Ramon v. Short

03/25/2020
DA 18-0661
Case Number: DA 18-0661
IN THE SUPREME COURT OF THE STATE OF MONTANA
2020 MT 69AGUSTIN RAMON,
Plaintiff and Appellant,
v.
DARREN SHORT, in his official capacity as
Sheriff of Lincoln County and Administrator of
Lincoln County Detention Center,
Defendant and Appellee.
APPEAL FROM: District Court of the Nineteenth Judicial District,
In and For the County of Lincoln, Cause No. DV-18-218
Honorable Matthew J. Cuffe, Presiding Judge
COUNSEL OF RECORD:
For Appellant:
Alex Rate (argued), Elizabeth K. Ehret, ACLU of Montana,
Missoula, Montana
Shahid Haque, Border Crossing Law Firm, Helena, Montana
Cody Wofsy, Spencer Amdur, ACLU Foundation, Immigrants’ Rights
Project, San Francisco, California
Omar C. Jadwat, Daniel Galindo (argued), ACLU Foundation,
Immigrants’ Rights Project, New York, New York
For Appellee:
Maureen H. Lennon (argued), MACo Defense Services, Helena, Montana
For Amicus Curiae Scholars:
James H. Goetz, Jeff Tierney, Goetz, Baldwin & Geddes, P.C.,
Bozeman, Montana
For Amicus Curiae Montana Association of Criminal Defense Lawyers:
Colin M. Stephens, Smith & Stephens, P.C., Missoula, Montana
Katherine Evans, University of Idaho College of Law, Moscow, Idaho
For Amicus Curiae United States:
Kurt G. Alme, United States Attorney, Chad C. Spraker, Assistant United
States Attorney, Helena, Montana
Joseph P. Hunt, Assistant Attorney General, William C. Peachey,
Director, Erez Reuveni, Assistant Director, Lauren Bingham, Senior
Litigation Counsel, Francesca M. Genova (argued), Trial Attorney, U.S.
Department of Justice, Washington, D.C.
Argued and Submitted: January 8, 2020
Decided: March 25, 2020
Filed:
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__________________________________________
Clerk
2
Chief Justice Mike McGrath delivered the Opinion of the Court.
¶1 Appellant Agustin Ramon (“Ramon”) appeals from a November 16, 2018
Nineteenth Judicial District Court, Lincoln County, order denying his application for
temporary restraining order and preliminary injunction. In August 2018, Ramon was
arrested on a charge of burglary and booked into the Lincoln County Detention Center
(“Detention Center”) in Libby, Montana. When Ramon attempted to post bond, the
Detention Center informed the bond company that Lincoln County Sheriff Darren Short
(“Sheriff”)1 would continue to detain Ramon, even if his bond were paid and he was
otherwise entitled to release, since the U.S. Customs and Border Protection (“Border
Patrol”) had sent the Detention Center a civil immigration detainer request under the
Immigration and Nationality Act.
¶2 We restate the following issues on appeal:
Issue One: Whether an exception to the mootness doctrine applies to a challenge
to the lawfulness of a Montana law enforcement officer detaining an individual for
a suspected violation of civil immigration law at the request of the federal
government.
Issue Two: Whether a Montana law enforcement officer carrying out a federal
detainer constitutes an arrest under Montana law.
Issue Three: Whether a Montana law enforcement officer has state law authority
to conduct a civil immigration arrest in response to a federal detainer request.
¶3 We affirm in part and reverse in part.
1
At the time of the complaint, the Sheriff of Lincoln County was Roby Rowe. However, for
the purposes of this Opinion we will maintain consistency and clarity by referring to the Sheriff
of Lincoln County as Sheriff Short, Sheriff Rowe’s successor.
3
FACTUAL AND PROCEDURAL BACKGROUND
¶4 On August 3, 2018, Ramon was arrested on a charge of burglary and booked into
the Lincoln County Detention Center. At the time of his arrest, Ramon lived in Eureka,
Montana, with his wife. Ramon’s bond was set at $25,000. The day Ramon was booked,
the Detention Center received a Form I-247A detainer request from the Border Patrol, a
division within the U.S. Department of Homeland Security (“DHS”), requesting the
Detention Center detain Ramon for up to 48 hours after he was entitled to release on his
state charges. The immigration detainer stated:
DHS HAS DETERMINED PROBABLE CAUSE THE SUBJECT IS A
REMOVABLE ALIEN. THIS DETERMINATION IS BASED ON [. . .]
Statements made by the alien to an immigration officer and/or other reliable
evidence that affirmatively indicates the alien either lacks immigration
status or notwithstanding such status is removable under U.S. Immigration
law. IT IS THEREFORE REQUESTED THAT YOU: maintain the
custody of the alien for a period NOT TO EXCEED 48 HOURS beyond the
time he/she would otherwise have been released from your custody.
¶5 Ramon’s wife paid a bail bond company to post Ramon’s bond. However, when
the bondsman attempted to post Ramon’s bond, Detention Center personnel told him that
doing so would be futile as the Sheriff was granting Border Patrol’s detainer request and
that Ramon would not be released even if he posted bond. The Detention Center jail
roster reflected as much, noting next to Ramon’s name “can bond but do not release.”
Specifically, the statement, as explained by Detention Center staff, meant that Ramon
could not be released to anyone except DHS personnel because a detainer request was
issued. Under those circumstances, the bondsman declined to post Ramon’s $25,000
bond since it would be futile.
