Antonio Lopez-Aguilar v. State of Indiana

In the

United States Court of Appeals

For the Seventh Circuit

____________________

No. 18-1050

ANTONIO LOPEZ-AGUILAR,

Plaintiff-Appellee,

v.

MARION COUNTY SHERIFF’S DEPARTMENT,

et al.,

Defendants-Appellees.

APPEAL OF: STATE OF INDIANA,

Proposed Intervenor.

____________________

Appeal from the United States District Court for the

Southern District of Indiana, Indianapolis Division.

No. 1:16-cv-02457-SEB-TAB — Sarah Evans Barker, Judge.

____________________

ARGUED SEPTEMBER 7, 2018 — DECIDED MAY 9, 2019

____________________

Before FLAUM, RIPPLE, and BARRETT, Circuit Judges.

RIPPLE, Circuit Judge. Antonio Lopez-Aguilar brought this

action against the Marion County Sheriff’s Department (“the

Sheriff’s Department”), Sheriff John R. Layton, in both his

official capacity and his individual capacity, and a sergeant

2 No. 18-1050

of the Sheriff’s Department, in his individual capacity (to-

gether, “the defendants”). His complaint set forth one claim

under 42 U.S.C. § 1983. He alleged that when the defendants

detained him for transfer into the custody of Immigration

and Customs Enforcement (“ICE”), they violated his Fourth

Amendment rights. 1 Mr. Lopez-Aguilar also brought sup-

plemental claims, based on Indiana law, for false arrest and

false imprisonment. His complaint sought damages and a

declaration that the defendants had violated his rights by

detaining him. He did not seek injunctive relief.

The parties later proposed, and the district court subse-

quently entered, a Stipulated Final Judgment and Order for

Permanent Injunction (“the Stipulated Judgment”), which

granted declaratory and prospective injunctive relief but

dismissed with prejudice Mr. Lopez-Aguilar’s damages

claims. Following the entry of final judgment, but within the

time for appeal, the State of Indiana (“the State” or “Indi-

ana”) moved to intervene for the purpose of appealing the

district court’s order entering the Stipulated Judgment. The

district court denied Indiana’s motion to intervene. The State

now appeals that denial.

Indiana has standing for the purpose of bringing this ap-

peal. The State’s motion to intervene was timely, and it also

fulfilled the necessary conditions for intervention of right.

Finally, the State has demonstrated that the district court

was without jurisdiction to enter prospective injunctive re-

1The Fourth Amendment to the Constitution of the United States is

made applicable to the states by the Fourteenth Amendment. See Mapp v.

Ohio, 367 U.S. 643, 655 (1961).

No. 18-1050 3

lief. Therefore, for the reasons set forth more fully below, we

reverse the judgment of the district court and remand the

case for proceedings consistent with this opinion.

I.

BACKGROUND

A.

On September 18, 2014, Mr. Lopez-Aguilar came to the

Marion County Courthouse in Indianapolis to attend a hear-

ing on a criminal misdemeanor complaint charging him with

driving without a license. When he arrived, officers of the

Sheriff’s Department informed him and his attorney that an

ICE officer had come to the courthouse earlier that day look-

2

ing for him. He alleges that a Sergeant Davis took him into

custody. Later that day, Mr. Lopez-Aguilar appeared before

the traffic court and resolved his misdemeanor charge. That

disposition did not include a sentence of incarceration. Ser-

geant Davis nevertheless again took Mr. Lopez-Aguilar into

custody, informing him that he would be held until the Sher-

iff’s Department could transfer him to ICE’s custody.

Mr. Lopez-Aguilar consequently remained at the Marion

County jail overnight; the next day, county officers trans-

ferred him to ICE. Neither federal nor state authorities

charged Mr. Lopez-Aguilar with a crime, and he did not ap-

2 Kevin Wies, the ICE officer who claimed responsibility for

Mr. Lopez-Aguilar’s immigration detention and arrest, stated in a decla-

ration that, based on a fingerprint match in the ICE database, he had

asked the Sheriff’s Department to communicate with him about

Mr. Lopez-Aguilar. According to Officer Wies, ICE never issued either a

written or an informal detainer for Mr. Lopez-Aguilar.

4 No. 18-1050

pear before a judicial officer. ICE subsequently released him

on his own recognizance. An unspecified type of “immigra-

tion case” against Mr. Lopez-Aguilar was pending when he

later filed this action. 3

B.

On September 15, 2016, Mr. Lopez-Aguilar initiated this

litigation by filing a complaint against the Sheriff’s Depart-

ment, Sheriff Layton, and Sergeant Davis. As noted earlier,

he asserted a claim for violation of the Fourth Amendment

under 42 U.S.C. § 1983 as well as state law claims for false

arrest and false imprisonment. Following the exchange of

discovery, the parties agreed to settle the case to “avoid the

cost and uncertainty of continued litigation.” 4 Specifically,

on July 10, 2017, Mr. Lopez-Aguilar and the defendants

jointly proposed to the district court a Stipulated Judgment.

Indiana news outlets reported this proposed Stipulated

Judgment in the days following its filing. On July 13, 2017,

the United States filed a request for time to submit a plead-

ing addressing the parties’ proposed settlement. The district

court granted that motion, and, on August 4, 2017, the Unit-

ed States filed a statement of interest objecting to the Stipu-

lated Judgment. The news media also reported the Govern-

ment’s opposition to the parties’ agreement.

In its statement, the United States noted that the Immi-

gration and Nationality Act (“INA”) authorized the Sheriff’s

Department to cooperate with the enforcement of federal

immigration laws. Further, the Government submitted, the

3 R.1 ¶ 23.

4 Lopez-Aguilar Br. 6.

No. 18-1050 5

Sheriff’s Department’s cooperation with ICE did not violate

the Fourth Amendment. The United States disputed whether

the defendants’ detention of Mr. Lopez-Aguilar amounted to

an unlawful seizure. Even if there had been an unlawful sei-

zure, continued the Government, the permanent injunction

was improper because it imposed relief far beyond any actu-

al injury to Mr. Lopez-Aguilar.

After considering the positions of the parties and the

Government, the district court approved the Stipulated

Judgment and then entered a final judgment declaring that:

[S]eizures by the defendants of any person

based solely on detention requests from [ICE],

in whatever form, or on removal orders from

an immigration court, violate the Fourth

Amendment, unless ICE supplies, or the de-

fendants otherwise possess, probable cause to

believe that the individual to be detained has

committed a criminal offense; [and]

… [F]or the avoidance of doubt, an ICE re-

quest that defendants seize or hold an individ-

ual in custody based solely on a civil immigra-

tion violation does not justify a Fourth

Amendment seizure … . 5

Further, the district court permanently enjoined the de-

fendants from “seizing or detaining any person based solely

on detention requests from ICE, in whatever form, or on re-

moval orders from an immigration court, unless ICE sup-

5 R.50 at 1–2.

6 No. 18-1050

plies a warrant signed by a judge or otherwise supplies

probable cause that the individual to be detained has com-

mitted a criminal offense.” 6

The district court also issued an opinion to explain its

approval of the Stipulated Judgment. The court first consid-

ered whether the Stipulated Judgment would require the

Sheriff’s Department to violate Indiana law. A statutory

provision prohibits a governmental body, such as the Sher-

iff’s Department, from implementing a policy that “prohibits

or in any way restricts” law enforcement officers from taking

certain actions “with regard to information of the citizenship

or immigration status” of a person, such as

“[c]ommunicating or cooperating with federal officials.” Ind.

