Citations
- 349 F. Supp. 3d 1276
Full opinion text
KATHLEEN M. WILLIAMS, UNITED STATES DISTRICT JUDGE
THIS MATTER is before the Court on Defendant Alexander Martinez's motion to dismiss (DE 68), Defendants United States Department of Homeland Security ("DHS") and United States Immigration and Customs Enforcement's ("ICE") motion to dismiss (DE 69), and Defendant Miami-Dade County's ("County") motion to dismiss (DE 70). Plaintiff Garland Creedle ("Mr. Creedle") filed a response in opposition to each motion. (DE 87; DE 88; DE 89). Defendants replied. (DE 100; DE 101; DE 102). For the reasons below, Martinez's motion to dismiss is GRANTED , while DHS and ICE's motion to dismiss and the County's motion to dismiss are GRANTED IN PART AND DENIED IN PART.
I. Background
Mr. Creedle filed his original complaint against Carlos A. Gimenez and the County on July 5, 2017. (DE 1). This Court held a hearing on May 16, 2018, during which it granted in part Gimenez and the County's first motion to dismiss. (DE 47). On June 1, 2018, Mr. Creedle filed an amended complaint against the County, DHS, ICE, and Martinez, an ICE officer. (DE 48). Defendants filed motions to dismiss the amended complaint soon after. (DE 68; DE 69; DE 70).
For purposes of ruling on the motions to dismiss, the Court accepts the following facts alleged in the amended complaint and contained in the exhibits as true. Mr. Creedle is a U.S. citizen who was 19 years old when the amended complaint was filed. (DE 48 at 3). Although Mr. Creedle has been a U.S. citizen since the moment of his birth by virtue of his father's U.S. citizenship, when he came to the U.S. from Honduras in 2015, ICE arrested him and placed him in administrative removal proceedings. Id. at 9-10. In April 2015, DHS filed a motion with the immigration judge stating that the proceedings should be terminated because Mr. Creedle is a U.S. citizen. Id. at 10; see also DE 48-1, Ex. B. The immigration judge granted the motion and terminated the proceedings against Mr. Creedle. Id. ; see also DE 48-1, Ex. C. It is not clear from the amended complaint or the Parties' briefing why removal proceedings were initiated against a U.S. citizen.
On March 12, 2017, Mr. Creedle was arrested after an alleged domestic dispute and taken to the Miami-Dade County jail. (DE 48 at 10). Mr. Creedle was never charged with an offense related to this arrest. Id. That evening, Miami-Dade Corrections and Rehabilitation Department ("MDC") officials fingerprinted Mr. Creedle and sent his fingerprints to DHS. Id. at 4, 10. On March 13, 2017, MDC received an immigration detainer request from Martinez, an immigration enforcement officer, listing Mr. Creedle as its subject. Id. The "Request for Voluntary Transfer" form stated that Mr. Creedle was "a removable alien" under civil immigration law and asked MDC to hold him for up to 48 hours after he would otherwise be released from MDC's custody. Id. at 11.
The detainer did not allege probable cause to believe that Mr. Creedle had committed a crime, did not "state facts amounting to an individualized determination that there was probable cause to believe that [Mr. Creedle] was removable from the U.S.," and did not state that he posed a risk of flight. Id. at 11. Instead, the detainer form asserted that "[p]robable cause exists that [Mr. Creedle] is a removable alien" and, as support for this assertion, a box on the form had been checked next to an option stating that ICE's probable cause was based on "biometric confirmation of the subject's identity and a records check of federal databases that affirmatively indicate, by themselves or in addition to other reliable information, that the subject either lacks immigration status or notwithstanding such status is removable under U.S. immigration law." Id. ; see also DE 48-1, Ex. D. The form was signed only by Martinez.
On the same day, Mr. Creedle posted bond to be released from MDC. Id. at 11. Mr. Creedle told MDC officials that he was a U.S. citizen, but because of the ICE detainer, MDC refused to release him. Id. at 10. Instead, MDC detained him until the following day, March 14, 2017, after ICE officials had interviewed Mr. Creedle and withdrawn the detainer request. Id. at 12.
Mr. Creedle alleges that the County re-arrested him on March 13, 2017 pursuant to a recent change in policy that, in effect, requires MDC staff to "honor all immigration detainer requests." Id. at 9. This policy reversed the County's previous policy, which had been in place since December 2013 and significantly circumscribed the County's authority to arrest individuals pursuant to immigration detainer requests. Id. at 7. The 2013 policy stated that MDC could honor detainer requests from ICE only if (1) "the federal government agrees in writing to reimburse Miami-Dade County for any and all costs relating to compliance with [ICE] detainer requests"; (2) "the inmate that is the subject of such a request has a previous conviction for a Forcible Felony ..."; and (3) the inmate has, at the time the County received the detainer request, "a pending charge of a non-bondable offense...." Miami-Dade Cty. Bd. of Comm'rs, Resolution 1008-13, at 5 (Dec. 3, 2013), http://www.miamidade.gov/govaction/legistarfiles/MinMatters/Y2013/132196min.pdf. Because the federal government "declined to reimburse the County for any expenses associated with detainers," MDC stopped arresting individuals based on detainer requests in January 2014. (DE 48 at 7-8).
In 2016, the Board ratified its position when it unanimously opposed "statewide legislation that would preempt its anti-detainer policy." Id. at 8. Resolution 77-16, which the Board passed on January 20, 2016, cited the fact that "federal courts have found that local law enforcement agencies that detain individuals on the sole authority of a detainer request violate the Fourth Amendment of the U.S. Constitution, exposing such agencies to legal liability unless there has been an independent finding of probable cause to justify detention." Id. The Board's resolution goes on to state that "while criminal detainers are subject to multiple procedural safeguards, including a requirement of court approval, [ICE] detainer requests lack comparable protections ... [because] a judge is not required to review or approve an immigration detainer." Miami-Dade Cty. Bd. of Comm'rs, Resolution 77-16, at 5-6 (Jan. 20, 2016), http://www.miamidade.gov/govaction/legistarfiles/MinMatters/Y2015/153028min.pdf. The Board noted that "a judge is not required to review or approve an immigration detainer," and that a detainer "may be issued by a single Immigration[ ] and Customs Enforcement officer when there are no immigration proceedings pending." Id. at 6. "[T]his process," the Board found, "does not meet the U.S. Constitution's minimum standard for authorizing detention after an inmate is scheduled to be released." Id.
Despite the County's clear position on the legality and efficacy of honoring all detainer requests, on January 26, 2017, Miami-Dade County Mayor Gimenez reversed course, issuing a memorandum to MDC that ordered it to "honor all immigration detainer requests." (DE 48-1). The directive was not preceded by any public notice or opportunity for debate, nor did it mention the Board's 2013 resolution limiting MDC's authority to hold people pursuant to detainer requests and the myriad legal concerns with honoring detainers.
