[00:00:00] Speaker 00:
Without further ado, Mr. Appellant, may please proceed.

[00:00:06] Speaker 02:
Thank you, Your Honor.

[00:00:07] Speaker 02:
May it please the court, Yakov Roth, on behalf of the defendants.

[00:00:10] Speaker 02:
I am hoping to save about three minutes for a bottle.

[00:00:12] Speaker 02:
I'll watch the clock to make sure I do.

[00:00:14] Speaker 02:
Your Honors, this court should stay the injunction because it is fundamentally flawed on multiple levels.

[00:00:21] Speaker 02:
I'd like to start with the issue of standing to seek an injunction.

[00:00:25] Speaker 02:
And we do think this case is controlled on that issue by the Supreme Court's decision in Lyons on the Article 3 issue, and by this Court's on-bank decision in Hodgers-Durgan on the related question of imminent irreparable harm.

[00:00:42] Speaker 02:
The district court here did not find that any named plaintiff faced a real immediate threat

[00:00:48] Speaker 02:
of a suspicionless stop.

[00:00:50] Speaker 02:
The court only said that the alleged practices of the defendants would generally continue.

[00:00:56] Speaker 02:
And that is not enough to make this an Article III controversy under Lyons.

[00:01:01] Speaker 02:
It's certainly not enough to justify an injunction under Hodgers Durbin.

[00:01:07] Speaker 02:
The plaintiffs try to bridge the gap, as I understand it, by arguing the existence of an official policy of violating the Fourth Amendment with these stops.

[00:01:18] Speaker 02:
And I would respond with three points on that.

[00:01:22] Speaker 02:
The first is, as a matter of law, I don't think that a policy alone is sufficient in both Lyons and Hodgers-Durgan.

[00:01:30] Speaker 02:
There were allegations of widespread policy of violating the Constitution, and that did not change the outcome.

[00:01:40] Speaker 04:
Second.

[00:01:40] Speaker 04:
Excuse me.

[00:01:42] Speaker 04:
There are multiple cases in which Lyons has been

[00:01:47] Speaker 04:
asserted and found not applicable.

[00:01:49] Speaker 04:
And it seems to me that the characteristics of those cases are applicable here.

[00:01:54] Speaker 04:
First of all, the chain of causation is very different here, is it not?

[00:01:58] Speaker 04:
In other words, one big problem in Lyons is that the person had to first be arrested before he even had a problem, even potentially had a problem.

[00:02:07] Speaker 04:
And the assertion here is not based on anything the plaintiffs are doing except being there.

[00:02:14] Speaker 04:
Why doesn't that matter?

[00:02:15] Speaker 02:
So that is a distinction, Judge Berzon.

[00:02:19] Speaker 02:
It distinguishes lions.

[00:02:20] Speaker 02:
I don't think it distinguishes Hodgers-Durgan, which was alleged to be random stops of cars by the Border Patrol.

[00:02:28] Speaker 02:
And in Hodgers-Durgan, this court said that difference might matter.

[00:02:32] Speaker 02:
for Article 3 purposes.

[00:02:33] Speaker 02:
It didn't say it did.

[00:02:34] Speaker 02:
It said it might matter for Article 3 purposes.

[00:02:36] Speaker 02:
But nonetheless, it wasn't going to be enough to justify an injunction as a matter of equitable factors, because the plaintiffs still have to demonstrate a sufficient likelihood of imminent harm in the future.

[00:02:51] Speaker 02:
So even if you kind of get past that first issue, I don't think you can get past the second issue.

[00:03:00] Speaker 02:
Sorry, go ahead.

[00:03:01] Speaker 02:
Go ahead.

[00:03:01] Speaker 02:
You go ahead.

[00:03:04] Speaker 02:
The plaintiffs all, in terms of the cases that distinguish, the plaintiffs mostly rely on two, LaDuke and Melendrez.

[00:03:12] Speaker 02:
And there are, I think, a couple of important differences between this case and both of those.

[00:03:18] Speaker 02:
The first is, in both of those cases, the defendants admitted the policy that was being challenged.

[00:03:25] Speaker 02:
In this case, the defendants squarely denied the policy that plaintiffs claim exists.

[00:03:32] Speaker 02:
That's at docket number 711 and 712 in the district court.

[00:03:37] Speaker 02:
And the district court here did not find an official policy.

[00:03:42] Speaker 02:
The district court said in footnote 33 that the plaintiffs had not identified an official policy and the court thought that didn't matter.

[00:03:51] Speaker 02:
And later in the opinion in footnote 36, the court said that defendants don't have to change their training.

[00:03:57] Speaker 02:
They don't have to change their policies because it seems that both of those are perfectly fine.

[00:04:01] Speaker 02:
It's just a matter of how it's being put into place in the field by particular agents.

[00:04:08] Speaker 04:
And- She didn't say about particular agents.

[00:04:10] Speaker 04:
She said that there was an overall, she said there was no written policy, but that there was a definite

[00:04:18] Speaker 04:
pattern in practice, which amounted to a policy.

[00:04:21] Speaker 04:
That's what I understood her to say.

[00:04:23] Speaker 02:
Yeah, it's a little unclear, Your Honor.

[00:04:24] Speaker 02:
I don't, it's not just that she said no written policy.

[00:04:27] Speaker 02:
I understand, you know, it doesn't need to be written.

[00:04:30] Speaker 02:
But the court said in footnote 33, the district court said court finds this pattern of conduct is sufficient evidence, even if there is no official policy to engage in roving patrols.

[00:04:40] Speaker 02:
And then later in the footnote said, although there is no testimony from defendants field agents with respect to the policy being carried out on the streets, the court finds based on the evidence that is before the court, plaintiffs have sufficiently shown that defendants policies are being carried out differently.

[00:04:55] Speaker 02:
For this reason, the court also finds it's not this positive that plaintiffs have not pointed to any official policy that authorizes or ratifies the alleged roving patrols.

[00:05:06] Speaker 02:
I mean, it's a little bit unclear exactly what the court was saying there, but I don't think the court was saying that there was an official policy.

[00:05:11] Speaker 02:
I think the court was saying, I think I've seen enough to believe there's a pattern.

[00:05:16] Speaker 02:
Even on that, respectfully, Your Honor, we don't think that is close to substantiated based on the record that the court had before it.

[00:05:26] Speaker 02:
All the court had really was a series of declarations from individuals who say they were stopped or questioned or detained or arrested.

[00:05:36] Speaker 02:
But that alone doesn't tell us whether the Fourth Amendment was violated in connection with those stops.

[00:05:45] Speaker 02:
Even in those particular cases, let alone the existence of a broader overarching policy, it really only tells us that particular people were stopped or arrested.

[00:05:56] Speaker 02:
I think the court recognized that hole in the evidence, but tried to shift the blame to defendants for not having put in

[00:06:05] Speaker 02:
sufficient material to justify reasonable suspicion for the various stops that plaintiffs had identified in the declarations.

[00:06:16] Speaker 02:
And respectfully, I don't think the procedures that the district court employed were even close to adequate to allow

[00:06:25] Speaker 02:
for that kind of determination to be made.

[00:06:28] Speaker 02:
What happened here is the plaintiffs spent weeks collecting dozens of anecdotes from across the district about particular stops that had occurred.

[00:06:38] Speaker 02:
And the district court said it was reasonable for them to take a month to put that all together fine.

[00:06:43] Speaker 02:
But then we got two business days to respond, not only to all of that, but also to the separate Fifth Amendment ex parte TRO that they filed at the same time.

[00:06:53] Speaker 04:
The plaintiffs say you got a week.

[00:06:56] Speaker 04:
Why is there a difference there?

[00:06:58] Speaker 02:
It was Thursday night before the 4th of July weekend, and our response was due Tuesday at 5 p.m.

[00:07:04] Speaker 02:
So we had two business days and a long weekend.

[00:07:07] Speaker 02:
And to reach back multiple weeks across multiple agencies to reconstruct multiple stops that they had identified, many of which were only identified sort of

[00:07:17] Speaker 02:
with pseudonyms or otherwise without much identifying.

[00:07:21] Speaker 04:
Submit an additional.

[00:07:26] Speaker 04:
declarations with the stay motions, as I recall.

[00:07:31] Speaker 02:
So the first one, the initial three set of plaintiffs or petitioners, this was originally a habeas action.

[00:07:37] Speaker 02:
The three original petitioners were all arrested at the same time in the same incident.

[00:07:42] Speaker 02:
And so we had started looking into that one because it was the original one.

[00:07:46] Speaker 02:
And so by the time of the same motion, we were able to put in a declaration saying, by the way, the court was was wrong about that one.

[00:07:53] Speaker 02:
It was a targeted operation.

[00:07:54] Speaker 02:
It was not a random people driving by and, look, we see some people who appear Hispanic at the bus stop, let's pick them up.

[00:08:00] Speaker 02:
It was based on particular intelligence about that location.

[00:08:04] Speaker 04:
Well, there was extremely, there was almost, you said that, but you didn't provide any evidence of who was being targeted or how we're supposed to know was being targeted or what you knew or anything about it.

[00:08:16] Speaker 02:
It was a pretty general declaration, Your Honor, that's correct.

[00:08:19] Speaker 02:
I think it's illustrative that if we had actually sufficient time to build a meaningful record on the particular stops.

[00:08:27] Speaker 04:
But then you had a second stay motion in the district court and you still didn't file anything else.

[00:08:34] Speaker 02:
It was with the second.

[00:08:35] Speaker 02:
This was with the second.

[00:08:36] Speaker 04:
The reason the same motion is when we filed this declaration on the particular I thought you filed one with us and then you found one or maybe a five one on a I know you filed one with the district court before your first motion with us.

[00:08:50] Speaker 04:
I don't know that you found a second one that just record We filed

[00:08:56] Speaker 02:
written stay motion first with this court and attached this declaration right and the same declaration was in the district court there was not another declaration the same declaration we then refiled in the district court the next day even though there were several more days there was still no more yeah that's right but i mean by that point the adjudication had been made so we were not trying to disprove everything at that point we were trying to show

[00:09:18] Speaker 02:
Look, the speed at which this proceeded and the procedures of the district court use weren't adequate.

[00:09:23] Speaker 02:
And this is one example, because actually we can, if there was a hearing on this with evidence, we could actually put somebody out to explain why those three individuals were arrested and detained.

[00:09:35] Speaker 03:
It was not- You remain free to do that in the PI hearing, right?

[00:09:40] Speaker 02:
Well, that, I think, depends on what transpires in this court.

[00:09:45] Speaker 02:
We didn't have that opportunity before we got the order below.

[00:09:49] Speaker 02:
And that I think is the problem because the district court didn't have a sufficient record to draw the kind of determination that you would have to make to support this sort of sweeping injunction.

[00:10:00] Speaker 03:
I think that is by definition what the nature of a TRO hearing is, right?

[00:10:04] Speaker 03:
I mean, it's actually intended to be ex parte and the district court gave you more opportunity to respond than is normally contemplated.

[00:10:13] Speaker 03:
and then that's supposed to be a temporary measure while there is a full-blown PI hearing at which you would have more opportunity to present evidence.

