Garay v. City of Las Vegas

— 1 — — 2 — UNITED STATES DISTRICT COURT — 3 — DISTRICT OF NEVADA — 4 — ALICIA INES MOYA GARAY, JUAN Case No. 2:20-cv-119-ART-EJY 5 JAIME LOPEZ-JIMENEZ, and ARRIBA LAS VEGAS WORKER ORDER 6 CENTER, 7 Plaintiffs, v. — 8 — CITY OF LAS VEGAS, a municipality; 9 MICHELE FREEMAN, in her official capacity as City of Las Vegas Chief of 10 Department of Public Safety; BANANTO SMITH, in his individual 11 capacity and official capacity as Deputy Chief of Detention Services, — 12 — Respondents. — 13 — — 14 — 15 I. SUMMARY 16 Before the Court are a Motion for Summary Judgment (ECF No. 71), Amended 17 Motion for Summary Judgment (ECF No. 72), and Motion to Strike (ECF No. 79) 18 filed by Plaintiffs Arriba Las Vegas Worker Center, Alicia Ines Moya Garay, and 19 Juan Jaime Lopez-Jimenez (collectively, “Plaintiffs”). Also before the Court is the 20 subject of Plaintiffs’ Motion to Strike, a Counter-Motion for Summary Judgment 21 filed by Defendants City of Las Vegas, Michele Freeman, and Bananto Smith 22 (collectively, “Defendants”). For the reasons explained below, the Court holds sua 23 sponte that United States Immigration and Customs Enforcement (“ICE”) is a 24 required party under Federal Rule of Civil Procedure 19 and dismisses the 25 outstanding motions without prejudice. 26 II. BACKGROUND 27 This action arises from the detention and transfer to ICE custody of Plaintiffs 28 Garay and Lopez-Jimenez by Las Vegas Department of Public Safety (LVDPS) 1 after Garay and Lopez-Jimenez were lawfully arrested. (ECF No. 44 at 6, 7). 2 Plaintiffs bring three claims against Defendants: 1) unlawful seizure in violation 3 of the Fourth Amendment under 42 U.S.C. § 1983 ; 2) unlawful denial of bail in 4 violation of the Fourteenth Amendment’s Due Process Clause; and 3) false 5 imprisonment in violation of Nevada law. (ECF No. 44 at 11, 12, 14). These claims 6 turn on the application of Gerstein v. Pugh, 420 U.S. 103, 125 (1975), which 7 recognized the right of individuals to a neutral determination of probable cause, 8 to the detention of individuals in local jails based on an ICE detainer. The Ninth 9 Circuit has held that Gerstein applies to ICE detention. Gonzalez v. United States 10 Immigr. & Customs Enf't, 975 F.3d 788 , 824 (9th Cir. 2020). This case concerns 11 what, if anything, local jail officials must do to ensure that their detention of an 12 individual based on an ICE detainer complies with the Fourth Amendment. 13 Both Garay and Lopez-Jimenez were lawfully arrested by local authorities for 14 criminal offenses, interviewed by ICE agents, and detained by Defendants based 15 on an ICE detainer and administrative warrant. Plaintiffs do not challenge their 16 initial detention at the city jail, but assert that their continued or “second 17 detention” based on the ICE detainer violates the Fourth Amendment. While in 18 custody on local charges, both Garay and Lopez-Jimenez were interviewed by ICE 19 agents—Garay in person and Lopez-Jimenez by phone—and each admitted they 20 did not have lawful status in the United States. (Id. at 6, 8). ICE then sent an 21 immigration detainer (Form I-247A) and an administrative warrant (Form I-200) 22 to the jail, and the documents were placed in Plaintiffs’ respective files. When 23 Plaintiffs were each due to be released, the jail instead turned them over to ICE. 24 Due to the ICE hold, Garay and Lopez-Jimenez were held for 24 and 10 hours 25 longer than their city sentences required. 26 Plaintiffs allege that when Garay and Lopez-Jimenez were detained LVDPS’ 27 policy was to hold individuals for up to 48 hours past the time where they would 28 otherwise be released to the streets. (ECF No. 44 ¶ 18). The purpose of this 481 hour extension was to give ICE time to take individuals subject to an ICE detainer 2 into ICE custody. (Id.). Defendants claim that in light of an informal policy change 3 they still detain individuals based on an ICE detainer and administrative warrant 4 but no longer hold detainees after the end of their “city time.” Rather, Defendants 5 assert that under current policy, individuals who are subject to an ICE detainer 6 are released to the streets at the end of their “city time” if ICE does not take 7 custody. (ECF No. 78 at 2, 18). 