On February 17, 2017, the Board ratified the Mayor's directive and amended its 2013 Resolution (1008-13) to direct the Mayor "to ensure that, related to immigration detainer requests, Miami-Dade County ... is cooperating with the federal government to the extent permissible by law." Miami-Dade Cty. Bd. of Comm'rs, Resolution 163-17 (Feb. 17, 2017), http://www.miamidade.gov/govaction/matter.asp?matter=170440&file=false&yearFolder=Y201. MDC is following the Mayor's directive-as ratified by the Board's resolution-and, since January 26, 2017, has maintained a policy and practice of re-arresting individuals in its custody after their criminal custody has ended on the sole basis that the person is the subject of an immigration detainer request.
Mr. Creedle's amended complaint contains three counts against the County. Counts I and II are brought under 42 U.S.C. § 1983 and allege that the County violated Mr. Creedle's Fourth and Fourteenth Amendment rights under the U.S. Constitution. (DE 48 at 12-13). Count III is a claim for false imprisonment under Florida law. Id. at 14. Counts IV and V against DHS and ICE each seek declaratory relief and damages. Count IV-brought under Section 706(2) of the Administrative Procedure Act ("APA")-seeks a declaratory judgment that ICE exceeded its statutory authority; Count V seeks a declaratory judgment that ICE's actions violated Mr. Creedle's Fourth Amendment rights. Id. at 15-16. Counts VI and VII against Martinez are Bivens claims brought under the Fourth and Fifth Amendments, respectively. Id. at 16-17.
The amended complaint seeks: (1) a declaration that the County's policy of arresting people pursuant to immigration detainers is unlawful, (2) a declaration that Mr. Creedle's arrest pursuant to the detainer violated his Fourth and Fourteenth Amendment rights and constituted false imprisonment under Florida law, (3) a declaration that the detainer issued by ICE exceeded ICE's statutory authority and violated Mr. Creedle's Fourth Amendment rights; (4) a declaration that Martinez violated Mr. Creedle's Fourth and Fifth Amendment rights; (5) monetary damages against the County under 42 U.S.C. § 1983 ; and (6) monetary damages against DHS, ICE, and Martinez. (DE 48 at 18).
All Defendants have moved to dismiss with prejudice. DHS and ICE moved to dismiss on the grounds that: (1) Mr. Creedle lacks standing to seek declaratory relief because he is not likely to suffer the same injury in the future; (2) Mr. Creedle's request for declaratory relief is moot because ICE has since altered its detainer policies; and (3) Mr. Creedle has failed to state a claim because ICE's issuance of the detainer was authorized by federal law and therefore did not exceed ICE's statutory authority or violate Mr. Creedle's Fourth Amendment rights. (DE 69 at 7-11).
The County moved to dismiss on the grounds that: (1) Mr. Creedle lacks standing to seek declaratory relief because he is not likely to suffer the same alleged injury in the future; (2) there can be no municipal liability for the County under Section 1983 because an official policy authorized by law cannot be the "proximate cause of a constitutional violation"; (3) the County's cooperation with ICE is expressly allowed under federal and state law, and; (4) the County's cooperation with ICE occurs under color of federal authority. (DE 70 at 1).
Martinez moved to dismiss on the grounds that: (1) Bivens does not apply in the context of a wrongful immigration detainer issued by an immigration officer, and; (2) Martinez is entitled to qualified immunity. (DE 68 at 4, 11).
II. STANDARD OF REVIEW
In ruling on a motion to dismiss for failure to state a claim under Federal Rule of Civil Procedure 12(b)(6), the court assumes as true all well-pled factual allegations and determines whether they plausibly give rise to an entitlement for relief. Ashcroft v. Iqbal , 556 U.S. 662, 129 S.Ct. 1937, 1950, 173 L.Ed.2d 868 (2009). To survive a motion to dismiss, a complaint must contain sufficient facts to state a claim for relief that is plausible on its face. Bell Atlantic Corp. v. Twombly , 550 U.S. 544, 570, 127 S.Ct. 1955, 167 L.Ed.2d 929 (2007). Plaintiffs make a facially plausible claim when they plead factual content from which the court can reasonably infer that defendants are liable for the misconduct alleged. Iqbal , 129 S.Ct. at 1949 (citing Twombly , 550 U.S. at 556, 127 S.Ct. 1955 ). "The plausibility standard is not akin to a 'probability requirement' but it asks for more than a sheer possibility that a defendant has acted unlawfully." Id. In determining whether a complaint states a plausible claim for relief, the Court draws on its judicial experience and common sense. Id. at 1950.
Although the court resolves all doubts or inferences in the plaintiff's favor, the plaintiff bears the burden to frame the complaint with sufficient facts to suggest that he is entitled to relief. Twombly , 550 U.S. at 556, 127 S.Ct. 1955. A pleading that offers labels and conclusions, a formulaic recitation of the elements of a cause of action, or naked assertions devoid of further factual enhancement will not stand. Id. at 557, 127 S.Ct. 1955. Dismissal pursuant to a Rule 12(b)(6) motion is warranted "only if it is clear that no relief could be granted under any set of facts that could be proved consistent with the allegations of the complaint." Shands Teaching Hosp. and Clinics, Inc. v. Beech St. Corp. , 208 F.3d 1308, 1310 (11th Cir. 2000) (quoting Hishon v. King & Spalding , 467 U.S. 69, 73, 104 S.Ct. 2229, 81 L.Ed.2d 59 (1984) ).
A challenge to subject matter jurisdiction under Rule 12(b)(1) of the Federal Rules of Civil Procedure may be presented as either a facial or factual attack. McElmurray v. Consol. Gov't of August-Richmond Cty. , 501 F.3d 1244, 1251 (11th Cir. 2007). Facial attacks challenge subject matter jurisdiction based on the allegations in the complaint, which the district court takes as true when considering the motion. Lawrence v. Dunbar , 919 F.2d 1525, 1529 (11th Cir. 1990). In contrast, factual attacks challenge the existence of subject matter jurisdiction in fact, and in such cases "no presumptive truthfulness attaches to plaintiff's allegations." Id. The Eleventh Circuit has held that "the party invoking the court's jurisdiction bears the burden of proving, by a preponderance of the evidence, facts supporting the existence of federal jurisdiction." McCormick v. Aderholt , 293 F.3d 1254, 1257 (11th Cir. 2002).
III. DISCUSSION
The Court first addresses Mr. Creedle's claims for declaratory relief, and the corresponding issues of standing and mootness, in Sections III.A.1 and III.A.2 below, as these arguments raise threshold challenges to the Court's ability to adjudicate certain claims. Then, in Sections III.B and III.C, the Court addresses Count IV-an APA claim-and Count V-a Fourth Amendment claim-against DHS and ICE. Next, in Section III.D, the Court addresses Counts I and II-Fourth and Fourteenth Amendment claims under Section 1983-against the County. In Section III.E, the Court addresses Count III-a claim for false imprisonment-against the County. Finally, in Section III.F, the Court addresses Counts VI and VII-Bi vens claims under the Fourth and Fifth Amendments-against Martinez.
