Puente Arizona et al v. Arpaio et al

Filing 701

ORDER - Plaintiffs' request for declaratory relief is granted. Plaintiffs' request for a permanent injunction against Maricopa County Sheriff Paul Penzone is granted. Defendant Penzone shall create a written policy for MCSO consistent wi th this permanent injunction and disseminate it within MCSO within 60 days of this order. Plaintiffs' request for injunctive relief against Defendants Montgomery and Maricopa County, and for expungement of the convictions of Plaintiffs Cervant es Arreola and Estrada Fernandez, are denied. Defendants' motion to file a non-electronic supplement (Doc. 688 ) is denied, and Plaintiffs' motion to strike (Doc. 689 ) is granted. The Clerk shall enter final judgment in accordance with this order. (See document for further details). Signed by Judge David G Campbell on 3/24/17. (LAD)

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1 WO 2 3 4 5 6 IN THE UNITED STATES DISTRICT COURT 7 FOR THE DISTRICT OF ARIZONA 8 9 Puente Arizona, et al., Plaintiffs, 10 11 ORDER v. 12 No. CV-14-01356-PHX-DGC Joseph M Arpaio, et al., 13 Defendants. 14 15 The Court previously determined that state prosecution of fraud in the I-9 process 16 is preempted by federal law. Doc. 623. Because the Court’s definition of the preempted 17 field was narrower than the field proposed by Plaintiffs in their motion for summary 18 judgment, and other issues remained regarding the appropriate remedy, the Court asked 19 the parties to file supplemental memoranda. See Docs. 654, 672, 676. The Court heard 20 oral arguments on March 9, 2017. For the reasons that follow, the Court will issue a 21 permanent injunction against Maricopa County Sheriff Paul Penzone. 22 referred to the Court’s previous decisions for relevant background information. See, e.g., 23 Puente Arizona v. Arpaio, No. CV-14-01356-PHX-DGC, 2016 WL 6873294 (D. Ariz. 24 Nov. 22, 2016). 25 I. Readers are Standing. 26 Defendants contend that Plaintiffs lack standing to pursue their claim because they 27 have not established a case or controversy related to use limitation found in 8 U.S.C. 28 § 1324a(b)(5). That section provides that the federal I-9 form used to prove a prospective 1 employee’s right to work in the United States, and any information contained in or 2 appended to the form, “may not be used” for purposes other than enforcement of the 3 federal employment verification system and prosecution under certain federal criminal 4 statutes. This use limitation was the primary statutory provision on which the Court 5 relied in finding that state prosecution of identity theft or forgery in the I-9 process is 6 preempted. Doc. 623. 7 Defendants did not contest standing in their summary judgment briefs, despite 8 arguing that federal preemption was limited to the express terms of § 1324a(b)(5). But 9 the Constitution limits the jurisdiction of the federal courts to live cases or controversies, 10 and objections to subject matter jurisdiction are not waivable. The Court therefore will 11 consider Defendants’ arguments. See Lujan v. Defs. of Wildlife, 504 U.S. 555, 559 12 (1992); Henderson ex rel. Henderson v. Shinseki, 562 U.S. 428, 434-35 (2011). 13 The Court determined at the preliminary injunction stage that Plaintiffs had 14 standing to bring this suit. Puente Arizona v. Arpaio, 76 F. Supp. 3d 833, 845-53 (D. 15 Ariz. 2015). Standing, however, must be established by the appropriate level of proof at 16 each stage of the litigation. Lujan, 504 U.S. at 561. Although “the proof required to 17 establish standing increases as the suit proceeds, the standing inquiry remains focused on 18 whether the party invoking jurisdiction had the requisite stake in the outcome when the 19 suit was filed.” Davis v. Fed. Election Comm’n, 554 U.S. 724, 734 (2008) (citation 20 omitted). 21 Defendants argue that “now that the Court has limited the scope of a potential 22 injunction to the use limitation, none of the Plaintiffs can satisfy the constitutional 23 minimum for standing.” Doc. 672 at 6. But Defendants’ contention that Plaintiffs were 24 deprived of standing by the Court’s narrowing of the preempted field is based on a 25 misunderstanding of the standing requirement. To establish standing, “a plaintiff must 26 show (1) it has suffered an ‘injury in fact’ that is (a) concrete and particularized and 27 (b) actual or imminent, not conjectural or hypothetical; (2) the injury is fairly traceable to 28 the challenged action of the defendant; and (3) it is likely, as opposed to merely -2- 1 speculative, that the injury will be redressed by a favorable decision.” Friends of the 2 Earth, Inc. v. Laidlaw Envtl. Servs. (TOC), Inc., 528 U.S. 167, 180-81 (2000) (emphasis 3 added). A plaintiff need not prevail on the merits of its claim to establish standing; it 4 merely must show an actual injury from the “challenged action of the defendant” – the 5 conduct that the plaintiff claims to be unlawful. Even if the plaintiff ultimately fails to 6 prove the challenged conduct unlawful, it has standing to obtain that judicial decision. 7 The standing doctrine ensures that litigants “have a concrete stake” in the dispute, id. at 8 191, not that they will succeed in the dispute. Thus, the fact that Plaintiffs lost on a 9 portion of their preemption claim does not mean that they lacked standing to bring that 10 claim “when the suit was filed.” Davis, 554 U.S. at 734. Courts have made clear that “a 11 plaintiff need not prevail on the merits before he can establish his standing to sue.” 12 Prison Legal News v. Livingston, 683 F.3d 201, 212 (5th Cir. 2012). 13 Plaintiffs challenged Defendants’ application of Arizona identity theft and forgery 14 statutes to unauthorized aliens who commit fraud in obtaining employment. Doc. 191; 15 Doc. 623 at 10. The challenged action included prosecution of undocumented aliens 16 based not only on fraud committed in the I-9 process or to obtain employment, but also 17 based on “any false communication made in the employment context in order to be 18 consistent with the I-9 false identity, such as false tax forms, payroll forms, or 19 applications for employment benefits.” Id. at 14. The relevant question is whether, when 20 the case was filed, Plaintiffs could show the relevant injury from this “challenged action 21 of the defendant[s].” Friends of the Earth, 528 U.S. at 180-81. For reasons stated in its 22 earlier ruling, the Court again finds that Plaintiffs have shown sufficient injury from the 23 conduct challenged in their complaint. See Puente Arizona, 76 F. Supp. 3d at 845-53. 24 Relying on the fact that “a plaintiff must demonstrate standing separately for each 25 form of relief sought,” DaimlerChrysler Corp. v. Cuno, 547 U.S. 332, 352 (2006), 26 Defendants argue that Plaintiffs’ I-9 preemption claim, on which Plaintiffs prevailed, is 27 separate from the broader preemption claim that gave them standing. Doc. 672 at 6-10. 28 The Court does not agree. Plaintiffs made a single preemption claim in their complaint: -3- 1 “In enacting Section 1 of H.B. 2779 and Section 1 of H.B. 2745, amending A.R.S. §§ 13- 2 2008(A) and 13-2009(A), Arizona impermissibly intruded on the federal government’s 3 exclusive authority to regulate immigration, legislating in a field occupied by the federal 4 government and imposing burdens and penalties on noncitizens not authorized by and 5 contrary to federal law and policy, all in violation of the Supremacy Clause.” Doc. 191, 6 ¶ 218. The Court cannot parse this claim as Defendants suggest, finding one claim based 7 on fraud in the I-9 process and another based on other types of fraud. The fact that the 8 scope of the preempted conduct was ultimately determined to be narrower than asserted 9 in Plaintiffs’ complaint does not transform one claim into two.1 10 Defendants further contend that Plaintiffs do not have standing to seek injunctive 11 relief. Doc. 672 at 6. This argument confuses the question of whether there is a 12 justiciable case or controversy with the question of whether the evidence supports the 13 injunction Plaintiffs now request. “Whether [a plaintiff] may ultimately be entitled to the 14 requested injunctive relief is not the same question as whether [the plaintiff] has standing 15 to seek injunctive relief.” Disability Advocates, Inc. v. Paterson, 598 F. Supp. 2d 289, 16 310 (E.D.N.Y. 2009). It is true that a party attempting to establish standing to seek 17 injunctive relief must satisfy the additional burden of showing that he “is likely to suffer 18 future injury” absent the requested injunction. 