Case :-cv-0-wqh-bgs Document Filed 0// Page of SIEGMUND F. FUCHS Trial Attorney, Torts Branch D.C. Bar No. U.S. Department of Justice Ben Franklin Station P.O. Box Washington, D.C. 00- Telephone: (0) - Facsimile: (0) - Email: siegmund.f.fuchs@usdoj.gov Attorney for Defendants UNITED STATES DISTRICT COURT SOUTHERN DISTRICT OF CALIFORNIA 0 MARIA DEL SOCORRO QUINTERO PEREZ, C.Y., a Minor, and B.Y., a Minor, vs. Plaintiffs, UNITED STATES OF AMERICA, UNITED STATES DEPARTMENT OF HOMELAND SECURITY, U.S. CUSTOMS AND BORDER PROTECTION OFFICE OF BORDER PATROL, JANET NAPOLITANO, THOMAS S. WINKOWSKI, DAVID AGUILAR, ALAN BERSIN, KEVIN K. McALEENAN, MICHAEL J. FISHER, PAUL A. BEESON, RICHARD BARLOW, RODNEY S, SCOTT, CHAD MICHAEL NELSON and DORIAN DIAZ, and DOES 0, Defendants. Case No.: cv-wqh (BGS) REPLY MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF THE INDIVIDUAL-CAPACITY DEFENDANTS MOTION TO DISMISS PLAINTIFFS FIRST AMENDED COMPLAINT CTRM: B (Annex) JUDGE: Hon. William Q. Hayes [NO ORAL ARGUMENT UNLESS REQUESTED BY THE COURT]
Case :-cv-0-wqh-bgs Document Filed 0// Page of 0 The Individual-Capacity Defendants hereby respectfully submit their Reply Memorandum of Points and Authorities in response to Plaintiffs Opposition brief. I. THIS COURT LACKS JURISDICTION OVER THREE DEFENDANTS Perhaps recognizing their failure to sufficiently allege personal jurisdiction over Defendants Aguilar, McAleenan, and Winkowski, Plaintiffs rely on new facts not found anywhere in the First Amended Complaint ( FAC ). But even these additional facts fall short of the standard necessary to require defendants to answer a Bivens suit in their individual capacity in this jurisdiction. For example, Plaintiffs note that Defendant McAleenan received a social security card from California and practiced law there over years ago; Defendant Winkowski, they claim, worked in California years ago and spoke at or attended a few conferences there; and Defendant Aguilar purportedly attended a memorial service in California and spoke there once on some unspecified date. See Opp. at -; Plaintiffs Exhibits B, C, H, I, K, L, M, and O. General personal jurisdiction is an exacting standard that requires such continuous and systematic contacts so as to approximate physical presence in the forum state. Schwarzenegger v. Fred Martin Motor Co., F.d, 0 (th Cir. 00). Plaintiffs facts of isolated and sporadic contact by these individuals do not come close to satisfying that standard. As to specific personal jurisdiction, Plaintiffs make a single argument -- that by allegedly approving a policy that had nation-wide effect, these defendants are apparently subject to personal jurisdiction in every forum in the nation. Plaintiffs do not cite a single case to support such a broad application of personal jurisdiction, and their attempt to Plaintiffs also contend that Defendant McAleenan apparently owns a home, Opp. at, in California, but their evidence indicates that Michael McAleenan owns the home and lists Defendant (Kevin) McAleenan as a previous resident; and their other evidence lists him as having been a resident of Virginia since 00. Plaintiffs Exhibits B and D. Plaintiffs also contend that Defendant Aguilar was actively involved in California State s financial aid and work authorization policies for immigrants. Opp. at. The evidence they cite, however, states no such thing, and consists of a document issued by a State Commission that in a footnote references a memo from Defendant Napolitano to Defendant Aguilar regarding a different subject matter. Plaintiffs Exhibit F. cv-wqh (BGS)
