Manuel De Jesus Ortega Melendr v. Joseph M. Arpaio ( 2012 )

FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
MANUEL DE JESUS ORTEGA 
MELENDRES; JESSICA QUITUGUA
RODRIGUEZ; DAVID RODRIGUEZ;
VELIA MERAZ; MANUEL NIETO, Jr.; No. 12-15098
SOMOS AMERICA,
Plaintiffs-Appellees,  D.C. No.
2:07-cv-02513-GMS
v. OPINION
JOSEPH M. ARPAIO; MARICOPA
COUNTY SHERIFF’S OFFICE,
Defendants-Appellants.

Appeal from the United States District Court
for the District of Arizona
G. Murray Snow, District Judge, Presiding
Argued and Submitted
September 13, 2012—San Francisco, California
Filed September 25, 2012
Before: J. Clifford Wallace, Susan P. Graber, and
Marsha S. Berzon, Circuit Judges.
Opinion by Judge Wallace
11941
11944 ORTEGA MELENDRES v. ARPAIO
COUNSEL
Timothy J. Casey (argued) and James L. Williams, Schmitt,
Schneck, Smyth, Casey & Even, P.C., Phoenix, Arizona, for
the defendants-appellants.
Thomas P. Liddy, Maricopa County Attorney’s Officer, Phoe-
nix, Arizona, for the defendants-appellants.
Anne Lai (argued), Jerome N. Frank Legal Services Organiza-
tion, New Haven, Connecticut, for the plaintiffs-appellees.
Stanley Young and Andrew C. Byrnes, Covington & Burling
LLP, Redwood Shores, California, for the plaintiffs-appellees.
ORTEGA MELENDRES v. ARPAIO 11945
Tammy Albarran and David R. Hults, Covington & Burling
LLP, San Francisco, California, for the plaintiffs-appellees.
Lesli Gallagher, Covington & Burling LLP, San Diego, Cali-
fornia, for the plaintiffs-appellees.
Cecillia D. Wang, ACLU Foundation Immigrants’ Rights
Project, San Francisco, California, for the plaintiffs-appellees.
Nancy Ramirez, Mexican American Legal and Educational
Fund, Los Angeles, California, for the plaintiffs-appellees.
Dan Pochoda and James Lyall, ACLU Foundation of Arizona,
Phoenix, Arizona, for the plaintiffs-appellees.
Andre I. Segura, ACLU Foundation Immigrants’ Rights Proj-
ect, New York, New York, for the plaintiffs-appellees.
OPINION
WALLACE, Senior Circuit Judge:
Sheriff Joseph M. Arpaio and the Maricopa County Sher-
iff’s Office (collectively, the Defendants) appeal from the dis-
trict court’s December 23, 2011 order (Order), which granted
Manuel de Jesus Ortega Melendres, David and Jessica Rodri-
guez, Manuel Nieto, Jr., Velia Meraz, the organization Somos
America, and the class of individuals the named plaintiffs rep-
resent (collectively, the Plaintiffs) “partial injunctive relief”
prohibiting the Defendants from detaining any individual
“based only on knowledge or reasonable belief, without more,
that the person is unlawfully present within the United
States.” We have jurisdiction to review the district court’s
order under 28 U.S.C. § 1292(a)(1), and we affirm.
I.
The Plaintiffs contend that the Defendants have a “custom,
policy and practice of racial profiling toward Latino persons
11946 ORTEGA MELENDRES v. ARPAIO
in Maricopa County and an unconstitutional policy and prac-
tice of stopping Latino drivers and passengers pretextually
and without individualized suspicion or cause, and of subject-
ing them to different, burdensome, stigmatizing and injurious
treatment once stopped,” under the auspices of enforcing fed-
eral immigration laws and/or Arizona state immigration-
related laws. In particular, the Plaintiffs allege that, since Sep-
tember 2007, the Defendants and persons under their control
have conducted racially discriminatory traffic stops and
launched “crime suppression sweeps,” also known as “satura-
tion patrols,” targeting Latinos as part of their immigration
enforcement plan.
