# Illinois Migrant Council, Etc. v. Alva L. Pilliod, Etc.

> Court of Appeals for the Seventh Circuit · August 17, 1976 · 540 F.2d 1062

URL: https://www.frixlaw.com/law-library/cases/9463026

## Case

- **Full name:** ILLINOIS MIGRANT COUNCIL, Etc., Et Al., Plaintiffs-Appellees, v. Alva L. PILLIOD, Etc., Et Al., Defendants-Appellants
- **Court:** Court of Appeals for the Seventh Circuit
- **Decided:** August 17, 1976
- **Citations:** 540 F.2d 1062; 1976 U.S. App. LEXIS 7534
- **Precedential status:** Published
- **Opinion:** Dissent by Tone
- **Judges:** Fairchild, Cummings, Tone
- **Cited by:** 75 later opinions in the Frix Law Library

## Citator (automated)

- **Yellow flag:** Modified by Illinois Migrant Council, Etc. v. Alva L. Pilliod, Etc., 548 F.2d 715 (1977).
- Negative treatments: 1
- Distinguished by: 0
- Full citator and citing cases: https://www.frixlaw.com/law-library/cases/9463026

## How later opinions describe it (automated extraction)

- finding that monetary damages were insufficient to compensate the plaintiffs — a class of persons of Mexican ancestry — who had been subject to illegal stops and interrogations by the INS in violation of the Fourth Amendment
- holding that the plaintiffs had standing where they had “shown a specific pattern of conduct, akin to an explicit policy,” that “demonstrated a reasonable likelihood of future harm”

