Lead Opinion
Opinion by Judge JED S. RAKOFF; Concurrence by Judge WALLACE.
OPINION
Between 1995 and 2001, plaintiffs Jose and Maria Elena Chavez operated a shuttle service between Sasabe, Arizona and Tucson, Arizona. Plaintiffs allege that Border Patrol agents stopped their shuttle repeatedly and in violation of their Fourth Amendment rights. Based on these allegations, the plaintiffs bring claims not only
FACTUAL ALLEGATIONS
In December of 2001, Jose and Maria Elena Chavez filed a “Bivens ” action alleging, among other things, that Border Patrol agents had violated their Fourth Amendment rights. According to the complaint, the plaintiffs operated a shuttle service that, beginning in the Fall of 1995, made two or three round trips each day between Sasabe, Arizona and Tucson, Arizona. The shuttle never crossed the border with Mexico. Both plaintiffs and the majority of their passengers are Hispanic. Plaintiffs have no training in identifying illegal aliens, and the Border Patrol, in response to an inquiry plaintiffs filed with their Congressman, allegedly informed the plaintiffs (through their Congressman) that the plaintiffs had no responsibility for assessing their passengers’ immigration status.
Plaintiffs allege that, beginning in 1995, roving Border Patrol agents stopped their shuttle on “almost a daily basis.” They allege that, because they traveled at speeds of up to sixty-five miles per hour, Border Patrol agents could not possibly have discerned “particular features of individual vehicles or their occupants reasonably probative of drug trafficking, alien smuggling or related wrongdoing, except, perhaps, in a small percentage of exceptional cases,” and so the agents had no basis for making the stops. Instead, plaintiffs allege, the stops were based principally on “the Latin, Hispanic or Mexican appearance of drivers and/or other occupants of vehicles.” Plaintiffs allege that agents occasionally referred to passengers as “wetbacks” and used profanity. An agent also allegedly told plaintiffs that plaintiffs should be able to identify illegal aliens by their uncleanliness and offensive odor. The average stop, according to the complaint, lasted five to thirty minutes.
Plaintiffs also allege that the agents have threatened plaintiffs, demanded that plaintiffs refund their passengers’ fares, required plaintiffs to reverse course, confiscated plaintiffs’ van, and removed personal property from it. According to plaintiffs, agents became angry if they did not find illegal aliens aboard the shuttle. Agents allegedly did not ask for consent before searching the shuttle, and plaintiffs never gave such consent.
In addition to suing various border patrol agents, the plaintiffs also bring claims against supervisors within the Border Patrol, specifically, James Ziglar, the “Acting Commissioner” of the Immigration and Naturalization Service (“INS”), David Aguilar, the Chief Border Patrol Agent for the Tucson sector, and Ralph Hunt, Alvaro Obregon, Felix Chavez, and Michael Campbell, who all hold supervisory positions in the Border Patrol (collectively, the “supervisory defendants”). Plaintiffs allege that Ziglar, by virtue of his position as Acting Commissioner, bore responsibility for overseeing and supervising Border Patrol functions at the sector level. In the course of such supervision, Ziglar allegedly reviewed and approved each Chief Border Patrol Agent’s enforcement program before allowing its implementation. As for Aguilar, as Chief Border Patrol Agent for the Tucson sector, he had direct responsibility for the ongoing activities of Border Patrol agents in that sector.
Plaintiffs allege that, “at various times,” they complained about the frequent stops to Hunt, Obregon, Felix Chavez, and Campbell. Because the stops continued despite their complaints and the supervisory defendants’ responsibilities, the plaintiffs allege that the supervisory defendants
Finally, plaintiffs allege that Hunt and Obregon personally participated in stops. First, after a Border Patrol agent arrested Maria Elena Chavez, Obregon allegedly interrogated her for four to five hours. Next, plaintiffs claim that Hunt personally stopped them on at least two occasions. During one such stop in the Winter of 2000-2001, Hunt allegedly required Jose Chavez to refund the passengers’ fares. During another stop in August of 2000, Hunt allegedly took the keys to plaintiffs’ van after discovering that passengers did not have appropriate documentation. In connection with this same stop, a different Border Patrol agent allegedly transported Jose Chavez to the “Three Points area” and left him there.
PROCEDURAL BACKGROUND
In August of 2002, the district court dismissed the claims against Ziglar, Aguilar, Hunt, Obregon, Felix Chavez, and Campbell, concluding that plaintiffs had failed “to specifically allege that any Defendant Supervisor was personally involved or linked to any of Plaintiffs’ alleged constitutional deprivations.” This Court reversed. Chavez v. United States, 226 Fed.Appx. 732, 736 (9th Cir.2007). We concluded that:
The complaint adequately alleges the personal involvement of the supervisors in the unconstitutional patrols. Specifically, it alleges that the defendants “personally reviewed and, thus, knowingly ordered, directed, sanctioned or permitted the roving patrol[s].” The complaint also alleges that the unconstitutional patrols were exacerbated by a lack of reporting requirements, and that the Chavezes complained to Hunt, Obregon, Chavez, and Campbell about the allegedly unlawful stops. Furthermore, the complaint alleges that Aguilar knew of the roving patrols and deliberately sanctioned them.
