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Judicial Watch • Corrected Opposition to Motion to Dismiss

Corrected Opposition to Motion to Dismiss

Corrected Opposition to Motion to Dismiss

Page 1: Corrected Opposition to Motion to Dismiss

Category:General

Number of Pages:15

Date Created:July 2, 2013

Date Uploaded to the Library:February 20, 2014

Tags:Printz, custody, Sections, Sheriff, alien, Greer, officials, immigration, complaint, Congress, DHS, illinois, defendant, section, plaintiff, COUNTY, federal, State, states, court, united, EPA, IRS, ICE, CIA


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THE CIRCUIT COURT COOK COUNTY, ILLINOIS 
COUNTY DEPARTMENT, CHANCERY DIVISION 
 
BRIAN McCANN, 
   Plaintiff, Case Number: 10583 Hon. Mary Anne Mason   
vs. 
THOMAS DART, his official 
capacity Cook County Sheriff, 
   Defendant. 
 
PLAINTIFFS CORRECTED MEMORANDUM OPPOSITION DEFENDANTS 2-619.1 MOTION DISMISS PLAINTIFFS  
COMPLAINT CHANCERY FOR MANDAMUS AND DECLARATORY RELIEF 
 
Plaintiff Brian McCann (Plaintiff), counsel, respectfully submits this memorandum opposition Defendants motion dismiss. grounds therefor, Plaintiff states follows: 
MEMORANDUM Introduction. 
 Plaintiff, lifelong resident and citizen Cook County, brings this action remedy the refusal Cook County Sheriff Thomas Dart (Defendant) carry out his legal duties.  Specifically, Plaintiff alleges that Defendant refuses carry out two, specific legal duties imposed him federal and state law.  First, Plaintiffs Complaint asserts that, when served with notice detainer federal immigration officials, Defendant has legal duty maintain custody alien already Defendants custody for not more than hours beyond the time that the alien would otherwise released.  Second, Plaintiffs Complaint asserts that Defendant has legal duty refrain from prohibiting restricting communications the exchange information with federal immigration officials regarding the citizenship immigration status persons already Defendants custody. 
 Plaintiff brings two claims remedy Defendants refusal carry out these clear, non-discretionary legal duties.  The first seeks mandamus relief; the second seeks declaratory relief.  Both claims rest the long-established right residents and citizens bring suit compel public officials carry out their legal duties.  Because Plaintiff has pled that resident and citizen Cook County and that Defendant, Cook County public official, refuses carry out his legal duties, Plaintiffs standing bring this claim unassailable.  Because Plaintiff has amply pled claims for mandamus and declaratory relief, Plaintiffs Complaint well-founded and Defendants motion dismiss must denied. 
II. Factual Background. 
 Since the fall 2011, Defendant has refused honor notices detainer issued U.S. Immigration and Customs Enforcement (ICE) for aliens already Defendants custody.  Complaint  and 22-24.  Defendant also refuses allow ICE officials review records prisoners interview prisoners his custody order obtain information about prisoners citizenship immigration status.  Id.  20.  Defendant purports acting pursuant Cook County ordinance.  Id.  16, and 20.  Nonetheless, Cook County has applied for and received millions dollars from the federal government for incarcerating certain categories unlawfully present criminal aliens, including aliens subject immigration detainers, through program known the State Criminal Alien Assistance Program.  Id.  and 26.  Plaintiff respectfully refers the Court paragraphs and 16-26 his Complaint, which incorporates reference, for complete recitation the factual basis for his claims. 
III. Argument. Plaintiff plainly has standing. 
 
