraub, # 2 Proposed Order)(Weintraub, Jacob) (Entered: 11/25/2019)
566 RESPONSE filed by Plaintiffs Annika Alliksoo, Clemente De La Cerda, Duncan Roy, Christian Michel Varelato Notice (Other) 565 (Pasquarella, Jennifer) (Entered: 11/26/2019)
567 NOTICE in support of Plaintiffs' Proposed Judgment filed by Plaintiffs Annika Alliksoo, Clemente De La Cerda, Duncan Roy, Christian Michel Varela. (Attachments: # 1 Declaration McKinney Declaration, # 2 Declaration Cruz Declaration, # 3 Declaration Pincheira Declaration, # 4 Declaration Zelaya Declaration, # 5 Declaration Graber Declaration)(Bansal, Jessica) (Entered: 11/27/2019)
568 MINUTES (IN CHAMBERS) ORDER SETTING HEARING ON PROPOSED JUDGMENTS AND DENYING DEFENDANTS' REQUEST FOR FURTHER BRIEFING by Judge Andre Birotte Jr.: Before the Court are the following: Plaintiffs' Gerardo Gonzalez et al. ("Plaintiffs") Proposed Judgment regarding the Court's Findings of Fact & Conclusions of Law (Dkt. No. 552 ); Defendants' Immigration Customs Enforcement et al. ("Defendants") Opposition to Plaintiffs' Proposed Judgment (Dkt. No. 560 ) and its original Proposed Judgment (Dkt. No. 560-1); Plaintiffs' Reply In Support of Their Proposed Judgment (Dkt. No. 561 ); Defendants' Notice in Accordance with Fed. R. Civ. P. 12(h)(3) and Regarding Briefing Schedule (Dkt. No. 562 ) and its Updated Proposed Judgment (Dkt. No. 562-3); Plaintiffs' Response to Defendants' Notice Under Fed. R. Civ. P. 12(h)(3) (Dkt. No. 566 ); and Plaintiff's Notice in Support of their Proposed Judgment (Dkt. No. 567 ). The Court finds that it has been sufficiently briefed on the issues before it, and DENIES Defendants' request for a briefing schedule. The Parties are ORDERED to appear on 1/15/2020 10:00 AM before Judge Andre Birotte Jr., for a hearing regarding their respective Proposed Judgments. Court Reporter: N/A. (gk) (Entered: 12/04/2019)
569 RESPONSE filed by Objector Department of Homeland Security (DHS)to Notice (Other), 567 (Inkeles, John) (Entered: 12/18/2019)
570 REPLY filed by Plaintiffs Annika Alliksoo, Clemente De La Cerda, Duncan Roy, Christian Michel Varela to Notice (Other), 567 (Attachments: # 1 SUPPLEMENTAL DECLARATION OF ZOE MCKINNEY IN SUPPORT OF PLAINTIFFS PROPOSED