A. Claims for Declaratory Relief
As discussed above, Mr. Creedle brings claims for declaratory relief against both the County and ICE. As to the County, he seeks a declaratory judgment concerning both future and past conduct; he requests a declaration that the County's policy and practice of arresting people on immigration detainers is unlawful, and that its re-arrest of him in March 2017 pursuant to ICE's detainer violated his rights under federal and Florida law. As to ICE, however, Mr. Creedle seeks a declaratory judgment regarding past conduct only-that ICE's issuance of his detainer was unlawful. Defendants insist that Mr. Creedle lacks standing to pursue any declaratory claims and that all such claims are moot.
1. Mr. Creedle Has Standing to Seek Prospective Declaratory Relief
The County and ICE argue that Mr. Creedle lacks standing to obtain declaratory relief because he has not alleged, and cannot show, a sufficient likelihood of future injury from the challenged conduct: detention pursuant to a detainer. (DE 69 at 8; DE 70 at 7). According to Defendants, there is no "real and immediate threat" that Mr. Creedle will ever again be arrested and then held pursuant to a detainer.
To support their argument, Defendants cite to a declaration by Dean Caputo, an ICE officer, which states that "[u]pon information and belief, ICE [Enforcement and Removal Operations] database records state that the Plaintiff, Garland Creedle, is a United States citizen." (DE 69-1). Further, Defendants argue that Mr. Creedle is unlikely to be held pursuant to a detainer again because he is a U.S. citizen. (DE 101 at 3; DE 100 at 3). The County also argues that the fact that Mr. Creedle was arrested again during this litigation-"no detainer was logged, and he was released the very next day after posting bond"-demonstrates that he is not likely to be held by the County pursuant to a detainer in the future. (DE 101 at 3-4). ICE further asserts that Mr. Creedle cannot demonstrate standing because he "can avoid any potential injury associated with any hypothetical future detainer by refraining from further criminal conduct and getting arrested again." (DE 100 at 3) (emphasis in original). In short, Defendants argue that declaratory relief is improper because Plaintiff cannot show a "likelihood of substantial and immediate irreparable injury." (DE 69 at 8) (quoting O'Shea v. Littleton , 414 U.S. 488, 495-96, 94 S.Ct. 669, 38 L.Ed.2d 674 (1974) ).
Mr. Creedle argues that he has standing to seek declaratory relief because the amended complaint contains allegations that support a "reasonable inference" that he will "again suffer future injury from the [D]efendants' conduct." (DE 87 at 6). Specifically, Mr. Creedle contends that his prior history with the immigration system-being forced into removal proceedings and later arrested pursuant to a detainer despite being a U.S. citizen-supports an inference that he is sufficiently likely to be subject to a detainer again. Mr. Creedle further argues that it would be premature to dismiss his claims for declaratory relief at this stage.
"Standing is the threshold question in every federal case, determining the power of the court to entertain the suit." CAMP Legal Def. Fund, Inc. v. City of Atlanta , 451 F.3d 1257, 1269 (11th Cir. 2006) (quoting Warth v. Seldin , 422 U.S. 490, 499, 95 S.Ct. 2197, 45 L.Ed.2d 343 (1975) ). Article III standing has three elements: "[t]he plaintiff must have (1) suffered an injury in fact, (2) that is fairly traceable to the challenged conduct of the defendant, and (3) that is likely to be redressed by a favorable judicial decision." Spokeo, Inc. v. Robins , --- U.S. ----, 136 S.Ct. 1540, 1547, 194 L.Ed.2d 635 (2016), as revised (May 24, 2016) (citing Lujan v. Defenders of Wildlife , 504 U.S. 555, 560-561, 112 S.Ct. 2130, 119 L.Ed.2d 351 (1992) ). To satisfy the first "injury" element, the plaintiff must demonstrate that the injury affects the plaintiff in a personal and individual way. Id. at 1548 ; see also Valley Forge Christian College v. Americans United for Separation of Church and State, Inc. , 454 U.S. 464, 472, 102 S.Ct. 752, 70 L.Ed.2d 700 (1982) (standing requires that the plaintiff "personally has suffered some actual or threatened injury").
"Article III of the U.S. Constitution 'limits the jurisdiction of federal courts to cases and controversies.' " Hartford Cas. Ins. Co. v. Intrastate Const. Corp. , 501 F. App'x 929, 937 (11th Cir. 2012) (quoting Christian Coal. of Fla., Inc. v. United States , 662 F.3d 1182, 1189 (11th Cir. 2011) ). "Similarly, 28 U.S.C. § 2201 provides that a declaratory judgment may only be issued in the case of 'actual controversy,' that is, a 'substantial continuing controversy between parties having adverse legal interests.' " Id. (quoting Emory v. Peeler , 756 F.2d 1547, 1551-52 (11th Cir. 1985) ). "This 'continuing controversy may not be conjectural, hypothetical, or contingent; it must be real and immediate, and create a definite, rather than speculative threat of future injury.' " Id. (quoting Emory , 756 F.2d at 1552 ). "Although a case may have involved an actual controversy initially, the case becomes moot 'when it no longer presents a live controversy with respect to which the court can give meaningful relief.' " Id. (quoting Zinni v. ER Solutions, Inc. , 692 F.3d 1162, 1166 (11th Cir. 2012) ); see also Christian Coal. of Fla., Inc. , 662 F.3d at 1190 (stating that, for purposes of Article III, "the controversy must be extant at all stages of review, not merely at the time the complaint is filed").
" 'A party has standing to seek injunctive relief only if the party alleges, and ultimately proves, a real and immediate-as opposed to a merely conjectural or hypothetical-threat of future injury.' " J W by & through Tammy Williams v. Birmingham Bd. of Educ. , 904 F.3d 1248, 1264 (11th Cir. 2018) (quoting Church v. City of Huntsville , 30 F.3d 1332 (11th Cir. 1994) ). "Whether a future injury is likely to occur in part depends on whether the misconduct alleged is authorized by or part of a government policy." Id. at 1264 (citing 31 Foster Children v. Bush , 329 F.3d 1255, 1266 (11th Cir. 2003) ). "When alleged misconduct is 'authorized or part of a policy, it is significantly more likely that the injury will occur again.' " Id. "On the other hand, if future injury is based on the occurrence of a random or unauthorized act, then the injury is 'too speculative' for standing purposes." Id.
Here, "treating the allegations in the complaint as true and liberally construing the complaint in favor of" Mr. Creedle, this Court concludes that the amended complaint contains allegations "which could reasonably support a finding that [Mr. Creedle] [is] likely to be subject to future injury from the application of the [policy] [he] challenge[s]." See Malowney v. Fed. Collection Deposit Grp. , 193 F.3d 1342, 1347 (11th Cir. 1999) ("[l]n order for this Court to have jurisdiction to issue a declaratory judgment ... [Plaintiffs] must assert a reasonable expectation that the injury they have suffered will continue or will be repeated in the future.").