Plaintiffs standing bring this action unassailable. resident and citizen Cook County, Plaintiff has standing seek mandamus and declaratory relief remedy the refusal Cook County public official carry out his legal duties.  People rel. Newdelman Swank, 131 Ill. App. 73, (1st Dist. 1970); see also People rel. Gamber Board Supervisors the County Gallatin, 294 Ill. 579, 582 (1920); People rel. Faulkner Harris, 203 Ill. 272, 277 (1903); Hill Butler, 107 Ill. App. 721, 725 (4th Dist. 1982). the Court People rel. Newdelman held, Even though citizens may not have any legal rights directly affected the failure public officials carry out their legal duties, nevertheless such persons members the public have the right insist that public officials carry out their legal duties.  Id.  Defendant Cook County public official who refuses comply with his legal duties.  Plaintiff can sue him insist that does so.  Id.   
 Nowhere Greer Illinois Housing Development Authority, 122 Ill. 462 (1988) did the Court purport overturn least eighty-five years precedent holding that the residents and citizens Illinois have standing sue state and local public officials Illinois who refuse carry out their legal duties.  See, e.g., People rel. Faulkner, supra.  The mere fact that Newdelman and the other cases cited Plaintiff were decided before Greer does not mean that Greer overturned all these earlier cases.  The Court Greer did not explicitly even implicitly overturn them.  Greer simply addressed different theory standing. Greer, homeowners living near the site proposed housing project for very low-income tenants challenged decision the Illinois Housing Development Authority (IHDA) provide funding for the project and the agencys approval tenant-selection plan.  Greer, 
122 Ill. 470, 487.  The issue before the court was the proper test for assessing standing challenge the illegality administrative action.  Id. 487.  The IHDA argued that, addition injury fact, the plaintiffs also needed show that the interests they asserted their complaint lay within the zone interests protected the statute question, the Illinois Housing Development Act.  Id.  The Court held that zone interests analysis was not necessary and that the plaintiffs had standing.  Id. 491-92.    
 Plaintiff does not challenge the illegality administrative action agency. challenges Defendants refusal comply with his clear, non-discretionary legal duties.  Illinois law recognizes various types standing.  Martini Netsch, 272 Ill. App. 693, 695 (1st Dist. 1995) (The decision standing may differ depending the issue involved and the nature the relief sought.  Whether the plaintiff has standing sue determined from the allegations contained the complaint. (internal citations omitted)).  The plaintiffs Greer had standing under one legal theory.  Plaintiff has standing under different legal theory.  Defendants reliance Greer compares apples oranges.  Greer inapposite. Plaintiffs Complaint plainly alleges that Defendant refuses  
 comply with two clear legal duties. 
 
 Plaintiff alleges that Defendant refuses comply with two clear, specific, non-discretionary legal duties:  (1) the duty maintain custody alien, upon receipt notice detainer issued ICE, for period not more than hours beyond the time that the alien would otherwise released; and (2) the duty refrain from prohibiting restricting communications the exchange information with federal immigration officials about persons citizenship immigration status.1  Complaint  13-14, and 19-20.  Defendants addition these specific duties, Defendant has the general duties under Illinois law comply with federal law, support the constitutions the United States and the State Illinois, faithfully 
discharge the duties his office, and conserve the peace, prevent crime, and maintain the safety and order the citizens and Cook County.  Ill. Const., art. XIII,  and Ill. Comp. Stat.  5/3-6004 and 5/3-6021.  
Motion ignores the latter duty, which arises under U.S.C.  1373 and 1644. thus concedes that this duty exists.  Defendant only challenges the former legal duty. Defendant has legal duty maintain custody   
   alien upon receipt notice detainer. 
 