01/15/2020 01/31/2020 02/05/2020 02/05/2020
02/12/2020

JUDGMENT, # 2 SUPPLEMENTAL DECLARATION OF BRIAN PINCHEIRA ESCOBAR IN SUPPORT OF PLAINTIFFS PROPOSED JUDGMENT, # 3 SUPPLEMENTAL DECLARATION OF CECILIO CRUZ IN SUPPORT OF PLAINTIFFS PROPOSED JUDGMENT, # 4 DECLARATION OF EMANUEL PADILLA IN SUPPORT OF PLAINTIFFS PROPOSED JUDGMENT)(Pasquarella, Jennifer) (Entered: 12/20/2019)
571 MINUTES OF Status Conference held before Judge Andre Birotte Jr.: The Courtroom Deputy Clerk distributes the Court's tentative Judgment prior to the case being called. The Court having carefully considered the papers and the evidence submitted by the parties, and having heard the oral argument of counsel, hereby takes the matter under submission. A Final Judgment will issue. Court Reporter: Chia Mei Jui. (gk) (Entered: 01/16/2020)
572 Joint STIPULATION to Continue Status Conference from February 7, 2020 filed by Defendants Leroy D Baca, County of Los Angeles. (Attachments: # 1 Proposed Order)(Baum, Andrew) (Entered: 01/31/2020)
573 ORDER CONTINUING 2/7/2020 STATUS CONFERENCE by Judge Andre Birotte Jr.: Upon Stipulation 572 , the Status Conference is hereby continued to 3/6/2020 10:00 AM before Judge Andre Birotte Jr. (gk) (Entered: 02/05/2020)
574 JUDGMENT by Judge Andre Birotte Jr.: The Court enters the following Judgment resolving all claims: Judgment is entered in favor of Plaintiff Gonzalez and the Probable Cause Subclass1 on their claims that Immigration and Customs Enforcement ("ICE") violates the Fourth Amendment by (1) issuing detainers based on probable-cause determinations from database searches alone (Dkt. No. 548) and (2) by issuing detainers based on probable-cause determinations from evidence of foreign place of birth and no match in a federal immigration database (Dkt. No. 346). Judgment is entered in favor of Plaintiff Gonzalez and the Probable Cause Subclass on their claim that ICE violates the Fourth Amendment by issuing detainers to state and local law enforcement agencies in states that do not expressly authorize civil immigration arrests in state statute. (Dkt. No. 548). Judgment is entered in favor of Plaintiffs Gonzalez and Simon Chinivizyan and the Statutory Subclass on their claim that ICE violates 8 U.S.C. section 1357(a)(2) by issuing detainers without either issuing an administrative warrant or determining that a person "is likely to escape before a warrant can be obtained for [their] arrest" (Dkt. No. 346). See document for further details. (gk) (Entered: 02/06/2020)
575 NOTICE of Appearance filed by attorney Erez Reuveni on behalf of Objector Department of Homeland Security (DHS) (Attorney Erez

02/13/2020
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Reuveni added to party Department of Homeland Security (DHS)(pty:obj))(Reuveni, Erez) (Entered: 02/12/2020)
576 TRANSCRIPT for proceedings held on 1/15/20, 10:31 A.M. Court Reporter/Electronic Court Recorder: Chia Mei Jui, CSR, cmjui.csr@gmail.com, Transcript may be viewed at the court public terminal or purchased through the Court Reporter/Electronic Court Recorder before the deadline for Release of Transcript Restriction. After that date it may be obtained through COURT REPORTER: Chia Mei Jui, CSR, cmjui.csr@gmail.com or PACER. Notice of Intent to Redact due within 7 days of this date. Redaction Request due 3/5/2020. Redacted Transcript Deadline set for 3/16/2020. Release of Transcript Restriction set for 5/13/2020. (Jui, Chia) (Entered: 02/13/2020)
577 NOTICE OF FILING TRANSCRIPT filed for proceedings 1/15/20, 10:31 A.M re Transcript 576 THERE IS NO PDF DOCUMENT ASSOCIATED WITH THIS ENTRY. (Jui, Chia) TEXT ONLY ENTRY (Entered: 02/13/2020)
578 NOTICE OF APPEAL to the 9th Circuit Court of Appeals filed by Federal Defendants Department of Homeland Security (DHS). Appeal of Judgment,,,,, 574 . (Appeal Fee - Not Required for US Goverment.) (Reuveni, Erez) (Entered: 02/14/2020)
579 Emergency EX PARTE APPLICATION to Stay pending appeal to the Ninth Circuit of final judgment and permanent injunction (ECF 574) filed by Federal Defendants Department of Homeland Security (DHS). (Attachments: # 1 Declaration Declaration of Erez Reuveni, # 2 Memorandum Memorandum in Support of Ex Parte Application to Stay Final Judgment and Injunction (ECF 574) Pending Appeal, # 3 Declaration Declaration of Timothy S. Robbins, # 4 Proposed Order) (Reuveni, Erez) (Entered: 02/17/2020)
580 OPPOSITION re: Emergency EX PARTE APPLICATION to Stay pending appeal to the Ninth Circuit of final judgment and permanent injunction (ECF 574) 579 filed by Plaintiffs Annika Alliksoo, Clemente De La Cerda, Duncan Roy, Christian Michel Varela. (Attachments: # 1 Declaration of Jennifer Pasquarella)(Pasquarella, Jennifer) (Entered: 02/18/2020)
582 NOTIFICATION from Ninth Circuit Court of Appeals of case number assigned and briefing schedule. Appeal Docket No. 20-55175 assigned to Notice of Appeal to 9th Circuit Court of Appeals 578 as to Consolidated Defendant Department of Homeland Security (DHS). (gk) (Entered: 02/20/2020)
581 ORDER DENYING DEFENDANTS' EMERGENCY EX PARTE APPLICATION TO STAY FINAL JUDGMENT AND PERMANENT INJUNCTION PENDING APPEAL by Judge Andre Birotte Jr.: The Court determines that Defendants have not satisfied the requirements for

