Lopez-Florez v. Douglas County

IN THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF OREGON

EUGENE DIVISION

IRENE LOPEZ-FLORES, Case No. 6:19-cv-00904-AA

OPINION AND ORDER

Plaintiff,

v.

DOUGLAS COUNTY and JOHN

HANLIN, sheriff of Douglas County,

in his official capacity,

Defendants.

AIKEN, District Judge:

Plaintiff Irene Lopez-Flores (“plaintiff”) brought a 42 U.S.C. § 1983 claim (doc.

1) against defendants Douglas County and John Hanlin, sheriff of Douglas County

seeking damages for violation of her rights under the Fourth and Fourteenth

Amendments. Defendants have moved to dismiss the complaint for failure to state a

claim.1 (doc. 14). For the reasons below, defendants’ Motion to Dismiss (doc. 14) is

denied.

1 The United States of America has filed a statement interest in support of

defendants’ position. (doc. 18)

BACKGROUND

The factual background is brief and drawn from the allegations in plaintiff’s

complaint. On December 4, 2017, plaintiff was arrested in Douglas County with

probable cause for alleged violations of Oregon law. Plaintiff’s arrest resulted in her

detention in the Douglas County Jail (“Jail”). On December 5, 2017, plaintiff was

arraigned on the alleged Oregon law violations, and Douglas County Circuit Court

set bail at $15,000. That same day, a U.S. Immigration and Customs Enforcement

(“ICE”) agent sent the Jail an immigration detainer (Form I-247A) as well as a

warrant for removal/deportation (Form I-205) requesting that the Jail or Sheriff

notify ICE before plaintiff was released and maintain custody of plaintiff for a period

not exceed 48 hours beyond when she would otherwise have been released to allow

the Department of Homeland Security (“DHS”) to assume custody of her. By 10:15

a.m. on December 7, 2017, plaintiff had posted bail for the Oregon law violations.

Defendants maintained custody of plaintiff until 12:30 p.m., at which time DHS

agents took custody of plaintiff for immigration violations.

STANDARD OF REVIEW

Under Rule 12(b)(6), a defendant may move to dismiss a complaint for “failure

to state a claim upon which relief can be granted.” Fed. R. Civ. P. 12(b)(6). In order

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). Rule 8(a)(2) allows for a “short and plain statement

of the claim showing that the pleader is entitled to relief.” Fed. R. Civ. P. 8(a)(2).

While the complaint does not need “detailed factual allegations,” the complaint must

provide “more than labels and conclusions.” Bell Atl. Corp. v. Twombly, 550 U.S. 544,

555 (2007). In assuming the facts in the complaint as true and viewing them in a

light most favorable to the nonmoving party, the court “determine[s] whether [the

factual allegations] plausibly give rise to an entitlement to relief.” Iqbal, 556 U.S. at

679. “The plausibility standard is not akin to a ‘probability requirement,’ but it asks

for more than a sheer possibility that a defendant has acted unlawfully.” Id. at 678.

DISCUSSION

Plaintiff alleges defendants are liable under 42 U.S.C. § 1983 for acting

“pursuant to official municipal policy of some nature [that] cause[d] a constitutional

tort.” Monell v. Dep’t of Soc. Services., 436 U.S. 658, 691 (1978). A local government

can only be sued when “execution of a government’s policy or custom, whether made

by its lawmakers or by those whose edicts or acts may fairly be said to represent

official policy, inflicts the injury that the government as an entity is responsible under

§ 1983.” Id. at 694. Plaintiff alleges that Sheriff Hanlin, a county employee, acted

“pursuant to a formal governmental policy or a longstanding practice or custom which

constitutes the standing operating procedure of the local governmental entity,”

Gillette v. Delmore, 972 F.2d 1342, 1346 (9th Cir. 1992) (internal quotations and

citations omitted), violating plaintiff’s constitutional right to be free from unlawful

seizure guaranteed by the Fourth Amendment. Plaintiff further alleges that the Jail

has a “practice, policy, or custom of detaining inmates, solely due to the existence of

an immigration detainer,” regardless of whether they have probable cause to extend

plaintiff’s detention after she posted bail. Compl. ¶ 16-17.

Defendants do not dispute that they extended plaintiff’s detention based on the

detainer request and administrative warrant. Defendants, however, move to dismiss

plaintiff’s complaint on the grounds that (1) plaintiff has not sufficiently alleged facts

to show defendant have a practice, policy, or custom of unlawfully detaining inmates

based on an immigration detainer and (2) plaintiff’s detention was based on probable

cause and does not constitute a valid Fourth Amendment violation claim. The Court

addresses each argument in turn.