The duty maintain custody alien subject notice detainer set forth expressly Title 26, Section 287.7 the Code Federal Regulations.  Section 287.7 divided into five subsections.  Subsection (d) expressly addresses the temporary detention aliens.  The other subsections describe detainers generally and address matters such the authority issue notices detainer and the transmission records regarding aliens status conditions release. C.F.R.  287.7(b)-(c).  Subsection (d) states, its entirety: 
Upon determination the [U.S. Department Homeland Security] issue detainer for alien not otherwise detained criminal justice agency, such agency shall maintain custody the alien for period not exceed hours, excluding Saturdays, Sundays, and holidays order permit assumption custody the Department. C.F.R.  287.7(d) (emphasis added).   
 Subsection (d) could not any clearer.  The only verb the sentence shall maintain. its face, detainer issued under subsection (d) direction from the U.S. Department Homeland Security (DHS)  particular, ICE  criminal justice agency  this case Defendant  something. must maintain custody the alien subject the detainer for not more than hours beyond the time that the alien would otherwise released.  The duty could not clearer, and does not authorize, much less require, the exercise any discretion decision-making.  All that criminal justice agency  again, Defendant  must maintain custody the alien for not more than hours. makes difference what the 
detainer called.  Whether called notice, detainer, communication, something else, the duty clear:  the receiving agency official shall maintain custody the alien for period not exceed hours.  Even Defendant seems agree that the duty obligatory. refers detainer, albeit perhaps inadvertently, being requirement:  The hour detainer requirement contained C.F.R. 287.7(d).  Defs Mot. (emphasis added). 
 This plain reading subsection (d) reinforced least three federal statutes, two which, U.S.C.  1226 and 1357, are referenced expressly Section 287.7 authority for issuance detainers.  See C.F.R.  287.7(a).  Congress has exercised its extensive authority over immigration and the status and removal aliens mandating that aliens who have committed specified criminal offenses types criminal offenses  typically aggravated felonies two more crimes involving moral turpitude  shall taken into federal custody for immigration purposes when the alien released from the custody state local law enforcement officials. U.S.C.  1226(c).  Mandatory federal custody occurs without regard whether the alien released parole, supervised release, probation, and without regard whether the alien may arrested imprisoned again for the same offense. U.S.C.  1226(c).  Federal law also mandates that aliens suspected terrorist activity other activity that endangers national security shall taken into federal custody, shall aliens who have committed particular criminal offenses relating controlled substances. U.S.C.  1226a and 1357(d).  These statutes embod[y] the judgment Congress that such individual should not returned the community pending disposition his removal proceedings.  Saysana Gillen, 509 F.3d 713 (1st Cir. 2009).  The duty state and local law enforcement agencies honor 48-hour immigration detainers plainly furthers Congresss judgment that certain categories aliens should not returned the community.   
 The only court that has ever actually ruled the issue held that Section 287.7(d) imposes mandatory duty.  Galarza Szalzxyk, 2012 U.S. Dist. LEXIS 47023 (E.D. Pa. Mar. 30, 2012). issue Galaraza was claim individual held pursuant immigration detainer.  Specifically, the plaintiff Galaraza alleged that his Fourth Amendment rights were violated when the Sheriff Lehigh County continued detain him the county jail after the plaintiff had posted bail. finding Fourth Amendment violation, the Court held: any event, Lehigh County did not maintain custody plaintiff for more than the hours was required so.  Pursuant [DHS] Regulation 287.7(d), quoted above, because ICE issued detainer for plaintiff, the Lehigh County Prison criminal justice agency) was required maintain custody him after was not otherwise detained criminal justice agency for period not exceed hours order permit assumption his custody [DHS]. 
 
