The Volokh Conspiracy
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Florida Judge Seeks To Enjoin Parties Not Before Her Court
And she is considering holding the Florida Attorney General in contempt for pointing out the limits of the judge's order
Florida enacted a law that permits law enforcement officials to arrest illegal aliens who enter the state. The ACLU filed suit against the state Attorney General, statewide prosecutors, and state attorneys, from enforcing the law. But the complaint did not name Florida law enforcement officials. Two days later, the District Court Judge entered an Ex Parte TRO "prohibiting Defendants and their officers, agents, employees, attorneys, and any person who are in active concert or participation with them from enforcing" the Florida Law. At a subsequent hearing, the Judge asked if she could bind all law enforcement officials, even if they are not parties or subject to the Defendants' control.
Attorney General James Uthmeier sent an email to state law enforcement officials. The email stated, in part, "It is my view that no lawful, legitimate order currently impedes your agencies from continuing to enforce Florida's new illegal entry and reentry laws."
NEW: Today, Florida AG @AGJamesUthmeier filed a brief in federal court arguing that law enforcement agencies are not part of the ACLU's lawsuit against FL's new anti-illegal immigration laws, and they cannot be bound by the judge's order preventing enforcement.
He sent this… pic.twitter.com/XsqPZRHssA
— Bill Melugin (@BillMelugin_) April 23, 2025
The Attorney General's brief explains the position:
Those law-enforcement officers do not fit into the "traditional understanding of whom a federal injunction binds." Robinson, 83 F.4th at 878. They are not parties. Nor are they Defendants' "officers or agents," for Defendants have no power to control or direct their behavior. Fed. R. Civ. P. 65(d)(2)(B). And they are not invariably "in active concert or participation" with the Defendants, Robinson, 83 F.4th at 878, because independent law-enforcement officers are not "in privity" with Defendants, id. at 881. While the Attorney General communicated the Court's view that law enforcement should not make arrests under SB 4-C, he did so solely to comply with this Court's order—which Defendants maintain is unlawful. At most, this Court's injunction may extend only to non-party law-enforcement officers that "aid and abet" Defendants in violating the injunction, id. at 879—a vanishingly narrow group, seeing that Defendants have committed to abide by this Court's orders. The Court's injunction is overbroad to the extent it declares otherwise.
This is quite right. If the Plaintiffs sued the wrong defendants, that was their choice. We saw something similar during the same-sex marriage litigation in Alabama. The plaintiffs did not sue all of the probate judges, and as a result, judges who were not sued could not be subject to the injunction. The judge in that case acknowledged that the injunctions did not compel any nondefendant officers to issue licenses and did not compel issuance of licenses to any nonplaintiff couples. It took a class certification to bring in all of the probate judges and plaintiffs. (I discuss this history at pages 272-276 of this article.)
People often complain about universal injunctions against the federal government. But there are similar injunctions against state governments. The District Court cannot enter a "universal injunction" against all officials in the state. Justices Gorsuch and Kavanaugh made this point clear in Labrador v. Poe. The correct approach would be to certify a class of all named law enforcement officials. Of course, I don't think you can certify a class with an ex parte TRO, but D.C. federal judges do so consistently now.
The District Court judge is also determining whether to hold the Attorney General in contempt.
A Miami federal judge said Tuesday she was "surprised and shocked" when state Attorney General James Uthmeier first told police officers to obey her order not to arrest undocumented immigrants entering Florida but later said he "cannot prevent" them from making arrests under a new state law. U.S. District Judge Kathleen Williams is considering whether to find Uthmeier in contempt of court.
…
"What I am offended by is someone suggesting you don't have to follow my order, that it's not legitimate," Williams said.
The judge's order with regard to the named parties, and those under their supervision, was legitimate. But courts cannot issue orders against unrelated parties. The Attorney General, as the chief legal officer of the state, gave legal advice to the state. That is not a contemptible offense. I see shades of Judge Boasberg here, who urged the plaintiffs to replead their case, certified a class, ordered the planes to turn around, and then sought to hold the executive branch in contempt.