[00:10:25] Speaker 03:
That's my understanding of the intent of the rules.

[00:10:29] Speaker 02:
That's right, Judge Song, I think, but I don't think that's an excuse for not holding the plaintiffs to their burden of actually proving the existence of a policy that is likely to affect these named plaintiffs in the future.

[00:10:40] Speaker 02:
Temporary restraining order is actually, I mean, the standard is supposed to be higher for the plaintiffs to show, because of the sort of extreme expedited nature of it,

[00:10:49] Speaker 02:
They need to make, I think, a higher showing than they would need to make ordinarily to show that that extraordinary remedy is appropriate.

[00:10:56] Speaker 04:
What about the three organizational pages?

[00:10:59] Speaker 04:
What are the organizational pages that were set on this issue?

[00:11:01] Speaker 04:
But there were three that were, and they all alleged that they had members, some with specific names, who were being affected and that there were large numbers of such people.

[00:11:12] Speaker 04:
Isn't that fundamentally different from Lyons and from Hodger Durgan as well?

[00:11:18] Speaker 02:
Well, first point, your honor, the district court didn't rely on the organizational plaintiffs, didn't find standing on the part of the organizational plaintiffs.

[00:11:25] Speaker 04:
Does that mean that we can?

[00:11:27] Speaker 02:
Well, to the extent that it involves any kind of factual determination, I'm not sure it would be appropriate for this court to make that determination on appeal.

[00:11:36] Speaker 02:
The second point is the individual members that they are identifying

[00:11:40] Speaker 02:
Are not differently situated.

[00:11:42] Speaker 02:
I don't think in any legal legally material way from the name like this.

[00:11:46] Speaker 04:
No, there are a lot more.

[00:11:47] Speaker 04:
There are a lot more of them in terms of the notion of the likelihood of them being.

[00:11:54] Speaker 04:
I'm countering the same problem again.

[00:11:55] Speaker 02:
There's more of them, but as to any particular individual, one of them.

[00:12:00] Speaker 02:
The odds are not any higher than for Mr. Lyons or Mr. Hodgers Jurgen.

[00:12:05] Speaker 02:
For any particular named plaintiff or named member of an organizational plaintiff, there's no basis to infer that that person is going to be subject to a suspicionless stop in the future, especially given the lack of any serious record evidence of a policy of doing this.

[00:12:24] Speaker 00:
I was trying to interject, but can you tell me the government's view of what is the principal issue that we have to decide today?

[00:12:39] Speaker 02:
Thank you, Your Honor.

[00:12:40] Speaker 02:
I think there's two questions, really, principal questions presented.

[00:12:44] Speaker 02:
One is the standing of the plaintiffs to seek this injunction.

[00:12:49] Speaker 02:
And the other is, and I'm happy to pivot to this now, given the time is collapsing, are the Fourth Amendment merits of the injunction?

[00:12:59] Speaker 02:
Because I think even if you assume the district court did have jurisdiction and the plaintiffs had standing, this injunction on its base is impermissible under established law.

[00:13:09] Speaker 00:
It is the only thing before us today whether that injunction is permissible.

[00:13:17] Speaker 02:
Well, technically the question is whether the court should stay that injunction pending appeal.

[00:13:22] Speaker 00:
So that's what I thought it was.

[00:13:24] Speaker 00:
Yes.

[00:13:24] Speaker 00:
That was the question of whether there could be a stay.

[00:13:30] Speaker 00:
That's right.

[00:13:31] Speaker 00:
Let me ask you another question.

[00:13:33] Speaker 00:
It's not precisely on that issue, but is your answering judge.

[00:13:40] Speaker 00:
persona progesico earlier and saying something was not a policy.

[00:13:47] Speaker 00:
I just want to clarify as to what you mean by a policy.

[00:13:53] Speaker 00:
Is it, for example, a policy of the administration at this time to deport 3000 persons per day?

[00:14:06] Speaker 02:
Not to my knowledge, your honor.

[00:14:10] Speaker 02:
The policy that I think matters for purposes of this injunction and this motion to stay is, is there a policy of conducting detentive stops without reasonable suspicion?

[00:14:23] Speaker 04:
Are you saying there is no policy to deport 3,000 people a day?

[00:14:27] Speaker 02:
I'm not aware of any policy today.

[00:14:31] Speaker 02:
But I'm focused on the detentions, not the deportations, because this case is about detentions, not about deportations.

[00:14:37] Speaker 02:
And there's definitely no policy of conducting detentions without reasonable suspicion.

[00:14:42] Speaker 03:
I don't think there was, I mean, yeah, there's no policy that says we're going to conduct expressly stops without reasonable suspicion.

[00:14:53] Speaker 03:
But I think the argument or the allegation is that there is a policy of conducting detentive stops based solely on some combination of

[00:15:05] Speaker 03:
apparent race or ethnicity, specifically Hispanic or Latin, the language, speaking Spanish or speaking English with an accent, locations in the area, which according to your own declarations are chosen based on information that in the past, some unspecified number of illegal aliens have used or found work

[00:15:32] Speaker 03:
in that location or that type of location and a general sense of type of work loosely based on how they look.

[00:15:42] Speaker 03:
And that is that policy is supported or practiced for this operation, at least is, according to your own declarants, happening and is supported by the record.

[00:15:56] Speaker 03:
And so if that lacks

[00:16:01] Speaker 03:
the type of reasonable suspicion that this court has said is necessary and that that is too broad a profile to support a finding of individualized reasonable suspicion, then there is a policy that violates the fourth amendment.

[00:16:18] Speaker 02:
So let me take that on directly, Judge.

[00:16:23] Speaker 02:
The government's declarants said, we stop people when there's reasonable suspicion and that those factors are relevant to reasonable suspicion.

[00:16:33] Speaker 02:
And this court has said, involved as Vega on bank, I'm just gonna quote it because I think it's directly on point here.

[00:16:40] Speaker 02:
The nature of the totality of the circumstances analysis also precludes us from holding that certain factors are presumptively given no weight without considering those factors in the full context of each particular case

[00:16:54] Speaker 03:
That's not what, that's not what I said.

[00:16:56] Speaker 03:
And that's not how I read the district court's order saying that was good.

[00:16:59] Speaker 03:
Presumptively no weight.

[00:17:01] Speaker 03:
They said those factors in and by themselves too are just a broad profile that don't support reasonable suspicion.

[00:17:08] Speaker 03:
And that is consistent with both Valdez Vega and our case law, but that still doesn't address my question.

[00:17:14] Speaker 03:
If that, if that is correct as a matter of law, then you don't,

[00:17:21] Speaker 03:
I mean, it's conclusory for you to say we don't have a policy of violating the Fourth Amendment.

[00:17:27] Speaker 03:
The question is, is there enough evidence to show you have a policy of stopping based on information that doesn't amount to reasonable suspicion, that only amounts to a broad profile?

[00:17:38] Speaker 02:
So let me answer them two ways.

[00:17:39] Speaker 02:
Number one, factually, I don't think there's a basis in the record to say even that much because I don't think we have any real information in the record from the government side of any particular soft.

[00:17:52] Speaker 02:
So we don't know.

[00:17:53] Speaker 02:
what basis they had for any of these particular stocks.

[00:17:57] Speaker 03:
Do you even make that argument?

[00:17:59] Speaker 03:
Your state motion focused on standing and the terms, the vagueness of the TRO.

[00:18:05] Speaker 03:
I think in your opening state motion, you had exactly one conclusory sentence about the merits of the district court's Fourth Amendment analysis, which arguably is a forfeiture of any attack on her specific findings or her conclusions of law on the Fourth Amendment.

[00:18:23] Speaker 02:
So your honor, the reason this policy question has come up in the more so in the reply is because I understood plaintiffs response to the lions issue to be saying, oh, no, no, that's different.

[00:18:35] Speaker 02:
There's a policy here.

[00:18:36] Speaker 02:
Now we don't think the district court made that finding, which is why we didn't attack it.

[00:18:40] Speaker 02:
But if the district court had made that finding,

[00:18:42] Speaker 02:
It would have been clearly erroneous given the lack of information in the record.

[00:18:46] Speaker 02:
That's different, though, for people.

[00:18:48] Speaker 04:
My understanding is that after the stay motion here, after the district court injunction here, the Secretary of Homeland Security said, we're going to continue doing what we're doing.

[00:19:04] Speaker 02:
So that's not a policy?

[00:19:06] Speaker 02:
Well, the policy is to follow the Fourth Amendment and to require reasonable suspicion.

[00:19:10] Speaker 02:
And our point on the law is sort of the same.

[00:19:14] Speaker 04:
Is your policy not to use these four factors alone as sufficient to show reasonable suspicion?

[00:19:20] Speaker 04:
You haven't ever said that.

[00:19:22] Speaker 02:
I don't think there's a policy either way.

[00:19:25] Speaker 02:
Legally, I think it's appropriate to use the factors for reasonable suspicion.

[00:19:29] Speaker 02:
I think this court's cases squarely support that proposition of law.

[00:19:33] Speaker 04:
Well, but this court, actually this court's cases seemed, and there are a number of them, if you put them all together, Paris, Cruz, Manzaneta, Girardeau,

[00:19:46] Speaker 04:
Montero, Carmago, and Duke, if you put them all together, they seem to fully support the conclusion that where people are working or where they're standing or that they're speaking Spanish or that they're Hispanic, singly or in combination, is insufficient.

[00:20:07] Speaker 02:
So I disagree with that, Your Honor, on two levels.

[00:20:10] Speaker 02:
One is, per Valdez Vega, again, I'm just gonna read this.

[00:20:14] Speaker 02:
We may conclude that some factors in a particular case are more probative than others, but this evaluation cannot be done in the abstract by divorcing factors from their context in the stop at issue.

[00:20:25] Speaker 03:
So I- No one had suggested that you cannot consider these factors at all, but we have multiple precedents saying these factors alone

[00:20:37] Speaker 03:
only form a broad profile and you need more to find individualized suspicion necessary to satisfy the reasonable suspicion standard for a stop, detentive stop.

[00:20:49] Speaker 03:
And the Supreme Court itself has said that we do de novo review of Fourth Amendment determinations because there is, there are standards, applicable standards in the Fourth Amendment context

[00:21:05] Speaker 03:
Yes, we can't exclude say categorically this factor you cannot consider ever, but we can say and then we do do analogous case matching to say these things are insufficient.

[00:21:20] Speaker 02:
I don't think we can say that they're insufficient in the abstract.

[00:21:24] Speaker 04:
But we're not saying it in the abstract.

[00:21:26] Speaker 04:
If, for example, the district court opinion, injunction does not preclude you from saying, for example, this particular car wash place we happen to know has a policy of hiring illegal aliens.

[00:21:46] Speaker 04:
It doesn't preclude even that.

[00:21:48] Speaker 04:
It just says you can't say, because it's a car wash.

[00:21:52] Speaker 04:
And it doesn't preclude, you're saying we were chipped off that there were a bunch of illegal aliens at this place.

[00:21:59] Speaker 04:
Even that might be a problem, but the injunction doesn't address that.

[00:22:03] Speaker 02:
Sorry to interrupt.