Case :-cv-0-wqh-bgs Document Filed 0// Page of 0 distinguish the relevant case law falls flat. Plaintiffs are then left with the fact that Mr. Yanez s death occurred in California. But, in the context of a Bivens suit against an individual federal officer, the Supreme Court has recently made clear that mere injury to a forum resident is not a sufficient connection to the forum. Walden v. Fiore, S. Ct., (0). Having failed to establish personal jurisdiction over these three defendants, this Court should dismiss them altogether. II. THE SUPERVISOR DEFENDANTS HAVE QUALIFIED IMMUNITY There is no dispute that Ashcroft v. Iqbal governs Plaintiffs equal-protection claim against the Supervisor Defendants (Count Six), and that under Iqbal a supervisor cannot be held liable for knowledge and acquiescence in a subordinate s use of discriminatory criteria to engage in certain conduct. U.S., -, 0 (00). There is also no dispute that Plaintiffs boilerplate allegations of discriminatory purpose and effect, no matter what the Amendment is alleged to be violated, are insufficient to state a claim. Id. Finally, there is no dispute that allegations of discriminatory intent must be rejected where there is an obvious alternative explanation for the challenged conduct. Id. at -. Here, Plaintiffs allege that the Supervisor Defendants adopted a more aggressive immigration policy on the southern border because of animus towards Hispanics and Munns v. Clinton, F. Supp. d, (E.D. Cal. 0), was not limited to allegations of mere oversight, but instead held that allegations limited to national policy implementation and oversight are insufficient to support a finding of personal jurisdiction. Plaintiffs mischaracterize (Opp. at ) the holding in Wag-Aero, Inc. v. U.S., F. Supp. (E.D. Wis. ), to be: specific jurisdiction exists where... the complaint alleges that the named supervisors failed to train agents, failed to supervise them, and failed to restrain them after receiving actual notice of their unconstitutional activities. But that was what the plaintiff had argued, and the court rejected that argument because it was not supported by the complaint. See id. at -. Plaintiffs attempt to distinguish the remaining cases by quibbling over the level of personal involvement in those cases, but cannot overcome the general principle that implementing and overseeing a nationwide federal policy does not give rise to specific jurisdiction. See McCabe v. Basham, 0 F. Supp. d, - (N.D. Iowa 00) (collecting cases). These defendants will be filing a separate opposition to Plaintiffs motion for jurisdictional discovery once a hearing is scheduled for that motion. cv-wqh (BGS)
Case :-cv-0-wqh-bgs Document Filed 0// Page of 0 Mexicans. Between this and the obvious alternative explanation, that an allegedly more aggressive policy was adopted on the southern border because the majority of illegal border immigration occurs there, the discriminatory intent Plaintiffs ask this Court to infer does not plausibly overcome that explanation and should be rejected. See id. (rejecting allegation of discriminatory intent because obvious alternative explanation explained disparate treatment). Plaintiffs have effectively conceded this argument by failing to address it in their opposition. See Walsh v. Nev. Dep t of Human Res., F.d, (th Cir. 00) (failure to address issue in opposition deemed waiver). As to the remaining two claims against the Supervisor Defendants, both arising out of an alleged use of force (Counts Two and Four), Plaintiffs maintain that the governing standard for supervisory liability is still knowledge and acquiescence. Opp. at -. But nothing in Iqbal, which actually rejected that standard, supports their argument. Although Plaintiffs maintain that the Ninth Circuit has definitively resolved this issue, the most recent case they cite conceded that whether that standard still suffices post-iqbal has been debated, and refused to resolve the issue because the plaintiffs could not meet the more lenient, pre-iqbal standard. Moss v. U.S. Secret Service, F.d, n. (th Cir. 0), cert. granted by S. Ct. (argued Mar., 0). Thus, as this remains at least an open question in the Ninth Circuit today, Plaintiffs cannot establish that the law on this issue was clearly established in June 0 when the alleged violations in this case took place. Ashcroft v. al-kidd, S. Ct. 0, 0 (0) (conduct violates clearly established law when at time of challenged conduct contours of a right are sufficiently clear so to place[] the... constitutional question beyond debate ). The remaining cases cited by Plaintiffs are distinguishable because they were limited to the constitutional provisions before them. See Star v. Baca, F.d, (th Cir. 0) (deliberate indifference based on knowledge and acquiescence sufficed because that is governing standard for underlying Eighth Amendment claim); OSU Student Alliance v. Ray, F.d, - (th Cir. 0) ( knowledge and acquiescence sufficed because the First Amendment Speech Clause is more absolute, and officials who embark on a course of conduct that curtails speech, should be held liable). cv-wqh (BGS)