Worse still, this was all done following an Ex Parte TRO where an appeal is not even possible. I think contempt proceedings during these fast-moving proceedings, where there is not even an opportunity for an appeal, are a mistake.
The real issue, I think, is that judges have become too confident in their power to issue universal ex parte TROs. But when the executive branch seeks to hold a court to the conventional rules, the judges recoil.
To quote Justice Alito, "Both the Executive and the Judiciary have an obligation to follow the law." The executive branch has to enforce orders that bind the executive branch. And Courts cannot enjoin non-parties. Each branch must stay in their lane.
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Of course! The plaintiffs should have sued every single LEO in Florida, instead of being lazy and only suing their bosses!
That's what class certifications are for. And the AG is not the "boss" of all the state's law enforcement agencies.
Way to miss the point. Prosecutors and state attorneys are not the "bosses" of law enforcement. They are independent arms of the executive branch.
Even if this is accurate in FL (I don't know one way or the other), wouldn't it be pointless to arrest people with this order in effect? No attorney will be allowed to handle the arraignments on behalf of the state, so they would need to be quickly released, nor could they be prosecuted.
It depends on how broadly you read the "prohibiting [them] from enforcing" the law clause. If "enforcing" only means 'arresting', you might have a point. But if you read "enforcing" to include continuing to conduct investigations and collect evidence, then you interfere with a lot of routine police activities aimed at preserving things that will be needed if the temporary injunction is not made permanent - things that might be irretreivably lost in the meantime.
Again, this is a temporary restraining order. No decision has been made (much less appealed and upheld) on the merits. The point of a TRO is only to preserve the status quo and prevent irreparable harm? What irreparable harm justified either interpretation of this order?
And this from the crowd that wants every individual illegal alien, all 20 plus million, to have a trial before deportation.
It appears to me that if any law enforcement officer, who is not a party to the lawsuit, is cited for contempt for violating the District Court's order, there will be presented a question of fact as to whether the individual alleged contemnor is "in active concert or participation with" "the parties" or "the parties’ officers, agents, servants, employees, and attorneys" within the meaning of Fed.R.Civ.P. 65(d)(2).
It also appears to me that the lead Defendant, in his capacity as Attorney General, purporting to advise non-parties that they are free to flout the court's ruling by enforcing the challenged statutes is pretty powerful evidence of such non-parties acting "in active concert or participation with" the Attorney General within the meaning of Rule 65(d)(2)(C).
It is seldom wise for a litigant to piss off the finder of fact.
The District Court's order converting the TRO to a preliminary injunction explains in detail at pages 37 through 47 that local law enforcement agencies and officers are indeed bound by the injunction. https://storage.courtlistener.com/recap/gov.uscourts.flsd.686918/gov.uscourts.flsd.686918.67.0.pdf
Kind of a principle of contagion thing? The moment somebody subject to the order points out to you that you're not subject to it, you become subject to it?
It's more like, if the Judge orders you to send a letter notifying the "law enforcement community" (TM pending) of something, and you send the letter, you've conceded that you are in charge of the "law enforcement community." If you don't, you are in contempt.
Nah. If the judge orders me to declare I’m a Klingon or be in contempt, my declaration merely reveals that I’m saying what I was ordered to say. I’m not conceding anything.
Brett, are you familiar with the concept of plausible deniability? If the parties and non-parties are not in cahoots, the latter has no need of that.
"It is seldom wise for a litigant to piss off the finder of fact."
That statement shows that the courts are out of control. That judge owns any death caused by an illegal immigrant in Florida.
Unclear on the concept of probable cause, rloquitur?
Do you mean "proximate" cause? Unfortunately, that's not really an issue when it comes to politics. If some illegal is released due to her bullshit orders, and he winds up killing someone, then that's on her from a moral standpoint. Just like Zadvydas v. Davis. The five Justices who imposed that own the deaths caused by it.
Right. I did mean proximate cause, and I had a brain fart.
