Antonio Lopez-Aguilar v. State of Indiana

• Court: Court of Appeals for the Seventh Circuit
• Decided: May 9, 2019
• Docket: 18-1050
• Status: Published

Opinion

In the

United States Court of Appeals For the Seventh Circuit ____________________ No. 18-1050 ANTONIO LOPEZ-AGUILAR, Plaintiff-Appellee, v.

MARION COUNTY SHERIFF’S DEPARTMENT, et al., Defendants-Appellees.

APPEAL OF: STATE OF INDIANA, Proposed Intervenor. ____________________

Appeal from the United States District Court for the Southern District of Indiana, Indianapolis Division. No. 1:16-cv-02457-SEB-TAB — Sarah Evans Barker, Judge. ____________________

ARGUED SEPTEMBER 7, 2018 — DECIDED MAY 9, 2019 ____________________

Before FLAUM, RIPPLE, and BARRETT, Circuit Judges. RIPPLE, Circuit Judge. Antonio Lopez-Aguilar brought this action against the Marion County Sheriff’s Department (“the Sheriff’s Department”), Sheriff John R. Layton, in both his official capacity and his individual capacity, and a sergeant 2 No. 18-1050

of the Sheriff’s Department, in his individual capacity (to- gether, “the defendants”). His complaint set forth one claim under 42 U.S.C. § 1983. He alleged that when the defendants detained him for transfer into the custody of Immigration and Customs Enforcement (“ICE”), they violated his Fourth Amendment rights. 1 Mr. Lopez-Aguilar also brought sup- plemental claims, based on Indiana law, for false arrest and false imprisonment. His complaint sought damages and a declaration that the defendants had violated his rights by detaining him. He did not seek injunctive relief. The parties later proposed, and the district court subse- quently entered, a Stipulated Final Judgment and Order for Permanent Injunction (“the Stipulated Judgment”), which granted declaratory and prospective injunctive relief but dismissed with prejudice Mr. Lopez-Aguilar’s damages claims. Following the entry of final judgment, but within the time for appeal, the State of Indiana (“the State” or “Indi- ana”) moved to intervene for the purpose of appealing the district court’s order entering the Stipulated Judgment. The district court denied Indiana’s motion to intervene. The State now appeals that denial. Indiana has standing for the purpose of bringing this ap- peal. The State’s motion to intervene was timely, and it also fulfilled the necessary conditions for intervention of right. Finally, the State has demonstrated that the district court was without jurisdiction to enter prospective injunctive re-

1The Fourth Amendment to the Constitution of the United States is made applicable to the states by the Fourteenth Amendment. See Mapp v. Ohio, 367 U.S. 643, 655 (1961). No. 18-1050 3

lief. Therefore, for the reasons set forth more fully below, we reverse the judgment of the district court and remand the case for proceedings consistent with this opinion. I. BACKGROUND A. On September 18, 2014, Mr. Lopez-Aguilar came to the Marion County Courthouse in Indianapolis to attend a hear- ing on a criminal misdemeanor complaint charging him with driving without a license. When he arrived, officers of the Sheriff’s Department informed him and his attorney that an ICE officer had come to the courthouse earlier that day look- 2 ing for him. He alleges that a Sergeant Davis took him into custody. Later that day, Mr. Lopez-Aguilar appeared before the traffic court and resolved his misdemeanor charge. That disposition did not include a sentence of incarceration. Ser- geant Davis nevertheless again took Mr. Lopez-Aguilar into custody, informing him that he would be held until the Sher- iff’s Department could transfer him to ICE’s custody. Mr. Lopez-Aguilar consequently remained at the Marion County jail overnight; the next day, county officers trans- ferred him to ICE. Neither federal nor state authorities charged Mr. Lopez-Aguilar with a crime, and he did not ap-

2 Kevin Wies, the ICE officer who claimed responsibility for Mr. Lopez-Aguilar’s immigration detention and arrest, stated in a decla- ration that, based on a fingerprint match in the ICE database, he had asked the Sheriff’s Department to communicate with him about Mr. Lopez-Aguilar. According to Officer Wies, ICE never issued either a written or an informal detainer for Mr. Lopez-Aguilar. 4 No. 18-1050

pear before a judicial officer. ICE subsequently released him on his own recognizance. An unspecified type of “immigra- tion case” against Mr. Lopez-Aguilar was pending when he later filed this action. 3 B. On September 15, 2016, Mr. Lopez-Aguilar initiated this litigation by filing a complaint against the Sheriff’s Depart- ment, Sheriff Layton, and Sergeant Davis. As noted earlier, he asserted a claim for violation of the Fourth Amendment under 42 U.S.C. § 1983 as well as state law claims for false arrest and false imprisonment. Following the exchange of discovery, the parties agreed to settle the case to “avoid the cost and uncertainty of continued litigation.” 4 Specifically, on July 10, 2017, Mr. Lopez-Aguilar and the defendants jointly proposed to the district court a Stipulated Judgment. Indiana news outlets reported this proposed Stipulated Judgment in the days following its filing. On July 13, 2017, the United States filed a request for time to submit a plead- ing addressing the parties’ proposed settlement. The district court granted that motion, and, on August 4, 2017, the Unit- ed States filed a statement of interest objecting to the Stipu- lated Judgment. The news media also reported the Govern- ment’s opposition to the parties’ agreement. In its statement, the United States noted that the Immi- gration and Nationality Act (“INA”) authorized the Sheriff’s Department to cooperate with the enforcement of federal immigration laws. Further, the Government submitted, the

3 R.1 ¶ 23. 4 Lopez-Aguilar Br. 6. No. 18-1050 5

Sheriff’s Department’s cooperation with ICE did not violate the Fourth Amendment. The United States disputed whether the defendants’ detention of Mr. Lopez-Aguilar amounted to an unlawful seizure. Even if there had been an unlawful sei- zure, continued the Government, the permanent injunction was improper because it imposed relief far beyond any actu- al injury to Mr. Lopez-Aguilar. After considering the positions of the parties and the Government, the district court approved the Stipulated Judgment and then entered a final judgment declaring that: [S]eizures by the defendants of any person based solely on detention requests from [ICE], in whatever form, or on removal orders from an immigration court, violate the Fourth Amendment, unless ICE supplies, or the de- fendants otherwise possess, probable cause to believe that the individual to be detained has committed a criminal offense; [and] … [F]or the avoidance of doubt, an ICE re- quest that defendants seize or hold an individ- ual in custody based solely on a civil immigra- tion violation does not justify a Fourth Amendment seizure … . 5 Further, the district court permanently enjoined the de- fendants from “seizing or detaining any person based solely on detention requests from ICE, in whatever form, or on re- moval orders from an immigration court, unless ICE sup-

5 R.50 at 1–2. 6 No. 18-1050

plies a warrant signed by a judge or otherwise supplies probable cause that the individual to be detained has com- mitted a criminal offense.” 6 The district court also issued an opinion to explain its approval of the Stipulated Judgment. The court first consid- ered whether the Stipulated Judgment would require the Sheriff’s Department to violate Indiana law. A statutory provision prohibits a governmental body, such as the Sher- iff’s Department, from implementing a policy that “prohibits or in any way restricts” law enforcement officers from taking certain actions “with regard to information of the citizenship or immigration status” of a person, such as “[c]ommunicating or cooperating with federal officials.” Ind. Code § 5-2-18.2-3. The district court determined, however, that because the Stipulated Judgment only prohibited the Sheriff’s Department from “seizing” or “detaining” certain individuals, “not from communicating with or about them,” the Stipulated Judgment posed no conflict. 7 The district court then examined another provision that forbids a state governmental body from “limit[ing] or restrict[ing] the en- forcement of federal immigration laws to less than the full extent permitted by federal law.” Ind. Code § 5-2-18.2-4. The district court conceded difficulty in interpreting and apply- ing this provision. It nevertheless determined that, if the provision simply prohibits a state governmental body from requiring or permitting anything less than cooperation with federal immigration enforcement to the full extent such co-