It is alleged that the Defendants have, for some time,
sought to enforce immigration-related laws. In 2006, as part
of a “crackdown” against illegal immigration, the Defendants
allegedly entered into an agreement with the United States
Immigration and Customs Enforcement (ICE) agency
whereby a number of the Defendants were cross-certified to
enforce federal civil immigration laws under section 287(g) of
the Immigration and Nationality Act (Act). See 8 U.S.C.
§ 1357(g) (providing for the enforcement of civil immigration
laws by local law enforcement agencies where the United
States Attorney General enters into a written agreement with
local officials). In 2009, however, ICE modified its agreement
with the Defendants such that the Defendants’ deputies no
longer had Act section 287(g) authority to enforce civil immi-
gration laws except in jails. The Plaintiffs allege that the
Defendants racially profiled Latinos in their immigration
enforcement program both before and after ICE modified its
agreement with the Defendants.
Each of the five named plaintiffs was stopped by defendant
officers during one of three traffic incidents. The named indi-
vidual plaintiffs, each of whom is of “Latino descent and, by
physical appearance, [a] person[ ] of color,” alleged that they
were stopped, detained, searched, and/or questioned by
Defendant officers pursuant to the Defendants’ policy or cus-
ORTEGA MELENDRES v. ARPAIO 11947
tom of racially profiling Latinos during traffic stops. Somos
America, a membership organization, has likewise alleged
that under the Defendants’ immigration enforcement program,
its members have been “unlawfully targeted, stopped, ques-
tioned and/or detained by” defendant officers because of their
race. The named plaintiffs further alleged that, just as they
have been harmed, similarly situated Latino individuals “have
been or will be in the future, stopped, detained, questioned or
searched by [the Defendants’] agents while driving or sitting
in a vehicle on a public roadway or parking area in Maricopa
County, Arizona.”
The Plaintiffs filed this putative class civil rights action
alleging that the Defendants’ racially discriminatory policy
violates the Fourth and Fourteenth Amendments to the United
States Constitution, Article II, section 8 of the Arizona Con-
stitution, and Title VI of the Civil Rights Act of 1964. The
Plaintiffs sought declaratory and injunctive relief to prevent
the Defendants from engaging in unlawful racial profiling and
other “racially motivated treatment” of the plaintiff class.
After discovery, the parties filed competing motions for
summary judgment. For their part, the Plaintiffs moved for
partial summary judgment on their Fourteenth Amendment
claim, contending that undisputed evidence established that
the Defendants racially profiled Latinos when conducting
their crime-suppression sweeps in response to racially
charged citizen requests. At the summary judgment hearing,
they also moved for summary judgment on Ortega Melen-
dres’s Fourth Amendment claim that the Defendants may not
detain a person based solely on suspicion about that person’s
unlawful immigration status. The Plaintiffs concurrently
sought certification of a class composed of “[a]ll Latino per-
sons who, since January 2007, have been or will be in the
future stopped, detained, questioned or searched by [the
Defendants’] agents while driving or sitting in a vehicle on a
public roadway or parking area in Maricopa County, Arizo-
na.”
11948 ORTEGA MELENDRES v. ARPAIO
The Defendants filed a competing motion for summary
judgment, challenging the Plaintiffs’ standing to seek declara-
tory and injunctive relief. The Defendants also sought sum-
mary judgment on the Plaintiffs’ Fourth Amendment claims,
arguing that the traffic stops of the named plaintiffs were
based on probable cause. Finally, the Defendants argued that
undisputed evidence established that the Defendants do not
engage in racial profiling and that the Plaintiffs’ Fourteenth
Amendment and Title VI claims must fail.
In ruling on the competing summary judgment motions, the
district court held that the Plaintiffs had standing to pursue
equitable relief on their Fourth Amendment, Fourteenth
Amendment, and Title VI claims. The district court likewise
certified the Plaintiffs’ proposed class. The court then granted
the Plaintiffs’ motion for partial summary judgment on their
Fourth Amendment claims and entered a preliminary injunc-
tion barring the Defendants from detaining an individual
based solely on reasonable suspicion or knowledge that the
individual is unlawfully present in the country. Finally, the
district court granted the Defendants’ motion for summary
judgment as to two named plaintiffs, but denied their remain-
ing motions and ordered that trial proceed on the Plaintiffs’
Fourth Amendment, Fourteenth Amendment, and Title VI
claims. The trial has been held, but the district court has not
yet issued a post-trial decision or final judgment.