Case :-cv-0-wqh-bgs Document Filed 0// Page of When Plaintiffs do discuss relevant precedent, Chavez v. United States, F.d (th Cir. 0), they misstate the standard. Plaintiffs combine a few words from two separate parts of Chavez to articulate the following holding: a plaintiff states a viable excessive-force claim against a supervisor when the facts of the complaint, taken as true, give rise to a reasonable inference that something alerted [the supervisor] to the allegedly unconstitutional [practice.]. Opp. at. The actual standard announced in Chavez is as follows: 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. F.d at (brackets in original). Plaintiffs do not even attempt to argue that they satisfied the Chavez standard, and the facts they allege fall woefully short. Plaintiffs continue to allege the existence of some supposed rocking policy, but CBP s actual use-of-force policy is publicly available and states: Agents may use deadly force only when necessary, that is, when the officer/agent has a reasonable belief that the subject of such force poses an imminent danger of death or serious physical injury to the officer/agent or to another person. See CBP Use-of-Force Policy, Chapter, Section C. (excerpted portion attached as Exhibit A). Nothing in the FAC or the additional 0 http://www.dhs.gov/sites/default/files/publications/cbp-use-of-force-policy.pdf The FAC cites to CBP s Use of Force Policy no less than 0 times. Yet, instead of providing the Court with the actual policy, the FAC cites out-of-context and incomplete statements in a hearsay newspaper article to mislead the Court into believing there is such a thing as a rocking policy. As the Court will see from Exhibit A, nowhere in the actual policy is the word rock even mentioned. The policy has always stated, and continues to state, that lethal force may be used only when the agent or another person is at risk of imminent death or serious physical injury (for instance, when an alien hurls a nailstudded wooden board which hits an agent s head). Pursuant to FRE 0, Defendants request this Court take judicial notice of CBP s Use of Force Policy so it may consider the actual language itself. See Harris v. Amgen, Inc., F.d, (th Cir. 0) (court may take judicial notice of documents incorporated into complaint by reference). cv-wqh (BGS)
Case :-cv-0-wqh-bgs Document Filed 0// Page of 0 documents attached to the opposition -- which this Court should not even consider -- even remotely suggests a change in that policy. Moreover, the actual policy comports with governing Supreme Court precedent. See Graham v. Connor, 0 U.S., () (in determining whether use of force is reasonable, courts consider, inter alia, whether the suspect poses an immediate threat to the safety of the officers or others ). To the extent Plaintiffs argue there is some secret rocking policy, the other allegations cited in the FAC actually refute this notion. More importantly, Plaintiffs fail to tie any of the Supervisor Defendants to any alleged secret policy. There is no dispute that blanket allegations that the Supervisor Defendants were aware of, condoned, approved, or tolerated this alleged secret policy are insufficient. See Memorandum of Points and Authorities ( MTD ) (Docket No. -), at -. There is also no dispute that categorical references to all Defendants in a suit involving nine named and unnamed defendants equally fail. Id. at - & n.. Beyond that, Plaintiffs allege: () the Department of Justice independently concluded based on the particular facts of one case -- where several smugglers hurled rocks at a border patrol agent at close-range while he struggled with a suspect -- that the use of force was not inconsistent with agency policy; () private citizens from a border patrol agent union