Code § 5-2-18.2-3. The district court determined, however,

that because the Stipulated Judgment only prohibited the

Sheriff’s Department from “seizing” or “detaining” certain

individuals, “not from communicating with or about them,”

the Stipulated Judgment posed no conflict. 7 The district

court then examined another provision that forbids a state

governmental body from “limit[ing] or restrict[ing] the en-

forcement of federal immigration laws to less than the full

extent permitted by federal law.” Ind. Code § 5-2-18.2-4. The

district court conceded difficulty in interpreting and apply-

ing this provision. It nevertheless determined that, if the

provision simply prohibits a state governmental body from

requiring or permitting anything less than cooperation with

federal immigration enforcement to the full extent such co-

6 Id. at 2.

7 R.49 at 17.

No. 18-1050 7

operation is permitted by federal law, there is no conflict

with the Stipulated Judgment. In the district court’s view,

without an express agreement with the United States Attor-

ney General or some other Congressionally-approved ar-

rangement, state cooperation with federal immigration au-

thorities did not contemplate state enforcement of removal

orders or ICE detainers. The INA preempted any such re-

quirement. Additionally, said the court, any such state en-

forcement absent probable cause would violate the Fourth

Amendment. Accordingly, the district court found that the

Stipulated Judgment did not require the Sheriff’s Depart-

ment to violate Indiana law. 8

The district court next considered whether the Stipulated

Judgment complied with the strictures of Local No. 93, Inter-

national Association of Firefighters v. City of Cleveland, 478 U.S.

501 (1986). That case requires the district court to determine

that a proposed consent decree “(1) spring[s] from and

serve[s] to resolve a dispute within the court’s subject matter

jurisdiction; (2) come[s] within the general scope of the case

made by the pleadings; and (3) further[s] the objectives of

the law upon which the complaint was based.” Komyatti v.

Bayh, 96 F.3d 955, 960 (7th Cir. 1996) (quoting Local No. 93,

8 The district court also determined that the Stipulated Judgment did not

conflict with Indiana Code §§ 5-2-18.2-5, 6. Section 5 creates a private

right of action for violations of Chapter 18.2, id. § 5-2-18.2-5, and Section

6 requires a state court that finds a knowing or intentional violation of

this chapter to enjoin the violation, id. § 5-2-18.2-6. According to the dis-

trict court, because these provisions “impose[] no duties” on the Sheriff’s

Department, there was no conflict. R.49 at 17. The State does not chal-

lenge the district court’s rulings regarding Sections 5 and 6 in this ap-

peal.

8 No. 18-1050

478 U.S. at 525) (alteration omitted) (internal quotation

marks omitted). The district court concluded that the Stipu-

lated Judgment satisfied these requirements because: (1) it

would resolve Mr. Lopez-Aguilar’s § 1983 claim, which was

within the court’s subject-matter jurisdiction, by terminating

the litigation; (2) restricting the defendants’ ability to coop-

erate with ICE was within the scope of Mr. Lopez-Aguilar’s

complaint that the defendants had unlawfully seized and

detained him; and (3) the Stipulated Judgment “further[ed]

Fourth Amendment values” by limiting “state intrusions on

individual privacy.” 9 Further, “to the extent the remedy in

the Stipulated Judgment exceed[ed] the Fourth Amend-

ment’s requirements,” the district court ruled, it was “direct-

ly related to the elimination of the condition alleged to of-

fend the Fourth Amendment.” 10

Finally, the district court evaluated whether the Stipulat-

ed Judgment was fair and reasonable. The district court

acknowledged that Mr. Lopez-Aguilar “appear[ed] to have a

strong case,” but noted that “litigating the merits” would

involve difficult disputes over the defendants’ qualified im-

munity defense and the facts surrounding his detention.11

Finally, the district court considered the Government’s posi-

tion. It rejected the Government’s view that the relief ex-

ceeded the scope of the alleged injury and therefore violated

the rule set forth in City of Los Angeles v. Lyons, 461 U.S. 95

(1983). In the court’s view, “if Indiana law does not conflict

9 R.49 at 31.

10 Id. at 32.

11 Id. at 33.

No. 18-1050 9

with the Stipulated Judgment, then Marion County and

Lopez-Aguilar are free to contract for nearly any remedy

12

they desire.” Finally, the court determined that the Stipu-

lated Judgment was consistent with the public interest and

would be judicially manageable.

The district court approved and entered the Stipulated

Judgment on November 7, 2017. According to the State, fol-

lowing the entry of final judgment, “an attorney at the Unit-

ed States Department of Justice informally advised the Office

of the Indiana Attorney General that the State may have in-

13

terests at stake in the case.” Consequently, on December 4,

2017, the State moved for intervention of right or, alterna-

tively, for permissive intervention, in order to appeal the dis-

trict court’s order entering the Stipulated Judgment. On the

same date, the State requested a thirty-day extension of time

to file a notice of appeal, which the district court granted.

The district court concluded that it was appropriate to grant

the State’s motion for extension of time given that “[t]he

State was not involved in, and did not necessarily have

cause to know of, the course of litigation in this case before

filing its intervention and extension motions, and appear[ed]

to have sought to protect its interests as soon as was practi-

14

cable upon learning of the Stipulated Judgment.”

Mr. Lopez-Aguilar and the defendants opposed the

State’s request to intervene, and, on January 5, 2018, the dis-

12 Id. at 34.

13 Appellant’s Br. 14.

14 R.58 at 4 (emphasis omitted).

10 No. 18-1050

trict court denied the State’s motion. First, the district court

found that the State had failed to establish Article III stand-

ing to intervene because it had not demonstrated an inju-

ry-in-fact and because any injury suffered by the State

would not be redressable by taking an appeal. The court

acknowledged that a state has a legally protected interest in

the continued enforceability of its laws and that this interest

is harmed when a court holds that a state law is unconstitu-

tional. But the district court reasoned that it had not held a

state law unconstitutional; it had simply construed a state

statute as not requiring that law enforcement officers coop-

erate with removal orders, standing alone, or with immigra-

tion orders, standing alone. A disagreement about the inter-

pretation of a statute is not, held the district court, sufficient

to establish a cognizable injury-in-fact. The district court fur-

ther held that any injury the State suffered was not redressa-

ble. Relying on our decisions in 1000 Friends of Wisconsin Inc.

v. United States Department of Transportation, 860 F.3d 480 (7th

Cir. 2017), and Kendall-Jackson Winery, Ltd. v. Branson, 212

F.3d 995 (7th Cir. 2000), the court concluded that any judicial

relief obtained on appeal (i.e., vacation of the Stipulated

Judgment) would remedy the State’s injury only in a contin-

gent and collateral way.

The district court went on to say that, even if Indiana had

standing to intervene, its motion would fail under Federal

Rule of Civil Procedure 24 because it was untimely. Further,

the court continued, even assuming that the motion was

timely, the State was not entitled to intervene as of right be-

cause it had not asserted “a direct, significant, and protecta-

ble interest unique to the State which will be impaired by the

No. 18-1050 11

15

denial of its motion to intervene.” Finally, the district court

held that the State was not entitled to permissive interven-

tion because it had failed to satisfy the requirements of Rule

24(b). The State timely appealed from the denial of interven-

tion.

II.

DISCUSSION

A.

In reviewing the district court’s decision, we begin with a

basic principle: “It goes without saying that those who seek

to invoke the jurisdiction of the federal courts must satisfy

the threshold requirement imposed by Art. III of the Consti-

tution by alleging an actual case or controversy.” Lyons, 461

U.S. at 101. We therefore must examine, as a threshold mat-

ter, whether the State of Indiana has the requisite standing to

intervene in this case. This is a question of law, which we

review de novo. Winkler v. Gates, 481 F.3d 977, 982 (7th Cir.

2007).

To establish standing, a plaintiff must satisfy three crite-

ria. Lujan v. Defenders of Wildlife, 504 U.S. 555, 560 (1992).

First, the plaintiff must, as an “irreducible constitutional

minimum,” demonstrate “injury in fact,” “an invasion of a

legally protected interest” which is both “concrete and par-

ticularized,” not “conjectural or hypothetical.” Id. (internal

quotation marks omitted). “Second, there must be a causal

connection between the injury and the conduct complained

of—the injury has to be ‘fairly … trace[able] to the chal-

15 R.62 at 17.

12 No. 18-1050

lenged action of the defendant … .’” Id. (quoting Simon v. E.