An unconstitutional policy and practice can be inferred from the complaint’s description of directed and repeated roving patrols, the allegation that the supervisors sanctioned them, and the allegation that the agents had supervisory authority.
Id. (quoting cmplt. ¶ 26).
After the Ninth Circuit reinstated plaintiffs’ Bivens claims against the supervisory defendants, the Supreme Court decided Ashcroft v. Iqbal,
The supervisory defendants now appeal from that decision. We have jurisdiction to hear this appeal because “a district court’s denial of a claim of qualified immunity, to the extent that it turns on an issue of law, is an appealable ‘final decision’ within the meaning of 28 U.S.C. § 1291 notwithstanding the absence of a final judgment.” Mitchell v. Forsyth,
Where an appellate court has jurisdiction to review the denial of a qualified immunity defense, it also has jurisdiction to review predominantly legal issues, such as the sufficiency of a complaint, that are “inextricably intertwined with” and “directly implicated by” the issue of qualified immunity. Ashcroft v. Iqbal,
DISCUSSION
Under Federal Rule of Civil Procedure 12(c), “[a]fter the pleadings are closed — but early enough not to delay trial — a party may move for judgment on the pleadings.” “Judgment on the pleadings is properly granted when[, accepting all factual allegations in the complaint as true,] there is no issue of material fact in dispute, and the moving party is entitled to judgment as a matter of law.” Fleming v. Pickard,
On a motion to dismiss under Rule 12(b)(6), a court must assess whether the complaint “contain[s] sufficient factual matter, accepted as true, to ‘state a claim to relief that is plausible on its face.’” Iqbal,
Applying this standard to a claim alleging invidious discrimination in violation of the Fifth Amendment, the Supreme Court in Iqbal noted that officials violate the Fifth Amendment only when they act with a “discriminatory purpose.” Id. at 676,
Relying on Iqbal, the supervisory defendants invite the Court to hold that the Fourth Amendment, like the Fifth Amendment, requires plaintiffs to allege that supervisors acted with a “discriminatory purpose.” This argument, however, misreads Iqbal. In Iqbal, the Supreme Court did not require allegations of “discriminatory purpose” in order to render supervisors liable for any constitutional violation by their subordinates. Rather, the Supreme Court noted that plaintiffs cannot base a claim against supervisors on a theory of respondeat superior, and must instead show that the supervisors, “through [their] own individual actions, ha[ve] violated the Constitution.” Id. at 676,
The Fourth Amendment, unlike the Fifth Amendment, does not require a plaintiff to allege that an officer acted with any “subjective motivation.” Brigham City, Utah v. Stuart,
Because Iqbal requires courts to apply an equivalent standard to supervisors and subordinates, we hold that, taking qualified immunity into account, a supervisor faces liability under the Fourth Amendment only where “it would be clear to a reasonable [supervisor] that his conduct was unlawful in the situation he confronted.” A lower standard would impose vicarious liability on supervisors based on their subordinates’ clearly unlawful conduct. Because the plaintiffs’ complaint, as described below, does not come close to meeting this standard except with respect to defendant Hunt, who faces liability for his direct participation in the stops, we leave to future cases the determination of what conduct by supervisors may qualify as clearly unlawful.
Judged under the standard described above, plaintiffs’ complaint fails to state a Fourth Amendment claim against any supervisory defendant except Hunt. Turning first to the supervisory defendants other than Hunt, even assuming arguendo that the plaintiffs have sufficiently alleged that Border Patrol agents conducted stops without reasonable suspicion, plaintiffs have not alleged facts that would allow a court to draw a reasonable inference that a reasonable supervisor in these defendants’ situations would have found their conduct to be clearly unlawful. The Court discounts, as it must, the plaintiffs’ wholly conclusory allegation that the supervisory defendants “personally reviewed and, thus, knowingly ordered, directed, sanctioned or permitted” the allegedly unconstitutional stops. Having done so, the remaining allegations do not plausibly suggest that these supervisors clearly should have regarded their conduct as unlawful.
First, the plaintiffs allege as to defendant James W. Ziglar only that Commissioner Ziglar, by virtue of his position, “reviews and must approve ... operation plans and enforcement programs developed by the Chief Border Patrol Agents immediately in command of Sector forces.” Nonetheless, plaintiffs do not suggest that the relevant plan and program for the Tucson sector indicated anything that would have informed Commissioner Ziglar that allegedly unconstitutional stops occurred, much less that his own conduct was, at least in the eyes of a reasonable supervisor, clearly unlawful. In the absence of any explanation of how Ziglar’s review and approval of the Tucson sector’s plans and programs—something he apparently did for each sector in the country— would have alerted him to the allegedly unconstitutional searches, the Court holds that there is no plausible suggestion that a reasonable supervisor would have found it clear that Ziglar’s “conduct was unlawful in the situation he confronted.”