4
¶6 Use of federal civil immigration detainers in Montana has increased in recent
years. Since 2003, approximately 543 detainers have been issued to Montana detention
facilities. During the years 2017, 2018, and 2019, there was a significant increase in
detainers in Montana with a total of 190 issued, more than doubling the previous three
years.2
¶7 As a result of Ramon’s continued detention, Ramon filed a complaint on October
30, 2018, in the Nineteenth Judicial District Court alleging that the Sheriff’s grant of the
federal civil immigration detainer violated Montana law. Along with the complaint,
Ramon filed an application for temporary restraining order (“TRO”), preliminary
injunction, and order to show cause concurrently with his complaint. In response to the
complaint, the Sheriff conceded the material facts, submitted evidence confirming that
his office holds people in response to immigration detainers (occurring “one or two times
each year”), and stated Ramon would not be released even if his family were to post bail.
¶8 After a hearing, on November 16, 2018, the District Court issued an order denying
Ramon’s complaint and application for TRO and preliminary injunction. The District
Court first ruled that Ramon’s claims were not moot and were ripe for consideration. The
District Court noted the public importance of effective judicial relief on the issue and that
such cases present difficulties in obtaining review due to the short-lived nature of
detainers, concluding that “[u]nder Defendant’s argument, the matter will never be ripe or
by the time a court can review the issue it will be moot.”
2
See Transactional Records Access Clearinghouse, Syracuse Univ., Latest Data:
Immigration Customs Enforcement Detainers – Montana (Sept. 2019),
https://perma.cc/LE64-NX6Z.
5
¶9 However, the District Court ruled against Ramon on the merits and denied his
request for preliminary injunction. The District Court concluded that under
§ 7-32-2203(3), MCA—Montana’s statute addressing who may be confined in Montana
jails—the Sheriff had authority to detain Ramon on a federal civil immigration detainer
request since it provides that the jails may be used to confine “persons committed for
contempt or upon civil process or by other authority of law.” Section 7-32-2203(3),
MCA. Ramon now appeals.3
¶10 On appeal, several amicus curiae briefs were filed. Supporting Ramon’s argument
included an amicus brief from the Montana Association of Criminal Defense Lawyers
and an amicus brief from thirty-nine legal scholars. The United States filed an amicus
brief supporting the Sheriff’s argument.
STANDARDS OF REVIEW
¶11 The interpretation of a statute is a question of law that is reviewed for correctness.
Mont. Dep’t of Revenue v. Priceline.com, Inc., 2015 MT 241, ¶ 6, 380 Mont. 352, 354
P.3d 631. Where a grant or denial of an injunction is based solely upon conclusions of
law, no discretion is involved, and we review the district court’s conclusions of law
de novo to determine whether the interpretation is correct. City of Whitefish v. Bd. of
Cnty. Comm’rs of Flathead Cnty., 2008 MT 436, ¶ 7, 347 Mont. 490, 199 P.3d 201.
3
The Sheriff moved to dismiss Ramon’s appeal as moot on the basis that Ramon was
released from jail and into the custody of DHS on February 11, 2019, after sentencing in his
case. This Court denied Appellee’s motion and directed the parties to brief the merits of
Ramon’s complaint and whether “an exception to the mootness doctrine” applied.
6
DISCUSSION
¶12 Under the Montana Constitution, “physical liberty is a fundamental right, without
which other constitutionally guaranteed rights would have little meaning.” In re C.H.,
210 Mont. 184, 201, 683 P.2d 931, 940 (1984) (citing Mont. Const. Preamble; Mont.
Const. art. II, §§ 3, 4, 17). Any deprivation of one’s physical liberty amounts to an
infringement upon the fundamental right requiring a compelling state interest sufficient to
warrant such an infringement. In re C.H., 210 Mont. at 201-02, 683 P.2d at 940.
¶13 Importantly, immigration detainers, like the Form I-247A used in this case, are
civil in nature and do not amount to a criminal detainer or warrant. “As a general rule, it
is not a crime for a removable alien to remain present in the United States,” and the
administrative removal process “is a civil, not criminal, matter.” Arizona v. United
States, 567 U.S. 387, 407, 132 S. Ct. 2492, 2505 (2012). Indeed, the statute governing
immigration in the United States, the Immigration and Nationality Act (“INA”), 8 U.S.C.
§§ 1101 through 1537, specifically provides that certain violations of the INA are
criminal offenses, while others are not. For example, it is a crime for an alien to enter the
country illegally. 8 U.S.C. § 1325(a). However, “unlike illegal entry, mere unauthorized
presence in the United States is not a crime.” Melendres v. Arpaio, 695 F.3d 990, 1000
(9th Cir. 2012); Arizona, 567 U.S. at 407, 132 S. Ct. at 2505. Accordingly, “[i]llegal
presence without more is only a civil violation of the act that subjects the individual to
possible removal.” Lunn v. Commonwealth, 477 Mass. 517, 522, 78 N.E.3d 1143, 1149
(2017) (citing 8 U.S.C. § 1227(a)(1)(B)).
7
¶14 While warrants that sometimes accompany detain requests, including Forms I-200
and I-205, are constitutionally valid in the federal immigration law enforcement context,
“such warrants are civil and administrative, and not judicial, in nature.” People ex rel.
Wells v. DeMarco, 2018 NY Slip Op. 07740, ¶ 5, 168 A.D.3d 31, 41, 88 N.Y.S.3d 518,
527 (App. Div.). These administrative warrants are “civil administrative warrants
approved by, and directed to, Federal immigration officials.” Lunn, 477 Mass. at 524
n 17, 78 N.E.3d at 1151. They do not require the authorization of a judge, and,
accordingly, they do not amount to a criminal arrest warrant or criminal detainer under
Montana law. Section 46-1-202(4), MCA (defining “arrest warrant” as “a written order
from a court”).