Ky. Welfare Rights Org., 426 U.S. 26, 41 (1976)). Third, the

plaintiff must demonstrate that a favorable decision by the

court is likely to remedy the claimed injury. Id. at 561. Here,

two of these factors—whether the State suffered an injury-

in-fact and whether its claimed injury can be redressed by

this court—deserve a close examination.

We first consider whether the State has demonstrated

sufficient injury-in-fact. The State contends that the Stipulat-

ed Judgment interferes directly and substantially with the use

of its police power to cooperate with the federal government

in the enforcement of the Country’s immigration laws.

Mr. Lopez-Aguilar, agreeing with the district court, empha-

sizes that the injunction does not render the state statutes

unconstitutional; it merely interprets them. In his view, Indi-

ana’s injury is therefore not a significant one.

Mr. Lopez-Aguilar further suggests that if the State could

intervene in any litigation where its Attorney General disa-

greed with a judicial interpretation of a state statute, the

State would have the right to intervene in all sorts of private

litigation.

Mr. Lopez-Aguilar’s characterization artificially mini-

mizes the particular interest that the State seeks to vindicate

here. Indiana seeks to protect a state prerogative of constitu-

tional dimension. The Supreme Court has recognized specif-

ically that a state has a cognizable interest sufficient to estab-

lish Article III standing in the “continued enforceability of its

own statutes,” even when another party with an aligned in-

terest has determined not to appeal. Maine v. Taylor, 477 U.S.

131, 137 (1986). Although the district court did not declare

Section 4 unconstitutional in all respects, it did hold that

No. 18-1050 13

Fourth Amendment considerations and the preemptive ef-

fect of the INA required that the statute be given a restrictive

reading. That reading is so restrictive as to preclude state of-

ficers from cooperating with federal officers with respect to

ICE detainers or immigration court removal orders. The dis-

trict court’s interpretation of the statute, although not a total

declaration of unconstitutionality, restricts significantly the

vitality of the statute and the capacity of the State to cooper-

ate with the federal government. Indiana has demonstrated

that it has suffered a cognizable injury sufficient for standing

to appeal. See Taylor, 477 U.S. at 137 (holding that the State of

Maine, an intervenor in the district court and the only ap-

pealing party, had standing to appeal because, “if the judg-

ment of the Court of Appeals [was] left undisturbed,” Maine

would “be bound by the conclusive adjudication” that its

law was unenforceable).

We next consider whether the State’s claimed injury is

redressable. Mr. Lopez-Aguilar observes that the district

court’s injunction runs solely against Marion County offi-

cials. It does not run against any state official. In his view,

we could not grant Indiana relief because it seeks to set aside

an injunction against a non-appealing party. He views this

rule as an ironclad one, admitting of no exceptions. To sup-

port this broad assertion, Mr. Lopez-Aguilar invites our at-

tention to our decision in Kendall-Jackson Winery. There, three

suppliers of alcoholic beverages sought an injunction against

state officials preventing the enforcement of a newly enacted

statute that forbade the suppliers to cancel distribution

agreements without good cause. 212 F.3d at 996. In bringing

the suit against the state officials, these suppliers also had

named their previous distributors as defendants. The court

entered a preliminary injunction against the state officials,

14 No. 18-1050

enjoining them from enforcing the statute. Id. The state offi-

cials did not take an appeal, but the distributor-defendants

did. Id. We held that the distributors did not have standing

to appeal because the district court’s injunction ran against

only the state officials. Id. at 997–98. As long as those officials

acquiesced in the imposition of the injunction, the distribu-

tors could obtain no relief. Id. at 998. Their injury was deriva-

tive; they were harmed only indirectly by the inability of the

state officials to issue orders that would protect the distribu-

tors’ interests. Id.

Our later cases have confirmed the continued vitality of

this rule. In Cabral v. City of Evansville, 759 F.3d 639 (7th Cir.

2014), residents of the City of Evansville brought an action

against the City challenging the City’s approval of a

two-week display of numerous six-foot crosses along public

riverfront property. Id. at 641. The district court entered a

permanent injunction; it barred the City from granting a

permit for the erection of the display. Id. The applicant, the

West Side Christian Church, was an intervenor in the district

court but was not subject to the injunction. Id. The City did

not appeal the district court’s decision to enter a permanent

injunction, but the Church did. Id. We dismissed the appeal

because the Church did not have standing. Id. We empha-

sized that only the City, not the Church, was subject to the

injunction. Id. at 642. If we vacated the injunction at the

Church’s request, it would not alter whether the Church was

permitted to erect the crosses. Id. It would simply allow the

City, a stranger to the appeal, to determine whether to per-

mit the crosses. Id. Any injury that the Church would suffer,

we concluded, was “derivative” of the City’s injury. Id.

No. 18-1050 15

We then went on to express our holding another way.

We said that it was a basic rule of appellate procedure that

“a judgment will not be altered on appeal in favor of a party

who did not appeal [even if] the interests of the party not

appealing are aligned with those of the appellant.” Id. at 643

(quoting Albedyll v. Wis. Porcelain Co. Revised Ret. Plan, 947

F.2d 246, 252 (7th Cir. 1991)). Relying on Kendall-Jackson, we

wrote that “[t]he critical question is this: when a district

judge enters an order creating obligations only for Defend-

ant A, may the court of appeals alter the judgment on appeal

by Defendant B when obligations imposed on A indirectly

affect B?” Id. (quoting Kendall-Jackson, 212 F.3d at 998) (em-

phasis added).

Our more recent decision in 1000 Friends of Wisconsin

presented a similar situation. Wisconsin, desirous of widen-

ing a road between Fond du Lac and Sheboygan, sought the

release of federal funds for the project. 860 F.3d at 481. The

United States Department of Transportation released an en-

vironmental impact statement evaluating the potential ef-

fects of the project and then issued a “record of decision

permitting the use of federal funds.” Id. At that point, a

group opposed to the project brought suit, asking the district

court to determine that the impact statement was inadequate

and to enjoin the project. Id. The district court declined to

enjoin the project but did set aside the “record of decision.”

Id. The United States Department of Transportation then is-

sued a revised impact statement, but the district court con-

tinued to deem it inadequate. Id. Only the Wisconsin De-

partment of Transportation and one of its employees ap-

pealed the district court’s decision; the United States De-

partment of Transportation did not. Id. We held that the

Wisconsin authorities did not have standing to appeal. Id. at

16 No. 18-1050

483. We stressed that, under the statute governing environ-

mental impact statements, state authorities had no duties. Id.

at 482. They remained free to undertake the project with

state funds. Id. Only the federal authorities were subject to

the court’s order disapproving of the environmental impact

statement, and the State could not substitute itself for the

federal agency that had responsibility for the statement. Id.

Any harm to Wisconsin was indirect; it could not obtain fed-

eral funds, but it remained free to proceed on its own.

In Mr. Lopez-Aguilar’s view, our holdings in these cases

are dispositive. Although his argument has superficial ap-

peal, on reflection, we cannot accept it. Here, we are not

dealing with the derivative injury of a private party whose

interests are dependent on the enjoined party. Rather, the

district court has enjoined a subordinate component of state

government from acting in accordance with the directive of

the state legislature. Indiana alleges a direct injury to its ca-

pacity to require subordinate entities of state government to

act in accordance with state law. In its sovereign capacity,

the State seeks to vindicate its authority to require officials of

subordinate units of government to fulfill their responsibili-

ties. The State maintains that the Stipulated Judgment direct-

ly frustrates its prerogatives and confounds its efforts to be

supportive of federal policy. Indiana contends, in essence,

that the subordinate officers of state government have abdi-

cated their responsibilities by agreeing to the district court’s

injunction. The State seeks to protect its sovereign preroga-

tive to cooperate with the federal government and to require

subordinate entities of state government to comply with that

legislative policy directive.