Galarza, 2012 U.S. Dist. LEXIS *56.  Because the county sheriff was acting pursuant obligation imposed federal regulations, the Court held that the county was not liable for the plaintiffs alleged deprivation his Fourth Amendment rights. 
 Defendant tries obfuscate the mandatory nature the duty set forth subsection (d) citing language subsection (a) and DHS form that uses the word request describe immigration detainer.2  Defendant claims that using request synonym for immigration detainer somehow changed the obligatory nature the words shall maintain custody Section 287.7(d) and makes compliance with immigration detainers purely voluntary.  The word request does not appear anywhere the text subsection (d).  Nor the words may, voluntary, optional. addition, while subsection (d) clear directing that criminal justice agencies shall maintain custody aliens subject immigration  Defendant also cites Operating Procedures uncertain date for DHS program known Secure Communities which DHS requests cooperation from local law enforcement agencies and declares that such cooperation vital.  Plaintiff agrees that such cooperation vital.  Plaintiff disputes that either government form agencys operating procedures have the force law can transform duty imposed law into purely voluntary request for cooperation.   
detainers, its face subsection (a) refers such agencies advising federal immigration officials prior release the alien, order for the Department arrange assume custody, situations when gaining immediate physical custody either impracticable impossible. C.F.R.  287.7(a). evident from the plain language subsection (a), the provision does not address the federal governments order for temporary detention certain aliens state local law enforcement agencies. addresses when and why state and local law enforcement agencies should inform federal immigration officials about aliens their custody.  The two provisions, although related, are distinct purpose and substance.  Defendants attempt equate them misplaced. 
 Nor does the decision Buquer City Indianapolis, 2011 U.S. Dist. LEXIS 68326 (S.D. Ind. June 24, 2011) save Defendant. issue Buquer were two provisions new Indiana law that purported authorize state and local law enforcement officers make warrantless arrests certain aliens and created new infraction for persons who knowingly intentionally offer accept consular identification cards valid forms identification.  The plaintiffs Buquer sought preliminary injunction prevent the new provisions from going into effect pending final determination their constitutionality.  The case did not call upon the Court decide  matter fact matter law  whether compliance with immigration detainers mandatory purely voluntary.  Rather, the language cited Defendant merely attempted summarize terms used federal immigration regulations that had been incorporated into the challenged state law.  Buquer, 2011 U.S. Dist. LEXIS 68326 (An understanding the materials phrases this statute necessary; that discussion ensues[.]). point did the Court Buquer actually adjudicate whether, upon receipt immigration detainer, state and local law enforcement agencies are obligated detain aliens for hours beyond the time when the aliens would otherwise released from criminal custody. addition being incorrect  ignored the crucial shall maintain custody language the regulation  the Courts summary immigration terms was nothing more than that. sum, the plain language C.F.R  287.7(d) mandates that state and local law enforcement agencies honor immigration detainers.  None the language the regulation, forms guidance manuals cited Defendant changes the mandatory nature the direction criminal justice agencies that, upon receipt immigration detainer, these agencies shall maintain custody alien subject detainer for not more than hours beyond the time when the alien would otherwise released.  There nothing voluntary about the words shall maintain custody used the regulation. Printz United States does not apply. 
Defendants other argument which seeks avoid the legal duty imposed him C.F.R.  287.7(d) claim that the duty unconstitutional.  Defendant does not dispute that the federal government has broad, undoubted power over the subject immigration and the status aliens.  Arizona United States, U.S. __, 132 Ct. 2492, 2498 (2012).  Nor does dispute that Congress has plenary power enact statutes concerning the subject immigration and the status aliens.  Nor does seriously contend that federal agencies cannot promulgate regulations concerning immigration and the status aliens, that any such regulations not have preemptive effect.  They do.  See, e.g., Hillsborogh County Automated Medical Laboratories, 471 U.S. 707, 713 (1985).  Rather, Defendant asserts that that federal government may not compel him administer enforce federal regulatory program.  The error Defendants argument that not being compelled administer enforce federal regulatory program. not being compelled enforce administer immigration law.  The 