6 Id. at 2. 7 R.49 at 17. No. 18-1050 7

operation is permitted by federal law, there is no conflict with the Stipulated Judgment. In the district court’s view, without an express agreement with the United States Attor- ney General or some other Congressionally-approved ar- rangement, state cooperation with federal immigration au- thorities did not contemplate state enforcement of removal orders or ICE detainers. The INA preempted any such re- quirement. Additionally, said the court, any such state en- forcement absent probable cause would violate the Fourth Amendment. Accordingly, the district court found that the Stipulated Judgment did not require the Sheriff’s Depart- ment to violate Indiana law. 8 The district court next considered whether the Stipulated Judgment complied with the strictures of Local No. 93, Inter- national Association of Firefighters v. City of Cleveland, 478 U.S. 501 (1986). That case requires the district court to determine that a proposed consent decree “(1) spring[s] from and serve[s] to resolve a dispute within the court’s subject matter jurisdiction; (2) come[s] within the general scope of the case made by the pleadings; and (3) further[s] the objectives of the law upon which the complaint was based.” Komyatti v. Bayh, 96 F.3d 955, 960 (7th Cir. 1996) (quoting Local No. 93,

8 The district court also determined that the Stipulated Judgment did not conflict with Indiana Code §§ 5-2-18.2-5, 6. Section 5 creates a private right of action for violations of Chapter 18.2, id. § 5-2-18.2-5, and Section 6 requires a state court that finds a knowing or intentional violation of this chapter to enjoin the violation, id. § 5-2-18.2-6. According to the dis- trict court, because these provisions “impose[] no duties” on the Sheriff’s Department, there was no conflict. R.49 at 17. The State does not chal- lenge the district court’s rulings regarding Sections 5 and 6 in this ap- peal. 8 No. 18-1050

478 U.S. at 525) (alteration omitted) (internal quotation marks omitted). The district court concluded that the Stipu- lated Judgment satisfied these requirements because: (1) it would resolve Mr. Lopez-Aguilar’s § 1983 claim, which was within the court’s subject-matter jurisdiction, by terminating the litigation; (2) restricting the defendants’ ability to coop- erate with ICE was within the scope of Mr. Lopez-Aguilar’s complaint that the defendants had unlawfully seized and detained him; and (3) the Stipulated Judgment “further[ed] Fourth Amendment values” by limiting “state intrusions on individual privacy.” 9 Further, “to the extent the remedy in the Stipulated Judgment exceed[ed] the Fourth Amend- ment’s requirements,” the district court ruled, it was “direct- ly related to the elimination of the condition alleged to of- fend the Fourth Amendment.” 10 Finally, the district court evaluated whether the Stipulat- ed Judgment was fair and reasonable. The district court acknowledged that Mr. Lopez-Aguilar “appear[ed] to have a strong case,” but noted that “litigating the merits” would involve difficult disputes over the defendants’ qualified im- munity defense and the facts surrounding his detention.11 Finally, the district court considered the Government’s posi- tion. It rejected the Government’s view that the relief ex- ceeded the scope of the alleged injury and therefore violated the rule set forth in City of Los Angeles v. Lyons, 461 U.S. 95 (1983). In the court’s view, “if Indiana law does not conflict

9 R.49 at 31. 10 Id. at 32. 11 Id. at 33. No. 18-1050 9

with the Stipulated Judgment, then Marion County and Lopez-Aguilar are free to contract for nearly any remedy 12 they desire.” Finally, the court determined that the Stipu- lated Judgment was consistent with the public interest and would be judicially manageable. The district court approved and entered the Stipulated Judgment on November 7, 2017. According to the State, fol- lowing the entry of final judgment, “an attorney at the Unit- ed States Department of Justice informally advised the Office of the Indiana Attorney General that the State may have in- 13 terests at stake in the case.” Consequently, on December 4, 2017, the State moved for intervention of right or, alterna- tively, for permissive intervention, in order to appeal the dis- trict court’s order entering the Stipulated Judgment. On the same date, the State requested a thirty-day extension of time to file a notice of appeal, which the district court granted. The district court concluded that it was appropriate to grant the State’s motion for extension of time given that “[t]he State was not involved in, and did not necessarily have cause to know of, the course of litigation in this case before filing its intervention and extension motions, and appear[ed] to have sought to protect its interests as soon as was practi- 14 cable upon learning of the Stipulated Judgment.” Mr. Lopez-Aguilar and the defendants opposed the State’s request to intervene, and, on January 5, 2018, the dis-

12 Id. at 34. 13 Appellant’s Br. 14. 14 R.58 at 4 (emphasis omitted). 10 No. 18-1050

trict court denied the State’s motion. First, the district court found that the State had failed to establish Article III stand- ing to intervene because it had not demonstrated an inju- ry-in-fact and because any injury suffered by the State would not be redressable by taking an appeal. The court acknowledged that a state has a legally protected interest in the continued enforceability of its laws and that this interest is harmed when a court holds that a state law is unconstitu- tional. But the district court reasoned that it had not held a state law unconstitutional; it had simply construed a state statute as not requiring that law enforcement officers coop- erate with removal orders, standing alone, or with immigra- tion orders, standing alone. A disagreement about the inter- pretation of a statute is not, held the district court, sufficient to establish a cognizable injury-in-fact. The district court fur- ther held that any injury the State suffered was not redressa- ble. Relying on our decisions in 1000 Friends of Wisconsin Inc. v. United States Department of Transportation, 860 F.3d 480 (7th Cir. 2017), and Kendall-Jackson Winery, Ltd. v. Branson, 212 F.3d 995 (7th Cir. 2000), the court concluded that any judicial relief obtained on appeal (i.e., vacation of the Stipulated Judgment) would remedy the State’s injury only in a contin- gent and collateral way. The district court went on to say that, even if Indiana had standing to intervene, its motion would fail under Federal Rule of Civil Procedure 24 because it was untimely. Further, the court continued, even assuming that the motion was timely, the State was not entitled to intervene as of right be- cause it had not asserted “a direct, significant, and protecta- ble interest unique to the State which will be impaired by the No. 18-1050 11

15 denial of its motion to intervene.” Finally, the district court held that the State was not entitled to permissive interven- tion because it had failed to satisfy the requirements of Rule 24(b). The State timely appealed from the denial of interven- tion. II. DISCUSSION A. In reviewing the district court’s decision, we begin with a basic principle: “It goes without saying that those who seek to invoke the jurisdiction of the federal courts must satisfy the threshold requirement imposed by Art. III of the Consti- tution by alleging an actual case or controversy.” Lyons, 461 U.S. at 101. We therefore must examine, as a threshold mat- ter, whether the State of Indiana has the requisite standing to intervene in this case. This is a question of law, which we review de novo. Winkler v. Gates, 481 F.3d 977, 982 (7th Cir. 2007). To establish standing, a plaintiff must satisfy three crite- ria. Lujan v. Defenders of Wildlife, 504 U.S. 555, 560 (1992). First, the plaintiff must, as an “irreducible constitutional minimum,” demonstrate “injury in fact,” “an invasion of a legally protected interest” which is both “concrete and par- ticularized,” not “conjectural or hypothetical.” Id. (internal quotation marks omitted). “Second, there must be a causal connection between the injury and the conduct complained of—the injury has to be ‘fairly … trace[able] to the chal-