¶15 In this case a Form I-247A, titled “Department of Homeland Security
IMMIGRATION DETAINER – NOTICE OF ACTION,” was issued. A DHS I-247A
immigration detainer is a written request to state or local officials, asking them to
(1) “[n]otify DHS as early as practicable (at least 48 hours, if possible) before an alien is
released from their custody and (2) “[m]aintain custody of the alien for a period not to
exceed 48 hours beyond the time when he/she would otherwise have been released from
your custody to allow DHS to assume custody.” U.S. Immigration and Customs
Enforcement, Policy No. 10074.2: Issuance of Immigration Detainers by ICE
Immigration Officers (Mar. 24, 2017), available at https://perma.cc/2DAH-DTPK; See
U.S. Department of Homeland Security, Immigration Detainer – Notice of Action, DHS
Form I-247A (Mar. 24, 2017), available at https://perma.cc/8Q7M-TY8B.
8
¶16 Form I-247A states that DHS has determined that there is probable cause that the
subject of the request is a removable alien based on a standard set of four listed
determinations and requires the DHS officer to check the appropriate box indicating their
basis for probable cause for removal.4 The Form I-247A also provides that the “alien
must be served a copy of this form for the detainer to take effect.” Seemingly in
contradiction of Form I-247A’s request to hold a suspected alien for up to 48 hours
beyond the time they would otherwise be entitled to release, Form I-247A also states that
the “detainer arises from DHS authorities and should not impact decisions about the
alien’s bail, rehabilitation, parole, release, diversion, custody classification, work, quarter
assignments, or other matters.” U.S. Department of Homeland Security, Immigration
Detainer – Notice of Action, DHS Form I-247A (Mar. 24, 2017), available at
https://perma.cc/RH4C-5D8Q (emphasis added).
¶17 To be clear, federal immigration Form I-247A, by its express terms, merely
requests and does not impose any mandatory obligations on the state and local authorities
that receive the requests. Any mandate would be contrary to the anti-commandeering
principle of the Tenth Amendment of the United States Constitution. Lunn, 477 Mass. at
4
The probable cause options include: (1) “a final order of removal against the alien”; (2) “the
pendency of ongoing removal proceedings against the alien”; (3) “biometric confirmation of the
alien’s identity and a records check of federal databases that affirmatively indicate, by
themselves or in addition to other reliable information, that the alien either lacks immigration
status or notwithstanding such status is removable under U.S. immigration law”; and/or
(4) “statements made by the alien to an immigration officer and/or other reliable evidence that
affirmatively indicate the alien either lacks immigration status or notwithstanding such status is
removable under U.S. immigration law.” U.S. Department of Homeland Security, Immigration
Detainer – Notice of Action, DHS Form I-247A (Mar. 24, 2017), available at
https://perma.cc/8Q7M-TY8B. In this case, the fourth option was checked by the Border Patrol
officer.
9
526-27, 78 N.E.3d at 1152 (citing U.S. Const. amend. X). The Tenth Amendment of the
United States Constitution prohibits the federal government from compelling states to use
their resources to administer and enforce federal immigration programs. Galarza v.
Szalczyk, 745 F.3d 634, 643-44 (3d Cir. 2014) (citing New York v. United States, 505
U.S. 144, 112 S. Ct. 2408 (1992) and Printz v. United States, 521 U.S. 898, 117 S. Ct.
2365 (1997)); see also Lunn, 477 Mass. at 526-27, 78 N.E.3d at 1152.
¶18 In resolving this case, we first determine whether the public interest exception to
the mootness doctrine applies. Next, we determine whether an immigration detainer
constitutes an arrest under Montana law. Lastly, we determine whether Montana law
enforcement officers have the authority under Montana law to arrest individuals pursuant
to a federal immigration detainer request.
¶19 Issue One: Whether an exception to the mootness doctrine applies to a challenge
to the lawfulness of a Montana law enforcement officer detaining an individual for
a suspected violation of civil immigration law at the request of the federal
government.
¶20 As provided in Article VII, Section 4(1), of the Montana Constitution, jurisdiction
arises in “all civil matters and cases at law and equity.” The judicial power of Montana
courts is limited to justiciable controversies—in other words, a controversy that can be
disposed of and resolved in the courts. Greater Missoula Area Fedn. of Early Childhood
Educators v. Child Start, Inc., 2009 MT 362, ¶ 22, 353 Mont. 201, 219 P.3d 881. There
are several central concepts of justiciability, mootness being the relevant one here.
Greater Missoula, ¶ 23. Where an issue presented at the outset of the action “has ceased
to exist or is no longer ‘live,’ or if the court is unable due to an intervening event or
10
change in circumstances to grant effective relief or to restore the parties to their original
position, then the issue before the court is moot.” Gateway Opencut Mining Action Grp.
v. Bd. of Cnty. Comm'rs, 2011 MT 198, ¶ 16, 361 Mont. 398, 260 P.3d 133 (citation
omitted).
¶21 While an issue may be moot, we recognize several exceptions to the mootness
doctrine, including the public interest exception. This Court “reserves to itself the power
to examine constitutional issues that involve broad public concerns to avoid future
litigation on a point of law.” Walker v. State, 2003 MT 134, ¶ 41, 316 Mont. 103, 68
P.3d 872 (citations omitted). Accordingly, the public interest exception applies where:
(1) the case presents an issue of public importance; (2) the issue is likely to recur; and
(3) an answer to the issue will guide public officers in the performance of their duties.
Gateway Opencut, ¶ 14.
¶22 Whether a state law enforcement officer has the authority to grant federal civil
immigration detainers and deprive Montana residents of their fundamental right to liberty
based on a suspected civil violation is an issue of public importance. We have
consistently held that where questions implicate fundamental constitutional rights or
where the legal power of a public official is in question, the issue is one of public
importance. See Walker, ¶¶ 41-43 (reaching the merits of a former detainee’s challenge
to Montana State Prison disciplinary techniques, even though he had already been
released); Wier v. Lincoln Cnty. Sheriff's Dep’t, 278 Mont. 473, 475-76, 925 P.2d 1172,
1173 (1996) (excepting mootness where the inmate challenged his bail denial, even
though he had been released, since the issue implicated the constitutional right to a
11
reasonable bail); In re N.B., 190 Mont. 319, 322-23, 620 P.2d 1228, 1230 (1980)
(concluding important constitutional questions, such as the deprivation of an individual’s
liberty based on a civil involuntary commitment, were not rendered moot by patient's
release from Warm Springs mental health facility and observing that approximately 100
Montanans each year are involuntarily committed for three months of treatment and
evaluation in that facility).