The judge is not running for office. Her job is to adjudicate according to the rule of law. Something the MAGA cult has quite a problem with.
She's pretty wide of the mark, and the judiciary won't be able to take a sustained assault on its legitimacy.
It’s not very wise for a court to abuse its authority but that shit is a daily occurrence these days.
TIL Rule 23 authorizes defendant class action. I'm not sure if this is useful. It's definitely not a regular practice in any court.
It appears that there is a circuit split over whether Rule 23(b)(2) (injunctive class action) can be invoked in defendant class action: compare Henson v. East Lincoln Township, 814 F.2d 410 (CA7 1987) (no) with Brown v. Kelly, 609 F.3d 467 (CA2 2010) (yes).
I think the current practice is that an injunction against the attorney general binds all subordinate officials, if the AG is subject to Ex parte Young. (That is, if the AG cannot enforce the law at all, as in WWH, then suits against AG do nothing.) Injunction against Ms. Bondi, for example, would bind all cops in the FBI. I might be wrong, though.
The FBI is part of the DOJ, so FBI agents would be subordinate officials to the US AG. My understanding is that this relationship does not generally hold for state AGs and state police agencies. It most certainly does not hold for state AGs and local police officers.
Local police officers are not subordinate officials to the state AG.
Professor Blackman kvetches that the District Court issued "an Ex Parte TRO". That is a falsehood.
On April 3, 2025, the Court issued a paperless order providing:
https://www.courtlistener.com/docket/69834882/florida-immigrant-coalition-v-uthmeier/ The TRO issued on April 4, 2025 recites at footnote 1:
https://storage.courtlistener.com/recap/gov.uscourts.flsd.686918/gov.uscourts.flsd.686918.28.0_2.pdf
Professor Blackman also conspicuously fails to mention that the District Court held hearings on April 18, 2025 and April 29, 2025 at which the parties appeared and presented oral argument. The Court thereafter converted the TRO to a preliminary injunction. The Defendants have already filed a notice of appeal therefrom, so Blackman's whine about the TRO being unappealable has become moot.
It appears that Professor Blackman regards the truth as such a precious commodity that he uses it sparingly.
1) A TRO was issued. This is without question
2) The only other question is was it "Ex Parte"... Is there any evidence that JAMES UTHMEIER, et al., and their attorneys were at this hearing for the TRO and had an opportunity to respond at the hearing? If not, it may be considered Ex Parte.
From a quick perusal of the docket, it does not appear that there was a hearing on the TRO; it was decided on the papers. The defendants had notice of the motion (not a lot, but that's of course the nature of a TRO); that makes it not ex parte.
The defendants had notice of the motion (not a lot, but that's of course the nature of a TRO); that makes it not ex parte.
Which is a dodge. If you have notice and a very short time to respond, it's effectively ex parte. Not unique to this case, for sure, but still an abuse.
A law professor such as Josh Blackman should not toss about legal jargon inaccurately.
"Ex parte" and "with notice" are antonymical. One cannot be the other.
I'm sorry but that's not right. "Ex parte" means "from one side" - that is, without the participation of the other side. By definition, if you're not on notice of a court proceeding you can't participate but that is not the only scenario where your participation is impossible or forbidden.
So, yes, you can definitely be "with notice" but still denied participation, making the action "ex parte".
You missed the word "effectively."
I spend three days drafting a TRO that Not Guilty should be enjoined from practicing law. I file it with the Court, give you notice, and the judge enters it 20 minutes later. It's with notice, but effectively ex parte.
Well, you can posit unrealistic scenarios to prove anything. What if you do the thing you describe, but the judge enters it two weeks later… but didn't bother to read NG's brief first? Wouldn't that be "effectively" ex parte also?
Where in the docket were law enforcement agencies made parties to the farce….er proceeding?
The Judge entered the TRO on April 4 expressly pursuant to Rule 65(b)(1) for "a temporary restraining order without written or oral notice to the adverse party or its attorney." The AG also refers to this in the letter and the brief linked in the OP as an ex parte TRO. It was a legal ex parte TRO.
