Manuel De Jesus Ortega Melendr v. Joseph M. Arpaio

FOR PUBLICATION

UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

MANUEL DE JESUS ORTEGA 

MELENDRES; JESSICA QUITUGUA

RODRIGUEZ; DAVID RODRIGUEZ;

VELIA MERAZ; MANUEL NIETO, Jr.; No. 12-15098

SOMOS AMERICA,

Plaintiffs-Appellees,  D.C. No.

2:07-cv-02513-GMS

v. OPINION

JOSEPH M. ARPAIO; MARICOPA

COUNTY SHERIFF’S OFFICE,

Defendants-Appellants.



Appeal from the United States District Court

for the District of Arizona

G. Murray Snow, District Judge, Presiding

Argued and Submitted

September 13, 2012—San Francisco, California

Filed September 25, 2012

Before: J. Clifford Wallace, Susan P. Graber, and

Marsha S. Berzon, Circuit Judges.

Opinion by Judge Wallace

11941

11944 ORTEGA MELENDRES v. ARPAIO

COUNSEL

Timothy J. Casey (argued) and James L. Williams, Schmitt,

Schneck, Smyth, Casey & Even, P.C., Phoenix, Arizona, for

the defendants-appellants.

Thomas P. Liddy, Maricopa County Attorney’s Officer, Phoe-

nix, Arizona, for the defendants-appellants.

Anne Lai (argued), Jerome N. Frank Legal Services Organiza-

tion, New Haven, Connecticut, for the plaintiffs-appellees.

Stanley Young and Andrew C. Byrnes, Covington & Burling

LLP, Redwood Shores, California, for the plaintiffs-appellees.

ORTEGA MELENDRES v. ARPAIO 11945

Tammy Albarran and David R. Hults, Covington & Burling

LLP, San Francisco, California, for the plaintiffs-appellees.

Lesli Gallagher, Covington & Burling LLP, San Diego, Cali-

fornia, for the plaintiffs-appellees.

Cecillia D. Wang, ACLU Foundation Immigrants’ Rights

Project, San Francisco, California, for the plaintiffs-appellees.

Nancy Ramirez, Mexican American Legal and Educational

Fund, Los Angeles, California, for the plaintiffs-appellees.

Dan Pochoda and James Lyall, ACLU Foundation of Arizona,

Phoenix, Arizona, for the plaintiffs-appellees.

Andre I. Segura, ACLU Foundation Immigrants’ Rights Proj-

ect, New York, New York, for the plaintiffs-appellees.

OPINION

WALLACE, Senior Circuit Judge:

Sheriff Joseph M. Arpaio and the Maricopa County Sher-

iff’s Office (collectively, the Defendants) appeal from the dis-

trict court’s December 23, 2011 order (Order), which granted

Manuel de Jesus Ortega Melendres, David and Jessica Rodri-

guez, Manuel Nieto, Jr., Velia Meraz, the organization Somos

America, and the class of individuals the named plaintiffs rep-

resent (collectively, the Plaintiffs) “partial injunctive relief”

prohibiting the Defendants from detaining any individual

“based only on knowledge or reasonable belief, without more,

that the person is unlawfully present within the United

States.” We have jurisdiction to review the district court’s

order under 28 U.S.C. § 1292(a)(1), and we affirm.

I.

The Plaintiffs contend that the Defendants have a “custom,

policy and practice of racial profiling toward Latino persons

11946 ORTEGA MELENDRES v. ARPAIO

in Maricopa County and an unconstitutional policy and prac-

tice of stopping Latino drivers and passengers pretextually

and without individualized suspicion or cause, and of subject-

ing them to different, burdensome, stigmatizing and injurious

treatment once stopped,” under the auspices of enforcing fed-

eral immigration laws and/or Arizona state immigration-

related laws. In particular, the Plaintiffs allege that, since Sep-

tember 2007, the Defendants and persons under their control

have conducted racially discriminatory traffic stops and

launched “crime suppression sweeps,” also known as “satura-

tion patrols,” targeting Latinos as part of their immigration

enforcement plan.