duty imposed him C.F.R.  287.7(d) duty nothing more than what already does Sheriff, which run the Cook County jail system.  Complaint   Enforcing immigration law and remains the province the federal government. this regard, Defendants reliance Printz United States, 521 U.S. 898 (1997) misplaced. issue Printz was the validity the Brady Act, federal law that, among other things, required local law enforcement agencies receive and review certain firearm transfer forms from firearm dealers, perform background checks, and determine whether proposed firearm transfer was legal illegal.  The Brady Act also required local law enforcement agencies prepare written statements support any finding firearm ineligibility.  None these tasks were tasks that local law enforcement agencies had been already performing.  They were new tasks created new federal statute, but imposed local law enforcement agencies. 
 First, unlike Printz, the federal government, not Defendant, that administering and enforcing immigration laws.  Defendant not being compelled receive and review immigration records documentation about alien, identify aliens immigration status, determine whether alien has violated any immigration laws, decide whether alien subject removal from the United States.  Nor being required undertake any other task that constitutes administering and enforcing immigration laws.  Defendant only being required maintain custody persons already his custody for hours beyond when such persons would otherwise released.3 course, possible that federal immigration officials will available take custody alien subject immigration detainer less than hours. reality, Defendant may only required hold the individual for very brief, additional period time. 
 Second, Defendant already has custody these persons.  Immigration detainers only require Defendant continue maintain custody them for not more than hours instead 
releasing them into the community. this instance, the federal government not requiring Defendant locate the alien, arrest the alien, investigate and prosecute the alien, even take custody the alien. merely ordering Defendant continue what already doing for at-most two more days that federal immigration officials have the opportunity take custody the alien, after which the federal immigration authorities, not Defendant, will determine whether enforce  not enforce  the immigration laws against the alien. 
 Third, Printz did not arise the context field which federal authority preeminent.  Gun control subject matter over which the states and the federal government share concurrent powers.  The federal government, however, has broad, undoubted power over the subject immigration and the status aliens.  Arizona, 132 Ct. 2498.  Federal governance immigration and alien status extensive and complex.  Id. 2499.  Federal authority over immigration has long been described preeminent.  Toll Moreno, 458 U.S. (1982); Plyler Doe, 427 U.S. 202, 235-36 (1982) (Blackmun, J., concurring).  This authority rests, part, the [federal] governments constitutional power establish uniform Rule Naturalization, U.S. Const., Art.  cl. and its inherent power sovereign control and conduct relations with foreign nations.  Arizona, 132 Ct. 2498.  The fact that U.S.C.  287.7(d) arises the context immigration law, field which federal authority preeminent, makes Printz readily distinguishable. 
 Fourth, and also unlike with the Brady Act, Defendant not being forced to absorb the financial burden implementing federal regulatory program.  Printz, 521 U.S. 929. Plaintiff alleges his Complaint, the federal government provides funding state and local governments that incarcerate certain categories undocumented criminal aliens, including undocumented criminal aliens who are being held pursuant immigration detainer.  
Complaint  11.  Because the Court must accept all well pleaded facts and all reasonable inferences able drawn from those facts, the Court assume that Defendant would not financially burdened were maintain custody the aliens for not more than hours.  See Iverson Scholl, Inc., 136 Ill. App. 962, 965 (1st Dist. 1985). 
 Defendants constitutional argument has been tried previously and was soundly rejected. City New York United States, 179 F.3d (2d Cir. 1999), the Court rejected constitutional challenge two federal statutes  U.S.C.  1373 and 1644  asserted New York City.  Eleven days after Sections 1373 and 1644 were enacted Congress, New York City filed suit for declaratory and injunctive relief claiming that the two federal statutes violated the Tenth Amendment.  Id. 33.  Specifically, New York City argued that the scope state sovereignty under the Amendment includes the power choose not participate federal regulatory programs and that such power turn includes the authority forbid state local agencies, officials, and employees from aiding such program even voluntary basis.  Id. 34. rejecting New York Citys argument and holding that Sections 1373 and 1644 did not violate the sovereignty principles set forth Printz, the Court declared: the case [Sections 1373 and 1644], Congress has not compelled state and local governments enact administer any federal regulatory program.  Nor has affirmatively conscripted states, localities, their employees into the federal governments service.  These Sections not directly compel states localities require prohibit anything.  Rather, they prohibit state and local governmental entities officials only from directly restricting the voluntary exchange immigration information with the INS.  
 