II.
On appeal of the district court’s decision granting “partial
injunctive relief,” the Defendants ask us to address a number
of issues, including the district court’s: determination that the
Plaintiffs have standing to pursue injunctive relief on Fourth
Amendment grounds; statements of Fourth Amendment law;
decision to certify the plaintiff class; description of Arizona
Revised Statutes section 13-2929; and conclusion that the
Plaintiffs have standing to pursue their Fourteenth Amend-
ment and Title VI claims.
ORTEGA MELENDRES v. ARPAIO 11949
While the Defendants raise a number of issues in this
appeal, we emphasize that we have before us only an order
granting “partial injunctive relief.” Although the Defendants
attempt to style this appeal as one from permanent injunctive
relief, the district court has not entered final judgment in this
case. Indeed, the trial has only recently concluded and final
judgment remains on the horizon. Additionally, there is noth-
ing in the Order purporting to provide a permanent remedy.
Thus, we treat the Order as granting only preliminary injunc-
tive relief. As a result, our task on this appeal is to determine
whether the district court’s partial, preliminary injunctive
relief was appropriate—a limited form of review. See Zepeda
v. INS, 753 F.2d 719, 724 (9th Cir. 1983). Thus, except with
respect to those issues that we identify below, we need not
perform the searching review that the Defendants invite us to
undertake, as such review should be had only after the district
court enters a final judgment.
III.
We turn first to the extent of our jurisdiction to hear this
appeal. While we unquestionably have jurisdiction to hear an
interlocutory appeal of the district court’s preliminary injunc-
tion, see 28 U.S.C. § 1292(a)(1), we may also exercise pen-
dent appellate jurisdiction over any “otherwise non-
appealable ruling [that] is ‘inextricably intertwined’ with or
‘necessary to ensure meaningful review of’ the order properly
before us on interlocutory appeal,” Meredith v. Oregon, 321
F.3d 807, 813 (9th Cir. 2003), as amended, 326 F.3d 1030(9th Cir. 2003), quoting Swint v. Chambers Cnty. Comm’n,
514 U.S. 35, 51 (1995). We have explained that “[d]istrict
court rulings are ‘inextricably intertwined’ with a preliminary
injunction when ‘the legal theories on which the issues
advance [are] . . . so intertwined that we must decide the pen-
dent issue in order to review the claims properly raised on
interlocutory appeal, or . . . resolution of the issue properly
raised on interlocutory appeal necessarily resolves the pen-
dent issue.’ ” Hendricks v. Bank of Am., N.A., 408 F.3d 1127,
11950 ORTEGA MELENDRES v. ARPAIO
1134 (9th Cir. 2005), quoting Meredith, 321 F.3d at 814. We
have also construed “necessary to ensure meaningful review”
narrowly to require “much more than a tangential relationship
to the decision properly before us on interlocutory appeal.”
Poulos v. Caesars World, Inc., 379 F.3d 654, 669 (9th Cir.
2004). Thus, we have explained that an issue is “necessary to
ensure meaningful review” where the issue “calls into ques-
tion the district court’s ‘authority to rule on a party’s motion
for a preliminary injunction.’ ” Hendricks, 408 F.3d at 1134,
quoting Meredith, 321 F.3d at 816.
Based on the above, we have exercised jurisdiction to
review issues related to sovereign and qualified immunity,
subject matter jurisdiction, and abstention. See Meredith, 321
F.3d at 816. Indeed, “the common thread” running through
our decisions to exercise our pendent jurisdiction “to ensure
meaningful review” is that pendent jurisdiction is appropriate
to review those issues that implicate “the very power the dis-
trict court used to issue the rulings then under consideration.”
Hendricks, 408 F.3d at 1134-35 (internal quotation marks
omitted).