[00:22:06] Speaker 02:
I think part of the problem is I don't know if the injunction prohibits that or not.

[00:22:10] Speaker 04:
Why not?

[00:22:11] Speaker 04:
It's absolutely clear.

[00:22:12] Speaker 04:
She was absolutely clear in the injunction and in talking about the injunction.

[00:22:16] Speaker 02:
Well, let me try to explain it this way, because the injunction refers to presence at a particular location.

[00:22:23] Speaker 02:
So your honor gave the hypothetical of, well, let's say you have a basis from a tip that a particular car wash is employing aliens without legal status.

[00:22:34] Speaker 02:
The suggestion was, OK, that's different.

[00:22:35] Speaker 02:
Now you have something else on top of the factors.

[00:22:38] Speaker 02:
OK, what if it's last week the agents

[00:22:42] Speaker 02:
were in that location and arrested people there and therefore have a basis to believe.

[00:22:46] Speaker 02:
Is that also outside the scope of the injunction?

[00:22:49] Speaker 02:
And if all that is outside the scope of the injunction, I'm not sure what's left because presumably they're not randomly selecting locations.

[00:22:57] Speaker 04:
Actually, it appears that they are randomly selecting.

[00:23:02] Speaker 04:
Home depots where people are standing looking for jobs and car washes because they're car washes, et cetera.

[00:23:11] Speaker 02:
And your honor, if an agent then testified, oh no, the reason we went to Home Depot is because based on intelligence, surveillance, our experience in the field, whatever else, our experience last week in the same location, that's why we picked it.

[00:23:24] Speaker 02:
Are we now outside the scope of the injunction because there's something else being considered or is it still ultimately based on presence at a particular location and therefore forbidden?

[00:23:34] Speaker 02:
I think, I don't know the answer to that, but I think this is why it is problematic under the Fourth Amendment to try to make these determinations outside the context of a particular fact pattern.

[00:23:46] Speaker 02:
If we don't do these adjudications preemptively and hypothetically, we have to look at it in the context of particular facts.

[00:23:54] Speaker 02:
And if we did that, we might actually come to a different conclusion as to many of the examples, if not all of them, that they have pointed to.

[00:24:01] Speaker 00:
I'm sorry to interrupt you, but I want to interject.

[00:24:09] Speaker 00:
You're already almost four minutes over your time.

[00:24:13] Speaker 00:
that you started with.

[00:24:15] Speaker 00:
And I still have another question for you.

[00:24:21] Speaker 00:
And I'll give you three minutes for a bottle when we're done with the arguments on the other side of the case.

[00:24:37] Speaker 00:
My question remains.

[00:24:41] Speaker 00:
Am I correct?

[00:24:43] Speaker 00:
I don't know why I asked you this, but I want to tell you why I asked.

[00:24:49] Speaker 00:
That there's a policy of deporting 3000 people per day.

[00:24:56] Speaker 00:
It's because of.

[00:25:00] Speaker 00:
I read in preparation for this case that ICE had set a specific target of 3,000 deportations per day and sent that to all the field offices, to all their field offices.

[00:25:21] Speaker 00:
So I'm just trying to understand what would motivate

[00:25:29] Speaker 00:
the officers who did the roundup of aliens here to grab such a large number of people so quickly and without

[00:25:46] Speaker 00:
You know, without marshaling reasonable suspicion to detain.

[00:25:53] Speaker 00:
And am I right that ICE set that target of 3,000 people a day for all their field offices?

[00:26:06] Speaker 02:
I don't know, Your Honor.

[00:26:07] Speaker 02:
I believe that comes from a newspaper article that plaintiffs have cited.

[00:26:11] Speaker 00:
I think it came from the district court.

[00:26:16] Speaker 02:
The district may have repeated it.

[00:26:19] Speaker 02:
I believe the ultimate source of that was a newspaper article that plaintiffs cited in their documents that that was a target.

[00:26:28] Speaker 02:
I don't know the actual directive in the records.

[00:26:31] Speaker 02:
I don't know the answer to your Honour's question, but we certainly do not accept the proposition that the individuals who were detained were detained without reasonable suspicion.

[00:26:44] Speaker 04:
I suppose it was true that there was a high quota, and as also a reporter, that the agents foretold that their jobs depended on pursuing much higher numbers than usual and in a more aggressive way.

[00:27:05] Speaker 04:
Would that matter?

[00:27:07] Speaker 02:
I don't think it would be enough, Your Honor.

[00:27:08] Speaker 02:
I think that might increase the risk of a constitutional violation in a particular case, but I don't think that alone would be sufficient for an injunction because it's not telling anybody to do anything other than abide by the Fourth Amendment standards that we fully accept that require reasonable suspicion on an individual basis.

[00:27:29] Speaker 04:
And again- So is your representation on the preliminary injunction

[00:27:35] Speaker 04:
when you have a full record, you're going to be able to demonstrate that, in fact, what the district court found was happening is not happening.

[00:27:45] Speaker 04:
Or put another way, is your argument that it's okay if it's happening?

[00:27:51] Speaker 04:
That if they are, in fact, stopping people on these four factors alone, I mean, in combination, that's okay?

[00:28:00] Speaker 04:
Or is your argument that it's not happening?

[00:28:03] Speaker 04:
You're going to be able to show it's not happening.

[00:28:05] Speaker 04:
You're going to get a fair chance to show it's not happening.

[00:28:07] Speaker 04:
And you're going to be able to.

[00:28:09] Speaker 02:
Okay, so there's two related questions.

[00:28:11] Speaker 02:
I think what we're going to show.

[00:28:12] Speaker 04:
There are two related questions.

[00:28:14] Speaker 02:
When I think we're going to try to show.

[00:28:16] Speaker 02:
And again, we haven't been able to be given an opportunity to marshal this evidence.

[00:28:20] Speaker 02:
So I'm not telling you what it's going to show because I don't know.

[00:28:23] Speaker 02:
But what we will attempt to show based on the declarations that we do have about our policies and practices and training is that the officers are instructed to find reasonable suspicion before they arrest.

[00:28:37] Speaker 02:
And we are not going to say that these four factors standing alone can never be sufficient.

[00:28:42] Speaker 02:
I think there are situations, probably are situations.

[00:28:47] Speaker 04:
But you've already said that they're trained not to do this.

[00:28:53] Speaker 04:
many people on the ground who say they are doing it.

[00:28:57] Speaker 04:
So the question of whether they, I know they are trained to have reasonable suspicion, but there were individuals who attested that they were basically standing there at a car wash and somebody came up to them and they, well, one of them came with guns and masks and many cars and many people.

[00:29:22] Speaker 04:
and ask whether they were American citizens.

[00:29:25] Speaker 04:
And even when they said they were, they didn't accept that answer.

[00:29:27] Speaker 04:
And they took them over somewhere else and then investigated further before they actually let them go.

[00:29:32] Speaker 04:
There are at least a couple of people who say that.

[00:29:36] Speaker 04:
There are others who, I mean, there's a non-trivial number of people who say that this is happening on the ground.

[00:29:43] Speaker 02:
So I think your honor, part of the problem is we do have a lot of anecdotes in the record.

[00:29:50] Speaker 04:
I think if your honor goes through them, it's a declaration and a penalty.

[00:29:54] Speaker 02:
I'm not trying to minimize it.

[00:29:55] Speaker 02:
There are there are declarations relating to specific incidents.

[00:29:59] Speaker 02:
I think if your honor goes through them, you will see as to some of them, they're probably not the tensions.

[00:30:03] Speaker 02:
Some of them refer simply to questioning without.

[00:30:06] Speaker 02:
of a detention.

[00:30:08] Speaker 02:
Some of them are clearly detentions, but we have no idea from the record whether there was reasonable suspicion or not, because we don't have the other side of that narrative.

[00:30:18] Speaker 03:
Counsel, correct me if I'm wrong, but nowhere in your motion for a stay did you challenge any of the district court's findings that stops, detentive stops requiring reasonable suspicion have occurred, and nowhere did you challenge the district court's finding that

[00:30:36] Speaker 03:
they were based on these four factors alone that stops based on these four factors alone have occurred.

[00:30:45] Speaker 03:
And the only thing that you said about the Fourth Amendment, those four factors not being sufficient is one sentence in your motion after making all your other arguments about standing and vagueness of the Tiero and all those other things.

[00:31:00] Speaker 03:
You had one sentence in your opening motion papers

[00:31:04] Speaker 03:
about that Fourth Amendment analysis of the district court.

[00:31:07] Speaker 03:
Is that all accurately describing your motion first day?

[00:31:12] Speaker 02:
Not the last piece of it, Your Honor.

[00:31:13] Speaker 02:
We had an entire section about the four factors and why it was permissible to.

[00:31:19] Speaker 03:
You said that they were not, they cannot be categorically barred from considering them.

[00:31:26] Speaker 03:
But in terms of then you said even if

[00:31:30] Speaker 03:
you know, the district court's order should be interpreted as only barring us from relying them solely on them, they're wrong.

[00:31:39] Speaker 03:
And with no case law, no development, nothing until your reply brief.

[00:31:43] Speaker 03:
Is that correct?

[00:31:45] Speaker 02:
No, I don't think so.

[00:31:46] Speaker 02:
I'm looking at it right now.

[00:31:47] Speaker 02:
We have multiple pages on this.

[00:31:48] Speaker 03:
What pages?

[00:31:49] Speaker 03:
Are you saying that you actually argued with case law that the reliance on the four factors

[00:31:59] Speaker 03:
Is permitted, but not enough 15 to 17.

[00:32:07] Speaker 02:
And it's 1715 to 17 we talk about how.

[00:32:14] Speaker 02:
that we talk about the four factors that the court enumerated and how they can be considered.

[00:32:18] Speaker 04:
No, but it begins with, insofar as the injunction means to prohibit the government from relying on the four listed factor as at all, which isn't what she said.

[00:32:27] Speaker 04:
And if there's any doubt about what she said, we can clarify that now in our opinion, but there's no doubt about what she said.

[00:32:36] Speaker 04:
So what Sunker is saying that that is what you addressed, but whether you address what she actually said.

[00:32:42] Speaker 02:
No, but Your Honor, if you continue reading the paragraph, we go through the factors and we cite cases saying that we can consider those factors.

[00:32:50] Speaker 02:
Yes, that's true.

[00:32:51] Speaker 02:
We all agree on that.

[00:32:52] Speaker 02:
So then I don't really understand the issue then.

[00:32:56] Speaker 02:
These four factors can be relevant factors.

[00:32:59] Speaker 02:
I'm not aware of any party that says when you put them together, they're categorically not enough for reasonable suspicion in every case.

[00:33:06] Speaker 04:
Not enough and non-relevant are not the same thing.

[00:33:10] Speaker 02:
That's right.

[00:33:11] Speaker 02:
They're relevant.

[00:33:12] Speaker 02:
The cases say they're relevant and no case says they're not enough together.

[00:33:17] Speaker 02:
There are cases that say that race generally is not enough.

[00:33:21] Speaker 02:
There are cases that say language alone is not enough.

[00:33:25] Speaker 02:
But even if you look at plaintiff's own cited cases like Manzo Verado, they talk about how a particular location can be strong support for finding reasonable suspicion.