First, Mr. Creedle alleges that he has already been wrongfully detained twice. In 2015, Mr. Creedle was "arrested" and put in "administrative removal proceedings before an immigration judge." (DE 48 at 10). These proceedings were terminated after DHS filed a motion stating that Mr. Creedle is a U.S. citizen. Id. Mr. Creedle alleges that "[o]n April 30, 2015, an immigration judge granted the federal government's motion and terminated proceedings against [him]." Id. The County nonetheless re-arrested Mr. Creedle pursuant to a detainer two years later on the grounds that ICE had "probable cause" to believe that he was "removable under U.S. immigration law." Id. at 11. Though not dispositive of the issue, Mr. Creedle's prior history of being held unnecessarily for alleged immigration purposes-twice in two years-strongly undermines Defendants' contention that a repeat detention is "highly unlikely" and suggests that Mr. Creedle is susceptible to being held pursuant to a detainer in the future.
Second, at this stage, Defendants' contention that ICE's records "now" reflect that Mr. Creedle is a U.S. citizen cannot defeat standing because Mr. Creedle-a U.S. citizen since birth-was already incorrectly placed in immigration removal proceedings in 2015 and then was unjustifiably held pursuant to a detainer in 2017. At this juncture, the declaration from Caputo is insufficient to defeat standing because it is woefully deficient in information. The declaration fails to state what the "ICE ERO database records" are, whether this is the only database upon which ICE officers rely before issuing detainers, when the ICE ERO database was allegedly updated to reflect that Mr. Creedle is a U.S. citizen, or how the database works. A cursory statement that one of ICE's databases reflects that Mr. Creedle is a U.S. citizen does not overcome the factual allegations in the amended complaint supporting an inference that he is sufficiently likely to suffer the same injury in the future. See Roy v. Cty. of Los Angeles , No. CV-1209012-AB-FFMX, 2018 WL 914773, at *19 (C.D. Cal. Feb. 7, 2018), reconsideration denied , No. CV-1209012-AB-FFMX, 2018 WL 3439168 (C.D. Cal. July 11, 2018) (denying ICE's motion for summary judgment as to the plaintiffs' Fourth Amendment claims on the grounds that "a factual dispute exists as to the reliability of the databases that ICE uses ... to establish probable cause" because plaintiffs presented evidence that "ICE encounters errors in [one database,] CIS[,] in approximately three out of ten cases").
Mr. Creedle's status as a U.S. citizen is also not determinative of whether he is likely to be held pursuant to a detainer in the future because, as other courts have recognized, U.S. citizens are frequently held pursuant to detainers. See, e.g., Uroza v. Salt Lake Cty. , No. 2:11CV713DAK, 2014 WL 4457300, at *5 (D. Utah 2014) ("Between 2008 and 2012, ICE issued detainers against more than 800 U.S. citizens and 28,000 legal permanent residents."); see also Morales v. Chadbourne , 996 F.Supp.2d 19, 37-38 (D.R.I. 2014) (finding that a U.S. citizen who was arrested by local law enforcement pursuant to a detainer on two separate occasions had standing to seek an injunction halting the unlawful use of detainers against her). Indeed, Mr. Creedle has already been subject to a detainer despite immigration officials allegedly knowing that he is a U.S. citizen.
Further, Mr. Creedle's 2018 arrest and release without being held pursuant to a detainer does not undermine Mr. Creedle's standing; it does not establish that he will not be held pursuant to a detainer again. Moreover, the Court has no information regarding whether a detainer was issued, why Mr. Creedle was released, or if the County even notified ICE that Mr. Creedle was in its custody. In short, the factual circumstances related to this arrest are far too unclear to infer that the likelihood of Mr. Creedle being held pursuant to a detainer again is now "too speculative" to confer standing.
ICE and the County rely on the Supreme Court case Los Angeles v. Lyons , 461 U.S. 95, 103 S.Ct. 1660, 75 L.Ed.2d 675 (1983), to support their arguments that Mr. Creedle-given Defendants' factual arguments above-has failed to demonstrate that he is "likely to suffer future injury" from Defendants' conduct. In Lyons , the plaintiff alleged that police officers injured him by subjecting him to a chokehold without justification and that officers in the City regularly used such chokeholds pursuant to the authorization and instruction of the City. Id. at 98, 103 S.Ct. 1660. Lyons "sought declaratory judgment that the use of chokeholds absent proper justification was a per se violation of constitutional rights and an injunction barring the city officers from using chokeholds absent justification." Uroza , 2014 WL 4457300, at *5 (citing Lyons , 461 U.S. at 98, 103 S.Ct. 1660 ). But the Supreme Court held that Lyons lacked standing to obtain injunctive relief because of the "speculative nature of his claims that he will again experience injury as a result of that practice even if continued." Id. (quoting Lyons , 461 U.S. at 109, 103 S.Ct. 1660 ).
In Uroza , the district court explained why the plaintiff in Lyons is far different, for standing purposes, from a plaintiff like Mr. Creedle, who challenges a blanket policy of honoring all immigration detainers as facially unconstitutional. Uroza , 2014 WL 4457300, at *5. First, the court stated that "after Lyons , several federal courts have held that the victim of an established government policy can sue to enjoin that policy even if he would not again be subject to it unless arrested once more." Id. " Lyons , itself, held that plaintiffs lack standing to enjoin incredible or unbelievable policies that do not pose a realistic threat to them." Id. While the Supreme Court in Lyons "thought it 'incredible' that LAPD officers always choked citizens they encountered or that the City authorized them to act in that manner," the plaintiff in Uroza did "not challenge a sporadic practice ... but an established governmental policy." Id. (quoting Lyons , 461 U.S. at 106, 103 S.Ct. 1660 ) ("When a foreign-born person lacking proof of status enters Salt Lake County jail custody, it is not speculation but a near certainty that the jail will notify ICE, ICE will issue a detainer, and the jail will honor the detainer to extend the person's incarceration."). "While it was conjecture for the plaintiff in Lyons to claim that the LAPD would act unconstitutionally 'in every instance of a traffic stop, arrest, or other encounter,' " the court in Uroza explained, "it is a near certainty that [ICE] will continue to issue detainers without probable cause and based only on perceived national origin or ethnicity." Id. (quoting Lyons , 461 U.S. at 106, n.7, 103 S.Ct. 1660 ).
Similarly, in Morales , 996 F.Supp.2d at 37-38, a U.S. citizen who was arrested by local law enforcement pursuant to a detainer on two separate occasions was found to have standing to seek an injunction halting the unlawful use of detainers against her. The court found that the plaintiff had standing because she set forth "plausible allegations that the threat of a repeat, unlawful detention is realistic." Id. at 37 ; see also, e.g., Mack v. Suffolk County , 191 F.R.D. 16, 20 (D. Mass. 2000) (finding that plaintiffs had standing to seek injunctive relief against a policy of strip-searching all women detained at a county jail after being arrested); Georgia Latino All. for Human Rights v. Governor of Georgia , 691 F.3d 1250, 1259 (11th Cir. 2012) (affirming the district court's finding that plaintiffs had standing to enjoin enforcement of certain Immigration and Nationality Act provisions, one of which authorized "law enforcement officers to investigate the immigration status of criminal suspects where the officer has probable cause to believe the suspect committed another criminal offense").
