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PRECEDENTIAL UNITED STATES COURT APPEALS FOR THE THIRD CIRCUIT _____________ No. 12-3991 _____________ ERNESTO GALARZA, Appellant MARK SZALCZYK; CITY ALLENTOWN; LEHIGH COUNTY; GREG MARINO; CHRISTIE CORREA _____________ Appeal from the United States District Court for the Eastern District Pennsylvania (Civil Action No. 10-cv-6815) District Judge: Hon. James Knoll Gardner _____________ Argued: October 10, 2013 Before: FUENTES, COWEN, and BARRY, Circuit Judges. (Opinion Filed: March 2014) Mary Catherine Roper, Esq. Molly Tack-Hooper, Esq. American Civil Liberty Union Foundation Pennsylvania P.O. Box 40008 Philadelphia, 19106 Omar Jadwat, Esq. Esha Bhandari, Esq. American Civil Liberties Union Foundation Immigrants Rights Project 125 Broad Street, 18th Floor New York, 10004 Jonathon Feinberg, Esq. Kairy, Rudovsky, Messing Feinberg LLP 718 Arch Street, Suite 501 South Philadelphia, 19106 Cecilia Wang, Esq. Katherine Desormeau, Esq. [ARGUED] American Civil Liberties Union Foundation Immigrants Rights Project Drumm Street San Francisco, 94111 Seith Kreimer, Esq. 3400 Chestnut Street Philadelphia, 19104 Attorneys for Appellant Ernesto Galarza Thomas Caffrey, Esq. [ARGUED] 532 Walnut Street Allentown, 18101 Attorney for Appellee Lehigh County Christopher Lasch, Esq. University Denver Envirorment Center Environmental Law Clinic 2255 East Evans Avenue Suite 335 Denver, 80298 Rebecca Sharpless, Esq. University Miami School Law E257 1311 Miller Drive Coral Gables, 33146 Attorneys for Amicus Appellant Law Professors and Scholars who Teach, Research, and Practice the Area Immigration and Nationality Law and Criminal Law Andrew Nichols, Esq. Winston Strawn 1700 Street, N.W. Washington, 2006 Attorney for Amicus Appellant National Immigration Project the National Lawyers Guild _____________ OPINION THE COURT _____________ FUENTES, Circuit Judge. Ernesto Galarza U.S. citizen who was arrested for drug offense, posted bail, and instead being released, was held custody Lehigh County under immigration detainer issued federal immigration officials. Three days after Galarza posted bail, immigration officials learned that was U.S. citizen. The detainer was withdrawn and Galarza was released. Galarza then filed this 1983 action against, relevant part, Lehigh County, contending that Lehigh County detained Galarza without probable cause for more than hours, without notice the basis his detention the ability contest it. The District Court dismissed the complaint against Lehigh County the basis that could not held responsible for Galarzas detention because was compelled follow the immigration detainer. appeal, Galarza argues that under plain reading the relevant federal regulation, immigration detainers are permissive and, hold otherwise, would violate the anti-comandeering principles inherent the Tenth Amendment. agree with Galarza that immigration detainers not and cannot compel state local law enforcement agency detain suspected aliens subject removal. Accordingly, vacate and remand for further proceedings. BACKGROUND1 The District Court had federal question jurisdiction over this case pursuant U.S.C. 1331. This Court has appellate jurisdiction under U.S.C. 1291. Because are reviewing the appeal grant motion dismiss under Rule 12(b)(6), our review plenary. Great Mining Mineral Co. Fox Rothschild LLP, 615 F.3d 159, 163 (3d Cir. 2010). For the same reason, state the facts the amended complaint the light most favorable the non-moving party below, Galarza. See Grammer John Kane Regl Ctrs.-Glen Hazel, 570 F.3d 520, 523 (3d Cir. 2009). This case arises out Ernesto Galarzas detention the Allentown Police Department and the Lehigh County Prison November 2008. Galarza U.S. Citizen, born Perth Amboy, New Jersey. Hispanic man Puerto Rican heritage. November 20, 2008, Galarza was performing construction work house Allentown, Pennsylvania. Sometime that day, the contractor the construction site sold cocaine undercover Allentown Police detective, Christie Correa. Detective Correa arrested the contractor, along with Galarza and two other employees who were working the site. All were charged with conspiracy deliver cocaine violation Pennsylvania law. Two the other workers arrested were citizens the Dominican Republic, and the third was citizen Honduras. the time Galarzas arrest, had wallet, which contained his Pennsylvania drivers license, his Social Security Card, debit card, and his health insurance card. After his arrest, Galarza was detained the Allentown Police Department. The Criminal Complaint prepared Correa the time Galarzas arrest listed Galarzas place birth Perth Amboy, N.J. and contained Galarzas Social Security Number and date birth. accordance with Allentowns policy contact Immigration and Customs Enforcement (ICE)2 whenever persons arrested are suspected being aliens subject deportation, Correa called ICE and provided immigration officials with Galarzas name, date and place birth, ethnicity, and Social Security number. Galarza contends that, making this call, Correa gave ICE