8 Plaintiffs assert that their “second detention” based on the ICE detainer 9 violates the Fourth Amendment because it is not supported by a neutral 10 determination of probable cause. (ECF No. 72 at 15:16-18).1 Gerstein recognizes 11 that if a neutral determination of probable cause does not occur before arrest, 12 based on a valid warrant, it must occur promptly after arrest, usually within 48 13 hours. Gerstein, 420 U.S. at 125 ; and Cnty. of Riverside v. McLaughlin, 500 U.S. 14 44 (1991) (holding that Gerstein hearing must be provided within a reasonable 15 time after arrest, usually 48 hours). The parties agree that detaining individuals 16 past the end of their “city time” constitutes a “second detention” requiring a 17 neutral probable cause determination. (ECF No. 78 at 8; ECF No. 87 at 10). 18 Plaintiffs argue that administrative warrants and detainers from ICE do not 19 satisfy this requirement because (1) they are issued in excess of ICE’s statutory 20 authority to detain individuals; (2) they lack particularized facts supporting 21 probable cause; and, most importantly, (3) neither ICE nor LVDPS performs or 22 facilitates a neutral probable cause determination to support the “second — 23 — 24 1 Plaintiffs’ other claims are derivative of the alleged Fourth Amendment violation. Plaintiffs’ false imprisonment claim depends on detention without probable 25 cause. (ECF No. 44 at 14:9-11). And, as Plaintiffs admitted at oral argument, Plaintiffs’ Fourteenth Amendment claim derives from LVDPS and others — 26 — discouraging Plaintiffs’ family members to post bail due to the ICE detainer and 27 administrative warrant. Plaintiffs do not challenge such discouragement related to other types of detainers but do so here because Plaintiffs allege the detainers 28 do not convey probable cause. (ECF No. 44 at 13; ECF No. 92). 1 detention.” (Jan. 31, 2023 Hearing, ECF No. 92). Defendants confirm that they 2 have no process for doing a probable cause determination or validating the 3 probable cause determination made by ICE. (ECF No. 92). Defendants speculate 4 that ICE complies with Gerstein after individuals have been physically transferred 5 to ICE custody. (ECF No. 92). But, Defendants argue, there is no way to know 6 what ICE’s practices are because Plaintiffs have chosen not to make ICE a party 7 to this litigation. (ECF No. 78 at 3-8). 8 This brings the Court to the issue of joinder. While the parties debate the 9 timeliness of Defendants’ argument that ICE is a required party under Rule 19, 10 a court may sua sponte consider whether a party is required under Rule 19 and 11 this Court does so here. See Rep. of Philippines v. Pimentel, 553 U.S. 851 , 861 12 (2008) (“A court with proper jurisdiction may also consider sua sponte the 13 absence of a required person and dismiss for failure to join.”); McCowen v. 14 Jamieson, 724 F.2d 1421, 1424 (9th Cir. 1984) (“The issue is sufficiently 15 important that it can be raised at any stage of the proceedings—even sua 16 sponte.”). 17 ICE looms large in the parties’ arguments. Plaintiffs argue that ICE detainers 18 are legally invalid and deficient. Defendants argue that they need not perform an 19 independent probable cause analysis, and that their policy, which only authorizes 20 holds for 48 hours or less past the end of “city time,” does not violate the Fourth 21 Amendment. Neither party can speak to what procedures, if any, ICE follows to 22 comply with the Fourth Amendment. For the reasons explained below, this Court 23 holds that ICE is a required party to this litigation because its legal interests are 24 implicated by both Plaintiffs’ and Defendants’ arguments. 