¶23 This issue implicates both a fundamental constitutional right and concerns the
legal power of a public official. Article II, Section 11, of the Montana Constitution, like
the Fourth Amendment of the United States Constitution, prohibits unreasonable searches
and seizures and aims to protect the privacy and security of individuals. Whether a state
law enforcement officer can seize an individual and deprive that individual of his or her
liberty based on a federal civil immigration detainer obviously presents a question of
public importance that is relevant to both Montana law enforcement officers and
residents.
¶24 An answer will benefit Montana law enforcement officers by providing
authoritative guidance on an unsettled issue regarding their authority to detain
individuals, particularly given that there is no Montana Supreme Court ruling addressing
this issue. Obviously for individuals like Ramon, resolving whether state law
enforcement officers may grant federal civil immigration detainers and deprive them of
their liberty is significant. A resolution on this issue is also in the interest of Montana
12
taxpayers, considering the legal costs associated with challenges to local law enforcement
detainer authority, as well as the additional costs of detaining individuals in county jails.5
¶25 The issue is likely to recur. Years 2017 through 2019 saw a rise in detainers in
Montana with a total of 190, amounting to 35 percent (190 out of 543) of all detainers
issued over the 15-year period since detainers first began in 2003.6 There are three recent
cases on this issue in Montana, including this case, Valerio-Gonzales v. Jarrett,
OP 17-659, 390 Mont. 427, 410 P.3d 177 (table) (Dec. 28, 2017), and the ongoing case of
Soto-Lopez v. Jarrett, Cause No. DV-19-212X (18th Judicial Dist. Ct., Gallatin County
2019). Moreover, the mere fact that Appellees argue that their actions are lawful indicate
that they plan to continue operating under the same terms leading to this very same issue
recurring in the future and necessitating a judicial declaration as to its legality. As long
as the current ad-hoc-type agreement and policies between detention centers in Montana
and DHS remains in place, “the problems will repeat themselves.” Walker, ¶ 43. These
facts present a constitutional question of “broad public concern,” thus the importance of
this Court’s review “to avoid future litigation on a point of law.” Walker, ¶ 41.
¶26 Accordingly, the public interest exception to mootness applies here since this case
presents a question of public importance that will likely recur and whose answer will
guide public officers in the performance of their duties. But for an application of the
5
E.g. Roy v. County of Los Angeles, No. 12-cv-9012, 2018 U.S. Dist. LEXIS 27268, 2018
WL 914773 (C.D. Cal. Feb. 7, 2018) (Los Angeles County settling detainer lawsuit for
$225,000); Gomez-Maciel v. Coleman, No. 17-cv-292 (E.D. Wash.) (Spokane, Washington,
settling detainer lawsuit for $49,000).
6
See Transactional Records Access Clearinghouse, Syracuse Univ., Latest Data:
Immigration Customs Enforcement Detainers – Montana (Sept. 2019),
https://perma.cc/LE64-NX6Z.
13
exception to the mootness doctrine, these issues threaten to go unresolved due to the
transitory 48-hour period of immigration detainer requests, making full and meaningful
judicial review of the issue prior to the inmate’s release impossible.
¶27 Issue Two. Whether a Montana law enforcement officer carrying out a federal
detainer constitutes an arrest under Montana law.
¶28 In order to determine whether a state law enforcement officer has the authority to
grant a detainer request, we must first decide whether a federal detainer constitutes an
arrest under Montana law. Appellee and the United States contend, based on several
asserted arguments, that holding an individual based on a federal detainer request does
not constitute an arrest under Montana law. We disagree.
¶29 There is broad consensus around the nation that an immigration detainer
constitutes a new arrest. See, e.g. Lunn, 477 Mass. at 518, 78 N.E.3d at 1146 (holding an
immigration detainer “constitutes an arrest” under Massachusetts law); Morales v.
Chadbourne, 793 F.3d 208, 216-18 (1st Cir. 2015) (since an individual was “kept in
custody for a new purpose after she was entitled to release, she was subjected to a new
seizure for Fourth Amendment purposes—one that must be supported by a new probable
cause justification”); DeMarco, 2018 NY Slip Op. 07740, 168 A.D.3d at 40, 88 N.Y.S.3d
at 526 (same); Creedle v. Miami-Dade Cnty., 349 F. Supp. 3d 1276, 1307-08 (S.D. Fla.
2018) (same). Tellingly, neither the United States nor the Sheriff has pointed to a single
case holding that detaining an individual pursuant to an immigration detainer does not
constitute an arrest. Indeed, contrary to the United States’ position here, the United
States has, in a separate case, conceded that immigration detainers constitute an arrest.
14
See Moreno v. Napolitano, 213 F. Supp. 3d 999, 1005 (N.D. Ill. 2016) (DHS conceding
that immigration detainers constitute an arrest).
¶30 Under Montana law, an “arrest is made by an actual restraint of the person to be
arrested or by the person’s submission to the custody of the person making the arrest.”
Section 46-6-104(1), MCA. It is the “taking [of] a person into custody in the manner
authorized by law.” Section 46-1-202(3), MCA. We accord “arrest” a “broad definition
determined by whether a reasonable person, innocent of any crime, would have felt free
to walk away under the circumstances.” State v. Ellington, 2006 MT 219, ¶ 14, 333
Mont. 411, 143 P.3d 119; see also State v. Van Dort, 2003 MT 104, ¶ 14, 315 Mont. 303,
68 P.3d 728. Generally, an arrest occurs when: (1) there is a claimed “purpose to take the
person into the custody of the law”; (2) “under a real or pretended authority”; (3) “actual
or constructive seizure or detention” of a person occurs by “touching, or putting hands on
him, or by any act which indicates an intention to take him into custody and subject the
person arrested to the actual control and will of the person making the arrest”; and (4) the
arrested person is conscious of the restraint of his or her liberty. Harrer v. Montgomery
Ward & Co., 124 Mont. 295, 305, 221 P.2d 428, 433 (1950).