reason believe that she suspected Galarza had given false information about his identity. ICE the investigative arm the Department Homeland Security (DHS). DHS assumed the responsibilities the former Immigration and Naturilization Service (INS) 2002. See Homeland Security Act 2002, U.S.C. 101 seq. That evening, Galarza was transported Lehigh County Prison and his bail was set $15,000. The following morning, Friday, November 21, Galarza went through the booking process, and during this process, told prison officials that was born New Jersey. The officials took his wallet, containing his drivers license, Social Security Card, debit card, and health insurance card. some point that day, ICE Agent Mark Szalczyk, acting the information relayed Correa, filed immigration detainer with Lehigh County Prison. The detainer described Galarza suspected alien and citizen the Dominican Republic. The detainer read: Investigation has been initiated determine whether this person subject removal/deportation from the United States. requested that you: Please accept this notice detainer. This for notification purposes only. Federal regulations CFR 287.7) require that you detain the alien for period not exceed hours (excluding Saturdays, Sundays and Federal holidays) provide adequate time for ICE assume custody the alien. You may notify ICE calling (610) 374-0743 during business hours 802 872-6020 after hours emergency. App. 105. The detainer was accompanied neither warrant, affidavit probable cause, nor removal order. That same day, surety company posted bail for Galarza, and Lehigh County Prison official told Galarza that would released. Shortly thereafter, the same official informed Galarza that would not released because was the subject detainer. When Galarza protested that there should detainer preventing his release, the official told Galarza that would have wait through the weekend until Monday, November speak with counselor. Galarza had not been interviewed ICE provided with copy the detainer. was not until that Monday, three days after his arrest, that Lehigh County Prison counselor told Galarza for the first time that the detainer holding him was immigration detainer filed ICE. Galarza immediately protested that was U.S. Citizen, and urged the counselor retrieve his wallet from the property room order look Galarzas drivers license and Social Security Card, but the counselor refused. Shortly thereafter, Galarza met with two ICE officers, who questioned him extensively about his statement that was born New Jersey. Galarza gave the immigration officials his Social Security Number and date birth. The officials left and returned inform Galarza that the detainer was being lifted. The detainer was fact removed 2:05 Monday, November 24. Lehigh County did not release him until more than six hours later, about 8:30 pm. Galarza was eventually acquitted jury the charge stemming from his November 20, 2008 arrest. Galarza filed two complaints: the first against Lehigh County, the City Allentown, and various individual federal and municipal defendants for violations his constitutional rights, and the second against the United States under the Federal Tort Claims Act (FTCA), U.S.C. 1346(b). These cases were consolidated. All defendants the consolidated case, except the United States, moved dismiss under Rule 12(b)(6). Galarza Szalczyk, 2012 1080020, (E.D. Pa. Mar. 30, 2012). The District Court held that the claims against ICE Agent Szalczyk and Allentown Detective Correa, for violations the Fourth Amendment and the Equal Protection Clause, could forward and that these officials were not entitled qualified immunity. Id. *2. The District Court dismissed procedural due process claim against ICE Agent Szalczyk qualified immunity grounds and dismissed all claims against another ICE official, the City Allentown, and Lehigh County. Id. relevant part, the District Court determined that Galarzas continued detention after posted bail constituted seizure within the Fourth Amendment and that the seizure was unsupported probable cause. Id. *9-14. Specifically, the District Court found that Galarza had stated Fourth Amendment claim against Correa and Szalczyk because these officers lacked probable cause issue immigration detainer. The District Court reasoned: [t]he fact that Mr. Galarza Hispanic and was working construction site with three other Hispanic mentwo whom are citizens foreign countries and another who claimed have been born Puerto Rico but citizen the Dominican Republic does not amount probable cause believe that Mr. Galarza alien not lawfully present the United States. Id. *14. also denied these officers motions dismiss these claims grounds qualified immunity. Id. *14-15. However, the District Court dismissed the Fourth Amendment and procedural due process claims against Lehigh County the ground that neither the policies identified plaintiffs Amended Complaint unconstitutional [because] both are consistent with federal statutes and regulations. Id. *18. doing so, the District Court relied C.F.R. 287.7, concluding that detainers issued