Id. (citing Printz, 521 U.S. 917).  Defendants constitutional challenge Section 287.7(d) fares better.  Section 287.7(d) does not compel Defendant enact administer any federal regulatory program.  Nor does affirmatively conscript Defendant into the federal governments service. only requires Defendant what already does, which hold 
prisoners already his custody, albeit for brief period time after would otherwise release them, order allow federal immigration authorities assume custody. Defendant has legal duty refrain from restricting  
communications the exchange information. 
 
 Although Defendant does not challenge that has legal duties under U.S.C.  1373 and 1644, those duties clearly exist.  Federal law indisputably imposes legal duty Defendant refrain from prohibiting any way restricting communications the exchanging information with federal immigration officials about persons citizenship immigration status. U.S.C.  1373 and 1644.  Specifically, Section 1373(a) states:   
Notwithstanding any other provision Federal, State, local law, Federal, State, local government entity official may not prohibit, any way restrict, any government entity official from sending to, receiving from, [federal immigration officials] information regarding the citizenship immigration status, lawful unlawful, any individual. 
 
With respect Section 1373(a)s application this case, Defendant, Cook County official, may not prohibit any way restrict the Cook County Sheriffs Office (CCSO), government entity, any official the CCSO, from sending to, receiving from, federal immigration officials any information about citizenship immigration status, lawful unlawful, any person his custody. 
 Similarly, Section 1644 states: 
 
Notwithstanding any other provision Federal, State, local law, State local government entity may prohibited, any way restricted, from sending receiving from [federal immigration officials] information regarding the immigration status, lawful unlawful, alien the United States. 
 
Thus, under U.S.C.  1644 well, Defendant may not prohibit any way restrict the CCSO, which, again, local government entity, from sending to, receiving from, federal 
immigration officials information regarding the immigration status, lawful unlawful, any alien his custody. addition, Section 1373(b) states:   
 
Notwithstanding any other provision Federal, State, local law, person agency may prohibit, any way restrict, Federal, State, local government entity from doing any the following with respect information regarding the immigration status, lawful unlawful, any individual: 
 
 (1) Sending such information to, requesting receiving such    information from, [federal immigration officials]. 
 (2) Maintaining such information. 
 (3) Exchanging such information with any other Federal, State,  
  local government entity. 
 
Under this provision, Defendant also may not prohibit, any way restrict, the CCSO, which, again, local government entity, from sending, requesting, receiving information from federal immigration officials about the immigration status, lawful unlawful, any alien Defendants custody.  Nor may prohibit any way restrict the CCSO from exchanging such information with federal immigration officials. 
 Plaintiffs Complaint plainly alleges that Defendant refuses comply with these duties prohibiting federal immigration officials from having access prisoners the records prisoners Defendants custody.  Complaint  20.  Plaintiffs Complaint also plainly alleges that Defendant prohibits CCSO personnel and employees from responding inquiries federal immigration officials about prisoners citizenship immigration status and from communicating with federal immigration officials about the incarceration status release dates prisoners his custody.  Complaint  20. 
 Each these statutes imposes clear and mandatory legal duties Defendant. prohibiting CCSO personnel employees from responding inquiries federal immigration officials about prisoners citizenship immigration status, Defendant defying his duties under  
Sections 1373(a), (b)(1), and (b)(3) and Section 1644. prohibiting federal immigration officials from having access prisoners the records prisoners Defendants custody using CCSO facilities for investigative interviews obtain information about prisoners citizenship immigration status, Defendant also defying his duties under  Section 1373(b)(3). 
 Defendant cannot complain, does with respect his duty maintain custody aliens subject 48-hour immigration detainers under Section 287.7, that Congress cannot impose such duties him.  Again, the Court City New York expressly rejected such challenge.  Plaintiffs claim for mandamus and declaratory relief arising from Defendants refusal carry out his legal duties under Sections 1373 and 1644 well-pled. 
IV. Conclusion. 
 For the foregoing reasons, Plaintiff respectfully requests that Defendants motion dismiss denied. 
Dated: July 2013  
 
 
      
Christine Svenson 
Ill. Bar No. 6230370 
Cook County Attorney No. 44565 
SVENSON LAW OFFICES 
505 LaSalle Street, Suite 350 
Chicago, 60654 
Tel:  (312) 467-2900 
Fax:  (312) 467-2902 
Respectfully submitted, 
 
 
 
      
Paul Orfanedes 
Ill. Bar No. 6205255 
Cook County Attorney No. 43158 
JUDICIAL WATCH, INC. 
425 Third Street, S.W., Suite 800 
Washington,  20024 
Tel:  (202) 646-5172 
Fax:  (202) 646-5199 
 
Counsel for Plaintiff