¶31 An immigration detainer effectuates a new restraint on an individual who
otherwise would be free to leave the custody of a local law enforcement officer. Indeed,
this Court has affirmatively held that when an individual is held for a new period of
detention for a new purpose, such action is an arrest under § 46-7-101(1), MCA. State v.
Norvell, 2019 MT 105, ¶¶ 7, 19, 395 Mont. 404, 440 P.3d 634. When Montana law
enforcement personnel honor a DHS civil immigration detainer request that they hold a
15
person for up to two days after he or she would otherwise be entitled to release from State
custody, the result is a new seizure and arrest of the individual for a new purpose.
See Lunn, 477 Mass. at 527-28, 78 N.E.3d at 1153; cf. Rodriguez v. United States, 575
U.S. 348, 352-53, 357, 135 S. Ct. 1609, 1613, 1616 (2015) (holding that prolonging an
individual’s detention for a new purpose when the person would otherwise be released
constitutes a new seizure, even if it only prolongs the detention for “seven or eight
minutes”).
¶32 In this case, the immigration detainer and the Detention Center’s actions amounted
to an arrest under Montana law. Like the facts in Norvell, the immigration detainer here
resulted in a new detention for a new purpose. New detentions as a result of an
immigration detainer meet the broad definition of an arrest, as well as the elements of an
arrest under the Harrer decision. First, in refusing to release Ramon upon his bail
bondsman’s attempt to post his bond, the Detention Center effectively took Ramon back
into custody under the claimed purpose that there was an immigration detainer request by
Border Patrol. Second, the Detention Center acted under Border Patrol’s federal
authority in detaining Ramon. Third, actual and constructive detention occurred since the
Detention Center’s statement that it would not release Ramon, even if he posted bond
indicated the Detention Center’s intention to keep Ramon in its custody against his will
when he was otherwise entitled to post bond and be released. Lastly, Ramon was
conscious of the fact that the Detention Center would not allow his release due to the
detainer request.
16
¶33 Appellee’s and the United States’ argument that a detainer is only extending the
original arrest and does not constitute a new arrest is incorrect. It is unquestionable that
an individual in Ramon’s position would not have felt free to walk away under the
circumstances. By informing Ramon’s bondsman that he would not be released upon
posting of the bond, the Sheriff kept Ramon in custody for a new purpose after he was
otherwise eligible to be released. But for the grant of the immigration detainer, a
reasonable person, innocent of any crime, would have felt free to leave upon posting
bond.
¶34 While Ramon did not actually post bond and was never released, bond postage and
actual release is not necessary to effectuate a new arrest. Denying a person held on
criminal charges the opportunity to post bail and obtain release on the basis that DHS has
issued an immigration detainer request amounts to a new arrest. Mendia v. Garcia, 768
F.3d 1009 (9th Cir. 2014); Sanchez Ochoa v. Campbell, 266 F. Supp. 3d 1237 (E.D.
Wash. 2017). All that is necessary to effectuate a new arrest under these circumstances is
an affirmative action indicating a clear commitment to post bond by the inmate and the
detention center’s refusal to grant the inmate’s release due to the immigration detainer.
See Mendia, 768 F.3d at 1013; Campbell, 266 F. Supp. 3d at 1244-45, 1250-55.
¶35 Ramon’s affirmative action indicating a clear commitment to post bond occurred
upon the arrival of the bail bondsman with the funds to post Ramon’s bail. At this time,
Ramon was entitled to release. However, the Detention Center refused to grant Ramon’s
release, even if his bond was posted. But for the Detention Center’s grant of the detainer,
Ramon would have posted his bail and been released from custody.
17
¶36 Finally, while reasonable administrative delays, where supported by substantial
evidence, are generally allowed during processing an inmate’s release, see, e.g., Berry v.
Baca, 379 F.3d 764, 771 (9th Cir. 2004), executing an immigration detainer request is not
an administrative delay; it is a further incarceration that requires the arresting officer to
“provide prompt determinations of probable cause.” Cnty. of Riverside v. McLaughlin,
500 U.S. 44, 53, 56, 111 S. Ct. 1661, 1668-70 (1991); see also Norvell, ¶¶ 7, 19 (holding
continued detention in response to a different jurisdiction’s request, “valid or not,”
constitutes a new arrest).
¶37 Issue Three: Whether a Montana law enforcement officer has state law authority
to conduct a civil immigration arrest in response to a federal detainer request.