No. 18-1050 17

Mr. Lopez-Aguilar reminds us that the defendants have

no statutory duty to appeal the district court’s judgment.

Those officials do have a statutory duty, however, to obey

state law. Indiana simply asks that we vacate a federal dis-

trict court order requiring local law enforcement officers in

Marion County to act in perpetuity contrary to state law.

Such relief will remedy directly the injury to the State’s sov-

ereign interest in implementing a state-wide legislative poli-

cy of full cooperation with federal immigration law. Because

the State established a cognizable injury-in-fact, see Taylor,

477 U.S. at 137 (recognizing that “a State clearly has a legiti-

mate interest in the continued enforceability of its own stat-

utes”), and because we can directly redress that injury by

vacating the Stipulated Judgment, we conclude that the State

has standing to bring this appeal.

B.

1.

Having presented a justiciable case or controversy, Indi-

ana still must comply with the requirements of Rule 24. A

prerequisite for both intervention of right and permissive

intervention is that the motion to intervene must be timely.

Fed. R. Civ. P. 24(a), (b). Mr. Lopez-Aguilar submits that the

district court correctly held that, even if the State had stand-

ing to appeal, its motion to intervene was not timely.

As detailed above, Mr. Lopez-Aguilar and the defend-

ants jointly filed the Stipulated Judgment with the district

court on July 10, 2017. Three days later, on July 13, 2017, the

United States filed a request for time to submit a Statement

of Interest, which the district court granted. On August 4,

2017, the United States filed its Statement of Interest oppos-

18 No. 18-1050

ing entry of the Stipulated Judgment. The district court nev-

ertheless approved and entered the Stipulated Judgment on

November 7, 2017. According to the State of Indiana, follow-

ing entry of the Stipulated Judgment, “an attorney at the

United States Department of Justice informally advised the

Office of the Indiana Attorney General that the State may

16

have interests at stake in the case.” Consequently, on De-

cember 4, 2017, the State moved to intervene in order to ap-

peal the district court’s order entering the Stipulated Judg-

ment. On the same date, the State requested, and the district

court granted, a thirty-day extension of time to file a notice

of appeal.

In its order granting the extension of time, the district

court explained that, “[e]ven with the exercise of due dili-

gence, the State would not necessarily have had earlier no-

17

tice of this lawsuit and our entry of final judgment.” The

court further observed that:

[P]ublished news items and broadcast media

coverage included discussions of this lawsuit

both before and after final judgment was en-

tered. It is not far-fetched to presume that State

government officials would take the appropri-

ate steps to keep abreast of legal proceedings

touching on major questions of public policy

involving its capital city’s government. That

said, we know of no legal duty imposed on the

16 Appellant’s Br. 14.

17 R.58 at 3.

No. 18-1050 19

State to track every lawsuit implicating an in-

terpretation of Indiana law—the primary basis

for the State’s intervention motion—and we

have no reason to believe that the State had ac-

tual notice of this lawsuit before its filing of the

18

motions now before us.

The district court concluded that it was appropriate to

grant the State’s motion for extension of time to appeal given

that “[t]he State was not involved in, and did not necessarily

have cause to know of, the course of litigation in this case

before filing its intervention and extension motions, and ap-

pear[ed] to have sought to protect its interests as soon as was

19

practicable upon learning of the Stipulated Judgment.” De-

spite these findings, on January 5, 2018, the district court de-

nied the State’s motion to intervene. Among other grounds,

the court determined that the State’s motion failed for lack of

timeliness.

We have stated, in the context of Rule 24, that

“[t]imeliness is not limited to chronological considerations

but is to be determined from all the circumstances.” City of

Bloomington v. Westinghouse Elec. Corp., 824 F.2d 531, 534 (7th

Cir. 1987) (internal quotation marks omitted). We consider

four factors to determine whether a motion to intervene is

timely: “(1) the length of time the intervenor knew or should

have known of his interest in the case; (2) the prejudice

caused to the original parties by the delay; (3) the prejudice

18 Id. at 3–4.

19 Id. at 4 (emphasis omitted).

20 No. 18-1050

to the intervenor if the motion is denied; [and] (4) any other

unusual circumstances.” Sokaogon Chippewa Cmty. v. Babbitt,

214 F.3d 941, 949 (7th Cir. 2000). “The test for timeliness is

essentially one of reasonableness: ‘potential intervenors need

to be reasonably diligent in learning of a suit that might af-

fect their rights, and upon so learning they need to act rea-

sonably promptly.’” Reich v. ABC/York-Estes Corp., 64 F.3d

316, 321 (7th Cir. 1995) (quoting Nissei Sangyo America, Ltd. v.

United States, 31 F.3d 435, 438 (7th Cir. 1994)). We further

note that, when intervention of right is sought, because “the

would-be intervenor may be seriously harmed if interven-

tion is denied, courts should be reluctant to dismiss such a

request for intervention as untimely, even though they

might deny the request if the intervention were merely per-

missive.” 7C Charles Alan Wright et al., Federal Practice &

Procedure: Civil § 1916 (3d ed. 2018). “We review the district

court’s decision on timeliness for an abuse of discretion.”

Reich, 64 F.3d at 321.

The first factor that we consider is the length of time the

State knew or should have known of its interest in this case.

“[W]e do not necessarily put potential intervenors on the

clock at the moment the suit is filed or even at the time they

learn of its existence. Rather, we determine timeliness from

the time the potential intervenors learn that their interest

might be impaired.” Id. Indiana contends that its motion was

timely because it moved to intervene as soon as it became

aware of the Stipulated Judgment, less than a month after

the entry of judgment and within the time to file an appeal.

It maintains that it was unaware of this case or the Stipulat-

ed Judgment until after the district court entered final judg-

ment.

No. 18-1050 21

In considering this first factor, we, like our sister circuits,

give significant weight to the fact that the motion to inter-

vene was filed within the time limit for filing a notice of ap-

peal. 20 Additionally, although the district court ultimately

ruled that the motion to intervene was not timely, the court’s

earlier statements reflected another view. In finally denying

the motion to intervene, the court remarked that the State

should have known that it had an interest in the litigation

five months earlier, when the parties proposed the Stipulat-

ed Judgment. The court also asserted that the State should

have known of its interest in this case when, as early as July

12, 2017, Indiana media outlets published stories about this

litigation and the parties’ proposed agreement. By contrast,

in granting the State’s motion for extension of time to ap-

peal, the court noted that “[e]ven with the exercise of due

diligence, the State would not necessarily have had earlier

notice of this lawsuit and [the district court’s] entry of final

21

judgment.” Indeed, the district court acknowledged, cor-

rectly, that “we know of no legal duty imposed on the State

to track every lawsuit implicating an interpretation of Indi-

ana law … and we have no reason to believe that the State

had actual notice of this lawsuit” before filing its motion to

22

intervene. We think the latter remarks of the district court

reflect a more accurate and realistic view of the entire record.

The district court was correct in determining that the State

20See, e.g., Ross v. Marshall, 426 F.3d 745, 755 (5th Cir. 2005); Triax Co. v.

TRW, Inc., 724 F.2d 1224, 1229 (6th Cir. 1984).

21 R.58 at 3.

22 Id. at 4.

22 No. 18-1050

cannot be faulted for not learning of this suit sooner. The

State received no notification of the initiation of this litiga-

tion, and the Attorney General of Indiana had no obligation

to monitor the local news services to determine from their

reports whether the State had a sufficient interest to justify

entering the litigation. 23

Of course, the “most important consideration in deciding

whether a motion for intervention is untimely is whether the

delay in moving for intervention will prejudice the existing

parties to the case.” Nissei Sangyo America, Ltd. v. United

States, 31 F.3d 435, 439 (7th Cir. 1994) (quoting 7C Charles

Alan Wright et al., Federal Practice & Procedure: Civil § 1916

(2d ed. 1986)). Where a stipulated judgment is involved, in-

tervention can prejudice the original parties because the

judgment cannot be approved without the intervenor’s

agreement and because the implementation of its terms will

“necessarily be delayed.” City of Bloomington, 824 F.2d at 536.