15 R.62 at 17. 12 No. 18-1050

lenged action of the defendant … .’” Id. (quoting Simon v. E. Ky. Welfare Rights Org., 426 U.S. 26, 41 (1976)). Third, the plaintiff must demonstrate that a favorable decision by the court is likely to remedy the claimed injury. Id. at 561. Here, two of these factors—whether the State suffered an injury- in-fact and whether its claimed injury can be redressed by this court—deserve a close examination. We first consider whether the State has demonstrated sufficient injury-in-fact. The State contends that the Stipulat- ed Judgment interferes directly and substantially with the use of its police power to cooperate with the federal government in the enforcement of the Country’s immigration laws. Mr. Lopez-Aguilar, agreeing with the district court, empha- sizes that the injunction does not render the state statutes unconstitutional; it merely interprets them. In his view, Indi- ana’s injury is therefore not a significant one. Mr. Lopez-Aguilar further suggests that if the State could intervene in any litigation where its Attorney General disa- greed with a judicial interpretation of a state statute, the State would have the right to intervene in all sorts of private litigation. Mr. Lopez-Aguilar’s characterization artificially mini- mizes the particular interest that the State seeks to vindicate here. Indiana seeks to protect a state prerogative of constitu- tional dimension. The Supreme Court has recognized specif- ically that a state has a cognizable interest sufficient to estab- lish Article III standing in the “continued enforceability of its own statutes,” even when another party with an aligned in- terest has determined not to appeal. Maine v. Taylor, 477 U.S. 131, 137 (1986). Although the district court did not declare Section 4 unconstitutional in all respects, it did hold that No. 18-1050 13

Fourth Amendment considerations and the preemptive ef- fect of the INA required that the statute be given a restrictive reading. That reading is so restrictive as to preclude state of- ficers from cooperating with federal officers with respect to ICE detainers or immigration court removal orders. The dis- trict court’s interpretation of the statute, although not a total declaration of unconstitutionality, restricts significantly the vitality of the statute and the capacity of the State to cooper- ate with the federal government. Indiana has demonstrated that it has suffered a cognizable injury sufficient for standing to appeal. See Taylor, 477 U.S. at 137 (holding that the State of Maine, an intervenor in the district court and the only ap- pealing party, had standing to appeal because, “if the judg- ment of the Court of Appeals [was] left undisturbed,” Maine would “be bound by the conclusive adjudication” that its law was unenforceable). We next consider whether the State’s claimed injury is redressable. Mr. Lopez-Aguilar observes that the district court’s injunction runs solely against Marion County offi- cials. It does not run against any state official. In his view, we could not grant Indiana relief because it seeks to set aside an injunction against a non-appealing party. He views this rule as an ironclad one, admitting of no exceptions. To sup- port this broad assertion, Mr. Lopez-Aguilar invites our at- tention to our decision in Kendall-Jackson Winery. There, three suppliers of alcoholic beverages sought an injunction against state officials preventing the enforcement of a newly enacted statute that forbade the suppliers to cancel distribution agreements without good cause. 212 F.3d at 996. In bringing the suit against the state officials, these suppliers also had named their previous distributors as defendants. The court entered a preliminary injunction against the state officials, 14 No. 18-1050

enjoining them from enforcing the statute. Id. The state offi- cials did not take an appeal, but the distributor-defendants did. Id. We held that the distributors did not have standing to appeal because the district court’s injunction ran against only the state officials. Id. at 997–98. As long as those officials acquiesced in the imposition of the injunction, the distribu- tors could obtain no relief. Id. at 998. Their injury was deriva- tive; they were harmed only indirectly by the inability of the state officials to issue orders that would protect the distribu- tors’ interests. Id. Our later cases have confirmed the continued vitality of this rule. In Cabral v. City of Evansville, 759 F.3d 639 (7th Cir. 2014), residents of the City of Evansville brought an action against the City challenging the City’s approval of a two-week display of numerous six-foot crosses along public riverfront property. Id. at 641. The district court entered a permanent injunction; it barred the City from granting a permit for the erection of the display. Id. The applicant, the West Side Christian Church, was an intervenor in the district court but was not subject to the injunction. Id. The City did not appeal the district court’s decision to enter a permanent injunction, but the Church did. Id. We dismissed the appeal because the Church did not have standing. Id. We empha- sized that only the City, not the Church, was subject to the injunction. Id. at 642. If we vacated the injunction at the Church’s request, it would not alter whether the Church was permitted to erect the crosses. Id. It would simply allow the City, a stranger to the appeal, to determine whether to per- mit the crosses. Id. Any injury that the Church would suffer, we concluded, was “derivative” of the City’s injury. Id. No. 18-1050 15

We then went on to express our holding another way. We said that it was a basic rule of appellate procedure that “a judgment will not be altered on appeal in favor of a party who did not appeal [even if] the interests of the party not appealing are aligned with those of the appellant.” Id. at 643 (quoting Albedyll v. Wis. Porcelain Co. Revised Ret. Plan, 947 F.2d 246, 252 (7th Cir. 1991)). Relying on Kendall-Jackson, we wrote that “[t]he critical question is this: when a district judge enters an order creating obligations only for Defend- ant A, may the court of appeals alter the judgment on appeal by Defendant B when obligations imposed on A indirectly affect B?” Id. (quoting Kendall-Jackson, 212 F.3d at 998) (em- phasis added). Our more recent decision in 1000 Friends of Wisconsin presented a similar situation. Wisconsin, desirous of widen- ing a road between Fond du Lac and Sheboygan, sought the release of federal funds for the project. 860 F.3d at 481. The United States Department of Transportation released an en- vironmental impact statement evaluating the potential ef- fects of the project and then issued a “record of decision permitting the use of federal funds.” Id. At that point, a group opposed to the project brought suit, asking the district court to determine that the impact statement was inadequate and to enjoin the project. Id. The district court declined to enjoin the project but did set aside the “record of decision.” Id. The United States Department of Transportation then is- sued a revised impact statement, but the district court con- tinued to deem it inadequate. Id. Only the Wisconsin De- partment of Transportation and one of its employees ap- pealed the district court’s decision; the United States De- partment of Transportation did not. Id. We held that the Wisconsin authorities did not have standing to appeal. Id. at 16 No. 18-1050

483. We stressed that, under the statute governing environ- mental impact statements, state authorities had no duties. Id. at 482. They remained free to undertake the project with state funds. Id. Only the federal authorities were subject to the court’s order disapproving of the environmental impact statement, and the State could not substitute itself for the federal agency that had responsibility for the statement. Id. Any harm to Wisconsin was indirect; it could not obtain fed- eral funds, but it remained free to proceed on its own. In Mr. Lopez-Aguilar’s view, our holdings in these cases are dispositive. Although his argument has superficial ap- peal, on reflection, we cannot accept it. Here, we are not dealing with the derivative injury of a private party whose interests are dependent on the enjoined party. Rather, the district court has enjoined a subordinate component of state government from acting in accordance with the directive of the state legislature. Indiana alleges a direct injury to its ca- pacity to require subordinate entities of state government to act in accordance with state law. In its sovereign capacity, the State seeks to vindicate its authority to require officials of subordinate units of government to fulfill their responsibili- ties. The State maintains that the Stipulated Judgment direct- ly frustrates its prerogatives and confounds its efforts to be supportive of federal policy. Indiana contends, in essence, that the subordinate officers of state government have abdi- cated their responsibilities by agreeing to the district court’s injunction. The State seeks to protect its sovereign preroga- tive to cooperate with the federal government and to require subordinate entities of state government to comply with that legislative policy directive. No. 18-1050 17