¶38 It is a bedrock principle of federalism and our system of dual sovereignty that the
arrest authority and limitations of Montana law enforcement officers is generally
controlled by Montana law. Printz, 521 U.S. at 932-33, 117 S. Ct. at 2383 (holding that
even a federal law that “places a minimal and only a temporary burden upon state
officers” offends “the very principle of separate state sovereignty”); City of N.Y. v. United
States, 179 F.3d 29, 36 (2d Cir. 1999) (holding the outer limits of state sovereignty
“surely encompass the right to set the duties of office for state-created officials”),
cert. denied, 528 U.S. 1115, 120 S. Ct. 932 (2000); State v. Gateway Mortuaries, Inc.,
87 Mont. 225, 239, 287 P. 156, 159 (1930) (holding that the Montana Legislature has the
police power to define reasonable measures that are appropriate or necessary for public
safety). The federal government “cannot compel the States to enact or enforce a federal
18
regulatory program,” nor can it “circumvent that prohibition by conscripting the State’s
officers directly.” Printz, 521 U.S. at 935, 117 S. Ct. at 2384.7
¶39 Such principle is one that is embedded in the history of our nation, as enactments
of the early Congresses, “contain no evidence of an assumption that the Federal
Government may command the States’ executive power in the absence of a particularized
constitutional authorization”; in fact, “they contain some indication of precisely the
opposite assumption.” Printz, 521 U.S. at 909-10, 117 S. Ct. at 2372. Accordingly,
where there is an “absence of a Federal statute granting State officers the power to arrest
for a Federal offense, their authority to do so is a question of State law.” Lunn, 477
Mass. at 529, 78 N.E.3D at 1154 (citing United States v. Di Re, 332 U.S. 581, 589-90, 68
7
While we agree that DHS’s detainer policy is not a mandatory program, the policy in
conjunction with Executive Order 13,768, has similar coercive qualities as those measures found
unconstitutional in New York v. United States, 505 U.S. 144, 112 S. Ct. 2408 (1992), Printz, and
Nat’l Fed’n of Indep. Bus. v. Sebelius, 567 U.S. 519, 132 S. Ct. 2566 (2012). Indeed, the policy
walks a fine line between encouragement and coercion. C.f. New York, 505 U.S. at 175, 112
S. Ct. at 2427-28.
According to DHS policy, anytime a local officer declines a detainer request, that local
jurisdiction is then documented in the ENFORCE Alien Removal Module database. U.S.
Immigration and Customs Enforcement, Policy No. 10074.2: Issuance of Immigration Detainers
by ICE Immigration Officers (Mar. 24, 2017), available at https://perma.cc/2DAH-DTPK. This
database acts in concert with President Trump’s January 25, 2017 Executive Order 13,768 titled,
“Enhancing Public Safety in the Interior of the United States.” Exec. Order No. 13,768, 82 Fed.
Reg. 8799 (Jan. 25, 2017). The Executive Order provides that any “jurisdictions that willfully
refuse to comply with 8 U.S.C. 1373 are not eligible to receive Federal grants,” that the
“Attorney General shall take appropriate enforcement action” against such jurisdictions, and that
“the Secretary shall utilize the Declined Detainer Outcome Report . . . [to] make public a
comprehensive list of criminal actions committed by aliens and any jurisdiction that ignored or
otherwise failed to honor any detainers with respect to such aliens.”
Depending on each jurisdiction’s dependence on federal funding, such policies
promulgated by DHS and the President could constitute unconstitutional “economic
dragooning.” See NFIB, 567 U.S. at 523, 132 S. Ct. at 2574. The federal policy offers
jurisdictions a choice: either assist in the implementation of federal immigration law or face
sanctions for declining to participate. However, such attempted coercion has been found
unconstitutional as applied to two California counties. See City & Cnty. of S.F. v. Trump,
897 F.3d 1225, 1245 (9th Cir. 2018).
19
S. Ct. 222, 226 (1948) (concluding the authority of state officers to make arrests for
federal crimes, absent federal statutory instruction, is a matter of state law)); see also
Gonzales v. Peoria, 722 F.2d 468, 475 (9th Cir. 1983), overruled on other grounds,
Hodgers-Durgin v. De La Vina, 199 F.3d 1037, 1040 n.1 (9th Cir. 1999) (concluding the
INA does not preclude local law enforcement from enforcing the criminal provisions of
the Act, but state law must first grant state law enforcement officers the affirmative
authority to make arrests under those provisions).
¶40 In considering this issue, we must examine whether federal statutory law, Montana
statutory law, or Montana common law provides Montana officers with the authority to
arrest individuals for civil violations of the INA.
A. Federal Law
¶41 Consistent with the principle of state sovereignty and the Tenth Amendment of the
United States Constitution, throughout the INA, Congress largely limited the warrantless
arrest and detention authority of state and local officials to instances where such action
was authorized under state law. In fact, Congress specifically enumerated only four
“limited circumstances in which state officers may perform the functions of an
immigration officer.” Arizona, 567 U.S. at 408-09, 132 S. Ct. at 2506-07 (discussing the
four circumstances).
¶42 One circumstance occurs where there is an agreement in place between the federal
government and state government (known as “287(g) agreements”), at the expense of the
state, allowing “authorized” state officers who have “received adequate training” to
“perform a function of an immigration officer.” 8 U.S.C. § 1357(g) (appropriately titled
20
“Performance of immigration officer functions by State officers and employees”). A
second circumstance occurs during “an actual or imminent mass influx of aliens arriving”
that “presents urgent circumstances requiring immediate Federal response.” 8 U.S.C.
§ 1103(a)(10). Even under the mass influx circumstance, authorization of “any State or
local law enforcement officer” to perform the functions of an immigration officer may
only occur “with the consent of the head of the department, agency, or establishment
under whose jurisdiction the individual is serving . . . .” 8 U.S.C. § 1103(a)(10). A third
circumstance occurs where a state officer may perform the civil arrest and detention
functions of an immigration officer when a convicted felon illegally reenters the United
States. 8 U.S.C. § 1252c. However, even under this circumstance, the INA defers to the
state, providing that such action is allowed “to the extent permitted by relevant State and
local law.” 8 U.S.C. § 1252c(a). Lastly, the fourth circumstance allows “all other
officers whose duty it is to enforce criminal laws” to arrest individuals for violations of
the INA’s criminal prohibitions against smuggling, transporting, or harboring aliens.
8 U.S.C. § 1324. None of these circumstances apply here, as there is no consent or
agreement under 8 U.S.C. § 1357(g) between the federal government and Montana and
the requisite factors of §§ 1103, 1252c, and 1324 are not present.