I. Judicial Notice

Defendants ask the Court to take judicial notice of several documents not

included in plaintiff’s complaint. “A court may take judicial notice of matters of public

record without converting a motion to dismiss into a motion for summary judgment.

But a court may not take judicial notice of a fact that is subject to reasonable dispute.”

Lee v. City of Los Angeles, 250 F.3d 668, 689 (9th Cir. 2001) (internal quotations and

citations omitted) (emphasis added).

Specifically, defendants ask the court to take judicial notice of Douglas County

Sheriff’s Office Jail Procedures No. 1411 (“Jail Procedures”), Warren Decl. Ex. 2 16:3,

ICE detainer (Form I-247A), and the warrant for removability (Form 1-205).

Wildlund Decl. Ex. 1 15:4-5. The Court declines to take judicial notice of the Jail

Procedures. Plaintiff alleges defendants acted contrary to any written policy. Thus,

there exists a dispute as to whether defendants’ detention of plaintiff was based on

the Jail’s written policy or some other practice or custom and if this submitted policy

comports with requirements of the Fourth Amendment.2

The Court, however, does take judicial notice as to the existence of the ICE

detainer (Form 1-247A) and the warrant for removability (Form 1-205). Wildlund

Decl. Ex. 1 15:4-5. Neither party disputes these forms existed at the time of the

incident. The Court does not take judicial notice of any of the facts contained within

either of these documents, only that they exist.

II. Practice, Policy, or Custom

Because the Court does not take judicial notice of the Jail Procedures, there

exists a reasonable dispute as to what the Jail’s practice, policy, or custom is based

on plaintiff’s allegations. Thus, the Court finds there are sufficient facts to

reasonably infer the Jail has a practice or custom of extending detention of inmates

without a specific finding of probable cause, as outlined below.

Defendant’s primarily argue that the detention which occurred here did not

violate plaintiff’s Fourth Amendment rights, meaning that there was no violation of

Monell. Whether probable cause extended from federal officials to defendants is

discussed more fully below.

III. Probable Cause for Detention

It is well-established that “[t]he Fourth Amendment applies to all seizures of

2 Because of the dispute of fact, plaintiff should be allowed discovery as to

whether the Jail’s practice of detaining an inmate pursuant to an ICE detainer and

administrative warrant is the same as the written policy. In allowing discovery, the

Court is not precluding defendants from bringing argument in future motions

concerning this document or other Jail policies, practices, or customs regarding ICE

detainers.

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.” Roy v. Cty. of Los Angeles, 2018 WL 914773, at *23 (C.D. Cal.

Feb. 7, 2018) (internal citations omitted) 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., 2014 WL 1414305, at *10 (D.

Or. Apr. 11, 2014).

“As a general rule, it is not a crime for a removable alien to remain present in

the United States.” Arizona v. United States, 567 U.S. 387, 407 (2012). Therefore,

removal of an alien is a “civil, not criminal matter.” Id. at 396. It is constitutionally

permissible for federal executive officials to rely on the probable cause for civil

removability provided in an administrative warrant to arrest deportable aliens. Abel

v. United States, 362 U.S. 217, 232-34 (1960). ICE officers are federal executive

officials who can arrest and detain aliens on probable cause of removability. 8 U.S.C.

§ 1226. ICE officers “who have successfully completed basic immigration law

enforcement training” are authorized to arrest removable aliens. 8 U.S.C. §

287.5(c)(1); see e.g. 8 U.S.C. § 236.1(b)(1) (only authorized immigration officers may

take aliens into custody “under the authority of Form I-200”).

It is well established ICE officers must have probable cause of removability to

be able to detain an alien. See 8 U.S.C. § 236.1(b)(1); Abel, 362 U.S. at 232-34. Courts

in this District have previously held that the existence of an ICE detainer alone does

not provide probable cause. Miranda-Olivares v. Clackamas County, 2014 WL

1414305, at *11. Defendants correctly noted that ICE policy changed in 2017 so that

“ICE immigration officers must establish probable cause to believe that the subject is

an alien who is removable from the United States before issuing a detainer . . .”

Issuance of Immigration Detainers by ICE Immigration Officers, ICE Policy No.