In Georgia Latino Alliance , the Eleventh Circuit addressed and rejected the defendants' argument-identical to the County and ICE's argument-that the plaintiffs lacked standing to challenge a law if they would first need to be arrested before the challenged provision would be triggered. 691 F.3d at 1259 (citing O'Shea v. Littleton , 414 U.S. 488, 497, 94 S.Ct. 669, 38 L.Ed.2d 674 (1974) ) ("The State Officers further contend that we must assume that Plaintiffs will conduct their activities within the law and so avoid prosecution and conviction."). The Eleventh Circuit explained that "[w]hereas in Littleton the alleged unconstitutional conduct could only result from an actual legal violation, prosecution, and conviction for that crime, here all that is necessary for application [of the challenged law] is an officer's finding of probable cause that a legal violation has occurred." Id. (emphasis in original).
The Court agrees with the decisions in Georgia Latino Alliance, Morales, Uroza and other cases that have found that plaintiffs have standing for prospective declaratory relief under similar circumstances. Mr. Creedle is not challenging a sporadic, random practice of government officers gone rogue, but an established, blanket County policy that requires MDC officials to honor all detainers and effectively re-arrest and detain anyone who is the subject of a detainer. This case is not like Lyons , where the plaintiff challenged a valid policy that, on rare occasions, resulted in an unconstitutional application of that policy because of police officers' unjustified conduct. Here, Mr. Creedle challenges the County's current policy and practice of honoring all detainers as unlawful in all circumstances because detainers do not evince probable cause of a crime.
Further, contrary to ICE's argument, Mr. Creedle "need not break the law to end up in this situation again; a police officer need merely think he did." Uroza , 2014 WL 4457300, at *5. Mr. Creedle's likelihood of future injury is akin to that of the plaintiff in Morales , who was found to have standing to seek injunctive relief because "she was twice unlawfully detained based on flawed immigration detainers." Morales , 996 F.Supp.2d at 37. Therefore, the Court finds that Mr. Creedle has set forth plausible allegations that he "remains vulnerable to being the subject of [a] detainer again, not least because he was subject to one before." Uroza , 2014 WL 4457300, at *5.
Accordingly, the Court finds that, at this early stage of the litigation, and viewing the facts alleged in the amended complaint in the light most favorable to Mr. Creedle, he has alleged facts demonstrating that his injury is sufficiently likely to occur again and he therefore has standing to proceed with his claims for prospective declaratory relief against the County. As explained below, however, Mr. Creedle cannot seek declaratory relief solely on the grounds that Defendants' past conduct was unlawful.
2. Mootness
The County and ICE also argue that Mr. Creedle's claims for declaratory relief are moot because "ICE has changed its detainer policies." (DE 69 at 9; DE 70 at 8, n.9). The County and ICE contend that, as of April 2, 2017, "ICE detainers must be accompanied by a signed administrative warrant of arrest issued under 8 U.S.C. § 1226 or § 1231(a)." (DE 69 at 10). The County and ICE also argue that because Mr. Creedle seeks declaratory relief regarding past conduct, the requested "declarations" are impermissible. (DE 70 at 9).
Mr. Creedle, on the other hand, argues that declaratory relief is proper because this is a "classic case of unlawful government action that is capable of repetition, yet evading review." (DE 89 at 17) (quotations omitted). As to the County, Mr. Creedle contends that the change in ICE's policy is irrelevant because the "administrative warrants in no way alter the County's policy of complying with immigration detainer requests, which is the only policy being challenged." Id. at 19. As to ICE, Mr. Creedle submits that his claims are not moot because he is arguing that ICE's "specific issuance of the detainer against him ... violated statutory law and [his] constitutional rights." (DE 87 at 9).
"A case becomes moot-and therefore no longer a 'Case' or 'Controversy' for purposes of Article III-'when the issues presented are no longer live or the parties lack a legally cognizable interest in the outcome.' " Already, LLC v. Nike, Inc. , 568 U.S. 85, 91, 133 S.Ct. 721, 184 L.Ed.2d 553 (2013) (quoting Murphy v. Hunt , 455 U.S. 478, 481, 102 S.Ct. 1181, 71 L.Ed.2d 353 (1982) ) (internal quotation marks omitted). The mootness doctrine is subject to certain exceptions, however.
The Supreme Court has recognized "an exception to the general rule [of mootness] in cases that are 'capable of repetition, yet evading review.' " Murphy , 455 U.S. at 482, 102 S.Ct. 1181 (quoting Weinstein v. Bradford , 423 U.S. 147, 149, 96 S.Ct. 347, 46 L.Ed.2d 350 (1975) ). To establish standing based on this doctrine, a plaintiff must show that "(1) the challenged action was in its duration too short to be fully litigated prior to its cessation or expiration, and (2) there was a reasonable expectation that the same complaining party would be subjected to the same action again." Id. (citations omitted); see also Fla. Right to Life, Inc. v. Lamar , 273 F.3d 1318, 1324, n.6 (11th Cir. 2001) (same). Thus, under this exception, Mr. Creedle must show: (1) that his detention pursuant to the detainer was too short to be fully litigated before it ended, and (2) that he has a reasonable expectation that he will again be arrested pursuant to a detainer.
a. Mr. Creedle's Claims Against the County for Prospective Declaratory Relief are Not Moot
The Court agrees with Mr. Creedle's argument that this case presents the sort of injury that is "capable of repetition, yet evading review." Detainers, by their nature, are meant to result in an individual being held on behalf of ICE for no more than 48 hours. Because 48 hours is an insufficient period in which to litigate a case challenging a detainer, the first prong of the exception to the mootness doctrine is met. The County's cursory argument-presented in a footnote in their motion to dismiss-that Mr. Creedle's claims for declaratory relief are moot because ICE changed its detainer policy to require an accompanying administrative warrant is also unpersuasive. The change in ICE's policy, which is not binding on that agency and could be rescinded at any time, is irrelevant to the County's challenged policy of honoring detainers. See (DE 87 at 10); see also ICE Policy Number 10074.2, Issuance of Immigration Detainers by ICE Immigration Officers (April 2, 2017), at 6 ("This document provides only internal ICE policy guidance, which may be modified, rescinded, or superseded at any time without notice."), https://www.ice.gov/sites/default/files/documents/Document/2017/10074-2.pdf. Therefore, the argument that Mr. Creedle's claims for declaratory relief are moot because ICE has changed its detainer policy during the course of this litigation is unpersuasive.
Further, there remains an active case and controversy because Mr. Creedle is challenging a County policy that remains in place and, as discussed in Section III.A.1, Mr. Creedle has sufficiently alleged a likelihood that he will again be subject to the same injury as a result of the County's challenged conduct. Accordingly, the Court finds that Mr. Creedle's claims against the County for prospective declaratory relief are not moot.
b. Mr. Creedle's Claims Against DHS and ICE for Retrospective Declaratory Relief are Moot
To the extent that Mr. Creedle requests a declaration from this Court related to past conduct alone, such declaratory relief is moot and those requests are denied. See Emory , 756 F.2d at 1552 ; see also Malowney v. Fed. Collection Deposit Grp. , 193 F.3d 1342, 1348 (11th Cir. 1999) ("[A] declaration that the [challenged] statute as applied in the past to these plaintiffs is unconstitutional would [be] nothing more than a gratuitous comment without any force or effect.") (internal quotations omitted).