We have emphasized, however, that we “should exercise
restraint in reviewing on interlocutory appeal otherwise non-
appealable [issues].” Meredith, 321 F.3d at 812. With this
consideration in mind, we are convinced that “meaningful
review” of this limited preliminary injunction at issue here
necessitates that we address only two otherwise non-
appealable pendent issues related to the district court’s author-
ity to enter class-wide injunctive relief: (1) whether the Plain-
tiffs lacked standing to pursue the Fourth-Amendment-related
injunction the district court ultimately ordered; and (2)
whether the district court erroneously certified the plaintiff
class. We address each in turn.
A.
First, whether the Plaintiffs had standing to pursue an
injunction on Fourth Amendment grounds plainly bears on the
ORTEGA MELENDRES v. ARPAIO 11951
authority of the district court to enter injunctive relief on those
grounds. See City of Los Angeles v. Cnty. of Kern, 581 F.3d
841, 845 (9th Cir. 2009) (explaining that Article III’s standing
requirements are jurisdictional). Accordingly, a review of the
Plaintiffs’ Fourth Amendment standing is “necessary to
ensure meaningful review” of the district court’s Fourth-
Amendment-related injunction. Because the injunction relates
only to the Fourth Amendment, however, we will not exercise
our pendent jurisdiction to review the Defendants’ additional
argument that the Plaintiffs lacked standing to bring their
Fourteenth Amendment and Title VI claims.
The Defendants argue that the Plaintiffs lack standing to
pursue their Fourth Amendment claims because “[n]one of the
named Plaintiffs can demonstrate a ‘credible’ and ‘genuine’
threat of future traffic stop interaction with the [Defendants],
or any likely future harm by the [Defendants]. The named
Plaintiffs [thus] lack the standing to seek equitable relief
because ‘it is not sufficiently likely that [Plaintiffs] will again
[be] stopped by the [Defendants].’ ” (Quoting Hodgers-
Durgin v. de la Vina, 199 F.3d 1037, 1044 (1999) (en banc)).
[1] “Although questions of standing are reviewed de novo,
we will affirm a district court’s ruling on standing when the
court has determined that the alleged threatened injury is suf-
ficiently likely to occur, unless that determination is clearly
erroneous or incorrect as a matter of law.” Mayfield v. United
States, 599 F.3d 964, 970 (9th Cir.), cert. denied, 131 S. Ct.
503 (2010); see also Armstrong v. Davis, 275 F.3d 849, 861
(9th Cir. 2001), abrogated on other grounds by Johnson v.
California, 543 U.S. 499, 504-05 (2005). To have standing to
assert a claim for prospective injunctive relief, a plaintiff must
demonstrate “that he is realistically threatened by a repetition
of [the violation].” City of Los Angeles v. Lyons, 461 U.S. 95,
109 (1983). We have “enumerated two ways in which a plain-
tiff can demonstrate that such injury is likely to recur.” May-
field, 599 F.3d at 971. “First, a plaintiff may show that the
defendant had, at the time of the injury, a written policy, and
11952 ORTEGA MELENDRES v. ARPAIO
that the injury ‘stems from’ that policy.” Armstrong, 275 F.3d
at 861. “Second, the plaintiff may demonstrate that the harm
is part of a ‘pattern of officially sanctioned . . . behavior, vio-
lative of the plaintiffs’ [federal] rights.’ ” Id. (alterations in
original), quoting LaDuke v. Nelson, 762 F.2d 1318, 1323
(9th Cir. 1985).
[2] Here, the district court expressly found that the Plain-
tiffs “are sufficiently likely to be seized in violation of the
Fourth Amendment.” That finding rests on the Defendants’
express claim of “authority to detain persons [they believe]
are not authorized to be in the country . . . . ‘based only upon
a reasonable suspicion, without more, that the person is not
legally present within the United States.’ ” The Plaintiffs also
presented evidence that the Defendants have engaged in a pat-
tern or practice of conducting traffic stops as part of “satura-
tion patrols” or “sweeps” targeting Latinos suspected of being
illegally present in the country. Exposure to this policy while
going about one’s daily life, the district court determined,
constitutes “ongoing harm and evidence that there is ‘suffi-
cient likelihood’ that the Plaintiffs’ rights will be violated
again.” The district court specifically found that the Defen-
dants had a policy and practice of violating the Plaintiffs’
Fourth Amendment rights. Thus, although it held that the like-
lihood of a future stop of a particular individual plaintiff may
not be “high,” we are not convinced that the district court
erred in determining that future injury was nevertheless “suf-
ficiently likely” given the Defendants’ stated policy and prac-
tice. See Mayfield, 599 F.3d at 970-71 (looking to the
government’s policy and pattern of officially sanctioned
unlawful behavior to determine standing); see also Lyons, 461
U.S. at 106 (explaining that a victim of police misconduct
could seek an injunction where the government “ordered or
authorized police officers” to enforce an unconstitutional pol-
icy).