The district court determined that the prejudice to the

original parties would be “real and appreciable” because the

personal-capacity defendants had been dismissed with prej-

udice and their repose would be disturbed. 24 The offi-

23 Cf. Atl. Mut. Ins. Co. v. Nw. Airlines, Inc., 24 F.3d 958, 961 (7th Cir. 1994)

(noting that, “[u]ntil the district judge issued his opinion,” the intervenor

“could not have known that this otherwise-mundane case included an

issue affecting international relations”); Peruta v. Cty. of San Diego, 824

F.3d 919, 940 (9th Cir. 2016) (en banc) (granting the State of California’s

motion to intervene after a panel of the Ninth Circuit had issued its deci-

sion because the State “had no strong incentive to seek intervention … at

an earlier stage, for it had little reason to anticipate … the breadth of the

panel’s holding”).

24 R.62 at 14.

No. 18-1050 23

cial-capacity defendants had obtained the district court’s de-

termination of their obligations, and Mr. Lopez-Aguilar’s

vindication of his position would be “wholly overthrown”

25

by reopening the litigation.

As a practical matter, however, none of these suggested

difficulties can be said to be a result of the State’s “delay” in

moving to intervene. Even if the State moved to intervene in

July 2017, after the parties proposed the Stipulated Judg-

ment, rather than in December 2017, after the State learned

that the district court had entered final judgment, the burden

to the parties of reopening the litigation and resuming set-

tlement negotiations would have been the same. Cf. Nissei

Sangyo America, 31 F.3d at 439 (concluding that the interve-

nor’s “delay” did not cause the type of prejudice advanced

by the plaintiff, since the plaintiff “would have been bur-

dened in precisely the same manner had [the movant’s] mo-

tion to intervene been filed in July rather than October”).

Any prejudice to Mr. Lopez-Aguilar and the defendants is

not “so great as to justify denying” the State’s motion to in-

tervene. Reich, 64 F.3d at 322.

We also must consider “the prejudice to the intervenor if

the motion is denied.” Sokaogon Chippewa Cmty., 214 F.3d at

949. For example, we determined in Reich that the prejudice

to a group of exotic dancers who wished to intervene in a

Fair Labor Standards Act suit brought against their employ-

er by the Secretary of Labor was significant and outweighed

any prejudice to the existing parties. Reich, 64 F.3d at 322.

Absent intervention, the dancers would have been denied

25 Id.

24 No. 18-1050

“their one and only opportunity to define their employment

status” with the defendant. Id.

Here, the district court took the view that the prejudice to

the State “would be minimal or nonexistent” because its or-

der “binds only the original parties to this action” and be-

cause the State “has numerous courts, state and federal, and

numerous potential cases, open to it for the vindication of its

26

preferred legal position.” We cannot accept this view. The

district court’s entry of a permanent injunction hobbles, sub-

stantially, Indiana’s ability to implement its legislative policy

in its most populous county. Nor is this a case where the

State previously had the opportunity, but elected not, to

provide its input on the terms of the Stipulated Judgment.

Cf. City of Bloomington, 824 F.2d at 537 (noting that the pro-

posed intervenor had “submitted its comments to the Justice

Department, and its views were presumably considered by

the district court prior to the final entry of the consent de-

cree,” such that “it would suffer little prejudice if it were de-

nied permission to intervene”). Rather, the district court ap-

proved and entered the Stipulated Judgment without any

adversarial briefing on the enforceability of the relevant In-

diana code provisions, let alone any input from the State.

The prejudice to the State from being denied the opportunity

to explain portions of its legal code is “significant” and

“outweighs any prejudice” to the existing parties. Reich, 64

F.3d at 322.

A state’s right to participate in federal litigation implicat-

ing its interests as a sovereign is a serious matter. Cf. 28

26 Id. at 15.

No. 18-1050 25

U.S.C. § 2403(b) (requiring a district court to notify a state’s

attorney general and permit the state to intervene whenever

the constitutionality of a state statute is at stake); Fed. R. Civ.

P. 5.1 (permitting the state attorney general to intervene

when a party files a paper “drawing into question the consti-

tutionality” of a state statute). 27 Moreover, the impairment of

a substantive state legislative policy that directly implicates

federal-state cooperation is surely a matter requiring great

sensitivity on the part of the federal courts. If the State can-

not intervene, then the district court’s judgment will stand

without adversarial briefing on the question of the enforcea-

bility of the Indiana code provisions designed to promote

such cooperation.

In sum, because the State filed its motion to intervene

within the time for filing an appeal, because the State cannot

be faulted for not having intervened earlier, and because the

prejudice to the State from being denied intervenor status

outweighs any prejudice to the parties from allowing inter-

28

vention, its motion to intervene was timely. The district

27 Indiana does not argue that 28 U.S.C. § 2403(b) is directly applicable in

this case, nor is the operation of that statute clear where federal preemp-

tion of state law is the operative issue. For those reasons, we will preter-

mit any reliance upon it.

28The fourth factor we may consider is whether there are “any other un-

usual circumstances” bearing on the timeliness inquiry. Sokaogon Chip-

pewa Cmty. v. Babbitt, 214 F.3d 941, 949 (7th Cir. 2000). The district court

ruled that “the State has pointed us to no such circumstances, and we

perceive none.” R.62 at 15. In its brief on appeal, the State has raised no

argument regarding any unusual circumstances. Cf. Appellant’s Br. 23–

27. Therefore, our analysis does not include this factor.

26 No. 18-1050

court exceeded the bounds of permissible discretion in

reaching a contrary conclusion.

2.

We now turn to examine whether the State satisfied the

remaining conditions for seeking intervention. A non-party

who wishes to intervene as of right must satisfy three re-

quirements under Rule 24(a):

(1) [T]he applicant must claim an interest relat-

ing to the property or transaction which is the

subject of the action,

(2) the applicant must be so situated that the

disposition of the action may as a practical

matter impair or impede the applicant’s ability

to protect that interest, and

(3) existing parties must not be adequate repre-

sentatives of the applicant’s interest.

Sokaogon Chippewa Cmty., 214 F.3d at 945–46.

We first consider whether Indiana has a legally protecta-

ble interest in this litigation. “Our cases say that the prospec-

tive intervenor’s interest must be direct, significant, and le-

gally protectable.” Solid Waste Agency of N. Cook Cty. v. Unit-

ed States Army Corps of Eng’rs, 101 F.3d 503, 506 (7th Cir.

1996). The Rule does not define “interest,” but “the case law

makes clear that more than the minimum Article III interest

is required.” Flying J, Inc. v. Van Hollen, 578 F.3d 569, 571 (7th

Cir. 2009). At the same time, we have interpreted “state-

ments of the Supreme Court as encouraging liberality in the

definition of an interest.” Meridian Homes Corp. v. Nicholas W.

Prassas & Co., 683 F.2d 201, 204 (7th Cir. 1982). In general,

“[w]hether an applicant has an interest sufficient to warrant

No. 18-1050 27

intervention as a matter of right is a highly fact-specific de-

termination, making comparison to other cases of limited

value.” Sec. Ins. Co. of Hartford v. Schipporeit, Inc., 69 F.3d

1377, 1381 (7th Cir. 1995).