pursuant this regulation impose mandatory obligations state local law enforcement agencies (LEAs), including municipalities, follow such detainer once received. Id. *19. The District Court also dismissed Galarzas procedural due process claim the ground that Lehigh County complied with the federal regulation setting the time limits detention because did not hold Galarza for more than hours, not including weekends. Id. The Court then dismissed the procedural due process claim against Szalczyk grounds the qualified immunity doctrine, noting that even the period detention specified the regulation were found unconstitutional, would not clear every reasonable officer that the detention for period expressly provided federal regulation was unlawful. Id. *18. Following the issuance the District Court opinion, Galarza reached settlement with the remaining individual defendants, the City Allentown, and the United States, resulting final order dismissing the case all defendants. Galarza appeals only the dismissal his complaint against Lehigh County. II. DISCUSSION Galarzas claims against Lehigh County arise under U.S.C. 1983. establish municipal liability under 1983, Galarza must plead two elements: first, that was deprived rights, privileges, immunities secured the Constitution and laws, and, second that the deprivation those rights was caused official government policy custom. Mulholland Govt Cnty. Berks, Pa., 706 F.3d 227, 238 (3d Cir. 2013). Regarding his Fourth Amendment rights, Galarza contends that his detention resulted from Lehigh Countys stated policy and practice enforcing all immigration detainers received from ICE, regardless whether ICE had, even claimed have, probable cause detain the suspected immigration violator. support his claim, Galarza contends that: (1) when Lehigh County Prison counselor first told Galarza that had been held immigration detainer, the official refused look into Galarzas stated proof that was U.S. Citizen, instead waiting for ICE officers arrive; (2) Lehigh County Prison honored the ICE detainer this case less than probable cause; and (3) ICE has history issuing and then cancelling improper ICE detainers lodged against inmates the Lehigh County Prison. Regarding his procedural due process claim, Galarza contends that, under Lehigh Countys policies, was held for three days without any notice the basis for his detention meaningful opportunity explain that was U.S. Citizen, despite his repeated requests contest his detention. oral argument, counsel for Lehigh County conceded that the policies alleged would unconstitutional, and that Lehigh Countys sole basis for seeking dismissal Galarzas claims the allegedly mandatory nature ICE detainers. this light, the only question appeal whether Galarza has sufficiently pleaded facts support his claims that Lehigh Countys unconstitutional policies customs caused the deprivations his Fourth Amendment and procedural due process rights. Interpretation C.F.R. 287.73 3It true, the dissent points out, that neither the U.S. Government any its agencies continues party this appeal. However, the dissent also recognizes, the U.S. Government, well two its agents, were parties this case when the District Court articulated the principle that review here. See Galarza Szalczyk, 10-cv-6815, Docs. (July 26, Aug. 22, 2012, E.D. Pa.) (orders dismissing the claims against ICE Agent Scalczyk and the U.S. Government); Galarza, 2012 1080020 (dismissing claims against ICE Agent Gregory Marino). any event, further explained supra, Part II.A., doubt that the U.S. Government and its immigration agencies would disagree with our interpretation the regulation. fact, the Office Immigration Litigation the Department Justice representing Janet Napolitano, then Secretary the Department Homeland Security, and other federal officials, admitted request for admission recent litigation that ICE has legal authority require state o[r] local law enforcement detain individual during the 48-hour detention period. Supp. App. (Apr. 2013); see Jose Jimenez Moreno Janet Napolitano,11-cv-5452 (N.D. Ill., Nov. 2011) (date case filing). The parties dispute centers whether immigration detainers issued pursuant C.F.R. 287.7 impose mandatory obligations state and local LEAs detain suspected aliens subject removal. The regulation issues provides, relevant part, follows: (a) Detainers general. Detainers are issued pursuant sections 236 and 287 the Act and this chapter Any authorized immigration officer may any time issue Form I247, Immigration DetainerNotice Action, any other Federal, State, local law enforcement agency. detainer serves advise another law enforcement agency that the Department seeks custody alien presently the custody that agency, for the purpose arresting and removing the alien. The detainer request that such agency advise the Department, prior release the alien, order for the Department arrange assume custody, situations when gaining immediate physical custody either impracticable impossible. (d) Temporary detention Department request. Upon determination the Department 