¶43 Outside of the special parameters prescribed in §§ 1103, 1252c, and 1324, even
where a 287(g) agreement is in place between the federal and state governments, arrest
power is contingent on training of the state officers. Arizona, 567 U.S. at 409, 132 S. Ct.
at 2506. DHS’s own regulation provides that only those “immigration officers who have
successfully completed basic immigration law enforcement training are hereby
21
authorized and designated to exercise the arrest power” of § 1357(a)(2) of the INA.
8 CFR § 287.5(c); Arizona, 567 U.S. at 409, 132 S. Ct. at 2506 (discussing that
“agreements reached with the Attorney General must contain written certification that
officers have received adequate training to carry out the duties of an immigration
officer,” citing to 8 U.S.C. § 1357(g)(2), 8 CFR § 287.5(c)).
¶44 Appellee’s and the United States’ theory that an arrest of an individual for a civil
violation of the INA is lawful cooperation is incorrect. They argue that even without
formal 287(g) agreements in place between the state and federal government, local
jurisdictions may, upon the request of the federal government, arrest an alien for being
removable under 8 U.S.C. § 1357(g)(10). That provision provides:
(10) Nothing in this subsection shall be construed to require an agreement
under this subsection in order for any officer or employee of a State or
political subdivision of a State . . . (A) to communicate with the Attorney
General regarding the immigration status of any individual, including
reporting knowledge that a particular alien is not lawfully present in the
United States; or (B) otherwise to cooperate with the Attorney General in
the identification, apprehension, detention, or removal of aliens not
lawfully present in the United States.”
8 U.S.C. § 1357(g)(10).
¶45 Appellees’ theory would essentially render the purpose of 287(g) agreements
meaningless. If performing the arrest authority of an immigration officer, which arguably
is the highest authority granted to an immigration officer, can be done on an ad hoc basis
by state and local officers, regardless of state and local law, there would be no need for
states to enter into 287(g) agreements. Such a theory is incorrect. In the limited
circumstances “where the act affirmatively grants authority to State and local officers to
22
arrest, it does so in more explicit terms than those in § 1357(g)(10).” Lunn, 477 Mass. at
536, 78 N.E.3d at 1159 (citing 8 U.S.C. §§ 1103(a)(10), 1252c, 1324(c), 1357(g)(1)-(9)).
¶46 When read in the context of the INA and § 1357(g) as a whole, the provision
“simply makes clear that State and local authorities . . . may continue to cooperate with
Federal immigration officers in immigration enforcement to the extent they are
authorized to do so by their State law and choose to do so.” Lunn, 477 Mass. at 535-36,
78 N.E.3d at 1159. While “[t]here may be some ambiguity as to what constitutes
cooperation under the federal law . . . Congress has put in place a system in which state
officers may not make warrantless arrests of aliens based on possible removability except
in specific, limited circumstances.” Arizona, 567 U.S. at 410, 132 S. Ct. at 2507
(emphasis added) (listing examples of what constitutes cooperation under 8 U.S.C.
§ 1357(g)(10), none of which include a grant of an immigration officer’s arrest
authority).8 Clearly, as explained in Arizona, general civil arrest authority of state
officers hinges on 287(g) agreements, but “no formal agreement or special training needs
to be in place for state officers to ‘communicate with the [Federal Government] regarding
the immigration status of any individual . . . .” 567 U.S. at 411-12, 132 S. Ct. at 2508.
B. Montana Statutory Law
¶47 Since the INA generally defers to state law regarding the authority of state law
enforcement officers to make warrantless arrests, as required by foundational principles
8
Examples of cooperation include “responding to requests for information about when an
alien will be released from [state] custody” and “situations where States participate in a joint task
force with federal officers, provide operational support in executing a warrant, or allow federal
officials to gain access to detainees held in state facilities.” Arizona, 567 U.S. 410, 132 S. Ct. at
2507(citing DHS guidance materials).
23
of state sovereignty, we now turn to whether Montana statute provides such authority. In
determining legislative intent, “an express mention of a certain power or authority
implies the exclusion of nondescribed powers.” In re M.P.M., 1999 MT 78, ¶ 23, 294
Mont. 87, 976 P.2d 988. Montana statutes exhaustively regulate the violations officers
can arrest for, and in what circumstances. They do not provide authority for warrantless
civil immigration arrests.
¶48 Only in very limited circumstances do Montana statutes authorize warrantless
arrests for civil violations. Montana’s general warrantless arrest statute authorizes arrests
only for “offense[s],” § 46-6-311(1), MCA, which are defined as “violation[s] of any
penal statute,” § 46-1-202(15), MCA (emphasis added). As defined in Title 46 of the
MCA, “offense” does not include violations that are “civil in nature.” See State v.
Boulton, 2006 MT 170, ¶ 16, 332 Mont. 538, 140 P.3d 482; § 46-1-202(15), MCA.
Rightly so, warrantless arrests for civil violations are rare. See, e.g. § 53-21-129, MCA
(emergency mental health arrests); § 53-24-107, MCA (public intoxication); § 10-1-611,
MCA (military arrests). Other civil arrests require judicial authorization. Sections
3-1-511 to -515, MCA (civil contempt of court requiring a judicial order); § 25-14-102,
MCA (arrest authority for absconding debtor). Section 27-16-101, MCA, specifically
provides that “[n]o person may be arrested before judgment in a civil action except as
prescribed by this chapter.” Nowhere in Title 27, chapter 16, MCA—“Arrest and Bail in
Civil Actions”—is law enforcement granted arrest authority for a civil immigration
violation. See § 27-16-102, MCA.
24
¶49 While warrantless arrests for civil violations are tightly regulated by Montana
statute, the District Court, as well as the Appellee and the United States, incorrectly relied
on § 7-32-2203, MCA, to provide the Detention Center with state law authority to arrest
Ramon. Specifically, the District Court held, and Appellee and the United States argue,
that subsection 3 of § 7-32-2203, MCA, defining who may be confined in a detention
center, provides the authority. Section 7-32-2203(3), MCA, states that detention centers
are used “for the confinement of persons committed for contempt or upon civil process or
by other authority of law.” Appellee, and the United States, assert that since immigration
enforcement is a civil process, § 7-32-2203(3), MCA, authorizes local jails to cooperate
with federal immigration authorities.