Mr. Creedle's amended complaint specifically highlights the fact that he seeks a declaration only as to ICE's past conduct. (DE 48 at 18) ("Plaintiff respectfully requests that this Court ... [d]eclare that ICE's issuance of a detainer against Plaintiff exceeded the agency's statutory authority and violated the Fourth Amendment because it purported without lawful authority to authorize Plaintiff's arrest and detention by the County.") (emphasis added). Accordingly, Mr. Creedle's declaratory judgment claims that seek only retrospective declaratory relief, as the claims in Counts IV and V appear to, are dismissed as moot. The Court does not find, however, that Mr. Creedle's claims for damages in Counts IV and V against DHS and ICE are moot.
B. Count IV: Administrative Procedure Act
Mr. Creedle brings Count IV against ICE pursuant to the APA, 5 U.S.C. §§ 101 - 913, which governs the conduct of federal administrative agencies. The APA permits a court to "hold unlawful and set aside agency action, findings and conclusions found to be arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with law." 5 U.S.C. § 706(A). The APA provides for judicial review of all "final agency action for which there is no other adequate remedy in court," id. § 704, except when "statutes preclude judicial review" or the "agency action is committed to agency discretion by law," id. § 701(a).
Mr. Creedle asserts that ICE lacked authority to issue a detainer against him because ICE did so without a written agreement with the County pursuant to 8 U.S.C. § 1357(g). (DE 48 at 15). Mr. Creedle also argues that ICE exceeded its statutory authority under Section 1357 when it issued a detainer against him without probable cause determined by a neutral and impartial magistrate and without "any individualized assessment of his risk of flight." (DE 48 at 11). Although Mr. Creedle does not specify under which subsection of Section 706(2) Count IV is brought, the Court will assume from the language used throughout the amended complaint that the intended section is Section 706(2)(C), which addresses agency action "in excess of statutory jurisdiction, authority, or limitations." 5 U.S.C. § 706(2)(C). ICE contends that Mr. Creedle has failed to state a claim under the APA because ICE was within its statutory authority under Section 1357 when it issued the detainer for Mr. Creedle and, thus, did not violate Mr. Creedle's Fourth Amendment rights.
1. ICE's Authority to Issue Detainers
Under 8 U.S.C. § 1226(a) of the Immigration and Nationality Act ("INA"), "an alien may be arrested and detained" while awaiting a removal decision, but the arrest must be pursuant to "a warrant issued by the Attorney General." 8 U.S.C. § 1226(a). An exception to this warrant requirement is found in Section 1357(a)(2), but that provision allows for a warrantless arrest only if ICE has "reason to believe" that the suspected removable individual "is likely to escape before a warrant can be obtained for his arrest." 8 U.S.C. § 1357(a)(2). The Parties do not dispute that the detainer causing Mr. Creedle's re-arrest was not accompanied by a warrant.
Thus, in effectuating Mr. Creedle's warrantless arrest, ICE was required to comply with Section 1357(a)(2).
Several courts have found that, without a determination that a suspected removable individual is "likely to escape before a warrant can be obtained," ICE exceeds its statutory authority under Section 1357(a)(2) by issuing a detainer against such individual. See, e.g., Moreno v. Napolitano , 213 F.Supp.3d 999 (N.D. III. 2016) (holding that detainers are invalid for exceeding ICE's statutory authority because there was no determination of likelihood of escape); De La Paz v. Coy , 786 F.3d 367, 376 (5th Cir. 2015) ("[E]ven if an agent has reasonable belief, before making an arrest, there must also be a likelihood of the person escaping before a warrant can be obtained for his arrest.") (internal quotations omitted); United States v. Cantu , 519 F.2d 494, 496-97 (7th Cir. 1975) (holding that the statutory requirement of likelihood of escape in 8 U.S.C. § 1357"is always seriously applied"); Mountain High Knitting, Inc. v. Reno , 51 F.3d 216, 218 (9th Cir. 1995) (" Section 1357(a)(2) requires that the arresting officer reasonably believe that the alien is in the country illegally and that she 'is likely to escape before a warrant can be obtained for [her] arrest.' ") (quoting 8 U.S.C. § 1357(a)(2) ) (emphasis in original); Westover v. Reno , 202 F.3d 475, 479-80 (1st Cir. 2000) (noting that an immigration arrest was "in direct violation" of Section 1357(a)(2) because "[w]hile INS agents may have had probable cause to arrest [plaintiff] by the time they took her into custody, there is no evidence that [plaintiff] was likely to escape before a warrant could be obtained for her arrest").
In Moreno v. Napolitano , the court granted summary judgment for plaintiffs-one of whom was a U.S. citizen-who were held by local law enforcement after ICE had issued detainers against them. Moreno v. Napolitano , 213 F.Supp.3d 999 (N.D. III. 2016). The plaintiffs in Moreno brought a claim under Section 706(2)(C) of the APA alleging that ICE's policy of issuing detainers exceeded its statutory authority under Section 1357(a)(2) because ICE failed to make a determination "that the suspected removable alien 'is likely to escape before a warrant can be obtained for his arrest.' " Id. at 1005 (quoting § 1357(a)(2) ). The Moreno court rejected the argument made by defendants that "any potentially removable alien who is in the custody of a local law enforcement agency is, by definition, 'likely to escape before a warrant can be obtained,' once he or she is released," and instead found that "because immigration officers make no determination whatsoever that the subject of a detainer is likely to escape upon release before a warrant can be obtained, ICE's issuance of detainers that seek to detain individuals without a warrant goes beyond its statutory authority to make warrantless arrests under 8 U.S.C. § 1357(a)(2)." Id. at 1007, 1008-09 (citations omitted). The Moreno court also noted that, given ICE's "insistence" that the agency "makes (and always has made) a probable cause determination as to a subject's removability before a detainer is issued, it is difficult to see why ... it would take materially longer for ICE to obtain a warrant than to issue a detainer." Id. at 1006.
Similarly, in Gonzalez v. Immigration & Customs Enf't , No. CV-13-04416-BROFFMX, 2014 WL 12605368, at *7 (CD. Cal. July 28, 2014), the court found that plaintiffs had sufficiently pled a claim that ICE's detainer practices were "ultra vires" because "Plaintiffs alleged that ICE issued-and, as a matter of policy, continues to issue-immigration detainers without probable cause resulting in unlawful detention" and "[p]robable cause is necessary under either 8 U.S.C. § 1357(a) or 8 U.S.C. § 1357(d)." Gonzalez , 2014 WL 12605368, at *7 (citing United States v. Gorman , 314 F.3d 1105, 1112 (9th Cir. 2002) ).