Further, while standing is not appropriate where a plaintiff
can avoid injury by avoiding illegal conduct, see Armstrong,
ORTEGA MELENDRES v. ARPAIO 11953
275 F.3d at 865, the Defendants are incorrect that the Plain-
tiffs may avoid being detained by simply avoiding criminal
activity. Indeed, the Defendants alleged that they have author-
ity to detain “individuals based only on reasonable suspicion
or probable cause that a person is not authorized to be in the
United States.” Because, as will be explained in greater detail
below, mere unlawful presence in our country is not a crime,
see Arizona v. United States, 132 S. Ct. 2492, 2505 (2012),
even if the Plaintiffs comply with all criminal laws enforce-
able by the Defendants, under the Defendants’ view of the
Fourth Amendment, the Plaintiffs remain vulnerable to
unlawful detention solely because an officer has reasonable
suspicion or knowledge that they are not authorized to be
present in the United States. Nor are we persuaded by the
Defendants’ assertion that the Plaintiffs can avoid the claimed
injury merely by obeying all traffic laws. Some Plaintiffs
were only passengers in vehicles that the Defendants stopped;
there is no claim that those passengers disobeyed traffic laws.
Plaintiff-drivers fare no better because the Defendants could
initiate a stop with probable cause that a traffic violation had
occurred—whether or not the Plaintiff-drivers had actually
committed a traffic infraction—and then proceed to detain the
Plaintiff-drivers based solely on reasonable suspicion as to the
legality of their presence in the United States. Indeed, one
Plaintiff-driver was released after detention without being
issued any traffic citation. Thus, even as to the Plaintiff-
drivers, adherence to traffic laws fails to assure that they
would not face future injury.
[3] In sum, we conclude that the district court did not
clearly err in finding that the threatened constitutional injury
was likely to occur again, and thus, there was no error in the
determination that the Plaintiffs had standing to pursue equita-
ble relief as to their Fourth Amendment claims.
We need not address whether Somos America, an organiza-
tion, met the requirements for associational standing. “The
general rule applicable to federal court suits with multiple
11954 ORTEGA MELENDRES v. ARPAIO
plaintiffs is that once the court determines that one of the
plaintiffs has standing, it need not decide the standing of the
others.” Leonard v. Clark, 12 F.3d 885, 888 (9th Cir. 1993).
B.
We next turn to the Defendants’ claims that we should
exercise our pendent jurisdiction to review the district court’s
decision to certify the plaintiff class. We agree that whether
the class was appropriately certified bears on our ability to
review the class-wide injunction in this interlocutory appeal.
As we have explained before, where an injunction provides
class-wide relief, “effective review of the injunction requires
review of the class certification.” Paige v. California, 102
F.3d 1035, 1039 (9th Cir. 1996).
[4] But the Defendants do not challenge the district court’s
class certification itself; rather, they contend that certification
of the class must be reversed and remanded because (1) the
district court erroneously concluded that the Defendants may
not detain persons based only on a reasonable suspicion that
they may be unlawfully present in the United States, and (2)
the district court erred in holding that the Plaintiffs have
standing to seek injunctive relief. We address the former
claim as we consider the preliminary injunction below. As to
the latter claim, we have already concluded that the district
court correctly determined that the Plaintiffs had Fourth
Amendment standing. Thus, while class certification may be
appropriately reviewed under a pendent jurisdiction theory,
we need not go into any greater detail at this time as to the
district court’s class-certification analysis. In any event, as the
district court recognized, class certification is subject to
amendment at any time before final judgment. Accordingly,
complete review of the class certification order is best had
once a final judgment has been entered.