expressed their opinion that throwing rocks is per se lethal force and the Supervisor Defendants did not publicly countermand this statement; and () some unnamed spokesperson stated that rocks are considered deadly weapons. Opp. at -, See Schneider v. Cal. Dep t of Corr., F.d, (th Cir. ) ( In determining the propriety of a Rule (b)() dismissal, a court may not look beyond the complaint to a plaintiff s moving papers, such as a memorandum in opposition to a defendant s motion to dismiss. ). The FAC cites an article that indicates that between 0-, agents were attacked with rocks times and responded with gunfire times, or % of the time. See FAC (citing http://bigstory.ap.org/article/ap-exclusive-border-patrol-rejects-curbs-force). Clearly, rock throwing is not deemed force sufficient to justify a blanket return of deadly force under all circumstances, nor is there any policy in effect that would support Plaintiffs contentions, where agents did not respond with gunfire 0% of the time. cv-wqh (BGS)
Case :-cv-0-wqh-bgs Document Filed 0// Page of 0 -. If these allegations are sufficient to allege knowledge of and personal involvement in some secret rocking policy as to these Supervisor Defendants, then the same would apply to virtually all 0,000 employees within the Department of Homeland Security. What distinguishes these Supervisor Defendants from the other 0,000 DHS employees? According to Plaintiffs, it is because they were in the chain of command, but that is tantamount to alleging vicarious liability, or that they are liable simply because of their roles within the federal hierarchy, an allegation the Ninth Circuit has consistently rejected. See MTD, at (collecting cases). Plaintiffs are then left with the alleged notoriety of prior shootings by some unnamed agents across the country over the course of ten years. But as the Ninth Circuit has made clear, while it might be possible that reports of prior incidents placed various government officials on notice of the underlying conduct, non-specific allegations as to how each specific defendant became aware fail to nudge the possible to the plausible. al-kidd v. Ashcroft, 0 F.d, (th Cir. 00), reversed on other grounds by S. Ct. 0 (0) (emphasis in original). The FAC does make two allegations against Defendants Napolitano and Fisher, but even there, the alleged facts are inadequate. As to Defendant Napolitano, Plaintiffs note that on one occasion, the Mexican Attorney General complained about two shootings on the border, Opp. at ; but the Ninth Circuit has already rejected the notion that a complaint regarding one or two incidents plausibly suggest[s] that a reasonable supervisor would have found [her] actions clearly unlawful. Chavez, F.d at. Indeed, the hearsay article does not even conclude that both individuals who were killed threw rocks. As to Defendant Fisher, the allegation at best demonstrates that in See also OSU Student, F.d at (implausible to believe that just because some low-level government official acted in an unconstitutional manner, higher-ranking officials must have also acted unconstitutionally); Blantz v. Cal. Dep t of Corr. & Rehab., F.d, (th Cir. 0) ( [C]ommon sense requires us to reject the allegation that the Chief Medical Officer for the state-wide prison system, who sits on the Governing Body, was personally involved in the decision to terminate [the plaintiff]. ). cv-wqh (BGS)
Case :-cv-0-wqh-bgs Document Filed 0// Page of 0 November 0, two-and-a-half years after the alleged incident occurred, Defendant Fisher reported to a newspaper that CBP, not Defendant Fisher, rejected a recommendation made by a non-profit organization regarding the use-of-force policy. See OSU Student, F.d at 0 (defendants dismissed, in part, because allegation showed only that they were aware of alleged unconstitutional conduct after-the-fact). Under no circumstances have Plaintiffs plausibly alleged that any defendant was aware of some secret rocking policy that authorized carte blanche use of deadly force against individuals throwing rocks if (and only if) they were of Mexican or Hispanic descent, as they would have to in order to survive dismissal