Mr. Lopez-Aguilar reminds us that the defendants have no statutory duty to appeal the district court’s judgment. Those officials do have a statutory duty, however, to obey state law. Indiana simply asks that we vacate a federal dis- trict court order requiring local law enforcement officers in Marion County to act in perpetuity contrary to state law. Such relief will remedy directly the injury to the State’s sov- ereign interest in implementing a state-wide legislative poli- cy of full cooperation with federal immigration law. Because the State established a cognizable injury-in-fact, see Taylor, 477 U.S. at 137 (recognizing that “a State clearly has a legiti- mate interest in the continued enforceability of its own stat- utes”), and because we can directly redress that injury by vacating the Stipulated Judgment, we conclude that the State has standing to bring this appeal. B. 1. Having presented a justiciable case or controversy, Indi- ana still must comply with the requirements of Rule 24. A prerequisite for both intervention of right and permissive intervention is that the motion to intervene must be timely. Fed. R. Civ. P. 24(a), (b). Mr. Lopez-Aguilar submits that the district court correctly held that, even if the State had stand- ing to appeal, its motion to intervene was not timely. As detailed above, Mr. Lopez-Aguilar and the defend- ants jointly filed the Stipulated Judgment with the district court on July 10, 2017. Three days later, on July 13, 2017, the United States filed a request for time to submit a Statement of Interest, which the district court granted. On August 4, 2017, the United States filed its Statement of Interest oppos- 18 No. 18-1050

ing entry of the Stipulated Judgment. The district court nev- ertheless approved and entered the Stipulated Judgment on November 7, 2017. According to the State of Indiana, follow- ing entry of the Stipulated Judgment, “an attorney at the United States Department of Justice informally advised the Office of the Indiana Attorney General that the State may 16 have interests at stake in the case.” Consequently, on De- cember 4, 2017, the State moved to intervene in order to ap- peal the district court’s order entering the Stipulated Judg- ment. On the same date, the State requested, and the district court granted, a thirty-day extension of time to file a notice of appeal. In its order granting the extension of time, the district court explained that, “[e]ven with the exercise of due dili- gence, the State would not necessarily have had earlier no- 17 tice of this lawsuit and our entry of final judgment.” The court further observed that: [P]ublished news items and broadcast media coverage included discussions of this lawsuit both before and after final judgment was en- tered. It is not far-fetched to presume that State government officials would take the appropri- ate steps to keep abreast of legal proceedings touching on major questions of public policy involving its capital city’s government. That said, we know of no legal duty imposed on the

16 Appellant’s Br. 14. 17 R.58 at 3. No. 18-1050 19

State to track every lawsuit implicating an in- terpretation of Indiana law—the primary basis for the State’s intervention motion—and we have no reason to believe that the State had ac- tual notice of this lawsuit before its filing of the 18 motions now before us. The district court concluded that it was appropriate to grant the State’s motion for extension of time to appeal given that “[t]he State was not involved in, and did not necessarily have cause to know of, the course of litigation in this case before filing its intervention and extension motions, and ap- pear[ed] to have sought to protect its interests as soon as was 19 practicable upon learning of the Stipulated Judgment.” De- spite these findings, on January 5, 2018, the district court de- nied the State’s motion to intervene. Among other grounds, the court determined that the State’s motion failed for lack of timeliness. We have stated, in the context of Rule 24, that “[t]imeliness is not limited to chronological considerations but is to be determined from all the circumstances.” City of Bloomington v. Westinghouse Elec. Corp., 824 F.2d 531, 534 (7th Cir. 1987) (internal quotation marks omitted). We consider four factors to determine whether a motion to intervene is timely: “(1) the length of time the intervenor knew or should have known of his interest in the case; (2) the prejudice caused to the original parties by the delay; (3) the prejudice

18 Id. at 3–4. 19 Id. at 4 (emphasis omitted). 20 No. 18-1050

to the intervenor if the motion is denied; [and] (4) any other unusual circumstances.” Sokaogon Chippewa Cmty. v. Babbitt, 214 F.3d 941, 949 (7th Cir. 2000). “The test for timeliness is essentially one of reasonableness: ‘potential intervenors need to be reasonably diligent in learning of a suit that might af- fect their rights, and upon so learning they need to act rea- sonably promptly.’” Reich v. ABC/York-Estes Corp., 64 F.3d 316, 321 (7th Cir. 1995) (quoting Nissei Sangyo America, Ltd. v. United States, 31 F.3d 435, 438 (7th Cir. 1994)). We further note that, when intervention of right is sought, because “the would-be intervenor may be seriously harmed if interven- tion is denied, courts should be reluctant to dismiss such a request for intervention as untimely, even though they might deny the request if the intervention were merely per- missive.” 7C Charles Alan Wright et al., Federal Practice & Procedure: Civil § 1916 (3d ed. 2018). “We review the district court’s decision on timeliness for an abuse of discretion.” Reich, 64 F.3d at 321. The first factor that we consider is the length of time the State knew or should have known of its interest in this case. “[W]e do not necessarily put potential intervenors on the clock at the moment the suit is filed or even at the time they learn of its existence. Rather, we determine timeliness from the time the potential intervenors learn that their interest might be impaired.” Id. Indiana contends that its motion was timely because it moved to intervene as soon as it became aware of the Stipulated Judgment, less than a month after the entry of judgment and within the time to file an appeal. It maintains that it was unaware of this case or the Stipulat- ed Judgment until after the district court entered final judg- ment. No. 18-1050 21

In considering this first factor, we, like our sister circuits, give significant weight to the fact that the motion to inter- vene was filed within the time limit for filing a notice of ap- peal. 20 Additionally, although the district court ultimately ruled that the motion to intervene was not timely, the court’s earlier statements reflected another view. In finally denying the motion to intervene, the court remarked that the State should have known that it had an interest in the litigation five months earlier, when the parties proposed the Stipulat- ed Judgment. The court also asserted that the State should have known of its interest in this case when, as early as July 12, 2017, Indiana media outlets published stories about this litigation and the parties’ proposed agreement. By contrast, in granting the State’s motion for extension of time to ap- peal, the court noted that “[e]ven with the exercise of due diligence, the State would not necessarily have had earlier notice of this lawsuit and [the district court’s] entry of final 21 judgment.” Indeed, the district court acknowledged, cor- rectly, that “we know of no legal duty imposed on the State to track every lawsuit implicating an interpretation of Indi- ana law … and we have no reason to believe that the State had actual notice of this lawsuit” before filing its motion to 22 intervene. We think the latter remarks of the district court reflect a more accurate and realistic view of the entire record. The district court was correct in determining that the State

20See, e.g., Ross v. Marshall, 426 F.3d 745, 755 (5th Cir. 2005); Triax Co. v. TRW, Inc., 724 F.2d 1224, 1229 (6th Cir. 1984). 21 R.58 at 3. 22 Id. at 4. 22 No. 18-1050

cannot be faulted for not learning of this suit sooner. The State received no notification of the initiation of this litiga- tion, and the Attorney General of Indiana had no obligation to monitor the local news services to determine from their reports whether the State had a sufficient interest to justify entering the litigation. 23 Of course, the “most important consideration in deciding whether a motion for intervention is untimely is whether the delay in moving for intervention will prejudice the existing parties to the case.” Nissei Sangyo America, Ltd. v. United States, 31 F.3d 435, 439 (7th Cir. 1994) (quoting 7C Charles Alan Wright et al., Federal Practice & Procedure: Civil § 1916 (2d ed. 1986)). Where a stipulated judgment is involved, in- tervention can prejudice the original parties because the judgment cannot be approved without the intervenor’s agreement and because the implementation of its terms will “necessarily be delayed.” City of Bloomington, 824 F.2d at 536. The district court determined that the prejudice to the original parties would be “real and appreciable” because the personal-capacity defendants had been dismissed with prej- udice and their repose would be disturbed. 24 The offi-

