Case 2:07-cv-02513-GMS Document 480 Filed 12/01/11 Page 1 of 5
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`WO
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`IN THE UNITED STATES DISTRICT COURT
`FOR THE DISTRICT OF ARIZONA
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`No. CV-07-2513-PHX-GMS
`ORDER
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`))))))))))))))
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`Manuel de Jesus Ortega Melendres, et al.,
`Plaintiff,
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`vs.
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`Joseph M. Arpaio, in his individual
`capacity as Sheriff of Maricopa County,
`Arizona,
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`Defendant.
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`Pending before the Court are Defendants’ Motion for Summary Judgment (Doc. 413),
`Plaintiffs’ Renewed Motion for Sanctions, (Doc. 416), Plaintiffs’ Renewed Motion for Class
`Certification (Doc. 420), Plaintiffs’ Motion for Partial Summary Judgment (Doc. 421), and
`Defendants’ Motion for Leave to File Sur-Reply. (Doc. 469). A hearing on these motions is
`scheduled for Thursday, December 22, at 10:00 a.m.
`The parties have been informed that the Court would request supplemental briefing
`on identified issues prior to oral argument. This Order identifies the topics on which the
`Court desires supplemental briefing and is issued pursuant to Federal Rules of Civil
`Procedure 56(f). In April of this year the Ninth Circuit Court of Appeals issued United
`States v. Arizona, 641 F.3d 339 (9th Cir. 2011). Neither party discussed this opinion in detail
`in its briefing, nor did either party address it in the context of Plaintiffs asserted Fourth
`Amendment claims. In fact, Plaintiffs have not moved for summary judgment on these
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`Case 2:07-cv-02513-GMS Document 480 Filed 12/01/11 Page 2 of 5
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`claims. Yet, as the Court reads Unites States v. Arizona, it is possibly dispositive of those
`claims and also bears upon the issues presented by the class certification motion with respect
`to the search and seizure claims. Prior to taking any action pursuant to Fed. R. Civ. P. 56(f),
`however, the Court desires to have the parties address the law set forth in United States v.
`Arizona as it relates to the developed facts pertaining to the stop of Plaintiff Ortega-
`Melendrez and to otherwise respond to the following questions.
`In United States v. Arizona, 641 F.3d 339, 362 (9th Cir. 2011) the Court held that (1)
`there is no “federal criminal statute making unlawful presence in the United States, alone,
`a federal crime.” Id. (citing Martinez-Medina v. Holder, ____F.3d ____, ____ (9th Cir.
`2011)). Such violations, as well as other immigration “status” offenses according to the case,
`constitute civil violations of federal immigration law. The Arizona case also makes clear two
`additional points: (1) “states do not have the inherent authority to enforce the civil provisions
`of federal immigration law,” and, (2) that “an alien’s admission of illegal presence . . . does
`not, without more, provide probable cause of the criminal violation of illegal entry.” id.,
`quoting Gonzales v. City of Peoria, 722 F.2d 468, 476-77 (9th Cir. 1983). In light of these
`and the other holding of United States v. Arizona, and in light of the revocation of MCSO’s
`287(g) status for conducting field enforcement operations as of October 16, 2009:
`1. What good faith legal basis is there, if any, for MCSO to assert that it has the
`authority going forward to enforce civil violations of the federal immigration law?
`2. What good faith basis is there, if any, for MCSO to assert that it presently has the
`authority pursuant to any enforceable state or federal law to detain any person based upon
`a reasonable belief, without more, that the person is not legally present in the United States?
`3. What good faith legal basis is there, if any, for the proposition that Whren v. U.S.,
`517 U.S. 806 (1996), justifies pretextual stops for the ancillary purpose of investigating civil
`immigration violations when the officer conducting the stop does not have the authority to
`enforce civil immigration violations?
`4. What good faith legal basis is there, if any, for asserting that prior to the revocation
`of MCSO’s field enforcement authority, an officer who was not 287(g) certified had
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`Case 2:07-cv-02513-GMS Document 480 Filed 12/01/11 Page 3 of 5
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`authority to detain someone for any period on the reasonable belief that the person was not
`in compliance with the civil immigration laws of the United States?
`5. On what basis, if any, did Office DiPietro form a belief that Ortega-Melendrez was
`committing a criminal violation when he was sitting in the vehicle which Officer DiPietro
`stopped?
`6. Does the MCSO continue to assert that it presently has the authority pursuant to any
`enforceable law to detain any person based upon a reasonable suspicion, without more, that
`the person is not legally present in the United States? Please identify the basis for that
`authority in light of United States v. Arizona.