here. Moreover, Plaintiffs have not cited a single judicial opinion holding that responding to a rock thrower by discharging one s weapon is per se excessive thereby entitling the defendants to qualified immunity in any event. See al-kidd, S. Ct. at 0 (defendant entitled to qualified immunity where no judicial opinion to date held conduct unconstitutional). III. THIS COURT SHOULD DISMISS THE DUE-PROCESS CLAIMS The Supreme Court has definitively held that use-of-force claims in the context of a seizure are governed solely by the Fourth Amendment. Chavez v. Martinez, U.S. 0, n. (00) (citing Graham, 0 U.S. at -). Plaintiffs maintain that Graham does not apply for two reasons. First, they argue that the alleged use-of-force here did not arise in the context of a seizure because there was no intent to stop or arrest Yanez. That, however, is not what they allege in the FAC. See FAC ( Agent Nelson arrived at Stuart s Bridge in response to Border Patrol Agent Diaz s radio call requesting backup to apprehend Yanez and Murrieta. ) (emphasis added). In any event, the Ninth Circuit resolved this issue in Nelson v. City of Davis, F.d, - (th Cir. 0), where it held that shooting an individual unquestionably constitutes a seizure under the Fourth Amendment, and an officer s intent to not stop or arrest the target is of no importance. Second, Plaintiffs argue that Graham only applies to free citizens, not aliens. That makes no sense. It is far more likely Graham used the phrase free cv-wqh (BGS)
Case :-cv-0-wqh-bgs Document Filed 0// Page of 0 citizens to distinguish situations involving pre-trial detainees (governed by the Fifth Amendment) and convicted prisoners (governed by the Eight Amendment). See Graham, 0 U.S. at n.. There would have been no reason to use the phrase free citizens at the exclusion of aliens where Graham did not involve an alien at all. And, it makes even less sense to believe the Supreme Court intended to limit the rights of U.S. citizens against unreasonable seizures to only the Fourth Amendment, but grant aliens greater rights to pursue relief under both the Fourth and Fifth Amendments. In any event, Plaintiffs have only found one case that suggests in dicta in a footnote that Graham might not apply to aliens, Martinez-Aguero v. Gonzales, F.d n. (th Cir. 00). Beyond that, courts routinely apply the Graham rule to aliens. See, e.g., Garcia-Torres v. Holder, 0 F.d, (th Cir. 0); Aguirre-Palacios v. Doe, No. -, 0 U.S. Dist. LEXIS, *- (S.D. Cal. Feb., 0). This Court should do the same, and dismiss Plaintiffs concomitant due-process claims (Counts Two and Three). Finally, to the extent the case law is ambiguous in this regard, defendants would still be entitled to qualified immunity, see al-kidd, S. Ct. at 0 -- a point Plaintiffs fail to address. IV. THIS COURT SHOULD DISMISS THE EQUAL-PROTECTION CLAIMS Plaintiffs apparently concede that Agent Diaz had no discriminatory animus when he discharged his weapon. Opp. at. Instead, Plaintiffs assert that their equal-protection claim is premised solely on the discriminatory animus underlying the alleged rocking policy. Id. That should suffice to dismiss the equal-protection claim against Agents Nelson and Diaz (Count Seven) because nowhere does the FAC allege they were in any way responsible for any claimed policy, nor are there specific facts alleged that would plausibly support a finding of particular animus on either of their parts. And, as explained previously, Plaintiffs have failed to plausibly allege discriminatory animus as to the Supervisor Defendants, and thus, that equal-protection claim (Counts Six) should be dismissed as well. See supra, at -. Moreover, Plaintiffs blanket allegation that the Supervisor Defendants would not have condoned a similar rocking policy against any cv-wqh (BGS)