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a stay here, and DENIES Defendants' Emergency Ex Parte Application to Stay Pending Appeal 579 . (gk) (Entered: 02/20/2020)
583 ORDER from Ninth Circuit Court of Appeals filed re: Notice of Appeal to 9th Circuit Court of Appeals 578 filed by Department of Homeland Security (DHS). CCA # 20-55175. The court has received appellants emergency motion for a stay of thedistrict court's order.The request for an administrative stay is denied. (mat) (Entered: 02/25/2020)
584 ORDER from Ninth Circuit Court of Appeals filed re: Notice of Appeal to 9th Circuit Court of Appeals 578 filed by Department of Homeland Security (DHS). CCA # 20-55175. The motion for a stay is granted as to that portion of the order enjoining Immigration and Customs Enforcement from issuing detainers seeking the detention of Probable Cause Subclass members to law enforcement agencies in states that lack state law permitting state and local law enforcement agencies to make civil immigration arrests based on civil immigration detainers only. District Court Order at 4.The motion for a stay is denied in all other respects. Appellants' request to expedite this appeal is granted. (mat) (Entered: 03/04/2020)
585 MINUTES OF STATUS CONFERENCE held before Judge Andre Birotte Jr: For the reasons stated on the record, the Court sets a further Status Conference for Friday, May 15, 2020, at 10:00 a.m. Court Reporter: Katie Thibodeaux. (es) (Entered: 03/06/2020)
586 Joint STIPULATION for Order To Deconsolidate Cases filed by PLAINTIFFS Annika Alliksoo, Clemente De La Cerda, Duncan Roy, Christian Michel Varela. (Attachments: # 1 Proposed Order Granting Joint Stipulation to Deconsolidate Cases)(Pasquarella, Jennifer) (Entered: 03/17/2020)
587 Joint STIPULATION to Continue Certain Judgment Deadlines from March 23 and May 5, 2020 to April 22 and June 4, 2020 Re: Judgment,,,,, 574 filed by Federal Defendants Department of Homeland Security (DHS). (Attachments: # 1 Proposed Order)(Weintraub, Jacob) (Entered: 03/18/2020)
588 ORDER by Judge Andre Birotte Jr, Granting Stipulation to Continue Certain Judgment Deadlines by 30 Days 587 . SEE DOCUMENT FOR FURTHER INFORMATION. (twdb) (Entered: 03/18/2020)
590 **REFER TO NOTICE OF CLERICAL ERROR DE [591}** ORDER ORDER GRANTING JOINT STIPULATION TO DECONSOLIDATE CASES by Judge Andre Birotte Jr. Good cause appearing, the Parties Joint Stipulation to Deconsolidate Cases (Dkt. No. 586 ) is hereby GRANTED from this point forward. The Court hereby ORDERS that the above-captioned cases be DE-CONSOLIDATED. (yl) Modified on 3/25/2020 (yl). (Entered: 03/24/2020)