It is alleged that the Defendants have, for some time,

sought to enforce immigration-related laws. In 2006, as part

of a “crackdown” against illegal immigration, the Defendants

allegedly entered into an agreement with the United States

Immigration and Customs Enforcement (ICE) agency

whereby a number of the Defendants were cross-certified to

enforce federal civil immigration laws under section 287(g) of

the Immigration and Nationality Act (Act). See 8 U.S.C.

§ 1357(g) (providing for the enforcement of civil immigration

laws by local law enforcement agencies where the United

States Attorney General enters into a written agreement with

local officials). In 2009, however, ICE modified its agreement

with the Defendants such that the Defendants’ deputies no

longer had Act section 287(g) authority to enforce civil immi-

gration laws except in jails. The Plaintiffs allege that the

Defendants racially profiled Latinos in their immigration

enforcement program both before and after ICE modified its

agreement with the Defendants.

Each of the five named plaintiffs was stopped by defendant

officers during one of three traffic incidents. The named indi-

vidual plaintiffs, each of whom is of “Latino descent and, by

physical appearance, [a] person[ ] of color,” alleged that they

were stopped, detained, searched, and/or questioned by

Defendant officers pursuant to the Defendants’ policy or cus-

ORTEGA MELENDRES v. ARPAIO 11947

tom of racially profiling Latinos during traffic stops. Somos

America, a membership organization, has likewise alleged

that under the Defendants’ immigration enforcement program,

its members have been “unlawfully targeted, stopped, ques-

tioned and/or detained by” defendant officers because of their

race. The named plaintiffs further alleged that, just as they

have been harmed, similarly situated Latino individuals “have

been or will be in the future, stopped, detained, questioned or

searched by [the Defendants’] agents while driving or sitting

in a vehicle on a public roadway or parking area in Maricopa

County, Arizona.”

The Plaintiffs filed this putative class civil rights action

alleging that the Defendants’ racially discriminatory policy

violates the Fourth and Fourteenth Amendments to the United

States Constitution, Article II, section 8 of the Arizona Con-

stitution, and Title VI of the Civil Rights Act of 1964. The

Plaintiffs sought declaratory and injunctive relief to prevent

the Defendants from engaging in unlawful racial profiling and

other “racially motivated treatment” of the plaintiff class.

After discovery, the parties filed competing motions for

summary judgment. For their part, the Plaintiffs moved for

partial summary judgment on their Fourteenth Amendment

claim, contending that undisputed evidence established that

the Defendants racially profiled Latinos when conducting

their crime-suppression sweeps in response to racially

charged citizen requests. At the summary judgment hearing,

they also moved for summary judgment on Ortega Melen-

dres’s Fourth Amendment claim that the Defendants may not

detain a person based solely on suspicion about that person’s

unlawful immigration status. The Plaintiffs concurrently

sought certification of a class composed of “[a]ll Latino per-

sons who, since January 2007, have been or will be in the

future stopped, detained, questioned or searched by [the

Defendants’] agents while driving or sitting in a vehicle on a

public roadway or parking area in Maricopa County, Arizo-

na.”

11948 ORTEGA MELENDRES v. ARPAIO

The Defendants filed a competing motion for summary

judgment, challenging the Plaintiffs’ standing to seek declara-

tory and injunctive relief. The Defendants also sought sum-

mary judgment on the Plaintiffs’ Fourth Amendment claims,

arguing that the traffic stops of the named plaintiffs were

based on probable cause. Finally, the Defendants argued that

undisputed evidence established that the Defendants do not

engage in racial profiling and that the Plaintiffs’ Fourteenth

Amendment and Title VI claims must fail.

In ruling on the competing summary judgment motions, the

district court held that the Plaintiffs had standing to pursue

equitable relief on their Fourth Amendment, Fourteenth

Amendment, and Title VI claims. The district court likewise

certified the Plaintiffs’ proposed class. The court then granted

the Plaintiffs’ motion for partial summary judgment on their

Fourth Amendment claims and entered a preliminary injunc-

tion barring the Defendants from detaining an individual

based solely on reasonable suspicion or knowledge that the

individual is unlawfully present in the country. Finally, the

district court granted the Defendants’ motion for summary

judgment as to two named plaintiffs, but denied their remain-

ing motions and ordered that trial proceed on the Plaintiffs’

Fourth Amendment, Fourteenth Amendment, and Title VI

claims. The trial has been held, but the district court has not

yet issued a post-trial decision or final judgment.