[00:33:37] Speaker 02:
inability to speak English may support an officer's reasonable suspicion.

[00:33:41] Speaker 04:
Nothing about these people says that she didn't say inability to speak English.

[00:33:44] Speaker 04:
She said speaking Spanish.

[00:33:47] Speaker 04:
That's a completely different thing.

[00:33:49] Speaker 02:
Okay.

[00:33:50] Speaker 02:
Well, Your Honor, I'm not aware of any case law that says that cannot be a relevant factor, nor am I aware of any case law that says when you put these four factors together, that that

[00:34:02] Speaker 02:
package is never going to be enough to satisfy you.

[00:34:04] Speaker 03:
But that is a different argument from the one you made on pages 15 to 17, which is your argument.

[00:34:09] Speaker 03:
The way I understand that is that we simply there is it is impermissible to issue an injunction of this sort, not that these factors are enough, but that any type of injunction in the Fourth Amendment context saying these particular factors are not enough.

[00:34:28] Speaker 03:
So, for example, when we have said,

[00:34:31] Speaker 03:
considering race alone is not enough.

[00:34:34] Speaker 03:
According to you, the arguments you're making at 15 to 17, that type of quote unquote categorical injunction is improper in the Fourth Amendment context because of a totality of circumstances test.

[00:34:47] Speaker 03:
That's a different argument from saying race alone or these few factors alone are sufficient to support reasonable suspicion in the Fourth Amendment context.

[00:35:01] Speaker 02:
Now I understand what you're saying.

[00:35:02] Speaker 03:
That argument, that last argument, I don't see made anywhere except in one conclusory sentence in your motion.

[00:35:10] Speaker 02:
I understand your point, Your Honor.

[00:35:11] Speaker 02:
Now, I apologize for not understanding sooner, but I think the points are related because the reason we don't do these categorical

[00:35:19] Speaker 02:
formulas in the Fourth Amendment context is because we can't say preemptively that there is not going to be some set of facts where these three or those four or those two aren't going to be sufficient.

[00:35:30] Speaker 02:
So I think they're they're not totally separate points.

[00:35:33] Speaker 02:
The point is we have to do these analyses and this court has always done these analyses on a particular fact pattern.

[00:35:41] Speaker 02:
And of course, in a particular fact pattern, we can have disagreements about weight, about sufficiency, about whether the full package crosses the line or doesn't.

[00:35:50] Speaker 02:
But we have to be doing that not in the abstract, but on a particular set of facts.

[00:35:55] Speaker 02:
That's how I read Valdez Vega on Bank of India.

[00:35:59] Speaker 04:
So if there was an announced policy that said that all ICE agents are to regard as reasonable cause,

[00:36:09] Speaker 04:
If they look at somebody and determine that they're Hispanic and hear them speaking Spanish and see them at a bus stop and think that they're a jayworker, that's reasonable suspicion.

[00:36:27] Speaker 04:
And if that were the official policy, there would still be no possibility of enjoining it.

[00:36:34] Speaker 02:
No, I don't agree with that, Your Honor, because I think there you'd be saying this necessarily does satisfy reasonable suspicion.

[00:36:40] Speaker 02:
That would also under the Fourth Amendment.

[00:36:42] Speaker 02:
So that would be an overbroad policy under the Fourth Amendment because you would be saying these criteria alone equal reasonable suspicion.

[00:36:49] Speaker 02:
Well, that's not what the cases say.

[00:36:51] Speaker 02:
The cases say you've got to look at it case by case, totality.

[00:36:54] Speaker 04:
But case by case has to encompass some contextual

[00:37:00] Speaker 04:
something other than those four things or or else there's nothing more.

[00:37:05] Speaker 04:
So if since all this being enjoined to those four things and if a policy about those four things wouldn't work and there's no nothing that's negating context,

[00:37:16] Speaker 04:
simply those four things, then I fail to understand your argument.

[00:37:22] Speaker 02:
Your honor, there is a possible reading of the injunction where it basically covers nothing.

[00:37:26] Speaker 04:
All right, well suppose we simply say that the policy, that we interpret the injunction as saying what I just said and not what you said in your brief.

[00:37:40] Speaker 04:
So then what?

[00:37:42] Speaker 02:
Well, I think it would be less problematic if we clarify the scope of the injunction in a way that narrows it.

[00:37:49] Speaker 02:
But respectfully, Your Honor, that would narrow it to basically nothing because the locations are always gonna be informed by some context or background or experience or surveillance or intelligence or experience in the field.

[00:38:02] Speaker 02:
They're gonna be picked for some reason.

[00:38:05] Speaker 02:
And again, the court may find in a particular case it wasn't good enough,

[00:38:08] Speaker 02:
It wasn't a good enough reason to mind with the other factors to stop somebody, or the court may find that it was good enough.

[00:38:15] Speaker 03:
The record on that point, and I'm sorry we're taking you over your time, and I believe Judge Gould has promised you a few minutes of rebuttal, but there is a... Looking at the TRO as a whole, all of the district court's reasoning, all of the evidence put in by the plaintiffs, as well as the government,

[00:38:35] Speaker 03:
seems to me that the record establishes that the government is conducting, picking locations.

[00:38:42] Speaker 03:
This is in your own declaration based on information, past experience showing that illegal aliens have used or utilized these locations or have found work at these locations.

[00:38:59] Speaker 03:
So at most,

[00:39:02] Speaker 03:
by your own emissions, that is the information by which you are picking these locations.

[00:39:09] Speaker 03:
Public sidewalks, parking lots, bus stops, car washes, just based on information that at some point in the past, illegal aliens have used them or used them to find work.

[00:39:25] Speaker 03:
That, if we were to say that even that definition

[00:39:31] Speaker 03:
of location combined with the other factors under our case law establishes only a general profile insufficient to support reasonable suspicion for a detentive stop.

[00:39:47] Speaker 03:
And that is what the Disher Court order read as a whole is reaching.

[00:39:53] Speaker 03:
What case law do you have to suggest that that is incorrect?

[00:40:02] Speaker 02:
So two points on that, Your Honor.

[00:40:04] Speaker 02:
First, I think if you look at the declaration, what it says is that those locations are selected for consensual encounters that may lead to reasonable suspicion.

[00:40:15] Speaker 04:
Not that we're just, that's what the declaration- But that's not what the declaration's saying.

[00:40:19] Speaker 04:
The declaration said that people were detained and not even asked for their identification until after they were detained and taken elsewhere, for example.

[00:40:30] Speaker 02:
Some of the declarations say that, and some of them say that people came and asked questions.

[00:40:34] Speaker 02:
There's different declarations about different incidents, and they say different things, and they may have been based on different approaches that were being used.

[00:40:42] Speaker 02:
But Judge Sung was asking about the part of our declaration where we said locations are selected based on past experience, and the particular context of that testimony was that those places are selected for consensual encounters and questioning.

[00:40:56] Speaker 03:
Again, in a particular case, there may be- And the Disha Court found that that was happening, but they were not consensual encounters.

[00:41:04] Speaker 03:
And you nowhere in your stay motion challenge any of those factual findings.

[00:41:09] Speaker 03:
And I understand you have this broad argument that you weren't given enough time, but that doesn't actually constitute an argument for clear error on those factual findings.

[00:41:20] Speaker 03:
That's nowhere in your motion for a stay, not even in your reply.

[00:41:26] Speaker 02:
Your honor, I don't think, so I think we win regardless of those facts.

[00:41:29] Speaker 02:
And that's why our opening motion focused on standing, which doesn't depend on whether a particular stop rose to the level of a detention or had reasonable suspicion or not.

[00:41:39] Speaker 02:
It requires more under Lyons.

[00:41:41] Speaker 02:
And so that was our point on standing.

[00:41:43] Speaker 02:
And then our point on the fourth amendment was whatever may have happened, this statement of law in the injunction is both imprecise with respect to the first half of the injunction

[00:41:54] Speaker 02:
and wrong in terms of saying that this bundle of factors is legally insufficient.

[00:42:00] Speaker 04:
So, yes, we didn't go after the particular facts, but because— In one of the cases, I forget which right now, there was added a sentence that said that non-detentive questioning was okay.

[00:42:13] Speaker 04:
What if we added that sentence?

[00:42:14] Speaker 04:
What if we said that that sentence should be added to the injunction?

[00:42:18] Speaker 02:
Well, non-detentive questioning doesn't require reasonable suspicion.

[00:42:21] Speaker 02:
So that's why.

[00:42:23] Speaker 02:
But with respect to detentive stops.

[00:42:25] Speaker 04:
But that would seem to solve most of your problem.

[00:42:28] Speaker 02:
No, it doesn't solve the problem at all.

[00:42:30] Speaker 02:
It doesn't solve the problem of detentive stops based on reasonable suspicion, which we are doing, which we want to do, and which we are allowed to do.

[00:42:37] Speaker 02:
And the injunction constricts that by saying that these four factors cannot

[00:42:44] Speaker 02:
support alone or in combination cannot support reasonable suspicion, which is Supreme Court has said you can we cannot do in the Fourth Amendment spaces come up with these categorical rules.

[00:42:56] Speaker 00:
I'm sorry to interject, but, uh, you know, we're probably double over your time and I still have a question for you.

[00:43:07] Speaker 00:
And when I'm done, when I'm done, actually I have two questions.

[00:43:14] Speaker 00:
I'm done.

[00:43:15] Speaker 00:
My colleagues on the bench can ask as many questions as they want.

[00:43:22] Speaker 00:
And then when the.

[00:43:26] Speaker 00:
When the appellee argues to us, we'll provide plenty.

[00:43:41] Speaker 00:
The government is the appellee in the underlying case, but I'm viewing you as the appellant in this motion because the government is trying to stay the order that was entered, correct?

[00:44:06] Speaker 00:
Yes, Your Honor.

[00:44:07] Speaker 00:
Okay, now the other question is,

[00:44:09] Speaker 00:
Am I correct on a legal point that because the government is trying to reverse an injunction or restraining order, that it's the government that has the burden of proof on this motion that you've brought?

[00:44:34] Speaker 02:
You certainly have the burden of showing that we've satisfied the factors for a stay.

[00:44:38] Speaker 02:
I'm not sure it's a burden of proof because I'm not sure it's evidentiary, but we have to convince the court that we're likely to succeed on the merits and that the balance of harms favors the government.

[00:44:48] Speaker 00:
Okay, thank you.

[00:44:48] Speaker 00:
And then my final question is kind of a request based on my being

[00:45:02] Speaker 00:
a little bit of a one trick pony on this issue.

[00:45:08] Speaker 00:
Question is whether you could determine as a representative of the government, whether in fact there is a policy that ICE has directed its field offices

[00:45:27] Speaker 00:
to deport 3,000 people a day.

[00:45:32] Speaker 00:
You know, whether or not that direction is created by ICE or created by the president in executive order or created by some subgroup like, well, there's three of them I was aware of.

[00:45:55] Speaker 00:
by any of those groups.

[00:45:57] Speaker 00:
Could you determine that and then send a 28-J letter to the court that advises if there is such a policy?