In this case, the State has a fundamental interest in the

maintenance of its legislatively mandated policy to cooper-

ate fully with the federal government in the enforcement of

immigration laws. It is certainly within the State’s exclusive

purview to establish its expectations of the law enforcement

officers operating under its statutes. Indiana has an interest

in giving effect to its legislature’s determination that the

State ought to cooperate fully with federal immigration en-

forcement. Because the State has a substantial interest in

overturning a federal injunction that limits its ability to ef-

fectuate its legislature’s expectations, it has a “direct, signifi-

cant, and legally protectable” interest in this litigation. Solid

Waste Agency, 101 F.3d at 506. 29

29 The Supreme Court’s decision in Arizona v. United States, 567 U.S. 387

(2012), does not diminish the State’s asserted interest in this litigation. In

Arizona, the Court held that the Immigration and Nationality Act

(“INA”) preempted an Arizona statute authorizing state officers, acting

without a warrant, to detain any person if the officer had probable cause

to believe that person committed an offense that made him removable

from the United States. Id. at 410. The Court observed that federal law

“instructs when it is appropriate to arrest an alien during the removal

process.” Id. at 407. By “attempt[ing] to provide state officers even great-

er authority to arrest aliens on the basis of possible removability than

Congress ha[d] given to trained federal immigration officers,” the Arizo-

na statute conflicted with the federal scheme. Id. at 408. In defense of the

statute, Arizona referenced 8 U.S.C. § 1357(g)(10)(B), which authorizes

state officers to “cooperate with the Attorney General in the identifica-

tion, apprehension, detention, or removal of aliens not lawfully present

(continued … )

28 No. 18-1050

Next, we examine whether the Stipulated Judgment

“may as a practical matter impair or impede” the State’s

“ability to protect its interest.” Fed. R. Civ. P. 24(a)(2). We

have recognized that “concern with the stare decisis effect of

a decision can be a ground for intervention.” Flying J, 578

F.3d at 573. We also have observed that requiring a

would-be intervenor to assert his interest in a separate suit

can amount to an “impediment” justifying intervention as of

right. Id. In Flying J, for example, we held that the interest of

retailers who wished to limit price competition “would be

directly rather than remotely harmed by invalidation” of a

statute regulating unfair sales because the retailers “would

lose much or even all of their business to their larger, more

efficient competitors.” Id. at 572. Because the retailers sought

only “an opportunity to litigate an appeal,” we concluded

that requiring the retailers to “start over” by bringing a sepa-

( … continued)

in the United States.” But, according to the Court, “no coherent under-

standing” of the word “cooperation” would include “the unilateral deci-

sion of state officers to arrest an alien for being removable absent any

request, approval, or other instruction from the Federal Government.”

Arizona, 567 U.S. at 410. By contrast, the Indiana statutes at issue here

only require that state and local officers cooperate with federal immigra-

tion efforts. See Ind. Code § 5-2-18.2-3 (prohibiting a governmental body

from implementing a policy that “prohibits or in any way restricts” law

enforcement officers from taking covered actions “with regard to infor-

mation of the citizenship or immigration status” of a person, such as

“[c]ommunicating or cooperating with federal officials”); id. § 5-2-18.2-4

(prohibiting a governmental body from “limit[ing] or restrict[ing] the

enforcement of federal immigration laws to less than the full extent per-

mitted by federal law”). Indiana law does not contemplate the kind of

unilateral action by state officers that the Arizona Court determined vio-

lated federal law.

No. 18-1050 29

rate suit was an “impediment” that could be removed, with-

out prejudice to the parties, “by allowing intervention.” Id. at

573.

Here, the Stipulated Judgment will impair directly the

State’s ability to protect its substantial interest in cooperating

with federal immigration enforcement efforts. The terms of

the injunction oblige the Sheriff’s Department of Indiana’s

most populous county to disregard, in a significant way,

what the State believes is a legislative command to cooperate

with the federal government. Absent intervention, the State

will have no opportunity to assert its interest before the par-

ties are bound by the terms of the Stipulated Judgment. See

Solid Waste Agency, 101 F.3d at 507 (observing that “[t]he

strongest case for intervention” is “where the interve-

nor-aspirant has no claim against the defendant yet a legally

protected interest that could be impaired by the suit”).

Lastly, we examine whether the existing parties ade-

quately represent Indiana’s interest. We presume adequacy

of representation “[w]here the interests of the original party

and of the intervenor are identical—where in other words

there is no conflict of interest.” Id. at 508. Here, by contrast,

none of the original parties, who jointly requested entry of

the Stipulated Judgment and did not seek an appeal, share

the State’s interest in defending the enforceability of the con-

tested state statutes. Neither Mr. Lopez-Aguilar nor the de-

fendants contend that any existing party adequately repre-

sents any interest the State may have in this case.

Because the State has demonstrated a direct, significant,

and legally protectable interest in this litigation, which will

be impaired absent intervention and is not adequately repre-

sented by the existing parties, the State is entitled to inter-

30 No. 18-1050

vention as of right. The district court therefore erred when it

denied the State’s motion. 30

C.

Having determined that the district court should have

permitted Indiana to intervene for purposes of taking an ap-

peal, we turn now to consider the State’s position. In Indi-

ana’s view, “[t]he district court lacked Article III jurisdiction

to declare unlawful and permanently enjoin Marion Coun-

31

ty’s detention of removable aliens.” More specifically, In-

diana submits that, because Mr. Lopez-Aguilar alleged only

a single past incident of unlawful conduct—his detention in

September 2014, at an ICE officer’s request—his claim of

past injury does not constitute in itself the real and immedi-

ate threat of injury necessary to make out a case or contro-

versy.

We evaluate this contention by focusing on the Supreme

Court’s decision in Lyons. In that case, Lyons sued the City

of Los Angeles and four of its police officers, alleging that

the officers had stopped him for a traffic violation and,

without provocation or legal justification, seized him and

applied a “chokehold.” 461 U.S. at 97. He sought damages, a

declaratory judgment, and an injunction against the City

barring the use of chokeholds. Id. at 98. The Supreme Court

reversed the district court’s entry of a preliminary injunc-

30Because Indiana clearly satisfies the criteria for intervention as of right

under Rule 24(a), we need not examine in-depth whether it fulfills the

requirements for permissive intervention under Rule 24(b).

31 Appellant’s Br. 33.

No. 18-1050 31

tion. It held that “the federal courts [were] without jurisdic-

tion to entertain Lyons’ claim for injunctive relief.” Id. at 101.

The Court began its analysis with the premise that “those

who seek to invoke the jurisdiction of the federal courts

must satisfy the threshold requirement imposed by Art. III

of the Constitution by alleging an actual case or controver-

sy.” Id. Specifically, “[t]he plaintiff must show that he has

sustained or is immediately in danger of sustaining some

direct injury as the result of the challenged official conduct.”

Id. at 101–02 (internal quotation marks omitted). That “injury

or threat of injury must be both real and immediate, not con-

jectural or hypothetical.” Id. at 102 (internal quotation marks

omitted). It followed that “Lyons’ standing to seek the in-

junction requested depended on whether he was likely to

suffer future injury from the use of the chokeholds by police

officers.” Id. at 105.

Relying on its decisions in O’Shea v. Littleton, 414 U.S. 488

(1974), and Rizzo v. Goode, 423 U.S. 362 (1976), the Court con-

cluded that Lyons “failed to demonstrate a case or contro-

versy with the City that would justify the equitable relief

sought.” Id. In O’Shea, the Court had held that the plaintiffs’

complaint that they had been subject to discriminatory en-

forcement of the criminal law “failed to satisfy the threshold

requirement imposed by Art. III of the Constitution that

those who seek to invoke the power of federal courts must

allege an actual case or controversy.” 414 U.S. at 493. The

Court reasoned that, although some of the named plaintiffs

had actually “suffered from the alleged unconstitutional

practices,” “[p]ast exposure to illegal conduct does not in it-

self show a present case or controversy regarding injunctive

relief[] … if unaccompanied by any continuing, present ad-

32 No. 18-1050

verse effects.” Id. at 495–96. Further, even if the Court were

to conclude that the complaint presented a case or contro-

versy, the plaintiff class had failed “to establish the basic

requisites of the issuance of equitable relief in these circum-

stances—the likelihood of substantial and immediate irrepa-

rable injury, and the inadequacy of remedies at law.” Id. at

502.