19 additional burden does not change the fact that the question of standing focuses on the 20 conduct challenged in the complaint. A plaintiff has standing to seek injunctive relief if 21 he sufficiently alleges that he is likely to suffer a future injury which is fairly traceable to 22 the defendant’s challenged conduct and likely to be redressed by the injunctive relief Lyons, 461 U.S. at 105. But this 23 24 25 26 27 28 1 Defendants’ counsel emphasized during oral argument that they had always conceded that the use limitation in § 1324a(b)(5) barred application of the Arizona statutes to fraud committed in the Form I-9, leaving no case or controversy. But the fact that defendants did not contest part of Plaintiffs’ claim does not change the scope of the conduct Plaintiffs challenged – a scope broad enough to establish their standing to litigate this case. Moreover, as evidenced by the parties’ memoranda on remedies (Docs. 654, 672, 676), the parties still disagree on the scope of the use limitation and its preemptive effect. -4- 1 sought. Id. at 311. The scope of injunctive relief warranted by the evidence is a separate 2 question. Id. 3 With these clarifications in mind, the Court again finds that Plaintiffs have 4 standing. Defendants’ further arguments are unpersuasive for the reasons set forth above. 5 II. Mootness. 6 Even if Plaintiffs have standing to proceed, Defendants argue that the election of 7 new Maricopa County Sheriff Paul Penzone and the 2014 written policy change by the 8 Maricopa County Attorney’s Office (“MCAO”) render the case moot. Doc. 672 at 8 n.5. 9 The Court does not agree. 10 A. 11 “A case might become moot if subsequent events make it absolutely clear that the 12 allegedly wrongful behavior could not reasonably be expected to recur. The heavy 13 burden of persuading the court that the challenged conduct cannot reasonably be expected 14 to start up again lies with the party asserting mootness.” Friends of the Earth, 528 U.S. 15 167, 189 (internal quotation marks and citation omitted); McCormack v. Herzog, 788 16 F.3d 1017, 1024 (9th Cir. 2015). “The voluntary cessation of challenged conduct does 17 not ordinarily render a case moot because a dismissal for mootness would permit a 18 resumption of the challenged conduct as soon as the case is dismissed.” Knox v. Serv. 19 Employees Int’l Union, Local 1000, 567 U.S. 298 (2012). Voluntary cessation can moot 20 Plaintiffs’ claims, however, if Defendants can meet the “stringent standard” identified 21 above – absolute clarity that the wrongful behavior could not reasonably be expected to 22 recur. Rosebrock v. Mathis, 745 F.3d 963, 971 (9th Cir. 2014). County Attorney. 23 On September 17, 2014 – three months after Plaintiffs filed this case – County 24 Attorney Bill Montgomery formally revised the MCAO’s written policy to prohibit 25 reliance on the Form I-9 as evidence in trial or for charging purposes. Doc. 589, ¶ 74; 26 Doc. 538 at 29. Defendants allege that this policy change is permanent and entrenched 27 because MCAO promptly dismissed all pending cases based on the Form I-9 and has not 28 filed identity theft or forgery charges based on a Form I-9 in the last 2.5 years. Doc. 672 -5- 1 at 15 (citing White v. Lee, 227 F.3d 1214, 1243 (9th Cir. 2000)). They emphasize that 2 County Attorney Montgomery and his prosecutors are committed to upholding the law, 3 and assert that there “is no evidence showing that they are likely to disregard their sworn 4 duties as public officials, attorneys, prosecutors and officers of the court by charging 5 future identity theft/forgery cases in knowing violation of the Form I-9 prohibition.” Id. 6 The Court does not doubt these assertions or the County Attorney’s dedication to 7 the law, but the burden of establishing mootness is heavy. “[W]hile a statutory change is 8 usually enough to render a case moot, an executive action that is not governed by any 9 clear or codified procedures cannot moot a claim.” McCormack v. Herzog, 788 F.3d 10 1017, 1025 (9th Cir. 2015). 11 administrations. Id.; Bell v. City of Boise, 709 F.3d 890, 900 (9th Cir. 2013). While the 12 Court does not question the good faith of Defendant Montgomery’s assurances of 13 compliance, “promises to refrain from future violations, no matter how well meant, are 14 not sufficient to establish mootness.” TRW, Inc. v. F.T.C., 647 F.2d 942, 953 (9th Cir. 15 1981). Internal policies can be altered, even by successive 16 What is more, the 2014 policy only prohibits reliance on the Form I-9 itself, not on 17 documents submitted with the Form I-9. Doc. 612-12 at 49-50. The policy also prohibits 18 reliance on the Form I-9 only for trial and charging, not for other law enforcement 19 purposes. Thus, the policy does not address all of the conduct preempted by federal law. 20 The Supreme Court has made clear that a “case becomes moot only when it is impossible 21 for a court to grant any effectual relief whatever to the prevailing party.” Knox v. Serv. 22 Employees Int’l Union, Local 1000, 567 U.S. 298 (2012) (quotation marks and citation 23 omitted). Because MCAO’s 2014 policy affects only a portion of the conduct found 24 unconstitutional by this Court, a permanent injunction would provide Plaintiffs with 25 additional relief.2 26 27 2 28 As discussed below, Defendant Montgomery amended the MCAO policy shortly before the recent hearing on remedies, but this amendment also is narrower than the scope of relief granted in this case. -6- 1 B. 2 The Court also finds that election of a new sheriff does not moot this case. An 3 action against a public officer in his official capacity “does not abate” when the officer 4 ceases to hold office while the action is pending; instead, “[t]he officer’s successor is 5 automatically substituted as a party.” Fed. R. Civ. P. 25(d).3 A claim may become moot, 6 however, if “a change in parties renders the need for an injunction against alleged future 7 harm uncertain[.]” DuPree v. United States, 559 F.2d 1151, 1153 (9th Cir. 1977) (citing 8 Spomer v. Littleton, 414 U.S. 514, 522 (1974)). Sheriff. 9 Defendants rely on Spomer, a civil rights action alleging a pattern of purposeful 10 racial discrimination by former Alexander County State’s Attorney Peyton Berbling. The 11 plaintiffs brought suit against Berbling in his official capacity and sought injunctive 12 relief. Spomer, 414 U.S. at 520. The district court dismissed a portion of the claim on 13 qualified-immunity grounds. Id. The Court of Appeals reversed, and, while the case was 14 pending before the Supreme Court, Berbling’s successor (Spomer) took office and was 15 substituted in the action. Id. Noting that “there may no longer be a controversy between 16 respondents and any Alexander County State’s Attorney concerning injunctive relief to 17 be applied in futuro, [the Supreme Court] remand[ed] to the Court of Appeals for a 18 determination, in the first instance, of whether the former dispute regarding the 19 availability of injunctive relief against the State’s Attorney is now moot[.]” Id. at 522. In 20 doing so, the Court relied on the fact that the “wrongful conduct charged in the complaint 21 is personal to Berbling, despite the fact that he was also sued in his then capacity as 22 State’s Attorney.” Id. at 521. 23 After Spomer, the Ninth Circuit addressed the impact of a change in 24 administration on a court’s ability to grant relief. Hoptowit v. Spellman, 753 F.2d 779, 25 782 (9th Cir. 1985). Hoptowit did not address mootness, but considered whether a court 26 3 27 28 The Advisory Committee Note to this rule state that automatic substitution of successor officers “will apply whenever effective relief would call for corrective behavior by the one then having official status and power, rather than one who has lost that status and power through ceasing to hold office.” Fed. R. Civ. P. 25(d) advisory committee’s note. -7- 1 must make “supplemental findings of fact indicating that the new officer will continue 2 the practices of his predecessor” before granting injunctive relief. Id. The Ninth Circuit 3 concluded that such findings were not necessary if “the continuation of the dispute is a 4 reasonable inference.” Id. It further found that continuation of a dispute can reasonably 5 be inferred if the dispute is based on “institutional practices” rather than “idiosyncratic 6 abuses of the particular members of the outgoing administration.” Id. Thus, if the 7 challenged conduct in this case arises from an established policy or a recurrent practice of 8 MCSO officials, the case is not mooted by a change in sheriff. See Am. Civil Liberties 9 Union of Mississippi, Inc. v. Finch, 638 F.2d 1336, 1346 (5th Cir. 1981). 10 The Court cannot conclude that MCSO’s extensive practice of seizing and relying 11 on Form I-9s and accompanying documents is simply an “idiosyncratic abuse[] of the 12 particular members of the outgoing administration.” 13 Although many of the factual allegations in this case focused on former Sheriff Arpaio 14 and his statements, Plaintiffs also provided evidence of an established institutional policy. 15 Over a period of several years, MCSO conducted over 80 workplace raids resulting in the 16 arrest of over 800 employees. Doc. 520 at 59; Doc. 573, ¶ 80. MCSO regularly seized 17 Form I-9s and accompanying documents during these raids, and submitted these to 18 MCAO when referring cases for prosecution. Doc. 538 at 29; Doc. 573, ¶ 80; Doc. 525 19 at 12; Doc. 589 at 48. What is more, MCSO used state grant monies from the Legal 20 Arizona Workers Act (“LAWA”) to fund the salaries of a specialized unit responsible for 21 carrying out the workplace raids. Doc. 520, ¶ 52; Doc. 573, ¶ 52. Hoptowit, 753 F.2d at 782. 