[00:46:08] Speaker 02:
Sure, Your Honor.

[00:46:09] Speaker 02:
I will endeavor to do that.

[00:46:11] Speaker 00:
Okay.

[00:46:12] Speaker 00:
Now, Judge Rizan and Judge Song, do you have further questions?

[00:46:18] Speaker 03:
I don't.

[00:46:20] Speaker 03:
I would only ask that, you know, if it's any variation of a 3000, whether it's importations or stops or arrests or whatever it may be, let's not put too fine a point on it, please.

[00:46:32] Speaker 02:
Understood.

[00:46:32] Speaker 02:
Thank you, Your Honors.

[00:46:33] Speaker 00:
I accept that as a friendly amendment.

[00:46:37] Speaker 00:
That's more precise than what I said.

[00:46:41] Speaker 00:
So thank you.

[00:46:43] Speaker 00:
Okay.

[00:46:44] Speaker 00:
Now we'll, we'll proceed.

[00:46:51] Speaker 01:
I'll begin now.

[00:47:01] Speaker 01:
Thank you, Judge Gould.

[00:47:03] Speaker 01:
Good afternoon, Your Honors, and may it please the court, Mohamed Tajsar, for the appellees, the plaintiffs in this case.

[00:47:14] Speaker 01:
You know, Judge Gould, I wanna actually start where you just left off.

[00:47:17] Speaker 01:
You know, we're here on an emergency motion for a stay.

[00:47:22] Speaker 00:
But wait a minute, I have a... My sound was up too high.

[00:47:28] Speaker 00:
Oh, okay.

[00:47:28] Speaker 00:
Go ahead.

[00:47:29] Speaker 01:
Okay.

[00:47:31] Speaker 01:
I'll restart.

[00:47:31] Speaker 01:
You know, we're here on an emergency motion for a stay, you know, which the Supreme Court has called, and I quote, an intrusion into the ordinary processes of judicial review.

[00:47:43] Speaker 01:
So the question for us is, what evidence has the government brought to demonstrate that there is harm that requires an emergency motion for a stay?

[00:47:54] Speaker 01:
And I think this question will help us explain or kind of get to the bottom of our position on the Fourth Amendment question.

[00:48:01] Speaker 04:
That question is related to the question of whether there really is this 3,000 person a day.

[00:48:07] Speaker 05:
That's right.

[00:48:08] Speaker 04:
And if there is, and if it's being impeded, I guess that's an injury.

[00:48:14] Speaker 04:
Then we have to talk about whether the 3,000 persons injury.

[00:48:17] Speaker 00:
I mean, Marcia, Marcia, your voice is fading out a little.

[00:48:23] Speaker 04:
Oh, I'm sorry.

[00:48:23] Speaker 04:
Is that okay now?

[00:48:25] Speaker 00:
I can hear you now, yeah.

[00:48:27] Speaker 01:
All right.

[00:48:28] Speaker 01:
Yes, Judge Berzon.

[00:48:29] Speaker 01:
I guess what I would say is they've offered some evidence for their claim of harm.

[00:48:35] Speaker 01:
So what did they offer as evidence?

[00:48:37] Speaker 01:
In the PARA declaration, that's at 94.2 in the docket below, they say there's confusion because location and occupation are now prohibited factors.

[00:48:48] Speaker 01:
Right, that's from paragraphs 10 to 14.

[00:48:51] Speaker 01:
And in the Quiñones declaration, the second declaration, they say there's confusion about what additional information, if any, would be needed if those factors are used.

[00:49:03] Speaker 01:
So this is what they've said.

[00:49:04] Speaker 01:
They have claimed that the harm from them is that they are location and occupation are prohibited factors.

[00:49:12] Speaker 01:
That is not a harm.

[00:49:13] Speaker 01:
That is a fundamental misreading of what the district court did below.

[00:49:17] Speaker 01:
And that's not because the district court didn't prohibit those factors.

[00:49:21] Speaker 01:
What it said was what this court has said repeatedly for years.

[00:49:26] Speaker 01:
The underlying premise of the district court's restraining order is what this court has said nearly 40 years ago in Rodriguez Sanchez.

[00:49:36] Speaker 01:
It said that reasonable suspicion cannot be based on drawed profiles.

[00:49:40] Speaker 01:
You know, what the government wants to say is that, you know, they want to stay this injunction and send us back to a world where a U.S.

[00:49:51] Speaker 01:
citizen like Brian Gavidia can be grabbed, slammed against a fence and have his phone and ID taken from him just because he was working at a tow yard.

[00:50:00] Speaker 01:
in a Latino neighborhood looking the way he looks, right?

[00:50:03] Speaker 01:
The government's claimed emergency is that the TRO prevents them from carrying out this kind of immigration dragnet based on no more than these broad profiles that are well prohibited by the established law in this circuit.

[00:50:17] Speaker 01:
And the district court's order relied on what the district court said was a mountain of evidence to appropriately prohibit this officially sanctioned practice.

[00:50:27] Speaker 01:
So I'd like to turn to the merits a little bit and talk about some of the procedural issues that my friend raised on the other side and talk about the question of evidence.

[00:50:37] Speaker 01:
So they have taken issue with the procedures that the district court put in place.

[00:50:41] Speaker 01:
But as Judge Sung correctly kind of pointed out, this was not an ex parte request.

[00:50:45] Speaker 01:
They've had plenty of time to address the facts that we put together and offer.

[00:50:51] Speaker 04:
Well, they haven't had that much time.

[00:50:52] Speaker 04:
They had some time.

[00:50:54] Speaker 01:
They had some time.

[00:50:55] Speaker 01:
So they've had 25 days since the TRO application.

[00:50:59] Speaker 01:
So what I would have expected, if I was them, is I would have expected some evidence from the government about the stops.

[00:51:06] Speaker 01:
They say, my friend said on the other side, that they have not provided any evidence from the government.

[00:51:13] Speaker 01:
But that's not true.

[00:51:14] Speaker 01:
The record has evidence from the government.

[00:51:16] Speaker 01:
The only I-213 concerning the stops here was evidence we put into the record.

[00:51:22] Speaker 01:
And that document concerning the arrest of Mr. Vasis Perdomo, it is clear as day, it shows that the government had no evidence, nothing specific to support his detention and his ultimate arrest.

[00:51:37] Speaker 01:
What I anticipate is if the government has more evidence, all the I-213s will look exactly like that.

[00:51:43] Speaker 01:
Because what they're doing and what the district court found is that they're not engaged in the sort of case-by-case assessment of reasonable suspicion.

[00:51:52] Speaker 01:
You know, they claim that we're the ones who offered, and the district court enjoined, a categorical practice, when in reality, they are the ones who are doing categorical determinations.

[00:52:07] Speaker 01:
They're the ones who are making stops and arrests without any case-by-case analysis of reasonable suspicion.

[00:52:15] Speaker 01:
You know, the other thing that the government has pointed out is that they've said, well, this injunction is a categorical rule that's prohibited by the Supreme Court's sort of precedent.

[00:52:26] Speaker 01:
The reality is it's not.

[00:52:28] Speaker 01:
It's actually quite the opposite.

[00:52:30] Speaker 01:
This is a particular immigration enforcement operation.

[00:52:34] Speaker 01:
that the district court considered.

[00:52:36] Speaker 01:
And in that particular context, concerning a particular type of immigration enforcement activity, the district court issued this TRO.

[00:52:45] Speaker 01:
If this court denies the motion and affirms the validity of the TRO, it's not going to be making a categorical rule that applies broadly throughout the circuit.

[00:53:01] Speaker 01:
That's not what this case is about.

[00:53:03] Speaker 01:
This case concerns a TRO that's based upon... Well, we wouldn't be making a categorical statement, wouldn't we?

[00:53:12] Speaker 04:
or maybe it would just be a difference to the district court that these four factors together are not sufficient for reasonable suspicion.

[00:53:20] Speaker 01:
I think that's right, Judge Berzon, but I think the principle that that rule is coming from is a principle that says that these four factors have to be understood in a particular context.

[00:53:31] Speaker 03:
I'm actually sorry because either way I understand the evidence and the allegations of

[00:53:37] Speaker 03:
the complaint and the application for a TRO and the order read as a whole is that they were saying these four factors in the LA area where the Hispanic population is essentially on average, you know, almost 50% of the population, that there's large numbers of people who fit these descriptions, who fit these four factors with legal status.

[00:54:05] Speaker 03:
And that

[00:54:06] Speaker 03:
In this region of the country, these four factors cannot possibly weed out those who have undocumented status and those who have documented legal status, that these four factors in this region is not sufficiently prohibitive.

[00:54:28] Speaker 03:
All they do is form a general profile that fits both lawful and unlawful

[00:54:34] Speaker 03:
people with lawful and unlawful status.

[00:54:36] Speaker 03:
And that is essentially all that the TRO is enjoining is the use of these four factors in this region, in this factual context where this operation is taking place.

[00:54:51] Speaker 01:
That's where I judge song and that that intuition, you know that comes from I think is well supported by both this court's case law and the Supreme Court, you know the Supreme Court in our visa said precisely the same point that your honor is making, you know they said and I'm quoting here, you know, we think it's quite reasonable that a driver's various actions that were observed.

[00:55:12] Speaker 01:
quote, might well be unremarkable in one instance, such as a busy San Francisco highway, while quite unusual in another, such as a remote portion of rural southeastern Arizona.

[00:55:26] Speaker 01:
That's what the Supreme Court said.

[00:55:27] Speaker 01:
So that basic principle that when you apply these general four factors based on broad profiles, general characteristics to an area,

[00:55:38] Speaker 01:
that is, you know, that is one of the most diverse cities and regions in the world that you're likely to ensnare just as many people with status as people without status.

[00:55:48] Speaker 01:
And therefore it cannot be, it cannot meet the individualized, particularized suspicion requirements.

[00:55:57] Speaker 04:
Suppose they were to come in on the Plurary Injunction and demonstrate that somebody did a study of, you know, everybody who stands in front of home depots to,

[00:56:08] Speaker 04:
get day work and that 80% of them are actually not legally in the country.

[00:56:15] Speaker 04:
Would that matter?

[00:56:16] Speaker 04:
I think it would matter.

[00:56:18] Speaker 04:
Would it be enough?

[00:56:19] Speaker 04:
I don't think so.

[00:56:21] Speaker 04:
In Paris Cruz, for example, they had some evidence, although it was old, that this workplace had 200 or 300 illegal aliens at some point.

[00:56:33] Speaker 04:
And we said that I suspected that MSC was employing undocumented workers, just not provide reasonable suspicion that Perez Cruz himself was undocumented.

[00:56:43] Speaker 04:
It's the fundamental tenet of the Fourth Amendment that a search or seizure of a person must be supported by probable cause particularized with respect to one person.

[00:56:53] Speaker 04:
So that is

[00:56:55] Speaker 01:
You know, a kind of hard question.

[00:56:58] Speaker 01:
Yeah, I think the question is particularity.

[00:57:00] Speaker 01:
You know, this the Supreme Court in Ibarra sort of set as particular to the person or particular to the workplace or particular to the location.

[00:57:08] Speaker 01:
It has to be particular to the person.