25 III. RULE 19 ANALYSIS 26 Courts perform a three-part inquiry when considering whether a party is 27 required under Federal Rule of Civil Procedure 19. Klamath Irrigation Dist. V. 28 United States Bureau of Reclamation, 48 F.4th 934 , 943 (9th Cir. 2022). First, 1 courts consider whether the absent party is required under Rule 19(a). Id. 2 Second, courts determine whether joinder of that party is feasible. Id. Third, if 3 joinder is infeasible the court must “determine whether, in equity and good 4 conscience, the action should proceed among the existing parties or should be 5 dismissed.” Id. (quoting Fed. R. Civ. P. 19(b)). Here the Court holds that ICE is a 6 required party under Rule 19(a)(1)(B)(i) because disposing of this action in ICE’s 7 absence may as a practical matter impair ICE’s ability to protect its legal 8 interests. Because joinder is feasible, this Court need not consider the third step 9 of the analysis as outlined in Klamath. 48 F.4th at 943. 10 A. Required Party 11 To determine whether ICE is a required party under Rule 19, this Court 12 considers whether ICE has a legally protected interest in this action such that 13 disposing of the action in ICE’s absence would impair or impede ICE’s ability to 14 protect that interest. Under Rule 19’s compulsory joinder analysis, a party is 15 required and must be joined if either: “(1) the court cannot accord ‘complete relief 16 among existing parties’ in the [Unnamed Party’s] absence, or (2) proceeding with 17 the suit in its absence will ‘impair or impede’ the [Unnamed Party’s] ability to 18 protect a claimed legal interest relating to the subject of the action, or ‘leave an 19 existing party subject to a substantial risk of incurring double, multiple, or 20 otherwise inconsistent obligations because of the interest.’” Alto v. Black, 738 21 F.3d 1111 , 1125-26 (9th Cir. 2013) (citing Fed. R. Civ. P. 19(a)(1)(A)-(B); Shermoen 22 v. United States, 982 F.2d 1312, 1317 (9th Cir.1992)). 23 1. ICE possesses a legally protected interest in the subject matter of this 24 suit. 25 The legal validity and effect of ICE detainers and administrative warrants is at 26 issue here. In determining whether ICE possesses a legally protected interest in 27 the subject matter of this suit, the Court must “carefully … identify [ICE’s] 28 interest at stake.” Dine Citizens Against Ruining Our Env’t v. Bureau of Indian 1 Affs., 932 F.3d 843, 852 (9th Cir. 2019) (quoting Cachil Dehe Band of Wintun 2 Indians of the Colusa Indian Cmty. V. California, 547 F.3d 962, 973 (9th Cir. 3 2008)). The Court must undertake a practical, fact specific analysis in making 4 this determination, but it is guided by categorical rules articulated by the Ninth 5 Circuit. See id. at 852 (citing White v. Univ. of Cal., 765 F.3d 1010, 1026 (9th Cir. 6 2014); Colusa, 547 F.3d at 970 ). The interest must be “more than a financial 7 stake.” Id. (citing Makah Indian Tribe v. Verity, 910 F.2d 555, 558 (9th Cir. 1990)). 8 But the interest “need not be ‘property in the sense of the due process clause.’” 9 Colusa, 547 F.3d at 970 (quoting Am. Greyhound Racing, Inc. v. Hull, 305 F.3d 10 1015, 1023 (9th Cir. 2002)). “A public entity has an interest in a lawsuit that 11 could result in the invalidation or modification of one of its ordinances, rules, 12 regulations, or practices.” E.E.O.C. v. Peabody W. Coal Co., 610 F.3d 1070 , 1082 13 (9th Cir. 2010) (citing Davis v. United States, 192 F.3d 951, 959 (10th Cir. 1999)). 14 Here, ICE has legally protected interests because Plaintiffs challenge the legal 15 validity and effect of ICE detainers. Although Plaintiffs contend that they “do not 16 seek to invalidate or modify ICE’s policies regarding detainers” (ECF No. 87 at 6), 17 Plaintiffs argue that ICE detainers are ultra vires. (ECF No. 72 at 19-23). 