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(a), (d) (emphasis added). Lehigh County argues that the phrase shall maintain custody contained 287.7(d) means that detainers issued under 287.7 are mandatory. Lehigh County acknowledges that 287.7(d) titled Temporary detention Department request and that 287.7(a) provides that [t]he detainer request. However, Lehigh County maintains this language overshadowed the use the word shall 287.7(d). According Lehigh County, the word shall means that the request not really request all, but order. Meaning, Lehigh County cannot held responsible for Galarzas three-day detention after posted bail. Galarza argues that the word shall serves only inform agency that otherwise decides comply with ICE detainer that should hold the person longer than hours. believe that Galarzas interpretation correct. The words shall maintain custody, the context the regulation whole, appear next the use the word request throughout the regulation. Given that the title 287.7(d) Temporary detention Department request and that 287.7(a) generally defines detainer request, hard read the use the word shall the timing section change the nature the entire regulation. Cf. Almendarez-Torres United States, 523 U.S. 224, 234 (1998) (observing that statutes title and sections heading may considered resolving doubt about provisions meaning). However, even credit that the use the word shall raises some ambiguity whether detainers impose mandatory obligations, this ambiguity clarified numerous fronts. First, U.S. Court Appeals has ever described ICE detainers anything but requests. Second, provisions the Immigration and Nationality Act (INA), U.S.C. 1101 seq., authorize federal officials command local state officials detain suspected aliens subject removal. Lastly, all federal agencies and departments having interest the matter have consistently described such detainers requests. will address each these factors turn. First the case law. All Courts Appeals have commented the character ICE detainers refer them requests part informal procedure. See, e.g., Ortega U.S. Immigration Customs Enforcement, 737 F.3d 435, 438 (6th Cir. Dec. 10, 2013) (noting that federal immigration officials issue detainers local LEAs asking the institution keep custody the prisoner for the [federal immigration] agency let the agency know when the prisoner about released); Liranzo United States, 690 F.3d 78, (2d Cir. 2012) (noting that ICE issued immigration detainer [jail] officials requesting that they release Liranzo only into ICEs custody that could removed from the United States); United States Uribe-Rios, 558 F.3d 347, 350 n.1 (4th Cir. 2009) (defining detainers request that another law enforcement agency temporarily detain alien permit immigration officials assume custody (citing C.F.R. 287.7)); United States Female Juvenile, A.F.S., 377 F.3d 27, (1st Cir. 2004) (noting that detainer serves request that another law enforcement agency notify the INS before releasing alien from detention (citing C.F.R. 287.7(a))); Giddings Chandler, 979 F.2d 1104, 1105 n.3 (5th Cir. 1992) (describing the procedure under 287.7 an informal [one] which the INS informs prison officials that person subject deportation and requests that officials give the INS notice the persons death, impending release, transfer another institution). Second, Congresss only specific mention detainers appears INA 287, U.S.C. 1357(d). The Act does not authorize federal officials command state local officials detain suspected aliens subject removal. Moreover, reviewing this statute, the Supreme Court has noted that 1357(d) request for notice prisoners release, not command (or even request) LEAs detain suspects behalf the federal government. Arizona United States, 132 Ct. 2492, 2507 (2012) (observing that [s]tate officials can also assist the Federal Government responding requests for information about when alien will released from their custody. See 1357(d).). Contrary Lehigh Countys assertion, ICEs (and its precursor INSs) policy statements also hold persuasive weight this context. See Mercy Catholic Med. Ctr. Thompson, 380 F.3d 142, 155 (3d Cir. 2004). Since least 1994, and perhaps early 1988, ICE (and its precursor INS) have consistently construed detainers requests rather than mandatory orders. 1994, when responding comments provided the process administrative Notice and Comment before Final Rule change amending C.F.R. 287.7, the INS wrote that, A detainer the mechanism which the Service requests that the detaining agency notify the Service the date, time, place release alien who has been arrested convicted under federal, state, local law. Fed. Reg. 42406, 42407 (Aug. 17, 1994). Moreover, 2010 policy memo, ICE describes detainer request that the LEA maintain custody alien who would otherwise released for period not exceed hours.4 This description restated ICEs website under Frequently Asked Questions about ICE detainers response the specific question What immigration detainer?5 response local officials letter asking whether localities are required hold individuals