10074.2: § 2.4 (April 2, 2017).3

These detainers must also be accompanied by an administrative warrant,

codifying an ICE officer’s probable cause of removability. Id. Thus, the existence of

an ICE detainer and administrative warrant here suggests that ICE officers had

probable cause for plaintiff’s removal. However, the question in this case is not

whether ICE agents had probable cause to detain the plaintiff but rather whether

ICE’s probable cause imputed to the state defendants. For the reasons outline below,

the Court finds ICE’s probable cause did not impute to defendants.

/ / /

/ / /

3 https://www.ice.gov/sites/default/files/documents/Document/2017/10074-

2.pdf.

A. Probable cause under Federal law

It is impossible for federal agents to be everywhere at once; therefore, “[f]ederal

law specifies limited circumstances in which state officers may perform the functions

of an immigration officer.” Arizona, 567 U.S. at 408. Under 8 U.S.C. § 1357(g)(1),

DHS can “enter into a written agreement with a State, or any political subdivision of

a State, pursuant to which an officer or employee of the State or subdivision, who is

determined by the Attorney General to be qualified to perform a function of an

immigration officer.” These agreements are referred to as “287(g) agreements.” No

such formal 287(g) agreement is present in this case.

Rather, defendants claim they were cooperating with request for detention by

federal immigration officers based on the immigration officer’s probable cause for a

civil immigration violation. Although not directly cited in defendant’s Motion to

Dismiss (doc. 14), the Statement of Interest of the United States of America (doc. 18)

asserts defendants had authority to detain plaintiff under § 1357(g)(10)(B). Section

1357(g)(10)(B) allows officers of a State “otherwise to cooperate with the Attorney

General in the identification, apprehension, detention, or removal of aliens not

lawfully present in the United States.” In Arizona, the Supreme Court reasoned

“[t]here may be some ambiguity as to what constitutes cooperation under the federal

law; but no coherent understanding of the term would incorporate the unilateral

decision of state officers to arrest an alien for being removable absent any request,

approval, or other instruction from the Federal Government.” 567 U.S. at 410.

There is disagreement among courts as to what “cooperation” with the federal

government means in § 1357(g)(10)(B). Defendants cite Lopez-Lopez v. County of

Allegan, 321 F. Supp. 3d 794 (W.D. Mich. 2018), to argue local law enforcement

agencies (“LLEAs”) may cooperate with federal government by detaining a removable

alien after receiving direction from an ICE officer in the form of an ICE detainer

(Form I-247A) and administrative warrant (Form I-200).4 In Lopez-Lopez, the

plaintiff was detained by a jail pursuant to an ICE detainer and a warrant, even

though he had posted bail on his criminal matter. Id. at 796. Plaintiff filed a § 1983

complaint for violation of his rights under the Fourth Amendment, but the district

court later granted the county’s motion to dismiss. Id. The court held LLEAs can

“cooperate[] by complying with federal government’s request to hold a removable

alien for ICE” under § 1357(g)(10) at the request of ICE. Id. at 801. This Court finds

the reasoning in Lopez-Lopez unpersuasive.

The Court agrees, instead, with the conclusions reached in Lunn v.

Commonwealth, 78 N.E.3d 1143 (Mass. 2017). There the Supreme Court of

Massachusetts held § 1357(g)(10) did not authorize LLEAs to detain the plaintiff after

his criminal charges were dismissed, despite the jail having received an ICE detainer.

78 N.E.3d at 1159. The court concluded because the other subsections of § 1357(g)

gave LLEAs authority to detain and seize removable aliens under formal 287(g)

agreements, “it is not reasonable to interpret § 1357(g)(10) as affirmatively granting

4 Defendants cite to several cases to support their contention that detention

pursuant to ICE detainers and warrants. However, those cases dealt with federal

officers arresting a person pursuant to an administrative warrant, not a county

official detaining person pursuant to federal administrative warrant.

authority to all State and local officers to make arrests that are not otherwise

authorized by State law.” Id.

Other district courts have found likewise. For example, a district court in the

Southern District of Florida has reasoned that:

If ‘otherwise cooperate’ under Section 1357(g)(10), a catch-all provision,

were read to allow local law enforcement to arrest individuals for civil

immigration violations at the request of ICE, training, supervision and

certification pursuant to a formal agreement between DHS and state

officers described in the remaining provisions of Section 1357(g) would

be rendered meaningless.