## Opinion text

TONE, Circuit Judge
(dissenting).
I am unable to join in the majority decision. There is, to begin with, a problem of standing under Rizzo v. Goode, 423 U.S. 362 , 96 S.Ct. 598, 604-605 , 46 L.Ed.2d 561 (1976). Cf. also O’Shea v. Littleton, 414 U.S. 488, 493-499 , 94 S.Ct. 669 , 38 L.Ed.2d 674 (1974), relied upon in Rizzo . These cases indicate that when the asserted basis for injunctive relief is unlawful law enforcement activities which have been directed at relatively few persons, and the possibility of repetition of those acts against those persons or any other particular individual is conjectural, the standing element of the requirement of a case or controversy is not met. Cf. also Calvin v. Conlisk (II), 534 F.2d 1251, 1252 (7th Cir. 1976). 1 The injunction in this ease was granted in favor of a very large “class consisting of all persons of Mexican ancestry or of a Spanish surname who are, will be or have been lawfully present in the Judicial District of Northern Illinois.” 398 *1073 F.Supp. at 892. 2 Whether the possibility that any individual class member will be injured by future official conduct of the kind complained of is greater here than it was in Rizzo 3 or Calvin cannot be determined from this record, but I doubt that any difference that exists is legally significant. As for the organization plaintiff, it “can have standing as the representative of its members only if it has alleged facts sufficient to make out a case or controversy had the members themselves brought suit.” Warth v. Seldin, 422 U.S. 490, 516 , 95 S.Ct. 2197, 2214 , 45 L.Ed.2d 343 (1975); Calvin v. Conlisk (II), supra, 534 F.2d at 1252-1253 .
In O’Shea v. Littleton, supra, after concluding that the threat of injury to the plaintiffs from the challenged official course of conduct was “too remote to satisfy the case-or-controversy requirement,” the Court observed that its conclusion was strengthened by a reluctance to interfere with the state’s administration of its criminal laws. 414 U.S. at 498-499 , 94 S.Ct. at 677 , citing Boyle v. Landry, 401 U.S. 77, 81 , 91 S.Ct. 758 , 27 L.Ed.2d 696 (1971). These considerations, the Court said, “shade into those determining whether the complaint states a sound basis for equitable relief . . . .” 414 U.S. at 499 , 94 S.Ct. at 677 . There is a similar relationship here. “[T]he principles of equitable restraint” which the Court in O’Shea proceeded to rely on as an alternative ground for denying relief, 414 U.S. at 502 , 94 S.Ct. 669 , and which concerned not the court’s power but the appropriateness of granting the equitable relief sought, 4 related to federalism and a reluctance to impinge on the administration of state laws. Plaintiffs argue, and the majority at one point seems to agree, 5 that these principles therefore have no application here, where the impingement is upon the administration by the federal government of its laws. Plaintiffs thus state, “[Njotions of federalism and avoidance of conflict between the federal courts and state government are irrelevant.” Indeed they are, but other problems are presented when a federal court is asked to enjoin the activities of a co-equal branch of the federal government. We recognized this in Calvin *1074 v. Conlisk (I), 520 F.2d 1, 5-6 (7th Cir. 1975), vacated and remanded, 424 U.S. 902 , 96 S.Ct. 1093 , 47 L.Ed.2d 307 (1976), when we distinguished Gilligan v. Morgan, 413 U.S. 1 , 93 S.Ct. 2440 , 37 L.Ed.2d 407 (1973), on the ground that “[t]here is no provision of the Constitution analogous to Article I, Section 8, Clause 16 (relied upon in Gilligan), that would be applicable to this case, which involves an area within the control of a municipal agency, rather than a co-equal branch of the federal government.” See also Rizzo v. Goode, supra, 423 U.S. at 378-379 , 96 S.Ct. at 608 . 6
“[P]rinciples of equitable restraint” analogous to those found applicable in O’Shea, 414 U.S. at 502 , 94 S.Ct. 669 , should govern here. 7 Congress’ plenary power to exclude aliens has been described as “a power to be exercised exclusively by the political branches of government.” Kleindienst v. Mandel, 408 U.S. 753, 765 , 92 S.Ct. 2576, 2583 , 33 L.Ed.2d 683 (1972). “‘[O]ver no conceivable subject is the legislative power of Congress more complete than it is over’ the admission of aliens.” Id. at 766 , 92 5. Ct. at 2583, quoting from Oceanic Steam Navigation Co. v. Stranahan, 214 U.S. 320, 339 , 29 S.Ct. 671 , 53 L.Ed. 1013 (1909). Congress has exercised this power and charged the Attorney General and INS with the responsibility of administration and enforcement. The discharge of those responsibilities, which, as the District Court recognized, involves “the protection of the Nation and its economy from the consequences of illegal immigration,” 398 F.Supp. at 898, will be disrupted and impeded by the injunction under review. Cf. Baker v. Carr, 369 U.S. 186, 217 , 82 S.Ct. 691 , 7 L.Ed.2d 663 (1962).