23 Cf. Atl. Mut. Ins. Co. v. Nw. Airlines, Inc., 24 F.3d 958, 961 (7th Cir. 1994) (noting that, “[u]ntil the district judge issued his opinion,” the intervenor “could not have known that this otherwise-mundane case included an issue affecting international relations”); Peruta v. Cty. of San Diego, 824 F.3d 919, 940 (9th Cir. 2016) (en banc) (granting the State of California’s motion to intervene after a panel of the Ninth Circuit had issued its deci- sion because the State “had no strong incentive to seek intervention … at an earlier stage, for it had little reason to anticipate … the breadth of the panel’s holding”). 24 R.62 at 14. No. 18-1050 23

cial-capacity defendants had obtained the district court’s de- termination of their obligations, and Mr. Lopez-Aguilar’s vindication of his position would be “wholly overthrown” 25 by reopening the litigation. As a practical matter, however, none of these suggested difficulties can be said to be a result of the State’s “delay” in moving to intervene. Even if the State moved to intervene in July 2017, after the parties proposed the Stipulated Judg- ment, rather than in December 2017, after the State learned that the district court had entered final judgment, the burden to the parties of reopening the litigation and resuming set- tlement negotiations would have been the same. Cf. Nissei Sangyo America, 31 F.3d at 439 (concluding that the interve- nor’s “delay” did not cause the type of prejudice advanced by the plaintiff, since the plaintiff “would have been bur- dened in precisely the same manner had [the movant’s] mo- tion to intervene been filed in July rather than October”). Any prejudice to Mr. Lopez-Aguilar and the defendants is not “so great as to justify denying” the State’s motion to in- tervene. Reich, 64 F.3d at 322. We also must consider “the prejudice to the intervenor if the motion is denied.” Sokaogon Chippewa Cmty., 214 F.3d at 949. For example, we determined in Reich that the prejudice to a group of exotic dancers who wished to intervene in a Fair Labor Standards Act suit brought against their employ- er by the Secretary of Labor was significant and outweighed any prejudice to the existing parties. Reich, 64 F.3d at 322. Absent intervention, the dancers would have been denied

25 Id. 24 No. 18-1050

“their one and only opportunity to define their employment status” with the defendant. Id. Here, the district court took the view that the prejudice to the State “would be minimal or nonexistent” because its or- der “binds only the original parties to this action” and be- cause the State “has numerous courts, state and federal, and numerous potential cases, open to it for the vindication of its 26 preferred legal position.” We cannot accept this view. The district court’s entry of a permanent injunction hobbles, sub- stantially, Indiana’s ability to implement its legislative policy in its most populous county. Nor is this a case where the State previously had the opportunity, but elected not, to provide its input on the terms of the Stipulated Judgment. Cf. City of Bloomington, 824 F.2d at 537 (noting that the pro- posed intervenor had “submitted its comments to the Justice Department, and its views were presumably considered by the district court prior to the final entry of the consent de- cree,” such that “it would suffer little prejudice if it were de- nied permission to intervene”). Rather, the district court ap- proved and entered the Stipulated Judgment without any adversarial briefing on the enforceability of the relevant In- diana code provisions, let alone any input from the State. The prejudice to the State from being denied the opportunity to explain portions of its legal code is “significant” and “outweighs any prejudice” to the existing parties. Reich, 64 F.3d at 322. A state’s right to participate in federal litigation implicat- ing its interests as a sovereign is a serious matter. Cf. 28

26 Id. at 15. No. 18-1050 25

U.S.C. § 2403(b) (requiring a district court to notify a state’s attorney general and permit the state to intervene whenever the constitutionality of a state statute is at stake); Fed. R. Civ. P. 5.1 (permitting the state attorney general to intervene when a party files a paper “drawing into question the consti- tutionality” of a state statute). 27 Moreover, the impairment of a substantive state legislative policy that directly implicates federal-state cooperation is surely a matter requiring great sensitivity on the part of the federal courts. If the State can- not intervene, then the district court’s judgment will stand without adversarial briefing on the question of the enforcea- bility of the Indiana code provisions designed to promote such cooperation. In sum, because the State filed its motion to intervene within the time for filing an appeal, because the State cannot be faulted for not having intervened earlier, and because the prejudice to the State from being denied intervenor status outweighs any prejudice to the parties from allowing inter- 28 vention, its motion to intervene was timely. The district

27 Indiana does not argue that 28 U.S.C. § 2403(b) is directly applicable in this case, nor is the operation of that statute clear where federal preemp- tion of state law is the operative issue. For those reasons, we will preter- mit any reliance upon it. 28The fourth factor we may consider is whether there are “any other un- usual circumstances” bearing on the timeliness inquiry. Sokaogon Chip- pewa Cmty. v. Babbitt, 214 F.3d 941, 949 (7th Cir. 2000). The district court ruled that “the State has pointed us to no such circumstances, and we perceive none.” R.62 at 15. In its brief on appeal, the State has raised no argument regarding any unusual circumstances. Cf. Appellant’s Br. 23– 27. Therefore, our analysis does not include this factor. 26 No. 18-1050

court exceeded the bounds of permissible discretion in reaching a contrary conclusion. 2. We now turn to examine whether the State satisfied the remaining conditions for seeking intervention. A non-party who wishes to intervene as of right must satisfy three re- quirements under Rule 24(a): (1) [T]he applicant must claim an interest relat- ing to the property or transaction which is the subject of the action, (2) the applicant must be so situated that the disposition of the action may as a practical matter impair or impede the applicant’s ability to protect that interest, and (3) existing parties must not be adequate repre- sentatives of the applicant’s interest. Sokaogon Chippewa Cmty., 214 F.3d at 945–46. We first consider whether Indiana has a legally protecta- ble interest in this litigation. “Our cases say that the prospec- tive intervenor’s interest must be direct, significant, and le- gally protectable.” Solid Waste Agency of N. Cook Cty. v. Unit- ed States Army Corps of Eng’rs, 101 F.3d 503, 506 (7th Cir. 1996). The Rule does not define “interest,” but “the case law makes clear that more than the minimum Article III interest is required.” Flying J, Inc. v. Van Hollen, 578 F.3d 569, 571 (7th Cir. 2009). At the same time, we have interpreted “state- ments of the Supreme Court as encouraging liberality in the definition of an interest.” Meridian Homes Corp. v. Nicholas W. Prassas & Co., 683 F.2d 201, 204 (7th Cir. 1982). In general, “[w]hether an applicant has an interest sufficient to warrant No. 18-1050 27

intervention as a matter of right is a highly fact-specific de- termination, making comparison to other cases of limited value.” Sec. Ins. Co. of Hartford v. Schipporeit, Inc., 69 F.3d 1377, 1381 (7th Cir. 1995). In this case, the State has a fundamental interest in the maintenance of its legislatively mandated policy to cooper- ate fully with the federal government in the enforcement of immigration laws. It is certainly within the State’s exclusive purview to establish its expectations of the law enforcement officers operating under its statutes. Indiana has an interest in giving effect to its legislature’s determination that the State ought to cooperate fully with federal immigration en- forcement. Because the State has a substantial interest in overturning a federal injunction that limits its ability to ef- fectuate its legislature’s expectations, it has a “direct, signifi- cant, and legally protectable” interest in this litigation. Solid Waste Agency, 101 F.3d at 506. 29