[00:57:09] Speaker 01:
You know, the person who's detained, there has to be reasonable suspicion as to that particular person.

[00:57:14] Speaker 01:
You know, so consider the Supreme Court's decision in Ibarra.

[00:57:17] Speaker 01:
You know, there, the Supreme Court said Terry requires suspicion as to the particular person, even if, quote, that person happens to be on premises where an authorized narcotic search is taking place.

[00:57:29] Speaker 01:
In Ibarra, that was a warranted investigation of a particular tavern based on probable cause, and the Supreme Court still said you need to have particularity as to the individual who is frisked.

[00:57:45] Speaker 01:
That's the same principle in Perez Cruz.

[00:57:48] Speaker 01:
Even in a warranted investigation, they had a warrant in that case in Van Nuys, you still need particularity as to the particular people.

[00:57:55] Speaker 04:
You would say that with respect to detentions for now, with respect to coming up and coming and asking people questions.

[00:58:01] Speaker 01:
Oh, correct.

[00:58:02] Speaker 01:
Nothing in the TRO stops the government from doing ordinary sort of investigations that they claim they're trained to do, investigations that could involve.

[00:58:12] Speaker 04:
What if they arrive with the masked people and the guns and the big trucks and all that, and then talk to somebody and ask them questions?

[00:58:20] Speaker 01:
Yeah, so we would say that is, you know, depends on the facts, but that is not a consensual encounter.

[00:58:26] Speaker 01:
You know, we press this argument below.

[00:58:27] Speaker 01:
The government has not defended its position on appeal.

[00:58:31] Speaker 01:
They essentially, as I understand it, they've essentially conceded that there are seizures happening.

[00:58:35] Speaker 01:
You know, I think if they were to come in and say, actually, no, no, no, these were all consensual encounters.

[00:58:39] Speaker 04:
When we run up on that is what their declaration said we're doing consensual encounters.

[00:58:44] Speaker 01:
It may well be, they haven't pressed that argument, and I think they're going to have a very difficult time with the case law.

[00:58:49] Speaker 01:
I mean, the United States v. Washington, from this court, identifies a number of different factors that determine whether or not there's a consensual encounter.

[00:58:57] Speaker 01:
And literally, in any one of those five things, things like how many officers are there, whether there's physical force, like if they touch a person, if they block ingress and egress, the numbers of officers, whether there's guns.

[00:59:11] Speaker 01:
the declarations that we have offered to the district court demonstrate that basically every single one of those factors was present in each of these stops.

[00:59:20] Speaker 01:
So on that record, it would seem to be incredibly difficult for the government to say, oh, actually, you know what?

[00:59:26] Speaker 01:
If a masked ICE agent comes without identifying themselves and has an assault rifle and stands up right next to you and blocks your ingress and egress, that's just a consensual encounter.

[00:59:36] Speaker 01:
I don't think they could credibly make that argument.

[00:59:38] Speaker 01:
But that's why what they're arguing here is that they had reasonable suspicion.

[00:59:42] Speaker 01:
The problem is they haven't offered actual evidence in any of these particular cases.

[00:59:46] Speaker 01:
We did.

[00:59:46] Speaker 01:
And the evidence that we presented shows, you know, in the I-213 of Mr. Perdomo Vasquez, it doesn't say anything about why he was stopped.

[00:59:53] Speaker 01:
You would expect that it would say something there, you know, and to go back to the question about, you know, they haven't had that much opportunity to offer evidence, perhaps, but I would have expected maybe some evidence as to one or two of these stops.

[01:00:06] Speaker 01:
You know, but the district court reviewed a record that by our count had more than two dozen incidents.

[01:00:12] Speaker 01:
supported by about 20 declarations.

[01:00:16] Speaker 01:
You know, one or two, they could have done that, but they haven't done that.

[01:00:19] Speaker 01:
That's why the District Court called this a mountain.

[01:00:21] Speaker 04:
I assume that the pertinence of the declarations that don't pertain to the name plaintiff sorts of people who are said to be members of the organizations is really to show the policy or pattern.

[01:00:30] Speaker 01:
Exactly right, exactly right.

[01:00:32] Speaker 01:
And that's not, that's just to demonstrate how widespread this practice is.

[01:00:36] Speaker 01:
But to go on,

[01:00:36] Speaker 04:
What about the articles that are attached to the, that are referenced in the complaint, not attached to the complaint, and weren't actually individually introduced into the record?

[01:00:45] Speaker 04:
Do we, can we look at those at all?

[01:00:48] Speaker 01:
I think you can, Judge Berzon.

[01:00:49] Speaker 01:
I think the, you know, those news articles are based on statements made either by witnesses or by, you know, the government's own sort of leadership about what happened here.

[01:01:03] Speaker 01:
And I think the district court can correctly did

[01:01:08] Speaker 01:
And can in the future consider those because they, you know, the evidence doesn't have to necessarily be in an admissible format, at least at this stage, but you know it so long as we can depose for instance, the Greg Bavino one of the defendants here who runs the border patrol sector.

[01:01:24] Speaker 01:
that is that issue here, we can depose him and ask him, hey, is it true that you said we have 50 strike teams on any given day that are going out and conducting these raids?

[01:01:35] Speaker 01:
And that would demonstrate, yeah, actually they have a policy and that's what they're, you know, they have a practice that's officially authorized and this is what they're doing.

[01:01:43] Speaker 01:
You know, on the question of officially sanctioned practice, if I may, there is quite a bit of evidence in the record that we provided to the district court, which enabled the district court on page 35 to say that there is a, quote, plethora of evidence of an officially sanctioned policy.

[01:02:00] Speaker 01:
This very practice was a practice that the defendants, the government,

[01:02:06] Speaker 01:
launched in the Central Valley in Kern, and it resulted in a preliminary injunction there.

[01:02:15] Speaker 01:
The government officials who led that practice prior to the entry of the preliminary injunction, they called that program a, quote, proof of concept, end quote.

[01:02:25] Speaker 01:
We cite this in our TRO application in footnote 28.

[01:02:29] Speaker 01:
They said it's a proof of concept.

[01:02:31] Speaker 01:
You know, we also cite statements and reporting that demonstrates that the leadership at the White House instructed the defendants to stop focusing on targeted enforcement and criminals and just go out and round up people at 7-elevens and Home Depots.

[01:02:46] Speaker 01:
Those statements were newspaper articles, basically.

[01:02:49] Speaker 01:
They were.

[01:02:49] Speaker 01:
Those were newspaper articles.

[01:02:50] Speaker 01:
The proof of concept is a quote.

[01:02:52] Speaker 01:
And then, and to put that, you know, to put that whole issue to bed, their own statements, you know, defendants' own statements in the Quiñones Declaration and in the Harvick Declaration sort of confirmed the existence of the policy.

[01:03:05] Speaker 01:
you know in the in the harvick declaration at um at paragraph seven you know he says there are certain types of businesses including car washes who have been selected for encounters because past experience has demonstrated that illegal aliens utilize and seek work you know that's precisely our point that they you don't you don't doubt that this is for functional purposes for appeal purposes at this point of preliminary injunction because it doesn't have any any end date

[01:03:30] Speaker 01:
You know, we haven't pressed that argument, Judge Berzon.

[01:03:33] Speaker 01:
I mean, there is a preliminary injunction hearing set.

[01:03:35] Speaker 04:
Yes, but it's way past 14 days.

[01:03:37] Speaker 01:
It is way past 14 days.

[01:03:39] Speaker 01:
So we're not pressing the sort of jurisdiction.

[01:03:40] Speaker 04:
So in light of that, is there any plan for any discovery before the preliminary injunction hearing?

[01:03:46] Speaker 01:
We haven't discussed that yet with the government.

[01:03:49] Speaker 01:
We might, but we haven't done that yet.

[01:03:50] Speaker 04:
Because it's an awfully long period for a preliminary injunction in circumstances like this, actually.

[01:03:55] Speaker 01:
I agree.

[01:03:56] Speaker 04:
It wasn't your request.

[01:03:58] Speaker 04:
I know that.

[01:03:58] Speaker 01:
That's right.

[01:03:58] Speaker 01:
That's right.

[01:03:59] Speaker 01:
We requested an expedited preliminary injunction schedule.

[01:04:02] Speaker 01:
The government wanted additional time and the discord gave them additional time.

[01:04:05] Speaker 01:
And you know, this goes back again to go back to the process issue.

[01:04:07] Speaker 01:
The government can contest anything it wants in the at the PI stage.

[01:04:11] Speaker 01:
Or what it could do is do what Rule 65 provides.

[01:04:14] Speaker 01:
They could move to dissolve the TRO based on new evidence that they come up in the course of their investigation.

[01:04:20] Speaker 01:
But they haven't done that.

[01:04:21] Speaker 01:
They've run to this court and asked this court to stay the injunction.

[01:04:25] Speaker 01:
And they've said that, you know, and they say that because... You could also agree to have a trial in America now.

[01:04:32] Speaker 01:
We can do any of those things, but the government hasn't offered any of those.

[01:04:38] Speaker 01:
And what we're trying to do is we're trying to resolve the harm that our clients are facing every day.

[01:04:45] Speaker 01:
And we're trying to move expeditiously.

[01:04:47] Speaker 01:
And the government has plenty of opportunity to contest any of the... I have another question.

[01:04:53] Speaker 04:
The district court did not specifically find standing as to the organizational plaintiffs.

[01:05:01] Speaker 04:
affect our ability to do so?

[01:05:04] Speaker 01:
No, I don't think so.

[01:05:05] Speaker 01:
I mean, this court has to assure itself and indeed the district court of jurisdiction in this case.

[01:05:10] Speaker 01:
And I think there's plenty on the record to support standing of the organizations.

[01:05:15] Speaker 01:
I think the district court, it did on page 46, it did say that the stop and arrest plaintiffs have established that organizational plaintiffs and their members have experienced significant harm and they're likely to suffer irreparable harm.

[01:05:27] Speaker 01:
The district court did make that finding,

[01:05:29] Speaker 01:
That's not enough, you know, this court, and this court has to assure itself of the existence of the controversy.

[01:05:37] Speaker 04:
And we can do it de novo, basically.

[01:05:39] Speaker 01:
You can do it de novo.

[01:05:40] Speaker 01:
I think there's a little question about the likelihood of recurrence.

[01:05:44] Speaker 01:
You know, this court in Melendez said that that's a quasi-factual determination.

[01:05:49] Speaker 04:
The likelihood of what, I'm sorry?

[01:05:51] Speaker 01:
Sorry, the likelihood of recurrence of injury.

[01:05:53] Speaker 01:
I see.

[01:05:53] Speaker 01:
Any particular person.

[01:05:55] Speaker 01:
That's clear error review.

[01:05:57] Speaker 04:
With regard to the...

[01:05:59] Speaker 04:
organizations that's not any particular person.

[01:06:03] Speaker 01:
That's not any particular person, but in the declarations we have offered lots of stories about individual members who were harmed in exactly this way.

[01:06:12] Speaker 04:
What I'm saying is my understanding is that they would satisfy standing if some other other member was going to be stopped and have the same person.