II.

On appeal of the district court’s decision granting “partial

injunctive relief,” the Defendants ask us to address a number

of issues, including the district court’s: determination that the

Plaintiffs have standing to pursue injunctive relief on Fourth

Amendment grounds; statements of Fourth Amendment law;

decision to certify the plaintiff class; description of Arizona

Revised Statutes section 13-2929; and conclusion that the

Plaintiffs have standing to pursue their Fourteenth Amend-

ment and Title VI claims.

ORTEGA MELENDRES v. ARPAIO 11949

While the Defendants raise a number of issues in this

appeal, we emphasize that we have before us only an order

granting “partial injunctive relief.” Although the Defendants

attempt to style this appeal as one from permanent injunctive

relief, the district court has not entered final judgment in this

case. Indeed, the trial has only recently concluded and final

judgment remains on the horizon. Additionally, there is noth-

ing in the Order purporting to provide a permanent remedy.

Thus, we treat the Order as granting only preliminary injunc-

tive relief. As a result, our task on this appeal is to determine

whether the district court’s partial, preliminary injunctive

relief was appropriate—a limited form of review. See Zepeda

v. INS, 753 F.2d 719, 724 (9th Cir. 1983). Thus, except with

respect to those issues that we identify below, we need not

perform the searching review that the Defendants invite us to

undertake, as such review should be had only after the district

court enters a final judgment.

III.

We turn first to the extent of our jurisdiction to hear this

appeal. While we unquestionably have jurisdiction to hear an

interlocutory appeal of the district court’s preliminary injunc-

tion, see 28 U.S.C. § 1292(a)(1), we may also exercise pen-

dent appellate jurisdiction over any “otherwise non-

appealable ruling [that] is ‘inextricably intertwined’ with or

‘necessary to ensure meaningful review of’ the order properly

before us on interlocutory appeal,” Meredith v. Oregon, 321

F.3d 807, 813 (9th Cir. 2003), as amended, 326 F.3d 1030

(9th Cir. 2003), quoting Swint v. Chambers Cnty. Comm’n,

514 U.S. 35, 51 (1995). We have explained that “[d]istrict

court rulings are ‘inextricably intertwined’ with a preliminary

injunction when ‘the legal theories on which the issues

advance [are] . . . so intertwined that we must decide the pen-

dent issue in order to review the claims properly raised on

interlocutory appeal, or . . . resolution of the issue properly

raised on interlocutory appeal necessarily resolves the pen-

dent issue.’ ” Hendricks v. Bank of Am., N.A., 408 F.3d 1127,

11950 ORTEGA MELENDRES v. ARPAIO

1134 (9th Cir. 2005), quoting Meredith, 321 F.3d at 814. We

have also construed “necessary to ensure meaningful review”

narrowly to require “much more than a tangential relationship

to the decision properly before us on interlocutory appeal.”

Poulos v. Caesars World, Inc., 379 F.3d 654, 669 (9th Cir.

2004). Thus, we have explained that an issue is “necessary to

ensure meaningful review” where the issue “calls into ques-

tion the district court’s ‘authority to rule on a party’s motion

for a preliminary injunction.’ ” Hendricks, 408 F.3d at 1134,

quoting Meredith, 321 F.3d at 816.

Based on the above, we have exercised jurisdiction to

review issues related to sovereign and qualified immunity,

subject matter jurisdiction, and abstention. See Meredith, 321

F.3d at 816. Indeed, “the common thread” running through

our decisions to exercise our pendent jurisdiction “to ensure

meaningful review” is that pendent jurisdiction is appropriate

to review those issues that implicate “the very power the dis-

trict court used to issue the rulings then under consideration.”

Hendricks, 408 F.3d at 1134-35 (internal quotation marks

omitted).