18 Specifically, Plaintiffs contend that the Immigration and Nationality Act (INA) 19 generally “only allows the collaboration between local law enforcement and 20 federal immigration officials when individuals are in custody for controlled 21 substance law violations. 8 USC § 1357 (d)(3).” (ECF No. 72 at 19). Plaintiffs 22 maintain that DHS exceeded its statutory authority by issuing a rule and policy 23 authorizing detainers to be issued regardless of the underlying violation. (Id. at 24 20-21, citing 8 C.F.R. 287.7(a) and Policy Statement implementing 1357(d)); see 25 also 8 U.S.C. § 1357 (d) (entitled “Detainer of aliens for violation of controlled 26 substance laws”). Because neither Garay’s nor Lopez-Jimenez’s arrests involved 27 controlled substance violations, Plaintiffs argue that “LVDPS relied on detainers 28 that are clearly invalid and ultra vires.” (ECF No. 72 at 21). 1 Plaintiffs also challenge the sufficiency of ICE detainer and administrative 2 warrants. Specifically, Plaintiffs argue that the detainers and warrants lack 3 particularity because they are based on the check-the-box forms without any 4 individualized facts;2 and maintain that Defendants have an independent 5 obligation to conduct a probable cause analysis. The Ninth Circuit in Gonzalez 6 did not address whether an ICE detainer alone or in combination with an 7 administrative warrant satisfies the Fourth Amendment. See Gonzalez, 975 F.3d 8 at 826 n.27 (noting that remand was appropriate in light of the Government 9 having “changed its immigration detainer policy to require the issuance of an 10 administrative warrant alongside any immigration detainer.”). The legal effect of 11 the detainer in combination with the warrant may determine or inform what 12 additional steps, if any, Defendants must take to ensure that their seizure of the 13 individual is lawful under the Fourth Amendment. 14 For the foregoing reasons, the Court holds that ICE has a legal interest in this 15 action because Plaintiffs’ challenge the legal validity and effect of ICE detainers 16 and administrative warrants. Under Ninth Circuit precedent, public entities like 17 ICE have an interest in a lawsuit concerning the legal validity and sufficiency of 18 its authority, detainers, and warrants. See Peabody, 610 F.3d at 1082 .3 19 2. ICE’s legal interests would be impaired in their absence. 20 The Court examines whether the existing parties would adequately represent 21 ICE’s interests in this litigation. “If a legally protected interest exists, the court 22 must further determine whether that interest will be impaired or impeded by the — 23 — 2 The detainer (Form I-247) and the administrative warrant (Form I-200) each 24 include check boxes that ICE officials use to denote issuance of the relevant form. No particularized information about the individual in question is included on 25 these forms beyond basic biographical data. 3 As the Gonzalez litigation makes evident, and as Plaintiffs have recognized, ICE — 26 — has also claimed a legal interest in whether its documents convey probable cause 27 to detain individuals. (ECF No. 72 at 19:17-19) (“ICE has argued for years that it has the authority to detain individuals and to seek holds from local law 28 enforcement agencies based on ICE’s detainer authority.”). 1 suit. Impairment may be minimized if the absent party is adequately represented 2 in the suit.” Dine Citizens, 932 F.3d 843 at 852 (quoting Makah, 910 F.2d at 558 ). 3 Courts “consider three factors in determining whether an existing party 4 adequately represents the interests of an absent party: (1) ‘whether the interests 5 of a present party to the suit are such that it will undoubtedly make all of the 6 absent party’s arguments’; (2) ‘whether the party is capable of and willing to make 7 such arguments’; and (3) ‘whether the absent party would offer any necessary 8 element to the proceedings that the present parties would neglect.’” Klamath 9 Irrigation Dist. V. United States Bureau of Reclamation, 48 F.4th 934 , 944 (9th Cir. 10 2022) (quoting Dine Citizens, 932 F.3d at 852 ). 