Law enforcement agencies were not parties. Not sure why you fail to grasp this but feel free to rant on, it means nothing.
Josh, when you say something sane I should register my agreement. Yes, co-equal branches, Pres Andrew Jackson, etc. Why are you the only one who knows this.
1) Nothing in the constitution says that the branches are co-equal.
2) In any case, this is a federal court and a state defendant, so that cliché wouldn't apply anyway.
That only adds to the lawlessness of this "judge's" order.
Crazy Dave is an imbecilic clown troll. Don’t play with him, her and/or it.
It is a fundamental principle of Anglo-American jurisprudence that one is not bound by proceeding to which one is not a party. See Martin v Wilks.
In any event, the AG should ignore the order and any contempt proceedings. He should write a letter to the judge that says, "Good luck with that, lawless idiot."
And who cares if this "judge" is offended?
Given that the Attorney General was the lead named defendant, the very existence of the letter to other parties is, itself, evidence that the unnamed parties are acting in concert with him and vice versa.
Moreover, Professor Blackman is using a common tactic he has done over the years: presenting a common, routine practice he happens to disagree with as being somehow novel.
Many, many state laws have had their constitutionality challenged in federal court over the years. And until now, it has never been thought necessary to sue every law enforcement officer in the state to do so. It has often been considered sufficent to sue the attorney general. The Florida attorney general’s take on things is a novel one. Professor Blackman’s commentary - treating the Florida Attorney General’s novel argument as settled law and the Disteict Court’s routine order as if it were novel - turns the tables and distorts the reality of the situation in a rather disingenuous way.
Given that the Attorney General was the lead named defendant, the very existence of the letter to other parties is, itself, evidence that the unnamed parties are acting in concert with him and vice versa.
No, it isn't. The AG provides legal advice to the State and its officers.
And who is going to prosecute any suspected criminals that LEO detains? Wouldn't a police officer be interested to know whether anyone they arrest could be prosecuted?
This whole thing about law enforcement not being bound when every prosecutor is barred from enforcing a law is ludicrous.
Bored says it but I'll try to say it even more clearly. Attorneys General wear two hats. One hat is as head of the prosecutors of the state, charged with prosecuting crimes against laws of the state. The other hat is as the head lawyer for the state and all its employees.
In other words, while Uthmeier is the lead prosecutor against the rest of us, he is the lead defense attorney for state employees. Doing his job while wearing that second hat cannot possibly be 'contempt' under a TRO that only addresses his role while wearing the first hat. This judge grossly overstepped.
Following your logic, then a competent defense lawyer for every state employee would advise them that they shouldn't be fucking arresting people when the state has been explicitly barred from prosecuting them.
No, you're missing the point. A TRO is not a ruling on the merits.
And then there are variations between states.
In some, Attorneys General have plenary authority over locally elected prosecutors, while in others, their authority is more limited (usually to removing criminal prosecutions from the latters' jurisdiction)
As KenveeB pointed out, class certifications may be granted.
By the way, you're also misstating history. You sue the AG to stop prosecutions under a law. And when you win, the police naturally stop arresting people for that law.
But that logic doesn't work when all you've got is a temporary restraining order. From the perspective of the police, they don't yet know whether the AG or the ACLU will win. If they do nothing until the AG wins on the merits, they will have let evidence get cold and offenders flee. None of that makes sense (from their perspective) during the temporary restraining order period. They weren't named as parties so they continue to do their jobs until a final decision is issued.
There is a current practice whereby states, before they execute someone, wait on the resolution of appeals with SCOTUS. This is a courtesy, but a state would be well within its rights to (a) execute someone in the absence of a stay and (b) not make service of process easy (so that some last-minute stay isn't communicated). Same here--the practice that has grown up is that states cooperate fully with making sure that an order barring enforcement of a law is filtered to everyone. But that's courtesy too, and the states are under no obligation to provide this courtesy.