2. Mr. Creedle Has Stated a Claim Against ICE under the APA
The Court agrees with the reasoning and holdings in Moreno and Gonzalez . Thus, the Court finds that Mr. Creedle has stated a plausible claim against ICE under Section 706(2)(C) of the APA based on the allegations that ICE-in issuing an immigration detainer for him-failed to comply with Section 1357(a)(2) because the agency (1) made no determination whatsoever about the chances that Mr. Creedle would have been "likely to escape" before a warrant for his arrest could be obtained, and (2) did not have probable cause to believe that he was removable from the U.S.
Mr. Creedle alleges-and nothing on the face of the detainer suggests otherwise-that when ICE issued the detainer against him the agency did not have "reason to believe that Mr. Creedle posed a risk of flight" and did not conduct "any individualized assessment of Mr. Creedle's risk of flight." (DE 48 at 11). Mr. Creedle also alleges that the detainer was not supported by "a sworn, particularized showing of probable cause that [he] is a noncitizen and removable under federal immigration law." Id. at 5-6. These allegations, taken as true at this stage, are sufficient to state a claim that ICE exceeded its statutory authority when it issued a detainer for Mr. Creedle because ICE failed to comply with an explicit requirement of Section 1357(a)(2) and lacked probable cause to believe that he was removable from the U.S.
Because the Court finds that the allegations in the amended complaint are sufficient to state a claim under the APA on the above-enumerated grounds, the Court need not-at this stage-reach the Parties' arguments regarding whether ICE was authorized to issue a detainer for Mr. Creedle without having a formal agreement with the County under 8 U.S.C. § 1357(g).
C. Count V: Fourth Amendment Claim Against DHS and ICE
ICE next seeks dismissal of Mr. Creedle's Fourth Amendment claim. Issuing a detainer cannot constitute a "seizure" under the Fourth Amendment, according to ICE, because "detainers are requests." (DE 69 at 15). And even if issuing a detainer does constitute a seizure, ICE argues, "that seizure is fully consistent with the Constitution because an ICE-detainer request evidences probable cause of removability in every instance." (DE 100 at 10) (quotations omitted). Mr. Creedle responds that "[b]y issuing a detainer against him ... ICE foreseeably caused Miami-Dade County to arrest and continue to hold" Mr. Creedle in violation of his Fourth Amendment rights. (DE 48 at 16). Mr. Creedle also contends that ICE violated his Fourth Amendment rights by issuing a detainer against him when the agency lacked either probable cause that he was removable from the United States, probable cause that he posed a flight risk, or probable cause that he had committed a crime. (DE 87 at 18).
1. The Fourth Amendment and Probable Cause for ICE to Execute a Warrantless Arrest
The Fourth Amendment to the U.S. Constitution provides that the right of the people to be secure against unreasonable searches and seizures shall not be violated. U.S. Const. amend. IV. Generally, under the Fourth Amendment, "the predicate for an arrest is probable cause to believe the arrestee is committing or has committed a crime." Lopez-Aguilar v. Marion Cty. Sheriff's Dep't , 296 F.Supp.3d 959, 975-76 (S.D. Ind. 2017) (citing Devenpeck v. Alford , 543 U.S. 146, 152, 125 S.Ct. 588, 160 L.Ed.2d 537 (2004) ; Brown v. Texas , 443 U.S. 47, 51, 99 S.Ct. 2637, 61 L.Ed.2d 357 (1979) ; Dunaway v. New York , 442 U.S. 200, 212-13, 99 S.Ct. 2248, 60 L.Ed.2d 824 (1979) ). In the context of federal immigration enforcement, however, federal immigration officials may conduct reasonable arrests to face administrative proceedings based on probable cause that certain civil immigration violations have been committed. See Abel v. United States , 362 U.S. 217, 232-34, 80 S.Ct. 683, 4 L.Ed.2d 668 (1960) ("[L]egislation giving authority to the Attorney General or his delegate to arrest aliens pending deportation proceedings under an administrative warrant, not a judicial warrant within the scope of the Fourth Amendment," has existed "from almost the beginning of the Nation.").
A warrantless arrest is constitutional under the Fourth Amendment only when it is made with probable cause to believe a crime has been committed. Beck , 379 U.S. at 91, 85 S.Ct. 223 ; see also Baker v. McCollan , 443 U.S. 137, 142, 99 S.Ct. 2689, 61 L.Ed.2d 433 (1979) (holding that, under the Fourth Amendment, "a fair and reliable determination of probable cause" of a crime must be provided "as a condition for any significant pretrial restraint of liberty") (citation omitted). The Supreme Court has defined "probable cause" as "facts and circumstances 'sufficient to warrant a prudent man in believing that the (suspect) had committed or was committing a[ ] [criminal] offense.' " Gerstein , 420 U.S. at 111-12, 95 S.Ct. 854 (quoting Beck , 379 U.S. at 91, 85 S.Ct. 223 ) ("These long-prevailing [Fourth Amendment] standards seek to safeguard citizens from rash and ... unfounded charges of crime.") (citation omitted); see also Cozzi v. City of Birmingham , 892 F.3d 1288, 1293-94 (11th Cir. 2018) (same), cert. denied sub nom. Thomas v. Cozzi , --- U.S. ----, 139 S.Ct. 395, 202 L.Ed.2d 289 (2018). "The operative 'reason to believe' standard [in the INA] is equivalent to the constitutional probable cause standard." Davila v. United States , 247 F.Supp.3d 650, 663 (W.D. Pa. 2017) (citing and quoting Babula v. INS , 665 F.2d 293, 298 (3d Cir. 1981) ).
Under 8 U.S.C. § 1226(a) of the INA, "an alien may be arrested and detained" by ICE while awaiting a removal decision, but the arrest must be pursuant to "a warrant issued by [ICE]." 8 U.S.C. § 1226(a). Section 1357(a)(2) provides an exception to the warrant requirement, but this provision allows for a warrantless arrest only if ICE has "reason to believe" that the suspected removable individual "is likely to escape before a warrant can be obtained for his arrest." 8 U.S.C. § 1357(a)(2). Because the detainer causing Mr. Creedle's re-arrest was not accompanied by a warrant, ICE was required to comply with Section 1357(a)(2).
2. Mr. Creedle Has Stated a Fourth Amendment Claim Against ICE
The fact that ICE issued a "voluntary" request for the County to arrest Mr. Creedle on behalf of ICE does not insulate ICE from liability under the Fourth Amendment. See Gonzalez , 2014 WL 12605368, at *5 ("The fact that the immigration detainers impose no mandatory obligation on a law enforcement agency does not necessarily negate causation ... [because] the immigration detainers are intended to-and actually do-induce law enforcement agencies to incarcerate individuals beyond the time they would otherwise be released."). While ICE suggests that, in order to have violated Mr. Creedle's Fourth Amendment rights, the agency itself must have arrested him, several courts have disagreed with this argument.