We have emphasized, however, that we “should exercise

restraint in reviewing on interlocutory appeal otherwise non-

appealable [issues].” Meredith, 321 F.3d at 812. With this

consideration in mind, we are convinced that “meaningful

review” of this limited preliminary injunction at issue here

necessitates that we address only two otherwise non-

appealable pendent issues related to the district court’s author-

ity to enter class-wide injunctive relief: (1) whether the Plain-

tiffs lacked standing to pursue the Fourth-Amendment-related

injunction the district court ultimately ordered; and (2)

whether the district court erroneously certified the plaintiff

class. We address each in turn.

A.

First, whether the Plaintiffs had standing to pursue an

injunction on Fourth Amendment grounds plainly bears on the

ORTEGA MELENDRES v. ARPAIO 11951

authority of the district court to enter injunctive relief on those

grounds. See City of Los Angeles v. Cnty. of Kern, 581 F.3d

841, 845 (9th Cir. 2009) (explaining that Article III’s standing

requirements are jurisdictional). Accordingly, a review of the

Plaintiffs’ Fourth Amendment standing is “necessary to

ensure meaningful review” of the district court’s Fourth-

Amendment-related injunction. Because the injunction relates

only to the Fourth Amendment, however, we will not exercise

our pendent jurisdiction to review the Defendants’ additional

argument that the Plaintiffs lacked standing to bring their

Fourteenth Amendment and Title VI claims.

The Defendants argue that the Plaintiffs lack standing to

pursue their Fourth Amendment claims because “[n]one of the

named Plaintiffs can demonstrate a ‘credible’ and ‘genuine’

threat of future traffic stop interaction with the [Defendants],

or any likely future harm by the [Defendants]. The named

Plaintiffs [thus] lack the standing to seek equitable relief

because ‘it is not sufficiently likely that [Plaintiffs] will again

[be] stopped by the [Defendants].’ ” (Quoting Hodgers-

Durgin v. de la Vina, 199 F.3d 1037, 1044 (1999) (en banc)).

[1] “Although questions of standing are reviewed de novo,

we will affirm a district court’s ruling on standing when the

court has determined that the alleged threatened injury is suf-

ficiently likely to occur, unless that determination is clearly

erroneous or incorrect as a matter of law.” Mayfield v. United

States, 599 F.3d 964, 970 (9th Cir.), cert. denied, 131 S. Ct.

503 (2010); see also Armstrong v. Davis, 275 F.3d 849, 861

(9th Cir. 2001), abrogated on other grounds by Johnson v.

California, 543 U.S. 499, 504-05 (2005). To have standing to

assert a claim for prospective injunctive relief, a plaintiff must

demonstrate “that he is realistically threatened by a repetition

of [the violation].” City of Los Angeles v. Lyons, 461 U.S. 95,

109 (1983). We have “enumerated two ways in which a plain-

tiff can demonstrate that such injury is likely to recur.” May-

field, 599 F.3d at 971. “First, a plaintiff may show that the

defendant had, at the time of the injury, a written policy, and

11952 ORTEGA MELENDRES v. ARPAIO

that the injury ‘stems from’ that policy.” Armstrong, 275 F.3d

at 861. “Second, the plaintiff may demonstrate that the harm

is part of a ‘pattern of officially sanctioned . . . behavior, vio-

lative of the plaintiffs’ [federal] rights.’ ” Id. (alterations in

original), quoting LaDuke v. Nelson, 762 F.2d 1318, 1323

(9th Cir. 1985).

[2] Here, the district court expressly found that the Plain-

tiffs “are sufficiently likely to be seized in violation of the

Fourth Amendment.” That finding rests on the Defendants’

express claim of “authority to detain persons [they believe]

are not authorized to be in the country . . . . ‘based only upon

a reasonable suspicion, without more, that the person is not

legally present within the United States.’ ” The Plaintiffs also

presented evidence that the Defendants have engaged in a pat-

tern or practice of conducting traffic stops as part of “satura-

tion patrols” or “sweeps” targeting Latinos suspected of being

illegally present in the country. Exposure to this policy while

going about one’s daily life, the district court determined,

constitutes “ongoing harm and evidence that there is ‘suffi-

cient likelihood’ that the Plaintiffs’ rights will be violated

again.” The district court specifically found that the Defen-

dants had a policy and practice of violating the Plaintiffs’