Similarly, in Rizzo, the plaintiffs sought equitable inter-

vention to remedy police officer mistreatment of minority

citizens and Philadelphia residents. 423 U.S. at 366–67. Be-

cause the plaintiffs’ alleged injury rested on “what one of a

small, unnamed minority of policemen might do to them in

the future,” the Court concluded that “[t]his hypothesis

[was] even more attenuated than those allegations of future

injury found insufficient in O’Shea to warrant invocation of

federal jurisdiction.” Id. at 372.

Adhering to these principles, the Court in Lyons conclud-

ed that the plaintiff’s complaint fell “far short of the allega-

tions that would be necessary to establish a case or contro-

versy.” Lyons, 461 U.S. at 105. Although Lyons may have

been illegally choked by the police on October 6, 1976, the

Court observed that this single past incident did “nothing to

establish a real and immediate threat that he would again be

stopped for a traffic violation, or for any other offense, by an

officer or officers who would illegally choke him into uncon-

sciousness without any provocation or resistance on his

part.” Id. Given the “speculative nature” of his “claim of fu-

ture injury,” Lyons had failed to demonstrate a “likelihood

of substantial and immediate irreparable injury,” which is a

“prerequisite of equitable relief.” Id. at 111 (quoting O’Shea,

414 U.S. at 502). “Absent a sufficient likelihood that he

No. 18-1050 33

[would] again be wronged in a similar way,” the Court ex-

plained, Lyons was “no more entitled to an injunction than

any other citizen of Los Angeles.” Id. Finally, the Court

stressed that “the need for a proper balance between state

and federal authority counsels restraint in the issuance of

injunctions against state officers engaged in the administra-

tion of the States’ criminal laws” absent “irreparable injury

which is both great and immediate.” Id. at 112 (citing O’Shea,

414 U.S. at 499). Accordingly, Lyons lacked standing to seek

the injunction requested.

Lyons establishes that a plaintiff cannot seek an injunction

“absent a showing of irreparable injury, a requirement that

cannot be met where there is no showing of any real or im-

mediate threat that the plaintiff will be wronged again.” Id.

at 111. We consistently have understood Lyons to foreclose

claims for equitable relief based on lack of standing where

“the possibility” that the plaintiff “would suffer any injury

as a result of” the challenged practice was “too speculative.”

Robinson v. City of Chi., 868 F.2d 959, 966 (7th Cir. 1989) (af-

firming that there was “no reasonable likelihood” that plain-

tiff’s claims would recur because he had “not alleged and

ha[d] not shown that he [was] in immediate danger of again

being directly injured” by a “post-arrest detention for inves-

tigation prior to a probable cause hearing”); see also Campbell

v. Miller, 373 F.3d 834, 836 (7th Cir. 2004) (concluding that,

after Indianapolis police officers arrested plaintiff for pos-

sessing marijuana and conducted a body-cavity search for

drugs before releasing him, the district court could not en-

join this practice because, “[u]nless the same events [were]

likely to happen again to him there [was] no controversy be-

tween him and the City about the City’s future handling of

other arrests” (emphasis in original)); Perry v. Sheahan, 222

34 No. 18-1050

F.3d 309, 313 (7th Cir. 2000) (affirming plaintiff’s lack of

standing to seek injunction of county policy of seizing fire-

arms during an eviction because Perry could not “demon-

strate a realistic threat that he would be the subject of anoth-

er forcible eviction in Cook County that would result in the

seizure of his property”); Knox v. McGinnis, 998 F.2d 1405,

1413 (7th Cir. 1993) (denying Knox’s claim for injunctive re-

lief because “the mere possibility that Knox may sometime

in the future be returned to the [prison] segregation unit

[did] not establish a real and immediate case or controver-

sy”).

We recently applied Lyons in Simic v. City of Chicago, 851

F.3d 734 (7th Cir. 2017). In that case, a police officer issued

Simic a ticket for violating Chicago’s ordinance against tex-

ting while driving. Id. at 736. When the plaintiff failed to pay

the ticket, the City took steps to collect a fine. Id. Simic then

sued the City, claiming that the ordinance was unconstitu-

tional and seeking to enjoin its enforcement. Id. at 736–37.

On appeal, we determined that Simic did not have standing

to seek injunctive relief. “Unlike with damages,” we ex-

plained, “a past injury alone is insufficient to establish stand-

ing for purposes of prospective injunctive relief.” Id. at 738.

We determined that “Simic’s claimed threat of future in-

jury” was “conjectural” because it was entirely “contingent

upon her once again driving while using her cell phone and

receiving a citation under the Chicago ordinance.” Id. “For

purposes of standing to seek injunctive relief against future

harm,” we added, “courts generally assume that litigants

‘will conduct their activities within the law and so avoid

prosecution and conviction.’” Id. (quoting O'Shea, 414 U.S. at

497). Because Simic did “not have concrete plans to violate

No. 18-1050 35

Illinois law by using her cell phone while driving in Chica-

go,” she lacked standing to seek injunctive relief. Id.

Applying Lyons to the case at hand, Mr. Lopez-Aguilar

has failed to establish a case or controversy with the defend-

ants “that would justify the equitable relief sought.” Lyons,

461 U.S. at 105. Mr. Lopez-Aguilar’s complaint identified as

the source of his injury a single, isolated incident, on Sep-

tember 18, 2014, when a Marion County officer, at the re-

quest of an ICE officer, arrested and held him without prob-

able cause. He did not allege any subsequent contact with

the Sheriff’s Department or the individual defendants, let

alone any subsequent detentions in Marion County. That

Mr. Lopez-Aguilar does not reside in Marion County makes

a subsequent encounter with the Sheriff’s Department and

detention at the request of ICE all the more speculative.

Therefore, “the odds” that Mr. Lopez-Aguilar will return to

Marion County, again commit a traffic violation or other in-

fraction resulting in an encounter with the Sheriff’s Depart-

ment, and again be detained at ICE’s request are not “suffi-

cient to make out a federal case for equitable relief.” Lyons,

461 U.S. at 108 (internal quotation marks omitted). Absent

“continuing, present adverse effects,” Mr. Lopez-Aguilar’s

“[p]ast exposure to illegal conduct” by the defendants does

not amount to a “present case or controversy” for equitable

relief. O’Shea, 414 U.S. at 495–96.

Mr. Lopez-Aguilar simply fails to demonstrate a “likeli-

hood of substantial and immediate irreparable injury,” a

prerequisite for equitable relief. Lyons, 461 U.S. at 111 (quot-

ing O’Shea, 414 U.S. at 502). Without a “showing of any real

or immediate threat that the plaintiff will be wronged

again,” id., Mr. Lopez-Aguilar lacked standing to request,

36 No. 18-1050

and the district court lacked jurisdiction to award, the de-

claratory judgment and permanent injunction set forth in the

Stipulated Judgment.

Mr. Lopez-Aguilar is notably reticent about countering

forthrightly the State’s argument that, under Lyons, he

lacked standing to seek (and the district court lacked juris-

diction to award) injunctive relief. Instead, he maintains that

the State ignores the line of cases holding that parties can

agree through consent decrees to more relief than a court

could have ordered absent settlement and more than the

32

Constitution itself requires. This argument over-reads sig-

nificantly the governing case law. The requirement that the

plaintiff must have standing to seek equitable relief does not

cease when the parties agree to such relief by stipulated

judgment. Although “[c]onsent decrees often embody out-

comes that reach beyond basic constitutional protections,” to

be “enforceable as a judicial decree,” a consent decree is

“subject to the rules generally applicable to other judgments

and decrees.” Kindred v. Duckworth, 9 F.3d 638, 641 (7th Cir.

1993). The district court cannot “suspend the application of

Article III” and the parties cannot “stipulate to the enlarge-

ment of federal jurisdiction” by means of a consent decree.

