Ramon v. Short

2020 MT 69, 460 P.3d 867, 399 Mont. 254

• Court: Montana Supreme Court
• Decided: March 25, 2020
• Docket: DA 18-0661
• Status: Published

Opinion

03/25/2020

DA 18-0661 Case Number: DA 18-0661

IN THE SUPREME COURT OF THE STATE OF MONTANA

2020 MT 69

AGUSTIN 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: oe,,6tA- -if __________________________________________ 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