Fourth Amendment rights. Thus, although it held that the like-

lihood of a future stop of a particular individual plaintiff may

not be “high,” we are not convinced that the district court

erred in determining that future injury was nevertheless “suf-

ficiently likely” given the Defendants’ stated policy and prac-

tice. See Mayfield, 599 F.3d at 970-71 (looking to the

government’s policy and pattern of officially sanctioned

unlawful behavior to determine standing); see also Lyons, 461

U.S. at 106 (explaining that a victim of police misconduct

could seek an injunction where the government “ordered or

authorized police officers” to enforce an unconstitutional pol-

icy).

Further, while standing is not appropriate where a plaintiff

can avoid injury by avoiding illegal conduct, see Armstrong,

ORTEGA MELENDRES v. ARPAIO 11953

275 F.3d at 865, the Defendants are incorrect that the Plain-

tiffs may avoid being detained by simply avoiding criminal

activity. Indeed, the Defendants alleged that they have author-

ity to detain “individuals based only on reasonable suspicion

or probable cause that a person is not authorized to be in the

United States.” Because, as will be explained in greater detail

below, mere unlawful presence in our country is not a crime,

see Arizona v. United States, 132 S. Ct. 2492, 2505 (2012),

even if the Plaintiffs comply with all criminal laws enforce-

able by the Defendants, under the Defendants’ view of the

Fourth Amendment, the Plaintiffs remain vulnerable to

unlawful detention solely because an officer has reasonable

suspicion or knowledge that they are not authorized to be

present in the United States. Nor are we persuaded by the

Defendants’ assertion that the Plaintiffs can avoid the claimed

injury merely by obeying all traffic laws. Some Plaintiffs

were only passengers in vehicles that the Defendants stopped;

there is no claim that those passengers disobeyed traffic laws.

Plaintiff-drivers fare no better because the Defendants could

initiate a stop with probable cause that a traffic violation had

occurred—whether or not the Plaintiff-drivers had actually

committed a traffic infraction—and then proceed to detain the

Plaintiff-drivers based solely on reasonable suspicion as to the

legality of their presence in the United States. Indeed, one

Plaintiff-driver was released after detention without being

issued any traffic citation. Thus, even as to the Plaintiff-

drivers, adherence to traffic laws fails to assure that they

would not face future injury.

[3] In sum, we conclude that the district court did not

clearly err in finding that the threatened constitutional injury

was likely to occur again, and thus, there was no error in the

determination that the Plaintiffs had standing to pursue equita-

ble relief as to their Fourth Amendment claims.

We need not address whether Somos America, an organiza-

tion, met the requirements for associational standing. “The

general rule applicable to federal court suits with multiple

11954 ORTEGA MELENDRES v. ARPAIO

plaintiffs is that once the court determines that one of the

plaintiffs has standing, it need not decide the standing of the

others.” Leonard v. Clark, 12 F.3d 885, 888 (9th Cir. 1993).

B.

We next turn to the Defendants’ claims that we should

exercise our pendent jurisdiction to review the district court’s

decision to certify the plaintiff class. We agree that whether

the class was appropriately certified bears on our ability to

review the class-wide injunction in this interlocutory appeal.

As we have explained before, where an injunction provides

class-wide relief, “effective review of the injunction requires

review of the class certification.” Paige v. California, 102

F.3d 1035, 1039 (9th Cir. 1996).

[4] But the Defendants do not challenge the district court’s

class certification itself; rather, they contend that certification

of the class must be reversed and remanded because (1) the

district court erroneously concluded that the Defendants may

not detain persons based only on a reasonable suspicion that

they may be unlawfully present in the United States, and (2)

the district court erred in holding that the Plaintiffs have

standing to seek injunctive relief. We address the former

claim as we consider the preliminary injunction below. As to

the latter claim, we have already concluded that the district

court correctly determined that the Plaintiffs had Fourth

Amendment standing. Thus, while class certification may be

appropriately reviewed under a pendent jurisdiction theory,

we need not go into any greater detail at this time as to the

district court’s class-certification analysis. In any event, as the

district court recognized, class certification is subject to

amendment at any time before final judgment. Accordingly,

complete review of the class certification order is best had

once a final judgment has been entered.