22 The evidence thus supports a conclusion that MCSO’s violation of the use 23 limitation in § 1324a(b)(5) was a policy or practice, not merely the result of former 24 Sheriff Arpaio’s personal conduct. Because the Court reasonably can infer that the 25 dispute will continue under Sheriff Penzone, the Court cannot find that Plaintiffs’ claims 26 against Sheriff Penzone are moot. Hoptowit, 753 F.2d at 782; see also Ciudadanos 27 Unidos De San Juan v. Hidalgo Cty. Grand Jury Comm’rs, 622 F.2d 807, 822 (5th Cir. 28 1980). This conclusion is strengthened by the general unwillingness of courts to find a -8- 1 claim moot absent a clear indication “that the allegedly wrongful behavior could not 2 reasonably be expected to recur,” Friends of the Earth, 528 U.S. 167, 189, and the fact 3 that Sheriff Penzone has provided the Court with no declaration or other evidence 4 suggesting that he intends to discontinue use of I-9 forms and related documents. 5 III. Injunctive Relief. 6 A. 7 In its previous order, the Court found that Defendants are preempted “from using 8 the Form I-9 and accompanying documents for investigations or prosecutions of 9 violations of the Arizona identity theft and forgery statutes.” Doc. 623 at 2. Reviewing 10 relevant statutory and regulatory language, legislative history, and other sources, the 11 Court found that “Congress clearly and manifestly intended to preempt . . . application of 12 the Arizona identity theft and forgery statutes to unauthorized alien fraud committed in 13 the I-9 process.” Id. at 28. The parties’ recent briefing makes clear that the Court must 14 be more precise in defining the scope of this preemption. Doc. 654. 15 Clarification of the Scope of Preemption. Congress’s most direct expression regarding the preemptive effect of the I-9 16 process is found in the use limitation of § 1324a(b)(5): 17 established by the Attorney General under this subsection [the Form I-9,] and any 18 information contained in or appended to such form, may not be used for purposes other 19 than for enforcement of this chapter and sections 1001, 1028, 1546, and 1621 of Title 20 18.” 8 U.S.C. § 1324a(b)(5); Doc. 623. The question is whether Congress intended to 21 preempt the use of items beyond those specifically mentioned in this use limitation – the 22 Form I-9 and information “contained in or appended to such form.” Plaintiffs argue that 23 Congress intended to preempt the use of “information and documents submitted by 24 workers as part of the I-9 verification process – even if not attached to the I-9 by 25 employers or if separated by law enforcement from the I-9 in the course of an 26 investigation[.]” Id. at 6. Plaintiffs also argue for a broad understanding of the word 27 “use” to include reliance on the I-9 and related documents for any law enforcement 28 purpose, not just to prove a crime in court. Id. at 12. To ensure compliance with this -9- “A form designated or 1 broadened preemptive intent, Plaintiffs would have the Court bar Defendants from even 2 possessing I-9s or related documents in their files. Doc. 654 at 17.4 3 Defendants argue that preemption is limited to the items specified in the use 4 limitation – the I-9 and documents physically attached to it. Doc. 672 at 11. Defendants 5 also argue that “use” means more than simply possessing the documents – that some 6 affirmative action is required. Id. at 13. 7 If one were to look only to the language of § 1324a(b)(5), the scope of preemption 8 could be narrowed to the Form I-9 and documents physically attached to it. The use 9 limitation refers only to the Form I-9 and “information contained in or appended to such 10 form,” and append means “to attach,” “affix” or “add as a supplement or appendix.” 11 Merriam-Webster’s Collegiate Dictionary at 56 (10th ed. 2001). But other statutory 12 provisions suggest that Congress had a broader intent. 13 Section 1 of the I-9 form requires a prospective employee to provide his or her 14 name, address, date of birth, and social security number, and to swear under penalty of 15 perjury that he or she is a citizen or national of the United States, a lawful permanent 16 resident alien, or an alien authorized to work in the United States. In section 2 of the 17 form, the employer must identify documents the employer reviewed to verify the 18 employee’s identity and work authorization. The regulations identify specific documents, 19 referred to as “List A” documents, that can be used by a prospective employee to show 20 both identity and authorization to work. 21 resident alien cards, or federal employment authorization documents. 22 documents can be used to show identity, and include items such as driver’s licenses or 23 state, federal, or school ID cards. “List C” documents can be used to show employment These include U.S. passports, permanent “List B” 24 4 25 26 27 28 Plaintiffs would provide for an exception allowing Defendants to maintain a copy of the related documents if they could show that the documents were submitted for reasons outside the I-9 process. Doc. 654 at 17. Additionally, “where a document typically used in the I-9 process was not in fact the document submitted by the employee to show identity and/or employment authorization, then MCAO may be permitted to retain a copy of the I-9 in the prosecutorial file for the sole purpose of showing that the documents do not correspond.” Id. at 17 n.11. - 10 - 1 authorization, and include social security cards and other federally- or tribally-issued 2 documents. 8 C.F.R. § 274a.2(b)(1)(v). 3 A prospective employee must show the employer either a List A document or a 4 combination of List B and List C documents. While an employer is not required to attach 5 copies of List A, B, or C documents to the Form I-9, he is required to examine them in 6 order to verify that the individual is authorized to work in the United States. The 7 employer then attests on the Form I-9 that he has made the verification. 8 U.S.C. 8 § 1324a(b)(1)(A). 9 examine, List A, B, or C documents in order to comply with the federal employment 10 Thus, prospective employees must present, and employers must verification system. 11 Section 1324a(b)(4) permits an employer to make and retain copies of any 12 documents presented by a prospective employee in the verification process, but makes 13 clear that the copies can be maintained “only . . . for the purpose of complying with” the 14 verification system. 8 U.S.C. § 1324a(b)(4); see also 8 C.F.R. § 247a.2(b)(3). There is 15 no requirement that the documents or copies be attached to the Form I-9, and, under the 16 relevant regulations, copies may “be retained with the Form I-9 or stored with the 17 employee’s records.” 8 C.F.R. § 274a.2(b)(3) (emphasis added). Thus, the statute and 18 regulations contemplate that List A, B, and C documents used to satisfy the I-9 process 19 need not be attached or appended to the I-9 form and need not be filed with the form, and 20 yet also make clear that copies retained by the employer may be used “only” for 21 employment verification. This suggests that Congress intended to protect more than the 22 I-9 and documents physically attached to it. The Court sees no logical reason why 23 Congress would prohibit state law-enforcement officers from using the Form I-9 and 24 documents physically attached to it, and yet permit them to use List A, B, and C 25 documents submitted with I-9 simply because they were never stapled to the I-9 or were 26 stored by the employer in a folder separate from the I-9. This is particularly true when 27 one considers other statutory sections. 28 - 11 - 1 Section 1324a(d) provides guidance for future variations of the federal 2 employment verification system. It makes clear that even if the Form I-9 is replaced or 3 new documentation requirements are created, the use limitation will continue to prohibit 4 use of the employment verification system for non-enumerated purposes. The statute 5 states that “[t]he system may not be used for law enforcement purposes, other than for 6 enforcement of this chapter or sections 1001, 1028, 1546, and 1621 of Title 18.” 7 8 U.S.C. § 1324(d)(2)(F); see also 8 U.S.C. § 1324(d)(2)(G) (prohibiting the use for non- 8 enumerated purposes of any new document or card designed for the federal employment 9 verification system). This suggests that Congress intended to bar the use of the 10 verification process itself, not just the I-9 and physically attached documents, in state law 11 enforcement. Additionally, § 1324(d)(2)(C) provides that “[a]ny personal information 12 utilized by the system may not be made available to Government agencies, employers, 13 and other persons except to the extent necessary to verify that an individual is not an 14 unauthorized alien.” This limitation is not restricted to information contained in or 15 appended to any specific document, but applies generally to the federal employment 16 verification system. 