[5] Mindful of the restraint that we must exercise in deter-
mining the scope of our pendent jurisdiction, we conclude that
ORTEGA MELENDRES v. ARPAIO 11955
no other issue the Defendants raise in this interlocutory appeal
is “inextricably intertwined with” or “necessary to ensure
meaningful review” of the preliminary injunction decision.
IV.
We turn now to our consideration of the preliminary
injunction issued by the district court. We review a district
court’s preliminary injunction for an abuse of discretion. Far-
ris v. Seabrook, 677 F.3d 858, 864 (9th Cir. 2012). “ ‘Under
this standard, [a]s long as the district court got the law right,
it will not be reversed simply because the appellate court
would have arrived at a different result if it had applied the
law to the facts of the case.’ ” Thalheimer v. City of San
Diego, 645 F.3d 1109, 1115 (9th Cir. 2011) (alteration in
original), quoting Dominguez v. Schwarzenegger, 596 F.3d
1087, 1092 (9th Cir. 2010).
[6] To obtain a preliminary injunction, a plaintiff “must
establish that he is likely to succeed on the merits, that he is
likely to suffer irreparable harm in the absence of preliminary
relief, that the balance of equities tips in his favor, and that an
injunction is in the public interest.” Winter v. Natural Res.
Def. Council, Inc., 555 U.S. 7, 20 (2008); see also Stormans,
Inc. v. Selecky, 586 F.3d 1109, 1126-27 (9th Cir. 2009) (aban-
doning the prior preliminary injunction test and applying Win-
ter). The district court’s Order granted “the certified class . . .
partial injunctive relief enjoining [the] Defendants from
detaining any person based solely on knowledge, without
more, that the person is in the country without lawful authori-
ty.” We now determine whether, under the Winter factors, the
district court abused its discretion entering this preliminary
injunction prohibiting the Defendants from detaining individ-
uals solely because they are unlawfully present in the United
States.
A.
We first conclude that the Plaintiffs were likely to succeed
on their claim that without more, the Fourth Amendment does
11956 ORTEGA MELENDRES v. ARPAIO
not permit a stop or detention based solely on unlawful pres-
ence. Absent probable cause to arrest, a law enforcement offi-
cer may conduct an investigatory stop “when [that] police
officer reasonably suspects that the person apprehended is
committing or has committed a crime.” Arizona v. Johnson,
555 U.S. 323, 326 (2009). The Supreme Court has explained
that the investigatory-stop standard is met in the traffic-stop
setting “whenever it is lawful for police to detain an automo-
bile and its occupants pending inquiry into a vehicular viola-
tion.” Id. at 327. Nevertheless, a detention beyond the
duration of the initial traffic stop must be supported indepen-
dently by reasonable suspicion of criminality. Id. at 333; see
also United States v. Mendez, 476 F.3d 1077, 1080-81 (9th
Cir. 2007). Accordingly, possible criminality is key to any
Terry investigatory stop or prolonged detention. See Terry v.
Ohio, 392 U.S. 1, 30 (1968). Absent suspicion that a “suspect
is engaged in, or is about to engage in, criminal activity,” law
enforcement may not stop or detain an individual. United
States v. Sandoval, 390 F.3d 1077, 1080 (9th Cir. 2004).
We have long made clear that, unlike illegal entry, mere
unauthorized presence in the United States is not a crime. See
Martinez-Medina v. Holder, 673 F.3d 1029, 1036 (9th Cir.
2011) (“Nor is there any other federal criminal statute making
unlawful presence in the United States, alone, a federal crime,
although an alien’s willful failure to register his presence in
the United States when required to do so is a crime, and other
criminal statutes may be applicable in a particular circum-
stance.” (citation omitted)); Gonzales v. City of Peoria, 722
F.2d 468, 476-77 (9th Cir. 1983) (explaining that illegal pres-
ence is “only a civil violation”), overruled on other grounds
by Hodgers-Durgin, 199 F.3d 1037. The Supreme Court
recently affirmed that, “[a]s a general rule, it is not a crime for
a removable alien to remain present in the United States.” Ari-
zona v. United States, 132 S. Ct. at 2505.