29 The Supreme Court’s decision in Arizona v. United States, 567 U.S. 387 (2012), does not diminish the State’s asserted interest in this litigation. In Arizona, the Court held that the Immigration and Nationality Act (“INA”) preempted an Arizona statute authorizing state officers, acting without a warrant, to detain any person if the officer had probable cause to believe that person committed an offense that made him removable from the United States. Id. at 410. The Court observed that federal law “instructs when it is appropriate to arrest an alien during the removal process.” Id. at 407. By “attempt[ing] to provide state officers even great- er authority to arrest aliens on the basis of possible removability than Congress ha[d] given to trained federal immigration officers,” the Arizo- na statute conflicted with the federal scheme. Id. at 408. In defense of the statute, Arizona referenced 8 U.S.C. § 1357(g)(10)(B), which authorizes state officers to “cooperate with the Attorney General in the identifica- tion, apprehension, detention, or removal of aliens not lawfully present (continued … ) 28 No. 18-1050

Next, we examine whether the Stipulated Judgment “may as a practical matter impair or impede” the State’s “ability to protect its interest.” Fed. R. Civ. P. 24(a)(2). We have recognized that “concern with the stare decisis effect of a decision can be a ground for intervention.” Flying J, 578 F.3d at 573. We also have observed that requiring a would-be intervenor to assert his interest in a separate suit can amount to an “impediment” justifying intervention as of right. Id. In Flying J, for example, we held that the interest of retailers who wished to limit price competition “would be directly rather than remotely harmed by invalidation” of a statute regulating unfair sales because the retailers “would lose much or even all of their business to their larger, more efficient competitors.” Id. at 572. Because the retailers sought only “an opportunity to litigate an appeal,” we concluded that requiring the retailers to “start over” by bringing a sepa-

( … continued) in the United States.” But, according to the Court, “no coherent under- standing” of the word “cooperation” would include “the unilateral deci- sion of state officers to arrest an alien for being removable absent any request, approval, or other instruction from the Federal Government.” Arizona, 567 U.S. at 410. By contrast, the Indiana statutes at issue here only require that state and local officers cooperate with federal immigra- tion efforts. See Ind. Code § 5-2-18.2-3 (prohibiting a governmental body from implementing a policy that “prohibits or in any way restricts” law enforcement officers from taking covered actions “with regard to infor- mation of the citizenship or immigration status” of a person, such as “[c]ommunicating or cooperating with federal officials”); id. § 5-2-18.2-4 (prohibiting a governmental body from “limit[ing] or restrict[ing] the enforcement of federal immigration laws to less than the full extent per- mitted by federal law”). Indiana law does not contemplate the kind of unilateral action by state officers that the Arizona Court determined vio- lated federal law. No. 18-1050 29

rate suit was an “impediment” that could be removed, with- out prejudice to the parties, “by allowing intervention.” Id. at 573. Here, the Stipulated Judgment will impair directly the State’s ability to protect its substantial interest in cooperating with federal immigration enforcement efforts. The terms of the injunction oblige the Sheriff’s Department of Indiana’s most populous county to disregard, in a significant way, what the State believes is a legislative command to cooperate with the federal government. Absent intervention, the State will have no opportunity to assert its interest before the par- ties are bound by the terms of the Stipulated Judgment. See Solid Waste Agency, 101 F.3d at 507 (observing that “[t]he strongest case for intervention” is “where the interve- nor-aspirant has no claim against the defendant yet a legally protected interest that could be impaired by the suit”). Lastly, we examine whether the existing parties ade- quately represent Indiana’s interest. We presume adequacy of representation “[w]here the interests of the original party and of the intervenor are identical—where in other words there is no conflict of interest.” Id. at 508. Here, by contrast, none of the original parties, who jointly requested entry of the Stipulated Judgment and did not seek an appeal, share the State’s interest in defending the enforceability of the con- tested state statutes. Neither Mr. Lopez-Aguilar nor the de- fendants contend that any existing party adequately repre- sents any interest the State may have in this case. Because the State has demonstrated a direct, significant, and legally protectable interest in this litigation, which will be impaired absent intervention and is not adequately repre- sented by the existing parties, the State is entitled to inter- 30 No. 18-1050

vention as of right. The district court therefore erred when it denied the State’s motion. 30 C. Having determined that the district court should have permitted Indiana to intervene for purposes of taking an ap- peal, we turn now to consider the State’s position. In Indi- ana’s view, “[t]he district court lacked Article III jurisdiction to declare unlawful and permanently enjoin Marion Coun- 31 ty’s detention of removable aliens.” More specifically, In- diana submits that, because Mr. Lopez-Aguilar alleged only a single past incident of unlawful conduct—his detention in September 2014, at an ICE officer’s request—his claim of past injury does not constitute in itself the real and immedi- ate threat of injury necessary to make out a case or contro- versy. We evaluate this contention by focusing on the Supreme Court’s decision in Lyons. In that case, Lyons sued the City of Los Angeles and four of its police officers, alleging that the officers had stopped him for a traffic violation and, without provocation or legal justification, seized him and applied a “chokehold.” 461 U.S. at 97. He sought damages, a declaratory judgment, and an injunction against the City barring the use of chokeholds. Id. at 98. The Supreme Court reversed the district court’s entry of a preliminary injunc-

30Because Indiana clearly satisfies the criteria for intervention as of right under Rule 24(a), we need not examine in-depth whether it fulfills the requirements for permissive intervention under Rule 24(b). 31 Appellant’s Br. 33. No. 18-1050 31

tion. It held that “the federal courts [were] without jurisdic- tion to entertain Lyons’ claim for injunctive relief.” Id. at 101. The Court began its analysis with the premise that “those who seek to invoke the jurisdiction of the federal courts must satisfy the threshold requirement imposed by Art. III of the Constitution by alleging an actual case or controver- sy.” Id. Specifically, “[t]he plaintiff must show that he has sustained or is immediately in danger of sustaining some direct injury as the result of the challenged official conduct.” Id. at 101–02 (internal quotation marks omitted). That “injury or threat of injury must be both real and immediate, not con- jectural or hypothetical.” Id. at 102 (internal quotation marks omitted). It followed that “Lyons’ standing to seek the in- junction requested depended on whether he was likely to suffer future injury from the use of the chokeholds by police officers.” Id. at 105. Relying on its decisions in O’Shea v. Littleton, 414 U.S. 488 (1974), and Rizzo v. Goode, 423 U.S. 362 (1976), the Court con- cluded that Lyons “failed to demonstrate a case or contro- versy with the City that would justify the equitable relief sought.” Id. In O’Shea, the Court had held that the plaintiffs’ complaint that they had been subject to discriminatory en- forcement of the criminal law “failed to satisfy the threshold requirement imposed by Art. III of the Constitution that those who seek to invoke the power of federal courts must allege an actual case or controversy.” 414 U.S. at 493. The Court reasoned that, although some of the named plaintiffs had actually “suffered from the alleged unconstitutional practices,” “[p]ast exposure to illegal conduct does not in it- self show a present case or controversy regarding injunctive relief[] … if unaccompanied by any continuing, present ad- 32 No. 18-1050