17 Statutes imposing criminal, civil, and immigration penalties for fraud committed 18 in the employment verification process also reflect a congressional intent to regulate 19 more than the Form I-9 and physically attached documents. For example, 18 U.S.C. 20 § 1546(a) prohibits use of false documents “prescribed by statute or regulation . . . as 21 evidence of authorized . . . employment in the United States.” As the Court noted in its 22 previous order, this refers to List A and C documents – documents that may be used to 23 show federal work authorization in the I-9 process. Doc. 623 at 15-16 (citing 8 C.F.R. 24 § 274a.2(b)(1)(v)). Likewise, 18 U.S.C. § 1546(b) provides criminal penalties for using 25 false identification documents or false attestations in the I-9 process. These criminal 26 provisions are not limited to documents attached to the Form I-9. 27 Similarly, 8 U.S.C. § 1324c(a)(4) imposes civil penalties on individuals who 28 “accept or receive or [] provide any document lawfully issued to or with respect to a - 12 - 1 person other than the possessor (including a deceased individual) for the purpose of 2 complying with section 1324a(b)” – the statute that creates the federal employment 3 verification process. Section 1324c(a)(4) also provides civil penalties for the making, 4 using, or receiving of false documents or documents issued to another person in order to 5 satisfy a requirement or receive a benefit under Chapter 12 of Title 8. These statutes 6 include no requirement that the documents be attached to a Form I-9. 7 With respect to federal immigration penalties, 8 U.S.C. § 1227(a)(3)(D)(i) 8 provides that “[a]ny alien who falsely represents, or has falsely represented, himself to be 9 a citizen of the United States for any purpose or benefit under this chapter (including 10 section 1324a of this title) or any Federal or State law is deportable.” The parallel 11 provision in 8 U.S.C. § 1182(a)(6)(C)(ii)(1) similarly states that “[a]ny alien who falsely 12 represents, or has falsely represented, himself or herself to be a citizen of the United 13 States for any purpose or benefit under this chapter (including section 1324a of this title) 14 or any other Federal or State law is inadmissible.” These provisions impose immigration 15 penalties on any fraud committed to demonstrate work authorization pursuant to the 16 federal employment verification system established in § 1324a. This includes fraud in 17 documents used to establish work authorization or identification, regardless of whether 18 they are attached to a Form I-9. 19 These statutes make clear that Congress intended to regulate more than the use of 20 the Form I-9 and physically attached documents. Congress specified that any future 21 employment verification system could not be used for local law enforcement purposes. 22 Congress imposed criminal, civil, and immigration penalties on fraud not only in the 23 Form I-9 and physically attached documents, but also in other documents used to prove 24 work authorization. The Court continues to hold the view that Congress did not intend to 25 preempt state regulation of fraud outside the federal employment verification process, as 26 stated in its summary judgment ruling. Doc. 623. But the Court concludes from the 27 provisions reviewed above that Congress’s preemptive intent was not limited to the Form 28 I-9 and physically attached documents. Congress also regulated – and intended to - 13 - 1 preempt state use of – other documents used to show employment authorization under the 2 federal system. As the Ninth Circuit has noted, “field preemption can be inferred . . . 3 where there is a regulatory framework so pervasive . . . that Congress left no room for the 4 States to supplement it.” Valle del Sol, 732 F.3d at 1023 (internal quotation and brackets 5 omitted); Laurence H. Tribe, American Constitutional Law, § 6-31, at 1206-07 (same). 6 This conclusion is supported by the legislative history of the Immigration Reform 7 and Control Act, which reflects Congress’s “[c]oncern . . . that verification information 8 could create a ‘paper trail’ resulting in the utilization of this information for the purpose 9 of apprehending undocumented aliens.” H.R. Rep. 99-682(III) (1986) at 8-9. If 10 documents presented solely to comply with the federal employment verification system 11 could be used for state law enforcement purposes so long as they were not physically 12 attached to a Form I-9, this congressional intent easily would be undermined. 13 The Court’s conclusion is also supported by recent decisions from other courts. 14 Reviewing the use limitation and several other provisions of § 1324a, the Supreme Court 15 found that “Congress has made clear . . . that any information employees submit to 16 indicate their work status ‘may not be used’ for purposes other than prosecution under 17 specified federal criminal statutes for fraud, perjury, and related conduct.” Arizona v. 18 United States, 567 U.S. 387 (2012) (citing 8 U.S.C. §§ 1324a(b)(5), (d)(2)(F)-(G)) 19 (emphasis added). The Ninth Circuit reached a similar conclusion. United States v. 20 Arizona, 641 F.3d 339, 359 (9th Cir. 2011), aff’d in part, rev’d in part and remanded 21 (reviewing 8 U.S.C. § 1324a and finding that the federal employment verification system 22 and any personal information it contains cannot be used for any non-enumerated purpose, 23 including investigating and prosecuting violations of Arizona law). 24 In summary, the Court concludes that Congress clearly and manifestly intended to 25 prohibit the use of the Form I-9, documents attached to the Form I-9, and documents 26 submitted as part of the I-9 employment verification process, whether attached to the 27 form or not, for state law enforcement purposes. Further, as the Supreme Court found in 28 Smith v. United States, 508 U.S. 223, 228 (1993), the ordinary meaning of the term “use” - 14 - 1 is “‘to employ’ or ‘to derive service from.’” Id. at 229 (quoting Astor v. Merritt, 111 U.S. 2 202, 213 (1884)); see also Black’s Law Dictionary 1681 (9th ed. 2009) (defining “use” as 3 the “application or employment of something”). The Court will adopt this ordinary 4 meaning of the word “use.” Thus, the Court holds that Defendants are preempted from 5 (a) employing or relying on (b) any documents or information (c) submitted to an 6 employer solely as part of the federal employment verification process (d) for any 7 investigative or prosecutorial purpose under the Arizona identify theft and forgery 8 statutes. As Plaintiffs concede, Defendants may use List A, B, or C documents submitted 9 in the I-9 process if they were also submitted for a purpose independent of the federal 10 employment verification system, such as to demonstrate ability to drive or as part of a 11 typical employment application. 12 B. 13 “An injunction is a drastic and extraordinary remedy, which should not be granted 14 as a matter of course.” Monsanto Co. v. Geertson Seed Farms, 561 U.S. 139, 165 (2010). 15 In order to obtain a permanent injunction, a plaintiff must satisfy four factors: “(1) that it 16 has suffered an irreparable injury; (2) that remedies available at law, such as monetary 17 damages, are inadequate to compensate for that injury; (3) that, considering the balance 18 of hardships between the plaintiff and defendant, a remedy in equity is warranted; and 19 (4) that the public interest would not be disserved by a permanent injunction.” Id. at 156- 20 57. “The decision to grant or deny permanent injunctive relief is an act of equitable 21 discretion by the district court.” eBay Inc. v. MercExchange, L.L.C., 547 U.S. 388, 391 22 (2006). 23 24 Irreparable Harm and Balance of Hardships. 1. Harm. Plaintiffs must show that they face a “present or imminent risk of likely 25 irreparable harm” in order to obtain injunctive relief. 26 Although a defendant’s voluntary cessation of challenged conduct does not ordinarily 27 render a claim concerning that conduct moot, it is “an important factor bearing on the 28 question whether a court should exercise its power to enjoin the defendant from renewing - 15 - Monsanto, 561 U.S. at 162. 1 the practice.” City of Mesquite v. Aladdin’s Castle, Inc., 455 U.S. 283, 289 (1982) 2 (noting that abandonment of challenged conduct does not deprive the court of power to 3 resolve a claim concerning the challenge case, but provides relevant information on 4 whether the court should exercise its discretion to grant injunctive relief); see also 5 Milwaukee Police Ass’n v. Jones, 192 F.3d 742, 748 (7th Cir. 1999).5 6 a. Likelihood of Harm Caused by MCAO. 7 Defendants argue that no injunction should be entered against Defendant 8 Montgomery because Plaintiffs cannot show a present or imminent risk of likely 9 irreparable harm. They note that MCAO never had a written policy directing prosecutors 10 to charge on the Form I-9, Defendant Montgomery has taken steps to ensure that MCAO 11 prosecutors do not file Form I-9 charges, Montgomery and his prosecutors have 12 “demonstrated compliance and responsiveness to this Court’s orders” and are bound by 13 sworn ethical and professional duties to uphold the law, and prosecutions are matters of 14 public record subject to public scrutiny as well as judicial oversight. Doc. 672 at 15. 