For example, in Morales v. Chadbourne , 793 F.3d 208 (1st Cir. 2015), the First Circuit affirmed the district court's order allowing a Fourth Amendment claim to proceed against ICE officials who issued a detainer against Morales, a U.S. citizen. The First Circuit found that, "the Constitution requires probable cause for the immigration detention that a detainer requests." Morales , 793 F.3d at 217. The court explained that "[u]nder federal law, immigration officers may arrest and detain an alien 'pending a decision on whether the alien is to be removed from the United States' if a 'warrant [is] issued by the Attorney General.' " Id. (quoting 8 U.S.C. § 1226(a) ) (emphasis added). Statutory authority for warrantless arrests, including the issuance of detainers, is provided in 8 U.S.C. § 1357. "Without a warrant, immigration officers are authorized to arrest an alien only if they have 'reason to believe that the alien so arrested is in the United States in violation of any [immigration] law or regulation and is likely to escape before a warrant can be obtained for his arrest.' " Id. (quoting § 1357(a)(2) ).
Numerous other courts around the country have concluded that ICE can be held liable for its role in issuing detainers that caused arrests in violation of the Fourth Amendment. See, e.g., Uroza , 2014 WL 4457300, at *5 (finding that plaintiff who had been detained for over 43 days pursuant to a detainer had standing to seek an injunction against ICE and denying ICE's motion for summary judgment on damages claims); Mendia v. Garcia , 768 F.3d 1009, 1013 (9th Cir. 2014) (finding that plaintiff's injury was traceable to ICE for purposes of establishing standing to sue for damages where plaintiff alleged that ICE caused his extended detention by issuing a detainer that precluded him from posting bail); Galarza v. Szalczyk , No. 10-CV-06815, 2012 WL 1080020, at *14 (E.D. Pa. 2012) (finding that plaintiff who was held for three days on a detainer stated claims for damages against ICE agent because ICE "lacked probable cause to support the issuance of an immigration detainer"), rev'd on other grounds , 745 F.3d 634 (3d Cir. 2014) ; Gonzalez , 2014 WL 12605368, at *5 (holding that because "immigration detainers are intended to-and actually do-induce law enforcement agencies to incarcerate individuals beyond the time they would otherwise be released," the detention is "directly traceable to ICE" for purposes of standing to seek injunctive relief).
ICE relies heavily on a case recently decided by the U.S. Court of Appeals for the Fifth Circuit, City of El Cenizo v. Texas , 890 F.3d 164 (5th Cir. 2018).
El Cenizo involved a facial challenge to the constitutionality of several provisions of Senate Bill 4 ("SB4"), a law passed by the Texas legislature related to local immigration enforcement activities. The Fifth Circuit reviewed the case on an appeal by all parties challenging the district court's entry of an order granting a preliminary injunction as to several of SB4's provisions, including a provision mandating that local officers comply with detainer requests. El Cenizo , 890 F.3d at 174.
Although El Cenizo contains dicta discussing the Fourth Amendment implications of honoring detainer requests, the procedural posture is markedly different and undermines its applicability. The Fifth Circuit stresses throughout its opinion that plaintiffs had a stringent burden, not only because of the preliminary injunction standard, but also because of the "exacting standard" of bringing a "pre-enforcement facial challenge." Id. at 187. In El Cenizo , no discovery had yet been taken and no facts had been adduced other than those alleged in the complaint. The Fifth Circuit noted that "such a challenge is the most difficult to mount successfully" because "it is not enough for the plaintiffs to demonstrate that the ICE-detainer mandate will often cause Fourth Amendment violations." Id. Instead, plaintiffs "must establish that the mandate is unconstitutional in all of its applications." Id. (internal quotations and citations omitted). In analyzing whether the "ICE-detainer mandate" in SB4 facially violated the Fourth Amendment, the Fifth Circuit stated that "plaintiffs must establish that every seizure authorized by the ICE-detainer mandate violates the Fourth Amendment" and concluded that plaintiffs could not satisfy that "exacting standard." Id.
This Court does not find the analysis in El Cenizo persuasive or helpful in deciding the issues in Defendants' motions to dismiss. The procedural posture there-reviewing the grant of a preliminary injunction enjoining the enforcement of a state law-does not address the very different standard involved here-reviewing a motion to dismiss-where the Court takes as true all well-pled allegations in the amended complaint and views all facts in the light most favorable to Mr. Creedle.
Here, if ICE's issuing a detainer constituted a seizure for Fourth Amendment purposes-as Mr. Creedle alleges it did-the next step in the analysis is whether ICE, when it caused the warrantless arrest that the detainer resulted in, had probable cause to believe both (1) that Mr. Creedle was removable from the U.S., and (2) that Mr. Creedle was likely to escape before a warrant could be obtained for his arrest. See 8 U.S.C. § 1357(a)(2). The Court addresses each of these requirements in turn.
ICE's argument that issuing a detainer could not have violated Mr. Creedle's Fourth Amendment rights because the detainer was voluntary and it was the County, not ICE, that actually arrested Mr. Creedle, is unpersuasive. As the Supreme Court has stated in another Fourth Amendment context, ICE is "responsible for the natural consequences of [its] actions."
Malley v. Briggs , 475 U.S. 335, 345, 106 S.Ct. 1092, 89 L.Ed.2d 271 (1986) ; see also Morales , 793 F.3d at 217 (holding that federal defendants could be liable under the Fourth Amendment for plaintiff's arrest pursuant to a detainer because "a law enforcement officer is responsible for the natural consequences of his actions"). ICE cannot issue a detainer that avers "probable cause" to believe an individual is removable from the U.S., only to later disclaim all responsibility for that person's arrest when it turns out that the individual is a U.S. citizen. See Gonzalez , 2014 WL 12605368, at *5 (holding that because "immigration detainers are intended to-and actually do-induce law enforcement agencies to incarcerate individuals beyond the time they would otherwise be released," the detention is "directly traceable to ICE").
Next, because ICE argues that it had probable cause to issue a detainer for Mr. Creedle for a civil immigration violation (rather than a criminal violation), "a finding of probable cause would require specific 'facts and circumstances sufficient to warrant a prudent [person] in believing' that [Mr. Creedle] was a non-citizen who was subject to detention and removal." Morales , 996 F.Supp.2d at 39 (quoting Gerstein v. Pugh , 420 U.S. 103, 95 S.Ct. 854, 43 L.Ed.2d 54 (1975) ). Because Mr. Creedle alleges that he was arrested without a warrant, his arrest also would have required a probable cause determination that he was "likely to escape before a warrant [could] be obtained." See 8 U.S.C. § 1357(a)(2).
ICE's argument that, even if issuing the detainer did constitute a "seizure" of Mr. Creedle for Fourth Amendment purposes, it had probable cause to issue the detainer based on the language on the detainer form itself also fails. Not only is this argument entirely circular, it also fails substantively because the language on Mr. Creedle's detainer form that purportedly supported ICE's "probable cause" to issue the detainer states: "biometric confirmation of the subject's identity and a records check of federal databases that affirmatively indicate, by themselves or in addition to other reliable information, that the subject either lacks immigration status or notwithstanding such status is removable under U.S. immigration law." Se