ICE, Interim Policy Number 10074.1: Detainers, 2.1 (Aug. 2010), available http://cironline.org/sites/default/files/legacy/files/ICEdetainerpolicy.PDF (last visited Dec. 13, 2013). ICE, ICE Detainers: Frequently Asked Questions, http://www.ice.gov/news/library/factsheets/detainer-faqs.htm (last visited Dec. 23, 2013) (noting that immigration detainer serves, relevant part, request that the LEA maintain custody alien who would otherwise released for period not exceed hours). pursuant [ICE detainers], senior ICE official responded: ICE views immigration detainer request that law enforcement agency maintain custody alien who may otherwise released[.]6 And 2010 briefing the Congressional Hispanic Caucus, agency representatives told congressional staff that local [law enforcement] are not mandated honor detainer, and some jurisdictions they not.7 Letter from David Venturella, Secure Communities Assistant Director, ICE, Miguel Mrquez, Santa Clara County Counsel, 2(a) (Sept. 27, 2010) (emphasis added), available http://www.scribd.com/doc/38550589/ICELetter-Responding-to-SCC-Re-S-Comm-9-28-10 (last visited Dec. 23, 2013). ICE FOIA 2674.020612, Draft Memorandum David Venturella, Secure Communities Assistant Director, ICE, Secure Communities Briefing (Congressional Hispanic Caucus) (Oct. 28, 2010), available http://altopolimigra.com/wpcontent/uploads/2011/12/ICE-FOIA-2674.020612.pdf (last visited Dec. 23, 2013). These policy statements are also consistent with ICEs (and previously INSs) litigation position that detainers are requests notifications. For example, 1998, the INS argued that detainer issued was not detainer but merely serve[d] advise [a] correctional facility that the INS may find [an inmate] excludable and request[ed] that the institution inform the INS Vargass expected release. Vargas Swan, 854 F.2d 1028, 1030 (7th Cir. 1988). Furthermore, the immigration agency there noted that the face the detainer states that for notification purposes only, and that was nothing more than an internal administrative mechanism, accompanied neither warrant arrest nor order show cause. Id. rebut the evidence that detainers are not mandatory commands other LEAs, Lehigh County suggests that these statements are contradicted the language the detainer form that was issued Galarzas case. Lehigh Countys argument here similar the one made regarding the regulation itself: Because the detainer issued Lehigh County stated that Federal regulations CFR 287.7) require that you detain the alien for period not exceed hours (excluding Saturdays, Sundays and Federal holidays), the detainer was mandatory. App. 105. Again, Lehigh County overlooks the first part the detainer filed with Lehigh County, which read the time, It requested that you: Please accept this notice detainer. This for notification purposes only. Id. (emphasis added). Lehigh County seeks bolster its argument highlighting the fact that the detainer forms were altered 2010 that the word require does not appear anywhere the current detainer form. The form now reads: IT REQUESTED THAT YOU: Maintain custody the subject for period NOT EXCEED HOURS.8 believe that, its own, this alteration the detainer form does not support Lehigh Countys conclusion that ICEs position changedthe alteration also consistent with the view that ICE was merely clarifying its detainer form reflect its longstanding interpretation the regulation. short, the position federal immigration agencies has remained constant: detainers are not mandatory.9 DHS, IMMIGRATION DETAINER-NOTICE ACTION, available http://www.ice.gov/doclib/secure-communities/pdf/immigration-detainer-form.pdf (last visited Dec. 23, 2013). further respond Lehigh Countys argument that these policy statements and litigation positions should not relevant our analysis, note that the particular weight give ICEs and INSs policy statements depends number factors. These include the thoroughness evident [their] consideration, the validity [their] reasoning, [their] consistency with earlier and later pronouncements, and all those factors which give [them] power persuade, lacking power control. Mercy, 380 F.3d 155 (internal quotation marks omitted). ICEs and INSs policy statements and litigation positions are probative here because they are internally consistent over lengthy period time and align with the most logical reading the regulation, thus lending further support our determination that ICE detainers are indeed permissive, not mandatory. Constitutional Concerns Even there were any doubt about whether immigration detainers are requests and not mandatory orders local law enforcement officials, settled constitutional law clearly establishes that they must deemed requests. When confronted with two plausible interpretations statute, one which could require the Court interpret the regulation unconstitutional and one which poses constitutional problem, are obliged adopt the latter interpretation, unless such construction plainly contrary the intent Congress. Edward DeBartolo Corp. Fla. Gulf Coast Bldg. Const. Trades Council, 485 U.S. 568, 575 (1988). Under the Tenth Amendment, immigration officials may not order state and local officials imprison suspected aliens subject removal the request the federal government. Essentially, the federal government cannot command the government agencies the states imprison persons interest federal officials. have previously recognized, all powers not explicitly conferred the federal government are reserved the states, maxim reflected the text the Tenth Amendment. Natl Collegiate Athletic Assn (NCAA) Governor N.J., 730 F.3d 208, 227 (3d Cir. 2013). follows that any law that commandeers the legislative processes [and agencies] the States directly compelling them enact and enforce federal regulatory program beyond the inherent limitations federal power within our dual system. Id. (quoting Hodel Va. Surface Mining Reclamation Assn, 452 U.S. 264, 283 (1981)) (internal quotation marks omitted). other words, conclusion that detainer issued federal agency order that state and local agencies are compelled follow, inconsistent with the anti-commandeering principle the Tenth Amendment. two occasions the Supreme Court has struck down portions federal laws that compelled states local state agencies anti-commandeering grounds. The first case was New York United States, 505 U.S. 144 (1992), which concerned federal law regulate the disposal radioactive wastes the states. The most problematic aspect this complex regulatory scheme was the requirement that state take title radioactive material, that state could not arrange for disposal the hazardous material within specified date. Id. 153-54. The Supreme Court struck down the take title provision based the idea that Congress may not simply commandeer the legislative processes the States directly compelling them enact and enforce federal regulatory program. Id. 161 (quoting Hodel, 452 U.S. 288) (alterations omitted). stated NCAA, the Court concluded that the take title provision did, fact, compel the states either enact regulatory program, expend resources taking title the waste. NCAA, 730 F.3d 229 (citing New York, 505 U.S. 176). The Court also observed that the anti-commandeering principle was designed, part, stop Congress from blurring the line accountability between federal and state officials and from skirting responsibility for its choices foisting them the states. Id. (citing New York, 505 U.S. 168). The Court next applied this anti-comandeering principle Printz United States, 521 U.S. 898 (1997), invalidate provisions the Brady Handgun Violence Prevention Act that compelled local authorities certain states conduct background checks persons applying purchase guns. Printz relevant determining whether federal officials can order local and state LEAs hold suspected aliens subject removal detention behalf the federal government. The Court noted that, [t]he power the Federal Government would augmented immeasurably were able impress into its serviceand cost itselfthe police officers the States. Id. 922. The Court concluded that Congress may neither issue directives requiring the States address particular problems, nor command the States officers administer enforce federal regulatory program. Id. 935. The Court was clearly concerned that portions the Brady Act required states absorb the financial burden implementing federal regulatory program and tak[e] the blame for its defects. Id. 930. light these principles, clear that reading 287.7 mean that federal detainer filed with state local LEA command detain individual behalf the federal govenment, would violate the anti-commandeering doctrine the Tenth Amendment. New York and Printz, immigration officials may not compel state and local agencies expend funds and resources effectuate federal regulatory scheme. The District Courts interpretation 287.7 compelling Lehigh County detain prisoners for the federal government contrary the Federal Constitution and Supreme Court precedents. There meaningful distinction between the Brady Act provisions and the regulation issue here which would, according Lehigh County, require state and local governments spend public funds order detain suspects behalf the federal government for the 48-hour period. fact, the federal government has made clear that local LEAs have foot the bill, providing that [n]o detainer issued result determination made under this chapter shall incur any fiscal obligation the part the Department. C.F.R. 287.7(e). Even though, the Amici Curiae Law Professors explain, the issue commandeering not one degree, [s]uch direct federal control over state officials far exceeds the regulatory regime Printz invalidated. Br. for Law Professors 14. Furthermore, the command detain federal prisoners state expense exactly the type command that has historically disrupted our system federalism. Galarza points out, the federal government has made requests states house federal prisoners since the Founding the Republic, and such requests represent the quintessential type cooperation sanctioned the Framers. The Court Printz relied this history developing the contours the concept commandeering that