I suspect that's why Judge Xinis is so pissed. Generally, the government, if it made a mistake, would just fix the mistake. So Kilmar would be brought back. Trump and crew think that courtesy is a two-way street and hence aren't helping out the courts. The reality is that, with Kilmar, if he is sent across the border into Guatemala, then Xinis would literally have no power to order Kilmar back to the US, but we all know that she would do it. So why would Trump be courteous to these out of control hacks?
There is not a dispute about whether the Attorney General is a proper party to this lawsuit, just whether the AG controls every law enforcement officer in the state, named or unnamed. Blackman argues that this would require either making them parties to the case or forming a class action. The Complaint asks for a class action, so that's not really disputed either.
Also, the judge's order is replete with precedents against Governors (though perhaps also AGs), yet the Governor was not sued here. That would clearly cover state law enforcement officers, but he wasn't worth the extra costs?
There is a need to pull an Elon and tell judges who overstep their powers to go eFF themselves. District judges need to be reined in, and it won't happen unless they're pushed. Take the gloves off. Trump needs to tell the Supremes that either they come down hard on district judges, or he will order all DOJ attorneys to ignore them. Governors should do the same.
Speaking from my own experience, federal district judges may be viewing their TRO powers too broadly and untethered from the language of Rule 65... having been on the defense side for an unlawful issuance of one (no bond) and its subsequent extension after I had appeared without the court identifying any good cause. Incidentally, that was another S.D. Fla. judge (Biden appointee). There was no appealing from that illegal TRO as a practical matter on a 4-day extension, but illegal it was.
This judge was well aware of the strictures of Rule 65. That is precisely why she ordered the Plaintiffs on April 3 to "comply with Rule 65(b)(1)(B) and Local Rule 7.1(d)(2) on or before April 4, 2025."
The "judge" doesn't seem to be very temperate.
Since this is being discussed, it is worth quoting the provisions of Rule 65(b) that govern TROs:
In my experience, (b)(1) is often followed only very loosely, and (b)(3) and (b)(4) are underutilized. In some of these cases, the defendants should be demanding a PI hearing in very short order under (b)(3). Which then becomes immediately appealable under 28 USC 1292.
(When I was first starting to practice, we dealt with a case where a TRO was issued by a state court and then we removed it to federal court. The Supreme Court had held in Granny Goose Foods, Inc. v. Teamsters,415 U.S. 423 (1974) that in such a case, the TRO expires after 10 days (which was the rule then, later changed to 14) unless the plaintiff makes a motion. The lead lawyer said he enjoyed telling the judge, "Your Honor, it's right there in Granny Goose!")
Where is the irreparable harm? An illegal immigrant that is arrested doesn't have the legal right to walk the streets anyway.
Who adjudicated the person’s status exactly?
An alien is lawfully present, or not, regardless of whether they have been adjudicated as such.
That's puzzling to me as well. Put aside the procedural aspects of this; what possible argument is there that this law is illegal? Florida is voluntarily assisting the federal government in enforcing its laws. And the feds welcome it, so there is no problem with dueling sovereigns.
If I see someone counterfeiting U.S. currency, can I be enjoined from reporting that to the FBI? For what reason?
Have you considered reading the court's opinion? Or the Supreme Court opinion on which it's based?
Aside from the merits of this, and at the risk of nit-picking, I find it irritating that the judge claims to be "offended" by the AG's position that every law enforcement agent in Florida isn't bound by her order.
Even if the AG is wrong on the merits, he's making a colorable argument that her order cannot bind law enforcement officers across the state. Florida sheriffs are elected - they don't serve at the pleasure of the Attorney General. And more importantly, even if the AG's position is aggressive, that isn't something a neutral decision-maker should be "offended" by. If the judge is so invested in the case that she takes personal offense when a party challenges her on the law, she's probably going to have trouble being objective and should consider recusal.