The fact that an injunction is negative in terms does not, of course, prevent it from having such an effect, as the Supreme Court recognized in O’Shea, 414 U.S. at 500-502 , 94 S.Ct. 669 , where a negative injunction was sought, id. at 492-493 , 94 S.Ct. 669 . The District Court in the case at bar recognized that it was attempting, in the injunction, to define “the standards under which defendants may perform their official duties in the future. . . ” 398 F.Supp. at 898. Those standards, however, are not precisely defined, for this would have required a detailed code interpreting and predicting past and future decisions under the developing law of search and seizure. 8 Often even judges, in the leisure of hindsight, cannot agree on whether in a given case there was probable cause or authorized consent justifying warrantless action, yet agents must decide such questions on the scene of action, on pain of contempt. Nor does the injunction indicate the “specific articulable facts,” id. at 899, 900, 94 S.Ct. 669 , which the District Court would hold necessary to justify a street or plant interrogation. The court recognized the impracticability of making “a list of articulable facts.” 398 F.Supp. at 899. The agents are left to make their own “on-the-spot assessments of the totality of the circumstances which they observe and about which they are reliably informed.” Id. The correct *1075 ness of their assessments will have to be determined, and the standards thus fleshed out, in contempt proceedings, which may be instituted by any of perhaps hundreds of thousands of class members. The first round of such contempt proceedings, arising from events occurring during the pendency of the appeal, 9 is already under way. It seems likely that the District Court will be heavily involved in the operations of INS for a long time. Meanwhile, there is a real danger that agents’ fear of being held in contempt will make them hesitant to perform their duties. 10 The injunction will “unnecessarily involve the courts in police matters and dictate action in situations in which discretion and flexibility are most important.” Long v. District of Columbia, 152 U.S.App.D.C. 187 , 469 F.2d 927, 932 (1972), quoted by Burger, C. J., concurring and dissenting in Allee v. Medrano, supra, 416 U.S. at 859-860 , 94 S.Ct. 2191 . See also Comment, The Federal Injunction as a Remedy for Unconstitutional Police Conduct, 78 Yale L.J. 143 , 149 (1968). 11
I recognize that the remedy of damages, authorized against federal officers in Bivens v. Six Unknown Named Agents, 403 U.S. 388 , 91 S.Ct. 1999 , 29 L.Ed.2d 619 (1971), is imperfect. The amount of damages may be difficult to measure. Also, good faith is a defense, although that defense is available only if there is doubt as to the lawfulness of official conduct, and then only until the doubt has been resolved and officers are thus put on notice. But citizens generally do not have injunctive protection against illegal acts, and, as noted above, there has been an insufficient showing that any individual member of the plaintiff class in this case is so uniquely situated that such protection is necessary as to him. Cf. Calvin v. Conlisk (II), supra, 534 F.2d at 1252-1253 . In addition, implicit in O’Shea and Rizzo is the recognition that the comparative shortcomings of a damage action were not enough to compel injunctive relief in the face of the important reason for equitable restraint there articulated. Similarly, they are not enough, in my opinion, to justify the imposition by a federal court upon a co-equal branch of the federal government of sweeping, contempt-sanctioned prior restraints upon the exercise of a power which the Supreme Court has said is “to be exercised exclusively by the political branches of government.” See Kleindienst v. Mandel, supra, 408 U.S. at 765 , 92 S.Ct. at 2583 .
Moreover, the imperfections of the damage remedy do not establish a case for the judiciary’s regulation of the operations of the Executive Branch by injunction. Once the illegality of a given kind of INS conduct is established by court decision in a damage action or, as in United States v. *1076 Brignoni-Ponce, 422 U.S. 873 , 95 S.Ct. 2574 (1975), a criminal case, it is reasonable to expect that the future conduct of government agents will be governed by that decision. To assume otherwise is to assume that the Attorney General of the United States will behave lawlessly or allow his subordinates to do so.
If I were to reach the merits, I would agree with the majority and the District Court that the warrantless invasions of sleeping quarters were violations of the occupants’ Fourth Amendment rights. Entering factory premises without the employer’s consent, if it occurred, is a violation of his right, and I should think his invitees share in that right. The District Court’s holding with respect to street interrogations, which is the basis for the standard embodied in the injunctive provisions governing interrogations in both street and plant settings, appears to be approved in the text of the majority opinion without much discussion; but footnote 10, added in response to this dissent, seems to qualify this approval. The correctness of the District Court’s holding depends upon the extrapolation from United States v. BrignoniPonce, supra, 422 U.S. at 873, 95 S.Ct. 2574 . As the District Court noted, 398 F.Supp. at 897, the Supreme Court in that case, while holding that INS officers on roving patrol away from the border or its functional equivalents may not stop vehicles without a reasonably based suspicion that they contain aliens who may be illegally in the country, specifically reserved the question whether INS agents may “stop persons reasonably believed to be aliens when there is no reason to believe they are illegally in the country.” 422 U.S. at 884, n. 9, 95 S.Ct. at 2582. Vehicle stops, which were all the Supreme Court had before it in that case, always involve an involuntary detention and are much more serious intrusions than street interrogations. The District of Columbia Circuit, in a series of cases the District Court declined to follow, 398 F.Supp. at 898-899, has distinguished, in situations not involving vehicle stops, between mere questioning and temporary detention, recognizing that in the former situation the statute, § 287(a)(1) of the Immigration and Nationality Act, 8 U.S.C. § 1357 (a)(1), requires only a reasonable belief on the officer’s part that the person to be questioned is an alien, not that the person is illegally in the United States. 