¶50 Section 7-32-2203, MCA, is not an arrest statute and does not confer any arrest
authority. As made clear by the title of § 2203, “Who may be confined in a detention
center,” the section does not provide arrest authority; rather, it concerns who can be
housed in a detention center after they have been validly “committed,” “sentenced,” or
“charged with a crime and committed for trial.”9 Section 7-32-2203, MCA.
¶51 Likewise, a detention center “means a facility established and maintained by an
appropriate entity for the purpose of confining arrested persons or persons sentenced to
the detention center.” Section 7-32-2241, MCA (emphasis added). It is clear that
§ 2203, and the entirety of Title 7, chapter 32, part 22, MCA—“Detention Centers”—
describes the operational requirements of detention centers and is not an independent
9
The MCA uses the term “detention centers” to mean county jails. See City of Hardin v.
State, 2008 Mont. Dist. LEXIS 171, *3.
25
source of arrest authority. See Creedle, 349 F. Supp. 3d at 1307 (holding that a similar
Florida statute did not provide an independent source of authority for local law
enforcement to arrest individuals for civil immigration violations).
¶52 The theory of lawful cooperation between local law enforcement and DHS to
make civil immigration arrests under Montana law is misguided. Tellingly, the
Legislature has taken several actions related to increasing cooperation between local and
federal officials regarding immigration enforcement, yet none authorize civil immigration
arrests. See § 1-1-411(3), MCA, invalidated by Mont. Immigration Justice All. v.
Bullock, 2016 MT 104, ¶¶ 45-46, 383 Mont. 318, 371 P.3d 430 (invalidated statute
instructed state agencies to notify DHS of any illegal alien applying for a state service);
§ 61-5-147(1), MCA (allowing for communication with DHS regarding threat assessment
analysis in hazardous material transport licensing decisions); § 46-6-210(2), MCA
(authorizing a felony warrant arrest that was issued in another jurisdiction); § 46-30-301,
MCA (authorizing warrantless extradition arrests for individuals accused of “a crime
punishable by death or imprisonment for a term of 1 year or more”); § 46-31-101, MCA
(authority to execute criminal detainers). The Legislature has specifically authorized
DHS officers to conduct arrests for state crimes, § 46-6-412, MCA, yet it has not done
the inverse for state officers.
¶53 Montana statutory law does not, either directly or indirectly, authorize the arrest of
individuals based solely on a federal civil immigration detainer.
26
C. Montana Common Law
¶54 Montana common law does not provide local law enforcement with the authority
to make civil immigration arrests. First, it is an established principle that “there is no
common law in any case where the law is declared by statute.” Section 1-1-108, MCA.
The “statutes establish the law of this state respecting the subjects to which they relate.”
Section 1-2-103, MCA. As discussed above, the Legislature has codified criminal and
civil arrest authority and cooperation with extraterritorial jurisdictions. A law
enforcement officer’s “right to arrest without a warrant . . . is vested in him by law, only
under circumstances defined in [statute] and if the circumstances do not exist, thus
bringing into activity the authority of law, he has no power to make the arrest.” State v.
Bradshaw, 53 Mont. 96, 98, 161 P. 710, 711 (1916). Accordingly, since the Legislature
has already regulated the area in question, contrary to the United States’ argument, there
is no Montana common law authority for civil immigration arrests.10
CONCLUSION
¶55 The District Court correctly determined that the matter was not moot since the
public interest exception applies. That ruling is affirmed. However, the District Court’s
holding that § 7-32-2203(3), MCA, provided the Sheriff with the authority to arrest
Ramon for a suspected civil immigration violation on the basis of the Border Patrol’s
detainer request was incorrect. With the exception of the limited circumstances
10
Contrary to the United States’ argument here asserting that there is a common law civil
arrest authority, in a recent case in Massachusetts, the United States asserted that “the INA
supersedes all common law, that immigration law preempts state law, and that the federal
government has the sole authority to control immigration.” Ryan v. United States Immigration &
Customs Enf’t, 382 F. Supp. 3d 142, 158 (D. Mass. 2019).
27
discussed, neither federal law nor Montana law provide state or local Montana law
enforcement officers with the authority to arrest individuals based on federal civil
immigration violations.
¶56 Affirmed in part and reversed in part.
/S/ MIKE McGRATH
We Concur:
/S/ BETH BAKER
/S/ JIM RICE
/S/ JAMES JEREMIAH SHEA
/S/ LAURIE McKINNON
/S/ INGRID GUSTAFSON
/S/ DIRK M. SANDEFUR
Justice Jim Rice, concurring.
¶57 While the subject detentive cooperation with federal authorities by the County
Sheriff may have been authorized under the common law as it existed years ago, I am
persuaded that the Legislature’s enactment of statutes governing the particulars of arrest,
particularly civil arrest, Opinion, ¶¶ 50, 54, has covered this issue, and that the law is
“now declared by statute” to be as the Court holds. Opinion, ¶ 54; § 1-1-108, MCA;
State v. Berdahl, 2017 MT 26, ¶ 14, 386 Mont. 281, 389 P.3d 254. That does not mean,
and this decision addressing detention under DHS I-247A immigration detainers does not
hold, that sheriffs are barred from any and all cooperation with federal authorities, such
as communication between the agencies about detainees and their detention status, or
cooperation in other arrest contexts.
28
¶58 I concur.
/S/ JIM RICE
Justice Dirk Sandefur and Justice James Jeremiah Shea join in the concurring Opinion of
Justice Rice.
/S/ DIRK M. SANDEFUR
/S/ JAMES JEREMIAH SHEA
29