15 On September 17, 2014, Defendant Montgomery issued a policy prohibiting 16 MCAO prosecutors from relying on the Form I-9 as evidence to establish any element of 17 a crime or in charging decisions, and existing cases based on the Form I-9 were 18 19 20 21 22 23 24 25 26 27 28 5 Defendants argue that Plaintiffs must also show “a cognizable danger of a recurrent violation” before the Court may grant injunctive relief. Doc. 672 at 14 (citing Fed. Election Comm’n v. Furgatch, 869 F.2d 1256, 1260 (9th Cir. 1989)) (quotation marks omitted). But this requirement, as quoted, does not appear in the cited opinion, and Furgatch was addressing whether an injunction could be issued under 2 U.S.C. § 437g (now 52 U.S.C. § 30109) in response to violations of the Federal Election Campaign Act. Id. The court noted that “in cases involving statutes which give the courts the discretion to issue injunctions on the basis of past violations, the federal courts have consistently held that the party moving for the injunction must show only that there is a ‘likelihood’ of future violations.” Furgatch, 869 F.2d at 1261. The Supreme Court has made clear that a finding of irreparable harm in the common law injunctive relief analysis requires a showing of “present or imminent risk of likely irreparable harm.” Monsanto Co. v. Geertson Seed Farms, 561 U.S. 139, 162 (2010). Thus, the Court will consider the present or future risk of irreparable harm without imposing a separate requirement of “a cognizable danger of recurrent violation.” Furgatch, 869 F.2d at 1260. - 16 - 1 dismissed. Doc. 520, ¶ 83. The policy did not address reliance on other documents 2 submitted in the I-9 process to show work authorization or identity. On March 8, 2017, 3 MCAO issued a revised policy. Doc. 683. The revised version states that, “[f]or the 4 purpose of reviewing Identity Theft and Forgery submittals, Federal I-9 Forms and 5 documents appended to the Form I-9 may not be used and/or relied upon for establishing 6 the elements of the offense and are not to be considered as admissible evidence to 7 establish a reasonable likelihood of conviction.” Doc. 683-1 at 8. As Defendants make 8 clear, the appended documents referred to in this policy are only those which are 9 “physically attached” to the Form I-9. Doc. 672 at 12. Further, the revised language 10 does not prohibit all reliance on Form I-9 and appended documents. Rather, it focuses on 11 evidentiary use and does not appear to prohibit use for other purposes such as 12 interrogating suspects or obtaining warrants or subpoenas. 13 Although the MCAO policy changes do not “address[] all of the objectionable” 14 conduct identified by the Court, White, 227 F.3d at 1243, the Court finds that Defendant 15 Montgomery has made a good faith effort to comply with the requirements of federal 16 law. This fact is highly relevant in deciding whether Plaintiffs can make the showing 17 required for injunctive relief. As one court has explained: 18 19 20 21 22 23 24 25 Cessation of the allegedly illegal conduct, though not rendering a claim moot, nevertheless may affect the ability to obtain injunctive relief, as by impacting the ability to show substantial and irreparable injury. The court retains the power to grant injunctive relief, but the moving party must still satisfy the court that injunctive relief is required. The necessary determination is that there exists some cognizable danger of recurrent violation, something more than the mere possibility which serves to keep the case alive. In a situation such as this one, in which the challenged conduct has been discontinued with a representation that at least part of the challenged conduct would be rescinded, the district court will have to determine whether injunctive relief is still appropriate, or whether only declaratory relief is available. 26 27 Milwaukee Police Ass’n v. Jones, 192 F.3d 742, 748 (7th Cir. 1999) (citations and 28 quotation marks omitted). Given Defendant Montgomery’s genuine efforts to comply - 17 - 1 with federal law, the Court cannot find that Plaintiffs face a “present or imminent risk of 2 likely irreparable harm” from I-9 related investigations or prosecutions by the MCAO. 3 Monsanto, 561 U.S. at 162. The Court will enter declaratory relief, and believes the 4 MCAO will apply that declaration in fashioning a policy that will eliminate any risk of 5 irreparable harm to Plaintiffs. 6 b. Likelihood of Harm Caused by MCSO. 7 The Court cannot reach the same conclusion with respect to the MCSO. The 8 MCSO engaged in a years’ long practice of workplace investigations in which it regularly 9 seized employment records, including Form I-9s. Doc. 623 at 12. The MCSO submitted 10 Form I-9 and other documents from the I-9 process for charging purposes. Evidence in 11 the record shows that the MCSO used the Form I-9 for investigatory purposes. See, e.g., 12 Doc. 621-16 (2012 report by MCSO regarding an interview with an employee suspected 13 of committing employment-related identity theft or forgery, during which the employee 14 was questioned about a seized Form I-9 on which he had provided a false social security 15 number); Doc. 654-2 at 13 (MCSO Sergeant Brockman identifying a seized Form I-9 16 completed by Plaintiff Cervantes Arreola). 17 Defendants do not appear to dispute this finding. Rather, they argue that the 18 practice was unique to Sheriff Arpaio. Doc. 672 at 16. Defendants note that Plaintiffs 19 brought claims only against the MCSO despite the fact that 23 different law enforcement 20 agencies submitted identity theft and forgery cases to MCAO between 2005 and 2015. 21 Id. Defendants also argue that “Plaintiffs have not shown and cannot demonstrate that 22 Sheriff Penzone will pursue the same policies and priorities” as Sheriff Arpaio. Id. 23 Defendants cite a Fifth Circuit case for the proposition that “a court may not 24 exercise its equitable discretion to grant prospective injunctive relief against the 25 successor[] [administration] without a strong factual basis apart from the mere allegations 26 of the complaint for concluding that they will continue the illegal practices of their 27 predecessors.” Am. Civil Liberties Union of Mississippi, Inc. v. Finch, 638 F.2d 1336, 28 1345 (5th Cir. 1981). The issue in Finch was whether a claim would be dismissed as - 18 - 1 moot following a change in administration. Id. It did not address whether a change in 2 administration precludes injunctive relief. What is more, Finch seems to indicate that 3 where there is a basis for finding that the “challenged activities were a matter of state 4 policy or a recurrent practice of [state] officials, rather than idiosyncratic abuses of the 5 particular members of the outgoing administration[,]” there exists a basis for concluding 6 that the challenged activities are likely to continue under the new administration. Id. at 7 1346-47. 8 Here, seizures of documents submitted in the Form I-9 process were part of the 9 sheriff’s office practice for seven years. Doc. 538 at 18-19, 28; Doc. 520, ¶ 59; Doc. 573, 10 ¶ 59. Although the workplace investigations were ultimately abandoned in late 2014, 11 over 80 such investigations were completed and resulted in the arrest of 806 employees 12 who were almost all unauthorized aliens. Id. Moreover, the investigations and document 13 seizures were carried out by MCSO employees, including a specialized unit organized to 14 investigate violations of the employer sanctions law. Doc. 520, ¶ 94; Doc. 573, ¶ 94. 15 This specialized unit was overseen by two different sergeants from the time it was created 16 in 2008 until it was disbanded in 2015. Doc. 520, ¶ 95; Doc. 573, ¶ 95. Thus, although 17 the challenged activities may have occurred under the administration of former Sheriff 18 Arpaio, there is no doubt that they were part of a wider practice of MCSO employees. 19 Moreover, MCSO submitted the highest number of employment-related identity 20 theft and forgery cases to MCAO. Doc. 623-2 at 19. According to Defendants’ expert, 21 MCSO submitted 662 such cases, while the other 22 law enforcement agencies submitted 22 a combined 692 cases. Id. 23 Even more relevant, the new sheriff has not provided any evidence regarding his 24 planned policies with respect to identity theft and forgery investigations. Given the long 25 and entrenched nature of the MCSO practice of relying on documents used in the Form I- 26 9 process and the lack of any evidence of an intended change in policy, the Court 27 concludes that Plaintiffs have satisfied the requirement for injunctive relief against the 28 MCSO. - 19 - 1 c. 2 3 Defendants argue that Plaintiffs have not shown that their harm is irreparable. Doc. 672 at 16. More specifically, Defendants argue that Plaintiffs have: 4 an adequate remedy at law for any injuries to criminal defendants resulting from any future Form I-9 charges. If a line prosecutor errantly files a charge that violates the use limitation, the state criminal court can suppress the Form I-9 evidence and/or dismiss the charge. Criminal defendants can file direct appeals or petitions for post-conviction relief. Habeas corpus petitions are also available. And defendants whose arrests or prosecutions violate clearly established law can pursue a civil claim under 42 U.S.C. § 1983. 