verse effects.” Id. at 495–96. Further, even if the Court were to conclude that the complaint presented a case or contro- versy, the plaintiff class had failed “to establish the basic requisites of the issuance of equitable relief in these circum- stances—the likelihood of substantial and immediate irrepa- rable injury, and the inadequacy of remedies at law.” Id. at 502. Similarly, in Rizzo, the plaintiffs sought equitable inter- vention to remedy police officer mistreatment of minority citizens and Philadelphia residents. 423 U.S. at 366–67. Be- cause the plaintiffs’ alleged injury rested on “what one of a small, unnamed minority of policemen might do to them in the future,” the Court concluded that “[t]his hypothesis [was] even more attenuated than those allegations of future injury found insufficient in O’Shea to warrant invocation of federal jurisdiction.” Id. at 372. Adhering to these principles, the Court in Lyons conclud- ed that the plaintiff’s complaint fell “far short of the allega- tions that would be necessary to establish a case or contro- versy.” Lyons, 461 U.S. at 105. Although Lyons may have been illegally choked by the police on October 6, 1976, the Court observed that this single past incident did “nothing to establish a real and immediate threat that he would again be stopped for a traffic violation, or for any other offense, by an officer or officers who would illegally choke him into uncon- sciousness without any provocation or resistance on his part.” Id. Given the “speculative nature” of his “claim of fu- ture injury,” Lyons had failed to demonstrate a “likelihood of substantial and immediate irreparable injury,” which is a “prerequisite of equitable relief.” Id. at 111 (quoting O’Shea, 414 U.S. at 502). “Absent a sufficient likelihood that he No. 18-1050 33

[would] again be wronged in a similar way,” the Court ex- plained, Lyons was “no more entitled to an injunction than any other citizen of Los Angeles.” Id. Finally, the Court stressed that “the need for a proper balance between state and federal authority counsels restraint in the issuance of injunctions against state officers engaged in the administra- tion of the States’ criminal laws” absent “irreparable injury which is both great and immediate.” Id. at 112 (citing O’Shea, 414 U.S. at 499). Accordingly, Lyons lacked standing to seek the injunction requested. Lyons establishes that a plaintiff cannot seek an injunction “absent a showing of irreparable injury, a requirement that cannot be met where there is no showing of any real or im- mediate threat that the plaintiff will be wronged again.” Id. at 111. We consistently have understood Lyons to foreclose claims for equitable relief based on lack of standing where “the possibility” that the plaintiff “would suffer any injury as a result of” the challenged practice was “too speculative.” Robinson v. City of Chi., 868 F.2d 959, 966 (7th Cir. 1989) (af- firming that there was “no reasonable likelihood” that plain- tiff’s claims would recur because he had “not alleged and ha[d] not shown that he [was] in immediate danger of again being directly injured” by a “post-arrest detention for inves- tigation prior to a probable cause hearing”); see also Campbell v. Miller, 373 F.3d 834, 836 (7th Cir. 2004) (concluding that, after Indianapolis police officers arrested plaintiff for pos- sessing marijuana and conducted a body-cavity search for drugs before releasing him, the district court could not en- join this practice because, “[u]nless the same events [were] likely to happen again to him there [was] no controversy be- tween him and the City about the City’s future handling of other arrests” (emphasis in original)); Perry v. Sheahan, 222 34 No. 18-1050

F.3d 309, 313 (7th Cir. 2000) (affirming plaintiff’s lack of standing to seek injunction of county policy of seizing fire- arms during an eviction because Perry could not “demon- strate a realistic threat that he would be the subject of anoth- er forcible eviction in Cook County that would result in the seizure of his property”); Knox v. McGinnis, 998 F.2d 1405, 1413 (7th Cir. 1993) (denying Knox’s claim for injunctive re- lief because “the mere possibility that Knox may sometime in the future be returned to the [prison] segregation unit [did] not establish a real and immediate case or controver- sy”). We recently applied Lyons in Simic v. City of Chicago, 851 F.3d 734 (7th Cir. 2017). In that case, a police officer issued Simic a ticket for violating Chicago’s ordinance against tex- ting while driving. Id. at 736. When the plaintiff failed to pay the ticket, the City took steps to collect a fine. Id. Simic then sued the City, claiming that the ordinance was unconstitu- tional and seeking to enjoin its enforcement. Id. at 736–37. On appeal, we determined that Simic did not have standing to seek injunctive relief. “Unlike with damages,” we ex- plained, “a past injury alone is insufficient to establish stand- ing for purposes of prospective injunctive relief.” Id. at 738. We determined that “Simic’s claimed threat of future in- jury” was “conjectural” because it was entirely “contingent upon her once again driving while using her cell phone and receiving a citation under the Chicago ordinance.” Id. “For purposes of standing to seek injunctive relief against future harm,” we added, “courts generally assume that litigants ‘will conduct their activities within the law and so avoid prosecution and conviction.’” Id. (quoting O'Shea, 414 U.S. at 497). Because Simic did “not have concrete plans to violate No. 18-1050 35

Illinois law by using her cell phone while driving in Chica- go,” she lacked standing to seek injunctive relief. Id. Applying Lyons to the case at hand, Mr. Lopez-Aguilar has failed to establish a case or controversy with the defend- ants “that would justify the equitable relief sought.” Lyons, 461 U.S. at 105. Mr. Lopez-Aguilar’s complaint identified as the source of his injury a single, isolated incident, on Sep- tember 18, 2014, when a Marion County officer, at the re- quest of an ICE officer, arrested and held him without prob- able cause. He did not allege any subsequent contact with the Sheriff’s Department or the individual defendants, let alone any subsequent detentions in Marion County. That Mr. Lopez-Aguilar does not reside in Marion County makes a subsequent encounter with the Sheriff’s Department and detention at the request of ICE all the more speculative. Therefore, “the odds” that Mr. Lopez-Aguilar will return to Marion County, again commit a traffic violation or other in- fraction resulting in an encounter with the Sheriff’s Depart- ment, and again be detained at ICE’s request are not “suffi- cient to make out a federal case for equitable relief.” Lyons, 461 U.S. at 108 (internal quotation marks omitted). Absent “continuing, present adverse effects,” Mr. Lopez-Aguilar’s “[p]ast exposure to illegal conduct” by the defendants does not amount to a “present case or controversy” for equitable relief. O’Shea, 414 U.S. at 495–96. Mr. Lopez-Aguilar simply fails to demonstrate a “likeli- hood of substantial and immediate irreparable injury,” a prerequisite for equitable relief. Lyons, 461 U.S. at 111 (quot- ing O’Shea, 414 U.S. at 502). Without a “showing of any real or immediate threat that the plaintiff will be wronged again,” id., Mr. Lopez-Aguilar lacked standing to request, 36 No. 18-1050

and the district court lacked jurisdiction to award, the de- claratory judgment and permanent injunction set forth in the Stipulated Judgment. Mr. Lopez-Aguilar is notably reticent about countering forthrightly the State’s argument that, under Lyons, he lacked standing to seek (and the district court lacked juris- diction to award) injunctive relief. Instead, he maintains that the State ignores the line of cases holding that parties can agree through consent decrees to more relief than a court could have ordered absent settlement and more than the 32 Constitution itself requires. This argument over-reads sig- nificantly the governing case law. The requirement that the plaintiff must have standing to seek equitable relief does not cease when the parties agree to such relief by stipulated judgment. Although “[c]onsent decrees often embody out- comes that reach beyond basic constitutional protections,” to be “enforceable as a judicial decree,” a consent decree is “subject to the rules generally applicable to other judgments and decrees.” Kindred v. Duckworth, 9 F.3d 638, 641 (7th Cir. 1993). The district court cannot “suspend the application of Article III” and the parties cannot “stipulate to the enlarge- ment of federal jurisdiction” by means of a consent decree.