CommentMonkey, have you read the preliminary injunction order? Yes or no? The judge explains in detail at pages 37 through 47 that local law enforcement agencies and officers are indeed bound by the injunction. https://storage.courtlistener.com/recap/gov.uscourts.flsd.686918/gov.uscourts.flsd.686918.67.0.pdf
Unconvincingly, in my opinion. Doesn't it seem odd to you that if a federal judge could obtain jurisdiction over every state and local law enforcement agent by suing the state's attorney general, there is no case so holding?
The judge first contends the attorney general controls local law enforcement agencies. That strikes me as highly unlikely. Per the state constitution, sheriffs are elected, which is inconsistent with the notion that they report to the attorney general. The opinion doesn't even address this fundamental aspect of how state and local political power is divided.
Next, the judge attempts to loop in the entire Florida law enforcement apparatus on the theory that everyone is acting in concert with the attorney general. None of the cited authorities comes close to making the case that multiple distinct political subdivisions are necessarily acting in concert just because the attorney general publishes enforcement guidance and advice. Again, one would think the judge could find examples of prior injunctions enforced statewide via a lawsuit against the attorney general, if there were any.
So no, I don't agree that the judge has "explained" why every law enforcement agency in Florida is bound by her order, though I agree she has tried.
But even if she had, my underlying point is that a federal judge ought to have thick enough skin not to be "offended" when a party disagrees with her about the scope of her authority. That kind of verbiage makes reasonable people question whether she might be too bound up in her political views about the merits of this case to handle it objectively.
I mean, this is a question of state law and I'm not a Florida attorney, but it doesn't seem all that inconsistent to me. After all, prosecutors are elected in Florida, but I know of several cases in recent years where DeSantis removed one of them from office anyway.
The power to direct the activities of an official is not the same as the power to remove him from office.
Just the latest episode in the never ending tirade of insanity plaguing America's judicial branch.
The Constitution is insane? Enforcing it is insane?
Several commentators have argued that because the Florida Attorney General has multiple roles - chif law enforcement officer, but also chief legal advisor to and defense lawyer of government officials - if he is enjoined from doing something in one hat, he can simply declare that he is doing it in the other hat.
Would this work for corporate officers too? If a company president and chief employer is also the chairman of the board, but was sued and enjoined as President, could he simply do the same thing in his role as Chairman of the Board? What if the case were more similar, and an officer was both the President and the General Counsel of the corporation? Could he simply switch hats and act in a different capacity to avoid having to comply with an injunction applicable only to one capacity? Could the same person, acting as General Counsel, advice corporate staff to do something that, as President, he was ordered to ensure that the corporation not do?
The obvious answer to all your hypotheticals is "sometimes, yes". Also, sometimes no. It depends. For a single counter-example, consider any bog-standard discovery demand for "all emails" to or from J Smith (who, in your example, serves as both President and GC). Those emails sent in his capacity as President are fully discoverable. Those sent in his capacity as GC may be withheld or redacted as privileged. (By the way, wearing both those hats is a bad idea precisely because of the difficulties like this that it creates - but it sometimes happens anyway.)
Note that it's not a matter of simply "declaring" that he's wearing the other hat. That has to be actually true - and for state AGs, it sometimes is.
More to the point, it cannot possibly be contempt to tell the truth about who is and is not a party to a particular litigation and thus legally subject to the judge's decision.
You can see the game here. If state officials can identify an agent that the plaintiffs didn’t specifically sue and who wasn’t specifically named in the injunction, they can argue that the injunction doesn’t apply to that agent.
If you follow the logic of the argument, the next step is to argue that a new officer, or perhaps a hastily deputized deputy, would be excluded from the scope of an injunction because such was not included at the time the injunction issued.
The state of Florida is giving the judge the run-around by playing a kind of musical authority game.
Maybe so, but it gets to do that. The courts are screwing around--why should Florida cooperate?
If you want to get cynical about it, a well publicized ruling against a republican administration might just get you noticed by your senators should the administration change parties in the next few years. There are always some vacancies on the court of appeals. So go ahead and issue orders to non-parties. If administrations don't change, who cares, as you have life tenure. As much as I hate it, there are some virtues to an elected judiciary.