5 6 7 8 9 10 Whether the Harm is Irreparable. Id. 11 The Court cannot conclude that a motion to suppress, or post-conviction relief, or 12 even a later action under § 1983 will redress all of the harm caused when a person is 13 arrested, indicted, and prosecuted on criminal charges. 14 F.I.G.H.T. v. Hannigan, 92 F.3d 1486 (9th Cir. 1996), the Ninth Circuit rejected the 15 argument that the availability of a defense at trial was an adequate legal remedy for a 16 violation of the Fourth Amendment. 92 F.3d at 1501. The Ninth Circuit explained: 17 “Because the Fourth Amendment establishes the right of the people to be secure in their 18 persons against unreasonable searches and seizures, however, the wrong that the Fourth 19 Amendment is designed to prevent is completed when a motorcyclist is cited without 20 probable cause.” Id. (alterations incorporated and quotation marks omitted); see also 21 Zepeda v. U.S. I.N.S., 753 F.2d 719, 727 (9th Cir. 1983). In Easyriders Freedom 22 Here, genuine harm occurs when individuals are arrested or charged with identity 23 theft or forgery based on information submitted in the federal employment authorization 24 process. Plaintiffs are further harmed when this information is used in an investigation 25 that leads to prosecution, even if that prosecution ultimately fails or is not based on 26 documents submitted in the I-9 process. 27 conviction relief simply does not remedy the harm from apprehension, arrest, and a 28 formal criminal charge. Indeed, there is generally no adequate legal remedy for an The availability of suppression or post- - 20 - 1 unconstitutional deprivation of liberty. See Seretse-Khama v. Ashcroft, 215 F. Supp. 2d 2 37, 53 & n.20 (D.D.C. 2002) (compiling cases saying the same). The Court concludes 3 that Plaintiffs have shown a likelihood of irreparable harm against Puente members. As a 4 result, the Court need not determine whether the taxpayer Plaintiffs or Puente as an 5 organization independent of its members will suffer irreparable harm. 6 2. Balance of Hardships. 7 In deciding whether to grant a permanent injunction, “courts must balance the 8 competing claims of injury and must consider the effect on each party of the granting or 9 withholding of the requested relief . . . [and] should pay particular regard for the public 10 consequences in employing the extraordinary remedy of injunction.” Winter v. Nat. Res. 11 Def. Council, Inc., 555 U.S. 7, 24 (2008) (quotation marks and citations omitted); see 12 Amoco Prod. Co. v. Vill. of Gambell, Alaska, 480 U.S. 531, 546 n.12 (1987) (finding that 13 the standards for a permanent injunction are “essentially the same” as for a preliminary 14 injunction). The Court has already concluded that Defendants’ use of the Form I-9 and 15 other documents submitted in the I-9 process to investigate and prosecute undocumented 16 aliens is preempted by federal law. 17 injunction that merely ends an unlawful practice.” Rodriguez v. Robbins, 715 F.3d 1127, 18 1145 (9th Cir. 2013). Moreover, “[i]t is clear that it would not be equitable or in the 19 public’s interest to allow the state to violate the requirements of federal law, especially 20 when there are no adequate remedies available.” 21 (quotation marks and citations omitted, alterations incorporated). The government “cannot suffer harm from an Valle del Sol, 732 F.3d at 1029 22 Although considerations of comity and federalism must factor into a court’s 23 determination of whether to grant injunctive relief, O’Shea v. Littleton, 414 U.S. 488, 499 24 (1974), comity does not prohibit a federal court from issuing an injunction affecting state 25 law enforcement matters, Hawkins v. Comparet-Cassani, 251 F.3d 1230, 1237 (9th Cir. 26 2001) (finding that a plaintiff had standing to seek an injunction of state law enforcement 27 matters where he demonstrated a likelihood of irreparable injury in the absence of such 28 relief); see also Easyriders, 92 F.3d at 1500. Rather, comity and federalism may properly - 21 - 1 be considered by ensuring that the scope of the injunctive relief is narrowly tailored to 2 address the identified harm. See Clark v. Coye, 60 F.3d 600, 603-04 (9th Cir. 1995) 3 (“Due to concerns of comity and federalism, the scope of federal injunctive relief against 4 an agency of state government must always be narrowly tailored to enforce federal 5 constitutional and statutory law only.”) 6 C. 7 As stated, injunctive relief “must be tailored to remedy the specific harm alleged. 8 An overbroad injunction is an abuse of discretion.” Lamb-Weston, 941 F.2d at 974. 9 Injunctive relief “is historically ‘designed to deter, not punish[.]’” Rondeau v. Mosinee 10 Scope of Injunction. Paper Corp., 422 U.S. 49, 62 (1975) (citation omitted). 11 Plaintiffs ask the Court to enjoin Defendants from relying in investigations or 12 prosecutions on the Form I-9 or any information or documents submitted solely in the I-9 13 verification process. Doc. 654 at 12-14, 16-17. Plaintiffs also seek the creation of a 14 state-court presumption whereby any List A, B, or C document presented in an identity 15 theft or forgery prosecution is presumed to have been submitted as part of the I-9 process 16 unless MCSO can show that the I-9 does not mention the document, or there is evidence 17 that the document was submitted for another purpose. Id. at 13. Plaintiffs ask for an 18 additional presumption that “when the charges submitted for prosecution by MCSO 19 include A.R.S. § 13-2008(A) for employment or A.R.S. § 13-2009(A)(3), and the other 20 documents in the investigation file are not of the type that would be used to ‘obtain’ or 21 ‘maintain’ employment – as opposed, for example, to selecting a tax withholding rate or 22 opting in to a direct deposit program, MCSO should be presumed to have relied on any 23 available I-9 or associated documents in its investigation.” Id. at 14. Finally, Plaintiffs 24 request that the Court require its injunction to be circulated as soon as possible to all 25 relevant personnel and be incorporated into formal written policies and regular training 26 programs of the MCSO. Id. at 14, 17. To ensure compliance, Plaintiffs ask the Court to 27 retain jurisdiction over the case for two years to provide guidance, resolve disputes, and, 28 if necessary, exercise its contempt power. Id. at 18. - 22 - 1 Plaintiffs’ proposed injunction is too broad. First, while it is correct that federal 2 and state courts have created burden shifting mechanisms in the Fourth Amendment 3 context, Plaintiffs identify no case in which a federal district court has created a 4 presumption to be applied in state court criminal cases. See, e.g., Dubner v. City & Cty. 5 of San Francisco, 266 F.3d 959, 965 (9th Cir. 2001) (cited by Plaintiffs in support of their 6 requested presumption); Reams v. City of Tucson, 701 P.2d 598, 600 (Ariz. Ct. App. 7 1985) (same). Even if the Court had such a power, its exercise in this case would 8 constitute an unnecessary intrusion into the workings of state courts. State courts are 9 fully capable of applying the preemption law established by this case. 10 Nor does the Court conclude that prolonged supervision or specified training is 11 necessary. 12 action, and concludes that such an injunction is sufficient to afford the relief to which 13 Plaintiffs are entitled. The terms of the permanent injunction will be set forth at the end 14 of this order. The Court will permanently enjoin MCSO from engaging in preempted 15 Plaintiffs ask the Court to issue injunctive relief jointly against MCSO and 16 Defendant Maricopa County. The Court has found Maricopa County to be liable for the 17 sheriff’s actions in this case. Doc. 623 at 40-41. This finding of Monell liability was 18 based solely on the sheriff’s position as a final policy maker for Maricopa County, and 19 Plaintiffs have submitted no evidence that officers or employees of Maricopa County 20 outside of the MCSO or MCAO have engaged in conduct causing Plaintiffs’ injuries. 21 Nor does it appear that the Maricopa County board has authority to control the law 22 enforcement policies or practices of the MCSO. See A.R.S §§ 11-251, 11-441(A)(1), (2); 23 Hounshell v. White, 202 P.3d 466, 471 (Ariz. Ct. App. 2008). Because injunctive relief 24 “must be tailored to remedy the specific harm alleged[,]” and Plaintiffs have not shown 25 how an injunction against Maricopa County would remedy their injury, the Court will not 26 grant injunctive relief against Maricopa County. Lamb-Weston, 941 F.2d at 974. 27 Plaintiffs do not appear to seek injunctive relief against the State of Arizona. Doc. 654. 