[5] Mindful of the restraint that we must exercise in deter-

mining the scope of our pendent jurisdiction, we conclude that

ORTEGA MELENDRES v. ARPAIO 11955

no other issue the Defendants raise in this interlocutory appeal

is “inextricably intertwined with” or “necessary to ensure

meaningful review” of the preliminary injunction decision.

IV.

We turn now to our consideration of the preliminary

injunction issued by the district court. We review a district

court’s preliminary injunction for an abuse of discretion. Far-

ris v. Seabrook, 677 F.3d 858, 864 (9th Cir. 2012). “ ‘Under

this standard, [a]s long as the district court got the law right,

it will not be reversed simply because the appellate court

would have arrived at a different result if it had applied the

law to the facts of the case.’ ” Thalheimer v. City of San

Diego, 645 F.3d 1109, 1115 (9th Cir. 2011) (alteration in

original), quoting Dominguez v. Schwarzenegger, 596 F.3d

1087, 1092 (9th Cir. 2010).

[6] To obtain a preliminary injunction, a plaintiff “must

establish that he is likely to succeed on the merits, that he is

likely to suffer irreparable harm in the absence of preliminary

relief, that the balance of equities tips in his favor, and that an

injunction is in the public interest.” Winter v. Natural Res.

Def. Council, Inc., 555 U.S. 7, 20 (2008); see also Stormans,

Inc. v. Selecky, 586 F.3d 1109, 1126-27 (9th Cir. 2009) (aban-

doning the prior preliminary injunction test and applying Win-

ter). The district court’s Order granted “the certified class . . .

partial injunctive relief enjoining [the] Defendants from

detaining any person based solely on knowledge, without

more, that the person is in the country without lawful authori-

ty.” We now determine whether, under the Winter factors, the

district court abused its discretion entering this preliminary

injunction prohibiting the Defendants from detaining individ-

uals solely because they are unlawfully present in the United

States.

A.

We first conclude that the Plaintiffs were likely to succeed

on their claim that without more, the Fourth Amendment does

11956 ORTEGA MELENDRES v. ARPAIO

not permit a stop or detention based solely on unlawful pres-

ence. Absent probable cause to arrest, a law enforcement offi-

cer may conduct an investigatory stop “when [that] police

officer reasonably suspects that the person apprehended is

committing or has committed a crime.” Arizona v. Johnson,

555 U.S. 323, 326 (2009). The Supreme Court has explained

that the investigatory-stop standard is met in the traffic-stop

setting “whenever it is lawful for police to detain an automo-

bile and its occupants pending inquiry into a vehicular viola-

tion.” Id. at 327. Nevertheless, a detention beyond the

duration of the initial traffic stop must be supported indepen-

dently by reasonable suspicion of criminality. Id. at 333; see

also United States v. Mendez, 476 F.3d 1077, 1080-81 (9th

Cir. 2007). Accordingly, possible criminality is key to any

Terry investigatory stop or prolonged detention. See Terry v.

Ohio, 392 U.S. 1, 30 (1968). Absent suspicion that a “suspect

is engaged in, or is about to engage in, criminal activity,” law

enforcement may not stop or detain an individual. United

States v. Sandoval, 390 F.3d 1077, 1080 (9th Cir. 2004).

We have long made clear that, unlike illegal entry, mere

unauthorized presence in the United States is not a crime. See

Martinez-Medina v. Holder, 673 F.3d 1029, 1036 (9th Cir.

2011) (“Nor is there any other federal criminal statute making

unlawful presence in the United States, alone, a federal crime,

although an alien’s willful failure to register his presence in

the United States when required to do so is a crime, and other

criminal statutes may be applicable in a particular circum-

stance.” (citation omitted)); Gonzales v. City of Peoria, 722

F.2d 468, 476-77 (9th Cir. 1983) (explaining that illegal pres-

ence is “only a civil violation”), overruled on other grounds

by Hodgers-Durgin, 199 F.3d 1037. The Supreme Court

recently affirmed that, “[a]s a general rule, it is not a crime for

a removable alien to remain present in the United States.” Ari-

zona v. United States, 132 S. Ct. at 2505.