11 Because they lack ICE’s legal and policy interests and expertise, the current 12 parties would not “undoubtedly” or as ably represent ICE’s interests on the 13 matters at issue here. Neither party here would “undoubtedly make all” of ICE’s 14 arguments. Defendants are only contesting whether they have an independent 15 obligation to conduct a neutral probable cause analysis and are ill-suited to 16 defend ICE detainers more broadly. See Abel v. United States, 362 U.S. 217 , 23017 34 (1960) (considering history of civil immigration detainers and administrative 18 warrants in the United States). Neither party appears willing to make arguments 19 on behalf of ICE. Defendants concede that they have no immigration expertise, 20 can only speculate about ICE’s practices and procedures, and are unaware of 21 ICE’s policies and procedures for determining probable cause both prior to 22 issuing the detainer and administrative warrant and after ICE takes custody of 23 an individual so detained. Defendants are not capable of making all the 24 arguments ICE would likely make if it were joined to this litigation. ICE is 25 uniquely positioned to defend the validity and legal effect of its detainers and 26 would undoubtedly offer a “necessary element to the proceedings that the present 27 parties would neglect.” Klamath, 48 F.4th at 944. 28 For the foregoing reasons, the Court concludes that ICE is a required party 1 under Rule 19(a)(1)(B)(i). 2 B. Feasibility of Joinder 3 Because ICE is a required party, the Court next evaluates if joinder is feasible. 4 “If an absentee is a necessary party under Rule 19(a), the second stage is for the 5 court to determine whether it is feasible to order that the absentee be joined. Rule 6 19(a) sets forth three circumstances in which joinder is not feasible: when venue 7 is improper, when the absentee is not subject to personal jurisdiction, and when 8 joinder would destroy subject matter jurisdiction.” Peabody 400 F.3d 774 at 779 9 (citing Tick v. Cohen, 787 F.2d 1490, 1493 (11th Cir.1986) (listing the three 10 factors that may make joinder unfeasible)). 11 As Plaintiffs admit, “Here, ICE can be joined to the present litigation because: 12 (1) venue is proper in the City of Las Vegas where the injuries took place; (2) ICE 13 is subject to personal jurisdiction under the State of Nevada; and (3) joining ICE 14 would not destroy subject matter jurisdiction. Therefore, it is feasible for ICE to 15 be joined as a party to this action.” (ECF No. 87 at 9:4-9). This Court agrees and 16 finds joinder of ICE feasible in this action. 17 IV. CONCLUSION 18 Because Rule 19 obliges this Court to join a party found to be required, Fed. 19 R. Civ. P. 19(a)(2), IT IS ORDERED THAT United States Immigration and Customs 20 Enforcement is joined as a defendant to this action. 21 IT IS FURTHER ORDERED THAT Plaintiffs are ordered to properly name as a 22 defendant United States Immigration and Customs Enforcement (“ICE”) (or 23 appropriate officials) and properly serve them within 90 days. Failure to join ICE 24 (or appropriate officials) will result in dismissal of this action without prejudice. 25 IT IS FURTHER ORDERD THAT Plaintiffs’ Motion for Summary Judgment 26 (ECF No. 71), Amended Motion for Summary Judgment (ECF No. 72), and Motion 27 to Strike (ECF No. 79) are DENIED without prejudice. 28 IT IS FURTHER ORDERED THAT Defendants’ Counter Motion for Summary 1 || Judgment (ECF No. 78) is also DENIED without prejudice. — 2 — — 3 — 4 DATED THIS 7th day of March 2023. — 5 — — 6 — 7 A os plod jd 8 UNITED STATES DISTRICT JUDGE — 9 — — 10 — — 11 — — 12 — — 13 — — 14 — — 15 — — 16 — — 17 — — 18 — — 19 — — 20 — — 21 — — 22 — — 23 — — 24 — — 25 — — 26 — — 27 — — 28 —