Case :-cv-0-wqh-bgs Document Filed 0// Page of 0 other ethnic or national group is simply a formulaic recitation of the elements of a constitutional equal-protection claim, conclusory, and not entitled to an assumption of truth. Iqbal, U.S. at 0- (citation omitted). Otherwise, Plaintiffs do not even attempt to address their failure to allege that Yanez was treated differently than any other similarly situated person, i.e. a rock-thrower of different nationality or ethnicity, and have thus waived the issue. See Walsh, F.d at. These two claims (Counts Six and Seven) should accordingly be dismissed. V. AGENT NELSON IS ENTITLED TO QUALIFIED IMMUNITY Plaintiffs appear to concede that two of their alleged theories of secondary liability, ratification and cover-up, do not state a viable claim against Agent Nelson by failing to address them in their opposition. As to their failure-to-intervene theory, Plaintiffs concede that the FAC is silent as to the amount of time that elapsed when Agent Diaz discharged his weapon. Opp. at. Plaintiffs contend this means they are entitled to discovery, when it instead means they have not sufficiently alleged that Agent Nelson had an opportunity to intervene, particularly given the overwhelming case law that holds that there is no opportunity to intervene when a co-defendant discharges a single gunshot, see MTD, at 0 n. -- case law Plaintiffs do not even mention, let alone distinguish. That just leaves their conspiracy theory, which has morphed into an entirely new claim. Indeed, Plaintiffs now concede there was no conspiracy to shoot Yanez at all, but allege in conclusory fashion that there was a different conspiracy to assault Mr. Murrieta and that Agent Diaz shot Yanez in furtherance of that conspiracy. Opp. at -. One would be hard-pressed to find this newfound conspiracy in the FAC because it is not there. Nor could Plaintiffs plausibly allege any such theory because the facts they do assert indicate that Agents Nelson and Diaz arrived at the scene at different times, when Agent Diaz was already in pursuit of these two men, i.e., there could not have been any advanced meeting of the minds to assault anyone. See FAC. cv-wqh (BGS)
Case :-cv-0-wqh-bgs Document Filed 0// Page of 0 Plaintiffs also argue that Agent Nelson is liable because it was his assault of Murrieta that provoked Agent Diaz to discharge his weapon. But that is not what they allege in the FAC, which instead asserts that Agent Diaz discharged his weapon either because Yanez was about to throw another rock or threatened to videotape the incident. Id.,. In any event, the Ninth Circuit is clear that a defendant can only be held liable for provoking a situation that requires him to use force if the initial provocation was unconstitutional. Billington v. Smith, F.d, 0- (th Cir. 00). Plaintiffs allege nothing of the sort, and their secondary liability claims against Agent Nelson should be dismissed. VI. PLAINTIFFS REQUEST FOR ATTORNEYS FEES MUST BE DISMISSED Plaintiffs note that the Ninth Circuit in Nurse v. United States, F.d, 0 (th Cir. 000), reversed the striking of a request for attorneys fees, but only to the extent a fee award might later be justified based on the parties future course of conduct in the litigation, i.e., Rule or discovery sanctions. Nonetheless, the court was adamant that the plaintiff has not justified her prayer for attorney s fees relating to her Bivens claims under any statutory or contractual provision or any judicially-created doctrine and that [i]t therefore does not appear at present that appellant will be eligible for fees at the conclusion of this litigation. Id. Defendants are not asking this Court to strike Plaintiffs fee request to the extent it is based on some future course of conduct the parties might engage in during litigation -- the Court is always free under Rule to impose such fees -- but only to strike their request for some free-standing claim for fees associated with their Bivens claims. Nurse wholly supports that request. DATED: April, 0 Respectfully submitted, STUART F. DELERY Assistant Attorney General Civil Division LAURA E. DUFFY United States Attorney Southern District of California cv-wqh (BGS)
Case :-cv-0-wqh-bgs Document Filed 0// Page of DIANNE M. SCHWEINER Assistant U.S. Attorney RUPA BHATTACHARYYA Director Torts Branch, Civil Division MARY HAMPTON MASON Senior Trial Counsel Torts Branch, Civil Division s/ Siegmund F. Fuchs SIEGMUND F. FUCHS Trial Attorney Torts Branch, Civil Division Attorneys for Defendants 0 cv-wqh (BGS)