`7. What other good faith arguments are there that the Court either lacks the authority
`or otherwise should not enjoin the MCSO from seeking to enforce federal civil immigration
`law, or otherwise conduct stops of persons based only upon a reasonable suspicion, without
`more, that the person is not legally present within the United States?
`The parties will simultaneously file supplemental briefs to address the above questions
`not to exceed twenty pages in length on or before December 16. The Court will not grant an
`extension to this deadline absent extraordinary circumstances.
`At oral argument the Court would like to address the following additional questions
`with the parties:
`1. With respect to the renewed motions for class certification Defendants have argued
`that the class should not be certified because: (a) there would be separate defenses to class
`members’ claims depending upon whether the officer(s) who stopped class members were
`287(g) certified, and (b) the proposed class is overbroad, and might presumably destroy the
`right of some individual class members to seek damages or otherwise protect their rights.
`A. To what extent does the destruction of the stat sheets impair the ability of potential
`parties to determine whether they were stopped by MCSO officers who were 287(g)
`certified? To the extent that Defendants have complicated the ability to distinguish between
`stops made by 287(g) officers and stops not made by such officers, would provisional class
`certification be an appropriate sanction among possible permissive inferences for destruction
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`Case 2:07-cv-02513-GMS Document 480 Filed 12/01/11 Page 4 of 5
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`of the stat sheets?
`B. To what extent does Martinez-Medina v. Holder, ____F.3d ____, ____ (9th Cir.
`2011) suggest that Defendants would receive qualified immunity for any damages claims
`prior to the issuance of that decision? If Defendants would be able to invoke qualified
`immunity for claims related to immigration enforcement prior to Martinez-Medina would
`overbreadth continue to be a basis on which to deny class certification?
`2. Outside the scope of MCSO’s saturation patrols, what facts have Plaintiffs offered
`that the practices or policies of the MCSO have a discriminatory effect on putative class
`members? If any class is certified, should the class be limited to those class members
`detained in pursuit of immigration enforcement by the MCSO?
`3. Were the Court to rule, or the MCSO to acknowledge, that it has no authority under
`existing law to detain someone based on a reasonable belief, without more, that such person
`is not legally present in the United States, and that it would instruct its officers on the
`appropriate law, what additional evidence is there that suggests that the Plaintiffs and/or
`putative class members would be likely to suffer harm in the future sufficient to find standing
`to seek injunctive relief on the discrimination claims?
`The emails produced by the OET carveout suggest that relevant emails were
`destroyed. Nevertheless, courts should “impose the ‘least onerous sanction’ given the extent
`of the offending party’s fault and the prejudice to the opposing party,” In re Napster, Inc.
`Copyright Litigation, 462 F. Supp. 2d 1060, 1078 (N. D. Cal 2006) (quoting Schmid v.
`Milwaukee Elec. Tool Corp., 13 F.3d 76, 79 (3d Cir. 1994), and sanctions should not “not
`interfere with that party’s right to produce other relevant evidence.” In re Oracle Corp.
`Securities Litigation, 627 F.3d 376, 387 (9th Cir. 2010). In light of the substantive evidence
`recovered by the OET carveout and the caution to use inherent powers with restraint, parties
`should be prepared to discuss the appropriateness of the following adverse inferences:
`1) The finder of fact may infer that the stat sheets would have suggested
`that officers involved in special operations did not follow a “zero
`tolerance” policy requiring them to stop all traffic offenders.
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`Case 2:07-cv-02513-GMS Document 480 Filed 12/01/11 Page 5 of 5
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`2) The finder of fact may infer that the stat sheets for special operations
`would have included a significantly higher number of arrests in the
`categories “Illegal Alien turned over to ICE/LEAR” and/or “Suspected
`Illegal Alien arrested on state charges” than records documenting
`ordinary patrol activity.
`3) The finder of fact may infer that the stat sheets would have shown
`that MCSO officers not certified under 287(g) to enforce immigration
`law nevertheless detained or arrested suspected illegal aliens.
`4) The finder of fact may infer that MCSO maintained a file of citizen
`complaints making requests for special operations.
`5) The finder of fact may infer that MCSO received and circulated
`citizen complaints prior to August 31, 2008 requesting that MCSO
`officers conduct special operations to enforce federal immigration law
`in areas where MCSO later conducted such operations.
`6) The finder of fact may infer that some of the citizen communications
`described above complained about “Mexicans,” “day laborers,” or
`“illegal immigrants” but did not provide a description of any criminal
`activity.
`Should parties wish to discuss other issues, they are free to do so. However, the oral
`argument is scheduled to last only two hours. Each party will receive one hour total for
`argument, and the above-mentioned issues are of principal interest to the Court.
`Dated this 30th day of November, 2011
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