[01:06:21] Speaker 04:
I don't think.

[01:06:22] Speaker 01:
I think that's right.

[01:06:23] Speaker 01:
I think that's right.

[01:06:25] Speaker 01:
Either way, we have enough on this record.

[01:06:27] Speaker 01:
On this record, anybody who was stopped is like we think.

[01:06:30] Speaker 01:
So for instance, in the UFW, the United Farm Workers Declaration, there's an anecdote about a US citizen member named Angel, who's a day laborer who was stopped in precisely the same way.

[01:06:43] Speaker 01:
And he's a day laborer, so he's concerned that he's going to be stopped again.

[01:06:46] Speaker 04:
Is there one other question?

[01:06:53] Speaker 04:
whether there is any plan to attempt to preliminarily certify a class at the time of the preliminary injunction.

[01:07:01] Speaker 01:
Yeah, I think, you know, we haven't talked with the government about this, but I think that is our plan.

[01:07:04] Speaker 01:
Eventually, we will try to do that.

[01:07:06] Speaker 01:
You know, we obviously, you know, at the TRO stage, when it's an emergency, it's difficult to try to move for a class, but that is something that we plan to do.

[01:07:14] Speaker 04:
What about the fact that the Supreme Court in the AARP case said that you could have a putative class?

[01:07:21] Speaker 01:
I think that is what we will seek.

[01:07:24] Speaker 04:
A punitive class or a preliminarily certified class?

[01:07:27] Speaker 01:
So I think for me, this is my own sort of opinion about this.

[01:07:33] Speaker 01:
It's not clear to me that a provisional class kind of in the language like kind of exists.

[01:07:38] Speaker 01:
I think we would go through the same certification process that happens if you move, whether it's provisional, quote unquote, or you just move for class certs.

[01:07:45] Speaker 01:
It's basically the same standard.

[01:07:46] Speaker 04:
All right, but in the Supreme Court in one of the state cases, two of the state cases actually,

[01:07:51] Speaker 04:
said that a putative class could support the.

[01:07:54] Speaker 04:
That's exactly.

[01:07:55] Speaker 04:
Putative class is different.

[01:07:56] Speaker 04:
Putative class means one that isn't certified at all.

[01:07:58] Speaker 04:
It's just assertive.

[01:08:00] Speaker 01:
Oh, I understand, Judge Verzahn.

[01:08:02] Speaker 01:
So I can't tell you whether or not we're going to proceed on a putative class.

[01:08:10] Speaker 01:
Suffice it to say, I think we will move to certify a class.

[01:08:13] Speaker 01:
I think that is our current intention.

[01:08:14] Speaker 01:
And so even if we didn't, to the extent that you're concerned about the scope of relief question,

[01:08:21] Speaker 01:
I would just point your honors to the Washington v Trump case from last week that makes clear exact three things actually that the scope of the injunction that we have sought is that entitled to to quite a bit of discretion and that the discourse.

[01:08:38] Speaker 01:
ability to review the scope of that injunction is, of course, in the language of last week, is narrow.

[01:08:45] Speaker 01:
You know, the second thing I'd say just about that is that, you know, the government did not present any alternatives as to what an injunction could look like that would provide adequate relief to our

[01:08:56] Speaker 01:
plaintiffs and that again based on last week's decision from this court that's fatal to any attempt from them to try to get out from underneath this injunction.

[01:09:05] Speaker 01:
And then the last thing is there are alternatives that they finally offered on reply are really inadequate and I would just point your honors to easy writers and and in-depth and a few of these other cases.

[01:09:16] Speaker 00:
I have a final question.

[01:09:20] Speaker 00:
In the history and the annals of US law, ever since the United States has monitored immigration, has there ever been a government agency that sought to write a target for 3,000

[01:09:44] Speaker 00:
persons to be removed per day.

[01:09:49] Speaker 01:
You know, Judge Gould, I don't know the answer to that question.

[01:09:52] Speaker 01:
It would seem to be quite unusual.

[01:09:55] Speaker 01:
And that's one of the pieces of evidence that we have pointed to that demonstrates the existence of a policy.

[01:10:02] Speaker 01:
And just one clarification on that 3000 number.

[01:10:05] Speaker 01:
I believe it's 3000 arrests.

[01:10:07] Speaker 01:
And one of the things we've pointed to in the evidence, we've pointed to how exactly the government has said they want to effectuate those arrests.

[01:10:15] Speaker 01:
They have said that they want to push the envelope, turn the creativity knob up to 11.

[01:10:23] Speaker 01:
They have said if it ends in handcuffs, go out there and do it.

[01:10:27] Speaker 01:
Now, they're not going to say go out and violate the law, but there's been a wink and a nod from leadership to agents on the ground, to them that says, you know what, dispatch with the ordinary rigors of the law and go out there and snatch anybody up.

[01:10:42] Speaker 01:
Really, the proof is in the pudding here.

[01:10:44] Speaker 01:
You know, they said in response to, you know, the secretary said in response to a question from a reporter about the TRO, the secretary said, nothing will change about what we're doing.

[01:10:56] Speaker 01:
You know, if that nothing will change, and if that's true, then why are we here?

[01:11:00] Speaker 01:
It's not clear why we're at an emergency sort of posture here.

[01:11:04] Speaker 01:
The problem is for them, nothing will change.

[01:11:07] Speaker 01:
But for us, everything will change.

[01:11:09] Speaker 01:
You know, there are more than a dozen cities and counties who have come into this court and said that there's an extraordinary amount of fear and trepidation and injury that's happened throughout Southern California.

[01:11:21] Speaker 01:
That's why cities have cancelled 4th of July celebrations.

[01:11:25] Speaker 01:
That's why we have clients who have offered their stories, who have said that they're forced to spend money on Ubers and Lyfts because they've seen ICE agents hit bus stops and they're afraid of going on the bus.

[01:11:36] Speaker 01:
You know, on this record, where there's so many people with status, citizens, asylees who have been harmed and seized by the government, you know, I don't think there's any possibility for the district court not to have issued this TRO.

[01:11:53] Speaker 01:
And I would ask that this court not disturb the district court's well-reasoned analysis and the TRO here.

[01:12:00] Speaker 01:
So with that, thank you so much.

[01:12:03] Speaker 00:
Next, let's hand any questions from Judge Brazan or Judge Sung.

[01:12:11] Speaker 00:
Okay, hearing none.

[01:12:15] Speaker 00:
I think we'll return to the government and initially the government wanted three minutes for rebuttal, but we spent a lot of time.

[01:12:28] Speaker 00:
And of course we've got time on this important case.

[01:12:33] Speaker 00:
So if you need more than three minutes, just ask me.

[01:12:40] Speaker 02:
Thank you, your honor.

[01:12:41] Speaker 02:
I appreciate that.

[01:12:42] Speaker 02:
I'll try to be brief, but happy to answer any further questions, of course.

[01:12:47] Speaker 02:
First, on the standing issue, I think it's clear that without an official policy, they have no basis to distinguish Lyons and Audres-Durgan.

[01:12:57] Speaker 02:
I mean, we don't think even that is enough, but it's certainly a bare minimum of what they need.

[01:13:01] Speaker 04:
Audres-Durgan and Armstrong.

[01:13:07] Speaker 04:
I think was Armstrong, yeah, specifically said, with regard to Article 3 standing, that the distinctions that are present here sort of back out lines.

[01:13:22] Speaker 04:
They cause the chain of causation and the

[01:13:25] Speaker 04:
The fact that the plaintiffs don't actually have to do anything to be accosted and several other things.

[01:13:33] Speaker 04:
So the part of Hodges-Jergen that you're relying on is not the standing part.

[01:13:40] Speaker 04:
Because the standing part was to the contrary of what you're saying.

[01:13:42] Speaker 02:
Well, the court didn't decide standing in Hodgers-Durgan.

[01:13:45] Speaker 02:
The court said, we're not sure if they're standing.

[01:13:48] Speaker 04:
Well, it was cited in Armstrong as if it did decide standing.

[01:13:52] Speaker 02:
Okay.

[01:13:52] Speaker 02:
Armstrong, I think, is entirely different, because in Armstrong, the universe of people covered by the policy was much, much smaller.

[01:14:01] Speaker 02:
The same was true in Old Duke, where you had a policy that applied to a pretty limited universe, and the court said, yeah, okay, there, there's a sufficient likelihood.

[01:14:09] Speaker 02:
When you're talking about generalized law enforcement practices that could cover anybody in a district or city, that to me is classic Lyons territory or Hodgers-Durkin territory.

[01:14:18] Speaker 02:
Whether you think of it as Article 3 or irreparable harm, you get to the same place, which is no injunction.

[01:14:23] Speaker 02:
Now, the point I wanted to make was that plaintiffs principally rely on Duke and Melendrez, which are the sort of broad Fourth Amendment injunctions that were issued after Lyons.

[01:14:34] Speaker 02:
And I just, I went back and looked because the

[01:14:36] Speaker 02:
It was interesting.

[01:14:38] Speaker 02:
Both of those cases involved close to five years of litigation before district courts entered those injunctions.

[01:14:44] Speaker 02:
Here we have five business days.

[01:14:46] Speaker 04:
And there was a lot of moaning about that shouldn't have been and we should have just gotten to the merits a lot faster and so on.

[01:14:54] Speaker 02:
And there's probably a happy meeting there, Your Honor.

[01:14:56] Speaker 02:
But I do think there needs to be enough.

[01:14:57] Speaker 02:
I mean, it's a very serious thing to say that multiple federal government agencies have a policy of violating the Constitution.

[01:15:04] Speaker 02:
That's a serious thing to say.

[01:15:05] Speaker 02:
And I would suggest that that requires more than two business days of fact development before a district court should enter a sweeping injunction of this sort on that limited of a record.

[01:15:19] Speaker 02:
With respect to the Fourth Amendment, I'll just say-

[01:15:23] Speaker 03:
This is temporary.

[01:15:25] Speaker 03:
There is going to be a preliminary injunction hearing at which you will have the opportunity to provide different evidence.

[01:15:32] Speaker 03:
And then a merits hearing, which you could if, as you say, there is evidence showing that either of these things aren't occurring or that there is more basis for reasonable suspicion, you will have full opportunity to prove that.

[01:15:49] Speaker 03:
Is that right?

[01:15:49] Speaker 02:
I'm not sure, Your Honor, because

[01:15:53] Speaker 02:
I'm actually not sure there can be a preliminary injunction hearing right now, given that there is a preliminary injunction in place that's on appeal.

[01:15:59] Speaker 02:
So it's a little bit complicated jurisdictionally.

[01:16:01] Speaker 02:
If this court vacates the TRO, then yes, we will have PI proceedings and a fuller opportunity to make.

[01:16:08] Speaker 03:
Yeah, proceeding schedules.

[01:16:10] Speaker 03:
Is there not.

[01:16:12] Speaker 02:
It is scheduled, but we've objected on jurisdictional grounds because the district court has been divested of jurisdiction over the P.I.

[01:16:20] Speaker 02:
because the district court already issued a P.I.

[01:16:22] Speaker 04:
I thought the district court has never dismissed of jurisdiction even by a P.I.