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589 NOTICE of Compliance Under Judgment filed by Federal Defendants Department of Homeland Security (DHS). (Attachments: # 1 Declaration (John L. Scelta))(Weintraub, Jacob) (Entered: 03/23/2020)
591 NOTICE OF CLERICAL ERROR: Due to clerical error, the Order has a duplicate word and should read: ORDER GRANTING JOINT STIPULATION TO DECONSOLIDATE CASES. Re: Order 590 (yl) (Entered: 03/25/2020)
592 MINUTES (IN CHAMBERS) Order Requesting Joint Status Report Regarding Status of Settlement by Judge Andre Birotte Jr.: The Court hereby ORDERS the parties to jointly submit a status report regarding the status of the parties' settlement in this action by 5:00 PM on 5/13/2020. Court Reporter: N/A. (gk) (Entered: 05/11/2020)
593 STATUS REPORT Regarding Status of Settlement filed by Defendants Leroy D Baca, County of Los Angeles. (Baum, Andrew) (Entered: 05/13/2020)
594 (IN CHAMBERS) ORDER ADVANCING STATUS CONFERENCE HEARING TIME by Judge Andre Birotte Jr. This Court, on its own motion, hereby advances the Status Conference hearing time from 10:00 a.m. to 9:00 a.m. on Friday, May 15, 2020, before Judge Andre Birotte Jr. The hearing will be held telephonically. The Courtroom Deputy Clerk will email counsel the call-in information. IT IS SO ORDERED.THERE IS NO PDF DOCUMENT ASSOCIATED WITH THIS ENTRY. (cb) TEXT ONLY ENTRY (Entered: 05/14/2020)
595 MINUTES OF Telephonic Status Conference held before Judge Andre Birotte Jr.: Court and counsel confer regarding the status of settlement. For the reasons stated on the record, the Court orders Defendants to file a status report, every 45 days, informing the Court of the status of the parties' settlement in this action. Court Reporter: Chia Mei Jui. (gk) (Entered: 05/15/2020)
596 STATUS REPORT REGARDING SETTLEMENT EFFORTS PURSUANT TO THIS COURT'S MAY 15, 2020 ORDER filed by Defendants Leroy D Baca, County of Los Angeles. (Baum, Andrew) (Entered: 06/29/2020)
597 MINUTES (IN CHAMBERS) Order Vacating Final Pretrial Conference and Trial Date, and Ordering Continued Reports from Defendants Every 45 Days by Judge Andre Birotte Jr.: In light of the parties' tentative settlement 593 , the Court hereby VACATES (1) the Final Pretrial Conference date set for 7/14/2020 and (2) the Trial date set for 8/11/2020, subject to future re-setting if the parties' settlement is not approved in a reasonable, timely manner through the process set forth in Defendants' 6/29/2020 Status Report 596 . Defendants are still ORDERED to continue filing a status report, every 45 days, informing the Court of the status of the parties' progress toward final settlement in this action. The Court

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further ORDERS that Defendants notify the Court within three days of the settlement's final approval by filing a Notice of Settlement. Court Reporter: N/A. (gk) (Entered: 07/09/2020)
598 STATUS REPORT REGARDING SETTLEMENT EFFORTS PURSUANT TO THIS COURT'S ORDER filed by Defendants Leroy D Baca, County of Los Angeles. (Baum, Andrew) (Entered: 08/13/2020)
599 ORDER from Ninth Circuit Court of Appeals filed re: Notice of Appeal to 9th Circuit Court of Appeals 578 filed by Department of Homeland Security (DHS). CCA # 20-55175. The Government's motions to seal and request for judicial notice are GRANTED. The remaining requests for judicial notice are DENIED as unnecessary. (gk) (Entered: 09/14/2020)
600 OPINION from Ninth Circuit Court of Appeals filed re: Notice of Appeal to 9th Circuit Court of Appeals 578 filed by Department of Homeland Security (DHS). CCA # 20-55175. The decision of the district court is affirmed in part; reversed and vacated in part; and remanded for proceedings consistent with the opinion. Each side shall bear its own costs. (gk) (Entered: 09/14/2020)
601 TRANSCRIPT for proceedings held on 8/28/20, 10:38 A.M. Court Reporter/Electronic Court Recorder: Chia Mei Jui, CSR, cmjui.csr@gmail.com, Transcript may be viewed at the court public terminal or purchased through the Court Reporter/Electronic Court Recorder before the deadline for Release of Transcript Restriction. After that date it may be obtained through COURT REPORTER: Chia Mei Jui, CSR, cmjui.csr@gmail.com or PACER. Notice of Intent to Redact due within 7 days of this date. Redaction Request due 10/14/2020. Redacted Transcript Deadline set for 10/26/2020. Release of Transcript Restriction set for 12/22/2020. (Jui, Chia) (Entered: 09/23/2020)
602 NOTICE OF FILING TRANSCRIPT filed for proceedings 8/28/20, 10:38 A.M re Transcript 601 THERE IS NO PDF DOCUMENT ASSOCIATED WITH THIS ENTRY. (Jui, Chia) TEXT ONLY ENTRY (Entered: 09/23/2020)
603 STATUS REPORT REGARDING SETTLEMENT EFFORTS PURSUANT TO THIS COURT'S ORDER filed by Defendants Leroy D Baca, County of Los Angeles. (Baum, Andrew) (Entered: 09/25/2020)
604 NOTICE OF MOTION AND MOTION for Order for MOTION FOR PRELIMINARY APPROVAL OF CLASS ACTION SETTLEMENT filed by Plaintiffs Clemente De La Cerda. Motion set for hearing on 11/20/2020 at 10:00 AM before Judge Andre Birotte Jr. (Attachments: # 1 Declaration Barrett S. Litt, # 2 Proposed Order, # 3 Exhibit A, # 4 Exhibit B, # 5 Exhibit C, # 6 Exhibit D) (Litt, Barrett) (Entered: 10/30/2020)