Here, the district court enjoined the Defendants from

detaining individuals based solely on reasonable suspicion or

ORTEGA MELENDRES v. ARPAIO 11957

knowledge that a person was unlawfully present in the United

States. The Defendants acknowledge that, although they pre-

viously had authority under section 287(g) of the Act to

enforce federal civil immigration law, they no longer have

authority to do so except in the jail context. Accordingly, if

the Defendants are to enforce immigration-related laws, they

must enforce only immigration-related laws that are criminal

in nature, which they are permitted to do even without section

287(g) authority. See Gonzales, 722 F.2d at 475 (holding that

“federal law does not preclude local enforcement of the crimi-

nal provisions” of federal immigration law). That enforcement

must be consistent with the Fourth Amendment requirement

that a Terry investigative stop be premised on criminality.

Thus, because 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.”

Terry, 392 U.S. at 30. Although we have recognized that “ille-

gal presence may be some indication of illegal entry,”

Martinez-Medina, 673 F.3d at 1035 (internal quotation marks

omitted), unlawful presence need not result from illegal entry.

For example, an individual may have entered the country law-

fully, but overstayed his or her visa. See Gonzales, 722 F.2d

at 476. In any event, nothing in Martinez-Medina suggests

that presence alone is sufficient to justify a stop by the Defen-

dants’ officers who are not empowered to enforce civil immi-

gration violations.

[7] While the seizures of the named plaintiffs based on

traffic violations may have been supported by reasonable sus-

picion, any extension of their detention must be supported by

additional suspicion of criminality. Unlawful presence is not

criminal. Nor does illegal presence, without more, give rise to

reasonable suspicion of violation of Arizona’s human smug-

gling statute, Ariz. Rev. Stat. § 13-2319, as the Defendants

maintain. That statute provides: “It is unlawful for a person to

intentionally engage in the smuggling of human beings for

profit or commercial purpose.” Id. § 13-2319(A). It defines

“smuggling of human beings” as:

11958 ORTEGA MELENDRES v. ARPAIO

the transportation, procurement of transportation or

use of property or real property by a person or an

entity that knows or has reason to know that the per-

son or persons transported or to be transported are

not United States citizens, permanent resident aliens

or persons otherwise lawfully in this state or have

attempted to enter, entered or remained in the United

States in violation of law.

Id. § 13-2319(F)(3). Absent any reason to suspect a profit or

commercial purpose, the unlawful presence in the country of

one person in an automobile, without more, does not give rise

to reasonable suspicion that the driver or occupants are violat-

ing the human smuggling statute.1 We therefore conclude that

the Plaintiffs were likely to succeed on the merits of the

Fourth Amendment argument that the Defendants may not

detain individuals solely because of unlawful presence.

The Defendants assert that the district court’s Fourth

Amendment injunction rests on incorrect conclusions of law:

that the district court employed an “all-the-elements” test

and/or used a “divide-and-conquer” strategy in concluding

that its injunction was appropriate. The district court, how-

ever, expressly identified the correct “totality of the circum-

stances” test in its Fourth Amendment analysis when arriving

at its preliminary injunction decision. Indeed, the district court

explained that “[i]f the totality of the circumstances do[es] not

provide reasonable suspicion that a person is about to commit

or is committing a crime, then [the Defendants’ officers] can-

not stop the person.” To the extent that portions of the district

court’s reasoning leading up to the preliminary injunction

could be read to suggest that the district court departed from

the well-established “totality of the circumstances” test, we

emphasize that we are reviewing only the content of the pre-

liminary injunction itself, not the reasoning that led to it.

Under that narrow review, we are convinced that the district

1

The validity of section 13-2319 is not challenged in this litigation.

ORTEGA MELENDRES v. ARPAIO 11959

court did not abuse its discretion in determining likely success

on the merits.

B.