[01:16:26] Speaker 04:
and it certainly can go ahead with a final judgment in the meanwhile just all the time.

[01:16:32] Speaker 02:
Yeah, you can do final judgment, but another preliminary- Why can't you have a different plurinary injunction?

[01:16:36] Speaker 02:
It could be different, but it can't be the same, which is what they've asked for.

[01:16:38] Speaker 04:
So they've asked for that identity- Well, I mean a different one, meaning a second one, an additional one.

[01:16:44] Speaker 02:
I don't mean to be introducing this issue into-

[01:16:47] Speaker 02:
to this proceeding, it's not really presented, but to answer the question.

[01:16:50] Speaker 02:
Yes, we would be happy to present evidence, but we don't think that happened.

[01:16:54] Speaker 02:
We don't think it's fair that that happened, that we were hit with this sweeping injunction on a very limited and incomplete record, where the only evidence of our policy was a declaration that said, yes, reasonable suspicion is what we require when we go beyond a consensual encounter.

[01:17:11] Speaker 03:
You're not actually doing what the district court found you to be doing.

[01:17:17] Speaker 03:
then and has enjoined you from doing, then there should be no harm.

[01:17:23] Speaker 03:
There's, you're only actually constrained if you're doing what she found you to be doing and is telling you to not do, which you're either it's unclear denying that you're doing it all or you're saying it's lawful.

[01:17:36] Speaker 03:
So if, you know, but if it seems on the evidentiary issue, you have to be saying we're not doing that.

[01:17:42] Speaker 03:
then you'll have the opportunity to show that.

[01:17:44] Speaker 03:
But if you're not doing that, then you're not actually affected.

[01:17:49] Speaker 02:
So this goes to the irreparable harm.

[01:17:52] Speaker 03:
Sorry.

[01:17:52] Speaker 03:
Then you get to your argument about confusion about what you can and can't do.

[01:17:58] Speaker 03:
But if we disagree that the district court's order is confusing, then what is the harm to being told not to do something that you claim you're already not doing?

[01:18:10] Speaker 02:
Thank you.

[01:18:11] Speaker 02:
Thank you for raising that.

[01:18:12] Speaker 02:
I wanted to hit that point.

[01:18:13] Speaker 02:
So there's two aspects to it.

[01:18:15] Speaker 02:
The first part of the injunction says don't stop people without reasonable suspicion.

[01:18:20] Speaker 02:
That is a follow the law injunction that imposes harm because it's too imprecise.

[01:18:26] Speaker 02:
Yes, we believe we have reasonable suspicion for the stops, but when an injunction says that, it means the agents in the field are faced with a threat of contempt if the district court later concludes that their judgment call about the multi-factor totality of the circumstances balancing test was wrong.

[01:18:43] Speaker 02:
That's why we don't do follow the law injunctions.

[01:18:46] Speaker 02:
So that's part one of the injunction.

[01:18:48] Speaker 02:
Part two, as to the four factors, it's a two-fold harm.

[01:18:53] Speaker 02:
One, we do think that there might be cases where those four factors could support reasonable suspicion, or at least that it's inconsistent with the Fourth Amendment to rule that out preemptively.

[01:19:04] Speaker 02:
And so the inability to do that is a form of harm.

[01:19:08] Speaker 02:
And then- You're not doing it.

[01:19:11] Speaker 02:
I didn't say we're not stopping people based on the four factors.

[01:19:14] Speaker 02:
I said we believe the four factors alone could, in appropriate circumstances, support reasonable suspicion.

[01:19:20] Speaker 02:
It depends on the facts.

[01:19:21] Speaker 02:
It depends on what you mean by some of these factors.

[01:19:24] Speaker 02:
But we certainly are saying those four factors under the Fourth Amendment are not categorically inadequate.

[01:19:30] Speaker 02:
And the Supreme Court has said... Nobody is saying they are.

[01:19:34] Speaker 04:
I mean, let's just back that out of the discussion.

[01:19:37] Speaker 04:
All right.

[01:19:38] Speaker 04:
If you really still think there's something unclear about the district court opinion, we will clarify.

[01:19:44] Speaker 03:
So just the district court, let's take off the table that you can't consider those four factors at all.

[01:19:51] Speaker 03:
What I hear you to be saying is that you dispute the idea that reliance on these four factors alone in combination is insufficient.

[01:20:00] Speaker 03:
This gets back to the point I was asking you about before, which is that you basically didn't make that argument in your motion, except for in a few sentences, one conclusory sentence in your opening motion, and maybe a paragraph in reply.

[01:20:20] Speaker 03:
So you've made a related point about categorical exclusion, but you know,

[01:20:31] Speaker 03:
in your alternative argument that even if, you know, you have not squarely argued in your motion that opening motion, other than one conclusory sentence, that reliance on these four factors alone or in combination is not sufficient to form reasonable suspicion.

[01:21:00] Speaker 03:
in this context.

[01:21:02] Speaker 03:
So that has been a focus of your oral argument, but it's surprising to me because it was not at all the focus of your actual motion.

[01:21:13] Speaker 02:
Your honor, I think it's subsumed by the point we were making in the motion, which is that under the Fourth Amendment, under Valdez Vega and Arvizu and Banks, the court cannot say in advance, here is a formula, this doesn't work.

[01:21:28] Speaker 02:
across a whole set of cases.

[01:21:30] Speaker 02:
This court has said it can't be divorced from a particular sob that's challenged.

[01:21:35] Speaker 02:
That's why we do this usually after.

[01:21:36] Speaker 03:
I understand that is actually your argument.

[01:21:39] Speaker 03:
Yes.

[01:21:40] Speaker 03:
Okay.

[01:21:41] Speaker 03:
I understand that to be your argument, but that's a different one in my opinion from whether if we disagree with that argument, these four factors alone only

[01:21:57] Speaker 03:
show a broad profile and not particularized individualized suspicion enough to support a detentive stop.

[01:22:08] Speaker 02:
I understand, Your Honor.

[01:22:09] Speaker 02:
All I would say is I think the reason we don't do these broad

[01:22:13] Speaker 02:
formula, formula I, is because it is possible that on a particular fact pattern, it will cross the line or won't.

[01:22:20] Speaker 02:
And we don't want to try to preemptively adjudicate that.

[01:22:24] Speaker 04:
Suppose we had an injunction saying you couldn't rely on Hispanic appearance alone.

[01:22:30] Speaker 04:
Would that be a valid injunction?

[01:22:34] Speaker 02:
Well, what this court said on that was it's generally not sufficient.

[01:22:38] Speaker 02:
I can't think of a case where it would be sufficient.

[01:22:40] Speaker 02:
But I also don't think you could have an injunction.

[01:22:43] Speaker 04:
You can't stop people based on Hispanic barriers.

[01:22:48] Speaker 02:
I don't think we would appeal because I don't I can't think of an example where it would matter.

[01:22:52] Speaker 02:
But I think as a matter of sort of

[01:22:56] Speaker 02:
standard Fourth Amendment doctrine, you don't decide those questions.

[01:22:59] Speaker 04:
Here, for example, there were several people who said that people in the same place at the same time doing the same thing or did not have a spatic appearance were not stopped.

[01:23:11] Speaker 02:
And Your Honor, for all we know,

[01:23:13] Speaker 02:
The agents who went in there had just spoken to a source who said, there are three Guatemalans who are unlawful sadists who are working in this place.

[01:23:20] Speaker 02:
We have no idea.

[01:23:21] Speaker 02:
And if they said that, it would make perfect sense for them to arrest those people and not the other people.

[01:23:26] Speaker 02:
There's other evidence in the record that says they arrested Persians, and they arrested Russians, and they arrested others.

[01:23:31] Speaker 02:
So it's case by case.

[01:23:33] Speaker 04:
Actually, it said they didn't arrest the Persians and the Russians is what it said.

[01:23:37] Speaker 02:
That declaration said they didn't.

[01:23:39] Speaker 02:
There are other declarations where they did, which is, again, all of this is confirming my point, which is we cannot decide these things in a vacuum.

[01:23:48] Speaker 02:
There's a way these Fourth Amendment questions come up after the fact where the court can say, you know, I think you crossed the line from consensual encounter to detention based on the totality of the circumstances, and I think you didn't have reasonable suspicion based on the totality of the circumstances.

[01:24:03] Speaker 02:
But when we try to back up and do this in advance,

[01:24:06] Speaker 02:
to cover a broad category of cases by border patrol and ICE and FBI and DEA and ATF, we are going to make mistakes and it's going to be over broad.

[01:24:16] Speaker 02:
And that's why the law doesn't allow for that.

[01:24:18] Speaker 02:
And that's our fundamental problem with this, with this injunction.

[01:24:24] Speaker 00:
I have a question on timing of our decision.

[01:24:29] Speaker 00:
Do either of you have an idea of

[01:24:35] Speaker 00:
the outside date when you'd like us to render a decision by?

[01:24:46] Speaker 02:
Your Honor, we don't try not to tell courts when to decide things.

[01:24:51] Speaker 02:
We obviously think this is urgent.

[01:24:54] Speaker 02:
And there are ongoing operations that make it important.

[01:24:58] Speaker 02:
And that's why we've sought relief quite quickly and would appreciate a quick decision so that if needed, we can seek further relief.

[01:25:05] Speaker 02:
But I don't have like a date because there isn't some deadline coming up that's, you know, that's going to make some critical difference.

[01:25:13] Speaker 02:
Every day is important.

[01:25:16] Speaker 00:
Thank you.

[01:25:19] Speaker 01:
Council, Judge Gould, if that was a question for me as well, I'd say the same thing.

[01:25:23] Speaker 01:
We don't have a date.

[01:25:26] Speaker 01:
We'd leave it up to the court.

[01:25:29] Speaker 00:
It sounds like both of you would like us to issue a decision as early as we can and ahead of waiting for the district court.

[01:25:43] Speaker 02:
Yes, Your Honor.

[01:25:44] Speaker 02:
Thank you.

[01:25:45] Speaker 02:
Happy to answer any further questions, but I realize I'm well over my time for

[01:25:49] Speaker 00:
Well, that's okay.

[01:25:49] Speaker 00:
We asked you a lot of questions.

[01:25:52] Speaker 00:
I wouldn't say we appreciate the excellent arguments on both side of the case.

[01:26:00] Speaker 00:
And you both helped up our panel a great deal by eliminating your respective positions and

[01:26:12] Speaker 00:
can't speak for each of my colleagues today on this.

[01:26:16] Speaker 00:
But for me at least, the argument and the advocacy is the most important part of the process.

[01:26:28] Speaker 04:
I'd like to add an appreciation for both arguments as well.

[01:26:31] Speaker 04:
They were helpful, measured, and well put together.

[01:26:37] Speaker 00:
Thank you, Your Honor.

[01:26:38] Speaker 00:
getting nothing to say anything further.

[01:26:42] Speaker 00:
Hearing nothing, this case will now be submitted.

[01:26:47] Speaker 00:
We apologize or I apologize for wearing out council and my panel.

[01:26:56] Speaker 00:
But with that, we shall adjourn and you will hear from us in due course.

[01:27:04] Speaker 01:
This court for this session stands adjourned.