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605 STIPULATION for Hearing re NOTICE OF MOTION AND MOTION for Order for MOTION FOR PRELIMINARY APPROVAL OF CLASS ACTION SETTLEMENT 604 filed by Plaintiffs Clemente De La Cerda. (Attachments: # 1 Proposed Order)(Litt, Barrett) (Entered: 10/30/2020)
606 ORDER RE JOINT STIPULATION TO SHORTEN TIME RE HEARING ON MOTION FOR PRELIMINARY APPROVAL OF CLASS ACTION SETTLEMENT by Judge Andre Birotte Jr.: The parties' Stipulation for an order shortening the time for notice and hearing of Plaintiffs' motion for preliminary approval of class action settlement 605 is hereby GRANTED. The hearing on Plaintiffs' motion for preliminary approval of the class action settlement 604 is set for 11/20/2020 at 10:00 AM before Judge Andre Birotte Jr. (gk) (Entered: 11/04/2020)
607 STATUS REPORT Regarding Settlement Efforts Pursuant to this Court's Order filed by Defendants Leroy D Baca, County of Los Angeles. (Baum, Andrew) (Entered: 11/10/2020)
608 EXHIBIT Corrected Ex. A to Proposed Preliminary Approval Order (Dkt. 604-3) to NOTICE OF MOTION AND MOTION for Order for MOTION FOR PRELIMINARY APPROVAL OF CLASS ACTION SETTLEMENT 604 filed by Plaintiff Clemente De La Cerda. (Litt, Barrett) (Entered: 11/12/2020)
609 MINUTES OF Motion Hearing held before Judge Andre Birotte Jr. RE: Plaintiffs' Motion for Preliminary Approval of Class Action Settlement 604 . The Court having carefully considered the papers and the evidence submitted by the parties, and having heard the oral argument of counsel, hereby takes the motion under submission. Court Reporter: Chia Mei Jui. (gk) (Entered: 11/23/2020)
610 PRELIMINARY APPROVAL ORDER; EXHIBITS by Judge Andre Birotte Jr.: Upon Plaintiffs' Motion for Preliminary Approval of Class Action Settlement 604 , IT IS HEREBY ORDERED, ADJUDGED AND DECREED that the Settlement Agreement is hereby preliminarily approved, subject to further consideration thereof at the Fairness Hearing provided for below. The Court finds that the class settlement fund of $14,000,000 and its proposed allocation, and the other provisions contained within the Settlement Agreement, are within the range of what would constitute a fair, reasonable, and adequate settlement in the best interests of the Class as a whole, and that the terms of the Settlement Agreement otherwise satisfy the Federal Rules of Civil Procedure 23(e) and due process requirements. Filing of Plaintiffs' Motion for Award of Attorneys' Fees and Costs by 3/19/2021. Deadline to file proposed final approval order and motion for final approval of settlement 9/3/2021. Final Approval hearing on 10/1/2021. Barrett S. Litt and Lindsay Battles of Kaye, McLane, Bednarski & Litt, Jennifer Pasquarella and Jessica Bansal of the ACLU of Southern California, and Mark Fleming of the National

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Immigrant Justice Center and Chris Newman of the National Day Laborer Organizing Network are hereby confirmed as counsel for the Class Representatives and the Class. See document for further details. (gk) (Entered: 11/25/2020)
611 NOTICE OF CHANGE OF FIRM NAME filed by Plaintiff Clemente De La Cerda. (Litt, Barrett) (Entered: 12/22/2020)

PACER Service Center Transaction Receipt

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Hill

Description: Docket Report

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2:12-cv-09012-AB-FFM End date: 12/23/2020

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30

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3.00

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