Creedle v. Miami-Dade County, 348 F. Supp. 3d 1276, 1304 (S.D. Fla. 2018); see also

Lopez-Aguilar v. Marion County, 296 F. Supp. 3d 959, 975 (S.D. Ind. Nov. 7, 2017) (8

U.S.C. § 1357(g)(10)(B) does not authorize “a ‘separate grant’ of authority to the states

without trending to nullify the requirement of federal ‘training, certification, and

supervision’ otherwise established by Section 1357(g).”); Abriq v. Hall, 295 F. Supp.

3d 874, 877 (M.D. Tenn. 2018) (rejecting that § 1357(g)(10) provided state officers one

of the “limited circumstances” in which they may enforce federal immigration law).

Likewise, the Supreme Court of Montana recently held that a theory similar to the

one advanced by defendants regarding § 1357(g) “would essentially render the

purpose of 287(g) agreements meaningless.” Ramon v. Short, 2020 MT 69, 399 Mont.

254, 274. The court further noted that

If performing the arrest authority of an immigration officer, which

arguably is the highest authority granted to an immigration officer, can

be done on an ad hoc basis by state and local officers, regardless of state

and local law, there would be no need for states to enter into 287(g)

agreements.

Id.

B. Probable cause under Oregon law

More importantly, Lopez-Lopez did not consider whether LLEAs have

permission by state law to detain aliens under ICE detainers and warrants. Lunn

and Ramon, on the other hand, recognized the importance of state authorization. The

language of § 1357(g) also recognizes the importance of state authorization. Under §

1357(g)(1), DHS can enter into formal 287(g) agreements “to the extent consistent

with State and local law.” The Court finds that to read § 1357(g)(10) as granting

LLEAs authorization irrespective of state law renders the requirement of formal

287(g) agreements to be consistent with state law meaningless. Oregon law expressly

does not authorize state or local law enforcement to seize or detain removable aliens.

Or. Rev. Stat. § 181A.820(1).

Or. Rev. Stat. § 181A.820(1) provides that “[n]o law enforcement agency of the

State of Oregon or of any political subdivision of the state shall use agency moneys,

equipment or personnel for the purpose of detecting or apprehending persons whose

only violation of law is that they are persons of foreign citizenship present in the

United States in violation of federal immigration law.” The statute does provides

that “a law enforcement agency may arrest any person who: (a) [i]s charged by the

United States with a criminal violation of federal immigration laws . . . and (b) [i]s

subject to arrest for the crime pursuant to a warrant of arrest issued by a federal

magistrate.” Or. Rev. St. 181A.820(3).

Defendants rely on Virginia v. Moore, 553 U.S. 164 (2008), to support their

argument that the Jail did not violate plaintiff’s Fourth Amendment rights, even

though their actions might have been inconsistent with Oregon law. In Moore, the

Supreme Court concluded, “warrantless arrests for crimes committed in the presence

of an arresting officer are reasonable under the Constitution, and that while States

are free to regulate such arrests however they desire, state restrictions do not alter

the Fourth Amendment protections.” Id. at 176. However, “[t]he Moore Court said

nothing about police authority to arrest someone for conduct that is not a crime at

all.” Smith v. Kelly, 2012 WL 1605123, at *2 (W.D. May 8, 2012). While “Moore found

that state distinctions between arrestable and nonarrestable crimes did not affect the

constitutionality of an arrest . . . the Fourth Amendment has always incorporated

state law distinctions between what is criminal and what is not.” Id. at *4.

To argue a violation of Oregon law does not equate a violation of plaintiff’s

Fourth Amendment rights, defendants also cite to the Martinez-Medina v. Holder,

where a Ninth Circuit panel held that, “the deputy sheriff’s violation of Oregon law

[Or. Rev. St. 181A.820] does not constitute a violation of the Fourth Amendment and,

thus, cannot be the basis for finding an egregious Fourth Amendment violation.” 673

F.3d 1029, 1035 (9th Cir. 2011). In Martinez-Medina, the Ninth Circuit considered

whether evidence obtained during the petitioners’ arrests should be suppressed in

the federal removal proceeding. Id. The petitioners were arrested by a Douglas

County deputy sheriff for a civil immigration violation after the officer stopped the

petitioners at a gas station. Id. at 1031-33. The court had to “deny the petition for

review unless the deputy sheriff violated Petitioners’ Fourth Amendment rights and

that violation was egregious.” Id. at 1034 (emphasis in original). Importantly, the

court concluded however, “we need not and do not decide whether the seizure violated

Petitioners’ Fourth Amendment rights because we conclude if the seizure violated

Petitioners’ Fourth Amendment rights, the violation was not egregious.” Id. Since

the court refused to address whether the seizure violated the petitioners’ Fourth

Amendment rights, the question remains as to whether in this case defendants have

authority to detain plaintiff under federal law despite Oregon law’s prohibition of

such action.