Here, the district court enjoined the Defendants from
detaining individuals based solely on reasonable suspicion or
ORTEGA MELENDRES v. ARPAIO 11957
knowledge that a person was unlawfully present in the United
States. The Defendants acknowledge that, although they pre-
viously had authority under section 287(g) of the Act to
enforce federal civil immigration law, they no longer have
authority to do so except in the jail context. Accordingly, if
the Defendants are to enforce immigration-related laws, they
must enforce only immigration-related laws that are criminal
in nature, which they are permitted to do even without section
287(g) authority. See Gonzales, 722 F.2d at 475 (holding that
“federal law does not preclude local enforcement of the crimi-
nal provisions” of federal immigration law). That enforcement
must be consistent with the Fourth Amendment requirement
that a Terry investigative stop be premised on criminality.
Thus, because mere unauthorized presence is not a criminal
matter, suspicion of unauthorized presence alone does not
give rise to an inference that criminal activity is “afoot.”
Terry, 392 U.S. at 30. Although we have recognized that “ille-
gal presence may be some indication of illegal entry,”
Martinez-Medina, 673 F.3d at 1035 (internal quotation marks
omitted), unlawful presence need not result from illegal entry.
For example, an individual may have entered the country law-
fully, but overstayed his or her visa. See Gonzales, 722 F.2d
at 476. In any event, nothing in Martinez-Medina suggests
that presence alone is sufficient to justify a stop by the Defen-
dants’ officers who are not empowered to enforce civil immi-
gration violations.
[7] While the seizures of the named plaintiffs based on
traffic violations may have been supported by reasonable sus-
picion, any extension of their detention must be supported by
additional suspicion of criminality. Unlawful presence is not
criminal. Nor does illegal presence, without more, give rise to
reasonable suspicion of violation of Arizona’s human smug-
gling statute, Ariz. Rev. Stat. § 13-2319, as the Defendants
maintain. That statute provides: “It is unlawful for a person to
intentionally engage in the smuggling of human beings for
profit or commercial purpose.” Id. § 13-2319(A). It defines
“smuggling of human beings” as:
11958 ORTEGA MELENDRES v. ARPAIO
the transportation, procurement of transportation or
use of property or real property by a person or an
entity that knows or has reason to know that the per-
son or persons transported or to be transported are
not United States citizens, permanent resident aliens
or persons otherwise lawfully in this state or have
attempted to enter, entered or remained in the United
States in violation of law.
Id. § 13-2319(F)(3). Absent any reason to suspect a profit or
commercial purpose, the unlawful presence in the country of
one person in an automobile, without more, does not give rise
to reasonable suspicion that the driver or occupants are violat-
ing the human smuggling statute.1 We therefore conclude that
the Plaintiffs were likely to succeed on the merits of the
Fourth Amendment argument that the Defendants may not
detain individuals solely because of unlawful presence.
The Defendants assert that the district court’s Fourth
Amendment injunction rests on incorrect conclusions of law:
that the district court employed an “all-the-elements” test
and/or used a “divide-and-conquer” strategy in concluding
that its injunction was appropriate. The district court, how-
ever, expressly identified the correct “totality of the circum-
stances” test in its Fourth Amendment analysis when arriving
at its preliminary injunction decision. Indeed, the district court
explained that “[i]f the totality of the circumstances do[es] not
provide reasonable suspicion that a person is about to commit
or is committing a crime, then [the Defendants’ officers] can-
not stop the person.” To the extent that portions of the district
court’s reasoning leading up to the preliminary injunction
could be read to suggest that the district court departed from
the well-established “totality of the circumstances” test, we
emphasize that we are reviewing only the content of the pre-
liminary injunction itself, not the reasoning that led to it.
Under that narrow review, we are convinced that the district
1
The validity of section 13-2319 is not challenged in this litigation.
ORTEGA MELENDRES v. ARPAIO 11959
court did not abuse its discretion in determining likely success
on the merits.
B.