[8] We now turn to the next part of the preliminary injunc-

tion test: irreparable harm. It is well established that the depri-

vation of constitutional rights “unquestionably constitutes

irreparable injury.” Elrod v. Burns, 427 U.S. 347, 373 (1976).

The Defendants’ representations during the summary judg-

ment hearing, reasonably interpreted, demonstrate that the

Defendants operated under the impression that they have

authority to detain individuals solely because of their immi-

gration status—a purely civil matter. From those representa-

tions, it was reasonable for the district court to conclude that

the Plaintiffs faced a real possibility that they would again be

stopped or detained and subjected to unlawful detention on

the basis of their unlawful presence alone. Accordingly, there

was no abuse of discretion in concluding that the Plaintiffs

faced irreparable harm in the form of a deprivation of consti-

tutional rights absent a preliminary injunction.

C.

[9] Furthermore, there was no abuse of discretion in the

district court’s determination that the equities favor issuance

of a narrow, limited preliminary injunction. The Defendants

have not established that they will be harmed if this injunction

is permitted to stand while the district court reaches a final

judgment on the merits. The Defendants repeatedly repre-

sented during oral argument—in contradiction to their repre-

sentations to the district court during the summary judgment

hearing—that they do not detain individuals based only on

immigration status, nor do they desire to do so. The Defen-

dants cannot be harmed by an order enjoining an action they

will not take. Further, the district court’s injunction is very

narrow and does “not enjoin[ ] [the Defendants] from enforc-

ing valid state laws, or detaining individuals when officers

11960 ORTEGA MELENDRES v. ARPAIO

have reasonable suspicion that individuals are violating a state

criminal law.” Thus, the Defendants’ ability to enforce local

and even federal criminal law is not impaired by the injunc-

tion. Accordingly, we conclude that the district court did not

abuse its discretion in concluding that the balance of equities

tip in the Plaintiffs’ favor.

D.

[10] Likewise, the Defendants make no argument that an

injunction is not in the public interest. We agreed in Sammar-

tano v. First Judicial District Court, 303 F.3d 959 (9th Cir.

2002), that “ ‘it is always in the public interest to prevent the

violation of a party’s constitutional rights.’ ” Id. at 974, quot-

ing G & V Lounge, Inc. v. Mich. Liquor Control Comm’n, 23

F.3d 1071, 1079 (6th Cir. 1994).

[11] In sum, we hold that the district court did not abuse

its discretion in granting preliminary injunctive relief.

V.

We applaud how the district court has expedited this sensi-

tive case and moved with appropriate speed towards a final

disposition. We have long

emphasize[d] the ways in which review of an order

granting or denying a preliminary injunction differs

from review of an order involving a permanent

injunction because we are persuaded that in some

cases, parties appeal orders granting or denying

motions for preliminary injunctions in order to ascer-

tain the views of the appellate court on the merits of

the litigation. Because of the limited scope of our

review of the law applied by the district court and

because the fully developed factual record may be

materially different from that initially before the dis-

trict court, our disposition of appeals from most pre-

ORTEGA MELENDRES v. ARPAIO 11961

liminary injunctions may provide little guidance as

to the appropriate disposition on the merits. Further-

more, in many cases, appeal of district courts’ pre-

liminary injunctions will result in unnecessary delay

to the parties and inefficient use of judicial

resources. We think it likely that this case, for

instance, could have proceeded to a disposition on

the merits in far less time than it took to process this

appeal. Furthermore, our disposition of this appeal

will affect the rights of the parties only until the dis-

trict court renders judgment on the merits of the

case, at which time the losing party may again

appeal.

Sports Form, Inc. v. United Press Int’l, Inc, 686 F.2d 750, 753

(9th Cir. 1982). Here, it appears that the district court heeded

our direction to proceed to trial and otherwise move towards

a final judgment in this case without waiting for our interlocu-

tory review. As a result, final judgment is now imminent and

we need only exercise very limited review at this time. If

there is an appeal from the trial court’s final judgment, this

panel will retain jurisdiction to hear any subsequent appeal.

At that point, we may appropriately consider the broader

claims that the Defendants raise in this appeal, if necessary.

AFFIRMED.