12 The Eighth Circuit appears to be in accord. 13 I am not persuaded that an immigration officer violates a person’s Fourth Amendment rights by the mere interrogation the statute authorizes. *1077 One’s “freedom to walk away,” see Terry v. Ohio, 392 U.S. 1, 16 , 88 S.Ct. 1868 , 20 L.Ed.2d 889 (1968), is not restrained by mere questions, and the intrusion upon his privacy is minimal. 14 I would follow the Court of Appeals for the District of Columbia and allow INS agents to do what the statute authorizes them to do. 15 I would not, however, find it necessary to decide the questions discussed in this paragraph in order to dispose of this appeal because of my view that plaintiffs are not entitled to injunctive relief.
. See Justice White, concurring, in Terry v. Ohio, supra, 392 U.S. at 34 , 88 S.Ct. at 1886 :
“There is nothing in the Constitution which prevents a policeman from addressing questions to anyone on the streets. Absent special circumstances, the person approached may not be detained or frisked but may refuse to cooperate and go on his way.”
. Perhaps by its note 10, added as a response to the above and preceding portions of the text, the majority would also. The majority agrees that INS agents not only may “engage individuals on the street in casual conversations,” but also may “merely question an individual about his right to be in this country.” I take it this amounts to a modification of the provision of the injunction prohibiting “interrogating” persons in the absence of specified articulable facts justifying a suspicion of alienage and illegal presence in the country. I agree with the majority that if the individual refuses to cooperate and walks away, the refusal could not be the basis for detaining him. Whether it could be considered in combination with other articulable facts, as even ethnic appearances may be, United States v. Brignoni-Ponce, supra, 422 U.S. at 887, 95 S.Ct. 2574 , in arriving at a reasonable suspicion is a question best left for an actual case involving such facts.
. In neither Hague v. C.I.O., 307 U.S. 496 , 59 S.Ct. 954 , 83 L.Ed. 1423 (1939), nor Allee v. Medrano, 416 U.S. 802 , 94 S.Ct. 2192 , 40 L.Ed.2d 566 (1974), did the Court discuss the plaintiffs’ standing, but those cases are distinguishable in any event. In Hague the official action constituted a prior restraint on the exercise of First Amendment rights by members of the target group, and there was therefore a demonstrable future impact on each member of the group. In Allee, the plaintiffs, a union and union organizers, were the targets of repeated and systematic harassment and of a state anti-picketing injunction. There was no doubt as to the chilling effect of the wrongful conduct on the plaintiffs’ rights of free expression, assembly, and association.
. The number of persons in that class cannot be approximated. In the United States as a whole, there are, in addition to the millions of persons of Mexican ancestry or with Spanish surnames who are citizens, many more who are aliens legally present in the country. In addition, the INS estimated in its 1974 Annual Report, p. iii, there may be 10 or 12 million aliens illegally in the country. The same report states that 92% of the deportable aliens arrested in 1974 were from Mexico. Id. at 94. See United States v. Brignoni-Ponce, 422 U.S. 873 , 878 n. 5, 95 S.Ct. 2574 , 45 L.Ed.2d 607 (1975). See also United States v. Martinez-Fuerte,U.S.-,-, 96 S.Ct. 3074, 3078 , 49 L.Ed.2d - (1976).
Even if the prerequisites for injunctive relief were satisfied as to the named plaintiffs and other persons of Mexican ancestry, the inclusion in the class protected by the injunction of “all persons . . . of a Spanish surname” who are lawfully present in the district seems to me to go too far. There is no showing that persons having Spanish surnames who are not of Mexican ancestry have been subjected to unreasonable searches and seizures. Nor is there any indication of how INS agents are to determine the surnames of persons who have Spanish surnames but do not appear to be of Mexican, Latin American, or Spanish ancestry.
. While, as the majority states, there are more persons involved here than in Rizzo , there are fewer incidents.
. “[W]hether the complaint states a sound basis for equitable relief,” and “the principles of equitable restraint” which bear on that issue do not relate to the existence of a case or controversy, i. e., the power of the court to entertain the case. Rather they relate to whether it is appropriate for the court to exercise its power. 414 U.S, at 499, 94 S.Ct. 669 . Footnote 5 of the majority opinion thus misconstrues my argument. I agree that, if we assume plaintiffs have the necessary standing, whether relief should be granted here “depends upon the balancing of traditional equitable considerations,” and that the issue therefore is whether the relief requested would “unduly interfere with the exercise of lawful authority.” See note 5, supra, at p. 1068. But, for the reasons stated in tne text of this dissent, I disagree with the majority’s conclusion that this injunction “does not suffer from [the] evil” of undue interference.
. In distinguishing Rizzo , the majority states: “Finally, injunctive relief was refused because under principles of federalism, United States courts should not ordinarily interfere with internal disciplinary affairs of a state agency.”