[8] We now turn to the next part of the preliminary injunc-
tion test: irreparable harm. It is well established that the depri-
vation of constitutional rights “unquestionably constitutes
irreparable injury.” Elrod v. Burns, 427 U.S. 347, 373 (1976).
The Defendants’ representations during the summary judg-
ment hearing, reasonably interpreted, demonstrate that the
Defendants operated under the impression that they have
authority to detain individuals solely because of their immi-
gration status—a purely civil matter. From those representa-
tions, it was reasonable for the district court to conclude that
the Plaintiffs faced a real possibility that they would again be
stopped or detained and subjected to unlawful detention on
the basis of their unlawful presence alone. Accordingly, there
was no abuse of discretion in concluding that the Plaintiffs
faced irreparable harm in the form of a deprivation of consti-
tutional rights absent a preliminary injunction.
C.
[9] Furthermore, there was no abuse of discretion in the
district court’s determination that the equities favor issuance
of a narrow, limited preliminary injunction. The Defendants
have not established that they will be harmed if this injunction
is permitted to stand while the district court reaches a final
judgment on the merits. The Defendants repeatedly repre-
sented during oral argument—in contradiction to their repre-
sentations to the district court during the summary judgment
hearing—that they do not detain individuals based only on
immigration status, nor do they desire to do so. The Defen-
dants cannot be harmed by an order enjoining an action they
will not take. Further, the district court’s injunction is very
narrow and does “not enjoin[ ] [the Defendants] from enforc-
ing valid state laws, or detaining individuals when officers
11960 ORTEGA MELENDRES v. ARPAIO
have reasonable suspicion that individuals are violating a state
criminal law.” Thus, the Defendants’ ability to enforce local
and even federal criminal law is not impaired by the injunc-
tion. Accordingly, we conclude that the district court did not
abuse its discretion in concluding that the balance of equities
tip in the Plaintiffs’ favor.
D.
[10] Likewise, the Defendants make no argument that an
injunction is not in the public interest. We agreed in Sammar-
tano v. First Judicial District Court, 303 F.3d 959 (9th Cir.
2002), that “ ‘it is always in the public interest to prevent the
violation of a party’s constitutional rights.’ ” Id. at 974, quot-
ing G & V Lounge, Inc. v. Mich. Liquor Control Comm’n, 23
F.3d 1071, 1079 (6th Cir. 1994).
[11] In sum, we hold that the district court did not abuse
its discretion in granting preliminary injunctive relief.
V.
We applaud how the district court has expedited this sensi-
tive case and moved with appropriate speed towards a final
disposition. We have long
emphasize[d] the ways in which review of an order
granting or denying a preliminary injunction differs
from review of an order involving a permanent
injunction because we are persuaded that in some
cases, parties appeal orders granting or denying
motions for preliminary injunctions in order to ascer-
tain the views of the appellate court on the merits of
the litigation. Because of the limited scope of our
review of the law applied by the district court and
because the fully developed factual record may be
materially different from that initially before the dis-
trict court, our disposition of appeals from most pre-
ORTEGA MELENDRES v. ARPAIO 11961
liminary injunctions may provide little guidance as
to the appropriate disposition on the merits. Further-
more, in many cases, appeal of district courts’ pre-
liminary injunctions will result in unnecessary delay
to the parties and inefficient use of judicial
resources. We think it likely that this case, for
instance, could have proceeded to a disposition on
the merits in far less time than it took to process this
appeal. Furthermore, our disposition of this appeal
will affect the rights of the parties only until the dis-
trict court renders judgment on the merits of the
case, at which time the losing party may again
appeal.
Sports Form, Inc. v. United Press Int’l, Inc, 686 F.2d 750, 753
(9th Cir. 1982). Here, it appears that the district court heeded
our direction to proceed to trial and otherwise move towards
a final judgment in this case without waiting for our interlocu-
tory review. As a result, final judgment is now imminent and
we need only exercise very limited review at this time. If
there is an appeal from the trial court’s final judgment, this
panel will retain jurisdiction to hear any subsequent appeal.
At that point, we may appropriately consider the broader
claims that the Defendants raise in this appeal, if necessary.
AFFIRMED.