Second, the plaintiffs allege as to defendant David Aguilar only that Aguilar “had line authority over and direct responsibility for the ongoing activities and operations of Border Patrol agents assigned to field duty in the Tucson sector.”
Third, with respect to defendants Obregon, Felix Chavez, and Campbell, the plaintiffs allege only that, “at various times,” they complained to these defendants about “the frequent stops.” This allegation does not specify whether plaintiffs complained to any defendant more than once or whether they informed any defendant of their belief that the stops, in addition to being “frequent,” were not based on reasonable suspicion. A reasonable supervisor would not find it clear that, by failing to investigate vague complaints of “frequent stops,” which plaintiffs made at “various,” unspecified times, Obregon, Felix Chavez, and Campbell acted unlawfully. Neither does Obregon’s alleged interrogation of plaintiff Maria Chavez plausibly suggest that a reasonable supervisor would have found his actions clearly unlawful. Instead, the complaint makes clear that Obregon interrogated Ms. Chavez only after a subordinate agent had stopped the shuttle, found that no passenger had required documentation, arrested Ms. Chavez, and brought her to a Border Patrol station. Obregon cannot have been expected to infer from such incriminating circumstances that the agent making the initial stop lacked reasonable suspicion to do so, and the plaintiffs do not allege that he drew any such inference. Thus, the complaint fails to plausibly allege that a reasonable supervisor would have found it clear that Obregon, Felix Chavez, and Campbell acted unlawfully in the situations they confronted.
In contrast to the other supervisory defendants, Hunt faces liability not only as a supervisor, but also for his direct participation in the stops. As noted above, the Fourth Amendment prohibits an officer on roving patrol near the border from stopping a vehicle in the absence of an objectively “reasonable suspicion” that the “particular vehicle may contain aliens who are illegally in the country” or is involved in some other criminal conduct. Brignoni-Ponce, 422 U.S. at 881,
Here, plaintiffs plausibly allege conduct by Hunt that would be a clear Fourth Amendment violation to a reasonable officer. Plaintiffs allege that, because they traveled at highway speeds, Border Patrol agents could not make the particularized observations necessary to form a reasonable suspicion that plaintiffs’ shuttle contained aliens. They further allege that Border Patrol agents instead focused principally on “the Latin, Hispanic or Mexican appearance of drivers and/or other occupants of vehicles,” a characteristic that, under Brignoni-Ponce, clearly does not give rise to reasonable suspicion. Plaintiffs allege that Hunt twice personally stopped the Chavez shuttle. On the first such occasion, Hunt allegedly demanded that Jose Chavez return his passengers’ fares. When Hunt allegedly next stopped the shuttle, he took the keys to plaintiffs’ van, and another officer involved in the stop transported Jose Chavez to the “Three Points area and left [him] there.”
The facts alleged in the complaint do not indicate that, when Hunt made these two stops, any observable characteristics other than race could have provided a basis for reasonable suspicion. See BrignoniPonce,
CONCLUSION
In sum, we hold that, to state a claim against supervising officers for causing their subordinates’ purported violations of the Fourth Amendment, a complaint must allege facts that plausibly suggest that a reasonable supervisor would find it “clear” that the defendant’s conduct was “unlawful in the situation he confronted.” Applying that standard to this case, we hold that plaintiffs’ complaint fails to state a claim against any supervisory defendant other than Hunt, who directly participated in the alleged underlying violations. Accordingly, we affirm the district court’s ruling with respect to Hunt, but reverse it and direct the entry of final judgment with respect to Ziglar, Aguilar, Obregon, Felix Chavez, and Campbell.
Notes
. Although the plaintiffs claim that they also have a valid Fifth Amendment claim against the defendants, the district court in 2002 dismissed plaintiffs' "First, Fourth, Fifth, Eighth, and Fourteenth Amendment Bivens claims," and plaintiffs in their first appeal challenged only the dismissal of their Fourth Amendment claims. Chavez v. United States,
Concurrence Opinion
concurring:
I fully concur in the opinion and judgment, but I would have preferred to resolve this appeal without addressing the effect of Ashcroft v. Iqbal,
Our court recently reasoned that it did not need to consider the debate regarding the extent to which the Ninth Circuit’s pre-Iqbal supervisory liability standard remains good law because the complaint’s allegations fell even under the old standard. Moss v. United States Secret Serv.,
I would choose to follow an approach signaled by a prior Ninth Circuit opinion whenever we can because it makes good sense and assists us to keep our law intact. That so many other circuit opinions have also taken the same course strongly suggests that it would be a better practice to do so here. Although I do not disagree with the standard we adopt in our opinion, I would have preferred to follow the wisdom of prior circuit opinions (including our own) and resolve this case without adopting any new standard at all.