. The appropriateness of judicial restraint in cases such as the one at bar has not been considered directly by the Supreme Court because the cases permitting sweeping federal injunctions against law enforcement officers, the extension of which Rizzo v. Goode, supra, appears to have limited, have so far involved only state officers. See, e. g., Hague v. C.I.O., 307 U.S. 496 , 59 S.Ct. 954 , 83 L.Ed. 1423 (1939); Allee v. Medrano, 416 U.S. 802 , 94 S.Ct. 2191 , 40 L.Ed.2d 566 (1974).
. I do not of course suggest that executive officers of the federal government are immune from injunctive remedies. In an appropriate case an injunction prohibiting or requiring specific action by such an officer may be obtained by an individual, as in Marbury v. Madison, 5 U.S. (1 Cranch) 137, 170 , 2 L.Ed. 60 (1803), and Breen v. Selective Service Local Board No. 16, 396 U.S. 460 , 90 S.Ct. 661 , 24 L.Ed.2d 653 (1970) , cited by the majority, or on behalf of a class, as in Green v. Connally, 330 F.Supp. 1150 (D.D.C.1971), affirmed sub nom. Coit v. Green, 404 U.S. 997 , 92 S.Ct. 564 , 30 L.Ed.2d 550 (1971) , also cited by the majority.
. Cf. Terry v. Ohio, 392 U.S. 1, 15 , 88 S.Ct. 1868, 1876 , 20 L.Ed.2d 889 (1968):
“No judicial opinion can comprehend the protean variety of the street encounter, and we can only judge the facts of the case before us.”
. Numerous depositions had been taken but the District Court had not yet held hearings at the time this appeal was submitted to us.
. In its note 11, added in response to the above portion of this dissent, the majority attempts to allay the concerns expressed in the text by suggesting that the contempt sanction will be available only when there is “a blatant disregard for Fourth Amendment rights.” This seems to amount to a modification of the injunction. To some undetermined extent, it is not to be enforced by contempt. How the list of specific articulable facts which the District Court declined to provide, 398 F.Supp. at 899, is ever to be developed in the absence of contempt proceedings, is not made clear. At any rate, I remain of the view that the authorities cited in the text are correct in perceiving danger in .an injunction of the kind before us.
. This distinguishes the case from Green v. Connally, supra, D.C., 330 F.Supp. 1150 , in which the district court enjoined United States Treasury officials from according tax exempt status and deductibility of contributions to private schools in Mississippi that discriminated against black students.
If the majority’s reference to the possibility that the district judge may ultimately decide to afford only declaratory relief is to be read as indicating a preference for that kind of relief instead of injunctive relief, the problems discussed in the text are still not solved. The requirements of justiciability are not reduced when only declaratory relief is to be given. Alabama State Federation of Labor v. McAdory, 325 U.S. 450, 461 , 65 S.Ct. 1384 , 89 L.Ed. 1725 (1945). The existence of a broad and vague declaratory judgment would have an effect similar to an injunction upon the conduct and morale of the agents. And in any event, the appropriateness of declaratory relief would not justify the preliminary injunction.
. In Au Yi Lau v. INS, 144 U.S.App.D.C. 147 , 445 F.2d 217 , 222 (1971), cert. denied, 404 U.S. 864 , 92 S.Ct. 64 , 30 L.Ed.2d 108 (1971), Judge McGowan (with Judges Fahy and Leventhal), referring to that court’s earlier Yam Sang Kwai v. INS, 133 U.S.App.D.C. 369 , 411 F.2d 683 (1969), cert. denied, 396 U.S. 877 , 90 S.Ct. 148 , 24 L.Ed.2d 135 (1970), said:
“[W]e viewed this provision (Section 287(a)(1)) as according, at the least, to immigration officers the right to seek to interrogate individuals reasonably believed to be of alien origin. The underlying rationale of that decision was that the minimal invasion of the privacy of the individual approached for questioning was justified by the special needs of immigration officials to make such interrogations. This allowance for mere questioning, which assumes the individual’s cooperation, is analogous to decisions which have contemplated the same scope of authority for police officers, as well as for other administrative officials.” (Footnotes omitted.)
Cf. also Cheung Tin Wong v. INS, 152 U.S.App. D.C. 66, 468 F.2d 1123, 1128 (1972).
I do not read the INS guidelines as inconsistent with the District of Columbia Circuit’s view (compare majority opinion following note 7), nor, apparently, did the District Court. The guidelines referred to by the majority “do not apply when [the agent] merely talk[s] to a person so long as he knows he is free to go . . . They apply only in situations where [the agent] detainfs] an individual but [does] not have probable cause to arrest him.” 398 F.Supp. at 902. And while agents are instructed that they “should have what a reasonable person would consider ‘reason to believe’ that the person he proposes to interrogate is an alien,” id. at 903, nothing is said about reason to believe the person’s presence in the United States is illegal.
. That court, in Shu Fuk Cheung v. INS, 476 F.2d 1180, 1181-1182 (8th Cir. 1973), after quoting from Au Yi Lau the passage quoted in note 12, supra, held that even a temporary detention for questioning did not amount to a constitutional deprivation.

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Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/9463026. Public record. Not legal advice.