must have existed the time the Constitutions Framing. See Printz, 521 U.S. 909-10 (discussing the practice early Congress (1789-91) issuing recommendations state legislatures house federal prisoners and noting that when states failed comply, Congresss reaction was simply to rent temporary jail until provision for permanent one could made). Because this potential constitutional problem, and because Congress has made mention the INA that intends for DHS issue mandatory detainers, see supra Part II.A., must read the regulation authorizing only permissive requests that local LEAs keep suspected aliens subject deportation custody. fact, recognition their right refuse requests under 287.7, number local governments, the District Columbia, and now the state California, have established official policies whereby they will only detain suspects pursuant ICE detainers situations where the suspect named immigration detainer has been convicted charged with serious crime.10 See, e.g., Santa Clara County, Cal., Board Supervisors Policy Manual 3.54, Civil Immigration Detainer Requests (resolution adopting 3.54) (2010), available http://bit.ly/YiQ8y6 (No County department, agency, officer, employee shall use any County funds, resources, personnel investigate, question, apprehend, arrest individual solely for actual suspected civil violation federal immigration law.); Cook County, Ill., Ordinance 46-37, available http://bit.ly/15SWpFY (WHEREAS, CFR 287.7 expressly provides that ICE detainers are merely requests that local law enforcement advise DHS when the individual due released, and that the agency continue holding the individual beyond the scheduled time release for hours, excluding weekends and federal holidays, order for ICE arrange assume custody (a) The Sheriff Cook County shall decline ICE detainer requests unless there written agreement with the federal government which all costs incurred Cook County complying with the ICE detainer shall reimbursed.); Chicago Municipal Code 2-173-05, 2-173-042 (first adopted 2012), available http://bit.ly/ZQxQFD (declining honor detainers unless the subject the investigation has oustanding criminal warrant, has been convicted felony, has felony charge pending, has been identified known gang member); N.Y.C., N.Y., Administrative Code 9-131(first adopted 2012) (same, and adding condition that detainer could honored for terrorism suspect well); City Berkeley, California Council, Regular Meeting Annotated Agenda (Oct. 30, 2012), available http://bit.ly/WOmMfO (similar N.Y.C. and Chicago policies); D.C. Acts 19-442, Immigration Detainer Compliance Amendment Act 2012, D.C. Reg. 10153-55 (same); Brent Begin, San Francisco County Jail Wont Hold Inmates for ICE, EXAMINER (May 2011) (describing policy adopted San Francisco Sheriff Michael Hennessey not honor detainers for those arrested for minor crimes). fact, just recently, California adopted statute limiting LEAs throughout the entire state from cooperating with ICE detainers. Cal Govt Code 7282 seq. (effective Jan. 2014). Thus, any remaining ambiguity must resolved favor constitutional reading the regulation. this case, that means must read the regulation authorizing only requests that state and local law enforcement agencies detain suspected aliens subject removal. III. CONCLUSION For these reasons, conclude that C.R.F. 287.7 does not compel state local LEAs detain suspected aliens subject removal pending release immigration officials. Section 287.7 merely authorizes the issuance detainers requests local LEAs. Given this, Lehigh County was free disregard the ICE detainer, and therefore cannot use defense that its own policy did not cause the deprivation Galarzas constitutional rights. Accordingly, the District Courts judgment dismissing Galarzas complaint against Lehigh County VACATED and the matter REVERSED for proceedings consistent with this opinion. Galarza Lehigh County, No. 12-3991 BARRY, Circuit Judge, dissenting deeply concerned that the United States has not been heard the seminal issue this appeal, issue that goes the heart the enforcement our nations immigration laws. And make mistake about it. The conclusion reached friends the Majority that immigration detainers issued pursuant C.F.R. 287.7 not impose any obligation state and local law enforcement agencies detain suspected aliens subject removal, but are merely requests that they so, has enormous implications and will have, predict, enormous ramifications. Maybe the Majority right when says that the language that the particular agency shall maintain custody, 287.7(d), really only a request, 287.7(a). And maybe the Majority wrong. Im simply not ready make that call; indeed, believe that mistake without the input the United States, whom the Opinion will impact most immediately and most profoundly. And even aside from that impact will the impact state and local law enforcement agencies, not the least which will for them figure out what hoops they will have jump through inform their decision whether not grant particular request. Will, for example, they have determine if, the