28 - 23 - 1 IV. Expungement. 2 Plaintiffs seek expungement of the convictions of Plaintiffs Cervantes Arreola and 3 Estrada Fernandez because “their convictions involved unconstitutional applications of 4 [A.R.S. § 13-2009(A)(3)] in violation of the federal use limitations.” Doc. 654 at 19. 5 A request to expunge records of conviction is a request to “destroy or seal the 6 records of the fact of the defendant’s conviction[.]” United States v. Crowell, 374 F.3d 7 790, 792 (9th Cir. 2004). Expungement does not vacate, set aside, or otherwise affect the 8 legality of the conviction. Id. “Accordingly, expungement, without more, does not alter 9 the legality of the previous conviction and does not signify that the defendant was 10 innocent of the crime to which he pleaded guilty.” Id. (quotation marks and citation 11 omitted). 12 “Congress has not expressly granted to the federal courts a general power to 13 expunge criminal records.” Id. at 793. But the Ninth Circuit has identified “two sources 14 of authority by which courts may expunge records of criminal conviction: statutes and 15 our inherent authority.” Id. at 792. Statutory authority is not at issue here, but “federal 16 courts have inherent power to expunge criminal records when necessary to preserve basic 17 legal rights.” Shipp v. Todd, 568 F.2d 133, 134 (9th Cir. 1978) (quoting United States v. 18 McMains, 540 F.2d 387, 389 (8th Cir. 1976)). This power is “limited to expunging the 19 record of an unlawful arrest or conviction, or to correcting a clerical error.” United States 20 v. Sumner, 226 F.3d 1005, 1014 (9th Cir. 2000). Expungement constitutes “a ‘narrow, 21 extraordinary exception,’ one ‘appropriately used only in extreme circumstances.’” 22 Crowell, 374 F.3d at 796 (quoting United States v. Smith, 940 F.2d 395, 396 (9th Cir. 23 1991) (per curiam)); Shipp, 568 F.2d at 134 n.1. 24 The Ninth Circuit has made clear that a defendant “cannot use a motion for 25 expungement to make an ‘end-run’ around recognized post-conviction remedies, such as 26 habeas corpus, coram nobis, and audita querela, or others[.]” Crowell, 374 F.3d at 796. 27 As a result, a defendant “must first obtain a judgment that her conviction was unlawful” 28 before seeking expungement. Id. This rule protects foundational principles, as “[t]he - 24 - 1 expungement of an accurate record of a valid arrest and conviction necessarily disrupts 2 this balance of power and, in doing so, violates the principles of federalism upon which 3 our system of government is founded.” Sumner, 226 F.3d at 1014. 4 Plaintiffs acknowledge the Crowell rule, but argue that it does not apply here 5 because it involved a request to expunge records of a federal conviction, whereas 6 Plaintiffs seek to expunge state convictions. Doc. 680 at 12-13 & n.13-14. Plaintiffs also 7 emphasize that their request raises the issue of “the Court’s authority to expunge state 8 convictions obtained in violation of constitutional rights under § 1983[,]” while the 9 defendant in Crowell filed the motion directly in her criminal case and sought 10 expungement “based solely on procedural deficiencies at trial.” Id. at 12 & n.14. The 11 Court does not find these distinctions meaningful. First, considerations of federalism 12 counsel the Court to exercise greater caution before disturbing a state court conviction. 13 Second, the Crowell defendant, like Plaintiffs, alleged that her conviction was invalid 14 because it violated her constitutional rights, and yet the Ninth Circuit declined to grant 15 relief. Id. at 793 (alleging violations of Fourth and Sixth Amendment rights). Third, the 16 Supreme Court has unequivocally held that § 1983 is not the proper vehicle for 17 challenging the validity of a conviction. See Heck v. Humphrey, 512 U.S. 477, 482 18 (1994) (“Even a prisoner who has fully exhausted available state remedies has no cause 19 of action under § 1983 unless and until the conviction or sentence is reversed, expunged, 20 invalidated, or impugned by the grant of a writ of habeas corpus.”). 21 Citing Shipp, 568 F.2d 133, and Maurer v. Individually & as Members of Los 22 Angeles Cty. Sheriff’s Dep’t, 691 F.2d 434, 436 (9th Cir. 1982), Plaintiffs argue that there 23 is “little question” that federal courts have the power to expunge state convictions 24 obtained in violation of the Constitution in a § 1983 case. Doc. 680 at 12 & n.13. 25 Neither case supports Plaintiffs’ assertion. 26 Shipp reversed a district court dismissal of a § 1983 claim seeking a declaration of 27 invalidity and expungement of a Montana state burglary conviction. 568 F.2d at 133. 28 The district court had dismissed the action for failure to state a claim and because it found - 25 - 1 the state court clerk immune from such an action. Id. The Ninth Circuit held that the 2 district court erred because “federal courts have inherent power to expunge criminal 3 records when necessary to preserve basic legal rights[,]” and immunity for state officials 4 in the performance of judicial functions “does not extend to suits for injunctive relief.” 5 Id. at 134. The case was remanded to the district court “for a determination of the 6 question of expungement.” Id. While it does not appear that the plaintiff’s conviction 7 had previously been found invalid, the Ninth Circuit expressed no opinion as to whether 8 expungement was available. It did emphasize, however, that “[t]he power to order 9 expungement of a state arrest record is a narrow one and should be reserved for unusual 10 or extreme cases, for example, ‘where the arrest itself was an unlawful one, or where the 11 arrest represented harassing action by the police, or where the statute under which the 12 arrestee was prosecuted was itself unconstitutional.’” Id. at 134 n.1 (citation omitted). 13 Maurer is a § 1983 case in which the plaintiff sought, among other things, a 14 declaration that his arrest by California state police was invalid on federal constitutional 15 grounds and a permanent injunction prohibiting the dissemination of his arrest record. 16 691 F.2d at 435. The Ninth Circuit found that the district court had “erred in summarily 17 dismissing Maurer’s expungement action.” Id. at 437. Maurer cited Shipp for the 18 proposition that “[i]t is well settled that the federal courts have inherent equitable power 19 to order the expungement of local arrest records as an appropriate remedy in the wake of 20 police action in violation of constitutional rights.” Id. (citations and quotation marks 21 omitted). The decision addressed only records of state arrests, and said nothing about 22 expungement of state convictions. Maurer does not address whether a district court may 23 expunge state conviction records that have not previously been vacated or otherwise 24 determined invalid. 25 Plaintiffs also cite a 1967 Fifth Circuit case brought pursuant to 42 U.S.C. § 1971. 26 Doc. 768 at 12 n.13. The Fifth Circuit found that state and local officials in Selma, 27 Alabama had engaged in a pattern of baseless investigations, arrests, and prosecutions 28 intended to interfere with the voting rights of African Americans, in violation of § 1971. - 26 - 1 United States v. McLeod, 385 F.2d 734, 747 (5th Cir. 1967). Section 1971(b), now 52 2 U.S.C. § 10101(b), provides that “[n]o person, whether acting under color of law or 3 otherwise, shall intimidate, threaten, coerce, or attempt to intimidate, threaten, or coerce 4 any other person for the purpose of interfering with the right of such other person to 5 vote[.]” 6 “[u]sually when a court directs the return of fines and the reversal or expungement of 7 convictions, it is acting on direct review or sitting in habeas corpus rather than entering a 8 statutory injunction. Yet we cannot permit the similarity of the remedy sought here to 9 remedies traditionally reserved to other form of proceedings to deter us from fashioning 10 effective relief under section 1971(c).” Id. The Court emphasized that “[s]ince section 11 1971 stands as a bulwark against harassing and coercive prosecutions, federal courts 12 should construe it liberally to fulfill the protective aspect of American Federalism.” Id. at 13 748. Nothing in the opinion suggests that the court’s ability to expunge valid state 14 convictions in a civil action extends beyond claims of voter suppression brought pursuant 15 to § 1971. See also United States v. Tyler, 670 F. Supp. 2d 1346, 1348 (M.D. Fla. 2009) 16 (discussing McLeod and concluding that the expungement power may only be exercised 17 in very limited circumstances); United States v. Pichardo, No. 00 CR. 875, 2016 WL 18 4081136, at *2 (S.D.N.Y. Aug. 1, 2016) (same). In determining the proper remedy for the violation, McLeod noted that 19 Plaintiffs contend that the Court may expunge records of convictions under a 20 facially unconstitutional statute, and argue that “[w]hether the statute [under which 21 Plaintiffs were convicted] is unconstitutional in all applications or unconstitutional as 22 applied to Plaintiffs and others like them should not matter.” Doc. 538 at 42 n.11. The 23 Court disagrees. If a statute is facially unconstitutional, all convictions obtained under it 24 are by necessity unconstitutional and invalid. Post-conviction relief proceedings are 25 unnecessary. But if a statute is unconstitutional only in certain applications, only certain 26 convictions obtained under that statute will be unconstitutional and invalid. 