32 One of the cases on which Mr. Lopez-Aguilar relies is Local No. 93, In- ternational Association of Firefighters v. City of Cleveland, 478 U.S. 501, 522 (1986). Although the Court in Local No. 93 concluded that parties may agree to, and courts may enter, a consent decree that includes terms be- yond the remedies provided in a specific statute, the Court never sug- gested that a court may enter a consent decree that includes a remedy beyond the court’s jurisdiction. Indeed, the Court noted that “a consent decree must spring from and serve to resolve a dispute within the court’s subject-matter jurisdiction.” Id. at 525. No. 18-1050 37

United States v. ACCRA PAC, Inc., 173 F.3d 630, 633 (7th Cir. 1999). Even when the parties resolve the plaintiff’s claims by agreement, therefore, the district court must consider whether it has jurisdiction to award the relief requested. For instance, in Blair v. Shanahan, 38 F.3d 1514 (9th Cir. 1994), the court determined that the plaintiff lacked standing to seek a declaratory judgment that a California statute crim- inalizing aggressive panhandling was unconstitutional. In the district court, the City of San Francisco had made an of- fer of judgment under which it would accept a declaratory judgment in favor of the plaintiff. Id. at 1517. After the dis- trict court approved the consent judgment, the City moved to modify or vacate the judgment. The district court denied that motion, and the City appealed. Id. at 1518. The Ninth Circuit reversed, holding that the plaintiff lacked standing to seek declaratory relief because “it [was] unlikely that he [would] ever again desire to panhandle.” Id. at 1519. Relying on Lyons, the court observed that, “in the context of Blair’s request for declaratory or injunctive relief, ‘[p]ast exposure to illegal conduct does not itself show a present case or con- troversy … if unaccompanied by any continuing, present adverse effects.’” Id. (quoting Lyons, 461 U.S. at 102). Thus, “Blair’s lack of a personal stake in the declaratory judgment” left the court “without jurisdiction to review the district court’s order” declaring the statute unconstitutional. Id. at 33 1520.

33 Similarly, in Ducharme v. Rhode Island, No. 93-1675, 1994 WL 390144 (1st Cir. July 15, 1994) (unpublished), the court concluded that “Du- charme’s claims for equitable relief [did] not fall within the subject mat- ter jurisdiction of the federal courts.” Id. at *3. The Rhode Island State (continued … ) 38 No. 18-1050

The parties’ agreement to resolve Mr. Lopez-Aguilar’s claims by stipulated judgment did not relieve the district court of its obligation to confirm that it had Article III juris- diction to enter the declaratory judgment and permanent in- junction. Lyons operates with the same force and effect in this context and compels the conclusion that Mr. Lopez-Aguilar did not have standing to request equita- ble relief. The Supreme Court has admonished that, absent “great and immediate” irreparable injury, “the need for a proper balance between state and federal authority counsels restraint in the issuance of injunctions against state officers

( … continued) Police had arrested Ducharme for disorderly conduct, taken him to a police building, and strip searched him before placing him in a holding cell. Id. at *1. Ducharme brought a claim under 42 U.S.C. § 1983 against the State Police and the police officer who searched him, alleging that the strip search violated his rights under the Fourth and Fourteenth Amendments. Id. The parties negotiated a consent judgment, by which the defendants agreed to pay Ducharme damages and to refrain from performing strip searches of arrestees charged with misdemeanors or motor vehicle offenses. Id. at *2. The district court denied Ducharme’s motion for entry of the consent judgment, and the First Circuit affirmed. Acknowledging that “Ducharme clearly ha[d] standing to bring an ac- tion for damages against the defendants based on the … strip search,” the court held that “[i]t [was] equally obvious that Ducharme ha[d] no standing to request equitable relief.” Id. at *3. The court “simply” could not “assume that Ducharme [would] violate the law in the future in a manner that would lead the State Police to arrest him and place him in a holding cell.” Id. Accordingly, “[i]n the absence of a case or controversy with respect to Ducharme’s claim for equitable relief, Lyons teaches that neither we nor the district court have jurisdiction to consider the merits of an equitable decree.” Id. The court perceived no “reason why the out- come of the jurisdictional inquiry should turn on whether the decree is the product of a pre-trial consent judgment or a post-trial order.” Id. No. 18-1050 39

engaged in the administration of the States’ criminal laws.” Lyons, 461 U.S. at 112; see also O’Shea, 414 U.S. at 499. There- fore, the district court erred when it entered the Stipulated Judgment without regard to Mr. Lopez-Aguilar’s standing to 34 seek equitable relief.

34 Mr. Lopez-Aguilar relies on O’Sullivan v. City of Chicago, 396 F.3d 843 (7th Cir. 2005), for the proposition that, although “Article III standing might not have supported injunctive relief (or any relief) at the time the decree was entered,” that “did not cast doubt on the district court’s abil- ity to enter the decree when the case was properly within its sub- ject-matter jurisdiction.” Lopez-Aguilar Br. 47. O’Sullivan, however, ad- dressed a different, and unique, situation. In O’Sullivan, the original con- sent decree was entered in 1972 and modified twice after that date. O’Sullivan, 396 F.3d at 848, 851. Approximately fifteen years after the last modification of the consent decree, the plaintiffs brought an enforcement action. Id. at 851. In response, the defendants maintained that the plain- tiffs lacked standing to enforce the decree. Id. After reviewing the convo- luted history of the litigation, the court made a few notable observations. First, “[a]fter a case has become final by exhaustion of all appellate rem- edies, only an egregious want of jurisdiction will allow the judgment to be undone by someone who, having participated in the case, cannot complain that his rights were infringed without his knowledge.” Id. at 859 (quoting In re Factor VIII, 159 F.3d 1016, 1019 (7th Cir. 1998)). We de- termined that there was not “an egregious want of jurisdiction” when the district court originally entered the consent decree. Id. at 866. Rather, there had been significant changes in the Supreme Court’s approach to subject-matter jurisdiction since entry of the decree. Id. at 866–67. Fur- ther, we observed that when enforcing a consent decree that included “an injunction restricting the ability of a State or local government to meet its responsibilities,” “there is a need to ensure that changes in fac- tual or legal circumstances do not transform a once-just result into one that is unjust, illegal or overly burdensome and do not unnecessarily hinder a State in providing for the welfare of its citizenry.” Id. at 865. Given these circumstances, the proper action of the governmental de- (continued … ) 40 No. 18-1050

Conclusion For the foregoing reasons, we reverse the judgment of the district court and remand for proceedings consistent with this opinion. Indiana may recover its costs in this court. REVERSED AND REMANDED

( … continued) fendant is not to ignore or defy the decree, but to seek a modification of the decree based on the change in law. Id. at 868. We therefore remanded the case to the district court, inviting the governmental defendants to seek a modification of the decree under Rule 60(b). Id. The differences between our situation and the one in O’Sullivan are stark. There is no suggestion that, because of changes in the law, the dis- trict court initially had jurisdiction to award injunctive relief when the parties entered the Stipulated Judgment but has since lost such jurisdic- tion. At no point in this litigation did Mr. Lopez-Aguilar have standing to seek the prospective injunctive relief awarded by the district court. Moreover, this case is before us on direct appeal; it has not “become final by exhaustion of all appellate remedies.” Id. at 859. Nor is the State at- tempting to undo a judgment after it has had the opportunity to partici- pate in a case and have its rights fairly determined. Rather, the State seeks in the first instance an opportunity to ensure that its laws can op- erate within its most populous county in the manner contemplated by the Indiana legislature.