32 One of the cases on which Mr. Lopez-Aguilar relies is Local No. 93, In-

ternational Association of Firefighters v. City of Cleveland, 478 U.S. 501, 522

(1986). Although the Court in Local No. 93 concluded that parties may

agree to, and courts may enter, a consent decree that includes terms be-

yond the remedies provided in a specific statute, the Court never sug-

gested that a court may enter a consent decree that includes a remedy

beyond the court’s jurisdiction. Indeed, the Court noted that “a consent

decree must spring from and serve to resolve a dispute within the court’s

subject-matter jurisdiction.” Id. at 525.

No. 18-1050 37

United States v. ACCRA PAC, Inc., 173 F.3d 630, 633 (7th Cir.

1999). Even when the parties resolve the plaintiff’s claims by

agreement, therefore, the district court must consider

whether it has jurisdiction to award the relief requested.

For instance, in Blair v. Shanahan, 38 F.3d 1514 (9th Cir.

1994), the court determined that the plaintiff lacked standing

to seek a declaratory judgment that a California statute crim-

inalizing aggressive panhandling was unconstitutional. In

the district court, the City of San Francisco had made an of-

fer of judgment under which it would accept a declaratory

judgment in favor of the plaintiff. Id. at 1517. After the dis-

trict court approved the consent judgment, the City moved

to modify or vacate the judgment. The district court denied

that motion, and the City appealed. Id. at 1518. The Ninth

Circuit reversed, holding that the plaintiff lacked standing to

seek declaratory relief because “it [was] unlikely that he

[would] ever again desire to panhandle.” Id. at 1519. Relying

on Lyons, the court observed that, “in the context of Blair’s

request for declaratory or injunctive relief, ‘[p]ast exposure

to illegal conduct does not itself show a present case or con-

troversy … if unaccompanied by any continuing, present

adverse effects.’” Id. (quoting Lyons, 461 U.S. at 102). Thus,

“Blair’s lack of a personal stake in the declaratory judgment”

left the court “without jurisdiction to review the district

court’s order” declaring the statute unconstitutional. Id. at

33

1520.

33 Similarly, in Ducharme v. Rhode Island, No. 93-1675, 1994 WL 390144

(1st Cir. July 15, 1994) (unpublished), the court concluded that “Du-

charme’s claims for equitable relief [did] not fall within the subject mat-

ter jurisdiction of the federal courts.” Id. at *3. The Rhode Island State

(continued … )

38 No. 18-1050

The parties’ agreement to resolve Mr. Lopez-Aguilar’s

claims by stipulated judgment did not relieve the district

court of its obligation to confirm that it had Article III juris-

diction to enter the declaratory judgment and permanent in-

junction. Lyons operates with the same force and effect in

this context and compels the conclusion that

Mr. Lopez-Aguilar did not have standing to request equita-

ble relief. The Supreme Court has admonished that, absent

“great and immediate” irreparable injury, “the need for a

proper balance between state and federal authority counsels

restraint in the issuance of injunctions against state officers

( … continued)

Police had arrested Ducharme for disorderly conduct, taken him to a

police building, and strip searched him before placing him in a holding

cell. Id. at *1. Ducharme brought a claim under 42 U.S.C. § 1983 against

the State Police and the police officer who searched him, alleging that the

strip search violated his rights under the Fourth and Fourteenth

Amendments. Id. The parties negotiated a consent judgment, by which

the defendants agreed to pay Ducharme damages and to refrain from

performing strip searches of arrestees charged with misdemeanors or

motor vehicle offenses. Id. at *2. The district court denied Ducharme’s

motion for entry of the consent judgment, and the First Circuit affirmed.

Acknowledging that “Ducharme clearly ha[d] standing to bring an ac-

tion for damages against the defendants based on the … strip search,”

the court held that “[i]t [was] equally obvious that Ducharme ha[d] no

standing to request equitable relief.” Id. at *3. The court “simply” could

not “assume that Ducharme [would] violate the law in the future in a

manner that would lead the State Police to arrest him and place him in a

holding cell.” Id. Accordingly, “[i]n the absence of a case or controversy

with respect to Ducharme’s claim for equitable relief, Lyons teaches that

neither we nor the district court have jurisdiction to consider the merits

of an equitable decree.” Id. The court perceived no “reason why the out-

come of the jurisdictional inquiry should turn on whether the decree is

the product of a pre-trial consent judgment or a post-trial order.” Id.

No. 18-1050 39

engaged in the administration of the States’ criminal laws.”

Lyons, 461 U.S. at 112; see also O’Shea, 414 U.S. at 499. There-

fore, the district court erred when it entered the Stipulated

Judgment without regard to Mr. Lopez-Aguilar’s standing to

34

seek equitable relief.

34 Mr. Lopez-Aguilar relies on O’Sullivan v. City of Chicago, 396 F.3d 843

(7th Cir. 2005), for the proposition that, although “Article III standing

might not have supported injunctive relief (or any relief) at the time the

decree was entered,” that “did not cast doubt on the district court’s abil-

ity to enter the decree when the case was properly within its sub-

ject-matter jurisdiction.” Lopez-Aguilar Br. 47. O’Sullivan, however, ad-

dressed a different, and unique, situation. In O’Sullivan, the original con-

sent decree was entered in 1972 and modified twice after that date.

O’Sullivan, 396 F.3d at 848, 851. Approximately fifteen years after the last

modification of the consent decree, the plaintiffs brought an enforcement

action. Id. at 851. In response, the defendants maintained that the plain-

tiffs lacked standing to enforce the decree. Id. After reviewing the convo-

luted history of the litigation, the court made a few notable observations.

First, “[a]fter a case has become final by exhaustion of all appellate rem-

edies, only an egregious want of jurisdiction will allow the judgment to

be undone by someone who, having participated in the case, cannot

complain that his rights were infringed without his knowledge.” Id. at

859 (quoting In re Factor VIII, 159 F.3d 1016, 1019 (7th Cir. 1998)). We de-

termined that there was not “an egregious want of jurisdiction” when

the district court originally entered the consent decree. Id. at 866. Rather,

there had been significant changes in the Supreme Court’s approach to

subject-matter jurisdiction since entry of the decree. Id. at 866–67. Fur-

ther, we observed that when enforcing a consent decree that included

“an injunction restricting the ability of a State or local government to

meet its responsibilities,” “there is a need to ensure that changes in fac-

tual or legal circumstances do not transform a once-just result into one

that is unjust, illegal or overly burdensome and do not unnecessarily

hinder a State in providing for the welfare of its citizenry.” Id. at 865.

Given these circumstances, the proper action of the governmental de-

(continued … )

40 No. 18-1050

Conclusion

For the foregoing reasons, we reverse the judgment of the

district court and remand for proceedings consistent with

this opinion. Indiana may recover its costs in this court.

REVERSED AND REMANDED

( … continued)

fendant is not to ignore or defy the decree, but to seek a modification of

the decree based on the change in law. Id. at 868. We therefore remanded

the case to the district court, inviting the governmental defendants to

seek a modification of the decree under Rule 60(b). Id.

The differences between our situation and the one in O’Sullivan are

stark. There is no suggestion that, because of changes in the law, the dis-

trict court initially had jurisdiction to award injunctive relief when the

parties entered the Stipulated Judgment but has since lost such jurisdic-

tion. At no point in this litigation did Mr. Lopez-Aguilar have standing

to seek the prospective injunctive relief awarded by the district court.

Moreover, this case is before us on direct appeal; it has not “become final

by exhaustion of all appellate remedies.” Id. at 859. Nor is the State at-

tempting to undo a judgment after it has had the opportunity to partici-

pate in a case and have its rights fairly determined. Rather, the State

seeks in the first instance an opportunity to ensure that its laws can op-

erate within its most populous county in the manner contemplated by

the Indiana legislature.