27 determination of which convictions are unconstitutional will generally require, as it 28 would here, individual factual determinations. - 27 - The 1 This is evidenced by State v. Reynua, 807 N.W.2d 473 (Minn. Ct. App. 2011), a 2 case that addressed the same preemption issue presented here. The defendant in Reynua 3 appealed a conviction for aggravated forgery and other crimes, arguing that “federal law 4 preempts any state prosecution for conduct involving the I-9 form.” Id. at 478-79. The 5 defendant’s convictions were based on the use of a false identity to obtain a forged 6 Minnesota identification card, as well as the title certifications for two cars. Id. at 479. 7 The false identification card had been obtained during a search of the defendant’s home. 8 Id. 9 completed with a false Social Security number. Id. The I-9 was submitted as evidence at 10 trial, an act the State later conceded to be clear error. Id. The court of appeals found the 11 error harmless, however, because the I-9 was submitted only as corroborating evidence. 12 Id. The decision required a close inquiry into the charges, the evidence presented at trial, 13 and the effect of various items of evidence on the outcome of the case. A follow-up investigation led police to a Form I-9, which the defendant had 14 Reynua illustrates the kind of close record review required for a court to determine 15 whether a conviction should be set aside on as-applied preemption grounds. The parties 16 have not provided the Court with sufficient information regarding the convictions of 17 Cervantes Arreola and Estrada Fernandez to conduct such a review, nor does the Court 18 find that so close an examination of state convictions would be an appropriate exercise 19 for a federal court, particularly when Plaintiffs Cervantes Arreola and Estrada Fernandez 20 have made no efforts to have their convictions set aside in state court. 21 Plaintiffs argue that their failure to obtain invalidation of their convictions through 22 post-conviction relief is excused under Ninth Circuit precedent. 23 Doc. 538 at 43. The Supreme Court held in Heck: 24 25 26 27 28 Doc. 606 at 25; [I]n order to recover damages for allegedly unconstitutional conviction or imprisonment, or for other harm caused by actions whose unlawfulness would render a conviction or sentence invalid, a § 1983 plaintiff must prove that the conviction or sentence has been reversed on direct appeal, expunged by executive order, declared invalid by a state tribunal authorized to make such determination, or called into question by a federal court’s issuance of a writ of habeas corpus, 28 U.S.C. § 2254. - 28 - 1 512 U.S. 477, 486-87 (1994). Thus, when a judgment in favor of the plaintiff in a § 1983 2 damages suit “would necessarily imply the invalidity” of an otherwise valid conviction or 3 sentence, the court must dismiss the claim. Although Heck specifically addresses § 1983 4 suits for damages, the Supreme Court has made clear that the rule applies to § 1983 5 claims for all types of relief. See Wilkinson v. Dotson, 544 U.S. 74, 81-82 (2005) (“a 6 state prisoner’s § 1983 action is barred [under Heck] (absent prior invalidation) – no 7 matter the relief sought (damages or equitable relief), no matter the target of the 8 prisoner’s suit (state conduct leading to conviction or internal prison proceedings) – if 9 success in that action would necessarily demonstrate the invalidity of confinement or its 10 duration.”) (emphasis in original); see also Thornton v. Brown, 757 F.3d 834, 847 (9th 11 Cir. 2013).6 12 For all of these reasons, the Court concludes that Plaintiffs may not obtain 13 expungement of their previous state court convictions. 14 narrow, extraordinary exception, appropriate only in extreme circumstances. Crowell, 15 374 F.3d at 796. Plaintiffs have not shown that they are entitled to such unusual relief.7 16 V. Expungement constitutes a Supplemental Filings. 17 Defendants assert in their reply that “MCSO submitted no more than four Form I- 18 9 cases prior to 2013 and none since.” Doc. 672 at 9, 21 n.15. In support, Defendants 19 cite to a document that is not in the record. They now attempt to supplement the record 20 with non-electronic documentation to support this assertion. Docs. 687, 688. But the 21 6 22 23 24 25 26 The Ninth Circuit has held that an individual may challenge a revocation of good time credits in a § 1983 action if the individual has been released from incarceration and the opportunity to pursue habeas relief was not lost by the claimant’s own unjustified delay. Nonnette v. Small, 316 F.3d 872, 877 & n.6 (9th Cir. 2002); see also Guerrero v. Gates, 442 F.3d 697, 705 (9th Cir. 2006). But these cases emphasize that this exception to Heck “‘affects only former prisoners challenging loss of good-time credits, revocation of parole or similar matters,’ not challenges to an underlying conviction.” Id. (quoting Nonnette, 316 F.3d at 878 n.7); see also Lyall v. City of Los Angeles, 807 F.3d 1178, 1192 (9th Cir. 2015). 7 27 28 Plaintiffs may attempt to obtain relief through Ariz. R. Crim. P. 32.1(f), A.R.S. § 13-907, a writ of audita querela, or some other appropriate state-court avenue. Arizona Rule 32.1(g) allows for untimely petitions for relief if there has been a significant change in the law, and, unlike federal habeas, Rule 32.1 does not have a custody requirement. The Court, of course, expresses no opinion on the merits of such attempted. - 29 - 1 Court ordered Defendants to file their reply by December 21, 2016. Doc. 623 at 423. 2 Defendants do not offer any reason why they were unable to comply with the deadline 3 established by the Court. Moreover, even if the supplementary materials can support 4 Defendants’ assertion concerning the number of Form I-9 cases submitted by MCSO, the 5 record contains sufficient evidence to establish that MCSO had a practice of violating the 6 use limitation. The Court will deny Defendants motion to file a non-electronic form of its 7 supplementary evidence (Doc. 688) and grant Plaintiffs’ motion to strike Defendants’ 8 supplement (Doc. 689). 9 IT IS ORDERED: 10 1. Plaintiffs’ request for declaratory relief is granted. The Court declares as 11 follows: Under the Supremacy Clause of the United States Constitution and the 12 Immigration Reform and Control Act, Defendants are preempted from (a) employing or 13 relying on (b) the Form I-9 and any other documents or information (c) submitted to an 14 employer solely as part of the federal employment verification process (d) for purposes of 15 investigating or prosecuting violations of A.R.S. § 13-2002, A.R.S § 13-2008(A), or 16 A.R.S § 13-2009(A)(3). This declaration does not apply to List A, B, or C documents (as 17 identified by 8 C.F.R. § 274a.2, or any successor regulation) submitted in the I-9 process 18 if they were also submitted for a purpose independent of the federal employment 19 verification system, such as to demonstrate ability to drive or as part of a typical 20 employment application. 21 2. Plaintiffs’ request for a permanent injunction against Maricopa County 22 Sheriff Paul Penzone is granted. Defendant Penzone, as Maricopa County Sheriff, and 23 his officers, agents, servants, employees, and attorneys, and all persons acting in concert 24 with them, are permanently enjoined from (a) employing or relying on (b) the Form I-9 25 and any other documents or information (c) submitted to an employer solely as part of the 26 federal employment verification process (d) for purposes of investigating or prosecuting 27 violations of A.R.S. § 13-2002, A.R.S § 13-2008(A), or A.R.S § 13-2009(A)(3). This 28 declaration does not apply to List A, B, or C documents (as identified by - 30 - 1 8 C.F.R. § 274a.2, or any successor regulation) submitted in the I-9 process if they were 2 also submitted for a purpose independent of the federal employment verification system, 3 such as to demonstrate ability to drive or as part of a typical employment application. 4 Defendant Penzone shall create a written policy for MCSO consistent with this 5 permanent injunction and disseminate it within MCSO within 60 days of this order. 6 3. Plaintiffs’ request for injunctive relief against Defendants Montgomery and 7 Maricopa County, and for expungement of the convictions of Plaintiffs Cervantes Arreola 8 and Estrada Fernandez, are denied. 9 10 4. Defendants’ motion to file a non-electronic supplement (Doc. 688) is denied, and Plaintiffs’ motion to strike (Doc. 689) is granted. 11 5. 12 Dated this 24th day of March, 2017. The Clerk shall enter final judgment in accordance with this order. 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 - 31 -

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