first instance, ICE had probable cause issue the detainer? Will the detainee have right heard? And, pray tell, how and when will they all that? And thats just for starters. ICE issued 273,982 immigration detainers from October 2011 September 30, 2012 (Fiscal Year 2012). the first four months Fiscal Year 2013, issued 73,709 detainers, corresponding annualized figure 221,124. See Number ICE Detainers Drops Percent. Transactional Records Access Clearinghouse Syracuse Univ. (July 25, 2013), http://trac.syr.edu/immigration/reports/325/. These numbers, recognize, cover all detainers issued ICE, and not just those which direct law enforcement agency maintain custody over suspected removable alien. This was, until now, comparatively uncomplicated case brought Mr. Galarza, who, relevant here, was detained within the brief period time set forth 287.7(d) after bail was posted his criminal charges. The United States was not party this 1983 action,2 and the only defendants were Lehigh County, the City Allentown and one its detectives, and two ICE agents, named only their individual capacities. Parenthetically, although the ICE agents were represented counsel from the Department Justice, counsel made abundantly clear the District Court that she did not represent ICE and represented only her clients. See, e.g., Tr. Dec. 15, 2011 48-49. The District Court well understood that fact. Id. The United States was named defendant separate negligence action filed Galarza under the Federal Tort Claims Act. The central issue before here was never squarely raised there, and neither the Majority nor Galarza suggests that was should have been. Although the FTCA action was subsequently consolidated with this 1983 action, presumably that they could before one judge, not two, was separately treated and resolved. Thus, only the most technical sense that one can say, the Majority says note that the U.S. Government, which doubt[s] would disagree with its interpretation 287.7, was part[y] this case when the District Court articulated the principle before appeal. The sole appellee this case Lehigh County, whose only involvement with reference the central issue before appeal that Galarza was briefly housed one its prisons, and that it, through its prison, complied with the immigration detainer once the detainer kicked in. The County, not surprisingly, argued the District Court why the shall maintain custody language was mandatoryit had, said, choice the matter. Galarza, also not surprisingly, argued that the language was not mandatory, and that the District Courts erroneous conclusion the contrary was the result misunderstanding immigration detainers because Lehigh Countys arguments, not the federal governments. Appellants Br. 23, 29. Indeed, Galarza concedes that the United States was not heard 287.7 nor even its own statements that immigration detainers are requests, not orders. Id. 29. course, dont know what the federal government would have arguedit was not the case. And the record before the District Court the central issue before was barebones. this connection, bears emphasis that that issue, i.e. whether not detainers issued pursuant 287.7 impose mandatory obligation detain state and local law enforcement agencies, was but one numerous issues raised the District Court against the various defendants and combinations defendants. The District Court issued extremely thoughtful and very thorough 56-page Opinion, with its finding the issue before essentially tucked away little more than one paragraph near the end, see 55-56, undoubtedly because there had been emphasis the issue the District Court and little record made it. the face all this, the Majority, sweeping Opinion, has decided this enormously important issue. And did not stop there. Rather, went conclude that [e]ven there were any doubt about whether immigration detainers are requests and not mandatory orders, read 287.7 mean that federal detainer command law enforcement agency detain individual would violate the anti-commandeering principle the Tenth Amendment. Maj. Op. 17. Maybe would, and maybe wouldnt, even assuming, with great confidence, that the Tenth Amendment issue should have been reached. Galarza did, indeed, raise the issue the District Court. The County, however, never offered full-throated response the merits, lack thereof, that issue, arguing instead that the constitutionality 287.7 should litigated another, more appropriate, case. Not unimportantly, the District Court did not its lengthy Opinion even mention, much less decide, anything with the Tenth Amendment. Very importantly, the United States was not heard it. All this makes very uncomfortable. Given the posture the case before the District Court, Im not sure how, all, the United States could have been brought in. What sure that have gone very far this very important case without any input from the United States, and should pull back now. For now, though, Im not prepared say, what has essentially been one-sided presentation, that shall really doesnt mean shall but, instead, means please. respectfully dissent.