C. Collective knowledge doctrine

As stated above, in this case there are facts to suggest the ICE agents had

probable cause of plaintiff’s removability, which is a civil immigration violation.

Defendants maintain ICE sent the detainer (Form 1-247A) and administrative

warrant (Form I-205) outlining ICE’s probable cause of plaintiff’s removability.

Defendants argue the delivery of the detainer and administrative warrant gave them

collective knowledge of plaintiff’s immigration violation.

In determining whether an arrest, detention, or seizure complied with the

Fourth Amendment, courts “look[] to the collective knowledge of all the officers

involved in the criminal investigation although all of the information known to law

enforcement officers involved in the investigation is not communicated to the officer

who actually [undertakes the challenged action].” United States v. Ramirez, 473 F.3d

1026, 1032 (9th Cir. 2007) (citing United States v. Sutton, 794 F.2d 1415, 1426 (9th

Cir. 1986). “Where one officer knows facts constituting reasonable suspicion or

probable cause (sufficient to justify action under an exception to the warrant

requirement), and he communicates an appropriate order or request, another officer

may conduct a warrantless stop, search, or arrest without violating the Fourth

Amendment.” Id. at 1037; see also United States v. Hensley, 468 U.S. 221, 231 (1985);

United States v. Robinson, 536 F.2d 1298, 1299 (9th Cir. 1976).

However, as was clearly stated in Ramirez, the collective knowledge doctrine

applies to cases of criminal investigation. Here, the case involves a civil immigration

violation. Defendants cite to City of El Cenizo, Texas v. Texas to prove the collective

knowledge doctrine does in fact apply to cases of civil immigration violations. 890

F.3d 164, 187-88. The court in El Cenizo stated in dicta that “[u]nder 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.” Id. at 187. The court finds the dicta unpersuasive.

The court declines to ignore Ninth Circuit precedent. Currently, the Ninth

Circuit has only affirmed that the collective knowledge doctrine applies to criminal

investigations. See Ramirez, 473 F.3d at 1032. The Ninth Circuit has yet to decide

whether the doctrine extends to civil immigration matters. At this time, there is no

evidence “to indicate any communication or cooperation between the ICE personnel

who made the probable cause determination and the County officials who processed

the detainer request.” Ochoa v. Campbell, 266 F. Supp. 3d 1237, 1258 (E.D. Wash.

2017), dismissed as moot, 716 Fed. Appx. 741 (2018) (declining to extend collective

knowledge doctrine in an immigration context).

Communication and cooperation between federal, state, and local officials on

immigration matters is clearly permissible, but the role state and local officials can

take in such matters is limited. Id. (citing to Arizona, 567 U.S. at 408. Indeed, state

and local law enforcement and other officials are presumed to be unqualified and

unable to perform the functions of federal immigration law enforcement officers, at

least as those functions pertain to enforcement of civil immigration violations. Id.

(citing 8 U.S.C. § 1357(g)(1)); cf. Santos v. Frederick Cnty. Bd. of Comm'rs, 725 F.3d

451, 464 (4th Cir. 2013) (citing Arizona, 567 U.S. at 407) (“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 law

officers generally lack authority to arrest individuals [for] civil immigration

violations.”).

Here the Court finds that there was no communication between the federal

officials and defendants in this case communicating probable cause other than the

detainer and warrant for removal. Based on the facts alleged, even if there were

sufficient communication to impute probable cause, defendants would not have

authority to detain plaintiff as there was no formal agreement allowing them to do

so. The Court sees no substantive reason to distinguish this case from the holding in

Miranda-Oliveras. Accordingly, the Court finds that taking all the allegations in the

complaint as true, plaintiff has adequately alleged a claim for relief at his stage of

the proceedings.

/ / /

/ / /

CONCLUSION

For the reasons set forth above, defendants’ Motion to Dismiss (doc. 14) is

DENIED.

IT IS SO ORDERED

Dated this _3_0_t_h_ day of May 2020

___________/s_/_A_n_n__ A__ik_e_n_________

Ann Aiken

United States District Judge